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Tuesday, February 12, 2013

Election Law Pleading

Have you ever wondered how the Supreme Court’s recent pleading decisions in Twombly and Iqbal have impacted election litigation?  Me too!  That’s why I wrote Election Law Pleading (forthcoming in the GW Law Review).

Cribbing from the abstract (yes, I'm being lazy, but hey, I wrote the abstract too!):

The Article provides the first comprehensive look at election law cases after the Supreme Court’s jurisprudential shift for pleading in Twombly and Iqbal. In these cases, the Supreme Court declared that plaintiffs must meet a “factual plausibility” test in their complaints, providing enough factual specificity to explain the basis for their suit. Courts in election cases have tried to follow this formulation. But applying Twombly and Iqbal to election law is incongruent with the main features of election litigation, leading to an awkward and sloppy analysis. There is usually little need to assess whether the plaintiff presented detailed factual allegations in a complaint when everyone usually agrees on how an election practice operates and the real question is whether the election regulation violates some law. Instead, a court deciding a motion to dismiss in an election case should focus on the other aspect of Rule 12(b)(6): legal sufficiency. To do so, this article proposes a pleading standard that would supplement factual plausibility, which I term "legal plausibility." In addition to requiring sufficient factual allegations – which are often not the crux of an election dispute, at least at the complaint stage – pleading rules should force election law plaintiffs to make a plausible showing that the challenged practice is legally flawed. Legal plausibility entails three parts: plaintiffs should identify the precise election practice being challenged, explain with particularity how the law impacts that plaintiff, and apply the elements of the cause of action to the manner in which the election regulation operates. This standard will be particularly helpful for litigants and courts when the case at hand exhibits the dual features of timeliness concerns and a lack of viable post-election remedies – which encompasses a lot of election litigation. Although I focus on election cases, legal plausibility could apply to other areas that are similar to election law. Legal plausibility shifts the way in which courts analyze motions to dismiss. It helps courts streamline election litigation by weeding out those lawsuits that have no legal merit, allowing courts to spend more time and resources on the salient and difficult cases that require quick resolution before an election.

Comments are welcome as I take this through the editing process!

Posted by Josh Douglas on February 12, 2013 at 10:44 AM | Permalink


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How does your concept of legal plausibility differ from the traditional understanding of legal sufficiency? Put differently, can you describe a situation in which your standard would work a different result from the usual analysis in a 12b6 attack? Stipulating to your claim that factual plausibility doesn't play in election law, in fact, what difference do twombly or iqbal even make in your applications? And, doesn't your suggestion of a distinct standard for election cases raise problems either directly under the Rules Enabling Act's proviso concerning the modiication of substantive rights or pursuant to the Supreme Court's various pronouncements concerning the limits on the judiciary's power to reinterpret rules already enacted?

Finally, doesn't Rule 12e suffice to cure the kinds of problems with vague or ambiguous complaints you seem to have in mind?

Posted by: anon | Feb 12, 2013 5:43:08 PM

Anon: Thanks for your questions.

One of my points is that there is no standard by which to judge legal sufficiency. This is a particular problem in election cases when the issue is whether the state's election regulation is violating some law, not what factually happened that gave rise to the lawsuit. So legal plausibility provides a framework for answering the legal sufficiency question. Thus, Twombly and Iqbal are pretty much irrelevant in most election law cases, because they do not tell us whether the plaintiff has a viable claim or not.

I agree that my standard does away with transsubstantivity in the Federal Rules; but I think there are good reasons to do so when these cases are more about the "law" than the "facts." This standard does not need to apply only to election law cases, but election law is a good place to start. In addition, one particular concern of election cases is timeliness, combined with a lack of adequate post-election remedies. So Rule 12(e) does not help there because it just prolongs the resolution of election cases.

Anyways, those are quick answers to your questions; the article addresses most of these concerns in more detail.

Thanks again for your comments!


Posted by: Josh Douglas | Feb 13, 2013 8:25:47 AM

I don't understand your point about there not being a standard for judging legal sufficiency. Traditionally this was an easy issue: accepting the allegations in the complaint as true, ask yourself whether the plaintiff is entitled to relief. If so the complaint is legally sufficient, and otherwise not. If you think election complaints aren't meaningfully related to twombly and iqbal then the traditional analysis is still relevant. So at the risk of repeating myself I can't help wondering what you think is deficient about the traditional standard.

(I don't find your response re transsub. compelling but let's not belabor that point.)

Posted by: anon | Feb 13, 2013 10:52:38 AM

Well, without rehashing large segments of the article, the problem is first, that there is no standard by which to judge legal sufficiency (what does it mean that the "complaint is legally sufficient"), and second, courts are trying to use Twombly and Iqbal in election cases, which does not make sense. So courts need a test by which to judge an election law complaint, and the current standard does not help because courts are trying to consider factual sufficiency when the facts are not in dispute. I do not agree that the current test for legal sufficiency suffices because there is no standard to guide that inquiry (and in its place courts are falling back on Twombly and Iqbal). I offer legal plausibility as a possible solution.

Posted by: Josh Douglas | Feb 13, 2013 11:32:35 AM

I'm not trying to harrass you--i just don't understand what you mean when you say there's no standard to assess legal sufficiency. This isn't new ground, as I noted in my last comment. Surely you can find a middle ground between simply asserting your position and rehashing your whole article. Why doesn't my previous comment constitute a perfectly workable standard...indeed, one that has been used for decades?

Posted by: anon | Feb 13, 2013 1:15:03 PM


I'm not sure what you mean by the "current" test for legal sufficiency; at least in election cases courts have either invoked Twombly or Iqbal to answer *that* question (which makes no sense) or just declared that the complaint either is or is not legally sufficient.

I respect this debate, but can you point me to a specific part of my article (page numbers or sections would help) that you find unconvincing? Feel free to contact me directly as well.



Posted by: Josh Douglas | Feb 13, 2013 1:39:34 PM

One more try.

Let's make it easy and consider a case in which the facts are agreed and detailed. "Accepting allegations in the complaint as true, would the plaintiff be entitled to relief under some logically possible set of facts?" is the standard pre-twombly, and per the stipulation that factual plausibility plays no role, presumably also post-twombly. Are you saying that's not a standard?

With respect, this is a simple enough point/question that I don't think you really need me to cite to your paper to attempt a response that takes my question seriously. Anyway, this is the last time I'll ask.

Posted by: anon | Feb 13, 2013 1:58:20 PM

My last try as well: my formulation (what I termed "legal plausibility") is an attempt to put some meat on the legal sufficiency question when the only issue in contention is whether the governmental defendant is liable for an election wrong. I don't see courts, at least in recent election cases, telling us *why* a complaint is or is not legally sufficient -- they just try to invoke Twombly and Iqbal instead. You've taken my stipulation that, at least most of the time, factual sufficiency (or plausibility) is irrelevant in these cases. A more robust test for legal sufficiency can help to fill that void.

I'd be happy to chat about this more after you've read my paper. Thanks again for your comments.

Posted by: Josh Douglas | Feb 13, 2013 2:20:29 PM

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