THE BLOG

Election Litigation Threat Level: Still Orange

10/31/2008 12:29 pm ET | Updated May 25, 2011

It is a sign of how pathetic and dysfunctional our system of election administration is that once again news outlets are running their stories on armies of lawyers, potential election machine breakdowns, fear of voter fraud, and the potential of an election meltdown in Ohio or elsewhere leading to post-election litigation.

Here's what I wrote in a Roll Call oped in 2005:

    Who cares about election reform? Almost nobody. You'd think that after the 2000 presidential election debacle in Florida -- and after narrowly avoiding post-election litigation in 2004 in Ohio -- the states and the federal government would be using this time between elections to move ahead with serious election reform. After all, free and fair elections are a cornerstone of democratic government, and public confidence in our system of elections is quite low. Unfortunately, things are moving in exactly the wrong direction, and they won't get better without stronger leadership from Congress, state legislatures and the press.
And here's what I wrote in a NY Times oped in 2006:
    We've moved in exactly the wrong direction. Election administration reform has become more, not less, politicized since Bush v. Gore. Since 2004, voter identification laws have been supported only by Republican legislatures and opposed by Democrats. The debate over election integrity versus election access makes administration just another locus for partisan debate. This should and can end with nonpartisan professional administration.

Even with divided government coming again to Washington, there is an opportunity to take steps that would keep each party from gaining partisan advantage, and that can end our biannual anxiety over whether we are headed for another election meltdown.

Just before that Election in 2006, I wrote a post for this blog, Election Litigation Threat Level: Orange. It begins:

    Major news outlets have been running their stories on the possibility of post-election litigation in light of continued problems with both voting technology and new voting rules (both indirect results of the 2000 election debacle). As I've written in the past, the press and public pay attention to election reform issues only just before the election, when it is too late to do anything about it. The phone has been ringing off the hook today with reporters wanting to know the answer to the following question: will we know who controls the outcome of the House or Senate before we go to sleep tomorrow night, or is there the potential for this election to go to litigation?
The post concludes:
    What needs to be done? Just like we would take great care to prevent a small chance of a nuclear meltdown, we should be taking great care to prevent the small risk of a major election meltdown. (If the election goes without a major glitch tomorrow, watch for this issue to be forgotten by the press and public until just before the 2008 election.) I've written extensively elsewhere about the kind of changes we need to our election system, beginning with a move toward nonpartisan election administration (where the election officials have ultimate allegiance toward the integrity of the election process, not the election of a particular party). But that's an issue for another day (a day when, unfortunately, most of the press and public will have ceased paying attention).

Today, my main solace from the point of view of election administration is that I don't expect the presidential election to be close, and control of Congress won't hang in the balance of a disputed close election. But something has to be done to move things forward.

The week after election day, I'll be hosting a series of special blog posts on the Election Law Blog from leading scholars of election law and administration reflecting on 2008 and pointing the way toward the future.