Election Law Commons^™

Election Law—Introduction, Jessica A. Levinson

Loyola of Los Angeles Law Review

No abstract provided.

The Ceo And The Hydraulics Of Campaign Finance Deregulation, Sarah C. Haan

Northwestern University Law Review

Voters increasingly view their consumer activities, not their campaign contributions, as the most meaningful way to participate in politics. In 2014, after it became public that Mozilla’s CEO, Brendan Eich, had made a controversial political donation in a state ballot proposition, consumer pressure led to his resignation. Eich’s downfall and the politicization of retail markets means that business leaders are unlikely to respond to McCutcheon v. FEC by embracing transparency with their campaign donations, and also suggests that campaign finance deregulation is causing hydraulic effects that the Supreme Court has failed to anticipate. This Essay explores what “economic reprisal” means …

What's At Stake?: Bluman V. Federal Election Commission And The Incompatibility Of The Stake-Based Immigration Plenary Power And Freedom Of Speech, Alyssa Markenson

Northwestern University Law Review

Section 441e of the U.S. Code prohibits “foreign nationals”—all noncitizens except lawful permanent residents—from making any contribution or expenditure in any federal, state, or local election. In Bluman v. Federal Election Commission, the Supreme Court summarily affirmed a three-judge district court’s decision to uphold the law based on the government’s compelling interest in preventing foreign influence over U.S. elections. Notably, Bluman’s holding was animated by its reasoning that the extent of First Amendment protection should be directly tied to the aliens’ stake in American society—a reflection of the Supreme Court’s jurisprudence since the middle of the twentieth century that seeks …

Voting Squared: Quadratic Voting In Democratic Politics, Eric A. Posner, E. Glen Weyl

Vanderbilt Law Review

Conventional democratic institutions aggregate preferences poorly. The norm of one-person-one-vote with majority rule treats people fairly by giving everyone an equal chance to influence outcomes but fails to give proportional weight to people whose interests in a social outcome are stronger than those of other people. This problem leads to the familiar phenomenon of tyranny of the majority. Various institutions that have been tried or proposed over the years to correct this problem-including supermajority rule, weighted voting, cumulative voting, "mixed constitutions," executive discretion, and judicially protected rights-all badly misfire in various ways, for example, by creating gridlock or corruption. This …

High Courts And Election Law Reform In The U.S. And India, Manoj Mate

Journal Articles

Over the past decade, the push for electoral reform in India and the United States – the world’s two largest democracies – has been prominent in the politics and governance of both nations. The supreme courts in each country have played important, but distinct, roles in recent electoral reform efforts, responding to different facets and regimes of political corruption. In the 1990s, the Indian Supreme Court became increasingly assertive in requiring greater levels of disclosure and transparency for political parties in India. In a series of decisions in 2002 and 2003, the Indian Supreme Court challenged the Central Government’s failure …

Democracy, Foot Voting, And The Case For Limiting Federal Power, Ilya Somin

Montana Law Review

No abstract provided.

The Legal Quagmire Of Irc § 501(C)(4) Organizations And The Consequential Rise Of Dark Money In Elections, Daniel C. Kirby

Chicago-Kent Law Review

Section 501(c)(4) organizations have recently become a hot topic with respect to campaign finance. Following the 2010 Supreme Court case, Citizens United v. Federal Election Commission, the number of IRC § 501(c)(4) organizations ballooned in number, and the amount of money flowing through § 501(c)(4) groups increased 2390 percent from the 2008 election cycle to the 2012 election cycle. This essay explores the dangers to the campaign finance system of the substantial increase in spending by IRC § 501(c)(4) organizations. The foundational claim of this essay is that IRC § 501(c) is in need of a statutory and regulatory overhaul …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Zachary D. Clopton, Steven E. Art

Northwestern University Law Review

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their senators by popular vote. Despite its significance, there has been little written about what the Amendment means or how it works. This Article provides a comprehensive interpretation of the Seventeenth Amendment based on the text of the Amendment and a variety of other sources: historical and textual antecedents, relevant Supreme Court decisions, the complete debates in Congress, and the social and political factors that led to this new constitutional provision. Among other things, this analysis …

The Intratextual Independent “Legislature” And The Elections Clause, Michael T. Morley

NULR Online

No abstract provided.

Citizens United And Taxable Entities: Will Taxable Entities Be The New Stealth Dark Money Campaign Organizations?, Donald B. Tobin

Faculty Scholarship

The electoral process in the United States is going through a major transition as money increasingly pours into non-candidate independent groups (“IGs”). Before 2000, IGs could engage in significant electoral advocacy without having to disclose the IG’s donors or its expenditures. Congress sought to address the lack of disclosure by requiring section 527 political organizations to disclose their contributions and expenditures. IGs quickly sought an alternative organizational form for engaging in political advocacy. The alternative organizational form of choice has been the tax-exempt section 501(c)(4) social welfare organization.

In a 2007 article, I explored whether such tax-exempt entities would be …

Youth Voting Rights Project 2015, Rachel J. Anderson

Voter Education Program Collection

The Youth Voting Rights Project educates students about voting rights and Nevada law and brings them onto the University of Nevada, Las Vegas, campus.

Remedial Equilibration And The Right To Vote Under Section 2 Of The Fourteenth Amendment, Michael T. Morley

Scholarly Publications

The modern "voting wars" involve repeated legal challenges alleging that procedures aimed at protecting the electoral process, such as proof-of-citizenship requirements for registration and voter identification laws, violate the fundamental constitutional right to vote. In adjudicating such cases, courts make effectively subjective judgments about whether the challenged statutes or regulations make voting too burdensome.

Section 2 of the Fourteenth Amendment offers critical, and previously overlooked, insight into the scope of the right to vote. It imposes a uniquely severe penalty-reduction in representation in the House of Representatives and Electoral College-when that right is violated or abridged. 'remedial deterrence," a crucial …

The Intratextual Independent "Legislature" And The Elections Clause, Michael T. Morley

Scholarly Publications

Many states have delegated substantial authority to regulate federal elections to entities other than their institutional legislatures, such as independent redistricting commissions empowered to determine the boundaries of congressional districts. Article I’s Elections Clause and Article II’s Presidential Electors Clause, however, confer authority to regulate federal elections specifically upon State “legislatures,” rather than granting it to States as a whole. An intratextual analysis of the Constitution reveals that the term “legislature” is best understood as referring solely to the entity within each state comprised of representatives that has the general authority to pass laws. Thus, state constitutional provisions or laws …

The Intratextual Independent "Legislature" And The Elections Clause, Michael T. Morley

Faculty Scholarship

No abstract provided.

Remedial Equilibration And The Right To Vote Under Section 2 Of The Fourteenth Amendment, Michael T. Morley

Faculty Scholarship

No abstract provided.

Who's Afraid Of The Hated Political Gerrymander?, Luis Fuentes-Rohwer

Kentucky Law Journal

The political gerrymander has few friends among scholars and commentators. Even a majority on the Supreme Court agreed that the practice violates constitutional and democratic norms. Andyet, this is one of the few issues that the US. Supreme Court refuses to regulate. The justices mask their refusal to regulate this area on a professedi nability to divinej uaicially-manageables tandards. In turn, scholars offer new standards for the justices to consider. This is not only a mistake but also misguided. The history of the political question doctrine makes clear that the discovery of manageable standards has never controlled the Court's prior …

Enforcing The Fifteenth Amendment, Ellen D. Katz

Book Chapters

This chapter examines efforts to enforce the Fifteenth Amendment in the period from United States v. Reese through Shelby County v. Holder. Reese and Shelby County expose the most rigorous stance the Court has employed to review congressional efforts to enforce the Fifteenth Amendment, while the years in-between show Congress and the Court working more in tandem, at times displaying remarkable indifference to blatant violations of the Fifteenth Amendment, and elsewhere working cooperatively to help vindicate the Amendment’s promise. Defying simple explanation, this vacillation between cooperation and resistance captures the complex and deeply consequential way concerns about federal power, …

Justice Ginsburg's Umbrella, Ellen D. Katz

Book Chapters

Near the end of her dissent in Shelby County v. Holder, Justice Ginsburg suggested a simple analogy to illustrate why the regional protections of the Voting Rights Act (VRA) were still necessary. She wrote that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Fighting Foreign-Corporate Political Access: Applying Corporate Veil-Piercing Doctrine To Domestic-Subsidiary Contributions, Ryan Rott

Michigan Law Review

Campaign finance regulations limit speech. The laws preclude foreign nationals, including foreign corporations, from participating in U.S. politics via campaign contributions. The unusual characteristics of corporations, however, may allow foreign corporations to exploit a loophole in the regulatory regime. A foreign corporation may contribute to political campaigns by acquiring a domestic subsidiary and dominating it. This Note addresses how these unusual corporate behaviors enable foreign corporations to illegally corrupt the political process. This Note concludes that to close the loophole without violating the free speech rights of domestic subsidiaries, Congress should enact legislation which would apply corporate veil-piercing theory to …

A Case For The Electoral College And For Its Faithless Elector, Stephen M. Sheppard

Faculty Articles

Every four years, the cry goes up to destroy the Electoral College. That cry is especially loud in years when a candidate is elected president who receives a minority of the votes. The election of a "minority president" happened with the election of 2000, but it had happened before. The Electoral College has elected three presidents whom a majority of the voters voted against: Rutherford B. Hayes in 1876, Benjamin Harrison in 1888, and George W. Bush in 2000. (A fourth president was also elected with a minority of the popular vote—John Quincy Adams in 1824—through that election was by …