Election Law's Lochnerian Turn

14 Pages Posted: 3 Apr 2014 Last revised: 14 May 2014

See all articles by Ellen D. Katz

Ellen D. Katz

University of Michigan Law School

Date Written: April 2, 2014


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.

Suggested Citation

Katz, Ellen, Election Law's Lochnerian Turn (April 2, 2014). Boston University Law Review, Forthcoming; U of Michigan Public Law Research Paper No. 400. Available at SSRN: https://ssrn.com/abstract=2419510

Ellen Katz (Contact Author)

University of Michigan Law School ( email )

625 South State Street
LR 960
Ann Arbor, MI 48109-1215
United States
734-647-6241 (Phone)

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