William and Mary Law School

Election Law Program Seeks to Assist State Court Judges in Resolving Election-Related Disputes

Editor's note: this interview with Professor Douglas was conducted prior to November 7 elections.

As more and more American elections are being resolved within the court system, William & Mary Law School’s Election Law Program is making an effort to assist state court judges in dealing with election-related issues.

Davison M. Douglas, Arthur B. Hanson Professor and Director of the Election Law Program, said that there has been a particular increase in recent years in the number of election law cases being brought in state courts.

“When we have a close election, we’re much more likely to see election challenges,” said Douglas. “These are important cases; they are extremely high profile, and they must be decided under the intense glare of the media.”

In an effort to assist state court judges in their resolution of election disputes, the Election Law Program asked election law expert Richard Hasen to prepare a five-page memorandum that the National Center for State Courts then distributed to every state supreme court chief justice in the country during the summer of 2006. The chief justices were encouraged to distribute copies of the memorandum to judges in their states in preparation for legal conflicts that may arise during the November 2006 elections.

Douglas said the memorandum provides, “in a quick, concise manner, overarching principles for judges dealing with election law issues. It’s a place judges can go and get a quick overview of the legal issues that are at play with these types of challenges.” Thus far, the memorandum seems to be well-received by the state court judges. “The feedback we have gotten has been positive,” said Douglas.

Douglas said the memorandum is a response to the increase in election law cases over the last eight years. “Lots of experts are forecasting close races in a number of states this week,” said Douglas, who hopes the memorandum will assist judges who face litigation. “Effectively resolving these disputes is essential to our democratic process,” he said.

The greater number of election challenges is partially caused by closer elections, but part of this increase comes from legal changes, like the Help America Vote Act (HAVA), which provides for the use of provisional ballots.

Douglas said that the balance of power in both the House and the Senate could turn on a few closely contested elections in which the validity of “provisional ballots” cast by voters must be determined. Voters are permitted to cast provisional ballots when questions arise on Election Day concerning their eligibility to vote. The validity of these provisional ballots will have to be determined after Election Day and may involve litigation.

Douglas also notes that there has been a change in the way candidates and political parties deal with election disputes. “With each passing election cycle, there has been an increased willingness to go to court. Both parties are ‘lawyering up’… ahead of time and sending lawyers to critical states,” he said.

In addition to this memorandum, the Election Law Program is writing an Election Law Manual that will be made available to every state court judge in the United States. The Manual is expected to be complete by early 2007.

The Manual will follow the format of the Federal Judicial Center’s Manual for Complex Litigation and provide an overview of the approaches that judges should take when resolving election law issues. Eventually, this Manual, which will be several hundred pages long, will be available online.

Just as the judicial branch must be prepared to deal with post-election disputes, Douglas said the media’s understanding of these legal issues is “crucial.” “If the media does a really good job of explaining the legal issues behind these disputes, that will go a long way towards giving voters confidence in the post-election processes,” he said. “When these post-election disputes arise, they will be accompanied by lots of emotion. The media will help tremendously if they can give the public clear pictures of what’s going on.”