Lost in the Political Thicket: The Court, Election Law, and the Doctrinal Interregnum

Abstract:     
During the last year and a half, the Supreme Court has issued three important election law decisions in each of election law's main fiefdoms: race and redistricting, campaign finance, and the regulation of political parties. What has been missing from the commentary thus far has been an effort to connect the dots. This essay claims that these three, seemingly disparate decisions can be understood as part of a story that began more than four decades ago, when the Court first entered the political thicket. The Court has long tried to use a conventional individual rights framework - the bread-and-butter of legal analysis - to adjudicate what are often claims about the structure of the political process. An individual-rights framework, however, does not provide adequate analytic tools for resolving such challenges, as the Court's most recent opinions reveal. As a result, the Court as a whole seems to be in a doctrinal holding pattern, unsure of where to go next.

This essay thus argues that we are witnessing a doctrinal interregnum in election law. It charts the course the Court has taken thus far, exploring the connections between the Court's three most recent election law decisions and its prior jurisprudence. It argues that, despite their many differences, each case reveals the dilemma the Court now faces in resolving what are fundamentally structural claims with an individual-rights framework. Part II speculates on the next steps the Court will take. In doing so, it attempts to sharpen the terminology deployed in the "rights-structure" debate thus far and suggests a novel reading of Georgia v. Ashcroft, the Supreme Court's most recent race and redistricting case, as a bridge between the Court's prior strategy for adjudicating vote-dilution claims - policing substantive outcomes - and a more process-oriented approach that deploys a variant of the minority veto. The essay closes by reflecting on how courts might use their regulatory powers to create incentives for other institutional actors to work to improve the structural health of our democracy.

Working Paper Series