Nationwide, election litigation has taken off since the turn of the century, according to a forthcoming Stanford Law Review study by Loyola Law School professor Rick Hasen. He documented 361 cases that reached state or federal courts in 2004 and 297 cases last year, encompassing campaign finance and redistricting challenges as well as voting administration disputes. Before 2000, he said, the average was 94 cases per year.
But Hasen said only a small percentage of the cases involve lawsuits by a candidate over the results of an election.
As a result, the case law directly applying to the questions in this election is limited. The most famous recent election case is Bush v. Gore, a much-debated U.S. Supreme Court ruling that effectively ended the 2000 presidential race. In its 5-4 decision, the court tried to tailor its decisions to the facts at hand, noting that "the problem of equal protection in election processes generally presents many complexities."
Without many cases to consult, Minnesota's Supreme Court might have room to maneuver.
"One of the problems when you don't have precedent is that opens up the ability for judges to be much more creative and their creativity may reflect their partisan viewpoints," said Pitts, the Indiana University professor. "Precedent can do a pretty good job of cabinning the partisan preferences of judges."