The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore

Preface

Preface 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 States. Second, the virtually tied presidential election of 2000 led to a dramatic intervention in the political process by the United States Supreme Court in the case of Bush v. Gore. Thus, at the very time academics were turning their attention back in time to assess the role that courts should play in regulating elections and the political process, real-world events led to a court intervention in the political process beyond even the fanciful hypotheticals that law professors devise to torture students. Much of the commentary in the immediate aftermath of the Supreme Court’s decision in Bush v. Gore to halt the recount focused on that decision itself—its potential political motivations, its possible defensibility as a matter of pragmatism if not precedent, its effect on the legitimacy of the Supreme Court. But few who entered the fray in the heat of the moment reflected much on where Bush v. Gore fit into the larger picture of Supreme Court intervention in the political process since Baker v. Carr. This book is an initial effort to examine the larger picture. I consider what role the Supreme Court has played and should play in regulating political equality in the United States. My work builds upon the emergence of election law as its own field of study, apart from, yet related to, its parents , constitutional law and political science. Dan Lowenstein of UCLA, one of the pioneers in the election law field, first enticed me to think about election law as its own subject when I was a student in his seminar in 1990. Since that time, Dan and I have worked together—through a casebook, a quarterly journal, and an electronic discussion group—to ix help the field grow. At this stage, election law scholars are beginning to confront major questions of how courts should (or should not) regulate politics. An earlier version of chapter 2, “Judicial Unmanageability,” appeared as “The Benefits of ‘Judicially Unmanageable’ Standards in Election Cases Under the Equal Protection Clause,” 80 North Carolina Law Review 1469 (2002), part of the symposium on Baker v. Carr organized by Bill Marshall and Melissa Saunders of the University of North Carolina. The rest of the material in this book is new. x | Preface ...