Election Law Commons^™

A Major Wrong On A Private Right Of Action Under The Voting Rights Act, Macin Graber, Joshua A. Douglas

Washington and Lee Law Review

In Brnovich v. Democratic National Committee, Justice Neil Gorsuch posited in a short concurrence that Section 2 of the Voting Rights Act (“VRA”) does not confer a private right of action. That idea seemingly came out of nowhere, as Supreme Court precedent was clear and no one had suggested that the VRA did not allow private parties to bring suit. Justice Gorsuch’s one-paragraph concurrence was both unsupported and wrong. Even the single case he cited did not support his proposition.

An Arkansas district court and then the Eighth Circuit, however, followed Justice Gorsuch’s lead, ruling that only the federal Department …

The Scope Of Election Litigation, Michael T. Morley

Washington and Lee Law Review

One way to think about the “scope” of a case is based on the range of parties who are—or must be—involved in it. The broader a case’s scope in this regard, the more burdensome and costly it can be for plaintiffs to file and the more complicated and time-consuming it may be for a court to adjudicate. Requiring large numbers of parties to be involved in a case can sometimes effectively preclude otherwise meritorious suits from being filed. This is especially true in election law disputes which often arise under harried circumstances and can be subject to strict time constraints. …

Voting Rights In A Politically Polarized Era . . . And Beyond, Mark E. Rush

Washington and Lee Law Review

This Article places the impact of the Voting Rights Act (“VRA”) in historical and futuristic context. There is no gainsaying that the VRA has had a tremendously positive impact in reversing or, at least, buffering the impact of discrimination throughout United States history. This is particularly—and sadly—manifest in the actions taken by some states to restrict access to the polls and voter registration in the wake of the Supreme Court’s Shelby County decision. A healthy democracy requires free and fair elections. Therefore, it is necessary to roll back such discriminatory laws. Yet, the battle over voting rights now takes place …

Foreword: Voting Rights In A Politically Polarized Era, Maureen Edobor, Christopher B. Seaman

Washington and Lee Law Review

American democracy is under profound stress. Increasing polarization and a winner-take-all mentality to politics have led to increased conflict both within the halls of Congress and nationwide. In an era of exceedingly close elections where control of the Presidency, Congress, and state governments can turn on a relative handful of votes, the laws and processes governing democracy have themselves become a battleground.

Legal Support For Local Election Officials, Rebecca Green

Washington and Lee Law Review

Local election officials (“LEOs”) face enormous pressure. They must administer elections when a wide swath of the American public has grown mistrustful of their work; they increasingly face ominous personal attacks and threats; they cope with chronic underfunding of elections; and they must navigate frequent changes in the law governing elections. Lawyers provide a critical avenue of support for local election officials. They provide guidance on how to implement legislative mandates and judicial orders; they anticipate and prevent disputes from arising; and they represent election officials when they or their offices are sued—a more common occurrence today than ever. Although …

Legal Support For Local Election Officials, Rebecca Green

Faculty Publications

Local election officials (“LEOs”) face enormous pressure. They must administer elections when a wide swath of the American public has grown mistrustful of their work; they increasingly face ominous personal attacks and threats; they cope with chronic underfunding of elections; and they must navigate frequent changes in the law governing elections. Lawyers provide a critical avenue of support for local election officials. They provide guidance on how to implement legislative mandates and judicial orders; they anticipate and prevent disputes from arising; and they represent election officials when they or their offices are sued—a more common occurrence today than ever. Although …

Unprincipled All The Way Down, Wilfred U. Codrington Iii

Articles

In 2006, the Supreme Court issued an emergency stay order in Purcell v. Gonzalez. Sparing in words and inattentive to the realities on the ground, the opinion nevertheless made a reasonable and understandable assertion: prior to issuing relief, courts presiding over elections should take into account any harms that judicial orders might cause, particularly in the lead-up to voting, alongside other considerations unique to elections. The statement was general enough to mollify the masses in the short-term. But over the long haul, it has proven to be a vehicle through which important election decisions might be made in less than …

Problematika Pemenuhan Hak Konstitusional Pekerja Migran Indonesia Yang Bekerja Sebagai Awak Kapal Perikanan Migran Dalam Pemilu 2024, Retno Damarina, Heru Susetyo

Jurnal Hukum & Pembangunan

Setiap Warga Negara Indonesia memiliki hak konstitusional sebagaimana amanat konstitusi. Hak Konstitusional menurut Pasal 51 ayat (1) jo penjelasan Pasal 51 ayat (1) UU No.24/2003 diubah dalam menjadi Undang-undang Nomor 7 Tahun 2020 UU No.7/2020, hak konstitusional adalah “hak-hak yang diatur dalam Undang-undang Dasar Negara Republik Indonesia Tahun 1945”. Membahas hak konstituional ini dimiliki oleh semua Warga Negara Indonesia baik itu yang berada dalam wilayah teritorial Indonesia maupun yang berada di luar wilayah teritorial Indonesia, dalam hal ini adalah Pekerja Migran Indonesia (PMI) yang bekerja menjadi Anak Kapal Perikanan (AKP) migran. Tahun 2024 menjadi tahun untuk peralihan kepemimpinan pemerintahan, utamanya …

The Vagueness Of The Independent State Legislature Doctrine, Jason Marisam

Washington and Lee Law Review Online

The Independent State Legislature (ISL) Theory has been one of the hottest topics in election law, with conservative thinkers championing a strong version of the theory. In Moore v. Harper, the Supreme Court had the opportunity to turn this controversial theory into actual doctrine. The Court, though, declined to adopt a maximalist version of the theory and declined to reject it outright. Instead, it offered a vague standard that gives close to zero guidance as to where, between these two poles, the doctrine sits. Several scholars and commentators have responded to the opinion with a mix of relief, because the …

Surveys: Who's Asking? Who's Answering? Is Anybody Listening?, Virginia C. Thomas

Library Scholarly Publications

The author examines the historical impact of surveys and opinion polls on the U.S. Congress.

The Use Of Procedural Rules To Silence Minority Party Dissent In The Tennessee State Legislature And Its Racially Discriminatory Roots, Rosie Fatt

Journal of Law and Policy

The expulsion of two young Black legislators, Justin Jones and Justin J. Pearson, from the Tennessee General Assembly in April 2023 was not an aberration. This Note argues that the expulsions follow a historical pattern of systematic marginalization of Black representative power in the South. This Note connects the history of minority exclusion in state legislatures, beginning with Black legislators barred from taking their elected seats in the Georgia House, through to the present day. Specifically, it focuses on the use of procedural rules, particularly expulsions, as tools to limit the speech and representative power of Black legislators. It discusses …

Navigating Section Three From Griffin’S Case To The Case Of Couy Griffin: Who Should Decide Its Longstanding Questions?, Austin Carpenter

BYU Law Review

Section Three of the Fourteenth Amendment was a long-dormant constitutional provision enacted to bar former Confederates from political office. Then, as a result of the shocking political violence at the United States Capitol on January 6, 2021, Section Three suddenly found itself resurrected into the national political discussion. Scholars and courts are now grappling with Section Three’s original meaning and modern application to those politicians and office holders whose conduct led to the events on January 6 — events that interrupted the peaceful transfer of power and left a stain on the United States’ democratic tradition.

Yet, use of Section …

"Money That Flows In The Shadows": Citizens United, Dark Money, And The Need For Rhetorical Competence, Kristy Kocot

James Madison Undergraduate Research Journal (JMURJ)

The 2010 United States Supreme Court decision, Citizens United v. FEC, has the potential to present a significant threat to American democracy. The landmark decision removed limits on corporate contributions, allowing disproportionate dark money influence from corporations in American political campaigns. This paper explores the ethical dilemmas of the Citizens United decision, drawing from peer-reviewed scholarly journals, legal documents, and advocacy organizations to highlight the negative impact that dark money has on American politics. Citizens United and its aftermath demonstrate the necessity for rhetorical competence in a democracy with broad protections for individual and corporate speech. The paper argues …

Partisanship Creep, Katherine Shaw

Northwestern University Law Review

It was once well settled and uncontroversial—reflected in legislative enactments, Executive Branch practice, judicial doctrine, and the broader constitutional culture—that the Constitution imposed limits on government partisanship. This principle was one instantiation of a broader set of rule of law principles: that law is not merely an instrument of political power; that government resources should not be used to further partisan interests, or to damage partisan adversaries.

For at least a century, each branch of the federal government has participated in the development and articulation of this nonpartisanship principle. In the legislative realm, federal statutes beginning with the 1883 Pendleton …

Beyond The Ballots: An Exploration Of Indonesian Democracy Through The Lens Of Campaigning And Dynasticism In The 2024 Indonesian General Election, Alexandra Richmond

Independent Study Project (ISP) Collection

This paper offers a comprehensive exploration of Indonesian democracy, focusing on the dynamics of campaigning and dynasticism within the context of the 2024 Indonesian General Election. Drawing on the anthropological frameworks of historical particularism and functionalism, the research employs a mixed-method approach, combining cultural and participant observation, archival review, and interviews. Through cultural and participant observations in Bali and Java, the study unveils the intricate connections between political support, community unity, and the influence of vote-buying practices. Archival review delves into contentious issues surrounding electoral laws, particularly the Constitutional Court's exception to the age requirement for presidential candidates, revealing conflicts …

Crystalizing Community: “Communities Of Interest” And The 2020 Michigan Independent Citizens Redistricting Commission, Edward Webre Plaut, Elizabeth Powers

University of Michigan Journal of Law Reform

The Michigan Independent Citizens Redistricting Commission (MICRC) met for the first time in 2020 after it was created via ballot initiative in 2018. The MICRC included thirteen Michiganders tasked with drawing state house, senate, and congressional districts. The newly amended Michigan Constitution charged the MICRC with incorporating a new criterion previously unknown to Michigan redistricting: communities of interest. Communities of interest (COIs) have played a role in redistricting law across several states, gaining prominence after the Supreme Court’s landmark decision in Shaw v. Reno as an ostensibly race-neutral “traditional districting principle.” However, the concept is difficult to define. This Note …

Conflicting Decisions: Why The Privy Council Drifted From Precedent In Deciding Cunningham V Homma, Keita Szemok-Uto

Dalhousie Law Journal

*This contribution has not been peer-reviewed.

This paper highlights the structural barriers to voting rights that Japanese-Canadians in BC faced in the early 20th century. It documents Tomekichi Homma’s challenge of provincial legislation which prevented the Japanese from voting in local elections. His fight went to the Judicial Committee of the Privy Council, then the highest court of appeal in Canada. While Homma challenged the law because it denied voting rights based on racial grounds, the courts made little to no reference to race or ethnicity in hearing the issue; their focus was on questions of constitutionality and the division …

Resurrecting Weighted Voting, Norman R. Williams

Buffalo Law Review

No abstract provided.

The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw

Articles

In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates …

The California Supreme Court Replaces Gingles Prong One, Bruce A. Wessel, Jason D. D'Andrea

Fordham Law Voting Rights and Democracy Forum

No abstract provided.