Election Law Originalism: The Supreme Court's Elitist Theory of Democracy

Abstract

The standard topics of election law — such as campaign finance, electoral redistricting, and voter qualification laws — are facing a deeply uncertain future in large part due to the U.S. Supreme Court’s recent decisions. To consider the larger conceptual issues at stake in these decisions, this Essay addresses two inter-related questions. First: How should we conceptualize the role of the Supreme Court as an institution in these decisions? Second: What is the underlying conception of democracy that best elucidates the Court’s major election law decisions in the last decade or so? This Essay argues that the Supreme Court’s role in recent election law decisions cannot be easily reduced to a single or consistent approach. Instead, I claim that the Court majority’s opinions, when viewed from an external perspective, display a particular vision of democracy that is fundamentally elitist in its outlook. This elitist vision of democracy stands in marked contrast to the egalitarian vision of democracy that is evident in the dissenting opinions of the four liberal justices. I suggest further that this elitist conception of democracy is a familiar one — it has certain continuities (and discontinuities) with theories of republicanism that existed at the time of the Founding. Given the echo of founding era themes, this Essay considers the role of originalism in current election law decisions. It concludes that neither the Court’s decisions, nor the emerging elitist conception of democracy, fall within originalism strictly understood. That being said, the Essay suggests that some of the Court majority’s arguments display an “originalist orientation” in which original meaning takes a preponderant weight in the analysis even if it does not compel the overall outcome. In practical terms, this originalist orientation has significant implications for future election law cases because it means that, at least for some issues, the founding era is serving as an implicit baseline for the conservative wing of the Court. The Essay identifies three ways in which the Court majority’s originalist orientation matters: first, non-originalist precedents would likely carry less precedential weight; second, election law federalism would likely be interpreted in a manner hostile to egalitarian ideals; and third, electoral reform efforts could be thwarted. In future cases, this originalist orientation will likely reinforce the elitist conception of democracy and further erode the egalitarian approach to democracy.