The laches issue is now before the 4th Circuit in the Perry VA ballot access case. [UPDATE: The Perry motion is here.] I have long advocated that courts be more willing to entertain early challenges to election rules but also aggressively use the equitable doctrine of laches to bar late challenges to election rules. Here’s my most extended discussion of the issue in the context of pre- versus post-election challenges to election rules (not exactly the Perry situation, but close enough to make the public policy point) (footnotes omitted):
The final reform this Article advocates relates to the timing of court challenges to election administration practices: Courts should be more willing to entertain pre-election challenges and less willing to entertain post-election challenges, at least for those issues that could reasonably have been foreseen and raised before the election. The argument for the timing change is two-fold, considering both the benefits of pre-election review and the costs of post-election review.
Turning first to the benefits, in some cases—particularly those involving presidential elections—pre-election adjudication remains the only way to give an effective remedy to an aggrieved plaintiff. Consider Palm Beach County’s 2000 “butterfly ballot.” There is strong evidence that its design cost Al Gore the election in Florida. After the election, a group of plaintiffs brought suit challenging the butterfly ballot and asking for a re-vote in Palm Beach County to correct the error. Unsurprisingly, the trial judge denied the request for a re-vote: “[B]ecause Presidential elections are the only national elections held in our country, our forefathers included clear and unambiguous language in the Constitution of the United States which require [sic] that Presidential ‘electors’ be elected on the same day throughout the United States.” “While a re-vote or new election may not give other States ‘undue advantage’ in the instant action, the danger of one candidate benefiting from an undue advantage in a re-vote or new election is always a strong possibility.”
Imagine if someone had gone to court before the election, making a claim that the design of the ballot would be confusing and could affect the outcome of the election. Had that kind of suit been heard on the merits, it is possible that the problem could have been avoided, and a redesign of the ballot would have greatly increased the chances for thousands more voters to cast votes matching their intent. Pre-election review thus presented the only possible opportunity to afford a remedy for potential disenfranchisement of Florida’s voters….
But consider the costs associated with post-election challenges, where a court is asked to overturn the result of an election or take a step that can affect the outcome of an election. Such litigation puts courts in a difficult position. A court asked to decide a question of statutory or constitutional law that affects the outcome of an already held election is injected in the worst way into the political thicket. Journalists immediately question the partisan background of the judges, and partisan motives are immediately questioned and dissected no matter what the judges do.
Putting judges in the position of deciding election law questions when the winner and loser of its decision will be obvious can undermine the legitimacy of the courts. Moreover, when judges second-guess decisions made by legislators and votes cast by the people, the legitimacy of the election process itself can suffer. The nation does not want it to become the norm that no close election results are considered final until the courts have had their say, but the nation is coming perilously close to that situation given the increased use of election law as political strategy.
Of course, there are situations where pre-election review is impossible because the election problem that materializes is not reasonably foreseen: Consider the Carteret County, North Carolina problem, where election administrators made a mistake about the capacity of their electronic voting machines to hold electronic votes. Nor does it make sense to require campaigns to take extraordinary and costly steps to ferret out all potential election administration problems, such as a problem with felon voters being left on the voting rolls who may later cast illegal votes. But putting asidethose cases that would require clairvoyance or an onerous undertaking, there are many reasons to favor pre-election review and disfavor post-election review.
Allowing post-election review when pre-election review would have been relatively easy to request essentially gives a campaign the “option” whether to sue: The campaign identifying a potential election problem can sit on its hands until it sees the election results, and if it does not like the election results it can use the problem as an excuse to get a more favorable outcome. It is far better to have a legal system that discourages such speculation and encourages preventing harm in elections that would prove difficult to undo after the fact….
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. Judge Posner saw it that way in a lawsuit brought by Ralph Nader to allow him to file petitions late getting him on the presidential ballot in Illinois in 2004:
[I]t would be inequitable to order preliminary relief in a suit filed so gratuitously late in the campaign season. It wasn’t filed until June 27, only a little more than four months before the election. If when he declared his candidacy back in February Nader had thought as he now does that the Illinois Election Code unconstitutionally impaired his chances of getting a place on the ballot, he could easily have filed suit at the same time that he declared his candidacy—especially as he had filed a similar suit the last time he ran for President, in 2000, when he obtained a preliminary injunction that got him on the Illinois ballot by allowing him to submit petitions collected after the deadline, though no final judgment was ever entered.
Judge Posner recognized that the public interest in fact militated in favor of a laches holding:
We are mindful that the right to stand for office is to some extent derivative from the right of the people to express their opinions by voting; it was doubtless to remind us of this that Nader’s lawyers added two prospective voters as plaintiffs. But nothing is more common than for the denial of an injunction to harm innocent nonparties, such as people who would like to vote for Nader but unlike the two voter plaintiffs are not complicit in his decision on the timing of the suit. But there are innocents on the other side as well—namely the people who will be harmed if a last-minute injunction disrupts the Presidential election in Illinois. And Nader’s supporters can of course cast write-in votes for him in November.