The current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts’ treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not share interests with the voters who supported them; and that only state legislatures, and not Electoral College nominees, had standing to sue under the Electors Clause (a relatively untested area). Moreover, many courts confused standing doctrine with the merits. All this threatens to create dangerous precedent which would improperly prevent full consideration of the merits of future meritorious voting rights and election suits.
Getting standing right is particularly important in election cases. Election challenges like these will recur regularly. Because elections ensure democratic health, and because the political process is often not incentivized to fix electoral problems, judicial intervention is particularly necessary. In addition, election cases raise unique standing challenges, because the asserted harms are often diffused. And they present timing problems: sue too far in advance, and courts will reject the alleged harms as speculative; sue later, and courts may decline relief under the Supreme Court’s “Purcell doctrine” cautioning against disrupting electoral rules on the eve of an election. This Article synthesizes the lessons to be derived from the 2020 election cases regarding election case standing, critiques where the courts’ analysis seems incorrect, and proposes general standing rules for voters, candidates, campaigns, Electors, and elected officials.
Steven J. Mulroy,
Baby & Bathwater: Standing in Election Cases After 2020,
Dick. L. Rev.
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol126/iss1/4
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