In at least one race every election night, someone in a newsroom somewhere in America utters a phrase that raises a curtain on weeks of litigation, conference calls, and scrutinizing disputed ballots:
"We could be going into overtime, folks."
This election year, with public polling showing jump balls in dozens of House contests and a handful of key statewide races, will probably be no different.
The prospect of recounts is a looming possibility not lost on both parties.
The Republican National Committee has launched a fundraising website called "NoMoreFrankens.com" that warns potential donors of consequential recounts like the 2008 Minnesota contest that ended with Democrat Al Franken's swearing-in. "We can't just win," the site proclaims. "We have to win BIG!”
Even if there are no legal challenges or recounts, it's likely that the results of several contests will not be clear on the morning of November 3rd. And there are plausible scenarios in which the balance of power in the Senate — where Republicans must net 10 seats to regain the majority — is not known for days after Election Day.
Any of the nation's close races could end up subject to legal challenges, but here's a primer on three states where out-of-the-ordinary election rules could make for a complicated aftermath if the vote counts are microscopically close.
Another Evergreen State recount?
In Washington state, for example, Republican Senate candidate Dino Rossi — who was on the losing end of a grueling 2004 gubernatorial recount — could be in for another close election on Tuesday when he tries to oust three-term Democratic Sen. Patty Murray.
Under Washington's vote-by-mail system, ballots are counted if they are postmarked by midnight on Election Day, so some votes won't be counted until Wednesday or Thursday. Washington law requires a recount if the margin of victory is less than one thousand votes and also less than one-fourth of one percent of the total number of votes cast.
A McClatchy/Marist poll conducted last week showed Murray up over Rossi by just one percent.
Six years ago, Rossi's initially-declared victory in the governor's race was reversed eight weeks later after hundreds of misplaced ballots from heavily Democratic King County were discovered. Democrat Christine Gregoire was declared the winner by a margin of just 133 votes out of a total of more than 2.8 million votes cast.
Katie Blinn, the assistant elections director and an attorney in the Washington Secretary of State's office, said that since 2004 the state has implemented new procedures "to prevent probably one of the biggest issues that occurred in 2004: that ballots were misplaced."
Blinn said that both parties in the state also learned from the 2004 election to be prepared to mobilize voters who failed to properly fill out their ballots before mailing them. Under the vote-by-mail procedure, a voter completes the ballot and then signs and dates an outer mailing envelope before sending it to a county election office. If a voter fails to sign the mailing envelope for the ballot, the count office will contact him by mail so he can sign it before the results are certified — 21 days after Election Day.
Democrats quickly mobilized to contact voters with signature issues in 2004. "That was a very pivotal post-Election Day campaign effort that they made that probably changed the outcome of that election. This year both parties are geared up to contact those voters (who fail to sign their envelopes)," Blinn said.
Neither Murray nor Rossi’s campaign was willing to say anything about the steps they are taking to be ready for a recount or disputed election. But Rossi hinted during a conference call with reporters last week that his campaign needs to be prepared, "just in case."
"If this is a very close one, we're going to have people at all the appropriate auditors' offices and watching the King County records and the others with the appropriate people to make sure that everything is done according to the rules," he said. "In '04 we just weren't as prepared as we know we need to be now. Just in case, just in case."
A nailbiter in Illinois
The Senate race in Illinois is one of the tightest contests in America, with recent polls showing two- and three-point leads for Republican Mark Kirk.
Illinois rules do not mandate recounts if the margin between the two candidates is within a certain percentage, but a candidate can request a "discovery recount" if he or she receives 95 percent of the vote total of the candidate declared the winner. The challenging campaign can then pick 25 percent of precincts statewide to be examined.
"Following the discovery recount, if they've found something they wish to pursue. They may file an election contest in the court," explained Ken Menzel, who serves as legal counsel at the Illinois State Board of Elections.
The Senate contest in the state is further complicated by a ballot quirk that places the names of Democrat Alexi Giannoulias and Republican Mark Kirk on two separate places on the ballot. Their names are listed as options for two ballot questions — one to choose the state's new, full-term senator and one to choose the lawmaker who will serve the final weeks of the Senate term vacated by Barack Obama — who left the seat for the White House — and Roland Burris, who is retiring.
Menzel says he expects that the vote totals for the two contests will not exactly match, but that it is highly unlikely that the two measures would yield victories for two different candidates. The quirky ballot has been well-publicized in the state, he said, and the more important of the two questions — the one addressing the full term — is the first on the ballot.
There's something about Lisa
Whatever the outcome in the Alaska Senate race, it will go down into the history books as one of the most bizarre in election history, a saga in which nepotism, revenge, litigation, citizen activism, and orthography all play their parts.
Sen. Lisa Murkowski, appointed in 2002 by her father, former senator Frank Murkowski to fill the vacancy he left when he resigned to become governor, is trying to become only the second senator to win as a write-in candidate in Senate history. (The first: South Carolina's Strom Thurmond in 1954.)
Murkowski lost the August Republican primary to Tea Party favorite Joe Miller, who is backed by Sarah Palin. Palin beat Frank Murkowski in the 2006 GOP primary on her way to becoming governor.
But with Republican voters divided between Miller and Murkowski, Democrat Scott McAdams has a chance to win a race Democrats had written off only a few months ago.
For Murkowski to win, enough of her supporters will need to spell her name correctly — and the standard for determining how close the spelling need be to "Murkowski" could well be the focus of post-election court battles.
Lt. Gov. Craig Campbell, who is the overseer of elections in Alaska, told The Associated Press last week that officials do not expect that minor spelling errors will invalidate write-in ballots Murkowski.
Does Alaska law provide standards on how to judge the voter's intent, if the spelling is close to the correct name, but not actually correct? "Not that I am aware," said Gail Fenumiai, director of the Alaska Division of Elections. "This would be a determination made by myself with consultation of our legal department."
On Oct. 18, the Division of Elections began offering early voters a list of the approved write-in candidates, if they asked for help in spelling a candidate's name. Both the Democratic and Republican parties in Alaska went to court to stop elections officials from giving the list to voters who needed help in spelling.
But the Alaska Supreme Court ruled Friday that voters who need help spelling the name of a write-in candidate can look at the list — but only if they specifically ask for help. The list may not be taken in the booth by the voter, Fenumiai said.
(Murkowski has tried to tutor voters by airing one of 2010's cleverest TV spots. In a mock spelling bee, a student asks, "Could you please use that in a sentence?" and the spelling bee proctor replies, "To re-elect Lisa Murkowski, you must fill in the oval and write in her name." The student then spells "Murkowski" correctly as the letters appear on the TV screen.)
With the crib sheet available, prospects were looking brighter for Murkowski. But in an eleventh-hour burst of citizen activism, the list of certified write-in candidates suddenly grew to than 150 people last week. Instigated by Anchorage radio talk show host Dan Fagan, a Miller supporter, Alaskans trooped in to state elections offices to meet Thursday's deadline for signing up as a certified write-in candidate. "It is our civil duty… this is the most honorable thing you can do", Fagan told listeners, in remarks reported by the Anchorage Daily News. Fagan's bosses canceled his show Friday after a representative of Murkowski's campaign complained.
Among the names now on the approved list of write-in candidates along with Murkowski's: Lee Hamerski and Lisa M. Lackey.
The deadline for counting the ballots is November 17. There is a mandatory recount only if there is a tie. Anything other than a tie requires a recount application from one of the candidates.