Restoring the Proper Role of the Courts in Election Law: Toward a Reinvigoration of the Political Question Doctrine

AuthorKate Hardiman Rhodes
PositionJ.D., Georgetown University Law Center, 2022; B.A., University of Notre Dame, 2017
Pages755-778
Restoring the Proper Role of the Courts in Election
Law: Toward a Reinvigoration of the Political
Question Doctrine
KATE HARDIMAN RHODES*
ABSTRACT
In the more than 350 lawsuits challenging election law procedures prior to
the 2020 election, federal courts rarely found that the political question doc-
trine limited their role. Yet, the doctrine continues to prompt judicial abstention
in other legal contexts, including political gerrymandering, foreign affairs,
and impeachment. This Note examines why the Equal Protection exception
announced in the canonical political question doctrine case Baker v. Carr has
swallowed the core of its holdingthat courts should decline to exercise juris-
diction over a case if any one of six factors render it a political question.The
answer is likely the intervening Anderson-Burdick doctrine, which eviscerates
the political question doctrine and the separation of powers rationales for
which it stands. This Note will posit that the political question doctrine should
be reinvigorated to restore the courts’ proper role in election law disputes over
voting procedures. Baker’s first factorwhich counsels courts to decline juris-
diction where there is a textually demonstrable commitment to a coordinate po-
litical departmentis especially pertinent insofar as the Elections Clause
assigns control over the times, places, and manners of elections to state legisla-
tures, checked by Congress. The modern textualist Court should consider apply-
ing this Baker factor, and others, to restore the proper balance between the
branches vis-à-vis election law.
TABLE OF CONTENTS
I. INTRODUCTION ATOOTHLESS POLITICAL QUESTION DOCTRINE IN
ELECTION LAW ....................................... 756
II. THE ORIGINS &EVOLUTION OF THE POLITICAL QUESTION
DOCTRINE ........................................... 758
III. INTO THE POLITICAL THICKET:THE DECLINE OF THE POLITICAL
QUESTION DOCTRINE IN ELECTION LAW..................... 760
* J.D., Georgetown University Law Center, 2022; B.A., University of Notre Dame, 2017. I thank
Lisa Blatt and Paul Clement for their helpful comments on an earlier version of this Note written for
their Separation of Powers Seminar. I am also grateful to Pete Patterson for his comments, and to my
former colleagues at Cooper & Kirk for sparking my interest in election law. © 2022, Kate Hardiman
Rhodes.
755
A. Baker v. Carr’s Creative and Destructive Potential . . . . . . . . 761
B. The Extinction of the Political Question Doctrine in Election
Law........................... ................. 762
C. The Rise (Again) of the Political Question Doctrine? . . . . . . . 766
IV. THE SPARSE APPLICATION OF THE POLITICAL QUESTION DOCTRINE
TO VOTING RIGHTS LAWSUITS BEFORE THE 2020 ELECTION...... 767
A. The Eleventh Circuit’s Application of the Political Question
Doctrine to a Ballot Ordering Statute . . . . . . . . . . . . . . . . . . 768
B. Several Lower Courts Also Attempted to Apply the Political
Question Doctrine to Claims About States’ Election
Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769
V. REINVIGORATING THE POLITICAL QUESTION DOCTRINE TO
RESTORE THE PROPER ROLE OF THE COURTS IN ELECTION LAW ... 771
A. Rucho’s Reasoning Calls Anderson-Burdick into Question . . 771
B. Baker’s Factors Should Be Revived, Especially Its First
Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774
VI. CONCLUSION ......................................... 778
I. INTRODUCTION ATOOTHLESS POLITICAL QUESTION DOCTRINE IN ELECTION LAW
In the lead-up to the contentious 2020 election, litigants filed record-shattering
numbers of voting rights lawsuits. By various counts, these lawsuits numbered
more than 350 by the time America had elected Joseph R. Biden.
1
Filings
between March and September 2020 alone were up by 82% compared to that
same time period in 2016.
2
Many of the suits explicitly stemmed from the
COVID-19 pandemic’s impact on elections.
3
And some reflected the Democratic
Party’s broader strategy of filing in key battleground states to expand the
1. See COVID-Related Election Litigation Tracker,STANFORD-MIT HEALTHY ELECTIONS PROJECT,
https://healthyelections-case-tracker.stanford.edu/ [https://perma.cc/KS97-3SQZ]. See also Voting
Rights Litigation Tracker 2020,B
RENNAN CTR.FOR JUSTICE (July 8, 2021), https://www.br ennan
center.org/our- work/court-cases /voting-rights-l itigation-tracker -2020 [https://per ma.cc/T79T-6VX3]
[hereinafter Bren nan Litigation Tracker].
2. See TRAC Reports, More Voting Rights Lawsuits Filed in 2020 Than in 2016,S
YRACUSE UNIV.
(Sept. 21, 2020), https://trac.syr.edu/tracreports/civil/625/ [https://perma.cc/HMU4-P7UG]. See also
Bianca Bruno, Voting Rights Lawsuits Explode as 2020 Election Kicks into High Gear,C
OURTHOUSE
NEWS (Sept. 21, 2020), https://www.c ourthousenews.com /voting-rights-la wsuits-explode- as-2020-
election-kicks-into-high-gear/ [https://perma.cc/6 97S-5L9U].
3. See Brennan Litigation Tracker, supra note 1.
756 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 20:755

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