Election Law Commons^™

What's The Harm In (Partisan) Gerrymandering? Collective Vs. Dyadic Accounts Of Representational Disparities, Sanford C. Gordon, Douglas M. Spencer, Sidak Yntiso

Publications

Traditional approaches for documenting the harm of gerrymandering emphasize collective representation by legislatures, minimizing the relationship between individual voters and their respective representatives. Federal courts have struggled to map collective accounts onto cognizable constitutional harms, reflecting a discomfort evaluating a system of representation inescapably rooted in geographic districts using diagnostics that treat districts and their boundaries as an inconvenience rather than an intrinsic feature. A normative account of representation and accountability rooted in the dyadic relationship between voters and their legislators addresses the exact harms that courts have articulated yet struggled to substantiate. We derive a formal model of dyadic …

Can The Law Of Democracy Save Democracy?, Helen L. Norton

Publications

No abstract provided.

Standing For Elections In State Courts, Miriam Seifter, Adam B. Sopko

Publications

Litigation has become a fixture of electoral contests. Litigants today often challenge every step of an election, from the results themselves to picayune aspects of administration. In response to this deluge, some courts have rejected election lawsuits on standing grounds. Such rulings may be unsurprising in federal court, given the tension between the federal standing doctrine's injury requirements and the generalized nature of many election disputes. But most recent election cases take place in state court, where neither Article III nor the premises animating federal standing doctrine apply. State courts need election justiciability theories of their own.

This Article explores …

Redistricting’S Ultimate Antidote, Douglas M. Spencer

Publications

No abstract provided.

The Right To Vote Securely, Sunoo Park

University of Colorado Law Review

American elections currently run on outdated and vulnerable technology. Computer science researchers have shown that voting machines and other election equipment used in many jurisdictions are plagued by serious security flaws, or even shipped with basic safeguards disabled. Making matters worse, it is unclear whether current law requires election authorities or companies to fix even the most egregious vulnerabilities in their systems, and whether voters have any recourse if they do not.

This Article argues that election law can, does, and should ensure that the right to vote is a right to vote securely. First, it argues that constitutional voting …

Electoral Maintenance, Douglas M. Spencer

Publications

According to the U.S. Supreme Court, the right to vote is fundamental because it is preservative of all rights, and yet in many cases legal protections for the right to vote fall short of protections for the other rights that voting is meant to preserve. Redefining the right to vote cannot solve this problem alone. Election administration has at least as much consequence on the right to vote as any particular definition or legal theory. In Democracy’s Bureaucracy, Michael Morse draws our attention to one of the most important yet understudied issues of election administration: voter list maintenance. In addition …

Temporal Buffer Zones: The Constitutional Case For Regulating Political Speech Immediately Prior To Elections, Kiel Brennan-Marquez, Douglas M. Spencer

Publications

The First Amendment forbids most limits on political speech, but it permits buffer zones around polling stations on Election Day. This exception to the deregulatory thrust of election speech doctrine is striking, and strikingly under-theorized. In what follows, we excavate the core principle that underpins the buffer zone exception-decisional solemnity-and we argue that, properly understood, the same principle justifies the use of temporal buffer zones: stricter-than-normal regulations on certain types of political speech in the immediate vicinity of an election. Voting, we argue, is an act different in kind from the deliberation that precedes it. Accordingly, governmental efforts to ensure …

Voter Data, Democratic Inequality, And The Risk Of Political Violence, Bertrall L. Ross Ii, Douglas M. Spencer

Publications

Campaigns' increasing reliance on data-driven canvassing has coincided with a disquieting trend in American politics: a stark gap in voter turnout between the rich and poor. Turnout among the poor has remained low in modern elections despite legal changes that have dramatically decreased the cost of voting. In this Article, we present evidence that the combined availability of voter history data and modern microtargeting strategies have contributed to the rich-poor turnout gap. That is the case despite the promises of big data to lower the transaction costs of voter outreach, as well as additional reforms that have lowered the barriers …

Survival Voting And Minority Political Rights, Douglas M. Spencer, Lisa Grow Sun, Brigham Daniels, Chantel Sloan, Natalie Blades

Publications

The health of American democracy has literally been challenged. The global pandemic has powerfully exposed a long-standing truth: electoral policies that are frequently referred to as "convenience voting" are really a mode of "survival voting" for millions of Americans. As our data show, racial minorities are overrepresented among voters whose health is most vulnerable, and politicians have leveraged these health disparities to subordinate the political voice of racial minorities.

To date, data about racial disparities in health has played a very limited role in assessing voting rights. A new health lens on the racial impacts of voting rules would beneficially …

Blind Justice: Algorithms And Neutrality In The Case Of Redistricting, Douglas M. Spencer, Moon Duchin

Publications

In several areas of law and public policy, there have been longstanding dreams that computers can secure decisionmaking that takes only some things into account, while remaining demonstrably neutral to other factors. In 2022, the U.S. Supreme Court will consider mandating race-neutrality in multiple domains, notably in college admissions and redistricting. In this piece, we clarify the real and imagined uses of computers in redistricting, considering their application for optimization approaches and, more recently, for representative sampling. The current pitch to the Court for a race-blind Voting Rights Act is discussed at length.

Models, Race, And The Law, Moon Duchin, Douglas M. Spencer

Publications

Capitalizing on recent advances in algorithmic sampling, The Race-Blind Future of Voting Rights explores the implications of the long-standing conservative dream of certified race neutrality in redistricting. Computers seem promising because they are excellent at not taking race into account—but computers only do what you tell them to do, and the rest of the authors’ apparatus for measuring minority electoral opportunity failed every check of robustness and numerical stability that we applied. How many opportunity districts are there in the current Texas state House plan? Their methods can give any answer from thirty-four to fifty-one, depending on invisible settings. But …

"The Cornerstone Of The Stability Of Our Government": The Forgotten Penalty Clause And Electoral Reform In The Aftermath Of The 2020 Election, Delaram Takyar

Publications

The 2020 presidential election, which was preceded by months of efforts by Republican party members to disenfranchise voters during a global pandemic, highlighted the United States' historic need for electoral reform. The tools for this reform might already exist in the Penalty Clause of the Fourteenth Amendment, which provides a built-in remedy—reduced representation in Congress—in cases where a state abridges the voting rights of its citizens. This Remark provides an overview of the history of the long-neglected Penalty Clause, including a discussion of how important its drafters viewed its role, as well as practical proposals for ways it could be …

The Political (Mis)Representation Of Immigrants In Voting, Ming H. Chen, Hunter Knapp

Publications

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This Essay describes several barriers facing immigrants and naturalized citizens that impede their political belonging. It critiques these barriers on the basis of immigrants and foreign-born voters having rights of semi-citizenship. By placing naturalization backlogs, voting restrictions, and reapportionment battles in the historical context of voter suppression, it provides a descriptive and normative account of the political misrepresentation of immigrants.

The Political (Mis)Representation Of Immigrants In The Census, Ming Hsu Chen

Publications

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights but based on their rights as current and future members of the political community. This is the second of two Essays. The first Essay focused on voting restrictions impacting Asian American and Latino voters. The second Essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 Census. Together, the Essays critique the …

‘‘Appearance Of Corruption’’: Linking Public Opinion And Campaign Finance Reform, Douglas M. Spencer, Alexander G. Theodoridis

Publications

At present, campaign finance regulations may only be justified if their primary purpose is to prevent quid pro quo corruption or the appearance of corruption. References to the ‘‘appearance of corruption’’ are ubiquitous in campaign finance decisions, yet courts have provided very little guidance about what the phrase means. In this article, we report findings from a broadly representative national survey in which we (1) directly ask respondents to identify behaviors that appear politically corrupt, and (2) indirectly measure perceptions of corruption using a novel paired-choice conjoint experiment asking respondents to choose which of two randomly generated candidates are more …

While The Water Is Stirring: Sojourner Truth As Proto-Agonist In The Fight For (Black) Women’S Rights, Lolita Buckner Inniss

Publications

This Essay argues for a greater understanding of Sojourner Truth’s little-discussed role as a proto-agonist (a marginalized, long-suffering forerunner as opposed to a protagonist, a highly celebrated central character) in the process that led up to the passage of the Nineteenth Amendment. Though the Nineteenth Amendment failed to deliver on its promise of suffrage for black women immediately after its enactment, black women were stalwarts in the fight for the Amendment and for women’s rights more broadly, well before the ratification of the Amendment and for many years after its passage. Women’s rights in general, and black women’s rights in …

Passive Voter Suppression: Campaign Mobilization And The Effective Disfranchisement Of The Poor, Bertrall L. Ross Ii, Douglas M. Spencer

Publications

A recent spate of election laws tightened registration rules, reduced convenient voting opportunities, and required voters to show specific types of identification in order to vote. Because these laws make voting more difficult, critics have analogized them to Jim Crow Era voter suppression laws.

We challenge the analogy that current restrictive voting laws are a reincarnation of Jim Crow Era voter suppression. While there are some notable similarities, the analogy obscures a more apt comparison to a different form of voter suppression-one that operates to effectively disfranchise an entire class of people, just as the old form did for African …

Corporations As Conduits: A Cautionary Note About Regulating Hypotheticals, Douglas M. Spencer

Publications

No abstract provided.

(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton

Publications

Lies take many forms. Because lies vary so greatly in their motivations and consequences (among many other qualities), philosophers have long sought to catalog them to help make sense of their diversity and complexity. Legal scholars too have classified lies in various ways to explain why we punish some and protect others. This symposium essay offers yet another taxonomy of lies, focusing specifically on election lies — that is, lies told during or about elections. We can divide and describe election lies in a wide variety of ways: by speaker, by motive, by subject matter, by audience, by means of …

Financing Corporate Elections, Andrew A. Schwartz

Publications

Elections for corporate directorships have become more competitive and expensive in recent years, raising important questions of corporate campaign finance, such as whether an insurgent campaign must disclose the source of its funding and whether a director is permitted to receive third-party compensation during her term in office (known as a "golden leash"). These present novel and unanswered issues of corporate law, but many analogous issues have been resolved in the political sphere using the First Amendment and a well-developed line of Supreme Court case law beginning with Buckley v. Valeo and continuing through Citizens United and other key precedents. …

Administering Section 2 Of The Voting Rights Act After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

Publications

Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect. This Article argues that the courts, in partnership with the Department of Justice, could reform section 2 so that it fills much of the gap left by the Supreme Court's evisceration of section …

Swing State Rulings On Restrictive Voting Laws Highlight The Need For Comprehensive Electoral Reform, Michael Lavigne

University of Colorado Law Review

The right to elect our leaders has been one of the defining features of America's political system from its very beginning. Throughout the two and a half centuries that the United States has existed, that right to vote has gradually been expanded to previously disenfranchised groups, and strengthened through legislation like the Voting Rights Act, Help America Vote Act, and National Voter Registration Act. However, recent elections-such as Florida in 2000 and Ohio in 2004-have shown that the right to vote can still be undermined by incompetent or conflicted officials. Additionally, measures whose purpose is ostensibly to prevent voter fraud, …

The Geography Of Racial Stereotyping: Evidence And Implications For Vra ‘Preclearance’ After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

Publications

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This Article proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and who vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that …

Citizens United, States Divided: An Empirical Analysis Of Independent Political Spending, Douglas M. Spencer, Abby K. Wood

Publications

What effect has Citizens United v. FEC had on independent spending in American politics? Previous attempts to answer this question have focused solely on federal elections, where there is no baseline for comparing changes in spending behavior. We overcome this limitation by examining the effects of Citizens United as a natural experiment on the states. Before Citizens United, about half of the states banned corporate independent expenditures and thus were "treated" by the Supreme Court's decision, which invalidated these state laws. We rely on recently released state-level data to compare spending in "treated" states to spending in the "control" states, …

Are Ballot Titles Biased: Partisanship In California's Supervision Of Direct Democracy, Christopher S. Elmendorf, Douglas M. Spencer

Publications

This study investigates whether and if so under what conditions the California attorney general (AG), who authors the ballot title and summary (label) for statewide ballot initiatives, writes ballot language that is biased rather than impartial. State law demands an impartial label, but commentators frequently complain that the AG chooses misleading language to bolster (undermine) measures that the AG or the AG's party supports (opposes). In this Article, using a convenience sample of students from several universities, we measure ordinary observers' perceptions of bias in ballot labels for initiatives dating back to 1974. Separately, we calculate an objective measure of …

Reimagining Democratic Inclusion: Asian Americans And The Voting Rights Act, Ming Hsu Chen, Taeku Lee

Publications

The current legal framework for protecting voting rights in the United States has been dramatically destabilized by Supreme Court decisions re-interpreting the protections against minority vote dilution and requires rethinking to survive modern challenges. At the same time, the nation has itself undergone dramatic changes in the racial composition of its polity and in the complexity and salience of race as a factor in political life. In this paper, we focus on a relatively unexamined constituent of this complex reality of modern racial diversity that illustrates some of the core features that all minority groups face in continuing VRA challenges: …

Secrets, Lies, And Disclosure, Helen Norton

Publications

This symposium essay suggests that we can sometimes understand those who resist campaign disclosure or disclaimer requirements as interested in keeping a secret and occasionally even in telling a sort of lie about the source or intensity of support for a particular candidate or cause. Such secrets and lies threaten listeners’ autonomy interests when the speaker seeks to keep such secrets (and sometimes seeks to tell such lies) to enhance her ability to influence her listeners’ decisions. For these reasons, I suggest greater attention to the reasons speakers seek to keep secrets (or occasionally tell such lies) in assessing the …

Campaign Speech Law With A Twist: When The Government Is The Speaker, Not The Regulator, Helen Norton

Publications

Although government entities frequently engage in issue-related campaign speech on a variety of contested ballot and legislative measures, this fact has been entirely overlooked in contemporary First Amendment debates over campaign speech law specifically and government speech more generally. The Supreme Court's "campaign speech" and "government speech" dockets have focused to date on claims by private parties that the government has restricted or silenced their speech in violation of the First Amendment. In contrast, disputes over what this Article calls "governmental campaign speech" involve Free Speech Clause and other challenges by private parties who seek instead to silence the government's …

Elections In California, Karen Skinner

Publications

No abstract provided.

Long Lines At Polling Stations? Observations From An Election Day Field Study, Douglas M. Spencer, Zachary S. Markovits

Publications

This pilot study represents the first systematic attempt to determine how common lines are on Election Day, at what times of day lines are most likely to form, what are the bottlenecks in the voting process, and how long it takes an average citizen to cast his or her ballot. This study highlights the importance of evaluating polling station operations as a three-step process: arrival, check-in, and casting a ballot. We collected data during the 2008 presidential primary election in California, measuring the efficiency of the operational components of 30 polling stations across three counties. We found statistically significant, and …