Voting – THE FINAL 15/05/2010 18:19:00

← 1. Discuss the Constitutional and Voting Rights Act Issues raised by

the law, determine whether such a law is constitutional and whether or not it
complies with the Voting Rights Act.
• Is the law constitutional?
o Disenfranchise convicted felons?
 Richardson v. Ramirez –
 The Court said that section 2 of the 14th
amend, which reduces a state’s representation in
Congress if the state has denied the right to vote
for any reason “except for participation in
rebellion, or other crime,” distinguishes felony
disfranchisement from other forms of voting
restrictions, which must be narrowly tailored to
serve compelling state interests in order to be
constitutional.
 § 2 implicitly approves of felony
disenfranchisement and therefore such a
practice cannot violate § 1
 However, may be deemed violation of 8th amend, - cruel
and unusual punishment, but no court has found that.
 49 state disenfranchise felons to some degree
• VRA issue?
o The Supreme Court has never held the VRA applies to
disenfranchisement of convicted felons, However, section 5 of
the VRA does prohibit any voting qualification that denies
citizens the right to vote in a discriminatory manner.
 “Section 2 of the Act by its unambiguous terms subjects
felony disenfranchisement and all other voting
qualifications to its coverage.” Hayden v. Petaki, 449 F.
3d 305 (2d Cir. 2006), (Sotomayor, J., dissenting).

• Prohibited from serving as Chairperson of the Judiciary Committee?

 o Since there is no fundamental right to serve as a Chairperson
on the legislature’s Judiciary Committee, the state will only
need to show a rational relationship to a legitimate state
interest. The fact that the state doesn’t want convicted
criminals heading the Judiciary committee seems to stand on
its own legs, but could they bar convicted felons from being
elected? Probably not.
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• Closed Primary?
o In Tashjian v. The Republican Party of Connecticut - the
court held the state’s enforcement of a closed primary
infringed on the party’s Freedom of Association. States may
not limit who parties can “associate” with. The court there
found that cost concerns alone were not sufficient reason
enough to abridge the party’s right to association guaranteed
by the 1st and 14th amends.
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← 2. Redistricting Plan
• For a “covered jurisdiction” Section 5 of the Voting Rights Act
imposes a duty to get preclearance when a jurisdiction seeks to
attempt to change “any voting qualification or prerequisite to
voting, or standard, practice, or procedure with respect to voting...”
Any change regarding voting requires preclearance, motivation
does not matter, not precluded from preclearance because you
claim to have good intentions, still must get preclearance. Section
5 has been very broadly interpreted. Allen v. State Board of
Elections decided failure to seek preclearance is subject to private
suit.
o So, they at least have a private action for failure to seek
preclearance.
• The legal standard from Beer v. United States is whether the new
plan has the purpose or the effect of denying or abridging the right
to vote on account of race or color. This Section 5 standard has
been called the "retrogression" standard.
 o In effect, it considers whether a minority group has been
made worse off by a proposed change in voting standards,
practices or procedures, such as a redistricting plan.
 The burden is on the state to prove the plan is non-
retrogressive, and not discriminatory, applies to effect,
not purpose, Reno v. Bossier Parish School Board.
o Does not seem to make the minority’s position any weaker,
maybe stronger because they are less likely to lose the
district with 48%, previously had been 41%. Both districts
should not have any problem in continuing to elect minorities.
There are no facts that present a question of discrimination,
so that does not appear to be an issue
 Reno v. Bossier Parish School Board held that
districts do not need to maximize potential minority
voting strength, cannot deny plans that maintain
minority voting strength.
 Remedies would include injunction against the
implementation of the plan, or to restore the old plan
until a new one can be drawn, or possibly enjoining
near-upcoming elections.
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• Vote Dilution, Section 2 – does not really seem to be a section 2
issue here, usually it involves a plan that packs minority groups into
a single district, usually multi-member, but they really didn’t
change anything here like that. If they eliminated one of the
minority districts and combined the 2 into one, that would be a
section 2 issue, but here that didn’t happen. If there was a section
2 claim the plaintiffs would have to prove 3 things: The minority is
large and compact enough to be a majority, racial voting lines, and
the whites vote as a bloc. Does not seem to be the case here,
seminal case is Thornburg v. Gingles
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← 3. The State Retirement System
 • Largest county has a pop. 10x greater than the smallest
o one person – one vote
 Hadley v. Junior College District:
 “One-person, one-vote” standard applies
whenever persons chosen by popular elections to
“perform governmental functions,” whether or not
those “functions” are general ones

• Only students, parent of students and income tax payers can vote
o Access to Ballot
 Kramer v. Union Free School District:
 The classifications must be drawn narrowly
enough so that the exclusion of the appellant is
necessary to achieve the articulated state goal.
 The classifications permit the inclusion of many
who have at best a remote interesting school
affairs, and excludes others who have a distinct
and direct interest.
 HERE - Means are not sufficiently tailored because
people with an interest (retired government employees)
are not allowed to vote, but individuals with no interest
are allowed to vote (Students not paying income taxes
and parents of students who do not pay income taxes
and are not current or retired state employees

• Approved by a statewide referendum

o The fact that it was approved by a state referendum does not
support its constitutionality.
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← 4. Discuss how the Supreme Court’s decision in Citizens United will
impact the campaign finance system for federal elections
 • First the decision allows corporations to unlimitedly fund “magic
word” advertisements. The ads can now say directly, “vote for
candidate X” where previously, such magic words were banned
from express advocacy ads.
• Second, the decision eliminated the McCain-Feingold ban on
advertisements 30 days before a primary and sixty before a general
election. Timing of ads is no longer limited.
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• What this means for the future?
o More money - The biggest change will probably be the
among of money spent in future elections. Should continue
to rise significantly, although the amount of money spent on
elections has probably risen every cycle ever. The question is
how much more will be spent in 2010 as opposed to 2008.
 Although, the decision could have some positive results.
Could lead to greater support for challengers, especially
against powerful incumbents with deep war chests
 Could also weaken parties, and their leaders, who
control candidates through party support and financing.
 with the rise of big media, and the national news
organizations like the New York Times, Fox News, CNN,
NBC, etc., corporations are already deep in politics, and
deep in elections. Instead of buying 30 second spots in
between sitcoms and reality shows, corporations can
control the “news” and say anything they want about
candidates 24/7. Welcome to the Spin-Zone.
o My opinion, it barely changed anything when you really think
about it . Campaign finance reform is a double-edged sword.
Although it seems like a great idea to regulate campaign
spending, the issue strikes at the heart of the first
amendment. When the question is to let all speak or some
speak, or let some speak when and where we say, I have to
side with let all speak. Whether you agree with it or not,
today, money is speech.
 Also, the “magic words” ban was dumb and ineffective.
 o A congressional ban on foreign, and multi-national corps
seems likely.
o Perhaps this will lead to more or enforced
transparency/disclosure in election financing, which
would be a good thing.
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5. State Limits on Campaign Contributions
• General Constitutional Principals
o Contributions may be limited in dollar amount so long as the
limits do not substantially interfere with an individual’s right
to run an competitive election campaign
o Expenditures by candidates and candidate’s campaign funds
may not be limited at all
• Contribution Limit of $100:
o Freedom of Expression
o Buckley v. Valeo; Randall v. Sorrell:
 Apply strict scrutiny to contribution limits
 Only on the unusual case where limits are so low that
they make it extremely hard for a challenger to
mount a serious challenge against an incumbent
will the contribution limits be struck down
 Violates First Amendment; must not “magnify the
advantages of incumbency”
• Candidate Spending Limits:
o Expenditure limits unconstitutional under Buckley
o Randall court rejected VT’s new rational of preventing
candidates from spending too much time raising money
o Candidates have First Amendment right to speak, money is
speech - Buckley
o Includes personal family funds and expenditures from
individuals acting independent of the candidate
• Expenditure Limits by PACs and Corporations:
o Limits on campaign expenditures are flatly unconstitutional
 Citizens United
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← 6. Discuss the views of Section 2 of the Voting Rights Act espoused by
the Current Supreme Court Justices.
• Section 2 of the Voting Rights Act prohibits any state or political
subdivision from imposing any voting qualification, standard,
practice or procedure that results in the denial or abridgment of any
U.S. citizen’s right to vote on account of race, color or status as a
member of a language minority group.
o Section 2 cases usually involve claims that the political
process was not equally available to minorities because of the
use of:
 multimember districts,
 packing minorities into a single district, or
 fracturing minorities into several districts to break up
the voting bloc.
• Vote dilution occurs when an electoral districting body unlawfully
weakens a minority group’s ability to elect a chosen candidate by
creating a large, majority-dominated district.
o To remedy vote dilution, legislatures may create “majority–
minority” districts, where the protected minority group
constitutes a majority of the population within the new
district.
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• Gingles established the doctrinal framework for vote dilution claims
in multimember districts. To prevail on a Section 2 claim, the
minority petitioner must meet three doctrinal requirements:
• (1) they must demonstrate that their minority group is large
enough and compact enough to constitute a majority if they
were placed in a single member district;
• (2) they must demonstrate that the minority group is politically
cohesive; and
• (3) they must demonstrate that a white majority group votes
together in enough numbers to defeat the minority’s
preferred candidate – Voting Bloc
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• Bartlett v. Strickland –
o The Plurality – Kennedy, Roberts, Alito -
  Section 2 only provides minority groups equal
participation in elections, not the right to form
coalitions with other crossover voters.
 in the absence of a majority–minority district, a
minority group’s ability to elect a preferred candidate is
not inferior to white voters’ ability.
 Section 2 does not impose on districting bodies the duty
to “give minority voters the most potential, or the best
potential, to elect a candidate by attracting crossover
voters”
 Cross-over districts are the result of white voters joining
forces with minority voters to elect their preferred
candidate…we decline to rule that section 2 requires the
cooperation our society has achieved voluntarily.
o Concurrence – Thomas w/ Scalia
 Text of Sec. 2 does not authorize any vote dilution
claims, regardless of the size of the minority population
in a given district.
 The Voting rights act doesn’t say anything about
dilution
• Dilution claims are crazy, by drawing
districts around racial groups, polarizes
electorate, should be more about coalitions,
less about crossovers.
 Concur only in judgment
 Claims of racial gerrymandering are non-judicial
because there are no discernable standards to decide
such claims.
 Would require the court to get delve into race and
politics on a local level for every single case that
raised the issue.
 Holder v. Hall
 “Only a ‘voting qualification or prerequisite to
voting, or standard, practice, or procedure’ can be
challenged under § 2” – NOT DILUTION
 Only requires access to the ballot, nothing else.
 o Dissent –Souter, Stevens, Ginsburg and Breyer
 A district may be a minority-opportunity district so long
as a cohesive minority population is large enough to
elect its chosen candidate when combined with a
reliable number of crossover voters from an otherwise
polarized majority
 Section doesn’t merely protect the voters in the ballot
box, but also to claim a fair number of districts in which
their votes can be effective.
 About outcomes, goals.
 Large and compact is a factor of the test – to achieve a
goal, the election
 Don’t need to worry about the factors if the outcome is
ok
 If the crossover works, that’s fine, no problem
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← 7. Access to the Ballot for 3rd and Independent Candidates
• Any election laws will impose some burden, such as the time of the
election close may impose a burden on people who cannot leave
their job before that time. The question is whether the burden is
reasonable.
• No fundamental right to be a candidate
o Age requirements are rational, 9 year olds shouldn’t run
o Residency is rational
o Cannot violate any other constitutional rights, such as the
right to interstate migration, would be strictly scrutinized.
• States may require significant amount of community support to be
put on the ballot – signatures
o 50k would seem reasonable for a state the size of Illinois, but
not for a state like Maine, it would seem unreasonable.
o 100 signatures from all counties seems pretty reasonable for
a statewide race like Governor, even in sates with small
populations.
• Cannot be so strict that minority parties and independent
candidates have no chance of getting on the ballot
o William v. Rhodes – held Ohio’s law unconstitutional because
it gave large advantage to the established parties, and a
heavy burden to new parties, and the state could not show
any compelling interest to justify the burdens.
 15% of the # of votes cast in the prior governor
election
 Elaborate party structure
 And had to conduct primaries
 Impaired right of association and right to cast votes
effectively
o Other end of the spectrum
 Jenness v. Fortson – upheld Georgia’s requirement that
independent candidates secure supporting signatures
amounting to five percent of the total registers voters in
the last election for filling the office sought by the
candidate.
 Munro v. Socialist Workers Party
 States may condition access to the general election
ballot by a minor party or independent candidate upon
a showing of a modicum of support among the
potential voters for the office.
o Burdick v. Takushi (US Supreme 1992)
 Issue – Whether Hawaii’s prohibition on write-in voting
unreasonably infringes upon its citizens’ rights under
the 1st and 14th Amendments.
 Not Strict scrutiny. Right to vote is not absolute, Art. 1,
Sec. 4, Cl. 1, States proscribe the time place and
manner. Any election laws will impose some burden,
such as the time of the election close may impose a
burden on people who cannot leave their job before that
time.
o Time limit – must file 8 months prior to the general election,
which is one month after the primary.
 Seems pretty reasonable, can’t have people registering
right before the election, could confuse the voters and
must give the state time to make the ballots, etc.
 Even allows a person to lose the primary for another
party and still be allowed to run as an independent.
• Dems and Repubs only need 5,000 signatures
o That is a red flag
o
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← Is the law restricting the right to vote?
• If so – strict scrutiny
• Otherwise rational relationship legitimate state interest
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