In the 2019 decision Rucho v. Common Cause, the U.S. Supreme Court concluded that federal challenges to partisan gerrymandering—a practice yielding election results that “reasonably seem unjust”—were non-justiciable. If partisan gerrymandering claims are not federally justiciable, and if that conclusion emboldens politicians, how else might incumbents manipulate election mechanics to preserve their political advantage? This Article explores one possibility that was briefly mentioned by the Rucho majority: the strategic advancement or delay of the date of a federal election. The strategic shift of election day is not simply a theoretical problem. Foreign politicians have strategically altered their election days for partisan advantage, U.S. states have delayed elections to fill vacant seats in the Senate, and members of the U.S. Congress have repeatedly proposed changing the date of federal elections.
Because the U.S. Constitution empowers federal legislators to establish the date of a federal election, just as the Rucho Court emphasized that our charter empowers state legislators to establish federal districts, a court may conclude that any challenge to a shift in the date of an election is non-justiciable. This Article addresses charter provisions not pertinent to partisan gerrymandering that limit legislative discretion regarding a shift in the date of a federal election. Moreover, this Article expands on a growing body of scholarship that recognizes federal legislators as fiduciaries and that imports principles of corporate law to analyze issues of federal election law. Given the foundational importance of the shareholder franchise to corporate law, courts closely scrutinize decisions by directors that impede shareholders’ effective franchise, such as a shift in the date that shareholders elect directors. Those corporate law principles should inform a court’s analysis of any challenge to a shift in the date of a federal election.
Recommended CitationSteven J. Cleveland, Politicians as Fiduciaries: Public Law v. Private Law When Altering the Date of an Election, 77 Wash. & Lee L. Rev. 1463 (2020).
Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol77/iss4/4