Law Commons^™

Defeating De Facto Disenfranchisement Of Criminal Defendants, Neil Sobol

Faculty Scholarship

In a democracy, voting is not only an important civic duty but also a right that governments owe to their citizens. However, by operation of law, forty-eight states deny voting rights to individuals based on criminal convictions. Activists and scholars attack de jure disenfranchisement as an improper collateral consequence that disproportionately impacts people of color. Although recent years show substantial reforms to reenfranchise defendants, an estimated 5.17 million defendants remained ineligible to vote in 2020.

While efforts to address de jure disenfranchisement remain necessary, a problem that has received considerably less attention is the de facto disenfranchisement of criminal defendants …

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

William & Mary Bill of Rights Journal

COVID-19 has wreaked havoc on so much of our lives, including how to run our elections. Yet the federal courts have refused to respond appropriately to the dilemma that many voters faced when trying to participate in the 2020 election. Instead, the courts—particularly the U.S. Supreme Court and the federal appellate courts—invoked a narrow test that unduly defers to state election administration and fails to protect adequately the fundamental right to vote.

In constitutional litigation, a law usually must satisfy a two-part test: (1) does the state have an appropriate reason for the law and (2) is the law properly …

Models, Race, And The Law, Moon Duchin, Douglas M. Spencer

Publications

Capitalizing on recent advances in algorithmic sampling, The Race-Blind Future of Voting Rights explores the implications of the long-standing conservative dream of certified race neutrality in redistricting. Computers seem promising because they are excellent at not taking race into account—but computers only do what you tell them to do, and the rest of the authors’ apparatus for measuring minority electoral opportunity failed every check of robustness and numerical stability that we applied. How many opportunity districts are there in the current Texas state House plan? Their methods can give any answer from thirty-four to fifty-one, depending on invisible settings. But …

Challenging Congress's Single-Member District Mandate For U.S. House Elections On Political Association Grounds, Austin Plier

William & Mary Law Review

No abstract provided.

The Superfluous Fifteenth Amendment?, Travis Crum

Northwestern University Law Review

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both …

Voting Matters, Wendy K. Mariner

Faculty Scholarship

Elections have consequences—especially for civil rights, social justice, and human rights.

The year 2020 brings another round of elections for president, legislators, governors, secretaries of state, attorneys general, district attorneys, mayors, city council members, school committee members, and even judges. Our elected officials and their appointees decide who pays how much in taxes, what our taxes pay for, what kind of education our children get, what counts as a crime, what agricultural products are subsidized, what the minimum wage shall be, how to conduct the census, who is eligible for Medicaid, SNAP, and WIC benefits, who is admitted into the …

I Pledge Allegiance To The Party: Reclaiming The Associational Rights Of Independent Voters In Open Primaries, C. Alan Carrillo

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

The Current State Of Election Law In The United States, Mark Rush

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Ballot Selfies: Balancing The Right To Speak Out On Political Issues And The Right To Vote Free From Improper Influence And Coercion, Isidora Koutsoulias

Journal of Law and Policy

Courts and legislatures face the difficult task of balancing individual First Amendment rights with other basic freedoms, a task that has become increasingly challenging with the advent of new technology. The emergence of the ballot selfie has caused a legal uproar due to the perception that it may compromise the sanctity of the electoral process and the secret ballot process by facilitating vote buying and coercion. Consequently, several states have enacted laws that prohibit most or all ballot selfies. However, many individuals have rightfully protested these laws as an unreasonable restraint on freedom of speech. This Note argues that although …

Ballot Selfies: Balancing The Right To Speak Out On Political Issues And The Right To Vote Free From Improper Influence And Coercion, Isidora Koutsoulias

Journal of Law and Policy

Courts and legislatures face the difficult task of balancing individual First Amendment rights with other basic freedoms, a task that has become increasingly challenging with the advent of new technology. The emergence of the ballot selfie has caused a legal uproar due to the perception that it may compromise the sanctity of the electoral process and the secret ballot process by facilitating vote buying and coercion. Consequently, several states have enacted laws that prohibit most or all ballot selfies. However, many individuals have rightfully protested these laws as an unreasonable restraint on freedom of speech. This Note argues that although …

Electoral Silver Linings After Shelby, Citizens United And Bennett, Ciara Torres-Spelliscy

Journal of Race, Gender, and Ethnicity

No abstract provided.

Gingles Versus Shaw: Why The Sweet Spot Between Thornburg V. Gingles And Shaw V. Reno Calls For An Amended § 2, Timothy L. O'Hair

Timothy L. O'Hair

Minority voter enfranchisement, and the related issue of minority voter dilution, has been a back and forth issue since the Reconstruction Era—the Fifteenth Amendment was countered by the Jim Crow laws, which were countered by the Voting Rights Act, and so on (this paper goes in depth regarding this seesaw history). After the 1982 Amendments to the VRA, the holding in Thornburg v. Gingles articulated a threshold to ensure minority groups receive a majority-minority district when the group is sufficiently large and compact and politically cohesive. Shaw v. Reno frustrated this by enabling an Equal Protection claim for the majority …

Reynolds Reconsidered, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Race, Federalism, And Voting Rights, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

Faculty Scholarship

In Shelby County v. Holder, the Court struck down an important provision of the Voting Rights Act, section 4, on federalism grounds. The Court argued that Congress no longer had the power to enact section 4 because of the “federalism costs” imposed by the Act and because the Act violated "basic principles" of federalism. Unfortunately, the Court failed to articulate the costs to federalism imposed by the Act, much less conduct a cost-benefit analysis in order to determine whether the benefits of the Act outweighed its costs. Moreover, the Court failed to discuss whether the Reconstruction Amendments ought to matter …

The Meme Of Voter Fraud, Atiba R. Ellis

Catholic University Law Review

The meme of voter fraud is the idea that unworthy voters are attacking the electoral system by voting fraudulently through impersonation or other bad acts. Although scholars of election law aptly demonstrate that the meme is a myth, the meme nonetheless endures as a rationale for the continued passage of heightened voter regulations like voter identification laws. Scholarship critiquing the voter fraud meme relies on partisanship as the prime explanation for voter fraud arguments. This explanation is incomplete in light of the fact that proponents of the myth continue to believe it on an ideological level even when the lack …

The Recent History Of Gerrymandering In Florida: Revitalizing Davis V. Bandemer And Florida’S Constitutional Requirements On Redistricting, Devon Ombres

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Voting Rights Law And Policy In Transition, Guy-Uriel E. Charles, Luis E. Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Reimagining Democratic Inclusion: Asian Americans And The Voting Rights Act, Ming Hsu Chen, Taeku Lee

Publications

The current legal framework for protecting voting rights in the United States has been dramatically destabilized by Supreme Court decisions re-interpreting the protections against minority vote dilution and requires rethinking to survive modern challenges. At the same time, the nation has itself undergone dramatic changes in the racial composition of its polity and in the complexity and salience of race as a factor in political life. In this paper, we focus on a relatively unexamined constituent of this complex reality of modern racial diversity that illustrates some of the core features that all minority groups face in continuing VRA challenges: …

Could The Best Of Tightrope Walkers Manage To Walk The Line Between Race-Consciousness And Race-Predominance? An Analysis Of Race-Based Districting In Light Of Miller V. Johnson, Sean Simpson

Pepperdine Law Review

No abstract provided.

Georgia V. Ashcroft: It's The End Of Section 5 As We Know It (And I Feel Fine) , Michael J. Pitts

Pepperdine Law Review

No abstract provided.

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

All Faculty Scholarship

Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

Section 5 Of The Voting Rights Act And Its Place In Post-Racial America, Enbar Toledano

Enbar Toledano

The Fifteenth Amendment purported to withdraw race and color from the calculus of suffrage. Instead, it gave rise to an era of creative exclusion in which Southern states erected one barrier after another and Congress floundered in its attempts to secure the black vote it had promised. After ninety-five years, progress at last seemed possible with the introduction of the Voting Rights Act of 1965 (VRA), an echo of the Fifteenth Amendment fitted with shiny, new teeth. Section 5 of the VRA reversed the inertia of discrimination by requiring states with a demonstrated history of employing disfranchising voting practices to …

Outsourcing Democracy: Redefining The Public Private Partnership In Election Administration, Gilda R. Daniels

All Faculty Scholarship

“We are left with a system in which almost every state still outsources its elections to what are actually private organizations.”

Federal, state and local governments are deeply indebted to private organizations, political parties, candidates, and private individuals to assist it, inter alia, in registering voters, getting citizens to the ballot box through get out the vote campaigns (GOTV), assisting limited English proficient (LEP) citizens, and monitoring Election Day activities. In a recent Supreme Court case, Crawford v. Marion County, Justice Souter recognized that voting legislation has “two competing interests,” the fundamental right to vote and the need for governmental …

Protecting The Right To Vote: Oversight Of The Department Of Justice's Preparations For The 2008 Election - Statement Of Gilda R. Daniels Before The Senate Judiciary Committee, September 9, 2008, Gilda R. Daniels

All Faculty Scholarship

In 2000, we witnessed faulty voting machines with hanging chads and dimpled ballots. We also experienced error-filled purges and voter intimidation in minority neighborhoods. Since the 2000 Presidential election the voting rights vocabulary has expanded to include terms such as, voting irregularities and election protection and created a new debate regarding voter access versus voter integrity. Despite the debates and new legislation in the form of the Help America Vote Act (HAVA), and the continued enforcement of other voting statutes such as the Voting Rights Act and the National Voter Registration Act, (NVRA), problems persist in the operation of our …

Lessons Learned From The 2004 Presidential Election: Testimony Of Gilda R. Daniels Before The House Judiciary Subcommittee On The Constitution, Civil Rights And Civil Liberties, July 24, 2008, Gilda R. Daniels

All Faculty Scholarship

Since the 2000 Presidential election the voting rights vocabulary has expanded to include terms such as, "voting irregularities" and "election protection" and created a new debate regarding voter access versus voter integrity. Despite the debates and new legislation in the form of the Help America Vote Act (HAVA), and the continued enforcement of other voting statutes such as the Voting Rights Act, and the National Voter Registration Act, (NVRA), problems persist in the operation of our participatory democracy.

What we have witnessed since 2000, particularly during the 2004 election, gave us some reason to hope but also reason for concern. …

A Vote Delayed Is A Vote Denied: A Proactive Approach To Eliminating Election Administration Legislation That Disenfranchises Unwanted Voters, Gilda R. Daniels

All Faculty Scholarship

In an effort to determine voter eligibility and access to the voting booth, our democratic system has allowed political forces, to develop laws that would meet their aims of either granting or denying access to the franchise. Caught in this web of regulations, practices and procedures is the "unwanted voter" - the disabled, elderly, poor, and minority voter. New millennium models of exclusion, such as overly restrictive identification requirements, unwarranted voter purges, restrictive voter registration rules, increasing costs for underlying documents to support citizenship and eligibility for voting, are creating a caste system in the electoral process. The practice of …

Democracy, Race, And Multiculturalism In The Twenty-First Century: Will The Voting Rights Act Ever Be Obsolete?, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

Part I of this essay begins one hundred years before the passage of the Act, with Reconstruction. I briefly canvas the interracial alliances of the Reconstruction and Redemption periods, underscoring that American democracy has been most responsive to the masses, including working class whites, when interracial alliances between whites and blacks commanded majority power. I then recount how a politics of white supremacy animated and perpetuated racial schisms between blacks and whites for a century in the South. Part II describes how the Act came to be passed, emphasizing the role of protest and coalition politics in its enactment, and …

Short Circuit: The Overselling Of Television In Politics, Larry S. Gibson

Faculty Scholarship

Television and now the Internet are at the forefront of American political campaigning but many local elections are won on the ground with little or no investment in television. This piece, originally developed as a book proposal, examines the development of political campaigns in Baltimore, Maryland and nationally with a particular emphasis on the experience of African American candidates.

Shaw V. Reno: On The Borderline, Emily Calhoun

Publications

No abstract provided.