In advance of next week, Politico offers a thorough preview of the two election law cases on the Supreme Court’s docket this term. Both cases, it notes, are appeals from lower court decisions that threw out political maps drawn by GOP-controlled legislatures. Doctrinal nuances aside, as a practical matter, “the results of the cases could open the door to even more gerrymandering by legislators around the country, and they could also give legislatures even more power within their states to determine rules for voting — including how, when and where voters could cast their ballots.”
N.Y. Times Sidebar: The Conference of Chief Justices has filed a brief in Moore v. Harper opposing the independent state legislature doctrine. The Chief Justice of the Texas Supreme Court (accurately, in my view), told the N.Y. Times: “It’s the biggest federalism issue in a long time . . . Maybe ever.”
“The conference’s brief, which was nominally filed in support of neither party, urged the Supreme Court to reject that approach, sometimes called the independent state legislature theory. The Constitution, the brief said, “does not oust state courts from their traditional role in reviewing election laws under state constitutions.”
Over at Balkinization, I’ve been blogging (here, here, here, and here) about the benefits associated with spillovers, which occur when one state’s policies affect citizens of another state. Most of those arguments have to do with my other field, federalism. But they are relevant to two debates in election law. First, to the extent that election law scholars are interested in the role that political parties play in safeguarding vertical federalism, a topic that has inspired great articles from both Larry Kramer and Jessica Bulman-Pozen, I speculate that political parties play an equally important role in safeguarding horizontal federalism. Second, to the extent that we are all worried about polarization and the “big sort,” interstate spillovers may provide a partial antidote to polarization’s worst excesses. That’s because they force all of us to live under someone else’s law. You might think that living under someone else’s law is a terrible thing because it violates the deep-seated democratic principle of self-rule. But democracy isn’t only about self-rule; it’s also about ruling together. Given our impulse to retreat into our all-too comfortable red or blue enclaves, it’s very useful for our worlds to collide now and then. Those collisions give us a chance to see how other people live, to live under someone else’s law, to try someone else’s policy on for size. Democracy, in short, requires us to do just what spillovers require us to do: Work it out. Sometimes we work it out directly. Sometimes we need a referee. Sometimes we just take our lumps and live under a policy we don’t like. And we do so for a simple reason: We’d rather live with other people than without them.
For the last few days, I’ve been blogging about a new paper of mine on Windsor v. United States over on Balkinization (here, here, and here). I offer a new spin on it, one that invokes Ely’s Democracy and Distrust and depicts Windsor as an effort to “clear the channels of political change.” You might find the posts interesting if you want to read more about what I call the “interlocking gears or rights and structure,” which help explain the many mysteries in the opinion, the democratic purposes federalism serves, and the ways in which Windsor can be understood as an Ely-like move. Or just think of this as an invitation to join those of us writing at the intersection of federalism and election law, including Jessica Bulman-Pozen and Franita Tolson. Come on in — the water’s warm…
Those interested in the intersection between election law and federalism might want to take a look at a new Feature in the Yale Law Journal, which I blog about here. Entitled “Federalism as the New Nationalism,” it marks the emergence of a nationalist school of federalism. A lot of the work in the Feature centers on the relationship between state and national politics and thus may be of interest to election-law junkies.