Election Law in a Nutshell
Author:
Tokaji, Daniel P.
Edition:
2nd
Copyright Date:
2017
18 chapters
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Preface 7 results (showing 5 best matches)
- This nutshell is designed as a resource for students using any of the above casebooks. It should also be of assistance to practitioners, election officials, candidates, legislators, and others seeking to bone up on particular points of election law, as well as those seeking a starting point for legal research.
- The subject matter of this nutshell goes by multiple names. Some call it the Law of the Political Process, others the Law of Democracy. Portions are sometimes taught as a course in Voting Rights or included in Legislation. But the most commonly used name for the field, and the one adopted here, is Election Law.
- Today, the field of Election Law boasts five casebooks.
- The common ground among all of us who study or practice Election Law is our passionate belief in democracy. We want it to work, in the United States and around the world. Of course, there are fierce disagreements about how democracy work, including the proper role of unelected judges in overseeing elections and politics. Without taking a position on these essential debates, this nutshell attempts to introduce them to its readers. I hope you will delve into these questions more deeply—and that you will do your part to help make democracy work better.
- For many years, I’ve been privileged to study Election Law—and occasionally work on voting rights cases pro bono—in Ohio, a quadrennial hotbed of election activity. I thank The Ohio State University, Moritz College of Law, especially Dean Alan Michaels, for generous research support. I owe a debt of gratitude to my colleagues at
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Chapter 1. Perspectives on Law and Democracy 21 results (showing 5 best matches)
- Because much (though certainly not all) of election law is constitutional law, it is important to be aware of the debate over process-based theory. Still, this is just one of several theories of constitutional interpretation that might be brought to bear on election law questions. Others include originalism, rights-based theories, critical race theory, feminism, and economic theories of constitutional interpretation. Different theories will tend to yield different conclusions with respect to the various issues discussed in the remainder of this nutshell.
- Democracy does not exist in a vacuum. It is instead a product of the laws that structure the political process and define the rights of participants. The distinctive characteristics of democracy in the United States—including the dominance of two major parties, the manner in which election campaigns are financed, the representation that different groups enjoy, and even the composition of the electorate—are inextricably tied to the laws regulating elections and politics. This nutshell summarizes that body of law, which includes the United States Constitution, federal statutes, and state laws, as well as judicial decisions interpreting all these laws.
- Under the U.S. Constitution, federal statutes are enacted by the Congress and usually signed into law by the President. Both the members of Congress and the President are chosen by the people through elections. The people therefore do not make federal laws directly but indirectly, through their elected representatives. All the states likewise have legislative bodies that enact state laws, although many state constitutions also provide for “direct democracy,” by which the people may enact laws directly through ballot measures (the subject of Chapter 8). Elections are the means through which citizens choose the officials who occupy certain government positions, including those who make our laws.
- To understand the law governing elections and politics in the United States, it is helpful to be familiar with some basic information regarding its system of government, including core democratic values enshrined in the U.S. Constitution and considered by leading political thinkers. Accordingly, this chapter begins with an overview of the republican or representative system of government in the U.S. It then proceeds to some themes and theories that may be used to frame the study of American election law.
- The political theories described above undergird a major ongoing debate in the field of election law today: whether judicial review should focus on the rights of citizens or, alternatively, on a fair political structure. The rights-versus-structure debate in election law grows out of the broader question of (also known as “representation-reinforcement” theory) argue that judicial review should focus on laws and practices that tend to advantage incumbents and to harm numerical minorities.
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Chapter 7. Election Administration and Remedies 86 results (showing 5 best matches)
- This chapter does not attempt to describe the multitude of state laws and policies governing election administration, nor can any course in Election Law attempt to cover all this material. Instead, it provides an overview of the federal law governing election administration, while summarizing important features of state election laws and the remedies available in challenge challenges to election administration practices. Part A addresses the still-developing federal constitutional law governing election administration. Part B discusses the three most important federal statutes in this area: the Voting Rights Act, National Voter Registration Act, and Help America Vote Act. Part C summarizes the key features of state election administration. Part D discusses remedies available for election errors, including pre-election litigation and post-election litigation seeking to overturn the declared result.
- The laws governing election administration come mostly from state legislatures, subject to the federal constitutional and statutory restraints set forth above. Each state’s election laws and institutions may be thought of as a sort of ecosystem, consisting of many mutually interdependent parts. While it is impossible to capture the variety and complexity of state laws governing election administration, an overview of the key features of state election ecosystems is provided below. As this summary reveals, there are important differences in state laws governing the administration of elections.
- What should courts do when they conclude that an election practice violates federal or state law? The answer depends in part on whether the challenge takes place before or after Election Day. Before elections, the most common remedy against an illegal election practice is an injunction. When pre-election litigation is brought, it may be feasible to issue an injunction against the challenged practice before the election begins. Where that is not possible, a court may in rare circumstances issue an order that an election be postponed until the problem can be fixed.
- Some violations of election law are punishable through criminal sanctions. Although criminal prosecutions cannot cure a violation that has already occurred, they may punish wrongdoers and deter similar violations in the future. Federal law criminalizes conspiracies to deprive people of their constitutional rights, as well as deprivation of constitutional rights under color of state law. , 242. The application of federal criminal law to state election officials was upheld in . Federal criminal laws prohibit various forms of election-related misconduct, including paying people to vote, voter impersonation fraud, voting more than once, voter intimidation, submitting false registration forms, voting by noncitizens or ineligible felons, and registering or voting under a false name or address. States have comparable laws allowing for the prosecution of fraud and other election-related misconduct by election officials, voters, and others.
- Election administration in the U.S. has two distinctive features, which are important to be aware of when studying the law in this area. First, American election administration is extremely decentralized in comparison with other countries. Most of the governing law comes from the states, not Congress, and much authority resides in the hands of thousands of counties and municipalities scattered across the country. This decentralization, along with the absence of data by which to measure election performance, makes it extremely difficult to determine how well election administration is functioning in various jurisdictions. See Heather Gerken,
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Chapter 8. Direct Democracy 28 results (showing 5 best matches)
- To this point, this nutshell has focused mainly on the law governing representative democracy, which involves the election of candidates to public office. This chapter turns to direct democracy, which allows the people to vote directly on proposed laws and the retention of public officials. Part A addresses the history and principal mechanisms of direct democracy—the initiative, referendum and recall—as well as its pros and cons. Part B describes state substantive and procedural requirements. Part C discusses federal constitutional restraints on direct democracy in the states.
- Under what circumstances is pre-election judicial review appropriate? In general, courts will consider challenges to compliance with requirements in advance of an election. The reviewability of substantive challenges is a different matter. Some courts take the position that substantive challenges should not be considered until after the election. See, e.g., . Others will consider challenges to ballot measures that allegedly violate state or federal constitutional law, on the ground that there is no point in having a vote on a measure that is “clearly unconstitutional.” ...measure fails to comply with state substantive requirements for initiatives or referendums (e.g., the single subject rule), and (2) those arguing that the ballot measure’s substantive requirements violate the federal or state constitution. The California Supreme Court differentiates between these two categories, holding that the former type of claim is “susceptible to resolution either before or after the election...
- State laws impose both substantive and procedural constraints on direct democracy. We start with the single subject rule and other state rules limiting the substance of initiatives. Next, we consider the state procedural rules governing ballot propositions, including the qualification process. Finally, we turn to state rules regarding judicial review, including the availability of pre-election review of ballot measures.
- , the Supreme Court struck down Missouri’s initiative. This time, the Court was unanimous although there was disagreement on the rationale. Justice Stevens again wrote the majority opinion, which concluded that Missouri lacked power under the Elections Clause (Article I, Section 4) to disadvantage candidates in this way for failing to support term limits. Such directives could not, in the Court’s view, be deemed a regulation of the time, place, or manner of conducting congressional elections. Missouri’s initiative was an impermissible attempt to “dictate electoral outcomes.” The four justices who had dissented in all concurred in the judgment, although Chief Justice Rehnquist (joined by Justice O’Connor) would have relied on the First Amendment instead of the Elections Clause.
- ’s decision to strike down some provisions of Colorado’s law rested on the interest in protecting the anonymity of petition . The Court rejected a broad challenge to a provision of Washington’s Public Records Act making referendum petitions—including the names and addresses of signatories—subject to public disclosure. The case arose from a referendum petition seeking to stop a state statute expanding domestic partnership rights, including rights for same-sex couples. The petition’s sponsor and some signatories alleged that the state law requiring disclosure of petitions violated the First Amendment. The majority opinion, written by Chief Justice Roberts and joined by five other justices, resolved the case on narrow grounds. It applied the test drawn from campaign finance disclosure cases (Chapter 10.E), requiring a substantial relation between the disclosure requirement and a sufficiently important governmental interest. The ...’s asserted interest in election integrity...
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Chapter 9. Political Parties 44 results (showing 5 best matches)
- Today, state and local government entities administer the primary elections as well as general elections, in which the parties’ chosen candidates run against each other. Single-member districts and presidential elections are largely responsible for our two-party system, as described above. But federal law has played a limited role in regulating political parties, with the conspicuous exceptions of the White Primary Cases (Part B below) and campaign finance laws (Chapter 10).
- Political parties have also asserted the First Amendment to challenge state laws regulating their association with voters in primary elections. In some cases, parties have challenged laws them from associating with voters who are not party members. In other cases, parties have challenged state laws
- emphasized that election laws necessarily impose some burdens on individual voters, so strict scrutiny cannot apply to them all. According to , the “rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” When a regulation imposes a “severe” burden, strict scrutiny applies and the law may only be upheld if narrowly tailored to a compelling state interest. On the other hand, laws that impose only “reasonable, nondiscriminatory
- Political parties play an essential role in democracy. They provide a means by which citizens may organize themselves politically and select leaders who will represent their interests. The structure of election laws plays a significant role in determining the kinds of political parties that develop and their role in the political system.
- , the Supreme Court struck down Ohio’s very early deadline (February 7) for third-party candidates to get on the general election ballot. The Court relied both on the First Amendment right of political association and the Fourteenth Amendment right to cast an effective vote. In , however, the Court upheld a Georgia law requiring that independent candidates obtain signatures from 5% of registered voters in the jurisdiction to get on the ballot. And in , the Court upheld a California law preventing independent candidates from appearing on the general election ballot if they had been registered with a political party in the previous year. While some previous decisions had applied heightened scrutiny, observed that some degree of regulation is necessary to ensure fair, honest, and organized elections. The fact that the law placed a burden on potential candidates seeking to run for office was not enough to show a violation the Equal Protection Clause. But
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Chapter 10. Campaign Finance Regulation 66 results (showing 5 best matches)
- Federal law provides public financing for presidential elections, but not for congressional elections. Like all public financing schemes, it is voluntary; candidates cannot constitutionally be required to accept it.
- Election campaigns cost money, and lots of it. Much of that money is spent on advertising and other communications designed to influence votes on particular candidates or ballot measures. Election-related communications are protected by the First Amendment, as are the contributions and expenditures that fund them. Yet there are serious concerns about the influence that campaign money may have, both on election results and on the decisions that public officials make once elected. For over a century, Congress and other legislative bodies have tried to limit the influence of campaign money on elections and politics. In the past four decades, there have been many Supreme Court decisions considering the constitutionality of campaign finance laws, a number of them striking down federal or state statutes under the First Amendment. Among the most prominent of these decisions is
- regulate the direct spending of money to influence election campaigns. This mode of regulation includes laws imposing a specific dollar limit on the amount that may be spent in support of or against candidates, as well as outright bans on certain entities (such as corporations or unions) spending money to influence elections. As we shall see, the Court has looked with skepticism on expenditure limits.
- This chapter summarizes campaign finance law, including the constitutional restraints on regulation as well as the statutes governing federal elections. It also discusses some state laws, including those providing public financing for election campaigns. Part A provides
- Some jurisdictions have attempted to regulate campaign contributions in other ways. One circuit court upheld a local law restricting the of contributions, prohibiting them more than one year before an election. . But the same court struck down a ban on large contributions in the three weeks immediately preceding an election. . That court had previously struck down a state law restricting the percentage of funding that
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Chapter 3. The Constitutional Right to Vote 13 results (showing 5 best matches)
- The U.S. Constitution does not expressly confer a general right to vote, but instead leaves the regulation of elections to the states and Congress. Qualifications for voting in congressional elections are tied to qualifications for voting in state legislative elections under Article I, Section 2 of the original Constitution and the Seventeenth Amendment. The Elections Clause, in Article I, Section 4 of the Constitution, gives states the authority to regulate the “Times, Places, and Manner” of holding congressional elections, while authorizing Congress to “make or alter such Regulations.” Under the original structure of the Constitution, then, the setting of qualifications and the regulation of elections was left to the states, with Congress authorized to make or alter rules for the conduct of congressional elections.
- Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966)
- was a black citizen of North Carolina whose application for registration was rejected because she refused to submit to a literacy test as required by state law. In upholding this state requirement against a facial challenge, Justice Douglas’s opinion for the Court relied on Article I, Section 2 and the Seventeenth Amendment, which tie the qualifications for voting in congressional elections to qualifications for voting in state legislative elections. The opinion went on to say that literacy and illiteracy were race-neutral requirements for voting.
- A more complicated analysis applies to laws that exclude people from voting based on a lack of interest or “stake” in the community. An early case striking down a prohibition on voting by those believed to lack a sufficient interest is . A Texas statute prohibited members of the armed forces who moved into the state during the course of their service from voting in any Texas election, as long as they remained in military service. Carrington was a U.S. Army sergeant who had moved to Texas, where he owned a home and had started a business. He was stationed in New Mexico, commuting to his Army job from El Paso. Although he resided in Texas, he was ineligible to vote in state elections under the statute.
- , the Court struck down a state law restricting voting in school district elections to those who either (1) owned or leased taxable real property in the district, or (2) had children in the public schools. Plaintiff was a bachelor who lived at his parents’ home in the district; he paid no rent and had no children.
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Title Page 3 results
Outline 13 results (showing 5 best matches)
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Chapter 4. Representation and Districting 22 results (showing 5 best matches)
- ’s equal protection holding was at least partly based on the idea that people should have an “equally effective voice” in elections, so as to ensure “fair and effective representation for all citizens.” Is there a greater principle underlying the one person, one vote cases? If so, should the Court accord heighted to election practices that dilute the representation of certain groups?
- malapportionment of Illinois’s congressional districts. Justice Frankfurter’s plurality opinion stated that the case was beyond the competence of the federal judiciary to resolve, because it was “of a peculiarly political nature.” The opinion noted that Congress had the authority to correct the problem, by virtue of its power to “make or alter” the regulations governing congressional elections, under the Elections Clause (contained in Article I, Section 4 of the Constitution). The most often cited statement from this opinion is Justice Frankfurter’s statement that: “Courts ought not to enter this political thicket.” To do so, the plurality opinion observed, would embroil the court in controversies best left to the political process. Even today, the idea that courts should stay out of the “political thicket” is invoked by those who believe in judicial restraint when it comes to laws regulating elections and politics.
- In the preceding chapter, the focus was on election laws and practices that prevent people from voting, sometimes referred to as “vote denial.” But being able to cast a vote is not the same as casting a meaningful vote, which depends on each person’s vote being aggregated with those of other like-minded citizens. We now shift our focus to practices that weaken the certain groups of voters, commonly known as “vote dilution.”
- each state. That determination, Justice Harlan contended, was left to states in the first instance by the Elections Clause in Article I, Section 4, which gives states the power to prescribe the “Manner” of conducting congressional elections. In addition, Justice Harlan restated Justice Frankfurter’s argument, made in
- matters involving elections and politics. In fact, he wrote the majority opinion in (Chapter 3), which allowed a Fifteenth Amendment challenge to a state law that redrew city boundaries to exclude black voters. Justice Frankfurter’s opinion in
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Chapter 2. The History of Voting Rights in the U.S. 18 results (showing 5 best matches)
- Although voter registration is justified as a means of promoting election integrity, it has sometimes been used to keep eligible citizens from voting. Laws requiring registration in order to vote began to proliferate in the latter part of the Nineteenth Century. White Democrats’ control over registration lists was a critical component of their effort to disenfranchise blacks. Southern election officials extended residency requirements, required periodic registration, and demanded voluminous information, while having considerable discretion to reject registration applications that they deemed insufficient. In the North as well, registration requirements were sometimes used to impede registration by blacks, recent immigrants, and other working-class voters.
- Since the 2000 presidential election, there has been unprecedented attention to the “nuts and bolts” of election administration. That includes voting equipment, voter identification, voter registration, provisional ballots, absentee and early voting, polling place operations, recounts, and contests. All these topics have been the subject of legislation and litigation since 2000. Perhaps the most controversial issue to emerge is whether voters should be required to present government-issued photo identification (like a driver’s license). Supporters argue that a photo ID requirement is needed to prevent voter fraud and increase public confidence. Opponents argue that strict identification laws will impede racial minorities, poor people, and other eligible citizens from voting. Other prominent subjects of controversy include voter registration practices, the period for early voting, and the counting of provisional ballots. These topics are addressed in detail in Chapter 7.
- . In other words, the qualifications for voting in U.S. House elections were tied to state qualifications, a requirement that remains to this day. Direct election for the , by contrast, were not required until the ratification of the Seventeenth Amendment in 1913, with qualifications for voting for that office likewise tied to qualifications for voting in state legislative elections.
- . By 1904, all the southern states had adopted a poll tax. Like literacy tests, these were often expressly justified as a means by which to disenfranchise blacks. Poll taxes also had the effect and sometimes the intent of keeping less affluent whites from voting as well. The Twenty-Fourth Amendment, ratified in 1964, prohibited poll taxes in federal elections. In
- Even after the Civil War, there was considerable resistance to allowing African Americans to vote—not only in the predominantly Democratic South, but also in the North. But the Republican-led national government realized that their continuing hold on power depended on the enfranchisement of African Americans. After Republicans won convincing victories in the 1866 congressional elections, Congress enacted the Reconstruction Act of 1867, which made the enfranchisement of African Americans a condition for readmission of the states of the former Confederacy. The Fourteenth Amendment, ratified in 1868, did not expressly grant the right to vote to African Americans, but it did prohibit the denial of “equal protection of the laws,” as well as abridgement of the “privileges or immunities of citizens of the United States.” After Ulysses S. Grant’s victory in the 1868 presidential election, Republicans—worried about their future electoral prospects—rushed the Fifteenth Amendment through...
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Chapter 6. Minority Representation 23 results (showing 5 best matches)
- any voting changes. This requirement, referred to as “preclearance,” grew out of the experience with recalcitrant southern officials in the years preceding 1965, the year of the VRA’s enactment. Under previous federal laws, the burden was on the United States government to go to court and prove that existing election practices in each offending county discriminated against black voters. This was costly and time consuming. In addition, some federal district judges in the South were resistant to providing relief. And even when the government succeeded in obtaining a federal court injunction against practices used to keep blacks from voting, southern election officials came up with ingenious new ways of disenfranchising them. For these reasons, the rates of black registration and participation increased only slightly in many parts of the South before 1965.
- Once African Americans were allowed to vote in the South, attention turned to other practices that were used to diminish the strength of their votes—that is, to vote dilution. Prominent among the devices used to weaken black voting strength were at-large elections. In an at-large system, all voters throughout a jurisdiction vote for all members of a multi-member body, rather than voting for a representative serving a particular district. For example, in 1966, the state of Mississippi amended its state laws to provide that county boards of supervisors could be elected at large by all qualified ...of this change was to keep blacks from electing a representative of their choice to county boards. Suppose that blacks constituted 40% of the voting population of a county and whites 60% of the voting population. One would expect blacks to win two seats on the board, if the districts were drawn proportionally. But with an at-large election, blacks would be denied any seats on the board,...
- Allen v. State Board of Elections, 393 U.S. 544 (1969)
- In a series of cases after the VRA’s enactment, the Court defined the constitutional standard applicable to claims that a racial minority group’s voting strength is diluted. These cases concerned redistricting plans with multi-member districts or at-large election systems.
- the extent to which voting in the elections of the state or political subdivision is racially polarized;
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Chapter 5. Partisan Gerrymandering 6 results (showing 5 best matches)
- . Arizona adopted an independent redistricting commission to draw its state legislative and congressional districts through a 2000 ballot initiative. Plaintiffs argued that the use of this commission to draw congressional districts violated the Elections Clause in Article I, Section 4 of the Constitution. This clause gives “the legislature” of this state the power to prescribe the “times, places, and manner” of congressional elections, subject to alteration by Congress itself. Plaintiffs’ argument was that this precluded the people of Arizona from transferring this authority to the commission.
- It is often said that, if elections are when voters choose their leaders, redistricting is when leaders choose their voters. This is not far from the truth. Typically, congressional and state legislative redistricting in the United States is handled by state legislatures, usually through a statute that it passes and then must be signed by the Governor. Other states delegate responsibility for drawing districts to a commission that is controlled by one party or the other. In a few states, districting is handled by a commission with some degree of independence from partisan politics. Throughout U.S. history, partisan politicians have used their power to draw district lines so as to benefit themselves and their parties. Gerrymandering refers to the practice of drawing electoral districts or other boundaries so as to advantage one group while disadvantaging another.
- explained that there was a long history of political gerrymanders in the U.S., and that the Constitution provides a remedy: Under Article I, Section 4, Congress may ‘‘make or alter” the rules for conducting congressional elections, including U.S. House districts. Justice Scalia’s plurality opinion proceeded to assert that post-
- Where does the law of partisan gerrymandering stand now? This is not an easy question to answer, given the absence of any majority opinion. It is clear that partisan gerrymandering claims are justiciable. To the extent there was any doubt on the question after . So what law should litigants and lower court justices apply to partisan gerrymandering claims? Perhaps the best view is that the standard articulated in remains the law, because one cannot replace something ( articulated an intent-plus-effect standard for partisan gerrymandering. That opinion represents the narrowest grounds for the result in that case. Thus, in the absence of any consensus on the Court in later cases, it may be viewed as the law on the subject, although the matter is not free from doubt. An alternative view is that the lack of a majority opinion in means that there is no law from the Supreme Court on the subject, leaving lower courts free to develop their own constitutional standard.
- upheld the use of voter-adopted independent commission to draw congressional districts. Justice Ginsburg wrote for the majority, construing the term “the legislature” as used in Article I to mean the power to make laws. The people of Arizona were constitutionally permitted to delegate this power to Arizona’s independent redistricting commission. Chief Justice Roberts (joined by Justices Scalia, Thomas, and Alito) dissented. The dissenters thought “legislature” meant legislature—the entity, not the lawmaking power—and therefore precluded the voters from cutting the legislature out of the congressional redistricting process through a ballot initiative.
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Table of Cases 24 results (showing 5 best matches)
- Allen v. State Board of Elections
- Chicago Bar Association v. State Board of Elections
- Citizens United v. Federal Election Commission
- Coalition for Political Honesty v. State Board of Elections
- Colorado Republican Federal Campaign Committee v. Federal Election Commission (Colorado Republican I)
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Index 60 results (showing 5 best matches)
WEST ACADEMIC PUBLISHING’S LAW SCHOOL ADVISORY BOARD 10 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: November 7th, 2016
- ISBN: 9781634602761
- Subject: Election and Voting Rights
- Series: Nutshells
- Type: Overviews
- Description: Election law is a dynamic and rapidly expanding field that generates enormous public interest. It is also of great practical importance to lawyers and law students, with increasing litigation and many controversial Supreme Court decisions such as Bush v. Gore, Citizens United v. FEC, and Shelby County v. Holder. This Nutshell provides a succinct and thorough description of the law governing elections, the right to vote, and the political process in the United States. The topics addressed include “one person, one vote,” gerrymandering, minority voting rights, ballot access, voter identification, recounts, direct democracy, and campaign finance. The Nutshell covers U.S. constitutional law in these areas, as well as the Voting Rights Act, Federal Election Campaign Act, and other essential statutes. It includes Evenwel v. Abbott, McDonnell v. United States, and other cases from the 2015-16 Supreme Court Term.
