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Election Law
Wayne State University Law School
Benson, Jocelyn

Law of Elections and Political Organizations Outline (Benson 2012)

Overall Theme: What Should the Democratic Process Say?

Dichotomy of participation and representation

Participation: The act of casting a ballot (who should vote, what should the requirements be for voters, mechanical)

Who has the most at stake in the outcome of who is elected?

Representation: Who should run; Question of majority/minority representation, how individual represented in democracy

Descriptive Representation: Whether someone who has the same characteristics as you should be representing you (Ask what type of representation do we want the law to protect?)

Substantive Representation: Whether someone who has the same ideas about policies, etc. as you should be representing you (Ask is entity you are apart of serving you?)

Group Politics and “special Interests”

Partisanship: Groups based on race, gender, religion, age, etc.

If you are a member of one of these groups, how similar are your interests to other members of that group?

Power: The people who have the power to change election law used the current election law to get into power (so they probably want to maintain the status quo, because they don’t want their present dominance to be altered)

Unsettled Nature

Tools of Law and Democracy: The Constitutional framework, statutes, history and historical perspectives, case law, federal statutes

Law is uncertain in this field in part because there are so many pieces and applications, there changes from election cycle to cycle. How to predict where election law will go next?

When dealing w/ election law courts aren’t just dealing w/ applying case law or statute to a situation, Applying laws of their own infrastructure process.

For that reason central question remains – is it appropriate for judges to make certain decisions?

Two Fundamental Concepts:

(1) Certain basic rights or liberties should be guaranteed to each individual, and

(2) That each individual should have an equal opportunity to participate in the making of public policy so that each individual’s interests will be served.

The Right to Participate

Constitutional Background

As the Constitution is written, only men and women (over 18) have the right to vote. Originally there was nothing written in the Constitution about the right to vote and it was seen as strictly a sate decision. Lead to the notable struggle – should states or the federal government decide?

Minor v. Happersett, (1875) [13] – denying women right to vote on basis of the 14th Amendment. Although women are citizens, P&I clause does not affirmatively grant all citizens the right to vote; if P&I secured the right to vote, no need for 15th Amendment. Framers would have included it if they had meant for voting to be one of the rights of citizenship (later overruled by the 19th amendment.)

The Constitution does not say much about political participation; the plurality of post Bill of Rights Amendments are about voting rights and the franchise, but they are all framed in the negative.

Article 1, Sec. 4 – lays out the State’s ability to control voting laws (federal courts should defer to states)

Reasonable time, place, and manner (except when congress enacts something)

14th Amendment – extends due process to the states

Section 1 gives the right to vote (no state can infringe on the right to vote), and establishes voting as a fundamental right (so strict scrutiny should be applied)

Section 2 gives proportional representation to the states; states will be punished if they enact laws that in anyway abridge or deny the right to vote

Harper: Federal gov’t can “tinker” with what the state does

Burdick: Relaxed scrutiny if non-discriminatory time/place/manner

15th Amendment – establishes that the right to vote shall not be denied on account of race, color or previous condition of servitude

Felon Disenfranchisement Laws

Not in federal law, so entirely a state law issue. every state has restriction/bans on felon voting except Vermont

Type of State Laws – Not based on the crime itself but on the commission of the sentence (influences policy)

Permitting Inmates to Vote (VT)

Only Not permitting inmates to vote (MI & 11 others)

Not permitting inmates and parolees to vote (36 states)

No voting if incarcerated, on probation or on parole (31 States)

No voting even if sentence is completed

some states allow restoration though application process or waiting period

Should felons vote?– many mentally ill, stake in community when broke laws, educated voter, are we rehabilitating when say can’t vote, once done w/ prison & parole do they have stake in society?

Richardson v. Ramirez (1974) [25]

Facts: Statutes didn’t allow respondents to vote even though they had served their sentences; claimed violative of equal protection

Rule/Holding: Ct. upholds CA felon-disenfranchisement. EP does not affirmatively grant felons the right to vote. Sec 2 of 14th A contemplates felon disenfranchisement (sanctions for denying right to vote exclude these laws); if Sec 1 required right to vote, this clause would not make sense. Section 2 explicitly permits felon disenfranchisement doesn’t matter violates EP. Removes strict scrutiny from felon disenfranchisement

Hunter v. Underwood (1985)

Facts: Two individuals who had been denied the right to vote for the misdemeanor of issuing worthless checks, challenged the constitutionality of the provision disenfranchising those persons convicted of any crime involving “moral turpitude.”

Holding: Court strikes down law under EP of 14th discriminatory intent – here balancing EP & state interest (not EP & § 2), EP still relevant for felon disenfranchisement even if permitted under § 2 Ramirez

Plaintiff must show that the racial intent behind legislation was a substantial and motivating factor

Defendants have to show that this statute would have been enacted despite the racial motivating factor

o Today, intent to discriminate against blacks + disparate impact triggers strict scrutiny & the court finds a violation of the EPC.

Modern Constitutional Framework

Lassiter v. Northampton County Board of Elections, 360 U.S. 45 (1959) [37] – Literacy Test Case

Rule/Holding: Court applies a rational basis test – that the ability to read and write are rationally related to the exercise of the franchise and so may be used as a prerequisite to voting. However, if literacy tests are used to perpetuate discrimination they are unconstitutional.

Harper v. Virginia Board of Elections, (1966) [39] – poll tax case

Holding: Strikes down Virginia’s poll tax as Equal Protection violation; State violates EPC of 14th Amendment whenever it makes affluence of the voter or payment of any fee an electoral standard . The tax divides the eligible voters of the State into two classes: those who can afford the tax and those who cannot. As such, it invidiously discriminates against those who cannot afford the tax.

Stands for – the unconstitutionality of poll tax and the formal extension of one person one vote principal

Kramer v. Union Free School District No. 15 (1969) [44]

Facts: NY limited right to vote in certain school district elections to residents who were otherwise eligible to vote in state and federal elections if they also leased or owned real property within district or were parents or custodians of children in local public school. Appellant is stockbroker who was not eligible to register or vote in local school district elections

Holding: Voting is a fundamental right – so strict scrutiny is required. Statute is struck down – not narrowly tailored enough to meet stated goal of limiting to those “primarily interest” in school affairs given importance of franchise

The Struggle for Black Enfranchisement

Early History: After Reconstruction Amendments, majority of black men voted; then, states systematically disenfranchised black voters through various means and Congress/the Courts failed to protect them

Major techniques for black disenfranchisement: force (Giles), restrictive and arbitrary registration practices (Guinn, Lane), poll taxes (Harper), and literacy tests (Lassiter)

Giles v. Harris (1903) [66]

Facts: Grandfather clause provision of statute stated that anyone who registered before 1903 would be registered for life, but anyone who tried to register after (most African Americans) would have to jump over many hurdles in order to register (added to Alabama Constitution). Test – administered by white election officials, argument was that they conducted them in a bias manner. (effect was to prohibit blacks from voting)

Holding: It is impossible for the Court to grant relief because if the scheme is fraudulent then ordering that the P can vote will not cure it. Court is not going to be able to enforce order/change political issues. There is no remedy that would simply add them to the voter rolls; if you want to change the process, vote for someone who will change the legislation (look to political process)

Circular reasoning because they aren’t allowed to participate in political process.

Court believed that As long as the text of laws (such as this) are neutral they are permissible and the Supreme Court wouldn’t intervene.

Guinn v. United States – Court held a grandfather clause (exempting voters from literacy test if registered before 1966) violates 15th A (discriminatory).

Lane v. Wilson (1939)- Post-Guinn OK tried another scheme which scheme banned voters unless registering w/in 12-day period – the Court strikes down arbitrary qualifications in OK, saying the action is about “inequality of treatment,” not “denial of the right to vote”

Note on Lite

ion principle)

Presumption: Everyone that lives in the same area has the same interest

Presumption: Can’t have random districts scattered all over the state

Discrepancies are constitutionally permissible because turn-out is ephemeral and hard to capture – we need to be practical

Constitution and Redistricting: The Constitution doesn’t explicitly lay out anything for redistricting, but the Supreme Court says that the Constitution should have an effect on redistricting: Article 1, Section 4 (Guarantee Clause) gives a kind of guaranty that every State in the union should be furthering or protecting the Republican form of government

Reapportionment Recap

Baker v. Carr – Court applies EPC to redistricting Claims

Westbury – extends Baker to cover congressional districts

Reynolds v Sims – EPC violation if numerical differences

The Political Thicket

Colegrove v. Green (1946) [113]

Facts: Voters in IL districts that have much larger districts than other IL congressional districts sued; districts were created according to Census of 1900.

Holding: Court refused to rule on a matter of legislative apportionment, regarding it as a non-justiciable political question. Art. I, sec. 4 of Constitution puts it in hands of state/state legislatures/Congress and it would be too difficult to administer remedy and court is not competent to establish alternative system – courts shouldn’t enter the political thicket.

Was worried that this would lead courts to point where they would decide elections – combined jurisdictional and prudential obstacles

(1) Left to a coordinate branch (see Article I, §4) and so jurisdictionally walled off from consideration by courts

(2) Requires policy determination for which there is no judicial competence (both in terms of ability and in terms of jurisdictional power of court)

(3) Best left to other institutional actors (political change is better to come from political actors/ people à more expertise, easier to change)

(4) Institutional competence of judiciary over remedy (doesn’t want court picking representatives)

Baker v. Carr (1962) [119]

Facts: TN failed to pass reapportionment plan from 1901 to 1961 during which time substantial population shifts occurred.

Holding: Challenges to mal-apportioned districts are justiciable/can be tried in federal courts; did not decide whether such districts were in fact unconstitutional.

Mal-apportioned: Term commonly used to describe a districting plan whose districts are improperly unequal in population. District is described as “underrepresented” if its population is greater than the mean, and as “over-represented” if its population is less than the mean.

Concurrence: If rational basis, defer to state, but we have to get involved here because there is no other recourse for voters

Dissent: No clear standards by which a Court can evaluate redistricting decisions

Reynolds v. Sims (1964) [134] – ONE PERSON, ONE VOTE

Facts: AL legislature has not reapportioned state legislature since 1900 federal census, despite state constitutional mandate to do so. Divergence was 41:1 in terms of population (for everyone 1 person in one district there were 41 in another)

Rule/Holding: Voting is a fundamental, personal right (strict scrutiny), therefore both houses of state legislature must be apportioned based on population. Discrimination against individuals which impairs their constitutionally-protected right to vote must be “carefully and meticulously scrutinized” under EP

“Legislators represent people, not trees or acres.” If the State gives voters in one part of the State much more weight in the vote of their legislators, the right to vote of voters in underrepresented parts of the State has been diluted.

Some deviation permissible for “insuring some voice to political subdivisions, as political subdivisions”