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Full-Text Articles in Law
Eight Months Later, Ellen D. Katz
Eight Months Later, Ellen D. Katz
Reviews
Rick Hasen’s Election Meltdown provides a concise and scathing analysis of what ails the American electoral process. Rick identifies four “principal dangers”—namely, voter suppression, “pockets of incompetence” in election administration, “dirty tricks,” and “incendiary rhetoric” about stolen or rigged elections. He argues that these dangers have contributed to past dysfunctional elections and are sure to infect future ones. Election Meltdown closes with some proposals to temper the identified dangers so as to make voting less difficult and restore confidence in the electoral process.
Hollowed-Out Democracy, Kate Andrias
Hollowed-Out Democracy, Kate Andrias
Articles
Professors Joseph Fishkin’s and Heather Gerken’s essay for this symposium, The Two Trends That Matter for Party Politics, along with the larger project of which it is a part, marks a notable turn (or return) in the law-of-democracy field. Unlike much recent scholarship, Fishkin’s and Gerken’s work does not offer a comprehensive theory of corruption or equality, but instead analyzes the relationship between campaign finance law and the actual functioning of political parties in our democracy. In brief, Fishkin and Gerken tell us that our contemporary political parties are at once highly polarized and oddly weak. They claim this is …
Election Law's Lochnerian Turn, Ellen D. Katz
Election Law's Lochnerian Turn, Ellen D. Katz
Articles
This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.
Withdrawal: The Roberts Court And The Retreat From Election Law, Ellen D. Katz
Withdrawal: The Roberts Court And The Retreat From Election Law, Ellen D. Katz
Articles
Last Term the Supreme Court handed down four decisions that upheld diverse efforts by state governments to regulate the electoral process. The Court turned back challenges to New York’s method for nominating judicial candidates, Washington’s modified blanket primary system, Indiana’s voter identification requirement, and Alabama’s use of gubernatorial appointment to fill county commission vacancies in Mobile County. Unlike other recent election decisions, these were not close cases. All nine Justices supported the New York holding, while supermajorities voted in favor of the result in the others. This consensus, moreover, emerged even as the Court voted to reverse unanimous decisions by …
Why Counting Votes Doesn't Add Up: A Response To Cox And Miles' Judging The Voting Rights Act, Ellen D. Katz, Anna Baldwin
Why Counting Votes Doesn't Add Up: A Response To Cox And Miles' Judging The Voting Rights Act, Ellen D. Katz, Anna Baldwin
Articles
In Judging the Voting Rights Act, Professors Adam B. Cox and Thomas J. Miles report that judges are more likely to find liability under section 2 of the Voting Rights Act (VRA) when they are African American, appointed by a Democratic president, or sit on an appellate panel with a judge who is African American or a Democratic appointee. Cox and Miles posit that their findings “contrast” and “cast doubt” on much of the “conventional wisdom” about the Voting Rights Act, by which they mean the core findings we reported in Documenting Discrimination in Voting: Judicial Findings Under Section 2 …
Resurrecting The White Primary, Ellen D. Katz
Resurrecting The White Primary, Ellen D. Katz
Articles
An unprecedented number of noncompetitive or "safe" electoral districts operate in the United States today. Noncompetitive districts elect officials with more extreme political views and foster more polarized legislatures than do competitive districts. More fundamentally, they inhibit meaningful political participation. That is because participating in an election that is decided before it begins is an empty exercise. Voting in a competitive election is not, even though a single vote will virtually never decide the outcome. What a competitive election offers to each voter is the opportunity to be the coveted swing voter, the one whose support candidates most seek, the …
'Bush' V. 'Gore': What Was The Supreme Court Thinking?, Richard D. Friedman
'Bush' V. 'Gore': What Was The Supreme Court Thinking?, Richard D. Friedman
Articles
One of the most astonishing episodes in American political history ended last month with perhaps the most imperial decision ever by the United States Supreme Court. In one stroke, the Court exercised power that belonged to Congress, the legislature of Florida, Florida's courts and administrators, and, most importantly, the people of the state.
Trying To Make Peace With Bush V. Gore (Symposium: Bush V. Gore Issue 2001), Richard D. Friedman
Trying To Make Peace With Bush V. Gore (Symposium: Bush V. Gore Issue 2001), Richard D. Friedman
Articles
The Supreme Court's decision in Bush v. Gore, shutting down the recounts of Florida's vote in the 2000 presidential election and effectively awarding the election to George W. Bush, has struck many observers, including myself, as outrageous.' Decisions of the Supreme Court should be more than mere reflections of ideological or partisan preference thinly camouflaged behind legalistic language. It would therefore be pleasant to be able to believe that they are more than that. Accordingly, Judge Richard Posner's analysis,2 in which he defends the result reached by the Court-though not the path by which it got there-is particularly welcome. Though …
Some Modest Proposals On The Vice-Presidency, Richard D. Friedman
Some Modest Proposals On The Vice-Presidency, Richard D. Friedman
Articles
There are many good things in the Constitution, but the vice-presidency isn't one of them. In Part I of this essay, I will argue that there are three basic problems with the vice-presidency: the method of nomination, the method of election, and the office itself. That just about covers the waterfront.' If we had to do it all over again, we almost certainly would not" create the system we currently have. We cannot undo history, but we do have a very strong incentive to develop a better system of succession to the presidency. Whom we choose as vice-president is a …
Delegate Selection Reform And The Extension Of Law Into Politics, Joseph Vining
Delegate Selection Reform And The Extension Of Law Into Politics, Joseph Vining
Articles
The fact that the 1972 presidential election introduced the formalities and some of the ideals of law into the gestation of national political power has been overshadowed by revelations about other aspects of the election campaign. But it will not be long before power will have to be organized and generated again from apartment blocks, meeting halls, and coffee parties, and ultimately incarnated in another President. At some point hearing examiners for the National Democratic Party will appear again in various communities. Rules will be studied, records made, and appeals taken, all for the purpose of deliberately deciding who may …
Nonpopulation Factors Relevant To An Acceptable Standard For Apportionment, Jerold H. Israel
Nonpopulation Factors Relevant To An Acceptable Standard For Apportionment, Jerold H. Israel
Articles
Of the many problems left unanswered in Baker v. Carr,' the one that has received the most attention both from lower courts and commentators is that of prescribing a specific standard for determining what constitutes a denial of "equal protection" in legislative apportionment.2 The starting point universally accepted - indeed, probably required by Baker - for attacking this problem is the definition of apportionment equality in terms of mathematical measurement of the individual's "voting power."3 Perfect equality in apportionment is viewed as requiring that each election district contain an equal population, so that every individual's vote in his district will …
On Charting A Course Through The Mathematical Quagmire: The Future Of Baker V. Carr, Jerold H. Israel
On Charting A Course Through The Mathematical Quagmire: The Future Of Baker V. Carr, Jerold H. Israel
Articles
The Tennessee reapportionment decision, Baker v. Carr,' has been popularly characterized as one of the "very few judicial decisions which have fundamentally reshaped our constitutional system."'2 Newspaper and magazine commentators generally have predicted that the decision of last March is likely to "change the course of our history" by producing a drastic alteration in the balance of power on the state political scene.3 While this end may be desirable,4 any such estimate of the future impact of the Baker decision, at least insofar as its legal consequence is concerned,5 seems not only premature but somewhat exaggerated. The future significance of …
The Newberry Case, Ralph W. Aigler
The Newberry Case, Ralph W. Aigler
Articles
Senator Newberry of Michigan and sixteen others were convicted in the United States District Court on the charge that they "unlawfully and feloniously did conspire, combine, confederate, and agree together to commit the offense [in the Newberry indictment] on his part of wilfully violating the act of Congress approved June 25, 1910, as amended, by giving, contributing, expending, and using and by causing to be given, contributed, expended and used in procuring his nomination and election at said primary and general elections, a greater sum than the laws of Michigan permitted and above ten thousand dollars," etc. The Act of …
Power To Appoint To Office--Its Location And Limits, Floyd R. Mechem
Power To Appoint To Office--Its Location And Limits, Floyd R. Mechem
Articles
At no other time in the judicial history of this country, if the evidence of the reported cases is to be relied upon, have there been so many and so bitter contests over all of the questions growing out of the title to public offices, as during the last ten or twelve years. This is undoubtedly largely accounted for by the fact that within that period a large number of the states have put in operation radically changed methods of conducting elections, based upon or practically incorporating what is popularly known as the Australian ballot system.
Eligibility To Office--As Of What Time Determined, Floyd R. Mechem
Eligibility To Office--As Of What Time Determined, Floyd R. Mechem
Articles
Eligibility to office under our political system cannot be regarded as a natural right, and some rules or regulations are therefore obviously indispensable to determine what shall be the qualifications which shall be deemed necessary or sufficient. These rules are usually express and written ones, though in a few cases they have been deduced by inference from considerations of policy or propriety
How May Presidential Electors Be Appointed?, Bradley M. Thompson
How May Presidential Electors Be Appointed?, Bradley M. Thompson
Articles
For more than half a century presidential electors have been chosen upon a general ticket in all the states. This was not the uniform practice at first. Judge Cooley in the last number of the JOU11NAL makes it clear that at least four different methods were at first adopted, one of them, the "district system," being that selected by the last legislature of Michigan. Following Judge Cooley's article is one by Gen. B. M. Cutcheon attacking this system on two grounds: First, that it is in conflict with the Constitution of the United States; and, secondly, that it is mischievous …
The Method Of Electing The President, Thomas M. Cooley, Abram S. Hewitt
The Method Of Electing The President, Thomas M. Cooley, Abram S. Hewitt
Articles
Twice in the history of the United States the nation has been brought to the verge of civil war by difficulties growing out of presidential elections. And yet no system was ever devised with more care to preclude any reasonable complaint.