OHIO STATE JOURNAL ON DISPUTE RESOLUTION
(Vol. 27:2 2012)
would give up the ability to alert the press as it saw strategically fit in a
recount process. Filing suit plays an important signaling function that
campaigns well recognize. 122 But it could well be that a mediated agreement
might have included language limiting efforts to manipulate the press had
each side seen enough benefit in stemming the damage the other side might
unleash in doing so.m
And finally, rather than rushing to judges strategically in jurisdictions
throughout the state (as many state election statutes require), one skilled
mediator in charge of helping to resolve all process disputes could provide
consistency and moral authority to push the parties towards swift resolution
of their differences. The scattered nature of resolving post-election disputes
was problem enough for the relatively centralized election administration in
Minnesota. But the problem is exacerbated in states that lack a centralized
process for resolving recount process disputes. A recent example of this
decentralization is the 2011 Wisconsin State Supreme Court recount. The
Wisconsin Government Accountability Board oversees recounts generally, 124
but unlike Minnesota, where the Recount Plan 125 delineated how the process
would unfold in the counties, process decisions not settled by statute in
Wisconsin are made in each individual county. 12 6 Mediated process disputes
could assist in states where election administration is decentralized.
Mediators could function as statewide process experts to help counties
manage process disputes efficiently and uniformly. 127
122 As Secretary Mark Ritchie describes, "You always get in the newspaper when
you go to court. Sometimes candidates in a recount file suit with no intention of finding a
solution. It's a means of signaling." Interview with Secretary Mark Ritchie, Secretary of
State, Minn. Office of the Sec. of State (May 25, 2011).
123 For an interesting discussion of the role of the media in public disputes, see
Linda L. Putnam, The Media as a Stakeholder in Framing Public Conflicts, 13 No. 4
Disp. Resol. Mag. 12, 12 (2007).
124 /d.
125
See infra Part VI.B.
See supra note 86 (the Wisconsin Government Accountability Board website
confirms this characterization by noting that "Wisconsin has the most decentralized
election administration in the United States."). The site goes on to note that Wisconsin
state law gives each county's Board of Canvassers the primary authority to conduct
recounts, and to decide which ballots should and should not be counted. See Statewide
Supreme Court Recount Update, Gov. Accountability Board, May 6, 2011, 531 U.S. 98
(2000), http://gab.wi.gov/node/1849.
127 The problem of decentralized state election administration was driven home, of
course, in Bush v. Gore. Since Bush v. Gore, many have argued for centralized state
election administration to remedy this problem. See, e.g., Note, Toward a Greater State
Role in Election Administration, 118 HARv. L. REv. 2314 (2005) (includes a
126
356
HeinOnline -- 27 Ohio St. J. on Disp. Resol. 356 2012
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