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.”
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.
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.
Thanks as always for reading, for passing along tips, and for sharing your feedback.