I have this draft on SSRN of a piece coming out in the Fordham Law Review as a part of its recent election law symposium. It’s a small effort to think about election litigation and how it might be reduced.
I track the recent explosion in election litigation and its potential causes–new funding opportunities, inter-branch friction in states, and elsewhere (apart from the pandemic, of course). I also try to offer some substantively-neutral policy proposals that will reduce election litigation, which I think is a desirable goal: “leveling up” election law rules to reduce the friction from disparities in election administration, and eliminating federal incentives to fund party-based litigation.
One of the components of the article that has received the most attention is on the descriptive side, a look into major party disbursement data on legal expenses: DCCC, DNC, DSCC, NRCC, NRSC, & RNC. The charts are what everyone seems to focus on, so I’ll include one here, based upon my culling of FEC data:
My proposed solutions have not been met with quite as much interest. Candidly, it’s also not clear that reducing the amount of money people can contribute to major parties for election litigation will improve matters. Indeed, it may well be that a related explosion in third-party funding will simply shift matters–and shift it out of party control. And many have opposed “leveling up,” as it takes away discretion from local, and sometimes state, officials. But I hope it’s a start to thinking about some of the cause and solutions.