Election Law
Vote Dissociation
The 2016 election highlighted deep-seated problems in American democracy that voting rights cannot fix. This Essay employs the term “vote dissociation” to refer to a species of voting rights injury that is qualitatively different from both vote denial and vote dilution, in which concentrated wealth translates into political power.
Districting for a Low-Information Electorate
121 Yale L.J. 1846 (2012). Most commentary on redistricting is concerned with fairness to groups, be they racial, political, or geographic. This Essay highlights another facet of the redistricting problem: how the configuration of districts affects the ability of low-information voters to secure responsive, accountable governance. We show that attention to the problem of voter ignorance can illuminate longstanding legal-academic debates about redistricting, and that it brings into view a set of questions that deserve our attention but have received little so far. District designers should be asking how alternative maps are likely to affect local media coverage of representatives, as well as the “branding” strategies of political party elites. Bearing these questions in mind, we offer some tentative suggestions for reform.
One Person, No Vote: Staggered Elections, Redistricting, and Disenfranchisement
121 Yale L.J. 2013 (2012).
Redistricting Commissions: A Better Political Buffer?
121 Yale L.J. 1808 (2012). The new institutionalism in election law aims to lessen the necessity of court intervention in politically sensitive election administration matters such as redistricting by harnessing politics to fix politics. Many hope that independent citizen commissions (ICCs) will improve the politics associated with drawing new district boundaries. As the recent round of redistricting comes to a close, I offer some observations about ICCs as effective court redistricting buffers. My basic points are as follows. Independent citizen commissions are the culmination of a reform effort focused heavily on limiting the conflict of interest implicit in legislative control over redistricting. While they have succeeded to a great degree in that goal, they have not eliminated the inevitable partisan suspicions associated with political line-drawing and the associated risk of commission deadlock. Additional political purity tests and more careful vetting of the citizen commissioners are not the solution. I argue that ICCs in the future should adopt a variation of New Jersey’s informal arbitration system as a means of reducing partisan stakes and encouraging coalition building among stakeholders.
Weightless Votes
121 Yale L.J. 1888 (2012). Does “one person, one vote” protect persons, or voters? The Court has never resolved this question. Current practice overwhelmingly favors equal representation for equal numbers of persons. Opponents charge, however, that this approach dilutes the “weight” of some individual voters’ votes. This Essay examines what that might mean, and concludes that there is no coherent individual interest in the “weight” of a vote. It argues that the one person, one vote doctrine is really about something else: protecting the political power of numerical groups. In light of this conclusion, the last section of this Essay explores whether the numerical groups this doctrine protects ought to include all persons living in a jurisdiction, or only the citizens of voting age.
Lightning in the Hand: Indians and Voting Rights
120 Yale L.J. 1420 (2011). American Indians and the Fight for Equal Voting Rights By Laughlin McDonald Norman, OK: University of Oklahoma Press, 2010, pp. 347. $55.00.
Citizens Informed: Broader Disclosure and Disclaimer for Corporate Electoral Advocacy in the Wake of Citizens United
120 Yale L.J. 622 (2010). This Note proposes a new direction for the regulation of corporate electoral advocacy in the wake of Citizens United. Rather than examining whether Citizens United was rightly decided, it argues that broad disclosure and disclaimer regulations for corporate electoral speech are constitutionally sound and may be normatively superior to outright prohibitions. After surveying state and federal disclosure and disclaimer requirements, the Note proposes a broader scope for such mandates than existing doctrine permits for individual speech. It argues that regulations of corporate-funded electoral speech should be neither strictly limited to express candidate advocacy nor balanced against a right to anonymity.
The Voting Rights Act's Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance
119 Yale L.J. 1992 (2010). Following NAMUDNO, the search is on for a way to save section 5 of the Voting Rights Act (VRA). This Note offers a solution through an examination of the VRA’s most obscure provision: section 3. Commonly called the bail-in mechanism or the pocket trigger, section 3 authorizes federal courts to place states and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance. This Note makes a two-part argument. First, the pocket trigger should be used to alleviate the NAMUDNO Court’s anxiety over the coverage formula’s differential treatment of the states. The Justice Department and civil rights groups should build off of the handful of successful bail-ins and redefine the preclearance regime through litigation. Second, the pocket trigger provides a model for a revised VRA. The pocket trigger is more likely to survive the congruence and proportionality test because it replaces an outdated coverage formula with a perfectly tailored coverage mechanism—a constitutional trigger. It also sidesteps the political difficulties in designing a new coverage formula. The pocket trigger has the potential to create dynamic preclearance: a flexible coverage regime that utilizes targeted preclearance and sunset dates. This Note concludes by proposing possible amendments to the pocket trigger, such as adding an effects test or delineating certain violations that automatically trigger preclearance.
Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment
Maximizing Participation Through Campaign Finance Regulation: A Cap and Trade Mechanism for Political Money
119 Yale L.J. 1060 (2010). This Note attempts to reroute a burgeoning area of campaign finance scholarship and reform. Though many previous proposals have enshrined liberty or equality as the sole animating value to pursue through doctrinal and political means, few have considered the impact of campaign finance regulation on citizen participation. Those that have proposed participation as a goal often remain tied to unworkable or self-defeating notions of equality. In building an alternative model of maximizing participation, this Note rejects the premise that direct political action such as volunteering embodies a superior form of participation to contributions, but recognizes the externalities that the latter form may produce. It proposes a new mechanism for reform: a cap and trade policy in which citizens can increase their rights to contribute to political candidates or parties by purchasing permits from other contributors. Derived from proposals to regulate pollution in environmental economics, this mechanism serves as a helpful alternative to ineffective and inefficient contribution limits.
Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech
Privatizing Democracy: Promoting Election Integrity Through Procurement Contracts
118 Yale L.J. 744 (2009). Voting machine failures continue to plague American elections. These failures have fueled the growing sense that private machine manufacturers must be held accountable. This Note argues that, because legitimacy externalities and resource disparities across election jurisdictions pose persistent threats to electoral integrity, meaningful accountability will require greater federal oversight. This oversight must take into account the unique nature of the public-private partnership that defines this nation’s system of election administration. This Note thus proposes an amendment to the Help America Vote Act of 2002, which would condition federal funds on state procurement contracts. These procurement contracts would mandate performance-based requirements for vendors to supply the means with which to verify votes cast. Such contracts should not only have third-party beneficiary enforcement mechanisms, but also override the doctrine of trade secrecy invoked by manufacturers to prevent software disclosure.
Buying an Audience: Justifying the Regulation of Campaign Expenditures that Buy Access to Voters
118 Yale L.J. 379 (2008).
From Litigation, Legislation:A Review of Brian Landsberg’s Free at Last To Vote: The Alabama Origins of the 1965 Voting Rights Act
117 Yale L.J. 1132 (2008).
Race and Democratic Contestation
117 Yale L.J. 734 (2008). As the Voting Rights Act of 1965 (VRA) passes its fortieth anniversary and faces upcoming constitutional challenges to its recent renewal, a growing number of liberals and conservatives, once united in support, now share deep reservations about it. This Article argues that the growing skepticism about the VRA and majority-minority districting is misguided by a simplistic and impoverished account of electoral competition in American politics. Electoral competition should be judged with reference to the ultimate ends it is intended to produce— more democratic debate, greater civic engagement and participation, and richer political discourse—all of which are generated by a deeper first-order competition among political leaders that this Article describes as “democratic contestation.” This Article offers democratic contestation, in place of electoral competition, as a basic value in the law of democracy and as the foundation for a new theory that helps reconcile approaches to race, representation, and political competition. A theory of democratic contestation shifts the normative focus from the pluralist absorption with which groups get what from politics to a new focus on the tenor and quality of political competition among leaders. When viewed through a theory of democratic contestation, the VRA is crucially procompetitive in the broader sense of democratic contestation. By carving out safe majority-minority districts, the VRA may break the discursive stasis of racial polarization in which politics revolve around the single axis of race. A theory of democratic contestation reveals how majority-minority districts may energize the process of democratic contestation and enable an internal discourse of ideas that moves beyond the racially polarized divide, an otherwise inadvisable move in the face of racially polarized opposition. A theory of democratic contestation thus demands a reevaluation of the Supreme Court’s recent decision in LULAC v. Perry and provides a new understanding of the renewed VRA going forward in the modern world of national partisan competition.
The Promise and Pitfalls of the New Voting Rights Act
117 Yale L.J. 174 (2007). In the summer of 2006, Congress reauthorized the expiring provisions of the Voting Rights Act (VRA) with a unanimous vote in the Senate and with limited opposition in the House of Representatives. The veneer of bipartisanship that outsiders perceived in the final vote glossed over serious disagreements between the parties over the meaning of the central provision of the new VRA, which prohibits voting laws that “diminish the ability” of minority citizens “to elect their preferred candidates of choice.” Those disagreements came to the surface in a fractured Senate Committee Report released only after Congress had passed the law. This Article describes the unprecedented legislative history of this law, and the political and constitutional constraints that led the law to take the form that it did. It also presents an interpretation of the new retrogression standard that avoids the partisan bias of alternatives while emphasizing the importance of racially polarized voting to the constitutionality and meaning of this new law. It urges that the new law be read as preventing redistricting plans that reduce the aggregated probability across districts of the election of candidates preferred by the minority community and disfavored by whites.
John Hart Ely and the Problem of Gerrymandering: The Lion in Winter
114 Yale L.J. 1329 (2005) In Democracy and Distrust, John Hart Ely articulated a "participation-oriented, representation-reinforcing approach to judicial review" that advanced both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. This essay explores the implications of his work for a central issue of democratic governance: legislative apportionment. Part I shows that although Ely celebrated the Warren Court's "Reapportionment Revolution" as a paradigmatic example of the anti-entrenchment approach, he essentially ignored the ways in which the Burger Court's jurisprudence of racial vote dilution, with its focus on geographically discrete minority groups subjected to majority prejudice, exemplifies the antidiscrimination approach. Part II looks at the implications of Ely's theory for contemporary controversies over race-conscious redistricting. Ely's final work--a trilogy defending the Rehnquist Court's Shaw jurisprudence as a wedge for attacking political gerrymandering more broadly--reveals an implicit tension within his approach: While the anti-entrenchment and antidiscrimination rationales may have dovetailed during the years of Democracy and Distrust, today they can operate at cross-purposes. The protection of minority interests is now often best served not by judicial skepticism of legislative outcomes but by judicial deference to plans that allocate power to politicians elected from minority communities. In the end, Ely's trilogy may reflect his romance with the Warren Court, which saw discrete and insular racial minorities essentially as objects of judicial solicitude, rather than as efficacious political actors in their own right.
Judging Partisan Gerrymanders Under the Elections Clause
114 Yale L.J. 1021 (2005) The Supreme Court has consistently decried the lack of standards for adjudicating partisan gerrymandering claims, most recently in last Term's Vieth v. Jubelirer. But it has ignored the potential for developing standards under the Elections Clause, which it held in Cook v. Gralike to bar attempts by state legislatures to influence federal election outcomes. This Note aims to reconcile these two cases. It mines the history of the Elections Clause to determine what limitations it imposes on state legislatures and, invoking congressional obligations under the Guarantee Clause, articulates a novel standard for review of partisan gerrymandering consistent with those limitations.