A Big Blue Shift: Measuring an Asymmetrically Increasing Margin of Litigation

47 Pages Posted: 15 Nov 2013

See all articles by Edward B. Foley

Edward B. Foley

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: November 12, 2013

Abstract

This paper calculates the change in the vote count from initial returns to final certification in presidential elections from 1960 through 2012, for all fifty states. An analysis of these numbers shows a significant development since 2000: Democratic candidates are more likely to make major gains during the canvass (than either Republicans now or either party’s candidates earlier).

One striking statistic: since 2004 the Republican candidate has gained during the canvass only twice in a state that the candidate lost, whereas in the same three years the Democratic candidate gained during the canvass 23 times in a state the candidate lost. In previous years, by contrast, Republicans and Democrats were more evenly matched in their ability to reduce their opponent's lead during the canvass.

Focusing on swing states, the data also show that since 2004 it is increasingly likely that a Democratic candidate could come from behind during the canvass to overtake a Republican lead at the end of Election Night. More analysis is necessary to identify a cause of this "Big Blue Shift": the rise in provisional voting since HAVA? an increase in absentee voting? a combination of these and/or other factors?

But whatever the cause, it is ironic that since 2000 the nation is now more -- not less -- at risk of a presidential election going into "overtime" after Election Night (due to the potential of the lead changing in a swing state during the canvass). Moreover, the fact that this increased risk is asymmetrical, apparently making the canvass more favorable to Democrats now whereas that was not true historically, may introduce a disequilibrium in the strategic considerations of the two parties as they consider how to prepare for the “margin of litigation” in future elections. The paper, published in the Journal of Law & Politics, is available at the journal’s website.

Keywords: canvass, ballot, vote, election, president, swing state, provisional, absentee, certification, returns, HAVA

Suggested Citation

Foley, Edward B., A Big Blue Shift: Measuring an Asymmetrically Increasing Margin of Litigation (November 12, 2013). Journal of Law and Politics, Vol. 27, No. 4, 2013, Ohio State Public Law Working Paper No. 227, Available at SSRN: https://ssrn.com/abstract=2353352 or http://dx.doi.org/10.2139/ssrn.2353352

Edward B. Foley (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

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