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Election Law @ Moritz

Election Law @ Moritz


Commentary

EL@M Announces New Interactive Map Feature

Scholars have paid more attention to the law of election administration since 2000, but in many ways the field remains undeveloped. For instance, the last book that attempted a comprehensive overview of the voting laws of all then-existing states was McCrary on Elections, a treatise first published in 1897. Needless to say, a lot has changed since then and we need to take a fresh look not only at “hot” issues like voter ID, but also at less talked-about but equally important issues such as funding and administrative structures.

Toward that end, EL@M today presents a series of eight interactive United States maps that allow the user to compare various election law provisions across states using a color coding system. The maps can be divided into two groups of four. The first group compares across 50 states the players in any post-election controversy for President: Recount officials, trial courts, chief election administrators, and state supreme courts (the players for non-Presidential controversies are often different). The second four maps will compare across 25 priority states the rules that different jurisdictions use to decide contests based on four different scenarios: Unverified ballots, polling place problems, provisional ballot mistakes and fraudulent absentee ballots (only selected states with January caucuses or primaries are included in the current installment). Additional maps will be produced in the near future, including an installment on February 1 that will expand the existing “scenarios” maps to include selected states with February primaries.

The project merely attempts to describe the law without developing any conclusions, but nevertheless some preliminary observations are possible. One is that many of the decision-makers in our election system are openly affiliated with political parties in a way that makes them vulnerable to accusations of partisanship. For instance, Republicans have more than a one-vote majority on the Supreme Courts of California, Texas, Alabama, Ohio and Michigan, meaning that in these states a Democratic voting bloc could not prevail even if one Republican justice crossed party lines. Democrats have this type of majority in Florida, Nevada, New Mexico, Louisiana, West Virginia, and Maryland.

Another observation is that black-letter law has no answers for many types of questions that might arise in a post-election dispute. For instance, in Minnesota, Arizona, Rhode Island, New York and Nebraska, it is unclear what court would function as a trial court in a Presidential election contest, or sometimes whether such a contest would be allowed at all. Things become even murkier when looking at how a court would handle a specific election-related problem, such as voter error in filling out provisional ballot paperwork. These laws simply have not been interpreted or revised enough to give much guidance in any but the most foreseeable circumstances. In an election contest, this vacuum may leave courts no option but to fashion their own rules as best they can, again leaving the court vulnerable to accusations of partisanship.

EL@M will continue to publish more maps as research continues. While the addition of a particular map may be helpful, we hope that cumulatively they will add up to more than the sum of their parts. We also hope to find more ways to make cross-state comparison easier and more informative. Please visit our site for future updates.

Commentary

Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

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