Over at Common Ground Democracy, I’ve posted “The Senate Has Surrendered Its Constitutional Responsibilities,” explaining that the existing electoral system has caused the Senate to fail in its constitutional role of thwarting presidential despotism and “electoral reform can restore the Senate to its essential role of protecting against an autocratic president.”
I want to call on members of the election law community who agree this perspective to share their expertise in light of the current situation that the nation faces. We are in the midst of significant public discussion of whether the United States is now experiencing a constitutional crisis or only on the verge of one. Prominent law professors who specialize in constitutional law are called upon to evaluate the circumstances and offer their views on whether there is a way out of this predicament and, if so, what. Most of the discussion has focused on whether or not the federal judiciary can protect the rule of law, including the Constitution, from a president who seems determined to destroy the existing system of checks and balances and convert the country into an autocracy. Relatively little of this public discussion has concerned the role that election law has played in getting the country into this mess or, especially, what potential changes to election law could protect the country from similar danger in the future (assuming the Constitution is capable of withstanding the present challenge).
If America is to understand how and why it got to where it is now (the proper diagnosis of the malady) and what must be done to put its constitutional system back on sound footing (the proper prescription for the cure), those of us in the field of election law will need to supplement the analysis being provided by professors of constitutional law. As someone who has had the privilege to teach both constitutional law and election law for over three decades, I appreciate what’s distinctive about both fields as well as the degree to which they overlap. In light of what I have learned over this time, I earnestly believe that what’s happening to the Constitution cannot be understood without the addition of a distinctive election law perspective. My Common Ground Democracy essay on how and why the Senate has failed us, like my recent scholarship on the relationship of Madisonian constitutional theory and electoral system design, is an effort to contribute to this endeavor. I look forward to reading what other election law scholars believe is called for in the current moment.