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Election Law @ Moritz

Election Law @ Moritz

Free & Fair

Election Law @ Moritz is 10 Years Old!

Back in 2004, those of us who worked on election law here at Ohio State realized that Ohio might play a pivotal role in the upcoming presidential election. (It did, but for the sake of the nation not as pivotally as it might have.) We also knew that 2004 would be the first presidential election after passage of the Help America Vote Act, with all its new rules on voter registration databases, voter identification, and provisional ballots. We thought it might be useful if, as a team, we tried to get up to speed on the new terrain of “election administration law,” which had been a sleepy field in terms of scholarship before 2000. We had a sense that teamwork would enable us to produce various forms of useful scholarship that we could not accomplish working separately.

We are proud of what we have accomplished in the past decade and gratified by the recognition it has received. From Registration to Recounts proved to be valuable in its “ecosystem” approach to studying election administration. Our McCain v. Obama simulation has inspired similar “election law war gaming” at William & Mary, and we remain delighted to continue partnering with others in our field where combining resources serves the greater good—just an extension of the teamwork idea on a wider scale! Most recently, we tackled the topic of campaign finance in The New Soft Money, thanks to the innovative sleuthing of Renata Strause, our superb Fellow for 2013-2014.

Throughout the decade, we have been particularly pleased to provide our Major Pending Cases database, which focuses on litigation concerning election administration. Our team members from the Moritz Law Library built and have maintained this resource, which is a generous commitment of great time and effort in the spirit of public service. From all the feedback we have received over the years on how valuable the database is, we are delighted that our initial instinct has been confirmed: the public deserves access to an organized compendium of documents filed in litigation over the voting process—access that is not behind any paywall.

Electoral democracy is a quintessentially public process, and if there is to be litigation over the procedures of electoral democracy, as it seems now that there inevitably must be, then the electorate itself must be able to monitor that litigation. This monitoring enables voters, and coalitions of voters, of all political stripes and persuasions to form judgments about the various efforts to affect the voting process through lawsuits. It also enables journalists and researchers, whether university-based or otherwise, to contribute to public analysis of the electoral system, based on the information generated in the crucible of adversary litigation. It is with these objectives in mind that we look forward to continuing to provide, and indeed improving upon, this public service over the next decade and indefinitely into the foreseeable future.

What we did not anticipate ten years ago was the degree to which litigation over election administration has intensified from cycle to cycle, rather than subsiding. With lawsuits over voter ID raging in Texas, Wisconsin, and North Carolina, and lawsuits over early voting in Ohio and (again) North Carolina, and indeed seemingly the entire voting process in North Carolina on trial, it sometimes is hard for even pros to follow all that is going on. Members of the public need all the assistance we, and others, can offer in an effort to understand what’s going on and its significance.

North Carolina is a particularly interesting example when thinking about the last decade. Ten years ago, when all eyes were focused on Ohio and its election administration problems, many folks may have missed that North Carolina had a statewide election for the state’s superintendent for public instruction that got caught up in litigation over provisional ballots and was not finally resolved until the state’s legislature repudiated the state supreme court’s ruling on August 25, 2005. Although no federal lawsuit was pursued challenging this legislative nullification of a judicial decree, it is easy to imagine that there might have been one, based on the principle that it violates Due Process to change the rules for counting ballots after they have been cast. (See Roe v. Alabama, the Eleventh Circuit decision concerning Alabama’s 1994 Chief Justice election.)

With all the current election administration litigation pending in North Carolina, one must consider the possibility that this year’s U.S. Senate election could end up like the 2004 superintendent of public instruction’s race. Leading forecasters have it in the tossup category, and one of the key races for potentially determining which party controls the Senate. The current condition of the “voting wars” in the state, combined with the 2004 track record, suggests that litigation over the outcome of the Senate race might be much more ferocious than the fight over Minnesota’s 2008 Senate seat (in which Al Franken ultimately defeated Norm Coleman). Although the Minnesota dispute took eight months to resolve, the dispute ultimately stayed within the state, and never made it all the way to the U.S. Senate. Given that the 2004 superintendent of public instruction dispute was incapable of being settled in state court, and went to the state’s legislature for further proceedings, it would seem that a North Carolina fight over a U.S. Senate seat would likewise not be confined to the judiciary. In this respect, it would more likely resemble the fight over New Hampshire’s 1974 election, which ended in a senatorial stalemate requiring a revote, or perhaps some of the Senate’s other contested elections in yesteryears.

Given the public interest and public importance of the U.S. Senate elections this year, Election Law @ Moritz will be focusing on the election administration rules in the states most likely to tip the balance of power in the Senate one way or the other. We will particularly track any litigation developments concerning election administration in these potentially pivotal states. Indeed, the hope about litigation about the voting process that occurs before the ballots are cast is that it will reduce the likelihood of litigating over the counting of those ballots afterwards, even in the event that the race is an extremely close one. From this perspective, maybe North Carolina is actually in the best shape, because there are so many election administration issues in that state subject to pending litigation. This thought seems counterintuitive, and we will just have to wait and see how it all plays out.

2014, our tenth anniversary, promises to be an interesting election year. We will continue endeavoring to do our part to aid public understanding of the process. We hope you will find our efforts useful.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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