America’s Judges Are Bungling the 2024 Election

Does Our Democracy Need a Separate Court System?

America’s Judges Are Bungling the 2024 Election | Zocalo Public Square • Arizona State University • Smithsonian

The United States needs a specialized electoral court, like what many Latin American countries have, to handle election cases, argues columnist Joe Mathews. Image courtesy of Pixabay

Last year, while organizing a global democracy forum in Mexico, a member of that country’s national electoral court requested I add a speaker to our program: an American judge who was an expert in how elections work.

First, I contacted election lawyers, who told me they knew of no judges with such expertise. Then I called judges, eight leading U.S. jurists in all. Among this diverse group of judges were Republicans and Democrats, those who work at the state level and the federal level, in district courts and appellate courts.

Seven of the eight judges said they didn’t know of any U.S. judge who was an expert in elections either. They suggested that I instead invite a leading scholar of American election law—Richard Hasen of UCLA School of Law.

The eighth judge suggested I try a friend and judge on the East Coast who had handled some election cases. When I called up this jurist, he replied: “I’m no election expert. But hey, aren’t you in L.A.? Don’t you know Rick Hasen?”

My search turned out to be an endorsement of the brilliant Professor Hasen, whose new book A Real Right to Vote is well worth your time. But it was more than that, too. It was a lesson in just how clueless American judges are about politics and elections.

To redress that problem, California and the U.S. should follow the lead of other countries in the Western hemisphere and establish a separate, specialized court system for handling all election-related cases.

A dedicated election tribunal would produce judges with the deep knowledge that is increasingly essential as politically polarized Americans contest elections more frequently in the courts. Indeed, one prominent law scholar—yep, Hasen—has documented that election litigation nearly tripled since the 1990s.

But, as my search showed, election law expertise is hard to come by. That’s partly because most judges went to law school when the issue was not such a big concern, and partly because judges, seeking to avoid politics, rarely come to understand it on the job.

This means, unfortunately, that American elections are shaped by a judiciary with little knowledge of, or feel for, electoral politics. And it is precisely why the 2024 election season is a mess.

You can see judicial cluelessness about elections at work in all four ongoing criminal cases against Donald Trump. The former president and his savvy team have made mincemeat of judges, attacking them to score points with the Republican base and outmaneuvering them to create so many delays that it’s unlikely any case will go to trial before the November election.

A specialized court for elections also could save the U.S. Supreme Court from itself. The court’s justices are losing credibility because of perceived political bias in their decisions and public appearances. Most recently, the court’s conservative majority all but endorsed Trump’s delay strategy by agreeing to hear the former president’s plainly phony claim that former presidents are “absolutely” immune from this country’s laws.

But the Supreme Court’s bigger problem is that it is a citadel of election ignorance. Not one justice has ever been elected to political office, much less administered an election. No justice has a strong scholarly background in election law. Unsurprisingly, then, in their decisions, the Court consistently misunderstands the basics of our political and electoral systems.

Take its recent decision overturning Colorado’s move to ban Trump from the ballot because of his actions to overturn the 2020 election by corruption and violence. The decision was unanimous but also egregious. The justices both misread the plain text of the 14th Amendment, which bars insurrectionists from office and failed to understand basic democratic principles.

They took the bizarre, up-is-down position that states should not get to determine who gets to be on the ballot and serve as president—even though our entire electoral system is state-based. There are no national elections in this country; our presidential contests are really just 50 separate state elections.

It should frighten us that these nine democracy dimwits may well decide the outcome of a presidential election that promises to be close.

Many countries around the world have moved to redress this problem of judges’ lack of expertise and sophistication in contentious elections. Latin America, which has a long history of bitterly contested elections like the one we in the U.S. are experiencing now, has led the charge in trying to develop more judicial expertise and independence on election cases.

More than half of Latin American countries have established specialized electoral courts to handle election disputes. By now only three countries in the Americas—Argentina, Venezuela, and the U.S.—still give the decision-making power to their regular Supreme Court.

It should frighten us that these nine democracy dimwits may well decide the outcome of a presidential election that promises to be close.

The electoral courts are not a panacea. Mexico’s has been dogged recently by internal conflict between its justices. But as Victor Hernández-Huerta, a Wake Forest University scholar of comparative and Latin American politics, writes in Election Law Journal, specialized courts develop expertise over time. And they have numerous benefits. Separate election courts can protect the reputation and independence of the regular court system by shielding it from the stains and strains of tackling controversial electoral questions.

Dedicated election judges also are accustomed to ruling quickly and efficiently under election time pressure, unlike the American judges in Trump’s cases, who keep delaying things to deal with unfamiliar questions.

Specialized electoral courts have produced particularly important successes when candidates or parties sought to overturn election results.

In Guatemala, in the face of threats of retaliation and prosecution, the country’s Supreme Electoral Tribunal intervened to keep Bernardo Arévalo, of the anti-corruption party Movimiento Semilla, on the 2023 presidential ballot when the ruling powers sought to disqualify him on dubious grounds. As a result, Arévalo won the election and managed to take office in January despite attempts at sabotage.

The Brazilian Electoral Court—a system that includes the national Tribunal Superior Eleitoral, along with regional electoral courts and boards—is widely considered the world’s best, because of its structural independence and its record. The court proved its mettle in 2022 when President Jair Bolsonaro made unfounded allegations of election fraud and sought to overturn the result. The electoral judges not only upheld the election but also held Bolsonaro accountable for “abuse of authority” by banning him from running for public office for eight years.

Last spring, I ended up taking all that judicial advice about Hasen and having him speak at the Mexico conference about how courts handle tricky questions of democracy. When I caught up with him recently, I asked whether he agreed with me that the U.S. needs its own separate electoral court. He said that I was “putting the cart before the horse.”

He pointed out that the countries with such courts also have national elections (unlike our state-based system) and national election administrative bodies. When I noted that the U.S. judicial branch does have special judges and courts on bankruptcy and immigration, Hasen pointed out that each of those areas has a federal body of law associated with it. That’s not yet true of elections.

“You’re asking me a graduate-level question,” he said of the idea of a specialized electoral court, “when we’re not even in kindergarten yet.”


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