Election Law Society

Top Two Primaries and Third Party Voters: A Due Process Mathematical Mismatch

Election Law Society · January 30, 2019 ·

By: Jonathan Barsky

California currently employs an unusual electoral system, which is colloquially known as the “Top Two” primary, in both federal and state elections. Under this system, all of the candidates are thrown into a nonpartisan “jungle primary” that takes place in June and the two candidates who earn the most votes, regardless of party affiliation, advance to the November general election. The only exception to these rules is the presidential election, which still remains open to all major party candidates and several minor party and write-in candidates.

Over two posts, I will address potential constitutional flaws in California’s primary system. This post will discuss a Fourteenth Amendment injury that voters suffer stemming from the Due Process Clause, while the second post will analyze a First Amendment objection rooted in the associational rights of political parties, focusing on California Democratic Party v. Jones and Washington State Grange v. Washington State Republican Party.

Release from a Political Life Sentence: How Florida Voters Approved the Largest Enfranchisement in 47 Years – Part II

Election Law Society · January 23, 2019 ·

By: Zach McDonnell

This post is the second post of a two-part series. Part One focused on the provisions of the Florida Constitution that disenfranchises ex-felons, how the administration of Governor Rick Scott strictly interpreted those provisions, and the now-moot lawsuit to upend Governor Scott’s felon-disenfranchisement rules.

In late 2014, the PAC Floridians for a Fair Democracy started the long process of putting a rights-restoration amendment in front of Florida voters, with an initial goal of making it to the ballot in 2016; however, the signature threshold required under Florida law (eight percent of votes cast in the previous presidential election—which in 2014 amounted to 766,200 signatures) was far too formidable to be met in such a short amount of time. By October 2016, restoration advocates, led by the non-profit Florida Rights Restoration Coalition (FRRC), had garnered only enough signatures to trigger review by the Florida Supreme Court for the ballot initiative’s language—a mere 76,632 (the Florida Supreme Court later approved the language on April 20, 2017).

Release from a Political Life Sentence: How Florida Voters Approved the Largest Enfranchisement in 47 Years – Part I

Election Law Society · January 21, 2019 ·

By: Zach McDonnell

In the 2018 midterm elections, Florida had such close elections that both its Senate and Governor’s races appeared headed for a recount, even several days after November 6. One election in the state, however, presented a resounding victory for a population that’s not used to seeing very many wins, in court or in the political process: convicted ex-felons. 64.5% of Florida voters approved of Amendment 4, a Florida state constitutional amendment that will automatically restore the voting rights of at least 1.4 million people—the single largest enfranchisement of Americans since the ratification of the Twenty-Sixth Amendment in 1971. Now, all felons—with the exception of those convicted of murder and felony sexual offenses—will automatically have their voting rights restored upon the completion of their sentences, including probation and parole. Those convicted of murder and sex offenses will instead be relegated to the restoration system that, prior to Amendment 4’s passage, all Florida ex-felons had to endure.

The Uninstructed Delegate: How Wisconsin’s Presidential Primary System Respects the Power of Voters and Parties

Election Law Society · January 16, 2019 ·

By: Colin Neal

In the wake of the historically violent 1968 Democratic National Convention, there was a national surge in favor of placing more of the political power of parties in the hands of the voters rather than the party elites. In the following decades, states have shifted towards a nomination system that ensures that the winner of a state’s primary—in which citizens have the right to vote for the candidate they choose for the nomination—will receive that state’s votes for nomination at the national party. The safeguards in place for maintenance of party power, such as the Democrat’s Superdelegates, ensure that some power remains in the hands of the party elites. However, these safeguards have also come under attack for their fortification of the party favorite early into an election, regardless of the popular will.

Hitting Pause on Ballot Initiatives: How State Legislatures Can Ensure Good Citizen Lawmaking While Still Respecting Popular Will

Election Law Society · January 14, 2019 ·

By: Reeana Keenen

In my last post, I discussed the merits and drawbacks of ballot initiatives as a form of direct democracy. The main contention with ballot initiatives is whether, in practice, they reflect popular will. In D.C. this past summer, the D.C. Council cited this concern when they decided to overturn Initiative 77, which had been approved by a 12 percent margin of voters in the same election that allowed many of those same Council members to secure their Council seats. The Council claimed the low turnout in the primary election on which the ballot measure appeared was so low it could not reflect the true will of the people. The Council further claimed that Initiative 77 passed with too narrow a margin to allow it to stand.