Monday, November 23, 2020

A Good-Faith Exception for Unlawful Voting

by Matthew Tokson

On Saturday, eight Republican electors in Pennsylvania sued in state court, asking a judge to throw out all 2.5 million Pennsylvania mail-in votes. The plaintiffs claim that Pennsylvania’s 2019 mail-in voting law is unconstitutional because the Pennsylvania Constitution implicitly limits absentee voting to specific circumstances. Similar suits have been filed in several other jurisdictions. Rudy Giuliani’s federal suit currently on appeal seeks to invalidate all 6.8 million Pennsylvania votes based on an alleged Equal Protection Clause violation. And a rejected Texas lawsuit sought to throw out 100,000 votes cast at drive-thru polling stations, claiming that such voting violated Texas law. 

Set aside laches and the profound weaknesses of the merits claims in these suits. Assume that the challenged elections provisions—and the votes cast under them—were unlawful. How should a court think about voter reliance on existing law and the appropriate remedy for when unlawful votes are cast?

The exclusion of evidence in the Fourth Amendment context may provide an analogy. 

In Fourth Amendment law, not every constitutional violation gives rise to a remedy. Rather, when police officers have acted in good faith to comply with existing law, the evidence they have unlawfully obtained is admitted, notwithstanding the constitutional violation. As Chief Justice Roberts wrote in Herring v. United States, exclusion of evidence is based on “the culpability of the law enforcement conduct.” And exclusion is primarily directed at “intentional conduct that was patently unconstitutional.”

The remedial principles that apply to illegal searches should apply to illegal votes. Courts addressing lawsuits that seek to discard completed ballots should make clear that unlawful votes cast in good faith reliance on existing law will be counted regardless of the court’s decision on the merits. The Court’s Fourth Amendment precedents require a cautious assessment of the costs and benefits of a constitutional remedy. In the election context, the costs of discarding good-faith unlawful votes are enormous—these ballots reflect the will of American voters—and the benefits (incentivizing more careful drafting by legislatures, perhaps) are minor. Courts can clarify the law going forward without wreaking havoc on existing elections. And a good-faith principle would be a powerful deterrent against frivolous lawsuits seeking to delay vote certification or cast doubt on clear election outcomes. An explicit good-faith exception for voters could protect our increasingly fragile democracy—and save courts from having to deal with a flood of post-election lawsuits.