Category Archives: Elections

The Average Joe’s Proviso

Source: Stanley B. Greenberg, Washington Monthly, Vol. 47 nos. 6/7/8, June/July/August 2015

Surprising numbers of white working class voters will support the Democratic agenda-if Democrats promise to reform the government that would carry it out. …

….Yet the white working-class and downscale voters in our surveys do support major parts of a progressive, activist agenda, particularly when a Democratic candidate boldly attacks the role of money and special interests dominating government and aggressively promotes reforms to ensure that average citizens get both their say and their money’s worth. These findings came out of innovative research conducted in partnership with Page Gardner’s Women’s Voices Women Vote Action Fund and David Donnelly’s Every Voice.

In recent years, too many Democrats have presumed that the white working class is out of the party’s reach and that talk of reforming government and the political process simply does not move voters. My contention is that both of those presumptions are wrong. An agenda of reform is the key to Democrats winning the greater share of white working-class and unmarried women votes that will give the party the majorities it needs to govern…..

Quick and Dirty: The New Misreading of the Voting Rights Act

Source: Justin Levitt Loyola-LA Legal Studies Paper No. 2015-24, March 20, 2015

From the abstract:
The role of race in the apportionment of political power is one of the thorniest problems at the heart of American democracy, and poised to once again take center stage at the Supreme Court this Term. The Court has agreed to hear a case from Alabama involving the Voting Rights Act and the appropriate use of race in redistricting. But though the litigation posture of the case may not make it clear to the Court, Alabama is part of a disturbing pattern. Jurisdictions like Alabama have been applying not the Voting Rights Act, but a hamhanded cartoon of the Voting Rights Act — substituting blunt numerical demographic targets for the searching examination of local political conditions that the statute actually demands.

This short and timely Essay is the first to identify the ways in which multiple jurisdictions in this redistricting cycle appear to have substituted this cartoon of the Voting Rights Act for the real thing. It identifies the racial essentialism at the heart of the demographic shorthand, and contrasts that retrograde approach with the tailored and nuanced law on the books. It then elaborates the constitutional danger of replacing the real statute with the imagined one, and urges courts, including the Supreme Court, to see the cartoon for what it is.

A Price Too High: Efficiencies, Voter Suppression, and the Redefining of Citizenship

Source: Atiba R. Ellis, Southwestern University Law Review, Vol. 43, 2014

From the abstract:
This essay argues that the efficiency assumption in election law coupled with a resurgent preference for state-focused election administration has come to dominate considerations of the right to vote. Analysis of right-to-vote questions tends to turn around a calculus that puts at its center the efficiency of a state-dominated election system is the core interest the Court seeks to protect. This stands in contrast to a focus on the rights and status of the individual voter, especially where an individual voter confronts a voting regulation that fails to expressly deny that person the right to vote. In this sense, as is the case in a substantial amount of modern jurisprudence, this efficiency approach has overtaken the modern debates over election regulation.

This essay explores this issue by tracing the development of voting rights jurisprudence from a laissez-faire position of virtually unfettered deference to state control of the vote to a voter-centric rights-based framework, to a balancing approach that champions the states’ interest in efficiency coupled with the reemergence of deference to state power in regulating voting rights. This essay will then turn to examine whether this doctrinal development is appropriate to the modern rights-related issues concerning voting rights. Ultimately, this essay concludes how this new focus on efficiency is ultimately damaging to the right to vote as it fails to fully encompass how voters are ultimately excluded from the process due to the indirect costs placed on voters as an added mechanism of dissuasion from casting one’s ballot.

The Meme of Voter Fraud

Source: Atiba R. Ellis, Catholic University Law Review, Vol. 63 No. 4, 2014

From the abstract:
The idea that the political system is subject to rampant and invisible voter fraud has animated recent debates over the regulation of elections. Election integrity advocates have claimed that this threat justifies voter identification laws and other laws that have narrowed the ability for some citizens to vote, while voting-rights advocates have claimed that these measures are a form of voter suppression. These legal changes have occurred despite research that has demonstrated that virtually no actual voter fraud (specifically voter impersonation fraud) exists. While the consensus is that these voter suppression initiatives are driven by naked partisanship, this consensus fails to consider how longstanding ideological traditions about voter participation (and their interrelation with race, gender, and class myths) influence the debates over how to adequately regulate the right to vote.

This paper will propose a different theoretical framework to address the voter fraud myth: memetics. This paper argues that the most appropriate way to think about the myth of voter fraud is as a meme. A meme is “an idea, behavior, style, or usage that spreads from person to person within a culture” without regard to the truth or falsity of the idea. Memes spread because the ideas re-enforce the views of the purveyors of the meme and increase the purveyor’s power. In a sense, our memes can program us to accept or explain away ideas and can form the basis of our ideologies.

When viewed as a meme, the voter fraud claim can be analyzed as the latest variation on the ideology of exclusion of the “unworthy” from the franchise. The voter fraud meme replicates through both evoking myths and stereotypes about the worthiness of certain voters and motivates individuals and legislatures to replicate the meme through a belief that the unworthy voter will be a threat to the democratic process. This process of replication has contributed to the passage of voter identification and similar legislation, the popularity of heightened regulation of the voting process, and private acts of voter vigilantism. This account will demonstrate how the meme of voter fraud interferes either intentionally or inadvertently with the democratic value of inclusion and forces policymakers to fail to account for the effects of structural exclusion. Courts, scholars, and policymakers can use the analytic framework offered in this paper to more thoroughly understand the ideological forces behind the meme of voter fraud. This paper concludes by offering a framework by which courts and policymakers can separate the voter fraud meme and other such ideology from fact-driven analysis of right to vote issues.

How States Draw Congressional District Lines

Source: Jennifer Burnett, Council of State Governments, The Current State, no. 23, July 13, 2015
Nearly half of state governments in the U.S. use a process outside of the legislature to draw congressional district lines. A recent decision by the U.S. Supreme Court held that the Constitution’s Elections Clause permits voters to vest congressional redistricting authority entirely in an independent commission.

How States Draw Congressional District Lines

Political Entrenchment and Public Law

Source: Daryl J. Levinson, Benjamin I. Sachs, Harvard Public Law Working Paper No. 15-07, April 19, 2015

From the abstract:
Courts and legal scholars have long been concerned with the problem of “entrenchment” — the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of caselaw and scholarship has focused nearly exclusively on the formal legal rules governing elections, the processes for enacting and repealing legislation, and the methods of constitutional adoption and amendment. This Article demonstrates that political actors also entrench themselves and their policies through an array of functional alternatives. By enacting substantive policies that strengthen political allies or weaken political opponents, by shifting the composition of political community, or by altering the structure of political decisionmaking, political actors can achieve the same entrenching results without resorting to the kinds of formal rule changes that would raise red flags from the perspective of public law. Recognizing the continuity of formal and functional entrenchment thus invites the question of why public law identifies and condemns the former while ignoring or pardoning the latter. Appreciating the prevalence of functional entrenchment also raises a broader set of questions about when impediments to political change should be viewed as democratically pathological and how we should distinguish entrenchment from ordinary democratic politics.

American Plutocracy

Source: Timothy K. Kuhner, King’s Law Journal, Vol. 26 No. 1, 2015

From the abstract:
This essay explores the linkages between economic inequality, political inequality, and money in politics. Said another way, it explores the linkages between Thomas Piketty, Gilens & Page, and campaign finance law. It argues that the U.S. Supreme Court has constructed and justified a new form of government called plutocracy. Campaign finance cases from Buckley (1976) to McCutcheon (2014) contain a series of constitutional principles that serve to increase political inequality and economic inequality. Those constitutional principles also serve as the “apparatus of justification” sought by Piketty, the justifications for inequality that might allow today’s state of affairs to endure. This essay exposes those constitutional principles and their relationship to works by Piketty, Gilens, and Page. It also contains a summary of some key points from my book, Capitalism v. Democracy (Stanford University Press 2014).

Symposium on the Voting Rights Act in the Wake of Shelby County v. Holder

Source: Berkeley Journal of African-American Law & Policy, Vol. 17 no. 2, 2015

Articles include:
Jackals, Tall Ships, and the Endless Forest of Lies: Foreword to Symposium on the Voting Rights Act in the Wake of Shelby County v. Holder
Anthony Paul Farley

Eviscerating the Voting Rights Act and Moral Authority: Freedom to Discriminate Comes with a Price
Patricia A. Broussard

Elimination Dance
Sarah Jane Forman

The Past as Prologue: Shelby County v. Holder and the Risks Ahead
J. Corey Harris

Demography and Democracy
Phyllis Goldfarb

Any Is Too Much: Shelby County v. Holder and Diminished Citizenship
Peter Halewood

Still Fighting after All These Years: Minority Voting Rights 50 Years after the March on Washington
Deborah N. Archer

The Second Reconstruction Is Over
Robert V. Ward Jr.

The Voting Game
Sarah R. Robinson

Setting Congress up to Fail
Magaret B. Kwoka

Electoral Silver Linings after Shelby, Citizens United and Bennett
Ciara Torres-Spelliscy

Shelby County v. Holder: A Critical Analysis of the Post-Racial Movement’s Relationship to Bystander Denial and Its Effect on Perceptions of Ongoing Discrimination in Voting
Abra S. Mason

Legal Post-Racialism as an Instrument of Racial Compromise in Shelby County v. Holder
Pantea Javidan

Post Oppression
Christian B. Sundquist

Frederick Douglass on Shelby County
Olympia Duhart

Preferential Judicial Activism
Sudha Setty

Shelby, Race, and Disability Rights
Ravi Malhotra

Unseen Exclusions in Voting and Immigration Law
César Cuauhtémoc García Hernández

One Step Forward, Two Steps Backward: How the Supreme Court’s Decision in Shelby County v. Holder Eviscerated the Voting Rights Act and What Civil Rights Advocates Should Do about It
Pamela Edwards

The Blinding Color of Race: Elections and Democracy in the Post-Shelby County Era
Sahar F. Aziz

Unmistakably Clear: Human Rights, the Right to Representation, and Remedial Voting Rights of People of Color
Matthew H. Charity

Toward a Fundamental Right to Evade Law? The Rule of Power in Shelby County and State Farm
Martha T. McCluskey

After NFIB v. Sebelius, When Does the Cost of Voting Become an Illegal Poll Tax?
Andre L. Smith

The Post-Shelby County Game
Steven R. Morrison

Backsliding: The United States Supreme Court, Shelby County v. Holder and the Dismantling of Voting Rights Act of 1965
Bridgette Baldwin

On the Repeal of the Voting Rights Act and the Breadth of the Long Counter Revolution
Ifetayo M. Flannery

A Fugitive from the Camp of the Conquerors: The Revival of Equal Sovereignty Doctrine in Shelby County v. Holder
Vik Kanwar

Arc of Injustice: Pre- and Post-Decision Thoughts on Shelby County v. Holder
Janai S. Nelson

Grandpa
Charles Walker

The Path Forward from Shelby County v. Holder
Janet W. Steverson

An “Equal Sovereignty” Principle Born in Northwest Austin, Texas, Raised in Shelby County, Alabama
David Kow

Voter Rights and Civil Rights Era Cold Cases: Section Five and the Five Cities Project
Paula C. Johnson

Unmistakably Clear: Human Rights, the Right to Representation, and Remedial Voting Rights of People of Color

Source: Matthew H. Charity, Western New England University School of Law Legal Studies Research Paper No. 15-6, 2015

From the abstract:
The Author critiques the Supreme Court’s analysis in its Shelby County v. Holder decision, which found the preclearance requirement of the Voting Rights Act unconstitutional by applying a disparate treatment analysis to how States were treated under the Act. Such a reading of the Act makes a number of tacit and explicit assumptions with regard to the choice by the Federal Government and by the States of whose rights governmental actors must protect. The Court reached its conclusion by decontextualizing the Civil Rights movement and the Voting Rights Act from decolonization and post-World War II expressions of human rights, a time in which there was a move toward greater global recognition that the “other” has rights that are enforceable based on recognition of individual human equality.

In this Essay, the Author considers the context of the Fifteenth Amendment and its work in overturning prior jurisprudence that indicated a divorcing of constitutional protections from the African-American population. The Author then turns to the context of the Voting Rights Act of 1965 and the connection between U.S. rights-protective legislation and a global shift toward rights-protective treatises and laws. Then the Author juxtaposes the positivist stance of international law with the current Court’s jurisprudential posture of seeking congressional clarification and justification of rights above all else, even in the context of civil and human rights. Finally, the Author concludes that without positivist interpretations that have permeated U.S. civil rights legislation and jurisprudence in the past, new voting rights legislation can achieve neither its domestic nor global potential.