“A Voice in the Wilderness: John Paul Stevens, Election Law, and a Theory of Impartial Governance”

Cody Barnett and Josh Douglas have written this draft (forthcoming, William and Mary Law Review). Here is the abstract:

Justice John Paul Stevens turns 98 years old in April 2018. How should we remember his legacy on the Supreme Court? This Article places his legacy within his election law jurisprudence. Specifically, Justice Stevens provided a consistent theory, which we term “impartial governance,” that has had a lasting impact on the field. This theory undergirds Justice Stevens’s creation of the important Anderson-Burdick-Crawford balancing test that all federal courts now use to construe the constitutionality of laws that impact the right to vote, such as voter ID laws. It is part of his important opinions on redistricting, which are now gaining steam in the current debate over partisan gerrymandering. It animates his opinions on campaign finance law. And it explains his dissent in Bush v. Gore, arguably the most controversial case to reach the Court. Impartial governance surely stems from Justice Stevens’s own personal history, where he witnessed his father deal with the criminal justice system, clerked for liberal Justice Wiley Rutledge, and served as a moderate Republican battling corrupt Chicago political machines. This Article recounts that history and highlights how it impacted his election law jurisprudence, with an Appendix summarizing each of Justice Stevens’s sixty-seven election law opinions. As we reflect on his life and career, these insights into Justice Stevens’s impartial governance theory of election law will help scholars, the media, and the public understand his enduring legacy.


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