Law Commons^™

Ranked-Choice Voting As Reprieve From The Court-Ordered Map, Benjamin P. Lempert

Michigan Law Review

Thus far, legal debates about the rise of ranked-choice voting have centered on whether legislatures can lawfully adopt the practice. This Note turns attention to the courts and the question of remedies. It proposes that courts impose ranked-choice voting as a redistricting remedy. Ranked-choice voting allows courts to cure redistricting violations without also requiring that they draw copious numbers of districts, a process the Supreme Court has described as a “political thicket.” By keeping courts away from the fact-specific, often arbitrary judgments involved in redistricting, ranked-choice voting makes for the redistricting remedy that best protects the integrity of the judicial …

Is Groton The Next Evenwel?, Paul H. Edelman

Michigan Law Review Online

In Evenwel v. Abbott the Supreme Court left open the question of whether states could employ population measures other than total population as a basis for drawing representative districts so as to meet the requirement of "one person, one vote" (OPOV). It was thought that there was little prospect of resolving this question soon as no appropriate instances of such behavior were known. That belief was mistaken. In this Essay I report on the Town of Groton, Connecticut, which uses registered voter data to apportion seats in its Representative Town Meeting and has done so since its incorporation in 1957. …

Do Institutional Owners Monitor? Evidence From Voting On Connected Transaction Proposals In Hong Kong-Listed Companies, Félix E. Mezzanotte, Simon Fung

Michigan Business & Entrepreneurial Law Review

The conventional view in Hong Kong has been that institutional owners tend to be passive owners and that they do little to monitor the companies’ management. We investigated whether the presence of institutional owners in Hong Kong-listed companies was associated with greater monitoring of management through dissent voting by hand-collecting information for a sample (n= 96) of connected transaction proposals (“CT proposals”) and of their voting outcomes, as announced in the Stock Exchange of Hong Kong during the period from 2012–14. Our study shows that voting approval rates on CT proposals were lower (i.e. greater dissent voting) when institutional owners …

Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang

Michigan Law Review

This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against …

Blacklining Editorial Privilege, Justin Hurwitz

Michigan Telecommunications & Technology Law Review

Over the past year, FCC Commissioner Mike O’Rielly has drawn valuable attention to various Commission procedures in need of reform. Of these procedures perhaps the most perplexing is that of “editorial privileges” – a process whereby Commission staff is granted permission to continue editing Commission Orders subsequent to their adoption, such that the text of the Order voted on by the Commission is not necessarily the same as that ultimately published in the Federal Register or otherwise released to the public. This procedure is longstanding – predating institutional memory; yet it is also entirely unprecedented in the canon of administrative …

Increasing Youth Participation: The Case For A National Voter Pre-Registration Law, Ceridwen Cherry

University of Michigan Journal of Law Reform

Lagging youth participation rates threaten participatory democracy and undermine the representation of young people's interests in elected government. However, the percentage of registered youth who actually cast ballots is very high. The correlation between registration and actual voter participation suggests that when given assistance and greater opportunities to register, young citizens will vote. This Note proposes a national pre-registration law that would allow voter registration to begin at age sixteen. Such a law would be feasible, constitutional, and politically viable and may increase not only the voter participation of young people, but also the socioeconomic diversity of the electorate.

What Do We Want In A Presidential Primary - An Election Law Perspective, Chad Flanders

University of Michigan Journal of Law Reform

Although the 2008 presidential primaries were in many ways a resounding success in terms of turnout, attention, and sheer excitement, many noted the pressing need for reform. States were rushing to hold their primaries sooner than ever, giving rise to "Super-Duper Tuesday," where twenty-four states had their primaries on the same day. The Democratic nominee at one point looked like it might be decided by the votes of so-called "Superdelegates"-party regulars beholden to no one. As the Democratic nomination contest wore on, Rush Limbaugh, in "Operation Chaos," encouraged his "dittoheads" to raid the party primaries of the Democrats, tilting the …

Voting As Veto, Michael S. Kang

Michigan Law Review

This Article introduces an alternate conception of voting as vetobased on "negative preferences" against a voter's least preferred outcomes-that enriches voting theory and practice otherwise dominated by a conception of voting as a means of expressing a voter's ideal preferences. Indeed, the familiar binary choices presented in American political elections obscure the pervasiveness of negative preferences, which are descriptively salient in voting under all types of circumstances. Negative preferences have been overlooked, despite their theoretical and practical importance across many domains, leaving important questions unexplored in the literature. The Article develops a normative and positive account of voting as veto …

Poll Workers, Election Administration, And The Problem Of Implicit Bias, Antony Page, Michael J. Pitts

Michigan Journal of Race and Law

Racial bias in election administration-more specifically, in the interaction between poll workers and voters at a polling place on election day-may be implicit, or unconscious. Indeed, the operation of a polling place may present an "optimal" setting for unconscious racial bias. Poll workers sometimes have legal discretion to decide whether or not a prospective voter gets to cast a ballot, and they operate in an environment where they may have to make quick decisions, based on little information, with few concrete incentives for accuracy, and with little opportunity to learn from their errors. Even where the letter of the law …

Equal Voice By Half Measures, John Mark Hansen

Michigan Law Review First Impressions

In democratic theory, the ballot is the most perfect expression of the democratic commitment to the moral equality of persons. Every citizen, whether old or young, rich or poor, sophisticated or simple, enjoys the same endowment in an election: a single vote. The ballot not only gives citizens their voice in government, it also makes their voices equal. In practice, however, democracies have erected all sorts of impediments to the ideal of equal voice, such as restrictions on suffrage, legislative malapportionments, and discriminatory gerrymanders. Among the most egregious impediments, however, are surely the systems of indirect election purported to filter …

The Good, The Bad, And The Ugly: Three Proposals To Introduce The Nationwide Popular Vote In U.S. Presidential Elections, Alexander S. Belenky

Michigan Law Review First Impressions

The idea of reforming the Electoral College recurs each time a presidential election nears. Polls show that an overwhelming majority of respondents support abolishing the Electoral College in favor of direct popular election of the President. Yet, it is doubtful whether these polls really imply that such a move would be best for the country. Despite the seeming simplicity of direct popular presidential election, its introduction in the United States—a country in which the clear separation of powers between the states and the federal government has existed for more than two centuries—would have hidden drawbacks that the media and pollsters …

Reforming The Electorial College One State At A Time, Thomas W. Hiltachk

Michigan Law Review First Impressions

The genius of our United States Constitution is the delicate balance our Founding Fathers struck between empowering a national government and preserving the inherent sovereignty of individual states. Any proposed governmental reform that would interfere with that balance should be looked upon skeptically. Recent proposals to do away with the Electoral College in favor of a national popular vote for President deserve such careful examination. But that does not mean that reform is out of reach. We have only to look to the Constitution itself to find that the answer lies in the self-interest of each state. I am an …

An Unsafe Harbor: Recounts, Contests, And The Electoral College, Daniel P. Tokaji

Michigan Law Review First Impressions

Although recent proposals for modifying the Electoral College process have focused mainly on how electoral votes are assigned, another problem with the current system has received less attention: the timetable for resolving post-election disputes over electors. Under 3 U.S.C. § 5, the so-called “safe harbor” provision of federal law, a state can be assured of having its chosen slate of electors recognized only if post-election disputes are resolved within thirty-five days of Election Day. As a practical matter, this provision doesn’t provide states enough time to complete recount and contest proceedings in the event of a close, contested election. This …

Awarding Presidential Electors By Congressional District: Wrong For California, Wrong For The Nation, Sam Hirsch

Michigan Law Review First Impressions

The unfairness of the proposed California Presidential Election Reform Act is obvious: in a close election, the Act virtually assures that California’s fifty-five electoral votes, which would be expected to go entirely to the Democratic presidential candidate under the traditional statewide-winner-takeall system, will instead be split, with more than a third of them going to the Republican candidate. Implementing this “reform” in the nation’s largest Democratic state, but not in any of the large Republican states (like Texas), is roughly the equivalent of handing over to the Republicans the state of Illinois. What is less obvious is that the Act …

Let's Not Jump To Conclusions: Approaching Felon Disenfranchisement Challenges Under The Voting Rights Act, Thomas G. Varnum

Michigan Journal of Race and Law

Section 2 of the Voting Rights Act of 1965 invalidates voting qualifications that deny the right to vote on account of race or color. This Article confronts a split among the federal appellate courts concerning whether felons may rely on Section 2 when challenging felon disenfranchisement laws. The Ninth Circuit Court of Appeals allows felon disenfranchisement challenges under Section 2; however, the Second and Eleventh Circuits foresee unconstitutional consequences and thus do not. After discussing the background of voting rights jurisprudence, history of felon disenfranchisement laws, and evolution of Section 2, this Article identifies the points of contention among the …

Ideological Endowment: The Staying Power Of The Electoral College And The Weaknesses Of The National Popular Vote Interstate Compact, Daniel P. Rathbun

Michigan Law Review First Impressions

The National Popular Vote (“NPV”) movement is designed to eliminate the federalist impact of the Electoral College without amending the Constitution. By fashioning an interstate compact to grant participating states’ electoral votes to the winner of the national popular vote, NPV proponents suppose they can induce states to forfeit their electoral “weights” and replace the current, federalist election process with a fully majoritarian one. But by leaving the Electoral College in place, the NPV movement is setting itself up for a double pushback: first, in the form of immediate legal resistance, and second, through states’ long-term involvement in a meaningfully …

Democratic Principle And Electoral College Reform, Ethan J. Leib, Eli J. Mark

Michigan Law Review First Impressions

The Electoral College is a relic from another time and is in tension with the modern constitutional command of “one person, one vote.” But the Electoral College is, nevertheless, ensconced in our Constitution—and, as a result, we would need to amend the document to alter or abolish it from our political fabric. Still, some states are toying with state-based Electoral College reforms. Thus, irrespective of whether voters in those states favor the abolition of the Electoral College through a federal constitutional amendment, they must critically examine the democratic merits of these statebased reform options. Categorically rejecting all state-based reform is …

Voter Identification, Spencer Overton

Michigan Law Review

In the wake of closely contested elections, calls for laws that require voters to present photo identification as a condition to cast a ballot have become pervasive. Advocates tend to rely on two rhetorical devices: (1) anecdotes about a couple of elections tainted by voter fraud; and (2) "common sense" arguments that voters should produce photo identification because identification is required to board airplanes, buy alcohol, and engage in other activities. This Article explains the analytical shortcomings of anecdote, analogy, and intuition, and applies a cost-benefit approach generally overlooked in election law scholarship. Rather than rushing to impose a photo-identification …

The Power Of Observation: The Role Of Federal Observers Under The Voting Rights Act, James Thomas Tucker

Michigan Journal of Race and Law

The Voting Rights Act of 1965 (VRA) is one of the most successful civil rights laws ever enacted. Following its passage, the promise of the Fifteenth Amendment has become a reality for millions of Americans. Black voters in the South register to vote without being subjected to discriminatory tests or devices. Minority citizens can cast ballots free of intimidation and violence. Barriers posed by English-only elections have been removed for many language minority voters. Voters are permitted to receive assistance from the person of their choice. Federal observers play an indispensable role in serving as the eyes and ears of …

The Politics Of Preclearance, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Michigan Journal of Race and Law

This Essay examines recent charges of political motivation against the Department of Justice and its enforcement of the Voting Rights Act. These accusations appear well-deserved, on the strength of the Department's recent handling of the Texas redistricting submission and Georgia's voting identification requirement. This Essay reaches two conclusions. First, it is clear that Congress wished to secure its understanding of the Act into the future through its preclearance requirement. Many critics of the voting rights bill worried about the degree of discretion that the legislation accorded the Attorney General. Supporters worried as well, for this degree of discretion might lead …

The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher Seaman, Richard Valelly

Michigan Journal of Race and Law

This Article’s analysis reveals that by the 1990s the intent, or purpose, prong of Section 5 had become the dominant basis for objections to discriminatory voting changes. During that decade an astonishing 43 percent of all objections were, according to this assessment, based on discriminatory purpose alone. Thus, a key issue for Congress in determining how to deal with the preclearance requirement of the Act due to expire in 2007-assuming it seeks to restore the protection of minority voting rights that existed before January 2000-is whether to revise the language of Section 5 so as to restore the long-accepted definition …

Felon Disenfrachisement Laws: Partisan Politics In The Legislatures, Jason Belmont Conn

Michigan Journal of Race and Law

This examination of the institutional changes to state legislatures, synthesized with an analysis of the handling of felon disenfranchisement laws by state legislatures, presents a troubling realization about the law today: in the twenty-first century, partisan politics moderates decisions about even the most basic and fundamental principles of democracy. This Note suggests that because state legislators follow their party leadership and position, a state's traditional treatment of racial minorities, geographic location, and even ideology are not the strongest indicators of a state's disenfranchisement laws. Rather, partisan politics drives changes to the state laws governing felon voter eligibility.

After Georgia V. Ashcroft: The Primacy Of Proportionality, Felix B. Chang

Michigan Journal of Race and Law

This Note argues that the majority in Ashcroft have left courts with an unadministerable standard-not so much for reasons that Justice Souter articulated in his dissent, but rather because the Court provided no guidance on navigating around the myriad of factors in the convoluted totality analyses. In the face of this uncertainty, lower courts will rely increasingly on the proportionality standard of Johnson v. De Grandy, which marked the midpoint in the judicial shift from Justice Brennan's worldview to Justice O'Connor's world-view. Part I examines two cases after Ashcroft which represent different degrees of racial vote dilution: Shirt v. …

The False Promise Of One Person, One Vote, Grant M. Hayden

Michigan Law Review

It has now been four decades since the Supreme Court stepped into the political thicket with its groundbreaking series of reapportionment cases. Those cases rather quickly brought about radical changes in the structure of our national, state, and local governments and, in so doing, reshaped the political landscape of the country in many, mostly beneficial, ways. The reapportionment cases also signaled the beginning of a revolution in the way we view the rights associated with meaningful participation in a democratic society, a revolution that continues to this day. We now enjoy a right to vote that is much more comprehensive …

The Absentee Ballot And The Secret Ballot: Challenges For Election Reform, John C. Fortier, Norman J. Ornstein

University of Michigan Journal of Law Reform

Reforms in the recently enacted federal election reform legislation primarily address improving voting at a polling place, but there is a growing share of the electorate who vote away from the polling place through increased use of absentee ballots and vote-by-mail systems. Voters who vote away from the polling place do not have the same protections as those at the polling place. In particular, these voters do not have a secret ballot, as any ballot cast without a drawn curtain behind oneself is potentially subject to coercion, vote buying and fraud.

This Article looks at the tension between the Australian …

Voter Education: The Key To Election Reform Success Lessons From Florida, Susan A. Macmanus

University of Michigan Journal of Law Reform

Over a dozen national task forces and commissions have analyzed the 2000 presidential election and concluded that electoral system reforms are imperative not just in Florida, but nationwide. Among the common recommendations are elimination of punch card ballots, enhancement of registration procedures and outreach, provision of more accurate voter lists, clear delineation of appeals processes, establishment of voter rights and responsibilities, clarification of recount rules and procedures, securing of accessible polling places, better facilitation of voting and proper counting of absentee ballots, and ensuring provisional ballots available at each precinct. For these reforms to be most effective, the reports say, …

Strategic Voting And African-Americans: True Vote, True Representation, True Power For The Black Community, Maxine Burkett

Michigan Journal of Race and Law

As long as American politics remain securely bound to the two-party system, Blacks will remain a voting block; a block that may shift, but a block nonetheless. And although this appears to be to our strategic disadvantage, allowing conviction to direct us, as well as a deep respect for the intense struggle for the franchise, will forever be a noble posture.

Redefining American Democracy: Do Alternative Voting Systems Capture The True Meaning Of "Representation"?, James Thomas Tucker

Michigan Journal of Race and Law

This Article explores whether alternative voting systems are compatible with the meaning of representation in the United States. Part II begins by examining the role of geographical representation and the effect it has on the ability of individuals and groups of voters to give or withhold their consent. Part III follows this inquiry by assessing the relationship between representatives and constituents under majoritarian and proportional systems to determine the consequences of moving away from geographical representation towards models designed to enhance opportunities for all voters to choose winning candidates. A description of what a "majority" is and when and how …

Morgan Kousser's Noble Dream, Heather K. Gerken

Michigan Law Review

J. Morgan Kousser, professor of history and social science at the California Institute of Technology, is an unusual academic. He enjoys the respect of two quite different groups - historians and civil rights litigators. As a historian, Kousser has written a number of important works on the American South in the tradition of his mentor, C. Vann Woodward, including a foundational book on southern political history, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910. Many of his writings have become seminal texts among election law scholars. Kousser has also used his historical skills …

Lowering The Preclearance Hurdle Reno V. Bossier Parish School Board, 120 S. Ct. 866 (2000), Alaina C. Beverly

Michigan Journal of Race and Law

This Case Note examines a recent Supreme Court decision that collapses the purpose and effect prongs of Section 5, effectively lowering the barrier to preclearance for covered jurisdictions. In Reno v. Bossier Parish School Board II the Court determined that Section 5 disallows only voting plans that are enacted with a retrogressive purpose (i.e., with the purpose to "worsen" the position of minority voters). The Court held that Section 5 does not prohibit preclearance of a plan enacted with a discriminatory purpose but without a retrogressive effect. Evidence of a Section 2 violation alone will not be enough to prove …