Reducing Election Litigation

23 Pages Posted: 3 Jun 2021 Last revised: 22 Nov 2021

Date Written: May 28, 2021

Abstract

Election litigation has exploded, and judges have increasingly been asked to evaluate ever-finer points of election administration. This Article posits some reasons that the judiciary has done so, and it offers potential ways to reduce election litigation.

Part I examines the increase in litigation and attributes at least some of that increase to several causes: increased campaign expenditures on litigation; increased partisanship in state legislatures yielded more contentious election laws; the decline of preclearance under the Voting Rights Act after Shelby County v. Holder; and Supreme Court extensions of the Anderson v. Celebrezze framework to broad areas of election law.

Undoubtedly, a part of the tale of litigation in 2020 arose from the arrival and spread of the novel coronavirus in the United States in 2020, which precipitated extensive actions (or attempted actions) to alter, postpone, or cancel previously-scheduled elections. But this Article sees a challenge—cash-laden litigants pressing judges to provide a preferred set of election practices, seizing on inconsistencies within the states or an absence of federal oversight to do so. Election law standards vary by federal circuit, and not as the result of state-driven legislative choices. States executives enter into consent decrees with plaintiffs to effectively rewrite election codes without legislative input. Or state executives fail to appeal adverse findings in short-fuse litigation.

Part II suggests that less litigation is desirable. While acknowledging that litigation can advance important interests, it can undermine confidence in elections or add needless complexity to election law close in time to the election. It then offers what might be substantively-neutral solutions. The objective is to improve uniformity in legislation by "leveling up" decisions, which reduces friction in decision-making, reduces incentives to litigate, and increases consistency, both in terms of voter treatment and in terms of judicial precedent, across jurisdictions. Eliminating federal incentives for campaigns to raise money for litigation would compel campaigns to allocate resources for litigation like all other competing resources within the political campaign. These imperfect solutions may help reduce election litigation going forward.

Keywords: election law, election litigation, elections, electoral college, federal elections, federalism, campaign finance, campaign expenditures, litigation

JEL Classification: K00, K1, K10, K19, K3, K30, K4, K40, K41

Suggested Citation

Muller, Derek T., Reducing Election Litigation (May 28, 2021). Fordham Law Review, Vol. 90:561, No. 2, 2021, U Iowa Legal Studies Research Paper No. 2021-49, Available at SSRN: https://ssrn.com/abstract=3855591

Derek T. Muller (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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