This Article uncovers the different mechanisms states use to resolve election contests. One universal rule regarding post-election disputes is that "[t]here is no common law basis for election challenges." As the Iowa Supreme Court explained, "[t]he right to contest an election is only conferred by statute, and contestants must strictly comply with the provisions of the statute in order to confer jurisdiction. Thus, contestants are limited to the scheme provided by the legislature." An inquiry into election contests therefore entails a survey of state election statutes and constitutions. Although it is possible that parties may file in federal court and raise federal constitutional issues to challenge an election, election contests are typically the province of state law. This Article provides the first comprehensive analysis of existing state election codes regarding the procedures for election contests.
The analysis of current election contest mechanisms leads to two conclusions for moving forward. First, every state should, at a minimum, ensure that their methods for resolving election contests are tied to defined goals, such as minimizing ideological decision making, fostering timely resolution, and promoting clarity in the resolution process. Second, and most lacking under the current regimes, states should make certain that they appoint a neutral, unbiased decision maker to resolve all election contests. This Article provides several models and discusses the key considerations states should contemplate in creating an impartial election contest tribunal.
Joshua A. Douglas, Procedural Fairness in Election Contests, 88 Ind. L.J. 1 (2013).