By Wendy Underhill
The U.S. Constitution (Art. 1, Sec. 4) says that "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof…" And yet it hardly seems that way these days. Sure, legislatures have been busy fine-tuning election laws this year; 2,357 bills have been introduced since January 1, 2012. But the courts have been just as busy reviewing election-related legislation this year—so much so that it begins to feel as though it is judges, rather than state legislators, that are making election decisions.
Indeed, state courts, federal courts and the U.S. Supreme Court have all been working overtime. Just this week, the Supreme Court said it would not get involved in a case involving early voting in Ohio, letting stand a lower court's ruling that early voting must be offered during the weekend before Election Day. Then there's the case from Arizona, dealing with whether voters must prove citizenship at the time of registration. And of course, litigation surrounding voter ID laws just keeps on coming.
NCSL's October issue of The Canvass looked at "Elections and the Courts: A Busy Year;" it's a quick read on many of the hot cases, and provides lots of resources so election geeks can keep up with courtside- action. One key point: legal challenges cause uncertainty for administrators and voters. Its corollary: changes in election law and procedures in the run-up to elections may invite uncertainty and challenge, and it is never good when the words "uncertainty" and "elections" are used in the same sentence.
What to do about that? "Look at the possibility of working with the courts to put a moratorium on election litigation 90 days or so before an election," suggests Doug Lewis, executive director of The Election Center.
Or, divert election cases to a "structurally nonpartisan three-member 'amicus court'—one Democrat, one Republican, and the third chosen by the first two—that would issue opinions in high-profile election cases in advance of the Supreme Court (or whatever court actually had the authority to adjudicate the particular case)." This idea comes from Ned Foley, from the Ohio State University Moritz College of Law.
These ideas will take time to season. And while they do, let's all hope that nothing happens in the November 6 presidential election that adds to the already-full plate for state or federal courts.