The Procedure of Election Law in Federal Courts

Research output: Contribution to journalArticle


Election law scholars have paid scant attention to the different procedures by which courts decide election law cases. Further, there has been little exploration of the reasons why certain processes exist, and there is even less discussion of which procedures are best for election law cases. One commentator has advocated for state legislatures to define clearly certain procedural matters for election contests, including: “(1) who can be a contestant; (2) what standard of evidence to require; and (3) how to expedite contests.” But there are more fundamental and foundational questions: What goals are we trying to achieve in enacting special procedures for election law? Do the current processes meet these goals? If not, what modifications are necessary?

This Article answers those questions, proceeding in four Parts. Part II identifies the values and features we should strive to promote in creating a special procedure for election law cases: timeliness, accuracy, legitimacy, minimization of ideology, preservation of proper judicial roles (judicial economy), and signaling. If we are going to have specific processes unique to election law cases, these processes should be based on sound principles. Part III examines federal court procedures for election law cases, describes the way in which federal courts hear election law disputes, and evaluates these processes in light of the goals discussed in Part II. Part IV advocates “merits-based direct en banc review” as a uniform judicial procedure for election law cases in federal courts. Briefly stated, in this system, a single trial judge must expedite discovery, resolve factual disputes, and make a timely decision on the merits. The losing party then has a right to an expedited appeal directly to the full en banc court for any nonfrivolous election law questions. The en banc court reviews the district court’s findings of fact for clear and convincing evidence (or a similar standard) and analyzes the legal conclusions de novo. Enacting merits-based direct en banc review will provide uniformity and clarity to the judiciary’s role in affecting elections and their outcomes. It will also meet many of the goals we should strive to achieve in creating a special procedure for election law cases. Perhaps most important, if the federal judiciary is to remain intimately involved in the election business, then merits-based direct en banc review is the best procedure to sustain a robust democracy in which voters can freely and fairly elect their leaders.

Original languageAmerican English
Pages (from-to)443-488
JournalUtah law review
StatePublished - Jan 1 2011


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