Sarah Haan has posted this draft on SSRN (forthcoming, Southern California Law Review). Here is the abstract:
Political voting rights have become the subject of sharp legal wrangling in American elections, and the focus of headlines and popular debate. Less attention has focused on American corporate elections, where something similar has been happening: the last two decades have witnessed significant unsettling of basic shareholder voting rights, including laws and practices that were mostly stable throughout the twentieth century. Today, shareholder voting rights are in flux and, increasingly, in controversy. This Article connects the current moment of instability to the last significant era of change in shareholder voting rights—the nineteenth century—and brings historical context to a new era of dynamic change.
A small but potent literature has explored the historical evolution of nineteenth-century shareholder voting rights in corporate law, establishing that per-share vote allocations changed significantly over that century. This literature, which focuses on the shift from “democratic” vote allocations (one-person-one-vote and restricted voting) to “plutocratic” voting (one-share-one-vote), has treated vote allocations as the exclusive determinant of shareholder voting power. The literature has raised as many questions as it has answered, and ultimately has failed to produce agreement among scholars, or a cohesive narrative to explain how or why the modern framework for shareholder voting rights emerged.
This Article presents an alternative account of transformations in shareholder voting rights that tracks three evolving sets of legal rules. It shows how the voting-rights framework that was cemented by the end of the century—the framework that would go on to define twentieth-century corporate control—was determined by the interrelation of the three. One regulated the shareholder’s right to delegate votes (proxy voting), another set per-share vote allocations, and a third addressed the shareholder’s right to aggregate votes (cumulative voting). The Article shows why these three sets of rights must be understood as coactive and interdependent. It contributes new ideas to the longstanding debate about why American corporate law shifted to the rule of one-share-one-vote, and concludes by returning to the present moment, arguing that shareholder voting rights have become newly unsettled through shifts along these same fault lines.
I am pleased to share the recipients of the AALS Section on Election Law’s annual awards ahead of the annual meeting next week. (For a list of past award recipients, see here. If you are a law professor who is not already on the listserv to receive these announcements, please join the Section here!) I am immensely grateful to the volunteers who helped with these selection processes.
The John Hart Ely Prize in the Law of Democracy
This award is presented to a senior scholar in our field for his or her “extraordinary lifetime contributions to the study of election law and the law of democracy in the United States.”
This year’s recipient is Pam Karlan (Stanford).
Distinguished Scholarship Award
The Distinguished Scholarship Award in Election Law is awarded for “a single work that exemplifies excellence in the field and that is published within a given year.” The term “work” is defined broadly.
Winner: Tabatha Abu El-Haj – How The Liberal First Amendment Under-Protects Democracy
Honorable Mention: Bertrall Ross and Doug Spencer – Voter Data, Democratic Inequality, and the Risk of Political Violence
Paula Monopoli (University of Maryland Francis Carey School of Law) has a new article out entitled, “Gender, Voting Rights, and the Nineteenth Amendment.” The article is forthcoming in the Georgetown Journal of Law & Public Policy. The abstract is below:
One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that ‘there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment’. This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct constitutional history and meaning. The unique historical context preceding and following the Nineteenth’s ratification militates for courts to adopt a holistic interpretative approach when considering a Nineteenth Amendment claim. Such an approach has both expressive and doctrinal implications, providing support for courts to adopt disparate impact, rather than intentional discrimination or discriminatory purpose, as a threshold standard for such claims. Reasoning beyond the text—from legislative intent, purposes, structure, and institutional relationships—could restore the lost constitutional history around the Nineteenth Amendment, making it a more potent tool to address gendered voter suppression today, especially for women of color. This paper provides a framework for judges willing to move away from rigid textual analogy toward a more holistic constitutional interpretation when evaluating a constitutional claim under the amendment.
Can’t wait to read this one! Important and timely.
The Brennan Center for Justice at NYU Law has published “Voting Laws Roundup: October 2022,” their latest roundup of state voting and election laws, and “Restrictive Voting Laws Enacted Since 2020 in Effect for the Midterms,” a companion table outlining the impacts of the post-2020 restrictive voting laws that are in effect for the midterms.
The main findings (as of September 12, 2022):
- Voters in 20 states are being impacted by 33 new restrictive laws enacted since Jan. 1, 2021 and in effect for the midterms.
- The effects of these laws include but are not limited to reduced polling places and hours, shortened early voting periods, barriers to registration, and more (see table for all effects)
- The 20 states: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Indiana, Kansas, Kentucky, Mississippi, Missouri, Montana, New Hampshire, New York, Oklahoma, South Carolina, Texas, Utah, Wyoming
- So far in 2022, 7 state legislatures have enacted 12 election interference laws, of which 11 are in effect for the midterms.
- “Election interference” legislation – a brand new type of law that emerged after the 2020 election – either opens the door to partisan interference in elections or threatens the people and processes that make elections work (see roundup for these laws’ impacts)
- The 7 states: Alabama, Arizona, Florida, Georgia, Kentucky, Missouri, Oklahoma
- So far in 2022, 12 state legislatures have enacted 19 laws that expand access to the vote, of which 18 are in effect for the midterms.
- The 12 states: Arizona, Connecticut, Delaware, Louisiana, Massachusetts, New Hampshire, New Jersey, New York, Oklahoma, Oregon, Rhode Island, South Carolina
See the full report/table for more analysis and conclusions.
Important reporting from the AP about the surge of election deniers signing up to be poll watchers ahead of the 2022 midterms.
As more jurisdictions are considering introducing rank choice voting (the issue will be on the ballot in Nevada this fall), Politico offers this long-form essay on Alaska’s experience. Can Alaska “point the way to a more moderate, more nuanced way of doing politics”? Or is rank choice voting a product of Alaska’s uniquely independent culture? Politico spoke to Ivan Moore, “a longtime Alaska pollster who is considered one of the foremost experts on the state’s politics.”
“Number one, that ranked choice voting worked well. Pretty flawless performance by the Alaska Division of Elections.
. . .
[Sarah Palin lost because] Sarah Palin is indeed very unpopular.”
Interestingly, the relationship of a state’s culture to the potential for reform is a longstanding question. Early adopters of vote by mail, early voting, and same-day registration, for example, were often states that already had high turnout. This often led political scientists (and I believed them) to conclude the reforms were not scaleable. But 2020 seems to have proved them wrong.
By way of clarification, even if the Nevada ballot initiative is successful, the earliest the reform could be implemented is 2026. Amendment to the state constitution must be passed in two consecutive cycles. Rank choice voting is on the ballot in nine jurisdictions this fall, but the rest are at the municipal level.
The Atlanta Journal-Constitution reports that Fair Fights Action has lost its 2018 challenge to Georgia’s election laws after four years. Georgia’s voter registration and absentee ballot practices, while not perfect, the Judge concluded, did not violate either the Constitution or the Voting Rights Act. The judge ruled in favor of Georgia on all counts. The full opinion is embedded in the article.
Unfortunately, behind a firewall, the WSJ offers an interesting and nuanced analysis of the likely impact of increased support among voters of color for the Republican Party. The bottom line is turnout next month will be key. As per usual, a low turnout election will benefit Republicans whereas a high turnout election offers the Democratic Party its best chance.
“Black voters are a prime example of the balance between voter turnout and party preference. The median shift toward Mr. Trump in heavily Black neighborhoods was 1.5 percentage points. But Democrats retained overwhelming support among Black voters, winning about 90% of their votes. That suggests that Democrats gained substantially more from higher Black turnout than the party lost in defectors to the GOP.”
The analysis is based on a study of census tracts in which 70% of residents are persons of color. The WSJ compared how those neighborhoods voted in 2020 as compared to 2016. The study– which includes charts if you have access–confirms the consensus that the Republican Party did make inroads with nonwhite voters in 2020. But it offers a nuanced analysis:
“National figures show that U.S. Latino, Asian-American and Black voters backed President Joe Biden in 2020, though by smaller margins than Democrats won four years earlier. At the same time, more of these voters turned out than in 2016, producing a net gain in votes in many places for Democrats.”
CNN reports on how conservative activists in Georgia are invoking the state’s recent controversial election law to “attempt to remove thousands of voters from the rolls with just weeks to go before the October 17 start of in-person early voting.”
New article by Nick Corasaniti and Alexandra Berzon at N.Y. Times describes how “false theories about election fraud” underly activists efforts to purge tens of thousands of voters from the rolls in many key battleground states.
Groups in Georgia have challenged at least 65,000 voter registrations across eight counties, claiming to have evidence that voters’ addresses were incorrect. In Michigan, an activist group tried to challenge 22,000 ballots from voters who had requested absentee ballots for the state’s August primary. And in Texas, residents sent in 116 affidavits challenging the eligibility of more than 6,000 voters in Harris County, which is home to Houston and is the state’s largest county.
I have posted on SSRN a draft of this encyclopedia article, forthcoming in the Oxford Handbook of American Election Law (Eugene Mazo, editor, forthcoming 2023). Here is the abstract:
This Chapter considers what election “reform” is and why many Americans want it; who has successfully reformed election rules in the United States and how; the current Supreme Court’s role as a barrier to many progressive election reforms; and the future of election reform in a hyper-decentralized, polarized electoral system. Throughout American history, dissatisfaction with substantive policies and with political and economic inequality, including across race and gender, has fueled interest in changing political arrangements. Proposals for political change also prompt reactions by those opposing them. Some election reforms have already been enacted and implemented, while others have failed. Constitutional change is difficult given a cumbersome amendment process requiring supermajority support. Other reasons for failure include lack of sufficient popular support, self-interested legislative resistance to popular ideas and the absence of a direct democracy workaround, and language in the United States Constitution, at least as interpreted by the Supreme Court. In the current hyper-polarized political system, bipartisan cooperation on large-scale election reforms including constitutional amendments will be rare, and one-party supported statutory reforms or those passed through direct democracy will be more common. The biggest impediment to current progressive-oriented reform is the jurisprudence of the conservative Justices who make up a majority on the Supreme Court. It is harder to predict the success of election reforms in the longer term.
Keywords: election reform, constitutional amendments, voting rights, campaign finance, redistricting, direct democracy, political polarization, Voting Rights Act, Fifteenth Amendment, Seventeenth Amendment, Nineteenth Amendment, Twenty-Third Amendment, Twenty-Fourth Amendment, Twenty-Sixth Amendment
Josh Douglas has this comment in Washington Monthly, combining his twin loves of baseball and voting:
It’s hard to run an election in normal times, let alone during a global pandemic and in a period of extreme political polarization. The need to innovate in 2020, however, created some good news: Americans love voting at stadiums almost as much as they love the teams that play there. Sports stadiums or arenas are an ideal location to house in-person voting. We should expand their use and encourage teams to create a festive atmosphere while voting is taking place.
Those are some of the main takeaways of an important new report by scholars from five institutions and supported by the Civic Responsibility Project, a nonprofit organization dedicated to helping business leaders and other nonprofits expand civic engagement. The authors—experts in democracy reform—studied the use of sports stadiums in 2020 and came to a significant conclusion: Virtually everyone loves them. (Disclosure: I consulted on the project.)
I blogged last year about a legal challenge to a new extension of voting rights to non-citizens in two Vermont cities. A much more significant expansion took place last fall in New York City, which also faced a similar legal challenge. Per the New York Times, a state court recently concluded that the law violated the state constitution:
“The New York State Constitution expressly states that citizens meeting the age and residency requirements are entitled to register and vote in elections,” the judge wrote in his ruling. “There is no statutory ability for the City of New York to issue inconsistent laws permitting noncitizens to vote and exceed the authority granted to it by the New York State Constitution.”
The text of the court’s ruling is here.