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Are Ballot Titles Biased? Partisanship In California's Supervision Of Direct Democracy, Douglas M. Spencer, Christopher S. Elmendorf 2013 University of Connecticut School of Law

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

Faculty Articles and Papers

No abstract provided.


Procedural Fairness In Election Contests, Joshua A. Douglas 2013 University of Kentucky College of Law

Procedural Fairness In Election Contests, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article uncovers the different mechanisms states use to resolve election contests. One universal rule regarding post-election disputes is that "[t]here is no common law basis for election challenges." As the Iowa Supreme Court explained, "[t]he right to contest an election is only conferred by statute, and contestants must strictly comply with the provisions of the statute in order to confer jurisdiction. Thus, contestants are limited to the scheme provided by the legislature." An inquiry into election contests therefore entails a survey of state election statutes and constitutions. Although it is possible that parties may file in federal court and …


To Hava, And Beyond!, Joshua A. Douglas 2013 University of Kentucky College of Law

To Hava, And Beyond!, Joshua A. Douglas

Law Faculty Scholarly Articles

Book review of Martha Kropf and David C. Kimball, Helping America Vote: The Limits of Election Reform. New York, NY: Routledge, 2012, 154 pp., $41.95 (paperback).


Keynote Address: On What Being A (Small R) Republican Means, Lawrence Lessig 2013 Harvard Law School

Keynote Address: On What Being A (Small R) Republican Means, Lawrence Lessig

Montana Law Review

This Article is an edited, annotated transcript of the Keynote Address delivered by Professor Lawrence Lessig at the Montana Law Review’s Honorable James R. Browning Symposium on Election Law, The State of the Republican Form of Government in the States: Debating Democracy’s Future, held at The University of Montana School of Law on September 27, 2012.


Ballot Design As Fail-Safe: An Ounce Of Rotation Is Worth A Pound Of Litigation, Mary Beth Beazley 2013 University of Nevada, Las Vegas -- William S. Boyd School of Law

Ballot Design As Fail-Safe: An Ounce Of Rotation Is Worth A Pound Of Litigation, Mary Beth Beazley

Scholarly Works

For generations, some candidates have argued that first-listed candidates gain ‘‘extra’’ votes due to primacy effect, recommending ballot rotation to solve the problem. These votes, however, are generally intentional votes, accurately cast, and rotation is controversial. This article argues that rotation is appropriate because it mitigates the electoral impact of not only primacy effect, but also of two categories of miscast votes. First, rotation mitigates the impact of proximity-mistake votes, which can occur even on well-designed ballots when voters mis-vote for a candidate in proximity to their chosen candidate. Second, rotation mitigates the impact of mis-votes caused by flawed ballot …


Blacks And Voting Rights In Nevada, Rachel J. Anderson 2013 University of Nevada, Las Vegas -- William S. Boyd School of Law

Blacks And Voting Rights In Nevada, Rachel J. Anderson

Scholarly Works

This article is a brief foray into black suffrage and equal rights in Nevada legal history. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue. Sources are on page 21 of the issue.


South Carolina's 'Evolutionary Process', Ellen D. Katz 2013 University of Michigan Law School

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.” …


First Amendment And "Foreign-Controlled" U.S. Corporations: Why Congress Ought To Affirm Domestic Subsidiaries' Corporate Political-Speech Rights, Scott L. Friedman 2013 Vanderbilt University Law School

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 2013 St. John's University School of Law

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 2013 St. John's University School of Law

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 …


Recalibrating Campaign Finance Law, Anthony Johnstone 2013 Alexander Blewett III School of Law at the University of Montana

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 2013 University of Colorado Law School

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 2013 University of Colorado Law School

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 2013 Maurice A. Deane School of Law at Hofstra University

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.


Voter Ignorance And Judicial Elections, Dmitry Bam 2013 University of Maine School of Law

Voter Ignorance And Judicial Elections, Dmitry Bam

Kentucky Law Journal

No abstract provided.


Coordination Reconsidered, Richard Briffault 2013 Columbia Law School

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 …


A Cure Worse Than The Disease?, Ellen D. Katz 2013 University of Michigan Law School

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.


The Political Morality Of Voting In Direct Democracy, Michael Serota, Ethan J. Leib 2013 Independent

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.


Foreword: The State Of The Republican Form Of Government In Montana, Anthony Johnstone 2013 University of Montana School of Law

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 2013 New York University School of Law

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 …


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