Election Law Commons^™

Threading The Needle In Extreme Partisan Gerrymandering Cases, Michael Gentithes

Akron Law Faculty Publications

Recent Supreme Court jurisprudence paints a grim picture for future reform to address extreme partisan gerrymandering. The decisions in Rucho v. Common Cause and Moore v. Harper appear to foreclose progress at both the federal and state level. Reformers must neither create unmanageable legal standards for adjudication in federal litigation, nor ask state courts to transgress ordinary bounds of judicial review when interpreting state laws that might address gerrymandering. But there remains a path forward that focuses on clear and detailed state constitutional mandates to curb gerrymandering practices. Beneath their rhetoric, these decisions support clear legal rules over broader democratic …

Narrow But Deep: The Mcculloch Principle, Collective-Action Theory, And Section Three Enforcement, Neil S. Siegel

Faculty Scholarship

In Trump v. Anderson, 144 S. Ct. 662 (2024), the Supreme Court of the United States held that the Colorado Supreme Court erred in excluding President Donald J. Trump from the Republican Party's primary ballot in the state.  The Court reasoned that the Constitution makes Congress, not the states, solely responsible for enforcing Section 3 of the Fourteenth Amendment.  Scholars of Section 3 have demonstrated that Section 3 is self-executing, so the Court's rationale lacks a sound basis in the original or contemporary meaning of the text of the Civil War Amendments, the original intent of their drafters, or …

The Riddle Of Race-Based Redistricting, Travis Crum

Scholarship@WashULaw

The Supreme Court has adopted divergent interpretations of the Equal Protection Clause as applied to race and redistricting. Vote dilution doctrine requires mapmakers to consider race to ensure that racial minorities are not packed or cracked. Congress, moreover, has embraced vote dilution doctrine in Section 2 of the Voting Rights Act. By contrast, racial gerrymandering doctrine triggers strict scrutiny if mapmakers subordinate traditional redistricting principles to race, thereby threatening Section 2’s constitutionality.

To resolve this doctrinal riddle, this Essay examines whether, as originally understood, the Fourteenth or Fifteenth Amendment governed the use of race during redistricting. The Equal Protection Clause …

Voting Under The Federal Constitution, Travis Crum

Scholarship@WashULaw

There is no explicit, affirmative right to vote in the federal Constitution. At the Founding, States had total discretion to choose their electorate. Although that electorate was the most democratic in history, the franchise was largely limited to property-owning White men. Over the course of two centuries, the United States democratized, albeit in fits and starts. The right to vote was often expanded in response to wartime service and mobilization.

A series of constitutional amendments prohibited discrimination in voting on account of race (Fifteenth), sex (Nineteenth), inability to pay a poll tax (Twenty-Fourth), and age (Twenty-Sixth). These amendments were worded …