Category Archives: voting

The year to date: “14 states have enacted laws making it harder to vote, while 23 states have enacted laws making it easier.”

Voting Laws Roundup: October 2023, published by the Brennan Center, offers an overview of the trends in election law around the country. There is good news, including:

  1. “Nearly half of all states enacted at least one expansive voting law this year.”
  2. “At least four of those states — Michigan, Minnesota, Nevada, and New Mexico — enacted multiple expansive voting laws or an omnibus pro-voter law in 2023.”

And there is bad news, including:

  1. 14 states have adopted restrictive laws.
  2. North Carolina legislature has passed a law restricting voting access and another “undermin[ing] election administration.”
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Fascinating Election Law Issue Raised in Petition for Review to California Supreme Court

The Petition for Review in Alliance San Diego v. City of San Diego raises a very interesting issue:


1. The City of San Diego (the “City”) held an election on an initiative proposing a special tax (Measure C) on the express condition and with the uncontradicted public understanding that a two-thirds majority vote of the electorate was required for its passage. The measure undeniably failed to garner enough “yes” votes to meet that threshold, yet after the votes were cast and counted, the City declared that the measure had actually passed by a simple majority vote. May a city change the outcome of an election by lowering the applicable vote threshold after the election had already been completed?

2. The Elections Code requires that a city council “declare the results” of an election on a ballot measure “no later than the next regularly scheduled city council meeting following presentation of the 28-day canvass of the returns, or at a special meeting called for this purpose.” (Elec. Code, § 10263, subd. (b); see also Elec. Code § 15400.) Here, the City Council waited a full year after receiving the canvass of the returns before declaring that Measure C had passed under a lower vote threshold than stated in the City Clerk’s certification. Does a city have the discretion to delay declaring whether a measure has passed or failed, and to contravene the official certification of the election results by the impartial elections official?

I’ll be watching this one closely.

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Litman: “Anti-Novelty, the Independent State Legislature Theory in Moore v. Harper, and Protecting State Voting Rights”

As soon as I read Justice Kavanaugh’s concurring opinion in Moore v. Harper, I thought of Leah Litman‘s scholarship on novelty and how Kavanaugh’s proposed rule, if it becomes law, would deter the growth of state constitutional law protecting the right to vote. I asked Leah if she wanted to flesh out this idea, and she wrote this guest post:

The Supreme Court’s decision in Moore v. Harper left much to be determined at a later date. One of the TBD issues is whether the Court will adopt an anti-novelty version of the independent state legislature idea, which could thwart democracy, the development of the law, and the promise of state courts and state constitutions.

In the final week of the term, the Supreme Court released the opinion in Moore v. Harper, in which it rejected the most extreme and maximalist version of the independent state legislature (ISL) theory/fan-fic/thing (or whatever you might call it). The most extreme version of ISL was the one that maintained that state courts could never enforce state constitutional provisions against state legislatures in cases involving state law regulating federal elections, or (relatedly) that state courts could not enforce some subset of state constitutional provisions (substantive provisions, general ones, or some other category). In Moore, 6 Justices rejected that theory and two (Justices Thomas and Gorsuch) embraced it.

But there has been a wide range of views about whether or to what extent Moore rejected other versions of ISL, including the version espoused in Chief Justice Rehnquist’s concurring opinion in Bush v. Gore. In Bush v. Gore, Chief Justice Rehnquist, writing for himself, Justice Thomas, and Justice Scalia, had maintained that the federal constitution allows federal courts to review state courts’ interpretation of state laws (in that case, statutory law) in fairly nondeferential ways such that the federal courts would essentially be deciding anew whether the state courts interpreted state law correctly.

The Chief Justice, in the majority in Moore, recounted how the different opinions in Bush (in particular, the dissents and Chief Justice Rehnquist’s concurrence) had pushed different legal rules about when federal courts could review state courts interpretation of state laws regulating federal elections. But aside from noting that “state courts do not have free rein,” and that state courts “may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections,” the Chief Justice’s opinion in Moore did “not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause.” Nor did it assess whether the North Carolina Supreme Court had violated whatever the legal test is when the North Carolina Supreme Court struck down the North Carolina legislature’s maps as violating the state constitution (the North Carolina Supreme Court subsequently held partisan gerrymandering claims nonjusticiable after the Court’s composition changed in the midterms).

Justice Thomas’s dissenting opinion in Moore raised some concerns about the majority’s decision to leave this issue unresolved. In the final section of his dissent (joined only by Justice Gorsuch), Justice Thomas wrote that “it is impossible to be sure what the consequences of” the majority’s “interpretation will be.” The majority’s opinion, he wrote, “opens a new field for Bush-style controversies over state election law—and a far more uncertain one,” and he expressed a “fear that this framework will have the effect of investing potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by federal courts.”

Justice Kavanaugh’s concurring opinion in Moore sought to provide some additional guidance about what he thought the standard for federal courts reviewing state election laws would ultimately be. He specifically embraced Chief Justice Rehnquist’s standard from Bush v. Gore, under which federal courts would ask whether the state court “impermissibly distorted” state law “beyond what a fair reading required.” And to apply that standard, Kavanaugh wrote, he would rely on Chief Justice Rehnquist’s guidance that in reviewing state court interpretations of state law, federal courts “necessarily must examine the law of the State as it existed prior to the action of the [state] court.”

This formulation has echoes of the anti-novelty principle that the Supreme Court has applied in constitutional law cases about the scope of Congress’s powers, and in administrative law cases about the scope of agencies authority under federal law. In those cases, the Court treats novelty as a mark against the lawfulness of a federal law or federal regulation. In constitutional law cases, if the statute is new, then the Court has said that can be a sign that the statute exceeds the scope of Congress’s powers under Article I, violates the Tenth Amendment, or impermissibly interferes with the President’s powers under Article II. And in administrative law cases, if the regulation is new, then the Court has said that that can be a sign that the regulation is ‘major,’ and accordingly requires specific, explicit authorization from Congress.

In prior scholarship, I’ve tried to debunk that anti-novelty principle as it is used in both assessing the scope of Congress’s powers and in assessing the scope of federal agencies authority. (The latter in a co-written piece.)

It’s concerning that the Court might be on the cusp of importing an anti-novelty principle into how federal courts review Elections Clause challenges to state courts interpretation of state laws regulating federal elections. For one thing, an anti-novelty version of ISL impedes a natural way in which law develops—by parties making new arguments, supported by new evidence, and new theories. There will always be a first time when a particular state court finds a partisan gerrymandering claim justiciable. Would the anti-novelty version of ISL bar that? It shouldn’t, but as always with this Court, TBD. There will also always be a first time for every kind of state court challenge to state election laws, including when a state legislature adopts a new or different kind of law regulating federal elections. Would the anti-novelty version of ISL bar a state constitutional challenge to a state law announcing that the state legislature gets to throw out ballots it doesn’t like? It shouldn’t, even if that case would raise a first of a kind challenge to a first of a kind law. The point is that the Elections Clause should not operate as some kind of bar on state courts adjudicating new or different kinds of claims or reviewing new or different kinds of theories or invalidating new or different kinds of state laws.

The anti-novelty version of ISL is especially troubling because it has the potential to undermine the state courts’ relationship with the people and state voters. Many state courts, unlike their federal counterparts, are elected and subject to elections. That system provides one mechanism for democratic feedback between state courts and the people; the anti-novelty version of ISL could thwart or undermine democracy if it prevents people from using judicial elections to try and change the direction of the law and the direction of the state courts.

Take the recent election that resulted in the WI Supreme Court having a majority of progressive, liberal nominees for the first time in awhile. In that election, the candidates talked about whether Wisconsin’s extremely gerrymandered maps were rigged (Dan Kelly, who lost the race, had been involved in defending the gerrymandered maps). Would the anti-novelty ISL bar the Wisconsin Supreme Court from rethinking the Court’s prior jurisprudence embracing rigged maps and prior writings in which 3 Justices indicated they would throw out votes in Milwaukee as part of the effort to challenge the results of the 2020 election? Again, it shouldn’t, but it’s hard to know where this Court might take such a principle.

More generally, the anti-novelty version of the ISL is at odds with what Miriam Seifter and Jessica Bulman-Pozen have called the “democracy principle” in state constitutions. That principle, they explain, is one that ensure that state constitutions and state courts and state offices more generally will be responsive to the people. And as people’s views change – say by recognizing the danger from partisan gerrymandering or the danger from voter suppression or what not – the democracy principle ensures that state courts and state constitutions register those views. But a strong anti-novelty version of ISL might be used as a way to prevent state courts from changing the law or moving its direction.

Only Justice Kavanaugh wrote to embrace Chief Justice Rehnquist’s concurrence, and the anti-novelty bent of that concurrence in particular. Let’s hope no one else is drawn to the siren song of anti-novelty in this area too.

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“A Delaware city is set to give corporations the right to vote in elections”

CBS News:

The state of Delaware is famously business-friendly. With more than 1.8 million entities registered in the First State, companies outnumber its human residents by nearly two-to-one. 

One city is now moving to raise businesses’ influence in the state even further, with a proposal to grant them the right to vote.

Seaford, a town of about 8,000 on the Nanticoke River, amended its charter in April to allow businesses — including LLCs, corporations, trusts or partnerships — the right to vote in local elections. The law would go into effect once both houses of Delaware’s state legislature approve it.

The proposal has rekindled a debate over how much power corporations should have in local government, with fierce opposition from civic interest groups who say businesses already wield too much influence over politics.

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“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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