Discouraging Election Contests

This essay offers a few proposals for discouraging losing candidates from contesting the certified result of an election. The ultimate goal in any election, of course, is to ensure that a state declares as the winner the person who actually received the most votes. But when an election is close, a candidate on the losing side might see an incentive to continue the fight in the courts on the off-chance that it would change the outcome. The candidate could challenge, for example, certain provisional or absentee ballot—even if the likelihood that the candidate will win is slim (but still theoretically present). This type of contest has the potential to damage the integrity and perceived legitimacy of both the election system and the ultimate winner. This essay suggest three initial proposals, ranging from the boldest—an outright ban on election contests—to more modest hurdles for candidates who wish to pursue a post-election challenge.