Election Law and Election Subversion

Abstract

Scholars of American election law used to take the rule of law as a given. The legal system, while highly imperfect, appeared sturdy, steady, and functional. Recent election cycles — culminating in dramatic attempts at election subversion — have revealed this assumption beginning to break down. Without the rule of law as a dependable constant, the study of election law quickly expands. Legal experts now are simultaneously occupied with: first, the substance of election laws; second, the design of election institutions; and third, the threat of participants unlawfully undermining elections from within. This Essay identifies and contextualizes the rule-of-law pivot that is reflected in this rapidly expanding body of scholarship, including by exploring the definition of election subversion and its relationship to the rule of law. It then examines three basic prescriptive tacks that legal experts have taken in response to the threat of election subversion. These approaches can be understood as constraint-based, incentive-based, and corrective. So framed, each approach presents fundamental advantages and disadvantages for those seeking to ensure that the rule of law continues to govern elections. No single approach, in other words, provides clear and straightforward direction. This Essay concludes by offering a path forward: one that, by necessity, is multifaceted, interdisciplinary, and messy. This complexity reflects the depth of the underlying conundrum, which asks election-law scholars to consider how, if possible, to harness the rule of law to ensure the rule of law