MEDIATION AND POST-ELECTION LITIGATION
litigate a post-election dispute. 19 Election law scholars analyzing the
effectiveness of administrative remedies point to partisanship of election
administration in most states negatively impacting the integrity of and
public's confidence in elections as serious challenges these bodies face. 20
No doubt in homage to the idea that courts should steer clear of political
disputes, 21 some state statutes require state legislatures to settle certain postelection disputes. Legislative branch involvement is typically restricted to
elections for specified offices of distinct importance, such as govemor. 22
Akin to the power conferred on Congress by Article 1, Section 5 of the U.S.
Constitution, which grants to Congress the power to judge the elections and
qualifications of its members, some states similarly grant power to state
legislatures to resolve certain election disputes. Alabama statute, for
example, mandates that its general assembly serves as a tribunal to resolve
disputes in elections for a wide range of offices.23 Likewise, Colorado state
statutes charge its general assembly with resolving contests concerning
elections of certain state officers.24
Of states that rely on the judiciary to resolve election disputes, some
have established alternative quasi-adjudicative procedures for certain election
disputes. In lllinois, for example, all election disputes are fast-tracked
19 See, e.g., R.I. GEN. LAWS§ 17-7-5(a)(11)(2011).
20 Daniel P. Tokaji, The Persistence of Partisan Election Administration, ELECTION
LAW
@
MORITZ
(Sept.
28,
2010),
http://moritz1aw.osu.edu/electionlaw/comments/index.php?ID=7645.
21 See infra notes 65-69.
22 KY. REv. STAT. ANN.§ 120.205 (LexisNexis 2011); 25 P.A. STAT. ANN. § 3312
(West 2011); S.C. CODE ANN.§ 7-1-50 (2011); V.A. CODE ANN.§ 24.03-804 (2011); W.
VA. CODE§ 3-7-2 (LexisNexis 2011).
23 ALA. CODE § 17-16-65 (2011). "The two houses of the Legislature, in joint
convention assembled, and presided over by the Speaker of the House of Representatives,
shall constitute the tribunal for the trial of all contests for the office of Governor,
Secretary of State, Auditor, Treasurer, Attorney General, Commissioner of Agriculture
and Industries, justices of the Supreme Court, or judges of the courts of appeals .... "
24 CoLO. REv. STAT. ANN §§1-11-205, 207 (West 2011). Colorado's statutory
scheme instructs that the senate president will preside over a meeting of the general
assembly at which testimony from the contestor will be heard, along with the contestee.
The parties' lawyers may then offer arguments, followed by debate among the general
assembly concluding with a vote. Steven Huefner observes that "letting majoritarian
institutions resolve questions about the majority's will in an election contest may be
appropriate." Steven F. Huefner, Remedying Election Wrongs, 44 HARV. J. ON LEGIS.
265, 321 (2007). For an argument advocating against state courts interfering with
Congress' roie in U.S. Congressional elections, see Kristen R. Lisk, The Resolution of
Contested Elections in the U.S. House of Representatives: Why State Courts Should Not
Help with the House Work, 83 N.Y.U. L. REv. 1213 (2008).
329
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