Just published in the UC Irvine Law Review: Lisa Marshall Manheim (Washington), Electoral Sandbagging.

An insidious tactic threatens elections across the United States. Some refer to it as a “bait and switch.” Others recognize a form of “election sabotage.” While the labels vary, the pattern is the same. First, an election official or other figure of authority consents to an error at an early stage of the election process. The actor then waits to see how the election unfolds. If the election results are favorable, the error slides into irrelevance. If not, that same actor refers back to the earlier error, now with indignity, and insists that it requires a late-stage disruption of the election process. The aim of this maneuver—a maneuver this Article terms “electoral sandbagging”—is to install a favored candidate into office. An effect is to imperil the election process from within.

This Article, the first to identify and examine this pattern, connects it to another phenomenon: sandbagging in the courtroom. There, Justice Scalia defined the practice as “suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later—if the outcome is unfavorable—claiming that the course followed was reversible error.” Unsurprisingly, judges have long recognized and denounced this tactic. Sandbagging in the election context warrants even stronger censure. Among other harms, electoral sandbagging fundamentally undermines the fairness of election proceedings and otherwise strikes at the heart of democratic governance. By exposing and contextualizing this growing phenomenon, this Article provides guidance for a path forward. In addition, by demonstrating how electoral sandbagging thrives in the shadows—its perpetuators dependent on dissembling and subterfuge—this Article helps to counteract its effects.