Josh Douglas has posted this draft on SSRN (forthcoming George Washington Law Review).  Here is the abstract:

The Article provides the first comprehensive look at election law cases after the Supreme Court’s jurisprudential shift for pleading in Twombly and Iqbal. In these cases, the Supreme Court declared that plaintiffs must meet a “factual plausibility” test in their complaints, providing enough factual specificity to explain the basis for their suit. Courts in election cases have tried to follow this formulation. But applying Twombly and Iqbal to election law is incongruent with the main features of election litigation, leading to an awkward and sloppy analysis. There is usually little need to assess whether the plaintiff presented detailed factual allegations in a complaint when everyone usually agrees on how an election practice operates and the real question is whether the election regulation violates some law. Instead, a court deciding a motion to dismiss in an election case should focus on the other aspect of Rule 12(b)(6): legal sufficiency. To do so, this article proposes a pleading standard that would supplement factual plausibility, which I term “legal plausibility.” In addition to requiring sufficient factual allegations – which are often not the crux of an election dispute, at least at the complaint stage – pleading rules should force election law plaintiffs to make a plausible showing that the challenged practice is legally flawed. Legal plausibility entails three parts: plaintiffs should identify the precise election practice being challenged, explain with particularity how the law impacts that plaintiff, and apply the elements of the cause of action to the manner in which the election regulation operates. This standard will be particularly helpful for litigants and courts when the case at hand exhibits the dual features of timeliness concerns and a lack of viable post-election remedies – which encompasses a lot of election litigation. Although I focus on election cases, legal plausibility could apply to other areas that are similar to election law. Legal plausibility shifts the way in which courts analyze motions to dismiss. It helps courts streamline election litigation by weeding out those lawsuits that have no legal merit, allowing courts to spend more time and resources on the salient and difficult cases that require quick resolution before an election.

News from Ohio: “Josh O’Farrell, the Democratic challenger for the Ohio House of Representatives 98th District, filed a lawsuit to contest the election with the state Supreme Court on Monday. The complaint involves several provisional and absentee ballots that were rejected by the Tuscarawas County Board of Elections, and were not included when the board certified the election Dec. 14. O’Farrell lost to Republican incumbent Al Landis by eight votes, with Landis leading 23,393 votes to 23,385, in both Tuscarawas and Holmes counties.”

Moritz has a primer on how election contests work in Ohio.

You can read the contest filed in the Supreme Court of Ohio at this link.

The latest from Montana.

The Missoulian reports.

CNN: “- In the final race deemed too close to call, Republican David Rouzer conceded Wednesday after a recount in the race for North Carolina’s 7th Congressional District showed incumbent Rep. Mike McIntyre won by a razor-thin margin.:

The Hill: “The legal battle surrounding the results of Rep. Allen West’s (R-Fla.) reelection bid is likely not over yet, as both he and Democrat Patrick Murphy have indicated a willingness to move forward with litigation, regardless of the official results. A judge has dismissed West’s case calling for a full recount of ballots from all eight days of early voting in St. Lucie County, a major part of Florida’s 18th District, eliminating his final legal option before the county’s vote canvassing board meets this afternoon to decide whether to engage in a full recount.”

Politico reports.

Could be, though it is too early to tell.  What else may go into overtime?

As part of my work on the Voting Wars, I just had the pleasure of reading Jay Weiner’s book on the Coleman-Franken contest.  It reads like a turn-pager of a novel, and is full of inside information on the key players involved in the Minnesota recount.  It gives you a flavor of the lawyering behind the scenes, though Weiner’s account seems to rely more on the lawyers from the Democratic side than the Republican side for his account of what happened.

I also very strongly recommend Ned Foley’s ELJ pieces on Minnesota, the one Dan Tokaji just flagged, and Part II, which will be out in the next issue of the journal.  Ned’s work is a nice complement to Jay’s.  Ned gives the lawyers and scholars a legal history of the conflict, while Jay tells the human story behind the battle.

Read them all!