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With an usually high number of competitive House and Senate contests on tap this Election Day, lawyers, consultants and strategists are already beginning to mobilize for what could be a divisive and expensive aspect of the post-election process: recounts.
The fact that many states will be using increasingly controversial electronic voting machines — in some cases, for the first time — increases the likelihood that some results will be in dispute.
“Most cycles there are three or four races that are unresolved in the days immediately following the election,” said Chris Sautter, a Democratic recount consultant and lawyer. “Because of the large numbers of races in play this cycle — combined with the changes brought on by the Help America Vote Act — there will be a greater number of recounts than usual.”
Sources from both parties declined to discuss detailed post-Nov. 7 plans on the record, often saying it was “too early to tell.”
“For now, we’re focused on the election,” said Sarah Feinberg, spokeswoman for the Democratic Congressional Campaign Committee.
But troop movements by both parties appear to hint that something big is in the works, including a recent appeal to the Federal Election Commission on recount financing and enlistment of thousands of paid and volunteer poll watchers and lawyers.
In August, Democratic campaign finance lawyer Marc Elias and others, on behalf of Senate Republicans and Democrats and the Pennsylvania GOP, asked the FEC to clarify how recounts may be financed. Agency commissioners voted 4-2 to impose individual hard-money contribution limits to re-tallies: $2,100, if made directly to candidates’ campaigns; $10,000, if made to state party committees.
Estimates at the time of the FEC’s early-October decision indicated statewide recounts could approach $5 million, a tab that often must be paid within days of an election and one that would appear to be well outside the usual reach of a campaign’s bank account.
In 2004, a typical Senate candidate spent about $2.6 million on advertising, staff and other campaign costs, according to the Center for Responsive Politics. The typical tab for a House race: about $532,000.
According the Elias, a variety of factors are involved before a party decides to appeal an election result, typically to the secretaries of state or election administrators. Alleged voting irregularities, equipment malfunction and other issues can play into a decision to request a recount, Elias said.
But any decision to appeal, he said, is decidedly unmathematical, based more on a combination of factors rather than rigid metrics.
When a state cannot settle a disputed election, the fight could wind up in the hands of House and Senate committees.
“Under the Constitution, [the House and Senate] can decide the qualifications of its Members, which is to say who won,” Sautter said. “Under rare occasions the House or the Senate will conduct an investigation into a House or Senate race to determine who the actually winner is.”
Sautter also said a variety of new HAVA requirements — like electronic voting machines — will put a strain” on an already delicate system and cast “doubt on who the real winner is.”
Under HAVA, Sautter said, “every jurisdiction has to to offer provisional ballots, which take longer to count. Under some state law, some provisional ballots don’t get counted until the canvass.”