This Article was the result of a Symposium that explored the potential promises of alternative dispute resolution (“ADR”) for resolving election law disputes. Both election law and ADR scholars opined on how ADR can help to achieve various goals for deciding contentious election law cases. My focus in this essay is narrower: I suggest that employing some features of ADR to resolve election disputes can help to improve the civil discourse of our elections and our political culture. That is, certain aspects of ADR can assist in reducing caustic language in election law judicial decisions, in the media’s reporting of election disputes, and among the public overall.
In previous work, I have identified six goals we should seek to achieve in creating mechanisms for resolving election law issues: timeliness, accuracy, legitimacy, minimization of ideology, preservation of proper judicial roles (judicial economy), and signaling. This essay advances a seventh goal: greater civility in election law decisions. ADR techniques—with their foundation in cooperation and collaboration—provide one path to achieving that end.
Part I reviews the way in which courts both reflect and contribute to charged discourse when rendering election law decisions. I examine examples from recent election law cases to show that courts are not immune from—and may even contribute to—the acerbic political climate of our culture. Part II examines ADR’s general framework, discussing how ADR leads to better relations between parties as they work together to fashion a reasonable solution. Part III suggests that incorporating concepts from ADR into the election law world can help to reduce negative court language and therefore improve political discourse.
Joshua A. Douglas, Election Law and Civil Discourse: The Promise of ADR, 27 Ohio St. J. on Disp. Resol. 291 (2012).