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Articles 1 - 30 of 148
Full-Text Articles in Law
Voting While Trans: How Voter Id Laws Unconstitutionally Compel The Speech Of Trans Voters, Emmy Maluf
Voting While Trans: How Voter Id Laws Unconstitutionally Compel The Speech Of Trans Voters, Emmy Maluf
Michigan Law Review
Thirty-five states currently request or require identification documents for in-person voting, and these requirements uniquely impact transgender voters. Of the more than 697,800 voting-eligible trans people living in states that conduct primarily in-person elections, almost half (43 percent) lack documents that correctly reflect their name or gender. When an ID does not align with a trans voter’s gender presentation, the voter may be disenfranchised—either because a poll worker denies them the right to cast a ballot or because the voter ID requirement chills their participation in the first place. Further, when a trans voter presents an ID that does not …
Destined To Deceive: The Need To Regulate Deepfakes With A Foreseeable Harm Standard, Matthew D. Weiner
Destined To Deceive: The Need To Regulate Deepfakes With A Foreseeable Harm Standard, Matthew D. Weiner
Michigan Law Review
Political campaigns have always attracted significant attention, and politicians have often been the subjects of controversial—even outlandish—discourse. In the last several years, however, the risk of deception has drastically increased due to the rise of “deepfakes.” Now, practically anyone can make audiovisual media that are both highly believable and highly damaging to a candidate. The threat deepfakes pose to our elections has prompted several states and Congress to seek legislative remedies that ensure recourse for victims and hold bad actors liable. These recent attempts at deepfake laws are open to attack from two different loci. First, there is a question …
Is There Anything Left In The Fight Against Partisan Gerrymandering? Congressional Redistricting Commissions And The “Independent State Legislature Theory”, Derek A. Zeigler, Jose Urteaga
Is There Anything Left In The Fight Against Partisan Gerrymandering? Congressional Redistricting Commissions And The “Independent State Legislature Theory”, Derek A. Zeigler, Jose Urteaga
Michigan Law Review
Partisan gerrymandering is a scourge on our democracy. Instead of voters choosing their representatives, representatives choose their voters. Historically, individuals and states could pursue multiple paths to challenge partisan gerrymandering. One way was to bring claims in federal court. The Supreme Court shut this door in Rucho v. Common Cause. States can also resist partisan gerrymandering by establishing congressional redistricting commissions. However, the power of these commissions to draw congressional districts is at risk. In Moore v. Harper, a case decided in the Supreme Court’s 2022-2023 Term, the petitioners asked the Court to embrace the “Independent State Legislature …
Algorithmic Elections, Sarah M.L. Bender
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 …
“A Mystifying And Distorting Factor”: The Electoral College And American Democracy, Katherine Shaw
“A Mystifying And Distorting Factor”: The Electoral College And American Democracy, Katherine Shaw
Michigan Law Review
A Review of Let the People Pick the President: The Case for Abolishing the Electoral College. By Jesse Wegman.
Ranked-Choice Voting As Reprieve From The Court-Ordered Map, Benjamin P. Lempert
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 …
Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang
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 …
The New Front In The Clean Air Wars: Fossil-Fuel Influence Over State Attorneys General- And How It Might Be Checked, Eli Savit
Michigan Law Review
Review of Struggling for Air: Power and the "War On Coal" by Richard L. Revesz and Jack Leinke, and Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America by Paul Nolette.
Inventing Equal Sovereignty, Leah M. Litman
Inventing Equal Sovereignty, Leah M. Litman
Michigan Law Review
The Supreme Court’s 2013 decision in Shelby County v. Holder relied on the “fundamental principle” and “historic tradition” of equal sovereignty to hold one of the Voting Rights Act’s key provisions unconstitutional. Yet almost three years after Shelby County, and despite a recent wave of equal sovereignty challenges to major federal programs, the equal sovereignty principle remains largely unexamined. This Article seeks to provide some clarity—both to establish the contours of the equal sovereignty doctrine and to evaluate whether it is a sound rule of constitutional federalism. The principle of equal sovereignty, as initially articulated by courts and subsequently …
Judging Judicial Elections, Michael S. Kang, Joanna M. Shepherd
Judging Judicial Elections, Michael S. Kang, Joanna M. Shepherd
Michigan Law Review
Melinda Gann Hall’s new book Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections suggests what seems impossible to many of us—a powerful defense of today’s partisan judicial elections. As judicial races hit new levels of campaign spending and television advertising, there has been a flood of criticism about the increasing partisanship, negativity, and role of money. In view of the “corrosive effect of money on judicial election campaigns” and “attack advertising,” the American Bar Association (ABA) recommends against judicial elections, which are currently used to select roughly 90 percent of state judges. Justice O’Connor, who has championed judicial-election …
Election Law Federalism, Justin Weinstein-Tull
Election Law Federalism, Justin Weinstein-Tull
Michigan Law Review
This Article provides the first comprehensive account of non-Voting Rights Act federal voting laws. Section 5 of the Voting Rights Act—long the most effective voting rights law in American history—was disabled by the Supreme Court in Shelby County v. Holder. Section 2 of the Voting Rights Act is in the crosshairs. As the Supreme Court becomes more hostile to race-based antidiscrimination laws like the Voting Rights Act, Congress will turn to race-neutral, election administration-based reforms to strengthen the right to vote. Indeed, many proposals for reform post-Shelby County have taken this form. The federal laws this Article examines—the National Voter …
Thou Shalt Not Electioneer: Religious Nonprofit Political Activity And The Threat “God Pacs” Pose To Democracy And Religion, Jonathan Backer
Thou Shalt Not Electioneer: Religious Nonprofit Political Activity And The Threat “God Pacs” Pose To Democracy And Religion, Jonathan Backer
Michigan Law Review
The Supreme Court’s 2010 decision in Citizens United v. FEC invalidated a longstanding restriction on corporate and union campaign spending in federal elections, freeing entities with diverse political goals to spend unlimited amounts supporting candidates for federal office. Houses of worship and other religious nonprofits, however, remain strictly prohibited from engaging in partisan political activity as a condition of tax-exempt status under Internal Revenue Code § 501(c)(3). Absent this “electioneering prohibition,” religious nonprofits would be very attractive vehicles for political activity. These 501(c)(3) organizations can attract donors with the incentive of tax deductions for contributions. Moreover, houses of worship need …
Paths Of Resistance To Our Imperial First Amendment, Bertrall L. Ross Ii
Paths Of Resistance To Our Imperial First Amendment, Bertrall L. Ross Ii
Michigan Law Review
In the campaign finance realm, we are in the age of the imperial First Amendment. Over the past nine years, litigants bringing First Amendment claims against campaign finance regulations have prevailed in every case in the Supreme Court. A conservative core of five justices has developed virtually categorical protections for campaign speech and has continued to expand those protections into domains that states once had the authority to regulate. As the First Amendment’s empire expands, other values give way. Four key cases from this era illustrate the reach of this imperial First Amendment. In Wisconsin Right to Life, Inc. v. …
Fighting Foreign-Corporate Political Access: Applying Corporate Veil-Piercing Doctrine To Domestic-Subsidiary Contributions, Ryan Rott
Michigan Law Review
Campaign finance regulations limit speech. The laws preclude foreign nationals, including foreign corporations, from participating in U.S. politics via campaign contributions. The unusual characteristics of corporations, however, may allow foreign corporations to exploit a loophole in the regulatory regime. A foreign corporation may contribute to political campaigns by acquiring a domestic subsidiary and dominating it. This Note addresses how these unusual corporate behaviors enable foreign corporations to illegally corrupt the political process. This Note concludes that to close the loophole without violating the free speech rights of domestic subsidiaries, Congress should enact legislation which would apply corporate veil-piercing theory to …
Defining Corruption And Constitutionalizing Democracy, Deborah Hellman
Defining Corruption And Constitutionalizing Democracy, Deborah Hellman
Michigan Law Review
The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on the giving and spending of money in connection with elections only when they serve to avoid corruption or the appearance of corruption. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides …
Citizens United And The Illusion Of Coherence, Richard L. Hasen
Citizens United And The Illusion Of Coherence, Richard L. Hasen
Michigan Law Review
The self-congratulatory tone of the majority and concurring opinions in last term's controversial Supreme Court blockbuster, Citizens United v. Federal Election Commission, extended beyond the trumpeting of an absolutist vision of the First Amendment that allows corporations to spend unlimited sums independently to support or oppose candidates for office. The triumphalism extended to the majority's view that it had imposed coherence on the unwieldy body of campaign finance jurisprudence by excising an "outlier" 1990 opinion, Austin v. Michigan Chamber of Commerce, which had upheld such corporate limits, and parts of a 2003 opinion, McConnell v. FEC, extending Austin to unions …
Voting As Veto, Michael S. Kang
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 …
Conditions On Taking The Initiative: The First Amendment Implications Of Subject Matter Restrictions On Ballot Initiatives, Anna Skiba-Crafts
Conditions On Taking The Initiative: The First Amendment Implications Of Subject Matter Restrictions On Ballot Initiatives, Anna Skiba-Crafts
Michigan Law Review
Nearly half of U.S. states offer a ballot initiative process that citizens may use to pass legislation or constitutional amendments by a popular vote. Some states, however, impose substantive restrictions on the types of initiatives citizens may submit to the ballot for a vote-precluding, for example, initiatives lowering drug penalties or initiatives related to religion. Circuit courts are split on whether and how such restrictions implicate the First Amendment. This Note argues that-rather than limiting "expressive conduct" protected only minimally by the First Amendment, or limiting pure conduct that does not garner any First Amendment protectionsubject matter restrictions on ballot …
Causation Or Correlation? The Impact Of Lulac V. Clements On Section 2 Lawsuits In The Fifth Circuit, Elizabeth M. Ryan
Causation Or Correlation? The Impact Of Lulac V. Clements On Section 2 Lawsuits In The Fifth Circuit, Elizabeth M. Ryan
Michigan Law Review
Under section 2 of the Voting Rights Act, illegal vote dilution exists when an electoral standard, practice, or procedure results in a denial or abridgement of the right to vote on account of race or color Plaintiffs demonstrate vote dilution by introducing evidence regarding a variety of objective factors, including whether voting in the jurisdiction in question is polarized along racial lines. In 1993, the Fifth Circuit adopted a new standard for section 2 plaintiffs trying to prove racially polarized voting. The Fifth Circuit held that demonstrating a mere correlation between race and vote was insufficient to establish racially polarized …
"Now For A Clean Sweep!": Smiley V. Holm, Partisan Gerrymandering, And At-Large Congressional Elections, Benedict J. Schweigert
"Now For A Clean Sweep!": Smiley V. Holm, Partisan Gerrymandering, And At-Large Congressional Elections, Benedict J. Schweigert
Michigan Law Review
The 1930 Census reduced Minnesota's apportionment in the U.S. House of Representatives from ten to nine, requiring the state to draw new congressional districts. The Republican-led state legislature passed a gerrymandered redistricting bill in an attempt to insulate its nine incumbents in the state's delegation from the party's expected loss of the statewide popular vote to the insurgent Farmer-Labor Party. When the Farmer-Labor Governor, Floyd B. Olson, vetoed the redistricting bill, the legislature claimed the bill could take effect without the governor's signature. In Smiley v. Holm, the U.S. Supreme Court decided that the veto was effective and that …
Voter Identification, Spencer Overton
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 …
When Courts Shouldn't Take The Initiative: Section 2 Of The Voting Rights Act, Initiative Petitions, And Operation King's Dream, Francesca Ambrosio
When Courts Shouldn't Take The Initiative: Section 2 Of The Voting Rights Act, Initiative Petitions, And Operation King's Dream, Francesca Ambrosio
Michigan Law Review
This Note argues that interpreting section 2 to exclude initiative proposals during their circulation phase is the only way to avoid insurmountable statutory construction problems and constitutional objections. It grounds the theoretical discussion of the VRA in an analysis of how the court applied section 2 in Operation King's Dream. Part I provides the legal landscape of a section 2 claim, including relevant legislative history and the essential elements of a successful claim. Part II contends that because no voting takes place during the petition phase of a proposal, petition circulation can neither deny nor abridge the right to …
Party On: The Right To Voluntary Blanket Primaries, Margaret P. Aisenbrey
Party On: The Right To Voluntary Blanket Primaries, Margaret P. Aisenbrey
Michigan Law Review
Political parties have unique associational rights. In party primaries, party members associate to further their common political beliefs, and more importantly, to nominate candidates. These candidate are the "standard bearer[s]" for the political party-the people who "best represent[ ] the party's ideologies and preferences." The primary represents a "crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community." Because the primary is such a critical moment for the political party, the party's asso-ciational rights are most important at this time.
The Myth Of Accountability And The Anti-Administrative Impulse, Edward Rubin
The Myth Of Accountability And The Anti-Administrative Impulse, Edward Rubin
Michigan Law Review
The idea of accountability is very much in fashion in legal and political thought these days. To be sure, the term is used in a variety of different ways, but that is the nature of fashion. Colored cloth ponchos may be in fashion this season, for example, but they can be shaped and colored in a variety of different ways. It is differences of this sort that sustain a fashion trend. If the only poncho available were red and square, the fashion trend would display an impressive unity, but it wouldn't last very long. In order to make sales, clothing …
Judging The Law Of Politics, Guy-Uriel Charles
Judging The Law Of Politics, Guy-Uriel Charles
Michigan Law Review
Election law scholars are currently engaged in a vigorous debate regarding the wisdom of judicial supervision of democratic politics. Ever since the Court's 1962 decision in Baker v. Carr, the Court has increasingly supervised a dizzying array of election-related matters. These include the regulation of political parties, access to electoral ballots, partisanship in electoral institutions, the role of race in the design of electoral structures, campaign financing, and the justifications for limiting the franchise. In particular, and as a consequence of the Court's involvement in the 2000 presidential elections in Bush v. Gore, a central task of election …
Turning The Page On Section 5: The Implication Of Multiracial Coalition Districts On Section 5 Of The Voting Rights Act, Daniel A. Zibel
Turning The Page On Section 5: The Implication Of Multiracial Coalition Districts On Section 5 Of The Voting Rights Act, Daniel A. Zibel
Michigan Law Review
This Note analyzes the use of coalition districts in light of current section 5 and equal protection jurisprudence and argues that, in some circumstances, the Equal Protection Clause compels the use of coalition districts to achieve non retrogression under section 5. Part I examines the use of coalition districts, using the litigation in Page v. Bartels as an example. It then argues that the Supreme Court's opinion in Georgia v. Ashcroft permits jurisdictions to create viable racial coalition districts to comply with section 5. Part II argues that while Georgia v. Ashcroft permits the use of coalition districts to achieve …
The False Promise Of One Person, One Vote, Grant M. Hayden
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 …
Reinforcing Representation: Congressional Power To Enforce The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Reinforcing Representation: Congressional Power To Enforce The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Michigan Law Review
A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …
The Campain-Finance Crucible: Is Laissez Fair?, Jamin B. Raskin
The Campain-Finance Crucible: Is Laissez Fair?, Jamin B. Raskin
Michigan Law Review
The 2001 passage of the Bipartisan Campaign Reform Act ("BCRA"), popularly known as "McCain-Feingold," set the stage for a momentous constitutional conflict in the United States Supreme Court in the 2003-04 Term. Among other things, the new legislation bans "soft money" contributions to the national political parties by corporations, labor unions, and individuals; prohibits state parties that are authorized to accept such contributions to spend the proceeds on activities related to federal elections; forbids federal candidates to participate in raising soft money; doubles the amount of "hard money" an individual can contribute in a federal election from $1,000 to $2,000 …
The Contested Right To Vote, Richard Briffault
The Contested Right To Vote, Richard Briffault
Michigan Law Review
For those who believe the United States is a representative democracy with a government elected by the people, the events of late 2000 must have been more than a little disconcerting. In the election for our most important public office - our only truly national office - the candidate who received the most popular votes was declared the loser while his second place opponent, who had received some 540,000 fewer votes, was the winner. This result turned on the outcome in Florida, where approximately 150,000 ballots cast were found not to contain valid votes. Further, due to flaws in ballot …