Aligning Election Law

Abstract This book argues that alignment between governmental outputs and popular preferences should be a tenet of the law of democracy. Alignment is a core democratic value. Yet it isn’t appreciated by election law scholarship, much of which focuses on other democratic goals. Nor do the courts consider alignment when deciding election law cases. In fact, the Roberts Court has undermined alignment at almost every turn. And in part because of these rulings, modern American politics is marred by pervasive misalignment. If alignment were recognized as a legal and political principle, it could function as a sword or as a shield. As a sword, alignment would be wielded offensively to strike down misaligning electoral practices (or not to enact them in the first place). As a shield, alignment would be deployed defensively to justify aligning electoral practices (in litigation or in public discourse). The federal courts could be a valuable ally in the struggle for alignment. Unfortunately, the Roberts Court has been a foe rather than a friend, declining to invalidate many misaligning policies and nullifying several aligning ones. Fortunately, federal litigation isn’t the only route to a more aligned political system. Congress could pass a range of potent aligning laws. So could state legislatures. State courts are also more promising venues, relative to their federal counterparts, because they adhere to a democracy principle unfamiliar to federal law. Last but not least, the people themselves could pursue alignment on their own, through either direct democracy or wholly private activity.