Newswise — Election integrity has been a regular topic of discussion in the news over the past few years. In 2020, a global pandemic and sharp uptick in mail-in voting created delivery and processing challenges, forced adaptation of the election infrastructure and fueled conspiracy theories.
Election officials have attempted to manipulate the rules after an election and defy accepted legal procedures for dispute resolution.
These forms of election subversion, or meddling with a vote counting process, threaten democratic self-governance, according to a new research paper from the University of Notre Dame. As an alternative to the development of novel tools to address the problem, the study points to a mechanism that is already available for courts to handle election subversion — the writ of mandamus.
“Election Subversion and the Writ of Mandamus,” forthcoming in the William & Mary Law Review from Notre Dame Law School Professor Derek T. Muller, is the first comprehensive piece to situate the writ of mandamus within contemporary election law disputes.
“A writ of mandamus is an order from a court telling an election official to do something,” said Muller, who specializes in election law with a focus on the role of states in the administration of federal elections and election administration. “So, if an election official refuses to certify the results of an election or tries to delay certifying the results without justification, a court can step in and quickly order the election official to certify the results.”
Muller’s paper traces the history and application of the writ of mandamus in election disputes and argues that it is uniquely situated to help courts prevent election subversion.
Muller said although election officials usually work tirelessly under the radar to deliver accurate and timely results of elections, major consequences can result if they seek to engage in election subversion — undermining public confidence in elections or preventing duly elected officials from taking office.
“In those rare and extraordinary circumstances, state courts can step into the breach and help move the process along,” Muller said. “The writ of mandamus is a particularly useful tool. It’s an old phrase borrowed from England, but it simply means that the court can order a state official to do something — like count all the ballots cast in an election or certify the winner. It’s usually a much speedier process than other ways of suing in court, and it can often be filed directly in front of the state supreme court, which allows the process to move even more quickly.
“The writ of mandamus ensures stability and reliability in our elections without trying to develop new and untested legal mechanisms to prevent election subversion. We’ve seen it used in Arizona and New Mexico in recent election disputes, and we can anticipate it being used again in 2024.”
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