What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012

Abstract

In this brief Article, forthcoming in the Federal Bar Association's magazine, the Federal Lawyer, I aim to do three things. First I canvass the nature of election law disputes which are likely to come to federal courts in the 2012 election season, focusing on constitutional questions arising from the interaction of state and federal courts in this area. Second, I discuss timing strategies which federal courts can and should use to avoid conflicts with state courts and to avoid becoming further enmeshed in the political thicket. Third, and most controversially, I suggest that federal courts be aware in evaluating election law disputes of the potential for subconscious bias on the part of election administrators, state courts, and federal judges themselves. I use examples from two important election law cases: Roe v. Alabama and Ohio Republican Party v. Brunner. I conclude with steps federal courts can take to minimize the potential for subconscious judicial bias and threats to the legitimacy of both the judiciary and the electoral process.

Keywords: election law, Bush v. Gore, Roe v. Alabama, Ohio Republican Party v. Brunner, election litigation