I have posted a revised version of this paper (forthcoming, Stanford Law Review) to take into account the death of Justice Scalia. Here is the revised abstract:
This Essay describes the path of election law jurisprudence in the Roberts Court and then considers two questions. First, what explains why the Court, while shifting in a strongly conservative direction, had not moved more extremely to the right? Second, what options has the Court left for election reformers who are unhappy with the strongly conservative, although not maximally conservative, status quo?
On the first question, a combination of factors appears to explain the trajectory and speed of the Roberts Court’s election law decisions. The Roberts Court had been fundamentally conservative, but for jurisprudential, temperamental, or strategic reasons, Justices who have held the balance of power appear to prefer incrementalism to radical change. Mandatory appellate jurisdiction appeared the best way to force the Roberts Court’s hand, and it often but not always led to a conservative result. Nearly half of the Roberts Court’s election cases came on mandatory jurisdiction. Finally, the five conservative Justices were not monolithic in their views and are capable of surprise.
On the second question, the Court had left very limited space for reform in certain areas, such as campaign finance. Where the Court has greatly constrained choice, only minor improvements are possible absent a change in the Supreme Court’s personnel. In these areas, the problem is not that reformers have a “romanticized” vision of democracy; it is that the structural impediments erected by the Court have hobbled meaningful reform efforts. In contrast, in areas in which the Court has mostly left room for decentralized election law approaches, such as in the arena of election administration, election fights are becoming both legal and political. Much of the space for reform efforts depends upon the future composition of the Court.
Part I briefly describes the path of election law in the Roberts era across key election law areas including campaign finance, voting rights, and election administration. Part II explains why the Roberts Court was deeply conservative but not consistently maximalist. Part III considers the space for election reform in the Roberts Court era and beyond.