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Election Law @ Moritz

Election Law @ Moritz

Free & Fair

New Swing State Website Tool (Among Today's Voting Law News)

Today is a milestone in election law. The big news nationally, of course, is the Pennsylvania voter ID ruling, which prevents for this November’s election any voter from being disenfranchised as a consequence of not having the ID required by the new state’s law.

The ruling, which does permit poll workers to ask voters to show their ID if they have one, is functionally (and to speak somewhat in legalese) a kind of as-applied, pre-enforcement remedy—meaning that the court refused to void the new law in its entirety (it is still enforceable as to those who have the ID and thus won’t be disenfranchised by asking for it), but rendered it unenforceable in advance of Election Day against anyone without ID and thus at risk of disenfranchisement. Under the express terms of today’s order, otherwise eligible voters who lack the required ID will cast a regular, rather than provisional, ballot. Compared with waiting until after Election Day to declare that provisional ballots cast by voters without the required ID are constitutionally required to be counted (the option that that trial court initially suggested as a means of avoiding unconstitutional disenfranchisement), today’s order has the advantage of settling the rules clearly in advance of casting the ballots—which is almost always beneficial in the context of litigation over the voting process.

Today is also important as the start of early voting here in Ohio. Of course, we all still await a decision from the Sixth Circuit in the Obama campaign’s case against the change in the state’s laws concerning the last three days of early voting before November 6. After teaching the case today to my Election Law students, I am all the more convinced that the Sixth Circuit’s decision will be a nationally significant Equal Protection precedent in the realm of voting rules, and this is true whichever way the court decides the case.

Today, too, Election Law @ Moritz unveils its new “Swing State Focus” website tool. You can access it through this link, or simply by clicking the icons of the states on the front page of our website. This tool reflects the teamwork approach we have endeavored to develop here at EL@M. Under the leadership of Professor Terri Enns, who deserves tremendous credit for this initiative, a team of faculty, staff, and students have worked painstakingly to populate the tool with the relevant information about the current voting rules in states that potentially may tip the presidential election one way or the other. Six states are currently up-and-running in this new interactive database, with more to follow.

During the NPR show On Point that aired this Monday, host Tom Ashbrook asked several guests (and I’m paraphrasing here, based on memory) whether it is possible that the voting laws in potential swing states—like Florida, Ohio, Virginia, or Colorado—might make a difference to the outcome of this year's presidential election. I’ve already expressed my hope (shared by Justin Levitt as one of the guests on the Monday show) that, once the dust settles, the rules for casting and counting ballots in any potential swing state will not be grounds for judging the outcome of the election as lacking democratic legitimacy. But, as a matter of factual analysis as distinct from opinion, we at Election Law @ Moritz offer this new Swing State Focus tool to help enable interested members of the public to make their own evaluations concerning the pressing question that Tom Ashbrook, among others, has asked.

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

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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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