Election Law Commons^™

De-Class-Ifying Microtargeted Political Advertising, Jacob Kovacs-Goodman

Fordham Law Voting Rights and Democracy Forum

In contemporary American politics, Big Tech companies provide sophisticated advertising interfaces that enable anyone to target specific voters by demographic. These companies defend their tools as “neutral” to evade culpability for discriminatory ads. Yet, such microtargeted advertising presents a significant threat to democracy. This Article advances a possible two-pronged solution to bar online platforms from targeting political ads based on a user’s protected class. First, this Article promotes a largely unexplored tactic: extending Title II of the Civil Rights Act into the digital space so that behavior that would be impermissibly discriminatory offline is not permitted online. Second, this Article …

A Government Of Laws And Not Of Men: Why Justice Brandeis Was Right To Assume Congress Can Restrain The President's Removal Power, Danielle Rosenblum

Fordham Law Voting Rights and Democracy Forum

Since the Founding, the extent of the president’s power to remove executive officials from office remains unsettled. While the Appointments Clause in Article II, Section 2 empowers Congress to participate in the hiring of executive officials, the United States Constitution’s text is silent on whether Congress can limit the president’s ability to fire such employees. The debate on the proper scope of the president’s removal power is significant because it serves as a proxy for a larger constitutional question: whether constraints on presidential power advance or sit in tension with democracy. This Article argues that Justice Brandeis was right to …

A Modern-Day 3/5 Compromise: The Case For Finding Prison Gerrymandering Unconstitutional Under The Thirteenth Amendment, Shana Iden

Fordham Law Voting Rights and Democracy Forum

Vestiges of slavery and systemic disenfranchisement of people of color persist in the United States. One of these remnants is the practice of prison gerrymandering, which occurs when government officials count incarcerated individuals as part of the population of the prison’s location rather than the individual’s home district. This Article argues that prison gerrymandering functions as a badge of slavery that should be prohibited under the Thirteenth Amendment.

First, this Article provides background on prison gerrymandering and charts its impact through history, particularly on Black communities. Moreover, this Article analyzes how litigation under the Fourteenth Amendment has not yielded meaningful …

A Constitutional Right To Early Voting, David Schultz

Fordham Law Voting Rights and Democracy Forum

Voting is a cost-benefit decision. Individuals are more likely to vote if the benefits of doing so outweigh the disadvantages. With early voting laws eased due to the COVID-19 pandemic, the 2020 election demonstrated that turnout increases when elected officials reduce voting costs. Despite all the benefits of early voting, there is no constitutional right, and it remains a privilege that state legislatures can revoke at will.

Since the 2020 election, state legislatures have proposed—and enacted—hundreds of bills to change voting rules. But with the intense partisan disagreement over voting, coupled with political polarization reaching an apex, these acts restricting …

The Looming Threat Of The Independent State Legislature Theory And The Erosion Of The Voting Rights Act: It Is Time To Enshrine The Right To Vote, Javon Davis

Fordham Law Voting Rights and Democracy Forum

Over the last decade, the emergence of an imperial United States Supreme Court—currently armed with the largest conservative majority since the 1930s—has radically reshaped federal voting rights protections. During the litigation surrounding the 2020 election, however, an obscure threat reemerged. The fringe independent state legislature (“ISL”) theory is a potentially revolutionary constitutional theory that could lead to widespread voter disenfranchisement. Proponents of the theory, including Supreme Court Justices, posit, in part, that the United States Constitution vests state legislatures with plenary power to construct rules for federal elections—unbound by state constitutions and free from state judicial review.

Once a refuge …

Moore V. Harper And The Consequential Effects Of The Independent State Legislature Theory, Chase Cooper

Fordham Law Voting Rights and Democracy Forum

In December 2022, the United States Supreme Court heard oral arguments in Moore v. Harper. The case addresses whether the North Carolina Supreme Court possesses the authority to strike down a redistricting map drawn by the state legislature. Petitioners contend that the state legislature has no such authority under the United States Constitution, citing a novel interpretation of the Elections Clause known as the “independent state legislature” (“ISL”) theory. The ISL theory is not a unified theory, but rather a constellation of related doctrinal positions that revolve around a core precept: ordinary governing principles by which state courts review …

Citizen Enforcement Laws Threaten Democracy, David A. Carrillo, Stephen M. Duvernay

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Rucho In The States: Districting Cases And The Nature Of State Judicial Power, Chad M. Oldfather

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

One Person, How Many Votes? Measuring Prison Malapportionment, Ian Bollag-Miller

Fordham Law Voting Rights and Democracy Forum

“One-person, one-vote” is a fundamental principle of democracy. In practice, however, vote distribution among population groups is often less than equal. Even in established democracies, prison malapportionment—the distribution of legislative seats by counting incarcerated people in their prisons’ districts rather than their home districts—is one example of a practice that distorts voter representation. Prison malapportionment allows less populous districts that house prisons to maximize their voting power at the expense of more densely populated districts from which many incarcerated people previously lived. While there has been significant scholarship on the causes and effects of prison malapportionment, there is no standard …

Depoliticizing The Supreme Court Through Term Limits: A Worthwhile Reform Effort, Kara King

Fordham Law Voting Rights and Democracy Forum

The United States Supreme Court is in a legitimacy crisis. Americans are losing faith in the Supreme Court as an independent branch of government. As a result, policymakers and academics have put forth several proposals to reform the Court. The concept of an eighteen-year term limit maintains some bipartisan support and stands out as the most likely reform. This Article argues that term limits could help depoliticize the nomination process, bring greater stability to the Court, and restore confidence in the Court.

Taking History Seriously: Marjorie Taylor Greene, Reflections On Progressive Lawyering, And Section 3 Of The Fourteenth Amendment, Andrew G. Celli Jr.

Fordham Law Voting Rights and Democracy Forum

History has lessons to teach, and lawyers can learn from and use history in ways other than by cherry-picking from it. This Article contends that, while American history may be vexed, progressive lawyers can fully embrace history and hold it up into the light for consideration, all in service of progressive ends.

This Article describes a recent litigation that illustrates the point. In March 2022, the Author, together with other lawyers and a non-partisan pro-democracy group, represented voters from Georgia’s fourteenth congressional district in their effort to disqualify U.S. Representative Marjorie Taylor Greene from the Georgia ballot—based upon Section 3 …

Updating Anderson-Burdick To Evaluate Partisan Election Manipulation, Andrew Vazquez

Fordham Law Voting Rights and Democracy Forum

This Article analyzes jurisprudence concerning the judicial review of election laws. It suggests that the United States Supreme Court’s approach should acknowledge the realities of political partisanship when reviewing challenged laws and regulations. Specifically, this Article proposes a judicial test to evaluate election laws for partisan biases using factors modeled on those employed by the Court in Gingles v. Thornburg. Simply put, the manipulation of election laws to pursue partisan advantages poses the greatest threat to our democracy. Accordingly, this Article concludes that protecting our democracy from election practices that benefit one party over another in the guise of …

An Anniversary Best Uncelebrated: The 75th Year Of The Presidential Succession Act Of 1947, Roy E. Brownell Ii, John Rogan

Fordham Law Voting Rights and Democracy Forum

On July 18, 1947, President Harry Truman signed the Presidential Succession Act into law. The 1947 Act placed the Speaker of the House and the Senate president pro tempore in the presidential line of succession. Seventy-five years later, the statute needs major revision. Although the 1947 Act has not been used, the nation’s good fortune may change at any moment, especially given ever-present threats to the health and safety of the president and vice president.

This Article argues that Congress should revise the 1947 law in several ways, most notably by making Cabinet secretaries, in most circumstances, the immediate successors …

Increasing Voter Investment In American Democracy: Proposals For Reform, Adam Drake

Fordham Law Voting Rights and Democracy Forum

Millions of Americans choose to stay home every election cycle. Polling suggests that these nonvoters are either apathetic with respect to the democratic process or feel alienated from the United States government. Reforms to the democratic system should focus on alleviating these sentiments, ultimately encouraging more voters to show up to the polls. As turnout increases, so too does the legitimacy and stability of the U.S. government.

With that goal in mind, this Article advocates for a five- prong approach to reforming the electoral system. The first proposed step is to eliminate unnecessary barriers to voting by establishing federal automatic …

Making It Harder To Challenge Election Districting, Erwin Chemerinsky

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

The Consent Of The Governed And The Right To Access The Ballot, John D. Feerick

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

I Hope Tilden Was Right, Jerry H. Goldfeder

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Updating Anderson-Burdick To Evaluate Partisan Manipulation

Voting Rights and Democracy Forum

This Article analyzes jurisprudence concerning the judicial review of election laws. It suggests that the United States Supreme Court’s approach should acknowledge the realities of political partisanship when reviewing challenged laws and regulations. Specifically, this Article proposes a judicial test to evaluate election laws for partisan biases using factors modeled on those employed by the Court in Gingles v. Thornburg. Simply put, the manipulation of election laws to pursue partisan advantages poses the greatest threat to our democracy. Accordingly, this Article concludes that protecting our democracy from election practices that benefit one party over another in the guise of …

Excessive Judicialization, Extralegal Interventions, And Violent Insurrection: A Snapshot Of Our 59th Presidential Election, Jerry H. Goldfeder

Fordham Law Review

The Symposium included in this issue of the Fordham Law Review provides scholars and lawyers with the opportunity to think about some of the most provocative issues related to the way we elect our chief executive. When first conceived, this Symposium was meant to expand and elevate the discourse. Many of the participating authors have thought and written about these matters for years. It was our hope that, after fifty-nine presidential elections, we could shape the debate—and perhaps reform the law—for our next presidential election, our country’s sixtieth. Little did we realize at the inception of this project that the …

Voting As Exclusion, Ava Ayers

Fordham Law Review

This Essay considers two prevalent narratives about voting. In one narrative, voting expresses the civic virtue of the voter. In another, voting is an expression of inclusion in our political community’s circle of membership. I argue that although both narratives are true, and important, there is a third narrative that shadows them both. In this third narrative, voting affirms the exclusion of millions of people from our political community. The stories we tell about voting are incomplete and, sometimes, harmful.

Election Observation Post-2020, Rebecca Green

Fordham Law Review

The United States is in the midst of a crisis in confidence in elections, despite the many process protections baked into every stage of election administration. Part of the problem is that few Americans know just how rigorous the protections in place are, and most Americans have no concept of how modern elections are run. Election observation statutes are intended to provide a window for members of the public to learn about and oversee the process and to satisfy themselves that elections are fair and that outcomes are reliable. Yet in 2020, in part due to unforeseen pandemic conditions, election …

Reducing Election Litigation, Derek T. Muller

Fordham Law Review

Which candidate’s name should be listed first on a ballot? Should inactive voters’ names appear printed in polling place books? Should elections be conducted exclusively by mail? Should online voter registration be available to prospective voters? When voters sign a petition to help a candidate appear on the ballot, must the petition’s circulator reside in the state? These are the questions that ordinary election administration rules answer. There might be better or worse rules. These rules might advance one set of benefits in exchange for another set of costs. They could benefit one candidate or group over another. Like every …

The Independent State Legislature Doctrine, Michael T. Morley

Fordham Law Review

The U.S. Constitution grants authority to both regulate congressional elections and determine the manner in which a state chooses its presidential electors specifically to the legislature of each state, rather than to the state as an entity. The independent state legislature doctrine teaches that, because a legislature derives its power over federal elections directly from the Constitution in this manner, that authority differs in certain important respects from the legislature’s general police powers that it exercises under the state constitution. Although the doctrine was applied on several occasions in the nineteenth century, it largely fell into desuetude in the years …

Reforms For Presidential Candidate Death And Inability: From The Conventions To Inauguration Day, John Rogan

Fordham Law Review

The 2020 presidential election involved several significant threats to the health and safety of the candidates. But dangers to presidential candidates and presidents-elect have been present before. Despite previous candidate vacancies and near misses, the procedures for how to address many of these contingencies have shortcomings. Some scenarios are left unaddressed. The policies for other situations might be difficult to use or could result in undemocratic outcomes. This Article discusses possible reforms for addressing disability or death of presidential candidates from the time they are nominated at their political parties’ conventions to when they are sworn into office on Inauguration …

How States Can Avoid Overcrowded Ballots But Still Protect Voter Choice, Richard Winger

Fordham Law Review

Since the beginning of government-printed ballots for federal and state offices in 1889, state legislatures have been wrestling with the problem of how many signatures should be required for independent candidates and new political parties to get on the ballot. Laws on this subject are very volatile; there is not a single instance in United States history in which applicable state laws were the same for two consecutive presidential elections. The volatility increased in 1968, when the U.S. Supreme Court ruled that overly strict ballot access laws for new parties and independent candidates violatetheU.S.Constitution. Sincethen,every state has been sued by …

Compulsory Voting And Black Citizenship, Ekow N. Yankah

Fordham Law Review

Protesting Black votes is part of our history of rejecting Black Americans as legitimate wielders of political power and contesting the fullness of Black citizenship. Obviously, hostility toward viewing Black Americans as deserving of the rights owed to other Americans is present in nearly every aspect of American life. But, among the oldest and most contentious hostilities—from the Civil War to Reconstruction to the Civil Rights Movement to contemporary voter suppression efforts—has been the resistance against Black votes. Any opportunity to quell this locus of racial animus calls for urgent address. Particularly, at this moment, when long-standing prophylactic measures such …

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

Fordham Law Review

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 …

Free And Fair: Judicial Intervention In Elections Beyond The Purcell Principle And Anderson-Burdick Balancing, Danika Elizabeth Watson

Fordham Law Review

The United States’s politically charged 2020 federal election, conducted in the midst of a global pandemic, seismically shook the fault lines of state and local elections administration nationwide. Voters, candidates, parties, states, and political campaigns brought hundreds of claims to the courts, seeking judicial intervention to protect equity in their voting rights. The 2020 pandemic election cases demonstrated that Equal Protection claims relying on the Anderson-Burdick balancing test are both overly reliant on judicial discretion and highly vulnerable to invalidation under the Purcell principle. This Note examines the equal protection challenges raised in courts throughout the country in 2020 to …

The Electoral College: Time For A Change?, John D. Feerick

Fordham Law Review

Fifty-three years ago, I wrote an article for the Fordham Law Review advocating for a popular vote for president. My experience serving as staff advisor to an American Bar Association (ABA) commission on Electoral College reform influenced my views. The House of Delegates authorized the commission in February 1966. A year later, after study and consideration, the ABA recommended such a reform, as did Senator Birch Bayh of Indiana, then serving as chair of the Senate Judiciary Committee’s subcommittee on constitutional amendments. This Article returns to the subject of reform by examining in Part I the elections of this century …

Visions Of The Republic Symposium: Voting With The Virus: Ensuring Democracy Via Bypassing The Excuse Requirements In Absentee Voting, Russell Spivak

Fordham Law Review Online

One of the many difficulties posed by measures undertaken to curb the spread of the COVID-19 pandemic may be an inability to vote. Should this pandemic bleed into the fall, gathering at polling places, for example, would contravene guidelines prohibiting large gatherings particularly in crammed quarters. As such, jurisdictions must act immediately to broaden the use of absentee voting. Unfortunately, seventeen states, either via statute or constitutional provision, presently require an “excuse” to vote absentee. This could theoretically pose a problem insofar as fear of contracting the disease or spreading it to others may or may not qualify. This Article …