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electionlineWeekly — April 20, 2017

Table of Contents

I. In Focus This Week

Helping judges deal with election cases
Five ways elections officials can be resources for judges

By David Levine
Special to electionlineWeekly

As noted by the Election Law Program, a joint project of William & Mary Law School and the National Center for State Courts, the United States has witnessed a dramatic increase in election-related litigation over the past ten years.

Legal challenges to election laws and procedures are now commonplace, and a source of considerable uncertainty and confusion.

Election administrators can be an important resource for judges deciding election disputes -- they understand the laws covering voter registration and elections in their jurisdiction(s) and the practicalities of administering and implementing those laws.

Election administrators are often automatically drawn into election disputes. They may, for example, be the named defendant in a lawsuit, in which case they will be the client of (and likely principal witness/resource for) the lawyer handling the case for the jurisdiction. In other cases, the court (or a party to the case) will contact or subpoena an election official to testify as the “local expert” on the subject matter of the case.

But even if an election official is not pulled into a case, there may be ways for him/her to help a judge.

For example, even if not a party, an independently elected official with authority to act on his/her own initiative can reach out and offer to serve as a “friend of the court” when a political dispute becomes a court matter, testifying as an impartial observer and providing facts/insight concerning the relevant law and how it is administered. [An election administrator that is not independent – i.e., one who heads a department that reports to a mayor or county executive – can also do this, but only after securing the approval of his/her superiors.]

Alternatively (and with approval if required), the administrator can reach out to the party he/she believes is correct on the merits, and work with that party to secure its success. For example, if a local or state law enforcement agency files a lawsuit against a candidate for failing to file campaign finance expense reports in a manner that complies with state laws, the election administrator can work with local law enforcement to ensure they understand how reports should be filed.

Here are five ways election administrators can be a resource for judges:

1. Offer your subject matter expertise on election administration-related matters. In any election-related dispute, a judge must first have a set of facts to work with. For example, where a ballot-related statute has not kept pace with changes in voting technology, a court may be asked to interpret statutory ballot requirements in light of existing capabilities. Election administrators are as well-positioned as anyone to explain changes in voting technology – and their implications for the voting process -- to judges. Without such knowledge, a judge will be hard pressed to interpret statutory requirements in an informed manner.

2. Tell the judge what it will take to implement a requested remedy. When a plaintiff files a lawsuit alleging that the election official did not follow statutory or administrative requirements when creating the ballot, the plaintiff will often ask the court to correct the ballot mistakes prior to the election. But the court may decline to order corrective action unless it is satisfied that acceptable changes can be made on time and at a reasonable cost. Since election officials are often the ones designing the ballot, and placing candidates and ballot measures on it, they are uniquely well informed about the time and money it will take to fix a mistake, as well as the practical consequences of leaving it unresolved.

3. Inform the judge of election deadlines that could be impacted by his/her decision. For example, the time required to send and receive absentee ballots may play a role in a pre-election legal challenge, even if absentee ballots themselves are not at issue. The deadline to send absentee ballots can operate as a de facto deadline on court decisions that directly affect the ballot, but judges need to be told about this, and particularly about the actual and/or practical deadline(s) for absentee voters to have their ballots counted.

4. Be honest with the judge, even when that’s not easy. Election officials must comply with all relevant local, state, and federal laws, but when a lawsuit is brought and there is no way to fully comply, the election administrator should inform the judge immediately. For example, if an emergency fire or flood occurs short before election day and a precinct no longer has an accessible polling place, the election administrator should inform the judge of this immediately, so that efforts to resolve the legal dispute are directed towards a practical, albeit imperfect solution, as oppose to one that cannot be implemented.

5. If you can, offer the court options for how to resolve a thorny issue. For example, if there is a natural disaster shortly before election day, the course of the election outcome will be altered no matter what action is taken. Some individuals may want the election to proceed because of all the preparation that has already taken place; others might want to reschedule the election if some/many polling places are unusable and/or election workers are unavailable. There may be no single best remedy, particularly in the absence of controlling statutes or case law. In such circumstances, election officials can call upon their experience to give input to judges on the pros and cons of their available options.

Judges are, by and large, very good at adjudicating legal disputes, but surprisingly few are knowledgeable about how elections are administered.

With no indication that the surge in election litigation will subside anytime soon, it is imperative that judges be become familiar with the how elections are actually conducted, a goal election administrators can and should help them reach.

The Election Law Program has launched a pilot project aiming to help judges understand state election laws. In addition to linking code sections with case law, regulations, advisory opinions, and useful links, the site features annotations by state election experts—including state election administrators--to provide context for judges. See ebenchbook.wm.edu. You can email This email address is being protected from spambots. You need JavaScript enabled to view it. if you’re interested in creating an election law “eBenchbook” in your state.