Election Law – Page 7 – Marquette University Law School Faculty Blog

Democracy’s Self-Perpetuating Illusion

Post author:Bruce E. Boyden
Post published:July 9, 2021
Post category:Constitutional Interpretation Election Law Judges & Judicial Process

Can legal formalism help save democracy? That is a question posed by a very interesting draft paper posted by Will Baude of the University of Chicago last week, “The Real Enemies of Democracy.” Baude’s paper is a response to Pam Karlan’s 2020 Jorde Symposium lecture, “The New Countermajoritarian Difficulty,” in which Karlan laments the recent Supreme Court’s failure to take action against anti-majoritarian forces that dilute the votes of, or outright disenfranchise, millions: the Electoral College, the filibuster, campaign finance, gerrymandering, and anti-suffrage laws.

But Baude has his eyes set on a different horizon: “I worry that democracy faces far worse enemies than the Senate, the Electoral College, or the Supreme Court. Those enemies are the ones who resist the peaceful transfer of power, or subvert the hard-wired law of succession in office.” And he suggests a different bulwark to hold them back: “The shield against them may be more formalism, not less.”

I agree with Baude’s sense of the threats, but I think the hope that formalism—or even the rule of law generally—will save us is misplaced. It was often said of the Soviet Union that it had an extremely rights-protective constitution; better than that of the United States, even. But of course the problem was that the Communist Party was not really bound by it. Formal guarantees mean nothing without the will to back them up. Law without faith is dead.

Want Politicians to Prioritize the Greater Good over Partisanship? Change Election Rules, Speakers Say

Post author:Alan J. Borsuk
Post published:April 12, 2021
Post category:Election Law Public Speakers at Marquette

You want to do something about the partisan polarization that puts the United States Congress into frequent gridlock? Katherine Gehl and Austin Ramirez say there is a solution that has nothing to do with any specific policy or how people define themselves when it comes to partisanship: Change the way Congress members are elected.

“It turns out what really matters is the system, the rules of the game,” Gehl said during an “On the Issues with Mike Gousha” program posted on the Marquette Law School web site on April 8, 2021. The game she referred to is the way politicians get re-elected. Single-party primary elections motivate them to take highly partisan positions that play to small, but decisive blocks of voters within their party.

“Currently the system pushes – forces — the sides apart,” Gehl said. What’s best in the big picture doesn’t count the way that it counts to do what’s best for winning a party primary or keeping others from launching primary challenges.

“Our task is to make keeping the job the same as getting results for the country,” she told Gousha, Marquette Law School’s distinguished fellow in law and public policy.

Election Reform Efforts Are Needed in Wisconsin, GOP Party Chair Says

Post author:Alan J. Borsuk
Post published:February 9, 2021
Post category:Election Law Political Processes & Rhetoric Public Speakers at Marquette

The 2020 election is over, but the need for election reform continues, the chairman of the Wisconsin Republican Party, Andrew Hitt, said during an “On the Issues with Mike Gousha” program posted on Marquette Law School’s web site on Feb. 9, 2021.

So expect legislative action on that front and, given the likelihood of vetoes by Democratic Gov. Tony Evers, new lawsuits and efforts to get the Wisconsin Election Commission to take more action regarding election rules, Hitt said.

But, Reid Ribble, who represented an area including Green Bay as a Republican member of the US House of Representatives from 2011 to 2017, took a different approach to the subject, suggesting it would be “a huge confidence boost for everyone” if legislators and the governor came together on a bipartisan plan for election integrity.