Electoral Due Process

Hyperpartisanship has hit century-long highs in American politics and is emboldening state government attempts to undermine election outcomes by using control over state lawmaking structure to strip away authority, and sometimes outright unseat, partisan opponents after they win elected office. Even as traditional norms against such moves have eroded, the Supreme Court has taken a pro-partisanship turn in removing judicial checks against such moves under equal protection and constitutional structure. This Article proposes shifting from challenges under those doctrines to a new approach under electoral due process for confronting this new generation of antidemocracy. Federal due process law restricts the government from committing by state law to a set of rules only to change the rules after the election has been held.

On these terms, electoral due process similarly restricts the government from meaningfully stripping the authority of an elective office after the election, and from abusively expelling or impeaching the winning candidate after the election, as an antidemocratic means of undercutting the election result for partisan gain. The government commits to an allocation of government lawmaking authority dictated by the election result and must abide by that commitment, as a due process matter, even when a partisan opponent wins and assumes that authority. This Article explains the jurisprudential advantages of shifting from equal protection and constitutional structure to electoral due process as well as details the political context of hyperpartisanship and the multiplying threats to democratic elections.