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Mayoral recount? Bring it on

We endorsed Catherine Pugh. We think she should be the next mayor, and based on everything we have seen so far from the preliminary counting of votes from last week's election, we expect she will be the Democratic nominee. That said, we have no quarrel with former mayor Sheila Dixon or anyone else scrutinizing the results and questioning the voting process. It's much better for all involved — including Ms. Pugh — to hash the issues out now rather than leave questions that could linger for years.

Let's get one thing out of the way first: Whether or not Ms. Dixon officially conceded on election night is completely irrelevant. State and local law and regulations set out procedures for counting ballots and certifying the results. Nowhere do they say the person with the most votes wins unless she conceded on election night. The city election board is in the midst of counting absentee and provisional ballots under the watch of the candidates, per normal procedure, and by Friday it expects to have completed the job — a perfectly ordinary timeline to do so. If the final tally shows Ms. Dixon with more votes than Ms. Pugh, she wins, and if it shows her with fewer votes, she retains the right to request a recount or judicial review no matter what she said in her concession/non-concession speech.

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At least so far, all indications suggest that Ms. Pugh's lead will hold up when the canvass is done. She led by 2,585 votes after early voting and election day voting. After 3,352 absentee ballots were counted, her lead grew by more than 400 votes. After the first day of provisional ballots, Ms. Pugh's margin stood at about 2,500 votes. It's possible that a few thousand more ballots will be counted — depending on how many absentees are returned and how many provisional ballots are valid — but they would need to break overwhelmingly for Ms. Dixon in order for her to prevail.

Ms. Dixon could request a recount, either across the entire city or just within select precincts. That could settle any questions about flash drives carrying results from eight precincts that temporarily went missing. There is no reason to suspect foul play with the encrypted, read-only devices — five of them had been locked up with the voting machines in the precincts, two were in an election office warehouse and one was never found, forcing a recount of the actual ballots.

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The same could be done for the other seven precincts. Activists asked the governor's office to get involved and have petitioned the state prosecutor to start an investigation, but the answer could be much simpler than that. Ms. Dixon has the authority to call for a recount of those precincts once the canvass is completed. She would have to post a bond to cover the costs, which she would be responsible for unless the recount significantly altered the results, but that's been done before. Former House speaker Casper R. Taylor Jr. put up a $10,000 bond when he requested a recount of his apparent narrow loss in 2002, and then-Del. Victoria Schade put up a $9,750 bond when she asked for a recount of her 18-vote loss in 1998. Neither challenge was successful. But if Ms. Dixon and her supporters truly believe those eight precincts' results could change the election, they should ask for a recount.

(Should they do so and succeed in changing the results, Ms. Pugh would then have the right to request a recount of the other precincts in the city.)

Perhaps a more likely route for Ms. Dixon to take is a judicial challenge of the election, but that's a high bar, too. Not everything went perfectly according to plan on election day. In addition to the missing flash drives, a few precincts opened late (and were kept open an extra hour after a judge intervened), and some complain that they were forced in error to vote using provisional ballots or were given ballots for the wrong district. None of that should happen, and the city board of elections should do what's necessary to prevent those problems from recurring, in as much as possible. Ms. Dixon has also questioned Ms. Pugh's practices during early voting when she recruited people for jobs as poll workers and then offered them food and bus rides to early voting sites.

Republican legislator Ellen Sauerbrey mounted a judicial challenge in her narrow 1994 loss to Parris N. Glendening in the governor's race. Like some Dixon supporters today, she alleged unprecedented levels of voting irregularities. But despite a massive effort, a judge ruled that the evidence she presented was insufficient to warrant throwing out the election. The law says that a challenger must persuade a judge by clear and convincing evidence that "an act or omission was committed that changed the outcome of an election." It's not enough to note that some polling places opened late or some people got the wrong ballot. Ms. Dixon would need to show that the irregularities caused a 3,000 vote swing in Ms. Pugh's favor. Anything short of that is just noise.

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