Election Law

Election Lawyers Gotta Eat

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Now that campaign season is over, it’s time for the defamation season! Scads of down-ticket candidates have brought lawsuits against their opponents for slanderous advertising during their campaigns.

I guess the presidential election wasn’t close enough for lawyers to make any money off of it.

According to the National Law Journal, even the ACLU sees limited value in bringing these post election actions:

But unless the line of truth is clearly crossed, First Amendment advocates note, negative campaign ads will continue to roll.

“Democracies are messy,” said Kary Moss, executive director of the American Civil Liberties Union of Michigan. “And the reality is that the First Amendment does provide wide latitude for candidates to make their case to the people.”

First A-what? But this is America! You can’t say that your opponent is “soft on sexual predators” in America.

The highest profile lawsuits after the jump.


The Minnesota Senate race between Norm Coleman and Al Franken is headed for a mandatory recount. In the meantime, Coleman is suing Franken for hurting his feelings:

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Republican Senator Norm Coleman is suing Democratic challenger Al Franken over TV and radio ads that allegedly contained lies about him. The ads included statements that Coleman was named “the fourth most corrupt senator in Washington” and lives in a Washington apartment “almost rent free.”

Defamation lawsuit are even happening between members of the same party:

In Florida, John Dicks, a congressional candidate who lost in the Democratic primary is suing the winner of that face-off, claiming his opponent falsely portrayed him as being responsible for an investor losing thousands of dollars in a bad investment.

Please note that Dicks’s opponent, Bill Mitchell, lost in the general election. Would that we lived in a simpler time when dueling allowed the laws of Darwin to proceed untrammeled by too much talking.

But the highest profile lawsuit undoubtedly involves newly elected North Carolina Senator Kay Hagan against recently embarrassed ex-North Carolina Senator Elizabeth Dole. Dole ran a television ad which:

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[A]ccused [Hagan] of having ties to an atheist, political action committee. The ad linked Hagan to a group called the Godless Americans, stating “A leader of the Godless Americans PAC recently held a secret fundraiser in Kay Hagan’s honor.” It ended with a female voice saying, “There is no God.”

The long lines, “provisional ballots,” general confusion, Congressional recounts, and the state of Virginia should really give election lawyers enough work. These are things lawyers can do that would help American democracy. Going after free speech, even if you have a minuscule legal hook to hang it on, is not a helpful role.

The campaigns are over, and so are the ads — but not the lawsuits [Law.com]

Earlier: Election Shenanigans Watch: All Hell is Breaking Loose in Virginia

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