Election Law Commons^™

Administering Election Disputes, Rebecca Green

Faculty Publications

U.S. election administration has become supercharged with controversy. A process that should be mundane—casting and counting votes—has become the target of relentless litigation, much of which ends in non-merits rulings that risk perpetuating rather than resolving public concerns. The high volume of election litigation is costly, strains election officials, and risks eroding public trust in both elections and the courts. Recognizing the need to resolve election claims fairly and efficiently, Administering Election Disputes examines administrative remedies as an under-theorized alternative to judicial resolution. Increased use of well-designed administrative election dispute resolution (AEDR) could reduce pressure on courts, deliver faster and …

Constitutional Structure And Election Law, Manoj Mate

William & Mary Bill of Rights Journal

Since Bush v. Gore, scholarship on election law has centered on a theoretical debate between rights-based and structural theory approaches, and the appropriate role and scope of judicial intervention in election law cases. However, these debates have not fully assessed the degree to which the Court’s approach to constitutional structure has fundamentally reshaped election law. Over the past two decades, the Court has increasingly emphasized the importance of constitutional structure-based approaches in election law cases.

This Article analyzes these dynamics and advances a typology of constitutional structure-based approaches in election law. Drawing on scholarship on modalities of interpretation and …

Electoral Due Process, Michael S. Kang

Northwestern University Law Review

Hyperpartisanship has hit century-long highs in American politics and is emboldening state government attempts to undermine election outcomes by using control over state lawmaking structure to strip away authority, and sometimes outright unseat, partisan opponents after they win elected office. Even as traditional norms against such moves have eroded, the Supreme Court has taken a pro-partisanship turn in removing judicial checks against such moves under equal protection and constitutional structure. This Article proposes shifting from challenges under those doctrines to a new approach under electoral due process for confronting this new generation of antidemocracy. Federal due process law restricts the …

Private Rights Of Action For Election Litigation In The Federal Courts, Derek T. Muller

Journal Articles

Election litigation is surging. But just as litigants pursue more election claims in federal courts than ever before, federal courts are growing more skeptical about their authority to hear them. This Essay, a contribution to the 2025 Arnold Lecture at the University of Arkansas Little Rock, William H. Bowen School of Law, examines the narrowing landscape of private rights of action in election law with a particular focus on claims brought ahead of the 2024 election. It traces the Supreme Court's shift toward formalism, the heavy emphasis on remedies found in federal statutes, and the diminishing avenues for private enforcement …

Malapportionment: A Murder Mystery, Daniel Wodak

Northwestern University Law Review

Malapportionment—electoral districts with divergent ratios of people to representation—was ruled to be unconstitutional in a widely venerated series of cases before the Warren Court. Those cases held that a principle of political equality, one person, one vote, is required by the Constitution. But what is the content of that principle? Many Justices and commentators declare that it is vague, empty, circular, or meaningless. This creates a murder mystery. Malapportionment was killed, but by what exactly? This Article seeks an answer by focusing on the Supreme Court’s commitments about the scope and strictness of one person, one vote: it …

A Democracy Denied—Act 236’S Unconstitutional Restriction On Arkansas’S Initiative And Referendum Rights, Megan Prettyman Halford

University of Arkansas at Little Rock Law Review

No abstract provided.

Litigating The 2024 Election, Richard Pildes

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

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

Publications

No abstract provided.

If It Was Good Enough To Work Against The Nazis . . . : Revitalizing The Foreign Agents Registration Act To Regulate Modern Foreign Electioneering, Troy Mccurry

Catholic University Law Review

News headlines from the 2016 election to the present have described an ongoing political scandal that is unmatched in modern history: continued attempts of foreign interference in U.S. elections. It is fairly obvious that the United States lacks adequate restrictions to prevent foreign interference in U.S. elections. It therefore needs a law that—while passing constitutional scrutiny—prohibits more foreign political activity than what is currently covered, especially in relation to social media. This should be a simple and effective legislative fix, a return to the core aspects of the original Foreign Agents Registration Act (FARA) that focuses on potential electioneering of …

The Internal Law Of Democracy, Kevin M. Stack

Vanderbilt Law Review

The conventional focus of election law is the constitutional, statutory, and judicial constraints on election officials. But the operation of elections also depends on the law that election officials themselves create. This “internal law of democracy”—produced by state and local election officials and addressed to election personnel and workers—provides on-the-ground guidance on registration, voting, and vote counting; specifies internal processes and protocols; and interprets and translates the meaning of constitutional and statutory law for use within the election bureaucracy.

This Article initiates examination of the internal law of democracy. The Article begins by introducing the idea of internal law—developed in …

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 …

Moore News About The Independent State Legislature Doctrine, Bruce Ledewitz

Duquesne Law Review

The big news about the Independent State Legislature Doctrine (Doctrine) is that, despite the expectations of most observers, including me,¹ the Supreme Court did not fully adopt the Doctrine in Moore v. Harper.² The majority opinion, written by Chief Justice Roberts, and joined by Justices Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson, held that state courts may apply their state constitutions to state legislation affecting federal elections in the course of what the opinion called the "ordinary exercise of state judicial review."³

The Scope Of Election Litigation, Michael T. Morley

Scholarly Publications

One way to think about the scope of a case is based on the range of parties who are or must be involved in it. The broader a case's scope in this regard, the more burdensome and costly it can be for plaintiffs to file and the more complicated and time consuming it may be for a court to adjudicate. Requiring large numbers of parties to be involved in a case can sometimes effectively preclude otherwise meritorious suits from being filed. This is especially true in election law disputes which often arise under harried circumstances and can be subject to …

One's Health Versus One's Right To Vote: How The Covid-19 Pandemic Changed The Legal Landscape Of Absentee/Mail-In Voting In The United States From The 2020-2024 Election Cycles, Tracey B. Carter

Law Faculty Scholarship

This Article examines how the COVID-19 pandemic reshaped the legal framework governing absentee and mail-in voting in the United States from 2020 through the 2024 election cycles. Through a comprehensive review of state statutes, election data, and litigation across multiple jurisdictions, the Article analyzes pre-pandemic absentee voting regimes, emergency modifications implemented during the 2020 election cycle, and post-pandemic developments in 2022 and 2024. It compares states that required an excuse for absentee voting with those adopting no-excuse or all-mail systems and evaluates the surge in mail-in ballot usage during the pandemic. The Article further surveys significant state-level lawsuits challenging absentee/mail-in …

Co-Managers? The Need For Clarification Regarding State And Federal Powers In Federal Elections, Amber Mccomas

Journal of the National Association of Administrative Law Judiciary

This article argues that the Court needs to clarify the distinction between the state and federal government’s roles in federal elections to avoid chaos and unconstitutional overreach. As a part of this clarification, the Court should also clarify how information is deemed “necessary.” This article looks specifically at one potential consideration: public fears regarding election security. Data and logic indicate that such fears should not be a consideration in the necessity determination as they are unreliable. Section II examines the background of the Election Assistance Commission, the applicable law, as well as criticism and support the agency has received since …

Election Administration As A Licensed Profession, Ganesh Sitaraman, Kevin M. Stack

Vanderbilt Law School Faculty Publications

This Essay argues that election administrators should be subject to a professional licensing regime, much like licensing in medicine and law. Making election administration a licensed profession would not only expand requirements for training, but also enhance the professional identification of these officials, reinforcing norms of integrity and impartiality. By raising barriers to entry, licensing would make it more costly for partisans to obtain these offices. Licensing could also improve public confidence in the professionalism of election administration. Such a reform meets our moment. While many states have increased training requirements for election administrators, significant gaps remain. Moreover, existing reforms …

Keeping The Faith: How The Fourteenth Amendment Should Protect Against Faithless Electors, Jennifer A. Cranmer

Akron Law Review

Every four years, citizens across the United States vote for a presidential candidate. However, those citizens are actually voting for electors who then vote for the president in the Electoral College on the citizens’ behalf. Electors become faithless when they do not vote for the candidate that they were pledged to vote for. In Chiafalo v. Washington, the Supreme Court upheld the validity of states enacting strict faithless elector laws that require electors to vote for the candidates they were pledged to vote for and impose penalties on electors who fail to do so. Yet many states have failed …

Voter Due Process And The "Independent" State Legislature, Michael P. Bellis

Northwestern University Law Review

In a series of opinions surrounding the 2020 presidential election, multiple U.S. Supreme Court Justices broke from precedent to signal support of the “independent state legislature theory” (ISLT), a formerly obscure interpretation of state legislatures’ power over the administration of federal elections. Proponents of the ISLT allege that the U.S. Constitution grants state legislatures plenary power in federal election contexts—including the power to discount ballots, redraw legislative maps, or appoint alternative slates of presidential electors. Although the Court denied certiorari in each case, across the denials four current Justices dissented because they considered the ISLT to be a proper interpretation …

An Alternative To The Independent State Legislature Doctrine, Bruce Ledewitz

Law Faculty Publications

One of the most momentous actions taken by the United States Supreme Court in the last term was not deciding a case but granting review at the end of the term in Moore v. Harper, the North Carolina congressional redistricting case. This is the case in which the Supreme Court appears likely to adopt some version of the Independent State Legislature Doctrine (Doctrine). In this essay, I will describe the actual case and the Doctrine. But I will also be offering an alternative to the Doctrine, one that I believe achieves some of the goals that the Justices who …

Election Administration Concerns Meet Claims Of A Fraudulent Election: A Comprehensive Analysis Of The 2020 Presidential Election And Its Aftermath In Wisconsin, Joe Franke

Marquette Law Review

The 2020 presidential election unearthed valid questions about how the election was administered and whether various state laws were properly followed. However, President Donald Trump and his closest allies routinely fail to distinguish between questions about whether state officials correctly interpreted and applied the state’ s election code and actual fraud or malfeasance. There is a significant difference between accusing election officials of wrongly interpreting state law or incorrectly implementing election procedures, and alleging that those same officials intended to rig the outcome. Failure to make this distinction has contributed to the stolen election narrative, which continues to roil the …

Defeating De Facto Disenfranchisement Of Criminal Defendants, Neil Sobol

Faculty Scholarship

In a democracy, voting is not only an important civic duty but also a right that governments owe to their citizens. However, by operation of law, forty-eight states deny voting rights to individuals based on criminal convictions. Activists and scholars attack de jure disenfranchisement as an improper collateral consequence that disproportionately impacts people of color. Although recent years show substantial reforms to reenfranchise defendants, an estimated 5.17 million defendants remained ineligible to vote in 2020.

While efforts to address de jure disenfranchisement remain necessary, a problem that has received considerably less attention is the de facto disenfranchisement of criminal defendants …

Rounding Up The Three-Fifths Clause: Eradicating Prison Gerrymandering In The South, Abigail N. Falk

Pepperdine Law Review

This Comment examines the phenomenon of prison gerrymandering, a practice that involves counting prisoners as residents of the counties where their state correctional facilities are located—rather than in their home communities—for redistricting and representational purposes. This practice of counting inflates the voting power of rural, white districts with large prison complexes and diminishes the voting power of minority communities. Prison gerrymandering has become especially pervasive across southern states while many of the South’s northern counterparts have eradicated this practice through legislative reform. This Comment proposes a solution to stop prison gerrymandering in the South, arguing a strategy to produce a …

Religious Gerrymandering: A New Avenue For Redistricting Challenges?, Jacqueline Rosen

Utah Law Student Scholarship

Recently, the Supreme Court significantly limited review of partisan gerrymandering claims, closing the door to a substantial portion of redistricting challenges. However, religious-based redistricting is an overlooked area that should be explored under both federal and state Constitutions. Existing redistricting standards can easily be applied to religious gerrymandering claims. In addition, the federal Establishment Clause may provide a basis for some especially egregious instances of religious gerrymandering. However, perhaps the least explored and most viable avenue for relief is through reliance on state constitutional protections, such as the unique language of Utah’s Constitution. Using Utah as a case study, I …

Federal Election Commission V. Cruz, Myles A. Roth

Tennessee Law Review

No abstract provided.

Religious Gerrymandering: A New Avenue For Redistricting Challenges?, Jacqueline Rosen

Utah Law Faculty Scholarship

Recently, the Supreme Court significantly limited review of partisan gerrymandering claims, closing the door to a substantial portion of redistricting challenges. However, religious-based redistricting is an overlooked area that should be explored under both federal and state Constitutions. Existing redistricting standards can easily be applied to religious gerrymandering claims. In addition, the federal Establishment Clause may provide a basis for some especially egregious instances of religious gerrymandering. However, perhaps the least explored and most viable avenue for relief is through reliance on state constitutional protections, such as the unique language of Utah’s Constitution. Using Utah as a case study, I …

Election Emergencies: Voting In Times Of Pandemic, Michael T. Morley

Scholarly Publications

Over the past century, two global pandemics have struck during American elections—the Spanish Flu of 1918 and COVID-19 in 2020. The legal system’s responses to these pandemics, occurring against very distinct constitutional backdrops concerning voting rights, differed dramatically from each other. These pandemics highlight the need for states to prepare to address not only public health crises, but election emergencies more broadly. States must adopt election emergency laws that both empower election officials to modify the rules of the electoral process as necessary to respond to these disasters, and also set forth “redlines,” identifying certain policies that, even in a …

Election Obstruction, Jason Marisam

Faculty Scholarship

In 2020 and 2022, multiple Republican county canvassers refused to perform their ministerial duty to approve election returns, obstructing the official certification of the results. The canvassers latched onto false claims of fraud and other conspiracies advanced by election deniers. They eventually relented because of court orders and public pressure. The elections produced official winners, and crisis was averted. But, as long as election denialism rots our political discourse, election obstruction by canvassers will be a persistent risk with significant dangers for our democracy. This Essay provides a brief history of election obstruction by canvassers, examines the modern link between …

Gaping Gaps In The History Of The Independent State Legislature Doctrine: Mcpherson V. Blacker, Usurpation, And The Right Of The People To Choose Their President, Mark Bonhorst, Michael W. Fitzgerald, Aviam Soifer

Mitchell Hamline Law Review

The so-called independent state legislature doctrine was the jurisprudential heart of the effort by former President Trump and allies to overturn the 2020 presidential election and was featured in the briefs for Texas v. Pennsylvania. The idea that state legislatures might have power to intervene against the popular vote for the electoral college helped animate the attack on the Capitol on January 6, 2021. Frighteningly, at the very end of the 2021 Term, the Supreme Court accepted review of a North Carolina case—Moore v. Harper—in which Republican Party legislators invoked the independent state legislature doctrine to contend that state legislators …

Voting Justice: Why The Attack On Voting Rights Is Best Understood As A "Justice" Issue, Yalda Nia

University of San Francisco Law Review

No abstract provided.

Trump’S Political Action Committee Wants A $60 Million Refund On Paying His Legal Fees – 3 Key Things To Know About Pacs, Richard Briffault

Faculty Scholarship

Save America, one of former President Donald Trump’s political organizations, is seeking a US$60 million refund from Make America Great Again, Inc., another Trump political organization that is less strictly regulated by federal rules.

Save America has paid Trump’s legal fees connected to multiple investigations into alleged criminal activities and is now down to less than $4 million in its account, The New York Times reported on July 31, 2023. It started 2022 with $105 million in the bank.

Trump’s use of political action committees, often known as PACs, to pay his mounting legal fees has raised questions about these …