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Election Law
Wayne State University Law School
Benson, Jocelyn

Law of Elections – Benson – 2012
Part I – The Constitution & The Right to Participate
I. The US Constitution – Voting As a Fundamental Right
            A. History of the Right to Vote/Right to Participate
1.      TWO major themes – the right to participate and the laws that govern it (what it means to be represented) – look at these themes and make connections
2.      Definition of democracy – two views
a.       Participatory – the act of participation, perspective of who is participating, why, and what interests are at play.
b.      Representative – the laws governing representation. Who is elected/can be elected, the number of reps, who is allowed to be a rep.
3.      Laws that Govern Elections
a.       US Constitution – particularly the 14th & 15th Amendments – principles can’t be changed.
a)      14th Amend: Sec. 1 – no laws abridging the privilege/immunities of citizenship, guarantees of due process and EP (states). Sec 2: enforcement mechanism for states – rep apportionment by states, but can’t deny right to vote – penalty by congress (rep reduced).
b)      15th Amend: Sec. 1 – Can’t deny vote on the basis of race/color (AA enfranchisement). Sec. 2 – congressional enforcement
b.      VRA – Secs. 2, 4 & 5
c.       HAVA & NVRA – main laws participation, voter able to register & physically cast vote.
d.      FECA – 1st campaign finance law; BCRA – new version
II. Who Can Vote?
A. Voting Qualifications
1.      Language/literacy – tests are generally seen as a violation of the VRA, but some federal requirements.
2.      Mental competence – must be some measure of mental competence
3.      Citizenship – noncitizens cannot vote (state), local ordinances permit noncitizens (expanding the franchise, counterargument – vote dilution)
4.      Age – 18+, some localities have tried to expand to under 18 voters
5.      Residence – Dunn v. Blumstein – geography defines what residence means & what residential restrictions are permissible under law. Have to 30 days out – state interest in preventing voter fraud.
B. Felon Disenfranchisement
1.      No federal law, states do own rules – every state has restriction/on felon voting except Vermont & Minnesota
2.      Types of felon disenfranchisement statutes:
a.       Only inmates prohibited (MI & 11 others)
b.      Only inmates & parolees prohibited (36 states)
c.       Can’t vote if incarcerated, on probation, or parole (31 states)
d.      Can’t vote even if sentence is completed
e.       Some states allow restoration through application process or waiting period
3.      Richardson v. Ramirez -14A challenge to California FD law – violation of EPC’s fundamental right to vote.
a.       Supreme Ct applies strict scrutiny – where the law furthers a legitimate compelling governmental interest & is narrowly tailored to further that interest.
b.      Rules that Sec. 2 of the 14A applies – justifies the disenfranchisement of felons (based on past conviction of crime).
                                                                                      i.      States can deny the right to vote. PLs can’t rely on Sec. 1 to block a state from doing what Sec. 2 allows them to do.
c.       Counterargument that Sec. 2 doesn’t apply – languge that is an exception is “participation in rebellion or other crime” – whether “other crime” means all crimes or crime related to rebellion.
4.      Hunter v. Underwood
a.       Adds an additional component to the Richardson analysis – under Sec. 2 of the 14th Amend, states can disenfranchise felons based on past commissions of crimes.
b.      Rule for FD laws post-Hunter
                                                                                      i.      P must show the law was enacted with discriminatory intent
                                                                                    ii.      D must show the presence of a legitimate state interest that would’ve led the law to be passed regardless of discriminatory intent.
C. The Right to Vote pre-1960
1.      U.S. Constitution
a.       Art. I, § 4 – essentially: States have explicit authority to determine the time, place and manner of elections. BUT there is an explicit protection – the fed. govt can override a state action they deem inappropriate (only for fed. elections).
2.      Reynolds v. Sims – the bedrock of election law, opened the door for redistricting law and federal control over election?. Set the baseline that voting is a fundamental right.
3.      Lassiter v. North Hampton Cty. Bd. of Elections – challenge to the NC literacy test law – state interest: way to ensure that voters were informed about what they were voting on. Issue – whether the test was narrowly tailored to further that justification.
a.       Criticism of literacy tests – have been implemented in a discriminatory way & used to disenfranchise voters. Doesn’t necessarily translate to being informed. Not necessarily narrowly tailored to further the state interest.
b.      Supreme Ct. – held that literacy tests are constitutional – don’t single out a single class (not implemented in a discriminatory manner). On their face literacy tests are constitutional.
c.       BUT – literacy tests violate the VRA (why they no longer exist)
4.      Harper v. Virginia State Bd. of Elections – challenge to VA’s poll tax. Compelling govt interest argued – tax collection (revenue going to state uses).
a.       Criticism – requirement is an additional tax incurred in order to exercise the fundamental right to vote. Citizens are not equal financially.
b.      Supreme Ct. – the poll tax doesn’t survive strict scrutiny under the 14th Amend. EPC, so therefore are unconstitutional.
                                                                                      i.      Degree of discrimination is irrelevant, the requirement of paying a fee creates an invidious discrimination that runs afoul of the EPC.
c.       Stands for two things: (1) poll taxes are unconstitutional under the EPC, (2) extends the fundamental right to vote analysis of Reynolds to state laws that govern the voting process.
d.      Distinguished Lassiter – strict scrutiny was applied in Harper as a way of evaluating state laws that govern the election process.
D. Modern Neutral Barriers
1.      Kramer v. Union Free School District No. 15 – raises questions about qualifications to vote. PL wanted to vote in the school board election – didn’t pay rent, own property, or have children in the district – law prevented him from doing so. PL argued qualifications violate the EPC.
a.       Supreme Ct – applies strict scrutiny – voting is a fundamental right, whether the law is narrowly tailored not to further its interest.
b.      Rationale/interest for the law – (1) limiting school board elections to “members of the community of interest,” & (2) state may conclude that property taxpayers & parents of children are those “primarily interested” in school affairs.
c.       Supreme Ct – holds that the classifications are NOT narrowly tailored to further a compelling governmental interest – the law is unconstitutional under strict scrutiny.
d.      Strict scrutiny – whether it’s proper or not for the fed. govt (the Court) to tell a locality how to define its electorate
                                                                                      i.      Here – yes b/c voting is a fundamental right (EPC)
                                                                                    ii.      Federal oversight – promotes uniformity & creates clear rules
2.      Burdick v. Takushi – Hawaii law has no provision for write-in voting in its primary & general elections – challenged as a violation of the fundamental right to vote (14th Amend).
a.       Is there a distinction between voting rights and ballot rights? Is there a distinction btwn laws governing who you vote for and whether you can votes
                                                                                      i.      Art. I, § 4 – states have authority to regulate the time, place, and manner of elections.
                                                                                    ii.      There’s a difference under the role the fed. govt plays – time, place, and manner calls for a less amount scrutiny (what you can do once you get the ballot).
b.      Supreme Ct – departs from the strict scrutiny analysis – states retain the power to govern their own elections – Art. I, § 4
                                                                                      i.      SS does not apply in situations where states are trying to limit the number of candidates the electorate may choose from.
                                                                                    ii.      Balancing test applies: creates a formal distinction btwn state laws – 2 types of restriction on the right to vote – 1) severe (unreasonable & discriminatory) and 2) reasonable, nondiscriminatory that advance the state’s regulatory interests.
                                                                                  iii.      SS applies to severe restrictions but a lesser scrutiny is apples to reasonable nondiscrim regulatory restrictions & to Hawaii’s write-in prohibition.
E. Voter ID Laws
1.      The first voter ID laws started in late 1800s/early 1900s – were signature matches. Mid 1990s – states began adding to their voter ID requirements.
2.      Different types of ID:
a.       Photo ID requirements (Crawford)
b.      Govt-issued ID requirements
c.       ID requirements with affidavits (Michigan – MCLS 186.523)
d.      Signature requirement
e.       Federal ID requirement under HAVA (only applies to first time voters)
3.      Crawford v. Marion Cty Election Bd. – Indiana Voter ID law – limited number of IDs you must present and applies to everyone voting person. Challenged as a substantial burden on the right to vote under the 14th Amend.
a.       Modern standard for equal protection jurisprudence in election law
b.      Court’s analysis of Harper – a poll tax is an example of invidiously discriminatory election law (SS).
c.       Supreme Ct – applies the Burdick balancing test to the Indiana Voter ID law – where does an ID law fall within the spectrum? – within the ability to get a ballot.
                                                                                      i.      Closer to a poll tax (Harper) than a write-prohibition, but the Court still uses the Burdick balancing test over Harper strict scrutiny test.
                                                                                    ii.      Court’s test here – based on the burden the law places on the voter – one law is invidiously discriminatory and the other is reasonable.
d.      Level of scrutiny – balancing test (difft. than SS adopted in Harper): look at the burden the law places on the voter to determine which to apply – strict scrutiny is invidiously discriminatory & balancing test is reasonable state interest.
e.       Balancing test itself – the Court must identify the state interest behind the law & must balance it against the burden on the voter – which is greater?
                                                                                      i.      The photo ID law in Indiana is upheld – it’s constitutional & it’s justified.
                                                                                    ii.      The Court is ok with a law that addresses p

                            i.      Ex – legislative bodies, executive officials, other officials, or voting changes adopted by a state court
b.      Federal courts
                                                                                      i.      “Court ordered” changes developed & imposed on a jurisdiction by a fed. court are NOT subject to Sec. 5 review.
                                                                                    ii.      BUT “court adopted” changes, or changes such as consent decrees that are ordered by a fed court but reflect the policy choices of the jurisdiction DO require Sec. 5 review.
C. Sec. 5 & Racial Districting (what violates Sec. 5?)
1.      Any proposed voting changes that have “the purpose” or “the effect or denying or abridging the right of account of race or color” [must be denied preclearance].
2.      Racially Polarized Voting – a phenomenon in voting behavior where voters casts ballots based on their race and/or the race of the candidate.
a.       Ex: When White & Latino voters consistently vote for different candidates, along racial lines.
b.      Presence can and will have an impact on whether a redistricting plan is a potential violation of Sec. 5
3.      Vote Dilution – The creation of districts that either:
a.       (1) divide members of a racial or ethnic minority group among several districts, artificially reducing the group’s opportunity to influence elections or
b.      (2) place extraordinarily high percentages of members of a racial or ethnic minority group in one or more districts, so that minority voting strength is artificially limited to those districts and is minimized in neighboring districts.
4.      Retrogression – an election change that causes a reduction in the ability of voters in a minority racial group to cast an effective vote or elect their candidate of choice; backsliding
a.       The only thing that violates Sec. 5 of the VRA
5.      Safe, Influence, & Coalition Districts
a.       Safe – voters of color are assured the opportunity to elect the candidate of their choice (minority district)
b.      Coalition – different minority races in the district combine to create a majority
c.       Influence – minority voters of one race in a district are large enough to have some influence
6.      Beer v. United States  – the gold standard for interpreting Sec. 5 and it’s language.
a.       Supreme Ct. – upheld the redistricting plan as permissible under Sec. 5 b/c it did not reduce the electoral strength of AAs in the city.
b.      Sec. 5 must be read in light of its purpose of ensuring that “no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.”
                                                                                      i.      Sec. 5 is just about making sure that things don’t get worse than they already are
c.       The Court finds that the phrase “denying or abridging the right to vote on account of race or color” limits the term “effect” to retrogressive effects.
7.      Takeaways – Sec. 5 & Racial Districting
a.       Beer v. U.S. – districts covered under Sec. 5 must show that a proposed change to election laws/new districting plan does not have a “retrogressive” effect on the ability of a minority community to elect their candidate of choice.
b.      Bossier Parish I – a proposed voting change that violates Sec. 2 of the VRA will not necessarily be denied preclearance under Sec. 5
c.       Bossier Parish II – Sec. 5 is violated only if the changes at issue are “retrogressive” in “purpose” or “effect.” Thus, an election law/redistricting plan enacted w/a discriminatory, but non-retrogressive purpose, must be precleared under Sec. 5. No longer good case law.
d.      Two step inquiry (after 2006 reauthorization of VRA): Laws cannot have a-
                                                                                      i.      1) Retrogressive purpose or effect; or
                                                                                    ii.      2) An intent to discriminate
                                                                                  iii.      Covered jurisdictions have the burden of proving that the law is not passed out of an intent to discriminate & is not retrogressive.
8.      Georgia v. Ashcroft – GA’s 2001 redistricting plan in controversy – added safe districts. GA Democrats liked the plan but DOJ said it created a decrease in AA population, sounds like retrogression.