Law and Politics Commons^™

The Dilemma Of Direct Democracy, Craig M. Burnett, Elizabeth Garrett, Mathew D. Mccubbins

Faculty Scholarship

The dilemma of direct democracy is that voters may not always be able to make welfare- improving decisions. Lupia’s seminal work has led us to believe that voters can substitute voting cues for substantive policy knowledge. Lupia, however, emphasized that cues were valuable under certain conditions and not others. In what follows, we present three main findings regarding voters and what they know about California’s Proposition 7. First, much like Lupia reported, we show voters who are able to recall endorsements for or against a ballot measure vote similarly to people who recall certain basic facts about the initiative. We …

Tea Leaves Of The Economy: General Elections In 2010?, Eugene K. B. Tan

Research Collection Yong Pung How School Of Law

Incumbent governments with good economic track records would typically capitalise on economic downturns to seize a political advantage by calling for early elections. Will the ruling People's Action Party do so next year in view of the strong economic performances in recent months?

E-Voting And Forensics: Prying Open The Black Box, Candice Hoke, Sean Peisert, Matt Bishop, Mark Graff, David Jefferson

Law Faculty Articles and Essays

Over the past six years, the nation has moved rapidly from punch cards and levers to electronic voting systems. These new systems have occasionally presented election officials with puzzling technical irregularities. The national experience has included unexpected and unexplained incidents in each phase of the election process: preparations, balloting, tabulation, and reporting results. Quick technical or managerial assessment can often identify the cause of the problem, leading to a simple and effective solution. But other times, the cause and scope of anomalies cannot be determined. In this paper, we describe the application of a model of forensics to the types …

Barack Obama, Implicit Bias, And The 2008 Election, Jeffrey J. Rachlinski, Gregory S. Parks

Cornell Law Faculty Publications

The election of Barack Obama as the forty-fourth president of the United States suggests that the United States has made great strides with regard to race. The blogs and the pundits may laud Obama’s win as evidence that we now live in a “post-racial America.” But is it accurate to suggest that race no longer significantly influences how Americans evaluate each other? Does Obama’s victory suggest that affirmative action and antidiscrimination protections are no longer necessary? We think not. Ironically, rather than marking the dawn of a post-racial America, Obama’s candidacy reveals how deeply race affects judgment.

Brief Of The Conference Of Chief Justices As Amicus Curiae In Support Of Neither Party, Caperton V. A.T. Massey Coal Co., No. 08-22 (U.S. Jan. 5, 2009), Roy A. Schotland

U.S. Supreme Court Briefs

No abstract provided.

A Federal Constituency For Belgium: Right Idea, Inadequate Method, Donald L. Horowitz

Faculty Scholarship

The survival of the Belgian state is an important matter—and not just to Belgium. If, in the physical and administrative heart of Europe, groups that have lived together peacefully for nearly two centuries decide that they must part, what does that say about the prospects for more fragile, more recently constructed democracies? Partition and secession are generally bad answers to serious ethnic conflict, answers that usually have an array of negative consequences (Horowitz 2003). For this among other reasons, the proposal of the Pavia Group is to be commended. It aims to break the deadlock in Belgian politics and provide …

Quick Off The Mark? In Favor Of Empowering The President-Elect, Nina A. Mendelson

Articles

The United States’s presidential transition period is too long. Between November 7, 2008, and January 20, 2009, the media quickly identified a “‘leadership vacuum.’” In contrast to those of President-elect Obama, President Bush’s approval ratings were at historic lows. One reporter commented in late November, “The markets, at least, seem to be listening to one [P]resident—and he’s not the one in the Oval Office,” and another noted that “everyone . . . ignores the actions of the lame duck.”

La Follette'S Folly: A Critique Of Party Associational Rights In Presidential Nomination Politics, Alan Martinson

University of Michigan Journal of Law Reform

Every four years, observers of the presidential nomination season decry the undue influence of those states that hold their primaries first, particularly Iowa and New Hampshire. Currently, Democratic Party rules protect the position of these states. In 2008, two states disregarded party rules in order to move their primaries to a more influential position in the primary season. As punishment for disobeying the rules, the national party diluted the influence of the delegates from these states at the national convention. Legislative solutions to the problems of the current nomination process appear unlikely. Moreover, Supreme Court jurisprudence places no limits on …

Presidential Debates And Deliberative Democracy, Charles W. Collier

UF Law Faculty Publications

Consider democracy in America through the lens of the presidential debates. It is not a pretty picture. From a high point in the nineteenth century (for example, the lengthy Lincoln-Douglas Senate campaign debates of 1858) a declining trajectory can be traced to the present day, with a marked acceleration in the Age of Television. To our polity's discredit, the presidential debate has long since ceased to be a dialogue that might shed light on the candidates' true powers of deliberation. The key to reversing this long decline, I believe, lies in an unlikely place: in the structural features of the …

Unconscious Bias And The 2008 Presidential Election, Gregory S. Parks, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

The 2008 presidential campaign and election will be historic. It marks the first time a Black person (Barack Obama) and a woman (Hillary Clinton) have a real chance at winning the Presidency. Their viability as candidates symbolizes significant progress in overcoming racial and gender stereotypes in America. But closer analysis of the campaigns reveals that race and gender have placed enormous constraints on how these two Senators can run their candidacy. This is not surprising in light of the history of race and gender in voting and politics in America. But what is perhaps more surprising is how the campaigns …

The Good, The Bad, And The Ugly: Three Proposals To Introduce The Nationwide Popular Vote In U.S. Presidential Elections, Alexander S. Belenky

Michigan Law Review First Impressions

The idea of reforming the Electoral College recurs each time a presidential election nears. Polls show that an overwhelming majority of respondents support abolishing the Electoral College in favor of direct popular election of the President. Yet, it is doubtful whether these polls really imply that such a move would be best for the country. Despite the seeming simplicity of direct popular presidential election, its introduction in the United States—a country in which the clear separation of powers between the states and the federal government has existed for more than two centuries—would have hidden drawbacks that the media and pollsters …

Reforming The Electorial College One State At A Time, Thomas W. Hiltachk

Michigan Law Review First Impressions

The genius of our United States Constitution is the delicate balance our Founding Fathers struck between empowering a national government and preserving the inherent sovereignty of individual states. Any proposed governmental reform that would interfere with that balance should be looked upon skeptically. Recent proposals to do away with the Electoral College in favor of a national popular vote for President deserve such careful examination. But that does not mean that reform is out of reach. We have only to look to the Constitution itself to find that the answer lies in the self-interest of each state. I am an …

Democratic Principle And Electoral College Reform, Ethan J. Leib, Eli J. Mark

Michigan Law Review First Impressions

The Electoral College is a relic from another time and is in tension with the modern constitutional command of “one person, one vote.” But the Electoral College is, nevertheless, ensconced in our Constitution—and, as a result, we would need to amend the document to alter or abolish it from our political fabric. Still, some states are toying with state-based Electoral College reforms. Thus, irrespective of whether voters in those states favor the abolition of the Electoral College through a federal constitutional amendment, they must critically examine the democratic merits of these statebased reform options. Categorically rejecting all state-based reform is …

Ideological Endowment: The Staying Power Of The Electoral College And The Weaknesses Of The National Popular Vote Interstate Compact, Daniel P. Rathbun

Michigan Law Review First Impressions

The National Popular Vote (“NPV”) movement is designed to eliminate the federalist impact of the Electoral College without amending the Constitution. By fashioning an interstate compact to grant participating states’ electoral votes to the winner of the national popular vote, NPV proponents suppose they can induce states to forfeit their electoral “weights” and replace the current, federalist election process with a fully majoritarian one. But by leaving the Electoral College in place, the NPV movement is setting itself up for a double pushback: first, in the form of immediate legal resistance, and second, through states’ long-term involvement in a meaningfully …

Equal Voice By Half Measures, John Mark Hansen

Michigan Law Review First Impressions

In democratic theory, the ballot is the most perfect expression of the democratic commitment to the moral equality of persons. Every citizen, whether old or young, rich or poor, sophisticated or simple, enjoys the same endowment in an election: a single vote. The ballot not only gives citizens their voice in government, it also makes their voices equal. In practice, however, democracies have erected all sorts of impediments to the ideal of equal voice, such as restrictions on suffrage, legislative malapportionments, and discriminatory gerrymanders. Among the most egregious impediments, however, are surely the systems of indirect election purported to filter …

Awarding Presidential Electors By Congressional District: Wrong For California, Wrong For The Nation, Sam Hirsch

Michigan Law Review First Impressions

The unfairness of the proposed California Presidential Election Reform Act is obvious: in a close election, the Act virtually assures that California’s fifty-five electoral votes, which would be expected to go entirely to the Democratic presidential candidate under the traditional statewide-winner-takeall system, will instead be split, with more than a third of them going to the Republican candidate. Implementing this “reform” in the nation’s largest Democratic state, but not in any of the large Republican states (like Texas), is roughly the equivalent of handing over to the Republicans the state of Illinois. What is less obvious is that the Act …

An Unsafe Harbor: Recounts, Contests, And The Electoral College, Daniel P. Tokaji

Michigan Law Review First Impressions

Although recent proposals for modifying the Electoral College process have focused mainly on how electoral votes are assigned, another problem with the current system has received less attention: the timetable for resolving post-election disputes over electors. Under 3 U.S.C. § 5, the so-called “safe harbor” provision of federal law, a state can be assured of having its chosen slate of electors recognized only if post-election disputes are resolved within thirty-five days of Election Day. As a practical matter, this provision doesn’t provide states enough time to complete recount and contest proceedings in the event of a close, contested election. This …

Anti-Corruption Principle, The, Zephyr Teachout

Faculty Scholarship

There is a structural anti-corruption principle, akin to federalism or the separation-of-powers principle, embedded in the Constitution. The Constitution was designed, in large part, to protect against corruption. This structural principle - like the other structural principles - should inform how judges "do" modern political process cases. This paper documents the corruption concerns at the Constitutional convention in detail. It then examines how the modern Supreme Courts' conception of corruption is fractured and ahistorical, and has led to an incoherent jurisprudence. Instead of starting with Buckley v. Valeo, as so many modern cases do, the Court should return to the …

"Now For A Clean Sweep!": Smiley V. Holm, Partisan Gerrymandering, And At-Large Congressional Elections, Benedict J. Schweigert

Michigan Law Review

The 1930 Census reduced Minnesota's apportionment in the U.S. House of Representatives from ten to nine, requiring the state to draw new congressional districts. The Republican-led state legislature passed a gerrymandered redistricting bill in an attempt to insulate its nine incumbents in the state's delegation from the party's expected loss of the statewide popular vote to the insurgent Farmer-Labor Party. When the Farmer-Labor Governor, Floyd B. Olson, vetoed the redistricting bill, the legislature claimed the bill could take effect without the governor's signature. In Smiley v. Holm, the U.S. Supreme Court decided that the veto was effective and that …

Debate, Implicit Race Bias And The 2008 Presidential Election: Much Ado About Nothing?, Gregory S. Parks, Jeffrey J. Rachlinski, Richard A. Epstein

Cornell Law Faculty Publications

The election of Barack Obama marks a significant milestone for race relations in our nation—on this much our debaters agree. The meaning of this milestone for the future of race-based policies, such as affirmative action and antidiscrimination laws, is where they disagree. Dr. Gregory Parks and Professor Jeffrey Rachlinski argue that any announcement of the arrival of a “post-racial America” is premature, as the presidential campaign actually revealed an implicit racial bias present in “most white adult brains.” The stereotypical criticisms of Obama, explicit racial references by supporters of opposing candidates, and “deeply racially stratified voting” were, in fact, “reflection[s] …

Documentation Assessment Of The Diebold Voting System, S. Candice Hoke, Dave Kettyle

Law Faculty Reports and Comments

The California Secretary of State commissioned a comprehensive, independent evaluation of the electronic voting systems certified for use within the State. This team, working as part of the “Top to Bottom” Review (“TTBR”), evaluated the documentation supplied by Diebold Election System, Inc.

Collaborative Public Audit Of The November 2006 General Election, S. Candice Hoke, Collaborative Audit Committee

Law Faculty Reports and Comments

We hope that this Audit Report will assist the Ohio Secretary of State, all Ohio local Boards of Election, election reform organizations, and other election officials nationwide in seeing how an independent audit process can be created and function at the local level. Additionally, we hope the public will recognize that this Report contains the kind of information that all election administrative agencies need to better achieve the public charge for producing accurate election results and to facilitate sound improvements in election administrative practices.

Deliberation Or Tabulation? The Self-Undermining Constitutional Architecture Of Election Campaigns, James A. Gardner

Buffalo Law Review

Perhaps the one completely uncontested truth in the shared public ideology of American politics is that an election campaign ought to be a serious occasion in the life of a democratic polity, a time when citizens reflect maturely on the great public issues of the day. On this view, the ultimate purpose of election campaigns is to offer voters and candidates a meaningful opportunity for deliberation and persuasion. Of course, the typical modern American election campaign does not seem seriously reflective and deliberative so much as shallow and unengaging. Reasoned persuasion seems to play a minor role, if that. The …

A Vote For Clarity: Updating The Supreme Court's Severe Burden Test For State Election Regulations That Adversely Impact An Individual's Right To Vote, Joshua A. Douglas

Law Faculty Scholarly Articles

The presidential election on November 2, 2004, was perhaps one of the most watched and contentious elections in recent memory. Both major parties knew that the race would come down to several battleground states, including Ohio. The real battle in Ohio, however, began a day or two before Election Day, when several federal judges clashed over whether to allow partisan challengers at the polls.

On October 31, 2004 and November 1, 2004, two separate district court judges ruled that an Ohio election statute allowing political parties and groups of five or more candidates to place challengers at election precincts to …

Political Advocacy And Taxable Entities: Are They The Next "Loophole"?, Donald B. Tobin

Faculty Scholarship

No abstract provided.

The Legislative Privilege To Judge The Qualifications, Elections, And Returns Of Members, Paul E. Salamanca, James E. Keller

Law Faculty Scholarly Articles

In Stephenson v. Woodward, the Supreme Court of Kentucky functionally affirmed a quo warranto against a sitting member of the senate. Although a respectable argument can be made that the person in question was in fact not qualified to serve, the senate itself had deliberated on the issue and had reached its own respectable conclusion that she was qualified. More importantly, the Constitution of Kentucky, like the Constitution of the United States and that of virtually every other state, authorizes each house of the legislature to be the "judge of" its members' qualifications, elections and returns. According to the …

Election Law, Christopher R. Nolen

University of Richmond Law Review

Advances in Virginia's election law happen incrementally. This year was typical in that regard. While over one hundred bills and resolutions pertaining to elections were introduced in the 2006 Regular Session of the General Assembly, the legislature was judicious in its approval of election related legislation. This article surveys recent developments in Virginia's election laws by focusing on those legislative enactments and judicial decisions that are significant, interesting, or show some developing trend in the area of election law.

Self-Defeating Minimalism, Adam B. Cox

Michigan Law Review First Impressions

Everyone wants a piece of Tom DeLay. The former majority leader is under investigation and indictment, and even the Supreme Court threatened last Term to undo one of his signal achievements. In 2003, DeLay orchestrated a highly unusual mid-decade revision of Texas’s congressional map. The revised map was a boon to Republicans, shifting the Texas congressional delegation from 15 Republicans and 17 Democrats to 21 Republicans and 11 Democrats. The map was attacked as an unconstitutional partisan gerrymander and a violation of the Voting Rights Act. When the Supreme Court agreed to hear those challenges in LULAC v. Perry, many …

Cultural Compactness, Daniel R. Oritz

Michigan Law Review First Impressions

The Supreme Court’s opinions in LULAC v. Perry, the Texas redistricting case, confounded expectation. While many believed that the Court would develop the law governing partisan gerrymandering in one direction or another, it did not. As exactly before, such claims are justiciable but there is no law to govern them. In other words, the courthouse doors are open, but until some plaintiff advances a novel theory persuasive to five justices, no claims will succeed. On the other hand, few expected the Court to make any major changes to doctrine under the Voting Rights Act and Shaw v. Reno. But LULAC …

This Way To The Egress And Other Reflections On Partisan Gerrymandering Claims In Light Of Lulac V. Perry, Bernard Grofman

Michigan Law Review First Impressions

After winning control of both houses of the legislature and the governorship, Texas Republicans eventually succeeded in redistricting Texas’s congressional seats in 2003, replacing a 2001 court-drawn plan. LULAC v. Perry reviewed a number of challenges to that second redistricting. The decision deals with a multiplicity of issues, including, most importantly, the standard for violations of Section 2 of the Voting Rights Act and the nature of tests for unconstitutional partisan gerrymandering. While there are some clear holdings in the case, several of them reflect different combinations of Justices in the majority and, since there are six different opinions, it …