The Suits That Counted: The Judicialization of Presidential Elections

Abstract

The litigation resolving the 2000 election received extensive attention, but there was also an increase in pre-election litigation in 2000, suggesting an increased reliance on courts even prior to Bush v. Gore. Did this trend of judicialization of presidential elections in the United States accelerate in 2004? To answer this question, we collect data on pre-election litigation from 1992, 1996, 2000, and 2004. Our findings show that the rate of prospective litigation increased dramatically in the 2004 election, even accounting for state and federal electoral reform from 2001–2004. Beyond the increase in raw numbers, we find that the litigation was distributed strategically based on predicted closeness of the state and the number of electoral votes at stake. We conclude with a discussion of the implications of this development.