Election Law Commons^™

Voting Rights: Litigating Materiality Under The Civil Rights Act, Michael T. Morley

Scholarly Publications

In recent years, plaintiffs have frequently invoked the Civil Rights Act's Materiality Provision as a basis for challenging state election laws. The Provision prevents states from denying a person's right to vote based on certain types of immaterial errors or omissions in his voter registration application or other election related filings. Historically, the Provision played an important role in combatting Jim Crow measures used to systematically disenfranchise African Americans. Today, it continues to protect voters from disenfranchisement based on minor, hypertechnical, picayune mistakes unrelated to their eligibility to vote. Some courts, however, have misinterpreted the Provision to prevent states from …

The Scope Of Election Litigation, Michael T. Morley

Scholarly Publications

One way to think about the scope of a case is based on the range of parties who are or must be involved in it. The broader a case's scope in this regard, the more burdensome and costly it can be for plaintiffs to file and the more complicated and time consuming it may be for a court to adjudicate. Requiring large numbers of parties to be involved in a case can sometimes effectively preclude otherwise meritorious suits from being filed. This is especially true in election law disputes which often arise under harried circumstances and can be subject to …

Bush V. Gore's Uniformity Principle And The 2020 Election, Michael T. Morley

Scholarly Publications

In Bush v. Gore, the Supreme Court established a Uniformity Principle for election administration, holding that the Equal Protection Clause prohibits arbitrary and disparate treatment of various voters participating in an election. Although the Court emphasized the limited scope of its holding, throughout the two decades that followed, lower courts have applied the Uniformity Principle in a variety of cases concerning the conduct of elections.

The principle was invoked in a wide range of cases throughout the 2020 election cycle, shedding further light on its contours. Some of these rulings may have been influenced by the unique circumstances of the …

Election Emergencies: Voting In Times Of Pandemic, Michael T. Morley

Scholarly Publications

Over the past century, two global pandemics have struck during American elections—the Spanish Flu of 1918 and COVID-19 in 2020. The legal system’s responses to these pandemics, occurring against very distinct constitutional backdrops concerning voting rights, differed dramatically from each other. These pandemics highlight the need for states to prepare to address not only public health crises, but election emergencies more broadly. States must adopt election emergency laws that both empower election officials to modify the rules of the electoral process as necessary to respond to these disasters, and also set forth “redlines,” identifying certain policies that, even in a …

An Untapped “Arsenal Of Power”: The Elections Clause, A Federal Election Administration Agency, And Federal Election Oversight, Zachary Newkirk

Florida State University Law Review

No abstract provided.

Republicans And The Voting Rights Act, Michael T. Morley

Scholarly Publications

No abstract provided.

Prophylactic Redistricting? Congress's Section 5 Power And The New Equal Protection Right To Vote, Michael T. Morley

Scholarly Publications

No abstract provided.

Election Emergencies: Voting In The Wake Of Natural Disasters And Terrorist Attacks, Michael T. Morley

Scholarly Publications

Our electoral system is vulnerable to terrorist attacks, natural disasters, and other calamities that can render polling places inaccessible, trigger mass evacuations, or disrupt governmental operations to the point that conducting an election becomes impracticable. Many states lack “election emergency” laws that empower officials to adequately respond to these crises. As a result, courts are frequently called upon to adjudicate the consequences of election emergencies as a matter of constitutional law, often applying vague, subjective, ad hoc standards in rushed, politically charged proceedings. This Article examines the legal steps various government actors took in response to terrorist attacks and natural …

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

Scholarly Publications

No abstract provided.

De Facto Class Actions? Plaintiff- And Defendant-Oriented Injunctions In Election Law, Voting Rights And Other Constitutional Cases, Michael T. Morley

Scholarly Publications

No abstract provided.

The New Elections Clause, Michael T. Morley

Scholarly Publications

No abstract provided.

Quick And Dirty: The New Misreading Of The Voting Rights Act, Justin Levitt

Florida State University Law Review

The role of race in the apportionment of political power is one of the thorniest problems at the heart of American democracy, and reappears with dogged consistency on the docket of the Supreme Court. Most recently, the Court resolved a case from Alabama involving the Voting Rights Act and the appropriate use of race in redistricting. But though the Court correctly decided the narrow issue before it, the litigation posture of the case hid the fact that Alabama is part of a disturbing pattern. Jurisdictions like Alabama have been applying not the Voting Rights Act, but a ham-handed cartoon of …

A "Checklist Manifesto" For Election Day: How To Prevent Mistakes At The Polls, Joshua A. Douglas

Florida State University Law Review

Mistakes happen—especially at the polls on Election Day. To fix this complex problem inherent in election administration, this Article proposes the use of simple checklists. Errors occur in every election, yet many of them are avoidable. Poll workers should have easy-to-use tools to help them on Election Day as they handle throngs of voters. Checklists can assist poll workers in pausing during a complex process to avoid errors. This is a simple idea with a big payoff: fewer lost votes, shorter lines at the polls, a reduction in post-election litigation, and smoother election administration. Further, unlike many other suggested election …

The Nineteenth Amendment Enforcement Power (But First, Which One Is The Nineteenth Amendment, Again?), Steve Kolbert

Florida State University Law Review

No abstract provided.

Contingent Constitutionality, Legislative Facts, And Campaign Finance Law, Michael T. Morley

Scholarly Publications

Many of the Supreme Court's important holdings concerning campaign finance law are not pure matters of constitutional interpretation. Rather, they are "contingent" constitution- al determinations: the Court's conclusions rest in substantial part on legislative facts about the world that the Court finds, intuits, or assumes to be true. While earlier commentators have recognized the need to improve legislative factfinding by the Supreme Court, other aspects of its treatment of legislative facts-particularly in the realm of campaign finance- require reform as well. Stare decisis purportedly insulates the Court's purely legal holdings and interpretations from future challenge. Factually contingent constitutional rulings should, …

The Law Of Democracy At A Crossroads: Reflecting On Fifty Years Of Voting Rights And The Judicial Regulation Of The Political Thicket, Franita Tolson

Florida State University Law Review

No abstract provided.

Legislative Delegations And The Elections Clause, Derek T. Muller

Florida State University Law Review

No abstract provided.

Rescuing Retrogression, Michael J. Pitts

Florida State University Law Review

No abstract provided.

Voting Is Association, Daniel P. Tokaji

Florida State University Law Review

No abstract provided.

The Coordination Fallacy, Michael D. Gilbert

Florida State University Law Review

This symposium piece tackles an important issue in campaign finance: the relationship between coordinated expenditures and corruption. Only one form of corruption, the quid pro quo, is constitutionally significant, and it has three logical elements: (1) an actor, such as an individual or corporation, conveys value to a politician, (2) the politician conveys value to the actor, and (3) a bargain links the two. Campaign finance regulations aim to deter quid pro quos by impeding the first or third element. Limits on contributions, for example, fight corruption by capping the value an actor can convey to a politician. What about …

Reining In The Purcell Principle, Richard L. Hasen

Florida State University Law Review

No abstract provided.

Contingent Constitutionality, Legislative Facts, And Campaign Finance Law, Michael T. Morley

Florida State University Law Review

Many of the Supreme Court’s important holdings concerning campaign finance law are not pure matters of constitutional interpretation. Rather, they are “contingent” constitutional determinations: the Court’s conclusions rest in substantial part on legislative facts about the world that the Court finds, intuits, or assumes to be true. While earlier commentators have recognized the need to improve legislative factfinding by the Supreme Court, other aspects of its treatment of legislative facts—particularly in the realm of campaign finance—require reform as well.

Stare decisis purportedly insulates the Court’s purely legal holdings and interpretations from future challenge. Factually contingent constitutional rulings should, in contrast, …

Residency And Democracy: Durational Residency Requirements From The Framers To The Present, Eugene D. Mazo

Florida State University Law Review

After years of struggle, we no longer require property ownership, employ poll taxes, or force citizens to take literary tests to vote. The franchise is now also open to women, African Americans, and other groups that were previously disenfranchised. However, our states still prevent citizens from voting if they fail to meet a durational residency requirement. The states also impose lengthy durational residency requirements on candidates seeking public office. This Article examines the history of America’s durational residency requirements. It looks at the debates of the framers at the Constitutional Convention, at how state durational residency requirements were broadened in …

Race, Shelby County, And The Voter Information Verification Act In North Carolina, Michael D. Herron, Daniel A. Smith

Florida State University Law Review

Shortly after the Supreme Court in Shelby County v. Holder struck down section 4(b) of the Voting Rights Act (VRA), the State of North Carolina enacted an omnibus piece of election- reform legislation known as the Voter Information Verification Act (VIVA). Prior to Shelby, portions of North Carolina were covered jurisdictions per the VRA’s sections 4 and 5—meaning that they had to seek federal preclearance for changes to their election procedures— and this motivates our assessment of whether VIVA’s many alterations to North Carolina’s election procedures are race-neutral. We show that in presidential elections in North Carolina black early voters …

Remedial Equilibration And The Right To Vote Under Section 2 Of The Fourteenth Amendment, Michael T. Morley

Scholarly Publications

The modern "voting wars" involve repeated legal challenges alleging that procedures aimed at protecting the electoral process, such as proof-of-citizenship requirements for registration and voter identification laws, violate the fundamental constitutional right to vote. In adjudicating such cases, courts make effectively subjective judgments about whether the challenged statutes or regulations make voting too burdensome.

Section 2 of the Fourteenth Amendment offers critical, and previously overlooked, insight into the scope of the right to vote. It imposes a uniquely severe penalty-reduction in representation in the House of Representatives and Electoral College-when that right is violated or abridged. 'remedial deterrence," a crucial …

The Intratextual Independent "Legislature" And The Elections Clause, Michael T. Morley

Scholarly Publications

Many states have delegated substantial authority to regulate federal elections to entities other than their institutional legislatures, such as independent redistricting commissions empowered to determine the boundaries of congressional districts. Article I’s Elections Clause and Article II’s Presidential Electors Clause, however, confer authority to regulate federal elections specifically upon State “legislatures,” rather than granting it to States as a whole. An intratextual analysis of the Constitution reveals that the term “legislature” is best understood as referring solely to the entity within each state comprised of representatives that has the general authority to pass laws. Thus, state constitutional provisions or laws …

Rethinking The Right To Vote Under State Constitutions, Michael T. Morley

Scholarly Publications

No abstract provided.

What Is A Tragedy Of The Commons? Overfishing And The Campaign Spending Problem, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

The Politics Of Ethics And Elections: Can Negative Campaign Advertising Be Regulated In Florida?, Cleveland Ferguson Iii

Florida State University Law Review

No abstract provided.

The Bench And The Ballot: Applying The Protections Of The Voting Rights Act To Judicial Elections, Brenda Wright

Florida State University Law Review

No abstract provided.