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Abstract:
In this Essay, we consider whether the Federal Election Commission (FEC) has the authority to regulate independent 527 organizations (e.g., Swiftboat Veterans for Truth, Moveon.org, etc.) as political committees under the Federal Election Campaign Act. This issue, which was hotly debated during the last election cycle when it was considered and ultimately tabled by the FEC, is an extremely complex one that requires a deep understanding of election, tax, administrative, and constitutional law. After considering how these areas of law intersect, we conclude that the FEC lacks the authority to regulate independent 527 organizations as political committees.

527 organizations, FEC, Buckley, MCFL

Abstract:
In this Review Essay I explore the rights-structure debate that has captivated the attention of election law scholars. The Essay juxtaposes the recent work of a leading individualist Professor Richard Hasen's new book, "The Supreme Court and Election Law," against the recent work of a leading structuralist, Professor Richard Pildes' recent Foreword to the Harvard Law Review.

I argue that even though the rights-structure debate produces much heat, it does not significantly advance the goal of understanding and evaluating the role of the Court in democratic politics. I aim to return election law to a dualistic understanding of the relationship between rights and structure, an understanding that prevailed in the early articulation of structuralism's relevance to judicial review of democratic politics. I shall argue that election law cases cannot be divided into neat categories along the individual rights and structuralism divide. Election law cases raise both issues of individual and structural rights. Therefore, the label attached to election law claims is immaterial. The fundamental questions are what are the values that judicial review ought to vindicate and how best to vindicate those values. These are questions that transcend the rights-structure divide.

election law, rights, structure, judicial review, Richard Hasen

Abstract:
The Electoral College has been subject to a constant barrage of criticism. This raises an obvious question: how has the College managed to survive despite its lack of popularity, its opacity and its generally controversial nature?

Commentators look to the wisdom and staying power of the founding generation as well as to the force of history and tradition. In this Article, we look carefully at a third possibility. That is, we look to the foundation of our political structure and the nature of our democratic commitments.

In this vein, we are particularly intrigued by the question of electoral legitimacy. To be clear, we are not interested in the question of legitimacy in and of itself. Rather, it is clear to us that the question of legitimacy - and more generally the larger debate surrounding the use of the College as the method of presidential selection - rests upon an infrequently articulated conception of democracy and an oft-debated notion of federalism.

In so doing, we conclude that before we can meaningfully talk about whether the Electoral College is worth keeping or changing, we must first come to grips with the scope of our democratic commitments. We must also grapple with the nature of the compromise that we have struck between state and federal interest in presidential elections. Until we struggle with and come to appreciate these two crucial foundations of our democratic ethos, the Electoral College debate will continue to consist of recycled ideas that will continue to be rejected.

Abstract:
Baker v. Carr is one of the Supreme Court's most important opinions, not least because its advent signaled the constitutionalization of democracy. Unfortunately, as is typical of the Court's numerous forays into democratic politics, the decision is not accompanied by an apparent vision of the relationship among democratic practice, constitutional law, and democratic theory. In this Article, I revisit Baker and provide several democratic principles that I argue justifies the Court's decision to engage the democratic process. I examine the decision from the perspective of one of its chief contemporary critics, Justice Frankfurter. I sketch an approach, described as constitutional pluralism, for thinking about Baker and other cases involving judicial supervision of democratic politics. Using constitutional pluralism as an interpretive tool, I argue that the aim of judicial involvement in democratic politics ought to be to vindicate specific democratic principles. I describe the conditions under which the federal courts should respect the judgment of democratic actors.

Abstract:
This Essay examines the Court's recent decision in Virginia v. Black. It argues that Black signifies a different approach to the constitutionality of statutes regulating cross burnings. It shows how the Court's conservatives have essentially accepted the intellectual framework and the mode of analysis suggested previously by the critical race theorists. In particular, this Essay explores the role that Justice Thomas plays in the case. The Essay explains Justice Thomas's active participation as a matter of epistemic authority and epistemic deference.

Justice Thomas, cross burning, RAV, Virginia v. Black, epistemic authority, deference, critical race theory

Abstract:
This Article contends that judicial supervision of excessive manipulation of electoral lines for partisan purposes - political gerrymandering - may be justified in a mature democracy. The Article responds to the debate among courts and commentators over whether political gerrymandering presents any constitutionally relevant harms and, further, whether courts may be able to resolve the structural issues presented by political gerrymandering claims. Drawing from political theory and political science, this Article develops a theory of institutional distortion and provides a justification for aggressive judicial review of questions of democratic governance. The Article does not argue that the United States Supreme Court should regulate political gerrymandering; instead, it argues that such regulation can be justified. This Article also develops a framework of election law dualism to resolve the structural challenges that political gerrymandering poses to adjudication.

constitutional law, jurisprudence, politics

Abstract:
This Essay, which was written for the Ohio State Law Journal's symposium on Election Law and the Roberts Court, examines the Court's decision in League of United Latin American Citizens (LULAC) v. Perry. The Essay explores two ways of reading LULAC: first as a racial representation case and second as a case concerned with representation itself. The essay argues that politics not race is the majority's worry in LULAC and that the case is the first application of Justice Kennedy's representation rights concept first introduced in Vieth.

race, redistricting, representation, Vieth, LULAC

Abstract:
This article develops a provocative approach for thinking about the role of race in democratic politics. I identify the Supreme Court's descriptive and normative struggles with racial identity, which have led many on the Court to question the constitutionality of the Voting Rights Act. I rely upon the social identity literature in social psychology, as well as the race and politics literature in political science, to demonstrate empirically the relationship between racial and political identity. I then use the right of assciation, particularly as developed by the Supreme Court in the party and ballot access cases, to argue that the First Amendment protects the right of votes of color to associate as voters of color where race and political identity are correlated. In so doing, I characterize the Court's attempt to grasp the proper role of race in democratic politics as a deeper struggle between equality and liberty values. I conclude by suggesting a framework for balancing liberty and equality concerns in the design of electoral institutions.

race, redistricting, racial identity, electoral structures, right of association, First Amendment