MEDIATION AND POST-ELECTION LITIGATION exponentially increasing numbers, parties use courts to resolve election disputes of all kinds. 54 This article argues, however, that there are some very real drawbacks to litigating post-election disputes. Post-election disputes arise most commonly when the vote tallies are close enough that the loser thinks he or she might win if the votes were recounted or otherwise challenged. When an election produces a clear winner, voters and candidates are often disinclined to mount a dispute.5S Election irregularities and inconsistencies and gaps in state election statutes often go completely unnoticed for the simple reason that the tally did not approach the "margin oflitigation."56 When elections are close, a rush to court is common-indeed, many state election statutes mandate that post-election disputes such as recounts be resolved in court. 57 Heading to court fulfills several needs. In the case of a candidate calling for a recount, litigation signals that the losing candidate will not give in; it provides publicity for a candidate who believes the election outcome is unjust; and finally it is a means of reaching out to a neutral party to declare judgment with (relative) finality. Although, as noted above, many states mandate administrative and/or quasi-judicial procedures to fill the vacancy); Lockard v. Miles, 882 N.E.2d 288, 288-89 (Ind. 2008) (affirming that the winner of a party caucus held after the candidate who won the primary died should be on the general ballot instead of the runner-up in the primary); Evans v. State Election Bd. of the State of Oklahoma, 804 P.2d 1125, 1126-27, 1129, 1131 (Okla. 1990) (determining that the candidate for district judge who won the most votes, though deceased, was the victor and a special election should be held to fill the vacancy). See also Faulder v. Mendocine County Bd. of Supervisors, 144 Cal. App. 4th 1362, 1366-67 (Cal. Ct. App. 2006) (calling for the cancellation and sealing of election results and the scheduling of a special election when one of the two candidates for district attorney died prior to the election). 54 Richard Hasen, The Supreme Court's Shrinking Election Law Docket, 2001-2010: A Legacy of Bush v. Gore or Fear of the Roberts Court?, UNIVERSITY OF CALIFORNIA, lR VINE SCHOOL OF LAW LEGAL STIJDIES RESEARCH PAPER SERIES PAPER No. 2011-11. 55 Relying on close elections to tell us whether a state's election apparatus is functioning is less than optimal. Problems will only be revealed if and when a close election happens. Foley, supra note 42, at 375 (in this article, Professor Foley suggests ways that states might address election irregularities without waiting for outcomeaffecting errors to come to light.). 56 Richard Hasen, Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown, 62 WASH. & LEE L. REV. 937,938 (2005). 57 See supra Part II; see, e.g., WASH. REv. CODE § 29A.68.0ll (2007) (judicial remedy when certain conditions are met, i.e., neglect of duty on part of an election official, any state voter can contest the result of an election in court); ARiz. REv. STAT. ANN.§ 16-672 (1980) (any elector can contest results); N.M. STAT. ANN. §1-14-1 (2004) (New Mexico statute allows a candidate to contest the results of an election in court). 337 HeinOnline -- 27 Ohio St. J. on Disp. Resol. 337 2012