Public Rights and Private Rights of Action: The Enforcement of Federal Election Laws

48 Pages Posted: 26 Jul 2010 Last revised: 14 Dec 2010

Date Written: July 26, 2010


In what circumstances should there be a private right of action to sue for violations of federal election statutes. Lying at the intersection of federal courts and election law, this question has arisen in several recent cases, as private litigants have increasingly called upon federal courts to resolve election disputes. The question was before the U.S. Supreme Court in Brunner v. Ohio Republican Party (“Brunner”) which alleged that a state chief election official had failed to follow the requirements of the Help America Vote Act of 2002 (“HAVA”) pertaining to statewide voter registration lists. In a one-paragraph, unanimous per curiam opinion, the Court held that a political party could not sue, reversing the lower courts’ conclusion that there was a private right of action.

The brevity of the Brunner decision masks the significance and complexity of the larger question. To be sure, the issue in Brunner was a straightforward one under existing private-right-of-action doctrine, which requires an “unambiguously conferred” individual right. The problem is this doctrine fails to account for the vital role that federal courts play in overseeing elections in the United States, especially in pre-election litigation.

The availability of a private right of action is especially critical in election cases – and the existing doctrine especially ill-fitting – for both conceptual and practical reasons. On a conceptual level, election cases typically involve non-individuated or collective interests. It follows that the Court’s insistence on an unambiguously conferred individual right makes little sense in election cases. Existing doctrine is also problematic from a practical perspective, given the absence of any institution besides the federal courts with the ability to ensure consistency in the interpretation of federal law. The ultimate consequence is to leave the interpretation of federal election law in the hands of state and local officials, except in those rare instances when the U.S. Attorney General decides to sue. This is particularly troubling given the partisan affiliation of most state and many local election officials, which creates an inherent conflict of interest and makes federal judicial oversight especially important.

The Court’s stringent approach to private rights of action is therefore ill-suited to federal election law disputes, because they involve quintessentially public rights for which a federal judicial forum is essential. In Brunner, the Court failed to consider the distinctive character of election controverises. In fact, both the lower courts and the Supreme Court got it wrong in this case – even though they arrived at diametrically opposite conclusions. The lower courts incorrectly applied existing precedent, which foreclosed private enforcement of HAVA’s matching requirement. But the Supreme Court was also incorrect, in failing to reconsider this precedent to account for the especially important role the federal courts play in electoral disputes. Though faithfully applying existing doctrine, the Court missed an opportunity to correct – or at least limit – a line of precedent that has unfortunate consequences in the realm of election law. The Article concludes that, in the appropriate case, the Court should revisit Brunner and relax the standard for private enforcement of federal election statutes under Section 1983.

Keywords: election law, voting rights, Section 1983, right of action, private cause of action, election reform, election administration, Help America Vote Act, HAVA, Section 1971, UOCAVA, Brunner v. Ohio Republican Party

Suggested Citation

Tokaji, Daniel P., Public Rights and Private Rights of Action: The Enforcement of Federal Election Laws (July 26, 2010). Indiana Law Review, Vol. 44, p. 113, 2010, Available at SSRN:
No contact information is available for Daniel P. Tokaji

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