The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law

abstract. This Feature describes the stagnation and retrogression of election-law doctrine, politics, and theory, explains why these trends have emerged, and explores how to transform election law in a pro-voter direction.

It begins by detailing election law’s stagnation. After a short period of strengthening voting rights, courts (and especially the Supreme Court), acting along ideological—and now partisan—lines, have pulled back on voter protections in most areas of election law. Courts have deprived other actors, including Congress, election administrators, and state courts, of the ability to protect voters’ rights more fully. Politically, pro-voter election reform has stalled in a polarized and gridlocked Congress, and the voting wars in the states mean that ease of access to the ballot depends in part on where in the United States one lives. Election-law scholarship also has stagnated, failing to generate meaningful theoretical advances about the field’s key purposes.

The Feature then considers the more recent retrogression of election-law doctrine, politics, and theory to a focus on the very basics of democracy: the requirement of fair vote counts, peaceful transitions of power, and voter access to reliable information. In the aftermath of the 2020 election, liberal and conservative judges rejected illegitimate attempts to overturn Joe Biden’s presidential-election victory. Yet courts’ ability to thwart attempted election subversion remains a question mark in light of the Supreme Court’s recent decisions in Trump v. Anderson and Trump v. United States. Congress came together at the end of 2022 to pass the Electoral Count Reform Act to deter future attempts to manipulate Electoral College rules in order to subvert election results, but future bipartisan action to prevent retrogression seems less likely. Further, because of the collapse of local journalism and the rise of cheap speech, voters are less able to obtain reliable information to make voting decisions consistent with their interests and preferences. Meanwhile, parties have become potential paths for subversion. Party-centered election-law theory, and the First Amendment marketplace-of-ideas thesis, have yet to incorporate these emerging challenges.

Finally, the Feature considers the potential to transform election-law doctrine, politics, and theory to favor voters. Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression, beginning by assuring continued free and fair elections and peaceful transitions of power. More broadly, a pro-voter approach to election law grounded in political equality engages legal doctrine, political action, and election-law scholarship to further five principles: all eligible voters should have the ability to register and vote easily in fair, periodic elections; each voter’s vote should carry equal weight; free speech, a free press, and free expression should assure voters reliable access to accurate information to enhance their capacity for reasoned voting; the winners of fair elections should be recognized and able to take office peacefully; and political power should be fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.

author. Gary T. Schwartz Endowed Chair in Law, Professor of Political Science, and Director, Safeguarding Democracy Project, UCLA School of Law. Thanks to Kevin Gerson, Caitlin Hunter, Henry Kim, and Sherry Leysen for excellent library assistance; to Richard Camarena III for terrific research assistance; and to Tabatha Abu El-Haj, Samuel Bray, Bruce Cain, Guy-Uriel Charles, Chad Dunn, Ned Foley, Heather Gerken, Jake Grumbach, RonNell Andersen Jones, David Kaye, J. Morgan Kousser, John Langford, Justin Levitt, Leah Litman, Orly Lobel, Derek Muller, Brendan Nyhan, Nate Persily, Rick Pildes, Nick Stephanopoulos, Emily Rong Zhang, participants at UCLA and University of San Diego faculty workshops, and the editors of the Yale Law Journal for very helpful comments and suggestions.

Introduction

American election law is in something of a funk.

As a matter of judicial interpretation of federal election statutes and the U.S. Constitution, election law is retreating from the protection of voters. The U.S. Supreme Court in the 1960s strongly supported voting rights.1 In more recent years, however, the Court has struck down2 or weakened3 key parts of the 1965 Voting Rights Act (VRA).4 When the Court recently issued a 5-4 opinion in Allen v. Milligan merely applying the existing interpretation of Section 2 of the VRA to redistricting,5 voting-rights advocates correctly described it as a major victory,6 even though a concurring Justice invited new constitutional litigation against the Act.7

Partisan fights about voting rules, federalism, the decentralization of election administration, and the Supreme Court’s shadow-docket practice8 can combine to harm voters. Consider the Kafkaesque litigation in Arizona just weeks before the start of early voting in the 2024 presidential election.9 Eligible Arizonans who attempted to register to vote using a federal form without providing documentary proof of citizenship were allowed to vote only for federal, but not state, offices.10 Thanks to an emergency order of the Supreme Court,11 those who used a state-prescribed form would not be registered to vote at all, despite an earlier court order that had allowed those voters to be registered in federal races.12 Only those who had provided Arizona with proof of citizenship while registering would be eligible to vote for all offices. This restriction effectively disenfranchised thousands of voters while deterring only a minimal amount of potential fraud.13 The Supreme Court sent a clear message: if you file the wrong form or lack some paperwork, then a state can take away some or all of your right to vote.

The Court’s emergency order appeared to contradict its own so-called Purcell Principle, which opposes federal court orders that change voting rules just before an election—suggesting the “Principle” applies only in ways that hurt voters.14 Three conservative Justices would have gone even further and allowed Arizona retroactively to deregister over forty thousand people who had used the state form without providing proof of citizenship.15

Rulings like this are not outliers. The Supreme Court’s election jurisprudence has stagnated, with a bias favoring states over voters. Its Anderson-Burdick framework16—for evaluating election laws that regulate ballot access, voter registration, and election administration—has emerged as an asymmetric, state-protective rule.17 The Court has prevented federal courts from policing partisan gerrymanders.18 It has also claimed the power to second-guess state-court decisions to rein in congressional gerrymandering under state constitutions and other state voting rules applicable in federal elections.19 Its campaign-finance jurisprudence has made federal limits on money in politics both toothless and a trap for unwary voters.20

The Supreme Court usually divides ideologically in its election cases, but the split is now frequently also along party lines. Republican-appointed Justices have been far less protective of voting rights than Democratic-appointed ones.21 There is reason to worry that today’s conservative and originalist majority, skeptical of earlier readings of the Equal Protection Clause of the Fourteenth Amendment, could weaken or overturn key voter-protective precedents of the liberal Warren Court.22

Political action protecting voters also has stagnated. In the 1960s and 1970s, Congress broadly expanded voting rights through a series of constitutional amendments and statutes, most importantly the 1965 VRA. Today’s hyperpolarized Congress usually divides along party lines on election matters and rarely passes consequential
legislation.23 While voting is generally seamless for many Americans, the ease of access to the ballot varies for citizens across different states. Meanwhile, effective national majority rule is stifled not just by the supermajority filibuster rule but by the composition of the U.S. Senate, which awards each state equal representation in the key national legislative body, leading to overrepresentation of sparsely populated
states.24

The theoretical debates in election law have stagnated as well. The field started with a focus on representation reinforcement and professed fidelity to the famous footnote four of Carolene Products.25 This approach tasked courts with policing the political process because legislative self-interest would leave the system stuck.26 From this insight emerged the rights/structure debate of the early 2000s, which considered whether the role of courts in election cases is to assure adequate political competition or to protect individual and group rights.27 That debate appears to have been resolved, more or less, by the work of Professor Guy-Uriel Charles, who showed there was less a divide than a question of emphasis.28 The Supreme Court has essentially rejected the call to interpret election laws with a focus on political competition.29 Today, there is scant academic debate over the broad purposes of election law.

Recently, bipartisan action on U.S. democracy, both in Congress and in the courts, has aimed to assure the minimum conditions for a functioning democracy, showing how far the bar has been lowered. Since 2020, the work to limit this newly emerging retrogression has focused on thwarting election subversion.30 In the aftermath of the 2020 election, courts on a bipartisan basis rejected attempts to overturn Joe Biden’s victory over Donald J. Trump on spurious grounds of fraud or election
“irregularities.”31 The Supreme Court also rejected the most extreme version of the “independent state legislature” theory, which might have allowed state legislatures to ignore the voters when casting each state’s Electoral College votes.32

Yet the courts’ ability to quash attempted election subversion remains an open question. In Trump v. Anderson, the Supreme Courtbarred states from disqualifying Trump or other federal candidates under Section 3 of the Fourteenth Amendment for participation in or support of an insurrection.33 In Trump v. United States,34 the immunity case, the Court made it much harder for the government to prosecute President Trump for his role in seeking to overturn the results of the 2020 election. The Court seemed far less concerned about the current risks to U.S. democracy than the hypothetical risk that a future President could be deterred from acting boldly out of fear of a bogus political prosecution after leaving office.

In 2022, Congress passed the Electoral Count Reform Act (ECRA)35 to deter future attempts to subvert election results by manipulating Electoral College rules.36 The ECRA’s passage was possible only because Democrats controlled the House of Representatives and enough moderate Republicans remained in the Senate.37 With unified Republican control of Congress and Trump having returned to the White House in 2025, further bipartisan legislation to counter retrogression appears unlikely.

During this new period of retrogression, voters face fresh challenges. It has become more difficult to obtain reliable information to make voting decisions consistent with one’s interests and preferences. The collapse of local journalism and the rise of cheap speech spread over social media and other channels have upset the market in political information, threatening voter competence.38 Meanwhile, some voters are losing the power to govern themselves through initiatives, as some Republican legislatures tighten rules for qualifying or passing voter initiatives and take steps to counteract the effects of some that have passed.39

Election-law scholarship is still catching up to the changing American political and informational environment. For example, it remains orthodoxy within the election-law scholarly community that election law should be structured to enhance the role of the major political parties to fight factionalism and counter polarization.40 But President Trump’s effective takeover of the Republican Party illustrates the difficulty of using party-centric reforms, such as proposals to channel public campaign financing through the parties, to combat extremism and threats to democracy.41 These days, parties can become the pathways for democratic backsliding rather than bulwarks against it. This period of retrogression also coincides with significant technological change that has upset the dominant marketplace-of-ideas theory of the First Amendment, which rests on the premise that truth will eventually prevail over falsehood through public debate.42 The collapse of this paradigm has yet to penetrate fully First Amendment election-law scholarship.

Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression. A transformational theory of election law must begin by recognizing threats to peaceful transitions of power and the fair administration of elections from conditions of high polarization across political branches, the judiciary, and election administration; the rise of antidemocratic populism and fragmented government; and the rapidly changing information environment that frustrates voters’ ability to distinguish true and false statements, sounds, and images.

Transformed election law, however, must go beyond the focus on retrogression to be more ambitiously and unambiguously pro-voter. This pro-voter approach is grounded in political equality as reflected in democratic theory and international human-rights norms. It engages legal doctrine, political action, and election-law scholarship to further five principles: (1) all eligible voters should have the ability to register and vote easily in fair, periodic elections; (2) each voter’s vote should carry equal weight; (3) free speech, a free press, and free expression should assure voters reliable access to accurate information to enhance their capacity for reasoned voting; (4) the winners of fair elections should be recognized and able to take office peacefully; and (5) political power should be fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and
representation.43 These principles might seem self-evident and this focus unnecessary, given the ease of voting for many Americans. But that view ignores the uneven nature of voting rights across states, the risk that courts will pull back further on protecting voting rights for all Americans, and new threats of retrogression.

Pro-voter election-law theory must build upon scholarship not only to reverse democratic backsliding, but also to chart a path toward a fairer, multiracial democracy. It is as much about political change as legal change. It must harness the power of federalism to help voters while recognizing the key role of federal courts in assuring fair vote counts. It must design the best ways to promote equal voting rights and deal with antimajoritarian features of the American political system at a time of prolonged hyperpolarization and dramatic technological change. It must consider whether parties or other new forms of political organization can effectively facilitate collective action, promote democratic self-government,44 and guard against extremism in this new era.

Part I describes election law’s stagnation. Part II considers retrogression. Part III explores the potential transformation of election-law doctrine, politics, and theory to the pro-voter approach.