The Procedure of Election Law in Federal Courts

The public is immensely interested in elections, never more so than when the race is close. Campaigns routinely ask the courts to construe the rules to each candidate’s advantage. Even outside the context of an actual election, federal courts decide numerous election law cases that have a profound influence on how elections are run, thus impacting the scope of our representative democracy. Whenever judges decide the constitutionality of an election provision or the reach of campaign finance limitations, the courts are shaping the meaning of political participation. But there has been little thought given to the processes by which courts decide these cases, even though these procedures have a significant impact on the litigation. By tying the particulars of a special election law process to the goals we should strive to seek in enacting a procedure—such as through meritsbased direct en banc review—we can better arm the courts with the tools for fairly and efficiently deciding election law cases.