Elizabeth Lee Thompson, Southern Methodist University Dedman School of Law, has published Mandamus as a Democracy Tool, which is forthcoming in the Denver Law Review:
Legal scholars recognize the centrality of state courts and procedures to United States democracy but the study of state proceedings and their impact represents a largely unexplored arena. This Article illuminates one largely ignored procedural area—the writ of mandamus, which is a centuries-old writ recognized in all fifty states that a court issues to compel performance of a duty by a court or public official. The Article examines mandamus concerning public officers—specifically governors and secretaries of state—through an empirical study of 497 state cases over the last almost two centuries.--Dan Ernst
The Article composes the first empirical national study of mandamus petitions seeking to command action by public officers. The central conclusion is that mandamus forms a valuable democracy tool for citizens, particularly for citizen-directed litigation aimed at pressing public officials to correctly conduct elections. This principal conclusion contributes to a range of insights, including the predominance of mandamus cases concerning officials’ duties to conduct elections and certify candidates—and how these election cases display how individuals employed mandamus to press their democratic rights. The Article also recognizes the related trend of citizens employing mandamus to assert complaints arising from initiative and referenda processes, a finding that underscores how mandamus repeatedly supported direct democracy efforts.
Moreover, the Article brings a new perspective to recent scholarship that notes an increased politicization and frequency of state court mandamus filings and the related area of original jurisdiction. In contrast, this Article—with evidence from hundreds of cases—uncovers individuals’ and political groups’ enabling use of mandamus, including through its somewhat increased use over the last quarter century. Although recognizing mandamus’s potential drawbacks, the Article seeks to establish and encourage the role of mandamus as an accessible and powerful mechanism to support citizens’ rights and hold public officers accountable to perform duties.
