Articles Posted in Election Law

Amherst College Associate Provost Austin Sarat and attorney Daniel B. Edelman argue that there is nothing the Supreme Court can do to prevent governors from certifying slates of electors that actually reflect the vote of the people in their states. Sarat and Edelman explain why Bush v Gore is both inapplicable, and by its own terms, never supposed to be used as precedent.

Illinois law dean and professor Vikram David Amar describes an underappreciated influence of the late Justice Ruth Bader Ginsburg—her carefully reasoned majority opinion in Arizona Legislature v. Arizona Independent Redistricting Commission. As Dean Amar explains, in that case, Justice Ginsburg rejected nearly identical arguments to those relied on today in asking federal courts to challenge state courts’ and agencies’ rulings protecting the right of their citizens to vote as provided for under state statutes and constitutions.

In anticipation of a contested election outcome in November, Amherst College Associate Provost Professor Austin Sarat and attorney Daniel B. Edelman call upon Democratic governors to forward a slate of electors that reflects the preference of the greatest number of voters in their states, regardless of what their legislatures might do. Sarat and Edelman argue that the fate of American democracy may depend on these governors.

Illinois law dean and professor Vikram David Amar reflects on three writings by the late Justice Ruth Bader Ginsburg that he finds himself most drawn to. Amar describes these writings as addressing ideas central to our form of democratic government, namely popular sovereignty, equal voting access, and judicial deference to Congress on policies involving the entire nation.

Illinois law dean and professor Vikram David Amar comments on a recent decision by a divided three-judge panel of the Fifth Circuit holding that a Texas vote-by-mail law that prefers people who are 65 or older does not violate the Twenty-Sixth Amendment of the federal Constitution. Amar explains why the decision is “deeply misguided” and runs counter to the clear words of the Constitution.

In this second of a two-part series of columns about the U.S. Supreme Court’s recent decision in the “faithless elector cases, Illinois Law dean and professor Vikram David Amar describes some good news that we may glean from those cases. Specifically, Amar points out that states have many ways of reducing elector faithlessness, and he lists three ways in which the Court’s decision paves the way for advances in the National Popular Vote (NPV) Interstate Compact movement.

In this first of a two-part series of columns about the U.S. Supreme Court’s recent decision in the “faithless elector” cases, Illinois law dean and professor Vikram David Amar expresses disappointment that the majority opinion—authored by Justice Elena Kagan—and concurring opinion—by Justice Clarence Thomas—are not as well reasoned or careful as they could be. Amar points out some of the ways in which the opinions fall short, noting some of the arguments that merited more discussion, or at least more thorough consideration.

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—argues that disenfranchising felons, as most American states do in some way, does substantial harm to everyone in our democracy. Sarat praises a recent decision by a federal district court in Florida striking down a state law requiring people with serious criminal convictions to pay court fines and fees before they can register to vote, but he cautions that but much more needs to be done to ensure that those who commit serious crimes can exercise one of the essential rights of citizenship.

Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on the U.S. Supreme Court’s recent per curiam decision staying an injunction by a federal district court in Wisconsin, effectively allowing the election in that state to go forward on with the normal timeline for casting ballots in place, despite concerns over the effects of COVID-19. Amar and Mazzone argue that, while the outcome might have been unjust, the plaintiffs in that case likely did not allege a constitutional violation and thus did not properly allege claims suitable to be remedied in federal court.

Cornell law professor Michael C. Dorf comments on the recent per curiam opinion by the U.S. Supreme Court effectively requiring that in-person voting in the Wisconsin primary election go as scheduled and without deadline extension for mail-in ballots, despite the ongoing COVID-19 pandemic. Dorf argues that the decision is the result of partisan politics and petty sticklerism in the Court and will unnecessarily endanger the lives of voting citizens.

UF Levin College of Law professor and economist Neil H. Buchanan considers whether (and how) President Trump or his supporters in Congress could cancel the 2020 elections, citing public safety as a result of the COVID-19 pandemic. Buchanan points out that because states control the procedures for the election, Trump would need Republican governors of certain blue states to shut down their state’s elections—something Buchanan stops short of saying is likely or unlikely.

In this third of a series of columns on a legal challenge to Mississippi’s method of selecting governors, Illinois law dean Vikram David Amar and professor Jason Mazzone discuss the merits of the challenge, with a particular focus on the plaintiffs’ contention that the method violates the one-person, one-vote principle enshrined in the Equal Protection Clause of the Fourteenth Amendment. Amar and Mazzone discuss the relevant precedents and argue that based on those precedents, the challenge has solid legal ground on which to proceed.

In this second of a series of columns, Illinois law dean Vikram David Amar and professor Jason Mazzone continue their discussion of a federal lawsuit challenging Mississippi’s scheme for electing governors. Amar and Mazzone examine a few important procedural and jurisdictional issues the lawsuit presents, specifically, why the plaintiffs have standing to sue in federal court and what remedies a federal court might provide if it agrees with the plaintiffs on the merits.

In this first of a series of columns, Illinois law dean Vikram David Amar and professor Jason Mazzone consider whether Mississippi’s method of electing its governor—requiring a successful candidate to win both a majority of the state house of representatives and a majority of districts—is constitutional. Amar and Mazzone describe some of the important issues the case raises under the Fourteenth and Fifteenth Amendments.

Illinois law dean and professor Vikram David Amar offers three key observations about a recent decision by the U.S. Court of Appeals for the Tenth Circuit concerning “faithless” electors in the Electoral College. Specifically, Amar explains why the potential impact of the decision on the National Popular Vote movement is most likely limited, not extensive.

Cornell law professor Michael C. Dorf considers whether a possible Supreme Court ruling in a “faithless elector” case from the U.S. Court of Appeals for the Tenth Circuit could end the National Popular Vote (NPV) movement, which attempts to circumvent the Electoral College by interstate compact. Dorf provides a short background of NPV and the Tenth Circuit’s decision, and he explains why a decision by the Court decides to affirm the Tenth Circuit’s reasoning would threaten NPV.

Illinois law dean and professor Vikram David Amar comments on the Trump administration’s recent legal challenge to California’s law that denies ballot access to presidential candidates who have chosen not to release their tax returns. Without opining as to whether that challenge is likely to succeed or whether it is a good idea for states to enact such laws, Amar explains why, as a normative matter, the arguments in favor of striking down the law are misplaced, or at the very least, overly simplistic.

In honor of the 100th anniversary of Illinois’ ratification of the Nineteenth Amendment, Illinois law dean and professor Vikram David Amar reflects on what it means to be free from discrimination in the right to vote. Amar points out the connection between the right against discrimination in voting and the right discrimination in jury service and calls upon us all to consider what full, equal citizenship means.

Illinois law dean and professor Vikram David Amar describes recent developments in the reform movement known as the National Popular Vote (NPV) interstate compact plan and explains how those hesitant to get on board (particularly elected Republican legislators) can address their concerns with the plan. Specifically, Amar proposes that states should adopt the NPV interstate compact but delay implementation until 2032—a time in the future at which no one today can anticipate which party (if either) the compact would benefit.

Illinois law dean and professor Vikram David Amar comments on the most recent development for the election reform movement known as the National Popular Vote (“NPV”) interstate compact plan—its imminent adoption by Colorado. Amar describes three reasons that Colorado’s adoption of the plan is such a significant step for the movement.