Redistricting’S Ultimate Antidote, 2023 University of Colorado Law School
Redistricting’S Ultimate Antidote, Douglas M. Spencer
Publications
No abstract provided.
The Stolen Election Lie And The Freedom Of Speech, 2023 Barry University
The Stolen Election Lie And The Freedom Of Speech, Wes Henricksen
Faculty Scholarship
No abstract provided.
Election Subversion And The Writ Of Mandamus, 2023 Notre Dame Law School
Election Subversion And The Writ Of Mandamus, Derek T. Muller
Journal Articles
Election subversion threatens democratic self-governance. Recently, we have seen election officials try to manipulate the rules after an election, defy accepted legal procedures for dispute resolution, and try to delay results or hand an election to a losing candidate. Such actions, if successful, would render the right to vote illusory. These threats call for a response. But rather than recommend the development of novel tools to address the problem, this Article argues that a readily available mechanism is at hand for courts to address election subversion: the writ of mandamus. This Article is the first comprehensive piece to situate the …
The President Of The Senate, The Original Public Meaning Of The Twelfth Amendment, And The Electoral Count Reform Act, 2023 Notre Dame Law School
The President Of The Senate, The Original Public Meaning Of The Twelfth Amendment, And The Electoral Count Reform Act, Derek T. Muller
Journal Articles
When Congress convenes under the Twelfth Amendment and the votes of presidential electors are counted, there are three different responsibilities to consider. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes?
This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. …
Constitutional Text, Founding-Era History, And The Independent-State-Legislature Theory, 2023 University of Georgia School of Law
Constitutional Text, Founding-Era History, And The Independent-State-Legislature Theory, Dan T. Coenen
Scholarly Works
One question raised by proponents of the so-called independent-state-legislature theory concerns the extent to which state courts can apply state constitutional requirements to invalidate state laws that concern federal elections. According to one proposed application of the theory, state courts can never subject such laws to state-constitution-based judicial review. According to another application, federal courts can broadly, though not invariably, foreclose state courts from drawing on state constitutions to invalidate federal-election-related state legislation. This article evaluates whether either of these positions comports with the original meaning of the Constitution. Given the article’s focus on the originalist methodology, it directs attention …
The Unabridged Fifteenth Amendment, 2023 Washington University in St. Louis School of Law
The Unabridged Fifteenth Amendment, Travis Crum
Scholarship@WashULaw
In the legal histories of Reconstruction, the Fifteenth Amendment’s drafting and ratification is an afterthought compared to the Fourteenth Amendment. This oversight is perplexing given that the Fifteenth Amendment ushered in a brief period of multi-racial democracy and laid the constitutional foundation for the Voting Rights Act of 1965. This Article helps to complete the historical record and provides a thorough accounting of the Fifteenth Amendment’s text, history, and purpose.
This Article situates the Fifteenth Amendment within the broad array of constitutional provisions, federal statutes, fundamental conditions, and state laws that enfranchised—and disenfranchised—Black men during Reconstruction. This Article then performs …
Faithless Electors And The National Popular Vote Interstate Compact After Chiafalo V. Washington, 2022 St. Mary's University
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, 2022 Benjamin N. Cardozo School of Law
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.
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, 2022 Mercer University School of Law
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, …
Algorithmic Elections, 2022 University of Michigan Law School
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 …
American Voter Turnout: The Influence Of Education Levels On Voter Participation, 2022 Chapman University
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, 2022 Fordham University School of Law
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, 2022 Fordham University School of Law
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, 2022 Fordham Law School
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, 2022 Fordham University School of Law
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, 2022 Fordham University School of Law
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, 2022 Fordham University School of Law
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, 2022 University of California, Berkeley School of Law
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, 2022 Fordham University School of Law
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.
I Hope Tilden Was Right, 2022 Fordham University School of Law
I Hope Tilden Was Right, Jerry H. Goldfeder
Fordham Law Voting Rights and Democracy Forum
No abstract provided.