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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
NOW AVAILABLE from
Barnes and Noble
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Category Archives: voting
“Enfranchising Persons with Disabilities: Continuing Problems, an Old Statute, and a New Litigation Strategy”
Michael Ellement has posted this draft on SSRN. Here is the abstract:
Despite strides in the modern-era, voting continues to present barriers for persons with disabilities. Many in the disability rights community saw promise on the horizon with the passage of The Help America Vote Act (HAVA) in 2002. HAVA focused on updating voting machines across the country, and additionally enacted standards for disability access to voting locations. However, HAVA failed to contain a private right of action to remedy violations. As many commentators have discussed, this failure to permit persons aggrieved by violations of HAVA to sue for those violations has left many of HAVA’s promises unfulfilled.
Under-analyzed is the potential use of § 504 of the Rehabilitation Act (RA) to enforce voting rights for persons with disabilities post-HAVA. The RA’s § 504 prohibits any “otherwise qualified individual with a disability” from “be[ing] excluded from the participation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination under any program or activity receiving Federal financial assistance . . .” The RA provides a private right of action, for damages, to parties aggrieved under § 504. This includes suits against state agencies and government, as § 504 contains a valid exception to the doctrine of sovereign immunity.
This Article suggests that § 504 may provide a de-facto private right of action for enforcing the promises of HAVA.
TPM: “New York City could soon become the first major city in the country to give non-citizens the right to vote. The proposal, which would allow certain non-citizens to vote in local elections, appears to have a veto-proof majority in the New York City Council — enough to overcome opposition by Mayor Michael Bloomberg. As hearings on the proposal get underway Thursday, supporters are optimistic it will become law by the end of the year and believe it will have an impact beyond the five boroughs.”
An important election survey that reveals patterns in voting and registration is the Census Bureau’s Current Population Survey November Voting and Registration Supplement, or CPS for short. The 2012 CPS reveals insights to major stories about the election divined from the exit polls: the changing face of the electorate and the role of young people in determining the outcome of the presidential election. As I suggested previously, the increasing diversity of the 2012 electorate was a partially a turnout story, with non-Hispanic Whites modestly withdrawing from the electorate. The CPS further documents how it is also a story of the inevitable trend of increasing diversity of the country. Perhaps the most revealing new finding is a dramatic decrease in the youth vote, which has important ramifications for future elections.
LAT: “Los Angeles County officials rejected a bid Tuesday from several Santa Clarita Valley school districts and a water district hoping to consolidate elections and avoid the kind of voting rights lawsuits that other local governments have been hit with….The districts commissioned a joint demographic study that found moving to by-district elections would not necessarily increase minority voting power or protect them against voting rights lawsuits. So instead they requested that the county allow them to consolidate their elections with the statewide general election in a bid to increase voter participation in their elections….But officials with the county registrar-recorder said allowing the districts to move their elections might overload the county’s voting system, which has limited room on each ballot. According to the office, large portions of the county are already at 75% capacity in even-year November elections.”
AP: “America’s blacks voted at a higher rate than other minority groups in 2012 and by most measures surpassed the white turnout for the first time, reflecting a deeply polarized presidential election in which blacks strongly supported Barack Obama while many whites stayed home.”
State may also expand early voting, but Democrats say it is not enough. NBC Miami:
The Senate did strip a provision that would have created restrictions on people who assist voters who can’t read English, are blind or have other disabilities. The language would have required a voter seeking help to know the assistant before Election Day and wouldn’t have let anyone help more than 10 voters. Voting rights groups criticized the language, pointing at Haitian-American and other communities where volunteers help voters who have language barriers.
Politico: “The immigration proposal pending in Congress would transform the nation’s political landscape for a generation or more — pumping as many as 11 million new Hispanic voters into the electorate a decade from now in ways that, if current trends hold, would produce an electoral bonanza for Democrats and cripple Republican prospects in many states they now win easily.”
Nate Silver: “Politico attempting to use statistics is like Taco Bell attempting to cook French food.” MORE: “POLITICO ‘analysis’: no way to know how many illegal immigrants would get citizenship and vote, so let’s assume 100%.”
Desiline Victor, the 102-year-old North Miami voter who became a symbol of Florida’s elections woes, could again find it tough to cast a ballot now that the Republican-controlled state Senate voted Tuesday to keep a crack down on foreign-language interpreters at the polls.
The Senate maintained the last-minute measure on what appeared to be a party-line voice vote while debating a bill designed to reverse the effects of an election law that helped create long lines and suppress the vote in 2012.
Two questions: (1) This is the new outreach to Latino voters? (2) This is the response to make lines shorter at the polls in Florida?
I expect a successful federal lawsuit against such a provision if it gets included in a new Florida election law.
Colorado legislators are contemplating changes to their election laws this week that may result in higher turnout. A report issued by Colorado Secretary of State Scott Gessler figures prominently in the deliberations, which triumphantly touts “the most successful (election) in Colorado history,” implying that no changes are needed.
However, claims in the report that Colorado’s voter turnout increased compared to 2008, while turnout declined elsewhere are not supported by the facts. I reassess the report with the best available data — my United States Elections Project — which the Colorado Secretary of State’s office analyzed selectively. With Colorado considering changes to its election laws, policy makers should make their decisions with the most accurate information.
Craig Burnett and Vlad Kogan have posted this draft on SSRN. Here is the abstract:
At last count, U.S. voters were responsible for choosing more than 510,000 distinct elected officials. Few of these contests feature lively campaigns or attract substantial media attention, forcing voters to make decisions with limited direct knowledge of the candidates. What strategies do voters use to do so? Using a “Who Said What?” experiment fielded during an election in a major American city, we show that voters engage in social categorization — and do so on the basis of race and ethnicity when candidates differ in their demographic background. We also find, however, that the degree to which they categorize candidates on this dimension depends on the presence or absence of party labels. Our results suggest that efforts to increase minority representation should look beyond electoral institutions such as district vs. at-large elections to the structure of the ballot itself.
The petition garnered a lot of attention, including in a Sidebar column from Adam Liptak, no doubt it because it was backed by Edward Blum, who successfully brought the Fisher affirmative action case and Shelby County and NAMUDNO voting rights cases to the Court.
But I had been skeptical the Court would take the case, A ruling that jurisdictions could not count “all persons” for purposes of redistricting and must exclude non-citizens would have called into question thousands of districting plans across the country, and it was a theory which seemed to be in direct conflict with the constitutional text.
Chris Elmendorf, Cheryl Boudreau, and Scott MacKenzie have posted this draft on SSRN. Here is the abstract:
Voters face difficult choices in low-information local elections. Despite the concerns this raises for voter competence, there are virtually no studies of whether and when voters are able to choose candidates who best represent them ideologically in these contexts. We fill this gap by creating same-scale measures of candidate and voter ideology during a local election and examining how candidate ideology affects voters’ decisions. We also conduct an exit poll in which we experimentally manipulate cues and examine their effects on voters’ candidate preferences. Our results show that the ideological proximity of candidates has large effects on voters’ decisions. However, exposing voters to endorsements made by political parties and newspapers with ideological reputations diminishes, rather than enhances, voters’ propensity to prefer ideologically-similar candidates. These results challenge the notion that local elections are non-ideological and that citizens who have access to cues make “better” decisions than those who do not.
Franita Tolson has posted this draft on SSRN. Here is the abstract:
Scholars and courts have hotly debated whether section 5 of the Voting Rights Act is constitutional under the Reconstruction Amendments. In these debates, attention has focused almost exclusively on the provisions in the Fourteenth and Fifteenth Amendments that authorize congressional enforcement. This Article argues that there is a better, more sure way to ground section 5 of the Voting Rights Act in the Constitution by exploring the structural inferences that emerge from viewing these Amendments holistically. In particular, this Article draws important lessons from section 2 of the Fourteenth Amendment, which allows Congress to reduce a state’s representation in the House of Representatives for abridging the right to vote in state and federal elections for “any reason except for participation in rebellion, or other crime.”
This Article contends that section 2 influences the scope of congressional authority under section 5 of the Fourteenth Amendment, which gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Section 2, with its low threshold for violations that trigger a relatively extreme penalty, illustrates the proper means/ends fit for congressional legislation to address voting rights violations. Renewed focus on section 2 also sheds light on the textual and historical link between the Fourteenth and Fifteenth Amendments, a link that provides a broad basis for Congress to regulate state elections. This Article concludes that requiring preclearance of all electoral changes instituted by select jurisdictions under section 5 of the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and is thus consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments.
I just had a chance to read this impressive piece. There is a lot of history surrounding the passage of the 14th and 15th amendments which is important and was neglected until this piece. Download it while it’s hot!
That’s the lead story in this week’s Electionline Weekly.
Adam’s latest Sidebar column is: One Person One Vote (or Was That One Voter One Vote?).
I don’t expect the Court to take the Lepak case.
Josh Douglas has posted this draft on SSRN (forthcoming, Vanderbilt Law Review). Here is the abstract:
This Article provides the first comprehensive look at state constitutional provisions explicitly granting the right to vote. We hear that the right to vote is “fundamental,” the “essence of a democratic society,” and “preservative of all rights.” Yet courts and scholars are still searching for a solution to the puzzle of how best to protect voting rights, especially because the U.S. Supreme Court has underenforced the right to vote. The answer, however, is right in front of us: state constitutions. Virtually every state constitution includes direct, explicit language granting the right to vote, as contrasted with the federal constitution, which mentions voting rights only implicitly. And yet those seeking to protect the right to vote have largely ignored this state constitutional source. This is because many state courts “lockstep” their state constitutional voting provisions with federal jurisprudence of the right to vote under the Fourteenth Amendment’s Equal Protection Clause, following the U.S. Supreme Court’s lead in curtailing voter protections. The article explains why this lockstepping approach is wrong for the right to vote and advocates for courts to use a state-focused methodology when construing their state constitutions. It does so through the lens of recent voter ID litigation, showing how various state courts have differed in determining whether voter ID laws are constitutional based on whether the courts faithfully apply the state constitutional provisions conferring voting rights. The federal-state structure of voting rights protections requires a state-focused interpretation for state constitutional clauses that grant the right to vote. First, Article I, Section 2 of the U.S. Constitution points directly to state qualification rules to determine voter eligibility. Second, the textual and substantive differences between federal equal protection voting rights jurisprudence and state constitutional grants of the right to vote counsel toward a state-first methodology. The article also proposes a test for state courts to use when construing their constitutional voting rights clauses: a law that adds an additional voter qualification beyond what the state constitution allows is presumptively invalid, and a state must justify burdens on the right to vote with specific evidence tied to the legislature’s authority under the state constitution. Finally, an Appendix presents a chart illustrating all fifty state constitutions and the language they employ for the right to vote.
“Complaint alleges racial bias in Palmdale elections; Case scheduled to go to trial in May alleges that Palmdale’s system of at-large council seats dilutes the influence of minority voters.”
Michael McDonald’s big post on turnout is now available (complete with graphic).
Vivian Hamilton: “This is the last in a series of posts on the voting age.” This last post links to the first four posts in this series at Concurring Opinions.
Will the post-Sandy rules and election changes affect an election outcome?
Michael McDonald: “You know who won the 2012 presidential election. What you may not know is which candidate did best among the different ways that people vote.”
“Sword, Shield, and Compass: The Uses and Misuses of Racially Polarized Voting Studies in Voting Rights Enforcement”
Kareem Crayton has posted this draft on SSRN. Here is the abstract:
This article addresses the multiple functions of racially polarized voting (RPV) studies, an essential element of voting rights enforcement. This type of social science analysis figures into the doctrine of voting rights in several ways, but not all of its different roles have been fully appreciated or utilized by scholars, policymakers, or the courts. In fact, several recent illustrations show that this information has been misused. By developing the three distinct functions for RPV, this article demonstrates that only its traditional function as affirmative evidence of racial discrimination has been fully advanced in the discourse. By comparison, the “shield” and “compass” uses of RPV (which, respectively, refer to a preemptive review of a jurisdiction’s exposure to legal claims of vote dilution and the assessment of changes in the geographic scope and depth of racially-biased voting patterns) demand greater attention. The article concludes by offering several practical recommendations for actors to improve efforts to utilize these two other functions of RPV.
NYT: “It may seem early to be thinking about the redistribution of House seats that will take place after the Census in 2020, but one state, Rhode Island, is being forced to because its population is declining.”
Vivian Hamilton: “In upcoming posts, I will explore ideals of the citizen-voter from classic democratic theory, argue for a conception of electoral competence, and examine research from several disciplines within the developmental sciences exploring the connection between age range and the attainment of certain cognitive competencies. I conclude that age 18 may have been the best available proxy for electoral competence when the nation adopted it as the voting age in 1971, but developments since then enable us to identify a better proxy.”
African-Americans voted this year at a higher rate than other minorities and may have topped the rate for whites for the first time, according to a new study by the Pew Research Center.
Blacks make up 12 percent of all eligible voters but contributed 13 percent of the votes in the presidential election — duplicating their record turnout in 2008, according to exit polls analyzed in the study. Latinos, whose turnout reached a historic high in actual number, made up 10 percent of the total.
Before the election, many strategists predicted black turnout could be disproportionately harmed by new Republican-backed state laws that required photo identification, reduced early voting hours and curtailed voter registration drives.
Instead, Democratic and civil rights groups used the threat of “voter suppression” to rally blacks.
The report also credits Obama’s candidacy as “one of the main reasons” for blacks’ strong turnout.
I expect Shelby County litigants to discuss this fact in considering the continued constitutionality of section 5 of the Voting Rights Act.
The Project on Fair Representation sent this release via email:
Yesterday, the plaintiffs in Keith Lepak et. al. v. City of Irving, Texas petitioned the U.S. Supreme Court to grant certiorari and overturn the lower court decision which upheld the constitutionality of the City’s new council districts. The new Plan resulted from an agreement between the City and a Hispanic activist who successfully challenged the City’s at-large election system as a violation of Section 2 of the Voting Rights Act. The new Plan created six single-member districts, one of which was drawn with the purpose of giving Hispanics an opportunity to elect a candidate of their choice. The petition is attached.
The Petitioners, concerned voters residing in various council districts, argue that while the new district’s total population numbers are roughly equal, the Plan creates substantial disparities in citizen-voting age populations (CVAP). For example, the Plan’s Hispanic District 1 contains 11,231 citizens of voting age, while District 3 contains 20,617 and District 6 contains 19,920 citizens of voting age. This disparity means that the vote of those in District 1 eligible to cast a ballot is worth nearly twice as much as those of voters residing elsewhere in the City. This major mal-apportionment violates the Petitioners one-person, one-vote right to have their vote weighted equally to that of other citizens.
In opposing the lawsuit, the City sought and won summary judgment on the grounds that whether to use CVAP, citizen population or total population as the districting base is a policy choice left to the discretion of the City.
The Petitioners argue that the one-person, one-vote principle guarantees an equal vote to all electors. The Supreme Court has explained that the Equal Protection Clause requires that each qualified voter must be given an equal opportunity to participate in elections and thus, “when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.” Hadley v. Junior College Dist of Metro Kansas City.
The United States filed an amicus brief and sought argument time in the court of appeals. The brief noted that this case raises “important questions regarding the appropriate population standard a locality should use when drawing its election districts in compliance with the Equal Protection Clause principles established in Reynolds v. Sims.”
The Petitioners argue that Lepak should be granted certiorari for a number of reasons.
First, the Supreme Court has not determined whether total population or voter population is the proper basis for assessing whether the population differences between districts violates the one-person, one-vote principle. In a similar case out of the Fifth Circuit, Chen v. City of Houston, Justice Thomas dissented from a denial of certiorari asserting that by not deciding this issue, the Court has “left a critical variable in the requirement undefined.” Moreover, the dissent noted that, “[t]he one-person, one-vote principle may, in the end, be of little consequence if [the Court] decide[s] that each jurisdiction can choose its own measure of population. But as long as [the Court] sustain[s] the one-person, one-vote principle, [it has] an obligation to explain to States and localities what it actually means.”
Second, the circuits are divided. On the one hand, the Ninth Circuit requires state and localities within its jurisdiction to use total population for purposes of one-person, one-vote compliance. On the other hand, the Fourth Circuit and Fifth Circuit allow states and localities to choose either total population or a voter-based approach without any judicial check as to whether that choice complies with the Constitution.
Finally, the Supreme Court should decide this issue given the tension it creates between Section 2 of the VRA and the one-person, one-vote principle. Specifically, to prevail in a Section 2 vote dilution case, a minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. Courts thus use CVAP to evaluate whether a minority constituency possesses electoral power in a particular geographic area.
Using total population for one-person, one-vote purposes but CVAP for purpose of analyzing Section 2 thus creates intolerable conflict between the Fourteenth Amendment and Section 2 of the VRA. It cannot be the case that courts must look to CVAP figures in finding a Section 2 violation, but may (or must) ignore CVAP figures entirely in assessing whether the new districts they are creating comply with the one-person, one-vote requirement.
The Project on Fair Representation (POFR) is a not-for-profit legal defense foundation based in Alexandria, Virginia that provided counsel to the plaintiffs. In addition to Lepak v. City of Irving, POFR has provided counsel in two cases currently before the Supreme Court, Fisher v. Univ. of Texas and Shelby Co. Ala. v. Holder.
Check it out. I was hoping to speak there but have a scheduling conflict.
Updated (and to be updated again) paper by Herron and Smith. Abstract:
In this paper we examine early voting patterns in the days preceding the 2012 General Election. Drawing on the Florida statewide voter registration database (as of October 1, 2012) and 67 county-level early voting files made public by the Florida Department of State, we disaggregate by party and by racial and ethnic group the 2.4 million votes cast in person before November 6, 2012. We find that early voting was heaviest on the final Saturday of early voting and that racial and ethnic minorities, as well as individuals registered as Democrats and individuals registered as “No Party Affiliation,” were disproportionately more likely than whites and Republicans respectively, to cast ballots on both the first Sunday and the final Saturday of early voting. We also find that votes cast during the very early morning hours of Sunday, November 4, in Miami-Dade and Palm Beach Counties—locations that suffered from exceedingly long lines on Saturday, November 3—were disproportionately cast by black voters. Insofar as the longest early voting lines appear to have occurred on the day in which minority voter turnout was the greatest, it appears that minority voters, and in particular black voters, have borne heavily the burden of House Bill 1355, a piece of election-reform legislation passed by the Florida state legislature in 2011, which among other things reduced the early voting period in Florida from 14 to eight days and eliminated early voting on the final Sunday before a Tuesday election.
Josh Douglas has written this oped.
Herald Tribune: “Changes in the state election law may have reduced the number of Florida voters who participated in early voting this year by an estimated 300,000 votes. That reduction in early voting — from about 2.7 million voters in 2008 to 2.4 million this year — could have consequences in a tight race between Barack Obama and Mitt Romney in the nation’s largest swing state.”
This whole article is worth a read. Absentee balloting is up. It will be hard to tell whether overall decline in Democratic vote in 2012 compared to 2008 is caused (solely) by Florida voting changes as opposed to other factors, such as differences in the level of enthusiasm of Florida voters.
This will be one of the most important empirical questions to disentangle after the election. I’ve been working on the assumption that these voting changes mostly matter on the margin–so in a tight race they would matter, but in a big blowout they would not—but others have suggested some larger effects.
Apparently the three stipulations are about the same:
a. On Monday, November 5, 2012, there shall be in-person absentee ballot
voting until 5:00 pm. Anyone in line at 5:00 pm will be provided a ballot so long as that
ballot can be printed and delivered before 7:00 pm.
b. On Tuesday, November 6, 2012, there shall be in-person absentee ballot
voting from 7:00 am until 7:00 pm. At such time at the end of the day as it appears that
there are more people in line than can obtain a ballot and vote before 7:00 pm, or drive to
their precinct to vote, as required by Florida law, the Supervisor shall advise those who
cannot be so accommodated that they must go to their precinct to vote.
2. The Supervisor of Elections shall forthwith advise the media about the new
hours for absentee voting.
3. The County is acting consistent with the requirements of Florida Statutes Sec.
4. The County’s practices are consistent with the best interests of the voters of
Palm Beach County to allow expanded voting opportunities.
5. The Court shall reserve jurisdiction to ensure compliance.
It is worth recalling the words of Judge White, concurring in the Sixth Circuit case which forced the state of Ohio to restore this final weekend of early voting which the legislature had taken away from all except military voters: “The key distinguishing factor here is that Ohio voters were granted the statutory right to in-person absentee voting through the close of business hours on the Monday before election day, and the election boards of the largest counties broadly embraced and facilitated that right, in response to the unacceptably burdensome situation at many Ohio polling sites during the 2004 election where, in some counties, voters were required to stand in line for long hours and until late at night.”
Four years ago, early voting was a option for each of the five weekends during the voting period. This year that was reduced to one. Some Ohio election boards, particularly in urban counties, have been reporting that fewer people have so far taken advantage of the in-person early-vote option this year, when polls until now have been open only on workdays.
But the Ohio secretary of state’s office said Saturday that, statewide, 1.6 million people had voted by mail or in person as of Friday, a figure that puts the state on track to top 2008 early-vote tallies.
In Cuyahoga, 36,578 had voted as of Friday; in 2008, that number was 54,340. In 2008, there were nine additional early voting days here, and 9,933 people voted on those days.