Politics is messy business, especially in presidential elections. And as Bush v. Gore taught us in 2000, the messiness of presidential politics can go on even after the election is over. This is especially true when states like Florida prove they can’t get their acts together . This past election cycle, I was shocked the election seemed decided by about 8 pm. This was approximately the time that Fox News’ reporters showed visible signs of clinical depression, which I thought was funny. Those guys need a healthy dose of keep calm and carry on.
In any event, I found myself on Election Night contemplating the intersection between messy presidential politics and products liability litigation. And where, you may be asking, is that intersection? Well, Bush v. Gore showed us that presidential campaigns are not above using post-electoral litigation as a strategic political tool. But why should politicians have all the fun? Why can’t average joes like myself – who may or may not be acting as political operatives – file post-electoral complaints against the manufacturers of voting machines or the writers of software code used in voting machines, claiming that my vote was not counted, and more broadly, that the machines failed to accurately capture the votes of my fellow Americans? The downside of this litigation strategy is that it wouldn’t undo the results of the election. The upside to this litigation is that, assuming the hypothetical plaintiff could reach the discovery phase of the suit, the resulting fishing expedition could find some voting irregularity that could be used to compromise the winning candidate’s legitimacy.
This is not so far-fetched. Many elections are decided by slim margins. Given that votes are now taken by machines, there will be a fail-rate associated with the use of those machines. In elections with slim margins, the fail-rate associated with a particular model of voting machine may cover the spread, which could establish that the failure to properly account for the vote was outcome determinative. This tees up a scenario of explosive litigation with a nasty propensity for undermining confidence in the electoral system.
So why haven’t we seen this yet? I have no idea. My brief amount of research has not found any claims to this effect. But I have to believe it’s only a matter of time.