Miriam Seifter and Adam  Sopko have posted this essay to SSRN, which will be published as part of a symposium held by the Illinois Law Review. As a participant in this symposium, I had the opportunity to see an earlier version of this important work. Here’s the abstract:

Election-related litigation is soaring. Litigants regularly challenge every aspect of an election cycle, from who can vote to how votes are cast and counted to the certification of results. Courts have thrown out many of these lawsuits on standing grounds. Given the requirements of traditional federal standing doctrine—including the requirement of individualized injury rather than generalized grievances—these dismissals are at least plausible in federal court.

But most election-related lawsuits today are filed in state court, where standing doctrine is and should be different. State courts are not bound by Article III of the U.S. Constitution, have constitutional commitments to democracy and open courts, and typically have more flexible justiciability doctrines. This Essay urges state courts to build on that foundation through a presumptively permissive approach to election standing. State courts fulfill their judicial role by redressing rather than avoiding threats to state-level democracy. And deciding election-related lawsuits on the merits serves important functions of stability, certainty, and finality, as well as confidence in election outcomes. 

To be sure, the surge in election-related litigation is suboptimal, and some share of the lawsuits are meritless or brought in bad faith. Our argument is simply that standing doctrine is not the best tool for rejecting these lawsuits. The Essay describes other techniques that courts can use to deal with abusive or burdensome litigation without undermining the openness that is foundational to state judicial systems. 

Milwaukee Journal-Sentinel:

“Souls to the Polls on Thursday called for the removal of the Republican Party of Wisconsin’s new executive director over Election Day 2020 text messages in which he asked about getting supporters of then-President Donald Trump to flood the Milwaukee voting rights group with requests to be taken to the polls.

“The group’s call came after the Journal Sentinel reported on the text messages from new GOP executive director Andrew Iverson when he was Wisconsin head of Trump Victory, a joint operation of the Trump campaign and the Republican National Committee in 2020. …

“In a statement, Iverson said this week that the text messages were jokes and weren’t supposed to be taken seriously.

“Huffman [who was the recipient of the texts], however, told the Journal Sentinel he did not take it as a joke and contended Iverson was clearly trying to overwhelm and discourage Souls to the Polls by forcing the group to spend valuable resources taking Trump supporters to various Milwaukee polling locations, where they may or may not have voted.”

Advocates of Australian-style mandatory voting would say that this kind of situation wouldn’t happen if the U.S. had an electoral system in which every adult citizen was obligated to vote and procedures were in place to facilitate the exercise of that obligation. The idea of trying to overwhelm a voter turnout operation so that it cannot function as intended seems rationally malicious (i.e., Machiavellian) only if there is no expectation that every citizen will vote and resources are limited to encourage citizens to do so.

Sam Levine in the Guardian on the latest development in the Crystal Mason case:

“A Texas prosecutor will appeal against a court ruling tossing out a five-year prison sentence for a woman who unintentionally tried to vote while ineligible in the 2016 election, an unexpected move that continues one of the most closely watched voting prosecutions in the US.

“Last month, the second court of appeals, which is based in Fort Worth, threw out the 2018 conviction of Crystal Mason, a Black woman who submitted a provisional ballot in 2016 that ultimately went uncounted. Mason was on supervised release for a federal felony at the time she voted and has said she had no idea she was ineligible. The panel said prosecutors had failed to prove Mason actually knew she was ineligible.”

Interesting Washington Post report on the front lines of the “voting wars”–in particular, the practice in Arizona of observers watching drop boxes and the role of local law enforcement in avoiding conflicts between the observers and voters.

The story contains links to body camera footage received through public records requests:

Watch: Body-camera footage shows law enforcement arrive at parking lot to question masked individuals on Oct. 21, 2022.

Watch: Body-camera footage shows additional law enforcement arrive to question masked individuals on Oct. 21, 2022.

Watch: Body-camera footage shows Arizona deputies discuss, enforce election law on Oct. 21, 2022.

Watch: Body-camera footage shows deputies de-escalate tension involving ballot drop box observers on Oct. 22, 2022.

I was very fortunate to be able to attend this symposium at Harvard Kennedy School’s Ash Center for Democratic Governance and Innovation, where I presented the idea of a “Top 3” presidential election system based on Common Ground Democracy principles. I also spoke more broadly about the need to assure that the winner of a presidential election receives a majority, not merely a plurality, of votes–and cited examples of where the failure to have a majority-winner requirement caused a candidate to win who clearly did not have the support of a majority of voters. Other speakers focused on ideas for proportional allocation of electoral votes, among other possible reforms of the Electoral College system.