Skip to main content

Election Law Manual
Chapter 11: Extraordinary and Equitable Relief

⤴ Up to Election Law Manual

Table of Contents

Subchapter 1: Introduction

Requests for extraordinary writs (mandamus, prohibition, and quo warranto), equitable relief (various types of injunctions), or declaratory judgments 1 are not uncommon in election-related litigation. When issued, writs of mandamus 2 compel officials to perform their legally required duties, writs of prohibition constrain and overturn the unauthorized exercise of judicial or quasi-judicial authority, quo warranto ousts usurpers from office, injunctions either compel or prohibit action, and declaratory judgments announce the rights, duties, and obligations of the parties.

Extraordinary writs, which originated in common law, are now frequently either authorized or limited by state statutes.3 Before receiving an extraordinary writ, requestors must usually demonstrate that no adequate, alternative form of relief is available and that they acted with utmost diligence lest they become vulnerable to laches. 4 Extraordinary writs may offer plaintiffs an opportunity to challenge election officials’ decisions in the absence of an administrative or judicial appeals process. Equitable relief too is generally available when no adequate remedy at law exists.

This chapter discusses the use of extraordinary and equitable relief in election-related lawsuits.

Subchapter 2: Extraordinary Writs

A. Writs of Mandamus

Mandamus is a discretionary writ that usually issues to compel a government official or government agency—such as election officials or the board of elections or its equivalents—to perform a legally required, ministerial public duty. 5 Mandamus does not establish legal rights or duties; it only enforces the performance of preexisting public duties.6 For example, mandamus can compel a member of the state legislature to open and publish election returns 7 and it can compel an election official to register a voter or grant ballot access to a candidate or ballot measure.8

All states permit writs of mandamus 9 or a statutory equivalent, although some states permit only the state supreme court to issue the writ 10 while other states permit their lower courts to do so.11 To qualify for a writ of mandamus, the plaintiff 12 must demonstrate the following:

  • a clear legal right for the denied or withheld act at the time the suit was instituted,13
  • the defendant’s clear legal duty 14 to act as requested, coupled with failure to do so, and
  • mandamus is the only available adequate remedy.15

The majority view holds that a plaintiff’s eligibility for mandamus relief is not conditioned on her first demanding that the defendant act because the legally-imposed duty operates as a continuing demand on the defendant’s conduct.16 The minority view requires plaintiffs to demand that the defendant act—and the defendant must usually refuse to act, either by his words or conduct—before seeking mandamus relief.17 The defendant’s anticipated refusal substitutes for actual refusal only when it is clear that the plaintiff’s demand would have been vain or useless.18

Virtually all legally required election duties have been subjected to a writ of mandamus at one time or another. Courts have issued writs of mandamus to compel government bodies or officials 19 to:

  • hold legally required public elections, including recall or initiative elections,20
  • accept legally conforming ballot measures or nominating petitions,21
  • add wrongfully omitted candidates’ names to the ballot,22
  • accept filing fees necessary to secure ballot access,23
  • restore wrongfully deleted names to a petition,24
  • conduct elections in conformity with local law,25
  • recognize qualified voters’ right to vote when wrongfully-denied,26
  • compel the provision of wrongfully-denied absentee ballots,27
  • disqualify void election returns,28
  • canvass the vote,29 and
  • announce the election results and issue the election certificates.30

Mandamus will not:

  • compel performance of discretionary activities unless in its absence the discretion would be exercised in a shocking, discriminatory, or unjust manner,31
  • compel strict compliance with the law in disregard of its plain intent and spirit,32 nor
  • issue when the controversy is moot.33

Courts may not issue mandamus that is actually a request for declaratory or injunctive relief in disguise.34 Mandamus compels action, it does not prohibit it.35 Mandamus does not issue if an adequate alternative remedy exists,36 if such a remedy once existed but was lost because of the plaintiff’s unexcused delay,37 or there is no clear legal right to the requested relief.38 Therefore, its availability may be limited or foreclosed when state statutes provide administrative review or expedited appeals from official actions.39 To bar mandamus, the alternative remedy must be equally and fully sufficient and offer the speedy, adequate and specific remedy mandamus would provide.40 Thus, a speedy and adequate injunction can bar mandamus,41 but a mandatory injunction that fails to offer a complete remedy usually cannot.42 Declaratory judgments are rarely adequate alternatives.43 Adequate administrative remedies also bar mandamus,44 but obviously futile, incomplete, or historically arbitrarily-applied administrative remedies do not.45 In at least one case, the availability of a federal civil rights lawsuit under § 1983 barred mandamus.46

Even though requests for mandamus are actions at law, their availability is nonetheless subject to the equitable doctrines of unclean hands and laches. 47 Moreover, mandamus cannot be used to compel actions that are unlawful, nugatory, fruitless, or contravene public policy.48 A writ of mandamus is also generally considered inappropriate if its issuance would cause confusion, embarrassment, disorder, or unnecessary hardship to the defendant public agency,49 or would not promote substantial justice.50

Although mandamus is a discretionary writ, courts may not arbitrarily or capriciously refuse to issue one.51 Nonetheless, a court’s decision to grant or deny a writ of mandamus can be appealed only for abuse of discretion.52 Courts can issue writs of mandamus in either an alternative or preemptory form.53 Alternative writs of mandamus order the recipient to take action or demonstrate why mandamus is inapplicable while preemptory writs are final and absolute.54

In practice, courts commonly issue the alternative writ and reserve the preemptory form for instances when the alternative proves unavailing.

 

B. Writs of Prohibition

Courts issue writs of prohibition when a judicial or quasi-judicial body has acted in a manner that exceeds its jurisdiction.55 Writs of prohibition target judicial acts involving fraud, corruption, abuse of discretion, or actions that clearly disregard applicable statutory provisions.56 Elections boards can be seen as acting quasi-judicially when they:

  • hold hearings to determine candidate qualifications, 57
  • Compute and canvas ballot returns,58
  • Conduct recounts, 59 or
  • remove candidates from the ballot.60

Under the common law, every court of general jurisdiction could issue writs of prohibition. Today, state statutes may specify which courts may issue it.61

Because prohibition stops only excessive judicial or quasi-judicial authority, it is unavailable to stop officials from performing their statutorily mandated ministerial duties. Thus, a court can issue a writ of prohibition when a lower court exceeds its jurisdiction by ordering a recount not required by statute,62 but cannot issue it to prevent the Secretary of State from receiving, tabulating and certifying election returns and results as constitutionally mandated.63

Before a court issues a writ of prohibition, the petitioner must commonly demonstrate the following:

  • the targeted inferior judicial or quasi-judicial tribunal exercised unauthorized power,64
  • the petitioner would be injured if the writ is denied,65 and
  • no adequate alternate remedy exists.66

Petitioners may also be required to exhaust all available administrative remedies before seeking prohibition.67 Although petitioners are commonly required to first object to the court or body exceeding its jurisdiction before seeking a writ of prohibition, this requirement is frequently waived in interests of society or justice.68 In addition, the petitioner must act in good faith and with clean hands.69

Writs of prohibition are available both before and after the election, although untimely requests may be barred by laches. 70 Before the election, writs of prohibition have been used to stop inferior courts from impermissibly counting the names on a recall petition and to prevent election boards from placing legally ineligible candidates’ names on the ballot.71 After the election, prohibition has restrained election boards from allowing others to view the ballots, and halted election contest proceedings when the lower court lacked jurisdiction or the contest was untimely filed.72 If an otherwise mooted issue is of public importance, a court may issue a writ of prohibition to provide future guidance to election officers.73

Courts usually deny requests for writs of prohibition when an adequate legal remedy or another extraordinary writ is available.74 Before an alternate remedy can displace prohibition it usually must be equally prompt, convenient, and effective.75 Courts also deny requests for a writ of prohibition when issuing it would be useless or against public policy;76 when the requestor’s interest is unclear, too remote, or inconsequential; or if the requestor has no legal right that is directly affected by the act the writ would target.77

 

C. Quo Warranto

Quo warranto actions are common law actions, now frequently codified in statute, that challenge the winning office holder’s right to the elective office because of her purported failure to meet the necessary qualifications.78 Quo warranto actions differ from—and serve different purposes than—election contests. 79 Election contests vindicate personal rights and are brought by or on behalf of unsuccessful candidates 80 who claim they are the true winner or that the true winner is unascertainable.81 Quo warranto, on the other hand, protects the public from an unqualified office holder and is brought by or on behalf of the public.82 Because it is meant to protect the public, statutory authority that grants a legislative body exclusive authority to determine election contests for its seats does not preclude citizens from filing quo warranto actions. 83 Quo warranto actions may only be used to oust those elected to office.84

Quo warranto may be the exclusive statutory means of challenging the office holder’s entitlement to office.85 Because a quo warranto action seeks to oust the usurper from office, it is only brought after the purported winner takes office. Losing an election is insufficient by itself to sustain a quo warranto action. Either the losing candidate must plead and prove his own rightful title to the office,86 or he must be able to bring the quo warranto action in his capacity as an interested citizen and taxpayer.87 Successful quo warranto actions oust the office holder and leave the office either vacant 88 or vested in the person in whose name the suit was brought.89

As an extraordinary writ, quo warranto actions require the unavailability of an adequate alternative remedy.90 In some instances, quo warranto actions have been possible when state statutes did not support an election contest under the circumstances that tainted the election. For example, a plaintiff was permitted to contest the failure of election officials to properly report correct vote totals through a quo warranto action because there was no statutory right of election contest in this situation for municipal elections.91 Another court permitted a quo warranto action to precede after plaintiffs missed the five-day deadline for filing election contests because the two mechanisms do not serve the same function.92

Subchapter 3: Equitable Relief

Courts issue mandatory injunctions to require the subject to act and prohibitory injunctions to prohibit the subject from acting.93 In either case, the injunction may be temporary or permanent.94 Temporary injunctions and restraining orders last a short time—a few hours to a few days—before they expire or must be renewed and could be issued in an ex parte proceeding.95 Permanent injunctions last longer than temporary injunctions but require full due process before they issue.96

Plaintiffs seeking an injunction must demonstrate the likelihood they will succeed on the merits of the underlying case, plus the likelihood that they will experience irreparable harm if the injunction is not granted.97 Courts review requests for injunctions by balancing the hardships the parties would experience if the injunction is granted or denied.98 In election cases, the courts may also consider the hardship voters would experience if the injunction is granted or denied.99 Sometimes courts also consider whether issuing the injunction will advance public interests.100

Courts generally refuse to issue injunctions that would prevent election officials from performing their statutorily required duties because doing so would violate the doctrine of non-judicial interference.101 Courts may also refuse to enjoin an ongoing election.102 The Purcell Principle—a doctrine discouraging court ordered changes to election law or procedure on the eve of an election—is one rationale for denying equitable relief in the election law context.103

When a court’s decision to issue or deny an injunction is appealed, the reviewing court conducts a “limited and deferential”104 de novo review to determine if the lower court’s actions constituted an abuse of discretion.105

Subchapter 4: Declaratory Judgments

Declaratory judgments are not extraordinary writs. Rather, they are procedural devices 106 that declare the validity or existence of statutory rights, legal status or legal relations between the parties, which the court has determined through statutory construction.107

The use of declaratory judgments is limited to existing and actual controversies.108 They may be denied when—despite their captioning—they are an attempt to circumvent other restrictions, such as when a declaratory judgment lawsuit is an attempt to circumvent expired election contest statutes of limitations.109 Courts may exercise their discretion to deny or defer a declaratory judgment request, especially when issuing it would violate the court’s policy of not intervening in the exercise of legislators’ or election officials’ discretion.110 Finally, although statutes of limitations do not exist for declaratory judgment requests, applicable statutes of limitations continue to operate on the underlying substantive claims.111

Subchapter 5: Conclusion

This chapter has presented the wide array of relief options available in election-related lawsuits: extraordinary relief, such as writs of mandamus, compel officials to perform legally required duties; writs of prohibition constrain and overturn the unauthorized exercise of judicial or quasi-judicial authority; quo warranto ousts usurpers from office leaving the office vacant or replaced by the petitioner; equitable relief, such as injunctions, can be used to compel or prohibit certain actions; and declaratory judgments which announce the rights, duties, and obligations of the parties. As noted above, these relief options, which were originally part of the common law, are now frequently authorized or limited and regulated in state election codes.

Footnotes

  1. Declaratory judgments are procedural devices and are not a form of relief. They are included in this chapter because plaintiffs sometimes erroneous request declaratory judgments rather than writs of mandamus or instead of filing an election contest.
  2. In practice, the “writ of” portion is frequently omitted when referring to the extraordinary writs. In addition, some states have statutory replacements for writs of mandamus, thus references to writs of mandamus or mandamus in this manual are intended to include the statutory equivalents, to the extent applicable.
  3. See GA. CODE ANN. § 9-4-3; V.R.A.P. Rule 21.
  4. State ex rel. Newell v. Tuscarawas County Bd. of Elections, 757 N.E.2d 1135, 1138 (Ohio 2001) (Douglas, J., dissenting) (per curiam).
  5. Although less common, mandamus can also be used to compel an inferior court to act. See In re Wilbourn, 590 So.2d 1381, 1386 (Miss. 1991) (ordering the lower court to dissolve a temporary restraining order that was preventing the election board for certifying a winner and, thus, holding up any opportunity for an election contest).
  6. CHESTER JAMES ANTIEAU, THE PRACTICE OF EXTRAORDINARY REMEDIES: HABEAS CORPUS AND THE OTHER COMMON LAW WRITS 292 (1987); State ex rel. Willke v. Taft, 107 Ohio St. 3d 1 (2005) (noting courts cannot create the legal duties subject to mandamus action; they must be pre-existing).
  7. ANTIEAU, supra note 6, at 312; State v. Elder, 31 Neb 169 (1891).
  8. Id. at 313. Mandamus is unavailable where the official acted within his authorized discretion. exercised was not faulty. See State ex rel. Vickers v. Summit County Council, 97 Ohio St. 3d 204 (2002) (per curiam) (noting mandamus would not have been available even absent laches because the municipal council had no clear legal duty to submit every charter amendment proposal to the voters).
  9. ANTIEAU, supra note 6, at 291; see, e.g., Russell v. Smokerise Bath & Racquet Club, Inc., 256 S.E.2d 457, 460 (Ga. 1979); (GA. CODE ANN. § 9-6-1 (West).
  10. N.M. Const. art. VI, § 3; Del. Sup. Ct. R. 43.
  11. NEV. REV. STAT. ANN. § 34.160; N.D. CENT. CODE § 32-34-01.
  12. Local practice rules might require petitions for mandamus be brought in state’s name in relation to the plaintiff. ANTIEAU, supra note 6, at 292; State ex rel. Krieger v. Bd. of Supervisors, 105 NW 2d 721 (Neb. 1960). Citizens and taxpayers may have standing to request mandamus to compel elections to be called as required and for performance of ministerial election-related duties. ANTIEAU, supra note 6, at 403. Citizens who signed petitions have standing to seek mandamus to compel the acceptance of the petition. Id. at 320-22.
  13. Id. at 296. Mandamus does not enforce uncertain, abstract, doubtful, or prospective claims. Mandamus is only available to compel future duties when clear that the defendant does not intend to perform it or when the future duty is continues from a current duty he is not performing.
  14. The defendant’s legal duty can arise from statutory or common law and must be something the defendant is capable of performing.
  15. Hazzouri v. W. Pittston Borough, 416 F. Supp. 3d 405, 418 (M.D. Pa. 2019); GE v. W. Feliciana Par. Hosp. Serv. Dist. No. 1, No. 16-449-JWD-RLB, 2016 U.S. Dist. LEXIS 164214, at *15 (M.D. La. Nov. 29, 2016).
  16. ANTIEAU, supra note 6, at 297; People ex rel. Adams v. McKibben, 35 N.E.2d 321 (Ill. 1941).
  17. Id. at 298.
  18. Id. at 297.
  19. Necessary parties to mandamus actions are those government bodies or individuals with a clear, legal duty to perform the requested action.
  20. ANTIEAU, supra note 6, at 320 (citing Miller v. State ex rel. Meyers, 53 S.W. 2d 838 (Tex. Civ. App. 1932); Howard v. Clark, 589 S.W. 2d 748 (Tex. Civ. App. 1979); Struhm v. Berkeley, 229 Cal. App. 2d 278 (1964); Blue v. Stockton, 355 P. 2d 395 (Alaska 1960)).
  21. ANTIEAU, supra note 6, at 321 (citing Coney v. Topeka, 149 P. 689 (Kan. 1915); State ex rel. Ehring v. Bliss, 97 N.E.2d 671 (Ohio 1951)).
  22. ANTIEAU, supra note 6, at 321 (citing Lubin v. Panish, 415 U.S. 709 (1974) (to be placed on ballot where filing fees demanded were unconstitutional); Reynolds v. Conti, 270 N.E. 2d 505 (Ill. Ct. App. 1971); Soutar v. St. Clair Cnty. Election Comm’n, 54 N.W. 2d 425 (Mich. 1952); State ex rel. Smart v. McKinley, 412 N.E.2d 393 (Ohio 1980)).
  23. ANTIEAU, supra note 6, at 321 (citing Davis ex rel. Taylor v. Crawford, 95 Fla. 438 (1928)).
  24. Id. (citing State v. Land, 110 S.E. 180 (W. Va. 1921)).
  25. Id. (citing Knoll v. Davidson, 525 P. 2d 1273 (Cal. 1974)).
  26. Id. (citing Young v. Gnoss, 496 P.2d 445 (Cal. 1972) (unconstitutional residence requirement)).
  27. Id. (citing Hudson v. Nehell, 206 N.Y.S.2d 908 (1960)).
  28. Id. (citing McNally v. Bd. of Canvassers, 25 N.W.2d 613 (Mich. 1947)).
  29. Id. (citing Roemer v. City Canvassers, 51 N.W. 267 (Mich. 1892)).
  30. Id. at 320-22 (citing numerous cases).
  31. Walsh v. Boyle, 166 N.Y.S. 681, 685 (N.Y. App. Div. 1917) (finding ballot order placement was left to officials’ discretion in absence of showing of discrimination that “shock[s] the conscience” or violates “all rights, decency and fair play”).
  32. ANTIEAU, supra note 6, at 302; see Elmer v. Commissioner of Insurance, 23 N.E.2d 95, 98 (Mass. 1939).
  33. Id. at 304.
  34. State ex rel. Mackey v. Blackwell, 834 N.E.2d 346 (Ohio 2005) (per curiam) (holding the mandamus claim fails for want of jurisdiction at both appeals and state supreme court levels because, based on the relator’s request that the court “prevent” and “prohibit[]”certain actions and declare that other actions violated a state statute, the realtors were actually seeking prohibitory injunctions and a declaratory judgment) and State ex rel. Essig v. Blackwell, 817 N.E.2d 5 (Ohio 2004).
  35. See Mackey, 834 N.E.2d at 349 (per curiam) (noting the court must examine the petition to see if it seeks to compel or prohibit official action) (citation omitted).
  36. See Mackey, 834 N.E.2d at 350 (finding mandamus not a substitute for a statutory election contest); Ex parte Beattie, 124 So. 273, 275 (Fla. 1929) (rejecting the requested mandamus action because it was actually an election contest).
  37. See Anderson v. Ill. State Bd. of Elections, 589 N.E.2d 907, 909 (Ill. App. Ct. 1992) (finding mandamus is appropriately denied when “proper and timely use” of statutory election remedies would have avoided resort to mandamus) (citation omitted); State ex rel. Byrd v. Bd. of Elections, 417 N.E.2d 1375, 1379 (Ohio 1981) (upholding the denial of a writ of mandamus when the candidate failed to seek a recount or file an election contest within the statutorily allotted time frame, and instead waited six weeks to request a writ of mandamus); Harding v. State Election Bd. (Okla. 1946) (holding that filing a writ of mandamus 10 days after a protest to his candidacy was sustained given the proximity of impending election).
  38. See State ex rel. Citizens for Responsible Green Gov't v. City of Green, 118 N.E.3d 236, 241 (Ohio 2018) (denying writ of mandamus because “[g]iven the proximity of the November election, the committee lacks an adequate remedy in the ordinary course of the law.”); State ex rel. Willke v. Taft, 836 N.E.2d 536, 540 (Ohio 2005) (dismissing a mandamus action against the Governor because there was no enforceable legal duty owed by the Governor to the Plaintiffs); State ex rel. Frank v. Becker, 9 S.W.2d 153, 154 (Mo. 1928) (en banc) (denying writ of mandamus to compel the secretary of state to certify to county clerks that Plaintiff is the nominee after the primary election because to grant the writ would be to command the secretary of state to do something contrary to law).
  39. In re Wilbourn, 590 So.2d 1381, 1384-85 (Miss. 1991). See also Gracey v. Grosse Pointe Farms Clerk, 452 N.W.2d 471 (Mich. Ct. App. 1989) (holding, where administrative processes exist, mandamus may be limited to an order for the administrative remedies to proceed or to accelerate the process).
  40. ANTIEAU, supra note 6, at 298; see State ex rel. Bethke v. Bain, 240 P.2d 658, 963 (Or. 1952); Cislo v. City of Shleton, 405 A.2d 84, 91 (Conn. 1978).
  41. Id. at 299.
  42. Id. at 300.
  43. Id.
  44. Id.
  45. Id.
  46. See State ex rel. Mackey v. Blackwell, 834 N.E.2d 346 (Ohio 2005) (per curiam) (noting the adequacy of §1983 for federal civil rights violations, but not for state claims, because it can provide declaratory, injunctive, and monetary relief).
  47. When mandamus relief is not completely barred because of the election’s proximity, the nearness may nonetheless alter the relief. See Zaremberg v. Super. Ct., 8 Cal. Rptr. 3d 723, 730 (Ct. App. 2004) (issuing mandamus to a lower court to set aside its orders prohibiting a ballot measure from appearing on the ballot, but due to the nearness to the election, the ballot measure had to be placed on the ballot at a later election as there was insufficient time to add it to the originally contemplated election).
  48. South Carolina v. United States, 243 F. Supp. 3d 673, 681 (D.S.C. 2017).
  49. ANTIEAU, supra note 6, at 300-301, 303; see U.S. ex rel. Greathouse v. Dern, 289 U.S. 352, 353 (1933).
  50. Anderson v. Ill. State Bd. of Elections, 589 N.E.2d 907, 909 (Ill. App. Ct. 1992).
  51. Levin v. Second Judicial Dist. Court, 450 P.3d 911 (Nev. 2019).
  52. See, e.g., Berry v. Garrett, 890 N.W.2d 882, 885 (Mich. Ct. App. 2016) (reversing lower court issue of writ of mandamus); Nykoriak v. Napoleon, 954 N.W.2d 824 (Mich. 2021) (affirming lower court issue of writ of mandamus).
  53. Dep't of Revenue v. Carpet Warehouse, Inc., 676 P.2d 299, 300 (Or. 1984); Sturgess v. Guerrant, 583 S.W.2d 258, 260 (Mo. Ct. App. 1979).
  54. Hattaway v. McMillian, 859 F. Supp. 560, 565 (N.D. Fla. 1994) (alternative writ of mandamus); Kenosha Prof'l Firefighters, Local 414, IAFF, AFL-CIO v. City of Kenosha, 766 N.W.2d 577, 586 (Wis. 2009).
  55. State ex rel. Travers v. McBride, 607 S.W.2d 851, 854 (Mo. Ct. App. 1980) (applicability of prohibition to lower courts); ANTIEAU, supra note 6, at 479 (applicability of prohibition to administrative bodies). Prohibition is generally unavailable when public officials act non-judicially. Id. at 498.
  56. Arkansas Game & Fish Comm'n v. Mills, 265 S.W.3d 760, 762 (Ark. 2007).
  57. See Campaign to Elect Larry Carver Sheriff v. Campaign to Elect Anthony Stankiewicz Sheriff, 101 Ohio St. 3d 256 (2004).
  58. Donald J. Trump for President, Inc. v. Phila. County Bd. of Elections, 2020 Pa. Commw. Unpub. LEXIS 512, *19-*20 (Pa. Cmmw. Ct. 2020); In re McCracken Appeal, 88 A.2d 787, 788 (Pa. 1952).
  59. White v. Laird, 96 A. 318 (Md. 1915) (power of elections board to conduct recount involves exercise of discretion and is quasi-judicial).
  60. ANTIEAU, supra note 6, at 498; see Mansur v. Morris, 196 S.W.2d 287 (Mo. 1946).
  61. Okla. Const. art. VII, § 4; WIS. STAT. ANN. § 783.08; Ill. Const. art. VI, § 4.
  62. State ex rel. Travers v. McBride, 607 S.W.2d 851, 854 (Mo. Ct. App. 1980).
  63. In re Wilbourn, 590 So.2d 1381, 1385 (Miss. 1991) (citing Barnes v. Ladner, 131 So.2d 458 (Miss. 1961)).
  64. State ex rel. Abernathy v. Lucas Cty. Bd. of Elections125 N.E.3d 832, 835 (Ohio 2019).
  65. State ex rel. Newell v. Tuscarawas County Bd. of Elections, 757 N.E.2d 1135, 1138 (Ohio 2001) (Douglas, J., dissenting) (per curiam); see ANTINEAU, supra note 6, at 502. The hardship may need to be extraordinary and amount to a great and irreparable injury if the writ is denied.
  66. Newell, 757 N.E.2d at 1138.
  67. ANTIEAU, supra note 6, at 501 (failure to exhaust administrative remedies can lead to the request’s dismissal as premature).
  68. Id. at 500 (noting that the writ commonly issues despite the petitioner’s failure to object below when the question relates to public offices).
  69. Id. at 501. Petitioners may also need to demonstrate their status as persons “beneficially interested” in the defendant tribunal remaining within its jurisdiction. Id. at 536.
  70. For more on latches in the context of election litigation, see Chapter 10: Statutes of Limitations and Laches.
  71. Id. at 499. As long as the targeted election has not yet been held, prohibition can also prevent the ballot measures or candidates’ names from being placed on the ballot even if a protest hearing has been completed. See State ex rel. Hill Communities, Inc. v. Clermont County Bd. of Elections, 746 N.E.2d 1115, 1118 (Ohio 2001) (per curiam).
  72. ANTIEAU, supra note 6, at 499.
  73. Id. at 501.
  74. ANTIEAU, supra note 6, at 499; Simpson v. Police Ct., 117 P. 553 (Cal. 1911).
  75. See State ex rel. Knisely v. Jones, 274 Mo. 374, 379, 202 S.W. 1117, 1118 (1918).
  76. ANTIEAU, supra note 6, at 501; see Marvel Rare Metals Co. v. General Electric, 56 2d 832 (6th Cir. 1932).
  77. ANTIEAU, supra note 6, at 536; see Coughlin v. Seattle School Dist. #1, 621 P.2d 183, 186 (Wash. App. 1980).
  78. White v. Miller, 219 S.E.2d 123, 124 (Ga. 1975). When state contest statutes do not permit election contests based on the candidate’s lack of qualifications, or when laches would prevent this type of lawsuit because the qualification problems were known or discoverable before the election, quo warranto may nonetheless be available to protect the public from an unqualified or ineligible office holder. A state may also recognize quo warranto challenges to incorporation elections. See Donaghey v. Att’y Gen., 584 P.2d 557, 558 n.1 (Ariz. 1978) (en banc).
  79. Miller, 219 S.E.2d at 124.
  80. Id.
  81. See supra Chapter 9: Election Contests.
  82. Miller, 219 S.E.2d at 124. Although a losing candidate or a voter may be able to bring a quo warranto action, they are frequently brought by the state attorney general in relation to the individual who claims a right to the office, or in the state’s name. Id. at 124. If the attorney general fails to bring a quo warranto action when a private citizen brings him undisputed facts that demonstrate as a matter of law that an office is being usurped, the private citizen can seek a writ of mandamus to compel the attorney general to pursue the claim. See Donaghey, 584 P.2d at 558.
  83. See Donaghey, 584 P.2d 557.
  84. See State ex rel. Branch v. Pitts, 110 N.E.3d 87 (Ohio Ct. App. 2018).
  85. Reid v. Dalton, 100 P.3d 349, 353-54 (Wa. Ct. App. 2004).
  86. Id. at 354.
  87. Miller, 219 S.E.2d at 124-25; Noble v. Meagher, 686 S.W.2d 458, 462 (Ky. 1985) (Stephens, C.J., dissenting); but see Nelson v. Sneed, 83 S.W. 786 (Tenn. 1904) (contestant cannot also claim citizen quo warranto rights because different legal rights are at stake).
  88. Carleton v. Civ. Serv. Comm’n, 522 A.2d 825 (1987 Conn. App.).
  89. Nicolopulos v. City of Lawndale, 111 Cal. Rptr. 2d 420 (Ct. App. 2001).
  90. Id. at 422.
  91. Dunlap v. State ex rel. Durrett, 622 So. 2d 1305, 1306-07 (Ala. 1993).
  92. White v. Miller, 219 S.E.2d 123, 124-25 (1975).
  93. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009).
  94. Consol. Salmonid Cases, 713 F. Supp. 2d 1116, 1124 (E.D. Cal. 2010), supplemented (June 1, 2010).
  95. See Newsom v. Superior Ct. of Sutter Cty., 51 Cal. App. 5th 1093, 265 Cal. Rptr. 3d 582 (Cal. App. 3d 2020) (reversing the superior court’s grant of an ex parte temporary restraining order against the enforcement of an executive order regarding vote by mail because there was no evidence of irreparable harm or immediate danger and proper notice was not given to the Governor); Plocek v. Welhausen, 144 S.W.2d 631, 632-33 (Tex. Civ. App. 1940) (affirming the refusal to grant a temporary injunction ex parte because the time before the election was so short that the temporary injunction would actually be a permeant injunction and notice needed to be given to opposing parties).
  96. Fla. State Soc'y of Homeopathic Physicians v. Fla. Dep't of Prof'l Regulation, 487 So. 2d 374, 376 (Fla. Dist. Ct. App. 1986).
  97. Am. Trucking Ass'n v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).
  98. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 917 (9th Cir. 2003) (en banc) (per curiam); In re Wilbourn, 590 So. 2d 1381, 1384 (Miss. 1991) (identifying the ever-ticking twenty-day statute of limitations for an election contest as a problem if the certification of the election’s results were enjoined without a winner being announced).
  99. Sw. Voter Registration Educ. Project, 344 F.3d at 919 (noting voters’ election preparations would be wasted if the election was enjoined).
  100. Id. at 918-19 (finding that interfering with an impending election to be extraordinary but interfering with an election in progress because absentee ballots had already been mailed to be unprecedented, thus refusing to issue an injunction to stop the state from using previously decertified voting machines in a gubernatorial recall election).
  101. In re Wilbourn, 590 So. 2d at 1385.
  102. Sw. Voter Registration Educ. Project, 344 F.3d at 919 (noting that enjoining the election would be tantamount to telling voters who have already voted that their vote does not count and they must vote again, but noting that fewer qualms existed in postponing an initiative election that was operating under an already accelerated schedule).
  103. See, e.g., Republican Nat'l Comm. v. Democratic Nat'l Comm., 140 S. Ct. 1205, 1207 (2020) (staying the district court’s extension of the state absentee ballot receipt deadline); Paher v. Cegavske, No. 320CV00243MMDWGC, 2020 WL 2748301, at *6 (D. Nev. May 27, 2020) (denying request for preliminary injunction to enjoin the all-mail June primary election days before it was scheduled to occur); Tully v. Okeson, 977 F.3d 608, 611 (7th Cir. 2020) (denying requestion preliminary injunction to extend absentee voting after voting period already began).
  104. Id. at 918.
  105. Courts sometimes exceed their jurisdiction when they grant injunctions, such as when a court issued an injunction to move election contest proceedings from the statutorily designated tribunal to itself. In re Wilbourn, 590 So. 2d at 1385 (citing Ex parte Wimberly, 57 Miss. 437 (1879)).
  106. DeHoff v. Att’y Gen., 564 S.W.2d 361, 363 (Tenn. 1978).
  107. Reid v. Dalton, 100 P.3d 349, 353 (Wa. Ct. App. 2004).
  108. Landwersiek v. Dunivan, 147 S.W.3d 141, 149 n.9 (Mo. Ct. App. 2004).
  109. Clark v. City of Trenton, 591 S.W.2d 257, 259 (Mo. Ct. App.1979).
  110. In re Wilbourn, 590 So. 2d 1381 (counting votes, canvassing returns, and declaring the result are functions given to the legislature and not the courts, meaning that judicial resolution of a disputed election is inappropriate until the results are certified and a contest action is filed).
  111. DeHoff, 564 S.W.2d at 363.

Explore Related Documents