Elections are what may be called the festival of democracy, in which it announces, celebrates, and enacts itself. Therefore, election law--the subject of this Issue--plays a central role in how democracy unfolds in this country.
The connection between elections and democracy is not quite one of identity: in a very small community, all those who count as members may participate directly in all significant decisions, and thereby have democracy without elections. (1) Conversely, as in the most notorious instance of the 1933 election that promoted Hitler to supreme and dictatorial authority in Germany, an election, though perhaps democratic in itself, may lead directly to and embody the choice of the complete abandonment of democracy. (2)
As to what democracy is, let us start with Lincoln's words, "government of the people, by the people, for the people." (3) This idea of democracy connects with, though is not quite identical with, the notion of democracy as self-government. The idea is nicely captured in the first provision of the French Declaration of the Rights of Man and of the Citizen, the authors of which were greatly influenced by the American Declaration of Independence and the Virginia Declaration of Rights (4): "Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation," (5) and later, in respect to taxation, "All the citizens have the right to decide, either personally or by their representatives, as to the necessity of the public contribution [and] to grant this freely." (6)
That "all" means all is explicit in the Declaration of Independence's proclamation as a "self-evident" "truth" that "all men are created equal." (7) In his Senate campaign against Douglas in 1858, Lincoln issued this challenge:
I adhere to the Declaration of Independence. If Judge Douglas and his friends are not willing to stand by it, let them come up and amend it. Let them make it read that all men are created equal except negroes. Let us have it decided whether the Declaration of Independence, in this blessed year of 1858, shall be thus amended. (8) It is, however, a commonplace that in a society of a certain size and complexity, the first option--direct, universal participatory democracy--is impracticable, and universal plebiscitary democracy is practicable only at special "constitutional" moments. For the rest, we are inevitably remitted to representative democracy, and elections are the occasions on which we choose those representatives. It is through these elections that we are governed by representatives, freely chosen by us all so that we are governed by ourselves--self-government. Everyone who exercises authority over us ultimately traces that authority to some act of our chosen representatives. That is why the Massachusetts Declaration of Rights in Articles 5 and 6--written in John Adams's characteristically emphatic style--states:
All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them. No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural. (9) So there you have it: the connection between self-government, democracy, and elections, and the corollary that those elections must be elections by all, equally. Having reached that conclusion, why are we not at the end...