The administrative state is a favorite target of the current Supreme Court. A majority of the justices would like to see the size and scope of the federal bureaucracy significantly limited. One rationale that these justices consistently advance is the idea that the administrative state is unaccountable to the electorate. In an effort to reintroduce accountability into federal policymaking, these justices promote three different administrative law doctrines: the nondelegation doctrine, the major questions doctrine, and the unitary executive theory.
But at the same time these justices decry the lack of political accountability in the administrative state, they have steered the Court’s election jurisprudence away from a rigorous examination of state election regulations. Through signaling some interest in the independent state legislature theory, abandoning judicial review of partisan gerrymandering, and refusing to address the constitutionality of voter identification (“ID”) laws, these justices miss a crucial connection between administrative law and election law.
By failing to safeguard considerations of democratic accessibility in its election law jurisprudence, the Court undermines its stated goal of ensuring that voters can hold their elected policymakers accountable. By focusing only on the political accountability concerns raised in administrative law cases, these justices overlook the fact that full democratic accessibility is a fundamental prerequisite to electoral accountability.
This Article identifies the disconnect and suggests possible causes and potential remedies. Ultimately, the Article suggests that the Court should recognize political accountability as a value worth promoting and should rectify the disconnect by incorporating these political accountability concerns into its election law jurisprudence.
