Empirical Legitimcy and Election Law

Abstract

It is commonly thought that elections help to secure the positive legitimacy of the political order, leading citizens who may vehemently disagree with the current course of public policy to accept the government’s right to rule, to comply voluntarily with duly enacted laws, and to channel their disagreements toward the next election. The Supreme Court’s constitutional election law jurisprudence seems motivated, at least in part, by a desire to ensure that American elections perform this function. As yet, however, the Court’s legitimacy-minded interventions have been predicated on judicial surmise about the relationship between election law and positive legitimacy. Recent research by political scientists has cast doubt on some of the Court’s suppositions, while also suggesting that features of the electoral process which the Court has treated as inconsequential may have significance for empirical legitimacy. It will not be long before this body of work is regularly cited in legal briefs. That will put pressure on the courts either to clarify the sense in which the exigencies of empirical legitimacy inform the substance of (and limitations upon) constitutional political rights, or else to abandon the notion that citizens’ legitimacy-related beliefs or behaviors have doctrinal relevance. In recognition of the moment at hand, I seek in this paper to clarify why a reasonable judge might want to make constitutional election law responsive to social science findings about positive legitimacy; to summarize the relevant empirical findings to date; and to outline a path forward for the courts.

Keywords: legitimacy, trust, election law, elections, voting, representation