Election Law Commons^™

Faithless Electors And The National Popular Vote Interstate Compact After Chiafalo V. Washington, Coy Westbrook

St. Mary's Law Journal

In conclusion, the opinion of the Court in Chiafalo sets a dangerous precedent. The Court gave the states the power to control and to remove electors who failed to cast their votes in accordance with the candidate who won their state’s electoral votes. However, with the growth of the National Popular Vote now in sixteen jurisdictions, there are questions as to whether the Supreme Court, when faced with a challenge to this interstate compact, would hold that the Compact was in violation of the Constitution. Additionally, with the possibility that the NPVIC may violate state constitutions, there will be rigorous …

Oral Argument In Moore V. Harper And The Perils Of Finding “Compromise” On The Independent State Legislature Theory, Katherine A. Shaw

Online Publications

The Supreme Court’s cert grant last June in Moore v. Harper was an ominous note on which to end an explosive term. The grant seemed to broadcast an openness to embracing what’s known as the “independent state legislature theory,” or ISLT. It is a once-fringe idea that the U.S. Constitution, and in particular Article I’s “elections clause,” grants to state legislatures alone, and withholds from other state entities (think: courts and constitutions), the power to regulate elections for federal office.

Algorithmic Elections, Sarah M.L. Bender

Michigan Law Review

Artificial intelligence (AI) has entered election administration. Across the country, election officials are beginning to use AI systems to purge voter records, verify mail-in ballots, and draw district lines. Already, these technologies are having a profound effect on voting rights and democratic processes. However, they have received relatively little attention from AI experts, advocates, and policymakers. Scholars have sounded the alarm on a variety of “algorithmic harms” resulting from AI’s use in the criminal justice system, employment, healthcare, and other civil rights domains. Many of these same algorithmic harms manifest in elections and voting but have been underexplored and remain …

When The Dust Has Settled: Fallout From The 2020 Presidential Election And S.B. 202 Placed Georgia’S Election Code In The Nation’S Crosshairs, William L. Wheeler

Mercer Law Review

Long regarded as a “safe” red territory, Georgia was thrust into the center of a national debate on federal and state elections when President Joe Biden flipped the state blue in the 2020 presidential election. In the wee hours of the morning on November 4, 2020, as the final votes were tallied and the electorate results became clear, the Peach State became the ignition point for a fiery, and often hyper-partisan, national debate over federal elections and how states conduct such contests. Due in part to the contrived rhetoric espoused by acolytes of the “Make America Great Again” (MAGA) party, …

American Voter Turnout: The Influence Of Education Levels On Voter Participation, Jack Thomas Bunzel-Hardie

Student Scholar Symposium Abstracts and Posters

This study is intended to explore the relevant relationship between mistrust in government officials and voter turnout. Within a research article such as this, it is important to distinguish the dependent and independent factors from one another so as not to get them confused. This article identifies the growing sense of mistrust that many Americans feel towards their government officials as the independent factor while examining the relationship that voter turnout has with that growing fear, therefore making that the dependent variable. While this issue has been studied in the past there have been many new events taking place and …

One Person, How Many Votes? Measuring Prison Malapportionment, Ian Bollag-Miller

Voting Rights and Democracy Forum

“One-person, one-vote” is a fundamental principle of democracy. In practice, however, vote distribution among population groups is often less than equal. Even in established democracies, prison malapportionment—the distribution of legislative seats by counting incarcerated people in their prisons’ districts rather than their home districts—is one example of a practice that distorts voter representation. Prison malapportionment allows less populous districts that house prisons to maximize their voting power at the expense of more densely populated districts from which many incarcerated people previously lived. While there has been significant scholarship on the causes and effects of prison malapportionment, there is no standard …

Depoliticizing The Supreme Court Through Term Limits: A Worthwhile Reform Effort, Kara King

Voting Rights and Democracy Forum

The United States Supreme Court is in a legitimacy crisis. Americans are losing faith in the Supreme Court as an independent branch of government. As a result, policymakers and academics have put forth several proposals to reform the Court. The concept of an eighteen-year term limit maintains some bipartisan support and stands out as the most likely reform. This Article argues that term limits could help depoliticize the nomination process, bring greater stability to the Court, and restore confidence in the Court.

Taking History Seriously: Marjorie Taylor Greene, Reflections On Progressive Lawyering, And Section 3 Of The Fourteenth Amendment, Andrew G. Celli Jr.

Voting Rights and Democracy Forum

History has lessons to teach, and lawyers can learn from and use history in ways other than by cherry-picking from it. This Article contends that, while American history may be vexed, progressive lawyers can fully embrace history and hold it up into the light for consideration, all in service of progressive ends.

This Article describes a recent litigation that illustrates the point. In March 2022, the Author, together with other lawyers and a non-partisan pro-democracy group, represented voters from Georgia’s fourteenth congressional district in their effort to disqualify U.S. Representative Marjorie Taylor Greene from the Georgia ballot—based upon Section 3 …

Updating Anderson-Burdick To Evaluate Partisan Election Manipulation, Andrew Vazquez

Voting Rights and Democracy Forum

This Article analyzes jurisprudence concerning the judicial review of election laws. It suggests that the United States Supreme Court’s approach should acknowledge the realities of political partisanship when reviewing challenged laws and regulations. Specifically, this Article proposes a judicial test to evaluate election laws for partisan biases using factors modeled on those employed by the Court in Gingles v. Thornburg. Simply put, the manipulation of election laws to pursue partisan advantages poses the greatest threat to our democracy. Accordingly, this Article concludes that protecting our democracy from election practices that benefit one party over another in the guise of …

An Anniversary Best Uncelebrated: The 75th Year Of The Presidential Succession Act Of 1947, Roy E. Brownell Ii, John Rogan

Voting Rights and Democracy Forum

On July 18, 1947, President Harry Truman signed the Presidential Succession Act into law. The 1947 Act placed the Speaker of the House and the Senate president pro tempore in the presidential line of succession. Seventy-five years later, the statute needs major revision. Although the 1947 Act has not been used, the nation’s good fortune may change at any moment, especially given ever-present threats to the health and safety of the president and vice president.

This Article argues that Congress should revise the 1947 law in several ways, most notably by making Cabinet secretaries, in most circumstances, the immediate successors …

Increasing Voter Investment In American Democracy: Proposals For Reform, Adam Drake

Voting Rights and Democracy Forum

Millions of Americans choose to stay home every election cycle. Polling suggests that these nonvoters are either apathetic with respect to the democratic process or feel alienated from the United States government. Reforms to the democratic system should focus on alleviating these sentiments, ultimately encouraging more voters to show up to the polls. As turnout increases, so too does the legitimacy and stability of the U.S. government.

With that goal in mind, this Article advocates for a five- prong approach to reforming the electoral system. The first proposed step is to eliminate unnecessary barriers to voting by establishing federal automatic …

Making It Harder To Challenge Election Districting, Erwin Chemerinsky

Voting Rights and Democracy Forum

No abstract provided.

The Consent Of The Governed And The Right To Access The Ballot, John D. Feerick

Voting Rights and Democracy Forum

No abstract provided.

I Hope Tilden Was Right, Jerry H. Goldfeder

Voting Rights and Democracy Forum

No abstract provided.

Updating Anderson-Burdick To Evaluate Partisan Manipulation

Voting Rights and Democracy Forum

This Article analyzes jurisprudence concerning the judicial review of election laws. It suggests that the United States Supreme Court’s approach should acknowledge the realities of political partisanship when reviewing challenged laws and regulations. Specifically, this Article proposes a judicial test to evaluate election laws for partisan biases using factors modeled on those employed by the Court in Gingles v. Thornburg. Simply put, the manipulation of election laws to pursue partisan advantages poses the greatest threat to our democracy. Accordingly, this Article concludes that protecting our democracy from election practices that benefit one party over another in the guise of …

The Court’S Gerrymandering Conundrum: How Hyper-Partisanship In Politics Alters The Rucho Decision, Vince Mancini

Utah Law Review

The Supreme Court’s recent decision in Rucho v. Common Cause was the latest in a line of opinions regarding reviewability of gerrymandering claims related to the constitutionally required decennial state redistricting process. In Rucho, the Court altered the course of future electoral processes and held that partisan gerrymandering claims were nonjusticiable. In doing so, the Court failed to consider obvious pitfalls in limiting the type of review available for these gerrymandering claims. In particular, the Court failed to understand the gravity of the impact such a decision would have on minority voting power and discarded one of the few structural …

The Positive And Negative Purcell Principle, Harry B. Dodsworth

Utah Law Review

The Purcell Principle—the idea that courts should think twice about changing the rules before elections to avoid confusing voters—is sorely misunderstood. Despite deriving from a three-page opinion, the Purcell Principle has morphed into one of the Supreme Court’s most powerful election-law doctrines. By and large, the Court has interpreted the principle as a bright-line rule barring any judicial intervention close to elections and has overwhelmingly used the principle to uphold voting restrictions. That’s a problem because the Purcell Principle is not a bright-line rule. And it’s certainly not one that rubber stamps voting restrictions. To make matters worse, we know …

More On The Varying Meanings Of “Congress” And “Legislature”, Michael Herz

Online Publications

In a recent Election Law Blog post regarding the Independent State Legislature doctrine, Rick Pildes observes that the term “Congress” in the U.S. Constitution sometimes means Congress acting alone and sometimes means Congress acting through legislation. Given that, it makes perfect sense that the term “legislature” can also sometimes mean the one and sometimes the other. I agree. This post just expands the intratextual analysis.

Why The President Should Remain Commander In Chief Of The D.C. National Guard, Christopher F. Melling

BYU Law Review

No abstract provided.

Brief Of Amicus Curiae Conference Of Chief Justices In Support Of Neither Party, Moore V. Harper, No. 21-1271 (U.S. Sept. 6, 2022), Evan Caminker, Carter G. Phillips, Virginia A. Seitz, Kathleen M. Mueller

Appellate Briefs

Founded in 1949, amicus curiae Conference of Chief Justices (the “Conference”) is comprised of the Chief Justices or Chief Judges of the courts of last resort in all 50 states, the District of Columbia, the Commonwealths of Puerto Rico and the Northern Mariana Islands, and the Territories of American Samoa, Guam, and the Virgin Islands. For over 70 years, the Conference has been a leading national voice on important issues concerning the administration of justice in state courts, the operation of state courts and judicial systems, and the role of state courts in our federal system.

The Conference files briefs …

Visualizing Politics In Indonesia: The Design And Distribution Of Election Posters, Colm A. Fox

Research Collection School of Social Sciences

Where studies have shown that visuals are the primary means of political communication, research continues to focus largely on text-based information. To add to our understanding of visual-political communications, this article analyses Indonesian election posters since the 1950s. Drawing on historical materials and on a content analysis of 4,000 election posters, it asks why election posters have been designed and distributed in particular ways. Findings indicate that in the past, posters used singular, though powerful, social symbols to mobilize demographic groups behind political parties. However, contemporary posters are more visually complex and more candidate-centered, making arguments as to what the …

Sacrificing The Public's Health: Conspiracies And Trust In The Scientific Enterprise, Katherine Drabiak

University of St. Thomas Journal of Law and Public Policy

No abstract provided.

An International Law Perspective On Political Informational Warfare: The Challenges Of Combating The Weaponized Use Of Conspiracy Theories And Disinformation To Undermined Democracy, Kimberly Breedon

University of St. Thomas Journal of Law and Public Policy

No abstract provided.

The Psychology Of Conspiracy Theories, Daniel Jolley

University of St. Thomas Journal of Law and Public Policy

No abstract provided.

The Gödel Conspiracy, F.E. Guerra-Pujol

University of St. Thomas Journal of Law and Public Policy

No abstract provided.

Donald Trump And The End Times: How Dispensational Premillennialism Connects Christians With The Big Election Lie, David W. Opderbeck

University of St. Thomas Journal of Law and Public Policy

No abstract provided.

The Un-Reality Of Democratic Order: An Alternative, Nick Sciullo

University of St. Thomas Journal of Law and Public Policy

No abstract provided.

Conspiracy Theories And The U.S. President's Exercise Of Free Speech On Social Media: Constitutional Issues And Challenges, Cynthia Boyer

University of St. Thomas Journal of Law and Public Policy

No abstract provided.

Capital Offense: Is Donald Trump Guilty Of Inciting A Riot At The Capital?, Michael Conklin

University of St. Thomas Journal of Law and Public Policy

No abstract provided.

Conspiracy In The New Republic: Peter Porcupine And The Lessons From Revolutionary France, Patrick Callaway

University of St. Thomas Journal of Law and Public Policy

No abstract provided.