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

• Author: Kate Hardiman Rhodes
• Position: J.D., Georgetown University Law Center, 2022; B.A., University of Notre Dame, 2017
• Pages: 755-778

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 holding—that 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 factor—which counsels courts to decline juris-

diction where there is a textually demonstrable commitment to a coordinate po-

litical department—is 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.

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