Election Law
Democracy’s Distrust: The Supreme Court’s Anti-Voter Decisions as a Threat to Democracy
“Democracy’s Distrust” explores how the Supreme Court has eroded voting rights and weakened democracy. It argues that the Court prioritizes candidates and legislatures over voters, fostering public distrust. The Essay examines historical and contemporary cases, highlighting the need for legislative reforms and civic action to protect democracy.
The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law
This Feature describes the stagnation and retrogression of election-law doctrine, politics, and theory, explains why these trends have emerged, and explores how to transform election law in a pro-voter direction. This pro-voter approach is grounded in political equality, engaging legal doctrine, political action, and scholarship to further five principles.
State Implementation of the Electoral Count Reform Act and the Mitigation of Election-Subversion Risk in 2024 and Beyond
The ECRA is a major step toward preventing future election subversion. But since states and localities administer elections, its success depends on state compliance. This Essay details how states should update their election codes ahead of the 2024 elections to guarantee that the new law lives up to its promise.
Reviving the Prophylactic VRA: Section 3, Purcell, and the New Vote Denial
Given increasing threats to voting rights and an expansive Purcell doctrine, Section 3 of the Voting Rights Act is a vital but underused resource. To reinvigorate Section 3, this Note makes two observations: preclearance does not require intentional racial discrimination, and may be based on declaratory judgments, not just injunctions.
Native Voting Power: Enhancing Tribal Sovereignty in Federal Elections
Restrictive voting laws not only infringe upon the rights of individual Native American citizens but also denigrate tribal sovereignty. This Note argues that to fulfill its trust obligation to tribes, Congress should require state election officials to form compacts with tribes governing the administration of federal elections.
Election Law and Election Subversion
The threat of election subversion has forced scholars into a rule-of-law pivot. This Essay identifies three prescriptive approaches dominating this discourse and explores their fundamental advantages and limitations. It then explains how the field of election law must further expand to respond to the multidimensional challenges posed by election subversion.
Electoral Adequacy
This Essay considers the status of election law, as an academic field, and advocates an interdisciplinary research program oriented around the concept of electoral adequacy. Electoral adequacy’s premise is that states are obligated to provide a minimal set of entitlements, or a baseline level of election services, to all voters.
Voters Need to Know: Assessing the Legality of Redboxing in Federal Elections
Redboxing is the term used by campaign operatives to describe when candidates and political parties post public, online messages to share campaign strategy with super PACs. This Note provides the first descriptive account of the practice, and assesses its legality under the Federal Election Commission’s test for coordination.
Prison Malapportionment: Forging a New Path for State Courts
This Comment proposes the first comprehensive path forward for challenging prison malapportionment in state courts, a remedy largely unappreciated in the literature. These state-law claims make use of statutory provisions defining residency, state constitutional equal-population provisions, and distinct state court procedural advantages.
Models, Race, and the Law
The Race-Blind Future of Voting Rights is a provocative proof of concept with an unstable empirical foundation. The Article delivers a baseline for minority electoral opportunity using the ensemble method of random district generation; this Response flags technical issues and questions the conceptual alignment of the methods with their application.
The Race-Blind Future of Voting Rights
The world of voting rights could soon be turned upside down. A conservative Supreme Court might insist that minority voters' existing representation be compared to the representation they would receive if the redistricting process were race blind. This Article is the first to explore the potential consequences of this dramatic shift.
Beyond the Adjustment Wars: Dealing with Uncertainty and Bias in Redistricting Data
This Essay offers a pragmatic approach to litigating legislative malapportionment cases with imperfect population data. Because the census historically is inaccurate and biased—and 2020 Census data may be even more so—courts should clarify that they will consider evidence that district populations are less equal than they facially appear.
Fighting Back to Protect Student Voting Rights
Relying on the author’s experiences as a Yale Law Journal Fellow, this Essay looks at direct and indirect obstacles faced by college students seeking to vote on campus. It explores and proposes legal avenues and advocacy efforts that can be used to successfully overcome these obstacles.
Election Day Registration and the Limits of Litigation
This Essay examines Election Day registration (EDR)—the single reform that would do the most to improve U.S. voter turnout. While legislative reform efforts over the last decade have doubled the number of EDR states, litigation challenging registration deadlines has not yet succeeded, making federal legislation much needed.
Small-Donor-Based Campaign-Finance Reform and Political Polarization
Small-donor campaign-finance reform is supported by participatory, egalitarian, and anti-corruption values. But while reform advocates focus on these values, they ignore the evidence that such reforms might further fuel the ideological extremes in American politics. Small-donor campaign-finance reform requires confronting possible tradeoffs between internet-based political participation and ideological extremism.
The Elections Clause and the Underenforcement of Federal Law
Drawing on nineteenth-century federal voting-rights legislation, this Essay argues that challenges to federal authority over elections persist for two reasons. First, the Supreme Court has not fully delineated federal power under the Elections Clause. Second, Congress has never exercised its Elections Clause power to its full conceptual limits.
The Predominance Test: A Judicially Manageable Compactness Standard for Redistricting
Most states require compact legislative districts, but courts have no framework to judge when contorted districts are legally suspect. This Essay proposes a “Predominance Test” that limits the most egregious gerrymanders by comparing challenged maps to maximally compact plans to test whether compactness predominates over lower-tier and discretionary criteria.
Disparate Impact, Unified Law
Lower federal courts have recently converged on a two-part test for vote denial claims under section 2 of the Voting Rights Act. Yet this status quo is doctrinally incoherent and constitutionally vulnerable. Courts, this Article contends, should look to disparate impact law to address these problems and preserve section 2.
A Post-Shelby Strategy: Exposing Discriminatory Intent in Voting Rights Litigation
In the wake of Shelby County, voting rights lawyers have pushed to hold jurisdictions fully accountable for their actions by proving claims of intentional discrimination under Section 3 of the VRA. This Essay explores the importance of this strategic move in the latest generation of voting rights cases.
Building an Umbrella in a Rainstorm: The New Vote Denial Litigation Since Shelby County
This Essay traces the post-Shelby County development of a two-part Section 2 vote denial liability test. It also describes the tension as to the necessity of evidence (1) regarding the effect of voting practices on voter turnout and (2) concerning discriminatory intent on the part of a state actor.