Law Commons^™

Disentangling Race And Politics: Racial Gerrymandering In South Carolina's First Congressional District, Matthew Poliakoff

Duke Journal of Constitutional Law & Public Policy Sidebar

After the 2020 Census, South Carolina's Republican-controlled legislature redrew the boundaries for Congressional District 1, historically anchored in Charleston County. After thirty-thousand African American voters were moved out of District 1 and into District 6, the South Carolina State Conference of the NAACP challenged the new map as an unconstitutional racial gerrymander. A three-judge district court panel agreed, finding that race predominated above other factors in the map redraw. On appeal, the question remains not only whether the state legislature used race above other factors in its map design, but also how plaintiffs are expected to prove these claims in …

An Alternative To The Independent State Legislature Doctrine, Bruce Ledewitz

Law Faculty Publications

One of the most momentous actions taken by the United States Supreme Court in the last term was not deciding a case but granting review at the end of the term in Moore v. Harper, the North Carolina congressional redistricting case. This is the case in which the Supreme Court appears likely to adopt some version of the Independent State Legislature Doctrine (Doctrine). In this essay, I will describe the actual case and the Doctrine. But I will also be offering an alternative to the Doctrine, one that I believe achieves some of the goals that the Justices who …

Elected-Official-Affiliated Nonprofits: Closing The Public Integrity Gap, Richard Briffault

Faculty Scholarship

Recent years have witnessed the growing use by elected officials, particularly state and local chief executives, of affiliated nonprofit organizations to advance their policy goals. Some of these organizations engage in public advocacy to advance a governor’s or mayor’s legislative program. Others operate more like conventional charities, raising philanthropic support for a range of governmental social welfare programs. Elected officials fundraise for these organizations, which are often staffed by close associates of those elected officials, and the organizations’ public communications frequently feature prominently the name or likeness of their elected-official sponsor. As these organizations do not engage in electioneering, they …

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 New Elections Clause, Michael T. Morley

Scholarly Publications

No abstract provided.

De Facto Class Actions: Plaintiff-And Defendant-Oriented Injunctions In Voting Rights, Election Law, And Other Constitutional Cases, Michael T. Morley

Faculty Scholarship

No abstract provided.

Lobbying And The Petition Clause, Maggie Blackhawk

All Faculty Scholarship

Contrary to popular opinion, the Supreme Court has not yet resolved whether lobbying is constitutionally protected. Belying this fact, courts, Congress, and scholars mistakenly assume that lobbying is protected under the Petition Clause. Because scholars have shared the mistaken assumption that the Petition Clause protects the practice of “lobbying”, no research to date has looked closely at the Petition Clause doctrine and the history of petitioning in relation to lobbying. In a recent opinion addressing petitioning in another context, the Supreme Court unearthed the long history behind the right to petition and argued for the importance of this history for …

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 …

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

Faculty Scholarship

No abstract provided.

The Intratextual Independent "Legislature" And The Elections Clause, Michael T. Morley

Scholarly Publications

Many states have delegated substantial authority to regulate federal elections to entities other than their institutional legislatures, such as independent redistricting commissions empowered to determine the boundaries of congressional districts. Article I’s Elections Clause and Article II’s Presidential Electors Clause, however, confer authority to regulate federal elections specifically upon State “legislatures,” rather than granting it to States as a whole. An intratextual analysis of the Constitution reveals that the term “legislature” is best understood as referring solely to the entity within each state comprised of representatives that has the general authority to pass laws. Thus, state constitutional provisions or laws …

Remedial Equilibration And The Right To Vote Under Section 2 Of The Fourteenth Amendment, Michael T. Morley

Scholarly Publications

The modern "voting wars" involve repeated legal challenges alleging that procedures aimed at protecting the electoral process, such as proof-of-citizenship requirements for registration and voter identification laws, violate the fundamental constitutional right to vote. In adjudicating such cases, courts make effectively subjective judgments about whether the challenged statutes or regulations make voting too burdensome.

Section 2 of the Fourteenth Amendment offers critical, and previously overlooked, insight into the scope of the right to vote. It imposes a uniquely severe penalty-reduction in representation in the House of Representatives and Electoral College-when that right is violated or abridged. 'remedial deterrence," a crucial …

Toward A Fundamental Right To Evade Law? Protecting The Rule Of Unequal Racial And Economic Power In Shelby County And State Farm, Martha T. Mccluskey

Journal Articles

To rationalize its ruling on voting rights, Shelby County, Alabama v. Holder develops a constitutional vision of passivity in the face of institutionalized power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, a 2003 Supreme Court ruling involving a different subject area, state punitive damage awards. In both, the Court asserts newly articulated judicial power to override other branches, not to protect human rights, but rather to expand institutionalized immunity from those rights. On the surface, the Court’s rejection of state sovereignty in State Farm (protecting multistate corporations from high punitive damages) …

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

Faculty Scholarship

No abstract provided.

The Right To Vote Under State Constitutions, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article provides the first comprehensive look at state constitutional provisions explicitly granting the right to vote. We hear that the right to vote is "fundamental," the "essence of a democratic society," and "preservative of all rights." But courts and scholars are still searching for a solution to the puzzle of how best to protect voting rights, especially because the U.S. Supreme Court has underenforced the right to vote. The answer, however, is right in front of us: state constitutions. Virtually every state constitution includes direct, explicit language granting the right to vote, as contrasted with the U.S. Constitution, which …

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 …

Election Law As Applied Democratic Theory, James A. Gardner

Journal Articles

Democracy does not implement itself; a society’s commitment to govern itself democratically can be effectuated only through law. Yet as soon as law appears on the scene significant choices must be made concerning the legal structure of democratic institutions. The heart of the study of election law is thus the examination of the choices that our laws make in seeking to structure a workable system of democratic self-rule. In this essay, written for a symposium on Teaching Election Law, I describe how my Election Law course and materials focus on questions of choice in institutional design by emphasizing election law’s …

Campaign Speech Law With A Twist: When The Government Is The Speaker, Not The Regulator, Helen Norton

Publications

Although government entities frequently engage in issue-related campaign speech on a variety of contested ballot and legislative measures, this fact has been entirely overlooked in contemporary First Amendment debates over campaign speech law specifically and government speech more generally. The Supreme Court's "campaign speech" and "government speech" dockets have focused to date on claims by private parties that the government has restricted or silenced their speech in violation of the First Amendment. In contrast, disputes over what this Article calls "governmental campaign speech" involve Free Speech Clause and other challenges by private parties who seek instead to silence the government's …

A Solution Looking For A Problem: Testimony Before The 2010 Maryland General Assembly On Senate Bill 570/House Bill 986: Campaign Materials – Stockholder Approval, Larry S. Gibson

Faculty Scholarship

The U.S. Supreme Court in Citizens United v Federal Elections Commission declared unconstitutional under the First Amendment right to freedom of speech federal statutory limitations on corporate political expenditures. Before Citizens United, Maryland was already among the 26 states that permitted corporations to make direct political contributions and to make independent political expenditures. Consequently, Citizens United did not change Maryland election law and practice. The Maryland General Assembly has steadfastly resisted efforts to change the Maryland approach. Over the past several years, the General Assembly has repeatedly rejected bills that would have banned political contributions by business entities. Many in …

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 …

The Supreme Court And Indiana's Voter Id Law, David Williams

Articles by Maurer Faculty

No abstract provided.

Lobbying And Campaign Finance: Separate And Together, Richard Briffault

Faculty Scholarship

The relationship between lobbying and campaign finance is complex, contested, and changing. Lobbying and campaign finance are two important forms of political activity that combine money and communication in ways that have significant implications for democratic self-government. The two practices frequently interact and reinforce each other, with individuals, organizations, and interest groups deploying both lobbyists and campaign money to advance their goals. Congress, in 2007, for the first time explicitly recognized the intersection of campaign finance and lobbying when it adopted legislation specifically regulating the campaign finance activities of lobbyists. At roughly the same time, several of the leading candidates …

How To Think About Voter Fraud (And Why), Chad Flanders

All Faculty Scholarship

In recent months, debates over voter fraud have consumed state legislatures and blogs, courts and election commissions. The prevailing way of framing that debate has been in terms of numbers and statistics: how much voter fraud is there, and does the amount of voter fraud justify new measures to prevent it? In my essay, I argue for a shift away from statistical analysis and towards normative discourse. Only if we understand why (and whether) voter fraud is bad will we be able to decisively settle debates about what should be done about it, if anything.

The first part of my …

Managing Gerrymandering, Mitchell N. Berman

All Faculty Scholarship

Last spring, in Vieth v. Jubelirer, the Supreme Court addressed a claim of unconstitutional partisan gerrymandering for the first time since having held such claims justiciable, 18 years earlier, in Davis v. Bandemer. Vieth was a fractured decision. All nine Justices agreed that partisan gerrymandering is of constitutional moment, a substantial majority declaring that excessive partisanship is unconstitutional. The Justices also united in rejecting the particular gerrymandering test advanced in Bandemer. There agreement ended. Four Justices proposed three tests to replace the unmeetable Bandemer standard. A four-member plurality would have overruled Bandemer more completely by holding that partisan gerrymandering claims …

What Bush V. Gore Means For Elections In The 21st Century, Helen Norton

Publications

No abstract provided.

Bush V. Gore As An Equal Protection Case, Richard Briffault

Faculty Scholarship

In Bush v. Gore, the United States Supreme Court applied the Equal Protection Clause to the mechanics of state election administration. The Court invalidated the manual recount of the so-called undervote – that is, ballots that vote-counting machinery had found contained no indication of a vote for President – which the Florida Supreme Court had ordered to determine the winner of Florida's vote for presidential electors in the 2000 presidential election. The United States Supreme Court reasoned that the principles it had previously articulated in applying the Equal Protection Clause to the vote were violated by the Florida court's …

Shaw V. Reno: On The Borderline, Emily Calhoun

Publications

No abstract provided.

Washington's Ballot Restriction For Minor Party Candidates: When Is A Primary Not A Primary?, Emily Calhoun

Publications

No abstract provided.

Thornburg V. Gingles, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

The First Amendment And Distributional Voting Rights Controversies, Emily M. Calhoun

Publications

No abstract provided.

City Of Lockhart V. United States, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.