When Elections Go to Court

Last month, ERN announced the Election Overtime Project, an exciting new initiative we’ve launched in partnership with the Bridge Alliance. The program will help journalists in six battleground states prepare for close and contested elections likely ahead. At the core of this effort is a focus on elections that go to court.

‍The idea of an election turning on a court decision may seem disconcerting. Doubts still linger over the Supreme Court ruling in the 2000 election. And a loser conceding defeat – once a reliable norm – provides far better closure than judicial action. But circumstances will certainly arise, in this or a future election, when we’ll need courts to be the ultimate decider of a disputed election. As imperfect as they may be, no institution is better suited than courts to consider evidence, render judgment, and anchor the rule of law in elections.

‍Many countries give courts responsibility for confirming results of all elections, not just contested ones, and some countries have election tribunals solely dedicated to this task (as ERN friend Andrew Ellis explains in this very useful handbook on electoral justice). At a minimum, all democracies allow recourse to courts for judgment of contested results. For a long time, the United States didn’t measure up to that standard. Historically, the role of federal courts in policing the electoral arena was minimal and contested at best. The Supreme Court only embraced a fuller view of its role under the 14^th Amendment in the second half of the 20^th century.  As a result, egregious election misconduct was allowed to stand, such as the ballot stuffing that gave Lyndon Johnson his 1948 Senate primary win.

It is a very good thing that this prior era, when the rule of law sometimes stopped at the polling station door, has come to an end. But our political culture hasn’t fully caught up. In part this is because the media doesn’t sufficiently emphasize the critical role of courts in elections, or explain the principles that guide election-related court decisions. As a result, misconceptions persist that small irregularities or the mere possibility that fraud could have occurred cause an election to be suspect, even when far fewer votes are involved than the margin of victory. A criminal conviction based solely on what could have happened would never be tolerated, and a change in an election outcome based on similar logic would be deeply unfair to candidates and voters alike. Instead, courts treat election results as accurate until proven otherwise based on evidence affecting enough votes to change the results.

In 2020, dozens of courts across six battleground states followed just this standard in deciding the 64 legal actions filed by the Trump campaign. All but one of was dismissed, withdrawn or decided against the Trump campaign. (See this report for an excellent summary of all cases.) Collectively, these decisions are the definitive verdict on the 2020 election, but they weren’t given the prominence they deserved. Too often commentary in mainstream media cited the opinions of experts on the trustworthiness of the elections, rather than opinions of judges whose rulings are, from the perspective of the rule of law, the last word on the matter. Of course, a lot needs to be done to protect and strengthen respect for the rule of law in our current political environment, but it’s important that journalist covering elections in good faith do so with a full grounding in the role of courts.

ERN’s Election Overtime Program is designed to help. The program will include state-specific policy briefs on election law, media training, and a speaker’s bureau of trusted commentators. Program content will cover safeguards and transparency across election phases; recounts, audits, and other procedures used to verify results; and principles that govern how courts judge election challenges.