Election Law
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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…
Note
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 declara…
Note
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 adminis…
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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 ele…
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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 th…
Note
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 Commissi…
Comment
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 dist…
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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 conceptua…
Article
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 c…
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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 a…
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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.
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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 refo…
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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 Electio…
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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…
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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 compact…
Article
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…
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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.
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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 ca…
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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 …
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Roundup: Citizens United and Public Corruption
Public corruption has occupied an interstitial space in American law, cutting across many different legal fields, including traditional criminal law, campaign finance regulation, special rules governing public officers, and First Amendment doctrine. When Citizens United was decided,1 its eff…
Feature
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…
Feature
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
respons…
Feature
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 individua…
Comment
One Person, No Vote: Staggered Elections, Redistricting, and Disenfranchisement
121 Yale L.J. 2013 (2012).
Review
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.
Note
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 spee…
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Citizens United and Its Critics
Testifying before the Senate Judiciary Committee regarding her confirmation as a Supreme Court Justice, Solicitor General Elena Kagan summed up in a cool and even-handed manner the arguments she and her opponents in the Citizens United v. FEC case had made to the Supreme Court. The “strongest argu…
Note
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 autho…
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Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment
Citizens United has wrought widespread changes in the election law landscape. Yet, a lesser-known consequence of this watershed case might have a significant impact in the workplace: it may permit employers to hold political captive audience workplace meetings with their employees. Under Citizens Un…
Note
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 ca…
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Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech
The Yale Law Journal Online is reissuing Elizabeth Pollman's Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech in light of recent developments at the Supreme Court. With the Supreme Court hearing a new round of oral arguments in Citizens United v. Federal Elec…
Note
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 juri…
Comment
Buying an Audience: Justifying the Regulation of Campaign Expenditures that Buy Access to Voters
118 Yale L.J. 379 (2008).
Review
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).
Article
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…
Article
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 glos…
Feature
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…
Note
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. G…
Review
What Ails Us?
112 Yale L.J. 1135 (2003)
Is American democracy sick? If so, what ails it? More importantly, can the disease be cured? Can its symptoms be alleviated by imaginative and well-crafted laws? Or is it a genetic disorder embedded in the DNA of modern representative government and thus unlikely to yield to…