After the Storm: The Uses, Normative Implications, and Unintended Consequences of Voting Reform Research in Post-Bush V. Gore Equal Protection Challenges

Posted: 16 Jan 2003 Last revised: 25 Jul 2013

See all articles by Richard L. Hasen

Richard L. Hasen

University of California, Irvine School of Law

Abstract

This chapter, in a volume edited by McCaffery, Crigler, and Just, explores the legal and normative implications of social scientific voting reform research. It begins by discussing the state of election law leading up to the United States Supreme Court's December 12, 2000 opinion in Bush v. Gore, which ended the recount in Florida, and then comments on what that case did for the law. Even though Bush v. Gore ultimately may have no precedential value, it is also possible that it has created a window of opportunity for a host of legal challenges aimed at voting reforms. Social science research may well be decisive in resolving such challenges.

The next section considers the possible future and normative implications of the social science research that Bush v. Gore may have let into the election law mainstream. Social scientists studying voting have focused much of their attention on boosting turnout, but the focus raises the normative question whether high turnout is desirable. If a high turnout itself is desirable, some means for increasing turnout raise their own normative questions. Carrots, such as payments for turnout, or sticks, such as compulsory voting laws, may be objectionable, even if the goal of increasing turnout is considered a good. This section also explores some unintended consequences of proposed voting reforms. For example, social scientists are now debating and testing various means for voting in nontraditional ways, such as in cyberspace. Although such means may increase turnout, they also may facilitate voter bribery and fraud.

The final section concludes with a call for the Supreme Court to move slowly in formulating rules in response to election reform litigation. It may seem counter-intuitive, but the Court may do best or at least do the least damage by adopting initially murky equal protection standards. Such "judicially unmanageable" standards will allow lower courts to experiment with various controls over the electoral process and the Supreme Court to learn from the varied experimentation before committing to more rigid rules governing the electoral process.

Suggested Citation

Hasen, Richard L., After the Storm: The Uses, Normative Implications, and Unintended Consequences of Voting Reform Research in Post-Bush V. Gore Equal Protection Challenges. Loyola-LA Public Law Research Paper No. 2003-3. Available at SSRN: https://ssrn.com/abstract=369640

Richard L. Hasen (Contact Author)

University of California, Irvine School of Law ( email )

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HOME PAGE: http://law.uci.edu/faculty/page1_r_hasen.html

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