electionline Weekly

In Focus This Week

Director’s Note
Mostly quiet on the judicial front – for now

By Doug Chapin
electionline.org

Because the current era of election reform was born in a courtroom – specifically, the chambers of the United States Supreme Court in December 2000 – many believe that courts are the forum of choice for the various policy battles that emerge in the field. 

The reality, however, has not matched conventional wisdom.

Even as high-stakes election dramas play out across the country – from Austin, Texas to Washington, D.C. and everywhere in between – election reform news from the courts has been in short supply. There is some news, however, and it is instructive not only for the substance of the issues involved but also for highlighting the different stages of the litigation process and its impact on any issue. 

Courts are very good at resolving disputes but, unlike legislatures or executive agencies, operate with well-developed procedural rules and an insatiable need for evidence as the basis for their work. Moreover, courts have the power to order decision makers at every level of government to act, refrain from acting, and – most importantly – spend money once a dispute has been resolved. They are also creatures of precedent, looking to previous decisions to guide their own deliberations.

This wide-ranging power, when coupled with the incremental pace usually dictated by precedent, makes even the most aggressive court cautious in the exercise of its authority. It is the exception and not the rule that a court would hear and decide a case as quickly as the Supreme Court did in Bush v. Gore.

Settlement. A little-noticed and usually under-appreciated facet of the legal process is settlement negotiations – that winnowing process that thins the ranks of cases that never get to a full trial.

In Ohio, for example, new Secretary of State Jennifer Brunner (D) has inherited a pile of outstanding election issues from her predecessor Kenneth Blackwell (R). A significant component of the unfinished business was a long list of lawsuits for various alleged deficiencies in the state’s election process. Not long after taking office, Brunner (a former judge) announced her intention to settle many of these cases, including a full-on attack on the state’s election administration system. As Ohio State’s Ned Foley observed at the time, resolution of these cases would not only go a long way toward ending some of the disputes that plagued the Buckeye State in 2006 but perhaps also toward heading off some of the expected disputes in another likely high-profile presidential election in 2008.

Appeal. Once an initial judgment is rendered – especially in federal court, where the stakes are national not just local – another key decision is whether or not to appeal.

Such is the decision currently confronting the plaintiffs in the Indiana voter ID case. There, both the trial court and the Seventh Circuit Court of Appeals ruled in favor of the state’s photo ID law. Plaintiffs challenging the law are now weighing whether or not to ask the U.S. Supreme Court to take the case. As Loyola’s Rick Hasen has observed, the Court is likely to take the case if given the opportunity. Whether or not their ruling would be to plaintiffs’ liking – given the evidentiary problems with the original case and the Court’s own signal that it may be sympathetic to arguments about voter fraud (pp.. 3-4) as a basis for voter ID laws – is very much an open question.

Implementation. Occasionally a court will step in and help manage a case itself, poking and prodding the litigants to a desired result.

Such is the case in New Jersey, where a trial judge overseeing the transition of the state to mandated voter-verified paper audit trails (VVPATs) recently endorsed the state’s plan to submit its VVPAT printer technology to review by the New Jersey Institute of Technology. In doing so she resisted calls from activists to order a more sweeping review of the voting machines – or even an outright rejection of them as is underway in Florida.