The Appearance of Election Law

The Supreme Court decided 402 election law cases during the twentieth century. That statistic, and lots of other helpful information, is gleaned from the excellent summary of election law written by Rick Hasen. Professor Hasen is the nation’s most prolific election law scholar: co-author of an election law casebook, host of the leading election law web site, and author of numerous law review articles discussing various aspects of election law. The Supreme Court and Election Law represents Professor Hasen’s attempt to distill nearly four decades of Supreme Court decisions and academic scholarship regarding election law and to articulate a theory of how and when the Court should apply the Constitution to election law disputes. The book, like all of Professor Hasen’s work, is exhaustively researched, clearly written, and animated by a powerful normative view of the proper operation of election law. But is there such a thing as “election law”? That term was relatively uncommon until the presidential election of 2000, with general considerations of legislation or “the law of democracy” favored in law schools and few attorneys engaged in the practice of “election law.” Now, thanks in no small part to Professor Hasen, we describe questions of reapportionment, voting rights, campaign finance, and the counting of votes as belonging to the same category of election law. That category could also include the standards for determining whether to order a new election or instead to prescribe some other relief for a contested election, the role of Congress as the judge of the elections of its members, the use of popular initiatives to enact laws governing the electoral process, and the appropriate structure for the rules of how, where, and when to vote. Professor Hasen’s book addresses “an important subset” of election law cases, “those that regulate political equality.” The litigation concerning these issues raises several distinct kinds of issues, including the meaning of the Fourteenth Amendment’s Equal Protection Clause, the scope of the First Amendment’s protection of the freedom of speech, federalism, separation of powers, and statutory interpretation generally. Even within that subset, though, the search for a unifying principle continues to confound judges and