Election Law and Democratic Theory

David Schultz

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317145295
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

While numerous books and articles examine various aspects either of democratic theory or of specific topics in election law, there is no comprehensive book that provides a detailed and scholarly discussion of the political and democratic theory underpinnings of election law. Election Law and Democratic Theory fills this important gap, as author David Schultz offers a scholarly analysis of the political principles and democratic values underlying election law and the regulation of political campaigns and participants in the United States. The book provides the first full-length examination of the political theories that form the basis for many of the current debates in election law that structure both Supreme Court and scholarly considerations of topics ranging from campaign finance reform, voting rights, reapportionment, and ballot access to the rights of political parties, the media, and other players in the system. It challenges much of the current debate in election law and argues for more discussion and development of a democratic political theory to support and guide election law jurisprudence.

Acknowledgments

Alfred North Whitehead once declared all of philosophy is a series of footnotes to Plato. In stating that, he pointed to the indebtedness that scholars have to others and to the fact that no book or article is truly original or produced in isolation. The same is the case with this book. In so many ways, Democratic Theory and Election Law is a product forged by many experiences. It is of course an outgrowth of teaching election law at Hamline University, the University of Minnesota, and the American University at Armenia for nearly 15 years. It is also a product of nearly 25 years of teaching in the United States and abroad, as well as talking to thousands of reporters, citizens, colleagues, and students. In so many ways, the ideas here on democracy have been tossed around since my days as an undergraduate student and they have been refined and retooled over the years. It is impossible to recount or remember everyone whom I have intellectually profited from, but I am clearly indebted to many and thank them for encouraging my interest in election law.

Throughout a career thinking about democracy and the law I have immensely benefitted from conversations with and from the scholarship of so many others. In particular, two individuals stand out. The first is Dan Lowenstein—really the inventor of the field of election law—and John Shockley, a colleague of mine at Gustavus Adolphus College when I first started teaching. Dan and I first met in the early 1990s when I was writing about Justice Scalia. Our paths crossed because of our mutual interests in law and politics and he was so kind as to send me a crate of handouts and materials that would eventually form the basis of the first edition of his Election Law casebook. John and I wrote what was to be my first article on election law. My experiences with both stimulated an interest in election law that has continued to this day. To a significant extent, this book builds upon past scholarship and development of ideas that owe their origins to my association with Dan and John.

This book hopefully represents a deepening of ideas previously articulated in writing. Specifically, Chapter 3 is adapted in part from “Is Voter Fraud Like Littering?: Empirical and Methodological Considerations,” American Review of Politics, 231 (Fall 2012) and “Less than Fundamental: The Myth of Voter Fraud and the Coming of the Second Great Disenfranchisement,” 34 William Mitchell Law Review 484 (2008).

Chapter 5 is adapted in part from “Regulating the Political Thicket: Congress, the Courts, and State Reapportionment Commissions,” 3 Charleston Law Review 109 (2008) and “The Party’s Over: Partisan Gerrymandering and the First Amendment,” 36 Capital Law Review 1 (2007).

Chapter 7 is adapted in part from “Buckley v. Valeo, Randall v. Sorrell, and the Future of Campaign Financing on the Roberts Court,” 12 Nexus 153 (2007), “Disclosure is not Enough: Empirical Lessons from State Experiences,” 4 Election Law Journal 349 (2005), and “Revisiting Buckley v. Valeo: Eviscerating the Line Between Candidate Contributions and Independent Expenditures,” 14 Journal of Law & Politics 33 (1998).

Finally, thanks go to Helene who has heard me talk about these ideas way too much. She is always there to support me.

Chapter 1
Theory: The Missing Piece in Election Law Scholarship and Adjudication

DOI: 10.4324/9781315579016-2

The most curious feature about election law scholarship and adjudication is the degree to which it is theoretically rudderless. What is meant by rudderless? Simply put, it is the extent to which the critical debates and issues that are at the center of many election law disputes are often addressed in the most minimal of matter, generally without regard to any broader sense of a political theory which should guide decisions. In reaching decisions addressing political speech versus promoting the integrity of elections in the area of campaign financing, or ballot access versus electoral integrity, voting rights versus fraud prevention, or any other innumerable issues, election law scholars and judges seem to assume that the matters at stake are devoid from a broader political or democratic theory context. They essentially ignore how embedded election law actually is to politics and normative values about government.

But that should not be the case. Alexis de Tocqueville declared in a famous and often quoted passage in his Democracy in America: “There is hardly a political question in the United States which does not sooner or later turn into a judicial one. Consequently the language of everyday party-political controversy has to be borrowed from legal phraseology and conceptions.” ¹ How prescient. What de Tocqueville saw 170 years ago in America was the connection between politics and the law. He recognized that the critical political or policy issues of the day—then perhaps slavery—would soon turn into matter for the courts to decide, such as in Dred Scott v. Sanford. ² The line between politics and law is always fine, with some controversial decisions demonstrating how eroded or absent it often is. When some accused the Supreme Court of deciding the outcome of the 2000 presidential election in Bush v. Gore one can almost hear the French writer saying “I told you so.” ³ Contrary to Justice Frankfurter’s admonition in Colegrove v. Green that “Courts ought not to enter this political thicket” when it comes to redistricting and reapportionment, ⁴ there was an inevitability to doing so (as later permitted by Baker v. Carr) for the reasons suggested by de Tocqueville.

It would be easy to argue that criticizing the Supreme Court and election law scholars for not discussing political theory is a cheap shot that is off the mark. After all, judges are generally not political theorists and election law scholars are lawyers and not philosophers. Paraphrasing Justice Robert Jackson, who once declared in Brown v. Allen “We are not final because we are infallible, but we are infallible only because we are final,” ⁵ the Supreme Court is not the final word on election law because they are theorists, they are theorists only to the extent they are final. But while the judiciary generally gets the final word in resolving election law issues, that does not mean that their answers are theoretically rich or that they have even really crafted decisions that are satisfactory.

Consider a parallel problem briefly noted in the introduction—the problem of judicial review. Judicial review may well be a necessary but contentious power within a democratic society such as the United States. The controversy begins in America with simply a textual issue—does the Constitution provide support for such a power. Alexander Hamilton in Federalist 78 hinted at the power of judicial review for the proposed new Supreme Court in the new constitution.

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course; to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. ⁶

Yet, despite this power, Hamilton also sought to comfort those who feared the new court:

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. ⁷

Even though later, in Marbury v. Madison, Chief Justice John Marshall pronounced: “It is emphatically the province and duty of the judicial department to say what the law is,” ⁸ President Andrew Jackson may have captured the spirit of Hamilton’s caution when he supposedly stated about one Supreme Court decision: “John Marshall has made his decision; now let him enforce it!” ⁹ The problem of judicial review then is one of textual support for the power and of balancing it with the authority of the other branches of government.

But at a second level the problem of judicial review is one of popular government. In Federalist 10 Madison sums up the central problem of government:

When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. ¹⁰

For Madison, the problem is of checking majority faction while preserving liberty and popular government. Later the problem was restated by de Tocqueville as the problem of the tyranny of the majority, ¹¹ or even later by James Bryce as the fatalism of the multitude. ¹²

The simplest way of describing it is as balancing majority rule with minority rights. How far can a majority go in securing its will before it infringes on minority rights? A constitutional democracy is not a winner-take-all game, that is the purpose of the Bill of Rights. Again quoting Justice Jackson:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to … freedom of worship … and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. ¹³

Balancing majority rule and minority rights is essentially the same problem with judicial review, only it is expressed in a different way. Alexander Bickel once wrote of judicial review facing the problem of countermajoritarianism. ¹⁴ By that, writing in the wake of Brown v. Board of Education, ¹⁵ the issue was how to reconcile the power of the courts effectively to resolve contentious social and policy issues within the framework of a representative democracy that says that elected officials should be given the duty to do this. Should unelected, tenured for life judges be making decisions about integration, contraception, and abortion? What about issues of gay marriage, or about how much money can be spent in politics or who can give, appear on a ballot, or vote in an election? What is the line between appropriate authority of the courts versus Congress, the president, and the states? At what point can the courts thwart the will of the majority? This is the problem that Bickel raised, and over the last 60 or so years, has been revisited numerous times by critics of the Supreme Court as they assail it for legislating from the bench or judicia...

Table of contents

• Cover Page
• Table Of Contents
• Election Law and Democratic Theory
• Acknowledgments
• Index
• Table of Cases