In attempting to assess what states have the greatest risk of pre-election litigation going into November, our primary guide was pre-election litigation that had been filed in other states in the past. We looked at this litigation, categorized the most common types of suits, and then asked ourselves, for each state in our analysis, whether this type of suit might crop up again in another state (or in the same state again, in a slightly different form). The primary categories of suits we were looking for were: Suits over challenges to voter eligibility, suits over HAVA database matching or general database accuracy, suits over voter ID, suits over the accuracy and security of voting technology, suits over provisional ballots, suits over the regulations that apply to voter registration drives, suits over the availability of voter registration services at public assistance agencies, suits over absentee voter fraud and the rules meant to prevent it, and suits over intimidating or misleading behavior. After categorizing the types of suits, we then reviewed hundreds upon hundreds of news articles to determine whether each type of suit might appear in each state. We also looked at the relevant laws of each state to see whether a sound legal basis existed for suit. Finally, we placed phone calls to various election administrators and voter rights groups to try to obtain further information.
During our analysis, we tried to avoid speculative causes of action. We also eschewed discussion of several potential causes of action that we think might be sound, but that do not seem to have captured the attention of voter rights groups, political campaigns, and other groups that file pre-election lawsuits. This is because the goal of our project was to predict what lawsuits will be brought, not to opine on what lawsuits should be brought.
Web Editor, Election Law @ Moritz
September 2, 2008