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Election Law
University of Illinois School of Law
Mool, Deanna S.

Election Law


Fall 2012

1. Design of Democratic Institutions

· Conventional understanding of democracy privileges private preferences and collective deliberation as forming basis for state institutions

· But, perhaps, unrealistic as democratic politics exists as part of a self-informing system where pre-existing institutional arrangements constrain range of possible results

· Pre-existing institutions are borne of some combination of prior democratic choices and inertia

· But those in power will often try to use their power to continue their control

· Courts must strike a balance in their role as steward of democracy

· Very hard for courts to overturn outcomes from pre-existing democratic selection processes

· But courts may be only branch of government capable of creating certain types of political change that would otherwise fall to those who are already in power and are not otherwise unaccountable

2. Right to Participate

· Constitutional Text

· Most of the Constitutional provisions dealing with the right to vote are phrased in the negative

§ Fifteenth Amendment: Race

§ Nineteenth Amendment: Sex

§ Twenty-Fourth Amendment: Poll taxes;

§ Twenty-Sixth Amendment: people age 18 years or older

· Most litigation has focused on first section of Fourteenth Amendment (privileges and immunities, due process, and equal protection), NOT second section (equal apportionment)

· Surprisingly, some states have granted franchise only to take it away à see, e.g., NJ that gave women the vote in 1776 only to take it away by 1807

Minor v. Happersett, 88 US 162 (1875)

§ Facts: Minor, a female Missouri citizen, sued for voting rights under Fourteenth Amendment’s privileges and immunities clause notwithstanding state’s statute that clearly did not extend franchise to women

§ Decision/Holding/Rationale (Chief Justice Waite): Affirm judgment, holding that Constitution “does not confer right of suffrage upon any one and that the constitutions and laws of the several states which commit that important trust to men alone are not necessarily void”

· Framers would have included it if they had meant for voting to be one of the rights of citizenship

· Fourteenth Amendment included use of the word “male”

· Would have made Fifteenth Amendment duplicative

· Universal suffrage was not current practice in states at time of adoption (except for NJ)


· (8) The Nineteenth Amendment: The Nineteenth Amendment overturned Minor

· Typically traced to 1848 Woman’s Rights Convention in Seneca Falls, NY

· Virtually no litigation surrounding Nineteenth Amendment and so it is difficult to see how far it extends

· See Adkins v. Children’s Hospital (US 1923) where the Court struck down a DC minimum wage law that applied only to women based on a broad reading of equality established by Nineteenth Amendment

· Really the only way that this question came up was related to jury service/holding public office where states were split

· Also Congress passed Cable Act (1922) based on Nineteenth Amendment, allowing women who married certain foreign nationals to retain their citizenship

Richardson v. Ramirez, 418 US 24 (1974)

§ Facts: 3 ex-offenders tried to register to vote in contravention of California’s constitutional felony disenfranchisement provision and then filed suit based on EPC of Fourteenth Amendment as well as bringing up § 2 of the Amendment that deals with “participation in rebellion”

§ Decision/Holding/Rationale (Justice Rehnquist): Historical and textual reasons to distinguish felony disenfranchisement from other state limitations under EPC à argues that since § 2 exempts felon disenfranchisement from reducing state’s congressional seats, it means that felon disenfranchisement cannot violate § 1 of the Amendment


§ Rationale for felon disenfranchisement:

· Can be thought of as just sentencing/sanction

· Think about problems with collateral sanctions generally

· Competence and social contract issues

· Can’t discriminate against people based on how they might vote (Mormon case not clearly still good law, see Marshall dissent in Richardson)

· Counter: restore franchise to bring them back into the fold

· 14th Amendment equal protection claim

· Disproportionate Racial Impact

§ (3) Hunter v. Underwood (US 1985): Supreme Court struck down § 182 of Alabama Constitution, which disenfranchised individuals convicted of any crime involving moral turpitude, because clear discriminatory intent (delegates to AL constitutional convention had selected those offenses because they were thought to be committed more frequently by African-Americans). Reached conclusion based on s2 of 14A.

· Constitutional Framework

· Rise of Strict Scrutiny for Restrictions on Voting Eligibility

Lassiter v. Northhampton County Board of Elections, p. 42

· Facts: Lassiter, black North Carolinian, refused to submit to literacy test and so was denied registration as voter

· Decision/Holding/Rationale (Justice Douglas): North Carolina literacy test is fair on its face as it is applicable to all and seems designed to test literacy – a characteristic that is reasonably related to voting – without ambiguity or vagueness that hinted at devious purpose of other states’ tests

· Standard of Review: Rational Basis


· Literacy tests are still constitutional, but prohibited by Voting Rights Act of 1965

Harper v. Virginia State Board of Elections, 383 US 663 (1966)p. 44

· Facts: Virginia residents argued that state poll tax was unconstitutional

· Decision/Holding/Rationale (Justice Douglas): State violates 14A EPC whenever it makes affluence of the voter or payment of any fee an electoral standard

· Standard of Review: Strict Scrutiny

· Dissent (Justice Black): Would leave government policies to legislatures à first state legislatures than Congress who is authorized under § 5 of the 14A to pass

ated, committed voters (over- and under-inclusive)

· But see Marston v. Lewis (US 1973) where Court upheld AZ’s 50-day durational residency requirement for state and local elections given administrative necessity of obtaining accurate voting rolls in time for election

· Federal law establishes national 30-day cutoff under 42 U.S.C. § 1973aa-1 (1994) à allows person who has moved to vote in old district via absentee voting or by person if had been registered there prior to move

· Sliding Scale for Other Restrictions on Citizens’ Vote

Court applied strict scrutiny for a while, but its application was a bit mechanical so it came up with new standards for judicial scrutiny of state actions which affect the franchise.

Burdick v. Takushi, p. 68

· Facts: HI prohibits write-in voting

· Takeaway: States can deny voters the ability to write-in candidates names if they provide constitutionally sufficient ballot access and do not impose an unconstitutional burden upon the First and Fourteenth Amendment rights of the voters

· Decision/Holding/Rationale (Justice White):


· character and magnitude of asserted injury to rights protected by First and Fourteenth Amendment with

· precise interests put forward by State as justifications for burden imposed by its rule;

· Whether those interests make it necessary to burden those rights.

· HI makes it relatively easy to get on ballot through creation of new party; as candidate of established party; or via nonpartisan ballot

· Limited expressive function of voting/more about winnowing field to select candidate and so little burden on franchise

· HI has interest in avoiding party-raiding at primary level and wants acceptance of results by prohibiting factionalism/sore loser candidacies at general election and wants to allow unopposed victors of primaries to be designated officeholders and wants voters to be informed so doesn’t allow late entrants

· Dissent (Justice Kennedy with Blackmun and Stevens joining): Prohibition results in large number of voters not having effective vote as seen by large numbers of blank votes, even where there is only one candidate running and locks voters into candidates who may not address emergent issues/concerns à besides, state concerns are either very weak or might actually cut for allowing write-ins