Thumb on the Political Scale: Election Law in the Era of “Judicial Supremacy”

Over the past 20 years (since Bush v. Gore at least), voting rights have been at the heart of a major partisan battle. As of late, the “Voting Wars” described by Rick Hasen have not abated.1 The courts have been at the center of these voting wars as the appointment of conservative activist judges has been not only a goal of the GOP but the main political prize. Since the Voting Rights Act was severely weakened by the U.S. Supreme Court in 2013, Congress has been incapable of passing new legislation protecting the right to vote (such as the proposed John Lewis Amendment). With Congress in what seems to be a state of constant crisis, there is no check on the court’s ability to shape election law to favor the conservative agenda. Navigating these muddy waters has been particularly challenging for proponents of voting rights. If the American representative democracy is in crisis, one of its distinctive characteristics is the role played by the courts.