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Indiana  Law 
Review 


SYMPOSIUM 

Introduction:  A  Symposium  on  the  Law  of  Democracy 
Michael  J.  Pitts 

Keynote  Address:  What  Election  Law  Has  to  Say  to  Constitutional  Law 

Heather  K.  Gerken 

The  Founders'  Bush  v.  Gore:  The  1792  Election  Dispute  and  Its  Continuing  Relevance 

Edward  B.  Foley 

"Celebrating"  the  Tenth  Anniversary  of  the  2000  Election  Controversy:  What  the  World  Can  Learn 
from  the  Recent  History  of  Election  Dysfunction  in  the  United  States 

Nathaniel  Persily 

Public  Rights  and  Private  Rights  of  Action:  The  Enforcement  of  Federal  Election  Laws 

Daniel  P.  Tokaji 

Language  Assistance  and  Local  Voting  Rights  Law 
Angelo  N.  Ancheta 

Reinventing  Voting  Rights  Preclearance 
Kareem  U.  Crayton 

After  Citizens  United 
Michael  S.  Kang 

Disclosures  About  Disclosure 
Lloyd  Hitoshi  Mayer 

What  Changes  Do  Recent  Supreme  Court  Decisions  Require  for  Federal  Campaign  Finance 

Statutes  and  Regulations? 
Allison  R.  Hay  ward 

NOTE 

Sexting:  A  Response  to  Prosecuting  Those  Growing  Up  with  a  Growing  Trend 

Jordan  J.  Szymialis 


* 


INDIANA  UNIVERSITY 


SCHOOL  OF  LAW-INDIANAPOLIS 

IUPUI 


Volume  44  No.  1  2010 


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Essential  information.  Expert  analysis. 


Indiana  Law  Review 


Volume  44 


2010-2011 


Editor-in-Chief 

Kate  Mercer-Lawson 


Executive  Managing  Editor 

Sara  M.  Benson 

Senior  Executive  Editor 

Jennifer  Ekblaw 

Symposium  Editor 
Amanda  L.B.  Mulroony 

Articles  Editors 

Lauren  Berger 

Zachary  G.  Jacob 

Jared  W.  Josleyn 

Jordan  Szymialis 

Perry  Whan 


Executive  Notes  Editor 

Sarah  Orme 

Executive  Articles  Editors 

Charles  B.  Daugherty 
Mac  Schilling 


Note  Development  Editors 

Courtney  L.  Andreone 

Thomas  Landrigan 

Kyle  D.  McClammer 

Timothy  J.  Moriarty 

Justin  Spack 

David  T.  Vlink 


Associate  Editors 

Jonathan  T.  Faust 
Brian  K.  Jarman 


Ted  Batson,  Jr. 

Kory  Bell 

Courtney  Benson-Kooy 

Sean  Brown 

Amanda  Dalton 

Matthew  Dinn 

Erica  Drew 

Nick  Dugan 

Ian  Fleming 


Members 

Sarah  Fowler 

Matthew  Gaudin 

Molly  Gilland 

Jared  Haller 

John  Higgins 

Janelle  Kilies 

Lisa  Laws  Kohli 

Lara  Langeneckert 

Michael  Mullins 

Keith  Mundrick 


Meghan  Pitcher 

Sean  Roth 
Kirk  Severson 
James  Smerbeck 
Brian  Tekulve 
Alicia  Wanker 
Maritza  Webb 
Alex  Whitted 
Beau  Zoeller 


Editorial  Specialist 

Chris  Paynter 

Faculty  Advisors 

Andrew  R.  Klein 
R.  George  Wright 


Indiana  Law  Review 

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Indiana  University  School  of  Law — Indianapolis 
2010-2011  ADMINISTRATIVE  OFFICERS  AND  FACULTY 

Administrative  Officers 

Michael  A.  McRobbie,  President  of  the  University.  Ph.D.,  Australian  National  University. 
CHARLES  R.  BANTZ,  Chancellor,  Indiana  University-Purdue  University — Indianapolis.  B.A., 

M.A.,  University  of  Minnesota;  Ph.D.,  The  Ohio  State  University. 
GARY  R.  Roberts,  Dean  and  Gerald  L.  Bepko  Professor  of  Law.  B.A.,  Bradley  University; 

J.D.,  Stanford  University. 
PaulN.  Cox,  Vice  Dean  and  Centennial  Professor  of  Law.  B.S.,  Utah  State  University;  J.D., 

University  of  Utah;  LL.M.,  University  of  Virginia. 
JAMES  P.  Nehf,  Associate  Dean  for  Graduate  Studies  and  Cleon  H.  Foust  Fellow;  Professor 

of  Law  and  John  S.  Grimes  Fellow.  B.A.,  Knox  College;  J.D.,  University  of  North 

Carolina  Law  School. 
JONNA  KANE  MacDOUGALL,  Assistant  Dean  for  External  Affairs  and  Alumni  Relations.  B.A., 

M.A.,  Indiana  University;  J.D.,  Indiana  University  School  of  Law — Indianapolis. 
JOHNNY  Pryor,  Assistant  Dean  for  Student  Affairs.  B.A.,  Wittenberg  University;  J.D.,  Indiana 

University  Maurer  School  of  Law. 
CHASTITY  THOMPSON,  Assistant  Dean  for  Professional  Development.  A.S.,  B.A.,  Alabama  State 

University;  M.B.A.,  Auburn  University;  J.D.,  Indiana  University  School  of  Law — 

Indianapolis. 
MARK  V.  WUNDER,  Assistant  Dean  for  Development.  B.S.,  J.D.,  University  of  Iowa. 
ELIZABETH  ALLINGTON,  Director  of  Communications  and  Creative  Services.  B.A.,  Indiana 

University;  M.A.,  M.  Phil.,  New  York  University. 
TERESA  (Terri)  J.  CUELLAR,  Director  of  Technology  Services.  B.S.,   St.   Bonaventure 

University,  New  York. 
JOYCE  M.  HERTKO,  Director  of  Major  Gifts.  B.A.,  Knox  College;  M.S.,  Western  Illinois 

University;  Ph.D.,  Indiana  University. 
AMANDA  KAMMAN,  Director  of  Fund  Raising  and  Development  Services.  B.A.,  Indiana 

University. 
PRISCILLAD.  Keith,  Director  of  Research  and  Projects,  Hall  Center  for  Law  and  Health.  B.S., 

Spelman  College;  M.S.,  Atlanta  University;  J.D.,  Indiana  University  School  of  Law — 

Indianapolis. 
Patricia  K.  Kinney,  Director  of  Admissions.  B.S.,  Purdue  University;  J.D.,  Indiana  University 

School  of  Law — Indianapolis. 
VIRGINIA  MARSCHAND,  Director  of  Administrative  and  Fiscal  Affairs.  B.A.,  M.P.A.,  Indiana 

University;  J.D.,  Indiana  University  School  of  Law — Indianapolis. 
SONJARlCE,  Egypt  Program  Director.  B.A,  Purdue  University;  J.D.,  Indiana  University  School 

of  Law — Indianapolis. 
JOHN  R.  SCHAIBLEY,  III,  Executive  Director  of  The  Center  for  Intellectual  Property  Law  and 

Innovation.  B.A.,  Purdue  University;  J.D.,  Indiana  University  Maurer  School  of  Law. 
La  WANDA  W.  WARD,  Director  of  Pro  Bono  Program  and  Public  Interest.  B.A.,  Murray  State 

University;  M.A.,  Illinois  State  University;  M.S.,  Old  Dominion  University;  J.D., 

Indiana  University  School  of  Law — Indianapolis. 
JACOB  Manaloor,  Associate  Director  for  Contracts,  Grants  and  Fund  Raising.  B.S.,  Indiana 

University  Kelley  School  of  Business;  J.D.,  Indiana  University  School  of  Law — 

Indianapolis. 
CARLOTA  TOLEDO,  Associate  Director  of  Student  Affairs.  A.B.,  University  of  Chicago;  J.D., 

DePaul  University  College  of  Law. 
SUSIE  Agnew,  Assistant  Director  of  Student  Services.  Clark  College. 
William  J.  BAKER,  Assistant  Director  of  Technology  Services. 
SUSAN  BUSHUE-RUSSELL,  Assistant  Director  of  Administration  and  Finance.  A.A.S.,  Lakeland 

College;  B.S.,  Eastern  Illinois  University. 
Karen  H.  MILLER,  Assistant  Director  for  Admissions.  Midway  College. 
LISA  SCHRAGE,  Assistant  Director  for  Donor  Relations.  B.S.,  Marian  College. 

Faculty 

Cynthia  M.  ADAMS,  Clinical  Professor  of  Law  and  Co-Director  of  the  Latin  American  Law 
Program.  B.A.,  Kentucky  Wesleyan  College;  J.D.,  Indiana  University  School  of 
Law — Indianapolis. 


JUDITH  FORD  ANSPACH,  Professor  of  Law  and  Director,  Ruth  Lilly  Law  Library.  B.S.,  M.L.S., 

Kent  State  University;  J.D.,  Mississippi  College  School  of  Law. 
CynthiaBaker,  Clinical  Associate  Professor  of  Law  and  Director,  Program  on  Law  and  State 

Government.  B.A.,  J.D.,  Valparaiso  University. 
GERALD  L.  BEPKO,  Indiana  University-Purdue  University — Indianapolis  Chancellor  Emeritus, 

Indiana  University  Trustee  Professor  and  Professor  of  Law.  B.S.,  Northern  Illinois 

University;  J.D.,  ITT/Chicago-Kent  College  of  Law;  LL.M.,  Yale  Law  School. 
Shawn  Boyne,  Associate  Professor  of  Law  and  Dean's  Fellow.  B.A.,  Cornell  University; 

M.B.A.,  University  of  Minnesota,  J.D.,  University  of  Southern  California's  Gould 

School  of  Law,  M.A.,  University  of  Wisconsin,  L.L.M.,  Justus-Liebig-Universtat. 
Karen  E.  Bravo,  Professor  of  Law;  John  S.  Grimes  Fellow  and  Dean 's  Fellow.  B.A.,  The 

University  of  the  West  Indies;  J.D.,  Columbia  University  School  of  Law;  LL.M.,  New 

York  University  School  of  Law. 
Robert  Brookins,  Professor  of  Law.  B.S.,  University  of  South  Florida;  J.D.,  Ph.D.,  Cornell 

University. 
Kenneth  D.  Chester,  Clinical  Associate  Professor  of  Law.  B.A.,  Pennsylvania  State 

University;  J.D.,  University  of  Pittsburgh  School  of  Law. 
DANIEL  H.  Cole,  R.  Bruce  Townsend  Professor  of  Law.  A.B.,  Occidental  College;  A.M., 

University  of  Chicago;  J.D.,  Lewis  and  Clark  Law  School;  J.S.M.,  J.S.D.,  Stanford 

Law  School. 
JEFFREY  O.  COOPER,  Associate  Professor  of  Law.  A.B.,  Harvard  University;  J.D.,  University  of 

Pennsylvania  Law  School. 
ERIC  Dannenmaier,  Associate  Professor  of  Law  and  Dean 's  Fellow.  B.A.,  Drury  College; 

J.D.,  Boston  University;  LL.M.,  Columbia  University;  M.  St.,  Oxford  University. 
James  D.  Dimitri,  Clinical  Professor  of  Law.  B.S.,  Indiana  University;  J.D.,  Valparaiso 

University  School  of  Law. 
JENNIFER  A.  Drobac,  Professor  of  Law  and  Director,  Central  and  Eastern  European  Law 

Summer  Program.  B.A.,  M.A.,  Stanford  University;  J.D.,  J.S.D.,  Stanford  Law 

School. 
GEORGE  E.  EDWARDS,  Carl  M.  Gray  Professor  of  Law;  Faculty  Advisor  to  the  LL.M.  Track  in 

International  Human  Rights  Law  (term  ending,  Spring  2011 );  Director,  Program  in 

International  Human  Rights  Law  and  John  S.  Grimes  Fellow.  B.A.,  North  Carolina 

State  University;  J.D.,  Harvard  Law  School. 
FRANK  EMMERT,  John  S.  Grimes  Professor  of  Law  and  Executive  Director,  Center  for 

International  and  Comparative  Law.   Erstes  Juristisches  Staatsexamen  (J.D.), 

University  of  Munich  Law  School;  LL.M.,  The  University  of  Michigan  Law  School; 

Ph.D.,  University  of  Maastricht;  Diploma,  European  University  Institute. 
NICHOLAS  GEORGAKOPOULOS^aro/^T?.  Woodard  Professor  of  Law.  PtyhionNomikis,  Athens 

University  School  of  Law;  LL.M.,  S.J.D.,  Harvard  Law  School. 
CARRIE  HAGAN,  Clinical  Associate  Professor  of  Law.  B.A.,  University  of  Kansas;  J.D., 

University  of  Cincinnati,  College  of  Law. 
JOHN  LAWRENCE  Hill,  Professor  of  Law;  Adjunct  Professor  of  Philosophy  and  John  S.  Grimes 

Fellow.  B.A.,  Northern  Illinois  University;  J.D.,  Ph.D.,  Georgetown  University. 
LINDA  Kelly  Hill,  M.  Dale  Palmer  Professor  of  Law.  B.A.,  J.D.,  University  of  Virginia. 
MAXHUFFMAN,  Associate  Professor  of  Law  and Dean 's  Fellow.  B.A.,  Cornell  University,  J.D., 

University  of  Chicago  College  of  Law. 
LAWRENCE  A.  JEGEN,  III,  Thomas  F.  Sheehan  Professor  of  Tax  Law  and  Policy.  A.B.,  Beloit 

College;  J.D.,  M.B.A.,  The  University  of  Michigan;  LL.M.,  New  York  University 

School  of  Law. 
ROBERT  A.  Katz,  Professor  of  Law  and  John  S.  Grimes  Fellow.  A.B.,  Harvard  College;  J.D., 

University  of  Chicago  Law  School. 
Eleanor  D.  KINNEY,  Hall  Render  Professor  of  Law,  Co-Director  of  the  William  S.  and 

Christine  S.  Hall  Center  for  Law  and  Health.  B.A.,  Duke  University;  M.A., 

University  of  Chicago;  J.D.,  Duke  University  School  of  Law;  M.P.H.,  University  of 

North  Carolina. 
ANDREW  R.  Klein,  PaulE.  Beam  Professor  of  Law;  Chief  of  Staff  Office  of  the  Chancellor  of 

Indiana  University-Purdue  University — Indianapolis.  B.A.,  University  of  Wisconsin; 

J.D.,  Emory  University  School  of  Law. 
Norman  LEFSTEIN,  Professor  of  Law  and  Dean  Emeritus.  LL.B.,  University  of  Illinois  College 

of  Law;  LL.M.,  Georgetown  University  Law  School. 
Maria  Pabon  Lopez,  Professor  of  Law  and  Dean 's  Fellow.  B.A.,  Princeton  University;  J.D., 

University  of  Pennsylvania  Law  School. 


GERARD  N.  MAGLIOCCA,  Professor  of  Law,  Co-Director,  Chinese  Law  Summer  Program  and 

John  S.  Grimes  Fellow.  B.A.,  Stanford  University;  J.D.,  Yale  Law  School. 
Allison  Martin,  Clinical  Associate  Professor  of  Law.  B.S.,  J.D.,  University  of  Illinois. 
DEBORAH  MCGREGOR,  Clinical  Professor  of  Law  and  Assistant  Director  of  Legal  Analysis, 

Research  and  Communication.  B.A.,  University  of  Evansville;  J.D.,  Georgetown 

University  Law  School. 
Susanah  M.  Mead,  Professor  of  Law.  B.A.,  Smith  College;  J.D.,  Indiana  University  School 

of  Law — Indianapolis. 
Emily  MORRIS,  Associate  Professor  ofLaw  and  Dean 's  Fellow.  A.B.,  Harvard  University,  J.D., 

University  of  Michigan  Law  School. 
Novella  Nedeff,  Clinical  Associate  Professor  of  Law.  B.A.,  J.D.,  Indiana  University. 
David  ORENTLICHER,  Samuel  R.  Rosen  Professor  of  Law  and  Co-Director  of  the  William  S. 

and  Christine  S.  Hall  Center  for  Law  and  Health.  A.B.,  Brandeis  University;  J.D., 

M.D.,  Harvard  College. 
Joanne  Orr,  Clinical  Professor  of  Law.  B.S.,  Indiana  State  University;  J.D.,  California 

Western  School  of  Law. 
ANTONY  PAGE,  Associate  Professor  of  Law  and  Dean 's  Fellow.  B.  Comm.,  McGill  University; 

M.B.A.,  Simon  Fraser  University;  J.D.,  Stanford  Law  School. 
MICHAEL  J.  PITTS,  Associate  Professor  of  Law;  Dean 's  Fellow  and  John  S.  Grimes  Fellow. 

B.S.J.,  Northwestern  University;  J.D.,  Georgetown  University  Law  Center. 
Peter  A.  Prescott,  Associate  Professor  of  Law.  B.A.,  Augustana  College;  M.S.,  The 

University  of  Chicago;  M.P.A.,  The  University  of  Texas  at  Austin;  J.D.,  The 

University  of  Houston  Law  Center. 
Fran  Quigley,  Visiting  Professor  of  Law.  B.A.,  Hanover  College;  M.A.,  Indiana  University; 

J.D.,  Indiana  University  School  of  Law — Indianapolis. 
Florence  Wagman  Roisman,  William  F.  Harvey  Professor  of  Law.  B.A.,  University  of 

Connecticut;  LL.B.,  Harvard  Law  School. 
JOAN  M.  Ruhtenberg,  Professor  of  Law  and  Director  of  Legal  Analysis,  Research  and 

Communication.  B.A.,  Mississippi  University  for  Women;  J.D.,  Indiana  University 

School  of  Law — Indianapolis. 
JoelM.  Schumm,  Clinical  Professor  of  Law  and  Director,  Judicial  Externship  Program.  B.A., 

Ohio  Wesleyan  University;  M.A.,  University  of  Cincinnati;  J.D.,  Indiana  University 

School  of  Law — Indianapolis. 
Carlton  M.  Waterhouse,  Associate  Professor  of  Law  and  Dean's  Fellow.    B.S., 

Pennsylvania  State  University;  J.D.,  Howard  University  School  of  Law;  MT.S., 

Emory  University,  Chandler  School  of  Theology;  Ph.D.,  Emory  University. 
Frances  Watson,  Clinical  Professor  of  Law.  B.S.,  Ball  State  University;  J.D.,  Indiana 

University  School  of  Law — Indianapolis. 
Lloyd  T.  Wilson,  Jr.,  Professor  of  Law  and  Co-Director,  Chinese  Law  Summer  Program. 

B.A.,  Wabash  College;  M.A.,  Duke  University;  J.D.,  Indiana  University  School  of 

Law — Bloomington. 
MARY  T.  WOLF,  Clinical  Professor  of  Law  and  Director  of  Clinical  Programs  and  Externs  hips. 

B.A.,  Saint  Xavier  College;  J.D.,  University  of  Iowa  College  of  Law. 
R.  George  Wright,  Lawrence  A.  Jegen  III  Professor  of  Law.  A.B.,  University  of  Virginia; 

Ph.D.,  Indiana  University;  J.D.,  Indiana  University  School  of  Law — Indianapolis. 

Emeriti  Faculty 

Thomas  B.  Allington,  Professor  of  Law  Emeritus.  B.S.,  J.D.,  University  of  Nebraska;  LL.M., 

New  York  University  School  of  Law. 
Edward  P.  Archer,  Professor  of  Law  Emeritus.  B.M.E.,  Renesselaer  Polytechnic  Institute; 

J.D.,  LL.M.,  Georgetown  University  Law  School. 
JAMES  F.  BAILEY,  III,  Professor  of  Law  Emeritus  and  Director  of  the  Law  Library  Emeritus. 

A.B.,  J.D.,  M.A.L.S.,  The  University  of  Michigan. 
Clyde  Harrison  CROCKETT,  Professor  of  Law  Emeritus.  A.B.,  J.D.,  University  of  Texas; 

LL.M.,  University  of  London  (The  London  School  of  Economics  and  Political 

Science). 
Debra  A.  Falender,  Professor  of  Law  Emerita.  A.B.,  Mount  Holyoke  College;  J.D.,  Indiana 

University  School  of  Law — Indianapolis. 
David  A.  Funk,  Professor  of  Law  Emeritus.  A.B.,  College  of  Wooster;  J.D.,  Case  Western 

Reserve  University  School  of  Law;  M.A.,  The  Ohio  State  University;  LL.M.,  Case 

Western  Reserve  University;  LL.M.,  Columbia  Law  School. 


Paul  J.  Galanti,  Professor  of  Law  Emeritus.  A.B.,  Bowdoin  College;  J.D.,  University  of 

Chicago  Law  School. 
Helen  P.  Garfield,  Professor  of  Law  Emerita.  B.S.J.,  Northwestern  University;  J.D., 

University  of  Colorado  School  of  Law. 
HAROLD  GREENBERG,  Professor  of  Law  Emeritus.  A.B.,  Temple  University;  J.D.,  University 

of  Pennsylvania  Law  School. 
Jeffrey  W.  Grove,  Professor  of  Law  Emeritus.  A.B.,  Juniata  College;  J.D.,  George 

Washington  University  Law  School. 
WILLIAM  F.  HARVEY,  Carl  M.  Gray  Professor  of  Law  &  Advocacy  Emeritus.  A.B.,  University 

of  Missouri;  J.D.,  LL.M.,  Georgetown  University  Law  School. 
W.  William  Hodes,  Professor  of  Law  Emeritus,  A.B.,  Harvard  College;  J.D.,  Rutgers 

University  School  of  Law — Newark. 
William  Andrew  Kerr,  Professor  of  Law  Emeritus.  A.B.,  West  University;  B.S.,  Duke 

University;  J.D.,  LL.M.,  Harvard  Law  School. 
William  E.  Marsh,  Professor  of  Law  Emeritus.  B.S.,  J.D.,  University  of  Nebraska. 
RONALD  W.  POLSTON,  Professor  of  Law  Emeritus.  B.S.,  Eastern  Illinois  University;  LL.B., 

University  of  Illinois  College  of  Law. 
KENNETH  M.   STROUD,  Professor  of  Law  Emeritus.   A.B.,   J.D.,   Indiana  University — 

Bloomington. 
JAMES  W.  TORKE,  Carl  M.  Gray  Professor  of  Law  Emeritus.  B.S.,  J.D.,  University  of 

Wisconsin. 
JAMES  PATRICK  WHITE,  Professor  of  Law  Emeritus.  A.B.,  University  of  Iowa;  J.D.,  LL.M., 

George  Washington  University  Law  School. 
LAWRENCE  P.  Wilkins,  William  R.  Neale  Professor  of  Law  Emeritus.  B.A.,  The  Ohio  State 

University;  J.D.,  Capitol  University  Law  School;  LL.M.,  University  of  Texas  School 

of  Law. 

Law  Library  Faculty 

JUDITH  FORD  ANSPACH,  Professor  of  Law  and  Director,  Ruth  Lilly  Law  Library.  B.S.,  M.L.S., 

Kent  State  University;  J.D.,  Mississippi  College  School  of  Law. 
DEBRA  DENSLAW,  Reference  Librarian.  B.A.,  Franklin  College;  M.S.,  University  of  Illinois, 

Urbana-Champaign;  J.D.,  Valparaiso  School  of  Law. 
Richard  Humphrey,  Reference  Librarian.  A. A.,  Brewton-Parker  Junior  College;  B.A., 

Georgia  Southwestern  College;  M.L.S.,  University  of  Kentucky. 
WENDELL  E.  JOHNTING,  Assistant  Director  for  Technical  Services.  A.B.,  Taylor  University; 

M.L.S.,  Indiana  University. 
CATHERINE  LEMMER,  Head  of  Information  Services.   B.A.,  Lawrence  University;  J.D., 

University  of  Wisconsin;  M.S.,  University  of  Illinois. 
CHRIS  E.  LONG,  Cataloging  Librarian.  B.A.,  Indiana  University;  M.A.,  Indiana  University; 

M.L.S.,  Indiana  University. 
Steven  R.  Miller,  Reference  Librarian.  B.S.,  Lebanon  Valley  College  of  Pennsylvania;  M.A., 

Dominican  University;  M.S.,  Northwestern  University;  J.D.,  The  John  Marshall  Law 

School. 
MAHNAZ  K.  MOSHFEGH,  Serials/Acquisitions  Librarian.  B.A.,  National  University  of  Iran; 

M.S.,  Tehran  University;  M.A.,  Ball  State  University;  M.L.S.,  Ph.D.,  Indiana 

University. 
Miriam  A.  Murphy,  Associate  Director.  B.A.,  Purdue  University;  J.D.,  M.L.S.,  Indiana 

University — Bloomington. 
KlYOSHlOTSV,  Automated  Services  and  Media  Librarian.  A.A.,  Parkland  College;  A.B.,  M.S., 

C.A.S.,  University  of  Illinois. 


Indiana  Law  Review 


Volume  44 2010 Number  1 

Copyright  ©  2010  by  the  Trustees  of  Indiana  University 

TABLE  OF  CONTENTS 
SYMPOSIUM 

Introduction:  A  Symposium  on  the  Law 

of  Democracy MichaelJ.  Pitts  1 

Keynote  Address:  What  Election  Law  Has  to  Say 

to  Constitutional  Law Heather  K.  Gerken  1 

The  Founders'  Bush  v.  Gore:  The  1792  Election  Dispute 

and  Its  Continuing  Relevance    Edward  B.  Foley  23 

"Celebrating"  the  Tenth  Anniversary  of  the  2000  Election 
Controversy:  What  the  World  Can  Learn  from  the 
Recent  History  of  Election  Dysfunction  in  the 
United  States   Nathaniel  Persily  85 

Public  Rights  and  Private  Rights  of  Action:  The  Enforcement 

of  Federal  Election  Laws Daniel  P.  Tokaji  1 13 

Language  Assistance  and  Local  Voting  Rights  Law    .  .  .  Angelo  N.  Ancheta  161 

Reinventing  Voting  Rights  Preclearance  Kareem  U.  Cray  ton  201 

After  Citizens  United Michael  S.  Kang  243 

Disclosures  About  Disclosure    Lloyd  Hitoshi  Mayer  255 

What  Changes  Do  Recent  Supreme  Court  Decisions  Require 
for  Federal  Campaign  Finance  Statutes 
and  Regulations?   Allison  R.  Hayward  285 

NOTE 

Sexting:  A  Response  to  Prosecuting  Those  Growing  Up 

with  a  Growing  Trend   Jordan  J.  Szymialis  301 


Volume  44  Number  1 


Indiana  Law  Review 

Volume  44  2010  Number  1 


SYMPOSIUM 


Introduction:  A  Symposium  on 
the  Law  of  Democracy 


Michael  J.  Pitts* 

The  first  decade  of  the  twenty- first  century  has  come  to  a  close,  and  it  has 
certainly  been  an  interesting  one  for  the  rapidly  maturing  field  of  election  law. 
The  new  century  commenced  with  what  might  be  described  as  the  "big  bang"  of 
election  law — the  drama  of  Bush  v.  Gore)  Bush  v.  Gore  looms  large  for  at  least 
a  couple  of  reasons.  First,  the  case  put  an  exclamation  point  on  the  growth  in  the 
constitutionalization  of  election  law.2  Second,  the  events  in  Florida  during  the 
2000  election  created  what  now  amounts  to  a  third  recognized  subfield  of  election 
law — election  administration — to  accompany  the  other  already  prominent 
sub  fields  of  voting  rights  and  campaign  finance. 

Beyond  Bush  v.  Gore,  the  first  decade  of  the  new  century  also  brought  a  wave 
of  judicial  decisions  and  statutory  shifts.  Sticking  with  election  administration 
for  a  moment,  2002  saw  enactment  of  the  Help  America  Vote  Act  (HAVA)3  as 
a  reaction  to  the  events  surrounding  the  hotly  disputed  2000  election.  The  HAVA 
introduced  the  concepts  of  statewide  voter  registration  databases  and  provisional 
ballots  to  the  entire  country  while  also  taking  aim  at  improving  the  mechanisms 
(i.e.,  machinery)  that  voters  use  to  cast  ballots.  The  HAVA,  in  turn,  spawned  new 
thinking  about  election  administration  by  the  states,  with  several  adopting 
controversial  provisions  requiring  registered  voters  to  present  government-issued 
photo  identification  as  a  condition  of  casting  a  countable  ballot.4  Indeed,  Indiana 
was  one  of  the  states  that  passed  such  a  law,  and  a  subsequent  equal  protection 
challenge  to  Indiana's  law  ultimately  worked  its  way  to  the  United  States 
Supreme  Court  in  Crawford  v.  Marion  County  Election  Board.5  Moreover,  the 
federal  government's  work  in  election  administration  was  not  limited  to  passage 
of  the  HAVA.  In  2009,  Congress  passed  the  Military  and  Overseas  Voter 
Empowerment   Act   (MOVE),6   representing   yet   another   landmark   in   the 


*  Associate  Professor,  Dean's  Fellow,  Indiana  University  School  of  Law — Indianapolis. 

1.  531  U.S.  98(2000). 

2.  See  generally  Richard  H.  Pildes,  Foreword:   The  Constitutionalization  of  Democratic 
Politics,  118  Harv.  L.  Rev.  28,  55-83  (2004). 

3.  Pub.  L.  No.  107-252,  116  Stat.  1666  (2002). 

4.  Senate  Enrolled  Act  No.  438,  Pub.  L.  No.  109,  2005  Ind.  Acts  p.2005. 

5.  553  U.S.  181  (2008). 

6.  Pub.  L.  No.  1 1 1-84,  123  Stat.  2190  (2009). 


INDIANA  LAW  REVIEW  [Vol.  44: 1 


continuing  effort  to  fully  enfranchise  military  and  overseas  voters. 

The  voting  rights  sphere  was  equally  as  active.  As  always,  the  Supreme 
Court  issued  a  number  of  decisions  interpreting  the  statutory  framework  found 
in  the  Voting  Rights  Act.  At  the  beginning  of  the  decade,  the  Court  rendered 
opinions  in  Reno  v.  Bossier  Parish  School  Board1  and  Georgia  v.  Ashcroff  that 
limited  the  application  of  the  Section  5  preclearance  provision.  Congress, 
however,  legislatively  reversed  both  of  these  judicial  decisions  in  2006  by 
amending  Section  5  while  also  extending  the  preclearance  provision  for  another 
twenty-five  years.9  That  same  year,  the  Court  for  the  first  time  in  two  decades 
found  a  violation  of  the  Section  2  "results"  test  in  the  context  of  Texas's  wild 
post-2000  redistricting  battles.10  Yet  by  the  end  of  the  decade,  the  Court  had 
returned  to  its  more  skeptical  view  of  the  Voting  Rights  Act.  In  Bartlett  v. 
Strickland,11  the  Court  limited  the  application  of  Section  2.  And  in  Northwest 
Austin  Municipal  Utility  District  No.  One  v.  Holder,11  the  Court  interpreted 
Section  5  in  a  novel  manner  to  expand  the  ability  of  local  governments  to  escape 
the  preclearance  requirement  while  simultaneously  using  extensive  dicta  to  call 
into  question  the  constitutionality  of  Congress's  2006  extension  of  the 
preclearance  regime. 

Like  voting  rights,  the  area  of  campaign  finance  also  witnessed  an  extensive 
conversation  between  Congress  and  the  Court  about  regulation  and  its 
constitutional  limits.  In  2002,  Congress  passed  the  Bipartisan  Campaign  Reform 
Act  (BCRA)13  as  a  means  of  limiting  the  influence  of  money  in  elections.  At 
first,  the  Court  was  deferential  to  the  new  regulations,  upholding  several 
important  provisions  of  the  BCRA  in  McConnell  v.  Federal  Election 
Commission}*  But  a  shift  in  the  Court  that  traded  Chief  Justice  William 
Rehnquist  and  Justice  Sandra  Day  O'Connor  for  Chief  Justice  John  Roberts  and 
Justice  Samuel  Alito  resulted  in  what  appears  to  be  a  major  transformation  of  the 
Court's  views  on  campaign  finance  regulation.  In  a  series  of  decisions  in  the  last 
half  of  the  decade  from  FEC  v.  Wisconsin  Right  to  Life,  Inc.15  to  Davis  v.  FEC16 
to  Citizens  United  v.  FEC,11  the  Court  rolled  back  on  its  deferential  posture  and 
demonstrated  a  far  greater  willingness  both  to  limit  the  scope  of  campaign  finance 
regulations  and  to  strike  them  down  in  their  entirety. 


7.  528  U.S.  320  (2000). 

8.  539  U.S.  461(2003). 

9.  Fannie  Lou  Hamer,  Rosa  Parks,  and  Coretta  Scott  King  Voting  Rights  Act 
Reauthorization  and  Amendments  Act  of  2006,  Pub.  L.  No.  109-246,  120  Stat.  577  (codified  in 
scattered  sections  of  42  U.S.C.). 

10.  League  of  United  Latin  Am.  Citizens  v.  Perry,  548  U.S.  399  (2006). 

11.  129  S.  Ct.  1231  (2009). 

12.  129S.  Ct.  2504(2009). 

13.  Pub.  L.  No.  107-155,  1 16  Stat.  81  (codified  in  scattered  sections  of  42  U.S.C.). 

14.  540  U.S.  93  (2003),  overruled  in  part  by  Citizens  United  v.  FEC,  130  S.  Ct.  876  (2010). 

15.  551  U.S.  449  (2007). 

16.  128S.  Ct.  2759(2008). 

17.  130S.  Ct.  876(2010). 


2010]  INTRODUCTION 


It  was  with  many  of  these  events  in  mind  when  thirteen  law  professors 
gathered  on  April  8  and  9,  2010,  at  Indiana  University  School  of 
Law — Indianapolis  to  discuss  the  past,  present,  and  future  of  the  law  of 
democracy.  In  front  of  a  large  audience  (thus  signifying  the  tremendous  public 
interest  in  these  issues),  these  prominent  legal  academics  explained,  critiqued,  and 
advocated  for  change  in  the  areas  of  election  administration,  voting  rights,  and 
campaign  finance.  The  discussion  that  commenced  on  those  days  now  continues 
in  this  volume  with  nine  articles  certain  to  inform  future  debate  related  to  the  law 
of  democracy.  What  follows  here,  then,  is  a  brief  description  of  the  contents  of 
this  volume. 

Even  a  decade  later,  the  2000  presidential  election  still  lingers  in  the  minds 
of  many,  and  a  couple  of  articles  in  this  volume  use  that  election  as  a  launching 
point  for  discussion  of  where  election  administration  needs  to  go.  Edward  Foley 
notes  how  that  election  and  the  decision  in  Bush  v.  Gore  exposed  a  critical 
weakness  in  that  the  United  States  Constitution  does  not  create  an  institution  for 
resolving  disputed  elections.  Professor  Foley  then  sets  out  to  answer  the  question 
of  why  the  Founders  did  not  provide  for  such  an  institution.  His  answer  is  that 
the  Founders  had  no  experience  in  resolving  disputed  elections  for  executive 
positions;  after  all,  their  primary  experience  with  executive  power  had  been  a 
king.  Moreover,  when  confronted  with  such  a  dispute  during  the  New  York 
gubernatorial  election  in  1792,  the  Founders  were  at  a  loss  for  answers  about  how 
to  resolve  the  dispute.  Professor  Foley  then  digs  deep  into  the  history  of  that 
1792  election — focusing  on  the  views  of  such  luminaries  as  Hamilton,  Jefferson, 
Madison,  and  Jay — for  lessons  that  might  help  us  today. 

Nathaniel  Persily  uses  Bush  v.  Gore  as  a  means  of  pointing  out  what  the  rest 
of  the  world  might  learn  from  our  experience  in  terms  of  election  administration. 
After  recounting  the  litany  of  problems  (e.g.,  voter  registration  and  ballot  design) 
during  Florida  2000,  Professor  Persily  identifies  several  election  administration 
goals  that  reformers  around  the  world  should  try  to  meet,  including  accurately 
capturing  the  preferences  of  those  who  cast  ballots,  widespread  participation,  and 
public  confidence  in  the  administration  of  elections.  Professor  Persily  then, 
importantly,  discusses  the  need  to  measure  whether  those  values  are  being  met. 

Daniel  Tokaji  tackles  a  different  issue  that  has  moved  to  the  forefront 
following  Bush  v.  Gore  and  passage  of  the  HAVA:  in  what  situations  should 
there  be  a  private  right  of  action  to  sue  for  violations  of  federal  election  statutes? 
Professor  Tokaji  notes  how  in  recent  years  the  Supreme  Court  has  curtailed 
private  enforcement  of  federal  statutes.  While  not  necessarily  quibbling  with  the 
Court's  overall  doctrinal  shift,  Professor  Tokaji  does  take  issue  with  the 
application  of  the  doctrine  in  the  context  of  federal  election  statutes.  He  argues 
that  the  Court  needs  to  shift  its  doctrine  and  allow  greater  access  for  private 
litigants  to  the  courts  because  of  the  vital  role  federal  courts  play  in  overseeing 
elections. 

Angelo  Ancheta  provides  a  bridge  between  election  administration  and  voting 
rights.  His  piece  focuses  on  the  laws  aimed  at  assisting  voters  who  are  members 
of  language-minority  groups  in  casting  ballots  by  providing  things  like 
registration  materials  and  ballots  in  languages  other  than  English.  At  the  federal 
level,  these  requirements  are  embodied  in  certain  provisions  of  the  Voting  Rights 


INDIANA  LAW  REVIEW  [Vol.  44: 1 


Act.  Professor  Ancheta,  however,  demonstrates  the  inadequacy  of  federal  laws 
and,  importantly,  shifts  the  focus  to  state  and  local  government  activity  designed 
to  foster  participation  among  language-minority  voters.  In  doing  so,  he  identifies 
several  conditions  under  which  state  and  local  governments  have  adopted  laws 
and  procedures  in  the  absence  of  an  explicit  federal  mandate.  Even  more 
importantly,  he  shows  how  the  goals  of  local  laws  aimed  at  ballot  access  for 
language-minority  groups  do  not  reflect  a  response  to  past  discrimination  but 
rather  reflect  a  desire  to  foster  civic  participation. 

Kareem  Crayton  focuses  on  another  integral  provision  of  the  Voting  Rights 
Act:  the  preclearance  requirement  embodied  in  Section  5.  That  provision 
requires  certain  state  and  local  governments  to  get  preapproval  for  any  change 
they  wish  to  make  to  their  election  laws  in  order  to  prevent  the  implementation 
of  changes  that  would  discriminate  against  racial  and  ethnic  minority  voters. 
Taking  a  cue  from  recent  academic  and  Supreme  Court  skepticism  about  the 
efficacy  of  Section  5  in  the  twenty-first  century,  Professor  Crayton  thinks  that 
Section  5  needs  to  be  reinvented  in  order  to  solve  a  number  of  the  "pathologies" 
that  have  developed  over  the  years  as  a  result  of  the  preclearance  provision.  In 
designing  that  reinvention,  Professor  Crayton  thinks  there  would  be  great  utility 
in  looking  for  guidance  from  another  reinvention  effort — the  Reinventing 
Government  initiative  undertaken  by  President  William  Jefferson  Clinton's 
administration.  In  the  end,  what  Professor  Crayton  suggests  is  an  alternate 
framework  that  helps  establish  a  set  of  metrics  for  determining  when  a 
jurisdiction  has  achieved  the  goals  of  the  preclearance  process. 

While  developments  in  the  last  decade  related  to  election  administration  and 
voting  rights  generated  substantial  discussion  at  the  symposium,  the  event  that 
may  have  loomed  largest  was  the  ground-breaking  decision  in  Citizens  United  v. 
FEC.  In  that  case,  a  majority  of  the  Supreme  Court  held  that  corporations  had  the 
constitutional  right  to  make  independent  expenditures  in  federal  elections.  Three 
of  the  authors  in  this  volume  focused  on  the  ramifications  that  case  will  have  for 
the  future  of  campaign  finance  regulation. 

Michael  Kang  sees  Citizens  United  as  potentially  being  the  most  important 
campaign  finance  decision  in  decades  due  to  the  Court's  narrowing  of  the 
government  interest  in  campaign  finance  regulation.  For  many  years  the 
Rehnquist  Court  had  been  fairly  deferential  to  campaign  finance  regulation, 
subtly  expanding  the  government  interest  in  enacting  those  regulations.  In 
contrast,  Professor  Kang  views  Citizens  United  as  a  move  to  narrow  the 
government  interest  to  quid  pro  quo  corruption  as  the  sole  grounds  upon  which 
campaign  finance  regulation  may  rest.  Professor  Kang  then  examines  how  this 
narrowing  of  the  government  interest  may  impact  other  areas  of  campaign  finance 
regulation,  including  restrictions  on  "soft  money." 

Lloyd  Hitoshi  Mayer  provides  insight  into  a  less-noticed  aspect  of  the 
Citizens  United  decision — the  Court's  8-1  vote  to  uphold  regulations  requiring 
corporations  to  disclose  their  donors.  Professor  Mayer  identifies  the  policy  and 
constitutional  debate  over  disclosure  as  a  fight  between  those  who  support 
disclosure  because  it  makes  for  a  more  informed  electorate  and  those  who  oppose 
disclosure  because  it  can  chill  speech  by  opening  the  door  to  retaliation  against 
publicly-identified  donors.  Professor  Mayer  points  out,  however,  that  neither  side 


2010]  INTRODUCTION 


has  a  great  deal  of  evidence  to  support  its  claims  of  the  benefits  or  burdens  of 
disclosure.  In  the  absence  of  compelling  evidence,  Professor  Mayer  makes  some 
suggestions  for  improving  the  disclosure  scheme. 

Allison  Hayward  examines  Citizens  United  but  also  focuses  more  broadly  on 
the  recent  increased  scrutiny  the  Supreme  Court  has  given  to  campaign  finance 
regulations  in  contexts  apart  from  union  and  corporate  spending.  In  essence, 
what  Professor  Hayward  focuses  on  might  be  termed  the  "nuts-and-bolts"  aspects 
of  campaign  finance  regulations.  What  she  sees  is  a  need  for  existing  campaign 
finance  regulations  to  accommodate  the  recent  jurisprudential  shift  in  areas 
ranging  from  limits  on  spending  by  candidates,  to  limits  on  contributions  to 
candidates,  to  limits  on  spending  by  foreign  nationals.  In  the  end,  she  calls  on 
Congress  to  re-evaluate  the  campaign  finance  regulations  to  make  them  simpler, 
clearer,  and  less  burdensome. 

The  capstone  of  this  volume,  though,  is  Heather  Gerken's  call  to  arms  for 
election  law  academics.  Tears  for  Fears  once  sang,  "Everybody  wants  to  rule  to 
world."18  Professor  Gerken  has  slightly  more  modest  goals  for  the  field  of 
election  law;  she'd  be  pleased  if  election  law  ruled  constitutional  law.  Put  a  bit 
less  vividly,  Professor  Gerken  thinks  that  some  of  the  dynamic,  structuralist, 
institutional  thinking  in  which  election  law  scholars  engage  should  become  a  key 
part  of  the  dialogue  in  other  areas  of  constitutional  law,  such  as  equal  protection 
and  executive  power.  What  her  article  and,  indeed,  the  other  articles  in  this 
volume  demonstrate  is  that  election  law  has  matured  in  a  way  that  might  have 
been  unimaginable  prior  to  this  decade.  Professor  Gerken  is  most  certainly  onto 
something  when  she  says  that  the  time  has  come  for  election  law  to  export  its 
contributions  to  other  realms. 

Beyond  the  individual  contributors  to  this  volume  mentioned  above,19  there 
are  many  people  who  deserve  praise  for  bringing  this  symposium  volume  to 
fruition.  First,  the  entire  staff  of  the  Indiana  Law  Review — the  "troops  on  the 
ground" — engaged  in  an  amazing  effort  to  make  the  trains  run  on  time  both 
during  the  live  event  held  in  April  2010  and  in  editing  this  volume  in  the  months 
that  followed.  Those  troops,  though,  needed  leadership.  On  this  score,  Ann 
Harris  Smith  and  Daniel  Pulliam  did  a  superb  job  of  seizing  the  reins  for 
coordinating  the  live  event  during  the  2009-2010  academic  year  before  handing 
things  off  to  Sara  Benson  and  Kate  Mercer-Lawson,  who  worked  tirelessly  during 
the  summer  and  fall  of  2010  to  put  the  finishing  touches  on  this  written  volume. 
In  the  end,  this  volume  of  articles  is  in  many  ways  a  tribute  to  their  diligence. 


1 8.  TEARS  FOR  FEARS,  Everybody  Wants  to  Rule  the  World,  on  SONGS  FROM  THE  BIG  CHAIR 
(Phonogram  Records  1985). 

19.  In  addition,  Professors  Adam  Cox,  Gilda  Daniels,  Jim  Greiner,  and  Franita  Tolson 
graciously  participated  in  the  "live"  portion  of  the  symposium. 


Keynote  Address:  What  Election  Law  Has 
to  Say  to  Constitutional  Law 


Heather  K.  Gerken 


Introduction 

This  Address  briefly  reexamines  the  relationship  between  election  law  and 
constitutional  law.  For  those  unfamiliar  with  the  history  of  this  relationship, 
allow  me  to  offer  a  tongue-in-cheek  sketch.  Election  law  is  a  young  field.  It  was 
not  formally  declared  its  own  field  of  study  until  1999,1  though  its  roots  date 
back  earlier.  While  there  were  a  handful  of  scholars  writing  systematically  about 
the  subject  before  1990,2  the  field  came  into  its  own  during  the  early  1990s  as  a 
group  of  dynamic  young  scholars  entered  the  field  and  made  a  name  for 
themselves. 

In  the  early  days,  election  law  looked  a  bit  like  a  faraway  outpost  of 
constitutional  law.  Constitutional  law  dominated  our  collective  imagination,  and 
many  in  the  field  dutifully  translated  the  pristine  mandates  of  equal  protection 
and  the  First  Amendment  into  the  Wild  West  atmosphere  that  we  call  politics. 
Much  was  made  of  the  relationship  between  the  Supreme  Court's  affirmative 
action  discourse  and  its  racial  gerrymandering  decisions,  or  the  Court's  campaign 
finance  decisions  and  the  rest  of  the  First  Amendment. 

Eventually,  election  law  scholars  declared  their  independence  from 
constitutional  law  in  a  bloodless  revolution.  Building  on  the  early  and  prescient 
work  of  Rick  Pildes  and  several  others,3  election  law  scholars — myself 


*  J.  Skelly  Wright  Professor  of  Law,  Yale  Law  School.  What  follows  is  a  lightly  footnoted 
version  of  the  keynote  speech  delivered  at  the  symposium.  I  am  grateful  for  the  comments  I 
received  at  the  symposium  and  from  Sam  Issacharoff,  Rick  Pildes,  and  David  Schleicher.  Thanks 
to  Arpit  Garg  and  Ben  Zimmer  for  excellent  research  assistance. 

1 .  Symposium,  Election  Law  as  Its  Own  Field  of  Study,  32  LOY.  L.  A.  L.  REV.  1 095  ( 1 999); 
see  also  Richard  L.  Hasen,  Election  Law  at  Puberty:  Optimism  and  Words  of  Caution,  32  LOY. 
L.A.  L.  Rev.  1095,  1095  (1999)  ("no  one  can  seriously  question  whether  election  law  is  a  subject 
in  its  own  right"). 

2.  Dan  Lowenstein  was  the  leading  example.  For  accounts  of  Lowenstein's  early 
contributions,  see  Symposium,  The  Past,  the  Present,  and  the  Future  of  Election  Law:  A 
Symposium  Honoring  the  Works  of  Daniel  Hays  Lowenstein  (Jan.  29,  2010), 
http://www.law.ucla.edu/home/Calendar/Detail. aspx?recordid=4398. 

3 .  See,  e.g. ,  C.  Edwin  Baker,  Campaign  Expenditures  and  Free  Speech,  33  Harv.  C.R.-C.L. 
L.  Rev.  1,1-3  (1998);  Richard  Briffault,  Issue  Advocacy:  Redrawing  the  Elections/Politics  Line, 
11  TEX.  L.  Rev.  1751,  1754-55  (1999);  Samuel  Issacharoff,  Polarized  Voting  and  the  Political 
Process:  The  Transformation  of  Voting  Rights  Jurisprudence,  90  MICH.  L.  REV.  1833,  1837 
(1992);  Pamela  S.  Karlan  &  Daryl  J.  Levinson,  Why  Voting  Is  Different,  84  Cal.  L.  Rev.  1201, 
1202-04  (1996);  Richard  H.  Pildes,  Principled  Limitations  on  Racial  and  Partisan  Redistricting, 
106  YaleL.J.  2505, 2506-09  (1997)  [hereinafter  Pildes,  Principled  Limitations];  Frederick  Schauer 
&  Richard  H.  Pildes,  Electoral  Exceptionalism  and  the  First  Amendment,  11  TEX.  L.  REV.  1 803, 
1805-08  (1999);  see  also  sources  cited  infra  note  20  (collecting  sources  from  the  Shaw  literature). 


8  INDIANA  LAW  REVIEW  [Vol.  44:7 


included — insisted  that  there  was  something  special  about  the  regulation  of 
politics  that  required  a  different  type  of  jurisprudence.4  Scholars  insisted  that 
constitutional  mandates  could  not  be  witlessly  applied  across  domains.  As 
Pamela  Karlan  correctly  predicted,  election  law  was  "leaving  constitutional  law' s 
empire."5  Some  of  the  intellectual  work  was  done  during  the  1990s  by  election 
law  scholars  reacting  to  the  Shaw  cases.6  Bush  v.  Gore1  provided  an  additional 
push  in  that  direction  because  the  case  attracted  top  constitutional  law  scholars 
to  the  newly  developed  field.  The  fact  that  the  best  constitutional  law  scholars 
in  the  country  were  suddenly  writing  within  the  field  was  a  signal  of  the  field's 
legitimacy  and  prestige.  But,  in  a  typical  example  of  "boundary  policing,"8 
scholars  who  had  mastered  election  law's  details  sometimes  thought  that 
mainstream  constitutional  law  scholars  were  missing  what  made  election  law 
distinctive. 

Our  formal  Declaration  of  Independence  was  Rick  Pildes's  2004  Harvard 
Foreword.9  Even  as  democratic  politics  have  become  "constitutionalized," 
declared  Pildes,  constitutional  law  simply  lacked  an  appropriate  framework  for 
regulating  politics.10  He  argued  that  "[constitutional  lawyers  are  trained  to  think 
in  terms  of  rights  and  equality"  whereas  "politics  involves,  at  its  core, ...  the 
organization  of  power."1  x  He  thus  insisted  that  even  though  the  Supreme  Court's 
election  law  jurisprudence  was  anchored  in  the  Constitution,  it  should  leave 
behind  "[understandings  of  rights  or  equality  worked  out  in  other  domains  of 
constitutional  law"  because  they  were  simply  a  bad  fit  for  the  regulation  of 
politics.12 


4.  See,  e.g.,  Heather  K.  Gerken,  Election  Law  Exceptionalism?  A  Bird's  Eye  View  of  the 
Symposium,  82  B.U.  L.  Rev.  737  (2002).  Some  scholars  remain  skeptical  of  the  idea,  however. 
See,  e.g.,  Daniel  A.  Farber,  Implementing  Equality,  3  ELECTION  L.J.  371, 381-83  (2004)  (reviewing 
Richard  L.  Hasen,  The  Supreme  Court  and  Election  Law:  Judging  Equality  from  Baker 
V.  CARRTOBUSHV.  Gore  (2003));  Nathaniel  Persily,  The  Search  for  Comprehensive  Descriptions 
and  Prescriptions  in  Election  Law,  35  CONN.  L.  Rev.  1509,  1515-17  (2003). 

5.  Pamela  S.  Karlan,  Constitutional  Law,  The  Political  Process,  and  the  Bondage  of 
Discipline,  32  Loy.  L.A.  L.  Rev.  1 185,  1 187  (1999).  Karlan  was  equally  prescient,  in  my  view, 
when  she  insisted  that  "[i]t  would  be  unfortunate  for  everyone  concerned  if  legal  regulation  of  the 
political  process  were  to  hive  off  completely  from  constitutional  law  and  the  two  bodies  were  to 
evolve  separately  to  the  point  where  there  is  little  possibility  of  continued  cross-fertilization."  Id. 
at  1188. 

6.  See  infra  notes  20-26  and  accompanying  text. 

7.  531  U.S.  98  (2000). 

8.  I  borrow  the  idea  from  Laura  Kalman,  Border  Patrol:  Reflections  on  the  Turn  to  History 
in  Legal  Scholarship,  66  FORDHAM  L.  REV.  87,  87-88  (1997). 

9.  Richard  H.  Pildes,  Foreword:   The  Constitutionalization  of  Democratic  Politics,  118 
Harv.  L.  Rev.  28  (2004)  [hereinafter  Pildes,  Foreword]. 

10.  Id.  at  39.  For  an  empirical  account  of  the  dramatic  increase  in  election  litigation,  see 
Richard  L.  Hasen,  Introduction:  Developments  in  Election  Law,  42  Loy.  L.A.  L.  REV.  565  (2009). 

1 1 .  Pildes,  Foreword,  supra  note  9,  at  40. 

12.  Id. 


20 1 0]  KEYNOTE  ADDRESS 


The  notion  of  election  law's  exceptionalism  has  by  now  become 
conventional  wisdom  among  scholars  in  the  field.  We  understand  ourselves  to 
be  an  independent  intellectual  terrain,  not  a  mere  constitutional  law  outpost.  If 
scholars  are  divided  between  lumpers  and  splitters — those  who  see  connections 
across  subject  areas  and  those  who  think  contextual  differences  matter 
most — then  we  have  written  about  the  relationship  between  election  law  and 
constitutional  law  largely  in  the  cadence  of  the  splitter. 

I  want  to  call  for  a  bit  more  lumping.  That  is  not  because  I  disagree  with  the 
notion  that  mainstream  constitutional  theory  translates  unevenly  into  the  field  of 
politics.  To  the  contrary,  I  firmly  believe  in  election  law's  exceptionalism.  But 
I  think  that  portions  of  constitutional  law  are  exceptional  as  well.  Much  of 
constitutional  law,  after  all,  involves  "the  organization  of  power."13  There  may 
be  more  opportunities  for  intellectual  arbitrage  than  people  have  typically 
imagined. 

Put  more  bombastically,  during  the  next  stage  of  the  field's  development,  I 
think  we  ought  to  have  imperial  aims.14  Election  law  scholars  should  do  more 
than  declare  our  independence  from  constitutional  law;  we  should  colonize  it. 
There  are  lessons  to  be  drawn  from  election  law,  sensibilities  that  permeate  the 
field  that  are  not  as  prevalent  elsewhere,  a  distinctive  perspective  that  might  help 
reframe  conventional  constitutional  law  debates.  Election  law  scholars,  for 
instance,  tend  to  focus  on  groups  and  aggregation  rather  than  on  individuals  and 
rights,  which  are  the  conventional  topics  of  inquiry  for  most  constitutional  law 
scholars.15  Both  constitutional  law  and  election  law  are  concerned  with  the  fate 
of  the  "discrete  and  insular  minorities"  of Carolene  Products'^  Footnote  Four.16 
But  election  law  scholars  devote  a  good  deal  more  attention  than  their 
constitutional  law  counterparts  to  the  democracy-reinforcement  prong  of 
Carolene  Products' 's  famous  footnote.  And  unlike  their  constitutional  law 
counterparts,  election  law  scholars  spend  a  good  deal  of  time  thinking  about  the 
relationship  between  Footnote  Four's  two  prongs — between  democracy 
reinforcement  and  the  fate  of  discrete  and  insular  minorities.  They  have  even 
imagined  that  political  empowerment  plays  as  important  a  role  as  judicially 
enforceable  rights  in  promoting  equality.  Similarly,  election  law  scholars  tend 
to  view  governments  through  the  lens  of  politics.  They  thus  eschew  the  type  of 
formal  accounts  of  state  actors  we  see  in  much  of  constitutional  law.  Instead, 
election  law  scholars  imagine  institutions  as  a  collection  of  political  actors, 
something  that  pushes  them  to  look  beyond  institutional  roles  and  to  treat  a 


13.  Id. 

14.  I  hope  readers  will  forgive  the  territorial  analogy.  I  had  thought  to  begin  with  Rick 
Hasen's  observation  that  election  law  has  two  "very  different  parents,  constitutional  law  and 
political  science."  Hasen,  supra  note  1,  at  1095.  Just  play  out  the  metaphor,  though,  and  you  will 
realize  that  the  Oedipal  implications  are  just  a  bit  too  much  for  a  respectable  law  review. 

15.  Perhaps  this  is  to  our  detriment.  See,  e.g.,  Joseph  Fishkin,  Equal  Citizenship  and  the 
Individual  Right  to  Vote,  86  Ind.  L.J.  (forthcoming  201 1). 

16.  United  States  v.  Carolene  Prods.  Co.,  304  U.S.  144,  152  n.4  (1938). 


10  INDIANA  LAW  REVIEW  [Vol.  44:7 


governing  body  as  a  "they,"  not  an  "it."17 

I  do  not  want  to  make  the  foolish  claim  that  election  law  scholars  have  a 
monopoly  over  the  insights  and  sensibilities  described  below.  But  these  insights 
and  sensibilities  constitute  the  dominant  melody  in  election  law,  while  elsewhere 
they  tend  to  sound  as  a  minor  theme.  For  that  reason,  perhaps  it  is  time  to 
translate  election  law's  insights  into  the  domain  of  constitutional  law.  Here,  I 
will  offer  several  examples  of  what  this  might  look  like  in  practice. 

I.  Election  Law  and  Equal  Protection 

My  first  example  is  equal  protection.  As  with  traditional  constitutional  law, 
the  question  of  racial  equality  has  dominated  much  of  the  debate  within  the  field. 
But  election  law  scholars  have  developed  a  distinctive  set  of  insights  about 
equality  and  identity,  many  of  which  may  be  relevant  to  conventional 
constitutional  law  debates.  Here,  then,  I  will  try  to  give  you  a  sense  of  what  the 
election  law  empire  building  might  look  like  going  forward.18  In  my  view,  the 
key  insight  that  election  law  affords  us  is  that  the  path  to  equality  does  not  move 
straight  from  civil  inclusion  to  full  integration,  but  instead  requires  an 
intermediary  stage:  political  empowerment.19 

A.  Race  and  Politics 

During  the  last  two  decades  of  intense  litigation  over  the  constitutionality  of 
the  Voting  Rights  Act  and  the  districts  it  has  produced,  election  law  scholars 
have  regularly  pointed  out  that  Fourteenth  Amendment  mandates  should  not  be 
mindlessly  applied  to  the  arena  of  politics.20  Many  of  these  arguments  were 
developed  in  response  to  the  Supreme  Court's  Shaw  jurisprudence,  where  the 
Court  struck  down  bizarrely  shaped  majority-minority  districts  for  being  unduly 
race-conscious,  condemning  them  as  "segregate [d]"  and  a  form  of  "political 


17.  See  infra  text  accompanying  notes  54-61.  The  reference,  of  course,  is  to  Kenneth 
Shepsle,  Congress  Is  a  "They,  "  Not  an  "It ":  Legislative  Intent  as  Oxymoron,  1 2  Int'l  Rev.  L.  & 
ECON.  239(1992). 

18.  Empire  building  in  this  area  has  become  an  academic  obsession  of  mine.  See,  e.g., 
Heather  K.  Gerken,  Justice  Kennedy  and  the  Domains  of  Equal  Protection,  121  HARV.  L.  Rev.  104 
(2007)  [hereinafter  Gerken,  Domains  of  Equal  Protection];  Heather  K.  Gerken,  Second-Order 
Diversity,  1 18  HARV.  L.  Rev.  1099  (2005)  [hereinafter  Gerken,  Second-Order  Diversity];  Heather 
K.  Gerken,  The  Foreword:  Federalism  All  the  Way  Down,  123  HARV.  L.  Rev.  (forthcoming  20 10) 
[hereinafter  Gerken,  Federalism  All  the  Way  Down]. 

1 9.  See  Gerken,  Federalism  All  the  Way  Down,  supra  note  1 8. 

20.  See  generally  T.  Alexander  Aleinikoff  &  Samuel  Issacharoff,  Race  and  Redisricting: 
Drawing  Constitutional  Lines  After  Shaw  v.  Reno,  92  MICH.  L.  Rev.  588  (1993);  Samuel 
Issacharoff  &  Thomas  C.  Goldstein,  Identifying  the  Harms  in  Racial  Gerrymandering  Claims,  1 
Mich.  J.  Race  &  L.  47  (1996);  Pamela  S.  Karlan,  All  Over  the  Map:  The  Supreme  Court 's  Voting 
Rights  Trilogy,  1993  Sup.  Ct.  Rev.  245;  Pamela  S.  Karlan,  The  Rights  to  Vote:  Some  Pessimism 
About  Formalism,  71  TEX.  L.  REV.  1705  (1993);  Pildes,  Principled  Limitations,  supra  note  3. 


2010]  KEYNOTE  ADDRESS  11 


apartheid."21 

Scholars  challenged  the  Court's  decision  to  import  conventional  equal 
protection  analysis  into  the  districting  context  by  arguing  that  politics  is  different 
and  thereby  building  the  case  for  election  law's  exceptionalism.  The  most 
interesting  arguments  centered  on  the  ways  in  which  majority-minority  districts 
might  have  dynamically  integrative  effects,  furthering  rather  than  undermining 
the  long-term  goals  of  the  Fourteenth  Amendment.  Without  delving  into  the 
merits  of  the  arguments,  let  me  give  you  three  examples  of  the  kinds  of 
arguments  scholars  have  made  in  their  efforts  to  distinguish  race-conscious 
districting  from  the  other  forms  of  race-conscious  decisionmaking. 

The  first  example  goes  to  the  material  benefits  associated  with  majority- 
minority  districts.  Many  scholars  have  argued  that  having  the  representatives  of 
racial  minorities  at  the  political  table  to  lend  their  "voice"  or  "perspective" 
results  in  more  enlightened  laws.  But  election  scholars  have  drawn  upon  a  more 
muscular  conception  of  the  role  that  minority  representation  plays  in  politics. 

Pamela  Karlan  and  Samuel  Issacharoff,  for  instance,  have  argued  that 
economic  progress  for  African-Americans  has  turned  not  on  the  vindication  of 
civil  rights  (the  conventional  model  in  constitutional  law),  but  on  business  set- 
asides,  affirmative  action,  and  government  employment.22  In  their  view,  those 
programs  came  about  precisely  because  blacks  and  Latinos  were  able  to  elect 
their  candidates  of  choice  in  districts  drawn  in  a  race-conscious  fashion.  "[T]he 
creation  of  a  black  middle  class,"  they  write,  "has  depended  on  the  vigilance  of 
a  black  political  class."23  One  might  even  argue  that  this  is  the  story  of 
integration  for  white  ethnics  as  well,  as  Justice  Souter  argued  in  his  dissent  in 
Bush  v.  Vera,  another  voting  rights  case.24  In  Souter' s  view,  the  Lithuanian  and 
Polish  wards  in  Chicago  and  the  Irish  and  Italian  political  machines  in  Boston 
helped  integrate  ethnic  groups  into  the  system.25  In  his  words,  it  "allowed 
ethnically  identified  voters  and  their  preferred  candidates  to  enter  the  mainstream 
of  American  politics  and  to  attain  a  level  of  political  power  in  American 
democracy,"  something  that  ultimately  "cooled"  ethnicity's  "talismanic  force."26 

Note  the  relationship  between  political  power  and  integration  on  this  view. 
Political  power  did  not  just  facilitate  economic  integration.  Politics  exerted  a 
gravitational  pull  on  outsiders,  bringing  them  into  politics  and  making  them  feel 
part  of  it.  Majority-minority  districts  gave  racial  minorities  (and  before  them, 
white  ethnics)  a  stake  in  the  system.  It  afforded  them  the  status  of  insiders  even 
as  it  recognized  their  distinctive  outsider  identities. 

The  second  argument  is  mostly  mine.27   Building  on  the  work  of  Pamela 


21.  Shaw  v.  Reno,  509  U.S.  630,  647,  658  (1993). 

22.  Samuel  Issacharoff  &  Pamela  S.  Karlan,  Groups,  Politics,  and  the  Equal  Protection 
Clause,  58  U.  Miami  L.  Rev.  35,  49  (2003). 

23.  Id. 

24.  Bush  v.  Vera,  517  U.S.  952,  1054  (1996)  (Souter,  J.,  dissenting). 

25.  Mat  1060. 

26.  Id.  at  1074-75  (citations  omitted). 

27.  See  Gerken,  Second-Order  Diversity,  supra  note  18. 


12  INDIANA  LAW  REVIEW  [Vol.  44:7 


Karlan28  as  well  as  Anne  Phillips's  observation  that  "[pjolitics  is  not  just  about 
self-interest,  but  also  about  self-image,"29 1  have  argued  that  majority-minority 
districts  might  generate  constitutive  and  expressive  benefits  that  further  the 
integrative  ideal — that  power  and  identity  might  be  more  closely  tied  than  we 
typically  assume.  The  grand  insight  of  the  Voting  Rights  Act,  in  my  view,  is  that 
creating  statistically  "integrated"  districts  would  relentlessly  reproduce  in  every 
district  the  same  inequalities  racial  minorities  experience  almost  everywhere  else. 
Majority-minority  districts,  in  contrast,  turn  the  tables,  allowing  the  usual  losers 
to  win  and  the  usual  winners  to  lose.  Where  voting  is  racially  polarized — where 
whites  and  non-whites  consistently  prefer  different  candidates  at  the 
polls — creating  districts  that  mirror  the  underlying  statewide  population  would 
condemn  racial  minorities  to  lose  (or,  at  best,  to  influence)  every  contest. 
Majority-minority  districts  give  racial  minorities  a  chance  to  enjoy  the  same  type 
of  participatory  experience — the  sense  of  efficacy  or  agency  associated  with 
being  in  charge — that  is  usually  reserved  for  members  of  the  majority.  It  is  not 
difficult  to  imagine  why  racial  minorities  would  desire  a  chance  to  be  in  charge 
for  reasons  that  have  nothing  to  do  with  political  outcomes  or  the  distribution  of 
tangible  goods.  If  racial  minorities  have  a  sense  that  members  of  the  majority 
have  been  able  to  elect  a  champion,  someone  fighting  on  their  behalf,  they  might 
relish  the  chance  to  elect  a  champion  of  their  own  for  purely  dignitary  reasons. 

Michael  Kang  suggests  that  majority-minority  districts  may  be  integrative  in 
a  third,  even  more  counterintuitive,  fashion.30  He  argues  that  such  districts 
ultimately  reduce  racial  bloc  voting  because  they  temporarily  pull  race  out  of  the 
political  discussion  and  thereby  help  fracture,  rather  than  reify,  racial 
categories — just  the  opposite  of  most  predictions.31  Kang  points  out  that  where 
voting  is  racially  polarized,  racial  minorities  have  every  incentive  to  vote 
monolithically,  as  that  is  their  only  hope  of  electing  a  candidate  of  choice.  The 
result,  writes  Kang,  is  that  race  becomes  a  "conversation  stopper"  as  "[pjolitics 
.  . .  freeze  along  the  historically  dominant  axis  of  race,  removing  incentives  for 
political  leaders  to  challenge  the  public  with  new  choices  and  understandings 
inconsistent  with  the  entrenched  racial  alignment."32 

Kang  argues  that  the  solution  to  this  problem  is  majority-minority  districts.33 
In  such  districts,  Kang  points  out,  it  is  all  but  a  given  that  the  candidate  of  choice 
for  the  minority  group  will  win  the  general  election.  As  a  result,  minority  voters 


28.  Pamela  S.  Karlan,  Just  Politics?  Five  Not  So  Easy  Pieces  of  the  1995  Term,  34  Hous. 
L.  Rev.  289, 307  ( 1 997)  (targeting  majority-black  districts  but  not  majority-white  districts  suggests 
that  "whites  somehow  are  injured  by  being  placed  in  racially  integrated  settings  in  which  they  do 
not  constitute  the  dominant  group");  Pamela  S.  Karlan,  Our  Separatism?  Voting  Rights  as  an 
American  Nationalities  Policy,  1995  U.  Chi.  LEGAL  F.  83,  94-95  (suggesting  that  Shaw  grew  out 
of  a  fear  of  "the  prospect  of  African- American  control"). 

29.  Anne  Phillips,  The  Politics  of  Presence  79  ( 1 995). 

30.  Michael  S.  Kang,  Race  and  Democratic  Contestation,  117  Yale  L.J.  734  (2008). 

31.  Id.  at  787. 

32.  Id.  at  778. 

33.  Id.  at  778-84. 


20 1 0]  KEYNOTE  ADDRESS  1 3 


can  enjoy  the  luxury  of  division  and  debate  during  the  primary.34  Rather  than 
coalescing  behind  a  single  candidate,  racial  minorities  are  able  to  engage  in  the 
usual  stuff  of  pluralist  politics,  something  that  will  in  the  long  run  break  down 
racial  categories.  Majority-minority  districts,  then,  create  not  just  statistically 
integrated  legislatures,  but  a  genuinely  integrated  polity. 

All  three  of  these  arguments  grew  out  of  the  peculiar  sensibility  of  election 
scholars.35  As  Karlan  has  observed,  the  dominant  story  about  race  told  in 
constitutional  law  circles  depicts  racial  minorities  as  "objects  of  judicial 
solicitude,  rather  than  as  efficacious  political  actors  in  their  own  right."36 
Constitutional  law  scholars  often  tell  precisely  that  story  when  they  are  talking 
about  race  and  elections.  For  instance,  they  fold  majority-minority  districts  into 
whatever  variant  of  that  conventional  story  they  prefer.  Liberals  tend  to  view 
majority-minority  districts  as  a  race-conscious  strategy  for  integrating  the 
legislature,  much  as  they  view  affirmative  action  as  a  strategy  for  integrating 
universities.  Conservatives  generally  see  them  as  yet  another  example  of  what 
they  think  of  as  hand-outs,  akin  to  affirmative  action  or  minority  business  set- 
asides. 

Election  law  scholars,  in  sharp  contrast,  see  majority-minority  districting  as 
a  tool  of  empowerment,  something  that  pushes  society  toward  a  deeper,  more 
robust  form  of  racial  integration.  Election  law  scholars  are  not  imposing  a  vision 
of  race  on  politics;  they  are  imposing  a  vision  of  politics  on  race.  They  see  racial 
minorities  as  they  see  other  groups  in  the  political  system — as  "efficacious 
political  actors"  rather  than  "objects  of  judicial  solicitude" — and  thus  tell  a 
distinctive  story  about  race  and  districting.37  Karlan  and  Issacharoff  s  electoral 
tale  does  exactly  that,  showing  the  ways  that  political  empowerment  allows  racial 
minorities  to  protect  themselves  instead  of  looking  to  the  courts  for  protection. 
Similarly,  the  notion  of  "turning  the  tables"  suggests  that  racial  minorities  need 
not  be  protected  from  the  rough-and-tumble  of  politics  to  succeed;  they  simply 
need  the  same  type  of  voting  power  that  whites  routinely  enjoy. 

While  many  constitutional  law  scholars  argue  that  race  is  a  semi-fluid 
category,38  shaped  by  interactions  between  individuals  and  the  world  around 
them,  they  can  be  exasperatingly  vague  about  which  institutional  mechanisms 
shape  racial  identity  and  how.   For  scholars  of  the  political  process,  thinking 


34.  See  id.  at  798. 

35.  The  next  two  paragraphs  draw  upon  Gerken,  Domains  of  Equal  Protection,  supra  note 
18. 

36.  Pamela  S.  Karlan,  John  Hart  Ely  and  the  Problem  of  Gerrymandering:  The  Lion  in 
Winter,  114  YALE  L.J.  1329,  1332(2005). 

37.  Id. 

38.  See,  e.g.,  K.  Anthony  Appiah  &  Amy  Gutmann,  Color  Conscious:  The  Political 
Morality  of  Race  78-80  (1996);  Richard  T.  Ford,  Beyond  "Difference":  A  Reluctant  Critique 
of  Legal  Identity  Politics,  in  LEFT  Legalism/Left  CRITIQUE  38, 48  (Wendy  Brown  &  Janet  Halley 
eds.,  2002);  see  also  Martha  Minow,  Not  Only  for  Myself:  Identity,  Politics,  and  the  Law 
50-5 1  ( 1 997);  Iris  Marion  Young,  Inclusion  and  Democracy  99  (2000);  Iris  Marion  Young, 
Justice  and  the  Politics  of  Difference  183-91(1 990). 


14  INDIANA  LAW  REVIEW  [Vol.  44:7 


about  the  relationship  between  institutions  and  identity  seems  to  come  more 
naturally.  The  notion  of  "turning  the  tables,"  for  instance,  requires  us  to  think 
of  identity  formation  in  the  context  of  actual  institutional  arrangements — where 
there  are  a  consistent  set  of  winners  and  losers — rather  than  imagining  it  solely 
in  individual  or  group-based  terms.  Accordingly,  Kang's  work  on  districts  and 
racial  identity  draws  upon  substantial  political  science  work  about  the  way 
elections  make  questions  salient  and  frame  issues  for  voters.  Because  election 
scholars  are  familiar  with  the  gravitational  pull  power  exerts  on  outsiders,  the 
role  that  politics  plays  in  driving  a  debate,  and  the  ways  in  which  power  and 
identity  connect  in  the  context  of  politics  and  governance,  they  have  been  able 
to  leverage  those  insights  in  order  to  offer  a  distinctive  view  on  racial  equality. 

Lest  you  think  that  election  scholars  have  invoked  election  law's 
exceptionalism  only  to  muster  arguments  in  favor  of  majority-minority  districts, 
consider  the  work  on  the  other  side  of  this  debate.  For  example,  precisely 
because  districts  are  drawn  to  elect  a  legislature,  election  law  scholars  are 
exquisitely  aware  of  the  trade-offs  involved  in  race-conscious  districting.  Rick 
Pildes  and  Sam  Issacharoff,  for  instance,  have  repeatedly  argued  that  majority- 
minority  districts  can  pack  minority  (and,  often,  Democratic)  voters  and  thereby 
reduce  the  power  racial  minorities  wield  at  the  legislative  level.39  They  argue 
that  because  representatives  of  racial  minorities  have  favored  reducing  the 
percentage  of  black  and  Latino  voters  in  a  district,  as  in  Georgia  v.  Ashcroft,40 
courts  should  not  second-guess  those  political  deals  in  the  name  of  equality  but 
instead  should  let  members  of  those  groups  do  what  other  groups  do  in  a  healthy 
democracy:  negotiate  the  best  political  deal  possible.41 

Note  that  even  while  Pildes  and  Issacharoff  take  a  different  policy  position 
than  others  in  the  field,  their  argument  exhibits  substantial  continuity  with  the 
arguments  above.  It  turns  on  a  vision  of  equality  that  involves  empowering  racial 
minorities  to  protect  themselves  rather  than  turning  to  the  courts  for  assistance.42 

B.  Empire  Building  and  Equality 

So  now  we  turn  to  the  possibility  of  empire  building.  Although  election  law 
scholars  have  written  about  this  concept  in  the  context  of  political  regulation, 
their  insights  are  relevant  to  conventional  constitutional  law  analysis  as  well. 
These  insights  may  not  translate  directly;  context  does  matter,  after  all.  But  at 
the  very  least  this  work  raises  a  set  of  questions  worth  exploring  in  constitutional 


39.  See,  e.g.,  Samuel  Issacharoff,  Is  Section  5  of  the  Voting  Rights  Act  a  Victim  of  Its  Own 
Success?,  104  COLUM.  L.  Rev.  1710,  1716-20  (2004);  Pildes,  Foreword,  supra  note  9,  at  88-99. 

40.  539  U.S.  46 1 ,  469-70  (2003)  ("as  the  black  voting  age  population  in  a  district  increase[s] 
beyond  what  [is]  necessary  [to  elect  officials  of  choice]  .  .  .  you  diminish  the  power  of  African- 
Americans  overall").  Making  the  case  for  the  other  side  is  Pamela  S.  Karlan,  Georgia  v.  Ashcroft 
and  the  Retrogression  of  Retrogression,  3  ELECTION  L.J.  2 1  (2004). 

41 .  See  Issacharoff,  supra  note  39,  at  1728. 

42.  For  further  analysis,  see  Heather  K.  Gerken,  A  Third  Way  for  the  Voting  Rights  Act: 
Section  5  and  the  Opt-In  Approach,  106  COLUM.  L.  REV.  708  (2006). 


20 1 0]  KEYNOTE  ADDRESS  1 5 


law.  After  all,  electoral  districts  are  not  the  only  place  where  racial  minorities 
dominate.  They  will  sometimes  constitute  majorities  on  city  councils,  school 
boards,  juries,  and  the  like.  But  while  majority-dominated  electoral  districts  are 
a  widely  accepted  strategy  for  promoting  integration  in  the  electoral  context,  the 
opposite  is  true  in  most  of  constitutional  law.43  Indeed,  setting  federalism  aside, 
we  do  not  have  an  account  about  the  benefits  of  minority  rule  for  the  institutions 
where  racial  minorities  have  some  chance  of  ruling  (institutions  that  are  smaller 
than  states,  which  are  generally  too  big  for  racial  minorities  to  dominate).  To  the 
contrary,  we  generally  treat  local  institutions  dominated  by  racial  minorities  with 
suspicion,  something  that  matters  a  great  deal  for  how  constitutional  law 
regulates  them.  It  seems  to  me  that  introducing  the  sensibilities  of  election 
scholars  to  the  questions  of  minority  governance  in  constitutional  law  might 
provide  a  usefully  fresh  perspective.  At  the  very  least,  it  might  help  us  develop 
a  more  coherent  account  of  whether  minority-dominated  governance  matters  in 
those  other  areas  and  why. 

Our  skepticism  about  minority-dominated  institutions  outside  of  federalism 
runs  so  deep  that  it  is  inscribed  in  our  very  vocabulary.  We  have  a  firm  sense  of 
what  "integration"  or  "diversity"  looks  like — we  value  institutions  that  look  like 
the  community  from  which  they  are  drawn,  that  "look  like  America,"  to  use  Bill 
Clinton's  favorite  phrase.  We  thus  use  the  term  "diversity"  to  describe  decision- 
making bodies  that  statistically  mirror  the  underlying  population — if  blacks  are 
twenty- five  percent  of  the  population,  they  should  be  twenty-five  percent  of  the 
decision-making  body — and  often  deem  institutions  "integrated"  even  when  they 
contain  only  a  token  number  of  minorities.  As  a  result  of  the  talismanic 
significance  of  Brown,44  we  are  deeply  skeptical  of  institutions  that  depart  from 
this  vision  of  integration.  When  racial  minorities  constitute  statistical  majorities 
in  an  institution,  we  often  call  those  institutions  "segregated"  and  condemn  them 
as  such. 

Consider,  for  instance,  the  Court's  race  jurisprudence.  In  City  of  Richmond 
v.  J.  A.  Croson  Co.45  the  Court  relied  on  the  great  John  Hart  Ely  to  hold  that  a 
minority  set-aside  program  was  more  constitutionally  suspect  because  it  had  been 
enacted  by  a  black-majority  city  council.46  Lest  you  think  only  the 
colorblindness  camp  views  minority-dominated  institutions  with  hostility,  keep 
in  mind  the  terminology  used  by  every  Justice  who  wrote  in  the  recent  school 
desegregation  case,  Parents  Involved  in  Community  Schools  v.  Seattle  School 
District  No.  I41  They  all  condemned  heterogeneous  schools  where  minorities 
dominated  as  "segregated." 


43.  For  further  exploration,  see  Gerken,  Domains  of  Equal  Protection,  supra  note  18; 
Gerken,  Federalism  All  the  Way  Down,  supra  note  18;  Gerken,  Second-Order  Diversity ,  supra  note 
18.  The  next  few  paragraphs  that  follow  are  drawn  from  Gerken,  Federalism  All  the  Way  Down, 
supra  note  18. 

44.  Brown  v.  Bd.  of  Educ.  of  Topeka,  347  U.S.  483  (1954). 

45.  488  U.S.  469(1989). 

46.  Id.  at  495-96. 

47.  551  U.S.  701  (2007). 


1 6  INDIANA  LAW  REVIEW  [Vol.  44:7 


Setting  aside  the  merits  of  these  decisions,  it  is  odd  that  we  so  quickly  affix 
the  dreaded  label  "segregation"  to  institutions  where  racial  minorities  dominate. 
Critical  distinctions  get  lost  when  we  cast  these  issues  as  debates  about 
integration  versus  segregation.  The  most  obvious  is  that  these  institutions  may 
be  different  from  the  racial  enclaves  of  Jim  Crow.  The  less  obvious  is  that 
viewed  through  the  lens  of  election  law,  we  might  imagine  these  institutions  as 
sites  for  empowering  racial  minorities  rather  than  oppressing  them,  for 
integrating  racial  minorities  rather  than  segregating  them. 

You  might  wonder,  of  course,  why  anyone  would  quarrel  with  the  notion  that 
democratic  bodies  should  "look  like  America"  unless,  of  course,  you  happen  to 
be  an  election  law  scholar.  As  members  of  my  academic  tribe  would  be  quick  to 
point  out,  the  oddity  of  this  theory  for  "empowering"  racial  minorities  is  that  it 
relentlessly  reproduces  the  same  inequalities  on  governance  bodies  that  racial 
minorities  experience  nearly  everywhere  else.  It  is  as  if  we  imagine  that  the  path 
of  integration  moves  straight  from  civic  inclusion  to  full  integration.  We  miss 
the  possibility  that  there  is  an  intermediary  stage  along  the  path  to  integration: 
political  empowerment.48 

It  should  be  possible  to  believe  in,  even  revere,  the  work  of  the  Civil  Rights 
Movement  and  still  wonder  about  these  questions.  Civic  inclusion  was  the 
hardest  fight.  But  it  turns  out  that  discrimination  is  a  protean  monster  and  more 
resistant  to  change  than  one  might  think.  It  may  require  new,  even  unexpected 
tools  before  we  reach  genuine  integration.  As  a  voting  rights  scholar,  I  find  it 
hard  not  to  imagine  political  empowerment  being  one  of  those  tools. 

If  we  place  minority-dominated  institutions  in  the  same  category  as  majority- 
minority  districts,  it  is  possible  to  imagine  all  three  of  the  arguments  that  have 
been  used  to  support  majority-minority  districts  being  applied  to  mainstream 
constitutional  law.  We  can  start  with  the  material  benefits  associated  with  racial 
empowerment — the  Karlan  and  Issacharoff  argument  that  success  of  the  black 
middle  class  has  depended  on  the  vigilance  of  the  black  political  class.  Now 
think  about  Croson,  where  the  black-majority  city  council  in  Richmond  created 
a  minority  set-aside  program,  only  to  have  it  struck  down  by  the  Court  for 
violating  the  Fourteenth  Amendment.49  If  we  imagined  cities  as  sites  of  minority 
empowerment,  however,  we  might  recast  the  debate  over  Croson  much  as 
Issacharoff  and  Karlan  recast  the  debate  over  majority-minority  electoral 
districts.  It  would  push  us  toward  a  more  rough-and-tumble  vision  of  equality 
than  the  rights  model,  one  that  recognizes  the  dignity  in  groups  protecting 
themselves  rather  than  looking  to  the  courts  for  solace.  It  would  also  buttress 
Justice  Marshall's  dissent,  which  observed  that  if  anyone  were  familiar  with  the 
existence  of  past  discrimination  and  the  need  for  remedying  its  present  effects, 
it  would  be  the  representatives  of  the  black  community  in  Richmond,  the  former 
capital  of  the  Confederacy.50 


48.  For  a  fuller  exploration  of  the  ideas  in  the  next  few  paragraphs,  see  Gerken,  Federalism 
All  the  Way  Down,  supra  note  18. 

49.  Croson,  488  U.S.  at  477-78,  511. 

50.  Id.  at  528-29  (Marshall,  J.,  dissenting). 


2010]  KEYNOTE  ADDRESS  17 


We  could  just  as  easily  imagine  the  other  arguments  election  law  scholars 
have  made  in  the  districting  context  applying  outside  of  elections.  We  might 
value  governing  bodies  which  turn  the  tables,  allowing  blacks  and  Latinos  to 
enjoy  the  same  sense  of  efficacy — and  deal  with  the  same  types  of  problems — as 
the  usual  members  of  the  majority.  These  institutions  would  give  racial 
minorities  the  opportunity  to  stand  in  the  shoes  of  the  majority.  Racial  minorities 
would  have  a  chance  to  forge  a  consensus  and  fend  off  dissenters,  to  get 
something  done  and  compromise  more  than  they  would  like.  Similarly,  if  Kang's 
insights  apply  elsewhere,  we  might  imagine  it  would  be  useful  to  have 
institutions  where  blacks  and  Latinos  can  spend  their  time  debating  the  usual 
stuff  of  pluralist  politics.51  Or,  consistent  with  the  insights  of  Pildes  and 
Issacharoff,  we  might  think  that  the  influence  and  control  trade-offs  that  can  exist 
in  the  elections  context  exist  for  other  nested  governing  structures  as  well.52  All 
of  these  arguments  may  be  relevant  to  ongoing  debates  about  race  and 
governance  in  the  context  of  mainstream  constitutional  law,  but  they  have  yet  to 
be  fully  explored  by  mainstream  constitutional  law  scholars. 

II.  Intellectual  Arbitrage  on  the  Structural  Side 
of  Constitutional  Law 

Let  me  give  you  a  few  more,  necessarily  stylized,  examples  of  areas  where 
the  sensibilities  of  an  election  law  scholar  might  prove  useful  in  the  context  of 
constitutional  law.53  Here  I  will  turn  from  the  rights-side  of  the  Constitution  to 
the  structural-side  and  discuss  some  of  the  arguments  election  law  scholars  could 
bring  to  bear  on  mainstream  constitutional  debates  surrounding  the  separation  of 
powers  and  federalism.  In  each  instance,  viewing  these  debates  through  the  lens 
of  politics  and  partisan  competition  has  usefully  complicated  the  discussion. 
Here  again,  while  election  law  scholars  certainly  do  not  have  exclusive  access  to 
these  ideas,  they  so  dominate  the  field  that  they  seem  likely  to  frame  our 
understandings  of  the  debates  that  dominate  conventional  constitutional  law 
going  forward.  Indeed,  while  no  author  discussed  below  has  self-consciously 
cast  himself  as  translating  election  law's  insights  into  constitutional  law,  a  fair 
amount  of  empire  building  has  already  occurred  in  these  areas. 

A.  Refraining  Separation  of  Powers  and  Federalism 

When  constitutional  scholars  talk  about  the  horizontal  and  vertical  diffusion 
of  powers,  they  typically  think  in  institutional  terms.  Separation  of  powers 
scholars,  for  instance,  talk  about  the  relationship  between  Congress  and  the 
President.  Federalism  scholars  talk  about  the  relationship  between  the  federal 


5 1 .  For  efforts  to  apply  this  argument  elsewhere,  see  Gerken,  Domains  of  Equal  Protection, 
supra  note  18;  Gerken,  Second-Order  Diversity,  supra  note  18. 

52.  See,  e.g.,  Gerken,  Second-Order  Diversity,  supra  note  18,  at  1124-42  (making  this 
argument). 

53.  Here  again,  I  will  set  aside  the  merits  of  individual  arguments  and  simply  focus  on 
representative  types  of  ideas  that  election  law  scholars  might  bring  to  bear  on  these  debates. 


1 8  INDIANA  LAW  REVIEW  [Vol.  44:7 


government  and  the  states.  Much  of  this  scholarship  displays  a  formalist  bent; 
it  tends  to  treat  these  institutions  as  if  they  were  unitary  actors  with  static 
identities  across  time. 

Election  law  scholars  tend  to  view  these  institutions  differently.  Indeed,  it 
is  rare  to  find  a  formal  conception  of  the  state  anywhere  in  election  law 
scholarship.  That  is  because  election  law  scholars  see  the  problem  of  political 
lock-up  everywhere.  Recognizing  that  political  actors  do  not  shed  party 
identities  when  they  take  office,  election  law  scholars  have  long  viewed 
governance  as  a  site  for  pursuing  partisan  interests,  even  as  a  staging  ground  for 
national  debates.  As  a  result,  election  law  scholars  have  long  thought  that  "the 
State"  is  best  understood  as  "a  constellation  of  currently  existing  political  and 
partisan  forces."54 

Some  of  the  most  interesting  work  in  constitutional  law  has  applied  this 
insight  to  conventional  constitutional  law  debates.  Daryl  Levinson  and  Richard 
Pildes's  article,  Separation  of  Parties,  Not  Powers,55  is  a  fine  example.  The 
authors  argue  that  it  is  a  mistake  to  assume  that  the  separation  of  powers, 
standing  alone,  will  ensure  the  Madisonian  goal  that  ambition  be  made  to  counter 
ambition.56  In  our  age  of  cohesive  national  parties,  they  argue,  Congress  and  the 
Presidency  must  be  controlled  by  different  parties  for  the  separation  of  powers 
doctrine  to  have  real  teeth.  Or  consider  Pildes's  claim — again,  deeply  informed 
by  his  attentiveness  to  political  incentives — that  while  most  separation  of  powers 
scholars  tend  to  worry  about  congressional  overreaching,  the  more  serious  threat 
is  "the  problem  of  political  abdication."57 

Federalism  doctrine  has  been  a  particularly  fertile  target  for  applying  the 
insights  of  election  law  to  mainstream  constitutional  law.  For  instance,  Larry 
Kramer  was  able  to  reconceptualize  the  political  safeguards  of  federalism 
precisely  because  he  was  so  attentive  to  the  role  political  parties  play  in 
integrating  state  and  national  politics.  Recognizing  that  the  states  and  the  federal 
government  are  not  unitary,  but  are  instead  an  agglomeration  of  a  variety  of 
political  forces,  Kramer  devoted  two  pieces  to  showing  that  one  of  the  most 
important  safeguards  of  state  power  is  the  influence  state  and  national  officials 
have  on  one  another  by  virtue  of  their  shared  party  membership.58  Or  consider 
Ernie  Young's  work  analogizing  state  governments  to  the  "shadow  governments" 
found  in  European  systems — sites  for  the  party  out  of  power  at  the  national  level 


54.  Samuel  Issacharoff  &  Richard  H.  Pildes,  Politics  as  Markets:  Partisan  Lockups  of  the 
Democratic  Process,  50  STAN.  L.  REV.  643,  653  (1998). 

55.  Daryl  J.  Levinson  &  Richard  H.  Pildes,  Separation  of  Parties,  Not  Powers,  1 19  Harv. 
L.  REV.  23 12  (2006);  see  also  Daryl  J.  Levinson,  Empire-Building  Government  in  Constitutional 
Law,  118  HARV.  L.  Rev.  915  (2005)  [hereinafter  Levinson,  Empire-Building]. 

56.  See  The  Federalist  No.  5 1 ,  at  320  (James  Madison)  (John  C.  Hamilton  ed.,  1 888). 

57.  Richard  H.  Pildes,  Political  Avoidance,  Constitutional  Theory,  and  the  VRA,  1 17  YALE 
L.J.  Pocket  Part  148, 148  (2007). 

58.  Larry  D.  Kramer,  Putting  the  Politics  Back  into  the  Political  Safeguards  of  Federalism, 
100  COLUM.  L.  REV.  215  (2000);  Larry  Kramer,  Understanding  Federalism,  47  Vand.  L.  Rev. 
1485(1994). 


20 1 0]  KEYNOTE  ADDRESS  1 9 


to  build  its  "farm  team"  and  develop  competing  policy  objectives.59  Finally, 
consider  Daryl  Levinson's  counterintuitive  account  of  the  political  incentives  that 
govern  state-federal  interactions.60  These  and  other  examples  suggest  the  many 
ways  in  which  the  overlay  of  politics  can  complicate  existing  scholarship  on 
government  institutions.61 

B.   The  Constitution  During  Times  of  Emergency 

Here  is  another  example,  one  drawn  from  the  recent  debate  over 
constitutional  law  during  times  of  emergency.  As  I  noted  above,  election  law 
scholars  tend  to  think  of  individual  rights  in  structural  terms,  and  they  devote  as 
much  time  to  the  second  prong  of  the  Carolene  Products  footnote  as  to  the  third. 
Issacharoff  and  Pildes,  who  were  first  to  argue  that  election  law  cases  should  be 
analyzed  through  a  structural  rather  than  a  rights-based  lens,62  have  recently 
applied  that  insight  to  a  long-standing  debate  over  the  enforcement  of 
constitutional  rights  during  times  of  emergency.  Although  the  rights-structure 
debate  has  occurred  in  many  areas  of  constitutional  law,63  constitutional  lawyers 
who  have  focused  on  the  Constitution  during  times  of  trouble  have  typically 
rotated  around  three  positions,  all  of  which  reflected  their  rights-oriented 
sensibilities.  The  first  was  the  civil  libertarian  position — that  the  Constitution 
applies  in  undiluted  form  whether  or  not  there  is  an  emergency.64  The  second  is 
that  the  Constitution  is  flexible  enough  to  accommodate  wartime  activities,  a 


59.  Ernest  A.  Young,  Welcome  to  the  Dark  Side:  Liberals  Rediscover  Federalism  in  the 
Wake  of  the  War  on  Terror,  69  BROOK.  L.  REV.  1277,  1285-87  (2004). 

60.  Levinson,  Empire-Building,  supra  note  55,  at  938-46. 

61 .  See  Akhil  Reed  Amar,  Some  New  World  Lessons  for  the  Old  World,  58  U.  Cffl.  L.  Rev. 
483, 499-504  (1991)  (discussing  the  role  states  play  in  monitoring  federal  officials  and  training  the 
loyal  opposition);  see  also  Lynn  A.  Baker  &  Ernest  A.  Young,  Federalism  and  the  Double 
Standard  of  Judicial  Review,  51  DukeL.J.  75,  137-38  (2001);  Vicki  C.  Jackson,  Federalism  and 
the  Uses  and  Limits  of  Law,  Printz  and  Principle? ,  111  HARV.  L.  Rev.  2180,  2221-23  (1998) 
(noting  the  usefulness  of  "direct[ing]  political  activism  and  organizing"  the  states  precisely  because 
their  borders  do  not  map  exactly  on  to  divisive  political  identities);  Andrzej  Rapaczynski,  From 
Sovereignty  to  Process:  The  Jurisprudence  of  Federalism  After  Garcia,  1985  SUP.  Ct.  Rev.  341, 
386-88  (depicting  local  power  as  a  "counterbalance"  to  political  lock-up  at  the  federal  level);  Judith 
Resnik,  Law 's  Migration:  American  Exceptionalism,  Silent  Dialogues,  and  Federalism 's  Multiple 
Ports  of  Entry,  115  Yale  L.  J.  1 564  (2006)  (recognizing  the  role  the  local  actor  plays  in  promoting 
international  rights  and  transnational  cooperation).  This  work  has  also  helped  scholars  move  in  a 
comparative  direction.  See,  e.g.,  Samuel  Issacharoff,  Fragile  Democracies,  120  HARV.  L.  REV. 
1405  (2007). 

62.  Issacharoff  &  Pildes,  supra  note  54,  at  646-48. 

63.  See,  e.g.,  Akhil  Reed  Amar,  The  Bill  of  Rights:  Creation  and  Reconstruction 
231-83  (1998);  Laurence  H.  Tribe,  Comment,  Saenz  Sans  Prophecy:  Does  the  Privileges  or 
Immunities  Revival  Portend  the  Future — Or  Reveal  the  Structure  of  the  Present?,  1 1 3  HARV.  L. 
Rev.  110(1999). 

64.  See,  e.g.,  Ex  parte  Milligan,  71  U.S.  (4  Wall.)  2  (1866). 


20  INDIANA  LAW  REVIEW  [Vol.  44:7 


position  famously  articulated  by  Justice  Frankfurter.65  On  this  view, 
constitutional  rights  are  judicially  enforced  during  times  of  emergency,  but  they 
are  enforced  in  a  more  flexible  fashion.66  The  third,  offered  by  Justice  Jackson, 
is  the  view  that  although  the  President  would  inevitably  transgress  constitutional 
mandates,  the  Constitution  should  not  bless  those  transgressions  for  fear  that 
such  judicial  decisions  would  wind  up  diluting  constitutional  rights  during 
peacetime.67  Even  if  all  of  these  arguments  were  in  some  sense  about 
constitutional  structure,  they  remained  firmly  anchored  to  a  rights-based  model. 
Pildes  and  Issacharoff  offered  something  quite  different.  Speaking  in  the 
cadence  of  election  scholars,  they  offered  an  institutional  account  of  how  the 
Constitution  should  work  during  times  of  emergency,  one  that  put  meat  on  the 
bones  of  Justice  Jackson's  famous  tripartite  framework  in  the  Steel  Seizure 
case.68  During  times  of  crisis,  they  argued,  courts  should  police  second-order 
questions  of  who  decides,  not  first-order  questions  involving  rights  and 
substance.69  Thus,  for  instance,  Pildes  and  Issacharoff  argued  that  courts  ought 
to  make  the  classic  move  of  John  Hart  Ely70 — whose  ideas  continue  to  dominate 
the  field  of  election  law — and  issue  democracy- forcing  decisions  that  push  the 
democratic  branches  (particularly  Congress)  to  act  rather  than  rely  on  the  Court 
to  enforce  substantive  rights.  The  goal  is  the  same:  to  protect  individual  liberties 
and  place  sensible  limitations  on  executive  power.  But  the  means  they  advocated 
were  strikingly  different;  they  depended  on  an  institutional  solution  rather  than 
a  rights-based  one.  Perhaps  it  is  unsurprising  that  election  scholars,  with  their 
institutional  sensibilities  and  attentiveness  to  the  relationship  between  formal  law 
and  informal  politics,  were  the  ones  to  make  the  most  sustained  argument  in  this 
area. 

C.   The  Mismatch  Problem 

Let  me  offer  one  final  example  of  the  type  of  intellectual  arbitrage  that  might 
occur  if  election  law  scholars  wrote  more  about  constitutional  law.  Election  law 
scholars  are  acutely  aware  of  the  problem  of  the  low-information  voter;  it  is  an 
idea  that  dominates  political  science  and  heavily  influences  our  own  work.  Much 
of  our  work  thus  deals  with  a  variant  of  what  David  Schleicher  calls  the 
"mismatch  problem,"71   which  arises  when  we   ask  voters  to  perform  a 


65.  Korematsu  v.  United  States,  323  U.S.  214,  224-25  (1944)  (Frankfurter,  J.,  concurring). 

66.  Id. 

67.  Id.  at  242-48  (Jackson,  J.,  dissenting). 

68.  Samuel  Issacharoff  &  Richard  H.  Pildes,  Between  Civil  Libertarianism  and  Executive 
Unilateralism:  An  Institutional  Process  Approach  to  Rights  During  Wartime,  5  THEORETICAL 
Inquiries  L.  1  (2004). 

69.  Id.  at  8. 

70.  See  John  Hart  Ely,  Democracy  and  Distrust  ( 1 980). 

71.  David  Schleicher,  What  if  Europe  Held  an  Election  and  No  One  Cared?  2-1 1  (George 
Mason  Univ.  Law  &  Econ.,  Research  Paper  No.  09-68, 2009),  available  at  http://papers.ssrn.com/ 
sol3/papers.cfm?abstract_id=1525015.    It  is  worth  noting  that  Schleicher's  terminology  covers 


20 1 0]  KEYNOTE  ADDRESS  2 1 


constitutional  role  without  the  tools  they  need  to  do  so.  Mismatches  typically 
occur  when  voters  lack  the  right  kind  of  shorthand  to  make  sensible  decisions 
about  ongoing  policy  debates.  I  have  done  some  work  on  how  this  problem 
connects  to  the  bread-and-butter  election  law  questions,72  as  have  scholars  like 
David  Schleicher,73  Michael  Kang,74  Elizabeth  Garrett,75  and  Nathaniel  Persily 
and  his  co-conspirators  Steve  Ansolabehere  and  Joshua  Fougere.76 

In  some  senses,  this  scholarship  is  of  a  piece  with  the  scholarship  I  just 
described.  It  recognizes  that  just  as  we  cannot  understand  "the  State"  or 
"Congress"  without  the  lens  of  politics,  so  too  must  we  think  about  the 
institutional  and  political  structures  that  frame  issues  for  voters  before  we  are 
confident  that  we  know  what  "the  People"  think. 

The  problem  of  the  low-information  voter  pops  up  in  many  places  in 
constitutional  law.77  For  instance,  think  about  the  accountability  argument  that 
the  Supreme  Court  found  so  appealing  in  several  of  its  most  recent  federalism 
decisions,  those  prohibiting  the  federal  government  from  "commandeering"  state 
officials  and  requiring  them  to  carry  out  federal  law.  The  Court  was  worried  that 
commandeering  would  blur  the  lines  of  accountability,  making  it  hard  for  voters 
to  know  which  government  was  responsible  for  which  policy.78  Any  election 
scholar  worth  her  salt  would  have  immediately  questioned  this  kind  of  argument. 


problems  other  than  the  one  I  describe  here. 

72.  See  Heather  K.  Gerken,  The  Democracy  Index:  Why  Our  Election  System  Is 
Failing  and  How  to  Flx  It  (2009);  Heather  K.  Gerken  &  Douglas  B.  Rand,  Creating  Better 
Heuristics  in  the  Presidential  Nominating  Process:  Why  a  Citizens  Assembly  Beats  out  Iowa  and 
New  Hampshire,  125  Pol.  Sci.  Q.  (forthcoming  2010). 

73.  Schleicher,  supra  note  71;  see  also  David  Schleicher,  Why  Is  There  No  Partisan 
Competition  in  City  Council  Elections?:  The  Role  of  Election  Law,  23  J.L.  &  POL.  419  (2007). 

74.  Michael  S.  Kang,  Democratizing  Direct  Democracy:  Restoring  Voter  Competence 
Through  Heuristic  Cues  and  "Disclosure  Plus, "  50  UCLA  L.  REV.  1141  (2003). 

75.  See,  e.g.,  Elizabeth  Garrett,  The  Law  and  Economics  of  "Informed  Voter"  Ballot 
Notations,  85  Va.  L.  Rev.  1533  (1999);  Elizabeth  Garrett,  Voting  with  Cues,  37  U.  Rich.  L.  Rev. 
1011  (2003);  see  also  Elizabeth  Garrett  &  Matthew  D.  McCubbins,  Faith  in  Reason:  Voter 
Competence  and  Local  Bond  Propositions  (USC  Keston  Inst,  for  Pub.  Finance  and  Infrastructure 
Policy,  Research  Paper  No.  07-01, 2007),  available  at  http://www.usc.edu/schools/sppd/keston/pdf7 
20070 1 30-faith-in-reason.pdf. 

76.  Joshua  Fougere  et  al.,  Partisanship,  Public  Opinion,  and  Redisricting,  in  RACE,  REFORM, 
and  Regulation  of  the  Political  Process:  Recurring  Puzzles  in  American  Democracy 
(Charles  et  al.  eds.,  2010). 

77.  Ilya  Somin  is  one  of  the  rare  constitutional  law  scholars  to  write  in  this  vein.  See,  e.g., 
Ilya  Somin,  Knowledge  About  Ignorance:  New  Directions  in  the  Study  of  Political  Information, 
18  CRITICAL  Rev.  255  (2006);  Ilya  Somin,  Political  Ignorance  and  the  Countermajoritarian 
Difficulty:  A  New  Perspective  on  the  Central  Obsession  of  Constitutional  Theory,  89  IowaL.  Rev. 
1 287  (2004);  Ilya  Somin,  Voter  Knowledge  and  Constitutional  Change:  Assessing  the  New  Deal 
Experience,  45  WM.  &  MARY.  L.  REV.  595  (2003). 

78.  Printz  v.  United  States,  521  U.S.  898,  929-30  (1997);  New  York  v.  United  States,  505 
U.S.  144,  168-69(1992). 


22  INDIANA  LAW  REVIEW  [Vol.  44:7 


We  all  know  that  political  accountability  depends  largely  on  voters'  reliance  on 
broadly  defined  partisan  heuristics,  not  fine-grained  policy  judgments.  Thus,  as 
Neil  Siegel  and  others  have  concluded,  while  high-information  voters  should  be 
able  to  figure  out  which  government  is  responsible  for  what,  low-information 
voters  "may  be  largely  beyond  judicial  or  political  help  on  the  accountability 
front."79 

Conclusion 

Nothing  in  this  paper  is  meant  to  imply  that  election  law  scholars  have  a 
monopoly  on  these  insights;  such  a  statement  would  be  flatly  untrue  and 
inconsistent  with  some  of  my  own  examples.  But  election  law  scholars  are 
united  by  a  similar  sensibility  and  attracted  to  a  similar  set  of  questions.  It  may 
be  easier  for  us  to  recognize  certain  kinds  of  recurring  puzzles  about  the 
allocation  of  power,  the  relationship  between  formal  and  informal  structures,  and 
the  connection  between  identity  and  institutions.  Think  about  the  first  example 
with  which  I  began.  As  I  noted  above,  most  constitutional  law  scholars 
instinctively  fold  the  story  of  race  in  the  electoral  domain  into  the  familiar  story 
they  tell  about  race  in  constitutional  law.80  Election  law  scholars  do  the 
opposite — they  instinctively  fold  the  story  of  race  into  their  story  about  the 
electoral  domain.  And  by  focusing  on  the  elections  domain  rather  than  on  race 
per  se,  they  end  up  telling  a  distinctive  tale  about  equal  protection,  one  that  may 
have  resonance  outside  of  that  domain. 

The  examples  I  offer  here  suggest  that  the  same  may  be  true  of  constitutional 
law  more  generally.  So,  returning  to  my  earlier  theme,  let  me  close  by  suggesting 
that  perhaps  it  is  time  for  the  field  of  election  law — which  has  traveled  from  a 
constitutional  law  outpost  to  an  independent  intellectual  terrain — to  contemplate 
a  bit  of  empire  building  of  its  own. 


79.  Neil  S.  Siegel,  Commandeering  and  Its  Alternatives:   A  Federalism  Perspective,  59 
Vand.  L.  Rev.  1629,  1632  (2006). 

80.  See  supra  text  accompanying  notes  38-42. 


The  Founders'  Bush  v.  Gore:  The  1792  Election 
Dispute  and  Its  Continuing  Relevance 


Edward  B.  Foley" 


Introduction:  The  Gap  in  Our  Constitutional  Architecture 

The  2000  presidential  election  re-exposed  a  critical  weakness  in  the 
Constitution's  procedures  for  determining  the  winner  of  the  presidency  when  the 
outcome  is  disputed.  The  Constitution  says  only  that,  with  both  houses  of 
Congress  present,  the  Vice  President  of  the  United  States  (acting  as  president  of 
the  Senate)  shall  open  the  certificates  of  the  Electoral  College  votes  sent  from  the 
states,  "and  the  votes  shall  then  be  counted."1  Using  the  passive  voice,  this  clause 
suggests,  without  specifying  clearly,  that  the  Vice  President  holds  the  authority 
to  resolve  any  dispute  over  counting  the  Electoral  College  votes  from  the  states.2 
Yet  the  Vice  President  may  well  be  one  of  the  competing  candidates  seeking  the 
office  of  the  presidency,  as  Al  Gore  was  in  2000,  and  it  is  an  obvious  conflict  of 
interest  to  give  this  individual  the  authority  to  decide  the  dispute. 

This  indeterminate  constitutional  clause,  however,  offers  no  obvious 
alternative.  Do  the  two  houses  of  Congress  vote  together  as  a  single  combined 
body,  a  procedure  not  contemplated  elsewhere  in  the  Constitution  and,  to  my 
knowledge,  unheard  of  in  the  practices  that  have  unfolded  since  the  Founding? 
Surely,  the  Framers  of  the  Constitution  would  have  spelled  out  this  unusual 
procedure  with  a  bit  more  specificity  if  that  is  what  they  had  in  mind.  Yet 
suppose  the  two  houses  vote  separately,  as  is  the  regular  practice  with  Congress. 
What  if  the  two  houses  are  split  on  the  issue  in  dispute?  The  question  of  which 
candidate  won  the  presidency  is  not  like  a  piece  of  legislation,  which  can  die 
unenacted  if  the  two  houses  do  not  agree.  The  nation  needs  to  inaugurate  its 
newly  elected  President — all  the  more  so  since  the  President's  role  in  protecting 
national  security  has  inevitably  increased  in  the  aftermath  of  World  War  II.3 


*  Director,  Election  Law  @  Moritz,  and  Robert  M.  Duncan/ Jones  Day  Designated  Professor 
of  Law,  Moritz  College  of  Law  at  The  Ohio  State  University.  A  version  of  this  Article  was 
delivered  as  The  Ohio  State  University's  Distinguished  Lecture  on  October  14,  2008,  and  a  video 
of  that  lecture  is  archived  at  http://www.osu.edu/lecture/foley/index.php.  At  the  beginning  of  that 
lecture,  I  thanked  many  individuals  for  their  assistance  on  this  project — too  many  to  repeat  in  this 
footnote.  Here,  I  would  like  to  single  out  those  who  have  been  instrumental  in  helping  this  project 
move  from  lecture  to  published  paper:  Kathy  Hall,  Caryn  Kaufman,  Kyle  Kopko,  Daphne 
Meimaridis,  Kevin  Oles,  Matt  Steinke,  and  Matt  Walsh.  Unfortunately,  readers  will  never  know 
firsthand  how  energetically  and  enthusiastically  these  wonderful  individuals  worked  to  make  this 
Article  be  as  thoroughly  documented,  accurate,  and  informative  as  possible.  To  the  extent  that  my 
own  contributions  fall  short  of  the  standards  they  have  set,  I  plead  that  at  least  I  have  tried  my  best. 

1.  U.S.  Const,  amend.  XII. 

2.  For  an  extensive  discussion  of  the  problems  that  this  passage  in  the  Twelfth  Amendment 
has  caused,  see  Nathan  L.  Colvin  &  Edward  B.  Foley,  The  Twelfth  Amendment:  A  Constitutional 
Ticking  Time  Bomb,  64  U.  MIAMI  L.  REV.  475  (2010). 

3.  For  one  of  many  works  that  discuss  the  rise  of  presidential  power  since  World  War  II, 


24  INDIANA  LAW  REVIEW  [Vol.  44:23 


Thus,  the  dispute  over  which  candidate  won  the  White  House  cannot  remain 
deadlocked,  with  each  house  of  Congress  reaching  opposite  conclusions.  Yet  the 
Constitution  itself  indicates  no  method  of  breaking  the  deadlock  other  than  to 
give  the  decision  to  the  Vice  President,  who  may  be  biased  by  partisanship  even 
if  not  one  of  the  candidates. 

The  nation  was  forced  to  confront  this  acute  constitutional  weakness  once 
before,  in  the  context  of  settling  the  1876  presidential  election  between 
Rutherford  B.  Hayes  and  Samuel  J.  Tilden.4  There,  the  two  houses  were  at  odds, 
with  the  Republican-controlled  Senate  supporting  Hayes  and  the  Democratic- 
dominated  House  backing  Tilden.  In  ruling  for  Hayes,  Congress  broke  the 
logjam  by  creating  a  one-time-only  Electoral  Commission  that  split  8-7  along 
party  lines.  It  took  Congress  another  decade  to  develop  a  more  permanent 
solution,  the  Electoral  Count  Act  of  1 887,  but  even  the  Act's  authors  recognized 
that  it  was  an  inadequate  substitute  for  a  constitutional  amendment  to  eliminate 
ambiguity  over  where  the  ultimate  vote-counting  authority  lies  in  a  disputed 
presidential  election.5  During  that  entire  decade,  however,  Congress  could  never 
muster  the  degree  of  bipartisan  support  necessary  for  a  constitutional  amendment; 
thus,  it  settled  for  what  it  feasibly  could  enact  by  statute.6 

The  Electoral  Count  Act  was  then  left  to  gather  dust  until  2000,  when  a  fresh 
look  at  it  demonstrated  just  how  inadequate  it  was.7  Assuming  it  was  even 
possible  to  comprehend  the  Act's  exasperatingly  convoluted  passages — no  safe 
assumption  at  all — it  appeared  to  provide  that,  in  the  event  of  a  House-Senate 
deadlock,  the  governor  of  the  state  from  which  the  dispute  arose  should  settle  the 
matter.8  Apart  from  the  general  dubiousness  of  this  proposition  (why,  after  all, 
should  the  political  party  lucky  enough  to  hold  the  governorship  of  the  affected 
state  get  to  prevail  simply  by  virtue  of  this  fact?),  the  proposition  was  a 
particularly  awkward  prospect  in  2000  with  Governor  Jeb  Bush  of  Florida  being 
the  brother  of  the  Republican  candidate  for  President  in  the  disputed  election.9 
Additionally,  there  was  no  guarantee  that  a  twenty-first-century  Congress  would 
attempt  to  obey  the  largely  indecipherable  dictates  of  a  nineteenth-century 
compromise  that  was  admittedly  deficient  from  the  outset.  Thus,  notwithstanding 
what  was  written  in  the  Electoral  Count  Act,  it  was  possible  to  predict  that  the 
Senate  and  the  House  would  remain  deadlocked  over  whether  Bush  or  Gore  had 
won  heading  into  Inauguration  Day,  or  beyond,  with  no  mutually  accepted 
tiebreaking  mechanism  available. 


see  Garry  Wills,  Bomb  Power:  The  Modern  Presidency  and  the  National  Security  State 
(2010). 

4.  See  Colvin  &  Foley,  supra  note  2,  at  502-20  (providing  details  of  this  dispute). 

5.  Mat  519-22. 

6.  The  details  of  the  legislative  history  leading  up  to  the  adoption  of  the  Electoral  Count  Act 
are  discussed  in  Nathan  L.  Colvin  &  Edward  B.  Foley,  Lost  Opportunity:  Learning  the  Wrong 
Lesson  from  the  Hayes-Tilden  Dispute,  79  FORDHAM  L.  REV.  (forthcoming  2010). 

7.  Colvin  &  Foley,  supra  note  2,  at  522-25. 

8.  Id.  at  522. 

9.  See  id. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  25 


Into  the  controversy  stepped  the  U.S.  Supreme  Court,  with  the  consequence 
we  now  know  to  be  Bush  v.  Gore.10  Whether  or  not  it  was  a  valiant  and  necessary 
effort  to  head  off  an  even  worse  scenario  if  the  dispute  had  made  it  all  the  way  to 
Congress,11  this  5-4  ruling — in  which  all  nine  Justices  appeared  to  abandon  their 
normal  jurisprudential  positions  in  order  to  reach  a  result  favorable  for  their 
preferred  presidential  candidate,  and  in  which  the  dissenters  accused  the  majority 
of  illegitimacy  that  would  undermine  "the  Nation's  confidence  in  the  judge  as  an 
impartial  guardian  of  the  rule  of  law"12 — is  hardly  the  model  for  how  one  would 
wish  to  handle  a  dispute  of  this  kind.  Would  it  not  be  so  much  better  if  the 
Constitution  gave  us  a  clearly  established  tribunal  tailored  to  the  particularly 
tricky  task  of  adjudicating  a  vote-counting  dispute  in  a  presidential  election?  The 
tribunal  should  be  designed  to  be  evenly  balanced  and  fair  to  both  sides  in  order 
to  maximize  the  chance  that  the  losing  side  perceives  the  outcome  as  legitimate 
even  if  incorrect  from  its  viewpoint.  Were  this  constitutionally  specified  tribunal 
to  exist,  the  operation  of  democracy  would  seem  so  much  more  successful  and 
orderly  than  it  would  if  the  U.S.  Supreme  Court  instead  asserted  a  jurisdiction 
many  doubt  it  has — and  then  exercised  its  self-asserted  jurisdiction  in  a  way  that 
appeared  to  reflect  the  partisan  bias  of  its  majority. 

Now,  a  decade  after  Bush  v.  Gore,  the  nation  is  no  closer  to  getting  this 
needed  constitutional  amendment  than  it  was  a  decade  after  the  Hayes-Tilden 
debacle.  Whether  we  are  ever  able  to  learn  from  these  experiences  remains  to  be 
seen.  Meanwhile,  however,  we  can  ask  why  the  Constitution  did  not  provide  us 
with  an  appropriate  tribunal  in  the  first  place.  Perhaps  if  we  better  understand  the 
causes  of  the  defect,  we  will  become  better  able  to  effectuate  a  remedy. 

Some  of  the  explanation  for  the  constitutional  deficiency  will  be  familiar.  It 
is  well-known,  for  example,  that  the  Framers  did  not  anticipate  how  party  politics 
would  affect  presidential  elections.13  After  the  Electoral  College  tie  in  1800 
between  running  mates  Thomas  Jefferson  and  Aaron  Burr,  the  Twelfth 
Amendment  was  necessary  to  separate  Electoral  College  voting  for  President  and 
Vice  President.14  But  to  understand  why  the  Twelfth  Amendment  did  not  create 
a  mechanism  for  resolving  the  kinds  of  vote-counting  disputes  that  emerged  in 
1876  and  2000,  it  is  necessary  to  dig  deeper.  An  additional  part  of  the 
explanation  lies  in  the  federalist  structure  of  the  Constitution  and  the  presidency 
it  established.  The  Electoral  College  in  each  state  is  an  institution  of  state 
government,  and  it  is  understandable  if  the  Framers  (to  the  extent  they  thought 
about  it  at  all)  assumed  that  any  disputes  over  ballots  cast  for  a  state's  presidential 


10.  531  U.S.  98  (2000). 

11.  See  generally  RICHARD  A.  POSNER,  BREAKING  THE  DEADLOCK:  THE  2000  ELECTION,  THE 

Constitution,  and  the  Courts  (2001). 

12.  Bush,  531  U.S.  at  129  (Stevens,  J.,  dissenting). 

13.  Bruce  Ackerman,  The  Failure  of  the  Founding  Fathers  5-6  (2005);  Richard 
hofstadter,  the  idea  of  a  party  system  53  (1969);  bernard  a.  weisberger,  america 
Afire  14  (2001). 

14.  Tadahisa  Kuroda,  The  Origins  of  the  Twelfth  Amendment:  The  Electoral 
College  in  the  Early  Republic  1787-1 804  ( 1 994). 


26  INDIANA  LAW  REVIEW  [Vol.  44:23 


electors  would  be  handled  within  the  state's  own  governmental  apparatus. 

Yet  federalism  did  not  stop  the  dispute  over  Florida's  presidential  electoral 
ballots  from  reaching  national  institutions  in  either  1876  or  2000.  The  Framers, 
too,  were  lawyers  (or  at  least  many  of  them  were),  and  they  were  smart  enough 
to  know  that  a  litigant  dissatisfied  with  one  tribunal's  answer  would  consider 
whether  to  pursue  the  same  matter  in  a  more  friendly  forum.  If  they  had  attended 
to  the  possibility  of  fighting  over  ballots  cast  for  a  state's  presidential  electors, 
they  could  have  foreseen  that  one  side  would  attempt  to  take  the  fight  to  Congress 
if  that  side  was  unhappy  with  how  state  government  had  handled  it. 

Federalism,  therefore,  is  not  a  full  answer  to  the  question.  The  truth,  instead, 
is  that  the  Founders  were  not  experienced  enough  with  disputed  elections  even 
at  the  state  level.  Their  inexperience  in  this  respect  prevented  them  from 
anticipating  how  to  handle  a  dispute  over  ballots  cast  for  the  office  of  presidential 
elector.  To  be  sure,  the  American  colonists  had  some  experience  with  disputes 
over  elections  for  seats  in  colonial  legislatures.15  But  disputes  over  legislative 
elections  were  relatively  easy  to  handle;  the  colonists  inherited  from  England  the 
doctrine  that  a  legislative  chamber  shall  judge  the  qualifications  of  its  members.16 
An  elected  executive,  however,  was  another  matter,  whether  the  executive  was 
the  state's  own  governor  or  the  nation's  President.  The  Founders  could  not  look 
to  their  colonial  history  for  experience  on  how  to  handle  a  dispute  over  any  kind 
of  election  for  a  chief  executive. 

It  would  take  more  space  than  this  Article  to  explain  fully  how  the  Founding 
Generation  responded  to  the  problem  of  disputed  chief  executive  elections  once 
they  confronted  them.  In  the  fifty  years  between  the  Declaration  of  Independence 
and  rise  of  Jacksonian  democracy  (which  essentially  coincided  with  the  passing 
of  the  Founding  Generation),  there  are  several  significant  disputes  to  assess. 
Massachusetts,  Pennsylvania,  and  Delaware  all  had  disputed  elections  that  shed 
some  light  on  why  the  Founders  left  the  apparatus  of  electoral  democracy 
incomplete  in  this  crucial  regard.17 

Still,  no  episode  in  this  early  period  is  nearly  as  significant  as  New  York's 
disputed  gubernatorial  election  of  1792.  This  episode  directly  involved  some  of 
the  Founders  most  instrumental  to  the  adoption  of  the  U.S.  Constitution, 
including  John  Jay  and  Alexander  Hamilton  (two  of  the  three  co-authors  of  the 
Federalist  Papers).  This  dispute  also  received  national  attention  at  the  time, 
including  commentary  from  Thomas  Jefferson  and  James  Madison.18  Thus,  as  a 
window  into  the  thinking  of  the  Founders  on  what  to  do  when  confronted  with  a 
major  vote-counting  dispute,  this  particular  election  is  unparalleled.  If  we  can 
understand  how  and  why  the  Founders  were  surprised  and  perturbed  that  their 


15.  See,  e.g.,  Mary  Patterson  Clarke,  Parliamentary  Privilege  in  the  American 
Colonies  135-37  (1943). 

1 6.  See  generally  Joshua  Aaron  Chafetz,  Democracy's  Privileged  Few:  Legislative 
Privilege  and  Democratic  Norms  in  the  British  and  American  Constitutions  (2007). 

17.  These  other  disputed  elections  will  be  discussed  in  the  book  that  my  Moritz  colleague 
Steven  Huefher  and  I  are  writing  on  the  full  history  of  disputed  elections  in  the  United  States. 

18.  See  infra  Part  III.D. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  27 


own  constitutional  handiwork  failed  them  at  this  crucial  moment,  we  will  be  in 
a  better  position  to  understand  why  the  Founders  did  not  provide  for  the  kind  of 
tribunal  needed  in  1876  or  2000. 

In  short,  the  Founders  themselves  were  sent  reeling  by  their  own  unexpected 
version  of  Bush  v.  Gore.  Their  own  inability  to  ready  themselves  for  a  dispute 
of  this  kind  helps  explain  why  the  nation  was  unprepared  in  2000  when  the  actual 
Bush  v.  Gore  occurred.  Therefore,  let  us  journey  back  to  see  what  happened 
when  the  Founders  faced  this  same  kind  of  dispute.  Let  us  do  so  in  the  hope  that, 
by  understanding  the  causes  and  consequences  of  their  mistakes,  we  need  not 
repeat  them  when  the  next  major  disputed  election  arises. 

I.  Setting  the  Stage 

The  New  York  gubernatorial  election  of  1792  was  one  of  the  first  involving 
the  two-party  political  competition  that  emerged  in  the  aftermath  of  the  1787 
Constitutional  Convention,  despite  the  Framers'  desires  to  avoid  that 
development.19  Madison  famously  had  discussed  the  "mischiefs  of  faction"  in  the 
Federalist  Papers20 — and  how  to  avoid  a  tyranny  of  "a  majority]  party"  through 
the  constitutional  separation  of  powers.21  But  by  1792  Madison  himself  had 
come  to  embrace  the  idea  that  he  was  a  member  of  one  political  party,  the  so- 
called  Democratic-Republicans,  set  in  opposition  to  another.22  The  name  of  that 
other  party,  the  Federalists,  ironically  indicated  Madison's  rift  with  his  Federalist 
Papers  co-authors,  Alexander  Hamilton  and  John  Jay. 

Madison's  recognition  of  two-party  competition  as  emergent  by  1 792  was  not 
the  same  as  acceptance  of  two-party  competition  as  a  permanent  feature  of  a 
healthy  democracy.  On  the  contrary,  Madison  believed  that  his  Democratic- 
Republicans  were  the  true  guardians  of  the  liberty  won  in  the  Revolution  and 
protected  by  the  Constitution.23  Conversely,  from  his  perspective,  the  other  party 
(the  Federalists)  had  betrayed  the  Revolution  and  the  Constitution.  Thus,  as  he 
saw  it,  the  task  of  his  Democratic-Republicans  was  not  to  trade  positions  with  the 
Federalists  as  the  "legitimate  opposition"24  during  the  period  of  electoral 
competition  when  the  other  party  inevitably  was  in  power.  Rather,  his  side's  task 
was  to  permanently  destroy  the  Federalists  as  enemies  of  the  Constitution  and 
return  the  Republic  to  the  original  situation  in  which  no  two-party  competition 
existed.25 

The  Federalists  saw  their  rivals,  the  Democratic-Republicans,  in  much  the 
same  way.  The  Alien  and  Sedition  Acts,  which  came  within  the  first  few  years 


19.  See  generally  HOFTSTADTER,  supra  note  13  (on  the  Founders'  antipathy  to  party). 

20.  The  Federalist  No.  10  (James  Madison). 

2 1 .  The  Federalist  No.  5 1  (James  Madison). 

22.  James  Madison,  Parties,  in  4  Letters  and  Other  Writings  of  James  Madison  469 
(R.  Worthington  ed.,  1 884);  see  generally  ACKERMAN,  supra  note  1 3 ;  HOFSTADTER,  supra  note  1 3 . 

23.  Hofstadter,  supra  note  13,  at  85. 

24.  Mat 212. 

25.  Id.  at  84. 


28  INDIANA  LAW  REVIEW  [Vol.  44:23 


of  this  new  two-party  rivalry,  prove  this  point.  The  political  opponents  of  the 
Federalists  were,  in  their  eyes,  seditious  enemies  of  the  Republic  and  its  new 
Constitution.26 

This  early  attitude  towards  the  emergence  of  two-party  competition  may  help 
to  explain  why  the  actors  in  the  1792  New  York  drama  behaved  as  they  did. 
They  were  not  ready  for  the  intense  political  animosity  that  developed  between 
the  two  sides,  and  when  the  animosity  surfaced,  there  was  no  desire  on  either  side 
to  adopt  institutional  structures  built  on  the  premise  that  two-party  competition 
would  remain  an  ongoing  feature  of  elections  in  their  new  constitutional 
democracy.  Instead,  both  sides  wanted  to  win  elections,  control  the  government, 
and  perpetuate  constitutional  institutions  that  would  be  consistent  with  their  idea 
of  politics  without  party  competition. 

In  New  York's  gubernatorial  election  of  1792,  the  incumbent,  George 
Clinton,  was  the  candidate  of  the  newly  emerging  Democratic-Republican  party.27 
His  Federalist  opponent  was  the  illustrious  John  Jay,  who  was  then  serving  as  the 
first  Chief  Justice  of  the  United  States.  Jay's  willingness  to  leave  that  position 
to  become  New  York's  governor  signals  the  relative  importance  of  the  two 
offices  at  the  time — and  also  indicates  that  a  fight  over  who  won  this 
governorship  was  comparable  to  the  Founding  Generation  as  a  potential  fight 
over  the  winner  of  a  presidential  election.28  Winning  the  New  York 
governorship,  in  other  words,  was  a  major  prize  (it  was  one  of  the  largest  and 
most  economically  important  of  the  thirteen  original  states,  and  back  then,  of 
course,  the  states  had  much  more  power  than  the  federal  government). 
Accordingly,  the  politicians  fought  over  it  with  every  bit  as  much  intensity  as 
their  successors  would  over  200  years  later  in  Bush  v.  Gore. 

The  dispute  focused  on  the  ballots  cast  in  Otsego  County,  where 
Cooperstown  (the  home  of  the  National  Baseball  Hall  of  Fame)  is  located.29  If 
Otsego's  ballots  were  counted,  Jay  would  win  by  roughly  200  votes.30  But  if  not, 
then  Clinton  would  prevail  by  about  100  votes.31  The  specific  problem  involved 


26.  Id.  at  106-07. 

27.  The  main  secondary  texts  on  which  I  have  relied  are  Jabez  Delano  Hammond,  The 
History  of  Political  Parties  in  the  State  of  New  York  (Phinney  4th  ed.  1850)  (1844);  Alan 
Taylor,  William  Cooper's  Town  (1995);  Alfred  F.  Young,  The  Democratic  Republicans 
of  New  York:  The  Origins  ( 1 967);  Carol  Ruth  Berkin,  The  Disputed  1 792  Gubernatorial  Election 
in  New  York  (1966)  (unpublished  M.A.  thesis,  Columbia  University)  (on  file  with  Columbia 
University  Archives). 

28.  See  Walter  Stahr,  John  Jay:  Founding  Father  283  (2005). 

29.  See  John  S.  Jenkins,  History  of  Political  Parties  pn  the  State  of  New- York  44 
(1846). 

30.  Young,  supra  note  27,  at  308.  No  one  could  know  for  sure  what  Jay's  exact  total  would 
be,  since  the  ballots  had  not  been  counted  and  would  be  destroyed  without  a  count  of  them  ever 
occurring.  See  infra  text  accompanying  notes  53, 1 52.  But  given  voting  patterns  in  Otsego  County 
at  the  time,  both  contemporary  observers  and  subsequent  historians  have  estimated  with 
considerable  confidence  what  the  magnitude  of  Jay's  victory  would  have  been. 

31.  Id. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  29 


the  delivery  of  the  ballots  from  Otsego  County  to  the  secretary  of  state.  New 
York's  election  law  required  the  sheriff  of  each  county  to  be  the  official 
responsible  for  this  delivery. 

New  York's  legislature  had  enacted  a  statute  for  regulating  elections  in  1787, 
the  year  of  the  federal  Constitution's  adoption.  This  statute  directed  that  after  the 
polls  had  closed  in  each  locality,  the  local  election  inspectors — what  we  would 
call  poll  workers  or  precinct  officials — would  "immediately"  enclose  and  bind 
with  tape  the  containers  holding  the  ballots.32  After  affixing  their  seal  to  the 
containers,  the  inspectors  were  required  to  appoint  one  of  themselves  to  deliver 
"without  delay"  the  sealed  containers  to  the  county  sheriff.33  The  statute,  in  turn, 
required  the  sheriff  to  collect  all  these  containers  and,  without  opening  any  of 
them,  put  them  all  together  in  one  box  and  to  deliver  that  box,  closed  and  affixed 
with  the  sheriffs  seal,  "into  the  office  of  the  Secretary  of  this  State."34 

The  problem  with  the  Otsego  ballots  is  that  the  outgoing  sheriffs  term  ended 
on  February  18,  1792.35  In  fact,  he  resigned  even  earlier,  on  January  13.36  His 
replacement,  Benjamin  Gilbert,  was  named  on  March  30.37  But  Gilbert  did  not 
receive  his  commission  until  May  1 1 .  Thus,  as  was  later  determined  by  the 
official  canvassing  committee  itself,  Gilbert  was  not  "qualified  into  the  office  of 
sheriff  until  then.38 

On  May  3,  outgoing  sheriff  Richard  Smith,  acting  as  if  he  still  possessed  the 
powers  of  that  office,  had  deputized  another  person  to  deliver  the  ballots  on  his 
behalf  to  the  secretary  of  state.39  But  a  whole  month  earlier,  on  April  3,  Smith 
had  been  elected  supervisor  of  Otsego  Township,  and  under  New  York  law  a 
sheriff  could  hold  no  other  office.  Apparently,  Smith  was  attempting  to  perform 
the  functions  of  both  offices  at  the  same  time  when  the  election  took  place.  In 
this  time  period,  voting  occurred  over  four  days — from  April  24  to  April  28.  On 
May  1,  in  his  capacity  as  town  supervisor,  Smith  ruled  on  challenges  to  the 
eligibility  of  some  voters.  But  then  Smith  continued  to  perform  the  role  of  sheriff 
for  the  purpose  of  delivering  the  ballots  to  the  secretary  of  state.  As  one  historian 
has  vividly  put  it,  "in  the  most  absurd  touch,  at  the  end  of  the  polling  Smith, 
acting  as  supervisor,  sealed  the  Otsego  Township  ballot  box  for  transfer  to  the 
county  sheriff;  becoming  the  sheriff,  he  received  that  ballot  box  from  himself."40 

Because  of  the  legal  defects  with  Smith's  status  as  sheriff,  Clinton  supporters 
argued  that  the  ballots  from  Otsego  County  had  not  been  delivered  to  the 


32.  Act  of  Feb.  13,  1787,  1787  N.Y.  Laws  32. 

33.  Id. 

34.  Mat  33. 

35.  Taylor,  supra  note  27,  at  178.  See  infra  Appendix  for  a  timeline  of  the  1792  election 
dispute. 

36.  Id. 

37.  Id. 

38.  Matthew  L.  Davis,  Memoirs  of  Aaron  Burr:  With  Miscellaneous  Selections 
from  His  Correspondence  335  (1836). 

39.  Taylor,  supra  note  27,  at  178. 

40.  Id. 


30  INDIANA  LAW  REVIEW  [Vol.  44:23 


secretary  of  state  in  accordance  with  the  requirements  of  the  statute  and  thus 
should  not  be  counted.  They  also  complained  that  the  ballots  from  one  town 
within  Otsego  County,  Cherry  Valley,  could  not  be  counted  because  there  was  a 
dispute  over  which  of  two  sets  of  returns  from  that  town  were  the  correct 
returns.41  But  this  issue  was  something  of  a  sideshow,  as  Jay's  supporters  were 
prepared  to  concede  that  those  specific  ballots  should  be  discarded,  but  not  the 
rest  from  Otsego.42  There  was  no  challenge  to  all  of  the  other  Otsego  ballots  for 
lack  of  the  required  seals.43  The  only  problem  was  that  the  sheriffs  seal  on  the 
whole  box  from  the  county  was  Smith's.  Thus,  the  fight  reverted  to  the  main 
issue:  was  Smith  entitled  to  act  as  the  sheriff  for  purposes  of  delivering  the 
ballots  to  the  secretary  of  state — and,  if  not,  must  all  of  the  Otsego  ballots  be 
discarded  for  that  reason  alone?44 

As  the  controversy  unfolded,  the  Clintonians  suggested — but  never  proved 
or  even  offered  any  direct  evidence — that  Smith  might  have  tampered  with  the 
ballots  while  they  were  in  his  possession.45  They  certainly  showed  beyond  a 
shadow  of  a  doubt  that  Smith  was  a  Federalist  sympathetic  to  Jay's  candidacy  and 
thus  had  a  motive  (as  well  as  an  opportunity)  to  commit  some  ballot  tampering.46 
But  the  Clintonians  did  not  allege  that  Smith's  partisan  conflict  of  interest  was 
itself  a  violation  of  law  or  even  a  factor  relating  to  whether  Smith  had 
contravened  the  relevant  electoral  statute.47  Rather,  the  Clintonians  claimed 
simply  that  Smith  was  no  longer  Otsego's  legal  sheriff,  and  because  of  that 
technical  defect  alone,  all  of  the  county's  ballots  must  be  rejected  as  null  and 
void.48 

Under  New  York's  election  statute,  the  decision  whether  to  count  the 
disputed  ballots  was  in  the  hands  of  a  joint  canvassing  committee:  six  senators 
and  six  representatives  from  the  state's  legislature,  with  each  group  appointed  by 
its  own  chamber.49  The  statute  required  this  joint  canvassing  committee  to  meet 
at  the  office  of  the  secretary  of  state  to  open  the  sealed  boxes  delivered  from  the 
county  sheriffs  and  then  canvass  the  votes  contained  within  them.50   The  only 


41.  Mat  178-80. 

42.  See  id.  at  177-80.  This  account  explains  that  there  were  in  fact  two  competing  sets  of 
returns  from  the  town  of  Cherry  Valley.  One  had  been  properly  sealed — the  one  that  Smith 
believed  to  be  the  valid  one.  But  he  included  the  other  set  of  returns,  not  sealed  in  the  container 
from  that  town,  so  that  the  canvassers  could  make  a  final  decision  on  the  matter.  Id. 

43.  See  Davis,  supra  note  38,  at  335-38  (explaining  that  the  canvassing  committee  described 
the  Otsego  ballots  as  "enclosed  in  a  sufficient  box"  and  did  not  dispute  the  right  of  a  valid  sheriff 
to  appoint  a  deputy  to  deliver  that  box  to  the  committee  (emphasis  added)). 

44.  Id. 

45.  See  generally  TAYLOR,  supra  note  27,  at  1 79  (detailing  the  numerous  opportunities  Smith 
and  other  Federalists  had  to  tamper  with  the  ballot  box). 

46.  Id.  at  179-80. 

47.  Id.  at  180. 

48.  Id. 

49.  Act  of  Feb.  13,  1787,  1787  N.Y.  Laws  33. 

50.  Id. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  31 


explicit  provision  in  the  statute  for  not  counting  ballots  was  "if  the  number  of 
ballots  in  any  inclosure  shall  exceed  the  number  of  Electors  contained  on  the  poll 
lists  in  the  same  inclosure,"  in  which  case  the  committee  "shall  proceed  to  draw 
out  and  destroy  unopened  so  many  of  the  said  ballots  as  shall  amount  to  the 
excess,  and  shall  proceed  to  canvass  and  estimate  the  residue."51  But  the  statute 
also  explicitly  provided  that  "all  questions  which  shall  arise  upon  such  canvass 
and  estimate,  or  upon  any  of  the  proceedings  therein,  shall  be  determined 
according  to  the  opinion  of  the  major  part  of  the  [committee]  .  .  .  and  their 
judgment  and  determination  shall  in  all  cases,  be  binding  and  conclusive."52  The 
statute  further  required  the  committee,  after  deciding  which  candidate  had  won, 
"immediately"  to  "destroy"  the  "poll-books"  and  all  other  voting  materials 
relating  to  the  counting  and  canvassing  of  ballots.53  Based  on  this  clear-cut 
language,  both  sides  to  the  controversy  believed  that  the  joint  canvassing 
committee's  decision  would  be  final  and  irreversible  in  any  other  legal 
proceeding  under  the  laws  and  constitution  of  New  York.54 


51.  Id. 

52.  Id.  at  34. 

53.  Id. 

54.  In  all  of  the  historical  research  conducted  for  this  project,  there  has  emerged  only  one 
tantalizing  reference  that  the  Federalist  attorneys  considered  going  to  court  to  overturn  the 
canvassing  committee's  certification  of  the  election's  outcome.  This  reference  comes  in  a  single 
sentence  of  a  letter  of  Josiah  Ogden  Hoffman,  who  at  the  time  was  a  member  of  New  York's 
legislature  and  who  later  became  the  state's  attorney  general.  The  letter  to  Peter  Van  Schaack, 
dated  June  26,  1792,  is  held  at  the  New  York  Historical  Society,  and  a  copy  is  on  file  with  the 
author.  It  is  also  mentioned  in  a  biography  of  Rufus  King.  See  Robert  Ernst,  Rufus  King: 
American  Federalist  177  (1968)  ("One  [Federalist]  suggested  confidentially  that,  if  a  new 
election  were  not  feasible,  the  legislature  might  order  a  quo  warranto,  which  would  leave  the 
legality  of  Clinton's  election  in  the  hands  of  the  judiciary.").  The  relevant  passage  of  the  letter 
reads,  "If  the  legislature  cannot  order  a  new  election[,  i]s  not  in  their  power  to  order  a  quo  warranto 
&  thus  leave  the  decision  to  our  judges[?]" 

Quo  warranto  is  an  ancient  writ  used  to  try  the  legitimacy  of  an  officeholder's  title  to  an  office. 
The  most  important  early  use  of  quo  warranto  in  the  United  States  to  challenge  an  incumbent 
governor's  reelection  based  on  wrongdoing  in  the  counting  of  ballots  occurred  in  Wisconsin's 
gubernatorial  election  of  1855.  See  Attorney  Gen.  exrel.  Bashford  v.  Barstow,  4  Wis.  567  (1855). 
This  Wisconsin  Supreme  Court  decision,  which  ordered  the  incumbent  governor  to  vacate  his  office 
because  he  was  not  the  rightful  winner  of  the  election,  is  considered  the  Marbury  v.  Madison  of 
Wisconsin  law.  Joseph  A.  Ranney,  Trusting  Nothing  to  Providence:  A  History  of 
Wisconsin's  Legal  System  79-80  (1999).  In  truth,  however,  it  is  a  much  more  momentous 
decision  than  Marbury  itself — which,  after  all,  refused  to  issue  an  order  to  the  federal  executive  in 
that  case  and  instead  claimed  that  the  Court  lacked  the  jurisdiction  to  do  so.  For  a  discussion  of 
Bashford  v.  Barstow' s  celebrated  status  in  Wisconsin's  history,  see  chapter  9  of  John  Bradley 
Winslow,  The  Story  of  a  Great  Court  (1912). 

In  light  of  Wisconsin's  subsequent  success  with  the  use  of  quo  warranto  for  its  1855 
gubernatorial  election,  it  is  thus  intriguing  to  speculate  what  might  have  happened  if  the  Federalists 
had  similarly  attempted  to  invoke  this  ancient  writ  in  New  York's  disputed  gubernatorial  election 


32  INDIANA  LAW  REVIEW  [Vol.  44:23 


Thus,  it  mattered  immensely  who  constituted  this  joint  canvassing  committee. 
The  members  had  been  chosen  in  early  April  in  advance  of  the  election.  The 
Democratic-Republicans  controlled  both  houses  of  the  state  legislature  at  the 
time;  therefore,  they  had  the  power  to  appoint  a  majority  of  canvassers  from  their 
party.55  They  exercised  this  power  in  a  rather  unusual  way.  In  the  state  senate, 
a  bipartisan  compromise  had  resulted  in  the  appointment  of  three  canvassers  from 
each  party.56  In  the  assembly,  the  Federalists  thought  they  had  secured  a  similar 
deal,  but  they  got  outmaneuvered.  As  a  result,  all  six  of  the  assembly's 
canvassers  were  Democratic-Republicans,  for  an  overall  majority  of  nine  to 
three.57 

Being  savvy  politicians,  the  Federalists  saw  the  composition  of  the 
canvassing  committee  as  a  bad  sign.  Robert  Troup,  a  Federalist  attorney,  played 
a  leading  role  in  advocating  Jay's  position  before  the  committee  and  in  the  court 
of  public  opinion.58  Troup  had  been  Alexander  Hamilton's  roommate  at 
Columbia  (then  called  King's  College)  and  had  studied  law  under  Jay's  tutelage.59 
One  could  consider  Troup's  role  roughly  comparable  to  the  one  that  Ron  Klain 
played  for  Al  Gore  during  the  legal  fight  over  the  2000  presidential  election. 


of  1792.  The  mere  fact  that  Hoffman  briefly  contemplated  the  possibility  is  therefore  significant. 
But  it  is  important  to  understand  that  his  suggestion  of  pursuing  quo  warranto,  which  comes  in  the 
form  of  a  question,  is  entirely  tentative.  Indeed,  the  very  next  sentence  of  Hoffman's  letter  reveals, 
"This  is  quite  a  new  idea  in  my  mind  [and  I]  have  thrown  it  out  for  your  consideration."  The 
suggestion,  moreover,  seems  to  have  been  dropped  almost  as  soon  as  it  was  made;  no  evidence  has 
been  uncovered  to  indicate  that  either  Hoffman  or  anyone  else  pursued  it  further. 

It  is  worth  noting  as  well  that  even  Hoffman's  brief  suggestion  contemplated  legislative  action 
as  a  precursor  to  seeking  a  writ  of  quo  warranto  in  court.  Given  the  exclusive  jurisdiction  of  the 
canvassing  committee  under  existing  New  York  law,  Hoffman  was  not  suggesting  that  the 
Federalists  could  pursue  a  judicial  remedy  against  the  canvassing  committee  without  some 
additional  legislative  intervention.  In  other  words,  Hoffman  never  seemed  to  have  in  mind  the  idea 
of  seeking  a  writ  of  quo  warranto  based  purely  on  protecting  the  fundamental  constitutional  right 
to  suffrage,  even  though  Federalists  at  the  time  were  attacking  the  canvassing  committee  in 
constitutional  terms.  See  infra  notes  113,  116-18  and  accompanying  text.  Instead,  Hoffman 
apparently  only  thought  of  quo  warranto  as  a  kind  of  ancillary  fix  to  a  potential  separation-of- 
powers  problem;  it  would  be  necessary  for  the  legislature  to  overturn  a  canvassing  committee's 
certification  of  an  election,  but  if  the  legislature  could  not  itself  issue  the  overruling  order  (because 
doing  so  would  be  in  the  nature  of  a  judicial  decree  and  therefore  improper  for  the  legislature  to 
perform  itself),  perhaps  the  legislature  by  statute  could  empower  the  judiciary  to  issue  an 
appropriate  quo  warranto  decree.  In  any  event,  historically  enticing  as  it  is,  Hoffman's  tentative 
suggestion  came  to  naught. 

55.  Berkin,  supra  note  27. 

56.  Taylor,  supra  note  27,  at  177. 

57.  Id. 

58.  Robert  Troup  to  Jay  (May  6, 1 792),  in  3  Correspondence  and  Public  Papers  of  John 
Jay,  1782-1793,  at  422-23  (Henry  P.  Johnston  ed.,  1891);  id.  at  424-27. 

59.  Joseph  Blunt,  American  Annual  Register  of  Public  Events  for  the  Year  1831- 
32,  at  389-90  (1833). 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  33 


After  hearing  the  news  concerning  the  partisan  make-up  of  the  canvassing 
committee,  Troup  wrote  Jay  on  June  1 0  saying,  "My  hopes,  however,  are  not  very 
strong,  considering  the  situation  of  that  infamous  party."60  In  another  letter, 
Troup's  fears  were  expressed  even  more  vividly:  "I  confess  that  I  have  serious 
apprehensions  that  no  motives  whatever  will  be  sufficiently  powerful  to  restrain 
them  from  so  flagrant  an  attack  on  the  rights  of  an  election."61  Thus,  there  was 
already  a  fear  of  a  party-line  vote. 

Another  Federalist  attorney  who  helped  to  advocate  Jay's  position  was  James 
Kent.62  At  the  time,  Kent  was  a  relatively  junior  member  of  the  state  assembly.63 
He  later  would  become  chancellor  of  New  York,  the  state's  highest  judicial 
officer,  as  well  as  the  first  professor  of  law  at  Columbia  University.64  Often 
called  the  "American  Blackstone"  because  of  his  Commentaries  on  American 
Law  modeled  after  Blackstone's  treatment  of  English  law,  Kent  is  an  important 
figure  for  understanding  the  Founding  Generation's  views  on  how  a  constitutional 
democracy  should  handle  a  disputed  chief  executive  election,  either  for  governor 
or  president.65 

Thus,  it  is  significant  that  Kent,  like  Troup,  focused  on  the  partisan  imbalance 
of  the  canvassing  committee  as  the  critical  defect  in  the  state's  legal  machinery 
for  dealing  with  the  dispute  over  the  Otsego  ballots.  In  a  letter  to  his  brother,  he 
wrote: 

The  Senate  did  as  they  ought  to  do;  they  chose  three  friends  to  Jay: 
Jones,  Roosevelt,  and  Gansevoort;  and  three  friends  of  Clinton:  Geltson, 
Joshua  Sands,  and  Tillotson.  The  Assembly  chose  six  devoted 
Clintonians,  to  wit:  Jonathan  N.  Havens,  M.  Smith,  John  D.  Coe,  Pierre 
Van  Cortlandt,  Junior,  Daniel  Graham,  and  David  McCarty.  This  I  deem 
to  have  been  a  corrupt  thing  in  the  Assembly.66 

"Corrupt"  is  a  strong  word,  but  Kent  meant  it.  He  thought  that  the  canvassing 
committee  could  not  fairly  and  legitimately  decide  which  of  the  two  sides  won 
the  election  unless  the  committee's  membership  was  evenly  balanced  towards 
both  sides:  "These  canvassers  form  a  court  of  the  highest  importance,  a  court  to 
decide  on  the  validity  of  elections  without  appeal.   They  ought  at  least  to  have 


60.  Robert  Troup  to  Jay  (June  10,  1792),  supra  note  58,  at  430. 

6 1 .  Letter  from  Robert  Troup  to  John  Jay  (May  27, 1 792)  (on  file  with  Columbia  University 
Library),  available  at  http://wwwapp.cc.columbia.edu/ldpd/jay/item?mode=item&key=columbia. 
jay.  11219.  Troup  was  confident  in  the  merits  of  Jay's  position  and  thus  saw  bias  as  the  only 
obstacle  to  victory:  "my  mind,  if  I  had  confidence  in  the  integrity  of  the  canvassers,  would  be  in 
a  state  of  perfect  tranquility."  Id. 

62.  William  Kent,  Memoirs  and  Letters  of  James  Kent  43  (Da  Capo  Press  1970) 
(1898). 

63.  Id  at  37-42. 

64.  See  generally  John  Theodore  Horton,  James  Kent:  A  Study  in  Conservatism, 
1763-1847  (1939)  (a  major  scholarly  biography  of  Kent). 

65.  See  id. 

66.  Kent,  supra  note  62,  at  44-45. 


34  INDIANA  LAW  REVIEW  [Vol.  44:23 


been  equally  biased."67  This  passage  in  Kent's  letter  is  one  of  the  most  important 
from  the  whole  episode.  It  shows  that  a  major  participant  in  the  controversy,  who 
would  later  become  one  of  the  nation's  foremost  legal  thinkers,  recognized  that 
the  legitimacy  of  the  dispute's  outcome  required  the  impartiality  of  the  tribunal 
charged  with  resolving  it.  In  this  context,  impartiality  required  more  than  sound 
judicial  temperament.  It  required  the  physical  manifestation  of  evenhandedness 
by  making  sure  that  the  tribunal  was  composed  of  equal  numbers  from  each  of  the 
two  competing  political  parties. 

The  phrase  "equally  biased"  is  perhaps  infelicitous,  but  it  is  a  personal  letter, 
after  all,  and  it  unambiguously  gets  the  point  across.  Kent  recognized  that  one 
could  not  expect  partisans  to  be  able  to  put  aside  their  partisan  leanings  in  the 
context  of  a  dispute  over  the  outcome  of  a  major  statewide  election  like  that  for 
governor  (or  presidential  electors).  Therefore,  to  guard  against  the  likelihood  of 
partisans  acting  out  of  partisanship,  one  needed  to  put  an  equal  number  from  each 
party  on  whatever  "court"  had  jurisdiction  to  adjudicate  this  particular  kind  of 
dispute. 

Although  Kent  clearly  recognized  this  important  point — and  that  fact  alone 
is  of  major  significance — we  shall  see  that  neither  he  nor  anyone  else  acted  on 
this  recognition.  This  fact,  too,  is  of  extreme  importance.  Why  could  the 
Founders  not  create  an  impartial  tribunal,  which  Kent  so  clearly  saw  as  essential 
to  the  legitimacy  of  an  election's  outcome?  Even  if  they  could  not  create  this 
impartial  tribunal  in  1787,  when  they  wrote  the  Constitution  (and  New  York's 
election  statute),  why  could  they  not  do  so  after  they  lived  through  the  disputed 
gubernatorial  election  of  1792?  That  question  is  a  vexing  and  pressing  one. 

II.  The  Legal  Battle  Before  the  Canvassing  Committee 

The  canvassing  committee  met  from  May  29  to  June  12  of  1 792.68  In  the  run- 
up to  its  deliberations,  both  sides  conducted  organized  and  energetic  public 
relations  campaigns  over  whether  the  committee  should  count  the  Otsego  ballots. 
Although  they  had  no  television  or  Internet,  they  had  a  multitude  of  newspapers 
and  pamphleteers,  and  both  sides  made  maximum  use  of  the  available  media  to 
press  their  legal  arguments  on  why  they  should  prevail.69 

A.   The  Use  of  Lawyers  to  Win  a  Disputed  Election 
A  common  belief  today  is  that,  prior  to  the  2000  presidential  election, 


67.  Id.  at  45.  A  recent  experiment  has  tested  a  version  of  the  evenly  balanced  tribunal  that 
Kent  contemplated.  See  Edward  B.  Foley,  The  McCain  v.  Obama  Simulation:  A  Fair  Tribunal  for 
Disputed  Presidential  Elections,  13  N.Y.U.  J.  LEG.  &  Pub.  POL.  (forthcoming  2010).  One 
significant  feature  of  this  experiment  was  that  its  three-member  tribunal  maintained  its 
evenhandedness  while  avoiding  the  risk  of  deadlock  by  having  the  two  members  from  opposite 
parties  choose  a  neutral  tiebreaker  to  join  them.  Kent's  plea  for  an  impartial  tribunal,  by  contrast, 
did  not  specify  any  details  on  exactly  how  it  should  be  structured. 

68.  Taylor,  supra  note  27,  at  1 80. 

69.  See  Berkin,  supra  note  27. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  35 


political  candidates  did  not  enlist  large  teams  of  lawyers  in  an  effort  to  litigate 
their  way  to  victory.70  But  this  current  notion  is  an  anachronistic  fallacy.  A 
review  of  previously  close  presidential  elections — including  1884  and  1916,  as 
well  as  the  monumental  legal  fight  over  the  outcome  in  1876 — reveals  that 
presidential  candidates  historically  have  been  prepared  to  use  attorneys  to  wage 
a  legal  battle  over  counting  of  ballots  when  their  attorneys  advise  them  that  there 
are  potentially  winnable  legal  arguments  to  make.71  Similarly,  Clinton  and  Jay 
used  attorneys  in  1792  much  the  same  way  as  did  Bush  and  Gore  in  2000.  The 
1792  legal  fight  was  confined  to  the  jurisdiction  of  the  canvassing  committee 
because  New  York  law  unambiguously  gave  that  body  exclusive  legal  jurisdiction 
over  the  dispute,  whereas  Bush  and  Gore  could  litigate  in  multiple  forums.  But 
Jay's  lawyers  would  have  pursued  their  legal  arguments  in  other  venues,  had  they 
been  available,  and  they  explored  ways  to  get  around  the  exclusivity  of  the 
committee's  jurisdiction.  The  use  of  lawyers  to  obtain  electoral  victory  in  both 
1792  and  2000  has  more  similarities  than  differences. 

Aaron  Burr  and  Rufus  King,  the  two  U.S.  senators  from  the  state,  each  took 
the  most  publicly  visible  role  for  his  candidate's  side.72  They  were  the  James 
Baker  and  Warren  Christopher  of  their  day.  Burr  orchestrated  Clinton's  legal 
position,  as  Baker  did  two  centuries  later  for  Bush.73  King  was  the  illustrious 
statesman  who  added  gravitas  to  Jay's  position,  foreshadowing  the  role  that 
Christopher  was  supposed  to  play  for  Gore.74 

As  in  2000,  Burr  and  King  were  but  the  pinnacles  of  the  two  respective 
armies  of  attorneys.  Burr  recruited  an  array  of  dignitaries  to  write  legal 
memoranda  in  Clinton's  defense.  Most  prominent  among  these  was  Edmund 
Randolph,  then  Attorney  General  of  the  United  States.  Randolph's  role,  thus,  was 
a  little  like  Ted  Olson's  in  Bush  v.  Gore.15 

In  addition  to  King,  Troup,  and  Kent,  Jay's  team  included  figures  forgotten 


70.  See  generally  Richard  L.  Hasen,  The  Untimely  Death  o/Bush  v.  Gore,  60  STAN.  L.  Rev. 
1  (2007)  (discussing  rise  of  election  litigation  since  2000). 

7 1 .  Edward  B.  Foley,  Close  Presidential  Elections:  The  1 880s  &  1916,  Disputed  Elections 
Seminar  (Feb.  19,  2010)  (unpublished  manuscript)  (on  file  with  author). 

72.  See  generally  Robert  Troup  to  Jay  (May  20,  1792),  supra  note  58,  at  424-27;  Davis, 
supra  note  38,  at  331-57  (detailing  the  roles  of  Burr  and  King). 

73.  See  DAVIS,  supra  note  38,  at  333. 

From  the  moment  that  Colonel  Burr  was  driven  to  interfere  in  the  controversy,  he  took 
upon  himself,  almost  exclusively,  the  management  of  the  whole  case  on  the  side  of  the 

anti-federal  party Full  scope  was  allowed  for  the  display  of  those  great  legal  talents 

for  which  he  was  so  pre-eminently  distinguished. 
Id.  (quoting  Burr). 

74.  See  generally  Jeffrey  Toobin,  Too  Close  to  Call:  The  Thirty-Six-Day  Battle  to 
Decide  the  2000  Election  (2001)  (explaining  that  as  events  in  Florida  unfolded,  Christopher 
ended  up  receding  into  the  background,  largely  abandoning  the  effort  to  push  Gore's  position  to 
Ron  Klain  and  David  Boies). 

75.  Olson  presented  the  oral  argument  for  Bush  in  the  Supreme  Court  and  would  later  serve 
as  Bush's  Solicitor  General. 


36  INDIANA  LAW  REVIEW  [Vol.  44:23 


to  most  of  us  today,  but  who  were  prominent  in  their  times — for  example, 
William  Lewis,  who  had  been  a  federal  judge  in  Philadelphia,76  and  John 
Trumbull  of  Connecticut,  who  would  become  a  judge  and  had  been  a  law  partner 
of  John  Adams.77  Alexander  Hamilton  also  played  a  role  in  Jay's  camp,  although 
he  was  largely  a  behind-the-scenes  political  strategist. 

A  smattering  of  names  alone  does  not  convey  the  scale  of  the  legal  effort  in 
the  Republic's  first  major  disputed  election.  As  historian  Frank  Monaghan  wrote 
in  his  biography  of  Jay,  "every  lawyer"  in  New  York  City,  as  well  as  some  from 
Philadelphia,  "rummaged  in  his  books  for  relevant  arguments."78  At  the  time, 
Troup  himself  wrote  to  Jay  that  while  the  canvassers  were  deliberating,  "the 
lawyers,  who  are  friendly  to  your  interests,  met,  and  we  determined  to  address  the 
public  on  the  subject  of  the  Otsego  votes  and  give  a  formal  opinion  upon  it  as 
lawyers."79  The  effort  was  well-orchestrated;  Troup  boasted,  "We  have  taken  a 
bold  and  decisive  part  ...  It  threw  the  Clintonian  lawyers  also  into  a  ferment; 
they  went  about  the  city  to  and  from  the  place  of  canvassing  like  mad  men."80 

Thus,  the  energy  that  motivated  each  side  to  win  the  legal  dispute  easily 
matched  that  of  the  2000  election.  In  one  letter  to  Jay,  Troup  complained  that 
"Brockholts  and  his  virtuous  colleagues  are  stuffing  the  news  papers  with 
dissertations  on  the  subject."81  But  Troup  added  that  their  side  was  going  to 
match  the  effort:  "Mr.  Harrison  on  our  side  has  written  a  very  ample  &  able 
refutation  of  all  the  arguments  urged  in  these  dissertations  &  the  refutation  will 
appear  in  tomorrow's  paper."82  It  was,  in  other  words,  a  paper-based  version  of 
the  same  legal  tit-for-tat  that  occurred  on  CNN  in  2000. 

B.  Advocacy  Based  Not  on  Precedents,  But  Principles 

A  full  understanding  of  this  combined  legal  and  public  relations  battle  would 
require  a  review  of  all,  or  at  least  many,  of  the  newspapers  and  pamphlets  that 
weighed  in  on  the  issue.  In  the  section  that  follows,  we  will  consider  only  the 
arguments  of  Burr  and  King  as  the  leaders  of  each  team.  But  beforehand  one 
general  observation  is  appropriate.  It  is  striking  how  the  lawyers  of  the  time  were 
so  evidently  fashioning  new  American  arguments  to  address  a  new  American 
issue,  which  was  arising  for  the  first  time  in  the  context  of  the  post-revolutionary, 
non-monarchical  democratic  republic  that  our  founding  fathers  created  for  us.  As 


76.  Biographical  Directory  of  Federal  Judges:  Lewis,  William,  FED.  JUDICIAL  CTR., 
http://www.ijc.gov/servlet/nGetInfo?jid==  1 395&cid=999&ctype=na&instate=na  (last  visited  Nov. 
12,2010). 

77.  Trumbull,  John,  in  27  ENCYCLOPAEDIA  BRITTANICA  324  ( 1 1  th  ed.  1911). 

78.  Frank  Monaghan,  John  Jay  334  (1935). 

79.  Robert  Troup  to  Jay  (June  10,  1792),  supra  note  58,  at  429. 

80.  Id. ;  see  also  HORTON,  supra  note  64  (illustrating  how  Kent's  papers  also  reveal  the  efforts 
that  he,  along  with  other  Federalists  lawyers,  undertook  to  support  Jay's  legal  position). 

8 1 .  Letter  from  Robert  Troup  to  John  Jay  (June  3,  1 792)  (on  file  at  the  Columbia  University 
Butler  Library,  Rare  Book  &  Manuscript  Division). 

82.  Id. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  37 


lawyers,  they  had  been  trained  to  read  and  cite  English  precedents,  and  they  did 
so.  But  none  of  those  precedents  was  really  on  point  for  the  problem  at  hand: 
ballots  in  an  election  for  the  chief  executive  of  a  free  democratic  republic.  New 
York  was  a  sovereign  state  that  had  declared  its  independence  from  Great  Britain. 
To  be  sure,  New  York  had  very  recently  joined  with  the  twelve  other  free  and 
independent  states  of  America  to  form  "a  more  perfect  union"  at  the 
Constitutional  Convention.  But  electing  the  governor  of  New  York  was  not 
entirely  unlike  trying  to  elect  the  King  of  England — an  impossibility,  of  course, 
and  thus  unprecedented. 

It  is  worth  pausing  to  reflect  on  just  how  inexperienced  Americans  were  in 
1792  with  the  phenomenon  of  a  statewide  election  for  governor.  Only 
Connecticut  and  Rhode  Island  had  elected  governors  during  colonial  times,  and 
these  had  been  weak  chief  executives  largely  beholden  to  each  colony's 
legislature.83  The  other  colonies  had  royally  appointed  governors.  By  1 792,  only 
New  York  and  Massachusetts  had  strong  governors  comparable  to  the  chief 
executive  role  of  the  President  in  the  federal  government.  New  York  had  been 
electing  its  governor  every  three  years  since  1 777,  for  a  total  of  five  elections 
before  1792,  and  each  of  those  times  Clinton  had  won  decisively.84 
Massachusetts  first  elected  its  governor  in  1780,  did  so  annually  until  1920,  and 
thus  had  a  dozen  gubernatorial  elections  before  1792,  but  it  did  not  have  a 
significant  disputed  gubernatorial  election  until  1806.  Thus,  New  York  had  no 
relevant  precedent  for  the  Clinton- Jay  battle. 

New  Hampshire  had  begun  electing  its  governor  in  1784,  Pennsylvania  in 
1790,  and  Delaware  in  1792.85  That  was  it — a  total  of  seven  states  with  very 
limited  experience  with  gubernatorial  elections  by  the  time  of  the  Clinton- Jay 
dispute.  The  rest  of  the  original  thirteen  states,  mostly  in  the  South,  had 
legislatively  appointed  governors  and  would  not  elect  them  until  well  into  the 
nineteenth  century.86  Thus,  in  the  brief  period  between  the  Declaration  of 
Independence  in  1776  and  the  New  York  election  of  1792,  there  was  virtually 
nothing  that  the  new  nation  had  yet  encountered  to  prepare  it  for  the  legal  fight 
between  Clinton  and  Jay  before  the  canvassing  committee.  In  1782,  there  had 
been  a  dispute  in  an  election  for  a  single  seat  in  Pennsylvania's  Supreme 
Executive  Council  during  the  period  before  that  state  had  a  single-person  chief 


83 .  Joseph  E.  Kallenbach,  The  American  Chief  Executive:  The  Presidency  and  the 
Governorship  15  (1966). 

84.  Michael  J.  Dubin,  United  States  Gubernatorial  Elections,  1776-1860:   The 
Official  Results  by  State  and  County  160  (2003). 

85.  Mat 26,  146,215. 

86.  Here  are  the  years  in  which  each  of  these  states  first  elected  their  governors: 
Georgia  1825 

North  Carolina        1836 
Maryland  1838 

New  Jersey  1844 

Virginia  1851 

South  Carolina        1 865 


38  INDIANA  LAW  REVIEW  [Vol.  44:23 


executive.87  William  Lewis,  who  was  from  Pennsylvania,  drew  the  rest  of  the  Jay 
team's  attention  to  that  precedent.88  But  that  precedent  was  of  limited  utility 
because  it  involved  an  election  for  a  representative  from  a  district  to  a  multi- 
member body;  therefore,  it  resembled  a  legislative  election  much  more  than  the 
statewide  gubernatorial  election  in  New  York. 

As  for  the  collective  experience  of  the  new  United  States  during  the  entire 
time  that  it  consisted  of  British  colonies,  there  was  absolutely  nothing  for  the 
lawyers  to  draw  upon.  A  leading  text  on  colonial  elections  flatly  states,  "The 
writer  has  found  nothing  which  would  tend  to  show  how  contests  concerning  the 
election  of  governor  and  other  general  officers  were  decided."89  Thus,  the 
lawyers  for  Clinton  and  Jay  were  without  relevant  precedents,  and  they 
recognized  as  much.  Indeed,  they  knew  that  they  would  be  creating  the  first 
major  precedent  for  the  new  Republic  on  how  to  handle  a  disputed  statewide 
election  for  chief  executive.  Moreover,  they  knew  that  this  first  important 
precedent  would  have  relevance  for  presidential  elections  as  well  as  gubernatorial 
ones.  Reflecting  on  the  significance  of  their  situation  in  a  letter  to  Hamilton, 
King  worried  that  if  the  law  proved  inadequate  to  the  task  at  hand,  "what  are  we 
to  expect  from  disputes  that  will  arise  in  presidential  elections?"90 

Given  the  absence  of  relevant  precedent,  the  attorneys  for  Clinton  and  Jay 
turned  to  fundamental  principles  to  support  each  side's  cause.  They  had  invoked 
fundamental  principles  in  the  Declaration  of  Independence,  the  Constitution,  the 
supporting  Federalist  Papers,  and  in  all  the  constitutional  promulgations  in  the 
states  during  the  revolutionary  era.  But  now,  for  the  first  time,  they  needed 
principles  for  how  to  handle  a  dispute  over  ballots  that  would  be  decisive  in  the 
democratic  election  of  the  governor  of  their  state.  What  is  particularly  important 
to  us  is  that  they  were  unable  to  settle  upon  a  single  set  of  principles.  Their 
dispute  was  not  about  how  to  apply  an  agreed-upon  set  of  principles  to  a 
particular  factual  situation.  Instead,  the  Clinton  and  Jay  supporters  divided  over 
the  first  principles  that  should  govern  their  dispute.  Moreover,  their  disagreement 
over  first  principles  is  the  beginning  of  a  basic  jurisprudential  debate  in  the  field 
of  election  law  that  continues  to  this  day.  Indeed,  it  is  remarkable  how  much  the 
basic  arguments  on  both  sides  of  the  Clinton- Jay  dispute  are  essentially  the  same 
as  the  basic  arguments  of  the  Bush-Gore  battle,  as  well  as  the  Coleman-Franken 
fight  over  the  2008  U.S.  Senate  election  in  Minnesota. 

C.  The  Arguments  of  Burr  and  King 

The  opinions  of  Aaron  Burr  and  Rufus  King  have  stature  not  merely  because 
of  their  authors'  prominence  (both  being  New  York's  U.S.  senators  at  the  time), 


87.   The  1782  Pennsylvania  dispute  will  be  analyzed  in  the  book  that  Steven  Huefher  and  I 
are  writing;  additional  research  is  necessary  to  develop  a  full  understanding  of  that  episode. 
8  8 .   See  infra  note  201. 

89.  CORTLANDT  F.  BISHOP,  HISTORY  OF  ELECTIONS  rN  THE  AMERICAN  COLONIES  1 88  (Burt 

Franklin  ed.,  1893). 

90.  See  infra  notes  184-86  and  accompanying  text. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  39 


but  because  their  opinions  were  officially  sought  by  the  canvassing  committee. 
The  canvassers  did  so  because  they  were  from  the  beginning  divided  amongst 
themselves  on  what  to  do  about  the  dispute.91    Thus,  they  specifically  asked 
Senators  Burr  and  King  to  address  these  questions: 

1 .  Was  Richard  R.  Smith  the  sheriff  of  the  county  of  Otsego  when  he 
received  and  forwarded  the  ballots  by  his  special  deputy? 

2.  If  he  was  not  sheriff,  can  the  votes  sent  by  him  be  legally  canvassed? 

3.  Can  the  joint  committee  canvass  the  votes  [from  the  one  town,  Cherry 
Valley]  when  sent  to  them  in  two  parcels,  one  contained  in  a  box,  and  the 
other  contained  in  a  paper,  or  separate  bundle?  Or, 

4.  Ought  they  to  canvass  those  sealed  in  the  box,  and  reject  the  others?92 

In  response  to  this  request,  Burr  wrote  that  Richard  Smith  was  definitely  not  a  de 
jure  sheriff  because  his  exercising  authority  for  that  office  had  expired.93  More 
importantly,  Burr  denied  that  Smith  could  be  considered  a  de  facto  sheriff  since 
he  had  openly  repudiated  his  claim  to  the  office  and,  more  importantly,  had 
openly  assumed  a  different  position  (that  of  town  supervisor)  that  was 
incompatible  with  service  as  sheriff.  Burr  claimed  that  there  was  no  "urgent 
public  necessity"  or  imperative  that  Smith  act  immediately  as  sheriff  to  send  the 
ballots  to  the  secretary  of  state.94  The  task  could  have  waited  for  his 
replacement's  commission  to  arrive,  or  efforts  could  have  been  made  to  move  the 
transmission  of  that  commission  more  hastily.95 

In  making  this  last  point,  Burr  was  alluding  to  political  machinations  in 
Otsego  County  that  caused  the  delay  in  replacing  Smith  as  sheriff.  Smith  was  a 
Federalist  allied  with  Jay  and  with  William  Cooper,  the  leading  figure  of  Otsego 
County  at  the  time,  after  whom  Cooperstown  is  named.  In  a  Pulitzer  Prize- 
winning  history  of  Cooper  and  his  role  in  New  York  politics,  historian  Alan 
Taylor  describes  how  Cooper  connived  with  Smith  and  Jay's  running  mate  for 
lieutenant  governor,  Stephen  Van  Rensselaer,  to  keep  the  commission  out  of  the 
hands  of  the  new  appointee,  Benjamin  Gilbert.96 

The  power  to  appoint  Smith's  successor  had  been  in  the  hands  of  a  board 
controlled  by  Clinton  as  the  incumbent  governor.97  Consequently,  Gilbert,  unlike 
Smith,  was  emphatically  not  a  Federalist,  as  Clinton  had  rejected  Federalist 
recommendations     for     Smith's     successor     (including     Smith's     own 


9 1 .  Davis,  supra  note  38,  at  332. 

92.  Id.  at  335. 

93.  Id.  at  340. 

94.  Id. 

95.  Id.  ("Mr.  Gilbert  [the  replacement]  was  qualified  in  season  to  have  discharged  the  duty, 
and,  for  aught  is  shown,  his  attendance,  if  really  desired,  might  have  been  procured  still  earlier."). 

96.  Taylor,  supra  note  27,  at  179. 

97.  Id.  at  167. 


40  INDIANA  LAW  REVIEW  [Vol.  44:23 


recommendation).98  Van  Rensselaer  was  the  only  Federalist  on  the  appointment 
board  and  managed  to  get  hold  of  Gilbert's  commission,  saying  that  he  would  be 
responsible  for  its  delivery  to  Cooper  in  Otsego  County,  to  pass  it  on  to  Gilbert 
himself.  But  Van  Rensselaer  purposively  held  onto  it  so  that  Cooper  could  keep 
Smith  as  acting  sheriff  until  after  the  delivery  of  Otsego's  ballots  to  the  secretary 
of  state,  for  the  specific  purpose  that  the  delivery  of  ballots  would  be  in  the  hands 
of  Smith,  a  Federalist."  Indeed,  Van  Rensselaer  wrote  a  letter  to  Cooper 
unabashedly  expressing  this  plan: 

I  delayed  sending  Sheriff  Gilbert's  commission  till  after  the  Election  lest 
by  some  irregularity  your  Poll,  which  in  all  probability  will  turn  the 
Election  should  be  rejected.  .  . .  Pray  detain  the  Commission  until  Smith 
has  deputed  some  faithful  person  to  deliver  the  box  [of  ballots]  to  the 
Secretary  [of  state].100 

Although  Van  Rensselaer  expressed  fear  that  Gilbert,  as  an  anti-Federalist,  would 
use  his  power  as  sheriff  to  swing  the  election  to  Clinton,  Van  Rensselaer  was 
essentially  engaged  in  the  same  impropriety  as  Jay's  running  mate.  By  his  own 
admission,  he  was  the  one  using  his  official  power  to  manipulate  the  vote- 
counting  process  to  make  sure  that  a  loyal  partisan  controlled  the  ballots. 
Moreover,  Smith  kept  the  county's  ballots  for  five  days  in  a  safe  located  in  a  store 
he  co-owned  with  Cooper,  the  county  boss  and  his  Federalist  ally.  To  make 
matters  even  worse,  the  person  that  Smith  picked  as  his  deputy  to  deliver  the 
ballots,  Leonard  Goes,  was  a  loyal  affiliate  of  Van  Rensselaer.  Historian  Alan 
Taylor,  based  on  his  thorough  review  of  all  the  available  evidence,  concludes  that 
in  his  judgment  neither  Cooper  nor  Smith  actually  stuffed  the  ballot  box  for  Jay 
while  it  was  in  his  hands.101  (For  whatever  it  might  be  worth,  Smith  submitted  an 
affidavit  swearing  that  he  "did  fairly,  honestly,  and  impartially  keep  them  in  [his] 
possession.")102  Instead,  the  conspiracy  to  delay  Gilbert's  commission  seems 
motivated,  as  Van  Rensselaer  expressed,  as  a  kind  of  insurance  policy  or 
preventative  measure  against  letting  the  ballots  fall  into  the  other  side's  hands. 
In  Taylor's  words,  "[i]t  is  very  unlikely  that  Cooper,  Smith,  or  Goes  tampered 
with  the  ballots,  given  their  confidence  that  Otsego  had  produced  near  unanimity 
for  Jay.  They  had  simply  taken  excessive  precautions  to  safeguard  the  precious 
ballots  that  would,  they  anticipated,  carry  the  election."103  Maybe  so,  but  it  sure 
looked  horrible.  It  would  be  as  if  during  the  2000  presidential  election,  Jeb  Bush 
or  Katherine  Harris  had  intentionally  delayed  the  replacement  of  the  custodian  of 


98.  Id.  at  179. 

99.  Id. 

100.  Taylor,  supra  note  27,  at  179. 

101.  Id. 

102.  Berkin,  supra  note  27,  at  27.  To  refute  the  charge  that  Cooper  had  improper  access  to 
the  ballots,  Smith  said  that  his  office  had  been  in  Cooper's  store  for  years  with  the  implication  that 
he  really  could  not  store  them  any  other  place  and  that  there  was  nothing  untoward  about  it.  Id.  at 
28. 

1 03.  Taylor,  supra  note  27,  at  1 79. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  41 


the  ballots  in  Palm  Beach  County  to  make  sure  that  the  ballots  remained  in  loyal 
Republican  hands. 

This  background  is  important  for  evaluating  Burr's  argument  to  the 
canvassing  committee  that  the  formal  defect  in  Smith's  status  as  sheriff  mattered 
and  that  there  should  be  strict  enforcement  of  the  election  code  to  assure  the 
integrity  of  elections.  "The  direction  of  the  law  is  positive,"  Burr  wrote  to 
support  his  conclusion  that  "the  ballots  delivered  by  the  deputy  of  Mr.  Smith 
cannot  be  legally  canvassed."104  Burr  acknowledged  that  if  the  only  defect  were 
the  ballots  from  Cherry  Valley,  they  could  be  set  aside,  and  the  remainder  could 
be  counted.  But  the  defect  in  Smith's  status  applied  to  all  the  ballots.  In  his 
view,  it  was  not  a  mere  formality.  Rather,  "considering  the  importance  of  the 
trust  in  regard  of  the  care  of  the  ballots  and  the  extreme  circumspection  which  is 
indicated  in  the  law  relative  to  elections,"105  the  "positive"  law  must  be  followed. 
As  such,  there  was  no  delivery  of  the  Otsego  ballots  by  either  a  de  jure  or  de  facto 
sheriff,  and  thus  the  situation  was  one  in  which  the  "sound  discretion"  of  the 
canvassing  committee  "would  require  that  the  whole  should  be  rejected."106 
Although  Burr  hedged  a  bit  by  referring  to  the  canvassing  committee's  authority 
to  exercise  "sound  discretion"  and  "judgment,"  he  had  no  fear  that  they  would 
choose  Jay  over  Clinton  insofar  as  their  hands  were  not  completely  tied  one  way 
or  the  other.  Nonetheless,  in  stating  his  bottom-line  conclusion,  Burr  suggested 
that  the  canvassing  committee  actually  had  no  legal  alternative  to  ruling  in 
Clinton's  favor  on  the  ground  that  the  entirety  of  the  Otsego  ballots  "cannot  be 
legally  canvassed."107 

In  his  opinion  to  the  canvassing  committee,  Burr  did  not  overtly  refer  to  Van 
Rensselaer's  role  in  causing  a  loyal  Federalist  without  any  lawful  authority  to  be 
the  one  to  deliver  the  Otsego  ballots.  Burr  was  the  consummate  crafty  politician 
and  presumably  wanted  to  avoid  making  enemies  unnecessarily.  He  undoubtedly 
believed  that  mentioning  the  relevant  facts  of  what  happened  in  Otsego  County 
was  unnecessary  and  that  his  literalist  view  of  election  law  would  resonate  with 
those  Clintonians  on  the  canvassing  committee  who  distrusted  Van  Rensselaer 
and  his  Federalist  co-conspirators. 

By  contrast,  in  advocating  Jay's  position  before  the  canvassing  committee, 
King  premised  his  argument  on  the  assumption  that  there  had  been  no  allegation 
of  impropriety  with  respect  to  the  ballots  themselves,  nor  any  assertion  of  ballot 
tampering  while  they  were  in  Smith's  custody  and  during  their  delivery  to  the 
secretary  of  state.108  Accordingly,  King  emphasized  that  the  voters  should  not 


104.  Davis,  supra  note  38,  at  340. 

105.  Id.  at  341. 

106.  Id. 

107.  Mat  340. 

1 08.  A  copy  of  King's  statement  to  the  canvassers  is  also  contained  in  Davis,  supra  note  38, 
at  336.  An  original  version  of  both  statements  can  be  found  in  An  Impartial  Statement  of  the 
Controversy  Respecting  the  Decision  of  the  Late  Committee  of  Canvassers  (1792). 
Despite  its  title,  the  "impartiality"  of  this  pamphlet  can  reasonably  be  questioned,  as  it  is  understood 
that  Burr  orchestrated  the  particular  selection  of  opinions  in  an  effort  to  influence  public  opinion 


42  INDIANA  LAW  REVIEW  [Vol.  44:23 


suffer  from  the  deficiencies  in  Smith's  lawful  status  as  sheriff.  King  thought  that 
under  a  provision  of  the  New  York  constitution  that  permitted  sheriffs  to  hold 
office  for  up  to  four  years,  it  could  be  argued  that  Smith  was  de  jure  sheriff  until 
his  successor  actually  replaced  him,  which  had  not  yet  occurred  at  the  time  the 
ballots  were  transmitted.109 

But  King  placed  more  emphasis  on  his  contention  that  Smith  was  entitled  to 
be  considered  de  facto  sheriff  because  by  deputizing  Leonard  Goes,  he  was 
publicly  continuing  to  act  as  sheriff  "under  colour  of  a  regular  appointment."110 
He  bolstered  his  de  facto  argument  by  underscoring  the  necessity  of  protecting 
the  rights  of  the  voters.  As  King  put  it,  Smith's  actions  "ought  to  be  deemed 
valid"  because  considering  them  so  is  "necessary  to  the  carrying  into  effect  the 
rights  of  suffrage  of  the  citizens  of  that  county."111  Elsewhere  in  his  opinion, 
King  was  even  more  emphatic  in  stating  that  the  interest  of  the  voters  should  be 
paramount  in  the  interpretation  and  enforcement  of  the  state's  election  laws.  He 
insisted  that  "[t]he  election  law  is  intended  to  render  effectual  the  constitutional 
right  of  suffrage;  it  should  therefore  be  construed  liberally,  and  the  means  should 
be  in  subordination  to  th[at]  end."112  Neither  David  Boies  nor  any  of  Gore's  other 
lawyers  could  have  said  it  better. 

Jay's  lawyers  repeated  this  basic  principle  throughout  their  public  campaign. 
Here  is  how  one  missive  signed  by  seven  New  York  lawyers  put  it:  "The  law  on 
every  occasion  should  be  liberally  expounded  to  protect  and  enforce  the  rights  of 
suffrage  as  constituting  the  basis  on  which  the  freedom  of  our  government 
depends."113  Jay's  team  also  repeatedly  complained  that  the  other  side  was 
resting  on  a  mere  technicality,  insofar  as  Burr  and  Clinton's  other  allies  expressed 


to  his  side  of  the  case.  See  Young,  supra  note  27,  at  3 18. 

109.  Davis,  supra  note  38,  at  336. 

110.  Mat  337. 

111.  Id.  (emphasis  in  original). 

112.  Id.  at  338. 

113.  This  statement  appears  in  a  letter  signed  by  the  seven  lawyers  and  reprinted  in  An 
Impartial  Statement,  supra  note  108,  at  24.  The  same  seven  lawyers,  however,  published  a 
much  fuller  account  of  their  position.  Reasons  in  Support  of  an  Opinion  Offered  to  the 
Public  Respecting  the  Votes  of  Otsego  County  (1 792).  This  pamphlet  elaborated: 

It  [s]hould  have  been  sufficient  to  have  resorted  to  the  right  of  suffrage  as  the 
fundamental  principle  of  our  constitution.  It  might  undoubtedly  have  been  argued  with 
great  force,  that  every  act  of  the  legislature  which  directly  or  indirectly  infringes  so 
essential  a  right,  must  be  considered  a  nullity;  that  every  act  of  the  legislature  which 
directs  the  mode  of  exercising  this  right,  must  be  liberally  expounded;  that,  for  the 
preservation  of  it,  wherever  the  positive  law  have  become  impracticable  from 
unforeseen  accidents,  the  people  are  not  to  suffer,  their  votes  are  to  be  received,  and  the 
first  offices  of  the  state  to  be  conferred  by  the  will  of  the  majority,  the  only  legitimate 
source  of  power. 

For  these  principles  we  entertain  the  highest  respect.   They  are  derived  from  an 
authority  superior  to  any  in  our  books  of  reports— the  authority  of  the  constitution. 
Id.  at  4  (emphases  in  original). 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  43 


only  the  argument  that  Smith's  defective  status  as  sheriff  was  enough  to  toss  out 
the  ballots  (and  did  not  raise  the  underlying  facts  surrounding  Van  Rensselaer's 
impropriety).  "A  law  quibble"  is  what  the  Federalists  called  the  Clintonian 
position.114 

D.  The  Great  Debate  Between  Strict  and  Lenient  Enforcement 

From  an  analysis  of  the  opinions  that  Burr  and  King  delivered  to  the 
canvassing  committee,  it  is  easy  to  see  that  each  side  quickly  staked  out  opposing 
positions  on  what  would  become  the  basic  jurisprudential  debate  in  vote-counting 
disputes  throughout  the  history  of  election  law  in  the  United  States.  The  Clinton 
team  took  the  view  that  the  New  York  statute  must  be  enforced  strictly  in  order 
to  protect  the  integrity  of  the  electoral  process.  The  Jay  team  countered  that  the 
election  statute  should  be  enforced  leniently  to  safeguard  the  right  to  vote. 

One  can  see  this  great  jurisprudential  debate  arising  in  1792  even  more 
clearly  if  one  examines  not  just  the  opinions  of  Burr  and  King,  but  also  other 
especially  lucid  expressions  of  the  argument  from  each  side.  On  Clinton's  side, 
there  was  the  opinion  of  Edmund  Randolph,  the  first  Attorney  General  of  the 
United  States.  He  made  Burr's  integrity  point  much  more  forcefully: 

The  very  sacredness  of  the  right  of  suffrage  exacts  a  degree  of  rigor,  in 
insisting  on  those  rules  which  are  designed  to  be  the  outworks  of  its 
defence.  In  proportion  to  its  magnitude,  is  it  in  the  hazard  of  being 
abused,  since  the  temptation  is  more  violent.  With  this  belief  the 
legislature  called  upon  the  sheriff  officially  to  be  the  fiduciary  of  the 
ballots.  Through  this  pure  channel,  delineated  by  law,  ought  they, 
therefore,  to  come — Otherwise,  subtilty  [sic]  and  refinement  may,  by 
degrees,  reduce  this  security  against  fraud  to  a  mere  nullity.115 

Randolph,  like  Jay's  supporters,  invoked  the  right  to  vote.  Indeed,  he  called  it 
sacred.  But  he  claimed  that  its  protection  requires  the  rigorous  enforcement  of 
the  rules  for  counting  and  canvassing  these  votes,  including  the  reporting  of  local 
results  to  the  relevant  statewide  office.  Randolph  explicitly  raised  the  specter  of 
potential  "fraud"  in  this  vote-counting  process.  Like  Burr,  however,  he  did  not 
need  to  allege  specifically  that  fraud  had  occurred  in  Otsego  County.  Instead, 
Randolph  made  the  prophylactic  point  that  strict  enforcement  of  these  vote- 
counting  rules  as  a  general  practice  reduces  the  risk  of  an  election  tainted  by 
fraud. 

Now  contrast  Randolph's  forceful  defense  of  electoral  integrity  with  a  legal 
opinion  supporting  Jay's  position  written  by  John  Trumbull,  John  Adams's 
former  law  partner,  who  at  the  time  was  serving  in  Connecticut's  legislature: 

The  existence  of  all  representative  republics  is  founded  on  the  rights  of 


1 14.  See  infra  note  227.  Kent  also  used  the  phrase  "law  quibbles"  to  refer  to  the  Clintonian 
position.  See  Letter  from  James  Kent  to  Moss  Kent,  Jr.  (June  15,  1792)  (PDF  of  original 
manuscript  on  file  with  author). 

115.  An  Impartial  Statement,  supra  note  108,  at  37  (emphasis  in  original). 


44  INDIANA  LAW  REVIEW  [Vol.  44:23 


suffrage.  This  right  is  fully  established  in  the  Constitution  of  the  State 
of  New-York.  The  Legislature  have  undoubtedly  authority  to  pass  laws 
to  guard  this  right,  but  not  to  destroy  it;  to  regulate,  but  not  to  prevent  the 
exercise  of  it;  to  point  out  the  proper  mode  in  which  returns  shall  be 
made;  but  not  to  devise  modes  that  may  be  impracticable. 
Had  the  Legislature  directly  enacted  that  the  votes  of  Otsego  [and  the 
other  two]  Counties  should  not  be  canvassed,  every  person  would 
consider  this  act  unconstitutional  and  void. 

What  the  Legislature  cannot  do  by  direct  statute,  they  certainly  cannot  do 
by  construction  and  implication. 

If  it  therefore  becomes  impossible  in  any  case,  that  the  statute  relative  to 
the  return  of  ballots  should  literally  be  complied  with,  I  should  consider 
the  law  in  that  instance  void;  and  am  of  the  opinion  that  in  such  case  all 
votes  fairly  given  and  honestly  returned,  ought  to  be  canvassed;  for  the 
rights  of  the  free  electors  ought  always  to  be  preferred  to  the  mere  forms 
of  law.116 

Trumbull  went  on  to  argue,  "Had  the  Sheriff  of  any  County  died  before  the  day 
of  the  Election,  and  no  new  Sheriff  be  appointed  before  the  day  of  return,  in 
which  case  the  County  would  clearly  be  without  a  Sheriff,  I  should  consider  a 
return  by  the  [poll]  Inspectors  as  valid."117 

John  Trumbull  said  that  the  Otsego  ballots  should  be  considered  in  the  same 
category;  therefore,  the  expiration  of  Smith's  commission  should  not  interfere 
with  their  being  counted.118  What  is  particularly  striking  about  Trumbull's 
argument  is  that  he  considered  the  fundamental  right  to  vote  not  merely  an 
abstract  philosophical  idea,  but  a  constitutional  requirement  that  is  enforceable 
as  constitutional  law  which  supersedes  and  voids  contrary  statutory  law  (in  the 
way  that  Marbury  v.  Madison  would  articulate  a  decade  later).119  Furthermore, 
Trumbull  considered  the  constitutional  status  of  the  right  to  vote  as  requiring 
flexible  enforcement  of  statutory  rules  regarding  the  voting  process  when 
flexibility  is  necessary  to  secure  the  underlying  fundamental  constitutional  right. 
Thus,  from  the  same  basic  right  to  vote  in  a  constitutional  republic,  Trumbull 


1 1 6.  Trumbull's  statement  is  contained  in  a  Federalist  pamphlet  prepared  to  counter  the  one 
orchestrated  by  Burr.  This  Federalist  counter-pamphlet  was  somewhat  ironically  entitled  An 
Appendix  to  the  Impartial  Statement  of  the  Controversy  Respecting  the  Decision  of  the 
Late  Committee  of  Canvassers  (1792).  This  passage  from  Trumbull  is  on  page  12  of  the 
pamphlet. 

1 1 7.  Id.  The  separate  pamphlet  of  the  seven  New  York  lawyers  made  a  similar  point:  "If  the 
sheriff  should  die,  or  refuse  to  receive  the  ballots,  the  people . . .  ought  not  to  be  without  a  remedy." 
Reasons  in  Support,  supra  note  1 13,  at  5. 

118.  Id.  at  13. 

119.  See  Marbury  v.  Madison,  5  U.S.  137  (1803).  This  same  point  can  be  made  about  the 
statement  of  the  seven  New  York  lawyers,  who  were  emphatic  in  saying  that  "the  right  of  suffrage" 
comes  from  the  constitution  and  thus  supersedes  any  contrary  statutory  law.  See  REASONS  IN 
Support,  supra  note  1 13,  at  4. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  45 


reasoned  to  exactly  the  opposite  conclusion  from  Randolph  regarding  strict  versus 
lenient  enforcement  of  the  statutory  rule  on  delivery  of  ballots  from  county  to 
secretary  of  state. 

The  debate  between  Randolph  and  Trumbull  did  not  concern  facts  on  the 
ground  in  Otsego  County  or  even  the  details  about  the  nature  of  the  particular 
election  statute.  Instead,  their  debate  was  much  more  fundamental.  It  was  simply 
whether,  as  a  matter  of  general  principle,  it  is  better  to  protect  the  right  of  free 
citizens  to  participate  in  electoral  democracy  by  strict  or  lenient  enforcement  of 
statutes  that  regulate  the  counting  and  canvassing  of  ballots. 

This  elemental  debate  between  Randolph  and  Trumbull  is  the  same  as  the  one 
that  occurred  between  Bush  and  Gore  in  2000  and  between  the  candidates  in 
Minnesota's  2008  U.S.  Senate  election — as  well  as  any  number  of  other  examples 
throughout  U.S.  history.120  Bush's  team,  of  course,  was  the  one  to  argue  for  strict 
enforcement  in  2000.  For  example,  the  Bush  team  argued  that  "hanging  chads" 
should  not  count  when  the  rules  required  voters  to  remove  the  chads  completely. 
Conversely,  Gore's  team  called  for  the  counting  of  these  hanging  chads  in  order 
to  protect  the  voters  from  disenfranchisement.  In  the  lawsuit  over  Minnesota's 
2008  U.S.  Senate  election,  it  was  Franken  who  argued  for  strict  enforcement  of 
the  statutes  concerning  the  submission  of  absentee  ballots,  whereas  Coleman 
urged  lenient  enforcement  and  disregarding  of  "mere  technicalities"  so  as  to  avoid 
the  disenfranchisement  of  well-intentioned  and  otherwise  eligible  absentee 
voters.121 

Thus,  the  terrain  on  which  this  basic  jurisprudential  battle  is  fought  changes 
from  one  election  to  another.  In  2000,  it  was  chads  on  punch-card  ballots.  In 
2008,  it  was  information  that  voters  were  required  to  fill  out  on  the  outer 
envelopes  when  submitting  absentee  ballots.122  And  in  1792,  it  was  the  rules  for 
transmitting  ballots  from  each  county  to  the  secretary  of  state.  In  each  instance, 
the  circumstances  are  somewhat  different  with  potential  policy  implications.  In 
the  case  of  the  hanging  chads,  the  voters  were  arguably  in  a  position  to  protect 
themselves,  as  Justice  O'Connor  observed  at  the  oral  argument  in  Bush  v.  Gore.123 


120.  In  2010,  this  same  basic  debate  is  playing  out  again  in  Alaska  in  the  dispute  over 
misspelled  write-in  ballots  for  Lisa  Murkowski.  Her  opponent,  Joe  Miller,  advocates  strict 
enforcement  of  the  state  statute  that  requires  voters  to  complete  write-in  names  as  they  appear  in 
the  declaration  of  candidacy.  Murkowski,  conversely,  seeks  a  more  lenient  implementation  of  the 
statutory  rule  in  order  to  avoid  disenfranchising  voters  who  undoubtedly  intended  to  cast  their  ballot 
for  her.  See  Kim  Murphy,  Alaska  Senate  Race  Could  Hinge  on  a  Legal  Wrangle,  L.A.  TIMES  (Nov. 
11,  2010),  http://www.latimes.com/news/nationworld/nation/la-na-alaska-senate- 
20101 112,0,1891443.story. 

121.  Edward  B.  Foley,  How  Fair  Can  Be  Faster — and  Other  Lessons  of  Coleman  v.  Franken 
(2010)  (unpublished  manuscript)  (on  file  with  author). 

1 22.  In  the  latest  incarnation  of  this  basic  dispute,  unfolding  as  this  article  is  being  completed, 
the  particular  subject  matter  is  the  spelling  of  a  write-in  candidate's  name.  See  Becky  Bohrer, 
Murkowski  Camp  Cries  Foul  in  Alaska  Ballot  Count,  ASSOCIATED  PRESS  (Nov.  11,  2010), 
http://www.chron.com/disp/story.mpl/ap/nation/7290902.html. 

123.  Transcript  of  Oral  Argument  at  57,  Bush  v.  Gore,  531  U.S.  98  (2000)  (No.  00-949). 


46  INDIANA  LAW  REVIEW  [Vol.  44:23 


In  the  2008  dispute  over  Minnesota's  absentee  ballots,  the  situation  was  mixed 
and  complicated.  In  some  instances,  the  voters  themselves  could  have  filled  out 
the  envelopes  properly,  but  other  voters  received  the  wrong  envelopes  from  their 
local  election  officials  and  thus  could  not  help  but  submit  their  absentee  ballots 
incorrectly.124  In  1792,  none  of  the  voters  in  Otsego  County  were  in  a  position 
to  protect  themselves  from  the  fact  that  Smith  was  no  longer  the  legal  sheriff. 

But  the  relative  "culpability"  of  the  voters  is  only  one  factor  to  consider  in  the 
debate  between  strict  and  lenient  enforcement  of  vote-counting  statutes.  For 
example,  ballot  boxes  with  broken  or  missing  seals  might  be  entirely  the  fault  of 
election  officials  and  not  innocent  voters.  And  yet  one  might  take  the  position  (as 
some  courts  historically  have)  that  the  ballots  in  these  tampered  boxed  cannot  be 
counted,  even  though  discarding  them  obviously  disenfranchises  the  innocent 
voters  in  that  particular  election.  It  is  a  question  of  balancing  the  risk  to  the 
integrity  of  the  election  with  the  right  to  vote.  In  some  contexts,  the  balance 
might  weigh  in  favor  of  strict  enforcement  of  the  relevant  election  statute — as  the 
Clintonians  were  essentially  arguing  in  1792. 

Despite  the  difference  in  particular  contexts  between  1792  and  2000  (or 
2008),  it  is  remarkable  how  little  the  jurisprudential  debate  has  changed  over  two 
centuries.125  One  can  understand  that  when  this  debate  emerged  in  1 792,  it  might 
have  been  conducted  without  nuance  or  special  sensitivity  to  the  particular 
conditions  relevant  to  weighing  the  balance  between  integrity-protection  and 
disenfranchisement-avoidance.  After  all,  in  1792  the  jurisprudence  of  American 
election  law  was  in  its  earliest  stage  of  development.  But  by  the  time  the  same 
debate  occurred  in  the  twenty-first  century,  considerable  sophistication  and 
refinement  should  have  been  expected,  such  that  the  discussion  of  whether  to 
count  hanging  chads  would  be  considered  distinguishable  from  the  problem  of 
flaws  in  ballot-box  delivery.  Yet  there  was  surprisingly  little  advancement  in  the 
argument  between  strict  and  lenient  enforcement  from  1792  to  2000  (or  2008). 
What  the  lawyers  for  Bush  and  Gore  said  about  protecting  the  integrity  of  the 
electoral  process  or  avoiding  the  disenfranchisement  of  voters  was  the  same  as 
what  Randolph  and  Trumbull  said  in  1792.126  The  twenty- first  century  debate 
between  strict  and  lenient  enforcement  remains  largely  generic  rather  than 
context-specific  and  seems  to  be  stuck  in  essentially  the  same  basic  place  that  it 
was  when  the  debate  began  in  1792.  The  fact  that  our  nation's  legal  system  has 
not  been  able  to  advance  the  debate  beyond  where  it  began,  over  two  hundred 
years  ago,  is  itself  significant.127 


1 24.  See  Foley,  supra  note  121.  In  the  Alaska  write-in  situation,  by  contrast,  the  voters  could 
have  protected  themselves  by  spelling  "Murkowski"  correctly  (a  task  arguably  easier  than  even 
dislodging  chads  from  punch-card  ballots  when  the  machines  were  already  clogged  with  chads  from 
previous  ballots). 

1 25.  For  an  effort  to  move  the  debate  forward,  see  Richard  L.  Hasen,  The  Democracy  Canon, 
62  Stan.  L.  Rev.  69  (2009). 

126.  For  a  summary  of  the  arguments  in  2000,  see  TOOBIN,  supra  note  74. 

127.  In  recognition  of  this  problem,  the  American  Law  Institute  has  recently  authorized  a 
project  to  examine  whether  improvement  might  be  made  in  this  regard.  The  author  of  this  article 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  47 


E.   The  Canvassing  Committee 's  Decision 

The  canvassing  committee  voted  7-4  in  favor  of  excluding  the  Otsego  ballots 
and  thus  certified  Clinton  as  the  winner.128  (One  member  of  the  committee 
inexplicably  was  absent.)  This  vote,  as  Troup  had  feared,  was  essentially  along 
party  lines.  The  Federalist  position  picked  up  one  more  vote  than  the  "three 
friends  to  Jay"  that  Kent  had  identified.129  Interestingly,  the  fourth  pro- Jay  vote 
came  from  state  senator  Joshua  Sands,  who  would  later  run  for  Congress  as  a 
Federalist.130  Therefore,  if  Sands  actually  was  more  Federalist  than  Clintonian 
when  he  cast  his  canvassing  committee  vote,  the  7-4  split  could  be  viewed  as 
100%  partisan  in  its  division.  Even  so,  the  five  "devoted  Clintonians"  from  the 
assembly,  together  with  their  two  faithful  partisans  from  the  Senate,  controlled 
the  canvassing  committee's  outcome. 

The  committee's  majority  and  dissenters  issued  written  opinions  in  support 
of  their  respective  positions.131  Not  surprisingly,  these  opinions  echoed  the 
arguments  made  to  the  committee  by  each  side's  lawyers.  Like  judges  embracing 
arguments  of  opposing  briefs,  the  committee's  majority  adopted  the  "integrity" 
position  advocated  by  Burr  and  Randolph,  whereas  the  dissenters  relied  on  the 
same  "right  to  vote"  argument  as  King  and  Trumbull. 

The  majority  explained  its  position  as  to  why  the  statute  regarding  delivery 
of  the  ballots  to  the  secretary  of  state  by  a  county  sheriff  must  be  strictly  enforced 
by  refusing  to  count  ballots  transmitted  in  violation  of  this  statutory  requirement. 
Otherwise,  "a  provision  intended  as  security  against  impositions  would  be  an 
engine  to  promote  them."132  They  could  not  accept  the  contrary  proposition, 
which  they  believed  would  obligate  them  to  "canvass  and  estimate  votes, 
however  fraudulently  obtained"  by  any  person  claiming  to  be  sheriff  "though,  it 
[s]hould  be  evident  to  them,  at  the  [s]ame  time,  that  he  was  not  the  sheriff  "m 

In  raising  the  possibility  of  fraud,  the  majority  opinion — in  sharp  contrast  to 
the  submissions  by  Burr  and  Randolph  on  behalf  of  Clinton — explicitly  invoked 
the  ugly  facts  in  Otsego  County  surrounding  the  delay  of  Gilbert's  commission 
to  replace  Smith  as  sheriff.  Stating  that  they  had  learned  the  relevant  facts  from 
the  secretary  of  state,  the  majority  emphasized  that  Smith  had  stored  the  ballot 


has  agreed  to  serve  as  the  reporter  for  this  new  ALI  project. 

128.  Taylor,  supra  note  27,  at  1 80. 

129.  See  Kent,  supra  note  62.  The  7-4  vote  can  be  seen  from  the  original  opinions  issued  by 
the  canvassers.  See  also  Young,  supra  note  27,  at  309-10  (describing  the  7-4  vote  and  citing  the 
original  documents). 

1 30.  The  Papers  of  Alexander  Hamilton,  Volume  XXV:  July  1  800-April  1 802,  at  6 1 1 
n.l  (Harold  C.  Syrett  ed.,  1977). 

131.  See  An  Impartial  Statement,  supra  note  108,  at  1 1-12  (official  order  certifying  the 
election  for  Clinton),  12-14  (dissenting  opinions  of  Jones  et  al.),  14-15  (dissent  of  Joshua  Sands), 
15-20  (majority  opinion). 

132.  Id.  at  17. 

133.  Id.  (emphasis  in  original). 


48  INDIANA  LAW  REVIEW  [Vol.  44:23 


box  in  Cooper's  house  at  the  same  time  Cooper  was  holding  onto  Gilbert's 
commission.  "It  is  also  to  be  fairly  inferred,"  the  majority  reasoned,  "that  had 
proper  measures  been  taken  to  give  notice  to  Mr.  Gilbert,  he  would  forthwith 
have  qualified  [and]  undertaken  the  execution  of  the  office."134  Given  the  risk  of 
"mischiefs"  (ballot  tampering  by  Smith  and  Copper),  the  majority  asserted,  "[i]t 
did  not  seem  possible  ...  by  any  principle  of  law,  by  any  latitude  of  construction, 
to  canvass  and  estimate  the  ballots  contained  in  the  box  thus  circumstanced."135 
Thus,  in  explaining  its  view  as  to  why  protecting  the  integrity  of  the  electoral 
process  required  strict  enforcement  of  the  statute,  the  majority  opinion  made  the 
point  concretely,  whereas  Burr  and  Randolph  had  not. 

The  majority  again  invoked  the  factual  circumstances  of  the  Otsego  ballots 
in  summing  up  its  conclusion  not  to  count  them: 

These  facts  with  other  suggestions  of  unfair  practices,  rendered  the 
conduct  of  the  Otsego  election  justly  liable  to  suspicion;  and  the 
committee  were  constrained  to  conclude,  that  the  usurpation  of  authority, 
by  Richard  R.  Smith,  was  wanton  and  unnecessary,  and  proceeded  from 
no  motive  connected  with  the  preservation  of  the  rights  of  the  people,  or 
the  freedom  and  purity  of  elections  .ue 

The  majority  finished  by  declaring  that  "freedom  of  elections,  and  the  security 
against  frauds"  were  "general  principles"  that  applied  to  this  situation, 
"compelling]  them  to  reject  the  votes."137  Thus,  members  of  the  committee 
majority,  were  entirely  aware  that  they  were  relying  on  what  they  saw  as 
fundamental  principles  in  reaching  this  first  important  decision,  thus  establishing 
the  first  major  American  precedent  concerning  the  resolution  of  a  disputed 
statewide  election. 

The  dissenters  on  the  canvassing  committee  also  relied  on  their  perception  of 
first  principles.  There  were  two  dissenting  opinions — one  by  the  "three  friends 
to  Jay"  identified  by  Kent  and  the  other  by  Joshua  Sands.138  Both  dissents  made 
the  same  substantive  point,  ultimately  invoking,  as  King  and  Trumbull  did,  the 
fundamental  right  to  vote  as  the  reason  for  lenient  enforcement  of  statutory  rules 
regulating  the  counting  of  ballots.  The  main  dissent  argued,  "in  all  doubtful 
cases,  the  committee  ought,  in  our  opinion,  to  decide  in  favour  of  votes  given  by 
citizens,  lest  by  too  nice  and  critical  an  exposition  of  the  law,  the  rights  of 
suffrage  be  rendered  nugatory."139  Similarly,  Sands  found  that  "in  all  doubtful 
cases,  I  conceive  the  committee  ought  to  decide  in  favour  of  the  votes  given  by 
the  citizens."140 


134.  Id.  at  19. 

135.  Id.  (emphasis  in  original). 

136.  Id.  (emphasis  in  original). 

137.  Id.  at  20. 

138.  Perhaps  the  fact  that  Sands  wrote  separately  indicates  that  he  had  not  yet  entirely  aligned 
himself  with  the  Federalist  party. 

139.  Randolph,  supra  note  108,  at  13. 

140.  Id.  at  15. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  49 


The  two  dissents  also  argued  that  Smith  could  be  considered  at  least  a  de 
facto,  if  not  de  jure,  sheriff  for  the  purpose  of  the  statutory  rule  that  the  sheriff 
transmit  the  ballots  to  the  secretary  of  state.  Otherwise,  as  the  main  dissent  put 
it,  the  county  would  have  been  without  any  person  to  act  in  that  office,  and  that 
was  a  proposition  "too  mischievous  to  be  established  by  a  doubtful  construction 
of  law."141  Neither  dissent,  however,  addressed  any  of  the  distasteful  facts 
surrounding  the  delay  of  Gilbert's  commission  or  the  storing  of  the  ballots  at 
Cooper's  house,  upon  which  the  majority  opinion  so  emphatically  relied  in 
suggesting  the  possibility  of  fraud.  Rather,  the  dissents  were  content  to  repeat 
that  at  most  it  was  a  "doubtful  case,"  implying  that  neither  the  majority  nor 
anyone  else  had  come  forth  with  any  direct  evidence  of  ballot  tampering  by  the 
Federalists  in  Otsego  County.142  Classifying  it  as  a  "doubtful  case,"  the  dissents 
then  fell  back  upon  the  basic  principle  that  the  enforcement  of  election  laws 
should  err  on  the  side  of  counting,  rather  than  discarding,  the  ballots  of  eligible 
voters.143 

In  hindsight,  it  seems  fair  to  say  that  there  were  powerful  arguments  on  both 
sides  of  the  divided  canvassing  committee.  Jabez  Hammond,  an  early  and 
influential  historian  in  New  York,  reflected  on  the  committee's  decision  sixty 
years  after  it  occurred.  Hammond  himself  was  a  Democrat  who  served  both  as 
a  state  judge  and  member  of  Congress.144  Still,  known  to  be  scrupulously 
nonpartisan  in  his  historical  judgments,  Hammond  saw  the  dissenters  on  the 
canvassing  committee  as  having  the  better  of  the  argument: 

To  my  mind,  the  reasons  assigned  by  Mr.  King  and  by  the  minority  of 
the  committee  in  their  protest,  are  strong  and  convincing.  .  .  .  The  right 
of  suffrage  is  a  sacred  and  invaluable  right  which  belongs  to  the  elector, 
and  of  which  he  cannot  be  divested. . . .  And  he  ought  not  and  cannot  be 
deprived  of  the  effect  of  it,  either  by  the  non-feasance  or  misfeasance  of 
the  agent  to  whom  the  law  commits  the  custody  and  care  of  his  ballot.145 

Hammond's  history,  however,  does  not  directly  address  the  concern  that  fraud 
might  have  tainted  the  Otsego  ballots.  Subsequent  historians  have  been  more 
ambivalent  in  their  assessment.  Although  Alan  Taylor,  in  his  prizewinning 
account  of  Cooperstown,  reached  the  conclusion  that  the  Federalists  probably  did 
not  manipulate  the  counting  of  votes  from  Otsego,  he  acknowledged  that  their 
unsavory  actions  raised  a  legitimate  concern  that  they  might  have.146  Likewise, 


141.  Mat  13. 

142.  Id.  at  13-15. 

143.  Id. 

144.  He  also  happened  to  live  in  Otsego  County,  though  well  after  1792.  Born  in 
Massachusetts,  and  only  fourteen  at  the  time  of  the  disputed  Clinton-Jay  election,  Hammond 
practiced  law  in  Vermont  before  he  eventually  settled  in  New  York.  See  Hammond,  Jabez  Delno 
[sic],  Biographical  directory  of  the  U.S.  Congress,  http://bioguide.congress.gov/scripts/ 
biodisplay.pl?index=H000127  (last  visited  Nov.  12,  2010). 

145.  Hammond,  supra  note  27,  at  68. 

146.  Taylor,  supra  note  27,  at  179. 


50  INDIANA  LAW  REVIEW  [Vol.  44:23 


Alfred  Young  has  observed  that  the  Republicans  had  a  valid  point  insofar  as  they 
believed  that  "elections  laws  had  to  be  strictly  observed  lest  precedents  dangerous 
to  free  elections  be  established."147 

Even  if  there  were  meritorious  arguments  on  both  sides  of  the  case,  one  can 
never  know  the  extent  to  which  the  members  of  the  canvassing  committee  were 
motivated  by  the  merits  of  the  position  they  took  or  by  the  simple  fact  that  taking 
that  position  favored  the  candidate  whom  they  wanted  to  win  for  partisan 
reasons.148  It  is  the  same  problem  that  plagued  the  5-4  Supreme  Court  decision 
in  Bush  v.  Gore.  One  could  claim  that  all  the  Justices,  like  all  the  canvassing 
committee  members,  were  motivated  by  a  sincere  effort  to  reach  the  right 
decision  as  a  matter  of  law,  without  regard  to  partisan  consideration.  But  the 
coincidence  between  the  Justices'  respective  views  of  the  law  and  their  respective 
partisan  leanings  inevitably  made  the  5-4  split  suspicious  in  2000,  just  as  the  7-4 
split  in  1792  was  suspect  for  equivalent  reasons. 

There  would  have  been  a  way  to  avoid  this  problem  in  1 792,  as  James  Kent 
understood.  If  the  canvassing  committee  had  been  constructed  to  be  equally 
balanced  between  the  two  sides  of  the  controversy,  then  its  decision  would  have 
been  nonpartisan  whichever  way  it  ultimately  fell.  A  genuinely  neutral  and 
impartial  decisionmaker  could  embrace  the  merits  of  either  the  "integrity"  or 
"right  to  vote"  position  without  the  decision  being  inevitably  tainted  with  the 
suspicion  that  it  was  the  product  of  bias  rather  than  merit.  But  New  York  in  1 792 
did  not  have  this  kind  of  evenhanded  and  impartial  tribunal  for  its  disputed 
gubernatorial  election,  and  neither  would  the  United  States  in  2000  for  its 
presidential  election. 

III.  The  Political  Maelstrom  that  Followed 

After  the  canvassing  committee  announced  its  decision,  there  was  great 
public  agitation,  including  threats  of  violence.  This  talk  of  the  "bayonet,"  which 
is  how  Alexander  Hamilton  described  the  commotion,149  was  in  keeping  with  the 
character  of  this  generation  of  revolutionaries  who  were  not  afraid  of  extralegal 
means  to  secure  their  fundamental  right  to  a  representative  democracy.150 


147.  Young,  supra  note  27,  at  305. 

148.  One  historian  of  New  York  politics,  writing  in  1906,  was  particularly  harsh  in  attributing 
partisanship  as  the  motivating  force  behind  the  canvassing  committee's  decision:  "This  was  the 
first  vicious  partisan  precedent  established  in  the  Empire  State.  It  has  had  many  successors . . .  but 
none  bolder  and  more  harmful,  or  ruder  and  more  outrageously  wrong."  DeAlva  Stanwood 
Alexander,  1  A  Political  History  of  the  State  of  New  York  56  (Ira  J.  Friedman,  Inc.  1 969) 
(1909).  This  historian  saw  nothing  of  consequence  in  Cooper's  conduct  in  Otsego:  "No  ballots 
were  missing,  no  seals  were  broken,  nor  had  their  delivery  been  delayed  for  a  moment."  Id.  at  57. 
Alexander,  however,  is  hardly  the  only  historian  to  take  Jay's  side  of  the  controversy.  See,  e.g., 
Sean  Wilentz,  The  Rise  of  American  Democracy:  Jefferson  to  Lincoln  52  (2005) 
(characterizing  Clinton's  victory  over  Jay  as  resulting  "only  because  of  flagrant  voter  fraud"). 

149.  See  infra  note  172  and  accompanying  text. 

1 50.  The  Declaration  of  Independence,  of  course,  most  famously  asserts  the  "right  of  the 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  51 


Moreover,  it  was  not  just  the  revolt  against  England  that  was  revolutionary.  The 
Constitution  itself  was  an  unauthorized  break  from  the  legal  regime  of  the 
Articles  of  Confederation.  As  such,  the  great  question  for  Jay  and  his  supporters 
was  whether  to  take  to  the  streets  and  demand  a  new  constitutional  convention  for 
the  state  of  New  York  that  would  undo  what  they  viewed  as  the  partisan  atrocity 
committed  by  the  canvassing  committee.151 

A.  Public  Agitation  Against  the  Canvassing  Committee 's  Decision 

As  upset  as  Jay's  supporters  were  about  the  canvassing  committee's  decision 
itself,  they  were  perhaps  even  more  enraged  by  the  fact  that  the  committee  burned 
the  Otsego  ballots  as  soon  as  it  decided  not  to  count  them.  To  be  sure,  as  we  have 
seen,  the  committee  was  entirely  within  its  rights  under  the  relevant  statute  to  do 
so.  Still,  the  Federalists  were  outraged  that  they  could  never  prove  exactly  how 
many  votes  Jay  would  have  won  had  he  not  been  robbed  of  what  they  viewed  as 
his  rightful  votes  from  Otsego  County.152  One  Jay  supporter  wrote  on  the  day  of 
the  canvassing  committee's  decision,  "We  have  as  it  were  two  chief 
magistrates — one,  the  governor,  by  the  voice  of  God,  and  the  people,  and  another 
the  governor  of  Mr.  Burr  and  the  canvassers."153  This  author  added  that  "[the 
canvassers]  ought  to  be  impeached."154  Also  on  the  day  of  the  canvassing 
committee's  decision,  Jay's  wife  wrote  to  him,  "There  is  such  a  ferment  in  the 


People  to  alter  or  abolish"  government,  through  the  use  of  force  if  necessary,  if  government  has 
wrongfully  "become  destructive"  of  the  "unalienable  Rights  to  Life,  Liberty,  and  the  pursuit  of 
Happiness." 

151.  It  is  noteworthy  that  Jay  and  his  supporters  did  not  attempt  to  go  to  court  to  undo  the 
determination  of  the  canvassing  committee.  To  be  sure,  that  avenue  seemed  unequivocally  closed 
by  the  statute,  which  explicitly  said  that  the  canvassing  committee's  "judgment  and  determination 
shall  in  all  cases  be  binding  and  conclusive."  1787  N.Y.  Laws  34.  But  today,  were  there  a  similar 
statute  that  purported  to  block  judicial  review  of  the  vote-counting  process,  lawyers  nonetheless 
would  seriously  consider  possible  arguments  that  might  offer  an  end-run  around  even  the  most 
clear-cut  statutory  preclusion.  As  we  know  from  the  current  habeas  cases  involving  the 
Guantanamo  detainees,  if  a  question  of  constitutional  rights  is  truly  fundamental,  there  is  almost 
always  a  way  for  a  court  to  find  some  basis  for  jurisdiction  to  safeguard  those  fundamental  rights. 
See,  e.g.,  Boumediene  v.  Bush,  553  U.S.  723  (2008)  (invalidating  Congress's  suspension  of  habeas 
corpus).  To  be  sure,  this  is  not  to  suggest  that  the  integrity  of  the  result  of  a  gubernatorial  (or  even 
presidential)  election  is  as  important  as  preventing  torture  and  indefinite  detention  in  solitary 
confinement.  Judgments  reasonably  may  vary  as  to  the  hierarchy  of  "fundamental ity"  among 
various  fundamental  constitutional  rights.  Nevertheless,  today's  election  lawyers  certainly  would 
explore  the  possibility  of  pursuing  so-called  "extraordinary  writs"  as  a  means  of  judicial  relief 
before  concluding  that  it  would  be  a  waste  of  time  and  effort  to  do  so.  From  what  one  can  discern 
from  the  historical  record  regarding  the  election  of  1792,  apart  from  a  tentative  suggestion  in  a 
single  letter,  supra  note  54,  Jay  and  his  supporters  never  considered  pursuing  a  judicial  option. 

152.  See,  e.g.,  N.Y.  Daily  Adver.,  infra  note  244  (Kent's  speech). 

153.  Berkin,  supra  note  27,  at  24  (emphasis  in  original). 

154.  Id. 


52  INDIANA  LAW  REVIEW  [Vol.  44:23 


City  that  it  is  difficult  to  say  what  will  be  the  consequences."155  Hammond,  in  his 
early  history  of  New  York  politics,  reflected  that  "the  state  seemed  menaced  with 
the  ascendancy  of  anarchy  and  utter  confusion."156 

There  were  also  marches,  including  those  by  local  militia  supporting  Clinton. 
Cooper  "hinted  at  armed  rebellion,"157  declaring  that  "a  Face  of  Flint  ought  to  be 
set  against  the  insult."158  Ebenezer  Foote,  another  Federalist,  argued  even  more 
strongly  that  "Clinton  must  quit  the  Chair,  or  blood  must  and  will  be  shed — and 
if  no  innocent  blood  was  to  flow,  I  would  not  care  how  soon  it  began  to  run."159 

Some  blood  did  flow.  There  were  fist  fights  and  club  battles  between  Jay  and 
Clinton  supporters  at  local  taverns.  At  one  skirmish,  pistol  shots  were  exchanged 
between  two  partisans.  Fortunately,  both  shots  missed.  One  of  the  canvassers 
challenged  Van  Rensselaer  to  a  duel  after  the  candidate  spoke  some  hot  words. 
Both  showed  up  at  the  appointed  hour,  but  Van  Rensselaer  offered  a  last  minute 
apology,  which  was  accepted.160 

Much  of  the  popular  foment  was  directed  towards  political  action  that  might 
undo  the  decision.  Petitions  were  signed  to  convince  the  legislature  to  overturn 
the  canvassing  committee,161  even  though  the  statute  gave  the  legislature  no  more 
right  to  do  that  than  a  court.  One  Federalist  writer  wrote,  "I  sincerely  hope 
violent  measures  will  not  become  necessary,"  but  he  warned  that  "the 
independence  of  this  country  has  been  purchased  at  too  dear  a  price"  to  let  the 
decision  stand.162  There  was  also  a  Federalist  plan  to  ask  the  legislature  to  call  a 
convention  for  the  purpose  of  overturning  the  canvassing  committee,  in 
recognition  that  the  legislature  lacked  the  authority  itself. 

Frank  Monaghan,  the  historian  writing  in  the  early  twentieth  century,  quotes 
a  proclamation  written  at  the  house  of  a  shoemaker  in  Herkimer  County. 
Monaghan  characterizes  this  proclamation  as  "the  most  remarkable  document  of 
this  campaign  of  protest"  because  of  its  explicit  invocation  of  the  Declaration  of 
Independence  as  authority  for  repudiating  the  canvassing  committee's  decision.163 
The  body's  decision  was  unlawful,  the  proclamation  reasoned,  because  it 
repudiated  the  fundamental  will  of  the  majority  of  the  people,  who  in  their  self- 
preservation  were  entitled  to  take  "every  laudable  exertion  within  the  verge  of  our 
strength  and  ability"  to  remove  Clinton  from  office.164  Thus,  average  citizens  had 
no  difficulty  relying  on  the  "first  principles"  underlying  the  founding  of  the 
Republic  itself  as  sufficient  justification  for  measures  to  remedy  what  they  saw 
as  the  canvassing  committee's  usurpation  of  the  right  to  self-government  that  they 


155.  Taylor,  supra  note  27,  at  1 80. 

1 56.  Hammond,  supra  note  27,  at  70. 

157.  Taylor,  supra  note  27,  at  1 8 1 . 

158.  Id. 

1 59.  Young,  supra  note  27,  at  3 1 1 . 

1 60.  Taylor,  supra  note  27,  at  1 8 1  -82. 

161.  Young,  supra  note  27,  at  3 1 0. 

162.  Berkin,  supra  note  27,  at  24. 

1 63.  Monaghan,  supra  note  78,  at  340. 

164.  Id.  at  336. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  53 


had  fought  so  recently  (and  so  hard)  to  secure.165  And  while  this  particular 
proclamation  may  have  been  exemplary,  it  by  no  means  stood  alone.  Other 
voices  also  resorted  to  revolutionary  first  principles  to  defend  unrest  against  the 
theft  of  their  democracy. 

B.   The  Conduct  of  the  Losing  Candidate 

Clinton  was  inaugurated  for  his  new  term  on  July  1 ,166  The  period  between 
the  canvassing  committee's  decision  in  the  middle  of  June  and  the  end  of  July  set 
the  stage  for  the  decision  that  Jay  as  candidate,  and  the  Federalists  as  his  party, 
made  on  how  they  were  going  to  respond  to  what  they  perceived  as  the  theft  of 
Jay's  victory.  Jay,  as  Chief  Justice  of  the  United  States,  was  riding  circuit  in  New 
England  at  the  time.  He  heard  news  of  the  canvassing  decision  on  June  1 8  in 
Hartford,  Connecticut.167  Appearing  to  take  the  news  calmly,  he  wrote  to  his 
wife, 

The  reflection  that  the  majority  of  the  electors  were  for  me,  is  a  pleasing 
one;  that  injustice  has  taken  place  does  not  surprise  me  ...  .  Having 
nothing  to  reproach  myself  with  in  relation  to  this  event,  it  shall  neither 
discompose  my  temper  nor  postpone  my  sleep.  A  few  years  will  put  us 
all  in  the  dust,  and  it  will  then  be  of  more  importance  to  me  to  have 
governed  myself,  than  to  have  governed  the  State.168 

This  letter  signals  an  important  theme:  better  to  be  magnanimous  in  defeat, 
because  there  will  be  another  election  in  a  few  years  when  political  fortunes  may 
turn.  As  we  shall  see,  Alexander  Hamilton  became  a  leading  proponent  of  this 
view  among  Jay's  advisers. 

Meanwhile,  back  in  New  York,  Jay's  wife  wrote  her  husband  on  June  12: 
"King  says  he  thinks  Clinton  as  lawfully  Governor  of  Connecticut  as  of  New 
York  but  he  knows  of  no  redress."169  This  assertion  shows  the  inability  of  Jay's 
team  to  develop  a  judicial  recourse. 

On  June  15,  in  The  Daily  Advertiser,  "Gracchus"  "proposed  [that]  meetings 
of  electors  in  all  the  counties  and  committees  of  correspondence  should  be 
arranged."170  Gracchus  asserted  that  if  "the  ordinary  powers  of  legislation,  should 
prove  an  incompetent  remedy  for  rescuing  the  people  from  a  usurped  authority; 
the  same  powers  which  established  the  constitution,  must  in  the  last  resort 


165.  Id. 

1 66.  Hammond,  supra  note  27,  at  7 1 . 

167.  Monaghan,  supra  note  78,  at  336. 

1 68.  Letter  from  John  Jay  to  Sarah  Livingston  Jay,  in  William  Jay,  1  The  Life  of  John  Jay 
289(1833). 

169.  Letter  from  Sarah  Livingston  Jay  to  John  Jay  (June  12,  1792),  in  3  Correspondence 
and  Public  Papers  of  John  Jay,  supra  note  58,  at  433. 

1 70.  The  Papers  of  Alexander  Hamilton,  Volume  XI:  February- June  1 792,  at  591  n.3 
(Harold  C.  Syrett  ed.,  1966). 


54  INDIANA  LAW  REVIEW  [Vol.  44:23 


convene  for  its  preservation."171 

On  June  28,  Hamilton,  while  Secretary  of  the  Treasury,  wrote  to  King, 

I  have  not,  as  you  well  may  imagine,  been  inattentive  to  your 
political  squabble.  I  believe  you  are  right  (though  I  have  not  accurately 
examined)  but  I  am  not  without  apprehension  that  a  ferment  may  be 
raised  which  may  not  be  allayed  when  you  wish  it.  Tis  not  to  be 
forgotten  that  the  opposers  of  Clinton  are  the  real  friends  to  order  [and] 
good  Government,  and  it  will  ill  become  them  to  give  an  example  of  the 
contrary. 

Some  folks  are  talking  of  Conventions  and  the  Bayonet.  But  the  case 
will  justify  neither  a  resort  to  first  principles  nor  to  violence.  Some 
amendments  of  your  election  law  and  possibly  the  impeachment  of  some 
of  the  Canvassers  who  have  given  proofs  of  premediated  partiality  will 
be  very  well — and  it  will  answer  good  purposes  to  keep  alive  within 
proper  bounds  the  public  indignation.  But  beware  of  extremes! 

There  appear  to  be  no  definite  declared objects  of  the  movements  on 
foot  which  renders  them  the  more  Ticklish.  What  can  you  do?  What  do 
you  expect  to  effect?172 

Here  Hamilton  was  acting  in  his  role  as  a  somewhat  detached  adviser.  True  to 
character,  he  was  being  prudent  and  cautious.  He  viewed  the  Federalists  as  the 
party  of  conservatism,  and  despite  its  shared  revolutionary  heritage  with  the 
Democratic-Republicans,  he  wanted  to  distance  the  Federalists  from 
revolutionary  means,  especially  in  this  instance.  He  was  not  averse  to  a  little 
rabble-rousing  for  partisan  gain,  but  he  did  not  want  it  to  get  too  far  out  of  hand. 
Although  he  did  not  say  why,  he  did  not  believe  the  facts  regarding  the  theft  of 
Jay's  victory  warranted  the  kind  of  extreme  measures  that  some  Federalists  were 
advocating. 

As  Jay  was  traveling  back  to  New  York  City,  he  stopped  in  the  town  of 
Lansingburgh,  New  York  (a  little  north  of  Albany).  He  was  received  by  a 
committee  of  citizens  whose  public  address  in  support  of  him  expressed  their 
"sincere  regret  and  resentment  at  the  palpable  prostitution  of  those  principles  of 
virtue,  patriotism,  and  duty,  which  has  been  displayed  by  a  majority  of  the 
canvassing  committee,  in  the  wanton  violation  of  our  most  sacred  and  inestimable 
privileges,  in  arbitrarily  disfranchising  whole  towns  and  counties  of  their 
suffrages."173  They  added  that  "though  abuse  of  power  may  for  a  time  deprive 
you  and  the  citizens  of  their  right,  we  trust  the  sacred  flame  of  liberty  is  not  far 
extinguished  in  the  bosoms  of  Americans  as  tamely  to  submit  to  wear  the 


171.  Id. 

1 72.  Letter  from  Alexander  Hamilton  to  Rufus  King  (June  28, 1 792),  in  HAMILTON,  supra  note 
170,  at  588-89  (emphases  in  original).  On  this  letter,  King  notes,  "I  have  had  not  agency  in 
promoting  the  measures  adopted  respecting  the  decision  of  the  [c]anvassers.  I  have  however  felt 
the  utmost  indignation."  Id.  at  591  n.3. 

173.  Lansingburgh  Committee  to  Jay,  in  3  Jay,  supra  note  58,  at  436. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  55 


shackles  of  slavery,  without  at  least  a  struggle  to  shake  them  off."174  Thus,  by 
their  words,  these  citizens  appeared  to  be  urging  Jay  to  take  more  aggressive 
measures  to  defend  his  claim  of  victory. 
Jay,  however,  responded  cautiously: 

[E]very  event  is  to  be  regretted  that  tends  to  introduce  discord  and 
complaint.  Circumstanced  as  I  am  in  relation  to  the  one  you  mention,  I 
find  myself  restrained  by  considerations  of  delicacy  from  particular 
remarks. 

The  people  of  the  State  know  the  value  of  their  rights,  and  there  is 
reason  to  hope  that  the  efforts  of  every  virtuous  citizen  to  assert  and 
secure  them  will  be  no  less  distinguished  by  temper  and  moderation,  than 
by  constancy  and  zeal.175 

On  July  2,  Jay  passed  through  Albany,  where  another  committee  of  citizens  made 
a  similar  address: 

[A]  majority  of  the  Committee  of  Canvassers,  by  an  unwarrantable 
stretch  of  power,  rejected  the  votes  of  several  whole  Counties,  in  direct 
violation  of  law,  justice,  precedent,  and  the  most  essential  principles  of 
our  constitution — their  object,  as  it  most  glaringly  appears,  being  to 
secure  an  administration  favourable  to  their  views,  in  opposition  to  the 
voice  of  a  majority  of  the  people.176 

This  committee  was  prepared  to  exercise  restraint,  but  only  up  to  a  point: 

[W]e  shall  wait  with  a  firm  and  cool  deliberation  for  Legislative 
interposition  to  afford  or  procure  redress. . . .  [C]ould  it  possibly  happen, 
that  we  meet  with  disappointment,  the  people  must  proceed  to  determine, 
whether  a  Chief  Magistrate  is  to  be  elected  by  their  voice,  or  by  a 
Committee,  the  majority  of  whom  were  selected  and  named  by  a  party; 
and  those  who  may  be  the  cause,  must  be  answerable  for  the 
consequences  that  may  follow.177 

Jay's  reply  to  this  group  hinted  a  little  more  at  a  desire  to  find  some  recourse: 

[P]rudence  dictates  a  great  degree  of  delicacy  and  reserve;  but  there  are 
no  considerations  which  ought  to  restrain  me  from  expressing  my  ardent 
wishes  that  the  important  question  you  mention  may  be  brought  to  a 
decision  which  all  that  mature  reflection  as  well  as  manly  constancy 
which  its  connection  with  the  rights  of  freemen  demands;  with  all  that 
temper  which  self-respect  requires;  and  with  all  that  regard  to 
conciliation,  benevolence,  and  good  neighbourhood  which  patriotism 


174.  Id. 

175.  Mat 437. 

176.  Mat 438. 

177.  Mat 439. 


56  INDIANA  LAW  REVIEW  [Vol.  44:23 


prescribes 


178 


This  speech  indicates  that  he  was  hedging  just  enough  in  case  sufficient  support 
developed  for  more  drastic  measures  to  install  him  in  office.  Still,  he  wished  to 
remain  noncommittal. 

Jay  arrived  home  in  New  York  City  on  July  10,  where  he  was  greeted  by 
much  larger  crowds  with  sentiments  similar  to  those  he  received  upstate  in 
Lansingburgh  and  Albany.179  His  local  welcoming  committee  declared, 

This  wanton  and  daring  attack  upon  the  invaluable  rights  of  suffrage  has 
excited  a  serious  alarm  amongst  the  electors  of  the  State,  and  united  them 
in  measures  to  obtain  redress.  In  the  pursuit  of  an  object  so  interesting 
we  shall  like  freemen  act  with  moderation  and  order;  but  at  the  same  time 
with  zeal  and  perseverance.  Whilst  we  respect  the  laws,  we  respect 
ourselves  and  our  rights  and  feel  the  strongest  obligations  to  assert  and 
maintain  them.180 

Arguably,  receiving  this  same  message  in  Manhattan  was  even  more  significant, 
given  the  city's  greater  population  and  role  as  a  center  of  commerce.  But  Jay 
already  appeared  to  be  backing  away  from  the  precipice  when  he  replied  to  his 
supporters  three  days  later: 

Such  is  our  Constitution,  and  such  are  the  means  of  preserving  order 
and  good  government,  with  which  we  are  blessed,  that,  while  our  citizens 
remain  virtuous,  free,  and  enlightened,  few  political  evils  can  occur,  for 
which  remedies  perfectly  effectual,  and  yet  perfectly  consistent  with  a 
general  tranquility  cannot  be  found  and  applied. 

I  derive  great  satisfaction  from  the  hope  and  expectation  that  the 
event  which  at  present  excites  so  much  alarm  and  anxiety,  will  give 
occasion  only  to  such  measures  as  patriotism  may  direct  and  justify;  and 
that  the  vigilance  and  wisdom  of  the  people  will  always  afford  to  their 
rights  that  protection  for  which  other  countries,  less  informed,  have  often 
too  precipitately  recurred  to  violence  and  commotion. 

In  questions  touching  our  constitutional  privileges,  all  the  citizens  are 
equally  interested;  and  the  social  duties  call  upon  us  to  unite  in 
discussing  those  questions  with  candour  and  temper,  in  deciding  them 
with  circumspection  and  impartiality,  and  in  maintaining  the  equal  rights 
of  all  with  constancy  and  fortitude. 

They  who  do  what  they  have  a  right  to  do,  give  no  cause  of  offence; 
and  therefore  every  consideration  of  propriety  forbids  that  differences  in 
opinion  respecting  candidates  should  suspend  or  interrupt  that  mutual 
good-humour  and  benevolence  which  harmonizes  society,  and  softens 


178.  Id.  at  440. 

1 79.  See,  e.g.,STAHR,supra  note  28,  at  288  (describing  "hundreds"  of  supporters  who  greeted 
Jay  on  his  arrival  on  Harlem  Heights  in  upper  Manhattan). 

1 80.  Letter  from  Nicholas  Cruger  and  the  New  York  Committee  to  Jay  (July  13,  1792),  in  3 
JAY,  supra  note  58,  at  442. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  57 


the  asperities  incident  to  human  life  and  human  affairs. 

By  those  free  and  independence  electors  who  have  given  me  their 
suffrages,  I  esteem  myself  honoured;  for  the  virtuous,  who  withheld  that 
mark  of  preference,  I  retain,  and  ought  to  retain,  my  former  respect  and 
good-will.181 

These  remarks  sound  like  a  concession  speech.  Jay  spoke  clearly  against  violence 
and  for  reconciliation.  Yet  this  speech  did  not  close  the  door  entirely  to  the 
pursuit  of  additional  measures.  In  the  back  of  Jay's  mind,  he  still  may  have  been 
hoping  that  the  idea  of  a  new  constitutional  convention,  which  his  Federalist 
friends  were  exploring,  might  work. 

C   The  Consideration  of  a  New  Constitutional  Convention 

Ironically,  John  Jay  himself  was  the  principal  author  of  New  York  State's 
first  constitution  in  1777,  shortly  after  the  Declaration  of  Independence.182  He 
was  proud  of  his  handiwork,  but  it  clearly  failed  him  as  a  candidate  for  governor 
in  1792.  The  state  constitution's  failings  were  not  limited  to  the  fact  that  its 
authors  did  not  anticipate  the  development  of  a  two-party  rivalry  that  would  infect 
the  gubernatorial  election  and,  more  importantly,  institutions  of  government  like 
the  canvassing  committee.  Even  worse,  the  New  York  Constitution  of  1777 
contained  no  mechanism  for  any  constitutional  amendments.183 

Because  Clinton's  supporters  controlled  the  state  legislature  at  the  time,  the 
Federalists  were  in  no  position  to  get  the  legislature  to  adopt  any  statutory 
measures  to  undo  the  canvassing  committee's  ruling.  Nor  would  the  legislature 
be  inclined  to  call  for  a  new  constitutional  convention  to  replace  or  amend  the 
1777  constitution  for  the  particular  purpose  of  nullifying  Clinton's  re- 
inauguration  based  on  the  committee's  divided  decision.  Thus,  if  the  Federalists 
were  to  have  any  hope  of  calling  a  new  constitutional  convention  for  this  purpose, 
they  needed  to  figure  out  how  to  do  so  through  entirely  extralegal  means,  outside 
the  parameters  of  the  1777  constitution  itself.  This  idea  was  the  one  the 
Federalists  focused  on  while  Jay  was  traveling  back  to  New  York  City  from 
riding  circuit  in  New  England. 

On  July  10,  the  same  day  that  Jay  heard  from  his  many  agitated  New  York 
City  supporters,  King  wrote  to  Hamilton  to  convey  the  news  of  Jay's  travels  and 
the  receptions  Jay  was  receiving.  In  this  letter,  King  characterized  Jay  as 
advocating  for  the  idea  of  a  single-purpose  constitutional  convention  (at  the  same 
time  that  Jay  was  being  guarded  in  his  public  comments): 

The  addresses  from  [A]lbany  and  other  northern  Towns,  together  with 
Mr.  Jay[']s  answers  leave  no  room  to  doubt  that  the  question  will  be 


181.  Letter  from  John  Jay  to  the  New  York  Committee  (July  1 6,  1 792),  in  3  Jay,  supra  note 
58,  at  443-44. 

1 82.  Charles  Z.  Lincoln,  1  The  Constitutional  History  of  New  York:  1 609- 1 822,  at 
162-88(1906). 

183.  Id. 


58  INDIANA  LAW  REVIEW  [Vol.  44:23 


brought  to  a  decision  in  some  way  or  other — if  it  can  be  done  under  any 
authority  of  Law  I  shall  rejoice,  because  I  consider  the  Determination  to 
be  a  precedent  dangerous  to  free  Elections.  Still  however  I  do  not  clearly 
see  the  prudence  of  an  appeal  to  the  People — yet  others  have  no  doubts 
on  that  subject,  and  there  is  reason  to  conclude  that  Mr.  Jay  deems  the 
occasion  such  as  will  justify  the  step  should  it  be  found  that  the  powers 
of  government  are  insufficient  to  afford  a  Remedy.  He  has  an  idea  of  a 
convention  for  the  sole  purpose  of  canvassing  the  canvassers  and  their 
Decision. 

But  Mr.  Clinton  is  in  fact  Governor,  and  though  he  may  not  be  free 
from  anxieties  &  Doubts,  he  will  not  willingly  relinquish  the  Office — the 
majority,  and  a  very  great  one  are  now  against  him — should  he  persist, 
and  the  sword  be  drawn,  he  must  go  to  the  wall — but  this  my  dear  Sir,  is 
a  dreadful  alternative,  and  what  &  whom  it  may  affect  is  altogether 
uncertain.  If  this  case  will  justify  a  recurrence  to  first  Principles,  what 
are  we  not  to  expect  from  the  disputes,  which  must  &  will  arise  in  the 
Succession  of  the  Presidency?  And  how  are  we  able  to  place  confidence 
in  the  security  of  our  Government?184 

This  letter  is  rich  with  details  and  significance.  Here  we  see  King's 
understanding  of  the  canvassing  committee's  "[determination"  as  a  "precedent 
dangerous  to  free  elections"  and  where,  in  particular,  he  saw  this  precedent  as 
potentially  affecting  presidential  as  well  as  gubernatorial  elections.185  Even  so, 
for  what  today  we  would  describe  as  pragmatic  reasons,  King  was  not  inclined 
to  support  Jay's  direct  "appeal  to  the  [pjeople"  through  the  mechanism  of  a 
single-purpose  constitutional  convention.  King  thought  Jay's  belief  that  a  resort 
to  "first  [principles"  was  morally  justified  in  this  situation  precisely  because  "the 
powers  of  government  [were]  insufficient  to  afford  a  [r]emedy."186  But 
strategically  King  feared  that  even  if  the  Federalists  were  successful  in  calling 
this  single-purpose  constitutional  convention,  Clinton  would  refuse  to  quit  the 
governorship;  therefore,  "the  sword  [would]  be  drawn"  and  the  conflict  would 
end  in  "dreadful"  violence.187  Thus,  out  of  "prudence,"  King  indicated  that  he 
disfavored  the  pursuit  of  any  extralegal  means  and  wanted  to  challenge  the 
canvassing  committee  only  "if  it  [could]  be  done  under  any  authority  of  [l]aw."188 
Alas,  King  was  never  able  to  develop  any  legal  avenue  of  redress. 

Kent  became  another  proponent  of  the  single-purpose  constitutional 
convention.  Initially,  his  view  was  closer  to  King's,  thinking  that  the  Federalists 
should  simply  acquiesce  for  fear  of  sparking  political  violence: 

The  people,  in  their  original  character,  can,  no  doubt,  rectify  the 


184.  Letter  from  Rufus  King  to  Alexander  Hamilton  (July  10,  1792),  in  The  Papers  OF 
Alexander  Hamilton,  Volume  XII:  July-October  1792,  at  20-21  (Harold  C.  Syretted.,  1967). 

185.  Id. 

186.  Id. 

187.  Id.  at  20. 

188.  Id. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  59 


grievance,  but  I  don't  see  that  the  ordinary  legislatures  have  jurisdiction 
over  a  contested  election  to  the  chief  magistracy.  The  peace  of  the 
community  requires  an  ultimate  decision  somewhere,  and  if  we  attempt 
to  declare  the  chair  vacant,  we  must  assume  the  powers  of  the  convention 
parliament  in  1688,  and  if  the  Governor  would  claim  his  office  under  the 
certificate  and  law,  I  see  no  peaceable  way  to  accommodate.  My  idea  is 
that  we  ought,  from  consideration  of  peace  and  prudence,  to  acquiesce 
in  the  authority  of  the  decision.  It  is  highly  proper,  however,  that  the 
people  should  reprobate  the  atrocious  insult  and  injury,  and  pursue  with 
recrimination  and  punishment  the  authors  of  the  wrong,  as  far  as  the  law 
will  tolerate  them.189 

This  letter  shows  that  from  the  start  Kent  had  some  form  of  a  convention  in  mind. 
But  he  had  not  yet  formulated  a  way  to  make  the  plan  palatable  to  his  sense  of  the 
need  for  civic  peace.  By  July  1 1 ,  the  day  after  King  wrote  to  Hamilton  about  the 
idea  of  a  single-purpose  convention,  Kent  was  doing  the  same  in  another  letter  to 
his  brother: 

I  have,  since  my  last  letter,  revolved  in  my  mind  a  mode  of  redress  now 
in  contemplation,  and  I  warmly  advocate  it.  It  is  that  a  convention  be 
called  under  the  recommendation  of  our  legislature,  to  take  the  decision 
into  review  and  to  ratify  or  annul  it  and  order  a  new  election,  as  they 
shall  deem  proper.  This  mode  is  wise,  benign,  orderly,  and  republican, 
and  no  application  can  be  made  to  it  of  the  harsh  and  forbidding  name  of 
faction  and  sedition.  I  shall  espouse  it,  and  I  believe  firmly  that  it  will 
succeed.  I  hope  therefore  what  I  wrote  before  will  be  no  check  to  your 
ardent  hopes  of  redress.190 

Kent's  support  for  this  idea  indicates  how  seriously  it  was  considered.  He  was 
in  the  legislature  at  the  time  and  by  nature  cautious  (as  his  initial  inclination 
showed).  If  he  was  on  board,  the  idea  was  gaining  momentum. 

By  contrast,  Hamilton,  who  was  entirely  opposed  to  Jay's  concept  of  a  single- 
purpose  convention,  responded  to  King  on  July  25  that  King  needed  to  talk  Jay 
out  of  this  idea: 

I  received  lately  a  letter  from  you,  in  which  you  expressed  sentiments 
according  with  my  own,  on  the  present  complexion  of  your  party  politics, 
as,  if  a  letter  of  mine  to  you  did  not  miscarry,  you  will  have  seen.  I 
wished  that  Clinton  and  his  party  should  be  placed  in  a  just  light  before 
the  people,  and  that  a  spirit  of  dissatisfaction,  within  proper  bounds, 
should  be  kept  alive;  and  this  for  national  purposes,  as  well  as  from  a 
detestation  of  their  principles  and  conduct. 

But  a  resort  to  first  principles,  in  any  shape,  is  decidedly  against  my 
judgment.  I  don't  think  the  occasion  will,  in  any  sense,  warrant  it.  It  is 


1 89.  Letter  from  James  Kent  to  Moss  Kent,  Jr.  (June  1 5, 1 792),  in  Memoirs  and  Letters  of 
James  Kent,  supra  note  62,  at  45-46. 

190.  Mat 46-47. 


60  INDIANA  LAW  REVIEW  [Vol.  44:23 


not  for  the  friends  of  good  government  to  employ  extraordinary 
expedients,  which  ought  only  to  be  resorted  to  in  cases  of  great 
magnitude  and  urgent  necessity.  I  reject  as  well  the  idea  of  a  Convention 
as  of  force. 

To  rejudge  the  decision  of  the  Canvassers  by  a  Convention,  has  to 
me  too  much  the  appearance  of  reversing  the  sentence  of  a  Court  by  a 
Legislative  decree.  The  canvassers  had  a  final  authority  in  all  the  forms 
of  the  Constitution  and  the  laws.  A  question  arose  in  the  execution  of 
their  office,  not  absolutely  free  from  difficulty,  which  they  have  decided 
(I  am  persuaded  wrongly)  but  within  the  power  vested  in  them.  I  do  not 
feel  it  right  or  expedient  to  attempt  to  reverse  the  decision,  by  any  means 
not  known  to  the  Constitution  or  laws.  The  precedent  may  suit  us  to- 
day; to-morrow  we  may  rue  its  abuse.191 

Hamilton's  character  as  the  ever-careful  calculator  is  evident  in  this  letter.  Again, 
he  was  willing  to  stoke  the  flames  of  public  passion  a  little,  as  long  as  it  was  not 
too  much,  and  he  quickly  linked  the  New  York  fight  between  the  Federalists  and 
Democratic-Republicans  with  the  national  version  of  the  same  conflict.192  But 
echoing  his  letter  to  King  a  month  earlier,  which  Hamilton  feared  was  lost  in  the 
mail,  Hamilton  elaborated  on  his  belief  that  "a  resort  to  first  principles"193 — either 
by  force,  or  even  by  convention — was  unwarranted. 

Hamilton's  arguments  against  Jay's  idea  of  a  single-purpose  convention  are 
nuanced  and  sophisticated.  Seeing  the  canvassing  committee  as  equivalent  to  a 
court,  as  Kent  did,  Hamilton  believed  it  wrong  that  a  legislative  body  (including 
a  constitutional  convention)  would  upset  an  already  adjudicated  judicial 
decision.194  Legislative  revision  of  judicial  judgments,  in  Hamilton's  view,  risked 
replacing  the  rule  of  law  with  the  arbitrary  tyranny  of  legislative  whims.195 

Hamilton  also  recognized  the  existence  of  two  alternative  views  on  whether 
the  canvassing  committee's  decision  was  as  wrong  as  Jay's  supporters  declaimed. 
Perhaps  because  Hamilton  watched  the  controversy  from  afar  (he  alluded  to  this 
fact  later  in  this  letter),  or  perhaps  because  of  his  calculating  temperament,  he  saw 
the  canvassing  committee's  decision  as  plausible.  Hamilton  hastened  to  add  that 


191.  Letter  from  Alexander  Hamilton  to  Rufus  King  (July  25,  1792),  in  1  The  Life  and 
Correspondence  of  Rufus  King  1755-1794,  at  417  (Charles  R.  King  ed.,  Da  Capo  Press  1971) 
(1894). 

1 92.  One  national  concern  of  the  Federalists  was  whether  they  would  be  able  to  keep  control 
of  the  Vice  Presidency,  which  Adams  had  occupied  in  Washington's  first  administration.  Clinton's 
status  in  New  York  could  affect  his  prospects  as  a  potential  Vice  President  from  the  Democratic- 
Republican  party,  allied  with  Madison  and  Jefferson  on  economic  policies  rather  than  with 
Hamilton  and  the  Federalists. 

193.  Letter  from  Alexander  Hamilton  to  Rufus  King  (July  25,  1792),  supra  note  191,  at  417. 

194.  Id. 

195.  In  this  respect,  Hamilton's  separation-of-powers  concern  is  a  precursor  of  the  Supreme 
Court's  decision  in  United  States  v.  Klein,  80  U.S.  128  (1871).  See  also  Plaut  v.  Spendthrift  Farm, 
Inc.,  514  U.S.  211,  218  (1995)  (applying  the  Klein  doctrine). 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  61 


he  viewed  that  decision  as  incorrect,  of  course  (perhaps  he  doth  protest  too 
much),  but  nonetheless  he  did  not  think  it  could  be  placed  outside  the  bounds  of 
reason.  He  probably  had  heard  the  facts  from  Otsego  County  that  would  support 
the  canvassing  committee's  ruling.  And  because  the  ruling  was  within  the 
canvassing  committee's  exclusive  jurisdiction,  Hamilton  (like  King)  saw  no  basis 
under  New  York's  constitution  or  laws  for  overturning  the  ruling. 

Hamilton's  letter  added  an  additional  argument  for  opposing  Jay's  idea  for 
a  single-purpose  convention.  His  additional  argument  is  one  often  heard  when 
the  suggestion  of  a  single-purpose  constitutional  convention  is  raised — which  is 
that  there  is  no  guarantee  of  confining  the  constitutional  convention  to  a  particular 
issue.  The  Framers  of  the  U.S.  Constitution  knew  that  truth  from  their  own 
experience  in  1787.  Similarly,  Hamilton  argued  that  if  the  Federalists  in  New 
York  got  their  wish  for  a  constitutional  convention  to  revise  the  canvassing 
committee's  decision,  the  convention  might  go  on  to  address  other  issues  in  ways 
not  to  the  conservative  Federalists'  liking: 

I  am  not  even  sure  that  [a  convention]  will  suit  us  at  all.  I  see  already 
publications  aiming  at  a  revision  of  the  constitution  with  a  view  to 
alterations  which  would  spoil  it.  It  would  not  be  astonishing,  if  a 
Convention  should  be  called,  if  it  should  produce  more  than  it  is 
intended.  Such  weapons  are  not  to  be  played  with.  Even  the  friends  of 
good  government  in  their  present  mood  may  fancy  alterations  desireable 
[sic]  which  would  be  the  reverse. 

Men[']s  minds  are  too  much  unsettled  every  where  at  the  present 
juncture.  Let  us  endeavor  to  settle  them  &  not  to  set  them  more  afloat. 

I  find  that  strong  minded  men  here  [in  Philadelphia]  view  the  matter 
in  the  same  light  with  me;  and  that  even  Mr  Jay[']s  character  is  likely  in 
a  degree  to  suffer  by  the  idea  that  he  fans  the  flame  a  little  more  than  is 
quite  prudent.  I  wish  this  idea  to  be  conveyed  to  him  with  proper 
management.  I  have  thoughts  of  writing  to  him. 

You  see,  out  of  the  reach  of  the  contagion,  I  am  very  cool  and 
reasonable;  if  I  were  with  you  I  should  probably  not  escape  the 
infection.196 

Hamilton  raised  the  thought  that  Jay's  political  future  might  suffer  if  he  tried  too 
hard  to  contest  the  canvassing  committee's  decision.  In  this  respect,  he  moved 
away  from  his  lawyerly  opposition  to  the  convention  idea  to  opposition  grounded 
in  political  considerations.  Hamilton  wanted  Jay  to  be  a  viable  candidate  in 
future  elections;  this  concern  is  one  expressed  throughout  the  history  of  disputed 
elections  in  the  United  States.  Perhaps  most  famously,  Richard  Nixon  refused  to 
challenge  John  F.  Kennedy's  victory  in  1960  for  fear  of  being  labeled  a  sore 
loser,  and  he  won  the  1968  presidential  election.197  More  recently,  some  urged 


1 96.  Letter  from  Alexander  Hamilton  to  Rufus  King  (July  25, 1 792),  in  XII  Hamilton,  supra 
note  1 84,  at  99  (emphasis  in  original). 

1 97.  For  a  review  of  recent  scholarship  on  the  1 960  presidential  election,  see  David  Stebenne, 
The  Election  of  1960  Fifty  Years  Later,  ELECTION  LAW  @  MORITZ  COMMENTARY  (Nov.  8,  2010), 


62  INDIANA  LAW  REVIEW  [Vol.  44:23 


Gore  in  2000  to  back  down  rather  than  challenging  the  certification  of  Bush's 
victory  in  court,  but  Gore,  perhaps  to  his  detriment  in  2004  and  2008,  did  not 
heed  this  advice.198  Of  course,  going  to  court  in  2000  is  not  the  same  sort  of 
extralegal  challenge  as  calling  a  constitutional  convention  in  1792. 

Still,  the  larger  point  remains.  Hamilton's  concern  was  not  about  achieving 
a  just  outcome  for  the  election  of  1792.  Rather,  his  concern  was  for  positioning 
the  Federalists  and  their  candidates  to  prevail  over  the  long  term.  Jay,  the  jurist, 
or  perhaps  just  because  he  was  the  candidate  affected,  was  having  a  harder  time 
giving  up  on  the  justice  of  his  cause.  As  a  politician,  he  also  recognized  the 
importance  of  protecting  his  political  reputation,  but  he  was  torn  by  these 
conflicting  sentiments.  Thus,  as  of  the  end  of  July,  it  was  still  an  open  question 
whether  Jay  would  accept  Hamilton's  advice  or,  instead,  go  forward  with  the 
convention  plan. 

Accordingly,  Hamilton  would  not  let  the  matter  drop.  On  July  27,  he  wrote 
King  again,  asking  for  "all  the  authorities  which  were  consulted  by  you  when  you 
gave  your  opinion"  on  "the  question  decided  by  the  [cjanvassers"  because  he 
(Hamilton)  was  "[d]esirous  of  examining  [it]  accurately."199  He  also  wanted 
those  documents  "as  soon  as  may  be  (had)."200  Meanwhile,  William  Lewis  wrote 
to  Hamilton  on  July  2 1  of  his  opinion  concerning  the  legality  of  the  canvassing 
committee's  decision: 

My  opinion  . . .  was  founded  on  this  Principle,  that  the  important  right  of 
Suffrage  being  Secured  to  the  People  by  the  Laws  and  Constitution,  and 
not  depending  on  the  Conduct  of  others,  they  cannot  be  deprived  of  it  but 
by  their  own  fault.  That  the  manner  of  taking,  &  more  espectially  [sic] 
of  transmitting  the  votes,  being  merely  directory,  an  Error  or  wilful  [sic] 
neglect  or  disobedience  in  the  officer  in  either  of  these  particulars,  will 
Subject  him  to  punishment  for  a  misdemeanor  in  office,  but  will  not 
affect  the  Election  or  destroy  the  rights  of  the  people,  where  no  fraud  or 
unfairness  appears  in  the  Conducting  of  the  Election,  and  it  is  made 
Satisfactorily  appear  that  the  votes  are  the  same  that  were  given  in 
with[ou]t  Alternation  Diminution  or  addition.  That  this  principle  applies 
with  great  force,  where  (as  in  the  present  Case)  the  Sheriff  was  not  an 
Election  Officer,  nor  a  Person  having  anything  to  do  with  holding  the 
Election,  and  where  the  Election  itself  is  the  Substance  and  the 
transmitting  of  the  votes  is  only  form.  If  this  were  not  the  Case  any 
Sheriff  might  at  pleasure  deprive  a  whole  County  of  the  right  of 
Suffrage!  I  know  of  no  Case  expressly  in  point,  but  there  are  many  in  the 


http://moritzlaw.osu. edu/electionlaw/comments/index.php?ID=7929. 

1 98.  See,  e.g. ,  R.  W.  Apple,  The  2000  Elections:  News  Analysis;  Recipe  for  a  Stalemate,  N.  Y. 
Times  (Nov.  9, 2000),  http://www.nytimes.eom/2000/l  l/09/us/the-2000-elections-news-analysis- 
recipe-for-a-stalemate.html  (comparing  Gore's  situation  to  Nixon's). 

1 99.  Letter  from  Hamilton  to  King  (July  27,  1 792),  in  1  The  Life  and  Correspondence  of 
Rufus  King,  supra  note  1 9 1 ,  at  4 1 7. 

200.  Id. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  63 


books  the  Principles  of  which  I  think  are  fully  applicable. 


201 


In  this  letter,  Lewis  did  not  refer  to  the  idea  of  calling  a  constitutional  convention 
or  otherwise  suggest  how  he  would  attack  the  canvassing  committee's  decision. 
But  he  seemed  unwilling  to  let  the  matter  rest,  or  at  least  he  still  seemed  to  be 
smarting  from  the  injury  inflicted  by  the  committee. 

During  this  same  period  of  uncertainty,  Cooper  proposed  to  Van  Rensselaer 
a  new  election  in  Otsego.202  Meanwhile,  King  wrote  back  to  Hamilton  on  July 
29, 

Mr.  Jay  will  be  with  you  this  week — you  will  therefore  have  an 
opportunity  to  converse  with  him  respecting  our  very  unpleasant 
situation.  All  the  measures  which  have  been  pursued  have  been 
calculated  to  induce  the  Legislature  to  call  a  convention  to  revise  the 
decision  of  the  canvassers.  So  far  as  I  am  able  to  form  an  Opinion,  a 
majority  of  the  Assembly  are  Clintonians,  and  if  so,  will  not  agree  to  call 
a  convention — should  this  be  the  case,  the  business  will  then  terminate.203 

King  seemed  to  be  telling  Hamilton  that  the  convention  idea  was  moving 
forward,  but  in  a  manner  that  would  be  unable  to  prevail.  This  scenario  of  the 
convention  idea  dying  in  the  legislature  was  not  entirely  unwelcome  to  the 
Federalists.  They  could  score  political  points  by  complaining  of  the  injustice 
wrought  by  the  canvassing  committee,  yet  they  would  bear  no  responsibility  for 
extralegal  measures  that  might  spin  out  of  control,  while  at  the  same  time  blaming 
the  legislature  for  doing  nothing  to  redress  the  injustice. 

Even  into  August,  however,  there  were  those  still  urging  Jay  and  his  allies  to 
keep  up  the  fight  against  the  canvassing  committee's  decision.  For  example,  on 
August  14,  a  federal  district  judge  in  Rhode  Island,  Henry  Marchant,  wrote  to 
Jay, 

While  New  England  laments  the  loss  the  publick  [sic]  may  sustain  in 
your  quitting  your  present  important  federal  station,  they  feel  as  friends 
to  order,  decency,  and  the  rights  of  man,  a  wish,  not  merely  for  your 
success,  but  the  success  of  constitutional  rights;  and  would  not  be  happy 
to  find  the  steady  advocates  of  liberty  desert  the  cause.  Example  is 
Precedent;  and  in  our  first  setting  out  we  should  be  cautious  how  we 
establish  bad  precedents.  Posterity  has  a  demand  on  us — that  the  laws 
and  constitution  we  have  been  blessed  with  are  not  handed  down  to  them 
mangled  or  in  fetters.204 


201.  Letter  from  William  Lewis  to  Alexander  Hamilton  (July  21,  1792),  in  XII  Hamilton, 
supra  note  184,  at  65-66.  This  letter  is  the  one  in  which  Lewis  refers  to  a  Pennsylvania  Supreme 
Court  opinion  from  1782  concerning  an  election  to  the  supreme  executive  council  of  the  state's 
legislature.  The  other  precedents  he  mentions  in  the  letter  are  British. 

202.  YOUNG,  supra  note  27,  at  3 12. 

203 .  Letter  from  Rufris  King  to  Alexander  Hamilton  (July  29, 1 792),  in  XII  Hamilton,  supra 
note  184,  at  65-66. 

204.  Letter  from  Henry  Marchant  to  John  Jay  (Aug.  14,  1792),  in  3  Jay,  supra  note  134,  at 


64  INDIANA  LAW  REVIEW  [Vol.  44:23 


This  letter  is  more  evidence  that  members  of  the  Founding  Generation 
nationwide,  and  not  just  in  New  York,  knew  that  they  were  setting  a  precedent 
(good  or  bad)  by  how  they  handled  the  dispute  over  the  New  York  gubernatorial 
election  of  1792.  This  episode  was  a  "first  setting  out"  regarding  this  kind  of 
controversy,  and  Judge  Marchant  wanted  Jay  to  press  on  and  not  "desert  the 
cause"  of  "liberty."  As  such,  the  precedent  set  would  be  one  protective  of 
"constitutional  rights,"  rather  than  leaving  them  "mangled  or  in  fetters."205 

Nonetheless,  according  to  this  author,  an  even  worse  precedent  would  be  one 
that  settled  disputed  elections  through  violence  rather  than  law.  Therefore,  Judge 
Marchant  applauded  Jay's  constraint  in  pursuing  his  cause.  Recognizing  that  a 
temperate  response  to  the  canvassing  committee  might  end  in  defeat,  Judge 
Marchant  saw  defeat  as  preferable  to  victory  by  violence: 

The  delicate,  prudent,  and  cautious  manner,  so  peculiar  to  you,  in  which 
you  answered  the  addresses  of  your  fellow-citizens,  has  given  great 
pleasure;  for  while  it  is  our  duty  to  contend  against  the  violations  of 
essential  rights,  it  behooves  us  that  we  do  not  by  our  own  conduct 
establish  the  violence  we  contend  against.  We  had  better  fail — having 
done  all  that  faithful  citizens  and  guardians  of  the  laws  ought  to  do,  than 
proceed  by  methods  disgraceful  to  a  good  cause.206 

Moderation,  or  perhaps  ambivalence,  is  the  mood  that  this  letter  ultimately 
conveys. 

Robert  Troup  wrote  to  Hamilton,  his  former  roommate,  on  August  24.  Troup 
was  not  so  moderate  or  ambivalent,  as  he  had  always  been  the  one  most 
vociferous  in  pressing  Jay's  cause.  (In  this  respect,  too,  his  role  resembles  the 
one  Ron  Klain  played  for  Gore  two  centuries  later).  Troup,  presumably  knowing 
that  Hamilton  counseled  caution,  defended  his  more  aggressive  stance: 

I  have  as  you  have  learnt  taken  a  very  active  part  ab[ou]t  the  wicked  & 
abominable  decision  of  the  canvassers.  I  think  &  have  always  thought, 
my  good  friend,  this  decision  to  be  subversive  of  the  most  sacred  right 
that  can  be  enjoyed  under  any  government.  Quickly  therefore  to  submit 
to  it  would  argue  a  poverty  of  spirit  &  an  indifference  to  the  principles 
of  freedom  which  would  fix  an  indelible  stigma  upon  our  characters.  I 
have  always  imagined  &  now  see  no  reason  for  imag[in]ing  otherwise 
that  we  should  not  obtain  redress.  My  object  has  been  to  make  a  strong 
impression  upon  the  public  mind  of  the  deep  corruption  of  Clinton  &  his 
party  and  thus  to  render  him  odious.  We  have  pretty  well  succeeded  in 
this  object  &  I  trust  our  success  will  be  more  complete.  I  have  no 
apprehension  that  we  shall  endanger  the  political  ship.  It  is  the  interest 
of  us  all  that  she  should  be  kept  in  her  present  course  with  a  fair  wind  . 
...  Be  not  therefore  uneasy — but  at  the  same  [time]  do  not  forget  that 


444-45. 

205.  Id.  at  445. 

206.  Id 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  65 


allowances  should  be  made  for  the  keen  anguish  we  suffer  from  the 
wound  we  have  received.207 

In  this  way,  Troup  directly  responded  to  Hamilton's  concern  that  pressing 
forward  might  cause  the  situation  to  spin  out  of  control.  On  the  contrary, 
according  to  Troup,  there  was  no  danger  to  the  polity  if  the  Federalists  convinced 
the  public  that  justice  required  redress  for  Jay. 

Hamilton,  however,  was  not  persuaded  by  Troup's  plea.  He  wrote  his  own 
note  on  the  back  of  Troup's  letter:  "No  answer  necessary."208  Perhaps  Hamilton 
already  knew  that  Jay's  cautious  instincts  would  cause  him  to  side  with  Hamilton, 
rather  than  Troup,  on  the  course  of  conduct  they  should  take. 

D.   The  View  from  Virginia 

Initially,  moderates  tended  to  support  Jay's  position,  and  even  some 
Clintonians  expressed  reservation.  From  a  distance,  Jefferson  thought  that 
Clinton  should  repudiate  his  purported  victory:  "[it]  does  not  seem  possible  to 
defend  Clinton  as  a  just  or  disinterested  man  if  he  does  not  decline  the  office."209 
He  thought  this  even  as  he  knew  of  the  controversy  over  Cooper's  conduct  in 
Otsego.210 

Historian  Jabez  Hammond  says  that  Clinton  could  have  acted 
magnanimously — "if  he  had  advised  them  to  allow  the  disputed  votes,  is  it 
probable  that  a  majority  of  the  committee  being  his  personal  and  political  friends, 
would  have  rejected  them?"211  Hammond,  however,  observed  what  all  of  us  have 
observed  concerning  candidates  in  more  recent  disputed  elections: 

The  excitement  produced  by  a  heated  and  sharply  contested  election,  in 
the  result  of  which  he  was  personally  concerned,  must  have  biassed  [sic] 
and  clouded  the  otherwise  clear  and  pure  mind  of  the  governor.  . . .  How 
hard  is  it  for  the  most  pure  minded  man  to  adjudicate  upon  a  question 
against  his  own  wishes  and  interest?  Besides  this,  the  governor  would 
have  had  to  contend,  and  did  have  to  contend,  not  only  against  his  own 
interest  and  wishes,  but  against  the  persuasions  and  wishes  of  all  those 
political  friends  who  had  steadily  and  zealously  supported  him,  and 
whose  political  prospects  greatly  depended  on  the  decision  of  the 


207.  Letter  from  Robert  Troup  to  Alexander  Hamilton  (Aug.  24,  1792),  in  XII  Hamilton, 
supra  note  184,  at  292. 

208.  XII  Hamilton,  supra  note  1 84,  at  273  n.5. 

209.  Stahr,  supra  note  28,  at  287. 

210.  "The  Clintonians,"  Jefferson  informed  Madison,  "tell  strange  tales  about  these  votes  of 
Otsego."  Letter  from  Thomas  Jefferson  to  James  Madison  (June  21, 1792),  in  6  The  Writings  of 
Thomas  Jefferson,  1792-1794,  at  89  (Paul  Leicester  Ford  ed.,  1895).  Jefferson  was  fearful 
that — as  a  result  of  the  apparently  stolen  gubernatorial  election  in  New  York — if  their  party  backed 
Clinton  as  the  candidate  for  Vice  President  to  replace  Adams,  "the  cause  of  republicanism  will 
suffer."  Id.  at  90. 

211.  Hammond,  supra  note  27,  at  69. 


66  INDIANA  LAW  REVIEW  [Vol.  44:23 


canvassers.  Considering  therefore,  the  strength  of  party  excitement,  and 
the  weakness  of  human  nature,  it  is  not  surprising  that  Mr.  Clinton 
should  have  desired  that  the  canvassing  committee  should  decide  the 
election  in  his  favor.212 

In  other  words,  Hammond  says  that  no  one  should  expect  a  politician  to  act  based 
on  honor  and  virtue  when  the  prize  at  stake  is  a  major  one,  like  being  governor 
of  New  York.  Like  Hammond,  we  could  not  have  expected  George  Bush  to  say 
that  Al  Gore  really  deserved  to  be  declared  the  winner  of  Florida's  Electoral 
College  votes,  and  thus  the  presidency,  based  on  the  defect  of  the  "butterfly 
ballot"  alone.213 

Most  interestingly,  Madison  expressed  a  nuanced  view  on  whether  Clinton 
should  have  "declined  the  office,"  as  Jefferson  claimed.  First  of  all,  Madison  saw 
"the  spirit  of  party"  on  both  sides  of  the  controversy  based  on  his  reading  of  the 
newspapers  from  New  York.214  For  his  part,  Madison  tried  to  articulate  a 
detached  perspective  that  was  not  infected  by  his  own  partisanship.  "Whether 
Clinton  ought  to  wave  the  advantage  of  forms,"  Madison  wrote  in  response  to 
Jefferson,  "may  depend  I  think  on  the  question  of  substance  involved  in  the 
conduct  of  the  Otsego  election."215  Madison  continued,  "If  it  be  clear  that  a 
majority  of  legal  honest  votes  was  given  ag'st  him  [against  Clinton],  he  ought 
certainly  not  to  force  himself  on  the  people."216  This  sentence  expressed 
agreement  with  Jefferson  up  to  a  point.  If  Jay's  supporters  were  correct  that  the 
status  of  Smith  as  a  sheriff  was  just  a  technicality,  and  the  votes  from  the  county 
were  themselves  sound,  then  Madison  was  siding  with  Jefferson  in  thinking  that 
Clinton  ought  to  do  the  honorable  thing  and  decline  to  win  based  solely  on  a 
formal  defect  in  the  sheriffs  status. 

Madison,  however,  saw  the  situation  as  more  complicated  than  Jefferson  did. 
Immediately  after  the  sentence  just  discussed,  Madison  continued,  "on  a  contrary 
supposition" — meaning  that  if  one  supposed  that  there  was  a  reasonable  doubt 
whether  Jay  in  fact  won  "a  majority  of  legal  honest  votes" — then  Clinton  "[could 
not]  be  under  such  an  obligation"  to  decline  the  office.217  Madison  explained  that 
Clinton  would  actually  owe  it  to  his  party  to  fight  for  the  office  if  there  was  a 
plausible  claim  that  he  actually  won  more  valid  votes.  Clinton  in  this  situation, 
according  to  Madison,  "would  be  restrained  by  respect  for  his  party  if  not  by  a 


212.  Mat 69-70. 

213.  Patrick  Buchanan  acknowledged  that  most  of  the  votes  he  got  as  a  result  of  the  butterfly 
ballot  were,  in  all  probability,  intended  for  Gore — more  than  enough  to  put  Gore  ahead  of  Bush. 
Bush  could  have  conceded  the  election  on  that  basis,  and  perhaps  that  would  have  been  the 
magnanimous  thing  to  do.  He  did  not,  and  as  our  political  culture  has  evolved,  we  would  not  have 
expected  him  to  do  so. 

214.  Letter  of  James  Madison  to  Thomas  Jefferson  (June  29,  1792),  in  15  The  Papers  of 
James  Madison  331  (rev.  ed.  1983)  (1971). 

215.  Id.  at  331-32. 

216.  Id.  at  332  (emphasis  in  original). 

217.  Id. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  67 


love  of  power."218  In  other  words,  Madison  was  making  an  argument  somewhat 
different  from  Hammond's.  It  is  not  merely  that  we  can  expect  politicians  to  act 
based  on  political  ambition  even  when  honor  or  virtue  would  dictate  otherwise. 
Rather,  there  are  situations  in  which  a  partisan  politician  has  a  duty  to  his  own 
party  to  pursue  the  party's  interest — even  if  the  party's  interest  is  not  identical  to 
a  neutral  view  of  the  public  interest — as  long  as  there  is  some  doubt  about 
whether  or  not  the  party's  interest  coincides  with  the  neutral  view. 

Madison's  position  here  is  quite  a  change  from  his  Federalist  Papers 
antagonism  to  the  spirit  of  partisanship  in  general.  Madison  still  wanted  the 
public  interest  to  prevail,  and  he  still  believed  that  a  partisan  politician  must  put 
aside  partisan  advantage  when  what  the  public  interest  calls  for  is  "clear."219  But 
here  he  appeared  to  be  hoping  for  a  political  system  that  could  combine  two 
somewhat  contradictory  features:  first,  the  system  would  permit  politicians  to  act 
out  of  partisan  motive  when  matters  are  not  so  clear-cut;  yet,  second,  at  the  same 
time  the  system  would  figure  out  which  partisan  position  coincides  with  an 
impartial  view  of  the  public  interest.  What  Madison  failed  to  provide  in  this  letter 
to  Jefferson  was  an  explanation  of  the  institutional  apparatus  that  will  protect  the 
public  interest  when  candidates  like  Clinton  are  acting  out  of  partisan  motives  in 
circumstances  where  there  appear  to  be  plausible  arguments  on  both  sides. 
Madison  did  not  tell  us  what  to  do  when,  for  instance,  Jay  had  good  reason  to 
think  that  he  did  win  a  majority  of  valid  votes,  whereas  Clinton  credibly  could 
claim  to  the  contrary.  Madison  did  not  discuss  the  institution  of  the  canvassing 
committee  or  consider  what  to  do  if  it  were  disproportionally  populated  by 
partisans,  rather  than  being  a  balanced  tribunal  that  would  consider  the  claims  on 
both  sides  fairly.  Madison's  failure  to  spend  more  time  on  this  specific  New 
York  election  is  understandable,  but  the  consequences  of  his  doing  so  remain 
with  us  today.  His  letter  to  Jefferson  on  the  New  York  election  reveals  that  his 
own  perspective  regarding  partisanship  articulated  in  the  Federalist  Papers  was 
no  longer  operative  in  his  own  mind  by  1792.  Thus,  his  1787  conception  of 
constitutional  institutions  was  founded  on  faulty  premises.  Yet  he  never  updated 
his  views  about  what  constitutional  institutions  would  be  necessary  in  light  of  his 
new  conception  of  the  role  of  partisanship  in  democratic  elections.  In  short, 
Madison,  as  our  primary  Founding  constitutional  architect,  never  designed  the 
kind  of  tribunal  we  need  to  handle  a  disputed  election  where  the  candidates  are 
entitled  to  press  their  competing  partisan  claims  regarding  which  side  won  more 
valid  votes. 

Monroe,  Madison's  compatriot  in  Virginia,  offered  yet  another  perspective 
on  the  events  in  New  York  from  that  southern  state.  He  confessed  to  Madison 
that  he  could  not  figure  out  which  side  was  right:  "'Tis  difficult  to  estimate  the 
merits  of  this  controversy  especially  through  the  medium  by  which  it  is  handed 
to  the  publick  [sic]  view."220  Were  the  Otsego  facts  as  the  Clintonians  alleged, 


218.  Id. 

219.  Id. 

220.  Letter  from  James  Monroe  to  James  Madison  (June  27,  1792),  in  The  Writings  of 
James  Monroe,  1778-1794,  at  235  (Stanislaus  Murray  Hamilton  ed.,  1898). 


68  INDIANA  LAW  REVIEW  [Vol.  44:23 


laced  with  the  suspicion  of  ballot-box  tampering?  Or  were  the  Federalists  right 
to  complain  of  voter  disenfranchisement  merely  "upon  the  principle  of 
disqualification  in  the  returning  officer"?221 

Monroe's  uncertainty,  however,  concerned  more  than  just  the  facts  extending 
to  the  legal  grounds  upon  which  the  dispute  should  be  resolved.  "I  have  not 
sufficient  data  to  judge  of  it  on  general  principles,  and  'tis  not  improbable  that 
even  these  might  be  acted  on  by  some  [sjtate  regulation."222  Here,  Monroe  was 
recognizing  that  a  promulgated  provision  of  New  York  law  (statute, 
administrative  rule,  or  constitutional  text)  might  specifically  address  whether  or 
not  to  count  the  Otsego  ballots  given  the  particular  circumstances  of  this 
dispute.223  If  so,  Monroe  acknowledged  that  the  proper  adjudication  of  this 
dispute  should  set  aside  "general  principles"  even  if  one  knew  what  answer  they 
would  dictate.  General  principles  of  law  are  to  be  followed  in  a  dispute  of  this 
kind,  but  only  if  there  is  no  positive  enacted  law  that  supersedes  those 
background  general  principles. 

In  this  respect,  Monroe  anticipated  an  important  discussion  that  has  emerged 
in  the  wake  of  Bush  v.  Gore  and  Coleman  v.  Franken.  In  the  post-2000  debate 
regarding  whether  strict  or  lenient  enforcement  of  election  rules  is  preferable,  it 
has  become  widely  acknowledged  that  it  is  better,  where  possible,  to  sidestep  this 
debate  about  "general  principles"  by  relying  on  specific  provisions  of  state  law 
that  address  the  situation.224  Thus,  scholars  urge  states  to  take  legislative 
positions  on  the  debate  between  strict  and  lenient  enforcement,  spelling  out  their 
own  state-specific  resolutions  of  this  debate  in  as  much  detail  as  they  can.  Insofar 
as  Monroe  recognized  that  it  is  better  to  resolve  high-stakes  disputed  elections 
based  on  clear  rules  promulgated  in  advance  rather  than  by  an  appeal  to  "general 
principles"  or  (as  Madison  put  it)  "right  reason,"  Monroe  was  thinking  far  ahead 
of  his  time. 

Monroe's  fellow  Virginians,  Madison  and  Jefferson,  both  thought  they  could 
figure  out  what  answer  "general  principles"  or  "right  reason"  called  for  in  the 
New  York  dispute.  Yet  as  we  have  seen,  even  from  their  detached  Virginian 
perspectives,  Jefferson  and  Madison  did  not  see  eye-to-eye  on  exactly  what  pure 
principles  of  jurisprudence  required  in  this  instance.  Thus,  the  gap  in  the 
assertion  of  principles  between  the  Federalists  and  Clintonians  in  New  York 
cannot  be  attributable  solely  to  self-interest. 

To  be  sure,  each  side  in  New  York  advocated  its  "general  principle"  based  on 
its  partisan  position  in  the  particular  case.  It  is  ironic,  moreover,  that  in  this  first 
major  disputed  election  in  U.S.  history,  each  side  adopted  a  jurisprudential 
posture  at  odds  with  its  basic  principles  of  political  philosophy.  The  Democratic- 
Republicans  advocated  throwing  the  Otsego  votes  out,  even  though 
philosophically  they  were  more  predisposed  than  the  Federalists  to  enfranchising 
the  average  citizen.  In  this  instance,  conversely,  the  Federalists  championed  voter 


221.  Id. 

222.  Id. 

223.  Id. 

224.  See,  e.g.,  Hasen,  supra  note  125,  at  82. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  69 


enfranchisement-enhancing  rules  despite  their  philosophical  tendency  to  be  the 
more  "law-and-order"  party.225 

This  irony  was  not  lost  on  the  participants  themselves.  As  we  have  already 
seen,  Hamilton  noted  the  inconsistency  between  Jay's  pursuit  of  extralegal 
measures  and  his  party's  general  aversion  to  rabble-rousing.226  Troup 
sarcastically  complained  that  the  so-called  "friends  of  the  People,"  as  the 
Democratic-Republicans  liked  to  call  themselves,  would  favor  tossing  out  the 
Otsego  ballots  based  on  the  defect  in  Smith's  status  as  sheriff:  "The  efforts  made 
to  prevent  the  canvassing  of  these  votes  .  .  .  upon  a  mere  law  quibble  are  really 
characteristic  of  these  virtuous  protecters  of  the  rights  of  the  people,  of  the 
enemies  of  aristocracy,  and  the  declaimers  against  ministerial  influence."227 

Arguing  contrary  to  the  usual  philosophy  of  one's  party  is,  of  course,  a 
prominent  feature  of  contemporary  election  disputes.  For  example,  it  was  widely 
observed  in  the  context  of  the  disputed  2008  U.S.  Senate  election  in  Minnesota 
that  Al  Franken,  the  Democrat,  was  favoring  a  strict  enforcement  position  that 
would  disenfranchise  eligible  voters,  the  opposite  of  the  Democratic  Party's  usual 
stance  regarding  election  law.  On  the  other  hand,  Coleman,  the  Republican,  was 
championing  the  lenient  enforcement  position  that  his  party  usually  opposes.228 
Similarly,  what  disturbed  observers  most  about  the  U.S.  Supreme  Court's  5-4 
decision  in  Bush  v.  Gore  was  that  each  side  of  that  5-4  split  took  a  position 
opposite  to  its  usual  jurisprudential  stance.229  The  five  members  of  the  majority, 
who  were  the  conservatives  on  the  Court,  issued  a  ruling  antithetical  to  their 
typical  states-rights  philosophy  and  embraced  an  expansive  interpretation  of  the 
Equal  Protection  Clause  that  they  normally  would  oppose.  Conversely,  the  four 
liberal  dissenters  trumpeted  a  states-rights  argument  that  they  usually  would  find 
objectionable  as  a  basis  for  interfering  with  enforcement  of  federal  equal 
protection  rights. 

Thus,  one  can  cite  the  disputed  election  of  1 792  as  the  first  in  a  long  line  of 


225.  See  Alexander  Keyssar,  The  Right  to  Vote:  The  Contested  History  of 
Democracy  in  the  United  States  32  (rev.  ed.  2009)  ("The  Federalists . . .  tended  to  oppose  any 
broadening  of  the  franchise;  the  more  egalitarian  Jeffersonian  Republicans  viewed  expansion  more 
favorably."). 

226.  James  Kent's  biographer  put  the  point  more  positively:  the  canvassing  committee's 
decision  "gave  the  angry  Federalists  an  opportunity  to  pose  in  a  new  light  as  the  champions  of  the 
people's  freedom."  HORTON, supra  note  64,  at  69.  Kent,  in  particular,  changed  his  tune  regarding 
democratic  populism: 

Ordinarily  the  sight  of  liberty  poles  filled  Kent  with  disgust.   But  the  pole  set  up  in 
Cooperstown  before  the  court-house  was  an  exception.  In  the  autumn  of  1792,  as  he 
visited  the  outraged  shire  of  Otsego,  he  viewed  it  with  approval.  It  was  an  emblem  of 
the  just  indignation  of  the  people  at  the  recent  attack  upon  their  liberties. 
Id.  at  70. 

227.  Letter  from  Robert  Troup  to  John  Jay  (May  20,  1 792),  in  3  Jay,  supra  note  1 34,  at  424. 

228.  See  Foley,  supra  note  121. 

229.  See,  e.g.,  Cass  R.  Sunstein,  Introduction:  Of  Law  and  Politics,  in  THE  VOTE:  BUSH, 
Gore  &  the  Supreme  Court  1  (Cass  R.  Sunstein  &  Richard  A.  Epstein  eds.,  2001). 


70  INDIANA  LAW  REVIEW  [Vol.  44:23 


cases  in  which  the  two  warring  parties  chose  whichever  jurisprudential  position 
was  most  convenient  for  the  particular  moment.  This  observation  underscores  the 
need  for  some  impartial  institution  if  the  dispute  is  to  be  decided  based  on 
"general  principles"  rather  than  unambiguous  statutory  directives.  In  the  absence 
of  statutory  clarity,  there  is  no  single  objective  truth  discernible  from  "general 
principles"  regarding  the  resolution  of  election  disputes.  The  views  of  the 
Virginians  teach  us  that.  Moreover,  in  the  absence  of  a  single  truth  derivable 
from  "general  principles,"  partisans  can  pick  whichever  version  of  "general 
principles"  best  suits  their  immediate  electoral  need. 

Our  Founding  philosophers,  Jefferson  and  Madison,  did  not  have  some  pure 
and  well-developed  theory  of  how  to  handle  a  disputed  election.  We  cannot 
simply  retrieve  the  Founders'  understanding  of  what  to  do  in  a  case  like  Bush  v. 
Gore  and  apply  that  Founding  Era  philosophy  to  whatever  new  disputed  election 
occurs  in  our  own  time.  Instead,  the  Virginia  response  to  the  New  York  dispute 
shows,  perhaps  more  than  anything,  that  the  Founding  philosophy  on  how  to 
operate  a  constitutional  democracy  was  incomplete.  The  Founders  did  not  leave 
us  a  roadmap  on  how  to  get  through  a  Bush  v.  Gore  (or  similar  dispute)  because 
they  themselves  were  unsettled  on  how  to  handle  this  kind  of  situation.  Jefferson 
might  do  one  thing,  Madison  another — for  reasons  having  nothing  to  do  with  the 
taint  of  partisanship,  but  simply  because  their  own  understanding  of  "general 
principles"  and  "right  reason"  were  insufficient  for  specifying  an  answer  for  the 
situation  at  hand.  This  truth,  above  all,  is  why  going  forward,  our  constitutional 
democracy  must  design  new  institutions  to  address  this  kind  of  situation. 

E.   The  Clintonian  Counteroffensive  and  the  Federalist  Response 

Early  in  the  controversy  of  1792,  it  seemed  as  if  there  might  be  some  small 
chance  that  Clinton  would  follow  Jefferson's  recommendation  and  graciously 
accept  defeat  based  on  the  Otsego  ballots.230  Chancellor  Robert  Livingston,  a 
leading  Clintonian,  signer  of  the  Declaration  of  Independence,  and  major  figure 
in  the  state,  wrote,  "I  confess  I  would  have  wished  that  all  the  votes  had  been 
counted  whatever  might  have  been  the  event."231  But  this  position  did  not  hold, 
and  the  Clintonians  began  planning  their  counterattack.  By  mid- July,  Livingston 
took  the  position  that  "[w]hether  the  canvassers  were  right  or  wrong  is  no  longer 
a  question  of  any  moment . . .  their  determination  is  conclusive,  nor  do  I  know  of 
any  constitutional  mode  of  revising  the  question."232  It  appears  that  Livingston's 
opinion  was  that  Clinton  had  no  choice  but  to  accept  reelection  once  the  prize  was 
given  to  him,  but  this  rationalization  seems  politically  expedient.  Had  Clinton 
renounced  the  result  in  mid- July,  surely  the  leading  politicians  in  the  state  would 
have  devised  a  bipartisan  way  to  have  the  canvassing  committee  reconvene  and 
revise  its  ruling.  But  Clinton  in  1792,  like  Bush  in  2000,  had  no  interest  in  going 
down  that  accommodationist  road. 


230.  See  YOUNG,  supra  note  27,  at  3 1 7. 

231.  Id.  at  313. 

232.  Mat  314. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  71 


Taylor  recounts  the  Clintonians'  publication  of  affidavits  against  Cooper  on 
June  16,  1792.233  "The  affidavits  collectively  depicted  Cooper  as  an  overbearing 
landlord  and  unscrupulous  judge  bullying  his  settlers  with  his  formidable 
combination  of  economic  and  judicial  power,  packing  the  polls  with  unqualified 
voters,  and  intimidating  Clintonian  pollwatchers."234  The  Federalists 
counterpunched  with  their  own  affidavits.  One  witness  changed  his  story  three 
times,  first  espousing  Clintonian  attacks  on  Cooper,  then  supporting  Cooper,  and 
finally  attacking  him  again.235  It  is  difficult  from  this  vantage,  over  two  hundred 
years  later,  to  determine  the  truth  of  the  charges  and  countercharges.  At  the  time, 
no  objective  tribunal  was  available  to  adjudicate  the  matter.236 

The  fair-minded  Hammond  certainly  describes  Cooper's  behavior  as 
improper,  unlawful,  and  contrary  to  the  operation  of  a  free  and  fair  election: 

The  depositions  of  these  witnesses  .  .  .  certainly  do  show  gross 
misconduct  in  him  as  a  citizen,  during  the  canvass  in  Otsego,  at  the 
election  between  Jay  and  Clinton.  It  was  deposed  that  he  encouraged 
illegal  voting  in  favor  of  Mr.  Jay;  that  he  knowingly  had  caused  men  to 
vote  who  were  not  freeholders;  that  he  threatened  voters  with  suits  who 
expressed  a  wish  to  vote  for  Mr.  Clinton,  and  that  he  menaced  a  Mr. 
Cannon,  who  came  to  the  polls  to  challenge  illegal  voters,  that  if  he 
challenged  any  one,  he  (the  judge,)  would  forthwith  commit  him  to 
jail.237 

But  as  bad  as  Cooper's  conduct  was,  in  many  people's  minds  it  did  not  make  the 
case  for  throwing  out  all  the  county's  ballots  because  of  the  sheriffs  defect.238 
One  historian  sympathetic  to  the  Clintonian  position,  who  thought  the  evidence 
supported  the  charges  against  Cooper,  also  thought  that  "the  Federalists 
established  by  far  the  better  case"  concerning  the  acceptability  of  ballots  from  a 
de  facto  sheriff.239  The  Federalists  managed  to  avoid  a  legislative  condemnation 
of  Cooper  through  some  parliamentary  maneuvering;  they  were  able  to  postpone 
a  vote  until  Cooper  himself  had  a  chance  to  testify,  but  that  testimony  did  not 
occur  while  the  Republicans  maintained  control.240  In  the  next  election,  the 
Federalists  gained  a  majority,  and  by  then  they  would  not  condemn  their  Otsego 
ally.241 

The  much  larger  question  than  the  fate  of  Cooper's  reputation  was  what,  if 


233.  Taylor,  supra  note  27,  at  183. 

234.  Id. 

235.  Mat  184-85. 

236.  Although  the  veracity  of  the  affidavits  attacking  Cooper  was  never  determined,  the 
affiants  found  themselves  criminal  defendants  in  Cooper's  court  after  politically  motivated 
indictments  were  issued  for  crimes  ranging  from  keeping  a  disorderly  house  to  rape.  Id.  at  1 85-86. 

237.  Hammond,  supra  note  27,  at  76-77. 

238.  See  TAYLOR,  supra  note  27,  at  192. 

239.  YOUNG,  supra  note  27,  at  320-2 1 . 

240.  Id.  at  322. 

241.  Id.  at  322-23. 


72  INDIANA  LAW  REVIEW  [Vol.  44:23 


anything,  were  the  Federalists  ultimately  going  to  do  about  what  they  still 
perceived  as  the  canvassing  committee's  blatant  theft  of  Jay's  victory?  Were  they 
going  to  go  forward  with  Jay's  plan  for  a  single-purpose  constitutional 
convention  despite  Hamilton's  strong  objections?  Or  were  they  going  to  try  some 
other  means,  before  the  next  gubernatorial  election  in  1795,  to  unseat  Clinton 
from  office?  Or  would  they  simply  back  down  altogether  and  wait  patiently  for 
that  next  election,  hoping  for  decisive  but  delayed  vindication  at  the  ballot  box? 
In  the  end,  Hamilton  got  his  way.  The  Federalists  abandoned  the  convention 
idea  and  settled  instead  for  legislative  grandstanding  as  a  public  relations  strategy 
with  an  eye  to  the  next  election.242  In  the  summer  and  fall  of  1 792,  the  Federalists 
knew  that  they  did  not  control  the  state  legislature.243  Still,  with  James  Kent  in 
the  lead,  they  pursued  charges  of  impeachment  against  the  canvassing  committee 
and  demanded  a  legislative  investigation,244  which  lasted  until  January  1793.245 
The  Clintonian  majority,  not  surprisingly,  exonerated  the  canvasssers  of  any 
wrongdoing,  but  the  investigation  at  least  allowed  the  Federalists  to  air  their 
charges.246  The  strategy  partially  backfired,  as  the  Clintonians  retaliated  by 
conducting  their  own  legislative  investigation  of  Cooper  and  his  inappropriately 
domineering  behavior  in  Otsego.247  These  proceedings  lasted  another  few  months 
and  would  have  led  to  a  public  censure  of  Cooper's  behavior,  but  for  the 
successful  delay  tactics  of  the  Federalists  until  such  time  as  they  gained 
legislative  control.248 


242.  In  Hammond's  words,  the  Federalists  chose  their  legislative  strategy  "for  the  purpose  of 
rendering  the  governor  odious,  in  consequences  of  the  rejection  of  the  Otsego  votes."  Hammond, 
supra  note  27,  at  77. 

243.  Young,  supra  note  27,  at  3 10. 

244.  In  arguing  for  impeachment,  Kent  made  this  case  to  the  legislature: 

It  is  generally  understood  that  about  1 100  VOTES  of  the  FREE  MEN  of  this  STATE 
were  committed  to  the  fire  unopened,  and  the  scale  of  election  turned.  Such  a 
calamitous  event  was  never  surely  within  the  contemplation  of  either  our  constitution 
or  laws.  If  both  of  them  had  been  duly  observed,  such  an  event  never  could  have 
occurred.  Somebody  therefore  is  highly  in  the  wrong,  and  somebody  is  highly 
responsible  for  maladministration.  If  such  an  occurrence  had  not  propagated  alarm  and 
enquiry  among  the  people  of  this  state,  it  would  have  argued  that  they  either  knew  not 
the  right  of  suffrage,  or  were  insensible  to  its  importance. 
N.Y.  Daily  Adver.,  Dec.  27,  1792. 

245.  Young,  supra  note  27,  at  320. 

246.  Mat  320-21. 

247.  Id.  at  321-22. 

248.  After  the  Federalists  gained  control  of  the  legislature  in  April  1793,  they  adopted  a 
resolution  declaring  that  the  complaints  against  Cooper's  conduct  had  been  "frivolous  and 
vexatious."  Hammond,  supra  note  27,  at  82.  But  they  did  not  then  attempt  to  unseat  Clinton  even 
though  his  new  gubernatorial  term  would  not  end  until  after  the  election  of  1 795.  See  Alexander, 
supra  note  148,  at  61-62.  They  did  attempt  to  deprive  Governor  Clinton  of  some  powers  of 
appointment,  a  partisan  move  that  came  back  to  haunt  them  once  Jay  won  in  1795.  See  id. 
Hammond  also  chided  the  Federalists  for  their  "unquestionably  party  vote"  in  attempting  to 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  73 


If  the  Federalists  had  been  in  control  of  the  legislature  in  the  summer  of  1792, 
would  they  have  used  this  power  in  an  effort  to  overturn  the  canvassing 
committee's  decision,  by  means  of  calling  a  constitutional  convention  for  this 
single  purpose  or  otherwise?  Hammond  thought  not:  "I  do  not  believe  that  such 
men  as  James  Kent  and  many  other  federal  members  would,  if  they  had  had  the 
power,  have  ventured  at  that  time,  by  legislative  enactments,  to  have  declared  the 
election  of  Gov.  Clintonf]  void. . .  ,"249  Hammond  has  the  advantage  of  temporal 
proximity,  but  the  evidence  on  this  point  is  hardly  conclusive.  The  sentiment  for 
unseating  Clinton  was  very  strong,250  and  it  just  might  have  been  strong  enough 
to  propel  the  Federalists  into  legislative  action  if  they  had  possessed  that  lever  to 
push.  In  any  event,  one  can  never  answer  this  kind  of  historical  counterfactual 
question  with  any  degree  of  certainty. 

What  actually  happened  is  that  Jay  decisively  won  the  gubernatorial  election 
of  1795. 251  Clinton  did  not  even  run  again  that  year.252  This  electoral  vindication 
of  Jay  proved  Hamilton's  strategy  successful.  Jay,  Kent,  and  the  other  Federalists 
who  felt  robbed  by  the  canvassing  committee  did  not  achieve  in  1792  the 
electoral  justice  they  were  looking  for  in  their  initial  responses  to  the  committee's 
ruling.  But  by  cooling  their  emotions  and  seeking  eventual  electoral  vindication 
instead  of  immediate  electoral  justice,  the  Federalists  were  able  the  next  time  to 
gain  the  prize  that  they  had  been  denied. 

V.  The  Aftermath  of  the  Dispute 

Jay  was  elected  governor  in  1795253  and  re-elected  in  1798,254  using  the  same 
election  laws  that  had  defeated  him  in  1792.  It  was  not  until  1799  that  the 
Federalists,  who  were  still  dominant  in  the  state  legislature  but  who  were  by  then 
facing  political  storm  clouds  on  the  horizon,255  made  changes  to  the  rules  for 
canvassing  votes  in  a  gubernatorial  election.256  The  changes  are  noteworthy,  for 
they  indicate  some  effort  to  correct  the  defects  that  led  to  the  disaster  of  1792. 
But  these  changes  did  not  include  an  "equally  biased"  tribunal  along  the  lines  that 
Kent  thought  necessary  in  order  to  assure  fairness  to  both  parties  in  an  electoral 


condemn  the  legislative  investigation  of  Cooper.  Hammond,  supra  note  27,  at  82-83.  Whether 
or  not  the  charges  against  Cooper  for  misconduct  at  the  Otsego  polls  in  1 792  were  ever  definitively 
proved  to  the  extent  that  the  Clintonians  claimed,  Hammond  protests  that  "surely  [they  were]  not 
frivolous."  Id.  at  83  (emphasis  in  original). 

249.  Hammond,  supra  note  27,  at  77. 

250.  See  ALEXANDER,  supra  note  148,  at  60-6 1 . 

251.  See  id.  at  65. 

252.  Id.  at  63. 

253.  Id.  at  65. 

254.  Id.  at  82-83. 

255.  The  Republicans'  desire  for  less  centralized  government  was  gaining  popularity  with 
voters.  See  HAMMOND,  supra  note  27,  at  1 15-20. 

256.  See  Act  of  Mar.  27,  1799,  ch.  51,  1799  N.Y.  Laws  362. 


74  INDIANA  LAW  REVIEW  [Vol.  44:23 


dispute  of  this  nature.257  Even  Kent  himself  apparently  never  pushed  for  this  sort 
of  reform,  despite  his  recognition  of  its  necessity.  His  failure  to  do  so,  along  with 
the  collective  failure  of  his  Founding  Generation  in  this  regard,  is  the  major 
legacy  of  this  episode.  He  and  they  saw  partisan  bias  as  the  problem  underlying 
the  canvassing  committee's  decision,  but  he  and  they  were  unable  to  develop  an 
institutional  mechanism  to  solve  that  problem. 

One  change  that  the  1 799  law  made  was  to  remove  county  sheriffs  from  the 
canvassing  process.258  More  than  that,  however,  the  1799  law  altered  the 
relationship  between  local  and  statewide  officials  in  the  counting  and  canvassing 
of  gubernatorial  ballots.  Rather  than  having  the  local  ballots  themselves 
transmitted  to  the  secretary  of  state,  a  procedure  which  triggered  the  1 792  dispute, 
the  1799  law  required  that  the  "inspectors"  of  the  polls  in  each  locality  "publicly" 
canvass  the  ballots  themselves  and  "set  down  in  writing"  the  canvassed  votes  for 
the  gubernatorial  candidates.259  The  statute  then  obligated  these  local  "boards  of 
inspection"  to  certify  their  written  tallies  and  submit  these  certificates  to  the 
county  clerk,  as  opposed  to  the  sheriff.260  Thereafter,  the  county  clerk  was 
required  to  submit  these  local  certificates,  instead  of  the  ballots  themselves,  to  the 
secretary  of  state.261 

Given  these  provisions  of  the  1 799  statute,  the  nature  of  the  statewide  canvass 
necessarily  was  different — and  much  more  limited — than  it  had  been  in  1792. 
The  statewide  canvassers  could  only  "aggregate"  all  the  local  tallies  and  review 
the  local  paperwork  for  superficial  accuracy.262  Unlike  in  1792,  they  had  no 
ability  to  decide  which  local  ballots  would  or  would  not  be  counted.  In  fact,  the 
1799  statute  ordered  the  local  inspectors,  "immediately"  after  completing  the 
certificates  of  their  local  canvass,  to  "destroy  the  poll  books  and  ballots  made  and 
taken  at  any  such  election."263  Thus,  although  the  Federalists  in  1792  had  been 
enraged  by  the  immediate  destruction  of  the  ballots  by  the  statewide  canvassing 
committee,  they  now  wanted  the  local  officials  to  engage  in  the  same  kind  of 
immediate  ballot  destruction  so  the  statewide  canvassers  could  never  obtain  them. 

The  1799  statute  also  changed  the  identity  of  the  statewide  officials 
responsible  for  this  narrowly  circumscribed  statewide  canvass.  No  longer  was 
there  a  joint  canvassing  committee  with  six  members  from  each  chamber  of  the 
state  legislature.  Instead,  a  new  state  canvassing  board  consisted  of  three 
executive  officials:  the  secretary  of  state,  the  treasurer,  and  the  comptroller.264 

Gone,  too,  was  the  earlier  statutory  language  making  the  canvassing 


257.  See  Kent,  supra  note  62,  at  44-45.  A  current  proposal  to  implement  the  kind  of  tribunal 
that  Kent  suggested  is  outlined  in  Foley,  supra  note  67. 

258.  See  Act  of  Mar.  27,  1799,  at  51,  1799  N.Y.  Laws  362,  362-63. 

259.  Id. 

260.  Id.  at  363. 

261.  Id. 

262.  Id. 

263.  Id. 

264.  Id. 


20 1 0]  THE  FOUNDERS '  BUSH  V.  GORE  75 


committee's  1792  ruling  "binding  and  conclusive."265  The  new  1799  statute  said 
"all  questions"  concerning  the  canvass  "shall  be  determined  by  the  opinion  of  a 
majority  of  the  [new  three-member]  board."266  The  combination  of  removing  the 
"binding  and  conclusive"  language  and  the  more  ministerial  nature  of  the  three- 
person  board's  authority  paved  the  way  for  the  development  of  judicial  review 
over  this  board's  decisions  during  the  nineteenth  century. 

By  making  these  changes,  the  Federalists  may  have  thought  that  they  had 
immunized  canvassing  process  from  the  kind  of  partisan  bias  that  tainted  the  1 792 
election.  If  so,  however,  they  were  shortsighted.  To  be  sure,  the  requirement  of 
"publicly"  canvassing  at  the  local  level  was  significant.  As  our  nation  has  learned 
repeatedly  throughout  its  history,  the  value  of  transparency  in  the  administration 
of  the  electoral  process  is  not  to  be  underestimated.  During  the  dispute  over  the 
2000  presidential  election  in  Florida,  this  lesson  was  learned  most  forcefully 
when  the  so-called  "Brooks  Brothers  riot"  occurred  after  the  local  board  in  Miami 
decided  to  recount  ballots  behind  closed  doors.267  Eight  years  later,  in  the  dispute 
over  Minnesota's  U.S.  Senate  election,  the  lesson  was  learned  much  more 
positively  when  the  state  canvassing  board  conducted  its  recount  proceedings  in 
full  public  view,  including  televising  it  over  the  Internet.268 

But  the  Federalists  of  1799  were  naive  if  they  thought  that  transparent 
canvassing  at  the  local  level,  with  nothing  more  than  ministerial  tallying  of  local 
certificates  by  state  officials,  would  be  enough  to  prevent  partisan  bias  from 
tainting  the  canvassing  process  in  a  high-stakes  election  with  an  apparently  razor- 
thin  margin.  As  ensuing  years  would  eventually  show,  it  would  be  possible  in 
some  circumstances  to  claim  that  partisan  bias  tainted  the  decisions  of  local 
election  officials  even  if  those  decisions  were  required  to  be  on  public  display.269 
Moreover,  if  a  dispute  of  statewide  significance  emerged  over  the  allegedly 
improper  conduct  of  local  election  officials,  then  what  statewide  institution  would 
adjudicate  that  dispute,  and  would  that  institution  itself  be  immune  from  partisan 
bias?  Even  if  the  underlying  ballots  were  immediately  destroyed  (as  required  by 
the  1799  statute),270  creative  lawyers,  working  on  behalf  of  competitive 
candidates  determined  to  press  any  claim  that  might  prevail,  could  concoct 
arguments  that  the  local  error  required  a  new  election  or  some  other  remedy.  If 


265.  Compare  Act  of  Feb.  13,  1787,  ch.  15,  1787  N.Y.  Laws  371,  379,  with  Act  of  Mar.  27, 
1799,  ch.  51,  1799  N.Y.  Laws  362. 

266.  Act  of  Mar.  27,  1799,  ch.  51,  1799  N.Y.  Laws  362,  364. 

267.  See  Dexter  Filkins  &  Dana  Canedy,  Protest  Influenced  Miami-Dade 's  Decision  to  Stop 
Recount,  N.Y.  Times,  Nov.  24,  2000,  at  A41. 

268.  Foley,  supra  note  121. 

269.  For  example,  the  famous  photograph  of  a  Florida  ballot  counter  lifting  his  glasses  to  hold 
a  punch-card  ballot  up  to  the  light,  readily  available  on  a  "Google  images  search,"  did  nothing  to 
assuage  fears  that  this  exercise  of  local  discretion  would  improperly  swing  the  2000  presidential 
election  for  Gore.  It  was  precisely  this  fear  that  caused  the  U.S.  Supreme  Court  to  rule  that  these 
local  officials,  despite  the  transparency  of  the  process,  had  excessive  administrative  discretion 
under  the  Fourteenth  Amendment. 

270.  Act  of  Mar.  27,  1799,  ch.  51,  1799  N.Y.  Laws  362,  363. 


76  INDIANA  LAW  REVIEW  [Vol.  44:23 


the  statewide  institution  hearing  that  argument  was  predisposed  to  be  sympathetic 
because  of  its  members'  partisan  affiliations,  then  the  risk  of  partisanship  tainting 
the  outcome  of  the  election  remained  despite  the  reforms  of  1799. 

It  would  not  be  until  the  middle  of  the  nineteenth  century  that  New  York 
statutory  law  would  build  explicit  bipartisan  representation  into  the  structure  of 
its  local  electoral  institutions271 — and  not  until  1894  that  New  York  would  put 
this  requirement  of  bipartisan  representation  into  its  constitution.272  In  1799, 
however,  the  Founding  Generation  was  not  prepared  to  adopt  this  type  of 
measure,  despite  Kent's  prescient  recognition  of  the  need  for  a  body  with 
bipartisan  balance.273 

To  build  bipartisanship  into  the  structure  of  an  official  canvassing  board, 
whether  state  or  local,  would  be  to  acknowledge  the  permanence — even 
acceptability — of  two-party  electoral  competition  to  a  degree  that  the  Founders 
were  never  able  to  do.  Kent  might  have  wanted  an  equal  number  of  Federalists 
and  Clintonians  on  the  statewide  canvassing  committee,274  but  he  never  said  he 
wanted  a  law  that  would  have  specifically  required  an  equal  number  of  members 
from  each  party  on  whatever  tribunal  was  authorized  to  decide  whether  or  not  to 
count  the  disputed  Otsego  ballots.  To  appoint  a  member  of  an  adjudicatory 
tribunal  (which  Kent  considered  akin  to  a  court)  as  an  explicit  representative  or 
affiliate  of  a  political  party  would  have  been  anathema  to  his  and  the  Founding 
Generation's  sense  of  civic  and  judicial  virtue.  The  temptation  to  use  the  power 
of  an  adjudicatory  office  to  achieve  a  partisan  victory  should  be  overcome  by  a 
resolute  commitment  to  the  paramount  obligation  to  act  honorably  in  office. 

Ultimately,  the  Founding  Generation  saw  the  problem  in  1 792  as  primarily 
a  personal  deficiency  in  the  degree  of  political  virtue  possessed  by  the  members 
of  the  canvassing  committee  and  those  who  appointed  them,  rather  than  a 
structural  deficiency  in  the  constitutional  apparatus  designed  to  compensate  for 
the  fact  that  "men  are  not  angels,"275  and  politicians  are  not  always  honorable.  By 
1799,  the  Founding  Generation  surely  knew  that  its  system  of  government  was 
afflicted  by  partisanship.  Yet  the  Founders  still  hoped  that  at  crucial  moments 
partisan  pressures  and  impulses  would  be  resisted  by  honorable  men  acting  on  the 
basis  of  impartial  virtue.  They  did  not  want  to  surrender  to  the  cynical 
expectation  that  all  political  conduct,  at  least  in  the  midst  of  electoral  competition 
for  premier  positions  such  as  governor  or  the  President,  would  be  based  on 
partisanship  rather  than  virtue. 

The  best  indication  of  the  desire  to  hold  on  to  the  pre-partisan  sense  of 
obligation  to  impartial  virtue  comes  from  Jay  himself.    The  setting  was  the 


27 1 .  Delos  F.  Wilcox,  Party  Government  in  the  Cities  of  New  York,  4  POL.  SCI.  Q.  682  ( 1 899). 

272.  Charles  Z.  Lincoln,  3  The  Constitutional  History  of  New  York:  1 894- 1 905,  at 
129-33(1906). 

273.  See  supra  text  accompanying  note  67. 

274.  See  supra  text  accompanying  notes  66-67. 

275.  The  Federalist  No.  5 1 ,  at  262  (James  Madison)  ("If  men  were  angels,  no  government 
would  be  necessary.  If  angels  were  to  govern  men,  neither  external  nor  internal  controls  on 
government  would  be  necessary."). 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  11 


presidential  election  of  1 800.  By  May  of  that  year,  it  became  apparent  that  New 
York  would  prove  decisive  in  the  Electoral  College  battle  between  Adams,  the 
Federalist  candidate  for  reelection,  and  Jefferson,  the  Democratic-Republican 
challenger.276  During  the  previous  month's  legislative  elections  in  New  York,  the 
Democratic-Republicans  won  a  decisive  majority  of  seats.277  Because  New  York 
at  the  time  permitted  its  legislature  to  appoint  the  state's  presidential  electors, 
everyone  knew  that  all  of  New  York's  Electoral  College  votes  were  posed  to  go 
to  Jefferson,  not  Adams.278  In  response,  Hamilton  formulated  a  plan  that  would 
enable  Adams  to  win  at  least  some  of  New  York's  Electoral  College  votes: 
Governor  Jay  would  call  the  lame-duck,  Federalist-controlled,  legislature  back 
into  session  to  pass  a  statute  that  would  divide  the  state  into  electoral  districts, 
resulting  in  a  popular  vote  for  one  of  the  state's  presidential  electors  in  each 
district.279  Because  certain  parts  of  the  state  were  still  dominated  by  Federalists, 
the  lame-duck  legislature  could  draw  the  district  lines  in  a  way  that  would 
position  Adams  to  win  as  many  as  half  of  the  state's  twelve  Electoral  College 
votes,280  thereby  likely  giving  Adams  an  outright  overall  Electoral  College 
majority  nationwide.  It  was  an  ingenuous  scheme,  one  worthy  of  Hamilton  as  the 
brilliant  partisan  tactician,  who  raised  it  with  Jay  in  a  letter.281 

Jay,  to  his  credit,  would  have  none  it.  He  wrote  on  the  back  of  Hamilton's 
letter:  "Proposing  a  measure  for  party  purposes,  which  I  think  it  would  not 
become  me  to  adopt."282  In  1800,  therefore,  Jay  was  able  to  resist  partisanship 
and  act  instead  based  on  his  conception  of  impartial  virtue.  His  decision  made 
a  difference.  If  he  had  cooperated,  and  the  lame-duck  legislature  had  acted 
according  to  Hamilton's  plan,  then  Adams  would  have  won  a  majority  of 
Electoral  College  votes.283 

Jay's  decision  to  act  honorably  in  1800  may  have  been  affected  by  the 
partisan  cause  of  his  own  defeat  in  1 792.  At  least  one  historian  has  suggested  this 
link: 

Jay  was  a  stalwart  Federalist.  .  .  .  [H]e  regarded  the  advent  of  Jefferson 
and  his  ideas  with  as  much  alarm  as  Hamilton,  and  he  knew  as  well  as 
Hamilton  that  the  adoption  of  the  district  plan  of  choosing  electors  would 
probably  defeat  the  Virginian;  but  to  call  an  extra  session  of  the 
Legislature  for  the  purpose  indicated  by  Hamilton,  would  defeat  the 


276.  See  Weisberger,  supra  note  12,  at  229. 

277.  3  JAY,  supra  note  1 34,  at  4 1 1 . 

278.  See  HAMMOND,  supra  note  27,  at  144;  WEISBERGER,  supra  note  12,  at  238-39. 

279.  See  3  JAY,  supra  note  134,  at  412-13. 

280.  Even  if  Adams  could  not  win  half  of  the  electoral  votes,  districting  would  have  assured 
him  at  least  four  electoral  votes.  See  Hammond,  supra  note  27,  at  144-45. 

281.  3  Jay,  supra  note  134,  at  412-14. 

282.  Hammond,  supra  note  27,  at  145. 

283.  3  Jay,  supra  note  134,  at  41 1-14.  As  it  was,  Adams  fell  short,  and  Jefferson  ended  up 
in  a  tie  with  Burr,  which  sent  the  election  to  the  U.S.  House  of  Representatives.  Weisberger, 
supra  note  12,  at  256-57. 


78  INDIANA  LAW  REVIEW  [Vol.  44:23 


expressed  will  of  the  people  as  much  as  the  action  of  the  state  canvassers 
defeated  it  in  1792  ?M 

The  point  of  this  passage  is  clear.  It  is  not  that  Jay  was  lacking  in  strong  partisan 
impulses;  rather,  he  was  able  to  overcome  those  impulses  because  of  his  fidelity 
to  what  he  believed  honor  required  of  him,  and  his  sense  of  honor  was  reinforced 
by  his  own  experience  in  1792.  Rather  than  making  Jay  vengeful,  his  defeat  at 
the  hands  of  the  canvassing  committee  bolstered  his  own  commitment  to  do  the 
right  thing  when  he  was  in  a  similar  position  to  affect  the  outcome  of  a  major 
election.  As  this  historian  summed  it  up,  Jay  "wisely  refused  to  do  what  the 
people  of  the  State  had  so  generally  and  properly  condemned  in  the 
canvassers."285 

But  Jay's  heroic  act  of  virtue  and  resistance  of  partisanship  in  1800  signifies 
the  end  of  an  era  rather  than  an  example  that  others  would  follow  in  years  to 
come.  "[N]ot  a  governor  who  followed  Jay  in  these  eventful  years,"  the  same 
historian  acknowledged,  "would  have  declined  under  similar  circumstances  to 
concur  in  Hamilton's  suggestion."286  The  use  of  official  power  for  partisan 
electoral  objectives  quickly  became  the  norm  and  expectation. 

Yet  the  election  law  of  1799  was  not  written  to  handle  that  development.  It 
was  a  product  of  an  earlier  era,  when  there  was  still  some  lingering  sentiment  that 
officials  might  act  like  Jay  did  in  1 800.  The  Founding  Generation  simply  did  not 
equip  New  York,  nor  the  nation,  for  what  was  needed  in  a  world  where 
partisanship  reigned  with  no  resistance  from  virtue. 

VI.  The  Lessons  for  Us  of  1 792 

Our  own  generation  knows  what  it  is  like  to  have  partisanship — or  at  least  the 
appearance  of  it — taint  the  adjudication  of  a  major  disputed  election.  Whether 
we  supported  Bush  or  Gore,  we  were  embarrassed  by  the  fact  that  the  U.S. 
Supreme  Court  split  5-4  and  did  so  after  the  Florida  Supreme  Court  split  4-3,  with 
both  tribunals  (despite  their  opposite  outcomes)  seemingly  affected  by  the 
partisan  allegiances  of  their  majorities.  We  can  easily  imagine,  then,  how  Jay  and 
his  supporters  must  have  felt  when  they  saw  themselves  dealt  the  injustice  of  a 
partisan  7-4  canvassing  committee  decision.  We  can  imagine,  too,  the 
embarrassment  that  some  of  Clinton's  supporters,  including  his  Virginian  allies, 
felt  by  the  partisan  way  in  which  he  received  his  electoral  victory. 

From  our  vantage  point,  now  a  decade  after  Bush  v.  Gore,  we  know  also  the 
experience  of  letting  several  electoral  cycles  pass  without  addressing  the 
institutional  inadequacies  that  enable  the  taint  of  partisanship  to  occur.  To  be 
sure,  we  have  eliminated  hanging  chads,  butterfly  ballots,  and  some  of  the  other 
features  of  our  voting  process  that  provided  the  foundation  for  Bush  v.  Gore  to 
occur.  But  those  operational  reforms  are  much  like  eliminating  sheriffs  from  the 
voting  process,  as  New  York  did  after  1792.  Changing  the  rules  for  operating 


284.  Alexander,  supra  note  148,  at  98-99  (emphasis  added). 

285.  Id.  at  93. 


285.  Mat 93. 

286.  Id. 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  79 


the  voting  process  does  not  by  itself  prevent  partisan  bias  from  controlling  the 
resolution  of  any  dispute  that  might  arise  concerning  the  process.  Some  grounds 
for  a  potential  dispute  are  gone.  For  example,  there  is  now  no  more  fighting  over 
hanging  chads,  just  like  there  is  no  more  fighting  over  the  transmission  of  ballots 
by  sheriffs  whose  commissions  have  expired.  Yet,  as  we  surely  understand  after 
Minnesota's  experience  in  2008,  eliminating  some  grounds  for  a  potential  dispute 
does  not  eradicate  all  such  grounds.  Franken  and  Coleman  learned  that  they 
could  conduct  the  same  basic  dispute  over  absentee  ballots  that  Bush  and  Gore 
did  over  hanging  chads.287  Thus,  as  a  nation,  we  stand  today  as  New  York  did  in 
1 800 — the  electoral  reforms  that  we  have  adopted  in  response  to  the  relatively 
recent  crisis  still  leave  us  vulnerable  to  a  new  episode  in  which  the  partisan  bias 
of  incumbent  officials  dictates  the  outcome  of  a  dispute  over  the  rules  governing 
a  major  election. 

Now  a  decade  into  the  twenty-first  century,  we  are  unlikely  to  find  a  John  Jay 
whose  virtue  in  office  would  save  us  from  this  institutional  vulnerability.  As  a 
nation,  since  1 800  we  have  lived  through  two  centuries  of  incessant  two-party 
electoral  competition  for  the  presidency  and  other  high  offices.  We  know  also 
that  this  two-party  competition  is  not  merely  permanent;  it  is,  in  an  important 
sense  not  recognized  by  the  Founders,  appropriate.  Today,  neither  Democrats  nor 
Republicans  are  disloyal  to  the  Republic  and  its  Constitution.  By  contrast,  in  the 
1790s,  both  Federalists  and  Democratic-Republicans  thought  the  other  party  was 
betraying  the  principles  they  had  just  enshrined  in  1787.  Today,  Democrats  and 
Republicans  offer  the  electorate  a  choice  between  left-of-center  and  right-of- 
center  policies,  which  the  electorate  is  entitled  to  oscillate  between  depending  on 
its  collective  mood.  Thus,  we  can  accept  in  a  way  that  the  Founders  could  not 
that  politicians  inevitably  will  be  partisans — and  therefore,  fair  electoral 
competition  between  the  two  parties  requires  an  institution  that  protects  the 
resolution  of  disputed  elections  from  becoming  hijacked  by  politicians  from 
either  party  seeking  an  electoral  advantage.  Unlike  the  Founders  living  under  the 
beginning  of  their  own  regime  in  1790s,  we  can  readily  see  now  that  we  lack  this 
kind  of  institution,  but  that  we  very  much  need  one. 

Looking  to  the  future,  as  we  endeavor  to  design  this  missing  piece  of 
constitutional  architecture  and  figure  out  how  procedurally  to  put  it  into  place,  we 
can  ask  ourselves  what  particular  lessons  we  should  draw  from  New  York's 
disputed  election  of  1792.  We  should  not  attempt,  of  course,  to  learn  from  this 
one  episode  alone.  We  should  instead  consider  it  in  the  context  of  the  full  sweep 
of  disputed  elections  in  U.S.  history.288  That  history  includes,  most  prominently, 


287.  In  2010,  we  are  again  learning  that,  much  to  our  surprise,  it  is  also  possible  to  re-wage 
these  basic  battles  over  the  spelling  of  write-in  candidates.  See  supra  note  120. 

288.  The  historian  Alexander,  writing  in  1906,  likened  the  furor  over  the  canvassing 
committee's  ruling  in  1792  as  comparable  to  the  commotion  that  would  later  occur  in  the  Hayes- 
Tilden  election  of  1876:  "[T]he  people  of  the  State  were  aroused  to  the  wildest  passion  of  rage, 
recalling  the  famous  Tilden-Hayes  controversy  three-quarters  of  a  century  later."  Alexander, 
supra  note  148,  at  59.  Federalists  called  Clinton  "the  Usurper,"  just  as  Democrats  later  would  call 
Hayes  "His  Fraudulency."  Id.  at  61. 


80  INDIANA  LAW  REVIEW  [Vol.  44:23 


the  Hayes-Tilden  election  at  the  time  of  the  nation's  centennial.  It  now  also 
encompasses  Bush  v.  Gore  as  well  as,  most  recently,  Coleman  v.  Franken.  The 
future  should  be  built  on  lessons  learned  from  the  entire  past. 

Still,  the  Clinton-Jay  dispute  of  1792  was  the  nation's  first  major  dispute  of 
its  kind  and,  therefore,  teaches  some  distinctive  truths.  Some  of  these  truths, 
although  significant,  are  less  weighty  than  others.  One  such  truth  is  the  inevitable 
propensity  towards  litigation  as  partisans  attempt  to  prevail  on  legal  grounds 
when  a  close  election  is  mired  in  a  ballot-counting  dispute.  As  we  have  seen, 
large  legal  teams  were  assembled  on  both  sides  in  1792,  long  before  they  were 
in  2000  or  2008.  When  designing  an  electoral  dispute  resolution  system  for  the 
future,  we  should  accept  this  propensity  rather  than  wish  it  would  disappear. 

Indeed,  we  should  be  grateful  that  candidates  turn  to  lawyers  rather  than 
soldiers  to  fight  their  battles  for  control  of  the  coveted  high  offices  during 
electoral  disputes.  Relying  on  attorneys  indicates  a  willingness  to  settle  the 
dispute  according  to  the  rule  of  law  rather  than  through  the  force  of  arms. 
Perhaps  the  most  positive  feature  of  our  nation's  experience  with  disputed 
elections  is  that,  apart  from  some  notable  exceptions  in  the  nineteenth  century,289 
we  have  largely  escaped  the  need  to  rely  on  troops  to  quell  civil  unrest  during  a 
dispute  over  an  electoral  outcome.  Even  when  candidates  have  been  convinced 
that  the  legal  procedures  used  to  resolve  the  dispute  were  deeply  flawed  (or, 
worse,  corrupted  by  partisan  bias),  they  have  largely  decided  to  accept  the  result 
that  the  legal  procedures  generated  simply  because  the  result  emanated  from  those 
legal  procedures . 

Respect  for  the  rule  of  law  is  usually  enough  to  cause  a  candidate  to  abide  by 
the  deeply  flawed  result.  The  Hayes-Tilden  dispute  was  one  such  situation. 
Tilden  considered  the  8-7  vote  of  the  Electoral  Commission  against  him  both 
corrupt  and  unconstitutional — and  yet  the  Commission  had  been  established  by 
a  procedurally  proper  act  of  Congress,  and  its  constitutionality  had  not  been 
challenged  in  a  judicial  forum.290  Thus,  the  Commission's  ruling  had  all  the 
authority  of  a  final  Supreme  Court  decree,  and  Tilden  was  not  about  to  challenge 
it.  Likewise,  Gore  and  his  advisers  undoubtedly  considered  the  majority  decision 
in  Bush  v.  Gore  egregiously  wrong  if  not  corrupt,  yet  it  was  the  product  of  a 
conventional  writ  of  certiorari  to  the  Court  and  thus  within  the  scope  of  the 
Court's  jurisdiction  under  law  (however  improperly  that  jurisdiction  might  have 
been  exercised).291 

In  much  the  same  way,  Jay  and  his  legal  advisers  eventually  accepted  the 
canvassing  committee's  7-4  ruling  (even  though  they  considered  it  egregiously 
corrupt)  because  it  fell  within  the  committee's  jurisdiction  under  the  then-existing 
election  law.  In  this  respect,  as  some  of  them  recognized  at  the  time,  they  set  an 
important  precedent  in  favor  of  settling  disputed  elections  through  the  rule  of  law 


289.  The  book  that  Steven  Huefher  and  I  are  writing  will  discuss  these  nineteenth-century 
exceptions,  including  the  so-called  Buckshot  War  in  Pennsylvania  and  the  Brooks-Baxter  War  in 
Arkansas.  Our  historical  research  on  those  episodes  is  currently  in  progress. 

290.  See  Colvin  &  Foley,  supra  note  2,  at  5 1 5- 1 6. 

29 1 .  See  generally  TOOBIN,  supra  note  74. 


20 1 0]  THE  FOUNDERS '  BUSH  V.  GORE  8 1 


rather  than  by  resorting  to  violence.  Consider  how  differently  American  history 
might  have  unfolded  if  Jay  had  captured  the  governor's  office  through  the  use  of 
force  in  1792,  or  even  if  he  had  simply  attempted  to  do  so  but  his  use  of  force  had 
been  crushed.  Jay's  self-restraint,  conversely,  may  have  helped  to  pave  the  way 
for  similar  self-restraint  by  Tilden  and  Gore,  among  others. 

Another  lesson  to  be  learned  from  the  Clinton- Jay  dispute  of  1 792  concerns 
the  deep-rooted  nature  of  the  jurisprudential  debate  between  strict  and  lenient 
enforcement  of  election  statutes.  As  a  review  of  the  1 792  dispute  reveals,  this 
basic  jurisprudential  debate  has  been  with  us  from  the  very  beginning.  The  1 792 
dispute  also  demonstrates  that  this  jurisprudential  debate  involves  competing 
interpretations  of  our  nation's  most  elementary  commitment  to  the  existence  of 
democratic  elections.  Proponents  of  both  strict  and  lenient  enforcement  appeal 
to  the  fundamental  value  of  a  free  and  fair  vote  among  citizens.  Yet  each  side  of 
this  jurisprudential  debate  appeals  to  this  fundamental  value  in  a  different  way. 

As  a  nation,  we  are  essentially  stuck  in  the  same  place  regarding  this  debate 
as  we  were  in  1792.  The  arguments  on  each  side  in  2000  and  2008  between  strict 
and  lenient  enforcement  were  not  much  more  advanced  or  sophisticated  than  they 
were  in  1792.  Bush  and  Franken  urged  strict  enforcement  to  protect  the  integrity 
of  the  voting  process,  just  as  Clinton's  supporters  did  in  1792,  and  neither  added 
significantly  to  that  side  of  the  debate  to  what  Randolph  eloquently  wrote  on 
behalf  of  Clinton.  Similarly,  Gore  and  Coleman  urged  lenient  enforcement,  like 
Jay's  team  did,  but  none  of  their  arguments  against  voter  disenfranchisement 
were  more  nuanced  or  elaborate  than  what  Trumbull  said  in  support  of  Jay. 

Thus,  in  the  future,  if  the  debate  between  strict  and  lenient  enforcement  is  to 
move  beyond  the  same  recitation  of  these  two  ancient  arguments,  there  will  need 
to  be  some  mechanism  to  explain  the  circumstances  in  which  strict  enforcement 
should  prevail  as  opposed  to  where  lenient  enforcement  controls.  A  promising 
development  along  these  lines  is  the  idea  that  a  respected  jurisprudential  body 
like  the  American  Law  Institute  might  formulate  a  code  or  set  of  principles  to 
elucidate  these  respective  situations.  This  nationally  formulated  code  or  set  of 
principles  might  then  become  adopted  seriatim  in  the  several  states.  This  could 
become  increasingly  refined  as  more  and  more  states  settle  more  and  more 
disputes  according  to  precedents  set  within  this  evolving  body  of  collective 
wisdom,  rather  than  falling  back  upon  the  generic  debate  between  strict  and 
lenient  enforcement.  Hopefully,  well-reasoned  positive  law  for  the  resolution  of 
disputed  elections  might  emerge  from  this  process,  along  the  lines  hinted  at  by 
James  Monroe's  observation  of  the  1792  dispute  in  New  York. 

But  even  if  a  well-reasoned  corpus  of  law  emerged  from  this  kind  of  process, 
each  state  would  need  an  institution  that  could  be  entrusted  with  the  fair-minded 
and  evenhanded  application  of  this  jurisprudence  to  whatever  particular  disputed 
election  might  next  occur.  As  James  Kent  could  attest,  what  good  is  a  well- 
reasoned  corpus  of  election  law  if  it  is  susceptible  to  manipulation  by  an 
authoritative  tribunal  bent  on  achieving  a  partisan  outcome?  Thus,  a  major  lesson 
to  be  learned  from  1792  is  one  that  we  already  know:  we  need  impartial 
institutions  to  adjudicate  high-stake  disputed  elections  like  the  presidential 
election  of  2000  or  Minnesota's  U.S.  Senate  election  of  2008.  We  need  these 
impartial  institutions  to  be  structured  so  that  they  will  not  be,  or  appear  to  be, 


82  INDIANA  LAW  REVIEW  [Vol.  44:23 


predisposed  to  tilt  their  decisions  towards  one  candidate  or  another  based  on  the 
partisanship  of  the  governing  body. 

As  important  as  this  institutional  lesson  is,  perhaps  an  even  more  important 
lesson  to  learn  from  1792  is  why  our  nation  was  not  given  this  kind  of  institution 
from  the  beginning  and  thus  why,  insofar  as  we  still  do  not  have  one  for  disputed 
presidential  elections,  we  are  obligated  to  create  one  for  ourselves  and  our 
posterity.  Simply  put,  two-party  electoral  politics  were  too  new  to  the  Founders 
in  the  1790s  for  them  to  address  this  institutional  need.  That  fact,  plus  their 
inexperience  with  chief  executive  elections,  meant  that  they  were  entirely 
unprepared  for  partisan  influences  in  a  disputed  gubernatorial — or 
presidential — election.  They  gave  no  thought  to  what  tribunal  would  be 
appropriate  in  the  event  that  the  outcome  of  a  presidential  election  turned  on  a 
dispute  over  ballots  cast  for  a  state's  presidential  electors. 

The  fact  that  the  Founders  failed  to  anticipate  this  need  does  not  mean  that 
it  is  not  necessary.  On  the  contrary,  members  of  the  Founding  Generation  who 
lived  through  the  first  few  decades  of  the  nineteenth  century  began  to  understand 
their  omission  and  its  significance.  Late  in  life,  Madison  himself  acknowledged 
that  the  Framers  of  the  Constitution  had  given  too  little  attention  to  the  topic  of 
presidential  elections.292 

Even  more  on  point,  when  Kent  wrote  his  famous  Commentaries  on 
American  Law  in  the  1820s,  he  expressly  acknowledged  that  the  Framers  had 
failed  to  consider  the  possibility  of  a  partisan  dispute  in  the  context  of  counting 
Electoral  College  votes  for  president.  Undoubtedly  reflecting  his  own  experience 
in  New  York's  disputed  gubernatorial  election  of  1792,  Kent  ominously  wrote 
that  a  similar  type  of  dispute  in  a  presidential  election  "will  eventually  test  the 
goodness[]  and  try  the  strength  of  the  [Constitution."293  In  other  words,  Kent 
knew  that  there  was  a  serious  hole  in  the  electoral  infrastructure  created  by  the 
Constitution  and  that  the  Republic  would  be  vulnerable  unless  and  until  this  gap 
were  filled. 

A  few  years  later,  another  prominent  constitutional  scholar  of  the  early 
Republic,  Joseph  Story,  picked  up  on  Kent's  point  and  amplified  it.  Story  himself 
had  lived  through  a  disputed  gubernatorial  election  in  Massachusetts  in 
1 806 — which,  like  New  York's  in  1792,  had  become  mired  in  partisan  efforts  to 
manipulate  the  outcome  by  disqualifying  ballots  of  eligible  voters.  Knowing  his 
own  experience  there,  as  well  as  New  York's  earlier  episode,  Story  expressed 
even  more  concern  about  the  possibility  of  a  disputed  presidential  election  than 
Kent  had.  Although  the  Framers  of  the  Constitution  had  made  "[n]o  provision" 


292.  See  Donald  O.  Dewey,  Madison 's  Views  on  Electoral  Reform,  1 5  W.  POL.  Q.  1 40  ( 1 962) 
(discussing  letters  Madison  wrote  in  the  1 820s  advocating  reforming  the  Electoral  College  system). 
Madison's  letter  of  August  23, 1823  to  George  Hay  expressly  acknowledged  Madison's  subsequent 
judgment  that  the  Constitutional  Convention  of  1 787  did  not  give  adequate  attention  to  the  method 
of  presidential  elections:  "as  the  final  arrangement  [for  presidential  elections]  took  place  in  the 
latter  stage  of  the  Session,  it  was  not  exempt  from  a  degree  of  the  hurrying  influence  produced  by 
fatigue  and  impatience  in  all  such  Bodies." 

293.  James  Kent,  1  Commentaries  on  American  Law  273-74  (3d  ed.  1836)  (1826). 


2010]  THE  FOUNDERS'  BUSH  V.  GORE  83 


for  the  problem  because  it  simply  had  not  occurred  to  them,  Story  found  it  "easily 
to  be  conceived  that  very  delicate  and  interesting  questions  may  occur,  fit  to  be 
debated  and  decided  by  some  deliberative  body."294 

Therefore,  the  point  is  that  we  must  build  for  the  future  what  the  Founders 
themselves  were  unable  to  build  for  us.  In  doing  so,  we  would  not  be 
contravening  their  vision  for  a  well-ordered  republic.  Instead,  by  adding  a 
missing  but  crucial  piece  of  constitutional  architecture  that  they  omitted,  we 
would  be  enhancing  the  project  of  constitutional  democracy  that  they  began  for 
us. 

Madison,  Jay,  Kent,  and  the  other  Founders  all  wanted  the  operation  of 
constitutional  democracy  to  satisfy  justice  according  to  impartial  standards.  They 
emphatically  did  not  want  their  handiwork  to  become  sullied  by  partisan  avarice. 
Jay,  the  author  of  New  York's  constitution,  certainly  did  not  anticipate  that  the 
competition  to  win  a  gubernatorial  election  would  become  an  unfair  fight  because 
of  partisan  manipulation  of  the  institutions  established  under  his  constitution. 

It  turns  out  that  the  Founders  did  not  know  how  to  achieve  their  own 
objectives  in  the  context  of  a  disputed  election  for  chief  executive.  Only  later 
would  Founders,  like  Madison  and  Kent,  recognize  the  need  to  update  their 
project.  Therefore,  accepting  the  invitation  of  these  Founders  themselves,  we 
must  complete  their  own  work  by  adding  the  kind  of  impartial  institution  for 
adjudicating  disputed  elections  that  they  originally  could  not  foresee  as  necessary. 


294.  Joseph  Story,  Commentaries  on  the  Constitution  of  the  U.S.  327  ( 1 833). 


84  INDIANA  LAW  REVIEW  [Vol.  44:23 

Appendix 

Timeline  of  1792  Election  Dispute 

Jan.  13  Smith  sends  resignation 

Feb.  18  Smith's  commission  expires 

March  30  Gilbert's  commission  issued 

April  3  Smith  elected  town  supervisor 

April  24-28  balloting;  Smith  supervises  polls 

April  30  Van  Rensselaer  gives  commission  to  Cooper 

May  1  in  new  job,  Smith  rules  on  ballots 

April  29-May  3  ballots  in  Smith  and  Cooper's  store 

May  3  as  sheriff,  Smith  deputizes  Goes 

May  1 1  Cooper  gives  Gilbert  commission 

May  29-June  12  canvassing  committee  meets 

June  12  Federalists  begin  to  explore  options 

June  15  "Gracchus"  calls  for  public  agitation;  unrest  begins 

June  27-29  Madison,  Monroe  write  their  views  about  the  NY  dispute 

July  1  Clinton  inaugurated  for  new  term 

July  2  Jay  in  Albany  seems  willing  to  challenge  Clinton's  victory 

July  10  King  writes  of  Jay's  single-purpose  convention  plan 

July  16  Jay  in  New  York  City  backs  away  from  challenge 

July  25  Hamilton  writes  King  to  oppose  Jay's  convention  plan 

Aug.  24  Troup  tries  to  rekindle  Federalist  challenge;  Hamilton 

nixes  it 


"Celebrating"  the  Tenth  Anniversary  of  the  2000 

Election  Controversy:  What  the  World  Can 

Learn  from  the  Recent  History  of  Election 

Dysfunction  in  the  United  States 


Nathaniel  Persily* 


Introduction 

For  scholars  in  the  United  States  who  study  election  law  and  administration, 
the  2000  presidential  election  represented  a  watershed  event.  It  humbled  those 
who  thought  that  the  world's  leading  democracy  had  mastered  the  mechanics  of 
running  an  election.  It  also  generated  interest  to  look  outward  for  best  practices 
and  models  to  emulate.  When  U.S.  scholars  and  reformers  did  so,  however,  we 
realized  that  certain  intransigent  structural  features  of  the  U.S.  political  system 
made  reform  particularly  challenging.  By  highlighting  these  obstacles,  however, 
this  exploration  of  different  modes  of  administration  lent  itself  to  an  assessment 
of  the  various  dimensions  of  the  problem  that  all  democracies  encounter.  This 
Article  describes  the  multiple  facets  of  the  election  administration  "problem"  that 
all  democracies  confront,  in  light  of  the  decade  of  introspection  the  United  States 
has  undertaken. 

This  Article  begins  by  summarizing  the  controversy  that  led  to  the  current  era 
of  reform  of  the  U.S.  electoral  system.  It  then  moves  to  a  discussion  of  the 
categories  of  administrative  and  technical  challenges  that  all  successful 
democracies  must  confront  on  some  level.  It  then  concludes  with  a  description 
of  metrics  by  which  we  can  measure  democratic  success. 

Before  entering  into  that  discussion,  it  may  be  worth  summarizing  three 
features  of  the  U.S.  electoral  system  which  exist  to  a  greater  or  lesser  extent  in 
other  countries,  but  which,  in  combination,  make  reform  particularly  formidable 
for  the  United  States.  The  first  glaring  institutional  feature  evident  to  even  the 
most  casual  observer  of  the  U.S.  electoral  system  is  the  extreme  decentralization 
of  administrative  responsibilities  and  policymaking.1  Most  decisions  concerning 


*  Charles  Keller  Beekman  Professor  of  Law  and  Political  Science,  Columbia  Law  School. 
Thanks  to  Michael  Pitts  for  helpful  comments.  Thanks  to  Shawn  Crowley  and  Jessica  Riggins  for 
excellent  research  assistance.  This  Article  is  adapted  from  lectures  given  to  the  Electoral  Institute 
of  Veracruz,  Mexico,  on  October  15-16,  2009. 

1 .  Eric  A.  Fischer  &  Kevin  J.  Coleman,  Cong.  Research  Serv.,  Election  Reform  and 
Local  Election  Officials:  Results  of  Two  National  Surveys  1  (2008),  available  at  http:// 
www.fas.org/sgp/crs/misc/RL34363.pdf;  Heather  K.  Gerken,  The  Democracy  Index:  Why 
Our  Election  System  Is  Failing  and  How  to  Fdc  It  1  (2009);  Richard  L.  Hasen,  Beyond  the 
Margin  of  Litigation:  Reforming  U.S.  Election  Administration  to  Avoid  Electoral  Meltdown,  62 
WASH.  &  LEE  L.  Rev.  937,  952  (2005);  George  M.  Guess,  Dysfunctional  Decentralization: 
Electoral  System  Performance  in  Theory  and  Practice  6  (Ctr.  for  Democracy  and  Election  Mgmt., 
Working  Paper  No.  6,  Apr.  20,  2009),  available  at  http://wwwl.american.edu/ia/cdem/pdfs/ 
Dysmnctional%20Decentralization%204-20.pdf. 


86  INDIANA  LAW  REVIEW  [Vol.  44:85 


election  administration  are  made  at  the  local,  usually  county,  level.2  Localities 
are  most  often  in  charge  of  decisions  concerning  ballot  design  and  technology, 
as  well  as  those  dealing  with  polling  place  allocation  and  administration.3  The 
result  is  a  patchwork  quilt  where  the  quality  of  democracy  often  varies  according 
to  the  fortuity  as  to  where  one  lives.4 

Related  to  the  emphasis  on  localized  control  is  the  reliance  on  relatively 
untrained  volunteers  as  the  point  of  contact  for  most  voters  on  Election  Day.  For 
the  most  part,  the  people  manning  the  polling  places  and  overseeing  the  voting 
process  are  unpaid  volunteers  who  have  had  minimal  (a  few  hours  worth  of) 
training.5  In  contrast  to  countries  where  civil  servants  administer  the  polls  or 
citizens  are  chosen  by  lot,6  the  United  States  relies  on  volunteers,  often 
individuals  chosen  or  courted  by  the  political  party  leaders  competing  in  the 
election.7 

Indeed,  the  extent  to  which  partisans — either  elected  or  appointed — are  in 
charge  of  U.S.  elections  at  the  state  level  sets  the  United  States  apart  from 
virtually  all  other  democracies.8  This  unenviable  distinction  seems  to  be  the  most 
entrenched  and  pernicious  of  the  three  pathologies — excessive  decentralization, 


2.  Fischer  &  Coleman,  supra  note  1 ,  at  1 . 

3.  Id.;  U.S.  Elections  Procedures:  Reforming  the  System  Will  Help  America  Vote  Act, 
America.GOV  (Apr.  2, 2008),  http://www.america.gov/st/usg-english/2008/April/200804232243 1 8 
eaifas0.8196635.html. 

4.  See  Hasen,  supra  note  1 ,  at  952;  see  also  David  C.  Kimball  &  Martha  Kropf,  The  Street- 
Level  Bureaucrats  of  Elections:  Selection  Methods  for  Local  Election  Officials,  23  REV.  OFPOL'Y 
Res.  1257,  1258  (2006)  (identifying  different  reasons  why  elections  are  implemented  differently 
in  different  locations). 

5 .  See  Hasen,  supra  note  1 ,  at  953 ;  see  also  Deborah  Hastings,  High  Voter  Turnout  Ups  Risk 
of  Election  Day  Errors,  USA  TODAY,  Feb.  25,  2008,  available  at  http://www.usatoday.com/ 
news/politics/2008-02-24-pollworker-problems_N.htm;  Alan  Wirzbicki,  Lines,  Malfunctions,  and 
Untrained  Poll  Workers  Plague  Some  States,  Bos.  Globe,  Nov.  8,  2006,  available  at 
http://www.boston.eom/news/nation/articles/2006/l  l/08/lines_malfunctions_and_ 
untrained_poll_workers_plague_some_states/;  Michael  C.  Dorf,  Florida  Strikes  Again:  What  the 
Latest  Election  Snafu  Says  About  Machines  and  Humans,  FindLaw  (Sept.  18,  2002), 
http://writ.news.findlaw.com/dorf/20020918.html;  Heather  Gerken,  The  Invisible  Election, 
Election  L.  Blog  (Nov.  16,  2008,  5:10  PM),  http://electionlawblog.org/archives/012471.html. 

6.  Ctr.  for  Democracy  &  Election  Mgmt.,  Building  Confidence  in  U.S.  Elections: 
Report  of  the  Commission  on  Federal  Election  Reform  55  (2005),  available  at  http://wwwl . 
american.edu/ia/cfer/report/full_report.pdf. 

7.  See  Christian  M.  Sande,  Where  Perception  Meets  Reality:  The  Elusive  Goal  of  Impartial 
Election  Oversight,  34  Wm.  MITCHELL  L.  Rev.  729,  730  (2008);  see  also  Kimball  &  Kropf,  supra 
note  4,  at  1261  (finding  that  most  local  election  officials  are  partisan  elected  administrators). 

8.  R.  Michael  Alvarez  et  al.,  Who  Should  Run  Elections  in  the  United  States?,  36  Pol'Y 
STUD.  J.  325,  328  (2008);  Shaheen  Mozaffar  &  Andreas  Schedler,  The  Comparative  Study  of 
Electoral  Governance— Introduction,  23  Int'l  Pol.  Sci.  Rev.  5,  16-17  (2002)  (identifying 
democracies  that  have  established  "structures  of  mutual  restraint"  in  which  political  parties  "concur 
in  the  appointment  of  members  of  the  national  election  commission"). 


20 1 0]  WHAT  THE  WORLD  CAN  LEARN  87 


unprofessional  management  of  the  polling  place,  and  partisan  control  of  election 
administration  at  the  state  level — of  the  U.S.  electoral  system  identified  here.9  To 
highlight  the  most  telling  example  of  this  phenomenon,  during  the  2000  election 
controversy  in  Florida,  the  elected  secretary  of  state,  who  was  the  chief  supervisor 
of  the  elections  in  the  state,  was  also  the  co-chair  of  the  campaign  of  one  of  the 
candidates  (George  W.  Bush).10  For  some  reason,  the  states  have  had  very 
limited  success  in  creating  authentic  nonpartisan  institutions  to  oversee  the 
administration  of  elections.11  Actual,  apparent,  or  alleged  bias  has  thereby 
become  an  expected  feature  of  every  critical  decision  made  by  states'  chief 
elections  officers.12  This  is  particularly  true  when  the  decisions  concern  recounts 
or  other  exercises  of  discretion  after  the  votes  have  been  cast  and  when  the  likely 
beneficiaries  of  such  decisions  are  well-known.13  Even  before  the  vote,  however, 
decisions  concerning  voter  registration,  eligibility,  or  ballot  access  will  be  seen 
as  advancing  partisan  interests  if  a  partisan  official  is  the  decision  maker.14 

I.  Crisis  and  Reform:  Lessons  from  the  2000  Presidential  Election 
Controversy  and  Its  Aftermath 

It  often  takes  a  crisis  to  expose  the  fragility  of  a  system  that  under  normal 
circumstances  appears  stable  and  relatively  problem-free.  The  2000  U.S. 
presidential  election  presented  such  a  crisis,  and  it  illustrated  a  number  of 
problems  with  the  American  electoral  system.  For  election  lawyers,  the  crisis  is 
often  viewed  through  the  lens  of  the  Supreme  Court's  resolution  of  Bush  v.  Gore: 
a  controversial  decision  that  focused  on  the  constitutional  problems  inherent 


9.   See  Bennett  J.  Matelson,  Note,  Tilting  the  Electoral  Playing  Field:    The  Problem  of 
Subjectivity  in  Presidential  Election  Law,  69  N.Y.U.  L.  REV.  1238,  1276-77  (1994). 

10.  Sande,  supra  note  7,  at  733. 

1 1 .  Kimball  &  Kropf,  supra  note  4,  at  1 263  ("We  find  that  while  public  opinion  indicates  that 
an  elected  nonpartisan  board  of  elections  is  the  most  preferred  local  election  authority  by  a  national 
sample  of  citizens,  our  data  indicate  that  common  practice  is  not  consistent  with  public  opinion." 
(internal  citation  omitted)). 

12.  See  Hasen,  supra  note  1,  at  938-42,  958;  Sande,  supra  note  7,  at  733-38. 

1 3 .  Richard  L.  Hasen,  Eight  Years  After  Bush  v.  Gore,  Why  Is  There  Still  So  Much  Election 
Litigation  and  What  Does  This  Mean  for  Voter  Confidence  in  the  Electoral  Process?,  FindLaw 
(Oct.  20,  2008),  http://writ.news.findlaw.com/commentary/20081020_hasen.html. 

14.  See,  e.g.,  Crawford  v.  Marion  Cnty.  Election  Bd.,  533  U.S.  181,  191,  203  (2008) 
(upholding  newly-enacted  voter  identification  laws  which  plaintiffs  contended  were  in  part 
motivated  by  partisan  interests  and  noting  that  the  rules  were  supported  by  all  Republicans  in  the 
General  Assembly  and  not  a  single  Democrat);  Hasen,  supra  note  1,  at  945;  see  also  Editorial,  A 
Step  for  Voting  Reform,  NATION,  Jan.  31,  2005,  at  4,  available  at  http://www.thenation.com/doc/ 
2005013 1/  editors2  (calling  for  election  reforms  that  include  "nonpartisan  election  administration 
.  .  .  technology  that  can  be  examined  by  people  outside  the  companies  providing  it  and  a  secure 
paper  trail  on  all  votes  cast . .  .  [and]  a  nonpartisan  national  election  commission  ...  to  evaluate 
the  accuracy  and  representativeness  of  our  election  performance  regularly  and  make 
recommendations  for  improvement"). 


88  INDIANA  LAW  REVIEW  [Vol.  44:85 


when  recounts  of  paper  ballots  are  not  conducted  according  to  uniform 
standards.15  But  the  controversy  entailed  so  much  more  than  its  final  resolution 
would  suggest,  and  its  lessons  for  the  United  States  and  other  countries  should  not 
be  limited  to  the  headlines  created  to  describe  its  final  resolution.16  The  crisis 
highlighted  the  three  meta-problems  described  above — decentralization,  partisan 
administration,  and  incompetence  of  varying  forms.  But  it  also  forced  us  to  think 
about  critical  questions  of  ballot  design  and  technology,  voter  error,  registration 
problems,  absentee  ballots,  and  classic  barriers  to  access.17 

There  are  many  ways  to  tell  the  story  of  the  2000  election  controversy,  but 
few  will  seem  relevant  to  an  international  audience  seeking  lessons  that  can  be 
universalized  for  other  electoral  systems.  At  its  core,  the  2000  election  revealed 
that  in  close  contests  within  the  margin  of  human  or  mechanical  error,  all  aspects 
of  the  system  may  appear  dysfunctional.  Beyond  that,  however,  the  sheer  variety 
of  mishaps  exposed  the  multiple  dimensions  of  an  "election  ecosystem"18  that 
must  perform  well  when  the  system  is  under  stress.  What  follow  are  short 
descriptions  of  the  individual  problems  discovered  in  2000  and  the  reforms 
enacted  or  discussed  in  the  wake  of  the  controversy.  Each  situates  the  American 
experience  in  an  international  context,  describing  some  phenomena  and 
regulations  that  are  unique  and  others  that  are  more  widely  shared. 

A.    Voter  Registration 

The  United  States  is  unique  among  democracies  in  the  relative  absence  of 
government-initiated  action  to  register  voters.19  The  burden  of  registration  falls 


15.  See  generally  Richard  L.  Hasen,  A  Critical  Guide  to  Bush  v.  Gore  Scholarship,  7  Ann. 
Rev.  Pol.  Sci.  297  (2004)  (summarizing  legal  scholars'  writings  on  the  Supreme  Court's  Bush  v. 
Gore  opinion). 

16.  See,  e.g.,  Elizabeth  Garrett,  Institutional  Lessons  from  the  2000  Presidential  Election,  29 
Fla.  St.  U.  L.  Rev.  975,  976  (2001). 

1 7.  Helen  Norton,  What  Bush  v.  Gore  Means  for  Elections  in  the  21st  Century,  2  Wyo.  L. 
Rev.  4 1 9, 420-22  (2002);  see  also  Jo  Becker  &  Dan  Keating,  Problems  Abound  in  Election  System: 
Outmoded  Machinery  Is  Still  Widespread,  WASH.  POST,  Sept.  5,  2004,  at  Al  (highlighting  main 
problems  that  arose  in  the  2000  election  and  explaining  how  many  have  still  not  been  resolved); 
Bad  Ballot  Design  Results  in  Staggering  Numbers  of  Lost  Votes,  BRENNAN  Ctr.  FOR  JUSTICE  (July 
21,  2008),  available  at  http://www.brennancenter.org/content/resource/bad_ballot_design_ 
results_in_staggering_  numbersoflostvotes/.  The  Center  reported: 

In  the  most  egregious  and  well-known  case,  the  "butterfly  ballot"  used  in  Palm  Beach 
County,  Florida  during  the  2000  presidential  election,  the  presidential  race  was  split  into 
two  columns,  which . . .  likely  caused  more  than  2,000  Democratic  voters  to  mistakenly 
vote  for  Pat  Buchanan  and  threw  out  an  additional  20,000  votes  due  to  double- 
voting — in  a  race  that  was  decided  by  fewer  than  600  votes. 

18.  See  Steven  F.  Huefner  et  al.,  From  Registration  to  Recounts:  The  Election 

ECOSYSTEMS  OF  FIVE  MIDWESTERN  STATES  11-17  (2007). 

19.  See  generally  JENNIFERS.  ROSENBERG  &  MARGARET  Chen,  BRENNAN  CTR.  FOR  JUSTICE, 

Expanding  Democracy:  Voter  Registration  Around  the  World  9  (2009),  available  at 


20 1 0]  WHAT  THE  WORLD  CAN  LEARN  89 


almost  exclusively  on  the  voter,  although  the  actual  requirements  vary  from  state 
to  state.  This  allocation  of  burdens  has  great  consequences  for  the  U.S. 
population,  which  is  one  of  the  most  mobile  in  the  world  with  more  than  a  quarter 
of  the  population  moving  every  two  years.20  Whenever  citizens  in  most  states 
change  their  address,  they  must  re-register  with  the  local  government  if  they  wish 
to  vote  in  their  new  community.21  As  a  result,  demographic  characteristics  that 
negatively  correlate  with  mobility  (such  as  age  and  education)  are  also  powerful 
predictors  of  voter  turnout.22  More  importantly,  the  frequent  movement  of  U.S. 
citizens  presents  great  challenges  to  maintaining  reliable  registration  lists.23 
Different  states  have  adopted  different  strategies  to  "purge"  ineligible,  deceased, 
or  no  longer  resident  voters  from  their  lists.24 

The  criticism  lodged  against  Florida  in  2000  was  that  the  state,  in  an  effort 
to  clear  felons  from  its  list  of  registered  voters,  purged  a  number  of  legitimate 
voters  as  well.25  Although  many  countries  in  the  world  allow  prisoners  to  vote, 
only  two  American  states  do,26  and  some,  such  as  Florida,  disenfranchise  many 
felons  for  extended  periods  even  after  they  have  served  their  time  in  prison.27  The 
state  purged  voters  with  names  that  matched  a  list  of  felons,  but  that  purge  list 


http://www.brennancenter.org/content/resource/expanding_democracy_voter_ 
registrationaroundtheworld/;  see  also  Martin  P.  Wattenberg,  Where  Have  All  the  Voters 
Gone?  16  (2002)  ("It  is  frequently  said  of  American  voter  registration  that  it  places  a  greater 
burden  on  those  seeking  to  vote  than  do  the  requirements  of  any  other  democracy.");  Craig  Leonard 
Brians  &  Bernard  Grofman,  Election  Day  Registration 's  Effect  on  U.S.  Voter  Turnout,  82  Soc.  SCI. 
Q.  170,  170  (2001)  ("Among  modern  democracies,  U.S.  voter  registration  provisions  require  a 
nearly  unique  degree  of  individual  citizen  responsibility,  encumbering  Americans  with  greater 
turnout  costs."). 

20.  Peverill  Squire  et  al.,  Residential  Mobility  and  Voter  Turnout,  8 1  Am.  POL.  Sci.  Rev.  45, 
45-46  (1987)  (finding  that  the  increased  mobility  of  the  U.S.  population  is  directly  correlated  with 
low  voter  turnout  rate). 

21.  Wendy  Weiser  et  al.,  Brennan  Ctr.  for  Justice,  Voter  Registration 
Modernization:  Policy  Summary  1  (2009),  available  at  http://brennan.3cdn.net/b75fl341338 
8b2fccc_ynm6bn  1 12.pdf. 

22.  See  id.  at  5;  John  A.  MacLeod  &  Merle  F.  Wilberding,  State  Voting  Residency 
Requirements  and  Civil  Rights,  38  GEO.  WASH.  L.  REV.  93,  95  (1969). 

23.  See  Squire  et  al.,  supra  note  20,  at  46. 

24.  Id. ;  see  also  Weiser  et  al.,  supra  note  2 1 ,  at  5 . 

25 .  Guy  Stuart,  Databases,  Felons,  and  Voting:  Bias  and  Partisanship  of  the  Florida  Felons 
List  in  the  2000  Elections,  1 19  POL.  SCI.  Q.  453, 469-73  (2004);  Gregory  Palast,  Florida 's  Flawed 
"Voter-Cleansing"  Program,  Salon  (Dec.  4,  2000,  10:19  PM),  http://www.salon.com/ 
news/politics/feature/2000/ 1 2/04/voter_f ile/. 

26.  Wilson  Ring,  Vermont,  Maine  Only  States  to  Let  Inmates  Vote,  BOS.  GLOBE  (Oct.  22, 
2008),  http://www.boston.com/news/local/maine/articles/2008/10/22/vermont_maine_only_states_ 
toletinmatesvote/. 

27.  Erik  Eckholm,  States  Are  Growing  More  Lenient  in  Allowing  Felons  to  Vote,  N.Y.  TIMES 
(Oct.  12,  2006),  http://www.nytimes.com/2006/10/12/us/12felons.html  ("[T]hree  states,  Florida, 
Kentucky  and  Virginia,  still  have  lifetime  bans  on  voting  by  felons."). 


90  INDIANA  LAW  REVIEW  [Vol.  44:85 


also  contained  many  legitimate  voters,  which  Democrats  argued  included  a 
disproportionate  number  of  African  Americans.28 

In  the  wake  of  the  2000  election,  Congress  adopted  two  principal  reforms  to 
deal  with  registration  problems.  The  Help  America  Vote  Act  established  a 
system  of  statewide  voter  registration  lists  and  provisional  balloting.29  States 
were  required  to  establish  a  single  authoritative  automated  list  of  registered  voters 
that  could  be  publicly  scrutinized.30  Indeed,  in  this  respect,  the  United  States 
became  more  like  other  countries  in  which  such  lists  are  nationally  centralized.31 
Because  the  federal  government  plays  a  very  small  role  in  voter  registration, 
however,  this  function  was  centralized  at  the  state  level.32  While  still  an  oddity 
as  a  comparative  matter,  this  was  an  improvement  over  the  previous  system, 
where  such  lists  may  have  been  kept  by  county  officials.33 

The  second  innovation — provisional  ballots — was  seen  as  a  way  of  solving 
the  problem  of  voters  incorrectly  turned  away  from  the  polls.34  By  allowing 
voters  whose  registration  status  was  in  question  to  cast  provisional  paper  ballots 
that  were  segregated  from  the  normal  ballots,  the  system  would  leave  the  question 
as  to  whether  such  ballots  should  be  counted  until  after  the  election.35  Such  a 
system  recognizes  the  difficulty  in  resolving  such  controversies  in  real  time  in  a 
busy  polling  place  on  Election  Day.  At  least  with  provisional  ballots,  the  threat 
of  actual  disenfranchisement  (literally  preventing  an  eligible  voter  from  voting) 
is  greatly  diminished,  even  if  the  likelihood  of  the  vote  being  counted  is  less  than 
one  hundred  percent.36  However,  the  more  ballots  that  are  deferred  for  later 
decision,  the  more  likely  that  provisional  ballots  could  determine  the  outcome  of 


28.  See  Stuart,  supra  note  25,  at  464;  U.S.  Comm'n  on  Civil  Rights,  Voting 
Irregularities  in  Florida  During  the  2000  Presidential  Election  (2001),  http://www. 
usccr.gov/pubs/vote2000/report/ch9.htm. 

29.  Help  America  Vote  Act  (HAVA)  of  2002,  42  U.S.C.  §§  15301-15545  (2006  &  Supp. 
2008). 

30.  Id.  §  15483(a)(1)(A). 

31.  See  Cal.  Inst,  of  Tech.  &  Mass.  Inst,  of  Tech.,  Voting:  What  Is,  What  Could  Be 
14-15  (July  2001),  available  at  http://vote.caltech.edu/drupal/files/report/voting_what_is_what_ 
could_be.pdf. 

32.  42  U.S.C.  §  15483(a)(1)(A)  ("[E]ach  State,  acting  through  the  chief  State  election 
official,  shall  implement,  in  a  uniform  and  nondiscriminatory  manner,  a  single,  uniform,  official, 
centralized,  interactive  computerized  statewide  voter  registration  list  defined,  maintained,  and 
administered  at  the  State  level  that  contains  the  name  and  registration  information  of  every  legally 
registered  voter  in  the  State  and  assigns  a  unique  identifier  to  each  legally  registered  voter  in  the 
State "). 

33 .  See  Ctr.  for  Democracy  &  Election  Mgmt.,  supra  note  6,  at  9. 

34.  42  U.S.C.  §  1 5482;  Daniel  Tokaji,  Provisional  Voting:  Federal  Law  and  Ohio  Practice, 
in  The  e-Book  on  Election  Law  §  5.4  (July  2,  2010),  available  at  http://moritzlaw.osu.edu/ 
electionlaw/ebook/part5/procedures_rules0 1  .html. 

35.  Wendy  R.  Weiser,  Are  HAVA's  Provisional  Ballots  Working?,  Brennan  Ctr.  FOR 
Justice  2-3  (Mar.  29,  2006),  http://www.brennancenter.Org/page/-/d/download_file_39043.pdf. 

36.  Id.  at  2. 


2010]  WHAT  THE  WORLD  CAN  LEARN  9 1 


a  close  election,  and  therefore,  that  litigation  would  result  to  contest  the 
legitimacy  of  such  ballots.  Moreover,  since  2000,  states  and  localities  have 
enforced  inconsistent  standards  as  to  which  provisional  ballots  will  be  counted.37 
In  subsequent  elections,  however,  new  problems  with  the  voter  registration 
system  have  emerged  to  become  the  chief  challenges  for  election  reformers  in  the 
United  States.  In  particular,  private  organizations  that  have  filled  the  void  caused 
by  the  government's  absence  in  registering  voters  have  come  under  scrutiny  for 
registering  fictitious  or  duplicate  persons.38  At  the  same  time,  state  parties  have 
also  developed  strategies  for  challenging  the  status  of  voters — for  example,  by 
comparing  the  voter  registration  list  to  other  lists  such  as  driver's  license,  Social 
Security,  change  of  address,  or  home  foreclosure  lists — to  question  the  residency 
of  voters.39  If  Congress  revisits  election  reform  during  the  Obama  presidency,  it 
will  likely  grapple  with  both  the  activities  of  outside  groups  that  register  voters 
and  the  permitted  reasons  for  challenging  voters.  If  the  United  States  were  to 
move  toward  the  international  consensus  position  on  voter  registration,  which  is 
to  have  greater  government  involvement  in  registering  voters,  many  such 
problems  would  be  solved.40  However,  the  United  States  is  unique  among  nations 
in  that  the  government  does  not  keep  a  list  of  citizens,  nor  does  it  provide  all 
citizens  with  identification  that  demonstrates  citizenship.  That  failure  hampers 
the  government's  ability  to  develop  lists  of  eligible  citizens  for  other  purposes, 
such  as  voting.41 

B.  Ballot  Technology 

The  2000  election  controversy  is  defined  in  the  popular  imagination  by 
images  of  cross-eyed  vote  counters  examining  holes  punched  on  paper  cards.  The 
recount  brought  into  stark  view  the  nineteenth  century  technology  that  was  being 
used  to  run  modern  U.S.  elections.  Reforms  in  the  wake  of  the  2000  election  led 
to  the  elimination  of  punch-card  ballots  and  significant  federal  subsidies  for  new 
technology,  such  as  Direct  Recording  Electronic  (DRE)  voting  machines.42  Many 


37.  See  Pew  Ctr.  on  the  States,  Solution  or  Problem?  Provisional  Ballots  in  2004, 
at  7-8  (Apr.  2005 ),  available  at  http ://www.pewcenteronthestates.org/uploadedFiles/ERIP  1 0Apr05 . 
pdf;  Weiser,  supra  note  35,  at  5. 

38.  Mike  Pesca,  Politicizing  the  Process  of  Registering  Voters,  Nat'L  Pub.  Radio  (Oct.  1 9, 
2004),  http://www.npr.org/templates/story/story.php?storyId=4 1 1 6462&ps=rs;  Steve  Friess,  Acorn 
Charged  in  Voter  Registration  Fraud  Case  in  Nevada,  N.Y.  TIMES,  May  5, 2009,  at  Al  8,  available 
at  http://www.nytimes.com/2009/05/05/us/05acorn.html. 

39.  Christopher  Cooper  &  Evan  Perez,  Voting-Rights  Conflicts  Intensify,  WALL  St.  J.,  Sept. 
17,  2008,  at  A22,  available  at  http://online.wsj.com/article/SB122161670293146325. 
html#articleTabs_interactive;  Michael  Moss,  Big  G.O.P.  Bid  to  Challenge  Voters  at  Polls  in  Key 
State,  N.Y.  Times,  Oct.  23,  2004,  available  at  http://www.nytimes.com/2004/10/23/politics/ 
campaign/23vote.html. 

40.  See  ROSENBERG  &  CHEN,  supra  note  19,  at  26. 

4 1 .  See  Ctr.  for  Democracy  &  Election  Mgmt.,  supra  note  6,  at  9- 1 1 . 

42.  Ron  Word,  Florida  Rids  Itself  of  Punch-Card  Ballots,  A.P.  ONLINE  (Sept.  5,  2001), 


92  INDIANA  LAW  REVIEW  [Vol.  44:85 


procurement  decisions  made  in  the  wake  of  the  2000  controversy  were  later  a 
source  of  regret  as  a  lack  of  confidence  in  the  security  of  electronic  machines  led 
many  states  to  abandon  them.43 

Ballot  technology  and  error  rates  constituted  the  most  studied  phenomena  in 
the  wake  of  the  2000  controversy.  The  Caltech/MIT  Voting  Technology  Project 
("the  Project")  examined  the  error  rates  of  different  voting  methods  and 
concluded  that  punch-card  ballots  were  far  inferior  to  other  technologies,  such  as 
optical  scan  ballots  or  electronic  voting  machines.44  However,  the  Project  also 
found  that  the  quality  of  election  administration  was  a  more  important  factor  in 
the  number  of  lost  votes  (votes  that  end  up  not  being  counted)  than  the 
technology  used  by  voters  to  cast  their  ballot.45  In  other  words,  from  the 
standpoint  of  reliability  in  translating  voter  intentions  to  counted  ballots,  it  was 
better  to  have  better  administration  with  inferior  technology  than  superior 
technology  with  poor  administration.  Indeed,  that  lesson  is  one  that  reformers 
both  within  and  beyond  the  United  States  should  take  to  heart. 

With  respect  to  ballot  technology,  however,  many  jurisdictions  that  switched 
quickly  to  electronic  voting  machines  came  to  regret  that  decision.  Concerns 
about  security  and  reliability  of  certain  machines  led  some  to  abandon  them.46 
Fear  of  hackers,  as  well  as  reports  of  breakdowns,  led  other  jurisdictions  to  rely 
on  technological  advances  that  had  paper  backups  in  the  event  of  a  recount.47  In 
particular,  experience  since  2000  has  led  many  to  conclude  that  one  of  the  critical 
features  of  reliable  balloting  technology  is  guaranteeing  a  voter's  ability  to  verify 
that  the  ballot  accurately  reflects  his  or  her  intentions.  So-called  precinct-based 


http://www.highbeam.eom/doc/l  P 1  -46675 1 50.html;  see  Daniel  Tokaji,  Voting  Technology,  in  The 
e-Book  on  Election  Law  §  4.1,  available  at  http://mortizlaw.osu.edu/electionlawbook/part4/ 
equipment_machines06.html  (last  visited  Nov.  18,  2010);  Hasen,  supra  note  1,  at  950-51. 

43.  See  Ctr.  for  Democracy  &  Election  Mgmt.,  supra  note  6,  at  25-26;  John  Ingold, 
Colorado  Set  to  Abandon  Electronic  Voting:  How  Will  Colorado  Vote?,  Denv.  Post  (Jan.  16, 
2008,  8:44  AM  MST),  http://www.denverpost.com/breakingnews/ci_7981616;  Pam  Fessler, 
Several  States  Abandon  Electronic  Voting  for  Paper,  Nat'L  Pub.  RADIO  (Jan.  25,  2008), 
http://www.npr.org/templates/story/story.php?storyId=l  839943 1 . 

44.  Henry  E.  Brady  et  al.,  Univ.  of  Cal.,  Berkeley,  Counting  All  the  Votes:  The 
Performance  of  Voting  Technology  in  the  United  States  32  (2001),  http://www.sos. 
wa.gov/documentvault/UniversityofCaliforniaBerkeleyCountingAlltheVotesSeptember2001- 
1 020.pdf;  R.  Michael  Alvarez  et  al.,  A  Preliminary  Assessment  of  the  Reliability  of  Existing  Voting 
Equipment  12-13  (Feb.  1,  2001)  (unpublished  manuscript),  available  at  http://e-voto.di.fc.ul.pt/ 
docs/A%20Preliminary%20Assessment%20of%20the%20Reliability%20of.pdf. 

45.  See  Cal.  Inst,  of  Tech.  &  Mass.  Inst,  of  Tech.,  supra  note  3 1 ,  at  8-9  (finding  that  of 
the  four  to  six  million  votes  lost  in  the  2000  election,  1 .5  to  two  million  were  lost  because  of  faulty 
equipment  and  confusing  ballots,  while  the  rest  were  lost  because  of  registration  mix-ups,  poorly 
conducted  polling  place  operations,  and  absentee  ballot  problems). 

46.  Fessler,  supra  note  43. 

47.  Stephanie  Desmon  &  Stephen  Kiehl,  Security  of  Ballot  Not  1 00%:  Critics  Expect  Flaws 
as  Maryland  Switches  Systems,  Balt.  Sun  (Jan.  19, 2008),  http://articles.baltimoresun.com/2008- 
01-1 9/news/080 1 1 9022 1  _  1  jpaper-ballots-voting-machines-optical-scan-machines. 


20 1 0]  WHAT  THE  WORLD  CAN  LEARN  93 


optical  scan  technology  allows  a  voter  to  place  a  paper  optical  scan  ballot  into  a 
machine,  which  will  reject  it  if  the  ballot  is  unreadable  for  some  reason,  such  as 
an  accidental  vote  for  more  than  one  candidate.48  Electronic  voting  machines  will 
prevent  a  voter  from  double  voting  in  an  election  and  will  often  require  voters  to 
verify  that  they  intend  to  undervote  if  they  intentionally  leave  one  of  the  offices 
blank.49 

In  addition  to  highlighting  problems  with  the  technology  itself,  the  2000 
election  brought  to  the  fore  the  importance  of  ballot  design  in  preventing  voter 
error.  Although  many  remember  the  2000  election  as  turning  on  punch-card 
ballots,  it  was  the  defective  Palm  Beach  butterfly  ballot  that  received  the  most 
attention  in  the  days  following  the  election.50  Because  of  the  placement  of  names 
on  that  ballot,  thousands  of  voters  who  believed  they  were  voting  for  Al  Gore 
ended  up  voting  for  Reform  Party  candidate  Patrick  Buchanan.51  Also,  as  later 
analysis  of  the  ballots  revealed,  another  design  error  in  Duval  County  led  voters 
inadvertently  both  to  vote  for  Al  Gore  and  to  write  his  name  as  a  write-in 
candidate,  subsequently  leading  to  thousands  of  disqualified  votes.52 

No  technology  is  exempt  from  potential  errors  in  ballot  design,  although 
allowing  voters  to  verify  their  vote  will  reduce  the  impact  of  such  errors.  We 
have  learned  in  subsequent  elections  that  even  electronic  voting  machines  can 
lead  voters  to  miscast  their  votes  based  on  misunderstandings  concerning,  for 
example,  which  candidates  are  running  for  which  offices.53     These  design 


48.  Tigran  Antonyan  et  al.,  State- Wide  Elections,  Optical  Scan  Voting  Systems,  and  the 
Pursuit  of  Integrity,  4  IEEE  TRANSACTIONS  ON  INFO.  FORENSICS  &  SEC.  597,  597  (2009). 

49.  Id 

50.  Staff  of  H.  Comm.  on  the  Judiciary,  107th  Cong.,  How  to  Make  Over  One 
Million  Votes  Disappear:  Electoral  Sleight  of  Hand  in  the  2000  Presidential  Election 
3  8  (Comm.  Print  200 1 );  John-Thor  Dahlburg,  Designer  of  Florida 's  Butterfly  Ballot  Loses  Job;  She 
Was  Blamed  for  Confusion  in  2000  Presidential  Election,  L.A.  TIMES  (Sept.  2,  2004,  4:00  PM 
PST),  http://articles.sfgate.com/2004-09-02/news/17442939_l_butterfly-ballot-howard-dean- 
conservative-reform-party-candidate. 

5 1 .  Jonathan  N.  Wand  et  al.,  The  Butterfly  Did  It:  The  Aberrant  Vote  for  Buchanan  in  Palm 
Beach  County,  Florida,  95  Am.  Pol.  Sci.  REV.  793,  793  (2001)  (finding  that  the  butterfly  ballot 
caused  over  2000  Democratic  voters  to  mistakenly  vote  for  Buchanan  instead  of  Gore);  Newspaper: 
Butterfly  Ballot  Cost  Gore  White  House,  CNN  (Mar.  1 1,  2001,  8:43  AM),  http://edition.cnn.com/ 
200 1 /ALLPOLITICS/03/ 1 1 /palmbeach.recount/index.html?iref^storysearch. 

52.  See  Alan  Agresti  &  Brett  Presnell,  Misvotes,  Undervotes  and  Overvotes:  The  2000 
Presidential  Election  in  Florida,  1 7  STAT.  Sci.  436, 438  (noting  that  "more  than  20%  of  the  ballots 
in  predominantly  African- American  precincts  in  Duval  County  were  tossed  out");  see  generally 
Kirk  Wolter  et  al.,  Reliability  of  the  Uncertified  Ballots  in  the  2000  Presidential  Election  in 
Florida,  57  Am.  Statistician  1  (2003),  available  at  http://www.amstat.org/misc/ 
presidentialelectionballots.pdf  (discussing  a  study  that  conducted  a  comprehensive  review  of  all 
uncounted  ballots  in  Florida  and  found  that  had  the  recount  been  limited  to  the  counties  Gore 
contested,  Bush  still  would  have  won  the  election). 

53.  Clive  Thompson,  Can  You  Count  on  Voting  Machines?,  N.Y.  Times  (Jan.  6,  2008), 
http://www.nytimes.com/2008/01/06/magazine/06Vote-t.html. 


94  INDIANA  LAW  REVIEW  [Vol.  44:85 


problems,  as  well  as  the  technology  problems  noted  above,  are  more  pronounced 
in  the  United  States  given  the  large  number  of  offices  and  propositions  appearing 
on  ballots.54  In  many  countries,  voters  vote  for  one  or  two  offices  in  a  given 
election,  often  on  long  ballots  that  simply  list  parties  participating  in  that  election. 
In  the  United  States,  it  is  not  uncommon  for  voters  to  vote  for  three  federal 
offices,  five  state  offices,  multiple  local  offices,  judges,  and  referenda  on  the 
same  ballot. 

C.  Modes  of  Voting 

In  addition  to  problems  with  the  balloting  on  Election  Day  itself,  the  2000 
election  included  controversies  concerning  the  counting  of  absentee  ballots, 
particularly  ballots  cast  by  soldiers  overseas.55  As  each  ballot  was  scrutinized  in 
the  litigation  following  the  vote,  the  technical  requirements  for  absentee  ballots 
became  a  fertile  source  of  disagreement  as  to  which  ballots  were  legally  cast  and 
as  to  how  much  help  administrators  should  provide  voters  who  made  technical 
errors.56  That  lesser-known  aspect  of  the  controversy  presaged  the  recent 
controversy  in  the  U.S.  Senate  race  in  Minnesota  in  which  as  many  as  five 
percent  of  absentee  ballots  were  rejected  as  invalid.57 


54.  See  Lawrence  Norden  et  al.,  Brennan  Ctr.  for  Justice,  Better  Ballots  18-59 
(July  2008),  available  at  http://brennan.3cdn.net/d6bd3c56be0d0cc861_hlm6i92vl.pdf 
(summarizing  problems  with  ballot  design  in  the  United  States). 

55.  Kosuke  Imai  &  Gary  King,  Did  Illegal  Overseas  Absentee  Ballots  Decide  the  2000  U.S. 
Presidential  Election?,  2  Persp.  ON  Pol.  537,  537-49  (2004)  (arguing  that  although  Al  Gore 
received  more  votes  than  George  W.  Bush  in  Florida,  Bush  won  the  election  due  to  overseas 
absentee  ballots  that  came  in  and  were  counted  after  election  day);  David  Barstow  &  Don  Van 
Natta  Jr.,  How  Bush  Took  Florida:  Mining  the  Overseas  Absentee  Vote,  N.Y.  TIMES,  July  1 5, 200 1 , 
available  at  http://www.nytimes.com/2001/07/15/national/15BALL.html.  Barstow  and  Van  Natta 
noted  that 

[i]n  an  analysis  of  the  [2490]  ballots  from  Americans  living  abroad  that  were  counted 
as  legal  votes  after  Election  Day,  The  Times  found  680  questionable  votes.  Although 
it  is  not  known  for  whom  the  flawed  ballots  were  cast,  four  out  of  five  were  accepted 
in  countries  carried  by  Mr.  Bush,  The  Times  found.  Mr.  Bush's  final  margin  in  the 
official  total  was  537  votes. 

56.  See  Gore  on  the  Defensive,  SALON  (Nov.  19,  2000,  1:07  PM),  http://www.salon.com/ 
news/politics/trail/2000/1  l/19/trail_mix/index.html  (explaining  how  the  GOP  had  alleged  that  the 
Democratic  Party  was  engaged  in  a  campaign  to  disqualify  1420  overseas  ballots  based  on 
technicalities);  Richard  L.  Berke,  Examining  the  Vote;  Lieberman  Put  Democrats  in  Retreat  on 
Military  Vote,  N.Y.  TIMES,  (July  15,  2001),  http://www.nytimes.com/2001/07/15/us/  examining- 
the-vote-lieberman-put-democrats-in-retreat-on-military-vote.html?sec;=&spon=&pagewanted=all; 
Michael  Moss,  Absentee  Votes  Worry  Officials  as  Nov.  2  Nears,  N.Y.  TIMES  (Sept.  13,  2004), 
http://www.nytimes.eom/2004/09/l  3/politics/campaign/l  3vote.html. 

57.  Courts  May  Decide  Minn.  Senate  Seat,  USA  TODAY  (Nov.  28,  2008,  4:04  AM), 
http://www.usatoday.com/news/politics/election2008/2008- 1 1  -28-minnesota-senate-race_N.htm 
("Secretary  of  State  Mark  Ritchie  estimated  that  12,000  absentee  ballots  were  rejected  for  various 


20 1 0]  WHAT  THE  WORLD  CAN  LEARN  95 


The  rising  trend  in  absentee  and  early  voting  threatens  to  revolutionize  the 
way  the  United  States  manages  its  elections.58  In  some  respects,  these  alternative 
modes  of  voting  have  brought  the  United  States  closer  to  the  majority  of  nations 
that  allow  for  voting  on  more  than  one  day.  Historically,  most  voters  in  the 
United  States,  unless  they  had  a  compelling  reason  for  nonattendance  at  the  polls, 
could  only  vote  on  the  Tuesday  (not  a  national  holiday  as  in  many  other 
countries)  when  elections  were  conducted.59  In  the  modern  era,  with  the  rise  of 
absentee  and  early  voting,  elections  in  some  states  now  begin  several  weeks 
before  the  official  date.60  Many  states  have  moved  toward  these  innovations  in 
order  to  mitigate  the  frenzy  and  long  lines  that  can  accompany  a  single  election 
day.61 

Just  as  voters  on  Election  Day  cast  ballots  by  many  methods,  so  too  do  early 
voters.  In  the  western  states,  early  voters  disproportionately  vote  by  absentee 
ballot;  they  mail  in  their  request  for  a  ballot  and  then  return  the  ballot  by  mail 
before  Election  Day.62  Such  is  the  case  for  overseas  and  military  voters,  as 
provided  by  federal  law.63  Some  states  will  allow  absentee  ballots  to  be  faxed  or 
emailed  as  well.  In  other  states,  polls  open  days  or  weeks  in  advance  so  voters 
have  an  extended  period  by  which  to  cast  their  ballot,  or  the  state  opens  a  limited 
number  of  vote  centers  in  advance  of  Election  Day.64  Looming  on  the  horizon, 
of  course,  is  Internet  voting.  The  United  States  recently  has  experimented  with 
some  overseas  military  voters  voting  on-line,  but  the  limited  success  of  that  effort 
has  yet  to  assuage  those  concerned  about  the  method's  security.65 


reasons.  That's  between  4%  and  5%  of  all  the  absentee  ballots  cast."). 

58.  See  John  C.  Fortier  &  Norman  J.  Ornstein,  The  Absentee  Ballot  and  the  Secret  Ballot: 
Challenges  for  Election  Reform,  36  U.  Mich.  J.L.  Reform  483,  512  (2003)  ("The  rise  in  absentee 
voting,  the  ease  of  obtaining  absentee  ballots,  and  the  role  of  the  parties  in  the  process  could  easily 
lead  to  increased  fraud  and  the  loss  of  protections  of  the  secret  ballot."). 

59.  David  S.  Broder,  Why  Vote  on  Tuesdays?,  WASH.  POST  (Nov.  10,  2005),  http://www. 
washingtonpost.com/wp-dyn/content/article/2005/1 1  /09/AR2005 1 1 090 1 650.html;  Jesse  McKinley, 
A  Push  to  Supplement  Tuesday  Voting  with  Weekends,  N.Y.  TIMES,  Mar.  10,  2010,  at  A 18, 
available  at  http://www.nytimes.com/2010/03/10/us/10vote.html. 

60.  Mary  Fitzgerald,  Greater  Convenience  but  Not  Greater  Turnout:  The  Impact  of 
Alternative  Voting  Methods  on  Electoral  Participation  in  the  United  States,  33  Am.  Pol.  Res.  842, 
846-48  (2005);  see  also  Ctr.  for  Democracy  &  Election  Mgmt.,  supra  note  6,  at  33  ("While 
only  [eight]  percent  of  ballots  were  cast  before  Election  Day  in  1994,  by  2004  the  percentage  of 
ballots  cast  before  Election  Day  had  risen  to  [twenty-two]  percent."). 

6 1 .  See  Fitzgerald,  supra  note  60,  at  846-49. 

62.  Paul  Gronke  et  al.,  Early  Voting  and  Turnout,  4  POL.  Sci.  &  Pol.  639,  639-40  (2007); 
Scott  Helman,  Minds  Made  Up,  Millions  Voting  Early,  Bos.  GLOBE  (Sept.  30,  2008), 
http://www.boston.com/news/nation/articles/2008/09/30/rninds_made_up_millions_voting_early/ 
("Interest  in  early  and  absentee  voting  has  grown  since  the  1970s,  especially  in  Western  states, 
which  have  been  the  pioneers,  researchers  say."). 

63.  42  U.S.C.  §  1973ff-2  (2006). 

64.  See  Gronke  et  al.,  supra  note  62,  at  639-4 1 . 

65.  R.  Michael  Alvarez  &  Thad  E.  Hall,  Point,  Click,  &  Vote:   The  Future  of 


96  INDIANA  LAW  REVIEW  [Vol.  44:85 


These  alternative  methods  of  voting  have  raised  a  new  set  of  concerns  that 
should  caution  other  countries  moving  in  a  similar  direction.  Some  worry  that 
early  voters  do  not  have  the  benefit  of  basing  their  decisions  on  late-breaking 
developments  in  a  campaign.66  The  more  serious  problem,  as  noted  above, 
concerns  the  error  rates  on  absentee  ballots,  which  sometimes  lead  to  a  great 
number  of  uncounted  votes.67  This  high  rate  of  spoilage  results  from  the  failure 
of  voters  to  comply  with  the  technical  requirements  of  requesting  and  submitting 
such  ballots,  as  well  as  errors  in  actually  casting  their  vote.68  Without  the  aid  and 
supervision  of  election  officials,  ballots  cast  in  private  (as  absentee  ballots  are) 
are  ripe  for  both  fraud  and  error.69 

In-person  early  voting  poses  a  separate  set  of  challenges,  principally  for  the 
candidates  and  parties  wishing  to  have  observers  in  the  polling  place  throughout 
the  early  voting  period.  When  elections  were  held  on  a  single  day,  staffing 
polling  places  with  representatives  from  the  campaigns  was  easy.  Placing  people 
there  for  two  weeks  when  they  are  most  needed  for  the  final  days  of  campaigning 
presents  administrative  challenges  that  political  operatives  have  only  just  begun 
to  confront.  Nevertheless,  given  their  popularity,  these  forms  of  "convenience" 
voting  are  here  to  stay  and  will  only  gain  greater  acceptance.70  Whether  the  states 
begin  to  move  toward  the  next  stage  (Internet  voting)  depends  on  whether  both 
insiders  and  the  public  become  convinced  of  its  reliability  and  security. 

D.  Counting  and  Recounting  Votes 

In  the  end,  the  2000  presidential  election  controversy  was  about  the  fairness 
of  standards  used  to  count  ballots.  The  U.S.  Supreme  Court  found  that  the 
recount  process  ordered  by  the  state  court  in  Florida  treated  similar  ballots 
differently,  such  that  voters  in  parts  of  the  state  with  more  permissive  standards 
would  be  more  likely  to  have  their  votes  counted  than  those  in  other  parts  of  the 
state.71  The  unbounded  discretion  left  in  the  hands  of  those  counting  the  votes 
could  lead  to  impermissible  discrimination  based  simply  on  the  fortuity  of  which 


INTERNET  VOTING  1  -8  (2004);  Alan  Boyle,  Pentagon  Launches  Internet  Voting  Effort  for  Overseas 
Americans,  MSNBC  (June  3, 2003),  http://www.msnbc.msn.com/id/307893 1/;  Cal.  Inst.  ofTech. 
&  MASS.  Inst.  OF  TECH.,  supra  note  31,  at  14-15;  John  Dunbar,  Internet  Voting  Project  Cost 
Pentagon  $73,809  Per  Vote,  THE  Ctr.  FOR  PUBLIC  INTEGRITY  (Aug.  9,  2001),  http://projects. 
publicintegrity.org/telecom/report.aspx?aid=297. 

66.  John  C.  Fortier,  Absentee  and  Early  Voting:  Trends,  Promises,  and  Perils  61 
(2006);  Steve  Kornaki,  The  Big  Problem  with  Early  Voting,  N.Y.  OBSERVER  (Feb.  12,  2008,  3:47 
PM),  http://www.observer.com/2008/big-problem-early-voting. 

67.  See  Courts  May  Decide  Minn.  Senate  Seat,  supra  note  57. 

68.  See  Cal.  Inst,  of  Tech.  &  Mass.  Inst,  of  Tech.,  supra  note  3 1 ,  at  38. 

69.  See  Fortier  &  Ornstein,  supra  note  58,  at  512-13. 

70.  See  Fitzgerald,  supra  note  60,  at  847-48  (finding  that  fifteen  states  had  implemented  in- 
person  early  voting  between  1970  and  2002);  Gronke  et  al.,  supra  note  62,  at  640  ("Election 
officials  are  strong  advocates  of  early  voting  reforms."). 

71.  Bush  v.  Gore,  531  U.S.  98,  105-07  (2000). 


20 1 0]  WHAT  THE  WORLD  CAN  LEARN  97 


vote  counter  may  have  counted  which  ballot.72 

Although  the  Supreme  Court's  opinion  spoke  the  language  of  discrimination 
and  equal  protection,  underlying  it  was  a  concern  about  partisan  administration 
and  incomplete  legal  regimes.73  Some  number  of  similarly  situated  ballots  will 
always  be  treated  differently  in  any  election  where  millions  of  votes  must  be 
tabulated.  Random  error,  which  is  inevitable,  would  not  raise  constitutional 
concerns.74  Bias,  or  the  potential  for  bias,  triggers  more  fundamental  concerns 
(well  known  within  and  beyond  the  United  States)  about  use  of  the  power  to 
count  votes  to  determine  election  outcomes. 

The  potential  for  political  favoritism  grows  when  the  legal  regime  is  not 
designed  for  the  task  of  recounting  ballots  in  a  close  election.  Such  was  the  case 
in  Florida  in  2000.  Gaps  in  the  statute  needed  to  be  filled  either  by  state  officials 
or  the  courts,  with  charges  of  bias  being  lodged  depending  on  the  suspected  party 
affiliation  of  the  decision  maker.  The  U.S.  Supreme  Court  was  not  immune  to 
such  charges  either,  but  public  opinion  polling  in  the  year  after  the  Court's 
resolution  of  the  controversy  showed  that  it  had  not  suffered  any  long-term 
damage  to  its  credibility  among  the  mass  public.75 

In  these  respects,  the  2000  presidential  election  controversy  looked  like  most 
election  controversies  in  other  parts  of  the  world.  Although  ballot  box  stuffing 
and  classic  forms  of  fraud  may  be  more  pronounced  elsewhere,  these 
controversies  ultimately  follow  a  script  of  insiders  using  their  power  to  tilt 
election  outcomes  in  their  favor.  As  in  other  countries,  the  actual  and  perceived 
independence  of  those  overseeing  the  counting  of  votes  is  critical  to  accord 
legitimacy  to  the  process.76  As  detailed  in  the  introduction,  the  United  States  has 
proven  uniquely  incapable  of  developing  nonpartisan  institutions  to  oversee  its 
democracy.77  Not  only  the  chief  election  officials  of  states,  but  even  our  judges 
are  either  elected  or  appointed  by  partisans.78  In  stark  contrast,  most  countries 


72.  Id. 

73.  See  id.  at  128  (Stevens,  J.,  dissenting)  ("What  must  underlie  petitioners'  entire  federal 
assault  on  the  Florida  election  procedures  is  an  unstated  lack  of  confidence  in  the  impartiality  and 
capacity  of  the  state  judges  who  would  make  the  critical  decisions  if  the  vote  count  were  to 
proceed.  Otherwise,  their  position  is  wholly  without  merit.");  Pamela  S.  Karlan,  The  Newest  Equal 
Protection:  Regressive  Doctrine  on  a  Changeable  Court,  in  THE  VOTE:  BUSH,  GORE  &  THE 
Supreme  Court  77,  91-92  (Cass  R.  Sunstein  &  Richard  A.  Epstein  eds.,  2001)  (arguing  that  the 
Supreme  Court's  decision  in  Bush  v.  Gore  was  based  on  an  underlying  mistrust  of  all  other  actors 
in  the  political  process). 

74.  Karlan,  supra  note  73,  at  91-92. 

75.  Jeffrey  L.  Yates  &  Andrew  B.  Whitford,  The  Presidency  and  the  Supreme  Court  After 
Bush  v.  Gore:  Implications  for  Institutional  Legitimacy  and  Effectiveness,  13  STAN.  L.  &  Pol'y 
Rev.  101,  112(2002). 

76.  See  generally  CTR.  FOR  DEMOCRACY  &  ELECTION  MGMT.,  supra  note  6,  at  49. 

77.  See  supra  notes  1-14  and  accompanying  text. 

78.  Hasen,  supra  note  1,  at  974  ("In  thirty-three  states,  the  secretary  of  state  (or  other 
statewide  official  charged  with  responsibilities  as  the  Chief  Elections  Officer  of  the  state  (CELO)) 
is  elected  through  a  partisan  election  process.    No  state  currently  elects  the  CELO  through  a 


98  INDIANA  LAW  REVIEW  [Vol.  44:85 


have  found  ways  to  insulate  bureaucrats  and  election  judges  from  the  normal 
partisan  pressures  of  the  electoral  environment.79  To  be  sure,  losers  in  any 
contested  process  often  feel  unfairly  treated,  no  matter  how  cordoned-off  the 
decisionmakers  may  be.80 

II.  Goals  for  an  Election  Reform  Agenda 

The  recent  U.S.  experience  with  crisis  and  reform  teaches  lessons  that,  to 
some  extent,  can  be  universalized  for  other  countries.  Of  course,  every  electoral 
system  is  different,  and  the  cultural,  economic,  and  institutional  context  will 
greatly  affect  the  goals  and  capabilities  of  reform.  Nevertheless,  each  electoral 
system  seeks  to  further  common  values,  even  if  they  necessarily  must  strike  the 
balance  in  different  ways. 

As  a  threshold  matter,  an  electoral  system  must  accurately  capture  the 
preferences  of  those  who  cast  ballots.81  Perfect  accuracy  can  never  be  achieved, 
and  resources  spent  to  ensure  an  accurate  result  are  often  traded  off  against  those 
necessary  to  further  other  values,  such  as  participation,  competition,  and 
representation.  Reformers  must  recognize  that  no  perfect  electoral  system  exists 
and  that  the  best  technology  with  the  finest  administrators  operating  under  the 
best  set  of  rules  will  not  produce  results  that  perfectly  translate  voter  intentions 
into  counted  ballots.  Although  perfection  may  be  illusory,  minimizing  errors  to 
the  extent  possible  given  other  pressing  values  remains  the  defining  feature  of  a 
working  election  system. 

This  concern  with  accuracy  might  also  be  seen  as  a  value  implicit  to 
representativeness — that  is,  the  election  results  must  accurately  represent  the 
preferences  of  those  who  cast  votes.  This  does  not  necessarily  imply  that  all 
votes  must  be  counted,  but  rather  that  any  errors  in  vote  tabulation  should  be 
random  and  not  biased  against  identifiable  subgroups  of  the  population.  Different 
electoral  systems  attempt  to  achieve  representativeness  in  different  ways — for 
example,  by  choosing  between  proportional  and  plurality-based  systems.  Indeed, 
in  the  United  States,  the  Electoral  College  system  has  made  it  possible  for  a 
candidate  to  win  the  presidency,  as  George  W.  Bush  did,82  while  receiving  fewer 


nonpartisan  election.  The  remaining  states  use  an  appointments  process.");  David  G.  Savage, 
Elected  Judges  Make  a  Case  for  'Appearance  of  Bias ',  CHI.  Trib.  (Feb.  22,  2009),  http://articles. 
chicagotribune.com/2009-02-22/news/09022101 1  llrecusal-justices-judges  ("In  [thirty-eight] 
states,  some  judges  are  elected.  Nineteen  states  besides  West  Virginia  and  Illinois  elect  the  justices 
of  their  supreme  court."). 

79.  See  Ctr.  for  Democracy  &  Election  Mgmt.,  supra  note  6,  at  5. 

80.  Id.  at  49  ("The  losing  side,  not  surprisingly,  is  unhappy  with  the  election  result,  but  what 
is  new  and  dangerous  in  the  United  States  is  that  the  supporters  of  the  losing  side  are  beginning  to 
believe  that  the  process  is  unfair."). 

81.  See  id.  at  1. 

82.  R.  Michael  Alvarez,  Measuring  Election  Performance  1  (Caltech/MIT  Voting  Tech. 
Project,  Working  Paper  No.  94,  2009),  available  at  http://vote.caltech.edu/drupal/files/working_ 
paper/wp_94_pdf_4b67603 3ef.pdf  (noting  that  although  Gore  received  approximately  550,000 


2010]  WHAT  THE  WORLD  CAN  LEARN  99 


votes  than  his  opponent.83  At  a  minimum,  though,  when  it  comes  to  electoral 
administration,  representativeness  requires  that  decisions  made  by  administrators 
should  not  skew  outcomes  and  that  avoidance  of  bias  in  the  inevitable 
inaccuracies  exist  as  a  paramount  goal. 

Beyond  counting  votes  accurately  and  fairly,  a  well-functioning  electoral 
system  must  allow  for  widespread  participation.  Gone  are  the  days  when  limiting 
the  vote  to  white,  male  property  owners,  for  example,  could  qualify  a  country  as 
a  robust  democracy.  Even  among  those  that  putatively  accord  universal  suffrage, 
countries  continue  to  disenfranchise  whole  groups  of  adult  citizens  based  on  their 
status  (such  as  prisoners,84  ex-prisoners,  the  mentally  incompetent,85  or  recent 
residents86),  and  most  limit  the  vote  to  adult  resident  citizens.  Contemporary 
debates  focus  more  on  the  barriers  to  participation  through  identification, 
registration,  and  other  requirements. 

Especially  in  the  United  States,  the  value  of  participation  appears  in  tension 
with  values  of  electoral  integrity  and  accuracy.   In  particular,  many  argue  that 
lowering  the  barriers  to  participation  represents  an  invitation  for  voter  fraud.87 
Such  is  the  criticism  made  by  those  favoring  a  move  (quite  common  throughout 


more  votes  than  Bush,  Bush  won  the  2000  presidential  election). 

83.  See  generally  John  F.  Banzhaf  III,  One  Man,  3.312  Votes:  A  Mathematical  Analysis  of 
the  Electoral  College,  13  VlLL.  L.  REV.  304  (1968)  (critiquing  the  inequality  in  voting  power 
inherent  in  the  Electoral  College  system).  But  see  Nat'l  Comm'n  on  Fed.  Election  Reform,  To 
Assure  Pride  and  Confidence  in  the  Electoral  Process  23  (2001),  available  at  http:// 
election2000.stanford.edu/rull.report8. 2001.pdf  (acknowledging  the  traditional  critiques  of  the 
electoral  college  but  reminding  citizens  that  the  electoral  college  "was  a  delicate  compromise  that 
solved  one  of  the  most  difficult  problems  of  the  Constitutional  Convention"). 

84.  See  generally  Mandeep  K.  Dhami,  Prisoner  Disenfranchisement  Policy:  A  Threat  to 
Democracy?,  5  Analyses  OF  Soc.  Issues  &  PUB.  Pol'y  235  (2005).  For  an  overview  of 
international  prisoner  disenfranchisment  laws,  see  generally  CRIMINAL  Disenfranchisement  in 
an  International  Perspective  (Alec  C.  Ewald  &  Brandon  Rottinghaus  eds.,  2009). 

85 .  Forty-four  American  states  disenfranchise  some  individuals  with  cognitive  and  emotional 
impairments.  Kay  Schriner  &  Lisa  A.  Ochs,  Making  Exceptions  to  Universal  Suffrage:  Disability 
and  the  Right  to  Vote,  in  Encyclopedia  of  Criminology  and  Deviant  Behavior  179,  179 
(Charles  E.  Faupel  &  Paul  M.  Roman  eds.,  2000). 

86.  See  Rosenberg  &  Chen,  supra  note  1 9,  at  1 6  n.62  (noting  that  while  a  number  of  other 
countries  have  used  data-sharing  arrangements  among  government  agencies  to  ensure  that  eligible 
voters  can  vote  even  if  their  personal  information  has  changed,  the  United  States  has  used  such 
techniques  to  identify  citizens  who  may  be  ineligible  to  vote  locally). 

87.  Crawford  v.  Marion  Cnty.  Election  Bd.,  533  U.S.  181,  191-93  (2008)  (supporting  the 
legitimacy  of  the  state  interest  in  preventing  in-person  voter  fraud,  despite  the  lack  of  evidence 
suggesting  it  is  an  issue);  Purcell  v.  Gonzales,  549  U.S.  1,  4  (2006)  ("Voter  fraud  drives  honest 
citizens  out  of  the  democratic  process  and  breeds  distrust  of  our  government.");  Stephen 
Ansolabehere  &  Nathaniel  Persily,  Vote  Fraud  in  the  Eye  of  the  Beholder:  The  Role  of  Public 
Opinion  in  the  Challenge  to  Voter  Identification  Requirements,  121  HARV.  L.  Rev.  1737,  1738 
(2008)  (concluding  that  "perceptions  of  fraud  have  no  relationship  to  an  individual's  likelihood  of 
turning  out  to  vote"). 


100  INDIANA  LAW  REVIEW  [Vol.  44:85 


the  world  where  governments  provide  their  citizenry  with  identification  or 
citizenship  papers)  to  require  photo  identification  in  order  to  vote.88  A  similar 
criticism  is  often  raised  against  different  forms  of  convenience  voting,  such  as 
absentee  ballots,89  which  have  been  the  most  amenable  to  manipulation  and  fraud 
by  political  entrepreneurs.90  On  the  one  hand,  the  opportunity  to  vote  at  home, 
in  private,  at  a  convenient  time  ensures  that  some  voters  will  end  up  voting  who 
otherwise  would  not  (although  the  empirical  evidence  suggests  that  such 
measures  do  not  appreciably  increase  turnout).91  On  the  other  hand,  removing 
such  hurdles  presents  enforcement  challenges  to  ensure  that  these  votes  are  cast 
by  the  voters  themselves  and  are  not  cast  under  duress  or  for  reward.92 

Of  course,  participation  as  a  value  extends  beyond  voters  to  candidates  and 
parties,  and  it  is  thereby  often  reinterpreted  as  "competitiveness."93  Like 
representativeness,  competitiveness  is  a  value  open  to  radically  different 
interpretations.  It  could  imply  mere  contestation,  as  reflected  in  the  sheer  number 
of  candidates  or  parties  that  appear  on  the  ballot.94  It  could  also  entail  genuine 
rivalry,  as  in  the  number  of  candidates  or  parties  with  a  realistic  chance  of 
winning  control.95  Alternatively,  it  could  be  assessed  according  to  the  results  of 
elections,  such  as  the  margins  of  victory.96  Competition,  however  we  define  it, 


88.  Ctr.  for  Democracy  &  Election  Mgmt.,  supra  note  6,  at  1 8  ("There  is  no  evidence 
of  extensive  fraud  in  U.S.  elections  or  of  multiple  voting,  but  both  occur,  and  it  could  affect  the 
outcome  of  a  close  election.  The  electoral  system  cannot  inspire  public  confidence  if  no  safeguards 
exist  to  deter  or  detect  fraud  or  to  confirm  the  identity  of  voters.  Photo  IDs  currently  are  needed 
to  board  a  plane,  enter  federal  buildings,  and  cash  a  check.  Voting  is  equally  important."  (footnote 
omitted)). 

89.  For  a  discussion  on  the  impact  of  the  vote-by-mail  system  implemented  in  Oregon,  see 
generally  Priscilla  L.  Southwell  &  Justin  Burchett,  Vote-by-Mail  in  the  State  of  Oregon,  34 
Willamette  L.  Rev.  345  (1998). 

90.  See  Fortier  &  Ornstein,  supra  note  58,  at  5 12-13  (detailing  the  theoretical  problems  with 
absentee  ballots  and  noting  actual  instances  of  absentee  ballot  fraud). 

9 1 .  Fitzgerald,  supra  note  60,  at  856  (noting  that  a  study  spanning  thirty  years,  all  fifty  states, 
and  presidential  and  congressional  elections  found  that  early  voting  procedures,  such  as  unrestricted 
absentee  ballots,  do  not  increase  voter  turnout.);  see  also  Gronke  et  al.,  supra  note  62,  at  644 
("There  may  be  good  reasons  to  adopt  early  voting — more  accurate  ballot  counting,  reduced 
administrative  costs  and  headaches,  and  increased  voter  satisfaction — but  boosting  turnout  is  not 
one  of  them."). 

92.  Fortier  &  Ornstein,  supra  note  58,  at  512-13. 

93.  See  generally  The  Marketplace  of  Democracy:  Electoral  Competition  and 
American  Politics  (Michael  P.  McDonald  &  John  Samples  eds.,  2006)  (examining  why  electoral 
competition  in  the  United  States  is  in  decline  and  hypothesizing  about  what  might  be  done  to 
increase  competition). 

94.  Nathaniel  Persily,  The  Place  of  Competition  in  American  Election  Law,  in  THE 
Marketplace  of  Democracy:  Electoral  Competition  and  American  Politics  171,  172 
(Michael  P.  McDonald  &  John  Samples  eds.,  2006). 

95.  Mat  173. 

96.  Id. 


20 1 0]  WHAT  THE  WORLD  CAN  LEARN  1 0 1 


maybe  an  indispensable  element  of  democracy,  even  though  close  elections  place 
great  stress  on  almost  any  electoral  system.  The  2000  presidential  election 
controversy  in  the  United  States,  like  the  one  in  Mexico  six  years  later,97  must  be 
a  relatively  rare  event  if  the  system  is  to  withstand  the  inevitable  allegations  of 
malfeasance  that  accompany  any  razor-thin  victory.98 

This  discussion  leads  to  the  final  value  reform  should  further:  preserving 
public  confidence  in  the  electoral  system.  Public  confidence  and  trust  in  the 
system,  while  foundational  to  accord  legitimacy  to  the  government,  turns  out  to 
be  very  difficult  to  achieve  in  some  deliberate  way.99  Of  course,  at  the  margins, 
a  system  that  is  completely  non-transparent  and  seems  to  produce  repeated  results 
that  fly  in  the  face  of  what  majority  preferences  would  seem  to  predict  will  be 
crippled  by  a  lack  of  confidence.  Beyond  the  obvious  cases  of  faux  democracies, 
however,  few  agreed-upon  strategies  exist  to  maintain  public  confidence  when 
the  system  is  under  stress.  This  is  not  to  say  that  all  countries  have  populations 
with  equal  degrees  of  skepticism  of  their  political  system.  Rather,  the  predictors 
of  the  levels  of  mistrust  vary  greatly  based  on  cultural100  and  institutional 
contexts101  and  the  nature  of  political  cleavages  in  the  democracy.  Confidence  in 
the  electoral  system  will  often  vary  with  confidence  in  government  and  public 
structures  more  generally,102  and  election  administration  and  law  can  only  do  so 
much  to  address  those  larger  concerns. 

Losers  in  close  elections  will  often  challenge  the  validity  of  the  process  that 


97.  Manuel  Roig-Franzia,  Contender  Alleges  Mexico  Vote  Was  Rigged,  WASH.  POST,  July 
9,2006,  at  Al. 

98.  Nat'l  Comm'n  on  Fed.  Election  Reform,  supra  note  83,  at  17  (noting  that  in  1996, 
three-quarters  of  the  population  felt  that  the  electoral  process  was  fair,  which  then  dropped  to  one- 
half  after  the  2000  election). 

99.  See  Pew  Research  Ctr.  for  the  People  &  the  Press,  How  Americans  View 
Government:  Deconstructing  Distrust  (Mar.  10,  1998),  available  at  http ^/people- 
press.  org/report/95/  (noting  that  Americans'  distrust  of  government  tends  to  remain  relatively 
constant  throughout  the  decades,  with  slight  vacillations  due  to  political  scandals  and  economic 
downturns);  see  generally  Why  People  Don't  Trust  Government  (Joseph  S.  Nye  et  al.  eds, 
1997)  (analyzing  likely  causes  of  declining  public  confidence).  In  fact,  public  trust  in  government 
and  political  institutions  has  declined  in  all  industrialized  democracies  since  the  1990s,  although 
in  varied  patterns  and  levels.  See  Peri  K.  Blind,  Building  Trust  in  Government  in  the 
Twenty-First  Century:  Review  of  Literature  and  Emerging  Issues  8  (Nov.  2006),  available 
at  http://unpanl.un.org/intradoc/groups/public/documents/un/unpan025062.pdf. 

100.  Blind,  supra  note  99,  at  8  (finding  that  the  decrease  in  public  trust  in  government  was 
blamed  on  a  variety  of  reasons,  such  as  continuing  tensions  on  nationalism  and  separatism  in 
Canada  and  the  strains  of  unification  in  Germany). 

101.  Id.  2X1  (rinding  that,  for  example,  civic  engagement  and  political  trust  are  positively 
correlated  in  the  industrialized  world,  but  in  developing  countries  like  the  Dominican  Republic  and 
Morocco,  civic  engagement  actually  decreases  trust,  as  it  exposes  citizens  to  the  corrupt  and 
illegitimate  daily  practices  of  government). 

102.  Id.  at  1 1-12, 20  (concluding  that  economic  challenges  and  political  scandal  appear  to  be 
two  major  contributors  to  the  declining  trust  in  government). 


102  INDIANA  LAW  REVIEW  [Vol.  44:85 


determined  the  victor.  Whether  valid  or  not,  supporters  of  the  loser  will  express 
a  lack  of  confidence  in  the  process.103  The  critical  question  is  whether  those 
feelings  of  mistrust  subside  over  time  or  produce  widespread  apathy  or  organized 
violence.104  This  will  depend  in  part  on  whether  the  institutions  overseeing 
elections  have  built  up  a  repository  of  goodwill  that  allows  them  to  survive  the 
stress  of  close  elections.105  To  be  sure,  a  record  of  nonpartisanship  and 
institutional  buffers  against  political  pressures  may  help,  just  as  would  inclusion 
of  all  potentially  critical  parties  in  decision  making  processes  and  institutional 
design  in  the  pre-election  period.  Even  the  most  cautionary,  well-meaning 
designers  of  institutions,  however,  should  not  overestimate  their  ability  to  prevent 
the  inevitable  loss  of  confidence  among  sore  losers  in  a  close  election.106  Rather 
than  worry  about  perceptions  of  fairness  and  accuracy,  reformers  would  do  well 
to  focus  on  actually  making  the  process  fair  and  accurate  with  the  hope  that  the 
public  will  recognize  it  as  such. 

III.  Metrics  for  Success 

Listing  the  values  that  an  election  administration  system  ought  to  achieve, 
even  while  recognizing  that  they  are  in  tension,  is  easier  than  providing  agreed- 
upon  metrics  to  evaluate  the  fulfillment  of  such  goals.  What  follow  in  this 
subsection  are  potential  metrics  that  different  democracies  have  employed  to 
measure  fulfillment  of  those  goals.  As  with  the  values  themselves,  it  may  be 
impossible  to  maximize  along  all  metrics  simultaneously,  and  basic  features  of 
the  political  or  electoral  system  may  make  achievement  more  difficult  in  some 
contexts.  That  said,  these  metrics  can  often  be  adjusted  to  accommodate  local 
institutional  capabilities  and  political  realities. 


1 03.  After  the  2000  presidential  election,  three-quarters  of  Democrats  doubted  the  fairness  of 
the  process.  Nat'l  Comm'n  on  Fed.  Election  Reform,  supra  note  83,  at  17. 

104.  See,  e.g.,  Allan  J.  Cigler  &  Russell  Getter,  Conflict  Reduction  in  the  Post-Election 
Period:  A  Test  of  the  Depolarization  Thesis,  30  W.  POL.  Q.  363,  363-64  (1977)  (finding  that  with 
one  exception,  polarization  in  the  United  States  has  not  led  to  violent  resistence  to  a  regime);  Steve 
Inskeep  &  Gwen  Thompkins,  Kenya 's  Post-Election  Violence  Kills  Hundreds,  Nat'l  Pub.  Radio 
(Jan.  2, 2008),  http://\wvw.npr.org/templates/story/story.php?storyId=l  7774507  (reporting  on  the 
violence  that  surrounded  the  2008  presidential  election  in  Kenya). 

105.  Cigler  &  Getter,  supra  note  104,  at  363  ("Continued  citizen  support  in  the  post-election 
period  depends  on  the  widespread  belief  that  the  electoral  contest  has  been  resolved  legitimately 
and  that  the  mantle  of  authority  has  been  conferred  upon  the  regime  in  a  manner  deserving  of 
respect  and  support  for  the  collective  decision."). 

106.  One  author  notes  that  the  cognitive  dissonance  resulting  from  the  preferred  candidate's 
loss  (i.e.,  "my  candidate  is  the  best  candidate"  versus  "my  candidate  lost")  may  be  psychologically 
dealt  with  by  denying  that  the  preferred  candidate  actually  lost  at  all,  thus  resulting  in  greater 
polarization  of  political  sentiments  after  the  election  (e.g.,  "the  other  candidate  only  won  because 
of  voter  fraud").  Id.  at  366-67. 


20 1 0]  WHAT  THE  WORLD  CAN  LEARN  1 03 


A.  Lost  Votes 

In  the  wake  of  the  2000  U.S.  presidential  election  controversy,  the 
Caltech/MIT  Voting  Technology  Project  ("the  Project")  developed  a  measure  of 
lost  votes  to  calculate  the  total  number  of  voters  whose  votes  were  not  counted 
or  were  otherwise  prevented  from  voting.107  The  measure  identifies  the  number 
of  ballots  cast  that  were  not  counted  plus  the  number  of  voters  who  were 
prevented  from  voting  due  to  problems  with  their  registration.108  The  Project 
estimated  that  according  to  this  measure,  four  to  six  million  votes  were  lost  in  the 
2000  presidential  election.109 

Calculating  the  number  of  lost  votes  requires  good  data  on  the  number  of 
voters  who  attempt  to  vote,  the  number  of  ballots  that  are  cast,  and  the  number 
that  are  counted.  These  constitute  basic  pieces  of  information  that  any  election 
system  ought  to  maintain,  but  they  require  some  kind  of  uniform,  centralized 
clearinghouse  for  the  information.110  Moreover,  to  record  voter  intentions  and  the 
reasons  for  failing  to  vote  may  require  comprehensive  surveys  in  the  wake  of  an 
election.111  Official  totals  can  only  calculate  the  pieces  of  paper — whether  actual 
votes  or  names  on  a  turnout  tally — that  were  in  fact  delivered.  For  those  who 
failed  to  participate  in  the  system,  surveys  may  be  the  only  way  to  assess  their 
number  and  reasons  for  nonparticipation. 

For  the  most  part,  the  number  or  share  of  votes  that  are  lost  provides  a  gauge 
for  assessing  the  failure  of  the  electoral  regime  to  translate  voter  intentions  into 
actual  votes.  The  measure  does  not  distinguish  intentional  fraud  from 
unintentional  malfunction.  Votes  could  go  uncounted  either  because  the 
machines  do  not  register  a  vote112  or  because  vote  counters  do  not  count  them.113 


1 07.  Cal.  Inst,  of  Tech.  &  Mass.  Inst,  of  Tech.,  supra  note  3 1 ,  at  8. 

108.  Id.  (finding  that  7.4%  of  the  forty  million  registered  voters  who  did  not  vote  listed 
registration  problems  as  the  cause). 

109.  Id. 

110.  The  Voting  Technology  Project  recommends  that  the  federal  government  fund  an 
independent  agency  for  election  administration  that  "would  perform  the  sort  of  information 
clearinghouse  function  that  it  would  see  as  necessary  in  order  to  establish  best  practices  and  to 
improve  the  information  that  counties  have  when  they  purchase  equipment."  Id.  at  54. 

111.  For  many  years,  the  only  data  source  for  studies  on  voter  registration  problems  was  the 
U.S.  Census  Bureau's  Current  Population  Survey  Voting  Supplement,  which  asked  eligible  citizens 
if  they  voted,  and  if  they  did  not  vote,  if  they  were  registered.  Alvarez,  supra  note  82,  at  4.  If  a 
voter  was  registered  but  did  not  vote,  he  was  then  given  the  opportunity  to  choose  one  reason  from 
a  list  of  reasons  for  not  voting.  Id.  Recently,  however,  a  Voting  Technology  Project  research  team 
developed  the  first  major  survey-based  research  effort  to  study  voter  experience  and  election 
performance.  Id.  at  5-6.  According  to  the  researchers,  this  survey  allows  for  a  much  more  nuanced 
examination  of  voter  problems,  including  the  types  of  problems  faced  as  well  as  where  those 
problems  are  occurring  and  the  magnitude  of  the  problems.  Id.  at  4-7. 

1 12.  For  example,  in  the  2000  election,  678  votes  were  not  counted  in  New  Mexico's  Rio 
Arribe  County,  and  the  state  had  the  narrowest  winning  margin  of  only  366  votes.  Despite  the  fact 
that  voters  utilized  state-of-the-art  push-button  electronic  voting  machines,  it  appears  that  a 


104  INDIANA  LAW  REVIEW  [Vol.  44:85 


Similarly,  problems  with  the  registration  system  could  reflect  either  negligence 
or  intentional  efforts  to  register  some  voters  and  not  others.  The  potential 
recommended  policy  changes  will  depend  on  the  cause  of  the  lost  votes.114  They 
could  range  from  a  change  in  balloting  or  registration  technology  to  better 
training  of  election  workers.115  If  intentional  malfeasance  is  the  suspected  cause 
of  lost  votes,  then  it  may  be  appropriate  to  recommend  measures  to  increase 
transparency  and  bring  multiple  stakeholders  into  the  process  of  administration 
and  vote  counting.116 

B.  Turnout 

Voter  turnout  may  be  the  election  phenomenon  political  scientists  have 
studied  most  intensely,  and  it  may  be  the  metric  most  easily  measured  to  gauge 
a  democracy's  health.  Although  many  questions  still  remain  (such  as  why  voter 
turnout  seems  to  have  declined  across  the  world  over  the  last  generation117),  many 
of  the  causes  and  correlates  for  high  voter  turnout  are  well-known.  At  the  same 
time,  methodological  controversies  often  exist  in  how  to  measure  voter  turnout. 
The  number  of  voters  is  often  well-known  from  official  statistics,  but  assessing 
the  appropriate  denominator  to  measure  turnout  often  proves  more  difficult  than 
one  might  think  at  first  blush. 

Although  many  denominators  could  be  contrived,  the  most  popular  employed 
are  the  voting  age  population,  the  citizen  voting  age  population,  and  the  eligible 
voting  population.  The  choice  among  denominators — that  is,  turnout  of  which 
population — will  affect  one's  inferences  as  to  potential  causes  for  lower  turnout. 
For  example,  people  have  speculated  for  years  as  to  why  voter  turnout  has 
decreased  in  the  United  States  over  the  past  four  decades.118    Upon  closer 


programming  error  resulted  in  the  permanent  loss  of  these  votes.  Dan  Keating,  Lost  Votes  in  N.M. 
a  Cautionary  Tale:  As  Election  Day  Nears,  a  Look  at  Problems  in  2000  Shows  Fallibility  of 
Machines,  WASH.  POST,  Aug.  22,  2004,  at  A5. 

113.  For  a  discussion  of  ways  to  improve  the  training  and  recruitment  of  poll  workers,  see 
Ctr.  for  Democracy  &  Election  Mgmt.,  supra  note  6,  at  54-55. 

114.  Cal.  Inst,  of  Tech.  &  Mass.  Inst,  of  Tech.,  supra  note  31,  at  10  (distinguishing 
between  the  "social  problem"  of  fraud  and  the  "engineering  problem"  of  error). 

115.  See  Nat'l  Comm'n  on  Fed.  Election  Reform,  supra  note  83,  at  6-14  (setting  forth 
fourteen  policy  recommendations,  including  the  implementation  of  statewide  voter  registration  lists 
and  provisional  voting,  the  creation  of  a  national  holiday  for  presidential  and  congressional 
elections,  and  the  drafting  of  federal  standards  for  voting  equipment). 

1 1 6.  Cal.  Inst,  of  Tech.  &  Mass.  Inst,  of  Tech.,  supra  note  3 1 ,  at  1 0  (suggesting  penalties 
for  electoral  fraud  and  improved  detection  methods  to  deter  fraudulent  voting  practices). 

117.  Michael  McDonald,  Voter  Turnout,  United  States  Elections  Project, 
http://elections.gmu.edu/voter_turnout.htm  (last  visited  July  17,  2010). 

1 1 8.  See  generally  WARREN  E.  MILLER  &  J.  MERRILL  SHANKS,  The  NEW  AMERICAN  VOTER 
(1996)  (a  comprehensive  attempt  to  explain  electoral  behavior  in  presidential  elections);  Ruy  A. 
Teixeira,  The  Disappearing  American  Voter  (1992)  (empirically  analyzing  why  voter  turnout 
rates  have  declined  and  examining  potential  ways  to  increase  turnout);  Paul  R.  Abramson  &  John 


20 1 0]  WHAT  THE  WORLD  CAN  LEARN  1 05 


analysis,  it  appears  that  a  statistical  quirk  has  been  responsible  for  much  of  the 
alleged  recent  decrease.1 19  The  share  of  the  voting-age  population  that  has  turned 
out  in  each  election  does  appear  to  have  declined,  but  the  share  of  the  eligible 
population  turning  out  has  remained  relatively  constant.  The  perceived  decrease 
has  resulted  from  an  increase  in  the  share  of  non-citizens  and  prisoners  in  the 
voting  age  population  due  to  high  levels  of  immigration  and  incarceration.120 
Neither  group  can  vote;  therefore,  increases  in  the  ineligible  share  of  the  voting 
age  population  make  it  appear  that  a  lower  share  of  the  population  is  actually 
turning  out. 

Correlates  and  causes  of  low  voter  turnout  can  be  divided  into  institutional 
and  individual  characteristics.  The  institutional  characteristics  can  be  further 
divided  according  to  electoral  system  features  and  election  law  regimes.  The 
features  of  the  electoral  system  concern  the  way  votes  are  translated  into  seats  or 
offices,  whereas  election  law  regimes  tend  to  vary  according  to  the  ease  with 
which  eligible  voters  can  vote. 

Cross-national  studies  have  identified  a  range  of  features  of  electoral  systems 
that  affect  levels  of  voter  turnout.121  The  clearest  demarcation  is  between 
proportional  representation  systems  and  single-member  district  (SMD)  plurality- 
based  systems.  Proportional  systems,  in  which  votes  are  directly  translated  into 
seat  shares  in  the  legislature,  tend  to  produce  higher  levels  of  turnout  than  SMD 
systems,  in  which  votes  for  losing  candidates  are  effectively  "wasted."122 
Similarly,  the  number  of  viable  political  parties  in  a  system  seems  to  affect  the 
turnout  rate  up  to  a  point.123    Increasing  the  number  of  parties  past  five  or  so 


H.  Aldrich,  The  Decline  of  Electoral  Participation  in  America,  76  Am.  POL.  SCI.  REV.  502,  502 
(1982)  (suggesting  that  declining  voter  turnout  is  substantially  the  result  of  "weakening  of  party 
identification  and  declining  beliefs  about  government  responsiveness"). 

1 19.  The  denominator  for  the  voter  turnout  rate  typically  relies  on  the  U.S.  Census  Bureau, 
which  measures  voting-age  population  (VAP),  including  people  ineligible  to  vote,  such  as  non- 
citizens,  felons,  and  the  mentally  incompetent.  Michael  P.  McDonald  &  Samuel  L.  Popkin,  The 
Myth  of  the  Vanishing  Voter,  95  Am.  Pol.  SCI.  REV.  963,  964  (2001). 

120.  See  id.  at  963. 

121.  See  generally  Andre  Blais,  What  Affects  Voter  Turnout?,  9  ANN.  REV.  OF  POL.  SCI.  1 1 1 
(2006)  (reviewing  the  Powell  and  Jackman  articles,  as  well  as  more  recent  research  on  voter 
turnout);  Robert  W.  Jackman,  Political  Institutions  and  Voter  Turnout  in  the  Industrial 
Democracies,  81  Am.  Pol.  Sci.  Rev.  405,  407-09  (1987)  (discussing  five  major  factors  that 
influence  voter  turnout:  nationally  competitive  districts,  electoral  disproportionality,  multipartyism, 
unicameralism,  and  compulsory  voting);  G.  Bingham  Powell,  Jr.,  American  Voter  Turnout  in 
Comparative  Perspective,  80  Am.  Pol.  SCI.  REV.  17,  18  (1986)  (arguing  that  the  American 
institutional  setting,  particularly  its  party  system  and  registration  laws,  severely  inhibits  voter 
turnout). 

122.  Powell,  supra  note  121,  at  21  ("With  proportional  representation  from  the  nation  as  a 
whole  or  from  large  districts,  parties  have  an  incentive  to  mobilize  everywhere.  With  single- 
member  districts,  some  areas  may  be  written  off  as  hopeless."). 

123.  See  Arend  Lijphart,  Democracies:  Patterns  of  Majoritarian  and  Consensus 
Government  in  Twenty-One  Countries  1 06- 14  ( 1 984)  (describing  benefits  and  critiques  of  the 


106  INDIANA  LAW  REVIEW  [Vol.  44:85 


appears  to  have  a  dampening  effect  on  turnout.124  This  curvilinear  relationship 
might  be  explained  by  the  effect  of  the  party  system  on  attitudes  toward  political 
efficacy.  Voters  may  prefer  three  or  four  parties  to  two,  given  that  they  may  find 
in  that  range  at  least  one  party  that  effectively  represents  them.125  As  the  number 
of  parties  grows  beyond  that,  the  translation  of  voter  preferences  gets  blurred  by 
deals  made  to  secure  a  governing  coalition,  such  that  voters  may  sense  that  their 
individual  vote  is  far  removed  from  the  actual  choice  of  who  will  govern  the 
country.126  Fragile  governing  coalitions  lead  to  greater  uncertainly  in  how  an 
individual's  vote  will  translate  to  a  shift  in  government  policy. 

As  electoral  systems  may  vary  in  the  way  they  translate  votes  into  seats, 
election  law  regimes  vary  in  how  easy  they  make  voting.  Of  course,  countries 
that  explicitly  disenfranchise  groups  of  voters,  such  as  prisoners,  new  residents, 
or  mentally  incompetent  people127  (let  alone  women  or  racial  minorities),  may 
have  marginally  lower  turnout  due  to  such  measures.  The  same  could  be  said  for 
countries  where  voters  are  intimidated  from  voting.  But  as  discussed  above,  the 
main  source  of  variation  concerns  the  voting  obstacles  that  different  democracies 
impose.  The  frequent  requirement  of  compulsory  voting  found  in  Latin  America 
and  elsewhere — such  as  Australia  and  Belgium — has  an  obvious  effect  on  raising 
voter  turnout,  even  when  the  penalties  for  not  voting  are  quite  low  or  the  law  goes 
unenforced.128  Conversely,  burdensome  voter  registration  laws  and  a  lack  of 
government  effort  to  register  voters  will  suppress  turnout.  Beyond  that,  measures 
that  make  voting  convenient  represent  a  somewhat  mixed  bag.  In  the  United 
States,  it  appears  that  same-day  registration — that  is,  allowing  new  voters  to 
register  on  the  same  day  that  they  vote — somewhat  heightens.129  Early  and 
absentee  voting  innovations,  however,  do  not  seem  to  have  affected  turnout 
much;130  it  appears  that  voters  who  choose  those  methods  of  voting  would 
probably  have  voted  anyway  without  those  innovations.131 

Although  laws  and  electoral  systems  affect  turnout  levels,  we  know  that 
demographic  characteristics  strongly  predict  whether  an  individual  will  vote. 


two-party  system  versus  the  multiparty  system). 

124.  Id.  at  120-23  (using  the  Laakso-Taagepera  index  to  find  that  across  twenty-two 
democracies,  the  effective  number  of  parties  ranged  from  two  to  five). 

125.  Mat  113-14. 

1 26.  See  id.  at  1 1 0.  But  see  generally  AlNA  GALLEGO  ET  AL.,  NUMBER  OF  PARTIES  AND  VOTER 
Turnout:  Evidence  from  Spain  (2009),  available  at  http://polnet.wikispaces.com/file/ 
view/Numberof j3arties_and_voter_Uirnout.pdf  (finding  that  the  number  of  political  parties  has 
a  positive  effect  on  voter  turnout,  as  those  less  in  politics  are  more  likely  to  vote  when  they  have 
more  choices). 

127.  See  supra  notes  84-86. 

1 28.  See  Jackman,  supra  note  1 2 1 ,  at  409  (noting  that  mandatory  voting  laws  will,  even  if  not 
enforced,  lead  to  higher,  but  not  perfect,  voter  turnout). 

1 29.  See  Brians  &  Grofman,  supra  note  1 9,  at  1 70  (finding  that  election  day  registration  results 
in  an  increase  in  voter  turnout  of  approximately  seven  percentage  points  in  the  average  state). 

1 30.  See  Fitzgerald,  supra  note  60,  at  854-56. 

131.  See  Gronke  et  al.,  supra  note  62,  at  642-43. 


20 1 0]  WHAT  THE  WORLD  CAN  LEARN  1 07 


Education132  and  age  tend  to  be  the  strongest  predictors  of  turnout,  with  more 
educated  and  older  voters  being  more  likely  to  vote.133  Unsurprisingly,  those  with 
a  heightened  sense  of  civic  responsibility,134  political  efficacy,135  and  social 
connectivity136  are  more  likely  to  turn  out  to  vote.  Those  who  have  frequent 
contact  with  the  government,  either  because  they  work  closely  with 
government137  or  in  economic  sectors  highly  dependent  on  government 
benefits,138  are  more  likely  to  vote.  The  same  is  true  for  those  with  close 
connections  to  political  parties  or  for  members  of  groups  who  are  closely  aligned 
with  political  parties.139  Of  course,  in  countries  where  groups  boycott  elections 
or  widespread  fraud  makes  voting  appear  inconsequential,  turnout  will  suffer. 

C.  Incidences  of  Fraud 

Fraud  is  the  most  difficult,  and  perhaps  most  important,  electoral 
phenomenon  to  measure.  Scholars  have  tried  their  best  to  do  so  with  limited 
success.  When  successful,  fraud  by  its  nature  will  go  undetected.  Thus, 
capturing  the  amount  of  fraud  in  an  electoral  system  requires  fine-tuned 
assessments  of  what  a  fraud-free  election  would  produce  so  that  irregularities  can 
be  eradicated. 

One  must  define  fraud  to  measure  it,  and  many  definitions  abound.140  Fraud 
refers  to  more  than  election  irregularities  or  the  failure  to  count  every  vote; 
otherwise,  a  whole  host  of  dysfunctions  would  be  considered  fraudulent. 
Moreover,  officially  sponsored  disenfranchisement  could  be  seen  as  fraud,  but  for 
the  most  part,  fraud  refers  to  efforts  in  secret  or  when  those  committing  the  fraud 
do  not  acknowledge  the  fraud.  It  generally  refers  to  intentional,  illegal  action  to 
alter  vote  totals  so  as  to  change  the  outcome  of  an  election.141  This  could  be  done 


1 32.  Similarly,  education  is  positively  correlated  with  citizen  trust.  R.  Michael  Alvarez  et  al., 
Are  Americans  Confident  Their  Ballots  Are  Counted?,  70  J.  POL.  754,  763  (2008). 

133.  Carol  A.  Cassel  &  David  B.  Hill,  Explanations  of  Turnout  Decline:  A  Multivariate  Test, 
9  Am.  Pol.  Q.  181,  186-87  (1981). 

134.  Id.  at  182. 

135.  Id. 

136.  Marvin  E.  Olsen,  Social  Participation  and  Voting  Turnout:  A  Multivariate  Analysis,  37 
Am.  Soc.  Rev.  317,317(1972). 

1 37.  M.  Margaret  Conway,  Political  Participation  in  the  United  States  3 1  (3d  ed. 
2000). 

138.  Id.  at  30. 

139.  Cassel  &  Hill,  supra  note  133,  at  182. 

1 40.  Justin  Levitt,  Brennan  Ctr.  for  Justice,  The  Truth  About  Voter  Fraud  4  (Nov. 
9,  2007),  available  at  http://brennan.3cdn.net/e20e42 10db075b482b_wcm6ib0hl.pdf;  Lorraine 
C.  Minnite,  Project  VOTE,  The  Politics  of  Voter  Fraud  6,  available  at  http://www.bradblog. 
com/Docs/PoliticsofVoterFraudFinal.pdf  (last  visited  Sept.  3, 2010)  (noting  that  there  is  no  single 
accepted  definition  of  voter  fraud). 

141.  See  Minnite,  supra  note  1 40,  at  6. 


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by  traditional  ballot  box  stuffing,142  changing  vote  tallies,  destroying  votes,  or 
obstructing  voters  who  support  particular  candidates  or  parties.143 

One  way  to  "measure"  fraud  is  to  rely  on  official  reports.  One  can  look  at  the 
number  of  fraud  prosecutions  or  incident  reports  at  polling  places.144  One  can 
also  perform  surveys  of  voters  and  election  administrators  to  gather  their 
assessments  as  to  the  extent  of  fraudulent  action  in  a  given  election.  Finally, 
post-election  audits  of  ballots  may  shed  light  on  irregularities  occurring  in  certain 
areas. 

The  data  and  measurement  challenge  becomes  how  to  identify  patterns  for 
which  no  reasonable  alternative  other  than  fraudulent  behavior  explains 
irregularities  in  the  data.  If  an  "unnatural"  or  aberrant  number  of  votes  appears 
to  have  been  cast  for  a  particular  party  in  an  area  where  the  party  should  not  have 
so  performed,  an  inference  of  irregularity  might  be  supportable.  Moreover,  if  a 
pattern  emerges — for  example,  when  one  party  is  in  charge  of  the  vote  counting 
and  a  surprising  number  of  votes  appears  to  have  been  cast  for  its 
candidates — then  similar  inferences  might  be  appropriate.  In  other  words,  the 
burden  of  proof  might  shift  to  those  who  would  explain  the  irregularity  as 
produced  by  something  other  than  fraud.145 

The  more  incompetent  the  fraud,  the  easier  it  is  to  detect.  In  some  countries, 
it  will  be  easy  to  point  out  that  many  more  or  many  fewer  ballots  were  counted 
in  an  election  as  compared  to  the  number  of  voters  who  appeared  at  the  polls  or 
even  the  number  of  voters  in  a  jurisdiction.  When  fraudsters  are  more 
sophisticated,  statistical  models  can  provide  the  necessary  tools  to  unearth 
systematic  irregularities.  Such  has  been  the  case  in  recent  elections  in  Russia,146 
Iran,147  and  Afghanistan,148  for  example.  By  comparing  reported  vote  totals  to 
what  a  statistical  model  would  predict  based  on  past  behavior,  turnout  in  the 
election,  exit  polls,  and  comparable  statistics  from  around  the  country,  one  can 


142.  For  an  example  of  absentee  ballot  box  stuffing,  see  United  States  v.  Boards,  1 0  F.3d  587 
(8th  Cir.  1993). 

143.  For  a  discussion  of  the  different  categories  of  voter  fraud,  see  Levitt,  supra  note  140,  at 
12-22. 

144.  See,  e.g.,  Att'y  Gen.,  U.S.  Dep't  of  Justice  Pub.  Integrity  Section,  Report  to 
Congress  on  the  Activities  and  Operations  of  the  Public  Integrity  Section  for  2006,  at 
40-42  (2006),  available  at  http://www.justice.gov/criminal/pin/docs/arpt-2006.pdf  (describing  a 
number  of  prosecutions  for  voter  fraud  cases). 

145.  See,  e.g. ,  Levitt,  supra  note  1 40,  at  7- 1 1  (compiling  a  list  of  the  methodological  flaws  that 
result  in  allegations  of  voter  fraud  when  in  fact  no  such  fraud  exists). 

146.  Luke  Harding  &  Tom  Parfitt,  Fraud,  Intimidation  and  Bribery  as  Putin  Prepares  for 
Victory,  GUARDIAN,  Nov.  30, 1997,  at  24,  available  at  http://www.guardian.co.uk/world/2007/nov/ 
30/russia.politics. 

1 47.  Farnaz  Fassihi,  Iran  Council  to  Investigate  Election-Fraud  Claim,  WALL  St.  J.  (June  1 6, 
2009),  http://online.wsj .com/article/SB  1 24505670 1 982 1 4769.html. 

1 48 .  Joshua  Partlow  &  Pamela  Constable,  Accusations  of  Vote  Fraud  Multiply  in  Afghanistan, 
Wash.  Post  (Aug.  28, 2009),  http://www.washingtonpost.com/wp-dyn/content/article/2009/08/27/ 
AR2009082704199.html. 


2010]  WHAT  THE  WORLD  CAN  LEARN  109 


raise  serious  questions  as  to  the  legitimacy  of  reported  results. 

D.  Popular  Trust  and  Confidence  in  the  System 

Because  fraud  is  difficult  to  prove  with  the  specificity  required  by  official 
observers,  it  is  popular  for  critics  to  rely  on  perceptions  of  fraud.  More  generally, 
those  seeking  to  combat  fraud  rely  on  popular  confidence  as  the  measure  of  a 
functioning  electoral  system.  An  electoral  system  cannot  produce  legitimate 
outcomes  if  the  people  do  not  trust  the  reported  results.  However,  because  a  lack 
of  confidence  in  the  system  can  be  the  result  of  factors  unrelated  to  actual 
administrative  failures  or  intentional  wrongdoing,149  officials  may  find  that 
popular  confidence  is  a  tricky  value  to  satisfy. 

One  can  measure  such  confidence  at  the  level  of  elites  or  the  mass  public.  In 
some  democracies,  elite  boycotts  of  elections  or  mass  protests  could  signal  a  lack 
of  confidence.  The  propensity  for  litigation  or  criticism  from  the  media  or  non- 
governmental organizations  might  also  signal  a  lack  of  confidence.  We  can 
measure  popular  confidence  by  asking  a  representative  sample  of  the  population 
a  series  of  survey  questions  directed  at  measuring  their  attitudes  toward  the 
electoral  system.  Questions  such  as  "How  much  confidence  do  you  have  that 
your  vote  will  be  counted?"  or  "How  confident  are  you  that  the  declared  winner 
in  this  election  received  the  most  votes?"  can  be  complemented  by  more  specific 
queries  as  to  attitudes  about  polling  place  practices  and  election  administration.150 

To  reiterate,  attitudes  toward  the  "system"  often  reflect  respondents' 
predispositions  as  to  who  they  believe  should  have  won  the  election.  "Sour 
grapes"  over  legitimate  election  results  are  often  expressed  as  a  lack  of 
confidence  in  the  system.  Isolating  legitimate  grievances  against  the  election 
administration  regime  from  mere  complaints  that  the  less  preferable  candidate 
won  proves  to  be  quite  challenging.151  Moreover,  such  feelings  of  confidence  in 
the  system  are  often  reflective  of  attitudes  toward  government  and  the  economy. 
The  happier  one  is  with  government,  the  more  likely  one  is  to  trust  its  election 
results.  Those  feelings  toward  government  and  social  institutions  will  be  affected 
by  much  more  than  behavior  during  elections.  Tweaking  the  election 
administration  regime  can  do  little  to  assuage  the  concerns  of  people  as  to  their 
position  in  life  or  the  government's  responsibility  for  it. 


1 49.  See  supra  notes  99- 1 06  and  accompanying  text. 

150.  For  example,  one  study  designed  to  determine  voters'  confidence  in  their  vote  being 
recorded  correctly  asked,  "How  confident  are  you  that  your  ballot  for  president  in  the  2004  [,  2000 
where  applicable,]  election  was  counted  as  you  intended?"  Respondents  could  choose  from  the 
following  options:  very  confident,  somewhat  confident,  not  too  confident,  or  not  at  all  confident. 
These  responses  were  then  categorized  into  two  groups:  confident  and  not  confident.  After  the 
2000  election,  90.9%  were  confident  their  votes  were  counted,  and  after  the  2004  election,  88.2% 
were  confident  that  their  votes  were  counted.  See  Alvarez,  supra  note  132,  at  758. 

151.  See  supra  notes  99- 1 06  and  accompanying  text. 


1 10  INDIANA  LAW  REVIEW  [Vol.  44:85 


Conclusion 

Generalizing  international  lessons  from  one  country's  experience  is  always 
a  tricky  business.  Because  of  the  panoply  of  problems  it  revealed  in  the  electoral 
system  of  a  leading  democracy,  the  2000  U.S.  presidential  election  provides  a 
useful  template  for  categorizing  the  challenges  each  democracy  faces  in  running 
elections.  When  elections  are  decided  by  a  small  number  of  votes,  we  feel  the 
need  to  examine  many  features  of  the  system  that  could  have  altered  the  outcome. 
Such  inquiries  can  improve  the  functioning  of  the  electoral  system  when  it  is  not 
in  the  throes  of  a  crisis. 

While  recognizing  that  every  country  is  unique  and  its  problems  are 
embedded  in  a  specific  cultural,  political,  and  institutional  context,  several  lessons 
from  the  U.S.  experience  can  be  instructive  beyond  its  shores.  Most  famously, 
the  United  States  learned  in  2000  how  faulty  technology  (in  this  instance,  punch- 
card  ballots)  can  lead  to  millions  of  votes  going  uncounted.152  The  same  could 
be  said  for  problems  with  ballot  design,  which  led  to  thousands  of  voter 
mistakes.153  Fixing  those  technological  problems  proved  more  difficult  than 
people  first  thought,  as  precipitous  adoption  of  electronic  voting  came  under  fire 
for  raising  security  questions  and  other  concerns.154  Nevertheless,  the  academic 
study  of  lost  votes  in  the  wake  of  the  2000  election  provided  a  continuing  gauge 
of  the  success  of  technological  changes  in  translating  expressed  voter  preferences 
into  counted  votes. 

Those  studies,  however,  revealed  the  importance  of  looking  at  the  whole 
voting  process — from  "registration  to  recounts,"  as  one  set  of  authors  describes 
the  "election  ecosystem"155 — to  assess  the  proper  functioning  of  an  electoral 
system.  Once  those  studies  were  done,  the  broader  challenge  of  effective  election 
administration  came  into  sharp  relief.  The  extreme  decentralization  of  the  U.S. 
system,156  coupled  with  the  lack  of  adequate  expertise157  and  creeping  partisanship 
at  every  stage,158  constitute  impediments  to  effective,  widespread  change  that 
might  ameliorate  well-recognized  problems.  For  international  observers  of  the 
American  experience,  one  lesson  to  take  away  is  the  disconnect  between  the  law 
on  the  books  and  the  practices  on  Election  Day.  As  with  technology,  the  impact 
of  the  finest  and  most  specific  laws  will  ultimately  depend  on  the  diligence  and 
expertise  of  those  administering  them.  The  registration  system  is  a  case  in  point. 
Fixes  put  in  place  following  the  2000  election  have  had  a  mixed  impact,  as 
localities  and  even  polling  places  have  varied  considerably,  for  example,  as  to 
when  they  will  grant  a  person  the  opportunity  to  vote  by  provisional  ballot.159 


1 52.  See  supra  Part  LB. 

1 53.  See  supra  text  accompanying  notes  50-53. 

1 54.  See  supra  notes  46-47  and  accompanying  text. 

155.  See  HUEFNER  ET  AL.,  supra  note  18,  at  11-17. 

156.  See  supra  notes  1-4  and  accompanying  text. 

1 57.  See  supra  notes  5-7  and  accompanying  text. 

158.  See  supra  notes  8- 1 4  and  accompanying  text. 

1 59.  See  Pew  Ctr.  on  the  States,  supra  note  37,  at  5-6. 


20 1 0]  WHAT  THE  WORLD  CAN  LEARN  1 1 1 


The  same  could  be  said  for  a  variety  of  legal  reforms  governing  elections  in  the 
United  States  and  beyond:  Any  system  that  ultimately  relies  on  humans  to  guide 
voters  through  the  process  and  count  their  votes  will  fall  prey  to  a  series  of 
potential  human  errors. 

Although  errors  may  be  an  inherent  part  of  the  electoral  process,  they  can  be 
minimized,  and  reforms  can  target  errors  with  particular  biases.  Such  efforts  to 
ameliorate  the  types  of  problems  that  disadvantage  particular  communities, 
parties,  or  demographic  subgroups  should  be  the  highest  priority  for  a  reform 
agenda  in  the  United  States  and  elsewhere.  Although  politicians  and  the  public 
should  relax  their  expectations  of  perfection  for  election  administration,  they  have 
a  right  to  expect  that  the  imperfections  will  not  put  a  thumb  on  the  electoral  scale 
for  a  particular  group  of  people.  With  luck,  focusing  on  that  category  of  reforms 
will  translate  into  widespread  public  confidence  in  the  electoral  system.  Even  if 
reformers  are  not  so  lucky,  as  can  often  be  the  case  when  confidence  is  tied  to 
general  attitudes  toward  government,  addressing  problems  before  they  arise  in  the 
heat  of  an  election  can  ward  against  the  worst  allegations  of  illegitimacy 
regarding  the  electoral  process. 


Public  Rights  and  Private  Rights  of  Action: 
The  Enforcement  of  Federal  Election  Laws 


Daniel  P.  Tokaji" 


Introduction 

In  what  circumstances  should  there  be  a  private  right  of  action  to  sue  for 
violations  of  federal  election  statutes?1  Lying  at  the  intersection  of  federal  courts 
and  election  law,  this  question  has  arisen  in  several  recent  cases,2  as  private 
litigants  have  increasingly  called  upon  federal  courts  to  resolve  election 
disputes.3  The  question  was  before  the  U.S.  Supreme  Court  in  Brunner  v.  Ohio 
Republican  Party.4,  The  plaintiffs  in  Brunner  alleged  that  a  state  chief  election 
official  had  failed  to  follow  the  requirements  of  the  Help  America  Vote  Act  of 
2002  (HAVA)  pertaining  to  statewide  voter  registration  lists.  In  a  one-paragraph, 
unanimous  per  curiam  opinion,  the  Court  held  that  a  political  party  could  not 
bring  suit  to  enforce  this  requirement.5 

The  brevity  of  the  Brunner  decision  masks  the  significance  and  complexity 
of  the  larger  question.  To  be  sure,  under  existing  doctrine,  the  issue  before  the 
Court  in  Brunner  was  not  a  difficult  one.  In  a  series  of  opinions  over  the  last 
four  decades — only  one  of  which  involved  elections6 — the  Court  has  sharply 
curtailed  the  private  enforcement  of  federal  statutory  mandates.  It  has 
increasingly  refused  to  imply  private  rights  of  action  under  federal  statutes, 
absent  a  clear  congressional  intent  to  create  both  a  right  and  a  remedy.7  More 
recently,  the  Court  has  declined  to  recognize  a  cause  of  action  against  state  and 
local  officials  under  42  U.S.C.  §  1983,  unless  the  federal  statute 
"unambiguously"  confers  an  individual  right.8  This  is  a  high  bar,  one  that  was 
not  satisfied  in  Brunner,  given  that  the  statute  in  question  imposed  duties  on  state 


*  Professor  of  Law,  The  Ohio  State  University,  Moritz  College  of  Law.  The  author  thanks 
Meredith  Bell-Platts,  David  Gilmartin,  Rick  Hasen,  and  Mike  Pitts  for  their  helpful  comments  on 
an  earlier  draft  and  Alexander  Darr  for  his  outstanding  research  assistance. 

1 .  The  terms  "private  right  of  action"  and  "private  cause  of  action"  both  refer  to  a  non- 
governmental litigant's  ability  to  bring  suit  to  enforce  a  federal  statute.  This  Article  uses  the  former 
term. 

2.  For  a  discussion  of  these  cases,  see  infra  Part  III. 

3.  See  Richard  L.  Hasen,  The  Democracy  Canon,  62  STAN.  L.  Rev.  69,  89-90  (2009) 
(documenting  increase  in  election  litigation  between  1996  and  2008  and  the  decreasing  percentage 
of  that  litigation  in  state  courts). 

4.  129  S.  Ct.  5,  6  (2008)  (per  curiam). 

5.  Id. 

6.  See  Cort  v.  Ash,  422  U.S.  66  (1975),  abrogated  by  Touche  Ross  &  Co.  v.  Redington,  442 
U.S.  560  (1979),  and  Transamerica  Mortg.  Advisors,  Inc.  v.  Lewis,  444  U.S.  11  (1979).  For  a 
discussion  of  Cort  and  its  progeny,  see  infra  Part  II.  A. 

7.  See,  e.g.,  Alexander  v.  Sandoval,  532  U.S.  275,  293  (2001). 

8.  Gonzaga  Univ.  v.  Doe,  536  U.S.  273,  280  (2002). 


1 14  INDIANA  LAW  REVIEW  [Vol.  44: 1 13 


officials  without  conferring  a  right  on  any  identifiable  individual.9    Under 
established  doctrine,  then,  Brunner  was  a  straightforward  case. 

The  problem  is  that  existing  private-right-of-action  doctrine  fails  to  account 
for  the  vital  role  that  federal  courts  play  in  overseeing  elections  in  the  United 
States,  especially  through  pre-election  litigation.  This  failure  is  not  surprising 
given  that  the  doctrine  on  private  rights  of  action  was  fashioned  in  other  contexts. 
This  Article  argues  that  existing  doctrine,  particularly  the  requirement  that  there 
be  an  unambiguously  conferred  individual  right,  is  inappropriate  for  alleged 
violations  of  federal  election  statutes. 

The  availability  of  a  private  right  of  action  is  especially  critical  in  cases 
arising  under  election  statutes  such  as  HAVA — and  the  "unambiguously 
conferred  right"  test  especially  ill-fitting — for  both  conceptual  and  practical 
reasons.  On  a  conceptual  level,  election  cases  typically  involve  non- 
individuated,  collective  interests.10  Federal  election  statutes  are  not  solely  aimed 
at  protecting  the  individual  right  to  vote.  Although  this  is  one  of  the  interests 
they  may  promote,  federal  election  statutes  also  aim  to  serve  systemic  interests 
in  a  fair  election  process.  These  interests  are  not  always  reducible  to  individual 
harms  and  thus  cannot  adequately  be  served  by  a  myopic  focus  on  whether  the 
statute  unambiguously  confers  an  individual  right,  as  existing  doctrine  demands. 
It  follows  that  the  Court's  insistence  on  an  unambiguously  conferred  individual 
right  makes  little  sense  in  election  cases.  To  apply  such  a  test  in  the  electoral 
context  is  like  trying  to  pound  a  square  peg  into  a  round  hole. 

Existing  doctrine  is  also  problematic  from  a  practical  perspective,  given  the 
absence  of  any  institution  besides  the  federal  courts  with  the  ability  to  ensure 
consistency  in  the  interpretation  of  federal  law.  The  ultimate  consequence  is  to 
leave  the  interpretation  of  federal  election  law  in  the  hands  of  state  officials, 
except  in  those  rare  instances  when  the  federal  government  decides  to  get 
involved.  This  is  troubling  given  the  partisan  affiliation  of  most  state  and  many 
local  election  officials,  which  creates  an  inherent  conflict  of  interest  and  makes 
federal  judicial  oversight  especially  important.1  ]  In  the  absence  of  a  private  right 
of  action,  the  U.S.  Attorney  General  functions  as  the  gatekeeper  to  federal  court. 
This  exacerbates  the  conflict-of-interest  problem,  in  light  of  the  concerns  of 
partisanship  that  have  sometimes  surrounded  the  Justice  Department.12 

For  these  reasons,  this  Article  argues  that  the  Court  should  revisit  existing 


9.   The  statute  at  issue  was  42  U.S.C.  §  15483  (2006),  which  is  part  of  HAVA. 

1 0.  See  Saul  Zipkin,  Democratic  Standing,  26  J.L.  &  Pol.  (forthcoming  2011)  (manuscript 
at  1 )  (arguing  for  broad  standing  in  election  law  cases  because  they  "often  involve[]  claims  of  harm 
to  the  electorate  as  a  whole  or  to  the  democratic  process  itself). 

11.  I  discuss  the  conflict  of  interest  faced  by  election  officials  at  greater  length  in  Daniel  P. 
Tokaji,  Lowenstein  Contra  Lowenstein:  Conflicts  of  Interest  in  Election  Administration,  9 
ELECTION  L.J.  (forthcoming  2010)  [hereinafter  Tokaji,  Lowenstein  Contra  Lowenstein]. 

12.  See  Daniel  P.  Tokaji,  If  It 's  Broke,  Fix  It:  Improving  Voting  Rights  Act  Preclearance, 
49  How.  L.J.  785,  798-819  (2006)  [hereinafter  Tokaji,  If  It's  Broke,  Fix  It].  It  raises  the  spectre 
of  federal  election  statutes  being  enforced  more  aggressively — and  perhaps  only  being  enforced — 
where  they  benefit  the  party  in  control  of  the  federal  executive  branch. 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 1 5 


doctrine  on  private  rights  of  action  under  §  1983  to  facilitate  more  robust  private 
enforcement  of  federal  election  statutes.  Part  I  of  this  Article  traces  the  evolving 
judicial  role  in  overseeing  elections  during  the  past  decade.  It  then  puts  the 
increased  judicialization  of  U.S.  election  administration  in  comparative  context 
by  examining  the  electoral  role  played  by  politically  independent  institutions  in 
other  democratic  countries.  Part  II  discusses  the  Supreme  Court  doctrine  on 
private  rights  of  action,  including  both  implied  rights  of  action  and  claims  under 
§  1983.  In  both  these  lines  of  precedent,  the  Court  has  made  it  increasingly 
difficult  for  private  litigants  to  sue  under  federal  statutes  and  regulations 
generally.  As  set  forth  in  Part  III,  this  general  chariness  has  been  extended — by 
the  lower  courts  and  by  the  Supreme  Court  in  Brunner — to  cases  alleging 
violations  of  HAVA  and  other  federal  election  statutes.  Part  IV  argues  that  the 
Court's  stringent  approach  to  private  rights  of  action  is  ill-suited  to  election 
disputes,  given  that  they  involved  quintessentially  public  rights  for  which  a 
judicial  forum  is  essential. 

I.  Federal  Courts  as  Election  Overseers 

Almost  a  decade  has  passed  since  the  2000  presidential  election.  During  this 
period,  we  have  seen  both  unprecedented  legislative  attention  to  the 
administration  of  elections  and  a  marked  increase  in  election-related  litigation.13 
Although  this  story  is  quite  familiar  to  students  of  U.S.  election  administration, 
it  is  necessary  to  review  both  the  precipitating  causes  of  and  the  justifications  for 
the  judiciary's  more  active  involvement  in  overseeing  election,  in  order  to 
contextualize  the  doctrinal  questions  surrounding  private  rights  of  action.  Such 
an  examination  reveals  that  federal  courts  serve  a  function  in  the  American 
election  system  comparable  to  that  played  by  politically  independent  electoral 
institutions  in  other  countries. 

A.  Election  Litigation  in  the  United  States 

The  2000s  began,  of  course,  with  the  dispute  over  the  outcome  of  Florida's 
presidential  election  and  the  Supreme  Court's  decision  in  Bush  v.  Gore. 14  Shortly 
thereafter,  lawsuits  were  brought  in  a  number  of  states  claiming  that  the  punch- 
card  voting  systems  used  in  Florida  and  other  states  violated  federal  law, 
including  both  the  U.S.  Constitution  and  the  Voting  Rights  Act.15  Specifically, 
plaintiffs  claimed  that  these  systems  systematically  disadvantaged  voters  who 
used  them,  having  a  particularly  negative  impact  on  minority  voters.  Two  of 
these  cases  resulted  in  federal  circuit  court  decisions  holding  that  the  use  of 


1 3 .  See  Hasen,  supra  note  3,  at  89  (finding  that  the  number  of  election-related  disputes  went 
from  an  average  of  ninety-four  per  year  before  2000  to  an  average  of  237  per  year  in  the  period 
between  2000  and  2008,  peaking  at  361  in  2004). 

14.  531  U.S.  98(2000). 

1 5 .  For  a  description  of  this  litigation,  see  Daniel  P .  Tokaj  i,  The  Paperless  Chase:  Electronic 
Voting  and  Democratic  Values,  73  FORDHAM  L.  REV.  1711,  1729-30,  1742-44,  1748-54  (2005) 
[hereinafter  Tokaj i,  The  Paperless  Chase]. 


1 1 6  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


punch-cards  violated  the  Equal  Protection  Clause,  but  both  these  decisions  were 
subsequently  vacated  by  en  banc  courts.16  Enactment  of  HAVA,  which  set  new 
voting  standards  and  provided  funds  for  the  replacement  of  antiquated 
equipment,  led  to  the  virtual  extinction  of  punch-card  machines,  while  causing 
new  disputes  to  emerge  and  find  their  way  to  federal  court.  Prominent  among 
them  were  disputes  over  the  security  and  reliability  of  touchscreen  electronic 
voting  systems,  with  some  activists  going  to  court  to  argue  that  these  machines 
unconstitutionally  denied  their  votes.17  Challenges  to  electronic  voting 
technology  have  not  fared  well  in  court,  but  that  is  not  to  say  that  they  have  been 
without  impact.  In  fact,  they  have  spurred  legislative  reforms — including  the 
implementation  of  a  voter- verified  paper  audit  trail  in  many  states — as  well  as 
greater  administrative  attention  to  the  risks  associated  with  new  technology.18 

Voting  technology  is  not  the  only  area  in  which  courts  have  played  a 
prominent  role  in  the  past  decade.  The  enactment  of  HAVA  in  2002  led  to  a  new 
round  of  litigation  that  continued  through  the  2008  election  season.19  HAVA 
represented  the  federal  government's  most  intensive  intervention  in  the 
administration  of  elections  in  U.S.  history.  In  addition  to  spurring  the 
replacement  of  outdated  voting  equipment,  HAVA  imposed  minimum  standards 
for  voter  registration,  provisional  voting,  and  voter  identification,  applicable 
across  the  country.  It  also  created  an  administrative  agency,  the  Election 
Assistance  Commission  (EAC),  to  oversee  the  implementation  of  these 
requirements. 

The  degree  of  federal  involvement  in  the  conduct  of  elections  should  not  be 
exaggerated.  The  requirements  of  HAVA  are  modest,20  federal  funding  for 
elections  is  limited,  and  the  EAC  enjoys  little  power.  While  most  other 
democracies  have  strong  central  election  authorities,21  Congress's  decision  not 
to  create  such  an  entity  at  the  federal  level  was  deliberate.  As  then- 
Representative  Bob  Ney,  the  primary  Republican  sponsor  in  the  House,  stated 


1 6.  Stewart  v.  Blackwell,  444  F.3d  843, 869-70  (6th  Cir.  2006),  superseded  by  473  F.3d  692 
(6th  Cir.  2007)  (en  banc);  Sw.  Voter  Registration  Educ.  Project  v.  Shelley,  344  F.3d  882  (9th  Cir. 
2003),  rev  'd  (en  banc),  344  F.3d  914  (9th  Cir.  2003).  The  author  was  an  attorney  for  plaintiffs  in 
both  cases. 

17.  Daniel  P.  Tokaji,  Leave  It  to  the  Lower  Courts:  On  Judicial  Intervention  in  Election 
Administration,  68  OHIO  St.  L.J.  1065,  1077-78  (2007)  [hereinafter  Tokaji,  Leave  It  to  the  Lower 
Courts]  (discussing  these  cases);  see  also  Tokaji,  The  Paperless  Chase,  supra  note  1 5,  at  1 800-0 1 , 
1801  n.607. 

18.  Tokaji,  Leave  It  to  the  Lower  Courts,  supra  note  17,  at  1078;  see  also  Tokaji,  The 
Paperless  Chase,  supra  note  15,  at  1774-80,  1791-94  (discussing  security  and  transparency 
concerns  associated  with  electronic  voting  systems  and  potential  solutions). 

19.  See  Daniel  P.  Tokaji,  Voter  Registration  and  Institutional  Reform:  Lessons  from  a 
Historic  Election,  3  HARV.  L.  &  Pol'y  Rev.  ONLINE  1-2  (Jan.  22,  2009)  [hereinafter  Tokaji,  Voter 
Registration  and  Institutional  Reform],  http://www.hlpronline.com/wordpress/wp-concent/ 
uploads/2009/1  l/Tokaji_HLPR_0 12209.pdf. 

20.  These  requirements  are  discussed  infra  Part  III.C. 

21.  See  infra  Part  I.B. 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 1 7 


during  the  legislative  debate  over  HAVA,  the  EAC's  title  was  "not  an 
accident."22  Its  purpose  was  to  provide  assistance  to  the  states,  not  to  "dictate  to 
States  how  to  run  their  elections"  or  otherwise  "impose  its  will  on  the  States."23 
Thus,  election  administration  remains  mostly  a  matter  of  state  law  and  local 
practice,  as  has  been  the  case  throughout  U.S.  history.  Authority  is  largely 
devolved  to  the  fifty  chief  election  officials  in  the  states  and  to  thousands  of  local 
election  officials  at  the  state  and  local  level.24 

Despite  the  hyper-decentralization  of  American  elections,  and  at  least  partly 
because  of  it,  federal  judicial  oversight  of  elections  has  become  a  prominent 
feature  of  the  post-2000  world.  As  Professor  Rick  Hasen  has  documented,  the 
rise  in  election  litigation  during  the  2000s  was  accompanied  by  a  decrease  in  the 
proportion  of  cases  filed  in  state  as  opposed  to  federal  court.25  Over  eighty 
percent  of  election  cases  in  the  early  2000s  were  filed  in  state  court,  compared 
to  only  fifty- four  percent  in  2008. 26  Interestingly,  the  federal  courts  have  opened 
their  doors  to  election  litigation,27  even  though  the  U.S.  Supreme  Court  has 
adopted  a  hands-off  posture  in  the  election  administration  cases  that  have  come 
before  it  since  200028 — and  has  treated  Bush  v.  Gore  as  though  it  does  not  exist.29 

In  the  2004  election  cycle,  the  State  of  Ohio  provided  especially  fertile 
ground  for  federal  litigation.  The  subjects  of  litigation  included  voting 
technology,  provisional  ballots,  voter  registration,  voter  identification,  challenges 
to  voter  eligibility,  and  polling  place  operations.30  The  new  requirements  of 
HAVA,  and  uncertainty  over  the  meaning  of  some  of  them,  were  partly 
responsible  for  this  litigation.  For  example,  voting  rights  activists  in  a  number 
of  states  sued  to  require  that  provisional  ballots  be  counted  even  if  cast  in  the 
wrong  precinct.31  New  requirements  of  HAVA  also  precipitated  litigation  in  the 
2008  election  cycle.  Most  notable  were  disputes  over  HAVA's  requirement  of 
statewide  registration  databases  to  replace  the  local  registration  lists  that 


22.  148  Cong.  Rec.  H7838  (daily  ed.  Oct.  10,  2002)  (statement  of  Rep.  Ney). 

23.  Id. 

24.  See  Daniel  P.  Tokaji,  The  Future  of  Election  Reform:  From  Rules  to  Institutions,  28 
Yale  L.  &  Pol'y  Rev.  125,  130-3 1  (2009)  [hereinafter  Tokaji,  The  Future  of  Election  Reform]. 

25.  Hasen,  supra  note  3,  at  90. 

26.  Mat  91. 

27.  Tokaji,  Leave  It  to  the  Lower  Courts,  supra  note  1 7,  at  1 072. 

28.  See  Crawford  v.  Marion  Cnty.  Election  Bd.,  553  U.S.  181,  204  (2008)  (rejecting 
challenge  to  Indiana  voter  identification  law  without  citing  Bush  v.  Gore);  Purcell  v.  Gonzales,  549 
U.S.  1,  5-6  (2006)  (reversing  injunction  against  Arizona  voter  identification  law,  again  without 
citing  Bush  v.  Gore). 

29.  See  Chad  Flanders,  Please  Don 't  Cite  This  Case!  The  Precedential  Value  of  Bush  v. 
Gore,  1 16  YALE  L.J.  POCKET  PART  141,  143-44  (2006);  Adam  Cohen,  Has  Bush  v.  Gore  Become 
the  Case  That  Must  Not  Be  Named?,  N.Y.  TIMES,  Aug.  15,  2006,  at  A18. 

30.  Daniel  P.  Tokaji,  Early  Returns  on  Election  Reform:  Discretion,  Disenfranchisement, 
and  the  Help  America  Vote  Act,  73  GEO.  WASH.  L.  REV.  1206, 1214-18  (2005)  [hereinafter  Tokaji, 
Early  Returns] . 

31.  See  id.  at  1228-30. 


1 1 8  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


dominated  in  most  states.32  In  Wisconsin  and  Ohio,  conservatives  went  to  court 
seeking  to  require  that  new  voters'  registration  information  be  "matched"  against 
information  in  statewide  registration  databases33 — and,  as  discussed  more  fully 
below,  a  case  brought  by  the  Ohio  Republican  Party  on  this  ground  made  it  up 
to  the  U.S.  Supreme  Court.  For  present  purposes,  the  key  point  is  that  HAVA's 
new  requirements  are  at  least  partly  responsible  for  some  of  the  litigation 
surrounding  election  administration  in  the  post-2000  era. 

It  bears  emphasis  that,  despite  legal  commentators'  preoccupation  with 
constitutional  questions,  some  of  the  most  important  electoral  disputes  in  this 
period  have  involved  questions  of  federal  statutory  law — most  conspicuously,  the 
meaning  of  HAVA.  This  is  partly  attributable  to  the  unavailability  of  any 
administrative  agency  with  the  power  to  clarify  its  meaning.  The  EAC  lacks  the 
power  to  promulgate  binding  regulations,  except  for  in  the  narrow  area  of  mail 
registration.34  And  in  that  narrow  area,  the  EAC 's  bipartisan  structure — with  two 
Republicans,  two  Democrats,  and  a  majority  required  to  take  action — has 
predictably  led  to  stalemate  on  the  most  significant  issue  that  it  has  faced.35 
Absent  any  other  entity  able  to  issue  authoritative  interpretations  of  HAVA,  the 
courts  have  stepped  in  to  fill  the  void,  at  least  in  part.  They  have  issued  decisions 
on  whether  states  must  count  provisional  ballots  cast  out  of  precinct,36  whether 
states  should  issue  provisional  ballots  to  those  who  requested  (but  did  not  cast) 
an  absentee  ballot,37  and,  before  the  Court's  ruling  in  Brunner,  on  the  extent  of 
states'  obligations  to  match  voter  registration  information  against  other 
databases.38  While  HAVA  is  the  most  important  federal  statute  governing  the 
administration  of  elections,  it  is  not  the  only  one  whose  meaning  has  become  the 
subject  of  litigation.  The  past  decade  has  also  seen  litigation  over  the  National 
Voter  Registration  Act  (NVRA),39  a  provision  of  the  Civil  Rights  Act  of  1964 
concerning  voter  registration  (42  U.S.C.  §  1971),  the  Uniformed  and  Overseas 
Citizens  Absentee  Voting  Act  (UOCAVA),  and,  of  course,  the  Voting  Rights  Act 


32.  Daniel  P.  Tokaji,  Voter  Registration  and  Election  Reform,  17  Wm.  &  MARY  BILL  Rts. 
J.  453,  471  (2008)  [hereinafter  Tokaji,  Voter  Registration  and  Election  Reform]. 

33.  Brunner  v.  Ohio  Republican  Party,  129  S.  Ct.  5,  6  (2008);  Order  at  4,  Van  Hollen  v. 
Gov't  Accountability  Bd.,  No.  08-cv-004085  (Wis.  Ct.  App.  Oct.  23,  2008),  available  at 
http://moritzlaw.osu.edu/electionlaw/litigation/vanhollenv.gab.php.  I  have  discussed  the  legal  issue 
in  these  cases  in  some  detail  in  Tokaji,  Voter  Registration  and  Institutional  Reform,  supra  note  19, 
at  8-11. 

34.  42  U.S.C.  §  15329(2006). 

35.  See  Tokaji,  The  Future  of  Election  Reform,  supra  note  24,  at  1 35.  That  issue  concerned 
the  State  of  Arizona's  requirement  of  proof  of  citizenship  for  voter  registration.  Id. 

36.  Sandusky  Cnty.  Democratic  Party  v.  Blackwell,  387  F.3d  565,  578  (6th  Cir.  2004) 
("There  is  no  reason  to  think  that  HAVA  . . .  should  be  interpreted  as  imposing  upon  the  states  a 
federal  requirement  that  out-of-precinct  ballots  be  counted.  .  .  ."). 

37.  White  v.  Blackwell,  418  F.  Supp.  2d  988,  991  (N.D.  Ohio  2006). 

38.  Ohio  Republican  Party  v.  Brunner,  544  F.3d  7 1 1  (6th  Cir.)  (en  banc),  vacated,  129  S.  Ct. 
5  (2008). 

39.  42  U.S.C.  §§  1973gg-1973gg-10  (2006). 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 1 9 


(VRA). 

The  active  role  of  federal  courts  in  overseeing  election  administration  is 
understandable  and,  I  contend,  desirable.40  With  no  administrative  agency  able 
to  issue  authoritative  guidance  on  the  meaning  of  federal  law,  courts  are  the  only 
option.  Otherwise,  the  interpretation  of  HAVA's  requirements  would  be  left  to 
chief  election  officials  in  the  states  and  to  local  election  officials.  This  is 
problematic  not  only  because  it  compromises  the  uniform  implementation  of 
federal  law  across  the  country,  but  also  because  of  the  partisanship  that  pervades 
state  and  local  election  administration.  Election  officials  are  typically  elected  or 
selected  as  representatives  of  their  party,  raising  troubling  questions  about  their 
impartiality.  The  majority  of  state  chief  election  officials,  usually  the  secretary 
of  state,  are  elected  as  candidates  of  their  party.41  Even  where  state  chief  election 
officials  are  appointed  rather  than  elected,  the  appointing  authority  is  typically 
a  partisan  elected  official.  This  arrangement  is  also  problematic,  raising  doubts 
about  whether  the  political  appointee  can  be  trusted  to  implement  the  law 
evenhandedly.  A  similar  problem  exists  in  many,  though  not  all,  localities.  Most 
jurisdictions  still  elect  their  local  election  officials,  and  party-affiliated  officials 
run  elections  in  almost  half  of  U.S.  jurisdictions.42 

Thus,  despite  the  significant  changes  that  have  occurred  in  U.S.  elections 
since  2000,  the  allocation  of  institutional  authority  remains  largely  unchanged. 
While  HAVA  was  the  federal  government's  most  significant  intervention  in 
election  administration  in  U.  S .  history,  most  day-to-day  responsibility  for  running 
elections  still  lies  at  the  state  and  local  levels.  American  election  administration 
thus  remains  very  decentralized.  Nor  has  there  been  much  change  in  the 
partisanship  of  U.S.  election  administration.  For  all  the  criticism  leveled  at 
Florida's  Secretary  of  State  Katherine  Harris  in  2000  and  Ohio's  Secretary  of 
State  Ken  Blackwell  in  2004,  party-affiliated  state  chief  election  officials  are  still 
the  norm.  This  does  not  necessarily  mean  that  election  officials  will  discharge 
their  duties  in  a  biased  manner;  nor  is  it  easy  to  discern  when  they  are  doing  so. 
It  does,  however,  create  an  inherent  conflict  of  interest  between  election 
officials'  duty  to  implement  election  laws  impartially  and  the  temptation  to  serve 
the  political  interests  of  their  parties  or  themselves.  The  major  institutional 
change  that  has  occurred  is  the  increased  engagement  of  the  federal  judiciary, 
which  serves  as  a  vital  check  upon  the  otherwise  decentralized  and  partisan 
administration  of  U.S.  elections.43 


40.  Tokaji,  The  Future  of  Election  Reform,  supra  note  24,  at  149-53. 

41.  Richard  L.  Hasen,  Beyond  the  Margin  of  Litigation:  Reforming  U.S.  Election 
Administration  to  Avoid  Electoral  Meltdown,  62  WASH.  &  LEE  L.  REV.  937,  974  (2005). 

42.  David  C.  Kimball  et  al.,  Helping  America  Vote?  Election  Administration,  Partisanship, 
and  Provisional  Voting  in  the  2004  Election,  5  ELECTION  L.J.  447,  453  (2006);  see  also  David  C. 
Kimball  &  Martha  Kropf,  The  Street-Level  Bureaucrats  of  Elections:  Selection  Methods  for  Local 
Election  Officials,  23  Rev.  Pol'y  Res.  1257,  1261-62  (2006)  (showing  methods  of  selection  in 
4566  local  electoral  jurisdictions). 

43 .  I  elaborate  on  this  argument  elsewhere.  See  Tokaj  i,  The  Future  of  Election  Reform,  supra 
note  24,  at  149-53;  Tokaji,  Lowenstein  Contra  Lowenstein,  supra  note  11. 


1 20  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


B.  A  Comparative  Perspective 

In  both  its  decentralization  and  its  partisanship,  American  democracy  is 
distinctive.44  These  peculiar  characteristics  of  our  election  systems  make  the 
federal  courts  important  institutional  players  when  it  comes  to  the  administration 
of  elections.45  To  see  why,  it  is  helpful  to  compare  U.S.  electoral  institutions  to 
those  in  other  countries,  as  well  as  international  norms  of  election  management. 
Two  countries — India  and  France — provide  particularly  helpful  points  of 
comparison  in  understanding  the  vital  role  of  the  federal  judiciary  in  overseeing 
U.S.  elections. 

The  spread  of  democracy  around  the  world  is  perhaps  the  most  important 
global  trend  of  recent  decades.  With  this  spread  has  come  increasing  attention 
to  the  characteristics  that  are  necessary  for  a  trustworthy  and  stable  democratic 
system.  Independence  from  partisan  politics  is  increasingly  viewed  as  a 
necessary  component  of  such  a  system.  As  the  influential  European  Commission 
for  Democracy  Through  Law  (also  known  as  the  "Venice  Commission")  has  put 
it:  "Only  transparency,  impartiality  and  independence  from  politically  motivated 
manipulation  will  ensure  proper  administration  of  the  election  process,  from  the 
pre-election  period  to  the  end  of  the  processing  of  results."46 

Democratic  countries  vary  dramatically  in  the  degree  to  which  they  satisfy 
this  ideal.  Globally,  election  management  bodies  can  be  divided  into  three  broad 
categories.47  The  first  and  most  common  is  an  independent  electoral  commission, 
the  structure  that  is  now  employed  in  most  democratic  countries.48  The 
advantage  of  this  model  is  that  it  tends  to  promote  impartiality  by  insulating  those 
running  the  election  from  political  pressures.  This  is  consistent  with  a  growing 


44.  Richard  H.  Pildes,  The  Supreme  Court,  2003  Term — Foreword:  The 
Constitutionalization  of  Democratic  Politics,  118  Harv.  L.  Rev.  29,  82  (2004);  Daniel  P.  Tokaji, 
The  Birth  and Rebirth  of Election  Administration,  6ELECTI0NLJ.  118, 121  (2007)  (reviewing  ROY 
G.  Saltman,  The  History  and  Politics  of  Voting  Technology:  In  Quest  of  Integrity  and 
Public  Confidence  (2006)). 

45 .  See  Pildes,  supra  note  44,  at  83  ("Courts ...  are  the  primary  American  institution  capable 
under  current  circumstances  of  addressing  the  central  structural  problem  of  self-entrenchment."). 

46.  European  Commission  for  Democracy  Through  Law  ["Venice  Commission"],  Code  of 
Good  Practice  in  Electoral  Matters,  at  26,  CDL-AD  (2002)  23  (Oct.  30,  2002)  (emphasis  added), 
<3va/7a/?/e<3?http://www.venice.coe.int/docs/2002/CDL-AD(2002)023-e.pdf. 

47.  I  discuss  these  in  somewhat  greater  detail  in  Tokaji,  The  Future  of  Election  Reform,  supra 
note  24,  at  137-41. 

48.  Rafael  Lopez-Pintor,  UN  Dev.  Programme,  Electoral  Management  Bodies  as 
Institutions  of  Governance  120  (2000),  available  at  http://www.undp.org/governance/docs/ 
Elections-Pub-EMBbook.pdf;  see  also  Louis  Massicotteetal.,  Est ablishing  the  Rules  of  the 
Game:  Election  Laws  in  Democracies  83-96  (2004);  Oliver  Ihl,  Electoral  Administration,  in 
Encyclopedia  of  European  Elections  87,  87-89  (Yves  Deloye  &  Michael  Bruter  eds.,  2007). 
All  three  of  these  sources  describe  the  institutions  that  are  responsible  for  managing  elections  in 
democratic  countries.  The  discussion  in  the  text  mostly  follows  Lopez-Pintor' s  taxonomy. 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 2 1 


recognition  that  such  impartiality  is  essential  to  a  fair  democratic  process.49 
Among  the  countries  employing  this  model  are  Australia,50  Canada,5 '  and  India.52 
The  second  category  of  election  management  is  to  entrust  a  government  ministry 
with  authority  to  oversee  elections.53  From  the  standpoint  of  ensuring 
independence  from  partisan  politics,  this  structure  might  seem  problematic,  but 
it  is  the  norm  in  many  western  European  countries  with  a  strong  democratic 
tradition,  including  Belgium,  Denmark,  and  Sweden.54  The  success  of  this  model 
is  probably  attributable  to  the  existence  of  a  core  of  professional  civil  servants 
who  are  sufficiently  insulated  from  political  pressures.55  The  third  model  is  for 
authority  to  be  divided  among  different  entities.  Authority  may  be  divided 
vertically,  as  in  the  U.S.  system  in  which  federal,  state,  and  local  actors  have 
authority  over  elections.  This  dispersal  of  authority  makes  it  difficult  for  any  one 
group  to  "steal"  an  election,  but,  as  I  have  already  suggested,  it  also  makes  it 
difficult  to  ensure  equal  treatment  across  jurisdictions.  Another  way  of  dividing 
power  is  to  do  so  horizontally,  among  different  components  of  the  national 
government.  The  leading  example  is  the  French  system,  in  which  a  ministry  runs 
presidential  elections  under  the  supervision  of  judicial  actors.56  Dividing 
authority  in  this  way  may  also  provide  some  assurance  of  impartiality,  insofar  as 
a  relatively  independent  entity  is  looking  over  the  shoulder  of  the  government 
officials  who  are  actually  running  the  election. 

The  first  model,  an  independent  electoral  commission,  is  properly  viewed  as 
the  gold  standard  when  it  comes  to  election  management.57  Yet  the  United  States 
and  virtually  all  the  individual  states  lack  politically  insulated  bodies  of  this 
nature  to  run  their  elections.58  The  United  States  also  lacks  a  core  of  professional 


49.  Int'l  Inst,  for  Democracy  and  Electoral  Assistance,  International  Elections 
Standards:  Guidelines  for  Reviewing  the  Legal  Framework  of  Elections  37  (2002), 
available  at  http://www.idea.int/publications/ies/index.cfm  (recognizing  an  "autonomous  and 
impartial"  electoral  management  body  as  an  international  election  standard). 

50.  M ASSICOTTE  ET  AL.,  supra  note  48,  at  90-9 1 ;  Lopez-Pintor,  supra  note  48,  at  27-28, 3 1 . 

51.  Frank  Emmert  et  al.,  Trouble  Counting  Votes?  Comparing  Voting  Mechanisms  in  the 
United  States  and  Selected  Other  Countries,  41  CREIGHTON  L.  Rev.  3,  25  (2008). 

52.  David  Gilmartin,  One  Day's  Sultan:  T.N.  Seshan  and  Indian  Democracy,  2 
Contributions  to  Indian  Sociology  247  (2009)  (describing  how  India's  electoral  commission 
functions);  Lopez-Pintor,  supra  note  48,  at  27-28. 

53.  Lopez-Pintor,  supra  note  48,  at  24. 

54.  Id.  at  27,  59. 

55.  See  Tokaji,  The  Future  of  Election  Reform,  supra  note  24,  at  140;  see  also  Venice 
Commission,  supra  note  46,  at  26  ("In  states  where  the  administrative  authorities  have  a  long- 
standing tradition  of  independence  from  the  political  authorities,  the  civil  service  applies  electoral 
law  without  being  subjected  to  political  pressures.  It  is  therefore  both  normal  and  acceptable  for 
elections  to  be  organised  by  administrative  authorities,  and  supervised  by  the  Ministry  of  the 
Interior."). 

56.  Lopez-Pintor,  supra  note  48,  at  22,  60-61 .  This  model  is  discussed  further  below. 

57.  See  Venice  Commission,  supra  note  46,  at  26. 

58.  The  only  real  exception  is  the   State  of  Wisconsin,  which  has  a  Government 


1 22  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


and  politically  independent  civil  servants  that  is  needed  in  order  to  entrust 
election  administration  to  a  government  ministry.  This  type  of  system  is  the 
norm,  however,  in  most  U.S.  states. 

To  understand  both  of  these  shortcomings  of  election  administration  in  the 
United  States,  it  is  helpful  to  contrast  our  system  with  that  of  the  world's  largest 
democracy:  India.  With  an  election  administration  apparatus  that  is  both 
centralized  and  insulated  from  partisan  politics,  India  is  the  polar  opposite  of  the 
United  States.  To  American  observers,  the  degree  of  independence  that  India's 
Election  Commission  ("the  Commission")  enjoys — as  well  as  the  scope  of 
authority  it  enjoys  in  executing  its  responsibilities — is  almost  unimaginable.59 
The  Commission  was  established  by  India's  1950  Constitution,  which  gave  it 
authority  over  the  management  of  parliamentary  and  state  legislative  elections.60 
Over  the  ensuing  six  decades,  the  Commission  has  established  broad  control  over 
the  management  of  elections,  with  the  assistance  of  India's  Supreme  Court, 
which  has  held  that  the  Commission  enjoys  a  broad  "power  to  make  all  necessary 
provisions  for  conducting  free  and  fair  elections."61  During  the  1990s,  under  the 
leadership  of  Chief  Election  Commissioner  T.N.  Seshan,  the  Commission 
successfully  increased  its  authority  during  "electoral  time,"  while  successfully 
fending  off  attempts  to  compromise  its  independence.62 

The  degree  of  control  that  the  Commission  enjoys  during  electoral  time  is 
enormous.  During  the  period  before  and  during  an  election,  the  Commission  has 
almost  plenary  authority  to  commandeer  government  workers  from  other 
government  agencies,  to  put  them  in  service  of  running  elections.63  The 
Commission's  ability  to  draw  on  a  professional  cadre  of  civil  servants — in 
contrast  to  the  largely  volunteer  force  that  U.S.  jurisdictions  must  mobilize  on  its 
election  days — provides  it  with  a  noteworthy  advantage.  The  Commission  has 


Accountability  Board  that  is  responsible  for  overseeing  elections.  See  Steven  F.  Huefner,  Daniel 
P.  Tokaji  &  Edward  B.  Foley,  From  Registration  to  Recounts:  The  Election  Ecosystems 
of  Five  Midwestern  States  115-17  (2007);  http://moritzlaw.osu.edu/electionlaw/projects/ 
registration-to-recounts/index.php. 

59.  See  Christopher  S.  Elmendorf,  Election  Commissions  and  Electoral  Reform:  An 
Overview,  5  Election  L.J.  425,  429  (2006)  (identifying  India's  Election  Commission  as  leading 
example  of  an  entity  empowered  to  make  and  enforce  election  rules). 

60.  Under  the  Constitution  of  India,  the  Commission  is  responsible  for  the  "superintendence, 
direction  and  control  of  the  preparation  of  the  electoral  rolls  for,  and  the  conduct  of,  all  elections 
to  Parliament  and  to  the  Legislature  of  every  States  and  of  elections  to  the  offices  of  President  and 
Vice-President."  India  Const.  Dec.  1,2007,  art.  324,  §  1 ;  see  also  Vassia  Gueorguieva  &  Rita 
S.  Simon,  Voting  and  Elections  the  World  Over  143-48  (2009)  (describing  structure  and 
functions  of  India's  Election  Commission). 

61.  Elmendorf,  supra  note  59,  at  429  (quoting  Union  of  India  v.  Ass'n  for  Democratic 
Reforms,  2  L.R.I.  305  (2002)). 

62.  Gilmartin,  supra  note  52,  at  253.  For  an  illuminating  discussion  of  restrictions  on 
political  expression  during  electoral  time,  see  Samuel  Issacharoff,  Fragile  Democracies,  1 20  Harv. 
L.  REV.  1405,  1423-29  (2007). 

63.  Gilmartin,  supra  note  52,  at  254-55. 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 23 


also  promulgated  a  Model  Code  of  Conduct  that  is  in  force  during  electoral 
time.64  Accordingly,  it  enjoys  the  authority  to  punish  violations  through  the 
threat  of  cancelling  or  nullifying  elections.65  As  a  practical  matter,  then,  the 
Commission  enjoys  extremely  broad  authority  during  electoral  time,  and  it  has 
often  made  and  implemented  rulings  that  are  unpopular  with  the  ruling  party.66 
It  also  enjoys  a  high  degree  of  credibility  with  the  public  compared  to  other 
institutions,  even  including  India's  judiciary.67  The  independence  and  status  of 
the  Commission  has  allowed  India's  judiciary,  including  its  Supreme  Court,  to 
play  a  back-seat  role  in  overseeing  elections.  Indian  courts  have  adopted  a  highly 
deferential  posture  toward  rulings  of  the  Commission  made  during  electoral 
time.68 

The  Indian  Election  Commission's  broad  powers  during  electoral  time,  along 
with  the  widespread  perception  that  it  stands  "above  politics,"69  gives  it  a  status 
that  election  management  bodies  in  the  United  States  simply  do  not  enjoy.  It  may 
eventually  be  possible  to  develop  comparably  independent  electoral  institutions 
in  the  United  States.  Indeed,  the  State  of  Wisconsin  has  recently  attempted  to  do 
so,  through  the  creation  of  a  Government  Accountability  Board  staffed  with 
former  judges,  who  must  be  confirmed  by  a  supermajority  of  the  state 
legislature — a  structure  that  is  designed  to  ensure  impartiality  in  the  Board's 
operations.70  For  the  time  being,  however,  election  administration  is  likely  to 
remain  in  the  hands  of  party-affiliated  actors  in  most  U.S.  states  and  many 
localities.  Therefore,  in  the  here  and  now,  there  must  be  some  means  by  which 
to  induce  those  officials  to  act  impartially.  As  the  U.S.  institution  that  is  most 
insulated  from  partisan  politics,  the  federal  judiciary  is  best  suited  to  perform  this 
function.71 

To  understand  the  functional  role  that  federal  courts  can  and  should  play  in 
the  United  States,  it  is  helpful  to  compare  the  French  electoral  system.  France 
has  a  more  centralized  system  than  the  United  States.72  The  Ministry  of  Internal 


64.  Id. 

65.  Id.  at  256. 

66.  Id.  at  257. 

67.  Peter  Ronald  deSouza,  The  Election  Commission  and  Electoral  Reforms  in  India,  in 
Democracy,  Diversity,  Stability:  50  Years  of  Indian  Independence  51,  52-53  (1998). 

68.  Anurag  Tripathi,  Election  Commission  of  India:  A  Study  1 9  (manuscript  Mar.  1 9, 20 1 0), 
available  at  http://papers.ssrn.com/sol3/papers.  cfm?abstract_id=l  575309  ( "The  Supreme  Court 
of  India  has  held  that  where  the  enacted  laws  are  silent  or  make  insufficient  provision  to  deal  with 
a  given  situation  in  the  conduct  of  elections,  the  Election  Commission  has  the  residuary  powers 
under  the  Constitution  to  act  in  an  appropriate  manner."). 

69.  Gilmartin,  supra  note  52,  at  28 1 . 

70.  HUEFNER,TOKAJl&FOLEY,5wpranote58,  at  115;  Tokaji,  The  Future  of  Election  Reform, 
supra  note  24,  at  144. 

7 1 .  See  Pildes,  supra  note  44,  at  83. 

72.  Noelle  Lenoir,  Constitutional  Council  Review  of  Presidential  Elections  in  France  and 
a  French  Judicial  Perspective  on  Bush  v.  Gore,  in  THE  LONGEST  NIGHT:  POLEMICS  AND 
Perspectives  on  Election  2000,  at  295,  305-06  (Arthur  J.  Jacobsen  &  Michael  Rosenfeld  eds., 


1 24  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


Affairs  oversees  elections  throughout  the  country,  but  (as  in  the  United  States) 
authority  is  dispersed  among  local  entities.73  The  most  significant  feature  of 
France's  election  system — one  that  is  both  similar  to  and  different  from  the 
United  States — is  the  role  that  courts  play  in  overseeing  elections.74  The  1958 
Constitution  created  the  French  Constitutional  Council  and  entrusted  it  with 
responsibility  for  resolving  disputes  in  presidential  and  parliamentary  elections,75 
while  administrative  courts  (with  the  Conseil  d'Etat  at  the  top  of  the  ladder)  have 
responsibility  for  regional  and  local  elections.76  These  bodies,  while  usually 
characterized  as  courts,  serve  both  a  judicial  and  an  administrative  function  when 
it  comes  to  elections,  including  responsibility  for  the  counting  of  votes  and 
announcement  of  results.77  For  presidential  elections,  the  Constitutional  Council 
"monitors  the  whole  chain  of  electoral  operations  from  the  beginning  of  the 
preparation  of  the  instruments  organizing  the  election  to  the  declaration  of  the 
final  results  and  the  name  of  the  elected  president."78  In  terms  of  the  number  of 
decisions  it  issues,  the  Constitutional  Council  is  predominantly  an  electoral  court, 
with  three-quarters  of  its  decisions  involving  elections,  with  the  number  of 
decisions  increasing  sharply  in  the  1990s.79  It  has  been  described  as  an  "engine 
by  which  the  'judicialization  of  polities'  has  grown  in  France."80  Its  functions 
include  advising  the  government  on  actions  concerning  elections,  considering  the 
legality  of  administrative  actions,  providing  information  for  voters,  supervising 
the  conduct  of  elections  and  reporting  incidents,  and  announcing  the  results.81 
The  Constitutional  Council  thus  plays  an  active  role  before,  during,  and  after 
elections,  functioning  as  a  sort  of  "election  monitor."82 

The  jurisdiction  of  the  French  Constitutional  Council  extends  well  beyond 


2002). 

73.  GUEORGUIEVA  &  SlMON,  supra  note  60,  at  45. 

74.  Lopez-Pintor,  supra  note  48,  at  60-6 1 . 

75.  1958  Const,  art.  58  (Fr.)  ("(1)  The  Constitutional  Council  shall  ensure  the  regularity  of 
the  election  of  the  President  of  the  Republic.  (2)  It  shall  examine  complaints  and  shall  proclaim 
the  results  of  the  vote.");  see  also  Lenoir,  supra  note  72,  at  297;  Lopez-Pintor,  supra  note  48,  at 
61. 

76.  LOPEZ-PINTOR,  supra  note  48,  at  60-6 1 ;  Kieran  Williams,  Judging  Disputed  Elections 
in  Europe,  8  ELECTION  L.J.  277,  278  (2009). 

77.  LOPEZ-PINTOR,  supra  note  48,  at  61 ;  Lenoir,  supra  note  72,  at  299.  But  see  Williams, 
supra  note  76,  at  278  (noting  that  the  Constitutional  Council  "sits  outside  the  judiciary  and  is 
composed  as  much  of  onetime  politicians  .  . .  and  civil  servants  as  of  career  judges"). 

78.  Lenoir,  supra  note  72,  at  299. 

79.  Sylvain  Brouard,  The  Constitutional  Council:  The  Rising  Regulator  of  French  Politics, 
in  The  French  Fifth  Republic  at  Fifty:  Beyond  Stereotypes  99, 106-07  (Sylvain  Brouard  et 
al.  eds.,  2009). 

80.  Id.  at  1 16  (citation  omitted). 

8 1 .  Jean-Louis  Debre,  President,  Constitutional  Council,  Statement  on  the  Role  of  the  French 
Constitution  Council  in  National  Polls  (July  16,  2007),  available  at  http://www.conseil- 
constitutionnel/root/bankmm/pdf/Conseil/200707 1 6Debre.pdf. 

82.  Lenoir,  supra  note  72,  at  304. 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 25 


that  of  federal  courts  in  the  United  States.  The  Council  considers  matters  that 
would  be  deemed  nonjusticiable  political  questions  in  the  U.S.  federal  courts. 
At  the  same  time,  a  fruitful  comparison  can  be  made  in  the  broad  range  of  topics 
the  Constitutional  Council  addresses.  It  considers  questions  that  arise  before, 
during,  and  after  elections,  providing  a  check  on  the  ministry  that  runs  the 
election.  In  effect,  this  allows  the  Constitutional  Council  to  look  over  the 
shoulder  of  the  government  officials  running  elections. 

Comparison  of  the  U.S.  system  with  that  of  India  and  France  thus  helps 
illuminate  the  role  that  the  judiciary — and  specifically  the  federal  courts — plays 
in  the  administration  of  elections.  The  increased  role  of  courts,  especially  the 
federal  courts,  in  overseeing  the  conduct  of  elections  can  be  seen  as  a  response 
to  the  decentralization  and  partisanship  of  U.S.  elections.  For  the  most  part, 
election  administration  in  the  United  States  remains  a  matter  of  state  law  and 
local  practice.  The  United  States  lacks  an  independent  electoral  commission  like 
India's  and  does  not  have  courts  that  are  specifically  entrusted  with  a  broad- 
ranging  review  of  the  conduct  of  elections,  as  in  France.  With  the  enactment  of 
HAVA's  new  nationwide  requirements  in  2002,  and  without  a  federal  agency 
capable  of  promoting  consistency  in  the  interpretation  of  the  law,  federal  courts 
were  left  to  fill  this  void.83  Given  the  absence  of  other  U.S.  institutions  that  are 
sufficiently  insulated  from  partisan  politics,  the  federal  courts  are  best  suited  to 
perform  this  role.  Unfortunately,  as  I  shall  explain  in  Parts  II  and  III,  federal 
courts  are  hampered  by  the  restrictive  legal  doctrine  on  when  private  litigants  can 
bring  suit  to  enforce  federal  statutory  law. 

II.  Private  Rights  of  Action 

As  explained  in  Part  I,  federal  courts  play  an  important  role  with  respect  to 
the  conduct  of  U.S.  elections.  For  the  most  part,  the  United  States  lacks  election 
management  bodies  that  are  independent  of  partisan  politics  as  in  India,  or  a 
formal  system  of  dividing  electoral  authority  as  in  France.  While  it  would  be 
naive  to  believe  that  judges  are  apolitical,  federal  courts  enjoy  greater  insulation 
from  politics  than  the  other  players  in  our  election  system.  Accordingly,  it  is 
valuable  for  those  courts  to  look  over  the  shoulder  of  party-affiliated  election 
officials.  One  way  of  doing  so  is  through  constitutional  adjudication,  though  this 
is  an  awkward  tool  at  best.  Constitutionalizing  election  rules  may  strain  judicial 
competence.  It  may  also  induce  even  greater  resentment  by  the  losing  side,  given 
the  practical  impossibility  of  overruling  a  constitutional  ruling  as  opposed  to  a 
statutory  one.  Greater  constitutionalization  of  election  administration  is  also  an 
enterprise  that  the  U.S.  Supreme  Court  has  been  reluctant  to  engage  in — as 
suggested  by  its  reluctance  even  to  cite  Bush  v.  Gore*4  in  the  decade  after  which 
that  momentous  case  was  decided.85 

An  alternative  means  for  federal  courts  to  oversee  the  administration  of 


83.  42  U.S.C.  §§  15301-15545  (2006  &  Supp.  2008). 

84.  531  U.S.  98(2000). 

85.  Flanders,  supra  note  29,  at  144;  Cohen,  supra  note  29. 


126  INDIANA  LAW  REVIEW  [Vol.  44: 1 13 


elections  is  through  their  interpretation  of  the  federal  statutes  governing  this  area, 
most  notably  HAVA.  The  federal  courts  have  decided  some  important  cases 
under  federal  election  administration  statutes  in  recent  years.86  Yet  their  ability 
to  act  in  this  area  is  impeded  by  two  obstacles.  One  is  the  absence  of  an  express 
private  right  of  action  under  HAVA  and  some  other  election  statutes.  The  other 
is  the  restrictive  doctrine  that  the  Supreme  Court  has  crafted  over  the  past  four 
decades,  on  when  a  private  right  of  action  may  be  implied — either  directly  or 
under  §1983. 

A.  Implied  Rights  of  Action 

Common  law  courts  generally  permitted  private  persons  claiming  a  violation 
of  state  statutes  to  seek  redress,  so  long  as  they  were  among  the  class  the  statute 
purported  to  protect.87  The  implication  of  a  right  of  action  is  rooted  in  the 
Blackstonian  principle,  famously  asserted  in  Marbury  v.  Madison?*  that  "where 
there  is  a  legal  right,  there  is  also  a  legal  remedy."89  In  Texas  &  Pacific  Railway 
Co.  v.  Rigsby,  decided  in  1916,  the  Supreme  Court  explicitly  recognized  that  a 
plaintiff  could  bring  suit  under  a  federal  statute  that  did  not  expressly  create  a 
private  right  of  action.90  According  to  Rigsby,  "disregard  of  the  command  of  the 
statute  is  a  wrongful  act,  and  where  it  results  in  damage  to  one  of  the  class  for 
whose  especial  benefit  the  statute  was  enacted,  the  right  to  recover  damages  from 
the  party  in  default  is  implied."91  Despite  this  pronouncement,  it  was  not  very 
common  for  the  Supreme  Court  to  imply  private  rights  of  action  for  the  next  half 
century  or  so.92 


86.  See  generally  Tokaji,  Early  Returns,  supra  note  30;  Tokaji,  Voter  Registration  and 
Election  Reform,  supra  note  33;  Tokaji,  Voter  Registration  and  Institutional  Reform,  supra  note 
19. 

87.  Cass  R.  Sunstein,  Section  1 983  and  the  Private  Enforcement  of  Federal  Law,  49  U.  Chi. 
L.  Rev.  394,411-12(1982). 

88.  5  U.S.  (1  Cranch)  137  (1803). 

89.  Id.  at  163  (quoting  3  William  Blackstone,  Commentaries  23);  see  also  Marsha  S. 
Berzon,  Securing  Fragile  Foundations:  Affirmative  Constitutional  Adjudication  in  Federal  Courts, 
84  N.Y.U.  L.  Rev.  68 1 ,  696  (2009)  (describing  roots  of  implied  right  of  action  doctrine  in  Marbury 
and  Blackstone). 

90.  Tex.  &  Pac.  Ry.  Co.  v.  Rigsby,  241  U.S.  33,  41  (1916). 

91.  Mat  39. 

92.  Lisa  E.  Key,  Private  Enforcement  of  Federal  Funding  Conditions  Under  §  1983:  The 
Supreme  Court's  Failure  to  Adhere  to  the  Doctrine  of  Separation  of  Powers,  29  U.C.  DAVIS  L. 
REV.  283,  294  (1996);  see  also  Cannon  v.  Univ.  of  Chi.,  441  U.S.  677,  733  (1979)  (Powell,  J., 
dissenting  )  (asserting  that,  for  almost  fifty  years  after  Rigsby,  the  only  other  statute  under  which 
the  Court  had  recognized  an  implied  right  of  action  was  the  Railway  Labor  Act  of  1926).  This 
appears  to  be  a  disputed  point.  Professor  Sunstein  asserts  that  federal  courts  used  their  common 
law  powers  recognized  in  Swift  v.  Tyson  to  permit  rights  of  action  for  violations  of  federal  law,  even 
after  Erie  Railroad  v.  Tompkins.  Sunstein,  supra  note  87,  at  4 1 1  - 1 2.  But  Professor  Sunstein  does 
not  cite  any  Supreme  Court  decisions  actually  doing  so  between  Rigsby  and  Borah.  See  Richard 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 27 


Implying  a  right  of  action  for  violations  of  federal  laws  allowed  non- 
governmental entities  to  serve  as  private  attorneys  general,  a  "progressive"  legal 
reform  supported  by  liberals  and  conservatives  alike.93  The  case  that  did  most 
to  encourage  the  implication  of  private  rights  of  action  was  the  Supreme  Court's 
1964  decision  in  J.I.  Case  Co.  v.  Borak.94  Plaintiff  Borak  was  a  shareholder  of 
defendant  corporation  alleged  to  have  made  a  deceptive  proxy  solicitation  in 
violation  of  §  14(a)  of  the  Security  and  Exchange  Act  of  1934.95  The  Court 
acknowledged  that  the  language  of  the  statute  "makes  no  specific  reference  to  a 
private  right  action,"  but  adverted  to  the  underlying  purposes  of  the  statutes,  most 
notably  "'the  protection  of  investors,'  which  certainly  implies  the  availability  of 
judicial  relief  where  necessary  to  achieve  that  result."96  The  Court  also  took 
notice  of  the  fact  that  the  harm  asserted  "results  not  from  the  deceit  practiced  on 
him  alone  but  rather  from  the  deceit  practiced  on  the  stockholders  as  a  group."91 
The  collective  nature  of  the  harm  made  a  private  right  of  action  especially  vital 
in  the  Court's  view.98  As  Richard  Stewart  and  Cass  Sunstein  have  explained,  the 
reason  for  creating  a  right  of  action  was  to  protect  "a  diffuse  collective  good," 
rather  than  simply  to  provide  redress  to  individual  victims.99  Even  though  the 
Securities  and  Exchange  Commission  had  the  concurrent  power  to  enforce  § 
14(a),  leaving  enforcement  to  this  agency  alone  was  inadequate  given  its  limited 
ability  to  thoroughly  examine  all  the  proxy  statements  it  received  and  assess  the 
harms  that  might  be  done  by  misrepresentations.  The  federal  courts,  therefore, 
had  not  just  the  power  but  the  duty  to  provide  remedies  necessary  to  effectuate 
Congress '  s  purpose — including  both  prospective  relief  and  damages — despite  the 
fact  that  the  statute  did  not  explicitly  authorize  shareholders  like  Borak  to  sue.100 
Put  simply,  the  Court  believed  a  private  right  of  action  was  necessary  to  make  the 
statute  work.101 

Borak  triggered  a  wave  of  decisions  in  the  next  decade  implying  private 
rights  of  action  under  various  federal  statutes.102   During  this  golden  era  for 


B.  Stewart  &  Cass  R.  Sunstein,  Public  Programs  and  Private  Rights,  95  Harv.  L.  Rev.  1 193, 
1300-06  (1982)  (reviewing  history  of  private  rights  of  action  in  various  contexts). 

93.  Michael  Waterstone,  A  New  Vision  of  Public  Enforcement,  92  Minn.  L.  Rev.  434,  442 
(2007). 

94.  377  U.S.  426(1964). 

95.  Mat 427. 

96.  Id.   at  432   (quoting  Security  and  Exchange  Act  of  1934,   15  U.S.C.   §   78n(a) 
(2006)). 

97.  Id.  (emphasis  added). 

98.  Mat 432-33. 

99.  Stewart  &  Sunstein,  supra  note  92,  at  1303. 

100.  Borak,  377  U.S.  at  433. 

101.  Berzon,  supra  note  89,  at  697. 

1 02.  Key,  supra  note  92,  at  294-95;  see  also  Peter  W.  Low  &  John  C.  Jeffries,  Jr.,  Federal 
Courts  and  the  Law  of  Federal-State  Relations  164  (6th  ed.  2008)  ("In  the  decade  following 
[Borak],  the  lower  courts  routinely  recognized  private  rights  of  action  to  enforce  federal  regulatory 
provisions.");  Bradford  C.  Mank,  Suing  Under  §  1983:  The  Future  After  Gonzaga  University  v. 


128  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


implied  rights  of  action,  the  principal  focus  was  on  whether  the  statute  protected 
a  special  class  of  people  that  included  the  plaintiff.103  If  they  were,  then  a  private 
right  of  action  was  generally  implied.  Among  the  laws  under  which  the  Supreme 
Court  recognized  private  rights  of  action  were  statutes  regulating  the  financial 
sector104  and  protecting  civil  and  political  rights.105 

An  example  is  Allen  v.  State  Board  of  Elections™6  in  which  the  Court 
implied  a  right  of  action  for  voters  claiming  that  their  states  had  implemented 
new  electoral  rules  without  complying  with  §  5  of  the  then-new  Voting  Rights 
Act  of  1965. 107  Under  §  5,  covered  jurisdictions — at  the  time,  states  and  political 
subdivisions  in  the  South — are  required  to  obtain  preclearance  of  electoral 
changes  before  those  changes  may  go  into  effect.  At  issue  in  Allen  was  whether 
the  states'  electoral  changes  counted  as  "qualification  or  prerequisite  to  voting, 
or  standard,  practice,  or  procedure  with  respect  to  voting"  which  had  to  be 
precleared.108  Allen  is  mostly  known  for  its  capacious  interpretation  of  §  5, 
holding  that  it  is  not  limited  to  practices  limiting  who  may  vote  but  also  includes 
at-large  election  schemes  and  other  rules  that  might  limit  the  effectiveness  of 
minority  votes109 — in  other  words,  that  §  5  applies  to  vote  dilution  as  well  as  vote 
denial.110  But  Allen  is  also  important  for  its  holding  that  private  citizens  had  a 
right  to  sue  states  that  had  failed  to  obtain  §  5  preclearance.  The  VRA  did  not 
explicitly  grant  minority  voters  the  right  to  sue  in  these  circumstances,  and  the 
Court  might  have  held  that  only  the  U.S.  Department  of  Justice  could  sue  to  stop 
a  state  from  implementing  an  un-precleared  electoral  change. l ' '  The  Allen  Court, 


Doe,  39  Hous.  L.  Rev.  1417,  1423  n.31  (2003)  (noting  that  the  Supreme  Court  and  lower  courts 
found  implied  rights  of  action  under  several  statutes  between  1964  and  1975). 

103.  Key,  supra  note  92,  at  295  (citing  Stephen  E.  Ronfeldt,  Implying  Rights  of  Action  for 
Minorities  and  the  Poor  Through  Presumptions  of  Legislative  Intent,  34  HASTINGS  L.J.  969,  977 
(1983)). 

104.  See  Affiliated  Ute  Citizens  of  Utah  v.  United  States,  406  U.S.  128  (1972);  Mills  v.  Elec. 
Auto-Lite  Co.,  396  U.S.  375  (1970). 

105.  See  Cannon  v.  Univ.  of  Chi.,  441  U.S.  677  (1979);  Allen  v.  Bd.  of  Elections,  393  U.S. 
544(1969). 

106.  393  U.S.  544(1969). 

107.  Mat  548. 

108.  Id.  at  563  (quoting  42  U.S.C.  §  1973c  (2006)). 

109.  Id.  at  565-66. 

1 10.  For  a  discussion  of  this  distinction  and  Allen's  significance  in  extending  §  5  to  vote 
dilution,  see  Daniel  P.  Tokaji,  The  New  Vote  Denial:  Where  Election  Reform  Meets  the  Voting 
Rights  Act,  57  S.C.  L.  REV.  689,  691-92,  703  (2006)  [hereinafter  Tokaji,  The  New  Vote  Denial]. 

111.  The  Court  would  later  distinguish  Allen  in  Morris  v.  Gressette,  432  U.S.  491  (1977), 
which  held  that  the  Justice  Department's  right  to  grant  administrative  preclearance  under  §  5  is  not 
subject  to  judicial  review.  Id.  at  506-07.  In  that  case,  voters  sought  to  challenge  the  Justice 
Department's  decision  not  to  object  to  a  South  Carolina  reapportionment  plan.  Id.  at  493.  The 
majority  relied  on  the  legislative  history  of  the  VRA,  which  it  characterized  as  showing  Congress's 
intent  to  provide  speedy  method  of  complying  with  §  5.  Id.  at  503.  Because  judicial  review  of 
decisions  granting  preclearance  would  delay  resolution  of  §  5  disputes,  the  Court  concluded  that 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 29 


however,  concluded  that  the  VRA's  goals  "could  be  severely  hampered  ...  if 
each  citizen  were  required  to  depend  solely  on  litigation  instituted  at  the 
discretion  of  the  Attorney  General."112  As  in  Borah,  the  Court  alluded  to  the 
limited  enforcement  resources  at  the  government's  disposal  and  Congress's  intent 
to  protect  a  class  of  citizens.1 13  The  collective  nature  of  the  harm — including  the 
representational  injury  to  minorities  whose  voting  strength  was  diluted — were 
thus  an  important  part  of  the  justification  for  implying  a  right  of  action.114 

The  decline  of  implied  rights  of  action  began  just  over  a  decade  after  Borah, 
with  the  unanimous  decision  in  Cort  v.  Ash.U5  Cort  was  both  an  election  case 
(like  Allen)  and  a  shareholder  derivative  case  (like  Borah).  Plaintiff  Ash  was  a 
shareholder  seeking  to  sue  Bethlehem  Steel  and  its  directors  for  violations  of 
criminal  provisions  of  the  Federal  Election  Campaign  Act  (FECA)  Amendments 
of  1974.116  Specifically,  Ash  alleged  that  the  corporation  and  its  directors  had 
violated  a  federal  law117  prohibiting  corporations  from  making  contributions  or 
expenditures  in  connection  with  a  federal  election,  seeking  both  injunctive  relief 
and  damages.1 18  Justice  Brennan's  opinion  for  the  Court  first  concluded  that  the 
administrative  procedure  set  forth  in  the  FECA  amendments,  under  which 
complaints  were  to  be  filed  before  the  newly  created  Federal  Election 
Commission  (FEC),  was  the  sole  means  by  which  to  secure  injunctive  relief  for 
violations  of  §  610  in  future  elections.119  Turning  to  the  shareholders'  damages 
claim,  the  Court  articulated  a  four-factor  test  for  ascertaining  whether  a  cause  of 
action  should  be  implied:  (1)  whether  plaintiff  is  "one  of  the  class  for  whose 
especial  benefit  the  statute  was  enacted";  (2)  whether  there  is  "any  indication  of 
legislative  intent,  explicit  or  implicit,  either  to  create  such  a  remedy  or  to  deny 
one";  (3)  whether  implication  of  a  right  of  action  is  "consistent  with  the 
underlying  purposes  of  the  legislative  scheme";  and  (4)  whether  the  claim  is  one 
"traditionally  relegated  to  state  law,  in  an  area  basically  the  concern  of  the 
States,"  thus  making  implication  of  a  private  right  of  action  under  federal  law 
inappropriate.120  While  the  Court  noted  the  absence  of  any  indication  that 
Congress  intended  civil  enforcement  of  §  6 1 0,  its  analysis  rested  primarily  on  the 
fact  that  protection  of  shareholders  was,  at  best,  a  subsidiary  purpose  of  the 


Congress  could  not  have  intended  these  decisions  to  be  reviewable.  Id.  at  506-07. 

112.  Allen,  393  U.S.  at  556. 

113.  Mat  557. 

114.  In  a  later  decision,  Morse  v.  Republican  Party  of  Virginia,  517  U.S.  186  (1996),  a 
majority  of  the  Court  relied  on  Allen  to  find  an  implied  right  of  action  to  enforce  §  1 0  of  the  VRA, 
which  prohibits  poll  taxes.  Id.  at  230-35;  id.  at  240  (Breyer,  J.,  concurring). 

115.  422  U.S.  66  (1975),  abrogated  by  Touche  Ross  &  Co.  v.  Redington,  442  U.S.  560  (1979) 
and  Transamerica  Mortg.  Advisors,  Inc.  v.  Lewis,  444  U.S.  1 1  (1979). 

116.  Id.  at  66. 

117.  18  U.S.C.  §610(2009). 

118.  Cort,  422  U.S.  at  71-72. 

119.  Id.  at  75-76. 

120.  Id.  at  78. 


1 30  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


statute.121  According  to  the  Court,  Congress's  main  motivation  was  to  reduce  the 
influence  of  money  on  federal  elections.122  The  absence  of  a  "clearly  articulated 
federal  right  in  the  plaintiff  led  the  Court  to  decide  against  implying  a  right  of 
action.123 

Although  Cort  denied  a  private  right  of  action,  its  reasoning  is  consonant 
with  Borak.  In  both  cases,  the  central  question  was  whether  the  plaintiff  was  part 
of  the  class  that  the  statute  was  designed  to  protect.  In  addition,  Cort  left  room 
for  courts  to  consider  the  policy  implications  of  implying  a  private  right  of 
action,  including  whether  it  would  help  or  hurt  the  underlying  regulatory 
scheme.124 

At  the  same  time,  the  Cort  test  suggests  an  underlying  tension  between  two 
different  conceptions  of  whether  a  private  right  of  action  should  lie.125  On  one 
view,  the  one  borrowed  from  Borah,  the  question  is  whether  the  statute  was 
designed  to  benefit  an  identifiable  class  of  persons  that  includes  the  plaintiff.126 
On  the  other  view,  the  question  is  whether  Congress  intended  to  confer  a  right 
of  action  on  private  plaintiffs.127 

The  tension  between  these  perspectives,  latent  in  Cort,  came  to  a  head  four 
years  later  in  Cannon  v.  University  of  Chicago. 128  The  plaintiff  in  Cannon 
alleged  that  she  had  been  denied  admission  to  federally  funded  educational 
institutions  on  the  basis  of  her  sex,  in  violation  of  Title  IX  of  the  Civil  Rights 
Act.129  The  majority  opinion,  authored  by  Justice  Stevens,  applied  the  Cort 
factors  to  find  an  implied  right  of  action  for  injunctive  relief.130  Although 
affirmative  evidence  of  a  congressional  intent  to  confer  a  right  of  action  was 
lacking,  the  Court  rested  heavily  on  the  fact  that  the  statute  was  designed  to 
benefit  a  class,  of  which  the  plaintiff  was  a  member.131  It  also  relied  on  the 
"contemporary  legal  context"  of  the  statute.132  The  statute  was  enacted  during 
the  period  after  Borah  and  before  Cort,  during  which  private  rights  of  action  were 
routinely  implied,  and  it  was  appropriate  to  presume  congressional  familiarity 
with  these  precedents.133    Justice  Powell's  dissent,  by  contrast,  insisted  that 


121.  Id.  at  80-81. 

122.  Id.  at  81-82. 

123.  Id. 

124.  Sunstein,  supra  note  87,  at  412. 

125.  See  Michael  A.  Mazzuchi,  Note,  Section  1983  and  Implied  Rights  of  Action:  Rights, 
Remedies,  and  Realism,  90  MlCH.  L.  Rev.  1062,  1078  (1992). 

126.  Bruce  A.  Boyer,  Note,  Howard  v.  Pierce:  Implied  Causes  of  Action  and  the  Ongoing 
Vitality  o/Cort  v.  Ash,  80  Nw.  U.  L.  REV.  722,  732  (1985). 

1 27.  Id.  This  view  is  evident  in  Justice  Powell's  opinion  for  the  Court  in  Morris  v.  Gressette, 
discussed  supra  note  111. 

128.  441  U.S.  677(1979). 

129.  Id.  at  677. 

130.  Id.  at  689-709. 

131.  Id.  at  693-94. 

132.  Id.  at  699. 

133.  Id.  at  731-32  (Powell,  J.,  dissenting). 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 3 1 


clearer  evidence  of  Congress's  intent  to  confer  a  private  right  of  action  was 
required.  Taking  issue  with  Corfs  four-factor  test,  Justice  Powell  insisted  that 
"[a]bsent  the  most  compelling  evidence  of  affirmative  congressional  intent,  a 
federal  court  should  not  infer  a  private  cause  of  action."134  The  only  factor  that 
should  matter,  in  Justice  Powell's  view,  was  congressional  intent  to  create  a  right 
of  action.  To  consider  other  factors,  he  argued,  was  an  "open  invitation  to 
federal  courts  to  legislate  causes  of  action  not  authorized  by  Congress,"  running 
afoul  of  the  principle  of  separation  of  powers.135 

Although  Justice  Powell's  position  did  not  carry  the  day  in  Cannon,  the 
Court  has  increasingly  gravitated  toward  his  intent-based  test  in  the  years  since 
that  case  was  decided.136  Just  a  month  after  Cannon,  the  Court  in  Touche  Ross 
&  Co.  v.  Redington137  refused  to  imply  a  private  right  of  action  in  a  securities 
case,  stating  that  "our  task  is  limited  solely  to  determining  whether  Congress 
intended  to  create  the  private  right  of  action  asserted."138  The  Court  similarly 
relied  on  the  absence  of  congressional  intent  to  create  a  right  of  action  in 
subsequent  cases  seeking  damages  for  statutes  prohibiting  fraudulent  investment 
practices139  and  a  right  to  contribution  from  other  participants  in  an  unlawful 
conspiracy.140  A  majority  of  the  Court  backed  off  a  bit  from  its  insistence  on 
evidence  of  congressional  intent  in  Thompson  v.  Thompson.141  While  denying 
a  private  right  of  action  to  seek  an  injunction  against  a  Louisiana  custody  decree 
under  the  Parental  Kidnapping  and  Prevention  Act  of  1980,  the  Court 
emphasized  that  affirmative  evidence  of  congressional  intent  was  not  necessarily 
required.142  Some  other  decisions  in  the  post-Cannon  period  have  recognized  a 
private  right  of  action,  particularly  for  statutes  passed  during  the  period  in  which 
they  were  routinely  implied.143  Still,  the  Court  has  moved  much  closer  to  Justice 


134.  Id.  at  731. 

135.  Id. 

136.  Mazzuchi,  supra  note  125,  at  1076,  1078. 

137.  442  U.S.  560(1979). 

138.  Mat 568. 

139.  Transamerica  Mortg.  Advisors,  Inc.  v.  Lewis,  444  U.S.  11  (1979). 

140.  Tex.  Indus.,  Inc.  v.  Radcliff  Materials,  Inc.,  451  U.S.  630  (1981). 

141.  484  U.S.  174(1988). 

142.  Id.  at  179  (clarifying  that  "[o]ur  focus  on  congressional  intent  does  not  mean  that  we 
require  evidence  that  Members  of  Congress,  in  enacting  the  statute,  actually  had  in  mind  the 
creation  of  a  private  cause  of  action"). 

143.  See  Morse  v.  Republican  Party  of  Va.,  517  U.S.  186,  233-34  (1996)  (relying  on  the 
contemporary  legal  context  of  the  VRA  to  imply  a  right  of  action  to  enforce  prohibition  on  poll 
taxes);  Musick,  Peeler  &  Garrett  v.  Emp'rs  Ins.  of  Wausau,  508  U.S.  286, 292-93  (1993)  (implying 
a  right  of  action  under  Rule  10b-5,  promulgated  under  §  10(b)  of  the  Securities  and  Exchange  Act 
of  1934);  Franklin  v.  Gwinnett  Cnty.  Pub.  Sch.,  503  U.S.  60,  70-71  (1992)  (implying  a  right  of 
action  for  damages  under  Title  IX  of  the  Civil  Rights  Act);  Herman  &  MacLean  v.  Huddleston,  459 
U.S.  375,  387  (1983)  (implying  a  right  of  action  under  Rule  10b-5,  promulgated  under  §  10(b)  of 
the  Securities  and  Exchange  Act  of  1934);  Merrill  Lynch,  Pierce,  Fenner  &  Smith,  Inc.  v.  Curran, 
456  U.S.  353,  387-88  (1982)  (implying  a  right  of  action  under  the  Commodity  Futures  Trading 


132  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


Powell's  position  requiring  clear  evidence  of  Congress's  intent  to  create  a  private 
right  of  action. 

The  most  striking  contemporary  example  of  the  Court's  restrictive  approach 
is  Alexander  v.  Sandoval.144  The  plaintiff  in  Alexander  sought  to  challenge  the 
Alabama  Department  of  Public  Safety's  English-only  policy,  arguing  that  it 
violated  disparate-impact  regulations  promulgated  by  the  Department  of  Justice 
under  Title  VI  of  the  Civil  Rights  Act.145  While  Cannon  implied  a  right  of  action 
for  private  individuals  to  sue  directly  under  Title  VI,  the  statute  itself  only  covers 
intentional  discrimination.146  To  make  a  disparate-impact  claim,  then,  it  was 
necessary  to  imply  a  right  of  action  in  plaintiffs  favor  under  Title  VI  regulations. 
Justice  Scalia's  opinion  for  the  Court  rejected  such  a  private  right  of  action, 
reasoning  that  "private  rights  of  action  to  enforce  federal  law  must  be  created  by 
Congress,"147  and  that  Congress  had  created  no  such  right. 

In  ascertaining  whether  a  right  of  action  was  created,  the  Alexander 
majority — consistent  with  Justice  Scalia's  textualist  approach — looked  to  the 
language  of  the  statute:  "The  judicial  task  is  to  interpret  the  statute  Congress  has 
passed  to  determine  whether  it  displays  an  intent  to  create  not  just  a  private  right 
but  also  a  private  remedy."148  In  this  respect,  the  majority  opinion  did  not  simply 
embrace  Justice  Powell's  view  from  his  dissent  in  Cannon  that  there  must  be 
"compelling  evidence"149  of  congressional  intent  to  create  a  right  of  action,  but 
goes  further.  It  suggested  that  this  evidence  must  come  from  the  statute  itself. 
The  Alexander  opinion  thus  represents  the  clearest  break  from  the  Borak  view 
that  a  right  of  action  should  generally  be  inferred  when  plaintiff  is  of  the  class  the 
statute  was  designed  to  benefit.  Justice  Scalia's  opinion  for  the  Court  makes  this 
point  explicitly  by  labeling  the  plaintiffs  contrary  argument  as  an  attempt  to 
"revert  ...  to  the  understanding  of  private  causes  of  action  that  held  sway  40 
years  ago."150  In  characteristically  colorful  fashion,  Justice  Scalia  declined  the 
invitation:  "Having  sworn  off  the  habit  of  venturing  beyond  Congress's  intent, 
we  will  not  accept  respondents'  invitation  to  have  one  last  drink."151  Looking  to 
the  statutory  text,  the  majority  found  neither  "rights-creating"  language  nor  the 
"intent  to  create  a  private  remedy."152  The  Court  also  rejected  the  argument  that 
language  in  the  regulations  is  relevant  to  the  question.  The  sole  issue,  instead, 
was  whether  the  statute  evinces  congressional  intent  to  create  a  private  right  and 


Commission  Act). 

144.  532  U.S.  275(2001). 

145.  Mat  279. 

146.  Id.  at  280-81;  Guardians  Ass'n  v.  Civil  Serv.  Comm'n  of  New  York  City,  463  U.S.  582 
(1983);  Regents  of  Univ.  of  Cal.  v.  Bakke,  438  U.S.  265  (1978). 

147.  Alexander,  532  U.S.  at  286. 

148.  Id.  (citing  Transamerica  Mortg.  Advisors,  Inc.  v.  Lewis,  444  U.S.  11,15  (1979)). 

149.  Cannon  v.  Univ.  of  Chi.,  441  U.S.  677,  730  (1979)  (Powell,  J.,  dissenting). 

150.  Alexander,  532  U.S.  at  287. 

151.  Id. 

152.  Mat 288-89. 


2010]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  133 


remedy.153 

As  Alexander  exemplifies,  the  Court  has  moved  toward  a  much  more 
restrictive  view  of  implied  rights  of  action.  In  the  decade  or  so  following  Borak, 
the  Court  was  quite  generous  in  implying  rights  of  action,  especially  where  a 
plaintiff  alleged  a  collective  harm  and  was  among  the  class  experiencing  that 
harm.  Prime  examples  were  the  minority  voters  in  Allen  who  claimed  that  injury 
to  their  collective  interest  in  fair  representation  by  virtue  of  vote  dilutive  election 
practices.154  Since  1975,  the  focus  has  increasingly  narrowed  to  whether  the 
statutory  text  shows  a  congressional  intent  to  create  both  an  individual  right  and 
a  private  remedy. 

B.  Rights  of  Action  Under  §  1983 

For  plaintiffs  seeking  to  sue  state  or  local  officials  for  violations  of  federal 
statute,  there  is  an  alternative  route  for  asserting  a  private  right  of  action.  Section 
1983  confers  a  right  of  action  on  litigants  whose  rights  under  federal  laws  have 
been  violated  by  a  person  acting  "under  color  of  any  statute,  ordinance, 
regulation,  custom,  or  usage,  of  any  State  or  Territory"155 — that  is,  under  color 
of  state  law.  As  with  implied  rights  of  action,  the  Supreme  Court  has  made  it 
increasingly  difficult  for  private  litigants  to  bring  suit  under  §  1983  for  federal 
statutory  violations.  Although  the  two  tests  are  not  identical,  plaintiffs  now  must 
show  that  Congress  intended  to  confer  an  individual  right  (though  not  necessarily 
a  remedy)  in  order  to  sue  under  §  1983.  In  addition,  the  Court  will  sometimes 
infer  that  Congress  intended  to  preclude  a  §  1983  right  of  action,  where  the 
statute  contains  an  alternative  remedial  scheme. 

The  seminal  case  for  private  plaintiffs  suing  under  §  1983  for  statutory 
violations  is  Maine  v.  Thiboutot}56  Plaintiffs  in  Thiboutot  alleged  that  the  State 
of  Maine  and  its  officials  had  violated  a  provision  of  the  Social  Security  Act  by 
denying  them  welfare  benefits  to  which  they  were  entitled.157  Because  the 
relevant  provision  of  the  Social  Security  Act  contained  no  private  right  of  action, 
plaintiffs  sought  to  make  their  claim  under  §  1983,  citing  the  statute's  language 
allowing  claims  for  violations  of  the  "Constitution  and  laws"15*  The  Court 
rejected  the  state's  argument  that  §  1983  only  provided  a  right  of  action  for 


153.  For  a  similar  view,  see  Stoneridge  Investment  Partners,  LLC  v.  Scientific-Atlanta,  Inc., 
552  U.S.  148,  164  (2008)  ("[I]t  is  settled  that  there  is  an  implied  cause  of  action  only  if  the 
underlying  statute  can  be  interpreted  to  disclose  the  intent  to  create  one. . .  ."). 

154.  Allen  v.  State  Bd.  of  Elections,  393  U.S.  544,  549  (1969). 

155.  42U.S.C.  §  1983(2006). 

156.  448  U.S.  1  (1980);  see  also  Key,  supra  note  92,  at  320  (noting  that  Maine  v.  Thiboutot 
was  the  first  case  to  confront  the  meaning  of  §  1983's  "and  laws"  language). 

157.  Thiboutot,  448  U.S.  at  2-3. 

158.  42  U.S.C.  §  1983  (emphasis  added).  Section  1983  was  originally  part  of  the  Civil  Rights 
Act  of  1 87 1 .  The  phrase  "and  laws"  was  added  in  1 874  without  any  legislative  history  to  explain 
the  reason  for  the  change.  Mank,  supra  note  102,  at  1427.  For  a  discussion  of  the  origins  of  § 
1983,  see  Sunstein,  supra  note  87,  at  398-409. 


1 34  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


violation  of  statutes  protecting  equal  rights.159  Justice  Brennan's  opinion  for  the 
majority  instead  relied  on  the  plain  meaning  of  the  term  "and  laws,"  as  used  in 
§  1983,  concluding  that  it  "means  what  it  says"  and  was  not  limited  to  civil 
rights  statutes.160  As  in  Cannon,  decided  the  previous  term,  Justice  Powell 
dissented.161  Relying  on  the  legislative  history  of  §  1983,  he  concluded  that  it 
provided  a  right  of  action  only  for  federal  statutes  protecting  equality  of  rights.162 
He  also  raised  practical  concerns  about  the  majority's  ruling,  including  the 
danger  of  litigation  that  would  "harass  state  and  local  officials"  and  overly 
burden  the  courts.163 

Although  the  Court  has  never  adopted  Justice  Powell's  position  that  §  1983 
is  limited  to  statutes  protecting  equal  rights,  it  has  imposed  two  major  limitations 
on  the  availability  of  a  §  1983  right  of  action  to  redress  violations  of  federal 
statutes.164  The  first  is  that  a  §  1983  right  of  action  is  not  available  where  it  is 
precluded — expressly  or  implicitly — by  the  statutory  scheme  that  the  private 
plaintiff  seeks  to  enforce.  This  limitation  stems  from  Middlesex  County 
Sewerage  A  uthority  v.  National  Sea  Clammers  Ass  'n,  in  which  the  Court  rej  ected 
a  §  1 983  claim  brought  by  commercial  fishermen  seeking  to  enforce  federal  laws 
restricting  water  pollution.165  It  held  that  the  "comprehensive  enforcement 
mechanisms"  in  these  statutes  demonstrated  Congress's  intent  to  preclude  a  § 
1983  right  of  action.166  Specifically,  the  environmental  statutes  in  question 
allowed  for  citizen  suits,  administrative  remedies,  and  federal  agency 
enforcement.  The  Court  concluded  that  these  "unusually  elaborate  enforcement 
provisions"  demonstrated  congressional  intent  to  supplant  a  §  1983  remedy.167 
On  the  other  hand,  in  Wright  v.  City  of  Roanoke  Redevelopment  and  Housing 
Authority?*3*  the  Court  rejected  the  argument  that  relief  under  a  federal  housing 
law  was  impliedly  precluded  by  an  administrative  enforcement  scheme.169 
Although  the  U.S.  Department  of  Housing  and  Urban  Development  had  some 
authority  to  enforce  the  statute,  the  remedies  expressly  provided  were  not 
"sufficiently  comprehensive  and  effective  to  raise  a  clear  inference  that  Congress 
intended  to  foreclose  a  §  1983  cause  of  action."170 


159.  Thiboutot,  448  U.S.  at  5. 

160.  Id.  at  4. 

161.  Id.  at  1 1  (Powell,  J.,  dissenting). 

162.  Id.  at  16. 

163.  Mat 23. 

1 64.  See  Erwin  Chemerinsky,  Federal  Jurisdiction  562-70  (5th  ed.  2007). 

165.  Middlesex  Cnty.  Sewerage  Auth.v.Nat'l  Sea  Clammers  Ass'n,  453  U.S.  1, 17-18(1981). 

166.  Id.  at  20. 

167.  Id.  at  13, 21  \  see  also  Smith  v.  Robinson,  468  U.S.  992, 1003-04  (1984)  (finding  implied 
preclusion  of  a  §  1983  claim  under  the  Education  of  the  Handicapped  Act). 

168.  479  U.S.  418(1987). 

169.  Id.  at  424. 

170.  Id.  at  425;  see  also  Blessing  v.  Freestone,  520  U.S.  329,  348  (1997)  (rejecting  an 
argument  that  an  administrative  scheme  foreclosed  §  1 983  relief  where  there  was  no  private  judicial 
or  administrative  remedy). 


2010]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  135 


Wright  says  that  congressional  intent  to  preclude  must  be  clear — the  reverse 
of  the  presumption  that  now  exists  for  implied  rights  of  action — for  a  §  1983 
claim  to  be  foreclosed  by  an  alternative  enforcement  scheme.171  More  recently, 
however,  the  Court  has  held  that  preclusion  will  be  presumed  where  the  statute 
includes  its  own  private  remedy.  In  City  ofRancho  Palos  Verdes  v.  Abrams,112 
an  amateur  radio  operator  sought  to  sue  the  municipality  in  which  he  lived  under 
§  1983,  claiming  that  it  had  violated  various  provisions  of  the 
Telecommunications  Act  of  1996.173  Justice  Scalia's  opinion  for  the  Court 
rejected  plaintiffs  §  1983  claim,  reasoning  that  a  statute's  "provision  of  an 
express,  private  means  of  redress  in  the  statute  itself  is  ordinarily  an  indication 
that  Congress  did  not  intend  to  leave  open  a  more  expansive  remedy  under  § 
1983."174  This  suggests  that  a  statute's  inclusion  of  private  remedy  will 
ordinarily  be  presumed  to  foreclose  a  §  1983  claim.  Because  the 
Telecommunications  Act  provided  remedies  to  private  parties,  and  because 
plaintiff  failed  to  counter  the  presumption  against  a  §  1983  claim,  the  Court 
concluded  that  this  claim  was  impliedly  precluded.175  By  contrast,  an 
administrative  procedure  providing  only  for  the  withdrawal  of  federal 
funding — and  not  for  a  private  remedy — is  insufficient  to  preclude  a  §  1983 
claim.176 

The  other  major  limitation  on  using  §  1983  to  enforce  a  federal  statute  is  the 
requirement  that  the  statute  confer  rights.  This  requirement  is  drawn  from  the 
language  of  §  1983  itself,  which  states  that  plaintiffs  deprived  of  "rights, 
privileges,  or  immunities"  secured  by  federal  law  may  obtain  redress.177  Over 
time,  this  requirement  too  has  become  more  stringent,  with  the  current  Court 
requiring  an  unambiguous  conferral  of  an  individual  right  to  make  a  §  1 983  claim 
under  a  federal  statute.  The  Court  first  carved  out  this  limitation  in  Pennhurst 
State  School  and  Hospital  v.  Halderman,xn  decided  just  one  year  after 
Thiboudot.  Justice  Rehnquist's  opinion  for  the  Court  concluded  that  the  statute 
in  question,  the  Developmentally  Disabled  Assistance  and  Bill  of  Rights  Act  of 
1975,  declared  policy  but  did  not  create  substantive  rights.179  In  Golden  State 
Transit  Corp.  v.  City  of  Los  Angeles,  the  Court  held  that  a  private  plaintiff  may 
sue  under  §  1983  if  a  three-part  test  is  satisfied:  (1)  the  federal  statute  creates  a 
binding  obligation;  (2)  the  interest  is  sufficiently  specific  as  to  be  judicially 


171.  Wright,  479  U.S.  at  425. 

172.  544  U.S.  113(2005). 

173.  Id.  at  116-18. 

174.  Mat  121. 

175.  Id.  at  122. 

176.  Fitzgerald  v.  Barnstable  Sch.  Comm.,  129  S.  Ct.  788,  795-96  (2009). 

177.  42U.S.C.  §  1983(2006). 

178.  451  U.S.  1  (1981). 

179.  Id.  at  22.  The  Pennhurst  Court  relied  in  part  on  the  fact  that  the  federal  statute  in 
question  was  enacted  pursuant  to  Congress's  spending  power,  and  that  the  remedy  for  failure  to 
comply  with  such  statutes  is  usually  termination  of  funds.  Id.  at  28. 


136  INDIANA  LAW  REVIEW  [Vol.  44: 1 13 


enforceable;  and  (3)  the  statute  is  designed  to  benefit  the  plaintiff.180  Subsequent 
cases,  however,  have  tightened  this  test  by  clarifying  that  the  federal  statute  must 
do  more  than  impose  a  duty  on  state  or  local  officials.181  There  must  instead  be 
an  intent  to  confer  a  specific  right  on  individuals.182 

The  Court's  most  emphatic  insistence  that  federal  law  must  confer  an 
individual  right  appears  in  Gonzaga  University  v.  Doe.m  The  plaintiff  was  a 
former  student  at  Gonzaga  University  who  alleged  that  the  school  had  released 
information  in  violation  of  the  Family  Educational  Rights  and  Privacy  Act 
(FERPA).184  In  rejecting  his  claim,  the  Court  reviewed  its  prior  cases  holding 
that  laws  imposing  a  specific,  binding  obligation  on  states  were  sufficient  to 
allow  §  1983  relief.185  While  acknowledging  that  some  language  in  these  cases 
suggested  a  more  generous  standard,  the  Gonzaga  majority  expressly  "rejected] 
the  notion  that .  .  .  anything  short  of  an  unmbiguously  conferred  right"  suffices 
to  support  a  §  1983  right  of  action.186  The  Court  also  clarified  that  only  an 
"individual  right"  will  suffice.187  Once  plaintiff  establishes  that  the  statute 
unambiguously  confers  an  individual  right,  the  burden  shifts  to  the  state  or  local 
defendant  to  show  that  Congress  intended  to  foreclose  a  §  1983  remedy.188  In 
this  respect,  the  inquiry  differs  from  that  which  now  applies  to  implied  rights  of 
action,  under  which  plaintiff  has  the  burden  of  demonstrating  congressional 
intent  to  create  both  a  private  right  and  a  private  remedy.189  But  the  first  part  of 
the  inquiry — whether  Congress  intended  to  create  an  individual  right — is  now  the 
same  for  both  implied  and  §  1983  rights  of  action.190    Because  FERPA' s 


180.  Golden  State  Transit  Corp.  v.  City  of  L.A.,  493  U.S.  103,  106  (1989);  see  also  Wilder 
v.  Va.  Hosp.  Ass'n,  496  U.S.  498,  510-11  (1990)  (finding  a  §  1983  right  of  action  where  a  statute 
created  a  "binding  obligation");  Mazzuchi,  supra  note  125,  at  1095-96  (understanding  Wilder  to 
mean  that  §  1 983  creates  a  presumption  of  private  enforceability  where  a  right  exists  under  the  Cort 
test). 

181.  See  Key,  supra  note  92,  at  346-52  (describing  and  criticizing  the  Court's  approach  to 
rights  of  action  under  §  1983  for  federal  statutory  violations). 

182.  See,  e.g.,  Blessing  v.  Freestone,  520  U.S.  329,  344-45  (1997)  (rejecting  a  §  1983  claim 
for  violation  of  provisions  of  Title  IV-D  of  the  Social  Security  Act  requiring  states  to  provide  child 
support  services  on  the  ground  that  they  did  not  "give  rise  to  individualized  rights");  Suter  v.  Artist 
M.,  503  U.S.  347,  363  (1992)  (rejecting  §  1983  claim  for  alleged  violation  of  Adoption  Assistance 
and  Child  Welfare  Act  of  1980,  which  imposed  a  "generalized  duty  on  the  State,"  but  did  not 
"unambiguously  confer  an  enforceable  right  upon  the  Act's  beneficiaries"). 

183.  536  U.S.  273  (2002). 

184.  Id.  at  277. 

185.  Mat  279-82. 

186.  Id.  at  283. 

187.  Id.  at  284. 

188.  Id.  at  284,  284  n.4. 

189.  Mat 284. 

190.  Id.  at  285  ("A  court's  role  in  discerning  whether  personal  rights  exist  in  the  §  1983 
context  should  therefore  not  differ  from  its  role  in  discerning  whether  personal  rights  exist  in  the 
implied  rights  of  action  context.  .  .  .  Both  inquiries  simply  require  a  determination  as  to  whether 


2010]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  137 


nondisclosure  provisions  lacked  clear  and  unambiguous  "rights-creating" 
language,  the  Court  found  there  to  be  no  §  1983  right  of  action  to  enforce 
them.191 

Gonzaga  thus  imposed  the  most  restrictive  test  to  date  on  plaintiffs  seeking 
relief  under  §  1983  for  violations  of  a  federal  statute.  There  may  be  some  basis 
for  limiting  its  impact  in  the  future,  given  that  the  majority  spends  much  of  its 
opinion  emphasizing  that  FERPA  and  other  statutes  considered  in  earlier  §  1983 
cases  were  enacted  pursuant  to  Congress's  Spending  Clause  authority.192  Where 
Congress  acts  pursuant  to  this  power,  the  "typical  remedy"  for  a  violation  is 
termination  of  federal  funds.  193  If  Gonzaga  's  demanding  test  were  limited  to 
statutes  enacted  under  Congress's  spending  power,  then  its  rationale  resembles 
the  preclusion  reasoning  articulated  in  cases  like  Sea  Clammers194  andAbrams.195 
On  this  theory,  the  restrictive  test  for  finding  a  §  1983  right  of  action  is 
predicated  on  the  availability  of  an  alternative  remedy — namely,  cutting  off 
federal  funds — that  is  presumed  to  preclude  a  private  claim. 

The  problem  with  this  argument  is  that  Gonzaga' s  language  requiring  an 
"unambiguously  conferred  right"  is  not  expressly  limited  to  Spending  Clause 
cases.  This  suggests  that  the  Court  intended  that  the  same  restrictive  test  for  a 
§  1983  right  of  action  apply,  regardless  of  the  subject  matter  of  the  dispute  and 
the  source  of  constitutional  authority  for  the  statute  in  question.196  So 
interpreted,  Gonzaga  represents  a  major  impediment  to  private  plaintiffs  seeking 
redress  for  federal  statutory  violations  committed  by  state  or  local 
actors — including  actions  under  federal  election  statutes.  Like  all  the  previous 
§  1983  right-of-action  cases  decided  by  the  Supreme  Court,  Gonzaga  did  not 
involve  an  election  dispute.  Its  language  is  nevertheless  broad  enough  to 
encompass  such  disputes. 

III.  Private  Enforcement  of  Federal  Election  Statutes 

The  Court's  restrictive  doctrine  on  private  rights  of  action  has  mostly 
developed  outside  the  context  of  elections.   In  fact,  prior  to  Brunner  v.  Ohio 


or  not  Congress  intended  to  confer  individual  rights  upon  a  class  of  beneficiaries.");  see  also  Mank, 
supra  note  102,  at  1448  ("Chief  Justice  Rehnquist  significantly  changed  the  test  [in  Gonzaga]  . . 
.  by  emphasizing  that  the  same  issue  of  congressional  intent  controls  as  in  implied  right  of  action 
cases."). 

191.  Gonzaga,  536  U.S.  at  287.  In  dissent,  Justice  Stevens  protested  the  majority's  partial 
conflation  of  the  tests  for  implied  and  §  1983  rights  of  action,  on  the  ground  that  §  1983  claims  do 
not  implicate  the  same  separation-of-powers  concerns.  Id.  at  300  (Stevens,  J.,  dissenting). 

192.  Mat 278-81. 

193.  Id.  at  280  (quoting  Pennhurst  State  Sch.  &  Hosp.  v.  Halderman,  451  U.S.  1, 28  (1981)). 

1 94.  See  supra  notes  165-67. 

195.  See  supra  notes  1 72-75 . 

196.  See  Key,  supra  note  92,  at  324  (describing  the  result  of  the  Court's  jurisprudence  as 
"eliminat[ion]  of  the  practical  utility  of  §  1983  statutory  causes  of  action,  while  ostensibly  still 
recognizing  their  existence"). 


138  INDIANA  LAW  REVIEW  [Vol.  44: 1 13 


Republican  Party,191  none  of  the  Court's  decisions  on  §  1983  rights-of-action 
involved  election  law  disputes.  This  is  partly  because  some  of  the  most 
important  federal  election  statutes — including  §  2  of  the  Voting  Rights  Act198  and 
the  National  Voter  Registration  Act199 — are  privately  enforceable.  In  fact,  the 
prominence  of  these  statutes  is  at  least  partly  attributable  to  the  availability  of  a 
private  right  of  action  to  enforce  them. 

It  is  unclear  whether  other  election  statutes  are  privately  enforceable,  and 
there  have  been  several  recent  cases  in  which  lower  courts  have  applied  the 
Court's  right-of-action  jurisprudence  to  claims  that  federal  election  statutes  had 
been  violated.  This  section  canvasses  lower  court  cases  brought  to  remedy 
alleged  violations  of  three  statutes:  (1)  the  voter  qualification  and  registration 
requirements  codified  in  42  U.S.C.  §  1971;(2)UOCAVA;and(3)HAVA.  Ithen 
turn  to  the  Brunner  litigation,  explaining  why  the  underlying  question  was  more 
complex  than  the  Court's  brief  opinion  might  lead  one  to  believe.  This  part  of 
the  Article  is  mainly  focused  on  the  application  of  existing  private-right-of-action 
doctrine,  leaving  a  critique  of  that  doctrine  for  Part  IV. 

A.  Section  1971 

The  federal  election  statute  that  has  led  to  the  most  opinions  over  private 
rights  of  action  is  42  U.S.C.  §  1971.  This  is  somewhat  ironic,  given  the  relative 
obscurity  of  this  provision,  but  not  entirely  surprising.  As  described  below,  most 
courts  to  have  addressed  the  issue  have  concluded  that  this  statute  is  not  privately 
enforceable.  The  statute's  obscurity  is  partly  attributable  to  the  courts'  general 
refusal  to  imply  a  private  right  of  action. 

The  voter  qualification  and  registration  requirements  codified  in  §  1 97 1  have 
their  origins  in  a  voting  rights  statute  enacted  in  1870,  one  year  before  §  1983. 
Through  §  1971,  Congress  exercised  its  power  to  enforce  the  newly  enacted 
Fifteenth  Amendment  by  prohibiting  state  and  local  entities  from  denying  the 
vote  based  on  race,  color,  or  previous  condition  of  servitude.200  Section  1971 
was  amended  as  part  of  the  Civil  Rights  Act  of  1957  to  prohibit  the  intimidation 
and  coercion  of  voters  and  to  allow  for  enforcement  by  the  U.S.  Attorney 


197.  129  S.  Ct.  5  (2008)  (per  curiam). 

198.  42  U.S.C.  §  1973  (2006).  Interestingly,  §  2  does  not  expressly  confer  a  right  of  action, 
though  the  Supreme  Court  has  routinely  allowed  private  enforcement  of  this  provision.  See,  e.g., 
Johnson  v.  De  Grandy,  512  U.S.  997  (1994);  Chisom  v.  Roemer,  501  U.S.  380  (1991). 
Commentators  have  likewise  stated  that  §  2  provides  a  private  right  of  action,  with  little  or  no 
explanation  of  why.  See  Nathaniel  Persily,  Options  and  Strategies  for  Renewal  of  Section  5  of  the 
Voting  Rights  Act,  49  How.  L.J.  717,  732  (2006).  In  one  of  the  few  cases  to  address  the  question 
expressly,  which  was  decided  shortly  after  the  VRA's  enactment,  a  federal  district  court  concluded 
that  §  2  was  enforceable  through  §  1983.  Gray  v.  Main,  291  F.  Supp.  998,  999-1000  (M.D.  Ala. 
1966). 

199.  42  U.S.C.  §§  1973gg-1973gg-10. 

200.  Id.  §  1983. 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 39 


General.201  Congress  amended  §  1971  again  as  part  of  the  Civil  Rights  Act  of 
1960,  enhancing  the  federal  courts'  remedial  powers  in  cases  where  a  "pattern 
or  practice"  of  violations  was  found  to  exist.202 

The  most  significant  amendment,  for  purposes  of  private  enforceability,  was 
the  addition  of  requirements  pertaining  to  voter  qualifications  and  registration  as 
part  of  the  Civil  Rights  Act  of  1964.203  These  amendments,  now  codified  at  42 
U.S.C.  §  1971(a)(2),  include  two  key  components.  First,  with  respect  to  voter 
qualifications,  the  statute  prohibited  the  application  of  a  "standard,  practice,  or 
procedure"  to  some  voters  that  was  different  from  that  applied  to  other  voters  in 
the  same  jurisdiction.204  Second,  the  statute  prohibited  the  denial  of  the  right  to 
vote  based  on  an  "error  or  omission  on  any  record  or  paper  relating  to  any 
application,  registration,  or  other  act  requisite  to  voting,"  unless  the  error  or 
omission  was  "material  in  determining  whether  such  individual  is  qualified  .  .  . 
to  vote."205  By  their  terms,  these  requirements  are  not  limited  to  race 
discrimination,  and  some  courts  have  held  that  they  apply  to  discrimination  on 
other  grounds,  including  sex  or  student  status.206 

The  1957,  1960,  and  1964  civil  rights  acts  are  generally  viewed  as  having 
been  ineffective  in  protecting  voting  rights,  because  they  depended  mainly  on 
litigation  for  enforcement.  Southern  federal  district  judges  were  often  unwilling 
to  intercede,  and  even  when  they  did,  new  disenfranchising  practices  were  often 
adopted  right  after  the  old  ones  had  been  stopped.207  The  1 964  amendments  to 
§  1 97 1  might  well  have  assumed  greater  importance,  however,  had  Congress  not 
enacted  the  VRA  the  next  year.208  The  VRA  effectively  overwhelmed  the  system 
of  disenfranchisement  that  had  kept  Southern  blacks  from  voting  since  the  end 


201.  Id.  §  1971(g). 

202.  Id.  §  1971(e). 

203.  Pub.  L.  88-352,  §  101,  78  Stat.  241  (1964). 

204.  42  U.S.C.  §  1971(a)(2)(A). 

205.  Id.  §  1971(a)(2)(B).  The  1964  amendment  also  added  a  prohibition  on  literacy  tests, 
unless  administered  wholly  in  writing  with  the  questions.  Id,  §  1971(a)(2)(C).  This  change  was 
effectively  supplanted  by  the  temporary  ban  on  literacy  tests  in  covered  jurisdictions  (made 
permanent  in  1975)  in  §  4  of  the  Voting  Rights  Act  of  1965.  Id.  §  1973(b).  Bernard  Grofman 
et  al.,  Minority  Representation  and  the  Quest  for  Voting  Equality  21  (1992);  Armand 
Derfher,  Vote  Dilution  and  the  Voting  Rights  Act  Amendments  of  1982,  in  MINORITY  VOTE 
Dilution  145,  149  (Chandler  Davidson  ed.,  1984). 

206.  See  Ball  v.  Brown,  450  F.  Supp.  4,  7-8  (N.D.  Ohio.  1977)  (concluding  that  §  1971 
reaches  sex  discrimination);  Frazier  v.  Callicutt,  383  F.  Supp.  15,  19-20  (N.D.  Miss.  1974) 
(concluding  that  §  1 97 1  (a)(2)(A)  reaches  discrimination  against  students).  But  see  Ind.  Democratic 
Party  v.  Rokita,  458  F.  Supp.  2d  775, 839-40  (S.D.  Ind.  2006)  (questioning  plaintiffs'  argument  that 
§  1971(a)(2)  reaches  non-racial  discrimination,  but  then  assuming  that  it  does  and  rinding  no 
violation),  aff'don  other  grounds  sub  nom.  Crawford  v.  Marion  Cnty.  Election  Bd.,  472  F.3d  949 
(7th  Cir.  2007),  aff'd,  553  U.S.  181  (2008). 

207.  Tokaji,  The  New  Vote  Denial,  supra  note  1 10,  at  702. 

208.  Pub.  L.  No.  89-110,  79  Stat  457  (codified  as  amended  at  42  U.S.C.  §§  1971,  1973  to 
1973bb-l  (2006)). 


1 40  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


of  Reconstruction.209  Because  the  VRA  was  so  effective  in  enfranchising 
Southern  blacks,210  §  1971  's  requirements — and  with  it  the  question  of  whether 
the  statute  is  privately  enforceable — receded  in  significance.211 

There  have,  however,  been  several  cases  in  which  private  plaintiffs  have 
sought  to  enforce  the  qualification  and  registration  requirements  of  §  1971.212 
The  Supreme  Court  has  never  confronted  the  issue  directly,  although  it  did 
assume  private  enforceability  in  United  States  v.  Mississippi,  stating  that  "private 
persons  might  file  suits  under  §  1971  against  individual  registrars  who 
discriminated  in  applying  otherwise  valid  laws."213  Because  that  case  was 
brought  by  the  U.S.  government  rather  than  private  plaintiffs,  it  is  dictum  that  has 
been  given  scant  weight  by  subsequent  courts. 

There  is  a  split  of  authority  in  the  lower  courts  on  the  question  of  §  1971  's 
private  enforceability,  with  most  rejecting  the  argument  that  there  is  a  private 
right  of  action.  But  in  all  of  the  cases  rejecting  a  private  right  of  action,  the 
analysis  is  brief,  conclusory,  and  unsatisfying.214  Based  on  §  1971  's  express 
provision  for  enforcement  by  the  Attorney  General,2 1 5  these  courts  concluded  that 
private  enforcement  is  precluded.  Without  exception,  the  decisions  fail  to  apply 
the  tests  established  by  the  Supreme  Court,  either  for  an  implied  right  of  action 
or  for  a  §  1983  right  of  action. 

The  most  thorough  analysis  of  the  issue  appears  in  the  one  appellate  decision 


209.  Tokaji,  The  New  Vote  Denial,  supra  note  1 10,  at  702. 

210.  Id.;  see  also  Grofman  et  al.,  supra  note  205,  at  23  tbl.l  (showing  increase  in  black 
registration  in  covered  states  from  29.3%  to  52.1%  between  1965  and  1967). 

211.  The  VRA  included  an  amendment  to  §  1971,  extending  it  from  federal  elections  to  all 
elections.  Pub.  L.  No.  89-1 10,  §  15,  79  Stat.  37,  445  (codified  as  amended  at  42  U.S.C.  §  1971 
(2006)). 

212.  One  of  those  cases  was  the  challenge  to  Indiana' s  photo  identification  law,  which  ultimately 
led  to  the  Supreme  Court's  decision  upholding  its  constitutionality.  Crawford  v.  Marion  Cnty. 
Election  Bd.,  472  F.3d  949  (7th  Cir.  2007),  aff'd,  553  U.S.  1 8 1  (2008).  The  district  court  in  that  case 
rejected  plaintiffs'  §  1 97 1  claim  on  the  merits  without  deciding  whether  there  was  a  private  right  of 
action  to  enforce  the  statute.  Ind.  Democratic  Party  v.  Rokita,  458  F.  Supp.  2d  775, 842  n.  1 12  (S.D. 
Ind.  2006),  aff'don  other  grounds  sub  nom.  Crawford  v.  Marion  Cnty.  Election  Bd.,  472  F.3d  949 
(7th  Cir.  2007),  aff'd,  553  U.S.  181  (2008),  and  neither  the  Seventh  Circuit  nor  the  Supreme  Court 
addressed  §  1971.  Crawford,  472  F.3d  949  (7th  Cir.  2007),  aff'd,  553  U.S.  181  (2008). 

213.  380  U.S.  128,  137(1965). 

214.  See,  e.g. ,  McKay  v.  Thompson,  226  F.3d  752, 756  (6th  Cir.  2000);  Gilmore  v.  Amityville 
Union  Free  Sch.  Dist.,  305  F.  Supp.  2d  271,  279  (E.D.N. Y.  2004);  Spivey  v.  Ohio,  999  F.  Supp. 
987, 996  (N.D.  Ohio  1998),  aff'd  sub  nom.  Mixon  v.  Ohio,  193  F.3d  389, 406  n.12  (6th  Cir.  1999); 
McKay  v.  Altobello,  No.  96-3458,  1 996  WL  635987,  at  *2  (E.D.  La.  Oct.  31,1 996);  Cartagena  v. 
Crew,  No.  CV-96-3399,  1996  WL  524394,  at  *3  n.8  (E.D.N. Y.  Sept.  5,  1996);  Willing  v.  Lake 
Orion  Cmty.  Sch.  Bd.  of  Trs.,  924  F.  Supp.  2d  815,  820  (E.D.  Mich.  1996);  Good  v.  Roy,  459  F. 
Supp.  403,  405  (D.  Kan.  1978);  see  also  Broyles  v.  Texas,  618  F.  Supp.  2d  661,  697  n.l  1  (S.D. 
Tex.  2009)  (citing  cases  that  have  found  no  private  right  of  action  to  enforce  §  197,  but  disposing 
of  case  on  other  grounds),  aff'd,  No.  09-20290,  2010  WL  2465093  (5th  Cir.  June  1 1,  2010). 

215.  42  U.S.C.  §  1971(c)  (2006). 


2010]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  141 


expressly  holding  that  there  is  a  private  right  of  action  to  enforce  §  1971.  In 
Schwier  v.  Cox,216  the  Eleventh  Circuit  considered  a  challenge  to  Georgia's  law 
requiring  that  voters  furnish  their  Social  Security  numbers.217  The  court 
canvassed  the  history  of  §  1971,  noting  that  the  provisions  for  Attorney  General 
enforcement  were  not  added  until  1957,  thus  suggesting  that — at  least  from  the 
enactment  of  §  1983  in  1871  until  1957 — §  1971  was  enforceable  by  private 
plaintiffs.218  The  court  also  relied  in  part  on  Supreme  Court  precedent  holding 
that  portions  of  the  VRA  are  privately  enforceable,  despite  the  fact  that  they  may 
also  be  enforced  by  the  Attorney  General.219  In  other  words,  the  express 
provision  for  enforcement  by  the  federal  government  does  not  necessarily 
preclude  private  enforcement.  The  Eleventh  Circuit  then  turned  to  the  test  for 
whether  there  is  a  private  right  of  action  under  §  1983,  finding  that  §  1971 
includes  precisely  the  sort  of  clear,  rights-creating  language  that  the  Gonzaga 
Court  demanded.220  Accordingly,  the  Schwier  court  found  the  requirements  of 
§  1971  to  be  privately  enforceable.221 

Despite  the  fact  that  most  other  courts  have  disagreed,  the  Eleventh  Circuit's 
conclusion  that  §  1971  is  privately  enforceable  is  correct,  even  under  the 
stringent  test  that  the  Gonzaga  Court  set  forth  for  private  rights  of  action  under 
§  1983.  The  lower  courts  that  have  reached  the  opposite  conclusion  have  simply 
failed  to  apply  the  Court's  test. 

There  is  an  additional  factor,  not  mentioned  in  Schwier  or  formally  part  of 
the  doctrine,  that  provides  further  support  for  the  conclusion  that  §  1971  should 
be  privately  enforceable:  the  lack  of  any  administrative  agency  able  to  provide 
guidance  on  the  statute's  meaning.222  Although  §  1971  has  been  around  for  quite 


216.  340  F.3d  1284  (1 1th  Cir.  2003).  There  are  also  some  district  court  decisions  finding  a 
private  right  of  action  to  enforce  §  1971.  See,  e.g.,  Ball  v.  Brown,  450  F.  Supp.  4,  7-8  (N.D.  Ohio 
1977);  Brooks  v.Nacrelli,  331  F.  Supp.  1350, 1351-52  (E.D.  Pa.  1971).  There  are  also  other  cases 
in  which  the  courts  have  reached  the  merits  of  private  plaintiffs'  §  1971  claims  without  expressly 
addressing  the  issue  of  whether  there  is  a  private  right  of  action.  See,  e.g.,  Ballas  v.  Symm,  494 
F.2d  1167, 1171-72  (5th  Cir.  1974);  Frazier  v.  Callicutt,  383  F.  Supp.  15, 19-20  (N.D.  Miss.  1974); 
Brier  v.  Luger,  351  F.  Supp.  313,  316  (M.D.  Pa.  1972);  Brown  v.  Post,  279  F.  Supp.  60,  63-64 
(W.D.  La.  1968). 

217.  Schwier,  340  F.3d  at  1293-94. 

218.  Id  at  1295-97. 

219.  Id  at  1294-96. 

220.  Id  at  1296  (citing  Gonzaga  Univ.  v.  Doe,  536  U.S.  273,  284  (2002)). 

221.  Mat  1297. 

222.  It  might  be  argued  that  the  Civil  Rights  Act  of  1 964,  which  added  the  qualification  and 
registration  provisions  codified  at  §  1971(a)(2),  conferred  this  authority  on  the  U.S.  Commission 
on  Civil  Rights  (USCCR).  42  U.S.C.  §  1971(a)(2)  (2006).  Specifically,  §  507  of  the  1964  Act 
gave  the  USCCR  broad  power  to  make  such  rules  and  regulations  as  are  necessary  to  carry  out  the 
purposes  of  the  Act.  Pub.  L.  No.  88-352,  §  507,  78  Stat.  241,  252  (1964).  The  United  States 
Commission  on  Civil  Rights  Act  of  1 983,  which  made  the  USCCR  an  independent  agency,  included 
the  same  language — although  the  reference  to  "this  Act"  is  best  understood  as  referring  only  to  the 
1983  Act  (rather  than  to  §  1971(a)(2)  or  other  provisions  added  by  the  Civil  Rights  Act  of  1964). 


1 42  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


a  while,  there  is  relatively  little  precedent  on  precisely  what  practices  are  barred 
by  its  provisions,  particularly  the  qualification  and  registration  provisions  of  § 
1971  (a)(2).  Without  any  agency  empowered  to  issue  regulations  that  would 
clarify  the  scope  of  §  1971,  the  courts  are  the  only  entity  in  a  position  to  provide 
authoritative  guidance.  But  without  a  private  right  of  action,  the  only  way  of 
getting  disputes  into  court  would  be  for  the  Attorney  General  to  bring  suit.  Even 
putting  aside  the  dangers  of  giving  exclusive  enforcement  authority  to  the 
Department  of  Justice  (a  concern  to  which  I  will  return  in  Part  IV),223  the  lack  of 
a  private  right  of  action  would  limit — and  no  doubt  has  limited — the  ability  of 
courts  to  clarify  the  meaning  of  §  1971.  Although  this  is  not  something  that  the 
Supreme  Court  has  recognized  to  be  relevant  in  assessing  whether  there  is  an 
implied  or  §  1983  right  of  action,  the  ability  of  courts  to  clarify  the  law  would  be 
a  significant  benefit  of  private  enforceability.  For  without  a  private  right  of 
action,  the  only  cases  that  can  be  heard  in  a  federal  court  are  the  ones  that  the 
U.S.  government  brings.  If  the  Department  of  Justice  declines  to  bring  litigation 
under  §  1971  (or,  for  that  matter,  any  other  federal  election  statute),  then  its 
meaning  will  remain  indeterminate  for  both  the  voters  it  protects  and  the  election 
officials  who  are  required  to  follow  it. 

B.  UOCAVA 

Another  election  statute  that  lacks  an  express  private  right  of  action  is  the 
Uniformed  and  Overseas  Citizens  Absentee  Voting  Act  (UOCAVA).224  This 
statute  has  generated  even  less  litigation  than  §  1971,  and  so  far,  no  decisions 
have  expressly  held  whether  there  is  an  implied  or  §  1983  right  of  action  to 
enforce  the  statute.225 

UOCAVA  has  its  origins  in  the  Federal  Voting  Assistance  Act  of  1955,226 
which  was  designed  to  allow  members  of  the  armed  services  and  their  families 
to  vote  absentee  when  stationed  overseas,227  and  the  Overseas  Citizens  Voting 
Rights  Act  of  1975,228  which  extended  absentee  voting  to  other  citizens  residing 


42  U.S.C.  §  1975b(d).  In  any  event,  the  USCCR  functions  as  an  investigatory  rather  than 
regulatory  agency.  See  Peter  P.  Swire,  Note,  Incorporation  of  Independent  Agencies  into  the 
Executive  Branch,  94  Yale  L.J.  1766,  1782  (1985)  (characterizing  USCCR  as  a  "purely 
investigatory  agency").  Throughout  its  history,  the  USCCR  has  apparently  understood  its 
rulemaking  authority  as  limited  to  its  internal  operations,  and  not  to  include  the  interpretation  of 
substantive  provisions  of  civil  rights  law  such  as  §  1971. 

223.  See  infra  Part  IV. 

224.  42  U.S.C.  §§  1973ff-1973ff-6  (2006). 

225.  For  a  summary  of  litigation  involving  UOCAVA,  see  Deborah  Buckman,  Validity, 
Construction,  and  Application  of  Uniformed  and  Overseas  Citizens  Absentee  Voting  Act 
(UOCAVA),  42  U.S.C.A.  §§  1973ffet  seq.,  1  A.L.R.  FED.  2d  251  (2005). 

226.  42U.S.C.§§  1973cc-1973cc-3,  repeated  fey  UOCAVA,  Pub.  L.  No.  99-410,  §203, 100 
Stat.  924. 

227.  Id. 

228.  42  U.S.C.  §§  1973dd-1973dd-5,  repealed  by  UOCAVA,  Pub.  L.  No.  99-410,  §  203, 100 


2010]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  143 


outside  the  United  States.229  In  1986,  Congress  repealed  these  statutes  and 
enacted  UOCAVA  in  their  place,  out  of  a  recognition  that  overseas  voters  still 
faced  serious  obstacles  to  voting  absentee  and  having  their  votes  counted.230 
Broadly  speaking,  UOCAVA  requires  states  to  allow  uniformed  and  overseas 
voters  to  use  absentee  voter  procedures.231  UOCAVA  also  prescribes  a  process 
by  which  voters  who  request  but  do  not  receive  their  absentee  ballots  in  time  may 
cast  a  federal  write-in  ballot,232  and  it  includes  a  number  of  "recommended"  steps 
that  states  can  take  to  facilitate  voting  by  uniformed  and  overseas  voters.233  This 
leaves  many  of  the  details  to  be  worked  out  by  individual  states.234  The  U.S. 
Attorney  General  has  the  power  to  enforce  UOCAVA  through  actions  for 
declaratory  or  injunctive  relief,  but  the  act  is  silent  on  private  enforceability.235 
The  Department  of  Justice's  website  reports  there  were  thirty-five  lawsuits  to 
enforce  UOCAVA  between  1986  and  2009.236 

In  2009,  Congress  strengthened  UOCAVA  through  the  Military  and  Overseas 
Voter  Empowerment  (MOVE)  Act.237  Finding  that  military  and  overseas  voters 
still  faced  a  "complicated  and  convoluted  system,"238  the  MOVE  Act  imposed 
more  specific  requirements  on  the  states.  Among  these  requirements  are:  (1)  to 
allow  the  electronic  transmission  of  registration  materials,  ballot  requests,  and 
blank  ballots,  (2)  to  give  covered  voters  forty-five  days  to  complete  and  return 
their  absentee  ballots,  (3)  to  create  a  system  for  determining  whether  voters' 
ballots  have  been  received,  (4)  to  ensure  the  privacy  of  military  and  overseas 
voters,  and  (5)  to  prohibit  states  from  rejecting  registration  or  ballot  requests  for 
lack  of  notarization  or  other  formalities.239  It  also  gives  a  presidential  designee 
(now  the  Secretary  of  Defense)  various  responsibilities,  such  as  the  establishment 
of  procedures  for  delivery  of  ballots  and  an  outreach  program  for  voters  covered 
by  the  Act.240 


Stat.  924. 

229.  Id. 

230.  H.R.  Rep.  No.  99-765,  at  10  (1986),  reprinted  in  1986  U.S.C.C.A.N.  2009,  2014. 

231.  42  U.S.C.  §  1973ff-l  (2006). 

232.  Id.  §  1973ff-2. 

233.  Id.  §  1974ff-3. 

234.  See  Bush  v.  Hillsborough  Cnty.  Canvassing  Bd.,  123  F.  Supp.  2d  1305, 1314  (N.D.  Fla. 
2000). 

235.  42  U.S.C.  §  1973ff-4. 

236.  Voting  Section  Litigation,  U.S.  Dep't  OF  Justice,  http://www.justice.gov/crt/voting/ 
litigation/caselist.php#uocava_cases  (last  visited  Sept.  29,  2010). 

237.  Military  and  Overseas  Voter  Empowerment  Act,  Pub.  L.  No.  1 1 1  -84,  §  574-89, 1 23  Stat. 
2190  (codified  at  42  U.S.C.  §§  19731T to  1973ff-2  (2006)). 

238.  155  CONG.  Rec.  SI  0682  (daily  ed.  Oct.  22, 2009)  (statement  of  Sen.  Charles  Schumer). 

239.  42  U.S.C.  §  1973ff-l(a). 

240.  Id.  §  1973ff-2A.  The  Secretary  of  Defense  has  delegated  its  responsibilities  under 
UOCAVA,  as  amended  by  MOVE,  to  the  Federal  Voting  Assistance  Program.  Federal  Voting 
Assistance  Program,  http://www.fvap.gov/  (last  updated  Sept.  24,  2010);  The  Uniformed  and 
Overseas    Citizens    Absentee    Voting    Act,    U.S.    Dep't    OF    JUSTICE,    http://www.justice. 


144  INDIANA  LAW  REVIEW  [Vol.  44: 1 13 


There  are  very  few  reported  decisions  involving  UOCAVA,241  although  that 
may  change  with  the  imposition  of  new  responsibilities  on  the  states  through  the 
MOVE  Act.  Of  those  decisions,  none  expressly  addressed  whether  UOCAVA 
is  privately  enforceable.  One  of  the  most  prominent  UOCAVA  cases  was 
brought  by  George  W.  Bush,  Dick  Cheney,  and  the  Florida  Republican  Party 
during  the  dispute  over  the  outcome  of  Florida's  2000  presidential  contest.  In 
Bush  v.  Hillsborough  County  Canvassing  Board,242  the  plaintiffs  challenged 
various  Florida  counties'  refusal  to  accept  ballots  from  overseas  and  military 
voters  that  were  unpostmarked,  had  illegible  postmarks,  or  were  postmarked  after 
election  day.243  Without  addressing  whether  the  private  plaintiffs  were  entitled 
to  enforce  UOCAVA,  the  court  found  that  some  of  the  counties'  practices 
violated  the  MOVE  Act  and  granted  declaratory  relief.244  The  failure  to  discuss 
the  private  right  of  action  issue  is  surprising,  given  that  candidates  Bush  and 
Cheney  were  plaintiffs  in  the  case.245  While  individual  voters  who  are  denied 
relief  might  well  meet  the  standard  for  implied  or  §  1983  rights  of  action,246  it  is 
difficult  to  imagine  how  a  candidate  could  do  so.  Perhaps  the  inclusion  of  the 
Florida  Republican  Party — which  undoubtedly  included  members  whose  rights 
under  UOCAVA  were  allegedly  violated — made  it  unnecessary,  in  the  view  of 
the  court  and  the  litigants,  to  consider  whether  candidates  Bush  and  Cheney  had 
aright  of  action.247 

The  question  whether  there  is  a  private  right  of  action  to  enforce  UOCAVA 
did  arise  in  United  States  v.  Cunningham,  a  case  challenging  Virginia  officials' 
alleged  failure  to  comply  with  the  statute,  brought  the  day  before  the  2008 


gov/crt/voting/misc/activ_uoc.php  (last  visited  Sept.  29,  2010). 

24 1 .  For  a  description  of  those  few  cases,  see  Buckman,  supra  note  225 .  A  few  of  those  cases 
involve  challenges  to  UOCAVA's  constitutionality — all  of  them  unsuccessful.  See,  e.g.,  Romeu 
v.  Cohen,  265  F.3d  1 18  (2d  Cir.  2001);  Igartua  de  la  Rosa  v.  United  States,  107  F.  Supp.  2d  140 
(D.P.R.  2000);  Howard  v.  State  Admin.  Bd.  of  Election  Laws,  976  F.  Supp.  350  (D.  Md.  1996), 
affd,  122  F.3d  1061  (4th  Cir.  1997).  Others  involve  cases  in  which  compliance  with  UOCAVA 
was  asserted  as  a  defense  to  a  claim  under  another  law.  See,  e.g.,  Casarez  v.  Val  Verde  Cnty.,  957 
F.  Supp.  847  (W.D.  Tex.  1997);  N.J.  Democratic  Party,  Inc.  v.  Samson,  814  A.2d  1028  (N.J.  2002). 

242.  123  F.  Supp.  2d  1305  (N.D.  Fla.  2000). 

243.  Mat  1306. 

244.  Mat  1317. 

245.  Id.  at  1306. 

246.  My  research  has  located  only  one  other  decision,  an  unreported  one,  in  which  voters  were 
allowed  to  assert  claims  under  UOCAVA.  See  Reitz  v.  Rendell,  No.  104-CV-2360,  2004  WL 
2451454  (M.D.  Pa.  Oct.  29,  2004).  As  in  Hillsborough  County,  there  was  no  discussion  of  the 
private  right  of  action  issue.  Id. 

247.  There  is  also  a  question  of  whether  plaintiffs  in  this  case  had  standing.  For  a  discussion 
of  a  similar  question  in  the  Bush  v.  Gore  litigation,  see  Erwin  Chemerinsky,  Bush  v.  Gore  Was  Not 
Justiciable,76NOTREDAMEL.REV.  1093, 1097-1 102  (2001)  (arguing  that  Bush  lacked  standing). 
But  see  Daniel  P.  Tokaji,  First  Amendment  Equal  Protection:  On  Discretion,  Inequality,  and 
Participation,  1 0 1  MICH.  L.  REV.  2409,  249 1  -92  (2003)  (suggesting  a  rationale  for  the  assumption 
that  Bush  had  standing  to  raise  the  claims  of  voters). 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 45 


presidential  election.248  As  originally  filed,  the  only  plaintiff  was  the  campaign 
committee  for  the  Republican  presidential  ticket.249  For  the  same  reason  that 
Bush  and  Cheney  lacked  a  right  of  action  in  2000,  it  is  highly  questionable  that 
the  McCain-Palin  campaign  had  a  private  right  of  action  to  enforce 
UOCAVA — even  assuming  that  a  right  of  action  would  lie  on  behalf  of  voters 
whose  rights  were  denied  by  Virginia's  failure  to  comply  with  the  statute.  In 
their  motion  to  dismiss,  defendants  argued  that  UOCAVA  did  not  create 
privately  enforceable  rights  and  that  the  express  provision  for  Attorney  General 
enforcement  should  be  understood  to  preclude  private  enforcement.250  Before 
that  motion  was  adjudicated,  the  United  States  government  intervened  in  the  case 
on  the  side  of  plaintiff.  The  district  court  subsequently  granted  the  United  States' 
motion  to  intervene  and  dismissed  the  McCain-Palin  campaign  as  a  plaintiff 
without  expressly  stating  its  reasons.251 

A  close  look  at  UOCAVA  reveals  that  the  question  of  the  statute's  private 
enforceability  is  a  murky  one.  Contrary  to  the  argument  made  by  the  state 
defendants  in  Cunningham,  the  fact  that  the  statute  expressly  provides  for 
Attorney  General  enforcement  does  not  necessarily  foreclose  a  private  right  of 
action.  Although  lower  federal  courts  have  accepted  a  similar  argument  in 
denying  a  right  of  action  under  §  1971,  that  is  flatly  inconsistent  with  the 
Supreme  Court's  tests  for  rights  of  action.  Nor  do  the  implementation 
responsibilities  given  to  the  Secretary  of  Defense  under  UOCAVA,  as  amended 
by  MOVE,  amount  to  a  comprehensive  enforcement  scheme  sufficient  to 
preclude  private  enforcement.  That  said,  the  current  doctrine  probably  would  not 
permit  implication  of  a  right  of  action  directly  under  UOCAVA,  as  there  appears 
to  be  no  evidence  that  Congress — either  in  1986  or  when  it  amended  the  statute 
in  2009 — intended  any  of  its  requirements  to  be  privately  enforceable. 

There  is  a  much  stronger  argument  that  certain  provisions  of  UOCAVA  are 
privately  enforceable  under  §  1983,  although  the  matter  is  hardly  free  from 
doubt.  Recall  that,  under  the  line  of  cases  culminating  with  Gonzaga,  private 
plaintiffs  must  show  that  Congress  intended  to  create  an  individual  right  (though 
not  necessarily  a  private  remedy)  in  order  to  sue  under  §  1983  for  violation  of  a 
federal  statute.     Several  provisions  of  UOCAVA  are  best  understood  as 


248.  United  States  v.  Cunningham,  No.  3:08CV709,  2009  WL  335028,  at  *1  (E.D.  Va.  Oct. 
15,  2009).  The  case  was  originally  filed  as  McCain-Palin  2008,  Inc.  v.  Cunningham,  but  changed 
to  United  States  v.  Cunningham,  after  the  United  States  intervened  as  a  plaintiff.  See  infra  notes 
249-51. 

249.  Complaint,  McCain-Palin 2008,  Inc.  v.  Cunningham, No.  3:08CV709  (E.D.  Va.  Nov.  3, 
2008),  available  at  http://moritzlawosu.edu/electionlaw/litigation/documents/McCain-Complaint- 
ll-3-08.pdf. 

250.  Memorandum  in  Support  of  Motion  to  Dismiss,  McCain-Palin  2008,  Inc.  v.  Cunningham, 
No.  3:08CV709  (E.D.  Va.  Nov.  6,  2008),  available  at  http://moritzlaw.osu.edu/electionlaw/ 
litigation/documents/McCain-Memo  1-11  -6-08.pdf. 

251.  Order  at  1-2,  McCain-Palin,  2008,  Inc.  v.  Cunningham,  No.  3:08cv709  (E.D.  Va.  Nov. 
17, 2008),  available  at  http://moritzlaw.osu.edu/electionlaw/litigation/documents/McCain-order- 
ll-17-08.pdf. 


146  INDIANA  LAW  REVIEW  [Vol.  44: 1 13 

conferring  an  individual  right  against  state  officials.    Among  them  are  the 
requirements  that  states: 

•  "permit  absent  uniformed  services  voters  and  overseas  voters  to  use 
absentee  registration  procedures  and  to  vote  by  absentee  ballot"  in 
federal  elections,252 

•  "accept  and  process  .  .  .  any  otherwise  valid  voter  registration 
application  and  absentee  ballot  application  from  an  absent 
uniformed  services  voter  or  overseas  voter"  if  received  not  less  than 
thirty  days  before  a  federal  election,253 

•  "permit  absent  uniformed  services  voters  and  overseas  voters  to  use 
Federal  write-in  absentee  ballots"  in  federal  elections, 

•  "transmit  a  validly  requested  absentee  ballot  to  an  absent  uniformed 
services  voter  or  overseas  voter . . .  not  later  than  45  days  before  the 
election,"  so  long  as  the  request  is  received  before  then,254  and 

•  establish  procedures  that  "shall  ensure  that  the  privacy  of  the 
identity  and  other  personal  data"  of  uniformed  and  overseas  voters 
is  protected.255 

The  conclusion  that  these  and  similarly  worded  provisions  of  UOCAVA  are 
privately  enforceable  is  strengthened  by  language  in  the  statute  confirming  that 
Congress  thought  it  was  conferring  rights  on  uniformed  and  overseas  voters: 
"The  exercise  of  any  right  under  this  subchapter  shall  not  affect,  for  purposes  of 
any  Federal,  State,  or  local  tax,  the  residence  or  domicile  of  a  person  exercising 
such  right."256  This  makes  it  quite  clear  and  unambiguous  that  at  least  some 
provisions  of  UOCAVA  confer  rights.  Under  Gonzaga,  the  existence  of  rights- 
creating  language  creates  a  presumption  of  §  1983  enforceability  and,  given  the 
absence  of  a  "comprehensive  enforcement  scheme  that  is  incompatible  with 
individual  enforcement,"257  it  is  unlikely  that  the  state  can  rebut  that  presumption. 
On  the  other  hand,  other  provisions  of  UOCAVA  appear  to  lack  the  sort  of 
rights-creating  language  that  Gonzaga  demands.  For  example,  UOCAVA' s 
requirements  that  states  "establish  procedures"  for  transmitting  absentee 
ballots258  and  report  data  on  ballots  transmitted259  do  not  appear  to  confer  a  right 
upon  any  individual — much  less  do  so  "unambiguous [ly]"  as  Gonzaga' 's  test 
demands — even  though  these  requirements  are  undoubtedly  designed  to  benefit 
uniformed  and  overseas  voters. 


252.  42  U.S.C.  §  1973ff- 1(a)(1)  (2006). 

253.  Id.  §  1973ff- 1(a)(2). 

254.  Id.  §  1973ff-l(a)(8). 

255.  Id.  §  1973ff-l(e)(6)(B). 

256.  Id.  §  1973ff-5  (emphasis  added). 

257.  Blessing  v.  Freestone,  520  U.S.  329,  341  (1997). 

258.  42  U.S.C.  §  1973ff- 1(a)(7). 

259.  Id.  §  1973ff-l(a)(ll). 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 47 


C.  HAVA 

The  most  prominent  area  of  election  law  in  which  the  private-right-of-action 
question  has  arisen  is  the  enforcement  of  HAVA.  Passed  in  the  wake  of  the  2000 
election  meltdown,  HAVA  imposes  modest  but  important  requirements  on 
states.260  As  a  general  matter,  HAVA's  requirements  attempt  to  promote  the 
sometimes  competing  goals  of  access  and  integrity  or,  as  one  of  the  bill's  co- 
sponsors  put  it,  making  it  both  "easier  to  vote"  and  "harder  to  cheat."261  These 
requirements  can  be  broken  down  into  four  categories: 

1 .  Voting  Technology — HAVA  did  not  require  the  replacement  of  the  punch- 
card  voting  technology  that  proved  so  troublesome  in  2000.  In  fact,  it 
specifically  declined  to  require  jurisdictions  to  replace  their  existing 
equipment.262  HAVA  does,  however,  impose  some  basic  requirements  that  all 
voting  equipment  must  meet.  Among  the  requirements  are  that  voting  systems 
allow  voters  to  correct  errors  before  casting  their  ballots,  that  equipment  produce 
an  auditable  record,  that  they  be  accessible  to  people  with  disabilities,  and  that 
they  provide  alternate  language  accessibility.263 

2.  Statewide  Registration  Lists — Before  HAVA's  enactment,  registration 
lists  were  kept  at  the  local  level  (typically  the  county  or  municipal  level)  in  most 
states.264  HAVA  changed  this  by  requiring  every  state  that  requires  voter 
registration  to  have  "a  single,  uniform,  official,  centralized,  interactive 
computerized  statewide  voter  registration  list."265  This  list,  sometimes  referred 
to  as  a  "statewide  registration  database,"  must  contain  the  name  and  registration 
information  of  every  legally  registered  voter  in  the  state.  HAVA  contains  some 
specific  requirements  for  the  maintenance  of  these  lists,  including  requirements 
that  "duplicate  names  are  eliminated"  and  that  "only  voters  who  are  not 
registered  or  who  are  not  eligible  to  vote  are  removed."266  It  also  requires  that 
state  chief  election  officials  enter  into  agreements  with  state  motor  vehicle 
authorities  to  "match"  voter  registration  information  against  motor  vehicle 
records,  to  the  extent  required  to  verify  the  accuracy  of  information  on  voter 
registration  applications.267 

3.  Voter  Identification — Among  the  most  controversial  topics  to  have 
emerged  in  the  years  since  2000  is  whether  and  how  voters  should  be  required 
to  prove  their  identity  in  order  to  have  their  votes  counted.  HAVA  imposed  a 
limited  identification  requirement,  applicable  only  to  certain  voters — specifically, 


260.  Id.  §§  15301-15545  (2006  &  Supp.  2008). 

26 1 .  David  Nather,  Election  Overhaul  May  Have  to  Wait  in  Line  Behind  Other  'Crisis  'Issues, 
CQ  WKLY.,  July  27,  2002,  at  2034  (quoting  Rep.  Steny  Hoyer). 

262.  42U.S.C.  §  15481(c)(1). 

263.  Id.  §§  15481(a)(l)-(4). 

264.  Tokaji,  Voter  Registration  and  Election  Reform,  supra  note  32,  at  471 . 

265.  42U.S.C.  §  15483(a)(1)(A). 

266.  Id.  §§  15483(a)(2)(B)(ii)-(iii). 

267.  Id.  §  15483(a)(5)(B)(i). 


148  INDIANA  LAW  REVIEW  [Vol.  44: 1 13 


to  first-time  voters  who  register  by  mail.268  Those  voters  are  required  to  produce 
identifying  information,  though  it  need  not  be  in  the  form  of  photo  identification 
such  as  a  driver's  license.  Other  acceptable  forms  of  identification  include  utility 
bills,  bank  statements,  government  checks,  paychecks,  or  government  documents 
with  the  voter's  name  and  address.269 

4.  Provisional  Voting — Finally,  HAVA  requires  that  voters  be  permitted  to 
cast  a  provisional  ballot  if  their  names  do  not  appear  on  the  registration  list  or  if 
they  lack  required  identification.270  To  cast  a  provisional  ballot,  the  voter  must 
affirm  that  he  or  she  is  "a  registered  voter  in  the"  jurisdiction  and  "eligible  to 
vote  in  that  election."271  The  voter's  ballot  must  then  be  counted,  if  he  or  she  is 
determined  eligible  under  state  law.272  HAVA  also  prescribes,  in  general  terms, 
the  process  that  election  officials  are  supposed  to  follow  in  notifying  voters  that 
they  may  cast  a  provisional  ballot,  permitting  them  to  cast  such  ballot, 
transmitting  provisional  ballots  for  verification,  determining  whether  to  count  the 
ballot,  and  creating  a  procedure  for  notifying  voters  whether  their  ballot  has  been 
counted.273 

HAVA  is  silent  on  whether  any  of  its  requirements  are  privately  enforceable. 
If  we  take  seriously  Alexander's  statement  that  an  implied  right  of  action  requires 
evidence  of  a  congressional  intent  to  create  one  in  the  statute  itself,274  it  is  hard 
to  see  how  this  standard  could  be  met.  A  more  difficult  question  is  whether 
HAVA,  or  at  least  some  of  its  requirements,  may  be  enforced  under  §  1983. 
HAVA  expressly  allows  the  U.S.  Attorney  General  to  bring  suit  for  declaratory 
or  injunctive  relief,275  though  this  is  not  dispositive  of  whether  there  is  a  §  1983 
right  of  action.276  HAVA  also  requires  an  administrative  complaint  procedure  for 
those  who  believe  that  there  has  been  a  violation  of  the  statute.277  This,  however, 
falls  well  short  of  the  comprehensive  remedial  scheme  that  might  be  deemed  to 
demonstrate  a  congressional  intent  to  foreclose  a  private  judicial  remedy.278 
Under  the  HAVA-required  administrative  complaint  process,  states  are  required 
to  have  a  process  for  receiving  complaints  but  have  unreviewable  discretion  to 
dismiss  complaints  if  they  find  no  violation,  without  any  provision  for  judicial 
review.279  Even  in  cases  where  they  find  a  violation,  it  is  up  to  states  to 
determine  the  "appropriate  remedy,"  again  without  any  provision  for  judicial 


268.  Id.  §  15483(b)(1). 

269.  Id.  §  i5483(b)(2)(A)(i)(II). 

270.  Id.  §  15482(b)(2)(A)(i)(b)(2)(B). 

271.  Id.  §  15483(a)(2). 

272.  Id.  §  15483(a)(4). 

273.  Id.  §§  15483(a)(l)-(4). 

274.  See  supra  notes  144-48. 

275.  42U.S.C.  §  15511. 

276.  See  supra  Parts  II.A.  &  II.B. 

277.  42U.S.C.  §  15512. 

278.  See,  e.g.,  City  of  Rancho  Palos  Verdes  v.  Abrams,  544  U.S.  1 13,  121  (2005);  Middlesex 
Cnty.  Sewerage  Auth.  v.  Nat'l  Seal  Clammers  Ass'n,  453  U.S.  1,  13  (1981). 

279.  42  U.S.C.  §  15512(a)(2)(G). 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 49 


review.280  This  is  a  far  cry  from  the  sort  of  "comprehensive  enforcement 
mechanism[]"281  that  the  Court  has  required  to  foreclose  a  right  of  action  under 
§  1983.282 

The  legislative  history  of  HAVA  is  also  of  little  help  in  determining  whether 
its  requirements  may  be  privately  enforced.  There  is  only  one  statement  from  the 
floor  debate  expressly  addressing  the  subject.283  In  commenting  on  the 
Conference  Report  on  the  bill,  Senator  Chris  Dodd,  one  of  HAVA' s  co-sponsors, 
stated  that  he  "would  have  preferred  that  we  extend  the  private  right  of  action 
afforded  private  parties  under  [the  National  Voter  Registration  Act],"  but  that  the 
House  (at  that  time  controlled  by  Republicans)  "simply  would  not  entertain  such 
an  enforcement  provisions  [sic]."284  Assuming  that  this  statement  is  true,  it 
explains  why  there  is  no  express  private  right  of  action  in  HAVA,  but  it  tells  us 
nothing  about  whether  any  provisions  of  the  statute  creates  rights  enforceable 
under  §1983. 

Given  that  both  the  statutory  text  and  the  legislative  history  are  silent  on  the 
private  enforceability  of  HAVA's  obligations  under  §  1983,  it  is  no  surprise  that 
the  issue  has  found  its  way  into  court.  The  question  has  arisen  with  respect  to 
three  specific  requirements  of  HAVA:  (1)  that  provisional  ballots  be  provided 
to  certain  voters;  (2)  that  accessible  technology  be  made  available  for  people  with 
disabilities;  and  (3)  that  information  in  state  voter  registration  databases  be 
matched  against  other  records.  What  is  interesting  about  these  three  parts  of  the 
statute  is  that  they  can  be  placed  at  different  points  along  the  spectrum  in  terms 
of  their  creating  individual  rights  as  required  by  existing  doctrine.  The  first 
requirement  clearly  does  create  an  enforceable  right,  the  second  arguably  does 
so,  while  the  third  clearly  does  not  do  so. 

The  provision  of  HAVA  that  most  clearly  confers  an  individual  right,  thus 
satisfying  Gonzaga's  demanding  test,  is  the  requirement  that  certain  voters  be 
provided  with  provisional  ballots.  In  Sandusky  County  Democratic  Party  v. 
Blackwell,2*5  the  Sixth  Circuit  correctly  held  that  this  requirement  contains  the 
sort  of  rights-creating  language  necessary  for  private  enforceability  under  § 
1983.286  In  that  case,  a  local  party  organization  claimed  that  Ohio's  secretary  of 


280.  Id.  §  15512(a)(2)(F). 

28 1 .  See  Nat  7  Sea  Clammers  Ass  'n,  453  U.S.  at  20. 

282.  See  Wright  v.  City  of  Roanoke  Redevelopment  &  Hous.  Auth.,  479  U.S.  4 1 8, 425  ( 1 987) 
(refusing  to  find  congressional  intent  to  foreclose  §1983  remedy,  where  statute  lacked  a 
comprehensive  and  effective  private  remedy). 

283.  I  base  this  statement  on  a  Boolean  search  for  "('help  america  vote'  or  'election  reform') 
and  ('private  right'  or  'private  cause')"  in  LexisNexis's  "Congressional  Record  -  107th  Congress" 
database.  The  statements  by  Senator  Chris  Dodd  discussed  in  the  text  are  the  only  ones  on  the  topic 
of  private  rights  of  action  to  enforce  HAVA's  requirements. 

284.  148  CONG.  Rec.  SI 0508  (daily  ed.  Oct.  16,  2002)  (statement  of  Sen.  Dodd). 

285.  387  F.3d  565  (6th  Cir.  2004). 

286.  Id.  at  572-73.  Two  district  courts  have  reached  the  same  conclusion  on  HAVA's 
provisional  voting  requirement.  Citing  the  same  language  as  the  Sixth  Circuit,  the  court  in  Florida 
Democratic  Party  v.  Hood  concluded:     "The  relevant  section  of  HAVA  clearly  evinces  a 


1 50  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


state  was  in  violation  of  HAVA  by  refusing  to  issue  provisional  ballots  to  or 
count  the  ballots  of  voters  appearing  at  the  wrong  precinct.  After  reciting  the 
doctrine  articulated  in  the  line  of  cases  extending  through  Gonzaga,  the  Sixth 
Circuit  turned  to  the  language  of  HAVA's  provisional  voting  requirement, 
finding  that  its  "rights-creating  language  ...  is  unambiguous."287  The  court 
emphasized  that  HAVA's  language  refers  to  an  "individual"  being  permitted  to 
cast  a  provisional  ballot,  if  he  or  she  complies  with  certain  specific  criteria.288 
The  statutory  text  also  specifically  refers  to  the  "right  of  an  individual  to  cast  a 
provisional  ballot."289  This  language  is  similar  to  that  contained  in  Titles  VI290 
and  IX291  of  the  Civil  Rights  Act,  and  quite  unlike  that  at  issue  in  Gonzaga, 
which  referred  not  to  individuals  but  instead  to  programmatic  requirements.292 
As  the  Sixth  Circuit's  opinion  suggests,  this  is  a  relatively  easy  case,  even  under 
the  stringent  test  that  now  exists  for  private  enforcement  under  §  1983.293 
Congress  explicitly  conferred  an  individual  right  to  a  provisional  ballot  on  certain 
voters,  and  there  is  no  comprehensive  remedial  scheme  that  would  overcome  the 
presumption  that  a  private  right  of  action  lies. 

A  more  difficult  question  is  whether  HAVA's  disability  access  mandate  is 
privately  enforceable  under  §  1983.  HAVA  requires  that  voting  systems  be 
"accessible  to  individuals  with  disabilities,"  specifically  mandating  that  states 
provide  access  for  visually  impaired  voters  so  that  they  will  have  the  "same 
opportunity  for  access  and  participation  (including  privacy  and  independence) 
as  for  other  voters."294  Although  the  statute  does  not  use  the  word  "right,"  there 
is  no  doubt  at  all  about  what  individuals  this  requirement  is  designed  to  benefit, 
and  the  statute  even  refers  to  those  specific  individuals.295  Is  this  enough  to 
satisfy  Gonzaga's  requirement  that  there  be  an  unambiguously  conferred 
individual  right  in  order  to  sue  under  §  1983?  There  is  little  precedent  on  this 
question,  though  two  district  courts  have  answered  the  question  in  the  negative.296 


congressional  intention  to  create  a  federal  right."  342  F.  Supp.  2d  1073,  1078  (N.D.  Fla.  2004). 
The  district  court  in  Bay  County  Democratic  Party  v.  Land  likewise  held  that  this  section  contains 
the  "type  of  unmistakable  rights-focused  language  that  the  Supreme  Court  has"  required  for  a  § 
1983  claim.  347  F.  Supp.  2d  404,  426  (E.D.  Mich.  2004). 

287.  Sandusky  Cnty.  Democratic  Party,  387F.3dat572. 

288.  Id.  at  574. 

289.  Id.  at  573  (quoting  42  U.S.C.  §  15482(b)(2)(E)  (2006))  (emphasis  omitted). 

290.  42  U.S.C.  §  2000d  (using  the  language  "[n]o  person"  to  confer  individual  rights). 

291.  20  U.S.C.  §  1681  (using  the  language  "[n]o  person"  to  confer  individual  rights). 

292.  See  supra  notes  1 83-89. 

293.  In  saying  this  is  an  easy  case,  I  am  referring  only  to  the  conclusion  that  there  is  a  private 
right  of  action.  On  the  merits,  the  Sixth  Circuit  concluded  that  voters  were  entitled  to  cast  a 
provisional  ballot  if  they  affirmed  that  they  were  eligible  and  registered  to  vote,  but  that  these 
provisional  ballots  need  not  be  counted  if  voters  appeared  in  the  wrong  precinct.  Sandusky  Cnty. 
Democratic  Party,  387  F.3d  at  574-79. 

294.  42  U.S.C.  §  15481(a)(3)(A). 

295.  See  id. 

296.  See  Taylor  v.  Onorato,  428  F.  Supp.  2d  384,  386  (W.D.  Pa.  2006);  Paralyzed  Veterans 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 5 1 


One  of  those  decisions,  Taylor  v.  Onorato291  applied  the  wrong  legal  test.  In 
denying  plaintiffs  relief,  the  court  stated:  "Nowhere  in  [HAVA]  .  .  .  does 
Congress  indicate  an  intention  that . . .  [its  voting  equipment  requirements]  may 
be  enforced  by  private  individuals."298  But  as  I  have  explained,  that  is  not  the 
appropriate  test  for  rights  of  action  under  §  1983,  for  which  plaintiffs  are  not 
required  to  demonstrate  that  Congress  intended  to  create  a  private  remedy  but 
rather  to  show  that  it  created  an  individual  right. 

The  other  disability  access  decision,  Paralyzed  Veterans  of  America  v. 
McPherson299  is  more  careful  in  its  analysis,  though  it  reaches  the  same 
conclusion.300  After  considering  and  rejecting  the  argument  that  Gonzaga  only 
applies  to  statutes  enacted  under  the  Spending  Clause,  the  Paralyzed  Veterans 
court  considered  whether  HAVA' s  disability  access  requirement  unambiguously 
conferred  an  individual  right.301  The  court  acknowledged  the  question  to  be  a 
close  and  difficult  one  and  found  that  Congress  had  not  "expressly  or  impliedly" 
shut  the  door  on  §  1983  enforcement.302  It  also  found  that,  given  HAVA's 
relatively  clear  mandate  on  disability  access,  private  enforcement  of  this 
requirement  would  not  "strain  judicial  competence."303  The  court  nevertheless 
held  that  this  requirement  was  not  enforceable  under  §  1983  due  to  the  absence 
of  unambiguous  rights-creating  language.304  As  applied  by  the  court  in  Paralyzed 
Veterans,  then,  Gonzaga  is  a  highly  formalistic  test.  If  the  statute  uses  the  term 
"right,"  then  it  is  presumptively  enforceable  under  §  1983;  if  not,  it  is 
presumptively  unenforceable — even  if,  as  with  HAVA's  disability  access 
requirements,  it  is  very  clear  whom  the  statute  is  designed  to  benefit.  This  is  a 
defensible,  though  debatable,  understanding  of  Gonzaga' s  test.  The  alternative 
understanding  is  that  a  statutory  requirement  is  presumptively  enforceable  under 
§  1983  so  long  as  it  is  clear  that  Congress  intended  to  protect  a  particular  class 
of  individuals.  Measured  by  this  less  formalistic,  more  functional  standard, 
HAVA's  disability  access  requirement  would  be  privately  enforceable. 

The  third  provision  of  HAVA  on  which  the  question  of  private  enforceability 
has  arisen  concerns  the  "matching"  of  information  in  statewide  registration 
databases  against  motor  vehicle  records.  It  was  this  provision  that  was  at  issue 
in  the  Supreme  Court's  brief  per  curiam  opinion  in  Brunner  v.  Ohio  Republican 
Party.305  In  that  case,  the  Ohio  Republican  Party  claimed  that  Ohio's  Democratic 
secretary  of  state  was  not  matching  voter  registration  information  for  new 


of  Am.  v.  McPherson,  No.  C06-4670,  2006  WL  3462780,  at  *10  (N.D.  Cal.  Nov.  28,  2006). 

297.  Taylor,  428  F.  Supp.  2d  384. 

298.  Mat 386. 

299.  Paralyzed  Veterans,  2006  WL  3462780. 

300.  Mat*  10. 

301.  Mat*8. 

302.  Id.  at  *9. 

303.  Id.  at  HO. 

304.  Id. 

305.  129  S.  Ct.  5,  6  (2008)  (per  curiam). 


1 52  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


registrants,  as  the  statute  requires.306  The  relevant  provision  of  HAVA  reads  as 
follows: 

The  chief  State  election  official  and  the  official  responsible  for  the  State 
motor  vehicle  authority  of  a  State  shall  enter  into  an  agreement  to  match 
information  in  the  database  of  the  statewide  voter  registration  system 
with  information  in  the  database  of  the  motor  vehicle  authority  to  the 
extent  required  to  enable  each  such  official  to  verify  the  accuracy  of  the 
information  provided  on  applications  for  voter  registration.307 

It  is  difficult  to  see  how  this  language  confers  an  individual  right  upon 
anyone,  much  less  how  it  does  so  "unambiguously"  as  Gonzaga  requires.  That 
is  true  whether  one  embraces  a  formalistic  or  functional  understanding  of 
Gonzaga.  Not  only  does  the  statutory  language  avoid  the  term  "right,"  but  the 
statute  does  not  benefit  any  specific  class  of  individuals.  It  simply  requires 
election  officials  to  enter  into  matching  agreements  with  their  states'  motor 
vehicle  authorities,  to  the  extent  required  to  verify  accuracy.  Even  putting  aside 
the  fact  that  the  statute  mandates  only  an  agreement — and  not,  at  least  explicitly, 
the  actual  matching  of  voters — the  statute  is  aimed  at  ensuring  that  voter 
registration  information  is  accurate.  There  is  no  express  indication  of  whom  this 
provision  is  designed  to  benefit.  In  fact,  the  provision  is  aimed  not  at  protecting 
any  specific  individuals,  but  rather  at  protecting  the  integrity  of  the  system,  by 
preventing  voters  from  registering  with  false  or  inaccurate  information.  This 
requirement  might  well  protect  the  public  at  large,  by  preventing  voting  by 
people  who  are  not  eligible  (because  they  are  disenfranchised  felons  or 
noncitizens,  for  example)  and  by  preventing  double-voting.  But  it  does  not 
unambiguously  confer  a  right  upon  anyone,  as  Gonzaga  demands. 

Nevertheless,  and  quite  remarkably,  the  lower  courts  found  that  the  Ohio 
Republican  Party  had  a  right  to  sue  under  §  1983  to  enforce  HAVA's  matching 
requirement.308  The  district  court  found  there  to  be  a  private  right  of  action  and 
issued  a  temporary  restraining  order  against  the  Ohio  secretary  of  state.309  Its 
cursory  analysis  failed  even  to  consider  whether  this  provision  unambiguously 
conferred  an  individual  right.  Instead,  the  court  relied  on  Sandusky  County 
Democratic  Party's  conclusion  that  the  provisional  voting  requirement  was 
privately  enforceable,  noting  that  there  was  no  indication  that  Congress  intended 
to  close  the  door  to  private  litigation.310  This  misses  the  predicate  question  of 
whether  the  matching  provision  unambiguously  confers  an  individual  right. 

A  three-judge  panel  subsequently  vacated  the  district  court's  order  on  the 


306.  Id. 

307.  42  U.S.C.  §  15483(a)(5)(B)(i)  (2006). 

308.  Ohio  Republican  Party  v.  Brunner,  582  F.  Supp.  2d  957, 962  (S.D.  Ohio),  aff'd,  544  F.3d 
71 1  (6th  Cir.)  (en  banc),  vacated,  129  S.  Ct.  5  (2008)  (per  curiam). 

309.  Ohio  Republican  Party,  582  F.  Supp.  2d  at  966. 

3 1 0.  Id.  at  962  (citing  Sandusky  Cnty.  Democratic  Party  v.  Blackwell,  387  F.3d  565,  572  (6th 
Cir.  2004)). 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 53 


merits,31 1  but  the  en  banc  Sixth  Circuit  reversed  and  reinstated  the  district  court's 
decision.312  Judge  Sutton's  opinion  for  a  majority  of  the  en  banc  court  recites  the 
existing  test,  acknowledging  that  Gonzaga  requires  an  "unambiguously 
conferred"  right.313  There  is  nothing  in  the  above-quoted  language  that  comes 
close  to  conferring  a  right  on  any  individual,  much  less  does  so 
"unambiguously" — and  the  en  banc  majority  did  not  really  argue  to  the  contrary. 
Instead,  the  en  banc  court  upheld  the  district  court's  order  on  the  ground  that,  in 
this  case,  there  is  no  individual  to  whom  rights-creating  language  could 
conceivably  apply.314  As  the  court  put  it,  this  provision  is  one  that  "effectively 
benefits  everyone  but  no  one  in  particular."315  Accordingly,  Judge  Sutton's 
majority  opinion  understood  the  Gonzaga  test  not  to  apply  to  this  sort  of  case. 
Whatever  the  advantages  of  this  mode  of  analysis,  it  is  not  consistent  with 
Gonzaga,  which  is  quite  explicit  in  requiring  that  the  relevant  statute 
unambiguously  confer  a  federal  right.316  Judge  Moore  convincingly  made  this 
point  in  her  dissent  from  the  en  banc  decision,  noting  that  there  is  "absolutely  no 
rights-creating  language"  in  HAVA's  matching  statute.317  As  she  rightly 
concluded,  this  was  an  easy  case  under  Gonzaga' s  demanding  standard — one  that 
the  district  court  had  clearly  gotten  wrong. 

Although  the  en  banc  majority  characterized  the  question  before  it  as  a 
"close"  one,318  it  really  was  nothing  of  the  sort.  The  conclusion  that  there  is  a 
private  right  of  action  to  enforce  the  matching  requirement  is  not  defensible 
under  Gonzaga.  In  this  respect,  the  issue  before  the  Supreme  Court  in  Brunner 
was  quite  straightforward.  The  Court  reversed  the  Sixth  Circuit  in  a  one- 
paragraph  order,  addressing  the  private-right-of-action  issue  in  a  single  sentence: 
"Respondents,  however,  are  not  sufficiently  likely  to  prevail  on  the  question 
whether  Congress  has  authorized  the  District  Court  to  enforce  Section  303  [of 
HAVA]  in  an  action  brought  by  a  private  litigant  to  justify  the  issuance  of  a 
TRO."319  Given  the  absence  of  an  unambiguously  conferred  right  in  HAVA's 
matching  provision,  this  conclusion  is  undeniably  correct  under  existing  law. 

The  problem  is  that  existing  doctrine  is  wrong,  at  least  when  it  comes  to 
disputes  implicating  the  electoral  process.  That  doctrine  misses  the  fact  that 
electoral  disputes  implicate  a  different  sort  of  interest  than  classic  individual- 
rights  cases.  As  Judge  Sutton's  en  banc  opinion  recognized,  they  involve 
quintessentiaHy/?w6//c  rights.320  Existing  private-right-of-action  doctrine  fails  to 


311.  Ohio  Republican  Party,  544  F.3d  at  7 1 5 . 

312.  Mat  720-21. 

313.  Id.  at  720  (quoting  Gonzaga  Univ.  v.  Doe,  536  U.S.  273,  283  (2002)). 

314.  Id. 

315.  Id. 

316.  Gonzaga  Univ.  v.  Doe,  536  U.S.  273,  283  (2002). 

317.  Ohio  Republican  Party,  544  F.3d  at  727  (Moore,  J.,  dissenting). 

318.  Mat  719. 

319.  Brunner  v.  Ohio  Republican  Party,  129  S.  Ct.  5,  6  (2008)  (per  curiam)  (citing  Gonzaga 
Univ.,  536  U.S.  at  283);  Alexander  v.  Sandoval,  532  U.S.  275,  286  (2001). 

320.  Ohio  Republican  Party,  544  F.3d  at  720. 


1 54  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


recognize  such  non-individuated  or  collective  rights.  But  as  I  shall  now  argue, 
it  should. 

IV.   Public  Rights  in  Federal  Election  Law 

To  this  point,  I  have  focused  on  the  explanation  and  application  of  existing 
doctrine  on  private  rights  of  action.  As  explained  in  Part  II,  Gonzaga  forbids 
private  enforcement  of  federal  statutes  through  §  1983  absent  an  unambiguously 
conferred  individual  right.  As  explained  in  Part  III,  the  Sixth  Circuit  failed  to 
apply  this  doctrine  in  Ohio  Republican  Party  v.  Brunner.  In  this  Part,  I  turn  from 
application  of  existing  doctrine  to  a  critique  of  that  doctrine,  arguing  that  existing 
private-right-of-action  doctrine  fails  to  account  for  the  vital  role  that  federal 
courts  play  in  overseeing  U.S.  election  administration. 

There  is  both  a  conceptual  and  practical  dimension  to  the  institutional  role 
of  federal  courts  when  it  comes  to  elections  and,  accordingly,  to  the  problems 
with  applying  the  existing  test  for  private  rights  of  action  to  cases  arising  in  this 
area.  Conceptually,  election  cases  typically  involve  non-individuated  harms. 
Brunner  is  a  perfect  example.  The  harms  that  would  arise  from  a  failure  to 
comply  with  HAVA's  matching  procedures  were  not  ones  that  would  flow  to  any 
identifiable  individual.  They  were  instead  injuries  that  could  only  be  understood 
though  their  aggregate  effect  on  voters  and,  more  broadly,  on  the  electoral  system 
as  a  whole.  This  is  what  Judge  Sutton's  opinion  for  the  en  banc  majority  was 
getting  at,  in  referring  to  HAVA's  matching  requirement  as  one  that  "effectively 
benefits  everyone  but  no  one  in  particular."321  That  requirement  is  designed  to 
prevent  the  systematic  skewing  of  elections,  which  might  occur  if  ineligible 
people  were  to  register  and  vote.  While  some  commentators — myself 
included — believe  those  risks  are  greatly  exaggerated,  Judge  Sutton  was  correct 
to  recognize  that  the  interests  protected  by  HAVA's  matching  requirement 
cannot  readily  be  conceptualized  in  individualistic  terms.322  This  requirement  is 
instead  aimed  at  diffused  harms  that  arise  from  the  aggregate  nature  of  the  right 
to  vote,  the  fact  that  each  person's  vote  becomes  meaningful  only  when  joined 
with  those  of  like-minded  others.323 

In  this  sense,  the  interest  at  stake  in  Brunner  is  typical  of  election  cases, 
which  tend  to  involve  systemic  rather  than  merely  atomistic  injuries.324  The  real 
problem  is  not  (or  at  least  not  just)  the  harm  to  individual  voters,  but  rather  the 
risk  that  an  electoral  law  or  practice  will  disproportionately  harm  certain  groups 
of  voters,  thereby  threatening  to  skew  electoral  outcomes  and,  more  broadly,  the 
distribution  of  political  power.  It  is  in  this  sense  that  the  interests  protected  by 


321.  Id. 

322.  See  supra  note  3 1 1  and  accompanying  text. 

323.  See  Heather  K.  Gerken,  Understanding  the  Right  to  an  Undiluted  Vote,  1 14  HARV.  L. 
Rev.  1663(2001). 

324.  Saul  Zipkin  makes  a  similar  point  in  a  forthcoming  article,  arguing  that  the  "structural" 
harms  typically  at  stake  in  election  cases  call  for  a  modified  standing  inquiry.  Zipkin,  supra  note 
10  (manuscript  at  5). 


2010]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  155 


statutes  like  HAVA  are  best  conceived  as  public  rights.  They  belong  to  groups 
of  citizens  and  to  the  larger  public  rather  than  to  specific,  identifiable 
individuals.325  The  idea  that  there  must  be  an  individual  right,  as  Gonzaga 
demands,  therefore  misses  the  main  interest  that  is  typically  at  stake  in  election 
disputes.326  The  en  banc  majority  in  Ohio  Republican  Party  v.  Brunner321  was 
right  to  recognize  that  the  statute  was  aimed  at  protecting  such  rights.  Its  error 
was  in  thinking  that  existing  doctrine  allows  for  them  to  be  considered. 

Brunner  provides  a  particularly  salient  example  of  a  federal  statute  protecting 
a  public  right,  given  that  the  harm  of  which  the  Ohio  Republican  Party 
complained  could  not  readily  be  understood  in  individual  terms.328  But  it  is  not 
an  isolated  case.  Other  federal  statutory  requirements  also  protect  group  or 
collective  interests,  even  though  they  may  protect  individual  interests  as  well. 
Examples  include  each  of  the  federal  statutes  discussed  in  Part  III.  As  I  have 
explained,  §  1 97  l's  qualification  and  registration  requirements  can  be  understood 
as  protecting  the  individual  right  to  equal  treatment.329  Accordingly,  there  is  a 
strong  argument  that  these  requirements  are  privately  enforceable,  even  under  the 
Gonzaga  test.  But  these  requirements  do  more  than  protect  the  individual  right 
to  vote;  they  also  prevent  systematic  exclusion  of  certain  groups  of  voters, 
including  racial  minorities,  students,  and  women.330  So  too,  UOCAVA  does  not 
merely  protect  the  individual  right  to  vote  for  uniformed  and  overseas  voters,  but 
prevents  the  systemic  harm  that  would  arise  if  these  groups  of  voters  were 
disproportionately  excluded.  Even  provisions  that  are  not  clearly  targeted  to  any 
specific  individuals — such  as  UOCAVA 's  data  collection  provision — serve  the 
collective  interest  of  promoting  a  more  fair  and  inclusive  electoral  process. 

HAVA' s  various  requirements  likewise  promote  a  fair  electoral  process,  one 
that  does  not  systematically  skew  elections  for  or  against  certain  groups  of 
voters.  An  example  is  HAVA's  mandate  that  states  ensure  that  "only  voters  who 
are  not  registered  or  who  are  not  eligible  to  vote  are  removed."331  In  addition  to 
protecting  individuals  from  being  wrongfully  purged,  this  requirement  prevents 
the  systemic  unfairness  that  may  result  from  the  disproportionate  removal  of 
certain  groups  of  voters — like  racial  minorities  or  college  students — from  the 


325.  In  arguing  for  private  enforcement  of  public  rights,  I  disagree  with  Professor  Sunstein, 
who  has  argued  that  statutes  protecting  collective  interests  should  generally  not  be  privately 
enforceable.  Sunstein,  supra  note  87,  at  435-36.  Although  not  focused  on  election  statutes, 
Professor  Sunstein  argued  that  "[cjollective  benefits  are  more  often,  and  sometimes  more 
appropriately,  protected  through  public  enforcement  mechanisms  than  through  private  remedies." 
Id.  at  435.  This  argument  may  have  some  currency  with  respect  to  statutes  protecting  other 
collective  interests,  but  it  has  very  little  in  the  election-law  context,  for  the  reasons  set  forth  in  the 
text  below. 

326.  Gonzaga  Univ.  v.  Doe,  536  U.S.  273  (2002). 

327.  544  F.3d  711  (6th  Cir.)  (en  banc),  vacated,  129  S.  Ct.  5  (2008). 

328.  Id.  at  720. 

329.  42U.S.C.  §  1971(2006). 

330.  See  supra  note  216  and  accompanying  text. 

331.  42  U.S.C.  §  15483(a)(2)(B)(ii). 


156  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


rolls. 

The  idea  that  election  laws  protect  collective  as  well  as  individual  interests 
is,  of  course,  a  familiar  one.  It  recalls  the  long-running  debate  among  election 
law  scholars  over  whether  judicial  review  should  focus  on  the  protection  of 
individual  rights  or  the  promotion  of  a  fair  democratic  structure.332  Structuralists 
have  tended  to  focus  on  the  collective  interest  in  a  fair  democratic  process,  which 
I  have  called  public  rights,  while  proponents  of  the  rights-based  perspective  have 
tended  to  focus  on  individual  interests.  Even  if  one  takes  a  rights-based  view  of 
judicial  review,  however,  that  does  not  preclude  the  recognition  of  public  rights 
as  a  basis  for  private  enforcement  of  federal  election  statutes.333  Whatever  one's 
perspective  on  the  appropriate  role  of  courts  in  constitutional  cases,  it  must  be 
acknowledged  that,  when  Congress  enacts  laws  regulating  the  democratic 
process,  those  statutes  sometimes  protect  collective  interests  as  well  as  individual 
ones.  The  doctrine  on  private  rights  of  actions  should,  accordingly,  allow 
litigants  to  sue  under  §  1983  where  a  statute  protects  such  public  rights,  and  not 
just  when  it  protects  the  individual  right  to  vote.  One  need  not  be  a  structuralist 
to  support  the  broad  enforceability  of  election  statutes,  whether  they  protect 
individual  or  collective  interests. 

I  have  thus  far  explained  why  applying  the  Gonzaga  test  for  private  rights  of 
action  to  election  law  cases  is  problematic  on  a  conceptual  level — namely, 
because  this  test  fails  to  recognize  that  election  statutes  often  confer  public  rights 
rather  than  just  private  or  individual  rights.  But  there  is  also  a  practical 
dimension  to  the  problem,  which  concerns  the  unfortunate  consequences  that 
arise  from  applying  the  stringent  test  for  private  enforcement  to  election  disputes. 
The  Gonzaga  test  does  not  simply  require  that  the  federal  statute  protect  an 
individual  right;  it  also  requires  that  the  right  be  unambiguously  conferred.334  At 
least  some  courts  have  interpreted  this  requirement  quite  formalistically,  as 
demanding  that  the  statute  use  the  word  "right"  (or  some  close  approximation), 
as  in  the  cases  denying  private  enforcement  of  HAVA's  disability  access 
requirements. 

The  practical  problem  with  applying  such  a  demanding  test  to  election 
statutes  relates  to  the  vital  role  that  federal  courts  now  play  in  overseeing 


332.  Sam  Issacharoff  and  Rick  Pildes  are  the  leading  proponents  of  the  structural  perspective, 
arguing  that  democratic  politics  be  thought  of  as  a  sort  of  marketplace,  with  courts  intervening  to 
promote  robust  political  competition.  See  Samuel  Issacharoff  &  Richard  H.  Pildes,  Politics  As 
Markets:  Partisan  Lockups  of  the  Democratic  Process,  50  STAN.  L.  REV.  643  ( 1 998).  On  the  other 
side  of  the  debate,  Rick  Hasen  argues  that  courts  should  focus  on  promoting  equality  rights,  rather 
than  focusing  on  structural  concerns,  in  determining  when  to  intervene  in  democratic  politics. 
Richard  L.  Hasen,  The  Supreme  Court  and  Election  Law:  Judging  Equality  from  Baker 
v.  Carr  to  Bush  v.  Gore  138-56  (2003). 

333.  The  conception  of  equality  that  Professor  Hasen  advances  includes  a  "collective  action" 
principle,  prohibiting  unreasonable  barriers  to  groups  organizing  politically.  Hasen,  supra  note 
332,  at  88.  This  maybe  capacious  enough  to  accommodate  the  non-individuated  interests  protected 
by  statutes  like  HAVA. 

334.  Gonzaga  Univ.  v.  Doe,  536  U.S.  273,  282  (2002). 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 57 


American  election  administration,  as  described  in  Part  I.  Without  a  strong  central 
election  authority  (as  in  India335)  or  a  formal  role  for  the  judiciary  in  running 
elections  (as  in  France336),  the  administration  of  U.S.  elections  is  largely  in  the 
hands  of  party-affiliated  election  officials  at  the  state  and  local  level.  Since 
2000,  federal  courts  have  quite  properly  played  a  more  active  role  in  policing 
election  administration,  sometimes  through  constitutional  adjudication  and  at 
other  times  through  the  enforcement  of  federal  statutes.  Without  a  private  right 
of  action,  interpretation  and  implementation  of  federal  election  harms  is  left  to 
the  discretion  of  state  and  local  election  officials,  many  of  whom  have  a  conflict 
of  interest  because  they  are  affiliated  with  political  parties  or  elected  to  office. 
The  only  federal  entity  with  the  power  to  enforce  those  laws  would  be  the  U.S. 
Department  of  Justice  (DOJ),  which  has  a  checkered  history  when  it  comes  to  the 
evenhanded  enforcement  of  election  statutes.337  Leaving  DOJ  as  the  sole 
gatekeeper  to  the  federal  courts  also  tends  to  impede  efforts  to  obtain 
authoritative  clarification  of  ambiguous  statutes  such  as  HAVA,  given  the 
absence  of  a  federal  agency  empowered  to  promulgate  binding  regulations.  It 
also  raises  the  possibility  that  federal  election  laws  will  be  enforced  only,  or  at 
least  predominantly,  in  those  instances  where  doing  so  will  benefit  the 
President's  party.  Allowing  a  private  right  of  action  thus  provides  a  check  on 
potential  partisanship  by  DOJ,  as  well  as  state  and  local  election  officials. 

It  is  certainly  true  that  in  some  areas  of  law,  allowing  a  private  right  of  action 
might  impede  consistent  implementation  of  federal  law.338  That  is  especially  true 
where  Congress  has  created  an  administrative  agency  with  interpretive  or 
enforcement  authority.  For  better  or  for  worse,  that  is  not  a  problem  with  respect 
to  the  federal  election  statutes  discussed  in  Part  III,  particularly  HAVA,  given  the 
absence  of  an  administrative  agency  with  the  power  to  issue  binding 
interpretations  of  law.  In  fact,  Congress  specifically  denied  the  EAC  regulatory 
authority  (outside  of  one  narrow  area)  when  it  enacted  HAVA.339  Accordingly, 
private  enforcement  through  §  1983  poses  no  real  danger  of  muddying  the  law 
or  impeding  administrative  enforcement. 

Unfortunately,  the  Brunner  Court  did  not  consider  either  the  conceptual  or 
practical  problems  with  applying  existing  private-right-of-action  doctrine  to 
election  disputes.  This  is  not  surprising,  given  the  brevity  of  the  opinion  and  the 
compressed  timetable  on  which  the  case  was  decided.  In  fact,  the  difficulty  of 
thinking  through  all  the  ramifications  of  a  decision  is  one  of  the  main  reasons  for 
the  Supreme  Court  being  extraordinarily  cautious  in  deciding  whether  to  grant 
certiorari  of  pre-election  cases.340  In  the  appropriate  case,  the  Court  should 
revisit  the  issue  and  carve  out  an  exception  to  the  demanding  test  it  has  generally 


335.  India  Const.  Dec.  1,  2007,  art.  329(b). 

336.  1958  Const,  art.  58  (Fr.). 

337.  See  Tokaji,  If  It 's  Broke,  Fix  It,  supra  note  1 2,  at  798-8 15. 

338.  Stewart  &  Sunstein,  supra  note  92,  at  1290-94  (giving  examples  of  such  areas  of  law). 

339.  42U.S.C.  §  15329(2006).  That  area  is  mail  voting  under  the  NVRA.  See  id.  §§  1973gg- 
1973gg-10. 

340.  See  Tokaji,  Leave  It  to  the  Lower  Courts,  supra  note  17,  at  1067,  1094. 


158  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


prescribed  for  private  enforcement  under  §1983.  Where  federal  election  statutes 
are  at  issue,  it  should  allow  enforcement  of  public  (and  not  just  individual)  rights 
and  eliminate  the  requirement  that  the  statute  unambiguously  confer  a  right,  as 
Gonzaga  demands.341 

I  close  by  considering  two  possible  objections  to  my  suggestion  of  a  more 
generous  test  for  private  enforcement  of  federal  election  statutes.  The  first 
objection  is  that  it  would  violate  separation  of  powers.  This  is  a  familiar 
objection,  extending  at  least  as  far  back  as  Justice  Powell's  dissenting  opinion 
in  Cannon?42  It  is  for  Congress  to  determine  whether  and  how  federal  statutes 
are  to  be  enforced,  the  argument  goes.  Accordingly,  it  would  violate  separation 
of  powers  to  allow  a  private  right  of  action  in  cases  where  Congress  has  not  done 
so. 

This  argument  would  have  some  force  in  cases  where  congressional  intent 
to  preclude  enforcement  through  §  1983  is  clear.  In  such  cases,  I  would 
acknowledge  that  the  statute  cannot  be  enforced.  But  the  set  of  cases  with  which 
this  Article  has  been  concerned  are  ones  in  which  congressional  intent  is  not 
clear — and  it  is  therefore  up  to  the  courts  to  determine  whether  a  private  right  of 
action  lies.  All  three  of  the  federal  election  statutes  discussed  above  fall  into  this 
category.343  Where  congressional  intent  is  not  clear,  courts  can  and  should  adopt 
presumptions  to  guide  the  determination  whether  the  statutory  requirement  is 
privately  enforceable.  The  Court  has  done  just  that,  in  adopting  a  general 
presumption  against  implication  of  private  rights  of  action,  and  in  generally 
refusing  to  allow  §  1983  absent  an  unambiguously  conferred  individual  right.344 
My  argument  is  not  that  federal  courts  should  disregard  legislative  intent,  but 
rather  that  they  should  adopt  a  different  presumption  in  election  cases  where  the 
intent  of  Congress  is  not  clear.345  Should  Congress  disagree,  it  is  always  free  to 


341.  Gonzaga  v.  Doe,  536  U.S.  273,  282-83  (2002). 

342.  Cannon  v.  Univ.  of  Chi.,  44 1  U.S.  677, 733  (1 979)  ( Powell,  J.,  dissenting)  (asserting  that 
for  almost  fifty  years  after  Rigsby,  the  only  other  statute  under  which  the  Court  had  recognized  an 
implied  right  of  action  was  under  the  Railway  Labor  Act  of  1926). 

343 .  That  includes  HAVA,  and  Senator  Dodd's  statement  that  Republicans  would  not  support 
inclusion  of  a  right  of  action  in  the  statute  {supra  note  284  and  accompanying  text)  does  not  alter 
that  conclusion.  All  this  means  is  that  Congress  could  not  agree  on  whether  to  include  an  express 
right  of  action,  thus  throwing  the  question  of  its  enforceability  under  §  1983  to  the  courts. 

344.  See  supra  Part  II.B. 

345.  One  might  argue  that  my  proposed  revision  changes  the  default  rule,  of  which  Congress 
should  be  presumed  aware  when  it  legislates.  In  other  words,  Congress  knows  that  a  statute  like 
HAVA  will  not  be  enforceable  unless  it  unambiguously  confers  individual  rights.  It  therefore  has 
reason  to  expect  that  requirements  will  not  be  privately  enforced  if  they  do  not  confer  such  a  right. 
But  this  argument  proves  too  much,  for  any  judicial  alteration  to  the  rules  governing  rights  of  action 
(either  implied  or  under  §  1983)  necessarily  changes  the  default  rule  against  which  Congress 
legislates.  Thus,  if  this  argument  were  accepted,  then  all  the  decisions  discussed  in  Part  II  that 
modified  right-of-action  doctrine  are  necessarily  wrong.  Moreover,  there  is  little  reason  to  believe 
that  members  of  Congress  are  paying  such  close  attention  to  the  changing  nuances  of  private-right- 
of-action  doctrine.    Accordingly,  the  modest  change  in  the  rule  for  private  rights  action  that  I 


20 1 0]  FEDERAL  ELECTION  LAWS  ENFORCEMENT  1 59 


overrule  the  courts  by  taking  away  the  right  of  action  that  they  have  allowed. 

The  other  objection  to  my  argument  for  private  enforceability  has  to  do  with 
judicial  competence  in  cases  where  the  legal  mandate  is  open  to  reasonable 
competing  interpretations.  At  least  in  some  cases,  federal  election  law  disputes 
may  involve  vague  or  ambiguous  requirements.  State  and  local  election  officials 
may  be  in  a  better  position  to  evaluate  the  harms  and  benefits  that  would  flow 
from  a  particular  decision.  By  contrast,  the  argument  goes,  federal  judges  are 
likely  to  be  inexperienced  in  running  elections  and  therefore  ill-equipped  to 
balance  competing  harms.  To  concretize  this  problem,  it  is  helpful  to  return  to 
the  set  of  facts  that  gave  rise  to  Brunner. ue  Recall  that  the  Ohio  Republican 
Party  claimed  that  the  secretary  of  state  was  violating  a  statute  requiring  her  to 
enter  into  an  agreement  to  "match"  voter  registration  information  against  other 
records  "to  the  extent  required  to  enable  each  such  official  to  verify  the  accuracy 
of  the  information  provided."347  Even  assuming  that  this  statute  can  be  read  as 
a  mandate  that  election  officials  conduct  registration  matching,  the  statute  is  not 
very  precise  about  when  and  how  this  matching  should  be  done.348  For  example, 
what  if  there  are  minor  discrepancies  between  the  information  in  different 
databases?  Under  what  circumstances  is  matching  "required"  to  verify  voter 
registration  information?  May  a  state  dispense  with  matching  entirely  if  it  has 
a  voter  identification  requirement  to  verify  voter  eligibility,  as  in  Ohio?349  Those 
who  worry  about  judicial  competence  might  contend  that  such  judgments  should 
be  left  to  election  officials,  not  made  by  federal  judges. 

There  is  considerable  force  to  the  concern  that  federal  judges  may  act  beyond 
their  competence  by  supplanting  the  discretionary  judgments  of  state  and  local 
election  officials.  But  this  is  not  a  persuasive  argument  against  allowing  private 
enforcement  of  election  statutes  as  a  general  matter.  After  all,  the  standard  for 
determining  whether  there  should  be  a  private  right  of  action  under  §  1983 
already  takes  into  consideration  the  specificity  of  the  statutory  mandate.  Under 
Golden  Transit,  one  of  the  three  factors  is  whether  the  interest  protected  is 
sufficiently  specific  as  to  be  judicially  enforceable.350  I  do  not  propose  that  this 
factor  be  eliminated  from  the  test.  In  addition,  concerns  regarding  judicial 
competence  may  be  taken  into  consideration  when  courts  get  to  the  merits  of  a 
dispute,  and  not  simply  when  determining  whether  a  right  of  action  exists.  In  the 
dispute  over  the  maintenance  of  state  registration  databases,  for  example,  a  court 
might  well  interpret  HAVA  to  leave  some  discretion  in  election  officials  to 
determine  whether  and  how  to  conduct  matches.  They  might  be  more  deferential 
to  determinations  made  by  election  management  bodies  that  are  insulated  from 
partisan  politics  (as  in  Wisconsin)  than  they  are  to  determinations  made  by  party- 


advocate  cannot  plausibly  be  said  to  upset  Congress's  expectations. 

346.  Brunner  v.  Ohio  Republican  Party,  129  S.  Ct.  5  (2008)  (per  curiam). 

347.  Ohio  Republican  Party  v.  Brunner,  544  F.3d  711,713-14  (6th  Cir.)  (en  banc)  (quoting 
42  U.S.C.  §  15483(a)(5)(B)(i)  (2006)),  vacated,  129  S.  Ct.  5  (2008). 

348.  See  Tokaji,  Voter  Registration  and  Institutional  Reform,  supra  note  19,  at  6-7. 

349.  Id. 

350.  Golden  State  Transit  Corp.  v.  City  of  L.A.,  493  U.S.  103,  108  (1989). 


1 60  INDIANA  LAW  REVIEW  [Vol.  44: 1 1 3 


affiliated  state  election  officials  (as  in  Ohio).351  Judicial  competence  is  therefore 
a  serious  concern,  but  it  does  not  necessarily  counsel  against  a  private  right  of 
action;  rather  it  may  instead  be  considered  at  the  merits  stage  in  determining  and 
applying  the  appropriate  legal  standard. 

Conclusion 

Election  cases  are  different.352  They  frequently  involve  collective  interests, 
or  public  rights,  that  are  not  easily  individuated.  And  they  are  cases  for  which 
a  federal  judicial  forum  is  often  vital,  given  the  pervasive  decentralization  and 
partisanship  of  American  election  administration  and  the  absence  of  an 
administrative  body  able  to  ensure  the  consistent  implementation  of  the  law.  In 
Brunner,  the  Court  failed  to  consider  these  distinctive  aspects  of  federal  election 
law  disputes.353  In  fact,  both  the  lower  courts  and  the  Supreme  Court  got  it 
wrong  in  that  case — even  though  they  arrived  at  diametrically  opposite 
conclusions.  The  lower  courts  incorrectly  applied  existing  precedent,  most 
notably  Gonzaga,  which  clearly  foreclosed  private  enforcement  of  HAVA's 
matching  requirement  given  the  absence  of  an  unambiguously  conferred 
individual  right.354  But  the  Supreme  Court  was  also  incorrect  in  failing  to 
reconsider  this  precedent  to  account  for  the  especially  important  role  the  federal 
courts  play  in  electoral  disputes.  Though  faithfully  applying  existing  doctrine, 
the  Supreme  Court  missed  the  opportunity  to  correct — or  at  least  limit — a  line  of 
precedent  that  has  unfortunate  consequences  in  the  realm  of  election  law.  In  the 
appropriate  case,  the  Court  should  revisit  Brunner  and  relax  the  standard  for 
private  enforcement  of  federal  election  statutes  under  §  1983. 


35 1 .  Tokaji,  Voter  Registration  and  Institutional  Reform,  supra  note  1 9,  at  8.  I  have  chosen 
these  states  because  they  are  ones  in  which  database  matching  actually  arose  in  2008  and  because 
they  have  contrasting  methods  of  selecting  their  state  election  authorities.  I  have  elsewhere  argued 
that  courts  should  be  more  deferential  to  election  management  bodies  that  are  insulated  from 
partisan  politics  than  they  are  to  election  officials  who  have  conflict  of  interest  by  virtue  of  their 
party  affiliation.  See  Tokaji,  Lowenstein  Contra  Lowenstein,  supra  note  1 1 . 

352.  See  generally  Frederick  Schauer  &  Richard  H.  Pildes,  Electoral  Exceptionalism  and  the 
First  Amendment,  11  TEX.  L.  REV.  1 803  ( 1 999)  (considering  the  possibility  of  special  constitutional 
principles  in  the  context  of  democratic  politics). 

353.  Brunner  v.  Ohio  Republican  Party,  129  S.  Ct.  5  (2008)  (per  curiam). 

354.  Gonzaga  Univ.  v.  Doe,  536  U.S.  273,  283  (2002). 


Language  Assistance  and  Local  Voting  Rights  Law 


Angelo  N.  Ancheta* 


Introduction 

In  2007,  the  City  of  Beverly  Hills,  California  became  entangled  in  a  heated 
controversy  over  a  local  election  policy  designed  to  assist  a  major  segment  of  its 
citizenry — one  that  by  some  estimates  had  grown  to  over  one-quarter  of  the  city's 
population  of  35,000/  For  the  March  2007  municipal  election,  the  city  clerk's 
office  had  taken  steps  to  translate  the  absentee  and  sample  ballots  into  Farsi,  the 
language  commonly  read  and  spoken  by  individuals  of  Iranian  descent.  Although 
Farsi  translations  of  voting  materials  had  first  been  employed  two  years  earlier 
to  assist  Iranian  American  voters,  the  materials  for  the  upcoming  election  ignited 
a  new  debate  because  of  the  city  clerk's  decision  to  mail  multilingual 
ballots — with  Farsi  characters  in  large  print  on  the  cover  and  throughout  the 
booklet — to  all  registered  Beverly  Hills  voters,  not  simply  to  those  who  had 
requested  translated  ballots. 

The  city  clerk's  office  was  quickly  flooded  with  telephone  calls  from 
hundreds  of  voters  complaining  about  the  materials  for  the  upcoming  election. 
Speaking  to  the  local  press,  one  Beverly  Hills  voter  stated,  "We  got  the  ballot  in 
the  mail  and  there  were  all  kinds  of  languages  splattered  over  the  front  page  and 
I  got  offended  by  it."2  Another  resident  added,  "It  sends  a  bad  message.  It's  a 
message  which  is  divisive,  which  I  believe  is  designed  to  separate  as  opposed  to 
unite.  In  fact,  it's  done  that."3  And  one  voter  who  felt  especially  affronted — and 
threw  away  the  ballot  immediately  after  casting  an  absentee  vote — bluntly  stated, 
"It  really  looked  like  a  menu  from  a  Farsi  restaurant  with  a  translation  in 
English."4 

In  defense  of  the  policy,  the  city  clerk  countered,  "We  don't  want  to 
disenfranchise  any  section  of  our  community  from  voting.  We're  trying  not  to 
exclude.  If  writing  the  information  in  their  language  helps  them  to  vote  without 
anyone  assisting  them,  we're  going  to  do  it."5  Reinforcing  the  Beverly  Hills  City 
Council's  interest  in  promoting  civic  engagement,  the  city  attorney  commented 
that  the  council  had  requested  Farsi  translations  three  years  earlier  because  "there 


*  Executive  Director,  Katharine  &  George  Alexander  Community  Law  Center,  Santa  Clara 
University  School  of  Law.  Special  thanks  to  Ryan  Watkins  for  his  research  assistance;  to  Michael 
Pitts,  Rachel  Moran,  Ming  Hsu  Chen,  Jocelyn  Benson,  Terry  Ao,  Eugene  Lee,  Glenn  Magpantay, 
and  Jacquelyn  Maruhashi  for  their  generosity  in  reviewing  earlier  versions  of  this  Article;  and  to 
the  participants  and  editors  of  the  Indiana  Law  Review  Symposium  on  The  Law  of  Democracy  for 
their  helpful  suggestions. 

1 .  See  Tony  Barboza,  For  Some,  Beverly  Hills  Ballots  Went  Too  Farsi,  L.  A.  TIMES,  Feb.  23 , 
2007,  at  Al ;  Ryan  Vaillancourt,  Translated  Sample  Ballots  Spark  Community  Backlash,  BEVERLY 
Hills  Wkly.,  Feb.  15, 2007,  at  3. 

2.  Vaillancourt,  supra  note  1,  at  3. 

3.  Barboza,  supra  note  1 . 

4.  Id. 

5.  Id. 


162  INDIANA  LAW  REVIEW  [Vol.  44:161 


was  a  need  in  the  community  and  it  would  encourage  more  and  better  informed 
political  participation.  Technically,  Beverly  Hills  is  not  required  by  federal  law 
to  translate  [election  materials]  into  Farsi."6 

However,  Jimmy  Delshad,  an  Iranian  American  member  of  the  city  council 
who  became  the  mayor  of  Beverly  Hills  after  the  2007  election,7  offered  a  more 
guarded  opinion  of  the  translated  materials:  "It's  possible  that  this  ballot  has 
gone  overboard.  We  want  to  reach  out  to  others,  but  at  the  same  time  make  it  one 
unified  community[.]  To  the  extent  that  it  might  be  divisive,  I  don't  like  it."8 
Councilman  Delshad' s  skepticism  ultimately  signaled  a  shift  in  the  city's  election 
policy:  the  council  voted  in  August  2007  to  have  the  city  clerk  mail  out  ballots 
primarily  in  English  during  subsequent  election  cycles;  separate  Farsi  ballots 
would  continue  to  be  printed,  but  would  only  be  made  available  to  voters  upon 
request.9 

Beverly  Hills — a  city  more  renowned  for  its  glamour  and  affluence  than  for 
its  immigrant  communities  and  election  laws — may  have  a  unique  political 
landscape,  but  comparable  demographic  changes,  public  policies,  and  shifts  in 
local  power  dynamics  have  developed  in  cities  and  suburbs  across  the  country. 
Communities  ranging  from  major  urban  centers  such  as  New  York,  Chicago, 
Philadelphia,  Miami,  and  Minneapolis  to  small  cities  with  immigrant  enclaves 
such  as  Beverly  Hills  and  West  Hollywood  in  Southern  California  have  enacted 
policies  that  offer  voluntary  language  assistance  to  local  voters.  In  Miami-Dade 
County,  for  example,  translations  are  available  in  Creole  to  assist  the  local 
Haitian  American  population.  In  Southern  California,  ballots  are  offered  in 
Armenian  in  Glendale,  in  Russian  in  West  Hollywood,  and  in  Khmer 
(Cambodian)  in  Long  Beach.  And  in  Chicago,  forms  of  voter  assistance  are 
available  in  English  and  fifteen  additional  languages.  These  recent  developments 
are  particularly  significant  because  they  reflect  policy  initiatives  that  go  well 
beyond  federal  language  assistance  mandates  contained  in  the  Voting  Rights  Act 


6.  Vaillancourt,  supra  note  1,  at  5.  Local  institutions  also  voiced  support  for  the  policy. 
A  Los  Angeles  Times  editorial  article,  for  instance,  noted,  "There's  nothing  new  about  hostile 
reaction  to  foreign  languages  appearing  alongside  English  on  signs,  pamphlets  and  other  official 
reading  material.  But  there's  something  more  comical  about  it  when  it  happens  in  Beverly  Hills. 
. . .  [where  the]  clash  isn't  about  (comparatively)  rich  versus  poor  but  rather  (comparatively)  rich 
versus  rich."  Editorial,  Beverly  Hills  Is  Within  Its  Rights,  and  Maybe  Its  Obligations,  to  Print 
Voting  Materials  in  Persian,  L.A.  TIMES,  Feb.  24, 2007,  at  A20.  The  editorial  concluded,  "Beverly 
Hills  is  completely  justified  in  printing  its  ballots  in  Persian.  Foreign  tongues  don't  taint  the  ballot, 
they  demonstrate  the  values  it  stands  for."  Id. 

1 .  See  Sonya  Geis,  Iran  Native  Becomes  Mayor  of  Beverly  Hills;  Bridging  Cultures  Is  a  Big 
Part  of  His  Role,  WASH.  POST,  Apr.  1,  2007,  at  A3. 

8.  Barboza,  supra  note  1 ,  at  Al .  Councilman  Delshad  later  asserted  that  the  Farsi  ballot  had 
magnified  resentment  against  Iranian  Americans  and  that  despite  his  eventual  success  in  the  2007 
election,  he  had  lost  several  hundred  votes  because  of  the  backlash.  Elisa  Osegueda,  Council  Says 
Farsi  Ballot  Issue  Misunderstood — System  to  Be  Changed  for  the  2009  Elections,  BEVERLY  Hills 
Wkly.,  Aug.  23,  2007,  at  3. 

9.  Osegueda,  supra  note  8,  at  3. 


20 1 0]  LANGUAGE  ASSISTANCE  1 63 


of  1965  ("the  Act").10 

Local  language  assistance  policies  offer  important  insights  into  the  strengths 
and  weaknesses  of  federal  voting  rights  law,  as  well  as  into  larger  questions 
about  anti-discrimination  law  and  the  role  of  language  assistance  in  helping 
communities  integrate  immigrants  into  civic  life.  The  Voting  Rights  Act's 
primary  language  assistance  mandates  are  structured  largely  to  remedy 
discrimination  in  both  the  electoral  process  and  in  education — a  root  cause  of 
depressed  political  participation  by  language  minorities.  However,  the  Act's 
mandates  are  not  designed  to  address  the  needs  of  limited-English  proficient 
voters  as  a  whole.  Recent  state  and  local  policies  have  therefore  begun  to  fill 
significant  gaps  in  federal  law. 

Language  assistance  policies  also  provide  insights  into  the  expansion  of 
voting  rights  jurisprudence  more  generally,  a  trend  that  is  reflected  both  in  local 
legislation  and  in  remedies  adopted  in  federal  litigation  involving  local 
governments.  Unlike  the  language  assistance  provisions  of  the  Act,  many  recent 
policies  are  more  aptly  classified  as  accommodation  measures,  comparable  to 
those  developed  in  laws  that  address  discrimination  on  the  basis  of  disability  or 
religion.  Prospective  rather  than  strictly  remedial,  these  measures  require  the 
removal  of  impediments  to  participation  in  order  to  prevent  discrimination 
against  protected  individuals.11  In  addition,  language  assistance  policies  offer 
insights  into  broader  policy  agendas  that  promote  civic  engagement  and  address 
the  integration  of  immigrant  populations  into  local  communities.  Language 
assistance  in  voting  is  often  one  of  several  tools — including  offering  greater 
opportunities  for  immigrants  to  learn  English  and  providing  language  assistance 
in  other  key  sectors  such  as  education,  social  services,  health  care,  and  the  justice 
system — that  form  a  network  of  rights  and  services  which  promote  civic 
participation. 

At  the  same  time,  language  assistance  is  still  a  hotly  contested  political  issue 
regardless  of  whether  the  underlying  goal  is  remedying  discrimination  or 
promoting  civic  engagement.  Federal,  state,  and  local  policymaking  have  been 
colored  by  longstanding  debates  between  advocates  of  assimilation,  who 
typically  require  English  fluency  as  a  precondition  for  civic  activities  such  as 
voting,  and  those  endorsing  ethnic  pluralism  and  the  maintenance  of  non-English 
languages  among  minority  groups.12  Many  policymakers  and  citizens  remain 


10.  Pub.  L.  No.  89-1 10,  79  Stat.  437  (codified  as  amended  at  42  U.S.C.  §§  1971,  1973  to 
1973bb-l  (2006)). 

11.  I  have  previously  argued  that  trends  at  the  federal  level,  including  litigation  under 
sections  203  and  2  of  the  Voting  Rights  Act,  have  pushed  federal  voting  rights  law  in  the  direction 
of  increased  legal  accommodations  for  language  minorities.  See  Angelo  N.  Ancheta,  Language 
Accommodation  and  the  Voting  Rights  Act,  in  VOTING  RIGHTS  ACT  REAUTHORIZATION  OF  2006: 
Perspectives  on  Democracy,  Participation,  and  Power  293  (Ana  Henderson  ed.,  2007).  My 
analysis  here  builds  on  that  discussion  and  focuses  on  state  and  local  developments  as  sources  of 
movement  toward  greater  language  accommodations. 

12.  See  generally  Ronald  Schmidt,  Sr. ,  Language  Policy  and  Identity  Politics  in  the 
United  States  1 30-62  (2000)  (comparing  assimilationist  and  pluralist  arguments);  Juan  F.  Perea, 


1 64  INDIANA  LAW  REVIEW  [Vol.  44: 1 6 1 


resistant  to  change,  and  some  governments  have  moved  in  the  opposite  direction 
of  promoting  language  assistance,  enacting  English-only  policies  and  significant 
restrictions  on  immigrants'  rights.13  Language  assistance,  as  illustrated  by  the 
recent  controversy  in  Beverly  Hills  over  Farsi  ballots,  will  no  doubt  remain  a 
highly  contentious  issue  in  communities  throughout  the  country. 

In  this  Article,  I  explore  these  developments  through  an  analysis  of  federal, 
state,  and  local  voting  rights  law.  In  Part  I,  I  examine  the  scope  of  language 
needs  nationwide  and  discuss  the  limits  of  the  language  assistance  provisions  of 
the  Act.  In  Part  II,  I  focus  on  state  and  local  policymaking  in  a  number  of 
contexts:  as  elements  of  settlement  agreements  in  federal  litigation;  in 
anticipation  of  impending  mandates  under  the  Act;  and  as  voluntary  efforts  that 
respond  to  local  populations  and  community  needs.  Although  my  analysis  covers 
several  states  and  localities,  it  is  designed  merely  to  be  illustrative;  I  have  made 
no  attempt  to  engage  in  a  comprehensive  survey  of  the  jurisdictions  that  provide 
language  assistance.  In  Part  III,  I  discuss  the  implications  of  local  language 
assistance  policies  in  advancing  broader  goals  in  anti-discrimination  law,  civic 
engagement,  and  immigrant  integration. 

I.  The  Limits  of  Federal  Language  Assistance 

The  Act  is  unusual  among  major  civil  rights  laws  in  that  it  contains  explicit 
protections  for  language  minority  groups.  Widely  used  anti-discrimination 
statutes  such  as  Title  VI14  and  Title  VII15  of  the  Civil  Rights  Act  of  1964  contain 
prohibitions  on  national  origin  discrimination.  These  prohibitions  have  been 
interpreted  through  agency  regulations  and  by  Executive  Order  to  encompass 
forms  of  language  discrimination,  including  speak-English-only  policies.16  The 
Act,  however,  contains  no  direct  references  to  national  origin  discrimination. 
Instead,  the  Act  contains  several  sections  that  address  past  and  ongoing 
discrimination  against  specific  language  minority  groups  and  promote  electoral 
accessibility  for  limited-English  proficient  voters.17 


Demography  and  Distrust:  An  Essay  on  American  Languages,  Cultural  Pluralism,  and  Official 
English,  11  Minn.  L.  Rev.  269  (1992)  (outlining  legal  history  of  tensions  between  linguistic 
pluralism  and  assimilation). 

1 3 .  See  Pratheepan  Gulasekaram,  Sub-National  Immigration  Regulation  and  the  Pursuit  of 
Cultural  Cohesion,  11 U.  ClN.  L.  REV.  1441  (2009);  Cristina  M.  Rodriguez,  The  Significance  of  the 
Local  in  Immigration  Regulation,  106  MICH.  L.  Rev.  567  (2008). 

14.  42  U.S.C.  §§  2000d-2000d-4a  (2006)  (prohibiting  discrimination  by  recipients  of  federal 
funding). 

15.  Id.  §  §  2000e-2000e- 1 7  (2006  &  Supp.  2008)  (prohibiting  discrimination  in  employment). 

16.  See,  e.g.,  Exec.  Order  No.  13,166,  3  C.F.R.  §  289  (2000)  (establishing  standards  for 
services  to  limited-English  proficient  individuals  by  federal  agencies  and  recipients  of  federal 
funding);  29  C.F.R.  §  1606.7  (2009)  (addressing  English-only  rules  in  the  workplace). 

17.  See  42  U.S.C.  §  1 973b(f)  (2006)  (congressional  findings  of  voting  discrimination  against 
language  minorities;  prohibition  of  English-only  elections;  other  remedial  measures);  id.  §  1 973aa- 
la  (bilingual  election  requirements);  id.  §  1973aa-6  (voting  assistance  for  blind,  disabled,  or 


20 1 0]  LANGUAGE  ASSISTANCE  1 65 


The  language  rights  provisions  of  the  Act  embody  three  distinct  but  related 
models  of  anti-discrimination  enforcement.18  One  model — a  structural 
remediation  model — is  embodied  in  the  requirements  of  sections  4(f)(4)19  and 
20320  of  the  Act.  Designed  to  be  temporary  and  limited  in  scope,  the  mandates 
in  these  sections  address  the  electoral  and  educational  discrimination  that 
Congress  has  documented  against  language  minorities  by  requiring  oral  and 
written  assistance  in  communities  with  large  minority  populations.  A  second 
model — a  traditional  anti-discrimination  model — is  embodied  in  section  2  of  the 
Act,  which  is  a  permanent  provision  that  prohibits  discrimination  on  the  basis  of 
race,  color,  or  membership  in  a  language  minority  group.  A  third  model — an 
accommodation  model — is  embodied  in  section  208,21  which  Congress  added  in 
1982  primarily  to  assist  disabled  and  illiterate  voters,  but  which  has  evolved  into 
a  guarantee  of  assistance  for  limited-English  proficient  voters  as  well.  Together, 
these  provisions  form  a  network  of  language  rights  under  the  Act,  but  as  census 
data  and  other  empirical  studies  make  clear,  the  needs  of  limited-English- 
speaking  voters  are  considerably  larger  than  the  scope  of  the  Act's  coverage. 
Many  of  the  basic  limitations  of  the  Act  thus  form  the  backdrop  for  the 
enactment  of  local  policies  designed  to  meet  unaddressed  language  assistance 
needs. 

A.   The  Scope  of  Language  Needs 

With  numbers  fueled  by  immigration,  as  well  as  by  insufficient  opportunities 
to  learn  English  through  public  schools22  and  adult  education  programs,23  limited- 
English  proficient  individuals  constitute  a  large  and  growing  segment  of  the 
American  population.  According  to  2007  U.S.  Census  Bureau  data,  19.7%  of  the 
American  population  aged  five  or  over — over  fifty-five  million  people — spoke 
a  language  other  than  English  at  home.24  Of  this  number,  approximately  24.5 


illiterate  persons).  The  Act's  general  antidiscrimination  provision,  contained  in  section  2  of  the 
Act,  prohibits  the  denial  or  abridgement  of  the  right  to  vote  based  on  membership  in  a  language 
minority  group,  in  addition  to  prohibiting  discrimination  on  account  of  race  or  color.  Id.  §  1 973(a) 
(cross-referencing  language  minority  group  rights  contained  in  §  1973b(f)(2)). 

1 8 .  See  Ancheta,  supra  note  1 1 ,  at  3 00-05 . 

19.  42U.S.C.  §  1973b(f). 

20.  Id  §  1973aa-la. 

21.  Id  §  1973aa-6. 

22.  See  H.R.  Rep.  No.  109-478,  at  50-52  (2006),  available  at  2006  WL  1403199 
(summarizing  congressional  findings  on  educational  inequalities  facing  language  minorities). 

23.  See  James  Thomas  Tucker,  The  ESL  Logjam:  Waiting  Times  for  Adult  ESL 
Classes  and  the  Impact  on  English  Learners  1  (2006),  available  at  http://www.naleo.org/ 
downloads/ESLReportLoRes.pdf.  Data  collected  on  English  as  a  Second  Language  (ESL)  adult 
education  classes  have  revealed  that  waiting  periods  for  enrolling  in  ESL  classes  can  range  from 
several  weeks  to  a  number  of  years;  moreover,  many  ESL  providers  do  not  maintain  waiting  lists 
at  all  because  the  demand  for  classes  far  exceeds  the  supply.  Id.  at  1-2. 

24.  Hyon  B.  Shin  &  Robert  A.  Kominski,  U.S.  Census  Bureau,  Language  Use  in  the 


1 66  INDIANA  LAW  REVIEW  [Vol.  44: 1 6 1 


million  people  spoke  English  less  than  "very  well,"25  thus  meeting  the  definition 
of  "limited-English  proficient"  under  the  Act.26  The  largest  number  of 
Americans  who  spoke  English  less  than  "very  well"  in  2007  were  Spanish 
speakers — nearly  16.4  million  people — with  significant  numbers  of  Chinese 
(1 .37  million),  Vietnamese  (over  744,000),  and  Korean  speakers  (over  61 8,000) 
falling  into  the  less-than-very-well  categories.27  Other  language  groups  have 
undergone  major  increases  in  recent  years:  from  1990  to  2000,  the  number  of 
Russian  speakers  nearly  tripled  from  242,000  to  706,000,  and,  in  2000, 
approximately  57%  (over  400,000)  spoke  English  less  than  very  well.28  During 
the  same  period,  the  number  of  French  Creole  speakers,  covering  Haitian 
Americans,  more  than  doubled  from  1 88,000  to  453,000,  and  approximately  46% 
(over  200,000)  spoke  English  less  than  very  well.29 


United  States:  2007,  at  2  tbl.l  (Apr.  2010)  [hereinafter  Census — Language  Use  2007], 
available  at  http://www.census.gov/prod/2010pubs/acs-12.pdf.  The  figures  for  2007  marked  an 
increase  from  17.8%  (46.9  million  people)  in  2000, 13.8%  (3 1.8  million  people)  in  1990,  and  11% 
(23.1  million  people)  in  1980.  See  id.  at  6  tbl.2. 

25.  Id.  at  2  tbl.l.  The  U.S.  Census  Bureau  categorizes  English  language  ability  under  the 
headings  "very  well,"  "well,"  "not  well,"  and  "not  at  all."  Id.  at  1 .  The  Bureau  also  calculates  the 
number  of  households  that  are  "linguistically  isolated"  as  a  measure  of  how  well  an  individual  can 
communicate  with  public  officials,  medical  personnel,  and  other  service  providers.  Hyon  B.  Shin 
&  Rosalind  Bruno,  U.S.  Census  Bureau,  Language  Use  and  English-Speaking  Ability: 
2000,  at  9  (Oct.  2003)  [hereinafter  Census — Language  Use  2000],  available  at  http://www. 
census.gov/prod/2003pubs/c2kbr-29.pdf.  A  linguistically  isolated  household  is  "one  in  which  no 
person  aged  [fourteen]  or  over  speaks  English  at  least  '[v]ery  well.'"  In  2000,  over  4.4  million 
households — covering  1 1.9  million  people — were  considered  linguistically  isolated.  Id.  at  10. 

26.  See  42  U.S.C.  §  1973aa-la(b)(3)(B)  (2006)  (defining  limited-English  proficient  voters 
as  individuals  who  are  "unable  to  speak  or  understand  English  adequately  enough  to  participate  in 
the  electoral  process").  The  House  Report  on  the  1992  Amendments  to  the  Act  identifies  the 
manner  by  which  the  Census  Director  determines  the  number  of  limited-English  proficient  (LEP) 
individuals: 

The  Director  of  the  Census  determines  limited  English  proficiency  based  upon 
information  included  on  the  long  form  of  the  decennial  census.  . .  .  The  form  requests 
that  they  respond  to  a  question  inquiring  how  well  they  speak  English  by  checking  one 
of  the  four  answers  provided — "very  well,"  "well,"  "not  well,"  or  "not  at  all."  The 
Census  Bureau  has  determined  that  most  respondents  over-estimate  their  English 
proficiency  and  therefore,  those  who  answer  other  than  "very  well"  are  deemed  LEP. 
H.R.  Rep.  No.  102-655,  at  6  (1992),  reprinted  in  1992  U.S.C.C.A.N.  766,  772. 

27.  See  Census — Language  Use  2007,  supra  note  24,  at  7  tbl.3. 

28.  Census-Language  Use  2000,  supra  note  25,  at  4  tbl.  1 . 

29.  Id.  Non-English-language  speakers  are  further  concentrated  in  key  areas  of  the  country, 
particularly  in  states  and  localities  that  are  entry  points  for  immigrants.  In  2007,  ten  states  had  over 
one  million  non-English-language  speakers,  led  by  California  (14.4  million),  Texas  (7.4  million), 
New  York(5.2  million),  Florida  (4.5  million),  and  Illinois  (2.6  million).  CENSUS — LANGUAGE  USE 
2007,  supra  note  24,  at  9  tbl. 4.  Counties  with  high  proportions  of  non-English-language  speakers 
included  large  cities  such  as  New  York  City,  Chicago,  and  Los  Angeles.  Los  Angeles  County  alone 


2010]  LANGUAGE  ASSISTANCE  167 


Many  limited-English  proficient  individuals  are  non-citizens  who  are  not  yet 
eligible  to  vote,  but  significant  blocs  of  voters — including  both  U.S. -born  citizens 
and  naturalized  citizens — lack  the  requisite  English  skills  needed  to  participate 
meaningfully  in  the  electoral  process.  Congress  has  long  recognized  that  many 
Puerto  Ricans,  who  are  American  citizens  by  birth,  have  been  educated  in 
Spanish-dominant  schools  and  face  barriers  in  English-only  electoral 
procedures.30  According  to  2000  census  figures,  over  one-quarter  of  Puerto 
Ricans  are  limited-English  proficient.3 1  Similarly,  many  Pacific  Islander  groups, 
including  Native  Hawaiians  and  Guamanians,  are  citizens  by  birth,  yet  high  rates 
of  limited-English  proficiency  persist  among  these  populations — approximately 
one  in  seven  Pacific  Islanders  according  to  census  data.32  And  among  Alaska 
Natives  and  American  Indians,  who  are  also  citizens  by  birth,  significant 
numbers  of  the  population  are  limited-English  proficient;33  moreover,  Congress 
has  recognized  the  importance  of  preserving  Native  American  languages,  and  the 
use  of  native  languages  is  strongly  supported  by  federal  policy.34 


had  over  2.5  million  residents  who  were  limited-English  proficient  in  2000;  of  these,  1.8  million 
were  Latino  and  over  500,000  were  Asian  American.  Asian  Pac.  Am.  Legal Ctr.  of  S.  Cal.,  L.A. 
Speaks:  Language  Diversity  and  English  Proficiency  by  Los  Angeles  County  Service 
Planning  Area  6  (2008)  [hereinafter  APALC — L.A.  Speaks],  available  at  http://demographics. 
apalc.org/wp-content/uploads/2008/03/la-speaks-final-031908.pdf 

Studies  of  state  and  local  data  have  also  revealed  high  rates  of  limited-English  proficiency 
among  members  of  particular  ethnic  groups.  See  id.  at  6-9  (presenting  data  on  limited-English 
proficient  populations  in  Los  Angeles  County);  ASIAN  Pac  Am.  Legal  Ctr.  OF  S.  Cal., 
California  Speaks:  Language  Diversity  and  English  Proficiency  by  Legislative  District 
6-8  (2006),  available  at  http://apalc.org/demographics/wp-content/uploads/2006/09/apalc_ 
californiaspeaks.pdf  (presenting  data  on  limited-English  proficient  populations  in  California).  For 
instance,  in  Los  Angeles  County,  among  adults  aged  eighteen  to  sixty- four,  71%  of  Guatemalans, 
70%  of  Hondurans,  67%  of  Vietnamese,  66%  of  Cambodians,  66%  of  Salvadorans,  63%  of 
Koreans,  55%  of  Chinese,  52%  of  Mexicans,  and  49%  of  Armenians  were  limited-English 
proficient.  APALC — L.A.  Speaks,  supra,  at  8. 

30.  See  42  U.S.C.  §  1973b(e)  (2006)  (prohibiting  English-only  literacy  tests  for  persons 
educated  in  "American-flag  schools"  where  predominant  classroom  language  was  not  English). 

3 1 .  Roberto  R.  Ramirez,  U.S.  Census  Bureau,  We  the  People:  Hispanics  in  the  United 
States  10  (Dec.  2004),  available  at  http://www.census.gov/prod/2004pubs/censr-l  8.pdf. 

32.  PhilipM.Harris&NicholasA.Jones,U.S.CensusBureau,WethePeople:  Pacific 
Islanders  in  the  United  States  1 1  (Aug.  2005),  available  at  http://www.census.gov/prod/ 
2005pubs/censr-26.pdf 

33.  According  to  2000  census  data,  approximately  10%  of  American  Indians  and  Alaska 
Natives  spoke  English  less  than  very  well  and  were  therefore  limited-English  proficient.  Stella 
U.  Ogunwole,  U.S.  Census  Bureau,  We  the  People:  American  Indians  and  Alaska  Natives 
in  the  United  States  7  (Feb.  2006),  available  at  http://www.census.gov/population/www/ 
socdemo/race/censr-2 8.pdf.  Some  groups  have  considerably  higher  rates  of  limited-English 
proficiency;  for  example,  among  Navajo  speakers,  one  in  four  were  limited-English  proficient, 
while  among  Eskimo  speakers,  over  15%  were  limited-English  proficient.  Id. 

34.  See  Native  American  Languages  Act  of  1992,  Pub.  L.  No.  102-524,  106  Stat.  3434 


168  INDIANA  LAW  REVIEW  [Vol.  44:161 


While  the  federal  immigration  and  naturalization  laws  have  long  contained 
English  language  requirements  for  gaining  naturalized  citizenship,  the  degree  of 
English  proficiency  needed  to  qualify  for  citizenship  is  only  a  level  of  basic 
comprehension.35  Informed  and  meaningful  voting,  particularly  in  states  and 
localities  that  employ  direct  democracy  mechanisms  such  as  referenda  and 
initiatives,  may  require  considerably  higher  levels  of  English  fluency.  There  are 
also  important  exceptions  in  the  naturalization  laws  for  long-term  residents  of  the 
United  States  who  are  elderly;  these  individuals  need  not  demonstrate  knowledge 
of  English  as  a  prerequisite  to  naturalization.36  Empirical  data  suggest  that 
limited-English  proficient  elderly  citizens  are  among  the  voters  most  in  need  of 
language  assistance.37 

Community-based  surveys  underscore  the  need  for  language  assistance 
among  limited-English  proficient  voters.  In  one  multistate  survey  of  voters 
conducted  during  the  November  2008  election,  data  showed  that  high  rates  of 
limited-English  proficiency  persist  among  several  groups  and  that  many  voters 
have  strong  preferences  for  language  assistance.38  In  New  York  City,  where  the 
Act  mandates  assistance  for  multiple  language  minority  groups,  62%  of  Chinese 
American  voters  surveyed  in  Brooklyn  were  limited-English  proficient  and  43% 
preferred  voting  with  language  assistance;  in  Queens,  75%  of  Korean  American 
voters  were  limited-English  proficient  and  29%  preferred  voting  with  language 
assistance.39  The  survey  also  found  that  voters'  needs  and  interest  in  language 
assistance  were  comparable  in  localities  without  mandated  Act  coverage.  In 
Chicago  (Cook  County),  81%  of  Korean  American  voters  were  limited-English 
proficient  and  43%  preferred  voting  with  language  assistance;  in  New  Orleans, 
63%  of  Vietnamese  American  voters  were  limited-English  proficient  and  45% 
preferred  voting  with  language  assistance.40 


(codified  as  amended  at  42  U.S.C.  §§  2991b-3,  2992d(e)  (2006)). 

35.  8  U.S.C.  §  1423(a)(1)  (2006). 

36.  The  naturalization  laws  create  exceptions  for  an  applicant  who  is  over  the  age  of  fifty  and 
has  resided  in  the  U.S.  as  a  lawful  permanent  resident  for  over  twenty  years,  as  well  as  for  an 
applicant  who  is  over  the  age  of  fifty-five  and  has  resided  in  the  United  States  for  over  fifteen  years. 
Applicants  need  not  demonstrate  English  proficiency,  but  they  must  still  fulfill  other  requirements, 
including  demonstrating  a  basic  knowledge  of  American  government  and  civics.  Id.  §  1423(b)(2). 

37.  See  APALC — L.A.  Speaks,  supra  note  29,  at  9.  Among  particular  ethnic  groups  of 
seniors  aged  sixty-five  or  older  in  Los  Angeles  County,  the  proportions  of  individuals  who  were 
limited-English  proficient  were  especially  high;  the  groups  with  the  ten  highest  percentages  of 
limited-English  proficiency  were  as  follows:  Taiwanese-93%,  Vietnamese-88%,  Cambodian-86%, 
Salvadoran-85%,  Iranian-84%,  Guatemalan-83%,  Chinese-82%,  Chinese  (Non-Taiwanese)-8 1  %, 
Korean-81%,Armenian-78%.  Id. 

3  8 .  Glenn  D.  Magpantay,  Asian  Am.  Legal  Defense  &  Educ.  Fund,  Asian  American 
Access  to  Democracy  in  the  2008  Elections  1 5  (2009)  [hereinafter  Asian  American  Access 
to  2008  Elections],  available  at  http://aaldef.org/docs/AALDEF-AA-Access-to-Democracy- 
2008.pdf  (survey  focused  on  Asian  American  voters  in  eleven  states  and  the  District  of  Columbia). 

39.  Id. 

40.  Id. 


20 1 0]  LANGUAGE  ASSISTANCE  1 69 


The  language  assistance  provisions  of  the  Act  cover  many  of  the  voters  who 
fall  within  these  clusters  and  categories,  but  numerous  limited-English  proficient 
voters  do  not  receive  assistance  either  because  they  do  not  trigger  the  Act's 
coverage  or  because  they  fall  outside  the  Act's  formal  definitions  of  language 
minority  groups.  Cambodian  Americans,  for  instance,  lacked  a  sufficiently  large 
population  in  Los  Angeles  County  after  the  2000  census  to  trigger  section  203 
coverage,41  while  Arab  Americans,  Armenians,  Iranians,  Russians,  and  Haitians 
are  among  the  many  groups  whose  languages  are  simply  not  covered  by  the  Act. 
The  omissions  are  not  oversights;  the  Act  has  particular  goals  and  circumscribed 
procedures  that  extend  coverage  in  only  limited  instances. 

B.  Structural  Remediation  and  Language  Assistance 

In  1975,  Congress  amended  the  Voting  Rights  Act  of  1965  in  a  number  of 
significant  ways  to  address  discrimination  against  language  groups.  First, 
Congress  recognized  that  denials  of  voting  rights  were  not  limited  to  black  voters 
in  the  South  and  expanded  the  Act's  basic  prohibitions  to  include  discrimination 
against  members  of  "language  minority"  groups.  The  1975  amendments  ensured 
that  individuals  of  Spanish  heritage,  as  well  as  Asian  Americans,  American 
Indians,  and  Alaska  Natives,  were  also  protected  by  the  Act.42  Second,  the 
amendments  established  a  set  of  structural  remedies,  contained  in  sections  4(f)(4) 
and  203,  to  address  longstanding  discrimination  against  language  minorities.43 
Congress  recognized  that  discrimination  in  education — including  segregation  and 
disparities  in  school  financing  and  resources — had  caused  minority  communities 


4 1 .  Informational  Hearing  on  the  Federal  Voting  Rights  Act:  Hearing  Before  the  S.  Comm. 
Elections,  Reapportionment  &  Const.  Amendments  Comm.  2005-06  Reg.  Sess.  3-4  (Cal.  2005) 
(statement  of  Karin  Wang,  V.P.  Programs,  Asian  Pac.  Am.  Legal  Ctr.),  available  at 
http://www.sen.ca.gov/reapportionment/HearingsTestimony/KarinWangl2_5_2005.pdf. 

42.  42U.S.C.  §  19737(c)(3)  (2006);  id.  §  1973aa-la(e).  The  legislative  history  of  the  1975 
amendments  shows  a  clear  congressional  intent  to  extend  the  Act's  coverage  beyond  anti-black 
racial  discrimination.  See  S.  Rep.  No.  94-295,  at  24-35  (1975),  reprinted  in  1975  U.S.C.C.A.N. 
774,  790-801.  However,  Congress  chose  to  employ  "language  minority"  status  rather  than  the 
category  of  "national  origin"  as  the  operative  language,  which  ultimately  limited  the  Act's  coverage 
to  the  four  enumerated  groups.  Id. 

Both  the  Act's  general  anti-discrimination  provisions  under  section  2, 42  U.S.C.  §  1973,  and 
its  preclearance  provisions  under  section  5, 42  U.S.C.  §  1973c,  were  amended  to  include  language 
minorities.  Section  5  requires  state  and  local  governments  with  a  long  history  of  discrimination  and 
depressed  minority  political  participation  to  "preclear"  any  changes  to  their  electoral  procedures 
either  through  administrative  review  by  the  Department  of  Justice  or  a  declaratory  judgment  by  a 
three-judge  panel  of  the  U.S.  District  Court  for  the  District  of  Columbia.  Id. 

43.  Section  4(e)  of  the  original  1965  Act  recognized  the  connection  between  English- 
language-proficiency  and  voting  discrimination  in  the  case  of  Puerto  Rican  voters,  many  of  whom 
had  been  educated  in  Spanish-dominant  educational  environments.  The  Act  now  prohibits  English- 
only  literacy  tests  for  "persons  educated  in  American-flag  schools  in  which  the  predominant 
classroom  language  was  other  than  English."  42  U.S.C.  §  1973b(e). 


1 70  INDIANA  LAW  REVIEW  [Vol.  44: 1 6 1 


throughout  the  nation  to  suffer  from  high  rates  of  illiteracy,  which  was  measured 
by  failure  to  complete  the  fifth  grade.  In  tandem  with  discrimination  in  the 
electoral  process  itself,  educational  inequalities  and  illiteracy  had  led  to  low  rates 
of  voter  registration  and  voting  by  language  minorities.  Congress  concluded  that 
electoral  procedures  conducted  only  in  English  would  therefore  be  inherently 
discriminatory  and  established  requirements  for  translated  voting  materials,  oral 
assistance,  and  other  language-based  remedies.44  At  the  same  time,  Congress 
found  that  problems  of  discrimination  and  low  political  participation  were  not  as 
severe  among  other  populations  and  limited  the  scope  of  the  Act's  remedies  to 
the  four  enumerated  language  minority  groups.45 

The  persistence  of  discrimination  against  language  minorities  has  led 
Congress  to  reauthorize  sections  4(f)(4)  and  203  multiple  times,  with  the  most 
recent  reauthorization  in  2006  extending  the  language  assistance  sections  for  an 
additional  twenty-five  years.46    Section  4(f)(4)  applies  to  a  small  number  of 


44.  Section  203(a)  states: 

The  Congress  finds  that,  through  the  use  of  various  practices  and  procedures,  citizens 
of  language  minorities  have  been  effectively  excluded  from  participation  in  the  electoral 
process.  Among  other  factors,  the  denial  of  the  right  to  vote  of  such  minority  group 
citizens  is  ordinarily  directly  related  to  the  unequal  educational  opportunities  afforded 
them  resulting  in  high  illiteracy  and  low  voting  participation.  The  Congress  declares 
that,  in  order  to  enforce  the  guarantees  of  the  fourteenth  and  fifteenth  amendments  to 
the  United  States  Constitution,  it  is  necessary  to  eliminate  such  discrimination  by 
prohibiting  these  practices,  and  by  prescribing  other  remedial  devices. 

42  U.S.C.  §  1973aa-la(a);  see  also  id.  §  1973b(f)(l)  (documenting  similar  findings  to  justify 

section  4(f)(4)). 

45.  The  Senate  Judiciary  Committee  considered  the  inclusion  of  other  language  groups  but 
declined  to  do  so  because  of  the  lack  of  evidence  of  substantial  discrimination  or  depressed  political 
participation  for  other  groups,  as  well  as  because  of  significant  differences  in  the  histories  of  the 
four  language  minority  groups  compared  to  European  immigrants.  S.  Rep.  No.  94-295,  at  31 
(1975),  reprinted  in  1975  U.S.C.C.A.N.  774, 797-98.  The  House  also  rejected  amendments  to  the 
Voting  Rights  Act  that  would  have  added  coverage  for  other  language  groups.  121  Cong.  Rec. 
HI  6,898  (daily  ed.  June  4,  1975)  (rejecting  amendment  of  Rep.  Biaggi);  id.  at  HI  6,907  (daily  ed. 
June  4,  1975)  (rejecting  amendment  of  Rep.  Solarz).  See  generally  JAMES  THOMAS  TUCKER,  The 
Battle  Over  Bilingual  Ballots  60-62  (2009).  Since  1975,  Congress  has  not  added  any  new 
language  groups  to  the  Act's  coverage.  Id.  at  62-64. 

46.  See  Fannie  Lou  Hamer,  Rosa  Parks,  and  Coretta  Scott  King  Voting  Rights  Act 
Reauthorization  and  Amendments  Act  of  2006,  Pub.  L.  No.  109-246,  120  Stat.  577.  The  House 
Judiciary  Committee's  report  summarized  its  findings  regarding  ongoing  discrimination  against 
language  minorities  as  follows: 

The  continued  need  for  bilingual  support  is  reflected  by:  (1)  the  increased  number  of 
linguistically  isolated  households,  particularly  among  Hispanic  and  Asian  American 
communities;  (2)  the  increased  number  of  language  minority  students  who  are 
considered  to  be  English  language  learners,  such  that  students  do  not  speak  English  well 
enough  to  understand  the  required  curriculum  and  require  supplemental  classes;  (3)  the 
continued  disparity  in  educational  opportunities  as  demonstrated  by  the  disparate  impact 


20 1 0]  LANGUAGE  ASSISTANCE  1 7 1 


jurisdictions  with  longstanding  histories  of  discrimination,47  while  section  203 
applies  nationally  through  a  variety  of  triggering  formulas  that  cover  multiple 
jurisdictions  and  language  groups  based  on  census  data.  Under  one  test,  section 
203  requires  language  assistance  in  a  state  or  political  subdivision  in  which  more 
than  5%  of  the  voting-age  citizens  are  members  of  a  language  minority  group,  are 
limited-English  proficient,  and  have  an  illiteracy  rate  that  exceeds  the  national 
illiteracy  rate.48  Under  a  similar  test,  the  5%  trigger  is  replaced  with  a  numerical 
benchmark  requiring  that  the  language  group  have  over  10,000  limited-English 
proficient  voting-age  citizens  in  a  jurisdiction.49 

The  section  203  formulas  recognize  the  relationships  among  education, 
language  ability,  and  voting,  as  well  as  Congress's  conclusion  that  discrimination 
against  language  minorities  is  a  widespread  problem  that  requires  no 
particularized  showing  of  past  discrimination  in  a  covered  jurisdiction.  The 
formulas  also  illuminate  the  cost-benefit  calculations  that  are  inherent  in 
providing  language  assistance  to  limited-English  proficient  voters.  Minority 
populations  must  be  sufficiently  large — satisfying  either  a  5%  population  trigger 


that  budget  shortfalls  have  on  language  minority  citizens,  and  the  continued  need  for 

litigation  to  protect  English  language  learners;  and  (4)  the  lack  of  available  literacy 

centers  and  English  as  a  Second  Language  programs. 
H.R.  Rep.  No.  109-478,  at  29  (2006),  available  at  2006  WL  1403199. 

Support  for  the  language  assistance  provisions  of  the  Voting  Rights  Act  has  not,  however, 
been  universal.  In  2006,  an  amendment  offered  by  Representative  Steve  King  to  reauthorization 
legislation  would  have  eliminated  section  203  of  the  Act,  but  it  was  defeated  by  a  vote  of  238-185 
in  the  House  of  Representatives.  See  The  U.S.  Congress  Votes  Database,  Wash.  Post, 
http://projects.washingtonpost.eom/congress/109/house/2/votes/372  (last  visited  Oct.  17,  2010). 

47.  Section  4(f)(4)  prohibits  English-only  materials  and  requires  language  assistance  in  states 
and  political  subdivisions  where:  (1)  over  5%  of  the  voting-age  citizens  were,  on  November  1, 
1 972,  members  of  a  language  minority  group;  (2)  registration  and  election  materials  were  provided 
only  in  English  on  that  date;  and  (3)  less  than  50%  of  the  voting-age  citizens  were  registered  to  vote 
or  voted  in  the  1972  presidential  election.  42U.S.C.  §  1973b(f)  (2006);  id.  §  1973b(b).  By  using 
information  from  1972,  the  section  focuses  on  areas  with  more  serious  histories  of  discrimination. 
In  addition,  jurisdictions  that  satisfy  the  triggering  formula  must  obtain  preclearance  of  changes  in 
election  procedures  under  section  5  of  the  Act.  42  U.S.C.  §  1973c. 

48.  42  U.S.C.  §  1973aa-la(b)(2)(A).  Congress  amended  section  203  in  1982  to  require  that 
a  language  minority  group  also  be  limited-English  proficient  in  order  to  satisfy  the  statistical 
benchmark,  which  actually  led  to  a  reduction  in  the  total  number  of  eligible  jurisdictions.  See  H.R. 
Rep.  No.  102-655,  at  7  (1992),  reprinted  in  1992  U.S.C.C.A.N.  766,  773. 

49.  42  U.S.C.  §  1973aa-la(b)(2)(A)(i)(II).  The  numerical  figure  was  designed  to  cover 
language  groups  with  significant  numbers  who  might  not  trigger  the  5%  test  because  they  reside 
in  a  high-population  county.  The  1992  amendments  to  the  Act  expanded  section  203 's  coverage 
to  include  political  subdivisions  that  contain  all  or  any  part  of  an  American  Indian  reservation  in 
which  over  5%  of  the  residents  are  members  of  a  single  language  group,  are  limited-English 
proficient,  and  have  an  illiteracy  rate  exceeding  the  national  average.  Act  of  Aug.  26,  1992,  Pub. 
L.  No.  102-344,  §  2, 100  Stat.  921  (codified  as  amended  at  42  U.S.C.  §  1973aa-la(b)(2)(A)(i)(III) 
(2006)). 


1 72  INDIANA  LAW  REVIEW  [Vol.  44: 1 6 1 


or  a  10,000-citizen  population  trigger — in  order  to  justify  the  expense  to  local 
government  of  providing  language  assistance.  The  benefits  to  voters  whose 
group  populations  fall  below  the  numerical  triggers  are  not  adequately  justified, 
at  least  in  Congress's  view,  by  the  costs  of  providing  translated  election  materials 
and  oral  assistance  to  those  voters. 

Sections  4(f)(4)  and  203  reach  a  wide  range  of  states,  counties,  American 
Indian  reservations,  and  language  groups.  Based  on  2000  census  data,  over  500 
jurisdictions  are  covered  by  one  or  both  provisions  of  the  Act,  and  nearly  fifty 
jurisdictions  must  provide  assistance  in  more  than  one  language.50  Among  the 
most  common  language  groups  covered  are  speakers  of  Aleut,  Apache,  Chinese, 
Eskimo,  Japanese,  Korean,  Navajo,  Sioux,  Spanish,  Tagalog  (Filipino),  and 
Vietnamese.51  Nationally,  over  four  million  limited-English  proficient  voters 
were  protected  by  the  language  assistance  provisions  in  accordance  with  the 
federal  government's  2002  determinations  of  coverage;  nearly  82%  of  these 
voters  spoke  Spanish,  and  nearly  17%  spoke  an  Asian  language.52 

Regulations  to  enforce  the  Act  have  also  generated  an  array  of  language 
assistance  practices  that  apply  to  materials  sent  by  mail,  voter  registration,  public 
notices,  polling  place  activities,  and  publicity;53  various  practices  include  forms 
of  targeted  oral  assistance54  and  translations  of  written  materials  such  as  official 
ballots,  sample  ballots,  informational  materials,  and  petitions.55  Compliance 
litigation  by  the  Department  of  Justice  has  added  to  the  regulatory  mandates,  and 
common  remedies  contained  in  court  orders  and  consent  decrees  include 
requirements  that  localities  develop  outreach  plans,  hire  bilingual  poll  workers 
and  a  language-assistance  coordinator,  and  create  a  community  advisory  body  to 
work  with  local  officials.56 


50.  See  TUCKER,  supra  note  45,  at  1 1 4- 1 5  (505  political  subdivisions  covered  by  one  or  both 
provisions). 

5 1 .  See  Voting  Rights  Act  Amendments  of  1 992,  Determinations  Under  Section  203, 67  Fed. 
Reg.  48,87 1 ,  48,872-922  (July  26,  2002). 

52.  See  Tuck.fr,  supra  note  45,  at  1 26  (total  of  4,026,38 1  limited-English  proficient  voters 
covered  (Spanish  (3,290,018),  Asian  American  (672,750),  American  Indian  (56,679),  and  Alaska 
Native  (6934)). 

53.  28C.F.R.  §  55.18(2006). 

54.  Id.  §  55.20. 

55.  Id.   §  55.19(a);  see  generally  U.S.  Gov't  ACCOUNTABILITY  OFFICE,  GAO-08-182. 

Bilingual  Voting  Assistance:  Sn  k  ted  Jurisdictions'  Strategies  for  Identifying  Needs 
and  Providing  Assisiancf  (2008),  available  at  http://www.gao.gov/new.items/d08182.pdf 
(overview  of  procedures  adopted  in  a  sample  of  covered  jurisdictions). 

56.  See,  e.g.t  Memorandum  of  Agreement,  United  States  v.  Riverside  Cnty.  (CD.  (  al  Jan. 
26,  2010)  (No.  2:10-CV-01059),  available  at  http://www.justice.gov/crtyvoting/sec_203/ 
documents/riverside  moa2.pdf;  Agreement  and  Order,  United  States  v.  City  of  Walnut  (CD.  Cal. 
Nov.  9,  2007)  (No.  2:07-cv-02437-PA-VBK),  available  at  http://www.justice.gov/crt/voting/ 
sec  203/documents/walnut  cd.pdf;  Settlement  Agreement.  United  States  v.  City  of  Phila.  ( E.D.  Pa. 
Apr.  26,  2007)  (No.  06-4592).  available  at  http://www.justice.gov/crt/voting/sec_203/documents/ 
phila  settlement.pdf;  Order,  United  States  v.  City  of  Bos.  (D.  Mass.  Oct.  18.  2005)  (No.  1 :05-cv- 


20 1 0]  LANGUAGE  ASSISTANCE  1 73 


Although  there  are  persistent  problems  arising  from  flawed  implementation 
of  the  law  by  covered  jurisdictions — including  inadequate  training  of  poll 
workers,  mistranslations  of  ballot  language  and  candidate  names,  and  insufficient 
assistance  at  poll  sites57 — there  have  been  strong,  positive  effects  on  voter 
participation  because  of  the  language  assistance  provisions.58  During  the  2006 
reauthorization  of  the  Act,  for  example,  the  House  Judiciary  Committee  Report 
concluded  that  "increases  in  language  minority  citizen  registration  and  turnout 
rates  are  most  significant  in  jurisdictions  that  are  in  compliance  with  Section 
203  's  election  assistance  requirements"  and  that  "enforcement  of  Section  203  has 
resulted  in  significantly  narrowed  gaps  in  electoral  participation."59 

Notwithstanding  the  impact  of  the  language  assistance  provisions,  there  are 
inherent  limits  in  the  Act  regardless  of  whether  jurisdictions  are  in  full 
compliance  with  the  law.  First,  the  inflexibility  of  the  formulas  that  trigger 
coverage  makes  the  congressional  remedies  incomplete  because  the  statistical 
formulas  operate  like  toggle  switches  to  initiate  language  assistance  within  a 
jurisdiction.  If  a  group  satisfies  a  statistical  benchmark — either  the  5%  figure  or 
the  1 0,000  numerical  figure — then  the  full  array  of  language  assistance  mandates 
go  into  effect;  however,  if  a  benchmark  is  not  satisfied,  then  no  federal  mandates 
are  deployed  at  all.  If  a  language  minority  population  lacks  a  critical  mass  in  a 
jurisdiction  to  trigger  coverage  because  of  its  size,  then  the  Act  does  not  require 
even  limited  or  partial  assistance.60 

Second,  because  the  "language  minority"  definition  has  been  tethered  to 
congressional  findings  of  discrimination  and  reduced  political  participation 
among  the  four  enumerated  groups,  assistance  for  all  other  language  groups  falls 
outside  the  coverage  of  the  Act.  Even  though  there  has  been  recent  evidence 
showing  that  language  groups  such  as  Arab  Americans61  and  Haitian  Americans62 


1 1 598-WGY),  available  at  http://www.justice.gov/crt/  voting/sec_203/documents/boston_cd2.pdf. 

57.  See,  e.g.,  James  Thomas  Tucker  &  Rodolfo  Espino,  Government  Effectiveness  and 
Efficiency?  The  Minority  Language  Assistance  Provisions  of  the  VRA,  12  TEX.  J.  C.L.  &  C.R.  163 
(2007);  Asian  American  Access,  supra  note  38,  at  4;  Nat'l  Asian  Pac.  Am.  Legal  Consortium, 
Sound  Barriers:  Asian  Americans  and  Language  Access  in  Election  2004  (2005),  available 
at  http://65.36.162.215/files/sound_barriers.pdf. 

58.  See  TUCKER,  supra  note  45,  at  229-3 1 . 

59.  H.R.REP.NO.  109-478,  at  12  (2006),  available  at  2006  WL  1403199  (internal  citations 
and  quotations  omitted). 

60.  A  related  problem  is  that  the  Act's  triggering  formulas  may  not  take  into  account  the 
growth  of  local  populations  between  official  census  data  collections.  The  Act  was  amended  in  2006 
to  require  data  from  the  U.S.  Census  Bureau's  American  Community  Survey,  which  are  to  be 
applied  every  five  years  to  determine  section  203  coverage;  prior  to  2006,  data  for  determining 
coverage  was  collected  through  the  decennial  census.  42  U.S.C.  §  1973aa-la(b)(2)(A)  (2006). 
Nevertheless,  federal  data  collected  at  five-year  intervals  may  not  reflect  the  latest  demographic 
changes  in  faster- growing  immigrant  communities. 

61.  See  Jocelyn  Benson,  Language  Protections  for  All?  Extending  and  Expanding  the 
Language  Protections  of  the  Voting  Rights  Act,  in  VOTINGRIGHTS  ACT  REAUTHORIZATION  OF2006: 
Perspectives  on  Democracy,  Participation,  and  Power  327  (Ana  Henderson  ed.,  2007); 


1 74  INDIANA  LAW  REVIEW  [Vol.  44: 1 6 1 


have  suffered  comparable  discrimination  and  exhibit  depressed  levels  of  political 
participation,  Congress  has  declined  to  add  any  new  groups  to  the  language 
minority  categories  since  1975.  These  and  other  shortcomings  in  the  language 
provisions  of  the  Act63  seem  unlikely  to  be  revised  in  the  immediate  future 
because  Congress's  most  recent  reauthorization  of  the  Act  was  in  2006,  and 
many  of  these  problems  surfaced  in  committee  hearings  and  floor  debates  but 
were  ignored  in  the  final  legislation.64 

C.  Additional  Language  Assistance:  Anti-Discrimination  and 
Accommodation  Models 

The  Act  offers  language  rights  protections  through  two  other  provisions: 
section  2  and  section  208.  Section  2  is  the  Act's  primary  vehicle  for  anti- 
discrimination litigation  and  differs  from  the  Act's  structural  language  assistance 
remedies  in  several  ways:  it  is  a  permanent  provision  of  the  Act,  applies 
nationwide,  and  does  not  employ  a  statistical  trigger  as  a  prerequisite  for 
coverage.65  While  section  2  protects  members  of  language  minority  groups  based 
on  their  group  status — in  other  words,  because  they  are  of  Spanish  heritage  or  are 
Asian  American,  American  Indian,  or  Native  Alaskan — section  2  does  not 
prohibit  discrimination  on  the  basis  of  limited-English  ability  or  language  usage 
per  se.  Section  2  has  been  employed,  nonetheless,  in  recent  anti-discrimination 
cases  to  obtain  language-based  remedies  designed  to  assist  limited-English 


Brenda  Fathy  Abdelall,  Note,  Not  Enough  of  a  Minority?:  Arab  Americans  and  the  Language 
Assistance  Provisions  (Section  203)  of  the  Voting  Rights  Act,  38  U.MICH.  J.L.REFORM  91 1  (2005). 

62.  See  JoNel  Newman,  Unfinished  Business:  The  Case  for  Continuing  Special  Voting 
Rights  Act  Coverage  in  Florida,  61  U.  MIAMI  L.  Rev.  1,  32-36  (2006). 

63.  See  generally  Jocelyn  Friedrichs  Benson,  jSu  Voto  Es  Su  Voz!  Incorporating  Voters  of 
Limited  English  Proficiency  into  American  Democracy,  48  B.C.  L.  REV.  251  (2007)  (discussing 
multiple  weaknesses  in  language  assistance  provisions). 

64.  The  language  assistance  provisions  are  also  circumscribed  because  of  constitutional  limits 
on  the  powers  of  Congress  to  legislate  remedial  action.  Recent  U.S.  Supreme  Court  case  law  has 
checked  congressional  authority  under  section  5  of  the  Fourteenth  Amendment  to  ensure  that 
legislative  responses  are  fully  documented  and  form  a  congruent  and  proportional  response  to 
constitutional  violations.  See  Bd.  of  Trs.  of  Univ.  of  Ala.  v.  Garrett,  53 1  U.S.  356, 365  (2001);  City 
of  Boerne  v.  Flores,  521  U.S.  507, 530  (1997);  cf  Nw.  Austin  Mun.  Util.  Dist.  No.  1  v.  Holder,  129 
S.  Ct.  2504  (2009)  (declining  to  review  constitutionality  of  provisions  in  section  5  of  the  Voting 
Rights  Act).  While  the  fact  finding  predicates  for  Congress's  most  recent  reauthorizations  of 
sections  4(f)(4)  and  203  should  readily  satisfy  constitutional  standards,  see  James  Thomas  Tucker, 
The  Battle  Over  "Bilingual  Ballots  "Shifts  to  the  Courts:  A  Post-Bocrne  Assessment  of  Section  203 
of  the  Voting  Rights  Act,  45  Harv.  J.  ON  LEGIS.  507  (2008),  adding  coverage  to  new  groups  or 
extending  remedies  beyond  documented  needs  could  raise  constitutional  questions  should  Congress 
further  amend  the  Act. 

65.  See  Hernandez  v.  Woodard,  714  F.  Supp.  963,  968-69  (N.D.  111.  1989)  (concluding  that 
section  2  claims  on  behalf  of  language  minorities  need  not  be  coupled  with  section  203 's  statistical 
prerequisites). 


2010]  LANGUAGE  ASSISTANCE  175 


proficient  voters.66 

In  United  States  v.  City  of  Hamtramck,  for  instance,  the  Department  of 
Justice  asserted  multiple  section  2  violations  arising  from  racial  discrimination 
perpetrated  by  a  government-approved  citizen  group  who  challenged  the 
citizenship  and  voter  qualifications  of  Arab  American  and  darker-skinned  Asian 
American  voters.67  During  the  course  of  the  November  1999  election  in 
Hamtramck,  Michigan,  over  forty  voters  were  confronted  on  the  basis  of  physical 
appearance  or  because  they  had  "Arab-sounding"  names.  As  a  core  remedy,  the 
Hamtramck  consent  decree  required  that  officials  be  trained  on  proper 
procedures  for  addressing  voter  intimidation  and  challenging  voter  qualifications. 
The  consent  decree  went  further,  however,  and  mandated  that  bilingual  election 
inspectors  be  hired  to  assist  in  future  elections  and  that  notices  be  prepared  in 
Arabic  and  in  Bengali  to  inform  voters  about  the  new  election  practices.68 

The  development  of  language-based  remedies  in  cases  like  United  States  v. 
Hamtramck  suggests  that  section  2  could  become  a  broader  source  of  assistance 
for  limited-English  proficient  voters  even  when  the  basis  for  the  discrimination 
is  race  or  membership  in  a  language  minority  group.  Section  2  also  carries  the 
advantage  of  being  applicable  to  any  jurisdiction,  regardless  of  the  size  of  a 
group's  population  within  the  jurisdiction.  However,  section  2  litigation  is 
limited  by  the  infrequency  of  cases  that  are  filed,  and  litigation-based  remedies 
have  inherent  constraints  because  they  require  specific  findings  of  discrimination 
and  do  not  extend  beyond  the  particular  defendants  bound  by  the  case. 

Section  208  differs  from  both  section  2  and  the  Act's  structural  language 
assistance  provisions  because  it  can  be  invoked  by  any  limited-English  proficient 
voter  and  is  not  confined  to  the  Act's  definition  of  "language  minorities." 
Section  208  states  in  part  that  "[a]ny  voter  who  requires  assistance  to  vote  by 
reason  of  blindness,  disability,  or  inability  to  read  or  write  may  be  given 
assistance  by  a  person  of  the  voter's  choice."69  Originally  designed  as  an 
accommodation  measure  for  disabled  voters,  this  section  has  been  applied  to 
limited-English  proficient  voters  who  require  assistance  to  understand  an 
English-only  ballot.70     Section  208  imposes  no  affirmative  obligations  on 


66.  See,  e.g.,  Complaint,  United  States  v.  Salem  Cnty.,  No.  l:08-cv-03726-JHR-AMD  (D. 
N.J.  July  24, 2008);  Amended  Complaint,  United  States  v.  City  of  Phila.,  No.  2:06-4592  (E.D.  Pa. 
April  26, 2007);  Complaint,  United  States  v.  Long  Cnty.,  No.  CV206-040  (S.D.  Ga.  Feb.  8, 2006); 
Complaint,  United  States  v.  City  of  Bos.,  No.  05- 1 1 598  WGY  (D.  Mass.  July  29, 2005);  Complaint, 
United  States  v.  City  of  Hamtramck,  No.  00-73541  (E.D.  Mich.  Aug.  4,  2000). 

67.  Complaint,  Hamtramck,  No.  00-73541. 

68.  Consent  Order  and  Decree,  Hamtramck,  No.  00-73541 . 

69.  42  U.S.C.  §  1973aa-6  (2006).  Section  208  contains  an  exception  precluding  an  assistor 
who  is  "the  voter's  employer  or  agent  of  that  employer  or  officer  or  agent  of  the  voter's  union." 
Id 

70.  The  legislative  history  of  section  208  highlights  some  of  the  parallels  between  disability 
and  limited-English  proficiency: 

Certain  discrete  groups  of  citizens  are  unable  to  exercise  their  rights  to  vote  without 
obtaining  assistance  in  voting  including  aid  within  the  voting  booth.   These  groups 


1 76  INDIANA  LAW  REVIEW  [Vol.  44: 1 6 1 


localities  to  provide  language  assistance,  but  it  does  allow  an  enforcement  action 
if  election  officials  impede  or  deny  a  voter's  access  to  an  assistor.71 

Section  208  has  the  potential  to  be  a  far-reaching  mechanism  for  enforcing 
language  rights  under  the  Voting  Rights  Act  because  it  applies  nationwide  and 
enables  any  limited-English  proficient  voter  to  receive  assistance  in  voting.72 
Section  208  also  allows  personalized  aid  because  the  voter  determines  who  will 
provide  the  assistance  and  what  will  be  needed  to  cast  a  meaningful  vote.  A 
major  problem  with  the  law,  however,  is  that  it  establishes  no  standards  on  the 
quality  of  assistance  provided  to  the  voter,  nor  does  it  impose  significant 
obligations  on  federal,  state,  or  local  governments.  The  costs  are  borne  almost 
entirely  by  the  private  assistor  and  the  affected  voter,  who  also  carries  the 
responsibility  of  arranging  the  assistance  in  the  first  place.  Election  officials 
primarily  assume  costs  for  training  staff  to  prevent  violations  of  the  law,  such  as 
denying  or  interfering  with  assistors;  localities  bear  no  real  costs  in  providing  aid 
to  voters. 

Read  together,  the  various  sections  of  the  Voting  Rights  Act  offer  a  mix  of 
language  rights  tools  with  significant  gaps — both  in  theory  and  in  practice.  The 
"language  minority"  definition  delimits  the  structural  remedies  of  the  Act,  but 
basic  barriers  persist  for  voters  whose  language  groups  fail  to  satisfy  the  Act's 
triggers  or  who  fall  outside  the  basic  definitions  needed  for  coverage.  Litigation 
under  section  2  offers  only  piecemeal  remedies,  and  the  personal  assistance 


include  the  blind,  the  disabled,  and  those  who  either  do  not  have  a  written  language  or 
who  are  unable  to  read  or  write  sufficiently  well  to  understand  the  election  material  and 
the  ballot.  Because  of  their  need  for  assistance,  members  of  these  groups  are  more 
susceptible  than  the  ordinary  voter  to  having  their  vote  unduly  influenced  or 
manipulated.  As  a  result,  members  of  such  groups  run  the  risk  that  they  will  be 
discriminated  against  at  the  polls  and  that  their  right  to  vote  in  state  and  federal  elections 
will  not  be  protected. 
S.  Rep.  No.  97-417,  at  53  (1982),  reprinted  in  1982  U.S.C.C.A.N.  177,  240,  1982  WL  25033. 

71.  See,  e.g.,  Consent  Decree,  Judgment,  and  Order,  United  States  v.  Fort  Bend  Cnty.,  No. 
4:09-cv-1058  (S.D.  Tex.  Apr.  13,  2009);  Settlement  Agreement,  City  ofPhila.,  No.  06-4592; 
Revised  Agreed  Settlement  Order,  United  States  v.  City  of  Springfield,  No.  06-30 1-23-MAP  (D. 
Mass.  Sept.  13,  2006);  Consent  Decree,  Judgment,  and  Order,  United  States  v.  Brazos  Cnty.,  No. 
H-06-2165  (S.D.  Tex.  June  27, 2006);  Order,  United  States  v.  Berks  Cnty.,  No.  03-CV-1030  (E.D. 
Pa.  Aug.  20,  2003);  United  States  v.  Miami-Dade  Cnty.,  No.  02-21698  (S.D.  Fla.  June  7,  2002). 
In  United  States  v.  Miami-Dade  County,  for  example,  Haitian  American  voters  who  needed 
assistance  in  Creole  were  denied  the  use  of  assistors,  and  even  when  assistance  was  allowed,  it  was 
often  limited  to  demonstrations  of  voting  procedures  outside  the  voting  booth.  Consent  Order  at 
2,  Miami-Dade  Cnty.,  No.  02-21698.  The  consent  decree's  requirements  included  training 
programs  for  poll  workers,  voter  education  policies,  and  the  employment  of  Creole-speaking 
election  employees  in  targeted  precincts.  Id.  at  5.  Haitian  Americans  are  covered  by  section  208 
even  though  they  fall  outside  the  Act's  formal  definition  of  language  minorities. 

72.  See  Terin  M.  Barbas,  Note,  We  Count  Too!  Ending  the  Disenfranchisement  of  Limited 
English  Proficiency  Voters,  37  Fla.  St.  U.  L.  Rev.  189, 204-08  (2009)  (suggesting  that  amending 
section  208  would  provide  an  optimal  solution  to  meeting  language  assistance  needs). 


2010]  LANGUAGE  ASSISTANCE  177 


available  to  voters  under  section  208  offers  a  weak  form  of  accommodation  that 
relieves  local  election  officials  of  any  significant  role.  As  the  next  Part 
illustrates,  several  states  and  local  governments  have  taken  a  more  active  role  in 
providing  language  assistance  and  have  implemented  measures  to  bridge  the  gaps 
in  federal  law. 

II.  State  and  Local  Language  Assistance  Policies 

Because  of  the  constraints  of  the  Act,  many  limited-English  proficient  voters 
continue  to  face  language  barriers  in  the  electoral  process.  A  number  of  state  and 
local  governments  have  developed  language  access  policies  to  address  voter 
needs,  but  the  responses  vary  widely.  Some  policies  simply  require  compliance 
with  the  Act73  or  parallel  federal  law,74  while  others  have  gone  beyond  the  Act's 
requirements  to  extend  assistance  to  multiple  language  groups.  State  and  local 
policies  have  arisen  in  a  variety  of  contexts:  as  responses  to  federal  litigation 
under  the  Act,  as  additions  to  extant  requirements  under  section  203,  and  as 
policy  initiatives  where  few  or  no  federal  mandates  are  in  place. 

A.  Federal  Litigation  and  Local  Remedies 

A  number  of  recent  lawsuits  have  served  as  catalysts  for  local  policies  that 
extend  language  assistance  beyond  the  requirements  of  the  Act.  For  instance, 
United  States  v.  San  Diego  County  involved  multiple  violations  of  section  203 
arising  out  of  San  Diego  County's  inadequate  language  assistance  to  Latino  and 
Filipino  American  voters,  which  included  "failing  to  provide  an  adequate  pool 
of  bilingual  poll  officials  .  .  .  failing  to  make  available  .  .  .  election-related 
announcements,  instructions,  and  notices  at  election  sites  .  .  .  [and]  failing  to 
translate  . . .  election-related  information"  on  the  registrar  of  voters'  website.75 
The  settlement  between  the  federal  government  and  the  county  included  a 
common  set  of  remedies  in  section  203  litigation:  translating  election  materials, 


73 .  See,  e.g. ,  Fla.  Stat.  Ann.  §101.2515  (West,  Westlaw  through  20 1 0  2d  Reg.  Sess.);  La. 
Rev.  Stat.  Ann.  §  18: 106(D)  (West,  Westlaw  through  2009  Reg.  Sess.);  R.I.  Gen.  Laws  Ann.  § 
17-19-54  (West,  Westlaw  through  Ch.  319  of  Jan.  2010  Sess.);  S.D.  CODIFIED  Laws  §  12-3-6 
(2010);  see  generally  Brian  J.  Sutherland,  The  Patchwork  of  State  and  Federal  Language 
Assistance  for  Minority  Voters  and  a  Proposal  for  Model  State  Legislation,  65  N.  Y.U.  Ann.  Surv. 
Am.  L.  323,  339-45  (2009). 

74.  Several  state  laws  offer  voter  assistor  guarantees  comparable  to  the  provisions  contained 
in  section  208  of  the  Voting  Rights  Act.  See,  e.g.,  Colo.  REV.  Stat.  §  1-7-1 12(l)(a)  (LEXIS 
through  2010  legislation);  Ga.  Code  Ann.  §  2 1  -2-409(a)  (20 1 0);  1 0  III.  Comp.  Stat.  Ann.  5/17-14 
(West,  Westlaw  through  2010  Reg.  Sess.);  Kan.  Stat.  Ann.  §  25-2909(a)  (2000  &  Supp.  2009); 
Mass.  Gen.  Laws  Ann.  ch.  54,  §  79  (West,  Westlaw  through  Ch.  347  of  2010  2d  Ann.  Sess.);  Tex. 
Elec.  Code  Ann.  §  64.031  (West,  Westlaw  through  2009  legislation);  Wis.  Stat.  Ann.  § 
6.82(2)(a)  (West,  Westlaw  through  2009  Act  406);  see  generally  Sutherland,  supra  note  73,  at  346- 
51. 

75.  Complaint  at  4,  United  States  v.  San  Diego  Cnty.,  No.  04-CV-1273IEG  (S.D.  Cal.  June 
23,  2004),  available  at  2004  WL  5690558. 


178  INDIANA  LAW  REVIEW  [Vol.  44:161 


hiring  bilingual  poll  workers,  distributing  multilingual  information,  hiring  a 
language-assistance  coordinator,  and  creating  a  community-based  advisory  body 
for  each  language.76 

Particularly  noteworthy  in  the  San  Diego  County  case,  however,  was  the 
voluntary  inclusion  of  Vietnamese  language  assistance  in  the  consent  decree, 
paralleling  the  terms  of  the  Spanish  and  Filipino  requirements  imposed  on  San 
Diego  County.  The  memorandum  of  agreement  stated  that  "the  2000  Census  also 
showed  a  Vietnamese-speaking  voting  age  population  with  limited-English 
proficiency  of  [9915],  or  only  85  below  the  10,000  person  statutory  threshold, 
and  San  Diego  County  wishes  to  serve  this  growing  community."77  Immediately 
after  the  county's  implementation  of  the  settlement  agreement,  the  effects  of  the 
language  assistance  were  significant:  Spanish  and  Filipino  registration  increased 
by  more  than  2 1  %  during  the  six-month  period  after  the  resolution  of  the  lawsuit, 
and  Vietnamese  registration  increased  by  more  than  37%.78  Moreover,  even 
though  the  settlement  agreement  expired  on  March  31,  2007,  and  San  Diego 
County  was  no  longer  obligated  to  provide  Vietnamese  language  assistance, 
election  officials  continued  to  provide  assistance  in  all  three  languages.79 

In  United  States  v.  City  of  Boston,  the  Department  of  Justice  asserted 
multiple  violations  of  the  Act  and  other  federal  laws  by  city  election  workers: 
treating  limited-English  proficient  Latino,  Chinese  American,  and  Vietnamese 
American  voters  disrespectfully;  refusing  to  permit  voters  to  be  aided  by  an 
assistor;  improperly  influencing,  coercing,  or  ignoring  voters'  ballot  choices;  and 
refusing  or  failing  to  provide  provisional  ballots.80  The  complaint  alleged 
violations  of  section  203,  but  only  with  respect  to  Spanish-speaking  voters;  the 
Chinese  and  Vietnamese  populations  were  not  large  enough  to  trigger  section  203 
coverage.81  Nevertheless,  the  remedies  in  the  consent  decree  included  guarantees 


76.  Memorandum  of  Agreement  at  2- 1 0,  San  Diego  Cnty. ,  No.  04-CV- 1 273IEG. 

77.  Id.  at  2. 

78.  See  H.R.  Rep.  No.  109-478,  at  12  (2006),  available  at  2006  WL  1403199.  Anecdotal 
evidence  also  supports  the  importance  of  language  assistance  in  promoting  voter  participation.  A 
former  chief  of  the  Department  of  Justice's  voting  section  relayed  the  following  anecdote  from  San 
Diego  County:  "A  Vietnamese  voter,  thrilled  to  find  a  Vietnamese-speaking  poll  worker,  exclaimed 
that  'America  is  the  greatest  country  in  the  world!  I'm  going  to  tell  everyone!'  The  voter  later 
brought  more  Vietnamese  voters  to  the  polls."  John  Tanner,  Federal  Enforcement  of  the  Language 
Assistance  Provisions,  in  TUCKER,  supra  note  45,  at  317-18. 

79.  Because  of  the  numbers  (the  2000  census  showed  the  Vietnamese  population  just  a  few 
citizens  short  of  the  10,000  benchmark,  and  the  population  is  highly  likely  to  satisfy  the  benchmark 
under  2010  census  data),  the  county  may  simply  have  been  anticipating  the  inevitable.  However, 
the  timing  of  the  settlement,  occurring  eight  years  prior  to  the  imposition  of  federal  mandates  in 
2012,  suggests  that  the  county  was  engaging  in  good  faith  efforts  to  satisfy  local  goals  of  serving 
the  Vietnamese  American  community,  and  not  simply  to  comply  early  with  federal  law. 

80.  Complaint  at  4-6,  United  States  v.  City  of  Bos.,  497  F.  Supp.  2d  263  (D.  Mass.  2007) 
(No.  05-11 598-WGY). 

8 1 .  Chinese  American  voting-age  citizens  in  Boston  numbered  9825 ;  Vietnamese  American 
voting-age  citizens  numbered  4220.  Id.  at  3. 


2010]  LANGUAGE  ASSISTANCE  179 


of  language  assistance  to  all  three  groups.82  The  inclusion  of  Vietnamese 
language  assistance  was  especially  notable  because  the  target  population  of 
Vietnamese  Americans  was  only  4220,  less  than  half  the  number  needed  to 
trigger  section  203  coverage. 

The  City  of  Boston  litigation  parallels  the  San  Diego  County  litigation  in 
several  ways,  with  a  variety  of  language  assistance  remedies  that  expanded  the 
city's  efforts  to  recruit  bilingual  Chinese  and  Vietnamese  poll  workers  for 
targeted  precincts.  Implementation  of  multilingual  assistance  has  been  more 
convoluted  in  Boston,  however,  because  of  state  and  local  politics  following  the 
expiration  of  the  consent  decree  in  2008.  In  2007,  both  the  Department  of  Justice 
and  community  groups  advocating  multilingual  assistance  supported  the 
translation  of  the  candidates'  names  on  ballots  into  Chinese  through 
"transliteration,"  a  procedure  by  which  names  are  converted  phonetically  from 
their  alphabetic  spelling  to  Chinese  characters.83  The  Massachusetts  Secretary 
of  the  Commonwealth  opposed  transliteration,  however,  and  a  federal  court 
declined  to  rule  that  transliteration  was  required  under  the  settlement 
agreement.84  The  Boston  City  Council  later  voted  to  pursue  a  home-rule  petition 
to  continue  Chinese  and  Vietnamese  language  assistance  in  federal  and  state 
elections.85  State  legislation  to  implement  the  home-rule  petition  was  eventually 
enacted  in  2010,  establishing  requirements  that  the  City  of  Boston  provide 
Chinese  assistance  (including  transliteration)  and  Vietnamese  assistance 
beginning  in  201 1.86 

B.  Near-Coverage  and  Anticipatory  Compliance 

The  City  of  San  Diego  and  City  of  Boston  lawsuits  illustrate  how  the 
institutional  power  of  the  Act,  coupled  with  federal  enforcement  and  local 
advocacy,  can  lead  jurisdictions  to  expand  language  assistance  efforts.87  Short 


82.  Memorandum  of  Agreement  and  Settlement  at  3,  City  of  Bos.,  497  F.  Supp.  2d  263. 

83.  See  Frank  Phillips,  Ballot  Translations  Could  Mean  Too  Much,  BOS.  GLOBE,  June  26, 
2007,  at  Al ;  Andrea  Stone,  Candidates  Lost  in  Chinese  Translation,  USA  TODAY,  July  1 1 ,  2007, 
at  A3. 

84.  See  Order,  City  of  Bos.,  497  F.  Supp.  2d  263;  Frank  Phillips,  Candidates'  Names  Won  7 
Be  Trans liter ated-Dispute  Centered  on  Chinese  Voters,  Bos.  GLOBE,  Aug.  8,  2007,  at  B2. 

85.  Maria  Sacchetti,  Fresh  Fight  Over  Bilingual  Ballots;  Council  to  Pursue  State  Law 
Ordering  Names  in  Chinese,  Bos.  GLOBE,  May  14,  2008,  at  Bl. 

86.  H.R.  4880,  186th  Leg.,  2d  Ann.  Sess.  (Mass.  2010). 

87.  A  parallel  development  is  the  maintenance  of  language  assistance  by  a  jurisdiction  even 
when  it  is  no  longer  required  to  provide  assistance  under  federal  law.  See  U.S.  Gen.  Accounting 
Office,  GAO/GGD-97-8 1 ,  Bilingual  Voting  Assistance:  Assistance  Provided  and  Costs 
1 5  (1 997),  available  at  http://www.gao.gOv/archive/l 997/gg9708 1  .pdf.  The  City  and  County  of 
San  Francisco,  for  example,  was  first  required  to  offer  assistance  in  Chinese  and  Spanish  in  the 
1970s,  but  it  was  not  obligated  under  federal  law  to  provide  assistance  in  either  language  during 
the  1 980s  or  in  Spanish  during  the  1 990s.  Election  officials  continued  to  provide  both  Chinese  and 
Spanish  language  assistance — including  trilingual  ballots — throughout  the  1980s  and  1990s.  Id. 


1 80  INDIANA  LAW  REVIEW  [Vol.  44: 1 6 1 


of  litigation,  a  number  of  local  governments  have  initiated  coverage  for  large  and 
politically  influential  language  groups  who  missed  coverage  under  the  Act  in  one 
census  cycle  but  were  likely  to  be  covered  in  the  future.  For  example,  during  the 
1990s,  California's  Santa  Clara  County  was  required  under  section  203  to 
provide  assistance  in  Spanish,  but  in  no  other  minority  languages,  even  though 
the  county  contained  one  of  the  nation's  largest  concentrations  of  Southeast 
Asian  immigrants  and  sizable  populations  of  other  Asian  American  groups. 
Assistance  to  Vietnamese  American  voters  was  a  particular  concern  because  the 
Vietnamese  American  figure  for  targeted  voting-age  citizens  fell  just  short  of  the 
10,000  numerical  benchmark  needed  to  trigger  section  203  coverage. 

Advocacy  by  local  civil  rights  groups  led  to  San  Jose  County  to  deploy 
multiple  stages  of  language  assistance.  In  1993,  the  county  voluntarily  printed 
ballots  translated  into  Vietnamese  and  mailed  bilingual  ballots  to  all  voters  who 
indicated  that  they  had  been  born  in  Vietnam.88  Following  an  assessment  of 
needs  and  recommendations  by  a  citizen  advisory  committee,89  as  well  as  the 
acknowledgement  of  "a  swell  of  new  citizens  from  mainland  China,  Hong  Kong 
and  Taiwan  during  the  [previous]  two  years,  and  requests  by  those  immigrants," 
the  registrar  of  voters  added  Chinese  language  translations  in  1996.90  After  the 
2000  census,  Santa  Clara  County  was  legally  mandated  under  section  203  to 
provide  assistance  in  Spanish,  Vietnamese,  Chinese,  and  Tagalog. 

Similar  developments  transpired  in  Los  Angeles  County  in  the  1990s. 
Beginning  in  1992,  Los  Angeles  County  was  required  to  offer  assistance  in  five 
languages:  Chinese,  Japanese,  Spanish,  Tagalog,  and  Vietnamese.  The  Korean 
language,  however,  was  not  included  because  the  Korean  American  illiteracy 
rate — measured  by  completion  of  a  fifth-grade  education,  not  by  English 
language  proficiency — did  not  exceed  the  national  average.  The  hurdle  of  a 
lower  illiteracy  rate  was  especially  vexing  for  the  local  community  because  the 
target  population  of  Korean  Americans  in  Los  Angeles  County  was  more  than 
double  the  number  necessary  to  trigger  section  203. 91  Unlike  Santa  Clara 
County,  however,  efforts  to  win  voluntary  assistance  in  Los  Angeles  County 
lasted  several  years,  even  though  Korean  Americans  had  a  strong  base  of 
community  advocates  and  numerous  surveys  demonstrated  high  rates  of  need  and 
interest  in  Korean  language  assistance.92  The  county  board  of  supervisors 
ultimately  voted  in  September  1998  to  begin  printing  election  materials  in 


After  the  2000  census  data  determinations,  both  Chinese  and  Spanish  were  mandated  under  section 
203  in  San  Francisco. 

88.  See  Glenn  D.  Magpantay,  Asian  American  Access  to  the  Vote:  The  Language  Assistance 
Provisions  (Section  203)  of  the  Voting  Rights  Act  and  Beyond,  1 1  ASIAN  L.J.  3 1,  52  (2004). 

89.  See  id. 

90.  Edwin  Garcia,  Demand  Rising  for  Non-English  Voting  Materials,  San  Jose  Mercury 
News,  Nov.  5,  1996,  at  4B  (quoting  Elma  Rosas  Martinez,  Spokeswoman,  Office  of  Santa  Clara 
Cnty.  Registrar  of  Voters). 

91.  Magpantay,  supra  note  88,  at  50  (noting  that  1990  census  data  showed  that  a  target 
population  of  21,61 1  Korean  American  citizens  resided  in  Los  Angeles  County). 

92.  Id. 


2010]  LANGUAGE  ASSISTANCE  181 


Korean.93  After  the  2002  determinations  of  section  203  coverage,  Los  Angeles 
County  was  legally  mandated  to  provide  assistance  in  Korean. 

Community  efforts  to  gain  voluntary  assistance,  however,  are  not  always 
entirely  successful.  In  1995,  the  New  York  City  Board  of  Elections  agreed  in 
response  to  local  advocacy  efforts  to  begin  adding  Korean  language  interpreters 
at  selected  precincts  in  Queens.94  Nonetheless,  the  board  declined  to  add  written 
translations  of  materials  into  Korean.  Despite  strong  community  support  for 
expanded  language  assistance,  the  board  even  resisted  offers  by  Korean 
American  community  groups  to  help  translate  basic  materials  such  as  voter 
registration  forms  and  voting  machine  instructions.  A  full  complement  of 
Korean  language  assistance  in  Queens  was  only  added  after  the  2002 
determinations  of  section  203  coverage. 

C.  State  and  Local  Policy  Initiatives 

Responding  to  community  advocacy  and  the  growth  of  immigrant 
populations,  several  states  and  cities  have  adopted  language  assistance  policies 
that  go  beyond  the  coverage  limits  of  the  Act.  States,  counties,  and  larger  cities 
typically  have  multiple  language  groups  that  receive  varying  levels  of  assistance 
based  on  the  size  of  the  language  group,  whereas  smaller  cities  and  suburbs  may 
have  immigrant  enclaves  composed  of  one  or  two  ethnic  groups  requiring 
focused  assistance.  A  number  of  local  policies  have  concentrated  on  providing 
voter  registration  forms  and  other  basic  informational  materials,  which  are 
available  in  print  and  on  websites.  Some  localities  have  gone  further  by  offering 
a  range  of  services,  including  the  translation  of  ballots  and  the  recruitment  of 
bilingual  poll  workers  to  assist  limited-English  proficient  voters  in  targeted 
precincts. 

1.  State  Laws  and  Practices . — A  number  of  states  have  adopted  laws  and 
policies  that  are  more  generous  than  the  Act  in  extending  assistance  to  language 
groups.95  Maine,  for  instance,  offers  ballot  instructions  in  French  to  voters  who 
request  the  translated  materials  from  local  election  officials.96  Over  5%  of 
Maine's  population  speaks  French,  and  the  state  has  a  history  of  past 
discrimination  involving  Francophone  immigrants  from  Canada.97  Other  states 
offer  assistance  based  on  statistical  formulas  that  trigger  coverage  at  a  lower 
level  than  section  203  of  the  Act.  In  California,  state  law  requires  that  in 
counties  where  3%  of  the  voting-age  citizens  "lack  sufficient  skill  in  English  to 
register  without  assistance,"  county  officials  must  make  reasonable  efforts  to 


93.  Supervisors  Move  to  Publish  Voter  Booklets  in  Korean,  L.A.  TIMES,  Sept.  16,  1998,  at 
4B. 

94.  See  Magpantay,  supra  note  88,  at  52. 

95.  See  Sutherland,  supra  note  73,  at  352-62. 

96.  See  Me.  Rev.  Stat.  Ann.  tit.  21 -A,  §  603(5)  (West,  Westlaw  through  2009  2d  Reg. 
Sess.). 

97.  See  Pam  Belluck,  Long  Scorned  in  Maine,  French  Has  Renaissance,  N.Y.  TIMES,  June 
4,  2006,  at  1.26. 


1 82  INDIANA  LAW  REVIEW  [Vol.  44: 1 6 1 


recruit  voting  registrars  who  are  fluent  in  the  language.98  A  similar  trigger 
applies  to  the  recruitment  of  bilingual  election  officials  for  non-English-speaking 
citizens  who  need  assistance  in  voting."  In  North  Carolina,  which  currently  has 
no  section  203  coverage  within  the  state,  any  county  or  municipality  whose 
Latino  population  is  at  least  6%  of  the  population  must  print  and  distribute 
Spanish  language  ballot  instructions.  10°  The  statistical  trigger  is  notably  generous 
because  it  is  based  on  the  total  population  of  Latinos  in  a  county  or  municipality, 
not  just  the  population  of  limited-English  proficient  voting-age  citizens. 

Extended  assistance  has  also  been  legislated  through  more  expansive 
definitions  of  language  groups  than  the  Act's  definition  of  "language 
minority."101  For  example,  in  the  District  of  Columbia,  which  currently  has  no 
section  203  obligations,  a  broader  definition  of  "non-English-speaking  person" 
is  employed  to  include  anyone  "whose  native  speaking  language  is  a  language 
other  than  English,  and  who  continues  to  use  his  or  her  native  language  as  his  or 
her  primary  means  of  oral  and  written  communication."102  The  District  goes  on 
to  require  written  language  assistance  in  election  wards  where  non-English- 
speaking  persons  are  5%  or  more  of  the  voting  population,  and  it  allows  the  D.C. 
Board  of  Elections  and  Ethics  to  establish  language  assistance  in  wards  with 
lower  percentages  of  non-English-speaking  persons.103 

As  matters  of  agency  practice,  secretaries  of  state  and  other  state  election 
administrators  have  voluntarily  offered  basic  informational  services  and  materials 
in  non-English  languages.   California's  secretary  of  state,  for  example,  offers 


98.  Cal.  Elec.  Code  §  2103(c)-(d)  (2009).  The  subsections  state  in  pertinent  part: 

(c)  It  is  also  the  intent  of  the  Legislature  that  non-English-speaking  citizens,  like  all 
other  citizens,  should  be  encouraged  to  vote.  Therefore,  appropriate  efforts  should  be 
made  to  minimize  obstacles  to  registration  by  citizens  who  lack  sufficient  skill  in 
English  to  register  without  assistance. 

(d)  Where  the  county  elections  official  finds  that  citizens  described  in  subdivision  (c) 
approximate  3  percent  or  more  of  the  voting  age  residents  of  a  precinct,  or  in  the  event 
that  interested  citizens  or  organizations  provide  information  which  the  county  elections 
official  believes  indicates  a  need  for  registration  assistance  for  qualified  citizens 
described  in  subdivision  (c),  the  county  elections  official  shall  make  reasonable  efforts 
to  recruit  deputy  registrars  who  are  fluent  in  a  language  used  by  citizens  described  in 
subdivision  (c)  and  in  English. 

99.  Id.  §  12303(b)-(c). 

100.  N.C.  Gen.  Stat.  §  163-165.5A  (LEXIS  through  2009  Reg.  Sess.). 

101.  See,  e.g.,  Colo.  Rev.  Stat.  §  1-2-202(4)  (LEXIS  through  2010  legislation)  (requiring 
the  county  clerk  and  recorder  to  recruit  bilingual  staff  members  if  3%  trigger  for  non-English- 
speaking  electors  is  met);  D.C.  Code  §  1-1031.01  (2010)  (defining  "non-English-speaking"  as  "a 
person  whose  native  speaking  language  is  a  language  other  than  English,  and  who  continues  to  use 
his  or  her  native  language  as  his  or  her  primary  means  of  oral  and  written  communication");  N.J. 
Rev.  Stat.  §19:1 2-7. 1  (b)  (20 1 0)  (requiring  voter  notices  to  be  printed  in  any  language  other  than 
English  if  1 0%  trigger  is  met). 

102.  D.C.  Code  §  1-1031.01. 

103.  Id.  §  l-1031.02(b). 


2010]  LANGUAGE  ASSISTANCE  183 


telephonic  assistance  and  written  materials  (voter  registration  forms,  voter 
guides,  and  ballot-by-mail  applications)  in  six  languages:  Chinese,  Japanese, 
Korean,  Spanish,  Tagalog,  and  Vietnamese.104  The  state  as  a  whole  is  only 
bound  by  federal  law  to  provide  assistance  in  Spanish.  In  the  State  of 
Washington,  which  has  three  counties  covered  for  Spanish  and  one  county 
covered  for  Chinese  under  section  203, 105  the  secretary  of  state  offers  voter 
registration  and  voter  informational  materials  in  seven  non-English  languages: 
Cambodian,  Chinese,  Korean,  Laotian,  Russian,  Spanish,  and  Vietnamese.106 
Minnesota  similarly  offers  voter  registration  materials  in  five  non-English 
languages — Hmong,  Russian,  Somali,  Spanish,  and  Vietnamese — even  though 
neither  the  state  nor  any  of  its  political  subdivisions  triggers  section  203  coverage 
and  neither  Russian  nor  Somali  falls  within  the  "language  minority"  definition 
of  the  Act.107  Furthermore,  several  state  election  offices  offer  websites108  that 
link  to  the  language  assistance  website  of  the  U.S.  Election  Assistance 
Commission,  which  offers  national  voter  registration  forms  in  Spanish  and  five 
Asian  languages.109 

Secretaries  of  state  have  also  engaged  in  significant  outreach  and  education 
efforts  to  increase  voter  participation.  For  example,  in  Connecticut,  where 
Spanish-language  assistance  is  required  in  a  number  of  urban  counties  under 
section  203,  the  secretary  of  state  engaged  in  an  extensive  voter  outreach  and 
registration  campaign  in  2008  to  increase  the  number  of  Latino  registered  voters 
statewide.  The  "jTu  Voto  Si  Cuenta!"  ("Your  Vote  Does  Count!")  program 
included  an  aggressive  Spanish-language  media  campaign  and  translated  voter 
education  materials  on  the  use  of  paper  ballots  with  new  optical  scan  technology 
and  on  proper  forms  of  identification  for  registering  and  voting.  The  "jTu  Voto 


104.  See  Multilingual  Voter  Services,  Cal.  Sec'YOFState,  http://www.sos.ca.gov/elections/ 
elections_multi.htm  (last  visited  Oct.  17,  2010). 

1 05 .  See  Voting  Rights  Act  Amendments  of  1 992,  Determinations  Under  Section  203,67  Fed. 
Reg.  48,871,  48,877  (July  26,  2002). 

1 06.  Elections  &  Voting,  Wash.  Sec'YOFState,  http://www.sos.wa.gov/elections  (last  visited 
Oct.  17,2010). 

107.  See  Voting  Information  in  Other  Languages,  MINN.  Sec'y  OF  STATE,  http://www.sos. 
state.mn.us/index.aspx?page=638  (last  visited  Oct.  17, 2010).  Voting  instructions  at  polling  sites 
were  first  offered  in  Minnesota  in  2002  in  three  languages:  Hmong,  Somali,  and  Spanish.  See 
Citizen  Outreach  Advisory  Taskforce  Urges  New  Citizens  to  Vote,  ASIAN  PAGES,  Nov.  14,  2002, 
at  6,  available  at  2002  WLNR  1 1553301. 

1 08.  See,  e.g. ,  Elections  Division,  Sec'yofMass.,  http://www.sec.state.ma.us/ele  (last  visited 
Oct.  17,  2010);  Forms  and  Publications,  Va.  State  Bd.  of  Elections,  http://www.sbe.  Virginia. 
gov/cms/Forms_Publications/Index.html  (last  visited  Oct.  17,  2010);  National  and  NC.  Voter 
Registration  Forms,  N.C.  STATE  Bd.  OF  ELECTIONS,  http://www.sboe.state.nc.us/content.aspx?id=48 
(last  visited  Oct.  17,  2010);  Voter  Registration,  R.I.  Bd.  OF  ELECTIONS,  http://www. 
elections.ri.gov/voting/registration.php  (last  visited  Oct.  17,  2010). 

1 09.  See  Register  to  Vote,  U.S.  Election  Assistance  Comm'n,  http://www.eac.gov/voter_ 
resources/registertovote.aspx  (last  visited  Oct.  1 7, 20 1 0)  (making  available  registration  forms  in 
Chinese,  English,  Japanese,  Korean,  Spanish,  Tagalog,  and  Vietnamese). 


1 84  INDIANA  LAW  REVIEW  [Vol.  44: 1 6 1 


Si  Cuenta!"  project  registered  over  21,000  new  voters,  more  than  double  the 
original  goal  of  the  campaign.110 

2.  Local  Policies  and  Practices . — A  wide  range  of  voluntary  policies  and 
practices  also  exists  at  the  county  and  city  levels.  Among  the  most  common 
efforts  are  recruitment  and  hiring  of  bilingual  staff  to  serve  as  poll  workers  in 
targeted  districts.  For  example,  several  jurisdictions  provided  voluntary 
assistance  to  Asian  American  voters  through  bilingual  interpreters  and  poll 
workers  during  the  November  2008  elections  as  follows:  Chicago  hired  election 
judges  who  spoke  Gujarati,  Hindi,  Korean,  Tagalog,  Urdu,  and  Vietnamese;  New 
Orleans  hired  Vietnamese  interpreters  and  election  commissioners;  Lowell, 
Massachusetts  hired  Khmer  and  Vietnamese  interpreters;  Quincy,  Massachusetts 
hired  Chinese  and  Vietnamese  poll  workers;  Middlesex,  New  Jersey  appointed 
Chinese,  Gujarati,  and  Hindi-speaking  poll  workers;  and  Philadelphia  appointed 
Chinese,  Khmer,  Korean,  and  Vietnamese  interpreters.111 

Another  common  practice  is  providing  translated  voter  registration  forms  and 
basic  voter  information  materials.  In  the  City  of  Cambridge,  Massachusetts, 
which  is  not  covered  by  section  203  in  any  language,  voter  registration  materials 
are  available  in  English  and  eight  other  languages:  Arabic,  Chinese,  Haitian 
Creole,  Korean,  Portuguese,  Russian,  Spanish,  and  Vietnamese.112  In 
Washington's  King  County,  which  includes  Seattle  and  is  only  required  under 
section  203  to  provide  assistance  in  Chinese,  voter  registration  materials  are  also 
available  in  Cambodian,  Korean,  Laotian,  Russian,  Spanish,  and  Vietnamese.113 
And  although  Los  Angeles  County  is  required  to  provide  language  assistance  in 
Spanish  and  five  Asian  languages,  it  also  offers  a  voter  information  brochure  that 
is  translated  into  Armenian,  Khmer,  and  Russian.114 

A  variation  on  these  local  policies  is  the  law  enacted  in  New  York  to  require 
Russian-language  assistance  in  New  York  City,  where  there  were  over  243,000 
individuals  of  Russian  ancestry  living  in  the  year  2000. 115  The  state  legislation 


1 10.  See  Jocelyn  F.  Benson,  State  Secretaries  of  State  93-94  (2010);  Press  Release, 
Susan  Bysiewicz,  Sec'y  of  the  State  of  Conn.,  Bysiewicz:  More  Than  21,000  Latinos  Become 
Newly  Registered  Voters  During  jTu  Voto  Si  Cuenta!  Campaign  (Oct.  29,  2008),  available  at 
http://www.sots.ct.gOv/sots/lib/sots/releases/2008/l  0.29. 08_tu_voto_si_cuenta_a_success.pdf  (last 
visited  Oct.  17,2010). 

111.  See  Lessons  Learned  from  the  2008  Election:  Hearing  Before  the  H.  Subcomm.  on  the 
Constitution,  Civil  Rights,  and  Civil  Liberties,  111th  Cong.  93  (2009)  (testimony  of  Glenn  D. 
Magpantay,  Staff  Attorney,  Asian  Am.  Legal  Defense  &  Educ.  Fund). 

112.  See  Voter  Registration,  CITY  OF  CAMBRIDGE  ELECTION  Comm'n,  http://www. 
cambridgema.gov/ELECTION/ProgramsServices.cfm  (last  visited  Oct.  17,  2010). 

113.  See  Voter  Registration,  KING  CNTY.  ELECTIONS,  http://www.kingcounty.gov/elections/ 
regi  strati  on.  aspx  (last  visited  Oct.  17,  2010). 

1 1 4.  See  L. A.  Cnty.  Registrar-Recorder/Cnty.  Clerk,  http://www.lavote.net  (last  visited 
Oct.  17,2010). 

115.  See  QT-P13.  Ancestry:  2000,  New  York  City,  New  York,  U.S.  CENSUS  BUREAU, 
http://factfinder.census.gov  (follow  "DATA  SETS"  hyperlink,  select  "Census  2000  Summary  File 
3,"  and  follow  "Enter  a  table  number"  hyperlink;  search  "QT-P13"  and  follow  "Go"  hyperlink; 


2010]  LANGUAGE  ASSISTANCE  185 


requires  Russian-language  assistance  in  every  city  in  the  state  that  has  a 
population  exceeding  one  million  people,  which  currently  applies  only  to  New 
York  City.116  The  law  requires  that  the  New  York  City  Board  of  Elections 
provide  information  in  Russian  on  its  website  and  that  the  board  produce  and 
disseminate  Russian-language  booklets  containing  voter  registration,  absentee 
ballot  instructions,  and  general  voter  information  citywide.117 

Providing  focused  language  assistance  to  an  immigrant  group  that  comprises 
a  sizable  portion  of  a  city's  population  is  a  recurring  theme  in  local 
policymaking.  For  example,  Florida's  Miami-Dade  County  has  required 
assistance  in  Creole  to  the  local  Haitian  American  community  since  2000. 
Because  it  contains  one  of  the  largest  Cuban  American  communities  in  the 
country,  Miami-Dade  has  been  required  under  section  203  to  provide  Spanish- 
language  assistance  since  the  mid-1970s.  The  Haitian  American  population  has 
become  a  major  segment  of  South  Florida's  population  as  well,  driven  by  the 
migration  of  refugees  and  other  immigrants  from  Haiti  since  the  1970s. 
According  to  2000  census  data,  the  Haitian  American  population  in  Miami -Dade 
County  numbered  over  95,000  and  constituted  4.2%  of  the  county's 
population.118 

In  1 999,  the  Miami-Dade  Board  of  County  Commissioners  unanimously 
passed  an  ordinance  which  requires  Creole  translations  to  be  posted  in  voting 
booths,  that  publicity  be  generated  in  appropriate  Creole-language  media,  and, 
as  appropriate,  that  ballots  be  translated  into  Creole. 1 19  When  extensive  problems 


select " Place"  under  "Select  a  geographic  type,"  then  select  "New  York"  and  then  "New  York 

city";  follow  "Add"  hyperlink,  then  follow  "Show  Result"  hyperlink)  (last  visited  Oct.  17,  2010). 

1 1 6.  Since  the  population  of  the  state's  next  largest  city,  Buffalo,  was  less  than  300,000  in  the 
year  2000,  it  is  unlikely  that  any  other  city  will  be  covered  in  the  near  future. 

117.  N.Y.  Elec.  Law  §  3-506  (McKinney  2009  &  Supp.  2010).  The  section  states: 

A  board  of  elections  in  a  city  of  over  one  million  shall  provide  the  same  information  in 
Russian  that  it  provides  in  languages  other  than  English  on  its  website.  It  shall  also 
produce  and  disseminate  citywide  a  booklet  that  includes:  (a)  a  voter  registration  form 
in  English  with  instructions  in  Russian;  (b)  instructions  in  Russian  regarding  the  criteria 
and  application  process  for  obtaining  an  absentee  ballot;  and  (c)  a  section  with  general 
voter  information  in  Russian  including  frequently  asked  questions.  Such  board  may 
include  other  languages  on  its  website  and  in  such  booklet. 

118.  See  QT-P13  Ancestry:  2000,  Miami-Dade  County,  Florida,  U.S.  CENSUS  BUREAU, 
http://factfinder.census.gov  (follow  "DATA  SETS"  hyperlink,  select  "Census  2000  Summary  File 
3,"  and  follow  "Enter  a  table  number"  hyperlink;  search  "QT-P13"  and  follow  "Go"  hyperlink; 
select " —  County"  under  "Select  a  geographic  type,"  then  select  "Florida"  and  then  "Miami-Dade 
County";  follow  "Add"  hyperlink,  then  follow  "Show  Result"  hyperlink)  (last  visited  Oct.  17, 
2010). 

1 19.  Miami-Dade  Cnty.,Fla.,  Code  of  Ordinances  §  12-16  (1999).  The  ordinance  states: 
(a)  In  those  precincts  in  which  the  Supervisor  of  Elections  determines  that  a  significant 
portion  of  the  electorate  is  Haitian- American,  the  Supervisor  of  Elections  shall  provide 
voting  booths  containing  Creole  translations  in  addition  to  booths  containing  Spanish 
translations. 


1 86  INDIANA  LAW  REVIEW  [Vol.  44: 161 


with  voter  assistance  arose  during  the  November  2000  election,  the  Department 
of  Justice  initiated  a  lawsuit  under  section  208 's  assistor  provisions  because 
Haitians  are  not  a  language  minority  group  under  section  203.  The  2002  consent 
decree  bolstered  the  original  Miami-Dade  language  assistance  policies  by  adding 
requirements  that  local  officials  engage  in  best  efforts  to  assign  bilingual  poll 
workers  to  assist  Haitian  voters  in  appropriate  precincts  and  make  multilingual 
ballots  available  at  every  polling  place  in  the  County.120  Nearby  Palm  Beach 
County  followed  Miami -Dade's  lead  and  began  providing  language  assistance  in 
Creole  in  2002;  Broward  County  added  Creole  assistance  in  2008. m 

Another  important  site  for  voluntary  language  assistance  has  been  Southern 
California,  where  several  cities  in  the  region  have  a  major  immigrant  group  that 
forms  a  significant  and  politically  active  segment  of  the  population.  Among  the 
first  cities  to  provide  language  assistance  to  groups  falling  outside  of  the  Act's 
mandatory  coverage  was  Monterey  Park,  whose  city  council  first  voted  to  print 
election  materials  in  Chinese  and  Spanish  in  1991.122  The  Chinese  American 
population  has  been  a  significant  political  bloc  within  Monterey  Park  since  the 
1980s;  at  the  time,  it  constituted  36%  of  the  city's  population  of  over  60,000.123 
Chinese  American  community  activists  played  a  key  role  in  the  enactment  of  the 
local  policy,  which  was  seen  as  an  important  tool  for  incorporating  local 
immigrant  populations  into  the  political  process.124  As  one  local  advocate 
commented  to  the  press,  "This  is  a  process  through  which  we  can  bring 
(immigrants)  into  the  mainstream  of  America  ...  to  bring  the  old  and  new 


(b)  In  those  elections  in  which  the  Supervisor  of  Elections  determines  that  it  is 
appropriate  to  provide  ballots  in  Creole,  those  ballots  shall  be  advertised  in  a  Creole 
language  newspaper  selected  by  the  Supervisor  of  Elections. 

(c)  The  provisions  of  this  ordinance  shall  apply  only  to  ballots  provided  at  voting  booths 
in  the  precincts  described  in  subsection  (a)  hereof  and  shall  apply  only  to  county-wide 
elections  and  other  appropriate  elections  as  determined  by  resolution  of  the  Board  of 
County  Commissioners. 

(d)  The  provisions  of  this  section  shall  become  operative  only  upon  a  written  finding 
provided  to  this  Board  by  the  Supervisor  of  Elections  that  a  certified  Creole  translator 
exists  who  can  perform  the  translations  mandated  by  this  section. 

The  board  of  county  commissioners  subsequently  passed  a  resolution  directing  the  supervisor  of 
elections  to  identify  precincts  in  Homestead  and  Florida  City  with  significant  Haitian  populations 
and  to  prepare  ballots  for  those  precincts.  See  Miami-Dade  Cnty.,  Fla.,  Res.  R-296-00  (2000). 

120.  Consent  Order  at  6,  United  States  v.  Miami-Dade  Cnty.,  No.  02-21698  (S.D.  Fla.  June 
1 7,  2002);  see  JoNel  Newman,  Ensuring  That  Florida 's  Language  Minorities  Have  Access  to  the 
Ballot,  36  Stetson  L.  Rev.  329,  361-62  (2007). 

121.  See  Alva  James- Johnson,  Creole  Ballots  on  Course  for  '08:  Elections  Officials  Aim  to 
Lure  More  Haitian-American  Voters  to  Polls,  S.  Fla.  Sun-Sentinel,  Apr.  7,  2007,  at  IB. 

1 22.  Irene  Chang,  City  Ballots  in  Chinese,  Spanish  Are  Approved,  L.A.  Times,  Dec.  1 2, 1 99 1 , 
atJ2. 

123.  Id. 

124.  Id. 


20 1 0]  LANGUAGE  ASSISTANCE  1 87 


together."125  Sam  Kiang,  the  mayor  of  Monterey  Park  who  sponsored  the 
measure,  added,  "This  is  something  that  will  encourage  more  participation  in  the 
democratic  system."126 

Similar  policies  have  developed  in  Southern  California  cities  with  substantial 
immigrant  populations,  including  Beverly  Hills  and  its  large  Iranian  American 
community  that  forms  approximately  one-quarter  of  the  city's  population.127  In 
the  year  2000,  Russian  Americans  made  up  nearly  14%  of  West  Hollywood's 
population  of  over  35,000;128  Armenian  Americans  constituted  nearly  28%  of 
Glendale's  population  of  nearly  200,000;129  and  over  20,000  Cambodian 
Americans — the  largest  Cambodian  community  in  the  United  States — formed  a 
sizable  portion  of  Long  Beach's  population  of  over  460,000. 13°  Each  of  these 
cities  has  relied  on  bilingual  poll  workers  for  several  years,  and  each  city  offers 
website  information  and  printed  election  materials  in  the  relevant  languages. 
These  cities  also  offer  fully  translated  sample  ballots  for  local  elections.131 
Additionally,  they  offer  a  variety  of  non-electoral  municipal  services  in  the 
targeted  language  and  provide  opportunities  for  participation  in  the  governance 
of  the  city.  For  example,  West  Hollywood  has  employed  a  bilingual  Russian 
outreach  coordinator  since  the  mid-1990s  and  since  2000  has  utilized  a  Russian 


125.  Id. 

126.  Id. 

127.  See  supra  notes  1-9  and  accompanying  text. 

128.  See  QT-PI3  Ancestry:  2000,  West  Hollywood  City,  California,  U.S.  CENSUS  BUREAU, 
http://factfmder.census.gov  (follow  "DATA  SETS"  hyperlink,  select  "Census  2000  Summary  File 
3,"  and  follow  "Enter  a  table  number"  hyperlink;  search  "QT-P13"  and  follow  "Go"  hyperlink; 
select  ".  .  .  .  Place"  under  "Select  a  geographic  type,"  then  select  "California"  and  then"West 
Hollywood  city";  follow  "Add"  hyperlink,  then  follow  "Show  Result"  hyperlink)  (last  visited  Oct. 
17,2010). 

129.  See  QT-P1S  Ancestry:  2000,  Glendale  City,  California,  U.S.  CENSUS  BUREAU, 
http://factfmder.census.gov  (follow  "DATA  SETS"  hyperlink,  select  "Census  2000  Summary  File 
3,"  and  follow  "Enter  a  table  number"  hyperlink;  search  "QT-P13"  and  follow  "Go"  hyperlink; 
select ". . . .  Place"  under  "Select  a  geographic  type,"  then  select  "California"  and  then  "Glendale 
city";  follow  "Add"  hyperlink,  then  follow  "Show  Result"  hyperlink)  (last  visited  Oct.  17,  2010). 

130.  See  DP-1  Profile  of  General  Demographic  Characteristics:  2000,  Long  Beach  City, 
California,  U.S.  Census  Bureau,  http://factfinder.census.gov  (follow  "DATA  SETS"  hyperlink, 
select  "Census  2000  Summary  File  2"  and  follow  "Enter  a  table  number"  hyperlink;  search  "DP- 1 " 
and  follow  "Go"  hyperlink;  select  ".  .  .  .  Place"  under  "Select  a  geographic  type,"  then  select 
"California"  and  then  "Long  Beach  city";  follow  "Add"  hyperlink,  then  follow  "Show  Result" 
hyperlink;  follow  "Population  Groups"  hyperlink  under  "Quick  Tables";  select  ".  .  Cambodian 
alone  or  in  any  combination,"  then  follow  "Add"  and  "Show  Result"  hyperlinks)  (last  visited  Oct. 
17,2010). 

131.  See  Election  Home  Page,  CITY  OF  LONG  BEACH  CITY  CLERK,  http://www.longbeach. 
gov/cityclerk/elections/default.asp  (last  visited  Oct.  17,  2010);  Election  Results,  City  OF  W. 
Hollywood,  http://www.weho.org/index.aspx?page=83  (last  visited  Oct.  17,  2010);  City  of 
Glendale,  CA  Election  Info,  Glendale  Votes,  http://www.glendalevotes.org  (last  visited  Oct.  1 7, 
2010). 


188  INDIANA  LAW  REVIEW  [Vol.  44:161 


advisory  board  that  makes  policy  recommendations  to  the  city  council.132 

Larger  cities  and  counties  typically  have  multiple  immigrant  populations 
whose  needs  are  addressed  through  a  range  of  policies.  Chicago,  for  example, 
has  provided  voting  assistance  in  several  languages  in  recent  years  and  employs 
a  tiered  approach  to  language  assistance  tied  to  the  relative  sizes  of  its  limited- 
English-speaking  populations.  As  the  major  city  within  Cook  County,  Chicago 
is  required  under  section  203  to  provide  language  assistance  in  Chinese  and 
Spanish.  The  Chicago  Board  of  Election  Commissioners  offers  several 
accommodations:  a  website  that  has  fully  translated  versions  in  three  languages 
other  than  English  (Chinese,  Polish,  and  Spanish);  oral  assistance  in  these  three 
languages  through  dedicated  telephone  lines;  and  voter  registration  forms  in  the 
three  languages  plus  Korean.133  In  addition,  the  city  provides  a  set  of  basic  voter 
information  materials  in  Arabic,  Assyrian,  Bosnian,  Croatian,  Gujarati,  Korean, 
Romanian,  Russian,  Serbian,  Tagalog,  Urdu,  and  Vietnamese,  and  it  recruits 
bilingual  election  judges  to  cover  these  languages.134 

The  City  of  Minneapolis  offers  voluntary  assistance  in  multiple 
languages — Hmong,  Somali,  and  Spanish — and  has  taken  a  broader  approach  to 
language  assistance  that  considers  translations  and  oral  assistance  provided  by 
local  government  as  a  whole.  Under  a  city  council  resolution  passed  in  2003,  a 
citywide  limited-English  proficiency  plan  was  developed  the  following  year  to 
create  strategies  for  assisting  multiple  language  groups  in  the  city.135  The  city 
clerk  later  developed  a  separate  plan  addressing  language  assistance  for  local 
voters,  including  the  recruitment  and  hiring  of  bilingual  poll  workers.136  The 
language  assistance  available  to  limited-English  proficient  voters  in  Minneapolis 
is  not  as  extensive  as  in  some  other  cities,  but  the  integration  of  voting  assistance 
with  other  city  services  has  promoted  a  number  of  benefits,  such  as  coordinated 
translations  of  services  in  Hmong,  Somali,  and  Spanish  through  specialized 
telephone  lines  and  the  city's  website.137 


132.  See  Russian  Outreach,  City  OF  W.  HOLLYWOOD,  http://www.weho.org/index. 
aspx?page=869  (last  visited  Oct.  17,  2010). 

1 33.  See  Bd.  of  Election  Comm'rs  for  the  City  of  Chi.,  http://chicagoelections.com  (last 
visited  Oct.  17,2010). 

134.  See  id. 

135.  See  City  of  Minneapolis,  Minneapolis  in  Any  Language:  Policies  and  Procedures 
to  Ensure  Equal  Access  to  City  Services  for  People  with  Limited  English  Proficiency  3, 
3  (Nov.  2004)  [hereinafter  Minneapolis  in  Any  Language],  available  at  http://www.ci. 
minneapolis.mn.us/policies/MplsLEPPlan.pdf  (last  visited  Oct.  17,  2010). 

136.  See  City  Of  Minneapolis,  City  Clerk's  Dep't  2007-201 1  Business  Plan  12  (2006), 
available  at  http://www.ci.minneapolis.mn.us/results-oriented-minneapolis/docs/ 
CityClerkBusinessPlan_2007.pdf  (last  visited  Oct.  17,  2010). 

137.  See  Elections  &  Voter  Registration,  CITY  OF  MINNEAPOLIS,  http://www.ci.minneapolis. 
mn.us/  elections  (last  visited  Oct.  17,  2010). 


2010]  LANGUAGE  ASSISTANCE  1 89 


D.  Patterns,  Problems,  and  Effective  Practices 

Each  state  and  local  government  that  engages  in  language  assistance  has  a 
nuanced  legal  and  political  environment,  and  I  have  made  no  attempt  to  engage 
in  a  detailed  political  investigation,  whether  through  case  studies  or  quantitative 
data  analyses,  that  might  provide  deeper  insights  into  the  formation  of  local 
policies.  Yet  it  is  clear  from  a  cursory  analysis  that  legal,  institutional,  and 
interest  group  pressures,  as  well  initiatives  of  state  and  local  election  officials, 
have  affected  the  expansion  of  voluntary  language  assistance  across 
governmental  bodies.  Many  of  the  jurisdictions  that  have  provided  voluntary 
services  to  a  language  group  that  is  not  covered  by  section  203  have  also  been 
required  to  provide  mandatory  language  assistance  to  at  least  one  group  that  is 
covered  by  the  Act.  Indeed,  several  jurisdictions  only  began  engaging  in 
voluntary  language  assistance  because  of  the  Act's  federal  requirements,  and 
community-based  advocacy  has  been  essential  to  spur  localities  to  expand 
language  assistance  to  other  groups. 

Institutional  pressures  stemming  from  the  enforcement  of  other  federal  anti- 
discrimination laws  have  also  played  a  role  in  local  governments'  adoption  of 
language  assistance  policies.  Title  VI  of  the  Civil  Rights  Act  of  1964  prohibits 
national  origin  discrimination  by  recipients  of  federal  funding,  and  along  with  its 
implementing  regulations,  mandates  that  recipients  provide  language 
accessibility.  Accordingly,  state  and  local  governments  receiving  federal  funds 
have  taken  steps  to  assist  limited-English  proficient  individuals  in  a  wide  range 
of  governmental  services.  The  Minneapolis  language  access  plan,  for  example, 
makes  clear  that  Title  VI  and  its  implementing  regulations  form  the  legal 
backbone  of  the  city 's  provision  of  services  to  limited-English  proficient  citizens, 
and  that  federal  law  requires  Minneapolis  to  "provide  meaningful  access  to 
services  for  city  residents  with  limited  English."138 

It  is  also  clear  that  state  and  local  policies  provide  tangible  benefits  to 
limited-English  proficient  voters  and  that  these  benefits  can  be  especially  useful 
for  language  groups  whose  voters  fall  outside  the  coverage  of  the  Act's  language 
assistance  provisions.  Some  of  the  policies,  such  as  the  procedures  used  in 
Chicago,  are  particularly  revealing  because  they  show  that  there  can  be  variations 
in  assistance  to  multiple  groups  depending  on  size  and  needs.  These  policies 
offer  more  flexibility  than  the  Act's  mandates,  which  guarantee  no  assistance  to 
groups  that  do  not  satisfy  the  Act's  statistical  triggers.  The  policies  are  also 
instructive  because  they  show  that  some  cities,  such  as  West  Hollywood  and 
Minneapolis,  are  adopting  more  comprehensive  measures  to  address  the  needs 
of  limited-English  proficient  individuals.  In  those  cities,  language  assistance  in 
voting  is  one  of  several  governmental  services  in  which  translations  and  other 
types  of  assistance  are  employed  to  eliminate  barriers  to  civic  participation. 

Nevertheless,  there  are  weaknesses  in  many  of  these  state  and  local  policies. 
Despite  large  immigrant  communities  within  their  boundaries,  some  cities  and 
counties  have  been  resistant  to  providing  a  full  array  of  language  assistance 


138.   See  Minneapolis  in  Any  Language,  supra  note  135,  at  10. 


1 90  INDIANA  LAW  REVIEW  [Vol.  44: 1 6 1 


measures.  Queens  County  in  New  York  offered  poll  worker  assistance  in  Korean 
in  the  mid-1990s,  but  written  translations  were  not  available  until  several  years 
later.  Los  Angeles  County  similarly  delayed  providing  written  language 
assistance  in  Korean  until  1998.  The  New  York  City  Board  of  Elections  and 
local  officials  did  not  originally  support  Russian-language  assistance  prior  to  the 
passage  of  a  state  law  in  2009. 139  This  legislation  was  necessary  to  require  the 
development  of  Russian  materials,  and  the  law  only  requires  the  board  to  develop 
basic  informational  materials,  not  to  provide  oral  assistance  or  fully  translated 
ballots. 

Moreover,  the  standards  for  many  forms  of  voluntary  assistance  are  not 
consistent,  and  local  requirements  are  often  less  rigorous  than  the  mandates  of 
the  Act.  State  and  local  policies  may  lack  clear  triggering  mechanisms  to 
determine  when  language  assistance  should  be  provided  in  the  first  place,  and 
although  some  local  governments  have  developed  tiers  of  services  for  multiple 
language  groups,  they  do  not  necessarily  articulate  the  numerical  criteria  used  to 
differentiate  among  language  groups.  State  and  local  election  policies  may  also 
lack  the  enforcement  machinery,  such  as  private  rights  of  action  and  civil  rights 
offices  charged  with  administrative  or  litigation  powers,  that  are  available  under 
federal  civil  rights  laws. 

Local  demographics  and  politics  vary  significantly,  but  optimal  legislation 
can  draw  on  both  federal  compliance  standards  and  leading  practices  at  the  state 
and  local  levels.  For  example,  in  response  to  weaknesses  in  federal  and  state 
law,  Brian  Sutherland  has  proposed  model  state  legislation  that  attempts  to 
address  problems  arising  in  the  current  constellation  of  election  policies.  Among 
the  recommendations  are  the  following:  (1)  creating  an  office  of  minority 
language  assistance  within  the  state's  chief  election  official's  office;  (2) 
developing  structural  solutions  to  coverage  formula  problems,  such  as  delegating 
authority  for  coverage  determinations  to  appropriate  agencies;  (3)  establishing 
relaxed  statistical  triggers  for  minority  group  coverage;  (4)  employing  annual  or 
biennial  coverage  determinations  to  address  demographic  changes;  (5)  amending 
state  assistor  laws  to  be  consistent  with  section  208;  and  (6)  drawing  on  the  Act's 
enforcement  structures  to  create  parallel  programs  at  the  state  level.140 

Localities  can  also  go  further  by  providing  a  sliding  scale  of  interpreter 
services  and  written  translations  based  on  group  size  and  need.  Costs  must  be 
considered  in  setting  any  language  assistance  standards,  but  addressing  voters' 
needs  may  not  be  unduly  burdensome  if  an  appropriate  range  of  mechanisms  is 
in  place.  For  instance,  cities  such  as  Cambridge  and  Chicago  have  opted  to  focus 
on  voter  registration  and  voter  information  pamphlets  to  provide  the  widest  array 
of  language  assistance  through  translated  forms — eight  languages  in  Cambridge, 
fifteen  in  Chicago.  Similarly,  the  recruitment  of  bilingual  poll  workers  is  a 
widespread  practice  that  can  cover  a  multitude  of  languages,  and,  if  done 
strategically,  without  large  additional  costs.  More  extensive  services  paralleling 


1 39.  See  Walter  Ruby,  Bloomberg  Blamed  for  Russian  Ballot  Failure,  JEWISH  Wk.  (July  27, 
2007),http://www.thejewishweekxonVnews^ 

140.  Sutherland,  supra  note  73,  at  364-79. 


2010]  LANGUAGE  ASSISTANCE  191 


section  203  compliance  can  then  be  reserved  for  the  largest  language  group 
populations. 

Cost  considerations  may  limit  services  to  smaller  language  groups,  but  even 
the  smallest  groups  can  receive  assistance  if  local  jurisdictions  provide  translated 
notices  that  inform  voters  of  their  right  to  use  individual  assistors  pursuant  to 
section  208  of  the  Act.  The  financial  costs  of  such  basic  notices  would  be 
minimal  if  they  entail  translating  a  small  number  of  sentences,  printing  them  on 
election  materials  designed  for  the  general  populace,  and  distributing  additional 
translated  materials  that  are  strategically  targeted  to  appropriate  language  groups. 
Oral  and  video  notices  could  also  be  distributed  via  recorded  public  service 
announcements,  websites,  or  community  organizations  that  work  closely  with  the 
relevant  populations. 

Moreover,  state  and  local  government  need  not  bear  all  of  the  costs  of 
language  assistance.  Federal  support  under  the  Help  America  Vote  Act 
(HAVA),141  which  offers  a  system  of  grants  and  government  payments  for 
language  assistance  to  be  incorporated  into  state  voting  systems,  provides  one 
basis  for  expanding  state  and  local  programs.142  The  U.S.  Election  Assistance 
Commission,  which  is  the  primary  agency  charged  with  implementing  HAVA, 
has  recognized  the  importance  of  language  assistance  and  has  itself  developed 
voter  education  and  voter  registration  materials  in  six  languages:  Chinese, 
Japanese,  Korean,  Spanish,  Tagalog,  and  Vietnamese.143  The  expansion  of 
HAVA  grants  and  materials  generated  through  the  Election  Assistance 
Commission  could  play  key  roles  in  the  growth  of  local  assistance  policies.144 

Although  states  and  localities  have  made  strides  in  addressing  the  needs  of 
limited-English  proficient  voters,  language  assistance  policies  nationwide  remain 
less  than  ideal.  Local  policies  can  be  easily  revised — or  even  repealed — and 
ongoing  debates  over  immigration  and  immigrants'  rights  suggest  that  local 
policymaking  can  quickly  shift  in  directions  that  disfavor  language  assistance. 
The  Iowa  Secretary  of  State,  for  example,  provided  voter  registration  forms  in 
Bosnian,  Laotian,  Spanish,  and  Vietnamese  on  its  website  until  2008,  when  a 
state  court  ruled  that  Iowa's  English-only  law,  known  as  the  Iowa  English 
Language  Reaffirmation  Act,145  prohibited  the  distribution  of  voter  materials  in 


141.  42  U.S.C.  §§  15301-15545  (2006  &  Supp.  2008). 

142.  HAVA  contains  provisions  for  payments  to  the  states  for  "[i]mproving  the  accessibility 
and  quantity  of  polling  places,  including  providing  physical  access  for  individuals  with  disabilities, 
providing  nonvisual  access  for  individuals  with  visual  impairments,  and  providing  assistance  to 
Native  Americans,  Alaska  Native  citizens,  and  to  individuals  with  limited  proficiency  in  the  English 
language."  Id.  §  15301(b)(1)(G). 

143.  See  Voting  Accessibility,  U.S.  ELECTION  ASSISTANCE  COMM'N,  http://www.eac.gov/ 
voterresources/votingaccessibility.aspx  (last  visited  Oct.  17,  2010). 

144.  For  a  discussion  of  some  of  the  limitations  of  HAVA,  see  Daniel  P.  Tokajs,  Early  Returns 
on  Election  Reform:  Discretion,  Disenfranchisement,  and  the  Help  America  Vote  Act,  73  GEO. 
Wash.  L.  Rev.  1206  (2005);  Daniel  P.  Tokaji,  The  Future  of  Election  Reform:  From  Rules  to 
Institutions,  28  YALE  L.  &  POL'Y  Rev.  125  (2009). 

1 45 .  Iowa  Code  §1.18  (West,  Westlaw  through  20 1 0  Reg.  Sess.).  The  law  requires  that  "the 


1 92  INDIANA  LAW  REVIEW  [Vol.  44: 1 6 1 


languages  other  than  English.146  And,  of  course,  many  localities  that  have  no 
obligations  under  the  Act  have  chosen  not  to  provide  voluntary  language 
assistance  at  all.  Nonetheless,  as  I  discuss  in  the  next  Part,  recent  developments 
in  state  and  local  election  policies  may  be  signaling  more  lasting  trends  in  anti- 
discrimination law  and  in  public  policies  addressing  civic  participation  and  the 
integration  of  immigrants  into  local  communities. 

III.  Trends  in  Voting  Rights,  Election  Administration, 
and  Language  Assistance 

The  expansion  of  local  language  assistance  policies  in  recent  years  reflects 
an  incremental  but  upward  trend  towards  greater  recognition  of  language 
differences  and  language  needs  in  voting  rights  jurisprudence.  Even  though  the 
Act  is  one  of  the  few  federal  statutes  to  address  language-based  discrimination 
explicitly  and  has  had  significant  and  lasting  effects  on  the  participation  of 
minorities  in  the  electoral  process,  its  provisions  are  largely  limited  to  remedying 
discrimination  against  specific  language  groups.  In  many  ways,  the  Act  lags 
behind  other  federal  anti-discrimination  policies  that  recognize  group  differences 
and  establish  governmental  obligations  to  address  these  differences.  Many  state 
and  local  policymakers  have  been  engaged  in  anti-discrimination  projects  to  fill 
the  gaps  that  Congress  has  declined  to  address  through  federal  legislation. 

Local  voting  policies  thus  offer  important  insights  into  the  evolving  nature 
of  language  rights,  anti-discrimination  law,  and  election  administration.  Most 
local  policies  have  not  been  enacted  to  correct  longstanding  educational  and 
electoral  discrimination  in  the  same  way  that  Congress  sought  to  create  structural 
remedies  within  the  Act.  Local  policies  have  instead  been  designed  to  address 
growing  community  needs  and  eliminate  barriers  to  political  participation  facing 
large  numbers  of  limited-English  proficient  citizens,  especially  immigrants  and 
the  elderly.  In  this  Part,  I  discuss  language  assistance  policies  as  evidence  of 
larger  trends  in  the  law  to  address  the  subordination  of  limited-English  proficient 
citizens  who  cannot  exercise  a  meaningful  vote  without  language  assistance  and, 
more  broadly,  to  promote  civic  engagement  and  political  participation  in 
communities  with  large  populations  of  immigrants. 

A.  Language  Accommodation  and  Local  Anti-discrimination  Law 

Although  they  are  not  always  framed  as  formal  civil  rights  laws,  local 
election  policies  reflect  an  expansion  of  anti-discrimination  norms  to  recognize 
language  differences  and  accommodate  those  differences  through  oral  and 


English  language  shall  be  the  language  of  government  in  Iowa"  and  that  "[a]  11  official  documents, 
regulations,  orders,  transactions,  proceedings,  programs,  meetings,  publications,  or  actions  taken 
or  issued  .  . .  [by  the  State]  . .  .  shall  be  in  the  English  language."  Id.  §  1.18(3). 

146.  King  v.  Mauro,  No.  CV6739  (Iowa  Dist.  Ct.,  Mar.  31,  2008);  see  also  Michael  A. 
Zuckerman,  Constitutional  Clash:  When  English-Only  Meets  Voting  Rights,  28  YALE  L.  &  Pol' Y 
Rev.  353(2010). 


2010]  LANGUAGE  ASSISTANCE  193 


written  assistance.147  The  accommodation  of  group  differences  is  already  an 
established  principle  that  operates  in  a  number  of  areas  of  anti-discrimination 
law,  particularly  in  federal  laws  requiring  "reasonable  accommodations"  to 
address  religious  discrimination  and  disability  discrimination  in  the  workplace.148 
The  voter  who  is  unable  to  understand  an  English-only  ballot,  but  who  could 
exercise  a  meaningful  vote  if  the  election  materials  were  available  in  another 
language,  is  not  unlike  the  disabled  individual  who  can  perform  the  essential 
functions  of  a  job  if  office  practices  or  equipment  are  modified,  or  who  can  cast 
a  vote  if  provided  access  to  polling  sites  and  offered  appropriate  voting 
technologies  to  accommodate  the  disability.149 

Accommodation  laws  function  as  a  form  of  anti-discrimination  enforcement 
distinct  from  traditional  civil  rights  laws  because  they  embody  a  "difference" 
model  rather  than  the  more  common  "sameness"  model  that  prohibits 
differentiation  on  the  basis  of  a  group  characteristic  or  trait.150  A  difference 
model  "assumes  that  individuals  who  possess  the  quality  or  trait  at  issue  are 
different  in  a  relevant  respect  from  individuals  who  don't  and  that  'treating  them 
similarly  can  itself  become  a  form  of  oppression.'"151  Accommodations  are  also 
bounded  by  cost-benefit  considerations  affecting  both  the  individual  requiring  an 
accommodation  and  the  entity  providing  the  accommodation.  Once  a  group- 
based  difference  is  recognized,  there  is  a  legal  duty  to  provide  an  appropriate 
accommodation,  but  only  up  to  the  point  that  the  provider  faces  no  undue 
hardship.152 

Standards  for  language  accommodation,  although  not  as  thoroughly 
developed  as  the  reasonable  accommodation  standards  in  religion  and  disability 
discrimination  statutes,  do  have  a  basis  in  federal  case  law  and  agency 
regulations.  Interpretations  of  Title  VI  of  the  Civil  Rights  Act  of  1964,  along 
with  its  implementing  regulations  and  compliance  guidelines,  recognize  that 
failure  to  address  language  barriers  among  recipients  of  federal  funding  can  be 


147.  I  have  argued  previously  that  the  accommodation  of  language  differences  is  an  ascendant 
trend  in  federal  voting  rights  jurisprudence.  See  generally  Ancheta,  supra  note  1 1 . 

148.  See,  e.g.,  42  U.S.C.  §  121 1 1  (2006  &  Supp.  2010)  (describing  standards  and  forms  of 
disability-based  reasonable  accommodations  within  the  Americans  with  Disabilities  Act);  29  C.F.R. 
§  1605.2  (2010)  (regulating  the  reasonable  accommodations  necessary  to  prevent  religion-based 
employment  discrimination  under  Title  VII  of  the  Civil  Rights  Act  of  1964). 

149.  See  Daniel  P.  Tokaji  &  Ruth  Colker,  Absentee  Voting  by  People  with  Disabilities: 
Promoting  Access  and  Integrity,  38  McGEORGE  L.  Rev.  1015  (2007);  Michael  Waterstone, 
Constitutional  and  Statutory  Voting  Rights  for  People  with  Disabilities,  14  STAN.  L.&Pol'y  Rev. 
353  (2003). 

150.  See  Pamela  S .  Karlan  &  George  Rutherglen,  Disabilities,  Discrimination,  and  Reasonable 
Accommodation,  46  DukeL.J.  1,  10  (1996). 

151.  Id. 

152.  See,  e.g.,  Trans  World  Airlines,  Inc.  v.  Hardison,  432  U.S.  63,  84  (1977)  (holding  that 
religious  accommodations  need  only  be  made  when  costs  are  small  and  that  anything  "more  than 
a  de  minimis  cost"  would  impose  an  undue  hardship). 


194  INDIANA  LAW  REVIEW  [Vol.  44: 161 


a  form  of  national  origin  discrimination  requiring  action  by  the  recipient.153  In 
Lau  v.  Nichols,  the  U.S.  Supreme  Court  linked  language  access  to  national  origin 
discrimination  when  it  concluded  that  the  failure  to  provide  English  instruction 
to  non-English-speaking  Chinese  American  students  in  San  Francisco  public 
schools  violated  Title  VI  regulations.154  Guidelines  to  the  regulations  stated,  in 
part,  that  "[w]here  inability  to  speak  and  understand  the  English  language 
excludes  national  origin-minority  group  children  from  effective  participation  in 
the  educational  program  offered  by  a  school  district,  the  district  must  take 
affirmative  steps  to  rectify  the  language  deficiency.  .  .  ."155  Implicit  in  the  Lau 
Court's  reasoning  was  the  recognition  of  a  significant  group-based  difference  that 
resulted  in  a  deprivation  of  rights  based  on  that  difference — specifically,  the 
Chinese  American  students'  inability  to  understand  English  led  to  discrimination 
resulting  from  the  government's  failure  to  take  adequate  steps  to  instruct  the 
children  in  English  and  other  basic  subjects.156 

Issued  by  President  Clinton  in  2000,  Executive  Order  1 3, 1 66  expands  on  the 
notion  of  accommodation  within  Title  VI  through  compliance  standards  that 
require  federal  agencies  and  recipients  of  federal  funding  to  ensure  that  limited- 
English  proficient  individuals  receive  meaningful  access  to  programs  through 
appropriate  forms  of  assistance. 157  In  coordination  with  Executive  Order  1 3, 1 66, 
the  Department  of  Justice  issued  guidelines  that  do  not  rely  on  a  fixed  trigger  like 
the  Act.  Instead,  they  weigh  group  size  and  interests  against  the  costs  of 
providing  language-appropriate  services.  Federal  agencies  and  recipients  of 
funding  are  required  under  agency  regulations  to  balance  multiple  factors:  (1) 
the  number  or  proportion  of  limited-English  proficient  persons  to  be  served;  (2) 
the  frequency  with  which  these  individuals  come  in  contact  with  the  program;  (3) 
the  nature  and  importance  of  the  program  or  service  to  people's  lives;  and  (4)  the 
costs  and  resources  available  to  the  recipient.158 

Employing  these  guidelines,  agencies  and  recipients  of  federal  funds  provide 
oral  interpretation  services  and  written  translations  when  they  are  justified,  but 
in  some  instances  the  balance  may  tip  in  favor  of  providing  minimal  assistance. 
This  is  especially  true  when  the  group  is  small,  the  interest  is  less  important,  and 
the  costs  significantly  outweigh  the  benefits.   For  instance,  guidelines  for  one 


153.  42  U.S.C.  §§  2000d-2000d-4a  (2006). 

154.  414  U.S.  563,  566-68(1974). 

155.  Id.  at  568  (quoting  Identification  of  Discrimination  and  Denial  of  Services  on  the  Basis 
of  National  Origin,  35  Fed.  Reg.  11,595  (July  18,  1970)). 

1 56.  The  Lau  decision  led  to  the  passage  of  the  Equal  Educational  Opportunities  Act  of  1 974, 
20  U.S.C.  §§  1701-1721  (2006),  which  states  in  part:  "No  State  shall  deny  equal  educational 
opportunity  to  an  individual  on  account  of  his  or  her  race,  color,  sex,  or  national  origin,  by  . .  .  the 
failure  by  an  educational  agency  to  take  appropriate  action  to  overcome  language  barriers  that 
impede  equal  participation  by  its  students  in  its  instructional  programs."  Id.  §  1703(f). 

157.  Exec.  Order  No.  13,166,  3  C.F.R.  §  289,  290  (2001). 

158.  Enforcement  of  Title  VI  of  the  Civil  Rights  Act  of  1 964 — National  Origin  Discrimination 
Against  Persons  with  Limited  English  Proficiency;  Policy  Guidance,  65  Fed.  Reg.  50,123,  50,124- 
25  (Aug.  16,2000). 


2010]  LANGUAGE  ASSISTANCE  195 


federal  agency  contemplate  a  mix  of  services,  including  on-site  bilingual  staff, 
commercial  telephone  translation  services,  use  of  family  members  or  friends  for 
oral  interpretation,  and  complete,  partial,  or  summary  translations  in  the  case  of 
written  materials.159  Unfortunately,  Executive  Order  13,166  has  not  been  a 
significant  source  of  voting  rights  enforcement  even  though  large  amounts  of 
federal  funding  flow  to  state  governments  to  finance  election  reforms  via  laws 
such  as  the  Help  America  Vote  Act.160 

Election  policies  can  nonetheless  encompass  the  difference  principle  inherent 
in  accommodation  laws,  and  they  can  employ  language  assistance  measures  that 
address  barriers  to  voting  while  still  allocating  fair  and  appropriate  costs  to  the 
government.  Indeed,  a  weak  form  of  language  accommodation  already  exists  in 
section  208  of  the  Act,  which  recognizes  the  legally  significant  difference  of 
being  an  illiterate  or  limited-English  proficient  voter  and  accommodates  that 
difference  by  guaranteeing  the  voter's  right  to  have  a  personal  assistor.161 
Although  they  are  not  asked  to  bear  the  costs  of  providing  assistors,  local 
governments  can  be  held  liable  for  denying  assistance  to  voters  who  need  the 
help  to  cast  a  meaningful  vote.162 

Local  language  assistance  policies  reflect  even  more  robust  forms  of 
language  accommodation.  These  policies  typically  recognize  the  basic  difference 
that  attaches  to  limited-English  proficiency  by  acknowledging  that  voters  who 
lack  the  skills  necessary  to  fully  comprehend  English-only  election  materials  face 
barriers  to  participation  in  the  electoral  process.  Local  governments 
accommodate  these  differences  in  a  variety  of  ways  through  language  assistance, 
including  oral  interpretation  and  translations  of  various  written  election 
materials.  Election  policies  also  balance  the  hardships  of  providing 
accommodations  by  limiting  both  the  forms  of  assistance  and  the  number  of 
language  groups  receiving  assistance.  Oral  assistance  and  written  translations  are 


159.  Guidance  to  Federal  Financial  Assistance  Recipients  Regarding  Title  VI  Prohibition 
Against  National  Origin  Discrimination  Affecting  Limited  English  Proficient  Persons,  68  Fed.  Reg. 
47,3 1 1 ,  47,3 15-19  (Aug.  8, 2003)  (providing  guidelines  for  U.S.  Department  of  Health  and  Human 
Services). 

160.  42  U.S.C.  §§  15301-15545  (2006  &  Supp.  2008);  36  U.S.C.  §§  152601-152612. 
Government  enforcement  of  Title  VI  against  local  election  officials  has  largely  fallen  between  the 
cracks  of  agency  responsibility;  the  Voting  Section  of  the  Department  of  Justice  does  not  enforce 
Title  VI  against  state  or  local  governments,  and  other  sections  of  the  federal  government  that 
address  program  access  for  limited-English  proficient  individuals  do  not  enforce  voting-related 
claims. 

161.  42  U.S.C.  §  1973aa-6  (2006).  The  Act's  structural  remedies  are  also  manifestations  of 
an  accommodation  norm,  but  they  are  constrained  by  the  requirement  of  past  discrimination  against 
enumerated  groups  and  the  triggering  mechanisms  that  limit  coverage.  The  "difference"  recognized 
in  sections  4(f)(4)  and  203  of  the  Act  is  cabined  by  the  definition  of  language  minorities,  and 
measurements  of  hardships  on  government  are  implicitly  assessed  through  statistical  triggers  that 
impose  full  duties  on  government  to  provide  assistance  if  they  are  satisfied,  but  no  duties  if  the 
triggers  are  not  met.  Id.  §  1973b. 

162.  See  supra  note  71  (citing  U.S.  Department  of  Justice  litigation  to  enforce  §  208). 


1 96  INDIANA  LAW  REVIEW  [Vol.  44: 1 6 1 


not  necessarily  offered  to  every  limited-English  proficient  voter  who  needs  aid, 
but  there  are  often  gradations  in  assistance.  Section  203,  in  contrast,  requires 
either  full  language  assistance  to  a  specified  language  minority  group  covered  by 
the  Act  or  no  assistance  at  all. 

Many  local  language  assistance  policies  are  thus  more  closely  aligned  to  the 
meaningful  access  standards  under  Executive  Order  1 3, 1 66  than  to  the  structural 
remedies  of  the  Act,  and  they  offer  more  flexible  forms  of  language 
accommodation  that  reach  a  wider  scope  of  limited-English  proficient  voters. 
The  City  of  Chicago,  for  example,  limits  full  translations  of  its  written  ballots  to 
the  two  languages  required  under  the  Act,  offers  translated  versions  of  its  website 
in  three  languages,  and  provides  links  to  voter  information  pamphlets  in  an 
additional  twelve  languages.163  Similarly,  Los  Angeles  County  provides  full 
written  and  oral  assistance  in  Spanish  and  four  Asian  languages  pursuant  to 
section  203,  but  the  county  also  distributes  a  voter  information  brochure  that  is 
translated  into  three  non-required  languages.  Armenian,  Khmer,  and  Russian.164 

More  than  a  few  language  assistance  policies  have  arisen  through  the  actions 
of  state  or  local  election  officials,  rather  than  through  the  creation  of  legally 
enforceable  civil  rights  and  governmental  duties.  The  enforcement  of  language 
accommodations  may  therefore  be  problematic  in  practice.  Nevertheless,  the 
simple  acknowledgement  of  language  differences  and  the  affirmative  steps  taken 
by  many  state  and  local  election  officials  reflect  an  extension  of  anti- 
discrimination norms  beyond  the  basic  remedial  rationales  contained  in  the  Act. 
The  growth  in  state  and  local  laws  sends  a  clear  signal  to  both  the  federal 
government  and  other  states  and  municipalities  that  language  accommodation  can 
and  should  be  expanded,  whether  through  stronger  enforcement  of  federal 
policies  such  as  Title  VI  and  Executive  Order  13,166  or  greater  voting 
accommodations  by  states,  counties,  and  cities. 

B.  Language  Assistance  and  Civic  Engagement 

The  provision  of  language  assistance  to  limited-English  proficient  voters  is 
not  merely  a  matter  of  anti-discrimination  enforcement;  it  cannot  be  isolated  from 
a  set  of  larger  debates  over  the  role  of  non-English  languages  in  public  life  and 
the  responsibilities  of  government  in  promoting  the  civic  engagement  of 
immigrants.  Disputes  over  language  assistance  in  elections  have  been  especially 
contentious  because  of  polar  views  on  the  rights  and  responsibilities  of  voters 
who  are  naturalized  citizens,  and  the  various  arguments  have  been  covered  in 
great  detail  in  both  policy  debates  and  legal  and  social  science  literature.165 
Critics  argue  that  English  proficiency  is  a  core  element  of  American  citizenship 


163.  Bd.  of  Election  Comm'rs  for  the  City  of  Chi.,  supra  note  133. 

1 64.  See  L.A.  Cnty.  Registrar-Recorder/Cnty.  Clerk,  supra  note  1 14. 

165.  See  generally  Schmidt,  supra  note  12;  Cristina  M.  Rodriguez,  Language  and 
Participation,  94  Cal.  L.  Rev.  687  (2006)  [hereinafter  Rodriguez,  Language  and  Participation]; 
Cristina  M.  Rodriguez,  Accommodating  Linguistic  Difference:  Toward  a  Comprehensive  Theory 
of  Language  Rights  in  the  United  States,  36  Harv.  C.R.-C.L.  L.  Rev.  133  (2001). 


20 1 0]  LANGUAGE  ASSISTANCE  1 97 


and  point  to  the  basic  requirements  for  naturalization,  which,  except  for  cases 
involving  long-term  elderly  residents,  include  English  literacy.166  Critics  further 
suggest  that  language  assistance  generally  diminishes  the  role  of  English  as  a 
civic  unifier  and  deters  immigrants  from  learning  English  in  the  first  place.167  In 
contrast,  supporters  of  language  rights  invoke  basic  values  of  democratic 
participation  and  contend  that  public  policies  should  support  multiple  objectives, 
such  as  encouraging  transitional  language  assistance  and  increasing  opportunities 
for  English-language  acquisition  to  incorporate  the  limited-English  proficient 
into  American  society.168  In  spite  of  this  debate,  an  increasing  number  of  state 
and  local  governments  have  opted  to  provide  voluntary  language  assistance  as 
part  of  larger  agendas  to  promote  civic  engagement  and  immigrants'  participation 
in  the  political  process.  Language  access  policies  adopted  in  cities  such  as  West 
Hollywood,  Minneapolis,  and  San  Francisco  provide  useful  examples. 

Approximately  one  in  seven  residents  in  California's  City  of  West 
Hollywood  is  Russian  American,169  and  the  local  Russian  population  plays  a 
significant  role  in  the  city's  political,  social,  and  cultural  life.  In  order  to 
coordinate  key  bilingual  services  to  the  local  population,  West  Hollywood  has 
employed  a  full-time  bilingual  Russian  outreach  coordinator  in  its  department  of 
public  safety  and  community  services  since  1995  and  has  utilized  an  active 
Russian  advisory  board  that  makes  policy  recommendations  to  the  city  council 
since  2000. 170  Composed  of  eleven  Russian  speakers  appointed  by  the  city 
council,  the  advisory  board  provides  information  on  issues  relating  to  the 
development  and  coordination  of  services  to  the  Russian  American  community 
and  makes  recommendations  to  the  city  council  on  programs  and  policies  that 
could  benefit  West  Hollywood's  Russian-speaking  residents.171  Among  its 
primary  goals  is  ensuring  that  "new  immigrants  participate  actively  in  the  civic 
life  of  the  City,"  which  West  Hollywood  has  accomplished  by  providing 
"translation  services,  familiarization  with  the  inner  workings  of  local 
government,  assistance  in  obtaining  City  and  social  services,  and  special  cultural 
events."172  Voting  assistance  is  just  one  of  several  governmental  services  offered 
in  Russian.173 

In  Minneapolis,  where  growth  of  the  Hmong,  Latino,  Somali,  and  other 
immigrant  communities  has  created  an  increasingly  diverse  population,  language 
assistance  in  voting  is  a  key  element  of  a  centralized  plan  to  provide  multilingual 
assistance  in  a  range  of  city  services.  The  "Minneapolis  in  Any  Language"  plan 
was  developed  in  2004  in  response  to  a  city  council  mandate  to  address  language 


166.  8  U.S.C.  §  1423(a)(1)  (2006). 

167.  See  generally  Perea,  supra  note  12;  SCHMIDT,  supra  note  12. 

168.  See  Rodriguez,  Language  and  Participation,  supra  note  1 65 . 

169.  See  QT-P 13  Ancestry:  2000,  West  Hollywood  City,  California,  supra  note  128. 

170.  Russian  Outreach,  supra  note  132. 

171.  Russian  Advisory  Board,  CITY  OF  W.  HOLLYWOOD,   http://www.weho.org/index. 
aspx?page=731  (last  visited  Oct.  17,2010). 

172.  Russian  Outreach,  supra  note  132. 

1 73 .  Election  Results,  supra  note  131. 


198  INDIANA  LAW  REVIEW  [Vol.  44:161 


needs  among  the  city's  multiple  immigrant  populations.174  Designed  both  as  a 
Title  VI  compliance  measure  and  as  a  civic  engagement  tool,  the  plan  contains 
a  clear  commitment  to  the  elimination  of  language  barriers,  a  commitment  that 
"stems  from  overall  city  goals  of  responsive  government,  community 
engagement,  and  customer  service."175  The  plan  also  states  that  "[a]s  residents, 
workers  or  visitors  who  contribute  to  city  life,  people  with  limited  English 
proficiency  are  entitled  to  fair  and  equal  access  to  service,"  reflecting  the  plan's 
parallel  anti-discrimination  objectives.176  The  plan  contains  detailed 
implementation  guidelines,  including  formulas  for  language  coverage,  timelines 
for  city  departments — including  the  city  clerk's  office,  which  is  charged  with  the 
administration  of  local  elections — to  develop  departmental  implementation  plans, 
and  overall  oversight  by  the  city's  multicultural  services  coordinator,  housed  in 
the  Minneapolis  Department  of  Civil  Rights.177  Services  such  as  language  lines 
and  translated  websites  cut  across  areas,  including  voter  assistance,  to  cover 
Hmong,  Somali,  and  Spanish.178 

The  City  and  County  of  San  Francisco  have  a  longstanding  commitment  to 
recognizing  immigrants'  civil  rights  and  coordinating  multilingual  services. 
Election  officials  there  have  employed  trilingual  ballots  in  Chinese,  English,  and 
Spanish  since  the  1 970s.  In  addition,  the  city  and  county  provide  translated  voter 
education  materials  to  other  immigrant  groups.  San  Francisco's  fifteen-member 
immigrant  rights  commission  was  created  in  1997  as  an  advisory  body  to  the 
mayor  and  the  board  of  supervisors  with  a  mission  to  "[i]mprove[,]  enhance[], 
and  preserve[]  the  quality  of  life  and  civic  participation  of  all  immigrants  in  the 
City  and  County  of  San  Francisco."179  The  commission  has  oversight  over  the 
implementation  of  San  Francisco's  language  access  ordinance,  which  was 
originally  enacted  in  2001  as  a  broad  language  rights  policy  designed  to 
guarantee  that  municipal  services,  including  services  in  the  department  of 
elections,  are  accessible  to  limited-English-speaking  residents.180  The  language 
access  ordinance  contains  coverage  formulas  paralleling  the  Act's  section  203 
provisions,  but  it  makes  them  applicable  to  any  language  group. 181  The  ordinance 
also  contains  a  full  set  of  implementation  measures:  oral  assistance  and  written 
translations  of  city  documents;  dissemination  of  multilingual  state  and  federal 


1 74.  Minneapolis  in  Any  Language,  supra  note  1 35,  at  1 0. 

175.  Id.  at  4. 

176.  Id. 

177.  Mat  39-42. 

178.  Id.  at  42. 

179.  City  &  Cnty.  of  S.F.  Immigrant  Rights  Comm'n,  http://www.sfgov2.org/index. 
aspx?page=120  (last  visited  Oct.  17,  2010). 

180.  S.F.,  Cal.,  Admin.  Code  §§  91.1-18  (municode  current  through  March  2010).  The  law 
was  originally  called  the  Equal  Access  to  Services  Ordinance  but  was  renamed  in  2009.  S.F.,  Cal. 
Ordinance  202-09  (Aug.  28,  2009). 

181.  S.F.,  Cal.,  Admin.  Code  §  91.2.  Section  91.2(k)  defines  a  "Substantial  Number  of 
Limited  English  Speaking  Persons"  as  "either  10,000  City  residents,  or  5  percent  of  those  persons 
who  use  the  Department's  services."  Id. 


2010]  LANGUAGE  ASSISTANCE  199 


documents;  compliance  plans  for  individual  city  departments;  and  enforcement 
mechanisms  and  complaint  procedures  for  the  public.182  The  San  Francisco 
Office  of  Civic  Engagement  and  Immigrant  Affairs,  an  administrative  arm  of 
local  government,  serves  as  a  centralized  infrastructure  for  providing  technical 
assistance  and  coordinating  language  services  across  departments.183 

Not  all  states  and  cities  that  provide  language  assistance  to  voters  employ 
immigrant  advisory  bodies  or  comprehensive  language  rights  plans,  but  the 
growth  of  immigrant  populations  has  necessitated  the  coordination  of  services  to 
local  residents,  whether  they  are  voters  or  non-citizens.  Voter  education  and 
electoral  assistance  have  become  two  of  the  many  manifestations  of  language 
policies  and  practices  that  promote  the  civic  engagement  of  limited-English 
proficient  populations.  Immigrant  communities  will  continue  to  expand 
throughout  the  country,  but  local  governments  will  ultimately  face  difficult 
choices  in  how  they  incorporate  limited-English-speaking  immigrants  into  civic 
life.  Indeed,  the  future  of  many  cities  and  suburbs  may  turn  on  whether  local 
governments  opt  to  be  more  inclusive  and  tolerant  of  language  differences  or 
whether  they  choose  to  employ  English-only  laws  and  other  policies  that  lead  to 
linguistic  exclusion  and  disenfranchisement. 

Conclusion 

State  and  local  language  assistance  policies  have  proven  to  be  important 
complements  to  the  structural  remedies  of  the  Act,  but  the  needs  of  many  voters 
requiring  oral  assistance  and  translations  of  election  materials  may  still  be 
unaddressed  or  underserved.  The  obligation  to  meet  these  needs  should  be  one 
shared  by  all  levels  of  government,  but  whether  more  jurisdictions  ultimately 
choose  to  take  on  these  responsibilities  remains  to  be  seen.  Nevertheless,  as 
immigrant  populations  continue  to  grow  and  more  local  governments  move 
toward  developing  election  policies  that  include  language  assistance  for  their 
limited-English  proficient  citizens,  the  norms  of  language  accommodation  should 
solidify  and  extend  to  more  jurisdictions.  Congress  and  the  federal  government 
may  in  time  follow  the  lead  of  local  governments  and  begin  treating  language 
assistance  as  an  essential  practice  that  ensures  meaningful  access  to  the  vote 
rather  than  merely  as  a  remedy  for  past  discrimination.  Local  voting  rights  laws 
will  no  doubt  continue  to  fuel  an  agenda  that  envisions  accommodation  and  civic 
engagement  policies  as  critical  investments  in  the  nation's  future. 


182.  Id.  §§91.4-11. 

183.  Id.  §91.14. 


Reinventing  Voting  Rights  Preclearance 


Kareem  U.  Crayton* 


"The  law  was  never  passed 
But  somehow  all  men  feel  they're  truly  free  at  last 
Have  we  really  gone  this  far  through  space  and  time, 
Or  is  this  a  vision  in  my  mind?"1 

"[W]e  cannot  chase  our  highest  ideals  unless  they  are  grounded  in 
workable,  practical,  responsible  self-governance."2 

Introduction 

The  more  things  change  with  Voting  Rights  Act  (VRA)  politics,  the  more 
they  seem  stubbornly  stuck  in  place.  When  President  Bush  signed  into  law  the 
Voting  Rights  Act  Reauthorization  and  Amendments  Act  of  2006,  observers 
marked  the  moment  as  a  political  triumph.3  Given  the  long  odds  of  passing  the 
legislation,  there  was  surely  good  reason  to  celebrate.  Each  of  the  law's  previous 
renewals  occurred  when  Democrats  controlled  at  least  one  chamber  of  Congress.4 
During  the  previous  renewal  in  1 982,  House  Democrats  managed  to  move  the  bill 
through  a  Republican  Senate  with  compromises  that  ultimately  won  the 
President's  support.5  Few  expected  that  a  process  dominated  by  Republicans 
would  produce  a  civil  rights  statute  that  conservatives  often  assailed  for 


*   Professor  of  Law,  The  University  of  North  Carolina  School  of  Law. 

1 .  Stevie  Wonder,  Visions,  on  INNERVISIONS  (Motown  Records  1973). 

2.  Vice  President  Albert  Gore,  Remarks  at  the  International  Reinventing  Government 
Conference  (Jan.  14,  1999)  (transcript  available  at  http://govinfo.library.unt.edu/npr/newsroom/ 
interego.html). 

3.  42  U.S.C.  §  1973c  (2006).  At  the  official  signing  ceremony  for  the  VRA  extension, 
President  Bush  was  joined  by  a  delegation  of  civil  rights  leaders,  some  of  whom  were  present  at  the 
initial  signing  of  the  legislation  by  President  Johnson  in  1965.  See  Laurie  Collier  Hillstrom, 
Defining  Moments:  The  Voting  Rights  Act  of  1965,  at  122-23  (2009);  Hamil  R.  Harris  &  Michael 
Abramowitz,  Bush  Signs  Voting  Rights  Act  Extension;  President  Vows  to  Build  on  'Legal  Equality' 
Won  in  Civil  Rights  Era,  WASH.  POST,  July  28, 2006,  at  A3 ;  E.  W.  Kenworthy,  Johnson  Signs  Voting 
Rights  Bill,  Orders  Immediate  Enforcement;  4  Suits  Will  Challenge  Poll  Tax,  N.  Y.  TIMES,  Aug.  7, 
1965,  at  1,  available  at  http://partners.nytimes.com/library/national/race/080765race-ra.html. 

4.  The  most  relevant  temporary  provisions  of  the  Voting  Rights  Act  were  extended  by 
Congress  in  1970,  1975,  and  1982.  See  Nathaniel  Persily,  The  Promise  and  Pitfalls  of  the  New 
Voting  Rights  Act,  1 17  Yale  L.J.  174,  179-80  (2007).  In  some  of  these  instances,  Congress  did 
enact  important  substantive  changes,  such  as  extending  these  protections  to  new  jurisdictions  and 
to  protect  new  groups  of  citizens.  However,  the  thrust  of  the  debate  around  these  amendments 
largely  followed  the  template  of  concerns  first  raised  by  opponents  in  1965.  See  id. 

5.  See  generally  J.  Morgan  Kousser,  The  Voting  Rights  Act  and  the  Two  Reconstructions, 
in  Controversies  in  Minority  Voting:  The  Voting  Rights  Act  in  Perspective  135  (Bernard 
Grofman  &  Chandler  Davidson  eds.,  1992). 


202  INDIANA  LAW  REVIEW  [Vol.  44:201 


offending  principles  of  color-blindness  and  federalism. 

This  latest  VRA  extension  effort  was  largely  characterized  by  a  defensive 
strategy.  Supporters  mostly  concerned  themselves  with  preserving  the  rules 
collectively  known  as  the  "preclearance"  regime6 — the  administrative  oversight 
system  originally  crafted  to  assure  that  state  and  local  jurisdictions  with  a  history 
of  government-ratified  racial  discrimination  do  not  violate  the  Fifteenth 
Amendment's  racial  fairness  principle.7  Most  observers  agree  that  during  the  last 
forty  years  of  its  enforcement,  the  preclearance  regime  has  promoted 
improvements  in  political  participation  and  office-holding  for  racial  minority 
groups  and  their  preferred  candidates.8  Relying  heavily  on  these  and  other 
factual  findings,  overwhelming  bipartisan  majorities  in  both  houses  of  Congress 
ultimately  agreed  to  reauthorize  the  oversight  system  for  another  twenty-five 
years.9 

The  architects  of  the  2006  legislation  deserve  great  credit  for  passing  a  bill 
in  a  largely  unfriendly  political  context.  However,  their  largely  preservative 
strategy  carried  with  it  an  important  practical  substantive  cost.  By  limiting 
changes  to  eliminating  the  most  politically  offensive  judicial  interventions  of  the 
law,  Congress  essentially  left  in  place  some  pathologies  that  have  plagued  the 
system  during  the  last  few  decades.  More  importantly,  the  renewal  process  again 
has  left  crucial  questions  about  the  system's  ends  and  means  unanswered.  Forty 
years  into  the  "temporary"  era  of  federal  administrative  review  of  state  election 
systems,  Congress  has  avoided  the  two  most  vexing  questions  about  the 
preclearance  system:  When,  if  ever,  should  this  oversight  structure  reach  its  end- 
point?  And  if  there  is  to  be  an  end,  how  will  we  know  when  we  have  reached  it? 

This  Article  offers  a  conceptual  framework  called  "reinventing"  preclearance 


6.  Throughout  this  Article,  I  use  the  terms  "preclearance"  and  "Section  5"  to  refer  to  a  broad 
set  of  provisions  in  the  Voting  Rights  Act  that  define  a  special  remedy  that  protects  racial  minority 
against  the  enactment  of  new  laws  and  practices  that  would  deny  or  abridge  the  right  to  vote  with 
respect  to  race.  I  describe  the  preclearance  remedy  at  greater  length  in  later  sections,  but  it  is 
helpful  to  speak  with  precision  at  this  stage.  The  term  "preclearance"  refers  to  the  special  remedy 
that  "freezes"  existing  voting  laws  in  certain  designated  state  and  local  jurisdictions  with  a  pattern 
of  depressed  participation  in  the  electoral  arena.  See  Reno  v.  Bossier  Parish  Sch.  Bd.  {Bossier  II), 
528  U.S.  320,  323  (2000).  In  order  to  make  changes  to  existing  law,  the  jurisdiction  must  receive 
permission  from  the  Justice  Department  or  the  U.S.  District  Court  in  Washington  D.C.  Id.  In  either 
case,  the  state  must  show  that  its  proposed  change  "does  not  have  the  purpose  and  will  not  have  the 
effect  of  denying  or  diluting  the  right  to  vote  on  account  of  race  or  color."  Id.  at  328  (quoting  42 
U.S.C.  §  1973c  (2006)).. 

7.  U.S.  Const,  amend.  XV,  §  1  ("The  right  of  citizens  of  the  United  States  to  vote  shall  not 
be  denied  or  abridged  by  the  United  States  or  by  any  State  on  account  of  race,  color,  or  previous 
condition  of  servitude."). 

8 .  See  generally  Quiet  Revolution  in  the  South  (Chandler  Davidson  &  Bernard  Grofman 
eds.,  1994)  (offering  an  empirical  assessment  of  state  level  political  advancement  for  minority 
communities  as  a  result  of  the  VRA's  adoption  and  enforcement). 

9.  See  Fannie  Lou  Hamer,  Rosa  Parks,  and  Coretta  Scott  King  Voting  Rights  Act 
Reauthorization  and  Amendments  Act  of  2006,  Pub.  L.  No.  109-246,120  Stat.  577. 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  203 


that  responds  to  these  pathologies  and  helps  to  address  these  perplexing 
questions.  Taking  the  reorganization  of  basic  governing  structures  as  a  starting 
point,  this  Article  proposes  adjustments  to  Section  5  that  provide  a  more  clear, 
effective,  and  lasting  means  of  enforcing  voting  rights.  Distinct  from  other 
reform  proposals,  reinvention  identifies  and  embraces  a  specific  systemic 
aim — transforming  political  institutions.  The  key  to  this  proposal  is  its  practical 
benefits  for  both  sides  in  the  current  preclearance  debate.  The  idea  satisfies  the 
conservative  goal  of  reducing  federal  presence  in  a  traditionally  state-run  area  of 
policymaking.  At  the  same  time,  reinventing  preclearance  also  provides  some 
assurances  to  those  who  favor  more  robust  tools  of  voting  rights  enforcement 
than  those  that  exist  under  the  current  regime. 

Part  I  of  this  Article  reviews  some  of  the  major  pathologies  associated  with 
the  current  preclearance  process.  Despite  its  many  benefits  and  positive  results, 
the  review  process  in  Section  5  imposes  particular  burdens  on  each  of  the  major 
stakeholders  in  covered  jurisdictions.  Some  of  these  pathologies  result  from  the 
intentional  policy  choices  by  Congress  and  the  courts  in  framing  the  VRA,  while 
others  are  unintentional  consequences  of  the  ground-level  actors  who  are 
involved  in  the  development  and  management  of  local  elections.  Today,  very 
few  people  are  entirely  satisfied  with  how  the  contemporary  system  works,  even 
though  the  recent  extension  of  the  VRA  was  vigorously  defended  by  civil  rights 
advocates. 

Part  II  points  out  that  the  result  of  the  most  recent  legislative  amendments 
left  many  of  these  pathologies  unaddressed.  This  Part  addresses  some  of  the 
academic  criticism  highlighting  the  most  crucial  issues  that  Congress  either 
ignored  or  sidestepped  in  2006.  For  fear  of  dismantling  an  already  fragile 
bipartisan  majority  favoring  renewal,  preclearance  supporters  focused  their 
energy  on  undoing  the  most  troubling  judicial  interpretations  of  the  statute.  The 
extension  of  the  statute  missed  an  opportunity  to  address  important  long-term 
questions  about  the  VRA,  which  the  Supreme  Court  provocatively  noted  in 
Northwest  Austin  Municipal  Utility  District  Number  One  (NAMUDNO)  v. 
Holder }Q  These  developments  provide  salient  reasons  for  Congress  to  revisit  its 
fashioning  of  the  preclearance  system. 

Part  III  presents  the  theoretical  grounding  for  an  invitation  to  commence  a 
new  approach  to  preclearance.  It  lays  out  the  concept  of  "reinventing" 
preclearance  in  greater  detail,  focusing  on  its  sensitivity  to  local  agency  concerns. 
Drawing  partly  on  the  role  that  the  National  Partnership  for  Reinventing 
Government  played  in  streamlining  federal  regulation  in  the  1990s,  this  part 
suggests  how  traditional  reinvention  has  insights  relevant  to  preclearance 
politics.  In  contrast  to  legislative  efforts  that  only  tinker  with  the  existing 
structure  of  the  preclearance  system,  "reinventing"  the  preclearance  regime 
requires  a  deeper,  more  fundamental  examination  of  the  remedy's  purposes  and 
methods.  A  more  ambitious  and  likely  more  fruitful  approach  is  to  start  from  the 


10.  129  S.  Ct.  2504, 251 1-12  (2009)  (noting  that  the  VRA  data  are  thirty-five  years  old  and 
that  conditions  have  significantly  improved  since  the  Court  upheld  provisions  of  the  VRA  in  the 
past). 


204  INDIANA  LAW  REVIEW  [Vol.  44:201 


principle  that  the  preclearance  mechanism  has  to  focus  on  the  goal  of 
transforming  political  structures  in  state  and  local  governments. 

Finally,  Part  IV  offers  some  specific  ideas  about  how  a  reinvented 
preclearance  system  can  operate  in  practice.  To  demonstrate  that  this  idea  is  both 
politically  viable  and  practically  effective,  I  offer  examples  of  flexible  provisions 
that  Congress  might  adopt  to  achieve  the  goal  of  reinventing  the  preclearance 
system.  While  not  every  state  needs  to  adopt  an  identical  reform,  this  example 
of  innovative  lawmaking  at  the  state  level  can  effect  a  substantial  improvement 
in  the  protections  for  minorities. 

I.  Three  Preclearance  Pathologies 

A.  Preclearance  101:  A  Primer  on  the  Current  System 

The  terms  "preclearance  system"  and  "Section  5"  both  refer  to  a  set  of 
administrative  processes  found  in  the  VRA  designed  to  remedy  racial 
discrimination  in  the  political  arena.1 '  For  designated  places,  the  provision  calls 
for  prior  review  of  proposed  changes  in  state  and  local  election  law  by  the  federal 
government.12  Preclearance  is  a  specific  response  to  years  of  evasion  of  federal 
court  orders  and  executive  enforcement  actions  by  Southern  jurisdictions.13 
Congress  resolved  to  end  this  evasive  behavior  by  effectively  "freezing"  local 
election  laws  and  placing  federal  officials  in  an  oversight  role.14  Some  courts 
have  characterized  the  preclearance  system  as  the  "shield"  of  the  VRA,  which 
protects  voters  against  future  practices  and  procedures  that  would  enact  new 
forms  of  discrimination  in  the  election  arena.15 

There  are  numerous  details  that  would  be  covered  in  any  comprehensive 
discussion  of  the  internal  workings  of  this  provision,  but  a  basic  understanding 
for  present  purposes  requires  attention  to  its  three  major  components  of  the 
provision — its  trigger,  its  scope,  and  its  standard  of  review.16  Elsewhere,  I  have 
employed  these  three  concepts  to  expound  at  greater  length  on  the  peculiar  ways 
that  the  preclearance  remedy  has  evolved  over  time  due  to  a  series  of  related 


11.  See  Bossier  II,  528  U.S.  at  323.  See  generally  HlLLSTROM,  supra  note  3,  at  75-123 
(outlining  the  events  leading  up  to  the  VRA's  passage  and  its  subsequent  amendments). 

12.  See  Bossier  II,  528  U.S.  at  323. 

13.  See  South  Carolina  v.  Katzenbach,  383  U.S.  301, 336  (1966)  (noting  that  "voting  officials 
have  persistently  employed  a  variety  of  procedural  tactics  to  deny  Negroes  the  franchise,  often  in 
direct  defiance  or  evasion  of  federal  court  decrees"). 

14.  See  generally  Quiet  REVOLUTION  IN  the  SOUTH,  supra  note  8,  at  30-32;  Kousser,  supra 
note  5. 

15.  See,  e.g.,  Katzenbach,  383  U.S.  at  318.  The  Supreme  Court  noted  that  "Congress  had 
reason  to  suppose  that"  states  covered  by  the  VRA  might  continue  resorting  to  "the  extraordinary 
stratagem  of  contriving  new  rules  of  various  kinds  for  the  sole  purpose  of  perpetuating  voting 
discrimination  in  the  face  of  adverse  federal  court  decrees.  Id.  at  335. 

1 6.  See  Kareem  U.  Crayton,  Interactive  Pre-Clearance  Development,  27  St.  LOUIS  U.  Pub. 
L.Rev.  319,  324-40(2008). 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  205 


legislative  and  judicial  interventions.17 

The  first  element  of  the  remedy  is  its  triggering  mechanism.  Unlike  the  civil 
litigation  remedy  of  the  VRA  contained  in  Section  2,  the  preclearance  system 
identifies  parts  of  the  country  where  Congress  originally  observed  a  heightened 
pattern  of  evasion.18  The  text  of  the  statute  says  a  great  deal  about  the  targeted 
places  where  the  law  applies.19  Its  triggering  formula  relies  upon  objective, 
voting-related  factors  to  specify  "covered"  jurisdictions.  For  a  state  or  local 
entity  to  fall  within  the  ambit  of  the  system,  federal  officials  must  find  two 
things:  (1)  that  a  state's  laws  contain  one  of  a  limited  set  of  voting  prerequisites; 
and  (2)  that  registration  and  participation  rates  in  certain  national  elections  fall 
below  a  threshold  percentage  of  the  voting  age  population.20  Congress  has 
gradually  expanded  the  reach  of  the  triggering  provision  since  1965,  bringing 
much  of  the  Southwest  (and  with  it,  attention  to  language  discrimination)  into  the 
preclearance  regime.21 

If  a  state  or  local  jurisdiction  is  deemed  subject  to  the  system,  the  statute 
imposes  a  submission  requirement.22  Specifically,  the  law  mandates  that  all 
proposed  changes  in  laws  related  to  voting  be  presented  to  federal  officials  for 
review  and  approval.23  For  most  of  the  last  four  decades,  the  courts  have 
construed  the  scope  of  "election-related  law"  relatively  broadly.24  No  such 
legislation  that  is  adopted  in  a  covered  jurisdiction  may  be  enforced  without  the 
permission  of  the  federal  government.25  This  provision  of  the  VRA  shifts  the 
balance  of  authority  between  state  and  federal  government,  since  election 
management  is  traditionally  an  area  of  control  for  the  states.26  Even  after  the 
normal  legislative  process  has  been  completed  in  a  covered  state,  local  officials 


17.  See  id 

18.  See  Holder  v.  Hall,  512  U.S.  874,  884  n.2  (1994)  (comparing  the  application  of  Section 
2  to  Section  5). 

19.  See  42  U.S.C.  §  1973b(a)  (2006  &  Supp.  2008). 

20.  Crayton,  supra  note  16,  at  325-26. 

21.  See  Samuel  Issacharoff  et  al.  ,  The  Law  of  Democracy :  Legal  Structure  of  the 
Political  Process  470-71  (3d  ed.  2007)  (noting  that  many  Southwestern  states  had  to  provide 
bilingual  election  materials  in  order  to  comply  with  Section  5). 

22.  See  Crayton,  supra  note  16,  at  329. 

23.  See  id. 

24.  See  Allen  v.  State  Bd.  of  Elections,  393  U.S.  544,  566  (1969)  ("Congress  intended  to 
reach  any  state  enactment  which  altered  the  election  law  of  a  covered  [s]tate  in  even  a  minor  way."); 
Crayton,  supra  note  16,  at  330. 

25.  42  U.S.C.  §  1973b  (2006  &  Supp.  2008). 

26.  See  Nw.  Austin  Mun.  Util.  Dist.  No.  One  v.  Holder,  1 29  S.  Ct.  2504, 25 1 1  (2009)  (noting 
that  Section  5  "authorizes  federal  intrusion  into  sensitive  areas  of  state  and  local  policymaking 
[and]  imposes  substantial  'federalism  costs' . . .  that  have  caused  [m]  embers  of  this  Court  to  express 
serious  misgivings  about  the  constitutionality  of  §  5")  (internal  quotations  and  citations  omitted); 
South  Carolina  v.  Katzenbach,  383  U.S.  301,  334  (1966)  (noting  that  preclearance  is  an 
"uncommon  exercise  of  congressional  power").  But  see  Presley  v.  Etowah  Cnty.  Comm'n,  502 
U.S.  491  (1992). 


206  INDIANA  LAW  REVIEW  [Vol.  44:201 


must  present  their  proposal  to  either  the  Department  of  Justice  or  the  U.S. 
District  Court  in  Washington,  D.C.  for  approval.27 

The  substantive  heart  of  the  preclearance  process  is  the  standard  that  federal 
officers  use  to  examine  proposed  changes.  The  Department  of  Justice  (DO  J)  has 
the  power  to  block  any  proposed  change  in  law  that  has  "the  purpose  . . .  [or]  the 
effect  of  denying  or  abridging  the  right  to  vote  on  account  of  race  or  color."28 
The  test  embodied  in  this  standard  calls  attention  to  the  jurisdiction's  intent  along 
with  the  extent  to  which  the  plan's  likely  results  impose  negative  effects  on 
minority  voting  power.  And  importantly,  the  standard  places  the  burden  of  proof 
on  the  covered  jurisdiction.29  Thus,  a  proposed  change  cannot  proceed  without 
affirmative  evidence  that  its  purpose  and  effect  does  not  "deny  or  abridge"  the 
right  to  vote.  This  analysis  has  experienced  a  different  trajectory  since  the  courts 
have  pared  back  the  standard.  Over  the  last  thirty  years  or  so,  the  standard  has 
been  that  the  government  may  object  only  to  proposed  changes  that  impose  a 
retrogressive  effect  (i.e.,  worsening  the  position  of  minority  political  power).30 

I  have  argued  in  previous  writing  that  the  development  of  the  preclearance 
system  has  followed  a  somewhat  mixed  path,  largely  due  to  the  interaction 
between  the  judicial  and  legislative  constructions  of  the  remedy.31  Through 
judicial  interpretation  and  legislative  amendment,  these  aspects  of  the  law  have 
developed  in  some  surprising  ways  over  time.  While  the  scope  of  the 
preclearance  provision  has  largely  expanded  over  time,  the  substantive  standard 
to  be  applied  in  federal  review  has  almost  uniformly  narrowed.32  Even  as  more 
jurisdictions  and  more  types  of  election  changes  are  submitted  to  the  federal 
government,  the  level  of  scrutiny  applied  in  the  review  process  has  diminished 
substantially. 

B.   The  Players  in  Preclearance 

Before  discussing  the  specific  pathologies  in  the  current  preclearance  system, 
a  brief  discussion  of  the  goals  of  the  major  actors  involved  in  the  process  is  in 
order.  Generally  speaking,  there  are  three  primary  stakeholders  in  jurisdictions 
subject  to  the  preclearance  system:  (1)  the  agency  officials  who  administer 
election  rules  for  the  jurisdiction;  (2)  the  racial  minority  group(s),  including  (but 
not  limited  to)  their  elected  representatives;  and  (3)  the  political  parties.33  The 


27.  See  Bossier  II,  528  U.S.  320,  323  (2000). 

28.  Miller  v.  Johnson,  515  U.S.  900,  906  (1995)  (citing  42  U.S.C.  §  1973c). 

29.  Reno  v.  Bossier  Parish  Sch.  Bd.  (Bossier  I),  520  U.S.  471,  478  (1997)  (noting  judicial 
preclearance);  28  C.F.R.  §  51.52(a)  (2010)  (noting  Attorney  General  preclearance). 

30.  Bossier  II,  528  U.S.  at  329.  It  should  be  noted  that  the  standard  for  prohibited  intent  in 
Section  5,  however,  has  been  more  varied. 

3 1 .  See  Crayton,  supra  note  16,  at  335-41 ;  see  also  Michael  J.  Pitts,  What  Will  the  Life  of 
Riley  v.  Kennedy  Mean  for  Section  5  of  the  Voting  Rights  Act?,  68  Md.  L.  Rev.  481  (2009). 

32.  Crayton,  supra  note  16,  at  325. 

33.  See,  e.g.,  Luis  Fraga  &  Maria  Ocampo,  More  Information  Requests  and  the  Deterrent 

Effect  of  Section  5,  in  VOTING  RIGHTS  ACT  REAUTHORIZATION  OF  2006:     PERSPECTIVES  ON 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  207 


preferences  and  goals  of  these  different  groups  can  sometimes  overlap  or 
coincide,  but  the  interplay  of  their  strategies  often  results  in  competitive  and  (at 
times)  obstructive  behavior. 

The  local  civil  servants  who  manage  the  election  process  in  a  covered 
jurisdiction  often  find  themselves  in  an  unenviable  and  thankless  position.  If  it 
is  true  about  voting  rights  politics  that  "someone  always  gets  screwed,"34  then 
those  who  must  execute  the  policy  choices  crafted  by  legislative  and  executive 
officials  quite  consistently  rank  near  the  top  of  the  list  of  candidates.  On  one 
hand,  they  are  primarily  responsible  for  preparing  and  submitting  the 
jurisdiction's  proposed  change  to  the  federal  government  for  review.  Yet  doing 
their  job  properly  also  invites  criticism  and  litigation  threats  coming  from  at  least 
one  of  the  other  two  sets  of  actors  who  find  themselves  aggrieved  by  the 
jurisdiction's  policy  choices.35 

While  complying  with  the  submission  itself  is  not  terribly  burdensome,  civil 
servants  must  develop  and  produce  evidence  showing  that  the  proposed  election 
change  does  not  run  afoul  of  the  prohibitions  in  Section  5.36  Election 
administrators  take  their  charge  seriously,  even  if  the  political  actors  who  vote 
on  proposed  changes  are  busy  pursuing  their  own  distinct  ends.  So  long  as  they 
are  not  themselves  captured  by  ideological  forces,  these  actors  usually  maintain 
a  neutral  view  with  respect  to  adopting  a  particular  election  approach.  Their 
foremost  desire  out  of  any  policy  submission  is  a  predictably  successful  outcome 
in  the  federal  review  process.37     As  some  research  has  shown,  covered 


Democracy,  Participation,  and  Power  oftheVotingRightsAct  47, 51  (Ana  Henderson  ed., 
2007).  While  Fraga  and  Ocampo's  framework  includes  the  Department  of  Justice  as  a  major  actor, 
the  framework  in  this  Article  focuses  on  the  relationship  among  the  parties  within  the  jurisdiction. 
The  present  model  addresses  the  processes  leading  to  a  jurisdiction's  submission  of  a  preclearance 
proposal  to  the  federal  government,  which  is  largely  dependent  upon  the  relationships  among  the 
actors  who  reside  within  a  given  jurisdiction. 

34.  See  Pamela  S.  Karlan,  The  Fire  Next  Time:  Reapportionment  After  the  2000  Census,  50 
Stan.  L.  Rev.  731,  733  (1998).  Karlan  states  in  her  description  of  the  redistricting  process  that 
"[r]edistricting,  like  reproduction,  combines  lofty  goals,  deep  passions  about  identity  and  instincts 
for  self-preservation,  increasing  reliance  on  technology,  and  often  a  need  to  'pull  [and]  haul'  rather 
indelicately  at  the  very  end.  And  of  course,  it  often  involves  somebody  getting  screwed."  Id. 
(internal  citation  omitted). 

35.  See  generally  Daniel  P.  Tokaji,  The  Future  of  Election  Reform:  From  Rules  to 
Institutions,  28  Yale  L.  &  Pol'y  Rev.  125  (2009). 

36.  See  Bossier  II,  528  U.S.  320,  323  (outlining  the  burdens  and  requirements  necessary  to 
successfully  pass  preclearance). 

3  7 .  See,  e.g. ,  Raquel  A.  Rodriguez,  Reflections  of  Another  Bush  v.  Gore  Lawyer,  64  U.  Miami 
L.  Rev.  631,  636  (2010)  (stating  that  legislators  and  election  officials  are  faced  with  challenge  of 
creating  policies  that  "do  not  create  inordinate  burdens  on  the  right  to  vote  while  enacting  laws  to 
ensure  that  elections  are  fair,  honest,  and  efficient");  see  also  HEATHER  K.  Gerken,  The 
Democracy  Index:  Why  Our  Election  System  Is  Failing  and  How  to  Fdc  It  16  (2009) 
(stating  that  election  officials  also  face  the  pull  of  the  political  parties  they  are  affiliated  with 
because  "[t]he  problem  is  that  election  officials  depend  on  their  party  for  their  jobs");  Tokaji,  supra 


208  INDIANA  LAW  REVIEW  [Vol.  44:201 


jurisdictions  tend  to  withdraw  or  modify  a  proposed  change  even  in  the  face  of 
federal  responses  like  More  Information  Requests.38  Even  the  more  subtle 
suggestion  of  an  explicit  rejection  deters  submissions.  Additionally,  these  actors 
desire  latitude  to  implement  the  proposed  election  changes  in  order  to  satisfy  the 
demands  of  local  political  authorities  and  the  jurisdiction's  governing  law.39 

A  second  important  set  of  players  in  the  preclearance  jurisdiction  is  the  racial 
minority  community,  the  intended  beneficiaries  of  the  preclearance  regime. 
Minority  voters  desire  a  relatively  robust  federal  enforcement  approach  that 
affords  strong  protections  against  discrimination.  In  practice,  this  position 
encourages  frequent  federal  objections  to  proposed  changes  whose  purpose  or 
effect  cause  even  the  most  subtle  harms  to  minority  political  interests.  This 
community  often  seeks  improvements  in  the  levels  of  representation  in  elected 
offices  and  promotes  substantive  policies  that  expand  access  to  voting,  especially 
for  members  of  the  minority  group.40  Increasingly,  this  category  of  stakeholders 
includes  multiple  racial  groups  whose  political  interests  may  not  always  coincide. 
The  goals  of  the  minority  community  are  often  (but  not  always)  conveyed  by  the 
political  officials  who  are  elected  to  represent  them  as  well  as  by  private 
organizations  like  the  Legal  Defense  Fund,  whose  members  often  work  to 
articulate  the  political  interests  of  minority  communities.41 

Finally,  the  traditional  political  parties  are  an  ever-present  and  significant 
category  of  actors  in  almost  every  preclearance-covered  jurisdiction.42   Since 


note  35,  at  133  (stating  that  election  official  have  two  interests  that  are  often  conflicting:  (i)  their 
"professional  obligation  to  discharge  their  duties  impartially,"  and  (ii)  their  self  interest  in 
portraying  loyalty  to  their  party  in  order  to  ensure  their  own  re-election  to  a  higher  office). 

38.  Fraga  &  Ocampo,  supra  note  33,  at  65-67. 

39.  Id. 

40.  See,  e.g.,  Brief  of  the  Congressional  Black,  Hispanic,  and  Asian  Pacific  American 
Caucuses  et  al.  as  Amici  Curiae  Supporting  Appellees  at  21,  Nw.  Austin  Mun.  Util.  Dist.  No.  One 
v.  Holder,  129  S.  Ct.  2504  (2009)  (No.  08-322). 

41 .  Since  1940,  the  Legal  Defense  Fund 

has  been  a  pioneer  in  the  struggle  to  secure  and  protect  the  voting  rights  of  African- 
Americans.  LDF  has  been  involved  in  nearly  all  of  the  precedent- setting  litigation 
relating  to  minority  voting  rights.  LDF's  political  participation  group  uses  legal, 
legislative,  public  education  and  advocacy  strategies  to  promote  the  full,  equal  and 
active  participation  of  African- Americans  in  America's  democracy. 

Political  Participation,  LEGAL  DEFENSE  FUND,  http://naacpldf.org/category/political-participation 

(last  visited  Nov.  14,  2010). 

42.  See,  e.g.,  Morse  v.  Republican  Party  of  Va.,  517  U.S.  186,  213  n.27  (1996)  (noting  that 
political  parties  played  an  integral  role  in  continuing  discriminatory  practices  before  the  VRA); 
Nathaniel  Persily,  Options  and  Strategies  for  Renewal  of  Section  5  of  the  Voting  Rights  Act,  in  The 
Future  of  the  Voting  Rights  Act  223,  227-28  (David  L.  Epstein  et  al.  eds.,  2006)  (noting  that 
the  "politicization  of  the  preclearance  process"  has  resulted  in  a  "great  risk  that  political  appointees, 
of  whichever  political  affiliation,  at  the  DOJ  will  deny  preclearance  to  changes  that  might  be 
detrimental  to  their  party,  while  granting  it  to  laws  that  might  retrogress  with  respect  to  minority 
voters  yet  benefit  their  party"). 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  209 


decisions  about  the  design  of  electoral  structure  are  inherently  political  issues, 
the  parties  heavily  involve  themselves  in  the  shaping  of  the  system.  This  set  of 
actors  includes  both  elected  officials  responsible  for  governing  the  jurisdiction 
as  well  as  the  informal  operatives  who  run  the  supporting  party  organizations. 
As  much  as  with  any  substantive  debate  about  public  policy,  one's  ideological 
alignment  tends  to  drive  the  terms  of  the  debate  on  a  proposed  election  change 
that  is  subject  to  preclearance.  The  inherent  competition  among  the  parties  is 
perhaps  at  its  zenith  in  the  context  of  redistricting  decisions,  where  the  share  of 
each  party's  governing  power  is  at  stake.43 

On  redistricting  and  other  election-related  issues,  these  ideological  groups 
struggle  to  maintain  or  improve  the  probability  that  their  candidates  will  control 
government.  Like  racial  minority  groups,  partisan  agents  also  fight  for  election 
policies  that  tend  to  improve  their  standing  among  the  electorate — especially 
those  voters  who  consistently  support  their  candidates  in  elections.  This 
competition  can  sometimes  become  complicated  when  one  takes  account  of  the 
intersecting  role  that  race  plays  in  the  pursuit  of  the  party's  interest.  When  a 
significant  portion  of  the  party's  membership  represents  a  majority-minority 
constituency,  pursuing  the  party's  overall  interests  may  not  entirely  coincide  with 
what  benefits  the  racial  minority  community.44  However,  the  simplest  means  of 
understanding  the  interests  of  the  political  parties  is  that  each  sets  out  to  pursue 
a  greater  share  of  political  power  by  disadvantaging  the  others. 

C.  Systemic  Pathologies 

There  are  many  positive  things  to  say  about  the  benefits  associated  with 
preclearance,  much  of  which  are  contained  in  the  rather  voluminous  record 
supporting  the  most  recent  renewal  of  the  VRA.45  Despite  its  multiple  benefits, 
though,  the  preclearance  system  also  has  encouraged  some  troubling  pathologies 
in  the  ways  that  covered  jurisdictions  address  election  policy  changes.  These 
local  politics  are  often  characterized  by  strategies  that  impede  the  development 
of  new  election  policies.  Over  time,  this  paralysis  prevents  the  jurisdiction  from 
advancing  toward  a  more  permanent  arrangement  that  embodies  the  anti- 
discrimination norms  that  the  preclearance  system  commands.  Below,  I  identify 
three  particular  problems  that  contribute  to  the  longstanding  stalemate  that  exists 
among  the  actors  in  preclearance  jurisdictions. 

The  first  pathology  in  preclearance  jurisdictions  is  the  lack  of  serious 
attention  to  long-range  goals  in  election  policymaking.  Decisions  about  public 
policy,  either  in  legislatures  or  in  operating  agencies,  tend  to  involve  both  short- 


43 .  See  Persily,  supra  note  42,  at  227-28.  While  it  is  certainly  the  case  the  party  involvement 
is  most  significant  during  redistricting,  the  parties  are  also  concerned  with  the  more  common 
policies  like  the  adoption  of  new  voting  equipment  or  location  of  polling  places  that  are  also  subject 
to  preclearance  review. 

44.  Id  at  227  (noting  that  there  is  a  risk  that  DOJ  officials  will  preclear  laws  that  benefit  their 
own  party,  regardless  of  how  it  impacts  racial  disparities). 

45.  See  generally  Persily,  supra  note  4. 


210  INDIANA  LAW  REVIEW  [Vol.  44:201 


term  and  long-term  considerations.46  In  the  election  arena,  an  example  of  a  short- 
term  consideration  might  involve  the  possible  effects  of  increasing  or  decreasing 
the  number  of  polling  places  or  the  percentage  of  citizens  who  can  cast  a  ballot 
in  the  next  election.  On  the  other  hand,  adopting  a  new  type  of  polling 
machinery  at  every  polling  place  in  a  jurisdiction  may  require  attention  to  effects 
that  may  only  materialize  after  a  series  of  elections.  Preclearance  stakeholders 
rarely  reach  consensus  about  the  types  of  policy  proposals  that  require  an 
assessment  of  long-range  factors.47  Their  decisions  tend  to  reflect  more  limited 
applications  so  that  they  do  not  entrench  a  particular  election  device  or  procedure 
for  an  extended  period.48 

This  pattern  of  decisionmaking  is  linked  to  a  pair  of  features  inherent  to  the 
current  preclearance  system.  One  of  these  features  is  the  indeterminate  nature 
of  the  preclearance  standard  in  the  federal  review  process.  The  standard  for 
reviewing  changes  has  shifted  substantially  due  to  a  lingering  dispute  between 
the  judicial  and  legislative  branches.49  As  each  branch  has  taken  its  turn 
construing  the  statute,  the  standard  has  evolved  from  a  strong  emphasis  on 
proportionality  to  a  more  limited  concern  with  whether  the  change  diminishes 
minority  political  power.50  Election  administrators  tend  to  encourage  the 
adoption  of  more  limited  changes  as  the  best  way  to  avoid  a  preclearance 
challenge.51  For  their  part,  minority  communities  and  political  parties  also  tend 
to  rely  upon  short-term  thinking.  With  unpredictable  constructions  of  the  federal 
test  for  approving  election  changes,  an  actor  who  is  unsatisfied  with  the  existing 
standard  might  prefer  to  hold  out  for  a  later,  more  favorable  climate  to  pursue  his 
or  her  preferred  election  policy. 

Another  reason  for  the  absence  of  long-range  thinking  is  the  absence  of  a 
guiding  principle  for  assessing  a  proposed  policy.  Policy  decisions  with  longer 
life  spans  or  broader  application  can  invoke  greater  scrutiny  in  the  federal  review 
process  than  more  discrete  ones.52  The  effects  of  such  discrete  changes  are  often 
readily  apparent,  which  means  that  federal  review  is  a  more  straightforward 
matter.53  By  contrast,  major  structural  changes  to  a  voting  system  do  not  usually 
have  fully  discernible  effects.  The  uncertainty  in  the  latter  set  of  changes  leaves 
substantial  room  for  debate.    The  difficulty  in  stating  long-term  effects  on 


46.  See  generally  Tokaji,  supra  note  35. 

47.  See  id.  at  141-42. 

48.  Mat  145-46. 

49.  See  generally  Crayton,  supra  note  16. 

50.  Id.  at  321. 

5 1 .  See  Tokaji,  supra  note  35,  at  136-37. 

52.  See  Katherine  Culliton-Gonzalez,  Time  to  Revive  Puerto  Rican  Voting  Rights,  19 
Berkeley  La  Raza  L.J.  27,  43  (2008)  (stating  that  "Section  5  provides  for  a  high  level  of 
scrutiny — it  requires  that  the  DOJ  conduct  an  advance  review  of  any  proposed  changes  in  voting 
procedures  to  determine  if  they  would  have  a  discriminatory  impact.  Section  5  covers  jurisdictions 
through  findings  of  a  history  of  racial  discrimination  in  voting  through  the  use  of  discriminatory 
tests  or  devices"). 

53.  See  id. 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  2 1 1 


political  power  with  precision  forces  federal  authorities  to  project  these  changes 
over  time,  which  leaves  ample  room  for  uncertainty  and  dispute.  To  avoid  an 
uncertain  review  outcome  or  a  prolonged  review  process,  local  authorities 
running preclearance  advocate  limited  changes.54  The  additional  procedural  steps 
could  seriously  complicate  (and  most  certainly  will  delay)  the  jurisdiction's 
effort  to  enact  change. 

A  second  preclearance  pathology  is  the  propensity  toward  oppositional 
relationships  in  the  consideration  of  new  policy.  Adopting  new  election  law  in 
a  covered  jurisdiction  typically  requires  an  alignment  of  most  (if  not  all)  of  the 
various  preclearance  stakeholders.55  However,  these  interests  are  not  especially 
inclined  toward  the  norm  of  cooperation.  Aside  from  the  usual  partisan 
competition  that  shapes  all  political  decisionmaking,  preclearance  adds  an  extra 
constraint  because  each  of  the  stakeholders  holds  the  ability  to  either  stall  or 
block  the  adoption  of  a  new  policy.56  The  principle  of  bipartisanship  is  therefore 
crucial  to  avoid  floor  fights  and  subsequent  litigation  over  the  legitimacy  of  a 
new  law.  Furthermore,  the  consent  of  the  relevant  racial  minority  group  often 
proves  crucial  to  the  success  of  a  policy.57  This  is  so  because  the  DOJ  regularly 
consults  with  leaders  within  the  local  minority  community  when  considering  the 
likely  effects  of  the  proposed  change.58 

For  both  the  partisan  and  racial  stakeholder  groups,  the  conventional 
approach  for  assessing  a  policy  idea  is  to  focus  on  self-interested  and  zero-sum 
concerns.  Part  of  this  surely  is  rooted  in  a  not-so-distant  past  in  which  interests 
were  in  violent  opposition  to  each  other.  However,  it  is  also  due  to  the  absence 
of  generally  accepted  ways  to  measure  the  benefits  and  costs  associated  with  the 
proposed  changes.  In  other  words,  the  terms  of  the  debate  themselves  are 
disputed.  For  any  given  group,  the  overall  effect  of  a  given  proposal  depends 
upon  the  perceived  advantages  for  that  particular  group.59  Further  complicating 
the  matter,  these  debates  are  often  regarded  as  zero-sum  endeavors;  one  group's 
potential  advantage  under  a  new  regime  is  automatically  viewed  in  terms  of 
another's  political  detriment.  Thus,  the  result  is  the  politics  of  trench 
warfare — where  any  concessions  are  tantamount  to  surrender.  Few  discussions 


54.  See  Ellen  D.  Katz,  Congressional  Power  to  Extend  Preclearance:  A  Response  to 
Professor  Karlan,  44  Hous.  L.  Rev.  33,  46-47  (2007)  ("Indeed,  the  Department  of  Justice  has 
objected  more  often  to  changes  proposed  at  the  local  level  than  to  statewide  changes  such  as 
congressional  redistricting  plans."). 

55.  See  Tokaji,  supra  note  35,  at  128. 

56.  Id. 

57.  See  Luis  Fuentes-Rohwer  &  Guy-Uriel  E.  Charles,  Preclearance,  Discrimination,  and 
the  Department  of  Justice:  The  Case  of  South  Carolina,  57  S.C.  L.  REV.  827,  845-46  (2006) 
(stating  that  the  DOJ  considered  the  concerns  of  minority  voters  and  the  impact  of  electoral 
structures  on  communities  of  color). 

58.  See  id.  at  853. 

59.  See  Tokaji,  supra  note  35,  at  135  ("Where  there  is  ambiguity  over  which  forms  of 
identification  should  be  allowed  or  how  states  may  go  about  purging  voters  from  registration  lists, 
for  example,  it  is  difficult  to  imagine  Republicans  and  Democrats  reaching  agreement."). 


212  INDIANA  LAW  REVIEW  [Vol.  44:201 


about  a  specific  proposal  employ  a  shared  language  of  assessing  the  merits  for 
the  election  system  as  a  whole.60 

Put  another  way,  the  legislative  process  in  a  preclearance  jurisdiction  turns 
on  "veto  points"  that  are  available  to  each  of  the  relevant  stakeholders.  The 
negative  power  to  derail  any  proposed  change  encourages  oppositional  behavior 
from  others  in  discussions  about  policy.61  A  political  party  that  fervently 
disagrees  with  a  proposed  change  will  either  credibly  threaten  to  defeat  the 
proposal  in  a  vote  or  to  later  challenge  it  in  court.62  For  racial  minority  groups, 
expressing  their  displeasure  to  federal  authorities  who  investigate  ajurisdiction's 
proposal  can  potentially  draw  a  request  for  additional  information  or  a  formal 
preclearance  objection.63  Additionally,  their  strong  opposition  could  signal  a 
later  challenge  in  federal  court  under  a  different  provision  in  the  VRA.64  Real  or 
perceived  disadvantages  to  any  preclearance  stakeholder  are  likely  to  doom  any 
proposed  change  in  the  law. 

The  final  pathology  in  preclearance  jurisdictions  is  the  lack  of  policy 
innovation.  The  inclination  toward  short-term  decisionmaking  along  with  the 


60.  See  Terry  M.  Ao,  When  the  Voting  Rights  Act  Became  Un-American:  The  Misguided 
Vilification  of  Section  203,  58  ALA.  L.  REV.  377,  394  (2006).  Ao  notes  that  there  were  instances 
of  minority  group  unity  during  the  1982  and  1992  reauthorization  processes  after  opponents  of  the 
VRA  attempted  "to  drive  a  wedge  between  Section  203  and  Section  5  (preclearance)  supporters  and 
thereby  [tried]  to  split  the  African-American  community  from  the  others  (despite  the  fact  that  other 
minority  groups  also  benefit  from  Section  5)."  Id.  However,  those  minority  groups  unified  once 
they  realized  that  a  strong  Section  5  and  Section  203  would  be  beneficial  for  all.  Id. 

61 .  See  Tokaji,  supra  note  35,  at  132. 

62.  See  id.  For  example,  Democratic  officials  will  fight  for  policies  that  "include  as  many 
voters  as  possible,"  while  Republican  officials  will  fight  against  policies  that  may  foster  fraudulent 
voting.  Id.  at  133.  As  the  politics  of  redistricting  in  the  1990s  demonstrated,  states  with  divided 
governments  often  produced  stalemates  that  required  judicial  interventions  to  establish  district 
plans. 

63.  See  Daniel  P.  Tokaji,  If  It 's  Broke,  Fix  It:  Improving  Voting  Rights  Act  Preclearance, 
49  How.  L.J.  785,  837  (2006).  Tokaji  notes  that  even  if  there  is  considerable  influence  by  racial 
minority  groups, 

[tjhere  is  also  the  problem  of  determining  which  civil  rights  groups  can  best  serve  as  the 
'proxy'  of  minority  voters  in  a  given  community,  so  as  to  justify  deference  to  solutions 
that  these  groups  negotiate  with  state  or  local  election  officials.  One  can  easily  imagine 
dueling  groups  emerging,  each  claiming  to  represent  the  interests  of  the  minority 
community,  yet  taking  opposing  positions  on  particular  issues. 
Id. 

64.  See,  e.g.,  Fuentes-Rohwer  &  Charles,  supra  note  57,  at  853-54.  In  South  Carolina,  a 
delegation  of  black  citizens  objecting  to  proposed  changes  in  election  standards  influenced  the  DOJ 
to  move  from  a  provisional  objection  to  part  of  the  proposed  election  plan  to  a  complete  objection 
to  the  whole  proposed  plan.  The  data  show  that  the  DOJ  frequently  issued  objections  while  citing 
the  influence  of  communities  of  color  in  making  those  decisions.  If  this  trend  continues,  then 
challenges  in  federal  court  are  a  likely  progression  from  current  administrative  oppositions  from 
minority  communities.  Id. 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  2 1 3 


adversarial  nature  of  the  legislative  process  in  preclearance  jurisdictions  tend  to 
chill  any  serious  effort  to  pursue  innovative  election  changes.  This  third 
pathology  is  especially  lamentable  in  the  wake  of  several  controversial  elections 
at  the  national  and  statewide  levels.65  Even  with  significant  federal  financial 
resources  available  for  jurisdictions  to  experiment  with  improving  the  election 
process,  preclearance  jurisdictions  have  tended  to  shy  away  from  more  ambitious 
proposals.  Rather  than  exploring  new  ways  to  prevent  the  kinds  of  election  day 
train  wrecks  that  result  in  extended  litigation  and  political  wrangling, 
preclearance  jurisdictions  tend  to  employ  a  minimalist  approach  to  policymaking. 
As  it  is  practiced,  the  current  preclearance  system  favors  the  maintenance  of  the 
status  quo,  which  leaves  little  room  for  creativity  in  the  development  of  election 
policy.66 

While  the  lack  of  innovation  is  surely  evident  with  respect  to  the  minority 
community  and  political  parties,  its  effects  are  most  troubling  for  the  officials 
who  manage  elections  in  preclearance  jurisdictions.  These  officials  often  show 
interest  in  exploring  new  methods  of  balloting  and  administration;67  however,  the 
very  strict  enforcement  of  the  preclearance  submission  requirement  coupled  with 
the  inclination  of  the  stakeholders  toward  adversarial  interactions  dissuades  these 
actors  from  proposing  or  pursuing  new  approaches.68  The  result  is  that  possible 
improvements  to  the  election  system  are  rarely  raised  to  avoid  conflicts  among 
the  stakeholders.  These  experts  are  the  very  persons  charged  with  developing  a 
system  that  is  both  reliable  and  efficient,  yet  the  politics  of  preclearance  can 
sometimes  work  against  these  very  norms. 


65.  See  Crawford  v.  Marion  Cnty.  Election  Bd.,  128  S.  Ct.  1610  (2008).  In  this  case,  the 
Indiana  Democratic  Party,  the  League  of  Women  Voters,  and  other  interested  voters  brought  a 
challenge  against  an  Indiana  law  that  required  all  voters  to  show  a  government-issued  photo  ID 
before  casting  their  ballots.  Id.  at  1614.  The  Supreme  Court  held  that  the  law  was  valid  because 
it  was  not  unreasonable  to  require  photo  ID  to  vote  and  the  law  was  in  line  with  protecting  the 
validity  and  integrity  of  the  voting  process.  Id.  at  1624;  see  also  Common  Cause/Ga.  League  of 
Women  Voters  v.  Billups,  439  F.  Supp.  2d  1294,  1305-06,  1360  (N.D.  Ga.  2006)  (in  which  a 
similar  voter  ID  law  was  upheld  in  Georgia  despite  the  fact  that  300,000  Georgians  did  not  possess 
a  valid  government-issued  photo  ID). 

66.  See  Tokaji,  supra  note  35,  at  1 37  (stating  that  "[d]espite  the  significant  improvements  that 
have  occurred  since  2000,  then,  little  has  changed  in  regard  to  the  decentralization  and  partisanship 
of  American  election  administration"). 

67.  See  Gilda  R.  Daniels,  A  Vote  Delayed  Is  a  Vote  Denied:  A  Preemptive  Approach  to 
Eliminating  Election  Administration  Legislation  That  Disenfranchises  Unwanted  Voters,  47  U. 
Louisville  L.  Rev.  57,  74-77  (2008).  Especially  since  the  2000  presidential  election,  legislators 
and  officials  have  attempted  to  address  the  complicated  task  of  correcting  the  many  problems  that 
were  exposed,  such  as  outdated  voting  machines,  voter  purges,  and  voter  discontent.  However, 
despite  the  passage  of  the  Help  America  Vote  Act  (HAVA)  to  help  states  eliminate  punch-card 
voting  systems,  these  efforts  have  been  largely  ineffective.  Id. 

68.  See  Tokaji,  supra  note  63,  at  836  (indicating  that  election  officials  are  even  faced  with 
the  adversarial  interests  of  more  than  one  group  within  the  same  minority  community  who  have 
conflicting  interests). 


214  INDIANA  LAW  REVIEW  [Vol.  44:201 


II.  Why  the  Amendments  Entrench  These  Pathologies 

A.   The  Academic  Criticism 

Before,  during,  and  after  the  recent  legislative  debate  on  the  VRA  extension, 
academic  commentators  had  much  to  say  about  what  happened — and  what  should 
have  happened.  Much  of  the  writing  on  the  topic  registered  discontent  with  the 
debate  in  Congress  and  with  the  details  of  the  statutory  extension  itself.69  Some 
of  this  work  showed  sympathy  to  the  VRA  sponsors  in  recognition  of  the 
challenges  they  faced  in  achieving  a  bipartisan  compromise  while  also  racing 
against  the  clock  to  pass  the  bill  before  an  important  midterm  election.70 
However,  far  more  of  the  writing  concerned  the  implications  of  Congress's 
failure  to  address  unanswered  questions  and  lingering  issues. 

1.  Clarifying/Redefining  Standards. — Some  of  the  criticism  highlighted 
lingering  ambiguities  in  the  operational  concepts  found  in  the  statute.  The  most 
apparent  of  these  is  the  idea  of  retrogression,  a  bedrock  test  that  Congress  set  out 
to  change  in  its  extension.71  The  sponsors  of  the  extension  announced  the  limited 
goal  of  reversing  the  Supreme  Court's  interpretation  in  Georgia  v.  Ashcroft.12 
There,  the  Court  narrowly  applied  a  retrogression  analysis  to  permit  the 
elimination  of  several  majority-black  legislative  districts  if  the  state  compensated 
by  employing  a  sufficiently  large  set  of  "minority  influence"  districts.73 
Congress  very  clearly  rejected  the  reasoning  advanced  in  Ashcroft  and  its  related 
decisions,  returning  the  law  to  the  original  retrogression  standard  announced  in 
the  Beer14  decision  (which  would  have  faulted  Georgia's  proposed  plan  due  to 
its  reducing  the  number  of  minority-majority  districts).75 

Defending  the  final  statute  that  Congress  produced,  Nathaniel  Persily  tries 
mightily  to  recast  the  legislative  process  to  clarify  a  standard  with  multiple 
meanings.76  He  finds  that  the  legislative  history  from  the  Senate  casts  great 
doubt  on  how  the  courts  or  the  DOJ  might  apply  the  retrogression  standard  in 
practice.77  Concerned  that  the  Senate's  very  fractious  legislative  history  revealed 
severe  weaknesses  in  the  new  standard,  Persily  suggests  that  the  Court  utilize  the 


69.  See  generally  Persily,  supra  note  4;  James  Thomas  Tucker,  The  Politics  of  Persuasion: 
Passage  of  the  Voting  Rights  Act  Reauthorization  Act  of '2006,  33  J.  Legis.  205  (2007). 

70.  Tucker,  supra  note  69,  at  206- 1 7  (recounting  the  difficulty  involved  in  gaining  bipartisan 
support  for  the  reauthorization  of  the  Act). 

71.  Id.  at  254.  Representative  Sensenbrenner,  Chairman  of  the  House  Judiciary  Committee, 
subsequently  engaged  in  a  colloquy  with  Representative  Watt  to  "confirm  that  determination  of  the 
retrogression  standard  was  to  be  made  'without  consideration  of  political  party  control."'  Id. 

72.  539  U.S.  461  (2003). 

73.  Id.  at  490. 

74.  Beer  v.  United  States,  425  U.S.  130  (1976). 

75.  Id.  at  141. 

76.  See  generally  Persily,  supra  note  4. 

77.  Mat  183,  226-27. 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  2 1 5 


more  cohesive  House  report  as  the  best  evidence  of  legislative  intent.78  The 
House  report  includes  a  clear,  well-reasoned  argument  in  favor  of  the  bill's 
constitutionality,  and  it  rejects  any  specific  definition  of  the  new  retrogression 
standard.79 

Nevertheless,  due  to  the  constraints  inherent  in  bipartisanship,  even  the 
House  report  contains  its  share  of  vagueness.  Persily  concedes  that  the  report 
sidesteps  tough  analytical  questions  about  how  to  define  minority  political 
power.80  For  example,  the  retrogression  inquiry  seems  focused  on  minorities' 
"ability  to  elect,"  but  it  provides  no  guidance  on  how  the  ability-to-elect 
determination  should,  as  an  approximation  of  political  power,  be  made.81  Fearing 
that  this  broad  and  vague  standard  may  permit  an  overly  broad  application  to 
emphasize  those  rare  elections  involving  minority  candidates  with  broad  cross- 
racial  appeal,  Persily  suggests  additional  criteria  for  the  "ability-to-elect" 
determination.82  More  specifically,  he  proposes  limiting  the  application  of  any 
new  standard  to  a  protected  group's  ability  to  elect  its  uniquely  preferred 
candidate  of  choice.83  Persily  further  suggests  that  the  standard  only  apply  where 
minority  voting  cohesion  is  at  a  level  of  ninety  percent  or  more  for  a  candidate 
that  minorities  prefer  but  white  voters  do  not.84 

2.  Loosening  Bailout  Procedure. — Aside  from  the  muddled  conceptual 
issues  that  remain  in  the  renewed  VRA,  scholars  have  also  criticized  how 
Congress  handled  problems  of  quantifiable  evidence  in  the  record  supporting  the 
Act.85  On  this  more  than  any  other  single  issue  in  the  debate,  scholars  have 
registered  grave  doubts86  about  whether  the  empirical  case  could  be  made  for  a 
renewed  Section  5  in  light  of  City  of  Boerne}1  This  approach  accepted  the 
congressional  finding  that  the  best  way  to  mark  progress  under  the  Act  was  to 
measure  political  improvements  for  minority  groups.88 


78.  Id.  at  1 89-92.  In  fact,  the  cognizant  Senate  committee  quite  infamously  produced  a  pair 
of  conflicting  reports  reading  the  Act  in  diametrically  opposed  ways. 

79.  Id.  at  190. 

80.  Mat 231-32. 

81.  Mat  240-42. 

82.  Mat 219-26. 

83.  Mat 220. 

84.  Id.  at  230. 

85.  See  152  Cong.  Rec.  S8012  (daily  ed.  July  20,  2006);  152  Cong.  Rec.  H5131,  H5207 
(daily  ed.  July  13,2006). 

86.  See  James  Thomas  Tucker,  The  Battle  Over  "Bilingual  Ballots  "  Shifts  to  the  Courts:  A 
/W-Boerne  Assessment  of  Section  203  of  the  Voting  Rights  Act,  45  HARV.  J.  ON  LEGIS.  507,  513 
(2008);  see  also  Richard  H.  Pildes,  Is  Voting  Rights  Law  Now  at  War  with  Itself?:  Safe  Election 
Districts  Versus  Coalitional  Districts  in  the  2000s,  89  N.C.  L.  REV.  (forthcoming  Dec.  2010), 
available  at  http://ssrn.com/abstract=304587. 

87.  City  of  Boerne  v.  Flores,  521  U.S.  507,  517-19  (1997). 

88.  See  Tucker,  supra  note  86,  at  578  (stating  that  "Section  203  has  proven  extraordinarily 
effective  in  addressing  the  effects  of  education  discrimination  on  language  minority  voters.  While 
a  marked  difference  in  participation  rates  remains  between  non-Hispanic  whites  and  language 


2 1 6  INDIANA  LAW  REVIEW  [Vol.  44:20 1 


However,  the  evidence  on  minority  registration  and  participation  rates, 
office-holding,  and  (to  some  degree)  racial  polarization  indicated  that  significant 
progress  had  been  made.  These  trends  were  especially  clear  in  the  jurisdictions 
where  Section  5  had  been  enforced.89  In  some  of  these  jurisdictions,  minority 
participation  rates  even  exceeded  those  of  white  voters.90  At  the  same  time,  the 
DO  J  only  rarely  objected  to  proposed  election  changes,  suggesting  that  states  no 
longer  engaged  in  the  kind  of  wholesale  discrimination  that  was  commonplace 
in  the  1960s.91  How  could  the  continuance  of  the  preclearance  system  remain 
justifiable  in  the  face  of  evidence  showing  its  success?  To  be  sure,  some  scholars 
introduced  additional  evidence  that  placed  these  findings  in  context,92  but  these 
studies  were  eclipsed  by  the  alarms  about  the  case  for  an  extension. 

Despite  problems  with  the  legislative  evidence,  Rick  Hasen  cautiously  agreed 
during  legislative  hearings  that  an  extended  version  of  Section  5  could  be  a 
constitutional  enactment.93  He  concluded  from  an  analysis  of  the  evidentiary 
standard  applied  in  post-Boerne  cases  that  a  reauthorization  of  Section  5  would 
likely  be  valid,  but  it  would  need  to  overcome  clear  evidence  of  declining  racial 
discrimination  in  the  political  sphere.94  The  most  significant  piece  of  evidence 
in  the  record  was  the  "Bull  Connor  Is  Dead"  problem.95  Hasen  observed  that  the 
starkly  racist  viewpoint  is  now  highly  disfavored  in  Southern  political 
discourse.96  The  "segregation  now  and  forever"  regime  (of  which  Connor  was 
a  key  part)  is  now  largely  extinct,  powerless,  or  disfavored  due  to  shifting 


minorities,  the  gap  has  narrowed  considerably."). 

89.  See  Nw.  Austin  Mun.  Util.  Dist.  One  v.  Mukasey,  573  F.  Supp.  2d  221 ,  247-65  (D.D.C. 
2008). 

90.  Id.  at  247.  Rome  pointed  out  that  by  1 976  black  registration  rates  in  four  southern  states 
exceeded  the  national  average  for  blacks  and  argued  that  the  "emergency  with  respect  to  which 
Congress  acted  in  1964  ha[d]  passed."  Id.  at  247  (quoting  Brief  for  Appellants  at  173,  City  of 
Rome  v.  United  States,  446  U.S.  156  (1980)  (No.  1801840)). 

9 1 .  Tucker,  supra  note  69,  at  2 1 0  (stating  that  many  "civil  rights  groups  [perceived]  the  Bush 
Administration's  Justice  Department  [as  reluctant]  to  enforce  Section  5"  and  that  "reauthorization 
would  be  an  uphill  battle"). 

92.  See  generally  Mark  A.  Posner,  Time  Is  Still  on  Its  Side:  Why  Congressional 
Reauthorization  of  Section  5  of  the  Voting  Rights  Act  Represents  a  Congruent  and  Proportional 
Response  to  Our  Nation 's  History  of  Discrimination  in  Voting,  1 0  N.  Y.U.  J.  LEGIS.  &  Pub.  Pol'y 
5 1  (2006)  (discussing  why  reauthorization  of  Section  5  was  still  necessary). 

93.  See  Rick  Hasen,  Drafting  a  Proactive  Bailout  Measure  for  VRA  Reauthorization, 
Election  Law  Blog  (May  1 8, 2006, 9:37  AM),  http://electionlawblog.org/archives/005655.html. 

94.  See  Rick  Hasen,  Can  "Proactive  Bailout"  Save  VRA  Renewal  from  Constitutional 
Attack?,  Election  Law  Blog  (May  16,  2006,  5:03  PM),  http://electionlawblog.org/archives/ 
005638.html. 

95 .  See  An  Introduction  to  the  Expiring  Provisions  of  the  Voting  Rights  Act  and  Legal  Issues 
Relating  to  Reauthorization:  Hearing  on  S.B.  2703  Before  the  S.  Judiciary  Comm.,  109th  Cong. 
8-10  (2006)  (statement  of  Richard  L.  Hasen,  Professor  of  Law,  Loyola  Law  School)  [hereinafter 
An  Introduction  to  the  Expiring  Provisions  of  the  Voting  Rights  Act]. 

96.  Id.  at  9. 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  2 1 7 


cultural  norms.  And  the  aforementioned  evidence  reflecting  this  political  shift 
is  a  testament  to  the  success  of  VRA  enforcement.  Nevertheless,  the  suggested 
"proxies"  for  discrimination  are  not  entirely  equal  to  the  task  of  justifying  the 
Act.  Hasen  explained  that  declining  DO  J  preclearance  objections  and  evidence 
of  private  discrimination  would  either  be  inadequate  or  irrelevant  in  judicial 
inquiry  into  ongoing  state-sponsored  discrimination.97 

To  confront  these  problems,  Hasen  later  suggested  that  Congress  incorporate 
new  elements  into  the  VRA  to  demonstrate  greater  constitutional  tailoring  in  the 
preclearance  remedy.98  One  of  his  proposed  fixes  during  the  legislative  hearings 
was  to  simplify  the  bailout  process  by  providing  an  accessible  exit  strategy  for 
more  covered  jurisdictions.99  Under  his  formulation,  called  proactive  bailout, 
DOJ  officials  would  compile  a  list  of  jurisdictions  that  might  be  eligible  for 
bailout  and  then  notify  local  officials  in  those  locations  about  this  possibility.100 
Reducing  the  impact  of  the  federal  oversight  power  would  arguably  help 
counteract  doubts  about  the  strength  of  the  evidentiary  record.  While  it  received 
the  endorsement  of  some  Southern  members  of  Congress,  Hasen 's  idea  was 
summarily  dismissed  by  advocates  as  an  effort  to  weaken  the  provision  and  as  a 
tool  that  would  introduce  too  much  uncertainty  into  its  application.101 

3.  Broadening  the  Concept  of  Rights. — A  final  area  of  criticism  poses 
perhaps  the  most  provocative  claim — that  congressional  adoption  of  the  VRA 
ignored  the  possibility  of  a  more  ambitious  election  reform  agenda.  This  position 
accepts  the  earlier  points  concerning  the  deficiencies  in  the  record  evidence. 
Demonstrating  a  sustained  need  for  the  preclearance  regime  may  be  difficult  in 
light  of  changing  racial  norms,  but  the  broader  indicators  of  a  systemic  meltdown 
in  election  management  are  ever-present.  The  critique  suggests  that  the 
challenges  relating  to  racial  equality  in  the  political  sphere  are  only  symptomatic 
of  a  broader  set  of  structural  problems  in  the  political  system.  The  obsession 
with  replaying  past  debates  about  racial  politics  has  obscured  the  more 
fundamental  issue  of  reforming  election  structures.  According  to  this  view,  the 
only  way  to  make  real  progress  in  entrenching  the  right  to  vote  for  all  citizens  is 
to  scrap  the  VRA  discussion  altogether. 

Going  a  step  beyond  Hasen' s  recommendations,  Richard  Pildes  has  proposed 
that  the  entire  anti-discrimination  framework  ought  to  be  replaced  with  a 
conversation  about  systemic  reforms.102  He  finds  that  recent  cases  involving 
racial  discrimination  in  the  political  sphere  more  often  involve  partisan  politics 


97.  Id. 

98.  Id.  at  10. 

99.  See  Hasen,  supra  note  94. 

1 00.  Hasen,  supra  note  93 . 

101.  See,  e.g.,  Bob  Bauer,  The  Uses  of  Hearings  and  the  Strength  of  the  "Deal"  in  the 
Renewal  of  the  VRA,  MORE  SOFT  MONEY  HARD  Law  (May  16,  2006),  http://www. 
moresoftmoneyhardlaw.com/news.html?AID=7 12. 

1 02.  See  Richard  H.  Pildes,  The  Future  of  Voting  Rights  Policy:  From  Anti-Discrimination 
to  the  Right  to  Vote,  49  How.  L.J.  741,  755-62  (2006). 


218  INDIANA  LAW  REVIEW  [Vol.  44:201 


than  concerns  about  the  political  power  of  excluded  racial  groups.103  The  "racial 
gerrymandering"  cases,  for  example,  are  often  dominated  by  a  discussion  of 
whether  a  plan  has  implications  for  the  Democratic  or  the  Republican  Party.104 
The  same  is  true  for  more  recent  controversies  involving  voter  ID  requirements, 
which  are  often  cast  as  racial  discrimination  problems.105  Because  the  Court  has 
declined  to  regulate  partisan  competition,  a  coherent  model  for  combating  racial 
discrimination  has  become  illusory;  the  entire  project  has  been  hijacked  by 
political  parties.106  Thus,  Section  5  has  failed  to  evolve  to  address  more  systemic 
problems.  Because  of  the  politics  around  its  application,  Section  5  had  very  little 
influence  in  addressing  the  vote  counting  controversies  in  Ohio  and  Florida.107 
These  problems  represent  the  future  of  controversies  involving  the  right  to  vote, 
yet  the  major  tool  of  enforcement  seems  inadequate  to  accomplish  the  task. 

In  this  light,  the  entire  effort  to  show  that  the  VRA  remains  a  viable 
enforcement  remedy  misses  the  point.  Pildes  suggests  that  rather  than  focusing 
strictly  on  anti-discrimination,  a  more  comprehensive  strategy  is  to  adopt 
legislation  that  formally  entrenches  the  right  to  vote.108  A  positive  affirmation 
of  a  standard  that  governs  the  right  to  vote  would  respond  more  effectively  to  the 
racial  discrimination  problems  and  would  provide  broader  protections  against 
partisan  manipulation  in  the  political  system.109  His  proposed  structure  would 
permit  a  much  narrower  version  of  Section  5,  but  that  provision  would  only 
address  a  very  small  number  of  jurisdictions.  The  system  would  adopt  a  formula 
with  transparent  and  current  information  to  identify  the  most  recalcitrant 
jurisdictions.110  However,  its  reach  would  only  supplement  the  more 
fundamental  set  of  protections  that  follow  from  the  positive  grant  of  the 
franchise. 

Pildes' s  idea  acknowledges  the  political  impasse  that  has  defined  the  nature 
of  debate  around  the  preclearance  system.  New  approaches  to  improve  the 
protection  of  the  franchise  and  respond  to  problems  often  face  great  skepticism 
in  this  highly  divisive  environment.111  Recognizing  the  practical  difficulties  in 
promoting  this  ambitious  idea  as  an  actual  policy  measure,  Pildes  suggests  that 
sponsors  of  Section  5  might  leverage  his  proposed  changes  in  exchange  for  the 
establishment  of  his  model  provision.112  As  it  exists  in  other  constitutional 
democracies,  a  uniform  national  voting-rights  protection  would  effectively 
respond  to  both  the  remaining  challenges  involving  racial  exclusion  as  well  as  the 


103.  Mat  751. 

104.  Mat  763-64. 

105.  Mat  751,  758-62. 

106.  Mat  761-64. 

107.  Mat  748-49. 

108.  Id.  at  756. 

109.  Mat  761. 

110.  Mat  761-62. 

111.  Id.  at  756  (stating  that  "the  concept  of  preclearance  review . . .  [is]  fundamentally  tied  to 
suspicion  of  changes  to  voting  practices"). 

112.  Mat  756-57. 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  2 1 9 

more  generalized  problems  related  to  systemic  failures  to  regulate  the  ballot  box. 

B.  Enter  the  Roberts  Court 

With  opposition  to  Section  5  and  several  critics  suggesting  what  the  statute 
ought  to  have  addressed,  few  were  shocked  when  a  local  jurisdiction  in  Texas 
filed  a  lawsuit  challenging  the  application  of  the  preclearance  system  in 
Northwest  Austin  Municipal  Utility  District  Number  One  (NAMUDNO)  v. 
Holder. U3  While  the  main  alleged  legal  injury  was  that  this  jurisdiction  had  been 
denied  bailout  of  the  preclearance  system  in  the  lower  court,114  most  of  the 
briefing  in  the  case  by  the  parties  and  amici  concerned  the  matter  that  had  been 
the  million  dollar  question  since  Boerne  and  a  key  concern  during  the  legislative 
reenactments — whether  the  preclearance  provisions  after  2006  remained  a 
constitutional  exercise  of  Congress's  enforcement  power.115  The  district 
contended  that  if  bailout  was  not  permissible  under  the  law,  then  Section  5  as  a 
whole  was  unconstitutional  under  the  Boerne  line  of  cases.116 

With  a  thoroughly  researched  legislative  record  and  a  flurry  of  supporting 
briefs  in  the  case,  one  might  have  expected  that  a  definitive  statement  from  the 
Court  was  unavoidable.  However,  the  Court  declined  to  decide  the  law's 
constitutionality  in  its  holding.  Instead,  the  majority  (re)interpreted  its  earlier 
decision  in  City  of  Rome,  holding  that  local  jurisdictions  like  NAMUDNO  within 
covered  states  could  independently  seek  preclearance  bailout.117 

This  is  not  to  say  that  Chief  Justice  Roberts  remained  entirely  silent  about  his 
views  of  the  provision  itself.  The  most  charitable  way  to  describe  his 
characterization  of  the  preclearance  provision  is  cautiously  ambivalent.  His 
review  of  the  achievements  of  the  VRA  resembled  many  offered  by  opponents 
during  the  reenactment  proceedings.118  Compared  to  the  landscape  that  existed 
both  times  it  addressed  the  constitutionality  of  Section  5,  Chief  Justice  Roberts 
claimed,  "Things  have  changed  in  the  South.  Voter  turnout  and  registration  rates 
now  approach  parity.  Blatantly  discriminatory  evasions  of  federal  decrees  are 
rare.  And  minority  candidates  hold  office  at  unprecedented  levels."119  In  light 
of  these  accomplishments,  Chief  Justice  Roberts  registered  doubt  about  the 
legitimacy  of  the  provision  because  its  "current  burdens  . . .  must  be  justified  by 
current  needs."120 


113.  129  S.  Ct.  2504  (2009). 

114.  Mat 2509-10. 

115.  See  Brief  for  Appellant  at  7,  Nw.  Austin  Mun.  Util.  Dist.  No.  One  v.  Mukasey,  1 29  S.  Ct. 
2504  (2009)  (No.  08-322);  see  also  Brief  of  Scharf-Norton  Center  for  Constitutional  Litigation  as 
Amici  Curiae  Supporting  Appellant  at  6,  Nw.  Austin  Mun.  Util.  Dist.  No.  One  v.  Holder,  129  S. 
Ct.  2504  (2009)  (No.  08-322). 

116.  See  NAMUDNO,  129  S.  Ct.  at  2510. 

117.  Id.  at  2516-17. 

118.  See  id. 

119.  Mat 2511. 

120.  Mat 251 1-12. 


220  INDIANA  LAW  REVIEW  [Vol.  44:201 


The  remainder  of  the  opinion's  discussion  of  constitutionality  concerns  raises 
questions  that  should  give  sponsors  of  the  provision  great  pause. 
Notwithstanding  its  success,  Chief  Justice  Roberts  wrote,  the  provision  infringes 
on  "sensitive  areas  of  state  and  local  policymaking  [and]  imposes  substantial 
'federalism  costs.'"121  Chief  Justice  Roberts  then  recited  almost  every  one  of  the 
concerns  mentioned  by  Section  5  opponents  in  the  reenactments,  ranging  from 
the  statute's  potential  violation  of  the  equal  sovereignty  doctrine,  to  its  use  of 
thirty-five-year-old  data,  to  its  selective  targeting  of  states  for  coverage.122  As  to 
the  last  matter,  Chief  Justice  Roberts  seemed  entirely  unconvinced  of  the  logic 
in  any  law  enforcing  a  standard  that  would  find  the  same  policy  illegal  in  a 
covered  state  while  permissible  in  another.123 

There  are,  of  course,  many  ways  to  read  the  opinion.  The  most  sanguine 
observers  view  the  language  gesturing  toward  a  rather  unfavorable  constitutional 
analysis  as  nothing  more  than  dicta.124  Some  advocates  declared  that  the  8-1 
decision  effectively  endorsed  Section  5  since  it  ultimately  sidestepped  a  serious 
constitutional  challenge.125  Further,  as  a  practical  matter,  the  decision  foreclosed 
any  follow-up  claim  to  the  one  mooted  by  this  decision.126  Because  smaller 
jurisdictions  like  NAMUDNO  now  may  seek  bailout,  the  likelihood  of  a  serious 
constitutional  challenge  from  a  state  government  is  minimal. 

Yet  one  can  just  as  easily  read  NAMUDNO  as  a  how-to  manual  for  a 
particularly  intrepid  state  government  that  is  willing  to  pick  up  where 
NAMUDNO  left  off.  Indeed,  two  jurisdictions  have  recently  commenced 
proceedings  to  challenge  the  constitutionality  of  Section  5  on  the  merits. 
Nothing  in  that  passage  (dicta  or  not)  indicates  that  the  Court  will  reject  a  future 
invitation  to  address  a  direct  challenge  from  an  intrepid  state  government.  A 
constitutional  challenge  could  renew  the  assertions  that  the  level  of  progress  in 
the  political  system  is  substantial  enough  to  warrant  greater  scrutiny  in  the 
Court's  review  of  the  statute.  To  the  extent  that  the  current  reenactment  of 
preclearance  cannot  provide  a  direct  response  to  the  questions  that  Chief  Justice 
Roberts  poses,  the  future  of  preclearance  remains  in  some  doubt.  Accordingly, 
Congress  may  have  good  reason  to  revisit  this  issue  in  the  short  term. 

III.  Reinvention  as  an  Answer 

As  Part  II  shows,  the  chances  that  Congress  will  need  to  address  the  VRA 
extensions  of  2006  are  quite  considerable.  Scholars  have  pointed  out  that  several 
issues  remain  unsettled  with  the  existing  statute.  At  the  same  time,  the  Supreme 


121.  Id.  at  25 1 1  (internal  citations  omitted). 

122.  Id.  at  2512. 

123.  Mat 2515-16. 

124.  See  Rick  Hasen,  Initial  Thoughts  on  NAMUDNO:    Chief  Justice  Roberts  Blinked, 
Election  LAW  Blog  (June  22, 2009, 8:00  AM),  http://electionlawblog.org/archives/013903.html. 

125.  See  Erin  Miller,  NAMUDNO:  Right  Question,  Wrong  Case,  SCOTUSBLOG  (Feb.  8, 
2010,  10:53  AM),  http://www.scotusblog.com/2010/02/namudno-right-question-wrong-case/. 

126.  Id. 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  22 1 


Court  may  soon  hear  one  of  the  many  renewed  constitutional  challenges  of 
Section  5  presently  in  the  lower  courts,  which  may  ultimately  lead  to  a  decision 
to  strike  down  the  statute.  Thus,  Congress  may  well  need  to  reconsider  the 
existing  provision  to  shore  up  the  legislative  scheme.  This  part  provides  some 
background  on  a  concept  that  should  prove  helpful  in  this  renewed  conversation: 
the  reinvention  of  government. 

Reinventing  government  was  a  major  policy  initiative  to  streamline 
governmental  operations  and  service  delivery  during  the  1990s.  In  the  face  of 
widespread  indicators  of  public  cynicism  about  the  efficacy  of  government 
services,  President  Clinton  launched  a  multi-stage  strategy  to  review  and  redesign 
the  way  that  these  agencies  function. 127  Many  policy  and  administrative  scholars 
credit  this  reform  of  government  services  as  among  the  most  successful  programs 
ever  launched  at  the  federal  level.128  After  reviewing  the  historical  development 
of  this  initiative  along  with  its  results,  this  Part  identifies  the  most  significant 
factors  that  accounted  for  its  effectiveness.  The  process  of  reinventing 
government  provides  an  especially  helpful  model  for  adopting  a  new  framework 
for  the  preclearance  process  in  the  VRA. 

A.  The  Foundations  of  Reinvention 

The  origin  of  "reinvention"  as  a  concept  is  traceable  to  three  related  sources. 
The  most  dominant  accounts  find  that  the  idea  emerged  in  the  private  sector, 
where  large  corporations  saw  the  potential  for  changing  internal  workplace 
culture  to  resolve  systemic  problems  in  their  traditional  hierarchical  governance 
structures.129  Borrowing  heavily  from  academic  studies  in  organizational 
behavior,  proponents  of  reinvention  in  these  companies  presented  their  ideas  as 
a  route  to  enhance  output  efficiency  and  improve  workplace  morale.130  In 
management  settings,  reinvention  principles  included  specific  reforms  such  as 
decentralizing  authority,  flattening  governing  structures,  and  increasing  employee 
control  over  the  workplace  decisionmaking.131  All  of  these  changes  were 
accomplished  with  the  goal  of  increasing  consumer  satisfaction  with  a  company's 


1 27.  See  John  Kamensky,  A  Brief  History  of  Vice  President  Al  Gore 's  National  Partnership 
for  Reinventing  Government  During  the  Administration  of  President  Bill  Clinton  1 99 3 '-2 00 7,  N AT' 'L 
P'ship  for  Reinventing  Gov't  (Jan.  12,  2001),  http://govinfo.library.unt.edu/npr/whoweare/ 
historyofhpr.html. 

128.  These  scholars  include  Ted  Gaebler,  David  Osborne,  Jonathan  D.  Breul,  and  John  M. 
Kamensky. 

129.  John  M.  Kamensky,  Role  of  the  "Reinventing  Government"  Movement  in  Federal 
Management  Reform,  56  PUB.  ADMIN.  REV.  247,  248-49  (1996). 

130.  See  generally  David  Osborne  &  Ted  Gaebler,  Reinventing  Government:  How  the 
Entrepreneurial  Spirit  Is  Transforming  the  Public  Sector  (1993).  This  book  sparked  the 
movement  and  coined  the  phrase  "reinventing  government"  that  would  later  become  the  basis  for 
the  National  Partnership  for  Reinventing  Government. 

131.  See  id.  at  20-24. 


222  INDIANA  LAW  REVIEW  [Vol.  44:201 


products  and  services.132 

The  fundamental  ideas  giving  rise  to  reinvention  also  can  be  found  in  the 
traditional  work  in  public  choice  theory.  Writers  such  as  Mancur  Olson,133 
Gordon  Tullock,134  and  William  Niskanen135  developed  models  of  governance 
that  emphasized  the  role  of  local  government  officials  in  maintaining  a 
democratic  society.136  Aside  from  the  functions  of  more  formal  institutions  such 
as  legislatures  and  courts,  a  bureaucracy's  relationship  with  private  citizens 
affects  the  level  of  public  acceptance  of  and  adherence  to  governmental 
authority.137  A  record  of  bureaucratic  competence  and  effectiveness  creates 
confidence  in  the  state's  ability  to  address  collective  problems;  it  also  enhances 
the  credibility  of  the  state's  commitments  and  threats.  Without  reliable 
performance  and  responsiveness  from  administrative  agencies,  the  individual 
citizen  has  little  reason  to  comply  with  the  demands  of  the  state.138  Accordingly, 
this  literature  teaches  that  the  proper  functioning  of  bureaucracies  can  contribute 
to  the  longevity  of  any  political  regime. 

The  roots  of  reinvention  also  have  a  home  in  public  administration  literature, 
which  commonly  takes  a  cause-and-effect  approach  to  examine  efforts  to  reshape 
government  structures.  Much  work  in  this  area  is  concerned  with  more 
measurable  outcomes  such  as  public  welfare  and  distributional  equality,  as 
opposed  to  more  abstract  concepts  relevant  to  political  theories  of  governance. 139 
Unlike  public  choice  models  for  bureaucratic  service,  public  administration 
scholars  commonly  trace  the  historical  development  of  the  state's  bureaucratic 
structure.140  They  often  examine  the  results  of  reorganization  strategies  to 
determine  how  effectively  a  given  approach  succeeds  in  aligning  the  various 
political  interests  necessary  to  achieve  a  structural  change.141  A  common  focus 


132.  See  id.  at  16-20. 

133.  See  Mancur  Olson,  The  Logic  of  Collective  Action:  Public  Goods  and  the 
Theory  of  Groups  ( 1 97 1 ). 

1 34.  See  James  M.  Buchanan  &  Gordon  Tullock,  The  Calculus  of  Consent:  Logical 
Foundations  of  Constitutional  Democracy  ( 1 962). 

135.  See  William  A.  Niskanen,  Jr.,  Bureaucracy  and  Representative  Government 
(1971). 

136.  Id. 

137.  See  generally  Richard  S.  Whitt,  Adaptive  Policymaking:  Evolving  and  Applying 
Emergent  Solutions  for  U.S.  Communications  Policy,  61  FED.  COMM.  L.J.  483  (2009). 

138.  See  id.  at  496-504. 

1 39.  See  Margo  L.  Bailey,  Cultural  Competence  and  the  Practice  of  Public  Administration, 
in  Diversity  and  Public  Administration:  Theory,  Issues,  and  Perspectives  177,  180-85 
(Mitchell  F.  Rice  ed.,  2005);  see  also  Herbert  Kaufman,  Emerging  Conflicts  in  the  Doctrines  of 
Public  Administration,  50  AM.  POL.  SCI.  REV.  1057,  1060-62  (1956). 

140.  See,  e.g.,  David  G.  Frederickson  &  H.  George  Frederickson,  Measuring  the 
Performance  of  the  Hollow  State  1  (2006)  (noting  that  "in  the  classic  public  administration 
ethos,  well-managed  governments  will  perform  well"). 

141.  See  Sidney  A.  Shapiro  &  Rena  Steinzor,  Capture,  Accountability,  and  Regulatory 
Metrics,  86  Tex.  L.  Rev.  1741,  1759  (2008)  ("For  public  administration,  the  tool  of  choice  to 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  223 


of  study  is  how  the  U.S.  President  and  his  cabinet  can  enact  organizational 
changes  in  the  executive  branch  that  can  further  his  policy  goals.  Significant 
changes  are  rarely  possible  through  executive  orders  alone  because  of  the 
multiple  centers  of  power  in  agencies;  persuasion  and  consensus  are  essential  to 
developing  a  new  governing  structure.142  This  work  is  often  quite  dependent 
upon  context,  although  many  writers  attempt  to  draw  parallels  across  historical 
periods  and  government  agencies. 

B.  The  Reinventing  Government  Experience 

In  the  1990s,  the  National  Performance  Review  (NPR)  was  the  Clinton 
administration's  comprehensive  effort  to  improve  the  function  of  government 
agencies. 143  Reacting  to  the  historical  association  of  Democrats  with  the  runaway 
growth  of  an  ineffective  bureaucratic  state,  President  Clinton  campaigned  on  a 
commitment  to  "mov[e]  from  red  tape  to  results  to  create  a  government  that 
works  better  and  costs  less."144  This  approach,  adapted  from  a  scholarly  study 
of  agency  development  called  Reinventing  Government,  was  a  prominent  theme 
in  Clinton's  blueprint  for  a  domestic  program.  Government  reform  was  an 
influential  element  in  substantive  policies  that  formed  the  "New  Democrat" 
agenda.145  Citing  the  lack  of  public  confidence  in  government  efficacy,  the 
administration  called  for  "a  new  customer  service  contract"146  in  citizen- 
government  relations,  and  it  sought  "to  change  the  culture  of  our  national 
bureaucracy  away  from  complacency  and  entitlement  toward  initiative  and 
empowerment."147 

Earlier  presidential  efforts  at  reforming  administrative  agencies  typically 
relied  upon  external  commissions  to  conduct  reviews  and  provide 
recommendations.  The  problem  with  the  so-called  "blue  ribbon  panel" 
strategies,  though,  was  that  partisan  wrangling  over  panel  appointments 
sometimes  consumed  large  quantities  of  time  and  resources;  in  some  cases, 
naming  a  panel  blunted  momentum  for  reform.  Additionally,  the  selected 
members  tended  to  avoid  more  critical  examinations  for  fear  of  potentially 


promote  good  management  is  rigorous  measurement  of  agency  and  program  performance."). 

142.  See  Harold  H.  Bruff,  Presidential  Power  Meets  Bureaucratic  Expertise,  12  U.  PA.  J. 
Const.  L.  461,  477  (2010)  ("By  increasing  the  numbers  of  political  appointees  in  the  executive 
branch,  Presidents  have  also  increased  their  own  managerial  responsibilities  as  they  try  to 
implement  coherent  policies."). 

143.  SeekL  Gore,  Common  Sense  Government:  Works  Better  &  Costs  Less  1  (1995). 

144.  Al  Gore,  From  Red  Tape  to  Results:  Creating  a  Government  That  Works 
Better  and  Costs  Less,  at  i  (1993). 

145.  OSBORNE  &  GAEBLER,  supra  note  1 30;  see  generally  KENNETH  S.  BAER,  REINVENTING 
Democrats:  The  Politics  of  Liberalism  from  Reagan  to  Clinton  (2010). 

146.  Gore,  supra  note  144,  at  i. 

147.  President  Bill  Clinton,  Remarks  Announcing  the  Initiative  to  Streamline  Government 
(Mar.  3,  1993),  available  at  http://govinfo.library.unt.edu/npr/library/speeches/030393.html. 


224  INDIANA  LAW  REVIEW  [Vol.  44:201 


divisive  and  volatile  choices  about  downsizing  or  eliminating  an  agency.148 
Accordingly,  the  final  reports  from  these  panels  rarely  offered  any  serious  plan 
of  action  for  restructuring  government;  once  announced,  these  commission 
recommendations  often  sat  untouched.  In  fact,  the  review  panel  authorized  by 
Congress  in  1992  (months  before  Clinton  was  elected)  never  was  staffed  by  his 
predecessor  due  to  internal  bickering  about  basic  staffing  decisions. 

The  Clinton  approach  was  decidedly  different.  Shortly  after  entering  office, 
Clinton  tasked  Vice  President  Gore  to  lead  a  six-month  review  of  government 
administration,  which  culminated  in  a  report  that  included  specific  policy 
recommendations.149  Gore  amassed  an  NPR  team  of  250  civil  servants 
representing  multiple  sectors  within  the  government  workforce  to  gather 
information  from  various  government  agencies.150  This  review  team  consisted 
of  top  officials  in  Washington,  D.C.,  local  bureaucratic  employees,  and  state 
officials  who  had  run  similar  reinvention  efforts  for  their  own  civil  service 
systems.151  Importantly,  the  group's  review  strategy  utilized  its  diversity  to 
obtain  several  perspectives  on  governmental  performance.  The  NPR  spoke 
directly  and  extensively  with  federal  employees  and  gathered  input  from  over 
30,000  citizens  about  their  experiences  with  government  administration.152 

The  NPR  recommended  that  agencies  form  separate  "reinvention  teams"  to 
direct  the  implementation  of  the  new  agency  policies  developed  in  the  system- 
wide  review  stage.153  Additionally,  the  NPR  encouraged  the  creation  of 
"reinvention  laboratories"  within  agencies — more  informal  groups  that  could 
think  creatively  and  pioneer  innovative  solutions  to  administrative 
problems — and  researched  successful  pilot  programs  already  underway.154  Vice 
President  Gore  personally  conducted  a  series  of  town  hall  meetings,  and  a  public 
summit  took  place  to  engage  business,  government,  and  academic  elites  in  the 
discussion  on  reform.155 

While  the  NPR  was  in  the  midst  of  compiling  its  report  in  1993,  Congress 
passed  the  Government  Performance  and  Results  Act,  which  was  intended  to 
facilitate  a  results-oriented  approach  to  the  administration  of  government.156 
Permitting  "flexibility  in  return  for  accountability,"  the  Act  allowed  agencies  to 
request  waivers  of  compliance  with  certain  regulatory  requirements  if  they  met 


148.  See,  e.g.,  William  E.  Kovacic,  Using  Ex  Post  Evaluations  to  Improve  the  Performance 
of  Competition  Policy  Authorities,  31  J.  CORP.  L.  503,  517-20  (2006). 

149.  Jonathan  D.  Breul  &  John  M.  Kamensky,  Federal  Government  Reform:  Lessons  from 
Clinton's  "Reinventing  Government"  and  Bush's  "Management  Agenda"  Initiatives,  68  Pub. 
Admin.  Rev.  1009, 1011  (2008). 

150.  Id. 

151.  Id. 

152.  See  GORE,  supra  note  1 44,  at  1 4- 1 5 . 

153.  John  Kamensky,  Nat'l  P'ship  for  Reinventing  Gov't,  Who  We  Are,  A  Brief 
History  (Jan.  1999),  available  at  http://govinfo.library.unt.edu/npr/whoweare/history2.html. 

154.  Id. 

155.  Id. 

156.  Government  Performance  and  Results  Act  of  1993,  Pub.  L.  No.  103-62,  107  Stat.  285. 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  225 


certain  other  requirements.157  The  103rd  Congress  passed  thirty  bills 
implementing  NPR  recommendations.158 

In  1994,  the  NPR  assisted  numerous  federal  agencies  in  creating  standards 
for  customer  service;159  hundreds  of  obsolete  programs  were  eliminated;160 
Congress  successfully  passed  legislation  reforming  the  procurement  system;161 
and  the  NPR  alleged  that  levels  of  satisfaction  among  citizens  and  federal 
employees  had  doubled.162  By  1995,  over  100,000  employees  had  been  removed 
from  the  federal  workforce163  (that  number  was  predicted  to  exceed  200,000  by 
1996,  leading  to  the  smallest  federal  workforce  in  40  years164).  The  NPR  also 
claimed  billions  of  dollars  of  reduction  in  debt,165  although  the  U.S.  Government 
Accountability  Office  disputed  a  direct  correlation  with  adopted  NPR 
recommendations.166 

In  September  1995,  the  NPR  generated  a  second  major  report,  Common 
Sense  Government,  with  a  new  list  of  250  recommendations.167  And  at  the 
beginning  of  President  Clinton's  second  term,  the  NPR  effort  underwent  a 
change  in  focus.168    The  effort  was  renamed  the  "National  Partnership  for 


157.  Gore,  supra  note  144,  at  34. 

158.  141  Cong.  Rec.  H1960  (daily  ed.  Feb.  21,  1995)  (statement  of  Rep.  Thurman). 

159.  See  KAMENSKY,  supra  note  1 5  3 . 

160.  141  Cong.  Rec.  H1959  (daily  ed.  Feb.  21, 1995)  (statement  of  Rep.  DeLauro);  Breul  & 
Kamensky,  supra  note  149,  at  1014. 

161.  141  Cong.  Rec.  H1957  (daily  ed.  Feb.  21,  1995)  (statement  of  Rep.  Maloney). 

162.  Breul  &  Kamensky,  supra  note  149,  at  1014. 

163.  Cong.  Rec  H1957  (daily  ed.  Feb.  21,  1995)  (statement  of  Rep.  Maloney).  Most  of  the 
phasing  out  occurred  through  a  legislated  buyout  plan  (the  Federal  Workforce  Restructuring  Act 
of  1994).  See  Statement  on  the  National  Performance  Review,  140  Cong.  REC.  SI 293 7  (daily  ed. 
Sept.  14,  1994)  (statement  of  Sen.  Glenn,  Chairman  of  the  Sen.  Gov't  Affairs  Comm.)  (referring 
to  the  federal  employee  buyout  bill);  Gore,  supra  note  144,  at  14  (expressing  the  intention  to 
implement  the  downsize  of  the  workforce  through  a  buyout).  Indeed,  the  issue  of  eliminating 
federal  jobs  had  raised  some  attention  in  the  media.  See,  e.g.,  Gwen  Ifill,  Plan  to  Tighten 
Government  Could Affect  1 00,000  Jofo,  N.Y.  TIMES,  Sept.  1, 1993,  atA16;  Gwen  Hill,  Washington 
Memo;  In  Trying  to  Streamline  Government,  Gore  Fights  a  Battle  Many  Have  Lost,  N.  Y.  TIMES, 
Sept.  5,  1993,  at  38  (noting  that  proponents  of  the  downsize  avoided  using  the  word  "layoff). 

164.  141  Cong.  Rec.  H1957  (daily  ed.  Feb.  21,  1995)  (statement  of  Rep.  Maloney);  id  at 
HI 959  (statement  of  Rep.  DeLauro);  George  Nesterczuk,  Reviewing  the  National  Performance 
Review,  1996  REGULATION  31,  35-36  (1996). 

165.  141  CONG.  Rec.  H1958  (daily  ed.  Feb.  21,  1995)  (statement  of  Rep.  DeLauro);  Breul  & 
Kamensky,  supra  note  149,  at  1014. 

1 66.  U.S.  Accountability  Office,  GAO/BGO-99-120,  NPR's  Savings:  Claimed  Agency 
Savings  Cannot  All  Be  Attributed  to  NPR  ( 1 999),  available  at  http://www.gao.gov/archives/ 
1999/gg/99 120.pdf;  Breul  &  Kamensky,  supra  note  149,  at  1014;  Nesterczuk,  supra  note  164,  at 
35. 

167.  See  GORE,  supra  note  1 43 . 

168.  Following  a  difficult  period  in  1995  when  the  government  was  trying  to  balance  the 
budget,  some  said  that  the  NPR  movement  had  ebbed  slightly.  See,  e.g.,  Stephen  Barr,  Gore's 


226  INDIANA  LAW  REVIEW  [Vol.  44:201 


Reinventing  Government,"  and  proponents  began  targeting  thirty-two  "high 
impact"  agencies,  chosen  because  of  their  level  of  interaction  with  the  public.169 
The  NPR  focused  on  assisting  in  the  complete  "culture  change"  at  those  entities 
by  allowing  reinvention  policy  to  permeate  every  aspect  of  their  day-to-day 
administration.170  The  NPR  compiled  practical  "reinvention  rules"  in  the  Blair 
House  Papers  and  pursued  initiatives  such  as  "Access  America,"  a  project 
designed  to  facilitate  electronic  government.171 

The  NPR  also  facilitated  communities  of  practice,  working  with  state  and 
local  governments  to  address  different  but  related  policy  issues  in  logical, 
effective  combination.  In  this  way,  the  NPR  "became  a  convening  authority  and 
a  neutral  meeting  place  of  cross-agency  efforts"172  and  "piloted  the  development 
of  performance-based  organizations"173  (PBOs).  The  innovation  successfully 
transformed  three  of  the  substantive  policy  areas  at  the  core  of  the  President's 
agenda:  "child  health  insurance,  safe  cities,  and  the  twenty-first  century 
workforce."174 

C.  Key  Elements  of  Reinvention 

While  scholars  have  discussed  a  variety  of  reasons  for  the  overall  success  of 
the  Clinton-Gore  reinventing  government  strategy,  the  point  of  the  present 
examination  is  to  identify  aspects  of  the  reinvention  program  that  can  be  applied 
to  the  voting  rights  preclearance  system.  In  this  connection,  three  specific 
elements  of  the  reinventing  government  initiative  are  worthy  of  consideration: 
setting  goals,  enhancing  efficiencies,  and  encouraging  innovation. 

1.  Clarifying  Goals. — One  of  the  core  governing  principles  expressed  by  the 
NPR  was  "back  to  basics,"  a  concept  that  meant  returning  to  the  core  goals  of 
each  agency's  work.  A  common  complaint  during  the  NPR's  systemic  review 
was  that  agency  officials  showed  little  interest  in  pursuing  any  goals  associated 
with  their  perceived  functions.175    Instead  of  providing  quality  service  to  a 


Team  Turns  to  Making  Reinvention  Deliver;  At  5 -Year  Point,  32  Agencies '  Goals  Are  Readjusted, 
Wash.  Post,  Mar.  3,  1998,  at  A15  (noting  that  commentators  said  the  effort  had  "defused,"  lost 
momentum,  and  was  on  "automatic  pilot"). 

169.  Breul  &  Kamensky,  supra  note  149,  at  1013-14;  Kamensky,  supra  note  153. 

1 70.  see  john  m.  kamensky,  nat'l  p'ship  for  reinventing  gov't,  reinvention  in  the 
Second  Clinton-Gore  Administration:  Changing  the  Culture  of  Government 
AGENCIES — 1 997-200 1  (last  visited  Nov.  1 4, 20 1 0),  available  at  http://govinfo.library.unt.edu/npr/ 
who  weare/hi  storypart4  .html . 

171.  See  generally  Bill  Clinton  &  Al  Gore,  Nat'l  Performance  Rev.,  Blair  House 
PAPERS  ( 1 997),  available  at  govinfo.library.unt.edu/npr/library/papers/bkgrd/blair.html  (Jan.  1 997); 
see  also  ACCESS  America,  http://govinfo.library.unt.edu/accessamerica/  (last  visited  Nov.  14, 
2010). 

172.  Breul  &  Kamensky,  supra  note  149,  at  1014. 

173.  Id 

1 74.  Id. ;  see  also  KAMENSKY,  supra  note  1 53. 

175.  See  Breul  &  Kamensky,  supra  note  149,  at  1013-14. 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  227 


constituency  or  enhancing  some  substantive  goal  identified  in  legislation,  the 
public  reported  that  agency  officials  neglected  or  ignored  the  needs  of 
constituents. 176  Their  attention  seemed  less  directed  to  responding  to  requests  for 
assistance  than  to  extending  the  life  of  the  agency.  In  other  cases,  agencies  had 
failed  to  fulfill  any  mandate  due  to  an  absence  of  clear  goals;  others  failed 
because  different  levels  in  the  agency  pursued  multiple  or  even  conflicting  policy 
goals.177 

In  response  to  this  combination  of  bureaucratic  lethargy  and  confusion,  the 
reinvention  program  mandated  that  all  agencies  identify  clear,  attainable 
objectives  to  guide  their  operation.178  Unlike  a  typical  command-and-control 
directive,  however,  the  NPR  established  working  groups  that  included  agency 
employees,  federal  managers,  and  consumers  to  articulate  these  operational 
goals.  These  working  groups  gathered  information  from  a  variety  of  sources, 
including  public  surveys,  agency  manager  interviews,  and  records  from  the 
relevant  congressional  oversight  committee.179 

Furthermore,  these  initial  working  groups  were  tasked  to  identify  objective 
goals  within  each  agency  that  could  be  assessed  by  the  public.  The  goals  were 
tailored  to  the  particular  needs  and  capacity  of  a  given  agency  because  the  groups 
were  differentiated  by  substantive  area.180  Additionally,  the  goals  reflected  a 
common  understanding  because  each  group  also  reflected  a  variety  of  major 
interests  that  were  relevant  to  the  agency's  work.  With  these  articulated 
objectives  in  place,  NPR  officials  predicted  that  reinvented  agencies  could 
employ  internal  reforms  organized  around  a  uniform  purpose.181 

2.  Assessing  &  Enhancing  Efficiencies. — A  core  feature  of  the  NPR 
reinvention  campaign  was  "cutting  red  tape"  inside  the  various  federal 
agencies.182  With  a  guiding  purpose  for  its  work  clearly  established,  an  agency 
could  then  begin  a  close  review  of  its  internal  operations  to  assess  how  well 
employees  accomplished  its  aims.  Reinvention  teams  recognized  that  this  effort 
required  reducing  or  eliminating  regulations  that  interfered  with  agency 
performance.  The  NPR  team  also  pursued  financial  savings  by  removing 
redundant  or  inefficient  sectors  of  the  federal  workforce. 

Both  of  these  tactical  steps  were  politically  important.  Each  helped  to 
dismantle  the  very  stark  image  of  bloated,  inefficient  agencies,  a  powerful 
symbol  that  fed  into  the  public's  strongly  negative  perceptions  of  government 
performance  and  responsiveness.  A  common  frustration  reported  in  the  NPR's 
early  public  satisfaction  surveys  was  that  internal  rules  were  so  indecipherable 


176.  Id. 

177.  Id. 

178.  Id.  at  101 7  ("Agencies  were  expected  to  develop  plans,  identify  the  responsible  officials, 
and  apply  resources  to  achieve  these  improvement  goals  within  their  own  organization."). 

179.  Mat  1011. 

180.  See  id. 

181.  See  id. 

182.  Id.  at  1013;  see  also  GORE,  supra  note  144,  at  2-3. 


228  INDIANA  LAW  REVIEW  [Vol.  44:201 


that  they  deterred  citizens  from  seeking  services.183  Simplifying  the  maze  of 
forms,  procedures,  and  requirements  improved  accessibility  for 
citizens — particularly  persons  with  limited  education  and  financial  means  who 
depended  on  the  reliable  and  efficient  delivery  of  agency  service. 

How  was  this  part  of  the  reinvention  regime  implemented?  The  NPR 
summarized  its  practical  aims  as  challenging  agencies  so  that  they  worked  better 
and  cost  less. 184  By  focusing  on  aspects  that  would  accomplish  their  agreed-upon 
ends  more  efficiently,  the  agencies  would  become  more  results-oriented  under 
this  approach.  Removing  procedural  barriers  started  with  identifying  essential 
components  of  each  agency's  operation.185  These  assessments  involved  interests 
at  every  stage  of  policymaking  from  formation  to  delivery  at  the  point-of-contact 
with  consumers.  This  effort  made  it  possible  to  eliminate  unnecessary  or 
unhelpful  steps  while  promoting  those  functions  that  promoted  the  agency's 
effectiveness. 

For  the  thirty  federal  agencies  and  bureaus  whose  functions  directly  engaged 
segments  of  the  public,  including  the  National  Park  Service  and  the  Internal 
Revenue  Service,  the  program  prompted  the  implementation  of  discrete  but 
visible  policy  changes  that  helped  improve  public  accessibility.  In  the  IRS,  for 
instance,  this  meant  expanding  telephone  service  so  that  customers  could  contact 
officials  twenty- four/seven  during  tax  season.186  Similarly,  the  National  Park 
Service  directed  employee  guides  to  include  explanations  in  their  formal  tours 
showing  why  a  particular  location  merited  funding  from  the  taxpayer. 187  Each  of 
these  changes  provided  a  strong  signal  to  the  user  that  agencies  were  adopting  a 
more  open  and  responsive  culture. 

Aside  from  promoting  these  policies,  the  NPR  established  agreed-upon 
metrics  for  tracking  improvements  in  agency  functions.  Using  the  findings  from 
the  multi-level  working  groups,  the  NPR  operationalized  the  concept  of 
"workfing]  better"  by  identifying  objective  markers  of  efficiency  that  were 
specific  to  each  agency's  function.188  Accounting  for  these  measurements  in  the 
reinvention  program  provided  agency  operatives  with  an  incentive  to  succeed  in 
promoting  the  goals  of  the  agency.  Further,  the  agency's  managers  could  easily 
mark  the  progress  of  its  units  and  test  various  programmatic  ideas.  Perhaps  most 
importantly,  these  measures  were  transparent.  Accordingly,  they  recruited  public 
involvement  in  maintaining  the  quality  of  agencies.  A  typical  metric  of  success 


183.  See  Breul  &  Kamensky,  supra  note  149,  at  1014. 

184.  See  id. 

1 85.  Id.  NPR's  efforts  to  reduce  costs  "led  to  a  reduction  in  the  size  of  the  federal  workforce 
of  426,200,  the  passage  of  90  pieces  of  legislation,  the  elimination  of  250  obsolete  programs,  the 
reduction  of  640,000  pages  of  unnecessary  internal  regulations,  and  the  elimination  of  another 
16,000  pages  of  regulations  affecting  the  public  and  businesses."  Id. 

186.  See  id. 

187.  See  id. 

188.  Id.  (using  objective  markers  such  as  customer  and  employee  surveys  to  gauge  the 
perceived  success  of  the  NPR's  efforts). 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  229 


was  public  satisfaction  with  the  delivery  of  services.189  While  it  was  not  the  only 
basis  for  assessment,  noting  public  sentiment  helped  assure  that  bureaucracy 
remained  alert  to  address  the  needs  and  concerns  of  the  end-users  of  public 
services. 

3.  Encouraging  Innovation. — The  third  notable  aspect  of  reinvention  was 
encouraging  innovation  at  the  agency  level.  If  identifying  efficiency  was  the  core 
of  reinvention,  innovation  was  the  most  enduring  way  of  entrenching  the  effects 
of  a  reform  strategy.  Reinvention's  departure  from  more  traditional 
reorganization  efforts  was  declining  the  formal  announcement  of  major  policy 
changes  from  the  cabinet  secretary's  office  in  Washington,  D.C.  Instead,  the 
NPR  redefined  the  agency's  internal  culture  starting  with  the  day-to-day 
functionaries  within  the  agencies.190  The  theory  behind  this  approach  was  that 
changes  in  culture  depended  upon  mid-  to  low-level  civil  servants  embracing 
different  norms.  Only  with  their  willingness  to  pursue  innovation  could  the 
agency  avoid  the  low  ratings  in  public  surveys  that  gauged  their  flexibility  in 
responding  to  new  types  of  problems. 

In  at  least  two  specific  ways,  the  bottom-up  approach  to  reinvention 
improved  the  agency's  ability  to  innovate.  First,  the  internal  innovation 
laboratories  established  a  greater  sense  of  ownership  and  control  at  the  point-of- 
contact  with  the  public  because  these  entities  involved  employees  at  every 
agency  level.  Under  the  traditional  system,  local  agency  officials  had  little 
opportunity  to  contribute  to  the  framing  of  important  management  policies.191 
Frontline  workers  stationed  outside  of  Washington,  D.C.  were  generally  the 
objects  rather  than  subjects  of  significant  reform  efforts.  With  a  clear  stake  in 
the  success  of  the  new  management  strategy,  civil  servants  had  greater  incentive 
to  exercise  their  discretionary  authority  to  address  unanticipated  problems  of 
those  seeking  assistance.192  The  reoriented  approach  engendered  a  greater  sense 
of  ownership  and  regard  for  the  new  culture. 

Additionally,  the  reinvention  program  was  also  mindful  to  permit  the  agency 
to  evolve  over  time.  Long  after  the  initial  reinvention  campaign  had  run  its 
course,  the  NPR  members  desired  to  leave  a  structure  that  could  continue  to 
foster  new  management  ideas.193  This  formula  for  ongoing  innovation  relied  on 
maintaining  channels  of  communication  to  all  parts  of  the  agency.  It  also 
required  the  ability  of  local  agency  officials  to  experiment  with  policy  ideas  that 


189.  Id. 

190.  Id  at  1011  (noting  that  breaking  from  tradition  included  recruiting  career  government 
employees  and  forming  a  team  of  250  staff  "with  each  major  agency  creating  its  own  internal 
teams"). 

191.  See  id  at  1013. 

192.  Id.  ("The  NPR  launched  a  broad  effort  to  encourage  frontline  staff  to  incorporate  the 
principles  of  reinvention  into  their  day-to-day  work:  putting  customers  first,  cutting  red  tape, 
empowering  employees,  and  cutting  back  to  basics.  This  became  a  broader  movement  in  the  federal 
workforce  to  reshape  the  governmental  bureaucratic  culture  to  be  more  entrepreneurial  and  less  rule 
driven."). 

193.  See  id 


230  INDIANA  LAW  REVIEW  [Vol.  44:201 


were  tailored  to  their  specific  experiences.  Not  only  did  these  laboratories  create 
an  incentive  to  accept  the  standards-based  culture  in  governmental  agencies;  the 
people  most  likely  to  interact  with  the  public  possessed  authority  to  find  new 
ways  to  be  responsive.  In  other  words,  local  officials  were  empowered  to  seek 
innovative  solutions  (within  limits)  in  their  agencies  and  then  pass  along  their 
experiences  to  agency  leaders  in  Washington,  D.C. 

The  reinvention  campaign  included  other  incentives  for  agency  employees 
to  participate  in  the  innovation  agenda.  The  most  publicized  of  them  was  the 
Hammer  Award,  a  prize  given  to  federal  employees  throughout  the  government 
who  had  succeeded  in  introducing  new,  effective  ways  of  controlling  costs  and 
improving  the  quality  of  agency  service.194  By  making  these  awards  available, 
the  framers  established  a  multi-agency  network  for  passing  along  ideas  to 
advance  agency  management.  The  reinvention  movement  allowed  even  lower- 
level  employees  to  transplant  their  ideas  across  substantive  areas.  These  efforts 
were  not  always  popular  among  senior  management  in  the  executive  branch,195 
but  they  established  a  norm  of  continually  improving  public  works  in  response 
to  new  conditions. 

IV.  Applying  Reinvention  to  the  Preclearance  System 

This  final  Part  applies  the  concept  of  reinvention  to  the  VRA's  preclearance 
system.  Building  on  observations  from  Part  III,  I  discuss  the  preconditions 
necessary  for  reinvention  of  the  preclearance  system  to  work  in  practice.  As 
noted  earlier,  the  present  submission  and  review  process  suffers  from  three 
specific  pathologies:  (1)  a  lack  of  clear  goals;  (2)  indeterminate  metrics  for 
charting  the  jurisdiction's  progress;  and  (3)  a  stalemate  on  innovative  changes  in 
electoral  structures.  The  politics  at  play  in  each  of  the  legislative  reenactments 
of  the  statute  contributed  to  this  outcome.  The  discussion  in  Congress  avoided 
any  resolution  of  these  difficult  issues  in  order  to  avoid  a  political  impasse.196 

I  submit  that  a  different  approach — reinvention — would  respond  to  these 
systemic  problems.  Also  included  in  this  section  are  some  concrete  ideas  about 
what  state  and  local  governments  might  do  to  in  furtherance  of  reinvention.  This 
new  framework  provides  clear  goals  for  covered  jurisdictions  to  accomplish, 
identifies  ways  to  track  and  enhance  efficiencies  in  the  process,  and  creates 
opportunities  for  the  stakeholders  in  covered  jurisdictions  to  develop  innovative 
methods  of  achieving  their  goals. 

A.   The  Goal  of  Reinvented  Preclearance  System 

The  most  controversial  task  for  a  reinvention  effort  in  this  context  is 
establishing  a  clear  purpose  for  the  preclearance  system.  What  exactly  is  to  be 


194.  Mat  1021. 

195.  See  id.  at  1020.  NPR  efforts  were  met  with  skepticism  from  the  Executive  Branch,  who 
doubted  the  NPR's  ability  to  follow  through  with  its  initiatives.  Id. 

1 96.  See,  e.g.  ,152  CONG.  REC.  S8024  (daily  ed.  July  20,  2006);  1 52  CONG.  Rec.  H5 1 3 1  -207 
(daily  ed.  July  13,  2006). 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  23 1 


accomplished  with  an  additional  twenty-five  years  of  preclearance  oversight? 
The  text  of  Section  5  indicates  that  its  function  is  to  deny  practices  with  a 
purpose  or  effect  of  denying  or  abridging  the  effective  exercise  of  the 
franchise.197  But  this  tells  us  very  little  about  the  strategic  goal  for  the  provision 
in  the  places  where  it  applies.  The  question  about  purpose  is  a  deceptively 
simple  one,  especially  since  the  original  framers  of  the  original  provision  were 
vague  about  any  goal.  Further,  each  reenactment  reveals  a  lack  of  consensus 
about  how  to  resolve  this  issue. 

The  absence  of  a  shared  understanding  is  evident  from  the  competing 
characterizations  of  Section  5's  purpose.  For  its  part,  the  U.S.  Supreme  Court 
has  shifted  its  view  of  what  the  provision  is  designed  to  do.  Shortly  after  1965, 
the  Court  had  endorsed  a  very  robust  application  of  the  provision  in  Allen  v.  State 
Board  of  Elections. 198  Since  then,  the  Court  has  supplanted  that  view  with  a 
more  limited  understanding — that  Section  5  simply  serves  as  a  deterrent  for 
"backsliding"  by  covered  jurisdictions.199  This  "retrogression  only"  view  of  the 
provision  would  address  only  a  small  share  of  discriminatory  practices,  leaving 
the  bulk  of  enforcement  tasks  to  other  parts  of  the  statute.200  The  Justices  have 
consistently  rejected  interpretations  that  preclearance  should  provide  significant, 
independent  protections  beyond  the  remedies  found  in  Section  2  of  the  statute.201 
This  approach  suggests  a  very  modest  end  for  Section  5,  since  only  the  most 
overt  state  conduct  would  be  considered  retrogressive. 

But  the  Court  is  not  alone  in  its  confusion  about  the  goal  of  the  preclearance 
remedy.  The  reenactment  debates  in  Congress  included  several  asserted  purposes 
of  Section  5.202  Those  who  opposed  legislative  extension  of  Section  5  viewed 
this  provision  as  a  temporary  means  of  blocking  the  specific  types  of  racial 
exclusion  from  the  political  system.203    By  eliminating  the  most  significant 


197.  42U.S.C.  §  1973(2006). 

198.  393  U.S.  544,  565-66  (1969).  In  rejecting  a  narrow  conception  of  the  provision,  the 
Court  stated: 

The  Voting  Rights  Act  was  aimed  at  the  subtle,  as  well  as  the  obvious,  state  regulations 
which  have  the  effect  of  denying  citizens  their  right  to  vote  because  of  their  race. 
Moreover ...  the  Act  gives  a  broad  interpretation  to  the  right  to  vote,  recognizing  that 
voting  includes  "all  action  necessary  to  make  a  vote  effective." 
Id.  (internal  citations  omitted). 

199.  H.R.  Rep.  No.  94-196,  at  57-58  (1975)  ("Section  5  was  a  response  to  a  common  practice 
in  some  jurisdictions  of  staying  one  step  ahead  of  the  federal  courts  by  passing  new  discriminatory 
voting  laws  as  soon  as  the  old  ones  had  been  struck  down."). 

200.  See  Bossier  II,  528  U.S.  320,  329  (2000)  (finding  the  concept  of  retrogression  to  apply 
to  both  the  "purpose"  and  "effects"  prongs  of  the  prohibitions  found  in  Section  5);  Beer  v.  United 
States,  425  U.S.  130,  141  (1976). 

20 1 .  See  generally  Crayton,  supra  note  1 6. 

202.  See  generally  Luis  E.  Fuentes-Rohwer,  Legislative  Findings,  Congressional  Powers,  and 
the  Future  of  the  Voting  Rights  Act,  82  Ind.  L.J.  99,  130  (2007). 

203 .  See,  e.g.,  An  Introduction  to  the  Expiring  Provisions  of  the  Voting  Rights  Act,  supra  note 
95,  at  8-10  (statement  of  Richard  L.  Hasen,  Professor  of  Law,  Loyola  School  of  Law);  id.  at  13-14 


232  INDIANA  LAW  REVIEW  [Vol.  44:201 


barriers  to  minority  political  participation,  these  members  expected  that  the 
provision  would  be  in  place  only  for  a  very  limited  time.  Accordingly,  this  group 
grew  far  less  comfortable  with  the  repeated  extension  of  these  tools  to  address 
new  political  problems,  especially  where  its  application  was  arguably  uneven  or 
inequitable. 

Contrasting  with  this  view  is  the  claim  by  Section  5  advocates.  Their 
understanding  was  that  Section  5  was  directed  toward  achieving  more  substantive 
changes  than  either  of  the  aforementioned  approaches  would  allow.204  Applying 
the  statute  as  they  imagined  would  address  multiple  types  of  voting  problems. 
And  the  process  would  remain  in  place  until  the  vestiges  of  racial  discrimination 
entirely  disappeared.  This  conception  of  the  remedy  reflects  the  aim  found  in  the 
story  of  Sisyphus.205  While  that  character's  reasons  for  moving  the  stone  up  the 
hill  were  never  quite  clear,  he  remained  committed  to  the  seemingly  endless  task. 

In  contrast  to  both  of  these  contrasting  approaches,  I  propose  a  distinct  way 
of  defining  the  aims  of  the  preclearance  system.  Breaking  the  impasse  from  these 
reenactments  requires  a  new  understanding  that  embodies  elements  of  what  each 
side  desires  in  a  refined  preclearance  provision.  Rather  than  adopting  an 
indefinite  procedural  goal  (as  the  current  defenders  of  Section  5  want)  or  one  that 
is  too  limited  to  be  effective  (which  reflects  the  Court's  thinking  and  perhaps  that 
of  some  opponents  to  the  current  law),  the  framers  of  a  reinvented  system  should 
specifically  announce  that  jurisdictional  transformation  is  the  goal  of  the 
provision. 

By  transformation,  I  refer  to  a  deep  and  durable  change  in  the  electoral 
structures  and  processes  within  a  jurisdiction  so  that  their  inputs  include  the 
opinions  of  minority  communities  and  their  outcomes  reliably  reflect  the  exercise 
of  that  community's  political  power.206  As  a  concept,  transformation  cannot  be 


(statement  of  Samuel  Issacharoff,  Professor  of  Law,  New  York  University  Law  School);  The 
Continuing  Need  for  Section  5  Pre-Clearance:  Hearing  Before  the  S.  Comm.  on  the  Judiciary, 
109th  Cong.  10-12  (2006)  (statement  of  Richard  Pildes,  New  York  University  Law  School) 
[hereinafter  The  Continuing  Need  for  Section  5  Pre-Clearance]. 

204.  See,  e.g. ,  J.  Morgan  Kousser,  Colorblind  Injustice:  Minority  Voting  Rights  and 
the  Undoing  of  the  Second  Reconstruction  53  (1999)  (stating  that  the  VRA  is  vital  to  the 
enforcement  of  the  Fourteenth  and  Fifteenth  Amendments);  Hugh  Davis  Graham,  Voting  Rights  and 
the  American  Regulatory  State,  in  CONTROVERSIES  IN  Minority  VOTING  177,  177  (Bernard 
Grofman  &  Chandler  Davidson  eds.,  1992)  (stating  that  the  VRA  is  "one  of  the  most  effective 
instruments  of  social  legislation  in  the  modern  era  of  American  reform").  See  generally 
Alexander  Keyssar,  The  Right  to  Vote:  The  Contested  History  of  Democracy  in  the 
United  States  264-66  (2000). 

205 .  See  Albert  Camus,  The  Myth  of  Sisyphus,  in  THE  MYTH  OF  Sisyphus  AND  OTHER  ESSAYS 
88,  91  (Justin  O'Brien  trans.,  1955).  In  this  myth,  the  gods  condemned  Sisyphus  to  spend  every 
day  rolling  a  rock  up  a  hill,  only  to  have  the  rock  fall  to  the  bottom,  requiring  Sisyphus  to  begin  his 
labors  endlessly  yet  again. 

206.  The  idea  for  the  term  "transformation"  is  partly  drawn  from  the  program  of  reform  of 
government  and  economic  institutions  in  South  Africa.  See  Bato  Star  Fishing  (Pty)  Ltd.  v.  The 
Minister  ofEnvtl.  Affairs  2004  (2)  SA  616  (CC)  at  3  (S.  Afr.).  There,  the  term  relates  to  a  broader 


2010]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  233 


easily  characterized  as  a  goal  that  is  purely  "procedural"  or  "substantive"  in  the 
manner  that  these  terms  are  commonly  employed  in  scholarly  discussions. 
Instead,  transformation  takes  aim  at  the  basic  structures  and  practices  that  inform 
governing  institutions. 

A  crucial  element  of  transformation  is  that  it  is  sensitive  to  the  problems 
associated  with  path  dependence  in  institutions.  Covered  jurisdictions  are  home 
to  governing  institutions  that  have  historically  excluded  or  limited  the  political 
involvement  of  racial  minority  groups  over  decades.  The  enduring  effects  of  this 
long  term  exclusion  are  not  comprehensively  addressed  by  simply  changing 
procedural  rules.  Such  changes  do  not  address  the  enduring  advantages  and 
opportunities  that  the  institutional  structure  has  provided  for  favored  groups. 
Traditional  voting  rights  remedies  have  certainly  improved  such  systems  with 
procedural  changes,  but  their  reforms  accept  as  given  much  of  the  underlying 
structures  in  institutions.  They  do  not  encourage  a  more  comprehensive 
consideration  of  the  effects  of  years  of  institutional  exclusion.  Put  differently, 
these  traditional  reforms  do  not  encourage  jurisdictions  to  start  afresh  in 
redesigning  governing  structures. 

A  transformed  jurisdiction  would  ensure  access  to  racial  and  political  groups 
in  a  given  jurisdiction  to  join  deliberations  about  the  merits  of  proposed  electoral 
rules  and  procedures.  Further,  transformation  would  call  attention  to  the  likely 
results  of  a  change  in  minority  communities  as  an  indication  of  its  merit.207  Most 
importantly,  transformation  offers  a  specific  target  that  can  guide  jurisdictions 
that  wish  to  emerge  from  the  preclearance  system.  The  point  of  transformation 
is  to  organize  jurisdictions  to  do  the  work  of  protecting  minorities  themselves; 
it  would  ultimately  obviate  the  need  for  federal  oversight. 

B.   The  Means  for  Reinvention 

Aside  from  setting  a  specific  goal  for  a  reinvented  preclearance  system,  a 
proposal  must  also  take  serious  account  of  the  ways  that  covered  jurisdictions 
can  achieve  this  end.  This  aspect  involves  developing  incentives  for  stakeholders 
in  the  relevant  unit  (in  the  1990s  version,  this  consisted  of  employees,  end-level 
customers,  and  cabinet  level  officers).  Unlike  traditional  command  policies, 
which  can  invite  opposition  and  shirking  by  those  who  execute  the  strategy, 
reinvention  tends  to  harness  the  traditional  interests  within  the  targeted 
institution.208  At  the  same  time,  reinvention  advocates  in  the  Clinton  era  also 


effort  to  shift  a  greater  share  of  financial  power  to  black  Africans  who  were  excluded  from  enjoying 
the  wealth  under  the  apartheid  regime.  This  idea  also  is  similar  to  the  concept  of  unitary  status  in 
the  school  desegregation  cases,  in  which  courts  have  established  a  benchmark  that  determines  when 
a  school  district  no  longer  requires  federal  oversight. 

207.  Importantly,  I  mean  to  distinguish  a  concern  about  quotas  from  the  one  advanced  here; 
as  the  Court  has  itself  acknowledged,  the  likely  effects  of  a  proposed  change  on  minority 
communities  is  a  relevant  consideration  in  assessing  its  viability  under  Section  5. 

208.  See  Richard  H.  Pildes  &  Cass  R.  Sunstein,  Reinventing  the  Regulatory  State,  62  U.  Cffl. 
L.  Rev.  1,13  (1995)  (noting  that  command  policies  are  a  remnant  of  the  Brownlow  Commission, 


234  INDIANA  LAW  REVIEW  [Vol.  44:201 


championed  the  adoption  of  quantifiable  metrics  within  each  agency  to  gauge 
performance  over  time.209  These  measures  assess  matters  that  are  relevant  to 
improving  efficiency  in  the  short  term  and  chart  the  agency's  overall  progress  in 
achieving  its  goals  in  the  long  term. 

Reinventing  preclearance  can  utilize  both  of  these  features  in  order  to 
improve  the  existing  system.  First,  the  provision  should  take  a  more  explicit 
account  of  the  relevant  stakeholders  in  the  process.  The  current  system 
empowers  only  two  major  players  in  a  formal  preclearance  review — state 
officials  and  the  DOJ.  But  these  are  not  the  only  groups  with  significant  stakes 
in  the  outcome  of  a  review;  the  concerns  of  minority  voters,  minority 
representatives,  and  the  political  parties  are  all  relevant  to  whether  a  proposed 
change  in  election  law  will  actually  be  enacted.210  However,  they  may  normally 
play  only  a  background  role  in  determining  whether  a  change  violates  the 
provision.211 

As  the  preceding  discussion  suggests,  the  additional  groups  that  are  only 
indirectly  involved  in  the  preclearance  process  might  be  interested  in  playing  a 
more  formalized  role  in  election  policy  development.  Perhaps  because  they  are 
not  fully  involved  in  the  review  stage  of  the  process,  they  also  do  not  often  find 
common  cause  with  each  other.  To  break  the  logjam,  Section  5  should  develop 
incentives  that  help  to  align  these  interests.  One  way  of  doing  so  is  by 
encouraging  two  cultural  norms  in  local  jurisdictions — cooperation  and 
deliberation.212  These  incentives  serve  the  overall  goal  of  transformation  in  that 
each  requires  actors  to  pay  due  regard  to  the  interests  of  racial  minorities,  along 
with  their  other  self-interested  concerns. 

Further,  a  reinvented  preclearance  system  should  provide  better  guidance  for 
jurisdictions  that  wish  to  emerge  from  federal  review.  Assuming  that 
transformation  is  the  appropriate  goal  of  the  system,  the  internal  workings  of 
Section  5  should  all  serve  that  aim.  However,  the  current  system  does  a  rather 
poor  job  of  providing  specific  guidelines  for  obtaining  what  some  of  the  2006 


which  saw  "'policy'  as  the  joint  domain  of  the  President  and  Congress,  whereas  'administration,' 
it  asserted,  must  be  under  the  direct  and  exclusive  command  of  the  President");  see  also  id.  at  1 12 
(explaining  that  reinventionist  economic  policies  encourage  "government  (a)  to  create  economic 
incentives  to  engage  in  socially  desirable  conduct,  and  (b)  to  permit  the  market  to  decide  how 
companies  respond  to  those  incentives"). 

209.  See  id.  at  6-7  (describing  Clinton  administration's  executive  orders  asserting  centralized 
control  over  the  regulatory  process  and  evaluating  Clinton's  executive  order  as  part  of  a 
"reinventing  government"  program). 

2 1 0.  See,  e.g. ,  Samuel  Issacharoff  &  Richard  H.  Pildes,  Politics  as  Markets:  Partisan  Lockups 
of  the  Democratic  Process,  50  STAN.  L.  REV.  643,  668-87  (1998). 

211.  Indeed,  the  Supreme  Court  has  also  denied  these  actors  formal  input  in  the  review  process 
by  denying  lawsuits  by  any  of  these  actors  to  challenge  the  DOJ's  administrative  decision  under 
Section  5  to  permit  a  proposed  election  change  despite  potential  discrimination  concerns.  See 
Morris  v.  Gressette,  432  U.S.  491,  504-05  (1977). 

212.  In  the  final  Part  of  this  paper,  I  describe  specific  structural  innovations  in  the  preclearance 
system  to  encourage  both  of  these  norms  in  covered  jurisdictions.  See  infra  Part  IV. C. 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  235 


opponents  described  as  the  "clean  bill  of  health."213  Much  of  the  problem  relates 
to  the  ongoing  conflict  about  how  to  tell  when  a  jurisdiction  has  done  enough  to 
merit  a  bailout. 

Evident  in  both  of  the  congressional  reenactments  of  the  VRA  was  an 
empirical  debate  about  judging  the  effectiveness  of  the  existing  system.214  To 
recount  the  problem  briefly,  Section  5  opponents  argued  that  improved  minority 
registration  and  voting  rates,  coupled  with  the  declining  number  of  federal 
objections  to  proposed  changes,  showed  that  some  of  the  covered  jurisdictions 
no  longer  required  oversight.215  Advocates  of  Section  5  viewed  the  same 
information  with  greater  skepticism,  claiming  that  this  evidence  merely  showed 
that  preclearance  had  effectively  deterred  possible  violations.216  Facing  an 
impasse,  the  majority  rejected  possible  amendments  to  change  the  coverage  and 
bailout  provisions  and  left  the  existing  system  (with  little  chance  for  state 
jurisdictions  to  effectively  exit  the  system)  unchanged.217 

Disagreements  about  the  value  of  metrics  pose  an  intractable  political 
problem.218  One  cannot  test  the  validity  of  the  opponents'  claims  without 
dismantling  the  preclearance  system.  At  the  same  time,  leaving  the  system  in 
place  without  a  clear  way  to  assess  progress  prevents  even  the  most  ardent 
Section  5  advocates  from  credibly  defending  the  provision's  effectiveness.  A 
reinvented  system  should  establish  criteria  that  reflect  concerns  of  both 
opponents  and  supporters  of  the  current  preclearance  system,  with  the 
understanding  that  states  may  pursue  these  metrics  in  order  to  achieve 
transformation.  Some  factors  may  include  the  measures  that  were  proposed 
during  the  enactments,  but  advocates  could  contribute  additional  indicators  that 


213.  See  generally  Katz,  supra  note  54.  Some  scholars  have  proposed  ways  of  interpreting 
the  present  statute  to  permit  more  jurisdictions  the  ability  to  bail  out,  and  the  Court  itself  has 
recently  allowed  local  jurisdictions  that  are  nested  in  covered  states  to  bailout  of  the  preclearance 
process. 

214.  See,  e.g. ,  Kristen  Clarke,  The  Congressional  Record  Underlying  the  2006  Voting  Rights 
Act:  How  Much  Discrimination  Can  the  Constitution  Tolerate?,  43  HARV.  C.R.-C.L.  L.  Rev.  385, 
394  (2008). 

215.  See  generally  An  Introduction  to  the  Expiring  Provisions  of  the  Voting  Rights  Act,  supra 
note  95,  at  8-10  (statement  of  Richard  L.  Hasen,  Professor  of  Law,  Loyola  School  of  Law);  The 
Continuing  Need  for  Section  5  Pre-Clearance,  supra  note  203,  at  13-14  (statement  of  Samuel 
Issacharoff,  Professor  of  Law,  New  York  University  Law  School). 

216.  See  supra  note  204  and  accompanying  text. 

217.  See  Clarke,  supra  note  2 14,  at  394  (stating  that  "the  record  shows  that  this  discrimination 
is  systemic  and  widespread  in  the  covered  jurisdictions,  appearing  at  all  levels  of  government 
including  city,  county,  and  state  levels"). 

218.  Attempts  to  increase  coverage  by  altering  the  coverage  formula  failed  because  those 
seeking  to  expand  coverage  found  it  impossible  to  design  a  neutral  trigger  that  would  expand 
coverage  without  inciting  strong  political  opposition.  Attempts  to  alter  the  bailout  provision  to 
mollify  critics  who  claimed  that  bailout  was  too  stringent  failed  because  there  was  fear  it  would  also 
accidentally  release  "bad"  jurisdictions  from  coverage.  And  any  attempt  to  change  the  preclearance 
procedure  would  have  turned  into  an  unending  debate  on  the  purpose  and  utility  of  Section  5  itself. 


236  INDIANA  LAW  REVIEW  [Vol.  44:201 


assure  the  full  incorporation  of  minority  political  interests. 

Interestingly,  some  aspects  of  the  2006  extension  point  in  this  direction.  One 
part  of  the  statute  provides  funding  for  a  DO  J  study  to  track  the  extent  to  which 
covered  jurisdictions  have  improved  levels  of  minority  political  participation.219 
However,  this  directive  is  silent  on  the  actual  measures  that  are  relevant  in  this 
review.  In  particular,  no  guidance  is  offered  on  whether  matters  like  registration 
rates,  preclearance  objections,  or  racial  polarization  should  be  included  in  the 
assessment.  By  identifying  an  overall  goal  for  the  preclearance  process  and  also 
seeking  meaningful  input  from  preclearance  stakeholders  about  methods  of 
measuring  progress,  the  DOJ's  recommendations  can  gain  considerable 
legitimacy  and  avoid  another  reenactment  debate.  Accordingly,  the  metrics  for 
the  reinvented  program  should  reflect  the  consensus  view  of  these  groups  with 
interests  in  a  jurisdiction's  preclearance  compliance. 

C.  Developing  Innovative  Reform  Ideas 

Finally,  a  reinvented  preclearance  system  should  encourage  stakeholders  to 
seek  innovative  ways  to  transform  electoral  structures.  The  ultimate  success  of 
the  1990s'  reinvention  program  was  its  ability  to  spur  a  sustained  effort  within 
agencies  to  improve  their  operation  through  innovation.  The  bulk  of  this  work 
was  carried  out  not  by  Washington  officials  but  by  workers  in  the  heart  of  the 
relevant  agencies.220  Ideas  for  improvement  were  based  on  the  desires  of  the 
agencies'  workers,  which  meant  that  solutions  were  tailored  to  the  context  of  the 
agency.  The  government  agency  experience  indicates  what  shifting  cultural 
norms  can  accomplish  over  the  long  term.  The  standard  operating  procedure 
within  a  reinvented  organization  is  to  pursue  innovative  ways  to  accomplish  tasks 
more  effectively.221 

The  functions  of  the  preclearance  system  could  improve  by  incorporating  this 
feature  of  reinvention  as  well.  Among  the  most  significant  problems  with  the 
competing  interests  in  the  present  system  is  that  there  is  very  little  incentive  for 
any  actor  to  introduce  new  ideas  to  improve  elections  in  a  covered  jurisdiction. 
The  reason  is  that  multiple  political  interests  must  be  satisfied  in  order  to  approve 
a  plan;  additionally,  there  is  inherent  uncertainty  in  the  federal  review  process. 
Put  plainly,  changing  the  system  increases  the  chances  that  the  jurisdiction  will 
land  in  a  courtroom.  Faced  with  these  barriers  to  innovation,  election  officials 
have  little  reason  to  reconsider  the  established  election  rules  and  structures. 

This  result  is  a  lamentable  by-product  of  an  otherwise  defensible  system. 
The  genius  of  Section  5  is  that  it  freezes  existing  structures  in  place  to  prevent 
states  from  adopting  more  harmful  laws.222  However,  one  cost  is  that  the  process 
can  also  stymie  momentum  for  new  policies  that  might  actually  improve  the 


219.  See  Fannie  Lou  Hamer,  Rosa  Parks,  and  Coretta  Scott  King  Voting  Rights  Act 
Reauthorization  and  Amendments  Act  of  2006,  Pub.  L.  No.  109-246,  §  2,  120  Stat.  577. 

220.  See  Kamensky,  supra  note  153. 

221.  See  Breul  &  Kamensky,  supra  note  149,  at  1013-14. 

222.  See  Shaw  v.  Reno,  509  U.S.  630,  657  (1993). 


2010]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  237 


political  system.  The  inherent  adversarial  culture  among  stakeholders  in  some 
preclearance  jurisdictions  can  resemble  trench  warfare — and  a  common  result  of 
these  skirmishes  is  a  stalemate.  The  jurisdiction,  meanwhile,  makes  only  the 
most  minimal  progress  toward  reforming  its  system.  At  the  close  of  an 
enforcement  period,  it  is  no  small  wonder  that  these  stakeholders  differ  greatly 
about  the  need  for  federal  oversight. 

The  politics  of  a  reinvented  preclearance  system  would  promote  cooperative 
behavior  among  the  different  interests  present  in  a  particular  jurisdiction. 
Sometimes  those  interests  would  emphasize  race,  partisanship,  or  both.223 
Reinvention  would  encourage  the  search  for  effective  means  of  improving 
election  structures  so  that  the  stakeholders  themselves  can  take  responsibility  for 
election  management.  This  change  does  not  require  a  wholesale  embrace  of 
either  side's  position  in  the  reenactment  debates.  Rather,  it  depends  upon  the 
willingness  of  each  camp  to  find  some  particular  benefit  in  the  mutual  goal  of 
transformation.  The  traditional  opponents  can  view  these  innovations  as  steps 
toward  the  jurisdiction's  emergence  from  federal  oversight.  And  the  proponents 
of  preclearance  can  view  the  same  programs  as  more  permanent  protections  that 
assure  meaningful  participation  for  racial  minorities  at  all  stages  of  the  political 
process. 

Some  concrete  examples  of  such  innovations  should  be  informative.  Taken 
from  three  different  states  that  are  part  of  the  preclearance  regime,  these  policies 
show  how  jurisdictions  may  craft  their  own  ways  of  entrenching  the 
incorporation  of  racial  minorities.  Admittedly,  the  scope  of  the  institutional 
changes  reviewed  here  is  relatively  minor  (partly  due  to  the  internal  political 
roadblocks).  But  the  examples  they  suggest  that  a  more  robust  level  of 
innovation  is  possible  if  reinvention  is  taken  seriously  in  a  future  legislative 
session  focused  on  Section  5. 

1.  Constitutional  Revisions. — An  innovation  agenda  can  include  enacting 
constitutional  changes  that  assure  consideration  of  the  interests  of  racial 
minorities  in  developing  election  policies.  Following  its  prolonged  redistricting 
litigation  of  the  1990s,  North  Carolina's  legislature  recognized  the  inherent 
inefficiency  in  enacting  district  maps  that  would  almost  immediately  face 
multiple  court  challenges.224  The  state  did  not  receive  final  judicial  approval  for 
all  of  its  legislative  districts  until  shortly  before  the  start  of  the  2000  line-drawing 
process.225  Much  of  the  debate  concerned  claims  that  the  state  had  violated 
certain  racial  fairness  norms.226  Not  only  did  the  courtroom  wrangling  cost  the 
state  valuable  time  and  money;  it  also  damaged  political  alliances  across  lines  of 
race  and  party  that  might  have  otherwise  pursued  a  broader  substantive  agenda. 


223.  See  generally  Tucker,  supra  note  69  (discussing  both  minority  and  bipartisan  efforts  in 
the  reauthorization  of  the  VRA). 

224 .  See  Richard  L.  Hasen,  You  Don 't  Have  to  Be  a  Structuralist  to  Hate  the  Supreme  Court 's 
Dignitary  Harm  Election  Law  Cases,  64  U.  MIAMI  L.  REV.  465,  468  (2010). 

225.  See  Jocelyn  F.  Benson,  A  Shared  Existence:   The  Current  Compatibility  of  the  Equal 
Protection  Clause  and  Section  5  of  the  Voting  Rights  Act,  88  Neb.  L.  REV.  124,  154-56  (2009). 

226.  Id. 


238  INDIANA  LAW  REVIEW  [Vol.  44:201 


To  avoid  this  problem,  the  legislature  adopted  a  series  of  reforms  in  its 
redistricting  provisions  to  avoid  the  problem  of  multiple,  never-ending  lawsuits. 
First,  the  changes  included  a  jurisdictional  provision  to  prevent  state  court 
litigants  from  forum  shopping  and  created  the  potential  for  consolidating  multiple 
claims.227  A  challenge  to  any  redistricting  plan  would  be  filed  in  a  single  court 
in  the  state's  capital,  and  the  hearing  would  be  conducted  by  a  specially 
appointed  panel  of  state  judges  representing  the  three  major  regions  of  the 
state.228  Most  importantly,  the  legislature  added  a  provision  laying  out  the 
substantive  priorities  that  would  guide  the  redistricting  process  in  future  years.229 
First  among  these  priorities  was  compliance  with  the  federal  rule  of  protecting 
the  interests  of  racial  minority  groups.230 

North  Carolina's  strategy  of  constitutional  revision  is  not  unique,  but  it  was 
the  first  to  fundamentally  shift  the  interests  of  stakeholders  in  a  preclearance 
jurisdiction.  Democrats  and  Republicans  alike  endorsed  this  reform  because  they 
saw  specific  benefits  in  this  legislation.  The  jurisdictional  rule  is  sensitive  to  the 
correlation  between  region  and  partisanship  in  the  design  of  the  court  panel, 
which  combined  judges  from  the  heavily  Republican  western  counties  with  those 
from  the  more  Democratic  eastern  counties.  The  state  entrenches  the  minority 
community's  participation  in  the  redistricting  process,  which  is  a  positive  factor 
in  federal  review.  Additionally,  the  constitutional  priorities  for  districts  require 
attention  to  multiple  legal  considerations — including  racial  fairness.  In  answer 
to  those  who  desired  a  constraint  on  traditional  gerrymandering,  for  example,  the 
rules  directed  line-drawers  to  avoid  separating  counties  wherever  possible.231  By 
making  the  protection  of  minority  political  power  a  primary  responsibility,  the 
system  assures  that  legislative  and  community  representatives  of  black  voters  will 
have  a  hand  in  shaping  the  contours  of  election  districts. 

2.  Non-Political  Actors. — A  more  common  innovation  route  is  creating  non- 
partisan bodies  to  make  important  structural  decisions  about  elections.  Today, 
several  states  employ  some  form  of  independent  commission  in  the  process  of 
designing  election  districts.  Arizona,  a  Section  5  state,  is  a  typical  example. 
Members  of  the  state  redistricting  commission  include  two  nominees  from  each 
political  party  and  one  independent.232  The  bipartisan  group  develops  a  plan  for 
state  and  federal  election  districts  following  a  series  of  public  hearings  that 
involve  a  variety  of  community  input.233  In  addition  to  using  witness  testimony 
to  inform  its  decisions,  the  commission  also  follows  criteria  defined  by  statute.234 


227.  See  Redistricting  Overview,  N.C.  Gen.  ASSEMB.,  http://www.ncga.state.nc.us/GIS/ 
RandR07/Overview.html  (last  visited  Nov.  14,  2010). 

228.  See  id. 

229.  Id. 

230.  See  id. 

231.  Id. 

232.  See  Rhonda  L.  Barnes,  Comment,  Redistricting  in  Arizona  Under  the  Proposition  106 
Provisions:  Retrogression,  Representation  and  Regret,  35  Ariz.  St.  L.J.  575,  578  (2003). 

233.  Mat  578-81. 

234.  Id.  at  580  (citing  Ariz.  Const,  art.  IV,  pt.  2,  §  1(23)). 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  239 


The  idea  behind  this  innovation  is  that  the  political  institutions  in  government  are 
overrun  by  partisan  actors  who  are  subject  to  the  pressures  of  re-election.  In 
service  to  their  party,  legislators  and  governors  may  resort  to  manipulating  the 
district  drawing  process  without  regard  to  the  concerns  of  the  voting  public.  The 
advantage  of  commissions  is  that  they  insulate  these  decisions  from  the  undue 
influence  of  partisanship  and  gridlock. 

A  reinvented  preclearance  system  could  empower  commissions  to  address 
a  wider  number  of  election  policy  choices.  Like  redisricting,  several  other  issues 
have  inherently  political  consequences  that  have  the  potential  to  hopelessly 
divide  legislatures  by  both  party  and  race.  The  implementation  of  photo 
identification  requirements  and  vote-by-mail  statutes,  for  example,  are  as 
appealing  to  one  party  as  they  are  threatening  to  another.  Each  of  these  policies 
also  raises  major  concerns  for  its  effect  on  the  political  power  of  racial  minority 
groups.  By  removing  the  most  severe  partisan  pressures,  a  commission  can 
consider  these  policy  ideas  on  their  merits  and  reach  decisions  that  reflect  the 
best  interests  of  the  jurisdiction  as  a  whole. 

A  related  point  to  make  about  this  approach  is  that  commissions  need  not 
have  final  decision-making  authority  to  work.  Like  budget  office  ratings,  a 
commission's  findings  can  be  just  as  effective  in  an  advisory  capacity.  Advisory 
commissions  can  pressure  political  institutions  to  take  account  of  certain  interests 
that  might  otherwise  be  ignored.  Christopher  Elmendorf  has  explored  how  the 
operation  of  advisory  bodies  can  enhance  important  policy  choices  in  a  variety 
of  settings.235  Among  them  is  the  constraint  on  political  institutions  that  can  be 
inclined  toward  manipulating  existing  rules  for  partisan  advantage.236  To  the 
extent  that  these  bodies  can  reflect  the  level  of  diversity  present  in  the 
jurisdiction,  advisory  commissions  may  be  a  positive  influence  on  the  work  of 
traditional  political  institutions.237  This  role  can  also  constrain  any  effort  by 
parties  to  supplant  the  principle  of  racial  fairness  in  the  political  process. 

3.  Mini-VRAs. — Finally,  innovation  strategies  can  improve  the  system  by 
replicating  the  basic  structure  of  the  federal  government's  voting  rights  remedies. 
As  with  the  antitrust  arena,  voting  rights  advocates  can  develop  a  set  of  "mini- 
remedies"  that  support  and  enhance  protections  available  in  the  federal  system.238 
In  this  regard,  California  legislators  approved  a  law  that  created  the  first  state- 
based  voting  rights  act  in  the  country.239  The  California  Voting  Rights  Act 
(CVRA)  supplements  rights  and  remedies  that  are  currently  available  under  the 
federal  Voting  Rights  Act.240  Among  other  things,  the  statute  entitles  groups  to 


235.  See  Christopher  S.  Elmendorf,  Representation  Reinforcement  Through  Advisory 
Commissions:  The  Case  of  Election  Law,  80  N.Y.U.  L.  REV.  1366,  1386-94  (2005). 

236.  See  id.  at  1405-17. 

237.  Id.  at  1417. 

238.  See,  e.g.,  Joaquin  G.  Avila  et  al.,  Voting  Rights  in  California:  1982-2006,  17  S.  Cal. 
Rev.  L.  &  Soc.  Just.  1 3 1 , 1 52  (2007)  (stating  that  the  California  Voting  Rights  Act  is  a  significant 
improvement  over  Section  2). 

239.  Id. 

240.  See  id. 


240  INDIANA  LAW  REVIEW  [Vol.  44:201 


sue  even  when  they  are  too  geographically  dispersed  to  elect  a  candidate  of 
choice  from  a  single  member  district  in  a  county.241  By  providing  evidence  of 
racially  polarized  voting,  a  plaintiff  is  entitled  under  the  CVRA  to  judicial 
remedies  that  include  (but  do  not  require)  the  imposition  of  proportional  voting 
systems  in  county  governments  that  would  prevent  minority  vote  dilution.242 

This  type  of  innovation  serves  both  substantive  and  procedural  interests. 
Substantively  speaking,  the  CVRA  expands  the  field  for  minority  voters  to 
pursue  greater  levels  of  political  power.  By  eliminating  the  geographic 
concentration  requirement  that  exists  in  federal  law,  the  state  leaves  open  the 
possibility  that  a  court  may  find  that  an  appropriate  remedy  might  be  an  election 
model  such  as  cumulative  voting.  Several  scholars  have  found  that  these 
approaches  offer  more  access  for  racial  minority  groups.243 

There  are  procedural  benefits  from  this  kind  of  approach  as  well.  First,  the 
statute  offers  a  greater  chance  for  experimentation  with  alternative  systems  of 
political  representation.244  By  adopting  new  election  structures  in  county 
governments,  scholars  and  policymakers  can  examine  the  effects  of  employing 
different  remedies  in  a  political  system.  Specifically,  these  studies  can  consider 
the  extent  to  which  these  reforms  change  political  mobilization,  party  divisions, 
and  policy  responsiveness.  That  information  can  be  helpful  for  future  cases  in 
which  courts  must  consider  the  merits  of  applying  these  remedies  in  other 
jurisdictions,  and  it  can  vastly  enhance  policy  discussions  about  the  propriety  of 
incorporating  these  structures  into  the  state's  normal  election  scheme. 

Perhaps  most  importantly,  adopting  this  kind  of  innovation  can  further  the 
jurisdiction's  march  toward  a  day  when  it  legislates  without  federal  oversight. 
Section  5  opponents  who  want  to  demonstrate  that  a  state  no  longer  requires 
coverage  might  well  rely  upon  the  adoption  of  internal  review  structures  as  the 
most  tangible  proof  that  minority  concerns  will  continue  to  be  addressed  in 
election-related  decisions.245  For  their  part,  racial  minority  groups  and  other 
advocates  of  Section  5  should  be  willing  to  accept  state -based  remedial 
protection  so  long  as  it  allows  them  to  maintain  a  seat  at  the  table  during  the 
policymaking  process.  With  a  commitment  that  these  structures  will  be 
permanent  parts  of  the  state's  system,  this  innovation  would  eliminate  the 
uncertainties  of  a  temporary  federal  protection.  No  longer  would  advocates  face 
the  awkward  position  in  reenactments  of  conceding  progress  in  gaining  access 
to  the  political  system  while  also  enumerating  multiple  ways  that  the  jurisdiction 
has  fallen  short. 


24 1 .  See  Thomburg  v.  Gingles,  478  U.S.  30, 80  ( 1 986)  (holding  that  the  federal  Voting  Rights 
Act  makes  the  geographic  concentration  of  a  racial  group  one  of  the  prerequisites  for  seeking 
statutory  remedies  available  under  Section  2). 

242.  Cal.  Elec.  Code  §§  14025-14032  (West  2009). 

243.  Such  scholars,  including  Michael  S.  Kang,  Lani  Guinier,  Kathleen  L.  Barber,  and  Lee 
Romney,  suggest  that  cumulative  voting  or  "instant  runoff'  voting  is  way  to  ensure  minority 
representation. 

244.  Cal.  Elec.  Code  §§  14025-14032  (West  2009). 

245.  See  supra  note  203  and  accompanying  text. 


20 1 0]  REINVENTING  VOTING  RIGHTS  PRECLEARANCE  24 1 


Conclusion 

This  Article  has  developed  in  broad  strokes  the  basis  for  an  alternative 
system  that  Congress  may  use  to  guide  any  future  reconsideration  of  the 
preclearance  system.  The  politics  around  this  statute  are  exceedingly  high  stakes, 
and  the  battle  lines  on  this  issue  are  exceedingly  well-defined.  Added  to  this  is 
the  volatile  confluence  of  the  partisanship  with  race,  which  makes  any 
consideration  of  a  new  approach  to  policymaking  a  tough  sell.  Yet  necessity 
(like  politics  itself)  tends  to  make  strange  bedfellows.  The  potential  for  a 
challenge  to  the  constitutionality  of  the  preclearance  system  makes  revisiting  the 
VRA  a  priority. 

Given  the  present  risks  inherent  in  simply  reenacting  past  debates  about  the 
statute,  this  Article  invites  legislators  to  consider  adopting  reinvention  as  an 
approach.  If  for  no  other  reason,  the  strategy  provides  each  side  in  the  traditional 
debate  with  something  to  embrace.  For  opponents  who  long  for  the  day  that  the 
federal  government  plays  no  role  in  its  decisionmaking,  the  approach  helps 
identify  the  steps  necessary  to  reach  that  goal.  Fairly  reflecting  the  desires  of  all 
the  stakeholders  in  preclearance,  the  approach  would  provide  a  tangible  route  to 
a  "clean  bill  of  health."  At  the  same  time,  those  who  have  ardently  fought  to 
defend  the  preclearance  system  can  appreciate  the  commitment  to  devise 
permanent  tools  that  will  entrench  access  to  minority  political  power.  With 
structures  in  place  to  encourage  cooperation  across  lines  of  race  and  party,  a 
reinvented  system  will  promote  transformed  jurisdictions  that  give  full  meaning 
to  the  principles  of  preclearance. 


After  Citizens  United 


Michael  S.  Kang* 


Introduction 

Citizens  United  v.  FEC1  may  prove  to  be  the  most  important  campaign 
finance  decision  in  decades  as  a  critical  step  in  a  transformation  of  campaign 
finance  law  under  the  Roberts  Court.  The  decision  explicitly  overruled 
longstanding  Court  precedent  and  struck  down  as  unconstitutional  federal 
prohibitions  on  the  use  of  corporate  treasury  funds  for  campaign  finance 
expenditures  in  connection  with  federal  elections.2  In  short,  federal  law  that 
blocked  corporations  from  spending  treasury  funds  on  federal  campaign  speech 
was  struck  down,  and  by  extension,  similar  state  laws  modeled  after  federal  law 
also  were  struck  down  as  they  applied  to  state  and  local  elections.3  Although  the 
immediate  public  reaction  focused  on  the  potential  for  increased  corporate 
spending  in  elections,  the  much  larger  importance  of  the  case  is  the  signal  from 
the  Court  about  the  direction  of  campaign  finance  law  going  forward. 

The  doctrinal  payoff  of  Citizens  United  is  a  substantial  narrowing  of  the 
government  interest  in  campaign  finance  regulation.  The  permissible  grounds  for 
campaign  finance  regulation  had  subtly  expanded  under  the  Rehnquist  Court, 
which  consistently  deferred  to  the  government  and  upheld  a  variety  of  campaign 
finance  regulations.4  Citizens  United,  reflecting  Justice  Kennedy's  views 
previously  expressed  mainly  in  dissent,  represents  the  Roberts  Court's  clear 
reversal  of  that  trend  and  a  narrow  focus  on  quid  pro  quo  corruption  as  the 
exclusive  grounds  for  government  regulation.5 

Although  much  of  the  immediate  reaction  to  Citizens  United  focused  on  the 
decision's  short-term  impact  on  political  spending,  the  doctrinal  impact  of  the 
decision  is  likely  to  be  more  significant.  There  were  several  cases  rising  up 
through  the  lower  courts  whose  complexions  were  transformed  by  Citizens 
United and  the  ascendance  of  Justice  Kennedy's  views  on  campaign  finance  law.6 
Although  the  degree  to  which  the  Roberts  Court  will  extend  the  basic  logic  of 
Justice  Kennedy's  majority  opinion  in  Citizens  United  is  of  course  uncertain,  the 


*  Associate  Professor,  Emory  University  School  of  Law.  Many  thanks  to  Bobby  Ahdieh, 
Rick  Garnett,  Allison  Hayward,  Craig  Holman,  Lloyd  Mayer,  Mike  Pitts,  and  Robert  Schapiro  for 
their  comments  on  earlier  drafts. 

1.  130S.  Ct.  876(2010). 

2.  Id.  at  913. 

3.  See  id 

4.  See,  e.g.,  McConnell  v.  Fed.  Election  Comm'n,  540  U.S.  93  (2003),  overruled  in  part  by 
Citizens  United,  130  S.  Ct.  876;  Fed.  Election  Comm'n  v.  Colo.  Republican  Fed.  Campaign 
Comm.,  533  U.S.  431  (2001);  Nixon  v.  Shrink  Missouri  Gov't  PAC,  528  U.S.  377  (2000);  Austin 
v.  Mich.  Chamber  of  Commerce,  494  U.S.  652  (1990). 

5.  Citizens  United,  130  U.S.  at  908. 

6.  Long  Beach  Area  Chamber  of  Commerce  v.  City  of  Long  Beach,  603  F.3d  684, 699  (9th 
Cir.  2010);  SpeechNow.org  v.  Fed.  Election  Comm'n,  599  F.3d  686, 689  (D.C.  Cir.  2010), petition 
for  cert,  filed;  Emily's  List  v.  Fed.  Election  Comm'n,  581  F.3d  1,  8  (D.C.  Cir.  2009). 


244  INDIANA  LAW  REVIEW  [Vol.  44:243 


application  of  Citizens  United  to  these  cases  could  transform  campaign  finance 
law  as  it  has  stood  for  decades. 

In  Part  I,  I  explain  that  Citizens  United  itself  is  markedly  detached  from 
political  reality.  Citizens  United  reinforces  and  depends  upon  the  greatest 
absurdity  of  campaign  finance  law — that  independent  expenditures  pose  no  threat 
of  campaign  finance  corruption.  In  Part  II,  I  explore  the  doctrinal  consequences 
of  Citizens  United  for  the  future  of  campaign  finance  law.  I  explain  that  if 
extended  to  its  logical  extremes,  Citizens  United  undercuts  the  constitutionality 
of  much  campaign  finance  regulation.  As  a  result,  Citizens  United  is  an 
important  signal  of  the  Roberts  Court's  direction  in  this  area  and  may  be  a 
turning  point  in  the  development  of  campaign  finance  law. 

I.  The  Meaning  of  Citizens  United 

Citizens  United  struck  down  as  unconstitutional  federal  prohibitions  on 
corporate  expenditures  in  connection  with  federal  elections.7  The  case  arose 
when  Citizens  United,  a  small  corporation  with  a  budget  of  $12  million,  funded 
a  ninety-minute  documentary  about  then-Senator  Hillary  Clinton,  who  was  a 
candidate  for  the  Democratic  presidential  nomination  in  2008. 8  Citizens  United 
sought  to  release  the  documentary  on  cable  video-on-demand,  as  well  as 
broadcast  television  advertisements  for  the  documentary,  within  thirty  days  of  the 
2008  primary  elections.  However,  as  a  corporation,  Citizens  United  was 
prohibited  under  federal  law9  from  publicly  distributing  what  amounted  to 
electioneering  communications  in  the  form  of  the  documentary  and 
advertisements.10  Citizens  United  initially  challenged  the  federal  prohibitions  on 
several  grounds,  including  the  claim  that  cable  video-on-demand  did  not 
constitute  a  prohibited  public  distribution,  but  it  did  not  press  the  Court  on  the 
facial  constitutionality  of  the  federal  prohibition  on  corporate  electioneering. 
After  oral  argument,  though,  the  Court  surprised  nearly  everyone  by  ordering 
rebriefing  and  reargument  on  this  larger  question. 1 1  Only  after  a  second  briefing 
and  argument,  the  Court  decided  in  Citizens  United  that  there  was  no 
constitutional  basis  for  "allowing  the  [government  to  limit  corporate 
independent  expenditures."12 

The  majority  opinion  in  Citizens  United  framed  the  basic  issue  of  the  case 
as  whether  "the  [government  may  impose  restrictions  on  certain  disfavored 
speakers"13 — namely,  corporations — but  in  so  doing,  the  Court  asked  the  wrong 


7.  Citizens  United,  130  S.  Ct.  at  913. 

8.  Id.  at  887. 

9.  2  U.S.C.  §  441b(b)(2)  (2006),  invalidated  by  Citizens  United,  130  S.  Ct.  at  913. 

10.  Id.  §  434(f)(3)  (defining  "electioneering  communication"  as  any  "broadcast,  cable,  or 
satellite  communication  which  . . .  refers  to  a  clearly  identified  candidate  for  [f]ederal  office"  made 
proximate  to  an  election,  targeted  to  the  relevant  electorate). 

1 1 .  Citizens  United,  130  S.  Ct.  at  888. 

12.  Mat  913. 

13.  Id.  at  899. 


20 1 0]  AFTER  CITIZENS  UNITED  245 


set  of  questions.  Corporations  are  not  the  relevant  actors  whose  rights  we  ought 
to  be  concerned  about  protecting.  Corporations  are  not  people,  nor  are  they 
entitled  to  all  the  constitutional  rights  of  individual  citizens.  But  as  many 
supporters  of  Citizens  United  correctly  argue,  we  nonetheless  invest  institutions 
such  as  corporations  and  political  parties  with  constitutional  entitlements  when 
it  appropriately  serves  the  rights  of  individuals  who  constitute  those  institutions. 
And  yes,  corporate  expenditures  would  be  a  more  efficient  way  for  shareholders 
to  convert  treasury  funds  into  political  speech.  However,  all  campaign  finance 
regulation  complicates  the  ability  of  shareholders  and  other  individuals  to  direct 
funds  to  political  speech.  In  other  words,  the  fact  that  a  government  restriction 
makes  shareholder  speech  more  difficult  is  obviously  insufficient  by  itself  to 
justify  a  constitutional  prohibition  of  that  restriction — we  need  to  know  much 
more  about  how  shareholders'  expressive  interests  are  compromised,  if  at  all,  to 
a  degree  that  requires  the  Court  to  intervene. 

It  is  unclear  how  shareholders  are  inappropriately  disadvantaged  by 
prohibitions  on  corporate  expenditures  struck  down  in  Citizens  United. 
Shareholders  are  not  disadvantaged  by  their  decision  to  incorporate,  because  they 
always  remain  free  to  make  independent  expenditures  on  an  unlimited  basis  in 
their  individual  capacity,  just  like  non-shareholders  and  everyone  else.  The 
analysis  might  be  different  if  shareholders  were  in  a  worse  position  than 
non-shareholders,  but  they  are  not.  Just  as  non-shareholders  can  aggregate  funds 
through  a  political  action  committee  (PAC)  or  political  party,  so  too  can 
shareholders.  Perhaps  the  government  should  allow  corporate  expenditures  and 
simply  expect  non-shareholders  to  incorporate  as  well,  but  whether  the 
Constitution  prohibits  the  government  from  refusing  to  do  so  is  a  different 
matter. 

What  functional  difference  does  Citizens  United  achieve  by  permitting 
corporations  to  spend  treasury  funds  on  independent  expenditures?  A  key 
difference  is  that  shareholders  obtain  the  advantage  of  streamlined  aggregation 
through  the  corporation,  as  opposed  to  other  entities.  For  non-shareholders  to 
aggregate  their  money,  they  must  pool  funds,  subject  to  personal  income  tax,  by 
contributing  individually  to  a  PAC  or  political  party.  The  PAC  or  party  collects 
their  pooled  money,  but  it  does  so  only  subject  to  applicable  restrictions  on 
contributions  under  campaign  finance  law.  By  contrast,  the  post-Citizens  United 
corporation  may  serve  as  both  a  source  of  funds  and  the  pooling  entity  for  those 
funds  all  at  once  for  its  shareholders.  It  can  pool  shareholder  money  simply  by 
retaining  earnings,  instead  of  distributing  dividends  to  shareholders  who  would 
then  need  to  aggregate  those  funds  through  a  separate  entity.  This  streamlined 
aggregation  not  only  lowers  transaction  costs,  but  also  uses  pre-tax  dollars  (for 
purposes  of  personal  income  tax)  and  bypasses  restrictions  on  contributions.14 


14.  To  the  degree  that  the  corporation's  major  purpose  becomes  making  or  receiving 
contributions  and  expenditures,  the  corporation  may  be  classified  as  a  "political  committee"  under 
federal  campaign  finance  law  that  is  subject  to  contribution  limits.  However,  it  is  not  clear  at  the 
moment  that  even  such  a  corporation  would  be  limited  in  the  amount  of  its  own  independent 
expenditures  out  of  its  treasury  funds.  Thanks  to  Allison  Hayward  for  suggesting  this  footnote. 


246  INDIANA  LAW  REVIEW  [Vol.  44:243 


Aggregation  through  PACs  and  parties  is  quite  inefficient  by  comparison.  It  is 
therefore  difficult  to  understand  why  shareholders  should  be  constitutionally 
entitled  to  this  advantage.  And  it  is  also  difficult  to  understand  why  speech  by 
PACs  and  political  parties,  whose  First  Amendment  credentials  are  at  least  as 
strong  in  this  context  as  for-profit  corporations,  would  receive  less  constitutional 
protection. 

The  justification,  according  to  Citizens  United,  is  doctrinal  consistency  with 
Buckley  v.  Valeo}5  Citizens  United  strives  for  consistency  with  the  original 
determination  in  Buckley  that  there  is  no  government  interest  in  limiting 
independent  expenditures.16  According  to  Buckley,  independent  expenditures 
present  no  risk  of  corruption,  and  therefore  government  regulation  restricting 
independent  expenditures  is  unconstitutional  regardless  of  the  funding  source.17 
Of  course,  in  Austin  v.  Michigan  Chamber  of  Commerce,  the  Court  engaged  in 
doctrinal  calisthenics  to  avoid  this  conclusion  and  upheld  a  prohibition  on 
corporate  expenditures.18  Citizens  United  overruled  Austin  for  this  reason  and 
mocked  it  as  "not  well  reasoned."19  Although  this  criticism  is  understandable  in 
certain  respects,  Citizens  United 's  confidence  in  the  original  correctness  of 
Buckley  is  not.  If  Austin  was  not  well  reasoned,  exactly  the  same  can  be  said 
about  Buckley. 

Buckley  is  absurd  as  a  matter  of  political  reality  in  its  constitutional  assertion 
that  contributions  are  potentially  corrupting,  but  that  independent  expenditures 
are  not  at  all.20  Citizens  United  depends  on  this  absurdity  from  Buckley,  without 
any  reservation  about  its  unreality.21  Notably,  Justice  Kennedy  devoted  only  a 
single  paragraph  from  his  fifty-six-page  majority  opinion  to  dismissing  the 
relevance  of  his  recent  majority  opinion  in  Caperton  v.  A.  T.  Massey  Coal  Co.,22 
which  recognized  the  corrupting  potential  of  independent  expenditures.23  Of 
course,  Caperton  involved  a  different  remedy  than  the  government  sought  in 
Citizens  United24,  as  Justice  Kennedy  notes,  but  both  cases  hinged  on  a  critical 
judgment  about  the  plausibility  of  corruption  from  independent  expenditures.  In 
Caperton,  Kennedy's  answer  was  basically  yes.   Only  a  year  later  n  Citizens 


15.  See  Citizens  United,  130  S.  Ct.  at  913. 

16.  Id.  at  902  (citing  Buckley  v.  Valeo,  424  U.S.  1,  47-48  (1976)). 

17.  Buckley,  424  U.S.  at  46,  5 1 . 

18.  Austin  v.  Mich.  Chamber  of  Commerce,  494  U.S.  652,  668-69  (1970),  overruled  by 
Citizens  United,  130  S.  Ct.  876. 

19.  Citizens  United,  130  S.  Ct.  at  912. 

20.  See  Buckley,  424  U.S.  at  261  (White,  J.,  concurring  in  part  and  dissenting  in  part);  C. 
Edwin  Baker,  Campaign  Expenditures  and  Free  Speech,  33  Harv.  C.R.-C.L.  L.  Rev.  1 ,  47  (1 998). 

21.  See  Citizens  United,  130  S.  Ct.  at  909  (concluding  "that  independent  expenditures, 
including  those  made  by  corporations,  do  not  give  rise  to  corruption  or  the  appearance  of 
corruption"). 

22.  129S.  Ct.  2252(2009). 

23.  Citizens  United,  130  S.  Ct.  at  910  (citing  Caperton  v.  A.T.  Massey  Coal  Co.,  129  S.  Ct. 
2252,  2263-64  (2009)). 

24.  Id. 


20 1 0]  AFTER  CITIZENS  UNITED  247 


United,  his  answer  was  no.  There  are  ways  to  distinguish  the  cases,  but  the 
summary  dismissal  of  Caperton  is  utterly  unconvincing.  If  the  payoff  from 
Citizens  United  is  doctrinal  consistency,  there  is  no  payoff  at  all. 

The  inconsistency  between  Buckley  and  Austin,  now  resolved  by  Citizens 
United,  was  a  tension  intrinsic  to  campaign  finance  law  and  not  necessarily  a 
failing  in  the  actual  practice  of  campaign  finance  law.  Campaign  finance  law  is 
a  compromise  in  terms  of  both  law  and  democratic  values.  It  imperfectly 
expresses  tension  between  abstract  notions  of  liberty  and  equality.  It  expresses 
tension  between  unease  about  government  restriction  of  speech  on  one  hand  and 
concern  about  the  influence  of  economic  power  on  the  other  hand.  The  need  for 
campaign  finance  law  to  negotiate  these  tensions — with  legal  categories  that  do 
not  fully  capture  their  nuances — accounts  for  many  logical  failings  of  Buckley, 
Austin,  and  McConnell  v.  FEC25  that  are  difficult  to  justify  as  consistent  First 
Amendment  doctrine.26  However,  campaign  finance  law  as  a  whole,  over  the 
course  of  many  cases,  arguably  sought  pragmatic  balance  between  these  legal  and 
democratic  values.  Citizens  United,  by  contrast,  charts  a  very  different,  more 
doctrinaire  course. 

Justice  Kennedy  and  Chief  Justice  Roberts  contended  that  the  Court  had  no 
choice  but  to  decide  Citizens  United  on  such  broad  grounds,27  but  the  Court  could 
have  dispensed  with  Citizens  United  on  many  alternate,  narrower  grounds. 
Indeed,  Citizens  United' s  legal  challenges  were  focused  overwhelmingly  on  just 
such  narrower  grounds.  Citizens  United  had  dropped  its  facial  challenge  to  the 
constitutionality  of  the  prohibition  on  corporate  electioneering  communications 
before  the  district  court  and  did  not  try  to  raise  it  on  appeal.28  What  is  more, 
Citizens  United  did  not  even  cite  Austin  in  its  jurisdictional  statement  and  later 
raised  the  argument  that  Austin  should  be  overruled  only  incidentally  in  its 
briefing  on  the  merits.29  The  Court  itself  decided  to  focus  on  these  broader 
questions  and,  on  its  own  initiative,  ordered  rebriefing  and  reargument  on  them 
after  initial  oral  argument. 

It  also  is  silly  to  argue  that,  in  Citizens  United,  the  Court  had  to  lump 
together  for-profit  and  non-profit  corporations  because  of  the  facts  of  the  case. 
This  argument  neglects  the  important  insight  that  lumping  together  for-profit  and 
non-profit  corporations  might  have  been  the  Court's  decided  intention.  If  the 
Court  desired  a  narrower  ruling  limited  to  non-profits,  it  could  have  done  so  on 
cleaner  facts  in  FEC  v.  Wisconsin  Right  to  Life30  or  simply  waited  for  a  better 
case — one  that  did  not  involve  a  non-profit  that  received  money  from  for-profit 
corporations.  The  Court'  clear  insistence  on  overruling  A  ustin  in  Citizens  United 


25.  540  U.S.  93  (2003),  overruled  in  part  by  Citizens  United,  130  S.  Ct.  876.. 

26.  See  Kathleen  M.  Sullivan,  Political  Money  and  Freedom  of  Speech,  30  U.C.  DAVIS  L. 
Rev.  663,  667  (1997)  (characterizing  Buckley  as  an  "attempt  to  solve  an  analogical  crisis  by 
splitting  the  difference"). 

27.  See  Citizens  United,  130  S.  Ct.  at  892;  id.  at  918-19  (Roberts,  C.J.,  concurring). 

28.  Id.  at  892  (majority  opinion). 

29.  See  id.  at  932  (Stevens,  J.,  dissenting). 

30.  551  U.S.  449,  458-60  (2007). 


248  INDIANA  LAW  REVIEW  [Vol.  44:243 


may  therefore  be  connected  to  the  fact  that  doing  so  arguably  required  lumping 
together  for-profits  and  non-profits.  If  that  was  the  underlying  judicial  intention, 
it  is  only  more  reason  to  criticize  the  decision,  not  defend  it. 

II.  Citizens  United — Looking  Ahead 

What  does  Citizens  United  signify  for  the  future  of  campaign  finance  law? 
Although  I  have  criticized  Citizens  United,  another  view  of  Justice  Kennedy's 
majority  opinion  is  that  it  represents  only  the  first  step  of  a  comprehensive 
rethinking  of  campaign  finance  law.  Citizens  United  may  not  make  great  sense 
only  because  the  Court  is  not  yet  finished  with  what  is  a  longer  process  that  will 
extend  over  many  decisions  and  years.  In  this  part,  I  present  Justice  Kennedy's 
view  of  corruption  as  a  touchstone  for  the  Court's  campaign  finance 
jurisprudence  going  forward  and  then  apply  it  to  several  key  issues  that  courts 
will  face  over  the  next  couple  years.  The  ultimate  result  may  be  a  transformation 
of  campaign  finance  law  under  the  Roberts  Court. 

A.  Justice  Kennedy  and  the  Roberts  Court 

Campaign  finance  law  is  an  area  of  striking  divergence  by  the  Roberts  Court 
from  the  jurisprudence  of  the  Rehnquist  Court  that  preceded  it.  The  Rehnquist 
Court  had  become  so  deferential  to  the  government  on  campaign  finance 
regulation  that  Richard  Hasen  went  so  far  as  to  call  a  series  of  its  decisions  the 
"New  Deference  Quartet."31  In  a  line  of  cases  that  included  Austin  and 
McConnell,  the  Rehnquist  Court  consistently  upheld  campaign  finance  regulation 
under  increasingly  expansive  conceptions  of  the  government  interest  in 
preventing  actual  and  apparent  corruption.  Austin  upheld  campaign  finance 
regulation  based  on  the  prevention  of  a  different  form  of  corruption — a  distortion 
of  the  political  discourse  from  the  corrosive  effects  of  corporate  money.32 
McConnell  upheld  provisions  of  the  Bipartisan  Campaign  Reform  Act  (BCRA) 
based  on  the  prevention  of  improper  influence  and  opportunities  for  abuse  that 
extended  beyond  the  usual  concern  about  quid  pro  quo  arrangements.33 

The  Roberts  Court,  by  contrast,  has  now  struck  down  campaign  finance 
regulation  by  5-4  votes  in  a  series  of  cases,  only  the  most  recent  and  most 
dramatic  of  which  is  Citizens  United.  The  replacement  of  Chief  Justice 
Rehnquist  and  Justice  O'Connor  with  Chief  Justice  Roberts  and  Justice  Alito 
produced  a  clear  rightward  shift  in  the  Court's  campaign  finance  decisions.34  In 


3 1 .  Richard  L.  Hasen,  Buckley  Is  Dead,  Long  Live  Buckley:  The  New  Campaign  Finance 
Incoherence  o/McConnell  v.  Federal  Election  Commission,  153  U.  Pa.  L.  Rev.  31,  68  (2004). 

32.  Austin  v.  Mich.  Chamber  of  Commerce,  494  U.S.  652,  668-69  (1990),  overruled  by 
Citizens  United,  130  S.  Ct.  876. 

33.  McConnell  v.  Fed.  Election  Comm'n,  540  U.S.  93,  188-89  (2003),  overruled  in  part  by 
Citizens  United,  130  S.  Ct.  876. 

34.  See  Daniel  R.  Ortiz,  The  Difference  Two  Justices  Make:  FEC  v.  Wisconsin  Right  to  Life, 
Inc.  II  and  the  Destabilization  of  Campaign  Finance  Regulation,  1  Alb.  Gov't  L.  Rev.  141,  142 
(2008). 


20 1 0]  AFTER  CITIZENS  UNITED  249 


Randall  v.  Sorrell,  the  Court  struck  down  contribution  limits  and  expenditures 
in  Vermont.35  In  Wisconsin  Right  to  Life,  Inc.  v.  FEC,  the  Court  permitted  an 
as-applied  challenge  to  provisions  of  BCRA  already  upheld  on  a  facial  basis  in 
McConnell.36  Then,  in  Wisconsin  Right  to  Life  II,  the  Court  held  back  from 
striking  down  those  provisions  outright  by  overruling  McConnell,  but  the  Court 
aggressively  reinterpreted  the  holding  of  McConnell  to  limit  the  government's 
ability  to  regulate  corporate  and  union  campaign  electioneering.37  The  Court 
effectively  overruled  critical  provisions  of  McConnell,  while  denying  that  fact 
of  the  matter.  By  Citizens  United,  though,  a  5-4  majority  of  the  Court  eagerly 
and  explicitly  acknowledged  its  overruling  of  McConnell  and  Austin.3* 

Justice  Kennedy  is  the  swing  vote  on  the  Roberts  Court  with  regard  to 
campaign  finance  and  many  other  areas  of  law.39  His  views  are  quite  likely  to 
direct  the  Court's  campaign  finance  decisions  going  forward  from  Citizens 
United,  and  it  is  for  this  reason  that  Citizens  United  appears  to  be  a  turning  point 
for  campaign  finance  law.  Justice  Kennedy's  view  on  the  government's 
constitutional  interest  in  regulating  campaign  finance  is  quite  clear — it  is  focused 
narrowly  on  the  prevention  of  quid  pro  quo  corruption.  In  McConnell,  Justice 
Kennedy  argued  in  dissent  against  the  Court'  attempt  "to  establish  that  the 
standard  defining  corruption  is  broader  than  conduct  that  presents  a  quid  pro  quo 
danger."40  In  Justice  Kennedy's  view,  only  actual  or  apparent  quid  pro  quo 
corruption  offers  sufficient  grounds  for  government  regulation  because  it  is  the 
"single  definition  of  corruption  [that]  has  been  found  to  identify  political 
corruption  successfully  and  to  distinguish  good  political  responsiveness  from 
bad."41  Justice  Kennedy  would  therefore  have  struck  down  soft  money 
prohibitions  on  parties  who  had  no  direct  access  themselves  to  the  levers  of 
government  and  could  offer  only  access  and  influence  to  candidates  and 
officeholders  who  would.  The  maj  ority  in  McConnell  rej  ected  Justice  Kennedy '  s 
"crabbed  view  of  corruption"  as  ignorant  of  "the  realities  of  political 
fundraising."42  However,  following  the  replacement  of  two  Justices  and  the 
Citizens  United  decision,  Justice  Kennedy's  position  appears  now  to  have 
prevailed  on  the  Roberts  Court. 

Justice  Kennedy's  narrow  view  of  corruption  has  profound  implications  that 
sweep  across  almost  every  aspect  of  campaign  finance  law.  In  Citizens  United, 
Justice  Kennedy  cited  his  dissent  from  McConnell  and  declared  assertively  that 


35.  Randall  v.  Sorrell,  548  U.S.  230,  262-63  (2006). 

36.  Wis.  Right  to  Life,  Inc.  v.  Fed.  Election  Comm'n,  546  U.S.  410,  412  (2006). 

37.  Fed.  Election  Comm'n  v.  Wis.  Right  to  Life,  Inc.  551  U.S.  449,  482  (2007). 

38.  Citizens  United  v.  Fed.  Election  Comm'n,  130  S.  Ct.  876,  913-15  (2010)  (overruling 
Austin  and  part  of  McConnell). 

39.  See  Lee  Epstein  &  Tonja  Jacobi,  Super  Median,  6 1  Stan.  L.  Rev.  37  (2008)  (identifying 
Kennedy  as  the  super  median  justice  on  the  Roberts  Court). 

40.  McConnell  v.  Fed.  Election  Comm'n,  540  U.S.  93, 293  (2003)  (Kennedy,  J.,  concurring 
in  part  and  dissenting  in  part),  overruled  in  part  by  Citizens  United,  130  S.  Ct.  876. 

41.  Id.  at  297. 

42.  Id.  at  152  (majority  opinion). 


250  INDIANA  LAW  REVIEW  [Vol.  44:243 


"[w]hen  Buckley  identified  a  sufficiently  important  governmental  interest  in 
preventing  corruption  or  the  appearance  of  corruption,  that  interest  was  limited 
to  quid  pro  quo  corruption."43  The  insufficient  connection  between  the  corporate 
and  union  prohibitions  of  2  U.S.C.  §  441b  and  the  prevention  of  quid  pro  quo 
corruption  were  therefore  grounds  for  unconstitutionality  in  Citizens  United.  But 
narrowing  the  government's  interest  in  preventing  corruption  has  consequences 
that  extend  well  beyond  the  regulations  struck  down  in  Citizens  Unite d  because 
virtually  all  campaign  finance  regulation  depends  on  this  anti-corruption 
rationale  for  its  constitutionality. 

B.  Campaign  Finance  Lavs  After  Citizens  United 

Taken  to  its  logical  extreme,  Justice  Kennedy's  view  of  corruption  may  limit 
campaign  finance  restrictions  to  not  much  beyond  the  regulation  of  contributions 
to  candidates  and  officeholders.  Only  candidates  and  officeholders  possess 
access  to  government  power  that  gives  rise  to  the  risk  of  a  quid  pro  quo 
exchange.  As  Justice  Kennedy  argued  in  McConnell,  "the  corruption  interest 
only  justifies  regulating  candidates'  and  officeholders'  receipt  of  what  we  can 
call  the  'quids'  in  the  quid  pro  quo  formulation."44  In  the  absence  of  a 
contribution  to  a  candidate  or  officeholder,  the  government's  interest  in 
regulation  might  be  similarly  absent.  As  a  result,  under  a  robust  application  of 
this  theory,  there  may  be  insufficient  government  interest  in  regulating 
contributions  to  political  parties,  political  action  committees,  and  interest  groups 
when  those  funds  are  used  only  for  independent  expenditures.  Even  if  the  Court 
does  not  adopt  the  narrow  view  of  corruption  to  this  extreme,  Justice  Kennedy's 
view  from  Citizens  United  will  nonetheless  have  significant  influence  in  many 
cases  that  bubble  up  from  lower  courts  in  the  years  to  come. 

1.  Contributions. — As  an  initial  matter,  the  basic  logic  of  Citizens  United 
might  apply  just  as  well  to  corporate  contributions  as  to  corporate  independent 
expenditures.  Of  course,  Citizens  United  dealt  only  with  the  federal  prohibition 
on  corporate  expenditures,  not  the  parallel  prohibition  on  corporate 
contributions.45  However,  Citizens  United  makes  clear  that  "the  First 
Amendment  does  not  allow  political  speech  restrictions  based  on  a  speaker's 
corporate  identity."46  Indeed,  Citizens  Unite  d  emphasized  the  irrelevance  of  the 
corporate  source  of  funds  in  the  First  Amendment  analysis.47  By  extension,  the 
corporate  source  of  a  contribution  may  be  irrelevant  as  well.  Although 
contribution  limits  might  apply  to  corporate  contributions  just  as  they  do  to 
individual  or  committee  contributions,  it  might  be  difficult  to  justify  a  flat 
discriminatory  prohibition  on  corporate  contributions,  as  a  constitutional  matter, 


43.  Citizens  United,  130  S.  Ct.  at  909. 

44.  McConnell,  540  U.S.  at  293  (2003)  (Kennedy,  J.,  concurring  in  part  and  dissenting  in 
part). 

45.  Citizens  United,  130  S.  Ct.  886. 

46.  Id.  at  903. 

47.  Id.  at  904. 


20 1 0]  AFTER  CITIZENS  UNITED  25 1 


under  the  broad  language  and  logic  of  Citizens  United.4* 

Even  more  intriguing  are  the  implications  of  Citizens  United' s  deeper 
reasoning  for  the  regulation  of  contributions  as  a  general  matter,  whatever  their 
source.  The  reasoning  of  Citizens  United  placed  great  weight  on  the  premises 
that  (1)  only  contributions  to  candidates  and  officeholders  pose  a  threat  of  quid 
pro  quo  corruption;  and  (2)  independent  expenditures  do  not  pose  that  risk.49 
Under  this  logic,  the  Court  may  be  skeptical  about  a  risk  of  quid  pro  quo 
corruption  inherent  in  a  contribution  to  someone  other  than  a  candidate  or 
officeholder,  at  least  when  those  funds  are  not  later  used  to  make  a  contribution 
to  a  candidate  or  officeholder.  Put  another  way,  contributions  to  a  non-connected 
political  committee  that  uses  those  funds  to  make  only  independent  expenditures 
may  pose  no  more  threat  of  quid  pro  quo  corruption  than  independent 
expenditures  by  the  initial  contributor  herself.  Neither  the  independent 
expenditure,  nor  the  contribution  to  fund  another's  independent  expenditure, 
would  involve  a  contribution  directly  to  a  candidate  or  officeholder,  and 
therefore  neither  scenario  would  pose  the  risk  of  quid  pro  quo  corruption 
constitutionally  necessary  for  government  regulation. 

This  extension  of  Citizens  United  was  pivotal  in  a  case  recently  decided  by 
the  District  of  Columbia  Circuit  involving  just  such  facts.  In  SpeechNow.org  v. 
Federal  Election  Commission,  the  D.C.  Circuit  considered  the  constitutionality 
of  contribution  limits  as  applied  to  a  non-connected  527  organization  that 
received  contributions  solely  for  the  purpose  of  making  independent 
expenditures.50  The  use  of  contributions  to  make  expenditures  had  routinely  been 
sufficient  for  decades  under  the  Federal  Election  Campaign  Act  (FECA)  and 
Buckley  to  justify  government  application  of  federal  campaign  restrictions — most 
importantly,  contribution  limits — to  organizations  like  SpeechNow.  However, 
SpeechNow  did  not  make  contributions  to  candidates,  and  thus,  following 
Citizens  United,  it  arguably  posed  no  direct  risk  of  quid  pro  quo  corruption  in  its 
activities.51  Under  this  logic,  the  D.C.  Circuit  struck  down  contribution  limits 
and  other  restrictions  as  applied  to  such  groups.52 


48.  In  Federal  Election  Commission  v.  Beaumont,  539  U.S.  146  (2003),  the  Court  upheld  a 
federal  prohibition  on  contributions  as  they  apply  to  MCFL  nonprofit  corporations,  even  though 
such  corporations  were  constitutionally  exempt  from  the  federal  prohibition  on  corporate 
independent  expenditures.  Id.  at  163.  However,  Beaumont  was  decided  before  Citizens  United  and 
relied  instead  on  precedent  much  more  suspicious  of  corporate  influence  on  the  political  process 
than  Citizens  United. 

49.  Citizens  United,  130  S.  Ct.  at  908. 

50.  SpeechNow.org  v.  Fed.  Election  Comm'n,  599  F.3d  686, 689  (D.C.  Cir.  20 1 0),  petition 
for  cert,  filed;  see  also  Long  Beach  Area  Chamber  of  Commerce  v.  City  of  Long  Beach,  603  F.3d 
684, 699  (9th  Cir.  2010)  (striking  down  as  unconstitutional  limits  on  expenditures  by  persons  who 
have  received  contributions),  petition  for  cert,  filed;  N.C.  Right  to  Life,  Inc.  v.  Leake,  525  F.3d  274, 
291-93  (4th  Cir.  2008)  (declaring  unconstitutional  a  state  contribution  limit  as  applied  to  a 
committee  making  only  independent  expenditures). 

5 1 .  SpeechNow.org,  599  F.3d  at  696. 

52.  Id. 


252  INDIANA  LAW  REVIEW  [Vol.  44:243 


I  argued  earlier  that  Citizens  United  allows  for-profit  corporations  to  be  more 
efficient  aggregators  of  campaign  funds,  mainly  because  they  effectively 
aggregate  without  being  subject  to  contribution  limits.  However,  the  decision  by 
the  D.C.  Circuit  extending  the  reasoning  of  Citizens  United  to  SpeechNow  allows 
similar  non-connected  groups  to  aggregate  without  restriction  by  contribution 
limits.53  In  other  words,  Citizens  United  may  have  advantaged  corporations 
vis-a-vis  other  types  of  collective  organizations  only  momentarily  until  the  FEC 
or  courts  extend  the  decision's  larger  logic  to  all  groups  that  do  not  engage  in 
contributions  to  candidates  and  officeholders. 

2.  Soft  Money. — After  Citizens  United,  the  unconstitutionality  of  campaign 
finance  regulation  is  even  clearer  for  restrictions  on  money  used  for  purposes 
other  than  express  campaign  speech.  Buckley  limited  the  constitutionally 
permissible  scope  of  government  regulation  to  what  it  called  "explicit  words  of 
advocacy,"  or  communications  that  expressly  advocate  the  election  or  defeat  of 
a  clearly  identified  candidate  for  federal  office.54  Campaign  money  donated  to 
a  recipient  other  than  a  candidate  for  office  to  fund  political  activities  besides 
express  advocacy  is  called  "soft  money."55  These  funds  cover  a  variety  of 
activities  ranging  from  administrative  expenses  to  voter  registration  drives  to 
"issue  advocacy"  that  stops  short  of  expressly  advocating  the  election  or  defeat 
of  a  particular  candidate.56  Following  Citizens  United,  the  Court  appears  poised 
to  roll  back  regulations  restricting  soft  money. 

Soft  money  does  not  involve  a  contribution  to  a  candidate  or  even  fund  what 
the  Court  considers  actual  campaign  speech  in  the  form  of  express  advocacy.  For 
this  reason,  soft  money  is  a  further  step  removed  from  the  threat  of  corruption 
than  contributions  to  fund  independent  expenditures,  at  least  under  Justice 
Kennedy's  conception  of  corruption.  Although  the  Court  in  McConnell 
permitted  government  regulation  of  the  receipt  and  use  of  soft  money  by  the 
national  parties,  Citizens  United  presaged  a  change  in  direction,  having  already 
overruled  part  of  McConnell.51 

The  D.C.  Circuit  has  already  begun  striking  down  certain  federal  regulations 
concerning  the  use  of  soft  money  by  non-connected  committees.  In  Emily 's  List 
v.  FEC,  the  D.C.  Circuit  held  that  the  government  could  not  restrict  the  use  of 
soft  money  by  non-connected  committees  to  the  extent  that  soft  money  was  used 
exclusively  for  purposes  other  than  express  advocacy.58  The  FEC  had  previously 
attempted  to  require  non-connected  committees  to  fund  their  administrative 
expenses,  voter  drives,  and  issue  advocacy  in  part  with  "hard  money"  collected 


53.  See  FEC  Advisory  Opinion  2010-09  (July  22, 2010)  (allowing  a  corporation  that  intends 
to  make  only  independent  expenditures  to  accept  unlimited  contributions  from  individuals  for  that 
purpose). 

54.  Buckley  v.  Valeo,  424  U.S.  1,  43  (1976). 

55.  McConnell  v.  Fed.  Election  Comm'n,  540  U.S.  93,  122-23  (2003),  overruled  in  part  by 
Citizens  United  v.  Fed.  Election  Comm'n,  130  S.  Ct.  876  (2010). 

56.  Id.  at  123-24. 

57.  See  Citizens  United,  130  S.  Ct.  at  913. 

58.  Emily's  List  v.  Fed.  Election  Comm'n,  581  F.3d  1,  25  (D.C.  Cir.  2009). 


20 1 0]  AFTER  CITIZENS  UNITED  253 


subject  to  federal  contribution  limits,  source  restrictions,  and  disclosure 
requirements.59 

The  Supreme  Court  temporarily  stayed  its  hand  at  a  greater  opportunity  to 
strike  down  federal  regulation  of  soft  money  as  received  by  political  parties  in 
Republican  National  Committee  v.  Federal  Election  Commission.™  In  that  case, 
the  Republican  National  Committee  challenged  prohibitions  on  the  national 
parties '  receipt  and  use  of  soft  money  that  was  previously  upheld  in  McConnell.61 
The  U.S.  District  Court  for  the  District  of  Columbia  upheld  these  prohibitions 
again,  citing  McConnell  as  precedent.62  The  Court's  earlier  decision  in 
McConnell,  though,  was  based  in  part  on  a  broader  view  of  corruption  that 
Justice  Kennedy's  opinion  in  Citizens  United  appears  to  reject  in  large  part. 
Now,  following  Citizens  United,  Justice  Kennedy's  dissenting  views  on  party 
soft  money  in  McConnell  may  eventually  carry  the  day  with  a  majority  of  the 
Court,  but  in  RNC  v.  FEC,  the  Court  declined  to  note  probable  jurisdiction  and 
summarily  affirmed  the  lower  court.  The  facial  challenge  to  the  soft  money 
prohibition  was  not  squarely  presented  in  the  case,  which  was  framed  as  an  as- 
applied  challenge  by  the  RNC.  It  is  not  difficult  to  imagine  this  Court  striking 
down  the  soft  money  prohibitions  if  squarely  presented  with  the  question,  along 
with  full  briefing  for  a  facial  challenge. 

3.  Disclosure. — The  Court  has  always  been  more  deferential  toward 
campaign  finance  disclosure  requirements  than  it  has  been  toward  outright  limits 
on  expenditures,  contributions,  and  soft  money.  Although  the  Court  struck  down 
the  prohibition  on  corporate  independent  expenditures  in  Citizens  United,  the 
Court  upheld  federal  disclaimer  and  disclosure  provisions  requiring  corporations 
to  disclose  their  sponsorship  of  campaign  speech.63  These  provisions,  the  Court 
explained,  may  burden  speech  to  a  degree,  but  they  "impose  no  ceiling  on 
campaign-related  activities"  or  block  speech.64 

The  Court's  recent  decision  in  Doe  v.  Reed  generally  signals  that  even  the 
Roberts  Court  remains  deferential  to  government  compelled  campaign  disclosure. 
The  Ninth  Circuit  had  upheld  the  state-required  disclosure  of  signed  petitions  to 
qualify  a  ballot  measure  that  would  have  repudiated  a  new  state  law  extending 
marriage  benefits  to  domestic  partners.65  In  Doe,  the  group  Protect  Marriage 
Washington  argued  that  public  disclosure  of  signed  petitions  would  subject  the 
signatories  to  harassment  by  the  ballot  measure's  opponents,66  along  the  same 
lines  as  harassment  faced  by  supporters  of  Proposition  8  in  California  a  couple 
years  ago.  Over  Justice  Thomas's  dissent,  the  Court  in  Citizens  United  dismissed 


59.  Mat 4-5. 

60.  698  F.  Supp.  2d  150  (D.D.C.),  affd,  130  S.  Ct.  3544  (2010). 

61.  Id.  at  153. 

62.  Id.  at  162-63. 

63.  Citizens  United  v.  Fed.  Election  Comm'n,  130  S.  Ct.  876,  913-14  (2010). 

64.  Id.  at  914  (quoting  Buckley  v.  Valeo,  424  U.S.  1,  64  (1976)). 

65.  Doe  v.  Reed,  586  F.3d  671,  674,  681  (9th  Cir.  2009),  affd,  130  S.  Ct.  281 1  (2010). 

66.  Id.  at  676. 


254  INDIANA  LAW  REVIEW  [Vol.  44:243 


a  similar  risk  of  harassment  as  it  applied  across  the  board  to  corporations.67 
Likewise,  in  Doe  v.  Reed,  the  Court  rejected  a  facial  challenge  to  Washington's 
disclosure  requirements,  finding  that  the  speculative  risk  of  harassment  was 
minor  in  the  case.68    However,  the  Court  again  left  open  the  possibility  of 
as-applied  exceptions  to  prohibit  disclosure  if  it  judges  the  risk  of  harassment  to 
be  significant. 

Conclusion 

Citizens  United  marks  an  important  turning  point  in  campaign  finance  law. 
Under  the  Rehnquist  Court,  the  government  won  nearly  every  major  campaign 
finance  case  for  more  than  a  decade  through  McConnell  v.  FEC  in  2003. 
However,  since  Chief  Justice  Rehnquist' s  retirement,  a  5-4  majority  of  the 
current  Roberts  Court  has  decided  a  series  of  significant  campaign  finance  cases 
against  the  government.  Citizens  United  signals  the  direction  of  the  Roberts 
Court  toward  a  larger  rollback  of  campaign  finance  regulation. 


67.  Citizens  United,  130  S.  Ct.  at  980-82  (Thomas,  J.,  concurring  in  part  and  dissenting  in 
part)  (describing  the  harassment  of  supporters  of  Proposition  8). 

68.  Reed,  586  F.3d  at  680-81. 


Disclosures  About  Disclosure 


Lloyd  Hitoshi  Mayer* 


Introduction 

In  the  wake  of  the  Supreme  Court's  foundation-shifting  decision  in  Citizens 
United  v.  FEC,1  the  media  and  other  commentators  could  be  forgiven  for  mostly 
overlooking  a  second,  less  controversial  holding  in  that  case.  By  a  vote  of  8-1, 
the  Court  upheld  the  disclosure  and  related  disclaimer  provisions  that  apply  to 
independent  election-related  spending  even  as  the  Court  removed  the 
longstanding  bar  on  corporations  (and  most  likely  unions)  engaging  in  such 
spending.2  In  the  relevant  portion  of  the  majority  opinion,  Justice  Kennedy, 
writing  for  the  Court,  explained  that  the  government's  interest  in  providing 
information  to  voters  was  sufficient  to  justify  the  required  public  disclosure  of 
not  only  Citizens  United' s  funding  of  the  communications  at  issue,  but  also 
disclosure  of  who  provided  significant  financial  support  to  that  organization.3 
Only  Justice  Thomas  disagreed,  arguing  that  the  risk  of  retaliation  against  those 
whose  support  is  revealed  by  such  disclosure  is  sufficiently  real  to  render  legally 
required  disclosure  of  their  identities  unconstitutional.4 

These  two  contrasting  narratives  are  important  because  they  form  the  factual 
basis  not  only  for  arguments  relating  to  the  constitutionality  of  the  existing 
campaign  finance  disclosure  rules,  but  also  for  legislative  debates  relating  to  the 
advisability  of  adopting  and  expanding  such  rules  in  the  future.5  Especially  given 
the  Court's  decision,  supporters  of  campaign  finance  regulation  are  turning  more 
and  more  to  disclosure  rules  to  police  campaign  fundraising  and  spending.  For 
example,  Congress  is  considering  significantly  expanded  disclosure  and 
disclaimer  requirements  for  political  communications  paid  for  by  corporations, 
unions,  and  other  organizations  in  the  wake  of  Citizens  United.6   Many  state 


*  Associate  Professor,  Notre  Dame  Law  School;  Of  Counsel,  Caplin  &  Drysdale, 
Chartered.  A.B.,  Stanford  University,  1989;  J.D.,  Yale  Law  School,  1994.  I  am  very  grateful  for 
comments  from  Michael  J.  Pitts  and  the  other  participants  in  the  Indiana  Law  Review's  "The  Law 
of  Democracy"  symposium  and  for  the  research  assistance  of  Katherine  Ann  Sebastiano.  I  also 
thank  the  staff  of  the  law  review  and  particularly  Ann  Harris  Smith  for  the  incredibly  well- 
organized  symposium. 

1.  130S.  Ct.  876(2010). 

2.  See  id.  at  914,  93 1  (Stevens,  J.,  concurring  in  part  and  dissenting  in  part). 

3.  Mat 914-16. 

4.  Id.  at  980-82  (Thomas,  J.,  concurring  in  part  and  dissenting  in  part). 

5.  For  a  discussion  of  the  constitutional  issues  raised  by  campaign  finance  disclosure  laws, 
see  Bradley  A.  Smith,  Unfree  Speech:  The  Folly  of  Campaign  Finance  Reform  221-23 
(2001);  Richard  L.  Hasen,  The  Surprisingly  Complex  Case  for  Disclosure  of  Contributions  and 
Expenditures  Funding  Sham  Issue  Advocacy,  48  UCLA  L.  Rev.  265  (2000). 

6.  See,  e.g.,  Democracy  Is  Strengthened  by  Casting  Light  on  Spending  in  Elections 
(DISCLOSE)  Act,  H.R.5175, 111th  Cong.  §§201-21,301  (2010)  [hereinafter  House  DISCLOSE 
Act];  Democracy  Is  Strengthened  by  Casting  Light  on  Spending  in  Elections  (DISCLOSE)  Act,  S. 


256  INDIANA  LAW  REVIEW  [Vol.  44:255 


legislatures  are  also  considering  similar  expansions  of  disclosure  and  disclaimer 
rules,7  and  several  have  already  enacted  such  laws.8  The  constitutional  debates 
also  continue,  most  recently  in  the  ongoing  case  of  Doe  v.  Reed,  which  involves 
the  disclosure  of  the  names  and  addresses  of  individuals  who  signed  a 
referendum  petition  in  Washington  State.9 

Yet  neither  the  majority  nor  Justice  Thomas  provided  a  firm  factual 
foundation  for  their  respective  narratives.  The  former  simply  asserted  that 
knowing  who  supports  or  opposes  a  particular  candidate  "enables  the  electorate 
to  make  informed  decisions  and  give  proper  weight  to  different  speakers  and 
messages"  and  provides  both  "shareholders  and  citizens  with  the  information 
needed  to  hold  corporations  and  elected  officials  accountable  for  their  positions 
and  supporters."10  The  latter  relied  heavily  on  anecdotal  evidence  of 
retaliation — specifically,  the  retaliation  against  supporters  of  California's 
controversial  Proposition  8  relating  to  same-sex  marriage  and  various  attempts 
to  use  information  disclosed  under  campaign  finance  rules  to  publicly  identify 
supporters  of  candidates  and  causes. 1 1  Justice  Thomas  markedly  failed,  however, 
to  cite  more  broad-based  evidence  regarding  either  the  actual  risk  of  retaliation 
(particularly  outside  of  the  Proposition  8  context)  or  the  chilling  effect,  if  any, 


3295,  111th  Cong.  §§  101-04,  201-31  (2010)  [hereinafter  Senate  DISCLOSE  Act];  R.  Sam 
Garrett,  Cong.  Research  Serv.,  R4 1 054,  Campaign  Finance  Policy  After  Citizens  United 
v.  Federal  Election  Commission:  Issues  and  Options  for  Congress  6-7  (Feb.  1,  2010), 
available  at  http://assets.  opencrs.com/rpts/R4 1 05420 1 0020 1  .pdf;  see  also  Sunlight  Found.,  A 
Comprehensive  Disclosure  Regime  in  the  Wake  of  the  Supreme  Court's  Decision  in 
Citizens  United  v.  Federal  Election  Commission  (2010),  http://assets.sunlightfoundation. 
com/pdf/policy/  sunlightfoundation_policy_citizens_united.pdf  (arguing  for  a  robust  transparency 
regime  in  the  wake  of  the  Citizens  United  decision);  L.  Paige  Whit  akeretal.,  Cong.  Research 
Serv.,  R41096,  Legislative  Options  After  Citizens  United  v.  FEC:  Constitutional  and 
Legal  Issues  3-8  (Mar.  8,  2010),  available  at  http://www.fas.org/sgp/crs/misc/R41096.pdf. 

7.  See  Fredreka  Schouten,  10  States  Add  Campaign  Finance  Laws,  ABC  NEWS  (July  24, 
20 1 0),  http://abcnews.go.com/Politics/campaign-finance-laws-emerge-states-disclose-act- 
stalled/story?id=l  1234998. 

8.  See,  e.g.,  H.R.  2788,  49th  Leg.,  2d  Reg.  Sess.  (Ariz.  2010)  (expanding  disclosure 
requirements  for  independent  expenditures);  S.  10-203,  67th  Gen.  Assemb.,  2d  Reg.  Sess.  (Colo. 
2010)  (same);  S.  2354,  83d  Gen.  Assemb.,  1st  Sess.  (Iowa  2010)  (same);  H.R.  4647,  79th  Leg.,  2d 
Reg.  Sess.  (W.  Va.  2010)  (same). 

9.  See  Doe  v.  Reed,  1 30  S.  Ct.  28 1 1  (2010)  (concluding  that  a  state  law  requiring  disclosure 
of  referendum  petitions  was  constitutional  on  its  face;  remanding  for  a  determination  whether  that 
law  is  unconstitutional  as  applied  to  a  particular  petition);  see  also  Canyon  Ferry  Rd.  Baptist 
Church  v.  Unsworth,  556  F.3d  1021,  1031-35  (9th  Cir.  2009)  (concluding  that  Montana's  "zero 
dollar"  threshold  for  disclosure  of  de  minimis  in-kind  contributions  was  unconstitutional  even  given 
the  state's  important  interest  in  providing  citizens  with  information  about  the  constituencies 
supporting  and  opposing  ballot  issues). 

10.  Citizens  United  v.  FEC,  130  S.  Ct.  876,  916  (2010). 

11.  Id.  at  980-8 1  (Thomas,  J.,  concurring  in  part  and  dissenting  in  part). 


2010]  DISCLOSURES  ABOUT  DISCLOSURE  257 


caused  by  the  fear  of  retaliation.12  The  precedents  cited  by  the  majority  and 
Justice  Thomas  also  do  not  provide  a  more  solid  factual  footing  for  their 
respective  stories.13 

The  purpose  of  this  Article  is  to  consider  what  we  in  fact  know  about  the 
truth  of  these  two  narratives.  Part  I  addresses  whether  the  existing  disclosure  and 
disclaimer  rules  result  in  more  informed  voters  and  if  they  do  not,  whether  any 
disclosure  and  disclaimer  regime  would  be  more  likely  to  accomplish  this  goal. 
This  Article  looks  for  the  answer  to  this  question  in  the  political  psychology 
literature  regarding  voter  decisionmaking,  and  particularly  the  use  by  voters  of 
"heuristic  cues" — mental  shortcuts — to  reach,  arguably,  the  same  decision  the 
voters  would  reach  if  they  had  unlimited  time  and  interest  to  gather  information 
about  their  election  choices. 

Part  II  addresses  the  extent  to  which  the  existing  disclosure  and  disclaimer 
rules  result  in  either  actual  retaliation  or  sufficient  fear  of  retaliation — whether 
justified  or  not — that  financial  support  of  candidates  is  chilled.  The  answer  to 
this  question  is  less  clear,  unfortunately,  because  while  anecdotal  evidence  of 
actual  and  possible  retaliation  exists,  little  if  any  empirical  research  has  been 
done  on  the  actual  extent  of  retaliation  and  the  effect  of  the  fear  of  retaliation  on 
potential  contributors'  behavior.  Nevertheless,  the  existing  evidence  of 
retaliation,  combined  with  the  more  extensive  research  regarding  informing 
voters,  does  suggest  several  changes  to  existing  and  proposed  disclosure  and 
disclaimer  regimes.  Such  changes  could  both  further  the  voters'  interest  and 
reduce  actual  and  perceived  risk  of  retaliation. 

Part  III  describes  these  recommended  changes,  which  include  both  a 
reduction  in  the  disclosure  of  information  about  "rank-and-file"  contributors, 
whose  specific  identities  have  little  or  no  informational  value  for  voters,  and  an 
increase  in  the  disclosure  of  information  about  substantial  contributors, 
particularly  through  an  expanded  use  of  disclaimers  on  communications  paid  for 
by  such  contributors  or  the  groups  they  support. 

I.  Reward:  Informing  Voters 

The  oft-cited  trilogy  of  government  interests  in  disclosure  of  who  financially 
supports  (or  opposes)  candidates  is  informing  voters,  deterring  corruption  and  the 


12.  See  id.  at  980-82. 

13.  Id.  at  914  (quoting  Buckley  v.  Valeo,  424  U.S.  1,  66  (1976)  (asserting  without  citation 
that  disclosure  "provid[es]  the  electorate  with  information  about  the  sources  of  election-related 
spending"));  id.  (citing  McConnell  v.  FEC,  540  U.S.  93,  196-97  (2003)  (noting  the  use  of 
misleading  names  by  some  organizations  but  otherwise  simply  accepting  the  assertion  in  Buckley 
that  disclosure  serves  to  more  fully  inform  voters),  overruled  by  Citizens  United,  130  S.  Ct.  876 
(2010));  id.  at  915  (citing  Buckley,  424  U.S.  at  76  (stating  that  disclosure  serves  "to  insure  that  the 
voters  are  fully  informed"));  id.  (citing  McConnell,  540  U.S.  at  196)  (arguing  same);  id.  at  980-82 
(Thomas,  J.,  concurring  in  part  and  dissenting  in  part)  (citing  no  precedents  that  provide  additional 
factual  support  for  the  retaliation  narrative). 


258  INDIANA  LAW  REVIEW  [Vol.  44:255 


appearance  of  corruption,  and  aiding  enforcement  of  campaign  spending  limits.14 
While  there  are  other  possible  rationales  for  disclosure,  including  determining 
whether  candidates  and  political  parties  receive  adequate  funding,  determining 
the  extent  of  individual  (financial)  participation  in  politics,  and  generally 
facilitating  the  study  and  knowledge  of  political  behavior,  it  is  only  these  three 
that  have  been  cited  as  having  constitutional  significance.15 

The  focus  here  will  be  on  the  first  interest — informing  voters — for  several 
reasons.  First,  the  third  interest — aiding  enforcement  of  campaign  spending 
limits — only  applies  when  such  limits  exist  (and  possibly  not  even  then  as  to 
disclosure  to  the  public  as  opposed  to  a  regulatory  body),  yet  both  the  existing 
and  proposed  federal  (and  many  state)  disclosure  regimes  go  well  beyond 
disclosure  of  financial  supporters  who  are  subject  to  such  limits,  particularly  in 
the  wake  of  Citizens  United}6  Second,  there  is  significant  skepticism  regarding 
the  extent  to  which  disclosure  alone  in  fact  deters  hard-to-pro ve  corruption  or  the 
appearance  of  corruption,  Justice  Brandeis's  oft-quoted  "[sjunlight  is  said  to  be 
the  best  of  disinfectants;  electric  light  the  most  efficient  policeman"17 
notwithstanding. 18  Third,  the  Court  in  Citizens  United  chose  to  rely  solely  on  the 


14.  See,  e.g.,  McConnell,  540  U.S.  at  196;  Buckley,  424  U.S.  at  66-68,  80-81;  Robert  F. 
Bauer,  Not  Just  a  Private  Matter:  The  Purposes  of  Disclosure  in  an  Expanded  Regulatory  System, 
6  Election  L.J.  38,  38  (2007);  Elizabeth  Garrett,  McConnell  v.  FEC  and  Disclosure,  3  Election 
L.J.  237,  239  (2004);  Hasen,  supra  note  5,  at  270. 

15.  See  K.D.  Ewing  &  N.S.  Ghaleigh,  The  Cost  of  Giving  and  Receiving:  Donations  to 
Political  Parties  in  the  United  Kingdom,  6  ELECTION  L.J.  56,  59  (2007)  (listing  rationales);  David 
Schultz,  Disclosure  is  Not  Enough:  Empirical  Lessons  from  State  Experiences,  4  ELECTION  L.J. 
349, 355-56  (2005)  (same);  Clyde  Wilcox,  Designing  Campaign  Finance  Disclosure  in  the  States: 
Tracing  the  Tributaries  of  Campaign  Finance,  4  ELECTION  L.J.  371,  371,  374-75  (2005)  (noting 
how  disclosure  has  facilitated  the  study  of  political  behavior). 

1 6.  See  FEC  Adv.  Op.  20 1 0- 1 1 ,  at  2-3  (July  22,  20 1 0),  available  at  http://saos.nictusa.com/ 
aodocs/AO%202010-ll.pdf  (opining  that  a  federally  registered,  independent-expenditure-only 
political  committee  can  solicit  and  accept  unlimited  contributions  from  a  variety  of  sources);  FEC 
Adv.  Op.  2010-09,  at  3-5  (July  22,  2010),  available  at  http://saos.nictusa.com/saos/ 
searchao?SUBMIT=continue&PAGE  NO=- 1  (opining  that  a  federally  registered,  independent- 
expenditure-only  political  committee  may  solicit  and  accept  unlimited  contributions  from 
individuals  in  the  general  public). 

17.  Louis  D.  Brandeis,  Other  People's  Money  and  How  the  Bankers  Use  It  92 
(Martino  Publ'g  2009)  (1913). 

18.  See,  e.g.,  McConnell  v.  FEC,  540  U.S.  93,  321  (2003)  (Kennedy,  J.,  concurring  in  part 
and  dissenting  in  part)  (rejecting  the  combating  corruption  rationale  with  respect  to  the  disclosure 
rules  at  issue);  Bruce  Ackerman  &  Ian  Ayres,  Voting  with  Dollars:  A  New  Paradigm  for 
Campaign  Finance  27  (2002)  ("[M]andated  disclosure  may  make  us  feel  good  about  ourselves  but 
it  does  little  to  insulate  the  political  sphere  from  the  corrupting  influence  of  unequal  wealth."); 
Brooks  Jackson,  Honest  Graft:  Big  Money  and  the  American  Political  Process  296-302 
(rev.  ed.  1990)  (arguing  that  disclosure  of  interest  group  campaign  contributions  had  the  effect  of 
legitimizing  and  increasing  those  contributions);  Bauer,  supra  note  14,  at  40  (arguing  that  "the 
rational  of 'deterrence' . . .  holds  but  cannot  prove  that  disclosure  will  discourage  illegal  or  corrupt 


2010]  DISCLOSURES  ABOUT  DISCLOSURE  259 


informing-voters  interest  in  upholding  the  existing  federal  disclosure  rules  at 
issue  in  that  case.19 

There  fortunately  has  been  significant  political-psychology  research 
regarding  how  voters  obtain  information  relevant  to  their  election  decisions,  as 
well  as  broader  research  regarding  public  use  of  information  when  making 
decisions.20  The  story  that  emerges  from  this  research  is  much  more  complicated 
and  nuanced  than  the  Court's  statements  in  Citizens  United  would  indicate.  It  is 
not  simply  enough  to  disclose  contributor  information.  While  existing  research 
indicates  that  such  information  may  help  inform  voters,  whether  it  has  a 
reasonable  chance  of  doing  so  depends  both  on  what  specific  information  is 
disclosed  and  how  that  information  is  disseminated.21  As  political  scientist 
Arthur  Lupia  puts  it  with  respect  to  informing  citizens  generally: 

Scholars,  legislators,  and  foundations  both  public  and  private 
advocate  various  means  to  enhance  competence,  including  civic 
education  campaigns  and  the  development  of  informative  [websites] . . . 

However,  something  is  wrong  with  many  of  these  attempts.   The 


financial  relationships  between  special  interests  and  political  actors");  Richard  Briffault,  Reforming 
Campaign  Finance  Reform:  A  Review  q/Voting  with  Dollars,  9 1  Cal.  L.  Rev.  643, 652-53  (2003) 
(expressing  skepticism  that  campaign  finance  disclosure  rules  discourage  large  donations  that  have 
the  greatest  potential  for  corruption  and  the  appearance  of  corruption);  Ewing  &  Ghaleigh,  supra 
note  15,  at  69;  Elizabeth  Garrett,  The  William  J.  Brennan  Lecture  in  Constitutional  Law:  The 
Future  of  Campaign  Finance  Reform  Laws  in  the  Courts  and  in  Congress,  27  Okla.  City  U.  L. 
Rev.  665,  669-75  (2002);  William  McGeveran,  Mrs.  Mclntyre's  Checkbook:  Privacy  Costs  of 
Political  Contribution  Disclosure,  6  U.  Pa.  J.  CONST.  L.  1,  30-32  (2003);  Wilcox,  supra  note  15, 
at  373  ("Even  with  disclosure,  it  is  exceeding  difficult  to  prove  that  corruption  has  occurred,  and 
many  observers  doubt  that  corruption  is  common.").  But  see,  e.g. ,  Hasen,  supra  note  5,  at  28 1 ,  283 
n.78  (appearing  to  accept  the  Buckley  Court's  position  that  at  least  some  communications  done 
independently  of  candidates  raise  corruption  or  appearance  of  corruption  concerns  sufficient  to 
justify  disclosure  of  who  financially  supports  those  communications);  Cass  R.  Sunstein,  Political 
Equality  and  Unintended  Consequences,  94  COLUM.  L.  REV.  1 390, 1 395  ( 1 994)  ("Candidates  often 
know  who  spends  money  on  their  behalf,  and  for  this  reason,  an  expenditure  may  in  some  contexts 
give  rise  to  the  same  reality  and  appearance  of  corruption."  (internal  citation  omitted)). 

19.  Citizens  United  v.  FEC,  130  S.  Ct.  876,  915-16  (2010). 

20.  See  generally  Cheryl  Boudreau,  Making  Citizens  Smart:  When  Do  Institutions  Improve 
Unsophisticated  Citizens'  Decisions?,  31  POL.  BEHAV.  287,  287-90  (2009)  (compiling  and 
explaining  this  research);  Michael  S.  Kang,  Democratizing  Direct  Democracy:  Restoring  Voter 
Competence  Through  Heuristic  Cues  and  "Disclosure  Plus, "  50  UCLA  L.  REV.  1141,  1 149-5 1 
(2003)  (same). 

21.  See  generally  Archon  Fung  et  al.,  Full  Disclosure:  The  Perils  and  Promise  of 
Transparency  1 1  (2007)  (concluding  that  for  a  targeted  transparency  policy  to  be  successful,  it 
must  be  both  user-centered  and  sustainable);  id.  at  55  (arguing  that  the  extent  to  which  available 
information  is  used  by  decisionmakers  depends  on  how  much  they  value  the  information,  the  degree 
to  which  the  information  is  compatible  with  their  decision-making  routines,  and  how 
comprehensible  it  is  to  them). 


260  INDIANA  LAW  REVIEW  [Vol.  44:255 


problem  is  that  they  are  based  on  flawed  assumptions  about  how  citizens 
seek  and  process  information.  One  manifestation  of  the  problem  is  that 
many  advocates  of  competence-generating  proposals  proceed  as  if 
merely  providing  new  information  is  sufficient  to  improve  competence. 
However,  the  transmission  of  socially  relevant  information  is  no  "Field 
of  Dreams."  It  is  not  true  that  "if  you  build  it,  they  will  come."  Nor  is 
it  true  that  if  they  come,  the  effect  will  be  as  advocates  anticipate.22 

Furthermore,  there  is  still  significant  uncertainty  regarding  what  information  and 
which  means  of  dissemination  are  most  useful  to  voters.23 

Applying  this  research  to  the  voter  information  narrative  requires  starting 
with  two  important  but  generally  uncontroversial  assumptions  (at  least  in  the 
United  States).  First,  it  is  desirable  for  voters  to  be  well-informed  about  their 
electoral  choices — whether  candidates  or  ballot  initiatives — such  that  voters  can 
accurately  determine  and  apply  their  personal  preferences  when  making  such 
choices.24  Well-informed  in  this  context  means  voters  not  only  having  all 
relevant  information,  but  also  understanding  that  information.25  Second,  many, 


22.  Arthur  Lupia,  Deliberation  Disconnected:  What  It  Takes  to  Improve  Civic  Competence, 
65  Law  &  Contemp.  Probs.  133,  1 34  (2002)  (internal  citation  omitted);  see  also  Briffault,  supra 
note  1 8,  at  653-55  (expressing  skepticism  that  campaign  finance  disclosure  rules  have  a  significant 
effect  on  voter  information  or  voter  behavior). 

23.  See  generally  James  H.  Kuklinski  &  Paul  J.  Quirk,  Conceptual  Foundations  of  Citizen 
Competence,  23  Pol.  Behav.  285  (2001)  (identifying  a  host  of  problems  with  the  research  into, 
among  other  topics,  how  voters  use  the  information  they  receive). 

24.  See,  e.g.,  Michael  X.DelliCarpini&ScottKeeter,  What  Americans  Know  about 
Politics  and  Why  It  Matters  5-7,  59-61,  272  (1996)  (concluding  that  "informed  citizens  are 
demonstrably  better  citizens"  because,  among  other  reasons,  they  are  "better  able  to  link  their 
interests  with  their  attitudes"  and  "more  likely  to  choose  candidates  who  are  consistent  with  their 
own  attitudes");  Richard  R.  Lau  &  David  P.  Redlawsk,  Voting  Correctly,  91  Am.  Pol.  Sci.  Rev. 
585,  586  (1997)  (defining  a  "'correct'  vote  decision  as  one  that  is  the  same  as  the  choice  which 
would  have  been  made  under  conditions  of  full  information");  Daniel  R.  Ortiz,  The  Engaged  and 
the  Inert:  Theorizing  Political  Personality  Under  the  First  Amendment,  81  Va.  L.  Rev.  1,  45 
(1995)  (concluding  that  the  right  question  to  ask  with  respect  to  campaign  finance  regulation  is 
"whether  it  would  increase  the  amount  and  quality  of  deliberate,  cognitive  decisionmaking  rather 
than  just  the  amount  of  speech");  Ilya  Somin,  Voter  Ignorance  and  the  Democratic  Ideal,  12 
Critical  Rev.  413, 415  (1998)  ("Ideally,  then,  voters  should  be  able  to  choose  between  opposing 
candidates  and  their  platforms  on  the  basis  of  'the  preferences  that  people  would  have  if  their 
information  were  perfect.'"  (internal  citation  omitted)).  But  see  Craig  M.  Burnett  et  al.,  The 
Dilemma  of  Direct  Democracy  4  (Univ.  of  So.  Cal.  Legal  Studies,  Working  Paper  No.  57), 
available  at  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1561926  (concluding  in  an 
empirical  study  of  voting  relating  to  a  ballot  initiative  that  most  voters,  regardless  of  their  level  of 
information,  voted  in  a  manner  consistent  with  their  policy  preferences,  although  not  extending  this 
result  to  voting  in  candidate  elections). 

25.  See  Kuklinski  &  Quirk,  supra  note  23,  at  301-03  (questioning  what  it  means  for  an 
ordinary  citizen  to  be  well-informed  when  making  political  decisions  and  whether  any  significant 


20 1 0]  DISCLOSURES  ABOUT  DISCLOSURE  26 1 


and  probably  most,  voters  are  not  well-informed,  both  because  relevant 
information  is  often  not  available  or  comprehensible  and  because  gathering  and 
processing  such  information  has  costs  that  voters  often  choose  not  to  incur  given 
other  demands.26  This  ignorance  extends  to  basic  information  about  candidates 
for  elected  office,27  although  there  is  an  ongoing  debate  whether  recall  of  such 
information  accurately  reflects  the  information  that  voters  use  to  make 
decisions.28  Given  these  assumptions,  the  question  that  existing  and  proposed 
campaign  finance  disclosure  rules  raise  is  whether  they  in  fact  help  voters 
become  more  informed.  This  discussion  will  focus  on  disclosures  of  contributors 
who  finance  efforts  to  support  or  oppose  candidates,  both  because  Citizens 
United  focused  on  spending  relating  to  candidate  elections  and  because  others 
have  already  comprehensively  considered  this  issue  in  the  context  of  ballot 
initiatives.29 

The  existing  disclosure  and  disclaimer  regimes  generally  collect  and  make 
public  information  in  two  ways.  First,  they  require  candidates,  political  parties, 
political  committees,  and  other  organizations  engaged  in  certain  election-related 
activities  to  file  public  reports  identifying  financial  contributors  who  have  given 
above  certain  thresholds.30  For  example,  federal  election  law  requires  such 
entities  to  identify  all  contributors  who  provide  more  than  $200  within  a 
designated  period  (either  a  calendar  year  or  a  federal  election  cycle),  except  that 
the  threshold  is  $  1 000  for  non-candidate,  non-party  organizations,  which  have  to 
disclose  their  contributors  only  because  the  organization  makes  "electioneering 


proportion  of  citizens  can  truly  be  said  to  be  well-informed,  as  opposed  to  merely  relatively 
informed,  compared  to  their  fellows). 

26.  See,  e.g.,  DELLlCARPlNl&KEETER,5wpranote24,  at  269-72  (highlighting  the  first  reason 
while  acknowledging  other  influences);  Anthony  Downs,  An  Economic  Theory  of  Democracy 
236-37  (1957)  (focusing  on  the  second  reason);  Edward  G.  Carmines  &  James  H.  Kuklinski, 
Incentives,  Opportunities,  and  the  Logic  of  Public  Opinion  in  American  Political  Representation, 
in  Information  and  Democratic  Processes  240,  244-45  (John  A.  Ferejohn  &  James  H. 
Kuklinski  eds.,  1990)  (noting  both  reasons);  Philip  E.  Converse,  The  Nature  of  Belief  Systems  in 
Mass  Publics,  in  Ideology  AND  DISCONTENT  206,  219-23  (David  E.  Apter  ed.,  1964)  (detailing 
a  general  lack  of  public  knowledge  with  respect  to  the  liberal-conservative  political  distinction  or 
how  that  distinction  applied  to  the  two  major  political  parties);  Ilya  Somin,  Political  Ignorance  and 
the  Countermajoritarian  Difficulty:  A  New  Perspective  on  the  Central  Obsession  of  Constitutional 
Theory,  89  IowaL.  Rev.  1 287, 1 304- 1 5  (2004)  (summarizing  research  demonstrating  a  general  lack 
of  political  knowledge  and  providing  further  data  supporting  this  finding). 

27.  See,  e.g.,  Somin,  supra  note  26,  at  1308  (summarizing  the  lack  of  knowledge  about 
candidates,  among  other  information,  in  2000). 

28.  See  James  N.  Druckman,  Does  Political  Information  Matter?,  22  Pol.  COMM.  515,516 
(2005)  (describing  this  debate). 

29.  See,  e.g.,  Elizabeth  Garrett  &  Daniel  A.  Smith,  Veiled  Political  Actors  and  Campaign 
Disclosure  Laws  in  Direct  Democracy,  4  ELECTION  L.J.  295  (2005). 

30.  See  generally  2  U.S.C.  §  434  (2006  &  Supp.  2009)  (specifying  federal  disclosure 
requirements);  Campaign  Disclosure  Law  Database,  CAMPAIGN  DISCLOSURE  PROJECT  (Dec.  31, 
2006),  http://disclosure.law.ucla.edu  (cataloguing  state  campaign  disclosure  requirements). 


262  INDIANA  LAW  REVIEW  [Vol.  44:255 


communications."31  For  individuals,  the  information  that  must  be  provided  is  the 
person's  name,  mailing  address,  occupation,  and  employer.32  All  of  this 
information  is  then  made  available  in  an  Internet-accessible,  searchable 
database.33  A  search  of  the  Campaign  Disclosure  Law  Database  maintained  by 
the  Campaign  Disclosure  Project  reveals  that  every  state  has  similar  disclosure 
laws,  although  reporting  thresholds  vary  and  are  usually  significantly  lower  than 
$200.34 

Second,  these  regimes  require  the  same  organizations,  when  they  pay  for 
certain  types  of  communications,  to  include  disclaimers  in  those  communications 
identifying  the  organization.35  For  example,  federal  election  law  requires 
covered  communications  not  authorized  by  a  candidate  to  state  the  name  and 
permanent  street  address,  telephone  number,  or  web  address  of  the  organization 
(or  individual)  who  paid  for  the  communication,  as  well  as  a  statement  that  the 
communication  is  not  authorized  by  any  candidate  or  candidate's  committee.36 
Federal  election  law  also  requires  that  radio  or  television  communications  by  any 
person  or  organization  other  than  the  candidate  or  authorized  by  the  candidate 

include  an  audio  statement  that " is  responsible  for  the  content  of  this 

advertising."37  A  search  of  the  Campaign  Disclosure  Law  Database  maintained 
by  the  Campaign  Disclosure  Project  revealed  that  most,  although  not  all,  states 
have  similar  disclaimer  laws.38 

The  disclosure  of  financial  contributors  will  rarely,  if  ever,  directly  inform 
voters  about  the  qualifications  or  policy  positions  of  candidates.  Rather,  such 
disclosures  may  indirectly  provide  such  information  to  voters  depending  on  what 
the  voters  know  (or  believe  they  know)  about  the  contributors — their  judgment, 
values,  and  policy  positions.39  Such  indirect  knowledge  is  commonly  referred  to 


31.2  U.S.C.  §§  434(b)(3)(A),  (c)(2)(C),  (f)(2)(E).  An  "electioneering  communication"  is 
defined  as  a  certain  communication  that  refers  to  a  clearly  identified  candidate,  reaches  a  certain 
number  of  electorate  for  that  candidate,  and  is  aired  within  a  certain  time  window  before  the 
relevant  election.  Id.  §  434(f)(3)(A)(i). 

32.  Id.  §431(13)(A). 

33.  See  Fed.  Election  Comm'n,  Campaign  Finance  Disclosure  Data  Search, 
http://www.fec.gov/finance/disclosure/disclosure_data_search.shtml  (last  visited  Oct.  15,  2010). 

34.  See  Campaign  Disclosure  Law  Database,  supra  note  30  (under  "Compare,"  scroll  down 
to  "F.  Contributor  Information"  and  select  "7.  Is  there  a  threshold  amount  for  reporting  individual 
contributions?,''  click  "select  all"  to  search  all  jurisdictions,  and  click  "Next"). 

35.  See  generally  2  U.S.C.  §  441d;  The  Campaign  Disclosure  Law  Database,  supra  note  30. 

36.  2  U.S.C.  §441  d(a). 

37.  Id.  §441d(d)(2). 

38.  See  Campaign  Disclosure  Law  Database,  supra  note  30  (under  "Compare,"  scroll  down 
to  "T.  Advertisement  disclosure"  and  select  "2.  Are  committees  required  to  disclose  their  identity 
on  broadcast  (TV  or  radio)  advertisements?,"  click  "select  all"  to  search  all  jurisdictions,  and  click 
"Next"). 

39.  See  Arthur  Lupia,  Who  Can  Persuade  Whom?:  Implications  from  the  Nexus  of 
Psychology  and  Rational  Choice  Theory,  in  Thinking  About  POLITICAL  PSYCHOLOGY  51,  56 
(James  H.  Kuklinski  ed.,  2002)  (concluding  that  "cue-giver  attributes  .  .  .  affect  a  cue's 


20 1 0]  DISCLOSURES  ABOUT  DISCLOSURE  263 


as  heuristic  cues.40  These  mental  shortcuts  permit,  in  this  situation,  the  voter  who 
learns  the  identity  of  a  financial  contributor  to  jump  to  a  conclusion  regarding  the 
supported  (or  opposed)  candidate's  qualifications  for  office  or  policy  positions 
based  on  that  contributor's  information.  Commonly  identified  heuristic  cues 
include  party  affiliation,  endorsements  by  interest  groups,  newspapers, 
celebrities,  politicians,  and  other  opinion  leaders,  and  a  candidate's  personal 
characteristics  and  character.41 

This  brief  description  of  heuristic  cues  suggests  their  limitations  both 
generally  and  specifically  with  respect  to  contributor  information.  Perhaps  most 
importantly,  not  all  scholars  who  have  studied  this  issue  are  convinced  that  all 
or  most  identified  heuristic  cues  in  fact  tend  to  lead  voters  to  act  as  they  would 
if  they  were  better  informed.42    These  skeptics  argue  that  cues  may  lead  to 


persuasiveness  only  if  they  are  necessary  to  inform  a  cue-seeker's  perceptions  of  a  cue-giver's 
actual  knowledge  or  interests"). 

40.  See  Arthur  Lupia  &  Mathew  D.  McCubbins,  The  Democratic  Dilemma:  Can 
Citizens  Learn  What  TheyNeed to  Know?  37  ( 1 998)  (listing  and  agreeing  with  studies  showing 
that  voters  use  simple  shortcuts  when  making  complex  decisions);  SAMUEL  L.  Popkin,  THE 
Reasoning  Voter:  Communication  and  Persuasion  in  Presidential  Campaigns  44  ( 1 99 1 ) 
(describing  the  use  of  "information  shortcuts"  by  voters);  Paul  M.  Sniderman  et  al.,  Reasoning 
and  Choice:  Explorations  in  Political  Psychology  19  (1991)  (describing  heuristics 
generally);  Boudreau,  supra  note  20,  at  289  (summarizing  research  about  such  cues);  see  generally 
Daniel  Kahneman,  Maps  of  Bounded  Rationality:  Psychology  for  Behavioral  Economics,  93  Am. 
Econ.  Rev.  1449  (2003)  (discussing  the  state  of  research  into  intuitive,  as  opposed  to  reasoning, 
decisionmaking). 

41.  See,  e.g.,  Lupia  &  McCubbins,  supra  note  40,  at  7-8  (listing  possible  heuristic  cues 
identified  by  scholars);  Kuklinski  &  Quirk,  supra  note  23,  at  295  (same);  Richard  R.  Lau  &  David 
P.  Redlawsk,  Advantages  and  Disadvantages  of  Cognitive  Heuristics  in  Political  Decision  Making, 
45  Am.  J.  Pol.  Sci.  951,  953-54  (2001)  (dividing  commonly  considered  candidate  heuristic  cues 
into  five  categories:  party  affiliation,  ideology,  endorsements,  "viability"  information  from  polls, 
and  visual  appearance);  Victor  C.  Ottati  &  Robert  S.  Wyer,  Jr.,  The  Cognitive  Mediators  of 
Political  Choice:  Toward  a  Comprehensive  Model  of  Political  Information  Processing,  in 
Information  and  Democratic  Processes,  supra  note  26,  at  1 86, 2 1 1  - 1 4  (reviewing  commonly 
identified  heuristic  cues  for  candidates,  including  party  affiliation  and  image). 

42.  See,  e.g.,  Delli  Carpini  &  Keeter,  supra  note  24,  at  53-55  (arguing  that  while 
commonly  cited  heuristic  cues,  such  as  political  party  affiliation,  are  valuable,  they  alone  are  not 
sufficient  to  permit  voters  to  act  if  they  were  well-informed);  James  H.  Kuklinski  &  Norman  L. 
Hurley,  On  Hearing  and  Interpreting  Political  Messages:  A  Cautionary  Tale  of  Citizen  Cue- 
Taking,  56  J.  Pol.  729,  732-33  (1994)  (noting  the  limited  effectiveness  of  the  views  of  political 
elites  as  heuristic  cues);  James  H.  Kuklinski  &  Paul  J.  Quirk,  Reconsidering  the  Rational  Public: 
Cognition,  Heuristics,  and  Mass  Opinion,  in  Elements  of  Reason:  Cognition,  Choice,  and  the 
Bounds  of  Rationality  153,  155-59,  165-67  (Arthur  Lupia  et  al.  eds.,  2000)  (questioning 
whether  some  of  the  claimed  benefits  of  political  heuristic  cues  actually  exist,  although  not  denying 
that  they  may  be  helpful  to  voters);  Lau  &  Redlawsk,  supra  note  41,  at  966-67  (concluding  that 
political  heuristic  cues  may  tend  to  mislead  less  politically  sophisticated  voters  generally  and  even 
relatively  politically  sophisticated  voters  in  certain  situations);  Somin,  supra  note  24,  at  421-23 


264  INDIANA  LAW  REVIEW  [Vol.  44:255 


incorrect  conclusions  about  a  candidate;  for  example,  given  the  breadth  of 
positions  held  by  candidates  identified  with  each  of  the  major  parties,  the  label 
"Democrat"  or  "Republican"  does  not  necessarily  accurately  convey  whether  the 
candidate  is  pro-choice  or  pro-life,  pro-gun  control  or  pro-gun  rights,  and  so  on.43 
Some  cues  apparently  used  by  voters — a  candidate's  looks,  eloquence,  height,  or 
the  place  of  the  candidate's  name  on  the  ballot,  for  example — are  particularly 
vulnerable  in  this  respect.44  Furthermore,  voters  who  have  already  formed  an 
impression  of  a  candidate — including  an  inaccurate  one — may  be  relatively 
immune  to  the  influence  of  such  cues.45  Finally,  savvy  politicians,  campaign 
managers,  and  political  consultants  are  aware  of  these  cues  and  thus  may  be  able 
to  manipulate  their  use  to  their  advantage.46 

Despite  these  doubts,  there  is  significant  evidence  that  certain  heuristic  cues 
do  help  voters  to  act  as  if  they  were  well-,  or  at  least  better-,  informed — i.e.,  to 
vote  as  they  would  if  they  had  and  understood  more  of  the  relevant  information, 
particularly  with  respect  to  candidate  voting,  than  the  voters  actually  have.47  Of 
course,  such  evidence  does  not  demonstrate  that  voters  are  in  fact  well- 
informed — whether  through  heuristic  cues  or  otherwise.      This  evidence 


(discussing  the  limits  of  political  party  affiliation  as  a  helpful  cue);  id.  at  424-26  (same  with  respect 
to  opinion  leaders). 

43.  See,  e.g.,  James  M.  Snyder,  Jr.  &  Michael  M.  Ting,  An  Informational  Rationale  for 
Political  Parties,  46  Am.  J.  Pol.  Sci.  90  (2002)  (modeling  how  party  platforms  may  converge  or 
diverge  depending  on  various  factors);  Somin,  supra  note  24,  at  422  (noting  that  "where  party 
discipline  is  relatively  lax,  as  it  is  in  the  United  States,  the  positions  of  the  party  as  a  whole  may  be 
a  poor  predictor  of  the  [positions]  of  key  individual  candidates  for  office"). 

44.  See,  e.g.,  Garrett,  supra  note  18,  at  678  n.38  (citing  sources  relating  to  ballot  order). 

45.  See,  e.g.,  James  H.  Kuklinski  et  al.,  Misinformation  and  the  Currency  of  Democratic 
Citizenship,  62  J.  Pol.  790,  793  (2000)  (finding  that  people  who  are  misinformed  on  a  specific 
issue  tend  to  resist  correct  information,  although  the  strength  of  that  resistance  is  unclear);  see 
generally  Jon  D.  Hanson  &  Douglas  A.  Kysar,  Taking  Behavioralism  Seriously:  The  Problem  of 
Market  Manipulation,  74  N.Y.U.  L.  REV.  630,  646-54  (1 999)  (summarizing  how  existing  views  of 
a  candidate  can  lead  to  disregarding  or  misinterpreting  new  information). 

46.  See,  e.g.,  Shanto  Iyengar  et  al.,  The  Stealth  Campaign:  Experimental  Studies  of  Slate 
Mail  in  California,  1 7  J.L.  &  Pol.  295, 300-02  (200 1 )  (describing  the  use  of  carefully  designed  and 
targeted  "slate  mailers"  to  influence  voters);  Somin,  supra  note  26,  at  1 322  (noting  that  ill-informed 
voters  are  probably  the  most  vulnerable  to  such  manipulation). 

47.  See,  e.g.,  Larry  M.  Bartels,  Uninformed  Votes:  Information  Effects  in  Presidential 
Elections,  40  Am.  J.  Pol.  Sci.  194,  217  (1996)  (concluding  that  in  the  context  of  presidential 
elections,  voters  are  more  likely  to  vote  in  a  manner  consistent  with  their  personal  preferences 
apparently  through  the  use  of  heuristic  cues,  although  they  do  not  fully  match  how  they  would  vote 
if  they  had  complete  information);  Arthur  Lupia,  Shortcuts  Versus  Encyclopedias:  Information  and 
Voting  Behavior  in  California  Insurance  Reform  Elections,  88  AM.  POL.  Sci.  REV.  63, 63-64  ( 1 994) 
(concluding  that  in  the  limited  context  of  certain  ballot  initiatives,  knowing  whether  a  particular 
industry  supported  or  opposed  the  initiative  provided  a  useful  heuristic  cue).  But  see  Burnett  et  al., 
supra  note  24,  at  4  (concluding  that  in  the  direct  democracy  context,  uniformed  and  informed  voters 
tend  to  have  equal  success  in  applying  their  preferences). 


20 1 0]  DISCLOSURES  ABOUT  DISCLOSURE  265 


demonstrates  just  that  heuristic  cues  help  the  voters  act  more  as  z/they  are  well-, 
or  at  least  better-,  informed.  It  would  be  more  desirable  if  voters  were  actually 
well-informed,  particularly  since  being  well-informed  would  presumably  have 
broader  positive  effects.  Heuristic  cues  that  are  not  misleading,  however,  are  at 
least  an  improvement  for  the  relatively  uninformed. 

There  are  several  reasons,  however,  to  be  skeptical  of  the  proposition  that 
contributor  information,  at  least  in  its  current  form,  is  a  helpful  heuristic  cue. 
First,  it  is  not  clear  what  cues  such  information  provides  that  is  not  already 
provided  by  other  existing  and  readily  accessible  heuristic  cues  such  as  party 
affiliation  and  endorsements.48  These  cues,  like  contributor  information,  also 
arguably  have  value  because  of  what  voters  know  about  the  third  parties 
involved.49  Studies  that  have  shown  the  greatest  positive  effect  from  contributor 
or  other  supporter  information  has  been  in  the  context  of  ballot  initiatives,  where 
party  affiliation  and  other  candidate-related  heuristic  cues  are  often  lacking. 
Here,  contributor  information  may  be  one  of  the  few,  if  not  the  only,  heuristic 
cues  available  to  voters.50 

Second,  it  appears  that  the  vast  majority  of  contributors  will  not  be  known 
to  the  vast  majority  of  voters,  and  so  the  fact  of  their  financial  support  will  not 
provide  any  useful  information  about  a  candidate  to  most  voters.51  That  is,  while 
a  voter  might  be  able  to  use  the  fact  that,  for  example,  Jane  Fonda  or  Rush 
Limbaugh  contributed  to  a  particular  candidate's  campaign  or  to  an  organization 
that  opposed  a  particular  candidate  to  intuit  correctly  something  about  the 
relevant  candidate's  qualifications  for  office  or  policy  positions,  the  vast  majority 


48.  See  generally  Cheryl  Boudreau,  Are  Two  Cues  Better  Than  One?  An  Analysis  of  When 
Multiple  Cues  Improve  Decisions  (Mar.  25,  2009),  available  at  http://papers.ssrn.com/sol3/ 
papers.crm?abstract_id=  1 368562  (noting  that  little  research  has  been  done  on  the  effect  of  multiple 
cues  and  concluding — based  on  controlled  experiments  focusing  on  cues  relating  to  the 
trustworthiness  of  a  knowledgeable  speaker — that  in  this  context,  two  cues  may  increase  the 
likelihood  of  a  correct  decision). 

49.  This  assumes,  of  course,  that  they  know  something  about  such  third  parties,  but  the  same 
limitation  applies  to  contributor  information.  See  Shaun  Bowler  &  Todd  Donovan,  Demanding 
Choices:  Opinion,  Voting,  and  Direct  Democracy  62  (1998)  (noting  that  endorsements  are 
only  a  useful  cue  if  a  voter  is  able  to  recognize  the  cue);  Somin,  supra  note  26,  at  1 320-21  (noting 
that  many  heuristic  Cues  require  a  foundation  of  basic  knowledge  to  be  useful). 

50.  See,  e.g.,  Bowler  &  Donovan,  supra  note  49,  at  168-70;  Garrett  &  Smith,  supra  note 
29,  at  297;  Kang,  supra  note  20,  at  1 151-53. 

51.  See  Mclntyre  v.  Ohio  Elections  Comm'n,  514  U.S.  334,  348-49  (1995)  (noting  that  "in 
the  case  of  a  handbill  written  by  a  private  citizen  who  is  not  known  to  the  recipient,  the  name  and 
address  of  the  author  add  little,  if  anything,  to  the  reader's  ability  to  evaluate  the  document's 
message");  Cal.  Pro-Life  Council,  Inc.  v.  Randolph,  507  F.3d  1 1 72, 1 1 79  n.8  (9th  Cir.  2007)  (citing 
a  survey  that  found  even  in  the  ballot  measure  context  that  it  is  endorsements  by  relatively  well- 
known  individuals  and  groups,  such  as  interest  groups,  politicians,  and  celebrities,  that  voters  find 
helpful);  McGeveran,  supra  note  18,  at  26-27  (finding  that  even  if  a  voter  correctly  identifies  a 
well-known  person's  or  group's  views,  that  voter  cannot  tell  why  that  person  or  group  donated  to 
the  campaign). 


266  INDIANA  LAW  REVIEW  [Vol.  44:255 


of  reported  contributors  are  not  household  names  within  their  local  communities, 
much  less  for  most  of  the  relevant  electorate.52  After  all,  even  candidates  for 
positions  such  as  state  representative  in  a  relatively  small  state  usually  have 
dozens,  if  not  hundreds,  of  contributors  above  the  reporting  thresholds,  most  of 
whom  are  relatively  unknown  to  the  public.  Some  commentators  have  argued 
that  the  large  volume  of  contributor  information  may  have  a  negative  effect  on 
informing  voters.53 

Third  and  finally,  it  is  not  clear  that  most  voters  even  know  contributor 
information  before  they  enter  the  voting  booth.54  While  party  affiliation  is 
usually  listed  on  the  ballot,  and  interest  group,  newspaper,  and  celebrity 
endorsements  are  often  circulated  widely,  voters  generally  gain  access  to 
contributor  information  only  by  proactively  searching  for  such  information, 
which  few  voters  probably  do  even  with  Internet-accessible  databases.55  There 
are  a  number  of  private  groups  that  take  the  available  contributor  information  and 
attempt  to  render  it  more  accessible  to  voters  by,  for  example,  providing  maps 
that  show  the  locations  of  contributors56  or  reporting  only  contributor  information 
for  supporters  of  particular  types  of  candidates.57  There  is  little  evidence, 
however,  that  such  attempts  have  been  particularly  successful  in  educating 
voters,  especially  before  election  day.  Even  intermediaries  such  as  the  media, 
which  might  be  viewed  as  in  the  business  of  educating  voters  before  election  day, 


52.  See  Samuel  L.  Popkin  &  Michael  A.  Dimock,  Political  Knowledge  and  Citizen 
Competence,  in  Citizen  Competence  and  DEMOCRATIC  Institutions  1 17, 143  (Stephen  L.  Elkin 
&  Karol  Edward  Soltan  eds.,  1999)  (noting  that  for  individuals  with  relatively  low  political 
knowledge,  "party  identification  and  well-known  political  figures"  serve  as  useful  cues). 

53.  See,  e.g.,  Bauer,  supra  note  14,  at  52;  Elizabeth  Garrett,  Voting  with  Cues,  37  U.  RICH. 
L.  Rev.  1011,1 045-47  (2003)  (noting  the  potential  for  harmful  "information  cascades"  but  arguing 
that  disclosure  of  group  support  for  candidates  is  unlikely  to  lead  to  such  harmful  effects).  This 
potential  for  negative  effects  may  be  increased  by  the  fact  that  disclosures  generally  also  require 
disclosure  of  information  relating  to  expenditures  as  well  as  contributions. 

54.  See  Michael  J.  Malbin  &  Thomas  L.  Gais,  The  Day  After  Reform:  Sobering 
Campaign  Finance  Lessons  from  the  American  States  46-48  (1998)  (noting  the  difficulties 
faced  in  ensuring  that  usable  contributor  information  reaches  voters,  particularly  before  Election 
Day). 

55.  See  Ackerman  &  Ayres,  supra  note  1 8,  at  27  ("[I]f  most  voters  pay  scant  attention  to 
politics,  they  won't  take  the  time  to  go  through  the  lengthy  lists  of  donors  published  in  the  name 
of  'full  information.'");  see  generally  Richard  Davis,  The  Web  of  Politics:  The  Internet's 
Impact  on  the  American  Political  System  23  (1999)  (noting  that  most  citizens,  on  most 
political  issues,  will  not  take  the  time  to  seek  out  information  regardless  of  how  inexpensive  or 
convenient  it  may  be  to  do  so). 

56.  See,  e.g.,  Campaign  Donors:  Fundrace  2008,  HUFFPNGTON  POST,  http://fundrace. 
huffingtonpost.com  (last  visited  Aug.  10,  2010)  (allowing  the  identification  of  federal  election 
contributors  by  geographic  location). 

57.  See,  e.g.,  Prop  8  Maps,  http://www.eightmaps.com  (last  visited  Aug.  10,  2010) 
(providing  maps  showing  the  locations  of  supporters  of  California's  Proposition  8,  which  changed 
California's  constitution  to  prohibit  same-sex  marriage). 


20 1 0]  DISCLOSURES  ABOUT  DISCLOSURE  267 


have  a  variety  of  incentives — the  need  to  attract  readership  and  to  demonstrate 
autonomy  and  objectivity,  for  example — that  shape  and  limit  their  use  of  political 
contributor  data.58  There  are  also  significant  reasons  to  believe  that  the  most 
effective  location  for  providing  useful  information  is  on  the  ballot  itself,  which 
never  includes  contributor  information.59 

Indeed,  at  least  some  of  the  efforts  by  institutions  that  have  the  capacity  to 
review  and  reformat  contributor  data  appear  to  be  designed  primarily  to  inform 
neighbors,  customers,  co-workers,  employers,  and  others  with  relationships  to  the 
contributors  about  the  character  or  positions  of  the  contributors,  not  to  inform 
voters  about  the  character  or  positions  of  the  candidates.  For  example,  Fundrace 
2008,  a  database  of  federal  election-related  contributors  maintained  by  the 
Huffington  Post  website,  is  in  prominent  part  designed  to  help  locate  contributors 
on  a  map  and  to  ease  learning  about  which  candidates  or  political  groups  one's 
neighbors  support.60  Similarly,  MSNBC  sifted  through  federal  contributor  data 
to  identify  journalists  who  had  made  federal  political  contributions,  often  in 
apparent  violation  of  their  employers'  stated  policies.61  While  it  is  possible  that 
such  use  of  this  information  may  have  other  positive  effects — such  as  reinforcing 
journalistic  neutrality  in  the  case  of  the  MSNBC  example — it  does  not  further  the 
voter-informing  interest  relied  upon  by  the  Supreme  Court  in  Citizens  United.62 

There  are,  however,  intermediary  institutions  that  process  the  raw  contributor 
data  and  highlight  aspects  of  the  data  that  relate  to  the  candidates,  as  opposed  to 
the  contributors.  For  example,  the  media  often  publicly  identifies  controversial 
or  high-profile  contributors,  which  in  turn  may  lead  to  candidates  and  political 
groups  eschewing  contributors  from  such  sources.  Similarly,  the  media  and  other 
groups  may  identify  certain  candidates  or  political  groups  as  being  heavily 
supported  by  employees  of  a  particular  industry  or  from  a  particular  geographic 
region.63  Candidates  and  political  parties,  as  well  as  the  government  agencies 


58.  See  Raymond  J.  La  Raja,  Sunshine  Laws  and  the  Press:  The  Effect  of  Campaign 
Disclosure  on  News  Reporting  in  the  American  States,  6  ELECTION  L.J.  236,  238-39  (2007) 
(discussing  such  concerns  with  respect  to  newspaper  use  of  campaign  finance  data). 

59.  E.g.,  Burnett  et  al.,  supra  note  24,  at  38-42. 

60.  See  Campaign  Donors:  Fundrace  2008,  supra  note  56. 

61.  See  Bill  Dedman,  The  List:  Journalists  Who  Wrote  Political  Checks,  MSNBC.COM, 
http://www.msnbc.msn.com/id/191 13455/ns/politics  (last  updated  July  15,  2007). 

62.  See  generally  Daniel  J.  Solove,  The  Virtues  of  Knowing  Less:  Justifying  Privacy 
Protections  Against  Disclosure,  53  DukeL.J.  967,  1044-47  (2003)  (discussing  the  possible  value 
of  "gossip"  to  society,  or  the  lack  thereof). 

63.  See,  e.g.,  Cal.  Pro-Life  Council,  Inc.  v.  Randolph,  507  F.3d  1172,  1179  n.8  (9th  Cir. 
2007)  (quoting  a  journalist  crediting  campaign  finance  disclosure  laws  with  allowing  her  to  inform 
readers  that  support  for  a  particular  ballot  measure  did  not  come  primarily  from  small  businesses, 
as  had  been  publicly  represented  by  its  supporters,  but  instead  from  "giant  tobacco  [c]ompanies"); 
ProtectMarriage.com  v.  Bowen,  599  F.  Supp.  2d  1 1 97, 1 224  n.  1 1  (E.D.  Cal.  2009)  (concluding  that 
it  is  "very  probable"  that  the  California  electorate  would  be  interested  in  knowing  the  extent  to 
which  financial  support  for  a  ballot  initiative  comes  from  outside  the  state);  see  also  Patrick  M. 
Garry  et  al.,  Raising  the  Question  of  Whether  Out-of-State  Political  Contributions  May  Affect  a 


268  INDIANA  LAW  REVIEW  [Vol.  44:255 


that  receive  the  initial  reports,  may  also  review  this  information  so  as  to  highlight 
information  of  particular  salience  to  voters  before  the  relevant  election.64  Of 
course,  if  the  receiving  government  agencies  served  in  this  filtering  role  instead, 
they  could  disclose  certain  patterns  of  information  (e.g.,  industry  or  geographic 
distribution)  without  disclosing  individual  identification  data.  Choosing  what 
patterns  should  be  disclosed  might  not  be  a  simple  task;  therefore,  private  parties 
should  experiment  with  what  the  public  finds  useful  to  know.65 

What  is  less  clear  is  the  extent  and  effect  of  these  filtering  efforts.  Especially 
in  an  age  of  shrinking  media  budgets,  there  is  reason  to  believe  that  such  filtering 
by  intermediaries  is  relatively  limited.66  Even  if  intermediaries  serve  in  this  role, 
at  least  three  possible  effects  could  be  imagined.  First,  and  most  positively,  the 
filtered  information  may  be  significantly  more  likely  to  reach  and  be  used  by 
voters  than  the  unfiltered,  individual  contributor  information.67  There  is, 
however,  some  skepticism  that  this  is  the  case.68  For  example,  research  indicates 
that  newspapers  provide  very  limited  coverage  of  campaign  finance  issues, 
especially  absent  a  significant  scandal  involving  contributions.69 

Second,  candidates  and  political  groups  may  avoid  certain  contributors  or 
certain  concentrations  of  contributors  because  they  perceive  a  potential  for  an 
adverse  inference  from  voters,  whether  in  fact  such  an  adverse  inference  is  likely 
to  occur.70  For  example,  voters  likely  view  candidates  and  ballot  initiatives  that 
receive  support  from  certain  disfavored  industries,  such  as  tobacco  companies, 
less  favorably.  Again,  the  existence,  much  less  the  strength,  of  such  an  effect  is 
unknown. 

Third,  and  less  positively,  the  intermediary  organizations  may  selectively 
publish  or  emphasize  certain  contributor  information  to  further  their  particular 


Small  State's  Political  Autonomy:  A  Case  Study  of  the  South  Dakota  Voter  Referendum  on 
Abortion,  55  S.D.  L.  Rev.  35,  36  (2010)  (raising  concerns  that  out-of-state  contributions  to  voter 
referendum  campaigns  may  undermine  a  state's  independence  from  other  states,  a  risk  that  could 
only  be  known  if  the  states  where  such  contributions  originate  are  known). 

64.  See  Garrett,  supra  note  53,  at  1022  (noting  that  many  voters  rely  on  intermediaries  to 
bring  information  to  their  attention). 

65.  See,  e.g.,  Investigate  Money  in  State  Politics,  FOLLOW  THE  MONEY,  http://www. 
followthemoney.org  (last  visited  Aug.  10, 2010)  (providing  a  variety  of  filters  for  federal  and  state 
political  campaign  contributors).  But  see  McGeveran,  supra  note  1 8,  at  27-28  (questioning  whether 
either  government  or  private  actors  have  the  capacity  to  engage  in  meaningful  filtering). 

66.  See,  e.g.,  Malbin  &  GAIS,  supra  note  54,  at  46-47. 

67.  See  Wilcox,  supra  note  15,  at  377. 

68.  See,  e.g.,  MALBIN  &  Gais,  supra  note  54,  at  48. 

69.  See  La  Raja,  supra  note  58,  at  246-47. 

70.  See  Ackerman  &  Ayres,  supra  note  1 8,  at  27,  27  nn.2-3  (noting  that  candidates  will 
consider  the  potential  costs  of  accepting  money  from  notorious  groups,  although  expressing 
skepticism  that  such  costs  will  be  considered  high  enough  to  refuse  significant  contributions  in  most 
cases);  La  Raja,  supra  note  58,  at  248  (arguing  that  a  lack  of  increased  scandal  stories  when  better 
disclosure  regimes  are  in  place  may  indicate  that  politicians  are  more  careful  about  who  they  accept 
contributions  from  when  there  is  greater  public  disclosure  of  contributors). 


20 1 0]  DISCLOSURES  ABOUT  DISCLOSURE  269 


agendas  or  narratives,  thereby  actually  distorting  the  information  reaching  voters 
and  encouraging  intuitive  leaps  to  false  conclusions  about  candidates.71  Even 
intermediaries  that  are  relatively  unbiased,  such  as  journalists,  may  be  subject  to 
such  distortions  if  they  rely  on  others  to  filter  this  information  for  them.72 

There  are  data  indicating,  however,  that  the  less  prominent  second  aspect  of 
most  disclosure  regimes  may  actually  be  more  effective  when  it  comes  to 
informing  voters.  Required  disclaimers  on  political  communications  are  similar 
to  interest  group  endorsements  in  that  they  demonstrate  the  financial  commitment 
of  groups  or  relatively  wealthy  individuals.  Unlike  the  vast  majority  of 
contributors,  such  well-financed  organizations  (or  wealthy  individuals)  are  more 
likely  to  be  known  to  voters,  at  least  if  they  commonly  take  public  positions  on 
candidates  as  well  as  policy  issues.73  The  fact  that  the  disclaimer  represents  a 
usually  substantial  financial  commitment  reduces  the  chance  that  this  cue  could 
be  manipulated.74  Perhaps  most  importantly,  because  the  disclaimer  information 
is  communicated  directly  to  voters  when  they  receive  the  organization  or 
individual's  message,  there  is  evidence  that  it  does  help  voters  evaluate  both  the 
message  received  and  the  identified  candidate.75  As  a  constitutional  matter, 
however,  current  law  would  prohibit  disclaimer  requirements  for  certain 
communications  such  as  personally  written  leaflets  distributed  by  an  individual, 
as  was  the  case  in  Mclntyre  v.  Ohio  Elections  Commission.16 

The  existing  mass  media  disclaimer  regimes  are  not  without  their  flaws. 
While  some  organizations  that  pay  for  political  communications  are  well-known 
to  voters,  others  are  "front"  organizations  given  innocuous-sounding  or  otherwise 


71.  See,  e.g.,  Bauer,  supra  note  14,  at  39  n.4,  45-46  (arguing  that  some  intermediaries  use 
disclosed  information  to  advance  their  own  agendas,  including  to  generate  support  for  more 
expansive  campaign  finance  regulation). 

72.  See  La  Raja,  supra  note  58,  at  248  (identifying  this  concern). 

73 .  See  Garrett,  supra  note  1 8,  at  680-8 1  (using  well-known  groups  such  as  the  NRA  and  the 
Sierra  Club  as  examples  of  contributors  who  provide  useful  heuristic  cues). 

74.  See  Boudreau,  supra  note  20,  at  288  (concluding  that  information  is  generally  more 
helpful  and  reliable  if  the  speaker  shares  a  common  interest  with  the  decisionmaker,  faces  a  penalty 
for  lying,  or  is  verified  by  a  third  party). 

75.  See,  e.g.,  Kang,  supra  note  20,  at  1180  n.151;  see  also  Mclntyre  v.  Ohio  Elections 
Comm'n,  514  U.S.  334,  354  n.18  (1995)  (quoting  Bellotti  with  approval  but  distinguishing  the 
individually  written  and  funded  leaflet  in  that  case);  First  Nat'l  Bank  of  Bos.  v.  Bellotti,  435  U.S. 
765,  792  n.32  (1978)  (stating  that  in  the  ballot  initiative  context,  "[c]orporate  advertising,  unlike 
some  methods  of  participation  in  political  campaigns,  is  likely  to  be  highly  visible.  Identification 
of  the  source  of  advertising  may  be  required  as  a  means  of  disclosure,  so  that  the  people  will  be  able 
to  evaluate  the  arguments  to  which  they  are  being  subjected.");  Elisabeth  R.  Gerber  &  Arthur  Lupia, 
Voter  Competence  in  Direct  Legislation  Elections,  in  CITIZEN  COMPETENCE  AND  DEMOCRATIC 
Institutions,  supra  note  52,  at  147,  157  (suggesting  that  contributor  information  may  enhance 
voter  competence  if  it  were  made  more  accessible  to  voters  by,  for  example,  "requiring  candidates 
or  election  officials  to  purchase  access  to  the  print  or  broadcast  media  and  disseminate  the  names 
of  large  contributors"). 

76.  514  U.S.  334(1995). 


270  INDIANA  LAW  REVIEW  [Vol.  44:255 


misleading  names  that  hide  the  true  motivations  and  views  of  those  who  created 
and  fund  them.77  Perhaps  the  most  famous  example  of  such  a  group  was  the 
creation  of  "Republicans  for  Clean  Air"  by  a  small  group  of  George  W.  Bush 
supporters  to  oppose  Senator  McCain  in  the  2000  Republican  primary  elections.78 
Individuals  can  also  pay  for  such  communications,  and  even  wealthy  individuals 
who  solely  fund  such  communications  may  not  be  known  to  most  voters.  Thus, 
disclosure  of  the  names  of  wealthy  individuals  by  themselves  may  not  provide 
a  useful  cue. 

The  bottom  line  is  that  the  Supreme  Court's  simple  assertion  that  the  existing 
disclosure  and  disclaimer  regime  "enables  the  electorate  to  make  informed 
decisions  and  give  proper  weight  to  different  speakers  and  messages" 79  is  deeply 
flawed.  As  noted  previously,  while  existing  research  indicates  that  such 
information  may  help  inform  voters,  whether  it  has  a  reasonable  chance  of  doing 
so  depends  both  on  what  specific  information  is  disclosed  and  how  that 
information  is  disseminated.  More  research  is  needed,  but  it  appears  that  the 
most  likely  way  to  help  voters  make  decisions  as  if  they  were  fully  informed  is 
to  limit  disclosures  to  contributors  who  are  likely  to  be  known  to  voters  and  to 
expand  disclosures  through  disclaimers  in  the  political  communications  that  the 
largest — and  likely  most  well-known — contributors  support.  Databases  of 
numerous  $200  contributors  (or  less,  in  the  case  of  most  states)  may  serve  other 
purposes — for  example,  enhancing  enforcement  of  contribution  limits  or 
identifying  contributors  who  are  barred  from  making  contributions  such  as 
foreign  citizens,  journalists,  and  charitable  organizations.  Yet  there  is  little,  if 
any,  evidence  that  this  information  even  reaches  voters  before  election  day,  much 
less  is  useful  to  the  voters  when  they  decide  how  to  vote.80  Maintaining  and 
ensuring  the  accuracy  of  such  databases  may  also  draw  limited  enforcement 
resources  away  from  other  aspects  of  campaign  finance  laws.81 


77.  See,  e.g.,  McConnell  v.  FEC,  540  U.S.  93, 128, 197  (2003)  (providing  examples  of  such 
organizations);  Cal.  Pro-Life  Council,  Inc.  v.  Randolph,  507  F.3d  1 172,  1 179  n.8  (9th  Cir.  2007) 
(listing  quotes  from  both  a  political  science  professor  and  a  public  relations  firm  executive 
regarding  the  common  use  of  such  organizations);  Mike  Mclntire,  Hidden  Under  Tax-Exempt 
Cloak,  Political  Dollars  Flow,  N.Y.  TIMES,  Sept.  24,  2010,  at  Al,  available  at  http://www. 
nytimes.com/20 1 0/09/24/us/politics/24donate.html;  see  also  Garrett  &  Smith,  supra  note  29,  at  296 
(discussing  the  use  of  "veiled  political  actors"  in  the  ballot  initiative  context). 

78.  See  Mark  Sherman  &  Jena  Heath,  Bush  Denies  Ad  Attacking  McCain  on  Environment, 
Atlanta  J.-CONST.,  Mar.  4,  2000,  at  A4;  Richard  W.  Stevenson  &  Richard  Perez-Pena,  Wealthy 
Texan  Says  He  Bought  Anti-McCain  Ads,  N.Y.  TIMES,  Mar.  4,  2000,  at  Al . 

79.  Citizens  United  v.  FEC,  130  S.  Ct.  876,  916  (2010). 

80.  Higher  thresholds  for  disclosure  requirements  also  are  less  vulnerable  to  constitutional 
challenge.  See  Hasen,  supra  note  5,  at  280;  McGeveran,  supra  note  18,  at  42. 

8 1 .  See  Todd  Lochner  &  Bruce  E.  Cain,  Equity  and  Efficacy  in  the  Enforcement  of  Campaign 
Finance  Laws,  11  Tex.  L.  Rev.  1 89 1 , 1 9 1 3- 1 5  ( 1 999)  (concluding,  based  on  a  study  of  early  1 990s 
FEC  enforcement  actions,  that  the  vast  majority  of  claims  of  disclosure  violations  considered  by 
the  FEC  are  brought  by  third  parties,  and  many  such  claims  are  trivial).  But  see  Todd  Lochner  & 
Bruce  E.  Cain,  The  Enforcement  Blues:  Formal  and  Informal  Sanctions  for  Campaign  Finance 


20 1 0]  DISCLOSURES  ABOUT  DISCLOSURE  27 1 


Of  course,  if  there  were  only  a  potential  upside  to  such  disclosures  and  no 
downside,  then  keeping  and  expanding  the  existing  disclosure  and  disclaimer 
regime,  however  imperfect,  could  be  justified  both  constitutionally  and  as  a 
policy  matter.  There  is  a  commonly  asserted  downside,  however — the  risk  of 
retaliation  against  those  identified  through  required  disclosures,  and  the  related 
fear  of  retaliation  that  may  chill  political  contributions  by  others.  It  is  to  this 
other  narrative  that  we  now  turn. 

II.  Risk:  Retaliation 

There  are  several  potential  harms  cited  by  critics  of  the  current  disclosure 
and  disclaimer  rules,  including  privacy  costs  and  administrative  burdens  on  the 
organizations  that  must  provide  the  required  information  as  well  as  actual  or 
potential  retaliation  and  the  related  chilling  effect  on  potential  contributors.  The 
focus  of  this  Part  is  on  the  retaliation-related  harms  for  three  reasons.  First,  the 
retaliation-related  harms  are  included  in  the  privacy  costs  and  represent  the  most 
verifiable  part  of  those  costs.82  Second,  while  increased  computer  capacity  may 
enhance  the  potential  for  retaliation,  as  detailed  below,  at  the  same  time,  it  is 
significantly  reducing  the  administrative  costs  of  disclosure  given  the  ease  of 
maintaining  databases  and  electronically  filing  required  reports.  Whether  such 
administrative  burdens  are  constitutionally  significant  is  also  unclear.83  Third, 
it  was  the  costs  of  retaliation  that  Justice  Thomas  relied  on  in  his  opinion 
objecting  to  the  conclusion  of  the  other  eight  Justices  that  the  disclosure  and 
disclaimer  provisions  at  issue  in  Citizens  United  were  constitutional.84 

The  retaliation  narrative,  like  the  informing-voters  narrative,  is  deceptively 
simple.  Public  disclosure  of  the  contributors  to  candidates,  political  groups,  and 
groups  that  engage  in  certain  types  of  political  communications  exposes  those 


Violations,  52  Admin.  L.  Rev.  629,  648-50  (2000)  (concluding  that  the  California  Fair  Political 
Practices  Commission  appears  to  be  more  efficient  in  enforcing  its  disclosure-only  state  campaign 
finance  laws  than  the  FEC  is  with  respect  to  enforcing  the  broader  federal  campaign  finance  laws). 

82.  See,  e.g.,  McGeveran,  supra  note  18,  at  16-20  (discussing  the  privacy  costs  of  political 
contribution  disclosure — including,  but  not  limited  to,  the  risk  of  retaliation);  Wilcox,  supra  note 
15,  at  375. 

83.  Compare  Citizens  United,  130  S.  Ct.  at  897-98  (finding  the  disclosure,  recordkeeping, 
and  similar  administrative  requirements  related  to  forming  and  maintaining  a  political  committee 
or  PAC  to  be  unconstitutionally  burdensome,  without  mentioning  the  limits  on  contribution  sources 
and  amounts  applicable  to  PACs),  with  FEC  v.  Mass.  Citizens  for  Life,  Inc.,  479  U.S.  238, 252-56 
(1986)  (Brennan,  J.,  plurality  op.)  (finding  the  PAC  alternative  unconstitutionally  burdensome 
because  of  the  administrative  burdens  on  PACs,  including  limits  on  whom  can  be  solicited  for 
contributions);  id.  at  265-66  (O'Connor,  J.,  concurring  in  part  and  concurring  in  judgment) 
(concluding  that  the  PAC  alternative  was  unconstitutionally  burdensome  only  because  it  both 
requires  "a  more  formalized  organizational  form  and  significantly  reduces  or  eliminates  the  sources 
of  funding  for  groups"  with  few  or  no  "members"). 

84.  Citizens  United,  130  S.  Ct.  at  980-82  (Thomas,  J.,  concurring  in  part  and  dissenting  in 
part). 


272  INDIANA  LAW  REVIEW  [Vol.  44:255 


contributors  to  a  significant  risk  of  retaliatory  actions  by  those  who  disagree  with 
the  supported  candidates  or  groups.85  Such  retaliation  harms  the  contributors  for 
exercising  their  constitutional  right  to  make  such  contributions  and  may  chill  the 
exercise  of  that  right  by  others  sufficiently  to  raise  constitutional  concerns.86  An 
important  coda  to  this  narrative  is  that  the  existing  legal  avenue  of  obtaining  an 
exemption  from  the  disclosure  requirements  on  a  case-by-case  basis  is 
insufficient  to  address  this  risk.87 

The  strength  of  this  narrative  depends  on  the  extent  to  which  such  retaliation 
in  fact  occurs  or  is  perceived  to  occur.  As  those  who  argued  in  favor  of  this 
narrative  in  Citizens  United  undoubtedly  discovered,  there  is  very  little  research 
on  this  point.  It  is  likely  for  this  reason  that  neither  they,  nor  those  who  sought 
to  discount  or  minimize  this  risk,  could  point  to  more  than  anecdotal  evidence  of 
retaliation  against  contributors  to  political  causes.  It  is  with  that  anecdotal 
evidence  that  we  start. 

The  available  anecdotal  information  generally  falls  into  five  categories. 
First,  government  agencies  in  various  states  during  the  civil  rights  era  attempted 
to  obtain  the  member  and  donor  rolls  of  local  NAACP  chapters  in  order  to 
expose  such  members  and  donors  to  intimidation.  These  efforts  eventually  led 
to  Supreme  Court  decisions  barring  such  attempts  and,  as  a  result,  limiting  the 
ability  of  governments  to  require  such  disclosure  absent  a  sufficiently  important 
governmental  interest.88  Second,  there  are  the  documented  instances  of 
retaliation  against  publicly  disclosed  contributors  to  political  parties  self- 
identified  as  "communist"  or  "socialist."  In  these  situations,  the  courts,  and  on 
occasion,  the  relevant  government  agencies,  have  granted  exemptions  on  a  case- 
by-case  basis  to  the  generally  applicable  campaign  finance  disclosure 
requirements.  However,  this  was  done  only  after  the  parties  at  issue  provided 
evidence  that  there  was  a  reasonable  probability  of  retaliation  against  their 
financial  supporters  if  their  identities  became  publicly  known.89  Third,  there  are 
the  flurry  of  stories  about  retaliation  against  publicly  disclosed  supporters 
following  the  passage  of  California's  Proposition  8.90  Fourth,  there  are  stories 


85.  See,  e.g.,  McGeveran,  supra  note  18,  at  16-20. 

86.  See  Buckley  v.  Valeo,  424  U.S.  1,71  (1976);  DeGregory  v.  Att'y  Gen.,  383  U.S.  825, 
829  (1966);  NAACP  v.  Alabama,  357  U.S.  449,  462-63  (1958). 

87.  See  Buckley,  424  U.S.  at  74  (stating  that  such  an  exemption  is  constitutionally  required 
when  there  is  a  reasonable  probability  that  disclosure  will  lead  to  threats,  harassment,  or  reprisals). 

88.  See  Roberts  v.  U.S.  Jaycees,  468  U.S.  609,  623  (1984);  Buckley,  424  U.S.  at  1 5;  Kusper 
v.  Pontikes,  414  U.S.  51,  58-59  (1973);  Gibson  v.  Fla.  Legis.  Investig.  Comm.,  372  U.S.  539,  546 
(1963);  Bates  v.  City  of  Little  Rock,  361  U.S.  516,  525-27  (1960);  NAACP,  357  U.S.  at  464-66. 

89.  E.g.,  Brown  v.  Socialist  Workers  '74  Campaign  Comm.,  459  U.S.  87,  102  (1982);  FEC 
v.  Hall-Tyner  Election  Campaign  Comm.,  678  F.2d  4 1 6, 423  (2d  Cir.  1 982)  (involving  a  group  that 
supported  communist  candidates);  McArthur  v.  Smith,  716  F.  Supp.  592,  593-94  (S.D.  Fla.  1989) 
(involving  a  Socialist  Workers  Party  candidate  and  his  supporters);  Socialist  Workers  Party,  FEC 
Adv.  Op.  2009-01,  at  1,  10-11  (Mar.  20,  2009)  (renewing  the  partial  exemption  from  the  federal 
disclosure  rules  for  several  socialist  political  parties  and  their  candidates). 

90.  See  Scott  M.  Noveck,  Campaign  Finance  Disclosure  and  the  Legislative  Process,  47 


20 1 0]  DISCLOSURES  ABOUT  DISCLOSURE  273 


about  retaliation,  or  fear  of  retaliation,  by  elected  officials  against  those  that 
supported  their  opponents.91  The  most  infamous  of  these  instances  was  the  "K 
Street  Project,"  where  Republican  members  of  Congress  threatened  lobbying 
organizations  with  a  loss  of  access  to  Republican  lawmakers  if  they  did  not  hire 
Republicans  for  their  lobbying  positions.92  Additionally,  there  are  other  stories 
about  such  retaliation  or  apparent  fear  of  such  retaliation.93  Finally,  there  has 
been  at  least  one  instance  where  disclosures  led  not  to  retaliation  based  on  the 
candidate,  group,  or  ballot  initiative  at  issue,  but  based  on  other  information 
disclosed  about  a  contributor,  such  as  the  contributor's  employer.94 

The  veracity  of  the  retaliation  stories  is  generally  not  at  issue.  The  history 
of  the  civil  rights  movement  is  well  known;  the  communist  and  socialist  political 
parties  have  had  to  produce  sufficient  evidence  of  retaliation  to  qualify  for 
exemption;  the  Proposition  8  retaliation  stories  were  relatively  widespread;  the 
K  Street  Project  undoubtedly  existed;  and  even  the  apparently  rare  case  of 
retaliation  unrelated  to  the  candidate  or  group  at  issue  has  been  documented.  The 
questions  raised  include:  What  is  the  extent  of  actual  retaliation  and  perception 
of  retaliation?  and  What  is  the  extent  to  which  the  possibility  of  retaliation  leads 
potential  contributors  not  to  contribute,  or  to  contribute  less  (i.e.,  below  the 
reporting  thresholds)? 

With  respect  to  the  first  question,  there  is  surprisingly  little  information. 
Given  the  public  availability  of  contributor  information,  it  would  appear  to  be  a 
relatively  simple  task  to  survey  a  statistical  valid  sample  of  contributors  to 
determine  if  they  have  experienced  any  form  of  retaliation  as  a  result  of  the 
disclosure  of  their  financial  support.  Yet  for  whatever  reason,  no  one  appears  to 
have  done  such  a  survey,  much  less  a  series  of  surveys,  focusing  on  contributors 
to  different  types  of  groups  (e.g.,  candidates,  political  parties,  other  political 


Harv.  J.  ON  Legis.  75, 98-99  (20 1 0)  (gathering  accounts  of  such  retaliation);  Thomas  Messner,  The 
Price  of  Prop  8,  Heritage  Found.  (Oct.  22,  2009),  http://www.heritage.org/Research/Reports/ 
2009/1 0/The-Price-of-Prop-8  (same). 

9 1 .  See,  e.g. ,  JACKSON,  supra  note  1 8,  at  69-70, 77-8 1  (detailing  how  officials  in  both  major 
parties  pressured  donors  to  change  their  giving  patterns  on  threat  of  losing  access  to  policymakers). 

92.  See  Nicholas  Confessore,  Welcome  to  the  Machine:  How  the  GOP  Disciplined  K  Street 
and  Made  Bush  Supreme,  WASH.  MONTHLY  29, 30  (Aug.  2003);  Peter  Perl,  Absolute  Truth,  WASH. 
POST,  May  13,  200 1 ,  at  Wl  2;  Jim  VandeHei,  GOP  Monitoring  Lobbyists '  Politics:  White  House, 
Hill  Access  May  Be  Affected,  WASH.  POST,  June  10,  2002,  at  Al . 

93.  See,  e.g. ,  Mary  Ann  Akers,  Kerry  Puts  GOP  Donor  on  Defensive,  WASH.  POST,  Feb.  28, 
2007,  at  A17  (reporting  that  Senator  John  Kerry  questioned  ambassadorial  nominee  Sam  Fox 
regarding  his  donations  to  Swift  Board  Veterans  for  Truth);  Kimberly  A.  Strassel,  Challenging 
Spitzerism  at  the  Polls,  Wall  St.  J.,  Aug.  1,  2008,  at  Al  1  (reporting  that  a  candidate  challenging 
an  incumbent  state  attorney  general  stated  that  many  potential  contributors  did  not  donate  for  fear 
of  retaliation  by  the  incumbent  if  their  names  appeared  in  the  challenger's  records). 

94.  See  Gigi  Brienza,  /  Got  Inspired.  I  Gave.  Then  I  Got  Scared. ,  WASH.  POST,  July  1 ,  2007, 
at  B3  (recounting  how  the  author's  donations  to  two  presidential  campaigns  led  to  her  being 
publicly  targeted  by  a  radical  and  violent  animal  rights  group  because  it  learned,  through  public 
campaign  contribution  information,  that  she  worked  for  Bristol-Myers  Squibb). 


274  INDIANA  LAW  REVIEW  [Vol.  44:255 


groups,  or  ballot  initiative  committees  relating  to  various  topics). 

Even  generalizing  the  anecdotal  information  beyond  the  specific  contexts  in 
which  undoubted  retaliation  occurred  is  problematic  without  further  information. 
The  civil  rights  movement  was  arguably  a  unique  event  in  our  nation's  history 
for  which  there  is  no  current  parallel  with  respect  to  the  heated  emotions  and 
entrenched  opposition  that  arose.  Retaliation  against  supporters  of  communist 
or  socialist  parties  does  not  necessarily  indicate  that  supporters  of  other  parties, 
even  other  third  parties  such  as  the  Libertarians  or  the  Greens,  are  at  risk.  This 
was  the  conclusion  that  the  Supreme  Court  reached  in  Buckley  v.  Valeo  when  it 
held  that  the  First  Amendment  did  not  require  a  blanket  exemption  for  minor 
parties  from  the  requirement  that  they  publicly  disclose  their  financial 
supporters.95  The  circumstances  that  led  to  the  retaliation  against  Proposition  8 
supporters — including  the  strong  lesbian-gay-bisexual-transgender  (LGBT) 
community  in  California  and  the  perhaps  surprising  passage  of  Proposition 
8 — may  not  even  apply  to  same-sex  marriage  ballot  initiatives  in  other  states, 
much  less  to  candidate  elections.96  Also,  the  use  of  disclosed  information  for 
unrelated  retaliation  purposes  appears  to  be  very  rare,  with  apparently  only  one 
situation  identified  recently.97 

Perhaps  the  most  troubling  set  of  retaliation  anecdotes  are  those  relating  to 
the  K  Street  Project  and  stories  about  less  well-organized  state  and  local 
equivalents.  The  reason  for  this  is  if  anyone  actually  pours  through  campaign 
contribution  databases,  it  is  probably  elected  officials  and  their  staffs.  Such 
stories  are  essentially  the  reverse  of  rent-seeking  by  elected  officials,  where  an 
official  threatens  lobbyists  and  interest  groups  with  action,  or  inaction,  that  will 
hurt  a  particular  group's  interests  unless  the  lobbyist  or  interest  group  provides 
a  certain  level  of  financial  support  to  the  official's  re-election  campaign.98  The 
K  Street  Project  and  similar  stories  suggest  that  elected  officials  may  also  use  the 
threat  of  negative  action  or  inaction  to  reduce  employment  of,  or  contributions 
by,  lobbyists  and  others  to  individuals  and  groups  who  are  likely  to  challenge 
these  officials.99  That  said,  such  stories  tend  to  be  limited  to  lobbyists  and  others 


95.  Buckley  v.  Valeo,  424  U.S.  1,  74  (1976). 

96.  See,  e.g.,  Nat'l  Org.  for  Marriage  v.  McKee,  666  F.  Supp.  2d  193,  206  n.74  (D.  Me. 
2009)  (stating  "nor  is  there  a  record  here  indicating  a  pattern  of  threats  or  specific  manifestations 
of  public  hostility  towards  [the  plaintiffs]  or  showing  that  individuals  or  organizations  holding 
similar  views  have  been  threatened  or  harmed"  in  litigation  by  anti-same  sex  marriage  groups 
challenging  Maine's  campaign  finance  disclosure  laws).  But  see  Eliza  Newlin  Carney,  New 
Spending  Rules  Mean  New  Backlash,  Nat'l  J.,  Aug.  30, 20 1 0  (reporting  retaliation  against  Target 
Corp.  and  Best  Buy  Co.  for  contributions  to  a  Minnesota  political  group  backing  an  anti-gay 
gubernatorial  candidate),  http://www.nationaljournal.com/njonline/po_20 1 00830_3944.php. 

97.  See  Brienza,  supra  note  94. 

98.  See,  e.g.,  Bruce  E.  Cain,  Moralism  and  Realism  in  Campaign  Finance  Reform,  1995  U. 
Chi.LegalF.  Ill,  124-25. 

99.  See  Garrett  &  Smith,  supra  note  29,  at  303  (noting  that  disclosure  of  groups  and 
individuals  that  support  ballot  initiatives  may  attract  retaliation  by  government  officials  in  particular 
because  these  initiatives  are  often  an  attempt  to  bypass  such  officials). 


20 1 0]  DISCLOSURES  ABOUT  DISCLOSURE  275 


involved  directly  in  seeking  to  influence  public  policy — groups  serving  an 
important  role  in  our  political  process  but  representing  only  a  small  subset  of  the 
general  public.  The  longevity  of  such  efforts  also  appears  to  be  limited  due  to  the 
shifting  winds  of  political  fortune. 

It  is  also  sometimes  difficult  to  sort  out  retaliation  against  supporters  whose 
political  views  were  known  for  reasons  other  than  the  public  disclosure  of  their 
financial  contributions.  For  example,  many  of  the  Proposition  8  retaliation 
stories  involved  supporters  who  advertised  their  support  through  signs  and 
bumper  stickers.100  While  such  stories  provide  evidence  of  the  potential  for 
retaliation  against  supporters  whose  support  is  publicly  known  only  because  of 
the  contributor  disclosure  system,  they  do  not  conclusively  demonstrate  that  there 
is  a  reasonable  probability  that  such  retaliation  will  occur. 

Finally,  the  degree  of  harm  caused  by  the  retaliation  is  uncertain  and  may  be 
relatively  low.  Setting  aside  the  arguably  unique  situation  of  the  civil  rights 
movement  and  the  limited  situation  of  communist  and  socialist  political  parties, 
there  had  been  a  number  of  alleged  incidences  of  individuals  losing  their 
livelihood  or  being  physically  threatened.  Much  of  the  alleged  retaliation, 
however,  appears  to  result  in  nothing  more  than  social  stigma  or 
embarrassment.101  The  federal  district  court  hearing  a  challenge  to  California's 
disclosure  laws  by  Proposition  8  supporters  refused  to  preliminarily  enjoin  those 
laws  in  part  because  it  found  that  "[plaintiffs'  claim  would  have  little  chance  of 
success  in  light  of  the  relatively  minimal  occurrences  of  threats,  harassment,  and 
reprisals."102  It  should  be  noted,  however,  that  after  the  court  issued  its  opinion, 
the  plaintiffs  submitted  forty-nine  declarations  of  individuals  (in  addition  to  the 
nine  originally  submitted  along  with  press  reports  of  retaliation)  alleging  various 


100.  See  Plaintiffs'  Statement  of  Undisputed  Facts  in  Support  of  Motion  for  Summary 
Judgment,  Appendices  A  &  B,  ProtectMarriage.com  v.  Bowen,  599  F.  Supp.  2d  1 197  (E.D.  Cal. 
2009)  (No.  2:09-CV-00058-MCE-DAD)  [hereinafter  Plaintiffs'  Statement  of  Undisputed  Facts] 
(providing  summaries  of  statements  by  fifty-eight  "John  Does"  regarding  retaliation  for  their 
support  of  Proposition  8,  which  included  displaying  yard  signs  and  bumper  stickers,  making  other 
public  pronouncements,  and  contributing  financially,  of  which  at  most  ten  appear  to  have  had  their 
support  revealed  solely  by  the  required  public  disclosure  of  their  financial  contributions). 

101.  See,  e.g.,  id.  (providing  summaries  of  statements  by  fifty-eight  "John  Does"  regarding 
retaliation  for  their  support  of  Proposition  8,  most  of  whom  experienced  relatively  minor  negative 
consequences);  Declaration  of  Sarah  E.  Troupis  in  Support  of  Plaintiffs'  Motion  for  Preliminary 
Injunction  at  2-4,  ProtectMarriage.com  v.  Bowen,  599  F.  Supp.  2d  1 197  (E.D.  Cal.  2009)  (No. 
2:09-CV-00058-MCE-DAD)  [hereinafter  Troupis  Declaration]  (listing  news  stories  reporting 
retaliation  against  Proposition  8  supporters,  including  death  threats,  physical  violence,  threats  of 
physical  violence,  vandalism,  and  job  losses,  but  also  less  serious  forms  of  retaliation  such  as 
peaceful  protests  and  negative  comments);  Brienza,  supra  note  94  (explaining  how  disclosure  led 
to  being  listed  as  a  "target"  by  a  radical  animal  rights  group,  but  no  more  specific  threats  or  actions 
resulted);  see  also  supra  notes  89-91  and  accompanying  text  (relating  to  government  official 
retaliation). 

102.  See  ProtectMarriage.com  v.  Bowen,  599  F.  Supp.  2d  1 197,  1216  (E.D.  Cal.  2009);  see 
also  Plaintiffs'  Statement  of  Undisputed  Facts,  supra  note  100. 


276  INDIANA  LAW  REVIEW  [Vol.  44:255 


forms  of  retaliation.103  A  related  issue  is  the  fact  that  many  of  the  retaliatory 
actions  are  in  the  form  of  legal  forms  of  political  protests — boycotts,  pickets, 
angry  emails  and  telephone  calls,  and  so  on — that  are  themselves  constitutionally 
protected  and  even  celebrated  as  demonstrating  political  engagement  and  a 
healthy  democracy,  arguably  providing  an  offsetting  benefit. 104  In  the  recent  Doe 
v.  Reedox&X  argument  relating  to  disclosure  of  ballot  initiative  petition  signers, 
Justice  Scalia  went  so  far  as  to  say,  "[T]he  fact  is  that  running  a  democracy  takes 
a  certain  amount  of  civic  courage.  And  the  First  Amendment  does  not  protect 
you  from  criticism  or  even  nasty  phone  calls  when  you  exercise  your  political 
rights  to  legislate,  or  to  take  part  in  the  legislative  process."105 

There  is,  however,  at  least  one  significant  factor  that  suggests  that  retaliation, 
including  criminal  forms  of  retaliation,  may  be  an  increasing  risk  outside  of  the 
contexts  and  forms  in  which  it  has  previously  occurred.  That  factor  is  the 
growing  availability  of  contributor  information  over  the  Internet. 1 06  For  example, 
retaliation  against  Proposition  8  supporters  may  have  largely  been  fueled  by  the 
creation  of  websites  dedicated  to  identifying  those  supporters.  The  most  well- 
known  such  site  is  www.eightmaps.com,  which  uses  a  combination  of  the  state 
government's  contributor  database  and  Google  Maps  to  create  an  easily 
searchable  system  for  locating  and  identifying  Proposition  8  supporters. 107  While 
that  website  does  not  overtly  encourage  any  particular  use  of  this  information  or 
characterize  the  persons  identified  in  any  particular  way,  another  website  called 
"Californians  Against  Hate"  lists  particular  Proposition  8  supporters  in  its 
"Dishonor  Roll,"  including  all  donors  who  gave  $5000  or  more.108  Such  sites 
also  may  encourage  individual,  as  opposed  to  organized,  retaliation  attempts  that 
are  more  likely  to  veer  into  particularly  harmful  or  illegal  areas. 

Websites  of  this  nature  are  not  necessarily  limited  to  Proposition  8 
supporters.  Accountable  America,  an  organization  dedicated  to  opposing  right- 
wing  and  special  interest  policies,  has  an  ongoing  "Conservative  Group  Project" 
to  educate  the  public  about  right-wing  donors.109   Press  reports  state  that  this 


103.  ProtectMarriage.com,  599  F.  Supp.  2d  at  1216-17;  see  also  Plaintiffs'  Statement  of 
Undisputed  Facts,  supra  note  100. 

104.  See  ProtetctMarriage.com,  599  F.  Supp.  2d  at  1218  (noting  that  some  of  the  actions 
complained  of  by  plaintiffs  are  historic  and  lawful  means  of  voicing  dissent,  including  boycotts); 
Plaintiffs'  Statement  of  Undisputed  Facts,  supra  note  100  (providing  summaries  of  statements  by 
fifty-eight  "John  Does"  regarding  retaliation  for  their  support  of  Proposition  8,  including  picketing, 
boycotts,  and  angry  emails,  letters,  and  telephone  calls);  Troupis  Declaration,  supra  note  101 
(listing  news  stories  reporting  retaliation  against  Proposition  8  supporters,  including  reports  of 
public  protests,  picketing,  and  boycotts). 

105.  Transcript  of  Oral  Argument  at  12,  Doe  v.  Reed,  130  S.  Ct.  281 1  (2010)  (No.  09-559). 

106.  See,  e.g.,  McGeveran,  supra  note  18,  at  10-13  (describing  the  use  of  the  Internet  to 
increase  the  dissemination  of  political  contributor  data). 

1 07.  See  Prop  8  MAPS,  supra  note  57. 

108.  See  The  Californians  Against  Hate  Dishonor  Roll,  CALIFORNIANS  AGAINST  HATE, 
http://www.californiansagainsthate.com/dishonor-roll  (last  visited  Aug.  10,  2010). 

109.  See  Accountable  America,  http://www.accountableamerica.com/about  (last  visited 


20 1 0]  DISCLOSURES  ABOUT  DISCLOSURE  277 


organization  has  also  sent  letters  to  such  donors,  threatening  to  publicize  their 
financial  support  of  right-wing  causes  and  implying  that  doing  so  will  lead  to 
boycotts  and  similar  adverse  reactions  (although  conservative  activists  quoted  in 
those  stories  appeared  unconcerned).110  While  the  organization  has  not  made  a 
public  database  of  such  contributors  available,  at  least  so  far,  it  would  not  be 
difficult  for  it  to  do  so  using  existing,  publicly  available  contributor  information. 

The  ease  of  creating  such  a  database  is  evidenced  not  only  by  the  Proposition 
8  databases,  but  also  by  other  private  party  established  Internet  databases  of 
political  contributors,  such  as  the  previously  mentioned  Fundrace  2008 ' ■ 1  and  the 
newly  established  TransparencyData.com  that  combines  federal  and  state 
campaign  contribution  information.112  Other  examples  of  such  websites  include 
the  previously  mentioned  MSNBC  website  that  discloses  journalists  who  made 
federal  political  contributions  and  another  website  that  collects  data  from  state 
databases  of  political  contributions.113  Data  like  this  could  also  potentially  find 
its  way  to  websites  with  broader  foci,  such  as  the  "Unvarnished"  website  for 
posting  anonymous  reviews  of  professional  reputations.1 14  The  growth  of  social 
networking  sites  also  makes  it  easy  to  quickly  communicate  the  positions  of 
individuals  to  their  friends,  family,  and  co-workers.  While  recent  events  had  led 
to  a  focus  on  retaliation  against  supporters  of  anti-same-sex  marriage  initiatives, 
the  Internet  has  been  used  to  encourage  harassment  outside  of  the  political 
contribution  context.115  What  remains  unexplored,  however,  is  the  extent  to 
which  the  growth  of  access  to  information  through  the  Internet  will  in  fact  lead 
to  greater  incidences  of  retaliation. 

Research  on  the  second  question — whether  the  fear  of  retaliation  changes  the 
behavior  of  potential  contributors — is  almost  nonexistent.116  One  survey 
prepared  by  Dr.  Dick  M.  Carpenter  II  for  the  Institute  for  Justice  found  that  a 
significant  percentage  of  respondents  would  "think  twice  before  donating 
money"  if  their  name  and  other  information,  such  as  their  address  or  employer, 
were  released  to  the  public  as  a  result.117  The  survey  does  not  reveal,  however, 


Aug.  10,2010). 

1 1 0.  Michael  Luo,  Group  Plans  Campaign  Against  G.  O.P.  Donors,  N.  Y.  TIMES,  Aug.  8, 2008, 
atA15. 

111.  Campaign  Donors:  Fundrace  2008,  supra  note  56. 

1 12.  Transparency  Data,  http://www.transparencydata.com  (last  visited  Aug.  10,201 0). 

113.  See  Dedman,  supra  note  61 ;  Investigate  Money  in  State  Politics,  supra  note  65. 

114.  About  Unvarnished,  Unvarnished,  http://www.getunvarnished.com/page/about_ 
unvarnished  (last  visited  Aug.  10,  2010). 

115.  See,  e.g.,  Planned  Parenthood  of  the  Columbia/Williamette,  Inc.  v.  Am.  Coal,  of  Life 
Activists,  290  F.3d  1058,  1062-63  (9th  Cir.  2002)  (en  banc)  (upholding  an  injunction  against  the 
distribution,  including  over  the  Internet,  of  materials  and  personal  information  relating  to  abortion 
providers  with  a  specific  intent  to  threaten). 

116.  See  McGeveran,  supra  note  18,  at  21  (noting  the  lack  of  empirical  evidence  regarding 
whether  the  prospect  of  disclosure  deters  would-be  contributors). 

117.  Dick  M.  Carpenter  II,  Inst,  for  Justice,  Disclosure  Costs:  Unintended 
Consequences    of    Campaign    Finance    Reform    7-8    (Mar.    2007),    available    at 


278  INDIANA  LAW  REVIEW  [Vol.  44:255 


what  portion  of  the  respondents  would  affirmatively  state  that  they  would  choose 
not  to  donate,  or  donate  as  much,  given  these  disclosures;  nor  did  that  study  test 
whether  the  respondents  would  change  their  giving  patters  in  the  face  of  such 
disclosures  (as  opposed  to  saying  that  they  might).  The  study  also  did  not 
determine  to  what  extent  individuals  knew  about  the  existing  disclosure  rules  and 
made  contributions  despite  that  knowledge.  Similarly,  summaries  of  sworn 
statements  by  Proposition  8  supporters  who  faced  retaliation,  provided  in  the 
context  of  litigation  challenging  California's  contributor  disclosure  rules,  often 
failed  to  mention  whether  the  supporters  would  curtail  future  financial  support 
for  similar  measures.  If  the  summaries  did  address  this  issue,  they  mostly  said 
the  supporters  would  be  "unlikely,"  "reluctant,"  "hesitant,"  or  otherwise 
uncertain  about  providing  such  support  without  flatly  ruling  out  doing  so.118 

One  reason  to  take  this  possible  "chilling"  effect  seriously,  however,  is  the 
fact  that  people  tend  to  be  bad  at  estimating  risk. 1 19  In  particular,  when  presented 
with  a  small  sample,  people  tend  to  view  that  sample  as  highly  representative  of 
the  population  from  which  it  is  drawn,  and  similarly,  when  an  instance  or 
occurrence  can  readily  be  brought  to  mind,  it  leads  to  overestimation  of  the 
frequency  of  that  instance  or  occurrence.120  For  example,  say  that  retaliation, 
even  in  the  most  heated  situations,  consists  of  "relatively  minimal  occurrences 
of  threats,  harassments,  and  reprisals,"  as  a  federal  district  court  found  with 
respect  to  Proposition  8  supporters.121  If  the  sample  of  Proposition  8  supporters 
of  which  the  public  is  aware  consists  mostly  of  supporters  who  faced  retaliation, 
and  the  retaliation  is  memorable  in  that  it  threatened  their  livelihood  or  physical 
safety,122  then  the  public  perception  may  tend  to  be  that  many,  if  not  most, 
Proposition  8  supporters  faced  retaliation  and  threats  to  their  livelihood  or 
physical  safety.  Such  a  perception,  even  though  inaccurate,  could  lead  to  many 
potential  contributors  choosing  to  reduce  or  stop  their  contributions.  The  fact 
that  even  with  disclosure,  there  are  many  (disclosed)  contributors  does  not  fully 
answer  this  concern123  because  such  contributors  represent  a  small  portion  of  the 


http://www.ij.org/images/pdf_folder/other_pubs/DisclosureCosts.pdf;  see  also  DickM.  Carpenter 
II,  Mandatory  Disclosure  for  Ballot-Initiative  Campaigns,  13  Indep.  Rev.  567,  574-78  (2009) 
(discussing  same  survey). 

118.  See  Plaintiffs'  Statement  of  Undisputed  Facts,  supra  note  100.  See  especially  the 
summaries  of  declarations  of  John  Doe  numbers  1,  2,  8-9,  12-13,  19,  23,  27,  30,  43,  51,  53,  who 
all  mention  a  possible  effect  of  the  retaliation  they  experienced  on  their  future  financial  support  for 
similar  causes.  Id. 

119.  See  McGeveran,  supra  note  18,  at  21-23  (discussing  the  possible  chilling  effect  on 
expression). 

1 20.  See,  e.g. ,  Amos  Tversky  &  Daniel  Kahneman,  Judgment  Under  Uncertainty:  Heuristics 
and  Biases,  185  SCI.  1 124,  1 125-27  (1974). 

121.  ProtectMarriage.com  v.  Bowen,  599  F.  Supp.  2d  1197,  1216  (E.D.  Cal.  2009). 

1 22.  See  Troupis  Declaration,  supra  note  1 0 1 ,  at  2-4  (listing  news  stories  reporting  retaliation 
against  Proposition  8  supporters,  including  death  threats,  physical  violence,  threats  of  physical 
violence,  vandalism,  and  job  losses). 

123.  See  Hasen,  supra  note  5,  at  280-81  (arguing  that  the  number  of  disclosed  soft  money 


20 1 0]  DISCLOSURES  ABOUT  DISCLOSURE  279 


possible  contributors.  For  example,  the  most  successful  political  fundraising 
campaign  in  the  United  States — that  of  President  Obama — received  contributions 
from  upwards  of  three  million  donors,  but  under  one-sixth  of  those  donors  were 
at  the  relatively  modest  over  $200  disclosure  threshold.124  While  that  level  of 
donor  participation  is  impressive,  those  numbers  alone — representing  less  than 
1.5%  of  the  212  million  individuals  eligible  to  vote  in  the  2008  presidential 
election125 — do  not  necessarily  mean  that  there  is  no  chilling  effect  caused  by 
public  disclosure  of  support  for  even  a  highly  popular  candidate.  What  the  actual 
perception  is  with  respect  to  the  various  potential  types  of  contributions,  much 
less  the  effect  of  that  perception,  is  simply  not  known  at  this  time.  This  potential 
chilling  effect  was  sufficiently  real,  however,  for  the  Supreme  Court  in  Buckley 
v.  Valeo  to  assert  that  "[i]t  is  undoubtedly  true  that  public  disclosure  of 
contributions  to  candidates  and  political  parties  will  deter  some  individuals  who 
otherwise  might  contribute."126 

It  is  true  that  a  few  jurisdictions  have  laws  prohibiting  the  use  of  contributor 
data  for  retaliatory  purposes.127  More  widespread  promulgation  of  such  laws 
might  serve  to  limit  both  the  actual  and  perceived  risk  of  retaliation  to 
contributors.128  The  track  record  of  the  existing  laws  is  not  encouraging  in  this 
respect,  however,  both  because  there  appears  to  be  little  evidence  of  enforcement 
and  because  at  least  one  state  supreme  court  has  struck  down  such  a  law  as  an 
unconstitutional  restriction  on  free  speech.129  Similarly,  the  more  common  laws 


contributors  to  political  parties  demonstrates  a  lack  of  a  chilling  effect  from  disclosure). 

124.  see  anthony  j.  corradoetal.,  reform  in  an  age  of  net  worked  campaigns:  how 
to  Foster  Citizen  Participation  Through  Small  Donors  and  Volunteers  13-14  (2010), 
available  at  http://www.cfinst.org/books_reports/Reform-in-an-Age-of-Networked-Campaigns.pdf 
(observing  President  Obama's  fundraising  campaign,  in  which  only  405,000  of  over  three  million 
donors  donated  above  an  aggregate  amount  of  $200). 

125.  See  Michael  McDonald,  2008  General  Election  Turnout  Rates,  U.S.  ELECTIONS  PROJECT, 
http://elections.gmu.edu/Turnout_2008G.html  (last  updated  Oct.  6,  2010). 

126.  Buckley  v.  Valeo,  424  U.S.  1,  68  (1976);  see  also  Perry  v.  Schwarzenegger,  591  F.3d 
1147,  1163-64  (9th  Cir.)  (concluding  that  if  individuals  would  alter  their  communications  and 
reconsider  their  political  involvement  if  subject  to  disclosure,  it  would  be  sufficient  to  make  a  prima 
facie  showing  of  chilling),  cert,  dismissed,  130  S.  Ct.  2432  (2010). 

127.  See,  e.g.,  Wash.  Rev.  Code  §  42.17.010  (West,  Westlaw  through  2010  legislation) 
(providing  that  campaign  finance  and  lobbying  disclosure  provisions  "shall  be  enforced  so  as  to 
insure  that  the  information  disclosed  will  not  be  misused  for  arbitrary  and  capricious  purposes  and 
to  insure  that  all  persons  reporting  under  this  chapter  will  be  protected  from  harassment  and 
unfounded  allegations  based  on  information  they  have  freely  disclosed"). 

128.  On  the  possible  ability  of  such  laws  to  reduce  the  perceived  risk  of  retaliation  even  if  they 
failed  to  reduce  the  actual  incidence  of  retaliation,  see  generally  Amitai  Aviram,  The  Placebo  Effect 
of  Law:  Law 's  Role  in  Manipulating  Perceptions,  75  GEO.  WASH.  L.  REV.  54  (2006). 

129.  See  Fowler  v.  Neb.  Accountability  &  Disclosure  Comm'n,  330  N.W.2d  136,  141  (Neb. 
1983)  (finding  state  laws  that  prohibited  the  use  of  campaign  statements  filed  by  political 
committees  for  "other  political  activity"  and  for  "harassment"  to  be  unconstitutional  when 
addressing  a  case  where  the  campaign  statements  included  information  about  contributions  made 


280  INDIANA  LAW  REVIEW  [Vol.  44:255 


that  bar  the  use  of  contributor  data  for  commercial  use  may  effectively  foreclose 
the  mass  use  of  such  data  by  background-checking  companies;  however,  both 
types  of  laws  are  unlikely  to  foreclose  a  potential  employer  or  consumer  from 
checking  such  data  and  do  not  extend  to  non-commercial  and  First  Amendment 
protected  political  activity,  such  as  boycotts  and  picketing.130  Finally,  while  it  is 
possible  for  individuals  and  groups  to  seek  as-applied  exceptions  from  the 
disclosure  rules  based  on  actual  or  likely  harassment,  it  may  be  difficult  to 
anticipate  such  retaliation.  Additionally,  the  very  act  of  applying  for  an 
exception  may  expose  at  least  some  individuals  to  retaliation.131 

The  strength  of  the  retaliation  narrative  is  therefore  uncertain.  There  is  no 
doubt  that  in  some  contexts  private  actors  and,  perhaps  more  troubling, 
government  actors  have  used  disclosed  contributor  information  to  engage  in 
retaliatory  actions  against  contributors — ranging  from  legal  activities  such  as 
boycotts  or  employment  termination  to  criminal  activities,  including  destruction 
of  property  or  threats  of  physical  harm.  There  is  no  reliable  information, 
however,  on  the  extent  of  such  retaliation,  which  demonstrates  whether  it  extends 
beyond  the  contexts  identified  above  and  whether  the  increased  access  to 
contributor  information  through  the  Internet  is — or  will  translate  into — a 
significantly  greater  level  of  retaliatory  acts.  Similarly,  although  there  are 
anecdotal  data  (and  a  single  survey)  indicating  that  the  perceived  risk  of 
retaliation  from  disclosure  may  change  potential  contributor  behavior,  neither  the 
extent  of  that  perceived  risk  nor  the  strength  of  its  effect  on  behavior  is  known. 

III.  Recommendations 

Both  the  extent  to  which  disclosure  of  political  contributor  information  aids 
voters  in  their  ballot-box  decisions  and  the  extent  to  which  such  disclosure 
exposes  contributors  to  retaliation  and  chills  potential  contributors  are  still  in 
many  ways  open  questions.  The  existing  information  does  suggest  possible 
changes  to  the  current  disclosure  and  disclaimer  regimes  that  would  increase  the 
likelihood  of  aiding  voters — in  some  instances,  also  minimizing  the  actual  and 
perceived  risk  of  retaliation.  One  change  would  be  to  reduce  the  scope  of 
disclosure  by  significantly  raising  the  disclosure  thresholds  or  making  public 
only  certain  non-identifying  information  for  smaller  contributors.  Another 
change  would  be  to  expand  the  scope  of  disclaimers  to  facilitate  delivery  of 
information  about  major  financial  supporters  to  the  voting  public. 


by  the  committees  to  candidates). 

1 30.  See,  e.g. ,  2  U.S.C.  §  438(a)(4)  (2006)  (prohibiting  the  use  of  information  from  statements 
filed  with  the  FEC  "for  the  purpose  of  soliciting  contributions  or  for  commercial  purposes");  Me. 
Rev.  Stat.  tit.  21 -A,  §  1005  (West,  Westlaw  through  2009  legislation)  ("Information  concerning 
contributors  contained  in  campaign  finance  reports  .  .  .  may  not  be  used  for  any  commercial 
purpose. .  . .");  Minn.  Stat.  §  10A.35  (West,  Westlaw  through  2010  legislation)  ("Information  . 
. .  from  reports  and  statements  filed  with  the  [Minnesota  Campaign  Finance  and  Public  Disclosure 
Board]  may  not  be  sold  or  used  ...  for  a  commercial  purposes.  . .  ."). 

131.  See  Garrett,  supra  note  1 4,  at  242. 


20 1 0]  DISCLOSURES  ABOUT  DISCLOSURE  28 1 


The  first  change  is  based  on  the  fact  that  the  relatively  low  level  of  current 
dollar  thresholds  for  disclosure  of  a  contributor's  identifying  information  does 
not  appear  to  be  justified  by  the  government's  interest  in  informing  voters.  The 
vast  majority  of  such  specific  contributor  information  is  unlikely  to  help  voters 
because  knowing  the  identities  of  those  contributors  does  not  provide  any  useful 
cues  regarding  the  candidates  supported,  either  directly  or  through 
communications  by  independent  groups.132  At  the  same  time,  disclosure  of  such 
information  exposes  these  contributors  to  possible  retaliation,  even  if  perhaps 
relatively  rare  and  usually  not  particularly  harmful.133  There  may,  of  course,  be 
other  reasons  for  collecting  such  information,  including  aiding  enforcement  of 
contribution  limits,  identifying  geographic  or  industry  concentrations  of 
contributors,  and  facilitating  limited  disclosure  to  particularly  interested  parties 
such  as  shareholders,  members,  or  donors  for  the  group  involved  and  facilitating 
academic  research.134  The  first  reason  only  applies  when  such  limits  exist. 
However,  in  the  post-Citizens  United  world,  that  is  not  the  case  for  expenditures 
by  independent  groups,  which  are  the  subject  of  the  most  recent  disclosure 
proposals.  In  fact,  the  most  prominent  of  the  proposed  federal  legislative 
responses  to  Citizens  United  would  significantly  expand  the  scope  of  the 
expenditures  reached  by  disclosure  requirements.135  While  prohibitions  on 
certain  types  of  contributors — e.g.,  non-resident,  foreign  citizens,  and  charitable 
organizations — still  exist  in  this  context,  such  prohibited  contributors  appear  to 
be  both  relatively  rare,  and  if  they  are  giving  less  than  even  the  increased 
threshold,  they  are  unlikely  to  have  a  material  effect  on  elections.  As  for 
collecting  information  about  concentrations  of  contributors,  both  for  voter 
information  and  academic  research  purposes,  such  purposes  do  not  require  public 
disclosure  of  the  names  and  complete  addresses  of  individual  contributors. 

At  least  in  part  for  these  reasons,  several  commentators  have  suggested  only 
having  public  disclosure  of  aggregate  data  of  voters  for  all  but  the  largest 
contributors.136  Organizations  subject  to  the  disclosure  requirements  could  still 
report  individual  information  to  the  government  to  permit  government 
verification  of  the  accuracy  of  reporting,  but  the  publicly  released  information 
could  be  limited  to  aggregate  data.  One  way  to  impose  this  limit  would  be  to 
have  the  relevant  government  agency  aggregate  the  data  for  donors  below  a 


1 32.  See  supra  notes  48-72  and  accompanying  text. 

133.  See  supra  Part  II. 

134.  See  supra  notes  14-15  and  accompanying  text. 

135.  See  House  DISCLOSE  Act,  supra  note  6,  §  202(a)  (expanding  the  time  period  for 
electioneering  communications);  Senate  DISCLOSE  Act,  supra  note  6,  §  202(a)  (same);  compare 
House  DISCLOSE  Act,  supra  note  6,  §  201(a)  (revising  the  definition  of  an  independent 
expenditure)  an d  Senate  DISCLOSE  Act,  supra  note  6,  §  201(a)  (same),  with  2  U.S.C.  §  431(17) 
(current  definition  of  an  independent  expenditure). 

136.  See  Briffault,  supra  note  1 8,  at  655 ;  McGeveran,  supra  note  1 8,  at  53-54;  Noveck,  supra 
note  90,  at  1 07- 1 0;  Kathleen  M.  Sullivan,  Against  Campaign  Finance  Reform,  1 998  UTAH  L.  REV. 
311, 327;  David  Lourie,  Note,  Rethinking  Donor  Disclosure  After  the  Proposition  8  Campaign,  83 
S.  Cal.  L.  Rev.  133,  154-63  (2009). 


282  INDIANA  LAW  REVIEW  [Vol.  44:255 


certain  threshold  in  various  categories,  such  as  by  geographic  locale  or  type  of 
employer.  If  the  relevant  government  agency  lacked  or  was  seen  as  lacking  the 
willingness,  resources,  or  ability  to  do  such  aggregation,  another  option  would 
be  to  disclose  only  a  portion  of  contributor  data  (e.g.,  city  &  state,  zip  code, 
occupation,  and  perhaps  employer,  but  not  name  or  street  address)  and  leave  it 
to  private  actors  to  then  aggregate  these  data  as  they  saw  fit. 

Implicit  in  this  recommendation  is  at  least  the  suggestion  that  contributing 
to  a  political  effort  is,  for  smaller  contributions,  more  akin  to  voting  as  opposed 
to  most  forms  of  speech  that  necessarily  involve  identification  of  the  speaker.137 
Voting  is  and  has  been  for  many  years  in  the  United  States  a  private  matter,  with 
the  secret  ballot  in  place  to  prevent  undue  influence  on  the  voter.138  In  contrast, 
many,  although  not  all,  forms  of  political  speech  are  necessarily  public,  and  any 
(legal)  pushback  the  speaker  receives  is  usually  seen  as  simply  the  price  one  must 
pay  to  be  politically  involved.139  This  is  not  the  case  in  every  instance,  as  the 
Mclntyre  decision  protecting  anonymous  leafleting  demonstrates.140 

Space  limitations  prohibit  an  in-depth  analysis  of  this  issue,  but  there  is  at 
least  one  reason  that  suggests  smaller  contributions  are  more  akin  to  voting  than 
other  forms  of  political  expression  for  purposes  of  disclosure.  Like  voting,  our 
political  system  depends  on  citizen  participation  through  financing  election 
campaigns  in  order  to  function.  Other  campaign  financing  systems,  including 
public  financing,  could  be  implemented;  under  our  current  system,  however, 
candidates,  political  parties,  and  independent  groups  rely  primarily  on  the 
financial  support  of  others  to  fund  their  political  messages.  If  disclosure  places 
such  funding  at  risk — as  it  does,  at  least  in  theory  and  perhaps  in  some  cases,  in 
fact — it  must  be  justified  by  another  concern.  In  the  case  of  smaller 
contributions,  the  most  highlighted  concern  of  informing  voters  is  not  usually 
salient  for  the  reasons  already  discussed  (nor  is  combating  corruption  or  the 
appearance  of  corruption  likely  relevant).141 

These  considerations  therefore  suggest  that  current  contributor  disclosure 
thresholds  should  be  significantly  increased  or  that  the  information  made  publicly 


137.  See  Kathleen  M.  Sullivan,  Political  Money  and  Freedom  of  Speech,  30  U.C.  DAVIS  L. 
Rev.  663,  672-73  (1997)  (discussing  whether  political  contributions  and  expenditures  are  more 
akin  to  voting  or  political  speech).  This  point  was  noted  by  Heather  Gerken  during  the  symposium 
of  which  this  Article  is  a  part.  See  Heather  K.  Gerken,  Keynote  Address:  What  Election  Law  Has 
to  Say  to  Constitutional  Law,  44  IND.  L.  REV.  7  (2010). 

138.  See  generally  Allison  R.  Hayward,  Bentham  &  Ballots:  Tradeoffs  Between  Secrecy  and 
Accountability  in  How  We  Vote  7- 1 7  (George  Mason  Law  &  Economics  Research  Paper  No.  09-42, 
2009),  available  at  http://papers.ssrn. com/sol3/papers.crm?abstract_id=  1462942  (discussing  the 
debates  in  England  and  the  United  States  surrounding  the  eventual  adoption  of  the  secret  ballot). 

139.  See  Transcript  of  Oral  Argument,  supra  note  105,  at  12. 

140.  Mclntyre  v.  Ohio  Elections  Comm'n,  514  U.S.  334, 341-42  (1995)  (recognizing  that  the 
decision  to  speak  anonymously  is  protected  by  the  First  Amendment  regardless  of  its  motivation, 
which  may  include  "fear  of  economic  or  official  retaliation,  by  concern  about  social  ostracism,  or 
merely  by  a  desire  to  preserve  as  much  of  one's  privacy  as  possible"). 

141.  See  supra  note  1 8  and  accompanying  text. 


20 1 0]  DISCLOSURES  ABOUT  DISCLOSURE  283 


available  should  be  limited,  at  least  in  contexts  where  contribution  limits  do  not 
apply.  As  for  concerns  relating  to  corruption  or  the  perception  of  corruption,  to 
the  extent  they  are  justified,  it  is  the  higher  dollar  amount  contributors  that  raise 
such  concerns,  not  the  $200  or  even  $1000  contributors  in  most  instances.  In 
some  circumstances,  however,  lower  dollar  threshold  may  be  justified  for  lower- 
cost  elections,  such  as  school  boards  and  town  councils.  As  Elizabeth  Garrett  has 
said  in  her  commentary  on  McConnell,  retaliation  concerns  "oblige  drafters  to 
tailor  disclosure  statutes  narrowly  to  reveal  only  the  information  that  promotes 
voter  competence  and  to  provide  greater  protection  for  individuals  than  for 
groups."142  For  the  reasons  previously  discussed,  disclosing  identifying 
information  for  smaller  contributors  not  only  does  not  promote  voter  competence, 
but  it  may  also  expose  such  contributors  to  retaliation. 

Second,  the  existing  disclaimer  regimes  do  appear  to  be  justified  by  the 
government's  interest  in  informing  voters,  but  that  interest  would  be  better  served 
if  those  regimes  were  expanded  and  enhanced.143  The  main  flaw  in  the  existing 
system  is  the  ability  to  create  misleadingly  named  organizations  that  hide  the  true 
financial  supporters  behind  a  particular  communication. 144  One  way  to  overcome 
this  weakness  would  be  to  require  the  disclaimers  to  include  the  largest  financial 
supporters  of  the  organization  paying  for  the  communications.145  The  most 
prominent  of  the  proposed  federal  legislative  responses  to  Citizens  United  do  in 
fact  include  a  requirement  to  disclose  the  five  largest  financial  supporters,  along 
with  additional  "stand  by  your  ad"  requirements.  These  would  require  the 
highest  ranking  official  of  the  organization  paying  for  the  communication  to 
personally  appear  in  the  ad — as  well  as,  in  some  cases,  the  largest  funder  of  the 
ad.146  Rules  to  prevent  layers  of  organizations  from  hiding  the  ultimate  financial 
supporters,  such  as  those  already  in  place  under  the  disclosure  regime,  could  be 
used  to  ensure  that  the  actual  top  contributions  are  included  in  the  disclaimer.147 

For  individuals  who  pay  for  political  communications,  a  modicum  of  more 
information,  such  as  the  individual's  employer  and  position  with  the  employer, 
might  enhance  the  usefulness  of  the  disclaimer.  For  example,  when  Don 
Blankenship  spent  over  $500,000  supporting  the  election  of  Brent  Benjamin  to 
the  West  Virginia  Supreme  Court,  it  might  have  helped  to  inform  voters  in  a 
disclaimer  on  those  communications  that  Blankenship  was  the  chairman,  chief 


142.  Garrett,  supra  note  14,  at  242. 

1 43 .  See  Kang,  supra  note  20,  at  1 1 7 1 , 1 1 79-8 1  (suggesting  disclaimers  in  the  context  of  direct 
democracy). 

144.  See  supra  notes  77-78  and  accompanying  text. 

145.  See  Kang,  supra  note  20,  at  1 1 80-8 1 . 

146.  See  House  DISCLOSE  Act,  supra  note  6,  §  214(b)(2);  Senate  DISCLOSE  Act,  supra 
note  6,  §  2 1 4(b)(2);  see  also  Ronald  Dworkin,  The  Decision  That  Threatens  Democracy,  N.  Y.  REV. 
OF  BOOKS,  May  13,  2010,  at  §  4,  available  at  http://www.nybooks.com/articles/archives/ 
2010/may/13/decision-threatens-democracy  (urging  Congress  to  require  identification  of  major 
corporate  contributors  of  organizations  that  pay  for  election-related  television  advertisements  in 
those  advertisements). 

147.  See,  e.g.,  2  U.S.C.  §  441d  (2006);  47  C.F.R.  §  73.1212(e)  (2009). 


284  INDIANA  LAW  REVIEW  [Vol.  44:255 


executive  officer,  and  president  of  the  A.T.  Massey  Coal  Company.148  Similarly, 
it  might  have  helped  voters  to  know  that  Blankenship  was  one  of  the  top 
contributors  to  "And  For  The  Sake  Of  The  Kids,"  which  also  supported  the 
candidate  and  opposed  his  opponent,  at  least  if  that  information  was 
communicated  to  them  at  the  same  time  as  this  group's  political  messages.149 
While  such  information  was  available  in  required  state  campaign  finance  filings, 
West  Virginia  law  apparently  did  not  require  it  to  be  included  in  disclaimers  that 
were  part  of  the  communications  themselves. 

Conclusion 

More  research  certainly  needs  to  be  done  regarding  informing  voters  and 
retaliation  with  respect  to  public  disclosure  of  contributor  information.  What  we 
do  know  does  provide  some  initial  guidance  for  shaping  the  disclosure  rules  for 
political  contributors  in  the  post-Citizens  United  world;  however,  guidance  is 
needed  that  goes  beyond  the  relatively  simple  voter  information  and  retaliation 
narratives  found  in  that  decision's  opinions.  Since  helping  voters  make  better 
ballot-box  decisions  and  limiting  retaliation  to  encourage  greater  political 
participation  are  both  desirable,  disclosure  and  disclaimer  rules  that  appear  likely 
to  enhance  both  of  these  goals  should  become  part  of  the  existing  and  proposed 
disclosure  regimes. 


148.  See  Caperton  v.  A.T.  Massey  Coal  Co.,  129  S.  Ct.  2252,  2257  (2009). 

149.  See  id. 


What  Changes  Do  Recent  Supreme  Court  Decisions 

Require  for  Federal  Campaign  Finance 

Statutes  and  Regulations? 


Allison  R.  Hayward 


Introduction 

United  States  campaign  finance  law  is  riding  a  wave  of  constitutionally 
driven  statutory  change.  After  almost  two  decades  of  relative  deference  to 
Congress's  judgment,  the  Supreme  Court  has  revitalized  its  scrutiny  of  campaign 
regulations.  While  the  Citizens  United  v.  FECX  opinion  is  the  most  prominent  and 
controversial  evidence  of  this  shift,  it  does  not  stand  alone. 

The  Court's  decisions  have  extended  broad  First  Amendment  protection  to 
campaign  activity.  But  the  practice  of  campaign  finance  is  one  not  of  broad 
sweeping  statements  but  of  excruciating  detail.  Looking  forward,  academics  and 
practitioners  need  to  sift  through  statutes  and  begin  the  task  of  separating  the 
defensible  rules  from  the  obsolete  ones.2  It  is  hard  to  appreciate  how  much  the 
rules  of  campaign  finance  must  change  to  accommodate  recent  Court  decisions, 
especially  if  the  law  is  to  aspire  to  be  coherent. 

This  essay  is  a  first  step  in  that  process.  It  surveys  the  statutory  provisions 
of  the  Federal  Election  Campaign  Act  (FECA)  and  selected  state  laws  and 
identifies  those  that  are  constitutionally  suspect  in  light  of  recent  decisions.  It 
follows  a  litany  familiar  to  campaign  practitioners  by  first  considering  what  may 
have  changed  in  the  doctrine  of  campaign  finance  limits.  It  then  moves  on  to 
evaluate  the  prohibitions  in  federal  campaign  finance  law,  including  the  second 
order  restrictions  on  corporations  and  labor  union  "facilitation."3  Finally,  it 
addresses  reporting  requirements  and  other  disclosures  mandated  in  the  statute. 

I.  Limits 

Campaign  finance  limits  come  in  two  basic  forms.  The  first,  spending  limits, 
have  been  constitutionally  restricted  to  "voluntary"  programs  since  Buckley  v. 
Valeo.4  The  second,  contribution  limits  to  candidates  and  political  committees, 
have  generally  passed  constitutional  scrutiny,5  although  present  appellate  court 
decisions,  if  upheld,  may  change  the  landscape  in  interesting  ways.6  A  hybrid  of 
these  limits,  the  aggregate  limit  on  an  individual's  contributions  to  federal 


*  Ms.  Hayward  is  Vice  President  for  Policy  at  the  Center  for  Competitive  Politics  and  an 
election  law  expert  and  practitioner  in  Washington,  D.C.  and  California.  From  July  2006  to  May 
2010,  Hayward  was  Assistant  Professor  of  Law  at  George  Mason  University  School  of  Law. 

1.  130S.  Ct.  876(2010). 

2.  Federal  campaign  finance  law  is  codified  at  2  U.S.C.  §§  43 1-57  (2006  &  Supp.  2009). 

3.  See  11  C.F.R.  §  114.2(f)(1)  (2010). 

4.  424  U.S.  1,  18-21(1976). 

5.  See  discussion  infra  Part  LB. 

6.  See  Buckley,  424  U.S.  at  24;  SpeechNow.org  v.  FEC,  599  F.3d  686  (D.C.  Cir.  2010). 


286  INDIANA  LAW  REVIEW  [Vol.  44:285 


candidates  and  committees,  may  have  an  uncertain  future.7 

A.  Spending  Limits 

At  present,  federal  campaign  finance  law  limits  the  total  expenditures  of 
presidential  campaigns  that  opt  into  the  voluntary  general  election  campaign 
finance  subsidy  or  the  matching  funds  available  for  presidential  primary 
candidates.8  This  program  complies  with  the  Court's  Buckley  v.  Valeo  holding 
that  mandatory  spending  limits  are  unconstitutional,  but  voluntary  spending  limits 
coupled  with  incentives  are  constitutional.9  The  recent  Randall  v.  Sorrell  case 
gave  the  Court  an  opportunity  to  reconsider  this  position,  but  the  Court  held 
firm.10  These  incentives  cannot  be  so  generous  as  to  make  the  "choice"  between 
self-funding  and  tax  funding  elusive  and  the  program  an  involuntary  one  in 
reality. 

In  2008,  the  Supreme  Court  brought  into  play  another  factor  to  consider  in 
challenging  these  programs  in  Davis  v.  FEC.U  The  Court  rejected  a  federal  rule 
that  would  have  allowed  candidates  facing  wealthy  opponents  to  raise  money  at 
higher  contribution  rates. 12  While  this  decision  did  not  implicate  federal  subsidies 
of  campaigns,  many  state  programs  provided  additional  resources  to  candidates 
in  similar  situations.13 

The  Court  in  Davis  rejected  any  claim  that  there  was  a  permissible 
governmental  interest  in  "leveling"  up  campaign  funds.14  It  observed  that  no 
precedent  supported  a  scheme  that  gave  candidates  running  for  the  same  office 
in  the  same  election  different  contribution  limits.15  The  effect  of  this  law  was  to 
repress  the  speech  of  the  self-funding  candidate  because  it  would  "imposfe] 
different  contribution  and  coordinated  party  expenditure  limits  on  candidates 
vying  for  the  same  seat."16  As  a  result,  tax  financing  programs  that  provide 
additional  tax  funding  for  candidates  running  against  wealthy  self-funders  may 
be  vulnerable  to  a  similar  challenge.17 


7.  See,  e.g.,  2  U.S.C.  §  441a(a)(3)  (2006),  invalidatedinpartbySpeechNow.org,  599  F.3d 
at  696. 

8.  See  26  U.S.C.  §  9004  (2006  &  Supp.  2008). 

9.  Buckley,  424  U.S.  at  19-21. 

10.  548  U.S.  230,  243-44  (2006)  (finding  neither  of  respondents'  arguments  to  overturn  or 
limit  Buckley's  scope  persuasive). 

11.  128S.  Ct.  2759(2008). 

12.  Id.  at  2111-1  At  (holding  unconstitutional  the  so-called  "Millionaire's  Amendment" 
codified  at  2  U.S.C.  §  44 la- 1(a)(1)). 

13.  See  N.C.  Right  to  Life  Comm.  Fund  for  Indep.  Political  Expenditures  v.  Leake,  524  F.3d 
427,  432  (4th  Cir.  2008);  Day  v.  Holahan,  34  F.3d  1356,  1359  (8th  Cir.  1994). 

14.  Davis,  128  S.  Ct.  at  2773-74. 

15.  Id.  at  2114. 

16.  Id. 

17.  See  McComish  v.  Brewer,  No.  08-1550,  2010  WL  2292213  (D.  Ariz.  Jan.  20,  2010), 
rev'd,  McComish  v.  Bennett,  61 1  F. 3d  510  (9th  Cir.  2010).  As  of  this  writing,  the  Supreme  Court 


2010]  U.S.  CAMPAIGN  FINANCE  LAW  287 


B.  Contribution  Limits 

The  Davis  v.  FEC  decision,  while  presenting  potential  implications  for  certain 
tax  funding  programs,  is  at  bottom  a  contribution  limit  case.  It  stands  for  the 
intuitively  appealing  proposition  that  the  government's  restrictions  on 
contributions  must  be  evenhanded  among  candidates  for  the  same  office.  The 
Court  entered  new  constitutional  territory  in  2006  when  it  analyzed  a  state 
government's  power  to  limit  the  size  of  campaign  contributions  in  Randall  v. 
Sorrel 7.18 

In  Randall,  the  Court  evaluated  Vermont's  expenditure  and  contribution  limit 
laws.  As  noted  before,  mandatory  expenditure  limits  fail  under  modern 
constitutional  doctrine.  Contribution  limits,  however,  have  generally  passed 
constitutional  scrutiny  because  a  contribution  can  resemble  a  gift  or  gratuity  to 
a  candidate  (or  his  party)  that  might  be  a  bribe,  extortion  payment,  or  might  at 
least  appear  corruptive.19 

In  earlier  challenges  to  contribution  limits,  the  Court  had  been  unwilling  to 
evaluate  the  level  of  the  limit,  leaving  that  task  to  the  discretion  of  Congress  or 
state  legislatures.  But  in  Randall,  Justice  Breyer's  plurality  opinion  entered  this 
uncharted  territory  and  concluded  that  the  Vermont  scheme  was 
unconstitutionally  restrictive.20  Breyer  observed  that  the  law  was  quite  a  bit  more 
restrictive  than  similar  laws  found  in  any  other  jurisdiction.21  His  method  for 
drawing  that  conclusion  involved  a  number  of  steps  and  may  not  be  readily 
applicable  to  other  regulatory  cases.22  Moreover,  a  majority  of  the  Court 
expressed  readiness  to  abandon  Buckley's  contribution-expenditure  dichotomy, 
but  they  were  divided  on  whether  that  would  mean  treating  contributions  more 
generously  or  treating  expenditures  more  restrictively.23  Therefore,  while  Randall 
demonstrates  that  the  Court  will  rule  against  contribution  limits  in  extreme  cases, 
it  may  not  mean  much  more  than  that.24 


has  stayed  the  appellate  court's  decision  pending  writ  review.  See  Lyle  Denniston,  Elections 
Subsidies  Blocked,  SCOTUSblog  (June  8, 20 1 0, 1 0:26  AM),  http://www.scotusblog.com/20 1 0/06/ 
election-subsidies-blocked/. 

18.  548  U.S.  230  (2006). 

19.  Id.  at  246-48. 

20.  Mat 261-63. 

21.  Id.  at  250-51. 

22.  See  id.  at  250-52. 

23.  Justice  Alito  wrote  separately  in  Randall,  suggesting  a  future  re-thinking  of  Buckley.  Id. 
at  263-64.  Justice  Kennedy,  concerned  about  the  direction  of  the  Court  in  campaign  finance, 
concurred  in  the  judgment  only.  Id.  at  264-65.  Justices  Thomas  and  Scalia  attacked  the  Buckley 
dichotomy  outright.  Id.  at  266.  Finally,  Justice  Stevens  advocated  overruling  Buckley' s  protection 
of  expenditures.  Id.  at  274. 

24.  As  of  this  writing,  two  appellate  decisions  yet  to  reach  the  Court  could  further  clarify  the 
Court's  contribution  limit  doctrine.  See  SpeechNow.org  v.  FEC,  599  F.3d  686  (D.C.  Cir.  2010) 
(rejecting  limits  on  committees  that  make  only  independent  expenditures);  RNC  v.  FEC,  No.  08- 


288  INDIANA  LAW  REVIEW  [Vol.  44:285 


Given  the  Court's  recent  decisions  related  to  contribution  and  expenditure 
limits,  it  appears  safe  to  conclude  that  expenditure  limit  requirements  remain 
unconstitutional.  It  would  be  difficult  to  imagine  an  expenditure  limit  that  would 
survive  strict  scrutiny  after  Randall.  But  where  does  this  leave  the  Court's 
modest  deference  since  Buckley  toward  legislative  judgments  regarding 
contribution  limits?  Will  the  Court  extend  the  close  examination  of  limits  in 
Randall  to  more  "typical"  state  laws?  If  a  majority  of  the  Court  moved  beyond 
the  "typicality"  aspects  of  Justice  Breyer's  test,  would  it  find  an  "important 
interest"  sustaining  the  federal  $2400  per  candidate  per  election  individual 
contribution  limit?25  What  would  this  "important  interest"  be?  Would  the  Court 
be  willing  to  revisit  its  precedent  affirming  these  limits  and  demand  a  more 
specific  showing  that  limits  were  calibrated  to  address  real  corruption?26  Would 
the  Court  be  willing  to  revise  constitutional  doctrine,  subject  these  limits  to  strict 
scrutiny,  and  find  them  unconstitutional?27 

More  likely  would  be  a  challenge  to  the  $5000  annual  contribution  limit  to 
federal  political  committees.28  Two  characteristics  make  this  limit  more 
vulnerable.  First,  unlike  other  federal  limits,  it  is  not  adjusted  for  inflation.29  As 
a  consequence,  although  the  political  action  committee  (PAC)  limit  was  originally 
meant  to  be  more  generous  to  committees  than  to  candidates,  the  indexed 
candidate  limit  will  in  fairly  short  time  overtake  the  committee  limit.30 

Second,  not  only  is  the  $5000  limit  not  indexed,  but  it  was  first  set  by 
Congress  in  1940.31  According  to  the  Bureau  of  Labor  Statistics,  $5000  in  1940 
had  the  purchasing  power  of  over  $77,000  in  20 10.32  This  limit  is  not  calibrated 
to  any  current  threat  or  notion  of  corruption.  Even  if  $5000  was  not  arbitrary  in 


1953,  2010  WL  1 140721  (D.D.C.  Mar.  26,  2010)  (applying  limits  to  party  committees). 

25.  See  2  U.S.C.  §  441a(a)(l)(A)  (2006);  id.  §  441a(c). 

26.  Contra  Nixon  v.  Shrink  Mo.  Gov't  PAC,  528  U.S.  377,  387-88  (2000). 

27.  See,  e.g.,  Nixon,  161  F.3d.  519,  521-22  (8th  Cir.  1998),  rev 'd,  528  U.S.  377  (2000). 

28.  Groups  with  federal  and  nonfederal  accounts  can  raise  unlimited  sums  into  their  soft 
money  accounts,  and  an  FEC  attempt  to  thwart  their  spending  through  allocation  requirements  has 
been  found  unconstitutional  by  an  appellate  court.  See  Emily's  List  v.  FEC,  581  F.3d  1,18  (D.C. 
Cir.  2009). 

29.  Vermont's  failure  to  adjust  certain  limits  for  inflation  was  one  of  the  many  factors 
catching  Justice  Breyer's  attention  in  his  opinion  in  Randall.  See  Randall  v.  Sorrell,  548  U.S.  230, 
238-40  (2006). 

30.  This  is  especially  true  when,  as  recent  appellate  decisions  observe,  such  committees  are 
not  closely  aligned  with  members,  as  contrasted  with  political  parties.  See  Emily 's  List,  581  F.3d 
at  13. 

31.  See  Allison  R.  Hayward,  Revisiting  the  Fable  of  Reform,  45  Harv.  J.  ON  LEGIS.  42 1 ,  443- 
47  (2008).  Legislative  history  indicates  that  the  $5000  contribution  limit  was  meant  as  a  "poison 
pill"  to  defeat  the  bill.  Id.  at  444. 

32.  Overview  of  BLS  Statistics  on  Inflation  and  Prices,  BUREAU  OF  Labor  Statistics, 
http://www.bls.gov/bls/inflation.htm  (follow  "CPI  Inflation  calculator"  hyperlink,  input  "5000"  and 
year  "1940,"  and  press  "calculate")  (last  modified  June  4,  2010). 


2010]  U.S.  CAMPAIGN  FINANCE  LAW  289 


1 940,  it  is  impossible  today  to  make  that  argument.33 

As  an  aside,  reexamining  these  contribution  limits  would  be  difficult 
politically.  Even  if  the  Court  found  the  candidate  and  committee  limits 
unacceptable,  members  of  Congress  would  be  in  a  position  of  advocating  higher 
limits  for  themselves,  for  the  PACs  that  in  large  measure  give  to  incumbents,  and 
for  the  PACs  they  control,  colloquially  known  as  "leadership  PACs." 

Leadership  PACs  occupy  a  puzzling  place  in  the  law.  The  1974  statute  did 
not  provide  for  them;  instead,  subsequent  regulatory  interpretations  permitted 
them  to  develop.34  Notwithstanding  the  fact  that  both  the  member's  campaign 
committee  and  his  leadership  PAC  are  under  his  control,  the  two  committees  are 
not  deemed  legally  affiliated  and  thus  can  raise  money  from  the  same  donors.35 
There  would  not  seem  to  be  any  constitutional  impediment  preventing  Congress 
from  limiting  a  candidate  or  officeholder  to  one  committee.  Accordingly, 
Congress  could  respond  by  raising  committee  limits,  but  abolishing  leadership 
PACs. 

Another  limit  that  may  be  vulnerable  to  a  constitutional  challenge  is  the 
hybrid  contribution-expenditure  limit  imposed  on  donors.  Federal  law  has 
imposed  an  aggregate  limit  on  contributions  since  the  1974  FECA  amendments.36 
That  $25,000  limit  was  upheld  in  Buckley,  and  the  Court  noted  there  that  it  had 
"not  been  separately  addressed  at  length  by  the  parties."37  The  Court  also 
reasoned  that  this  limit  prevented  circumvention  of  the  contribution  limits,  which 
might  otherwise  occur  when  donors  give  to  PACs  or  parties  likely  to  support  their 
candidate.38 

In  the  Bipartisan  Campaign  Reform  Act  of  2002  (BCRA),  Congress  raised 
the  aggregate  limit  and  indexed  it  for  inflation.39  Presently,  the  overall  limit  is 
$115,500,  out  of  which  up  to  $45,600  can  be  contributions  to  candidate 
committees.  The  remaining  $69,900  can  be  contributions  to  any  other 
committees,  out  of  which  no  more  than  $45,600  may  be  given  to  committees  that 
are  not  national  party  committees.40 


33.  The  D.C.  Circuit  in  Emily 's  List  recently  found  the  FEC  allocation  requirement  onerous 
precisely  because  of  the  low  $5000  limit.  Emily's  List,  581  F.3d  at  21. 

34.  See  Leadership  PACs,  68  Fed.  Reg.  67,013  (Dec.  1,  2003)  (addressing  leadership  PAC 
rulemaking  with  summary  of  legal  development);  Marian  Currinder,  Money  in  the  House  24- 
31  (2009)  (discussing  background  of  leadership  PACs). 

35.  This  relationship  was  clarified  and  made  explicit  in  2003  rulemaking.  See  68  Fed.  Reg. 
67,013,67,017-18. 

36.  Buckley  v.  Valeo,  424  U.S.  1,  19  (1976). 

37.  Id.  at  38. 

38.  Id.  The  Court  added,  unhelpfully,  "[t]he  limited,  additional  restriction  on  associational 
freedom  imposed  by  the  overall  ceiling  is  thus  no  more  than  a  corollary  of  the  basic  individual 
contribution  limitation  that  we  have  found  to  be  constitutionally  valid."  Id. 

39.  See  2  U.S.C.  §  441a(a)(3)  (2006);  1 1  C.F.R.  §  1 10.5  (2010). 

40.  Fed.  Election  Comm'n,  Contribution  Limits  for  2009- 1 0,  at  1 ,  http://www.fec.gov/ 
info/contriblimits0910.pdf  (last  visited  Oct.  7,  2010)  (stating  FEC  limits  for  2009-10);  see  also  2 
U.S.C.  §  441a(a)(3)  (base  levels);  id.  §  441a(c)  (indexing). 


290  INDIANA  LAW  REVIEW  [Vol.  44:285 


This  restriction  is  both  a  contribution  limit,  in  that  it  limits  "contributions," 
and  an  overall  expenditure  limit  restricting  the  amount  of  federal  "hard"  money 
an  individual  can  give.  The  anticircumvention  rationale  in  Buckley  does  not 
make  much  sense,  especially  because  the  FEC  can  deem  committees  affiliated 
and  thus  address  the  circumvention  that  might  follow  from  committee 
proliferation.41  Also,  contributions  to  committees  earmarked  to  a  candidate  are 
deemed  contributions  to  that  candidate.42  Donors  who  want  to  give  more  in 
politics  may  still  contribute  unlimited  sums  to  non-committee  political 
organizations  (colloquially  known  as  "527s"43),  social  welfare  organizations 
exempt  under  Section  501(c)(4)  of  the  Internal  Revenue  Code,  and  charities.44 
These  vehicles  are  less  direct,  transparent,  and  accountable  than  political 
committees.  It  seems  to  be  bad  policy  to  drive  political  financial  activity  there. 

Moreover,  it  is  hard  to  justify  the  governmental  interest  in  capping  the  overall 
amount  of  money  an  individual  donor  may  contribute  without  similarly  restricting 
PACs  or  other  entities,  such  as  Native  American  tribes.  In  short,  the  restriction 
has  always  made  little  sense,  but  in  an  era  where  the  Court  seems  more  willing 
to  take  a  close  look  at  campaign  restrictions,  the  biennial  limit's  days  may  be 
numbered. 

To  summarize,  the  federal  statute's  present  limits  are  not  directly  contradicted 
in  any  Court  decisions.  But  it  would  not  take  much  of  a  stretch  to  change  that. 
The  Court's  attitude  toward  constitutional  doctrine  may  mean  that  the  PAC  limit 
and  the  biennial  individual  limit  would  not  withstand  a  challenge. 

II.  Prohibitions 

The  FECA's  prohibitions  include  corporate  and  labor  contribution  and 
expenditure  bans,45  foreign  national  contribution  and  expenditure  bans,46  and 
similar  bans  on  government  contractors.47  Citizens  United  held  the  corporate 
expenditure  ban  (and  by  implicit  extension,  the  labor  ban)  unconstitutional.  The 
Court  specifically  stated  that  this  holding  would  not  threaten  the  contribution 
prohibitions  or  the  foreign  national  expenditure  and  contribution  ban.48 

Citizens  United,  and  the  FEC  v.  Wisconsin  Right  to  Life  decision  that 
preceded  it,  also  articulated  a  relatively  clear  content  requirement  for  spending 
to  be  treated  as  an  "expenditure"  or  an  "electioneering  communication."  An 
"expenditure"  must  contain  express  advocacy  of  the  election  or  defeat  of  a  clearly 


41.  2U.S.C.  §441a(a)(5). 

42.  Id.  §  441a(a)(8);  1 1  C.F.R.  §  1 10.6  (2010). 

43.  Lauren  Daniel,  Note  and  Comment,  527s  in  a  Post-Swift  Boat  Era:  The  Current  and 
Future  Role  of  Issue  Advocacy  Groups  in  Presidential  Elections,  5  Nw.  J.L.  &  Soc.  Pol'  Y  1 49, 1 50 
(2010). 

44.  Id.  atl58n.72. 

45.  2U.S.C.  §441b. 

46.  Id.  §441e. 

47.  Id.  §441c. 

48.  Citizens  United  v.  FEC,  130  S.  Ct.  876,  91 1  (2010). 


2010]  U.S.  CAMPAIGN  FINANCE  LAW  291 


identified  candidate,  and  an  "electioneering  communication"  must  be  the 
"functional  equivalent"  of  express  advocacy.49 

Although  Citizens  United  held  unconstitutional  the  ban  on  corporate 
expenditures  and  electioneering  communications,  these  definitions  remain 
important.  A  "coordinated"  expenditure  or  electioneering  communication 
remains  subject  to  the  same  limits,  prohibitions,  and  reporting  requirements  as 
contributions.50  In  short,  a  corporation  or  union  that  coordinates  an  expenditure 
of  express  advocacy  or  its  functional  equivalent  with  a  candidate  will  violate 
federal  law. 

Thus,  the  definition  of  "coordination"  is  extremely  important,  and  it  remains 
hotly  debated.51  The  Court's  recent  precedents  do  not  address  coordination 
specifically,  but  one  can  predict  that  a  coordination  rule  that  represses  corporate 
or  labor  expenditures  will  be  scrutinized  closely  to  determine  whether  Congress 
or  the  FEC  has  unduly  burdened  constitutionally  protected  speech. 

In  other  ways,  the  regulatory  regime  goes  far  beyond  the  statutory 
expenditure  ban.  Part  114  of  Title  11  of  the  Code  of  Federal  Regulations  is 
devoted  entirely  to  restrictions  on  corporate  and  labor  activity,  deriving  its 
authority  in  part  on  the  expenditure  ban  found  unconstitutional  in  Citizens 
United.52  These  regulations,  for  instance,  dictate  to  whom  a  corporation  may 
communicate  about  politics  within  the  corporation,  or  for  a  union,  within  its 
membership.  After  Citizens  United,  these  restrictions  are  obsolete  and  will 
require  considerable  administrative  reworking. 53 

A.  Solicitations 
Less  clear  is  the  constitutional  status  of  the  restrictions  which  donor 


49.  Id.  at  889;  FEC  v.  Wis.  Right  to  Life,  551  U.S.  449,  456-57  (2007). 

50.  See  2  U.S.C.  §  44 1  a(a)(7)(B)  (treating  expenditures  that  are  coordinated  with  a  candidate 
as  contributions  to  the  candidate's  campaign  and  thus  subject  to  FECA's  limits  on  such 
contributions);  11  C.F.R.  §  109.21  (2010)  (defining  coordinated  communication). 

51.  See  Shays  v.  FEC,  528  F.3d  914,  919-24  (D.C.  Cir.  2008)  (rejecting  the  FEC's 
coordination  rule  for  the  second  time);  Shays  v.  FEC,  414  F.3d  76, 112  (D.C.  Cir.  2005)  (rejecting 
the  FEC's  coordination  rule  for  the  first  time);  Coordinated  Communications,  7 1  Fed.  Reg.  33,190, 
33,193  (June  8,  2006)  (discussing  "coordinated"  activities). 

52.  See,  e.g.,  11  C.F.R.  §  114.2  (2010)  (prohibiting  contributions,  expenditures,  and 
electioneering  communications);  id.  §  114.3  (disbursing  communications  to  restricted  class  in 
connection  with  a  federal  election);  id.  §  1 14.9  (using  corporate  or  labor  organization  facilities.); 
id.  §  114.14  (restricting  the  use  of  corporate  and  labor  organization  funds  for  electioneering 
communications). 

53.  As  of  this  writing,  the  FEC  has  received  a  petition  for  rulemaking  along  these  lines  from 
the  James  Madison  Center  for  Free  Speech  and  has  published  a  Supplemental  Notice  of  Proposed 
Rulemaking  (NPRM)  on  Coordinated  Communications  to  have  commenters  address  the  impact  of 
Citizens  United  on  that  rulemaking.  Myles  Martin,  Supplemental  NPRM  on  Coordinated 
Communications,  36  FEC  RECORD  7  (Mar.  2010),  available  at  http://www.fec.gov/pdf/ 
record/20 10/marl0.pdf. 


292  INDIANA  LAW  REVIEW  [Vol.  44:285 


corporations  can  solicit  for  contributions,  either  for  a  political  committee  or  for 
a  candidate.  Presently,  a  corporation  using  its  general  treasury  may  solicit  its 
executive  and  administrative  personnel,  shareholders,  and  the  families  of  these 
individuals  for  PAC  contributions.54  This  is  in  contrast  to  a  nonconnected 
political  committee,  which  may  solicit  any  potential  donor  but  must  pay 
solicitation  costs  from  PAC  funds.  In  its  1982  FEC  v.  National  Right  to  Work 
Committee  decision,  the  Court  upheld  solicitation  restrictions  against  a  claim  by 
the  National  Right  to  Work  Committee  that  it  could  solicit  a  broad  array  of 
potential  donors  for  its  PAC  by  deeming  the  donors  "members."55 

Still,  solicitation  is  a  form  of  political  speech.  If  corporate  independent 
expenditures  cannot  be  limited,  it  is  hard  to  justify  limiting  corporate  independent 
solicitations.  Some  corporate  PACs  might  welcome  contributions  and 
participation  from  a  wider  array  of  employees,  vendors,  subcontractors,  investors 
who  are  not  shareholders,  and  other  people  who  may  share  the  views  and 
concerns  of  the  company  but  who  presently  cannot  be  solicited. 

Importantly,  these  regulations  also  exempt  coordinated  communications  to 
the  restricted  class  from  being  treated  as  contributions.56  Because  the  Court  in 
Citizens  United  reaffirmed  the  coordinated  contribution  ban,  the  restriction  will 
likely  carry  forward.  Thus,  if  a  PAC  were  to  win  the  argument  that  Citizens 
United  protected  its  corporate-funded  solicitation  of  any  donor,  it  would  not  be 
able  to  coordinate  those  activities  with  a  candidate.  If  the  corporation  solicited 
only  its  restricted  class,  than  as  under  current  regulations,  it  could  coordinate  with 
a  candidate  or  a  party  committee. 

B.  Facilitation 

Corporations  and  unions  are  also  subject  to  restrictions  on  how  they  raise 
money  for  federal  candidates  and  other  federal  political  committees.  Often,  this 
type  of  activity  takes  the  form  of  a  group  of  executives  seeking  to  bundle 
contributions  from  colleagues.  The  "facilitation"  regulations  governing 
workplace  fundraising  are  detailed  and  complex.57  In  general,  they  prohibit 
executives  from  directing  staff  to  assist  them  in  fundraising,  require 
reimbursement  of  any  corporate  expenses  incurred  in  the  fundraising  process 
(even  in  advance  in  certain  situations),  and  forbid  coercing  contributions  from 
employees.  If  the  facilitation  regulations  are  followed,  the  executives  may 
coordinate  their  fundraising  with  a  candidate  without  any  expenses  being  deemed 
corporate  contributions. 

But  after  Citizens  United,  it  is  unclear  whether  these  restrictions  would  be 
constitutional  in  the  absence  of  coordination.  "Facilitation"  without  coordination 
may  seem  unlikely  and  has  not  been  a  fundraising  factor  in  the  past.  But  this  was 
because  there  was  no  different  legal  consequence  between  an  impermissible 


54.  2U.S.C.  §441b(b)(4). 

55.  FEC  v.  Nat'l  Right  to  Work  Comm.,  459  U.S.  197,  21 1  (1982). 

56.  1 1  C.F.R.  §  1 14.3(a)(1)  (2010). 

57.  See  id.  §§  114.2,  114.9. 


2010]  U.S.  CAMPAIGN  FINANCE  LAW  293 


contribution  and  expenditure.  Both  actions  were  prohibited.  If  expenditures  are 
now  protected  and  coordination  is  the  touchstone  for  determining  when  spending 
can  be  regulated  as  a  "contribution,"  independent  facilitation  of  political  activity 
appears  beyond  the  authority  of  the  FEC  or  Congress  to  regulate. 

C   Using  Money  Collected  for  Non-Political  Purposes 

In  Citizens  United,  the  Court  endorsed  the  use  of  corporate  general  treasury 
funds  for  political  speech.58  Yet  in  the  content  of  labor  organizations,  the  Court 
held  in  Communications  Workers  of  America  v.  Beck  that  in  closed-shop 
jurisdictions  (where  unions  can  collect  fees  from  nonunion  workers),  mandatory 
fees  may  not  be  used  for  purposes  outside  the  core  functions  of  labor  collective 
bargaining.59  Thus,  unions  may  not  use  mandatory  fees  for  politics;  instead, 
money  used  for  purposes  other  than  collective  bargaining  should  be  raised 
separately. 

Yet  in  Citizens  United,  the  Court's  majority  showed  little  interest  in  a  parallel 
argument  in  the  corporate  context — that  corporations  could  not  use  funds  invested 
by  shareholders  for  politics.60  Admittedly,  it  is  hard  to  think  of  a  context  in  which 
an  individual  is  compelled  to  invest  in  a  firm  in  a  manner  analogous  to  the  closed- 
shop  dues  context.  Accordingly,  the  Citizens  United  decision  may  not  necessarily 
call  into  question  the  Beck  decision  and  related  precedents.  But  the  argument  is 
not  frivolous,  either. 

Finally,  before  Citizens  United,  certain  nonprofit  corporations  could  make 
expenditures.  To  comply  with  the  Court's  decision  in  FEC  v.  Massachusetts 
Citizens  for  Life ,61  the  FEC  promulgated  regulations  setting  forth  the  requirements 
for  a  "qualified  nonprofit"  to  make  expenditures.62  These  regulations  are  now 
obsolete  because  this  right  is  now  recognized  for  all  corporations. 

D.  Other  Prohibited  Sources 

1.    Foreign  Nationals. — President  Obama,  a  critic  of  the  Citizens  United 
decision,  raised  the  specter  of  foreign  participation  in  United  States  elections  in 
his  2010  State  of  the  Union  address.63    As  noted  before,  the  Court's  opinion 
declaims  any  effect  on  the  laws  prohibiting  expenditures  by  foreign  nationals.64 
Yet  the  Court  also  declared  that  independent  expenditures  are  not  corrupting. 
What  other  reasons  would  justify  the  foreign  national  ban? 

Congress  has  more  discretion  to  regulate  foreign  nationals  in  the  authority  it 
has  over  immigration,  national  security,  and  foreign  affairs.  However,  in  the  First 


58.  Citizens  United  v.  FEC,  130  S.  Ct.  876,  929  (2010). 

59.  Commc'ns  Workers  of  Am.  v.  Beck,  487  U.S.  735,  762-63  (1988). 

60.  Citizens  United,  130  S.  Ct.  at  91 1. 

61.  479  U.S.  238  (1986). 

62.  11C.F.R.  §  114.10. 

63.  Barack  Obama,  President,  United  States  of  Am.,  State  of  the  Union  Address  (Jan.  27, 
2010),  available  at  http://www.c-span.org/executive/state-of-the-union.aspx  (2010). 

64.  Citizens  United,  130  S.  Ct.  at  91 1. 


294  INDIANA  LAW  REVIEW  [Vol.  44:285 


Amendment  context,  the  Court  has  held  that  First  Amendment  protections  apply 
equally  to  citizens  and  noncitizens — both  are  "people"  entitled  to  constitutional 
protection.65  As  legal  scholar  David  Cole  observed  (albeit  before  Citizens 
United),  "[i]f  protecting  corporate  speech  is  essential  to  preserving  a  robust  public 
debate,  so  too  is  protecting  noncitizens'  speech."66  Yet  when  a  foreign  individual 
wanted  to  volunteer  for  a  political  campaign,  it  took  an  FEC  advisory  opinion  to 
confirm  that  it  would  be  legal  for  him  to  do  so.67 

Especially  outside  the  immigration  context,  if  we  sincerely  embrace  the 
notion  that  the  solution  to  false  or  dangerous  speech  is  more  speech,  not  enforced 
silence,  it  is  very  difficult  to  justify  an  independent  expenditure  ban  on 
individuals  legally  present  in  the  United  States  as  professionals,  students,  or 
visitors.68  These  people  who  happen  to  be  foreign  nationals  also  pay  taxes, 
depend  upon  infrastructure,  education,  and  social  services  and  should  have  no 
less  a  role  in  the  community's  debate  about  paying  for  and  providing  public 
goods  and  services.69 

However,  does  this  tolerance  necessarily  extend  to  foreign  corporations? 
Would  the  Court  instead  recognize  that  the  federal  government  has  greater 
discretion  to  regulate  in  this  area,  given  the  diplomatic,  national  security,  and 
foreign  affairs  issues  that  accompany  restrictions  on  foreign  interests?  Would  it 
consider  such  restrictions  analogous  to  other  special  regulatory  regimes  applied 
to  foreign  businesses?70  The  answer  should  be  that  it  would  recognize  such 
discretion,  provided  the  law  bore  some  relationship  to  national  security  or 
diplomacy.  Even  here,  if  the  Court  saw  that  Congress  was  using  fractional 
foreign  ownership  as  a  pretext  to  extend  a  speech  ban  to  corporations,  it  might 
conclude  that  Congress  had  acted  unconstitutionally.  The  mere  fact  that  some 
foreign  interest  was  involved  might  be  insufficient  to  survive  scrutiny,  especially 
since  the  ban  would  silence  Americans  also  involved  in  the  enterprise. 

In  the  concern  over  the  influence  of  aliens  in  American  elections,  we  should 
be  reflective  enough  to  consider  how  other  nations  may  view  American 


65.  David  Cole,  Enemy  Aliens  211-13  (2003). 

66.  Id.  at  217. 

67.  Fed.  Election  Comm'n,  FEC  Advisory  Opinion  No.  1987-25  (Sept.  17,  1987), 
http://hemdon3.sdrdc.com/ao/no/870025.html  (last  visited  July  31,  2010). 

68. 

If  there  be  time  to  expose  through  discussion  the  falsehood  and  fallacies,  to  avert  the 
evil  by  the  processes  of  education,  the  remedy  to  be  applied  is  more  speech,  not 
enforced  silence.  Only  an  emergency  can  justify  repression.  Such  must  be  the  rule  if 
authority  is  to  be  reconciled  with  freedom. 
Whitney  v.  California,  274  U.S.  357,  377  (1927)  (Brandeis,  J.,  concurring). 

69.  Cf.  Gomillion  v.  Lightfoot,  364  U.S.  339  (1960)  (holding  unconstitutional  a  city's 
redistricting  plan  which  excluded  blacks  from  participating  in  municipal  elections). 

70.  See,  e.g.,  Foreign  Investment  and  National  Security  Act  of  2007  (FINS A),  Pub.  L.  No. 
110-49,  121  Stat.  246  (2007);  U.S.  Gov't  Accountability  Office,  GAO-09-608,  Sovereign 
Wealth  Funds:  Laws  Limiting  Foreign  Investment  Affect  Certain  U.S.  Assets  and 
Agencies  Have  Various  Enforcement  Processes  (2009). 


2010]  U.S.  CAMPAIGN  FINANCE  LAW  295 


participation  in  their  elections.  Americans  with  dual  citizenship  are  important 
voting  blocs  for  a  number  of  other  nations'  politicians.  American  political 
consultants  have  shaped  campaigns  globally.71  A  Carnegie  Endowment  op-ed 
described  U.S.  involvement  in  Ukraine  elections: 

Did  Americans  meddle  in  the  internal  affairs  of  Ukraine?  Yes.  The 
American  agents  of  influence  would  prefer  different  language  to  describe 
their  activities — democratic  assistance,  democracy  promotion,  civil 
society  support,  etc. — but  their  work,  however  labeled,  seeks  to  influence 
political  change  in  Ukraine.  The  U.S.  Agency  for  International 
Development,  the  National  Endowment  for  Democracy  and  a  few  other 
foundations  sponsored  certain  U.S.  organizations,  including  Freedom 
House,  the  International  Republican  Institute,  the  National  Democratic 
Institute,  the  Solidarity  Center,  the  Eurasia  Foundation,  Internews  and 
several  others  to  provide  small  grants  and  technical  assistance  to 
Ukrainian  civil  society.  The  European  Union,  individual  European 
countries  and  the  Soros-funded  International  Renaissance  Foundation  did 
the  same.72 

Understandably,  many  Americans  view  U.S. -sponsored  electoral  activity 
favorably,  yet  remain  suspicious  about  the  motives  and  sincerity  of  foreign 
nationals  who  want  to  instruct  Americans  about  their  political  leadership. 

Caution  may  be  prudent  when  considering  the  involvement  of  foreign 
governments,  state-sponsored  corporations,  unions,  parties,  and  the  like,  in 
American  politics.  Even  so,  it  made  little  sense  even  before  Citizens  United  to 
abridge  the  activities  of  foreign  individuals  legally  in  the  United  States  and 
subject  to  our  laws.  Given  the  Court's  attitude  toward  closer  scrutiny,  a  challenge 
to  the  scope  of  this  law  might  be  successful. 

2.  Government  Contractors  and  Congressionally  Chartered  Corporations. — 
Federal  campaign  finance  statutes  presently  forbid  government  contractors  and 
congressionally  chartered  corporations  from  making  expenditures.73  Those 
restrictions  have  not  had  much  impact  because  these  entities  are  often  also 
ordinary  corporations.  Thus,  the  expenditure  ban  that  has  been  applicable  to 
corporations  has  also  prevented  them  from  making  expenditures.  It  is  unclear 
how  the  Court  would  apply  its  Citizens  United  reasoning  to  these  contexts.  Read 
broadly,  the  holding  that  independent  expenditures  are  "not  corrupt[ing]"74  would 
suggest  that  these  entities  should  also  be  able  to  make  expenditures. 

As  with  the  rights  of  foreign  nationals,  the  answer  in  the  contractor  and 


7 1 .  Fritz  Plasser,  American  Campaign  Techniques  Worldwide,  5  Harv.  Int'l  J.  Press/Pol. 
33,  54  (2000);  Roman  Olearchyk,  U.S.  Political  Advisers  Add  Polish  to  Ukraine  Election 
Candidates,  FlN.  TIMES,  Jan.  28,  2010. 

72.  Michael  McFaul,  'Meddling '  In  Ukraine;  Democracy  Is  Not  an  American  Plot,  Wash. 
Post,  Dec.  21,  2004,  at  A25. 

73.  See  2  U.S.C.  §  441b  (2006);  see  also  id.  §  441c;  1 1  C.F.R.  §  1 15.2  (2010)  (describing 
federal  contractor  ban). 

74.  See  Citizens  United  v.  FEC,  130  S.  Ct.  876,  910  (2010). 


296  INDIANA  LAW  REVIEW  [Vol.  44:285 


congressionally  chartered  corporations  contexts  may  not  be  so  simple.  The  Court 
rejected  the  expenditure  ban  in  Citizens  United  in  part  because  it  was  broad  and 
undifferentiated.75  The  ban  did  not  respond  to  any  evident  threat  to  politics  from 
corporations  as  such.76  Thus,  part  of  the  defect  with  that  section  of  the  statute  was 
its  lack  of  tailoring  and  the  flawed  notion  that  all  corporations  of  whatever  size 
and  structure  are  equally  dangerous  to  democracy.77 

These  may,  however,  be  special  cases.  With  government  contractors  and 
congressionally  chartered  corporations,  as  with  foreign  corporations,  Congress 
may  be  permitted  greater  discretion  to  craft  expenditure  restrictions  that  respond 
to  a  genuine  identifiable  threat  of  corruption.  Congress  and  executive  branch 
agencies  have  latitude  to  set  prerequisites  for  the  companies  that  contract  with  the 
government.78  Thus,  Congress  could  identify  a  greater  risk  of  corruption  from 
companies  that  receive  no-bid  federal  government  contracts  because  the 
competitive  bidding  process  is  not  able  to  buffer  the  potential  for  undue  influence 
between  the  contractor  and  governmental  actors.  Alternatively,  Congress  might 
structure  such  a  regulation  as  an  anti-"pay  to  play"  law  by  disqualifying 
corporations  and  unions  that  make  expenditures  from  receiving  no-bid  contracts. 
Congressionally  chartered  corporations,  for  their  part,  are  discrete  entities  created 
by  Congress,  and  unlike  regular  corporations  they  are  imbued  with  a  "public" 
purpose.  Congress  has  a  distinctive  ability  to  set  their  mission  and  power  with 
this  small  set  of  entities.79 

Similarly,  post-Citizens  United,  state  and  local  jurisdictions  may  remain  able 
to  restrict  the  political  expenditures  of  certain  kinds  of  businesses  if,  in  that 
jurisdiction's  experience,  the  field  has  posed  special  problems  of  corruption  in 
politics.80  At  present,  various  jurisdictions  have  imposed  additional  restrictions 
on  political  activities  by  alcoholic  beverage  licensees,81  gaming  licensees,82 


75.  Id.  at  911. 

76.  Id 

77.  See  id. 

78.  Federal  procurement  is  governed  by  the  fifty-three  part  Federal  Acquisition  Regulation. 
See  48  C.F.R.  pts.  1-53  (2010).   For  example,  the  federal  government  can  demand  that  federal 
contractors  observe  additional  hiring  and  recruitment  policies  beyond  that  demanded  of  ordinary 
business.  See  About  OFCCP,  U.S.  Dep'T  OF  LABOR,  http://www.dol.gov/ofccp/aboutof.html  (last 
visited  Oct.  10,  2010)  (summarizing  the  necessary  requirements). 

79.  An  example  of  a  congressionally  chartered  corporation  would  be  Freddie  Mac.   See 
Federal  Home  Loan  Mortgage  Corporation  Act  of  1970,  Pub.  L.  No.  91-351,  §  301,  84  Stat.  450 
(prior  to  2009  amendment). 

80.  An  interesting,  if  dated,  description  of  political  practices  of  certain  "special  sources"  is 
in  chapter  6  of  Alexander  Heard,  The  Costs  of  Democracy  142-68  (1960). 

81.  See,  e.g.,  Village  of  Downers  Grove,  III.,  Code  §  3.22SEC  (Conduct  of 
Licences/Prohibited  Campaign  Contributions);  Schiller  Park  Colonial  Inn  v.  Berz,  349  N.E.2d  61 
(111.  1976). 

82.  See,  e.g.,  N.J.  Stat.  Ann.  §  5:12-138  (West  2010),  upheld  in  Soto  v.  New  Jersey,  565 
A.2d  1088  (N.J.  Super.  App.  Div.  1989);  see  also  Iowa  Code  Ann.  §  99F.6  (West,  Westlaw 
through  2010  Reg.  Sess.);  Ind.  Code  §  4-33-10-2.1  (2010);  Mich.  Comp.  Laws  Ann.  §  432.207b 


20 1 0]  U.S.  CAMPAIGN  FINANCE  LAW  297 


racetrack  operations,83  contractors,84  and  public  utilities.85  Again,  however,  the 
Court  would  probably  look  behind  the  bare  assertion  of  corruption  and  find  the 
restriction  unconstitutional  if  it  is  presented  with  a  pretext  unsupported  by  history 
or  experience.  After  Citizens  United,  strict  scrutiny  means  exactly  that. 

III.  Reporting  Requirements  and  Disclaimers 

The  "transparency"  provisions  of  federal  election  law  emerged  from  Citizens 
United  with  a  ringing  endorsement.86  Seemingly  channeling  Perry  Belmont  and 
the  National  Publicity  Law  movement  of  the  early  twentieth  century,87  the  Court 
endorsed  disclaimers  and  disclosure  as  an  appropriate  means  to  thwart  corruption 
and  inform  voters  of  the  interests  behind  candidates.88  The  handful  of  situations 
where  the  Court  has  found  disclaimers  and  disclosure  unlawful  have  remained 
restricted  to  interpersonal  political  exchange,  as  in  Mclntyre  v.  Ohio  Elections 
Commission*9  and  radical  minor  political  movements,  as  in  Brown  v.  Socialists 
Workers  '74  Campaign  Committee.90 

However,  both  the  disclosure  requirements  in  Citizens  United  and  the 
exceptions  in  these  more  specific  cases  involved  disclosure  and  disclaimer 
requirements  that  were  attached  to  discrete  electoral  activities.  In  Citizens 
United,  the  Court  upheld  the  BCRA  requirement  that  anyone  making 
electioneering  communication  expenditures  over  $10,000  must  file  a  statement 
listing  the  amount  of  the  expenditure,  the  election  to  which  the  communication 
was  directed,  and  the  names  of  certain  contributors.91  In  Mclntyre,  the  Court 
found  unconstitutional  the  requirement  that  an  individual  put  her  name  on  anti- 


(West,  Westlaw  though  2010  Reg.  Sess.);  see  generally  Donna  B.  More  et  al.,  Access  Denied: 
Casinos,  Campaign  Contributions  and  the  Constitution,  2  GAMING  L.  REV.  425  (1998). 

83.  See,  e.g.,  Va.  Code  Ann.  §  59.1-375  (LEXIS  through  2010  Reg.  Sess.). 

84.  See  Ind.  Code  §  4-30-3-19.5  (2010);  Ky  Rev.  Stat.  Ann.  §  121.056  (West,  Westlaw 
through  2010  leg.);  Ohio  Rev.  Code  Ann.  §  3517.13(J)  (West,  Westlaw  through  2010  File  54  of 
the  128th  GA);  S.C.  Code  Ann.  §  8-13-1342  (Supp.  2009);  W.  Va.  Code  Ann.  §  3-8-12(d)  (West, 
Westlaw  through  2d  Extraordinary  Sess.);  Blount  v.  SEC,  61  F.3d  938  (D.C.  Cir.  1995);  Green 
Party  of  Conn.  v.  Garfield,  537  F.  Supp.  2d  359  (D.  Conn.  2008),  aff'd  in  part  and  rev 'd  in  part, 
616  F.3d  189,  616  F.  3d  213  (2d  Cir.  2010). 

85.  The  Public  Utility  Holding  Act  of  1935  prohibited  public  utilities  from  making 
contributions  and  expenditures  in  federal  races  but  was  repealed  in  2006.  See  Public  Utility 
Holding  Act  of  1935,  ch.  687, 49  Stat.  803m,  repealed  by  Public  Utility  Holding  Company  Act  of 
2005,  Pub.  L.  No.  109-58,  §  1263,  1 19  Stat.  594;  see  also  Ga.  Code  §  21-5-30(1)  (2010). 

86.  Citizens  United  v.  FEC,  130  S.  Ct.  876,  916  (2010). 

87.  See,  e.g.,  Perry  Belmont,  Return  to  Secret  Party  Funds  (photo,  reprint  1974) 
(1927). 

88.  Citizens  United,  130  S.  Ct.  at  913-15. 

89.  514  U.S.  334(1995). 

90.  459  U.S.  87(1982). 

9 1 .  Citizens  United,  1 30  S .  Ct.  at  9 1 4- 1 5 . 


298  INDIANA  LAW  REVIEW  [Vol.  44:285 


school  bond  flyers.92  In  Brown,  a  record  of  official  and  unofficial  harassment 
permitted  the  Socialist  Workers  Party  committee  to  be  exempt  from  campaign 
finance  disclosure  requirements.93 

Ordinarily,  these  disclaimers  and  disclosure  requirements  are  justified  and 
constitutional.  In  the  context  of  corporate  and  labor  expenditures,  however,  it  is 
less  clear  how  the  Court  would  view  reporting  requirements  that  go  beyond 
disclosing  what  other  entities  directly  give  to  support  an  expenditure,  to 
encompass  donors  who  give  with  no  strings  attached.  In  such  cases,  the 
connection  between  the  donation  and  political  activities  is  much  more  remote. 
Similarly,  it  is  less  clear  how  much  more  information  Congress  could  require  on 
a  disclaimer.  Because  disclaimer  and  disclosure  requirements  do  not  ban  speech, 
as  the  contribution  ban  did,  the  Court  may  give  Congress  relatively  freer  reign  to 
craft  requirements.  As  the  Court  stated  in  Citizens  United,  "[t]he  First 
Amendment  protects  political  speech;  and  disclosure  permits  citizens  and 
shareholders  to  react  to  the  speech  of  corporate  entities  in  a  proper  way."94 

At  some  point,  however,  disclaimer  and  disclosure  requirements  intrude  on 
free  association  interests,  such  as  those  the  Court  found  compelling  in  NAACP  v. 
Alabama.95  There,  the  State  of  Alabama  insisted  that  the  NAACP  produce 
membership  lists,  which  it  argued  could  show  whether  the  NAACP  should  be 
required  to  file  state  corporate  paperwork  as  an  out-of-state  enterprise.96  The 
Court  protected  these  membership  lists  under  the  First  Amendment  because  their 
production  would  burden  members  simply  because  they  had  chosen  to  associate 
with  the  NAACP.97  Similarly,  if  Congress  moves  beyond  disclosure  that  is 
connected  to  political  activity,  and  requires  unreasonable  or  unduly  burdensome 
disclosure  (e.g.,  of  all  donors  or  all  dues-paying  members)  as  an  indirect  means 
of  chilling  protected  speech,  the  Court  could  revisit  its  deferential  treatment  of 
disclaimer  and  disclosure  requirements. 

IV.  Political  Committee  Status 

Limits,  prohibitions,  and  reporting  requirements  all  come  together  when  a 
group  becomes  a  political  committee.  The  statute  itself  is  quite  strict.  A  group 
that  takes  $1000  in  contributions  or  makes  $1000  in  expenditures  for  the  purpose 
of  influencing  an  election  for  federal  office  must  register  with  the  Federal 
Election  Commission,  follow  the  $5000  contribution  limit,  follow  prohibitions 
on  contributions  from  corporations,  unions,  and  other  prohibited  sources,  and  file 
regular  reports  of  its  financing  and  disbursements.98  If  that  were  the  law  alone, 
then  Citizens  United  would  mean  little.    Once  a  corporation  made  $1000  in 


92.  Mclntyre,  514  U.S.  at  356-57. 

93.  Brown,  459  U.S.  at  101-02. 

94.  Citizens  United,  130  S.  Ct.  at  916. 

95.  357  U.S.  449(1958). 

96.  Id.  at  452-54. 

97.  Id.  at  461-63. 

98.  See  2  U.S.C.  §  431(4)  (2006);  id.  §§  432,  433. 


2010]  U.S.  CAMPAIGN  FINANCE  LAW  299 


expenditures,  it  would  need  to  spend  every  dollar  thereafter  out  of  a  PAC. 

But  in  Buckley,  the  Court  interpreted  the  committee  threshold  to  apply  only 
if  the  group  was  itself  under  the  control  of  a  candidate  or  political  party  or  had  as 
its  major  purpose  "the  nomination  or  election  of  a  candidate."99  Subsequent 
judicial  interpretation  of  the  so-called  "major  purpose"  test,  and  various  FEC 
regulatory  initiatives,  has  rendered  a  mixed  bag.100  Some  situations  are  clear-cut. 
At  one  extreme,  a  "shell"  corporation  formed  solely  to  make  expenditures  in 
elections  would  be  required  to  follow  the  political  committee  rules,  including  the 
limits  and  prohibitions  on  contributions  to  it.101  At  another  extreme,  a 
multifaceted  multimillion-dollar  corporation  that  used  general  treasury  funds  to 
make  $1500  in  expenditures  would  not  be  required  to  follow  these  rules.102 

But  future  challenges  will  arise  as  corporate  spenders  and  FEC  regulators 
tussle  over  the  line  in  the  middle.  Does  "major  purpose"  mean  expenditures  of 
over  fifty  percent  of  the  corporation's  total  spending?  In  what  time  period?  What 
if  the  group  has  numerous  purposes,  but  making  political  expenditures  is  the 
largest  of  its  expenses.103  What  role  should  statements  about  the  group's 
"purpose"  play  in  its  formative  documents,  literature,  and  fundraising  in  this 
determination? 

Conclusion 

The  statute  governing  federal  campaign  finance  requires  an  overhaul  in  the 
wake  of  the  Court's  development  of  constitutional  doctrine.  The  Court  has  not 
only  endorsed  political  expression  by  incorporated  groups  and  unions,  but  has 
also  taken  a  close  look  at  areas  where  Congress  and  state  legislatures  impose 
burdensome  or  unwarranted  restrictions.  The  Court  stands  ready  to  offer  robust 
protection  for  political  speech  and  association  by  groups — unless  the  group  is  a 
political  party  or  a  candidate's  campaign  committee. 

That  dichotomy  troubles  many  observers.104  Parties  and  candidate  campaign 


99.   Buckley  v.  Valeo,  424  U.S.  1,  79  (1976). 

100.  See,  e.g.,  Political  Committee  Status,  72  Fed.  Reg.  5595  (Feb.  7,  2007). 

101.  See  Buckley,  424  U.S.  at  79;  Political  Committee  Status,  72  Fed.  Reg.  5595. 

102.  See  Buckley,  424  U.S.  at  79;  Political  Committee  Status,  72  Fed.  Reg.  5595. 

103.  As  of  this  writing,  another  appellate  court  decision  could  potentially  limit  "major 
purpose"  drastically.  Unity08  v.  FEC,  596  F.3d  861  (D.C.  Cir.  2010).  The  court  held  that  a 
committee  formed  to  ultimately  support  a  ticket  chosen  in  the  future  via  Internet  convention  would 
not  need  to  register  and  report  until  it  had  chosen  a  specific  candidate  to  support.  Id.  at  869.  In 
contrast,  the  FEC  had  advised  the  group  that  it  would  become  a  political  committee  once  it  spent 
$1000  to  obtain  ballot  access.  Id.  at  863.  The  court  read  literally  Buckley's  rule  that  a  committee 
would  only  be  formed  to  support  "a  candidate."  Id.  at  867  (quoting  Buckley,  424  U.S.  at  79).  Yet 
another  case  challenging  "major  purpose,"  Real  Truth  About  Obama,  Inc.  v.  FEC,  was  also  working 
its  way  through  the  federal  courts  before  the  Supreme  Court  vacated  the  judgment  and  remanded 
the  case  back  to  the  Fourth  Circuit.  575  F.3d  342  (4th  Cir.  2009),  vacated,  130  S.  Ct.  2371  (2010) 
(mem.) 

104.  See,  e.g.,  Defining  the  Future  of  Campaign  Finance  in  an  Age  of  Supreme  Court 


300  INDIANA  LAW  REVIEW  [Vol.  44:285 


committees  are  designed  to  participate  in  politics,  yet  they  are  relatively 
disadvantaged  at  present.  To  resolve  this  situation  today,  Congress  should 
rework  restrictions  on  parties  rather  than  attempt  to  indirectly  burden  outside 
groups.105 

Congress  should  embrace  the  opportunity  to  revise  the  campaign  finance 
restrictions  to  make  them  clearer,  simpler,  and  less  burdensome.  Perhaps 
members  believe  political  regulation  is  shrewd  politics  or  even  good  government. 
But  in  an  era  of  increasing  dissatisfaction  with  the  performance  of  the  federal 
government,  one  can  wonder  whether  embracing  the  changing  tide  might  be  the 
shrewder  alternative.  That  approach,  of  course,  would  have  the  additional  benefit 
of  being  better  aligned  with  the  Constitution  and  its  respect  for  and  protection  of 
political  speech. 


Activism:  Hearing  Before  the  Comm.  on  House  Admin.,  1 1 1th  Cong.  1 5-27  (2010)  (statement  of 
Robert  D.  Lenhard,  Former  Chairman,  Fed.  Election  Comm'n). 
105.   Id. 


Indiana  Law  Review 

Volume  44  2010  Number  1 


NOTE 


Sexting:  A  Response  to  Prosecuting  Those 
Growing  Up  with  a  Growing  Trend 


Jordan  J.  Szymialis* 


Introduction 

Hope  liked  a  boy  and  sent  him  a  photo  showing  her  breasts.1  The  photo 
eventually  made  its  way  around  Hope's  entire  school.2  The  school  suspended 
Hope,  and  she  returned  to  school  to  face  a  barrage  of  insults  as  students  called  her 
a  "'whore'  and  [a]  'slut.'"3  Three  months  later,  Hope's  mother  found  her 
daughter  dead,  all  of  thirteen  years  old,  after  "Hope  [hung]  herself  in  her 
bedroom."4 

Like  Hope's  tragic  story,  the  debate  over  how  to  respond  to  "sexting"  has 
headlined  news  outlets  over  the  past  several  years.5  A  minor  creates  a  "sext" 
message  by  "tak[ing]  a  picture  of  him-  or  herself  with  a  digital  camera  or  cell 
phone  camera,  or  ask[ing]  someone  else  to  take  that  picture."6  In  a  high  school 
class  of  one  hundred  students,  perhaps  as  many  as  twenty  of  these  students  will 
have  sent  sexually  explicit  images  to  each  other  by  cell  phone.7    Prosecutors 


*  J.D.-M.B.A.  Candidate,  201 1,  Indiana  University  School  of  Law — Indianapolis;  B.A., 
2007,  Indiana  University,  Bloomington,  Indiana.  I  would  like  to  express  immense  gratitude  to 
Professor  Joel  M.  Schumm,  Hattie  Harman,  and  Danielle  Tucker,  as  well  as  the  other  editors  of  the 
Indiana  Law  Review  whose  suggestions  and  edits  made  this  Note  possible.  Finally,  I  want  to  thank 
my  family,  friends,  and  especially  Cindy,  for  their  enduring  patience  and  feedback  throughout  the 
development  of  this  Note. 

1 .  Andrew  Meacham,  A  Shattered  Self-Image,  St.  PETERSBURG  Times,  Nov.  29,  2009,  at 
1A,  available  at  2009  WLNR  24167487. 

2.  Id. 

3.  Id. 

4.  Id.  While  not  as  tragic  in  their  endings,  many  stories  surrounding  incidents  of  sexting 
follow  similar  fact  patterns.  See,  e.g.,  Mathias  H.  Heck,  Jr.,  Sexting  and  Charging  Juveniles — 
Balancing  the  Law  and  Bad  Choices,  43  PROSECUTOR  28,  28  (Mar.  2009). 

5.  Robert  D.  Richards  &  Clay  Calvert,  When  Sex  and  Cell  Phones  Collide:  Inside  the 
Prosecution  of  a  Teen  Sexting  Case,  32  HASTINGS  COMM.  &  ENT.  L.J.  1,1-3  (2009). 

6.  Miller  v.  Skumanick,  605  F.  Supp.  2d  634,  647  (M.D.  Pa.  2009),  off 'd  sub  nom.  Miller 
v.  Mitchell,  598  F.3d  139  (3d  Cir.  2010). 

7.  See  Nat'l  Campaign  to  Prevent  Teen  &  Unplanned  Pregnancy,  Sex  and  Tech: 
Results  from  a  Survey  of  Teens  and  Young  Adults  1  (2008),  available  at  http://www. 


302  INDIANA  LAW  REVIEW  [Vol.  44:301 


threaten  legal  action,8  and  students'  peers  ridicule  teens9  appearing  in  the  images. 

The  law  has  failed  to  adapt  quickly  enough  to  teens  sending  these  images. 
In  response  to  sexting,  prosecutors  have  utilized  laws  originally  intended  for  child 
predators,10  such  as  child  pornography  statutes.11  Many  of  these  statutes  define 
the  prohibited  acts  using  broad  language.  For  example,  Pennsylvania's  child 
pornography  statute,  the  statute  under  which  teens  could  be  prosecuted  for 
sending  sext  messages,  prohibits  depictions  of  minors  "engag[ed]  in  a  prohibited 
sexual  act."12  Nudity  is  included  in  the  definition  of  a  "prohibited  sexual  act"  if 
the  depiction  is  sexually  stimulating.13  For  parents  and  teens  facing  an  aggressive 
prosecutor,  this  takes  the  phrase  "in  the  eye  of  the  beholder"  to  a  whole  new  level. 
A  conviction  under  a  child  pornography  statute,  "even  in  juvenile  court,"  may 
require  classification  and  registration  as  a  sex  offender  for  the  juvenile.14  This 
registration  includes  "community  notification  requirements."15  In  Oregon,  a 
judge  analogized  a  sexting  conviction  to  The  Scarlet  Letter 's  Hester  Prynne  and 
stated  that  the  "sex  offender  label"  could  "brand[  ]  [the  letter]  "'A'  on  [a  teen's] 
forehead  for  the  rest  of  [her]  life."16 

Part  I  of  this  Note  details  the  history  and  rationale  governing  the  juvenile 
justice  system,  as  well  as  recent  changes  to  the  system.  Part  II  looks  at  child 
pornography  laws,  the  justifications  behind  them,  and  recent  cases  discussing 
how  to  address  juveniles  who  create  pornography.  Part  III  details  the  recent 
phenomenon  of  sexting  and  surveys  several  state  bills  adopted  or  considered 
across  the  country.  Finally,  Part  IV  proposes  changes  to  state  laws  and  attempts 


thenationalcampaign.org/sextech/PDF/SexTech_Summary.pdf.  But  see  Robert  H.  Wood,  The 
Failure  of  Sexting  Criminalization:  A  Plea  for  the  Exercise  of  Prosecutorial  Restraint,  16  MlCH. 
Telecomm.  &  Tech.  L.  Rev.  151,154  (2009)  (arguing  that  the  survey  does  not  accurately  portray 
the  true  scope  of  the  problem);  Carl  Bialik,  Which  Is  Epidemic — Sexting  or  Worrying  About  It? , 
Wall  St.  J.,  Apr.  8,  2009  (criticizing  the  survey's  procedure  in  gathering  its  sample). 

8.  Richards  &  Calvert,  supra  note  5,  at  3-5. 

9.  Kevin  Turbert,  Note,  Faceless  Bullies:     Legislative  and  Judicial  Responses  to 
Cyberbullying,  33  SETON  Hall  LEGIS.  J.  651,  656  n.24  (2009). 

10.  See  Shannon  P.  Duffy,  'Sexting'  Case  to  Take  Center  Stage  at  3rd  Circuit,  LEGAL 
Intelligencer,  Jan.  14,  2010,  at  1,  available  at  2010  WLNR  752642  (discussing  Miller  v. 
Skumanick  and  the  prosecutor's  appeal  of  the  district  court's  injunction  to  prevent  opportunity  to 
bring  prosecution  under  child  pornography  laws). 

11.  See  Skumanick,  605  F.  Supp.  2d  at  637-38  (observing  that  conviction  under  child 
pornography  law  could  "give  even  juveniles  a  permanent  record"). 

12.  18  Pa.  Cons.  Stat.  Ann.  §  6312(b)  (West,  Westlaw  through  2010  legislation). 

13.  Id  §  6312(g). 

1 4.  Stephen  F.  Smith,  Jail  for  Juvenile  Child  Pornographers? :  A  Reply  to  Professor  Leary, 
15  VA.  J.  SOC.  POL'Y  &  L.  505,  535-36  (2008)  (citing  Mary  Graw  Leary,  Self-Produced  Child 
Pornography:  The  Appropriate  Societal  Response  to  Juvenile  Self-Sexual  Exploitation,  1 5  Va.  J. 
SOC.  POL' Y  &  L.  1 ,  46-47  (2007)). 

15.  Id 

1 6.  Lori  Tobias,  Teenager  Gets  Jail  in  'Sexting '  Case,  Oregonian,  Oct.  1 7, 2009,  available 
at  2009  WLNR  20589470. 


2010]  SEXTING  303 


to  merge  the  strengths  of  adopted  or  proposed  state  bills  and  rationales  underlying 
the  juvenile  court  system  and  child  pornography  laws. 

I.  Explanation  of  the  Juvenile  Court  System 

Prior  to  1899,  states  tried  children  in  adult  courts,  and  a  child's  lone  defense 
was  to  rely  on  the  "common  law  infancy  defense  ...  as  the  only  protection"  from 
adult  sentences.17  In  1899,  Illinois  passed  a  statute  creating  a  court  for  juveniles, 
which  every  other  state  soon  imitated.18  States  derived  their  power  to  regulate 
juvenile  offenses  from  the  doctrine  of  parens  patriae,19  which  asserts  that  states 
provide  "protection  to  those  unable  to  care  for  themselves."20  The  doctrine 
seemingly  gave  states  the  right  to  withhold  procedural  due  process  safeguards  to 
protect  children's  rights  because  the  states  did  not  view  children  as  needing  those 
safeguards.21  States  could  also  interfere  with  parents'  "fundamental"  but  limited 
rights  "to  raise  their  children"22  if  the  parents  failed  and  the  child  was  deemed 
"delinquent."23 

Proponents  for  a  separate  system  for  juveniles  based  their  arguments  on 
rehabilitating  juveniles  and  "sav[ing]  [them]  from  a  downward  career."24  Thus, 
theoretically,  "[t]he  avowed  priority  of  our  juvenile  justice  system  .  .  .  has, 
historically,  been  rehabilitation  rather  than  retribution."25  An  emphasis  on 
rehabilitation  has  also  led  the  juvenile  court  system  to  be  primarily  private  in 
nature.26  Contrary  to  the  rationale  of  public  adult  hearings,  the  prevailing  view 
in  juvenile  law  has  been  that  children  need  protection  from  "any  public 


17.  Courtney  P.  Fain,  What's  in  a  Name?  The  Worrisome  Interchange  of  Juvenile 
"Adjudications  "  with  Criminal  "Convictions, "  49  B.C.  L.  REV.  495, 498  (2008)  (citing  BARRY  C. 
Feld,  Bad  Kids:  Race  and  the  Transformation  of  the  Juvenile  Court  47  (1999)). 

18.  See  In  re  Gault,  387  U.S.  1,  14-15(1967). 

19.  Leary,  supra  note  14,  at  26  (arguing  that  the  state's  police  power  and  the  doctrine  support 
intervention  and  defining  the  "doctrine  as  the  basis  for  government  intervention  in  the  lives  of 
children  who  were  exposed  to  danger  because  of  the  failure  of  those  responsible  for  the  children's 
safety  to  protect  them")  (citing  Late  Corp.  of  the  Church  of  Jesus  Christ  of  Latter-Day  Saints  v. 
United  States,  136  U.S.  1,  57  (1890)). 

20.  Black's  Law  Dictionary  1 144  (8th  ed.  2004). 

21.  In  re  Gault,  387  U.S.  at  17. 

22.  Leary,  supra  note  14,  at  26-27  (citing  Troxel  v.  Granville,  530  U.S.  57,  87  (2000) 
(Stevens,  J.,  dissenting)). 

23.  In  re  Gault,  3S7  U.S.  at  17. 

24.  Id.  at  15  (quoting  Julian  W.  Mack,  The  Juvenile  Court,  23  HARV.  L.  Rev.  104,  1 19-20 
(1909)). 

25.  United  States  v.  Juvenile  Male,  581  F.3d  977,  978  (9th  Cir.  2009),  amended  and 
superseded  by  590  F.3d  924  (9th  Cir.  2010),  and  certifying  questions  to  130  S.  Ct.  2518  (2010). 

26.  Fain,  supra  note  1 7,  at  500  (citing  David  S.  Tanenhaus,  The  Evolution  of  Juvenile  Courts 
in  the  Early  Twentieth  Century:  Beyond  the  Myth  of  Immaculate  Construction,  in  A  CENTURY  OF 
Juvenile  Justice  42,  61  (Margaret  K.  Rosenheim  et  al.  eds.,  2002)). 


304  INDIANA  LAW  REVIEW  [Vol.  44:301 


humiliation  and  stigmatization  that  might  otherwise  hamper  rehabilitation."27 
This  notion  of  privacy  promotes  rehabilitation  through  "'clinical'  procedures 
'rather  than  punitive'  ones."28  Without  this  confidentiality,  the  "stigma"  of  being 
adjudicated  as  a  delinquent  could  limit  a  child's  future  opportunities  in  his 
educational  and  professional  life.29 

Juvenile  courts  have  also  justified  imposing  punishment  based  on  the 
traditional  rationales  of  deterrence,  incapacitation,  and  retribution.30  As  it  stands, 
the  juvenile  court  system  can  work  to  deter  juveniles  from  committing  future  acts 
that  would  require  them  to  be  adjudicated  as  delinquents.31  Critics  of  the  system, 
however,  have  questioned  whether  the  rehabilitation  and  deterrence  methods  can 
coexist.32  Their  concern  rests  on  the  idea  that  reduced  punishments  aimed  at 
rehabilitation  may  not  provide  enough  of  a  deterrent  effect  against  future  criminal 
activity.33 

Over  the  past  forty  years,  legislatures,  prosecutors,  and  shifts  in  public 
opinion  have  moved  juvenile  courts  closer  to  the  retribution  model.34  The 
retribution  model  inherently  holds  that  juveniles  must  be  responsible  for  their 
actions.35  Proponents  of  rehabilitation,  though,  have  criticized  more  severe 
responses  because  the  likelihood  of  repeat  offenses  decreases  as  juveniles 
mature.36  Critics  also  point  to  additional  societal  costs  and  occasional  severe 
sentences  that  seem  inherently  unfair  in  a  system  founded  on  the  concept  of 
treatment.37 

As  juvenile  courts  have  become  more  sophisticated,  the  Supreme  Court  has 
added  additional  procedural  safeguards  to  protect  juveniles.  In  Kent  v.  United 
States,  due  process  and  fairness  required  that  a  juvenile  was  "by  [federal]  statute 
entitled  to  certain  procedures  and  benefits  as  a  consequence  of  his  statutory  right 
to  the  'exclusive'  jurisdiction  of  the  [j]uvenile  [c]ourt."38  The  Court  also  noted 
that  the  state's  unique  relationship  with  minors  in  its  parens  patriae  capacity  did 


27.  Id. 

28.  Juvenile  Male,  581  F.3d  at  984  (quoting  In  re  Gault,  387  U.S.  at  15-16). 

29.  See  Joanna  S.  Markman,  Community  Notification  and  the  Perils  of  Mandatory  Juvenile 
Sex  Offender  Registration:  The  Dangers  Faced  by  Children  and  Their  Families,  32  Seton  Hall 
Legis.  J.  261,272(2008). 

30.  Robert  H.  Mnookin  &  D.  Kelly  Weisberg,  Child,  Family,  and  State:  Problems 
and  Materials  on  Children  and  the  Law  737  (5th  ed.  2005). 

31.  Id.  at  742. 

32.  See  id.  at  742-44. 

33.  Mat  743. 

34.  Andrew  R.  Strauss,  Note,  Losing  Sight  of  the  Utilitarian  Forest  for  the  Retributivist 
Trees:  An  Analysis  of  the  Role  of  Public  Opinion  in  a  Utilitarian  Model  of  Punishment,  23 
Cardozo  L.  Rev.  1549,  1554  (2002). 

35.  Mnookin  &  Weisberg,  supra  note  30,  at  745. 

36.  Id.  at  743-45. 

37.  Id.  at  744. 

38.  Kent  v.  United  States,  383  U.S.  541,  557  (1966). 


2010]  SEXTING  305 


not  give  the  state  the  right  to  exercise  "procedural  arbitrariness."39  In  In  re  Gault, 
the  Court  held  that  a  juvenile  was  entitled  to  the  same  procedural  due  process 
safeguards  he  would  have  received  outside  of  juvenile  court.40  Writing  for  the 
majority,  Justice  Fortas  stated  that  "the  condition  of  being  a  boy  does  not  justify 
a  kangaroo  court."41 

Historically,  the  Court  has  left  juvenile  court  punishments  to  the  states.42  The 
Court  has,  however,  acknowledged  that  juveniles  are  different  from  adults.43  This 
basic  age  difference  permits  the  juvenile  court  system  to  view  delinquents  as 
"changeable  and  to  some  extent  malleable  entities]."44  Therefore,  the  central 
question  is  "[w]hen  should  a  person  be  treated  as  an  adult?"45  Although  as  a 
society,  our  answer  to  this  seems  to  be  "consistent  .  .  .  [only  in]  our 
inconsistency,"  the  Court  has  slightly  illuminated  our  inquiry.46  Furthermore, 
legal  scholars  have  pointed  to  scientific  research  illustrating  that  teenagers  are 
different  from  adults  in  terms  of  "psychosocial,  physical,  and  neurological 
traits."47 

Recent  research  indicates  that  teenagers  adopt  others'  "attitudes,  values,  and 
behaviors"  to  form  their  "individual  identity,  autonomy,  interpersonal  intimacy, 
sexuality  and  personal  achievement."48  In  Roper  v.  Simmons,49  the  Court  cited 


39.  Id.  at  555. 

40.  In  re  Gault,  387  U.S.  1,  13,  29  (1967). 

41.  Mat 28. 

42.  Adam  Liptak,  Supreme  Court  Set  to  Hear  Appeals  on  Life  in  Prison  for  Youths  Who 
Never  Killed,  N.Y.  Times,  Nov.  8,  2009,  at  A24,  available  at  2009  WLNR  22359769. 

43.  See  Elisa  Poncz,  Rethinking  Child  Advocacy  After  Roper  v.  Simmons:  "Kids  Are  Just 
Different "  and  "Kids  Are  Like  Adults  "  Advocacy  Strategies,  6  CARDOZO  PUB.  L.  Pol' Y  &  ETHICS 
J.  273, 277  (2008)  (discussing  various  instances  when  child  advocates  should  argue  that  "kids  are 
just  different"). 

44.  Franklin  E.  Zimring,  An  American  Travesty:  Legal  Responses  to  Adolescent 
Sexual  Offending  150  (2004);  see  also  Mary  Graw  Leary,  Sexting  or  Self-Produced  Child 
Pornography?  The  Dialog  Continues — Structured  Prosecutorial  Discretion  Within  a 
Multidisciplinary  Response,  1 7  Va.  J.  Soc.  POL' Y  &  L.  486, 488  (20 1 0)  (discussing  2007  article  by 
author  that  identified  two  jurisprudence  lines  of  conflict  with  sexting,  including  "juvenile  law's 
recognition  that  juveniles  are  often  less  aware  of  the  social  harms  their  illegal  behavior  can  cause 
and  are  less  culpable"). 

45.  Catherine  Rampell,  How  Old  is  Old  Enough?,  N.Y.  Times,  Nov.  15,  2009,  at  WK5, 
available  at  2009  WLNR  22970554. 

46.  Id. 

47.  Jennifer  Ann  Drobac,  /  Can 't  to  I  Kant:  The  Sexual  Harassment  of  Working  Adolescents, 
Competing  Theories,  and  Ethical  Dilemmas,  70  ALB.  L.  Rev.  675,  679  (2007). 

48.  Jennifer  Ann  Drobac,  "Developing  Capacity" :  Adolescent  "Consent"  at  Work,  at  Law, 
and  in  the  Sciences  of  the  Mind,  10  U.C.  Davis  J.  JUV.  L.  &  Pol'y  1,  27  (2006). 

49.  543  U.S.  551  (2005).  Although  Roper  addressed  death  penalty  sentences  for  juveniles, 
the  Court  recently  addressed  another  case  dealing  with  juvenile  life  sentences  that  some  see  as  "the 
Brown  v.  Board  of  Education  of  juvenile  law."  Liptak,  supra  note  42;  see  also  Catherine 
Arcabascio,  Sexting  and  Teenagers:   OMG  R  U  Going  2  Jail???,  16  RICH.  J.L.  &  TECH.  1,  4-5 


306  INDIANA  LAW  REVIEW  [Vol.  44:301 


evidence  that  children  are  different  from  adults  in  terms  of  maturity,  vulnerability 
to  "negative  influences  and  outside  pressures,"  and  the  fact  that  their  personalities 
are  less  developed  than  those  of  adults.50  As  an  adolescent  ages,  his  brain 
continues  to  grow  and  mature,  refining  the  ability  to  reason,  rely  on  "'gut' 
responses,"51  rationalize,  and  assess  risky  situations.52  This  process  continues 
well  into  a  person's  twenties.53  Furthermore,  a  teenager's  neurological  features 
are  also  less  developed  than  those  of  a  person  in  his  twenties.54  The  younger  the 
individuals  are,  the  less  able  they  are  to  grasp  risks  or  comprehend  the  result  of 
taking  those  risks.55  Older  teens  face  outside  influences  on  their  judgment,  such 
as  "peer  and  parental  influence,  temporal  perception  and  risk  perception,"  that 
affect  them  more  than  they  would  affect  similarly  situated  adults.56  This 
discrepancy  leads  to  a  tendency  for  teenagers  to  favor  thinking  about  their 
immediate  circumstances  and  "demonstrate  a  preference  for  sensation-seeking."57 
Research,  however,  has  not  provided  a  clear  marker  of  when  children  become 
adults.58  Indeed,  studies  have  confirmed  what  "[a]ny  parent  of  a  teenager  will  tell 
you  that,  no  matter  how  smart  [his  or  her]  teenager  is,  odds  are  that  he  or  she  will 
have  lapses  in  judgment  during  those  hormone-driven,  development  years"59  and 
that  some  teens  grow  up  faster  than  others.  Of  note  is  the  finding  that  children 
and  adults  possess  more  similar  cognitive  abilities  than  previously  thought.60 
Cognitive  ability  alone,  however,  is  not  the  only  factor  in  juvenile 
decisionmaking.61  The  other  decisionmaking  skills  that  separate  and  illustrate 
different  priorities  of  juveniles  and  adults  also  help  to  explain  why  teens  may  be 


(2010),  available  at  http://jolt.richmond.edu/vl6i3/articlel0.pdf  (discussing  Roper  and  teenage 
brain  development);  Marsha  Levick  &  Kristina  Moon,  Prosecuting  Sexting  as  Child  Pornography : 
A  Critique,  44  Val.  U.  L.  Rev.  1035  (2010)  (referencing  Roper  and  stating  that  the  courts  have 
looked  towards  juvenile  scientific  research  and  found  that  "child  offenders  [are]  less  culpable  and 
more  capable  of  reform"). 

50.  Roper,  543  U.S.  at  569-70. 

51.  Drobac,  supra  note  48,  at  15  (quoting  Sarah  Spinks,  One  Reason  Teens  Respond 
Differently  to  the  World:  Immature  Brain  Circuitry,  in  INSIDE  THE  Teenage  Brain,  FRONTLINE, 
ava//a^/ea/http://wvv^w.pbs.org/wgbh/pages/frontline/shows/teenbrain/work/onereason.html). 

52.  Id.  at  12-19. 

53.  Mat  19. 

54.  See  id.  at  16-18  (discussing  new  research  findings  regarding  the  maturation  process  of 
individuals'  neurological  development). 

55.  Mat 25-26. 

56.  Id.  at  26-27  (quoting  Jennifer  L.  Woolard,  Capacity,  Competence,  and  the  Juvenile 
Defendant,  in  CHILDREN,  SOCIAL  SCIENCE,  AND  THE  Law  270  (Bette  L.  Bottoms  et  al.  eds.,  2002)). 

57.  Drobac,  supra  note  47,  at  715  (citing  Elizabeth  Caufftnan  &  Laurence  Steinberg,  The 
Cognitive  and  Affective  Influences  on  Adolescent  Decision-Making,  68  TEMP.  L.  Rev.  1 763,  1 773 
(1995)). 

58.  Rampell,  supra  note  45. 

59.  Arcabascio,  supra  note  49,  at  4-5. 

60.  Drobac,  supra  note  47,  at  714  (citing  Cauffman  &  Steinberg,  supra  note  56,  at  1768). 

61.  Id. 


2010]  SEXTING  307 


more  willing  to  engage  in  what  many  adults  would  define  as  risky  behavior.62 

Notwithstanding  this  research,  the  idea  that  "kids  are  just  different"63  does  not 
permeate  all  state  and  federal  statutes.  This  is  especially  true  in  terms  of 
registering  juveniles  as  sex  offenders.  Critics  of  juvenile  registration  point  out 
that  this  practice  conflicts  with  the  privacy  and  rehabilitation  goals  of  the  juvenile 
court  system.64  Nevertheless,  a  trend  of  grouping  juvenile  and  adult  sex  offenders 
exists  in  recent  state  law  provisions.65  Before  the  Adam  Walsh  Child  Protection 
and  Safety  Act  of  2006  ("Adam  Walsh  Act")66  passed,  "[thirty-two]  states 
required  youth  adjudicated  in  juvenile  court  to  register"  if  convicted  of  a  sex 
offense.67  However,  these  statutes  vary  significantly  from  state  to  state.68 
Notably,  not  all  of  the  states  have  required  juvenile  information  to  be  made 
available  to  the  general  public.69 

Recent  federal  enactments  have  altered  juvenile  registry  requirements. 
Specifically,  the  Adam  Walsh  Act  placed  adult  and  juvenile  offenders  on  the 
same  registries.70  Prior  to  the  Adam  Walsh  Act,  juveniles  were  only  required  to 
register  if  they  were  "prosecuted  and  convicted  as  adults."71  Title  I  of  the  Adam 
Walsh  Act,  the  Sex  Offender  Registration  and  Notification  Act  (SORNA),72 
applies  the  term  "convicted"  to  adjudicated  delinquency;  it  only  applies  "if  the 
offender  is  at  least  fourteen  years  old  and  the  offense  adjudicated  is  comparable 
or  more  severe  than  the  federal  crime  of  aggravated  sexual  assault,  or  if  the 
offender  made  an  attempt  or  was  involved  in  a  conspiracy  to  commit  such  a 
crime."73    The  guidelines  define  "aggravated  sexual  abuse"  according  to  18 


62.  Mat  714-15. 

63.  See  Poncz,  supra  note  43,  at  273. 

64.  Markman,  supra  note  29,  at  283-84. 

65.  Id.  at  280. 

66.  42  U.S.C.  §  16901  (2006  &  Supp.  2008). 

67.  Ctr.  for  Sex  Offender  Mgmt.,  Section  7:  The  Legal  &  Legislative  Response,  in  The 
Effective  Management  of  Juvenile  Sex  Offenders  in  the  Community  (on  file  with  author). 

68.  Britney  M.  Bowater,  Comment,  Adam  Walsh  Child  Protection  and  Safety  Act  of  2006: 
Is  There  a  Better  Way  to  Tailor  the  Sentences  of  Juvenile  Sex  Offenders?,  57  CATH.  U.L.  REV.  8 1 7, 
830  (2008)  (citing  Elizabeth  Garfmkle,  Comment,  Coming  of  Age  in  America:  The  Misapplication 
of  Sex-Offender  Registration  and  Community-Notification  Laws  to  Juveniles,  9 1  Cal.  L.  Rev.  1 63 , 
177-79(2003)). 

69.  Ctr.  for  Sex  Offender  Mgmt.,  supra  note  67. 

70.  Neil  F.  Wilson,  Note,  No  Child  Left  Behind:  The  Adam  Walsh  Act  and  Pennsylvania 
Juvenile  Sex  Offenders,  70  U.  PlTT  L.  REV.  327, 336  (2008);  see  also  Leary,  supra  note  14,  at  45-46 
(discussing  Adam  Walsh  Act  and  arguing  that  it  should  not  prevent  a  juvenile  court  response  when 
juveniles  transmit  images). 

7 1 .  Ctr.  for  Sex  Offender  Mgmt.,  supra  note  67. 

72.  42  U.S.C.  §  1691 1  (2006);  SORNA,  Office  of  Justice  Programs,  http://www.ojp.usdoj. 
gov/smart/sorna.htm  (last  visited  July  25,  2010);  see  also  Arcabascio,  supra  note  49,  at  9  n.37 
(discussing  Adam  Walsh  Act). 

73.  Wilson,  supra  note  70,  at  332  (citing  42  U.S.C.  §  1691 1). 


308  INDIANA  LAW  REVIEW  [Vol.  44:301 


U.S.C.  §  2241. 74  According  to  the  United  States  Code,  aggravated  sexual  abuse 
is  performed  through  force,  by  rendering  the  victim  unconscious,  or  by 
committing  a  sexual  act  on  a  child  under  the  age  of  twelve.75  It  is  important  to 
note,  though,  that  SORNA  merely  "defines  minimum  standards."76  Furthermore, 
it  requires  registration  for  juveniles  who  are  convicted  in  adult  court  for  a  sexual 
offense,77  such  as  "offenses  whose  gravamen  is  creating  or  participating  in  the 
creation  of  sexually  explicit  visual  depictions  of  persons  below  the  age  of  18, 
making  such  depictions  available  to  others,  or  having  or  receiving  such 
depictions."78 

II.  Child  Pornography  Laws  and  the  Issue  of  Juveniles 
Creating  Pornography 

Child  pornography  is  outlawed  everywhere  in  the  United  States.79  Tragically, 
the  volume  of  child  pornography  in  existence  has  been  growing  over  the  past  two 
decades.80  The  Internet  has  clearly  facilitated  this  disturbing  trend,  as  evidenced 
by  the  thousands  of  child  pornography  images  uploaded  to  the  Web.81 

A.   The  Supreme  Court's  Response  to  Child  Pornography  Statutes 

The  First  Amendment  generally  provides  broad  protection  to  speech,  but  the 
Supreme  Court  has  acknowledged  a  number  of  exceptions  to  this  protection.82 
Specifically,  the  Court  has  held  that  the  First  Amendment  does  not  protect 
obscene  material.83  In  Miller  v.  California,  the  Court  determined  that  material 
was  obscene  if  it  met  three  requirements.84  Previously,  the  Court  had  held  that 
a  state  could  not  "mak[e]  mere  private  possession  of  obscene  material  a  crime."85 


74.  Lori  McPherson,  Practitioner's  Guide  to  the  Adam  Walsh  Act,  20  Nat'l  Ctr.  FOR 
Prosecution  of  Child  Abuse  Update,  nos.  9-10,  at  2-3  (2007),  available  at  http://www. 
ojp.usdoj.gov/smart/pdfs/practitioner_guide_awa.pdf. 

75.  18  U.S.C.  §  2241  (2006  &  Supp.  2009). 

76.  Office  of  Justice  Programs,  The  National  Guidelines  for  Sex  Offender 
Registration  and  Notification  1,  16,  available  at  http://www.ojp.usdoj.gov/smart/pdfs/final_ 
sornaguidelines.pdf  (last  visited  Sept.  29,  2010). 

77.  Id.  at  15-16. 

78.  Id.  at  20. 

79.  ZlMRlNG,  supra  note  44,  at  20. 

80.  Leary,  supra  note  14,  at  8  (citing  Internet  Porn  'Increasing  Child  Abuse,'  The 
Guardian  (Jan.  12,  2004),  http://society.guardian.co.Uk/children/story/0, 1074, 1121332,00. 
html). 

81.  Id. ;  Leary,  supra  note  44,  at  520-2 1 . 

82.  See  Kyle  Duncan,  Child  Pornography  and  First  Amendment  Standards,  76  Miss.  L.J. 
677,  679-686  (2007)  (discussing  the  Supreme  Court's  First  Amendment  exceptions). 

83.  Miller  V.California,  413  U.S.  15,23(1973). 

84.  Id.  at  24  (stating  that  the  image  must  "appeal  to  the  prurient  interest  in  sex  ...  in  a 
patently  offensive  way  .  .  .  and  which,  taken  as  a  whole,  do[es]  not  have  serious  literary,  artistic, 
political,  or  scientific  value"). 

85.  Stanley  v.  Georgia,  394  U.S.  557,  568  (1969). 


2010]  SEXTING  309 


The  Supreme  Court  first  tackled  child  pornography  laws  in  New  York  v. 
Ferber}6  In  Ferber,  the  Court  held  that  the  First  Amendment  did  not  protect 
child  pornography.87  Two  decades  after  Ferber,  in  Ashcroft  v.  Free  Speech 
Coalition,  the  Court  held  that  "virtual"  child  pornography  and  pornography 
involving  actors  who  look  like  minors  is  constitutionally  protected  because  it 
"records  no  crime  and  creates  no  victims  by  its  production."88  The  Court  also 
reiterated  the  need  for  child  pornography  statutes  in  both  Ferber  and  Free  Speech 
Coalition}9 

In  Free  Speech  Coalition,  the  Court  stated  that  "Ferber  upheld  a  prohibition 
on  the  distribution  and  sale  of  child  pornography"  because  it  was  "a  permanent 
record  of  a  child's  abuse"  and  "each  new  publication  of  the  speech  would  cause 
new  injury  to  the  child's  reputation  and  emotional  well-being."90  Additionally, 
the  Court  noted  that  "the  State  had  an  interest  in  closing  the  distribution  network" 
in  order  to  "dry  up  the  market  for  this  material."91  Distinguishing  the  two  cases, 
the  Court  stated  that  Ferber  had  refused  to  afford  child  pornography  First 
Amendment  protection  not  because  of  the  content  of  the  communication,  but 
because  of  how  it  was  created.92  Additionally,  the  Court  rejected  the 
government's  argument  that  this  material  could  be  banned  because  it  "whets  the 
appetite  of  pedophiles  and  encourages  them  to  engage  in  illegal  conduct."93  The 
Court  reiterated  that  legislatures  could  not  base  statutes  on  the  appeal  of  banning 
certain  thoughts94  and  that  child  pornography  laws  lie  outside  the  scope  of  First 
Amendment  protection  because  of  the  recorded  crime  and  harm  to  the  victim.95 

B.  Minors  Producing  Pornography 

Although  sexting  is  a  new  legal  phenomenon,96  at  least  two  academics  have 
addressed  the  value,  if  any,  of  charging  juveniles  with  child  pornography  crimes 
prior  to  the  term  gaining  widespread  use.97  Those  advocating  a  "therapeutic 
approach"98  acknowledge  that  state  child  pornography  laws  "apply  to  any 
pornographic  depictions  of  a  minor"  and  "do  not  exempt  cases  where  minors 


86.  458  U.S.  747(1982). 

87.  Id.  at  764. 

88.  Ashcroft  v.  Free  Speech  Coal.,  535  U.S.  234,  250  (2002). 

89.  Id.  at  244-45;  Ferber,  458  U.S.  at  756-57. 

90.  Free  Speech  Coal,  535  U.S.  at  249. 

91.  Id.  at  252. 

92.  Id.  at  251-52. 

93.  Id.  at  253. 

94.  Id.  (quoting  Stanley  v.  Georgia,  394  U.S.  577,  566  (1969)). 

95.  See  Smith,  supra  note  14,  at  518-21  (discussing  the  Supreme  Court's  reasoning  for 
upholding  child  pornography  laws  that  cause  visual  harm  and  criminal  acts). 

96.  Richards  &  Calvert,  supra  note  5,  at  1-4. 

97.  Compare  Leary,  supra  note  14,  with  Smith,  supra  note  14. 

98.  Smith,  supra  note  14,  at  541 . 


3 1 0  INDIANA  LAW  REVIEW  [Vol.  44:30 1 


produce  or  disseminate  pornographic  images  of  themselves."99  The  laws  are  often 
separated  into  "creation,"100  "possession,"101  and  "distribution"  102  categories.103 
These  statutes  prohibit  material  involving  minors  that  is  obscene104  or  depicts 
sexual  conduct,  105  abuse,106  nudity,107  or  child  pornography.108    The  statutory 


99.   Mat  513. 

100.  See,  e.g.,  Ga.  Code  ANN.  §  16- 12- 100(b)(1)  (2010)  ("It  is  unlawful  for  any  person 
knowingly  to  employ,  use,  persuade,  induce,  entice,  or  coerce  any  minor  to  engage  in  or  assist  any 
other  person  to  engage  in  any  sexually  explicit  conduct  for  the  purpose  of  producing  any  visual 
medium  depicting  such  conduct."). 

101.  See,  e.g. ,  id.  §  1 00(b)(8)  ("It  is  unlawful  for  any  person  knowingly  to  possess  or  control 
any  material  which  depicts  a  minor  or  a  portion  of  a  minor's  body  engaged  in  any  sexually  explicit 
conduct."). 

102.  See,  e.g.,  id.  §  100(b)(6)  ("It  is  unlawful  for  any  person  knowingly  to  advertise,  sell, 
purchase,  barter,  or  exchange  any  medium  which  provides  information  as  to  where  any  visual 
medium  which  depicts  a  minor  or  a  portion  of  a  minor's  body  engaged  in  any  sexually  explicit 
conduct  can  be  found  or  purchased."). 

1 03 .  Shannon  Shafron-Perez,  Comment,  A  verage  Teenager  or  Sex  Offender?  Solutions  to  the 
Legal  Dilemma  Caused  by  Sexting,  26  J.  MARSHALL  J.  COMPUTER  &  INFO.  L.  43 1 ,  434  (2009). 

1 04.  See,  e.g. ,  Ala.  Code  §  1 3  A- 1 2- 1 97  (2006  &  Supp.  20 1 0).  This  portion  of  the  Alabama 
Code  provides  that 

[a]ny  person  who  knowingly  films,  prints,  records,  photographs  or  otherwise  produces 
any  obscene  matter  that  contains  a  visual  depiction  of  a  person  under  the  age  of  1 7  years 
engaged  in  any  act  of  sado-masochistic  abuse,  sexual  intercourse,  sexual  excitement, 
masturbation,  breast  nudity,  genital  nudity,  or  other  sexual  conduct  shall  be  guilty  of  a 
Class  A  felony. 

105.  See,  e.g.,  Ind.  Code  §  35-42-4-4(c)  (2010).  This  section  of  the  Indiana  Code  provides 
that 

[a]  person  who  knowingly  or  intentionally  possesses:  (1)  a  picture;  (2)  a  drawing;  (3) 
a  photograph;  (4)  a  negative  image;  (5)  undeveloped  film;  (6)  a  motion  picture;  (7)  a 
videotape;  (8)  a  digitized  image;  or  (9)  any  pictorial  representation;  that  depicts  or 
describes  sexual  conduct  by  a  child  who  the  person  knows  is  less  than  sixteen  ( 1 6)  years 
of  age  or  who  appears  to  be  less  than  sixteen  ( 1 6)  years  of  age,  and  that  lacks  serious 
literary,  artistic,  political,  or  scientific  value  commits  possession  of  child  pornography, 
a  Class  D  felony. 

106.  See,  e.g.,  Mich.  Comp.  Laws  Ann.  §  750.145c(m)  (West,  Westlaw  through  2010 
legislation).  This  section  of  the  Michigan  Code  defines  "child  sexually  abusive  material"  as 

any  depiction,  whether  made  or  produced  by  electronic,  mechanical,  or  other  means, 
including  a  developed  or  undeveloped  photograph,  picture,  film,  slide,  video,  electronic 
visual  image,  computer  diskette,  computer  or  computer-generated  image,  or  picture,  or 
sound  recording  which  is  of  a  child  or  appears  to  include  a  child  engaging  in  a  listed 
sexual  act;  a  book,  magazine,  computer,  computer  storage  device,  or  other  visual  or 
print  or  printable  medium  containing  such  a  photograph,  picture,  film,  slide,  video, 
electronic  visual  image,  computer,  or  computer-generated  image,  or  picture,  or  sound 
recording;  or  any  reproduction,  copy,  or  print  of  such  a  photograph,  picture,  film,  slide, 
video,  electronic  visual  image,  book,  magazine,  computer,  or  computer-generated 


2010]  SEXTING  311 


language  may  differ  slightly,109  but  it  still  encompasses  "self-produced  child 
pornography."110  Conviction  under  child  pornography  statutes  carries  severe 
penalties. 1 1 1  Creating,  distributing,  and  possessing  child  pornography  may  result 
in  jail  time  and  may  also  require  registration  on  the  applicable  state  sex  offender 
registry,  a  penalty  that  could  potentially  prevent  future  rehabilitation.112 

Over  the  past  several  years,  prosecutors  have  more  frequently  focused  their 
efforts  on  offenders  who  are  minors  when  handling  child  pornography  cases.113 
"Self-exploitation"  images  of  children  appeared  online  more  frequently  with  the 
advent  of  computer  cameras.114  Similarly,  state  laws  have  subjected  teens  to 
penalties  for  sending  pornographic  videos  of  themselves  to  other  people.  For 
example,  the  language  of  Florida's  pornography  laws  is  neither  unique  nor  varied 
compared  to  other  states.115  In  A.H.  v.  State,116  a  case  extensively  discussed  in 
recent  articles  addressing  sexting,117  a  sixteen-year-old  girl  and  her  seventeen- 


image,  or  picture,  other  visual  or  print  or  printable  medium,  or  sound  recording. 

107.  See,  e.g.,  Ohio  Rev.  Code  Ann.  §  2907.323(A)(1)  (West,  Westlaw  through  2010 
legislation)  ("No  person  shall . . .  [p]hotograph  any  minor  who  is  not  the  person's  child  or  ward  in 
a  state  of  nudity,  or  create,  direct,  produce,  or  transfer  any  material  or  performance  that  shows  the 
minor  in  a  state  of  nudity  . .  ."). 

108.  See,  e.g.,  Okla.  Stat.  Ann.  tit.  21,  §  1021(A)(3)  (West,  Westlaw  through  2010 
legislation)  ("Every  person  who  willfully  and  knowingly  either. . .  [w]rites,  composes,  stereotypes, 
prints,  photographs,  designs,  copies,  draws,  engraves,  paints,  molds,  cuts,  or  otherwise  prepares, 
publishes,  sells,  distributes,  keeps  for  sale,  knowingly  downloads  on  a  computer,  or  exhibits  any 
obscene  material  or  child  pornography  .  .  ."). 

109.  Shafron-Perez,  supra  note  103,  at  434. 

1 10.  Smith,  supra  note  14,  at  5 12- 13  (acknowledging  that  Professor  Leary's  article,  supra  note 
14,  correctly  points  out  that  minors  in  a  "cell  phone  porn"  case  had  violated  child  pornography 
laws). 

111.  Mat  508. 

112.  Id.  at  536-37;  see  also  W.  Jesse  Weins  &  Todd  C.  Hiestand,  Sexting,  Statutes,  and  Saved 
by  the  Bell:  Introducing  a  Lesser  Juvenile  Charge  with  an  "Aggravating  Factors  "  Framework, 
11  Tenn.  L.  Rev.  1,  28-29  (2009)  (agreeing  with  Professor  Smith's  assessment  of  the  issue). 

113.  Amy  F.  Kimpel,  Using  Laws  Designed  to  Protect  as  a  Weapon:  Prosecuting  Minors 
Under  Child  Pornography  Laws,  34  N.Y.U.  REV.  L.  &  Soc.  CHANGE  299,  301-02  (2010). 

1 14.  See  Leary,  supra  note  14,  at  18-19. 

115.  Fla.  Stat.  Ann.  §  827.071  (West,  Westlaw  through  2010  legislation)  ("A  person  is 
guilty  of  the  use  of  a  child  in  a  sexual  performance  if,  knowing  the  character  and  content  thereof, 
he  or  she  employs,  authorizes,  or  induces  a  child  less  than  1 8  years  of  age  to  engage  in  a  sexual 
performance  or,  being  a  parent,  legal  guardian,  or  custodian  of  such  child,  consents  to  the 
participation  by  such  child  in  a  sexual  performance");  see  also  Weins  &  Hiestand,  supra  note  1 12, 
at  4. 

1 16.  949  So.  2d  234  (Fla.  Dist.  Ct.  App.  2007). 

117.  See  Arcabascio,  supra  note  49,  at  15-19;  Clay  Calvert,  Sex,  Cell  Phones,  Privacy,  and 
the  First  Amendment:  When  Children  Become  Child  Pornographers  and  the  Lolita  Effect 
Undermines  the  Law,  1 8  CommLaw  CONSPECTUS  1 ,  49  (2009);  John  A.  Humbach,  'Sexting '  and 
the  First  Amendment,  37  HASTINGS  CONST.  L.Q.  433,  433-34  (2010);  Kimpel,  supra  note  1 13,  at 


312  INDIANA  LAW  REVIEW  [Vol.  44:301 


year-old  boyfriend  faced  child  pornography  charges  because  they  created  digital 
photos  of  themselves  nude  and  engaged  in  sexual  behavior.1 18  The  court  held  that 
the  state  had  a  compelling  interest  "in  preventing  the  production  of  these 
photographs  and  criminal  prosecution  was  the  least  intrusive  means  of  furthering 
the  [sjtate's  compelling  interest."119  Furthermore,  the  court  stated  that  the 
distribution  of  the  photographs  eliminated  the  minors'  reasonable  expectation  of 
privacy.120  A  decade  earlier,  another  Florida  appellate  court  held  that  the  state's 
compelling  interest  in  protecting  minors  was  different  when  two  minors  had 
consented  to  sexual  intercourse.121  In  that  case,  State  v.  A.R.S.,  the  fifteen-year- 
old  male  minor  had  created,  possessed,  and  shown  to  a  third  person  a  sexually 
explicit  videotape  of  himself  and  a  female  minor.122  The  court  reversed  the  trial 
court's  dismissal  of  the  charges  and  reasoned  that  the  statute's  purpose  was  "to 
protect  minors  from  exploitation  from  anyone,"  including  other  minors.123 

Legislative  policy  has  relied  heavily  on  stereotypes  when  addressing  how  to 
handle  sex  offenders.124  This  practice  has  created  legislative  constructions 
utilizing  broad  terms  that  encompass  a  wide  variety  of  conduct.125  The 
stereotypes  and  broad  language  also  reinforce  the  notion  that  states  should  punish 
a  juvenile  sex  offender  under  the  same  rationale  as  an  adult  offender,  even  if 
empirical  or  scientific  evidence  does  not  support  similar  types  of  punishments.126 

C.  Addressing  Age  of  Consent  and  Child  Pornography  Laws 

As  illustrated,  prosecutors  have  generally  not  extended  the  rationale  that 
because  "two  teenagers  of  comparable  age  [may]  engage  in  an  act  of  voluntary 
sexual  intercourse,"127  they  can  therefore  legally  record,  photograph,  or  visually 


300;  Leary,  supra  note  14,  at  4;  Smith,  supra  note  14,  at  513  n.32;  Weins  &  Hiestand,  supra  1 12, 
at  4-5;  Wood,  supra  note  7,  at  170;  Jesse  Michael  Nix,  Study  Note,  Unwholesome  Activities  in  a 
Wholesome  Place:  Utah  Teens  Creating  Pornography  and  the  Establishment  of  Prosecutorial 
Guidelines,  1 1  J.L.  &  Fam.  Stud.  183,  188-89  (2008);  Sarah  Wastler,  Student  Article,  The  Harm 
in  "Sexting"?:  Analyzing  the  Constitutionality  of  Child  Pornography  Statutes  that  Prohibit  the 
Voluntary  Production,  Possession,  and  Dissemination  of  Sexually  Explicit  Images,  33  Harv.  J.L. 
&  Gender  687,  694-95  (2010). 

118.  A.H.,  So.  2d  at  235. 

119.  Id. 

120.  Id.  ati37;  see  also  Weins  &  Hiestand,  supra  note  1 12,  at  4-5. 

121.  State  v.  A.R.S.,  684  So.  2d  1383,  1387  (Fla.  Dist.  Ct.  App.  1996). 

122.  Id.  at  1384. 

123.  Id.  at  1387  (citing  Schmitt  v.  State,  590  So.  2d  404,  412  (Fla.  1991)). 

1 24.  ZIMRING,  supra  note  44,  at  xiii. 

125.  See  id.  at  1 1-13  (discussing  juvenile  state  statutes  that  closely  parallel  adult  statutes  and 
statutes  worded  broadly  that  capture  unintended  conduct). 

1 26.  See  id.  at  xiii;  cf  Smith,  supra  note  1 4,  at  5 1 4- 1 5  (discussing  severe  punishments  minors 
may  face  if  prosecuted  under  child  pornography  statutes). 

127.  Charles  A.  Phipps,  Misdirected  Reform:    On  Regulating  Consensual  Sexual  Activity 
Between  Teenagers,  12  CORNELL  J.L.  &  PUB.  Pol'y  373,  390  (2003). 


2010]  SEXTING  313 


document  it.128  Federal  law  makes  it  illegal  for  anyone  to  send  depictions  of  any 
person  under  the  age  of  eighteen  engaged  in  sexual  acts  "across  state  lines."129 
Seemingly,  the  United  States  Code  makes  child  pornography  statutes  applicable 
to  legally  consenting  teens  who  document  their  sexual  activities.130 

At  least  one  state  court,  however,  has  reached  a  different  decision  when  faced 
with  an  age  of  consent  law  that  is  inconsistent  with  the  definition  of  a  minor  or 
child  in  its  child  pornography  laws.  In  Indiana,  one  defense  to  sexual  misconduct 
with  a  minor  is  if  the  accused  believed  that  the  individual  was  at  least  sixteen 
years  old.131  The  statute  prohibiting  the  provision  of  obscene  matter  or  child 
pornography  to  minors  through  electronic  means,  however,  defines  a  child  as  less 
than  eighteen  years  old.132  The  Indiana  Court  of  Appeals  addressed  this 
dichotomy  in  Salter  v.  State,  a  case  in  which  an  adult  male  defendant  sent 
"pictures  of  his  genitals"  to  a  sixteen-year-old  female  minor  who  had  sent  him 
thirty-eight  images  of  herself  in  various  stages  of  nudity.133  The  court  held  that 
the  "dissemination  of  matter  harmful  to  minors"  statute  was  too  vague  because 
it  did  not  afford  the  defendant  fair  notice  that  the  images  would  be  harmful  to  a 
sixteen-year-old  minor  when  read  in  light  of  the  age  of  consent  law.134 

Similarly,  in  Pennsylvania,  the  age  of  consent  is  sixteen,135  but  the  state  still 
defines  a  child  as  anyone  under  the  age  of  eighteen.136  In  Commonwealth  v. 
Kitchen,  the  trial  court  convicted  an  adult  male  under  Pennsylvania's  child 
pornography  laws  and  sentenced  him  to  serve  two  to  five  years  for  each  count  of 
taking  and  possessing  nude  photographs  of  his  sixteen-year-old  girlfriend.137  The 
defendant  argued  that  because  he  and  the  victim  had  legally  lived  together  for 
eighteen  months  and  had  a  child  together,   the  application   of  the  child 


1 28.  Contra  Smith,  supra  note  14,  at  524-25;  Weins  &  Hiestand,  supra  note  1 1 2,  at  50  n.345. 

129.  Michael  Reynolds,  Note,  Depictions  of  the  Pig  Roast:  Restricting  Violent  Speech  Without 
Burning  the  House,  82  S.  Cal.  L.  Rev.  341,  380  (2009)  (citing  18  U.S.C.  §  2252  (2006  &  Supp. 
2008)). 

130.  Id. 

131.  Ind.  Code  §  35-42-4-9(c)  (2008). 

132.  Id  §  35-49-3-3(b)(3). 

133.  Salter  v.  State,  906  N.E.2d  212,  214,  221  (Ind.  Ct.  App.  2009).  The  court  found  that 
because  "Indiana's  possession  of  child  pornography  statute  only  extends  to  children  under  sixteen," 
the  defendant  could  not  be  found  guilty  of  possession  of  child  pornography.  Id.  at  22 1 .  This  case 
example  illustrates  the  problem  of  interpreting  age  of  consent  laws  that  conflict  with  child 
pornography  laws,  but  it  does  not  stand  for  the  proposition  that  penalties  should  be  lessened  when 
an  adult  is  involved.  See,  e.g.,  Leary,  supra  note  14,  at  507  (stating  that  adults  involved  in 
producing  images  of  minors  "is  an  example  grooming  the  child  for  sexual  exploitation  at  a 
minimum"). 

134.  Salter,  9Q6N.E.2d  at 223. 

135.  18  Pa.  Cons.  Stat.  Ann.  §  3122.1  (West,  Westlaw  through  2010  legislation). 

136.  Id.  §6312. 

137.  Commonwealth  v.  Kitchen,  8 1 4  A.2d  209, 2 1 1  (Pa.  Super.  Ct.  2002),  affd,  839  A.2d  1 84 
(Pa.  2003);  see  also  Leary,  supra  note  44,  at  546  n.253  (discussing  case  for  support  that  "children 
do  not  have  the  ability  to  consent  to  being  exploited"). 


314  INDIANA  LAW  REVIEW  [Vol.  44:301 


pornography  law  to  any  minor  under  eighteen  was  overbroad  and  should  not 
apply.138  Nevertheless,  the  Pennsylvania  Superior  Court  disagreed,  holding  that 
the  legislature  had  "determined  that  children  need  to  be  protected  from  being 
victimized  through  child  pornography"  and  affirmed  the  defendant's  judgment 
of  sentence.139 

III.  Sexting 

The  advance  of  technology,  and  especially  the  proliferation  of  cell  phones 
and  text  messaging,  has  changed  the  way  individuals  interact,  date,  and  court.140 
Cameras  on  cell  phones  have  greatly  increased  the  ability  for  individuals  to  take 
pictures,  including  explicit  ones.141  In  the  last  half-decade,  cell  phone  ownership 
in  the  adolescent  population  has  skyrocketed.  Between  2004  and  2009,  the 
number  of  twelve-year-old  children  owning  cell  phones  jumped  from  eighteen 
percent  to  fifty-eight  percent.142  Furthermore,  sixty-six  percent  of  teens  that  own 
cell  phones  send  text  messages.143  Among  juveniles,  surveys  indicate  that 
somewhere  between  four144  and  twenty145  percent  of  adolescents  have  sent 
sexually  suggestive  images  via  cell  phone. 

Polls  show  that  teenage  recipients  of  sext  messages  usually  get  these 
messages  from  people  they  know.146  Generally,  sexting  occurs  in  three 
situations.147  First,  sexting  can  occur  between  "two  romantic  partners."148 
Second,  images  of  the  first  scenario  may  be  distributed  to  persons  not  in  the 
relationship.149  Third,  teenagers  may  exchange  images  as  a  form  of  flirtation  or 
in  hopes  of  beginning  a  relationship.150  Within  each  of  these  scenarios  is  a  wide 
spectrum  of  possible  behavior  ranging  from  sending  images  as  a  joke  to 
demanding  images  as  a  form  of  peer  pressure  or  worse.151 

Adults  often  enter  the  situation  when  a  school  administrator,  teacher,  or  adult 


138.  Id.  at  212. 

139.  Mat  214. 

140.  David  Brooks,  Cell  Phones,  Texts  and  Lovers,  N.Y.  TIMES,  Nov.  3,  2009,  at  A29, 
available  at  2009  WLNR  21915638. 

141 .  Leary,  supra  note  14,  at  24;  see  also  Arcabascio,  supra  note  49,  at  6-7. 

1 42 .  Amanda  Lenhart,  Pew  Internet  &  Am.  Life  Project,  Teens  and  Sexting  2  (2009), 
available  at  http ://pewresearch.org/assets/pdf7teens-and-sexting.pdf. 

143.  Id. 

144.  Id.  at  4. 

145.  Nat'l  Campaign  to  Prevent  Teen  &  Unplanned  Pregnancy,  supra  note  7,  at  1 . 

146.  See  LENHART,  supra  note  142,  at  2  (stating  that  fifteen  percent  of  teens  have  received 
such  images  from  someone  they  know). 

147.  Mat  6-8. 

148.  Mat 6. 

149.  Mat  7. 

150.  Id. 

151.  Id. 


2010]  SEXTING  315 


guardian  or  supervisor  discovers  the  images.152  School  administrators  may  be 
required  to  report  the  images  to  authorities  under  possession  of  child  pornography 
statutes  if  they  confiscate  any  phone  or  image.153  Once  the  image  is  confiscated, 
the  issue  becomes  who  to  punish.  Some  parents  push  to  have  other  participants 
in  the  images  punished154  along  with  those  who  distribute  the  images.155 
Teenagers  may  find  that  their  pictures  quickly  spread  throughout  the  school 
population,  and  they  may  face  relentless  ridicule  from  their  peers.156  In  the  past 
two  years,  stories  of  teens  sending  such  "explicit  text  messages  .  .  .  created  a 
media  frenzy,  parental  panic,  and  ultimately  a  moral  conundrum  for  the 
educational  system  and  the  courts."157 

In  response  to  the  media  uproar,  schools  have  attempted  to  create  policies 
prohibiting  sexting.158  Some  of  these  schools,  however,  have  no  procedures  in 
place  to  discipline  students  who  are  caught  sexting.159  Therefore,  they  may 
simply  resort  to  contacting  local  law  enforcement  to  address  incidents.160  Schools 
with  sexting  policies  may  also  suspend  or  expel  students  161  and  contact  law 
enforcement  due  to  concern  that  the  image  is  child  pornography.162 

Once  law  enforcement  is  involved  in  a  sexting  situation,  prosecutors  have 
been  known  to  take  or  threaten  legal  action  against  teens  for  transmitting  explicit 
images  of  themselves.163   As  with  school  procedures,  many  states  prosecuting 


152.  See,  e.g. ,  Kathleen  Kennedy  Manzo,  Administrators  Confront  Student  'Sexting ':  Schools 
Urged  to  Develop  Policies  and  Programs  to  Curb  the  Practice,  EDUC.  Wk.,  June  17,  2009,  at  8, 
available  at  2009  WLNR  12479375;  Meacham,  supra  note  1,  at  1A. 

153.  See  Ting- YiOei,  My  Students.  My  Cellphone.  My  Ordeal,  Wash.  Post,  Apr.  19,2009, 
at  Bl,  available  at  http://www.washingtonpost.com/wp-dyn/content/article/2009/04/17/ 
AR2009041702663.html  (recounting  incident  where  school  principal  faced  potential  charges  for 
not  alerting  law  enforcement  after  finding  image  on  cell  phone  and  temporarily  storing  it  on  his  cell 
phone). 

1 54.  See  Heck,  supra  note  4,  at  29. 

155.  Mary  McCarty,  Grieving  Parents  Want  Appropriate  Sexting  Penalty,  DAYTON  DAILY 
News,  Apr.  26,  2009,  at  A8,  available  at  2009  WLNR  8089092. 

156.  See  id.  (reporting  on  an  Ohio  eighteen-year-old  who  committed  suicide  after  weeks  of 
being  tormented  by  other  students  when  a  nude  picture  of  her  circulated  throughout  her  high 
school). 

157.  Sara  Jacobson,  The  Ramifications  of  Criminalizing  Teen  Sexting,  UPON  FURTHER  Review 
(Phila.  Bar  Ass'n,  Phila.,  Pa.),  July  7,  2009  (on  file  with  author). 

158.  Manzo,  supra  note  152. 

159.  Id. 

160.  Id. 

161.  Id. 

1 62.  Andrea  Billups,  School  Districts  Hope  Students  Get  the  Picture  About  'Sexting  'Dangers, 
Wash.  Times,  July  23, 2009,  at  Al ,  available  at  2009  WLNR  14048 1 5 1  (discussing  Florida  school 
district's  warning  that  students  may  be  suspended  from  school  and  arrested  under  child 
pornography  laws). 

163.  Jennifer  Golson,  A  Debate  Swirls  over  Teens '  Lurid  Pictures:  Should  Self-Portraits 
Draw  Harsh  Penalties?,  Star-Ledger,  March  29, 2009,  at  1 ,  available  at  2009  WLNR  59 1 1 079. 


316  INDIANA  LAW  REVIEW  [Vol.  44:301 


teens  still  do  not  have  laws  to  address  teens  who  privately  send  photographs  to 
one  another164  or  are  still  in  the  process  of  developing  statutory  language.165 
Judges  struggle  with  how  the  punishment  found  in  child  pornography  laws  fits 
what  justice  requires.166  Rationales  for  prosecutorial  intervention  of  teens 
creating  self-exploitation  images  of  themselves  include  harm  to  children  in 
images,167  harm  to  children  not  in  images,168  harm  to  society  and  children 
generally,169  and  deterrence  against  future  sexting.170  Specifically,  in  instances 
of  further  distribution,  intervention  is  warranted  because  harm  in  the  form  of 
"emotional  distress  and  humiliation"  results  when  the  images  are  sent  to  those 
who  were  never  intended  to  see  them.171 

A.  Sexting  Charges 

Recent  law  enforcement  cases  addressing  sext  messages  have  varied 
considerably  in  their  approaches.  This  variation  is  largely  because  teens  caught 
sexting  rarely  fit  a  specific  profile.172  In  addition,  punishments  differ  across 
jurisdictions  and  do  not  necessarily  correlate  with  the  teens'  culpability  or  any 
intent  they  exhibited. 

In  one  of  the  most  publicized  sexting  cases,  a  Pennsylvania  district  court 
prevented  a  prosecutor  from  pursuing  charges  against  three  teenage  girls  for 
possessing  or  distributing  child  pornography.173  The  school  discovered 
photographs  on  cell  phones  of  the  girls  depicting  them  as  "scantily  clad,  semi- 
nude,  and  nude."174  The  prosecutor  insisted  that  this  was  child  pornography175 


1 64.  Id. ;  see  also  Nat 'l  Conference  of  State  Legislatures,  20 1 0  Legislation  Related 
to  "Sexting"  [hereinafter  2010  Legislation],  http://www.ncsl.org/default.aspx?  Tabld=19696 
(last  visited  July  26,  2010);  Nat'l  Conference  of  State  Legislatures,  2009  "Sexting" 
Legislation  [hereinafter  2009  Legislation],  http://www.ncsl.org/default.aspx?tabid=l  7756  (last 
visited  July  26,  2010). 

165.  See  20 1 0  Legislation,  supra  note  1 64. 

1 66.  Robin  Fretwell  Wilson,  Sex  Play  in  Virtual  Worlds,  66  Wash.  &  Lee  L.  Rev.  1 1 27, 1 1 62- 
63  n.  197  (2009). 

167.  Leary,  supra  note  14,  at  9-1 1;  see  also  Nix,  supra  note  1 17,  at  184-85. 

168.  Leary,  supra  note  14,  at  12-17. 

169.  Mat  17-18. 

170.  Leary,  supra  note  14,  at  42-43;  Weins  &  Hiestand,  supra  note  112,  at  29;  see  also 
Golson,  supra  note  163. 

171.  Calvert,  supra  note  1 1 7,  at  62. 

172.  /d.  at61. 

173.  Miller  v.  Skumanick,  605  F.  Supp.  2d  634,  647  (M.D.  Pa.  2009),  aff'dsub  nom.  Miller 
v.  Mitchell,  598  F.3d  139  (3d  Cir.  2010). 

174.  Id.  at  637. 

1 75.  Two  of  the  girls  wore  bras  as  one  made  a  peace  sign  with  her  hand  and  another  spoke  on 
the  phone.  Id.  at  639.  The  other  girl  was  photographed  with  a  "towel  .  .  .  wrapped  around  her 
body,  just  below  her  breasts."  Id. 


2010]  SEXTING  317 


"because  the  girls  were  posed  'provocatively.'"176  He  also  gave  the  girls'  parents 
an  ultimatum  directing  the  girls  either  to  attend  his  education  program  designed 
to  teach  "what  it  means  to  be  a  girl  in  today's  society"  or  face  charges.177  The 
court  held  that  the  girls  and  their  parents  had  "asserted  constitutionally  protected 
activity"178  with  sufficient  likelihood  to  succeed  on  the  merits  and  issued  a 
temporary  restraining  order  enjoining  the  prosecutor  from  pursuing  sexting 
charges  against  the  minors.179  The  court,  however,  did  not  address  whether  the 
state's  child  pornography  statute  applied.180  The  parents  argued  that  the  statute 
was  inapplicable  because  the  minors  were  the  subjects  of  the  photographs  and  the 
"victims  of  the  crime."181  In  response  to  the  prosecutor's  appeal,  the  Third 
Circuit  Court  of  Appeals  affirmed  the  grant  of  preliminary  injunction182  and  stated 
that  because  the  prosecutor  was  requiring  a  minor  to  state  why  her  actions  were 
morally  wrong,  as  opposed  to  legally  wrong,  she  would  likely  prevail  on  "her 
First  Amendment  freedom  against  compelled  speech"  argument.183 

Charges  would  not  have  been  unprecedented.  Prior  to  Miller  v.  Skumanick, 
six  Pennsylvania  students  faced  charges  for  possession,  manufacture,  and 
distribution  of  child  pornography.184  Three  male  students  faced  possession 
charges  after  school  officials  found  "racy"  pictures  of  three  girls  on  a  cell  phone; 
the  three  girls  were  also  charged.185  Each  student  pled  to  misdemeanor  charges 
in  juvenile  court.186  By  pleading,  the  students  likely  avoided  more  serious 
charges  that  could  have  resulted  if  they  had  been  prosecuted  in  adult  court. 

Sexting  has  resulted  in  threatened  jail  time  when  an  adult  was  involved  in  two 
other  states.  In  Oregon,  a  sixteen-year-old  female  took  sexually  explicit  video  of 
another  female  minor  with  the  encouragement  of  a  thirty-one  year-old  adult 
male.187  The  juvenile  defendant  had  shown  the  video  to  others.188  Through  a  plea 


176.  Id. 

177.  Mat 638-40. 

1 78.  Id.  at  644.  The  plaintiffs  filed  a  complaint  for  "violation  of  plaintiffs'  First  Amendment 
right  to  free  expression  . . .  contending]  that  the  photographs  in  question  [were]  not  in  violation 
of  any  obscenity  law."  Id.  at  640.  The  plaintiffs  also  alleged  that  their  "First  Amendment  right  to 
be  free  from  compelled  expression"  and  the  parents'  "Fourteenth  Amendment  substantive  due 
process  right  as  parents  to  direct  their  children's  upbringing"  had  been  violated.  Id. 

179.  Id.  at  644,  647. 

1 80.  Id.  at  645-46.  The  court  noted  that  even  if  the  depictions  were  "prohibited  sexual  acts," 
the  plaintiffs  were  reasonably  likely  to  succeed  on  the  merits  because  there  was  no  evidence  the 
teens  had  disseminated  the  images.  Id. 

181.  Mat  645. 

182.  Miller  v.  Mitchell,  598  F.3d  139,  155  (3d  Cir.  2010). 

183.  Id.  at  152. 

1 84.  Paula  Reed  Ward,  DA  's  Case  over  Teen  'Sexting '  Draws  Ire  of  Parents,  PITTSBURGH 
Post-Gazette,  March  26, 2009,  at  Al,  available  at  2009  WLNR  565 1200. 

185.  Id. 

186.  Id. 

187.  Tobias,  supra  note  16. 

188.  Id. 


3 1 8  INDIANA  LAW  REVIEW  [Vol.  44:30 1 


deal,  the  sixteen-year-old  served  two  months  in  a  state  prison,  received 
counseling,  and  did  not  have  to  register  as  a  sex  offender.189  In  Vermont,  the 
court  allowed  an  eighteen-year-old  high  school  student  to  plead  guilty  to  lesser 
charges  after  asking  "two  teenage  girls"  to  "perform[  ]  sex  acts  and  send  him  the 
results."  190  The  lesser  charges  entailed  a  "five-year  deferred  sentence."191 

Two  instances  in  Wisconsin  illustrate  a  more  pernicious  situation:  minors 
engaged  in  predatory  conduct.192  In  February  2009,  a  high  school  student  "was 
accused  ...  of  using  the  Facebook  [website]  to  coerce  male  schoolmates  into 
sexual  encounters"  after  deceiving  over  thirty  male  classmates  into  sending  nude 
pictures  of  themselves  to  him  by  posing  online  as  a  female  classmate.193  The 
then-eighteen-year-old  student  threatened  to  distribute  the  pictures  if  his 
classmates  did  not  perform  sex  acts  with  him.194  The  court  sentenced  him  to 
prison  for  fifteen  years.195  In  another  Wisconsin  case,  a  fourteen-year-old  high 
school  student  threatened  at  least  seven  girls  into  sending  him  explicit  photos  of 
themselves.196  This  was  only  several  months  after  he  was  adjudicated  for 
"second-degree  sexual  assault  of  a  child."197  The  school  expelled  the  boy,  and  he 
faced  charges  in  the  children's  court.198 

B.  State  Legislative  Responses  to  Sexting 

In  2009,  twelve  states  introduced  or  passed  legislation  addressing  sexting.199 
As  of  September  2010,  sixteen  states  had  either  "introduced  or  [were] 
considering"  sexting  bills.200     The  proposals  and  enacted  laws  have  been 


189.  Id. 

190.  John  Curran,  Vt.  Teen  Pleads  in  Sex  Case,  THE  TIMES,  Sept.  4,  2009,  at  Al  1,  available 
at  2009  WLNR  17378056.  The  plea  deal  was  in  response  to  action  from  the  Vermont  legislature 
to  prevent  felony  charges  from  being  sought  against  minors  in  sexting  cases.  Id. 

191.  Id. 

1 92.  Leary,  supra  note  44,  at  54 1 . 

1 93.  Tom  Kertscher,  Whitnall  Student  Accused  of  Coercing  Girls  to  Send  Nude  Photos  Has 
Prior  Record,  MILWAUKEE  JOURNAL  SENTINEL,  Oct.  1 4, 2009,  available  at  2009  WLNR  20301 834. 

1 94.  Susan  Saulny,  Sex  Predator  Accusations  Shake  a  Wisconsin  Town,  N.Y.  Times  (Nov.  1 , 
2009),  http://www.nytimes.eom/2009/02/l  1/world/americas/l  liht-1  lwisconsin.20101 124.html. 

195.  Laurel  Walker,  New  Berlin  Teen  Gets  1 5 -Year  Prison  Term  in  'Sexting'  Case:  Stand 
Posed  as  Girl,  Tricked  Victims  into  Sex,  Milwaukee  JOURNAL  SENTINEL,  Feb.  25,  2010,  at  1, 
available  a/  2010  WLNR  3949470. 

196.  Kertscher,  supra  note  193. 

197.  Id. 

198.  Id. 

1 99.  2009  Legislation,  supra  note  1 64. 

200.  20 1 0  Legislation,  supra  note  1 64. 


2010]  SEXTING  319 


questioned,201  criticized,202  and  applauded.203 

Initially,  several  legislators  proposed  steps  that  focused  more  on  age  than 
conduct  by  suggesting  age  gap  provisions.204  An  age  gap  provision  provides  a 
window  in  which  two  minors  relatively  close  in  age  will  avoid  criminal  charges 
or  else  face  "substantially  reduced"  punishment.205  In  a  proposed  Pennsylvania 
bill,  "no  person  under  [eighteen]"  could  transmit  images  depicting  nudity  to 
another  person  four  years  younger  or  older  than  the  person  transmitting  or 
distributing  the  image.206  Minors  who  transmit  nude  images  outside  the  age  gap 
provisions  could  otherwise  have  been  adjudicated  in  an  alternative  program  and 
ordered  to  attend  "an  educational  program."207  Similarly,  Vermont's  legislature 
proposed  a  bill  in  2009  that  included  an  age  gap  provision.208  Ultimately, 
however,  most  states,  including  Vermont,209  have  chosen  not  to  follow  the  age 
gap  path.  Absent  a  deterrent  force  within  the  legislation,  state  governments  are 
likely  concerned  that  the  number  of  sexting  juveniles,  as  well  as  the  number  of 
images  created,  would  increase.210 


201 .  See  Calvert,  supra  note  1 1 7,  at  58-60  (questioning  whether  laws  addressing  sexting  can 
be  enforced  in  a  fair  way  and  suggesting  other  applicable  laws);  Wood,  supra  note  7,  at  164-65 
(applauding  Indiana  for  simply  creating  a  study  commission  to  look  into  just  responses  to  sexting). 

202.  See  Arcabascio,  supra  note  49,  at  31-40  (critiquing  Vermont,  Nebraska,  and  North 
Dakota  responses  to  sexting  and  advocating  that  states  incorporate  age  gap  provisions  to  include 
eighteen-year-old  high  school  students  in  sexting  legislation);  Nix,  supra  note  117,  at  190-92 
(criticizing  a  Utah  bill  that  focused  on  age  distinctions  rather  than  conduct  distinctions);  Weins  & 
Hiestand,  supra  note  112,  at  33-48  (discussing  Vermont,  Nebraska,  Utah,  and  Ohio  legislative 
responses  to  sexting  and  finding  inequities  in  applying  them  to  a  variety  of  situations). 

203.  See  Arcabascio,  supra  note  49,  at  32  (finding  that  "[t]he  most  important  aspect  of  the 
[Vermont]  law  [was]  that  it  remove[d]  the  criminal  behavior  from  the  grasp  of  pornography-type 
statutes  and  thereby  avoid[ed]  the  requirement  of  registration  on  the  state's  sex  offender  list"). 

204.  See  S.B.  1 121,  193d  Gen.  Assemb.,  Reg.  Sess.  (Pa.  2009)  (stating  that  no  person  under 
the  age  of  eighteen  could  transmit  an  explicit  image  by  computer  or  telecommunications  device  to 
another  minor  "who  is  not  more  than  four  years  younger  or  more  than  four  years  older");  S.B.  125, 
2009  Leg.,  Reg.  Sess.  (Vt.  2009);  see  also  Nix,  supra  note  1 1 7,  at  1 90-92  (criticizing  one  approach 
in  Utah  that  would  only  account  for  age  differences  but  not  differences  in  conduct);  Weins  & 
Hiestand,  supra  note  1 12,  at  34-37  (discussing  Vermont's  original  bill). 

205.  Daryl  J.  Olszewski,  Comment,  Statutory  Rape  in  Wisconsin:  History,  Rationale,  and  the 
Need  for  Reform,  89  Marq.  L.  Rev.  693,  706  (2006). 

206.  S.B.  1 121,  193d  Gen.  Assemb.,  Reg.  Sess.  (Pa.  2009). 

207.  Id. 

208.  S.B.  125,  2009  Leg.,  Reg.  Sess.  (Vt.  2009);  see  also  Calvert,  supra  note  1 17,  at  57-58 
(discussing  Vermont  bill  that  exempted  "  1 3-  to  1 8-year-olds"  from  child  pornography  prosecution); 
Leary,  supra  note  44,  at  555-57  (discussing  the  evolution  of  Vermont's  response  to  sexting). 

209.  See  Vt.  Stat.  Ann.  tit.  13,  §  2802b(b)(l)  (2010)  ("a  minor  who  violates  subsection  (a) 
of  this  section  shall  be  adjudicated  delinquent"). 

210.  See  Mary  Graw  Leary,  The  Right  and  Wrong  Responses  to  "Sexting",  WlTHERSPOON 
Inst.  (May  12,  2009),  http://www.thepublicdiscourse.com/2009/05/227  (arguing  that  the  images 
will  be  obtained  by  pedophiles  and  provide  a  "built-in  defense"  that  they  were  legally  obtained). 


320  INDIANA  LAW  REVIEW  [Vol.  44:301 


As  of  September  2010,  four  states  have  passed  laws  that  specifically  address 
sexting.211  These  states — Arizona,212  Connecticut,213  Illinois,214  and 
Louisiana215 — punish  any  first-time  sexting  offense,  but  they  do  so  in  slightly 
different  ways.  Louisiana's  statute  takes  a  different  approach  to  age  and  governs 
minors  sixteen  and  under.216  In  contrast,  Illinois217  and  Arizona218  statutes  govern 
minors  seventeen  and  under.  Connecticut's  law  reduces  the  child  pornography 
penalty  for  minors  between  the  ages  of  thirteen  and  seventeen  years  old  when 
they  possess  images  of  minors  between  the  ages  of  thirteen  and  fifteen  years  old 
that  were  knowingly  and  voluntarily  transmitted.219  The  largest  differences  may 
come  from  how  each  state  handles  a  sexting  incident.  For  example,  Arizona 
provides  a  defense  if  the  minor  did  not  ask  for  the  image,  attempted  to  destroy  or 
delete  it  or  reported  it  to  a  parent  or  school  official,  and  did  not  further  distribute 
it.220  In  contrast,  Louisiana  law  makes  it  an  offense  if  the  minor  distributed  an 
image  of  themselves,  but  it  permits  courts  to  "imprison[]"  minors  for  up  to  ten 
days  if  they  possess  or  distribute  an  image  of  another.221  Each  statute,  though, 
increases  punishment  if  the  minors  engage  in  additional  conduct  other  than 
simply  possessing  a  sexually  explicit  image  of  a  minor.222 

Other  states  have  also  provided  teens  with  defenses  or  lessened  the  penalties 
for  sexting.  Nebraska's  signed  bill  provides  a  defense  for  minors  in  possession 
of  sexually  explicit  images  of  one  other  child,  age  fifteen  or  older,  not  taken 
through  coercion,  and  not  further  distributed.223  Utah,224  Ohio,225  and  New 
Jersey226  have  proposed  or  signed  bills  that  either  make  a  sexting  offense  a 


211.  See  20 1 0  Legislation,  supra  note  1 64. 

212.  Ariz.  Rev.  Stat.  Ann.  §  8-309  (2010). 

213.  H.R.  5533,  2010  Leg.,  Reg.  Sess.  (Conn.  2010). 

214.  H.R.  4583,  96th  Gen.  Assemb.,  1st  Reg.  Sess.  (111.  2010). 

215.  H.R.  1357,  2010  Leg.,  36th  Reg.  Sess.  (La.  2010). 

216.  Id. 

217.  H.R.  4583,  96th  Gen.  Assemb.,  1st  Reg.  Sess.  (111.  2010). 

218.  Ariz.  Rev.  Stat.  Ann.  §§  8-201,  8-309  (2010). 

219.  H.R.  5533,  2010  Leg.,  Reg.  Sess.  (Conn.  2010). 

220.  Ariz.  Rev.  Stat.  Ann.  §  8-309(C)  (2010). 

221.  See  H.R.  1357,  2010  Leg.,  36th  Reg.  Sess.  (La.  2010)  (containing  provision  to  suspend 
the  sentence  if  the  court  allows  the  juvenile  to  perform  eighty  hours  of  community  service). 

222.  See  e.g.,  Ariz.  Rev.  Stat.  Ann.  §  8-309(D)  (2010)  (deeming  it  a  Class  3  misdemeanor 
if  a  minor  distributes  an  image  received  to  a  third  party);  H.R.  5533, 2010  Leg.,  Reg.  Sess.  (Conn. 
2010)  (requiring  a  voluntary  act  to  have  been  committed  in  order  to  be  classified  as  "sexting"); 
H.R.  4583,  96th  Gen.  Assemb.,  1st  Reg.  Sess.  (111.  2010);  H.R.  1357,  2010  Leg.,  36th  Reg.  Sess. 
(La.  2010)  (requiring  a  voluntary  act  as  well  as  increasing  the  penalty  for  additional  offenses). 

223.  Neb.  Rev.  Stat.  §§  28-813.01,  -1463.03,  -1463.05  (Supp.  2009);  see  also  Arcabascio, 
supra  note  49,  at  36-39  (discussing  Nebraska  statute). 

224.  Utah  Code  Ann.  §§76-10-1 204,  - 1 206  (West,  Westlaw  through  2010  legislation);  see 
also  Calvert,  supra  note  1 17,  at  58  (discussing  Utah  law). 

225.  H.R.  473,  128th  Gen.  Assemb.,  Reg.  Sess.  (Ohio  2010). 

226.  Assemb.  B.  1561, 214th  Leg.,  1st  Ann.  Sess.  (N.J.  20\0));seealso$B.  2926, 213th  Leg., 


2010]  SEXTING  321 


misdemeanor  or  create  a  diversionary  program  for  minors.  In  Florida,  a  house 
bill  has  been  proposed  that  makes  the  first  violation  "noncriminal"  and  requires 
payment  of  a  twenty-five  dollar  fine  and  community  service.227  The  bill, 
however,  does  not  exclude  a  minor  from  being  prosecuted  under  "the  depiction 
of  sexual  conduct  or  sexual  excitement,  and  [it]  does  not  prohibit  the  prosecution 
of  a  minor  for  stalking;"  furthermore,  it  punishes  juveniles  with  misdemeanor  and 
felony  penalties  for  subsequent  offenses.228  States  have  varied  in  the  options  left 
available  to  prosecutors;  some  states  allow  prosecutors  to  choose  whether  the 
sexting  or  child  pornography  statute  should  apply.229 

Additionally,  some  proposed  bills  offer  educational  programs  for  minors 
before  they  encounter  trouble.230  A  New  Jersey  bill  would  have  required  retail 
stores  selling  cell  phones  to  include  informational  brochures  describing  the 
dangers  of  sexting.231  A  New  York  bill  would  have  created  an  educational 
program  through  the  New  York  State  Office  of  Children  and  Family  Services  in 
order  to  promote  awareness  of  publicly  posting  or  distributing  "provocative" 
depictions  of  themselves.232 

Finally,  several  other  states  are  still  questioning  whether  legislation  can 
effectively  address  sexting.  After  contemplating  new  sexting  legislation,  these 
states  have  decided  not  to  take  any  action.233  In  Missouri,  a  provision  that  would 
have  completely  barred  juvenile  sexting  was  dropped  from  a  crime  bill.234 
Among  the  legislators'  likely  concerns  is  that  sexting  is  simply  a  fad  that  will 
fade  away  but  leave  needless  statutory  language  behind.235  Others  have  expressed 
concern  that  if  sexting  is  truly  a  widespread  problem,  it  will  not  be  possible  to 
enforce  punishments  effectively.236  It  is  less  likely  that  laws  will  be  followed  or 


2d  Ann.  Sess.  (N.J.  2009)  (identical  state  senate  bill). 

227.  H.R.  1335,  2010  Leg.,  1 12th  Reg.  Sess.  (Fla.  2010). 

228.  Id. 

229.  See  Weins  &  Hiestand,  supra  note  1 1 2,  at  47-48  (discussing  legislative  differences  among 
Nebraska,  Ohio,  Utah,  and  Vermont  statutory  schemes). 

230.  Assemb.  B.  8622,  223d  Leg.,  Reg.  Sess.  (N.Y.  2010);  Assemb.  B.  4070, 213th  Leg.,  2d 
Ann.  Sess.  (N.J.  2009). 

231.  Assemb.  B.  4070,  213th  Leg.,  2d  Ann.  Sess.  (N.J.  2009). 

232.  See  Assemb.  B.  8622,  223d  Leg.,  Reg.  Sess.  (N.Y.  2010). 

233.  Tom  Fahey,  Ad  Hoc  Panel:  'Sexting '  Does  Not  Warrant  Legislation,  UNION  Leader, 
Sept.  10,  2009,  at  8;  Missouri  General  Assembly:  What  Passed,  What  Failed,  COLUMBIA  DAILY 
Trib.  (May  16,  2009),  http://www.columbiatribune.com/news/2009/may/16/missouri-general- 
assembly-what-passed-what-failed/. 

234.  Missouri  General  Assembly:  What  Passed,  What  Failed,  supra  note  233. 

235.  See  Don  Corbett,  Let's  Talk  about  Sext:  The  Challenge  of  Finding  the  Right  Legal 
Response  to  the  Teenage  Practice  of  "Sexting, "  13  No.  6  J.  INTERNET  L.  3,  8  (2009)  (suggesting 
that  sexting  will  go  the  way  of  "acid- washed  jeans,  big  hair,  and  Nintendo"). 

236.  See  Arcabascio,  supra  note  49,  at  41  (acknowledging  the  deterrent  effect  of  charging 
juveniles  with  crimes  but  arguing  that  they  may  be  more  deterred  by  punishment  from  parents  or 
"disapproval  from  their  friends");  Calvert,  supra  note  117,  at  59-60  (discussing  the  problem  of 
enforcing  sexting  laws  and  their  potential  difficulty  in  being  a  suitable  deterrent  tool  against 


322  INDIANA  LAW  REVIEW  [Vol.  44:301 


justly  imposed  on  the  few  caught  if  the  laws  cannot  be  effectively  enforced.237 
Yet  regardless  of  whether  sexting  diminishes  or  laws  are  somewhat  more  difficult 
to  enforce,  the  legal  and  social  responses  to  sexting  must  be  forward-looking  and 
address  potentially  unjust  consequences.238 

IV.  Proposal:  Adhering  to  Rationales  Employed  by  Juvenile  Courts 

Based  on  the  totality  of  the  circumstances,  states  should  pass  legislation 
addressing  the  excessive  penalties  and  consequences  against  teens  caught 
sexting.239  Unchanged  statutes  represent  rationales  that  "focus  on  preventing 
pedophiles  and  sexual  abusers  from  stimulating  their  appetites,  protecting 
children,  and  encouraging  the  elimination  of  existing  contraband."240  Although 
any  move  to  address  minors'  sexual  activity  "stumbles  into  a  host  of  related 
issues  that  complicate  an  already  difficult  subject,"241  states  should  amend  their 
laws  to  address  recent  changes  in  technology  and  juvenile  conduct.242 

A.  Distinguish  Between  Intent  and  Actions  of  Minors 

Preventing  minors  from  initially  creating  and  distributing  sexually  explicit 
images  should  be  the  ultimate  goal  of  any  piece  of  sexting  legislation  because  it 
reduces  the  scale  of  the  issue.243  In  pursuit  of  this  goal,  however,  legislatures 
should  consider  the  role  rehabilitation  has  played  in  juvenile  law.244 

Although  much  more  research  of  juvenile  sex  offenders245  and  how  they 
compare  to  sexting  teenagers  is  needed  to  reach  any  firm  conclusions,246  initial 
surveys  on  sexting  suggest  that  a  majority  of  incidents  result  from  a  lack  of 
maturity  and  judgment,247  not  malicious  intent.   For  example,  none  of  the  Pew 


sexting). 

237.  See  Calvert,  supra  note  117,  at  59-60  (discussing  the  limited  situations  in  which 
prosecutions  may  be  brought). 

238.  Mat 60-61. 

239.  Cf.  Leary,  supra  note  44,  at  510-11  (arguing  that  teens  caught  sexting  should  be 
adjudicated  in  juvenile  court  if  prosecution  is  necessary  because  it  will  permit  rehabilitation). 

240.  Ty  E.  Howard,  Don 't  Cache  Out  Your  Case:  Prosecuting  Child  Pornography  Possession 
Laws  Based  on  Images  Located  in  Temporary  Internet  Files,  19  BERKELEY  TECH.  L.J.  1227,  1238 
(2004). 

241.  Phipps,  supra  note  127,  at  374. 

242.  But  see  Calvert,  supra  note  1 17,  at  7  (arguing  that  it  is  too  early  to  answer  the  question 
of  how  society  should  address  sexting). 

243.  See  id.  at  29;  Leary,  supra  note  14,  at  42-43. 

244.  See,  e.g. ,  Leary,  supra  note  44,  at  55 1  (advocating  for  structured  prosecutorial  discretion 
with  adjudications  in  juvenile  court  focusing  on  rehabilitation);  Weins  &  Hiestand,  supra  note  1 12, 
at  29  (advocating  a  juvenile  court  response  that  aims  to  rehabilitate  teenagers  who  sext). 

245.  See  Zimring,  supra  note  44,  at  117-18  (arguing  for  more  research  of  juvenile  sex 
offenders  in  general). 

246.  See  Humbach,  supra  note  1 1 7,  at  435,  482  n.258. 

247.  See  Calvert,  supra  note  117,  at  29-30  (discussing  different  understandings  of  sexting 


2010]  SEXTING  323 


Research  Center's  categories  of  typical  sexting  include  teens  actively  looking  to 
exploit  other  teens.248  Instead,  a  number  of  students  view  sexting  as  a  substitute 
for  sexual  activity.249  Additionally,  teens  appear  more  likely  to  engage  in  sexting 
as  they  mature.250  Many  teens  view  sexting  as  having  potentially  harmful 
consequences,  but  they  appear  more  concerned  with  getting  in  trouble  at  school 
than  with  punishment  by  law  enforcement.251  Another  survey  showed  that  ninety 
percent  of  teens  "somewhat"  or  "strongly"  agreed  that  it  was  "dangerous  to  send" 
the  images,  but  only  fifty-five  percent  acknowledged  the  likelihood  of  legal 
consequences.252  The  same  survey  also  found  that  sexting  teens  most  often  send 
these  messages  because  someone  asked  them  to  or  to  have  fun.253  As  stated 
above,  objective  evidence  indicates  that  teens  are  less  likely  than  adults  to 
understand  the  risks  they  are  taking.254 

Over  time,  the  juvenile  justice  system's  chief  goal  may  have  shifted  toward 
punishment  and  away  from  its  initial  goal  of  rehabilitation.255  However,  the  core 
idea  of  rehabilitation  remains.256  If  the  purpose  of  child  pornography  laws  is  to 
punish  those  who  victimize  persons  depicted  in  the  images,257  the  same 
justification  does  not  apply  to  a  sexting  image  voluntarily258  sent  between  a 
teenage  couple  close  in  age.259  In  that  situation,  it  is  less  likely  that  exploitation 
occurred  or  commercial  activity  was  involved,260  and  the  potential  for  harm  would 
be  lower  unless  the  image  was  "more  widely  disseminated."261 

The  lack  of  predatory  or  exploitative  intent  further  illustrates  that  teens 


between  younger  and  older  minors);  Lenhart,  supra  note  142,  at  2  (stating  that  "[o]lder  teens  are 
much  more  likely  to  send  and  receive  these  images"  with  thirty  percent  of  seventeen-year-old 
teenagers  having  received  a  "nude  or  nearly  nude  image  on  their  phone"). 

248.  See  Lenhart,  supra  note  142,  at  2. 

249.  Mat  8. 

250.  Id.  at  2. 

251.  See  id.  at  6-8. 

252.  Teen  Online  &  Wireless  Safety  Survey:  Cyberbullying,  Sexting,  and  Parental  Controls, 
Cox  COMMC'NS  43  (May  2009),  available  at  http://www.cox.com/takecharge/ 
safe_teens_2009/media/2009_teen_survey_internet_and_wireless_safety.pdf. 

253.  Id  at  37. 

254.  See  discussion  supra  Part  I. 

255.  Joanna  S.  Markman,  In  re  Gault:  A  Retrospective  in  2007:  Is  It  Working?  Can  It  Work?, 
9  Barry  L.  Rev.  123, 140  (2007)  (concluding  that  the  juvenile  justice  system  has  become  primarily 
concerned  with  the  punishment,  rather  than  the  rehabilitation,  of  juvenile  offenders). 

256.  See  e.g. ,  Weins  &  Hiestand,  supra  note  1 1 2,  at  29  (proposing  a  sexting  solution  that  aims 
to  deter  and  rehabilitate  minors). 

257.  Leary,  supra  note  210. 

258.  Weins  &  Hiestand,  supra  note  1 12,  at  5 1 ,  52  n.356  (proposing  that  an  aggravating  factor 
in  a  more  severe  penalty  or  charging  a  minor  under  child  pornography  laws  be  whether  material 
was  involuntarily  obtained). 

259.  Calvert,  supra  note  1 17,  at  32-33,  47. 

260.  Humbach,  supra  note  1 17,  at  465. 

26 1 .  Calvert,  supra  note  1 1 7,  at  47. 


324  INDIANA  LAW  REVIEW  [Vol.  44:30 1 


should  not  be  subject  to  adult  penalties  if  they  lack  the  intent  that  child 
pornography  statutes  were  designed  to  prohibit,262  a  view  adopted  by  recent 
commentaries.263  Teens  that  may  legally  consent  to  sexual  relations  because  of 
age  gap  provisions  should  not  face  the  harshness  of  child  pornography  charges 
when  they  record  that  legal  activity.264  Jurisdictions  that  place  sexting  teens 
alongside  sex  offenders  who  legitimately  deserve  to  be  on  the  sex  offender 
registry  because  of  their  abuse  and  exploitation  of  children  only  dilutes  the 
registry's  importance  and  utility.265  The  registry  allows  residents  to  better 
understand  the  people  living  in  their  immediate  surroundings  and  enables  them 
to  more  thoroughly  weigh  the  need  for  extra  vigilance.266  However,  the  registry 
becomes  less  useful  to  residents  when  persons  on  the  registry  differ  too  widely 
in  their  potential  threats  to  the  community.267 

The  distribution  of  sext  images  by  anyone  and  possession  of  them  by  third 
parties268  greatly  complicates  potential  legislative  action.269  Therefore, 
legislatures  cannot  fully  provide  a  solution  to  sexting  relying  solely  on  age 
differences.270  Legislatures  must  consider  the  conduct271  and  intent272  an 
individual  exhibited  when  distributing  these  images.  Minors  who  prey  on  other 
minors  should  not  be  eligible  to  receive  the  same  reduced  consequences  for 


262.  See  discussion  supra  Part  H.A  and  infra  notes  337-41  and  accompanying  text. 

263 .  See  Arcabascio,  supra  note  49,  at  4 1  (proposing  that  "teenage  sexters  who  voluntarily  and 
without  coercion  sext  each  other,  without  disseminating  the  photos  to  a  third  party,  should  not  be 
charged  with  a  crime");  Calvert,  supra  note  1 17,  at  62  (advocating  that  the  law  should  be  involved 
"in  cases  of  secondary,  non-volitional  sexting");  Levick  &  Moon,  supra  note  49,  at  1051  (stating 
that  a  "lower-graded  offense"  is  "preferable  to  child  pornography  charges"  but  arguing  that  "the 
best  alternatives  resist  widening  the  net  of  the  juvenile  justice  system");  Weins  &  Hiestand,  supra 
note  1 12,  at  52-53  (proposing  statutory  language  that  enhances  sexting  punishment  when  material 
was  obtained  involuntarily);  Julie  Hilden,  How  Should  Teens '  "Sexting  " — the  Sending  of  Revealing 
Photos— Be  Regulated?,  FlNDLAW(Apr.  28, 2009),  http://writ.news.findlaw.com/hilden/20090428. 
html. 

264.  See  Smith,  supra  note  14,  at  524-25;  Weins  &  Hiestand,  supra  note  1 12,  at  50  n.345. 

265.  Richards  &  Calvert,  supra  note  5,  at  36. 

266.  Id. 

267.  Id.  at  36-37. 

268.  See  infra  notes  269,  277-78  and  accompanying  text. 

269.  See  Julie  Hilden,  Why  Sexting  Should  Not  Be  Prosecuted  as  "Contributing  to  the 
Delinquency  of  a  Minor,"  FlNDLAW  (May  13,  2009),  http://writ.news.findlaw.com/hilden/ 
200905 13.html  (stating  that  "[t]eens'  nonconsensual  forwarding  of  other  teens'  photos,  of  course, 
is  a  much  harder  scenario"). 

270.  See,  e.g. ,  Nix,  supra  note  1 1 7,  at  1 90-92  (proposing  that  Utah  adopt  penalties  that  address 
minors'  conduct  rather  than  solely  relying  on  age  distinctions). 

271.  Id. 

272.  See  Nix,  supra  note  117,  at  192  (advocating  for  a  statute  that  looks  to  the  intent  in 
sending  the  images);  cf  Calvert,  supra  note  1 1 7,  at  4 1  -42  (suggesting  that  civil  law  remedies  in  the 
form  of  intentional  infliction  of  emotional  distress  may  be  used  to  address  sexting). 


2010]  SEXTING  325 


minors  who  consent  to  creating  or  receiving  such  images.273  Nebraska's  statute, 
for  example,  contains  language  that  addresses  coercion  and  forwarding  or 
unwanted  distribution  of  sexting  images.274  Circumstances  like  these  create  a  true 
victim  and  can  potentially  be  a  form  of  cyberbullying  or  worse.275  Furthermore, 
the  act  of  a  minor  "voluntarily"  giving  an  image  to  an  adult  should  not  exempt 
that  adult  from  prosecution  under  child  pornography  laws.276 

State  legislatures  should  also  ensure  that  legislation  still  punishes  and  deters 
adults277  from  obtaining  minor's  sexting  images  and  that  the  "marketplace"  of 
images  does  not  grow.278  Certainly,  most  of  us  understand  or  are  coming  to 
understand  that  anything  sent  electronically  can  more  quickly  and  easily  become 
available  to  the  general  public.279  That  fact,  however,  should  not  prevent  angry 
boyfriends,  third-party  high  school  student  recipients,  or  child  predators  from 
facing  different  tiers280  of  consequences  for  distributing  these  images.281 
Nebraska's  law  eliminates  the  affirmative  defense  it  created  for  individuals  under 
nineteen  if  the  defendant  distributes  the  "visual  depiction  to  another  person 
except  the  child  depicted  who  originally  sent  the  visual  depiction  to  the 
defendant."282  This  provision  acknowledges  that  some  sexting  is  likely  to  occur 
between  teenagers  but  does  not  open  the  market  to  anyone  else  obtaining  these 
images. 

B.  Appropriate  Penalties  for  Sexting  Teens 
Sexting  is  not  victimless.283    It  potentially  increases  the  amount  of  child 


273.  Calvert,  supra  note  1 17,  at  33  ("legal  intervention  seems  most  necessary  in  cases  of  a 
minor  distributing  an  image  without  permission  or  a  minor  "preying  on  a  much  younger  person"); 
Weins  &  Hiestand,  supra  note  1 12,  at  51,  52  n.356,  53  (proposing  enhanced  punishment  when 
material  is  obtained  involuntarily  and  reiterating  that  a  sexting  statute  should  not  absolve  minors 
who  remain  guilty  under  child  pornography  laws). 

274.  Neb.  Rev.  Stat.  §  28-813.01  (Supp.  2009). 

275.  See  supra  note  258  and  accompanying  text. 

276.  Id. 

277.  Calvert,  supra  note  1 1 7,  at  60-6 1 . 

278.  See,  e.g. ,  id.  at  62  (stating  that  how  much  a  minor  is  harmed  by  sexting  "depends  directly 
on:  1)  how  it  is  used  by  the  recipient;  and  2)  to  whom  and  to  how  many  people  the  recipient 
forwards  it");  Weins  &  Hiestand,  supra  note  1 12,  at  55  (examining  the  application  of  a  proposed 
sexting  bill  to  a  situation  in  which  a  minor  sells  a  self-image  to  an  adult). 

279.  Jeffrey  Rosen,  The  Web  Means  the  End  of  Forgetting,  N.Y.  TIMES  Mag.,  July  25,201 0, 
at  MM30,  available  at  http://www.nytimes.com/2010/07/25/magazine/25privacy- 
t2  .html?_r=  1  &ref=magazine. 

280.  This  is  not  to  suggest  that  angry  boyfriends,  third-party  student  recipients,  and  child 
predators  should  face  equal  punishments. 

28 1 .  See,  e.g. ,  Weins  &  Hiestand,  supra  note  1 1 2,  at  50-53  (proposing  a  model  sexting  statute 
with  aggravating  factors). 

282.  Neb.  Rev.  Stat.  §  28-813.01  (Supp.  2009). 

283.  Calvert,  supra  note  1 1 7,  at  4, 26-27.  But  see  Humbach,  supra  note  1 1 7,  at  466  (arguing 


326  INDIANA  LAW  REVIEW  [Vol.  44:301 


pornography  that  has  continued  to  rise  despite  law  enforcement  efforts.284 
Additionally,  sexting  can  lead  to  situations  where  teens  threaten  other  teens  to 
obtain  the  photographs,  where  the  photographs  are  maliciously  or  deliberately 
distributed  and  teens  are  humiliated,  or  where  adults  actively  seek  out  the 
images.285  It  is  unlikely  that  states  can  fully  deter  an  action  that  fifty-five  percent 
of  its  potential  participants  do  not  view  as  having  serious  legal  consequences.286 
State  legislatures,  however,  can  take  steps  to  avoid  the  inequitable  results  that 
currently  exist  under  their  laws287  and  create  some  deterrent  effect.288 

1.  Content  of  Images. — The  prosecution  of  "borderline"  289  images  in 
Skumanick  illustrates  the  need  for  legislation  to  address  the  actual  content  of  the 
sexting  images.  For  example,  in  Skumanick,  the  prosecutor  was  offering  the 
sexting  teens  an  educational  alternative  to  being  charged  under  the  state's  child 
pornography  laws,  but  the  content  of  the  images  may  not  have  met  the  definition 
of  child  pornography.290  The  potential  situation  that  a  prosecutor  would  pursue 
charges  against  teens  clad  in  underwear291  illustrates  the  need  for  specific 
language  that  ensures  the  content  does  not  warrant  First  Amendment 
protection. 

Professor  Clay  Calvert  recently  wrote  that  the  question  of  whether  borderline 
images  are  child  pornography  is  a  "threshold  question  [and]  requires  a  fact- 
intensive  inquiry."293    The  key  inquiry,  according  to  Calvert,  is  whether  the 


that  protecting  people  from  "their  own  youthful  silliness . . .  hardly  seems  an  interest  'of  surpassing 
importance'")  (quoting  New  York  v.  Ferber,  458  U.S.  747,  757  (1982)). 

284.  See  discussion  supra  Part  II. 

285.  See  discussion  supra  Part  III. A. 

286.  Cox  Commc'NS,  supra  note  252,  at  43. 

287.  Weins  &  Hiestand,  supra  note  1 12,  at  29. 

288.  Leary,  supra  note  14,  at  42-43. 

289.  See  Weins  &  Hiestand,  supra  note  1 12,  at  8, 24-25  (stating  that  "the  Supreme  Court  has 
left  open  issues  regarding  whether  borderline  materials  depicting  children  are  protected  by  the  First 
Amendment");  see  also  Calvert,  supra  note  117,  at  51-55  (discussing  how  different  statutory 
language  determines  how  an  image  will  be  defined  based  on  its  content). 

290.  Miller  v.  Skumanick,  605  F.  Supp.  2d  634, 645-46  (M.D.  Pa.  2009),  aff'dsub  nom.  Miller 
v.  Mitchell,  598  F.3d  139  (3d  Cir.  2010). 

29 1 .  See  id. 

292.  This  Note  assumes  that  most  sexting  instances  that  are  handled  by  law  enforcement  and 
the  juvenile  justice  system  will  not  be  protected  by  the  First  Amendment.  Determining  which  cases 
are  protected  is  still  an  area  of  debate.  See,  e.g.,  Humbach,  supra  note  1 1 7,  at  482-85  (stating  that 
"the  constitutional  status  of  teen  sexting  and  other  autopornography  remains  uncertain");  Kimpel, 
supra  note  1 1 3,  at  338  (advocating  that  "we  serve  children  better  by  acknowledging  their  rights  and 
allowing  their  speech  rather  than  silencing  expressions  of  their  sexuality");  Wood,  supra  note  7, 
at  1 77  (suggesting  that  "it  is  time  for  society  to  recognize  at  least  a  limited  right  to  sexual  privacy 
for  minors  under  the  mature  minor  standard  .  .  .  subject  to  the  right  of  parents  to  control  the 
upbringing  of  their  children"). 

293.  Calvert,  supra  note  1 1 7,  at  5 1 . 


2010]  SEXTING  327 


"depiction  is  lascivious."294  His  article  points  to  the  difficulty  presented  by 
differing  definitions  of  child  pornography  under  federal  and  state  laws.295 
Borderline  images  may  meet  the  definition  of  child  pornography  if  the  state 
requires  "exhibition"  as  opposed  to  "lascivious"  conduct.296  As  another  recent 
law  review  article  stated,  however,  lasciviousness  is  a  question  for  the  jury,  which 
invites  "the  same  problems  and  criticisms"  as  when  "jurors  are  asked  to  define 
community  standards  for  obscenity  prosecutions."297 

In  Skumanick,  the  Third  Circuit  Court  of  Appeals  "appeared  poised"  to  rule 
that  sext  images,  including  one  exhibiting  a  female  minor's  breasts,  were 
protected  by  the  students'  First  Amendment  rights298  before  reaching  a  narrower 
holding.299  This  type  of  ruling  would  arguably  have  been  closer  to  applying  the 
"lascivious"  standard  rather  than  an  "exhibition"  one.300  The  implications  of  a 
ruling  that  acknowledges  a  juvenile's  First  Amendment  right  to  individually  take 
or  appear  in  such  a  picture  does  not  greatly  affect  the  debate  on  punishing  teens 
who  sext  but  do  not  distribute.  Individuals  are  generally  not  prohibited  from 
viewing  and  documenting  their  own  self-images.301  Finding  that  the  further 
distribution  of  most  images  are  protected  under  the  First  Amendment  presents 
potential  problems.  In  Skumanick,  some  of  the  images  discovered  in  the  school 
district's  investigation  were  photographs  of  a  fourteen-year-old  girl  who  was 
"naked  from  the  waist  up"  that  were  sent  to  a  since-arrested  adult  male  who  had 
planned  on  visiting  her.302  Allowing  minors  to  take  and  distribute  the  images 
could  increase  the  marketplace  for  them  and  potentially  prevent  the  state  from 
taking  action  against  juveniles  who  actively  distribute  these  images.303  The  best 
target  for  the  most  severe  prosecution  in  that  instance,  however,  is  the  adult  who 
was  victimizing  the  juvenile.304 

2.  A  Juvenile  Court  Response. — State  legislatures  can  circumvent  many  of 


294.  Id.  at  52. 

295.  Id.  at  53. 

296.  See  id.  (stating  that  under  federal  law,  an  image  constitutes  child  pornography  if  it  shows 
"lascivious  images  of  the  genital  or  pubic  area,  not  to  the  breasts").  States  may  use  language  such 
as  "exhibition"  rather  than  "lascivious,"  which  increases  the  likelihood  that  a  court  will  interpret 
a  borderline  image  to  be  child  pornography.  Id. 

297.  Weins  &  Hiestand,  supra  note  1 12,  at  25. 

298.  Shannon  P.  Duffy,  Panel  Mulls  If  Teen  'Sexting'  Is  Child  Pornography,  LEGAL 
Intelligencer,  Jan.  19,  2010,  available  at  2010  WLNR  1 1 16394. 

299.  See  supra  notes  173-83  and  accompanying  text. 

300.  See  supra  notes  290-96  and  accompanying  text. 

301.  Seth  F.  Kreimer,  Pervasive  Image  Capture  and  the  First  Amendment:  Memory, 
Discourse,  and  the  Right  to  Record,  159  U.  Pa.  L.  Rev.  (forthcoming  Dec.  2010),  available  at 
http://ssrn.com/abstract=1553920;  cf.  Kimpel,  supra  note  1 13,  at  333  (stating  that  "[n]o  case  has 
addressed  the  absurdity  of  applying  child  pornography  laws  to  minors'  uncoerced  self-portraits"). 

302.  Reply  Brief  of  Appellant  at  10-1 1,  Miller  v.  Mitchell,  598  F.3d  139  (3d  Cir.  2010)  (No. 
09-2144),  available  at  2009  WL  5538636. 

303.  See  id. 

304.  Shafron-Perez,  supra  note  103,  at  449. 


328  INDIANA  LAW  REVIEW  [Vol.  44:301 


the  inequities  that  have  surrounded  charging  sexting  juveniles  with  possession  or 
distribution  of  child  pornography  by  ensuring  that  the  average  case  is  resolved  in 
juvenile  court.305  Recent  commentaries  have  followed  this  approach.306  Vermont 
and  Utah  have  attempted  to  ensure  that  teens  caught  sexting  do  not  face  life- 
changing  charges.307  Vermont  adjudicates  these  juveniles  as  delinquents.308 
Applying  a  similar  philosophy,  Utah  charges  sexting  by  persons  seventeen  and 
under  as  a  misdemeanor.309  Laws  and  bills  in  Arizona,310  Illinois,311  Kentucky,312 
Mississippi,313  and  South  Carolina314  would  make  sexting  by  juveniles  a 
misdemeanor.  A  Rhode  Island  bill  took  a  similar  approach  by  making  juvenile 
sexting  a  status  offense  and  referring  juveniles  to  family  court.315  These  measures 
reflected  the  notion  that  regardless  of  the  results  of  their  actions,  teens  have 
neither  the  ability  to  completely  understand  their  actions  nor  the  culpability  of 
adults  or  predatory  minors  who  target  others.316 

At  most,  juveniles  who  voluntarily  create  and  distribute  sexually  explicit 
images  of  themselves  or  possess  analogous  images  of  other  minors  voluntarily 
obtained  from  said  minors  should,  under  "average"  circumstances,  be  adjudicated 
as  delinquents  in  juvenile  court.317  Legislatures  should  also  require  juvenile 
courts  to  consider  several  other  factors  in  sexting  instances  to  understand  the 
scope  of  the  circumstances.318  In  Ohio,  a  prosecutor  took  this  approach  by 
implementing  a  program  that  considers  (1)  "whether  the  juvenile  has  any  prior 


305.  See  Vt.  Stat.  Ann.  tit.  13,  §  2802b  (2010). 

306.  See  Calvert,  supra  note  1 1 7,  at  60-6 1 ;  Corbett,  supra  note  235,  at  6-7;  Leary,  supra  note 
44,  at  551-52;Weins  &  Hiestand,  supra  note  112,  at  52;  cf.  Arcabascio,  supra  note  49,  at  42 
(advocating  for  a  maximum  of  a  misdemeanor  charge);  Nix,  supra  note  1 1 7,  at  1 92  (advocating  law 
that  allows  discretion  to  determine  misdemeanor  charge  "based  on . . .  conduct,  not  age");  Shafron- 
Perez,  supra  note  103,  at  451-52  (stating  that  the  best  proposal  to  address  sexting  is  a  "separate 
offense"  that  charges  teens  with  misdemeanors). 

307.  Shafron-Perez,  supra  note  1 03,  at  452-53  n.  1 39.  But  see  Weins  &  Hiestand,  supra  note 
1 1 2,  at  34-37, 4 1  -45  (arguing  that  Vermont  and  Utah  have  not  prevented  prosecutors  from  charging 
sexting  juveniles  under  child  pornography  laws). 

308.  Vt.  Stat.  Ann.  tit.  13,  §  2802b(b)(l)  (2010). 

309.  UTAHCODEANN.§§76-10-1204(l)-(4)(c),-1206(l)-(2)(c)(West,Westlawthrough2010 
legislation). 

310.  Ariz.  Rev.  Stat.  Ann.  §  8-309  (2010). 

311.  H.R.  4583,  96th  Gen.  Assemb.,  1st  Reg.  Sess.  (111.  2010). 

312.  H.R.  57,  2010  Leg.,  Reg.  Sess.  (Ky.  2010). 

313.  H.R.  643,  2010  Leg.,  125th  Reg.  Sess.  (Miss.  2010). 

314.  H.R.  4504,  1 18th  Gen.  Assemb.,  2d  Reg.  Sess.  (S.C.  2010). 

315.  H.R.  7778,  2010  Leg.,  Reg.  Sess.  (R.I.  2010). 

3 1 6.  See  discussion  supra  Part  II  and  note  254  and  accompanying  text. 

317.  See  Arcabascio,  supra  note  49,  at  42  (advocating  for  a  maximum  of  a  misdemeanor 
charge);  Nix,  supra  note  117,  at  192  (advocating  law  that  allows  discretion  to  determine 
misdemeanor  charge  "based  on  a  [teenager's]  conduct,  not  age"). 

318.  See  Weins  &  Hiestand,  supra  note  112,  at  48  (advocating  a  "low,  base-level  juvenile 
charge,  with  aggravating  factors  for  more  serious  behaviors"). 


2010]  SEXTING  329 


sexual  offenses;"  (2)  whether  "force  or  illicit  substances  were  used;"  (3)  whether 
the  juvenile  had  sexted  and  been  through  the  program  before;  and  (4)  whether  the 
"victim  or  law  enforcement's]"  concerns  regarding  the  diversionary  program  had 
been  taken  into  account.319 

In  more  severe  cases,  the  juvenile  could  be  waived  to  criminal  court320  if  the 
juvenile  repeatedly  coerced  or  threatened  other  minors  to  sext  or  engage  in  sexual 
acts  while  documenting  that  activity.321  In  that  scenario,  a  "waiver  to  criminal 
court"  would  ensure  that  the  level  of  punishment  meets  the  severity  of  the  crime 
-  something  more  severe  than  "juvenile  courts  properly  are  empowered  to 
impose."322  Aside  from  the  abovementioned  Ohio  factors,  state  sexting  statutes 
should  only  consider  registration  if  the  actions  are  severe  enough.  For  example, 
the  Adam  Walsh  Act  places  adjudicated  teenagers  on  the  sex  offender  registry  if 
their  actions  closely  parallel  aggravated  sexual  abuse.323  Aggravated  sexual  abuse 
occurs  when  a  person  engages  in  a  sex  act  with  another  by  force,  by  threat, 
rendering  the  person  unconscious  or  through  involuntarily  drugging,  or  when  a 
person  engages  in  a  sex  act  with  a  person  under  twelve  years  old.324  Even  in  rare 
and  severe  cases,  the  court  should  have  discretion  to  examine  the  totality  of  the 
circumstances  to  find  the  most  equitable  outcome  for  all  parties.325  Under  this 
scheme,  it  appears  more  appropriate  to  seek  enhanced  penalties  because  of  a 
significantly  large  age  gap  between  the  teens326  and  evidence  of  exploitation.327 

3.  Question  of  Prosecutorial  Discretion. — Prosecutors  currently  have  less 
severe  statutes  than  child  pornography  laws  at  their  disposal  that  could  address 
sexting  if  state  legislatures  choose  not  to  pass  sexting  legislation.328  Potential 
options  include  laws  covering  obscenity,329  "disorderly  conduct,  harassment,  and 


3 1 9.  Heck,  supra  note  4,  at  29. 

320.  See  Weins  &  Hiestand,  supra  note  lll,at52n.356,55  (arguing  that  states'  waiver  laws 
may  require  statements  that  sexting  cases  should  only  be  brought  in  juvenile  court  but  stating  that 
sexting  laws  should  not  lessen  punishment  for  minors  that  create,  possess,  or  distribute  child 
pornography). 

32 1 .  Heck,  supra  note  4,  at  29. 

322.  ZlMRlNG,  supra  note  44,  at  140. 

323.  See  Bowater,  supra  note  68,  at  828,  846-50  (discussing  the  Adam  Walsh  Act  and 
criticizing  it  for  requiring  juveniles  to  register  for  sex  offenses  when  "convicted"  in  juvenile  court). 

324.  U.S.  Dep't  of  Justice,  Juvenile  Offenders  Required  to  Register  Under  SORNA: 
A  Fact  Sheet,  available  at  http://www.ojp.usdoj  .gov/smart/pdfs/factsheetsorna Juvenile.pdf  (last 
visited  Oct.  3,  2010). 

325.  Weins  &  Hiestand,  supra  note  1 12,  at  29, 52-53  (cautioning  against  placing  juveniles  on 
the  sex  offender  registry  "given  the  gravity  of  the  consequences"). 

326.  See  Hilden,  supra  note  263  (stating  that  teens  close  in  age  should  have  a  "safe  harbor" 
to  send  sext  messages  and  not  be  deemed  criminals). 

327.  Calvert,  supra  note  1 17,  at  33. 

328.  Richards  &  Calvert,  supra  note  5,  at  13;  see  also  Arcabascio,  supra  note  49,  at  25-27 
(discussing  prosecutorial  discretion);  Leary,  supra  note  44,  at  551-55  (arguing  for  a  juvenile  court 
response  that  is  based  on  "structured  prosecutorial  discretion"). 

329.  Corbett,  supra  note  235,  at  7. 


330  INDIANA  LAW  REVIEW  [Vol.  44:301 


stalking,"330  "annoying  communication,"331  and  cyberbullying.332  Using  these 
statutes  to  address  sexting  would  allow  states  to  take  action  against  teens  who 
sext  without  affixing  the  inherent  sexual  predator  label  that  child  pornography 
statutes  carry.333  Furthermore,  it  would  prevent  minors  who  created  or  possessed 
sexting  images  without  coercion  from  being  placed  on  the  sex  offender  registry. 
Examining  the  sexting  cases  thus  far,  however,  suggests  that  a  specific  statute 
would  serve  both  the  community  and  juveniles  better  than  potentially 
unpredictable  prosecutions.334 

4.  A  Sexting-Specific  Statute. — The  policy  implications  surrounding  sexting 
require  serious  consideration  and  deliberation.335  The  potential  ramifications  for 
juveniles,  however,  are  too  dramatic  and  long-lasting  for  legislatures  not  to 
provide  guidance.336  Punishing  juvenile  offenders  as  "stereotypical  sexual 
predators"  creates  a  perception  that  the  juvenile  offenses  are  "more  dangerous  and 
serious  than  they  actually  are."337  Protecting  the  victims  of  adult  offenders  and 
other  circumstances  surrounding  punishing  child  pornographers  both  firmly 
justify  harsher  penalties.338  Adult  sex  offenders  typically  use  force  to  manipulate, 
coerce,  or  kidnap  children.339  The  adults'  intent  is  solely  to  exploit  these 
children.340  In  contrast,  sexting  among  juveniles  tends  to  lack  that  degree  of 
coercion.341  Furthermore,  prosecutors  are  still  threatening  to  charge  children  and 
teenagers  under  child  pornography  statutes  for  sexting342  nearly  two  years  after 


330.  Richards  &  Calvert,  supra  note  5,  at  13. 

331.  See  Fla.  Stat.  Ann.  §  784.048  (West,  Westlaw  through  2010  legislation).  This  statute 
criminalizes  the  act  of  cyberstalking  and  defines  it  as  engaging  "in  a  course  of  conduct  to 
communicate,  or  to  cause  to  be  communicated,  words,  images,  or  language  by  or  through  the  use 
of  electronic  mail  or  electronic  communication,  directed  at  a  specific  person,  causing  substantial 
emotional  distress  to  that  person  and  serving  no  legitimate  purpose."  Id. 

332.  Calvert,  supra  note  1 17,  at  38-40,  58-59. 

333.  Richards  &  Calvert,  supra  note  5,  at  13. 

334.  See  Shafron-Perez,  supra  note  103,  at  451  (addressing  Colorado's  reliance  on 
prosecutorial  discretion  and  the  potential  for  prosecutorial  abuse). 

335.  See,  e.g.,  Jon  Seidel,  'Sexting '  Bill  Headed  for  Study,  MERRILLVILLE  Post-Trib.,  Feb. 
17,  2010,  at  9,  available  atf  2010  WLNR  3336671  (discussing  Indiana  lawmakers'  postponing  the 
passage  of  a  sexting  bill  until  policy  considerations  are  further  studied). 

336.  See,  e.g. ,  Kristen  Schorsch,  Sexting  May  Spell  Court  for  Children:  Kids  Trading  Photos 
Seen  as  Child  Porn,  Which  Is  a  Felony,  Cm.  TRIB.,  Jan.  29,  20 1 0,  at  1 7,  available  at  20 1 0  WLNR 
1912762  (discussing  a  twelve-year-old  boy  and  thirteen-year-old  girl  who  had  been  supposedly 
charged  in  Indiana  with  child  exploitation  and  possession  of  child  pornography  after  trading  nude 
images  of  themselves  on  their  cell  phones  two  years  after  stories  of  charging  juveniles  with  felonies 
for  sexting  became  widespread). 

337.  Zimring,  supra  note  44,  at  1 16. 

338.  Corbett,  supra  note  235,  at  6. 

339.  Id. 

340.  Id. 

341.  Id. 

342.  See,  e.g.,  Schorsch,  supra  note  336. 


2010]  SEXTING  331 


sexting  entered  the  mainstream  media's  conversation. 

If  sent  between  two  consenting  teenagers,  sexting  is  not  just  another  version 
of  the  First  Amendment  child  pornography  exception.343  Ferber' s  rationale  may 
not  be  applicable  if  the  average  sext  message  does  not  document  a  record  of 
abuse.344  The  rationale  for  taking  any  type  of  action  against  teenagers  for  sexting, 
therefore,  must  reside  in  the  notion  that  the  government  is  acting  to  protect  a  teen 
from  victimizing  and  harming  himself  -  even  if  he  does  not  realize  it  -  and 
protect  society  from  harm.345 

Teen  sexting  can  result  in  humiliation  and  exploitation.346  While  some 
sexting  teens  may  find  that  no  repercussions  result  from  their  actions,347  the 
state's  parens  patriae  role  gives  each  state  the  ability  to  protect  teens.348  Sexting 
images  are  not  necessarily  likely  to  "decrease  the  market  for  traditional  child 
pornography."349  The  fact  that  teenagers  may  initially  forward  or  send  the  images 
in  a  non-commercial  context  does  not  mean  the  images  will  not  enter  a 
commercial  setting  or  increase  demand.350  Furthermore,  accidently  sending  them 
to  an  unknown  person  is  not  the  only  way  pedophiles  can  receive  these  images.351 
For  example,  sexting  images  that  teenage  girls  sent  their  boyfriends  ended  up  on 
the  Internet  when  another  teenager  acquired  the  images  and  sold  a  DVD  of  the 


343.  Calvert,  supra  note  1 17,  at  47-48. 

344.  See  Ashcroft  v.  Free  Speech  Coal.,  535  U.S.  234,  249  (2002)  ("Ferber  upheld  a 
prohibition  on  the  distribution  and  sale  of  child  pornography,  as  well  as  its  production,  because 
these  acts  were  'intrinsically  related'  to  the  sexual  abuse  of  children  in  two  ways"  related  to  the 
"permanent  record  of  a  child's  abuse"  and  the  state's  interest  in  closing  the  child  pornography 
market)  (citing  New  York  v.  Ferber,  458  U.S.  747,  759  (1982));  Arcabascio,  supra  note  49,  at  24 
(stating  that  "where  no  crime  occurs  in  the  taking  of  the  picture,  the  distribution  argument  cannot 
stand  alone  and  must  fail"  when  charging  child  pornography);  Calvert,  supra  note  1 1 7,  at  47-48 
(stating  that  the  initial  "sexting  image"  is  generally  not  a  record  of  abuse  and  the  only  support  from 
Ferber  for  "applying  child  pornography  laws  to  instances  of  sexting"  is  because  the  images  are 
permanent  records  that  can  be  distributed). 

345.  See  Calvert,  supra  note  1 17,  at  48;  Leary,  supra  note  14,  at  6;  Weins  &  Hiestand,  supra 
note  112,  at  30. 

346.  See  Calvert,  supra  note  117,  at  4  (stating  that  sexting  "stretch[es]  beyond  sexual 
exploitation  and  embarrassment  to  commercial  exploitation  and  even  death"). 

347.  See  CoxCommc'ns,  supra  note  252,  at  3  8  (reporting  that  ninety  percent  of  "sext  senders" 
stated  that  none  of  the  "bad  things"  listed  in  the  poll  had  occurred  when  they  had  sent  a  sext 
message). 

348.  Leary,  supra  note  14,  at  26-27. 

349.  See  Shafron-Perez,  supra  note  1 03,  at  449  n.  1 1 3 . 

350.  Kimpel,  supra  note  113,  at  321  (stating  that  "the  market  rationale  does  justify  the 
prosecution  of  children  for  consuming  child  pornography  produced  by  a  third  party  because 
children  consuming  child  pornography  do  create  an  increased  market  demand"). 

351.  Shafron-Perez,  supra  note  103,  at  449  (stating  that  pedophiles  are  unlikely  to  possess 
sexting  images  unless  a  minor  "incorrectly"  and  "coincidently"  dials  the  phone  number  of  a 
pedophile). 


332  INDIANA  LAW  REVIEW  [Vol.  44:301 


images.352  Once  located  in  a  digital  form,  the  image  has  access  to  the  Internet, 
which  "allows  for  unprecedented  voyeurism,  exhibitionism  and  inadvertent 
indiscretion."353  And  on  the  Internet,  "these  images  .  .  .  make  their  way  to  the 
newsgroups,  peer-to-peer  file-sharing  networks,  and  email  of  those  who  use  these 
images  to  validate  their  own  sexual  proclivities  for  children."354 

The  rationale  for  a  distinction  punishing  juveniles  and  not  adults,  or  on  a 
different  level  than  adults,  is  not  new.355  As  Justice  Kennedy  recently  restated  in 
Graham  v.  Florida,  "[i]t  remains  true  that  '[f)rom  a  moral  standpoint  it  would  be 
misguided  to  equate  the  failings  of  a  minor  with  those  of  an  adult,  for  a  greater 
possibility  exists  that  a  minor's  character  deficiencies  will  be  reformed.'"356  The 
status  of  being  a  juvenile  results  in  different  prohibitions  that  do  not  apply  to 
adults.357  We  do  not  allow  juveniles  to  drink  alcohol  before  they  turn  twenty-one 
years  old.358  We  do  not  allow  juveniles  to  purchase  cigarettes  before  they  turn 
eighteen  years  old.359  As  a  society,  we  have  recognized  that  allowing  juveniles 
to  drink  or  smoke  before  they  have  matured  harms  them  in  ways  we  wish  to 
avoid.  Conversely,  many  states  avoid  prosecuting  teens  who  engage  in  sexual 
activity360  and  allow  certain  sexual  activity  between  teenagers.361  Rationales 
exist  for  regulating  these  activities  as  well.  Certainly,  negative  consequences 
exist  for  teens  who  become  pregnant  before  they  are  ready  to  become  parents. 
The  punishable  difference  between  teens  sexting  and  engaging  in  sexual  activity 
may  be  due  to  a  lack  of  psychological  drive  that  exists  for  teens  to  document  their 
sexual  activity.362  Teenagers  do  not  have  the  same  biological  urge  to  sext  that 
they  do  with  regard  to  sexual  activity.  Therefore,  controlling  sexting  is  more 
closely  aligned  to  the  rationales  of  not  allowing  teens  to  smoke  or  drink  before 
a  certain  age.363    It  is  a  right  they  eventually  gain  but  not  one  they  possess  as 


352.  Calvert,  supra  note  1 17,  at  2. 

353.  Rosen,  s upra  note  279. 

354.  Leary,  supra  note  2 1 0. 

355.  See  Weins  &  Hiestand,  supra  note  1 12,  at  27  n.220  (explaining  that  sexting  could  be  a 
status  offense  because  it  involves  an  activity  "which  is  legal  for  an  adult"). 

356.  Graham  v.  Florida,  130  S.  Ct.  201 1,  2026-27  (2010)  (quoting  Roper  v.  Simmons,  543 
U.S.  551,570(2005)). 

357.  See  Weins  &  Hiestand,  supra  note  1 12,  at  27  n.220. 

358.  Leary,  supra  note  44,  at  544  n.246. 

359.  Cf.  id.  (stating  that  we  do  not  decriminalize  illegal  narcotics  simply  because  a  large 
number  of  minors  ingest  them). 

360.  See  Olszewski,  supra  note  205,  at  706  (stating  that  "[s]exual  conduct  involving  persons 
close  in  age  is  either  non-criminal  or  punished  at  a  substantially  reduced  level"  in  a  majority  of 
states). 

361 .  See  Calvert,  supra  note  1 17,  at  48-49  (discussing  statutory  rape  laws). 

362.  But  see  Levick  &  Moon,  supra  note  49,  at  1038-39  (stating  that  "[sjexting  is  the  result 
of  a  convergence  between  the  well-recognized  adolescent  need  for  sexual  exploration  and  new 
technology  that  allows  teens  to  explore  their  sexual  relationships"  and  "technology  is  an  inseparable 
part  of  their  lives"). 

363.  Leary,  supra  note  44,  at  544  n.246. 


2010]  SEXTING  333 


teens.364 

States  addressing  sexting  juveniles  should  create  a  specific  and  separate 
statute.365  It  is  not  uncommon  for  a  state  statute  to  punish  minors  less  than  adults 
for  the  same  conduct.  In  Indiana,  for  example,  a  minor  attempting  to  sneak  into 
a  bar  with  a  fake  form  of  identification  will  face  a  C  misdemeanor  charge  under 
the  false  statement  of  age  statute, 366  which  the  legislature  recently  increased  from 
an  infraction.367  An  adult  possessing  a  fake  ID  would  face  a  class  B  misdemeanor 
or  a  D  felony  charge  if  he  knowingly  filled  out  false  information  to  obtain  the 
identification.368  Although  punishments  under  child  pornography  laws  are 
justified  to  protect  children  from  pedophiles  and  other  sexual  abusers,369  this 
rationale  does  not  support  applying  the  same  punishments  to  sexting  teens.370 
Being  a  "'juvenile'  carries  a  shield  from  publicity,  protection  against  extended 
pre-trial  detention  and  post-conviction  incarceration  with  adults,"  and  more 
limited  detention.371 

A  sexting  statute  that  carries  a  less  ominous  title  would  help  to  ensure  that 
anyone  gaining  access  to  the  juvenile's  past  history,  even  if  expunged,  would  not 
assume  that  the  juvenile  belongs  in  the  same  category  as  the  worst  offenders. 
Furthermore,  the  state  must  have  the  ability  to  punish  the  worst  offenders  with 
more  serious  crimes  while  allowing  the  "typical"  sexting  case  to  be  handled  by 
the  juvenile  court.372  A  primary  focus  of  the  statute  may  be  to  look  at  the  intent 
of  the  minor  and  number  of  times  a  minor  has  dealt  with  the  justice  system.373 
Penalties  based  simply  on  "hoarding"  or  the  number  of  images  possessed  could 
end  in  more  severe  penalties  than  is  necessary.374  For  example,  a  statute  that 
creates  an  additional  penalty  out  of  possessing  ten  images375  may  unfairly  target 
a  teenage  couple  that,  however  inappropriate,  has  engaged  in  sexting  over  a 
period  of  time  if  it  does  not  address  the  intent  of  the  minors.  Furthermore,  a 
penalty  increased  for  a  first-time  offense  because  material  was  sent  to  five  people, 
rather  than  just  three  to  four,  seems  like  an  arbitrary  cutoff.376  In  the  fickle  world 


364.  See  Leary,  supra  note  14,  at  44. 

365.  Weins  &  Hiestand,  supra  note  1 1 2,  at  48-52.  But  see  Levick  &  Moon,  supra  note  49,  at 
1036  (describing  law  enforcement's  involvement  in  sexting  as  a  "disturbing  trend"). 

366.  Ind.  Code  §  7. 1-5-7- 1(a)  (2010). 

367.  Joel  M.  Schumm,  Recent  Developments  in  Indiana  Criminal  Law  and  Procedure,  42  IND. 
L.  Rev.  937,  938  (2009). 

368.  Ind.  Code  §9-24-16-12. 

369.  Richards  &  Calvert,  supra  note  5,  at  35. 

370.  See  supra  notes  245-54,  337-41  and  accompanying  text. 

371.  In  re  M.D.N.,  493  N.W.2d  680,  683  (N.D.  1992). 

372.  See,  e.g. ,  Weins  &  Hiestand,  supra  note  1 1 2,  at  50-53  (advocating  that  the  highest  charge 
brought  against  juveniles  for  sexting  be  "a  felony  in  juvenile  court"  and  that  a  state  may  wish  to 
prevent  waiver  to  criminal  court). 

373.  See  id.  at  51. 

374.  Mat  51. 

375.  Id. 

376.  But  see  id. 


334  INDIANA  LAW  REVIEW  [Vol.  44:301 


of  high  school  relationships,  a  teenager  could  have  five  "long-term"  relationship 
over  the  course  of  five  months,  yet  still  be  charged  with  a  more  severe  penalty  for 
sending  explicit  images  to  his  or  her  five  significant  others  over  the  course  of  a 
year.  Looking  at  the  intent  of  the  sender  might  more  accurately  reflect  a  just 
response.377  For  instance,  a  teenager  who  has  sent  ten  unrequested  images  is 
probably  more  deserving  of  punishment  than  the  teenage  couple.378  States  should 
also  have  the  option  of  punishing  minors  who  repeatedly  harass  and  threaten 
other  minors  but  fail  to  obtain  explicit  material.379 

The  purpose  of  ensuring  that  a  sexting  statute  relegates  nearly  all  sexting 
instances  to  juvenile  court  is  magnified  as  states  become  compliant  with 
SORNA.380  The  possibility  of  placing  juveniles  on  sexual  offender  registries, 
even  for  a  short  period  of  time,381  leaves  much  less  hope  that  a  juvenile  could  be 
rehabilitated.382  The  federal  guidelines  take  steps  to  require  adjudicated  juvenile 
delinquents  to  register  only  under  more  rare  and  egregious  circumstances.383 
SORNA,  however,  does  not  create  any  exception  for  juveniles  prosecuted  as 
adults.384  Two  states,  New  York  and  North  Carolina,  currently  permit  sixteen- 
and  seventeen-year-olds  to  be  tried  as  adults.385  Where  states  have  made  sexting 
a  misdemeanor  but  have  not  ensured  that  cases  are  brought  in  juvenile  court  or 
are  not  charged  under  child  pornography  statutes,  a  sexting  offense  may  still  lead 
to  registration  on  the  sex  offender  list  in  compliance  with  SORNA.  Possession, 
creation,  or  distribution  of  child  pornography,  without  any  age  clarifiers,  is  a 
registerable  offense  under  SORNA.386  Given  this  statutory  scheme,  the  minority 


377.  But  see  id.  at  51  n.350  (stating  the  authors  "see  no  reason  that  [bright  line  numerical 
rules]  are  particularly  inappropriate  here"). 

378.  Compare  Nix,  supra  note  1 1 7,  at  1 9 1 ,  with  Weins  &  Hiestand,  supra  note  1 12,  at  30-3 1 
(proposing  examples  where  a  teen  sends  unrequested  and  presumably  unwanted  images  compared 
to  a  scenario  where  a  teenage  couple  potentially  faces  charges  for  exchanging  images). 

379.  See  Richards  &  Calvert,  supra  note  5,  at  13  n.47;  see  also  Arcabascio,  supra  note  49,  at 
29-3 1  (discussing  cyberbullying  laws). 

380.  See  supra  notes  72-78  and  accompanying  text;  see  also  Leary,  supra  note  44,  at  5 1 5- 1 8 
(discussing  SORNA  and  possible  implications  when  addressing  sexting);  Levick  &  Moon,  supra 
note  49,  at  1049-50  (same). 

381 .  See  Rosen,  supra  note  279. 

382.  Smith,  supra  note  14,  at  535-40. 

383.  See  U.S.  Dep't  of  Justice,  supra  note  324;  see  also  Leary,  supra  note  44,  at  515-17 
(discussing  SORNA  and  noting  that  its  construction  does  not  require  juveniles  to  register  for  all  sex 
offenses  but  only  for  "particularly  serious  sexually  assaultive  crimes"). 

384.  Office  of  Justice  Programs,  supra  note  72,  at  16.  But  see  Leary,  supra  note  44,  at  5 1 7 
(discussing  SORNA  and  arguing  that  the  question  is  not  "whether  a  state  allows  juvenile  sex 
offender  registration,  but  whether  it  does  so  for  child  pornography  adjudications"  in  juvenile  court). 
Professor  Leary  further  states,  however,  that  her  structured  prosecutorial  discretion  proposal  limits 
prosecutions  to  juvenile  court.  Id.  at  519  n.  135. 

385.  See  Tamar  R.  Birckhead,  North  Carolina,  Juvenile  Court  Jurisdiction,  and  the  Resistance 
to  Reform,  86  N.C.  L.  Rev.  1443,  1445  (2008). 

386.  Office  of  Justice  Programs,  supra  note  72,  at  20. 


2010]  SEXTING  335 


of  states  allowing  prosecution  of  sixteen  or  seventeen-year  olds  as  adults  will 
face  the  possibility  of  adding  two  seventeen-year-old  high  school  sweethearts  to 
the  registry  even  after  the  creation  of  a  reduced-penalty  sexting  statute. 

The  following  proposed  sexting  statute  is  molded  from  recent  bills  passed  or 
proposed  by  state  legislatures,  as  well  as  recent  commentaries  on  sexting.387  Its 
design  attempts  to  ensure  that  consensual  sexting  is  addressed  within  the  juvenile 
justice  system  and  works  to  punish  more  egregious  conduct.  It  states: 

PROHIBITION  ON  MINORS  ELECTRONICALLY 
DISSEMINATING  IMPROPER  MATERIAL 

It  is  not  a  violation  of  this  statute  if  a  minor388  took  reasonable  steps  to 
delete,  destroy,  or  eliminate  the  visual  depiction.  This  is  not  applicable 
to  a  minor  who  sends  the  depiction  with  embedded  code,  software,  or 
other  electronic  means  that  deletes,  destroys,  or  eliminates  the  visual 
depiction  meant  to  harass,  coerce,  or  threaten  another  minor. 

This  statute  does  not  cover389  possession,  creation,  or  distribution  of 
images  or  depictions  by  any  person  eighteen  years  of  age  or  older. 

(a)  A  minor  may  not  knowingly  use  electronic  devices  or  computers390 
to  send  or  distribute  to  another  minor  an  image,  photograph,  or  other 
depiction  of  himself  or  herself  in  a  state  of  nudity  or  engaged  in 


387.  The  statutes  and  bills  included  and  looked  to  for  the  model  language  include  Fla.  Stat. 
Ann.  §  827.071  (West,  Westlaw  through  2010  legislation);  Neb.  Rev.  Stat.  §  28-813.01  (Supp. 
2009);  VT.  Stat.  Ann.  tit.  13,  §  2802b  (2010);  H.R.  5533,  2010  Leg.,  Reg.  Sess.  (Conn.  2010); 
H.R.  1335, 2010  Leg.,  112th  Reg.  Sess.  (Fla.  2010);  H.R.  4583,96th  Gen.  Assemb.,  1st  Reg.  Sess. 
(111.  2010);  H.R.  57, 2010  Leg.,  Reg.  Sess.  (Ky.  2010);  H.R.  1357, 2010  Leg.,  36th  Reg.  Sess.  (La. 
2010);  H.R.  643, 2010  Leg.,  125th  Reg.  Sess.  (Miss.  2010);  H.R.  7778, 2010  Leg.,  Reg.  Sess.  (R.I. 
2010);  H.R.  4504,  1 18th  Gen.  Assemb.,  2d  Reg.  Sess.  (S.C.  2010);  Legis.  B.  285,  101st  Leg.,  1st 
Reg.  Sess.  (Neb.  2009);  Assemb.  B.  4069, 213th  Leg.,  2d  Ann.  Sess.  (N.J.  2009);  S.B.  1 121, 193d 
Gen.  Assemb.,  Reg.  Sess.  (Pa.  2009). 

388.  Legislators  may  find  it  necessary  to  find  compliance  between  the  state's  age  of  consent 
law  and  its  sexting  law.  See  Weins  &  Hiestand,  supra  note  1 12,  at  50  n.345  (citing  Smith,  supra 
note  14,  at  524-25). 

389.  This  Note  and  proposed  statute  do  not  address  images  created,  obtained,  and  distributed 
by  minors  for  commercial  purposes.  Legislators,  however,  will  likely  need  to  address  the  issue  in 
whatever  manner  they  deem  appropriate.  Compare  Weins  &  Hiestand,  supra  note  1 12,  at  32-33 
nn.253-58  (detailing  difficulty  of  determining  criminal  justice  response  where  commercial  purposes 
were  involved  but  concluding  that  many  minors  will  benefit  from  the  rehabilitative  resources  of  the 
juvenile  justice  system  and  that  cases  should  be  determined  on  an  individual  basis),  with  Shafron- 
Perez,  supra  note  103,  at  435  n. 30  (stating  that  "[t]he  author  strongly  believes  that  any  person, 
including  a  minor,  who  creates  sexually  explicit  material  with  the  use  of  minors  for  the  purposes 
of  profit  should  be  charged  with  violations  of  child  pornography  laws"). 

390.  Weins  &  Hiestand,  supra  note  1 12,  at  50  n.346. 


336  INDIANA  LAW  REVIEW  [Vol.  44:301 


sexually  explicit  conduct. 

(b)  A  minor  may  not  possess  an  image,  photograph,  or  other  depiction 
of  another  minor  in  a  state  of  nudity  or  engaged  in  sexually  explicit 
conduct. 

(c)  A  minor  who  knowingly,  voluntarily,  and  without  malicious  intent 
possesses,  transmits,  or  distributes  an  image,  photograph,  or  other 
depiction  of  himself  or  herself,  or  of  another  minor,  at  least  thirteen 
years  of  age,  in  a  state  of  nudity  or  in  sexually  explicit  conduct  will 
be  adjudicated  to  the  juvenile  diversionary  program. 

(d)  Offenders  of  subsection  (c)  will  be  adjudicated  delinquent  and  face 
additional  penalties  if  the  minor  has 

i.     been  adjudicated  delinquent  under  this  section  before; 

ii     distributed  depictions  of  other  minors; 

iii.  created  or  transferred  depictions  in  order  to  humiliate 
another  minor;391 

iv.   exhibited  malicious  intent;  or 

v.    distributed  more  than  five  unrequested  images. 

(e)  Minors  adjudicated  delinquent  under  subsection  (c)  and  not  waived 
to  criminal  court  will  have  their  records  expunged  upon  their 
eighteenth  birthday.392 

(f)  A  minor  adjudicated  under  this  section  may  be  waived  to  criminal 
court  if  he  or  she  has  previously  been  adjudicated  two  or  more  times 
under  this  statute  and  has  a  prior  unrelated  sexual  offense. 

(g)  Minors  adjudicated  under  this  section  in  juvenile  court  shall  not  be 
charged  under  the  state's  child  pornography  or  obscenity  laws.393 

(h)  Minors  adjudicated  under  this  section  in  juvenile  court  shall  not  face 


391.  A  fine  line  may  exist  between  an  intent  to  humiliate  and  malicious  intent.  It  is  under 
these  "cyberbullying"  circumstances  where  an  inquiry  into  the  number  of  distributions  made  might 
indicate  a  more  malicious  intent  versus  a  more  isolated,  immature  bullying  incident. 

392.  See  Levick  &  Moon,  supra  note  49,  at  1047-49. 

393.  See  supra  notes  372-79  and  accompanying  text;  see  also  Weins  &  Hiestand,  supra  note 
112,  at  52-54  (advocating  for  provision  that  exempts  teens  adjudicated  for  sexting  from  being 
prosecuted  under  the  state's  child  pornography  laws). 


2010]  SEXTING  337 


registration  "in  the  state's  registration  program 


»394 


(i)  This  statute  does  not  cover,  replace,  or  prevent  any  prosecution  of  a 
minor  for  images  created,  transferred,  possessed,  or  obtained 

i.  through 
i.  threats; 
ii.  coercion;  or 
iii.  involuntary  means; 

ii.  with  malicious  intent. 

(j )  This  statute  does  not  prevent  the  prosecution  of  a  minor  for  willfully, 
maliciously,  or  repeatedly  attempting  to  obtain  an  image, 
photograph,  or  other  depiction  of  another  minor  through  coercion  or 
threats,  even  if  unsuccessful.395 

Diversionary  program.  The  adjudication  alternative  program  shall  be 
restricted  to  a  person  under  eighteen  years  old  who  is  in  violation  of 
sections  (a)-(d),  does  not  have  a  prior  sexual  offense,  did  not  use 
coercion,  "force  or  illicit  substances,"  and  is  a  first-  or  second-time 
offender  under  this  statute.396  Additionally,  concerns  of  law  enforcement 
and  the  victim  should  be  taken  into  account.397  The  education  portion 
will  include  the  legal  ramifications  of  sexting,  the  social  impact  it  can 
have  on  their  lives,  as  well  as  ten  eight-hour  days  of  community  service. 
Third-time  offenses  shall  be  misdemeanors  in  the  juvenile  court398  and 
subject  to  the  appropriate  penalty.399 

Definitions.      Under  this  statute,  nudity  is  defined  as  "lascivious 
exhibition  of  the  genitals  or  pubic  area  of  any  person."400    Sexually 


394.  Weins  &  Hiestand,  supra  note  1 12,  at  53-54  (cautioning  against  adding  juvenile  sexters 
to  the  state's  sex  offense  registry). 

395.  See  Richards  &  Calvert,  supra  note  5,  at  13  n.47  (citing  Fla.  Stat.  Ann.  §  784.048 
(West,  Westlaw  through  2010  legislation)). 

396.  Heck,  supra  note  4,  at  28-29. 

397.  Id.  at  29. 

398.  Weins  &  Hiestand,  supra  note  1 12,  at  52. 

399.  If  obtained  voluntarily,  this  penalty  would  ideally  be  based  on  some  form  of  an  escalating 
home  detention  penalty  with  a  prohibition  on  accessing  the  Internet  and  having  a  cell  phone  with 
texting  ability.  For  example,  a  third  offense  might  involve  a  ten-day  home  detention  with  no  access 
to  the  Internet  or  a  cell  phone  that  could  text,  while  a  fourth  offense  could  require  a  thirty-day  home 
detention  with  no  access  to  the  Internet  or  a  cell  phone  that  could  text.  See,  e.g.,  Levick  &  Moon, 
supra  note  49,  at  1052-53. 

400.  See  Calvert,  supra  note  1 17,  at  53  (citing  the  federal  definition  of  child  pornography  at 
18  U.S.C.  §  2256(2)(A)(v)  (2006)). 


338  INDIANA  LAW  REVIEW  [Vol.  44:301 


explicit  conduct  "means  actual  or  stimulated  (i)  sexual  intercourse, 
including  genital-genital,  oral  genital,  anal-genital,  or  oral-anal,  whether 
between  persons  of  the  same  or  opposite  sex;  (ii)  bestiality;  (iii) 
masturbation;  [or]  (iv)  sadistic  or  masochistic  abuse."401 

5.  Educating  Teens  and  Parents. — Finally,  parents  and  educators  must  do 
more  to  ensure  that  juveniles  are  aware  of  the  consequences  that  may  result  from 
their  actions.402  Successfully  educating  teens  and  their  parents  alleviates  the  need 
for  any  state  action.403  Parents  can  preemptively  act  by  increasing  their 
supervision  and  control  over  their  children's  digital  behavior.404  The  ultimate  role 
parents  take  must  involve  more  than  occasionally  talking  to  their  children  or 
rifling  through  their  teens'  cell  phone  pictures.  Teens  are  no  less  likely  to  engage 
in  sexting  when  their  parents  actively  monitor  their  cell  phones'  content.405 
Teens,  however,  cannot  enter  into  a  cell  phone  contract  without  a  parent's 
consent,  and  parents  have  the  ability  to  limit  the  features  available  on  cell 
phones.406  At  least  one  survey  has  shown  that  reducing  a  cell  phone's  texting 
abilities  appears  to  decrease  the  likelihood  that  a  teen  will  send  sext  messages.407 

Additionally,  schools  should  make  students  aware  of  the  consequences  of 
sexting.408  Schools  could  prohibit  images  causing  substantial  school  disruption409 
should  courts  find  that  teens  have  a  First  Amendment  right  to  send  and  receive 
certain  images410  or  that  these  images  are  "neither  obscene  nor  amount  to  child 
pornography."411  Furthermore,  schools  can  educate  students  on  the  dangers  of 
sexting.412  Teens  adjudicated  delinquent  should  also  attend  classes  that  primarily 
focus  on  the  legal  implications  as  well  as  the  non-legal  implications  of  sexting.413 

It  is  not  clear  whether  independent  educational  sources  of  information  would 
be  as  effective.  New  Jersey,  for  example,  had  proposed  to  place  informational 
packets  in  purchased  cell  phones.414  It  is  doubtful,  though,  that  inserting  these 


401.  18  U.S.C.  §  2256(2)(A)  (2006). 

402.  Leary,  supra  note  44,  at  559-63. 

403.  Id. 

404.  Calvert,  supra  note  171,  at  34-35. 

405.  LENHART,  supra  note  142,  at  10. 

406.  Corbett,  supra  note  235,  at  7. 

407.  Cf.  Lenhart,  supra  note  142,  at  10  (observing  that  only  nine  percent  of  teens  who 
engaged  in  sexting  had  parents  who  restricted  their  cell  phones'  text  messaging  capabilities). 

408.  Meacham,  supra  note  1 . 

409.  Calvert,  supra  note  1 1 7,  at  34-35. 

410.  See  supra  notes  292-303  and  accompanying  text. 

411.  Calvert,  supra  note  1 1 7,  at  36. 

412.  See  H.R.  1 1 15,  1 16th  Gen.  Assemb.,  2d  Reg.  Sess.  (Ind.  2010)  (a  bill  that  would  allow 
schools  to  offer  education  regarding  sending  "sexually  suggestive  or  explicit  material");  see  also 
Calvert,  supra  note  1 17,  at  40  n.195  (referencing  Indiana  law  requiring  that  students  learn  about 
cyberbullying). 

413.  S.B.  1 121,  193d  Gen.  Assemb.,  Reg.  Sess.  (Pa.  2009). 

414.  Assemb.  B.  4070,  213th  Leg.,  2d  Ann.  Sess.  (N.J.  2009). 


2010]  SEXTING  339 


packets  with  cell  phone  sales,  regardless  of  how  edifying  they  might  be,  would 
make  a  significant  impression  on  juveniles  or  their  parents.  If  placed  with  the 
manual  materials,  the  packets  would  be  ineffective  because  most  people  know 
how  to  use  a  cell  phone  without  consulting  a  manual.  If  placed  with  the  receipt, 
the  packets  would  be  ineffective  because  purchasers  tend  to  set  receipts  aside.  In 
either  scenario,  parents  are  likely  to  overlook  potentially  valuable  educational 
materials.  The  television  network  MTV,  however,  has  created  an  educational 
campaign  called  "A  Thin  Line"  that  addresses  "sexting,  cyberbullying,  and  digital 
dating  abuse."415  It  is  unclear  whether  the  campaign  has  made  measurable 
progress,416  but  ultimately,  society's  answer  to  sexting  will  require  a  multifaceted 
approach  utilizing  both  public  and  private  efforts.417 

Conclusion 

States  currently  have  the  opportunity  to  address  sexting  meaningfully  as  they 
work  to  become  compliant  with  the  Adam  Walsh  Act.  The  history  of  our  juvenile 
justice  system  has  primarily  relied  on  rehabilitation,  a  policy  justification  that  can 
continue  when  addressing  sexting.  Over  the  past  several  years,  juveniles  have 
found  themselves  in  various  forms  of  legal  trouble  as  they  have  faced  prosecution 
under  child  pornography  laws  for  recording  and  often  sending  what  can  seem  like 
legal  acts.  The  Supreme  Court  has  struck  down  certain  child  pornography  laws, 
however,  on  the  basis  that  the  perpetrators  have  not  recorded  an  actual  crime  or 
created  a  specific  victim. 

Nevertheless,  states  should  deter  sexting  because  it  is  in  a  state's  interest  to 
ensure  that  sexual  images  depicting  minors  do  not  proliferate  as  the  Internet  and 
cell  phone  communications  continue  to  advance.  But  teenagers,  who  are  by 
nature  exploring  their  sexuality,  should  not  face  the  life-altering  prospect  of 
ending  up  on  a  sex  offender  registry  for  an  ill-advised,  hormone-driven  mistake. 

For  the  vast  majority  of  sexting  incidents,  the  solution  should  be  to  continue 
in  the  tradition  of  the  juvenile  court  system  and  focus  on  rehabilitation.  Focusing 
on  the  rehabilitation  approach  ensures  that  teens  who  sext  will  receive  the 
necessary  education  and  treatment  for  their  offenses  without  having  their  lives 
turned  upside  down  in  the  process.  Additionally,  although  this  approach  prevents 
a  teen  from  facing  the  same  consequences  as  an  adult  predator,  it  still  allows 
states  to  deter  this  undesirable  behavior  by  allowing  some  form  of  punishment. 
It  also  gives  parents  an  incentive  to  actively  educate,  monitor,  and  control  their 
children's  activities.  In  conclusion,  a  pragmatic  and  moderate  step  taken  by  state 
legislatures  in  addressing  sexting  will  provide  states  an  option  to  address  sexting 
that  neither  condones  nor  takes  the  most  egregious  step  of  charging  shortsighted 
or  immature  juveniles  under  child  predator  laws. 


415.  MTV  Launches  A  Thin  Line'  To  Stop  Digital  Abuse,  MTV.COM  (Dec.  3,  2009,  9:17 
A.M.),  http://www.mtv.eom/news/articles/l 627487/2009 1 203/story.jhtml. 

416.  Arcabascio,  supra  note  49,  at  28-29. 

417.  See,  e.g.,  Calvert,  supra  note  117,  at  32-42  (discussing  multiple  legal  and  non-legal  ways 
of  addressing  sexting).