Almost every election cycle, some outcomes come down to a small handful of votes. With months of long days, late nights, and lost weekends and millions of dollars in donor investments on the line, campaigns, ballot measure committees, and their donors need certainty that every vote is fairly counted. Combining our nationally recognized Election and Political Law Practice Group with industry-leading litigators, Covington is uniquely positioned to help clients navigate disputes and recounts in close elections.
From Alaska to Washington, DC, our bipartisan team of election law experts and litigators help clients prepare for election challenges and disputes before they occur and navigate high stakes recounts and disputes before election officials and in courts across the country.
While recounts and litigation rarely reverse even close elections, the stakes are high. In 2024, more than 150 ballot measures were submitted to voters in 41 states. Collectively, these campaigns raised more than $1.3 billion. Candidate elections raised billions more.
These races often hinge on very few votes. In 2024, an Alaska statewide ballot measure committee that had raised nearly $13 million in contributions faced a recount of its narrow 737-vote victory. In 2019, a candidate for Boston City Council defeated her opponent by five votes in the general election. After a recount, the winning candidate’s margin of victory shrank to a single vote out of nearly 50,000 cast. After a month-long recount ending in the Supreme Court’s landmark decision in Bush v. Gore, Texas Governor George W. Bush defeated Vice President Al Gore by just 537 votes in Florida (out of nearly six million cast), securing enough electoral votes to become President.
While most elections end decisively, political committees, donors, and voters expect that when an election is close, their side will use every tool available to ensure their votes are counted.
That’s why political committees must prepare for post-election battles even before the polls close and must act quickly and decisively if the initial results reflect a possibility of a recount. After spending millions of dollars over many months, mobilizing volunteers, and persuading voters, political committees must be prepared to defend their investment—both before state election offices and, if necessary, in court.
Election challenges can take on several forms, including recounts, canvassing board proceedings, litigation in state and federal court, and, in exceptional cases, proceedings before Congress. Some disputes even occur before Election Day, including challenges to ballot access, candidate eligibility, or voting procedures. Effective preparation for a disputed election requires not only specialized knowledge of state and federal election laws, but also litigation firepower to quickly and successfully bring disputes to court.
While most stages of a campaign focus on securing the most votes, even the best managed campaign can be derailed by a recount or a lawsuit that reverses the outcome. Thus, effectively preparing in advance for a potential challenge can avoid turning a victory in the ballot box into a defeat in the courtroom.
Any political committee supporting or opposing a candidate or ballot measure should take several steps early in the campaign to protect its interests in a potential dispute:
- Engage seasoned election law counsel to prepare for a potential recount. Each state has different rules defining permissible grounds for recounting or challenging an election. Experienced election law counsel can help campaign committees navigate these often arcane election rules.
- Master state law. With the guidance of counsel, political committees must understand, before Election Day, the grounds for challenging an election—such as results within a certain margin, irregularities with the counting or certification process, polling place issues, mail-in ballot problems, or voter registration issues—as well as the procedure for obtaining a remedy. For example, in extremely close races, a recount could swing the outcome. In other cases, judicial intervention may be necessary to correct violations of state or federal voting rules.
- Prepare to challenge (or defend) ballots. Political committees should work with counsel to ensure their staff and volunteers are well equipped to identify balloting issues and polling place irregularities, and to document them for potential challenges. Each committee should also have a group of voters or representatives ready to petition for a recount or file other challenges, if required by state law.
- Prepare for litigation. As Election Day approaches, counsel can help prepare complaints, motions, and other filings in anticipation of litigation, just in case. Successfully challenging an electoral defeat, or defending a victory, may depend on initiating judicial proceedings quickly, through reputable counsel.
And, when the initial election outcome is close, the committee must move fast to either seek a recount or defend its victory in the recount proceeding. Recount proceedings typically operate under tight deadlines, with a need for substantial in-person resources to monitor vote-counting, lodge objections to ballot rulings, and, where necessary, seek timely relief in court.
Covington’s Election and Political Law Practice Group combines exceptional substantive election law knowledge in all 50 states with world-class litigation talent to help clients navigate both pre- and post-election disputes. Our election expertise spans state election procedures, federal election and voting laws, and recounts. Our team also includes seasoned litigators with experience handling not only election-related matters but also commercial disputes, white collar criminal defense matters, and congressional investigations, and our interdisciplinary approach to matters firm-wide ensures our political clients and their major donors can also draw on the skill and experience of our nationally recognized litigators.
Back
