Election Law Commons^™

Swing State Rulings On Restrictive Voting Laws Highlight The Need For Comprehensive Electoral Reform, Michael Lavigne

University of Colorado Law Review

The right to elect our leaders has been one of the defining features of America's political system from its very beginning. Throughout the two and a half centuries that the United States has existed, that right to vote has gradually been expanded to previously disenfranchised groups, and strengthened through legislation like the Voting Rights Act, Help America Vote Act, and National Voter Registration Act. However, recent elections-such as Florida in 2000 and Ohio in 2004-have shown that the right to vote can still be undermined by incompetent or conflicted officials. Additionally, measures whose purpose is ostensibly to prevent voter fraud, …

The Forgotten Law Of Lobbying, Zephyr Teachout

Faculty Scholarship

For most of American history, until the 1950s, courts treated paid lobbying as a civic wrong, not a protected First Amendment right. Lobbying was presumptively against public policy, and lobbying contracts were not enforced. Paid lobbying threatened the integrity of individuals, legislators, lobbyists, and the integrity of society as a whole. Some states had laws criminalizing lobbying; Georgia had an anti-lobbying provision in its Constitution. Inasmuch as there was a personal right to either petition the government, or share views with officers of the government, this right was not something one could sell -- it was not, in the term …

Neoliberal Political Law, Zephyr Teachout

Faculty Scholarship

No abstract provided.

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 …

Citizens United, States Divided: An Empirical Analysis Of Independent Political Spending, Douglas M. Spencer, Abby K. Wood

Publications

What effect has Citizens United v. FEC had on independent spending in American politics? Previous attempts to answer this question have focused solely on federal elections, where there is no baseline for comparing changes in spending behavior. We overcome this limitation by examining the effects of Citizens United as a natural experiment on the states. Before Citizens United, about half of the states banned corporate independent expenditures and thus were "treated" by the Supreme Court's decision, which invalidated these state laws. We rely on recently released state-level data to compare spending in "treated" states to spending in the "control" states, …

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 …

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.

Financing Elections And 'Appearance Of Corruption': Citizen Attitudes And Behavior In 2012, Molly J. Walker Wilson

All Faculty Scholarship

As political spending reaches new highs in the 2012 election cycle, and as the controversy surrounding wealthy donors and interest groups grows, polls demonstrate a surge of cynicism among Americans who profess a belief that the American political system is corrupt. The Supreme Court’s 2010 decision in Citizens United made possible the most recent expansion of political spending. In this case, the question was whether allowing corporations and unions to spend unlimited amounts of money on political advertising would result in corruption or the appearance of corruption. The majority on the Court determined that it would not. Many observers have …

Voting Rights Law And Policy In Transition, Guy-Uriel E. Charles, Luis E. Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Politics And The Public’S Right To Know, Lloyd Hitoshi Mayer

Journal Articles

In the United States it is taken for granted that members of the public should have access to information about their government. This access takes many forms, including the ability to obtain copies of government documents, the ability to attend meetings of government officials, and the related obligations of government officials to document their activities and to reveal certain otherwise private information about themselves. This access also is often limited by countervailing concerns, such as the privacy of individual citizens and national security. Nevertheless, the presumption both at the federal level and in every state is to provide such access. …

Three Questions For The Right To Vote Amendment, Richard Briffault

Faculty Scholarship

Should the United States Constitution be amended to guarantee the right to vote? To the average citizen – and probably many lawyers – this almost certainly would be taken as an absurd question. Most people probably assume that the right to vote is, at least in principle, already guaranteed by the Constitution even if our practices fall short of our ideals. But, in fact, although the Constitution frequently refers to the “right … to vote” – and the Supreme Court’s jurisprudence has long treated voting as a fundamental right – the right to vote per se is nowhere guaranteed. A …

State's Rights, Last Rites, And Voting Rights, Luis Fuentes-Rohwer, Guy-Uriel Charles

Articles by Maurer Faculty

There are two ways to read the Supreme Court's decision in Shelby County Alabama v. Holder: as a minimalist decision or as a decision that undermines the basic infrastructure of voting rights policy, law, and jurisprudence. In this Article, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race …

The Geopolitics Of Election Approval: The Us Response To Honduras And Venezuela, Lauren Carasik, Susan Scott, Azadeh Shahshahani

Media Presence

No abstract provided.

The Incompatible Treatment Of Majorities In Election Law And Deliberative Democracy, James A. Gardner

Journal Articles

Deliberative democracy offers a distinctive and appealing conception of political life, but is it one that might be called into service to guide actual reform of existing election law? This possibility seems remote because election law and deliberative democracy are built around different priorities and theoretical premises. A foundational area of disagreement lies in the treatment of majorities. Election law is structured, at both the legislative and constitutional levels, so as to privilege majorities and systematically to magnify their power, whereas deliberative democracy aims at privileging minorities (or at least de-privileging majorities). The main purpose of the election law now …

Honduras’ Presidential Election Demands An Investigation, Lauren Carasik, Azadeh Shahshahani

Media Presence

No abstract provided.

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 …

Electoral Competition In Connecticut's State House Races: The Trial Run Of The Citizens' Election Program, Lesley A. Denardis

Political Science & Global Affairs Faculty Publications

The Citizens Election Fund, Connecticut's version of a clean elections law, was established in 2005 in the wake of the corruption scandal during the administration of Governor John Rowland. Modeled after the public financing systems of Maine and Arizona, Connecticut's law has been touted as the most comprehensive in the nation. This paper will address whether the introduction of the Citizens' Election Program has increased the level of electoral competition by specifically focusing on state house seats in Connecticut during the 2008 and 2010 election cycles. Contestation for seats in the Connecticut General Assembly is a particularly salient issue due …

Unfinished Business: Protecting Voting Rights In The Twenty-First Century, Gilda R. Daniels

All Faculty Scholarship

While minorities have experienced great progress because of the Voting Rights Act, particularly section 5 of the Act, the work to achieve an electoral process free of discrimination remains unfinished. In Shelby County v. Holder, the Supreme Court struck down section 4 of the Act, which provided the coverage formula through which section 5 was implemented. Without section 4, there is no section 5. The historical and contemporaneous discrimination that minorities in states formerly covered under section 5 continue to face is substantial and outpaces that in noncovered states. Scholars cannot divorce the debate surrounding section 5’s constitutionality, which continues …

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 …

Friends With Benefits: Measuring Corruption In Politics After Citizens United, Patrick Eoghan Murray

North Carolina Central Law Review

No abstract provided.

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

William & Mary Bill of Rights Journal

No abstract provided.

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 …

Democracy And The Right To Vote: Rethinking Democratic Rights Under The Charter, Yasmin Dawood

Osgoode Hall Law Journal

This article addresses the Supreme Court of Canada’s theory of democracy and the right to vote. After setting forth the Court’s general approach to democracy, I develop a new conceptual framework for the Court’s approach to democratic rights. First, I argue that the Court has adopted a “bundle of democratic rights” approach to the right to vote. By this I mean that the Court has interpreted the right to vote as consisting of multiple democratic rights, each of which is concerned with a particular facet of democratic governance. Second, I claim that the democratic rights recognized by the Court are …

The "Nixon Sabotage": The Political Origins Of The Equal Protection Challenge To The Voting Rights Act, Danieli Evans

Articles

Critics of the Voting Rights Act argue that the anti-discrimination law requires states to engage in unconstitutional discrimination, as state decisionmakers must be conscious of race in order to ensure that voting policies do not weaken minority representation. This argument relies on the idea that subjective racial motivation is the essence of unconstitutional discrimination (even if benevolent, or to promote racial inclusion). The conventional understanding among constitutional scholars is that this “search for the bigoted decisionmaker” developed in employment and housing discrimination decisions between 1976 and 1979. Previous accounts have not recognized the role that the 1971 school desegregation decision …

Lining Up: Ensuring Equal Access To Vote, Gilda R. Daniels

All Faculty Scholarship

This booklet ( a joint project of the Advancement Project and the Lawyer's Committee for Civil Rights Under Law) provides an extensive overview of restrictive voting laws, especially concerning minority voters. Daniels begins with a summary of voter obstructions and intimidation in the 2012 election, and then places that within the context of the history of voting and race in America.

Most recently, the Section 5 protections of the Voting Rights Act of 1965 were effectively removed by the Shelby County v. Holder Supreme Court decision. Daniels then explains what this means practically and legally for minority voters and how …

The Effects Of The Bi-Partisan Campaign Reform Act On The Process Of The Campaign Finance In The Presidential Nomination Process, Karen Sebold

Graduate Theses and Dissertations

The Bipartisan Campaign Reform Act increased the individual donor limit to $2,000 per candidate per election and indexed the limit for inflation every two years. The primary research question guiding this study is how has the increase in the donor limit affected donor behavior. Answering this question should allow a determination to be made about how donors have responded to the increased donor limit. Understanding how donors responded to the doubled limit is important because it provides evidence on the intersection of wealth inequality and political influence. To answer the research question this study considers how the increased donor limit …

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 …

Stop This Insanity, Inc., Et Al., Appellants, V. Federal Election Commission, Appellee: Reply Brief Of Appellants, Dan Backer, Patricia E. Roberts, Tillman J. Breckenridge, Tara A. Brennan

Appellate and Supreme Court Clinic

No abstract provided.