Explore the vast range of titles available.

Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect This Article argues that the courts, in partnership with the Department of Justice, could reform section 2 so that it fills much of the gap left by the Supreme Courts evisceration of section 5. The proposed reformation of section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in section 2 cases; and second, that the courts have authority to regularize section 2 adjudication by creating rebuttable presumptions. Most section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases—each relying on data from a different set of elections—are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of section 2 litigation. This approach would also reduce the dependence of vote dilution claims on often-unreliable techniques of ecological inference and would make coalitional claims brought jointly by two or more minority groups much easier to litigate.

According to the U.S. Supreme Court, the right to vote is fundamental because it is preservative cf all rights, and yet in many cases legal protections for the right to vote fall short cfprotections for the other rights that voting is meant to preserve. Rede fining the right to vote cannot solve this problem alone. Election administration has at least as much consequence on the right to vote as any particular definition or legal theory. In Democracy's Bureaucracy, Michael Morse draws our attention to one cf the most important yet understudied issues cfelection administration: voter list maintenance. In addition to his descriptive account cf the novel way states have cooperated to perform list maintenance, Morse's analysis provides a window into three pathologies cf America's election administration more generally. First, the mechanics cf elections directly implicate the fundamental right to vote, raising questions cf how stringently these procedures should be evaluated by courts. Second, political interference in the administration cf elections can flip representative government on its head by insulating elected Officials from political accountability and making elections less secure. Finally, several challenges related to the administration cf elections are rooted in our electoral system that narrowly links geography and political representation. Relaxing this link may foster a more erfective, responsible, and inclusive system cf government.

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This Article proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and who vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that the racial-stereotyping, polarized-voting, and population-size criteria would yield similar patterns of coverage, at least with respect to African Americans, and we show, ironically, that the new pattern of coverage would coincide with historic coverage under the \"outdated\" formula invalidated by Shelby County. Recently developed statistical techniques permit the new coverage formula to be further refined based on estimates of racial stereotyping within substate geographic units, such as cities and counties. We suggest that Congress establish default rules for coverage based on our state-level results, and delegate authority to make substate coverage determinations to an administrative agency (along with other responsibilities for keeping the coverage formula up to date). Finally, we show that if Congress does not act, the courts could use our results to reestablish coverage in a number of states, entering much broader \"bail in\" remedies for constitutional violations than would otherwise be justified.

A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decisionmaking and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court precedent since South Dakota v. Dole, must be clearly articulated in advance, related to the underlying purpose of the federal funds, and not deemed coercive by the courts. The Attorney General recently announced conditions on federal law enforcement grants that would defund police departments who do not cooperate with federal immigration officials. These new funding conditions triggered legal challenges by a dozen jurisdictions under the Spending Clause. While the case law is clear that Congress may delegate its authority to add conditions on federal grants, two important questions remain unresolved: (1) does the authority to add conditions on spending inherently attach to delegations to implement federal grant programs or must that authority be delegated separately and unambiguously? and (2) are executive conditions subject to the same standards of clarity, germaneness, and non-coercion ? Recent threats by President Trump to withhold funding for elections, education, and public parks amplify the need for clarity on these questions. In this Article, I argue that executive conditions on federal spending are unquestionably appropriate, but only when Congress has unambiguously delegated the authority to add conditions. This delegation should not act as a loophole in the Dole doctrine. In fact, because the central constitutional concern in Spending Clause cases is the undue aggrandizement of federal power at the (literal) expense of the states, I argue that executive conditions on federal spending should be subject to stricter limits than conditions imposed by Congress; inter-branch coordination poses a greater threat to state sovereignty than either Congress or the Executive acting alone. The upshot of stricter executive limits is that conditions on federal spending will likely shift away from the Executive to Congress, which may be desirable on accountability grounds. Finally, the recent appointment ofJustices Gorsuch and Kavanaugh to the Supreme Court have raised the stakes of this particular debate. Both of the new Justices have publicly articulated concerns about expanding federal power and federal administrative power in particular. The question of sua sponte executive conditions on federal grants-in-aid thus poses a ripe opportunity for skeptics of the administrative state to rein in the regulatory state while also narrowing the scope of the Spending Clause more generally.

Abstract Traditional approaches for documenting the harm of gerrymandering emphasize collective representation by legislatures, minimizing the relationship between individual voters and their respective representatives. Federal courts have struggled to map collective accounts onto cognizable constitutional harms, reflecting a discomfort evaluating a system of representation inescapably rooted in geographic districts using diagnostics that treat districts and their boundaries as an inconvenience rather than an intrinsic feature. A normative account of representation and accountability rooted in the dyadic relationship between voters and their legislators addresses the exact harms that courts have articulated yet struggled to substantiate. We derive a formal model of dyadic representation that yields a measure of disparities among different voters, including those divided by partisanship. We then compare enacted plans in four states against two million simulated counterfactuals, demonstrating how conclusions about the harms from gerrymandering may be highly sensitive to political factors such as polarization and officeholder motivation.

A recent spate of election laws tightened registration rules, reduced convenient voting opportunities, and required voters to show specific types of identification in order to vote. Because these laws make voting more difficult, critics have analogized them to Jim Crow Era voter suppression laws. We challenge the analogy that current restrictive voting laws are a reincarnation of Jim Crow Era voter suppression. While there are some notable similarities, the analogy obscures a more apt comparison to a different form of voter suppression-one that operates to effectively disfranchise an entire class of people, just as the old form did for African Americans. This form of suppression excludes the poor. To account for the effective disfranchisement of the poor, we develop a more robust theory of voting than currently exists in the legal literature. Drawing on rational choice and sociological theories of voting, we show how information, affiliation with formal organizations, and integration into social networks of politically active individuals are far more important to the decision to vote than the tangible costs of voting associated with the new voter suppression. Using this expanded account of voting, we identify the role of political parties and their mobilization activities in the effective disfranchisement of the poor. Relying on the same proprietary data as the Obama campaign in 2008 and 2012 (and hundreds of campaigns since), along with other public sources of data, we show how campaigns employ a \"calculus of contact\" to decide whom to mobilize. That calculus leads campaigns to disproportionately neglect the poor when canvassing, calling, and sending political mailers to potential voters-mobilization activities that have a sizeable turnout effect. In our view, the most significant voter suppression tactics of the twenty-first century are therefore not what legislatures are doing, but what campaigns are not doing. We argue that a first step in combating this passive voter suppression should involve changing the information environment of campaigns: the amount and type of information about potential voters that the state makes available to campaigns. Such a change could force campaigns to adjust their calculus of contact and contact more low-income people during election season. Including the poor as targets of campaign mobilization would be an important first step toward a more egalitarian democracy.

Super PACs are relative newcomers to American politics. Unlike most participants in federal elections, super PACs can make independent expenditures using funds raised in unlimited amounts from individuals as well as corporations, labor unions, and other organizations. Using a new dataset, we compare the financing of super PACs to the financing of traditional PACs and we identify the economic and political sectors most prevalent among super PACs and their donors. Our findings demonstrate that with important exceptions, economic or political associations typically have a positive impact on the likelihood an individual or organizational donor will contribute to a super PAC and the amount of the contribution. However, business donors reserve their largest contributions for non-business super PACs, and party-connected and ideological donors routinely support super PACs in either sector. The results indicate that the relationships between super PACs and their contributors are more complex than previously understood.

Congress routinely relies on private lawsuits to enforce its mandates. In this article, we investigate whether, when it does so, the details of the legislation can importantly influence the extent to which the private bar is mobilized to carry out the prosecutorial function. Using an original and novel data set based on review of archived litigation documents for cases filed in the Northern and Eastern Districts of California over the two decades spanning 1981–2000, we examine the effects of the Civil Rights Act of 1991, which increased economic damages available to Title VII job discrimination plaintiffs, on their ability to secure counsel. We find that over the course of the decade after passage, the law substantially increased the probability that Title VII plaintiffs would be represented by counsel and that in doing so it reversed a decade-long trend in the opposite direction.

The health of American democracy has literally been challenged. The global pandemic has powerfully exposed a long-standing truth: electoral policies that are frequently referred to as \"convenience voting\" are really a mode of \"survival voting\" for millions of Americans. As our data show, racial minorities are overrepresented among voters whose health is most vulnerable, and politicians have leveraged these health disparities to subordinate the political voice of racial minorities. To date, data about racial disparities in health has played a very limited role in assessing voting rights. A new health lens on the racial impacts of voting rules would beneficially inform-and perhaps even fundamentally alter-how we address several common voting rights issues. A new focus on the disparate health effects of voting rules, grounded in the kind of solid empirical evidence we provide, could reinvigorate the Voting Rights Act (VRA) by providing new avenues for assessing voting rights, for litigating and judging voter suppression claims under section 2, and even informing a new coverage formula in a modified section 5. This evidence arrives at a critical juncture for the VRA which has been stripped of much of its bite by the Supreme Court and is currently being debated in Congress. The clear and compelling story told by our data are a clarion call to legislators, courts, and litigators to reconceptualize and strengthen voting rights by accounting for the barriers that health disparities pose to minority access to the ballot.