This seminar explores litigation that may occur shortly before, during, and in the aftermath of a state or federal election, with an emphasis on procedural issues. The course is divided into three main parts. First, it explores the conduct and structure of several major types of election-related cases, including disputes over absentee and early voting, false electoral speech, polling place litigation, ballot counting, provisional ballots, and Elections Clause challenges. Second, it examines how issues such as standing, jurisdiction, choice of forum, intervention, implied private rights of action, ability to state a claim, remedies, and consent decrees are resolved in these controversial and politically charged cases. Finally, the course offers case studies of major election-related litigation, looking at some of the key documents filed in the course of those challenges and the judicial opinions that ultimately resulted.
Election litigation often involves a mix of technical procedural considerations, administrative law, and substantive constitutional law. Procedural and jurisdictional rules dictate the parties that may be involved as litigants—including election officials, voters, candidates, political parties, or outside interest groups—as well as the proper forum in which they must pursue their claims, and the form the proceedings must take. In addition to traditional state and federal lawsuits (including cases before three-judge panels), it is possible to pursue administrative challenges, recounts, election challenges, and even proceedings before legislative bodies, depending on the election at issue and the nature of the claim. Each of these types of proceedings has different rules, requirements, limitations, and potential remedies, which this course will examine.
This class offers students an opportunity to appreciate the unique intricacies of election litigation; demonstrates the impact of procedure and remedies on substantive electoral rights, including the fundamental right to vote; and shows how choices made in the course of litigation can ultimately shape both the law and the outcomes of elections. Students will have the opportunity to assess the relationship between the judicial system and the electoral process, and determine whether courts play too much of a role in the regulation and conduct of elections. They also will learn to bring to bear a range of perspectives on these issues, including doctrinal, structural, institutional choice, historical, empirical, and normative. Many of the insights gained in the class will carry over to practical litigation in other fields, as well.