The amount of election law litigation has more than doubled nationwide since the hotly contested 2000 presidential election, and more of that litigation is being fought in federal courts, according to a new study.
Election law scholar Richard L. Hasen of Loyola Law School, Los Angeles, in a draft article entitled "The Democracy Canon," reports that in the 2007-2008 election season, the amount of election law litigation remained at more than double the rate before the controversial Bush v. Gore contest.
"In 2008, we did not exceed the all-time high of 361 cases reached during the 2004 election," said Hasen. "But with 297 cases in 2008, following 216 cases in 2007, the country's rate of election litigation still averages more than double what it did before 2000."
In the pre-2000 period, the country averaged 94 election law cases per year; the post-2000 average is 237.
Hasen said the litigation explosion is likely to continue in 2012 and beyond.
"Unless we take steps to improve the electoral process during the 'off-season,' we always face the danger of another Bush v. Gore," he said.
Hasen, who also writes the Election Law Blog, also found that more cases are being filed in federal rather than in state court than in previous years.
Immediately after the 2000 controversy, more than 80 percent of cases were filed in state court. But since 2004, the state court numbers have declined. In 2008, only 54 percent of election law cases were filed in state court, the lowest level since 1997. The vast majority of those cases involved statutory interpretation questions.
"The shift to federal courts is a surprise," Hasen said. "Litigants might be shifting to federal courts because there are more federal constitutional and statutory questions raised now in light of partial reforms since 2000, or some litigants may expect to get better results in federal court rather than state court."
Surprisingly, election law problems that existed in 1885 continue to exist today, his study found, including clerk errors in producing the format of the ballot; voters making mistakes in how ballots are cast; and legislatures continuing to write election laws leaving holes and ambiguities that raise questions in litigation over whose votes should count, who is entitled to vote and which candidates may be on the ballot.
"The difference between the past and now is that the stakes are much bigger, as election law has become more of a political strategy for candidates and parties seeking political advantage, and as the rise of the Internet and especially the blogosphere has put every controversial judicial decision under a public microscope," the article states.