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.