Election Law Commons^™

Deregulated Redistricting, Travis Crum

Scholarship@WashULaw

From the civil rights movement through the Obama administration, each successive redistricting cycle involved ever-greater regulation of the mapmaking process. But in the past decade, the Supreme Court has re-written the ground rules for redistricting. For the first time in fifty years, Southern States will redistrict free of the preclearance process that long protected minorities from having their political power diminished. Political parties can now openly engage in egregious partisan gerrymandering.

The Court has withdrawn from the political thicket on every front except race. In so doing, the Court has engaged in decision-making that is both activist and restrained, but …

One Vote, Two Votes, Three Votes, Four: How Ranked Choice Voting Burdens Voting Rights And More, Brandon Bryer

University of Cincinnati Law Review

No abstract provided.

The National Popular Vote On Trial, Keaton Barnes

Arkansas Law Review

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them …

Trumped: Intentional Voter Suppression In The Wake Of The 2020 Election, Wesley N. Watts

Mercer Law Review

There was nothing normal about the year 2020. For just the third time in history, an American president was impeached, world icons John Lewis and Kobe Bryant passed away, the country of Australia was devastated by brushfires that burned some forty-six million acres of land, and The United States faced a racial reckoning the likes of which had been unseen since the Civil Rights era. All of this took place on the heels of a global pandemic that has killed more than 4.3 million people to date and has infected 10% of the global population. These events of the year …

Time To Mail It In? A Survey Of 2020 Voting Rights Issues In Arkansas And Recommendations For More Inclusive Elections, Kim Vu-Dinh

University of Arkansas at Little Rock Law Review

The highly contagious COVID-19 pandemic, combined with over fifty lawsuits brought by former President Donald Trump, made the general election of 2020 one of the most controversial in the history of the United States. Accusations of voter disenfranchisement proliferated across the nation and were initiated by members of both sides of the political spectrum, even before Election Day. Arkansas was no exception to this rule. In 2020, multiple Arkansas lawsuits highlighted the weaknesses of the state’s voter infrastructure, particularly with regard to the absentee ballot process. Voting-by-mail was particularly important in the pandemic year when long lines became a public …

Yazzie V. Hobbs: The 2020 Election And Voting By Mail On- And Off-Reservation In Arizona, Jean Reith Schroedel, Kara Mazareas, Joseph Dietrich, Jamaica Bacus-Crawford

University of Arkansas at Little Rock Law Review

During the 2020 election, voting by mail was touted as a way to safely vote from home and avoid the risks of contracting COVID-19. While voting by mail is definitely safer than in-person voting, it also assumes that all citizens have equal access to the mail services needed for voting by mail. Lawyers, acting on behalf of Navajo plaintiffs in Arizona, argued in Yazzie et al. v. Hobbs (2020) that voters living on the Navajo Nation faced impermissible barriers in accessing voting by mail. They provided evidence showing there was limited mail service on the reservation and that mail delivery …

The Illiberalization Of American Election Law: A Study In Democratic Deconsolidation, James A. Gardner

Journal Articles

For many years, the dominant view among American election law scholars has been that the U.S. Supreme Court’s constitutional jurisprudence of democratic practice got off to a promising start during the mid-twentieth century but has since then slowly deteriorated into incoherence. In light of the United States’ recent turn toward populist authoritarianism, that view needs to be substantially revised. With the benefit of hindsight, it now appears that the Supreme Court has functioned, in its management of the constitutional jurisprudence of democracy, as a vector of infection—a kind of super-spreader of populist authoritarianism.

There is, sadly, nothing unusual these days …

A Guide To The 87th Texas Legislative Session, José Menéndez, Pearl D. Cruz

The Scholar: St. Mary's Law Review on Race and Social Justice

Challenges and potential solutions during the 87th Texas Legislative session.

Election Observation Post-2020, Rebecca Green

Faculty Publications

The United States is in the midst of a crisis in confidence in elections, despite the many process protections baked into every stage of election administration. Part of the problem is that few Americans know just how rigorous the protections in place are, and most Americans have no concept of how modern elections are run. Election observation statutes are intended to provide a window for members of the public to learn about and oversee the process and to satisfy themselves that elections are fair and that outcomes are reliable. Yet in 2020, in part due to unforeseen pandemic conditions, election …

Excessive Judicialization, Extralegal Interventions, And Violent Insurrection: A Snapshot Of Our 59th Presidential Election, Jerry H. Goldfeder

Fordham Law Review

The Symposium included in this issue of the Fordham Law Review provides scholars and lawyers with the opportunity to think about some of the most provocative issues related to the way we elect our chief executive. When first conceived, this Symposium was meant to expand and elevate the discourse. Many of the participating authors have thought and written about these matters for years. It was our hope that, after fifty-nine presidential elections, we could shape the debate—and perhaps reform the law—for our next presidential election, our country’s sixtieth. Little did we realize at the inception of this project that the …

Voting As Exclusion, Ava Ayers

Fordham Law Review

This Essay considers two prevalent narratives about voting. In one narrative, voting expresses the civic virtue of the voter. In another, voting is an expression of inclusion in our political community’s circle of membership. I argue that although both narratives are true, and important, there is a third narrative that shadows them both. In this third narrative, voting affirms the exclusion of millions of people from our political community. The stories we tell about voting are incomplete and, sometimes, harmful.

Election Observation Post-2020, Rebecca Green

Fordham Law Review

The United States is in the midst of a crisis in confidence in elections, despite the many process protections baked into every stage of election administration. Part of the problem is that few Americans know just how rigorous the protections in place are, and most Americans have no concept of how modern elections are run. Election observation statutes are intended to provide a window for members of the public to learn about and oversee the process and to satisfy themselves that elections are fair and that outcomes are reliable. Yet in 2020, in part due to unforeseen pandemic conditions, election …

Reducing Election Litigation, Derek T. Muller

Fordham Law Review

Which candidate’s name should be listed first on a ballot? Should inactive voters’ names appear printed in polling place books? Should elections be conducted exclusively by mail? Should online voter registration be available to prospective voters? When voters sign a petition to help a candidate appear on the ballot, must the petition’s circulator reside in the state? These are the questions that ordinary election administration rules answer. There might be better or worse rules. These rules might advance one set of benefits in exchange for another set of costs. They could benefit one candidate or group over another. Like every …

The Independent State Legislature Doctrine, Michael T. Morley

Fordham Law Review

The U.S. Constitution grants authority to both regulate congressional elections and determine the manner in which a state chooses its presidential electors specifically to the legislature of each state, rather than to the state as an entity. The independent state legislature doctrine teaches that, because a legislature derives its power over federal elections directly from the Constitution in this manner, that authority differs in certain important respects from the legislature’s general police powers that it exercises under the state constitution. Although the doctrine was applied on several occasions in the nineteenth century, it largely fell into desuetude in the years …

Reforms For Presidential Candidate Death And Inability: From The Conventions To Inauguration Day, John Rogan

Fordham Law Review

The 2020 presidential election involved several significant threats to the health and safety of the candidates. But dangers to presidential candidates and presidents-elect have been present before. Despite previous candidate vacancies and near misses, the procedures for how to address many of these contingencies have shortcomings. Some scenarios are left unaddressed. The policies for other situations might be difficult to use or could result in undemocratic outcomes. This Article discusses possible reforms for addressing disability or death of presidential candidates from the time they are nominated at their political parties’ conventions to when they are sworn into office on Inauguration …

How States Can Avoid Overcrowded Ballots But Still Protect Voter Choice, Richard Winger

Fordham Law Review

Since the beginning of government-printed ballots for federal and state offices in 1889, state legislatures have been wrestling with the problem of how many signatures should be required for independent candidates and new political parties to get on the ballot. Laws on this subject are very volatile; there is not a single instance in United States history in which applicable state laws were the same for two consecutive presidential elections. The volatility increased in 1968, when the U.S. Supreme Court ruled that overly strict ballot access laws for new parties and independent candidates violatetheU.S.Constitution. Sincethen,every state has been sued by …

Compulsory Voting And Black Citizenship, Ekow N. Yankah

Fordham Law Review

Protesting Black votes is part of our history of rejecting Black Americans as legitimate wielders of political power and contesting the fullness of Black citizenship. Obviously, hostility toward viewing Black Americans as deserving of the rights owed to other Americans is present in nearly every aspect of American life. But, among the oldest and most contentious hostilities—from the Civil War to Reconstruction to the Civil Rights Movement to contemporary voter suppression efforts—has been the resistance against Black votes. Any opportunity to quell this locus of racial animus calls for urgent address. Particularly, at this moment, when long-standing prophylactic measures such …

The Illiberalization Of American Election Law: A Study In Democratic Deconsolidation, James A. Gardner

Fordham Law Review

For many years, the dominant view among American election law scholars has been that the U.S. Supreme Court’s constitutional jurisprudence of democratic practice got off to a promising start during the mid-twentieth century but has since then slowly deteriorated into incoherence. In light of the United States’ recent turn toward populist authoritarianism, that view needs to be substantially revised. With the benefit of hindsight, it now appears that the Supreme Court has functioned, in its management of the constitutional jurisprudence of democracy, as a vector of infection—a kind of super-spreader of populist authoritarianism. There is, sadly, nothing unusual these days …

Free And Fair: Judicial Intervention In Elections Beyond The Purcell Principle And Anderson-Burdick Balancing, Danika Elizabeth Watson

Fordham Law Review

The United States’s politically charged 2020 federal election, conducted in the midst of a global pandemic, seismically shook the fault lines of state and local elections administration nationwide. Voters, candidates, parties, states, and political campaigns brought hundreds of claims to the courts, seeking judicial intervention to protect equity in their voting rights. The 2020 pandemic election cases demonstrated that Equal Protection claims relying on the Anderson-Burdick balancing test are both overly reliant on judicial discretion and highly vulnerable to invalidation under the Purcell principle. This Note examines the equal protection challenges raised in courts throughout the country in 2020 to …

Reifying Anderson-Burdick: Voter Protection In The Time Of Pandemic And Beyond, Keeley Gogul

University of Cincinnati Law Review

No abstract provided.