Due Process

"Equal Right to the Poor"
Richard M. Re
Assistant Professor of Law, UCLA School of Law

Many thanks to Michelle Wilde Anderson, Will Baude, Josh Blackman, Sam Bray, Grace Bridwell, Craig Chosiad, Ryan Doerfler, Laura Donohue, Elliot Dorff, Greg Dubinsky, Kristen Eichensehr, Jonah Gelbach, Robert Goldstein, Mark Greenberg, Tara Leigh Grove, John McGinnis, Aaron Nielson, Jide Nzelibe, Jim Pfander, Alex Potapov, Sabeel Rahman, Larry Sager, Seana Shiffrin, Ganesh Sitaraman, Mila Sohoni, Sabine Tsuruda, Mark Tushnet, Margo Uhrman, David Waddilove, Eugene Volokh, Adam Winkler, Rebecca Zietlow, The University of Chicago Law Review, and participants in the Northwestern Constitutional Law Colloquium, the University of Pennsylvania Legislation Workshop, the Junior Scholars Federal Courts Workshop, and the UCLA School of Law Faculty Colloquium.

During the confirmation hearings for then-Judge John Roberts, Senator Richard Durbin asked about economic equality.

Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of Election Laws
Edward B. Foley
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and Director, Election Law @ Moritz, The Ohio State University Moritz College of Law

This Article, part of a larger project on the concept of fair play in electoral competition, grows out of research conducted during a fellowship at Stanford University’s Center on Democracy, Development, and the Rule of Law (CDDRL). I am extremely grateful, both for the fellowship itself and for the many helpful exchanges of ideas during the fellowship, to Bruce E. Cain, Larry Diamond, Francis Fukuyama, Nathaniel Persily, and Stephen J. Stedman. While at Stanford, I had the opportunity to present an early version of this Article at the Stanford Law Review’s symposium on the “Law of Democracy” (February 5, 2016), and also as part of a CDDRL workshop (February 25, 2016). I also presented a version at the University of Kentucky College of Law (April 1, 2016). I very much appreciate the feedback I have received from those who participated at these events, including Tabatha Abu El-Haj, Stephen Ansolabehere, Rabia Belt, Guy-Uriel Charles, Joshua A. Douglas, Luis Fuentes-Rohwer, Heather Gerken, Richard L. Hasen, Samuel Issacharoff, Michael S. Kang, Eugene Mazo, Michael W. McConnell, Maggie McKinley, Spencer A. Overton, Richard H. Pildes, Bertrall Ross, Jane S. Schacter, Nicholas Stephanopoulos, and Justin Weinstein-Tull. As always, I’ve benefited immensely from feedback received from my Moritz colleagues, especially Steven F. Huefner and Christopher J. Walker, as well as Michael Les Benedict, Lisa Marshall Manheim, and Evan Zoldan. I have also been tremendously fortunate to work with Matt Cooper and Paul Gatz, two of Moritz’s superb law librarians, who have been amazingly creative and effective in unearthing a wide range of sources for this project.

Can the US Constitution, as currently written, handle the problem of excessive partisanship? Or, instead, does the Constitution need to be amended to address this problem?