Election Law Commons^™

The Voting Rights Act, Race, Redistricting, And The Future Of U.S. Democracy, Wilfred U. Codrington Iii, Sophia Lankin, Michael Li, Jarret Berg, Carl Unegbu, Floersheimer Center For Constitutional Democracy

2025 Event Invitations

Join us for a timely and critical moderated conversation on the future of American democracy as leading experts on U.S. voting rights Wilfred Codrington III (Cardozo School of Law), Sophia Lankin (ACLU), Michael Li (Brennan Center for Justice), and Jarret Berg (VoteEarlyNY) unpack the ongoing legal battles shaping representation in the United States, most notably the fight over continued viability of the Voting Rights Act. The conversation will be moderated by Carl Unegbu.

Litigation And The 2024 Election: Critical Questions, Jacob Burns Center For Ethics In The Practice Of Law, Cardozo Center For Rights And Justice

2024–2025 Flyers

No abstract provided.

Unlocking The Vote: Hopkins V. Hosemann As A Catalyst For Restoring Voting Rights To Nonviolent Felons, Emily K. Abrams

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

A Wrong In Search Of A Duty: Public Nuisance, Social Media And The Youth Mental Health Crisis, Charles Bachmann

Cardozo Journal of Equal Rights & Social Justice

The note argues that social media companies should be held accountable for their role in the youth mental health crisis through the legal framework of public nuisance law. Drawing parallels to successful cases against tobacco and opioid companies, the author contends that social media platforms, by prioritizing profits over user well-being, contribute to widespread harm such as anxiety, depression, and suicide among youth. While acknowledging concerns about judicial overreach and the challenges of proving causation, the note advocates for judicial intervention as a necessary corrective in the absence of effective legislative action.

Power For The People: Recognizing The Constitutional Right To Vote For President, Charlie Martel

Cardozo Law Review

On January 6, 2021, a mob attacked the United States Capitol to overthrow the certification of the legitimately elected president and install the election loser, Donald Trump. Before this, there was another coup attempt. Trump and his team pressured state legislators and officials not to certify legitimately elected presidential electors, and to instead certify fake electors for Trump. This was based on the theory that the Constitution grants states “plenary power” to select presidential electors, even if this means cancelling citizen elections or rejecting their outcome. The coups failed—this time.

There should be no next time. The Supreme Court should …

Unprincipled All The Way Down, Wilfred U. Codrington Iii

Articles

In 2006, the Supreme Court issued an emergency stay order in Purcell v. Gonzalez. Sparing in words and inattentive to the realities on the ground, the opinion nevertheless made a reasonable and understandable assertion: prior to issuing relief, courts presiding over elections should take into account any harms that judicial orders might cause, particularly in the lead-up to voting, alongside other considerations unique to elections. The statement was general enough to mollify the masses in the short-term. But over the long haul, it has proven to be a vehicle through which important election decisions might be made in less than …

Shadow Districts, Quinn Yeargain

Cardozo Law Review

Redistricting disputes—for congressional, state legislative, and local districts—have proven all-consuming in politics. Litigation over the legality of districts, under both federal and state law, is near constant when decennial redistricting occurs. But largely omitted from redistricting litigation and scholarship, however, are the districts drawn to elect members of statewide boards. These boards have outsized authority over some of the most salient disputes in politics today, with state boards of education setting policies for what can be taught in classrooms and how LGBT students are treated by the public education system, public utility commissions adopting policies for renewable energy production and …

Navigating Campaign Finance Reform Through Publicly Funded Elections On The Local Level, Emily Bernstein

Cardozo Law Review

Despite the Constitution’s silence on the issue of campaign finance, the Supreme Court has had a considerable hand in shaping the campaign finance regulatory structure of the United States. There are countless criticisms of the campaign finance system the Court has constructed. On the one hand, some scholars stipulate that, though they are critical of the system, it is an intelligible “product” of the Constitution. On the other hand, others argue that the “vision of democracy” portrayed in money-in-politics decisions is not faithful to the Constitution.

The Supreme Court In Crisis, David M. Hunt Library

2023 Event Invitations

The speakers will discuss recent decisions affecting abortion and gun rights, the public’s trust and confidence in the high court and cases the Court will decide before the summer involving LGBTQ rights, affirmative action, election law and immigration policy.

Speakers:

• Tom Gerety, former President of Amherst and Trinity Colleges, former Executive Director of the Brennan Center for Justice
• Adam Liptak, New York Times Supreme Court Correspondent
• David Rudenstine, Sheldon H. Solow Professor of Law at Cardozo and former Dean

The Advent Of Facial Recognition And The Erosion Of The Rule Of Law In "Moscow Smart City", Antonina Semivolos

Cardozo Journal of Equal Rights & Social Justice

The Russian government's deployment of facial recognition technology in Moscow, exemplified by the Popova case, highlights the erosion of civil liberties due to insufficient legal regulation and the absence of safeguards against surveillance overreach. This deployment underscores the broader decline in democratic principles and civil society's diminished capacity to challenge authoritarian measures.

Oral Argument In Moore V. Harper And The Perils Of Finding “Compromise” On The Independent State Legislature Theory, Katherine A. Shaw

Online Publications

The Supreme Court’s cert grant last June in Moore v. Harper was an ominous note on which to end an explosive term. The grant seemed to broadcast an openness to embracing what’s known as the “independent state legislature theory,” or ISLT. It is a once-fringe idea that the U.S. Constitution, and in particular Article I’s “elections clause,” grants to state legislatures alone, and withholds from other state entities (think: courts and constitutions), the power to regulate elections for federal office.

Textualism, Judicial Supremacy, And The Independent State Legislature Theory, Leah M. Litman, Katherine A. Shaw

Articles

This piece offers an extended critique of one aspect of the so-called "independent state legislature" theory. That theory, in brief, holds that the federal Constitution gives state legislatures, and withholds from any other state entity, the power to regulate federal elections. Proponents ground their theory in two provisions of the federal Constitution: Article I's Elections Clause, which provides that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," and Article H's Presidential Electors Clause, which provides that "[e]ach State shall appoint, in such Manner as the Legislature …

More On The Varying Meanings Of “Congress” And “Legislature”, Michael Herz

Online Publications

In a recent Election Law Blog post regarding the Independent State Legislature doctrine, Rick Pildes observes that the term “Congress” in the U.S. Constitution sometimes means Congress acting alone and sometimes means Congress acting through legislation. Given that, it makes perfect sense that the term “legislature” can also sometimes mean the one and sometimes the other. I agree. This post just expands the intratextual analysis.

A New Supreme Court Case Threatens Another Body Blow To Our Democracy, Katherine A. Shaw, Leah Litman, Carolyn Shapiro

Online Publications

When the Supreme Court overruled Roe v. Wade, the justices in the majority insisted they were merely returning the issue of abortion to the democratic process. But a case the court has announced it will hear in its October term could make that democratic process a lot less democratic.

"A Mystifying And Distorting Factor": The Electoral College And American Democracy, Katherine A. Shaw

Articles

A Review of Let the People Pick the President: The Case for Abolishing the Electoral College. By Jesse Wegman.

Standardizing State Vote-By-Mail Deadlines In Federal Elections, Jason Nagel

Cardozo Law Review de•novo

The litigation over the vote-by-mail process during the 2020 general election revealed that absentee ballot voting disputes should not be left entirely to the courts. Rather, this Note argues that Congress should utilize its constitutional Elections Clause power to standardize federal vote-by-mail processes, and proposes specific elements that Congress should include in such legislation.

Corporate Capital & Legal Personality: A Marxist Account Of Citizens United Ten Years Later, Hayden E. Pendergrass

Cardozo Journal of Equal Rights & Social Justice

The article presents a Marxist critique of the Citizens United decision, arguing that it embodies the dominant capitalist ideology by granting corporations extensive First Amendment rights. This decision reflects the legal system's role in reinforcing corporate power and control over the political process, aligning with Marxist theories of law as a tool of class domination.

I Choose, You Decide: Checking The Judiciary From Within, Jeremy N. Sheff

Cardozo Law Review

Efforts to rein in partisanship (or the perception thereof) on the Supreme Court tend to focus either on what Ryan Doerfler and Samuel Moyn call “personnel reforms”—changes to the selection, appointment, or tenure of Justices—or on what they call “disempowering reforms”—changes that divert some of the judiciary’s authority to the political branches, for example via jurisdiction stripping. I propose a different—and perhaps complementary—reform, which would achieve some of the goals of both types of reform without requiring a constitutional amendment. I propose that the selection of a case for the Supreme Court’s discretionary appellate docket should be performed by a …

"And The Oscar Goes To . . .": Why The Academy Awards May Create Antitrust Drama With Proposed Eligibility Rule Changes, Armando Marin Iii

Cardozo Law Review

No abstract provided.

Unwaivable: Public Enforcement Claims And Mandatory Arbitration, Myriam E. Gilles, Gary Friedman

Articles

This essay, written for a conference on the “pathways and hurdles” that lie ahead in consumer litigation, is the first to examine the implications of California’s recent jurisprudence holding public enforcement claims unwaivable in standard-form contracts of adhesion, and the inevitable clash with the U.S. Supreme Court’s decisional law interpreting the Federal Arbitration Act. With its rich history of rebuffing efforts to deprive citizens of public rights through private contract, California provides an ideal laboratory for exploring this escalating conflict.

Return Of The King: Corruption Backsliding In America, Pedro Gerson

Cardozo International & Comparative Law Review

The United States appears to be going through a crisis of corruption. However, it is hard to know whether this is a matter of appearance or if the country is at risk of high levels of corruption making a comeback. The Article applies the equilibrium model of corruptionthe leading social science account of how corruption operates-to the current U.S. system, and shows that the United States may indeed be backsliding. The potential for corruption to creep back up is due to more than the political moment. Rather, it is the result ofpolitics combined with the relatively powerless institutional controls for …

Movement For Quality Government In Israel V. Speaker Of The Knesset, Esther Hayut, Hanan Melcer, Neal Hendel, Uzi Vogelman

Translated Opinions

Elections for the 23^rd Knesset were held on March 2, 2020, and the new Knesset was set to be sworn in on March 16, 2020. On March 15, 2020, in anticipation of the swearing in of the Knesset, several factions, comprising 61 Members of Knesset, requested that the acting Speaker of the Knesset, MK Yoel (Yuli) Edelstein, include a motion for the election of a permanent Speaker for the 23^rd Knesset on the agenda of that session. The Speaker refused.

Petitions challenging that decision were filed in the High Court of Justice by The Movement for Quality Government, …

The Special Norms Thesis: Why Congress's Constitutional Decisionmaking Should Be Disciplined By More Than The Usual Norms Of Politics, Mark D. Rosen

Cardozo Law Review

Even if we accept that the most basic rules of fair play do not apply to our nation's political representatives when they battle one another in the ordinary lawmaking process, we should demand more when they engage in constitutional decision-making. This Article explains why our constitutional system demands different rules of engagement when constitutional questions are at issue, and exactly what we should expect of members of Congress in these situations.

Lieberman Et Al. V. Cassif Et Al., Esther Hayut, Neal Hendel, Uzi Vogelman, Isaac Amit, Noam Sohlberg, Menachem Mazuz, Anat Baron, George Karra, David Mintz

Translated Opinions

1.         On March 6, 2019, the Central Elections Committee for the 21^st Knesset approved a request for the disqualification of Dr. Ofer Cassif from running as a candidate for the Knesset on the Hadash-Ta’al list but rejected a request to disqualify the Hadash-Ta’al list. The Committee further accepted two requests to disqualify the Ra’am-Balad list and rejected three requests to disqualify Dr. Michael Ben Ari and Advocate Itamar Ben Gvir from standing for election. The decision to disqualify Cassif was submitted to the Supreme Court for approval, as required under sec. 7A(b) of Basic Law: The Knesset and sec. …

Applying The First Amendment To The Internal Revenue Code: Minnesota Voters Alliance And The Tax Law’S Regulation Of Nonprofit Organizations’ Political Speech, Edward A. Zelinsky

Articles

On its face, Minnesota Voters Alliance v. Mansky is about which T-shirts, hats and buttons voters can wear at the polls. However, the U.S. Supreme Court’s First Amendment analysis in Minnesota Voters Alliance extends beyond apparel at polling places. That decision impacts the ongoing debate about the Johnson Amendment, the now controversial provision of the Internal Revenue Code which forbids Section 501(c)(3) organizations from intervening in political campaigns. Minnesota Voters Alliance also affects the proper construction of Section 501(c)(3)’s ban on lobbying by tax-exempt entities as well as other provisions of the tax law taxing and precluding campaign intervention by …

Aviram V. Minister Of Justice, Neal Hendel, Isaac Amit, Uzi Vogelman

Translated Opinions

A petition concerning whether the Knesset is required to ensure that a member of the opposition serves on the Judicial Selection Committee (hereinafter: the Committee) at all times. Background: The two Members of Knesset sitting on the Committee are elected by the Knesset by secret ballot. Since 1990, the Knesset has elected at least one Committee member from the ranks of the opposition. This was also the case in the last elections, with the election of MK Ilatov to the Committee. MK Ilatov was a meber of Yisrael Beitenu, which then sat in the opposition. Shortly thereafter, Yisrael Beitenu joined …

Changing The System Without Changing The System: How The National Popular Vote Interstate Compact ​Would Leave Non-Compacting States Without A Leg To Stand On, Jillian Robbins

Cardozo Law Review de•novo

This Note will discuss the constitutional and legal implications of the NPVIC, and will explore the strengths and weaknesses of the arguments both for and against its implementation. It will argue that the NPVIC is constitutional, despite many opponents’ views that it is not, because it does not encroach on federal supremacy or threaten the political relevance or rights of non-compacting states. This Note proposes that if a lawsuit between the states resulted from the enactment of the NPVIC, even if the merits of the claim are constitutional, the United States Supreme Court should dismiss these cases because the states …

The Institutional Case For Partisan Gerrymandering Claims, G. Michael Parsons

Cardozo Law Review de•novo

For voters hoping the Supreme Court’s 2017 Term brings relief from partisan gerrymandering, the end of the 2016 Term was inauspicious. In Cooper v. Harris, the majority assumed the legitimacy of “partisan advantage” arguments while the dissent—including Justice Kennedy—warned about the “serious institutional and federalism implications” of judicial intervention in the redistricting process. If past is prologue, this concern for institutional and structural interests does not bode well.

Is The Uniform Faithful Presidential Electors Act Constitutional?, Robert J. Delahunty

Cardozo Law Review de•novo

My topic is both timely and perennial: The Electoral College. More specifically, I will first discuss the constitutional problem known as the “Faithless Elector” and, then, I will attempt to solve such problem. My proposed solution is the Uniform Faithful Presidential Electors Act (UFPEA), a statute that several states have adopted.

Introduction: New Models For Prosecutorial Accountability, Russell Shapiro

Cardozo Law Review de•novo

The criminal justice system in the United States was established on a simple notion: “that it is better that ten guilty persons escape, than that one innocent suffer.” It is for this reason that a prosecutor’s burden at trial is so demanding, requiring proof beyond a reasonable doubt. Yet, while a vast majority of prosecutors are committed to the highest ethical standards, with troubling frequency, some high profile exonerations shed light on systemic problems, most often involving failures by prosecutors and other law enforcement officials to disclose exculpatory and impeachment evidence as required by Brady v. Maryland.

To address …