The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Laches and the Pennsylvania election litigation


An amicus brief was filed earlier this week in the Pennsylvania election litigation by Erwin Chemerinsky, Marin Levy, Leah Litman, Portia Pedro, and Rick Swedloff. I'm not competent to assess the Purcell-principle arguments, but the laches arguments are excellent.

Here's a key paragraph:

Laches has particular force in the context of election challenges. Indeed, laches often bars equitable relief in actions brought by tardy plaintiffs prior to the relevant election. See Navarro v. Neal, 904 F. Supp. 2d 812, 816-817 (N.D. Ill. 2012) (collecting cases); see also Stein v. Boockvar, Civ. No. 16-6287, 2020 WL 2063470, at *19 (E.D. Pa. Apr. 29, 2020). And for good reason. Plaintiffs who sleep on their rights only to bring last-minute challenges create "a situation in which any remedial order would throw the state's preparations for the election into turmoil." Nader v. Keith, 385 F.3d 729, 736 (7th Cir. 2004). By strictly applying laches in the election setting, courts properly encourage parties to litigate their claims at the earliest possible time, resulting in the least disruption to the election and, ultimately, the voters. See Richard L. Hasen, Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown, 62 Wash. & Lee L. Rev. 937, 998 (2005) ("Courts should see it as in the public interest in election law cases to aggressively apply laches so as to prevent litigants from securing options over election administration problems.").

The brief is here.