15 Pages Posted: 3 Jun 2010 Last revised: 28 Sep 2010
Date Written: June 3, 2010
This paper briefly reexamines the relationship between election law and constitutional law. It begins with a tongue-in-cheek history of the field's development as it moved from a faraway outpost of constitutional law to an independent field in its own right. The notion of election law's exceptionalism has by now become conventional wisdom among scholars in the field, as most agree that constitutional law cannot be applied witlessly to the domain of elections. If scholars are divided between lumpers and splitters - those who see connections across subject areas and those who think contextual differences matter most - then scholars have written about the relationship between election law and constitutional law largely in the cadence of the splitter.
This paper calls for a bit more lumping. While election law is exceptional, portions of constitutional law are exceptional as well. There may be more opportunities for intellectual arbitrage than people have typically imagined. For this reason, the paper argues that during the next stage of the field's development, election law scholars ought to have imperial aims. They should do more than declare their independence from constitutional law; they should colonize it. There are lessons to be drawn from election law, sensibilities that permeate the field that are not as prevalent elsewhere, a distinctive perspective that might help reframe conventional constitutional law debates. The remainder of the paper charts some of the ways in which we might translate election law’s insights into the domain of constitutional law.
Keywords: Election Law, Constitutional Law, Electoral Law Exceptionalism, Equal Protection, Rights, Structure
Suggested Citation: Suggested Citation
Gerken, Heather, Keynote Address: What Election Law Has to Say to Constitutional Law (June 3, 2010). Indiana Law Journal, Forthcoming; Yale Law School, Public Law Working Paper, 209. Available at SSRN: https://ssrn.com/abstract=1619882