Faculty Bibliography

Election law has changed over the last decade. What will access to voting look like in the future?

As the environment for litigation and legislative advocacy becomes increasingly hostile at the federal level, many have turned to state legislative advocacy and state court litigation to protect and promote voting rights. This chapter does not discuss every important reform, nor every troubling restriction, being considered at the state level, but rather outlines some key categories of laws that help, or hinder, historically disenfranchised communities with respect to voting. The first part focuses on some of the main ways that people of color, people with disabilities, young voters, and people involved in the criminal justice system are affected by state voting laws. Part two looks at the relatively recent development of state voting rights acts that seek to provide protections for people of color as federal protections are eroded, and even go well beyond the types of protections that have historically been provided by federal legislation.

It’s well-known that the federal Voting Rights Act is reeling. The Supreme Court nullified one of its two central provisions in 2013. The Court has also repeatedly weakened the bite of the statute’s other key section. Less familiar, though, is the recent rise of state voting rights acts (SVRAs): state-level enactments that provide more protection against racial discrimination in voting than does federal law. Eight states have passed SVRAs so far—five since 2018. Several more states are currently drafting SVRAs. Yet even though these measures are the most promising development in the voting rights field in decades, they have attracted little scholarly attention. They have been the subject of only a handful of political science studies and no sustained legal analysis at all. In this Article, then, we provide the first descriptive, constitutional, and policy assessment of SVRAs. We first taxonomize SVRAs. That is, we catalogue how they diverge from, and build on, federal protections against racial vote denial, racial vote dilution, and retrogression. Second, we show that SVRAs are constitutional in that they don’t violate any branch of equal protection doctrine. They don’t constitute (or compel) racial gerrymandering, nor do they classify individuals on the basis of race, nor are they motivated by invidious racial purposes. Finally, while existing SVRAs are quite potent, we present an array of proposals that would make them even sharper swords against racial discrimination in voting. One suggestion is for SVRAs simply to mandate that localities switch to less discriminatory electoral laws—not to rely on costly, time-consuming, piecemeal litigation. Another idea is for SVRAs to allow each plaintiff to specify the benchmark relative to which racial vote dilution should be measured—not to stay mute on the critical issue of baselines.

Though redistricting has always been a problem in American politics, the outsized role of partisanship in the redistricting process has received unprecedented attention across the nation since 2010. This guide is intended to arm legislators, good government advocates, and activists with the knowledge needed to design an independent redistricting commission for state legislative or congressional districts.

This Article focuses on my work in Illinois to use the Voting Rights Act (VRA) to improve minority representation at the local level, but the themes and findings are applicable across the country because many states have growing minority populations in the suburbs just outside of large city centers. These minority populations tend to be much less segregated than the minority communities in the cities, and so it is more difficult to use Section 2 of the VRA (“Section 2”) to ensure both descriptive and substantive representation. I recommend the use of fair representation systems like ranked choice and cumulative voting (with multi-member districts) to improve minority representation in these decreasingly segregated areas. I introduce three case studies from Illinois to highlight the numerous burdens facing those that seek to reform their local government redistricting systems. I finish with some thoughts on how litigation and legislative advocacy may be used to promote fair representation systems in local government.

In the wake of Shelby County v Holder and the hundreds of restrictions on voting rights passed by state legislatures in the last five years, Ben Cady and Tom Glazer’s article, Voters Strike Back, provides a timely and comprehensive review of the causes of action available for voter intimidation. It provides guidance to litigators on how to use these currently underutilized provisions to protect voters, at a time when their rights are under renewed attack. Cady and Glazer’s article provokes two questions—one normative and one practical. First, should the courts treat voter intimidation committed under color of state law in the same way as that committed by private actors? I posit the answer should be yes. And second, how can litigators encourage the courts to stop ignoring the clear language and legislative history of section 11(b) of the Voting Rights Act?4 The first step is to follow Cady and Glazer’s suggestion to only plead a section 11(b) violation, but litigators should also more clearly articulate the relevant language and history of that provision.

Rowe v Electoral Commissioner is a case about the legislative curtailment of a right. It demonstrates how the French Court intends to deal with constitutional interpretation as well as how it will determine whether a burden on a right is constitutionally valid or not. The right in question in this case is the right to vote, which is, strictly speaking, a statutory right, although it has become such an integral part of the fabric of Australia’s system of representative government, established by the Constitution, that it is treated by the Court as a constitutional right. Even though this case elicited six separate opinions, there is a clear preference by the High Court (five justices to two), in terms of constitutional interpretation, for a progressive or “living force” reading of the constitutional text.