Election Law Commons^™

Online Voting: Should Ohio Adopt Online Voting For Voters With Disabilities?, Audrey Mcconihe

Journal of Law and Health

This Note argues that Ohio should implement a limited online voting system for voters with disabilities in order to expand meaningful access to the voting while preserving election integrity. Drawing on the Americans with Disabilities Act, the Rehabilitation Act of 1973, the Voting Rights Act of 1965, and the Help America Vote Act, this Note contends that Ohio’s current absentee voting framework continues to impose substantial barriers on disabled voters by denying many individuals the ability to cast ballots privately, independently, and safely.

The Note examines how the COVID-19 pandemic exposed longstanding deficiencies in American voting infrastructure, particularly for disabled …

The Pursuit Of Municipal Sovereignty: How The Ohio Legislature Is Attempting To Violate The Right To Local Self-Governance, Cole Sundermann

Cleveland State Law Review

This Note examines the Ohio Legislature’s recent efforts to undermine the constitutional right to local self-governance guaranteed by the Ohio’s home rule amendment within the Ohio Constitution. By focusing on Senate Bills 91, 137, and 158, it analyzes the legislative initiatives aimed at preempting municipal powers to implement participatory budgeting and ranked-choice voting systems. These bills exemplify a broader trend of the Legislature’s attempt at eroding municipal autonomy in Ohio, cutting against the principles of local sovereignty established by the 1912 Constitutional Convention. The Note argues that such preemption efforts violate the core right to self-governance as interpreted by the …

The Decline Of Representation Reinforcement In The Supreme Court: Increasing Deference To The Political Process, Jonathan L. Entin

Cleveland State Law Review

The Supreme Court has often interpreted the Constitution with an eye toward ameliorating failures of the political process. Over the past two decades, however, the Court has retreated from that concern with representation reinforcement. This article examines decisions upholding restrictive voter identification laws, making it more difficult to prove violations of the Voting Rights Act, and preventing federal courts from hearing claims of partisan gerrymandering. Some decisions that seem sympathetic to failures of the political process will not really promote representation reinforcement, and the Court’s most recent cases further reinforce the Court’s skepticism of claims of failures of the political …

Threading The Needle In Extreme Partisan Gerrymandering Cases, Michael Gentithes

Cleveland State Law Review

Recent Supreme Court jurisprudence paints a grim picture for future reform to address extreme partisan gerrymandering. The decisions in Rucho v. Common Cause and Moore v. Harper appear to foreclose progress at both the federal and state level. Reformers must neither create unmanageable legal standards for adjudication in federal litigation, nor ask state courts to transgress ordinary bounds of judicial review when interpreting state laws that might address gerrymandering.

But there remains a path forward that focuses on clear and detailed state constitutional mandates to curb gerrymandering practices. Beneath their rhetoric, these decisions support clear legal rules over broader democratic …

Returning The House Of Representatives To The People: An Apportionment Amendment Proposal Advocating For The Cube Root Rule, Michael Didomenico

Et Cetera

Since the approval of the Permanent Apportionment Act of 1929, the number of representatives in the United States House of Representatives has been capped at 435. While the “People’s House” has seen no growth since 1929, the United States population has nearly tripled since that time to 332 million people in 2022. Without additional representatives to accommodate this larger population, Americans have diluted voting power, representatives are more distant from the constituents they supposedly represent, partisanship stonewalls any productive legislation from being passed, an imbalanced Electoral College clouds the will of the people in selecting their president, and a lack …

Reforming State Electoral College Laws To Depolarize American Politics, M. Akram Faizer

Cleveland State Law Review

Brnovich v. Democratic National Committee involved the Supreme Court gutting the remaining vestiges of the Voting Rights Act (VRA), such that jurisdictions will have free rein to impose partisan burdens on franchise rights that have a disproportionate negative effect on racial minority voters who, based on racial political polarization, prefer Democratic Party candidates over their Republican opponents. Brnovich follows the highly divisive 2020 presidential election that Joe Biden won against former President Trump based on very narrow margins in highly contested swing states, notwithstanding a nationwide popular margin of more than 8 million votes. This blurring of the lines between …

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 …

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. …

Notice, Due Process, And Voter Registration Purges, Anthony J. Gaughan

Cleveland State Law Review

In the 2018 case of Husted v. A. Philip Randolph Institute, a divided United States Supreme Court upheld the procedures that Ohio election authorities used to purge ineligible voters from the state’s registration lists. In a 5-4 ruling, the majority ruled that the Ohio law complied with the National Voter Registration Act of 1993 (NVRA) as amended by the Help America Vote Act of 2002 (HAVA). This Article contends that the controlling federal law—the NVRA and HAVA—gave the Supreme Court little choice but to decide the case in favor of Ohio’s secretary of state. But this article also argues …

A Citizen's Guide To Redisticting Reform Through Referendum, Grayson Keith Sieg

Cleveland State Law Review

This Note proposes to explain the construction and political history of the 2012 Ohio Ballot Issue 2, extract lessons learned from its defeat, and, using those lessons, construct an alternative model referendum for congressional redistricting reform. What events led up to the November General Election defeat? Part II explores the history of redistricting and referendum. I also include a discussion on the various models of citizens redistricting commissions, including those adopted in California and Arizona (from which Ohio Issue 2 was largely borrowed), as well as recent constitutional challenges to citizens redistricting commissions. In Part III, I discuss the lessons …

Foreigners United: Foreign Influence In American Elections After Citizens United V. Federal Election Commission, Corey R. Sparks

Cleveland State Law Review

This Note argues that the majority’s decision in Citizens United allows foreign nationals to circumvent the Congressional ban on influencing American elections, and that Citizens United should be reconsidered in light of this fact, as well as the compelling government interest in preventing such circumvention, and preserving the integrity of the electoral process. Part II provides an overview of the Congressional ban and Citizens United’s relationship to its circumvention. Part III.A analyzes the methods by which foreign nationals can circumvent the ban in order to influence American elections. Part III.B proposes both judicial and legislative solutions to the problem of …

Perfect Is The Enemy Of Fair: An Analysis Of Election Day Error In Ohio's 2012 General Election Through A Discussion Of The Materiality Principle, Compliance Standards, And The Democracy Canon, Eric H. Kearney, Pavan V. Parikh, Bethany E. Sanders

Cleveland State Law Review

The continual change in and review of election systems have not overcome the reality that elections systems, including Ohio’s system, could not weather a close or controversial election without delay, litigation, or doubt as to the result. If such a conflict would arise, the actions taken in polling places across the state could be critical in determining a victor within the state and possibly the nation. Ohio, like many states, has responded to this circumstance with an incredibly technical and rule driven approach to election administration. This approach to elections administration is deficient for two primary reasons: (1) it refuses …

Buying The Electorate: An Empirical Study Of The Current Campaign Finance Landscape And How The Supreme Court Erred In Not Revisiting Citizens United, William Alan Nelson Ii

Cleveland State Law Review

The Article discusses how the Supreme Court erred by summarily reversing the Montana Supreme Court’s decision in Western Tradition Partnership v. AG and not revisiting its holding in Citizens United v. FEC. The Article begins by discussing the holding in the Western Tradition Partnership case and analyzing both the majority and dissenting opinions. The Article then analyzes how the Montana Supreme Court distinguished Citizens United, with the Court specifically looking at the “unique” political history in Montana and finding that Montana’s ban on corporate independent political spending served a compelling state interest and was narrowly tailored to that interest. The …

Judicial Protection Of Popular Sovereignty: Redressing Voting Technology, Candice Hoke

Law Faculty Articles and Essays

My analysis seeks to underscore the gravity of technologically threatened constitutional voting rights and values, implicating both individual rights to vote and the structural promise of popular sovereignty. Resolution of the dispute over the meaning of Fourteenth Amendment17 principles properly derived from Bush v. Gore18 will be pivotal to assuring meaningful voting rights in the information society. If the Court should hold the Fourteenth Amendment to embrace a deferential standard of review or arduous intent requirements, allowing state political branches to persist in choosing voting technologies based on scientifically unfounded premises that do not achieve classic components of voting rights, …

Voting Technology And The Quest For Trustworthy Elections, Candice Hoke

Law Faculty Contributions to Books

This chapter reviews four dimensions of the still-unresolved voting technology quandary. It begins by briefly reviewing the Florida Bush v. Gore background that, combined with the tradition of state governmental control over election administration, spawned the contours and limitations of new federal regulatory apparatus. It also surveys some illustrative voting system malfunctions and their consequences surfacing predominantly from 2009–12.

The second part of this chapter, Federal Compulsion to Adopt Software-Based Voting Technologies, explains the misconceptions about software and digital equipment that led to both the flawed federal mandates and the ineffectual regulatory structure.

The third part of this chapter, Litigation …

Political Gangsters: The Future Of Racketeering Law In Politics Note, Jillian Henzler

Cleveland State Law Review

Racketeering law and election restrictions are two areas of law that are not typically connected. Previous to the landmark decision in Citizens United, the chances of finding racketeering within election law were probably very slim.The corruption created by this new ruling is a fear that the government has been trying to combat for over a century. Not only will the effects of this new rule increase the appearance of corruption, this corruption may rise to a criminal level if racketeering action actually takes place. The ever-changing and expanding definition of racketeering under the Racketeering Influenced and Corrupt Organizations Act shows …

Comments On Expanding Civic Participation In Voting By Expanded Use Of The Internet, Candice Hoke

Law Faculty Presentations and Testimony

Hoke's comments to the FCC on expanding civic participation in voting by expanded use of the Internet. Hoke recommends that the FCC not become involved in election regulatory issues concerning the Internet, but will support a different federal regulatory agency with national security and technical-cybersecurity expertise receiving primary jurisdiction over election cybersecurity.

E-Voting And Forensics: Prying Open The Black Box, Candice Hoke, Sean Peisert, Matt Bishop, Mark Graff, David Jefferson

Law Faculty Articles and Essays

Over the past six years, the nation has moved rapidly from punch cards and levers to electronic voting systems. These new systems have occasionally presented election officials with puzzling technical irregularities. The national experience has included unexpected and unexplained incidents in each phase of the election process: preparations, balloting, tabulation, and reporting results. Quick technical or managerial assessment can often identify the cause of the problem, leading to a simple and effective solution. But other times, the cause and scope of anomalies cannot be determined. In this paper, we describe the application of a model of forensics to the types …

Voting And Registration Technology Issues: Lessons From 2008, S. Candice Hoke, David Jefferson

Law Faculty Contributions to Books

This chapter reviews the 2008 field performance and the scientific assessments of both voting systems and the statewide voter-registration databases. The federal Help America Vote Act (HAVA) mandated each of these technologies. Despite definitive scientific studies that documented grave security deficiencies that can cause voting systems to produce inaccurate vote tallies and “winners” who actually had fewer votes, these systems continue to be deployed. The Chapter traces the regrettable decisions on election technologies to a poorly designed regulatory structure and staffing, which continue to underweight and misunderstand security issues in election technologies.

Aligning Judicial Elections With Our Constitutional Values: The Separation Of Powers, Judicial Free Speech, And Due Process, Jason D. Grimes

Cleveland State Law Review

This Note consists of five Parts. Part II traces the historical development of state judicial elections from the perspective of the Framers' doctrine of separation of powers. It shows that judicial elections were borne more of historical contingency than constitutional design. Part II then assesses the recent history of elections to the Ohio Supreme Court. It determines that Ohio's judicial elections share two problems with many other states: millions of dollars given to judicial candidates by special interests likely to appear before the court, and candidates' broad freedom of speech to earn the political and financial support of these special …

Resolving The Unexpected In Elections: Election Officials' Options, S. Candice Hoke, Matt Bishop, Mark Graff, David Jefferson, Sean Peisert

Law Faculty Reports and Comments

This paper seeks to assist election officials and their lawyers in effectively handling the technical issues that can be difficult to understand and analyze, allowing them to protect themselves and the public interest from unfair accusations, inaccuracies in results, and conspiracy theories. The paper helps to empower officials to recognize which types of voting system events and indicators need a more structured analysis and what steps to take to set up the evaluations (or forensic assessments) using computer experts.

Documentation Assessment Of The Diebold Voting System, S. Candice Hoke, Dave Kettyle

Law Faculty Reports and Comments

The California Secretary of State commissioned a comprehensive, independent evaluation of the electronic voting systems certified for use within the State. This team, working as part of the “Top to Bottom” Review (“TTBR”), evaluated the documentation supplied by Diebold Election System, Inc.

Collaborative Public Audit Of The November 2006 General Election, S. Candice Hoke, Collaborative Audit Committee

Law Faculty Reports and Comments

We hope that this Audit Report will assist the Ohio Secretary of State, all Ohio local Boards of Election, election reform organizations, and other election officials nationwide in seeing how an independent audit process can be created and function at the local level. Additionally, we hope the public will recognize that this Report contains the kind of information that all election administrative agencies need to better achieve the public charge for producing accurate election results and to facilitate sound improvements in election administrative practices.

Testimony Before The U.S. House Of Representatives, Elections Subcommittee Of The House Administration Committee, Concerning The Importance Of Independent Post-Election Auditing And Reviewing Impediments To Election Auditing And Greater Transparency., Candice Hoke

Law Faculty Presentations and Testimony

Mandatory election audits are a critical step for restoring public confidence in the electoral system and for learning what problems exist (in equipment, systems, and personnel) so that they might be effectively corrected. Unfortunately, the promise of auditing will be severely undermined if the federal auditing entity lacks independence from the election administrative authority. Secretaries of State can play a number of crucial additional roles that will facilitate efficient and effective election audits, but because of the appearance of conflicts of interest should not be supervising and conducting federal audits. The federal audit effort will be greatly enhanced if the …

Final Report Of The Cuyahoga County Election Review Panel, S. Candice Hoke, Ronald B. Adrine, Tom J. Hayes

Law Faculty Reports and Comments

The Panel was charged with identifying the deficiencies in the May 2, 2006 Cuyahoga County election, ascertain the causes and contributing factors of those deficiencies and provide recommendations to remedy the deficiencies.

Had Enough In Ohio - Time To Reform Ohio's Judicial Selection Process, Bradley Link

Cleveland State Law Review

This note will examine the problems that the election of state judges creates, as well as the inadequacies of the current model of merit selection. I propose that Ohio should adopt an appointive method of selecting judges, which will utilize a judicial eligibility commission as outlined by the American Bar Association similar to the nominating commissions commonly found in merit selection plans but which will do away with the commonly found retention election. Ohio needs to change the manner in which state judges are selected in order to bring confidence in the state judiciary, and to ensure that the most …

Ballot Format: Must Candidates Be Treated Equally , Richard Winger

Cleveland State Law Review

This article's purpose is to explore and discuss a major inequality currently plaguing the realm of ballot format-the non-uniformed partisan labeling of election ballots. This will be accomplished by answering the following question: if a ballot lists partisan labels for some candidates must it list similar labels for all? This article endorses the idea that an election ballot should be fairly constructed. Governments preparing a voting ballot so its design does not significantly disadvantage any class of listed candidates seems perfectly reasonable. Despite this seemingly logical approach, some state laws provide that certain classes of candidates are entitled to preferential …

One Person-One Vote Round Iii: Challenges To The 1980 Redistricting, Robert J. Van Der Velde

Cleveland State Law Review

Ever since the United States Supreme Court entered the "political thicket" of redistricting and reapportionment courts and legislatures have been struggling with issues relating to the Court's mandate of "one person, one vote." The re-drawing of congressional and legislative district boundaries after the 1980 census was only the third time that district boundaries have been drawn according to the Supreme Court's mandate of "one person-one vote." This Article discusses the legal requirements of one person-one vote and the continuing evolution of the legal standards in this area. Part II analyzes the evolution of one person-one vote doctrine in the Supreme …

Constitutional Issues In The Regulation Of The Financing Of Election Campaigns, Archibald Cox

Cleveland State Law Review

The decisions sustaining campaign expenditures by corporations and organized groups are libertarian in the superficial sense that they sustain claims under the first amendment. Their effect, however, is to increase the influence of organized groups, especially of groups with access to money, and to diminish the voice of the individual. If liberty means the opportunity of the individual man or woman to express himself or herself in a society in which ideas are judged principally by their merit, increasing the relative influence of organizations and shrinking the attention paid to individual voices means a net loss of human freedom.

Ohio Residency Law For Student Voters - Its Implications And A Proposal For More Effective Implementation Of Residency Statutes , Jonathan D. Reiff

Cleveland State Law Review

The task is to evaluate the traditional common law tests of domicile, many of which are outmoded, and to select those which are compatible with the new constitutional requirements of real fairness and equality in order to lay a firm foundation for the accomplishment of the original purposes of residency law in the modern world. Furthermore, the theoretical problems involved -constitutional exposition, common law analysis, statutory construction, and governmental policy- need to be synthesized into a system that is easily implemented by the Secretary of State, easily applied by local boards of election, and finally, easily understood by all new …