Election Law Commons^™

Georgia’S Runoff Election System Has Run Its Course, Graham P. Goldberg

Georgia Law Review

Georgia requires candidates to earn a majority of
votes in their party’s primary to win elected office. The
majority-vote requirement—passed by the General
Assembly in 1964—is stained by racially-fraught
politics of the era, and even its alleged “good
government” goals are now antiquated. This Note
explores the history of Georgia’s majority-vote
requirement, examines two legal challenges to the law,
and analyzes its flaws and virtues. Finally, this Note
demonstrates that more appealing alternatives to the
majority-vote requirement exist and recommends that
Georgia replace its current runoff election system with
either ranked choice voting or a forty-percent
threshold-vote requirement.

The Independent State Legislature Doctrine, Federal Elections, And State Constitutions, Michael T. Morley

Georgia Law Review

The U.S. Constitution does not confer authority to regulate
federal elections on states as entities. Rather, it grants that
authority specifically to the “Legislature” of each state. The
“independent state legislature doctrine” teaches that a state
constitution is legally incapable of imposing substantive
restrictions on the authority over federal elections that the U.S.
Constitution confers directly upon a state’s legislature. Over the
past 130 years, the U.S. Supreme Court has repeatedly adopted
conflicting positions on this doctrine without recognizing its
deep historical roots or normative justifications.
The independent state legislature doctrine reflects the
prevailing understanding of states, Congress, and other …

Fighting Back To Protect Student Voting Rights, Joaquin Gonzales

Faculty Articles

Many people bemoan the relatively low voter-turnout rates in the United States, particularly among younger generations. However, student voters face a wide variety of obstacles that can deter them from democratic participation. Some of the oft-discussed obstacles include jurisdictions not accepting student ID cards for the purposes of voting and making it difficult for students to register to vote at their university addresses. An additional problem that deserves further attention is the lack of on-campus voting opportunities for college and university students, and the intentional efforts in some jurisdictions to further limit those opportunities. This essay examines the problem through …

Restraining Judicial Application Of The "Safe Harbor" Provision In The Electoral Count Act, Derek T. Muller

Journal Articles

The Electoral Count Act of 1887, as codified in part at 3 U.S.C. § 5, includes a "safe harbor" for states to resolve disputes in their choices of presidential electors. Congress will treat as "conclusive" a "determination" about "any controversy or contest concerning the appointment" of presidential electors, if that determination is made "at least six days" before the time the electors are to meet. This is a rule governing how Congress handles "the counting of electoral votes as provided in the Constitution."

It is not a judicially-enforceable rule for courts to heed. And it is a rule that state …

Governing Elections Without Law, Derek T. Muller

Journal Articles

From the Article

The field of election law, unsurprisingly, focuses on law. But Professor Rick Hasen's book Election Meltdown rightly highlights that law can only take us so far in governing elections. As we think about the problems that persist in our elections, Professor Hasen moves us to think about long-term reforms, which are the best and perhaps only ways to respond to some of our elections' short-term perils. Some of his proposed reforms offer new legal frameworks. But I want to focus on those nonlegal reforms that work alongside the law - places where the law simply runs out, …

Brnovich V. Dnc: Election Litigation Migrates From Federal Courts To The Political Process, Derek T. Muller

Journal Articles

We are in a time of public skepticism over elections. The losing side doubts the fairness of the outcome, attributing the loss to suppression, fraud, foreign influence, or late-breaking changes to laws—some “true reason” outside the legitimate political process why a preferred candidate failed. The winning side is a sour contest or a sore loser away from doubting the legitimacy of the election.

It’s hard to tell whether the sharp rise in litigation over elections is the cause or the effect. Major political parties are spending more money than ever on lawyers and litigation in federal elections, from $7.5 million …

‘‘Appearance Of Corruption’’: Linking Public Opinion And Campaign Finance Reform, Douglas M. Spencer, Alexander G. Theodoridis

Publications

At present, campaign finance regulations may only be justified if their primary purpose is to prevent quid pro quo corruption or the appearance of corruption. References to the ‘‘appearance of corruption’’ are ubiquitous in campaign finance decisions, yet courts have provided very little guidance about what the phrase means. In this article, we report findings from a broadly representative national survey in which we (1) directly ask respondents to identify behaviors that appear politically corrupt, and (2) indirectly measure perceptions of corruption using a novel paired-choice conjoint experiment asking respondents to choose which of two randomly generated candidates are more …

While The Water Is Stirring: Sojourner Truth As Proto-Agonist In The Fight For (Black) Women’S Rights, Lolita Buckner Inniss

Publications

This Essay argues for a greater understanding of Sojourner Truth’s little-discussed role as a proto-agonist (a marginalized, long-suffering forerunner as opposed to a protagonist, a highly celebrated central character) in the process that led up to the passage of the Nineteenth Amendment. Though the Nineteenth Amendment failed to deliver on its promise of suffrage for black women immediately after its enactment, black women were stalwarts in the fight for the Amendment and for women’s rights more broadly, well before the ratification of the Amendment and for many years after its passage. Women’s rights in general, and black women’s rights in …

Freedom Of Association, Extreme Partisan Gerrymandering, Justiciability And The Unmistakable Political Question Controversy, L. Darnell Weeden

Brigham Young University Journal of Public Law

No abstract provided.

Passive Voter Suppression: Campaign Mobilization And The Effective Disfranchisement Of The Poor, Bertrall L. Ross Ii, Douglas M. Spencer

Northwestern University Law Review

A recent spate of election laws tightened registration rules, reduced convenient voting opportunities, and required voters to show specific types of identification in order to vote. Because these laws make voting more difficult, critics have analogized them to Jim Crow Era voter suppression laws.

We challenge the analogy that current restrictive voting laws are a reincarnation of Jim Crow Era voter suppression. While there are some notable similarities, the analogy obscures a more apt comparison to a different form of voter suppression—one that operates to effectively disfranchise an entire class of people, just as the old form did for African …

The Downfall Of "Incumbent Protection": Case Study And Implications, Jeffrey R. Adams, Lucas I. Pangle

University of Richmond Law Review

On January 9, 2019, the United States Court of Appeals for the Fourth Circuit struck down Virginia Code section 24.2-509— Virginia’s long-standing “Incumbent Protection Act” (or the “Act”). The Incumbent Protection Act was the only statute of its kind, and had endured criticism by grassroots commentators. Yet, the Incumbent Protection Act had long evaded scrutiny in the courtroom. Indeed, the Incumbent Protection Act’s courtroom history is labyrinthine, replete with interesting and significant commentaries on party rights, standing, and public policy preference for primaries. In fact, before its eventual demise, it had been implicated in several lawsuits bringing constitutional challenges to …

An Untapped “Arsenal Of Power”: The Elections Clause, A Federal Election Administration Agency, And Federal Election Oversight, Zachary Newkirk

Florida State University Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Martin Luther King, Jr. Lecture - "Give Us The Ballot": Reflections On The Struggle For The Right To Vote In Honor Of The 90th Birthday Of Dr. Martin Luther King, Jr., Brenda Wright

Villanova Law Review (1956 - )

No abstract provided.

Upending Minority Rule: The Case For Ranked-Choice Voting In West Virginia, Matthew R. Massie

West Virginia Law Review

No abstract provided.

Locked Up, Then Locked Out: The Case For Legislative - Rather Than Executive - Felon Disenfranchisement Reform, Amanda J. Wong

Cornell Law Review

A cohesive anti-felon disenfranchisement perspective has gained traction over the last two decades in America. Scholars have harshly criticized disenfranchisement provisions for their insulation and perpetuation of nonwhite marginalization d la Jim Crow. Other critics have also decried felon disenfranchisement for barring prior felons from full social integration. Still more critics point to how disenfranchisement provisions inequitably affect election outcomes. State leaders, recognizing the prevalent attitude against felon disenfranchisement, have taken significant measures to mitigate disenfranchisement laws-for example, some state governors have issued executive orders categorically re-enfranchising ex-felons. These types of actions are the focus on this Note. Certainly, unilateral …

Some Thoughts On Joaquin Ávila, Bill Tamayo

Seattle Journal for Social Justice

No abstract provided.

“We Are Still Citizens, Despite Our Regrettable Past” Why A Conviction Should Not Impact Your Right To Vote, Jaime Hawk, Breanne Schuster

Seattle Journal for Social Justice

No abstract provided.

Remembrance, One Person, One Vote: The Enduring Legacy Of Joaquin Avila, Robert Chang

Seattle Journal for Social Justice

No abstract provided.

Counterfeit Campaign Speech, Rebecca Green

Faculty Publications

We are entering an era in which computers can manufacture highly-sophisticated images, audio, and video of people doing and saying things they have, in fact, not done or said. In the context of political campaigns, the danger of “counterfeit campaign speech” is existential. Do current laws adequately regulate faked candidate speech? Can counter speech effectively neutralize it? Because it takes place in the vaulted realm of core political speech, would the First Amendment stymie any attempt to outlaw it? Many smart people who have looked at the general problem of deceit in campaigns have concluded that the state has no …