The Yale Law Journal

Election Law

Article

Disparate Impact, Unified Law

Nicholas O. Stephanopoulos

Lower federal courts have recently converged on a two-part test for vote denial claims under section 2 of the Voting Rights Act. Yet this status quo is doctrinally incoherent and constitutionally vulnerable. Courts, this Article contends, should look to disparate impact law to address these problems…

Forum

Vote Dissociation

Daniel P. Tokaji

The 2016 election highlighted deep-seated problems in American democracy that voting rights cannot fix. This Essay employs the term “vote dissociation” to refer to a species of voting rights injury that is qualitatively different from both vote denial and vote dilution, in which concentrated wealth …

Forum

A Post-Shelby Strategy: Exposing Discriminatory Intent in Voting Rights Litigation

Danielle Lang & J. Gerald Hebert

In the wake of Shelby County, voting rights lawyers have pushed to hold jurisdictions fully accountable for their actions by proving claims of intentional discrimination under Section 3 of the VRA. This Essay explores the importance of this strategic move in the latest generation of voting rights ca…

Forum

Building an Umbrella in a Rainstorm: The New Vote Denial Litigation Since Shelby County

Dale E. Ho

This Essay traces the post-Shelby County development of a two-part Section 2 vote denial liability test. It also describes the tension as to the necessity of evidence (1) regarding the effect of voting practices on voter turnout and (2) concerning discriminatory intent on the part of a state actor.

Forum

Roundup: Citizens United and Public Corruption

Noah A. Rosenblum

Public corruption has occupied an interstitial space in American law, cutting across many different legal fields, including traditional criminal law, campaign finance regulation, special rules governing public officers, and First Amendment doctrine. When Citizens United was decided,1 its eff…

Feature

Redistricting Commissions: A Better Political Buffer?

Bruce E. Cain


121 Yale L.J. 1808 (2012).

The new institutionalism in election law aims to lessen the necessity of court
intervention in politically sensitive election administration matters such as redistricting by
harnessing politics to fix politics. Many hope that independent citizen commissions (ICCs) will
improve…

Feature

Districting for a Low-Information Electorate

Christopher S. Elmendorf & David Schleicher


121 Yale L.J. 1846 (2012).

Most commentary on redistricting is concerned with fairness to groups, be they
racial, political, or geographic. This Essay highlights another facet of the redistricting problem:
how the configuration of districts affects the ability of low-information voters to secure
respons…

Feature

Weightless Votes

Joseph Fishkin


121 Yale L.J. 1888 (2012).

Does “one person, one vote” protect persons, or voters? The Court has never resolved this question. Current practice overwhelmingly favors equal representation for equal numbers of persons. Opponents charge, however, that this approach dilutes the “weight” of some individua…

Comment

One Person, No Vote: Staggered Elections, Redistricting, and Disenfranchisement

Margaret B. Weston


121 Yale L.J. 2013 (2012).

Review

Lightning in the Hand: Indians and Voting Rights

Pamela S. Karlan

120 Yale L.J. 1420 (2011). 

American Indians and the Fight for Equal Voting Rights

By Laughlin McDonald

Norman, OK: University of Oklahoma Press, 2010, pp. 347. $55.00.

Note

Citizens Informed: Broader Disclosure and Disclaimer for Corporate Electoral Advocacy in the Wake of Citizens United

Daniel Winik

120 Yale L.J. 622 (2010). 

This Note proposes a new direction for the regulation of corporate electoral advocacy in the wake of Citizens United. Rather than examining whether Citizens United was rightly decided, it argues that broad disclosure and disclaimer regulations for corporate electoral spee…

Forum

Citizens United and Its Critics

Floyd Abrams

Testifying before the Senate Judiciary Committee regarding her confirmation as a Supreme Court Justice, Solicitor General Elena Kagan summed up in a cool and even-handed manner the arguments she and her opponents in the Citizens United v. FEC case had made to the Supreme Court. The “strongest argu…

Note

The Voting Rights Act's Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance

Travis Crum

119 Yale L.J. 1992 (2010). 

Following NAMUDNO, the search is on for a way to save section 5 of the Voting Rights Act (VRA). This Note offers a solution through an examination of the VRA’s most obscure provision: section 3. Commonly called the bail-in mechanism or the pocket trigger, section 3 autho…

Forum

Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment

Paul M. Secunda

Citizens United has wrought widespread changes in the election law landscape. Yet, a lesser-known consequence of this watershed case might have a significant impact in the workplace: it may permit employers to hold political captive audience workplace meetings with their employees. Under Citizens Un…

Note

Maximizing Participation Through Campaign Finance Regulation: A Cap and Trade Mechanism for Political Money

William J. Rinner

119 Yale L.J. 1060 (2010). 

This Note attempts to reroute a burgeoning area of campaign finance scholarship and reform. Though many previous proposals have enshrined liberty or equality as the sole animating value to pursue through doctrinal and political means, few have considered the impact of ca…

Forum

Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech

Elizabeth Pollman

The Yale Law Journal Online is reissuing Elizabeth Pollman's Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech in light of recent developments at the Supreme Court. With the Supreme Court hearing a new round of oral arguments in Citizens United v. Federal Elec…

Note

Privatizing Democracy: Promoting Election Integrity Through Procurement Contracts

Jennifer Nou

118 Yale L.J. 744 (2009).

 

Voting machine failures continue to plague American elections. These failures have fueled the growing sense that private machine manufacturers must be held accountable. This Note argues that, because legitimacy externalities and resource disparities across election juri…

Article

Race and Democratic Contestation

Michael S. Kang

117 Yale L.J. 734 (2008).

As the Voting Rights Act of 1965 (VRA) passes its fortieth anniversary and faces upcoming constitutional challenges to its recent renewal, a growing number of liberals and conservatives, once united in support, now share deep reservations about it. This Article argues that…

Article

The Promise and Pitfalls of the New Voting Rights Act

Nathaniel Persily

117 Yale L.J. 174 (2007).

In the summer of 2006, Congress reauthorized the expiring provisions of the Voting Rights Act (VRA) with a unanimous vote in the Senate and with limited opposition in the House of Representatives. The veneer of bipartisanship that outsiders perceived in the final vote glos…

Feature

John Hart Ely and the Problem of Gerrymandering: The Lion in Winter

Pamela S. Karlan

114 Yale L.J. 1329 (2005)

In Democracy and Distrust, John Hart Ely articulated a "participation-oriented, representation-reinforcing approach to judicial review" that advanced both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. This essay explores the implications…

Note

Judging Partisan Gerrymanders Under the Elections Clause

Jamal Greene

114 Yale L.J. 1021 (2005)

The Supreme Court has consistently decried the lack of standards for adjudicating partisan gerrymandering claims, most recently in last Term's Vieth v. Jubelirer. But it has ignored the potential for developing standards under the Elections Clause, which it held in Cook v. G…

Review

What Ails Us?

Lillian R. BeVier

112 Yale L.J. 1135 (2003)

Is American democracy sick? If so, what ails it? More importantly, can the disease be cured? Can its symptoms be alleviated by imaginative and well-crafted laws? Or is it a genetic disorder embedded in the DNA of modern representative government and thus unlikely to yield to…