Faculty Scholarship Digest

Steven F. Huefner

 

Articles

Steven F. Huefner, What Can the United States Learn from Abroad about Resolving Disputed Elections, 13 N.Y.U. J. OF LEGIS. & PUB. POL. 523 (2010).

In this article, Steve conducts a comparative analysis of the means democracies around the world use to resolve contested elections. This is an understudied topic, and the reason may be the difficulty of the task Steve admirably takes up. The article takes us from Afghanistan, to Mexico, to Ukraine, and on and on. Steve carefully describes and groups the different approaches to election disputes, particularly presidential elections, and subjects them to analysis of trends of adoption and record of success (or failure).

Steve groups the different kinds of election dispute resolution institutions into four basic categories: “(1) traditional courts, including constitutional courts, (2) legislatures and parliaments, (3) special electoral tribunals, and (4) ad hoc bodies.” The article makes a number of observations about these different approaches. The American model of relying on traditional courts is popular worldwide, as part and parcel of the export of “American-style democracy.” Steve observes, however, that countries following this model may fail to appreciate the political influence felt even by independent judiciaries (as, Steve notes, Ned Foley has shown our framers did), with the result that such adopters “may be perpetuating a design flaw of American democracy.” The article sees much promise in special electoral tribunals, noting their success in emerging democracies, and considers the lessons for U.S. electoral reform.


Steven F. Huefner & Edward B. Foley, The Judicialization of Politics: The Challenge of the ALI Principles of Election Law Project, 79 Brook. L. Rev. 551 (2014).

In this Symposium article, Steve and Ned lend their vast collective experience to discussion of the advantages and challenges presented by the American Law Institute’s Principles of Election Law project, launched in 2010, in which the ALI is attempting to “reformulate” (rather than “restate,” which is not possible given the utter lack of consensus among the states) certain ripe areas of the election administration branch of Election Law. The article begins by discussing the special challenges of such a project in Election Law, which Steve and Ned claim is unique as a result of the confluence of two traits: (i) its status as “meta-law”--- the law that determines the selection of who will determine all the other laws; and (ii) its relation to the political question doctrine and the minimal historic role for courts --- both in the framer’s vision and in practice for all of U.S. history up to fifty years ago --- in deciding questions of election administration.

With this background, the article explores the role for the ALI and offers some substantive input regarding two specific areas, the development of neutral principles for resolving election disputes and the development of methods for voting other than at the voting booth on election day. With regard to the former, the article discusses the ALI project’s efforts to develop neutral principles for resolving electoral disputes and the practical political challenges to such efforts, as well as ALI efforts to explore the design of special institutions to resolve electoral disputes and to establish a model calendar that sets mandatory timeframes for resolving such disputes. With regard to “non-precinct voting,” Steve and Ned point to a number of strong advantages (from an electoral administration perspective) for early in-person voting in comparison to expanded absentee/mail-in voting. They note the appeal of the latter approach, however, and describe the ALI projects consequent effort to establish “best practices” for jurisdictions that choose to implement either or both of these approaches.


Steven F. Huefner, Congressional Searches and Seizures: The Place of Legislative Privilege, 24 J. L. & POLITICS 271 (2008).

The U.S. Constitution provides that “for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.” The “Speech or Debate Clause” received increased attention recently as a result of the FBI’s unprecedented search of the congressional office of then-Representative William Jefferson as part of an investigation that led to Jefferson’s indictment on bribery and other charges. In this article, Huefner provides a thorough historical, doctrinal and theoretical study of the Speech and Debate Clause to determine the appropriate scope of the privilege it provides to lawmakers – in particular, in addition to the absolute immunity it provides against both civil and criminal liability for representatives’ legislative work, the extent to which the Clause bars executive searches.

Huefner’s conclusion on this ultimate issue holds a middle ground: within the Congressional Office buildings, a presumption of privilege against search should prevail that could only be overcome in certain, limited, circumstances. While not seeking an absolute privilege, the article’s approach would provide more protection in this particular context than lower courts have recognized to date. Huefner uses the Clause’s evident purpose to protect a robust legislative branch and interpretations of the Clause in other contexts to defend this interpretation, while thoroughly exploring alternatives and potential critiques of his argument.


Steven F. Huefner, Lessons From Improvements in Military and Overseas Voting, 47 U. Rich. L. Rev. 833 (2013).

Steven Huefner contributes this article as part of the University of Richmond Law Review’s symposium, Election Law: Beyond the Red, Purple, and Blue. Huefner considers recent efforts to improve the voting experience of military and overseas voters, recent controversies, and broader implications of those efforts on various early and absentee voting methods increasingly available to other U.S. voters. Huefner is well equipped to examine these issues having served as the reporter of the Uniform Law Commission’s drafting committee that produced the Uniform Military and Overseas Voters Act (UMOVA) and associate reporter for the American Law Institute’s election law project on post-election dispute resolution and nontraditional voting processes. After sketching the evolution of UOCAVA voting (so named because of a federal law, the Uniformed and Overseas Citizens Absentee Voting Act), Huefner explores three recent controversies illustrating just how important these votes can be: Florida in 2000, where Bush won the state only after the inclusion of late-arriving military ballots, Virginia in 2008, where late-arriving ballots could have impacted the outcome, and Ohio in 2012, where the state was required to provide early voting to military and nonmilitary voters alike (see more on this below). Huefner sees a cross-fertilization between UOCAVA voting and traditional voting. As such, he concludes with some general principles to be considered with all convenience voting, both early in-person voting and no-excuse absentee voting.


Steven F. Huefner, Why the Ohio Early Voting Case Is Not a Threat to Military Voting Accommodations, 74 Ohio St. L. J. Furthermore 89 (2012), http://moritzlaw.osu.edu/students/groups/oslj/files/2013/04/Furthermore.Hueffner.pdf.

In this article, Steven Huefner provides the rest of the story surrounding the Ohio 2012 election law dispute over early in-person voting (introduced in the previously summarized article). He predicts that the equal protection argument that led to the restoration of early voting in Ohio on the final three days before the presidential election in 2012 will not undermine other military voting accommodations. The case, Obama for America v. Husted, 697 F.3d 423 (6th Cir. 2012), revolved around a new Ohio law permitting county boards of elections to offer early in-person voting only to the military voters, but halted voting on the Friday before Election Day for everyone else. Finding this a new burden on the right to vote unjustified by a sufficiently weighty state interest, the district court enjoined Ohio from halting early voting for all but military voters. The Sixth Circuit affirmed. The polls remained open for early voting Saturday, Sunday and Monday before Election Day 2012. The rest is history. Huefner turns to the lasting impact of the case and addresses the arguments made by military organizations that the outcome threatens all assistance to military voters. He concludes it “is a highly unlikely result” and there is “very little reason to worry about the constitutionality of other military voting accommodations.” Consequently, Obama for America provides little precedential value in undoing the significant improvements developed for military and overseas voters.


Steven F. Huefner, Don’t Just Make Redistricters More Accountable to the People, Make Them the People, 5 DUKE J. OF CONST. L. & PUBLIC POLICY 37 (2010).

This symposium contribution considers methods of creating an apolitical resdistricting process. (While noting questions about the desirability of creating such process, the article presumes for its discussion that doing so would be desirable.) By apolitical redistricting, Steve means “redistricting that is not allowed to intentionally promote the broader partisan political interests of those controlling the redistricting,” as opposed to a different meaning---redistricting that is simply blind to partisan consequences. The article pays close attention to extant redistricting experiences and the records of efforts to depoliticize the process, including description of current efforts in California and Ohio. One conclusion Steve draws from this analysis is that “[w]hen redistricting criteria are presented prepackaged by a particular reform community, they can be easy targets for opponents to attack,” since almost all “potential criteria has some vulnerabilities to be exploited,” prone to be “rejected as ‘elite’ meddling.”

One alternative, Steve suggests, would be more politics, rather than less. Steve suggests the successful path will involve a “citizen-led redistricting institution,” such as a citizen assembly or some sort of public mapmaking competition. Difficult as this may be to envision, Steve emphasizes that other reform efforts have regularly failed and that this approach could overcome some of the vulnerabilities that have led to those failures, particularly the low political salience of redistricting among the general public and “public skepticism towards elite and unaccountable commissions.” Steve applies these insights to the recent efforts in California and Ohio, including the Joyce Foundation’s current campaign for “Accountable Redistricting” that Election Law @ Moritz is participating in.


Book Reviews

Steven F. Huefner, Just How Settled Are the Legal Principles that Control Election Disputes?, 8 ELECTION L. J. 233 (2009).

“Much less settled than the book’s author would lead you to believe” summarizes Steve’s answer to the titular question posed in his review of the second edition of Barry Weinberg’s THE RESOLUTION OF ELECTION DISPUTES: LEGAL PRINCIPLES THAT CONTROL ELECTION CHALLENGES. The review describes Weinberg’s book, originally published in 2006, as the first of its kind in the understudied field of post-election remedies (a field to which both Steve and Professor Edward Foley have subsequently made significant contributions). The book is organized around six chapters which use digests of 58 state election cases to present “a set of legal principles governing election contests.”

While praising the book as a “useful reference work and primer on key issues,” the review expresses concern with the book’s pronouncement of “definitive legal propositions” (e.g., courts lack jurisdiction if a fundamental statutory procedure has not been satisfied, and “there is no common law basis for an election challenge”) that are, in some instances, supported only by anecdotal evidence of selected cases and, with regard to some, are overstated, contested across states, or wrong. While Steve considers that such summaries overlooking nuance and variation may be useful for emerging democracies, a “key audience for IFES publications” such as this one, more caution is needed for the domestic user than the too-little-too-late caveat in the book’s conclusion provides. Separately, Steve questions the book’s omission of any discussion “of proportional deduction as a possible remedy for unlawful voting when the beneficiary of specific unlawful votes cannot be identified.”

Notwithstanding these criticisms, Steve considers the book a rich set of materials for discussion by teachers and students and a useful idea-facilitator for election lawyers in what remains an under-served area.


Reports

Steven F. Huefner, Daniel P. Tokaji, & Edward B. Foley (with Nathan A. Cemenska)  From Registration to Recounts Revisited: Developments in the Election Ecosystems of Five Midwestern States (2011)

This 90-page report is a follow-up to 2007's widely acclaimed study by the authors of the election-administration response in five key Midwestern states (Illinois, Michigan, Minnesota, Ohio, and Wisconsin) to the Help America Vote Act of 2002. The report provides objective and insightful analysis into developments in election administration institutions and culture, “convenience voting” (e.g., early voting), other legislative changes (e.g., voter I.D. laws), post-election processes (including a close look at the resolution of the very close 2008 Minnesota senate election) and voter registration and databases (in which a federal “matching” requirement has produced much litigation).

In canvassing these areas, the authors continue to evaluate systems on three core values: “access, integrity, and finality.” On these criteria, the report documents both successes and failures over the past four years, though much work clearly remains to be done. The report points to specific areas of vulnerability (e.g., Illinois badly needs reform of its post-election dispute processes) and offers specific suggestions for addressing them. Interestingly, voting technology and the validity of provisional ballots were less of an issue in 2008 than they had been in recent elections and receive consequently less attention in this report. The book builds on the incredible repository of knowledge accumulated by Election Law @ Moritz, while also continuing to draw on insights from the many different actors and stakeholders in the election systems of these states.


Symposias

Steven F. Huefner, A Champion of State Constitutions, 75 ALBANY L. REV. 1673 (2012).

This article is derived from Steve’s remarks at a Symposium dedicated to Chief Justice Christine Durham of the Utah Supreme Court, for whom Steve clerked two decades ago. Steve’s remarks tell the story encapsulated in his title. Chief Justice Durham has spent her judicial career advocating a robust role for state constitutionalism. Her tenure on the Utah Supreme Court involved first a decision that Utah’s Equal Protection Clause was not controlled by federal jurisprudence, then dissents by Justice Durham arguing for state constitutional distinctions and, finally, watershed majority opinions based on state constitutional differences and others following a “primacy approach,” deciding cases on state constitutional grounds first, even if federal constitutional law would provide the same answer. Through published scholarship and service to many institutions (e.g., the American Law Institute), Justice Durham’s impact on state constitutional law has also spread well-beyond Utah’s borders.