Category Archives: voting

“Under the Radar, Right-Wing Push to Tighten Voting Laws Persists”

N.Y. Times article bout a second, concerted wave of republican-sponsored legislative efforts to restrict voting, funded by “billionaire-backed advocacy groups” allied with Trump. The key point is that this new wave is based on a strategy of “radical incrementalism”–an effort to make changes without grabbing attention. Their next target: rank-choice voting.

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“Voter Registration in 2022 Highest in 20 Years for Congressional Elections”

The Census Bureau released voting and registration toplines from the Current Population Survey today.

[Serious data nerd voice] I’ll confess to a longstanding pet peeve with the way that these results are inevitably reported, including by the Bureau itself in the post linked above. 

The Bureau’s survey asks whether Americans voted and whether they were registered.  In the 2022 results, 52.2% of voting-age citizens said they voted, 31.3% said they didn’t, and 16.5% didn’t respond.  Similarly, 69.1% of voting-age citizens said they were registered, 13.9% said they weren’t, and 17% didn’t respond.  (All of these are subject to the usual caveats about survey data.)

The Census Bureau reports this as 52.2% voter turnout and a 69.1% registration rate.  But for that to be right, all of the nonresponses would have to be “no”s.  More precisely, 52.2% of voting-age citizens said they voted, and some portion of the 16.5% who didn’t answer probably also voted.  (Or to put it another way, 62.5% of those answering the question said they voted, and 83.2% of those answering the question said they were registered.)

None of this matters if you’re just using the Census Bureau reports to compare rates year over year, to evaluate 2022 in light of 2018 or 2014, etc.  But people misuse Census data All. The. Time.  Including claims of fraud based on local results that exceed the turnout and registration rates reported by the Census.  And the fact that these results are inevitably reported as something other than what they actually show doesn’t help.

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AALS Conference on Defending Democracy

The Association of American Law Schools has announced a virtual Conference on Defending Democracy, May 4 from 11am-4pm ET:

The Conference will consist of three panels focusing on the following topics: 1) the State of the Union three years following the January 6 insurrection; 2) the role legal education plays in defending democracy; 3) and identifying the challenges to our democracy that are specifically rooted in Election Law.

It’s a star-studded event: Dean Mark Alexander, AALS President and host for the day, will be moderating the first panel with Deans Kevin Johnson, Kimberly Mutcherson, and Andrew Perlman; Dean Erwin Chemerinsky will be moderating the second panel with Dean Danielle Conway, Dean Anthony Crowell, Prof. Kate Shaw, and Dean Dan Tokaji; and I’ll be trying not to embarrass myself moderating the third panel with Prof. Guy-Uriel Charles, Prof. Franita Tolson, and FEC Commissioner Ellen Weintraub.

Hope you can join us! More information, including a link to register, here.

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“The Unabridged Fifteenth Amendment”

Looking forward to reading this piece from Travis Crum (forthcoming, Yale Law Journal). Here is the abstract:

In the legal histories of Reconstruction, the Fifteenth Amendment’s drafting and ratification is an afterthought compared to the Fourteenth Amendment. This oversight is perplexing given that the Fifteenth Amendment ushered in a brief period of multi-racial democracy and laid the constitutional foundation for the Voting Rights Act of 1965. This Article helps to complete the historical record and provides a thorough accounting of the Fifteenth Amendment’s text, history, and purpose.

This Article situates the Fifteenth Amendment within the broad array of constitutional provisions, federal statutes, fundamental conditions, and state laws that enfranchised—and disenfranchised—Black men during Reconstruction. This Article then performs a deep dive into the congressional debate, cataloguing every version of the Amendment that was voted on. It next turns to the ratification debate, an intense partisan affair that culminated in Congress compelling four Southern States’ ratification as part of their re-admission to the Union.

Rather than answer today’s doctrinal questions, this Article’s focus is on the issues debated by the ratifying generation. The Reconstruction Framers were united in their goal of enfranchising Black men nationwide, but they were deeply divided over how best to achieve that goal and whether other disenfranchised groups—such as women, Irish Americans, and Chinese immigrants—should be covered by the Amendment as well. In addition, the Reconstruction Framers debated whether and how the Amendment could be circumvented and whether officeholding should be explicitly protected.

This Article argues that the Fifteenth Amendment’s original understanding went beyond forbidding facially discriminatory voting qualifications; it also prohibited the use of racial proxies and, albeit less clearly, protected the right to hold office. But more fundamentally, the Fifteenth Amendment rejected the original Constitution’s theory of democracy, which delegated to States the authority to decide who deserved the franchise based on whether they had a sufficient stake in the community or their interests were virtually represented. In short, the Fifteenth Amendment is the first constitutional provision that embraced the idea that the right to vote is preservative of all other rights.

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A two-track election administration complication for non-citizen voting in the District of Columbia

In the fall of 2022, the District of Columbia enacted a law that permitted residents who were not United States citizens to vote in local elections. Local voting opportunities for non-citizens have been the source of some recent expansion and litigation, with many interesting questions about participation in democracy. And DC is no different. The House recently voted to disapprove of this law by a 260-162 vote, although its fate in the Senate and before the President is much less clear.

But I wanted to highlight a unique election administration challenge for DC. Federal law prohibits non-citizen voting in federal elections, including the selection of presidential electors and the delegate from the District of Columbia. The DC law doesn’t change that or challenge that. But DC is in a position that most localities aren’t when they administer elections for non-citizens in local elections. For this, let me highlight the testimony from the Executive Director of the District of Columbia Board of Elections, Monica Evans, last fall:

Continue reading A two-track election administration complication for non-citizen voting in the District of Columbia
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“Voting Rights in Corporate Governance: History and Political Economy”

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.

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Congrats to this year’s AALS Section on Election Law award winners

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

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Monopoli on the Nineteenth Amendment

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.

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New Report from the Brennan Center

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.

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Rank Choice Voting: A Scaleable Reform?

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.

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“Judge upholds Georgia election laws on all counts in voting rights case”

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.

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“Where Democrats’ Grip on Minority Voters Could Slip in Midterm Elections”

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.”

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