Law Commons^™

Evaluating Congress's Constitutional Basis To Abolish Felony Disenfranchisement, James E. Lauerman

Washington Law Review

In the past three years, members of Congress unsuccessfully introduced a series of federal voting rights legislation, most recently the Freedom to Vote Act. One goal of the legislation is to abolish felony disenfranchisement. Felony disenfranchisement is the practice of revoking a citizen’s right to vote due to a prior felony conviction. The Freedom to Vote Act aims to restore voting rights for every citizen who has completed their prison sentence. A ban on felony disenfranchisement would be historic, as the practice stretches back to ancient Greece and Rome. Moreover, the United States Supreme Court consistently upholds the practice by …

Let Us Not Be Intimidated: Past And Present Applications Of Section 11(B) Of The Voting Rights Act, Carly E. Zipper

Washington Law Review

As John Lewis said, “[the] vote is precious. Almost sacred. It is the most powerful non-violent tool we have to create a more perfect union.” The Voting Rights Act (VRA), likewise, is a powerful tool. This Comment seeks to empower voters and embolden their advocates to better use that tool with an improved understanding of its little-known protection against voter intimidation, section 11(b).

Although the term “voter intimidation” may connote armed confrontations at polling places, some forms of intimidation are much more subtle and insidious—dissuading voters from heading to the polls on election day rather than confronting them outright when …

The Meaning, History, And Importance Of The Elections Clause, Eliza Sweren-Becker, Michael Waldman

Washington Law Review

Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause’s original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules.

But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving …

Be Careful What You Wish For: Private Political Parties, Public Primaries, And State Constitutional Restrictions, Hugh D. Spitzer

Washington Law Review

Political parties always disliked the Progressive Era changes that pulled the entire electorate into nominating candidates. Why, after all, should non-party members participate in the affairs and choices of private organizations? Over the course of a century, Democrats, Republicans, and minor parties repeatedly mounted lawsuits to attack new primary laws, and they eventually prevailed on a key constitutional issue: the First Amendment right of association. But when political actors access the courts for strategic purposes, they can get caught in the vagaries of history and public attitudes, with outcomes they might not like. This Essay focuses on the history of …

Ineffective By Design: A Critique Of Campaign Finance Law Enforcement In The United States, Australia, And The United Kingdom, Kelly Ann Skahan

Washington International Law Journal

Though ostensibly tasked with enforcing their respective nations’ campaign finance laws, the Federal Election Commission (“FEC”), Australian Electoral Commission (“AEC”), and Electoral Commission (“EC”) are woefully unable to meaningfully address the evolving nature of campaigns or enforce existing regulations in the United States, Australia, and the United Kingdom, respectively. Attempts at enforcement are cut off at the knees by political infighting, half-hearted grants of independent authority, and a lack of institutional support. Conversely, the New York City Campaign Finance Board (“CFB”) is recognized as an example of meaningful enforcement and relative political independence. By implementing changes that translate the CFB’s …

Electoral Choices, Ethnic Accommodations, And The Consolidation Of Coalitions: Critiquing The Runoff Clause Of The Afghan Constitution, Mohammad Bashir Mobasher

Washington International Law Journal

Article sixty-one of the Afghan Constitution requires a candidate to win an absolute majority of votes to become the president. This constitutional rule comprises a runoff clause, which prescribes a second round of elections between the two front-runners should no candidate win over 50% of the votes in the first round. While this article agrees with the majority view of Afghan scholars and politicians who see the runoff clause as instrumental to developing trans-ethnic coalitions and governments, it distinguishes between the formation of alliances and their consolidation. Ultimately, this article posits that the runoff clause actually impedes the long-term success …

The Unwilling Donor, Jennifer Mueller

Washington Law Review

For nearly forty years, the Supreme Court has evaluated campaign finance restrictions by weighing the First Amendment burden they place on a donor eager to engage the political process against the government’s interest in avoiding corruption of that process. Most recently, in McCutcheon v. FEC, the Court struck down aggregate contribution limits, allowing donors to give—and candidates and parties to solicit—millions of dollars directly to candidates, parties, and political action committees. Yet what should have been a significant victory for big donors was greeted with dismay by many of the same. There is growing evidence that the story we …

The Other Side Of The Coin: The Fec's Move To Approve Crytocurrency's Use And Deny Its Viability, Juliya Ziskina

Washington Journal of Law, Technology & Arts

This Article examines the implications of the Federal Election Committee’s May 2014 advisory opinion on cryptocurrency’s viability within campaign finance regulation, and U.S. financial regulation more generally. Although the Commissioners sharply disagreed on whether Bitcoin is a cash or in-kind contribution, they voted unanimously to allow political committees to accept Bitcoin donations. Moreover, all the Commissioners agreed that Bitcoin donors must disclose their names, addresses, and occupations. While many view this decision as pushing Bitcoin and cryptocurrency further toward legitimacy, in actuality it undermines one of cryptocurrency’s distinct functionalities: pseudonymity. Paradoxically, while it approves the use of Bitcoin in campaign …

The Constitutional Structure Of Voting Rights Enforcement, Franita Tolson

Washington Law Review

Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments. In answering this question, this Article is the first to consider the effect of section 2 of the Fourteenth Amendment on the scope of Congress’s enforcement authority. Section 2 allows Congress to reduce the size of a state’s delegation in the House of Representatives if the state abridges the right to vote in state and federal elections for any reason, “except for participation in rebellion, or other crime.” This Article contends that section 2 influences the scope of congressional …

The Constitutional Structure Of Voting Rights Enforcement, Franita Tolson

Washington Law Review

Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments. In answering this question, this Article is the first to consider the effect of section 2 of the Fourteenth Amendment on the scope of Congress’s enforcement authority. Section 2 allows Congress to reduce the size of a state’s delegation in the House of Representatives if the state abridges the right to vote in state and federal elections for any reason, “except for participation in rebellion, or other crime.” This Article contends that section 2 influences the scope of congressional …

Reexamining Crawford: Poll Worker Error As A Burden On Voters, Lauren Watts

Washington Law Review

American elections are administered by poll workers—individuals who are recruited and trained by states and localities for the particular task of helping people vote on Election Day. Several layers of law govern poll workers, including federal constitutional law, federal statutory law, state constitutional law, state statutory law, and local law. Among these laws are voter photo identification laws, or voter ID laws. Nineteen states have passed voter ID laws in the last ten years. With some variation, these laws require a person to present photo identification before he or she is allowed to vote. In 2008, the United States Supreme …

Monitored Disclosure: A Way To Avoid Legislative Supremacy In Redistricting Litigation, Mark Tyson

Washington Law Review

The Speech or Debate Clause of the U.S. Constitution protects members of Congress from testifying about “legislative acts” or having “legislative acts” used against them as evidence. U.S. Supreme Court decisions delineating the scope of what constitutes a “legislative act” have an episodic feel and have failed to create a readily applicable test for new factual scenarios. One such scenario occurs when members of Congress communicate with state legislators regarding congressional redistricting. Courts must know how to handle instances where members of Congress assert legislative privilege in the redistricting context, and specifically when members of Congress assert the privilege in …

Disproportionate Disenfranchisement Of Aboriginal Prisoners: A Conflict Of Law That Australia Should Address, Megan A. Winder

Washington International Law Journal

In 2006, Australia’s Parliament banned all prisoners from voting. A year later, Vickie Lee Roach, a female prisoner of Aboriginal descent, challenged the blanket ban promulgated in the 2006 amendment to the Commonwealth Electoral Act of 1918 (“Electoral Act”). Vickie won, but in a limited way. The High Court found an implied right to vote in the Australian Constitution, but held that Parliament could limit such voting, as it did in the Electoral and Referendum Amendment of 2004 (“E & R Amendment”), disenfranchising any prisoner serving three or more years in jail. This Comment argues that the E & R …

Granting Permanent Resident Aliens The Right To Vote In Local Government: The New Komeitō Continues To Promote Alien Suffrage In Japan, Miles E. Hawks

Washington International Law Journal

Throughout the world, the dominant suffrage model has been voting rights based on citizenship. However, the trend of globalization, the increase of cross-border migration, and the advent of supranational institutions such as the European Union have prompted many countries to reconsider the relationship between nationality and voting rights. This has resulted in a growing trend, beginning in Europe and spreading most recently to South Korea, of adopting a notion of suffrage based on residency and community rather than citizenship. Japan is currently considering legislation, known as the “Local Suffrage Bill,” which would allow permanent resident aliens (“PRAs”) to vote in …

The Not-So-Secret Ballot: How Washington Fails To Provide A Secret Vote For Impaired Voters As Required By The Washington State Constitution, Eric Van Hagen

Washington Law Review

Secrecy in voting ensures that elections represent the true will of the people by permitting a voter to freely express his or her convictions without fear of even the most subtle form of influence, ridicule, intimidation, corruption, or coercion. Article VI, section 6 of the Washington State Constitution protects this secrecy by requiring the legislature to provide every voter with a method of voting that will secure absolute secrecy in preparing and casting his or her ballot. To that end, Washington election law requires that new technology be implemented by January 1, 2006 to provide visually impaired voters with a …

Regulating The Mother's Milk Of Politics: Why Washington's Campaign Finance Law Constitutionally Prohibits State Parties From Spending Soft Money On Issue Ads, Scott Holleman

Washington Law Review

The possibility that elected officials may exchange their votes on pending legislation for donations to help their re-election campaigns poses a serious threat to democratic government. To alleviate this risk, governments at the state and national levels regulate how politicians finance their campaigns. However, these regulatory efforts have been challenged on First Amendment grounds. In Buckley v. Valeo, the United States Supreme Court upheld certain campaign contribution limits, while declaring certain expenditure limits unconstitutional. The Washington State Supreme Court relied on the Buckley opinion in Washington State Republican Party v. Washington Public Disclosure Commission, when it ruled that …

Beggars Can't Be Voters: Why Washington's Felon Re-Enfranchisement Law Violates The Equal Protection Clause, Jill E. Simmons

Washington Law Review

The Washington State Constitution denies persons convicted of felonies the right to vote until their civil rights have been restored. Civil rights are restored when offenders complete all aspects of their sentence, including paying the legal-financial obligations imposed at sentencing. Payment of legal-financial obligations presents a significant hurdle to offenders trying to reclaim their right to vote. According to the Washington Department of Corrections, roughly 46,500 offenders in Washington have not had their right to vote restored solely because of unpaid legal-financial obligations. The right to vote is a fundamental right secured by the United States Constitution, yet the United …

Political Apportioning Is Not A Zero-Sum Game: The Constitutional Necessity Of Apportioning Districts To Be Equal In Terms Of Both Total Population And Citizen Voter-Age Population, Timothy Mark Mitrovich

Washington Law Review

After each census, state legislatures must redraw voting districts for state and local elections. Each state legislature must perform this redistricting in a way that protects two important citizen rights. First, each citizen's vote must carry equal weight. Second, each citizen must have equal access to his or her representative. To this end, the U.S. Supreme Court has held that all state and local electoral apportionments must result in districts with equal populations. In Reynolds v. Sims, the Court held that the Fourteenth Amendment requires all state and local electoral apportionments to result in districts with equal populations. However, …

Reducing Malapportionment In Japan's Electoral Districts: The Supreme Court Must Act, William Somers Bailey

Washington International Law Journal

Japan's Constitution does not expressly mandate periodic census and reapportionment of electoral districts. The Election Law only suggests reapportionment. Consequently, rapid population shifts in postwar Japan created endemic voter imbalances. The Japanese Supreme Court has made some attempts to prod the national parliament to take ameliorative action, but the result has always been "too little, too late." Nevertheless, the evidence shows that the parliament does heed the Court's decisions. This Comment urges the Court to tighten the three to one ratio it has developed for allowable voter imbalances to two to one or better, and to abandon doctrines like the …

Participation Without Representation: The Meaning Of The Right To Vote After Presley V. Etowah County Commission, 112 S. Ct. 820 (1992), Nancy C. Zaragoza

Washington Law Review

Section 5 of the Voting Rights Act requires governing entities implementing any new practices "with respect to voting" to first permit such changes to be scrutinized for discriminatory effects. In Presley v. Etowah County Commission, the United States Supreme Court held that a county government's restructuring of power among commissioners did not require scrutiny because the restructuring did not constitute a change with respect to voting. This Note examines Presley and concludes that the Court's decision ignored precedent, created an unreasonable test and misapplied the test. To ensure effective enforcement of the Voting Rights Act, the Court should adopt a …

Direct Election Of The President Without A Constitutional Amendment: A Call For State Action, Dale Read, Jr.

Washington Law Review

This article will suggest that this focus on the constitutional amendment process for changing the electoral college has been misdirected. The states, without federal action, possess the capability of implementing the direct popular election of the President. This article will examine the background of electoral college reform and will propose a "National Vote Plan" to achieve direct popular presidential election independently of the constitutional amendment process.

Election Law—Initiative 276—The Constitutionality And Feasibility Of Political Campaign Expenditure Limitations In Washington—Bare V. Gorton, 84 Wn. 2d 380, 526 P.2d 379 (1974), Parry Grover

Washington Law Review

Until it was declared unconstitutional by the Washington Supreme Court in Bare v. Gorton, Section 14 of Initiative 276 further regulated the political process by setting campaign expenditure limits for candidates and for organizations supporting or opposing candidates or ballot propositions." This note will focus upon the vagueness and first amendment problems raised by campaign expenditure limitations generally and the bases upon which these limitations may be constitutionally justified. The discussion will be directed primarily at Initiative 276 and the prospects for future expenditure limitation legislation in Washington; criteria for drafting a new expenditure limitation law will be suggested.

Constitutional Law—State May Not Require Filing Fee From Indigent Candidate As Prerequisite To Ballot Placement—Lubin V. Panish, 415 U.S. 709 (1974), Mary Mcinnis Schuman

Washington Law Review

Petitioner Lubin desired to be placed on the ballot in the primary election for nomination to a position on the Los Angeles County Board of Supervisors. He was denied the papers requisite to ballot placement, however, because he was unable to pay the filing fee, a mandatory precondition to ballot placement in California. Although California statutes permit write-in votes, they are not counted unless the write-in candidate pays the filing fee prior to the election. Seeking invalidation of the statutes, Petitioner filed suit in the Los Angeles County Superior Court, alleging that he was a serious candidate who did not …

On Criteria For Redistricting, Robert L. Morrill

Washington Law Review

The one month effort to reapportion the legislative and congressional districts of the State of Washington did not provide an extensive opportunity to probe either the logical human bases for or methods of reapportionment. However, on the basis of the redistricting experience and subsequent analysis and reflection, an appraisal of the generally accepted criteria for reapportionment is appropriate

Judicial Sanctions And Legislative Redistricting In Washington State, W. Basil Mcdermott

Washington Law Review

This case study of the impact of Baker v. Carr on the State of Washington attempts to discern the nature of the role of the judiciary in the implementation of new reapportionment rules. Redistricting is usually thought of as a highly political area, outside the normal involvement of courts. Now that federal judges are under a mandate to consider the problems in this area, it is important to understand the capacity of the judicial system to discharge its role. By exercising their power with restraint, the federal judges in Washington sought to influence the political system to do its duty …

Constitutional Law—Voting Rights—State English Literacy Requirements Upheld.—Mexican-American Federation-Washington State V. Naff, 299 F.Supp. 587 (E.D. Wash. 1969), Anon

Washington Law Review

The four individual plaintiffs, who were participating in a voter registration project initiated by the plaintiff Federation, appeared on separate occasions in the offices of the deputy voting registrars for the towns of Zillah and Toppenish, Washington, intending to register to vote. Each time, the applicants were accompanied by an interpreter associated with the Federation, who informed the registration officers that the applicants wished to register to vote and that he would act as Spanish-English interpreter. But the registration officers insisted that the applicants present their requests in person and in English, and refused to register them when it became …

Elections, Alfred Harsch

Washington Law Review

Covers primary and general elections for judges.

The Washington Subversive Activities Act: Its Restriction On Access To The Election Process, Gordon Jaynes

Washington Law Review

Since the time of the Alien and Sedition Laws of 1798, the national and state governments have sporadically enacted legislation intended to inhibit and punish activity subversive to existing government. Since Jefferson's time, such legislation has had both impassioned advocates and embittered opponents. It is the product of eras of political tension. Inherent in these laws is the danger that zealousness in the preservation of the integrity of government may violate political rights guaranteed by our constitutions. An examination of their constitutionality need imply no judgment regarding the political wisdom of their enactment nor the manner of their enforcement, and …