Law Commons^™

Election Law Pleading, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article explores how the Supreme Court’s recent pleading decisions in Twombly and Iqbal have impacted election litigation. It explains how Twombly and Iqbal’s “factual plausibility” standard usually does not help in an election case, because there is often little factual dispute regarding the operation of the election practice. Instead, the real question in a motion to dismiss is whether the plaintiff has stated a viable cause of action against the government defendant who is administering the election. But Twombly and Iqbal’s rule does not assist in answering this question. That is, Twombly and Iqbal are incongruent with …

The Foundational Importance Of Voting: A Response To Professor Flanders, Joshua A. Douglas

Law Faculty Scholarly Articles

Voting is the foundational concept for our entire democratic structure. We think of voting as a fundamental-the most fundamental-right in our democracy. When a group of citizens collectively elects its representatives, it affirms the notion that we govern ourselves by free choice. An individual's right to vote ties that person to our social order, even if that person chooses not to exercise that right. Voting represents the beginning; everything else in our democracy follows the right to vote. Participation is more than just a value. It is a foundational virtue of our democracy.

Professor Chad Flanders, in a thought-provoking contribution …

Discouraging Election Contests, Joshua A. Douglas

Law Faculty Scholarly Articles

This essay offers a few proposals for discouraging losing candidates from contesting the certified result of an election. The ultimate goal in any election, of course, is to ensure that a state declares as the winner the person who actually received the most votes. But when an election is close, a candidate on the losing side might see an incentive to continue the fight in the courts on the off-chance that it would change the outcome. The candidate could challenge, for example, certain provisional or absentee ballot—even if the likelihood that the candidate will win is slim (but still theoretically …

Procedural Fairness In Election Contests, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article uncovers the different mechanisms states use to resolve election contests. One universal rule regarding post-election disputes is that "[t]here is no common law basis for election challenges." As the Iowa Supreme Court explained, "[t]he right to contest an election is only conferred by statute, and contestants must strictly comply with the provisions of the statute in order to confer jurisdiction. Thus, contestants are limited to the scheme provided by the legislature." An inquiry into election contests therefore entails a survey of state election statutes and constitutions. Although it is possible that parties may file in federal court and …

To Hava, And Beyond!, Joshua A. Douglas

Law Faculty Scholarly Articles

Book review of Martha Kropf and David C. Kimball, Helping America Vote: The Limits of Election Reform. New York, NY: Routledge, 2012, 154 pp., $41.95 (paperback).