FOIA-Flooded Elections

53 Pages Posted: 4 Oct 2023 Last revised: 5 Jun 2024

Date Written: October 3, 2023

Abstract

After the 2020 election, the United States has witnessed a crisis in confidence in election outcomes. The crisis has fueled massive public pressure on election offices to release election records via state “freedom of information act” (FOIA) requests. This deluge of records requests places enormous strain on already overburdened and underfunded state and local election offices. Operating under strict FOIA response deadlines, election officials spend hundreds of hours responding to records requests to the detriment of election preparedness—potentially further exacerbating criticism of their offices. Making matters worse, election officials often lack guidance on which records may and may not be released; state records access laws often feature vague wording and spotty coverage. These shortcomings compound distrust and breed litigation. The mandate that elections be transparent is sacrosanct. But so too is protecting a functioning democratic process. The justice system has processes in place to curb vexatious litigation and abusive discovery practices to ensure courts are not overrun. Should states adopt similar measures to protect elections? How can states effectively protect the election process from FOIA floods without sacrificing the public’s right to transparent elections? FOIA-Flooded Elections takes up these questions, offering concrete suggestions to protect both efficient election administration and public confidence in election outcomes.

Keywords: election, transparency, public access, open records, vote, ballot, FOIA, freedom of information, threat, harassment, election official, democracy, election administration, public faith, public confidence, public trust

Suggested Citation

Green, Rebecca, FOIA-Flooded Elections (October 3, 2023). 85 Ohio State Law Journal 255 (2024), William & Mary Law School Research Paper No. 09-478, Available at SSRN: https://ssrn.com/abstract=4591453 or http://dx.doi.org/10.2139/ssrn.4591453

Rebecca Green (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
(757) 221-3851 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
176
Abstract Views
855
Rank
316,885
PlumX Metrics