Election Law Commons^™

Citizen Led Initiatives - Constitutional Amendments & Statutes, Priya Baskaran

Research Reports & White Papers

50-state survey of provisions for amending state constitutions.

Antiquated Practices In Mississippi That Are Impeding The Right To Vote, Amanda Noel

SLU Law Journal Online

Mississippi is historically one of the most difficult states to cast a vote, especially for marginalized groups. Despite voting becoming more accessible throughout the United States, recently, Mississippi courts and legislature have sought to reverse years of progress by denying those convicted of felonies the right to vote upon reform and by making it a crime to assist others in casting absentee and mail-in ballots. In this paper, Amanda Noel discusses the implications of Mississippi’s attempts at disenfranchisement and proposes feasible solutions to aid those in accessing their fundamental right to vote.

Money Talks: The Disproportionate Influence Of Corporations On U.S. Governance Today, David C. Hayter

Lewis & Clark Law Review

Corruption: “Dishonest or illegal behavior especially by powerful people (such as government officials . . . )”; and “inducement to wrong by improper or unlawful means (such as bribery).”

What does the word “corruption” first bring to mind? For some, maybe a foreign country—where political regimes blatantly use the government as a tool to further personal agendas or gains without due consideration of the citizenry. For others, a fictional movie or TV show depicting politicians and police officers providing protections to mafia members in exchange for cash. No matter what comes to mind, many today think of corruption as manifested …

Can The Law Of Democracy Save Democracy?, Helen L. Norton

Publications

No abstract provided.

Despair For Democracy, Bennett L. Gershman

Pace Law Review

In the convoluted terrain of American democracy, the proliferation of lies, misinformation, conspiracy theories, and paranoid thinking has emerged as a pervasive force, undermining the foundational principles upon which the nation was built. This article embarks on a penetrating exploration of the multifaceted challenges posed by these phenomena, exacerbated by the divisive rhetoric and provocative incitements to violence perpetuated by the Trump administration. As the fabric of truth unravels, the rule of law stands as a critical linchpin in preserving the integrity of democracy, serving as a bulwark against the encroachment of authoritarianism and the unchecked spread of disinformation.

Against …

Why Not More Seats? Increasing The House Of Representative's Size Using The Least Populous State Solution, Jennifer Kindred Mitchell

Pace Law Review

Representative democracy is for the people, by the people. But what happens when the connection between the people’s representative and their constituents erodes over time due to increased population and district size? The United States House of Representatives’ membership has been capped at 435 for almost 100 years leading to an increase in the average district size from 280,875 in 1930 to 761,169 in 2020. House membership and constituents represented by each member is out of balance, causing a decrease in representative democracy, large over and underrepresented district disparities, and feelings of disenfranchisement by citizens. Therefore, this paper premises that …

Impending Peril: Rethinking The Future Of Democracy, Karen J. Greenberg

Fordham Law Voting Rights and Democracy Forum

In their new books, Anne Applebaum and Timothy Snyder explore the vulnerabilities that plague democracies globally and in the United States. Documenting the elements that threaten democracy, they share a vision of the future that demands a deepened understanding of the forces that oppose democracy—among them, corruption, disinformation and isolation. Offering visions of a more enlightened public space, and a heightened sense of empathy, they each attempt to provide a roadmap to a more equitable, just, and life-affirming future.

Effects Of Gerrymandering On State Social Policy, Gary D. Brinker

eJournal of Public Affairs

Partisan Bias occurs when an election results in a party gleaning a significantly different proportion of legislative seats than the proportion of votes cast for that party. It can be strategically produced via gerrymandering and is thought by many to threaten the basic principles of democracy. This research uses the 2022 state election results to compute statewide measures of Partisan Bias, then analyzes the correlation with controversial state social policies. Results showed that the redistricting method used and the percent of the party’s legislators were related to Partisan Bias. Analysis also showed that Partisan Bias explains significant levels of variance …

Finding Condorcet, Nicholas O. Stephanopoulos

Washington and Lee Law Review

Instant-runoff voting (“IRV”) is having a moment. More than a dozen American localities have adopted it over the last few years. So have two states. Up to four more states may vote on switching to IRV in the 2024 election. In light of this momentum, it’s imperative to know how well IRV performs in practice. In particular, how often does IRV elect the candidate whom a majority of voters prefer over every other candidate in a head-to-head matchup, that is, the Condorcet winner? To answer this question, this Article both surveys the existing literature on American IRV elections and analyzes …

Protecting Minority Representation In An Era Of Political Polarization And The Hollowing Out Of Voting Rights Protections, Henry L. Chambers Jr.

Washington and Lee Law Review

The United States Supreme Court has hollowed out various voting rights protections, leaving all voters—minority and nonminority—less protected in a politically polarized America. Surprisingly, the Court has continued to protect representation for minority race voters who live in racially polarized areas. However, minority race voters risk losing that protection, typically provided through majority-minority districts authorized under the Voting Rights Act, if they build cross-racial coalitions with their neighbors. Under the Court’s interpretation of the VRA, cross-racial voting coalitions may be less protected than local majorities comprised of a single race of voters. The loss of such protection could leave their …

Unprincipled All The Way Down, Wilfred U. Codrington Iii

Washington and Lee Law Review

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 …

A Major Wrong On A Private Right Of Action Under The Voting Rights Act, Macin Graber, Joshua A. Douglas

Washington and Lee Law Review

In Brnovich v. Democratic National Committee, Justice Neil Gorsuch posited in a short concurrence that Section 2 of the Voting Rights Act (“VRA”) does not confer a private right of action. That idea seemingly came out of nowhere, as Supreme Court precedent was clear and no one had suggested that the VRA did not allow private parties to bring suit. Justice Gorsuch’s one-paragraph concurrence was both unsupported and wrong. Even the single case he cited did not support his proposition.

An Arkansas district court and then the Eighth Circuit, however, followed Justice Gorsuch’s lead, ruling that only the federal Department …

Voting Rights In A Politically Polarized Era . . . And Beyond, Mark E. Rush

Washington and Lee Law Review

This Article places the impact of the Voting Rights Act (“VRA”) in historical and futuristic context. There is no gainsaying that the VRA has had a tremendously positive impact in reversing or, at least, buffering the impact of discrimination throughout United States history. This is particularly—and sadly—manifest in the actions taken by some states to restrict access to the polls and voter registration in the wake of the Supreme Court’s Shelby County decision. A healthy democracy requires free and fair elections. Therefore, it is necessary to roll back such discriminatory laws. Yet, the battle over voting rights now takes place …

Foreword: Voting Rights In A Politically Polarized Era, Maureen Edobor, Christopher B. Seaman

Washington and Lee Law Review

American democracy is under profound stress. Increasing polarization and a winner-take-all mentality to politics have led to increased conflict both within the halls of Congress and nationwide. In an era of exceedingly close elections where control of the Presidency, Congress, and state governments can turn on a relative handful of votes, the laws and processes governing democracy have themselves become a battleground.

Legal Support For Local Election Officials, Rebecca Green

Washington and Lee Law Review

Local election officials (“LEOs”) face enormous pressure. They must administer elections when a wide swath of the American public has grown mistrustful of their work; they increasingly face ominous personal attacks and threats; they cope with chronic underfunding of elections; and they must navigate frequent changes in the law governing elections. Lawyers provide a critical avenue of support for local election officials. They provide guidance on how to implement legislative mandates and judicial orders; they anticipate and prevent disputes from arising; and they represent election officials when they or their offices are sued—a more common occurrence today than ever. Although …

The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw

Articles

In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates …

Democratic Erosion And The United States Supreme Court, Jenny Breen

Utah Law Review

For many decades, confidence in American institutions and political culture consistently led scholars to sideline questions about “regime change” in the United States. And for many years, that approach seemed justified. Democratic institutions were firmly rooted and stable, and American voters participated in free and fair elections that resulted in the peaceful transfer of power between parties and candidates. Then came the campaign of Donald Trump and all that has followed since, including open challenges to the most basic and fundamental democratic norms. These changes have led many voters, commentators, and scholars to ask: Is democracy eroding in the United …

A Restatement Of Democracy, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Debates about democracy are everywhere. Extremists, whether on the streets of Washington or Brasilia, perpetrate violence under the banner of democracy. But what do we mean when we talk about democracy? The debates, in the streets, popular media, or pages of academic journals, leave one wanting for depth and precision. This Article thus aims to provide an analytically useful model of Western democracy by surveying the vast and complex literature and distilling from that literature a series of core elements. From this exercise, this Article identifies the following four elements of democracy: majoritarianism, individual contestation, reason-giving, and deliberation. Although the …

Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes

Seattle University Law Review

The information we gathered during 2021–2023 shows that critical faculty and other academic resources are present throughout most of U.S. legal academia. Counting only full-time faculty, our limited research identified 778 contacts in 200 schools equating to nearly four contacts on average per school. But no organized critical “core” had coalesced within legal academia or, more broadly, throughout higher education expressly dedicated to defending and advancing critical knowledge and its production up to now. And yet, as the 2021–2022 formation of the Critical (Legal) Collective (“CLC”) outlined below demonstrates, many academics sense or acknowledge the need for greater cohesion among …

When Ballots Are Blank: Write-In’S Serving Local Government And The Implications For A Healthy And Vibrant Democracy, Thomas J. Ruter

School of Business Student Theses and Dissertations

Our democracy depends on having a supply of candidates running for elected office, but in some instances, no one wants to run. This phenomenological study asks what the effects on a healthy and vibrant democracy are if ballots are blank and the seat is filled through write-in or appointment. Rooted in democratic theory, this study explores small, rural city elections where write-ins won election. Understudied, local governments are responsible for decisions affecting the lives of millions of people each day. Workforce scarcity, the alienation of young Americans from politics, government bashing, nasty campaigns, threats of physical harm, and other barriers …

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.

Advancing America’S Emblematic Right: Doctrinal Bases For The Fundamental Constitutional Right To Vote Per Se, Susan H. Bitensky

University of Miami Law Review

This Article identifies and examines the Supreme Court’s longstanding unintelligibility with respect to recognition of a fundamental right to vote per se under the Constitution. In a host of equal protection cases, the Court’s refusal to “say what the law is” in this regard has produced a chaotic jurisprudence on the status of the right. Because ours is a constitutional schema consisting of multiple types of rights to vote, the refusal manifests as judicial reliance on and acclamation of some unspecified right to vote. It is refusal by lack of clarity. The unsorted right has led some scholars to conclude …

Citizen Enforcement Laws Threaten Democracy, David A. Carrillo, Stephen M. Duvernay

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Redistricting’S Ultimate Antidote, Douglas M. Spencer

Publications

No abstract provided.

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.

One Person, How Many Votes? Measuring Prison Malapportionment, Ian Bollag-Miller

Fordham Law Voting Rights and Democracy Forum

“One-person, one-vote” is a fundamental principle of democracy. In practice, however, vote distribution among population groups is often less than equal. Even in established democracies, prison malapportionment—the distribution of legislative seats by counting incarcerated people in their prisons’ districts rather than their home districts—is one example of a practice that distorts voter representation. Prison malapportionment allows less populous districts that house prisons to maximize their voting power at the expense of more densely populated districts from which many incarcerated people previously lived. While there has been significant scholarship on the causes and effects of prison malapportionment, there is no standard …

Depoliticizing The Supreme Court Through Term Limits: A Worthwhile Reform Effort, Kara King

Fordham Law Voting Rights and Democracy Forum

The United States Supreme Court is in a legitimacy crisis. Americans are losing faith in the Supreme Court as an independent branch of government. As a result, policymakers and academics have put forth several proposals to reform the Court. The concept of an eighteen-year term limit maintains some bipartisan support and stands out as the most likely reform. This Article argues that term limits could help depoliticize the nomination process, bring greater stability to the Court, and restore confidence in the Court.

Taking History Seriously: Marjorie Taylor Greene, Reflections On Progressive Lawyering, And Section 3 Of The Fourteenth Amendment, Andrew G. Celli Jr.

Fordham Law Voting Rights and Democracy Forum

History has lessons to teach, and lawyers can learn from and use history in ways other than by cherry-picking from it. This Article contends that, while American history may be vexed, progressive lawyers can fully embrace history and hold it up into the light for consideration, all in service of progressive ends.

This Article describes a recent litigation that illustrates the point. In March 2022, the Author, together with other lawyers and a non-partisan pro-democracy group, represented voters from Georgia’s fourteenth congressional district in their effort to disqualify U.S. Representative Marjorie Taylor Greene from the Georgia ballot—based upon Section 3 …

Increasing Voter Investment In American Democracy: Proposals For Reform, Adam Drake

Fordham Law Voting Rights and Democracy Forum

Millions of Americans choose to stay home every election cycle. Polling suggests that these nonvoters are either apathetic with respect to the democratic process or feel alienated from the United States government. Reforms to the democratic system should focus on alleviating these sentiments, ultimately encouraging more voters to show up to the polls. As turnout increases, so too does the legitimacy and stability of the U.S. government.

With that goal in mind, this Article advocates for a five- prong approach to reforming the electoral system. The first proposed step is to eliminate unnecessary barriers to voting by establishing federal automatic …

I Hope Tilden Was Right, Jerry H. Goldfeder

Fordham Law Voting Rights and Democracy Forum

No abstract provided.