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Among the threats to American democracy, the most serious may also be the most banal: future elections will be compromised by quiet changes to the law. State legislators across the country have introduced bills that give them power to reject the will of voters. They have established sham audits and investigations. And they have created new criminal offenses that undermine professional election administration. While power-shifting legislation, audits, and criminal penalties advertise their fealty to law, they threaten the franchise and electoral integrity, as well as nonpartisan, expert election administration. Because of its ostensibly legal, even legalistic, character, however, the new election subversion complicates ordinary judicial countermand. Federal courts, in particular, have foreclosed many of their own means of responding to such measures.

This essay, written for the University of Wisconsin Law School Symposium on Interpretation in the States, describes why state courts are well situated to counter the new election subversion. Building on our prior work exploring the democracy principle in state constitutions, we explain how the text, structure, and history of states’ founding documents privilege popular sovereignty, majority rule, and political equality. After canvassing emerging threats to elections across the country, we explain how state courts might apply the democracy principle to address the new election subversion.


Constitutional Law | Law


Copyright 2022 by The Board of Regents of the University of Wisconsin System; Reprinted by permission of the Wisconsin Law Review.