Category Archives: Elections

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.

Essay: Racial Gerrymandering’s Questionable Revival

Source: Richard L. Hasen, University of California – Irvine School of Law, Research Paper No. 2015-49, May 8, 2015

From the abstract:
Like history, the racial gerrymandering cause of action has repeated itself, the first time as tragedy, the second time as farce.

In the 1990s, conservative members of the Supreme Court recognized a new cause of action, grounded in the Fourteenth Amendment’s Equal Protection Clause, of an “unconstitutional racial gerrymander.” The claim was not one, long recognized, for the intentional dilution of black votes through the manipulative drawing of district lines. Instead, it was a shaky, ephemeral claim based solely on appearances. Racial gerrymandering is an “expressive harm,” aimed at preventing jurisdictions from sending an impermissible “message” by separating voters on the basis of race without adequate justification. In practice, the cause of action helped limit attempts by the U.S. Department of Justice to force jurisdictions then covered by Section 5 of the Voting Rights Act to create more majority-minority voting districts which tended to vote Democratic. Sometimes doing so helped Democrats; at other times the concentration of reliable Democratic voters helped Republicans. Within a decade, however, racial gerrymandering claims seemed to wither away, as the Court used other methods to stop the Department from reading the Act too broadly.

In 2015, the Supreme Court revived racial gerrymandering claims. In Alabama Legislative Black Caucus v. Alabama, the four liberals on the Court and Justice Kennedy agreed with Democrats and minority voters that the state of Alabama engaged in an unconstitutional racial gerrymander when it passed a legislative districting plan which over-concentrated black voters in majority-minority districts in ostensible compliance with the Voting Rights Act. There was great irony in the use of the racial gerrymandering cause of action by minority voters who had rejected it in the 1990s, in its acceptance by liberal justices, and in the defense of race-based redistricting by Alabama Republicans and some conservative Supreme Court justices. While racial gerrymandering has for now become a useful tool for Democrats and minority plaintiffs to fight certain Republican gerrymanders, it is no more coherent or justified now than it was the first time the Court recognized it in the 1990s.

This Essay, written for an Alabama Law Review symposium on the 50th anniversary of the Voting Rights Act, proceeds in three parts. Part I briefly describes the emergence of the racial gerrymandering cause of action in the 1990s and the critiques made of it. Part II briefly describes the circumstances leading up to the 2015 Alabama case and Court’s questionable revival of the racial gerrymandering claim. Part III argues that the racial gerrymandering claim is no more defensible when used by Democrats or minority voters than by conservatives or Republicans. No doubt the Alabama legislature used compliance with the Voting Rights Act as a pretext to pack more reliable Democratic voters into a smaller number of districts to help Republicans in the state overall. But that behavior should be policed as either a form of impermissible racial vote dilution or as inappropriate partisan behavior. In the end, the Supreme Court has relied upon the incoherent racial gerrymandering claim because lacks the right tools to police certain political conduct which might be impermissibly racist, partisan, or both. Liberal and conservative scholars have long recognized that the Voting Rights Act’s enforcement and interpretation can have partisan implications and motivations. The same is now true for racial gerrymandering claims, especially given the great overlap of race and party categories in the South.

Voter ID Laws: A View from the Public

Source: Paul Gronke, William D Hicks, Seth C. McKee, Charles Stewart III, James Dunham, April 11, 2015MIT Political Science Department Research Paper No. 2015-13

From the abstract:
The proliferation of voter identification laws in the American states has spawned a growing literature examining their effects on participation and the factors conditioning their enactment. In this study we move in a different direction, focusing on public opinion toward these laws. Superficially, it appears that voter ID is a valence issue. Public opinion shows broad support, primarily as a way to safeguard the integrity of the ballot box. We explore this supposed consensus on voter ID, probing the rationales and explanations put forth for requiring strict photo ID. Specifically, we draw upon a battery of questions in the 2014 Cooperative Congressional Election Study (CCES) to determine the degree to which respondents’ attitudes toward voter ID laws are influenced by beliefs about the prevalence of voter fraud, knowledge of existing voter ID laws, and opinions regarding the possible intentions and purposes for photo voter ID laws. Our findings make it evident that although large majorities favor strict photo ID laws, the factors associated with support for these laws vary by partisanship. It is not simply that Republicans strongly favor strict photo ID laws and Democrats are split on the matter. Instead, Republican popular support for strict photo ID laws cuts across virtually all demographic groups, while Democratic support is much more likely to vary as a function of factors such as ideology, education, attention to politics, and racial resentment in the case of white respondents. The partisan division in public opinion over voter ID laws strongly suggests an elite-to-mass message transmission reminiscent of the broader state of polarized party politics.

Black lives matter: Differential mortality and the racial composition of the U.S. electorate, 1970–2004

Source: Javier M. Rodriguez, Arline T. Geronimus, John Bound, Danny Dorling, Social Science & Medicine, In Press, Available online 21 April 2015
(subscription required)

From the abstract:
Excess mortality in marginalized populations could be both a cause and an effect of political processes. We estimate the impact of mortality differentials between blacks and whites from 1970 to 2004 on the racial composition of the electorate in the US general election of 2004 and in close statewide elections during the study period. We analyze 73 million US deaths from the Multiple Cause of Death files to calculate: (1) Total excess deaths among blacks between 1970 and 2004, (2) total hypothetical survivors to 2004, (3) the probability that survivors would have turned out to vote in 2004, (4) total black votes lost in 2004, and (5) total black votes lost by each presidential candidate. We estimate 2.7 million excess black deaths between 1970 and 2004. Of those, 1.9 million would have survived until 2004, of which over 1.7 million would have been of voting-age. We estimate that 1 million black votes were lost in 2004; of these, 900,000 votes were lost by the defeated Democratic presidential nominee. We find that many close state-level elections over the study period would likely have had different outcomes if voting age blacks had the mortality profiles of whites. US black voting rights are also eroded through felony disenfranchisement laws and other measures that dampen the voice of the US black electorate. Systematic disenfranchisement by population group yields an electorate that is unrepresentative of the full interests of the citizenry and affects the chance that elected officials have mandates to eliminate health inequality.

Highlights
• We estimate effects of black excess deaths on the composition of the US electorate.
• Excess mortality reduced the 2004 black voting age population by 1.7 million.
• In 2004, Kerry lost 900,000 votes and Bush lost 100,000 to black excess death.
• Outcomes of 7 senate and 11 gubernatorial races could have been reversed.
• Excess mortality among blacks in the United States dampens blacks’ political voice.

Related:
Black lives matter: premature deaths skew US election results
Source: MacGregor Campbell, New Scientist, May 1, 2015

If Black People Lived As Long As White People, Election Results Would Be Very Different
Source: Samantha Michaels, Mother Jones, May 1, 2015

When Bosses Recruit Employees into Politics – Evidence from a New National Survey

Source: Alexander Hertel-Fernandez, Scholars Strategy Network, Key Findings, April 2015

In 2012, journalists reported that Georgia Pacific, Cintas, and other large companies were sending election campaign endorsements to their workers and predicting job losses or plant closures if favored candidates lost in that year’s election. Are similar efforts by bosses and managers happening in the run up to the 2016 election? Results from a new national survey reveal that one in four American employees has been contacted by his or her boss about politics. Detailed findings suggest the need for reforms to protect a small but significant minority of U.S. workers who are subject to inappropriate political pressures in the workplace….