Analysis and Commentary on Election Law

The Return of the Arizona Independent Redistricting Commission (AIRC) before the Supreme Court: The Harris v. AIRC Case Argued Next Week

University of Illinois College of Law dean and professor Vikram David Amar discusses a case in which the U.S. Supreme Court will hear oral arguments next week—Harris v. Arizona Independent Redistricting Commission. As Amar points out, that case lies at the intersection of many contentious aspects of 21st century American democracy, including dissatisfaction with elected officials, partisan zeal, racial equality, and federal–state relations.

A Minimum Wage of Zero

Chapman University law professor Ronald Rotunda questions the practice of both the Hillary Clinton Campaign and Supreme Court Justice Sonia Sotomayor to employ unpaid interns. Rotunda argues that in both instances, the interns do not receive the type of training or education from the experience that is required in order for an unpaid internship not to violate federal labor laws.

What a California Proposal to Authorize the Killing of Gays Says About the Initiative Process and the First Amendment

UC Davis law professors Vikram David Amar and Alan E. Brownstein discuss the so-called “Sodomite Suppression Act”—a recently proposed California initiative. Amar and Brownstein argue that despite the clear illegality and immorality of the proposed initiative, many of the suggestions that the attorney who proposed it be punished or that the initiative process be altered to prevent these types of initiatives are themselves unconstitutional in some cases, and at best ill-advised in other cases.

Reflections on the Oral Argument in the Arizona Independent Redistricting Commission Case: Some Interesting (and Disheartening) Features, Including Justice Kennedy’s Incomplete Description of U.S. History

U.C. Davis law professor Vikram David Amar comments on the recent oral argument in the Arizona Independent Redistricting case before the U.S. Supreme Court. In particular, he points out the lack of attention to the question of standing and Justice Anthony Kennedy’s overly (and erroneously) simplistic view of U.S. history.

Yet Another (Judicial) Incursion Into A State’s Decisions About How to Structure Direct Democracy: The Ninth Circuit’s Ruling in Chula Vista Citizens for Jobs and Fair Competition v. Norris

U.C. Davis School of Law professor Vikram David Amar describes a recent incursion by the U.S. Court of Appeals for the Ninth Circuit into California’s direct democracy system. Amar explains the U.S. Supreme Court precedents that led the Ninth Circuit to its conclusion, and he calls upon the Court to cut back or overrule its prior erroneous decisions to avoid future injuries to state direct democracy systems.

Are “Advisory” Measures (Like Proposition 49) Permitted on the California Ballot?

UC Davis law professor Vikram David Amar discusses a recent decision by the California Supreme Court temporarily blocking an “advisory” measure from appearing on the ballot. Focusing on the opinion by Justice Goodwin Liu, Amar describes three main weaknesses in the rationale behind disallowing the legislature from placing the advisory question (or any advisory question) on the ballot.

Was It Really a Tea Party Election Upset of House GOP Leader Eric Cantor?

Former counsel to the president John W. Dean comments on the recent surprise defeat of House GOP Leader Eric Cantor in his reelection bid for his Virginia congressional seat. Despite some preliminary claims that the election signifies a resurgence of Tea Party activism, Dean suggests taking a hard look at Cantor’s defeat to better and fully understand why he lost. Other factors such as Democrats’ cross-over voting, Dean argues, could have played a role in Cantor’s defeat.

Stop Eviscerating Campaign Rules

Justia columnist and former counsel to the president John Dean implores the Supreme Court to end its rampage against election laws, beginning with ruling properly in Susan B. Anthony List v. Driehaus. In that case, in which the Supreme Court heard oral arguments last week, two political action committees are challenging an Ohio law that criminalizes false statements in a political contest. Dean compares the state law to defamation law, which he argues is similarly impotent yet faces no such legal challenge, and he calls for an end to the recent trend of Supreme Court decisions effectively dismantling American election laws.

Using the State to Bully Dissidents

Justia columnist and Chapman law professor Ronald Rotunda explains why the First Amendment of the U.S. Constitution is implicated by the forced resignation of Mozilla CEO Brendan Eich for his donation to a committee that supported California Proposition 8, the California initiative that banned gay marriages in that state. He critiques the state law requiring disclosure on the grounds that it facilitates harassment of donors who wish simply to exercise their constitutional rights.

Just Shy of Bribery: The Roberts Court Embraces Francis Underwood’s View of Washington

Justia columnist and Cornell Law professor Michael Dorf critiques the U.S. Supreme Court’s recent decision in McCutcheon v. Federal Election Comm’n striking down aggregate limits on individual contributions to political campaigns. Dorf argues that the Court’s plurality opinion is poorly reasoned and disregards the broader purpose of aggregate limits: to prevent wealthy donors from buying Congress as a whole.

Is ALEC’s Draft “Equal State’s Enfranchisement Act,” Concerning U.S. Senate Elections, Constitutional?

Justia columnist and U.C., Davis law professor Vikram David Amar addresses the constitutionality of a proposal from the Federalism Working Group of the American Legislative Exchange Council (ALEC)—an influential and generally conservative policy-oriented institution—to meet to consider, among other things, a proposal that would empower state legislatures to add candidates to general election ballots for the office of United States Senator. Amar takes up the question whether a proposal like this would be consistent with the federal Constitution.

The Inevitable Holding in Shelby v. Holder, and Its Fallout

Justia columnist and Cardozo law professor Marci Hamilton comments on the Supreme Court’s 5-4 decision in Shelby v. Holder, the Voting Rights Act case that the Court just resolved. Section 4(a) of the Act establishes a formula to be applied to identify jurisdictions that must obtain preclearance before they change their voting practices. Hamilton considers the majority and the dissent, and contends that coverage of the decision features a drastic overstatement of both the Court’s decision and its likely fallout.

The Supreme Court Rejects Arizona’s Requirement That Voters Prove Their Citizenship—For Now

Justia columnist and Cornell law professor Michael Dorf comments on Monday’s Supreme Court ruling, Arizona v. Inter Tribal Council of Arizona. There, as Dorf explains, a mostly united Supreme Court rejected Arizona’s efforts to require voters to provide documentary evidence of their U.S. citizenship in order to register to vote in federal elections. Dorf highlights three key features of the case: (1) the Court did not divide ideologically; (2) the majority opinion affirms a principle of broad federal preemption with respect to federal regulation of voting; and (3) the Court left open the possibility that states—including Arizona—could circumvent the Court's ruling.

Whom Should Chris Christie Name to Frank Lautenberg’s Senate Seat? Current Law Provides No Perfect Options

Justia columnist and Cornell law professor Michael Dorf explains the complex situation regarding the New Jersey Senate seat that was held by Frank Lautenberg, who just recently passed away. Lautenberg was a devoted Democrat, but now a Republican will name his immediate successor, who will then have the advantage of incumbency in the next election. Dorf explains how and why this somewhat odd-seeming sequence of events occurred, and explains the role that the U.S. Constitution’s Seventeenth Amendment, in conjunction with New Jersey law, played here. Dorf also contends that there are far better ways than this to fill Senate vacancies, and describes one such system.

(Unpersuasive) Challenges to the National Popular Vote Plan: Part One in a Series of Columns

Justia columnist and U.C., Davis law professor Vikram Amar defends the National Popular Vote (NPV) Compact against challenges raised by Willamette law professor Norman Williams, contending that each of those challenges lacks merit. As Amar explains, the NPV Compact seeks to move America toward making it ever more likely that the President who is elected is the candidate who obtains the most voter support nationwide, by getting various states to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who garners a plurality of popular votes in that state, but rather for the candidate who wins the most popular vote nationally.

Justice Scalia’s Long Campaign Against “Racial Entitlements” Takes an Unexpected Turn

Justia columnist and Cornell law professor Michael Dorf comments on Justice Scalia’s arguments regarding what Scalia calls “racial entitlements,” and the Voting Rights Act. As Dorf notes, these issues came up during the oral argument in the case of Shelby County v. Holder. Moreover, Dorf notes, Scalia had earlier raised these arguments both when he was a law professor, and repeatedly in his opinions on the Court. But, Dorf points out, Scalia’s references in the past appeared in affirmative action cases, whereas this reference appeared in his discussion of Section 5 of the Voting Rights Act, which is not an affirmative action provision; rather it deals with election rules in jurisdiction with a history of discriminatory voting rules. Dorf questions whether Scalia’s extension of his own “racial entitlements” logic is valid in this context.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavi... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior... more