I am pleased to welcome Nick Stephanopoulos to the ELB Book Corner, writing about his new book, Aligning Election Law. This is the third of five posts:

My posts so far about my new book, “Aligning Election Law,” have addressed the concept of alignment and the extent of alignment in modern American politics. That’s all well and good, you might say, but what does it have to do with law? Democratic theorists and political scientists might be interested in alignment, but why should public lawyers care about it? In fact, several modalities of constitutional interpretation indicate that alignment isn’t alien to our legal order. These analytic modes certainly don’t compel the recognition of alignment, but they do make its embrace plausible.

Consider the constitutional text. “We the People,” the Preamble proclaims, “establish this Constitution” in order to “promote the general Welfare.” Jurisdiction-wide, collective, policy alignment isn’t the only possible definition of the general Welfare, but it’s at least a reasonable one. It equates the general Welfare with the policies people actually want from their government. “The House of Representatives shall be [elected] by the People,” Article I continues. Popular election isn’t synonymous with representational alignment, but the two concepts do dovetail nicely. Popular election, after all, is the most aligning feature of our democratic order. And Article IV “guarantee[s] to every State . . . a Republican Form of Government.” Popular sovereignty—government by the people—is the essence of republicanism, and it’s the core of alignment, too.

Or take the intentions of the Constitution’s drafters. James Madison wrote that “[p]ublic opinion sets bounds to every government” and “must be obeyed by the government.” This is a more unequivocal endorsement of congruence between public policy and public opinion than you’ll find in my book. John Bingham, the primary author of the Fourteenth Amendment, similarly declared, “If there is anything settled under the American Constitution . . . it is the absolute, unquestioned, unchallenged right of a majority of American [eligible] citizens . . . to control [a state’s] entire political power.” This embrace of majoritarian alignment underpins the provision he penned, the fountainhead of modern election law.

The most common method of constitutional interpretation, the analysis of precedent, further strengthens alignment’s legal pedigree. In the 1960s decision that established the courts’ approach to voting restrictions, Chief Justice Earl Warren wrote that heightened scrutiny is warranted when a plaintiff mounts “a challenge [to] this basic assumption” that “the institutions of state government are structured so as to represent fairly all the people.” In my vocabulary, this is a call for more stringent review when the crux of a lawsuit is jurisdiction-wide, collective, representational misalignment. In the 1960s case that launched the reapportionment revolution, Chief Justice Warren added that, because “legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will.” This is another acknowledgement of jurisdiction-wide alignment as a normative—and constitutional—ideal.

If the courts were to recognize alignment as a legal principle, it could function as either a sword or a shield. As a sword, a plaintiff would attack an electoral policy on the ground that it’s misaligning: that it causes a divergence between popular preferences and governmental outputs. Depending on how the courts structured the doctrine, a showing of substantial misalignment might be enough to invalidate a regulation. Or, less aggressively, such a showing might shift the burden to the state, giving it an opportunity to justify the misaligning measure based on its contribution to the state’s legitimate interests. Whatever the doctrinal details, the upshot is that a new cause of action would exist, under which litigants could directly challenge electoral rules because of their misaligning effects.

As a shield, alignment (not misalignment) would be asserted by the state (not the plaintiff) in response to some other legal grievance (like a claim that a policy burdens voting or speech). The state would argue that its disputed regulation is aligning—that it shrinks the gap between popular preferences and governmental outputs—and should be upheld for that reason. Alignment would thus operate as a state interest that, if actually advanced by a measure, could save it from judicial nullification. Plainly, this is a more conventional, less disruptive role for alignment. As a shield, alignment doesn’t require the courts to create a new cause of action. It merely asks them to accept one more governmental interest (and only when it’s cited by the state).

A few points should be flagged about the judicial implementation of alignment. First, it would rely heavily on empirical evidence. If misalignment was wielded as a sword, the plaintiff would need social scientific proof that the allegedly unlawful policy, in fact, makes governmental outputs less congruent with popular preferences. Likewise, if alignment was brandished as a shield, the state would have to demonstrate that its challenged regulation genuinely has an aligning impact. Such dependence on empirical evidence is unusual in constitutional law writ large. But it’s more common in election law, where experts routinely testify about malapportionment, racial polarization in voting, the effects of voting restrictions, and a host of other quantitative issues. As one scholar has commented, “Law and social science are perhaps nowhere more mutually dependent than in the voting-rights field.”

Second, judicial recognition of alignment wouldn’t necessarily entail a great deal of judicial intervention. As my book makes clear, many electoral policies aren’t particularly misaligning—including many measures that are often thought to be misaligning. Efforts to strike down these regulations, on this basis, would therefore be unavailing. On the other hand, some electoral policies do boost alignment. These measures would generally be sustained against suits charging other kinds of legal violations. In that case, the result would again be that the courts hold their fire and democratically enacted laws remain in force.

Lastly, this discussion focuses on litigation but it mostly applies to nonjudicial policymaking, too. Outside the courts, the democratic value of alignment can be deployed both to criticize misaligning regulations (so as a sword) and to laud provisions that tighten the congruence between popular preferences and governmental outputs (so as a shield). Also outside the courts, empirical evidence is vital because it’s the only way to know whether a proposed policy change will exert an aligning or misaligning influence. Outside the courts, as well, the pursuit of alignment doesn’t threaten large swaths of the status quo: those electoral measures that either align or don’t much misalign. This close relationship between judicial and nonjudicial analysis is a theme of my book. Alignment is a theory of judicial review and regulatory design—not just a prescription for the courts.