MEDIATION AND POST-ELECTION LITIGATION Unlike outcome-determinative election disputes, process disputes are those encompassing mechanics and procedural rules for how, in the case of recounts, votes will be counted. 79 In the context of a recount, these kinds of process disputes can include the following kinds of issues:8° • When can a candidate challenge ballots? • When can a candidate examine election materials? • What is the definition of a valid ballot? • How will voter intent be determined? • What are the standards for determining whether a ballot has met technical or procedural requirements (such as initials by poll clerks)? Should ballots be counted if the technical defect is not caused by the voter? • Should absentee ballots be counted if postmarked prior to Election Day but received by the clerk after Election Day? In the vast majority of jurisdictions, when a recount is triggered, either automatically or because the losing candidate has petitioned for a recount, it is far from clear what procedural rules will govern the recount. State statutes and regulations often leave unresolved a wide range of procedural questions from matters as seemingly insignificant, such as where tables will be set up, to significant questions of standards for determining valid ballots. Even when state statutes and regulations include specific procedural rules, wide gaps must be filled before the recount can proceed. 81 Vagaries concerning the validity of absentee ballots illustrate the point. If absentee ballot envelopes must be signed by the voter, should a ballot count 79 Note that the line between outcome-determinative versus post-election process disputes is not always clear. Process decisions can turn out to be outcome-determinative. For example, in one of the closest elections in U.S. history, the 2004 Washington state governor's race, candidates asked a judge, inter alia, to pick a method by which to eliminate illegal votes. The judge could order a new election, require direct evidence (i.e., ask voters to testify), or use a "proportional deduction" method by which the judge would estimate whom each illegal voter voted for based on the precinct in which the voter lived. The choice between these various processes could be outcome-determinative. One can imagine that a mediated resolution of this process question would have been an effective means of resolving the dispute, but might have indeed determined the outcome. See Borders v. Kings County, No. 05-2-00027-3, Slip Op. at 4 (Wash. Super. Ct. June 24, 2005) discussed in Developments in the Law: Voting and Democracy, IV. Deducting Illegal Votes in Contested Elections, 119 HARV. L. REv. 1155, 1155-56 (2006). 80 These examples are drawn from TIMOTHY DOWNS, ET. AL., THE RECOUNT PRIMER 19-20 (1994). 81 Telephone interview with election law expert John Hardin Young, Partner, Sandler, Reiff, Young & Lamb (May 24, 2011). 343 HeinOnline -- 27 Ohio St. J. on Disp. Resol. 343 2012