Based on my experience using the book as a class text, I can report that it is indeed an engaging piece of work. The students (a mix of law and upper-level undergraduates) found the presentation quite manageable and provocative. Issacharoff, Karlan and Pildes have put together not only a text, but also a statement about the current status and function of democracy in the United States. The book is a TOUR DE FORCE of every aspect of American election law as well as the controversies that inhere in both democratic theory and the jurisprudence. Organized into 11 chapters, it provides a solid overview of the issues that inform contemporary debates about how democracy should be organized, how it could be reformed and the role the judiciary should play in this process

The authors also do not hesitate to show the reader that they seek to do more than simply organize the relevant case law into this highly useful text. At the outset they state that "the election process emerges from previously fixed--and often carefully orchestrated--institutional arrangements that influence the range of possible outcomes that formal elections and subsequent policymaking can achieve." Accordingly, Issacharoff, Karlan and Pildes conclude that "there is no 'We the People' independent of the way the law constructs democracy"(1-2). Thus, the authors express concern that "those who control existing arrangements have the capacity to shape, manipulate and distort democratic processes…[and] will deploy that power to preserve their control. Thus, democratic politics constantly confronts the prospect of law being used to freeze existing political arrangements into place…" (2).

There is no doubting the authors' concerns about the integrity of the democratic process. The problem however, is that this approach virtually ensures that one will find a potential threat to democracy wherever one looks because the American political system is predicated on the Madisonian assumption that factional impeti will drive people to pursue their private interests by taking advantage of existing political institutions. Accordingly, each chapter of the book--with the exception of those addressing the ins and outs of the Voting Rights Act preclearance provisions--embodies a discrete controversy that inheres in democratic theory and which the courts have been unable to resolve by relying on the Constitution. To go through each chapter would lengthen this review unnecessarily. I will, therefore, address the broad themes that Issacharoff, Karlan and Pildes identify.

First, there is the fear that entrenched legislators will be able to use the government apparatus to further their own ends at the expense of popular accountability. This manifests itself in discriminatory ballot access laws, legislative failure to reform campaign finance rules and so forth. The tension exists between the elected legislators who, by virtue of their powers, can institute subventions to render the electoral process less competitive and, in so doing, secure their positions and the people for whose benefit they were elected in the first place. In this case, the judiciary would appear to play the role of popular advocate against the rapacious aims of the unaccountable, elected officials.

The vision of government that inheres in the second tension does not perceive such an Orwellian arrangement. Instead, the "people" don't exist in the aggregate nor does the government embody the 1984-ish self-interest. Instead, the polity is perceived in classic Madisonian terms. Various groups compete to gain control over the governmental apparatus either to pursue their vision of the public interest or to implement their own partisan program with the backing of a popular mandate. In this scenario, the law and cases embody the tension between the Constitution's restraints on the popularly elected majority and the minority who, while subject to all the reasonable losses that can be expected in a competitive, partisan political system, still remains entitled to certain basic rights stated in the Constitution.

Depending on which vision of "the people" one uses, the case law can appear quite reasonable or controversial. The problem is that the two visions can be said to apply to any controversy simultaneously. This is perhaps best shown in chapter 9, "Direct Democracy." Were one to jump from the introduction to this discussion, one might expect praise for the use of referenda and initiatives because they would seem to ensure that "the people" would have a resort against the unaccountable elected officials. However, in some cases, the elected officials are acting on behalf of a well-organized minority (such as homosexuals in EVANS v. ROMER) or a politically oppressed one (such as black voters in HUNTER v. ERICKSON). Accordingly, the initiative and referendum become means by which an aggressive majority can get around the wisdom of the elected legislators.

The Direct Democracy chapter does, in many aspects, clearly manifest all of the tensions that inhere in the case law. "The people" are the good guys fighting the government in some cases and "the bad majority" seeking to squash a minority in others. Minorities can be cast as helpless political actors who are being cut out of the political process in the White Primary cases or as disproportionately powerful actors who, through their organizational skills, can railroad controversial legislation through the political process despite the wishes of a corresponding majority in ROMER.

When, as in ROMER, the elected officials act against the majority's wishes in favor of minority demands, they are praised for doing so. But, when the government, on behalf of a majority or, perhaps, in furtherance of its vision of the public interest, erects ballot access hurdles (WILLIAMS v. RHODES, TIMMONS v. TWIN CITIES AREA NEW PARTY) or refuses to reform campaign finance laws, it is accused of betraying the public trust. Similarly, critics debate whether it is justifiable for legislative majorities to enhance minority political influence by constructing majority-minority districts when such majorities are criticized for gerrymandering for their own benefit.

Similarly, in chapter 2 "The Right to Participate," the authors present the enfranchisement issue in terms of two different scenarios embodying the conflict between political ins who have the franchise and political outs who don't. The outs take the role of, for example, women and blacks before the Constitution was amended to enfranchise them and, later, blacks seeking access to the nomination process in the White Primary Cases. On the one hand, we encounter the seemingly legitimate desire of an existing polity to preserve its integrity and avoid electoral fraud by establishing reasonable franchise restrictions. On the other, we see that same scenario's darker side in the White Primary cases where one set of political ins is oppressing another.

This subject is actually an ideal one with which to begin the book's substantive chapters because the case law in this area is an amalgam of disparate and sometimes contradictory decisions. In the prior (introductory chapter) the authors contend that the courts must oversee the electoral process. If they do not, "we risk leaving the power to shape the fundamental ground rules of politics in the largely unaccountable hands of existing officeholders"(2).

This particular passage is especially compelling. If ELECTED officeholders are not to be trusted because THEY are unaccountable, on what grounds can we find solace in a judiciary that is even less accountable? The accountability of the courts notwithstanding, the case law displays the limits to Issacharoff, Karlan and Pildes' assertion that the judiciary is "the sole branch of the government capable of destabilizing an apparently unshakable lockup of the political process"(2-3). Clearly, the judiciary is part of the government that the Constitution would limit as well as empower. As a result, throughout the book, a tension exists regarding the placement of the judiciary in the political spectrum: when does it speak as part of the government? When does it speak simply as the repository of constitutional values? When does it speak on behalf of the people against the government?

In many respects, the authors' reliance on the judiciary to resolve issues of democracy echoes the theory of judicial review set forth by John Hart Ely in DEMOCRACY AND DISTRUST. As a result, THE LAW OF DEMOCRACY is subject to some of the same criticisms. Issacharoff, Karlan and Pildes point out early on that existing institutional arrangements and democratic conventions should not be given A PRIORI deference because they are, in fact, little more than the product of bargaining among competing political actors. Insofar as the Constitution is silent regarding which vision of democracy is most compatible with its text, Issacharoff, Karlan and Pildes, like Ely, place the judiciary in an untenable position. On the one hand, its institutional independence makes it the preferable--if not necessary--agent of resolving democratic conflicts that arise as a result of the Constitution's silence. However, judicial resolution of such controversies necessitates judicial development of a preferred vision of democracy.

No single democratic vision will resolve all of the controversies that the case law embodies. As a result, Issacharoff, Karlan and Pildes' reliance on the judiciary to resolve election law controversies would be more compelling if it were clear that there is a vision of democracy absolutely preferable to that which informs judicial reasoning in any given case. However, the jurisprudence embodies conflicting democratic visions, and no one vision seems appropriate for resolving all controversies that arise in election law cases. Thus, what appears to be lacking from the jurisprudence is not ONE coherent democratic vision but, instead, a judicial ability to shift back and forth among competing democratic visions depending on the issues at and the nature of the parties involved stake in any given case.

Deference to such a court would require the ascription of precisely the same A PRIORI legitimacy to judicial reasoning that Issacharoff, Karlan and Pildes say we should not offer to existing institutional arrangements or canons of constitutional interpretation. Thus, another lesson that THE LAW OF DEMOCRACY teaches is that the controversies that inhere in electoral process case law really have everything to do with the conflicting strains of democratic theory and, in reality, little to do with the inconsistencies of jurisprudence. What we find unsettling about the Supreme Court's jurisprudence is merely a reflection of the unresolved questions that inhere in democratic theory.

While the authors do discuss the doctrinal tensions and inconsistencies that characterize American jurisprudence, it would be easier for students to appreciate the complexity of the issues at stake if they were presented in more detailed terms of democratic theory and political science. The authors incorporate some discussion of electoral systems research in their concluding chapter "Alternative Democratic Structures." However, an additional chapter that ties up some of the issues raised in the text and relates them to democratic theory and political science would help to bring the book to a close.

Were the controversies surrounding election law only questions of democratic theory, the task of organizing the case law would be reasonably simple. This is not to suggest that democratic theory is an easily managed body of thought. It too is laden with numerous tensions that arise from the incompatible values embodied in the various strains of democratic thought (see, e.g., Katz 1997). But, political science research sends out one clear message: electoral (or constitutional) arrangements that are successful in one set of circumstances will not necessarily ensure equally successful--or desirable--results under another.

Insofar as any discussion of voting rights in the American context must incorporate the dominant role of the Voting Rights Act (VRA), the lessons to be learned from democratic theory are limited. The VRA identifies specific groups whose representational opportunity is to be protected or even ensured. As a result, it is difficult to reconcile the group-specific demands of the VRA with the more systemically oriented emphases of political science research on electoral systems. While political science literature remains divided regarding which electoral arrangement is "the best," the terms of debate are not dependent upon the fates of specific or discrete minorities. Accordingly, an infusion of additional discussion concerning the thrust of electoral systems research would reveal more clearly that, while the VRA may contemplate the employment of Proportional Representation (PR) and other alternative democratic structures, advocates of PR would not necessarily endorse or support the group-specific thrust of parts of the VRA.

While political scientists and lawyers can take different approaches to the issues at stake, I can happily conclude this review on an unqualified, favorable note. THE LAW OF DEMOCRACY is a superior text that will provide a solid foundation for any course on election law. It provides tremendous coverage of a broad and complex area of the law. The fact that the authors wrestle with the difficulties of reconciling democratic theory and election law throughout the text of the book serves only to enhance its impact. This area of the law is indeed riddled with controversy and contradiction. THE LAW OF DEMOCRACY will impress that fact upon students and faculty alike.


REFERENCES

Ely, John Hart. 1980. Democracy and Distrust. Cambridge: Harvard University Press.

Katz, Richard S. 1997. Democracy and Elections. New York: Oxford University Press.

Copyright 1998 by the author