We Haven't Seen the Last of Election Litigation

By Richard L. Hasen / Special to the Times / June 10, 2005
http://seattletimes.nwsource.com/html/opinion/2002324029_hasen10.html

The gubernatorial election contest in Washington state has ended, but its impact will extend far beyond the state for many years. I draw three main lessons from the Dino Rossi-Christine Gregoire battle: High-profile legal contests in very close elections will proliferate; public opinion about the legitimacy of the election process and the courts remains fragile; and the government must put more resources into fixing both election-administration problems and election law.

First, it now appears virtually impossible to avoid litigation in the case of close elections. The breaking point appeared to be Bush v. Gore, the case that ended the Florida 2000 recount. According to research I recently concluded, we have seen an explosion in election litigation since the case, driven only in part by the U.S. Supreme Court's actual holding that certain vote-counting procedures can violate the equal protection clause of the 14th Amendment. Equally important appears to be decreased resistance to litigation on the part of losing candidates, who no longer simply accept the results of an election that is essentially a statistical tie.

The temptation to litigate has become nearly impossible to avoid. The combination of a very close election with a highly polarized electorate and a far-from-perfect election-administration system creates the right conditions for litigation. With so much at stake, and so much imperfection in the system, why would rational candidates now choose not to sue?