Election Law as Ideology: Toward a New Historiography of Democracy as a Function of Law
And when I speak, I don’t speak as a Democrat, or a Republican, nor an American. I speak as a victim of America’s so-called democracy. You and I have never seen democracy; all we’ve seen is hypocrisy. —Malcolm X Footnote #1 content: Malcolm X, The Ballot or the Bullet, in THE PORTABLE SIXTIES READER 70, 79 (Ann Charters ed., 2003).
We’re not a democracy. —Sen. Mike Lee (R-Utah) Footnote #2 content: Mike Lee (@SenMikeLee), TWITTER (Oct. 7, 2020, 9:34 PM), https://twitter.com/SenMikeLee/ status/1314016169993670656 [https://perma.cc/GY8A-8TJZ].
When advocates push for legal reforms expanding voting rights or reining in the political influence of wealthy elites, they frequently allude to the need to “protect” Footnote #3 content: See, e.g., Protecting Our Democracy Act, H.R. 5314, 117th Cong. (2021); Michael Hais, Doug Ross & Morley Winograd, Protecting Democracy and Containing Autocracy, BROOKINGS (May 10, 2021), https://www.brookings.edu/blog/fxgov/2021/05/10/protecting-democracy-and-containing-autocracy/ [https://perma.cc/NCU2-XWDM]; PROTECT DEMOCRACY, https://protectdemocracy.org/ [https://perma.cc/ RM5L-YXVQ] (last visited Jan. 25, 2023). democracy or push back against its “degradation.” Footnote #4 content: See, e.g., Michael J. Klarman, The Supreme Court, 2019 Term—Foreword: The Degradation of American Democracy—and the Court, 134 HARV. L. REV. 1, 178 (2020). While these advocates often demand changes that would make the United States’ electoral system more inclusive and egalitarian, this language implies that democracy exists outside of law. This rhetoric often overlooks the ways in which undemocratic principles are baked into the very system of laws that create democratic rights for Americans in the first place. Election law in the United States presents a paradox for proponents of democracy. Law creates the legal tools necessary for exercising democratic rights and simultaneously limits those rights by excluding certain classes of people from democratic processes and protecting social and economic hierarchies in the arena of electoral politics. On the one hand, all democratic rights are necessarily creatures of law. Election law creates the very rules and mechanisms that enable people to play a role in the selection of their political representatives. Footnote #5 content: See Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2197–98 (1990). Despite the belief espoused by certain theorists and philosophers that democracy is a social arrangement that can prefigure the laws that give it shape, the opposite is actually true. Footnote #6 content: Some theorists imagine that democracy involves “a collective will already in existence, lying in wait for democratic institutions to discover.” Id. at 2197. However, “[b]efore institutions are formed, . . . no such collective will exists.” Id. at 2197–98. Only through the establishment of and adherence to legal rules can a polity possess and exercise democratic rights. Footnote #7 content: See id. at 2198. The purpose of legal rules in a democratic society is less about preserving or protecting democracy than it is about setting the terms of collective will formation: the process of creating and allocating political power according to preferences of the majority. Footnote #8 content: Collective will formation refers to the ability of a polity to make decisions about the “formation and distribution of political infuence” by reference to the choices of the majority. Jedediah Purdy, Beyond the Bosses’ Constitution: The First Amendment and Class Entrenchment, 118 COLUM. L. REV. 2161, 2163 (2018); see also id. at 2176 (“[T]he vitality of democratic equality must be oriented toward collective will formation that allows the majority to rule.”).
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