I’m pleased to share this draft now up on SSRN. Comments welcome! The piece is called “Election Subversion and the Writ of Mandamus.” Here’s the abstract:
Election subversion threatens democratic self-governance. Recently, we have seen election officials try to manipulate the rules after an election, defy accepted legal procedures for dispute resolution, and try to delay results or hand an election to a losing candidate. Such actions, if successful, would render the right to vote illusory. These threats call for a response. But rather than recommend the development of novel tools to address the problem, this Article argues that a readily available mechanism is at hand for courts to address election subversion: the writ of mandamus. This Article is the first comprehensive piece to situate the writ of mandamus within contemporary election law disputes.
This Article traces the history and application of the writ of mandamus in election disputes and posits that it is uniquely situated to help courts prevent election subversion. Federal and state laws delineate clear and mandatory responsibilities for election officials after votes have been cast in an election. Congress’s recently-enacted Electoral Count Reform Act strengthens the legal obligations placed upon election officials in presidential elections in particular. Courts can order state election officials to certify election results and to transmit those results to victorious candidates or the appropriate branch of government. If election officials refuse, courts can proceed to alternative mechanisms of enforcing their judgment, including expeditiously directing another actor to perform the appropriate election administration tasks. Mandamus is particularly valuable—more valuable than ordinary injunctive relief—because of the original jurisdiction in many state supreme courts to handle these disputes, which avoids the delay of a layered appellate process. This Article demonstrates the value of the existing remedy of mandamus to avoid election subversion. It then suggests ways that states strengthen the law around mandamus to ensure that election administration occurs in a timely and effective manner.