Category Archives: election law and constitutional law

Kirsten Nussbaumer: “In Louisiana v. Bryson, the state of Louisiana has asked the U.S. Supreme Court to exclude so-called “non-immigrant foreign nationals” from the federal census count for purposes of interstate apportionment of congressional representatives.  If Louisiana has a shot, this would be an important case.”

Kirsten Nussbauer has posted this draft on SSRN.  Here is the abstract:

At the time of the American founding, discourse about election regulation was shaped by a venerated — but now long-forgotten — “republican” (or “whig”) tradition that taught that important election rules ought to be “fixed” in constitutions, not left to mere ordinary law, in order to protect popular sovereignty and limit electoral manipulation for incumbent, factional or partisan advantage. Men speaking on all sides of the debates about the framing and ratification of the U.S. constitution repeatedly invoked Montesquieu as authority for this tradition, and used (their understanding of) his precepts in order to evaluate each election provision of the proposed constitution for its conformity to the tradition. While some elections provisions were received as sharp departures from the tradition, others were taken to be faithful accommodations of the republican tradition to a new variant of federalism. Over time, the republican electoral tradition evolved from an emphasis on entrenching election rules against change to mere entrenchment of a requirement that election reform be channeled through constitutional processes.