Professor John Hart Ely died last week (his New York Times obituary is here). Ely was one of the most important constitutional scholars of his generation, known especially for his 1980 book, “Democracy and Distrust.”
His book had a profound effect on the development of election law. In the book Ely argued that “unblocking stoppages in the democratic process is what judicial review ought preeminently to be about.” Though the roots of the argument trace back at least to the famous footnote 4 in the Carolene Products case, Ely offered the most sustained defense of cases such as Reynolds v. Sims, arguing that judicial intervention in apportionment matters was necessary because the political process was stuck. Ely’s process theory, it is safe to say even today, is election law orthodoxy. Indeed, one can trace to Ely the currently fashionable structural “lockup” or “political markets” approach to election law cases put forward most forcefully by Sam Issacharoff and Rick Pildes.
I ultimately believe that Ely’s process theory for judicial review—and the later structural theories—are inadequate theories of judicial review in election law cases. Ely’s process theory fails for three reasons: First, the theory has not been successful in limiting judicial power: courts have not confined themselves to intervening in election law cases only in the face of political market failure. Bush v. Gore is the most recent example of this phenomenon. The second problem with process theory is that it masquerades as a purely procedural rather than a substantive basis for review of political cases. The third problem with process theory is that, despite its implicit substantive dimension, it is a shallow theory. It says nothing about how the courts should intervene in the face of political market failure.
You can read more of these three critiques in the introduction to my book (beginning at page 4), available free online here. Chapter 5 of my book, “Equality, Not Structure,” challenges the political markets approach (the chapter is not available on line).
The fact that Ely’s work is still being debated today as strongly as it was when his book first came out in 1980 is testament to the power of his ideas, and the simple elegance of his writing. His contributions to constitutional law (and election law) will be missed, even by those who did not always agree with him.