Analysis and Commentary on Election Law

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.

Some, Albeit Little, Hope for Voting Reform

Justia columnist and former counsel to the president John Dean discusses President Obama’s State of the Union voting commission proposal, and the two well-known Washington lawyers—one a Democrat, the other a Republican—who will head the Commission. The Commission will be tasked with improving the voting experience for Americans, in the face of, among other voting problems, reports of extremely long lines at the polls in some states in 2012. Dean argues that the history of presidential commissions is not encouraging, but that President Obama’s Commission could do some good if it focused on preventing a repeat of Republicans’ efforts in 2012 election to make voting more difficult, and thus advantage their own party.

The Constitutional Problems With the Hawaii Law By Which Senator Schatz Was Appointed to Replace the Late Senator Inouye

Justia columnist and U.C., Davis law professor Vikram David Amar argues that there are serious Seventeenth Amendment issues plaguing the Hawaii law that resulted in the temporary appointment of Senator Schatz, after Hawaii Senator Inouye had passed away. More specifically, Amar explains, Hawaii law provides that its Governor shall make a temporary appointment to fill a Senate vacancy by selecting a person from a list of three prospective appointees submitted by the same political party to which the prior incumbent had belonged. Amar questions the constitutionality of Hawaii's procedure with respect to the three-prospective-appointee list and how it is composed.

An Update on the National Popular Vote Movement and Other Election Reform As the 2012 Presidential Election Looms

Justia columnist and U.C., Davis law professor Vikram David Amar comments on developments relating to the National Popular Vote (NPV) movement and other election reform proposals. The essential idea of NPV is to get various states to sign an agreement requiring each signatory state to cast its electoral college votes not for the candidate who garnered a plurality of popular votes in that state, but rather for the candidate who won the most popular votes nationally. This system, with enough signatories, would ensure that the winner of the Presidential contest would always be the person who had won the largest number of votes from individual voters nationwide. It would thus solve the problem of candidates’ focusing almost exclusively on “battleground states” in their campaigns, and would ensure that each American’s vote truly had equal weight in presidential elections. The importance of the issue is underlined by the fact that Gore won more votes in 2000, but lost the election, and this year, Romney may do the same.

The Republicans’ Shameless War on Voting

Justia columnist and former counsel to the president John Dean comments on current and past efforts by the Republican Party to suppress non-white Americans from voting in Southern states. Dean reports that these kinds of efforts have been escalating since 2010, and that they now encompass some Northern states as well. Dean covers specific, highly credible reports of such tactics being used; notes how voting laws can play into that underhanded effort; charges some Republican judges with being unwilling to enforce the amended Voting Rights Act of 1965 (VRA); and explains why these dirty tactics are a stain on the history of the Republican Party. Dean also notes his own role, in the Nixon Administration, in conveying Nixon’s decision not to veto a VRA extension that gave 18-year-olds the vote, and explains how that decision ultimately led, indirectly, to 18-year-olds getting the vote. Dean also notes that Mitt Romney could never make the same decision to let 18-year-olds vote today, as so many young people are Democrats or Independents. Finally, Dean cites a number of reasons for which we should all be thankful for the VRA.

Gaming American Democracy: How Republicans Are Now Determined to Buy Political Power

Justia columnist and former counsel to the president John Dean comments on the baleful influence of the Supreme Court’s decision in Citizens United, which permitted corporations to exert power over elections through corporate campaign contributions. Dean describes the profound differences that Citizens United has already made in our political system, and suggests ways in which covert corporate spending can be policed, even despite Citizens United. His suggestions include aggressive state-level prosecutions, including under bribery statutes.

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 one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... 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, at... more