Michael Kang (Northwestern) has posted this draft on SSRN (forthcoming, Northwestern University Law Review). Here is the abstract:

Hyperpartisanship has hit century-long highs in American politics and is emboldening state government attempts to undermine election outcomes by using control over state lawmaking structure to strip away authority, and sometimes outright unseat, partisan opponents after they win elected office.  And even as traditional norms against such moves have eroded, the Supreme Court itself has taken a pro-partisanship turn in removing judicial checks against such moves under equal protection and constitutional structure.  The Article proposes shifting from challenges under those doctrines to a new approach under electoral due process for confronting this new generation of anti-democracy.  Federal due process law restricts the government from changing the legal rules of an election after the election is held and underscore the constitutional understanding that the government cannot commit by state law to a set of rules only to change the rules after the election has been held. On these terms, electoral due process similarly restricts the government from meaningfully stripping the authority of an elective office only after the election, and from expelling or impeaching the winning candidate after the election, as an anti-democratic means of changing the legal consequences of the election after a partisan opponent has won.  The government commits to an allocation of government lawmaking authority dictated by the election result and must abide by that commitment, as a due process matter, even when a partisan opponent wins and assumes that authority.  The Article explains the jurisprudential advantages of shifting from equal protection and constitutional structure to electoral due process as well as details the political context of hyperpartisanship and the multiplying threats to democratic elections.