The Resolution of Election Disputes: Legal Principles that Control Election Challenges C. Common law principles ensure fairness in election challenges: Due diligence. When a candidate has been prevented from following the state’s procedural requirements for filing an election challenge, the courts will avoid an injustice by turning to common law principles. This is especially true when facts were hidden from a candidate, especially if the facts were hidden by the candidate’s opponent. Stated another way, not all election irregularities arise in circumstances that are neat and clean. Even though there is no common law basis for challenges to elections, courts will apply common law principles to the facts of an election challenge when fairness demands that they be applied. The doctrine of fairness in an election context routinely is couched in terms of determining the free expression of the public’s will. This term will come up throughout this book. It is the touchstone of courts’ discussions of how to treat the facts in these cases. This approach was taken by the Pennsylvania Supreme Court in In re General Election for District Justice, 670 A.2d 629 (Pa. 1996), and after remand, 695 A.2d 476 (1997), when it analyzed the aftermath of Joseph Zupsic and Delores Laughlin’s race for state judge in one judicial district in Beaver County, Pennsylvania, on November 2, 1993.10 After the polls closed, the ballots from all the districts were taken to the Beaver County courthouse in 156 ballot boxes. Each ballot box had on it a red numbered seal that was put on at the precinct, and each ballot box was locked with a padlock. However, the padlocks on all the ballot boxes were identical; each of the 156 boxes could be opened with the same key. Between 160 and 170 padlock keys existed. There were 22 ballot boxes in the judicial district where Mr. Zupsic and Ms. Laughlin ran. At the courthouse, election officials unlocked the ballot boxes, broke the seals and ran the ballots through the tabulating machines. Then the ballots were put back in the ballot boxes, which were locked with the padlocks, resealed and locked in the tabulation room. Three people had keys to the tabulation room. Then the following sequence of events transpired: • • • • • • On November 5, three days after the election, the ballot boxes were reopened to allow for an audit of the tallies and a count of the write-in votes. All of the ballots were counted together, and Mr. Zupsic won a 36-vote victory over Ms. Laughlin. On December 1, Ms. Laughlin asked for a recount of 14 of the 22 ballot boxes in the judicial district. On December 8 and 9, a hand recount of those boxes gave Ms. Laughlin 46 more votes, while Mr. Zupsic lost 36 votes. Mr. Zupsic then asked for a recount of the remaining boxes. On December 20, a recount of those boxes gave each candidate one additional ballot. (Both candidates challenged a number of ballots during these recounts.) On January 5, the election board held a second machine count, which tabulated all the contests on the ballot. The re-tabulated totals in the race for district judge matched the hand recounts: Ms. Laughlin won by 42 votes, with 3,792 votes to Mr. Zupsic’s 3,750. On January 10, 1994, five days after the machine re-tabulation but more than two months In the United States, federal judges are appointed and remain in office for life. But each state has its own arrangement for putting state judges in office; they do not have life-time terms, and in many instances, they are elected. In some states, judges are appointed, and then run for election after their first term and for each subsequent term. In other states, judges are appointed and then subject to a yes-or-no vote after each term. Still other states have judges run for election from the start. (In these states, it is not unusual for a judge to resign before her or his term is over, so the next judge can be appointed to fill the vacancy until the term is over and then run as the incumbent when he or she faces first election.) 10 10