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Online voting is widely used for binding non-governmental elections across the United Kingdom, including in higher education student union elections. For 2.3 million 18-24 year olds, Student Union elections are their first opportunity to vote in a binding election using the internet. Despite the technology's prevalence in higher education, very little is known about the moderating effects of this experience on young peoples' attitude towards online voting in national elections. This prompts the question: Does experience of online voting in low-risk elections have an effect on support for the technology in high-risk contexts, such as national elections, where the consequences of technical failures are much greater? This project also examines the changing priorities of UK electoral law, and why it has fallen short of introducing online voting in spite of the priority given to voter convenience in the recent past. Part one examines the compatibility of internet voting with the priorities of UK election law and the election procedures arising from the law. Through Hansard transcripts, Government statutes, and court records, part one highlights the tension between transparency, secrecy and security procedures and procedures which emphasise voter convenience and the accessibility of elections. The environment created by these conflicting procedures is not automatically conducive to the use of internet voting, despite some accommodating elements. The recent move towards greater barriers to voting and the immediate transparency of the election count pose a high bar for the introduction of internet voting. The largely additive nature of UK election legislating also serves to complicate the UK's body of election law, resulting in a chimera of incongruous procedures and priorities. Part two explores the online voting experiences of 18-24 year olds and the role of experience as a variable which may reinforce support for online voting in national elections. Using a combination of survey and interview data, the study finds significant correlations between salient beliefs about online voting and support for online voting in national elections. However, the study does not find a significant link between the quantity of experience of online voting and increased support for the technology in national elections. This may be because 18-24 year olds are already well acclimated to the online world. Experience of online voting does not foster increased levels of trust in the technology, but there is evidence for a significant relationship between experience levels and beliefs about the usefulness of online voting. Greater levels of experience also correlate with opposition to anti-convenience beliefs. The findings of this thesis have implications for the study of trust in voting technology and how anti-convenience beliefs may be affected by experience. Increasing trust in online voting remains a difficult task as young people remain ambivalent about online security, but reducing anti-convenience opposition to online voting may be possible with a normalisation of the technology through its regular use in low-level elections. For future studies, the indication that experience may reduce anti-voting convenience beliefs could be further explored with a larger sample size. At the level of electoral legislating, this study recommends a public consultation on whether the voting ritual has an intrinsic value and a solicitation of views on what online voting 'ought to be'. This should occur prior to the passage of any online voting legislation in order to build consensus around the technology and avoid undermining trust in the electoral system.

Money in politics is seen as a global, existential threat to democracy and presents unique and difficult challenges for courts when they review political finance regulation. The objective of this dissertation is to develop a normative framework for apex courts, which may guide them reviewing political finance law in a range of constitutional systems. The dissertation thus advances a conception of democratic integrity, which permits considerable legislative choice and appropriately guides courts based on a democratic minimum. Reflecting on the existing rights-structure debate, Part I argues that a new approach should respect the duality of rights and structure in election law, openly mediate between fundamental democratic values, and be based on a richer concept of integrity than that currently in the literature. In developing a theoretical framework that meets these aims, Part II advances three related but distinct strands of democratic integrity: trustworthiness, completeness, and coherence. Trustworthiness describes a democratic system that, through its reliability and honesty, engenders people's trust or confidence. Reliable democracy depends on the other two strands of democratic integrity, which describe the possession and arrangement of democracy's core elements of political liberty and political equality, respectively. Meanwhile, honest democracy is concerned with whether there is reasonable transparency and information about democratic processes. As trust or confidence in democracy generally mirrors its trustworthiness, the dissertation shows how public opinion evidence might be used as an indicator for courts before they assess democratic integrity's objective requirements of reliable and honest democracy. Using this framework, Part III then assesses political finance law jurisprudence in three comparative systems: the United Kingdom, the United States, and Australia. For each system, the dissertation discusses the legal and political context, explores if public opinion evidence justifies greater judicial concern, and identifies ways each system might better achieve democratic integrity's reliability and honesty requirements.

Do electoral systems matter for the outcomes of democratic politics beyond their well-known relationship to party systems? This thesis presents three studies on the consequences of electoral institutions, highlighting how they shape incentives and opportunities for political actors operating at the intra-party level. The first article considers how the spatial representativeness of legislatures - i.e. the extent to which MPs from different parts of the country are equally represented - varies with constituency and ballot structure. The paper proposes a novel measurement to gauge the descriptive representation of places in parliaments and develops a theoretical framework linking spatial representation to parties' incentives and voters' ability to elect local MPs. Consistently with the theory, the analysis finds that mixed-member systems and preferential voting mechanisms are associated with more geographically representative parliaments. The second paper asks whether sub-national legislators' likelihood to run for the national parliament is influenced by the electoral system through which they were elected. Leveraging within-legislature variation in electoral rules across German State parliaments, I find that list-PR MPs are more likely to attempt 'level hopping' than single-member district legislators. It is argued that this depends on the lower levels of electoral security of the former, and to the more direct accountability of the latter to local (s)electorates. The third paper develops a theoretical model of preference vote distribution in preferential-list PR system, extending the approach behind Taagepera and Shugart's Seat Product Model to intra-party competition. I show that the share of preference votes for the first-ranked and last-eligible candidates, as well as the effective number of candidates in a list, can be accurately predicted in expectation as functions of institutional variables. Overall, the thesis makes contributions in terms of measurement, data and theory towards a broader and richer understanding of the intra-party effects of electoral institutions.

In the recent decades, several penal and electoral legislation have implemented different approaches to restrict the right of prisoners to stand for election as voters in the Omani legal system. This controversial policy has affected all Omani prison population even those who are not convicted of committing any crime yet (such as remanded prisoners and awaiting trial) as well as civil prisoners. This thesis argues that the right to vote of prisoners has been seriously violated by the recent Omani disenfranchisement laws. This research argues that, the existing disenfranchisement provisions in Oman asserts the treatment of prisoners as least popular people who not worthy of being treated as citizens qualified for voting rights. This treatment plays a kay role in neglecting the interests and other rights of prisoners by the parliament. It also challenges the reintegration of ex-prisoners into society. Furthermore, prisoners' disenfranchisement Acts in Oman contradict the constitutional right of citizenship. They also violate many other constitutional rights and principles, most importantly the principle of legality (no crime and no punishment without law), the right to be presumed innocent and the right to a public and fair trial. Moreover, disallowing prisoners the right to vote has posed many unavoidable legal challenges to the Omani legal system. This research addresses the question whether the Omani laws, particularly the Penal Acts and Electoral Acts, respect the right to vote of prisoners. Moreover, it considers whether the right to vote of Omani people generally and of prisoners particularly is constitutionally protected. Furthermore, it discusses the extent to which the neglect of the issue of prisoners' voting rights has led to discrepancies between different forms of Omani legislation and violations of many protected constitutional rights and principles. This approach has been provided to analyze how the two different legal policies (electoral and penal) in Oman assess and judge basic issues pertaining to this study with respect to voting rights of prisoners. This research found that there is an essential need for the Omani legislature to reform the legislation with regard to prisoners' voting rights. The right of Omani people to vote must be explicitly guaranteed by the Oman Constitution or, at least, a high rank of legislation (law, rather than a ministerial decree) in the Omani legal order. Oman is urged to ratify international and regional agreements, which protect the right to vote. Omani voters generally must be allowed the right to appeal before the judiciary against the violation of their voting rights. The existing restrictions on prisoners' voting rights could be amended and limited to those who are convicted for committing electoral crimes whether sentenced to imprisonment or other sentences.

In a democracy, voting is not only an important civic duty but also a right that governments owe to their citizens. However, by operation of law, forty-eight states deny voting rights to individuals based on criminal convictions. Activists and scholars attack de jure disenfranchisement as an improper collateral consequence that disproportionately impacts people of color. Although recent years show substantial reforms to reenfranchise defendants, an estimated 5.17 million defendants remained ineligible to vote in 2020. While efforts to address de jure disenfranchisement remain necessary, a problem that has received considerably less attention is the de facto disenfranchisement of criminal defendants who have the legal right to vote but are prevented from exercising it. De facto disenfranchisement applies to defendants who have regained their voting rights as well as defendants who have never lost their rights. Although de jure disenfranchisement excludes millions from voting, confusing restoration requirements, lack of information, misinformation, and physical barriers prevent millions of eligible voters from voting. For example, while most of the nearly 750,000 people in jail have the right to vote, they face informational and access hurdles to exercising their voting rights. Moreover, distrust of the political system and fear of arrest for voting exacerbates the issue. As with de jure disenfranchisement, de facto disenfranchisement disproportionately impacts people of color. As states decide to restore voting rights to more individuals, de jure disenfranchisement will fade, but de facto disenfranchisement threatens to keep the same restrictive policies alive. As a result, more progress is necessary to go beyond merely providing criminal defendants with the right to vote and instead actually empowering them with the ability to vote. This Article addresses the problems associated with de facto disenfranchisement. Further, this Article suggests and analyzes the national, state, and local reforms and practices necessary to ensure that defendants with voting rights have meaningful notice of their rights and access to voting.

According to the U.S. Supreme Court, the right to vote is fundamental because it is preservative of all rights, and yet in many cases legal protections for the right to vote fall short of protections for the other rights that voting is meant to preserve. Redefining 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 of the most important yet understudied issues of election administration: voter list maintenance. In addition to his descriptive account of the novel way states have cooperated to perform list maintenance, Morse’s analysis provides a window into three pathologies of America’s election administration more generally. First, the mechanics of elections directly implicate the fundamental right to vote, raising questions of how stringently these procedures should be evaluated by courts. Second, political interference in the administration of 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 of elections are rooted in our electoral system that narrowly links geography and political representation. Relaxing this link may foster a more effective, responsible, and inclusive system of government.

Decades of research into the effects of voter registration requirements on turnout has found that voter registration disproportionately suppresses turnout among marginalized racial and socioeconomic groups that traditionally are represented by the Democratic Party. Research also shows that enacting Same Day or Election Day Registration (EDR/SDR) increases voter turnout for Democratic candidates in national elections. The conclusion drawn has been that EDR/SDR increases the representation of marginalized groups. The study in this paper challenges these findings in three ways. First, although EDR/SDR results in a larger total democratic vote, the claims of increased representation may be overstated. This study of the effects of SDR/EDR on turnout in individual state legislative districts finds that both Republican and Democratic state legislators experience vote gains after EDR or SDR are implemented. Second, if EDR/SDR increases Democratic representation then it should result in Democratic gains against Republican candidates on a district-by-district basis. This study will show that these gains are by no means certain and may even result in net gains in the Republican voteshare in state legislative districts. Third, previous studies of the effects of EDR/SDR on partisan turnout and voteshares have not included the ideological leanings of the district. This study shows that that a district’s ideology score influences the effects of EDR/SDR on partisan turnout and voteshares both separately and by interacting with EDR/SDR. Finally, a series of difference-in-difference models confirms that the basic findings of the effects of EDR/SDR on voteshare hold when the model is modified to account for changes to EDR/SDR law over time.

This article addresses the key law and policy levers affecting Latinxs in what the U.S. Census Bureau designates as the South. Since the rise of the Latinx population from the 1980s onward, few legal scholars and researchers have participated in a sustained dialogue about how law and policy affects Latinxs living in the South. In response to this gap in legal research, this article provides an overview of the major law and policy challenges and opportunities for Latinxs in this U.S. region. Part II examines the geopolitical landscape of the South with special focus on the enduring legacy of Jim Crow and White supremacy, as well as provides a brief demographic overview of Latinxs in this part of the county. Part III delves into law and policy issues related to political mobilization, immigration, education, and economic opportunity. We explore each policy area by drawing on a diverse universe of knowledge: U.S. Census data, research papers and projects, published interviews, legislation, social science research, newspaper and media profiles, and judicial opinions. Part IV of this article offers a vision for building Latinx political power in the South rooted in coalition building and identifying networks of activism.

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.

Campaigns' increasing reliance on data-driven canvassing has coincided with a disquieting trend in American politics: a stark gap in voter turnout between the rich and poor. Turnout among the poor has remained low in modern elections despite legal changes that have dramatically decreased the cost of voting. In this Article, we present evidence that the combined availability of voter history data and modern microtargeting strategies have contributed to the rich-poor turnout gap. That is the case despite the promises of big data to lower the transaction costs of voter outreach, as well as additional reforms that have lowered the barriers to voting in other ways. Because the poor are less likely to have voted in prior elections, they are also less likely to appear in the mobilization models employed by data-savvy campaigns. In this Article, we draw on a novel data set of voter data laws in every state and show that turnout rates among the poor are lower in states that disclose voter history data to campaigns. We also find that after states change their laws to provide voter history to campaigns, these campaigns are far less likely to contact the poor. The consequences of this vicious cycle are already known: the unique interests of the poor have been entirely unrepresented in the political process. Such political marginalization and alienation of an entire class from the democratic process is not only a problem for the poor; it poses a systemic threat to political moderation and democratic stability. Politically marginalized and alienated groups may resort to nonpolitical means to effectuate social change and may also become ripe for recruitment by extremist and anti-democratic elements that are latent in every society. Recent incidents of domestic political violence demonstrate that the United States is no exception. To address this threat of marginalizing the poor from democratic politics, we advance three sets of proposals. First, we argue that states should regulate the information environment of political campaigns. Prohibiting the collection and distribution of voter history data is not practical, but states should lean into their privacy laws to prohibit the matching of voter files with other administrative data sets and should provide voter history data to campaigns independent of any information about individual political preferences. Second, states should create financial incentives for campaigns to expand their mobilization efforts to include a more representative target population that is more inclusive of the poor. Traditional campaign finance voucher and tax rebate programs are likely inadequate on their own. Instead, we propose a series of novel incentive programs that would provide cash grants to campaigns that report the most donors during each reporting period and to parties that generate more turnout than their historical average. Finally, we advance proposals for social media platforms to self-regulate "look-alike" targeting and segmented online political ads that amplify inequalities in mobilization and exacerbate political marginalization. Political parties and individual campaigns in the United States are currently not mandated by law to promote political equality. The above reforms aim to align the short-term interests of parties and campaigns (winning the next election) with the long-term public interest in preserving a healthy democracy. Constructing a more inclusive political system will benefit everyone who seeks to live in a sustainable representative democracy, not just those who are currently marginalized.

In several areas of law and public policy, there have been longstanding dreams that computers can secure decision making that takes only some things into account, while remaining demonstrably neutral to other factors. In 2022, the U.S. Supreme Court will consider mandating race-neutrality in multiple domains, notably in college admissions and redistricting. In this piece, we clarify the real and imagined uses of computers in redistricting, considering their application for optimization approaches and, more recently, for representative sampling. The current pitch to the Court for a race-blind Voting Rights Act is discussed at length.

Capitalizing on recent advances in algorithmic sampling, The Race-Blind Future of Voting Rights explores the implications of the long-standing conservative dream of certified race neutrality in redistricting. Computers seem promising because they are excellent at not taking race into account—but computers only do what you tell them to do, and the rest of the authors’ apparatus for measuring minority electoral opportunity failed every check of robustness and numerical stability that we applied. How many opportunity districts are there in the current Texas state House plan? Their methods can give any answer from thirty-four to fifty-one, depending on invisible settings. But if we focus only on major technical flaws, we might miss the fundamental fact that race-blind districting would devastate minority political opportunity no matter how it is deployed, just due to the mathematics of single-member districts. In the end, the Article develops an extreme interpretation of a dubious idea proposed by Judge Easterbrook through an empirical study that is unsupported by the methods.

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights but based on their rights as current and future members of the political community. This is the second of two Essays. The first Essay focused on voting restrictions impacting Asian American and Latino voters. The second Essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 Census. Together, the Essays critique the exclusion of immigrants from the political community because this exclusion compromises representational equality.

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This Essay describes several barriers facing immigrants and naturalized citizens that impede their political belonging. It critiques these barriers on the basis of immigrants and foreign-born voters having rights of semi-citizenship. By placing naturalization backlogs, voting restrictions, and reapportionment battles in the historical context of voter suppression, it provides a descriptive and normative account of the political misrepresentation of immigrants.

This dissertation studies unintended legal consequences in three fields: private U.S. interstate law, public U.S. interstate law, and international law. The first essay examines a feature in federal civil litigation that is really fit only for one jurisdiction or a small state, but has been overextended to apply to interstate disputes. Using a Third Circuit case, the first essay examines how corporations can exploit a loophole in federal civil procedure and choice of law practice to evade liability for torts. Amendments to civil procedure are presented as a solution. The second essay examines a phenomenon in public interstate law, in which permutations of laws governing individual jurisdictions have produced undesirable results. U.S. states redraw electoral districts for state legislatures and the federal Congress following each decennial census. That process must generally comport with what the Supreme Court of the United States calls “traditional” districting criteria. However, the lack of a clear definition of that term is leading to abuse by conflicted interests. The second essay submits an empirical and objectively discernible definition of traditional districting criteria that would end such abuse: a criterion is traditional only if it is legislatively codified in the laws of 26 or more states and prohibited by 12 or fewer. The final essay examines a problem in international law that obstructs the creation of treaties against transboundary pollution. States must generally and consistently renounce transboundary pollution for it to become illegal under CIL. However, because states culpable for transboundary pollution are not likely to suddenly practice self-restraint, transboundary pollution must already be illegal for states to renounce it generally and consistently. To circumvent this catch-22, I propose forcing states to engage in conservation by using a legal device that states have already voluntarily bound themselves to for a different purpose, but can be interpreted plausibly as creating environmental obligations. Specifically, BITs can be interpreted to arbitrate disputes not only about investment expropriation, but also environmental disputes arising from any investment. The essay elaborates on the legal mechanism that would enable environmental arbitration, as well as contributing to a discourse on how the global community may legitimately outlaw an offense over the objection of the offenders, but also under the consent of the governed.

At present, campaign finance regulations may only be justified if their primary purpose is to prevent quid pro quo corruption or the appearance of corruption. References to the ‘‘appearance of corruption’’ are ubiquitous in campaign finance decisions, yet courts have provided very little guidance about what the phrase means. In this article, we report findings from a broadly representative national survey in which we (1) directly ask respondents to identify behaviors that appear politically corrupt, and (2) indirectly measure perceptions of corruption using a novel paired-choice conjoint experiment asking respondents to choose which of two randomly generated candidates are more likely to do something corrupt while in office. Our findings both support and challenge current campaign finance jurisprudence. Our direct item shows that bribery is considered to be the most politically corrupt behavior, while wealthy self-funded candidates are not perceived as corrupting the political system. These findings support the reliance of courts on bribery as the primary justification for campaign finance rules, and the courts’ dismissal of regulations targeting wealthy candidates. However, most of our respondents perceived many common behaviors besides bribery to be ‘‘very corrupt,’’ challenging courts’ reliance on bribery as the sole justification for campaign finance rules. Our conjoint experiment, designed to force trade-offs between various behaviors, similarly reveals little differentiation across candidate campaign finance profiles, suggesting voters may not distinguish common behaviors in terms of their corrupting role. A normatively positive result in our conjoint analysis is that partisans do not appear to define corruptibility on the basis of in-/out-party signals.

This Essay argues for a greater understanding of Sojourner Truth’s little-discussed role as a proto-agonist (a marginalized, long-suffering forerunner as opposed to a protagonist, a highly celebrated central character) in the process that led up to the passage of the Nineteenth Amendment. Though the Nineteenth Amendment failed to deliver on its promise of suffrage for black women immediately after its enactment, black women were stalwarts in the fight for the Amendment and for women’s rights more broadly, well before the ratification of the Amendment and for many years after its passage. Women’s rights in general, and black women’s rights in particular, were created and sustained by the work of antebellum activists like Sojourner Truth, a towering figure who was tied to nineteenth-century movements for abolition and women’s suffrage. Sojourner Truth’s advocacy on behalf of women was premised upon a womanist approach to speech and action that centered the experiences of black women in the business of equal rights both in terms of race and gender. Sojourner Truth’s work as a justice-seeking sage with a goal of advancing the legal, political, and economic rights of women in general and black women in particular is a source of inspiration and a model for making contemporary black women protagonists and co-agonists—co-centric figures—in the work that is still much needed at the centennial of the Nineteenth Amendment.

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.

This article explores the need to develop a Latinx-focused network that advances law and policy. The Network for Justice is necessary to build upon the existing infrastructure in the legal sector to support the rapidly changing demographic profile of the United States. Latinxs are no longer a small or regionally concentrated population and cannot be discounted as a foreign population. Latinxs reside in every state in our nation and, in some communities, comprise a majority of the population. The goal of the Network for Justice is to facilitate and support local and statewide efforts to connect community advocates to formal channels of creating or defending law and policy. This article provides a rationale for building a national network that connects existing advocacy institutions and community organizations, with law schools, academic institutions, lawyers, and policy makers. The building blocks for a Network for Justice that support law and policy to advance Latinx civil rights are already in place but this effort requires greater coordination to more effectively advance common interests. This model draws first and foremost from the existing community resources, recognizing that the foundational core of such a network should rest in the hands of Latinxs themselves.

"© 2018, Douglas M. Spencer. All rights reserved."

Lies take many forms. Because lies vary so greatly in their motivations and consequences (among many other qualities), philosophers have long sought to catalog them to help make sense of their diversity and complexity. Legal scholars too have classified lies in various ways to explain why we punish some and protect others. This symposium essay offers yet another taxonomy of lies, focusing specifically on election lies — that is, lies told during or about elections. We can divide and describe election lies in a wide variety of ways: by speaker, by motive, by subject matter, by audience, by means of delivery, and more. These different ways of thinking about election lies are by no means mutually exclusive; indeed, they often overlap. Election lies understandably disturb us when they succeed in deceiving their targets, when they influence election outcomes, and when they degrade our public discourse. At the same time, however, we also fear government overreach and the dangers of partisan enforcement, we worry that regulation will inadvertently chill truthful and thus valuable speech, and we sometimes wonder whether the causal link between election lies and significant harm is sufficiently direct to justify the lies’ constraint. By illuminating the diversity and complexity of election-related lies, I emphasize the value in thinking more carefully about what troubles us about them and why. In so doing, I hope to help sharpen our thinking about when and why election lies might be harmful or instead valuable; when and why their regulation might threaten other harms; and when and why they might be amenable to constraint through law, norms, markets, and architecture — or not at all. As just one illustration, why might the identity of the election liar matter? First, the nature of the speaker may shed some light on the First Amendment value, if any, of the lie. The First Amendment sometimes protects lies because of their value in furthering the speaker’s autonomy — as is the case, for example, of lies told to preserve the speaker’s privacy or that enable the speaker to choose how to portray herself to others. But some liars may have less of a claim to constitutionally protected autonomy interests precisely because of their foreign, robotic, corporate, or governmental identity. Second, the speaker’s identity may exacerbate the threats that its election lies pose to key constitutional values: think, for example, of the threats to democratic self-governance posed by foreign or governmental lies. And with respect to possible solutions, the election lies of some speakers (such as robots) may be more amenable than others to regulation by code, some (like corporations) to markets, some (like candidates) to norms, and some (like government) to law. Maybe. In this essay, I offer a long — yet no doubt incomplete — litany of campaign-related falsehoods to show that election lies pose many problems, plural. Some may threaten greater or more direct harm than others, and some may be more responsive to different forms of constraint than others. The variety and complexity of the problem of election lies — their dangers and (perhaps occasionally) their value — require nuanced and diverse responses that recognize the harms of various lies as well as the challenges posed by efforts to constrain them.

Elections for corporate directorships have become more competitive and expensive in recent years, raising important questions of corporate campaign finance, such as whether an insurgent campaign must disclose the source of its funding and whether a director is permitted to receive third-party compensation during her term in office (known as a "golden leash"). These present novel and unanswered issues of corporate law, but many analogous issues have been resolved in the political sphere using the First Amendment and a well-developed line of Supreme Court case law beginning with Buckley v. Valeo and continuing through Citizens United and other key precedents. This body of law, known as the "Buckley framework," is premised in part on the need to defend a republican form of government from incumbent officials who may seek to entrench themselves in office by imposing tight financial constraints on campaigns that seek to unseat them. This Article contends that the underlying logic of the Buckley framework is transferrable to the corporate context. Corporations are organized based on a republican form of governance akin to our political democracy where shareholders vote for directors who serve a fixed term. Just as in the political arena, there is a concern that incumbent directors may seek to thwart corporate democracy and entrench themselves in office. For this reason, the famous Blasius doctrine of corporate law calls for searching judicial scrutiny when an incumbent board interferes with the ability of shareholders to vote them out of office. This Article argues that the Blasius doctrine should apply when an incumbent board of directors imposes regulations on the financing of challengers' campaigns, and that the doctrine should in such cases incorporate the teachings of the Buckley framework. Under the combined Blasius-Buckley framework developed herein, incumbent boards have authority to regulate the financing of corporate elections so long as there is a compelling corporate interest at stake. Finally, to illustrate the Blasius-Buckley framework, the Article analyzes corporate bylaws that regulate or prohibit the golden leash, concluding that while the so-called "Wachtell Bylaw" may go too far, a modified version would likely pass muster.

The 2000 US Presidential Election brought the confusing array of electoral rules to the minds of many in the mass media and politics. One reform advocated to improve the integrity of elections was to require voters to present identification at the polls prior to receiving a ballot. This particular reform generated much controversy, as critics worried that millions of citizens would be denied a ballot because they lacked government-issued photo ID, a form of ID advocated by many Republican officials. The controversy extended to the courts, with photo ID requirements upheld by a 6-3 US Supreme Court decision in 2008 in part due to the lack of evidence that ID laws prevented any citizens from voting. Consequently, over 30 states now require some form of ID of all voters in elections prior to receiving a ballot. Surprisingly, extant research has failed to uncover evidence of a consistent impact on voter participation. My research shows that the best way to understand whether and how voter ID laws impact turnout in national elections is to begin with a theory of how these laws are shaped by the strategic environment faced by the state political parties whose job is to win elections. Using a variety of data sources, I examine how ID laws impact political participation in the US. This includes examining both what factors led some states to adopt these laws as well as their impact on voter participation and mobilization. I find that laws appear to be adopted primarily for strategic reasons rather than to combat voter fraud. States with growing minority populations and large gaps between midterm and presidential election turnout are more likely to enact photo ID laws than other states. Showing that partisan concerns impact adoption. However, using aggregate turnout from both states and counties in past federal elections I do not find any consistent negative impact. Surprisingly, photo ID laws appear to increase turnout in states with large African American populations, with a significant negative impact only in areas with few minority voters. I attribute this to a change in campaign strategy where Democratic groups are using laws to mobilize minority voters. Using survey data from 2010 and 2012 I show that African Americans are more likely to be contacted in states with photo ID laws, which helps explain the surprising impact of these laws on voter turnout. While ID laws may have been enacted to achieve a partisan advantage for Republicans, these reforms do not take place in a vacuum where they are immune to any response. Critics and opponents of voter ID requirements may be successfully using these laws to mobilize the very groups they are thought to suppress.

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 Court's 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.

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.

The Bipartisan Campaign Reform Act increased the individual donor limit to $2,000 per candidate per election and indexed the limit for inflation every two years. The primary research question guiding this study is how has the increase in the donor limit affected donor behavior. Answering this question should allow a determination to be made about how donors have responded to the increased donor limit. Understanding how donors responded to the doubled limit is important because it provides evidence on the intersection of wealth inequality and political influence. To answer the research question this study considers how the increased donor limit has changed patterns of participation among donors. The focus is on the preprimary period of the presidential race because it is the most important period to campaign fundraising and the stage that provides the sharpest control of several important political variables given no contest is held in this period and most candidates enter in this stage but few drop out before the start of the primary and there is usually no clear frontrunner. The evaluation covers the 2000 election, representing one period before the increase went into effect, and elections of 2004, 2008, and 2012, representing three periods after the increase went into effect. Descriptive and analytic statistics are used to determine if the increased limit is leading to a distortion in the distribution of donations and widening the gap between the bottom and top donors and states. The findings of this study should provide important information about how the donors responded to the law.

The current legal framework for protecting voting rights in the United States has been dramatically destabilized by Supreme Court decisions re-interpreting the protections against minority vote dilution and requires rethinking to survive modern challenges. At the same time, the nation has itself undergone dramatic changes in the racial composition of its polity and in the complexity and salience of race as a factor in political life. In this paper, we focus on a relatively unexamined constituent of this complex reality of modern racial diversity that illustrates some of the core features that all minority groups face in continuing VRA challenges: Asian Americans. In the face of apparent political disempowerment, it is curious that Asian Americans have very rarely succeeded in invoking Section 2 of the Voting Rights Act, a legal measure devised specifically to bolster minority political power. Is this because the necessary conditions for a successful political challenge have not yet arisen? Is the problem a structural one implicating problems in institutional design? Or is it some combination of both, indicating the double harm of a permanent political minority without ability to secure legal redress under the VRA? Social science and legal scholarship suggest that the legal standards used to trigger the special protections of the VRA contain underspecified assumptions about political behavior and oversimplified understandings about racial identity. This paper attempts to mobilize insights about the political behavior of racial minorities in the service of a multi-dimensional approach toward thinking about legal remedies for democratic exclusion. Our core contention is that the problem of democratic exclusion is multi-factorial and requires a multi-pronged approach to redress. Such an approach includes augmenting available data about the political participation of racial minorities, refining empirical measures to reflect racial politics in a complex, multiracial electorate, and revisiting available remedies in light of a problem with both political and legal dimensions.

This dissertation confronts several important questions about the institutional regulation of elections at the intersection of law and political science. I begin by showing how recent political reforms linking responsiveness to legislative action are misguided. State lawmakers that are elected by very narrow margins are no more likely to vote with the opposing party on legislative bills than are state lawmakers elected by huge margins. In fact, lawmakers elected by more than 85% of the vote are more likely to engage in cross-party voting. This empirical finding turns the traditional view of gridlock on its head; electoral responsiveness and political gridlock are complementary and not competing values. The median voter theorem is actually agnostic about polarization and gridlock, but my findings suggest that the conventional predictions about close elections and gridlock attributed to the median voter theorem may be incorrect.I also show how independent political spending has been driven underground in the wake of Citizens United v. FEC. Because all of the "new" money that was permitted by Citizens United was funnelled to nonprofit organizations that are not required to disclose their donors, shareholders and the public cannot regulate the process as the majority expected they would. On the other hand, new independent political expenditures after Citizens United were not disproportionately large. In other words, the fear that large corporations would drown out the voice of individuals appears to be misplaced. Finally, we see that the decision to delegate is not just about expertise or efficiency. Instead, delegation requires an analysis to match policy domains to the most appropriate regulatory body. In some cases delegation can mitigate problems, in other cases delegation can exacerbate problems. I show that delegation is not advisable for hot-button partisan issues (e.g., voter I.D. laws, voter registration requirements, recount procedures, redistricting), but is very valuable for the regulation and administration of technical, nonpartisan issues (e.g., accessibility for disabled voters, voter intent standards, voting technology).The main goal of this dissertation is to show how careful empirical analysis can orient effective political reform and improve the election law jurisprudence. I hope that this thesis will inspire other scholars to engage in empirical research about the political process and that my analysis will be a valuable resource for them.

This symposium essay suggests that we can sometimes understand those who resist campaign disclosure or disclaimer requirements as interested in keeping a secret and occasionally even in telling a sort of lie about the source or intensity of support for a particular candidate or cause. Such secrets and lies threaten listeners’ autonomy interests when the speaker seeks to keep such secrets (and sometimes seeks to tell such lies) to enhance her ability to influence her listeners’ decisions. For these reasons, I suggest greater attention to the reasons speakers seek to keep secrets (or occasionally tell such lies) in assessing the First Amendment implications of disclosure and disclaimer requirements in a range of campaign, commercial, professional, and other contexts. As a doctrinal matter, such a focus might helpfully inform our choice of the appropriate level of scrutiny to be applied to such disclosures – for example, we might be less suspicious of disclosure requirements designed to protect listener autonomy than those motivated by other governmental purposes. Such a focus might also (or instead) help determine whether a contested disclosure requirement survives a specific level of review, depending on the justifications offered by both challenger and government. In short, this essay contends that disclosure and disclaimer requirements should be understood as least troubling for First Amendment purposes when applied to speakers who seek to keep secrets (or occasionally tell lies) to manipulate their listeners’ decision-making and thus threaten their autonomy.

Although government entities frequently engage in issue-related campaign speech on a variety of contested ballot and legislative measures, this fact has been entirely overlooked in contemporary First Amendment debates over campaign speech law specifically and government speech more generally. The Supreme Court's "campaign speech" and "government speech" dockets have focused to date on claims by private parties that the government has restricted or silenced their speech in violation of the First Amendment. In contrast, disputes over what this Article calls "governmental campaign speech" involve Free Speech Clause and other challenges by private parties who seek instead to silence the government's speech on matters subject to vote by members of the public or their elected representatives. This Article thus explores when, if ever, governmental campaign speech on contested ballot and legislative measures is sufficiently dangerous to justify a departure from the general rule that the government's own speech is insulated from Free Speech Clause review. This inquiry invites important and challenging questions about both the nature of government and the nature of speech, valuably forcing us to think about how government does, and should, work as well as how speech does, and should, work. To this end, this Article reexamines the constitutionality of governmental campaign speech by incorporating perspectives offered by the emerging--but so far entirely separate--constitutional debates over campaign finance reform and government speech. This Article contends that government speech on issue campaigns generally furthers, rather than frustrates, key First Amendment interests. Transparently governmental campaign speech often provides great value to the public: it enhances political accountability by informing voters of their governments' priorities and preferences, provides a valuable heuristic for those who do not or cannot evaluate the competing arguments for themselves, and adds to the marketplace of available ideas and arguments, especially (but not only) as a counter to expression from powerful, private sources. The Article also identifies limits to its general proposition that the government's campaign speech is constitutionally valuable. First, it emphasizes that the government should be permitted to assert the government speech defense to constitutional challenges to its campaign speech on contested ballot or legislative measures only when that speech is transparently governmental in origin-when the public can clearly identify the message's governmental origins and thus hold the government politically accountable for its views. Second, it distinguishes government campaign speech that involves government's endorsement of political candidates, concluding that governmental bodies' campaign speech endorsing or opposing specific candidates raises greater threats to constitutional interests in preventing the self-perpetuation of incumbents and the entrenchment of political power. Finally, it highlights the availability of statutory and other nonconstitutional limits on government campaign speech, concluding that such constraints are constitutionally permissible yet often unwise as a policy matter in light of such expression's great instrumental value to the public. It urges instead that policymakers carefully target such constraints to address specific instances of abusive government speech.

This dissertation seeks to determine if, and to what extent, federal judges behave in a partisan manner when deciding politically salient election law cases. Specifically, do judges favor the interests of their political party, after controlling for judicial policy preferences? The main hypothesis that I seek to test is the relationship between case votes and the interests of a judge’s political party in a given election law case. I posit that when the judge’s political party benefits from a ruling for the plaintiff/defendant, a judge will be more likely to rule for the plaintiff/defendant. I also test four additional hypotheses, all of which should moderate the relationship between partisan interests and case votes. I test the effects of political career experience, age, court of appeals membership, and partisan panel composition on the likelihood of a judge ruling in favor of her political party.To test these hypotheses, I model the case votes of federal district court and court of appeals judges in campaign finance, political party right to association, and redistricting cases from 1962 through 2007. To control for a judge’s policy preferences, I impute first and second dimension common space scores for all federal judges in my dataset. Of the three categories of election law cases examined in this dissertation, only the campaign finance models consistently produce a statistically significant partisanship effect. There is also evidence of a conditional partisanship effect in redistricting cases, which is contingent on the partisan composition of a three-judge district court. Additionally, judicial policy preferences are statistically significant predictors of judicial behavior in political party right to association and redistricting cases, and campaign finance cases that do not involve the interests of the Democratic and Republican Parties. While most political science models of judicial behavior emphasize policy preferences or a combination of law and policy preferences to explain and predict judicial behavior, the results of this dissertation provide evidence that social groups could be another important, systematic influence on judicial behavior. Specifically, these results suggests that judges hold separate sets of preferences: preferences for preferred in-groups (such as a political party) and policy preferences. Therefore, judicial scholars should consider, when appropriate, the influence of personally salient social in-groups when modeling judicial behavior.While the influence of partisan preferences in any form is troubling, the results demonstrate that the effect of partisanship is not pervasive in all areas of election law. As such, policy makers should decide if any semblance of partisanship is unacceptable in the federal courts before considering any potential reforms or changes to the judiciary.

This pilot study represents the first systematic attempt to determine how common lines are on Election Day, at what times of day lines are most likely to form, what are the bottlenecks in the voting process, and how long it takes an average citizen to cast his or her ballot. This study highlights the importance of evaluating polling station operations as a three-step process: arrival, check-in, and casting a ballot. We collected data during the 2008 presidential primary election in California, measuring the efficiency of the operational components of 30 polling stations across three counties. We found statistically significant, and meaningful, variation in the service rates of poll workers and voting technology. Our findings should better help election officials make critical decisions about the allocation of critical resources.

If the government convicts a citizen under the tax evasion provisions of the Internal Revenue Code, some state disenfranchisement laws preclude that citizen — now a felon — from voting. In this sense, the right to vote depends on the payment of federal income taxes. The Constitution's Twenty-Fourth Amendment, however, guarantees that the federal franchise “shall not be denied or abridged... by reason of failure to pay any poll tax or other tax.” If “other tax” includes income taxes, the text of the Twenty-fourth Amendment appears to prohibit the disenfranchisement of citizens convicted of tax felonies. This Comment argues that courts should construe the Twenty-Fourth Amendment narrowly to permit the disenfranchisement of tax felons — even though the Twenty-Fourth Amendment’s plain language precludes states from disenfranchising tax felons for federal elections.

"The six papers that follow were first presented at a conference sponsored by the Byron R. White Center for the Study of American Constitutional Law and by the University of Colorado Law Review, titled The Voice of the Crowd--Colorado's Initiative. The conference was held at the Colorado State Capitol in Denver on January 26, 2007."

In recent years, there have been several high-profile prosecutions for violations of the Federal Election Campaign Act, involving contributions nominally by one individual but funded or reimbursed by another individual deemed to be the true contributor. Prosecutions of these “conduit contribution” cases have been surprising in at least three significant respects. First, the prosecutions have been based on violations of FECA’s reporting requirements and may not have involved any violations of the substantive prohibitions or limitations of contributions. Second, the defendants were the donors rather than campaign officials who actually filed reports with FECA. Third, the cases were prosecuted as felonies under general criminal statutes rather than FECA’s misdemeanor penalties for making contributions under a false name.The article analyzes the prosecutions and advances three independent arguments for the elimination or limitation of felony prosecutions for conduit campaign contributions.First, Supreme Court mens rea jurisprudence suggests that felony prosecutions regarding this specific behavior should, at a minimum, require a showing that the defendant was aware of the prohibition she is charged with violating. There are strong reasons for not relying on prosecutorial discretion in determining whether to prosecute a particular violation as a felony or as a misdemeanor.Second, the passage of the specific misdemeanor provisions in FECA strongly suggests that Congress preempted the application of general criminal statutes for false statements, mail fraud, or conspiracy to defraud. The preemption argument has been rejected by the courts based on incomplete analysis. This argument also introduces the concept of “greater included offense.”Third, criminal felony (and possibly misdemeanor) prosecutions of campaign contributions under a false name constitute a serious infringement of First Amendment rights of political speech and association. The Supreme Court’s decision in Buckley v. Valeo does not justify infringing on First Amendment rights in the specific context of conduit contributions. These concerns justify rethinking our approach to prosecutions related in federal election campaign law. Proponents of campaign regulation may be concerned about weakening enforcement, but enforcement is unlikely to be hampered substantially.

"This article was published originally at 52 Tenn. L. Rev. 549 (1985) and appears here by permission of the Tennessee Law Review Association, Inc." This Article is related to the author's Austin W. Scott, Jr. Lecture delivered at the University of Colorado School of Law.

"©1986 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association."