"Withdrawal: The Roberts Court and the Retreat from Election Law"

Ellen Katz has posted this draft on SSRN (forthcoming, Minnesota Law Review). Here is the abstract:

A distinct approach to election law is emerging in the Roberts Court. It is an approach that seeks to avoid active federal engagement with the state-created rules regulating democratic participation; and it is one that assumes and demands an electorate that is both legally literate and diligent. This approach differs in tenor and substance from the stance the Justices have long taken in electoral disputes. It implicitly rejects the role the Court and Congress have repeatedly played in the electoral arena, and the portrait of the American voter on which federal involvement has previously been premised.

As part of this symposium on law and politics, this Article develops and defends these claims. It focuses on four decisions from last Term that upheld diverse efforts by state governments to regulate the electoral process: New York's method for nominating judicial candidates, Washington's modified blanket primary system, Indiana's voter identification requirement, and Alabama's use of gubernatorial appointment to fill county commission vacancies in Mobile. These decisions uphold regimes that make political participation contingent on characteristics many voters lack and reveal a Court that is not eager to help when voters fall short. The expectation, unstated but implicit in these decisions, is that the void will be filled by political parties, other nongovernmental organizations, and private individuals.

Posted by Rick Hasen at February 1, 2009 09:14 PM