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- Voting Rights Act (9)
- Gerrymandering (6)
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- Shelby County v. Holder (4)
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- Reynolds v. Sims (2)
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- 118 U.S. 356 (1)
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- 377 U.S. 533 (1)
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- Caperton v. Massey Coal Company (1)
- Chiafalo Electors (1)
- Citizen's United v. Federal Election Commission (1)
Articles 1 - 24 of 24
Full-Text Articles in Law
Chiafalo: Constitutionalizing Historical Gloss In Law And Democratic Politics, Luis Fuentes-Rohwer, Guy-Uriel Charles
Chiafalo: Constitutionalizing Historical Gloss In Law And Democratic Politics, Luis Fuentes-Rohwer, Guy-Uriel Charles
Articles by Maurer Faculty
We make one central point in this Article. Justice Kagan’s opinion in Chiafalo uses historical gloss to entrench a particular and modern view of political participation—which is best reflected by American political practices— by rejecting an alternative and anachronistic view—which is best reflected by the text and structure of the Constitution. Part I argues that Chiafalo is not a textualist opinion because Article II, Section 1 does not support the majority’s conclusion that states have the power to limit elector discretion. The majority’s reasoning to the contrary is not persuasive, even on its own terms. Part II argues that Chiafalo …
Slouching Toward Universality: A Brief History Of Race, Voting, And Political Participation, Luis Fuentes-Rohwer, Guy-Uriel Charles
Slouching Toward Universality: A Brief History Of Race, Voting, And Political Participation, Luis Fuentes-Rohwer, Guy-Uriel Charles
Articles by Maurer Faculty
In this brief history of race and voting in the United States, we look at five distinctive yet interrelated moments. The first is the founding period, a moment when the framers put our constitutional structure in place and set the initial federalist calculus in favor of the existing states. This is perhaps the most important moment in the story. The framers chose to allow the states to define the criteria for voting qualifications for federal elections. Instead of uniformity and centralization, they opted for diversity and decentralization. This is a choice that reverberates to this day. The second moment is …
Dirty Thinking About Law And Democracy In Rucho V. Common Cause, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
Dirty Thinking About Law And Democracy In Rucho V. Common Cause, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
Articles by Maurer Faculty
In order to understand the division in Rucho and, as importantly, to understand why the plaintiffs in Rucho failed to win over the conservatives on the Court, we have to come to terms with these different worldviews on the Court. Is sordid politics an inherently necessary and arguably normatively good part of the political process, and thus a necessary part of our representative institutions? Relatedly, do substantive fairness principles exist—outside of race and the equal-population principle—that constrain political actors when they design electoral structures to favor themselves at the expense of their opponents? We take up these questions in the …
Judicial Selection And The Search For Middle Ground, Charles G. Geyh
Judicial Selection And The Search For Middle Ground, Charles G. Geyh
Articles by Maurer Faculty
This Article seeks to transcend perennial election versus appointment debates-including debates over campaign finance and the impact of "dark money"-by taking a closer look at why judicial selection is a contentious mess and discussing how it might be fixed. First, I present the case for elective and appointive systems. Second, I show that the arguments for each system are exaggerated or flawed.Third, I explore why it has been hard for proponents of each system to perceive and acknowledge those exaggerations and flaws, and propose ways to narrow the divide. Although the divide can and should be narrowed, I conclude that …
Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
Articles by Maurer Faculty
This article explores the Supreme Court's new racial gerrymandering cases and argue that those cases are on a collision course with Section 2 of the VRA. We revisit the Shaw line of cases and explain that the Shaw cases were more sympathetic to the representational rights of voters of color than are the new racial gerrymandering cases. This is primarily because the Shaw cases made room within the doctrine for the state to pursue descriptive representation for voters of color. We argue that new racial gerrymandering cases are inimical to descriptive representation. To the extent that voting rights scholars and …
Judicial Intervention As Judicial Restraint, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
Judicial Intervention As Judicial Restraint, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
Articles by Maurer Faculty
This paper examines the Court's decision in Gill v. Whitford. It advances two claims. First, it provides a comprehensive account of the Court's skepticism of judicial supervision of democratic politics, an account that we call the narrative of nonintervention. It situates Gill within that account and argues that the Court's reluctance to intervene is a function of the Court's institutional calculus that it ought to protect its legitimacy and institutional capital when it engages in what look like political fights. Second, the paper provides an instrumentalist account for judicial intervention. It argues that the Court should intervene to prevent partisan …
Transforming Election Cybersecurity, David P. Fidler
Transforming Election Cybersecurity, David P. Fidler
Articles by Maurer Faculty
No abstract provided.
Beyond Citizens United, Nicholas Almendares, Catherine Hafer
Beyond Citizens United, Nicholas Almendares, Catherine Hafer
Articles by Maurer Faculty
The doctrine announced in Citizens United rendered most efforts to regulate campaign financing unconstitutional. We argue, however, that the doctrine allows for a novel approach to the concerns inherent in campaign financing that does not directly infringe on political speech, because it operates later in the process, after the election. This approach allows us to address a broad range of these issues and to do so with legal tools that are readily available. We describe two applications of our approach in this Article. First, we argue that courts should use a modified rational basis review when a law implicates the …
Who's Afraid Of The Hated Political Gerrymander?, Luis Fuentes-Rohwer
Who's Afraid Of The Hated Political Gerrymander?, Luis Fuentes-Rohwer
Articles by Maurer Faculty
The political gerrymander has few friends among scholars and commentators. Even a majority on the Supreme Court agreed that the practice violates constitutional and democratic norms. And yet, this is one of the few issues that the US. Supreme Court refuses to regulate. The justices mask their refusal to regulate this area on a professed inability to divine judicially-manageable standards. In turn, scholars offer new standards for the justices to consider. This is not only a mistake but also misguided. The history of the political question doctrine makes clear that the discovery of manageable standards has never controlled the Court's …
Race, Federalism, And Voting Rights, Luis Fuentes-Rohwer, Guy-Uriel Charles
Race, Federalism, And Voting Rights, Luis Fuentes-Rohwer, Guy-Uriel Charles
Articles by Maurer Faculty
No abstract provided.
The Jekyll And Hyde Of First Amendment Limits On The Regulation Of Judicial Campaign Speech, Charles G. Geyh
The Jekyll And Hyde Of First Amendment Limits On The Regulation Of Judicial Campaign Speech, Charles G. Geyh
Articles by Maurer Faculty
No abstract provided.
The Voting Rights Act In Winter: The Death Of A Superstatute, Luis Fuentes-Rohwer, Guy-Uriel Charles
The Voting Rights Act In Winter: The Death Of A Superstatute, Luis Fuentes-Rohwer, Guy-Uriel Charles
Articles by Maurer Faculty
The Voting Rights Act ("VRA "), the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand today's voting rights questions. As a result, voting rights activists need to face up to the fact that voting rights law and policy are at a critical moment of transition. It is likely the case that the superstatute we once knew as the VRA is no more and is …
Reynolds Reconsidered, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
Reynolds Reconsidered, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
Articles by Maurer Faculty
No abstract provided.
Voting Rights Law And Policy In Transition, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
Voting Rights Law And Policy In Transition, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
Articles by Maurer Faculty
No abstract provided.
State's Rights, Last Rites, And Voting Rights, Luis Fuentes-Rohwer, Guy-Uriel Charles
State's Rights, Last Rites, And Voting Rights, Luis Fuentes-Rohwer, Guy-Uriel Charles
Articles by Maurer Faculty
There are two ways to read the Supreme Court's decision in Shelby County Alabama v. Holder: as a minimalist decision or as a decision that undermines the basic infrastructure of voting rights policy, law, and jurisprudence. In this Article, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race …
Mapping A Post-Shelby County Contingency Strategy, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
Mapping A Post-Shelby County Contingency Strategy, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
Articles by Maurer Faculty
Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entities and organized interest groups of various stripes—what they call institutional intermediaries—may be willing and able to mimic the elements that made section 5 an effective regulatory device. As voting rights activists plot a post-Shelby County contingency strategy, they should both account for institutional intermediaries and think about the types of changes that could enhance the ability of these …
Is This The Beginning Of The End Of The Second Reconstruction?, Luis Fuentes-Rohwer
Is This The Beginning Of The End Of The Second Reconstruction?, Luis Fuentes-Rohwer
Articles by Maurer Faculty
This article discusses the history, present, and possible future of the Voting Rights Act.
Justice Kennedy To The Rescue?, Luis Fuentes-Rohwer
Justice Kennedy To The Rescue?, Luis Fuentes-Rohwer
Articles by Maurer Faculty
No abstract provided.
Looking For A Few Good Philosopher Kings: Political Gerrymandering As A Question Of Institutional Competence, Luis Fuentes-Rohwer
Looking For A Few Good Philosopher Kings: Political Gerrymandering As A Question Of Institutional Competence, Luis Fuentes-Rohwer
Articles by Maurer Faculty
The redistricting season is about to begin in full swing, and with it will come renewed calls for the federal courts, and particularly the U. S. Supreme Court, to aggressively review the work of the political branches. This is an intriguing puzzle. Since the early 1960’s, the federal courts have regulated questions of politics aggressively. They have done this even in the face of difficult questions of political representation. The courts have taken sides, to be sure, but these can only be described as acts of volition and will, not constitutional law. The leading case is Reynolds v. Sims. This …
Ethnicity, Elections, And Reform In Burma, David C. Williams
Ethnicity, Elections, And Reform In Burma, David C. Williams
Articles by Maurer Faculty
No abstract provided.
Judicial Elections In The Aftermath Of White, Caperton, And Citizens United, Charles G. Geyh
Judicial Elections In The Aftermath Of White, Caperton, And Citizens United, Charles G. Geyh
Articles by Maurer Faculty
No abstract provided.
The Future Of Section 2 Of The Voting Rights Act In The Hands Of A Conservative Court, Luis Fuentes-Rohwer
The Future Of Section 2 Of The Voting Rights Act In The Hands Of A Conservative Court, Luis Fuentes-Rohwer
Articles by Maurer Faculty
This Essay argues that the future of the majority-minority district is in peril, as a conservative majority on the Court stands poised to strike down section 2 of the Voting Rights Act. When the Court takes up the constitutionality of Section 2, binding precedent will play a secondary role at best. Instead, the Justices’ policy goals and ideological preferences - namely, their personal disdain for the use of race in public life - will guide the Court’s conclusion. In this vein, Justice Kennedy holds the fate of the Act in his hands. To be clear, this Essay is not trying …
Taxing Political Donations: The Case For Corrective Taxes In Campaign Finance, David Gamage
Taxing Political Donations: The Case For Corrective Taxes In Campaign Finance, David Gamage
Articles by Maurer Faculty
Command-and-control regulations are generally thought to be inferior to incentive-based alternatives. This essay proposes an incentive-based approach for regulating campaign finance. In place of our current regime of contribution ceilings, the essay calls for a graduated system of contribution taxes. Rather than capping the size of political donations at a specified dollar level, we should tax donations based on a schedule of graduated rates - the larger the size of a contribution, the higher the level of taxation.
Contribution taxes generate two primary advantages over contribution ceilings. First, contribution taxes preserve more total surplus. This surplus can be shared by …
The Emptiness Of Majority Rule, Luis Fuentes-Rohwer
The Emptiness Of Majority Rule, Luis Fuentes-Rohwer
Articles by Maurer Faculty
No abstract provided.