Ashraf Ahmed (Columbia Law School) has posted The Two Faces of Representation on SSRN. Here is the abstract:
Despite broad judicial and scholarly agreement that representation is central to election law, the Supreme Court is deeply ambivalent in how it treats the concept. This Article explains this ambivalence and shows its theoretical stakes for the field and public law more generally. It argues that the Court's approach to representation is Janus-faced. Its first face, which it terms the "skeptical tradition" is decidedly anti-theoretical. Largely confined to the Fourteenth Amendment, the skeptical tradition counsels the Court against deciding cases that require theorizing representation for epistemic, institutional, and interpretive reasons. The Article then turns to the second face of representation where the Court, under the First Amendment, routinely theorizes core facets of representation. In cases regulating campaign finance and the associational rights of parties, the Court expounds on the formation of public opinion, the relative standing and efficacy of different speakers, the nature of representational failure, and the role of political parties. The two faces of representation thus reveal a deep disjuncture between the Court's self-conception and its actual work.
This Article uses the two faces of representation to draw two theoretical conclusions, one that renders election law ordinary and the other special. First, the two faces reaffirm the need for judicial theorizing in election law. More than that, however, this demand applies to public law adjudication more broadly. When judges apply a general legal principle to a specific entity, whether it is an institution, individual, or process, they need some account of the object being regulated. If that object provokes normative or empirical disagreement, this acutely surfaces theoretical work that is implicit in legal reasoning more generally. Second, the theoretical demands of election law pose a problem for "incompletely theorized agreements," a form of judicial minimalism. The two faces suggest that theoretical minimalism is both descriptively naïve, because it misses the implicit theory in the mine-run of cases, and normatively vulnerable, since theoretical shortfalls in election law-descriptive or normative-are also democratic deficits, insofar as election law constitutes the democratic process.
Highly recommended.