Election Law Commons^™

Any Is Too Much: Shelby County V. Holder And Diminished Citizenship, Peter Halewood

Journal of Race, Gender, and Ethnicity

No abstract provided.

Demography And Democracy, Phyllis Goldfarb

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Past As Prologue: Shelby County V. Holder And The Risks Ahead, J. Corey Harris

Journal of Race, Gender, and Ethnicity

No abstract provided.

Elimination Dance, Sarah Jane Forman

Journal of Race, Gender, and Ethnicity

No abstract provided.

Eviscerating The Voting Rights Act And Moral Authority: Freedom To Discriminate Comes With A Price, Patricia A. Broussard

Journal of Race, Gender, and Ethnicity

No abstract provided.

Jackals, Tall Ships, And The Endless Forest Of Lies: Foreword To Symposium On The Voting Rights Act In The Wake Of Shelby County V. Holder, Anthony Paul Farley

Journal of Race, Gender, and Ethnicity

No abstract provided.

Tiered Personhood And The Excluded Voter, Atiba R. Ellis

Chicago-Kent Law Review

The modern discourse critiquing vote denial policies in the United States has taken two distinct paths. The first and more recent path has been to critique the effects of legislation like voter identification laws, narrowed early voting opportunities, and similar enactments to hyper-regulate the voting process, effecting, as some argue, the ability for the poor, the elderly, and minorities to vote. The second strain of this voter suppression discourse relates to the express exclusion of persons who have been convicted of felonies from the exercise of the franchise. While both vote denial by effect or by express disenfranchisement have raised …

A Quantum Congress, Jorge R. Roig

Chicago-Kent Law Review

This article tries to address the problem of a corrupt and broken electoral system that has been captured by special interests through big money spending in political campaigns, while at the same time preserving the spirit of the Free Speech Clause of our Constitution. In doing so, this article first reviews and summarizes the different alternatives proposed as potential fixes for the campaign finance problem. It then explains why none of the proposed alternatives can accomplish the dual goals set out above. Finally, the article briefly sketches a proposal for a fundamental reworking of our representative democracy by substituting legislative …

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

Northwestern University Law Review

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 …

The Realities Of Electoral Reform, Nicholas O. Stephanopoulos, Eric M. Mcghee, Steven Rogers

Vanderbilt Law Review

What good are theories if they cannot be tested? Election law has wrestled with this question over the last generation. Two new theories have emerged during this period that reject conventional rights-and-interests balancing. In its place, the responsiveness theory asserts that legislators' positions should be sensitive to changes in the views of their constituents. Similarly, the alignment theory claims that voters' and legislators'preferences should be congruent. Unfortunately, both of these theories share a common flaw: They provide no way for anyone to tell whether electoral policies improve or worsen responsiveness or alignment. They operate at too normative a level to …

Scrutinizing Federal Electoral Qualifications, Derek T. Muller

Indiana Law Journal

Candidates for federal office must meet several constitutional qualifications. Sometimes, whether a candidate meets those qualifications is a matter of dispute. Courts and litigants often assume that a state has the power to include or exclude candidates from the ballot on the basis of the state’s own scrutiny of candidates’ qualifications. Courts and litigants also often assume that the matter is not left to the states but to Congress or another political actor. But those contradictory assumptions have never been examined, until now.

This Article compiles the mandates of the Constitution, the precedents of Congress, the practices of states administering …

"The Only Thing We Have To Fear Is Fear Itself": The Constitutional Infirmities With Felon Disenfranchisement And Citing Fear As The Rationale For Depriving Felons Of Their Right To Vote, Erika Stern

Loyola of Los Angeles Law Review

Felon disenfranchisement, a mechanism by which felons and former felons are deprived of their right to vote, is a widespread practice that has been challenged on many grounds. However, felon disenfranchisement has not yet been properly challenged under the First Amendment. This Article argues that states implicate felons’ First Amendment rights through felon disenfranchisement without citing adequate or compelling rationales to justify this severe intrusion. In fact, at least one rationale, a rationale based on the fear of the way felons might vote, is itself inconsistent with First Amendment principles. Disenfranchising felons based on a fear of the way that …

When Rhetoric Obscures Reality: The Definition Of Corruption And Its Shortcomings, Jessica Medina

Loyola of Los Angeles Law Review

Due to public scorn after the unraveling of the Watergate scandal, the Supreme Court considered the constitutionality of the Federal Election Campaign Act’s restrictions on political contributions and expenditures. Buckley v. Valeo established that no legitimate government interest existed to justify restrictions on campaign expenditures, and only the prevention of corruption or the appearance of corruption could justify restrictions on campaign contributions. Since then, the Court has struggled to articulate a definition of corruption that balances First Amendment protections with the potential for improper influence. This Article argues that the Court’s current definition of corruption is too narrow, and proposes …

The Falcon Cannot Hear The Falconer: How California's Initiative Process Is Creating An Untenable Constitution, Rudy Klapper

Loyola of Los Angeles Law Review

Californians have always cherished the idea that ultimate political power lies in the people, an idea best represented by the state’s hugely influential initiative process. Today, however, that initiative power threatens to spiral out of control, thanks in large part to the California Supreme Court’s inability to construe appropriate limits on it. This has created an unbalanced government where the rights of minorities are easily circumscribed and the financial and political infrastructure of the state is in danger of buckling under the combined weight of dozens of initiatives. This Article argues that the judiciary’s haphazard interpretation of various rules and …

In All Fairness: Using Political Broadcast Access Doctrine To Tailor Public Campaign Fund Matching, Andrew V. Moshirnia, Aaron T. Dozeman

University of Michigan Journal of Law Reform

Recent United States Supreme Court decisions have undermined the viability of campaign public financing systems, a vital tool for fighting political corruption. First, Citizens United v. FEC allowed privately financed candidates and independent groups to spend unlimited amounts of money on campaigning. Publicly financed candidates now risk being vastly outspent. Second, Arizona Free Enterprise Club’s Freedom PAC v. Bennett invalidated a proportional fund matching system whereby privately financed candidates’ or independent groups’ spending triggered funds to publicly funded candidates. These decisions effectuate a libertarian speech doctrine: all speakers, individual or corporate, must be absolutely unburdened. To comply with this approach, …

The Other Side Of The Coin: The Fec's Move To Approve Crytocurrency's Use And Deny Its Viability, Juliya Ziskina

Washington Journal of Law, Technology & Arts

This Article examines the implications of the Federal Election Committee’s May 2014 advisory opinion on cryptocurrency’s viability within campaign finance regulation, and U.S. financial regulation more generally. Although the Commissioners sharply disagreed on whether Bitcoin is a cash or in-kind contribution, they voted unanimously to allow political committees to accept Bitcoin donations. Moreover, all the Commissioners agreed that Bitcoin donors must disclose their names, addresses, and occupations. While many view this decision as pushing Bitcoin and cryptocurrency further toward legitimacy, in actuality it undermines one of cryptocurrency’s distinct functionalities: pseudonymity. Paradoxically, while it approves the use of Bitcoin in campaign …

Voter Primacy, Sarah C. Haan

Fordham Law Review

    This Article argues that Citizens United v. FEC expanded the audience for campaign finance disclosure to include a group that had never before been held relevant to campaign finance disclosure—corporate shareholders—and explores the constitutional, policy, and political consequences of this change. In part IV of Citizens United, the U.S. Supreme Court departed from more than thirty years of campaign finance disclosure analysis to treat corporate shareholders as a target audience for corporate electoral spending disclosure, holding that the governmental interest advanced by campaign finance disclosure laws includes an interest in helping corporate shareholders “determine whether their corporation’s political speech advances …

A Past And Future Of Judicial Elections: The Case Of Montana, Anthony Johnstone

Faculty Law Review Articles

This article searches for lessons from Montana’s experience for the future of American judicial elections. Part II considers the origin of judicial elections and history of reforms in Montana, which is marked both by substantial worries about outside political intervention in state courts and by several innovative responses to it. Part III reviews the practice established by Montana’s reformed model of judicial selection over the past four decades. Part IV examines the Montana Supreme Court’s engagement with Citizens United, followed by a close analysis of an election held in its aftermath: the hardfought 2014 campaign between incumbent Justice Mike Wheat …

Paths Of Resistance To Our Imperial First Amendment, Bertrall L. Ross Ii

Michigan Law Review

In the campaign finance realm, we are in the age of the imperial First Amendment. Over the past nine years, litigants bringing First Amendment claims against campaign finance regulations have prevailed in every case in the Supreme Court. A conservative core of five justices has developed virtually categorical protections for campaign speech and has continued to expand those protections into domains that states once had the authority to regulate. As the First Amendment’s empire expands, other values give way. Four key cases from this era illustrate the reach of this imperial First Amendment. In Wisconsin Right to Life, Inc. v. …

Election Law—Introduction, Jessica A. Levinson

Loyola of Los Angeles Law Review

No abstract provided.

The Ceo And The Hydraulics Of Campaign Finance Deregulation, Sarah C. Haan

Northwestern University Law Review

Voters increasingly view their consumer activities, not their campaign contributions, as the most meaningful way to participate in politics. In 2014, after it became public that Mozilla’s CEO, Brendan Eich, had made a controversial political donation in a state ballot proposition, consumer pressure led to his resignation. Eich’s downfall and the politicization of retail markets means that business leaders are unlikely to respond to McCutcheon v. FEC by embracing transparency with their campaign donations, and also suggests that campaign finance deregulation is causing hydraulic effects that the Supreme Court has failed to anticipate. This Essay explores what “economic reprisal” means …

What's At Stake?: Bluman V. Federal Election Commission And The Incompatibility Of The Stake-Based Immigration Plenary Power And Freedom Of Speech, Alyssa Markenson

Northwestern University Law Review

Section 441e of the U.S. Code prohibits “foreign nationals”—all noncitizens except lawful permanent residents—from making any contribution or expenditure in any federal, state, or local election. In Bluman v. Federal Election Commission, the Supreme Court summarily affirmed a three-judge district court’s decision to uphold the law based on the government’s compelling interest in preventing foreign influence over U.S. elections. Notably, Bluman’s holding was animated by its reasoning that the extent of First Amendment protection should be directly tied to the aliens’ stake in American society—a reflection of the Supreme Court’s jurisprudence since the middle of the twentieth century that seeks …

Voting Squared: Quadratic Voting In Democratic Politics, Eric A. Posner, E. Glen Weyl

Vanderbilt Law Review

Conventional democratic institutions aggregate preferences poorly. The norm of one-person-one-vote with majority rule treats people fairly by giving everyone an equal chance to influence outcomes but fails to give proportional weight to people whose interests in a social outcome are stronger than those of other people. This problem leads to the familiar phenomenon of tyranny of the majority. Various institutions that have been tried or proposed over the years to correct this problem-including supermajority rule, weighted voting, cumulative voting, "mixed constitutions," executive discretion, and judicially protected rights-all badly misfire in various ways, for example, by creating gridlock or corruption. This …

High Courts And Election Law Reform In The U.S. And India, Manoj Mate

Journal Articles

Over the past decade, the push for electoral reform in India and the United States – the world’s two largest democracies – has been prominent in the politics and governance of both nations. The supreme courts in each country have played important, but distinct, roles in recent electoral reform efforts, responding to different facets and regimes of political corruption. In the 1990s, the Indian Supreme Court became increasingly assertive in requiring greater levels of disclosure and transparency for political parties in India. In a series of decisions in 2002 and 2003, the Indian Supreme Court challenged the Central Government’s failure …

Democracy, Foot Voting, And The Case For Limiting Federal Power, Ilya Somin

Montana Law Review

No abstract provided.

The Legal Quagmire Of Irc § 501(C)(4) Organizations And The Consequential Rise Of Dark Money In Elections, Daniel C. Kirby

Chicago-Kent Law Review

Section 501(c)(4) organizations have recently become a hot topic with respect to campaign finance. Following the 2010 Supreme Court case, Citizens United v. Federal Election Commission, the number of IRC § 501(c)(4) organizations ballooned in number, and the amount of money flowing through § 501(c)(4) groups increased 2390 percent from the 2008 election cycle to the 2012 election cycle. This essay explores the dangers to the campaign finance system of the substantial increase in spending by IRC § 501(c)(4) organizations. The foundational claim of this essay is that IRC § 501(c) is in need of a statutory and regulatory overhaul …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Zachary D. Clopton, Steven E. Art

Northwestern University Law Review

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their senators by popular vote. Despite its significance, there has been little written about what the Amendment means or how it works. This Article provides a comprehensive interpretation of the Seventeenth Amendment based on the text of the Amendment and a variety of other sources: historical and textual antecedents, relevant Supreme Court decisions, the complete debates in Congress, and the social and political factors that led to this new constitutional provision. Among other things, this analysis …

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

NULR Online

No abstract provided.

Citizens United And Taxable Entities: Will Taxable Entities Be The New Stealth Dark Money Campaign Organizations?, Donald B. Tobin

Faculty Scholarship

The electoral process in the United States is going through a major transition as money increasingly pours into non-candidate independent groups (“IGs”). Before 2000, IGs could engage in significant electoral advocacy without having to disclose the IG’s donors or its expenditures. Congress sought to address the lack of disclosure by requiring section 527 political organizations to disclose their contributions and expenditures. IGs quickly sought an alternative organizational form for engaging in political advocacy. The alternative organizational form of choice has been the tax-exempt section 501(c)(4) social welfare organization.

In a 2007 article, I explored whether such tax-exempt entities would be …

Youth Voting Rights Project 2015, Rachel J. Anderson

Voter Education Program Collection

The Youth Voting Rights Project educates students about voting rights and Nevada law and brings them onto the University of Nevada, Las Vegas, campus.