Law and Politics Commons^™

Anthony Kennedy's Blind Quest, Scot Powe, Steve Bickerstaff

Michigan Law Review First Impressions

League of United Latin American Citizens [LULAC] v. Perry embraced, in the context of partisan gerrymandering, Felix Frankfurter’s conclusion that the Supreme Court should not enter the political thicket of legislative apportionment. Two years earlier in Vieth v. Jubelirer, the Court split 4–1–4 on the justiciability of partisan gerrymandering. O’Conner and the three conservatives held it was nonjusticiable. Each of the four moderate liberals offered a test showing it was justiciable. Kennedy dissented from the conservatives while simultaneously rejecting each of the four tests offered. He announced he was waiting for a better test. When far superior tests were offered …

Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault

Michigan Law Review First Impressions

In League of United Latin American Citizens (“LULAC”) v. Perry, the Supreme Court, for the second time in two years, agonized over partisan gerrymandering. LULAC’s rejection of a Democratic challenge to the Texas legislature’s mid-decade pro-Republican congressional redistricting resembles the Court’s 2004 dismissal of a Democratic gerrymandering suit against Pennsylvania’s pro-Republican congressional redistricting plan in Vieth v. Jubelirer. As in Vieth, the Justices wrangled over justiciability, the substantive standard for assessing the constitutionality of partisan gerrymandering claims, and the interplay of justiciability and constitutionality. As in Vieth, the Court was highly fragmented: Vieth produced five separate opinions, while LULAC took …

Strict In Theory, Loopy In Fact, Nathaniel Persily

Michigan Law Review First Impressions

Most Supreme Court-watchers find the decision in LULAC v. Perry notable for the ground it breaks concerning Section 2 of the Voting Rights Act and the ground it refuses to break on the topic of partisan gerrymandering. I tend to think the Court’s patchwork application of Section 2 to strike down a district on vote dilution grounds is not all that dramatic, nor is its resolution of the partisan gerrymandering claims all that surprising. The truly unprecedented development in the case for me was Justice Scalia’s vote to uphold what he considered a racial classification under the Equal Protection Clause, …

Final Report Of The Cuyahoga County Election Review Panel, S. Candice Hoke, Ronald B. Adrine, Tom J. Hayes

Law Faculty Reports and Comments

The Panel was charged with identifying the deficiencies in the May 2, 2006 Cuyahoga County election, ascertain the causes and contributing factors of those deficiencies and provide recommendations to remedy the deficiencies.

Can Direct Democracy Be Made Deliberative?, Ethan J. Leib

Faculty Scholarship

Every election cycle a great number of citizens take to the polls to vote on public policy matters directly. Direct democracy has problems. And an account of deliberative democracy—far from being a source to critique direct democracy—might provide a solution. I have three goals here. First, I hope to identify some problems with the mechanisms of direct democracy that most states and many cities throughout the country employ: the initiative and the referendum. Next, I will offer a potential solution to these institutional problems using aspects of the theory of deliberative democracy, a theory often marshaled to undermine direct democracy. …

A Wolf In Sheep's Clothing: Gaffney And The Improper Role Of Politics In The Districting Process, Robert A. Koch

University of Michigan Journal of Law Reform

The Supreme Court unanimously agrees that excessive partisan gerrymandering is unconstitutional. A plurality of the Court, however, would hold partisan gerrymandering claims to be nonjusticiable due to the lack of a judicially manageable standard. This Note synthesizes the opinions of a majority of the Court in Vieth v. Jubelirer on the precise harms of partisan gerrymandering and argues that excessive partisan gerrymandering unconstitutionally burdens the representational rights of individual voters. This Note proposes a judicially manageable standard to address that representational harm based on the Court's standard in Shaw v. Reno.

Counter-Majoritarian Power And Judges' Political Speech, Michael R. Dimino

ExpressO

Canons of ethics restrict judicial campaigning and prohibit sitting judges from engaging in political activity. Only recently, in Republican Party v. White, 536 U.S. 765 (2002), has the Supreme Court addressed the constitutionality of these restrictions, concluding that judicial candidates must be allowed some opportunity to discuss legal and political issues in their campaigns. But White left many questions unanswered about the permissible scope of restrictions on judges’ political activity.

This Article suggests that those questions will be answered not by applying principles of free speech, but by analyzing the opportunities the restrictions provide for independent judicial policy-making. Restrictions on …

Felon Disenfrachisement Laws: Partisan Politics In The Legislatures, Jason Belmont Conn

Michigan Journal of Race and Law

This examination of the institutional changes to state legislatures, synthesized with an analysis of the handling of felon disenfranchisement laws by state legislatures, presents a troubling realization about the law today: in the twenty-first century, partisan politics moderates decisions about even the most basic and fundamental principles of democracy. This Note suggests that because state legislators follow their party leadership and position, a state's traditional treatment of racial minorities, geographic location, and even ideology are not the strongest indicators of a state's disenfranchisement laws. Rather, partisan politics drives changes to the state laws governing felon voter eligibility.

After Georgia V. Ashcroft: The Primacy Of Proportionality, Felix B. Chang

Michigan Journal of Race and Law

This Note argues that the majority in Ashcroft have left courts with an unadministerable standard-not so much for reasons that Justice Souter articulated in his dissent, but rather because the Court provided no guidance on navigating around the myriad of factors in the convoluted totality analyses. In the face of this uncertainty, lower courts will rely increasingly on the proportionality standard of Johnson v. De Grandy, which marked the midpoint in the judicial shift from Justice Brennan's worldview to Justice O'Connor's world-view. Part I examines two cases after Ashcroft which represent different degrees of racial vote dilution: Shirt v. …

Competing Values Or False Choices: Coming To Consensus On The Election Reform Debate In Washington State And The Country, Tova Andrea Wang

Seattle University Law Review

This Article examines the problems revealed in Washington State's election system as a result of its staggeringly close gubernatorial election, and compares such problems to those encountered by other states in the 2004 election. It examines the challenge of fixing these problems through the prism of the ongoing debate over what values and goals are most important when making election administration decisions. The various values and goals of expanding voter access, increasing voter participation and election efficiency, preventing voter fraud, ensuring the count of every vote, and creating finality in the voting system are included in this examination. Throughout this …

Campaign Finance Reform And The Social Inequality Paradox, Yoav Dotan

University of Michigan Journal of Law Reform

The recent landmark decision by the Supreme Court in McConnell v. FEC opens the way for new and more decisive regulation of the vast amounts of private and corporate money poured into the political system. However, the theoretical grounds for campaign finance regulation - as reflected in the Court's opinion - remain highly perplexing. The purpose of the current article is to tie together the evolving constitutional principle of equality in election with modern process theory and to apply them to the field of campaign finance. The inherent tension between the stringent requirement for political equality on the one hand …

To Elect Or Not To Elect: A Case Study Ofjudicial Selection In New York City 1977-2002, Steven Zeidman

University of Michigan Journal of Law Reform

This Article examines the process of judicial selection in New York State in light of the recent court decisions in White and Spargo, which have paved the way for increased campaign speech in judicial elections. Relying on empirical data to compare judicial elections and appointments in New York City between 1977 and 2002, the Article finds that elections produce a judiciary that is more beholden to interest groups than one generated through appointments. The consequence of this greater special interest involvement is an erosion of public trust and confidence in the judiciary. Moreover while elections arguably have increased diversity in …

Law, Politics, And Judicial Review: A Comment On Hasen, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.

Resurrecting The White Primary, Ellen D. Katz

Articles

An unprecedented number of noncompetitive or "safe" electoral districts operate in the United States today. Noncompetitive districts elect officials with more extreme political views and foster more polarized legislatures than do competitive districts. More fundamentally, they inhibit meaningful political participation. That is because participating in an election that is decided before it begins is an empty exercise. Voting in a competitive election is not, even though a single vote will virtually never decide the outcome. What a competitive election offers to each voter is the opportunity to be the coveted swing voter, the one whose support candidates most seek, the …

Of Platonic Guardians, Trust, And Equality: A Comment On Hasen's Minimalist Approach To The Law Of Elections, Luis Fuentes-Rohwer

Articles by Maurer Faculty

No abstract provided.

Cheap Talk Citizenship: The Democratic Implications Of Voting With Dollars, Bruce E. Cain

University of Richmond Law Review

No abstract provided.

Hybridizing Citizenship, Kathryn Abrams

University of Richmond Law Review

No abstract provided.

Vouchers And Buckley: The Need For "Regime Change", Richard L. Hasan

University of Richmond Law Review

No abstract provided.

Political Realities And Unintended Consequences: Why Campaign Finance Reform Is Too Important To Be Left To The Lawyers, Kenneth R. Mayer

University of Richmond Law Review

No abstract provided.

Response To Voting With Dollars: A New Paradigm For Campaign Finance, Fred Wertheimer, Alexandra T.V. Edsall

University of Richmond Law Review

No abstract provided.

Dollars And Sense: A "New Paradigm" For Campaign Finance Reform?, Daniel A. Farber

University of Richmond Law Review

No abstract provided.

Voting With Cues, Elizabeth Garrett

University of Richmond Law Review

No abstract provided.

Why A New Paradigm?, Bruce Ackerman, Ian Ayres

University of Richmond Law Review

No abstract provided.

Barriers To Participation, Trevor Potter, Marianne H. Viray

University of Michigan Journal of Law Reform

Despite the nation's founding commitment to participatory democracy, many barriers to candidate and public participation in the electoral process are damaging the public's confidence that our elections are fair and open to full participation by candidates and voters.

The nominating processes created by the two major parties mainly serve the goals of party "insiders" and the more politically extreme factions, at the expense of competition and public confidence in the two-party system. At the same time, barriers to minor party and independent candidates-closed primaries, excessive early-voter registration requirements and complicated state primary and general ballot access requirements-operate to foreclose the …

Strategic Voting And African-Americans: True Vote, True Representation, True Power For The Black Community, Maxine Burkett

Michigan Journal of Race and Law

As long as American politics remain securely bound to the two-party system, Blacks will remain a voting block; a block that may shift, but a block nonetheless. And although this appears to be to our strategic disadvantage, allowing conviction to direct us, as well as a deep respect for the intense struggle for the franchise, will forever be a noble posture.

Mixing Metaphors: Voting, Dollars, And Campaign Finance Reform (Review Essay), Guy-Uriel Charles

Faculty Scholarship

Reviewing, Bruce Ackerman & Ian Ayers, Voting with Dollars: A New Paradigm for Campaign Finance (2002)

Brief Of Conference Of Chief Justices As Amicus Curiae Supporting Respondents, Republican Party Of Minnesota V. Kelly, No. 01-521 (U.S. Feb. 19, 2002), ., Roy A. Schotland

U.S. Supreme Court Briefs

No abstract provided.

Brief Amicus Curiae Of The Idaho Conservation League And The Louisiana Environmental Action Network In Support Of Neither Side, Republican Party Of Minnesota V. Kelly, No. 01-521 (U.S. Jan. 17, 2002), John D. Echeverria

U.S. Supreme Court Briefs

No abstract provided.

Redefining American Democracy: Do Alternative Voting Systems Capture The True Meaning Of "Representation"?, James Thomas Tucker

Michigan Journal of Race and Law

This Article explores whether alternative voting systems are compatible with the meaning of representation in the United States. Part II begins by examining the role of geographical representation and the effect it has on the ability of individuals and groups of voters to give or withhold their consent. Part III follows this inquiry by assessing the relationship between representatives and constituents under majoritarian and proportional systems to determine the consequences of moving away from geographical representation towards models designed to enhance opportunities for all voters to choose winning candidates. A description of what a "majority" is and when and how …

Popular Sovereignty And The Electoral College, John O. Mcginnis

Articles

No abstract provided.