Election Law: Volume 2

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues stemming from election law. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals.

The timing of election litigation matters. "[A]ny claim against a state electoral procedure must be expressed expeditiously." Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990) (citing Williams v. Rhodes, 393 U.S. 23, 34-35, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)). The Supreme Court underscored this precise point in [. . .] Republican Nat'l Comm. v. Democratic Nat'l Comm., ___ U.S. ___, 140 S. Ct. 1205, 1207, 206 L.Ed.2d 452 (2020). The Court's direction was clear: federal courts should avoid announcing or requiring changes in election law and procedures close in time to voting. Doing so risks offending principles of federalism and reflects an improper exercise of the federal judicial power. Even more, belated election litigation risks giving voters "incentive to remain away from the polls." Purcell v. Gonzalez, 549 U.S. 1, 5, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006); see also Crookston v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016) ("Call it what you will— laches, the Purcell principle, or common sense—the idea is that courts will not disrupt imminent elections absent a powerful reason for doing so."). On this reasoning, we have rejected as late claims brought too close in time before an election occurs. See Democratic Nat'l Comm. v. Bostelmann, 977 F.3d 639, 642 (7th Cir. 2020); Jones v. Markiewicz-Qualkinbush, 842 F.3d 1053, 1060-62 (7th Cir. 2016); Navarro v. Neal, 716 F.3d 425, 429 (7th Cir. 2013).

The same imperative of timing and the exercise of judicial review applies with much more force on the back end of elections. Before a court can contemplate entering a judgment that would void election results, it "must consider whether the plaintiffs filed a timely pre-election request for relief." Gjersten v. Bd. of Election Comm'rs, 791 F.2d 472, 479 (7th Cir. 1986) (emphasis added) (footnote omitted).

Trump v. Wisconsin Elections Com'n, 983 F. 3d 919 (7th Cir. 2020)