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The Supreme Court and Election Law

Judging Equality from Baker v. Carr to Bush v. Gore

Richard Hasen

Publication Year: 2003

In the first comprehensive study of election law since the Supreme Court decided Bush v. Gore, Richard L. Hasen rethinks the Court’s role in regulating elections. Drawing on the case files of the Warren, Burger, and Rehnquist courts, Hasen roots the Court’s intervention in political process cases to the landmark 1962 case, Baker v. Carr. The case opened the courts to a variety of election law disputes, to the point that the courts now control and direct major aspects of the American electoral process.

The Supreme Court does have a crucial role to play in protecting a socially constructed “core” of political equality principles, contends Hasen, but it should leave contested questions of political equality to the political process itself. Under this standard, many of the Court’s most important election law cases from Baker to Bush have been wrongly decided.

Published by: NYU Press



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p. vii

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pp. ix-x

The idea for this book arose out of two events. First, Bill Marshall, who was working in the White House but planning a return to academia, called and asked if I would participate in a conference commemorating the fortieth anniversary of Baker v. Carr, the Supreme Court case opening the door to a variety of challenges to election laws in the United...

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pp. xi-xii

This book is much stronger thanks to the insightful and challenging comments of many colleagues. Bruce Cain, Beth Garrett, Heather Gerken, Tom Mann, Chris May, Rick Pildes, Bob Pushaw, Roy Schotland, and Mark Tushnet had the patience to read and comment on the entire manuscript. I also received useful comments and suggestions from Ellen ...

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pp. 1-13

Supreme Court intervention in the political process has become a regular feature of the American political landscape. To give a few examples, the Court has required the reapportionment of virtually every legislative body in the country to comply with the principle of “one person, one vote”; ended the practice of political patronage employment; prevented ...

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1. The Supreme Court of Political Equality

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pp. 14-46

In the 1970s, African-American voters made up about one-third of the Mobile, Alabama, electorate. Whites and blacks tended to prefer different candidates for each of the three city commissioners, a phenomenon voting experts have come to call “racially polarized voting.”1 Mobile conducted its elections for the city commission using an “at large” system, meaning everyone in the city voted for each commissioner. ...

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2. Judicial Unmanageability and Political Equality

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pp. 47-72

The conventional story about the Supreme Court’s decision in Baker v. Carr2 to adjudicate disputes over legislative apportionment is that political market failure required judicial intervention. The market failed in the case of unequally populated districts because existing legislators could not be expected to vote themselves out of a job; nor would voters who ...

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3. Protecting the Core of Political Equality

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pp. 73-100

Harper v. Virginia Board of Elections1 and Lubin v. Panish,2 decided just eight years apart from one another, on the surface appear to be similar cases. Harper is the poll tax case described in detail in the previous chapter. In Lubin, following the Supreme Court’s decision in Bullock v. Carter3 (a decision itself relying on Harper), the Court struck down on ...

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4. Deferring to Political Branches on Contested Equality Claims

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pp. 101-137

Voters in Missouri pass a law limiting individual campaign contributions to state officials to amounts as low as $100.1 Congress decides to suspend state-imposed literacy tests for voting in state and local elections six years after the Supreme Court holds that such tests, if fairly administered, do not violate the Equal Protection Clause of the Fourteenth Amendment.2 ...

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5. Equality, Not Structure

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pp. 138-156

The changes I have advocated in the three preceding chapters recognize that courts (and the law professors providing them with unsolicited advice!) do not have particular expertise in the design of political systems or government entities across the United States. But courts remain the government actors of last resort who must referee some high-stakes ...

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pp. 157-165

Back in March 1965, Justice Black got burned. Seeing six votes to affirm a lower court ruling upholding the power of the states to impose a poll tax in state elections (absent congressional legislation or constitutional amendment), the justice probably concluded quite reasonably that there was little risk in calling for a full hearing in Harper v. Virginia Board of Elections. ...

Appendix 1

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pp. 166-175

Appendix 2

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pp. 176-188


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pp. 189-220


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pp. 221-225

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About the Author

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p. 227

Richard L. Hasen is Professor of Law and William M. Rains Fellow at Loyola Law School, Los Angeles. He is coauthor of a textbook, Election Law: Cases and Materials, and co-edits Election Law Journal. He ...

E-ISBN-13: 9780814744536
E-ISBN-10: 0814744532
Print-ISBN-13: 9780814736593
Print-ISBN-10: 0814736599

Page Count: 239
Publication Year: 2003

OCLC Number: 57361619
MUSE Marc Record: Download for The Supreme Court and Election Law

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Subject Headings

  • Political questions and judicial power -- United States.
  • Presidents -- United States -- Election -- 2000.
  • Equality before the law -- United States.
  • Apportionment (Election law) -- United States.
  • United States. Supreme Court.
  • Election law -- United States.
  • Law -- Political aspects.
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