CRS report via FAS – Legal Processes for Contesting the Results of a Presidential Election, Jack Maskell, Legislative Attorney, October 24, 2016.
“Questions occasionally surface regarding potential voting fraud or election irregularities in presidential elections. (See, for example, Sean Sullivan and Philip Rucker, “Trump’s Claim of ‘Rigged’ Vote Stirs Fears of Trouble,” Washington Post, October 18, 2016, p. A1; Edward – Isaac Dovere, “Fears Mount on Trump’s ‘Rigged Election’ Rhetoric,” Politico, October 16, 2016; Daniel Kurtzleben, “5 Reasons (And Then Some) Not to Worry About A ‘Rigged’ Election,” NPR, October 18, 2016). If legitimate and verifiable allegations of voting fraud, or indications of misconduct by election officials on election day are presented, what legal recourses are available to complainants to litigate and potentially to remedy such wrongs and to contest the result of a presidential election? Presidential elections are conducted in each state and the District of Columbia to select “electors” from that state who will meet and formally vote for a candidate for President on the first Monday following the second Wednesday in December. Under the United States Constitution, these elections for presidential electors are administered and regulated in the first instance by the states, and state laws have established the procedures for ballot security, tallying the votes, challenging the vote count, recounts, and election contests with in their respective jurisdictions. A candidate or voters challenging the results of a presidential election in a particular state would thus initially seek to contest the results of that election in the state according to the procedures and deadlines set out in the laws of that specific state. After the results of an election for presidential electors are officially certified by the state, the selected presidential electors meet and cast their votes for President in December. The certificates indicating the votes of the electors are then sent to the federal government, and those certificates are opened and the electoral votes formally announced during the first week in January in a joint session of the United States Congress, under the directions of the Twelfth Amendment of the Constitution. The counting and the official tabulation of the electoral votes from the states within Congress provides a further opportunity to challenge and protest electoral votes from a state. Under federal law and congressional precedents, an objection may be made to the counting of electoral votes from a state by a formal objection made in writing by at least one Member of the House of Representatives and one Senator. Once made, each house of Congress separately debates and votes on the objection. If both houses of Congress sustain the objection, the electoral votes objected to are not counted; but if only one house, or neither the House nor the Senate, votes to sustain the objection, then the electoral votes from that state are counted.”