Election Law Commons^™

Enforcing The Fifteenth Amendment, Ellen D. Katz

Book Chapters

This chapter examines efforts to enforce the Fifteenth Amendment in the period from United States v. Reese through Shelby County v. Holder. Reese and Shelby County expose the most rigorous stance the Court has employed to review congressional efforts to enforce the Fifteenth Amendment, while the years in-between show Congress and the Court working more in tandem, at times displaying remarkable indifference to blatant violations of the Fifteenth Amendment, and elsewhere working cooperatively to help vindicate the Amendment’s promise. Defying simple explanation, this vacillation between cooperation and resistance captures the complex and deeply consequential way concerns about federal power, …

Justice Ginsburg's Umbrella, Ellen D. Katz

Book Chapters

Near the end of her dissent in Shelby County v. Holder, Justice Ginsburg suggested a simple analogy to illustrate why the regional protections of the Voting Rights Act (VRA) were still necessary. She wrote that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

(Mis)Trusting States To Run Election, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article critically examines recent Supreme Court election law jurisprudence, with a particular eye toward cases involving state election administration—a hotbed of litigation at the Court in recent years. Election administration entails the rules of operating an election and encompasses laws such as voter identification requirements, regulation of primaries, and other "nuts-and-bolts" aspects of the voting process. The Article focuses primarily on the last decade, mainly because that is when states have increasingly enacted stricter election regulations, supposedly in the name of "election integrity," but more likely to gain partisan advantage for the ruling party. In addition, during the first …

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 …

Two-Time Presidents And The Vice-Presidency, Dan T. Coenen

Scholarly Works

Does the Constitution limit the ability of a twice-before-elected President to serve as Vice-President? This question, as it turns out, presents an intricate constitutional puzzle, the solution of which requires working through four separate sub-inquiries: Is a two-term President totally ineligible for the Vice-Presidency? Is such a person barred from election to the Vice-Presidency even if that person remains appointable to that office? Is a twice-before-elected President, even if properly placed in the Vice-Presidency, incapable of succeeding from that office to the Presidency? And even if such a succession can occur, must the resulting term of service as President expire …

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 …

Dismissing Deterrence, Ellen D. Katz

Articles

The proposed Voting Rights Amendment Act of 20144 (VRAA)[...]’s new criteria defining when jurisdictions become subject to preclearance are acutely responsive to the concerns articulated in Shelby County[ v. Holder]. The result is a preclearance regime that, if enacted, would operate in fewer places and demand less from those it regulates. This new regime, however, would not only be more targeted and less powerful, but, curiously, more vulnerable to challenge. In fact, the regime would be more vulnerable precisely because it is so responsive to Shelby County. Some background will help us see why.

A Tale Of Two Minority Groups: Can Two Different Minority Groups Bring A Coalition Suit Under Section 2 Of The Voting Rights Act Of 1965, Sara Michaloski

Catholic University Law Review

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 …

Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos

Articles

After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions—and at least some of them opted for a universalist approach—during the campaign …

The Geography Of Racial Stereotyping: Evidence And Implications For Vra ‘Preclearance’ After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

Publications

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This Article proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and who vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that …

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.

The Foundational Importance Of Voting: A Response To Professor Flanders, Joshua A. Douglas

Law Faculty Scholarly Articles

Voting is the foundational concept for our entire democratic structure. We think of voting as a fundamental-the most fundamental-right in our democracy. When a group of citizens collectively elects its representatives, it affirms the notion that we govern ourselves by free choice. An individual's right to vote ties that person to our social order, even if that person chooses not to exercise that right. Voting represents the beginning; everything else in our democracy follows the right to vote. Participation is more than just a value. It is a foundational virtue of our democracy.

Professor Chad Flanders, in a thought-provoking contribution …

Identification Problems And Voting Obstacles For Transgender Americans, James A. Haynes

Indiana Journal of Law and Social Equality

No abstract provided.

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.

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.

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 …

Minority Vote Dilution In The Age Of Obama, Dale Ho

University of Richmond Law Review

No abstract provided.

A Half-Century Of Virginia Redistricting Battles: Shifting From Rural Malapportionment To Voting Rights To Public Participation, Micah Altman, Michael P. Mcdonald

University of Richmond Law Review

No abstract provided.

Partisanship On An Apolitical Court: The United States Court Of Claims, Justin J. Green

Pepperdine Law Review

No abstract provided.

Blocking The Ballot: Why Florida’S New Voting Restrictions Demonstrate A Need For Continued Enforcement Of The Voting Rights Act Preclearance Requirement, Michael Ellement

Catholic University Law Review

No abstract provided.

A Cure Worse Than The Disease?, Ellen D. Katz

Articles

The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.

What Was Wrong With The Record?, Ellen D. Katz

Articles

Shelby County v. Holder offers three reasons for why the record Congress amassed to support the 2006 reauthorization of the Voting Rights Act (VRA) was legally insufficient to justify the statute's continued regional application: (1) the problems Congress documented in 2006 were not as severe as those that prompted it to craft the regime in 1965; (2) these problems did not lead Congress to alter the statute's pre-existing coverage formula; and (3) these problems did not exclusively involve voter registration and the casting of ballots.

South Carolina's 'Evolutionary Process', Ellen D. Katz

Articles

When Congress first enacted the Voting Rights Act (VRA) in 1965, public officials in South Carolina led the charge to scrap the new statute. Their brief to the Supreme Court of the United States described the VRA as an “unjustified” and “arbitrary” affront to the “Equality of Statehood” principle, and a “usurp[ation]” of the State’s legislative and executive functions. Not surprisingly, the Warren Court was unpersuaded and opted instead to endorse broad congressional power to craft “inventive” remedies to address systematic racial discrimination and to “shift the advantage of time and inertia from the perpetrators of evil to its victims.” …

Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz

Articles

Editor’s Note: Professor Ellen D. Katz writes and teaches about election law, civil rights and remedies, and equal protection. She and the Voting Rights Initiative at Michigan Law filed a brief as amicus curiae in Shelby County v. Holder, on which the U.S. Supreme Court heard oral arguments February 27. Here, she examines why Section 2 of the Voting Rights Act bears consideration in the case, which involves a challenge to Section 5 of the act.

The Death Of The Voting Rights Act Or An Exercise In Geometry?--Shaw V. Reno Provides More Questions Than Answers, Michael J. Moffatt

Pepperdine Law Review

No abstract provided.

Election Law, Christopher R. Nolen, Jeff Palmore

University of Richmond Law Review

Other than a few controversial measures, the 2012 Virginia General Assembly made modest changes to Virginia's laws re-garding the administration and conduct of elections. Most activity in this arena concerned issues that had significant federal election implications: specifically, the adoption of changes to strengthen Virginia's existing voter identification law and the enactment of a congressional redistricting plan. This article surveys developments in Virginia election law for the latter part of 2011and the 2012 General Assembly session. The focus is on those statutory developments that have significance or general applicability to the implementation of Virginia's election laws. Consequently, not every election-related …

Judicial Protection Of Popular Sovereignty: Redressing Voting Technology, Candice Hoke

Law Faculty Articles and Essays

My analysis seeks to underscore the gravity of technologically threatened constitutional voting rights and values, implicating both individual rights to vote and the structural promise of popular sovereignty. Resolution of the dispute over the meaning of Fourteenth Amendment17 principles properly derived from Bush v. Gore18 will be pivotal to assuring meaningful voting rights in the information society. If the Court should hold the Fourteenth Amendment to embrace a deferential standard of review or arduous intent requirements, allowing state political branches to persist in choosing voting technologies based on scientifically unfounded premises that do not achieve classic components of voting rights, …

Majority Voting In The Eu: Beneficial Or Just Equally Harmful, Elizabeth Degori

Claremont-UC Undergraduate Research Conference on the European Union

No abstract provided.