Interference with the Democratic Process as Public Nuisance

Richard C. Boldt & Donald G. Gifford

This Article argues that the tort of public nuisance provides a vehicle for holding accountable those engaged in antidemocratic conduct. Recent history suggests that neither the criminal justice system nor constitutional checks and balances are always up to the task. Following the 2020 election, some supporters of President Trump stormed the Capitol to prevent the counting of the electoral votes. Some also tampered with election machines and intimidated election workers and voters. Following the 2024 election, the criminal charges against Trump were dismissed, and immediately upon his inauguration, Trump issued pardons or commuted the sentences of his followers who had been convicted for their involvement in the January 6, 2021 attack on the Capitol. The Senate failed to convict the President on articles of impeachment for instigating the January 6th insurrection, and the Supreme Court delayed Trump’s criminal trial, depriving voters of knowing the outcome, and then granted the former President expansive new immunity from prosecution. It is likely that our nation will again face similar attacks on democratic governance at some point in the future.

Courts and scholars agree that the tort of public nuisance protects against violations of rights held in common by members of the public. The rights of democratic participation comprise such rights. To mitigate concerns that the boundaries of the tort are vague, we suggest that courts initially protect only those rights clearly delineated by the Constitution, federal statutes, and well-defined common law. Our primary objective is not to expand the conduct deemed unlawful, but rather to assure that accountability remains when other remedies prove inadequate, or charges are declined, dismissed, or pardoned for illegitimate political reasons. State common law torts, including public nuisance, are largely immune from the immediate effects of extreme political movements. Either state attorneys general or private citizens who suffer a “special injury” have standing to file the action, and remedies include both damages and injunctive relief.