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 judges said they didn’t know a colleague with election expertise, and urged me to invite a 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 other countries and establish a separate, specialized court system for election-related cases. A dedicated election tribunal would produce judges with the deep knowledge we need as the amount of election litigation surges here.

Why is there so little election expertise in the judiciary? Many judges went to law school before election law was a big topic. Some 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 understanding of elections. This is also 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, who is outmaneuvering judges to push any trials until after 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. Most recently, the court’s conservative majority effectively 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. Unsurprisingly, the court consistently misunderstands the basics of our electoral systems.

Take its decision overturning Colorado’s banning of Trump from its ballot because of the 14th Amendment barring insurrectionists from holding office. The justices took the nonsensical, 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. This country has no national elections. Our presidential contests are really just 50 separate state elections.

How should we address such judicial ignorance? Look to Latin America, where more than half the countries have specialized electoral courts to handle election disputes. Indeed only three countries in the Americas — Argentina, Venezuela and the U.S. — still leave elections to their regular courts.

Electoral courts are not a panacea. But as Victor Hernandez-Huerta, a Wake Forest University scholar of comparative and Latin American politics, writes in Election Law Journal, specialized courts develop expertise over time. They also protect the reputation the regular court system by shielding it from the strains of tackling controversial electoral questions.

Dedicated election judges also are accustomed to ruling under election 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 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 Semilla, on the 2023 presidential ballot when the ruling powers sought to disqualify him on dubious grounds.

The Brazilian Electoral Court proved itself in 2022 when President Jair Bolsonaro made unfounded allegations of election fraud and sought to overturn the result. The electoral judges upheld the election and held Bolsonaro accountable for “abuse of authority” by banning him from office for eight years.

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

He noted that the countries with such courts also have national elections (unlike our state-based system) and national election administrators. When I noted that the U.S. has 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.”