Law Commons^™

Brief Of Amici Curiae Michael L. Rosin, David G. Post, David F. Forte, Michael Stokes Paulsen, And Sotirios Barber In Support Of Presidential Electors, David F. Forte, Michael L. Rosin, David G. Post, Michael Stokes Paulsen, Sotirios Barber

Law Faculty Briefs and Court Documents

The Framers of the Constitution crafted the Electoral College to be an independent institution with the responsibility of selecting the President and Vice-President. Therefore, they intended each elector to exercise independent judgment in deciding whom to vote for. A state cannot revise the Constitution unilaterally by reducing the elector to a ministerial agent who must vote in a particular way or face a sanction. The question of each elector’s moral or political obligation is not before the Court. Nor is the desirability of the current electoral system. Rather, this case turns on what the Constitution allows, and what it prohibits. …

Law Library Blog (January 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Prophylactic Redistricting? Congress's Section 5 Power And The New Equal Protection Right To Vote, Michael T. Morley

Scholarly Publications

No abstract provided.

The New Elections Clause, Michael T. Morley

Scholarly Publications

No abstract provided.

State Judges And The Right To Vote, Joshua A. Douglas

Law Faculty Scholarly Articles

State courts are paramount in defining the constitutional right to vote. This primacy of state courts exists in part because the right to vote is a state-based right protected under state constitutions. In addition, election administration is largely state-driven, with states regulating most of the rules for casting and counting ballots. State law thus guarantees—and state courts interpret—the voting rights that we cherish so much as a society. State courts that issue rulings broadly defining the constitutional right to vote best protect the most fundamental right in our democracy; state decisions that constrain voting to a narrower scope do harm …

In Defense Of Lowering The Voting Age, Joshua A. Douglas

Law Faculty Scholarly Articles

This Essay outlines the various policy arguments in favor of lowering the voting age to sixteen. Part I presents a very brief history of the voting age in U.S. elections. It notes that setting the voting age at eighteen is, in many ways, a historical accident, so lowering the voting age for local elections does not cut against historical norms. Part II explains that there are no constitutional barriers to local jurisdictions lowering the voting age for their own elections. Part III highlights the benefits to democracy and representation that lowering the voting age will engender. Turning eighteen represents a …

A “Checklist Manifesto” For Election Day: How To Prevent Mistakes At The Polls, Joshua A. Douglas

Law Faculty Scholarly Articles

Mistakes happen—especially at the polls on Election Day. To fix this complex problem inherent in election administration, this Article proposes the use of simple checklists. Errors occur in every election, yet many of them are avoidable. Poll workers should have easy-to-use tools to help them on Election Day as they handle throngs of voters. Checklists can assist poll workers in pausing during a complex process to avoid errors. This is a simple idea with a big payoff: fewer lost votes, shorter lines at the polls, a reduction in post-election litigation, and smoother election administration. Further, unlike many other suggested election …

Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher

Scholarly Works

In this article, Professor Orentlicher examines the Constitution's design for the executive branch. He argues that by opting for a single executive rather than a multi-person executive, the Constitution causes two serious problems-it fuels the high levels of partisan polarization that we see today, and it increases the likelihood of misguided presidential decision making. Drawing on the experience in other countries with executive power shared by multiple officials, he proposes a bipartisan executive.

The Intratextual Independent "Legislature" And The Elections Clause, Michael T. Morley

Scholarly Publications

Many states have delegated substantial authority to regulate federal elections to entities other than their institutional legislatures, such as independent redistricting commissions empowered to determine the boundaries of congressional districts. Article I’s Elections Clause and Article II’s Presidential Electors Clause, however, confer authority to regulate federal elections specifically upon State “legislatures,” rather than granting it to States as a whole. An intratextual analysis of the Constitution reveals that the term “legislature” is best understood as referring solely to the entity within each state comprised of representatives that has the general authority to pass laws. Thus, state constitutional provisions or laws …

A Case For The Electoral College And For Its Faithless Elector, Stephen M. Sheppard

Faculty Articles

Every four years, the cry goes up to destroy the Electoral College. That cry is especially loud in years when a candidate is elected president who receives a minority of the votes. The election of a "minority president" happened with the election of 2000, but it had happened before. The Electoral College has elected three presidents whom a majority of the voters voted against: Rutherford B. Hayes in 1876, Benjamin Harrison in 1888, and George W. Bush in 2000. (A fourth president was also elected with a minority of the popular vote—John Quincy Adams in 1824—through that election was by …

Rethinking The Right To Vote Under State Constitutions, Michael T. Morley

Scholarly Publications

No abstract provided.

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.

Researching Initiatives And Referendums: A Guide For Florida, Elizabeth Outler

UF Law Faculty Publications

In Florida, direct democracy at the state level consists entirely of the initiative method of amending the State constitution. This constitutional provision was partly a response to the State’s history of obstacles to affording equitable legislative representation to all its citizens, a struggle with roots dating back to the Reconstruction era. The State constitution, governing statutes and regulations, and the Division of Elections Web site serve as the primary sources of information and guidance for those interested in the process of amending the State constitution by citizen-sponsored initiative.

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 …

Congressional Power Over Presidential Elections: Lessons From The Past And Reforms For The Future, Dan T. Coenen, Edward J. Larson

Scholarly Works

Presidential election controversies are nothing new. They have plagued our republic since 1801, when the fourth election for the office ended in a muddle that nearly deprived the rightful winner of the presidency. Each controversy has led to calls for reform. In every instance, the cryptic and troublesome constitutional text has hampered congressional efforts to correct the problems. Simply stated, the Constitution offers little explicit guidance on when and how Congress can regulate the selection of the President. In this Article, we explore the implications of this textual deficiency, looking both at what Congress has done in the past and …

'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.

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 …

Legislative Reapportionment—The Kentucky Legal Context, Robert G. Lawson

Law Faculty Scholarly Articles

In its continuing role as guardian of citizens’ constitutional rights, the Supreme Court in Baker v. Carr unlocked widespread concern for equal representation in state legislatures. Having been suppressed for two decades in which an amazing shift of population has occurred, the question of reapportionment and what to do about it had become one of great importance. In November, 1960, apportionments of 30 state legislatures had been challenged in state and federal courts. In addition, ten cases of an electoral character are presently on the docket of the Supreme Court of the United States.

Apart from the legal implications and …

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 …

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

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.