Democracy and Law


Tough on Crime: How Campaigns for State Judiciary Violate Defendants’ Due Process Rights

Joanna Cohn Weiss

Elected judges often run “tough on crime” campaigns, which raises concerns that they will be biased against criminal defendants once on the bench. Indeed, studies show that elected judges give harsher punishments to criminal defendants as elections near. Nevertheless, in Republican Party of Minnesota v. White, the Supreme Court found that an elected judge can still be considered impartial even if he knows that his decisions throughout a case might affect his job security. This Note argues that the Supreme Court’s decision in White failed to account for a key factor complicating the election of unbiased judges: media coverage of crime and elections. The media dynamics at work in elections and the particular way judges respond to them may lead to criminal cases being heard by judges who are biased against defendants. To correct this problem, states must affirmatively act to protect criminal defendants’ right to a fair trial by adopting broad recusal requirements. States must change their codes of judicial conduct to allow for mandatory recusal of judges who run tough-on-crime election campaigns.

Disenfranchisement and the Constitution: Finding a Standard that Works

Demian A. Ordway

Since the presidential election of 2000, a host of new claims has arisen alleging unlawful denial of the right to vote. Litigants have challenged the use of error-prone voting machines, misleading registration forms, and the highly controversial photo identification requirements for in-person voting. The law protecting the right to vote, however, is in disarray, leaving courts confused and unsure of how to proceed with these challenges. In particular, courts have disagreed sharply over the content of the relevant constitutional standard and how to apply it. Some courts have adopted the standard articulated by the Supreme Court in its 1992 decision, Burdick v. Takushi, while others have applied strict scrutiny. This Note criticizes the Burdick standard for being incapable of producing consistent results and advocates for a modified version of strict scrutiny motivated by structural concerns inherent in the democratic process.

Understanding “Judicial Lockjaw”: The Debate over Extrajudicial Activity

Leslie B. Dubeck

Federal judges are expected to conduct themselves differently than their counterparts in the political branches. This Note considers the policy and historical reasons used to justify this different standard of conduct and concludes that these justifications are largely unsupported or overstated. These erroneous justifications obfuscate the debate over extrajudicial conduct and may result in a suboptimal level of extrajudicial activity.

Appearance Matters: Why the State has an Interest in Preventing the Appearance of Voting Fraud

Andrew N. DeLaney

This Note seeks to show that the state has an interest not only in preventing voting fraud, but also in preventing the appearance of voting fraud. Drawing an analogy to campaign finance law, this Note argues that if the state has an interest in preventing the appearance of corruption in election financing, then courts should also recognize such an interest in preventing the appearance of voting fraud in elections. The state has this interest in elections for the same reason it does in campaign finance law: Voters who perceive fraud may lose faith in the democratic process and consequently drop out of that process. Borrowing from the standard of proof courts have used in the campaign finance context, this Note analyzes popular opinion, media reports, and legislators’ statements to determine that the appearance of voting fraud exists—and thus concludes that the state should be permitted to act on its interest in combating that appearance. Photo identification requirements have attracted particular controversy as a method of combating voting fraud. This Note analyzes photo identification requirements as an example of antifraud laws which might not be constitutional if the state’s only interest were in preventing the actual fraud, but might be constitutionally permissible if the appearance-of-corruption interest is considered.

Accuracy Counts: Illegal Votes in Contested Elections and the Case for Complete Proportionate Deduction

Kevin J. Hickey

Contested elections in which the number of illegal votes exceeds the purported winner’s margin of victory present courts with difficult choices. Simply certifying the result risks denying the true winner his victory, while ordering a new election leaves the choice to a changed electorate. Adjusting the results is also problematic, as it may create a perception that judges, and not voters, have decided the election. This Note argues that courts should be more willing to use statistical techniques to resolve this type of election dispute. It critiques the various remedial measures that courts have employed, as well as the rejection of statistical methods in existing case law and legal commentary. The author concludes that a statistics-based remedy—termed “complete proportionate deduction”—best balances the values of accuracy, finality, and public faith in the democratic process.

The Constitutional Life of Legislative Instructions in America

Christopher Terranova

In the United States’ early history, state legislatures often formally instructed their federal representatives on particular votes. This practice flourished for a century but then died out—a change that many scholars attribute to the Seventeenth Amendment. This Note argues that previous scholars have ignored other, more important, reasons for the demise of instructions.

The six-year term length for U.S. senators, combined with the increasingly rapid turnover in state legislatures, prevented binding instructions from becoming permanently entrenched. Instructions were held in place after the Founding only by constitutional culture, but even this did not last. After Southern Democrats vigorously used instructions to purge Whigs from the Senate in the 1840s and 1850s, the use of instructions was indelibly linked to the South. Not surprisingly, the doctrine of instructions was one of the casualties of the Civil War. Following the War, the roles were reversed: The states—especially the Southern states—were taking instructions from the federal government. Today, instructions still exist but as nonbinding “requests” for action. This new conception of instructions returns us full circle to James Madison’s conception of the proper role of instructions: a right of “the people . . . to express and communicate their wishes” to their representatives.

The Costs of “Discernible and Manageable Standards” in Vieth and Beyond

Joshua S. Stillman

This Note argues against the use of the prudential political question doctrine (PPQD), as exemplified by the Vieth v. Jubelirer plurality opinion. In Vieth, the Supreme Court avoided formulating a standard for adjudicating the constitutionality of partisan gerrymandering due to a claimed lack of a “discernible and manageable standard.” This meant, according to the plurality, that no proposed doctrinal test was both concrete enough to be workably deployed by lower courts and discernible enough in the constitutional text, history, and structure, inter alia. Although the Vieth plurality opinion presents itself as based on universally applicable metadoctrine determining what is and is not a discernible and manageable doctrinal test, this Note argues the Court’s use of the PPQD is ultimately based on a gestalt prudential judgment about the wisdom of intervention in the particular area of partisan gerrymandering.

This Note then argues that the PPQD leads to negative consequences for future litigants and judicial legitimacy. The PPQD sends litigants on a wild goose chase for a perfect doctrinal standard, when it seems clear that no standard will satisfy the Vieth plurality. It also invites litigants to argue about what a discernible and manageable doctrinal test is in the abstract, rather than to address the particular legal issue at hand. These diversions insulate the judiciary from legitimate criticism of the grounds of its decisions. This Note then compares the PPQD to another option for judicial avoidance: a merits standard that is almost impossible for plaintiffs to meet in practice, such as rational basis review. This Note concludes that a stringent merits standard is a superior mechanism for judicial avoidance because it does not carry the same high costs for litigants and judicial legitimacy as the PPQD. Additionally, it allows the Court to exit from active adjudication of an issue while still preserving its ability to intervene in egregious cases.

Deregulation Through Nonenforcement

Daniel T. Deacon

This Note examines the phenomenon of deregulation through nonenforcement, drawing on examples from the George W. Bush Administration. It argues that the presumption of nonreviewability afforded to agency refusals to prosecute creates incentives for presidential administrations pursuing deregulatory agendas to manipulate agency enforcement practices. Furthermore, it contends that deregulation through nonenforcement is undesirable because it shields executive branch policy decisions from public view, thereby reducing accountability. Perhaps counterintuitively, the Note suggests that one way to counteract the negative effects of the presumption of nonreviewability is to reduce the level of review applied to other categories of agency action, such as notice-and-comment rulemaking, thus increasing the executive’s ability to act through more accountable means.

The Law of Democracy and the Two Luther v. Bordens: A Counterhistory

Ari J. Savitzky

How, and how much, does the Constitution protect against political entrenchment?
Judicial ineptitude in dealing with this question—on display in the modern Court’s
treatment of partisan gerrymandering—has its roots in Luther v. Borden. One hundred
and sixty years after the Luther Court refused jurisdiction over competing
Rhode Island state constitutions, judicial regulation of American structural democracy
has become commonplace. Yet getting here—by going around Luther—has
deeply shaped the current Court’s doctrinal posture and left the Court in profound
disagreement about its role in addressing substantive questions of democratic fairness.
While contemporary scholars have demonstrated enormous concern for the
problem of the judicial role in policing political entrenchment, Luther’s central role
in shaping this modern problem has not been fully acknowledged. In particular,
Justice Woodbury’s concurrence in Luther, which rooted its view of the political
question doctrine in democratic theory, has been completely ignored. This Note
tells Luther’s story with an eye to the road not taken.

PACs Post-Citizens United: Improving Accountability and Equality in Campaign Finance

Jeremy R. Peterman

In this Note I argue that the Federal Election Campaign Act’s $5000 limitation on
individual contributions to political committees should be removed. I advance two
main arguments. First, in light of recent campaign finance decisions, the limitation
appears to be unconstitutional as it imposes a limit on First Amendment rights
without being tailored to the government’s interest in preventing quid pro quo corruption.
Second, eliminating the contribution limitation will have previously unrecognized
normative benefits. Smaller PACs representing a variety of viewpoints will
be more able to compete with established corporate and union PACs, and the
volume of accountable political speech may increase as more money is channeled
through PACs to candidates’ hands.