Category Archives: theory

Originalism and Expiration Dates

redistricting, Supreme Court, theory, Voting Rights Act

Tomorrow, the Supreme Court will hold a rare re-argument in Louisiana v. Callais on whether Section 2 of the VRA is unconstitutional as applied to redistricting. I’ve filed an amicus brief arguing that Shaw should be overturned—a point that my co-contributor Ned Foley recently agreed with on SCOTUSBlog. I will not rehash my amicus brief’s arguments against Shaw, which I have also made in my scholarship.

Here, I want to address the thorny question of the necessity of sunset provisions in statutes enacted pursuant to Congress’s Reconstruction Amendment enforcement authority. This claim popped up in Justice Kavanaugh’s concurrence and Justice Thomas’s dissent in Milligan. Similar versions appeared in SFFA and Shelby County. In my view, sunset provisions are not required under the original understanding of Congress’s Fifteenth Amendment enforcement authority.

One major reason that sunset clauses became the touchstone in this area of law is that Sections 4 and 5 of the VRA were time limited. The first preclearance regime was meant to last for five years. That wasn’t enough time to overcome nearly a century of disenfranchisement, so Congress reauthorized the preclearance regime in 1970, 1975, 1982, and 2006. It made perfect sense for the Court, in upholding the first four iterations of the preclearance regime, to note its temporary character. And when Justice Kennedy—who was not an originalist—announced Boerne’s congruence and proportionality test, he pointed to the VRA’s sunset provisions as evidence of a statute’s constitutionality.

Against this doctrinal backdrop, Pam Karlan explained back in the 1990s how Section 2 has a built-in expiration date. I agree with Karlan, but I would go farther. Put bluntly, the Court has confused a voluntary feature that Congress included in its most aggressive Fifteenth Amendment enforcement legislation with a requirement that must appear in all such statutes.

For an originalist Court pushing this temporal-limit theory, there is a deep irony. The Reconstruction Framers had two central motivations in ratifying the Fifteenth Amendment. The first was to enfranchise Black men in Northern and Border States. The second—and more relevant here—was to preserve congressional power over the Southern States after they were re-admitted to the Union. Congress had imposed fundamental conditions on the Southern States, but the enforceability and legality of those conditions was fiercely contested even in theRepublican Party. And prior to the Fifteenth Amendment, Congress lacked authority to regulate voting rights in the States. Thus, the Fifteenth Amendment was entrenched in the Constitution to create and maintain congressional power against States in perpetuity. Tellingly, the Reconstruction Congress’s Fifteenth Amendment enforcement legislation did not contain expiration dates. The Reconstruction Framers did not envision any temporal limit to their authority.

Indeed, to the extent there is post-ratification evidence in support of sunset provisions, it comes for the Redemption-era Court, not the Reconstruction Congress. In The Civil Rights Cases, the Court invalidated the Civil Rights Act of 1875’s ban on racial discrimination in public accommodations. When discussing Congress’s ThirteenthAmendment enforcement authority less than two decades after emancipation, the Court notoriously opined: “When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.”

To be clear, I am not making a genealogical claim that sunset provisions are problematic simply because they were endorsed by the Redemption-era Court, though the parallels between the dismantling of the First Reconstruction and the potential demise of the Second Reconstruction are difficult to ignore. More fundamentally, my claims are historical and institutional. Historically, sunset provisions are products of the doctrine—not the Constitution’s original public meaning. Institutionally, it is Congress—not the Court—that is tasked with enforcing the Fifteenth Amendment’s protections.

In this originalist age, it is imperative that we accurately reconstruct the past. If the past is going to rule us, we need to know what the past requires and what it permits. Requiring Congress to include a sunset provision when enforcing the Fifteenth Amendment is deeply ahistorical and indefensible on originalist grounds.

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“Constitutional Structure and Election Law”

theory

Manoj Mate has posted this draft on SSRN (forthcoming William & Mary Bill of Rights Journal). Here is the abstract:

Since Bush v. Gore, scholarship on election law has centered on a theoretical debate between rights-based and structural theory approaches, and the appropriate role and scope of judicial intervention in election law cases. However, these debates have not fully assessed the degree to which the Court’s approach to constitutional structure has fundamentally reshaped election law. Over the past two decades the Court has increasingly emphasized the importance of constitutional structure-based approaches in election law cases. This article analyzes these dynamics and advances a typology of constitutional structure-based approaches applied by the Roberts Court in election law cases. Drawing on scholarship on modalities of interpretation and insights on studies of constitutional structure in constitutional law and election law, I identify and examine three main categories of constitutional structure-based approaches in contemporary election law adjudication: historicist, structuralist, and background structure approaches. The article examines how these approaches are applied through close analysis of key cases involving the scope of congressional and state powers under the Elections Clause, Section 3 of the Fourteenth Amendment, the Voting Rights Act, partisan and racial gerrymandering, and application of the Anderson-Burdick framework in voting rights cases. The Court’s application of structure-based approaches has key implications. First, I argue that this typology of approaches suggests key insights for the proper scope and role of judicial intervention in election law cases. Second, these approaches also have important implications for advancing key structural values and goals related to the operation of democracy. Third, approaches to structure have implications for the nature and scope of protections for voting rights and rights-interest balancing. Finally, the article examines how the Court’s application of approaches to constitutional structure impact models of constitutional governance based on relative centralization and decentralization of power over electoral regulation. The article concludes by considering the implications of structure-based approaches on advancing constitutional and structural values related to elections and the right to vote.

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Thinking About the Harms from Gerrymandering

political equality, political parties, redistricting, theory

The following is a guest post from Sandy Gordon (NYU Politics), Doug Spencer (Colorado Law), and Sidak Yntiso (Rochester Poli Sci), discussing their newly published article — “What is the Harm in (Partisan) Gerrymandering? Collective vs. Dyadic Accounts of Representational Disparities” — in the (peer-reviewed) Journal of Legal Analysis.

As Texas, Missouri, and (likely) California plunge the country back into the latest round of redistricting wars, the overwhelming majority of coverage and commentary has focused on the collective consequences of re-gerrymandering: how will these maneuvers affect majority control of the House of Representatives come 2027, and how do they affect the relationship between the partisan makeup of the states in question and the partisan composition of their respective delegations to Congress? 

In a deeply polarized country with highly nationalized politics, the focus on collective consequences is understandable. And yet lost in the discussion is the impact of these maneuvers on the “dyadic” relationship between individual voters and their representatives. A dyadic perspective considers questions such as whether legislators share the values of their own constituents, whether they are competent, and whether they work hard for their communities. Not only are these the criteria by which many citizens judge their democracy; dyadic conceptions of representation also resonate with the geographic organization of Congress and the Constitution’s emphasis on individual, rather than collective, rights and harms. 

In our new article, “What is the Harm in (Partisan) Gerrymandering? Collective vs. Dyadic Accounts of Representational Disparities,” published in the Journal of Legal Analysis, we explore a general account that centers the dyadic relationship of voters and their representatives in debates about the fairness of districting plans. 

When is a Map Fair to Voters?

To capture the intuition, consider an imaginary state composed of nine voters—five Republicans and four Democrats—evenly divided among three districts. Three maps are proposed: A, B, and C. In Map A, Republicans have a 2–1 majority in Districts 1 and 2 and Democrats have a 1–2 majority in District 3. In Map B, Republicans have a 3–0 majority in District 1 and a 2–1 majority in District 2, while Democrats enjoy a 0–3 majority in District 3. In Map C, Republicans have a 3–0 majority in District 1, and Democrats a 1–2 majority in Districts 2 and 3.

Focus for the moment on a comparison between Maps A and B. Which is more fair? If all that matters is how closely the partisan breakdown of the elected assembly matches that of the electorate, there’s no meaningful difference between the two partitions: Both may be expected to generate a delegation consisting of one Democratic and two Republican legislators. And with nine voters and three legislators, this is as close as you can get to proportionality—one possible criterion for collective fairness. 

From a dyadic perspective, however, the maps are not the same—but why they differ depends on what voters ultimately care about. In Map A, six out of nine voters have a representative from their own party, while in Map B, eight out of nine do. So, if voters only care about having a representative who shares their values, Map B is a clear winner. But suppose voters are apprehensive of lopsided majorities—perhaps because these encourage shirking by incumbent legislators. In that case, Map A might be preferable.

Now look at Map C: no matter what collective or dyadic criterion you employ, this third map is unfair.

Our paper generalizes the intuition from these examples by presenting a stylized formal model that grounds the welfare of voters in terms of (a) the correspondence between their values and those of their legislator (as captured by co-partisanship); (b) legislator competence; and (c) legislator incentives to work hard on behalf of their constituents. 

The model yields measures of “representational disparity” that capture how fairly different groups of voters (e.g., Republicans and Democrats) are treated under a given map. As with collective metrics such as the efficiency gap and partisan bias, the measure can be tested across ensembles of millions of alternative maps, revealing whether an enacted plan is a true outlier or simply reflects the geographic distribution of a state’s voters.

Critically, these measures can be “tuned” to reflect features of the underlying political environment and the user’s commitment to different, potentially contradictory values. For example, if matching legislator and constituent partisanship is the overriding concern, then a map that makes districts maximally non-competitive might come closest to achieving that objective. But if motivating legislators to work hard on behalf of a broad range of constituents matters, then the measure will reward more competitive plans.

What the Evidence Shows

Relationship to existing measures. While our approach forges new conceptual ground, our measures will generally be correlated, though imperfectly so, with existing measures like partisan bias, efficiency gap, and declination. But situations may arise where our dyadic commitments lead to different substantive conclusions than collective ones would.

Examples from the paper. Using examples from a handful of states, our article shows that traditional metrics often miss the mark. For instance, in Massachusetts, Republicans rarely win congressional seats—not necessarily because of gerrymandering, but because their voters are too evenly spread out. Dyadic analysis reveals more nuanced harms: while all maps disadvantage Republicans collectively, some alternatives give them better representation at the district level. By contrast, in Florida and Pennsylvania, enacted maps emerge as extreme outliers under both collective and dyadic metrics, making the case for unfairness much clearer.

Analyzing the 2025 Texas and California Maps. Using the approach described in our article, we conducted an outlier analysis to assess the extremity of the enacted Texas and proposed California maps on dyadic representational grounds under two different “tunings” of representational disparity. Here’s a comparison of the 2021 and 2025 Texas maps with an ALARM ensemble of simulated maps. (In all graphs, the solid vertical line indicates zero disparity.)

As the figures indicate, the 2021 Texas map was already an extreme outlier irrespective of how the measure is tuned. The new map is even more extreme. 

Here’s our analysis of California: 

Our analysis suggests that according to the first version of the measure, which prioritizes matching constituent and legislator partisanship, the 2021 California map is not an outlier, but the 2025 proposed map would be. According to the second version, which rewards competitiveness, both maps are extreme outliers, but the 2025 plan would be worse. 

Why This Matters

It is certainly not clear (to us) that single-member districts are the most effective way to select our representatives. Yet it is the system we have, and a system of representation inescapably rooted in geographic districts must be evaluated using diagnostics that treat districts and their boundaries not merely as an inconvenience but as an intrinsic feature. Gerrymandering isn’t just about partisan balance sheets—it’s also about whether citizens can trust that their voices are heard in the halls of power.

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Election case curriculum videos

election law and constitutional law, Supreme Court, theory

Justin here. With the semester either beginning or around the corner, I wanted to lift up a series of great videos (illustrated, annotated, featuring case text, etc.) that the incomparable Guy-Uriel Charles and Sasha Natapoff have pulled together. Leading scholars (and also me!) each explain and analyze the text of a different seminal Supreme Court case. The videos are all shorter than 15 minutes long, and as the series editors suggest, “can be used to supplement the traditional written casebook and/or to deepen students’ engagement with key cases and doctrines.”

The direct link is https://CRBW.law.harvard.edu, and it’s all free for educators and nonprofits. Just register on the website if you’d like to take a look. (For crim pro faculty, there’s a crim pro version too.)

The roster (so far):

Get ’em while there’s still law to discuss!

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“Who Really Runs America?”

political polarization, theory

Jerusalem Demsas interviews Steve Teles for the Atlantic:

Something has gone wrong in American democracy. Though our diagnoses differ, the entire political spectrum chafes at the widespread dysfunction. Our traditional modes for understanding democratic decline—tyranny of the majority, corruption, erosion of trust, polarization—all of these shed some light onto our current circumstances, but they fail to explain how policies with broad public support don’t materialize.

While reporting on the democratic terrain in state and local government, I’ve become preoccupied with how easily minority interests are able to hijack broadly beneficial policy goals—often through mechanisms we view as democratically legitimate. Tools developed to push against a potential “tyranny of the majority” have allowed majorities to be subjugated to the will of minority interests time and again. Whether it’s by professional associations, police unions, homeowner associations, or wealthy individuals, majority rule has repeatedly been hijacked.

Steve Teles, a political scientist at Johns Hopkins University, has a similar diagnosis. In a new essay titled “Minoritarianism Is Everywhere,” he argues that America’s democratic deficits require a serious rethinking of liberal governance and values.

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Top Recent Downloads in Election Law on SSRN

theory

Here:

RankPaperDownloads
1.Misconstruing the Electoral Count Act: A Response to Evan A. Davis and David M. Schulte
Seth Barrett Tillman
National University of Ireland, Maynooth (NUI Maynooth) – Faculty of Law
Date Posted: 13 Jan 2025
Last Revised: 04 Feb 2025		875
2.The “Determinative Popular Vote”: Measuring the Margin in U.S. Presidential Elections
Mark Haidar and Aidan Calvelli
Harvard University – Harvard Law School and Princeton University, Department of Politics, Students
Date Posted: 19 Dec 2024
Last Revised: 29 Jan 2025		325
3.Coups and Punishment in the Constitutional Order
Anthony Michael Kreis
Georgia State University – College of Law
Date Posted: 29 Jan 2025
Last Revised: 29 Jan 2025		179
4.Originalism, Election Law, and Democratic Self-Government
Joshua SellersU
niversity of Texas at Austin – School of Law
Date Posted: 04 Feb 2025
Last Revised: 04 Feb 2025		145
5.The Good Lawyers of January 6
W. Bradley Wendel
Cornell University – School of Law
Date Posted: 13 Dec 2024
Last Revised: 13 Dec 2024		135
6.“The Real Preference of Voters”: Madison’s Idea of a Top-Three Election and The Present Necessity of Reform
Edward B. Foley
Ohio State University (OSU) – Michael E. Moritz College of Law
Date Posted: 15 Jan 2025
Last Revised: 15 Jan 2025		101
7.The Good, the Bad, and the Ugly: Redistricting Commissions in the 2021 Cycle
Samuel Wang and Zachariah Sippy
Princeton University – Princeton Neuroscience Institute and Independent
Date Posted: 10 Jan 2025
Last Revised: 10 Jan 2025		100
8.Campaign Finance and Political Polarization
Richard H. Pildes
New York University School of Law
Date Posted: 13 Dec 2024
Last Revised: 10 Jan 2025		99
9.People v. The Court: The Next Revolution in Constitutional Law
David L. Sloss
Santa Clara University – School of Law
Date Posted: 17 Dec 2024
Last Revised: 22 Jan 2025		91
10.A Democratic Rule of Law
Jedediah S. Britton-Purdy
Duke University School of Law
Date Posted: 17 Dec 2024
Last Revised: 18 Dec 2024		72
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“Originalism, Election Law, and Democratic Self-Government”

Supreme Court, theory

Joshua Sellers has posted this draft on SSRN (forthcoming, Florida Law Review). Here is the abstract:

Originalism has a democracy problem. Among prevailing theories of constitutional interpretation–pragmatism, common-law constitutionalism, popular constitutionalism, and Elysian representation-reinforcement–originalism uniquely creates a legal environment in which antidemocracy is viable. That is, it uniquely imperils democratic structures, practices, and norms that are essential to modern democratic self-government. This fundamental flaw is most apparent when considering the relationship between election law (a conspicuously non-originalist area of law) and originalism. Accordingly, this Article uses election law as a heuristic for illustrating one of originalism’s central deficiencies. It is the first extended treatment of election law and originalism–a topic of heightened salience following the Supreme Court’s originalist turn.

Looking forward to reading this!

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Congratulations to Gene Mazo, Editor of the New Book, “The Oxford Handbook of American Election Law”

pedagogy, theory

Kudos are in order for Gene Mazo, who had a task much harder than herding cats in producing The Oxford Handbook of American Election Law. I just got my massive copy in the mail, and it is full of insightful and synthetic articles from many of the leaders in United States election law. (My contribution is on the past, present, and future of election law reform in the United States.)

Gene has been more willing than most to take on responsibilities to advance the field. They take a tremendous amount of work. He deserves great credit for getting this wisdom on the page.

Some of the contributors to the volume will participate in an ELB Book Corner session down the line. Congratulations!

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“Abuse of Discretion: The U.S. Supreme Court’s Indefensible Use of Evidence in Election Law Cases”

campaign finance, election administration, redistricting, Supreme Court, theory

I have posted this draft on SSRN. Here is the abstract:

This is the written version of a keynote address delivered to the Southern California Law and Social Science (SOCLASS) Forum, “Elections, Law and Democracy” Conference, Whittier Law School, March 28, 2014. Using examples from ballot access cases, campaign finance cases, redistricting cases, and election administration/voter identification cases, the address makes two arguments: First, in the Supreme Court’s election law cases, talk about “facts” and “evidence” is the tail wagging the dog. The Court is imposing value judgments in these cases, but sometimes camouflaging them behind a search for evidence, or worse yet, asserting facts about the state of the evidence which are not borne out by the evidence. This is true for both liberal and conservative Justices. Second, the Court needs to take one of two paths to correct its approach. Either it needs to get serious about facts and evidence in these cases, a change which has the potential to profoundly change our laws about campaign finance, voter identification, gerrymandering, and ballot access. Or the Court needs to stop camouflaging its value judgments and admit that facts don’t matter and no amount of evidence will matter given the Justices ideological commitments. I strongly favor the first approach, but the second approach would be better than the status quo when it comes to transparency and intellectual honesty. After discussing these two points the paper turns to a final question: how should social scientists and law professors who value social science respond to the Court’s misuse and abuse of social science in the election law cases?

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Coming Next Week to ELB: Symposium on the 25th Anniversary of Issacharoff and Pildes, “Politics as Markets”

PoliticsMarkets25, theory

One of the most important theoretical contributions to election law in the past generation has been Sam Issacharoff and Rick Pildes’s article, Politics as Markets: Partisan Lockups of the Democratic Process, 50 Stanford Law Review 643 (1998). (The article was part of an election law symposium for the 50th anniversary of the Stanford Law Review; Nate Persily was President of SLR that year. I, as a new law professor, wrote this response to their article, Richard L. Hasen, The “Political Market” Metaphor and Election Law, 50 Stanford Law Review 719 (1998).)

Next week, to commemorate the 25th anniversary of the publication of Politics as Markets, we will have a special symposium assessing its significance and pondering its implications for the future. It will kick off next Monday with some introductory remarks from Sam and Rick P.

Below the fold you can find the abstract to Sam and Rick’s original paper, now posted for easy access on SSRN.

Continue reading Coming Next Week to ELB: Symposium on the 25th Anniversary of Issacharoff and Pildes, “Politics as Markets” →
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Social Choice Theory, the Independent State Legislature Theory, Insincere Voting, and the Missing Liberal Dissents in Moore v. Harper

Supreme Court, theory

As I have explained, although the Supreme Court in Moore v. Harper rejected the most extreme version of the independent state legislature theory, it endorsed another theory that amounts to a “time bomb:”

It is indeed a cause for celebration that the United States Supreme Court, on a 6–3 vote in Moore v. Harper, rejected an extreme version of the “independent state legislature” theory, which could have upended the conduct of elections around the country and paved the way for state legislatures to engage in election subversion. But after the celebration comes the inevitable hangover, and with all the hoopla, it is easy to miss that the Supreme Court has now set itself up, with the assent of the liberal justices, to meddle in future elections, perhaps to even decide the outcome of future presidential elections (as it has done in the past). Chief Justice John Roberts drove a hard bargain….

But Moore is not all good news. In the last part of his majority opinion for the court, the chief justice got the liberal justices to sign on to a version of judicial review that is going to give the federal courts, and especially the Supreme Court itself, the last word in election disputes. The court held that “state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

I wanted to expand more on why the liberal Justices may have signed onto this part of the majority opinion in Moore (It is Section V) rather than concurring in part and dissenting in part. (And I think this explanation may explain something about the coalitions in Bush v. Gore, the 2000 case ending the presidential election dispute over Florida’s electoral college votes.) But first a detour about . . . ice cream.

Imagine that there are three people deciding together which pint of ice cream to buy at the supermarket. Here are the three people and their preferences:

Alice: Vanilla > Chocolate > Strawberry

Brian: Chocolate > Strawberry > Vanilla

Carlos: Strawberry > Vanilla > Chocolate

If they each vote for their favorite, it’s a three way tie. So suppose the vote first is on vanilla v. chocolate. Vanilla wins. Then vanilla is put up against strawberry, and strawberry wins. Then strawberry against chocolate, and chocolate wins. This is a voting cycle that comes under Arrow’s impossibility theorem. There needs to be some way to break the cycle.

Consider what would happen if I’m right about the preferences of the Justices below:

Roberts/Kavanaugh/Barrett: Weak ISLT > Strong ISLT > No ISLT

Thomas/Alito/Gorsuch: Strong ISLT > No ISLT > Weak ISLT

Kagan/Sotomayor/Jackson: No ISLT > Weak ISLT > Strong ISLT

If the liberals just allow the two conservative coalitions to vote, we end up with Strong ISLT (because both prefer Strong ISLT to No ISLT), the last choice of the liberals. But if the liberals vote for weak ISLT, then they can peel the Roberts group away. This is what I mean when I talk about Roberts driving a hard bargain. This is how the liberals could get out of the cycle.

(For those who think I’m wrong and the Thomas group would prefer Weak ISLT to No ISLT, read Thomas’s dissent going hard after Weak ISLT).

Similar logic explains why the conservative group of Rehnquist, Scalia, and Thomas in Bush v. Gore not only adopted the weak version of ISLT but ALSO concurred in the equal protection rationale in the per curiam opinion (authored, we now know, by Justice Kennedy). Scalia later said the equal protection rationale is, “as we say in Brooklyn, a piece of shit.”

If the Rehnquist group voted sincerely rather than strategically, there would be a majority of Justices rejecting the equal protection rationale (the Rehnquist group and the four liberals) and a majority of Justices rejecting the weak ISLT rationale (Kennedy, O’Connor, and the four liberals). Bush would still win even though a majority of Justices rejected both theories on which he won. That was intolerable for such a politically sensitive case.

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“Dividing the Body Politic”

political polarization, theory

Jim Gardner has posted this draft on SSRN (forthcoming, University of Chicago Law Forum). Here is the abstract:

It has long been assumed in large, modern, democratic states that the successful practice of democratic politics requires some kind of internal division of the polity into subunits. In the United States, the appropriate methods and justifications for doing so have long been deeply and inconclusively contested. One reason for the intractability of these disputes is that American practices of political self-division are rooted in, and have been largely carried forward from, premodern practices that rested originally on overtly illiberal assumptions and justifications that are difficult or impossible to square with contemporary commitments to philosophical liberalism.


The possibility of sorting things out in a rational way – long the object of legal and political science scholarship in the field – has recently been greatly complicated by an unexpected resurgence of various forms of illiberalism, especially populist authoritarianism, a conception of popular self-governance that rejects liberal understandings of democratic processes and politics. This new political alignment is especially complicating because liberals and illiberals disagree profoundly about the nature of the body politic, its susceptibility to division, and the significance and proper goals of such division.

This article traces the evolution of American practices of political self-division from premodernity through the present, explores how present political trends affect longstanding disputes over practices of legislative districting, and concludes with a brief examination of some possible ways of establishing a workable modus vivendi.

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#ELB20th: 20 Years of the Election Law Blog, and 20 Years of American Democracy’s Slow (and Faster) Deterioration: A Call for Vigilance and Resilience

#ELB20th, Supreme Court, theory

Twenty years ago this month, I began the Election Law Blog. It was a continuation of sorts of news and commentary that I had been sharing with election law professors, first via a listserv Dan Lowenstein and I created that was housed at Chicago-Kent, starting in 1995, when I first began teaching. It seemed much more efficient than cutting and pasting in emails to post the material on a weblog, an innovative type of website introduced to me by my then-Loyola Law School colleague Larry Solum. I modeled it after the new website How Appealing by Howard Bashman, and content first was posted at blogspot (https://electionlaw.blogspot.com). You can still see the early posts there. I’d now call the look ugly but functional. One observer called it “early mySpace.”

The first ELB blog post, Feb. 18, 2003

ELB has been a labor of love and a fourth child, always demanding my attention. Being the first mover in the field certainly helped me solidify my reputation, as I pitched blog posts to new bloggers like Ben Smith to help spread the word. Blog posts also did (and still do) go out to an election law listserv community made up of about 1300 people. There, blog posts often generate spirited debate but also a sense of shared purpose and, usually, a commitment to disagree civilly.

Later, Twitter became the most common way that people found my blog posts, and I posted there a lot (too much!) until the Elon Musk takeover convinced me to scale back. ELB started as a solo blog but I have gradually added contributors and guest blog posts, both to lessen the load and to increase the diversity of voices in the field. Today it is a far richer site because of these additional voices.

The next month will feature posts from ELB contributors and other friends of ELB, reflecting on changes in election law over the 20 years of the blog. I will open with this first post with my observations on how things have changed in the last two decades, and I may chime in again at the end of the period to respond to some of the reflections.

ELB 20th

Ronald Reagan was famous for asking during the 1980 presidential campaign, “Are you better off now than you were 4 years ago?” If we ask this question about the state of American democracy comparing now to 20 years ago, and particularly the role of the Supreme Court, we would have to say we have seen a slow but steady deterioration.

Consider first voting rights. In 2003, when this blog started, jurisdictions with a history of racial discrimination in voting had to submit their voting changes for federal approval (or “preclearance”) and had to prove changes would not make minority voters protected by the Voting Rights Act worse off. In 2013, the Supreme Court killed off the precelarance regime in its Shelby County v. Holder decision. In 2003, Section 2 of the Voting Rights Act was read (thanks to the Supreme Court’s 1986 decision, Thornburgh v. Gingles) to give minority voters a fair opportunity to elect candidates of their choice it legislative districts. Today, that ruling is under a shadow as the Supreme Court considers the Milligan case (expected by June). It has already been undermined by earlier decisions such as Abbott v. Perez. And the Court has already severely weakened Section 2 in the vote denial context in the Brnovich decision of 2021.

In 2003, as the blog started, Congress had passed the first meaningful campaign finance law in a generation in the McCain-Feingold law. We were waiting to see in February 2003 of what the courts were was going to do with a law that was meant to limit the role of big money in politics and provide voters with an effective system of campaign finance disclosure. Later in 2003, the Supreme Court upheld the key parts of the law in McConnell v. FEC, confirming and expanding an earlier ruling (Austin) limiting independent spending by corporations and labor unions.

By 2010, after Justice Sandra Day O’Connor left the Supreme Court and was replaced by Justice Alito, the Court’s campaign finance rulings have done a 180 degree turn toward deregulation. The Court in the 2010 Citizens United v. FEC case reversed Austin and parts of McConnell, freeing corporate spending with language that inexorably led to the creation of super PACs and the effective demise of meaningful campaign finance limits for political players.

At the time of McConnell, opponents of limits touted disclosure as a more narrowly tailored solution to issues of money in politics. Today, disclosure has become porous once again, as creative lawyers funnel money through nondisclosing nonprofits such as 501(c)(4)s. At the same time, the Supreme Court in cases like AFPF v. Bonta has signalled it is going to take a harsh look at campaign finance laws going forward. As I recently wrote in a draft law review article honoring the scholarship of nonprofit law professor Ellen Aprill, it is easy to imagine, though the use of nonprofit plaintiffs, “a world in which many of the remaining regulations of money in politics could well be struck down as unconstitutional or rendered wholly ineffective by a Supreme Court increasingly hostile to the goals of campaign finance law and extremely solicitous of religious freedom.”

There are other troubling signs on the horizon too such as a threat that the Supreme Court will shut down efforts by state supreme courts (and perhaps voters acting through the initiative process to rein in partisan gerrymandering). Attacks on the initiative process by state legislatures shuts off one of the few avenues to counter democratic backsliding.

These threats are about the slow devolution of American democracy, brought on by a judiciary increasingly hostile to democratic initiatives and intense partisan competition that has raised incentives for partisan manipulation of election rules.

But things are in fact much worse than just the slow devolution. I never expected to see it when I began blogging in 2003, but we cannot take peaceful transitions of power for granted anymore in the United States. No one wondered whether conservative Republican George W. Bush would leave office in early 2009 when he was being replaced with liberal Democrat Barack Obama. On the day of Obama’s inauguration, I blogged: “Regardless of your politics, today is a day to celebrate the remarkable peaceful transitions to power that occur in this country with each presidential transition. It is something we should not take for granted.”

This is no longer true. The events during and after the 2020 election showed that much of our hyperdecentralized, partisan system of election administration is open to manipulation. The new threat of election subversion, a term I never even thought of in relation to the United States in 2003, is the main focus of my scholarly concerns today.

It would be easy to become defeated by the slow and fast threats. But I flag them here, and write about them in my general work, as a wake-up call that we cannot take democracy for granted and it needs work. The defeat of many election deniers in the 2020 elections is one hopeful sign, as is bipartisan congressional action to fix the Electoral Count Act. These took organizing and perseverance, and cross-ideological coalition building. Now is the time for more work, not less.

I hope my next project can help take us there. But whether it only gets us a little out of the starting gate or moves us much further along, I plan on continuing the ride, at least for now, with help from many friends.

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“Faulty Textbooks: The Strip Mining of Anthony Downs’ ‘Economic Theory of Democracy'”

theory

New article by Steven Hill at DemocracySOS that does a deep dive into Anthony Downs’ seminal work, Economic Theory of Democracy, and its ramifications for today’s politics. In particular, the article focuses on how Downs’ work has been misrepresented so as to mask the instability and polarization of the U.S. political system. Check it out!

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