I am delighted that the Yale Law Journal has published my new Feature, The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law, 134 Yale L.J. 1673 (2025). I consider this among the most important work I’ve written. For those who may have read an earlier draft, this draft is substantially rewritten, especially Part III, which develops the pro-voter approach more deeply building on the work of Robert Dahl and international human rights law.

Here is the abstract:

This Feature describes the stagnation and retrogression of election-law doctrine, politics, and theory, explains why these trends have emerged, and explores how to transform election law in a pro-voter direction.

It begins by detailing election law’s stagnation. After a short period of strengthening voting rights, courts (and especially the Supreme Court), acting along ideological—and now partisan—lines, have pulled back on voter protections in most areas of election law. Courts have deprived other actors, including Congress, election administrators, and state courts, of the ability to protect voters’ rights more fully. Politically, pro-voter election reform has stalled in a polarized and gridlocked Congress, and the voting wars in the states mean that ease of access to the ballot depends in part on where in the United States one lives. Election-law scholarship also has stagnated, failing to generate meaningful theoretical advances about the field’s key purposes.

The Feature then considers the more recent retrogression of election-law doctrine, politics, and theory to a focus on the very basics of democracy: the requirement of fair vote counts, peaceful transitions of power, and voter access to reliable information. In the aftermath of the 2020 election, liberal and conservative judges rejected illegitimate attempts to overturn Joe Biden’s presidential-election victory. Yet courts’ ability to thwart attempted election subversion remains a question mark in light of the Supreme Court’s recent decisions in Trump v. Anderson and Trump v. United States. Congress came together at the end of 2022 to pass the Electoral Count Reform Act to deter future attempts to manipulate Electoral College rules in order to subvert election results, but future bipartisan action to prevent retrogression seems less likely. Further, because of the collapse of local journalism and the rise of cheap speech, voters are less able to obtain reliable information to make voting decisions consistent with their interests and preferences. Meanwhile, parties have become potential paths for subversion. Party-centered election-law theory, and the First Amendment marketplace-of-ideas thesis, have yet to incorporate these emerging challenges.

Finally, the Feature considers the potential to transform election-law doctrine, politics, and theory to favor voters. Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression, beginning by assuring continued free and fair elections and peaceful transitions of power. More broadly, a pro-voter approach to election law grounded in political equality engages legal doctrine, political action, and election-law scholarship to further five principles: all eligible voters should have the ability to register and vote easily in fair, periodic elections; each voter’s vote should carry equal weight; free speech, a free press, and free expression should assure voters reliable access to accurate information to enhance their capacity for reasoned voting; the winners of fair elections should be recognized and able to take office peacefully; and political power should be fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.