Tag Archives: New Scholarship

Rebecca Green, “Administering Election Disputes”

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Greetings, I’m honored to join the roster of contributors here at ELB. I’ve long been a fan. Normally I forward my new scholarship to Rick to post. Flush with newfound power, here’s my latest (full draft posted on SSRN, abstract below):

U.S. election administration has become supercharged with controversy. A process that should be mundane—casting and counting votes—has become the target of relentless litigation, much of which ends in non-merits rulings that perpetuate rather than resolve public concerns. The high volume of election litigation is costly, strains election officials, and risks eroding public trust in both elections and the courts. Recognizing the need to resolve election claims fairly and efficiently, Administering Election Disputes examines administrative remedies as an under-theorized alternative to judicial resolution. Increased use of well-designed administrative election dispute resolution (AEDR) processes could reduce pressure on courts, deliver faster and more durable remedies, and cost far less. The article begins by explaining why many election disputes are ill-suited for judicial resolution. Through the lens of largely overlooked state administrative complaint procedures mandated by the Help America Vote Act (HAVA), it then catalogues state HAVA AEDR models. After noting drawbacks of AEDR and procedural hurdles that deter its use, it closes by identifying five core design features necessary for AEDR to serve as a credible alternative to litigation. While AEDR cannot cure the deep dysfunction of post-2020 election conflict, Administering Election Disputes offers a practical, off-the-shelf framework to channel and contain it.

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New Book: Rewiring Democracy: How AI Will Transform Our Politics, Government, and Citizenship

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Rewiring Democracy: How AI Will Transform Our Politics, Government, and Citizenship (MIT 2025) by  Bruce Schneier and Nathan E. Sanders lays out a broad account of the myriad ways AI is likely to reshape democracy and governance.

“AI’s impact on democracy will go far beyond headline-grabbing political deepfakes and automated misinformation. Everywhere it will be used, it will create risks and opportunities to shake up long-standing power structures.

. . .

The authors describe how the sophistication of AI will fulfill demands from lawmakers for more complex legislation, reducing deference to the executive branch and altering the balance of power between lawmakers and administrators. They show how the scale and scope of AI is enhancing civil servants’ ability to shape private-sector behavior, automating either the enforcement or neglect of industry regulations. They also explain how both lawyers and judges will leverage the speed of AI, upending how we think about law enforcement, litigation, and dispute resolution.”

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Fusion and the Freedom to Associate to a Better Politics–New Jersey’s Highest Court Has A One-Time Opportunity

ballot access, political polarization, third parties, , , ,

A bipartisan ABA Task Force on American Democracy recently endorsed the relegalization of fusion voting as a political reform with significant potential “to combat hyper-partisan polarization and the gridlock in governance that such polarization produces.” State courts have a one-time opportunity to make this happen with legal challenges to existing fusion bans pending in New Jersey, Kansas, and Wisconsin. And New Jersey’s highest court has the opportunity to lead the way. But these courts will have to be persuaded that intervention would be a genuine vindication of individual rights, not an instance of judicial activism in favor of a different set of, admittedly, better election rules.

In Fusion and the Freedom to Associate to a Better Politics, recently presented at a symposium of the Kansas Law Review, and now posted on SSRN, Michael L. Thomas, Jr. and I explain how courts should understand the constitutional burdens of anti-fusion laws and why the analysis in Timmons v. Twin Cities Area New Party (1997) is thin and unpersuasive.

The associational lens, we argue, provides the sharpest take on the constitutional harm. In this post, I offer a preview of the argument at its most basic level in the hopes that this will be intriguing enough to encourage people to read the full article.

Anti-fusion laws infringe on a ballot-qualified minor party’s freedom to associate with its top-choice candidate.

Anti-fusion laws block minor parties from nominating (associating) with their preferred candidate when the candidate is also the candidate of a major party. Anti-fusion laws, thus, essentially force ballot-qualified minor parties to run their second-best friend (or no friend at all). This, we argue, is a direct interference with the constitutionally guaranteed freedom of association. Just as each of us treasures whom we associate with, so too a party cares, and has a basic right to choose, who it associates with through its ballot line.

The associational infringements deepen when we consider the rationale: Anti-fusion laws deprive minor parties of the right to run their best friend because, apparently, three is a crowd. Surely, however, if all parties agree to work together, three is not a crowd, but a political alliance.

The state’s move is particularly pernicious if we consider that our system was explicitly designed to ensure that a numeric minority would not be able to exercise political power unless it formed political alliances to ensure majority support. Remember our dear framer, James Madison, in Federalist No. 10.

By preventing minor parties from forming such alliances, anti-fusion laws undercut a minor faction’s only path to political responsiveness: by alliance. Indeed, political alliances through fusion have been the primary way that minor parties have historically vindicated their interests: abolition, maximum hour laws, the Australian ballot and other democratic reforms, to name just a few. Indeed, it was through fusion that the Populist movement reshaped American politics throughout the West in the late nineteenth century.

Anti-fusion laws also infringe the associational freedom of individual voters.

Anti-fusion laws arbitrarily prevent voters from associating with a viable candidate without associating with a major party they despise. Where a state bars fusion, voters who align politically with a minor party are forced to choose between:

  • “wasting” their vote on the minor party’s SECOND-BEST CANDIDATE or
  • casting their vote for A COMPETITIVE CANDIDATE on the line of A MAJOR POLITICAL PARTY, they don’t align with.

A rational voter is going to choose the latter. The only other alternative is to opt out entirely.

Anti-fusion laws thus arbitrarily deprive voters of “[t]he right to associate with the political party of [their] choice;” a right, the Court, in Kusper v. Pontikes (1973), recognized as “an integral part of . . . constitutional freedom.”

Today, these associational burdens fall heaviest on independents, the largest self-identified group in national party identification polling. Fusion, by contrast, allows for a genuine freedom of association. It allows individual voters to associate with their true political allies, while still backing viable candidates. Moreover, by empowering voters to both register for and cast their ballots in support of candidates on the minor party line, it promotes clarity about their preferences in ways that enhance democratic responsiveness and accountability.

Anti-fusion laws also place a direct burden on the ability of ballot-qualified minor parties to manifest their true associational strength.

Anti-fusion laws artificially depress the true associational strength of an already ballot-qualified minor party while hindering its capacity to grow. Anti-fusion laws ensure that election results never accurately reflect the minor party’s real level of support, thereby impeding the ability of political parties to gain supporters (candidates, donors, voters) or form coalitions.

To be clear, the problem is not that fusion gives minor parties a lift up; it is rather that anti-fusion laws artificially depress minor party association.

These are severe burdens on the freedom of association, rendering anti-fusion laws unconstitutional whether a court chooses to apply strict scrutiny or the more forgiving Anderson-Burdick test. The U.S. Supreme Court’s contrary decision in Timmons is based on a misunderstanding of the rights and burdens at stake in these cases.

While the lower courts in the state litigation have followed Timmons’ misguided approach, we hope that state supreme courts will do better. Striking down anti-fusion bans would empower the many in the electorate who feel unrepresented by the two major parties, and offer a realistic opportunity for independent and unaffiliated voters to build political power through non-spoiler minor parties within the confines of the American two-party system. But it would also be legally right: Anti-fusion laws unconstitutionally infringe on fundamental and constitutionally protected rights of political association.

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With the VRA on life-support, now is the time to reconsider goals and tactics

Voting Rights Act

The Supreme Court’s decision to set Louisiana v. Callais for reargument next term suggests that the Voting Rights Act’s respite from the conservative Court’s attacks is likely over. It is, therefore, time for those who remain committed to the United States as a multiracial democracy to start reimagining our goals and tactics. Toward that end, I offer some food for thought and a preview from a chapter I recently completed that will appear in Race, Racism, and the Law (Aziza Ahmed & Guy-Uriel E. Charles, eds., forthcoming 2026). The chapter makes a few points.

An increasingly conservative Supreme Court and an evolving political landscape require a reassessment of our goals and tactics in the continued fight for an inclusive multiracial democracy.

The Roberts Court is not just a reluctant enforcer of the openness of the political process, but a hostile policer of congressional efforts to do so. The gutting of the VRA is a manifestation of this trend. Voting rights activist must reconcile themselves to having lost their most important political ally in the fight for a multiracial democracy as it was conceived in the mid-twentieth century.

But the need for reevaluating goes beyond the conservative Court. The VRA and the related priorities of the voting rights community are increasingly mismatched with how race continues to influence politics and with evolving conceptions of race.

Taking the latter point first. As Americans increasingly operate with broader understandings of race, there are genuine questions about how relevant the categories that defined voting rights jurisprudence under the VRA will be in the future. The twentieth-century version of race, which “divide[s] us all up into a handful of groups,” is increasingly incongruous with the fact that “American families have become increasingly multicultural.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 293 (2023) (Gorsuch, J., concurring). Americans appear to agree with Chief Justice Roberts that the typical racial “categories [on various forms] are themselves imprecise in many ways . . . [sometimes] plainly overbroad.” Id. at 216 (Roberts, J.)

This concession does not require accepting the conservative Court’s colorblind vision of the Constitution or its belief that an entirely white legislature would be legitimate so long as there were no formal barriers to electoral participation. Still, we would be remiss not to consider the evolving ways in which race matters to politics: discrete categories often matter less than shared intersectional experiences of racial and economic oppression.

Third and most importantly, we need to reconsider our tactics and expand our thinking in our fight for a more inclusive multiracial democracy. Failures to address enduring economic and social inequality, far more than the remaining formal and informal barriers to voting, are the primary obstacles to realizing an inclusive multiracial democracy.

The chapter makes the case for each of these claims—most importantly the third—and argues that, given these realities, a new paradigm for change should measure progress in terms of the policy returns to voters of color of their political participation. This means prioritizing building political power through political parties with a focus on party-centric reforms to revitalize our party system. In recognition of the skepticism with which voting rights advocates and the communities they represent are likely to approach a call that involves working with political parties, the chapter devotes significant attention to the promises and pitfalls for communities of color of more fully embracing a party-centric power-building strategy in the fight for a meaningfully inclusive multiracial democracy.

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New Article: “The Brave New World of Judicial Elections: What We Know and What We Don’t”

judicial elections

Charles Gardner Geyh (Indiana University Maurer School of Law) has posted this new article on judicial elections on SSRN:

In this essay, I begin with a discussion of established legal theory, which elucidates the difficulties created by calling upon judges to interpret and apply the law in a democratic republic. Next, I synthesize the scholarship, spanning thirteen books, that explains, defends, and critiques the modern era of judicial elections. Read synthetically, this body of work provides a well-developed, three-dimensional understanding of judicial elections at the turn of the 21st century. At the epicenter of the developments that this literature analyzes are battleground states where well-financed interest groups poured money into supreme court races to people high courts with judges whose perspective on tort liability was simpatico with that of their campaign supporters. That literature also reveals that tort reform campaigns in state judicial races later peaked as spending tapered off in the 2010s, signaling a lull in what leading, good-government interest groups denominated the “new politics of judicial elections.  I argue that this lull ended with the 2023 Wisconsin Supreme Court election, which heralded the arrival of a new generation of judicial elections in which state supreme courts are becoming war-torn forums for the resolution of deeply divisive policy questions that the federal courts and the political branches of government have been unwilling or unable to address. It is a development that portends to be of unprecedented intensity and poses new challenges for legal theory and the existing judicial elections literature to explain. And it adds new urgency to an increasingly stark choice: whether to fight to preserve the distinctive role that judiciaries have long played in interpreting and upholding the rule of law; or to acquiesce to a new world order in which judges are politicized actors responsive to their constituencies in ways traditionally associated with the other, so-called “political” branches of government.

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New Paper–“An Internet Voting System Fatally Flawed in Creative New Ways”

voting technology

Andrew W. Appel (Princeton, Computer Science) and Philip B. Stark (UC Berkeley, Statistics) have a new paper cautioning about a new software designed to accelerate the count for overseas votes by relying on the internet.

. . . . The enunciated motivation for the [“MERGE”] protocol is to allow (electronic) votes from overseas military voters to be included in preliminary results before a (paper) ballot is received from the voter. MERGE contains interesting ideas that are not inherently unsound; but to make the system trustworthy–to apply the MERGE protocol–would require major changes to the laws, practices, and technical and logistical abilities of U.S. election jurisdictions. The gap between theory and practice is large and unbridgeable for the foreseeable future. . . .

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“Historians and the Strange, Fluid World of Nineteenth-Century Politics”

third parties,

ERIK B. ALEXANDER AND RACHEL A. SHELDEN have published a blog post reflecting on the significance of their recent article, which I mentioned a few weeks back in a post on the history of third parties in the United States.

For more than half a century, historians have relied (often implicitly) on a model of organizing U.S. political history around distinct and separate “party systems,” pitting two competitive, stable, national parties against one another for long stretches of time between short bursts of realignment. In the context of the shifting political landscape of 1868, however, explaining the partisan politics of the Johnson impeachment through the party system model is the equivalent of forcing a square peg into a round hole.

They then apply this to Andrew Johnson’s impeachment vote.

How, then, are we to understand the partisan breakdown of the 1868 vote to impeach? If we conflate the Union Party with the Republican Party, was Johnson a Republican? He may have flirted with the Democrats in pursuing a revived Union Party, but he was not a Democrat. And while Democrats certainly supported Johnson’s vision for Reconstruction over that of the Republicans, they did not view him as a member of their party either. In other words, including Johnson in any kind of accounting of the partisan politics of impeachments is confusing at best.

. . . .

We argue that it is high time to shed the confines of that model. Nineteenth-century politics are better described as fluid, unstable, and federal, operating through a series of mechanisms—networks, newspapers, customs, and laws—unique to that era. Political actors used these mechanisms to address the most pressing ideological and constitutional conflicts of their era, often in concert with broader political activism. They could quickly organize new parties to address problems as they arose, and just as quickly discard parties when the issues were resolved (or when absorbed by another party). In this way, parties were deeply integrated into the broader fabric of American political life, rather than serving as its organizing structures.

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A Justice’s Perspective on Moore v. Harper

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Justice Scott Kafker of the Massachusetts Supreme Judicial Court and his co-author Simon Jacobs have published a new article, The Supreme Court Summons the Ghosts of Bush v. Gore: How Moore v. Harper Haunts State and Federal Constitutional Interpretation of Election Laws, 59 Wake Forest L. Rev. 61 (2024).

There is a dangerous lack of clarity in the Supreme Court’s recent decision in Moore v. Harper, which held that state supreme courts’ interpretations of their state election laws are subject to review and reversal in federal court when “they transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislature to regulate federal elections.” By resurrecting the reasoning of Bush v. Gore, with particular emphasis on the concurrence by Chief Justice Rehnquist, the Supreme Court risks unleashing the same chaotic reaction to the judiciary caused by the original decision.

But this is not necessary. In our view, the original understanding of the Elections Clause provides for a very limited form of additional federal oversight. The provision does not authorize the Supreme Court to substitute its judgment for state courts on the meaning of state election statutes or state constitutions, as Chief Justice Rehnquist did in Bush v. Gore. Nor does it authorize an open-ended inquiry into what it means to transgress the ordinary bounds of judicial review, as there is no consensus on the Supreme Court or other courts on what that means. It also does not prevent state courts from providing greater protection of voting rights than that provided by state legislatures or the federal Constitution when such rights are granted by the state constitution. Nor does it impose a particular interpretive methodology on state courts in interpreting their constitutions or the federal constitutional conception of separation of powers or stare decisis. It only prevents state courts from performing the function of state legislatures, as the state legislatures are expressly responsible under the federal Constitution for prescribing the time, place, and manner of elections, subject to state constitutional review. Justice Souter’s dissent in Bush v. Gore encapsulates the overreach at issue. State courts may not create new election laws untethered to the legislative act or state constitutional provision in question. Such fundamental rewriting of the election laws, and usurpation of the legislative function is forbidden.

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Travis Crum Reviews “The Court v. The Voters”

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Travis Crum (Wash U) reviews Joshua Douglas’ new book in the Washington Monthly.

“The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights is essential for anyone who wants to understand the Supreme Court’s role in setting the rules of our democracy and what threats loom this year’s elections. As a professor of constitutional law and voting rights, I will recommend Douglas’s book to my students who are looking for a primer on election law. Here are five key takeaways from Douglas’s book.”

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Out Today: “The Court v. The Voters”

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Joshua A, Douglas‘ new book, “The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights” offers an accessible look at the erosion of voting rights and its implications for democracy. Focusing on nine major Supreme Court cases, Douglas demonstrates the erosion of meaningful protections for the right to vote before turning to offer some legislative proposals for reversing this course. There is a nice review in Salon. Very much looking forward to reading it.

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New Podcast: Alex Keyssar on why we still have the Electoral College

electoral college

In a new episode of Democracy Paradox sponsored by the Ash Center, Justin Kempf sat down with Alex Keyssar to discuss his book Why We Still Have the Electoral College?— and what the future holds for this archaic institution. Keyssar explores the history behind efforts to reform the Electoral College, how the different sides of the debate changed over time, and why reformers have repeatedly failed in their efforts.

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“Assembly as Political Practice”

academic freedom, First Amendment theory

Columbia’s actions this past week, especially its decision to invite the NYPD onto campus, have prompted me to post a new chapter, “Assembly as Political Practice,” forthcoming in the Oxford Handbook of Peaceful Assembly (Tabatha Abu El-Haj, Michael Hamilton, Thomas Probert & Sharath Srinivasan, eds.). Recent events highlight the interrelationship between protest politics and electoral politics, the rise of a new McCarthyism focused on educational institutions, its power, but also the pervasive devaluing of it as a form of politics. Most disheartening to me personally is the widespread perceived reasonableness of Columbia’s actions including among First Amendment scholars. It stems, in my view, from a misconception of assembly as a lesser form of speech and an inclination to over estimate the risks of disorder.

“[A]ssemblies come in a range of . . . forms, including annual parades, smaller political protests, and weekly gatherings of social groups. All these forms of assembly sustain and reinforce the capacity for democratic politics, and their value does not turn on their expressive ends alone. Both the possibility of effective democratic politics, and a proper construction of the right of peaceful assembly, demand that we recognize the value of assembly, as assembly, and its latent and constitutive political functions.”

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“The Associational Rights of Political Parties”

cumulative voting, political parties, primaries, third parties

Sharing a chapter I have written for The Oxford Handbook of American Election Law (Eugene Mazo, ed.) (2023, forthcoming). The chapter, among other things, stresses the ways that the U.S. Supreme Court’s current approach to the associational freedom of political parties significantly constrains party reform strategies. Given the manifest need for party regulation in the interest of a healthy democracy and the recent buzz around Lee Drutman’s report and op ed arguing for more and better parties, this seems a good time to share.

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New Issue: Fordham Law Voting Rights and Democracy Forum

redistricting, Uncategorized, ,

Tired of the 24 hour news cycle? Check out the final issue of the inaugural Fordham Law’s Voting Rights and Democracy Forum. With articles written by both established scholars in the field and JD candidates, it is a refreshing change of pace. Richard Briffault argues that New York’s first round of independent redistricting was an “epic fail.“

“In 2014, following passage in two successive legislatures, New York voters ratified amendments to the state constitution to change both the process and substantive rules governing the decennial redistricting of the state’s legislature and congressional delegation. . . . . Sadly, the new process employed in the 2022 redistricting was an epic fail. This Essay examines the first test of this new constitutional procedure and contends that the IRC, the state legislature, and the subsequent judicial intervention, all flunked it.”

Other crisp and timely articles in the volume include:

Voting Rights and the Electoral Process: Resolving Representation Issues Due to Felony Disenfranchisement and Prison Gerrymandering

Third Parties and the Electoral College: How Ranked Choice Voting Can Stop the Third-Party Disruptor Effect

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