Election Law Commons^™

Let Us Not Be Intimidated: Past And Present Applications Of Section 11(B) Of The Voting Rights Act, Carly E. Zipper

Washington Law Review

As John Lewis said, “[the] vote is precious. Almost sacred. It is the most powerful non-violent tool we have to create a more perfect union.” The Voting Rights Act (VRA), likewise, is a powerful tool. This Comment seeks to empower voters and embolden their advocates to better use that tool with an improved understanding of its little-known protection against voter intimidation, section 11(b).

Although the term “voter intimidation” may connote armed confrontations at polling places, some forms of intimidation are much more subtle and insidious—dissuading voters from heading to the polls on election day rather than confronting them outright when …

Texas Disenfranchisement Of Felons, Michelle Baker

Quest

Policy Research Project

Research in progress for GOVT 2306: Honors Texas Government

Faculty Mentor: Tiffany Cartwright, Ph.D.

Michelle Baker wrote the following research paper as an assignment for my online GOVT 2306: Honors Texas Government class during the Fall 2020 semester. The class assignment helps students begin to formulate a classic policy paper, in which alternative policy options are discussed and analyzed, ultimately leading to a preferred policy option. Students submitted just a few paragraphs of the paper at a time over the course of the fall semester before finally pulling everything together in one cohesive research paper. As Michelle’s …

Countering The Big Lie: The Role Of The Courts In The Post Truth World, Edward D. Cavanagh

Faculty Publications

(Excerpt)

This Essay analyzes the role of the courts in handling Trump’s election lie. It argues that the courts were certainly correct in giving short shrift to Trump’s lawsuits, but further that the courts should have done more than simply dismiss Trump’s claims. Had the courts aggressively utilized existing tools to identify and punish prosecution of baseless claims, including Rule 11 of the Federal Rules of Civil Procedure and the courts’ inherent powers to control proceedings before them, the Trump election lie might well have been put to rest immediately before it could take root among die-hard Trump supporters. This …

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

Lewis & Clark Law Review

This Article provides the first comprehensive analysis of the numerous election law cases that the Supreme Court and the federal appellate courts decided in the lead up to the 2020 election. The picture is bleak. Instead of protecting the constitutional right to vote, the Supreme Court and lower federal appeals courts unduly deferred to state legislatures in how to run the election, with little concern for the difficulties voters faced during a pandemic. If the courts do not alter their jurisprudence, then the only solution may be robust federal legislation or a constitutional amendment that enshrines the right to vote …

Multiple Choice: How Instant Runoff Voting Improves Redistricting Under The Voting Rights Act, Aviel Menter, C.D. Alexander Evans

Touro Law Review

As currently interpreted, Section 2 of the Voting Rights Act (“VRA”) can be a double-edged sword for minority representation. Although it gives protected minority groups their own majority/minority districts, this can dilute minority influence in other districts. Recently, however, many jurisdictions have begun to adopt Instant Runoff Voting (“IRV”), a ranked-choice voting system where voters rank multiple candidates in order of preference. By letting voters express support for multiple candidates, IRV provides useful information about the behavior of minority groups that courts can use when enforcing the VRA. Specifically, ranked-choice voting systems can better show when a winning candidate supported …

The National Popular Vote On Trial, Keaton Barnes

Arkansas Law Review

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them …

The Illiberalization Of American Election Law: A Study In Democratic Deconsolidation, James A. Gardner

Journal Articles

For many years, the dominant view among American election law scholars has been that the U.S. Supreme Court’s constitutional jurisprudence of democratic practice got off to a promising start during the mid-twentieth century but has since then slowly deteriorated into incoherence. In light of the United States’ recent turn toward populist authoritarianism, that view needs to be substantially revised. With the benefit of hindsight, it now appears that the Supreme Court has functioned, in its management of the constitutional jurisprudence of democracy, as a vector of infection—a kind of super-spreader of populist authoritarianism.

There is, sadly, nothing unusual these days …

The Meaning, History, And Importance Of The Elections Clause, Eliza Sweren-Becker, Michael Waldman

Washington Law Review

Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause’s original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules.

But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving …

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

William & Mary Bill of Rights Journal

COVID-19 has wreaked havoc on so much of our lives, including how to run our elections. Yet the federal courts have refused to respond appropriately to the dilemma that many voters faced when trying to participate in the 2020 election. Instead, the courts—particularly the U.S. Supreme Court and the federal appellate courts—invoked a narrow test that unduly defers to state election administration and fails to protect adequately the fundamental right to vote.

In constitutional litigation, a law usually must satisfy a two-part test: (1) does the state have an appropriate reason for the law and (2) is the law properly …

Baby & Bathwater: Standing In Election Cases After 2020, Steven J. Mulroy

Dickinson Law Review (2017-Present)

The current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts’ treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not …

I Choose, You Decide: Checking The Judiciary From Within, Jeremy N. Sheff

Cardozo Law Review

Efforts to rein in partisanship (or the perception thereof) on the Supreme Court tend to focus either on what Ryan Doerfler and Samuel Moyn call “personnel reforms”—changes to the selection, appointment, or tenure of Justices—or on what they call “disempowering reforms”—changes that divert some of the judiciary’s authority to the political branches, for example via jurisdiction stripping. I propose a different—and perhaps complementary—reform, which would achieve some of the goals of both types of reform without requiring a constitutional amendment. I propose that the selection of a case for the Supreme Court’s discretionary appellate docket should be performed by a …

“A Dollar Ain’T Much If You’Ve Got It”: Freeing Modern-Day Poll Taxes From Anderson-Burdick, Lydia Saltzbart

Journal of Law and Policy

How much should it cost to vote in the United States? The answer is clear from the Supreme Court’s landmark opinion in Harper v. Virginia State Board of Elections—nothing. Yet more than fifty years later, many U.S. voters must jump over financial hurdles to access the franchise. These hurdles have withstood judicial review because the Court has drifted away from Harper and has instead applied the more deferential Anderson-Burdick analysis to modern poll tax claims—requiring voters to demonstrate how severely the cost burdens them. As a result, direct and indirect financial burdens on the vote have proliferated. Millions of voters …

Counting Heads: The Decennial Census And Adjustments To Enumeration, Jay E. Town

Notre Dame Law Review Reflection

The 2020 Decennial Census has become a lightning rod for litigious civil rights organizations, state attorneys general, and even members of Congress. At stake is the apportionment of representatives in the House of Representatives and the Electoral College divided amongst the several states. Furthermore, the “headcount” determines the allotment of $1.5 trillion in nondiscretionary federal dollars to be distributed to the various states based on the persons who are counted in each. The headcount is also used in redistricting of congressional districts. Make no mistake, litigation surrounds the manner in which the census arrives at its headcount after every census. …

Corporations "Pac" A Punch: Corporate Involvement's Influence In Elections And A Proposal For Public Campaign Financing In Ohio, Taylor Hagen

Cleveland State Law Review

In 2010, the United States Supreme Court in a 5-4 decision ruled that limiting corporate spending in elections violates the First Amendment right to free speech. With this decision, the Supreme Court overturned election spending restrictions that dated back more than a century. Before Citizens United v. FEC was decided, the Court had previously held that these restrictions were permissible because there is a governmental interest in preventing election and campaign corruption. Now, corporations may expend unlimited funds for outside election spending, to super PACs, and may even establish their own PACs. Increased corporate involvement in elections has deteriorated American …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Trump V. Mazars Usa, Llp: The Case Of The Chief Justice And The Congressional Subpoenas, Rodger D. Citron

Scholarly Works

No abstract provided.

Unravelling The Us Presidential Election, Lori A. Ringhand

Scholarly Works

One of the most perplexing things about US elections is the extent to which we litigate what in much of the rest of the world are routine nuts and bolts questions about how elections work. I had first-hand experience with this during the 2000 presidential election when I was living in the UK. Why, I constantly was asked, is the US Supreme Court deciding your presidential election?

It’s a good question, and also a timely one given how the current presidential election is unfolding.

Readying Virginia For Redistricting After A Decade Of Election Law Upheaval, Henry L. Chambers Jr.

University of Richmond Law Review

Until Virginians approved Constitutional Amendment 1 in November 2020, the Virginia Constitution required the General Assembly redraw Virginia’s state legislative and congressional electoral districts every ten years in the wake of the national census.1 Redistricting culminated in the adoption of legislation redefining those districts. If the redistricting process had worked as intended after the 2010 census, electoral districts would have been redrawn and adopted by the General Assembly in 2011, approved by the Governor, and used for the ensuing decade. The redistricting process did not work as the Virginia Constitution contemplated. The General Assembly redrew, and the Governor approved, state …

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.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The State Attorney General’S Duty To Advise As A Source Of Law, Winthrop Jordan

University of Richmond Law Review

This Comment seeks to help fill that gap by considering how a state attorney general’s duty to advise functions as a source of law, by proposing six general models of how the opinions of a state attorney general can alter the legal rights, duties, and relations of persons. In doing so, this Comment still seeks to acknowledge and respect the fact that each state’s individual constitution and traditions will create a unique role for its attorney general’s duty to advise in shaping state law.

Return Of The King: Corruption Backsliding In America, Pedro Gerson

Cardozo International & Comparative Law Review

The United States appears to be going through a crisis of corruption. However, it is hard to know whether this is a matter of appearance or if the country is at risk of high levels of corruption making a comeback. The Article applies the equilibrium model of corruptionthe leading social science account of how corruption operates-to the current U.S. system, and shows that the United States may indeed be backsliding. The potential for corruption to creep back up is due to more than the political moment. Rather, it is the result ofpolitics combined with the relatively powerless institutional controls for …

Brief Of Amici Curiae Michael L. Rosin, David G. Post, David F. Forte, Michael Stokes Paulsen, And Sotirios Barber In Support Of Presidential Electors, David F. Forte, Michael L. Rosin, David G. Post, Michael Stokes Paulsen, Sotirios Barber

Law Faculty Briefs and Court Documents

The Framers of the Constitution crafted the Electoral College to be an independent institution with the responsibility of selecting the President and Vice-President. Therefore, they intended each elector to exercise independent judgment in deciding whom to vote for. A state cannot revise the Constitution unilaterally by reducing the elector to a ministerial agent who must vote in a particular way or face a sanction. The question of each elector’s moral or political obligation is not before the Court. Nor is the desirability of the current electoral system. Rather, this case turns on what the Constitution allows, and what it prohibits. …

"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

Covid-19 And The Law: Elections, Richard Briffault

Faculty Scholarship

With one Supreme Court decision, lower federal and state court decisions, pending litigation, and proposals around the country for major changes in how elections are conducted, COVID-19 has already had and likely will continue to have a significant impact on election law.

The discussion that follows proceeds in two parts. The first addresses the initial consequences of COVID-19 as an electoral emergency. Voters were due to go to the polls in states around the country just as the pandemic was gathering force and governors and mayors were calling on people to stay at home and avoid large gatherings – which, …