Election Law Commons^™

The California Supreme Court Replaces Gingles Prong One, Bruce A. Wessel, Jason D. D'Andrea

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Fraudulent Vote Dilution, Jason Marisam

Fordham Law Voting Rights and Democracy Forum

In recent years, the Republican Party and conservative groups have brought lawsuits that advance a novel type of voting claim, which this Article calls fraudulent vote dilution. This claim asserts that an election rule is unconstitutional because it makes it too easy to cast fraudulent ballots that, when tabulated, will dilute the strength of valid and honest ballots. With the 2024 election nearing, the Republican Party may again test fraudulent vote dilution claims in court, as it seeks injunctions to make liberal election rules stricter in ways that make it harder for Democratic voters to cast ballots. This Article advances …

Spies, Trolls, And Bots: Combating Foreign Election Interference In The Marketplace Of Ideas, Nahal Kazemi

Fordham Law Voting Rights and Democracy Forum

Foreign disinformation operations on social media pose a significant and rapidly evolving risk, particularly when aimed at American elections. We must urgently and effectively address this form of election interference. This Article examines potential responses to those risks, through a review of the unique characteristics, both practical and legal, of political advertising on social media platforms. This Article analyzes proposed legislative responses to foreign disinformation, noting that no single proposed law to date adequately addresses the threats and challenges posed by foreign disinformation. This Article considers the election law landscape in which the proposed laws would operate. It evaluates the …

Americans For Prosperity Foundation V. Bonta: Protecting Free Speech And Its Implications For Campaign Finance Disclosures, Sara Lindsay Neier

Fordham Law Voting Rights and Democracy Forum

In 2021, the United States Supreme Court in Americans for Prosperity Foundation v. Bonta considered the anonymous speech rights of charitable donors against the California Attorney General’s interest in preventing wrongdoing by charitable organizations. The Court applied exacting scrutiny, a standard traditionally applied to campaign finance disclosure laws, determining that California’s requirement was facially invalid as a violation of associational rights. Bonta did not concern campaign finance, making this application of exacting scrutiny novel. This Article considers the open questions raised by Bonta regarding how exacting scrutiny should be applied and what it means for the future of campaign finance …

The Case For Federal Deference To State Court Redistricting Rulings: Lessons From Ohio’S Districting Disaster, John Sullivan Baker

Fordham Law Voting Rights and Democracy Forum

In a watershed 2015 referendum, Ohioans decisively approved a state constitutional amendment that prohibited partisan gerrymandering of General Assembly districts and created the Ohio Redistricting Commission. Though the amendment mandated that the Commission draw proportional maps not primarily designed to favor or disfavor a political party, the Commission—composed of partisan elected officials—repeatedly enacted unconstitutional, heavily gerrymandered districting plans in blatant defiance of the Ohio Supreme Court.

After the Ohio Supreme Court struck down four of the Commission’s plans, leaving Ohio without state House and Senate maps just months before the 2022 general election, a group of voters sued in the …

Why We Can’T Have Nice Things: Equality, Proportionality, And Our Abridged Voting Rights Regime, Michael Latner

Fordham Law Voting Rights and Democracy Forum

What constraints should the protection of political equality place on the design of electoral systems? With the exception of requiring approximate population equality across a jurisdiction’s districts, the U.S. voting rights regime accepts substantial disproportionality in voting strength. This Article addresses the current Supreme Court’s abandonment of the Second Reconstruction’s “one person, one vote” standard with regard to both racial and partisan gerrymandering, and assesses the role that Congress and political science have played in this transition. This Article argues that an unabridged voting rights regime must recognize a standard of proportional representation derived from the protection of individual political …

Discriminatory Intent Claims Under Section 2 Of The Voting Rights Act, Amandeep S. Grewal

Fordham Law Voting Rights and Democracy Forum

This Article addresses a new controversy over whether Section 2 of the Voting Rights Act prohibits laws that exhibit “only” discriminatory intent, in the absence of discriminatory results. Lower courts have long embraced an intent approach for Section 2. And the Department of Justice has rested its entire ongoing case against Georgia’s controversial voting bill on an intent approach.

However, this Article shows that the Supreme Court’s decision in Brnovich v. DNC effectively rejects the intent approach to Section 2. In April 2023, the Eleventh Circuit reversed its prior cases and now rejects an intent theory. This puts in peril …

Voting Rights And The Electoral Process: Resolving Representation Issues Due To Felony Disenfranchisement And Prison Gerrymandering, Andrew Calabrese, Tim Gordon, Tianyi Lu

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Third Parties And The Electoral College: How Ranked Choice Voting Can Stop The Third-Party Disruptor Effect, Hillary Bendert, Jacqueline Hayes, Kevin Ruane

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Presidential Election Disruptions: Balancing The Rule Of Law And Emergency Response, Jason D'Andrea, Sonia Montejano, Matthew Vaughan

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Candidates Of Their Choice? Paradoxical Impact Of The Voting Rights Act In Virginia, Mark E. Rush

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Title I Of The Civil Rights Act In Contemporary Voting Rights Litigation, Helen L. Brewer

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

The New Laboratories Of Democracy, Gerald S. Dickinson

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Epic Fail: Harkenrider V. Hochul And New York's 2022 Misadventure In "Independent" Redistricting, Richard Briffault

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

De-Class-Ifying Microtargeted Political Advertising, Jacob Kovacs-Goodman

Fordham Law Voting Rights and Democracy Forum

In contemporary American politics, Big Tech companies provide sophisticated advertising interfaces that enable anyone to target specific voters by demographic. These companies defend their tools as “neutral” to evade culpability for discriminatory ads. Yet, such microtargeted advertising presents a significant threat to democracy. This Article advances a possible two-pronged solution to bar online platforms from targeting political ads based on a user’s protected class. First, this Article promotes a largely unexplored tactic: extending Title II of the Civil Rights Act into the digital space so that behavior that would be impermissibly discriminatory offline is not permitted online. Second, this Article …

A Government Of Laws And Not Of Men: Why Justice Brandeis Was Right To Assume Congress Can Restrain The President's Removal Power, Danielle Rosenblum

Fordham Law Voting Rights and Democracy Forum

Since the Founding, the extent of the president’s power to remove executive officials from office remains unsettled. While the Appointments Clause in Article II, Section 2 empowers Congress to participate in the hiring of executive officials, the United States Constitution’s text is silent on whether Congress can limit the president’s ability to fire such employees. The debate on the proper scope of the president’s removal power is significant because it serves as a proxy for a larger constitutional question: whether constraints on presidential power advance or sit in tension with democracy. This Article argues that Justice Brandeis was right to …

A Modern-Day 3/5 Compromise: The Case For Finding Prison Gerrymandering Unconstitutional Under The Thirteenth Amendment, Shana Iden

Fordham Law Voting Rights and Democracy Forum

Vestiges of slavery and systemic disenfranchisement of people of color persist in the United States. One of these remnants is the practice of prison gerrymandering, which occurs when government officials count incarcerated individuals as part of the population of the prison’s location rather than the individual’s home district. This Article argues that prison gerrymandering functions as a badge of slavery that should be prohibited under the Thirteenth Amendment.

First, this Article provides background on prison gerrymandering and charts its impact through history, particularly on Black communities. Moreover, this Article analyzes how litigation under the Fourteenth Amendment has not yielded meaningful …

A Constitutional Right To Early Voting, David Schultz

Fordham Law Voting Rights and Democracy Forum

Voting is a cost-benefit decision. Individuals are more likely to vote if the benefits of doing so outweigh the disadvantages. With early voting laws eased due to the COVID-19 pandemic, the 2020 election demonstrated that turnout increases when elected officials reduce voting costs. Despite all the benefits of early voting, there is no constitutional right, and it remains a privilege that state legislatures can revoke at will.

Since the 2020 election, state legislatures have proposed—and enacted—hundreds of bills to change voting rules. But with the intense partisan disagreement over voting, coupled with political polarization reaching an apex, these acts restricting …

The Looming Threat Of The Independent State Legislature Theory And The Erosion Of The Voting Rights Act: It Is Time To Enshrine The Right To Vote, Javon Davis

Fordham Law Voting Rights and Democracy Forum

Over the last decade, the emergence of an imperial United States Supreme Court—currently armed with the largest conservative majority since the 1930s—has radically reshaped federal voting rights protections. During the litigation surrounding the 2020 election, however, an obscure threat reemerged. The fringe independent state legislature (“ISL”) theory is a potentially revolutionary constitutional theory that could lead to widespread voter disenfranchisement. Proponents of the theory, including Supreme Court Justices, posit, in part, that the United States Constitution vests state legislatures with plenary power to construct rules for federal elections—unbound by state constitutions and free from state judicial review.

Once a refuge …

Moore V. Harper And The Consequential Effects Of The Independent State Legislature Theory, Chase Cooper

Fordham Law Voting Rights and Democracy Forum

In December 2022, the United States Supreme Court heard oral arguments in Moore v. Harper. The case addresses whether the North Carolina Supreme Court possesses the authority to strike down a redistricting map drawn by the state legislature. Petitioners contend that the state legislature has no such authority under the United States Constitution, citing a novel interpretation of the Elections Clause known as the “independent state legislature” (“ISL”) theory. The ISL theory is not a unified theory, but rather a constellation of related doctrinal positions that revolve around a core precept: ordinary governing principles by which state courts review …

Citizen Enforcement Laws Threaten Democracy, David A. Carrillo, Stephen M. Duvernay

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Rucho In The States: Districting Cases And The Nature Of State Judicial Power, Chad M. Oldfather

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

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

Fordham Law 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

Fordham Law 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.

Fordham Law 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

Fordham Law 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

Fordham Law 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

Fordham Law 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

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

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

Fordham Law Voting Rights and Democracy Forum

No abstract provided.