The threat of a lawsuit in Washington State invites inquiry whether pre-election or post-election litigation would be preferable.
As in 2004, the question has arisen whether an otherwise eligible voter will be disqualified because a third-party group delivered the voter’s registration form after the deadline. According to a report from Washington State, approximately 1100 registration forms have been rejected because Project Vote used UPS, rather than the regular postal service, to deliver the forms to the King County elections board in Seattle. Had they been postmarked by U.S. Mail by the deadline, they would have been accepted. But UPS did not postmark the package, and although the forms were given to UPS before the deadline according to UPS records, they were not submitted to the election board until after the deadline passed. Project Vote has threatened to sue if these forms are not added to the list of registered voters qualified to cast a countable ballot in the November 7 election. This lawsuit could take one of two forms: a pre-election suit during the next two weeks seeking an injunction that would add these names to list, or a post-election suit demanding that provisional ballots cast by these voters be included in the certified count that ultimately determines the outcome of this year’s elections. As we saw in 2004, a dispute over the eligibility of 1100 provisional ballots could well leave the results of a close election in limbo for months: the Washington’s gubernatorial election was certified on December 30, 2004, with a 129-vote margin for the Democratic candidate, switching the result from the outcome from the initial count and first recount, because of the inclusion of 735 previously uncounted provisional and absentee ballots. Further litigation over disputed provisional ballots did not end until June 6, 2005, over five months later. A quick pre-election judicial resolution over the eligibility of these voters, which (if they were disqualified) would be binding on any subsequent litigation over provisional ballots cast by these voters, might be preferable to protracted post-election litigation over the validity of their provisional ballots. Any such post-election litigation, in addition to delaying the final determination of winners in close races, would be conducted in the unfortunate context of knowing how many new ballots would be necessary to alter the outcome of these races. These problems associated with post-election litigation have caused several scholars, including me previously, to prefer pre-election litigation that clarifies voter eligibility rules before ballots are cast. Yet this preference for pre-election litigation is now subject to some revisiting, or at least refinement, in light of the U.S. Supreme Court’s decision on Friday in Purcell v. Gonzales. This particular dispute over the 1100 late registration forms provide a good concrete context for weighing the pros and cons of litigation before and after Election Day. As others have suggested in email exchanges discussing the Supreme Court decision over the weekend, how this balance comes out may depend on the specific circumstances at issue. In some situations, pre-election litigation may impose less severe costs overall on the electoral system. In other circumstances, the opposite may hold true. One point, however, seems clear: it would be beneficial for election law scholars to undertake more systematic study of the relationship of pre-election and post-election litigation and their effects on the process of casting and counting ballots.