Institutional Process, Agenda Setting, and the Development of Election Law on the Supreme Court

Abstract

The burgeoning commentary on the two important election law cases, Randall v. Sorrell and LULAC v. Perry, decided by the Roberts Court at the end of the 2005 Term, has paid relatively little attention to the procedural posture of the cases and the institutional processes by which they were reviewed by the Court. This article explores such elements by focusing on the role of the unique procedural aspects of some election law cases, such as the use of three-judge district courts with direct appeals to the Supreme Court. These factors shed light on the Court's decision to decide the cases in the first instance, as well as on the eventual content of the decisions. The article considers several examples of these institutional processes, including the impact of the direct review provisions established by Congress in some election law cases, the use of three-judge district courts, and the effect of these institutional factors on agenda setting in the Supreme Court and the impact on decision making in the lower courts. The article concludes by situating these institutional processes in the ongoing debate over the propriety and level of the legalization of the law of democracy.

Keywords: Election Law, Federal Courts, Three-Judge District Courts, Supreme Court

JEL Classification: K40, K41, K43