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Full-Text Articles in Law

La Follette'S Folly: A Critique Of Party Associational Rights In Presidential Nomination Politics, Alan Martinson Oct 2008

La Follette'S Folly: A Critique Of Party Associational Rights In Presidential Nomination Politics, Alan Martinson

University of Michigan Journal of Law Reform

Every four years, observers of the presidential nomination season decry the undue influence of those states that hold their primaries first, particularly Iowa and New Hampshire. Currently, Democratic Party rules protect the position of these states. In 2008, two states disregarded party rules in order to move their primaries to a more influential position in the primary season. As punishment for disobeying the rules, the national party diluted the influence of the delegates from these states at the national convention. Legislative solutions to the problems of the current nomination process appear unlikely. Moreover, Supreme Court jurisprudence places no limits on …


Post-Amendment 80 Judicial Politics In Arkansas: Have The Changes Undermined The Argument For Selection By Appointment?, Jay Barth Jul 2008

Post-Amendment 80 Judicial Politics In Arkansas: Have The Changes Undermined The Argument For Selection By Appointment?, Jay Barth

University of Arkansas at Little Rock Law Review

No abstract provided.


The Justiciability Of Eligibility: May Courts Decide Who Can Be President?, Daniel P. Tokaji Jan 2008

The Justiciability Of Eligibility: May Courts Decide Who Can Be President?, Daniel P. Tokaji

Michigan Law Review First Impressions

The 2008 election cycle has been a busy one for legal disputes over the qualifications of presidential candidates, with federal cases having been filed to challenge both major candidates’ eligibility under the “natural born Citizen” clause. These cases unquestionably present vital questions of constitutional law, touching on matters of self-evident national importance. It is doubtful, however, that they are justiciable in lower federal courts. Standing requirements and the political question doctrine make it unlikely that a federal court will reach the merits in cases of the type filed to date.


Originalism And The Natural Born Citizen Clause, Lawrence B. Solum Jan 2008

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Michigan Law Review First Impressions

The enigmatic phrase “natural born citizen” poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the original public meaning of the constitutional text. The notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law—a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory. But the Constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.


Equal Voice By Half Measures, John Mark Hansen Jan 2008

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 Jan 2008

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 Jan 2008

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 Jan 2008

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 Jan 2008

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 Jan 2008

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 Jan 2008

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 Jan 2008

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 …


"Now For A Clean Sweep!": Smiley V. Holm, Partisan Gerrymandering, And At-Large Congressional Elections, Benedict J. Schweigert Jan 2008

"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 …