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The one person one vote doctrine contains a core ambiguity: Do states need to equalize the voting strength of voters in each district? Or do they need to equalize the total number of people in each district? This difference matters when demographic trends lead to large numbers of noncitizens living in some districts but not others. When that happens, equalizing the total population across districts leads to large differences in the number of voters in each district and differences in the voting power of voters across districts. In 1990 the Ninth Circuit held in Garza v. County of Los Angeles that the First and Fourteenth Amendments together require states to equalize the total population across districts, no matter the distribution of noncitizens and other ineligible voters. But that approach has not caught on, and recently the Supreme Court signaled that it thinks the Garza approach is inconsistent with the leading Supreme Court precedent of Burns v. Richardson, which allowed Hawaii to equalize the number of registered voters rather than the total population across districts. This Essay provides a reading of Burns according to which it holds that the goal of apportionment is to fairly distribute representatives across the to-be-represented population—the group of more or less permanent residents who belong to the political community—and that sometimes the total population reported in the Federal Census is an inaccurate measure of this. Thus, Burns should not stand as an obstacle to a modern acceptance of the Garza approach if the Court is forced to revisit these issues after the 2021 redistricting of state legislatures.

The prelude of the 2020 election is marred by dark projections of large-scale violence that could disrupt voting or a prolonged count of mail-in ballots requested due to the COVID-19 pandemic. Academics agree that this situation is unlikely to be an isolated occurrence. Rather, extreme polarization risks making violent elections a new norm in American life. Even if violence fails to materialize in November 2020, it is still worthwhile to engage in legal scenario planning to ask the question: What if? This Essay sketches a preliminary, incomplete answer to that question from the perspective of courts.

Taking as an example a complaint seeking to enjoin the Trump campaign from inciting violence, this Essay begins from the assumption that existing Fourteenth Amendment doctrine, forged in the era of 1960s desegregation, lacks a register to fully conceptualize the novel assaults on American democratic institutions today. Specifically, courts tend to employ a strict individual rights focus, which lacks the ability to conceptualize assaults on democracy that do not intentionally target any particular voter and, uncomfortably, asks courts to step into an ex ante regulatory role more familiar for a federal agency than the judicial branch. To fill that gap, courts could learn from international democratic backsliding. Specifically, the concept of a “strategy of tension” lends analytical rigor to scenarios in which regimes actively seek to foment civil unrest, cracking down on opponents and encouraging extrajudicial violence. This framework allows one to recognize such harms as injuries to democracy itself that endanger the supreme democratic principle of the state’s monopoly on the legitimate use of violence, a foundational principle of liberal governance. With that conceptualization in hand, this Essay concludes by forwarding a potential role for courts “in the breach” as exercising emergency powers to stabilize democracy under extreme stress.

Permanent residents must naturalize to enjoy full access to constitutional rights, particularly the right to vote. However, new regulations from U.S. Citizenship and Immigration Services (USCIS), finalized in early August and originally slated to go into effect one month before the 2020 election, would drastically increase the cost of naturalization, moving it out of reach for many otherwise-qualified permanent residents, while at the same time abolishing any meaningful fee waiver for low-income applicants. In doing so, USCIS has sought to condition naturalization and its attendant rights on an individual’s financial status.

In this Essay, I juxtapose the new fee regulations with a growing caselaw and scholarly literature about financial status, voting, and an individual’s ability to pay. Placed alongside the ability-to-pay caselaw—including Griffin v. Illinois and Bearden v. Georgia and, more recently, the litigation about Florida’s felony disenfranchisement provisions—it is clear that the new fee policies should be seen as due process and equal protection violations and struck down. I conclude by noting possibilities for litigation or legislation that would preserve a meaningful safety valve to allow low-income individuals to realize the full benefits of naturalization and access all the rights that come with it.

Conferencia Brennan

In the wake of President Trump’s acquittal in the Senate impeachment trial, and even more so because of the COVID-19 pandemic, the United States will need to hold a presidential election in unprecedented circumstances. Never before has an incumbent president run for reelection after the opposing party in Congress has declared that the fairness of the election cannot be “assured” as long as the incumbent is permitted on the ballot. Nor have states been required to plan for a November presidential election not knowing, because of pandemic-related uncertainties, the extent to which voters will be able to go to the polls to cast ballots in person rather than needing to do so by mail. These uniquely acute challenges to holding an election that the public will accept as valid follow other stresses to electoral legitimacy unseen before 2016. The Russian attack on the 2016 election caused Americans to question, in an unprecedented way, the nation’s capacity to hold free and fair elections.

Given these challenges, this essay tackles the basic concept of what it means for the outcome of an election to be valid. Although this concept had been considered settled before 2016, developments since then have caused it to become contested. Current circumstances require renewing a shared conception of electoral validity. Otherwise, participants in electoral competition—winners and losers alike—cannot know whether or not the result qualifies as authentically democratic. Accordingly, after reviewing the history that has led to the present difficulties, this essay offers a renewed conception of electoral validity. This essay then explains the theoretical basis for this renewed conception and applies it to some of the most salient threats to electoral validity that are foreseeable in the upcoming 2020 election, as well as in future elections.

In brief, the proposed standard of electoral validity distinguishes sharply between (1) direct attacks on the electoral process that negate voter choice and (2) indirect attacks that improperly manipulate voter choice. Direct attacks undermine electoral validity, whereas indirect attacks do not. It is essential, however, that the category of direct attacks encompasses both the disenfranchisement of eligible voters—which prevents them from casting a ballot—as well as the falsification of votes reported in the tallies of counted ballots.