Research Handbooks in Law and Economics series
Edited by Daniel A. Farber and Anne Joseph O’Connell
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 emergence of a distinct body of law, now known as the law of democracy or, more generically, 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 are given full capacity to register and...