David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
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In 2008, for the first time, advocates sought to preemptively litigate the harm wrought by excessive lines at the polls, before they materialized. This Article examines the development of pre-election litigation to remedy an excessive wait, and finds much in the approach to inform the standards for guiding litigation to confront election day burdens more generally. It first explores the burdens that excessively long lines may impose, and then reviews past attempts to address those burdens, including those of the 2008 cycle. It then analyzes the doctrinal standards applied to this litigation, including thorny jurisprudential questions involving the appropriate timing for bringing election claims, the assessment of burden, the means to measure whether the cause of that burden is tailored to state interests, the use of predictive evidence, and the means to assess the appropriate remedies for constitutional election violations. The Article concludes that the approach to the preemptive resolution of litigation over lengthy lines may prove productive for informing pre-Election Day litigation concerning many other forms of predictable Election Day burden.
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