The Democrats will seize control of the U.S. Senate if their candidates end up victorious in two very tight races. As of early Wednesday afternoon, Democrat Jon Tester was ahead of Republican Conrad Burns in the Montana race by around 3,000 votes. (The Associated Press has called the election for Tester. Burns has, so far, refused to concede.) In Virginia, Democrat Jim Webb led Republican Sen. George Allen by a little more than 7,000 votes—about one-third of 1 percent. How do you contest an election in these two states?
First, ask for a recount. The basic rules are very similar in the two states. In Montana, the losing candidate has five days to petition the state government for a recount, starting as soon as a state “board of canvassers” certifies the initial results. (The certification must occur within 20 days.) He’s only allowed to ask for the recount if he came within 0.5 percent of winning the election. If a candidate in Montana came within 0.25 percent, the state automatically pays the costs of the recount; otherwise, he’ll have to put up the money himself and will get reimbursed only if he turns out the victor.
Virginia election law gives the loser the right to petition a panel of judges for a recount within 10 days of certification if he came within 1 percent in the popular vote. The state pays for the recount if the margin is less than 0.5 percent or if the petitioner ends up on top.
In both states, the losing candidate can expect the recount to go ahead if he meets the basic requirements for making the request. Using the latest numbers from CNN, Burns is now trailing by 0.7 percent, meaning he wouldn’t qualify for a standard recount. In Montana, the loser can also ask a state judge to order a recount, but, in that case, he’d have to show “probable cause” to believe that votes had been miscounted. Burns could also try to contest the election in state court. (This is not the same as asking the state court to order a recount.) In general, he’d have to prove to the judge (beyond the requirements of probable cause) that there had been fraud or a miscount.
The loser in Virginia wouldn’t have that option. Virginia law allows a candidate to contest an election in the state courts only in presidential votes, congressional primaries, and local elections. The loser in a general election for the House or Senate has no such recourse.
As a last resort, candidates in either state can take their challenge directly to the U.S. Senate. According to the Constitution, “each House shall be the judge of the elections, returns and qualifications of its own members.” In practice, that means that the Senate can refer an election challenge to its rules committee, which can then investigate the election—and even impound votes, if necessary.
The last serious challenge entertained by the Senate occurred after the 1974 election, when two candidates from New Hampshire were separated by just two votes. The Senate refused to accept either candidate and spent months trying to resolve the election. Months later, the seat was declared officially vacant, and New Hampshire conducted a second election. (Click here for a discussion of what might happen if the Virginia race ends up on the floor of the Senate.)
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Explainer thanks Ned Foley and Steve Huefner of Ohio State University.
