CHAPTER 1: AN INTRODUCTION TO THE SELECTION OF DEMOCRATIC INSTITUTIONS 1
Lucas v. the 44th Gen. Assembly of the State of Colorado 1964 6 to 3 Warren 3
Supreme Court adopts the principle of one person, one vote, invalidating districts giving rural voters more voice.
CHAPTER 2: THE RIGHT TO PARTICIPATE 16
A. Constitutional Text 20
Minor v. Happersett 1875 Waite 21
Overruled by the 19th Amendment. It is here as a good example of Constitutional interpretation.
Richardson v. Ramirez 1974 Rehnquist 38
Ex-felons can be denied the right to vote by the states.
B. The Modern Constitutional Framework 46
Lassiter v. Northampton County Board of Elections 1959 Rational Basis Test: Passed Douglas 46
An elections board can require that voters be literate, even in view of the 14th and 17th amendments.
This differed from Davis v Schnell in that Davis required the person to understand and explain an article of the federal
constitution, which makes it too easy for the registrar to say that similar explanations are valid for one person, and not
valid for another. The court said that the statute on its face does not indicate race. As such, it only needed to pass the
rational basis test. It seems odd that race (and therefore strict scritiny) wasn't implicated, given the era.
Harper v. Virginia Board of Elections 1966 Rational Basis Test: Failed Douglas 48
Poll taxes are unconstitutional forms of discrimination against the poor. Start of making voting a fundamental right.
3 justices felt this did meet the rational basis test
Kramer v. Union Free School District No. 15 1969 5 to 4 Strict Scrutiny Test: Failed Warren 52
School districts cannot limit voters in school board elections to property owners and parents of schoolchildren.
C. Constitutional Structure as a Limitation on the Right to Vote 72
Igartua De La Rosa v. United States 2000 per curium 74
Only citizens empowered by a state are allowed to vote in presidential elections.
Puerto Rico is not a state, so although they are US Citizens, they do not have the right to vote in federal elections.
Adams v. Clinton App. Court 77
23rd Amendment gave Wash-DC residents right to vote for President, but they still have no voting rep in Congress.
This was a challenge to this. The court said that if they want to do this, they will need to amend the US Constitution.
D. The Struggle for Black Enfranchisement 90
Giles v. Harris 1903 6 to 3 Holmes 91
Black citizens in Montgomery Alabama were denied the right to register to vote. The court said that this is a political issue
for the legislature, and that the Court can’t make a decision which they can’t enforce. (Changed in Brown v Board of Education)
1 Techniques for Outright Disenfranchisement 101
2 The White Primary Cases 103
Nixon v. Herndon 1927 Holmes 103
Nixon was denied right to vote in the Texan Dem. primary. This disenfranchised him, as only Dems win in TX.
Court decided the TX election rules delegated state authority to political parties, so that is in effect still state action.
Smith v. Allwright 1944 Reed 105
Primaries are essential for determining who will be elected, and so interference with this is interference in the voting process
Terry v. Adams 1953 8 to 1 15th Amendment Black 108
The Jaybirds had a primary prior to the Democratic Primary, but blacks were not allowed to be vote in the Jaybird primary.
Jaybird primary was private action, but since it determines the outcome of elections, it is considered to be public action.
3 The Demise of Discretion 117
4 Redrawing District Boundaries 125
Gomillion v. Lightfoot 1960 Frankfurter 125
If the primary purpose of the redistricting is to deprive black voters of a pre-existing right to vote within the city,
it is unconstitutional under the 15th amendment.
If π establishes prima facia disrim case; the state or decisionmaking body must then show lack of racial intent behind decision.
E. Voter Registration and Participation 129
CHAPTER 3: THE REAPPORTIONMENT REVOLUTION 141
Reynolds v. Sims 1964 Warren 162
One person, one vote. This means that voting districts need to have as near the same number of people as possible.
CHAPTER 4: WHEN ELECTIONS GO BAD - The 2000 Presidential Election in Legal Context 217
A. The Federal Interest in Election Procedures 221
1 State Elections 222
a. Lack of Sufficient Federal Interest 223
b. Sufficient Federal Interests 225
Roe v. Alabama (Roe I) 1995 14th Amendment App. Court 226
An AL court changed the rules after an election, changing the result. The 11th Circuit overturned the election on the ground
that changes in election rules, after the election is complete, violates the rights of legitimate voters.
2 Distinct Federal Interest in National Elections: U.S. House and Senate Elections 239
3 Distinct Federal Interests in National Elections: Presidential Elections 242
a. The Electoral College 242
b. Art. II and the Role of State Legislatures 244
c. The Electoral Count Act of 1887 245
B. The State Interest in Federal Elections 246
Palm Beach County Canvassing Board v. Harris 2000 FL S.Court 249
Statutory construction interpretation in Bush v Gore.
C. The Federal Interest Potentially Asserted 262
Bush v. Palm Beach County Canvassing Board (Bush I) 2000 per curium 262
The US Supreme Court took issue with the fact that the FL Supreme Court based their decision on the FL State Constitution.
1 Art. II and "The Independent State Legislature Doctrine" 267
McPherson v. Blacker 1892 Fuller 267
Michigan system of selecting electors was challenged. The decision was that the Michigan state legislature had a system of
choosing electors, since there wasn’t anything at issue violating the grant given by the US Constitution, it looked fine to them.
2 Of "Safe Harbors" and the Electoral Count Act 276
3 The Final Florida Court Decision and the United States Supreme Court Stay 278
Bush v. Gore (stay) 2000 5 to 4 Scalia 279
Court decided to hear the case on the basis of irreparable potential harm to Bush
D. The Federal Interest Decisively Asserted 281
Bush v. Gore 2000 5 to 4 Article II, 14th Amendment Scalia 281
Court decided that the FL Supreme Court impermissably changed the election laws.
E. Eight Views of the Cathedral 315
F. The Timing of Federal Court Intervention into Electoral and Similar Litigation 323
Growe v. Emison 1993 Scalia 324
Federal courts should show comity to state courts in election/redistricting disputes
Siegel v. LePore 2000 1st & 14th Amendments Dist. Court 333
As there was no constitutional issue, the court would not step in and halt the recounts
CHAPTER 5: THE ROLE OF POLITICAL PARTIES 345
A. The Ballot: Political Parties as Gatekeepers 348
1 Restrictions on Whom Voters Can Vote For 352
Burdick v. Takushi 1992 6 to 3 Intermediate Scrutiny Test: Passed White 352
States can choose to not allow write in votes if they have a rational basis for the decision.
Hawaii's lax ballot access restrictions kept this from being a Strict Scrutiny review.
2 Restrictions on Who Appears on the Ballot 362
Bullock v. Carter 1972 14th Am. Closely Scrutinized' Rational Basis Test: Failed Burger 363
There is no fundamental right to run as a candidate for elective public office
However, as candidates' and voters' rights are inextricably bound, they do have standing to assert voters' const. rights
Since the state did not justify the need for the filing fees, they held it violated equal protection of the laws.
B. Who Can Participate in a Party's Activities? 373
1 Both the Party and the State Seek to Exclude Citizen X from Participating 374
Nader v. Schaffer 1976 Association Strict Scrutiny Test: Passed USSC Aff'd 374
Political parties can restrict their primaries to member-only primaries.
Of course, per Nixon v Herndon excluding people who want to be in the party is nigh impossible.
Duke v. Massey 1996 1st Amendment - Freedom of Association App. Court 379
Political parties can take names off of their primary ballot.
States not allowed to save parties from themselves (can’t regulate leadership to protect rank and file).
Republican Party of Texas v. Dietz 1997 TX Supr Ct 382
Exclusion of Log Cabin Republican booth. Internal party affairs are not state action, nor are party platforms.
The idea of parties as public is in tension with the need to assure that they maintain basic autonomy from the state.
2 The Party Seeks to Exclude Citizen X from Participating but the State Demands that the Party Permit Him to Participate 386
Democratic Party of the United States v. LaFollette 1981 6 to 3 Association Strict Scrutiny Test: Passed & Failed Stewart 386
Wisconsin can indeed have an open primary, but the national party can disregard the results.
California Democratic Party v. Jones 2000 Association Strict Scrutiny Test: Failed Scalia 391
Enforced blanket primaries are unconstitutional, as it limits the party’s right to associate
Not narrowly tailored to meet state's interests
3 The Party Wishes to Permit Citizen X to Participate but the State Demands His Exclusion 404
Tashjian v. Republican Party of Connecticut 1986 1st Amendment - Freedom of Association Marshall 404
Political parties can open their primaries to all eligible voters, the state cannot prevent this.
C. When Can the Government Regulate a Party's Internal Affairs? 410
Eu v. San Francisco County Democratic Central Committee 1989 Strict
1st Amendment Scrutiny Test: Failed Marshall 411
This was an attempt to wrest control from central party leadership and give it to the party members
A state cannot justify regulating a party’s internal affairs without showing that such regulation is necessary to ensure
the elections are orderly and fair. Undue restrictions on internal party structure violate free speech & association.
D. Does the Existing Legal Regime Improperly Entrench the Existing Two-Party System? 417
1 Challenges to Ballot Access by Independent and Third-Party Candidates 418
Munro v. Socialist Workers Party 1986 Flexible Scrutiny Test: Passed White 422
States can prevent small parties (<1% in primary) access to the ballot.
Interpretted as states right to limit the ballot. The easy ballot access laws allowed the use of the flexible standard.
2 The Interaction of Ballot Access and Other Electoral Regulations In Perpetuating the Two-Party System 427
Timmons v. Twin Cities Area New Party 1997 Flexible Scrutiny Test: Passed Rehnquist 427
Court upheld Minnesota's anti-fusion law. Was not a substantial burden on access to the ballot.
Not allowing the second nominating party to appear on ballot is not a significant infringement on right to associate.
3 The Interaction of Access to the Electoral Arena and the Perpetuation of the Two-Party System 436
Arkansas Educational Television Commission v. Forbes 1998 6 to 3 Speech Rational Basis Test: Passed Kennedy 436
Public TV debate to be a nonpublic forum and that the exclusion of a candidate on the grounds he had little or no
chance of winning was a viewpoint neutral decision consistent with the First Amendment.
CHAPTER 6: MONEY AND POLITICS 449
A. The First Amendment Background 450
B. Policy Considerations 456
C. Buckley v. Valeo 457
Government imposed limits on contributions are acceptable
Government imposed limits on expenditures are not acceptable
D. Contribution Limits 460
Nixon v. Shrink Missouri Government PAC 2000 6 to 3 1st & 14th Amendments Souter 460
States can regulate contributions to political parties, and need not peg the $ value to Buckley .
E. Expenditure Limits 474
Co. Republican Federal Campaign Committee v. FEC 1996 7 to 2 Breyer 474
Independent expenditures by political parties are protected by the first amendment.
FEC v. Co. Republican Federal Campaign Committee 2001 5 to 4 Souter 487
Expenditures by a political party that are done in coordination with a candidate’s campaign are not allowable.
Expenditures done by a political party that are done independently are acceptable.
F. Do Concerns over Corruption Justify Campaign Finance Regulations? 499
First National Bank of Boston v. Bellotti 1978 5 to 4 Powell 499
Corporations have a right to spend money to fight legislation outside their immediate core business interests
G. Equality and Liberty in Political Campaigns 513
Austin v. Michigan Chamber of Commerce 1990 1st & 14th Amendments Marshall 515
States may forbid corporations to spend money on political matters if it is not from a segregated fund.
H. Has Campaign Finance Regulation Worked? 524
I. A Caution on Public Financing 526
J. Proposals for Reform 527
Daggett v. Commission on Governmental Ethics and Election Practices 1st Amendment App. Court 529
π: Maine’s public finance law is so beneficial to those taking it that it is essentially coercive (& therefore non-voluntary).
Ct: If candidates accept more restrictions than Buckley, it seems legal, and there were significant downfalls to it as well.
Court determined it was non-coercive and voluntary, so no issue.
K. The New Frontier: Issue Advocacy 533
CHAPTER 7: PRECLEARANCE AND THE VOTING RIGHTS ACT 546
A. Congressional Power to Enact the Special Provisions of the Voting Rights Act 548
B. What is a "Covered Change"? 571
Beer v United States, 425 U.S. 130 1976 N/A
For areas requiring preclearance of redistricting plans under the Voting Rights Act, any plan that was less likely to elect
a minority candidate than the previously approved plan could be rejected as a retrogression of the minority position.
C. What Constitutes a Discriminatory Purpose or Effect? 598
1 The Discriminatory "Effect" and the Concept of Retrogression 599
CHAPTER 8: Majority Rule & Minority Vote Dilution
City of Mobile v. Bolden 1980 692
There is no constitutional right to proportional representation.
CHAPTER 9: RACIAL VOTE DILUTION UNDER THE VOTING RIGHTS ACT 746
Thornburg v. Gingles 1986 748
Voting districts cannot be drawn to dilute the minority vote within the district in a discriminatory fashion.
CHAPTER 10: REDISTRICTING AND REPRESENTATION 867
Gaffney v. Cummings 1973 869
Voting districts can be drawn to attempt to achieve a “rough sort of proportional representation in the legislative halls of the State”.
Shaw v. Reno 1993 897
Voting districts cannot be drawn for the main purpose of enhancing the minority vote.
Hunt v. Cromartie 2001 946
Race can be a factor in redistricting, as long as it is not the controlling factor.
(In Easley the primary factor was redistricting for political reasons, which is not a violation of the equal protection clause.)
CHAPTER 11: DIRECT DEMOCRACY 982
A. Constitutional Underpinnings and Concerns 983
Pacific States Telephone & Telegraph Company v. Oregon1912 White 985
Courts cannot deny states the right to enact direct democracy measures (no jurisdiction).
B. Direct Democracy and Rights of Political Participation 993
1 Popular Lawmaking and Unpopular Groups 993
Hunter v. Erickson 1968 Strict
14th AmendmentScrutiny Test: Failed White 993
Akron amended city charter, through referendum, to prevent any fair housing ordinance unless approved by city voters.
This violated equal protection, as it places special burdens on minorities within the government process (requires an extra step)
Evans v. Romer 1996 Rational Basis Test: Failed 1001
Co. Const. was amended to prevent passage of anti-discrimination laws that protect homosexual orientation.
This violated equal protection, as it places special burdens on minorities within the government process (requires an extra step)
2 Popular Lawmaking and Problems of Entrenchment 1011
U.S. Term Limits v. Thornton 1995 5 to 4 Stevens 1011
If a candidate had 3 terms in the House, or 2 terms in the Senate, they could no be printed on the ballot (although it could be written in).
The court said constitution sets up uniform national system, such a change would require a Constitutional Amendment.
Cook v. Gralike 2001 5 supp Stevens 1026
Mo. Attempt to put "disregarded … term limits" on the ballot after candidates name if they ran too many times.
Regulation authorized by Constitution's Elections Clause grants power to states over procedural regulations for elections but
not power to influence elections.
CHAPTER 13: ALTERNATIVE DEMOCRATIC STRUCTURES 1089
A. Types of Electoral Systems 1094
B. Cumulative Voting 1099
Dillard v. Chilton County Board of Education and Chilton County Commission Dist Court 1102
Court decided a cumulative voting system was an acceptable solution for a VRA violation.
Richard H. Pildes and Kristen A. Donoghue, Cumulative Voting in the United States 1106
McCoy v. Chicago Heights 1998 Dist Court 1116
Judge came up with a plan different from what either party wanted (see Harper v Chicago Heights ).
Harper v. Chicago Heights 2000 App. Court 1121
original court decision was incorrect as the court had not gone through the entire list of options before coming up with their result.
Cane v. Worcester County Md. 1995 Dist Court 1124
Court imposed districted cumulative voting plan after VRA violation where acceptable plan had not been generated.
C. Preference Voting or the Single Transferable Vote 1132
Richard Briffault: Lani Guinier and the Dilemmas of American Democracy 1133
D. Limited Voting
McGhee v. Granville County Board of Commissioners 1988 App. Court 1143
With §2VRA violations, a court should give the appropriate legislative body the first opportunity to devise the remedial plan.
E. The Lot Versus the Election 1151
F. The History of Territorial Districting 1156
G. Debate between Majoritarian Systems & Proportional Representation 1160
H. Consociational Democracy 1168
Historically, items that impair a fundamental right, the strict scrutiny test is used.
All other laws, which do not impair such rights, need to pass a rational basis test.
The third test, which is almost exclusively used for sex discrimination tests, are the “intermediate basis” test,
because the 14th amendment does not mean that women are fundamentally equal per the Constitution.
On voting questions, where discrimination is not an issue, and the burden is light, an "intermediate scrutiny" test
The court has said that it is the party though, and not the state, that makes the call of whether it is "light" (really,
Note, which standard they choose is in many ways due to the advocacy of the lawyers before them.