Resolving Election Error : The Dynamic Assessment of Materiality

The ghosts of the 2000 presidential election will return in 2012. Photo-finish, and error-laden, elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet despite widespread agreement on the likelihood of another national meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos. This Article advances such a principle, reflecting the underlying values of the electoral process. It argues that the resolution of an election error should turn on its materiality: whether the error is material to the eligibility of a voter or the determination of her ballot preference. In developing this argument, the Article offers the first transsubstantive review of materiality as a governing principle. It then introduces the insight that, unlike the evaluation of materiality in other contexts, the materiality of a voting error may be reassessed over time. This dynamic assessment of materiality best accommodates the purposes of a decision rule for election error. Indeed, the insight is most powerful when the stakes are highest: when an election hangs in the balance. Finally, the Article discusses the pragmatic application of the materiality principle, including the invigoration of an underappreciated federal statute poised to change the way that disputed elections are resolved, in 2012 and beyond