Election Law

Theoretical Approaches to Electoral Politics 2

Normative Approaches 2

Critiques of Normative Approaches 3

Empirical/Descriptive Approaches 3

The Right to Vote 3

Constitutional Basis 3

Anderson-Burdick and Sliding-Scale Scrutiny 4

Lack of uniform voting standards violates EPC. Bush v. Gore. 5

Political Parties 5

Framework 5

What constitutes state action? Can’t discriminate in primaries. White Primary Cases. 6

Parties vs. the Judiciary: Right of Association in Presidential Primaries 6

Parties vs. State Legislatures: State Parties’ Rights of Association 6

Ballot Access restrictions—apply Anderson-Burdick. 7

Patronage—can’t fire non-policymaking gov’t employees for partisan reasons. Elrod. 7

Redistricting 7

Basic Framework: One Person, One Vote (1P 1V) Principle 7

Justiciability 7

Population-based claims: One Person, One Vote Principle 8

Partisan Gerrymandering 8

Definitions 8

Current law: justiciable, but no agreed-upon standard. Vieth. 9

Standing (Gill v. Whitford): 9

Possible/proposed standards 9

Race and Representation 11

Definitions 11

Overview of Voting Rights Act of 1965 (VRA) 11

VRA § 5, 52 U.S.C. § 10304 (now inapplicable to any state) 12

VRA § 2, 52 U.S.C. § 10301 13

Constitutional Law 16

Constitutional Vote Dilution 16

Racial gerrymandering claim—separate cause of action after VRA § 2 amended. 17

Campaign Finance 18

General First Amendment Framework 18

Framework for Analyzing Campaign Finance Laws 18

Constitutionality of Political Spending under Buckley v. Valeo 19

Contribution limits 20

Corporate Speech and Super PACs 20

Criticisms of Buckley framework 21

Federal Election Campaign Act (FECA) Overview and Contribution Limits 22

Disclosure 22

Soft Money and Public Financing 23

Theoretical Approaches to Electoral Politics

Normative Approaches

1. 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:
      

2. Competition Approach (Issacharoff & Pildes)

   1. Instead of balancing rights/interests, courts should only intervene to stop the political process from becoming entrenched, non-competitive.

   2. Founders (Madison): competition is means of reigning in partisanship.

   3. Competition isn’t inherent good, but leads to crucial democratic values:

      1. Accountability

      2. Responsiveness

   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.

Critiques of Normative Approaches

3. Little constitutional grounding

4. Competing values—how do we choose?

5. Political vs judicial branches—see Carolene Products, political process theory.

6. Alignment: what if people are uninformed or have objectionable preferences?

7. Maybe values are beyond reach of election law.

8. First order values (e.g. about racism) can be more important

9. Burkean trustee model: legislators should exercise independent judgment.

Empirical/Descriptive Approaches

10. Duverger’s Law

    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.”

11. 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:

       1. Mechanisms by which interest groups entrench power.

       2. 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?

The Right to Vote

Constitutional Basis

12. The U.S. Constitution has no express protection for the right to vote (constitutions in every state except Arizona and most foreign countries do).

13. 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 State Legislature.”

14. 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.”

15. Article I § 5, Cl. 1: “Each House [of Congress] shall be the judge of the elections, returns and qualifications of its own members . . . .”

16. Article IV § 4 [Guaranty Clause]: U.S. guarantees every state “a Republican Form of Government.” But non-justiciable. Luther v. Borden.

17. 1st Amendment

    1. Freedom of Speech

    2. Freedom of Association (implied). NAACP v. Alabama.

18. 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

19. 15th Amendment: can’t abridge citizens’ right to vote based on race

20. 17th Amendment: Senators popularly elected

21. 19th Amendment: women right to vote

22. 24th Amendment: bans poll tax in federal elections

23. 26th Amendment: gives 18+ year olds right to vote

Anderson-Burdick and Sliding-Scale Scrutiny

24. Basic Framework

    1. Severe burdens on the right to vote must be narrowly tailored to further a compelling government interest—Strict Scrutiny (ss). Anderson.

    2. For less severe restrictions on the right to vote, the burdens are weighed against the state’s relevant legitimate regulatory interests. Burdick.

       1. Identify the burden on exercising the right to vote.

       2. Calibrate level of scrutiny based on severity of burden.

       3. Balance the burden against the government interests, taking into account extent to which interests necessitate burdens.

       4. Reasonable, non-discriminatory restrictions are generally...

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