Archive for the ‘Election Law’ Category

Minnesota Marriage and Political Strategy

posted by William McGeveran

I’m proud that my adopted home state of Minnesota became the 12th state to legalize same-sex marriage this afternoon. I’m also proud of my law school colleague Dale Carpenter, who was central to efforts to pass the measure. And I’m looking forward to some weddings.

There are lots of lessons about politics and gay rights to draw from today’s victory. But I want to emphasize a more general lesson about ballot measures.

Two years ago this month, the Minnesota Legislature, then controlled by a newly-installed Republican majority, voted to hold a statewide referendum on marriage. A proposed amendment to the state constitution on the November 2012 ballot would define marriage as between a man and a woman. Unlike many states, Minnesota does not allow citizen-initiated referenda. But a simple majority of the legislature can put proposed constitutional amendments to the voters without the governor’s assent.

Some insiders have claimed that the rationale for doing so was, at least in part, a raw political one. Advancing a measure important to social conservatives would drive up their turnout, helping preserve Republican legislative control. Surely that must have been at least part of it, along with a substantive desire to thwart same-sex marriage in Minnesota.

Whatever the reason, this turned out to be a political strategy failure of epic proportions. In retrospect, the scale of this miscalculation is stunning. Opponents of the amendment organized, raised over $10 million, and coalesced around a new strategy of personalizing marriage issues. The 31-year-old strategist brought on to manage the campaign against the amendment turned out to be a wunderkind. The amendment failed, 52.5% to 47.5%. A month beforehand, I would have predicted the reverse numbers. Not only that, but in a landslide that surprised everyone I know, voters also rejected a voter ID amendment, turned out a Republican U.S. House member, and flipped both chambers of the state legislature back to the Democrats by significant margins. The amendment drove turnout all right — just not the voters its proponents wanted. (The same appears to have happened in neighboring Wisconsin.)

And today was the final kicker. Two years ago, legislation actually allowing same-sex marriage was a pipe dream. Even at the beginning of 2013, it wasn’t clear if a bill would happen. Once again, I would have bet against it. But the sleeping grass-roots giant awakened by the amendment did not go back to bed. By all accounts, the organization that didn’t even exist two years ago pushed the measure through against considerable odds.

So, one other moral of this story: when it comes to referenda, be careful what you wish for.

  May 14, 2013 at 10:43 pm   Posted in: Election Law, LGBT, Politics   Print This Post   No Comments

How Young Should Voters Be?: 16-Year-Olds’ Entitlement to the Most Basic Civil Right [Part V]

posted by Vivian Hamilton

This is the last in a series of posts on the voting age. In what is becoming a global trend, more than a dozen democratic nations have lowered their voting ages to 16, and others are seriously considering doing so. Two days from now (on Jan. 24), the House of Commons will debate a pending bill, the Voting Age (Comprehensive Reduction) Act 2013, which would set the voting age to 16 across the United Kingdom. Parliamentary assemblies in Scotland, Wales, and the self-governing British Crown Dependencies have already voted to do so. The United States is not among the democracies considering this issue, but it should be. As we extol the virtues of political participation to nascent democracies around the world, we should also remain open to reexamining our own electoral processes — particularly those that result in individuals’ categorical exclusion from political participation. (See my first post.)

It is time we too reexamined the voting age. It was lowered in 1972 from 21 to 18 to bring it in line with the draft age. “Old enough to fight, old enough to vote” remains catchy and has intuitive appeal, but the logic is questionable, as the ability to do one does not necessarily imply the ability — or inability — to do the other. We now know more about voter decision making in general, processes of cognitive development, and adolescent decision making in particular. This knowledge contributes to our ability to make better-informed assessments of what competent voting entails, and the age by which that competence is reliably attained.

Generally, our voter qualification rules aim to ensure would-be voters’ (1) interest in and ongoing connection to the political community; and (2) vote decision-making competence. The young are interested members of the community, so only their presumed lack of competence justifies their exclusion. Informed by empirical studies of voter decision making, I have argued for a cognitive-process-driven conception of vote decision-making competence (see my second post). I explained in my third post why this conception of competence would not operate to disfranchise current voters. A conception of vote decision-making competence instead provides us with a tool we currently lack — a principled standard against which to assess the age or age range by which typical individuals reliably attain the capacities that constitute competence. Upon reaching that age, individuals would, just as they do today, automatically gain the franchise. The state should then bear a heavy burden to disfranchise individuals presumptively entitled to vote but whose competence is nonetheless in question, such as adults with mental impairments. (For a thoughtful critique of individualized assessment tools advocated by some, see this article by Prof. Nina Kohn.)

I argued in my most recent post that 16- and 17-year-olds have attained the cognitive and decision-making capacities required for vote decision-making competence. That alone ought to justify their enfranchisement; their unwarranted exclusion diminishes our democratic legitimacy. (For an elaboration of the above arguments, see my recently-published article, Democratic Inclusion, Cognitive Development, and the Age of Electoral Majority.)

Correcting the arbitrary exclusion of this (competent) cohort of the political community is arguably the most powerful reason for enfranchising 16- and 17-year-olds. Lowering the voting age may also improve our democratic processes in other important ways. It may, for example lead to:

Increased Voter Knowledge: Public ignorance of basic civics, government, and politics is well established. Becoming eligible to vote while still enrolled in high school, however, makes lessons in civics/government more immediately relevant to students’ lives. That immediacy — the real-world application of acquired knowledge — can give students added enthusiasm and incentive to learn, and can provide educators with invaluable teaching tools. Currently, many students will leave high school before becoming eligible to vote, may no longer be in a structured educational setting once they do become eligible, and may wait several years before having the opportunity to vote in a presidential election. Their political disengagement is obviously not inevitable; we have simply lost an opportunity to impart lasting lessons, generate early enthusiasm, and encourage lasting habits (see below) of political engagement and participation.

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  January 22, 2013 at 2:30 pm  Tags: voting qualifications, voting rights, youth vote  Posted in: Civil Rights, Election Law, Uncategorized   Print This Post   6 Comments

Just How Young Should Voters Be? Part IV: Assessing Adolescents’ Electoral Competence

posted by Vivian Hamilton

Citizenship and suffrage go hand in hand. This series of posts, drawing on a recently-published  article,  considers the age-based exclusion of citizens younger than 18. A growing number of countries, as I noted in my first post, have lowered their voting ages to 16 or are considering doing so. The United States should be among those democracies reassessing the electoral exclusion of at least some cohort of its younger citizens.

Electoral standards have long required both (1) ongoing community connection and interest, and (2) vote decision-making competence. Individuals lacking either of these characteristics (or more precisely, the indicia of them reflected in specific voter qualification rules) are commonly disqualified from voting. Thus, voter qualification rules that require citizenship, residency, and law-abidingness presumably ensure that voters meet the first standard — community connection and interest. The young meet that standard. They are members of the political community, with significant interest in and ongoing connections to it. It is only their failure to meet the second standard — vote decision-making competence — that can justify their exclusion.

What Constitutes Vote Decision-Making Competence [Redux]? 

The state excludes citizens younger than 18 from the electorate because they have presumably not yet attained vote decision-making competence, but missing from this justification of their exclusion is a conception of that competence. Some conception of electoral competence — the basic capacities required for voting — is required before the state can credibly assess its attainment, or identify its absence. Age-based line drawing with respect to the development-related attainment of electoral competence is a practical necessity. The state owes its citizens its best effort (some effort) to first ascertain a principled yet pragmatic conception of electoral competence, then to assess young people’s attainment of it, and finally to draw the voting-age line in a manner consistent with that assessment. Otherwise, the state cannot meet its burden of justifying electoral exclusion.

What constitutes vote decision-making competence? Based on empirical studies of voter decision making, incorporating factual knowledge (of civics, politics, etc.) into a standard of electoral competence risks disfranchising much of the current electorate, and it is also unnecessary to ensuring correct vote decisions (those a voter would have made under conditions of full information, given the voter’s subjective values). I thus argued in my second post for a cognitive-process-driven conception of electoral competence. It requires “adultlike” rather than “mature” reasoning processes, because there is no universal state of maturity attained by all, or even most, adults. Requiring “mature” reasoning, like requiring factual knowledge, risks disfranchising many current voters.

I thus propose a conception of electoral competence in which a minimally competent voting decision involves an adultlike application and coordination of various reasoning processes to make a choice that could be justified by a good-enough reason.

The Development-Related Attainment of Vote Decision-Making Competence

Cognitive capacity improves more or less linearly throughout childhood and reaches adultlike levels by midadolescence. By age 15 or 16, adolescents are as able as adults to acquire, retain, and retrieve relevant information and apply to it reasoning processes that lead to justifiable conclusions. Researchers have consistently found the logical reasoning and information-processing abilities of 16-year-olds to be essentially indistinguishable from those of adults. According to developmental psychologist David Moshman, “[n]o theorist or researcher has ever identified a form or level of thinking routine among adults that is rarely seen in adolescence.”

But while they have adultlike abilities to think and reach rational judgments, adolescents’ capacities are more susceptible than are adults’ to being confounded by the real-world contexts in which they make decisions. When they must make decisions quickly or under pressure, or when they are highly emotional or stressed, adolescents’ performance suffers. In contexts in which adolescents are likely to make poor decisions — especially when their decisions will have negative externalities — the state properly constrains their decision-making liberty.

[For an elaboration of the context-specific nature of adolescent decision making, see here. For a discussion of neurologically-based models that have the potential to explain adolescents' poor decision making despite their mature cognitive abilities, as well as other aspects of adolescent psychology and behavior, see here.]

Elections are a decision-making domain in which adolescents’ cognitive-processing abilities would almost certainly remain uncompromised. Elections unfold over a period of time, giving voters the opportunity to deliberate and evaluate options without undue pressure. Many sources of information are readily available (televised debates, party affiliations, etc.), which serve as scaffolding or heuristics to help votes evaluate their choices. And voting itself is done anonymously and in private, which diminishes the concern that adolescents’ ultimate choices will be unduly pressured or dictated by their peers or others. (Ken A., in a comment to my previous post, mentioned the potentially undue influence of parents, but the intergenerational transfer of party affiliation seems to be a well-established fact of political life.)

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  January 14, 2013 at 2:17 pm  Tags: voting age, voting qualifications, voting rights, youth vote  Posted in: Civil Rights, Election Law, Uncategorized   Print This Post   One Comment

Just How Young Should Voters Be? Part III: Why We Need a Conception of Electoral Competence, and Its Implications for Adults with Cognitive Impairments

posted by Vivian Hamilton

Professor Joey Fishkin raised several important questions in his comment to my previous post. I’d initially planned to set out a pretty streamlined version of my argument for lowering the voting age, but I think his questions merit a bit of a detour/elaboration.

Do We Really Want to Reintroduce Notions of Electoral Competence? Fishkin suggests that introducing a conception of electoral competence is potentially fraught. And he’s right–political elite have historically, and notoriously, invoked the supposed incompetence of various groups to justify their categorical disfranchisement. But competence as a basic criterion for voting has been a constant. Indeed, some notion of it is what justifies voting-age requirements. Only young people’s want of the relevant competence (however that competence is defined/conceptualized) can render legitimate their electoral exclusion.

There can be little dispute that newborns lack the relevant competence, or that individuals typically acquire it at some point over the course of their development. Development and age predictably correlate. There is thus a temporal element to the attainment of electoral competence, making age arguably the most reasonable proxy for it.

Competence-based arguments did not drive the nation to lower the voting age from 21 to 18; Congress’s lowering of the draft age did (see what is probably the most comprehensive history of the passage of the 26th Am., lowering the voting age: Wendell Cultice, Youth’s Battle for the Ballot). Is age 18 the most reliable indicator of electoral competence that we can identify today? To decide, I think we need to answer two questions: First, what is the most appropriate conception of electoral decision-making competence (discussed in my last post)? And second, is it possible to identify an age or age range by which that competence has reliably developed (next post)?

Does the Conception of Electoral Competence I Suggest Risk Disfranchising Segments of the Adult Population? Fishkin suggests that it could, but I don’t think so. I don’t propose that individual would-be voters would have to demonstrate that they meet this standard in order to qualify to vote. I concede the practicality of age as proxy for electoral competence. I advance a conception of competence to guide a reevaluation of our current age-proxy and, if appropriate, establish a better, more empirically-grounded and principled one. We would assess the age or age range by which typical individuals reliably develop electoral decision-making competence. Individuals who attain the age of presumptive competence (just as they do today) would automatically gain the franchise.

The standard for electoral competence I argue for requires certain thinking/reasoning capacities (these attend normal individual development, which may be improved by, but does not require, specific levels or types of learning). Some individuals may meet this standard prior to attaining the presumptive age of competence; some will reach the presumptive age of competence (and gain the franchise) without having attained the typical capacities  Such slippage is the nature of proxies.

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  January 9, 2013 at 10:16 am  Tags: voting and disability, voting qualifications, voting rights, youth vote  Posted in: Civil Rights, Election Law, Uncategorized   Print This Post   6 Comments

Just How Youthful Should Voters Be? Part II: Defining Electoral Decision-Making Competence

posted by Vivian Hamilton

This is the second of three (or so) posts on the youth vote and the voting age. In a post last week, I suggested that the United States should join other democracies reevaluating their ages of electoral majority.

In this post, I argue that deciding whether a group of individuals is competent to vote first requires a conception of what constitutes electoral competence, and I offer such a conception. My next post will examine whether such competence is reliably achieved earlier than age 18.

Basic Voting Criteria: Connection/Interest and Competence. Basic voting criteria have remained essentially unchanged across the centuries and generally require for electoral inclusion  (1) a significant and ongoing interest in and connection to the community; and (2) vote decision-making competence. (Few democracy theorists, though, have sought to justify these intuitively-correct criteria. I attempt to do so here, pp. 1484-90.) But while the basic criteria have remained unchanged, notions of reliable indicia of them–reflected in specific voter qualification rules–have changed significantly.

Historically, property ownership was a voter qualification rule believed necessary to ensure a potential voter’s ongoing community connection and interest. Today, citizenship, residence, and law-abidingness qualifications all seek to ensure the same criteria (ongoing connection and interest). And historically, the intellectual independence required for electoral decision-making competence was deemed impossible in the absence of economic independence, since dependent voters might be unwilling to vote in a way that displeased those to whom they were economically beholden. Today, different voter qualification rules aim to ensure that voters possess electoral decision-making competence. State rules allow, for example, the disfranchisement of adults deemed mentally incompetent. The primary voter qualification rule aimed at ensuring that voters have developed the requisite competence, however, is the voting age.

Indicia of Competence: Political/Civics Knowledge? Rousseau believed that a well-informed citizenry was necessary to determine and implement the public good, and many modern theorists agree that informed and watchful citizens help ensure a responsive, accountable government. Yet the typical citizen, it is safe to say, is far removed from the ideal citizen of classic democratic theory.

Studies consistently find that public ignorance is widespread and extends to knowledge of basic civics and government. Mark Blumenthal, senior polling editor of the Huffington Post and founder of Pollster.com glumly wrote, “[one] can almost never underestimate the level of information about politics and government possessed by the voters who typically decide the outcome of elections.”

Incorporating even basic levels of civics or political knowledge into a conception of electoral competence theoretically justifies voter qualification rules that would operate to disfranchise a significant proportion of the current electorate. Moreover, rates of disfranchisement would be unequally distributed across the population based on differences in knowledge among various groups that have held steady over time: more women would be disfranchised than men; more African Americans than whites; more low-income earners than high-income earners; and more people under 30 than those 65 and older. Formal requirements aimed at ensuring well-informed voting would likely result in a better-informed electorate, but also a less representative and democratic one.

The Ill-Informed–Yet Competent-Enough–Voter. In lieu of incurring the costs of educating themselves, voters generally rely on more readily available information shortcuts (or heuristics), which substitute for more complete information. These can include party affiliation, group endorsements, or person stereotypes such as gender, race, or age. Heuristics allow voters (indeed, decision makers in innumerable contexts) to make decisions reasonably consistent with their preferences while expending relatively little effort. Empirical political scientists Richard Lau and David Redlawsk have extensively researched voter decision making and the effectiveness of heuristic use and found that their “limited information decision strategies not only may perform as well as, but in many instances may perform better than, traditional rational . . . decision strategies.” (For a detailed explanation of their findings, see the previous link at pp. 212-26; See also here, reporting studies finding that greater amounts of preexisting knowledge can in some instances hinder rational analysis of new facts.)

Lau and Redlawsk have found that the typical voter generally reaches a rational and “correct” voting decision (defined as one that is the same as the choice that the voter would have made under conditions of full information, given the voter’s subjective beliefs and values) by acquiring and processing smaller, readily available bits of meaningful information that function as serviceable substitutes for full information. Thus, not only does incorporating factual knowledge into a normative standard of electoral competence risk disfranchising much of the current electorate; it is also unnecessary to ensure generally correct vote decisions.

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  January 7, 2013 at 7:23 am  Tags: voting qualifications, voting rights, youth vote  Posted in: Civil Rights, Election Law, Uncategorized   Print This Post   2 Comments

The Youth Vote Matters. But Just How Young Should Voters Be? [Part I]

posted by Vivian Hamilton

Happy New Year, and thanks to Solangel Maldonado for inviting me to participate.

One of the most consequential events of 2012 was the presidential election, and critical to it was the youth vote. Young voters aged 18 to 29 turned out at virtually the same rate as they had in 2008, despite predictions that their enthusiastic participation in that historic election would be a one-time anomaly. On November 6, a lopsided 60 percent of the youth vote went to the President, while 36 percent went to Mitt Romney. Had Romney managed to garner 50 percent of the youth vote in four swing states (Florida, Ohio, Pennsylvania, and Virginia), he would have won those states’ electoral votes, and the presidency. The political implications of the youth vote for future elections are thus significant. Young voters have established themselves as an important voting bloc, particularly in swing states.

Across the United States, the voting age to participate in general elections is 18, with age serving as a proxy for the attainment of electoral decision-making competence. Whether young voters will continue to lean left in future election cycles is a significant question. A more significant question, though, is whether the current voting age is the best available proxy for electoral competence. Indeed, the latter question cuts to the core of democratic government. I explore it in a recent article and will highlight aspects of this critical, yet largely ignored, question in upcoming posts.

More than a dozen nations have recently lowered local, state, or national voting ages to 16, aiming primarily to increase youths’ political engagement and counter the disproportionate political influence of older citizens. In Europe, these include Austria, Scotland, Wales, the self-governing British Crown Dependencies, nearly half of all German states, and several Swiss states (Scotland and Wales are awaiting from Westminster authority to effectuate the measure but have implemented it for local elections). Norway instituted a pilot project in 2011 allowing 16 year-olds to vote in local elections. Latin American countries that allow 16 year-olds to vote include Brazil, the Dominican Republic, Ecuador, Nicaragua, and–as of October 2012–Argentina. British and Canadian Parliaments have voted on bills proposing to lower national voting ages (though these have so far failed to pass), and former Prime Ministers Tony Blair and Gordon Brown both announced while in office their support for a lower voting age.

That the global trend is to extend, or consider extending, the franchise to 16- and 17-year-olds does not mean that the United States should automatically do the same, nor that doing so necessarily makes for better democracy. But for the United States, which holds itself out as a beacon of democratic participation, not to be among the world’s democracies at least evaluating the electoral inclusion of some cohort of its younger citizens demonstrates a complacency with respect to exclusion that is itself a democratic deficit.

In upcoming posts, I will explore ideals of the citizen-voter from classic democratic theory, argue for a conception of electoral competence, and examine research from several disciplines within the developmental sciences exploring the connection between age range and the attainment of certain cognitive competencies. I conclude that age 18 may have been the best available proxy for electoral competence when the nation adopted it as the voting age in 1971, but developments since then enable us to identify a better proxy.

That younger voters have demonstrated a proclivity to lean left may make some policy makers reluctant to even entertain what ought to be a question of democratic legitimacy, not politics. That may ultimately be political reality, but, as future posts will aim to show, it would also be a real shame.

  January 3, 2013 at 1:49 pm  Tags: voting age, voting rights, youth vote  Posted in: Civil Rights, Election Law, Uncategorized   Print This Post   26 Comments

Upside-Down Majority in the House of Representatives

posted by Gerard Magliocca

There is an interesting piece in The New Yorker this week explaining that the Republicans retained their majority in the House this year even though Democrats got around 1 million more votes in House races overall.  This has happened a few times before (in 1996, for instance) and could be explained by a few factors.  One is gerrymandering.  Another is the fact that there are just more lopsided Democratic districts due to geography.

One explanation that is not mentioned in the article, though, is the fact that the House is malapportioned.  (I posted about this two years ago.)  The Constitution’s requirement that each state get at least one House member creates a distortion, because if we used a strict proportional formula some states (say, Vermont or Wyoming) really deserve less than 1.  Likewise, the fact that each state must have a round number of members is artificial.

For example, California has 66 times more people than Wyoming. (37.25 million vs. 563,000).  But California has only 53 times as many House members (53 vs. 1).  There is nothing that can be done about this, because the courts have held that interstate malapportionment is not subject to the rule of Reynolds v. Sims.  How much did this contribute to the 2012 result?  Get Nate Silver on the job!

  November 29, 2012 at 10:17 am   Posted in: Election Law   Print This Post   5 Comments

William & Mary Law Review, Issue 54:1 (October 2012)

posted by William & Mary Law Review

Articles

Justin Pidot, Jurisdictional Procedure

Justin Levitt, Resolving Election Error: The Dynamic Assessment of Materiality

Helen Norton, The Equal Protection Implications of Government’s Hateful Speech

Gideon Parchomovsky & Peter Siegelman, Cities, Property, and Positive Externalities

Notes

Vladislava Soshkina, Beyond Morrison: The Effect of the “Presumption Against Extraterritoriality” and the Transactional Test on Foreign Tender Offers

Jarred O. Taylor III, Information Wants to Be Free (Of Sanctions): Why the President Cannot Prohibit Foreign Access to Social Media Under U.S. Export Regulations

  November 21, 2012 at 10:57 am   Posted in: Constitutional Law, Election Law, Law Rev (Wm & Mary)   Print This Post   No Comments

Stanford Law Review Online: The Hunt for Noncitizen Voters

posted by Stanford Law Review

The Stanford Law Review Online has just published an Essay by Fatma Marouf entitled The Hunt for Noncitizen Voters. Professor Marouf writes that recent efforts by several states to purge noncitizens from their voter rolls may prevent many more citizens than noncitizens from voting:

Over the past year, states have shown increasing angst about noncitizens registering to vote. Three states—Tennessee, Kansas, and Alabama—have passed new laws requiring documentary proof of U.S. citizenship in order to register. Arizona was the first state to pass such a requirement, but the Ninth Circuit struck it down in April 2012, finding it incompatible with the National Voter Registration Act. Two other states—Florida and Colorado—have waged aggressive campaigns in recent months to purge noncitizens from voter registration lists. These efforts to weed out noncitizen voters follow on the heels of legislation targeting undocumented immigrants in a number of states. Yet citizens may be more harmed by the new laws than noncitizens, especially since the number of noncitizens registering to vote has turned out to be quite small. Wrongfully targeting naturalized or minority citizens in the search for noncitizens could also have negative ramifications for society as a whole, reinforcing unconscious bias about who is a “real” American and creating subclasses of citizens who must overcome additional hurdles to exercise the right to vote.

She concludes:

Some of the laws require voters to show government-issued photo IDs, which 11% of U.S. citizens do not have. Some have placed new burdens on voter registration drives, through which African-American and Hispanic voters are twice as likely to register as Whites. Others restrict early voting, specifically eliminating Sunday voting, which African-Americans and Hispanics also utilize more often than Whites. In two states, new laws rolled back reforms that had restored voting rights to citizens with felony convictions, who are disproportionately African-American. Each of these laws is a stepping-stone on the path to subsidiary citizenship. Rather than creating new obstacles to democratic participation, we should focus our energy on ensuring that all eligible citizens are able to exercise the fundamental right to vote.

Read the full article, The Hunt for Noncitizen Voters at the Stanford Law Review Online.

  October 31, 2012 at 9:30 am  Tags: Civil Rights, Constitutional Law, Election law, Immigration, Politics, voter rights  Posted in: Civil Rights, Constitutional Law, Election Law, Immigration, Law Rev (Stanford), Politics   Print This Post   No Comments

Constitutional Implications of “True the Vote”

posted by Frank Pasquale

The New York Times posted an editorial on voting harassment on Friday, describing these troubling scenarios:

In an ostensible hunt for voter fraud, a Tea Party group, True the Vote, descends on a largely minority precinct and combs the registration records for the slightest misspelling or address error. It uses this information to challenge voters at the polls, and though almost every challenge is baseless, the arguments and delays frustrate those in line and reduce turnout. . . .

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  September 23, 2012 at 5:41 pm   Posted in: Civil Rights, Constitutional Law, Election Law   Print This Post   43 Comments

The Partisan Foundations of Judicial Campaign Finance

posted by Michael Kang

The Center for American Progress has just issued a report on judicial campaign finance that documents the increasing costs of campaigning in judicial elections and raises alarm that “[i]nstead of serving as a last resort for Americans seeking justice, judges are bending the law to satisfy the concerns of their corporate donors.”  Jeffrey Toobin followed up in the New Yorker that “the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law. . . . [b]ut it’s clear now that in many states you should worry—a lot.”

My colleague Joanna Shepherd and I study judicial campaign finance and argue that what is regularly missed in this simple narrative is the crucial role of the major parties.  In our empirical work, we find a very real relationship between contributions to judges and judicial decisions favorable to contributors, but the intuitive narrative of direct exchanges of money for decisions between individual contributors and judges is too simplistic to describe the larger realities of modern judicial elections.  The Republican and Democratic Parties broker connections between contributors and their candidates, and we argue that parties, not elections, seem to be the key to money’s influence on judges.

In a new paper still in progress, The Partisan Foundations of Judicial Campaign Finance, we identify broad left- and right-leaning political coalitions, allied with the Democratic and Republican Parties, whose collective contributions exercise systematic influence across the range of decisions by judges who receive their money.  The parties appear to coordinate judicial campaign finance under partisan elections where their investment and involvement is greatest, and what is more, we find that the robust relationship between money and judicial decisions largely disappeared in our data for judges elected in nonpartisan elections where parties are relatively less involved.

In addition, we go on to find a striking partisan asymmetry between Republicans and Democrats in judicial campaign finance.  Money from conservative groups in the Republican coalition, as well as from the party itself, is associated with more conservative judicial decisionmaking by Republican judges, even controlling for individual ideology.  However, decisionmaking by Republican judges is not responsive to money from liberal sources.  Decisionmaking by Democratic judges, by contrast, is influenced by campaign support from both liberal and conservative sources and thus cross pressured in opposite directions.  The result is that judicial campaign finance reinforces party cohesion for Republicans while undermining it for Democrats.  Campaign finance thus predicts judicial decisionmaking by judges from both parties in some sense, but is much more successful in serving partisan ends for Republicans, netting out in a conservative direction between the two parties.

  August 15, 2012 at 3:34 pm   Posted in: Constitutional Law, Corruption, Courts, Economic Analysis of Law, Election Law, Politics   Print This Post   One Comment

Bad Idea, in Voting

posted by Danielle Citron

I’ve been in my book writing fox hole, so much so that when the storm hit Maryland and D.C. and I did not lose power, I had no idea that nearly half of my state and our neighboring ones had none.  But enough about hiding from the world (and the Internet), there are alarming stories about voting worth sharing now with elections coming up, the only time the public seems to sniffle at the issue.  Internet voting.  One might say, in your dreams, pal, never going to happen.  But in truth it is happening, with calls for more.  Nineteen states offer some form of online voting, mostly for soldiers living overseas.  The Military and Overseas Voter Empowerment Act requires states in most cases to get ballots to military and overseas voters well in advance of regularly scheduled federal elections, which has led states to adopt voting via e-mail and online for soldiers.  (Other states like Maryland allow voters to download ballots online and mail them).  Because these experiments have “worked,” more calls for voting online have been forthcoming on the grounds that people might then actually vote.  It’s my understanding from voting activists that election boards are agitating for online voting, and it is a very bad idea.  To state the utterly obvious, all things online are insecure — the infiltration of Pentagon and countless companies, including financial ones, should instill fear about the sophistication of bad actors looking to steal state secrets, trade secrets, credit card numbers, SSNs, you name it.  And online elections–what a target (think about all of the people who would bother–in a word, lots).  Stuffing ballot boxes in a handful of precincts is quaint as compared to the possibilities of malware, distributed denial of service attacks, and the like in a state and federal election.  It is mind blowing, really.

Scott Wolchok, Eric Wustrow, Dawn Isabel, and J. Alex Halderman of the University of Michigan recently released a study on the ease with which they hacked a pilot project on Internet voting run by Washington D.C.  The authors explain that within 48 hours of the system going live, they gained near-complete control of the election server, successfully changed every vote and revealed almost every secret ballot. Two business days later, election officials detected the intrusion, and probably only because the authors deliberately left a prominent clue.  Some respond to these sorts of concerns with “we bank online and it is safe, so we can vote online, if we just work hard enough at it.”  As the authors explain, banking and voting involve very different activities with very different needs for secrecy as between client/voter and bank/voting precinct.  As the authors explain:

While Internet-based financial applications, such as online banking, share some of the threats faced by Internet voting, there is a fundamental difference in ability to deal with compromises after they have occurred. In the case of online banking, transaction records, statements, and multiple logs allow customers to detect specific fraudulent transactions and in many cases allow the bank to reverse them. Internet voting systems cannot keep such fine-grained transaction logs without violating ballot secrecy for voters. Even with these protections in place, banks suffer a significant amount of online fraud but write it off as part of the cost of doing business; fraudulent election results cannot be so easily excused.

The National Institute of Standards and Technology agrees.  Chief among NIST’s concerns are malware and our lack of an infrastructure for secure electronic voter authentication.  Amazingly, countries like Estonia and Switzerland have adopted Internet voting for national elections.

  July 10, 2012 at 4:19 pm   Posted in: Anonymity, Election Law, Privacy, Technology   Print This Post   6 Comments

Swindling/Selling, Bribing/Contributing, Extorting/Taxing

posted by Peter Swire

At the recent Security and Human Behavior conference, I got into a conversation that highlighted perhaps my favorite legal book ever, Arthur Leff’s “Swindling and Selling.”  Although it is out of print, one measure of its wonderfulness is that used copies sell now for $125.  Then, in my class this week on The Ethics of Washington Lawyering (yes, it’s a fun title), I realized that a key insight from Leff’s book applies to two other areas – what is allowed in campaign finance and what counts as extortion in political office.

Swindling/selling.  The insight I always remember from Leff is to look at the definition of swindling: “Alice sells something to Bob that Bob thinks has value.”  Here is the definition of selling: “Alice sells something to Bob that Bob thinks has value.”  See?  The exchange is identical – Bob hands Alice money.  The difference is sociological (what society values) and economic (can Bob resell the item).  But the structure of the transaction is the same.

Bribing/contributing.  So here is a bribe: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.”  Here is a campaign contribution: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.”  Again, the structure of the transaction is identical.  There are two likely differences: (1) to prove the bribe, the prosecutor has to show that Bob did the later action because of the $10,000; and (2) Alice is probably careful enough to give the money to Bob’s campaign, and not to him personally.

 Extorting/taxing.  Here is the classic political extortion: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.”  Here is how it works when a federal or state government hires someone: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.”  The structure of the transaction is the same – Bob keeps 90% of the salary and gives 10% to Alice.  The difference here?  Like the previous example, the existence of bureaucracy turns the bad thing (bribing or extorting) into the acceptable thing (contributing/taxing).  In the modern government, Alice hires Bob, and Bob sends the payment to the IRS.  The 10% does not go to Alice’s personal use, but the payment on Bob’s side may feel much the same.

For each of these, drawing the legal distinction will be really hard because the structure of the transaction is identical for the lawful thing (selling, contributing, taxing) and for the criminal thing (swindling, bribing, extorting).  Skeptics can see every transaction as the latter, and there is no objective way to prove that the transaction is actually legitimate.

I am wondering, did people know this already?  Are there citations to previous works that explain all of this?  Or, perhaps, is this a simple framework for describing things that sheds some light and merits further discussion?

  June 16, 2012 at 9:22 pm   Posted in: Administrative Law, Consumer Protection Law, Criminal Law, Economic Analysis of Law, Election Law, Legal Theory   Print This Post   15 Comments

Viewpoint, Voting, and Structuring the Electorate

posted by Janai S. Nelson

I am delighted to join the blogging community of Concurring Opinions for the month of April.  Thanks to Solangel Maldonado and Daniel Solove for their gracious invitation.

Denying voting rights to citizens with felony convictions has gotten a bad rap. The reason it’s not worse is because that rap is based on only half the story.  Anyone familiar with the complexion of our prison population knows that felon disfranchisement laws extend striking racial disparities to the electoral arena.  Less known, however, is that citizens with felony convictions are excluded from the electorate, in part, because of perceptions about how this demographic might vote or otherwise affect the marketplace of ideas.  In other words, citizens with felony convictions are denied the right to vote because of their suspected viewpoint.

Picking up on this point earlier this year, Michael Dorf highlighted a dispute between Republican presidential candidates Mitt Romney and Rick Santorum about which of them held the most conservative position concerning the voting rights of citizens convicted of a felony.  Inventing a criminal persona named Snake, Dorf queried what issues might provoke such a person to vote: Lower protections for private property or public safety? Redistribution of public resources from law enforcement to education, health, or recreation?  Elimination of certain criminal laws?  I can fathom many other lawful motivations for voting.  However, as Dorf points out (and decidedly rejects), the underlying objection to allowing citizens with felony convictions to vote is based on an assumption that, if they could vote, they would express self-serving and illegitimate interests. In other words, the viewpoint that felons would express through voting has no place in the electoral process.

I have always assumed that my viewpoint was precisely what I and other voters are supposed to express at the ballot box.  Whether that viewpoint is shared, accepted, condoned or vehemently disdained and abhorred by others is irrelevant to the right to vote.  Not so for citizens with felony convictions.  This group of citizens is presumed to possess deviant views that justify their exclusion from the electorate and the denial of a fundamental right. Read the rest of this post »

  April 3, 2012 at 9:37 am  Tags: Constitutional Law, Election law, equal protection, felon disfranchisement, First Amendment, prisoner's rights, right to vote, voting qualifications, voting rights  Posted in: Administrative Law, Civil Rights, Constitutional Law, Courts, Culture, Current Events, Election Law, Law and Humanities, Race, Uncategorized   Print This Post   14 Comments

Minimum Turnout Requirements

posted by Gerard Magliocca

I am now up to February 1868 in the Bingham biography (the impeachment of Andrew Johnson), and writing this book is definitely the intellectual equivalent of climbing a mountain.  With the Reconstruction section nearly done, I thought that I would make an observation about one quirky aspect of that period.

The Second Reconstruction Act was, as far as I know, the only time in federal law (or maybe in American law) where an election needed a certain level of turnout to be legitimate. Congress provided that the elections for the state constitutional conventions (and elections on the constitutions proposed by those conventions) in the ten ex-Confederate States that had not ratified the Fourteenth Amendment only counted if half of registered voters voted.  When this threshold proved hard to meet, Congress eliminated this requirement in the Fourth Reconstruction Act one year later.

Many foreign elections have a minimum turnout requirement to ensure that an adequate portion of the electorate backs the government or policy at issue.  I wonder if states should take a look at this mandate for initiatives or referenda.

  March 19, 2012 at 7:14 pm   Posted in: Election Law   Print This Post   No Comments

One Person, One Vote in Mississippi: Maybe Next Year . . .

posted by Michael Pitts

The decennial redistricting cycle always creates some interesting litigation. While it is still quite early in the cycle, one of the more interesting opinions issued thus far is Mississippi NAACP v. Barbour. Barbour involves the equal protection principle of one person, one vote that requires state legislative districts to have roughly equal population numbers.

Mercifully, the basic facts are fairly simple. Mississippi last redrew its district lines in 2002. In February of this year, the State received census data showing that its current state legislative districts clearly violate one person, one vote. Despite having this data, the Mississippi legislature adjourned without revising the legislative district lines. Mississippi has legislative elections scheduled for this year (a primary in August followed by a general election in November). For this reason, the Barbour plaintiffs rather sensibly went to the district court and asked for relief that would require the elections this year to be held from districts that complied with one person, one vote.

If you had presented me with this situation in a law school hypothetical, I would have said the answer would seem to be fairly clear: on these facts, Mississippi needs to have a redistricting plan that complies with one person, one vote before it holds elections this year. It should come as no surprise, then, that three federal judges think the exact opposite and have decided to allow Mississippi’s legislative elections to go forward based on a plan that everyone agrees violates one person, one vote. Read the rest of this post »

  June 6, 2011 at 9:48 am  Tags: Constitutional Law  Posted in: Election Law   Print This Post   11 Comments

The Obama DOJ and the Voting Rights Act

posted by Michael Pitts

Thanks to Gerard for the introduction and to all the folks at Concurring Opinions for providing me with this blogging outlet.

As Gerard mentioned, I write in the area of the law of democracy and the next 12-18 months is a busy season for those in this area—sort of the law of democracy equivalent of early April for tax preparers. The reason for all the commotion is the phenomenon of redistricting that commences soon after release of the decennial census statistics.

One of the things to keep an eye on during this redistricting cycle will be how the Department of Justice under the Obama Administration enforces the Voting Rights Act. Because Section 5 of the Voting Rights Act requires a significant number of state and local governments to get approval for their redistricting plans from the federal government, the Obama Administration will have a lot of influence over how the Voting Rights Act gets enforced this time around.

In some ways, the Obama Administration has a tough job ahead if it. From a legal perspective, the Obama Administration has to be careful about what the federal courts might do with the Voting Rights Act if the Obama administration becomes too active for a conservative court. Indeed, in an opinion issued a couple of years ago, the Supreme Court telegraphed its skepticism about the constitutionality of the portions of the Act that allow for federal oversight over state and local election rules. From a political perspective, the Obama Administration might be under pressure to use every tool available to help its natural political allies—the civil rights groups and minority voters—achieve the goal of creating more districts that give minority voters control over who gets elected.

Read the rest of this post »

  June 1, 2011 at 9:54 am  Tags: Civil Rights, Constitutional Law  Posted in: Civil Rights, Election Law, Politics   Print This Post   2 Comments

Hellman on Confusing Restrictions with Incentives in McComish v. Bennett

posted by Danielle Citron

My colleague Deborah Hellman has kindly offered to share her thoughts on McComish v. Bennett.  Our CoOp readers will remember our all-star symposium on Hellman’s important work Money Talks But It Isn’t Speech.  Here is her post:

Imagine you are an advisor to Presidential candidate Sarah Palin in the next election.  As you think about what she should say and when, you will no doubt consider the Tina Fey factor.  How will Fey respond?  Will a Fey sketch of Palin be too damaging?  Fey’s impersonation of Palin could even cause Palin to self-censor or even speak less.  Can we therefore conclude that Fey restricts Palin’s speech?  Of course Fey herself has a right to speak, so Palin has no grounds to complain but still the claim that Fey is restricting Palin’s speech is patently ridiculous.   But that is essentially the argument made by the Petitioners in McComish v. Bennett, the Arizona matching funds case argued yesterday in the Supreme Court.  The Petitioners argued that the Arizona law at issue unconstitutionally restricts the speech of candidates who do not avail themselves of public financing because, for example, “Arizona Taxpayers (one of the PACs challenging the law) chose not to speak in opposition to a publicly financed candidate to avoid triggering matching funds to that candidate.” Surely it isn’t enough that the law creates incentives for the petitioners not to spend money and speak, otherwise there would be a good argument for the claim that Fey’s comedy restricts Palin’s speech, and there is not!

Consider another example: suppose that the Arizona legislature, alarmed by high rates of childhood obesity in the state, adopts the following policy.  If snack foods are advertised during children’s programming, money is allocated to run ads for comparable amounts of time touting the delicious taste of fruit.  Could the snack food makers complain that their speech is restricted because this policy causes them to make strategic decisions about whether to advertise during children’s programs?

Of course, commercial speech is not political speech, but that’s beside the point.  The speech of snack food makers isn’t abridged by the fact that their decision about whether to speak is influenced by other speech.

The mistake of the petitioners in McComish is to focus on the effect that the law produces (chilling their speech) rather than the means by which this effect is produced.  Chilling speech through sanctions is problematic; chilling speech by more speech is not. Read the rest of this post »

  March 29, 2011 at 9:00 am   Posted in: Election Law, First Amendment, Symposium (Money Talks)   Print This Post   12 Comments

Some Thoughts on DC Corruption

posted by Marvin Ammori

I’d like to thank the good folks at Concurring Opinions for inviting me to guest blog. The CoOp team has always been tremendously generous to me over the years–advising me on the teaching market (Dan, Frank), reading and commenting on draft  law review articles (Dan), and reposting some of my thoughts (Danielle).  And they’ve been kind enough to let me guest-blog for two months, as I was working through a law review article (grandly titled First Amendment Architecture–someone please publish it).

I tend to write about free speech and technology–like policies to ensure net neutrality, Internet access for all, or online innovation without permission. I am interested in media and the Internet because they are among our dominant means of speech, and speech is a basic input into all the decisions of our democracy. To the extent we design our speech systems more or less democratically, that affects all our policy decisions. I spent a few years in DC, working on media reform and network neutrality, among other issues.

I will write about technology soon. Today: corruption.

Read the rest of this post »

  March 16, 2011 at 10:38 pm   Posted in: Corruption, Election Law, Uncategorized   Print This Post   10 Comments

The Partisan Price of Judicial Elections

posted by Michael Kang

A major study of judicial elections released today reports that campaign spending in judicial elections doubled over the past decade and that “judicial elections are increasingly focusing not on competence and fairness but on promising results in the courtroom after election day.” The report was authored by the Justice at Stake Campaign, the Brennan Center for Justice, and the National Institute on Money in State Politics, with a foreword by Sandra Day O’Connor. It has already received extensive press coverage as the fall cycle begins to heat up.

My forthcoming article in N.Y.U. Law Review with my co-author Joanna Shepherd offers some important insights regarding the influence of campaign money on judicial decisions. Using a dataset of virtually every state supreme court decision in all fifty states over a four-year period, we find that elected judges are more likely to decide in favor of business interests as the amount of campaign contributions that they have received from those interests increases. In other words, every dollar of direct contributions from business groups is associated with a statistically significant increase in the probability that the judges will vote for business litigants. Although Joanna and I study the period preceding this decade, from 1996 through 1998, our finding helps substantiate the concerns articulated by the Brennan Center report released today.

What is more, we find that this association between dollars and decisions disappears when we look at only retiring judges in their final term. Those judges, unburdened by campaign considerations for the future, seem not to decide in favor of their business contributors’ interests to the same degree. Although we offer only very tentative conclusions in this direction, this latter finding suggests that the association between dollars and decisions is the result of more than a mere selection effect in the election of judges, but instead hints at a potential biasing of incumbent judges by the expected need for campaign money in the future.

However, Joanna and I also find that holding nonpartisan elections, instead of partisan ones, seems to make a significant difference when it comes to the relationship between campaign contributions and later decisions. At least over our period of study, we find a statistically significant relationship between campaign contributions and judicial decisions in favor of contributors’ interests only for judges elected in partisan elections, not nonpartisan ones. Numerous commentators have suggested that nonpartisan judicial elections are partisan in all but name, but our findings point to an important role of political parties in connecting campaign contributions to judicial decisions under partisan elections that appears not the same under nonpartisan ones. Of course, there are many reasons to choose between nonpartisan and partisan elections on other grounds, but when it comes to an uncomfortably tight relationship between campaign money and judicial decisions, our article concludes that nonpartisan elections likely present fewer concerns.

  August 16, 2010 at 3:23 pm   Posted in: Constitutional Law, Current Events, Economic Analysis of Law, Election Law, Empirical Analysis of Law, First Amendment, Law and Inequality, Politics   Print This Post   No Comments

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