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I'm wondering about a situation where the election process clearly failed or was disrupted, leaving multiple people claiming to have won, and nobody confident in the result. Is there any plan in place, with any legal force, about how to handle that? To be clear I'm talking about an election so botched it will basically need a re-do for anyone to agree on who the President is. I don't mean re-count of the ballots, I mean scrapping the previous ballots and re-opening polling places on another day.

Examples of situations that might cause this include wartime, uncontrolled disease outbreak, terrorism, major fraud being uncovered, 8.9 earthquake, etc.

Is there any, any at all, precedent or statute or contingency for re-doing or extending an election process in whole or in part? What happens if multiple candidates claim to have won the election?

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  • I think that the answer is "yes" although I'll try to research for cases or precedents or statutes. Basically, election results don't exist until they are timely certified, and if the election official charged with certifying the result is unable to do so for good cause, a judge would have to formulate a remedy for this failure to act and couldn't punish the official if the election was not certified because it was impossible to do so.
    – ohwilleke
    Mar 6, 2018 at 3:24

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While election law differs in detail from place to place, I'll run you though some of the provisions pertinent to Colorado, where I live.

The following provisions apply to all state and federal elections in Colorado (U.S. Senator is a "state office" along with Governor, Secretary of State and a number of other offices, and a race for the U.S. House of Representatives is a "district office of state concern" along with state house, state senate, state board of education, district attorney, and University of Colorado Regent, to name the main ones). The election of federal offices is administered by state and local governments in the United States.

Section 1-11-105 of the Colorado Revised Statutes states in the pertinent part that:

Immediately after the results of an election have been certified pursuant to section 1-10-105(1) , the secretary of state shall make and transmit a certificate of election, certified under the secretary of state's seal of office, to each of the persons declared to be elected to national, state, and district offices of state concern and shall record in a book to be kept for that purpose each such certification.  If the secretary of state is unable to certify the candidate elected to a state or district office of state concern, no such certification of election may be transmitted by the secretary of state until the candidate elected has been determined.

If the secretary of state nonetheless certifies an election, it can be challenged by any eligible voter through an expedited process with some procedurally unusual aspects on a variety of grounds including the following ones that might be pertinent:

(a) That illegal votes were received or legal votes were rejected at the polls in sufficient numbers to change the result of the election;

(b) That an election judge or canvass board has made an error in counting or declaring the result of an election that changed the result of the election;  or

(c) That an election judge, canvass board, or member of a canvass board has committed misconduct, fraud, or corruption that changed the result of the election.

See Sections 1-11-201 and 1-11-202 and in general Sections 1-11-201, et seq.

Ultimately, the trial court makes a judgment in a contested election case which may be affirmed or overturned on appeal which is governed by Section 1-11-216 of the Colorado Revised Statutes, which states:

The district court shall pronounce judgment on whether the contestee or any other person was legally elected to the contested office or on whether the ballot issue or ballot question was enacted.  The court's judgment declaring a person elected entitles that person to take office when the term of office begins, upon proper qualification.  If the judgment is against a contestee who has received a certificate, the judgment annuls the certificate.  If the court finds that no person was legally elected, the judgment shall set aside the election and declare a vacancy in the office contested.

The statute does not expressly state what happens when the secretary of state doesn't certify anyone as the winner of an election, but the strong implication is that the result would be the same as it would have been if a court found that no person was legally elected, i.e. the election would be set aside and a vacancy in the office would be declared.

At that point, a vacancy election could be held as provided by statute.

The statutes do not expressly give election officials the power to cancel or reschedule an election, but they do give election officials considerable discretion to carry out an election and provide that substantial compliance with election laws is sufficient, and together this might be considered by a sympathetic court to be sufficient to authorize an elections official to cancel or reschedule an election in the face of a catastrophe that makes it impossible as a practical matter to conduct a legal election at the appointed times and places.

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  • Excellent answer, I like your sources. But they seem to only apply to Colorado State positions. Do you have any sources for Presidential elections? Could these statutes be applied to Colorado's Electors?
    – Hemsy19
    Mar 6, 2018 at 15:00
  • Yeah, what about federal elections in general?
    – Stackstuck
    Mar 7, 2018 at 0:19
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    @Stackstuck All federal elections are administered more or less entirely by state and local governments. Congress can set uniform election rules in some instances but even then states administer those rules (outside territorical/DC elections). There is federal regulation of campaign finance in federal elections, but apart from certification of results by Congress and certain civil rights actions in federal courts, elections for federal offices are governed by the state laws parallel to those for federal elections. All of the referenced statutes are applicable to elections to federal offices.
    – ohwilleke
    Mar 7, 2018 at 4:55
  • @Hemsy19 You are mistaken. They apply to all state and federal elections conducted in the state of Colorado.
    – ohwilleke
    Mar 7, 2018 at 4:56
  • @ohwilleke uh...perhaps editing that in to the answer might be a good idea?
    – Stackstuck
    Mar 7, 2018 at 9:59

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