Litigation has become a fixture of electoral contests. Litigants today often challenge every step of an election, from the results themselves to picayune aspects of administration. In response to this deluge, some courts have rejected election lawsuits on standing grounds. Such rulings may be unsurprising in federal court, given the tension between the federal standing doctrine’s injury requirements and the generalized nature of many election disputes. But most recent election cases take place in state court, where neither Article III nor the premises animating federal standing doctrine apply. State courts need election justiciability theories of their own.
This Article explores the role of standing doctrine in the future of state-court election litigation. Building on existing state practices and state constitutional principles, we defend a presumptively broad approach to state-court standing in election law cases, which we term simply election standing. We find that most state courts already relax standing to some extent in election cases—an approach that reflects both the flexible power of state courts and state constitutions’ commitment to democracy. State courts may be the best (and only) fora able to resolve pressing election-related disputes and, in turn, to foster certainty, finality, and confidence in election outcomes.
To be sure, rising election litigation is problematic, and opening the courthouse doors has downsides. The Article attends to these concerns. For one, election standing is rebuttable, not boundless, and courts need not hear duplicative or non-redressable claims. The Article also highlights tools other than standing doctrine that can help courts mitigate election litigation burdens. In the end, election seasons may continue to be unfortunately litigious times—but state courts generally fulfill their judicial role by resolving rather than avoiding election cases.
* Professor of Law and Rowe Faculty Fellow in Regulatory Law, University of Wisconsin Law School.
** Staff Attorney, State Democracy Research Initiative, University of Wisconsin Law School.
For helpful comments and conversations, we thank Derek Clinger, Rebecca Green, Derek Muller, Lisa Marshall Manheim, Bob Williams, Robert Yablon, and participants in the University of Illinois Law Review Symposium on Election Law. We are grateful to Jennifer Gisi, Sadie Murray, Jacob Neeley, and Thomas Trethaway for their excellent research assistance.
The full text of this Symposium is available to download as a PDF.