This Article explores how the Supreme Court’s recent pleading decisions in Twombly and Iqbal have impacted election litigation. It explains how Twombly and Iqbal’s “factual plausibility” standard usually does not help in an election case, because there is often little factual dispute regarding the operation of the election practice. Instead, the real question in a motion to dismiss is whether the plaintiff has stated a viable cause of action against the government defendant who is administering the election. But Twombly and Iqbal’s rule does not assist in answering this question. That is, Twombly and Iqbal are incongruent with the realities of election litigation. After recounting the history of pleading law and explaining the unique features of election lawsuits, the Article proposes a new standard for election law cases: legal plausibility. Under legal plausibility, plaintiffs must identify the specific election practice being challenged, detail how that law impacts the plaintiff particularly, and apply the elements of the cause of action to the manner in which the election regulation operates. Legal plausibility answers the question that Twombly and Iqbal leave open in an election law case: does the plaintiff actually have a valid legal claim? The standard helps courts streamline election litigation by weeding out those lawsuits that have no legal merit, allowing courts to spend more time and energy on the salient and difficult cases that require quick resolution before an election. It also harmonizes the standards for construing a motion to dismiss in an election-related lawsuit. The Article concludes by suggesting both a judicial and legislative means for adopting legal plausibility.
Joshua A. Douglas, Election Law Pleading, 81 Geo. Wash. L. Rev. 1966 (2013).