Election Law Commons^™

Twenty-Third Amendment Problems Confronting District Of Columbia Statehood, Derek T. Muller

Journal Articles

Proposals to make the District of Columbia a state would leave behind a new, substantially smaller District named "Capital." The Twenty-Third Amendment guarantees that the new District would have three electoral votes, no matter how few people reside in it. Proposals that would make the District of Columbia state do not adequately address this issue. Statehood, if it proceeds, should be conditioned on repeal of the Twenty-Third Amendment. Potential alternative statutory solutions to the Twenty-Third Amendment--which do not exist in recent bills that Congress has considered--present constitutional, legal, and practical problems.

In one sense, the scope of this Article is …

Weaponizing The Ballot, Derek T. Muller

Journal Articles

State legislatures are considering passing laws to prevent presidential candidates from appearing on the ballot if they fail to disclose their tax returns. These proposals exceed the states' power under the Elections Clause and the Presidential Electors Clause. States have no power to add qualifications to presidential or congressional candidates. But states do have constitutional authority to regulate the manner of holding elections and to direct the manner of appointing presidential electors. "Manner" regulations that relate to the ballot are those that affect the integrity and reliability of the electoral process itself or that require a preliminary showing of substantial …

Reducing Election Litigation, Derek T. Muller

Journal Articles

Election litigation has exploded, and judges have increasingly been asked to evaluate ever-finer points of election administration. This Article posits some reasons that the judiciary has done so, and it offers potential ways to reduce election litigation.

Part I examines the increase in litigation and attributes at least some of that increase to several causes: increased campaign expenditures on litigation; increased partisanship in state legislatures yielded more contentious election laws; the decline of preclearance under the Voting Rights Act after Shelby County v. Holder; and Supreme Court extensions of the Anderson v. Celebrezze framework to broad areas of election …

The Political (Mis)Representation Of Immigrants In The Census, Ming Hsu Chen

Publications

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights but based on their rights as current and future members of the political community. This is the second of two Essays. The first Essay focused on voting restrictions impacting Asian American and Latino voters. The second Essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 Census. Together, the Essays critique the …

Toward A More Democratic America, Thomas Kleven

Seattle Journal for Social Justice

No abstract provided.

New York State's Congressional Delegation May Lose Two Members, Jeffrey M. Wice

Redistricting Resources

According to a new report released on December 22, 2020 by Election Data Services, Inc. (EDS), New York State could lose up to two congressional districts after the official state population totals are announced in January. This article explores this possibility through 2020 Census data estimates.

Corporations And The American Polity, Patrick Labossiere

Student Theses and Dissertations

Research on corporate communications’ effects on politics presents an acknowledgement of a relationship between the two topics, leaving a void in the explanation and examination of this topic. The void presents an opening to introduce a conceptual process for how corporations are able to craft communications to influence the American Polity, the democratic social organization within the United States. This research begins with a historical review of how corporations gain prominence in American society, capturing the ability to participate in the democratic social organization of the polity. A qualitative analysis of several conceptual frameworks serves as data, to establish an …

Third Wheeling In The Two-Party System: How Same-Party Replacement Systems Impede The Replacement Of Independent And Third-Party Legislators, Tyler Yeargain

West Virginia Law Review

No abstract provided.

Elections: Elections And Primaries Through The Pandemic, Joseph M. Brickman, Logan D. Kirkes

Georgia State University Law Review

The 2020 election cycle was all but normal. Due to certain health concerns associated with the COVID-19 pandemic, Georgia delayed its primary election three months from March to June and summarily mailed absentee ballot request forms to all active, registered voters. From presidential social media postings to a federal lawsuit, debate ensued over the widespread usage of absentee ballots, their overall effectiveness and security, who would receive request forms, and whether postage requirements qualified as an impermissible poll tax. To further compound these uncertainties, Georgia legislators, who are not permitted to fundraise or campaign during the forty-day legislative session, had …

Dean's Desk: Iu Maurer Research Focusing On Most Topical Issues Of 2020, Austen L. Parrish

Austen Parrish (2014-2022)

The three major stories of 2020 — the COVID-19 pandemic, the heightened awareness of racial injustice and the election — have made this year one that we will remember. While we couldn’t have envisioned all that would happen at the beginning of the year, our faculty are producing useful and thought-provoking scholarship on all these topics.

I often use my Dean’s Desk columns to celebrate student and alumni achievement, to describe new and innovative programs in our curriculum, or to share how the law school supports and collaborates with community organizations and the courts to provide pro bono legal services …

Postponing Federal Elections Due To Election Emergencies, Michael T. Morley

Washington and Lee Law Review Online

Federal Election Day didn’t just happen. Rather, it reflects the culmination of a series of federal laws enacted over the course of nearly seventy years. Each of those laws requires states to hold a different type of federal election on the same day. These statutes also grant states flexibility to hold federal elections at a later date if there is a “failure to elect” on Election Day. Based on a detailed examination of these provisions’ texts, legislative histories, and histories of judicial application, this Article explains that federal Election Day laws empower states to postpone or extend federal elections when …

The Importance Of Transparent Elections, Rebecca Green

Popular Media

No abstract provided.

Unravelling The Us Presidential Election, Lori A. Ringhand

Scholarly Works

One of the most perplexing things about US elections is the extent to which we litigate what in much of the rest of the world are routine nuts and bolts questions about how elections work. I had first-hand experience with this during the 2000 presidential election when I was living in the UK. Why, I constantly was asked, is the US Supreme Court deciding your presidential election?

It’s a good question, and also a timely one given how the current presidential election is unfolding.

Recounts And Ballot Challenges In The 2020 Presidential Election: Legal Expert Provides Insights, Bruce Brumberg, Rebecca Green

Popular Media

No abstract provided.

Alternatives To California’S Sb 27: Incentivizing The Release Of Tax Returns Without Restricting Ballot Access, Matthew Tang

Loyola of Los Angeles Law Review

Donald Trump is the first President since 1977, and the first major- party nominee since 1980, to refuse to release any of his federal income tax returns. This break in tradition has led lawmakers in at least twenty- five states to propose legislation requiring presidential candidates to disclose their tax returns in order to appear on state ballots. California is one of those states. On July 30, 2017, California Governor Gavin Newsom signed SB 27 into law, effectively barring presidential candidates who have not made available for public inspection the last five years of their income tax returns from appearing …

Itula And Others V Minister Of Urban And Rural Development And Others 2020 (1) Nr 86 (Sc), Dunia P. Zongwe

SAIPAR Case Review

At the heart of this electoral case lies deep questions about what it means exactly to ‘know’ something and about a few steps that judges should avoid when reasoning from unknowns. In short, the court refused to cancel a presidential election because those who challenged that election in court failed to prove that the absence of verifiable paper trail changed the outcome of the election. If a judge lacks evidence of any claim put forth by the parties, they cannot lean on the absence of evidence to arrive at any conclusion, except to conclude that they do not know whether …

Undefeated - Bike To Vote Exhibit Panel, Sally Brown

Undefeated Exhibit Panels

No abstract provided.

Readying Virginia For Redistricting After A Decade Of Election Law Upheaval, Henry L. Chambers Jr.

University of Richmond Law Review

Until Virginians approved Constitutional Amendment 1 in November 2020, the Virginia Constitution required the General Assembly redraw Virginia’s state legislative and congressional electoral districts every ten years in the wake of the national census.1 Redistricting culminated in the adoption of legislation redefining those districts. If the redistricting process had worked as intended after the 2010 census, electoral districts would have been redrawn and adopted by the General Assembly in 2011, approved by the Governor, and used for the ensuing decade. The redistricting process did not work as the Virginia Constitution contemplated. The General Assembly redrew, and the Governor approved, state …

Is It Time To Revisit Qualified Immunity?, Joseph A. Schremmer, Sean M. Mcgivern

Faculty Scholarship

The right to sue and defend in the courts of the several states are essential privileges of citizenship. Eight generations ago, this right was unavailable to black people, because descendants of African slaves were never intended to be citizens. Then, and for years to come, local governments failed to protect African Americans from violence and discrimination and were sometimes complicit in those violations.

Qualified immunity was born in 1982 when the Supreme Court decided Harlow v. Fitzgerald. With an outflow of questionable court decisions shielding officers solely because they act under color of state law, it is time for the …

Unwaivable: Public Enforcement Claims And Mandatory Arbitration, Myriam E. Gilles, Gary Friedman

Articles

This essay, written for a conference on the “pathways and hurdles” that lie ahead in consumer litigation, is the first to examine the implications of California’s recent jurisprudence holding public enforcement claims unwaivable in standard-form contracts of adhesion, and the inevitable clash with the U.S. Supreme Court’s decisional law interpreting the Federal Arbitration Act. With its rich history of rebuffing efforts to deprive citizens of public rights through private contract, California provides an ideal laboratory for exploring this escalating conflict.