For years I have been tracking the amount of election litigation, finding that the amount of litigation has more than doubled since the pre-2000 period. Now, with excellent help of my research assistant James Buatti, I have posted data on the 2011-12 election season, finding continued high rates of election litigation.
Here is a discussion of the relevant data from my forthcoming George Washington Law Review symposium piece, The 2012 Voting Wars, Judicial Backlash and the Resurrection of Bush v. Gore:
In some ways, the 2012 voting wars look much like the voting wars of the decade:23 Republicans alleged voter fraud was a major problem, Democrats alleged voter suppression was a major problem, turf wars broke out between state and local election administrators, parties fought over newly drafted election laws and new voting technology, the public’s confidence in the fairness of the election process was low, and there was election law litigation. Lots of it.
I have been tracking the rise of litigation since 2000, and the 2011-12 fits comfortably in into the general rise of litigation since 2000.24 The country saw an average of 94 cases per year in the 1996-1999 period. As Figure 1 illustrates I count 222 election-related cases in 2011 and 298 cases in 2012.25 Before the 2011-12 season, the average post-2000 figure was 239 cases per year.Including the 2011-12 season, the average rises modestly to 242.5 average cases per year. High litigation rates surely have become the new normal.
23 For a description of the fights during the last decade, see id.
24 For the data through 2010, and the methodology used to compute these figures, see Richard L. Hasen, The Supreme Court’s Shrinking Election Law Docket, 2001-2010: A Legacy of Bush v. Gore or Fear of the Roberts Court?, 10 ELECTION L.J. 325, 327, & n.9 & Fig. 3 (2011).
25 The 2011-12 cases are listed in a file posted at: http://electionlawblog.org/wp-content/