South Carolina's 'Evolutionary Process',
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.” …
Shelby County V. Holder: Why Section 2 Matters,
2013
University of Michigan Law School
Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz
Articles
Editor’s Note: Professor Ellen D. Katz writes and teaches about election law, civil rights and remedies, and equal protection. She and the Voting Rights Initiative at Michigan Law filed a brief as amicus curiae in Shelby County v. Holder, on which the U.S. Supreme Court heard oral arguments February 27. Here, she examines why Section 2 of the Voting Rights Act bears consideration in the case, which involves a challenge to Section 5 of the act.
A Cure Worse Than The Disease?,
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.
Are Ballot Titles Biased? Partisanship In California's Supervision Of Direct Democracy,
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,
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!,
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,
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.
First Amendment And "Foreign-Controlled" U.S. Corporations: Why Congress Ought To Affirm Domestic Subsidiaries' Corporate Political-Speech Rights,
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 …
Recalibrating Campaign Finance Law,
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 …
The Forgotten Amendment And Voter Identification: How The New Wave Of Voter Identification Laws Violates The Twenty-Fourth Amendment,
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.
The Causal Context Of Disparate Vote Denial,
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,
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 …
Foreword: The State Of The Republican Form Of Government In Montana,
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?,
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 …
Evidencing A Republican Form Of Government: The Influence Of Campaign Money On State-Level Elections,
2013
National Institute on Money in State Politics
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 …
Voter Ignorance And Judicial Elections,
2013
University of Maine School of Law
Voter Ignorance And Judicial Elections, Dmitry Bam
Kentucky Law Journal
No abstract provided.
Voter Id: Who Has Them? Who Shows Them?,
2013
Massachusetts Institute of Technology
Voter Id: Who Has Them? Who Shows Them?, Charles Stewart Iii
Oklahoma Law Review
No abstract provided.
What Is The Value Of Participation?,
2013
Saint Louis University School of Law
What Is The Value Of Participation?, Chad W. Flanders
Oklahoma Law Review
No abstract provided.
The System Of Campaign Finance Disclosure,
2013
Alexander Blewett III School of Law at the University of Montana
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,
2013
Alexander Blewett III School of Law at the University of Montana
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 …
