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\"The 2000 presidential election, with its problems in Florida, was not the first major vote-counting controversy in the nation's history--nor the last. Ballot Battles traces the evolution of America's experience with these disputes, from 1776 to now, explaining why they have proved persistently troublesome and offering an institutional solution\"-- Provided by publisher.

American democracy is plagued by excessive partisanship, and yet constitutional law thus far has been incapable of redressing this ill. Gerrymandering is one clear example: the partisan distortion of legislative districts has accelerated dramatically in the last several decades, yet the federal judiciary has been unable to develop a constitutional standard for curbing this egregiously antidemocratic behavior. Likewise, state legislatures around the country in the last decade have been enacting statutes to cut back on voting opportunities, and federal courts have struggled with articulating appropriate standards for evaluating the constitutionality of these rollback laws. A main reason for this struggle has been the judicial unwillingness to tackle directly the transparently partisan motives underlying these legislative cut backs in voting opportunities. This judicial difficulty with curtailing excessive partisanship stems from an attempt to rely on equal protection as the relevant constitutional standard for judicial review of election laws. Invocation of equal protection is understandable given the initial success of Warren Court precedents, like Reynolds v Sims and Harper v Virginia Board of Elections, in using equal protection to protect equal voting rights. But as the courts have subsequently discovered, equal protection is ill-suited to the problems of gerrymandering or legislation that cuts back on voting opportunities for all voters. This Article offers a previously undeveloped alternative to equal protection: due process. In a wide range of areas, including civil and criminal procedure, the Supreme Court has long recognized that due process encompasses a principle of fair play. This fair play principle, well understood to apply in society to athletic competition, is suitable in the domain of politics for constraining excessive partisanship in electoral competition. In fact, the history of the Fourteenth Amendment's ratification reveals that this fair play principle played an essential role in constraining excessive partisanship that threatened to destabilize the Republic at the time the amendment's ratification was under consideration in Congress. Once the significance of this history is recognized, the Fourteenth Amendment's Due Process Clause is properly construed as constraining the partisan overreaching that currently threatens to undermine American democracy. In this way, the federal judiciary appropriately can invoke due process to directly redress excessive partisanship in the form of gerrymandering or rollbacks in voting opportunities.

Perhaps the truest test of a nation's ability govern itself democratically is its ability to count ballots fairly and accurately in competitive, high-stakes elections. Yet from the founding on, America's adherence to this ideal has been distinctly uneven. Edward Foley's Ballot Battles is a sweeping synthesis of the subject, tracing how election controversies evolved over time, from the 1780s to the present.

On Tuesday, December 12, 2000-exactly five weeks after that year's Election Day-the U.S. Supreme Court issued its decision in Bush v. Gore, transforming election law and ushering in two decades of intense litigation over the voting process that shows no signs of abating. [...]the high court took on the case, to keep the state judiciary in line. [...]odd Bush v. Gore might have been as an example of federal Supreme Court supervision of state court litigation, its \"equal protection\" holding was an immediate indication of how the federal Constitution could be used to control the operation of a state's electoral processes. In a welcome exercise of unanimity, however, the Supreme Court vacated the lower court ruling on the ground that it was manifestly inconsistent with recent jurisprudence concerning the availability of private rights of action to remedy or address violations of federal statutes, as the Ohio secretary of state was alleged to have done.

This Essay examines the methodological upheaval created by the quartet of constitutional election law cases decided during October Term 2007. Prior to this Term, the ascendant analytic approach called for a threshold characterization of the burden on the plaintiff's rights, which characterization determined whether the court would apply strict scrutiny or lax, rational-basis-like review. The characterization was generally formal in nature. But in light of the Supreme Court's latest decisions, it is now open to a lower court adjudicating a First Amendment or Equal Protection challenge to an election law-absent a Supreme Court precedent squarely on point-(1) to engage in unmediated, all-things-considered balancing, focusing either on the overall reasonableness of the challenged law or on the reasonableness of exempting or otherwise accommodating the plaintiff or plaintiff-class; (2) to apply strict scrutiny after determining that the law (relative to some practicable alternative) has a large, demonstrable adverse impact on voting, political association, or the competitiveness of campaigns; (3) to apply strict scrutiny after identifying a facial attribute of the law itself that renders it suspect in the judge's eye; (4) to apply extremely deferential review because the law does not have attributes that the judge deems facially suspect and because the judge is leery of getting bogged down in empirical debates or indulging in the guess work of open-ended balancing; or (5) to reject the claim after positing that it raises questions about democratic fairness concerning which there is no discernable historical consensus. During October Term 2007, the Court vacillated among these approaches, while providing precious little guidance to lower courts about the circumstances that warrant one or another methodology. We suggest that the methodological pluralism in these decisions, coupled with a lack of explicit normative direction, may indicate that most Justices are approaching constitutional election law thinking less about doctrinal coherence or interpretive principle than about the instrumental consequences of their rulings for the system of government as a whole. [PUBLICATION ABSTRACT]