Montana, Virginia and the Senate in the Balance

[UPDATE at 10:10 am, West Coast time: AP has called the Montana race for Tester. The unofficial results show about a 1,900 vote lead for Tester, though these figures may not be up to date. This update on the Virginia counting makes me even more convinced that there's not going to be a case for Allen to dispute this result.]

At this point--barring discovery of a large number of uncounted votes in Montana or Virginia that would break Republican--it is very likely that Democrats will soon be found to be the winners of the Senate elections in Montana and Virginia, giving Democrats control of the Senate. For this reason, by the end of today or tomorrow, I expect the controversy to be over and most people to get back to the business of ignoring the serious flaws with our election administration system that were revealed again yesterday.

I've already explained why a recount or contest in Virginia is unlikely.

Similar reasoning applies to Montana, and illustrates the first rule of recounts (perhaps from the "Recount Handbook"---I can't find the reference now): In a close race, it is always better to be ahead. Bush v. Gore illustrates this principle so well and explains why Gore spent all the time on the recount portion of the case before it went to an election contest.

According to the most recent report from Montana I've seen, the Democrat Tester holds a 1,739 vote lead over Rep. Sen. Burns, with the majority of uncounted ballots apparently being from areas with Democratic leanings, or provisional ballots, which many of us expect generally break Democratic. The unknown question is if there are still a significant number of absentee ballots remaining to be counted, which tend to break Republican.

If there are not many absentee ballots remaining to be counted, Burns will have a big gap to close. Given the expected margin, he likely still will have the ability under Montana law to ask for a recount and/or file an election contest. Ned Foley has just put up a very helpful post setting forth the relevant statutes and caselaw. My reading of these statutes is that unless Burns could point to some serious problem with the way the election was conducted, this race will be over too by the end of the day or tomorrow. I have seen no reports of serious irregularities with the way the vote was conducted in Montana, so it is hard to imagine what could be put in contention in a judicial contest. It certainly helps Tester that Montana uses optically scanned ballots and hand ballots. It takes away the possibility or arguing that electronic voting machines somehow malfunctioned and changed the election result.



Posted by Rick Hasen at November 8, 2006 08:28 AM

