Edward B. Foley - Election Law and Litigation

ELECTION LAW AND LITIGATION

EDITORIAL ADVISORS

Vicki Been
Boxer Family Professor of Law
New York University School of Law

Erwin Chemerinsky
Dean and Distinguished Professor of Law
University of California, Irvine, School of Law

Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Peter and Kirsten Bedford Senior Fellow
The Hoover Institution
Senior Lecturer in Law
The University of Chicago

Ronald J. Gilson
Charles J. Meyers Professor of Law and Business
Stanford University
Marc and Eva Stern Professor of Law and Business
Columbia Law School

James E. Krier
Earl Warren DeLano Professor of Law
The University of Michigan Law School

Richard K. Neumann, Jr.
Professor of Law
Maurice A. Deane School of Law at Hofstra University

Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School

David Alan Sklansky
Yosef Osheawich Professor of Law
University of California at Berkeley School of Law

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Library of Congress Cataloging-in-Publication Data

Foley, Edward B., author.

Election law and litigation : the judicial regulation of politics / Edward B. Foley, Chief Justice Thomas J. Moyer Professor for the Administration of Justice and the Rule of Law, The Ohio State University; Michael J. Pitts, Professor of Law, Indiana University School of Law; Joshua A. Douglas, Assistant Professor of Law, University of Kentucky College of Law.

pages cm. (Aspen casebook series)

Includes bibliographical references and index.

eISBN 978-1-4548-4766-3

1. Election law United States. I. Pitts, Michael J., author. II. Douglas, Joshua A., author. III. Title.

KF4886.F65 2014

342.7307 dc23

2014000119

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To Miranda, Max, and Robbie, who have been enthusiastic supporters of this project ever since its origins.

Ned

To Jenny, William, and Jonathan, who are the best family one could ever hope for.

Mike

To my wife Bari and daughter Caitlyn, who gave me the vote of confidence to take on this project.

Josh

To our wonderful students, whose feedback on earlier drafts helped make this book as student-friendly as possible.

Ned, Mike, and Josh

SUMMARY OF CONTENTS

I
The Law of Legislative Districting

II
The Law of Nominating Candidates

III
The Law of Campaign Practices

IV
The Law of Voting

CONTENTS

INTRODUCTION

This book covers the law that governs the operation of elections as well as the campaigns leading up to those elections. Implicit in this very first sentence is the fact that this field can be subdivided between election law on the one hand and campaign law on the other. Further subdivisions of election law are useful. There is the law that governs the nomination of candidates, sometimes called ballot access law and which includes the distinctive rules concerning primary elections, to be distinguished from the law that governs the casting and counting of votes for the nominated candidates. This latter area, regulating the voting process itself, is sometimes called election administration, although that term is confusing since the distinctive rules for nominating candidates could be considered an aspect of election administration. Consequently, we prefer to call this latter area simply voting law.

Another distinctive component of election law is the law that governs the drawing of boundary lines for legislative districts, to define the specific constituency that will elect each member of the legislature. Obviously, this districting law is inapplicable to the election of candidates for statewide offices, such as Governor or U.S. Senator. Thus, districting law might be considered as belonging to a subfield of election law that concerns the special rules for different types of election offices. The distinctive rules for the operation of the Electoral College, which uniquely govern the election of the U.S. President, would be considered another component of this office-specific set of election laws. (The same holds true for the distinctive rules concerning referenda, initiatives, and other ballot propositions, even though they involve voting on issues rather than candidates.)