The Volokh Conspiracy

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What Is The Remedy For A "Substantial Departure" From Election Law?

A federal judge in Wisconsin found that there was "not a significant or material departure from legislative direction." But what if there was such a departure?


Yesterday, a federal district court judge in Wisconsin rejected  President Trump's suit against the Wisconsin Election Commission. Trump argued that guidance issued by the Commission "deviated so significantly from the requirements of Wisconsin's election statutes that the election was itself a 'failure.'" Trump asked to declare 50,000 votes as "tainted." In other words, he wanted to nullify those votes. Instead, the Court should "remand" the issue to the Wisconsin legislature. The court explained, "plaintiff wants the Court to declare the election a failure, with the results discarded, and the door thus opened for the Wisconsin Legislature to appoint Presidential Electors in some fashion other than by following the certified voting results."

The court found that the President had standing, but found that the case failed on the merits. Rick Pildes wrote a concise summary of the opinion. He wrote:

Even if A Court Were to Disagree with These Prior Conclusions, Under What Circumstances Does Election Administration Violate the Electors Clause?  Finally, the court concludes that even if the Electors Clause includes election administration, the mere fact that election officials have resolved disputed issues of statutory construction does not amount to a violation.  Instead, only "significant departures" from the election code would violate the clause.

The court suggests something of a deference doctrine. So long as the government's interpretation of the election code is reasonable, the court will defer.

Here, I want to flag an alternative hypothetical that was not present in Wisconsin. What if the President was in fact correct on the merits. In other words, what is the correct remedy if there was a "substantial departure" from the election code?

I flagged this issue last month (what feels like a lifetime ago). Local officials in Harris County allowed curbside voting for early voting. The Texas Attorney General (who has been in the news of late) determined that this practice was illegal. A complaint was filed short after early voting concluded, seeking to set aside the curbside votes. A federal district court held an emergency hearing. The judge refused to invalidate the votes, but suggested the outcome would have been different if the suit was brought before early voting began. Here, the court was uncomfortable with wiping out votes cast in reliance on facially valid government guidance.

There was a recent election in Patterson, New Jersey that was thrown out altogether. My post flagged some of the difficulties with this remedy for a statewide election as a practical matter. But I do not have an answer from a legal perspective: can a federal court ever invalidate a vote?

What circumstances would justify the invalidation of one vote, or 50,000 vote? How egregious of a violation of the law must there be? Or, if voters reasonably relied in good faith on local officials, is vote invalidation never a proper remedy? If not, then this sort of election litigation is simply a waste of time. In other words, what relief could a federal court even provide in these circumstances that would remedy the plaintiff's injury? If a federal court could invalidate a vote, what is the burden? What is the standard?

I hope we can think these issues through before the next election. In 2020, there was no need for any court to reach this issue. 2024 may not be as lucky. I suspect some red states may over-react to 2020 in the exact opposite direction.