Election Law Commons^™

A Recount Of The Recount: Obenshain V. Herring, Hon. Beverly Snukals, Maggie Bowman

University of Richmond Law Review

No abstract provided.

Expensive Free Speech: Western Tradition Partnership And The Silencing Of The Private Attorney General Doctrine, Jesse Kodadek

Montana Law Review

Expensive Free Speech: Western Tradition Partnership And The Silencing Of The Private Attorney General Doctrine

The Right To Vote Under State Constitutions, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article provides the first comprehensive look at state constitutional provisions explicitly granting the right to vote. We hear that the right to vote is "fundamental," the "essence of a democratic society," and "preservative of all rights." But courts and scholars are still searching for a solution to the puzzle of how best to protect voting rights, especially because the U.S. Supreme Court has underenforced the right to vote. The answer, however, is right in front of us: state constitutions. Virtually every state constitution includes direct, explicit language granting the right to vote, as contrasted with the U.S. Constitution, which …

Perfect Is The Enemy Of Fair: An Analysis Of Election Day Error In Ohio's 2012 General Election Through A Discussion Of The Materiality Principle, Compliance Standards, And The Democracy Canon, Eric H. Kearney, Pavan V. Parikh, Bethany E. Sanders

Cleveland State Law Review

The continual change in and review of election systems have not overcome the reality that elections systems, including Ohio’s system, could not weather a close or controversial election without delay, litigation, or doubt as to the result. If such a conflict would arise, the actions taken in polling places across the state could be critical in determining a victor within the state and possibly the nation. Ohio, like many states, has responded to this circumstance with an incredibly technical and rule driven approach to election administration. This approach to elections administration is deficient for two primary reasons: (1) it refuses …

A Recount Of The Recount: Obenshain V. Herring, Maggie Bowman

Law Student Publications

Because of the infrequency of recounts and the lack of judicial institutional knowledge, a plain-English guide is needed to assist judges and attorneys involved in recounts. The purpose of this essay is to provide such a guide as a resource for future Virginia recounts. Part I outlines the process of a recount and discusses how a recount differs from an election contest. Part I also briefly discusses the history of election recounts in Virginia, highlighting the two most recent state-wide recounts, Deeds and Obenshain. Part II delves more deeply into the primary issues encountered by the three-judge panel in Obenshain, …

Election Law Pleading, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article explores how the Supreme Court’s recent pleading decisions in Twombly and Iqbal have impacted election litigation. It explains how Twombly and Iqbal’s “factual plausibility” standard usually does not help in an election case, because there is often little factual dispute regarding the operation of the election practice. Instead, the real question in a motion to dismiss is whether the plaintiff has stated a viable cause of action against the government defendant who is administering the election. But Twombly and Iqbal’s rule does not assist in answering this question. That is, Twombly and Iqbal are incongruent with …

Reichert V. State Ex Rel. Mcculloch And The Open Door For Increased Pre-Election Substantive Judicial Review, Carina Wilmot

Montana Law Review

In Reichert v. State ex rel. McCulloch,1 the Montana Supreme Court addressed the constitutionality of a legislative referendum proposing changes to the qualification and selection of Montana Supreme Court justices. In reviewing the referendum, the Court focused on the threshold issues of ripeness and recusal before addressing its constitutionality.2 Reichert highlights the complexity of ripeness as a threshold question and clarifies when and how the Court conducts pre-election judicial review.

This note focuses only on the procedural holding of ripeness, from which Justice Baker dissented. This note does not analyze judicial recusal or the constitutionality or severability of the referendum …

Discouraging Election Contests, Joshua A. Douglas

Law Faculty Scholarly Articles

This essay offers a few proposals for discouraging losing candidates from contesting the certified result of an election. The ultimate goal in any election, of course, is to ensure that a state declares as the winner the person who actually received the most votes. But when an election is close, a candidate on the losing side might see an incentive to continue the fight in the courts on the off-chance that it would change the outcome. The candidate could challenge, for example, certain provisional or absentee ballot—even if the likelihood that the candidate will win is slim (but still theoretically …

The Original Sin Of Campaign Finance Law: Why Buckley V. Valeo Is Wrong, Jessica A. Levinson

University of Richmond Law Review

No abstract provided.

Photo Id, Provisional Balloting, And Indiana's 2012 Primary Election, Michael J. Pitts

University of Richmond Law Review

No abstract provided.

Discouraging Election Contests, Joshua A. Douglas

University of Richmond Law Review

This essay proceeds in three sections. Section I lays the founda- tion for why our system encourages-or at least does not dis-suade-the filing of post-election contests in close races. Section

II posits that election contests are often bad for our democracy, explaining why post-election litigation might harm the ideals of finality, certainty, and legitimacy in the election process. SectionIII sets out three structural reforms that might make losing candidates think twice before initiating an election contest. Ultimately, the goal of this essay is to promote a broader discussion of the propriety of post-election litigation and what we can do to …

Special Interest Money: A Threat To Democratic Government, David L. Boren

Pepperdine Law Review

No abstract provided.

Procedural Fairness In Election Contests, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article uncovers the different mechanisms states use to resolve election contests. One universal rule regarding post-election disputes is that "[t]here is no common law basis for election challenges." As the Iowa Supreme Court explained, "[t]he right to contest an election is only conferred by statute, and contestants must strictly comply with the provisions of the statute in order to confer jurisdiction. Thus, contestants are limited to the scheme provided by the legislature." An inquiry into election contests therefore entails a survey of state election statutes and constitutions. Although it is possible that parties may file in federal court and …

Ballot Design As Fail-Safe: An Ounce Of Rotation Is Worth A Pound Of Litigation, Mary Beth Beazley

Scholarly Works

For generations, some candidates have argued that first-listed candidates gain ‘‘extra’’ votes due to primacy effect, recommending ballot rotation to solve the problem. These votes, however, are generally intentional votes, accurately cast, and rotation is controversial. This article argues that rotation is appropriate because it mitigates the electoral impact of not only primacy effect, but also of two categories of miscast votes. First, rotation mitigates the impact of proximity-mistake votes, which can occur even on well-designed ballots when voters mis-vote for a candidate in proximity to their chosen candidate. Second, rotation mitigates the impact of mis-votes caused by flawed ballot …

Election Law And Civil Discourse: The Promise Of Adr, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article was the result of a Symposium that explored the potential promises of alternative dispute resolution (“ADR”) for resolving election law disputes. Both election law and ADR scholars opined on how ADR can help to achieve various goals for deciding contentious election law cases. My focus in this essay is narrower: I suggest that employing some features of ADR to resolve election disputes can help to improve the civil discourse of our elections and our political culture. That is, certain aspects of ADR can assist in reducing caustic language in election law judicial decisions, in the media’s reporting of …

Shelby County V. Holder And The Voting Rights Act: Getting The Right Answer With The Wrong Standard, Michael James Burns

Catholic University Law Review

No abstract provided.

Secrets, Lies, And Disclosure, Helen Norton

Publications

This symposium essay suggests that we can sometimes understand those who resist campaign disclosure or disclaimer requirements as interested in keeping a secret and occasionally even in telling a sort of lie about the source or intensity of support for a particular candidate or cause. Such secrets and lies threaten listeners’ autonomy interests when the speaker seeks to keep such secrets (and sometimes seeks to tell such lies) to enhance her ability to influence her listeners’ decisions. For these reasons, I suggest greater attention to the reasons speakers seek to keep secrets (or occasionally tell such lies) in assessing the …

Election Law And Government Ethics, Christopher R. Nolen, Jeff Palmore

University of Richmond Law Review

The last two years have produced modest "tweaks" to Virginia'selection laws. Most notably, 2011 ushered in the decennial tradition of reapportionment and redistricting. This article surveys developments in Virginia election law for 2010 and 2011 and focuses on those statutory developments that have significance or general applicability to the implementation of Virginia's election laws. Consequently, not every election-related bill approved bythe General Assembly is discussed.

Election Law, Christopher R. Nolen

University of Richmond Law Review

No abstract provided.

Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer

Journal Articles

More than fifty years ago, Congress enacted a prohibition against political campaign intervention for all charities, including churches and other houses of worship, as a condition for receiving tax deductible contributions. Yet the IRS has never taken a house of worship to court for alleged violation of the prohibition through political comments from the pulpit, presumably at least in part because of concerns about the constitutionality of doing so. This decision is surprising, because a careful review of Free Exercise Clause case law - both before and after the landmark Employment Division v. Smith decision - reveals that the prohibition …

Researching Initiatives And Referendums: A Guide For Florida, Elizabeth Outler

UF Law Faculty Publications

In Florida, direct democracy at the state level consists entirely of the initiative method of amending the State constitution. This constitutional provision was partly a response to the State’s history of obstacles to affording equitable legislative representation to all its citizens, a struggle with roots dating back to the Reconstruction era. The State constitution, governing statutes and regulations, and the Division of Elections Web site serve as the primary sources of information and guidance for those interested in the process of amending the State constitution by citizen-sponsored initiative.

The Value Of Incumbency: A Law And Economics Interpretation Of Primary Challenges, Robert Steinbuch

University of Arkansas at Little Rock Law Review

No abstract provided.

Taxing Political Donations: The Case For Corrective Taxes In Campaign Finance, David Gamage

Articles by Maurer Faculty

Command-and-control regulations are generally thought to be inferior to incentive-based alternatives. This essay proposes an incentive-based approach for regulating campaign finance. In place of our current regime of contribution ceilings, the essay calls for a graduated system of contribution taxes. Rather than capping the size of political donations at a specified dollar level, we should tax donations based on a schedule of graduated rates - the larger the size of a contribution, the higher the level of taxation.

Contribution taxes generate two primary advantages over contribution ceilings. First, contribution taxes preserve more total surplus. This surplus can be shared by …

How Not To Count Votes, John Copeland Nagle

Journal Articles

Rutherford B. Hayes defeated Samuel Tilden by one electoral vote in the presidential election of 1876. In Fraud of the Century: Rutherford B. Hayes, Samuel Tilden, and the Stolen Election of 1876, Roy Morris, Jr. concludes that the election was stolen from Tilden by Republican partisans serving on the canvassing boards in the three Southern states - Florida, Louisiana, and South Carolina - that were still under the control of Republican governments backed by the federal army. But in Centennial Crisis: The Disputed Election of 1876, Chief Justice William H. Rehnquist defends the integrity and the actions of the …

Cheap Talk Citizenship: The Democratic Implications Of Voting With Dollars, Bruce E. Cain

University of Richmond Law Review

No abstract provided.

Vouchers And Buckley: The Need For "Regime Change", Richard L. Hasan

University of Richmond Law Review

No abstract provided.

Political Realities And Unintended Consequences: Why Campaign Finance Reform Is Too Important To Be Left To The Lawyers, Kenneth R. Mayer

University of Richmond Law Review

No abstract provided.

Response To Voting With Dollars: A New Paradigm For Campaign Finance, Fred Wertheimer, Alexandra T.V. Edsall

University of Richmond Law Review

No abstract provided.

Dollars And Sense: A "New Paradigm" For Campaign Finance Reform?, Daniel A. Farber

University of Richmond Law Review

No abstract provided.

Voting With Cues, Elizabeth Garrett

University of Richmond Law Review

No abstract provided.