Faculty Scholarship Digest

Daniel P. Tokaji

 

Articles

Daniel P. Tokaji, Voter Registration and Election Reform, 17 WM. & MARY BILL OF RIGHTS L.J. 453 (2008).

This article provides a comprehensive discussion of voter registration, a subject that has received little academic attention relative both to such issues as redistricting and campaign finance and to the scope of registration litigation. Voter registration dates to the early 19th century, but became widespread after the Civil War and, by World War I, most states had substantial voter registration laws. Voter registration was designed to make sure that only eligible voters voted and that they voted only once, and such rules were needed in some areas to prevent abuse. At the same time, voter registration rules were also used from the beginning (all over the country and by both political parties) to disenfranchise eligible voters.

Although voter registration is overwhelmingly a matter of state law, three federal statutes have played (and still play) a significant role in voter registration: the Voting Rights Act (whose significant provisions are before the Supreme Court this term), the National Voter Registration Act (the so-called “Motor Voter” law, though it does much more), and the Help America Vote Act (enacted following the 2000 election). Tokaji covers the registration significance of each of these statutes, analyzing their strengths and weaknesses.

Notwithstanding the developments the article traces, voter registration rules continue to restrict voting in problematic ways, and the article details some of the statistics and the reasons, carrying the story of registration litigation up to 2008. The article concludes with an agenda for reform, which starts from the premise that while “the existing election administration system is quite effective in promoting integrity, there is considerable room for improvement when it comes to access.”

Drawing on the “states as laboratories” tradition, Tokaji analyzes a series of reforms that states could experiment with to increase voter participation. The more modest proposals — registration portability, automatic voter registration, and election day registration — have already been used in some states, and the article documents their impact in increased registration and other effects, such as decreased reliance on provisional ballots. The article also discusses more dramatic possible reforms, such as federalization of registration, universal registration (where the government takes an affirmative role in ensuring registration, a common approach in other industrialized democracies), and compulsory registration and voting (which is also used in some other countries).


Daniel P. Tokaji, Voter Registration and Institutional Reform: Lessons from a Historic Election, 3 HARV. L. & POL’Y REV. (Online) (Jan. 22, 2009).

This article adds to Tokaji’s previous scholarship on voter registration, including the piece discussed above, from a post-2008 election perspective. Voter registration was the dominant litigation issue of the 2008 election cycle, and the article details the key elements of that litigation (in which Tokaji participated). The article highlights the role of local implementation of voter registration rules and the absence of a private right of action under federal law as key source of continued problems and uncertainty, notwithstanding the enactment of the Help America Vote Act of 2002.

The article then assumes the ambitious tasks of mapping a future direction for voter registration reform. Tokaji suggests that instead of focusing on the longstanding tension between access and integrity that has dominated voter registration battles, reforms should instead turn to “confronting decentralization and partisanship in the administration of elections.” Along these lines, the article points to the Canadian model of universal, federal registration, which has produced a 93% registration rate among eligible voters (compared to less than 70% in the U.S.) and analyzes some of the advantages and difficulties posed by federalization.


Daniel P. Tokaji, Desegregation, Discrimination and Democracy: Parents Involved’s Disregard for Process, 69 Ohio St. L. J. 847 (2008).

This essay, part of a symposium of the Ohio State Law Journal, examines the Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District, No. 1, which struck down local school desegregation plans, from a perspective of democratic governance and the federal courts’ role in sustaining or constraining such governance. The essay argues from both normative and descriptive perspectives that desegregation cases from Brown forward can and should be partly understood on democratic process grounds, along the lines made famous by John Hart Ely in Democracy and Distrust. Tokaji contends “that the exclusion of African-Americans from electoral politics was a critical component of the justification for the line of desegregation cases” and that reduction of that political exclusion partly explained the subsequent retreat of federal courts from superintendence of local school boards. The essay takes the Parents Involved Court to task for making “no serious attempt to ground its discrimination doctrine in democratic theory.” The article also tracks the “anti-discrimination” cases from Bakke forward, finding in Parents’ Involved the ultimate (subsilentio) rejection of an anti-subordination understanding of discrimination for an anti-differentiation understanding: “differentiation = discrimination = (presumptive) constitutional violation.”

While conceding that this understanding is supported by affirmative action precedents, the essay challenges the Court to consider “why . . . competing visions of racial equality are better resolved by the federal courts than by democratically elected bodies.” The final part of the essay, again carefully and expressly interweaving normative and descriptive arguments, sketches a path towards addressing such questions, suggesting “that questions about the fairness of the democratic process ought to be central in determining how closely to scrutinize the products of that process.” Pessimistic about the Court engaging in such analysis in the immediate future, the essay concludes with some legislative suggestions for promoting local school integration.


Daniel P. Tokaji, Responding to Shelby County: A Grand Election Bargain, 8 Harv. L. & Pol'y Rev. 71 (2014).

In the wake of the Shelby County Supreme Court decision invalidating portions of the Voting Rights Act, this article closely examines what the Voting Rights Act was --- and was not --- accomplishing and proposes a “Grand Bargain,” federal legislation that both eases voter registration and includes a photo ID requirement, as a path forward. The article begins with a close examination of the visible impact since the year 2000 of the preclearance provision of the Votings Rights Act that the Supreme Court struck down in Shelby County. This record demonstrates that the overwhelming impact of the Voting Rights Act in recent years regarded “vote dilution” (e.g., redistricting, at-large elections) rather than “vote denial” (barriers to actually casting a vote), which were rarely addressed under the Voting Rights Act. The article then examines current data on voting participation (as Congress did in enacting the Voting Rights Act in 1965). The conclusion is that while blacks vote at much closer to the same rate as whites (even matching them in the previous two presidential elections), “Hispanic and Asian American voters are much less likely to . . . vote . . . [and t]hose with low income and educational attainment levels vote at much lower levels.” At the same time, the next section’s review of the literature demonstrates, easing voter registration (e.g., same-day registration) is the most effective way to increase participation, far more so than “convenience voting” (e..g, early or absentee voting). A final descriptive section looks closely at the impact of voter ID laws on participation—on which the evidence is mixed. While no fan of such laws, Dan concludes that a federal law requiring photo-ID with an affidavit exception for those without such ID (such as the version of the South Carolina law the Justice Department precleared before Shelby County), would likely not have a great net impact on participation, particularly as it would preempt more restrictive state laws, such as that recently enacted in North Carolina.

With all this background, the article proposes its grand bargain: “liberalized voter registration and a uniform ID requirements for federal elections.” The article sets out the substance of the proposed legislation, sets out Congress’ constitutional authority under the Elections Clause, the political plausibility of this quid pro quo (including evidence that in some cases eased registrations has helped Republicans as much or more than Democrats) and explains how Congress could encourage the states to adopt similar legislation.


Dan Tokaji, Commentary, The Justiciability of Eligibility: May Courts Decide Who Can Be President?, 107 MICH. L. REV. FIRST IMPRESSIONS 31 (2008).

In this article, Tokaji tackled the question whether lawsuits seeking to challenge the eligibility of John McCain (because he was born in the Panama Canal Zone), Barack Obama (on the allegation that he was born in Kenya rather than Hawaii), or any other candidate could be heard in federal court in the first instance. Tokaji concluded that they could not. The article carefully describes how both rules of standing and the political question doctrine would likely bar adjudication.

Standing issues come in two flavors: Article III standing (the constitutional limits on federal courts) and prudential standing (“judicially self-imposed limits on the exercise of federal jurisdiction”). The article contends that both doctrines would likely block such lawsuits. Article III standing would be lacking because its injury-in-fact requirement, which requires a “personal stake,” likely could not be met. For example, Tokaji notes, the Supreme Court found the “‘generalized interest of all citizens in constitutional governance” insufficient in a lawsuit based on the constitutional bar to members of Congress serving in the executive branch. Even were this barrier overcome, say by the democratic party nominee suing the republican party nominee claiming he or she did have a personal stake, Tokaji argues that prudential standing would present “formidable difficulties” for such a lawsuit because of the generalized interest at stake and perhaps because of a lack of institutional competence. Moreover, the claim might not be justiciable because of the political question doctrine, under the argument that determination of presidential eligibility is constitutionally committed to “a coordinate political department.” Tokaji explores the possibility of two such alternatives: a state court claim (since Article II, Section I gives state legislatures authority to choose the manner of picking electors) or a congressional decision as a part of the electoral vote-counting process.


Daniel Tokaji & Owen Wolfe, Baker, Bush, and Ballot Boards: The Federalization of Election Administration, 62 Case W. Res. L. Rev 969 (2012).

Dan Tokaji and Owen Wolfe (Moritz ’12) contribute this piece to Case Western Reserve Law Review’s Symposium, Baker v. Carr After 50 Years: Appraising the Reapportionment Revolution. Tokaji and Wolfe see the broader impact of Baker as increasing the federal judiciary’s involvement in election administration (the set of electoral practices like voting machines, ID, registration, provisional ballots, and the like). While mostly the domain of the states, they see increasing federal intervention in this area. The authors start with an interpretation of Baker, not as a federalization of redistricting by courts over legislatures, but as essentially a federalism case—one where the states lose to the federal government. Just as Baker changes everything in the redistricting world, along comes Bush v. Gore which elevates federal judicial superintendence over election administration. Make no bones about it, Tokaji and Wolfe see this as a good thing. Just as for the past fifty years the federal courts played a larger role in redistricting because state and local officials could not be trusted as disinterested actors, federal courts are needed in election administration because of their insulation from partisan politics.


Daniel P. Tokaji, The Obliteration of Equality in American Campaign Finance Law: A Transborder Comparison, 5 J. Parliamentary & Political L. 381 (2011).

This article in a Canadian journal takes a comparative look at the constitutionality of campaign finance regulation. The Supreme Court’s recent decision in Citizens United held that corporations have a constitutional right to make independent expenditures in federal elections. This has a number of consequences that have drawn heavy criticism. In Dan’s view, those objections miss “the most noxious feature of Citizens United: its rejection of equality as a democratic value.” Dan describes two kinds of equality for these purposes: “electoral equality,” which is equal impact on who is elected to office; and “policy-making equality,” which is influence on elected officials in office. To be sure, the article acknowledges, valuing such equality has been rejected as a justification for campaign finance regulation since Buckley v. Valeo in 1976. Yet, Dan demonstrates, the Court had occasionally given weight to both electoral-equality and policy-making equality considerations, albeit under a rubric of “anti-corruption,” in certain cases. In Citizens United, the article explains, the Court slammed shut even this backdoor consideration of equality, leaving equality as “the Voldemort of U.S. campaign finance jurisprudence[,] . . . the idea that must not be named.” Since “the really important question [in campaign finance] is how to promote equality without diminishing competition,” the complete banishment of equality even from the discussion (a discussion now relegated to a battle between liberty and anti-corruption), is highly destructive to the political system.

Dan contrasts this outcome with the Canadian approach, describing three leading cases in which Canada’s Supreme Court recognized equality as a legitimate interest in campaign finance regulation. Even though in two of the three cases the Court struck down the equality-protecting provisions because of countervailing harms, the article demonstrates the substantial difference that results from allowing equality to be a part of the discussion. As far as a change in U.S. law goes, the article sees little other than a (one-of-five Justice) change in the makeup of the Supreme Court that will change the course of U.S. campaign finance jurisprudence.


Daniel P. Tokaji, The Future of Election Reform: From Rules to Institutions, 28 YALE L. & POL. REV. 125 (2009).

Since the terrible electoral controversy of the the 2000 presidential election, election reform has been a hot topic. In this article, Dan examines the current state of such efforts. His thesis is twofold. First, the article argues that the focus of reform debates—which to date have focused on the competing issues of access and integrity—need to shift from “the rules governing elections to the institutions responsible for running them.”

Second, on the nature of institutional reform, the article offers a partial dissent from the “new institutionalism” offered by other leading election law scholars who do share Dan’s advocacy of a “turn toward institutional solutions.” The article contends that the primary direction of reform should be to replace partisan state election administration officials (the dominant model in the United States) with politically independent local authorities. By arguing from both international and domestic examples, Dan paints a more optimistic picture of the possibility of obtaining such reforms than some other new institutionalists.

The article also doubts reforms that would depend on federal administrative oversight. In addition to such advantages of decentralization as the difficulty of national electoral capture by one party, Dan describes the experience of the federal Election Assistance Commission under the Help America Vote Act of 2002 as “call[ing] for extreme caution in this area.”

Finally, Dan urges a continued significant role for federal courts in ensuring fair elections. He argues that while nonpartisan officials and “incentives [that] align sufficiently with the public interest” would reduce the need for federal court intervention (and might be preferable), “that is not the present reality, nor is it likely to be the reality for the foreseeable future.” To this end, Dan suggests means by which federal courts can show less deference to decisions of partisan state officials and urges “a more generous standard for recognizing a private right of action in claims challenging the conduct of partisan election officials.”


Dan Tokaji, Teaching Election Administration, 56 ST. LOUIS UNIV. L.J. 675 (2012).

Election administration is a part of the Election Law course, Dan writes, that students usually have had direct experience with, unlike the other topics such as drawing district lines, campaign finance and getting on the ballot. As a consequence of the subject’s resulting accessibility, Dan, the co-author of a leading casebook in Election Law, considers election administration “an excellent jumping-off point for introducing the conceptual framework of election law.” In this article, Dan discusses his approach to teaching election administration, starting with the Florida dispute in the 2000 presidential election and the resulting Bush v. Gore and Help America Vote Act. Dan then moves to what Election Law @ Moritz has labeled the “election ecosystem,” the interrelated rules of state law and local practice that still largely govern election administration, including voting technology, voter identification and voter registration. A final section Dan recommends is electoral institutions—who oversees and manages this process. In this portion Dan recommends some comparative law consideration as, from a world-wide perspective, the U.S. approach of having elections administered by directly interested political officials is anomalous. For each of these areas Dan suggests both techniques and supplementary material for addressing the subjects, as well as the value of the coverage and the broader points students may learn.


Daniel P. Tokaji, Lowenstein Contra Lowenstein: Conflicts of Interest in Election Administration, 9 ELECTION L. J. 421 (2010).

This article is part of a festschrift celebrating the work of Professor Daniel Lowenstein in the field of Election Law. Dan has some very fundamental disagreements with Professor Lowenstein and fleshes out some of those disagreements in this piece, but with an attitude of profound respect and scrupulous fairness to Professor Lowenstein’s positions. Readers of this article are treated to a careful explication of leading, opposing positions on several election law issues. Professor Lowenstein, “[a]s much as any other scholar in the field, . . . has voiced suspicion of judicial intervention in the conduct of elections,” criticizing judicial intervention from the redistricting context to election administration. Dan, in contrast, believes that fairness values more often require judicial intervention in election matters as the best alternative. The article concisely and clearly sets out arguments on both sides of this issue, with a foray into interpretation of Bush v. Gore, where Lowenstein and Tokaji also fundamentally disagree for reasons that Dan sounds in methodological differences in reading cases, most importantly Dan’s view that we cannot “assess the best interpretation of a case (or a line of cases) without a background conception of the proper role of courts in the democratic process.”

The article then turns to its primary focus: Dan’s view (contrary to Lowenstein) that the federal judiciary is the institution best positioned to advance fair election administration and that it should act accordingly—a view that Dan has previously supported and stands perhaps as the leading current advocate. In keeping with the spirit of the festschrift, Dan uses Lowenstein’s own work from earlier in Lowenstein’s career regarding campaign finance to support the Tokaji view here. In a 1989 article regarding campaign finance reform, Lowenstein closely analyzed campaign donations and argued that their regulation required an acceptance that they represent a fundamental conflict of interest. After describing Lowenstein’s argument, Dan imports it into the election administration context to contend that conflicts of interest there prevent exclusive reliance on legislative (i.e., nonjudicial) regulation. After careful application of the framework, Dan discusses some of the pathways for judicial intervention that are likely to make judicial oversight of election administration most successful.


Daniel P. Tokaji, Public Rights and Private Rights of Action: The Enforcement of Federal Election Laws, 44 INDIANA L. REV. 113 (2010).

In this article Dan returns to a theme of his recent scholarship for which he is a leading proponent among election law scholars: the federal judiciary is needed to fill an active role in election administration. In this article, Dan focuses on a significant barrier to judicial oversight of elections: Supreme Court doctrine limiting the ability of private parties to sue to enforce federal statutes. Dan begins by discussing “the precipitating causes of and the justifications for the judiciary’s more active involvement in overseeing election[s].” This part of the article contains an instructive comparative section which examines the systems of election administration around the world that have accompanied the proliferation of democracy, and notes the peculiar combination of decentralization and partisanship that characterizes the American approach. In particular, Dan compares the United States to the very different archetypical systems of India and France “[t]o understand the functional role that federal courts can and should play in the United States.”

The article then turns to its main concern, the power of federal courts to play their role of delineating and enforcing critical federal election laws (most especially HAVA) in law suits brought by private parties. Private rights of action can be implied directly into federal statutes and through 42 U.S.C. § 1983, though over the past thirty-five years the Supreme Court has greatly restricted such actions. For federal statutes, Dan explains, doctrine now focuses on “whether the statutory text shows a congressional intent to create both an individual right and a private remedy.” For suits under § 1983, which allows suits for those whose federal rights have been violated by those acting under color of state law, the Court now essentially requires the absence of other significant important enforcement schemes and that the statute actually confer rights to the putative plaintiff. Dan critically examines the case law regarding the impact of efforts to provide uniform and effective enforcement of three major federal laws relating to election administration, providing both a clear descriptive snapshot and a forcefully argued conclusion about where lower court decisions have veered from Supreme Court direction. While there are some provisions enforceable through private rights of action under existing doctrine, Dan concludes that much of federal law, including crucial parts of HAVA, are not. In a last section, the article argues for a more generous approach to private rights of action in the federal election statute context, because of the collective interest such statutes protect and the unique and overriding need for a neutral partially centralized arbiter (i.e., the federal courts) in this area. Dan suggests ways in which doctrine could reasonably evolve and responds to some basic potential objections to his approach.


Books

Daniel P. Tokaji, Election Law in a Nutshell (2013).

Twenty years ago, the field of Election Law barely existed. There were a handful of courses that looked at election law issues, known in some quarters as Law of the Political Process or Law of Democracy or Voting Rights. Spurred on by the 2000 presidential election and ensuing controversy, interest in election law has grown exponentially. But if there is one tell-tale sign that a field of law has matured, it is when West publishes a nutshell on it. Well, as Daniel Tokaji puts it, “Election Law has arrived.” Its arrival is courtesy of Tokaji himself who was given the honor of summarizing the law in this field in his new book, Election Law in a Nutshell. The book is designed to be a helpful resource to students, essentially a supplemental text to go along with whichever one of the four, soon to be five, Election Law casebooks they use. But it is more than just a student resource. Well over 300 pages explore everything from the history of voting rights, representation and districting, election administration, direct democracy, political parties, and campaign finance. This book will undoubtedly be of great assistance to practitioners, election officials, candidates, legislators, and I imagine even a few Election Law professors to boot. This audience undoubtedly shares common ground—a passionate belief in democracy, a desire to see it succeed around the world, and fierce disagreement about how it should work. Rather than take a position on these essential debates, Tokaji’s book introduces the issues to the reader and provides a springboard for future research or study.


Book Reviews

Daniel P. Tokaji, Laboratories of Election Reform, 8 ELECTION L.J. 267 (2009).

Dan’s review of DEMOCRACY IN THE STATES: EXPERIMENTS IN ELECTION REFORM (Cain et al., eds. 2008) praises the book for taking seriously the common description of the states as “laboratories of democracy.” The “hyper-decentralization of American elections” means that a breathtaking array of electoral practices have been attempted, and this book — including papers from leading empirical social scientists analyzing many of those practices — “moves us several steps closer to the worthy ideal of research-driven electoral policymaking.”

While praising the editors’ structure of the book for the “especially helpful feature” of having each paper conclude with a section on “Implications for Reform,” Dan also provides some useful warnings of the risks of moving too quickly from empirical analysis to reform. More broadly, the review notes that, taken as a whole, the book demonstrates some limits of election reform. For example, almost of all of the reforms designed to improve participation (i.e., voter turnout), such as absentee voting, choice of voting location, voting by mail, and early voting fail to effect participation — the one exception being election day registration.

The final section of the book discusses election reform and creating a “more responsive” government. Dan takes issue with one of the editors’ assertions that creating true electoral competition ought to be the main goal of future electoral reforms and notes a number of issues not covered in the book that also “warrant more searching examination,” most importantly, “different institutional arrangements for running elections and drawing district lines.”


Book Supplements

Daniel P. Tokaji (w/Daniel Hays Lowenstein & Richard L. Hasen), 2011 Supplement to Election Law, Cases and Materials (4th Ed. Carolina Academic Press).

Daniel P. Tokaji (w/Daniel Hays Lowenstein & Richard L. Hasen), 2011 Supplement to Election Law, Cases and Materials (4th Ed. Carolina Academic Press). This is the third annual supplement to Dan and his co-authors supplement to the current edition of their leading casebook, and it is up to 150 pages, reflecting the consistent activity in this burgeoning field. This supplement contains new material on gerrymandering, post-election lawsuits and public financing of elections, including reference to several recent articles by Moritz faculty, reflecting the College’s great strength in this area.


Daniel P. Tokaji (w/Daniel Hays Lowenstein and Richard L. Hasen), 2009 SUPPLEMENT TO ELECTION LAW CASES AND MATERIALS (4th ed. Carolina Academic Press).

This supplement, written by Professors Tokaji and Hasen, to the leading text is comprehensive and detailed. It already runs 67 casebook style pages, even though the 4th edition was just published in 2008. The scope is a reflection of the current vibrancy of legal development and scholarship in this area. The Supreme Court’s decision from last term in which it, perhaps surprisingly, avoided deciding on the constitutionality of Section 5 of the Voting Rights Act receives full treatment, as does the 2008 election, the California Supreme Court’s ruling on Proposition 8, and many other matters at both the federal and state levels.


Daniel P. Tokaji (w/Richard L. Hasen & Daniel Hays Lowenstein), 2010 SUPPLEMENT TO ELECTION LAW CASES AND MATERIALS (4th ed. Carolina Acad. Press).

In this latest supplement to their leading casebook, Dan and his coauthors grapple with the blockbuster decision in Citizens United v. FEC, which takes up nearly a third of the supplement in this very active area of law, and also cover Doe v. Reed, in which the Court nearly unanimously upheld as a general matter a state law requiring disclosure of information about signatories of petitions to get certain issues on the ballot, but through an array of concurring opinions, expressed very different views regarding when an “as applied” challenge to such a law should succeed.


Reports

Daniel P. Tokaji & Renata E. B. Strause, The New Soft Money (2014).

This important and widely-noted 106-page report, a project of Election Law @ Moritz, provides fresh and important information about the nature and impact of the explosion of independent spending in federal campaigns since Citizens United. Dan and his co-author conducted an extensive series of in-depth interviews with actors from all sides and all roles in the process, including candidates and Members of Congress, campaign operatives and those involved with independent groups. The intention of the report is to provide crucial information for understanding the manner in which the controversial new world is operating. The report uncovers a remarkable degree of consensus about some of the changes wrought by this new spending, albeit with disagreement about whether these changes are a good or bad thing. In addition, the elegant report includes a history of campaign spending and regulation and a detailed description of the “independent spending” in 2012.

The interviews identified four different types of groups engaged in independent spending, and Dan and his co-author examine the characteristics of each. All agree that the ultimate source of much of campaign funding is increasingly unknown, but some think the solution is increased disclosure, while others think the solution is to loosen restrictions on parties and candidates. In terms of the impact on campaigns, it is clear that this spending creates uncertainty and makes message discipline much more difficult (often as a result of the “dirty work” of negative ads) for campaigns, and that there is often cooperation between the independent groups and the campaigns, though through publicly-transmitted signals, rather than the “coordination” barred by federal law. The report discovered no direct evidence of quid pro quo corruption from this spending, but it did find evidence of enhanced access and influence for outside groups, particularly through implied threats of spending “if legislators do or don’t act in accord with the wishes of outside groups.” The report also finds increased time spent fundraising, deteriorating relationships between legislators and parties and loss of public trust as indirect effects of the new spending. A final section looks at the relevance of these findings to current policy debates and outlines pathways for further research.