Election Law Commons^™

Gobbledygook: Political Questions, Manageability, & Partisan Gerrymandering, Michael Gentithes

Akron Law Faculty Publications

In finding that extreme partisan gerrymandering is a non-justiciable political question in Rucho v. Common Cause , the Supreme Court fixated upon the lack of judicially manageable standards to evaluate their constitutionality. The decision culminated in the Court's recent reinforcement of that manageability focus in partisan gerrymandering cases, with Chief Justice Roberts even calling efforts to numerically calculate the extremity of such gerrymandering "sociological gobbledygook." Such belabored fears about manageability misread the questions in the political question doctrine. The doctrine requires the Justices to initially ask, as a normative matter, whether the judiciary should resolve the controversy in our constitutional …

Restraining Judicial Application Of The "Safe Harbor" Provision In The Electoral Count Act, Derek T. Muller

Journal Articles

The Electoral Count Act of 1887, as codified in part at 3 U.S.C. § 5, includes a "safe harbor" for states to resolve disputes in their choices of presidential electors. Congress will treat as "conclusive" a "determination" about "any controversy or contest concerning the appointment" of presidential electors, if that determination is made "at least six days" before the time the electors are to meet. This is a rule governing how Congress handles "the counting of electoral votes as provided in the Constitution."

It is not a judicially-enforceable rule for courts to heed. And it is a rule that state …

The Superfluous Fifteenth Amendment?, Travis Crum

Scholarship@WashULaw

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both …

Reconstructing Racially Polarized Voting, Travis Crum

Scholarship@WashULaw

Racially polarized voting makes minorities more vulnerable to discriminatory changes in election laws and therefore implicates nearly every voting rights doctrine. In Thornburg v. Gingles, the Supreme Court held that racially polarized voting is a necessary—but not a sufficient—condition for a vote dilution claim under Section 2 of the Voting Rights Act. The Court, however, has recently questioned the propriety of recognizing the existence of racially polarized voting. This colorblind approach threatens not only the Gingles factors but also Section 2’s constitutionality.

The Court treats racially polarized voting as a modern phenomenon. But the relevant starting point is the 1860s, …