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When to Challenge an Election
Consider challenging the election if any of these situations occurs in your election.
Note: This list is not exhaustive. If other unusual election conditions appear,
they should be fully investigated, and election results not certified until the investigation is
complete. Unfortunately, investigation and verification can be difficult with the election equipment
currently in use in most U.S. jurisdictions. This is one of the reasons Standing For Voters suggests
you prepare in advance!
About Election Challenges and Remedies
A variety of processes exists for addressing election problems, including recounts, administrative
remedies, litigation, and even re-votes. Criminal prosecutions for election fraud should be undertaken
where evidence is present. Should the election in which you are running need to be challenged, your course
of action will depend upon many factors, including:
- What problems occurred
- What evidence is available
- Type of election equipment in use
- The state and sometimes the county in question
- The office you are seeking
- Available time before certification of the election
- Resources (professional, financial, etc.) available for investigation and challenge
- Unfortunately, the perception of whether or not a challenge would change the election outcome
must also be considered.
It's likely you'll need legal advice about whether and how to mount an election challenge. We
recommend establishing relationships before the election with attorneys specializing in election
law. There may be action you can take now that will both decrease the likelihood that you will need
to mount an election challenge and prepare you to challenge if necessary.
In some situations, challenging the conditions of an election must be done before or during the
election. For example, were you to discover that the touchscreen voting machines slated to be used
were operating on illegal software, immediate action before the election would be required. During
an election, were you to discover that voting machines were malfunctioning at a precinct, causing
long lines and voters to be turned away, immediate action would have to be taken. Malfunctioning
electronic voting machines should be removed from service for the remainder of the day,
"quarantined" and investigated. (Should this happen, make sure the serial numbers on the machines
are recorded by someone in your campaign.) Attorneys can be reached during the election through the
1-866-MY-VOTE hotline. Legal action including court orders might be required to re-enfranchise voters.
The following resources can help you begin researching the available remedies should conditions in
your particular election fail to achieve a true basis for confidence in the election results.
Election Law
Election Law @ Moritz's e-Book on Election Law
Links to State Election
Codes
Election Certification Dates by State (from the National Association of Secretaries of State)
Recounts
Summary of
State Recount Laws (2004?)
Links to Recount
Laws by State
(2004?)
Congressional Challenges (House of Representatives)
Federal Contested Elections Act (FCEA)
Open CRS (Congressional Research Reports for
the People) summary of FCEA
Additional Information on
Election Disputes in House Races
More resources will be added to this page. Please check back periodically.
"Phantom votes" Precinct results show more votes than voters.
What this may indicate: Test votes may not have been erased from the machines before the
election, voters may have been given a ballot with races outside their precinct., or voting
machines may have been programmed incorrectly.
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High undervotes. Precinct results with high, unexplained numbers of ballots
with no vote for any candidate in your contest.
What this may indicate: A tabulation error as vote data was entered into the central tabulator,
or machine malfunctions at the suspect precincts.
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Inconsistent results from different types of voting. Precinct percentages for
absentee, early voting, and election day are inconsistent. For example, if a candidate gets 50%
of the absentee vote and only 25% of the election day vote, an error may have occurred.
What this may indicate: Voting machines that were intentionally or unintentionally programmed to
produce results other than a true reflection of votes cast. Or, the paper ballots or on-screen
ballots for those precincts may be confusing. Or, an error in transferring precinct results, early
voting results, or absentee results to the central tabulator.
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Precinct results that don't match with demographics.
What this may indicate: Voting machines that were intentionally or unintentionally programmed
to produce results other than a true reflection of votes cast. Or, the paper ballots or on-screen
ballots for those precincts may be confusing. Or, an error in transferring precinct results, early
voting results, or absentee results to the central tabulator.
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E-voting machine failures. Voters complain that the screen didn't show all the
candidates for a contest, was missing a contest completely, or that the machine visibly flipped
their vote to a different candidate.
What this may indicate: Voting machines that were intentionally or unintentionally programmed to
produce results other than a true reflection of votes cast. (Note: electronic voting machines can
also "flip" votes from one candidate to another and leave no evidence, so while witness reports
of vote flipping indicate a problem, the absence of these reports does not indicate that votes
are being tallied accurately.)
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Long lines at the polls and/or polling hours extended. Disproportionate distribution
of equipment or machine breakdowns can force voters to wait in long lines. This means that those
who couldn't wait or come back, couldn't vote.
What this may indicate: Foul play, error or unfortunate disenfranchising of blocks of voters.
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High discrepancy between raw exit poll data and official results. Exit polls are used
successfully worldwide to flag suspect elections that warrant further investigation.
What this may indicate: A discrepancy indicates either flawed exit polling or flawed election results.
Flawed election results may be the result of intentional misconduct or more benign problems, but
if the result is that the official election results are not accurate, swift and decisive action
must be taken.
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High number or serious content of incident reports made to election hotlines. (In recent
past elections, the groups running the 866-OUR-VOTE hotline have made incident report data available
online. We will post a link to this year's Election Incident Reporting System if it becomes available.)
What this may indicate: Disenfranchisement of blocks of voters. Inaccurate official election results.
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