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Articles 1 - 27 of 27
Full-Text Articles in Law
Voting As Exclusion, Ava Ayers
Voting As Exclusion, Ava Ayers
Fordham Law Review
This Essay considers two prevalent narratives about voting. In one narrative, voting expresses the civic virtue of the voter. In another, voting is an expression of inclusion in our political community’s circle of membership. I argue that although both narratives are true, and important, there is a third narrative that shadows them both. In this third narrative, voting affirms the exclusion of millions of people from our political community. The stories we tell about voting are incomplete and, sometimes, harmful.
The Illiberalization Of American Election Law: A Study In Democratic Deconsolidation, James A. Gardner
The Illiberalization Of American Election Law: A Study In Democratic Deconsolidation, James A. Gardner
Fordham Law Review
For many years, the dominant view among American election law scholars has been that the U.S. Supreme Court’s constitutional jurisprudence of democratic practice got off to a promising start during the mid-twentieth century but has since then slowly deteriorated into incoherence. In light of the United States’ recent turn toward populist authoritarianism, that view needs to be substantially revised. With the benefit of hindsight, it now appears that the Supreme Court has functioned, in its management of the constitutional jurisprudence of democracy, as a vector of infection—a kind of super-spreader of populist authoritarianism. There is, sadly, nothing unusual these days …
Election Observation Post-2020, Rebecca Green
Election Observation Post-2020, Rebecca Green
Fordham Law Review
The United States is in the midst of a crisis in confidence in elections, despite the many process protections baked into every stage of election administration. Part of the problem is that few Americans know just how rigorous the protections in place are, and most Americans have no concept of how modern elections are run. Election observation statutes are intended to provide a window for members of the public to learn about and oversee the process and to satisfy themselves that elections are fair and that outcomes are reliable. Yet in 2020, in part due to unforeseen pandemic conditions, election …
Reducing Election Litigation, Derek T. Muller
Reducing Election Litigation, Derek T. Muller
Fordham Law Review
Which candidate’s name should be listed first on a ballot? Should inactive voters’ names appear printed in polling place books? Should elections be conducted exclusively by mail? Should online voter registration be available to prospective voters? When voters sign a petition to help a candidate appear on the ballot, must the petition’s circulator reside in the state? These are the questions that ordinary election administration rules answer. There might be better or worse rules. These rules might advance one set of benefits in exchange for another set of costs. They could benefit one candidate or group over another. Like every …
The Independent State Legislature Doctrine, Michael T. Morley
The Independent State Legislature Doctrine, Michael T. Morley
Fordham Law Review
The U.S. Constitution grants authority to both regulate congressional elections and determine the manner in which a state chooses its presidential electors specifically to the legislature of each state, rather than to the state as an entity. The independent state legislature doctrine teaches that, because a legislature derives its power over federal elections directly from the Constitution in this manner, that authority differs in certain important respects from the legislature’s general police powers that it exercises under the state constitution. Although the doctrine was applied on several occasions in the nineteenth century, it largely fell into desuetude in the years …
Reforms For Presidential Candidate Death And Inability: From The Conventions To Inauguration Day, John Rogan
Reforms For Presidential Candidate Death And Inability: From The Conventions To Inauguration Day, John Rogan
Fordham Law Review
The 2020 presidential election involved several significant threats to the health and safety of the candidates. But dangers to presidential candidates and presidents-elect have been present before. Despite previous candidate vacancies and near misses, the procedures for how to address many of these contingencies have shortcomings. Some scenarios are left unaddressed. The policies for other situations might be difficult to use or could result in undemocratic outcomes. This Article discusses possible reforms for addressing disability or death of presidential candidates from the time they are nominated at their political parties’ conventions to when they are sworn into office on Inauguration …
How States Can Avoid Overcrowded Ballots But Still Protect Voter Choice, Richard Winger
How States Can Avoid Overcrowded Ballots But Still Protect Voter Choice, Richard Winger
Fordham Law Review
Since the beginning of government-printed ballots for federal and state offices in 1889, state legislatures have been wrestling with the problem of how many signatures should be required for independent candidates and new political parties to get on the ballot. Laws on this subject are very volatile; there is not a single instance in United States history in which applicable state laws were the same for two consecutive presidential elections. The volatility increased in 1968, when the U.S. Supreme Court ruled that overly strict ballot access laws for new parties and independent candidates violatetheU.S.Constitution. Sincethen,every state has been sued by …
Compulsory Voting And Black Citizenship, Ekow N. Yankah
Compulsory Voting And Black Citizenship, Ekow N. Yankah
Fordham Law Review
Protesting Black votes is part of our history of rejecting Black Americans as legitimate wielders of political power and contesting the fullness of Black citizenship. Obviously, hostility toward viewing Black Americans as deserving of the rights owed to other Americans is present in nearly every aspect of American life. But, among the oldest and most contentious hostilities—from the Civil War to Reconstruction to the Civil Rights Movement to contemporary voter suppression efforts—has been the resistance against Black votes. Any opportunity to quell this locus of racial animus calls for urgent address. Particularly, at this moment, when long-standing prophylactic measures such …
Free And Fair: Judicial Intervention In Elections Beyond The Purcell Principle And Anderson-Burdick Balancing, Danika Elizabeth Watson
Free And Fair: Judicial Intervention In Elections Beyond The Purcell Principle And Anderson-Burdick Balancing, Danika Elizabeth Watson
Fordham Law Review
The United States’s politically charged 2020 federal election, conducted in the midst of a global pandemic, seismically shook the fault lines of state and local elections administration nationwide. Voters, candidates, parties, states, and political campaigns brought hundreds of claims to the courts, seeking judicial intervention to protect equity in their voting rights. The 2020 pandemic election cases demonstrated that Equal Protection claims relying on the Anderson-Burdick balancing test are both overly reliant on judicial discretion and highly vulnerable to invalidation under the Purcell principle. This Note examines the equal protection challenges raised in courts throughout the country in 2020 to …
Excessive Judicialization, Extralegal Interventions, And Violent Insurrection: A Snapshot Of Our 59th Presidential Election, Jerry H. Goldfeder
Excessive Judicialization, Extralegal Interventions, And Violent Insurrection: A Snapshot Of Our 59th Presidential Election, Jerry H. Goldfeder
Fordham Law Review
The Symposium included in this issue of the Fordham Law Review provides scholars and lawyers with the opportunity to think about some of the most provocative issues related to the way we elect our chief executive. When first conceived, this Symposium was meant to expand and elevate the discourse. Many of the participating authors have thought and written about these matters for years. It was our hope that, after fifty-nine presidential elections, we could shape the debate—and perhaps reform the law—for our next presidential election, our country’s sixtieth. Little did we realize at the inception of this project that the …
The Electoral College: Time For A Change?, John D. Feerick
The Electoral College: Time For A Change?, John D. Feerick
Fordham Law Review
Fifty-three years ago, I wrote an article for the Fordham Law Review advocating for a popular vote for president. My experience serving as staff advisor to an American Bar Association (ABA) commission on Electoral College reform influenced my views. The House of Delegates authorized the commission in February 1966. A year later, after study and consideration, the ABA recommended such a reform, as did Senator Birch Bayh of Indiana, then serving as chair of the Senate Judiciary Committee’s subcommittee on constitutional amendments. This Article returns to the subject of reform by examining in Part I the elections of this century …
Are Two Minorities Equal To One?: Minority Coalition Groups And Section 2 Of The Voting Rights Act, Kevin Sette
Are Two Minorities Equal To One?: Minority Coalition Groups And Section 2 Of The Voting Rights Act, Kevin Sette
Fordham Law Review
Following Jim Crow, vote dilution is the second-generation barrier standing between minority voters and the polls. Section 2 of the Voting Rights Act of 1965 (VRA) protects racial and language minorities from these vote dilution practices. To sustain a section 2 claim, a protected “class of citizens” must satisfy the criteria laid out by the U.S. Supreme Court in Thornburg v. Gingles. First, the class must constitute the majority of a hypothetical single-member voting district. Second, the class must be politically cohesive. Third, the minority class’s preferred candidate must be defeated by a white majority voting bloc. What the …
Faithless Electors: Keeping The Ties That Bind, Scott Eckl
Faithless Electors: Keeping The Ties That Bind, Scott Eckl
Fordham Law Review
Every four years, the United States chooses a president and vice president. Millions of Americans exercise the right to vote, believing that they are voting for the candidates of their choice. In actuality, 538 relatively unknown party insiders known as electors officially choose the president a month later in fifty-one obscure meetings. Most of the time, these electors mirror the popular votes. However, whether these electors are required to do so and whether the states can enforce laws requiring them to do so are open questions. The Tenth Circuit recently declared statutes that bind electors unconstitutional. A few months before …
The “Whip Hand”: Congress’S Elections Clause Power As The Last Hope For Redistricting Reform After Rucho, Kevin Wender
The “Whip Hand”: Congress’S Elections Clause Power As The Last Hope For Redistricting Reform After Rucho, Kevin Wender
Fordham Law Review
Redistricting activists have long argued that partisan gerrymandering poses a fundamental threat to American democracy. These concerns have become particularly acute as increasingly sophisticated technologies have enabled legislators to draw highly gerrymandered maps that powerfully entrench partisan advantage. Despite these concerns, the U.S. Supreme Court, in the 2019 case of Rucho v. Common Cause, declared partisan gerrymandering to be a political issue outside the purview of the federal courts. The decision dealt a major blow to redistricting activists who, for over fifty years, had hoped that the Court would intervene to combat the drawing of electoral districts for partisan …
State Courts, The Right To Vote, And The Democracy Canon, Rebecca Guthrie
State Courts, The Right To Vote, And The Democracy Canon, Rebecca Guthrie
Fordham Law Review
Entire elections can be determined by the way a state judge chooses to interpret an election statute. And yet, there has been little scholarly attention on how judges construe statutes regulating elections at the state level. This Note begins to redress that lack of attention by undertaking an in-depth analysis of one interpretive tool historically invoked by state courts. The “Democracy Canon” is a substantive canon urging courts to liberally construe election statutes in favor of voter enfranchisement. By conducting a review of both historical and modern references to the Democracy Canon by state courts, this Note argues that courts …
Election Law And White Identity Politics, Joshua S. Sellers
Election Law And White Identity Politics, Joshua S. Sellers
Fordham Law Review
The role of race in American politics looms large in several election law doctrines. Regrettably, though, these doctrines’ analyses of race, racial identity, and the relationships between race and politics often lack sophistication, historical context, or foresight. The political status quo is treated as race-neutral, when in fact it is anything but. Specifically, the doctrines rely upon sanguine theories of democracy uncorrupted by white identity–based political calculations, while in fact such calculations, made on the part of both voters and political parties, are pervasive. In this Article, I appraise the doctrine pertaining to majority-minority voting districts, racial gerrymandering doctrine, the …
Third-Party And Independent Presidential Candidates: The Need For A Runoff Mechanism, Edward B. Foley
Third-Party And Independent Presidential Candidates: The Need For A Runoff Mechanism, Edward B. Foley
Fordham Law Review
Consider what 2016 might have looked like if this better electoral system had been in place. Bloomberg then could have entered the race without risking being a spoiler. In a three-way race—Bloomberg, Clinton, and Trump—Bloomberg might have fizzled out, leaving a two-way race between Clinton and Trump. Since that is essentially how the election ended up anyway, the country would have been no worse off for having had a chance to consider Bloomberg as an alternative. But suppose, however, with Trump’s candidacy spinning out of control in a series of unacceptable comments (as it appeared to do in early August),11 …
Election Law And The Presidency: An Introduction And Overview, Jerry H. Goldfeder
Election Law And The Presidency: An Introduction And Overview, Jerry H. Goldfeder
Fordham Law Review
Americans now fully appreciate that presidential candidates are vying for a majority of the Electoral College votes, rather than the individual votes of constituents. Modern campaigns are organized around this goal, and commentators are focused on this reality. As a result, there has been an increased cry to reform the electoral process. After all, if every other public official in the land is elected by receiving more votes than their competitors, why should the President of the United States be elected in this apparently undemocratic fashion? The process appears even more unusual in that electors are chosen pursuant to state …
Ramshackle Federalism: America’S Archaic And Dysfunctional Presidential Election System, Anthony J. Gaughan
Ramshackle Federalism: America’S Archaic And Dysfunctional Presidential Election System, Anthony J. Gaughan
Fordham Law Review
Accordingly, this Article proposes five sensible and achievable reforms to modernize the presidential election system. Each requires Congress and the federal government to play a much more proactive role in the presidential election system. The Constitution may be founded on federalist principles, but excessive decentralization is not serving us well in presidential election administration. In an age of tumultuous and accelerating change, the presidential election system must be modernized to meet the needs of twenty-first century America.
Rethinking Presidential Eligibility, Eugene D. Mazo
Rethinking Presidential Eligibility, Eugene D. Mazo
Fordham Law Review
Many aspiring American Presidents have had their candidacies challenged for failing to meet the Constitution’s eligibility requirements. Although none of these challenges have ever been successful, they have sapped campaigns of valuable resources and posed a threat to several ambitious men. This Article examines several notable presidential eligibility challenges and explains why they have often been unsuccessful. The literature on presidential eligibility traditionally has focused on the Eligibility Clause, which enumerates the age, residency, and citizenship requirements that a President must satisfy before taking office. By contrast, very little of it examines how a challenge to one’s candidacy impacts a …
Reforming The Contested Convention: Rethinking The Presidential Nomination Process, Michael T. Morley
Reforming The Contested Convention: Rethinking The Presidential Nomination Process, Michael T. Morley
Fordham Law Review
The presidential nomination process could be substantially improved through a few minor tweaks that would reduce unnecessary uncertainty, bolster its democratic underpinnings, and improve the connections among its various components. First, certain fundamental rules governing national conventions should be determined well in advance of the presidential nominating process, before any primaries or caucuses are held or delegates selected, and not be subject to change or suspension at the convention itself. Second, parties should enhance the democratic moorings of their national conventions by requiring presidential candidates to win a greater number of presidential preference votes to be placed into nomination. Third, …
“Natural Born” Disputes In The 2016 Presidential Election, Derek T. Muller
“Natural Born” Disputes In The 2016 Presidential Election, Derek T. Muller
Fordham Law Review
The 2016 presidential election brought forth new disputes concerning the definition of “natural born Citizen.” The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Unlike challenges to President Barack Obama’s eligibility, which largely turned on conspiratorial facts, challenges to Cruz’s eligibility turned principally on the law and garnered more serious attention concerning a somewhat cryptic constitutional clause. Understandably, much attention focused on the definition of “natural born citizen” and whether candidates like Cruz qualified. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling …
Does The Constitution Provide More Ballot Access Protection For Presidential Elections Than For U.S. House Elections?, Richard Winger
Does The Constitution Provide More Ballot Access Protection For Presidential Elections Than For U.S. House Elections?, Richard Winger
Fordham Law Review
Both the U.S. Constitution and The Federalist Papers suggest that voters ought to have more freedom to vote for the candidate of their choice for the U.S. House of Representatives than they do for the President or the U.S. Senate. Yet, strangely, for the last thirty-three years, the U.S. Supreme Court and lower courts have ruled that the Constitution gives voters more freedom to vote for the candidate of their choice in presidential elections than in congressional elections. Also, state legislatures, which have been writing ballot access laws since 1888, have passed laws that make it easier for minor-party and …
Time To End Presidential Caucuses, Sean J. Wright
Time To End Presidential Caucuses, Sean J. Wright
Fordham Law Review
Following the 2016 election cycle, there will be a great opportunity to implement reform. A major change should be to move away from presidential caucuses. They persist with, in the words of John Oliver, “complex, opaque rules.” These complex rules, which include participating in person for over an hour, negatively impacts participation in the electoral process. For example, in 2012, “participation rates in the Republican Party’s caucuses averaged 3 percent.” 3 percent. Compellingly, PolitiFact has observed that “[c]aucuses and delegate math can be incredibly confusing, and the arcane party structures don’t reflect how most people assume presidential selection works.” Yet, …
Beyond Citizens United, Nicholas Almendares, Catherine Hafer
Beyond Citizens United, Nicholas Almendares, Catherine Hafer
Fordham Law Review
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 …
When “Testing The Waters” Tests The Limits Of Coordination Restrictions: Revising Fec Regulations To Limit Pre-Candidacy Coordination, Marc E. Klepner
When “Testing The Waters” Tests The Limits Of Coordination Restrictions: Revising Fec Regulations To Limit Pre-Candidacy Coordination, Marc E. Klepner
Fordham Law Review
During the preliminary stages of the 2016 presidential election, many prospective candidates took an active role in the Super PACs that would eventually support them after they became candidates. The regulatory system in place provides clear restrictions on Super PACs’ abilities to coordinate with candidates; however, what is less clear is whether such regulations restrict the behavior of individuals during pre-candidacy, known under Federal Election Commission (FEC) regulations as the “testing-the-waters” phase. This Note gives an overview of the laws and regulations governing Super PACs, as well as the regulations and FEC guidance concerning when an individual becomes a candidate. …
Voter Primacy, Sarah C. Haan
Voter Primacy, Sarah C. Haan
Fordham Law Review
This Article argues that Citizens United v. FEC expanded the audience for campaign finance disclosure to include a group that had never before been held relevant to campaign finance disclosure—corporate shareholders—and explores the constitutional, policy, and political consequences of this change. In part IV of Citizens United, the U.S. Supreme Court departed from more than thirty years of campaign finance disclosure analysis to treat corporate shareholders as a target audience for corporate electoral spending disclosure, holding that the governmental interest advanced by campaign finance disclosure laws includes an interest in helping corporate shareholders “determine whether their corporation’s political speech advances …