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Nate Silver has proclaimed the Massachusetts Senate Race between Martha Coakley and Scott Brown a 'tossup'.  Pollster.com shows Brown ahead by 3.5%.  Democrats are running around like donkeys afraid their heads will be cut off, and President Obama will be heading to Massachusetts on Sunday to rally the troops for Coakley.

And so, inquiring minds need to know what happens if, as Tuesday evening drags into Wednesday morning, the race is proclaimed 'too close to call' ?  What is the criterion for a recount, and what will a recount entail?

It turns out that the Massachusetts Secretary of State's web site has an elaborate page with an extensive discussion of Massachusetts' recount procedures for both local and statewide elections. And if you thought Minnesota was beyond crazy, think again.  Massachusetts has everything Minnesota could offer in the way of recount madness, and possibly more.

As I said, the description is elaborate; I'll try to boil it down and get at the most important points.

When can a candidate demand a recount?  

According to Massachusetts law, any time the difference in percentage vote is less than 0.5%.  

In a race that's been declared a toss-up, it's not hard to imagine that happening.  Nor does it take any imagination to see that even if the differential is 0.49% and the result is in fact clearly determined, why Coakley demanding a recount would be an obvious thing for her and the Democrats to do.

What happens if a candidate demands a recount?

First, each jurisdiction must set a date for their recount and inform the Secretary of State.  Jurisdictions seem to defined as towns and cities.

Once the recount begins, what is the procedure?

The registrars or election commissioners sit as "judges" of the protested ballots; they do not tally the vote, but may appoint the number of clerks considered necessary to do the actual recounting. In addition to clerks who read the ballot (ballot readers) and clerks who record the vote on the tally sheet (tally clerks), there should be "runners" to bring the protested ballots to the registrars for examination and decision, and if desired, a stenographer to record the protested ballots. Designated "agents" or legal counsel should make arguments respecting the protested ballots only to the registrars, not to the ballot readers.

Agents!  Lawyers!  Protests!  Before we know it 100 ballots will go missing and Joe Friedberg will demand that every car trunk in Massachusetts be opened.

What happens with a protested ballot?

Those ballots protested during the recount are counted in accordance with the decision of the majority of the board of registrars. If there is a 2 - 2 vote by the board of registrars, the ballot is counted as called by the ballot reader. The recount includes counting all ballots cast for all the candidates for the office, blanks cast, all spoiled and unused ballots, and absentee ballot envelopes and applications.

Absentee ballot envelopes!!! Remember them?  Remember the endless hours of $500/hr lawyer time arguing about absentee ballot envelopes in Franken v. Coleman?  I'll bet Massachusetts lawyers get to charge even more per hour.

What kinds of ballots are there and how will they be recounted?

The website describes four different types of ballots and how they are to be recounted: paper ballots, voting machine ballots, punchcard ballots, and optically scanned ballots.  Which of these methods are currently being used in Massachusetts I have no idea, but it is not unreasonable to assume they are all still legitimate, since the SoS web pages cannot be more than several years old.

The site notes that with respect to paper ballots:

All parties to a recount should keep in mind in their examination of the ballots that the will of the voters, if it can be determined with reasonable certainty, must be given effect. If the marks on the ballot fairly indicate the voter's intent, the vote should be counted in accordance with that intent, as long as the voter has essentially complied with the election law.

And presumably this applies to all kinds of ballots.

Note that Massachusetts has an 'essentially complied' clause, whereas Minnesota law laid out strict criteria and the Election Court ruled that these criteria had to followed to the letter.  This provides the potential for even more argument.  

The website provides examples of ballots and how and why voter intent for each ballot was judged.  Unfortunately, no vote cast for Lizard People was among the examples provided.

With respect to voting machine ballots:

For recounts in communities using voting machines, the city or town clerk, or election commissioners transmit all the records of the election to the registrars. The records include the following; voting lists used in the election, the certificates issued to voters omitted from the voting lists, the original tally sheets, the precinct clerk's election record, the sealed envelopes containing challenged ballots and absentee ballots cast, the absentee ballot envelopes and applications for the absentee ballots cast at the election, the lists of voters who were sent absentee ballots with the notation as to whether such ballots were cast or rejected, or whether the voter voted in person, and the sealed envelopes containing ballots rejected as defective.

The complete discussion is extremely detailed and intricate, looking like the specified procedures are ripe for misinterpretation and challenge.

With respect to punchcard ballots

The recount petition can specify either a machine recount or a hand inspection (!).  In a machine recount the ballots are just run through the punchcard counting machine again.  With a hand inspection, presumably each is examined, shades of the 2000 Presidential election in Florida and hanging chads...

With respect to optically scanned ballots

The same applies as with punchcard ballots.  Either run them through the machine again or visually inspect each one.

What happens after the recount?

...The protested ballots must be placed in the vault in a separate, sealed and certified envelope. Only one recount of the ballots is permitted. The registrars may not order a "re-recount" unless the number of ballots in a block does not add up to the block count (e.g. there is a block of fifty ballots and the count shows 24 votes for "X", 24 for "Y", and 1 blank)...

The results of any recount of votes cast at a primary or state election, whether or not the tally amends the record, must be reported immediately to the Secretary of the Commonwealth.

So no re-recounts.  Unless the recount miscounts the count.  And what if the re-re-count re-miscounts?  

Can the recount be appealed?

The Board of Registrars' rulings are binding and any appeal must be directed to the Superior Court in a civil action. Any such appeal should be pursued as quickly as possible. Only the ballots recorded as protested at the recount are required to be produced except by express order of the court.

So each an every protested ballot can, in theory, be appealed to a Superior Court.  Does this happen in each jurisdiction -- i.e., will every county have their own trial to handle each set of challenged ballots?  As far as I can determine, there are Superior Courts in each county.

No mention is made of possible appeal to higher courts, whereas in Minnesota an optional appeal to the state Supreme Court is expressly noted.

Of course, the text that appears on the SoS website is not the exact election law; presumably it is someone's attempt at a clear exposition of what the actual election law means, and for definitive judgements we'd have to consult the election law itself (or get judicial rulings).

How long would this all take?

No one knows, but it's obvious that it would take a fair amount of time, running into months if appeals (or even one appeal) to any court were to take place.

Any who is this WineRev of which you speak?

I noticed that Winrev, Daily Kos's amazing chronicler of the Coleman-Franken battle,  recently graced Daily Kos with a diary, having been silent for months, and has also reappeared in a few comments of late.  Get ready WineRev!  Your time may have come once more.

(David Lillehaug and Mark Elias were two of Franken's lawyers during his battle with Coleman over the recount, the Election Contest, and subsequent appeal to the Minnesota Supreme Court).

Originally posted to jpmassar on Fri Jan 15, 2010 at 04:49 PM PST.

Poll

The result of the Massachusetts Senate race?

4%6 votes
18%25 votes
47%65 votes
18%26 votes
10%15 votes

| 137 votes | Vote | Results

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