Users of a different kind of gavel have been busy setting rules for voters and election administrators in 2014. Courts, and not legislatures, have been the major force shaping state election laws this year, with some key rulings landing just days before voters headed to the polling places. And it’s not just district circuit justices who have been asked to rule on litigation about photo ID requirements for voters, early voting and same-day voter registration. Several notable rulings from the U.S. Supreme Court this year have addressed how elections are run. And some of those decisions from the U.S. Supreme Court have hardly settled election matters. The brief court orders in a few October cases— often two sentences— have addressed simply the timing of changes to the elections process; these cases are still to be decided on their merits by the courts with jurisdiction.
A forecast for further election litigation is now part of the conventional wisdom as states and the federal government address changes brought about by laws passed along partisan lines and by the 2013 Supreme Court ruling that stripped major provisions of the Voting Rights Act.
“I think courts and judges would like nothing better than for election litigation to dissipate,” said Rebecca Green, co-director of the Election Law Program at William & Mary Law School. “But because our election system is decentralized and because election litigation tends to spike only when races are tight, it is very difficult to stem the flow of election litigation in our current climate.”