The problem with American elections: too many election lawyers

Give someone a hammer, and the whole world will look like a nail to him.

This adage applies increasingly to the field of election law — especially to lawyers who have come to specialize in it and all the litigation that now surrounds campaigns and elections in America. 

Train more individuals in election law and one will have more election controversies and lawsuits.

In the early 1990s, the field of election law did not exist. Dan Lowenstein, a professor of law at UCLA, produced the first textbook on election law.  It is now in its seventh edition and joined by other election law textbooks. 

Lowenstein, along with a handful of other legal scholars, taught election law in law school. But election law was esoteric and not a field of specialty for many. 

Certainly, lawyers were hired to represent individuals who might be running for office, to help them with filings, navigating campaign finance or other routine matters surrounding elections. A lawyer might also be employed to help oversee what few legal challenges there were after an election if a recount was needed. Election law and lawyering were marginal pursuits.

But the real transformation in election law came in 2000 with Bush v Gore, which many said was ultimately decided by the Supreme Court when the two presidential candidates slugged out the counting of ballots in Florida in court. Prior to Bush v. Gore, in 1996 there were 108 election challenge cases, by 2020 there were 424.

Election law, as a field, came into its heyday in 2000 and since then, we have seen the dramatic growth of litigation, both before elections and afterward. Driving this growth in part is the teaching of election law in law school. More and more professors are teaching it, producing more and more election lawyers. 

When all else fails, what do lawyers do as zealous for their clients?: They sue.

And so much of the litigation is driven by too much scholarship by professors, often advocating esoteric ideas in pursuit of promotion, tenure and status. 

Over the years, these esoteric ideas and the election law cottage industry have propagated lawsuits leading to the dismantling of campaign finance laws in America and the equivocation of money with speech. It has perpetrated the belief in voter fraud and stolen elections. Or, in the case of Professor John Eastman, a discredited-from-the-start theory that the vice president could reject electoral votes when they counted. 

As we saw in 2020, incessant yet genuinely unsuccessful and frivolous lawsuits to upend a free and fair election helped sow doubt to debunked claims that millions of votes were falsely cast or manufactured.

According to a Democracy Docket newsletter, already in 2024, we have seen well over 200 lawsuits brought before the election. Harris and Trump are lawyering up. Lawsuits, either challenging efforts to restrict voting rights or seeking to prevent such laws, are the source of many suits, as are ones directed at election administration or the counting of ballots. 

It could get ugly. Consensus on establishing fair election law rules and procedures for letting the voters and not judges decide campaign outcomes is fueled and enabled by lawyers.

Among the unintended consequences of creating the field of election law has been the propelling of this increased litigation. Perhaps, according to another adage, too many election lawyers are spoiling the election broth.

David Schultz is Hamline University distinguished professor of Political Science and Legal Studies and an adjunct professor of law at the University of St. Thomas.