Navigating Close Elections

     Every election, candidates and ballot measure campaigns find themselves in close races, where a few votes can make the difference between victory and defeat. Campaigns in these circumstances must navigate the ballot-counting process as the Registrar’s office finishes its official tally, and should understand and be ready to exercise all of their legal options.

     This year, the COVID-19 pandemic and contentious Presidential election have significantly impacted election procedures, such as every California voter being mailed a ballot, “ballot harvesting” and “ballot drop boxes,” and expected high turnout and delays in processing ballots. Court cases in other states about whether registrars can reject vote-by-mail ballots due to signature differences, and when ballots must be postmarked or received, may also impact our elections.

   The Sutton Law Firm works with campaigns every election cycle to help them develop effective post-election strategies. Monitoring the ballot counting process, being on the lookout for evidence of fraud or misconduct, and answering legal questions are necessary parts of any campaign locked in a close election. If, on or after election day, your campaign finds itself in a close race, or if you are interested in knowing more about monitoring close elections, please feel free to contact one of our attorneys.

     One role for a campaign’s representatives – including election attorneys and staffers who are trained by election attorneys – is to carefully observe the processing of vote-by-mail ballots and provisional ballots, and the duplication of “spoiled” ballots. While observing this process, representatives can challenge the Registrar staff’s decisions to accept, reject, or re-make ballots, based on certain legal criteria. Having observers who know what to look for and how to advocate during this process can be crucial.

     An election attorney can also help a campaign in a close race consider its formal legal options. The first option is to request a recount within five days of the certification of the election results. The recount can be done by hand or machine, and the party requesting the recount must pay the recount costs (but can recover them if successful). The second option is to pursue an election contest in Superior Court if there is evidence of voter fraud, illegal votes, voter disenfranchisement or other significant flaws in the electoral process, based on voter or observer affidavits about problems at polling places, print-outs from the Registrar’s office, etc.

    All the best on election day. For more information about post-election issues, please feel free to contact Jim Sutton, Brad Hertz, Matthew Alvarez or Nick Sanders.