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

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

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

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


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.


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 . . .

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