Rebecca Green has posted this draft on SSRN (forthcoming, Ohio State Law Journal). Here is the abstract:

After the 2020 election, the United States has witnessed a crisis in confidence in election outcomes. The crisis has fueled massive public pressure on election offices to release election records via state “freedom of information act” (FOIA) requests. This deluge of records requests places enormous strain on already overburdened and underfunded state and local election offices. Operating under strict FOIA response deadlines, election officials spend hundreds of hours responding to records requests to the detriment of election preparedness—potentially further exacerbating criticism of their offices. Making matters worse, election officials often lack guidance on which records may and may not be released; state records access laws often feature vague wording and spotty coverage. These shortcomings compound distrust and breed litigation. The mandate that elections be transparent is sacrosanct. But so too is protecting a functioning democratic process. The justice system has processes in place to curb vexatious litigation and abusive discovery practices to ensure courts are not overrun. Should states adopt similar measures to protect elections? How can states effectively protect the election process from FOIA floods without sacrificing the public’s right to transparent elections? FOIA-Flooded Elections takes up these questions, offering concrete suggestions to protect both efficient election administration and public confidence in election outcomes.