Over at SSRN, I've posted a draft of The Democracy Ratchet, forthcoming in the Indiana Law Journal. Comments welcome! The abstract:
Litigants seeking to lift burdens on the right to vote and judges adjudicating these claims have an unremarkable problem—what is the benchmark for measuring the nature of these burdens? Legal theories abound for claims under the constellation of rights known as the "right to vote." And when a legislature changes a voting practice or procedure, courts may have an easy benchmark—they can consider what the right to vote looked like before and after the enactment of the new law, and they can evaluate a litigant’s claim on that basis. Recently, federal courts have been relying on this benchmark for the principal causes of action litigants might raise after a new law has been enacted—a Section 2 challenge under the Voting Rights Act, a freedom of association claim subject to the Burdick balancing test, and an Equal Protection analysis derived from Bush v. Gore. And frequently, courts have found that new laws that eliminate once-available voting practices or procedures fail.
I describe this new practice as the Democracy Ratchet. But it is only recently that a convergence of factors have driven courts to (often unwittingly) adopt the Democracy Ratchet more broadly. So while a legislature can expand such opportunities, courts scrutinize cutbacks on such opportunities with deep skepticism—deeper than had no such opportunity ever existed. The ratchet tightens options, squeezing the discretion that legislatures once had.
This Article seeks to solve the puzzle of how courts have scrutinized, and should scrutinize, legislative changes to election laws. Part I identifies recent instances in which federal courts have invoked a version of the Democracy Ratchet. It identifies the salient traits of the Democracy Ratchet in these cases. Part II describes why the Democracy Ratchet has gained attention, primarily as a tactic of litigants and as a convenient benchmark in preliminary injunction cases. Part III examines of the history of the major federal causes of action concerning election administration—Section 2 of the Voting Rights Act, the Burdick balancing test, and the Equal Protection Clause. In each, it traces the path of the doctrine to a point where a version of the Democracy Ratchet might be incorporated into the test. It concludes that these causes of action do not include a substantive Democracy Ratchet. Part IV turns to determine how the Democracy Ratchet might be used. It concludes that the Democracy Ratchet is best identified as an evidentiary device and a readily-available remedy for courts fashioning relief. It then offers suggestions for its appropriate use. Part V identifies some concerns with existing use of the Democracy Ratchet and instances in which it may be incorrectly used. It offers guidance for courts handling changes to election laws. Part VI concludes.