Foley and Huefner: The ALI Tackles Election Law Just in Time

The following is a guest post from Ned Foley and Steve Huefner. We all owe them a great deal of gratitude for the job they did. It is extremely hard to forge bipartisan consensus among a group of election lawyers and law professors, and they did their job with extreme thought, care, and balance:

Most lawyers know about the American Law Institute.  As first-year law students, they encounter the ALI’s Restatements of Contracts, Torts, Property, and other basic subjects—efforts by ALI to glean from existing judicial precedents the essence of those common-law subjects, a process of distillation that is understood to point those fields of law in the right direction (normatively speaking), even as the Restatements endeavor to be faithful descriptions of the law as it actually is.

First-years also know the ALI’s Model Penal Code, a monumental undertaking designed (as its title implies) to provide an idealized conception of what basic criminal law should be.  Judges and attorneys all around the country routinely use the Restatements, the Model Penal Code, the Uniform Commercial Code (produced jointly with the Uniform Law Commission) and the ALI’s other work product in an effort to better understand a field of law and to apply its articulated principles to whatever particular facts might be at hand and require some sort of resolution in our legal system.

In its 95 years of existence—the ALI was founded in 1923 by such luminaries as Chief Justices William Howard Taft and Charles Evans Hughes, Justice Benjamin Cardozo, and Judge Learned Hand—the ALI never pronounced its views on the topic of election law.  It covered such fields as employment law, and family law, and foreign relations law.  But not election law.

Until now.  The ALI just announced the publication of its new statement of principles, Election Administration: Non-Precinct Voting and Resolution of Ballot-Counting Disputes.

This publication had its genesis in the emergence of the “voting wars” that occurred in the aftermath of the 2000 election, as underscored in 2008 first by the voter ID litigation that culminated in Crawford v. Marion County and then the litigation over the outcome of the U.S. Senate election in Minnesota that year.  The goal was to employ ALI’s tested method of nonpartisan and rigorous analysis to election law topics especially fraught with contentiousness.  The leading attorneys on both sides of the Minnesota dispute, among many other election lawyers known for representing both political parties and their candidates, advised the ALI on both the contours and the content of this project.

Early on, based on this bipartisan advice, it was decided that the ALI’s first foray into the field of election law should be limited to two discrete topics: (1) the rapidly emerging domain of nontraditional methods of voting, specifically “no excuse” absentee voting and “early” voting in advance of the traditional election day; and (2) the domain of recounts and other post-voting procedures for resolving disputes over the outcome of elections.  The reason for tackling the first topic was that, being novel, it was particularly in need of attention—and one in which partisan positions had not yet become deeply entrenched.  This area of election law also was becoming an increasing source of disputation in contested elections.  The reason for tackling the second topic was that, in addition to being especially consequential (determining as it does who wins and who loses the closest and most contentious of contests), it ironically offers the best chance for bipartisan consensus.  How so? Because what candidates care most about in the context of post-voting disputes is whether they are ahead or behind in the count; they will make whatever argument is most advantageous depending upon this relative position, regardless of ideology or party affiliation.  As a result, if bipartisan rules can be agreed upon in advance of any particular election, before candidates know whether they will be ahead or behind once votes are preliminarily counted, those rules will be intrinsically fair to both sides.

The two of us have been honored to serve as “reporters” for this project. In this role, we have shepherded drafts through the ALI’s advisory committees, which included prominent scholars familiar to readers of this blog, federal and state judges, as well as the aforementioned bipartisan representation of leading election law practitioners. These drafts then went before the ALI’s governing council and ultimately its entire membership.  The now-released publication is the result of this extensive—and intensive—deliberative process.

The goal of the publication is to be useful to resolving the kind of controversies that could occur in this year’s elections.  Without considering the specific facts of any particular controversy, and without endeavoring to determine how the now-published ALI principles would line up with respect to those specific facts, there is no way of knowing in advance whether the ALI principles would favor one candidate or party in the context of that particular dispute.  But that’s the beauty of the ALI project.  Adopted far in advance of any particular election, behind the proverbial “veil of ignorance,” by a nonpartisan process committed to the ideal of fair and impartial rules for governing democratic competition between candidates, these ALI principles offer the most neutral way to resolve any controversy that might actually arise.  No one can reasonably accuse the ALI principles to have been drafted to favor any one candidate in any particular dispute that might occur this—or any other—year.

Thus, if any particular election this year turns out to be mired in litigation—as seems plausible in light of the significant pre-election skirmishing that already has developed—it is hoped that the adjudicators of those disputes (whether they be courts, or administrative bodies, or even legislative chambers charged with judging the elections of their members) will turn to these ALI principles for guidance concerning a fair and impartial method for resolving those disputes.

 

 

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