The American Law Institute has released its updated Principles of the Law, Election Administration: Non-Precinct Voting and Resolution of Ballot-Counting Disputes, Part I: Principles of Non-Precinct Voting: Early In-Person Voting and Absentee Voting and Part III: Procedures for the Resolution of a Disputed Presidential Election. 

The entire project is broken into three parts, however ALI prioritized completing Parts I and III in light of the upcoming election.

The first part concerns the rules for “non-precinct voting,” the casting of ballots by means other than the traditional polling place on Election Day.

“State judges could use Part I in any case that involves an issue concerning early or absentee voting,” said Edward B. Foley, Reporter on the Election Law project.  “Part I embodies a commitment to the value of bipartisanship upon which this project has always been premised.  We were careful in our selection of the project’s Adviser group include representatives from both sides of the aisle. From the outset, we have recognized that for the ALI’s work on the topic of election law to be influential, it must command the respect of both major parties in our political system.”

Part III is designed to address the timetable of a disputed presidential election and the extraordinary challenge of completing the resolution within the five-week window provided by Congress.  In addition to a detailed scheme to coordinate all the essential elements needed for this situation—including a recount, the canvassing of returns, and a potential judicial contest of the result – this draft also contains a set of three schematic calendars representing the relationships among the various portions of the procedures for resolving a disputed presidential election.

“Disputed elections have played a large role in our national consciousness over the last two decades, mostly as a result of the 2000 presidential election but also because of high-profile senatorial and gubernatorial elections,” said Richard L. Revesz, Director of The American Law Institute. “Presidential elections present distinct issues for a number of reasons, including the importance of what is at stake, the very compressed five-week period, and the potential legal risks of not having procedures in place when the dispute arises.”

“Our effort to identify sound principles have been guided by the overarching norm that a well-functioning democracy involves robust electoral competition between two or more parties, and specifically in the American context that the ground rules for this competition must be seen as fair by the two major parties, rather than as the imposition of one party’s preferred rules upon the other,” added the project’s Associate Reporter Steven F. Huefner.

Jennifer Morinigo

The American Law Institute

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