Electoral competition, like athletic competition, requires its own norms of fair play. While the rules of the game, and the institutional umpire to enforce those rules, are important components for achieving the goal that the competition be fair, they do not suffice. The participants themselves must have their own standards of fair play apart from the rules and the referee. This need is particularly acute with respect to negative campaign ads, since the First Amendment bars the government from umpiring the fairness of those ads. But the same problem applies to other aspects of electoral competition, including compliance with campaign finance rules. What are these norms of fair electoral competition? Are they only intuitive, or can they be systematized? More specifically, insofar as incumbent candidates are officeholders, does due process constrain the use of their power to attain an unfair advantage in their race for reelection?
Edward Foley directs Election Law @ Moritz at Ohio State’s law school, where he also holds the Ebersold Chair in Constitutional Law. His book Ballot Ballots: The History of Disputed Elections in the United States, published by Oxford University Press, was available as of December 2015. Ned also serves as the reporter for the American Law Institute’s Election Law Project, which is developing nonpartisan rules for the resolution of disputed elections. (The American Law Institute is the well-respected professional society responsible for the Restatements of Law and the Model Penal Code, among many other projects.) While Ned has special expertise on the topics of recounts, he is conversant in all topics of election law, including redistricting and campaign finance, and recently co-authored a casebook Election Law and Litigation: The Judicial Regulation of Politics (Aspen 2014), which covers all aspects of election law. He and his casebook co-authors also have a contract with Oxford University Press to write a treatise on election law—remarkably the first of its kind in the United States in over a century. He is also a co-author of From Registration to Recounts: The Ecosystems of Five Midwestern States (2007).