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M.A. Outline 2019 Election Law With P. Smith Outline

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This is an extract of our M.A. Outline 2019 Election Law With P. Smith document, which we sell as part of our Election Law Outlines collection written by the top tier of Georgetown University Law Center students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Election Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Spring 2019 - Election Law Outline

Table of Contents
Summary of Districting ................................................................................................................................ 2
Introduction ............................................................................................................................................... 12
Reapportionment ...................................................................................................................................... 13
One-Person-One-Vote ............................................................................................................................... 15
Full Cases ............................................................................................................................................... 18
The Constitution and Racial Vote Dilution................................................................................................ 23
The Constitution and Partisan Vote Dilution............................................................................................ 26
Endless Redistricting.............................................................................................................................. 26
Non-Judicial Solutions to Partisan Gerrymandering ............................................................................ 27
The VRA and Racial Vote Dilution ............................................................................................................. 29
Reemergence of Totality of Circumstances Test .................................................................................. 39
Going too Far Considering Race & Relevance of Influence Districts .................................................... 41
Relevance of Influence Districts ........................................................................................................ 46
Concerns about Racial Essentialism .................................................................................................. 48
First Amendment and Limits on Campaign Spending............................................................................... 50
Summary .................................................................................................................................................. 6
Full Cases ............................................................................................................................................... 50
Corporate Participation in Campaigns .................................................................................................. 54
Full Cases............................................................................................................................................ 54
Disclosure of Campaign Contributions and Expenditures .................................................................... 57
The Emergency of New "Outside Groups": 527's, 501(c)(4)s, and Super PACs ............................... 59
Public Funding ....................................................................................................................................... 61
Judicial elections .................................................................................................................................... 64
Bush v. Gore............................................................................................................................................... 68
The Constitution and Vote Suppression ................................................................................................... 72
The Abandonment of Rationality Review for Restrictions on Citizens' Eligibility to Vote .................. 72
Court Starts to Back Off Strict Scrutiny; Opts for Sliding Scale ............................................................ 74
Voter ID Laws ..................................................................................................................................... 75
Different Ways to Organize Elections ....................................................................................................... 76
Types of Electoral Systems .................................................................................................................... 77
Cumulative Voting ..................................................................................................................................... 78

1 Spring 2019 - Election Law Outline

Summary of Districting
Current State of the Law
- One person, one vote

Justiciability of districting found in Baker v. Carr (1962) (just said justiciable; no standard)
o Reynolds v. Simms (1984); rough proportionality required
§ 10% safe harbor for state legislative districts

• Not allowed in Cox v. Larios, (2004), where 10% safe harbor was abused (Rep 4.999% above, Dem 4.999% below)

• Allowed in Harris v. Arizona Indep. Redistricting (where Dem/Rep trends due to attempt to make maj-min districts)
§ 1% safe harbor for congressional districts (was down to 1 person before 2012)
o Evenwel v. Abott (2016) - said total population or voting age population may be used to create equipopulation among districts
§ Prof says this will probably come back bc some states will try to use total population to dilute voting power where a lot of immigrants and/or unregistered minority voters.
- Constitutional Racial Vote Dilution Claims

Originally, there was suggestion impact (w/o discriminatory intent) alone may sustain an EPC claim
§ PLs must show that they are effectively locked out of the political process:

• Contrast Whitcomb v. Chavis: Indianapolis had robust 2-party system, not a history of discrimination etc.

• With White v. Register: TX had basically one party and long history of discrimination

Washington v. Davis - under EPC PLs must show discriminatory intent of facially neutral statute
§ Intent requirement leads to some nefarious results; e.g., City of Mobile v. Bolden (1980) - Mobile elects city council atlarge; had done so since early 1900s where minority voting not a concern so PLs cannot prove discriminatory intent -
Congress not pleased

Sec. 2 of VRA amended to have results test (essentially overruling Washington v. Davis in EPC voting cases)…is dis constitutional doe?
- Political gerrymandering

Baker v. Carr said is justiciable but

Veith v. Jubelirer (2004) and LULAC v. Perry (2006) said we can't find a judicially manageable standard so maybe not justiciable

Gill v. Whitford (2017) seemed to confirm will never find a judicially manageable standard (remanded on standing grounds)
o Prof - given Kennedy's retirement, it is likely Baker v. Carr will be overruled in partisan gerrymandering context; there is no judicially manageable standard.
o Cases currently before S. Ct.:
§ Rucho v. Common Cause (2019) (rep gerrymander; multiple district challenge);
§ Benisek v. Lamone (2019) (dem gerrymander; single district challenge)

2 Spring 2019 - Election Law Outline
Current State of the Law cont.
I think this is in all contexts? - ask prof
- Dilution claims under VRA Sec. 2 Results Test

Gingles (1986) Test Emerges: in dilution in a multi-member district case, PLs must show:
§ That they have a large and compact enough presence to command a single-member district; if they can't show this,
there is no evidence they could get their preferred candidate elected in the absence of the challenged practice

• Prof Notes: you basically need to come in w/ a district drawn around a large/compact group of minority voters
§ They are politically cohesive
§ White majority votes sufficiently as a bloc to defeat the minority's preferred candidate

• Accord League of United Latin American Citizens (LULAC) v. Clements, 5th Cir. (1994) - Electing Judges

Held that polarization doesn't count unless the plaintiff can prove that the reason for the white opposition to the minority candidates of choice is race.
§ "§ 2 is implicated only where Democrats lose because they are black, not where blacks lose because they are Democrats."
o Other circuits disagree.
o Limitations on Sec. 2 liability:
§ Cannot demand more than proportionality

• Johnson v. De Grandy, S. Ct. (1994):
o Issue: "whether even with all three Gingles conditions satisfied, the circumstances in totality support a finding of vote dilution when Hispanics can be expected to elect their chosen representatives in substantial proportion to their percentage of the area's population."
o Holding: Gingles factors generally necessary, but not sufficient, to prevail on a § 2 claim to a single- or multi-member district vote dilution. Instead, must look at totality of circumstances. Of particular importance (though not dispositive) is whether the plan draws a number of minority districts roughly proportional to the relevant population in the area.
§ Cannot rearrange make-up of government/cannot require the creation of more districts/seats

• Holder v. Hall, (1994): county used single commissioner form of government (whereas most counties in GA used multi-member commissions)…cannot require the county to use multi-member.
§ Cannot require cross-over districts

• Bartlett v. Strickland, (2009): to get in to court, you must show ability to draw minority district w/ at least 50%
minority in area that is relatively compact…in other words, cannot require crossover districts, but states can choose to have them, if they want (just mind Miller)
- Shaw v. Reno Doctrine (if race predominant factor in districting, triggers strict scrutiny)
§ Shaw seemed to suggest that only ugly districts where race predominated would be struck down
§ Miller v. Johnson clarified that no, wherever race predominated (regardless of district shape), it is illegal under EPC

3 Spring 2019 - Election Law Outline oSatisfying Strict Scrutiny
§ When is strict scrutiny triggered? - Bush v. Vera, Justices disagree

• O'Connor (Chief, Kennedy): if race is the "predominant factor"

• Thomas (Scalia): all racial classifications trigger SS, so if race is used at all
§ Where race predominates, may be able to meet strict scrutiny if such racial focus was required to avoid Sec. 2 liability or
Sec. 5 preclearance, but must be narrowly tailored

• Bush v. Vera, S. Ct (1996): acknowledges that compliance w/ VRA could be compelling interest

Re: Sec. 5: to be narrowly tailored must be to prevent retrogression, not to "progress"

Sec. 5

States get to choose between safe seats, coalitional, and influence districts:
§ Georgia v. Ashcroft, S. Ct. (2003): § 5 does not require maj-min districts; can be satisfied w/ coalitional or influence districts, depending on the context

• When determining if retrogressive:
o Must look at statewide plan as a whole, not just 1 or 2 districts

• Assess totality of circumstances re: minority group's exercise of electoral franchise:
o Ability of minority voters to elect their candidate of choice
[this should not be the sole inquiry; creating safe districts or influence districts is a valid political choice; each comes w/ benefits and risks]
o Extent of the minority group's opportunity to participate in the political process
[electing your candidate of choice is not only way to participate]
o Feasibility of creating a non-retrogressive plan

Might also look at political power of minority representatives (in this case, there are many influential African American politicians in GA legislature)
o Did politicians from maj-min districts support the districting plan? Can bear on whether there will be retrogressive effect
§ "The State may choose, consistent w/ § 5, that it is better to risk having fewer minority representatives in order to achieve greater overall representation of a minority group by increasing the number of representatives sympathetic to the interests of minority voters."
§ State may choose between substantive representation (align on policy) and descriptive representation (share physical characteristics) to ensure minority may elect candidate of choice
§ Gives description of "influence districts" which sets Civil Rights world on fire: an influence district is one in which candidates elected without decisive minority support would be willing to take the minority's interests into account." - what she is talking about is the 25%-50% AA dist.

4 Spring 2019 - Election Law Outline
Current State of the Law cont.
- Sec. 5 cont.
o Limitation on Sec. 5
§ Bush v. Vera, (1996): Preclearance cannot hinge on progressing, it can only depend on retrogression…in other words,
Justice Dept. cannot say your map will not be approved unless you create a 3rd black district. If State had 2 black districts and keeps 2, that is not retrogression, so meets requirements of Sec. 5.
§ Shelby County v. Holder, (2013): Sec. 4 formula, which identifies the states/areas for which Sec. 5 applies (i.e., which states, and areas must get preclearance before making changes to voting/maps), ruled unconstitutional…said would be constitutional if the data used to determine who must be precleared would be constitutional

5 Spring 2019 - Election Law Outline

Summary of First Amendment and Campaign Finance
Buckley answered four significant questions:

1. "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."
a. Contrast w/ Canada, which holds limits on spending in election fundamental to ensuring equal participation in the electoral process

2. Money spent on elections, in the form of contributions or spending, was Frist Amendment protected activity because it directly facilitated speech.

3. Only the avoidance of corruption and the appearance of corruption could constitutionally justify restrictions on campaign contributions and spending.
a. What is corruption? If it is quid pro quo (money for voting a certain way) its really hard to show. If it is limiting the outsize influence of special interests and the wealthy on individual candidates, that's another thing altogether.
b. Should candidate time protection (i.e., ensuring they spend time representing us instead of raising money) be a significant enough governmental interest to support spending limitations? - Randall v. Sorrell, S. Ct. (2006) says no, Buckley settled it

4. Recognized the contribution/expenditure divide which still animates the Court a. Goes like this:
i. Limits on contributions to candidates/campaign committees ok bc higher risk of corruption/appearance of corruption. But cannot be took restrictive, see Nixon and Randall ii. Limits on individual expenditures not ok (unless have "magic words" like "vote for x" or "vote for y")
iii. Limit on overall campaign spending by the candidate not ok b. Dissenting Justices have argued since Buckley that this is an illusory divide

6 Spring 2019 - Election Law Outline
Case

Holding(s)
Notes
When Can Congress/States Set Limits?
See above (and below), but most important:

1. Only preventing corruption and appearance of corruption compelling
Buckley v. Valeo, S.
enough state interest to allow some limits on political speech
Ct. (1976)

2. Can limit campaign contributions, cannot limit independent expenditures
Extends Buckley to states where campaign/candidate contributions limits go too far
Nixon v. Shrink
Stevens Concurrence:
(from Buckley)…ask whether contribution limits are so radical in effect:
Missouri contributing money is conduct;

1. to render political association ineffective,
Government PAC,
money is property, not speech

2. to "drive the sound of a candidate's voice below the level of notice," and
S. Ct. (2000)
(CITE THIS FOR BONUS POINTS)

3. to render campaign contributions pointless
Kennedy Dissent: basically, says Buckley and this case are wrong; allowing limit on candidate/campaign contributions but unlimited independent expenditures
- Particularly damns "soft money" contributions to the parties used for "issue advocacy"…that is, not express advocacy but "soft"
advocacy (e.g., vote rep or vote on this issue instead of vote for Joey Scalia)
- This makes it impossible to mount a challenge to the party preference
- Finally, there is no political fix since you need to court soft money in order to win
- Creates "covert" funding of candidates/campaigns
- Kennedy's fix (from prof): either

Give Congress another bite at the apple to try to fix it

just have everything be disclosed (who gave it, what was it used for, etc.)
Thomas Dissent: Buckley should be overruled and campaign contributions subject to strict scrutiny; under that standard, the statute at issue would fail (fuck yo face precedent, you don't bind me)
- Contributing to candidate/campaign is "associational" and efficient way to maximize your own speech (which is your right)
Breyer Concurrence (responding to Kennedy and Thomas)
- Tries to reconceptualize what is going on in Buckley
- Would not apply strict scrutiny because there are 1st Amendment Interests on both sides the ledger:
o Contributor's interests must be weighed against

Integrity of the Democratic process/system (i.e., the interest is in how popular support can translate in to concrete governmental action…unlimited contributions risks the system and creating a system where only the rich participate and only their preferences are translated into policy) ß wasn't this "equalization of voice" idea rejected in Buckley?

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