Category Archives: ELB Book Corner

ELB Book Corner: Routledge Handbook of Election Law: Disputed Elections in Africa and the Role of Courts

comparative election law, ELB Book Corner

am pleased to welcome to ELB Book Corner some of the authors of the Routledge Handbook of Election Law. Here is the final of three posts, by Ugochukwu Ezeh.

Ugochukwu Ezeh

The judicialisation of electoral disputes has emerged as an increasingly common phenomenon in a number of African countries. In my chapter contribution to the Routledge Handbook of Election Law titled ‘Contested Elections in Africa: The Role of Courts in Electoral Processes’ I discuss three key normative roles that courts can play within the electoral processes of nascent democracies and transitional societies on the African continent. Accordingly, I argue that courts – within the context of electoral dispute resolution – may help promote democratic renewal by: invalidating electoral malpractices and irregularities; facilitating the independence of core democratic institutions (such as electoral management bodies); and disseminating democratic values and constitutional norms.

Invalidating Electoral Malpractices and Irregularities

In exceptional cases involving sham elections that evidently subvert the democratic will of the electorate, courts may provide practical remedies by invalidating electoral malpractices and other salient forms of electoral irregularities. Recent examples of this pattern of judicial intervention include the historic decision of the majority judges in the Supreme Court of Kenya to overturn the presidential election results in 2017 and order a re-run. This precedent was reprised in Malawi in 2020, when the Supreme Court of Appeal, in a celebrated judgement, nullified former President Mutharika’s controversial re-election.

However – given its discernibly heightened and far-reaching implications – this category of judicial intervention is best restricted to exceptional cases involving salient violations of applicable constitutional and statutory frameworks in the electoral spehere as well as significant forms of electoral malpractice. Conversely, less activist forms of judicial review may be more appropriate in cases where alleged electoral irregularities have negligible effects on the credibility of the electoral process. Thus, in dismissing an election petition which sought to nullify the results of Nigeria’s contested presidential election in 1979, Justice Obaseki of the Nigerian Supreme Court aptly remarked that ‘no tribunal in any petition by a weak presidential opponent, can justifiably invalidate any election for non-compliance on a minimal scale.’      

Facilitating the Independence of Electoral Management Bodies

Considering their centrality to the quest for credible electoral processes in transitional societies and fledling democracies, the autonomy and institutional independence of electoral management bodies can hardly be overemphasised. Accordingly, courts, through the exercise of their judicial review powers, may contribute towards facilitating the autonomy of electoral institutions. In this connection, courts may leverage, for instance, adjudicative opportunities presented by high-profile election petitions to affirm constitutional and statutory provisions guaranteeing the independence of electoral management bodies.

Disseminating Democratic Values

Within the context of electoral dispute resolution, courts may also contribute towards advancing the cause of democratisation by disseminating constitutional norms and democratic values. For instance, courts, in some jurisdictions, such as Ghana, have sought to signal the importance of transparency as a key democratic value in the course of determining election petitions. It is instructive that the Ghanaian Supreme Court permitted public broadcasts of the judicial proceedings arising from the country’s contested presidential election in 2012. The strategic adoption of transparent adjudicative procedures was aimed at facilitating greater civic engagement with the judicial process and building public trust in the system of electoral dispute resolution. 

The Limits of Judicial Remedies

Notwithstanding the foregoing, the capacity of courts to facilitate democratic consolidation in transitional societies and nascent democracies should not be overstated. Judicial invalidation of salient electoral malpractices and irregularities may not always be a viable option – particularly in jurisdictions where the political context is repressive or otherwise unconducive to intrepid assertions of judicial independence. In some other cases, election petitions may flounder if opposition groups and unsuccessful election candidates adduce unsatisfactory evidence or otherwise fail to substantiate their claims in the court. By the same token, the sustainability and relevance of judicial resolution of electoral conflicts may also rest on the readiness of aggrieved litigants and other political actors to accept democratic outcomes and principled judicial decisions in good faith.        

Conclusion

The struggle to consolidate democratic governance in several transitional societies and fledgling democracies across the continent must be regarded as a collaborative and long-term process. Beyond the courtroom, this struggle will ultimately be sustained – or negated – by the collective enterprise of all democratic stakeholders including the citizenry, constitutional and electoral institutions, pro-democracy activists, the press, the intelligentsia, and civil society groups, among others.  

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ELB Book Corner: Routledge Handbook of Election Law: What a Comparative Study of Election Law Teaches Us About Democracy

comparative election law, ELB Book Corner

I am pleased to welcome to ELB Book Corner some of the authors of the Routledge Handbook of Election Law. Here is the second of three posts, by David Schultz.

ELB Book Corner

David Schultz

Freedom House notes that after a golden age of democracy Post World War II to the fall of the Berlin Wall and  the breakup of the Soviet Union,  it is in retreat across the world.  

Across the world as chapters by Inese Druviete and Eriks Kristens Selga (the Baltics), Ali Çarkoğlu (Turkey), Daniela Urosa (Latin America), Ugochukwu Ezeh (Africa), M. V. Rajeev Gowda and Varun Santhosh (India), Mohd Azizuddin Mohd Sani (Malaysia), Hassan Nasir Mirbahar (Pakistan), and Erik Johan Mobrand (South Korea) show, emerging and advanced democracies face election law challenges. Donald Trump’s refusal to recognize the  results of the 2020 US presidential elections demonstrates election law matters to democracy, but how?

            David Schultz argues that  election law are the rules that translate democratic theory into practice.  He examines constitutional clauses from around the world that address issues of election law such as formal rules regarding voting rights, rights of political parties,  a free press, and free expression.  He found little correlation  between these clauses and whether a country was a democracy.  Schultz concludes that  that we need to examine the impact of constitutional courts, statutory provisions, and political culture and other values and unwritten rules when it comes to explaining how and whether campaigns and elections and election law promote democracy.

            Mark Rush focuses on what representative government in classic and contemporary contexts means. He identifies tensions within democratic theory concerning what constitutes “the will of the people,” the notion of “fair and effective representation,” and how changes in the context in which elections are conducted affect our understanding of democracy and representation. These changes have resulted from technological advances, legal reforms and, paradoxically, the democratization of politics and political power.   He concludes that the future viability of democracy will be contingent upon developing a viable system of capturing the will of the people. 

           Steve Mulroy examines the state of democracy in America, once reputed as the greatest democracy in the world.  He notes five election reform areas where the U.S. is an outlier: (1) voter registration; (2) voter ID; (3) felon disenfranchisement; (4) redistricting; and (5) Proportional Representation (PR). His chapter compares and contrasts across countries, notes trends, and makes recommendations, including Automatic Voter Registration  (AVR), alternatives to photo IDs, eased felon reenfranchisement, nonpartisan districting commissions, and PR. 

Graeme Orr takes an anthropological approach to election law, depicting elections as rituals.  He argues that  electoral politics is as much a sociological experience as it is an instrumental battle for persuasion and power.  This understanding of elections as rituals involves more than just paying heed to the symbolic and customary aspects of democracy.  It includes considering how different systems of campaigning or voting – including particularities of their regulation and technologies – shape how elections are experienced by citizens and elites alike. 

Finally, as chapters by Emily Schnurr and Barbara Jouan Stonestreet tell us, who gives money and how and how elections are financed matters in terms of who gets to speak, run, or participate in elections. Drude Dahlerup and Lenita Freidenvall examine the impact of gender quotas to improve representation of women,  and Enira Bronitskaya  and Jurij Toplak look at  how persons of disabilities are protected or challenged in voting and participating, and  chapters by Alexander Shylk, Bob Watt, and  Mathieu Leloup look at the mechanisms in place to resolve  election disputes or administer elections as important to democracy building.

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ELB Book Corner: Routledge Handbook of Election Law: Voters around the world are increasingly often challenging election results

comparative election law, ELB Book Corner

I am pleased to welcome to ELB Book Corner some of the authors of the Routledge Handbook of Election Law. Here is the first of three posts, by Jurij Toplak:

ELB Book Corner

Jurij Toplak

David Schultz and I have edited what is probably the most thorough review in print of election law around the world. The Routledge Handbook of Election Law features 32 authors from six continents. It covers international election law standards, issues, and trends in Europe, Asia, Africa, Australia, and North and South America. We launched the book in August 2022 with an event at Oxford University.

Court rulings on elections strengthen trust in democracy

Ever since the U.S. Supreme Court decided the result of the Bush vs. Gore presidential election in 2000, the resolution of electoral disputes worldwide has moved from the political arena and from protests to the courtroom. Increasingly often, voters around the world are challenging election results. Austria, Kenya, Switzerland, Iceland, Malawi, and Slovenia are just some of the countries where the courts have recently invalidated elections or referendums.

The courts’ involvement benefits democracy. It can remove voters’ doubts, remedy violations, and increase trust. When necessary, as Ugo Ezeh writes in his chapter on election law in Africa, it can invalidate flawed elections and defend the integrity of the electoral process. Showing all participants that violations will not be tolerated benefits future elections.

In her chapter, Pippa Norris ranks countries according to the integrity of their elections over the years. Denmark, Finland, Norway, Iceland, Germany, and Sweden rank highest, while the UK is the second lowest in Western Europe, ahead only of Malta. The U.S. is ranked lower than most democracies.

The Perception of Electoral Integrity Index measures experts’ perception of electoral rules and processes. It measures how thousands of experts and scholars view and evaluate many elements of the electoral process.

I believe that the UK and U.S. are ranked low in these perception rankings because British and American scholars and media are highly critical of their countries’ electoral systems, and that criticism decisively affects everyone’s perception of British and American elections. Conversely, Scandinavian scholars are protective of their laws and elections. In my opinion, these rankings do not do justice to the UK and U.S.

Election law is a growing field

In the U.S., universities began to teach Election Law as a subject in the 1990s, starting with Daniel Lowenstein. But in most countries, election lawyers have started to emerge only recently. In some European, Asian, and Latin American countries, there are individual legal scholars and lawyers, or small groups of them, who specialize in election law, and there are universities that offer courses in election law. In other countries, lawyers are not interested in election law.

Election lawyers appear particularly in countries that hold frequent referendums or have histories of disputed elections, such as Italy, Switzerland, and France. With an increasing number of elections being referred to the courts, I expect election lawyers to grow in number.

Election practitioners Hannah Roberts and Alex Shlyk contributed chapters on international election principles and electoral observation. Around 30 European election lawyers work for international organizations such as OSCE, ODIHR, EU, and the UN. Most of them work as consultants, international election observers, and advisors to governments worldwide. Many work freelance to assist candidates, parties, election bodies, or international organizations, often spending a month or two in one country before moving to the next.

Most of the book’s 27 chapters comparatively analyze topics such as campaign finance, electoral management, electronic voting, gender in election law, and voting by people with disabilities. My chapter reviews the European Court of Human Rights’ case law on elections. Klemen Jaklič’s chapter discusses European democracies’ efforts to achieve greater personalization of elections; to make them more about individuals and less about political parties.

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ELB Book Corner: George Thomas: “The Inescapability of Constitutional Judgment”

ELB Book Corner, Supreme Court

I am pleased to welcome to ELB Book Corner George Thomas, author of The (Un)Written Constitution. Here is the final of three posts:

ELB Book Corner

In the first post I pointed out that unwritten understandings play a central role in attempting to faithfully interpret constitutional text, which was followed by the second post where I argued that this leads to a process where constitutional meaning is constructed over time, rather than simply being draw out from the text itself. In this last post, I highlight the fact that we must inescapably make judgments about how to order, weigh, and understand different textual provisions and values as part of a constitutional whole.

There is no getting around this. There is no safe space that allows us to avoid making constitutional judgments that are not determined by text, just the reasons we give for making them. When should courts defer to democratic legislation, and when should they protect rights against democratic legislation? The text does not answer these question for us.

In a recent voting rights case, Justice Ginsburg argued that given the history of discriminatory voting procedures—particularly against blacks in many southern states—the Court ought to give wide latitude to Congress in order to protect minority voting rights. In doing so, she urged the Court to defer to Congress’s information gathering and past record in eliminating race-based discrimination in voting, which had historically plagued America’s democratic process.

The Court, in an opinion by Chief Justice Roberts, argued that on the basis of “principles of federalism,” the Congress should not require that certain states and counties get approval from the national government before enacting any law related to voting. True, there was a history of racial discrimination in these districts, but given that it was 50-plus years ago, the Congress should not treat states differently in this regard without a recent showing of discriminatory voting practices on the part of particular states. Chief Justice Roberts would defer to states and, in doing so, overturn sections of a congressional statute. Roberts took seriously the gravity of his decision, but argued it was unconstitutional to subject certain jurisdictions to rules from the federal government without new evidence that these jurisdictions had engaged in racially discriminatory voting practices.

Like Justice Ginsburg’s judgment, the chief justice’s judgment was rooted in how he constructed relations among the states and national government, voting rights, and the Court’s role in the constitutional scheme. Neither simply turned to constitutional text. Rather, based on different textual provisions, an examination of history, and weighing constitutional principles, they arrived at their judgments of what the Constitution, taken as a whole, required. Most crucial to their respective judgments was the weight they gave certain constitutional principles. Justice Ginsburg prioritized voting rights against a history of racial discrimination, while Chief Justice Roberts prioritized federalism given the recent decline in racial discrimination in voting.

It was these judgements about how to order different part of the Constitution that informed their understanding of text. Textual readings we take for granted are often built up as part of an historical process and are not simple givens. Such constructions are a sort of political theory, guiding us to make sense of text, offering standards to shape our judgment in applying the written Constitution to particular cases.  At the most foundational level, how we view the character and nature of the Constitution—what we imagine the Constitution to be—will shape our reading of its text.

There is no getting around these “unwritten” understandings. We should acknowledge them, justifying why we think they make the best sense of our written Constitution as part of our ongoing project of constitutional self-government.

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ELB Book Corner: George Thomas: “The Constructed Constitution”

ELB Book Corner, Supreme Court

I am pleased to welcome to ELB Book Corner George Thomas, author of The (Un)Written Constitution. Here is the second of three posts:

ELB Book Corner

In the first post, I pointed to the unwritten ideas that constitutional interpretation necessarily rests on, noting that this point is obscured by textualist and originalist jurists. In making this point, The (Un)Written Constitution seeks to illustrate that most of our constitutional disputes depend on constitutional construction. We are not simply drawing out the latent meaning of text. Rather, we are engaged in a process of constructing constitutional meaning based on our ideas about the logic and nature of the Constitution and how it ought to apply to a never-ending series of questions.

Consider the First Amendment’s prohibition against “abridging the freedom of speech, or of the press.” What does that freedom entail? Does it allow an opposition party or private citizen to criticize the sitting government? This question was the subject of heated debate in the 1790s, less than a decade after the First Amendment was ratified. While there was agreement that the text protected the freedom of speech and of the press, there was profound disagreement on the scope of these freedoms.

At the time, most sitting Supreme Court justices held that the First Amendment allowed the government to punish speech that brought public officials or the government into disrepute. Presiding over the trial of a critic of President John Adams, Justice Samuel Chase argued that a political minority must “surrender up their judgment” once a government was selected, and that “private opinion must give way to public judgment, or there must be the end of government.” In contrast, James Madison argued that interpretations like Chase’s prohibited the “right of freely examining public characters and measures, and of free communication among the people … which has ever been justly deemed the only effectual guardian of every other right.” The disagreement between Chase and Madison turned on how they understood the nature of republican government, not on the text of the Constitution.

A similar debate occurred around “the executive power” in Article II. Did the president have the power to remove executive branch officers who had required Senate approval to be appointed in the first place? This famous debate of 1789 yielded a number of positions, all of which turned on ideas about the separation of powers and the nature and logic of the different branches of government, not simply on the text of the Constitution. This debate persists to the present day.

Our understanding of republican government shaped how we interpret freedom of speech just as our understanding of the separation of powers shaped how we read the executive power and the question of presidential removal. These answers are not obvious from the plain text of the Constitution, but constructed from unwritten understandings about concepts like separation of powers. 

Originalists insist that we should read the text as it was understood by those who framed and ratified it. They turn to history and linguistic conventions from the period under investigation to retrieve the “original public meaning” of the Constitution’s words. What would constitutional text have meant to an ordinary reader at the time of the text’s ratification? As Justice Amy Coney Barrett has argued, the original public meaning of the Constitution’s text, “and it alone,” is law. Yet this argument depends on unwritten ideas about the nature of the Constitution—on a disputed theory of what the Constitution is—not on the text. It may well be a powerful answer to guide our readings of text, but it is very much a construction of that text.

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ELB Book Corner: George Thomas: “There’s So Much That’s Not in the Constitution”

ELB Book Corner, Supreme Court

I am pleased to welcome to ELB Book Corner George Thomas, author of The (Un)Written Constitution. Here is the first of three posts:

ELB Book Corner

As we prepare for the Supreme Court to overturn Roe v. Wade, the country is once again debating whether unenumerated rights are constitutionally protected. Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, the Mississippi abortion case, insists that a woman’s right to choose to terminate her pregnancy is not found in the text of the Constitution. It’s true the Constitution does not explicitly enumerate such a right. But the Constitution also says nothing about Congress delegating its power, and yet Alito is certain it prohibits Congress from delegating “major questions” to administrative agencies.

As Justice Sonia Sotomayor candidly put it during oral argument in the Dobbs case: “There’s so much that’s not in the Constitution.” How we read and interpret constitutional text largely rests on our unwritten ideas about the Constitution, and our most pressing constitutional debates are largely about what unwritten understandings and principles should guide our reading of text. This is the central claim of my The (Un)Written Constitution recently published by Oxford University Press. I’m grateful to Rick Hasen for inviting me to write about it on the Election Law Blog.

There’s nothing unusual about relying on unwritten understandings to bring constitutional text to life. Yet this point is obscured by the most prominent judicial advocates of textualism and originalism, as well as their political champions (unlike originalist scholarship where unwritten understandings are often an important feature of constitutional analysis). The late Justice Antonin Scalia relished pointing to departures from constitutional text as departures from the Constitution, even while his jurisprudence relied on unwritten understandings. Similarly, Republican politicians tend to insist that we are either following the text of the Constitution or following our policy preferences. We persistently see this trope of disciplining judicial discretion by relying on text at Supreme Court confirmation hearings.

The (Un)Written Constitution seeks to dispel this mythology. The book is written for a general audience as originalist and textualist jurists have come to dominate the bench, and their constitutional understandings have become an important feature of our politics. But it should be of interest to scholars as well. Yet The (Un)Written Constitution draws from judicial opinions and political practices rather than scholarly disquisition. It focuses largely on Supreme Court opinions and the arguments of the justices to make visible the unwritten ideas that drive textual interpretation. I begin with two jurisprudential giants of the second half of the twentieth century, Justices Hugo Black and Antonin Scalia, who helped bring textualism and originalism to the bench, powerfully shaping our current debates about constitutional interpretation.

Beyond Supreme Court opinions, the book turns to prominent political figures such as James Madison, who had a hand in working out constitutional meaning based on sparse text. In explicating the Constitution, these judicial and political opinions offer us a great debate on the political theory that underlies the written Constitution. Across a range of constitutional disputes—from the separation of powers to the meaning of freedom of speech, from partisan gerrymandering to the reach and limits of Congress’s power to regulate interstate commerce, from racial discrimination to same-sex marriage—The (Un)Written Constitution illuminates the unwritten understandings that inform our disputes about the written Constitution.

Yet The (Un)Written Constitution does not defend a particular theory of constitutional interpretation; it seeks to illustrate that allapproaches to constitutional interpretation rest on unwritten ideas. This is an inescapable feature of our written Constitution, not a defect or a bug. What approach is most faithful to the Constitution? I leave that judgment to the reader. 

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ELB Book Corner: Gibson and Nelson: “State Supreme Courts and the Dominant Partisan Regime”

ELB Book Corner, judicial elections

I am pleased to welcome to ELB Book Corner James L. Gibson and Michael J. Nelson, authors of the new book, Judging Inequality: State Supreme Courts and the Inequality Crisis. (Readers using this link and the code JUDGING get a 20 percent discount.) Here is their final of three posts:

ELB Book Corner

Schoolchildren in America are often taught that courts are “different” from the legislative and executive branches of government. Because they have high levels of judicial independence, courts are able to stand up against the tyrannical inclinations of the popularly-elected branches of government to protect the rights of society’s underdogs.

 In Judging Inequality, written with support from the Russell Sage Foundation and the National Science Foundation, we challenge this view of courts. Judicial independence, we argue, does not necessarily lead to a greater respect for the rights of underdogs. Rather, it does nothing more than provides judges with the opportunity to enact their policy preferences into law without fear of losing one’s job. Indeed, these substantial grants of judicial independence, in practice, might simply make it easier for judges to do “the right thing,” as the judges see it.

 For this reason, courts present a potentially dangerous threat to the governing coalition that controls the legislative and executive branches of government. A court with preferences that are not aligned with elites’ policy goals could present a substantial hurdle to the enactment of the dominant political coalition’s policy goals. Thus, courts with conflicting policy preferences may present an existential threat to the ability of traditionally elected branches of government to make the policies their constituents sent them to the capitol to enact. In the eyes of these elites, it is important to do what they can to ensure that the state’s judiciary does not go astray.

 At first glance, it might seem that state legislators and governors have only minimal power to affect the composition of state high courts. After all, state supreme courts in the United States are notoriously nearly unique worldwide in the use of popular elections to fill their high benches and retain their judges. However, our data reveal that nearly a majority of “elected” state supreme court justices are initially appointed to their offices. This fact stands in addition to the large numbers of judges who are formally appointed to their positions. That a vast majority of state supreme court justices are placed on the bench by elites, rather than the mass public, goes some distance toward explaining how state supreme courts may have a considerable degree of congruence and compatibility with the other branches of state government.

 Indeed, Figure 1 reports the percentages of state supreme court justices who initially joined the state supreme court via an interim appointment. Note that this figure examines the selection method in use at the time the justice was appointed even if that system was no longer in use during the 1990-2015 period. Note that Louisiana prohibits interim appointment judges from later standing for election to a full seat on its high court. The most striking percentage belongs to Minnesota, which uses nonpartisan elections to select its replacement justices. Notably, of the 26 justices serving on the Minnesota Supreme Court from 1990 to 2015, all but one joined the court via an interim appointment. Note as well that Minnesota explicitly designates the incumbent (if there is one) on the ballot presented to the voters in that state.

This strong level of control over initial selection is potent. While state supreme court justices regularly face the electorate, the incumbency advantage is strong in judicial elections. Moreover, judges who face reappointment (rather than reelection) are nearly always reappointed. As a result, many state supreme court justices serve for long periods of time. This fact amplifies the importance of initial selection, which, again, is typically the prerogative of dominant political elites.

As a result—and just as Dahl taught us about the U.S. Supreme Court nearly a half-century ago—state supreme courts are generally part of the dominant governing coalition in a state at a given time. To paraphrase Dahl:

The fact is, then, that the policy views dominant on the [state supreme courts] are never for long out of line with the policy views dominant among the lawmaking majorities [in their states]. Consequently it would be most unrealistic to suppose that the [state high courts] would, for more than a few years at most, stand against any major alternatives sought by a lawmaking majority.

Figure 1: The percentage of state high court judges who were initially appointed to their position in states that formally use elections to select justices.

This research was conducted with the support of the National Science Foundation (SES-1456568 and SES-1456580) and the Russell Sage Foundation (G-1962). Any opinions, findings, and conclusions or recommendations expressed here are the authors’ alone and do not necessarily reflect the views of the National Science Foundation or of the Russell Sage Foundation.

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ELB Book Corner: Gibson and Nelson: “The Advance of Conservative State High Courts”

ELB Book Corner, judicial elections

I am pleased to welcome to ELB Book Corner James L. Gibson and Michael J. Nelson, authors of the new book, Judging Inequality: State Supreme Courts and the Inequality Crisis. (Readers using this link and the code JUDGING get a 20 percent discount.) Here is their second of three posts:

ELB Book Corner

In our previous post, we discussed a core finding from our new book, Judging Inequality. Based on an analysis of nearly 6,000 equality-relevant cases decided in state supreme courts between 1990 and 2015, we found that state supreme courts issued approximately equal proportions of pro- and anti-equality decisions. Yet, this topline number masks enormous variation in the propensity of particular state high courts to support equality: states like Texas are particularly unlikely to issue pro-equality decisions; the opposite is true in New Jersey.

But the decisions of state high courts are made by judges. Understanding the background characteristics of these judges is essential to understanding the willingness of state high courts to strike down restrictions on voting, to support the rights of same-sex couples, and to provide citizens with full access to justice. Armed with the support of the Russell Sage Foundation and the National Science Foundation, we worked with a team of research assistants to code the background characteristics of nearly 1,000 people who served as full-time judges on the supreme courts in each state during our twenty-six year time period.

Political scientists have long been interested in the relationship between judicial ideology and judicial behavior, so we began our analysis of judge-level behavior in these equality-relevant cases by examining this connection. Based on news articles, ballot designations, and obituaries, we were able to score each judge in our database as either a Democrat or a Republican. Overall, Democrats dominated; about 56 percent of the judges are Democrats and the remaining 44 percent are Republicans.

The conventional wisdom is that Democrats tend to be at least somewhat liberal and that Republicans tend to be at least somewhat conservative. That assumption, however, is subject to some necessary empirical verification. To validate this assumption, we refer to the work of Bonica and Woodruff, who have developed a measure of state supreme court judges’ ideologies that is useful for us. The measure is derived from a mixture of campaign contributions data and the party of the appointing authority (typically, the governor). We find a large partisan difference in ideology according to the judges’ party affiliation: the difference between the average Republican justice and the average Democrat is about two standard deviations, a very large difference indeed

Armed with these data, we can assess change in the make-up of state supreme courts over time. Figure 1 displays the average ideology of the 50 state supreme courts with civil jurisdiction between 1990 and 2015. Lower (more negative) values indicate greater liberalism. The ideology scores are relative, not absolute scores, so zero has no inherent or substantive meaning. That these bars get closer to the zero line over time demonstrates that the state supreme courts have become considerably more conservative from 1990 to 2015. In the early part of the time series, the courts tilted toward the liberal end of the spectrum. At the end of the time series, this tilt righted itself, producing ideological parity between liberal and conservative state high court judges. As to political party attachments, the average state supreme court in 1990 was 34 percent Republican. By 2000, this figure increased to 45 percent. By 2015, the average state high court was 54 percent Republican.

Figure 1: The average percentage ideology of state supreme courts, by year.

How well does our measure of ideology predict judges’ votes in equality relevant cases?

Figure 2 shows the relationship between judicial ideology and judicial behavior in our dataset. Perhaps unsurprisingly, there is a noticeable negative relationship between ideology and judges’ willingness to support equality. Even without accounting for differences in states, cases, or time, knowing that a judge is liberal or conservative is enough to predict with some degree of confidence how that judge is likely to decide an equality-relevant case.

Figure 2: The relationship between the ideology of state supreme court justices and the percentage of equality-relevant cases in which they voted in a pro-equality direction. The figure is limited to justices who decided at least 10 cases in our dataset.

This research was conducted with the support of the National Science Foundation (SES-1456568 and SES-1456580) and the Russell Sage Foundation (G-1962). Any opinions, findings, and conclusions or recommendations expressed here are the authors’ alone and do not necessarily reflect the views of the National Science Foundation or of the Russell Sage Foundation.

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ELB Book Corner: Gibson and Nelson: “Judging Inequality: Enormous Variation in State High Courts’ Willingness to Advance Equality”

ELB Book Corner, judicial elections

I am pleased to welcome to ELB Book Corner James L. Gibson and Michael J. Nelson, authors of the new book, Judging Inequality: State Supreme Courts and the Inequality Crisis. (Readers using this link and the code JUDGING get a 20 percent discount.) Here is their first of three posts:

ELB Book Corner

For the past two decades, social scientists have looked with renewed interest at the problem of inequality in the United States, teaching us that at least some portion of the growing political, legal, economic, and social inequality in the U.S. is a function of the policy decisions made by U.S. political institutions, particularly the executive and legislative branches.

Courts are also powerful and efficacious policymakers, issuing decisions about the boundaries of the government’s ability to regulate the economy and the depth and distribution of citizens’ rights and responsibilities. Yet, with only a few exceptions, we know little about the extent to which the judiciary—at any level of government—has played a role in the inequality crisis in the United States.

While the U.S. Supreme Court issues a declining number of opinions each year, the 52 state supreme courts (Texas and Oklahoma have separate civil and criminal high courts) have the final say on most cases filed in the United States. Indeed, as interest groups recognize, these institutions are incredibly potent and relevant policymakers.

We take up this challenge in Judging Inequality, a new book published recently by the Russell Sage Foundation. With support from the National Science Foundation and the Russell Sage Foundation, we created an original dataset of nearly 37,000 votes in about 6,000 equality-relevant cases decided in the 50 states between 1990 and 2015. We divide the cases into three broad policy domains. First, we code rulings concerning the rights of minorities, including poor people. This issue area involves cases relating to school finance funding equality, gay rights, and election law. Second, the dataset includes cases about the rights of workers and employees, including cases concerning employment at will doctrines and collective bargaining. The final issue area is cases relating to access to the state’s justice instructions. Cases in this issue area involve mandatory arbitration, class action, attorneys’ fees, and damage caps.

The core of our analysis is the 6,000 state supreme court decisions relevant to political, legal, economic, and social inequality. We therefore begin the discussion of our findings with an examination of the outcomes in these cases: do the courts’ rulings advance or slow greater inequality? A team of nearly 50 research assistants read each case and coded them according to the court’s disposition on the merits. In election law, for example, we asked coders whether the court’s decision expanded opportunities for participation. To aid coders, we provided specific exemplars of pro-equality decisions: for example, those that remove barriers to voting (e.g., Voter ID laws), allow initiatives or referenda to be placed on the ballot, lessen the control of political parties over ballot access, and require the disclosure of campaign donors.

Overall, we found that state supreme courts decided cases in pro- and anti-equality directions equally: 47 percent of the cases in our dataset were decided in a pro-equality direction; 53 percent were not. Among election law cases specifically, the gap is slightly larger, but not overwhelming: about 58 percent of the election law cases in our dataset were decided in a pro-equality direction.

Particularly noteworthy is the cross-state variation in pro-equality outcomes, as the figure below illustrates. While most states vary in a band from about 40 percent to 60 percent of their decisions favoring greater equality—a significant range in itself—a handful of state supreme courts stand out as outliers. The Arizona, New Jersey, and Kentucky courts issued an unusually large percentage of pro-equality decisions, while the state supreme courts in seven states issued an unusually low percentage of such decisions. The Texas Supreme Court is the most anti-equality court in the country, followed by the Indiana Supreme Court. Across America, the rights you have depend on where you live.

Figure 1

This figure aggregates outcomes in all equality relevant cases decided between 1990 and 2015.

This research was conducted with the support of the National Science Foundation (SES-1456568 and SES-1456580) and the Russell Sage Foundation (G-1962). Any opinions, findings, and conclusions or recommendations expressed here are the authors’ alone and do not necessarily reflect the views of the National Science Foundation or of the Russell Sage Foundation.

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ELB Book Corner: Primo and Milyo (Post 4 of 4): The Road Ahead for Campaign Finance Reform

campaign finance, ELB Book Corner

I am pleased to welcome to ELB Book Corner David Primo and Jeff Milyo, writing about their new book, Campaign Finance and American Democracy: What The Public Really Thinks and Why It Matters (U Chicago Press 2020). Here is their final of four posts:

ELB Book Corner

In the last of four blog posts about our new book Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters, we place our findings into perspective.

You can look at our book’s major finding—that campaign finance laws do not affect trust and confidence in government, contrary to the assumptions of courts and reformers—in one of two ways. For die-hard supporters of reform—we call them True Believers in our book, where we discuss them in much more detail—this may be depressing, cognitive-dissonance-inducing stuff. But their “romantic view” of democracy—that if we could just get money out of politics we could enact the “right” policies—has been at odds with the scientific research on collective decision making for some time. This is one more nail in the coffin for that naïve perspective.

But even many campaign finance experts seem to adopt the “romantic” perspective, at least to some degree. In chapters 1 and 7 of our book, we report the results of the first-ever published survey (far as we can tell) of campaign finance experts. Figure 1.1 of our book, reproduced below, compares experts’ responses to the responses of Americans on a set of questions about money in politics. Not surprisingly, experts better understand the realities of campaign finance—for instance, that elective offices are not for sale to the highest bidder. Yet nearly 70% of the experts who took our survey believe that “campaign finance reform is needed to restore the integrity of American democracy.”

For those of us who adopt a “politics without romance” perspective (a phrase coined by the economist James Buchanan) grounded in the traditions of public choice and political economy, these results are one more piece of evidence that democracy has its limits. The pathologies of collective decision making—manifested most elegantly by Arrow’s Theorem—are unrelated to campaign finance. It’s absolutely worth studying how campaign finance alters models of decision making, but we should not be surprised that the fundamental limits of democracy remain even after tinkering with how campaigns are funded.

So what is the path forward for campaign finance reform? While we disagree with him often, Rick Hasen’s focus on political equality and campaign finance moves the conversation in a productive direction—though as we discuss in our book, we are skeptical that political equality is a viable standard for assessing reform efforts. We’d rather see a debate about political equality, however, than a continued beating of the dead horses of trust in government and the appearance of corruption.

We also need better education about money in politics. The public, reporters, and even judges often learn about campaign finance from advocacy groups which have a very clear rhetorical script when it comes to campaign finance. Social scientists can contribute to the public discourse by better informing the American public, the media, policymakers, and others about the role of money in the US political system. We are not so Pollyannaish to think that this will lead to a sea change in how the public thinks about campaign finance. But, we are certain that allowing reform groups and politicians to frame the campaign finance debate will cause misunderstandings and misinformation to flourish.

Thank you for taking the time to read about our book, and thank you once more to Rick Hasen for this opportunity. There are many findings we didn’t have time to discuss in these blog posts, and we hope you will find our results interesting enough to merit getting a copy of our book to learn more.

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ELB Book Corner: Primo and Milyo (Post 3 of 4): Campaign Finance Laws Won’t “Fix” American Democracy

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I am pleased to welcome to ELB Book Corner David Primo and Jeff Milyo, writing about their new book, Campaign Finance and American Democracy: What The Public Really Thinks and Why It Matters (U Chicago Press 2020). Here is their third of four posts:

ELB Book Corner

In our first two blog posts about our new book Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters, we explained that the American public is uninformed and misinformed about campaign finance and cynical about money in politics (and politics generally)—so cynical, in fact, that there is good reason to question whether reform can have any effect on confidence in government—a key pillar of campaign finance jurisprudence. In chapter 8 of our book, we put this question to the test.

The states provide a natural laboratory for studying the effects of campaign finance reform because regulations vary across states and change over time more frequently than at the federal level. In chapter 8, we focus on trust and confidence in state government rather than the appearance of corruption, for two reasons. First, there is the matter of data availability; trust in government is a fairly standard survey instrument, so we are able to obtain dozens of national polls over a long time period that ask similar questions about this concept. Second, there is a theoretical justification. Ultimately, the courts are concerned about the appearance of corruption because of its relationship to faith in government. In Buckley v. Valeo, the US Supreme Court explicitly tied the “appearance of corruption” standard to maintaining faith in government.

We construct the largest dataset to date of survey results asking Americans about trust and confidence in state government—nearly 60,000 individual-level observations in all. Our data spans several changes in state campaign finance laws, allowing us to leverage these changes to better estimate the effects of laws, as well as the Citizens United decision, on trust, giving us a unique window into that controversial decision’s effects on trust in government.

Our book goes into detail on the underlying statistical methodology, but the bottom line is this: we find there simply is no meaningful relationship between state-level trust in government and state campaign finance laws—including contribution limits and public financing—during this time period. We view this as the most important finding in our book, as it challenges 45 years of assumptions about the role campaign finance reform plays in maintaining confidence in government.

We also dispel the myth that Citizens United has destroyed Americans’ faith in government, finding no evidence that trust in state-level government was affected by the decision. Critics might argue that the null results are due to the fact that the effects of the ruling were felt nationwide, not just in states with corporate independent expenditure bans which became unconstitutional as a result of the decision. When we rerun our analysis looking at the ruling’s impact on trust in the federal government, we still find no effects. And sometimes a picture tells you as much, or more than, a regression can. Figure 1.2 of our book, reproduced below, depicts the percentage of Americans indicating that they trust the federal government to do what is right “just about always” or “most of the time.” One would be hard-pressed to look at this figure and discern any impact of Citizens United.

When we have presented these findings, we have been met with one of three reactions: This is obvious, this is wrong, or reformers don’t really mean it when they say that campaign finance reform will restore or maintain faith in government (and some critics hold all three reactions simultaneously!). In our fourth and final blog post, we will discuss the importance of our findings for the campaign finance debate.

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ELB Book Corner: Primo and Milyo (Post 2 of 4): The Cynical Public

campaign finance, ELB Book Corner


I am pleased to welcome to ELB Book Corner David Primo and Jeff Milyo, writing about their new book, Campaign Finance and American Democracy: What The Public Really Thinks and Why It Matters (U Chicago Press 2020). Here is their second of four posts:

ELB Book Corner

In our first blog post about our new book Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters, we explained that the public is uninformed and misinformed about campaign finance. Today, we delve into what the public thinks about campaign finance.

Cynical is perhaps the best word to describe American attitudes toward money in politics—and politics generally. In our 2015 and 2016 surveys of the American public, 81% believe the campaign finance system is corrupt, and 89% believe there is too much money in politics. (Think about how hard it is to get that many Americans to agree on anything!)

These cynical attitudes may seem to create an open-and-shut case for campaign finance reform. But, as we document in chapter 5 of our book, Americans see corruption everywhere—so much so that it raises questions about how campaign finance reform could ever improve attitudes toward government. We asked respondents about nine factors that may affect a politician’s policy positions, such as personal financial advantage or wanting to secure favorable media coverage. Reassuringly, 84% of Americans think that it’s corrupt to adopt a policy position for personal financial advantage. Less reassuringly, nearly two-thirds of Americans think it’s corrupt to adopt policy positions under pressure from party leaders or to secure favorable media coverage—suggesting the term “corruption” has become a catchall for a broad distaste for politics.

Perceptions of corruption also have an ideological bias—what we call contingent cynicism. Chapter 5 of the book presents the results of some survey experiments in which we vary question wording in a random fashion to see whether views about corruption depend on the actors involved. For example, 47% of liberals believe that it is likely corrupt for an elected official to meet with a corporate lobbyist, but only 20% of liberals view a meeting with a union lobbyist as corrupt. Is a campaign contribution from the NRA or Planned Parenthood corrupt? The answer, it turns out, depends heavily on whether you support the NRA or Planned Parenthood’s policy positions.

As with many other policy issues, Americans are divided in their support for campaign finance reform, with disclosure being the most widely supported of the reforms we ask about. Yet, even as some reforms have majority support (masking a partisan divide we discuss in chapter 6 of the book), Americans don’t expect much to come of them. Perhaps sensing the futility of reform given their cynical state, Americans are skeptical that campaign finance reforms will make much of a difference in reducing corruption. On a scale from 1 to 7, with 1 being “the right package of reforms will greatly reduce corruption” and 7 being “reforms are ineffective and politics will always be corrupt,” only a third of Americans come down anywhere on the side of reforms having a positive impact.

These findings raise serious questions about the reform enterprise. If Americans see corruption everywhere, and especially when observing the behavior of political opponents, is there really hope for campaign finance reform to reduce the appearance of corruption? To put a finer point on it, does the Court’s famous “appearance of corruption” standard have any meaning in light of our findings?

Reformers, however, might reasonably point out that just because Americans say they don’t think reforms will work doesn’t mean that reforms are ineffective in addressing the appearance of corruption. In our next blog post, we’ll delve into whether public trust and confidence in government is improved by tightened restrictions on campaign contributions.

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ELB Book Corner: Primo and Milyo (Post 1 of 4): Ignorance About Campaign Finance Reform Is Not Bliss

campaign finance, ELB Book Corner

I am pleased to welcome to ELB Book Corner David Primo and Jeff Milyo, writing about their new book, Campaign Finance and American Democracy: What The Public Really Thinks and Why It Matters (U Chicago Press 2020). Here is their first of four posts:

ELB Book Corner

We are grateful to Rick Hasen for inviting us to discuss our new University of Chicago Press book Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters. We have collaborated on campaign finance research for over twenty years. This book takes what we have learned during that time—as well as new survey data emerging from our participation in the Persily-Bauer-Ginsberg campaign finance task force—to construct the most comprehensive look at public opinion about campaign finance to date.

Why does public opinion about money in politics merit a book-length treatment? Since the US Supreme Court’s 1976 Buckley v. Valeo decision, the foundation of campaign finance law has largely rested on concerns about how campaign contributions lead to quid pro quo corruption or the “appearance” of such corruption. Concerns about appearances place public perceptions front-and-center in the campaign finance debate.

Campaign finance is sui generis among policy issues in that public opinion determines the constitutional permissibility of regulations that otherwise restrict political speech and participation. The Court, however, has been content to assume that campaign finance laws work in the ways reformers promise, reducing corruption and its appearance. While this may seem self-evident, science demands actual evidence—hence, the importance of the questions we ask in this book.

These questions can be boiled down to

  • What does the public know about money in politics?
  • What does it think about money in politics?
  • Do campaign finance laws influence these attitudes?
  • Why do the answers to the above matter for American politics?

In today’s post, we answer the first question. In 2015 and 2016, we surveyed Americans as part of the Cooperative Congressional Election Study (CCES) to understand their views on campaign finance. The first thing we learned is that the American public is woefully ignorant about money in politics. Americans do about as well in answering questions about the basics of campaign finance law as a blindfolded monkey throwing darts at possible answers.

Even worse, Americans also buy into false narratives about money in politics. More than three-quarters of respondents in 2015 and 2016 thought that super PACs accounted for over half of campaign spending in the most proximate election season—in reality, super PAC spending was 9% of total spending in 2014 and 15% in 2016. Supermajorities of Americans also believe that “elective offices are for sale to the highest bidder” and “campaign contributions are the equivalent of bribes.”

It’s no surprise that the public is uninformed and misinformed about money in politics, though the extent of the ignorance and misinformation is a bit jarring. What may be surprising, though, is that this ignorance has consequences for policy preferences. The less you know about campaign finance laws, the more likely you are to support stricter laws. Buying into the false narrative that super PACs are “flooding” the campaign finance system also leads to greater support for tougher campaign finance laws.

There are many more findings in chapter 3 of our book about public knowledge, or lack thereof, including how little the public knows about just how much of their personal information is publicly revealed after they make a campaign contribution.

Knowing little about campaign finance does not stop Americans from having opinions on the role of money in the American political system. In our next blog post, we’ll delve into what the public thinks about the campaign finance system and the prospects for reform.

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ELB Book Corner: Kurt Lash (Post 3 of 3): The Fight for Black Suffrage: Documenting the History of the Fifteenth Amendment

ELB Book Corner

I’m delighted to welcome my friend and former colleague Kurt Lash to the ELB Book Corner, for the third of three guest posts on his exceedingly important collection, The Reconstruction Amendments: Essential Documents. Here’s Kurt:

ELB Book Corner

In my last two posts, I’ve described the basic theory and contents of the new historical collection, The Reconstruction Amendments: Essential Documents (2 volumes) (Kurt T. Lash, ed.) (University of Chicago Press, 2021). In this final post, I describe the collection’s documents relating to the issue of Black suffrage and the framing and ratification of the Fifteenth Amendment—materials likely of special interest to readers of the Election Law Blog.

Sensing that the window for constitutional change was closing, Republicans in the final days of the Fortieth Congress rushed to pass a proposed suffrage amendment and send it to the states before the end of the current state legislative session. The result was procedural chaos as competing drafts flew back and forth between the two houses of Congress. Within this chaos, however, are extended and sophisticated discussions of congressional power and constitutional meaning. Just as the Fourteenth Amendment drafting debates contained extended discussions of the meaning and scope of the Thirteenth Amendment, so the Fifteenth Amendment drafting debates contain substantial commentary on the meaning and scope of the Fourteenth Amendment, especially the Citizenship Clause and the Privileges or Immunities Clause of Section One and the suffrage provision of Section Two. Also, as was true during the Fourteenth Amendment debates, the suffrage amendment debates included significant discussion of the scope of congressional power under the original Constitution (particularly the Republican Guarantee Clause and the “Comity Clause” of Article IV) as well as repeated references to and debates about the theories of Madison and Hamilton in the Federalist Papers and the original ratification debates.

Even before debating a Fifteenth Amendment, Congress had already taken significant steps towards securing the right to vote for southern Black Americans. The 1867 Reconstruction Acts, for example, required southern Black citizens be allowed to register and vote on the creation of a new state constitutions and new state assemblies (assemblies that would hold new votes on ratifying the Fourteenth Amendment) (see Volume 2, Part 1B, docs. 74 and 77). Congress also had imposed “fundamental conditions” on the readmission of former rebel states such as Arkansas, North and South Carolina, Louisiana, Georgia, Alabama, and Florida, prohibiting these states from denying blacks the right to vote any time in the future (Vol. 2, Part 1B, docs. 74, 77, 89 and 93).

Nevertheless, even in those southern states that were required by federal law to permit Black suffrage, the exercise of Black political power faced stiff resistance. In Georgia, for example, although Black citizens had been permitted to vote for members of the state legislature, the Georgia State Assembly voted to excluded elected Black representatives (claiming that blacks had the right to vote but not the right to hold office). The exclusion outraged congressional Republicans who responded by refusing to seat Georgia Senator Joshua Hill at the opening of the third session of the Fortieth Congress (Vol. 2, Part 2A, doc. 1). By that time, Republican congressional leaders had decided that the time had come to take the final step toward constitutionally securing the equal political rights of freedmen: passage of a fifteenth amendment abolishing racial discrimination in voting.

Congress drafted and debated the Fifteenth Amendment during the third session of the Fortieth Congress, between December 7, 1868, and March 3, 1869. A widely shared sense of urgency to see it completed before the end of the session resulted in both houses of Congress working on various suffrage amendments at the same time. The multiplicity of versions and votes, with drafts bouncing back and forth between the two houses, inevitably produced periods of substantive and procedural confusion. (see, Introduction, Vol. 2, Part 2A) Although members like John Bingham proposed broad amendments prohibiting states from denying any qualified male “the equal right of suffrage” (Vol. 2, Part 2A, doc. 8), on February 6, 1869 Congress passed a narrow amendment prohibiting the denial of the right to vote “on account of race, color, or previous condition

of servitude.” (id. at doc. 21). Discussed but ultimately not included was language protecting the right to office holding (id. at doc. 20), and protection against discrimination on the basis of wealth, property, or education. (see, e.g., docs. 3, 6, 8, and 11).

Although a number of reconstructed southern legislatures quickly ratified the amendment, northern opposition emerged in Democrat-controlled state legislatures and, most startlingly, from women’s rights advocates like Susan B. Anthony and Elizabeth Cady Stanton. In language increasingly racist in tone and content, Stanton and Anthony called for the defeat of the Fifteenth Amendment (see Stanton’s “All Wise Women Should Oppose the Fifteenth Amendment,” Vol.2, Part 2B, doc. 23). At the 1869 Equal Rights Association, with Frederick Douglass seated on the same stage, Stanton announced that she “did not believe in allowing ignorant negroes and ignorant and debased Chinamen to make laws for her to obey.” (id. at doc. 18)

In fact, significant pockets of opposition to Black suffrage remained both north and south. Ohio ratified the Amendment by a single vote. New York ratified, but then rescinded its ratification. When the newly readmitted state of Georgia refused to seat newly elected Black state representatives, Congress expelled the state of Georgia and demanded the ratification of the Fifteenth Amendment as the price of re-readmission. Similar “Requirement Bills” were passed for the readmission of Virginia, Mississippi and Texas—acts which prompted newspaper editorial concerns about legitimacy). (see, e.g., id. at doc. 13)

Finally, on March 30, 1870, President Ulysses S. Grant announced the ratification of the Fifteenth Amendment, what he called “a measure of grander importance than any other one act of the kind from the foundation of our free Government to the present day.” (id. at doc. 34) Frederick Douglass agreed. In a message to a group celebrating the passage of the Fifteenth Amendment, wrote, “[h]enceforth, we live in a new world, breath a new atmosphere, and have a new earth beneath and a new sky above us.” (id. at doc. 35).

To date, scholarship on the history of the Fifteenth Amendment has been relatively rare (though there are some signs of renewed interest). This new collection should help lower the bar to new historical scholarship on the history of constitutional suffrage rights. Even beyond questions of the right to vote are broader questions of racial equality, congressional enforcement power, and the role of federalism in our post-Civil War Constitution. All of these issues were hotly debated for what amounted to a five-year “moment” of public constitutional debate. The collection is meant to be an introduction this extraordinary moment and a prompt to further and deeper investigation and scholarly debate.

My thanks to Rick Hasen for giving me the opportunity to present these three posts on “The Reconstruction Amendments: Essential Documents.” In the next few months, I’ll be speaking about the collection at a variety of conferences and symposia around the country. I look forward to meeting and talking with readers of the Election Law Blog at those events.

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