Election Law Commons^™

Peach State To Global Debate: Election Technology And Voter Faith, Laura Starling

Georgia Journal of International & Comparative Law

The Coffee County voting data breach highlights vulnerabilities in U.S. election technology—prompting a comparison with global voting systems to identify best practices for restoring public trust in democratic processes.

The Regulation Of Presidential Elections, Lori A. Ringhand

Scholarly Works

There is an unresolved dispute lingering just beneath the surface of a host of laws regulating our elections: does Congress have power under Articles I and II of the Constitution to legislate the nuts-and-bolts rules governing presidential elections? The issue exists because of a textual gap in congressional authority. Article 1 section 4 of the Constitution gives Congress the power to override a state's choices about the "times, places, and manner" of congressional elections held in the state. Article II section 1 gives the legislature of each state power to determine the “manner” in which its presidential electors are appointed, …

Contextualizing Corruption: Foreign Financing Bans And Campaign Finance Law, Lori A. Ringhand

Scholarly Works

In Bluman v. FEC, the court held that foreign nationals could be prohibited from making even independent expenditures because such expenditures risked inappropriately influencing the choices made by American voters. The result in Bluman is correct, but the court’s reasoning is wrong. Foreign financing bans are constitutional not because foreign speech may “inappropriately” influence voters, but for the same reason all successful restrictions on political speech are constitutional: because of the risk they pose to the appearance or actuality of corrupting the conduct of public officials. The sense of indebtedness or ingratiation independent expenditures can induce in elected officials may …

Constitutional Text, Founding-Era History, And The Independent-State-Legislature Theory, Dan T. Coenen

Scholarly Works

One question raised by proponents of the so-called independent-state-legislature theory concerns the extent to which state courts can apply state constitutional requirements to invalidate state laws that concern federal elections. According to one proposed application of the theory, state courts can never subject such laws to state-constitution-based judicial review. According to another application, federal courts can broadly, though not invariably, foreclose state courts from drawing on state constitutions to invalidate federal-election-related state legislation. This article evaluates whether either of these positions comports with the original meaning of the Constitution. Given the article’s focus on the originalist methodology, it directs attention …

Book Review: Comparative Election Law, Lori A. Ringhand

Scholarly Works

Review of the book Comparative Election Law by James A Gardner, ed. (Cheltenham: Edward Elgar Publishing, 2022) 544 p.

Back To Basics: How International Election Observation Standards Can Strengthen Democracy In The United States, Ward Evans

Georgia Journal of International & Comparative Law

No abstract provided.

A New Way For Voting In American Elections: Addressing The Patentability Of A Blockchain Mail-In Voting System, Brandon D. Waller

Journal of Intellectual Property Law

The novel corona virus turned life upside down throughout the world in 2020. One of its many impacts was the fear it gave people of going out in public as doing such could increase the likelihood of contraction. This disease happened to come about during an election year in the United States and this raised many questions about how voting could be safely conducted. A hot topic debate took over America as to whether or not mail-in voting would suffice. The United States Postal Service sought to find a reliable way to conduct mail-in voting and filed for a patent …

Purges And Closures And Lines, Oh My!--Do Georgia's 2018 Election Procedures Violate International Law?, Holly Katherine Stephens

Georgia Journal of International & Comparative Law

No abstract provided.

Electoral Votes Regularly Given, Derek T. Muller

Georgia Law Review

Every four years, Congress convenes to count presidential
electoral votes. In recent years, members of Congress have
objected or attempted to object to the counting of electoral votes
on the ground that those votes were not “regularly given.” That
language comes from the Electoral Count Act of 1887. But the
phrase “regularly given” is a term of art, best understood as
“cast pursuant to law.” It refers to controversies that arise after
the appointment of presidential electors, when electors cast
their votes and send them to Congress. Yet members of Congress
have incorrectly used the objection to challenge an assortment …

The Voting Rights Paradox: Ideology And Incompleteness Of American Democratic Practice, Atiba R. Ellis

Georgia Law Review

This Essay describes the “voting rights paradox”—the fact
that despite America’s professed commitment to universal
enfranchisement, voting rights legislation throughout U.S.
history has arisen in some states to serve antidemocratic,
exclusionary ends. This Essay argues that this contradiction
comes into focus when the right to vote is understood as having
as an ideological driving force based on worthiness for
admission to the franchise. This ideology of worthiness persists
because the right to vote is dependent on political decisions left
to the political branches and the majority’s willingness to allow
propaganda to influence the scope of the franchise.
Ultimately, this Essay …

In Defense Of The Foundation Stone: Deterring Post-Election Abuse Of The Legal Process, Joyce G. Lewis, Adam M. Sparks

Georgia Law Review

The COVID-19 pandemic has upended the American way of
life and revolutionized the way we vote. Record voter turnout in
2020, including among first-time voters and voters of color, was
met with unprecedented legal challenges seeking to nullify
millions of votes. A coordinated effort to amplify groundless
accusations of voting fraud, shorthanded as “the Big Lie,” was
advanced in multiple states through scores of lawsuits.
Although the cases themselves were dismissed as lacking merit
and as failing to state actionable claims, their impact upon
public confidence in free and fair elections was palpable and
the resources of the courts and …

Minority Rights And The Electoral College: What Minority, Whose Rights?, David Schultz

Georgia Law Review

The Electoral College as a method of selecting U.S.
presidents was allegedly set up to protect one type of minority
rights—those of slave states and small states—but over time
it has operated to deny the rights of racial and other minorities,
especially given the winner-take-all system of electoral vote
allocation used in forty-eight states. This Essay examines the
history and current operation of the Electoral College, detailing
how, despite its changes, it continues to privilege some forms of
minority rights at the expense of others. The Essay also
indicates how in its current form in forty-eight states, the
Electoral College …

Bring The Masks And Sanitizer: The Surprising Bipartisan Consensus About Safety Measures For In-Person Voting During The Coronavirus Pandemic, Joshua A. Douglas, Michael A. Zilis

Georgia Law Review

Requiring masks at the polls might implicate a clash
between two vital rights: the constitutional right to vote and the
right to protect one’s health. Yet the debate during the 2020
election over requirements to wear a mask at the polls obscured
one key fact: a majority of Americans supported a mask
mandate for voting. That is the new insight we provide in this
Essay: when surveyed, Americans strongly supported safety
measures for in-person voting, and that support was high
regardless of partisanship. One implication of our results is
that by making some widely supported safety modifications,
state election officials …

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.

Georgia’S Runoff Election System Has Run Its Course, Graham P. Goldberg

Georgia Law Review

Georgia requires candidates to earn a majority of
votes in their party’s primary to win elected office. The
majority-vote requirement—passed by the General
Assembly in 1964—is stained by racially-fraught
politics of the era, and even its alleged “good
government” goals are now antiquated. This Note
explores the history of Georgia’s majority-vote
requirement, examines two legal challenges to the law,
and analyzes its flaws and virtues. Finally, this Note
demonstrates that more appealing alternatives to the
majority-vote requirement exist and recommends that
Georgia replace its current runoff election system with
either ranked choice voting or a forty-percent
threshold-vote requirement.

The Independent State Legislature Doctrine, Federal Elections, And State Constitutions, Michael T. Morley

Georgia Law Review

The U.S. Constitution does not confer authority to regulate
federal elections on states as entities. Rather, it grants that
authority specifically to the “Legislature” of each state. The
“independent state legislature doctrine” teaches that a state
constitution is legally incapable of imposing substantive
restrictions on the authority over federal elections that the U.S.
Constitution confers directly upon a state’s legislature. Over the
past 130 years, the U.S. Supreme Court has repeatedly adopted
conflicting positions on this doctrine without recognizing its
deep historical roots or normative justifications.
The independent state legislature doctrine reflects the
prevailing understanding of states, Congress, and other …

First Amendment (Un)Exceptionalism: A Comparative Taxonomy Of Campaign Finance Reform Proposals In The United States And United Kingdom, Lori A. Ringhand

Scholarly Works

There is an urgent conversation happening among the world’s democracies about how to respond to the combined threat of online electioneering and foreign interference in domestic elections. Despite the shadow such activities cast over the 2016 presidential election in the United States, the US has been largely absent from comparative discussions about how to tackle the problem. This is not just because of a recalcitrant president. The assumption that America’s “First Amendment Exceptionalism” – the idea that American freedom of expression law is simply too much of an outlier to warrant useful comparative consideration – is strong on both sides …

Fundamental, Unequivocal, Yet Unreliable: The Interplay Of Voting, Electronic Voting Systems, And Trade Secrets In Today's Interconnected World, Burns Marlow

Journal of Intellectual Property Law

No abstract provided.

Keynote Speech: Walking The Line: Modern Gerrymandering And Partisanship, Nicholas O. Stephanopoulos

Georgia Law Review

INTRODUCTION I am going to be discussing an ongoing project of mine that I call hyperpartisan election law. I make three main arguments in this project. The first is that almost all of election law was created during an unusually nonpartisan period in the 1960s, 1970s, and 1980s. Consistent with this period's very low level of partisanship, election law originally did not intend to, and did not actually have the effect, of addressing partisan cleavages. The second claim is that as the country's voters and politicians have become ever more partisan over the last generation, election law has adapted in …

The History Of Redistricting In Georgia, Charles S. Bullock Iii

Georgia Law Review

In his memoirs, Chief Justice Earl Warren singled out
the redistrictingcases as the most significant decisions of
his tenure on the Court., A review of the changes
redistricting introduced in Georgia supports Warren's
assessment. Not only have the obligations to equalize
populations across districts and to do so in a racially fair
manner transformed the makeup of the state's collegial
bodies, Georgia has provided the setting for multiple cases
that have defined the requirements to be met when
designing districts.
Other than the very first adjustments that occurred in
the 1960s, changes in Georgia plans had to secure
approval from …

No Matter Who Draws The Lines: A Comparative Analysis Of The Utility Of Independent Redistricting Commissions In First-Past-The-Post Democracies, Katherine L. Ekstrand

Georgia Journal of International & Comparative Law

No abstract provided.

Voting Rights And The History Of Institutionalized Racism: Criminal Disenfranchisement In The United States And South Africa, Brock A. Johnson

Georgia Journal of International & Comparative Law

No abstract provided.

Judging Congressional Elections, Lisa M. Manheim

Georgia Law Review

A pivotal clause of our Constitution suffers from
uncertainty and neglect. The result has scrambled the law
of contested congressional elections. These high-stakes
disputes turn on questions of procedure, and in particular
on questions of forum. Yet across the country, an
unpredictable and ad hoc set of regimes governs these
fundamental questions. The culprit behind the confusion
is Article I, Section 5 of the United States Constitution,
which states that "Each House shall be the Judge of the
Elections ... of its own Members." This command may
seem straightforward, if a bit unsettling-it allows
Congress to decide who has won …

Will The Real Candidate Please Stand Up?: Political Parody On The Internet, Jon H. Oram

Journal of Intellectual Property Law

No abstract provided.

A Most Precious Right: Equal Protection, Voter Photo Identification, And The Battle Brewing In Texas, Emily V. Cox

Georgia Law Review

On a Tuesday in November, millions of Americans show
up and cast their votes, even in the face of cynicism,
perceived futility, and disappointment with the politicians
in Washington. It is the birthright of every citizen, and
there is simply nothing more fundamentally American.
The future of this right is now uncertain in the wake of the
United States Supreme Court decisions Crawford and
Shelby County. This Note suggests finding certainty by
re-framing the current test for the constitutionality of state
voting restrictions, the Anderson-Burdick Balancing Test.
This new imagining of the current test hinges on
identifying the nature of …

The Price Of Corruption, Usha Rodrigues

Scholarly Works

The Supreme Court recently held that campaign contributions under $5200 do not create a “cognizable risk of corruption.” It was wrong. This Essay describes a nexus of timely contributions and special-interest legislation. In the most noteworthy case, a CEO made a first-time $1000 donation to a member of Congress. The next day that representative introduced a securities bill tailored to the interests of the CEO’s firm.

Armed with this real-world account of how small-dollar campaign contributions coincided with favorable legislative action, the Essay reads McCutcheon v. Federal Election Commission with a critical eye. In McCutcheon the Supreme Court assumed that …

Two-Time Presidents And The Vice-Presidency, Dan T. Coenen

Scholarly Works

Does the Constitution limit the ability of a twice-before-elected President to serve as Vice-President? This question, as it turns out, presents an intricate constitutional puzzle, the solution of which requires working through four separate sub-inquiries: Is a two-term President totally ineligible for the Vice-Presidency? Is such a person barred from election to the Vice-Presidency even if that person remains appointable to that office? Is a twice-before-elected President, even if properly placed in the Vice-Presidency, incapable of succeeding from that office to the Presidency? And even if such a succession can occur, must the resulting term of service as President expire …

The Price Of Corruption, Usha Rodrigues

Scholarly Works

The Supreme Court recently held that campaign contributions under $5200 do not create a “cognizable risk of corruption.” It was wrong. This Essay describes a nexus of timely contributions and special-interest legislation. In the most noteworthy case, a CEO made a first-time $1000 donation to a member of Congress. The next day that representative introduced a securities bill tailored to the interests of the CEO’s firm.

Armed with this real-world account of how small-dollar campaign contributions coincided with favorable legislative action, the Essay reads McCutcheon v. Federal Election Commission with a critical eye. In McCutcheon the Supreme Court assumed that …

The Honduran Constitution Is Not A Suicide Pact: The Legality Of Honduran President Manuel Zelaya's Removal, Frank M. Walsh

Georgia Journal of International & Comparative Law

No abstract provided.

Rational Coercion: Citizens United And A Modern Day Prisoner's Dilemma, Anne M. Tucker

Scholarly Works

No abstract provided.