Administrative pathways to electoral justice: a summary

Chad Vickery, Katherine Ellena, and Rebecca Green

The problem

Since Bush v. Gore, U.S. courts have faced a sustained and growing volume of election litigation, covering everything from ballot access and voter-list maintenance to polling places, recounts and post-election contests. Over the same period, public confidence in election institutions has fallen. Distrust is no longer confined to the losing side: people across the political spectrum now doubt both the process and the ability of courts to deliver justice, which puts the legitimacy and independence of the judiciary itself under strain.

Federal law already points to another path. The Help America Vote Act requires every state to run an administrative complaint process for claims under its Title III, which covers some of the most heavily litigated issues: voting equipment, list maintenance, absentee voting and accessibility. But the federal mandate is bare-boned, and state practice varies widely. Only four states open the process to complaints under any state election law. Only six post accessible records of their complaints online. Only thirteen expressly provide for judicial review of the outcome, and three bar it. The federal timeline, 90 days for a decision and then 60 days of alternative dispute resolution, is not tied to the election calendar.

What comparative experience shows

Across very different legal traditions, democracies have converged on a hybrid model. Election management bodies and other administrative institutions handle first-instance complaints quickly and with technical expertise. Courts act as the final arbiters of high-stakes questions of rights, results and constitutional guarantees. Some countries add informal layers such as mediation. These systems are far from flawless: many struggle with politicization, compressed timelines and uneven transparency. The aim is not to import them wholesale, but to learn valuable lessons from them.

Five design principles

1. Scope, timing and sequencing. Decide which disputes go to the administrative track, in what order, and how fast, with deadlines that fit the election calendar.
2. Low procedural barriers and tailored evidence rules. Make it simple to file, and give complainants practical access to election records without having to sue.
3. Informed adjudication with impartiality safeguards. Use election expertise while building in independence. New Hampshire’s bipartisan Ballot Law Commission is one example of doing both.
4. Transparency and public engagement. Tell the public that the process exists, and publish decisions and reasons in plain language.
5. Judicial review. Keep courts as a backstop, with judicial review and appeals calibrated so that legal finality is not lost within tight election timelines.

What it means for U.S. states

The authors conclude that the question for the United States is not whether to build administrative dispute resolution into its elections, but how. Administrative bodies with clear triage procedures, election-specific investigative standards, proportionate remedies and strong guarantees of independence are better placed than generalist courts to handle large numbers of technical disputes on short timelines while preserving due process. Courts remain essential guardians of the rule of law, and they can do that job better by reviewing a well-developed administrative record than by investigating every claim from the start.

← All Insights