The Illiberalization of American Election Law: A Study in Democratic Deconsolidation

By James A. Gardner
November 1, 2021

For many years, the dominant view among American election law scholars has been that the U.S. Supreme Court’s constitutional jurisprudence of democratic practice got off to a promising start during the mid-twentieth century but has since then slowly deteriorated into incoherence. In light of the United States’ recent turn toward populist authoritarianism, that view needs to be substantially revised. With the benefit of hindsight, it now appears that the Supreme Court has functioned, in its management of the constitutional jurisprudence of democracy, as a vector of infection—a kind of super-spreader of populist authoritarianism.

There is, sadly, nothing unusual these days about an apex court reinterpreting a formerly liberal constitutional jurisprudence to support a populist authoritarian regime. Typically, however, constitutional courts pivot toward authoritarianism suddenly, after they have been captured through aggressive court-packing or coercive threats and intimidation. In the United States, however, federal courts retain real independence, and the process of illiberalization has been correspondingly slower and less immediate. In particular, the Supreme Court has slowly illiberalized American election law in a two-stage process: first, by deconsolidating a liberal jurisprudence into incoherence and then by reconsolidating it into a form more conducive to authoritarianism. The main strategy by which this has occurred has been an increasingly aggressive deployment of an ever-narrower palette of individual rights, gradually narrowing a complex and conceptually rich jurisprudence to a single dimension—a judicial strategy that, in its radical anti-pluralism, is deeply populist, fundamentally illiberal, and profoundly destructive of the inherited liberal democratic settlement of the late twentieth century.