Election Law Exceptionalism? A Bird’s Eye View of the Symposium

Abstract

The contributions to this symposium, sponsored by the Association of American Law Schools ("AALS") Section on Federal Courts, offer interesting and cogent analyses of three very different questions arising from the Supreme Court's jurisprudence. Louise Weinberg adds to the growing body of literature devoted to Bush v. Gore by proposing a new reason to question the decision the Court's short-circuiting of the democratic process, which Weinberg argues implicates a special set of constitutional concerns. Pamela Karlan examines the difficulties the Supreme Court has encountered in implementing the Shaw doctrine, which prohibits racial gerrymanders, and sketches out potential exit strategies for the Court to remove itself from this thorny part of the political thicket. And Avi Soifer offers a general critique of the Supreme Court's recent jurisprudence, with an eye to showing that Bush v. Gore is little different from the other Supreme Court decisions handed down this Term. One theme unites these diverse contributions to the scholarly literature. Each piece directly or indirectly raises the question of election law exceptionalism -that is, whether constitutional law should be applied wholesale to democracy cases, or whether election law should be understood as a special area of the law requiring its own, unique set of legal paradigms. Here I briefly address how this question relates to the papers in this symposium.