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Symposium - 2022 - Safeguarding the Fundamental Right to Vote

Your Vote Counts

Symposium - 2022 - Safeguarding the Fundamental Right to Vote

Election Law in an Age of Distrust

by  Richard H. Pildes  

Election law now operates in a sea of pervasive distrust. This essay argues that election law and practices must adapt to the context of this pervasive distrust. Policies and practices that might be fine under normal circumstances, but are likely to feed distrust today, should be re-thought. This short essay identifies seven initial measures that policymakers, election administrators, and even voters can take to help fend off distrust about the election process.

Volume 74 (2021-2022)

Human hand with ballot paper and vote text

Symposium - 2022 - Safeguarding the Fundamental Right to Vote

Enforcing the Political Constitution

by  Franita Tolson  

This short essay argues that the congruence and proportionality test of City of Boerne v. Flores—which the U.S. Supreme Court applies to laws passed pursuant to Section 5 of the Fourteenth Amendment—should not apply to federal voting rights legislation. This test is inapplicable because the right to vote, although a judicially protected constitutional right, is also a political right beyond the purview of the courts. The right to vote implicates a number of constitutional provisions that are direct grants of power to Congress, the exercise of which can directly conflict with the notions of judicial supremacy that dominate our legal system.

Volume 74 (2021-2022)

Boeing 787-10 rollout with President Trump

Symposium - 2022 - Safeguarding the Fundamental Right to Vote

Ascertaining the President-Elect Under
the Presidential Transition Act

by  Michael T. Morley  

The Presidential Transition Act (PTA) requires the Administrator of the General Services Administration (GSA) to facilitate the transition to an incoming administration following a presidential election. The PTA does not provide any guidance for the GSA Administrator, however, in determining whether a presidential candidate qualifies as a President-elect. This Article provides a framework for Administrators to apply, and Congress to consider codifying, when ascertaining the results of presidential elections under the PTA. It further suggests that Congress should amend the PTA to avoid unnecessarily delays and argues that Congress should reduce the potential perceived significance of the Administrator’s ascertainment decision by changing the term “President-elect” as used in the PTA and related federal statutes to a less politically charged term, such as “federal designee.”

Volume 74 (2021-2022)

i vote

Symposium - 2022 - Safeguarding the Fundamental Right to Vote

The Post-Trump Rightward Lurch in Election Law

by  Michael Kang  

The United States Supreme Court’s decisions last Term, Brnovich v. Democratic National Committee and Americans for Prosperity v. Bonta, mark only the beginning of a conservative transformation of election law under the Court’s post-Trump personnel. This Essay argues that although neither decision itself is immediately transformative, both decisions boldly discard ideological compromises not long ago held as obviously sensible by the right and instead point toward a conservative deregulation of minority voting rights and campaign finance disclosure in the near future.

Volume 74 (2021-2022)

Election Day

Symposium - 2022 - Safeguarding the Fundamental Right to Vote

The Right to Vote

Baselines and Defaults
by  Yasmin Dawood  

An election undoubtedly requires some rules to ensure that it is ‘free and fair,’ but at what point do these rules diminish the equal opportunity of minority voters to cast a ballot? This Essay addresses these questions by examining the baselines that undergird the right to vote. The author identifies three kinds of baselines—legal, contextual, and normative—and explores the implications of each for voting rights protection.

Volume 74 (2021-2022)

Voting

Symposium - 2022 - Safeguarding the Fundamental Right to Vote

Weaponizing the Electoral System

by  Samuel Issacharoff  

This Essay will examine the fragility of election structures that depend on bipartisan agreement to certain ground rules. I argue that democracies depend on two critical features: (1) a commitment to repeat play; and (2) institutional guardrails such that the majority (or even plurality) will win according to preset rules, but not win too much. The populist fervor of the times threatens both. This Essay explores how close to the abyss the election system came in 2020, and how delicate the balance remains going forward.

Volume 74 (2021-2022)