Election Law Commons^™

The Ceo And The Hydraulics Of Campaign Finance Deregulation, Sarah C. Haan

Northwestern University Law Review

Voters increasingly view their consumer activities, not their campaign contributions, as the most meaningful way to participate in politics. In 2014, after it became public that Mozilla’s CEO, Brendan Eich, had made a controversial political donation in a state ballot proposition, consumer pressure led to his resignation. Eich’s downfall and the politicization of retail markets means that business leaders are unlikely to respond to McCutcheon v. FEC by embracing transparency with their campaign donations, and also suggests that campaign finance deregulation is causing hydraulic effects that the Supreme Court has failed to anticipate. This Essay explores what “economic reprisal” means …

What's At Stake?: Bluman V. Federal Election Commission And The Incompatibility Of The Stake-Based Immigration Plenary Power And Freedom Of Speech, Alyssa Markenson

Northwestern University Law Review

Section 441e of the U.S. Code prohibits “foreign nationals”—all noncitizens except lawful permanent residents—from making any contribution or expenditure in any federal, state, or local election. In Bluman v. Federal Election Commission, the Supreme Court summarily affirmed a three-judge district court’s decision to uphold the law based on the government’s compelling interest in preventing foreign influence over U.S. elections. Notably, Bluman’s holding was animated by its reasoning that the extent of First Amendment protection should be directly tied to the aliens’ stake in American society—a reflection of the Supreme Court’s jurisprudence since the middle of the twentieth century that seeks …

Remedial Equilibration And The Right To Vote Under Section 2 Of The Fourteenth Amendment, Michael T. Morley

Faculty Scholarship

No abstract provided.

Administering Section 2 Of The Voting Rights Act After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

Publications

Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect. This Article argues that the courts, in partnership with the Department of Justice, could reform section 2 so that it fills much of the gap left by the Supreme Court's evisceration of section …

A Quantum Congress, Jorge R. Roig

Scholarly Works

This article tries to address the problem of a corrupt and broken electoral system that has been captured by special interests through big money spending in political campaigns, while at the same time preserving the spirit of the Free Speech Clause of our Constitution. In doing so, this article first reviews and summarizes the different alternatives proposed as potential fixes for the campaign finance problem. It then explains why none of the proposed alternatives can accomplish the dual goals set out above. Finally, the article briefly sketches a proposal for a fundamental reworking of our representative democracy by substituting legislative …

Fighting Foreign-Corporate Political Access: Applying Corporate Veil-Piercing Doctrine To Domestic-Subsidiary Contributions, Ryan Rott

Michigan Law Review

Campaign finance regulations limit speech. The laws preclude foreign nationals, including foreign corporations, from participating in U.S. politics via campaign contributions. The unusual characteristics of corporations, however, may allow foreign corporations to exploit a loophole in the regulatory regime. A foreign corporation may contribute to political campaigns by acquiring a domestic subsidiary and dominating it. This Note addresses how these unusual corporate behaviors enable foreign corporations to illegally corrupt the political process. This Note concludes that to close the loophole without violating the free speech rights of domestic subsidiaries, Congress should enact legislation which would apply corporate veil-piercing theory to …

Rethinking Transparency In U.S. Elections, Rebecca Green

Faculty Publications

Bush v. Gore catapulted this country into a crisis of confidence in the management of our elections. Despite reforms since 2000, public confidence in election administration continues to wane. Are dead people on the rolls? Are noncitizens voting? Are provisional ballots wrongly rejected? State election transparency statutes meant to reassure the public that elections are producing legitimate results are often conflicting, vague, and even nonexistent. Exacerbating the problem, the last two decades have witnessed huge changes that offset the transparency balance. Dramatic changes in how Americans vote, how elections are administered, and who scrutinizes the election process call for a …

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

University of Richmond Law Review

No abstract provided.

The Meme Of Voter Fraud, Atiba R. Ellis

Catholic University Law Review

The meme of voter fraud is the idea that unworthy voters are attacking the electoral system by voting fraudulently through impersonation or other bad acts. Although scholars of election law aptly demonstrate that the meme is a myth, the meme nonetheless endures as a rationale for the continued passage of heightened voter regulations like voter identification laws. Scholarship critiquing the voter fraud meme relies on partisanship as the prime explanation for voter fraud arguments. This explanation is incomplete in light of the fact that proponents of the myth continue to believe it on an ideological level even when the lack …

Judicial Diversity After Shelby County V. Holder, William Roth

Michigan Law Review First Impressions

In 2014, voters in ten of the fifteen states previously covered by the Voting Rights Act ("VRA") preclearance formula-including six of the nine states covered in their entirety-will go to the polls to elect or retain state supreme court justices. Yet despite the endemic underrepresentation of minorities on state benches and the judiciary's traditional role in fighting discrimination, scholars have seemingly paid little attention to how Shelby County v. Holder's suspension of the coverage formula in section 4(b) has left racial minorities vulnerable to retrogressive changes to judicial-election laws. The first election year following Shelby County thus provides a compelling …

"Lotteries As An Alternative Selection Method For Representatives", Hélène Landemore

Schmooze 'tickets'

No abstract provided.

Toward An Alternative Theory Of Constitutional Design, Emily Zackin, Mila Versteeg

Schmooze 'tickets'

No abstract provided.

Disenfranchising America’S Youth: How Current Voting Laws Are Contrary To The Intent Of The Twenty-Sixth Amendment, Sarah Fearon-Maradey

The University of New Hampshire Law Review

[Excerpt] “Laws attempting to suppress student voters are not a new advent. Since the Twenty-Sixth Amendment lowered the voting age from twenty-one to eighteen in 1971, states have been passing legislation that has challenged, restricted, and continuously narrowed the eligibility of students to vote. The reasoning behind these laws generally focuses on the belief that student voters dilute the power of permanent resident voters, tend to vote in democratic blocks, and are not sufficiently invested in the community. Regardless of the motivation, these voting laws often have the effect of disenfranchising non-informed students, who either miss the opportunity to vote …

A Court For The One Percent: How The Supreme Court Contributes To Economic Inequality, Michele E. Gilman

All Faculty Scholarship

This Article explores the United States Supreme Court’s role in furthering economic inequality. The Occupy Wall Street movement in 2011 not only highlighted growing income and wealth inequality in the United States, but also pointed the blame at governmental policies that favor business interests and the wealthy due to their outsized influence on politicians. Numerous economists and political scientists agree with this thesis. However, in focusing ire on the political branches and big business, these critiques have largely overlooked the role of the judiciary in fostering economic inequality. The Court’s doctrine touches each of the major causes of economic inequality, …

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 …

Corruption Temptation, Guy-Uriel Charles

Faculty Scholarship

In response to Professor Lawrence Lessig’s Jorde Lecture, I suggest that corruption is not the proper conceptual vehicle for thinking about the problems that Professor Lessig wants us to think about. I argue that Professor Lessig’s real concern is that, for the vast majority of citizens, wealth presents a significant barrier to political participation in the funding of campaigns. Professor Lessig ought to discuss the wealth problem directly. I conclude with three reasons why the corruption temptation ought to be resisted.

Hollowed-Out Democracy, Kate Andrias

Articles

Professors Joseph Fishkin’s and Heather Gerken’s essay for this symposium, The Two Trends That Matter for Party Politics, along with the larger project of which it is a part, marks a notable turn (or return) in the law-of-democracy field. Unlike much recent scholarship, Fishkin’s and Gerken’s work does not offer a comprehensive theory of corruption or equality, but instead analyzes the relationship between campaign finance law and the actual functioning of political parties in our democracy. In brief, Fishkin and Gerken tell us that our contemporary political parties are at once highly polarized and oddly weak. They claim this is …

Election Law's Lochnerian Turn, Ellen D. Katz

Articles

This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.

State Session Freeze Laws—Potential Solution Or Unconstitutional Restriction?, Dru Swaim

Seattle University Law Review

Since the Citizens United decision in 2010 reduced Congress’s ability to constitutionally regulate money in elections, proponents of campaign finance reform have looked for alternative ways to achieve the goals of greater transparency and reduce the amount of money spent in federal elections. In the three years since Citizens United, the amount of money spent in federal campaigns has increased exponentially. In fact, the total amount of money spent in federal elections has nearly doubled since 2000. Citizens United represents a serious blow to the traditional methods used to restrict the amount of money in politics: limitations on the amounts …

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 …

Ometz – Citizens For Proper Administration And Social Justice In Israel V. Rochberger, Miriam Naor, Neal Hendel, Elyakim Rubinstein, Zvi Zylbertal, Esther Hayut, Edna Arbel, Asher Grunis

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Indictments were filed against Mr. Shimon Gapso, the Mayor of Nazareth Illit and Mr. Itzhak Rochberger, the Mayor of Ramat HaSharon. Mr. Gapso is accused of taking a bribe. Mr. Rochberger is accused of falsifying corporate documents and of fraud and violation of trust in a corporation. The city council of Nazareth Illit has decided, in a majority vote, not to relieve Mr. Gapso …

Election Evidence: The Promises And Realities Of California's Citizen Commission, Brett Piersma

William & Mary Bill of Rights Journal

No abstract provided.

Defining Corruption And Constitutionalizing Democracy, Deborah Hellman

Michigan Law Review

The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on the giving and spending of money in connection with elections only when they serve to avoid corruption or the appearance of corruption. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides …

Section 501(C)(4) Advocacy Organizations: Political Candidate-Related And Other Partisan Activities In Furtherance Of The Social Welfare, Terence Dougherty

Seattle University Law Review

In the wake of the 2012 presidential election, tax and political law lawyers are left with a number of unanswered questions concerning the political activities of tax-exempt organizations. Despite the importance of these questions, there are striking gaps in the authority of federal tax law governing the conduct of political candidate and other partisan-related activities by tax-exempt organizations. Assuming activities in furtherance of partisan interests are activities that support private interests, I consider what this authority may tell us about the permissibility of Section 501(c)(4) organizations engaging in partisan political activities and having as a constitutive purpose a partisan political …

Considering The Gerrymander , Leroy C. Hardy

Pepperdine Law Review

No abstract provided.

Election Delays In 2012, Rebecca Green, Emily Lippolis, Shanna Reulbach, Andrew Mccoy

Faculty Publications

No abstract provided.

Citizens United: A World Of Full Disclosure, Maxfield Marquardt

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

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 Right Choice For Elections: How Choice Voting Will End Gerrymandering And Expand Minority Voting Rights, From City Councils To Congress, Rob Richie, Andrew Spencer

University of Richmond Law Review

No abstract provided.

General Knit Revives Hollywood Ceramics; The Nlrb Again Prohibits Campaign Misrepresentations, Dwight Tracy Shaw

Pepperdine Law Review

No abstract provided.