VOTING RIGHTS AND ELECTION LAW

Transcription

1 VOTING RIGHTS AND ELECTION LAW

2 LexisNexis Law School Publishing Advisory Board Paul Caron Professor of Law Pepperdine University School of Law Bridgette Carr Clinical Professor of Law University of Michigan Law School Steven I. Friedland Professor of Law and Senior Scholar Elon University School of Law Carole Goldberg Jonathan D. Varat Distinguished Professor of Law UCLA School of Law Oliver Goodenough Professor of Law Vermont Law School John Sprankling Distinguished Professor of Law McGeorge School of Law

3 VOTING RIGHTS AND ELECTION LAW SECOND EDITION Michael Dimino Associate Professor of Law Widener University School of Law Bradley Smith Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law Capital University Law School Michael Solimine Donald P. Klekamp Professor of Law University of Cincinnati College of Law

4 ISBN: (casebook) ISBN: (looseleaf) Library of Congress Cataloging-in-Publication Data Names: Dimino, Michael, author. Smith, Bradley A., author. Solimine, Michael E., author. Title: Voting rights and election law / Michael Dimino, Associate Professor of Law, Widener University School of Law, Bradley Smith, Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School, Michael Solimine, Donald P. Klekamp Professor of Law, University of Cincinnati College of Law. Description: Second edition. New Providenc, NJ : LexisNexis, Includes index. Identifiers: LCCN ISBN (hardbound) Subjects: LCSH: Election law--united States. Classification: LCC KF4886.D DDC /07--dc23 LC record available at This publication is designed to provide authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. Copyright 2015 Matthew Bender & Company, Inc., a member of LexisNexis. All Rights Reserved. No copyright is claimed by LexisNexis or Matthew Bender & Company, Inc., in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material may be licensed for a fee from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass , telephone (978) NOTE TO USERS To ensure that you are using the latest materials available in this area, please be sure to periodically check the LexisNexis Law School web site for downloadable updates and supplements at Editorial Offices 630 Central Ave., New Providence, NJ (908) Mission St., San Francisco, CA (415) (2015 Pub.3285)

5 Dedication To Michael and Steven with pride, affection, and love M.R.D. To Julie, Eleanor, and Emma B.A.S. To Pat, Jane, and Jimmy M.E.S. iii

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7 Preface The law of politics is one of the most exciting, consequential, and fun subjects in the law-school curriculum. Disputes about political power involve much more than a single controversy; rather, they set the rules for the resolution of future disputes and go a long way toward determining who will resolve those disputes and how those disputes will be resolved. But courts don t (or aren t supposed to) make up these rules themselves; it is the political process itself that sets its own rules. Evaluating the judicial role in overseeing those rules and the process that creates them is a constant theme throughout this text. We hope the subject fascinates you as it fascinates us. Readers should be aware of certain conventions we have used in editing cases. Footnotes, citations, and section headings have been deleted without indication. Our deletions of text are marked by asterisks. Footnotes appearing in the cases have retained their original numbers; our footnotes are indicated by letters. Paragraph breaks have occasionally been altered. There are many persons with whom we have shared portions of this book, and whose suggestions have improved the final product. Among those persons, Heather Gerken and Allison Hayward deserve special mention. We are also indebted to others whose scholarship has created a field of election law, and whose work has enriched our understanding of the subject: Rick Hasen, Sam Issacharoff, Pam Karlan, Dan Lowenstein, Rick Pildes, and Dan Tokaji. In addition, we have benefited from several on-line resources, including Hasen s Election Law Blog and listserv, as well as Election Moritz and Ballot Access News. We are thankful for the administrative support of Connie Miller, as well as the research assistance of Lisa Bemboom, Bill Cash, Alexander Czebiniak, Jacob Dean, Keely Espinar, Carol Herdman, Joe Holaska, Cecille Lucero, Clarke Madden, Julie Olivas, Justin Swartz, Jesse Unruh, and Shawn-Ryan White. Dimino wishes to extend additional thanks to Professors Smith and Solimine. They have been delightful co-authors, and it has been a great pleasure to work with both. Their expertise, good humor, and cooperative attitudes have been essential in the more than two years it has taken to write this book, and I am indebted to them. Without their agreement to become part of this book it never would have been written, and without their insights it would not have been as good as it is. Please contact us with ideas for improving the book in the next edition. Michael Dimino mrdimino@widener.edu Bradley Smith bsmith@law.capital.edu Michael Solimine michael.solimine@uc.edu v

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9 Table of Contents Chapter 1 VOTING QUALIFICATIONS A. INTRODUCTION B. DEFINING THE COMMUNITY AND EXCLUDING OUTSIDERS The Illiterate Lassiter v. Northampton County Board of Elections Notes and Questions South Carolina v. Katzenbach Katzenbach v. Morgan Notes and Questions The Poor Harper v. Virginia State Board of Elections Notes and Questions The Law-Breaking Richardson v. Ramirez Notes and Questions Hunter v. Underwood Notes and Questions The Disinterested Kramer v. Union Free School District No Notes and Questions Salyer Land Co. v. Tulare Lake Basin Water Storage District Notes and Questions Holt Civic Club v. City of Tuscaloosa Notes and Questions The Newly Resident Pope v. Williams Carrington v. Rash Dunn v. Blumstein Notes and Questions Marston v. Lewis Notes and Questions Chapter 2 POLITICAL QUESTIONS A. INTRODUCTION B. THE NON-JUSTICIABILITY OF THE GUARANTEE CLAUSE Pacific States Telephone & Telegraph Co. v. Oregon Colegrove v. Green Gomillion v. Lightfoot vii

10 Table of Contents Notes and Questions C. WELL DEVELOPED AND FAMILIAR STANDARDS OF EQUAL PROTECTION Baker v. Carr Vieth v. Jubelirer Notes and Questions Chapter 3 ONE PERSON, ONE VOTE A. INTRODUCTION B. THE CONSTITUTIONAL BASIS FOR ONE PERSON, ONE VOTE Gray v. Sanders Notes and Questions Wesberry v. Sanders Notes and Questions Reynolds v. Sims Notes and Questions C. APPLYING THE CONSTITUTIONAL STANDARDS: HOW EQUAL IS EQUAL ENOUGH? Kirkpatrick v. Preisler Notes and Questions Mahan v. Howell Notes and Questions Gaffney v. Cummings Notes and Questions Cox v. Larios Notes and Questions D. OTHER LIMITS ON MAJORITARIANISM: SUPER-MAJORITIES AND GEOGRAPHICAL DISTRIBUTION REQUIREMENTS Gordon v. Lance Notes and Questions Moore v. Ogilvie Town of Lockport v. Citizens For Community Action at the Local Level, Inc Notes and Questions Chapter 4 PRECLEARANCE UNDER SECTION 5 OF THE VOTING RIGHTS ACT A. INTRODUCTION B. VOTING STANDARDS, PRACTICES, AND PROCEDURES Allen v. State Board of Elections viii

11 Table of Contents Notes and Questions C. RETROGRESSION Beer v. United States Notes and Questions Georgia v. Ashcroft Notes and Questions D. THE CONSTITUTIONALITY OF SECTION 5 REVISITED Shelby County, Alabama v. Holder Notes and Questions Chapter 5 DISTRICTING BY RACE A. INTRODUCTION B. CONSTITUTIONAL CONSTRAINTS ON MINORITY VOTE DILUTION Whitcomb v. Chavis Notes and Questions White v. Regester Notes and Questions United Jewish Organizations, Inc. v. Carey Notes and Questions City of Mobile v. Bolden Notes and Questions C. SECTION 2 S POST-1982 RESULTS TEST Thornburg v. Gingles Notes and Questions Johnson v. De Grandy Notes and Questions D. STANDARD, PRACTICE, OR PROCEDURE IN SECTION Chisom v. Roemer Notes and Questions Holder v. Hall Notes and Questions E. CONSTITUTIONAL CONSTRAINTS ON MAJORITY-MINORITY DISTRICTING Shaw v. Reno Notes and Questions Miller v. Johnson Notes and Questions F. RESOLVING THE SHAW/VRA CONFLICT League of United Latin American Citizens v. Perry Notes and Questions ix

12 Table of Contents Bartlett v. Strickland Notes and Questions Chapter 6 THE ROLES AND RIGHTS OF POLITICAL PARTIES A. INTRODUCTION B. STATE ACTION Grovey v. Townsend Notes and Questions Smith v. Allwright Notes and Questions Terry v. Adams Notes and Questions C. ASSOCIATIONAL RIGHTS OF PARTIES Democratic Party of The United States v. Wisconsin ex rel. La Follette Notes and Questions Tashjian v. Republican Party of Connecticut Notes and Questions Eu v. San Francisco County Democratic Central Committee Notes and Questions California Democratic Party v. Jones Notes and Questions Clingman v. Beaver Notes and Questions Washington State Grange v. Washington State Republican Party Notes and Questions Duke v. Massey Notes and Questions Larouche v. Fowler Notes and Questions D. THIRD PARTIES, INDEPENDENT CANDIDATES, AND BALLOT ACCESS Williams v. Rhodes Notes and Questions Jenness v. Fortson Notes and Questions Bullock v. Carter Notes and Questions Storer v. Brown Anderson v. Celebrezze Notes and Questions x

13 Table of Contents Burdick v. Takushi Notes and Questions Timmons v. Twin Cities Area New Party Notes and Questions New York State Board of Elections v. Lopez Torres Notes and Questions Chapter 7 TERM LIMITS A. INTRODUCTION B. THE CONSTITUTIONALITY OF TERM-LIMITING MEMBERS OF CONGRESS U.S. Term Limits, Inc. v. Thornton Notes and Questions Cook v. Gralike Notes and Questions Chapter 8 POLITICAL SPEECH A. INTRODUCTION B. DEFAMATION AND THE PROBLEM OF FALSE STATEMENTS New York Times Co. v. Sullivan Notes and Questions Brown v. Hartlage Notes and Questions United States v. Alvarez Notes and Questions C. MEDIA COVERAGE Mills v. Alabama Notes and Questions Red Lion Broadcasting Co. v. Federal Communications Commission Notes and Questions Miami Herald Publishing Co. v. Tornillo Notes and Questions Federal Communications Commission v. League of Women Voters Notes and Questions Arkansas Educational Television Commission v. Forbes Notes and Questions D. ANONYMOUS SPEECH Brown v. Socialist Workers 74 Campaign Committee (Ohio) Notes and Questions xi

14 Table of Contents McIntyre v. Ohio Elections Commission Notes and Questions Majors v. Abell Notes and Questions Doe v. Reed Notes and Questions E. CIRCULATION OF PETITIONS Meyer v. Grant Buckley v. American Constitutional Law Foundation, Inc Notes and Questions F. GOVERNMENT SPEECH Kidwell v. City of Union Notes and Questions G. PUBLIC EMPLOYEES United Public Workers of America (C.I.O.) v. Mitchell Notes and Questions Pickering v. Board of Education Notes and Questions United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO Notes and Questions United States v. National Treasury Employees Union Notes and Questions H. PATRONAGE Elrod v. Burns Notes and Questions Rutan v. Republican Party of Illinois Notes and Questions I. JUDICIAL CANDIDATES SPEECH Republican Party of Minnesota v. White Notes and Questions Williams-Yulee v. Florida Bar Notes and Questions Chapter 9 CAMPAIGN FINANCE A. INTRODUCTION B. BASIC PRINCIPLES United States v. International Union United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO) Notes and Questions Buckley v. Valeo xii

15 Table of Contents Notes and Questions Note on Political Committees Note on Express Advocacy / Issue Advocacy Distinction C. LIMITS ON CONTRIBUTIONS Notes and Questions Nixon v. Shrink Missouri Government PAC Notes and Questions Randall v. Sorrell Notes and Questions McConnell v. Federal Election Commission Notes and Questions McCutcheon v. Federal Election Commission Notes and Questions D. LIMITATIONS ON EXPENDITURES Federal Election Commission v. National Conservative Political Action Committee Notes and Questions Randall v. Sorrell Notes and Questions First National Bank of Boston v. Bellotti Notes and Questions Austin v. Michigan State Chamber of Commerce Notes and Questions McConnell v. Federal Election Commission Notes and Questions Citizens United v. Federal Election Commission Notes and Questions Note on Superpacs E. COORDINATED EXPENDITURES Colorado Republican Federal Campaign Committee v. Federal Election Commission (Colorado Republican I) Notes and Questions F. GOVERNMENT FINANCING OF CAMPAIGNS Buckley v. Valeo Notes and Questions Arizona Free Enterprise Club s Freedom Club PAC v. Bennett Notes and Questions G. REPORTING AND DISCLOSURE OF CONTRIBUTIONS AND EXPENDITURES Buckley v. Valeo McConnell v. Federal Election Commission Citizens United v. Federal Election Commission xiii

16 Table of Contents Notes and Questions Chapter 10 AT THE POLLS A. INTRODUCTION B. BURDENS ON CASTING BALLOTS Crawford v. Marion County Election Board Notes and Questions Porter v. Bowen Notes and Questions C. CAMPAIGN-FREE ZONES AROUND POLLING PLACES Burson v. Freeman Notes and Questions Chapter 11 COUNTING THE VOTES A. INTRODUCTION B. CONSTITUTIONAL LIMITS Bush v. Gore Notes and Questions C. THE HELP AMERICA VOTE ACT Sandusky County Democratic Party v. Blackwell Notes and Questions D. ALTERNATIVE VOTING SYSTEMS Chapter 12 REMEDYING ERRORS IN ELECTIONS A. INTRODUCTION B. RE-VOTES AND THE UNIFORM DATE FOR FEDERAL ELECTIONS Bell v. Southwell Akizaki v. Fong Fladell v. Palm Beach County Canvassing Board Foster v. Love Notes and Questions C. ADJUSTING THE VOTE TOTALS Ippolito v. Power Scheer v. City of Miami Bradley v. Perrodin Notes and Questions D. STATE REMEDIES FOR FEDERAL ELECTIONS McPherson v. Blacker Coleman v. Franken xiv

17 Table of Contents Notes and Questions E. PUBLIC AND PRIVATE REMEDIES Federal Civil and Criminal Enforcement Remedies for the Wrongful Denial of the Right to Vote Wiley v. Sinkler Notes and Questions Taylor v. Howe Notes and Questions Roe v. Alabama Notes and Questions Remedies for Unsuccessful Candidates Hutchinson v. Miller Notes and Questions Table of Cases TC-1 Table of Authorities TA-1 Index I-1 xv

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