September 2020

Bush v. Gore and equal protection “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” This is the sentence that has caused so much consternation, from the majority opinion in Bush v. Gore — the case that, as its name reveals, involved the two presidential candidates in 2000 and their fight to win Florida and thus an Electoral College majority. This one sentence has been called, ever since that fateful December night when the court’s ruling was released, a confession of...

Due process and election administration The due process clause of the 14th Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” But just what is “due process” can be hard to define. With respect to state election activities, a variety of federal appellate courts have struggled to determine whether a change or defect in the state’s election mechanics has so interfered with voters’ ability to exercise their right to vote – a fundamental liberty interest – that it violates the guarantee...

The Democracy Canon The “democracy canon” is a term coined in a 2009 law review article by UC Irvine election law scholar, Richard Hasen, to describe the principle that courts should liberally interpret election statutes in favor of enfranchising more voters and maximizing voter choice --  particularly when legislative language that limits the right to vote is ambiguous or unclear. The underlying idea is that the right to vote is so fundamental to a democracy that courts should avoid overly narrow interpretations of legislation that result in restricting this right. Hasen...