Election Law Blog

Volume 121, Issue 7
May 2012

• 1584
  Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments
  Richard M. Re & Christopher M. Re
  121 Yale L.J. 1584 (2012).

  The Reconstruction Amendments are justly celebrated for transforming millions
  of recent slaves into voting citizens. Yet this legacy of egalitarian enfranchisement had a flip side.
  In arguing that voting laws should not discriminate on the basis of morally insignificant statuses,
  such as race, supporters of the Reconstruction Amendments emphasized the legitimacy of
  retributive disenfranchisement as a punishment for immoral actions, such as crimes. Former
  slaves were not just compared with virtuous military veterans, as commentators have long
  observed, but were also contrasted with immoral criminals. The mutually supportive
  relationship between egalitarian enfranchisement and punitive disenfranchisement—between
  voting and vice—motivated and shaped all three Reconstruction Amendments.
  Counterintuitively, the constitutional entrenchment of criminal disenfranchisement facilitated
  the enfranchisement of black Americans. This conclusion complicates the conventional
  understanding of how and why voting rights expanded in the Reconstruction era.

  Criminal disenfranchisement’s previously overlooked constitutional history illuminates
  four contemporary legal debates. First, the connection between voting and vice provides new
  support for the Supreme Court’s thoroughly criticized holding that the Constitution endorses
  criminal disenfranchisement. Second, Reconstruction history suggests that the Constitution’s
  endorsement of criminal disenfranchisement extends only to serious crimes. For that reason,
  disenfranchisement for minor criminal offenses, such as misdemeanors, may be
  unconstitutional. Third, the Reconstruction Amendments’ common intellectual origin refutes
  recent arguments by academics and judges that the Fifteenth Amendment impliedly repealed the
  Fourteenth Amendment’s endorsement of criminal disenfranchisement. Finally, the historical
  relationship between voting and vice suggests that felon disenfranchisement is specially
  protected from federal regulation but not categorically immune to challenge under the Voting
  Rights Act.

  Read more…

• 1672
  Due Process as Separation of Powers
  Nathan S. Chapman & Michael W. McConnell
  121 Yale L.J. 1672 (2012).

  From its conceptual origin in Magna Charta, due process of law has required that
  government can deprive persons of rights only pursuant to a coordinated effort of separate
  institutions that make, execute, and adjudicate claims under the law. Originalist debates about
  whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive
  due process” have obscured the way that many American lawyers and courts understood due
  process to limit the legislature from the Revolutionary era through the Civil War. They
  understood due process to prohibit legislatures from directly depriving persons of rights,
  especially vested property rights, because it was a court’s role to do so pursuant to established
  and general law. This principle was applied against insufficiently general and prospective
  legislative acts under a variety of state and federal constitutional provisions through the
  antebellum era. Contrary to the claims of some scholars, however, there was virtually no
  precedent before the Fourteenth Amendment for invalidating laws that restricted liberty or the
  use of property. Contemporary resorts to originalism to support modern substantive due process
  doctrines are therefore misplaced. Understanding due process as a particular instantiation of
  separation of powers does, however, shed new light on a number of key twentieth-century cases
  which have not been fully analyzed under the requirements of due process of law.

  Read more…

• 1808
  Redistricting Commissions: A Better Political Buffer?
  Bruce E. Cain
  121 Yale L.J. 1808 (2012).

  The new institutionalism in election law aims to lessen the necessity of court
  intervention in politically sensitive election administration matters such as redistricting by
  harnessing politics to fix politics. Many hope that independent citizen commissions (ICCs) will
  improve the politics associated with drawing new district boundaries. As the recent round of
  redistricting comes to a close, I offer some observations about ICCs as effective court
  redistricting buffers. My basic points are as follows. Independent citizen commissions are the
  culmination of a reform effort focused heavily on limiting the conflict of interest implicit in
  legislative control over redistricting. While they have succeeded to a great degree in that goal,
  they have not eliminated the inevitable partisan suspicions associated with political line-drawing
  and the associated risk of commission deadlock. Additional political purity tests and more careful
  vetting of the citizen commissioners are not the solution. I argue that ICCs in the future should
  adopt a variation of New Jersey’s informal arbitration system as a means of reducing partisan
  stakes and encouraging coalition building among stakeholders.

  Read more…

• 1846
  Districting for a Low-Information Electorate
  Christopher S. Elmendorf & David Schleicher
  121 Yale L.J. 1846 (2012).

  Most commentary on redistricting is concerned with fairness to groups, be they
  racial, political, or geographic. This Essay highlights another facet of the redistricting problem:
  how the configuration of districts affects the ability of low-information voters to secure
  responsive, accountable governance. We show that attention to the problem of voter ignorance
  can illuminate longstanding legal-academic debates about redistricting, and that it brings into
  view a set of questions that deserve our attention but have received little so far. District designers
  should be asking how alternative maps are likely to affect local media coverage of representatives,
  as well as the “branding” strategies of political party elites. Bearing these questions in mind, we
  offer some tentative suggestions for reform.

  Read more…

• 1888
  Weightless Votes
  Joseph Fishkin
  121 Yale L.J. 1888 (2012).

  Does “one person, one vote” protect persons, or voters? The Court has never
  resolved this question. Current practice overwhelmingly favors equal representation for equal
  numbers of persons. Opponents charge, however, that this approach dilutes the “weight” of
  some individual voters’ votes. This Essay examines what that might mean, and concludes that
  there is no coherent individual interest in the “weight” of a vote. It argues that the one person,
  one vote doctrine is really about something else: protecting the political power of numerical
  groups. In light of this conclusion, the last section of this Essay explores whether the numerical
  groups this doctrine protects ought to include all persons living in a jurisdiction, or only the
  citizens of voting age.

  Read more…

• 1912
  Recognizing Character: A New Perspective on Character Evidence
  Barrett J. Anderson
  121 Yale L.J. 1912 (2012).

  Courts have historically regulated the use of character in trials because of its
  potential to prejudice juries. In order to regulate this type of proof, courts must be able to
  recognize what is and is not character evidence, but past attempts to define character in the law
  of evidence have been unsatisfactory. This Note proposes a new framework to help courts
  unravel this age-old mystery. By considering legal scholarship in conjunction with psychological
  research and employing common tools of statutory interpretation, this Note contends that proof
  must have two components for it to be regulated by the character scheme in the Federal Rules of
  Evidence: propensity and morality. It then explains the elements of each component under the
  Federal Rules regime, examines several evidentiary examples drawn from real cases to illustrate
  how courts would apply the proposed framework, and concludes by discussing the broader
  implications of this new perspective on character evidence.

  Read more…

• 1970
  Cross-National Patterns in FCPA Enforcement
  Nicholas M. McLean
  121 Yale L.J. 1970 (2012).

  This Note undertakes an empirical examination of U.S. enforcement actions under
  the Foreign Corrupt Practices Act (FCPA) in order to explore the cross-national patterns
  associated with the United States’ international antibribery enforcement. I investigate a number
  of possible determinants of FCPA enforcement, including variation in the level of U.S. foreign
  direct investment (FDI), cross-national variation in corruption levels, the level of foreign
  regulatory and enforcement cooperation with the United States, and U.S. foreign policy
  interests. I find that higher levels of U.S. FDI and higher levels of corruption are significantly
  associated with increased FCPA enforcement, as is the presence of bilateral mechanisms of
  enforcement cooperation. In contrast, other variables—including the level of foreign policy
  alignment between the host nation and the United States—do not appear to be associated with
  variation in FCPA enforcement. In addition, I find that cross-national variation in the number of
  FCPA cases in a given country is much more closely associated with actual recorded experience
  with corruption (as measured by cross-national survey instruments) than with more widely used
  measures of corruption perceptions. Finally, I employ data on past enforcement actions to
  generate a cross-national measure of the “FCPA enforcement-action intensity” of U.S. FDI, and I
  consider the potential use of such an index as a measure of FCPA country risk.

  Read more…

121 Yale L.J. 2013 (2012).