Election Law Commons^™

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 …

Postponing Federal Elections Due To Election Emergencies, Michael T. Morley

Washington and Lee Law Review Online

Federal Election Day didn’t just happen. Rather, it reflects the culmination of a series of federal laws enacted over the course of nearly seventy years. Each of those laws requires states to hold a different type of federal election on the same day. These statutes also grant states flexibility to hold federal elections at a later date if there is a “failure to elect” on Election Day. Based on a detailed examination of these provisions’ texts, legislative histories, and histories of judicial application, this Article explains that federal Election Day laws empower states to postpone or extend federal elections when …

Unwaivable: Public Enforcement Claims And Mandatory Arbitration, Myriam E. Gilles, Gary Friedman

Articles

This essay, written for a conference on the “pathways and hurdles” that lie ahead in consumer litigation, is the first to examine the implications of California’s recent jurisprudence holding public enforcement claims unwaivable in standard-form contracts of adhesion, and the inevitable clash with the U.S. Supreme Court’s decisional law interpreting the Federal Arbitration Act. With its rich history of rebuffing efforts to deprive citizens of public rights through private contract, California provides an ideal laboratory for exploring this escalating conflict.

Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey

Seattle University Law Review

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Politicians As Fiduciaries: Public Law V. Private Law When Altering The Date Of An Election, Steven J. Cleveland

Washington and Lee Law Review

In the 2019 decision Rucho v. Common Cause, the U.S. Supreme Court concluded that federal challenges to partisan gerrymandering—a practice yielding election results that “reasonably seem unjust”—were non-justiciable. If partisan gerrymandering claims are not federally justiciable, and if that conclusion emboldens politicians, how else might incumbents manipulate election mechanics to preserve their political advantage? This Article explores one possibility that was briefly mentioned by the Rucho majority: the strategic advancement or delay of the date of a federal election. The strategic shift of election day is not simply a theoretical problem. Foreign politicians have strategically altered their election days …

The Support-Or-Advocacy Clauses, Richard Primus, Cameron O. Kistler

Articles

Two little known clauses of a Reconstruction-era civil rights statute are potentially powerful weapons for litigators seeking to protect the integrity of federal elections. For the clauses to achieve their potential, however, the courts will need to settle correctly a contested question of statutory interpretation: do the clauses create substantive rights, or do they merely create remedies for substantive rights specified elsewhere? The correct answer is that the clauses create substantive rights.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A New Old Solution: Why The United States Should Vote By Mail-In Ballot, Annie Barouh

Seattle Journal for Social Justice

No abstract provided.

The Legal History Of State Legislative Vacancies And Temporary Appointments, Tyler Yeargain

Journal of Law and Policy

We love paying attention to special elections. They operate as catharsis for opposition parties and activists, easily serve as proxies for how well the governing party is doing, and are ripe for over-extrapolation by prognosticators. But in thirty states and territories throughout the United States, state legislative vacancies are filled by a combination of special elections and temporary appointments. These appointment systems are rarely studied or discussed in academic literature but have a fascinating legal history that dates back to pre-Revolutionary America. They have substantially changed in the last four centuries, transitioning from a system that, like the Electoral College, …

The Great Holdup: How The Senate And The Filibuster Thwart Gun Legislation Most Americans Want, William G. Dauster

Legislation and Policy Brief

No abstract provided.

Making Constitutional Sense: A Modal Approach To California's Proposition 66, Alan Romero

Loyola of Los Angeles Law Review

For years, the California Supreme Court has adopted a deferential posture when reviewing state constitutional challenges to a ballot initiative. The decision in Briggs v. Brown underscored the degree to which courts are willing to avoid striking down ballot initiatives on constitutional grounds, such as by broadly construing the initiative’s language to avoid constitutional problems. In construing the language of Proposition 66 to avoid separation of powers problems, however, Briggs effectively re-interpreted central pillars of Proposition 66 in ways rendering it unrecognizable to Californians who cast votes for and against the initiative. Such recasting of ballot initiatives raises fundamental jurisprudential …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

"Inciting A Riot": Silent Sentinels, Group Protests, And Prisoners' Petition And Associational Rights, Nicole B. Godfrey

Seattle University Law Review

This Article argues for increased legal protections for prisoners who choose to engage in group protest to shed light on the conditions of their incarceration. A companion piece to a similar article that focused on prisoner free speech rights, this Article uses the acts of protest utilized by the Silent Sentinels to examine why prisoners’ rights to petition and association should be strengthened. By strengthening these rights, the Article argues that we will advance the values enshrined by the First Amendment’s Petition Clause while simultaneously advancing the rights of the incarcerated millions with little to no political power.

The Article …

Black Women And Girls And The Twenty-Sixth Amendment: Constitutional Connections, Activist Intersections, And The First Wave Youth Suffrage Movement, Mae C. Quinn

Seattle University Law Review

On this 100th anniversary of the Nineteenth Amendment—and on the cusp of the fiftieth anniversary of the Twenty-sixth Amendment—this article seeks to expand the voting rights canon. It complicates our understanding of voting rights history in the United States, adding layers to the history of federal constitutional enfranchisement and encouraging a more intersectional telling of our suffrage story in the days ahead.

Thus, this work not only seeks to acknowledge the Twenty-sixth Amendment as important constitutional content, as was the goal of the article I wrote with my law student colleagues for a conference held at the University of Akron …

Does The Woman Suffrage Amendment Protect The Voting Rights Of Men?, Steve Kolbert

Seattle University Law Review

This Article—part of the Seattle University Law Review’s symposium on the centennial of the ratification of the Woman Suffrage Amendment—examines that open possibility. Concluding that the Nineteenth Amendment does protect men’s voting rights, this Article explores why and how that protection empowers Congress to address felon disenfranchisement and military voting. This Article also examines the advantages of using Nineteenth Amendment enforcement legislation compared to legislation enacted under other constitutional provisions.

Part I discusses the unique barriers to voting faced by voters with criminal convictions (Section I.A) and voters in the armed forces (Section I.B). This Part also explains how existing …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

The Shaw Claim: The Rise And Fall Of Colorblind Jurisprudence, Molly P. Matter

Seattle Journal for Social Justice

No abstract provided.

When Soft Law Meets Hard Politics: Taming The Wild West Of Nonprofit Political Involvement, Lloyd Hitoshi Mayer

Journal of Legislation

Beginning in the 1990s and continuing today, many of the legal and psychological barriers to nonprofits becoming involved in electoral politics have fallen. At the same time, political divisions have sharpened, causing candidates, political parties, and their supporters to scramble more aggressively for any possible edge in winner-take-all political contests. In the face of these developments, many nonprofits have violated the remaining legal rules applicable to their political activity with little fear of negative consequences, especially given vague rules and a paucity of enforcement resources. Such violations include under reporting of political activity in government filings, fly-by-night organizations that exist …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Fool Me Once... The Need For Federal Legislation To Remedy Fraud And Misrepresentation In Ballot Initiatives That Negatively Affect Minority Communities, Jessica George

Journal of Civil Rights and Economic Development

(Excerpt)

This Note proposes new federal legislation to provide relief for voters who might be negatively affected by fraud and deception at any phase of a ballot initiative, including the signature-gathering process. Ballot initiatives are a significant part of the democratic process. They must be protected from fraud, especially when those practices result in initiatives that harm specific minority group interests. This legislation will give deceived voters a cause of action to stop the effect of a ballot initiative before it negatively impacts them. Voters can bring a civil action in federal court for preventive relief, including a permanent or …

A Conversation On Learning From The History Of The Civil Rights Movement, Walter F. Mondale

Minnesota Journal of Law & Inequality

Introduction & Abridged Transcript, The Summit for Civil Rights, November 10, 2017

The Next Reapportionment Revolution, Ashira Ostrow

Indiana Law Journal

In the 1960s, the Supreme Court famously imposed the one-person, one-vote requirement on federal, state, and local legislatures. The doctrine rapidly resolved the problem of malapportioned districts. Within just a few years, legislatures across the nation were reapportioned to equalize the population between districts. Sadly, however, the national commitment to equal-population districts has led directly to the current crisis of political gerrymandering. The boundaries of equal-population districts must be redrawn every ten years to maintain population equality. Even with rigid adherence to population requirements, district boundaries are easily manipulated to secure incumbent seats and advance partisan interests. Redistricting is rightly …

Guaranteeing The Right To Vote For Twenty-First Century America, Brandon Haase

Journal of Legislation

No abstract provided.

Voting Realism, Gilda R. Daniels

All Faculty Scholarship

Since Shelby County v. Holder, the country has grown accustomed to life without the full strength of the Voting Rights Act. Efforts to restore Section 4 have been met with calls to ignore race conscious remedies and employ race neutral remedies for modern day voting rights violations. In this new normal, the country should adopt “voting realism” as the new approach to ensuring that law and reality work to address these new millennium methods of voter discrimination.

The Hatch Act Modernization Act: Putting The Government Back In Politics, Shannon D. Azzaro

Fordham Urban Law Journal

No abstract provided.

A National Model Faces New Challenges: The New York City Campaign Finance System And The 2013 Elections, Janos Marton

Fordham Urban Law Journal

No abstract provided.

Empowering Small Donors: New York City’S Multiple Match Public Financing As A Model For A Post-Citizens United World, Amy Loprest, Bethany Perskie

Fordham Urban Law Journal

No abstract provided.

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 …