“Voter Intimidation: Forging a Judicial Standard”

chicanery, Voting Rights Act

Ben Goldstein has written this article for the Journal of Law and Politics. Here is the abstract:

In the last few years, federal courts have seen a notable increase in voter intimidation cases. Empirically, instances of voter intimidation, whether litigated or not, may be increasing as well. After briefly offering explanations for this trend, this Article reviews federal laws aimed at voter intimidation, especially Section 11(b) of the Voting Rights Act. It then considers how courts can reconcile First Amendment speech protections with the need to regulate conduct that interferes with voting, drawing lessons from two recent lawsuits in the 2022 midterm elections
in Arizona.


Rather than solely balancing competing individual rights, courts should embrace a more expansive conception of the governmental interests at stake in voter intimidation cases. In particular, courts should recognize that voting is a separate sphere of civic life—a unique method of public decisionmaking distinct from day-to-day public discourse. As such, the act of voting merits stricter levels of protection than the laissez-faire system governing public discourse.


This Article also suggests that in our post-pandemic era of extended voting, a regime requiring narrowly tailored speech restrictions may be inadequate to safeguard voters from intimidation and interference. Given voting’s essential role in democratic self-governance, courts should not hesitate to enjoin intimidating conduct under Section 11(b), even absent a showing of subjective intent or threatened physical violence. Furthermore, courts should evaluate alleged intimidation not in isolation, but in light of its broader historical and social context and its actual impact on voters.

This looks to be an important piece.

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“The D.N.C.’s New Leader Seeks to Curb Dark Money Influence in 2028 Primaries”

campaign finance, campaigns

NYT:

Ken Martin, the Democratic National Committee chairman, is taking a symbolic step toward curbing the influence of undisclosed and corporate funds in his party’s 2028 presidential primary, a move that is likely to instigate a broader conversation about the role of big money in Democratic politics.

Mr. Martin’s proposal, which was included in a packet of documents to be sent to D.N.C. members that was obtained by The New York Times, seeks to have a new reforms committee propose “real, enforceable steps the D.N.C. can take to eliminate unlimited corporate and dark money in its 2028 presidential primary process” by the summer of 2026.

The move is the first significant maneuver from Mr. Martin to shape the party’s next presidential nominating process. How much bite the effort has will be determined in large part by the enforcement mechanism the party seeks to implement.

Efforts to curb the influence of super PACs, which can take in unlimited contributions but must disclose their donors, in the 2020 Democratic primaries failed when the party’s leading candidates — from Joseph R. Biden Jr. to Elizabeth Warren — accepted and encouraged support from such outside groups….

It is unclear how the D.N.C. could enforce possible penalties against candidates who have support from outside groups with whom they may not be coordinating. Or whether, as President Trump and Republicans are moving to curb Democrats’ ability to regain power in 2026 and beyond, the party is willing to repel progressive donors who are willing to give unlimited amounts of money….

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“Why a gerrymandering critic wants to toss out California’s maps”

redistricting

California Playbook:

Sara Sadhwani is proud of her work on California’s independent redistricting commission, but now she wants voters to tear up the maps she and her colleagues spent hundreds, if not thousands, of hours crafting.

The Pomona political science professor grabbed political insiders’ attention when she backed state Democrats’ move to counter Texas Republicans’ planned gerrymander with one of their own.

Sadhwani, one of the commission’s Democratic members in 2020, believes partisan gerrymandering should be outlawed nationwide. But she argued democratic institutions have been so weakened by President Donald Trump’s administration that slanting California’s maps toward Democrats is necessary to push back on a Republican power grab — which is why she’s inviting voters to override her own work.

“These are extraordinary times,” she told Playbook. “At this moment, I’m not so worried about California’s democracy.”

You got a lot of attention for calling for the maps to be redrawn. Can you talk me through your thinking?

First of all, I’ll say that I stand by the maps that the commission drew. They are fair, they are competitive, and those are the kinds of maps that we should have for congressional districts across the nation. We expanded opportunities for Latinos, in particular, to elect their candidates of choice in ways that the Legislature never bothered to do in California. I’m incredibly proud of the work that we did in the largest state in the nation.

That being said, not all of the states are playing by the same set of rules. Certainly, we see the showdown happening in Texas. President Trump has talked about getting the FBI involved to get Democratic members back to the Texas Legislature. These are extraordinary times. At this moment, I’m not so worried about California’s democracy. We have strong democratic institutions here in the state of California, but I’m also a political scientist, and at the national level, what we’ve seen over the last 10 or even 20 years is a backsliding and a decay of our institutions that should worry all of us….

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“Voting Rights and Private Rights of Action: An Empirical Study of Litigation Under Section 2 of the Voting Rights Act, 1982-2024”

Department of Justice, Supreme Court, Voting Rights Act

Chris Seaman has posted this draft on SSRN (forthcoming, FSU Law Review). Here is the abstract:

The Voting Rights Act is perhaps the most effective civil rights law ever enacted, bringing millions of Americans who have historically been discriminated against into the democratic polity and facilitating the election of candidates of their choice.  But for more than a decade, the rights guaranteed by this landmark statute have been undermined by the courts.  Recently, the Eighth Circuit has eroded what remains of the Act by holding that private plaintiffs cannot sue to enforce the protections of Section 2 in federal court. This holding—which is in conflict with several other circuits, as well as prior Supreme Court decisions regarding implied rights of action to enforce other parts of the Voting Rights Act—seems likely to be reviewed by the Court.

To assess the potential impact of a possible nationwide ban on private plaintiffs bringing Section 2 claims, this Article reports findings from a comprehensive empirical study of over 1500 challenges brought in federal court between 1982 and 2024.  It finds that over 90% of Section 2 challenges were brought by private plaintiffs rather than the Attorney General. Moreover, private plaintiffs were highly successful in these challenges, winning nearly two-thirds of the time.  The Article then explains why, if Section 2 lacks a private cause of action, the federal government is ill-equipped as both a practical and a political matter to fill this gap in enforcement. 

Looking forward to reading this!

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Election case curriculum videos

election law and constitutional law, Supreme Court, theory

Justin here. With the semester either beginning or around the corner, I wanted to lift up a series of great videos (illustrated, annotated, featuring case text, etc.) that the incomparable Guy-Uriel Charles and Sasha Natapoff have pulled together. Leading scholars (and also me!) each explain and analyze the text of a different seminal Supreme Court case. The videos are all shorter than 15 minutes long, and as the series editors suggest, “can be used to supplement the traditional written casebook and/or to deepen students’ engagement with key cases and doctrines.”

The direct link is https://CRBW.law.harvard.edu, and it’s all free for educators and nonprofits. Just register on the website if you’d like to take a look. (For crim pro faculty, there’s a crim pro version too.)

The roster (so far):

Get ’em while there’s still law to discuss!

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“Republican Party of Texas sets stage to censure members who stepped out of line in likely bid to block them from primary ballot”

redistricting

Texas Tribune:

The executive committee of the Republican Party of Texas was in Austin on Saturday to finalize its first-ever legislative review, outlining a list of censurable offenses that some within the Texas GOP want to use to block certain House Republicans from the 2026 primary ballot.

Those Republicans, made up of delegates chosen by county parties, want to use the list to hold their elected officials to the state party’s priorities. But others see it as an illegal effort to deny officials from the primary ballot if they don’t follow the most fervent conservative activists’ aims 100% of the time.

Texas GOP Chair Abraham George told The Blast that he and House Speaker Dustin Burrows, who spoke to members of the SREC at a separate meeting with Gov. Greg Abbott earlier Saturday morning, have not discussed the party’s censure effort, a new “accountability” mechanism the state party approved at its 2024 convention. Still, Burrows likely knew the SREC members would be approving a hit list that could be used to keep “RINOs” from the ballot….

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