How Disputed Congressional Elections Are Decided

There is copious internet chatter about the possibility of a tight election night which produces no clear presidential winner. This chaos scenario is highly unlikely, but that doesn't mean there won't be Nov. 8 drama. In fact, several Senate and House races may be too close to call after the first round of ballot counting. So in disputed races, who decides the winner?

The answer depends on what state is involved. Like many aspects of Federalism, this is both charming and a bit annoying. For instance, some states do not have any recount mechanism at all; the losing candidate would have to go through the court system. But 43 states do offer some form of recount procedure, though protocols differ enormously from place to place.

To take one example, if a race in Alaska resulted in a genuine tie, then a recount would be permitted. Some ballots would be randomly counted by hand, while all others would be checked against electronic records. And then, if the election were somehow still a tie, the winner would be chosen "by lot." Which is an old-school way of saying that Alaska would pick its next senator or representative via coin toss.

Alaska having a tight Senate race seems unlikely, so what about the recount rules in a so-called "battleground" state, like Florida? Older readers may recall the disputed election results during the 2000 presidential race between Al Gore and George W. Bush, which came down to a Sunshine State recount. That tabulation of paper ballots introduced the term "hanging chad" into the national consciousness, where it has (sort of) remained.

So if Florida Sen. Marco Rubio and his Democratic opponent, Rep. Patrick Murphy, ended up with a margin of victory at or below 0.5 percent, that would trigger a recount. The first step is a simple recalculation of paper ballots. Then, if that margin of victory were at or under 0.25 percent, the ballots would be recounted by hand. It seems to be a pretty involved process, which perhaps explains why no one knew for sure who the 2000 presidential victor was until 36 days after that election ended.

Due to the possibility of Democrats retaking control of the Senate, the likelihood of contested election results is pretty high. So while Clinton may be called the early winner of the night, Americans might not know who is in charge of the upper chamber until whatever state those discrepancies occur in goes through its individualized recount processes.