Election Law Commons^™

Recalibrating Campaign Finance Law, Anthony Johnstone

Faculty Journal Articles & Other Writings

This Essay seeks to provide a theoretical framework for conceptualizing this relationship and considering reforms. Part I traces the variation of campaign finance regimes across several political eras and several jurisdictional scales. Strikingly, although similar six-figure campaign finance scandals prompted the reforms of each era, federal lawmakers in each era have drawn progressively lower one-size-fits-all contribution limits and disclosure thresholds. Meanwhile, state campaign finance laws have been more carefully calibrated to reflect the electoral and financial circumstances of particular electoral contests. Part II considers the currently permissible means and ends of campaign finance law and how they constrain the calibration …

Are Ballot Titles Biased: Partisanship In California's Supervision Of Direct Democracy, Christopher S. Elmendorf, Douglas M. Spencer

Publications

This study investigates whether and if so under what conditions the California attorney general (AG), who authors the ballot title and summary (label) for statewide ballot initiatives, writes ballot language that is biased rather than impartial. State law demands an impartial label, but commentators frequently complain that the AG chooses misleading language to bolster (undermine) measures that the AG or the AG's party supports (opposes). In this Article, using a convenience sample of students from several universities, we measure ordinary observers' perceptions of bias in ballot labels for initiatives dating back to 1974. Separately, we calculate an objective measure of …

Reimagining Democratic Inclusion: Asian Americans And The Voting Rights Act, Ming Hsu Chen, Taeku Lee

Publications

The current legal framework for protecting voting rights in the United States has been dramatically destabilized by Supreme Court decisions re-interpreting the protections against minority vote dilution and requires rethinking to survive modern challenges. At the same time, the nation has itself undergone dramatic changes in the racial composition of its polity and in the complexity and salience of race as a factor in political life. In this paper, we focus on a relatively unexamined constituent of this complex reality of modern racial diversity that illustrates some of the core features that all minority groups face in continuing VRA challenges: …

The Forgotten Amendment And Voter Identification: How The New Wave Of Voter Identification Laws Violates The Twenty-Fourth Amendment, Brendan F. Friedman

Hofstra Law Review

The article discusses various state voter identification laws in America as of 2013, focusing on the U.S. Congress' passage of the nation's Help America Vote Act and the claim that the state voter identification laws violate the Twenty-Fourth Amendment to the U.S. Constitution (USC). The U.S. Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment to the USC are mentioned. It states that courts have upheld certain identification laws which imposed merely incidental costs.

First Amendment And "Foreign-Controlled" U.S. Corporations: Why Congress Ought To Affirm Domestic Subsidiaries' Corporate Political-Speech Rights, Scott L. Friedman

Vanderbilt Journal of Transnational Law

Political spending in the modern-day, prolonged election cycle continues to exceed historic proportions. With money equated to speech, whether the First Amendment entitles certain contributors to engage in this political activity remains an open question. Unlike France and Israel, which prohibit corporate contributions, and Canada and the United Kingdom, which turn to public funding for campaign finance, the United States has pushed candidates to rely on political party contributions, personal wealth, and the generosity of individuals, political action committees, and corporations. Concerns about corporate and foreign influence on politics have been especially salient during this lengthy economic downturn, as shown …

The Causal Context Of Disparate Vote Denial, Janai S. Nelson

Faculty Publications

For nearly fifty years, the Voting Rights Act of 1965 ("VRA") and its amendments have remedied racial discrimination in the electoral process with unparalleled muscularity. Modern vote denial practices that have a disparate impact on minority political participation, however, increasingly fall outside the VRA's ambit. As judicial tolerance of disparate impact claims has waned in other areas of law, the contours of Section 2, one of the VRA's most powerful provisions, have also narrowed to fit the shifting landscape. Section 2's "on account of race" standard to determine discrimination in voting has evolved from one of quasi-intent determined by a …

The First Amendment, Equal Protection, And Felon Disenfranchisement: A New Viewpoint, Janai S. Nelson

Faculty Publications

This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disenfranchisement. A deeply racialized problem, felon disenfranchisement is additionally and independently a legislative judgment as to which citizen's ideas are worthy of inclusion in the electorate. Relying on a series of cases involving state interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disenfranchisement is open to attack under the Supreme Court's fundamental rights jurisprudence when it is motivated by a desire to …

The Political Morality Of Voting In Direct Democracy, Michael Serota, Ethan J. Leib

Faculty Scholarship

The voting levers in candidate elections and in direct democracy elections are identical. The political obligations that bind the citizens that pull them are not. This Essay argues that voters in direct democracy elections, unlike their counterparts in candidate elections, serve as representatives of the people and are, accordingly, bound by the ethics of political representation. Upending the traditional dichotomy between representative and direct democracy, this Essay explains why citizens voting in direct democracy are representative legislators who must vote in the public interest and must not vote in their private interests.

Voter Ignorance And Judicial Elections, Dmitry Bam

Kentucky Law Journal

No abstract provided.

Foreword: The State Of The Republican Form Of Government In Montana, Anthony Johnstone

Montana Law Review

This Volume marks an opportunity to reassess the impact of these recent federal interventions on the republican form of government in the states. As the varied contributions demonstrate, it also marks an opportunity to reassert a role for the states in reforming republicanism in the wake of Citizens United and related developments.

The Constitutionality Of Campaign Finance Regulation: Should Differences In A State's Political History And Culture Matter?, William P. Marshall

Montana Law Review

In its Western Tradition Partnership decision, the Montana Supreme Court ruled that the constitutionality of state campaign finance restrictions should be reviewed with particular reference to the political history and traditions of the state enacting the regulation. In so holding, the Montana Court recognized that the states have different political cultures and that these different political cultures can lead to very different regulatory concerns. On this basis, the Montana Court concluded that a type of campaign finance restriction that may be unconstitutional when applied to national elections or to elections in one state might be constitutionally permissible when applied to …

Evidencing A Republican Form Of Government: The Influence Of Campaign Money On State-Level Elections, Edwin Bender

Montana Law Review

Evidence compiled by the Institute over the last decade from all 50 states demonstrates that understanding the role money plays in elections and public policy development, and specifically how campaign-finances are regulated, can improve the representative forms of government in the states. If a state wants more inclusive elections—contested as well as monetarily competitive—then data shows that adjusting contribution limits or funding mechanisms can have a dramatic effect. Offering incentives for donors to participate and for candidates to seek out more small-dollar donors can also have a positive effect on both the number of candidates who run and thenumber of …

The System Of Campaign Finance Disclosure, Anthony Johnstone

Faculty Law Review Articles

This Essay considers Professor Gilbert’s model as the core element in a dynamic system of campaign finance disclosure. First, it recognizes several useful contributions of the model’s framework of informational costs and benefits. In the simplest analysis, disclosure increases the information available to voters by adding source revelation to campaign speech. However, the reality is more complicated. Disclosure can have a chilling effect that decreases the amount of campaign speech by imposing administrative and exposure burdens on speakers. As Professor Gilbert shows, this cannot end the analysis. What matters is not just the magnitude of the chilling effect on speech, …

Recalibrating Campaign Finance Law, Anthony Johnstone

Faculty Law Review Articles

This Essay seeks to provide a theoretical framework for conceptualizing this relationship and considering reforms. Part I traces the variation of campaign finance regimes across several political eras and several jurisdictional scales. Strikingly, although similar six-figure campaign finance scandals prompted the reforms of each era, federal lawmakers in each era have drawn progressively lower one-size-fits-all contribution limits and disclosure thresholds. Meanwhile, state campaign finance laws have been more carefully calibrated to reflect the electoral and financial circumstances of particular electoral contests. Part II considers the currently permissible means and ends of campaign finance law and how they constrain the calibration …

Four Candidates, Two-Horse Race?, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

SMU Assistant Professor of Law and NMP Eugene Tan said that much is at stake for the four political parties contesting the Punggol East by-election. Regardless of how the parties seek to characterise the by-election, it will be fought on both local and national issues. Although it is a four-cornered contest, the race will effectively be a two-horse race between the Workers' Party (WP) and the incumbent People's Action Party (PAP). The by-election is also a way station for PAP and WP as they move towards the next General Election, which promises to be the real watershed election. Assistant Prof …

May I See Your Id? How Voter Identification Laws Disenfranchise Native Americans' Fundamental Right To Vote, Sally Harrison

American Indian 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.

Redistricting Litigation And The Delegation Of Democratic Design, Lisa Marshall Manheim

Articles

This Article seeks to reveal how the practice of litigating as redistricting, which has evolved into a form of litigation highly susceptible to procedural manipulation, has created a type of redistricting that grants profound power to those who choose to litigate. In so doing, this Article rejects any understanding of the redistricting process that understands the influence of litigants to be somehow negated or neutralized by the involvement of courts. It recognizes, moreover, that many of the defining features of redistricting litigation–which are, in certain respects, analogous to those characterizing other problematic forms of litigation–nevertheless reflect some of the most …

More On Veils: Reply To Levitt And Mueller, Chad Flanders

All Faculty Scholarship

I thank Justin Levitt and Derek Mueller for their thoughtful replies to my article, which have helped me (at least) to understand my own position better. I also thank the Florida Law Review for giving me the opportunity to briefly respond to them. I can't (and probably couldn't) give detailed or persuasive answers to their questions; instead, I want to flag some issues that they bring up, and which deserve fuller consideration than I was able to give in my article.

What Is The Value Of Participation?, Chad Flanders

All Faculty Scholarship

In the days after the 2012 presidential election, the pictures became drearily familiar: long lines at polling places from Election Day; people waiting four, five, even six hours in order to vote.¹ The causes? Not enough polling booths. Not enough election workers. Voting machines that did not work, or were too old. Early voting days that were off, then on, then off again. The results? Confusion. Frustration. What might have been an inspiring picture, had it been the first election in some recently democratized country, instead turned into an embarrassment. Even Russia-a famously dysfunctional polity-got into the act. In …

Coordination Reconsidered, Richard Briffault

Faculty Scholarship

At the heart of American campaign finance law is the distinction drawn by the Supreme Court in Buckley v. Valeo between contributions and expenditures. According to the Court, contributions may be limited because they pose the dangers of corruption and the appearance of corruption, but expenditures pose no such dangers and therefore may not be limited. The distinction between the two types of campaign spending turns not on the form – the fact that contributions proceed from a donor to a candidate, while expenditures involve direct efforts to influence the voters – but on whether the campaign practice implicates the …

The Future Of Public Funding, Richard Briffault

Faculty Scholarship

The title of my talk today is the “the future of public funding,” and I am tempted to say “there’s not much future” for public funding. The 2012 presidential election marked the first time since the presidential public funding law was enacted in 1974 that neither major party presidential candidate accepted public funding in the general election and the first time that no significant contender for a major party nomination accepted public funding in the primary phase. Congressional public funding appears dead in the water. In the last Congress, public funding proposals were referred to House and Senate committees, where …

Living With Voters’ Existential Angst, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

SMU Assistant Professor of Law and NMP Eugene Tan analysed the results of the Punggol East by-election and discussed what it signals next for the People’s Action Party (PAP), the Workers’ Party, the opposition in general and Singaporeans. He said that while we should be careful not to extrapolate the results of the Punggol East by-election as being a barometer of national sentiment, the results are nonetheless a useful snapshot of the dynamic political situation. He added that PAP urgently needs to connect more with this existential angst, anxiety and aspirations of voters who feel a growing sense of alienation. …

Mapping A Post-Shelby County Contingency Strategy, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

This Essay was written for the Yale Law Journal Online Symposium on the future of section 5 of the Voting Rights Act after Shelby County v. Holder. Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entities and organized interest groups of various stripes—what they call institutional intermediaries—may be willing and able to mimic the elements that made section 5 an effective regulatory device. As voting rights …

Monitored Disclosure: A Way To Avoid Legislative Supremacy In Redistricting Litigation, Mark Tyson

Washington Law Review

The Speech or Debate Clause of the U.S. Constitution protects members of Congress from testifying about “legislative acts” or having “legislative acts” used against them as evidence. U.S. Supreme Court decisions delineating the scope of what constitutes a “legislative act” have an episodic feel and have failed to create a readily applicable test for new factual scenarios. One such scenario occurs when members of Congress communicate with state legislators regarding congressional redistricting. Courts must know how to handle instances where members of Congress assert legislative privilege in the redistricting context, and specifically when members of Congress assert the privilege in …

Why The National Popular Vote Compact Is Unconstitutional, Norman R. Williams

BYU Law Review

Unable to secure passage of a federal constitutional amendment abolishing the Electoral College, several opponents of the Electoral College have sought to establish the direct, popular election of the President via an interstate compact according to which individual signatory states agree to appoint their presidential electors in accordance with the nationwide popular vote. Ostensibly designed to prevent elections, such as the one in 2000, in which the Electoral College “misfired” and chose the candidate who received fewer popular votes, the National Popular Vote Compact has been adopted by several states, including California. In this Article, I argue that the National …

False Statements V. Free Debate: Is The First Amendment A License To Lie In Elections?, Simon A. Rodell

Florida Law Review

No abstract provided.

Land Use By, For, And Of The People: Problems With The Application Of Initiatives And Referenda To The Zoning Process, Nicolas M. Kublicki

Pepperdine Law Review

No abstract provided.

Resolving Election Error: The Dynamic Assessment Of Materiality, Justin Levitt

William & Mary Law Review

The ghosts of the 2000 presidential election will return in 2012. Photo-finish and error-laden elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet despite widespread agreement on the likelihood of another national meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle, reflecting the underlying values of the electoral process. It argues that the resolution of an …