Against this purported historical backdrop, the author argues that judges should adopt a more “hands-off approach” to modern conflicts over state laws that affect voting rights, which are characterized as “partisan bickering” that courts are ill-suited to resolve. Although the note acknowledges that such a shift would entail “risks for democracy,” it concludes that “it is nonetheless required as a matter of textual fidelity.”
As with all student writing in the Harvard Law Review, the note is unsigned. It might have gone unnoticed, too, had HLR’s official Twitter account not helpfully omitted much of the legal jargon from a promotional tweet on Saturday afternoon. “Free and fair presidential elections are a cornerstone of American democracy, but are they required by the Constitution?” it asked. “This Note says no.” Under its preferred approach, it added, states would even retain discretion over whether to hold presidential elections at all.
As you might expect, this little thought exercise earned its fair share of criticism. The most recent election was marred by the losing candidate’s dogged insistence that nefarious forces had robbed him of victory. Since then, legislatures in Republican-controlled states have championed this narrative, pushing a blizzard of voter suppression bills designed to make the next lost election a little easier for their preferred candidate to win. In context, this note comes off as less esoteric scholarship than part of manufactured consent for eroding democracy, laundered through one of legal education’s most prestigious brands.
Its author is Alexander Guerin, a former HLR editor who is now clerking for Judge Jerry Smith, a Reagan appointee on the U.S. Court of Appeals for the Fifth Circuit. In an email exchange, Guerin characterized the note’s conclusions as “a lot less exciting than people realize.” “At the risk of sounding a bit flippant, I think it’s tough to argue that Anderson-Burdick makes a significant difference in whether the United States is a democracy,” he said. He attributed the backlash to the “really stupid tweet,” which he says he intended as a joke in the style of the New York Times Pitchbot Twitter account—which, incidentally, retweeted it. “I genuinely did not consider that it was about to be transmitted to a larger audience with access to none of the necessary context,” Guerin wrote, adding that he regrets it.