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Full-Text Articles in Law

A Defense Of The Electoral College In The Age Of Trump, John Yoo Mar 2021

A Defense Of The Electoral College In The Age Of Trump, John Yoo

Pepperdine Law Review

In the aftermath of the 2016 U.S. Presidential Election, where Donald J. Trump lost the popular vote by nearly 3 million votes but still secured victory in the Electoral College, renewed efforts to delegitimize or abolish the Electoral College system have surfaced. Critics, calling for a direct national vote for President, attacked the legitimacy of the election and decried the Constitution’s method of presidential selection as antiquated and undemocratic. Some legal scholars even suggested that the Electoral College must be abolished to disentangle it from America’s racist past and history of slavery. Recently, though, reformers in several ...


Reconstructing The Voting Rights Act: Subnational Action And Voting Rights Post-1965, Sean M. Holly Jan 2021

Reconstructing The Voting Rights Act: Subnational Action And Voting Rights Post-1965, Sean M. Holly

Honors Theses

The discussion of suffrage and the development of the U.S. electorate is misguidedly based solely around federal action; constitutional amendments and federal legislation are commonly revered as primary determinants of the right to vote. This tendency poses a specific problem with contemporary discussions of the Voting Rights Act of 1965. Specifically, discussions of the VRA ignores the ability of subnational actors to innovate politically and readjust their vehicles of political development in the wake of federal supposition of state powers. The Voting Rights Act did not destroy state authority regarding the right to vote; it merely disrupted their vehicles ...


The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter Jan 2021

The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.

This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal constitution, they were drafted – and have been repeatedly rewritten and amended – to ...


The New Front In The Clean Air Wars: Fossil-Fuel Influence Over State Attorneys General- And How It Might Be Checked, Eli Savit Apr 2017

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.


Dismantling The Unitary Electoral System? Uncooperative Federalism In State And Local Elections, Michael T. Morley Feb 2017

Dismantling The Unitary Electoral System? Uncooperative Federalism In State And Local Elections, Michael T. Morley

Scholarly Publications

No abstract provided.


State Judges And The Right To Vote, Joshua A. Douglas Jul 2016

State Judges And The Right To Vote, Joshua A. Douglas

Joshua A. Douglas

State courts are paramount in defining the constitutional right to vote. This primacy of state courts exists in part because the right to vote is a state-based right protected under state constitutions. In addition, election administration is largely state-driven, with states regulating most of the rules for casting and counting ballots. State law thus guarantees—and state courts interpret—the voting rights that we cherish so much as a society. State courts that issue rulings broadly defining the constitutional right to vote best protect the most fundamental right in our democracy; state decisions that constrain voting to a narrower scope ...


The New Elections Clause, Michael T. Morley Jan 2016

The New Elections Clause, Michael T. Morley

Faculty Scholarship

No abstract provided.


State Judges And The Right To Vote, Joshua A. Douglas Jan 2016

State Judges And The Right To Vote, Joshua A. Douglas

Law Faculty Scholarly Articles

State courts are paramount in defining the constitutional right to vote. This primacy of state courts exists in part because the right to vote is a state-based right protected under state constitutions. In addition, election administration is largely state-driven, with states regulating most of the rules for casting and counting ballots. State law thus guarantees—and state courts interpret—the voting rights that we cherish so much as a society. State courts that issue rulings broadly defining the constitutional right to vote best protect the most fundamental right in our democracy; state decisions that constrain voting to a narrower scope ...


A Fugitive From The Camp Of The Conquerors: The Revival Of Equal Sovereignty Doctrine In Shelby County V. Holder, Vik Kanwar Apr 2015

A Fugitive From The Camp Of The Conquerors: The Revival Of Equal Sovereignty Doctrine In Shelby County V. Holder, Vik Kanwar

Journal of Race, Gender, and Ethnicity

No abstract provided.


Backsliding: The United States Supreme Court, Shelby County V. Holder And The Dismantling Of Voting Rights Act Of 1965, Bridgette Baldwin Apr 2015

Backsliding: The United States Supreme Court, Shelby County V. Holder And The Dismantling Of Voting Rights Act Of 1965, Bridgette Baldwin

Journal of Race, Gender, and Ethnicity

No abstract provided.


The Post-Shelby County Game, Steven R. Morrison Apr 2015

The Post-Shelby County Game, Steven R. Morrison

Journal of Race, Gender, and Ethnicity

No abstract provided.


One Step Forward, Two Steps Backward: How The Supreme Court’S Decision In Shelby County V. Holder Eviscerated The Voting Rights Act And What Civil Rights Advocates Should Do About It, Pamela Edwards Apr 2015

One Step Forward, Two Steps Backward: How The Supreme Court’S Decision In Shelby County V. Holder Eviscerated The Voting Rights Act And What Civil Rights Advocates Should Do About It, Pamela Edwards

Journal of Race, Gender, and Ethnicity

No abstract provided.


Demography And Democracy, Phyllis Goldfarb Apr 2015

Demography And Democracy, Phyllis Goldfarb

Journal of Race, Gender, and Ethnicity

No abstract provided.


Democracy, Foot Voting, And The Case For Limiting Federal Power, Ilya Somin Feb 2015

Democracy, Foot Voting, And The Case For Limiting Federal Power, Ilya Somin

Montana Law Review

No abstract provided.


(Mis)Trusting States To Run Election, Joshua A. Douglas Jan 2015

(Mis)Trusting States To Run Election, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article critically examines recent Supreme Court election law jurisprudence, with a particular eye toward cases involving state election administration—a hotbed of litigation at the Court in recent years. Election administration entails the rules of operating an election and encompasses laws such as voter identification requirements, regulation of primaries, and other "nuts-and-bolts" aspects of the voting process. The Article focuses primarily on the last decade, mainly because that is when states have increasingly enacted stricter election regulations, supposedly in the name of "election integrity," but more likely to gain partisan advantage for the ruling party. In addition, during the ...


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 Jan 2015

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 ...


Florida On Trial: Federalism In The 2000 Presidential Election, Jon L. Mills Nov 2014

Florida On Trial: Federalism In The 2000 Presidential Election, Jon L. Mills

Jon L. Mills

This article analyzes how Florida's state election laws operated during the aftermath of the 2000 presidential election. The intersection of law and politics in this controversy was critical. Political considerations affected decisions in both the Bush and Gore camps. The aftermath of the 2000 election found the federal government, the National Conference of State Legislatures, and the State of Florida (among others) commissioning task forces and committees to investigate and suggest election reforms. Ultimately, the State of Florida passed significant election reform legislation. On May 10, 2001, Florida enacted sweeping election reform legislation entitled the Florida Election Reform Act ...


The Roberts-Kennedy Court And Post-Political Democracy, Zephyr Teachout Feb 2014

The Roberts-Kennedy Court And Post-Political Democracy, Zephyr Teachout

Schmooze 'tickets'

This Essay explores the ideological underpinnings of the modern Supreme Court’s election law decisions, arguing that the Court does not have a strong commitment to federalism or to unfettered debate or to the mistrustful citizen. Instead, the opinions reveal a complacency about corruption and a narrow view of the role of citizens. The Essay is part of a volume on neoliberalism for Law and Contemporary Problems.


Reinventing Sovereignty?: Federalsim As A Constraint On The Voting Rights Act, Franita Tolson May 2012

Reinventing Sovereignty?: Federalsim As A Constraint On The Voting Rights Act, Franita Tolson

Vanderbilt Law Review

The legal landscape has changed significantly since Congress passed the Voting Rights Act of 1965 ("VRA" or "the Act"). Even though Congress amended the Act in 2006, these amendments have done little to address the new obstacles faced by minority communities who seek to expand their electoral opportunities.' Some of these obstacles are political, as partisan forces have often manipulated the Act for electoral gain, but the greatest obstructions have been judicial. The Supreme Court has strongly implied that Congress might violate principles of federalism by requiring states to preclear their redistricting plans with the Department of Justice; has held ...


Invisible Federalism And The Electoral College, Derek Muller Dec 2011

Invisible Federalism And The Electoral College, Derek Muller

Derek T. Muller

What role do States have when the Electoral College disappears? With the enactment of the National Popular Vote on the horizon and an imminent presidential election in which a nationwide popular vote determines the winner, States would continue to do what they have done for hundreds of years — administer elections. The Constitution empowers States to decide who votes for president, and States choose who qualifies to vote based on factors like age or felon status. This power of States, a kind of “invisible federalism,” is all but ignored in Electoral College reform efforts. In fact, the power of the States ...


The Vote From Beyond The Grave, Krysta R. Edwards Mar 2010

The Vote From Beyond The Grave, Krysta R. Edwards

William & Mary Law Review

No abstract provided.


Election Administration Reform And The New Institutionalism, Richard L. Hasen Jan 2010

Election Administration Reform And The New Institutionalism, Richard L. Hasen

Faculty Scholarship

One of the hallmarks of a mature democracy is professionalized, centralized, and nonpartisan election administration. It is hardly news that the United States does not fit this model, and that since the 2000 election meltdown culminating with the Supreme Court’s decision in Bush v. Gore, the country has faced biannual anxiety over whether the next meltdown is imminent. Some observers at first hoped the courts or Congress would spur election administration reform, but that has not happened. Now, some election law scholars have turned to institutional design, considering new institutions or mechanisms, such as amicus courts and electoral advisory ...


Countering The Majoritarian Difficulty, Amanda Frost Jan 2010

Countering The Majoritarian Difficulty, Amanda Frost

Articles in Law Reviews & Other Academic Journals

Most state court judges are elected to office, and thus must be attentive to voter preferences just like other elected officials. Critics of judicial elections fear that subjecting judges to majoritarian pressures jeopardizes the rights of disfavored groups and undermines the rule of law, and accordingly call for their abolition. The reality, however, is that judicial elections are firmly entrenched in thirty-eight states, and thus appear to be a permanent part of the legal landscape. This article suggests that the so-called “majoritarian difficulty” posed by elected judges can be tempered by regular interactions with appointed, life-tenured federal judges, who are ...


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 ...


Reflections On Bush V. Gore: The Role Of The United States Supreme Court, David Boies Jan 2006

Reflections On Bush V. Gore: The Role Of The United States Supreme Court, David Boies

Florida A & M University Law Review

No abstract provided.


The Case For Federal Anti-Gerrymandering Legislation, Brian O'Neill Apr 2005

The Case For Federal Anti-Gerrymandering Legislation, Brian O'Neill

University of Michigan Journal of Law Reform

Partisan gerrymandering is a political tradition the United States can no longer afford. Due in part to the effects of partisan gerrymandering, very few congressional elections are meaningfully competitive. This Note argues that partisan gerrymandering damages both the quality of American democracy and the federal system of the United States. This Note concludes that the important federal interests at stake warrant action by Congress to halt partisan gerrymandering. The Note further concludes that any action by Congress should incorporate the principles of federalism by resisting the temptation to micromanage and Congress should instead require state commissions to draft the boundaries ...


Florida On Trial: Federalism In The 2000 Presidential Election, Jon L. Mills Jan 2002

Florida On Trial: Federalism In The 2000 Presidential Election, Jon L. Mills

UF Law Faculty Publications

This article analyzes how Florida's state election laws operated during the aftermath of the 2000 presidential election. The intersection of law and politics in this controversy was critical. Political considerations affected decisions in both the Bush and Gore camps. The aftermath of the 2000 election found the federal government, the National Conference of State Legislatures, and the State of Florida (among others) commissioning task forces and committees to investigate and suggest election reforms.

Ultimately, the State of Florida passed significant election reform legislation. On May 10, 2001, Florida enacted sweeping election reform legislation entitled the Florida Election Reform Act ...


Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz Jan 2001

Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz

Articles

Lopez v. Monterey County is an odd decision. Justice O'Connor's majority opinion easily upholds the constitutionality of a broad construction of section 5 of the Voting Rights Act (VRA) in language reminiscent of the Warren Court. Acknowledging the "substantial 'federalism costs" resulting from the VRA's "federal intrusion into sensitive areas of state and local policymaking," Lopez recognizes that the Reconstruction Amendments "contemplate" this encroachment into realms "traditionally reserved to the States." Justice O'Connor affirms as constitutionally permissible the infringement that the section 5 preclearance process "by its nature" effects on state sovereignty, and applies section 5 ...