Final Examination: The Law of Democracy
Professor Pildes
NYU Law School
Spring Term 2001
May 3, 2001
EXAM INSTRUCTIONS
1. This is an open-book examination. There are ___ questions and this exam consists of ___
pages. The questions will be weighted equally in grading.
2. Please write on every other line and every other page in your blue books. Anything I cannot
read with a reasonable effort cannot benefit you. It is your responsibility to write legibly.
3. If you are taking the exam Pass/Fail, please mark that on the outside of each exam book.
4. Thank for your a fun and lively semester.
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QUESTION 1
For many years, Illinois law permitted voters to engage in straight-ticket voting.
Straight-ticket voting permits a voter in the general election to punch a single slot (on a punchcard ballot) or pull a single lever (on a lever-machine voting system) and thereby to vote for all
candidates on the ballot of one particular political party. Studies show that the device was most
frequently used by Democratic Party voters in the Chicago area, a high proportion of whom are
Hispanic and African-American voters. In 1998, the Republican controlled state legislature
passed a law that banned ballots from offering the option of straight-ticket voting. The new law
required that voters vote for each candidate individually. The Republican Governor signed this
law into effect.
You have been asked to provide legal advice concerning possible constitutional
challenges to this law. Can credible constitutional claims be mounted against such a law? If so,
what would those claims be? Who would have legal rights recognzied by the courts to pursue
those claims? If you conclude constitutional challenges are not plausible against this law,
explain why not. Your analysis is to be confined to constitutional claims only and to materials
covered in this course. You are being asked to provide analysis in the role of a lawyer here, so
please be as specific as possible and indicate which cases and lines of authority you are invoking
to support your analysis.
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QUESTION 2
Consider the following statement:
In modern constitutional cases involving the law of democracy, the results often turn
on assumptions about underlying matters of empirical facts. On some occasions, the Supreme
Court has been aggressive about demanding actual empirical validation of the assertions
underlying certain legal claims. Yet at other times, the Court has been willing to accept bare
assertions about purported empirical facts without the Court requiring any actual evidence to
validate such assertions. If these differences merely turned on whether the Court were applying
different standards of review in these different cases, there would be nothing remarkable in this
pattern; cases of strict scrutiny, for example, do require greater empirical proof to support the
justifications offered for state laws than do cases of mere rational-basis review. But the Courts
erratic treatment of empiricalfacts in cases involving democracy, at least since Baker v. Carr
(1962) (Casebook at 122), do not correspond to anything in the formal structure of the law, such
as whether the proper standard of review is strict scrutiny or rational-basis review. Instead, the
Court is simply inconsistent about whether it will demand genuine empirical support on the
effects of electoral laws and how much support it will require.
Please evaluate this descriptive statement about the Courts pattern of decisions since
Baker. Is the statement right? If so, what are the examples that support it? If not, why not?
Please support your analysis with detailed discussion of the cases; the claim being made purports
to describe the actual decisions and hence any response to the claim will have to do likewise. I
will read the answer to this question in conjunction with your other answers, and the best answers
will draw on cases not discussed at length elsewhere in your exam.
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QUESTION 3
A.
In light of California Democratic Party v. Jones (2000) (Supp. at 48), is Timmons v. Twin
Cities Area New Party (1997) (Casebook at 254), decided just three years earlier, still good law?
Please explain in specific detail why Jones might be thought to call Timmons into question and
whether Timmons is analytically reconcilable with Jones. I am less concerned, of course, with
your ultimate conclusion than with the analysis that supports it.
B.
How significant is the tension, if any, between Nixon v. Shrink Missouri Government
PAC, (2000) (Supp. at 182), and First National Bank of Boston v. Bellotti (1978) (Casebook at
633)? What aspects, if any, of Shrink Missouri might be thought to call First National Bank into
question?
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QUESTION 4
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