Elections, Courts, and Democratic Crisis: Constitutional Structure and the 2020 Election

This Article analyzes how the U.S. constitutional order responds to democratic crisis by examining Supreme Court cases dealing with the effort to overturn the 2020 election, and the response to the January 6th Capitol attack. It analyzes the Court’s approaches to constitutional structure in key cases and how these approaches impact constitutional capacity to address democratic crises. The Article discusses how the effort to overturn the 2020 election sought to exploit key weaknesses in the U.S. constitutional framework. It then examines how the Supreme Court adjudicated cases related to the effort to overturn the 2020 election, including Moore v. Harper, Trump v. Anderson, and Trump v. United States.

Each of these cases reflected distinct models of constitutional structure and modalities of constitutional interpretation. I argue that the application of constitutional structure-based approaches in these cases pose key challenges for the constitutional order’s ability to respond to democratic crises. The Article traces how the Court utilized structure-based approaches that weaken our capacity to respond to democratic disaster. It critiques these approaches and suggests applying a limited conception of the basic structure doctrine in comparative constitutional law in these cases.

Basic structure doctrine conceptions can provide support for state and federal court enforcement of the disqualification provision in Section Three of the Fourteenth Amendment, and a more limited conception of executive immunity. This approach would go beyond constitutional structure and the allocation of power, to consider the threats posed to core elements and features of U.S. constitutional and electoral governance.