ELECTION LAW/LAW OF THE POLITICAL PROCESS

Professor Rick Hasen

Office: ____

Office Hours: Tuesdays and Thursdays: 4:20 pm-5 pm

(or by appointment)

COURSE DESCRIPTION AND SYLLABUS

Introduction 

This course considers ways in which the law governing the political process affects and reflects political power relationships. Topics covered will include at least some of the following: campaign finance, the right to vote, Bush v. Gore, reapportionment, political parties, and ballot propositions. No background in politics or political science is required. Students who have taken the Election Law seminar are ineligible to take this course.

Required Course Materials 

1. Daniel Hays Lowenstein and Richard L. Hasen, Election Law—Cases and Materials (3d ed. 2004) (Lowenstein & Hasen)

2. Richard L. Hasen, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) (Hasen)

3. Handout (available from _____) (Handout)

4. Additional materials I will provide in class during the semester

Course Requirements

Your course grade will be determined primarily based upon your performance on a closed-book, closed note final examination.  I also reserve the right to adjust your grade up or down one increment (e.g., changing a B to a B+ or B-) based upon participation. Although I expect you to be prepared to participate in class each day, I will assign you certain weeks to be “on call” and extra-prepared to participate in class discussion. You may switch dates with another student if you notify me in advance. Students who fail to participate in class when “on call” run a serious risk of a downgrade for participation

Syllabus, Part I  (Subject to Revision) 
 
I.          Voting and Representation: The Warren Court’s Equal Protection Legacy
A.        The Right to Vote: Age, Residency, Citizenship, Non-felon status
 Reading:            Lowenstein & Hasen, 72-80, 43-50; Hasen 1-13

B.         Other Voter Qualifications 

Reading:  Hasen, 36 (middle)-39 (top), 25 (middle)-27 (top), 177-88, Handout 1-21 (Harper v. Virginia Board of Elections, Holt Civic Club v. City of Tuscaloosa) 

C.        The Right to An Equally Weighted Vote (and its Narrow Exceptions)

Reading:            Hasen, 21-25 (middle); Lowenstein and Hasen, 80 (bottom)-116

II.         Bush v. Gore, Equal Protection, and the Counting of Votes
Reading:            Lowenstein & Hasen, 116 (bottom)-140; Hasen, 41 (middle) - 46 (middle); Handout 22-33 (Complaint, Schering v. Blackwell: Sixth Circuit opinions and Justice Stevens’ order in Ohio registration cases)

III.            Introduction to Legislative Districting

Reading:            pp. 141- 152

IV.            Minority Vote Dilution

A.        Section 5 of the Voting Rights Act
Reading:            Lowenstein & Hasen, 153-187; Hasen, 120-33

B.         Section 2 of the Voting Rights Act

Reading:             Lowenstein & Hasen, 187 (bottom) – 244; Handout 34-40 (Metts v. Murphy)


V.            Unconstitutional Racial Gerrymandering

Reading:             Lowenstein & Hasen, 245-316


VI.       Partisan Gerrymandering

Reading:             Lowenstein & Hasen, 317-360; Handout 41-51 (Pildes, Foreword: The Constitutionalization of Democratic Politics); Hasen, 138-56

 
VII.      Ballot Propositions

Reading:             Lowenstein & Hasen, 361-83 (middle), 392 (begin with n.4)-438

VIII.     Major Political Parties

Reading:            Lowenstein & Hasen, 439-43 (top), 457-69, 479-505

IX.       Third Parties and Independent Candidates

Reading:            Lowenstein & Hasen, 533-79; Handout 52-58 (Nader v. Keith)

X.            Campaign Finance Laws and Reform

 
A.            Contribution and Expenditure Limits: The Buckley Framework

Reading:             Lowenstein & Hasen, 717-719, 725 (from n.2)-727 (top), 761-96

 
B.         After Buckley: Who May Be Regulated, and For What Reasons?

Reading:            Lowenstein & Hasen, 797-859

 
C.        The New Deference: Parties, Soft Money, Issue Advocacy and McConnell v. FEC

Reading:            Lowenstein & Hasen, 861-956; Hasen, 108-20


D.             Public Financing Questions

            Reading:            Lowenstein & Hasen, 957-88

E.            Campaign Finance Disclosure

Reading:            Lowenstein & Hasen, 989-1024

XI.       The Future of Election Law

Hasen, 47-72, 157-65; Handout 59-64 (Gerken, Lost in the Political Thicket)

Format Guidance/Requirements:

This should be a policy memorandum for an audience of state legislators, election officials and other stakeholders, not a litigation or scholarly document. Consequently, while you should provide reasoned legal analysis the memo should not read like a litigation brief or a law review article; 

The memorandum should draw examples from and cite existing election law and practice at the federal, state, or local level. Such citations will serve the dual purpose of informing your audience of information relevant to your suggested standard and indicating to me that you did some research. Bluebook citation is not important – what is important is that the reader can find the citation and the source will be at the point of the citation;

Please draft actual language for your standard. It need not be in legislative language, but it should be sufficiently clear that a legislative drafter could use it as the basis for legislation – or a judge could cite it as evidence of a prevailing national standard;

The memorandum should be 10-12 pages (2500-3000 words) exclusive of footnotes – though given that this is a policy memorandum, footnotes shouldn’t be numerous or central to your text.

I’d like everyone to try to choose a topic for their memorandum by our 6thclass (_____) – this doesn’t mean I have to approve the topic; just that I’d like to have an idea of who’s doing what. Note that I can assist with choosing a topic if necessary.

SYLLABU
Week 1

Election Administration 101

ASSIGNMENT:

pp. 1-25 of electionline.org's "Election Preview 2004” http://electionline.org/site/docs/pdf/2004.Election.Preview.Final.Report.Update1.pdf, plus the state entries for Florida (pp.31-32), Ohio (p. 48) and at least one other state of your choice - preferably including any state(s) in which you are or have been registered to vote;

electionline.org's "The 2004 Election" http://electionline.org/site/docs/pdf/ERIP%20Brief9%20Final.pdf

QUESTIONS:

What is/are the purpose(s) of elections in the American system of government?

What should be the goal(s) of election administration?

How can and should the law operate to further these goals?

Week 2

Tension #1: central vs. local authority: the law

ASSIGNMENT:

U.S. Const. Art. I, Sec. 4 – commentary

U.S. Department of Justice, “Voting Section: The Statutes we Enforce”, http://www.usdoj.gov/crt/voting/overview.htm

Shambon, “The Administration of American Elections” pp. 1-26

Carter-Ford Commission report, chapter 2 (millercenter.virginia.edu/programs/natl_commissions/commission_final_report/2_chap_2_pp22-25.pdf )
and chapter 7 (millercenter.virginia.edu/programs/natl_commissions/commission_final_report/4_chap_7_p68-73.pdf )
electionline.org, “Working Together”, http://electionline.org/site/docs/pdf/working.together.pdf
 

QUESTIONS:

Why do you think the American electoral system remains so decentralized? What are the advantages and disadvantages of such a system?

What is the proper role of the federal government in election administration? State governments? Local governments?

Would uniformity be more desirable, and what might the advantages and disadvantages be of a uniform system?

What issues might arise in an effort to alter the roles of federal, state and local governments in the electoral system?

Week 3

Tension #1: central vs. local authority: issues and practice

ASSIGNMENT:

electionline.org, “Roads to Reform”: http://electionline.org/site/docs/pdf/ERIPbrief903.finalrevised.pdf

Shambon, “The Administration of American Elections,” pp. 26-end

Rick Hasen, The California Recall Punch Card Litigation: Why Bush v. Gore Does Not "Suck" (http://ssrn.com/abstract=589001 )

Congressman Jesse Jackson Jr. “The Right to Vote” http://www.house.gov/jackson/VotingAmendment.htm

SKIM to compare –
Arizona 2003 HAVA State Plan, www.azsos.gov/hava/2003/state_plan/HAVA_Arizona_State_Plan.pdf
California 2003 HAVA State Plan http://www.ss.ca.gov/elections/HAVA_finalplan_12-03.pdf
New York 2003 HAVA State Plan, http://www.elections.state.ny.us/hava/draft_plan.pdf

QUESTIONS:

Has HAVA – and more specifically, the effort to add a federal dimension to election administration – been a success? Why or why not?

How much of states’ difficulties with HAVA are a result of the law itself, and how much stem from the delays in its implementation in Washington DC?

Are there alternate means of incorporating a national outlook for elections? What difficulties might arise from attempting to implement them?

Week 4

Tension #2: access vs. integrity: the law

ASSIGNMENT: Section 302 (pp. 42-44) of the Help America Vote Act
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ252.107.pdf
Senate debate on Help America Vote Act, 148 Cong. Rec. S10412
electionline.org, “Voter ID” (http://electionline.org/site/docs/pdf/voter_id_report.pdf)

QUESTIONS:

How are the principles of access and integrity reflected in the voting process? Which is more important?

How did HAVA strike the balance between access and integrity?

What guidance were states given with respect to this balance?

Week 5

Tension #2: access vs. integrity: issues and practice

ASSIGNMENT:

Tova Wang, “Playing Games with Democracy”, http://www.tcf.org/publications/electionreform/voting_game.pdf

Bay County v. Land, et al. http://moritzlaw.osu.edu/electionlaw/docs/michigan/decision.pdf 
Florida Democratic Party v. Hood: http://moritzlaw.osu.edu/electionlaw/docs/florida/hood-order.pdf 
Sandusky County Democratic Party v. Blackwell: http://moritzlaw.osu.edu/electionlaw/docs/sandusky/opinion2.pdf 

QUESTIONS:

Were states’ choices regarding voter identification and provisional voting because, or in spite of, Congressional action under HAVA?

What impact, if any, might courts’ willingness to hear HAVA challenges under section 1983 have on the implementation of the Act? Is this a good thing?

Why is the access/integrity issue usually the basis of charges of partisanship in election administration?

Week 6

Tension #3: fairness vs. administrative certainty: the law

ASSIGNMENT:

Electoral College in practice http://www.archives.gov/federal_register/electoral_college/certificates.html

State post-election certification requirements http://www.electionline.org/site/docs/html/post_election_certification_timetable.htm
Recounts         
http://www.electionline.org/site/docs/html/recount_provisions_-_part_1.htm http://www.electionline.org/site/docs/html/recount_provisions_-_part_2.htm
Recount/contest timetable
http://www.electionline.org/site/docs/html/post-election_recount_-_contest_timetable.htm 
QUESTIONS:

When is an election over? Concession? Certification? Lapse of all contest/recount deadlines?

Should the goal be to count every vote, or is there a? If so, where does this rank with other priorities?

Immediately prior to the 2004 election, Loyola professor Rick Hasen said the following with respect to pre-election challenges: “sometimes it is more important for the law to be certain than to be right” … do you agree?

Week 7

Tension #3: fairness vs. administrative certainty: issues and practice

ASSIGNMENT:

Peter Shane, Meshing State and Federal Election Law http://moritzlaw.osu.edu/electionlaw/analysis/041130a.htm

Arkansas Voter Intent Rules (http://www.sos.arkansas.gov/elections/elections_pdfs/register/april_2002/108.00.02-003.pdf)

GOP contest petition in Washington Governor's race (http://www.secstate.wa.gov/office/news_docs/Recount/Republican/Petition.pdf)

Motion for Sanctions in Ohio contest (http://moritzlaw.osu.edu/electionlaw/docs/ohio/MossvBush/AGSanctionsMotion.pdf - just pages 1-11 though accompanying documents may be interesting)

Green Party's perspective on New Mexico recount (http://www.votecobb.org/recount/new_mexico/)

Michael Kinsley, "In with the New Voting", Washington Post January 2, 2005 (http://www.washingtonpost.com/wp-dyn/articles/A40054-2004Dec31.html)

QUESTIONS:

How do all the issues we’ve identified in the last seven weeks illuminate your understanding of the post-election controversies in Washington state, Ohio, and elsewhere?

Many observers (including me) have observed that one benefit of the 2000 election controversy is greater public awareness of the electoral process. Have we reached the point where we may be too aware of the process? If so, how might citizens regain confidence in the process without returning to their previous state of ignorance?  If not, what are the potential benefits of the increased transparency of the process for the election system?