Important New Student Note: “Voting Wrongs and Remedial Gaps”

Remedies, voting

There’s a great new student note at the intersection of election law and remedies, authored by Delaney Herndon, in the Harvard Law Review. Here is the abstract:

Today, voting rights plaintiffs largely seek injunctive relief.1 This wasn’t always the case. For most of the nation’s history, the standard remedy for a voting wrong2 was damages.3 In the usual case, an election official would (mistakenly or intentionally) deny a voter’s ballot or registration, and the voter would bring a damages action after the fact.4 This remedial structure persisted well into the twentieth century. But beginning in the 1950s and 1960s, injunctive relief became far more common.

This Note asks why that change happened and argues that the secondary effect of this injunction-heavy system, coupled with the slow dismantling of the Voting Rights Act of 19655 (VRA), has been to underdeter voting wrongs. First, it traces the adoption of the action for damages, first in the states and then in federal courts. Next, it follows the rise of injunctive relief in the second half of the twentieth century. It argues that injunctive relief displaced damages because injunctions offered a more efficient remedy that allowed voting rights groups to prevent voting wrongs. The move to injunctions also followed broader trends in public law, as injunctions became the preferred form of relief in suits against officers. But today’s injunction-heavy system tends to underdeter voting wrongs because of limits on the scope of injunctive relief and mismatched compliance incentives for parties subject to injunctions. Finally, this Note considers what can be done to reduce the existing remedial gap.

I’ve been spending some time on the common law tort for denial of the right to vote and found this note so helpful.

Share this:

California: “Many O.C. residents skeptical of election results, potentially swaying key races, poll finds”

election administration

LAT:

Alex Lopez doesn’t contest that Joe Biden was elected president in 2020.

His concern lies with how those results came to be.

“By the numbers? He absolutely won it. Ethically? Probably not,” said the 38-year-old Anaheim resident, who works as a logistics coordinator.

Questions about the integrity of the election process have been stoked nationally for years, in large part because of former President Trump’s claims that victory was stolen from him.

The same goes for Orange County, where 26% of adults surveyed in a UC Irvine poll released this month said they did not believe Biden legitimately won the presidency in 2020, with another 17% unsure about the question.

In a purple county with several key races that could help determine the balance of power in Congress, these doubts could cause voters to stay home in November — particularly conservative voters.

A majority of the O.C. Republicans surveyed for the poll — 55% — thought Biden had not won fairly, while most Democrats — 88% — believed the election results.

A majority of people surveyed who aren’t members of either party said Biden won legitimately. However, 23% said he didn’t, and the same percentage didn’t know.

“Distrust in the election system may very well convince some people not to participate, and what we’re seeing is that people who distrust it more tend to skew to the right, and so that would hurt Republicans,” said Jon Gould, dean of the UCI School of Social Ecology, who spearheaded the poll….

Orange County Registrar of Voters Bob Page started conducting open tours of the ballot counting operation in Santa Ana during the 2022 midterms in an effort to show people the process and alleviate concerns.

But election skepticism and allegations of a “rigged” voting system have persisted.

Share this:

Will Anti-Abortion Presidential Candidate Randall Terry, on the Constitution Party’s Ballot Line in at Least 12 States, Be a Factor in 2024?

ballot access, third parties

With so much attention focused on RFK Jr., Cornell West, etc., don’t sleep on this news, via Ballot Access news.

If ever there was an election year to move to ranked choice voting for President so that third party candidates don’t affect the outcome between the top two contenders, this would be it.

Share this:

“Georgia’s election integrity laws could create ‘hovering threat’ for poll workers in 2024”

election administration, The Voting Wars

USA Today:

In Georgia, in particular, a series of election rules passed over the last three years threaten to overburden election officials and, in some cases, issue criminal penalties against them. New election measures passed by the Republican-led state legislature in late-March that are awaiting a signature from Gov. Brian Kemp could further hamper the way elections offices operate if enacted, experts say.

Liz Avore, lead author of the Voting Rights Lab report, argued that these laws take “steps toward almost treating election officials like they are suspects in a crime” and “treating election offices like they’re crime scenes.” 

For the election workers that USA TODAY spoke with, however, the main concern is that the heightened regulations may hinder the recruitment of poll workers for the 2024 election who play a vital role in elections administration.

Republican leaders in the state, including Kemp and current Secretary of State Brad Raffensperger have defended the new laws, arguing that they bring enhanced security and provide clarity around laws for election officials.

Raffensperger said he didn’t see an issue with poll worker recruitment in 2022 after some of the initial election laws were passed, and doesn’t expect to see any in 2024. He also lauded Republican officials’ work in recent elections.

Share this: