The alarming trend of election redos is bigger than any one race, county, or even state.
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Last November, a race to elect the sheriff of Caddo Parish, Louisiana, came down to the slimmest of margins: a single vote.
After a recount, which affirmed the accuracy of the election results and should have ended the debate, the losing candidate, John Nickelson, challenged the outcome. A state appeals court voted 3-2 that a redo election was merited due to the allegation that 11 illegal votes were cast in the election, making it “legally impossible to know what the true vote should have been,” according to Louisiana Supreme Court Justice E. Joseph Bleich. In two separate dissents, judges who voted to uphold the election results stated there was “no evidence whatsoever” of voting irregularities that warranted overturning the twice-counted election results. Nevertheless, the court ordered the redo to be held, and the result was the same: Henry Whitehorn, a Black man, had to win his election twice. The message sent to voters in Caddo Parish was that every vote counts—most of the time.
Shortly before the Caddo Parish election in May 2023, the Texas legislature attempted to pass a law allowing the secretary of state to nullify and redo election results in Harris County if two percent of the county’s polling places ran out of ballots during voting hours. To be sure, running out of ballots is no election official’s idea of a good day. However, a ballot shortage is a solvable problem, one that officials across the country effectively avoid year in and year out with proper planning. And so last year, when the Texas legislature sought to pass this law, focusing only on Harris County—notably the state’s most diverse county—it set off our alarm bells. Like in Caddo Parish, Louisiana, it seemed an unusual and extreme remedy, far outsized to the problem it purportedly sought to address.
At the end of 2023, with challenges to voters’ eligibility and distrust in elections becoming more intense, voting rights organizations like ours anticipated that there would be even more episodes of election redos—and unfortunately, we were right. In the past several months, election officials sought or courts ordered at least five election redos in states across the country. In addition to the Caddo Parish and Harris County cases, courts have ordered redos in Presque Isle, Wisconsin, Kalispell, Montana, and Bridgeport, Connecticut, and voters filed a petition for a redo in an Ohio judicial race. In April, a candidate in Harris County, Texas, requested that a court order a new election in a race she had lost by 449 votes after she claimed a ballot shortage affected the final results. The presiding judge ruled that a new election was in order, as the narrow margin of the race indicated the true outcome could not be determined.
To be fair, redos can—in limited and controlled circumstances—serve as a guardrail in ensuring that our democracy works the way it should. For example, after the recount of a small New Hampshire race in 2020 resulted in a tie, officials held a special election to determine the winner. In this instance, officials did their due diligence and followed the long-established processes in place for settling a tie vote. The key difference between this redo and the one held in Caddo Parish, Louisiana, is that Caddo Parish actually had a winner.
The New Hampshire case is the exception that proves the rule: Redoing an election should happen rarely and only under the most genuinely extreme circumstances when no other remedy is available. Redoing an election is not so much a solution as a problem. Redoing an election expends precious resources, time, and money that could be better spent updating voter lists, modernizing voting equipment, and preparing for the next election to the benefit of expanding access. States already have robust systems in place to ensure the security and accuracy of our election systems and processes for addressing challenges to election results. Redos are not the answer to a problem more readily solved, for example, by adequate funding for elections or, in the Texas case, simply printing more ballots.
In 2012, 201,000 people in Florida could not vote in the presidential election due to long lines at polling places. That’s 200,999 more people than the 1 vote margin in Caddo Parish. Was a redo election held? No. The concept of redoing elections based on voter disenfranchisement would have been out of the question. Our election systems should not normalize them now as a solution to address issues that either already have solutions or are better addressed in the planning stages for the next election.
The problem of election redos is bigger than any one race, county, or even state. Strikingly, the language of election redos echoes the election denial that has been unwinding trust in elections since late 2020. Redos are being used to promote baseless claims that the results of the 2020 election cannot be trusted. The court-ordered redo of a mayoral primary election in Bridgeport, Connecticut, demonstrates this: Even in a situation where the election system worked as it should—catching the rare instance of alleged electoral misconduct—multiple, prominent election deniers seized on the story to make hay of the idea that voter fraud is rampant across the country and could sully future elections.
In an environment of heightened disinformation, anyone who cares about fair and secure election administration must consider how a proposed remedy to a voting problem—like redos—may advance the narrative of broader election denial and, in turn, sow mistrust in elections. As Judge Marcus Hunter, a dissenting judge in the Louisiana redo case, wrote: “[T]his Court should be careful to safeguard, and when necessary, refrain from tossing the accelerant of every closely contested election to the log pile of controversy, further stoking such divisive flames.” This is a serious warning: Jan. 6 demonstrated what such accelerants, if left undisputed, can yield.
The U.S. Constitution and federal law set a number of standards for the administration of presidential and congressional elections, including setting the date on which those elections will take place. And while redoing a presidential election has never happened, the past two general election cycles have shown that precedent might not be enough to stop some public officials from baselessly calling for it.
– Hannah Fried, Nicholas Martinez, Norman L. Eisen, Published courtesy of Lawfare.
