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.


  1. I like the reasoning of your comment. Agree with the analogous approach. However, felt apprehension when I read you citing CJ Roberts. As I recall in 'June Medical' his concurrence, upholding on stare decisis, rejected the balancing approach; reducing the review to undue burden. I am concerned that 'balancing', as to constitutional rights, is not part of his outlook.

  2. "Yes, absolutely, I do indeed concur wholeheartedly!"

    The above, combined with a relatively generous view of standing, should allow parties to bring merits-based lawsuits BEFORE an election to prevent misconduct (including immediately following the previous election) while avoiding gamesmanship in the form of trying to get good-faith votes invalidated due to technicalities.

    This isn't to say that votes that are clearly fraudulent, or are very likely to be, should not be invalidated; however, votes should not be invalidated when both election officials and especially voters made good-faith efforts to follow the law.

  3. The problem here is consistency. One can argue that Good Faith votes should count even if technically invalid. But the same PA courts that take this position regularly strike parties from the ballot for extremely technical lapses, including dates out of order on a petition, incomplete addresses, and so forth. Granted,, votes and nominating petitions are not the same. But there is a sense of selectivity, particularly in a state with elected and, to be truthful, not especially talented judges. It leaves a bad taste all around.

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