There’s been much talk about what kinds of claims might be brought post-election if the election is close that could allow Trump to try to stop or delay counting, or otherwise seek to mess with the election. In this post, I want to talk about a key issue about timing that could mean many such gambits come too late under the doctrine of “laches.” Laches is a remedial defense that says that when there is unreasonable delay and it prejudices the other party, then the claim comes too late. (Unlike the Purcell principle, which is aimed at when courts make election changes close to the election, laches is about when plaintiffs in court wait too long to sue.)
The bottom line is that if you think there is a problem with how an election is being run, you need to go to court at that point to sue about it; you can’t wait to see how the election turns out and then do it. Here’s how I explained the point in a 2005 law review article, Beyond the Margin of Litigation:
Allowing more pre-election review is not a recipe for more overall election
litigation. Courts should make clear that a willingness to reach issues before
the election will be accompanied by a strict application of laches after the
election. “[L]aches is unreasonable delay by the plaintiff in prosecuting a claim or protecting a right of which the plaintiff knew or should have known, and under circumstances causing prejudice to the defendant.” But it is subject to some exceptions, including an exception that prevents its application ‘to defeat the public interest. This exception threatens to swallow the rule in election law litigation, because the public has an interest that election law disputes get their day in court.
Courts should see it as in the public interest in election law cases to aggressively apply laches so as to prevent litigants from securing options over election administration problems. This rule will promote the public interest by insuring public confidence in the election process.
We saw this today in the Minnesota Supreme Court’s response to a late GOP attempt in Minnesota to try to get a reopening of a consent decree, potentially trying to take advantage of an independent state legislature argument should the election go into overtime:
To be clear, a laches argument would not help in Pennsylvania as to the late counted ballots; Republicans there tried early on to get a stay from the Supreme Court. And it does not and should not apply to problems that crop up at the last minute (such as seeking a court order for a problem that unexpectedly materializes on election day).
But an attempt to try to complain about ballot deadlines or other longstanding problems for the first time now or after the election should be seen as coming too late.