Jessica Bulman-Pozen and Miriam Seifter have posted this draft on SSRN (forthcoming, Wisconsin Law Review). Here is the abstract:
Among the threats to American democracy, the most serious may also be the most banal: that future elections will be compromised by quiet changes to the law. State legislators across the country have passed bills that give them power to reject the will of voters. They have established sham audits and investigations. And they have introduced new criminal offenses that undermine professional election administration. Power-shifting legislation, audits, and criminal penalties advertise their fealty to law, but they threaten the franchise and electoral integrity as well as nonpartisan, expert election administration. Because of their ostensibly legal, even legalistic, character, however, these forms of election subversion complicate ordinary judicial countermand. Federal courts, in particular, have foreclosed many of their own means of responding to such measures.
This essay, written for the University of Wisconsin Law School Symposium on Interpretation in the States, describes why state courts are well situated to counter the new election subversion. Building on our prior work exploring the democracy principle in state constitutions, we explain how the text, structure, and history of states’ foundational documents privilege popular sovereignty, majority rule, and political equality. After canvassing emerging threats to elections across the country, we then explain how state courts might apply the democracy principle to address the new election subversion.