Volume 43, Number 2


THE LAW OF DEMOCRACY AT A CROSSROADS: REFLECTING ON FIFTY YEARS OF VOTING RIGHTS AND THE JUDICIAL REGULATION OF THE POLITICAL THICKET

Franita Tolson

The fiftieth anniversary of the Voting Rights Act of 1965 presents an opportunity to reflect, not only on what the U.S. Supreme Court has done in the area of election law, but also to chart a path for-ward. This symposium issue, which includes contributions from some of the best and brightest scholars in the field, reflects on the aspirations, ideals, and goals of our political system after five decades of meaningful voting rights and political participation. The substantive critiques and proposals presented by each author are especially timely given that we are in the midst of a presidential election year that has forced the average American to confront the question of who we are as a polity. This question encompasses more than just asking who can vote and in what election; it also includes the contested issue of whether the rules and regulations governing our elections lead to the selection of individuals who best reflect our collective political identity.

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A “CHECKLIST MANIFESTO” FOR ELECTION DAY:  HOW TO PREVENT MISTAKES AT THE POLLS

Joshua A. Douglas

Mistakes happen—especially at the polls on Election Day. To fix this complex problem inherent in election administration, this Article proposes the use of simple checklists. Errors occur in every election, yet many of them are avoidable. Poll workers should have easy-to-use tools to help them on Election Day as they handle throngs of voters. Checklists can assist poll workers in pausing during a complex process to avoid errors. This is a simple idea with a big payoff: fewer lost votes, shorter lines at the polls, a reduction in post-election litigation, and smoother election administration. Further, unlike many other suggested election reforms, this idea is likely to gain traction and see actual implementation. That is because the idea is “non-legal” in nature, in that it comes from the private sector and is achievable outside of the political process. Given the structural impediments to legislative or judicial change, non-legal solutions such as the use of checklists are the way for-ward in election reform.

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THE COORDINATION FALLACY

Michael D. Gilbert, Brian Barnes

This symposium piece tackles an important issue in campaign finance: the relationship between coordinated expenditures and corruption. Only one form of corruption, the quid pro quo, is constitutionally significant, and it has three logical elements: (1) an actor, such as an individual or corporation, conveys value to a politician, (2) the politician conveys value to the actor, and (3) a bargain links the two. Campaign finance regulations aim to deter quid pro quos by impeding the first or third element. Limits on contributions, for ex-ample, fight corruption by capping the value an actor can convey to a politician. What about limits on coordinated expenditures? By preventing coordination on large expenditures like television ads, the law turns very useful support into less useful support, reducing the value an actor can convey. But actors can surmount this with more money: $1 million spent on less useful ads can convey a lot of value, often more than smaller amounts spent on very useful ads or contributions. Limits on coordination may also inhibit bargaining, the third element of a quid pro quo, but again, sophisticated actors can surmount this: they can bargain without discussing the substance of any expenditures. So coordination regulations cannot deter much corruption, at least not when wealthy and sophisticated actors are involved, the very actors who cause the most concern. Consequently, coordination regulations may violate the Constitution. This is not because coordinated expenditures do not corrupt but because the regulations do not deter. Solving this problem requires more than a broader set of regulations. It requires confronting a fallacy at the heart of campaign finance: the belief that coordination relates in an operational way to corruption.

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REINING IN THE PURCELL PRINCIPLE

Richard L. Hansen

About a month before the 2014 election, the United States Supreme Court issued a series of four extraordinary orders in election law cases. Without any explanation, the Court: stayed a district court order which would have required Ohio to restore extra days of early voting;  stayed a Fourth Circuit order (partially reversing a district court) which would have restored same-day voter registration and the counting of certain provisional ballots in North Carolina;  vacated a Seventh Circuit stay of a district court order bar-ring Wisconsin from implementing its new strict voter identification law;  and refused to vacate a Fifth Circuit stay of a district court order which would have barred Texas from continuing to use its new strict voter identification law.  The district court, after a trial on the merits, had declared Texas’ law unconstitutional and in violation of the Voting Rights Act.

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RACE, SHELBY COUNTY, AND THE VOTER INFORMATION VERIFICATION ACT IN NORTH CAROLINA

Michael C. Herron, Daniel A. Smith

Shortly after the Supreme Court in Shelby County v. Holder struck down section 4(b) of the Voting Rights Act (VRA), the State of North Carolina enacted an omnibus piece of election-reform legislation known as the Voter Information Verification Act (VIVA). Prior to Shelby, portions of North Carolina were covered jurisdictions per the VRA’s sections 4 and 5—meaning that they had to seek federal preclearance for changes to their election procedures—and this motivates our assessment of whether VIVA’s many alterations to North Carolina’s election procedures are race-neutral. We show that in presidential elections in North Carolina black early voters have cast their ballots disproportionately in the first week of early voting, which was eliminated by VIVA; that blacks disproportionately have registered to vote during early voting and in the immediate run-up to Election Day, something VIVA now prohibits; that registered voters in the state who lack two VIVA-acceptable forms of voter identification, driver’s licenses and non-operator identification cards, are disproportionately black; that VIVA’s identification dispensation for voters at least seventy years old disproportionately benefits white registered voters; and, that preregistered sixteen and seventeen year old voters in North Carolina, a category of registrants that VIVA prohibits, are disproportionately black. These results illustrate how VIVA will have a disparate effect on black voters in North Carolina.

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THE NINETEENTH AMENDMENT ENFORCEMENT POWER (BUT FIRST, WHICH ONE IS THE NINETEENTH AMENDMENT, AGAIN?)

Steve Kolbert

The history of voting rights in the United States has primarily centered on the struggle to enfranchise African-Americans —first after the Civil War, then in the Jim Crow South, and even today in the midst of “the Voting Wars.”  Accordingly, most voting rights legislation, litigation, and literature have focused on race-based barriers to the ballot and on using Fourteenth and Fifteenth Amendment-based tools to break those barriers.  This race-centered focus neglects a substantial population that may face its own barriers to the ballot: women.

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QUICK AND DIRTY: THE NEW MISREADING OF THE VOTING RIGHTS ACT

Justin Levitt

The role of race in the apportionment of political power is one of the thorniest problems at the heart of American democracy, and reappears with dogged consistency on the docket of the Supreme Court. Most recently, the Court resolved a case from Alabama involving the Voting Rights Act and the appropriate use of race in redistricting. But though the Court correctly decided the narrow issue before it, the litigation posture of the case hid the fact that Alabama is part of a disturbing pattern. Jurisdictions like Alabama have been applying not the Voting Rights Act, but a ham-handed 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 Article is the first to survey the ways in which multiple jurisdictions in this redistricting cycle have substituted a rough sketch of the Voting Rights Act for the real thing. It argues that while the actual statute is tailored and nuanced, appropriately calibrated for a millennial approach to race relations, the demographic shorthand has at its heart a profound and pernicious racial essentialism. Replacing the real statute with the imagined one has a detrimental policy impact—but perhaps more sinister, it also creates unnecessary constitutional danger for the Voting Rights Act as a whole. Courts must see the cartoon for what it is.

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RESIDENCY AND DEMOCRACY: DURATIONAL RESIDENCY REQUIREMENTS FROM THE FRAMERS TO THE PRESENT

Eugene D. Mazo

After years of struggle, we no longer require property ownership, employ poll taxes, or force citizens to take literary tests to vote. The franchise is now also open to women, African Americans, and other groups that were previously disenfranchised. However, our states still prevent citizens from voting if they fail to meet a durational residency requirement. The states also impose lengthy durational residency requirements on candidates seeking public office. This Article examines the history of America’s durational residency requirements. It looks at the debates of the framers at the Constitutional Convention, at how state duration-al residency requirements were broadened in response to migration in the 1800s, and at how durational residency requirements were narrowed by the federal government and the Supreme Court in the 1970s. The result left a system in which durational residency requirements impact voters and candidates differently, and in which these requirements differ at the state and federal levels. In most states, durational residency requirements for voters have been substantially curtailed, while they remain on the books for candidates. To show how this impacts politics, this Article examines several high-profile durational residency contests. It also probes whether these requirements may ever be justified in American democracy.

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CONTINGENT CONSTITUTIONALITY, LEGISLATIVE FACTS, AND CAMPAIGN FINANCE LAW

Michael T. Morley

Many of the Supreme Court’s important holdings concerning campaign finance law are not pure matters of constitutional interpretation. Rather, they are “contingent” constitutional determinations: the Court’s conclusions rest in substantial part on legislative facts about the world that the Court finds, intuits, or assumes to be true. While earlier commentators have recognized the need to improve legislative factfinding by the Supreme Court, other aspects of its treatment of legislative facts—particularly in the realm of campaign finance—require reform as well.

Stare decisis purportedly insulates the Court’s purely legal holdings and interpretations from future challenge. Factually contingent constitutional rulings should, in contrast, be more susceptible to future revision. The facts underlying contingent holdings may change, litigants in a later case may present different evidence concerning those facts, social or technological developments may occur, new discoveries may be made, or a later court’s assessments or assumptions concerning those facts may differ. The Court’s campaign finance jurisprudence exhibits the opposite tendency of what theory would predict, however. The Court has proven much more willing to revisit its purely legal interpretations of the First Amendment than its constitutionally contingent holdings.

Many of the Court’s campaign finance rulings pay insufficient attention to the importance of legislative facts. They reiterate holdings of prior cases as if they were pure declarations of law, without recognizing the underlying legislative facts upon which those holdings depend. This can lead future courts to overestimate these holdings’ binding force, over-looking their dependence on certain facts. Several cases also make critical assertions concerning legislative facts without citing support either in the record or from extrinsic sources.

Perhaps the biggest impediment to the effective use of legislative facts in campaign finance cases is the vagueness of the decision rules the Court has crafted to implement the First Amendment in this field. Many of the Court’s doctrines turn on standards—for example, whether an act poses a risk of apparent corruption—that are vague, underdefined, and fail to provide litigants and future courts with sufficient guidance concerning the nature and extent of evidence necessary to satisfy them. Such indeterminacy allows courts to re-solve campaign finance cases based primarily on subjective, ad hoc intuitions and preferences rather than provable legislative facts.

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LEGISLATIVE DELEGATIONS AND THE ELECTIONS CLAUSE

Derek T. Muller

Arizona State Legislature v. Arizona Independent Redistricting Commission might be viewed as a dispute about the control over redistricting, with a heavy emphasis on the perceived problems of and solutions to partisan gerrymandering and incumbent entrenchment.  Or the case might be about the power of the people to wrest control from an unresponsive legislature and pass their own laws via ballot initiative.  But that is not really this case. This Article notes that it is something more nuanced. This case is less about the ballot initiative or about partisan gerrymandering, and more about a delegation of legislative power from the legislature to an unelected agency.

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RESCUING RETROGRESSION

Michael J. Pitts

The Voting Rights Act ain’t what it used to be. After a nearly half-century run of success, the Supreme Court used Shelby County v. Holder to put one of the most seminal provisions of the Act, section 5, into what amounts to a permanent exile. While technically Shel-by County did not slay section 5—it only interred the coverage formula from section 4 of the Act that makes section 5 operative—it seems unlikely section 5 will ever be functional again.

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VOTING IS ASSOCIATION

Daniel P. Tokaji

What is the relationship between the First Amendment right to expressive association and the Fourteenth Amendment right to vote? It’s closer than you probably think. The Supreme Court employs a balancing test in constitutional challenges to a wide variety of election practices, including ballot access rules, blanket primaries, and voter identification. This standard is commonly referred to as “Anderson-Burdick” for the two main cases from which it de-rives, Anderson v. Celebrezze and Burdick v. Takushi.  Recent lower court decisions have applied this test in constitutional challenges to state laws restricting same day registration,  provisional voting,  and early voting.

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