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Issacharoff, Samuel; Miller, Laura --- "Democracy and Electoral Processes" [2010] ELECD 312; in Farber, A. Daniel; O’Connell, Joseph Anne (eds), "Research Handbook on Public Choice and Public Law" (Edward Elgar Publishing, 2010)

Book Title: Research Handbook on Public Choice and Public Law

Editor(s): Farber, A. Daniel; O’Connell, Joseph Anne

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847206749

Section: Chapter 5

Section Title: Democracy and Electoral Processes

Author(s): Issacharoff, Samuel; Miller, Laura

Number of pages: 34

Extract:

5 Democracy and electoral processes
Samuel Issacharoff 1 and Laura Miller2


Introduction
For most of American history, the right to vote was part of a contested terrain over the
inclusiveness of American politics (Keyssar 2000). Over time, the franchise expanded
to include women and, belatedly black and other minority citizens. Indeed for the 100
years between the ratification of the Fifteenth Amendment and the passage of the 1965
Voting Rights Act, the continued frustration of the franchise to black Americans was
the defining issue of voting in America. Remarkably, and imperfectly, the combination
of the Voting Rights Act and federal enforcement took most of the elementary issues of
a formal right of participation off the historical table. Although disputes remain over
the sweeping disenfranchisement of released felons and identification requirements for
casting a ballot, these are decidedly secondary and would count at best as marginal
burdens on the franchise.
So long as the critical legal issues in voting were confined to a first-order claim for
equal rights of participation, there was little pressure on legal scholarship to refine a law
of the political process independent of the standard constitutional categories of equal
protection or due process. Two developments, however, began to push toward the emer-
gence of a distinct body of law, now known as the law of democracy or, more generi-
cally, as election law. Both of these developments addressed a concept of `vote dilution,'
a difficult category of improper burdening of the franchise even where all individuals ...