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Unit 1 - The Right to Vote​
- Not a P&I of citizenship (Minor v. Happersett)
Early Ideas -​ The SC has long emphasized that the right to vote is an essential american
element, but that it is not enumerated in the Constitution (US. v. Cruikshank)
➔ 14A§1: ​All persons born or naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
➔ 14A, §2​: Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State, excluding
Indians not taxed. But when the right to vote at any election for the choice of electors for
President and Vice President of the United States, Representatives in Congress, the
Executive and Judicial officers of a State, or the members of the Legislature thereof, is
denied to any of the male inhabitants of such State, being twenty-one years of age, and
citizens of the United States, or in any way abridged, except for participation in rebellion,
or other crime, the basis of representation therein shall be reduced in the proportion
which the number of such male citizens shall bear to the whole number of male citizens
twenty-one years of age in such State.
➔ Art 2, ​§2 - ​Members of the House shall be chosen by the members of the states
Right to Vote - ​The right of all US citizens over 18 years of age to vote is mentioned in the 14A,
15A, 19A, 24A, and 26A. It extends to all national and state government elections, including
primaries. The right is fundamental; thus, restrictions on voting, other than on the basis of age,
residency, or citizenship, are invlaid unless they can pass strict scrutiny.
➔ Early formulations - Not a right pe se, but once granted protected: ​Minor v.
Happersett held there was no expression Constitutional right to suffrage, even with the
passage of the 14A, and instead 14A worked to protect those rights that the Constitution
did grant, it did not create new rights in itself Citizenship, while important, does not itself
guarantee the right to vote
➔ Early Enforcement of 14A - ​Struggled to gain traction. Enforcement Acts following the
Civil War were struck down as being overbroad and were struck down for exceeding
Congressional authority, especially as it related to criminal charges (US. v. Reese)
◆ Resese struck down the entirety of the Enforcement Act of 1870 even though
certain sections were clearly constitutional, because the wording was not precise
enough
◆ Finally gained some teeth with ​Yick Wo,​ which held that the 14A operated to
prevent discrimination and that such ​ discrimination was, therefore, illegal, and
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the public administration that enforced it was a denial of the equal protection of
the laws in violation of U.S. Const. amend. XIV. This applied to criminal context
➔ Passage of the 1965 VRA - ​Gave teeth to Congress for enforcing the 14A to the states by
stating that “no voting qualification or prerequisite to voting, or standard, practice, or
procedure shall be imposed or applied by any State or political subdivision to deny or
abridge the right of any citizen of the United States to vote on account of race or color.”
If such devices had been used, any changes to the voting laws of such a jurisdiction
would need to be approved by the attorney general in order to be implemented
◆ A jurisdiction could be found exempt if they had not used a test or device 5 years
previous to the Act’s passage or in the period following a federal oversight of the
district (​§4). AG would determine whether or not such a test existed, and was any
prerequisite for character determinations, voucher of another voter
◆ Further, a district could come under federal oversight if less than 50% of their
voting age population had voted in the previous election
◆ Also got rid of poll taxes
➔ Challenges to 1965 VRA and 24A - ​Dealt with states eliminating the poll taxes on the
federal elections, but continued to administer them for local and state elections. Harman
v. Forsenssius. Court held that such taxes, even when giving an alternative means for
gaining the right to vote were unconstitutional
◆ This ruling was further reinforced by Harper v. Virginia, in which a very slight
poll tax on federal election registration was rejected even with the state’s interest
of collecting revenue being declared. The Court chose to use a heightened
standard for the case instead of relying on the dissent’s opinion that only rational
basis needed to apply
● Directly overturned a previous decisions, indicating the serious nature of
the break between precedent and new formulations of the law
● Violated 14A EPC as imposing a “wealth requirement” onto the franchise
➔ Once Extended, Right to Vote cannot be Generally Infringed in any Way, strict
scrutiny is necessary, and therefore to avoid you could have appointment
◆ Kramer​ says that if a challenged state statute grants the right to vote to some bona
fide residents of requisite age and citizenship and denies the franchise to others,
the Court must determine whether the exclusions are necessary to promote a
compelling state interest. The classifications must be tailored so that the exclusion
of appellant and members of his class is necessary to achieve the articulated state
goal. But in this case, the classifications in § 2012 permitted inclusion of many
persons who had, at best, a remote and indirect interest in school affairs and, on
the other hand, excluded others who had a distinct and direct interest in the school
meeting decisions, thus, violating the equal protection clause.
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States and Restrictions on Right to Participate - ​From an early time the Court tried
enumerating what things a state might do to limit rights to vote. The states are given wide
latitude for implementing non capricious, neutral, and rationally related restrictions on the right
to vote. Right to vote for members of house was originally fixed to voting for lower chamber of
state house until 17A. Perhaps the one way states have prevented is through wanting an
intelligent and informed voting base (age requirements, now Constitutionally amended, who may
appear on a ballot, and reading and writing provisions) or 14A ​§2 enumerated classes
➔ Non Discriminatory Reading and Writing Provisions to Gain Right - ​This kind of test
was initially acceptable by the court in Lassiter v. Northampton. If the test was used
without discriminatory intent (therefore the law would be viewed with a rational basis
like lens. However, there was a portion of the statute that was voided, which included a
grandfather clause that would allow some illiterates to vote if their grandparents voted
(which would allow whites to vote)
◆ Rationale was that the state had a valid state interest in having an informed
electorate that could be informed about the topics that they were voting on
◆ States had broad powers to establish non-discriminatory standards for the exercise
of that right. Because the Court found that the ability to read and write had some
relation to standards designed to promote intelligent voting, the Court held that
the literacy requirements were constitutional on their face where the literacy
requirements were neutral on race, creed, color and sex.
➔ Citizenship Requirements -​ In ​Skafte v. Rorex​, the Court held that the state’s citizenship
requirements for a school district election do not contravene the Equal Protection Clause
of the Fourteenth Amendment. The state had a rational interest in limiting participation in
government to those persons within the political community. Aliens are not a part of the
political community. Differs heavily from ​Kramer,​ citizenship offers a more concrete
rule
◆ § 2 of 14A has language directly to this point, that only citizens are truly afforded
the right to vote and therefore § 1 can’t make §2 obsolete
➔ Felons Rights​ - The court has ruled that a criminal record was a factor that a state could
lawfully take into consideration in determining the qualifications of voters. Justified,
perhaps, as adding legitimacy to the elections (even when the crime is not connected at
all)
◆ Because 14A § 1, contained language suggesting that the practice of depriving
felons of voting rights was acceptable, and because this practice was historically
viewed as valid, respondents were not entitled to register as voters under the
Equal Protection Clause of U.S. Const. amend. XIV. This came even though § 2
provided a narrower scope of limiting criminal rights to those convicted of
committing specific crimes (most states already banned felons from voting)
◆ This can be the case even when the crime does not share a nexus to the right to
vote, such as committing voter fraud, but is instead a felony like selling drugs
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➔ Residency Requirements - ​Relatively short residency requirements restarting the right to
vote (for example, 30 days) are valid because there is a compelling interest in ensuring
that only bona fide residents vote. However, longer residency requirements will probably
be held invalid (like one year) because they discriminate against newer residents without
a compelling reason, and thus violate the EPC. Such residency requirements might also
violate the right to interstate travel. Congress may override state residency requirements
entirely in presidential elections (Oregon v. Mitchell)
◆ Armed Forces - ​The right to vote cannot be automatically denied to members of
the armed forces stationed in a particular locality. They must be given an
opportunity to prove their residency
◆ Compare - Non Residents - ​Laws that prohibit nonresidents from voting are
generally valid as long as they have a rational basis. This is especially true in
cases that involve voting on matters that are uniquely confined to the geographic
region at issue
➔ Identification - ​A state may require in-person voters to show a government issued voter
ID. This is an “even handed” protection of the integrity of the electoral process and is
justified by a sufficiently weighty interest of detecting voter fraud and protecting public
confidence in elections
➔ Property Ownership - ​Conditioning the right to vote, to be a candidate, or to hold office
on property ownership is usually invalid under the EPC, since property ownership is not
necessary to any compelling governmental interest related to voting (Kramer v. Union
School District). However, certain special purpose elections (like a water storage district
election) can be based on property ownership.
◆ This is even the case for votes that concern only certain members of a community
that might have the most at stake from the outcome
➔ Poll Taxes - ​Poll taxes are prohibited under the 24A and EPC of 14A and the SC has held
that they also violate EP because wealth is not related to the government’s interest in
having voters vote intelligently (Harper v. Virginia). No rational basis for the distinction
Primary Elections
➔ State Regulations of Party Primaries - ​States may exercise some control over primary
elections, but such regulation is subject to restrictions under the 1A (freedom of political
association) and the 14A (EPC). Thus, to prevent inter party raiding, the SC has held that
states can require a person to have been registered with a party for a reasonable time
before that party’s primary election in order to be eligible to vote in the primary.
However, if a political party wishes to open its primary elections to anyone, whether or
not registered with the party, the state cannot prohibit this because the state interest here
is overridden by the right of political association (Tashihian v. Repbulican Party)
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➔ States may Subsidize Primaries of Major Parties - ​States may subsidize the primaries
of major parties without similarly defraying the costs of mechanisms through which
minor parties qualify for the general election. This is true as long as the other parties are
given some effective way to qualify for the general election, and the way in which they
may qualify is not unduly burdensome
How does Voting Operate?
As Participation - ​To begin, the right to vote involves participation: the right to cast a ballot that
is counted. Thus, participation claims invoke assertions of anonymous equality: whatever the
plaintiff’s individual characteristics, she is entitled to participate fully in community governance
by casting a ballot. Relies heavily on existing legal frameworks for implementation.
As Aggregation - ​Each voter has an interest in the adoption of aggregation rules that enable her
to elect the candidate of her choice Unlike participation claims, aggregation claims are
essentially outcome- regarding: They rest upon assertions that the voter has been denied a fair
opportunity to elect her preferred representative. This view heavily scrutinizes how we decide
political boundaries and how the law operates within these boundaries to determine how
elections are decided
As Governance - ​Thinking about voting in this way requires abandoning the view of voting as a
declaratory event—the act of pulling a lever on Election Day—and replacing it with an image of
voting as part of an ongoing conversation. Makes sure that elected officials adequately represent
their voting coalitions in a way that makes it so votes actually are translated into political action.
Why do we Vote?
Rationality of Voting - ​Might on its face actually be economically inefficient to vote, but there
are a variety of reasons to vote, some which go beyond the mere casting of a ballot for a winning
candidate for some direct expected return
➔ Voting to Change Outcomes - ​Usually irrational, as the chances of a single person's vote
actually be determinative in the outcome of the election is highly unlikely
➔ Voting to Change Mandates and Policies - ​This theory makes voting more rational, as a
person simply wants to change the margins of victory or loss because that, in turn, can
change how the elected official governs following election. Shortcomings here come
from the fact that elected officials usually do not govern based on their vote margins
➔ Other Reasons to Vote -​ Expressive theory of voting holds that voters vote in order to
express themselves. On the expressive theory, voting is a consumption activity rather
than a productive activity; it is more like reading a book for pleasure than it is like
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reading a book to develop a new skill. This kind of voting might be more rational,
because it is not really outcome driven
Unit 2 - Drawing Districts
Dilution of Right to Vote (Through Reapportionment) - ​The system under which we operate
perhaps would be better described as “equal amounts of constituents per voting representative.”
Further seen as inoperable in practice given the fact that population trends change over time and
the Census is not able to adequately follow these changes in a timely fashion. However, Baker v.
Carr at least initially said that questions regarding apportionment were justiciable in 1962
➔ One Person, One Vote Principle - ​The EPC of the 14A has been interpreted to prohibit
state dilution of the right to vote, and Article 1 has been interpreted to place the same
type of restriction on the federal government​. ​Reynolds v. Sims (1964): EP requires equal
representation; all votes must be weighted equally (majority must be able to effectuate its
will). Reynolds said that Alabama could not dilute vote on where people lived
◆ Fundamental, personal right (strict scrutiny); both houses of state legislature must
be apportioned based on population (Senate analogy does not apply in state
elections)
◆ States: more flexible, may rely on political boundaries (deviation may suggest
gerrymandering); deviation requires legitimate state concerns to effectuate
rational state policy (similar to strict scrutiny?)
◆ Establishment of Voting Districts - ​Whenever a governmental body establishes
voting districts for the election of representatives, the number of persons in each
district may not vary significantly. This is commonly referred to as the one
person, one vote doctrine
● Congressional Elections - Almost Exactly Equal - ​States can establish
the districts for congressional elections. However, the SC requires almost
exact mathematical equality between the congressional districts within a
state; thus, deviations of even a few percentage points between the
congressional districts within a state may result in the invalidation of the
congressional district plan
○ Compare with - Apportionment Among the States - ​Congress
apportions representative among the states “according to their
respective number” (Art. 1 §2). Congress’s good faith choice of
method in so apportioning the representatives commands far more
reference than state district decisions and is not subject to the same
precise mathematical standard as state plans
● State and Local Election - Variance not Unjustifiably Large - ​The
variance in the number of persons included in districts for the purpose of
electing representative to a state or local governmental body must not be
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unjustifiably large, but the districts need not be within a few percentage
points of one another. If a state can show that the deviation from
mathematical equality between districts is reasonable and tailored to
promote a legitimate state interest, the law establishing the districts may
be upheld. 10% based on upper and lower bounds of over and under
apportionment is presumptively invalid
◆ Districts can be Measured Using Total Population BUT MAY NOT
CONSTITUTIONALLY BE REQUIRED TO ACCORDING TO
EVENWEL CONCURRENCE - ​States need not measure the equality of their
districts by counting only persons eligible to vote. It is sufficient to count the total
population (Evenwel v. Abbott). Representatives serve all the residents of their
districts, not merely those eligible to vote; The one person, one vote principle is
best served by taking the entire population into consideration. This includes both
federal elections and elections in the state legislature that concern house seats but
not necessarily senate seats. In one case in Hawaii, the state was allowed to move
to a Registered Voter system because of the massive disparities that would exist
using people who lived there given the amount of military members stationed
there
◆ Scope - ​The one person, one vote principle applies to almost every election where
a person is being elected to perform normal government functions exceptions are:
○ Appointed official and officials elected at large
○ Special purpose government units
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Gerrymandering - ​The Court has essentially held that the interests of community of interests,
compactness, respect for city and county boundaries, fairness to minorities, and fairness to
political parties are not necessarily the prime concern in Constitutionality, except for perhaps
racial voting blocs. Courts are very cautious to step in for other concerns, because it has
expounding that the principle place for these decisions come from politics, not the judiciary
◆ Racial Gerrymandering - ​Race (and presumably other suspect classifications)
cannot be the predominant factor in drawing the boundaries of a voting district
unless the district plan can pass strict scrutiny. Moreover, a districts’ bizarre shape
can be used to show that race was the predominant factor in drawing the district’s
boundaries (Shaw v. Reno), although a bizarre shape is not necessary to such a
finding. The person that is challenging the reapportionment has the burden of
proving the race-based motive (Shaw . Hunt)
◆ Political Gerrymandering - ​Partisan gerrymandering claims present political
questions beyond the reach of the federal courts. This was initially not the case, as
in 1986 Davis v. Bandemer had said these cases could come before the court.
Federal judges have no license to reallocate political power between the two
major political parties, with no plausible grant of authority in the Constitution,
and no legal standards to limit and direct their decisions. Judicial action must be
governed by standard, by rule, and must be principled, rational, and based upon
reasoned distinctions found in the Constitution or laws. Judicial review of partisan
gerrymandering does not meet those basic requirements (Rucho v. Common
Cause)
● Is a ruling based on a limited reading of the causes controversies clause of
Article 3 for the ability of the judiciary to enter this realm
● Weighed against Article 1 section 4 which states that “The Times, Places
and Manner of holding Elections for Senators and Representatives, shall
be prescribed in each State by the Legislature thereof; but the Congress
may at any time by Law make or alter such Regulations, except as to the
Places of chusing Senators.
● This comes even in the face of the existence of efficiency gaps (wasted
votes do to packing or cracking), totally asymmetric voting splits (65% of
votes for Republicans would result in more seats than if the state had
voted 65% democratic), and the fact that some Repgulbican states had
drawn maps that were so biased they neared the 99% of bias
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● There were also complaints of individual dilution (not just the whole mess
of gerrymandered districts from a more sky level approach)
➔ This holds, even with pretty clear examples of intent, facts and causation
◆ Makes the judicial questions here very difficult and court has
essentially punted on the issue, even with perhaps bad consequence
Multi-Member Districts - ​A state is generally free to have some multi-member districts
together with some single-member districts, as long as the number of members representing a
district is proportional to its population. However, single-member districts or multi-member
districts will be held to violate EPC (even if they meet one person one vote principle) if the
district lines were drawn on the basis of unconstitutional criteria, such as to suppress the voting
power of racial minorities or an identifiable political group. Multi-member districting is not
allowed for Federal elections, and very few jurisdictions use it for their state and local elections
due to the general disdain for them
States may use Independent Commissions to Draw Districts - ​To avoid gerrymandering,
states may use independent commissions to adopt congressional districts, rather than allowing
the state legislature to redistrict (Arizona State Leg. v. Arizona Independent Redistricting
Commission)
Redrawing itself, The Courts vs. the States -​ (Perry v. Perez) ​The Court has held that it was
unclear whether the district court used the proper standards to create their interim plan. Portions
of the district court's plan seemed to be based on State policy considerations, and portions had no
relation to the outdated plan or the proposed plan. A district court may redraw districts, but it
should look to the State's proposed plan and the policies surrounding it for guidance. Only if
there are massive discrepancies, and only in the case the previous plan cannot be used (as was
the case here where the Census prevented the old plan from being used). Otherwise the courts
should stay out of the thicket. This case came after Texas created a new plan that seemed off in
its application, and was pushed through without preclearance under Section 5 of VRA. Thomas
wrote separately saying Section 5 was Unconstitutional
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Voting Rights Act Again and Changes​- Original Act only and its interpretation did not look at
the effect of possible discrimination, only looked at intential acts of discimination in the voting
realm
VRA is Amended in 1982 - ​Add to the act that the political process leading up to elections may
not have previously been properly protected, and had less opportunity to participate in the
process and also TO HAVE THE ABILITY TO ELECT PREFERRED INDIVIDUALS OF
THEIR CHOICE (not to be proportional but looks beyond direct racial discimination to effects
of voting). Language states:
➔ A violation of subsection (a) is established if, based on the totality of circumstances, it is
shown that the political processes leading to nomination or election in the State or
political subdivision are not equally open to participation by members of a class of
citizens protected by subsection (a) in that its members have less opportunity than other
members of the electorate to participate in the political process and to elect
representatives of their choice.
➔ Thornburg v. Gingles - The Test ​(districts are multi-member districts and others are
single member districts). Sets up a test, but this test has a fairly difficult application
boiling beneath the surface. The majority does not officially adapt getting black
candidates themselves in office, rather the preferences of voters. Emphasizes geographic
cohesion, because relying too heavily on racial analysis perhaps barrels the Court toward
affirming racial factionalism. THIS TEST DEALS WITH SECTION 2 OF VRA
1. The racial or language minority group "sufficiently large and geographically
compact to constitute a majority in a single-member district"
2. The minority group is "politically cohesive" (meaning its members tend to
vote similarly);
3. AND The "majority votes sufficiently as a bloc to enable it ... usually to
defeat the minority's preferred candidate.
◆ Court maintains that this system is effectively racially motivated to give whites
more power than blacks. Congress can successfully expand 15A through effect
rather than the direct language of that amendment that only prevents intentionally
direct disenfranchisement
◆ The redistricting plan apportioned "politically cohesive groups of black voters"
into districts where blocs of white voters would consistently defeat the black
candidates. In violation of the Voting Rights Act, this damaged the ability of
black citizens "to participate equally in the political process and to elect
candidates of their choice."
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◆ In applying Gingles, Courts will look at:
● The extent of any history of official discrimination in the state or political
subdivision that touched the right of the members of the minority group to
register, to vote, or otherwise to participate in the democratic process
● The extent to which voting in the elections of the state or political
subdivision is racially polarized
● The extent to which the state or political subdivision has used unusually
large election districts, majority vote requirements, anti-single shot
provisions, or other voting practices or procedures that may enhance the
opportunity for discrimination against the minority group
● If there is a candidate slating process, whether the members of the
minority group have been denied access to that process
● The extent to which members of the minority group in the state or political
subdivision bear the effects of discrimination in such areas as education,
employment and health, which hinder their ability to participate
effectively in the political process
● Whether political campaigns have been characterized by overt or subtle
racial appeals
● The extent to which members of the minority group have been elected to
public office in the jurisdiction.
◆ We have an exception however in Cooper v. Harris, in which the Court held: ​A
State may not use race as the predominant factor in drawing district lines unless it
has a compelling reason (this usually comes in the form of previous
discrimination). The Equal Protection Clause of the Fourteenth Amendment limits
racial gerrymanders in legislative districting plans. It prevents a State, in the
absence of sufficient justification, from separating its citizens into different voting
districts on the basis of race. However, if there is some other reason that is the
predominant factor, it may be upheld (might be a way to insulate from a racial
gerrymandering case by arguing that the predominant factor was instead
politically motivated)
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Unit 3 - Federal Power and the Right to Vote (Largely through the
Racial Lens) - ​States are largely to their own devices on how they
conduct their elections, but Congress has intervened Constitutionally
before. How large is the authority to implement laws in the first place,
and then how far may Congress go in enforcing the laws once in place.
Lastly, what is the role in how the Courts decide these cases (probably,
at large, want to avoid themselves direct rulings implementing direct
police actions
Constitutional Provisions along with Acts Passed by Congress
14A - ​Citizenship (though right to vote is not guaranteed by P&I, Section 2 is apportionment
based on allowing citizens to vote, section 5 allows Congress to pass laws in order to enforce
14A
15A - ​Right to vote shall not be denied, Section 2 Congress given power to pass laws to enforce
(has no language indicating that this only applies to federal election)
17A - ​People choose the Senators, not the states
1993 Voter Registration Act, 2002 Act to improve Election Voting Materials, HR 1, Access
Act
Enforcement Acts - ​Came as a result of voter intimidation, non-uniformity in how people voted,
and a broader wish to continue the goals of Reconstruction
➔ Initially with US v. Cruikshank, there is a deep skepticism within the Court about
whether or not the Federal government has the ability to intervene in elections
Elections Clause (Art 1, §4) - ​The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the Legislature thereof; but the
Congress may at any time by Law make or alter such Regulations, except as to the Places of
chusing Senators
Presidential Electors Clause (Art 2, §1) - ​Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators
and Representatives to which the State may be entitled in the Congress: but no Senator or
Representative, or Person holding an Office of Trust or Profit under the United States, shall be
appointed an Elector. The Congress may determine the Time of chusing the Electors, and the
Day on which they shall give their Votes; which Day shall be the same throughout the United
States.
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Ballot Stuffing - Ex Parte Siebold (pretty broad ruling for wide Congressional power)
➔ State law said one ballot per person, person broke it, Congress also had a law on record
that if you broke state law as pertaining to an election, you could also be charged
federally due to the sole fact you had broken the state law
◆ Upheld as valid, though it comes up against anti-commandeering principle, as the
law effectively regulated the conduct of election officials
➔ This was held valid under Art. 1, ​§4, as Congress was making a “matter” of the election
law
Ku Klux Cases (Conspiring to Deny Privilege to Vote, Or Conspiring to Intimidate at a
Presidential or Congressional Election)
➔ This does not deal with does Congress have the authority to sweep in on top of state
powers to monitor the manner in which an election is conducted, rather this case deals
individual conduct outside of the election process itself
➔ Court held that the federal government "must have the power to protect the elections on
which its existence depends from violence and corruption” and that when combined with
the Necessary and Proper Clause, the Federal Government could create legislation in
which they oversought federal elections that are more generally carried out by the states
Direct Denial of Vote Before Voting Rights Acts (Giles v. Harris)​ - Had to pass a literacy test
or could be grandfathered in to pass. Individual wants to be granted relief and registered to vote
by the Court
➔ Court denies the motion for injunctive relief arguing it would be no good to simply put
their name on a piece of paper and somehow enforce such a scheme without direct
federal oversight (with actual force to enforce)
➔ Federal Courts (ahead of the voting rights act) really weren’t ready to step in without
explicit Congressional authority to do so, meaning that there was very little remedy
before the passage of the Acts
Early Campaign Finance (Burroughs and Cannon)​ - Regulation on Presidential Elections
➔ Is Congress authorized to limit campaign expenditures through the Presidential Electors
Clause, which has no “manners” regulation?
◆ Go back to Yarborough and say essentially Presidential and Congressional
election should be the same
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◆ Also lean into nearly a “necessary and proper” reading that Congress should have
the authority to implement measures that will continually instill confidence in all
of the elections and to ​protect the integrity of the federal election process.
Voting Rights Act is Passed - ​Congress relies on Commerce Clause to pass the Act, even
though it pretty well is examined under 15A analysis. Works greatly by shifting the burden on
questionable states to show that the change they are implementing is valid, and voting
registration skyrockets. Marks a massive change in power structure between Federal and state
governments. Every 5 years the Act is relooked at, which is extended periodically until Shelby
County in which the Act is overturned
➔ Bailed In -​ When a court makes a specific finding that there is some sort of
discirmination going on in a district, you can be bailed into oversight without a finding
against 4b
➔ Bailed Out ​- Districts could show up at DOJ and show good character for a period of
time and be bailed out of direct oversight and would only be subject to probation
Challenges to VRA
Katzenbach v. SC​ ​- First case to examine the newly implemented Federal oversight regime that
has Attorney General that oversees changes to election laws based on criteria in rule 4b:
➔ Prohibited Device or under 50% registration or turnout, the district is marked as a
preclearance jurisdiction, which is one that means any change to any election law must be
precleared by the AG
➔ In this case, SC actually opens polls for a longer amount of time and challenges the VRA
as Unconstitutional
➔ Noting that the enforcement clause of the Fifteenth Amendment gave Congress "full
remedial powers" to prevent racial discrimination in voting, the Act was a "legitimate
response" to the "insidious and pervasive evil" which had denied blacks the right to vote
➔ Ultra deferential to Congressional authority over the states and their elections
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Oregon v. Mitchell -​ Contest to 1970 Amendment to VRA that allowed would lower voting age
to 18 and would make residency requirements for presidential elections disallowed. The 26A was
passed in direct consequence of this ruling
➔ The Court held that Congress had the power to enact the amendments that changed the
voting age for federal elections, abolish literary tests at the polling station, and abolish
state residency requirements for presidential and vice presidential election. However, the
Court held that lowering the voting age for state and local election was beyond
Congressional purview. The Court held that the Framers intended for Article I Section 4
of the Constitution and the Necessary and Proper Clause to grant the States the power to
make the laws that govern elections and for Congress to have the power to alter the laws
if necessary. The Court also held that the legislative history surrounding the enactment
and enforcement of the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments
support the role that Congress plays in preventing racial discrimination in the electorate
without denying the states their rights. Without evidence that the states use the
21-year-old voting requirement to discriminate based on race in state and local elections,
Congress does not have the right to intervene. The Court held that the literacy test bans
were constitutional under the enforcement clause of the Fifteenth Amendment.
➔ Justice William O. Douglas concurred in part and dissented in part. He disagreed with the
majority’s ruling in regards to reducing the voting age in state and local elections. He
argued that, because voting is a “fundamental right,” which Congress ensures under the
Equal Protection Clause, Congress could legislate voting age at the state level as well as
the federal. J
➔ ustice John M. Harlan concurred in part and dissented in part. He agreed with the
majority’s opinion that Congress could prohibit literacy tests but disagreed on the issue of
Congress’ ability to impose regulations on voting age and state residency requirements.
He argued that the legislative history surrounding the Fourteenth Amendment supported
the preeminence of the right of the states to legislate voting. Since the Constitution does
not explicitly grant Congress the right to legislate voting requirements, the right is
reserved to the states. Without evidence that people between 18 and 21 and people who
do not meet state residency requirements are being unconstitutionally discriminated
against, Congress cannot intervene.
➔ Justice William J. Brennan, Jr., Justice Byron R. White, and Justice Thurgood Marshall
authored an opinion concurring in part and dissenting in part. They disagreed with the
majority’s opinion that Congress cannot legislate voting age in state and local elections.
They argued that, while the states have the right to determine qualifications for voting,
Congress has the right to legislate the exercise of this power under the Equal Protection
16
Clause of the Fourteenth Amendment. Since 18-year-olds are treated as full adults under
other aspects of the law, there is evidence that 18- to 21-year-olds are being denied voting
rights to which they are entitled, and Congress has every right to intervene.
➔ Justice Potter Stewart also wrote an opinion concurring in part and dissenting in part. He
disagreed with the majority’s opinion that Congress could legislate voting laws in federal
elections. He wrote that the Framers clearly intended the right to legislate voting to be
reserved for the states and that the Constitution does not allow Congress to supersede that
right without a compelling interest. He argued that the age qualification did not represent
a compelling interest to allow Congress to enact legislation on the issue.
Arizona v. Inter Tribal​ - ​Robust reading of “Manners” clause, casts doubt on legitimacy of
Oregon v. Mitchell, and allows Congress to very nearly preempt state election laws
➔ The Supreme Court held that NVRA preempts other voter registration requirements. To
allow states to impose additional requirements would allow them to reject voter
registrations applicants who met the federal requirements to vote, which would defeat the
purpose of the Act. However, the Court also held that Arizona may petition to have more
requirements added to the federal standard. I
➔ Justice Anthony M. Kennedy wrote that there is no judicial basis for the majority's
opinion that sometimes federal law preempts state law and sometimes it does not.
However, he also argued that a presumption against preemption was not necessarily the
best formulation of the relationship between state laws and federal ones. In this case,
Kennedy agreed with the majority's opinion regarding the NVRA preempting the Arizona
statute but not regarding the presumption of preemption.
Shelby County​ ​- Finally destroys Section 4b of VRA, mainly because Congress overstepped
their power in that they did adequately tailor the renewal of the VRA. Dissent argues we should
be looking at the powers of Congress post 1870 (when there were radical changes in the 14A and
15A) rather than the power of Congress from inception. SOR seems more like strict scrutiny
➔ Leading up to Shelby, there had been many amendments to VRA and some to the
Constitution itself (ban poll tax in 24A)
➔ Extended in 1970 to include not only jurisdiction under 50% turnout or jurisdictions that
used devices, also included 50% rule for 1968
➔ Same thing in 1975, extended for 7 years to 1982
➔ 1982 Congress adds in language minorities, AND EXTENDS FOR 25 years
➔ 2006 Congress jumps a year forward to advance, do not update the rules for pre clearance
however
◆ Formula was not updated, just renewed for another 25 years
➔ NAMUDO - Small utility election still covered, even though the state was not covered
◆ Kicks the can down the road though raises concerns about Congressional power
over these kind of small elections
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➔ Justification of Congress to pass the act not tailored enough to its aims (or perhaps not
important enough) could no longer outweigh state sovereignty or states being treated
equal. Outcome is only bail in under VRA 4a, which needs more explicit racial motive
Veasey v. Abbott - ​Post unconstitutionality of VRA 4b, plaintiffs now have a burden and have
attempted to use VRA 2 as an effect instead of solely an intent argument. The effects can be
shown through lower court fact finding instead of only invoking VRA 2 effects claims in vote
dilution contexts. The test from Veasey is:
1. [T]he challenged standard, practice, or procedure must impose a discriminatory burden
on members of a protected class, meaning that members of the protected class have less
opportunity than other members of the electorate to participate in the political process
and to elect representatives of their choice
2. AND [T]hat burden must in part be caused by or linked to social and historical
conditions that have or currently produce discrimination against members of the
protected class.
a. This means looking at the 9 parts emphasized in the Gingles Test
➔ Instead of the state being burdened by going to DOJ to show that a law does not have a
disproportionate effect on minorities, now the burden is on plaintiff to show the disparate
impact of the law. For this case, it came down to whether or not minorities were less
likely to have voter ID cards that they needed to vote, the court punted this question to
the lower court
➔ Questions that still remain regarding Section 2
◆ 15A is solely about intent, Section 2 is prophylactic, which protects beyond the
Constitution's words
◆ The test from this case does not come from the wording of the statute itself, but
rather from the Court making a test
◆ Court does not want to stretch too far here, might get Section 2 struck down
➔ Court has, since Shelby, partially amended nationwide preclearance moves and it is likely
to be passed in the future. Makes all states under the purview of preclearance and also
gets closer to a tailoring that impacts all
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Unit 4 - Voting as Association
Electoral Process - ​Laws regulating electoral process might impact the 1A rights
of speech, assembly, and association. The SC uses a balancing test in determining
whether a regulation of the electoral process is valid: If the restriction on the 1A
activities is severe, it will be upheld only if it is narrowly tailored to a compelling
interest, but if the restriction is reasonable and nondiscriminatory, it is generally
upheld on the basis of the states’ important regulatory interests surrounding
elections (Burdick v. Takushi - upholding prohibition against write-in candidates in
Hawaii).
What are Political Parties? ​- Political parties themselves are a complex beast that has leaders,
and activities, and often can act like a corporation, but remain amorphous for Constitutional
purposes. It is made of members, leaders, and they conduct activities both in the public and
private realm
➔ Run largely by states that simply affiliate themselves with the larger national political
party
➔ Run their own primaires
◆ Presidential nomination process is a bit different because of federalism concerns
◆ However, intra state primaries are nearly entirely up to the states
Presidential Primaries Regulation- ​Acts as a winnowing action for chooses a candidate at large
in the longer run even after the state election. To some extent though, the party really does have a
choice on who they even include on the ticket, before such a choice gets to the people. Parties
can even set some rules on who can run, though there may be have some leniency on running
actually on the party platform
➔ From the beginning, state parties have really tried to limit their membership (and usually
these distinctions are upheld unless on account of race) especially in primaries
◆ Nixon v. Herdon g​ rants private damages for a black man attempting to register as
a Democrat, saying that the statute at hand undermines EP when the law was an
obvious infringement of the Fourteenth Amendment because it discriminated
against African-Americans solely because of the color of their skin. There was no
rational basis for the statute.
● Left the question open on whether a party itself could pass such a law
rather than a state
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○ Later Nixon also sued the party and won as well
Congressional and Other Primaires - ​Really open the door for federal government to establish
rights to the primary. These at least lend credence to the fact the federal government can get
involved, but this does not quite yet access what the associationational rights are implicated
➔ US v. Classic -​ Sets the stage for litigation on primaries (given the use of primaries for
winnowing and being an integral part of the election itself was relatively unknown when
the Constitution was written
◆ Interference with the right to vote in the Congressional primary is, as a matter of
law and in fact, an interference with the effective choice of the voters at the only
stage of the election procedure when their choice is of significance, since it is at
the only stage when such interference could have any practical effect on the
ultimate result, the choice of the Congressman to represent the district.
◆ Couched in Article 1 § 2 which gives qualified voters of each state the right to
elect their congressional representatives
◆ We can therefore collapse the right afforded in the general to those in the primary
(at least as the right involved implicates a protected class)
Political Party Membership Regulation - ​The state has less interest in governing party
activities than in governing elections in general. Thus, the Court has held invalid a statute
prohibiting the governing committee of a political party from endorsing or opposing candidates
in the primary election. Additionally, a state cannot require political parties to allow non party
members to vote in the party’s primary elections (California v. Jones). Similarly, the Court has
held invalid state regulations concerning the selection of delegates to a national party convention
and the selection of candidates at such elections
➔ Tashjian v. Rep​ - ​State law disallowed the Repbulican party to open up its primaries to
independent voters. This even though the party want to open their doors in order to
encourage more moderate opinions and gain a larger base through participation
◆ Court held ​The United States Constitution grants to the states a broad power to
prescribe the times, places and manner of holding elections for senators and
representatives, Article 1, Section 4. which power is matched by state control
over the election process for state offices. The power to regulate the time, place,
and manner of elections does not justify, without more, the abridgment of
fundamental rights, such as the right to vote, or the freedom of political
association.
◆ 1A > Article 1, Sec 4 when such a freedom of association is at issue
◆ Deals much more with the rights of the parties to define its membership, as
opposed to the citizens not being able to partake in the primary itself (there was a
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relatively lax standard for citizens being able to register up until the day before
the primary in order to partake)
◆ Justification by the state of administrative costs, party raiding, voter confusion
and promoting the interest of the two-party system are not enough
Judicial Candidate Selection - ​A state law that permits political parties to choose nominees for
state judgeships at state conventions does not violate the freedom of association rights of
candidates for judgeships simply because the historic domination of party leaders results in
strongly favoring those judges that they support. This process has been a traditional means of
choosing party nominees
Ballot Regulation
Signature Requirements - ​The Court has found that the interest of running an efficient election
supports a requirement that candidates obtain a reasonable number of signatures to get on the
ballot. Similarly, a state’s interest in promoting transparency and accountability in elections is
sufficient to justify public disclosure of the names and address of persons who sign ballot
petitions (Doe v. Reed). However, the Court has struck down a severe ballot restriction requiring
new political parties to collect twice as many signatures to run for county office as for state
office (Norman v. Reed)
Primary Voting Regulations - ​A state may enforce a party rule requiring that a person be
registered as a member of the party within a reasonable amount of time prior to the party primary
to be able to vote (Rosario v. Rockefeller). It may also require that voters in a party’s primary be
registered either in the party or as independents (The burden on the party’s associational rights is
not severe. Thus, strict scrutiny does not apply and the state’s important regulatory interest here
preserving political parties as viable, identifiable groups, and preventing party raiding, are
sufficient to justify the restriction. However, a state may not prohibit a party from allowing
independent voters to vote in the party’s primary if the party wishes to allow independent voters
to participate. Such a requirement constitutes a severe burden on the associational rights of the
party and can be justified only if it is narrowly tailored to serve a compelling interest (Tashjian v.
Republican Party)
Single Party Limitation (Non Allowance of Fusion Voting)- ​A state law that prohibits an
individual from appearing on the ballot as the candidate of more than one party does not impose
a severe burden on the association rights of political parties. The state’s interest in ballot integrity
and political stability are sufficiently weighty to justify the law (Timmons v. Twin Cities Area
New Party)
➔ This is largely because the ballot is meant for voting and deciding a political leader, they
are not primarily used to espouse ideologies of the competing parties or as a way to
collect data on which party gains more votes giving the same person with different
platforms
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➔ The associational rights of the second party are not violated enough given the ability to
choose literally anyone else in the world to be their candidate, and this fact gives tilts the
analysis toward the state in protecting the ballot integrity and stability
➔ Describe the burden on the party as non trivial but not severe
Nonpartisan Blanket Primary (Ability of Party to pick its own nominee) - ​A state primary
ballot law providing that candidates self-identify their party preference and that the top two vote
getters advance to the general election does not, on its face, violate the association rights of
political parties (Washington State Grange v. Washington State Republican Party)
◆ The law does not state that the candidate is a party’s nominee
◆ There is no evidence that voters would be confused by the self-identification
◆ And the state may design a ballot that will make these choices clear
◆ This case came after totally open blanket primaries in California were stuck down
for denying the right of the parties to pick their candidates (all top candidates
from each major party went on)
◆ In this situation, only two candidates went on, regardless of party
● Was an attempt to get around the fact that the state was preventing the
associational interests of the party by funneling the top candidate for them
(and thereby indicating the actual party choice of the party
● As long as there are identifiers that this was the candidate’s preference,
not the party itself, the court holds the primary scheme valid
Associative Burden Cases Before Getting on the Ballot - Nears rational basis (ability of
citizens to choose their own candidates or of the party to have candidate on ballot
➔ Anderson v. Celebrezze ​- Independent candidate unable to get on the ballot of a state that
has a filing deadline in March in order to get on the ballot, major burden, higher scrutiny
1. Look at the burden it has on voters (candidates obviously have a burden but they
do not have a right to appear on the ballot). Analysis is much more on the
individual able to select the candidate they want in an east way
a. In this case, the burden on the votes is real and substantial and in actuality
also heavily burdens the candidate too
2. Generally applicable burdens with be upheld if they have a significant state
interest against the burden (likely not to be too severe)
a. State says educated public is important (not accepted given the length of
time)
b. States says the date treats everyone the same, including the major parties
(not accepted because such a deadline still obviously burdens minor
candidates more and major candidates can often work around the date)
c. Political stability in preserving the two-party system (not a very
compelling case here)
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➔ Holds that: The impact of candidate eligibility requirements on voters implicates
basic constitutional rights. Freedom to engage in association for the advancement
of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due
Process Clause of U.S. Const. amend. XIV, which embraces freedom of speech
Burdick v. Takushi​ - ​Holds very different from Anderson, Hawaii’s ban on write in candidates
was upheld, limited burden, lesser scrutiny. Combined with Anderson, balancing test
➔ Th​e United States Supreme Court held that, for purposes of the ​First​ and ​Fourteenth
Amendments​, Hawaii's prohibition on write-in voting, and the requirement that a
candidate participate in the open primary in order to obtain a position on the general
election ballot, did not unconstitutionally limit access to the ballot by party or
independent candidates, and did not unreasonably interfere with the right of voters to
associate and have candidates of their choice placed on the ballot
1. Any burden on voters' ​freedom of choice and association was a very limited one,
given that
a. The state provided for easy access to the ballot, and
b. There was nothing content based about a flat ban on all forms of write-in
ballots
2. The prohibition on write-in voting promoted the state's legitimate interests in
a. Guarding against party raiding in the primary election
b. Avoiding the possibility of unrestrained factionalism at the general
election, and
c. Averting sore-loser candidacies in the general election
Crawford v. Marion ​(Voter ID Laws)​- Opens up associational questions in a wide variety of
questions, not simply cases involving minority parties. Adopts a middle-tier of burden.
➔ Strict voter ID Law ​- Sign and give a provisional ballot with ID to be shown later within
a certain period of time
➔ Non-Strict voter ID Law​ - Sign under penalty of perjury
➔ State argues:
1. Modernization of the voting system - Voter purging, updating the system in order
to make it facially more maintained and streamlines the actual voting day (dissent
argues the fact the state cannot clean their act up shouldn’t help them in the end
2. Voting Fraud - Preventing in person voting fraud no absentee (no IDs for these
ballots). Usually almost non existent, but links into next concern
3. Promoting confidence in the election results by the populous
➔ Burdens:
◆ Plurality looks at the specific group that is impacted by the law like indigent and
people who don’t want their IDs taken (which ups the burden due to smaller class)
● Argues for intermediate scrutiny, looks at actual evidence but does not
find enough
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◆ Concurrence argues that all voters should be looked at, no just a subclass (which
would lessen burden generally
● Argues for rational basis
◆ Dissent essentially argues process associated with obtaining an ID is big burden
Unit 5 - Presidential Elections, Recounts, and Contests
Presidential Primaries - ​The one election that includes all the states in the winnowing process
and perhaps the federal government should be more involved than in more state centric elections
➔ The entire process, however, is more indirect given Constitutional language that states
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a
Number of Electors, equal to the whole Number of Senators and Representatives to
which the State may be entitled in the Congress: but no Senator or Representative, or
Person holding an Office of Trust or Profit under the United States, shall be appointed an
Elector”
➔ People do not have a constitutional right to have their presidential vote counted
necessarily
◆ After passage of 12A, we had effectively gotten rid of electors as independent
actors
➔ However, electors still do have authority to vote as they wish, in 1948 we have several
faithless electors
◆ States react by making the individuals that are electors take a pledge to use
compel them to use their vote for the candidate the state has voted for
Early Conceptions (McPherson v. Blacker) -​ Michigan moves to a system that is not winner
take all for its electors in the election, which is challenged by citizens of the party that often wins
the majority of the vote in presidential elections.
➔ Can’t win using Art 2, section 1
➔ Try using 14A and 15A, in that, while giving individuals the rights to vote in a
presidential election is totally up to the legislature, once they extend that right they
cannot abridge it
➔ Court holds that “The Constitution does not provide that the appointment of electors shall
be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that
the majority of those who exercise the elective franchise can alone choose the electors. It
recognizes that the people act through their representatives in the legislature, and leaves it
to the legislature exclusively to define the method of effecting the object.”
➔ Plenary power to the states on how they chose and restrain their electors and how state
choose to divy up their electoral votes
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Later Issues
Committee Chair of Alabama v. Blair​ - ​First faithless elector case dealing with forcing electors
to stay loyal to the state vote by making them sign a sworn pledge that they will go along with
the vote
➔ At this time, however there is no punishment for going against the pledge
➔ Court holds that this is a valid move by the state, even with no enforcement mechanism
◆ However, the state at this point was not allowed to disallow the vote of a faithless
elector
➔ Does not go against 12A, because it still allows somewhat of an independent elector
Chiafalo -​ State says that an elector must sign a pledge and also that a faithless elector may face
a criminal penalty by doing so
➔ Holds that a state can compel action on the sworn pledge by its electors, with penalty if
the individual goes against the votes of the people
◆ Still allows the elector to do so, but means that there can be an enforcement
mechanism with criminal penalty
● Does not violate 12A because the elector still gets a vote
● Art 2 > 12A
● Concurrence says that 10A>12A
Standarless Recount - ​Counting uncounted ballots in a presidential election without standards
to guide ballot examiners in determining the intent of the voter violates the 14A EPC (​Bush v.
Gore​). EPC was denied because once the right to vote is granted you can’t be denied that right
arbitrarily, and the system by which the recount was happening violated this principle. Perhaps a
very limited scope of when this will be used. Emphasizes the Independent State Legislature
Doctrine, in which the Federal Court can rule on a legislature’s decision even when the State
Court disagrees
➔ This case also implicated the fact that a State Supreme Court was interpreting state law
but was still overridden by the federal courts (this is very rare to have happen). This came
after the SC has already declined to rule once and had sent back to state supreme court to
provide a better system for recounting and staying the count for the time being
◆ Time crunch made it difficult for lower court to expound an accurate rule to
govern the recount, so the SC stepped in to supply (basically stop counting)
◆ Because the state law for deadline to certify had passed (and this deadline
determined the presumption of a valid election) the Court declined to send the
25
case back to the lower court again to more give better guidance on how to
continue the recount
● The remedy issue was truly the contentious point of this case
Injunctive Relief Close to the Election
Purcell v. Gonzalez - S
​ tate passes a voter ID law weeks before the election, and a higher court
provides injunctive relief against the law because an election committee said the ID law was
passed to close to the election (11th hour)
➔ Conflicting judicial opinion (here the district court and appellate court disagreed on
whether to grant injunction) can cause harms to voters who do not know which order to
follow
➔ SC said that the fact finding court (district court) decisions should be upheld, especially
giving the relatively scant reasoning by the appellate court to grant the injunction
RNC v DNC -​ Absentee ballot case arguing about the ability of individuals to get their ballots in
time (Appellate Court offered extension on when the ballot is submitted, could be after the
election given how many people had not gotten their ballots)
➔ SC overrules because it is a significant departure from previous laws on the topic and it is
not the role of the courts to enter here
Roudebush v. Hartke - A
​ rticle 1, Section 5: Each House shall be the judge of its returns and
qualifications. Political branches decide whether or not to seat members, thereby getting around
executive or judicial appointments
➔ However, qualifications are listed and stuff like corruption are not listed
➔ Courts have gotten increasingly involved because of this fact, Congress has become
defereenital to this process
➔ Court here rules that the state must preserve the way with which they conduct recount,
but as long as this is the case, the judicial will remain on the sidelines so that the state
legislative branch can hash it out within its own body. Then it can be kicked to the
national legislative which can invoke the judiciary
Roe v. Alabama -​ ​Alabama absentee ballot procedure including signatures, notary, witnesses,
and secrecy envelope
➔ Some voters were missing requirements and under the law they would not be counted,
but some precincts decided to count them instead
◆ Might have not been an issue with a clear executive order that they would be
counted in this case
◆ History and rule of law were both clear the ballots should not be counted
26
➔ Concern is that past practices set the framework and that legally under 14A this was a due
process violation: Liberty makes voting a fundamental right
◆ Voter could have standing because their vote is possibly being diluted by
previously illegal votes, and would disenfranchise voters who would have voted
but for their accurate reading of the previous law
Franken Case - ​Another recount case where the challenger alleged by allowing the recount as
was violated his SDP rights in the way the recount was conducted, EPC rights, whether certain
ballots were not allowed to be counted, disallowing the challenger to inspect ballots
➔ This happened after both executive and Congress would not seat him until the judicial
process was done, which highlights the deferrence states and Congress really now take to
judicial oversight, contrary to initial readings of Article 1, Section 5
➔ Court declined to grant relief on any of the counts because of scant evidence
Florida Case -​ Actually goes to the House of Reps to decide on whether or not to seat an
individual
➔ Evidentiary hearings conducted both internally and externally, through electronic vote
systems, again not enough evidence and the contenstee loses
NC Case -​ Request to seat, Congress defers to the state to figure out its own system, extensive
voting fraud found in an investigation through interviews with multiple people; found by an
extensive amount of absentee requests alongside a lot of failed returns. Not decided by Court but
an internal executive board of election officials
➔ Brings into light when we have two witnesses, why we have rules for people picking up
ballots for others
◆ Not too often does this happen but when these anomalies do arise, the state is
there to decide how to investigate
➔ Remedy: Hard question given the fraud, and having a total revote is difficult; at the same
time, actually finding which ballots are illegal once commingled is extremely difficult
◆ Administrative Tribunal decides that when it could determine the election through
egregious fraudulent ballots and not possible to correct, or if there was egregious
and widespread voter intimidation to prevent voting in the first place, a re-vote
can be warranted
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Unit 6 - Campaign Laws - ​Not much regulation on the campaigns
themselves, but there are laws regarding how much campaigns can
spend. The speech itself is largely open due to 1A concerns
Beginnings: ​Buckley v. Valeo -​ ​Kicks off campaign financing law on disclosure regimes for
speech. Campaign questions are more concerned with bribery as well as information to public
➔ First, the Court held that restrictions on individual contributions to political campaigns
and candidates did not violate the First Amendment since the limitations of the FECA
enhance the "integrity of our system of representative democracy" by guarding against
unscrupulous practices.
◆ Main issue (and indeed the only issue with which the Court has ever restricted
contributions) dealt with the worry over actual or perceived corruption due to
direct contributions to a campaign
● Worried about direct bribery and quid pro quo both
● Equalizing speech has not been good enough and was overruled in
Citizens United
➔ Second, the Court found that governmental restriction of independent expenditures in
campaigns, the limitation on expenditures by candidates from their own personal or
family resources, and the limitation on total campaign expenditures did violate the First
Amendment. Since these practices do not necessarily enhance the potential for corruption
that individual contributions to candidates do, the Court found that restricting them did
not serve a government interest great enough to warrant a curtailment on free speech and
association.
➔ Contributions are directly to the campaign and can be placed
➔ Independent expenditures or donations to independent spending organizations are not
limited (at least to super Pacs)
➔ Disclosure regimes can after Buckley to determine the lengths that the legislature can go
to compel disclosure (laws often drew the line at as low as $10, non inflation adjustment,
now it is $200)
◆ Thought is that such disclosure opens things up more for oversight to prevent
corruption and also informs the views of others to what the candidate might stand
for
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◆ Some parties have pushed back saying that this violates privacy interests both of
the party and individuals
● Has really only been applied to Socialist Party which was being harrassed
Disclosure of Identity - ​Has been defended as being less restrictive way
McIntyre v. Ohio - ​Lady trying to give out pamphlets some do not have her name while others
did. Perhaps an almost one off, even though the Court speaks in broad terms in the anonymity.
Test under SS. Fairly robust defense of individual free speech
➔ This is considered core free speech - 1A at its core deals with political speech above all
else
➔ Question was does the prohibition of the distribution of anonymous campaign literature
abridge freedom of speech is protected by the First and Fourteenth Amendments?
◆ Answer was yes and that under strict scrutiny for burdening a 1A right, the statute
must have been narrowly tailored to serve the ends sought
➔ Is it the scale, the topic, the fact it does not deal with cash? This case kind of throws a
wrench into the analysis under Valeo
◆ How much is the inquiry about the message vs the messenger?
➔ The three views seem to be strong for anonymity, totally against anonymity, and perhaps
the real consensus, an as applied test that may allow individual circumstances to be taken
into play
Doe v. Reed ​- ​Concerns with disclosure in the Internet era, especially with contentious ballot
initiatives. Real questions do maintain about privacy and how much info actually comes from thi
➔ Challenge the disclosure regime on a ballot initiative on a facial and then as applied basis
◆ Much easier to win on an as applied basis but also requires extensive fact finding,
while a facial challenge can get the law thrown out without much factual inquiry
◆ The facial challenge comes from the fact that this law opens things up to third
parties to actively target the groups that sign the referendum
● This is simply part of political discourse however and not enough for a
facial challenge
➔ The Court emphasizes fraud concerns (extra signatures from parties not really associated
with the referendum, like people from out of state, though there exist criminal
mechanisms against this)
◆ This concern is more for the state
➔ The Court also to the positive aspects of transparency regarding these matters
◆ Integrity of the process might be important, but more importantly there is an
informational interest to outside parties, not as much the state interest
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➔ Anonymity has the important interest that 1A rights will not be chilled by possible threats
of bad disclosure
◆ This can’t be facial, has to be as applied
➔ Court held that disclosure of referendum petitions does not as a general matter violate the
Petition Clause of the First Amendment
◆ Fail an as applied challenge without factual basis that those signing have been
harmed (no real evidence of chilling, though difficult to show this before the fact)
Aggregate Contribution Limits are Unconstitutional - ​The government may not limit the
aggregate amount one person or entity contributes to political candidates or committees during
an election even though it may limit the amount given to a single candidate. Aggregate limits
violate 1A’s protection of political speech because unlike individual contribution limits, they do
not further the government’s interest in preventing quid pro quo corruption or the appearance of
such, and they seriously restrict participation in the democratic process. Spending large sums of
money in connection with election, but not in an effort to control the exercise of a specific
officeholder’s duties, does not give rise to such corruption, nor does the possibility that the
contributor may garner influence over or access to elected officials or political parties
(McCutcheon v. FEC)
Differentiating Free Speech from Politically Untrue Speech - ​Susan B. Anthony​ ​- Attacking
a candidate for supporting abortion, which the canddiate said was false because the attacking
group was using facially incorrect scientific information
➔ There was a state law criminally outlawing politically false speech attacks on political
candidates. False speech is constitutionally protected, as the cost for determining what is
truly a lie might chill too much speech and perhaps the courts are not in the best position
to find true truths
◆ Overrides the interest of the legislature to maintain integrity of election, especially
when the statute does not involve a mens rea requirement. The law is also under
and over inclusive, in that it gets what might be true speech paused when it is
reviewed by a committee, and also may allow prohibited speech as it languished
in the system for determining its falsity
◆ Almost always these kinds of laws are struck down for not being tailored enough
and being too chilling on potentially good information
➔ Court held that pre-enforcement legal challenges have Article III standing when the
petitioners' prospect of injury is imminent. In this case, Susan B. won because if the
injunction of the lower courts was enforced would cause them injury in running their ads
against the politicians
◆ The law was eventually held unconstitutional in its entirety on remand
➔ Deals with core political speech and therefore gets SS, and while there might be an
interest in preventing false speech law will need to be very tailored
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Equalizing Large Expenditures - ​A law increasing contribution limits for a candidate whose
wealthy opponent achieves an advantage by spending personal funds violates the 1A. This is
because although Congress may raise contribution limits for both candidates in situations like
this, penalizing a self-financing candidate who robustly expresses the right to advocate his own
election cannot be justified by leveling opportunities for candidates of different personal wealth
Donations To a Ballot Referendum Committee - ​The government may not limit contributions
to a political committee that supports or opposes a ballot referendum (as opposed to one that
supports a political candidate. Such a limitation on contributions to influence referendum
elections violates the freedoms of speech and association
Limits on Expenditures - ​The government may not limit the amount that a person expends on
his own campaign. Neither may the government limit the amount that a person spends to get a
candidate elected, as long as the expenditures are not contributed directly to the candidate not
coordinated with that of the candidate - the expenditures must be independent of the candidate
and not disguised contributions. Thus, corps, unions, etc, may spend whatever they desire to get
a candidate elected (Citizens United)
Prohibiting Judge Candidates from Announcing their Views (​Minnesota v. White​) - ​A rule
prohibiting candidates for judicial election from announcing their views on disputed legal and
political issues violates the 1A.
➔ This is both a content based restriction and a restriction on core political speech. In either
case, it can be justified only if it is necessary to a compelling state interest.
➔ Two state interests have been put forth in this situation.
◆ It is necessary to maintain an impartial judiciary
◆ It is necessary to preserve the appearance of impartiality.
➔ The Court found that the rule is woefully underinclusive and so is not tailored at all
toward achieving these goals. It allowed candidates to show bias toward political parties
while it prohibits them from stating an opinion about specific political issues. The Court
also found that finding judiges without any preconceptions in favor of particular legal
views is not a compelling interest because it would be both impossible and undesirable to
find such a person
➔ Dissent argued that there should be different standards for judicial elections given that
their candidacies probably should not be as politically driven as regular political elections
Campaign Financing Worries
➔ Regulations on where foreign donations come from - May be held to a higher standard of
review on where and why
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➔ Honest Ads Act - Meant to attack disinformation campaigns
◆ Still questions remain how widespread it is and how to actually combat it
◆ Requires more disclosure on online ads that tries to get close to some of the laws
regarding television and radio ads
➔ Stand by Every Ad - Judging where the money for an ad came from, to discern sources of
funding
◆ Has time limits and how obvious ads must show who they are sponsored by
➔ Another provision makes corps disclose how much money they have given and if the ad
is sponsored by them
➔ Onus has also been foist upon independent social media pages that have their own self
governing rule
◆ Regulates directly political conduct - Does not allow direct ads (though for
Twitter this was already a small portion of their revenue)
◆ Exempts news organizations from the stringent requirements
◆ Disallows misleading tweets about procedures to vote, requirements for
participation, confusion about legal things, and about the date of voting