Election by Litigation: The Electoral Process Post-Bush V. Gore

Article excerpt

How government has addressed election disputes since the 2000 presidential election.

In 2000 the world watched as then-Governor George W. Bush and Vice President Al Gore challenged the results of the presidential election all the way to the Supreme Court. The High Court issued two opinions on the election and courts at the state and federal levels all weighed in with numerous rulings.

The second Supreme Court decision in Bush v. Gore brought the 2000 election to an end. But it did little to quell concern that this type of litigation might become the norm. Legal experts began asking whether Bush v. Gore was a sign of what was to come. Would electoral challenges become standard practice in the United States? Would elections be decided in the courts rather than at the ballot box?

These concerns prompted Wall Street Journal reporter John Fund to ask whether there would be a "Floridification" of the voting process-i.e., the creation of an environment in which elections are increasingly resolved in the courts.

As the 2008 presidential election looms in front of us, it seems an appropriate time to consider the validity of these concerns and their consequences, if any.

"Floridification": What the Numbers Show

Almost seven years after the 2000 election, the statistics suggest that Mr. Fund's concern about the prospect of future election litigation is a valid one.

In July 2005 Professor Richard Hasen of Loyola Law School examined the election cases filed in state and federal courts. As Table 1 shows, from 1996 to 2004, case filings more than tripled, going from 108 to 361. Excluding cases that dealt with redistricting, the average number of election case filings from 2001-2004 rose to 240 (from an average of 96 cases per year during 1996-1999).

While one cannot prove that the 2000 election was directly responsible for the increase in election litigation, one could say that it seems to have created an environment in which litigation is more acceptable and therefore more likely.

This perception is widely shared by political party operatives and candidates. Over the last several election cycles, they have been preparing for post-election challenges. Doug Chapin, director of the Election Reform Information Project, refers to this as "lawyering up" and argues that it has become much more common since 2000.

For example, during the 2004 presidential election, both major parties enlisted and dispatched thousands of lawyers nationwide who were ready to challenge voting procedures and systems. By one count, the Democrats retained as many as 10,000 lawyers on standby across the nation, one thousand in Florida alone. During the 2006 midterm election, more than 7,000 lawyers worked for the Democratic National Committee and hundreds of them were dispersed to Florida, Maryland, Missouri, Ohio, and 13 other key states. Not to be outdone, the Republicans sent hundreds of lawyers to Florida, Michigan, Missouri, Tennessee, and a handful of other contested areas.

It is not only political parties and candidates who have lawyered up. The current administration was very busy investigating and challenging election results in 2006. The U.S. Department of Justice (DOJ) investigated numerous cities and counties for failing to provide multi-lingual ballots. The same year, it sued the city of Boston, alleging that poll workers improperly influenced voters with limited or no English skills.

Nonpartisan organizations have also kept thousands of lawyers happily employed with election-oriented concerns. In 2001, several groups, including People for the American Way Foundation, the National Association for the Advancement of Colored People and the Lawyers' Committee For Civil Rights Under Law, formed the Election Protection Coalition to provide voter assistance and protect voter rights. In 2006, this coalition launched the only national voter assistance hotline staffed by live call center operators. …