The Maturing of Election Law

Abstract

If one were to choose a hot field in the academy today, election law would certainly fall near the top of the list. Election law cases such as Bush v. Gore and Citizens United v. Federal Election Commission have dominated our public discourse and transformed the shape of our country's politics to such an extent that even most educated lay people have heard of them. Twenty years ago, election law scarcely existed as a field. Today, it enjoys a rapidly growing literature and a continually expanding presence in the legal academy. This introduction to Election Law Stories (2016) charts the rise of election law as a field. It tells the story of the birth of election law, of how the field reached its adolescence and even adulthood through a number of new publications, and of how election law scholars have tried to chart a unique intellectual path by distinguishing their field from constitutional law.Born in the 1980s, when the first classes in the subject were taught by scholars such as Richard Briffault at Columbia, Daniel Lowenstein at UCLA, and Roy Schotland at Georgetown, election law moved from infancy to childhood fairly quickly. In 1995, Dan Lowenstein published the field's first casebook. Soon new scholars entering the legal academy increasingly began making election law the focus of their research. In 1998, as a result of the efforts of three such scholars, Samuel Issacharoff, Pamela Karlan, and Richard Pildes, the field’s second casebook appeared. Election law's adolescence arrived during the first ten years of the twenty-first century. By 2001, the field had its own peer-reviewed journal, the Election Law Journal. In 2004, a research institute devoted exclusively to studying election law issues, the Election Law @ Moritz program, had been launched at The Ohio State University’s Moritz College of Law, where there were soon four election law scholars on the faculty. Then, in 2010, election law began witnessing a growth spurt that few other fields could match. Over the course of the next four years, three new election law casebooks would be published. The field's third casebook, authored by Michael Dimino, Bradley Smith, and Michael Solimine, came out in 2010. A fourth casebook, by James A. Gardner and Guy-Uriel Charles, appeared in 2012. And a fifth casebook, penned by Edward B. Foley, Michael J. Pitts, and Joshua A. Douglas, was published in 2014. Meanwhile, in 2014 the Association of American Law Schools (AALS), the umbrella organization that governs law schools in the United States, also inaugurated a brand-new Section on Election Law. Beyond its major casebooks, election law for a long time did not possess any secondary sources for classroom instruction. This situation was rectified when Daniel P. Tokaji published an election law Nutshell guide in 2013, Richard L. Hasen published an election law Examples & Explanations book in 2014, and Joshua A. Douglas and Eugene D. Mazo published an Election Law Stories book in 2016. These publications marked the growth of the field as it further developed and matured into early adulthood. Today, no one can claim that election law does not constitute its own field of study within the legal academy.To bring their field to maturity, election law scholars have also done something else: they have severed the field’s ties with its parents, constitutional law and political science. In 1999, Pamela Karlan predicted that election law would be "leaving constitutional law's empire." Within a decade, that break was complete. By 2010, Heather Gerken told us, election law scholars had "declared their independence from constitutional law in a bloodless revolution." Most election law scholars do not view their discipline as a sub-field of constitutional law, in the way that First Amendment scholars or Equal Protection scholars do. Rather, they view election law as a separate discipline. It is a discipline, moreover, that has its own "canon." This essay describes the differences between election law and constitutional law and the cases that comprise election law's canon. The histories of these cases are told in Joshua Douglas and Eugene Mazo's Election Law Stories book.