Who can file election-related lawsuits? (2020)

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If a dispute arises during an election, the usual means of resolving it is through the courts. In order for the court to rule on an election-related lawsuit, the person or group filing the lawsuit, known as a plaintiff, must have standing. The Legal Information Institute defines standing as the "capacity of a party to bring suit in court." If the court determines a plaintiff does not have standing, it will dismiss the lawsuit.

Government officials, voters, candidates, campaigns, and satellite groups have all had standing to file various election-related lawsuits. In order to have standing, they must show that some action or policy affected or will affect them negatively and that there is a way to remedy that negative effect.

Standing in election lawsuits

See also: Litigation regarding changes to election dates, procedures, and administration in response to the coronavirus (COVID-19) pandemic, 2020

Federal courts use a three-part test to determine whether a plaintiff has standing:

(1) a plaintiff must have or will suffer some defined negative effect,

(2) there must be a connection between that negative effect and the lawsuit before the court, and

(3) it must be likely that the negative effect will be remedied if the court sides with the plaintiff.

At the state level, each state determines what standing means in their respective courts. Similar to federal courts, a plaintiff typically has standing if there has been or will be some negative effect due to a policy and if there is a remedy available.

What is a negative effect?

A negative effect can take many different shapes. Below are two examples:

Negative effect: allegedly violating election law.

Example: An attorney general might have standing to sue a county clerk if he or she believes the clerk has violated an election-related law.

Negative effect: infringing on a voter's right to vote.

Standing: A voter might have standing to file a lawsuit against the state if he or she believes a change to absentee/mail-in ballot laws jeopardizes his or her ability to vote.

The following examples show how different types of plaintiffs have claimed standing in election-related lawsuits in 2020:

• Government official: In Texas v. Hollins, Attorney General Ken Paxton (R) sued Harris County Clerk Christopher Hollins (D) over Hollins' plan to send absentee/mail-in ballot request forms to all registered voters in the county. Paxton said Hollins did not have the authority to make that decision.

• Voter(s): In Key v. Cuomo, Heather Key and seven other voters registered as Democrats in New York sued Gov. Andrew Cuomo (D) over his decision to cancel the state's Democratic presidential primary. The plaintiffs said the cancellation deprived them of their right to vote for candidates who had qualified to appear on the primary ballot.

• Candidates/campaigns: In Donald J. Trump for President, Inc. v. Bullock, President Donald Trump's (R) re-election campaign sued Montana Gov. Steve Bullock (D) over Bullock's directive allowing counties to conduct the Nov. 3 general election entirely by mail. The campaign said the directive would facilitate absentee/mail-in ballot electoral fraud and dilute Montanan's votes. The plaintiff said such a dilution would harm the campaign as a participant in the general election.

• Groups: In League of Women Voters of Ohio v. LaRose, the League of Women Voters of Ohio (LOWV) sued Secretary of State Frank LaRose (R) over the length of the state's signature matching processes for absentee/mail-in ballots. LOWV said the state's processes caused the organization to divert resources in order to assist affected members.

Who doesn't have standing?

A plaintiff can lack standing if he or she does not pass the three-part test described above. As an example, if a voter in North Carolina filed a lawsuit against an absentee/mail-in ballot law in Kentucky, it is likely the court would determine the North Carolina voter does not have standing because the Kentucky absentee/mail-in ballot law does not affect the North Carolina voter.

A plaintiff can also lose standing during the course of a court case. Just because a plaintiff had standing at the start of the case does not mean he or she will have standing throughout the entire case. If this occurs, the case is said to have become moot. According to the Legal Information Institute:

“	Cases may become moot because of a change in the law, or in the status of the parties, or because of some act of one of the parties which dissolves the controversy.	”
—Legal Information Institute

Consider a voter with standing who sues his or her secretary of state over a particular election-related law. If during the course of that lawsuit that law is repealed, the voter might lose standing since the source of the negative effect no longer exists. If a court determines a case has become moot for any reason, it will dismiss the case.

One exception to mootness is a standard referred to as capable of repetition, yet evading review. According to the Legal Information Institute:

“	[I]n cases in which (1) the challenged action is too short in its duration to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again, mootness will not be found when the complained-of-conduct ends.	”
—Legal Information Institute

Elections present one common scenario where this exception might apply since they are relatively short-lived, yet occur regularly. If a lawsuit was filed over some election-related procedure, but it is not settled by the time the election takes place, a court might still determine a plaintiff has standing and continue with the lawsuit if it believes the issue might come up at a future election.

Standing in contested U.S. House and Senate elections

A contested election is one where the results are the subject of a lawsuit. Typically, contested elections occur at the state level. Each state determines who has standing to initiate a contested election. It is generally given to candidates who participated in the election in question and/or voters who voted in that election.

In addition to those state procedures, the U.S. Senate and House can also address and settle contested elections. Article I, Section 5 of the U.S. Constitution says: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." The Senate can handle contested Senate races, and the House can handle contested races in the House. Petitioning the Senate or House can occur before or after any state procedures, and the outcome supersedes any outcome at the state level.

The two chambers differ in how they determine standing and handle contested elections:

Senate: Northwestern University's Jeffery Jenkins wrote that "the Senate has avoided adopting any general rules or procedures" about its role in contested elections, treating every instance as a unique case. This means there are no established guidelines as to who has standing to request that the Senate address a contested Senate election. Historically, candidates and/or electors have standing to petition the Senate to make a determination in a contested election.

House: In the U.S. House, defeated candidates have standing, but members of the House also have the ability to contest another member's right to take the oath of office.

If either chamber makes a decision in a contested election, it is final. Neither the judicial nor the executive branch may challenge the decision.

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• Articles about potential scenarios in the 2020 election
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See also

• How will election recounts work in the 2020 elections?
• Can candidates challenge the results of the 2020 elections?
• What kinds of issues can election-related lawsuits address?

Additional reading

Legal Information Institute definitions

• "Standing," accessed Oct. 27, 2020
• "Injury," accessed Oct. 27, 2020
• "Mootness," accessed Oct. 27, 2020

Articles and analyses

• The Associated Press, "Voting-related lawsuits pepper US before Election Day"
• Brennan Center for Justice, "Voting Rights Litigation 2020"
• The Ohio State University Mortiz College of Law, "Major Pending Election Cases"
• FindLaw, "Contesting an Election"
• USLegal, "Election Contests"