Judging the Law of Politics

Abstract

In this Review Essay I explore the rights-structure debate that has captivated the attention of election law scholars. The Essay juxtaposes the recent work of a leading individualist Professor Richard Hasen's new book, "The Supreme Court and Election Law," against the recent work of a leading structuralist, Professor Richard Pildes' recent Foreword to the Harvard Law Review.

I argue that even though the rights-structure debate produces much heat, it does not significantly advance the goal of understanding and evaluating the role of the Court in democratic politics. I aim to return election law to a dualistic understanding of the relationship between rights and structure, an understanding that prevailed in the early articulation of structuralism's relevance to judicial review of democratic politics. I shall argue that election law cases cannot be divided into neat categories along the individual rights and structuralism divide. Election law cases raise both issues of individual and structural rights. Therefore, the label attached to election law claims is immaterial. The fundamental questions are what are the values that judicial review ought to vindicate and how best to vindicate those values. These are questions that transcend the rights-structure divide.

Keywords: election law, rights, structure, judicial review, Richard Hasen