Federal Judicial Center 8/28/2012 1

National Center for State Courts 

Election Litigation Resources

Summary prepared by Margaret S. Williams

Federal Judicial Center

2012

The National Center for State Courts (NCSC) has several resources for judges 

facing election litigation. State judges are the NCSC’s primary audience. The 

NCSC has an online Resource Guide that includes articles and reports, information of general interest, and specific case information. As part of the Resource 

Guide, there is an Election Law Manual (2008), the first chapter of which deals 

with federal regulation of state election practices. A featured link of the Resource 

Guide is to a series of video lectures presented by the Election Law Program at 

William and Mary’s Law School.

Election Law Manual

Chapter 1 of the Election Law Manual discusses the relevant sections of the Constitution and the statutory provisions governing elections. The discussion includes 

the following:

• Help America Vote Act (HAVA)

• Voting Rights Act (VRA)

• National Voter Registration Act of 1993 (Motor Voter)

• Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)

• Americans with Disabilities Act (ADA)

• Voting Accessibility for Elderly and Handicapped Act (VAEHA)

The chapter also provides explanation as to which statutes have private causes 

of action and which do not. In addition to summarizing the relevant statutory provisions, the chapter includes a section on the provisions of the U.S. Constitution 

that are most litigated.

A final section of the chapter discusses considerations for federal judges when 

litigation is going on in both state and federal courts. Included in this section is a 

discussion of three key U.S. Supreme Court decisions:

• Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).

• District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

• Michigan v. Long, 463 U.S. 1032 (1983).

The remaining chapters of the manual are for state judges.

Election Law Program at William and Mary’s Law School

Included in the webpage for William and Mary’s Election Law Program are several videos discussing election litigation issues, generally divided into pre-election 

litigation, election-day litigation, and post-election litigation.
National Center for State Courts Election Litigation Resources

2 Federal Judicial Center 8/28/2012

Video Series 1: A View from the Trenches: Advice for Judges Handling 

Election Related Lawsuits from Experts Bob Bauer and Ben Ginsberg

Attorneys Ben Ginsberg and Bob Bauer discuss the issues that arise before, during, and after an election. Mr. Ginsberg and Mr. Bauer are both experts in campaign litigation. Mr. Bauer was White House Counsel for the Obama administration. Mr. Ginsberg worked on the Florida recount and the 2008 Minnesota Senate 

campaign.

Part I: Pre-Election Issues

What are the key issues for judges to keep in mind as they deal with pre-election 

litigation?

• Judges will want to avoid getting swallowed up in partisan issues.

• Because of the nature of elections, different jurisdictions will be 

interpreting the same laws.

• Many people, including volunteers, are involved in the process, and this 

creates a lot of opportunity for human error.

What are the problems unique to pre-election litigation?

• There is a natural tension between deciding an issue before election day 

and allowing a case to develop.

• Judges may want to consider if a claim could have been brought sooner 

and if using the doctrine of laches is appropriate.

• Pre-election litigation, and its threat, has become part of the get-out-thevote efforts by both political parties as a way to energize their bases. This 

fact may be a consideration when evaluating the validity of the claims.

What should judges do when dealing with partisan state officials? This is difficult for judges to address, because a number of state judges are selected through 

partisan selection systems, and that process may affect the response of state judges to the claims before them. While nonpartisan election officials would mitigate 

the appearance of partisanship, that is an issue of legislative rather than judicial

response. The appearance of partisanship means that judges have to step outside 

of the partisan debate for their decisions to be viewed as legitimate. The issue of 

partisanship is becoming more pronounced as the state election officials themselves become more willing to bring the litigation.

What interests must be balanced in the pre-election litigation? There is a tension between access to voting and uniform standards for reviewing votes to prevent fraud. The statutory language is important in striking this balance, and most 

of the decisions are done on a case-by-case basis, making for a lot of unsettled 

law. There is some argument that the democracy cannon suggests the statutes attempting to limit voting rights should be read in favor of the voter. (Professor 

Richard Hasen, whose presentation is described below, makes this argument.)

Additionally, there are concerns about who is a voter and what the right to vote 

means. Is it that people who are legally registered should not have their votes diluted by those who are not properly registered? What records should be provided 

to prove voter identification and prevent fraud? Are the concerns about fraud 

enough to keep voters from the polls or lose faith in the process? Although there 
National Center for State Courts Election Litigation Resources

Federal Judicial Center 8/28/2012 3

is little evidence of concerns about fraud keeping people from the polls, the idea 

has shaped the doctrine. (One only needs to consider the recent wave of voter 

identification laws and the Supreme Court’s 2008 decision in Crawford v. Marion 

County Election Board.

1

) Provisional ballots were seen as a way around these 

concerns, but they have their own problems.

Part II: Election Day

What are the considerations when a suit is filed on election day?

• Are all parties represented at the courthouse? Can they be?

• What is the remedy? Will the remedy be viewed as intending to influence 

the outcome of the election?

• Are different jurisdictions interpreting the same law differently?

• Keep in mind that it can be a rough day for voters, because of lines, 

delays, and enforcement of inappropriate rules. These are also relevant 

considerations in litigation.

• Polling place failure, such as running out of ballots and long lines, may be 

compelling reasons for judicial intervention.

• Do poll watchers, election judges, and the media have access to polling 

locations?

• Is there disparate enforcement of the rules? If there is a power outage, for 

example, parties should be able to agree to extend the hours, because it 

affects both parties equally. Bipartisan buy-in is important. If the voting 

patterns favor one party and the disaster is localized, there may not be 

party agreement.

• Parties can notify judges in advance that they want to be alerted if a 

particular issue arises. Both parties should always be present.

How can this litigation be handled expeditiously? The efforts in 2006 of 

Ohio’s secretary of state are seen by some as good examples. It was expected in 

the 2006 midterm election that there would be long lines in Ohio. Before election 

day, the secretary of state got both parties on a conference call to discuss whether 

extending poll hours would be necessary if the lines were very long. Both parties 

agreed not to extend polling hours as long as the voters in line at closing were 

permitted to vote. While getting both parties to agree to procedures before an 

election is really a job for the state officials themselves, it can also be done by the 

courts in some cases, and doing so can smooth the litigation process.

How do you deal with developing a factual record on such short notice? In 

pre-election litigation, judges can give more scrutiny to the facts because they 

have more time. Parties should be given the benefit of the doubt when time is 

more of an issue, as it is on election day. There is less harm in handing out ballots 

when the facts are in question than in turning away voters.

What part does county-level variation play in election-day disputes? Countylevel officials make decisions about election mechanisms and machines. Most 

states do not have uniform standards. This is also true of the number of voting 

 

1. 553 U.S. 181.
National Center for State Courts Election Litigation Resources

4 Federal Judicial Center 8/28/2012

machines per location. Systemic problems with voting technology and availability 

should be addressed by the courts.

Part III: Post-Election Day

After the election, the stakes of litigation are much higher. The most difficult issue for courts to address is the balance of how closely to read the statutes versus 

what happened at the polls on election day. Is strict compliance with the law the 

most important thing, or is it voter access? Judges may need to be tougher on parties about the factual record and what actually occurred on election day. Judges 

must balance partisan candidates with a fair process. It is important that the judges 

be clear in their application of the rules, how they arrive at their decisions, and 

that they be consistent in their decision-making.

Judges rarely deal with election issues, but the attorneys are experts. As much 

as they can, it is important for judges to be steeped in election law before they 

face the cases before them. There have been many changes to the voting process—legal, mechanical, and technical—since the last case was decided in most 

states. What is on the books may no longer be good law.

How do judges deal with election variation by precinct? State laws vary widely. The court may need to take into account what happened on election day in 

each precinct in question. Judges cannot create a pattern after the fact or write the 

rules for elections after they have taken place. An example is when absentee ballots are not signed, though this is required by law, but they were accepted by an 

election official. How do you reconcile the problem with the fact that voters were 

not notified of the error in time to correct it? Judges cannot remedy poorly written 

legislation either.

Using an intent-of-the-voter standard when reviewing the process for counting 

ballots can be challenging. There is high variation in these standards. Courts do 

not have good law on what to do with equal protection challenges when there are 

different applications of the law. Generally, courts rule that review of ballots must 

be the same for all votes. There cannot be variation in review depending on where 

one lives. The case law, however, can be unclear on what rises to the level of an 

equal protection claim. Unequal access to voting services is generally best addressed before election day. Unequal application of the rules is both an electionday issue and a post-election issue. Although the best remedy may be state-wide 

standards, that may be a legislative remedy, not a judicial one.

What remedies are available to deal with election-day problems? Judges cannot go back and undo actions, but the remedies available vary with state law. New 

elections can be called, but this is typically a last resort. Parties will always argue 

the vote was extremely close and the number of questionable votes is larger than 

the margin of victory. The court needs to provide for a uniform set of eyes on the 

universe of ballots for review. If this is not possible, other measures, such as revoting, proportional reductions in votes, blind polls, and coin flips, have been 

used to resolve these disputes. These are extraordinary remedies. Fraud would 

have to be pervasive to prompt a revote. Fortunately, the procedures for a revote 

are not that different from run-off elections, which are far more common, so there 

is some guidance on how to conduct a revote.
National Center for State Courts Election Litigation Resources

Federal Judicial Center 8/28/2012 5

There is little that the judiciary can do about the increase in filings related to 

elections. A legislative remedy would be necessary to reduce many of the problems with elections. The federal judiciary is the only non-partisan broker in the 

dispute, and it needs to remain so. Election law doctrine is unsettled, so disputes 

are likely to rise, especially as the partisan divide in the country continues to increase.

Video Series 2: The Election Law Issues Program

This program is made up of three series of lectures. Professor Richard Hasen provides an overview of the unique nature of election litigation, and covers preelection issues. Professor Edward Foley discusses election-day and post-election 

litigation. Professor Aviel Rubin discusses the technical issues of electronic voting machines, including the essential features and concerns. All of the videos also 

contain PowerPoint presentations, which are available online.

Part I: Professor Richard Hasen

Why are election cases different?

• Judges typically try to avoid getting involved in the political thicket, with 

the exception of redistricting cases in the 1960s.

• There is a substantial increase in this litigation, especially since the 2000 

election. Most, though not all, of this litigation occurs in state courts.

Why has this type of litigation increased?

• Election litigation is used as a political strategy to win elections. Parties 

are less reluctant to bring suit.

• There have been substantial changes in voting laws (such as HAVA), 

voting technology, and voter-eligibility requirements.

What is the effect of the increase in litigation?

• Public confidence in elections has decreased substantially.

• The decrease in confidence shows strong partisan and race divisions.

What are the benefits of engaging in pre-election litigation?

• Deciding disputes before election day may minimize the court’s 

involvement in political situations.

• Pre-election remedies may be the only ones available.

• Resolving disputes early prevents plaintiffs from having litigation as an 

option after the fact.

What are the costs of pre-election litigation?

• It can create confusion as the election draws near.

• There may be ripeness issues.

What are the procedural concerns inherent in pre-election litigation?

• It can put a strain on judicial resources, especially when the rules for 

expediting cases are not clear. Courts may want to have these procedures 

ready in advance of election day.

• There may not be an adequate evidentiary record. Courts may want to 

allow parties to submit the available evidence for review.
National Center for State Courts Election Litigation Resources

6 Federal Judicial Center 8/28/2012

In 2006, the Supreme Court said in Purcell v. Gonzales2that it is important for 

courts to take evidence and provide reasons for their decisions. This will help both 

with public confidence in the decision and with the appeals process. It is possible 

for the court to issue a decision on the outcome and follow up with a more detailed opinion at a later date. The 2002 New Jersey election for U.S. Senate is an 

example in which the court did this.

What are the substantive concerns about pre-election litigation?

• Is the standard of review strict scrutiny—because this is a fundamental 

right—or the sliding scale—because the challenge is to a garden variety 

election issue, such as the required number of signatures to appear on the 

ballot?

• Should judges use a literal reading of the statute or follow the intent of the 

voters?

How can difficulties be minimized?

• More precise legislation would reduce uncertainty.

• Clearer signals about the standards that apply would minimize difficulties.

Part II: Professor Edward Foley

What are the considerations for election-day litigation?

• Are parties using litigation as a way to win the election?

• Is the judiciary maintaining the appearance of impartiality?

• Can state officials handle this matter?

• Will intervening in the dispute impair the validity or integrity of the 

election?

• Should this issue have been raised before election day?

• Can this issue be better addressed after the election?

What challenges can be brought regarding access to polling locations?

• Election observers, including the media, may want access to polling 

locations. There is typically a media exception to the Supreme Court’s

1992 decision in Burson v. Freeman3regarding approaching voters within 

100 feet of a polling location.

• What or who qualify as the media now?

• What about non-media nonpartisan organizations, such as the League of 

Women Voters?

What challenges can be brought regarding voter eligibility?

• Provisional ballots are required by HAVA—no voter can be turned away 

without voting—but precincts need enough ballots for everyone who 

shows up.

• Some states have requirements that provisional ballots be cast in the 

proper precinct or not counted at all. Poll workers may have an obligation 

to tell the voter the proper precinct and that the vote will not count if a 

provisional ballot is cast in the wrong precinct.

 

2. 549 U.S. 1.

3. 504 U.S. 191.
National Center for State Courts Election Litigation Resources

Federal Judicial Center 8/28/2012 7

• Different types of identification may be required to cast a provisional 

ballot. Most states allow voters to bring proper identification back within a 

specific period of time to allow the vote to count.

• In Spencer v. Pugh,

4

the Supreme Court noted that voting challenges are 

allowable, but the court has to be ready to respond if these challenges are 

the result of misinformation or create substantial delays at polling 

locations.

• Voter intimidation can be a problem, but the remedy may also be 

problematic. Even if it is clear that someone wants to engage in an illegal 

action, prosecution may be barred by the prior restraint doctrine. It may be 

best for the behavior to occur so that appropriate action can be made to 

respond to a clearly observed behavior.

What are the challenges that judges face regarding ballot security?

• Rules about the chain of custody for ballots need to be clear and 

transparent.

• If there is a breakdown in the chain, prompt response may be necessary to 

prevent nullification of the election.

What are the likely challenges regarding extending polling hours?

• Judges may want to exercise caution when entering this area. Often the 

delay in voting is treated as reversible error. The exception would be 

systematic or widespread failure of voting machines.

• Most states have laws allowing those in line at closing to vote. If these 

laws do not exist or are not being enforced, judicial intervention may be 

necessary.

What should judges consider before getting involved in a dispute?

• Would intervention make matters worse?

• Can the issue be handled with provisional ballots or post-election 

litigation?

• Will a partial remedy violate the Equal Protection Clause?

• Judges cannot undo errors cast on regular ballots; provisional ballots can 

always be verified and counted after election day is over.

Post-Election Litigation. There are several problems that make post-election 

litigation even more challenging than election-day litigation:

• Candidates know how many votes they need to win.

• No one is ignorant about who benefits from the law.

• There is a need for quick action to certify elections.

• It is difficult but necessary for courts to appear neutral.

 

4. 543 U.S. 1301 (2004) (memorandum).

In Spencer, it was alleged that the Republican Party planned to send hundreds of people to 

predominantly African-American districts to challenge voters on election day. While the Supreme 

Court did not review the case, in part because of the last-minute nature of the litigation, Justice 

Stevens issued a memorandum putting the parties on notice that the Court would be closely watching what happened on election day 2004 in Ohio, and it would respond to allegations of fraud, if 

necessary.
National Center for State Courts Election Litigation Resources

8 Federal Judicial Center 8/28/2012

• The law itself is not clear on this issue.

• The facts of cases matter more than the doctrine.

When reviewing cases, judges may want to start with the statutes, but they 

need to be prepared for gaps and ambiguity in the law. Judges should keep in 

mind that vague constitutional provisions can trump statutes. The doctrine is not 

specific enough to dictate the outcome. Courts have wide latitude to do justice.

The intervention required depends on the nature of the election and the problem at 

issue. In looking at the dispute, judges should consider the following factors:

• What is the importance of the race? Is this a statewide office or a local 

office?

• What is the margin of victory?

• Were the problems in the election technical?

• Were the problems widespread?

Newspaper accounts of what is going on in the dispute may be helpful so that 

judges have a better sense of what went on in a specific precinct.

Procedural or Threshold Issues. Some threshold matters are common in the 

political thicket of post-election litigation.

• “Election contests” are the vehicle under statutory law in which these 

issues are decided.

• One party will be seeking to overturn the results.

• There are different rules for state and federal races, as well as for 

primaries and general elections.

• The doctrines of estoppel and laches are typically important.

• Judges may want to consider if challenges to voter eligibility can be 

brought better before the election.

The statute in question may be mandatory or directory in nature. If it is mandatory, a remedy is required. The election would be put in doubt if the statute 

were not followed. If the statute is directory, a remedy is not required. The problem with statutes is that they allow for administrative laxity on the part of state 

officials, especially when they are not mandatory.

When considering a remedy, the judge may first need to determine if the election will stand. If not, the following remedies are available:

• Subtracting the unlawful votes, adding the lawful votes, and declaring a 

new winner.

• Voiding the election and ordering a new one.

• Voiding the election, creating a vacancy, and using the statutory rules for 

filling a vacancy.

• Voiding unlawful ballots, ordering a count of the lawful ballots, and 

remanding the case.

If there is a new election, the judge may need to consider the following:

• Will the election be whole or partial? (This may depend on the costs of 

conducting a new election.)

• If there are at-large offices, a whole new race will be necessary.

• Should a single precinct be voided? If so, will it change the outcome?
National Center for State Courts Election Litigation Resources

Federal Judicial Center 8/28/2012 9

Types of Cases. Post-election cases typically come in three types. 

• Extra votes were cast (more votes than signatures on the poll records).

• Missing votes (fewer votes than signatures on the poll records).

• Other outcomes clouding the result for the election.

Extra votes can be the result of fraud or a mistake. Fraud includes tampering 

with the count or stuffing the ballot box. Mistakes include ballots cast by ineligible voters and procedural errors. Ineligible voters include noncitizens, nonresidents, and felons. Judges may want to consider whether the number of extra votes 

is larger than the margin of victory and which party benefited from the extra 

votes. The nightmare scenario is when the number of votes in question exceeds 

the margin of victory and there is no way to determine who benefits from the 

votes. In this situation, there are three options:

• Uphold the outcome.

• Call a new election.

• Use proportional deductions:

1. Identify the precinct and the percentage of the vote for each candidate 

in that precinct.

2. Apply that proportion to the number of questionable ballots and reduce 

the vote total accordingly.

There is a debate on the use of proportional deduction. Older cases tend to use 

this method. The statutes are generally silent about its use. Given how old the 

practice is, modern methods may be a more appropriate as remedies. Proportional 

deductions are problematic when ineligible votes cannot be matched to a specific 

precinct, if the losing candidate cannot prove who benefited from the ineligible 

votes, and if finding out what happened in the election—specifically who each 

voter intended to choose—violates the sanctity of the secret ballot.

Other Procedural Problems. When there are more ballots cast than verified 

voters, judges could randomly withdraw ballots—this may be allowed by statutory law—or the precinct with the problem could be voided. A new election is also 

an option.

If there are votes that should be included, it may be important to determine 

why this happened. The first question to answer is whether the missing votes can 

be tracked down, and then the focus can move to determining the reason.

• Was this an organized effort to throw the election?

• Was this a canvassing error?

• Was this a machine error?

• Was this human error?

• Was a candidate mistakenly omitted from the list?

• Was this a ballot design error?

• Was the voter denied a provisional ballot?

• Did a polling place shut down?
National Center for State Courts Election Litigation Resources

10 Federal Judicial Center 8/28/2012

The law is mixed on issues of human error. Bush v. Gore5showed that there is 

a need for clear rules when determining the voter’s intent. If a candidate is omitted, the law is clear: the election should be voided. If there is a ballot design issue, 

courts are often reluctant to enter at the election or post-election stage. Most of 

the litigation about ballot design can be handled in the pre-election phase. If a 

voter is denied a provisional ballot, a remedy is required. If the polling place shuts 

down, a judge may need to consider whether the problem rises to the level of invalidation. If there is known fraud by one candidate, the other candidate wins by 

default.

Was there a severe chain-of-custody breach? Were seals broken or tampered 

with? These undermine the integrity of the election; a revote may be necessary. If 

there is a prohibited campaign practice, such as campaign finance violation, generally the results of the election will stand even with these problems.

Absentee ballots present a unique problem. There are special rules for who 

can handle these ballots, and courts may need to make sure that there were no efforts to buy or influence the votes. Noncompliance can result in voiding the ballots or the election result. With the rise in the use of absentee ballots, this is more 

likely to become an issue.

If there are uncounted provisional ballots, courts must determine whether the 

voters are eligible. Did a voter submit a registration application, but the DMV 

failed to send it on? Did the post office or a third-party registration group, such as 

an interest group, fail to deliver the registration? Did a voter bring back identification in a sufficient amount of time? What types of identification are acceptable?

The Need for Speed. There are timing issues for the elections. Some states 

have safe harbor provisions, such as in presidential elections, in which elections 

must be certified within a specific time frame so that the winner can assume office. Not all states have these provisions.

Part III: Professor Aviel Rubin

There are really two issues that arise for electronic voting:

• Are the systems counting the votes correctly?

• How much control should manufacturers have over the outcome of 

elections?

While throwing elections may not be a likely outcome, it is important to keep 

in mind that rigging an election is easier to accomplish in electronic voting systems than it is to detect in such systems. Electronic systems make it more difficult 

for elections to be observable, harder to audit, and harder to recover from failures.

The more complex the voting system, the easier it is to disrupt it.

 

5. 531 U.S. 98 (2000).