Emily Becker '27
Staff Editor
The election is over. Now what? The race of a century may have reached a resounding conclusion, but as we saw post-2016 and 2020, the presidential election will undoubtedly spur a burst of local political involvement in the many off-year elections that remain. In 2023, twenty-nine major cities held mayoral elections.[1] We have town council, state judiciary, sheriff, and state attorney general battles to focus on. In my hometown, for example, the school board elections are more hotly contested and socially divisive than the mayoral race.
Headline cases tend to revolve around the presidential election: President-elect Trump’s sixty-two lawsuits in the wake of his 2020 loss, RFK Jr.’s battle to remove himself from Michigan ballots, the DOJ voter purge case in Virginia. But election procedures impact all elections, and all elections have the potential to generate litigation. In fact, local elections stand to generate a particularly interesting set of cases, seeing as they may not always be subject to federal election rules. The Virginia DOJ voter purge case, for instance, arose out of National Voter Registration Act (NVRA) claims. The NVRA only applies to federal elections, though.[2] States have a great deal of discretion in defining election rules and enforcement. With a Supreme Court that places a great premium on states’ rights, upcoming local election litigation may face some serious obstacles in proving any unconstitutionality, thus potentially constraining such litigation to sub-constitutional questions governed by local statutes.
A recent case out of Texas can teach us a little about what we may expect in the upcoming election “off” years. In November 2022, Loving County, Texas held its election for County and District Clerk, Justice of the Peace, and County Commissioner. The Justice of the Peace candidates tied with thirty-nine votes each, and the Clerk and Commissioner victors received forty-six and twelve votes, respectively. For all intents and purposes, this was a strong turnout: 72.48 percent of registered voters.[3] So, yes, Loving County is incredibly small (the smallest county in Texas),[4] and it is perhaps a dramatic example. But because the margins in question were so thin, the lawsuit[5] that arose out of the election led to a strikingly thorough consideration of granular evidence by the court, since a ruling on a dozen voters’ eligibility could (and in fact did) cause the court to order a new election.
In August 2024, the losing candidates from the 2022 election filed a lawsuit against the victors alleging both voting by ineligible voters and disenfranchisement of eligible voters. The trial court ruled that ten votes had been cast illegally and subtracted them from the totals. Only one of the candidates, the District and County Clerk, had won by more than ten votes, resulting in the court’s ordering a new election for Justice of the Peace and County Commissioner. Both the unsuccessful candidates and the victors appealed, with the plaintiffs reiterating claims of illegal voting and disenfranchisement, and the defendants alleging unconstitutionality of the Texas Election Code’s residency requirements.
The appellate court affirmed the trial court’s finding of ten illegal votes, predicated upon the Texas Election Code’s residency requirements. The court declined to consider the defendant’s constitutional challenges, choosing instead to resolve the dispute under other unchallenged provisions of the election code—a decision vehemently protested by the dissent. The court did, however, deviate from the trial court in finding merit in the plaintiffs’ disenfranchisement claim. Two voters had moved to Loving County in the months preceding the election. They had each registered according to standard Texas procedure, though they ultimately realized they were left off the local voter roll when they tried to vote. One of the individuals attempted to vote early. Instead of being given a normal ballot, he was given what Texas refers to as a limited ballot, which allowed him to vote only in those elections for which he would have been eligible had he retained his residence in the county where he lived prior. As a result, he was not allowed to vote in the three contested Loving County elections. The second individual attempted to vote on election day and was given a provisional ballot with the three local elections struck through, amounting to a makeshift limited ballot. The appellate court ruled that these properly registered voters had been improperly barred from voting. Since the County Clerk candidate had only won by twelve votes, the court ordered a new election.
Limited ballots appear to be a Texas idiosyncrasy, according to my research. They are designed to allow people to vote in the statewide elections in their prior county of residence if they will not be registered in their new county in time.[6] What happened in this case, however, was that limited ballots were improperly used for registered voters whose names simply had not been added to voter rolls. Limited ballots are not even supposed to be used on election day. It took almost two years for this error to come to light, and for a blatant violation of the Election Code to be adjudicated.
There is certainly a debate to be had over the merits of the limited ballot rule. On the one hand, it could incentivize those people who might not want to vote because they moved near in time to the election, to vote. On the other hand, it could discourage people from getting involved in local politics, since they would neither vote in the local elections in their prior county nor in their new county. What is clear from this case, though, is that idiosyncratic rules like this one have the potential to do substantial or even irreparable harm to election results. Of course, this case was extreme because of the incredibly low population. But is it so hard to imagine a couple of larger precincts using a similar methodology? Is it so difficult to think that other states may have equally esoteric election codes that lead to comparable errors? Virginia’s smallest county has a population of 2,339.[7] Is it so far-fetched to think that something akin to the Loving County case could play out there? I think not.
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ejb6zt@virginia.edu
[1] https://ballotpedia.org/Partisanship_in_United_States_municipal_elections_(2023).
[2] https://www.justice.gov/crt/national-voter-registration-act-1993-nvra.
[3] https://www.sos.texas.gov/elections/historical/loving.shtml.
[4] https://www.texasstandard.org/stories/loving-county-tx-elections-overturned-illegal-votes/.
[5] Medlin v. King, 2024 WL 3845970.
[6] https://www.sos.state.tx.us/elections/laws/limited-ballot-voters-and-district-chart.shtml.
[7] https://www.virginia-demographics.com/counties_by_population.