Reducing Election Litigation

Which candidate’s name should be listed first on a ballot? Should inactive voters’ names appear printed in polling place books? Should elections be conducted exclusively by mail? Should online voter registration be available to prospective voters? When voters sign a petition to help a candidate appear on the ballot, must the petition’s circulator reside in the state? These are the questions that ordinary election administration rules answer. There might be better or worse rules. These rules might advance one set of benefits in exchange for another set of costs. They could benefit one candidate or group over another. Like every rule, they could alter behavior in ways that affect who participates in elections or which candidate wins. But they have another thing in common: plaintiffs have litigated each dispute. Judges have increasingly evaluated ever-finer points of election administration. This Article posits why the judiciary has done so and offers potential ways to reduce election litigation