The Suits That Counted: The Judicialization of Presidential Elections After Bush v. Gore

After the litigation of the 2000 presidential election are parties, candidates, and interest groups more likely to utilize pre-election litigation as a part of the normal election strategy? Our findings suggest this is the case, at least when a close election is anticipated. The difference in the political landscape and logic after the 2000 litigation is that the political players now perceive the judiciary as a venue of first rather than last recourse. Using data from all fifty states and the District of Columbia, we show that courts are seen as one of the primary arenas for challenging the rules of the game before the election and that litigation by parties is used in a coordinated strategic manner. The political lesson from the 2000 election litigation is that restorative litigation, an attempt to right a wrong or return something to the status quo ante, is more uncertain than preventative litigation, an attempt to alter the course of events before they have occurred. That is, pre-election litigation with potential for actually altering the outcome (preventative litigation) is a better strategy than post-election litigation that at some level seeks to change what has already occurred (restorative litigation). Note: At the time of writing, Christopher Shortell was affiliated with California State University, Northridge