“Discouraging Election Contests”

Josh Douglas has posted this draft on SSRN (University of Richmond Law Review).  Here is the abstract:

This brief article offers a few proposals for discouraging losing candidates from contesting the certified result of an election. Our system encourages – or at least does not dissuade – the filing of post-election contests in close races. But election contests are often bad for our democracy, as they can harm the ideals of finality, certainty, and legitimacy of the election process – with little tangible benefit given that most election contests fail, at least at the federal and statewide level. The article suggests three possible disincentives to initiating post-election litigation: we could eliminate any possibility for a candidate to challenge the certified result, require a large monetary filing fee or the posting of a high bond, or impose a public stigma on candidates who contest an election and lose. In the end, the goal of this article is to promote a broader discussion of the propriety of post-election litigation and what we can do to curtail it.

 

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