Guy Charles, Luis Fuentes-Rohwer, and Farris Peale have posted this paper on SSRN. The abstract:
American democracy is experiencing a stress test, but the field that ought to be preoccupied with democracy seems to have little to say about it. The law of democracy has long grappled with fundamental challenges over political inequality, racial exclusion, and clientelism. For much of its history, the field of election law adjudicated these and similar issues more or less successfully. That mode of adjudication succeeded primarily because the problems of democratic politics could be addressed, for the most part, by applying the core commitments of the extant constitutional order. Significantly, American democracy relied on the Supreme Court to excavate, articulate, and implement those commitments.
In the last few years, however, the challenges to democratic politics have changed. Our politics have become more existential, and so have our constitutional disputes. As a result, in an emergent category of law and democracy cases, the parties now fight over divergent partisan conceptions of democracy. Each side contends that the other is antidemocratic and effectively asks the Court to arbitrate between their competing claims. Because these emergent challenges are about defining liberal democracy itself, they cannot be resolved by invoking the commitments of America’s liberal constitutional democracy. These new challenges question the content of the polity’s commitments, not its failure to apply them.
The familiar tools of election law were forged under different political conditions. Those tools have limited utility in our era of existential politics. Students and practitioners of the law of democracy need to develop an agenda for reforming our political systems. Election law can no longer depend upon the Court to resolve democracy’s pathologies. Courts can buy us time. But to meet the challenge of structural reform, our politics must do much more. In short, the law of democracy is now in its reconstruction era.