Election Subversion and the Writ of Mandamus

William & Mary Law Review William & Mary Law Review

Volume

65 (2023-2024)

Issue 2

Article 3

11-2023

Election Subversion and the Writ of Mandamus Election Subversion and the Writ of Mandamus

Derek T. Muller

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Election Subversion and the Writ of Mandamus

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ELECTION SUBVERSION AND THE WRIT OF MANDAMUS

DEREK T. MULLER

ABSTRACT

Election subversion threatens democratic self-governance. Recent-

ly, we have seen election officials try to manipulate the rules after an

election, defy accepted legal procedures for dispute resolution, and try

to delay results or hand an election to a losing candidate. Such

actions, if successful, would render the right to vote illusory. These

threats call for a response. But rather than recommend the develop-

ment of novel tools to address the problem, this Article argues that a

readily available mechanism is at hand for courts to address election

subversion: the writ of mandamus. This Article is the first compre-

hensive piece to situate the writ of mandamus within contemporary

election law disputes.

This Article traces the history and application of the writ of

mandamus in election disputes and posits that it is uniquely situated

to help courts prevent election subversion. Federal and state laws

delineate clear and mandatory responsibilities for election officials

after votes have been cast in an election. Congress’s recently-enacted

Electoral Count Reform Act strengthens the legal obligations placed

upon election officials in presidential elections in particular. Courts

* Professor of Law, University of Notre Dame Law School. I am indebted to faculty who

shared such helpful feedback in workshop presentations at the University of Iowa, the

University of Notre Dame, the Ohio State University, William & Mary, and the University

of Wisconsin. Special thanks to comments from A.J. Bellia, Alex Boni-Saenz, Sam Bray, Emily

Bremer, Aaron Bruhl, Christian Burset, Aaron Caplan, Cinnamon Carlarne, Paolo Carozza,

Emily Cauble, Bryan Choi, Derek Clinger, Patrick Corrigan, Katherine Mims Crocker, Diane

Desierto, Mihailis Diamantis, Ned Foley, César García Hernández, Nicole Garnett, Rebecca

Green, Sean Hill, Steve Huefner, Andrew Jordan, Heinz Klug, Allison Orr Larsen, Maria

Maciá, Lisa Marshall Manheim, Chris Odinet, John Ohnesorge, Jason Rantanen, Paul Rose,

Miriam Seifter, Susannah Tahk, Jay Tidmarsh, David Waddilove, Rob Yablon, and others.

William Jordan provided valuable research assistance.

327

328 WILLIAM & MARY LAW REVIEW [Vol. 65:327

can order state election officials to certify election results and to

transmit those results to victorious candidates or the appropriate

branch of government. If election officials refuse, courts can proceed

to alternative mechanisms of enforcing the judgment, including

expeditiously directing another actor to perform the appropriate

election administration tasks. Mandamus is particularly valuable—

more valuable than ordinary injunctive relief—because of the

original jurisdiction in many state supreme courts to handle these

disputes, which avoids the delay of a layered appellate process. This

Article demonstrates the value of the existing remedy of mandamus

to avoid election subversion. It then suggests ways that states

strengthen the law around mandamus to ensure that election admin-

istration occurs in a timely and effective manner.

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 329

ABLE OF CONTENTS

INTRODUCTION ...................................... 330

THE WRIT OF MANDAMUS ............................ 334

A. The Origins of Mandamus ........................ 334

B. Early American Use of Mandamus.................. 337

C. Contemporary Doctrine ........................... 340

II.

MANDAMUS IN ELECTION DISPUTES .................... 344

A. Certifying Petitions .............................. 345

B. Canvassing Votes ................................ 346

C. Certifying Winners............................... 347

D. Availability and Timing of Relief ................... 348

III.

DEFYING MANDAMUS .............................. 349

A. Judicial Mechanisms to Ensure Compliance with

Mandamus ..................................... 350

B. Limitations on Discretion for Election Officials........ 353

IV.

LEGAL DUTIES CREATED BY CONGRESS................. 356

A. Federal Obligations in Congressional Elections........ 357

B. Federal Obligations in Presidential Elections ......... 359

THE UNIQUE STRENGTHS OF MANDAMUS ................ 365

A. Original Jurisdiction in State Supreme Courts ........ 366

B. Streamlined Hearings and Legal Elements ........... 369

VI.

THE POTENTIAL LIMITATIONS OF MANDAMUS............ 374

A. Potential Limitations Against the Governor........... 374

B. Potential Incentives for Grandstanding .............. 376

C. Restricted to Discretionary Acts .................... 377

D. Dependent on Reliable State Courts ................. 378

VII.

STRENGTHENING MANDAMUS ....................... 380

A. Reducing Election Officials’ Discretion............... 381

B. Directing Another Official to Perform Ministerial

Tasks .......................................... 382

C. Ensuring State Supreme Courts’ Original

Jurisdiction ..................................... 386

ONCLUSION ........................................ 387

330 WILLIAM & MARY LAW REVIEW [Vol. 65:327

NTRODUCTION

Extraordinary events marked the 2020 election in the United

States. A global pandemic required adaptation of our election

infrastructure, which meant late-breaking changes to election

administration.

A sharp uptick in mail-in voting created challenges

for postal delivery and for how states processed ballots.

And at the

end, conspiracy theories sowed by public officials fueled a riot at the

United States Capitol during the typically mundane counting of

presidential electoral votes.

Losing candidates have cast doubt on the certified results of

elections in recent years, including in presidential elections. But

2020 saw that doubt rise to new heights and pervade ensuing

political campaigns. Political candidates who would hold supervi-

sory authority over elections have suggested they would have

rejected 2020 election results, an implicit pledge that they may

use—and abuse—their offices to undermine future election results.

It is unsurprising, then, that “election subversion” is a matter of

great concern. Election subversion is, in the words of Professor Lisa

Marshall Manheim, a term used frequently but “rarely [is it]

defined.”

Professor Richard L. Hasen describes election subversion

as a form of “sabotage by election officials, leading to an election

1. Drew Desilver, Turnout Soared in 2020 as Nearly Two-thirds of Eligible U.S. Voters

Cast Ballots for President, P

EW RSCH. CTR. (Jan. 28, 2021), https://www.pewresearch.org/

short-reads/2021/01/28/turnout-soared-in-2020-as-nearly-two-thirds-of-eligible-u-s-voters-cast-

ballots-for-president/ [https://perma.cc/2PY8-TQYA].

2. See Richard H. Pildes, Election Law in an Age of Distrust, 74 S

TAN. L. REV. ONLINE

100, 107 (2022).

3. See Dan Balz, Scott Clement & Emily Guskin, Republicans and Democrats Divided

Over Jan. 6 Insurrection and Trump’s Culpability, Post-UMD Poll Finds, W

ASH. POST (Jan.

1, 2022, 6:00 PM), https://www.washingtonpost.com/politics/2022/01/01/post-poll-january-6/

[https://perma.cc/84S9-HF89].

4. See, e.g., Emma Hurt, Trump-backed Perdue Says He Wouldn’t Have Certified Georgia

2020 Results, A

XIOS (Dec. 8, 2021), https://www.axios.com/2021/12/08/david-perdue-georgia-

2020-election-certification [https://perma.cc/5KJV-G5ES] (quoting Georgia Secretary of State

candidate and former Senator David Perdue on the 2020 election, “and I wouldn’t have signed

it until those things had been investigated, and that’s all we were asking for”); Kari Lake

(@KariLake), T

WITTER (Apr. 3, 2022, 3:32 PM), https://twitter.com/KariLake/status/15107018

61371666433 [https://perma.cc/X5WQ-Y2Y8] (“Decertify Wisconsin now. And Arizona!”).

5. Lisa Marshall Manheim, Election Law and Election Subversion, 132 Y

ALE L.J.F. 312,

322 (2022).

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 331

loser being declared the election winner.”

Professor Manheim

defines it as “the exploitation of a breakdown in the rule of law to

install a candidate into elected office.”

Professor Rick Pildes iden-

tifies the risks in the states of partisan manipulation of vote totals

or the refusal to certify election results as potential “election

subversion.”

These definitions focus on four hallmarks: (1) post-

election actions (2) by election officials (3) to defy the accepted legal

procedures for resolving election disputes (4) to benefit the candi-

date who lost (by overturning the results and making that candidate

the winner, or by refusing to acknowledge the winning candidate).

6. Richard L. Hasen, Identifying and Minimizing the Risk of Election Subversion and

Stolen Elections in the Contemporary United States, 135 H

ARV. L. REV. F. 265, 265 (2022)

(footnote omitted).

7. Manheim, supra note 5, at 322.

8. Richard Pildes, Election Subversion and Electoral Count Act Reform, J

UST SECURITY

(Feb. 2, 2022), https://www.justsecurity.org/80059/election-subversion-and-electoral-count-act-

reform/ [https://perma.cc/WQP7-EXV4].

9. See Franita Tolson, Parchment Rights, 135 H

ARV. L. REV. F. 525, 536 (2022) (ex-

pressing concern over “manipulation” of election rules “on the back end” that render voting

rights a “mere parchment barrier”). Others have used the term “election subversion” more

broadly to include actions that more generally undermine confidence in elections. See, e.g.,

Jessica Bulman-Pozen & Miriam Seifter, Countering the New Election Subversion: The

Democracy Principle and the Role of State Courts, 2022 W

IS. L. REV. 1337, 1347-49 (identify-

ing “power-shifting laws” that increase partisanship in election administration, “sham audits

or investigations” that “destabilize and undermine faith in elections,” or laws that “harass and

intimidate officials” as the “new election subversion”); Will Wilder, Derek Tisler & Wendy R.

Weiser, The Election Sabotage Scheme and How Congress Can Stop It, B

RENNAN CTR. (Nov.

8, 2021), https://www.brennancenter.org/our-work/research-reports/election-sabotage-scheme-

and-how-congress-can-stop-it [https://perma.cc/56PE-FWVX] (including partisan gerryman-

dering, laws that “restrict access to voting,” and other rules among the acts identified as

“election subversion”); Jerry H. Goldfeder, Excessive Judicialization, Extralegal Interventions,

and Violent Insurrection: A Snapshot of Our 59th Presidential Election, 90 F

ORDHAM L. REV.

335, 368-70 (2021) (identifying the hamstringing of election officials, increased partisanship

in election administration, and domestic terrorism as “election subversion”). And election

officials in particular can abuse their offices before the election by engaging in unlawful

activities (admittedly, sometimes in the midst of good faith disagreements) that circumvent

legislative preferences. See, e.g., Derek T. Muller, Nonjudicial Solutions to Partisan

Gerrymandering, 62 H

OWARD L.J. 791, 807-08 (2019) (explaining how the newly-elected

Democratic Secretary of State in Michigan attempted to enter a consent decree with plaintiffs

challenging a Republican legislative gerrymander to effectively nullify the legislature’s map,

which was ultimately rejected by a federal court); Democratic Senatorial Campaign Comm.

v. Pate, 950 N.W.2d 1, 2-3 (Iowa 2020) (describing how Iowa county election officials dis-

regarded state law and mailed out absentee ballot forms with pre-filled information, which

state courts serially rejected as exceeding their authority); Promote the Vote 2022 v. Bd. of

State Canvassers, 979 N.W.2d 188, 188 (Mich. 2022) (mem.) (holding that Michigan board of

canvassers had no statutory authorization to refuse to certify a ballot initiative on its

332 WILLIAM & MARY LAW REVIEW [Vol. 65:327

This Article focuses on this particular risk: some election

administrator or board of elections may refuse to certify the results

of an election—or, worse, attempt to certify some alternative results

apart from the results that go through the ordinary canvassing and

recount process. Professor Rebecca Green acknowledges that “those

determined to undermine public confidence in U.S. elections have

a bottomless pit of options and multiple ways to hide their identity

and/or subvert detection.”

Subversion may take any number of

forms. But there are discrete legal mechanisms to address the dif-

ferent types of potential election subversion.

The increased threat of election subversion remains of recent

vintage, but the concern of election officials who ignore, defy, or

contest legal obligations is not. Election officials occasionally have

refused to perform their statutory obligations.

The judiciary, how-

ever, is not powerless in such scenarios. The writ of mandamus has

been used in a wide variety of contexts to compel election officials to

do their job.

This Article identifies the important place that the

writ of mandamus has as a remedy to prevent election subversion.

This Article opens with a descriptive account of mandamus.

Mandamus remains underexplored as a particular mechanism for

resolving election disputes, and this Article offers an examination

of mandamus. It walks through the salient features of mandamus

and its application in the states in election disputes. This discourse

helps position mandamus as a routine and preexisting remedy

available to resist certain kinds of election subversion.

This Article then identifies the unique value mandamus offers in

reducing, and preventing, election subversion. Mandamus is widely

available in election disputes and offers a remedy even in cases

where election officials are stubborn and recalcitrant.

Congress

also has the power to place a duty on election officials to certify

substance). The legislature itself may choose to engage in the counting of ballots or other

conduct that could rise to the level of election subversion. See E

DWARD B. FOLEY, BALLOT

BATTLES 259-67 (2016) (describing the “Bloody Eighth,” a 1985 episode in which Congress

recounted the ballots in a contested Indiana election with charges that partisans were

“manipulating the ballot-counting rules midstream to achieve the desired result”).

10. Rebecca Green, Election Surveillance, 57 W

AKE FOREST L. REV. 289, 350 (2022).

11. See infra Part VI.B.

12. See infra Part II.

13. See infra note 143 and accompanying text.

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 333

election results in both congressional and presidential elections.

That duty can be enforced in state courts to ensure the timely,

accurate transmission of election results to Congress. And that

federal duty obviates concerns about the separation of powers inside

state government—concerns that state courts may have if they are

asked to order the governor how to behave.

Mandamus has its limitations—it, like any legal remedy, cannot

solve every problem. But mandamus is preferable to any other

remedy in the right circumstances. Mandamus does not extend to

officials’ discretionary acts, but discretion includes judgment—the

principal concern of election subversion arises in cases where there

is no judgment, and the result is (or should be) obvious. State

mandamus can be coupled with simple directives from Congress to

ensure that state election officials, including governors, have federal

obligations, which empowers state courts to direct state officials to

comply with ministerial tasks in election administration. While

mandamus can look like a narrower remedy than injunctive relief,

state court jurisdictional statutes make mandamus a much more

powerful tool for speedy relief.

Mandamus may create a risk by

incentivizing election officials to drag their feet and grandstand, but

the alternative—the absence of judicial relief—is worse.

But mandamus can be strengthened. First, mandamus can be

used more broadly if it is joined with legislation that reduces

election officials’ discretion. That tradeoff comes with its own costs,

but it certainly reduces the risk of subversion. Second, the remedies

for recalcitrant election officials who defy mandamus can extend

beyond contempt. A less intrusive and more expeditious enforce-

ment mechanism would be to allow some other official to certify

election results or fulfill other ministerial legal obligations. Many

states have such a rule, and in other states that mechanism could

be made explicit. Third, states can add more expedited legal

avenues for mandamus, including assurance of original jurisdiction

in state supreme courts, to provide timely and effective relief.

Rather than expanding original jurisdiction in injunctive cases,

which would sweep in many other cases that may be undesirable to

include in state supreme court original jurisdiction, mandamus

14. See infra Part IV.

15. See infra Part V.

334 WILLIAM & MARY LAW REVIEW [Vol. 65:327

provides a narrow pathway for addressing election subversion.

While mandamus cannot stop all election subversion, it is a reliable

and traditional tool that can be readily implemented to address

present and future concerns to ensure integrity in election adminis-

tration.

THE WRIT OF MANDAMUS

A. The Origins of Mandamus

Simply put, mandamus is a court order to a lower court or to a

government officer “to perform mandatory or purely ministerial

duties correctly.”

The writ of mandamus traces back to the Magna

Carta and its expression of the legal principle, “to no one will we

sell, to no one deny or delay right or justice.”

Mandamus was a “high prerogative writ” from the King’s Bench,

which meant mandamus arose in law, not in equity. But mandamus

sounds very much like an equitable remedy. Mandamus relief was

only available when no other legal remedy existed,

a condition like

equity’s condition that a legal remedy must be inadequate. The writ

focused on public rights, public officials, and public affairs, not on

the vindication of private violations of common law.

In its earliest days, the writ took the form of a letter from the

sovereign power ordering the recipient to fulfill a particular duty,

and no appeal was allowed.

Early examples of writs that looked

16. Mandamus, BLACK’S LAW DICTIONARY (8th ed. 2004).

17. T

HOMAS TAPPING, THE LAW AND PRACTICE OF THE HIGH PREROGATIVE WRIT OF

MANDAMUS, AS IT OBTAINS BOTH IN ENGLAND, AND IN IRELAND 56 (Philadelphia, T. & J.W.

Johnson 1853) (referencing the Magna Carta phrase in its original Latin: “nulli negabimus

aut differemus justitiam vel rectum”).

18. Id. at 58.

19. Id. at 62.

20. Id. at 64. See James E. Pfander, Marbury, Original Jurisdiction, and the Supreme

Court’s Supervisory Powers, 101 C

OLUM. L. REV. 1515, 1525-26 n.39 (2001). Some early

American uses of the writ sought to compel a party to respect the private rights of another for

the interest of justice, peace, and order, but by the late nineteenth century, mandamus was

limited to cases involving public matters. S.

S. MERRILL, LAW OF MANDAMUS 16-17 (Chicago,

T. H. Flood & Co. 1892).

21. T

APPING, supra note 17, at 57; FORREST G. FERRIS & FORREST G. FERRIS, JR., THE LAW

EXTRAORDINARY LEGAL REMEDIES: HABEAS CORPUS, QUO WARRANTO, CERTIORARI,

ANDAMUS, AND PROHIBITION §§ 187, 192, 256 (1926).

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 335

like mandamus can be found in the fourteenth century, and written

decisions invoking the “writ of mandamus” arose in the early

seventeenth century.

But mandamus remained rare until Lord

Mansfield established the writ with a comprehensive theory of its

scope and application in the eighteenth century.

The King’s Bench

was the protector of public rights. If someone had a public right—at

common law, by statute or act of parliament, or from the King’s

charter—and no other legal remedy existed, the bench should grant

mandamus.

“Obsolete or inconvenient” relief also meant that no

legal remedy existed and the court could grant a writ of manda-

mus.

William Blackstone described the writ of mandamus as “most

extensively remedial [in] nature.”

“[I]t issues in all cases where

the party hath a right to have any thing done, and hath no other

specific means of compelling [its] performance.”

In the late eigh-

teenth century, Blackstone identified the breadth of mandamus’s

power:

22. See TAPPING, supra note 17, at 56; FERRIS & FERRIS, supra note 21, at § 187. Its origins

remain murky. James Bagg’s Case, 11 Co. 93b, 77 Eng. Rep. 1271 (KB 1615), remains the

traditional origin of mandamus. Historian Edith G. Henderson forcefully argues that scholars

and lawyers “have [not] been able to find any cases of mandamus or restitution in the reports

or judicial records before 1606.” E

DITH G. HENDERSON, FOUNDATIONS OF ENGLISH

ADMINISTRATIVE LAW: CERTIORARI AND MANDAMUS IN THE SEVENTEENTH CENTURY 46-49

(1963). In contrast, Thomas Tapping’s treatise on mandamus insists that “it is not true that

the writ was first used so lately as the reign of James 1, in a case called Bagg’s,” but that

writs of mandamus predating this case were simply not entered into the record or may not

have used the label. T

APPING, supra note 17, at 56. Henderson characterizes these pre-1606

decisions as “writs of privilege” that bear “close resemblance” to mandamus, H

ENDERSON,

supra note 22, at 53, or “are fairly plausible taken in isolation, as ancestors of mandamus,”

id. at 67-68. See also Kevin Costello, Mandamus and Borough Political Life, 1615 to 1780, 42

LEGAL HIST. 171, 172-73 (2021) (describing the earlier cases as “writs of restitution”); S.A.

de Smith, The Prerogative Writs, 11 C

AMBRIDGE L.J. 40, 50 (1951) (describing a 1573 case of

mandamus “substantially similar” to the modern writ); J

AMES L. HIGH, A TREATISE ON

EXTRAORDINARY LEGAL REMEDIES § 2 (Chicago, Callaghan & Co. 3d ed. 1896).

23. See H

ENDERSON, supra note 22, at 140-41 (citing Rex v. Barker, 3 Burr. 1265 (1762));

see also Bengson, 43 N.E.2d at 954.

68. See Bray, supra note 67, at 559.

69. Carson Reclamation Dist. v. Vigil, 246 P. 907, 908 (N.M. 1926).

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 341

has not shown a “clear legal right” to the remedy.

For this reason,

courts sometimes treat “clear legal duty” and “clear legal right” as

distinct elements but conflate their analysis.

“Clear” obligations are not superficially obvious obligations, but

those obligations lacking any discretion. That is, a “clear” legal duty

may well take a court some time and analysis to identify. In Mar-

bury, for instance, the Supreme Court engaged in a lengthy legal

analysis before it concluded that Marbury had a “right” to his

commission once the commission had been signed and sealed.

Mandamus is not typically available to establish a legal right, but

only to enforce an established right.

A novel judicial determination

creating the right is left for other judicial proceedings.

Likewise,

if facts are in dispute, an appellate court may not exercise jurisdic-

tion over the case because the obligations are not “clear” and instead

leave the matter for trial court resolution.

Some states occasionally recognize that in extreme cases,

mandamus will issue for discretionary acts. Nevada, for instance,

recognizes, “[m]andamus will not lie to control discretionary action,

unless discretion is manifestly abused or is exercised arbitrarily or

capriciously.”

But these remain limited exceptions, and cases that

require a court to examine the facts may face challenges in expe-

dited review.

70. See, e.g., id.; Light v. Bd. of Educ. of Lebanon, 364 A.2d 229, 231 (Conn. 1975); Burley

v. N.D. Dept. of Transp., 603 N.W.2d 490, 492 (N.D. 1999).

71. See, e.g., State ex rel. Stark Cnty. Bd. of Elections v. Stark Cnty. Bd. of Comm’rs, 177

N.E.3d 232, 235-36 (Ohio 2021) (per curiam) (labeling “clear legal right” and “clear legal duty”

as two separate elements, then treating them as a single issue).

72. Marbury, 5 U.S. (1 Cranch) at 154-62.

73. See Willimon v. City of Greenville, 132 S.E.2d 169, 170-71 (S.C. 1963); Wilson v. Pa.

Bd. of Prob. & Parole, 942 A.2d 270, 272 (Pa. Commw. Ct. 2008).

74. See, e.g., Chapman v. Berks Cnty. Bd. of Elections, No. 355 MD 2022, at 26-27 (Pa.

Commw. Ct. Aug. 19, 2022) (refusing to issue mandamus when the court had granted

“preliminary relief” of the interaction between a federal law and a state law regarding the

canvassing of ballots, because the legal judgment “could change pending final resolution of

the legal issue”).

75. See, e.g., Mendoza v. Eighth Ct. of Appeals, 917 S.W.2d 787, 788-90 (Tex. 1996) (per

curiam).

76. Round Hill Gen. Improvement Dist. v. Newman, 637 P.2d 534, 536 (Nev. 1981)

(citation omitted).

77. See infra Part V.A (describing narrowness of original jurisdiction in state supreme

courts).

342 WILLIAM & MARY LAW REVIEW [Vol. 65:327

Third, the public official has refused to act in accordance with this

clear legal duty.

Fourth, there is no other adequate remedy.

Alternative but

“extraordinary” remedies are not “adequate.”

The adequacy of

other remedies may be specific to the context in which mandamus

is sought. In Texas, for instance, adequacy issues commonly arise

when mandamus is sought in lieu of an appeal from a lower court

decision.

In 1997, the Supreme Court of Texas rejected mandamus

after a lower court ordered a class certified in a class action law-

suit.

The court emphasized that mandamus should be issued

“sparingly and deliberately.”

Opponents of class certification could

follow the ordinary appellate routes of interlocutory appeal of a class

certification ruling or appeal after a trial on the merits.

While

there may be circumstances sufficiently “extraordinary” to justify

mandamus, they were not present in this case.

Fifth, the court may decline to issue mandamus in its discretion.

The concept of “discretion” is often left to “equitable principles.”

court might identify the circumstances in dispute as “unique” that

would needlessly involve the judiciary.

Some states recognize that

78. Mandamus, BALLOTPEDIA, https://ballotpedia.org/Mandamus [https://perma.cc/XQ2V-

GRXC].

79. See, e.g., N

EV. REV. STAT. § 34.170 (2023).

80. State ex rel. Stark Cnty. Bd. of Elections v. Stark Cnty. Bd. of Comm’rs, 177 N.E.3d

232, 236 (Ohio 2021) (per curiam).

81. See Rhodes, supra note 64, at 547-48, 548 n.134.

82. Deloitte & Touche, LLP v. Fourteenth Ct. of Appeals, 951 S.W.2d 394, 395-96, 398

(Tex. 1997).

83. Id. at 396.

84. Id. at 397. See Rhodes, supra note 64, at 559-60.

85. Deloitte, 951 S.W.2d at 398 (“We do not preclude the possibility that in an

interlocutory appeal context we might issue mandamus against a court of appeals for

procedural irregularities or for actions taken by a court of appeals so devoid of any basis in

law as to be beyond its power.... The facts of this case, however, do not constitute the type of

extraordinary situation where mandamus should issue.”).

86. See Mandamus, supra note 78.

87. See In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 674, 676 (Tex. 2009) (per curiam);

see also Bray, supra note 67, at 546 n.75.

88. See, e.g., Brewer v. Burns, 213 P.3d 671, 679-80 (Ariz. 2009) (declining to issue

mandamus in “unique circumstances” where a “good-faith dispute between the political

branches” was present, and judicial relief would change the delivery of a bill to the governor

by “merely a week” and therefore might “unnecessarily involve[ ]” the judiciary); State ex rel.

Clark v. City of Seattle, 242 P. 966, 968 (Wash. 1926) (denying mandamus when the city had

insufficient funds available for the expenditure to reconstruct a bridge).

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 343

the “public interest” would be “adversely affected” by a grant of

mandamus in limited cases.

Justice Louis Brandeis summarized

the concept in a 1917 case before the Supreme Court of the United

States:

Mandamus is an extraordinary remedial process which is

awarded, not as a matter of right, but in the exercise of a sound

judicial discretion. It issues to remedy a wrong, not to promote

one; to compel the performance of a duty which ought to be

performed, not to direct an act which will work a public or

private mischief or will be within the strict letter of the law but

in disregard of its spirit. Although classed as a legal remedy, its

issuance is largely controlled by equitable principles.

This discretion, however, is sometimes expressed simply as an alter-

native to the merits. In a 1938 case in Florida, for example, the

Florida Supreme Court found no clear right for teachers to be

restored to their positions in a public school, but it also found in the

alternative that a writ could “cause confusion in the work of the

schools to the detriment of the public welfare.”

Likewise, a 2010

case in Washington held that a union representing personal health

care providers had no right to ensure that items about wage in-

creases appeared in the state budget, but that the ongoing economic

difficulties in the state would have counseled against granting

relief, anyway.

Beyond these five common elements, the distinction between al-

ternative writs and peremptory writs also remains in many states.

An alternative writ orders the official to perform the act or to show

cause why she need not perform the act; a peremptory writ is an

absolute order to perform the act, with no alternative.

A court may

89. See, e.g., Bennett v. Bd. of Supervisors of Pearl River Cnty., 987 So.2d 984, 985-86

(Miss. 2008).

90. Duncan Townsite Co. v. Lane, 245 U.S. 308, 311-12 (1917).

91. State ex rel. Carson v. Bateman, 180 So. 22, 23 (Fla. 1938) (per curiam).

92. SEIU Healthcare 775NW v. Gregoire, 229 P.3d 774, 775, 778, 780 (Wash. 2010) (en

banc).

93. See, e.g., Murphy Citizens Advisory Comm. v. Josephine Cnty., 934 P.2d 415, 419 (Or.

1997); Murph v. Prosecuting Att’y, 223 So. 2d 44, 45 (Fla. 1969) (per curiam); State ex rel.

Krieger v. Bd. of Supervisors of Clay Cnty., 105 N.W.2d 721, 724-25 (Neb. 1960).

94. See, e.g., Young v. Johnson, 207 A.2d 392, 397 (Me. 1965); Legal Information Institute,

Alternative Writ of Mandate (Mandamus), C

ORNELL L. SCH. (June 2021),

344 WILLIAM & MARY LAW REVIEW [Vol. 65:327

enter judgment on the peremptory writ at any time, ex parte, and

without a hearing.

Mandamus traces back centuries, and many of its historic salient

features remain applicable in the courts today.

It offers a simple,

straightforward, and expeditious remedy for litigants challenging a

public official’s refusal to perform a clear legal duty. And mandamus

can offer particular value in election disputes.

II.

MANDAMUS IN ELECTION DISPUTES

Mandamus is a powerful and versatile writ. And the writ was

readily issued in election cases before the King’s Bench.

Historian

Kevin Costello traces its application as a remedy for an illegal elec-

tion back to 1626.

Indeed, Costello notes that the earliest applica-

tions of mandamus were heavily tilted toward election disputes: “In

the first two decades of the seventeenth century, over sixty per cent

of mandamus applications were in some way election-related.”

Mandamus could be used to restore a candidate to political office or

to settle an election dispute.

100

In contemporary elections, mandamus can also apply to a variety

of circumstances, but with a concededly narrow application: minis-

terial tasks that election officials must perform under the law.

101

https://www.law.cornell.edu/wex/alternative_writ_of_mandate_(mandamus) [https://perma.cc/

F3WB-ZCJJ].

95. See, e.g., State ex rel. Shepherd v. Nebraska Equal Opportunity Comm’n, 557 N.W.2d

684, 689-90 (Neb. 1997); Dusman v. Bd. of Dirs. of Chambersburg Area Sch. Dist., 113 A.3d

362, 368 (Pa. Commw. Ct. 2015).

96. Audrey Davis, Note, A Return to the Traditional Use of the Writ of Mandamus, 24

EWIS & CLARK L. REV. 1527, 1529, 1543 (2020).

97. See, e.g., 3 B

LACKSTONE, supra note 26, at *265.

98. Costello, supra note 22, at 185.

99. Id. at 186.

100. Id. at 171-72.

101. While this Article focuses on mandamus as a remedy against state executive officials,

mandamus is widely used in other contexts. Notably, a party may seek mandamus in a higher

court against a lower court to compel the court to do something. See, e.g., Mathews v. Crews,

132 So. 3d 776, 778 (Fla. 2014) (per curiam) (“Although a court may use its mandamus

authority to compel a lower court to act in the exercise of its lawful jurisdiction, it cannot

direct how the lower court should act.”); Rodgers v. State, 606 S.W.3d 72, 73 (Ark. 2020)

(“Mandamus will compel a judge to act when he or she should act, but it will not be used to

tell a judge how to decide a judicial question.”); Burnham v. Super. Ct. of California, 495 U.S.

604, 608 (1990) (describing how appellate court rejected mandamus relief after trial court

found personal jurisdiction over defendant).

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 345

a sense, mandamus serves as a mechanism for state courts to

support the state legislatures’ directives to election officials.

102

Mandamus can be used to direct recalcitrant officials—including

election officials—to perform their ministerial duties.

103

Three cir-

cumstances illustrate how mandamus works in the contemporary

election context: certifying petitions, canvassing votes, and certify-

ing winners.

A. Certifying Petitions

First, the decisions to certify candidate nominations or petitions

for ballot access are ministerial acts.

104

In 2004, for instance, the

Michigan State Board of Canvassers deadlocked 2-2 on whether to

certify an initiative petition proposing an amendment to the state

constitution defining the legal recognition of “marriage.”

105

The

petitioners had secured enough signatures, but two members of the

board believed that the proposed amendment was “unlawful and

unconstitutional.”

106

After the board deadlocked, a complaint seek-

ing mandamus was filed in state court.

107

A unanimous per curiam

opinion from the Michigan Court of Appeals held that mandamus

102. Cf. Carolyn Shapiro, The Independent State Legislature Theory, Federal Courts, and

State Law, 90 U.

CHI. L. REV. 137, 195-96 (2023) (endorsing a close relationship between state

legislatures and state courts in the enforcement of election law).

103. See, e.g., State ex rel. Patton v. Houston, 4 So. 50, 52 (La. 1888) (“No authority is or

can be cited exempting public officers charged by law with specific ministerial duties in

election matters from the same judicial control which is exercised over all other officers of the

state with reference to similar duties.”); State ex rel. Stark Cnty. Bd. of Elections v. Stark

Cnty. Bd. of Comm'rs, 177 N.E.3d 232, 235-37 (Ohio 2021) (per curiam) (instructing county

board of commissioners to purchase new voting machines after the board had voted to approve

the acquisition of the voting machines but later tried to backtrack on its decision, because the

purchase of machines was approved by the board pursuant to state law).

104. See, e.g., Benavides v. Atkins, 120 S.W.2d 415, 416-17 (Tex. 1938) (per curiam);

Zellmer v. Smith, 221 N.W. 220 (Iowa 1928); see also Florida League of Cities v. Smith, 607

So. 2d 397, 399 (Fla. 1992) (“[O]ur precedent clearly holds that a petition for mandamus is an

appropriate method for challenging an allegedly defective proposed amendment to the

Constitution.”); Christopher M. Trebilcock & Vincent C. Sallan, Michigan Election Law

Survey, 67 W

AYNE L. REV. 509, 519-22 (2022) (describing circumstances in which there was

a ministerial obligation to remove a candidate from the ballot but relief was denied due to

laches).

105. Citizens for Prot. of Marriage v. Bd. of State Canvassers, 688 N.W.2d 538, 540 (Mich.

Ct. App. 2004) (per curiam).

106. Id.

107. Id.

346 WILLIAM & MARY LAW REVIEW [Vol. 65:327

was appropriate.

108

The Board had a “clear legal duty” to certify a

petition once it determined there were sufficient signatures.

109

The

Board had no authority to review the constitutionality of a proposed

initiative; its role was simply ministerial, and the court could

instruct the board to certify the amendment.

110

In 2021, again in Michigan, a ballot petition that would limit the

governor’s powers during emergencies secured more than 460,000

valid signatures, based on a Bureau of Elections analysis, when the

petition needed only some 340,000 signatures.

111

The board dead-

locked 2-2 on whether to investigate the petition’s signatures.

112

The

petition’s circulators sought a writ of mandamus in the Michigan

Supreme Court.

113

The court concluded that once the Board rejected

(by a tie vote) the investigation of the signatures, the Board had a

“clear legal duty to certify the petition.”

114

Accordingly, it ordered

the Board the certify the petition.

115

And the Board did so.

116

B. Canvassing Votes

Second, the canvass of votes is a ministerial act.

117

In Colorado,

the outcome of a closely-contested city council election turned on

whether 47 “irregular” ballots were proper write-in votes or were

improper and should be excluded in the tally.

118

After the counting

judges sent the totals to the canvassing board, the board could not

agree to certify a total number of ballots because it disagreed about

counting those irregular ballots.

119

In a mandamus proceeding, the

108. Id. at 543.

109. Id. at 541-42.

110. Id.

111. Craig Mauger, Unlock Michigan Proposal Heads to State Legislature After Year of

Clashes, D

ETROIT NEWS (July 13, 2021, 6:31 PM), https://www.detroitnews.com/story/

news/politics/2021/07/13/unlock-michigan-proposal-heads-legislature-after-year-

clashes/7948355002/ [https://perma.cc/JZZ8-RSZX].

112. Id.

113. Unlock Mich. v. Bd. of State Canvassers, 961 N.W.2d 211, 211 (Mich. 2021) (mem.).

114. Id.

115. Id.

116. Mauger, supra note 111.

117. See, e.g., State ex rel. Walker v. Harrington, 27 A.2d 67, 76-78 (Del. 1942); see also

ERRIS & FERRIS, supra note 21, § 294; HALSEY H. MOSES, THE LAW OF MANDAMUS 90-91

(Albany, William Gould, 1866).

118. Goff v. Kimbrel, 849 P.2d 914, 915 (Colo. App. 1993).

119. Id.

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 347

Colorado Court of Appeals noted, “[c]anvassing returns of ballots

already counted by election officials is a ministerial duty of a can-

vassing board.”

120

“It is not within the province of a canvassing

board to investigate questions concerning irregularities, frauds, and

illegal votes in the ballot box, since any such complaints are

properly raised in an election contest case.”

121

The counting judges

submitted results to the canvassing board, and “absent a clerical

mistake,” the canvassing board had a ministerial duty to report the

results.

122

Questions of the disputed ballots were left to an election

contest court to resolve, not for the canvassing board.

123

C. Certifying Winners

Finally, certifying the winner of an election is ministerial.

124

cite one example: the Supreme Court of Ohio in 1983 concluded that

candidate Arthur Lambros was not a resident of Brook Park and

therefore ineligible to run for the city’s office of law director.

125

The

state court ordered him off the ballot, but a federal court later is-

sued a temporary restraining order to keep Lambros’s name on the

ballot.

126

After the election, Secretary of State Sherrod Brown

instructed the Cuyahoga County Board of Elections to count votes

for Lambros, despite the Ohio Supreme Court’s decision that

Lambros was ineligible for the office.

127

Labros’s challenger, David

Williamson, sued Brown and the Board for a writ of mandamus to

compel them to count votes cast only for Williamson.

128

A majority of the Supreme Court of Ohio agreed with Williamson;

Ohio law gave a “clear legal duty” to count only ballots cast for

120. Id. at 916.

121. Id. at 917.

122. Id.

123. Id. at 915-17.

124. See, e.g., State ex rel. Watson v. Pigg, 46 N.E.2d 232, 236 (Ind. 1943); Reed v. State ex

rel. Davis, 174 So. 498, 499-500 (Ala. 1937); see also F

ERRIS & FERRIS, supra note 21, § 295;

OSES, supra note 117, at 91.

125. State ex rel. Spangler v. Bd. of Elections, 455 N.E.2d 1009, 1010-11 (Ohio 1983) (per

curiam).

126. State ex rel. Williamson v. Cuyahoga Cnty. Bd. of Elections, 464 N.E.2d 138, 139 (Ohio

1984).

127. Id.

128. Id. at 139-40.

348 WILLIAM & MARY LAW REVIEW [Vol. 65:327

candidates who were eligible before the election.

129

It also concluded

that Williamson was entitled to be declared “duly elected,” as he

was the candidate who received the “largest number of votes.”

130

D. Availability and Timing of Relief

These three examples—certifying petitions, canvassing votes, and

certifying winners—are admittedly oversimplified. Whether there

is a “clear legal duty” turns on a state’s laws. And where election

officials have discretion, mandamus is inappropriate.

131

State law identifies which parties may seek mandamus. For in-

stance, the Secretary of State may seek mandamus against a local

election official for failing to certify results and then transmit those

certified results to the secretary.

132

A candidate may seek manda-

mus if he purports to be the winning candidate and the official has

failed to issue a certificate of elections.

133

An organization attempt-

ing to put an initiative on the ballot may seek mandamus if election

officials fail to certify the petitions.

134

In short, the context of the

election officials’ activity may affect who might seek the writ.

The timing of filing for a writ of mandamus can also affect its

availability. States have extensive rules for canvassing, recounting,

auditing, and contesting elections. Sometimes mandamus cannot

be brought against an executive official precisely because that

process is playing out elsewhere and the executive is not yet obli-

gated to act. Consider Franken v. Pawlenty, a 2009 Senate election

dispute in Minnesota.

135

Al Franken sought a signed certificate of

election from Governor Tim Pawlenty after the contested Minnesota

Senate election of 2008.

136

The State Canvassing Board concluded

129. Id. at 140.

130. Id. at 141.

131. See, e.g., Broward Cnty. Canvassing Bd. v. Hogan, 607 So. 2d 508, 510 (Fla. Dist. Ct.

App. 1992) (per curiam) (“The statute clearly leaves the decision whether or not to hold a

manual recount of the votes as a matter to be decided within the discretion of the canvassing

board.”); State ex rel. Richardson v. Baldry, 56 S.W.2d 67, 70 (Mo. 1932) (denying mandamus

when “respondents, in rejecting the trustees’ proffered votes, were not acting in a purely

ministerial capacity”); see also infra Part VI.C.

132. See infra note 155 and accompanying text.

133. See infra note 135 and accompanying text; infra note 213 and accompanying text.

134. See supra note 104 and accompanying text.

135. 762 N.W.2d 558 (Minn. 2009) (per curiam).

136. Id. at 560.

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 349

that Franken had received 225 votes more than his opponent, Norm

Coleman.

137

While Coleman’s election contest was pending in Minne-

sota state court, Franken filed a separate action for mandamus to

compel Pawlenty to declare Franken the winner and issue the

certificate of election.

138

But the court refused to issue such an

order.

139

The process in Minnesota was still playing out under state

law, and the governor had no legal duty to deliver a certificate while

the election contest was pending.

140

Governor Pawlenty ultimately

issued the certificate of election, hours after the election contest

before the Minnesota Supreme Court concluded.

141

Mandamus was

simply unavailable while the pre-existing legal process played out.

By the end of the canvass, recount, audit, and contest, however,

the results are in. There is a winning candidate and a losing candi-

date. The decision to “certify” an election becomes a ministerial act.

And if an election official opts to refuse to certify the result—or to

certify some other result—the ideal remedy is mandamus.

III.

DEFYING MANDAMUS

Mandamus is a court order that directs an election official to do

something. What happens if an election official still refuses and

defies mandamus?

At common law, two remedies were readily available. First, the

court could order the attachment of property to compel the offending

officer to comply.

142

Second, the court could use its contempt power

to compel a recalcitrant official to comply.

143

Courts today draw on

these traditional remedies and have at least four mechanisms to

compel performance: fines, imprisonment, replacing the official, or

substituting another official to perform the act.

144

The first two trace

137. Id.

138. Id.

139. Id. at 570.

140. Id. at 561, 566.

141. See In re Contest of Gen. Election Held on Nov. 4, 2008 for Purpose of Electing a U.S.

Senator from St. of Minn., 767 N.W.2d 453, 457 (Minn. 2009) (per curiam); 155 Cong. Rec.

S7168 (daily ed. July 7, 2009).

142. See 2 S

PELLING, supra note 25, §§ 1704-05.

143. T

APPING, supra note 17, at 456-57; HIGH, supra note 22, at 517-18; 2 SPELLING, supra

note 25, §§ 1704-05.

144. See infra notes 158-72 and accompanying text.

350 WILLIAM & MARY LAW REVIEW [Vol. 65:327

back to the court’s contempt power, but the last two are newer

developments. A recent dispute in Otero County, New Mexico illus-

trates the pressure that comes to bear upon election officials facing

mandamus.

A. Judicial Mechanisms to Ensure Compliance with Mandamus

The Otero County Commission met as the Canvassing Board on

June 13, 2022, to certify its election results, and its members ex-

pressed “concerns” about the primary election at its meeting.

145

Election precincts submitted results to the county, and the county’s

task was to tabulate the votes and submit them to the Secretary of

State.

146

The commissioners expressed concerns that ranged across

a variety of topics: the voting machines were unreliable, commis-

sioners received emails from people “super concerned” about the

election, there were fears of “ghost voters” (deceased voters who cast

ballots), “and so on.”

147

New Mexico has a statutory process for a

recount, among other avenues to contest the outcome of an election,

but the Board opted not to wait for any other legal process to play

out.

148

The Board had “until June 17 to certify the results, but at the

[June 13] meeting the Board unanimously refused to certify the

results.”

149

At the meeting, the possibility was raised that a court might is-

sue a writ of mandamus, which would force the commission to cer-

tify the results.

150

One commissioner joked: “And so then what?

They’re going to send us to the pokey?”

151

“You’d be in contempt,” an

145. Morgan Lee, GOP Commission Refuses to Certify New Mexico Primary Results Over

Distrust of Voting Machines, PBS:

NEWS HOUR (June 14, 2022, 9:08 PM), https://www.pbs.org/

newshour/politics/gop-commission-refuses-to-certify-new-mexico-primary-results-over-

distrust-of-voting-machines [https://perma.cc/VA79-VJNV].

146. N.M.

STAT. ANN. § 1-13-16 (West 2023).

147. Derek Muller, New Mexico Secretary of State Seeks Mandamus Against County

Commission That Refused to Certify Primary Election Results, E

LECTION L. BLOG (June 15,

2022, 5:56 AM), https://electionlawblog.org/?p=129945 [https://perma.cc/EX5H-KAYV].

148. Id.

149. Id.

150. Otero County, Otero County Special Meeting June 13, 2022, Y

OUTUBE (June 13, 2022),

https://www.youtube.com/watch?t=2273&v=Gv9KECp4khg&feature=youtu.be [https://perma.

cc//ZZQ7-WWUS].

151. Id.

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 351

attorney remarked.

152

“And that’s how we get controlled from the top

down,” another commissioner, Couy Griffin, remarked.

153

(Griffin is

infamous in his own right. The “Cowboys for Trump” co-founder was

found guilty of entering a restricted area at the Capitol on January

6, 2021.

154

)

On June 14, the New Mexico Secretary of State filed a mandamus

action in the state supreme court.

155

Existing New Mexico law

allows district courts to issue mandamus against canvassing boards

to certify election results.

156

But the Secretary of State opted to file

directly in the supreme court.

157

Two justices recused themselves,

presumably because they appeared on the primary ballot.

158

And on

June 15, just one day later—and without holding a hearing—the

Court granted the petition for writ of mandamus to compel the

Otero County Commission to certify the election results by June

17.

159

The Board met again on June 17.

160

A range of legal consequences

confronted the commissioners as they weighed whether to comply

with or defy the writ of mandamus.

First, New Mexico authorizes $250 in fines for any official who

disobeys.

161

This penalty was enacted in 1884, and it appears not to

152. Id.

153. Id.

154. Allison Mollenkamp, ‘Cowboys for Trump’ Leader is Given a Mixed Verdict in His Jan.

6 Capitol Riot Trial, NPR (Mar. 22, 2022, 3:14 PM), https://www.npr.org/2022/03/22/

1088057064/cowboys-for-trump-leader-is-given-a-mixed-verdict-in-his-jan-6-capitol-riot-trial

[https://perma.cc/6QWE-H7DC].

155. Emergency Verified Petition for Writ of Mandamus to Compel Certification of Election

Results, Oliver v. Otero Cnty. Comm’n, No. S-1-SC-39426 (N.M. June 14, 2022), https://www.

sos.nm.gov/wp-content/uploads/2022/06/2022-06-14-EMERGENCY-SC-Writ-of-Mandamus-

Compelling-the-Certification-of-Election-Results-2.pdf [https://perma.cc/BZ49-2DTN].

156. N.M.

STAT. ANN. § 1-13-12 (West 2019).

157. See N.M.

CONST. art. VI, § 3 (“The supreme court shall have original jurisdiction in

quo warranto and mandamus against all state officers, boards and commissions.”).

158. Dan Boyd, NM Supreme Court Orders Otero County Commission to Certify Election

Results, A

LBUQUERQUE J. (June 15, 2022, 10:09 PM), https://www.abqjournal.com/2508726/

nm-supreme-court-orders-otero-county-commission-to-certify-election-results.html

[https://perma.cc/7YSB-Q99M].

159. Writ of Mandamus, Oliver v. Otero Cnty. Comm’n, No. S-1-SC-39426 (N.M. June 15,

2022), https://www.democracydocket.com/wp-content/uploads/2022/06/2022-06-15-order.pdf

[https://perma.cc/65EU-Q6XK].

160. Otero County, Otero County Emergency Meeting June 17, 2022, Y

OUTUBE (June 17,

2022), https://www.youtube.com/watch?v=nnV- CAElSzI [https://perma.cc/ZZ2R-MHEP].

161. N.M.

STAT. ANN. § 44-2-13 (1978).

352 WILLIAM & MARY LAW REVIEW [Vol. 65:327

have been updated since then.

162

It is a relatively mild inducement,

all things considered. Second, officials may be imprisoned until they

comply.

163

This penalty is a much stronger inducement to comply,

but a recalcitrant official may be willing to risk a few days’ impris-

onment to delay certification past a significant deadline.

164

Third, officials who refuse to follow through can be removed from

office and replaced.

165

This penalty was particularly potent in New

Mexico. Members of the county commission also serve as members

of the canvassing board.

166

Truly recalcitrant officials might hold out

for removal from a stand-alone canvassing board. But the county

commission in New Mexico affects broad policymaking throughout

the year.

167

This potential penalty moved two of the commissioners

to support certification.

168

They lamented the fact that if they re-

fused to certify, they would no longer be able to serve the people of

162. Id. (See Credits and Legislative History).

163. See Delgado v. Chavez, 140 U.S. 586, 587 (1891).

164. See infra notes 171-72, 302-03 and accompanying text.

165. N.M.

STAT. ANN. § 10-4-2. Here, it is worth identifying the possible applicability of the

writ of quo warranto. Quo warranto is available to expel an individual who is wrongfully

holding public office. See, e.g., Fla. House of Representatives v. Crist, 999 So. 2d 601, 607

(Fla. 2008); Spykerman v. Levy, 421 A.2d 641, 649 (Pa. 1980); State ex rel. Burnquist v.

Village of North Pole, 6 N.W.2d 458, 460-61 (Minn. 1942); McGuire v. Demuro, 121 A. 739,

739-40 (N.J. 1923). This challenge typically arises if the individual is not qualified to hold

office or as a challenge to whether the individual was actually elected; but in some juris-

dictions, it can be used to remove an individual who has forfeited his office by misconduct. See,

e.g., State ex rel. Nixon v. Wakeman, 271 S.W.3d 28, 29-30 (Mo. Ct. App. 2008); State ex rel.

Watkins v. Fiorenzo, 643 N.E.2d 521, 521-22 (Ohio 1994) (per curiam); State ex rel. Martinez

v. Padilla, 612 P.2d 223, 225-26 (N.M. 1980).

But quo warranto is not an appropriate challenge until the purported usurper has entered

into office or exercised some authority under that office. See, e.g., League of Women Voters

v. Scott, 232 So. 3d 264, 265 (Fla. 2017) (per curiam). This is a reason why a candidate should

seek mandamus, not quo warranto, if the election official has engaged in election subversion.

That subversion takes place in the post-election period but before anyone has yet taken office.

See, e.g., Att’y Gen. ex rel. Bashford v. Barstow, 4 Wis. 675-76 (Wis. 1856) (allowing court to

examine whether illegal votes had been cast in a quo warranto proceeding challenging a

governor who had taken office); F

OLEY, supra note 9, at 94-97 (describing important role of

state court in removing an incumbent governor from office in a quo warranto action).

166. N.M.

STAT. ANN. § 1-13-1(A) (1978).

167. See N.M.

STAT. ANN. § 4-57-1 (1978) (empowering the county commission to appoint

a planning commission); id. § 47-5-3 (requiring the county commission to approve plats of

subdivided land before such land may be offered for sale to the public).

168. See Annie Gowen, New Mexico County Certifies Election Results, Bowing to Court

Order, W

ASH. POST (June 17, 2022, 7:43 PM), https://www.washingtonpost.com/politics/

2022/06/17/new-mexico-county-weighs-defying-order-certify-election-results/ [https://perma.

cc/2S37-X7RR].

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 353

their county—and, worse, they would be replaced by successors

selected by a governor from a different political party.

169

(Griffin still

voted against certification, stating, “My vote to remain a no isn’t

based on any evidence, it’s not based on any facts, it’s only based on

my gut feeling and my own intuition, and that’s all I need.”

170

)

Fourth, New Mexico has a rule of civil procedure analogous to

Federal Rule of Civil Procedure 70.

171

Rule 70 offers “varied and

effective remedies” to ensure compliance with a judgment.

172

If a

judgment directs a party

to perform any other specific act and the party fails to comply

within the time specified, the court may direct the act to be done

at the cost of the disobedient party by some other person ap-

pointed by the court and the act when so done has like effect as

if done by the party.

173

At the end of the day, a court can simply find someone else to com-

plete the task.

In short, mandamus worked. Swift judicial action was available

because no facts were in dispute.

174

The potential penalties were

sufficient to induce compliance.

175

Noncompliance would have been

both costly and futile.

B. Limitations on Discretion for Election Officials

The Otero County Commission saga raises its own unique ques-

tions. First, what if election officials actually have legitimate

concerns about the election? Here, it is worth emphasizing that

different actors have different responsibilities for exploring differ-

ent concerns in our election systems. Some pre-election decisions,

such as voting machine vendor contracts, cannot be revisited after

169. Otero County, supra note 160.

170. Gowen, supra note 168.

171. Compare N.M.

R. CIV. P. DIST. CTS. 1-070, with FED. R. CIV. P. 70.

172. Armistead M. Dobie, The Federal Rules of Civil Procedure, 25 V

A. L. REV. 261, 304

(1939); see also Neebars, Inc. v. Long Bar Grinding, Inc., 438 F.2d 47, 48 (9th Cir. 1971) (per

curiam) (“A court has, and should have, wide latitude in making a determination of whether

there has been contemptuous defiance of its own orders.”).

173. N.M.

R. CIV. P. DIST. CT. 1-070.

174. See supra notes 155-59 and accompanying text.

175. See supra notes 161, 165 and accompanying text.

354 WILLIAM & MARY LAW REVIEW [Vol. 65:327

the election.

176

Pre-election logic and accuracy testing of voting

machines faces public scrutiny.

177

State officials, not county officials,

direct recounts in New Mexico.

178

The local canvassers from each

precinct do their due diligence to verify the substantive vote to-

tals.

179

In short, not every government official has the opportunity

to revisit every election decision.

If the canvassing board’s responsibilities are merely ministerial,

why have the county commissioners involved at all? For one, their

responsibilities are not always ministerial. Earlier, this Article

identified some practices subject to mandamus as “oversimpli-

fied.”

180

Sometimes, the Board may need to resolve defective returns

or recheck results in the presence of a district judge.

181

That is, at

times, commissioners—or any election official—may have substan-

tive or discretionary duties. For instance, if there are 155 precincts

and the Board received returns from only 154 precincts, it would

want to pause the process and find the results from the last pre-

cinct.

182

Likewise, if the totals reflect zero votes cast in one precinct,

or if the totals reflect a million votes cast in one precinct, officials

should halt the process to determine what went wrong.

183

Discretion

may exist in the appropriate, limited context.

184

Educating the public and election officials about these different

roles and responsibilities is not easy. Skepticism over elections

abounds.

185

But certification is only one small part of an election.

186

Each election official plays a different role in the election.

187

These

roles begin years before Election Day, as officials enter contracts

with vendors for voting machines or ballot paper.

188

Officials are

constantly registering voters and removing ineligible voters from

176. See N.M. STAT. ANN. § 1-9-17.1 (1978).

177. See id. § 1-9-7.5(E).

178. See id. § 1-14-14.

179. See id. § 1-14-18.

180. See supra note 131 and accompanying text.

181. See N.M.

STAT. ANN. §§ 1-13-5(A), 1-13-9 (1978).

182. See, e.g., id. § 1-13-2.

183. See, e.g., id. § 1-13-5.

184. See, e.g., id.

185. See, e.g., Gowen, supra note 168.

186. See id.

187. See, e.g., N.M.

STAT. ANN. § 1-13-1 (West 2023).

188. See, e.g., id. § 1-9-17.1.

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 355

the rolls.

189

As the election approaches, officials design and print

ballots, test voting equipment, and hire and train poll workers.

190

Each day of early voting, workers process voters and ballots.

191

election night, tabulation occurs simultaneously across thousands

of jurisdictions.

192

Those results are aggregated and passed along

for the canvass.

193

The canvass takes time to complete, as might any

audit, recount, or contest.

194

Each official plays a small role—or

sometimes a large role or several roles—in this process.

195

Certifying an election is something like an automotive worker at

the end of an assembly line, affixing windshield wiper blades to a

vehicle. That worker might be able to stop the assembly line if the

car has only three tires or if the doors are missing. But the worker

is not permitted to stop the assembly line to investigate whether

the inmost parts of the engine were fitted together to that worker’s

satisfaction. Other workers are responsible for other stages in the

process. There are other checks in the process—other managers and

other supervisors tasked with those responsibilities; workers must

know their roles and what responsibilities reside with someone else.

In Otero County, however, the Board simply wanted to revisit

earlier decisions, where the responsibility for those decisions resided

in other officials.

196

The Board did not attempt to exercise any of its

limited discretionary authority.

197

Instead, the members of the

Board wanted to revisit the decisions others had made at other

stages, which was not their responsibility.

198

States may have different statutory mechanisms to ensure tasks

are performed in situations like Otero County without judicial re-

view. For instance, the law could escalate a county board’s defiance

189. See, e.g., id. §§ 1-4-5, 1-4-25.

190. See, e.g., id. § 1-11-6.1.

191. See, e.g., id. § 1-6-23.

192. See, e.g., id. § 1-12-70.

193. See, e.g., id. § 1-13-4.

194. See, e.g., id.

195. See, e.g., id. § 1-13-1.

196. See Gowen, supra note 168.

197. It would be possible, of course, to let a district court judge “certify” the results, but

that would include taking on these other tasks, which may involve exercises of discretion. And

there are some downsides in moving the execution of the law to the judiciary. See infra Part

VII.B.

198. See Gowen, supra note 168.

356 WILLIAM & MARY LAW REVIEW [Vol. 65:327

to a state board or to the Secretary of State.

199

The prospect of jail-

ing a state executive official for contempt of a judicial order is not

exactly what a state judiciary wants—more limited interventions,

if available, seem preferable except in the most extreme cases.

200

But if needed, the judiciary has effective tools at its disposal to

ensure compliance. Part VII below will suggest some ways that

states can ensure mandamus remains an effective tool within their

legal systems to head off election subversion. But first, this Article

will examine how Congress can play a role in creating obligations

for election officials in federal elections.

IV.

LEGAL DUTIES CREATED BY CONGRESS

Most mandamus actions relating to elections come from state

elections in matters arising under state law. Most elections are for

state offices, local offices, or ballot initiatives, and, accordingly, one

would expect to see such cases arise most frequently.

That said, mandamus in federal elections is important even if less

frequent. A uniform federal obligation in federal elections can

streamline legal review with a single national standard for courts

to enforce.

201

It can strengthen confidence in outcomes of con-

gressional and presidential elections.

202

And there is a “uniquely

important national interest” in how each state administers its

presidential election, as what happens in one state “has an impact

beyond its own borders.”

203

But while the availability of mandamus

199. See, e.g., MICH. COMP. LAWS § 168.822(2) (2023) (“If the board of county canvassers

fails to certify the results of any election for any officer or proposition by the fourteenth day

after the election as provided, the board of county canvassers shall immediately deliver to the

secretary of the board of state canvassers all records and other information pertaining to the

election. The board of state canvassers shall meet immediately and make the necessary deter-

minations and certify the results within the 10 days immediately following the receipt of the

records from the board of county canvassers.”).

200. See infra Part VII.B.

201. Cf. Derek T. Muller, Reducing Election Litigation, 90 F

ORDHAM L. REV. 561, 562 (2021)

(proposing that resolving election disputes at higher levels reduces the incentive to litigate

and increases consistency).

202. See id.

203. Anderson v. Celebrezze, 460 U.S. 780, 794-95 (1983). Nevertheless, the mere fact that

what happens in one state can affect the ultimate outcome of the presidential election, which

affects all states, is not sufficient to establish standing for states to compel other states to

obey election rules. See Texas v. Pennsylvania, 141 S. Ct. 1230, 1230 (2020) (mem.).

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 357

in federal elections may be important, there are additional complex-

ities regarding federal elections and the federal courts. This Part

explores congressionally created ministerial obligations in federal

elections, both congressional elections and presidential elections. If

Congress can create the duty, then the state courts can be empow-

ered to enforce it.

A. Federal Obligations in Congressional Elections

Under the Elections Clause of the Constitution, “[t]he Times,

Places and Manner of holding Elections for Senators and Represen-

tatives, shall be prescribed in each State by the Legislature thereof;

but the Congress may at any time by Law make or alter such Reg-

ulations, except as to the Places of ch[oo]sing Senators.”

204

Thus,

Congress has the power to make or alter the regulations pertaining

to congressional elections. Congress’s power is broad and may su-

persede any inconsistent state law.

205

Each house of Congress also

has the power to be “the Judge of the Elections, Returns and

Qualifications of its own Members.”

206

These constitutional provi-

sions offer Congress flexibility in determining how it wants to

involve itself in congressional elections.

In 1866, Congress enacted a statute regulating Senate elec-

tions.

207

As a part of that law, Congress required the following:

That it shall be the duty of the governor of the State from which

any senator shall have been chosen as aforesaid to certify his

election, under the seal of the State, to the President of the

senate of the United States, which certificate shall be counter-

signed by the secretary of state of the State.

208

204. U.S. CONST. art. I, § 4, cl. 1.

205. See Ex parte Siebold, 100 U.S. 371, 392 (1879); Arizona v. Inter Tribal Council of Ariz.,

Inc., 570 U.S. 1, 7-8 (2013); Smiley v. Holm, 285 U.S. 355, 366 (1932).

206. U.S.

CONST. art. I, § 5, cl. 1.

207. See generally Act of July 25, 1866, Ch. 245, 14 Stat. 243. There is no parallel provision

for House elections—it appears Congress was responding to unique concerns of the disputes

that arose in state legislatures when they elected Senators before ratification of the

Seventeenth Amendment. See C

ONG. GLOBE, 39th Cong., 1st Sess. 1672 (1866).

208. 14 Stat. 243.

358 WILLIAM & MARY LAW REVIEW [Vol. 65:327

The language has been amended slightly to where it stands today:

“It shall be the duty of the executive of the State from which any

Senator has been chosen to certify his election, under the seal of the

State, to the President of the Senate of the United States,”

209

and

“[t]he certificate ... shall be countersigned by the secretary of state

of the State.”

210

Here, Congress created a federal duty and placed the responsibil-

ity to carry out that duty on state executives.

211

Congress generally

lacks the power to compel state executive officials to enforce federal

law.

212

Federal elections, however, are different. The Supreme Court

has recognized that state election officials owe a responsibility to the

United States and to congressional directives in the context of fed-

eral elections, which suggests that Congress has the authority un-

der the Elections Clause to compel state executives to act.

213

That congressionally-created duty becomes judicially enforceable.

Consider the Franken-Coleman dispute again. In 2009, the Min-

nesota Supreme Court accepted a petition from Al Franken alleging

that Governor Tim Pawlenty was obligated under this federal stat-

ute (among other things) to issue Franken a certificate of election.

214

The federally-created responsibility was enforceable in a state court

proceeding against the governor, even though, as mentioned earlier,

mandamus was inappropriate while the election contest was

pending.

215

Also in 2009, the Supreme Court of Illinois considered a man-

damus action from Roland Burris, who had been appointed by

209. 2 U.S.C. § 1a.

210. Id. § 1b.

211. See, e.g., Phillips v. Rockefeller, 321 F. Supp. 516, 521 (S.D.N.Y. 1970) (describing the

federally-created obligation of certifying the results), aff’d, 435 F.2d 976 (2d Cir. 1970)

(declining to reach the question of whether state officials were acting under color of federal

or state law).

212. See Anthony J. Bellia, Jr. & Bradford R. Clark, The International Law Origins of

American Federalism, 120 C

OLUM. L. REV. 835, 932-34 (2020).

213. See, e.g., Ex parte Siebold, 100 U.S. 371, 387 (1879); Branch v. Smith, 538 U.S. 254,

280 (2003) (Scalia, J.) (plurality opinion). The matter, however, has been the subject of some

scholarly debate. Compare Evan H. Caminker, Printz, State Sovereignty, and the Limits of

Formalism, 1997 S

UP. CT. REV. 199, 237-38, with Paul E. McGreal, Unconstitutional Politics,

76 N

OTRE DAME L. REV. 519, 553-54 (2001). For a summary of the debate, see Michael T.

Morley, The New Elections Clause, 91 N

OTRE DAME L. REV. ONLINE 79, 101-03 (2016).

214. Franken v. Pawlenty, 762 N.W.2d 558, 559-60 (Minn. 2009) (per curiam).

215. Id. at 570.

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 359

Governor Rod Blagojevich to a Senate seat vacated by President-

Elect Barack Obama.

216

Burris sued Secretary of State Jesse White

to secure his signature on Burris’s certificate of appointment.

217

The

court rejected the claim because this federal duty was inapplicable

in an instance where a Senate vacancy was filled by appointment

rather than election.

218

While Burris lost the claim, the court ac-

knowledged that the Governor or the Secretary of State did have

ministerial obligations under both federal and state law—but

obligations that would only arise in a different context.

219

These federal obligations appear to be rarely litigated. And why

should they be? Once the state processes of canvass, recount, audit,

and contest have finished, state officials promptly sign a certificate

of election for the winning candidate.

220

The rare breakdown in the

system, however, may mean that a winning candidate must sue to

enforce these federal obligations.

And if Congress can place an obligation on the state executive, it

is a corollary that state legislatures can place an obligation on state

executives in the administration of federal elections. The state

power and the congressional power to regulate the “manner” of hold-

ing elections are largely symmetrical.

221

B. Federal Obligations in Presidential Elections

In presidential elections, the issue of resolving disputes in the

states and transmitting reliable certified results to Congress is one

of great importance.

222

Indeed, ascertaining which authority from

216. Burris v. White, 901 N.E.2d 895, 896 (Ill. 2009).

217. Id. at 897.

218. Id. at 900.

219. Id. at 900-01.

220. Election Results, Canvass, and Certification, U.S.

ELECTION ASSISTANCE COMM’N,

https://www.eac.gov/election-officials/election-results-canvass-and-certification [https://perma.

cc/XR8V-VVCM].

221. See Smiley v. Holm, 286 U.S. 355, 366 (1932) (“The phrase ‘such regulations’ plainly

refers to regulations of the same general character that the legislature of the State is

authorized to prescribe with respect to congressional elections.”); see also U.S. Term Limits,

Inc. v. Thornton, 514 U.S. 779, 831-32 (1995).

222. Portions of this argument are drawn from testimony given before the United States

Senate Rules and Administration Committee. The Electoral Count Act: The Need for Reform:

Hearing before the S. Rules and Administrative Comm., 117th Cong. 2 (Aug. 3, 2022)

(statement of Derek Muller).

360 WILLIAM & MARY LAW REVIEW [Vol. 65:327

the state has the power to certify election results was at the heart

of controversies in the election of 1872

223

and of 1876.

224

Lawmakers

and the public are acutely aware of the doubt cast over the 2020

presidential election and threats from election officials to subvert

future presidential election results.

225

A presidential election is the

highest profile election, and it is deeply decentralized and depend-

ent on the actions of all the states working alongside each other in

a highly compressed timeframe. Special attention to how Congress

can create federal obligations in presidential elections is particu-

larly warranted.

Congress has fewer enumerated constitutional powers in presi-

dential elections than it has in congressional elections. Congress

lacks the express authority to “judge” the qualifications, elections,

and returns of presidential elections.

226

Unlike the Elections Clause,

which expressly empowers Congress to “make or alter” the rules for

congressional elections, the Constitution provides no express power

for Congress to regulate the “manner” of holding presidential

elections under the Presidential Electors Clause.

227

The Supreme

Court has at times suggested that Congress’s power over presiden-

tial elections is coextensive with its power over congressional

elections,

228

and Congress has often regulated the two types of

elections together.

229

And Congress, of course, can regulate the man-

ner of holding presidential elections under other constitutional

223. See Derek T. Muller, Electoral Votes Regularly Given, 55 GA. L. REV. 1529, 1547-48

(2021).

224. See W

ILLIAM H. REHNQUIST, CENTENNIAL CRISIS: THE DISPUTED ELECTION OF 1876,

99-100 (2004); see generally F

OLEY, supra note 9, at 117-49.

225. See, e.g., Election Subversion Threats: 2024 Battleground States, V

OTING RTS. LAB

(Feb. 21, 2022), https://votingrightslab.org/election-subversion-threats-2024-battleground-

states/ [https://perma.cc/G8GT-ZNH6].

226. U.S.

GEN. ACCT. OFF, GAO-01-470, THE SCOPE OF CONGRESSIONAL AUTHORITY IN

ELECTION ADMINISTRATION 2 (2001).

227. Note, “As the Legislature Has Prescribed”: Removing Presidential Elections from the

Anderson-Burdick Framework, 135 H

ARV. L. REV. 1082, 1089-91 (2022). Compare U.S. CONST.

art. II, § 1, cl. 2 (empowering the state to appoint, “in such Manner as the Legislature thereof

may direct, a Number of Electors”), with U.S.

CONST. art. I, § 4 cl. 1.

228. See Burroughs & Cannon v. United States, 290 U.S. 534, 544-46 (1934); Oregon v.

Mitchell, 400 U.S. 112, 124 (1970) (“It cannot be seriously contended that Congress has less

power over the conduct of presidential elections than it has over congressional elections.”).

229. See, e.g., 52 U.S.C. § 20502(2) (defining “Federal office” for regulating voter

registration as including both presidential and congressional elections, per 52 U.S.C.

§ 30101(3)).

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 361

provisions, such as when it is enforcing the Fifteenth Amendment’s

guarantee that “[t]he right of citizens of the United States to vote

shall not be denied or abridged by the United States or by any State

on account of race, color, or previous condition of servitude.”

230

Accordingly, federal rules that generally regulate the manner of

holding presidential elections may tread on less sure constitutional

footing.

231

But Congress has other enumerated powers in presidential

elections. First, it may “determine the Time of [choosing] the

Electors, and the Day on which they shall give their Votes; which

Day shall be the same throughout the United States.”

232

Second,

under both the original Article II and in language re-enacted in the

Twelfth Amendment, the electors in the states for president and

vice president submit their certificates of election to the “seat of the

government.”

233

Then, “[t]he President of the Senate shall, in the

Presence of the Senate and House of Representatives, open all the

Certificates, and the Votes shall then be counted.”

234

Finally, “[t]he

Congress shall have Power ... To make all Laws which shall be

necessary and proper for carrying into Execution the foregoing

Powers, and all other Powers vested by this Constitution in the

Government of the United States, or in any Department or Officer

thereof.”

235

The Time of Choosing Clause, the Counting Clause, and

the Sweeping Clause provide the constitutional authority for Con-

gress to impose obligations on state executives in the administra-

tion of federal elections.

The Time of Choosing Clause empowers Congress to fix the date

of holding a presidential election.

236

In conjunction with the Nec-

essary and Proper Clause, it empowers Congress to specify that the

rules for choosing electors must also be in place by that date, and

that Congress can require conclusion of the canvass and any con-

tests by a certain date.

237

A firm ending date ensures that states

230. U.S. CONST. amend. XV, § 1. See generally Voting Rights Act, 52 U.S.C. § 10101.

231. See generally Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 35-36 n.2 (2013)

(Thomas, J., dissenting).

232. U.S.

CONST. art. II, § 1, cl. 4.

233. See id. amend. XII.

234. Id. art. II, § 1, cl. 3, superseded by U.S.

CONST. amend. XII.

235. Id. art. I, § 8, cl. 18.

236. Id. art. II, § 1, cl. 4.

237. United States v. Classic, 313 U.S. 299, 320 (1941).

362 WILLIAM & MARY LAW REVIEW [Vol. 65:327

send the certificates of ascertainment of appointment of electors in

a timely fashion.

The original public meaning of the Counting Clause provides

unusually strong support for this scope of congressional authority.

Congress proposed the Twelfth Amendment in 1803, and it was

ratified in 1804.

238

The heart of the Amendment required presiden-

tial electors to vote for a president and a vice president on separate

ballots, as opposed to listing two preferred presidential candidates

at once.

239

But the Amendment also restated the Counting Clause,

which had been a part of the original Constitution.

240

By 1804, it

was accepted that Congress counted electoral votes in the joint

session.

241

In a 1792 law, Congress had instructed state executives

to certify presidential election results and transmit certificates of

election to electors

242

and set some rules for Congress to be in

session for the counting of votes.

243

That obligation—executives

“shall” certify and transmit election results—drew a rebuke from

Governor John Hancock of Massachusetts:

that Government applies itself to the People of the United States

in their natural individual capacity, and cannot exert any force

upon, or by any means control the officers of the State Govern-

ments as such: Therefore when an Act of Congress uses compul-

sory words with regard to any Act to be done by the Supreme

Executive of this Commonwealth I shall not feel myself obliged

238. See Speech in Favor of the Twelfth Amendment, 1803, GILDER LEHRMAN INST. AM.

IST., https://www.gilderlehrman.org/history-resources/spotlight-primary-source/speech-favor-

twelfth-amendment-1803 [https://perma.cc/VN7A-SQVZ].

239. U.S.

CONST. amend. XII.

240. Compare id. amend. XII, with U.S.

CONST. art. II, § 1, cl. 3.

241. See, e.g., 6 A

NNALS OF CONG. 1538-40, 1542-45 (1849) (describing the joint committee

of the House of Representatives and the Senate on the mode for examining votes, including

the appointment of tellers from each chamber, followed by the acts of the tellers who

“examined and ascertained the number of votes”).

242. Act of Mar. 1, 1792, Ch. 8, 1 Stat. § 3 (“That the executive authority of each state shall

cause three lists of the name of the electors of such state to be made and certified and to be

delivered to the electors.”).

243. Id. § 5 (“That Congress shall be in session ... and the said certificates, or so many of

them as shall have been received, shall then be opened, the votes counted, and the persons

who shall fill the offices of President and Vice President ascertained and declared, agreeably

to the constitution.”).

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 363

to obey them, because I am not, in my official capacity, amenable

to that government.

244

In contrast, even Senator Charles Pinckney, who expressed great

skepticism over Congress’s management of the counting of electoral

votes, approved of this exercise of authority.

245

Upon ratification of the Twelfth Amendment in 1804, Congress

enacted an updated statute to handle the transmission of electoral

results from the states.

246

Congress’s behavior, both before and

leading up to the Twelfth Amendment, provides unusually specific

context that strengthens this understanding of the scope of Con-

gress’s power. And Congress has continued to require executive

certification of state presidential election results ever since. Indeed,

the Electoral Count Act of 1887 placed similar obligations on the

executive.

247

A state’s executive has a “duty” to send to Congress the

ascertainment of appointment of presidential electors, including the

names of the electors who received votes and their vote totals.

248

The

executive also must send copies of the certificate to the winning

presidential electors.

249

Ordinarily, Congress relies on each state’s ordinary processes to

get election results to Congress. After the election, the state final-

izes the canvass of the votes, and it may audit or recount results to

secure a more accurate figure.

250

There may even be an election

contest filed in state court.

251

But by the end, a canvassing board or

244. Hearing Before the S. and H. of Rep. (Mass. Nov. 12, 1792) (statement of John

Hancock).

245. 10 A

NNALS OF CONG. 126-28 (1851) (“Congress ha[s] no right to pass the bill before

you, or to legislate at all further on the subject[ ] than they have done by the act of 1792.”); id.

at 136 (“[W]ill not our citizens be inclined to suppose that the act of 1792 was a proper one,

and that there was more probability of its provisions being in a temperate and unbiased

conformity to the Constitution, than any act which could be passed at this time?”).

246. An Act supplementary to the act intituled [sic] Act of Mar. 26, 1804, Ch. 50, 1 Stat. § 3

(1904) (“[T]he executive authority of such state shall cause six lists of the names of the

electors for the state, to be made and certified, and to be delivered to the said electors.”).

247. 3 U.S.C. § 5.

248. Id.

249. Id.

250. See State Election Canvassing Timeframes and Recount Thresholds, N

AT’L ASS’N

SEC’YS STATE (Sept. 2022), https://www.nass.org/node/2455 [https://perma.cc/4TS9-JEVD].

251. See, e.g., Marc Levy, Pennsylvania High Court Rejects Lawsuit Challenging Election,

NEWS (Nov. 28, 2020), https://apnews.com/article/election-2020-joe-biden-legislature-

pennsylvania-lawsuits-8cb524364fe641a3fca635a2a5a925ef [https://perma.cc/T3YM-47LM].

364 WILLIAM & MARY LAW REVIEW [Vol. 65:327

some election authority certifies the results.

252

That goes on to the

executive, who sends certificates of election to the presidential

electors who won their offices.

253

The executive also sends the

certificates to Congress to identify the results in the state, including

the winners.

254

After that, the electors meet, vote, and the electors

send their own certificates to Congress.

255

This process is complicated. It has several different stages, which

may vary from state to state. And it may break down. Ideally,

Congress gets one certificate of ascertainment of the winner of the

state’s popular votes, followed by one set of returns from the electors

of the state. That has been the outcome in every election from 1876

to 2020 (with one exception, Hawaii in 1960).

256

After a series of recent abuses of filing objections to certified

election results, Congress enacted the Electoral Count Reform Act

in 2022 to make objections more difficult.

257

The Electoral Count

Reform Act raises the threshold for objections in Congress, requires

certificates of ascertainment of appointment of electors to be sub-

mitted by the governor by a certain date, treats certificates as

binding in Congress, and gives priority to certificates required to be

issued or revised by judicial relief.

258

If Congress is constraining itself by making it more difficult to

object to—and to reject—the electoral votes from the states,

Congress also needs to ensure that it has the most reliable results

from the states. The tradeoff for giving Congress less discretion in

examining presidential election results is a need for greater confi-

dence in those results from the states.

259

One of the more daunting

252. See Election Results, Canvass, and Certification, supra note 220.

253. What Is Election Certification?, E

LECTION ASSISTANCE COMM’N (Feb. 2022),

https://www.eac.gov/sites/default/files/electionofficials/postelection/Guide_to_Election_Cert

ification_EAC.pdf [https://perma.cc/T58G-TPTK].

254. Id.

255. Id.

256. See Herb Jackson, What Happens When a State Can’t Decide on Its Electors, R

OLL

CALL (Oct. 26, 2020, 10:30 AM), https://rollcall.com/2020/10/26/we-the-people-what-happens-

when-a-state-cant-decide-on-its-electors/ [https://perma.cc/2F38-8ABQ].

257. See Muller, supra note 223, at 1542-44.

258. Congress included the Electoral Count Reform and President Transition Improve-

ment Act in its omnibus appropriations bill in Consolidated Appropriations Act, 2023. Pub.

L. No. 117-328, Division P, 136 Stat. 4459 (2022).

259. See, e.g., Colin Jones, Robert M. Stein, Lonna Atkeson, M.V. Hood III & Mason Reece,

Measuring Election Confidence in 2020, MIT

ELECTION DATA & SCI. LAB (Nov. 16, 2021),

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 365

aspects of Electoral Count Act reform is securing finality from the

states.

The Electoral Count Reform Act requires states to finalize the

results of their elections at least six days before electors meet.

260

provides that the certificate with the state executive’s signature is

the presumptively appropriate certificate to count.

261

And what if

state executives fail to sign a certificate of election or transmit

results to Congress? The Act created a clear legal duty on the

executive.

262

That legal duty can be readily enforceable in manda-

mus proceedings in state court.

263

V. THE UNIQUE STRENGTHS OF MANDAMUS

State courts can enforce the duties placed upon election officials,

whether those duties arise from state law or federal law. But this

lengthy discussion about mandamus raises a separate question:

what benefit does mandamus offer over ordinary injunctive relief?

Older treatises note differences in the two remedies’ issuing au-

thorities, proper subject, and purpose.

264

But more recently, courts

may use terms like mandamus and mandatory injunctions inter-

changeably.

265

And mandamus often works in a narrower set of

circumstances than injunctive relief, which suggests it might be less

valuable than injunctive relief. For instance, a writ of mandamus

can only be brought against a public official, while there is no such

limitation for injunctive relief.

266

And courts sometimes emphasize

https://electionlab.mit.edu/articles/measuring-election-confidence-2020 [https://perma.cc/

Z9NG-SRP5].

260. 3 U.S.C. §§ 5-6.

261. Id. §§ 5, 6, 15.

262. Id. § 6.

263. Importantly, the Electoral Count Reform Act creates no new federal cause of action.

Id. § 13 (providing that if a state executive fails to deliver a certificate of election results to

the federal government, the default solution is to demand the certificate from a district judge).

The most common forum to resolve state election disputes will likely remain state court.

264. See Kenneth Culp Davis, Mandatory Relief From Administrative Action in the Federal

Courts, 22 U.

CHI. L. REV. 585, 589 (1955) (summarizing an 1836 treatise by Justice Joseph

Story explaining the difference between mandamus and mandatory injunctive relief).

265. See, e.g., McCarthy v. Watt, 89 F. Supp. 841, 842 (D. Mass. 1950) (“A mandatory

injunction is in effect equivalent to a writ of mandamus and should be governed by like

considerations.”); Noem v. Haaland, 542 F. Supp. 3d 898, 906 (D.S.D. 2021) (“The State seeks

what is considered a mandatory preliminary injunction, akin to a writ of mandamus.”).

266. See, e.g., McNulty v. Nat’l Mediation Bd., 18 F. Supp. 494, 504 (N.D.N.Y. 1936) (“A

366 WILLIAM & MARY LAW REVIEW [Vol. 65:327

that while an injunction can be used to either prevent action or

compel it, mandamus can only be used to compel action.

267

But mandamus can offer some decided advantages to injunctive

relief in many states: original jurisdiction in state supreme courts,

and the evidence needed to succeed on the merits. In short-fuse

election litigation, these differences make mandamus uniquely valu-

able over other remedies, including injunctive relief.

A. Original Jurisdiction in State Supreme Courts

State law routinely grants state supreme courts original jurisdic-

tion in mandamus.

268

Indeed, as originally conceived at the Found-

ing, many state supreme courts recognized that the highest court of

a state must have the power to issue the writ of mandamus.

269

mandamus originated from the high power of the King’s Bench at

common law, then the “supreme” courts in each state would hold

mandatory injunction is like a mandamus in all essential respects, though the latter is

directed to a public officer to compel him to perform an administrative act as to which he has

no discretion.”).

267. See, e.g., Smoker v. Bolin, 333 P.2d 977, 978 (Ariz. 1958) (“It has been held many times

that the term ‘mandamus’ applies only to a proceeding brought to compel the performance of

an act, and not to one to restrain action; mandamus is not a substitute for a negative injunc-

tion.”) (citations omitted).

268. Some state constitutions grant original jurisdiction in mandamus to the state supreme

court. See, e.g., C

AL. CONST. art. VI, § 10 (“The Supreme Court, courts of appeal, superior

courts, and their judges have original jurisdiction in habeas corpus proceedings. Those courts

also have original jurisdiction in proceedings for extraordinary relief in the nature of

mandamus, certiorari, and prohibition.”); F

LA. CONST. art. V, § 3(b) (“The supreme court ...

[m]ay issue writs of mandamus and quo warranto to state officers and state agencies.”); I

DAHO

CONST. art. V, § 9; ILL. CONST. art. VI, § 4(a); KAN. CONST. art. 3, § 3; NEB. CONST. art. V, § 2;

N.M.

CONST. art. VI, § 3; OHIO CONST. art. IV, § 2(B)(1); OR. CONST. art. VII, § 2; VA. CONST.

art. VI, § 1; W

ASH. CONST. art. IV, § 4; W.VA. CONST. art. VIII, § 3; WYO. CONST. art. 5, § 3.

Other states accomplish the same result by statute. See, e.g., H

AW. REV. STAT. § 602-5(a)

(West 2022) (“Except as otherwise provided, the supreme court shall have ... original

jurisdiction in all questions arising under writs directed to courts of inferior jurisdiction and

returnable before the supreme court, or if the supreme court consents to receive the case

arising under writs of mandamus directed to public officers to compel them to fulfill the duties

of their offices; and such other original jurisdiction as may be expressly conferred by law.”);

E. REV. STAT. ANN. tit. 14, § 5301 (West 2023) (“The Supreme Judicial Court and the

Superior Court shall have and exercise concurrent original jurisdiction in proceedings in

habeas corpus, prohibition, error, mandamus, quo warranto and certiorari.”); V

T. STAT. ANN.

tit. 4, § 2(b) (West 2022).

269. Pfander, supra note 20, at 1534-35.

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 367

similar power.

270

Professor Zachary Clopton has recently catalogued

the impressive array of state constitutional provisions that empower

state supreme courts to exercise original jurisdiction in man-

damus.

271

In contrast, state supreme courts may be expressly denied orig-

inal jurisdiction in injunctive cases.

272

Ohio, for instance, expressly

deprives the state supreme court of jurisdiction in declaratory

judgment or prohibitory injunction cases.

273

While injunctive relief and mandamus may be functionally inter-

changeable in many contexts, the unusual privilege given to state

supreme courts in mandamus makes it a powerful remedy.

274

There

is no need for the potentially lengthy process of filing a claim in a

lower court with one or more rounds of appeal in a time-sensitive

manner.

275

Consider again the Otero County, New Mexico dispute.

The New Mexico Supreme Court received a petition for writ of

mandamus, then issued its judgment in twenty-four hours, without

additional layers of state court review.

276

Original jurisdiction in

state supreme courts allows an expedited final judgment.

Original jurisdiction in the state supreme court is not always

guaranteed, even with an express grant of jurisdiction. In Arizona,

for instance, original jurisdiction in mandamus for claims against

state officers is “highly discretionary.”

277

This deference relates to

the fact that courts in mandamus cases exercise discretion over

whether to grant relief at all.

278

Relatedly, state supreme courts

270. Id.

271. Zachary D. Clopton, Power and Politics in Original Jurisdiction, 90 U.

CHI. L. REV. 1,

17-18 (forthcoming 2023).

272. See, e.g., Walsh v. R.R. Comm’n, 107 P.2d 611, 613 (Cal. 1940) (noting that the

Supreme Court of California “has no jurisdiction over original applications for declaratory

relief or for injunctive relief”).

273. State ex rel. Ethics First—You Decide Ohio Pol. Action Comm. v. DeWine, 66 N.E.3d

689, 692-93 (Ohio 2016) (per curiam) (“[I]f a complaint seeks to prevent action, then it is

injunctive in nature, and the court has no jurisdiction; if it seeks to compel action, then the

court does have jurisdiction to provide relief in mandamus.”).

274. Cf. Clopton, supra note 271, at 27-28 (noting that adjudication may be faster but that

factfinding in certain cases may be slower if the state supreme court is exercising original

jurisdiction in disputes that require factfinding).

275. See id. at 37.

276. See supra note 159 and accompanying text.

277. Forty-Seventh Legislature v. Napolitano, 143 P.3d 1023, 1026 (Ariz. 2006) (en banc);

Brewer v. Burns, 213 P.3d 671, 674 (Ariz. 2009) (en banc).

278. See supra note 86 and accompanying text.

368 WILLIAM & MARY LAW REVIEW [Vol. 65:327

typically do not weigh in for factual disputes that may arise in

mandamus cases.

279

Those cases are remanded for district courts to

evaluate.

280

Recall how some courts in exceptional cases conclude

that mandamus relief may lie for certain “discretionary” acts.

281

Evaluating an egregious abuse of discretion requires factual

development and examination.

282

State supreme courts are unlikely

to grant original writ of mandamus if the rare dispute over abuse of

discretion is presented.

283

Original jurisdiction allows for expedited review in the state

supreme court without the delays that attend appeals.

284

In cases

where more factual development is needed and the case must take

a slower pace, lower courts can consider either mandamus, injunc-

tive relief, or declaratory relief in the appropriate cases.

285

It is

worth noting that mandamus relief may still be available in the

lower courts, too. Original jurisdiction is reserved for only the most

egregious acts of election officials: those circumstances where it is

obvious from the face of the record that the official has violated a

279. See, e.g., Round Hill Gen. Improvement Dist. v. Newman, 637 P.2d 534, 536 (Nev.

1981).

280. See, e.g., id. (denying petition for writ of mandamus because “disputed factual issues”

regarding whether a party “manifestly abused the discretion granted by” statute was left to

the trial court).

281. See supra notes 86-88 and accompanying text.

282. See, e.g., Round Hill, 637 P.2d at 536.

283. Cf. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (quoting Johnson v. Fourth Ct.

of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)) (“Mandamus issues only to correct a clear abuse

of discretion or the violation of a duty imposed by law when there is no other adequate remedy

by law.”).

284. The question of the jurisdiction of the Supreme Court of the United States out of a

state supreme court order in mandamus is beyond the scope of this Article. But briefly, the

Supreme Court would not have jurisdiction over petitions for certiorari from state supreme

courts in the typical state law case. If the state litigation relied exclusively on state law, there

would be no federal issue to raise before the Supreme Court. See 28 U.S.C. § 1257(a); see also

Murdock v. City of Memphis, 87 U.S. (1 Wall.) 590, 626 (1874). If a party raised a federal

issue, such as an argument that the failure to certify an election was tantamount to a vio-

lation of due process, the Supreme Court could hear such an issue. See Edward B. Foley, Due

Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of

Elections, 84 U.

CHI. L. REV. 655, 731 (2017). In cases where a federally-created duty is at

issue, see supra Part IV, it may also be possible for the Supreme Court to hear decisions from

state supreme courts seeking a state remedy in mandamus, to the extent one could classify

the claim as a “right [or] privilege ... specially set up or claimed under ... statutes of ... the

United States.” 28 U.S.C. § 1257(a).

285. See, e.g., Malott v. Summerland Sanitary Dist., 270 Cal. Rptr. 3d 76, 81 (Ct. App.

2020) (finding that even a combination of these remedies may be appropriate in certain cases).

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 369

clear legal duty.

286

And mandamus is a powerful tool when combined

with this unique role of the state supreme court.

B. Streamlined Hearings and Legal Elements

Additionally, in some circumstances, there are more conditions

placed upon injunctive relief than mandamus. To win injunctive

relief, a moving party today must typically demonstrate an irrepara-

ble injury, a likelihood of success on the merits, that the potential

injury in the absence of injunction outweighs any harm the injunc-

tion might cause other parties, and that an injunction not be

injurious to the interest of the public.

287

Mandatory injunctions are

“disfavored,” but that legal requirement appears to be a less

significant barrier to relief in recent years.

288

Admittedly, it is hard

to say that these elements are any more onerous than the require-

ments of mandamus, which requires proof of a public official

violating a clear legal duty. Indeed, the condition of a violation of a

clear legal duty can be more difficult to demonstrate than the test

for injunctive relief.

289

And judicial relief looks similar under either

form of action. Judgment in mandamus directs an official to comply

with a legal duty, which looks like the judgment in a mandatory

injunction case directing an official to comply with a legal duty.

290

286. In re Nat’l Nurses United, 47 F.4th 746, 752 (D.C. Cir. 2022) (explaining that courts

usually reserve mandamus relief for particularly egregious failures to act in accordance with

a clear legal duty).

287. See Samuel L. Bray, The Supreme Court and the New Equity, 68 V

AND. L. REV. 997,

1024-27 (2015).

288. Compare O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973,

975 (10th Cir. 2004) (en banc) (per curiam) (identifying mandatory injunctions as a “specially

disfavored” type of preliminary injunction), with NAACP v. U.S. Postal Serv., 496 F. Supp. 3d

1, 20 (D.D.C. 2020), and NAACP v. U.S. Postal Serv., No. 20-cv-2295, 2020 WL 6441317, at

*1 (D.D.C. Oct. 27, 2020) (issuing injunction and ensuing order detailing the activities the

United States Postal Service must perform ahead of the 2020 election without reference to the

fact that mandatory injunctions are specially disfavored). In an earlier era, federal district

courts recognized that they lacked original jurisdiction over mandamus, see supra note 62 and

accompanying text, and federal courts were divided over whether they could issue mandatory

injunctions that looked like mandamus. See Case Comment, Mandatory Injunction

Jurisdiction: Johnson v. Interstate Power Co., 14 S

TAN. L. REV. 167, 169-70 (1961).

289. See, e.g., Chapman v. Berks Cnty. Bd. of Elections, No. 355, 2022 WL 4100998, at *30

(Pa. Comm. Ct. Aug. 19, 2022) (granting injunctive relief but denying mandamus in dispute

over whether absentee or mail-in ballot envelopes needed to include date information),

overruled in part by Ball v. Chapman, 289 A.3d 1, 22 (Pa. 2023).

290. See Howard W. Brill, The Citizen’s Relief Against Inactive Federal Officials: Case

370 WILLIAM & MARY LAW REVIEW [Vol. 65:327

But some procedural benefits do attach to mandamus. First,

courts do not formally consider elements like the balance of the

equities or the public interest in mandamus cases.

291

Such factors

may seep into the discretionary questions that courts face when

deciding whether to issue mandamus.

292

But at an elemental level,

mandamus in the right case may be easier to obtain once a party

establishes that an official is refusing to perform a clear legal duty,

and it may be superior to injunctive relief.

The legal elements for mandamus are much better suited for

courts in election disputes than the legal elements for injunctive

relief. For one, the balance of the equities in injunctive relief pits

one side’s hardship against another.

293

In an election dispute, the

court is placed in the difficult position of weighing what is effec-

tively a zero-sum balancing between two contesting political oppo-

nents. For another, the “public interest” places the court in the

unenviable position of appearing to pick which political victor would

favor the public interest. No such confrontation arises in manda-

mus—the relief simply runs to the petitioner once the right has been

established.

294

Second, peremptory mandamus can issue without a hearing.

Judges have disputed the circumstances in which peremptory man-

damus is appropriate without a hearing.

295

But there is no question

they have the power to do so.

296

In contrast, in injunctive cases,

courts typically distinguish between temporary restraining orders

or ex parte injunctions that do not require a hearing because they

Studies in Mandamus, Actions “In the Nature of Mandamus,” and Mandatory Injunctions, 16

KRON L. REV. 339, 364-65 (1983) (explaining how the similar results between the two

remedies caused courts to describe them interchangeably).

291. See discussion supra Part I.C. (describing the usual elements of mandamus).

292. See supra notes 86-91 and accompanying text.

293. Jared A. Goldstein, Equitable Balancing in the Age of Statutes, 96 V

A. L. REV. 485, 487

(2010).

294. See Bray, supra note 67, at 568.

295. See, e.g., Reprod. Freedom for All v. Bd. of State Canvassers, 978 N.W.2d 854, 860

(Mich. 2022) (mem.) (Zahra, J., dissenting) (calling for oral argument in mandamus action

while acknowledging, “I understand my colleagues’ desire to decide this question forthwith

without the benefit of oral argument, given the very short time that exists between the filing

of this action for mandamus and the date the finalized ballot must be forwarded to printers

for statewide production”).

296. See supra note 94 and accompanying text.

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 371

last for a limited duration, and permanent injunctions that last

indefinitely and ordinarily require a hearing.

297

In the Otero County dispute, the New Mexico Supreme Court did

not hold an evidentiary hearing.

298

It issued an order from the clear

facts presented to the Court.

299

A verified complaint by the state and

the record of the proceedings before the Board in Otero County

clearly demonstrated that the election officials had no dispute of any

fact and no basis in law to refuse to perform their duty.

300

Candidly,

this case appears to be unusual in that the opposing party was

never given the opportunity to file a brief or attend a hearing, much

less present evidence.

301

Peremptory mandamus is disfavored in the

first instance because alternative mandamus gives the official the

opportunity to show cause and explain herself.

302

Issuing ex parte

peremptory mandamus is a power that a court should exercise only

with “great caution” in those places where a great hardship is

present.

303

In Otero County, New Mexico argued that the Board’s

delay threatened statewide certification deadlines fixed by statute

elsewhere.

304

Finally, if mandamus is issued against an official who

lacked the opportunity for a hearing, that official could request a

hearing or reconsideration to ensure that due process is not

violated.

305

In a 2022 dispute in Arizona, the Board of Supervisors of Cochise

County delayed certifying the state’s election results.

306

The Secre-

tary of State and a group of voters both filed an action in trial court

seeking mandamus.

307

At a hearing, attorneys attempted to call

297. See, e.g., Md. Comm’n on Hum. Rels. v. Downey Commc’ns, Inc., 678 A.2d 55, 66-67

(Md. Ct. Spec. App. 1996); Cramer v. Metro. Fed. Sav. & Loan Ass’n, 192 N.W.2d 50, 51-52

(Mich. Ct. App. 1971) (per curiam).

298. See supra note 155 and accompanying text.

299. See supra note 155 and accompanying text.

300. See supra notes 155-59 and accompanying text.

301. See supra notes 155-59 and accompanying text.

302. See supra note 94 and accompanying text.

303. See, e.g., Home Ins. Co. v. Scheffer, 12 Minn. 382, 384-85 (Minn. 1867); see also State

ex rel. Platte Valley Irr. Dist. v. Cochran, 297 N.W. 587, 589 (Neb. 1941).

304. See Emergency Verified Petition for Writ of Mandamus to Compel Certification of

Election Results, supra note 155, at 3-4.

305. Cf. Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950).

306. 12 News, Cochise County Officials Court Hearing About Lawsuit Over Refusal to

Certify Election, Y

OUTUBE (Dec. 1, 2022), https://www.youtube.com/watch?v=vd6c2UsPKa0

[https://perma.cc/UG22-MJW4].

307. Id.

372 WILLIAM & MARY LAW REVIEW [Vol. 65:327

witnesses and present evidence.

308

The trial court asked whether

that was necessary given the clarity of the existing record.

309

The

attorneys, sensing the hints from the judge, opted not to present any

new evidence.

310

Third, the standards for staying injunctive relief do not necessar-

ily extend to staying mandamus relief. Consider the so-called

“Purcell principle.”

311

The Supreme Court’s decision in Purcell v.

Gonzalez in 2006 warned lower courts to consider the facts “specific

to election cases” when facing requests for injunctive relief just

before an election.

312

Courts should avoid “voter confusion and

consequent incentive to remain away from the polls” when issuing

orders that could affect elections, especially conflicting orders.

313

“As

an election draws closer, that risk will increase.”

314

Justice Brett

Kavanaugh recently opined on Purcell in a case in which he sup-

ported a stay of a lower court injunction affecting legislative maps

weeks ahead of a primary election.

315

He explained that Purcell

should stand for the proposition that there should be a stay of

injunctive relief close in time to an election unless a plaintiff can

show “(i) the underlying merits are entirely clearcut in favor of the

plaintiff; (ii) the plaintiff would suffer irreparable harm absent the

injunction; (iii) the plaintiff has not unduly delayed bringing the

complaint to court; and (iv) the changes in question are at least

feasible before the election without significant cost, confusion, or

hardship.”

316

Purcell has taken on a life of its own in the federal courts, which

has garnered its fair share of criticism and commentary.

317

Some

308. Id.

309. Id.

310. Id.

311. Richard L. Hasen, Reining in the Purcell Principle, 43 F

LA. ST. U. L. REV. 427, 428

(2016).

312. Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (per curiam).

313. Id.

314. Id. at 5.

315. Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (mem.) (Kavanaugh, J., concurring in

grant of application for stays).

316. Id. at 881.

317. See, e.g., Stephen I. Vladeck, Emergency Relief During Emergencies, 102 B.U.

L. REV.

1787, 1794 n.29 (2022); Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U.

L. REV. 941,

945-49 (2021).

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 373

state courts have followed suit.

318

But a couple of jurisdictions have

seized on an important limitation of Purcell. Supreme courts in Ohio

and the Virgin Islands have each concluded that Purcell does not

apply outside the injunctive context, with Ohio specifically noting

that it does not apply in mandamus.

319

These courts, of course, were

free to ignore Purcell as applied to state law. Instead, they chose to

distinguish it. The Supreme Court of Ohio noted that the concerns

for injunctive relief and Purcell did not map onto the elements for

mandamus relief.

320

A clear legal duty, for instance, suggests a

stronger case for the plaintiff than a mere “likelihood” of success,

and it is a reason to counsel against staying the judgment.

321

Admittedly, the concerns about Purcell are about pre-election

controversies, not necessarily post-election controversies. But it

highlights the fact that some courts have been willing to consider

the distinctions between injunctive relief and mandamus in ways

that suggest mandamus has an advantage.

Fourth, the political question doctrine may not apply to manda-

mus. Some states conclude that courts lack the power to hear

political questions in election disputes in equity—but because

mandamus is a legal remedy, no such barrier exists.

322

In Georgia,

for instance, there is an extensive body of precedent that “courts of

equity will not interfere to protect a purely political right.”

323

But

318. See, e.g., Moore v. Lee, 644 S.W.3d 59, 65 (Tenn. 2022); League of United Latin Am.

Citizens v. Pate, 950 N.W.2d 204, 216 (Iowa 2020) (per curiam); Jones v. Sec’y of State, 239

A.3d 628, 631 (Me. 2020) (per curiam).

319. State ex rel. DeMora v. LaRose, No. 2022-0661, 2022 WL 2285935, at *8 (Ohio June

24, 2022) (per curiam); Bryan v. Fawkes, 61 V.I. 416, 468 (2014).

320. DeMora, 2022 WL 2285935, at *8. But see id. at *26 (DeWine, J., concurring in part

and dissenting in part) (calling the majority’s distinction between injunctive relief and

mandamus relief “laughable” in this context because the factors for both forms of relief

“align”).

321. Cf. Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (mem.) (Kavanaugh, J., concurring)

(suggesting Purcell is not appropriate if the plaintiff’s claim is “entirely clearcut”).

322. See, e.g., Fletcher v. Tuttle, 37 N.E. 683, 688-89 (Ill. 1894) (per curiam) (“Where the

established distinctions between equity and common-law jurisdiction are observed, injunction

and mandamus are not correlative remedies, in the sense of being applicable to the same

subject-matter, the choice of a writ to be resorted to in a particular case to depend upon

whether there is an excess of action to be restrained or a defect to be supplied. The two writs

properly pertain to entirely different jurisdictions, and to different classes of proceedings,

injunction being the proper writ only in cases of equitable cognizance, and mandamus being

a common-law writ, and applicable only in cases coming within the appropriate jurisdiction

of courts of common law.”).

323. Bullard v. Culpepper, 11 S.E.2d 19, 20 (Ga. 1940) (citing Avery v. Hale, 145 S.E. 76,

374 WILLIAM & MARY LAW REVIEW [Vol. 65:327

mandamus relief against the actions of public officials, even with

“political overtones,” remains available.

324

In short, mandamus is designed to move quickly. Admittedly, if

the case is so clear that mandamus should issue, one may be hard

pressed to find a balance of the equities where injunctive relief

would be denied. But as a practical matter, the expedited proceed-

ings in state courts with no need for additional fact-finding make

mandamus uniquely situated for time-sensitive election disputes.

There is a potential risk in overstating the advantages of man-

damus. It could place additional pressure on litigants to seek out

mandamus over other forms of relief, encourage state supreme

courts to exercise jurisdiction immediately rather than allow “per-

colation” in the lower courts of factual disputes,

325

and risk basic due

process guarantees through orders without hearings. Mandamus

may offer promise as much as peril. For this reason, it is important

for courts to remain vigilant in protecting mandamus from over-

reach. Mandamus remains effective as a tool in limited contexts,

and perhaps only because it remains appropriately circumscribed.

VI.

THE POTENTIAL LIMITATIONS OF MANDAMUS

Mandamus is not a panacea. Like any remedy, it will have its lim-

itations. But those limitations are hardly fatal to its usefulness.

Instead, mandamus applies in a set of election subversion cases and

can offer unique value.

A. Potential Limitations Against the Governor

In states, there are potential separation of powers concerns im-

plicated if the state supreme court must order the governor to

perform a task. No such issue arises with inferior officers, but

77 (Ga. 1928)); Thompson v. Talmadge, 41 S.E.2d 883, 889-90 (Ga. 1947).

324. Bibb Cnty. v. Monroe Cnty., 755 S.E.2d 760, 765-66 (Ga. 2014) (citing Owens v. City

of Greenville, 772 S.E.2d 755 (2012)).

325. See Clopton, supra note 271, at 29-30 (describing how common questions can

“percolate” in lower courts when appellate courts do not have original jurisdiction over them);

see also Michael Coenen & Seth Davis, Percolation’s Value, 73 S

TAN. L. REV. 363, 416-19

(2021) (admitting some value in lower court autonomy and limiting intervention by the

Supreme Court of the United States).

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 375

governors are different. Edward J. Myers summarized the conflict

in 1905:

The question whether the courts have the power to issue the

writ of mandamus against the chief executive of a state to

compel the performance of a duty imposed upon him by law, has

been answered in two irreconcilable lines of decision—the one

being that the Governor is not answerable to the writ to compel

the performance of his duty, be it either discretionary or

ministerial in its character, the other, that he is liable to the

writ to compel the performance of duties purely ministerial in

nature.

326

The conflict does not appear to arise with other constitutional

officers—even for executive offices created by the state constitu-

tion.

327

That means mandamus is unquestionably available against

the Secretary of State or other state or local election officials. The

only potential conflict appears if the governor is the party who

refuses to act.

But some state judicial decisions have moved in the direction of

recognizing that mandamus could be available against the governor

for ministerial duties.

328

And this complication of the separation of

powers arises only in the context of state or local elections. In

federal elections, once Congress has placed an affirmative duty on

a state official, the state judiciary’s ordinary separation of powers

concerns disappear.

329

While there is no affirmative duty to transmit

326. Edward J. Myers, Mandamus Against a Governor, 3 MICH. L. REV. 631, 634 (1905); see

also F

ERRIS & FERRIS, supra note 21, § 284 (“There is some conflict of authority as to whether

mandamus can issue to compel the governor of a state to perform any part of his official

duties.”).

327. See, e.g., People ex rel. Sutherland v. Governor, 29 Mich. 320, 321-24 (1874) (Cooley,

J.) (acknowledging that the legislature could have given duties to inferior officers instead of

the governor, which would not raise the same separation of powers concerns); see also State

ex rel. Patton v. Houston, 4 So. 50, 52 (La. 1888); Kuechler v. Wright, 40 Tex. 600, 613-14

(1874).

328. See, e.g., Gantenbein v. West, 144 P. 1171, 1174-75 (Or. 1914) (en banc) (“[T]here is

no doubt that the Governor will cheerfully and without question issue the certificate when-

ever his right to do so is clearly defined by the courts; but there is also no doubt that, in cases

of this character, where the duties imposed upon the executive are merely ministerial,

mandamus will lie to compel their performance.”); Martin v. Ingham, 17 P. 162, 165 (Kan.

1888).

329. See supra Part IV.

376 WILLIAM & MARY LAW REVIEW [Vol. 65:327

election results in House elections, duties in Senate and Presiden-

tial elections do exist.

330

And as long as most election administration

responsibilities remain the responsibility of inferior officers in state

and local elections, the circumstances in which a separation of

powers problem might arise are few.

B. Potential Incentives for Grandstanding

If election officials simply refuse to certify election results because

there is a judicial backstop that would do the job for them, will cases

like these incentivize more bad behavior and require additional

judicial intervention? There is a risk of a kind of moral hazard.

331

The more that mandamus is raised as a tool to be used against

recalcitrant election officials, the more enticing it will be for local

election officials to ignore their duties. After all, why not simply let

the judiciary certify the election or perform those other ministerial

duties?

To begin, it may simply be a necessary evil. Mandamus must

issue because election responsibilities must be fulfilled. We rely on

election officials to follow their responsibilities, and in the rare in-

stances in American history where they have not, the judiciary steps

in.

Recent instances of mandamus in election cases do not yet

suggest that election officials are entirely abdicating their responsi-

bilities to courts. New Mexico and Arizona officials promptly com-

plied in 2022 after the courts issued their first orders.

332

Election

officials instead seem satisfied to refuse to act, wait for a court to

direct them to act, and then follow the court order. Courts have not

had to carry out consequences for failure to obey court orders. That

said, the potential increase in election officials refusing to carry out

their responsibilities and awaiting a court order remains a cause for

330. Congress’s power to judge the elections and returns of its own members reduces the

concerns that it lacks any mechanisms to resolve election disputes. See generally Derek T.

Muller, Scrutinizing Federal Electoral Qualifications, 90 I

ND. L.J. 559 (2015). Presidential

elections are much more complicated, and for that reason Congress has crafted rules to

coordinate the transmission of election returns across all the states for Congress to count. See

supra Part IV.B.

331. See Tom Baker, On the Genealogy of Moral Hazard, 75 T

EX. L. REV. 237, 238-40

(1996).

332. See supra notes 165-70, 306-10 and accompanying text.

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 377

concern. But the problem is no different than the risk posed by any

invitation of increased judicial involvement.

Nevertheless, there is a different kind of problem at issue:

grandstanding. Public officials have made public displays of their

refusal to accept election results. There is a risk that grows worse

once election officials know that the judiciary is there as some kind

of “enemy” to their cause, a body that may try to impose its will on

an election. But it is a reason to embrace minimally intrusive

solutions when election officials defy mandamus. Rather than

mechanisms that may exacerbate grandstanding—like contempt,

where an election official can play the martyr by highlighting an

arrest—are the best mechanisms try to reach the desired result as

quickly and quietly as possible. Relying on mechanisms like Rule 70

allows courts to efficiently resolve election disputes without inviting

grandstanding.

C. Restricted to Discretionary Acts

One major limitation for mandamus is that it does not apply to

discretionary acts, with rare exceptions.

333

But as this Article open-

ed, mandamus is useful for a particular kind of election problem:

election subversion, or post-election actions by election officials that

defy the accepted legal procedures for resolving election disputes to

benefit the candidate who lost by refusing to certify the winner. It

can be useful in other contexts, as described earlier, when it comes

to petitioning or ballot access challenges.

334

For the particular

concern of election subversion, however, its most important use is

for non-discretionary acts. After the canvassing of an election is

complete, there is rarely discretion left for election officials. They

are expected to certify the results and issue certificates of election

consistent with those results. Mandamus is a powerful tool to tie up

the loose ends of an election.

Mandamus may not be useful for discretionary acts left to election

officials, but that simply means mandamus is not available to

provide prompt and expedited relief when discretionary acts are at

issue. Challenges to election officials who abuse their discretion go

333. See supra notes 76-77, 277-83 and accompanying text.

334. See supra Part II.A.

378 WILLIAM & MARY LAW REVIEW [Vol. 65:327

through the procedures for parties seeking injunctive or declaratory

relief. It simply takes more time. And these other tools are more

useful in contexts that one might not necessarily label “election

subversion,” but other acts of election officials who may drag their

feet, attempt to undermine the legislature’s preferred policies, or

seek to adversely affect voters’ behavior.

335

D. Dependent on Reliable State Courts

Embedded within this discussion is an assumption: state courts

are a reliable place to handle these election-related disputes, even

in federal elections.

336

It takes very little effort to find historical

examples where the federal government has not entrusted the

preservation of federal rights, including voting rights, to state

courts.

337

But there are at least three reasons to think that, at this

moment, state courts are adequate to address the task at hand.

First, relying on state courts offers minimal disruption to the

status quo for election litigation generally. Election disputes are

contentious, short-fuse affairs. It would be possible to build novel

dispute-resolution mechanisms or jurisdictional hooks to change

how these election claims are litigated, which might include

increased federal judicial involvement.

338

But that increases the

335. See supra note 9 (describing alternative concerns about the conduct of elections

officials beyond “election subversion”).

336. See, e.g., Lisa Marshall Manheim, Judging Congressional Elections, 51 G

A. L. REV.

359, 386-98 (2017).

337. See, e.g., Habeas Corpus Act of 1867, 14 Stat. 385; Jurisdiction and Removal Act of

1875, 18 Stat. 470; see also James A. Gardner, Illiberalism and Authoritarianism in the

American States, 70 A

M. U. L. REV. 829, 884-87 (2021) (expressing concern that state

legislatures in some places have disempowered state courts in ways that undermine a

commitment to a liberal democracy); Stephen B. Bright, Can Judicial Independence Be

Attained in the South? Overcoming History, Elections, and Misperceptions About the Role of

the Judiciary, 14 G

A. ST. U. L. REV. 817, 826, 839-40 (1998).

338. Not all scholars are persuaded that the federal courts are the right place to address

voting issues in the first place. See, e.g., Josh Chafetz, The New Judicial Power Grab, 67 S

OUIS U. L.J. 635, 636-40 (2023) (expressing distrust of the federal judiciary in the area of

election law); Codrington, supra note 317, at 980-81; Leah Litman & Katherine Shaw,

Textualism, Judicial Supremacy, and the Independent State Legislature Theory, 2022 W

IS. L.

EV. 1235, 1238-39 (2022); Joshua A. Douglas, Undue Deference to States in the 2020 Election

Litigation, 30 W

M. & MARY BILL RTS. J. 59, 79-80 (2021); Charquia Wright, Circuit Circus:

Defying SCOTUS and Disenfranchising Black Voters, 83 O

HIO ST. L.J. 601, 603-04, 617 (2022);

James A. Gardner, The Illiberalization of American Election Law: A Study in Democratic

Deconsolidation, 90 F

ORDHAM L. REV. 423, 457-60 (2021). Perhaps that is another reason to

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 379

uncertainty of how the courts should handle these challenges in the

middle of a contentious election dispute. The reality is that there is

a lack of political interest in making significant changes.

339

Indeed,

the Electoral Count Reform Act succeeded where other election

legislation at the federal level failed in part because it relied on

stable and existing mechanisms to address challenges in presiden-

tial election controversies.

340

Second, state courts have a modest demonstrated recent track

record of success.

341

State courts have ably resolved election chal-

lenges in recent years with little backlash or controversy. That may

change in another era, of course. And their success has been

broadest in precisely the kinds of post-election challenges where the

risk of election subversion is greatest. In pre-election controversies,

over absentee ballot rules or filing deadlines, state courts often have

heated, and sometimes controversial decisions with partisan divides

about whether and how to resolve election law controversies.

342

After

the election, however, the state courts have been more deferential

to established procedures, and they have sought swift conclusions

to controversies to bring certainty and to resolve disputes without

the same partisan overtures that have plagued some pre-election

disputes.

343

Third, most state court judges are also elected. At first blush, this

seems counterintuitive. If state court judges are elected, might not

state court judges be inclined to meddle in the political process to

rely more heavily on state courts.

339. See, e.g., Alex Leary & Eliza Collins, Biden Endorses Filibuster Rule Changes if

Necessary to Pass Voting Legislation, W

ALL ST. J. (Jan. 11, 2022, 9:30 PM), https://www.

wsj.com/articles/biden-casts-election-law-votes-as-turning-point-for-nation-in-speech-

11641897003 [https://perma.cc/M5TR-U56J]; see also Franita Tolson, The Elections Clause

and the Underenforcement of Federal Law, 129 Y

ALE L.J.F. 171, 173-74 (2019) (identifying

Congress’s “underenforcement” of its power to regulate elections).

340. See supra Part IV.B.

341. See Miriam Seifter, State Institutions and Democratic Opportunity, 72 D

UKE L.J. 275,

275-76,

280-82 (2022); Norman Williams, Partisan Gerrymandering: The Promise and Limits

of State Court Judicial Review, M

ARQ. L. REV. (forthcoming) (manuscript at 10); David F. Levi,

Amelia Ashton Thorn & John Macy, 2020 Election Litigation: The Courts Held,

105

UDICATURE 8, 9 (2021).

342. See, e.g., Amy Gardner & Emma Brown, Republicans Sue to Disqualify Thousands of

Mail Ballots in Swing States, W

ASH. POST (Nov. 7, 2022, 3:38 PM), https://www.washington

post.com/elections/2022/11/07/gop-sues-reject-mail-ballots/ [https://perma.cc/7E4Z-G9WM].

343. See supra Part III.A.

380 WILLIAM & MARY LAW REVIEW [Vol. 65:327

advantage themselves?

344

For one, state court judges recuse when

their own elections are in dispute, as some justices did in the Otero

County, New Mexico dispute.

345

Admittedly, more meaningful re-

cusal rules could provide greater clarity to avoid such an obvious

risk of a conflict of interest.

346

But state court judges are also acutely

aware of how election administration could affect future elections,

including their own.

347

And the last thing judges desire, I would

suggest, is a process where election officials could subvert the out-

come of a future election by interfering with the results. It may well

be that the election of judges is a benefit for their role in issuing

mandamus in post-election disputes, as elected judges could easily

envision the consequences in their own elections if they failed to

enforce ministerial duties of officials in other elections.

VII.

STRENGTHENING MANDAMUS

Mandamus is a readily available remedy that can be used to

reduce the risk of election subversion, and it can be a device for

litigants to go to court and reverse subversive acts. But mandamus

can be strengthened. These proposals to strengthen mandamus do

not focus on mandamus itself—as mentioned, mandamus needs to

remain confined to extraordinary circumstance to ensure it remains

an effective remedy.

348

Instead, these proposals focus on the

attendant circumstances around mandamus. Mandamus will lie

against public officials engaged in ministerial acts, so reducing

election officials’ discretion makes mandamus more readily avail-

able. If officials defy mandamus, courts should be empowered with

minimally intrusive mechanisms to resolve disputes expeditiously.

And state supreme courts should remain available forums for

344. David E. Pozen, The Irony of Judicial Elections, 108 COLUM. L. REV. 265, 321-23

(2008).

345. See supra Part III.A.

346. See, e.g., Dmitry Bam, Recusal Failure, 18 N.Y.U.

J. LEG. & PUB. POL’Y 631, 652-56

(2015); Ethan J. Leib, David L. Ponet & Michael Serota, A Fiduciary Theory of Judging, 101

AL. L. REV. 699, 733-36 (2013); James Sample & David E. Pozen, Making Judicial Recusal

More Rigorous, 46 J

UDGES J. 17, 17, 19, 22-23 (2007).

347. Cf. Shirley S. Abrahamson, The Ballot and the Bench, 76 N.Y.U.

L. REV. 973, 985-86

(2001) (describing complexity of state court judges responding to popular will and the drive

to decide cases on law and facts instead).

348. See supra note 322 and accompanying text.

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 381

original jurisdiction over mandamus in election law disputes where

there is no need for factual development and where time is of the

essence.

A. Reducing Election Officials’ Discretion

Restricting discretion in elections can offer significant advantages

quite apart from any concerns about mandamus. It can avoid equal

protection concerns that arise if an election is administered in a way

that treats similarly situated voters differently.

349

It can reduce

litigation if election rules are increasingly uniform and applied

consistently across a state.

350

Laws enacted in some states after the 2020 election reduce

election officials’ discretion.

351

In part, the legislation responded to

election officials who exercised discretion during the novel corona-

virus pandemic in ways that legislatures disfavored, and the

legislatures sought to reduce such discretion in future election

administration. Reducing discretion more generally is a tool to

prevent election subversion.

352

If election officials are given less

discretion and more guidance from the statutory code, it becomes

easier for courts to compel compliance.

For instance, Georgia’s SB 202, enacted in 2021, limited the

discretion that the State Election Board may have when it comes to

adopting “emergency rules or regulations,”

353

as such rules must be

made “in strict and exact compliance with the provisions of this

chapter.”

354

Iowa’s SF 413, enacted in 2021, expressly provided that

the “county commissioner of elections does not possess home rule

powers with respect to the exercise of powers or duties related to the

conduct of elections prescribed by statute or rule, or guidance

issued” under the Iowa code,

355

and “[t]he state commissioner of

349. See Michael T. Morley, Bush v. Gore’s Uniformity Principle and the Equal Protection

Right to Vote, 28 G

EO. MASON L. REV. 229, 261-84 (2020).

350. See Muller, supra note 201, at 576-78.

351. See infra notes 353-60 and accompanying text.

352. Cf. Pildes, supra note 2, at 114 (suggesting that voting in person offers election

officials less discretion than the rules relating to absentee or mail-in voting, which can reduce

the risk of election subversion).

353. G

A. CODE ANN. § 21-2-35(a) (2021).

354. Id. § 21-2-35(b).

355. I

OWA CODE § 47.2(1).

382 WILLIAM & MARY LAW REVIEW [Vol. 65:327

elections may issue guidance that is not subject to the rulemaking

process to clarify election laws and rules,” which would control the

decisions of county officials to limit discretion.

356

Michigan’s Ballot

Proposal 2 was approved by voters in 2022.

357

It qualified that the

board of canvassers has a “ministerial, clerical, nondiscretionary

duty” to certify election results under enumerated circumstances.

358

Colorado’s SB 22-153, enacted in 2022, required local election

officials to follow secretary of state guidance.

359

If county officials

fail to certify election results, the Secretary of State may proceed to

certify the results.

360

Each of these decisions to enumerate the

duties of election officials and reduce their discretion ensures that

it is easier to seek compliance through mandamus.

B. Directing Another Official to Perform Ministerial Tasks

Enforcing mandamus is as crucial as the availability of the writ.

But that can be easier said than done. Earlier, this Article identified

ways to induce compliance with a court order. This Article posits

that the most minimally-intrusive and effective mechanisms should

be available in states.

New York’s “Stolen Senate of 1891” offers a warning for over-

reliance on the ordinary contempt power of the courts.

361

Through

a series of partisan and subversive maneuvers, Democrats who ran

the canvassing boards threatened to undermine the outcomes of

three seats in the state senate that the Republicans appeared to

have won.

362

Flipping these seats would ensure Democratic control

of the state senate (they already had control of the assembly and

the governorship).

363

Republicans sought mandamus against the

356. Id. § 47.1(1).

357. Clara Hendrickson, Proposal 2: Voting Rights Proposal Approved in Michigan, D

ET.

REE PRESS (Nov. 11, 2022, 1:58 AM), https://www.freep.com/story/news/politics/elections/

2022/11/09/proposal-2-michigan-results-election-2022/69599504007/ [https://perma.cc/E3MJ-

AHNW].

358. Amber Ainsworth, Proposal 2: Read the Full Proposed Changes to Michigan Voting

Laws, F

OX 2 DET. (Oct. 31, 2022), https://www.fox2detroit.com/news/proposal-2-read-the-full-

proposed-changes-to-michigan-voting-laws [https://perma.cc/YL3G-CTH6].

359. C

OLO. REV. STAT. § 1-13-114(1) (2022).

360. Id. § 1-10-104(3).

361. See F

OLEY, supra note 9, at 179-90.

362. Id. at 179-81.

363. Id. at 180.

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 383

canvassing boards.

364

In two challenges, Republicans lost.

365

They

won in the third, where a trial court granted the writ and the

highest court affirmed.

366

But the canvassing board defied manda-

mus. It ignored the order of the court and certified the Democratic

results, which it was not supposed to certify.

367

The board success-

fully subverted the election. Members of the board then faced fines

totaling $831.28, which was upheld in 1894—three years after the

subversion took place.

368

As the New York Court of Appeals sum-

marized it, “[w]hat constitutes the contempt here is that the

defendants, knowing of the order for the issuance of a peremptory

writ of mandamus, have done the very thing which the issuance of

the writ was intended to absolutely prevent, and have thus con-

temned and defeated the will of the court.”

369

But the subversion

was effective because the mechanism to enforce mandamus was not.

A mechanism more effective than contempt is desirable.

Every state appears to have some mechanism to allow courts to

direct another official to perform a ministerial task. Most states

model their rules off Federal Rule of Civil Procedure 70.

370

Rule 70

arose from Federal Rules of Equity 7, 8, and 9.

371

Those rules

permitted a writ of attachment, a writ of sequestration, a writ of

assistance, or a writ of execution to compel obedience to a decree.

372

Rule 70 streamlined these diverse writs into a single mechanism for

enforcing judgments of the court, including empowering the court to

enforce a judgment “to perform any other specific act” to be done “by

another person appointed by the court.”

373

Note that these equitable

364. Id. at 181.

365. People ex rel. Sherwood v. State Bd. of Canvassers, 29 N.E. 345, 349-50 (N.Y. 1891);

People ex rel. Nichols v. Bd. of Cnty. Canvassers of Onodaga, 29 N.E. 327, 336, 339 (N.Y.

1891).

366. People ex rel. Daley v. Bd. of St. Canvassers, 29 N.E. 355, 358 (N.Y. 1891).

367. F

OLEY, supra note 9, at 187-88.

368. People ex rel. Platt v. Rice, 39 N.E. 88, 90-91, 93 (N.Y. 1894).

369. Id. at 91.

370. See F

ED. R. CIV. P. 70.

371. F

ED. R. EQUITY 7, 8, 9 (1912).

372. Id.

373. F

ED. R. CIV. P. 70. The original rule stated, “by some other person appointed by the

court,” which was amended in the 2007 restyling to read, “by another person appointed by the

court.” Compare Rules of Civil Procedure for the United States District Courts: Hearing on S.J.

Res. 281 Before a Subcomm. of the Comm. on the Judiciary, 75th Cong. 23-24 (1938)

(describing unifying “rules for law and equity”), with F

ED. R. CIV. P. 70. See also Dobie, supra

note 172, at

304-05 (identifying “several varied and effective remedies”).

384 WILLIAM & MARY LAW REVIEW [Vol. 65:327

remedies may not have direct application to mandamus, tradition-

ally a legal remedy. But the Federal Rules of Civil Procedure apply

to both legal and equitable cases, and the mechanism here would be

available for mandamus relief.

374

Most states have language identical to Rule 70, or language very

close to it.

375

A few states have similar rules that empower courts to

take any appropriate steps.

376

And several others—including Con-

necticut, Michigan, Nebraska, New Hampshire, New York, Virginia,

and Wisconsin—do not appear to have any such mechanism beyond

the ordinary contempt power.

377

The contempt power is broad, and it remains an inherent power

of the courts to enforce judgments.

378

That power, however, may

374. See FED. R. CIV. P. 70.

375. See, e.g., A

RIZ. R. CIV. P. 70; FLA. R. CIV. P. 1.570(C)(3); MINN. R. CIV. P. 70; N.C. GEN.

TAT. ANN. 1A-1, 70; OHIO CIV. R. 70; VT. R. CIV. P. 70; WASH. SUPER. CT. CIV. R. 70.

376. C

AL. CIV. PRO. CODE § 717.010 (West 1983) (“A judgment not otherwise enforceable

pursuant to this title may be enforced by personally serving a certified copy of the judgment

on the person required to obey it and invoking the power of the court to punish for

contempt.”); id. § 1097 (“In case of persistence in a refusal of obedience, the court may order

the party to be imprisoned until the writ is obeyed, and may make any orders necessary and

proper for the complete enforcement of the writ.”); C

IV. P. CODE GA. 254.1 (“When delivering

a decision ordering the defendant to take specific action that is not related to the transfer of

property or money, the court may indicate in the same decision that if the defendant fails to

comply with the decision within the set time limits, the plaintiff may take the above action

with the defendant reimbursing necessary costs.”); K

AN. STAT. ANN. § 60-803 (West 2022)

(“Disobedience of any judgment in mandamus may, in addition to other appropriate remedies

or damages be punished as for contempt.”); O

R. REV. ST. ANN. § 34.140(2) (West 2022)

(“Obedience to the writ may be enforced in such manner as the court or judge thereof shall

direct.”)

377. See, e.g., M

ICH. CT. R., 2.621(F) (for injunctions) (“The court may punish for contempt

a person who violates the restraining provision of an order or subpoena or, if the person is not

the judgment debtor, may enter judgment against the person in the amount of the unpaid

portion of the judgment and costs allowed by law or these rules or in the amount of the value

of the property transferred, whichever is less.”); N.H.

SUPER. CT. R. CIV. 52(b) (“Attachments

for contempt may be issued by the court at any time upon evidence of the violation of any

injunction or other order, or for neglect of witnesses to give evidence upon subpoena, and

commitment may be made thereon. Parties may be arrested upon order of court and required

to give bonds for appearance and to abide the order of court in any case where it shall be

deemed necessary.”); V

A. CODE ANN. § 8.01-652 (West 2022) (“Service of a copy of the order

awarding the writ [of mandamus] shall be equivalent to service of the writ, and obedience to

the writ or order may be enforced by process of contempt.”). See also C

ONN. PRACTICE BOOK

§ 17-19; NEB. REV. STAT. ANN. § 25-1072 (West 2022) (for injunctions); N.Y. C.P.L.R. 5104

CKINNEY 2022); OKLA. STAT. ANN. tit. xii, § 12-1462 (West 2022); WIS. STAT. ANN. § 806.01

(West 2022); Carney v. CNH Health & Welfare Plan, 740 N.W.2d 625, 632-35 (Wis. 2007).

378. See Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1874) (“The power to punish for

contempts is inherent in all courts; its existence is essential to the preservation of order in

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 385

include mechanisms other than fines or imprisonment to compel

compliance—including the inherent authority to take whatever

steps are necessary to ensure compliance.

379

Some states’ mandamus

statutes may have individual empowerment mechanisms, too, to

ensure that courts have the power to compel compliance.

380

State law could be easily and readily updated to ensure that a

version of Rule 70 exists. State courts should expressly have the

power to direct “another person appointed by the court” to carry out

ministerial obligations in mandamus cases.

381

Principal election

administration responsibility remains with election officials. This

relief is the least intrusive form of ensuring compliance. It does not

require incarcerating election officials or a great public battle with

grandstanding election officials. And in time-sensitive election

disputes, it allows for a speedy resolution of the matter, too.

Courts retain the discretion to decide what individual to appoint

to carry out the task.

382

Different contexts may counsel in favor of

appointing different individuals. For instance, if an election board

is divided and fails to certify election results consistent with its

judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts,

and consequently to the due administration of justice. The moment the courts of the United

States were called into existence and invested with jurisdiction over any subject, they became

possessed of this power.”).

379. See, e.g., In re Interest of Krystal P., 557 N.W.2d 26, 29 (Neb. 1996) (“We first note

that [the relevant statute] is a codification of the common law of contempt and does not

supplant a court’s inherent contempt powers. The fact that [the statute] does not list attorney

fees as punishment that a court of record may impose in a contempt proceeding does not

necessarily prohibit the court from awarding attorney fees under certain circumstances.”)

(citations omitted); Runco v. Francis, No. 2013-131838, 2015 WL 3796060, at *8 (Mich. Ct.

App. June 18, 2015) (per curiam) (“In any event, a circuit court is empowered to enforce its

decrees and effectuate its judgment in a divorce action. Plaintiff has not established any basis

for collaterally attacking the enforcement action taken in his divorce case.”) (citations

omitted); see also Tomasso-Addeo v. Addeo, No. A-5039-15T1, 2018 WL 1056330, at *1 (N.J.

Super. Ct. App. Div. Feb. 27, 2018) (per curiam) (noting that trial court entered an order

requiring party to close on refinancing home within two months, or else a judgment would be

entered against him in the amount of opposing party’s share of the mortgage and opposing

party would be granted “a limited power of attorney to sell the house”); Scahill v. Stockton,

No. I2017002647, 2021 WL 2604565, at *5-7 (N.Y. Sup. Ct. Apr. 22, 2021) (granting limited

power of attorney to woman whose former husband failed to comply with divorce agreement

to complete sale of home).

380. See, e.g., G

A. CODE ANN. § 9-6-21, 22 (West 2022); WIS. STAT. ANN. § 783 (West 2022).

381. F

ED. R. CIV. P. 70.

382. See Election Administration at State and Local Levels, N

AT’L CONF. STATE LEGIS. (NOV.

2022), https://www.ncsl.org/elections-and-campaigns/election-administration-at-state-and-

local-levels [https://perma.cc/QX7S-7GBL].

386 WILLIAM & MARY LAW REVIEW [Vol. 65:327

clear legal duty, a court may appoint the dissenting members of the

board to act on behalf of the entire board. If a local official refuses

to comply with a directive, the court can appoint the county official

or the state official who supervises that local official or who would

receive the certified results at the end of the day. And if it is an

officer holding statewide office, the court should seek a comparable

state officer—a governor, lieutenant governor, secretary of state,

attorney general, or other officer may step into the shoes of the

other.

Admittedly, courts could just as easily appoint a clerk of the court

to complete the ministerial task. But there is a public-facing advan-

tage to having the process look as close as possible to how it

ordinarily operates. Rather than the perception that the court is

usurping the ordinary election process and taking the task of elec-

tion administration upon itself, the process will look like any other

certification. True, the certification is happening at the behest of a

court. But this level of disruption of the process seems unavoidable

once election officials refuse to perform their clear legal duties.

383

C. Ensuring State Supreme Courts’ Original Jurisdiction

State supreme courts often have original jurisdiction in manda-

mus cases.

384

But if states desire the most expedited avenues for

review of election subversion, they should guarantee that state

supreme courts have original jurisdiction in mandamus cases. This

jurisdiction can be both original and discretionary, which allows

state supreme courts to decline to exercise jurisdiction and allow

trial courts the first opportunity to resolve disputes, when appropri-

ate.

385

But unambiguous jurisdiction granted to state supreme

courts can avoid time-consuming appeals and, crucially, the sub-

versive effects from public officials’ delays.

386

Additionally, state

courts should articulate clear rules about when they would decline

to exercise discretionary jurisdiction. State supreme courts have

expressed concern over cases that require factual development,

cases with any potential discretion left for election officials, or cases

383. See supra Part VI.B.

384. See Pfander, supra note 20, at 1532-35.

385. See, e.g., Clopton, supra note 271, at 5, 36.

386. See id.

2023] ELECTION SUBVERSION AND THE WRIT OF MANDAMUS 387

where an opposing party has not been given an opportunity to be

heard.

387

Clear rules like these ensure that at least some time-

sensitive election litigation would have a straightforward path

before the state supreme court.

Returning to Colorado’s election bill enacted in 2022, the state

sought to expedite legal review of election controversies.

388

But its

mechanisms are clumsy. The Secretary of State can now seek to

enforce the election code through injunctive action filed in district

court.

389

Colorado updated the law to say that the district court must

move quickly, that appeals to the Colorado Supreme Court must

happen within three days, and the Colorado Supreme Court “shall

expedite scheduling.”

390

All well and good, but one wonders if the

problem is really the slowness of the judiciary in this context. The

greater problem is likely recalcitrant election officials, and parties

simply need access to swift judicial mechanisms rather than instruc-

tions to the judiciary to move swiftly.

ONCLUSION

Efforts to subvert elections have been rare, and one hopes they

will remain rare in the future. Even in rare cases, however, the law

must be ready to ensure that elections are administered appropri-

ately. This Article emphasizes that, for the most part, the law is

ready. The writ of mandamus is an established mechanism to en-

sure that executive officials do not subvert election results. Courts

and legislatures should note how mandamus can be used appropri-

ately, ensure that they have defined its contours adequately, and

apply it consistently in election law cases in the years to come.

387. See supra notes 81-94, 274-81 and accompanying text.

388. See

COLO. REV. STAT. ANN. § 1-1-107 (West 2022).

389. Id. § 1-1-107(d).

390. Id.