Lower courts derive their “remedial powers”—the ability to right wrongs—from 3 sources: federal laws protecting federal rights, statewide election laws, and powers inherent in the courts called “equitable powers.”
Statewide election laws deal largely with procedural matters of how the votes are counted or a result is challenged. However, if there are suspicions of fraud or just widespread technical deficiencies in ballots, courts will likely figure out an appropriate remedy using these equitable powers, and looking to past court decisions for inspiration. If courts have to decide how to provide a remedy in a presidential election, they will likely look to their past election dispute cases, and consider if the normal remedy is appropriate for a presidential election’s unique circumstances. The usual remedies vary by state, sometimes significantly.
Florida is known for strict treatment of absentee ballots in local or statewide races. In the presence of widespread irregularities in absentee ballots, Florida courts have thrown out all absentee ballots and picked the winner based on the remaining votes, as happened in the 1997 Miami mayoral election. However, given the importance of a presidential election and the resources available to determine the true winner, this remedy would be inappropriate so Florida courts would likely hold an exacting recount instead.
North Carolina courts have been similarly strict. In one election, a failure of voting equipment resulted in a failure to count a substantial number of absentee ballots. The dispute over that election was ultimately resolved by the state legislature, in accordance with preexisting state law. That election could set an important precedent, because an analogous state law provides that the state legislature may appoint presidential electors if the outcome of the election is not otherwise determined by a certain date. Additionally, in exceptional circumstances, where an unsuccessful candidate can demonstrate that they would have been successful in the absence of irregularities, North Carolina Courts have invalidated the defective election and ordered a new one.
Iowa recently amended its election code (presumably in anticipation of the 2020 election) to disallow election officials from supplementing missing or incorrect ballot information with information from the voter registration rolls. Previously, a ballot with an irregularity could be corrected by officials so long as voter intent could be ascertained. However, under the amended statute, and following a recent Iowa Supreme Court decision, any irregularity is fatal and cannot be corrected even when it is clear who the voter intended to cast their ballot for. The court’s rationale was that the ballots contain clear instructions and it is therefore not a burden on voters to disregard an irregular ballot.
Nevada courts are also apparently more willing than other states to throw out ballots that contain irregularities. In one case, the Supreme Court of Nevada held that a ballot containing marks other than those required for voting would not be counted. The ballots that contained extraneous markings were accordingly thrown out. This precedent could be problematic for claims of voter fraud, especially regarding mail-in ballots that are missing information or contain extraneous markings. As further evidence of this precedent, the Supreme Court of Nevada held that ballots marked in pencil, instead of with a rubber stamp as required by law, must be thrown out. Despite the lack of modern case law on the subject, it would seem that Nevada leans toward rejecting ballots with irregularities.
Arizona is similar, though not as strict. While Arizona also believes the procedural requirements surrounding absentee ballots are important and must be followed strictly, it does not invalidate absentee ballots as a class, but does tend to require new elections when irregular absentee ballots either changed the election or cause reasonable doubt about the outcome, as was the case when, for example, a county official failed to match signatures on ballots to signatures on a voter registration list.
In contrast, Ohio has a lenient policy towards irregularities, attempting to count absentee ballots when the will of the voter can be reasonably ascertained. For example, when ballots cast by voters but mailed in by a 3rd party decided the outcome of a school board election, the Supreme Court of Ohio upheld the election results. Ohio courts tend to rely on statutory remedies more than equitable remedies.
Georgia also treats ballots liberally. For example, in one case, a court found that irregularities with birthdates on absentee ballots weighed in favor of a preliminary injunction so issues with birthdates could be corrected so those ballots could be counted. The harm to voters not being able to cast their votes is considered a difficult standard to overcome. Indeed, in the case above, Georgia argued the state had a significant interest in protecting against voter fraud, meaning that absentee ballots with insignificant irregularities (like an omitted birthdate), should be counted.
Wisconsin has a similar statutory mandate to “give effect to the will of the voters, if that can be ascertained from the proceedings. . .” This has been generally interpreted to uphold election results when there has been substantial compliance with their terms. However, where substantial irregularities occur, Wisconsin courts have ordered remedies setting aside the outcome of an election.
Minnesota’s election statutes provide an extensive list of potential irregularities along with guidance for how to treat them. The guiding principle in these statutes is that every vote should be counted as long as it is possible to ascertain the voter’s intent. Thus the statute, echoed by the Minnesota Supreme Court, provides that misspellings, missing or incorrect birthdates, or other markings will not prevent a ballot from being counted.
Pennsylvania has a fairly rich body of precedent affirming the state’s reluctance to set aside an election. In general, the state would rather remove any fraudulent ballots from the total count while retaining the remaining votes. In cases where it is not possible to ascertain which specific ballots are fraudulent, the Pennsylvania court will not consider that to be sufficient to set aside an election; only ballots that are proven to be faulty can be purged. When faced with a ballot irregularity, the court has directed that officials must award those ballots to the intended recipient if that recipient can be determined by “clear and convincing evidence.”
A case from the Supreme Court of Nebraska is one of the only cases dealing with voter fraud in the state. In a hotly contested city election, city officials lied to voters in order to gain their votes. The court held that although the statements were fraudulent, they did not invalidate the election. Based on this precedent, it seems that an allegation of fraud may be a difficult claim to make in Nebraska.
Somewhere in the Middle
Michigan has a policy that is in the middle. Michigan requires that challengers prove enough ballots were tainted that the election is cast in doubt, with “enough” typically interpreted as within the margin of decision or something close. The challenger does not need to prove that the tainted ballots actually voted in favor of the result. Michigan does not discard any class of ballots in modern times and instead tends to order new elections. Michigan courts tend to rely on a mix of equitable and statutory remedies, and the interaction between them can become quite complex.
In Texas, the outcome of an election is considered “materially affected” by Election Code violations. A violation (like the absence of a signature, notary stamp, or a late ballot) would require that outcome be set aside when a different and correct result would have been reached in the absence of the irregularities. However, only in clear cases of fraud will election results be overturned. In cases of clear fraud or a violation of the Election Code, Texas throws out all of the affected ballots. But there is a high burden of proof to prove voter fraud, and the right to vote is zealously protected, so it seems an allegation of voter fraud would be more difficult to make in Texas than in states with strict treatment of ballot irregularities or fraud.