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Theoretical Approaches to Electoral Politics
Critiques of Normative Approaches
2 2 3 3
The Right to Vote
Anderson-Burdick and Sliding-Scale Scrutiny
Lack of uniform voting standards violates EPC. Bush v. Gore.
3 3 4 5
What constitutes state action? Can't discriminate in primaries. White Primary Cases.
Parties vs. the Judiciary: Right of Association in Presidential Primaries
Parties vs. State Legislatures: State Parties' Rights of Association
Ballot Access restrictions—apply Anderson-Burdick.
Patronage—can't fire non-policymaking gov't employees for partisan reasons. Elrod.
5 5 6 6 6 7 7
Basic Framework: One Person, One Vote (1P 1V) Principle
Population-based claims: One Person, One Vote Principle
Current law: justiciable, but no agreed-upon standard. Vieth.
Standing (Gill v. Whitford):
7 7 7 8 8 8 9 9 9
Race and Representation
Overview of Voting Rights Act of 1965 (VRA)
VRA § 5, 52 U.S.C. § 10304 (now inapplicable to any state)
VRA § 2, 52 U.S.C. § 10301
Constitutional Vote Dilution
Racial gerrymandering claim—separate cause of action after VRA § 2 amended.
11 11 11 12 13 16 16 17
General First Amendment Framework
Framework for Analyzing Campaign Finance Laws
18 18 18
1 Constitutionality of Political Spending under Buckley v. Valeo
Corporate Speech and Super PACs
Criticisms of Buckley framework
Federal Election Campaign Act (FECA) Overview and Contribution Limits
Soft Money and Public Financing
19 20 20 21 22 22 23
1. Theoretical Approaches to Electoral Politics a. Normative Approaches i.
Alignment Approach (Stephanopoulos (NS))
1. Government outputs should correspond to measure of public opinion.
2. Typical measure/proxy for public opinion is median voter.
3. Graphic illustration:
ii. Competition Approach (Issacharoff & Pildes)
1. Instead of balancing rights/interests, courts should only intervene to stop the political process from becoming entrenched, noncompetitive.
2. Founders (Madison): competition is means of reigning in partisanship.
3. Competition isn't inherent good, but leads to crucial democratic values:
a. Accountability b. Responsiveness
2 4. Competition may also increase alignment (though far from sufficient
—even in swing districts, democrats tend to be liberal and republicans conservative).
5. This approach is favored in legal academia.
b. Critiques of Normative Approaches i.
Little constitutional grounding ii.
Competing values—how do we choose?
iii. Political vs judicial branches—see Carolene Products, political process theory.
iv. Alignment: what if people are uninformed or have objectionable preferences?
v. Maybe values are beyond reach of election law.
vi. First order values (e.g. about racism) can be more important vii.
Burkean trustee model: legislators should exercise independent judgment.
c. Empirical/Descriptive Approaches i.
1. Plurality-rule elections (such as first past the post) structured within single-member districts tend to favor a two-party system.
2. But "the double ballot majority system and proportional representation tend to favor multipartism."
ii. Public choice theory (Anthony Downs): self-serving legislators trade off votes on legislation to maximize chances of reelection.
1. NS: application of this model has been too narrow in two areas:
a. Mechanisms by which interest groups entrench power.
b. Focus on individual legislators over political parties.
2. Public choice theory also focuses too much on substantive legislation to ensure reelection—isn't just rigging the electoral process simpler?
2. The Right to Vote a. Constitutional Basis i.
The U.S. Constitution has no express protection for the right to vote
(constitutions in every state except Arizona and most foreign countries do).
ii. Article I § 2, Cl. 2:
1. "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and
2. the Electors [voters] in each State shall have the Qualifications requisite for Electors [voters] of the most numerous Branch of the
iii. Article I § 4, Cl. 1 [Elections Clause]:
1. "The times, places and manner of holding elections for Senators and
Representatives, shall be prescribed in each state by the legislature thereof; but
2. the Congress may at any time by law make or alter such regulations,
except as to the places of choosing Senators."
Article I § 5, Cl. 1: "Each House [of Congress] shall be the judge of the elections, returns and qualifications of its own members . . . ."
v. Article IV § 4 [Guaranty Clause]: U.S. guarantees every state "a Republican
Form of Government." But non-justiciable. Luther v. Borden.
vi. 1st Amendment
1. Freedom of Speech
2. Freedom of Association (implied). NAACP v. Alabama.
vii. 14th Amendment
1. § 1 - Equal Protection Clause (EPC)
2. § 2 - House of representatives must be apportioned by population;
can't take right to vote away from men over 21 unless they're criminals, rebels viii.
15th Amendment: can't abridge citizens' right to vote based on race ix.
17th Amendment: Senators popularly elected x.
19th Amendment: women right to vote xi.
24th Amendment: bans poll tax in federal elections xii.
26th Amendment: gives 18+ year olds right to vote b. Anderson-Burdick and Sliding-Scale Scrutiny i.
1. Severe burdens on the right to vote must be narrowly tailored to further a compelling government interest—Strict Scrutiny (ss).
2. For less severe restrictions on the right to vote, the burdens are weighed against the state's relevant legitimate regulatory interests.
a. Identify the burden on exercising the right to vote.
b. Calibrate level of scrutiny based on severity of burden.
c. Balance the burden against the government interests,
taking into account extent to which interests necessitate burdens.
d. Reasonable, non-discriminatory restrictions are generally justified by important regulatory interests.
3. Why use sliding scale scrutiny (Anderson-Burdick)? Least bad option.
a. Strict Scrutiny: Too much disruption to elections.
b. Rational Basis: Need to root out discrimination and exclusion.
4. Look at affected voter, not typical voter. Cf. Planned Parenthood.
ii. Types of Claims and line of cases
Anderso Associatio Early filing for
Voter education, political No
stability, equal treatment
(candidates participating in primary must declare
@ same time)
Extra requirements on otherwise eligible voters in school district elections
Limiting vote to those directly affected,
including members of the
"community of interest"
and property taxpayers
(problem here is tailoring)
Absolute restriction on right to vote. Other cases are about burdens.
weeding out those unwilling to pay $1.50 to vote.
Not brought under 24th amendme nt (only applies to federal elections)
Preventing sore loser candidacies, winnowing the field
Wasn't hard to get on the ballot
Voter ID law
(1) deterring/detecting fraud
improving/modernizing election procedures
(3) problems with voter rolls (dead people, nonresidents) (4) Voter confidence
Intelligent use of the ballot by virtue of being able to read/write
Regulation has no rational basis
Slight burden →
state's regulatory interests outweigh
Poll Tax (state elections)
c. Analysis as applied:
Yes (but overrule d by
Facial challenge only
Also 15th and 17th
Amendme nt Claims d. Lack of uniform voting standards violates EPC. Bush v. Gore.
i. Bush v. Gore: effectively standardless manual recounts.
1. Fl. S. Ct. standard: "clear intent" of the voter.
2. SCOTUS: this lacks minimal procedural safeguards. Need:
a. Adequate statewide standards for determining a valid vote.
b. Practical procedures to implement those standards.
c. Orderly judicial review of disputed matters.
3. Decision "limited to the present circumstances."
ii. Stewart (6th Cir.): use of outdated voting tech in only some counties.
1. Also a VRA § 2 claim here.
2. Note: overruled on unrelated procedural grounds en banc.
iii. Note: Anderson-Burdick focuses on size of burden, while Bush v. Gore focuses on inconsistency in treatment.
3. Political Parties a. Framework i.
Test implied in Brown v. O'Brien:
1. Is there a state action? If not, constitution doesn't apply.
2. If so, balance state interests against burdens on associational rights.
ii. State Action Doctrine: the legal principle that the Fourteenth Amendment applies only to state and local governments, not to private entities.
1. Parties have large influence on elections, but treated as private entities. So, have strong ass'n claim when state forces them to use a primary they don't want.
iii. 1A right of association: parties, voters, and candidates have re one another.
1. Possible rule: forcing parties to associate w/ people they don't want to triggers strict scrutiny (Anderson-Burdick). Eu.
2. Lowenstein: treat parties as having const. associational rights (~
private actors), but unconst. if deprive rights by discriminating
iv. White Primary Cases vs. other state action cases: in White Primary Cases,
party and state are aligned, while in other cases, party is opposing state action.
b. What constitutes state action? Can't discriminate in primaries. White Primary Cases.
i. State laws banning black participation (Herndon) or empowering party executive committees to do so (Condon) violate EPC.
ii. Primary elections = state functions Congress can regulate (Art. 1 § 4)
(Classic), so 15A → can't discriminate against primary voters (Smith
iii. Use functional test to determine if there is a state action. Terry.
c. National Parties vs. State Legislatures (and Parties): Right of Association in
Presidential Primaries i.
Courts can't control actions of nominating convention (non-justiciable).
But while state can determine method of primary, parties have right to decide whether or not to seat delegates (i.e. based on party rules). La
d. State Parties vs. State Legislatures: State Parties' Rights of Association i.
Can't prevent parties from allowing independents to vote in primaries.
ii. But can forbid members of other parties from voting in primary. Clingman.
iii. Comparing Tashjian and Clingman
1. SS (Tashjian—severe burden on ass'n rights) vs. lower scrutiny
(Clingman—minimal burden on ass'n rights).
2. Voter who has affiliated with a different party hasn't really associated.
3. Non-compelling interests in Tashjian found sufficient in Clingman a. Protecting party identity and ensuring voters not misled by parties nominating candidates by nominating candidates not representative of the parties' prevailing views.
b. Ensuring party affiliations reflect political preferences—
easier for parties to communicate w/ ppl likely to vote in primary.
c. Preventing party raiding
4. How to affiliate w/ party whose primary you want to vote in.
a. Tashjian: to associate w/ party, must register w/ that party.
b. Clingman: can associate w/ other party by deregistering.
5. Justices seem skeptical of Tashjian in Clingman (cite dissent)
iv. Can't force party to let non-members vote on candidates. Jones (blanket).
v. But nonpartisan primaries okay. Wash. State Grange.
1. Let candidates list a party preference w/o candidate approval.
2. Compare to Louisiana: no party affiliation listed at all.
e. Ballot Access restrictions—apply Anderson-Burdick.
i. Parties have right to choose candidates, but not to have candidate appear on general election ballot as their nominee. Timmons (fusion ≠ required).
ii. Munro: requiring signatures = 1% votes cast in last election to get on ballot not a severe burden, justified by preventing ballot confusion → can require party to show substantial support in order to qualify for a place on the ballot.
iii. Williams: requiring new political parties to get signatures = 15% of votes cast in last election is severe burden, violates EPC. Makes it virtually impossible for popular new party to get on ballot, even though old party could w/ same support.
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