Election Subversion and the Writ of Mandamus

47 Pages Posted: 14 Mar 2023 Last revised: 25 May 2023

Date Written: March 5, 2023


Election subversion threatens democratic self-governance. Recently, we have seen election officials try to manipulate the rules after an election, defy accepted legal procedures for dispute resolution, and try to delay results or hand an election to a losing candidate. Such actions, if successful, would render the right to vote illusory. These threats call for a response. But rather than recommend the development of novel tools to address the problem, this Article argues that a readily available mechanism is at hand for courts to address election subversion: the writ of mandamus. This Article is the first comprehensive piece to situate the writ of mandamus within contemporary election law disputes.

This Article traces the history and application of the writ of mandamus in election disputes and posits that it is uniquely situated to help courts prevent election subversion. Federal and state laws delineate clear and mandatory responsibilities for election officials after votes have been cast in an election. Congress’s recently-enacted Electoral Count Reform Act strengthens the legal obligations placed upon election officials in presidential elections in particular. Courts can order state election officials to certify election results and to transmit those results to victorious candidates or the appropriate branch of government. If election officials refuse, courts can proceed to alternative mechanisms of enforcing their judgment, including expeditiously directing another actor to perform the appropriate election administration tasks. Mandamus is particularly valuable — more valuable than ordinary injunctive relief — because of the original jurisdiction in many state supreme courts to handle these disputes, which avoids the delay of a layered appellate process. This Article demonstrates the value of the existing remedy of mandamus to avoid election subversion. It then suggests ways that states strengthen the law around mandamus to ensure that election administration occurs in a timely and effective manner.

Keywords: election law, election subversion, writ of mandamus, election remedies, election litigation, right to vote, voting rights, canvassing, election officials, election administration, Electoral Count Reform Act, state courts, certifying elections, ministerial obligations

JEL Classification: K00, K1, K10, K19, K3, K30, K39, K4, K40, K41, K49

Suggested Citation

Muller, Derek T., Election Subversion and the Writ of Mandamus (March 5, 2023). William & Mary Law Review, Vol. 65, 2023/2024, U Iowa Legal Studies Research Paper No. 2023-18, Available at SSRN: https://ssrn.com/abstract=4380829 or http://dx.doi.org/10.2139/ssrn.4380829

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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