We need a court just for elections

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

But I couldn’t find one. Election lawyers told me they knew of no such American judge. Then I called eight U.S. jurists, among them Republicans and Democrats, state and federal judges.

Seven of the eight judges said they didn’t know a colleague with election expertise, and urged me to invite the same leading election law scholar — Richard Hasen of UCLA. The eighth judge referred me to an East Coast jurist, who declined, saying: “I’m no election expert. But hey, aren’t you in L.A.? Don’t you know Rick Hasen?”

My search was more than an endorsement of Professor Hasen, whose new book “A Real Right to Vote” is worth your time. It was a lesson in just how clueless American judges are about politics and elections.

To redress that problem, the U.S. should follow the lead of Mexico and other countries, and establish a separate, specialized court system for election-related cases. A dedicated election tribunal would produce judges with the deep knowledge to deal with the surge in election litigation.

Our judiciary’s lack of expertise is why the 2024 election season is a mess.

You can see judicial cluelessness about elections in all four criminal cases against Donald Trump, as he easily outmaneuvers judges to push any trials until after the November election.

You also can see electoral ignorance, and even bias, on the U.S. Supreme Court. 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.

The Court also demonstrated cluelessness in its decision overturning Colorado’s banning of Trump from its ballot because of the 14th Amendment’s prohibition against insurrectionists holding office. Specifically, the justices took the nonsensical, up-isdown position that states should not determine who gets to be on the ballot and serve as president — even though our entire electoral system allows states to do exactly that. Our presidential contests are really just 50 separate state elections.

To redress such judicial ignorance, look to Latin America, which has a long history of contentious elections like the ones America now has. More than half of Latin American countries now have specialized electoral courts to handle election disputes. Indeed only four countries in the Americas — Argentina, Venezuela, Colombia and the U.S. — still leave elections to regular courts.

Studies show these specialized courts develop expertise over time — and protect the reputation the regular court system from the strains of tackling election controversies. They also learn how to rule under time pressure, unlike the American judges in Trump’s cases, who keep delaying to deal with unfamiliar questions. Specialized electoral courts have produced particularly important recent. In Guatemala, the country’s Supreme Electoral Tribunal kept Bernardo Arévalo, of the anti-corruption party Semilla, on the 2023 presidential ballot when the ruling elites sought to disqualify him on dubious grounds. Arévalo took office in January. The Brazilian Electoral Court proved itself in 2022 when President Jair Bolsonaro made false allegations of election fraud. The electoral judges both upheld the election and banned Bolsonaro from office for eight years.

Last spring, Hasen did speak at my Mexico conference. When I asked him recently whether the U.S. should have a specialized electoral court, he said I was “putting the cart before the horse.”

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