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Gatekeeping vs. Balancing in the Constitutional Law of Elections: Methodological Uncertainty on the High Court


Christopher S. Elmendorf


University of California, Davis - School of Law

Edward B. Foley


Ohio State University (OSU) - Michael E. Moritz College of Law

October 22, 2008

William & Mary Bill of Rights, Vol. 17, 2008
UC Davis Legal Studies Research Paper No. 154

Abstract:     
This Essay examines the methodological upheaval created by the quartet of constitutional election law cases decided during October Term 2007. Prior to this Term, the ascendant analytic approach called for a threshold characterization of the burden on the plaintiff's rights, which characterization determined whether the court would apply strict scrutiny or lax, rational-basis-like review. The characterization was generally formal in nature. But in light of the Supreme Court's latest decisions, it is now open to a lower court adjudicating a First Amendment or Equal Protection challenge to an election law - absent a Supreme Court precedent squarely on point - (1) to engage in unmediated, all-things-considered balancing, focusing either on the overall reasonableness of the challenged law or on the reasonableness of exempting or otherwise accommodating the plaintiff or plaintiff-class; (2) to apply strict scrutiny after determining that the law (relative to some practicable alternative) has a large, demonstrable adverse impact on voting, political association, or the competitiveness of campaigns; (3) to apply strict scrutiny after identifying a facial attribute of the law itself that renders it suspect in the judge's eye; (4) to apply extremely deferential review because the law does not have attributes that the judge deems facially suspect and because the judge is leery of getting bogged down in empirical debates or indulging in the guesswork of open-ended balancing; or (5) to reject the claim after positing that it raises questions about democratic fairness concerning which there is no discernable historical consensus. During October Term 2007, the Court vacillated among these approaches, while providing precious little guidance to lower courts about the circumstances that warrant one or another methodology. We suggest that the methodological pluralism in these decisions, coupled with a lack of explicit normative direction, may indicate that most Justices are approaching constitutional election law thinking less about doctrinal coherence or interpretive principle than about the instrumental consequences of their rulings for the system of government as a whole.

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Date posted: October 22, 2008 ; Last revised: November 7, 2008

Suggested Citation

Elmendorf, Christopher S. and Foley, Edward B., Gatekeeping vs. Balancing in the Constitutional Law of Elections: Methodological Uncertainty on the High Court (October 22, 2008). William & Mary Bill of Rights, Vol. 17, 2008; UC Davis Legal Studies Research Paper No. 154. Available at SSRN: http://ssrn.com/abstract=1288189

Contact Information

Christopher S. Elmendorf
University of California, Davis - School of Law ( email )
Martin Luther King, Jr. Hall
Davis, CA 95616-5201
United States
530-752-5756 (Phone)
530-753-5311 (Fax)
Edward B. Foley (Contact Author)
Ohio State University (OSU) - Michael E. Moritz College of Law ( email )
55 West 12th Avenue
Columbus, OH 43210
United States
614-292-4288 (Phone)
614-292-2035 (Fax)
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