Election Law Commons^™

Minority And Vulnerable Populations Voting By Mail: A Convenience Or A Disadvantage, Kylan Sophia Josephine Memminger

Washington and Lee Journal of Civil Rights and Social Justice

Mail-in voting has feverishly gained popularity in the United States over the last few primary and general elections. In light of this new balloting reality, a trend has emerged. Statistics from minority and vulnerable populations reveal that mail-in ballots composed and sent by these groups have been consistently rejected at a higher rate compared to majority populations. This Note begins by surveying the constitutional background for bringing a challenge to voting rights legislation, while confronting the divisive history of legal precedent surrounding these claims. This Note then analyzes the Supreme Court’s decision in Crawford v. Marion County Election Board and …

Election Surveillance, Rebecca Green

Faculty Publications

For most of this country's history, we have relied on human eyes and ears to oversee our system of elections. Modern surveillance tools, from cell phones to video streaming platforms, are now cheap and ubiquitous. Technology holds great promise to increase election transparency. But the 2020 election confirmed what has become quite clear: the use of technology to record election processes does not always serve the goal of reassuring the public of the integrity of elections; in fact, it can do the opposite. As legislatures around the country reexamine rules governing elections following the 2020 election, an underexplored question is …

Gender, Voting Rights, And The Nineteenth Amendment, Paula A. Monopoli

Faculty Scholarship

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that “there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment.” This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct …

Voting Rights For People With Diminished Mental Capacity, Courtney Schiffler

Mitchell Hamline Law Review

No abstract provided.

Hyperpartisanship, Impeachment, And The Unchecked Executive Branch, Lindsay Dreyer

Mitchell Hamline Law Review

No abstract provided.

Women, Motherhood, And The Quest For Easier Entry Into Campaigns For Elected Office, Harold Melcher

Mitchell Hamline Law Review

No abstract provided.

Partisan Gerrymandering And The Right To Privacy, Ana Deckey

CMC Senior Theses

This paper argues that partisan gerrymanderers violate citizens’ right to privacy by using data containing sensitive information on citizens without a compelling state interest. It first details how partisan gerrymandering claims have been argued in Court in the past. Next, it discusses theories of the right to privacy, mainly exploring the tensions between James Madison’s writings on privacy and Warren and Brandeis’ famed The Right to Privacy. Then, I present originalist arguments for upholding the original meaning and principles of the right to privacy and the Fourth and Fourteenth Amendments before walking through case law related to privacy and …

Felony Disenfranchisement And Voting Rights Restoration In The States, Manoj Mate

Journal Articles

No abstract provided.

Temporal Buffer Zones: The Constitutional Case For Regulating Political Speech Immediately Prior To Elections, Kiel Brennan-Marquez, Douglas M. Spencer

Publications

The First Amendment forbids most limits on political speech, but it permits buffer zones around polling stations on Election Day. This exception to the deregulatory thrust of election speech doctrine is striking, and strikingly under-theorized. In what follows, we excavate the core principle that underpins the buffer zone exception-decisional solemnity-and we argue that, properly understood, the same principle justifies the use of temporal buffer zones: stricter-than-normal regulations on certain types of political speech in the immediate vicinity of an election. Voting, we argue, is an act different in kind from the deliberation that precedes it. Accordingly, governmental efforts to ensure …

Voter Data, Democratic Inequality, And The Risk Of Political Violence, Bertrall L. Ross Ii, Douglas M. Spencer

Publications

Campaigns' increasing reliance on data-driven canvassing has coincided with a disquieting trend in American politics: a stark gap in voter turnout between the rich and poor. Turnout among the poor has remained low in modern elections despite legal changes that have dramatically decreased the cost of voting. In this Article, we present evidence that the combined availability of voter history data and modern microtargeting strategies have contributed to the rich-poor turnout gap. That is the case despite the promises of big data to lower the transaction costs of voter outreach, as well as additional reforms that have lowered the barriers …

The Lawfulness Of The Fifteenth Amendment, Travis Crum

Scholarship@WashULaw

One of the most provocative debates in constitutional theory concerns the lawfulness of the Reconstruction Amendments’ adoptions. Scholars have contested whether Article V permits amendments proposed by Congresses that excluded the Southern States and questioned whether those States’ ratifications were obtained through unlawful coercion. Scholars have also teased out differences in how States were counted for purposes of ratifying the Thirteenth and Fourteenth Amendments. This debate has focused exclusively on the Thirteenth and Fourteenth Amendments, dismissing the Fifteenth Amendment as a mere sequel.

As this Essay demonstrates, the unique issues raised by the Fifteenth Amendment’s ratification adds important nuance to …

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 …

Election Law And Election Subversion, Lisa Marshall Manheim

Articles

Scholars of American election law used to take the rule of law as a given. The legal system, while highly imperfect, appeared sturdy, steady, and functional. Recent election cycles—culminating in dramatic attempts at election subversion—have revealed this assumption beginning to break down. Without the rule of law as a dependable constant, the study of election law quickly expands. Legal experts now are simultaneously occupied with: first, the substance of election laws; second, the design of election institutions; and third, the threat of participants unlawfully undermining elections from within. This Essay identifies and contextualizes the rule-of-law pivot that is reflected in …

Countering The Big Lie: The Role Of The Courts In The Post Truth World, Edward D. Cavanagh

Faculty Publications

(Excerpt)

This Essay analyzes the role of the courts in handling Trump’s election lie. It argues that the courts were certainly correct in giving short shrift to Trump’s lawsuits, but further that the courts should have done more than simply dismiss Trump’s claims. Had the courts aggressively utilized existing tools to identify and punish prosecution of baseless claims, including Rule 11 of the Federal Rules of Civil Procedure and the courts’ inherent powers to control proceedings before them, the Trump election lie might well have been put to rest immediately before it could take root among die-hard Trump supporters. This …

Judicial Retention Elections For State Appellate Judges: The Implications Of The Ballot-Access Cases, James Blumstein

Vanderbilt Law School Faculty Publications

This Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states’ requirements that judges be elected. But …

Survival Voting And Minority Political Rights, Douglas M. Spencer, Lisa Grow Sun, Brigham Daniels, Chantel Sloan, Natalie Blades

Publications

The health of American democracy has literally been challenged. The global pandemic has powerfully exposed a long-standing truth: electoral policies that are frequently referred to as "convenience voting" are really a mode of "survival voting" for millions of Americans. As our data show, racial minorities are overrepresented among voters whose health is most vulnerable, and politicians have leveraged these health disparities to subordinate the political voice of racial minorities.

To date, data about racial disparities in health has played a very limited role in assessing voting rights. A new health lens on the racial impacts of voting rules would beneficially …

Blind Justice: Algorithms And Neutrality In The Case Of Redistricting, Douglas M. Spencer, Moon Duchin

Publications

In several areas of law and public policy, there have been longstanding dreams that computers can secure decisionmaking that takes only some things into account, while remaining demonstrably neutral to other factors. In 2022, the U.S. Supreme Court will consider mandating race-neutrality in multiple domains, notably in college admissions and redistricting. In this piece, we clarify the real and imagined uses of computers in redistricting, considering their application for optimization approaches and, more recently, for representative sampling. The current pitch to the Court for a race-blind Voting Rights Act is discussed at length.

Making Appointment The Means Of Presidential Removal Of Officers Of The United States, David M. Driesen

Lewis & Clark Law Review

This Article examines the relationship between appointment and removal of officers of the United States, focusing on the administrations of Andrew Jackson, Andrew Johnson, Richard Nixon, and Donald Trump. These administrations’ use of appointment and removal underlines the potential tension between political removal accomplished without Senate approval of a successor and the Constitution’s goal of securing the rule of law.

To remedy these issues, this Article proposes that Congress pass a statute forbidding presidential removal of an agency head (and other Senate-approved appointees) until the President nominates a qualified successor or until the Senate confirms a successor. Integrating Appointments Clause …

Requiring Majority Winners For Congressional Elections: Harnessing Federalism To Combat Extremism, Edward B. Foley

Lewis & Clark Law Review

Congress should enact a law requiring a candidate for a seat in Congress to receive a majority of votes in order to win the election. Congress should let states determine what particular procedure to use to determine whether a candidate wins a majority, as there are significantly different methods of identifying a majority winner. While this simple piece of legislation might seem inconsequential—many Americans assume, erroneously, that elections already require majority winners—it in fact would cause states to undertake a form of experimentation in the details of electoral system design that would have the effect of counteracting the threat that …

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

Lewis & Clark Law Review

This Article provides the first comprehensive analysis of the numerous election law cases that the Supreme Court and the federal appellate courts decided in the lead up to the 2020 election. The picture is bleak. Instead of protecting the constitutional right to vote, the Supreme Court and lower federal appeals courts unduly deferred to state legislatures in how to run the election, with little concern for the difficulties voters faced during a pandemic. If the courts do not alter their jurisprudence, then the only solution may be robust federal legislation or a constitutional amendment that enshrines the right to vote …