Election Law and Election Subversion

Scholars of American election law used to take the rule of law as a given. The legal system, while highly imperfect, appeared sturdy, steady, and functional. Recent election cycles—culminating in dramatic attempts at election subversion—have revealed this assumption beginning to break down. Without the rule of law as a dependable constant, the study of election law quickly expands. Legal experts now are simultaneously occupied with: first, the substance of election laws; second, the design of election institutions; and third, the threat of participants unlawfully undermining elections from within. This Essay identifies and contextualizes the rule-of-law pivot that is reflected in this rapidly expanding body of scholarship, including by exploring the definition of election subversion and its relationship to the rule of law. It then examines three basic prescriptive tacks that legal experts have taken in response to the threat of election subversion. These approaches can be understood as constraint-based, incentive-based, and corrective. So framed, each approach presents fundamental advantages and disadvantages for those seeking to ensure that the rule of law continues to govern elections. No single approach, in other words, provides clear and straightforward direction. This Essay concludes by offering a path forward: one that, by necessity, is multifaceted, interdisciplinary, and messy. This complexity reflects the depth of the underlying conundrum, which asks election-law scholars to consider how, if possible, to harness the rule of law to ensure the rule of law

Redistricting Litigation and the Delegation of Democratic Design

This Article seeks to reveal how the practice of litigating as redistricting, which has evolved into a form of litigation highly susceptible to procedural manipulation, has created a type of redistricting that grants profound power to those who choose to litigate. In so doing, this Article rejects any understanding of the redistricting process that understands the influence of litigants to be somehow negated or neutralized by the involvement of courts. It recognizes, moreover, that many of the defining features of redistricting litigation–which are, in certain respects, analogous to those characterizing other problematic forms of litigation–nevertheless reflect some of the most startling effects of applying the trans-substantive norm of civil procedure to extraordinary causes of action. These effects stem in part from what is at stake. Redistricting through litigation has far-reaching and even multiplied effects on the public interest, as challenges to state-imposed redistricting regimes affect the composition of the legislatures that enact future statutes. Moreover, these effects are neither rare nor random, arising at unpredictable times in an unpredictable fashion. Redistricting litigation instead occurs with clocklike regularity every redistricting cycle, with jurisdictions across the country relying on this form of litigation to ensure legality and simply when necessary to overcome legislative deadlock. In other words, the effects of redistricting litigation are profound–and predictably so. In exploring the implications of these observations, this Article initiates the project of subjecting litigant participation in redistricting to the scrutiny it warrants. Part I begins with an introduction of redistricting litigants. It identifies several traits that best characterize these actors, a group whose composition is heterogeneous, ad hoc, and largely self-selected. It situates these actors as critical participants in the redistricting process but as virtual non-entities in the existing literature. After identifying the stakes implicated by this unusual combination, Part I confirms that litigant participation will become no less critical to the redistricting process in the foreseeable future. The delegation of authority to litigants instead promises to remain as central to the redistricting process as it has been for now half a century. Part II reveals the consequences. It demonstrates how the delegation of authority operates through a form of litigation subject to significant control by litigants. At the outset, redistricting through litigation offers a flexible and forgiving regime to those electing to litigate, with a standing doctrine able to accommodate anyone–that is, anyone of sufficient resources and adequate motivation–wishing to participate in the redistricting process; a venue regime that provides extraordinary rewards for parties trying to secure a preferred judge; and flexibility in claim selection that permits litigants to set the courts’ agendas in powerful and consequential ways. Yet at the same time redistricting litigation is so hospitable to litigants, it offers remarkably few protections to non-litigants. A striking example of aggregative litigation packaged as an individual lawsuit, redistricting litigation seems like the sort that should be subjected to class-action-style protections. But it is not. Compounding this neglect of non-parties is a shifting regime of legal standards that courts have developed in response to the exigencies of the election cycle. This unusual compression of civil procedure gives litigants significant control over several fundamental aspects of the process, including the balance of power among redistricting agents, the standards for relief, and the timing of court-imposed remedies. Combined, these features produce a procedural regime ripe for manipulation by litigants. This, in turn, produces an unexpected form of redistricting–one that grants sweeping power to actors who are not representative of the general electorate and that requires them to exercise power through opaque and indirect means. These features reflect a redistricting regime developed not through deliberate effort, but rather through the accidental effects of judicial intervention. It reveals a startling model of democratic design. Such a regime raises normative concerns. Part III identifies the questions that litigant participation raises with respect to fundamental qualities of the redistricting process, including its outcomes, efficiency, and legitimacy. These concerns urge a more thoughtful delegation of democratic design. To this end, the Article discusses potential reforms that may help to advance two general goals: improved representativeness and reduced opportunity for procedural manipulation by litigants. At the forefront of these proposals are institutional adjustments meant to reduce reliance on litigants and procedural changes meant to give greater voice to non-parties. These discussions, which come fifty years after the Supreme Court first transformed litigants into agents of redistricting, are long overdue

Presidential Control of Elections

An election that is “disputed” lacks two qualities after Election Day: a clear winner and a concession. These elections instead depend on legal processes — recounts, court proceedings, and more — for resolution. As a result, when a sitting President, running for reelection, becomes immersed in a disputed presidential election, he potentially enjoys an advantage over his opponent. He can attempt to exploit the powers of the presidency to push these legal proceedings in his favor. As a practical matter, this advantage can be formidable. A sitting president can resort to his extraordinary bully pulpit, for example, to influence public sentiment. This advantage shrinks, however, with respect to the President’s official powers — the legal authorities that the President can wield by virtue of his role in government. Here, a sitting President’s advantage over his opponent, at least after Election Day, is slight. As this Essay explains, the President’s powers over a disputed presidential election are not primarily legal in nature; they are political. And, accordingly, so are the means to push back

Judging Congressional Elections

This Article reveals what passes as federal constitutional law in this area: a chaotic set of ad hoc, state-based interpretations that vary drastically by jurisdiction. Some states, for example, have interpreted Article I, Section 5 to permit courts to adjudicate congressional election contests. Others have concluded the opposite. Through such conflicting interpretations, state courts have contributed to a deep, intractable split on the provision\u27s meaning and reach. State legislatures have compounded the discord by enacting statutes that codify their interpretations, a move that renders their constitutional determinations practically unreviewable. Meanwhile, both Houses of Congress continue to adjudicate these congressional election contests themselves. This has allowed each House to articulate its view of Article I, Section 5 through two means, both inadequate: conclusory resolutions that do not address the reach or effect of the constitutional command and committee reports that do not represent the views of the entire body. This motley collection of precedents is what currently constitutes the law of Article I, Section 5. It is a regime governed by authorities that are confused, conflicting, non-authoritative, and outdated. To be clear, the inconsistencies are not due to experimentation or policy divides. The differences among states do not reflect their status as laboratories of democracy. Instead, this divide tracks fundamental disagreements over the meaning of Article I, Section 5, and it confirms that jurisdictions are struggling to reconcile the constitutional command with state control over election administration. The harm caused by this arrangement is significant. Without clarification of basic procedural questions, election contests are governed by unpredictability and uncertainty, which in turn leads to the potential for partisan manipulation, illegitimacy, and delay. Serious concerns in any context, these problems are particularly acute in the context of disputed federal elections, where the need for legitimate, accurate, and timely resolution of disputes is at an apex. Moreover, without a sensible resolution of forum-related confusion, election contests are adjudicated in a suboptimal fashion, with some states offering no judicial forum at all. All the while, both the House and the Senate are grappling with state interference in their own adjudications. Particularly given the skyrocketing rates of postelection disputes, there looms, in the background of every congressional election, a threat of a political crisis. Despite the depth of the confusion, a resolution is possible. This Article asserts that Article I, Section 5 itself offers previously unrecognized answers to its procedural quandaries. Namely, as the Judge of these elections, Congress gets to decide how they are resolved. Congress, in other words, gets to decide whether courts may participate in this process, and, if so, how. As this Article will explain, Congress\u27s actions thus far indicate tacit approval of state court proceedings. Yet tacit approval is no way to run an election, and Congress\u27s indeterminate gestures have not made for good law. Nor have they made for good outcomes: flaws in the current system already may have changed the outcomes of elections and decreased the legitimacy enjoyed by those eventually seated. Congress can, and it should, act to clarify its preferences pursuant to Article I, Section 5, and it should do so in a way that advances the values that are essential to fair and accurate elections. This Article proceeds in four parts. Part II documents the conditions that have produced the unusual interpretive vacuum. It reveals that Article I, Section 5 raises questions that demand resolution. One such question, as simple and inescapable as it is overlooked and unresolved, goes to the question of forum. Does Article I, Section 5 allow courts to adjudicate congressional election contests? Using this inquiry as an anchor, this Article exposes the failure of federal authorities to address the provision\u27s ambiguities, much less to resolve them. The scholarly community, for its part, appears not to have recognized that these issues exist. This phenomenon can be understood as an interpretive vacuum. This Article identifies both the legal and the practical consequences. Part III describes the dizzying legal landscape. Court-like proceedings, in both the House and Senate, operate alongside an inconsistent and capricious state-based regime for judging congressional election contests. In some jurisdictions, state legislatures have opened their courthouse doors to thwarted congressional candidates. Other jurisdictions have slammed those doors shut. Still other jurisdictions attempt to split the difference, as they permit courts to adjudicate congressional election contests but only pursuant to a sui generis set of rules. Inconsistency is the constant. Part IV begins by proposing a novel theory of Article I, Section 5. This theory understands the constitutional mandate both to empower Congress and to accommodate court adjudication of congressional election contests. This Part then explores the practical effects of not embracing a unifying theory. The existing regime harms values fundamental to democracy in the United States, as it injects uncertainty and inappropriate procedure into the adjudication of political disputes. It does so, moreover, precisely at the moment that a stable and effective legal regime is most vital. Part V concludes with a proposal for reform. It explores four ways that Congress could replace the confused, inconsistent regime with a set of procedures governed by a clear and sensible design. Ultimately, it advocates that Congress adopt the least drastic. Congress should, first, confirm its desire to rely on state court adjudication and, second, regulate the process. More specifically, it should impose procedures such as those relating to exhaustion, timing, and evidence preservation. This simple but powerful move would help to ensure impartial, timely, accurate, and constitutional adjudications of disputed congressional elections-adjudications that would then be subject to plenary final review by either House of Congress. The result would not only calm the procedural waters; it would help, in future elections, to prevent the disorder that this interpretive vacuum otherwise threatens to impose

Beyond Severability

Severability is a wrecking ball. Even the most cautious use of this doctrine demolishes statutes in contravention of legislative intent and without adequate justification. It does so through the imposition of an artificially restrictive framework: one that requires that courts respond to a statute’s constitutional flaw by disregarding that statute either in whole or in part. In the last few years alone, this framework has flattened the Voting Rights Act, threatened the Bankruptcy Code, and nearly toppled the Affordable Care Act. Yet courts apply severability reflexively, never demanding justification for its destructive treatment. Scholars, meanwhile, assiduously debate the particulars of the severability rules without questioning whether those rules should apply in the first place. This Article, insisting that severability justify its prominent position among the tools of statutory construction, concludes that it should be abolished. Courts should replace it with a fundamentally broader inquiry into, first, the constructions of a constitutionally defective statute that would diffuse its constitutional defects, and, second, which among these options the legislature would prefer. In making the case that the severability framework should be retired and replaced, this Article proceeds in three parts. Part I situates the severability framework in contemporary case law and the scholarly literature. In so doing, it reveals that this framework tends to enjoy the unquestioning acceptance of both courts and scholars, who, at best, cite vague and undertheorized principles of judicial restraint in support. Part II explores the constraining effect that severability has on the courts and the statutes they are charged with construing. On the judicial branch, severability imposes a restrictive structure that prohibits courts from relying on a host of otherwise permissible approaches to statutory construction. On the legislature’s work, it imposes a disruptive regime that generates doctrinal confusion and stifles legislative intent. Part III insists that this aggressive regime justify its existence and effects. Concluding that it cannot, this Article closes with a proposal for reform. The proposed regime would ensure greater fidelity to legislative intent by removing severability’s artificial constraints and, in so doing, avoid its destructive effects

The Nudging Ballot? A Response to Professor Foley

In a response to Professor Edward Foley\u27s The Speaking Ballot: A New Way to Foster Equality of Campaign Discourse [89 N.Y.U. L. Rev. Online 52 (2014)], Professor Manheim notes that the speaking ballot may, in fact, affect elections, that influence may be due less to a flourishing of informed and reasoned debate and more to the exploitation of subtle forms of voter manipulation. She raises questions about the decisions faced by election officials on candidate photographs and videos and timing of updated videos. She concludes: In short, Professor Foley, through his call for the facilitation, rather than the limitation, of campaign-related speech, advances a powerful insight. And by combining the ballot with digital technology, he very well may have identified the rarest of creatures: a potentially effective and constitutionally permissible counterweight to other forms of campaign-related speech. The reform-minded nevertheless should tread carefully

Cracks in the Foundation

This essay is part of a symposium on Richard L. Hasen’s book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (2020). It discusses how intentional voter suppression runs contrary to a universalist conception of voting and exacerbates the other major threats facing American elections

Tactical Opportunities, Risk Attitude and Choice of Farming Strategy: an Application of the Distribution Method

When assessing farming strategies, it is important to account for the opportunities provided for tactically adjusting to outcomes of risk. The hypothesis that accounting for tactical adjustment is more important than accounting for risk attitude was supported in this study with regard to identifying the optimal drainage recirculation strategy for an irrigated dairy farm. Failing to account for tactical adjustment would lead to a sub‐optimal choice, costing the farmer about A$3 100 in present value terms. In contrast, failing to account for risk aversion would not affect the strategy chosen. The distribution method was found to be well suited to modelling tactical adjustment.Research and Development/Tech Change/Emerging Technologies,

Determinants of Cable Program Diversity [Slides]

Slides from a presentation given at the Media Management and Economics Division, Association for Education in Journalism and Mass Communication Annual Convention, San Antonio, Texas on August 10-12, 2005 by Louisa Ha and Lisa Marshall. Second best faculty paper