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.

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.

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.

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.

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.

For Election Day, 2012, we have put together several resources to help our readers cast an informed vote. Use these resources as a guide for where to vote and what to take with you. Happy Voting!

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.

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.

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.

Justia columnist and U.C. Davis law professor Vikram Amar comments on legal journalist Jeffrey Toobin’s recent article in The New Yorker regarding the highly controversial Citizens United case, holding that not just persons, but also corporations, have a First Amendment right to spend money to advocate for or against candidates for election. Amar respectfully raises questions about Toobin’s account of the case and how it was decided by the Court. In particular, he focuses on whether this was the rare case in which oral argument actually mattered to the case's outcome, as Toobin suggests.

Justia columnist and Cornell law professor Michael Dorf comments on ways in which election funding can still be made more fair and just—even after the Supreme Court’s highly controversial Citizens United decision. (In Citizens United, as readers may recall, the Court invalidated a provision of McCain-Feingold that forbade the use of general corporate-treasury funds or union funds for financing political advertisements during the sixty days prior to a primary or general election.) Dorf covers the impact of Citizens United; the impact of another recent campaign-finance Supreme Court decision that preceded it; the calls that some have made for a constitutional amendment allowing campaign-finance reform; and options that Congress still retains, even after Citizens United, to reform the campaign finance process—such as simply requiring that media companies provide campaigns with copious free advertising space and time.

Justia columnist and U.C., Davis law professor Vikram David Amar comments on an interesting Arizona case involving the question whether candidates for office can be required to be proficient in English. As Amar explains, the case arose from a dispute in San Luis, Arizona, a small southwestern city where the vast majority of the inhabitants are Mexican-American and where the Spanish language is pervasive. There, the Mayor has challenged the eligibility of a candidate for City Council, Alejandrina Cabrera, and has sought to block her name from the ballot on the ground that she is not proficient in English. In so doing, the Mayor invoked longstanding Arizona law. After an expert found Cabrera not to be sufficiently proficient in English, her name was removed from the ballot. She now seeks relief from the Arizona Supreme Court. Amar considers precedents and analogies that are relevant to whether Cabrera should win her case.

Justia columnist and former counsel to the president John Dean comments on a recent Montana Supreme Court (MSC) ruling that purports to find an exception to the U.S. Supreme Court’s ruling in its Citizens United v. FEC decision. (Citizens United held that corporate campaign contributions are protected as political speech under the First Amendment of the U.S. Constitution.) However, the MSC held that Montana’s own statute, the Montana Corrupt Practices Act, with its ban on corporate contributions, was importantly different from the ban on corporate campaign money that had been at issue in Citizens United, in part due to Montana history. In support of its holding, the MSC reasoned that Montana had a compelling state interest in the enforcement of the Act—especially as the evidence showed that the passage of the Act had been spurred by the situation that existed when it was passed, one hundred years ago, when Montana government was deeply corrupted by corporate influence. Dean notes that it is unclear whether the Supreme Court will intervene here—and whether, if it does, Montana’s unique history and special vulnerability to corporate influence, based on a number of factors, might save its longstanding statute.

Justia columnist and U.C., Davis law professor Vikram David Amar describes and comments on the “Americans Elect” movement. As Amar explains, the movement is striving to put a “nonpartisan” presidential/vice-presidential candidate slate—determined by citizens around the country who will participate in an “online convention” next year—on the ballot in all 50 states before next November’s presidential election. The slate will be “nonpartisan” in that the top online vote-getter, who will be the presidential candidate, must choose a vice-presidential candidate from another party. As Amar notes, nominees can be members of any political party, and indeed could (judging from the organization’s website) presumably be candidates in the Democratic or Republican primary processes. He raises several issues regarding “Americans Elect,” including its potential for its candidate to act as a spoiler by not having enough votes to win, but having enough votes to tip the balance between two major-party candidates—recalling Ralph Nader’s controversial role in Florida in Election 2000. In addition, Amar contends that while Americans Elect’s idea of requiring the top vote-getter to pick an opposite-party running mate is well-intentioned, it seems to rest on some misconceptions about whether mandating lack of party uniformity will turn out to be a good idea.

Justia columnist and U.C. Davis law professor Vikram David Amar comments on Pennsylvania and Nebraska proposals to change the allocation of those states’ electoral college votes. Amar expresses concern that, while the proposals may not be illegal, they are nevertheless deeply problematic and antithetical to basic principles underlying American democracy. The Pennsylvania proposal would alter the winner-take-all approach to the states’ electoral college votes, and instead would allocate the lion’s share of those votes based on how many congressional districts a given candidate won. Meanwhile, in Nebraska, another proposal suggests the opposite change: from a district-by-district approach to winner-take-all. Amar points out that each of these proposals, authored by Republicans, has been put forward now for a plainly partisan reason: to reduce President Obama’s chances of re-election. Amar contends that this partisan motive should make us skeptical of the proposals, which would take effect immediately, much more so than if they were to take effect at a time in the future when their authors could not so easily determine what their partisan effect might be. Finally, Amar also considers whether Bush v. Gore ought to be deemed relevant to the controversy over the Pennsylvania and Nebraska proposals.

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C. Davis law professors, assess the claim of Texas governor and presidential candidate Rick Perry that the U.S. Constitution’s Seventeenth Amendment—which provides for the direct election of U.S. Senators—was a mistake. Amar and Brownstein explain the original Constitution’s provision for state legislative election of Senators, and the thinking behind it, and the genesis of the Seventeenth Amendment. They also assess the Amendment’s costs, but note that if it were repealed, there would be costs to that decision, as well.

Justia columnist and Cornell law professor Michael Dorf notes that many Americans have expressed disappointment in President Obama’s recent speeches. But, of course, it’s easy to criticize, and much harder to detail what the President actually should be saying. That’s exactly what Dorf does in this column—even going so far as to offer his own hypothetical stump speech for President Obama to deliver—a speech addressing tough issues like tax cuts; how, exactly, to put Americans back to work; and one key policy and legal point that Republicans and Democrats alike ought to agree upon.

Justia columnist and U.C., Davis, law professor Vikram David Amar argues in favor of America’s adoption of the National Popular Vote (“NPV”) proposal. As Amar notes, California may soon adopt the proposal, and if it does so, that would be a major development in the movement towards a direct national popular election for the Presidency. The essential idea, he explains, is to get states that, together, possess a sufficient number of electoral votes to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who may have prevailed in that state, but rather for the candidate who won the most popular votes nationally. Amar points out that this idea could be put into effect without a constitutional amendment, considers the details of how the NPV proposal might work, addresses some possible criticisms, and notes that requiring Congressional approval for the proposal to take effect might be wise.