Election Law @ Moritz

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

The Necessity of Law for Democracy

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June 15, 2004

As we approach the nation's birthday on July 4, we are reminded that the founders were revolutionaries, who declared "[t]hat whenever any form of Government becomes destructive of these ends [i.e, the security of basic human rights], it is the Right of the People to alter or to abolish it." By saying also that "Governments...deriv[e] their just powers from the consent of the governed," the Declaration of Independence seems to put the people first, and the law second. The founding idea seems to be, in other words, that the law and its authority follow from democracy, and not the other way around.

Yet the founders knew that, without law, there would be no democracy. At the top of the list of the "long train of abuses" that the Declaration cites against King George, first and foremost is the fact that he suspended the legislative powers of the Colonies, with the consequence that they could not rule themselves democratically. By "taking away our Charters, [thereby] abolishing our most valuable Laws," King George disabled the Colonies from even organizing themselves in a form that would permit authority to flow peaceably from the people. Without what we today would call the organic or constitutional law that establishes the authority of the Legislature, and determines the procedures by which its members are elected, civil society is subject to the mercies of internal "convulsions," as the Declaration puts it. Revolution, in the eyes of our law-venerating founders, was but a temporary and extraordinary measure to avoid the lawlessness of arbitrary tyranny and restore the constitutive power of the people to form legislative bodies by means of an organic Charter of Government.

Today, perhaps even more than then, we recognize the necessity of law to specify the procedures that make democracy possible. We have learned that we need the constitutional rule of "one-person-one-vote," or else our state legislatures fail the first principle of democracy. We know, too, that democracy does not exist if it is a crime to criticize the government and the Constitution contains no freedom of speech to protect against prosecutions for this crime.

The lesson of the 2000 election is that we need more democracy-defining law, not less. The problem that the Supreme Court perceived in Bush v. Gore was that Florida had failed to specify the rules for determining when a "chad" gets counted as a vote. Had Florida adopted a law stipulating that a chad gets as a vote when, but only when, light shines through a puncture in the ballot, there would have been no need for the Court to find a flaw in the recount procedures ordered by the state's judiciary.

Democracy, alas, is not self-executing. It needs rules to operate. In creating Election Law @ Moritz, we are dedicating ourselves to identifying and explaining the rules that make democracy work and, where necessary, proposing reforms or new measures to make it work better. We hope that, in doing so, we can make some small contribution to the "sacred Honor" of self-rule that our forebears have bequeathed to us.