Cornell Law professor Michael C. Dorf argues that Democrats may be justified in gerrymandering New York’s congressional districts even as they complain about gerrymandering by Republican-controlled state legislatures in Texas, Wisconsin, and elsewhere. Professor Dorf points out that it is sometimes but not always hypocritical to seek to change the law but continue to engage in behavior inconsistent with the change one seeks, and in the case of political gerrymandering, failure to do so amounts to unilateral disarmament.
Illinois Law dean Vikram David Amar argues that legislative reform is the best response if Californians want to change the gubernatorial recall election process. Dean Amar points out that legislators who wish to act should do so before—rather than after—the results of the upcoming election come in, so as to deflect any concerns that they might be motivated by partisanship, even though the reform possibilities may not be facially partisan.
Illinois Law dean Vikram David Amar and Michigan Law dean emeritus Evan Caminker continue their conversation with Berkeley Law professor Aaron Edlin and dean Erwin Chemerinsky about the constitutionality of California’s recall mechanism. Deans Amar and Caminker respond to critiques of their arguments and explain why they have grown even stronger in their belief that that equal protection challenges to the recall mechanism are misguided.
In this third of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone discuss a recent federal lawsuit b Republican minority leaders in both houses of the Illinois General Assembly, specifically focusing on recent developments in the litigation. Dean Amar and Professor Mazzone explain why they do not expect the Illinois Supreme Court to support doing anything but letting the revised district lines (if they be revised as they expect) go into effect.
Berkeley Law professor Aaron Edlin and dean Erwin Chemerinsky respond to arguments by Illinois Law dean Vikram David Amar and Michigan Law dean emeritus Evan Caminker regarding the constitutionality of California’s recall process for governor. Professor Edlin and Dean Chemerinsky first rebut the argument that California Supreme Court precedent determines the outcome in this case and then argue on the merits that California’s recall process attempts to do in two steps what is clearly unconstitutional to do in one; because the ballot is an election for who will be governor, the candidate with the most votes should be the one chosen.
Illinois Law dean Vikram David Amar and Michigan Law dean emeritus Evan Caminker explain why critiques of California’s upcoming vote to recall Governor Gavin Newsom are erroneous. Deans Amar and Caminker describe several other mechanisms that effectively deny voters the opportunity to elect whomever they might want and point out that those mechanisms are very similar, and in some cases, more restrictive, than the recall vote mechanism.
Cornell Law professor Michael C. Dorf comments on the U.S. Supreme Court’s decision last week in Brnovich v. Democratic National Committee, in which the Court upheld along ideological lines two Arizona voting laws, one of which restricted who could collect mail-in ballots and the other of which invalidated votes mistakenly cast in the wrong district. Professor Dorf argues that even if the bottom line in Brnovich is correct, the legal analysis and the Court’s broad acceptance of Republican talking points about voter fraud portend ill for the future of American democracy.
Austin Sarat, Professor of Jurisprudence & Political Science at Amherst College, describes nefarious Republican efforts to ensure victory in future elections by changing rules governing voting and the vote-counting process. Professor Sarat points out that Republican-dominated state legislatures are devising ways to insert themselves into the vote counting process and replace local election officials with loyal partisans.
In this second of a series of columns commenting on Republican efforts to challenge the apportionment of Illinois state legislative districts that the General Assembly and the Governor recently enacted, Illinois Law dean Vikram David Amar and professor Jason Mazzone argue that a federal court may not be able to grant the relief the plaintiffs are seeking. Dean Amar and Professor Mazzone point out that the Illinois Supreme Court is the proper arbiter of the key legal question whether a commission is required under state law.
Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—comments on efforts by Republicans in 32 states to restrict the ballot initiative and voter referendum processes—two key levers of direct democracy. Professor Sarat describes origins and development of these processes in our country and argues that the opportunity for citizens to vote directly on the policies that affect their lives is an important democratic tradition that must be preserved.
Illinois Law dean Vikram David Amar and professor Jason Mazzone argue that the U.S. Supreme Court correctly denied review last week of the Pennsylvania Supreme Court decisions handed down before the 2020 election. Dean Amar and Professor Mazzone explain why the majority denied review and point out that the dissenting opinions unwittingly demonstrate the rightness of the majority.
UF Levin College of Law professor and economist Neil H. Buchanan points out that although Trump’s coup failed, Republicans now have in front of them all of the building blocks necessary to impose one-party rule in the United States within the next four years. In this first of a series of columns, Professor Buchanan describes but a few of the available options Republicans have to rig elections in their favor.
Cornell law professor Michael C. Dorf describes what is at stake on Wednesday, January 6, when Congress meets in joint session to confirm Joe Biden’s election as President. Professor Dorf explains why, although Trump apparently lacks the majority necessary to invalidate a duly chose electoral slate, the stakes are still very high.
Illinois law dean Vikram David Amar explains why Georgia’s law allowing persons 75 years and older to get absentee ballots for all elections in an election cycle with a single request, while requiring younger voters to request absentee ballots separately for each election, is a clear violation of the Twenty-Sixth Amendment. Dean Amar acknowledges that timing may prevent this age discrimination from being redressed in 2020, but he calls upon legislatures and courts to understand the meaning of this amendment and prevent such invidious disparate treatment of voters in future years.
Amherst College Associate Provost Austin Sarat and attorney Daniel B. Edelman explain the important role of Democratic governors in preventing Republican state legislatures from stealing the election. Sarat and Edelman describe a “nightmare scenario” in which Republican legislatures may try to strip the electoral votes of Pennsylvania, Wisconsin, Michigan, Georgia, Arizona, and Nevada, leaving Biden with 232 electoral votes compared to Trump’s 306. The authors call upon the governors of those states to defend the integrity of their states’ election results, insist that there have been no “election failures,” and, if necessary, submit to Congress their own elector lists.
Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, explains why federalism—the autonomy of the states in our country—has been a significant barrier to many of the authoritarian projects Trump has advanced or considered. Falvy argues that the same autonomy should prevent Trump from manipulating the election results decisively in his own favor.
UF Levin College of Law professor and economist Neil H. Buchanan describes how the U.S. Supreme Court is readying itself to declare Trump the winner of the election. Professor Buchanan points out that no court acting in good faith would apply the text of the Constitution or existing Supreme Court precedents in a way that would allow any of this scheme to see the light of day, but based on what Justice Kavanaugh has written and what Justice Gorsuch strongly suggests, the Court might not even have that minimum amount of good faith.
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.