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Election Law @ Moritz

Election Law @ Moritz


"By the way, we have to fix that"

Correction: the President was originally quoted as saying "we need to fix that"; the quote has been changed to be exactly accurate.

At the beginning of his reelection victory speech, President Obama referred to the extraordinarily -- and unacceptably -- long lines that many voters in this year's election faced.  Then, he added: "By the way, we have to fix that." 

Let us hope that there is bipartisan support for that sentiment. 

There will be ample time for reflection and examination on what went wrong this year regarding the voting process, and what aspects of it work properly.  But for now it is enough to say that there is an overwhelming, and widespread, impression that "surely we can do better" -- to echo Alex Keyssar's eloquent statement today on the New York Times website.  As he said, it is a serious problem that "[a]ll of us now expect elections to be not only competition between candidates and parties but also conflicts over voting rights and election procedures." 

Rick Hasen has expressed the hope that the nation won't ignore the significant structural weaknesses in our electoral system, now that the presidential election is "over" (except, of course, for all the official processes that remain, from the canvassing of returns to the meeting of the Electoral College, and the congressional reception of those Electoral Votes).  I share Rick's hope, and look forward to doing the hard work necessary -- through the American Law Institute's election law project and otherwise -- to help develop principles and proposals for what an improved electoral system would entail. 

Meanwhile, there remain races other than the presidency that are still "too close to call," and it will be important over the next days and potentially weeks to watch the processes by which they are officially determined.


Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


Edward B. Foley

Gerrymandering as Viewpoint Discrimination: A "Functional Equivalence" Test

Edward B. Foley

A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

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In the News

Daniel P. Tokaji

This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.


"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 

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Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

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