Academic Round-Up

This week’s academic round-up will focus on a couple of forthcoming articles analyzing the Supreme Court’s recent election law cases.

Ellen Katz (University of Michigan Law School) has written an Essay entitled, “Withdrawal: The Roberts Court and the Retreat from Election Law,” for an upcoming symposium issue of the Minnesota Law Review, see here.  In this nineteen-page Essay, Professor Katz argues that the Roberts Court is seeking to avoid “active federal engagement with the state-created rules regulating democratic participation.”  This new approach is founded upon a view of the voter as “legally literate and diligent,” which Katz argues is inconsistent with reality and the Court’s prior approach to election law issues from the Warren, Burger, and Rehnquist Courts.  Katz posits that the implicit expectation of the Court is that any void presented by federal withdrawal from election oversight will be provided by individuals, political parties, and other nongovernmental organizations.

Nate Persily has posted “Fig Leaves and Tea Leaves in the Supreme Court’s Recent Election Law Decisions” on SSRN, see here.  The thesis of this Article is similar to the one posted above: Persily argues that the Roberts Court is likely to be very relaxed in its review of election laws, except for its review of campaign finance reforms.  Persily also points out that Chief Justice Roberts is the only member of the Court that joined a controlling opinion in all five election law cases from the October 2007 Term.  In addition, Nate points to some attributes of the Court’s changing election law jurisprudence: its rejection of facial challenges to election laws based on a preference for as-applied challenges and its tolerance of anti-competitive election laws that entrench parties and incumbent politicians.  Both pieces are well worth a read given the Court’s expanding election law docket.