Election Law's Lochnerian Turn
Ellen D. Katz
University of Michigan Law School
April 2, 2014
Boston University Law Review, Forthcoming
U of Michigan Public Law Research Paper No. 400
Part of a discussion on electoral “dysfunction,” this Essay suggests that the Roberts Court has come to view a good deal of contemporary electoral regulation as impermissibly redistributive. The Court, moreover, sees the type of political participation displaced by many contemporary regulations as a neutral baseline against which to gauge challenged regulations rather than itself the product of affirmative regulation. Put differently, this Essay presses the claim that the present Court confronts contemporary efforts to regulate the electoral process much like the Lochner Court approached progressive wage and hour legislation a century ago. It suggests that much of what the Roberts Court has been up to in the electoral arena may be explained by the dominant understanding of the Lochner era.
Number of Pages in PDF File: 14Accepted Paper Series
Date posted: April 3, 2014 ; Last revised: May 14, 2014
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