1.

The Right to Vote

a. Harper v. VA St. Board of Elections (1966)
A. 24A banned poll taxes in 1964
B. Held: Voting cannot be condit. on wealth or paying fee.
1. No connection to true voting qualification
C. Dissent wanted legis., not cts., to strike this down
b. Skafte v. Rorex (1976)
A. Held: Non-citizens do not have right to vote
c. Kramer v. Union Free School District No. 15 (1969)
A. In NY school board election, only those with property could vote.
B. If law gives vote to some, and not others, then the courts must scrutinize.
C. Held: In this case, not tailored enough for scrutiny of compelling state
interest.

2. Redistricting

a. Gerrymandering
A. Background
1. Shoot for proportionality.
2. Look at # people vs. # of voters and changes in pop. overtime
3. Can get same results w/o gerrymandering.
B. Davis v. Bandemer (2004)
1. Held: Plurality, on merits, found IN plan constitutional
2. Not de facto invalid if partly political. Dont want every map
challenged.
C. Vieth v. Jubelirer (2004)
1. Can a Court try a case on the ground of gerrymandering?
2. Held: No. No provision under Constit. or statute for policing fairness.
D. LULAC v. Perry (2006)
1. Held: District maps changed in mid-decade presumed invalidly
political.

3. Minority Vote Dilution

a. Voting Rights Act 5

A. If covered by 4(a), have to get preclear. thru DC Circ.
B. Or can submit to AG up to 60 days prior to election. AG has to deny or
goes thru.
b. Shelby County v. Holder (2013)
A. Did renewing 5 and 4(b) viol. constr. of 14A and therefore 10A and Art. 4
of USCon?
B. Held: Yes, 4 unconstit. Burden no longer necess. b/c times changed
from 50 yrs ago.
C. Congress could go back and fix 4 and thereby 5
c. Beyond the Right to Cast a Ballot
A. Allen v. State Board of Elections (1968)
1. Voters and candidates in MS/VA challenged amendments to election
laws on groudns that they should be pre-cleared.
2. Held: A private litigant can bring suit to determ. whether 5 viol.
3. Litigant should bring case in local Dist. Cts, even though some parts
of act need to come through DC Circuit
4. Cong. intended these cases to be heard b/f 3-judge panels w/ direct
appeal to SC
5. Voting changes did concern a voting qual., pre-req., standard,
practice , or proced. w/ respect to voting.

4. Election Administration

a. Counting Votes and Equal Protection

A. Bush v. Gore (2000)
1. Following the US SCs decision in Bush v. Palm Beach County
Canvassing Board, and concurrent with VP Gore's contest of the
certif..of FLs Presid. election results, on 12/8/2000 the FL SC ordered
the Circ. Court in Leon Cty. tabulate by hand 9000 contested ballots
from Miami-Dade Cty.
2. Also ordered every county in FL must immediately begin manual
recounting all "under-votes" (ballots which did not indicate a vote for
president) b/c there were enough contested ballots to place the
outcome of the election in doubt.
3. Bush and Cheney filed a request for review from US SC and sought an
emergency petition for a stay of the FL SC's decision.
4. The US SC granted rev. & issued stay on 12/9. Heard oral args. on
12/11.
5. Held: In the circumstances of this case, any manual recount of votes
seeking to meet the 12/12 safe harbor deadline unconst. under the
EPC of the 14A.
b. Voting Technology
A. Wexler v. Anderson (2006)
1. Held: FLs manual count scheme for touch-screen vote machines was
Constitutional
c. Voter Identification
A. Crawford v. Marion Cty. Elec. Bd. (2008)
1. Voter ID law said ID req. if voting at office of circ. clerk in person prior
to Elec. Day
2. Did not apply to absentee or state licensed facilities like nursing
homes.
3. If religious objection or indigent, can cast provisional ballot
4. No ID required for registration.
5. Free ID to qualified voters to establish residence
6. Rule -- Any photo ID is a minimum burden that does not viol. the fund.
right to vote.
a. If more than minimum burden, then strict scrutiny.
b. This is the two-track approach of J. White.
d. Elecetion Litigation is on the Rise Across the Board

5. Ballot Propositions

a. Background
A. Initiative (prop. statute), Referendum (Challenge statute), Recall (Unseat
official)
B. State Legislatures can also submit legislation to voters for approval.
b. Pros and Cons
A. Pros More direct democ. Middle ground b/t us and Swiss. Enhances
gov. respon. and acc. Protects against bossism. Stimulates voter
interest. Provides safety valve.
B. Cons Undermines repres. democ. Produces unsound legis. Endangers
minority rts. Amplifies special interests. Lacks accountability b/c no
usual checks and balances.
c. Content Restrictions

A. Single-Subject Rule
1. In re Advisory Opinion to the AG (Fla. 1994)
a. Anti-gay rights group wants to pass anti-discrim. law that would
preempt attempts for gay rights
b. Held: Violated single-subject rule
c. Voters shouldnt have to accept ballot measure in part and reject in
part
d. Procedural Requirements and Judicial Review
A. Strict Enforcement or Subst. Compliance?
1. Costa v. Superior Court (Cal. 2006)
a. Held: Generally, it is more appropriate to review challenges to
ballot measures after election so that the electoral process is not
disturbed. This rule generally applied unless there was clear
showing that the meas. in Q is invalid. Brosnahan
b. Text of Prop. 77 did not exactly match that in pre-reviewed version.
c. In this case, arg. was it should not go to voters b/c outside scope of
init. power
d. Q to ask is if, the purpose of the technical requirement is
frustrated by the defective form of the petition.
e. Only need substantial compliance b/c init. rules construed liberally
B. Pre-Election Judicial Review
1. WY Natl Abort. Rights League v. Karpan (Wyo. 1994)
a. Prefer post-election review of initiatives to not disturb political
process
C. Hard Looks?
1. One school believes initiatives should get partic. rigourous scrutiny
for unconst.
e. Financial Qualification Drives
A. Meyer v. Grant (1988)
1. Paid petition circulations protected by 1A and 10A. Affirmed 10th Circ.

6. Major Political Parties

a. Obligations of Parties under Constitution

A. Background
1. For long time, parties treated as private organizations and reg.
minimally as such
B. Fed Interest in Reg. Party Primaries
1. Initially minimal.
2. Early courts found Art. 1 4 of USCon. gave right to regulate elections,
not primaries
C. White Primary Cases and State Action Doctrine
1. Nixon v. Herndon (1927)
a. Held: TX all-white primary denied AAs EP under 14A
2. State Action Doctrine
a. If the partys a wing of the political branch, then can reg. more.
b. Associated Rights of Parties
A. Tashjian v. Repub. Party of CT (1986) Establishment of Right
1. Held: In 5-4 opin, SC held CT stat req. voters in any political party
primary to be regist. members of that party viol. party's 1A & 14A
rights to define its association.
B. CA Democ. Party v. Jones (2000) Extent of Right
1. Held: Pol. parties cannot be compelled to open primaries to membs. of
other parties.
2. Invalidated CAs blanket primary system on the grounds that members
of one party shouldnt nominate other partys candidate
C. WA State Grange v. WA St. Rep. Party (2008) Extent of Right
1. Modified blanket primary system
2. Candidate could affiliate w/ any party regardless of party approval
3. Held: SC - OK b/c State never said nomin. for this party

7. Third Parties and Independent Candidates

a. Ballot Access
A. Background
1. Until 1968, states could put whatever restrictions they wanted on 3rd
party access
B. Williams v. Rhodes (1968)
1. Held: OH had to put Wallace on ballot b/c of Constit. right to be candid.
for office.
C. Munro v. Socialist Workers Party (1986)
1. Held: Req. that cand. receive 1% of prim. vote to get name on ballot
OK
D. Anderson v. Celebrezze (1983)
1. Held: Look at (1) Char. and magnit. of alleged injury; (2) State interest
in putting forth burden; (3) If it is necessary to burden the voters
rights.
E. Burdick v. Takushi (1992)
1. Held: Not allowing write-in candidates is OK under 1A and 14A. Upheld
HI law.
F. Timmons v. Twin Cities Area New Party (1997)
1. Minn. law prohib. cand. from appearing on ballot for more than one
party.
2. Held: Does not violate 1A or 14A.
b. Debate Access
A. AK Educ. TV Comm. v. Forbes (1998)
1. Held: No Constit. right to be in debates
2. Debates are not public forums when on private channels.
c. Pros of 3rd Parties
A. More representation. Broaden debate. More competition.

8. Campaigns

a. Background
A. Presidential elections different from all others b/c both well-run and wellfunded.
B. Political scientists divided on if media coverage has negative influence on
voter choices
C. House campaigns not as dependent on TV
D. Low advertising races, e.g. Superior Court judge, may have no
advertising.
b. Regulating Campaign Speech
A. State of WA v. 119 Vote No! Committee (1998)
1. Law against falsehoods in political advert. viol. 1A
2. Held: Does not serve compelling State interest
3. McKimm Cartoon w/ hand taking bribe too far.

4. Even constit. anti-falsehood laws are probably still ineffective since

hard to enforce
c. Judicial Elections
A. Inherently problematic b/c of conflict-of-interest
B. Judicial Candid. Speech and Conduct Codes
1. Repub. Party of Minn. v. White (2002)
a. "Announce clauses" of judicial ethics codes which prohibit judicial
candidates from announcing their views on how disputed legal or
political issues be decided are unconstitutional.
C. Judicial Elec. and the Camp. Money: Limits or Recusal?
1. Caperton v. Massey (2009)
a. A state judge is prohibited by the Constit. from hearing a case
which the financial interests of any of his major election campaign
backers are involved.
b. Trial judge needs to be fair and impartial

10.

pocket.
d. Foreign doctors group gives him $900 cash. WV has limit above
$50 unreported
e. Held: Not extortion
f. Had to show quid pro quo
g. Was working in furtherance of legitimate interests of constituents
3. US v. Sun-Diamond Growers of CA (1999)
a. CA act said you couldnt give anything to past, pres., or future
candid. in return for act done or to be done
b. Gave to Agric. Sec. while he was in charge of two matters that
affected them
c. Did not show causal link b/t giving and the two matters in front of
him
d. Held: To sustain conviction for federal bribery there must be a clear
quid pro quo link between the gratuity received and performance of
a specific act
E. Official Act
1. State v. Bowling (Ariz. App. 1967)
a. Charged w/ receiving bribe while in AZ legislature for guy to get
liquor license

The Buckley Framework

a. Some Reasons for Regulating Campaign Finance

A. Prevent corruption; Promote political equality; Enhance competitiveness
of elections; Instill public confidence in democratic process; Free
candidates from fundraising
b. Buckley v. Valeo (1976)
A. Challenged key provisions of FECA
B. Gov. cannot restrict expenditures in political campaigns b/c such
expenditures are forms of political speech protected under 1A.
C. However, can restrict amount a person can contributes.
D. SC assumed FECA implicated 1A in holding expenditure ceilings b/c they
substantially limit the qual. of free speech
E. Ceilings on expenditures serve no valid State interest

9. Bribery

a. Bribery of Candidates
A. People v. Hochberg (1978)
1. Politician charged for agreeing to give potential opponent perks for not
running:
a. $20k/yr. job in legis. for opp.
b. Session job for opp. bro-in-law
c. $5k campaign contrib..
2. Held: Obviously bribery
b. Elements of Bribery:
A. Federal Statute
1. Federal Statute:
a. Whoever:
BURDEN ON RIGHTS:
i. Directly or
Insignificant/Incidental/Insubstantial
indirectly offers
Burden to the few people who have to vote
anything of value
w/ affidavit if they dont have a voter ID on
election day is impossible to quantify
to public official
(Crawford)
1. To influence
Apportion scheme that makes winning
any official act;
elections more difficult (Bandemeer)
or
Redistricting where partisanship appears to
2. To influence
be the primary/only reason for redistricting
official to allow
(LULAC v. Perry).
Recount done by diff procedures for diff
fraud on US
mach. (Wexler v. Anderson).
3. To induce
Disallowing minor party from allowing other
official to do or
partys members to cross over into their
not to do any
primary in contiv of state law. (Clingman v.
official duty
Beaver)
ii. Are an official and
Forcing min party to get 1% of overall prim
vote to get on ballot. (Munro)
are on the
State law banning fusion candidates from
receiving end of
having mult noms. (Timmons)
above.
Minor candidate being denied access to
B. Corrupt Intent
public TV debate (Forbes)
1. Hard to define b/c intent
is nebulous and can be tangential if taken to extreme
C. Anything of Value
1. People ex rel. Dickinson v. Van de Carr (NY App. 1903)
a. NYC alderman charged w/ bribery for offering vote for reinst. of a
public official.
b. Since the ben. got was re-inst., this would be embraced w/in
mean of the stat
c. Is bribery
D. Intent to Influence
BURDEN ON RIGHTS:
1. State v. Agan (GA 1989)
Insignificant/Incidental/Insubstanti
a. Upheld validity of
al
775.01
Burden to the few people who have to
b. Go w/ plain meaning
vote w/ affidavit if they dont have a
of statute when it
voter ID on election day is impossible
desc. offense
to quantify (Crawford)
c. No right to sell office,
Apportion scheme that makes winning
but can take
elections more difficult (Bandemeer)
reasonable finan.
Redistricting where partisanship
donations for
appears to be the primary/only reason
nomination
for redistricting (LULAC v. Perry).
2. McCormick v. US (1991)
Recount done by diff procedures for diff
a. Case of alleged
mach. (Wexler v. Anderson).
extortion under Hobbs
Disallowing minor party from allowing
Act of WV state
other partys members to cross over
legislator
into their primary in contiv of state law.
b. Helped pass bill to
(Clingman v. Beaver)
allow foreign doctors
Forcing min party to get 1% of overall
when his area had
prim vote to get on ballot. (Munro)
shortage of doctors
State law banning fusion candidates
c. Told group the
from having mult noms. (Timmons)
campaign was
Minor candidate being denied access to
expensive and he had
public TV debate (Forbes)
paid out of own

b. Superintendent of Liquor had carte blanche discretion in selecting

recipients
c. No normal obligation for legislator to go before the Superintendent
d. Held: Without an official obligation, there is no official act and no
bribery.

11.

Spending Limits after Buckley

a. Ballot Measure Campaigns

A. First Natl Bank of Boston v. Bellott (1978)
1. Challenge MA law ban corps. spending on measures they didntt have
direct stake
2. Said this infringed on 1A rights of corps.
3. Doesnt matter that they have more money.
b. Candidate Elections
A. Austin v. Mich. Chamber of Comm. (1990)
1. State can set
Significant/Substantial
Severe (Triggers
limits on the
Strict)
source of funds
Tax or test on ability to cast ballot.
Select denying
(Harper v. VA). Not enough to trigger
franchise to some
used to contribute
strict scrut.
reqs the burden be
to political
necessary to meet
campaigns
compelling St int.
2.
Cant have
(Skafte)
segreg. funds
Electoral sys is arranged to
Anti-falsity in
and spend from
campaign laws/ gov
consistly voter/groups influ on pol
silencing of
proc as whol (Bandemeer)
one when youre
disapproved speech
not supposed to.
(119 Vote No! Comm)
c. Citizens United
Interference w/ pol partys assoc. by
Revolution
imposing who may participate
A. Citizens United v.
(Tashjian) or forcing them to accept
people they want. (CA Dem v.
FEC (2010)
Jones; WA State Grange)
Laws prohib speech
1. Cong. may not
on basis of content for
ban political
jud candidates (R
speech based
Party of MN v. White)
upon speakers
corporate identity.

12. Contribution Limits

after Buckley and Citizens United

a. When are Contribution Limits Too Low?

A. Nixon v. Shrink Mo Gov. PAC (2000)
1. The MO stat. limits amount of indiv. political contrib.. from $250-1k
depending on office and the size of the constituency.
2. The state claims that its interest is in preventing corruption.
3. Held: This limit is valid under Buckley
B. Randall v. Sorrell
Significant/Substantial
Severe (Triggers
(2006)
Strict)
1. Cannot limit
expenditures by
Tax or test on ability to cast
Select denying
a candid. during
ballot. (Harper v. VA). Not
franchise to some
an election cycle
enough to trigger strict
reqs the burden be
2. Cannot limit
scrut.
necessary to meet
pers. contrib. as
compelling St int.
low as $200-400
(Skafte)
3. Both against 1A
Electoral sys is arranged to
Anti-falsity in
Free Speech
campaign laws/ gov
consistly voter/groups
b. Campaign
silencing of
influ on pol proc as whol
Contributions and
disapproved speech
(Bandemeer)
Political Parties
(119 Vote No!
A. CO Rep. Fed.
Comm)
Interference w/ pol partys
Camp. Comm. v.
assoc. by imposing who
FEC (1996)
may participate (Tashjian)
1. Held: The fed.
or forcing them to accept
camp.-financing
people they want. (CA
limits on amount
Laws prohib speech
Dem v. Jones; WA State
parties may
on basis of content
Grange)
spend on Cong.
for jud candidates
races, as
(R Party of MN v.
established by
White)
FECA, violate 1A
rights when
applied to expend. a party made independently of any candidate's
campaign.
c. The Emergence of Super PACs and Other Outside Groups
A. Speechnow.org v. FEC (2010)
1. Allowed for Super PACs as companion to Citizens United
2. Groups can accept unlimited funds for IEs
3. However, they still have to register as pol. org. like other PACs

13.

Public Financing

a. Existing Public Financing Systems

A. In States
1. Four Reasons for:
a. (1) Overcome barriers to entry; (2) Increase competition; (3) reduce
influence of private money.; (4) Control campaign costs
2. Noone knows, due to lack of study, what infl. pub. fin. has on these
four factors
B. In Presidential Elections
1. Acceptance of public funds used to be universal until 1980s John
Connolly Repub.
2. 2008 was the demise of current public financing system
b. Is Public Financing Voluntary or Coercive?

A. AZ Free Enterp. Clubs Freedom PAC v. Bennett (2010)

1. SC said matching funds were coercive
2. No legit. state interest
3. 1A does not however, bar all public financing
c. Proposals for Further Reform
A. One group says incr. contrib. limits and remove overall caps in subsidized
races
1. Counter influence of PACs
2. However, opponents say individual small donations cant replace the
money of PACs
B. One group says give lump sum of 50-75k to individual major party
candidates and up personal contributions from $1k to $5k.
1. However, ignores third parties
2. This is kind of a voucher plan

14.

Campaign Finance Disclosure

a. Buckley v. Valeo (1976) See Above

b. McIntyre v. OH Elections Commission (1965)
A. Anonymous political speech still protected
B. In Buckley v. ACLF, held unconstit. to require paid petition circ. to wear ID
badge
c. Doe v. Reed (2010)
A. Gay rights group did not want to disclose individuals names who signed
referendum petition in favor or gay rights.
B. Not strict scrutiny
C. Disclosure Requirement does not necessarily violate 1A, but can.
D. In this case, they could get the preliminary injunction

15.

Background on Modern Lobbying

a. Zajac, Andrew, How Health Lobbyists Influenced Reform Bill

A. At least 166 aides from 9 Cong. leaders and 5 committ. involved in
shaping HC reform
B. Gave a bunch of money to both sides
b. Lichtblau, Eric, Lobbyists Line Up to Sway Special Committee
A. Lots of money to both sides
c. Allard, Nick, We Need More Lobbyists
A. Require annual amount of pro bono hours for lobbyists (like lawyers)
B. Give incentives to graduates who lobby on behalf of underrepresented
causes/groups

16.

Harriss and the FLRA

a. Federal Regulation of Lobbying Act 1946

b. Electoral Count Act
c. US v. Harriss (1954)
A. Ct. upheld, but narrowed scope and application of FRLA
B. Only applies to paid lobbyists who directly communicate with members of
Congress on pending federal legislation.
C. Therefore, those who only meet w/ staff members dont count under FRLA
D. Also, only applies to those individuals who spend half their time lobbying

17.

Contemporary Issues in Lobbying Regulations

18.

Lobbying and Campaign Finance Regulation

a. Lobbying Law in the Spotlight: Challenges and Proposed Improvements

(2011)
A. Add in
b. Kirkpatrick, David D., Law to Curb Lobbying Sends It Underground
A. People arent registering as official lobbyists to skirt the law
c. Froomkin, Dan, American Bar Association Takes Aim At Lobbying Law
Loopholes (2011)
A. Could be impractical
d. ABA Recommendations for Amending Lobbying Laws (2011)
A. Add in
e. D.C. Circ. Questions Obamas Ban on Lobbyists from Trade Advis. Panels
A. Add in
f. VandenDolder, Tess, White House Moves to Roll Back Some of Their
Restrictions on Corporate Lobbyists (2014)
g. Kady, Martin II, Keeping Grass-Roots Lobbying Under Wraps (2007)
A. Advoc. on left and right fending off mandate to reveal what spent to rally
supporters.
h. Milyo, Jeff, The Volokh Conspiracy: Why Regulate Grassroots Lobbying?
(2010)
A. Add in
a. Green Party of CT v. Garfield (2nd 2010)
A. Upheld great maj. of CTs new camp.-fin. reform law, incl. public finance
scheme