James Thomas Tucker, Jacqueline De León & Daniel Craig McCool have written this article for the Urban Lawyer. This article describes the many barriers that Native American voters face, litigation brought to remove those barriers, and proposed policy solutions.
Category Archives: voting
USC Report on California’s 2024 Turnout Drop
From the Center for Inclusive Democracy:
After historically high turnout in the 2020 presidential election amidst the COVID-19 pandemic, the 2024 presidential election saw a decline in turnout across California. Despite the hopeful expectations of many that the voter behavior seen in 2020 would become the new normal, a notable number of Californians who participated four years earlier did not participate in November. This drop in turnout prompted many policymakers, advocates and researchers to ask who participated in the 2024 presidential election, and possibly more importantly, who did not. To explore these questions, the Center for Inclusive Democracy conducted a statewide analysis of voter participation in the 2024 presidential election by examining official California voter files. Analysis was broken out by race, ethnicity, age group, party affiliation, gender and language designation.
“High Turnover with Low Accountability: Local School Board Elections in 16 States”
An intriguing new paper by Vladimir Kogan, Stéphane Lavertu, and Zachary Peskowitz:
We analyze the most comprehensive dataset on U.S. school board elections. We find that nearly half of races go uncontested and that incumbents are reelected more than 80 percent of the time when they run. Because many incumbents retire instead of running for another term, however, turnover is high (with 53 percent of incumbents replaced in a typical election cycle). School board turnover is also only weakly related to student learning rates. These dynamics–high turnover disconnected from school performance challenges–occur across both urban and non-urban districts, regardless of student demographics and local media environments. Together, these results suggest that local democracy produces high leadership churn and minimal incentives to improve student learning, two findings that can inform debates regarding the benefits and costs of local democratic governance.
New Article on Native American Voting Rights
Pascal Sabino (Bolts) has published an extensive and in-depth profile of challenges facing Native groups in North Dakota and elsewhere as they seek fair representation and equal access to the vote. Among the issues highlighted are the impact of:
- A recent decision by a federal appeals court declaring that only the federal government can sue over violations of the Voting Rights Act, and
- Reduced funding as donors and foundations have been “spooked” by “[f]ederal threats to criminalize foundations and nonprofits that focus on helping marginalized groups.”
“2024 Broke the Democrats. Can They Put Themselves Back Together?
Fascinating episode from Reveal that speaks to a range of issues of interest to readers of this Blog, from the NYC mayoral race to the appeal of Donald Trump among Latino voters to the future of VRA and the political cohesion of minority voters.
“School Choice and Household Participation in School District Politics”
A fascinating new Annenberg Institute paper from three MSU researchers on the connection between school choice and voter turnout in local bond elections. Theoretically, I can understand why sending your kid to a different school might change incentives to vote for or against a local bond, but it’s a more interesting question why it might change the incentive to vote at all.
American Law Institute, as Part of Third Restatement of Torts, Affirms that Denying or Interfering with the Right to Vote is a Common Law Tort
Both the First and Second Restatement of Torts (in Section 865) recognized that certain intentional denials or abridgment of the right to vote constitute a common law tort. This has a long pedigree, going back to England, though common law remedies have been overshadowed in more recent years by statutory and constitutional claims. Still, as I and others have argued, there is good reason to keep common law tort liability as an important backstop and deterrent.
I’m thrilled to report that today the American Law Institute approved the final set of sections for the Restatement (Third) of Torts, Miscellaneous Provisions, led by co-Reporters Nora Engstrom and Mike Green. (Disclosure: I am an advisor on this project.) Among the approved sections is Section 8 on Miscellaneous Torts. The black letter of the section reads:
§ 8. Tortious Interference with a Right to Vote or Hold Office
(a) An actor is subject to liability to a person if the actor, by a consciously wrongful act, intentionally deprives the person of the lawful right to:
(1) vote in a public election; or
(2) hold public office.
(b) An actor is subject to liability to a person if the actor, by a consciously wrongful act, intentionally and seriously interferes with the person’s lawful right to:
(1) vote in a public election; or
(2) hold public office.
One of the key Comments explains that the mental state in this section applies “when an actor, who knows or should know that another has the right to vote in a public election or to hold public office, performs a consciously wrongful and intentional act. Both prerequisites—a (1) consciously wrongful act that (2) intentionally interferes with the right to vote or to hold public office—must be shown. Prong (1), the “consciously wrongful act,” includes, but is not limited to, actions involving force, fraud, duress, false imprisonment, bribery, misrepresentation, or the abuse of an official position. Meanwhile, prong (2) requires intention to interfere with the right to vote or to hold public office. . . . By the same token, one who, merely by negligence, prevents another from voting or holding public office is not subject to liability. Nor is an actor subject to liability if the actor prevents another from voting or holding public office intentionally but as the result of a reasonable mistake of fact or law. Accordingly, when a registrar of voters refuses to permit a person’s name to be added to the voting list, reasonably believing that the person is not a resident or, for whatever other legitimate reasons, is ineligible to vote, the registrar of voters is not subject to liability because the registrar has not engaged in a consciously wrongful act.”
The section also adds that it does not address any First Amendment issues that arise “when one uses speech or other expressive conduct to interfere with the right to vote or hold public office.”
Kudos to the reporters and to ALI!
Breaking and Analysis: Federal District Court–in a Ruling Likely to Be Upheld on Appeal– Holds That Judge Griffin’s Attempt to Overturn the Results of the North Carolina Supreme Court Election Violates the Constitutional Rights of Voters and Orders Certification for Incumbent Justice Riggs
You can read the detailed analysis at this link. Here is the core holding:
The court concludes that the retroactive invalidation of absentee ballots cast by overseas military and civilian voters violates their substantive due process rights, and that the cure process violates their equal protection rights. The court further concludes that the lack of any cure process for individuals erroneously designated as Never Residents violates their procedural due process rights and represents an unconstitutional burden on the right to vote. Based on those conclusions, the State Board may not implement the stated cure process or “remove” the votes of all Never Residents “from the final count of the 2024 election for Supreme Court Seat 6.”
In the remedy portion of the order, the court orders Justice Riggs to be certified the winner. The ruling is on hold for 7 days to give Judge Griffin a chance to appeal to the 4th Circuit (and then potentially to the U.S. Supreme Court).
I expect any appeal would be rejected. Although part of the due process portion of the court’s analysis rests on Bush v. Gore, and not every court would agree on reading Bush v. Gore in this way, the due process arguments are nonetheless extremely strong even without relying on that case. And the equal protection arguments are even stronger.
The idea of retroactively changing the rules for which ballots should count—and applying those retroactive rules just selectively in places where the challenging candidate expects to gain relative votes—sure is unconstitutional in any election system that values the rule of law. The only surprise (and disappointment) here is that the North Carolina Supreme Court was willing to bless this attempted election subversion.
“Misinformed by election officials, American Samoans in Alaska now face prosecution”
When Tupe Smith heard a knock at her door on Nov. 30, 2023, she thought it was her mother-in-law coming to see her grandkids. Instead, two Alaska State Troopers stood outside. They arrested her in front of her children — and in front of the small town where she had lived and worked since 2017.
“This was the lowest point of my life,” Smith said in a prepared statement. “I never thought I would go through something like this.”
Smith was born in American Samoa, a United States territory, and moved to Whittier, Alaska, to be closer to family. A regular volunteer at Whittier’s only public school — where nearly half of the students are Samoan — Smith was encouraged by teachers and community members to run for the local school board. In 2023, she was elected with 96% of the vote.
Like many American Samoans living in Alaska, Smith said she understood that she could vote in state and local elections and, therefore, run for school board. When she registered to vote, she said election officials instructed her to check the “U.S. citizen” box on the forms, since no option was available for “U.S. nationals.”
According to the state’s argument, it doesn’t matter what officials told Smith. The court ruled that if she “knowingly and falsely claimed to be a U.S. citizen,” she could be found guilty of voter misconduct — a felony that carries up to five years in prison. In February, a petition for review of her case was granted.
“If the elections office can’t figure this out, how are election workers or American Samoans supposed to figure it out when they’re given this broad range of contradictory information?” said Neil Weare, Co-Director of Right to Democracy, the organization representing Smith in her legal defense….
See also Jonson Kuhn, Voter misconduct hearing follows solidarity event for 10 Whittier American Samoan family members charged in case, Alaska’s News Source, May 2, 2025
Michelle Theriault Boots, Dozens rally to support American Samoan family in Whittier charged with voter fraud ahead of first court appearance, ADN, May 2, 2025
“Convicted cardinal wants to vote for pope, his brother prelates must decide”
Cardinals in meetings ahead of the start of a secret conclave to elect a successor to Pope Francis are scratching the hair under their red skull caps as they try to decide whether a cardinal convicted of embezzlement and fraud can join in the vote.
Their quandary concerns Cardinal Angelo Becciu, who in December 2023 was sentenced to 5-1/2 years in jail. He was the most senior Catholic Church official ever to stand trial before a Vatican criminal court.
Becciu has denied all wrongdoing and is appealing the court’s ruling. The Italian cardinal, who is free pending his appeal, confirmed in a conversation with Reuters on Thursday night that he felt he should be allowed into the conclave.
“Long-running legal saga over N.C. Supreme Court race could pave way for future election challenges, critics warn”
Nearly six months after the North Carolina Supreme Court election took place, the contest still hasn’t been called and a winner still hasn’t been certified.
That’s almost entirely due to a barrage of litigation from Republican candidate Jefferson Griffin, who sued for more than 65,000 ballots to be thrown out after they had been cast, triggering a sprawling legal saga that is testing some of the most solid precedents of election law. The effort, if successful, could be more than enough to swing the results of the election, as Griffin currently trails Democratic incumbent Allison Riggs by roughly 700 votes.
But even if the push ultimately falls short, Griffin’s critics, who include members of both parties, say it could have long-lasting consequences and pave the way for more candidates to pursue challenges — no matter how legally questionable — to the results of elections decided by narrow margins.
“NC voters wait while a battle over ballots they cast six months ago rages”
Chris Marshall took care to cast a ballot last fall while in France tending to his business, and was surprised to find months after the 2024 election that Judge Jefferson Griffin wanted his vote thrown out.
Griffin challenged Marshall and thousands of other military and overseas absentee voters who did not provide photo ID with their ballots. The State Board of Elections did not require it. Most military and civilian overseas voters cast ballots using a special portal that does not provide a way to include a photo.
Griffin worked to have their votes in the Supreme Court race tossed, but the state Supreme Court said they should have a chance to submit IDs.
Now back home in Durham, Marshall and his wife Moira Smullen tried to address the problem by checking to see if they could submit photos using the same electronic portal they used to vote. They couldn’t.
“Right now, it’s just wait and see what happens,” he said.
“Nearly 2,600 incarcerated people voted in Colorado last year under new law”
It was a Sunday in late October 2024 when Jesus Rodriguez, then 29, voted for the first time.
He voted in person for the presidential and state races, but his polling place wasn’t at a church, school or community center – it was inside the Jefferson county jail in Colorado.
“It will be one of my top five experiences being able to vote,” Rodriguez said in a video the Jefferson county sheriff’s office shared on social media. “I guess one vote means everything, so I would say that it made me feel good to know that my opinion matters.”
The Jefferson county sheriff’s office said about 125 inmates voted in person on the same day as Rodriguez and that the temporary polling place was the result of a state mandate to expand voting access while in confinement.
“These states want to adopt the SAVE Act: How could some married women be impacted?”
Dozens of states across the country are considering their own versions of a federal voting bill critics say could disenfranchise millions of Americans, including many married women.
Republican lawmakers in 24 states introduced measures requiring people to prove their citizenship, using documents such as birth certificates or passports, when they register to vote, according to the nonpartisan Voting Rights Lab. Three other states – Louisiana, New Hampshire and Wyoming – have enacted similar laws in recent months.
Supporters call the efforts a security measure and say they’re trying to reinforce laws barring noncitizens from voting. But voting rights advocates argue it’s already exceedingly rare for noncitizens to vote – and the laws could make it more difficult for millions of Americans to cast a ballot.
Opponents are particularly concerned the requirements will hit rural communities, military personnel and married women. About 83% of married women changed their name, and for many that means their birth certificates don’t match their current ID.