Elections and the Law of Democracy

Core Tenants of Liberalism

1. The basic political equality of citizens

   • Citizens are equal for political purposes

2. Popular sovereignty

   • The leaders derive their right to govern from the people.

3. The Rule of Law

   • Laws are created under prescribed procedures and apply equally to all. Some consider a Constitution that contains the most fundamental laws a key component of this.

4. Normalization of political opposition

   • Opposition is legitimate, free, and expected part of politics. Transfer of political power is typical.

5. A free civil society

   • People are free to form their political opinions without governmental interference and to bring those opinions into the public sphere.

6. A basic package of human rights

   • Both related to participation in the political process but many accounts also include rights that protect the dignity of the person (protection from torture or cruel punishment, slavery, or compulsory religious beliefs)

Election Law

Aspirational Definition: The means by which a society operationalizes its commitment to democratic self-governance

Pragmatic Definition: The means by which we mediate disputes between self-interested political actors

Democratic Universalism vs. Democratic Particularism

Democratic Universalism: Every democracy ought to be committed to the same principles rooted in the Enlightenment era - principles of political equality, individual autonomy, and basic human rights

Democratic Particularism: The history of a country rightly shapes their view of the commitments to the democracy - See Hungary under Orban

Populism

“moralist imagination of politics, a way of approaching the political world that sets a morally pure and fully unified” fictional people against the society’s elites who are seen as corrupt or otherwise inferior

1. Exclusive Claim - “I alone represent the people.”

2. Demonization of elites and targeted out groups

3. Anti-pulralism that bypasses or weakens courts, media, and civil society

Populism is the pathway from liberalism (pure democracy) to illiberalism (pure authoritarianism)

Why does populism resonate?

1. Economic Insecurity

2. Racial Animus or Identity Grievance

3. Alienation & Institutional Distrust

Federalism’s Electoral Role

Article I §4 Clause 1: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Pros: protects liberty by decentralizing power - Argument is that it would be much harder for a single political actor (the President) to commandeer the entire electoral process. However, the counter-argument would be that it is actually easier for an individual actor at the state or local level to do so - See concerns with American model combining partisanship and decentralization on bottom of pg. 962… cons below also touch on this point

Cons: creates vulnerabilities (malfeasance, unequal protections)

Is the United States a liberal democracy?

Hartz: US = blank slate where Enlightenment liberalism could be written onto society

Wood: American Revolution broke significantly with European hierarchies, created a distinctive egalitarian promise

Klarman: The framers were elites. Were they committed democrats or cautious aristocrats?

Constitution = set of compromises - liberal principles grafted onto institutions that protected preexisting status and power

Quintessential Illiberal Compromise - Slavery: The practice institutionalized political inequality at the nation’s founding. The 3/5th Compromise gave slave states disproportionate political power. Many of the most influential presidential elections, Congressional decisions, and Supreme Court decisions likely would not have happened without the 3/5th Compromise skewing political power in the federal government and thereby protecting slaveholder’s interests.

Electoral College: Intent vs. Reality

• Original Intent - Hamilton (Federalist 68): Electors intended to be chosen based on character and integrity and given freedom to choose president they thought was best

• Evolution: electors became pledged agents of parties; parties transformed republican mechanisms into instruments of popularized politics.

Case Law

Ray v. Blair: Elector pledges upheld for selection/qualification

Chiafalo: states may enforce elector pledges via penalties - the institutional historical practice of choosing electors in this manner outweighed the clear intent of the framers

The slow path to Democratization: Popular politics and institutional change

Two Eras of Increasing Democratization: (1) Jacksonian Era (2) Progressive Era

1. Jacksonian Era: Extended suffrage by removing property qualifications; legacy complicated by clear illiberal bent (populist leader who ignored judicial order in displacing the Native Americans on the Trail of Tears)

2. Progressive Era: 17th amendment

Guinn v. United States (1915)

Holding: Ruled tha Oklahoma’s grandfather clause was violative of the 15th amendment

Rule: 15th Amendment prohibits both direct and indirect racial discrimination in voting. States cannot evade it through facially neutral maneuvers.

Lane v. Wilson (1939)

Holding: Oklahoma’s five-day period for non registered voters to register unlawfully disenfranchised black voters in violation of the 15th amendment

Rule: If the operation of a law clearly functions to exclude black voters, it is violative of the 15th Amendment, even if facially neutral.

The Voter

The source of all authority within and the intended beneficiary of democratic systems of government

What are ways to influence the government other than voting?

1. Physical force or (threat of) rebellion

2. Economic Power (financial contribution)

3. Mass action - lobbying, letter writing

4. Social media, traditional media

Minor v. Happersett

Holding: Upheld Missouri’s disqualification of the right to vote to a woman

Rule: Voting is not a privilege or immunity of citizenship

Reasoning:

1. Federalism: The Constitution defers to the states on the matter of voting. There are no United States voters, only voters of individual states.

2. Historical Argument: The states, before the Constitution, have long excluded many citizens from voting. This was not seen as inconsistent with citizenship.

Citizenship and Voting - Territories vs. the States

The Supreme Court has strongly suggested that non-citizens do not have the right to vote - Sugarman v. Dougall (1973)

Adams v. Clinton (2000) and Castanon v. United States (2020): Congress are empowered to provide voting congressional representation for residents of DC through statehood or constitutional amendment. This is not the role of the courts.

Residents of U.S. territories and DC are denied the right to vote in congressional and presidential elections.

Constitutional Support: The electors of the electoral college must come from the STATES.

Qualifications Based on Competence: Literacy

Lassiter v. Northampton County of Elections: upheld the use of literacy tests reasoning that literacy is rationally related to a legitimate state purpose (ensuring that voters can read the materials informing them about the candidates and the issues)

U.S. v. Louisiana: struck down the use of literacy tests as applied due to their discriminatory application against black voters rendering them violative of the 15th Amendment

Section Five of the 14th Amendment: This granted Congress the power to “enforce, by appropriate legislation, the provisions…” of the amendment.

Section Four of the Voting Rights Act: This act banned the use of literacy tests nationally.

Katzenbach v. Morgan: Upheld Section Four of the VRA reasoning that it was a proper use of Congress’ power under the 14th Amendment to prohibit a tool of intentional racial discrimination

Qualification Based on Mentally Competence and Citizenship: United States vs. International Approaches

Mentally Incompetents: The approaches vary among the states. However, the vast majority deny the right to vote such individuals, Oregon being a notable exception. In contrast, many other democracies and international norms favor facilitation and support over categorical disenfranchisement.

Aliens: Sugarman v. Dougall heavily suggested that non-citizens do not have the right to vote. However, some state constitutions are more permissive than the federal standard, and some cities have granted suffrage to non-citizens - DC, New York, Chicago (school board elections)

Qualifications Based on Wealth - Poll Taxes

24th Amendment (1964): Outlawed the use of poll taxes in federal elections

Harper v. Virginia Board of Elections (1966)

Facts: State rather than federal election - not outlawed by the 24th Amendment

Holding: Struck down the use of poll taxes in state elections

Rule: The use of poll taxes in state elections is invidious discrimination violative of the 14th Amendment’s EPC.

Reasoning: “Wealth, like race, creed, and color is not germane to one’s ability to participate intelligently in the electoral process.”

Justice Harlan’s Dissent: (1) Such tactics weed out the uninterested; (2) people with more property are more responsible and thus more qualified to vote.

In fairness, he was arguing that it was not the court’s role to make a normative argument against poll taxes when there are plainly legitimate reasons (other than pure animus against poor people or as a pretext for racial discrimination) for poll taxes. He felt that this was judicial overreach emboldened by the 24th Amendment, which should not influence the Court.

Qualifications Based on Criminal Record: Felony Disenfranchisement

Four Options: (1) Permanent Disenfranchisement; (2) Disenfranchisement while Incarcerated; (3) Disenfranchisement while on probation or parole; and (4) No Disenfranchisement

Option One → 11 (In some of these states, ~1 in 13 residents are permanently disenfranchised. They are disproportionately people of color.).

Option Two → 21

Option Three → 16

Option Four → 2 (Maine & Vermont)

Richardson v. Ramirez

Holding: Upholds California’s lifetime disenfranchisement of felons

Rule: Cites §2 of the 14th amendment - explicit textual sanction for felon disenfranchisement

Hunter v. Underwood: 

Holding: Felon disenfranchisement provision in the Alabama Constitution was struck down as violative of the 14th Amendment’s EPC

Reasoning: Identified crimes more commonly committed by black people and made those result in permanent disenfranchisement.

Distinction from Richardson: Even though there is a clear textual basis for felony disenfranchisement, such laws are still violative of the 14th Amendment if they have a discriminatory purpose.

The United States is the only Western nation allowing permanent disenfranchisement for felony convictions.

Principles of Representation

Overarching Question: Should a representative merely implement the wishes of their constituents? Or, should they exercise their own independent judgment and discretion?

Principles of Representation

• Authorization: Representative acts with authority granted by constituents - consequences borne as if by constituents themselves

• Descriptive Representation: Legislature reflects the composition of the population - should “think, feel, reason, and act” like constituents

• Agency/Delegate: Acts as an agent for constituents following their instructions or expressed interests

• Trustee: Exercises independent judgment in the public interest, even if contrary to constituent wishes

• Representing General Interests: Advocates for what’s best for the nation after reasoned deliberation

• Representing Particular Interests: Advocates for the specific interests of their constituency

• Promissory Representation: Legislator acts based on promises made during campaign

• Anticipatory Representation: Legislator acts in such a way to secure reelection in the next election

• Gyroscopic Representation: Ideally, there is perfect overlap in beliefs and values between the represented and the representative, meaning the rep. will act in accordance with constituency without the need for external reward

• Surrogate Representation: Representative “represents” those even if not technically a part of their constituency due to shared religion, race, political philosophy, etc.

Key Quote (advocating for trustee model): “A flatterer you do not wish for” - Edmund Burke

Reynolds v. Sims (1964)

Facts: Alabama’s senate districts were drawn based on geography rather than population - grants rural voters significantly more power than urban voters

Holding: Violation of the 14th Amendment’s EPC

Rule: One Person One Vote Principle - State legislative districts must be roughly equal in population (10% for state elections; <10% in Congressional elections)

Reasoning: “Legislators represent people, not trees or acres.”

Political Impact: States across the country were required to redraw legislative districts. This shifted political power from rural to urban areas.

Legal Significance: The decision expanded protections to state apportionment. It also reinforced judicial authority to review electoral fairness.

Ongoing Relevance: This is the foundation for challenges to gerrymandering and districting practices.

Gerrymandering

Efforts to redraw districts to discriminate against political or racial groups

Strategies of Vote Dilution - Map Drawing

Packing: Concentrate opponents into a few districts

Cracking: Spread opponents across many districts to prevent majority

Stacking: Combine districts or shift to an at-large scheme (This is helpful where there is a minority that is able to select their preferred candidate - shifting to at-large allows majority to consistently defeat minority preference).

Kidnapping: Two incumbents are placed in the same district

Considerations when Drawing Districts

1. Compactness: Shape of a district - circle or square > irregular shape

2. Contiguity: Requirement that the district not be separated (ability to travel from any one point in the district to another without entering a different district)

3. Political Subdivision Boundaries: Keeping counties, cities, wards, precincts, etc. part of the same district for voting purposes - similar to respect for communities of interest

4. Geographic boundaries: Mountain ranges, rivers, etc. - also related to respect for communities of interest

5. Communities of interest: Value in keeping groups together that share common economic, social, cultural, or religious bonds

6. Nesting: Creating two lower chamber (State House) districts within one higher chamber (State Senate) - makes map “cleaner” and promotes administrative convenience

7. Partisanship: (In reality, the most compelling consideration… partisan gerrymandering ruled non-justiciable in Rucho v. Common Cause)

8. Incumbency: Political parties may agree (collude) to draw political parties to maintain the current partisan balance to maintain their power.

9. Competitiveness: This is in contrast to drawing districts based on partisanship or incumbency. Drawing districts based on competitiveness is supported on notions of greater sensitivity to voters’ interest (unlike drawing based on incumbency) and decreased polarization stemming from the need to appeal to the median voter

10. Core Retention / “Least Change” Plans: Consistency with previously drawn maps to maintain “representational continuity and accountability” - critiqued as a form of incumbency protection

11. Minority Representation: Maps drawn to enhance or undermine the representation of a minority group (race, ethnicity, language, religion. etc.)

Constraints on Drawing Districts

Constitutional Constraints - Federal

1. Reynolds v. Sims

   • establishes One Person One Vote principle

2. 14th Amendment’s Equal Protection Clause

   • prohibits intentional racial discrimination in voting

3. Shaw v. Reno

   • Held that racial gerrymandering was violative of the 14th Amendment’s EPC - Race cannot be the “predominant factor” in drawing a district unless it is narrowly tailored to the compelling interest in complying with the VRA (Bethune Hill)

4. Rucho v. Common Cause (removed a potential constraint)

   • Held that partisan gerrymandering is non-justiciable

Statutory Constraints - Federal

1. Section Five

   • pre-clearance requirement for covered jurisdictions - gutted by Shelby County v. Holder

2. Section Two (amended in 1982)

   • Bars intentional and unintentional racial vote dilution

Legal Constraints - State Law

1. Partisan Gerrymandering - Justiciability?

   • In contrast to the Supreme Court, some states have held that partisan gerrymandering is justiciable. [North Carolina has held it to be non-justiciable). In many states, there are at least some required or prohibited factors to guide the drawing of maps. However, the State Legislature (in the traditional model) retains significant discretion to weigh the factors and draw maps how they see fit. Required considerations that may provide a basis for a state-level challenge include…

     • Compactness

     • Contiguity

     • Respect for political subdivisions

     • Nesting

     • Core Retention

     • Competitiveness

2. Districting - Methods to Prevent Partisan Gerrymandering

   • Civil Servant

     • Nonpartisan group draws the maps → Legislature adopts or rejects

   • Independent Commission

     • Draws maps based on statutory criteria

   • Legislature with Judicial Approval

     • Legislature draws maps based on statutory criteria → sent to courts for approval

   • Bipartisan Commission

     • Equal party representation with public-interest tiebreaker

   • Legislative + Public Input & Transparency

     • Legislature retains map-making power but public is invited to submit plans - process is open and transparent

Partisan Gerrymandering

When those in power to draw plans, use that power to advantage their own party or disadvantage their opponents

Challenges

1. Mapmakers usually know the partisan proclivities of their voters, so it is difficult to eliminate entirely.

2. Single member district systems with plurality voting rarely produce proportional representation.

#2 is a feature of a winner-take-all system as opposed to a PR system. It is theoretically possible for a state that is 51% Republican and 49% Democrat having a State Legislature that is entirely Republican if every district had a very narrow majority. While this would be extreme, this feature would play itself out even in the absence of partisan gerrymandering.

Gaffney v. Cummings (1973)

Facts: Challenge to districts in Connecticut’s General Assembly

Holding: Upholds Connecticut’s bipartisan gerrymander

Rule: The Constitution does not categorically prohibit taking politics into account in districting.

Pre-Rucho Cases

Davis v. Bandemer (1986): Partisan gerrymandering might be unconstitutional if the electoral process is arranged in a manner that will consistently degrade a voter’s or a group of voter’s influence on the political process as a whole. Such a finding … must be supported by…

1. Evidence of a continued frustration of the will of the majority of voters OR

2. Effective denial of a minority of voters of a fair chance to influence the political process as a whole.

Badham v. Eu (1989): California’s extreme democratic gerrymander was upheld - chief example of the high bar set in Bandemer - “too permissive and difficult to meaningfully operationalize”

Vieth v. Jubilier (2004):

Holding: Upheld the partisan gerrymander (Kennedy was the tie breaking vote)

Rule: Partisan gerrymandering is justiciable.

Kennedy’s Tie Breaking Vote: Continued to hold such claims justiciable but urged development of a standard

Three Approaches in Dissent (would have struck down the gerrymander)

1. Stevens (Predominant Factor): Partisanship cannot predominate in district drawing

2. Souter & Ginsburg (Burden Shifting Approach): Plaintiffs must prove disregard of traditional districting principles and correlation with partisanship. If prima facie case is successful, the state must rebut with non-partisan justification.

3. Breyer (Minority Entrenchment): Totality of the Circumstances test focusing on majority party’s failure to gain a majority of the seats with no neutral explanation for the plan

After Vieth and Before Rucho: Social scientists sought to create a standard, but no particular standard emerged from the lower courts.

Rucho v. Common Cause (2019)

Facts: Challenge to North Carolina and Maryland’s congressional districting plans

Rule: Partisan gerrymandering is a non-justiciable political question.

Reasoning: Adopts Scalia’s reasoning in Vieth. Partisanship is an inextricable part of the districting process, and there is no administrable standard to determine partisan fairness. Any other result would be an inappropriate intrusion into “one of the most intensely partisan aspects of political life.”

Kagan’s Dissent: Lower courts are trying to “identify profound unfairness.” Ruling that partisan gerrymandering is justiciable does not require parsing out the exact bounds of what is fair and what is not fair.

Voting Rights Act - Sections 4 and 5

Section Four: Formula for Covered Jurisdictions

• Criteria: Covered any jurisdiction that…

  • Employed a voting test or device (such as a literacy test) AND

  • Had voter turnout below 50% in the 1964 election

• Bailout Provision: permitted after 10 years without violations

• Congressional Intent: Plainly intended to cover most of the South but swept in other jurisdictions as well

Section Five: Pre-clearance Process

• For covered jurisdictions, this section prohibited any change in voting qualifications, procedures, or standards without first obtaining obtaining approval from a federal court or the US attorney general

• A proposed change ought be approved only if the proposed change does not have the purpose nor the effect of abridging the right to vote on account of race.

Beer v. United States (1976)

Rule (Retrogression Standard): A covered jurisdiction is entitled to implement a proposed change in its election laws if a change will not make a racial group worse off than it was under the laws in place before the change.

Reasoning (1-2-3): There was only one majority-minority district under the current districting. The State Legislature changed the map to have two such districts. A challenge to the map argued that there could and should have been three such districts. The Court held that the state is not required to maximize minority influence.

Georgia v. Ashcroft (2003)

Holding: Upheld redistricting plan that reduced minority percentages in majority-minority districts

Rule: Interpreted VRA to allow for tradeoffs between control and influence districts as well as influence in legislature as a whole

South Carolina v. Katzenbach (1966) → Shelby County v. Holder (2013)

Upheld Section Five of the VRA multiple times in between these two decisions - different perspectives regarding Congress’ ability to pass legislation pursuant to §5 of the 15th Amendment

Rational Basis Test - Katzenbach: Federal legislation will be upheld so long as the means are rational and the ends are legitimate.

C/P Test - Shelby County: The use of the 15th Amendment is remedial meaning that the proposed remedy must be congruent and proportional to the harm that Congress intends to redress.

Shelby County v. Holder (2013)

Facts: Shelby County was a covered jurisdiction and sued the AG arguing that Sections 4(b) and 5 of the VRA were unconstitutional. Despite Congress reenacting the VRA multiple times at the time of its expiration, the coverage formula had not been changed.

Holding: The relevant sections of the VRA are unconstitutional.

Rule: The use of the 15th Amendment is remedial meaning that the proposed remedy must be congruent and proportional to the harm that Congress intends to redress.

“Legislative measures not otherwise appropriate could be justified by exceptional conditions.” However, “the act imposes current burdens and must be justified by current needs.”

Reasoning:

1. Textual

   • Constitution grants to states the power to regulate elections.

2. Structural

   • The VRA “sharply departs” from basic principles of federalism and state sovereignty.

3. Equal Sovereignty

   • The VRA treats states vastly differently on the basis of whether they are deemed a “covered jurisdiction.”

4. Justified by Current Conditions

   • Voter turnout in the covered jurisdictions has approached parity.

   • If the Court accepted the argument that this is because of the now-stricken portions of the VRA, then the Court would be forced to uphold the VRA in perpetuity regardless of the current conditions.

Ginsburg’s Dissent: Court misapplies equal sovereignty doctrine which should only apply to the terms on which states should be admitted into the Union

Impact of Shelby County - Rise of Second-Generation Voting Dilution Methods - proliferation of voter ID laws. Further, it is the best example of the current court’s view that race-based remedies need to be time-bound.

History of Racial Vote Dilution Cases (pre-VRA → Gingles and Shaw)

15th Amendment Claim (Pre-VRA): Gomillion v. Lightfoot (1960): Struck down Tuskegee’s racially gerrymandered maps intended to exclude black voters as violative of the 15th Amendment. There was clear discriminatory purpose. The difficulty today is that no legislators are going to openly proclaim that the purpose of a districting decision is to disenfranchise black voters.

Broad Standard for Discrim. Effect Claim (§2 of the VRA) → White v. Register (1973): The plaintiff must show that the political processes leading to nomination or election were not equally open to participation by the group. Its members had less opportunity than did other residents to participate in the process and elect candidates of the choice.

Requirement of Discriminatory Purpose and Effect → Mobile v. Bolden (1980): The Court adopts the Feeney standard - the plaintiff must show both discriminatory purpose and effect, very hard to prove intent.

VRA Amendment (1982): The VRA statutorily overturned Mobile v. Bolden dictating that it a successful vote dilution claim under the §2 of the VRA does not require a showing of discriminatory purpose. However, this does not mean that voters are entitled to proportional representation (Dole Compromise Proviso).

Thornburg v. Gingles (1998): Two-Part Analysis → (1) Three Gingles Preconditions; and (2) Application of the Senate Factors

Shaw v. Reno (1993): Race cannot be the predominant or sole reason for drawing a district in a particular manner.

Vote Denial vs. Vote Dilution

Vote Denial: People are impeded from having their votes counted (poll taxes, literacy tests, grandfather clauses, white primaries, etc.)

Vote Dilution: The weight of a particular group’s vote is diminished (malapportionment, at-large elections, gerrymandering, etc.)

Types of Minority Districts

Majority-Minority Districts: Minority makes up greater than 50% of the population

Influence Districts: Minorities make up a sizable percentage of the population such that they can sway an election but less than 50% of the population

Coalition Districts: Minority population is not as sizable but proven history of collaboration with non-minority voters to elect candidates

Brnovich v. DNC (2021)

Facts: DNC challenged Arizona voting laws requiring in-person provisional ballots be cast in correct precinct and prohibiting most third parties from delivering mail-in ballots

Holding: Upheld voting regulations 6-3

Rule:

• Statutory Interpretation of VRA §2 - Voting laws cannot discriminate on the basis of race + 1982 amendment that such analysis requires “consideration of the totality of circumstances in each case and demands proof” that the electoral processes “are not equally open to participation.”

• “Totality of the Circumstances” Factors

  • Size of the burden imposed by the voting rule

  • Departure from standard practice in 1982 - If law was in place when §2 was amended in 1982, there is a presumption in favor of its validity.

  • Size of racial disparities

  • Opportunities provided by voting system as a whole

  • Strength of the state’s interest (voter fraud = “strong and entirely legitimate state interest”)

Kagan’s Dissent: (1) Critiques the Majority’s creation of a Five-Factor test rather than relying on the text and aims of the §2 of the VRA (focus on discriminatory intent and disparate impact); and (2) The voting laws disparately impacted people of color, especially Native Americans.

Impact:

1. It will be harder to challenge voting practices that were established in 1982.

2. The five-factor test grants judges significant discretion.

Distinction from Vote Dilution Cases (Gingles): While this claim was also brought pursuant to §2 of the VRA, the challenge is related to burdens placed on voting, not vote dilution. Further, the analysis (factors applied) are different than in vote dilution cases in which you apply the Gingles preconditions and the Senate factors.

Thornburg v. Gingles (1986) → Allen v. Milligan (2023) → Louisiana v. Callais (2026)

Allen v. Milligan (2023): The majority opinion written by Chief Justice Roberts refused to disturb settled law in upholding the use of the Gingles factors.

Louisiana v. Callais (2026): Three Possible Pathways regarding §2 of the VRA.

1. Revive Bolden: The Court can bring back the intent requirement set forth in Mobile v. Bolden requiring discriminatory purpose for a successful vote dilution claim.

2. Strike Down §2 of the VRA: The Court could strike down §2 of the VRA entirely holding that the use of race in districting is odious and violative of the 14th Amendment’s equal protection clause (based on Reno v. Shaw) and potentially the 15th amendment claim as well.

3. Revise Third Gingles Factor: The Court could revise the Gingles standards that have the effect of making discriminatory effect claims practically non-justiciable. This would require plaintiffs to prove that the majority bloc voting is because of race as opposed to party affiliation.

Political Parties - Election Law Tension

Are political parties…

1. Private associations with First Amendment rights? OR

2. State Actors where the 14th and 15th Amendments apply?

Why do we have two major political parties and what is the role of minor parties in our current system?

Duvenger’s Law: Obtaining a majority (more than 50%) is sufficient for election. Parties in a PR system are not faced with this binary. They can start with a small coalition and build from there while still having representation even if they are relatively small. In our system by contrast, parties must win a plurality and are therefore incentivized to “appeal to the widest possible spectrum of voters” to gain a majority.

Role for Minor Parties: The power of the major parties allows them to adopt popular minor party policy positions to attract the minor party’s supporters.

White Primary Cases

Each case involved a policy that was struck down as violative of the 15th Amendment’s prohibition on racial discrimination in voting.

Smith v. Allwrigtht (1944)

Facts: Texas Democratic Party limited membership to whites.

Holding: violative of the 15th amendment

Rule: When the state makes primaries an official, indispensable part of selecting public officials, party rules = state action.

Reasoning: This practice prohibited black voters from participating in primaries. The primary vote was an essential part of the state-run election machinery.

Terry v. Adams (1953)

Facts: Jaybird Association = private, whites'-only pre-primary group. Jaybird winner was always the Democratic nominee.

Holding: Violative of the 15th Amendment

Rule: If a private group effectively selects public officials, constitutional constraints apply.

Reasoning: Even though the Jaybirds were a private organization, the group effectively picked the public officials as the Democratic nominee always won. 

Factors Contributing to State Action (as demonstrated above)

1. State Law

   • Delegation of responsibility to private organizations (Allwright)

   • State control of the primary process or implicit state sanction (Allwright & Terry)

2. Role of the Primary in the Electoral Scheme

   • Substantial political effects (Terry)

Methods of Campaign Finance Regulations

1. Contribution Restrictions

   • Restricts the amount that may be given to a candidate, party, or PAC

2. Spending/Expenditure Restrictions

   • Restricts the amount an individual or group may spend in support of or opposition to a candidate

3. Disclosure

   • Requires candidates, parties, and other groups to track and report contributions/expenditures

4. Public Financing 

   • Gives public money to qualifying candidates

5. Source Restrictions

   • Corporations, unions, political parties, interest groups, etc.

Values For and Against Campaign Finance Regulations

Values For Campaign Finance Regulations

1. Prevention of corruption or the appearance of corruption 

2. Avoidance of conflict of interest

3. Promotion of equality

4. Promotion of competitive elections

5. Protecting Candidates’ Time

6. Disclosure Requirements → Informing the Electorate

Values Against Campaign Finance Regulations

1. Threat to Liberty and Autonomy

2. Infringement on political association

3. Disclosure Requirements → Invasion of Privacy

4. Anti-competitive Effects

5. Time spent fundraising

6. Weakening of political parties

7. Degradation of political discourse

The Four Horseman of the Campaign Finance Apocalypse

Buckley v. Valeo (1976): ONLY APPLIES TO INDIVIDUALS, NOT CORPORATIONS.

1. Expenditure limits and Contribution limits to candidates own campaign → SS

   • “Narrowly tailored to achieve a compelling governmental interest”

2. Contribution limits → Buckley scruinty

   • “Must be closely drawn to sufficiently important state interests”

3. Parties Campaign Finance Rules

   • Contributions → Buckley scrutiny

   • Expenditures → SS

   • Coordinated Expenditures → Buckley Scrutiny

Austin v. Michigan Chamber of Commerce (1990): Upheld ban on corporate contributions and expenditures in candidate races

McConnell v. Federal Election Commission (2003): Upheld BCRA’s restrictions on soft money and electioneering communications (issue ads)

Citizens United v. FEC (2010): EXTENDS BUCKLEY RULE REGARDING INDEPENDENT EXPENDITURES TO CORPORATIONS

1. Expenditure Limits → SS

   • “Narrowly tailored to achieve a compelling governmental interest”

1. Contribution Limits

   • Corporations cannot contribute directly to political candidates. This has been banned federally since 1907.

The New Soft Money: Individuals and corporations now give money to Super PACS and nonprofits.

Differing Views of Corruption - Campaign Finance Case Law

Austin v. Michigan Chamber of Commerce (1990): “The corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”

Citizens United v. FEC (2010): “The appearance of influence or access” of corporations on the political process “will not cause the electorate to lose faith in our democracy.” Even though corporations can spend money to persuade, people nonetheless have the ultimate influence over election outcomes. Narrows definition of corruption to include only quid pro quo contribution transactions - rejects the anti-distortion principle in Austin.

Citizens United v. FEC (2010) - Steven’s Dissent: Corruption is not limited to quid pro quos, but also includes access and influence.

Equality as a State Interest - Campaign Finance Case Law

Buckley v. Valeo (1976): “The concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

Citizens United v. FEC (2010): Affirmed Buckley holding that equality is not a legitiatmte justification for campaign finance regulations

Campaign Finance Regulations and First Amendment Rights - Campaign Finance Case Law

Buckley v. Valeo (1976): “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quality of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”

Current Campaign Finance Federal Laws and Constitutional Standards

• Expenditure Limits: restrict the amount that may be spent for or against a candidate.

  • Must be narrowly tailored to compelling interest.

  • Equality isn’t a compelling interest.

  • Limits on Independent expenditures, whether coming from individuals, corporations or other groups, will be subject to strict scrutiny and likely struck down.

• Contribution Limits: restrict the amount that may be given to a candidate, party, or PAC.

  • Must be closely drawn to sufficiently important interest.

  • Corruption is sufficiently important, equality isn’t.

  • Coordinated expenditures = contributions

  • Federal law limits individual contributions to $3300, prohibits corporate contributions

• Public Financing: gives public money to qualifying candidates.

  • Strict scrutiny if there’s a substantial burden (penalty) on speech.

  • Equality can’t justify burdens.

• Disclosure: requires documentation and reporting of contributions and expenditures.

  • Must be substantial relation to important interest.

  • Informing public is an important interest.

  • Disclosure limits upheld, absent substantial probability of threats, harassment, or reprisals.

  • Federal law requires disclosure of contributions and expenditures in federal elections.

Why does election administration matter?

1. Burdening the Right to Vote: Regulation governing polling places and the casting of ballots can implicate the right to vote by burdening the exercise of that right - Brnovich v. DNC

2. Relationship Between Procedure and Substance: Procedural choices often have substantive consequences. In some circumstances, such choices may even be “outcome-determinative.”

Choices Made by Election Administrators

• When should elections be held? Over what period?

• How should ballots be designed?

• Where should votes be cast?

• By what method should voters cast votes?

• How many polling places should be created and staffed? How long should they be open?

Gould v. Grubb (1975)

Holding: Mandating that the incumbent in a race be listed first was a violation of the EPC in the 14th Amendment

Bush v. Gore (2000)

Constitutional Reminder: While states are limited by the requirement that states have a Republican form of government, there is no constitutional right to vote. However, the 14th Amendment’s Equal Protection Clause prohibits election laws that are arbitrary or inconsistent. - Reynolds v. Sims (malapportionment) + Harper v. Virginia Board of Elections (poll taxes)

Facts: Florida was initially given to Bush… Gore sued arguing there must be a recount. The “hanging chads” resulted in uncertainty and a recount was ordered by the District Court.

Issue: Whether the process for determining voter intent was “arbitrary and inconsistent”

Holding: Held that the recount should stop and the initial result upheld - procedures are arbitrary and inconsistent and therefore violative of the EPC clause of the 14th Amendment.

Rule: Equal protection requires equal weight to each vote and equal dignity to each voter, prohibiting “arbitrary and disparate treatment.”

Reasoning: The procedures for how the voter’s intent was to be determined was extremely inconsistent from team to them. Further, the Florida Supreme Court’s decision did not determine who would count the votes. Important to the state’s decision was that there was not enough time for the recount to proceed by the “Safe Harbor” Electoral College deadline.

Dissent - Breyer & Souter: agrees that there is an EP concern but would allow recount to proceed. The majority emphasizes the importance of the EP clause and then stops the recount of an election in which there is a decent chance that the will of the people was not respected.

Dissent - Ginsburg & Stevens: There is no substantial equal protection claim.

Rule is Narrowed to the Facts of the Case: SCOTUS would not even cite to the case for many years. The rule from the case is limited to the facts at hand. It is not transferable to other situations.

What was the impact of Bush v. Gore (2000)?

Increased Politicization of Election Administration: The case caused more attention on election administration and a corresponding increase in election administration legislation. Political parties sought to pass legislation that improved their chances of electoral success.

Moral Hazard of Election Administration: Officials who design election procedures often have partisan incentives. Small procedural changes have predictable effects.

Issues Raised by this Moral Hazard

1. How should we evaluate procedural choices when they predictably shift outcomes?

   • Should courts police partisan motives?

Help America Vote Act (HAVA)

• Passed in response to the Bush v. Gore controversy - designed to prevent this from happening again

• First federal voter ID requirement: If you register to vote via mail federally, you must submit ID. It is not as onerous as modern voter ID laws.

Voter Fraud and Race

Information manipulation targeting minority communities

1. False notices about election dates or locations

2. Misstatements of voter-eligibility rules of exaggerated penalties

3. Vote Caging - Mass eligibility challenges to slow polling lines

4. Purpose: deter or delay participation without overt coercion

Voter ID Laws - Controversy and Case Law

Arguments For Voter ID Laws: protects against voter fraud and imposes small burden (cost-free) on voters

Arguments Against Voter ID Laws: Voters lacking ID are disproportionately poor, elderly, minority, or disabled

Crawford v. Marion County Board of Elections (2008): Upheld voter ID law that passed on perfect partisan grounds by applying the Anderson-Crawford test (weighing burdens on voting with state’s interest) - do not need to apply test on exam

Institutional Models of Election Administration

Commissions: More common in newer democracifes

Executive: Run by civil service with ministries

Mixed Models: Shared authority - executive with judicial oversight

Decentralized and Partisan: US is the exception - thousands of state/county officials (many elected)

Election Administration Remedies

1. Recounts

2. Election Contests

3. Judicial Review

Election Administration Remedies - Recounts (Purpose and Availability)

Purpose: Verify accuracy of the count, not legality of the votes

Availability:  (1) Automatic recounts - ex: random spot-checks; (2) Requested recounts - for any losing candidate or only for close races

Recounts are very rare, and reversals are even more rare. Initial counts are remarkably accurate, especially in large jurisdictions.

Election Administration Remedies - Election Contests (Purpose and Availability)

Purpose: Challenges the validity of the election, not just the count

Availability

1. Illegal votes counted or legal votes rejected

2. Counting errors affecting outcome

3. Candidate ineligibility

4. Relief

   • Declaring true winner

   • Ordering new election

Election Administration Remedies - Judicial Review (Purpose and Availability)

Courts are very hesitant to involve themselves in the election process. - Why?

Risks of Judicial Involvement

1. Courts could change outcomes and garner allegations of partisan bias

2. Delay, unpredictability, and instability

3. Potential for partisan weaponization

4. Federalism concerns when federal courts review state processes

Arguments for Strong Judicial Review

1. Courts are independent and insulated from political incentives

2. Necessary to remedy fraud, coercion, or disenfranchisement

3. Protects Constitutional rights and electoral legitimacy

Narrow → Broad → Narrow View of Judicial Role in Elections

Narrow → Colegrove v. Green (1946):

Facts: Challenge to severe malapportionment of Illinois congressional districts

Holding: Dismissed as nonjusticiable

Rule: Malapportionment is a nonjusticiable political question.

Reasoning: “Courts should not enter this political thicket.” Courts must avoid disputes placing them “in active relations with party contests.” The opinion emphasizes judicial restraint and the dangers of judicial involvement in partisan politics.

Broad → Baker v. Carr (1962):

Facts: Tennessee had not reapportioned since 1901 despite major population shifts. Plaintiffs alleged vote dilution under the EPC of the 14th amendment.

Holding: Standing is established… not dismissed as nonjusticiable. The Court remanded the case… did not decide on the merits.

Rule: Malapportionment is justiciable.

Reasoning:

1. Not a Political Question

   • This is not an area that is textually committed to another branch.

   • No foreign affairs concerns

   • Courts have manageable standards under the EPC

2. Clarifying Colegrove

   • Seeking protection of a political right ≠ political question

3. Doctrinal Significance

   • Distinction between political cases and political questions
     

Narrow → Modern Era of Judicial Restraint in Election Law

1. Rucho v. Common Cause (2019): Partisan gerrymandering is nonjusticiable. State legislatures ought have control of redistricting.

2. Purcell Doctrine

   • Purcell v. Gonzalez (2006): 

     • Facts: Lower court enjoined Arizona’s new voter ID law three weeks before election. 

     • Holding: Vacated the injunction

     • Rule (Purcell Doctrine): Avoid last-minute judicial changes to election rules. Reasoning: Court orders can cause voter confusion

   • Purcell in the Pandemic: Purcell was invoked to block voting law changes close to an election. The Court was consistent in its application to changes that made it easier or harder to vote.

3. Cases Dismissed due to Standing

   • The Court increasingly uses standing to restrict access to judicial review in election cases

     • United States v. Hayes (1995) - Only voters inside racially gerrymandered district may challenge it.

     • Lance v. Coffman (2007): Voters lack standing to contest mid-decade partisan line-drawing.

     • Virginia House of Delegates v. Bethune Hill (2019): A chamber of the legislature lacks standing to defend its own maps.

Whitley v. Cranford (2003)

Facts: 183 voters received ballots missing the Justice of the Peace race Whitley, the winning candidate, won by 55 votes.

Holding: Election voided

Rule: Even without fraud, if an election mistake was such that it renders the outcome of an election uncertain, the election must be voided.

Reasoning: The value of the secrecy of the ballot defeats the suggestion that these people can simply vote now after the fact.

Dissent’s Reasoning: 

1. Fraud, intimidation, or coercion is a long-standing requirement for voiding an election as demonstrated by precedent.

2. The majority values protecting the right to vote of 183 voters at the cost of disenfranchising 1500+ valid voters.

Role of State Constitutions in Election Law

State Constitutions often include express election protection provisions lacking in the federal Constitution

1. “Free and equal” elections clauses

2. Ballot secrecy

3. Prohibitions on intimidation/interference

4. Enumerated election crimes

5. Mandates for protective legislation

Why are Courts wary of voiding elections? What are the alternatives?

Risks of Voiding Elections

1. Avoid disenfranchising innocent voters

2. Respect for the expressed political will of voters who successfully and legally participated

3. Cost and time of running another election

4. A second election measures a different electorate, a new political will. There is no way of recreating the electorate as measured during the first election.

Alternatives:

Adjust the Totals: Exclude illegal ballots or include wrongfully rejected ballots

Works when → irregularity can be linked to specific ballots

Does not work when → when the number or identity of tainted ballots cannot be determined. In these cases, the plaintiff must show that the irregularity is large enough to cast doubt on the result.

Courts avoid full invalidation unless irregularities are both… (1) Untraceable; and (2) Outcome-determinative.