In this presidential election year and a hotly contested election season, the Election Law Program has launched a web-based tool aimed at helping judges resolve election litigation fairly and efficiently.
The Election Law Program, a joint project of William & Mary Law School and the National Center for State Courts (NCSC), launched a State Election Law eBenchbook website June 7, five months before November elections. The eBenchbook resource assists judges in navigating the country's complex election codes. As the November election approaches, judges often must interpret and rule rapidly under the twin pressures of tight timelines and public scrutiny.
"Since 2000, the rate of election litigation has risen greatly in this country," said Professor Rebecca Green, an election law expert and co-dDirector of the Election Law Program at William & Mary Law School.
She notes that before 2000, there was an annual average of 94 election cases. That annual number has doubled, with 2,849 decisions since then, according to Rick Hasen's Election Law Blog.
The eBenchbook is meant to address a problem identified by the Conference of Chief Justices, which noted that "the number of election law disputes being brought before the state courts has increased dramatically in recent years, often requiring immediate resolution by judges who may be unfamiliar with the basics of election law."
"To compound the issue, each state's election laws are a creature of state law, so we have 50 different sets of rules," said Green. "That means there can be no generalizing on election issues from other states' experiences.
"To date, there has not been a source where a judge in a particular state can turn to a practical reference that's keyed to that state's unique election code. Our state election law eBenchbooks will fill that gap."
Three states were chosen for the launch: Virginia, Colorado and Florida.
"In choosing these three states to start with, we wanted geographical diversity," explained Austin Graham, a recent William & Mary Law School graduate and project manager. "We also wanted to start with swing states and states where there has been a lot of election law litigation. We will add to these three as we move forward."
The eBenchbook begins with each state's code and provides annotations from state election law experts for clarity and context. The eBenchbook hotlinks to quick definitions of terms in each state's election laws, to relevant case law, advisory opinions, regulations and a range of reference sources useful for rapid decision-making.
"It is a dynamic resource," said Green, "allowing bipartisan committees of election law experts in each state to add commentary, perspective and context to what would otherwise be a recitation of statutes."
The Hon. Terry Lewis, a Leon County Florida circuit judge who played a central role in Bush v. Gore and who sits on the Election Law Program's advisory board, shared his perspective.
"Election litigation, once a rarity, has become increasingly common since Bush v. Gore. The Election Law Program's eBenchbook will be a welcomed resource for judges deciding election-related cases," he said. "The resource enables judges to gain a quick understanding of the context of the statutes they are looking at.
"It is a platform that enables a bipartisan team of attorneys, election administrators, and scholars in judges' own states to include ancillary materials that would take days, weeks, or even months to collect."
Election law cases can be enormously consequential to democracy, said Davison M. Douglas, dean of William & Mary Law School.
"The eBenchbook project assists in the resolution of election disputes by providing a nonpartisan resource that enhances our understanding of dense election codes," he said. "The project also helps the general public gain greater insight into the laws that determine democratic outcomes."
Adam Ambrogi, program director at the Democracy Fund, which funded the eBenchbook project, noted that there is often great pressure to quickly resolve conflicts that occur in the election process.
"In an increasingly complex election law environment it is even more important to provide judges with the information they need to arrive at the right decision," Ambrogi said.
Th eBenchbook is the first source of its kind for state court judges that provides reliable references to a particular state's unique election code, said NCSC President Mary McQueen.
"The eBenchbook not only helps judges make fair, timely, and efficient decisions in these disputes, it provides confidence to the public that contested elections are decided in a precise and nonpartisan manner," McQueen said.
Its distinguishing feature is that it integrates relevant, state-specific election law resources using an easy-to-search topical index, said Amy McDowell, co-director of the Election Law Program at NCSC.
"When a particular section of the state code is at issue, eBenchbook content can be accessed by individual code sections," McDowell said.
The hope is that the eBenchbook will not only assist judges deciding cases today, but that it will prompt state legislatures across the country to hone state codes and improve both elections and the voting process, said Green.
"At a critical time in our democracy, the eBenchbook project marks a tremendous step forward for public access and understanding of the most important information in the United States of America: our laws and legal codes," said Seamus Kraft, executive director of The OpenGov Foundation and an advisor on the eBenchbook project.
"If we want a truly just and equitable society, election laws—and all types of legal data—must be as discoverable, comprehendible and actionable as possible, with absolutely no restrictions," he said. "That's what the eBenchbook project now delivers for the citizens and judicial officials in three key states. We look forward to supporting this great team and this important effort to bring the power of open election law to the other 47."
Is Green worried about election litigation between now and November?
"Litigation is already happening," said Green of the dozens of election cases pending in courts today. "Particularly in this highly partisan climate, continuing litigation surrounding state and federal elections up to and after the November election is a strong likelihood; the verdicts of this litigation will undoubtedly shape the future of the nation."