Another court decided another election when the Minnesota Supreme Court decided the Coleman-Franken election. I lament. Ever since Bush v. Gore in 2000, it seems that every close election involves a trip to the courthouse. Generally speaking, I think courts should be very reluctant to get into the election deciding business.
Don’t get me wrong, state supreme courts should not shrink from their constitutional duty to ensure a fair, legal, and constitutional election process. But it is the process that courts are uniquely qualified to review, not the counting of individual ballots. “One person, one vote,” and gerrymandering cases are good examples of appropriate judicial involvement in the election process. But in those types of cases, the court decides whether or not the process passes constitutional muster; if it does not, the whole mess goes back to the legislative branch which must try again.
There are three reasons, in my view, why courts should not be involved in the supervision of vote counting or other urgent election disputes. First, we are geared to a slow deliberative process based upon the adversarial system. Proper judicial decision making requires notice and an opportunity for all interested parties to be heard. A fact finding or trial is usually required at which level we engage in discovery, evidentiary hearings, and either a judge or jury decides any disputed facts. At the appellate level, we must be thoughtful and deliberate to ensure a proper resolution of the case before us and to set the right precedent for future cases. But increasingly, the trend is to seek temporary restraining orders to either prevent or decide issues of constitutional magnitude, often before the election has taken place. See Wash. State Republican Party v. King County, 153 Wn.2d 220, 103 P.3d 725 (2004); Maleng v. King County Corr. Guild, 150 Wn.2d 325, 76 P.3d 727 (2003) (pre-election challenge to initiative to change the size of a county counsel); Philadelphia II v. Gregoire, 128 Wn.2d 707, 911 P.2d 389 (1996) (challenge to former presidential candidate Mike Gravel’s direct democracy initiative). In each of these cases, we were asked to rush to judgment because ballots needed to be printed or other electoral decisions needed to be made within days. Another example of urgency was that grim fall of 2004 when the Washington Supreme Court was presented three cases within about two weeks involving the Gregoire-Rossi gubernatorial election. The parties clamored for an immediate decision because the election of the state’s governor hung in the balance. It took the Minnesota courts eight months to decide the Coleman-Franken race and that was on an accelerated basis.
The second reason for courts to be reluctant to get involved in election cases is based upon the doctrine of separation of powers. I have discussed this doctrine before in this blog. Generally speaking, the legislative branch legislates, the executive branch executes that legislation, and the judicial branch resolves any debates on how to interpret that legislation. Washington’s election laws are comprehensive and old; they were adopted by the legislature and mostly predate 1929. Right or wrong, they tend to give a lot of discretion to the executive branch, i.e., state and county election officials on how ballots are canvassed and tallied. See Title 29A RCW available athttp://apps.leg.wa.gov/rcw. If election laws need reforming to provide greater uniformity or keep pace with electronic databases or other technological advancements, such reforms should come from the legislative branch. Any involvement of the judicial branch should be limited to determining if the revised laws meet constitutional requirements or, if necessary, to resolve disputes interpreting those laws.
The third reason that courts should not be involved in day to day election matters is that the trend will further politicize the courts. As I have said in this blog before, I am a true independent. In my view, the two major political parties are comprised of coalitions of special interest groups with inherently conflicting interests resulting in party positions driven by expediency and are often intellectually inconsistent or even intellectually dishonest. I do not understand how anyone could swallow either party line hook, line, and sinker. But even the most ardent partisan must appreciate the need for an independent judiciary. Yet further judicial dabbling in elections will simple accelerate the trend of the party faithful attempting to put more of their own on the bench regardless of merit and to the detriment of judicial independence from political partisanship.
But alas, I have said most of this before. See Wash. State Republican Party,153 Wn.2d at 226. This blog entry is only a lament because I suspect I will continue to vote against accepting review of election disputes I deem not ripe, but my colleagues will continue to be motivated by what they deem to be the pressing nature of the issues and the importance of an expedient resolution of those issues. Finally, I too recognize that our system, as imperfect as it seems, sure beats the system followed my many countries of suspicious ballot counting and riots in the streets following every election.