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Law Outlines Election Law (Regulation of Political Process) Outlines

Election Law Outline

Updated Election Law Notes

Election Law (Regulation of Political Process) Outlines

Election Law (Regulation of Political Process)

Approximately 26 pages

Outline of Election Law (called "Regulation of the Political Process" at UVA) as taught by Prof. Michael Gilbert, using the Lowenstein casebook. Topics covered include Voting Rights, Districting, Vote Denial, Minority Vote Dilution, Gerrymandering, Election Administration, Voter ID, Political Party Rights, Campaign Speech, and Campaign Finance. Special attention is given to standards of review, evolution of doctrines, theories of representation and equality, and the competing policy interests bet...

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Regulation of the Political Process, Spring 2016
Prof. Michael D. Gilbert

COURSE THEMES

  • Role of process; process as a substantive right

  • COI: incumbents determine election processes. Power to maintain or change

  • Theories of representation

  • Methods of finding “equality”

  • Chilling vs. Information

  • Burdens

  • Fundamental Rights

  • Equal Protection

  • Vote Denial vs. Vote Dilution

    • Always start with general vs. special purpose inquiry (Hadley/Avery/Salyer). Harper strict scrutiny if general/denial. Reynolds substantial equality test if general/dilution. Salyer RB review if special.

  1. VOTING RIGHTS

    1. Constitutional Sources

      1. Article I Section 2: same qualifications for federal and state elections

      2. 15A: race

      3. 17A: direct election of Senators

      4. 19A: sex

      5. 24A: eliminates poll tax for federal elections

      6. 26A: Adulthood defined as 18

      7. 14A: Equal Protection Clause

        1. Strict Scrutiny: Fundamental rights, racial classifications (but see 15A)

        2. Intermediate Scrutiny: Sex classification (but see 19A)

        3. Rational Basis: All other classifications not invoking fundamental rights. Reasonably related to a legit government interest.

    2. Voting as a Fundamental Right: Strict Scrutiny

      1. Fundamental right for all (1) adult (2) citizen (3) non-felons. Non-fundamental right for all others. Only invidious restrictions (unrelated to voter qualifications) draw strict scrutiny; see Crawford balancing test for others.

      2. Harper v. Virginia SBOE (1966)

        1. FACTS: VA required $1.50 poll tax paid 6 months in advance. Federal poll tax already banned by 24A. State interest: raising money, voter competence.

        2. REVIEW: Voting is a fundamental right that carries meticulous (strict) scrutiny.

        3. INTERESTS:

          1. 1: Raising money is not compelling.

          2. 2: Voter competence possibly compelling, but improperly tailored. Overinclusive (bars good voters who cannot afford tax or forgot to pay on time) and underinclusive (allows rich idiots to vote).

        4. POLICY: Ability to pay has nothing more than a bare relationship to voter competence (possibly enough to overcome low-level RB). Education is better, but is also insufficiently tailored.

        5. DISSENT (Harlan): Civic responsibility is a CI, and people who can’t pay a small tax on time can’t care enough about the system to vote.

        6. BUT SEE: Lassiter v. Northampton County BOE (1959). Literacy tests upheld because pre-Harper there was no fundamental right to vote and all review was RB. Intelligence adequately related to competence interest.

          1. Congress used 15A S2 power to ban literacy tests via VRA. Still theoretically constitutional; Lassiter never explicitly overruled.

      3. Kramer v. Union Free School District (1969) Strict Scrutiny for requirements more stringent than residency.

        1. FACTS: Adult citizen nonfelon living in mother’s basement challenges special requirement for school board elections that voters either own/lease property or have a child in the school system.

        2. REVIEW: Strict scrutiny (checks all 3 boxes)

        3. INTEREST: Limit franchise to people with interest in system (either children or taxes). Possibly compelling (no precedent).

        4. TAILORING: Fails. Can be interested without concern for children or taxes (better education means higher QOL). Can pay taxes but be disinterested in community.

        5. POLICY: P had right to vote for legislators who made this restriction, but SCOTUS doesn’t trust legislators to get it right. Too beholden to taxpayers who would not support letting nonpayers vote.

      4. Durational Residency: 50 days OK, 1 year not OK

        1. Dunn v. Blumstein (1972): CI in fraud prevention and administration. 1 year is insufficiently tailored.

        2. Marston v. Lewis (1973): 50 days is narrowly tailored.

    3. Voting as a non-fundamental right: Rational Basis

      1. Fundamental right for all (1) adult (2) citizen (3) non-felons. Non-fundamental right for all others.

        1. Non-adults: See 26A. RB to deny vote to <18.

        2. Non-citizens: Skafte v. Rorex (CO 1976, but used broadly)

          1. FACTS: Noncitizen wants to vote for school board.

          2. RULE: 14A expands franchise to citizens only, so P has no 14A claim. RB satisfied as school boards are involved in state policymaking, and no easily administrable test to determine if aliens are part of the political community (the state interest). Citizenship is a rational place to draw the line (tailoring).

        3. Felons: 14A S2 allows disenfranchisement for rebellion and other crimes. States have varying rules on whether felons may vote. None of these draw strict scrutiny; must only survive RB.

          1. Interests: Competence; exclude those who affirmatively reject the rules of the community.

          2. Impermissible Interests: Racial, partisan.

          3. Current Challenges: Based on VRA, not 14A.

      2. Residency: Only draws rational basis review.

        1. Holt Civic Club v. Tuscaloosa (1978)

          1. FACTS: City’s police zone expanded beyond city lines, but other powers (zoning, ED, taxes) did not. Suit to give people within policing zone right to vote in city elections.

          2. REASONING: Spillover rationale; city decisions affect indeterminate number of people beyond borders. Only way to be fair is to let whole world vote in every election. Rational interest in limiting franchise somehow; drawing line at borders is reasonably related.

          3. DISSENT: People in policing zone more directly affected by city policy than others. Classification fails RB review.

      3. People under Guardianship: Barred from voting by most states. Not outside 14A’s three boxes, but RB anyway.

  2. REPRESENTATION: ONE PERSON, ONE VOTE

    1. State Elections: Substantially Equal Standard (without regard to race, gender, citizen status, or eligibility) comes from 14A (EP) and gets rational basis review. If deviation is 10% or less, burden on challenger to show plan is arbitrary or discriminatory. If above 10%, burden on state to show plan is not arbitrary or discriminatory. Compelling reasons (up to 17%) include keeping political units together.

      1. Reynolds v. Sims (1964): Creates OPOV, bans county-based districts without regard to population.

      2. Gaffney v. Cummings (1973): Deviations from perfect equality up to 10% are ...

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