138 research outputs found

    “Natural Born” Disputes in the 2016 Presidential Election

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    The 2016 presidential election brought forth new disputes concerning the definition of “natural born Citizen.” The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Unlike challenges to President Barack Obama’s eligibility, which largely turned on conspiratorial facts, challenges to Cruz’s eligibility turned principally on the law and garnered more serious attention concerning a somewhat cryptic constitutional clause. Understandably, much attention focused on the definition of “natural born citizen” and whether candidates like Cruz qualified. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling such disputes. This paper exhaustively examines these challenges, identifies three significant complications arising out of these disputes, and urges a solution for future presidential elections

    Complexity Confronting State Judges and the Right to Vote

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    In response to Joshua A. Douglas, State Judges and the Right to Vote, 77 Ohio St. L.J. 1 (2016)

    Faith in Elections

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    Americans may be suffering a crisis of faith. But not necessarily a crisis of religious faith. Instead, it is a crisis of faith in elections.This language of faith in elections—do we have faith, are we losing faith, can we restore faith—pervades our political discourse and suggests religious imagery. Examples only scratch the surface of the language of faith in elections, democracy, and the American ideal. The language is seemingly everywhere. Words, of course, take on different meanings in different contexts. But the choice to use the word faith does appear to deliberately invoke religious imagery. Words like trust, confidence, or belief could be used. Faith, at times, could simply be a synonym. But the religious imagery extends elsewhere, and there seems a stubborn insistence on choosing the word faith over these other words.I am not a linguist. Or a theologian. Or a philosopher. So, I approach this Essay with some trepidation. Instead of popular or political comparisons of our democratic order as a type of faith, this Essay examines faith in elections as the term is used in the federal courts. It opens by examining how we might think of faith, but in a religious context (principally, the Christian faith) and a political context. It then examines four ways that courts have invoked faith in the context of elections. Three are less controversial uses: faith as attachment to a political party, faithless presidential electors, and good faith in redistricting. One is a more significant use: faith in democracy itself. This Essay concludes by suggesting there are reasons to be reluctant to use the phrase faith, both from the judicial context and the religious context, and that other, better language may be more valuable

    Scrutinizing Federal Electoral Qualifications

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    Candidates for federal office must meet several constitutional qualifications. Sometimes, whether a candidate meets those qualifications is a matter of dispute. Courts and litigants often assume that a state has the power to include or exclude candidates from the ballot on the basis of the state’s own scrutiny of candidates’ qualifications. Courts and litigants also often assume that the matter is not left to the states but to Congress or another political actor. But those contradictory assumptions have never been examined, until now. This Article compiles the mandates of the Constitution, the precedents of Congress, the practices of states administering the ballot, and judicial precedents. It concludes that states have no role in evaluating the qualifications of congressional candidates—the matter is reserved to the people and to Congress. It then concludes that while states have the power to scrutinize qualifications for presidential candidates, they are not obligated to do so under the Constitution. If state legislatures choose to exercise that power, it comes at the risk of ceding reviewing power to election officials, partisan litigants, and the judiciary. The Article then offers a framework for future litigation that protects the guarantees of the Constitution, the rights of the voters, and the authorities of the sovereigns

    Electoral Votes Regularly Given

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    Every four years, Congress convenes to count presidentialelectoral votes. In recent years, members of Congress haveobjected or attempted to object to the counting of electoral voteson the ground that those votes were not “regularly given.” Thatlanguage comes from the Electoral Count Act of 1887. But thephrase “regularly given” is a term of art, best understood as“cast pursuant to law.” It refers to controversies that arise afterthe appointment of presidential electors, when electors casttheir votes and send them to Congress. Yet members of Congresshave incorrectly used the objection to challenge an assortmentof pre-appointment controversies that concern the underlyingelection itself. This Essay identifies the proper meaning of thephrase “regularly given,” articulates the narrow universe ofappropriate objections within that phrase, and highlights whythe failure to object with precision ignores constraints oncongressional power

    Reducing Election Litigation

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    Which candidate’s name should be listed first on a ballot? Should inactive voters’ names appear printed in polling place books? Should elections be conducted exclusively by mail? Should online voter registration be available to prospective voters? When voters sign a petition to help a candidate appear on the ballot, must the petition’s circulator reside in the state? These are the questions that ordinary election administration rules answer. There might be better or worse rules. These rules might advance one set of benefits in exchange for another set of costs. They could benefit one candidate or group over another. Like every rule, they could alter behavior in ways that affect who participates in elections or which candidate wins. But they have another thing in common: plaintiffs have litigated each dispute. Judges have increasingly evaluated ever-finer points of election administration. This Article posits why the judiciary has done so and offers potential ways to reduce election litigation

    Hearing before the United States Senate Committee on Rules and Administration: The Electoral Count Act: The Need for Reform

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    Originally published by the United States Senate Committee on on Rules and Administration Perma.cc Copy of Testimony Perma.c
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