America Votes!: A Guide to Modern Election Law and Voting Rights

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American Bar Association, 2008 - Law - 375 pages
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This book is a snapshot of America's voting and electoral practices, problems, and most current issues. The book addresses a variety of fundamental areas concerning election law from a federal perspective such as the Help America Vote Act, lessons learned from the 2000 and 2004 presidential elections, voter identification, and demographic and statistical experts in election litigation, and more. It is a useful guide for lawyers as well as law school professors, election officials, state and local government personnel, and election workers.
 

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Contents

LESSONS LEARNED FROM THE 2000 AND 2004 PRESIDENTIAL ELECTIONS
1
II The 2000 Election
2
C PROBLEMS AT THE POLLS ON ELECTION DAY
4
D WHEN THE MEDIA MAKES THE NEWS
6
E LACK OF ESTABLISHED STANDARDS LEADS TO CONTENTIOUS RECOUNT
7
F TIME PICKS A SIDE
9
A LEARNING FROM OUR PAST?
10
LONG LINES AND CONFUSION
11
VI Practice Pointers for Legislative Personnel Involved in the Redistricting Process
170
Notes
171
THE ROLE OF DEMOGRAPHIC AND STATISTICAL EXPERTS IN ELECTION LAW LITIGATION
177
III The Expanding Role of Experts
178
IV Expert Testimony in Section 2 VoteDilution Litigation
179
V Unique Justification for Applying Daubert in Election Litigation
180
VI DaubertKumho Tire
181
VII OutcomeDeterminative Nature of Daubert Hearings
182

PROPOSALS FOR IMPROVEMENT
14
IV Lessons from the 2000 and 2004 Elections
15
B THE 2004 ELECTION
17
Notes
18
THE LANGUAGE ASSISTANCE PROVISIONS OF THE VOTING RIGHTS ACT AND THE 2006 REAUTHORIZATION
23
II The Development of Sections 203 and 4f 4 of the Voting Rights Act
24
III The 2006 Reauthorization of Section 203
26
A AMENDMENTS AND OTHER ATTEMPTS TO WEAKEN SECTION 203 IN 2006
28
Issues of Compliance and Efficacy
29
V Conclusion
31
Notes
32
MEETING THE DEMAND OF A GROWING LANGUAGEMINORITY VOTING POPULATE
41
II Voting Rights Act Protections for LanguageMinority Voters
42
B SECTION 2 PROTECTION FOR LANGUAGE MINORITIES
43
III Meeting the Demand for an Increased Need to Serve LanguageMinority Voters
44
A LOS ANGELES COUNTYS COMPLIANCE WITH SECTION 203 OF THE VRA
45
B BEST PRACTICES FOR LANGUAGE ASSISTANCE
46
2 Oral Language Assistance
47
3 Promotion Outreach and Education
48
4 Role of Local CommunityBased Organizations
49
IV Conclusion
50
Notes
51
VOTER PROTECTION ON ELECTION DAY HOW THE GOVERNMENT POLL WORKERS POLITICAL PARTIES AND NONPARTISAN ADVO...
55
II The Role of the Government
56
III The Role of the Poll Worker
58
IV The Role of Political Parties and Candidates
60
V The Role of the Nonpartisan Voter Advocate
61
VI Conclusion
62
THE PROMISE AND PRACTICE OF ELECTION DAY REGISTRATION
65
II A Short History of Voter Registration in the United States
66
From the 1970s to the Present
68
IV Election Day Registration and Increased Voter Turnout
71
V Impact of Election Day Registration on Election Administration
73
B EDR AND ELECTION ADMINISTRATION
75
C THE IMPACT OF EDR ON REDUCING NEED FOR PROVISIONAL BALLOTS
76
E RESULTS OF 2007 DEMOS SURVEY OF ELECTION ADMINISTRATORS IN EDR STATES
77
VI Conclusion
78
Notes
79
FELON DISENFRANCHISEMENT
91
III The Judicial Decisions
92
IV The Constitutional Issues
96
V Other Federal Statutes
97
VI The International Trend
98
VII Conclusion
99
Notes
100
SECTION 5 AND THE VOTING RIGHTS ACT REAUTHORIZATION AND AMENDMENTS ACT OF 2006
105
II The Original Logic of the Preclearance Provision
106
III Changing the Trigger Losing the Logic
108
B THE 1982 EXTENSION
109
FROM DISENFRANCHISEMENT TO INCREASED PROTECTION
110
SEPARATING SECTIONS 2 AND 5
111
DEFINING DISCRIMINATORY PURPOSE
112
DEFINING REPRESENTATION
113
V The Redisricting Cases and the 2006 Amendments
115
A AN EVEN MURKIER PROVISION
117
VI Section 5 Today
119
B A BROKEN TRIGGER
120
Notes
121
REPORTS OF MY DEMISE HAVE BEEN OVERSTATED ASSESSING THE CONSTITUTIONALITY OF THE RECENTLY RENEWED SECTION...
129
II The Preemptive Role of the Section 5 Preclearance Provision
131
B REVISING THE COVERAGE FORMULA
132
C DISTORTING THE GOALS OF SECTION 5 AND ARGUMENTS OF RACIAL BALKANIZATION
133
Assessing Evidence of Ongoing Voting Discrimination
135
A EVIDENCE OF INTENTIONAL DISCRIMINATION
137
2 Resisting Change to the Status Quo
138
3 Racial Selectivity
139
6 Section 5 Enforcement Actions
141
SECTIONS TWO AND FIVE AS AMENDED BY THE VOTING RIGHTS ACT REAUTHORIZATION AND AMENDMENTS ACT OF 2006
147
II Background and Overview of Section 2
148
A VOTE DILUTION
149
B ELEMENTS OF A VOTEDILUTION CLAIM
151
1 Senate Report Factors
152
2 Special Circumstances Doctrine
153
Appearances Do Matter
154
IV Background and Purpose of Section 5 as Amended in 2006
157
A SECTION 5 RETROGRESSION TEST
158
C RELEVANCE OF SECTION 2 EVIDENCE TO PROVE RETROGRESSIVE INTENT OR DISCRIMINATORY PURPOSE UNDER SECTION 5
159
2 Pouring Old Poison into New Bottles
162
3 Impact of VRARA of 2006
164
A Peek into the Future
166
1 Geographical Compactness
167
2 Minority Electoral Opportunity
168
4 Candidates of Choice
169
IX Experts on Position Bias in Election Litigation
183
XI Expert Testimony on Voting Machine Downtime
185
XII Lay Testimony of Election Officials in Challenge to Voter ID Requirement
186
XIV Pertinence of Daubert Factors in Assessing Reliability
187
XVI Failure to Pass Daubert Threshold
189
XVIII Failure to Provide Basis of Opinions Under Rule 26a2 B
190
XX Expert Evidence and Federal Case Management
193
GOVERNMENTISSUED PHOTO IDENTIFICATION AND PROOF OF CITIZENSHIP REQUIREMENTS FOR VOTERS
201
II State of the Law as of 2004
202
B THE HELP AMERICA VOTE ACT
203
III Arguments Made by Proponents and Opponents on the Need for More Restrictive Identification and Proof of Citizenship Requirements
204
A ARGUMENTS MADE BY PROPONENTS
205
2 Ritzy the Dog Superman and Inflated Voter Registration Rolls
206
1 New Jersey 2005
207
3 Washington Gubernatorial Election
208
A EAC VOTER FRAUD AND VOTER INTIMIDATION STUDY
209
V Federal Legislative Efforts to Introduce More Restrictive Requirements
210
A SEN MCCONNELLS AMENDMENT TO THE COMPREHENSIVE IMMIGRATION ACT OF 2006
211
B FEDERAL ELECTION INTEGRITY ACT OF 2006
212
A FUNDAMENTAL RIGHT TO VOTE
213
B POLL TAX
214
C DISCUSSION OF CHALLENGED LEGISLATION AND REFERENDA
216
2 Indiana
220
3 Arizona
222
4 Missouri
224
5 Albuquerque New Mexico
226
VII Conclusion
227
FUNCTION FOLLOWS FORM VOTING TECHNOLOGY AND THE LAW
241
II A Framework for Understanding Voting Technologies
244
III The Historical Dynamics of Voting Technology Choice
247
IV The Success of the Help America Vote Act
251
V The Backlash Against the Help America Vote Act and Direct Recording Electronic Devices
253
VI The VoterVerifiable Paper Audit Trail VVPAT
255
Notes
258
THE GROWTH OF EARLY AND NONPRECINCT PLACE BALLOTING WHEN WHY AND PROSPECTS FOR THE FUTURE
261
II A Typology of Early Voting Laws and Procedures
262
B VOTEBYMAIL
265
C EARLY INPERSON VOTING14
266
III Trends in Nonprecinct Voting
267
B THE GROWTH IN EARLY VOTING
268
IV The Politics of Early Voting Reform
269
A WHY ADOPT EARLY VOTING?
270
B THE FLORIDA EXPERIENCE36
272
2 Getting Out the Early Vote
273
3 Queuing Up to Vote Early
274
V Conclusion
276
Notes
277
NUTS AND BOLTS FOR ELECTION OFFICIALS MISSISSIPPI A CASE STUDY
281
II General Overview
282
1 PreElection Day Duties
283
2 PostElection Day Duties
285
D STATE BOARD OF ELECTION COMMISSIONERS
287
B ELECTION DAY RESPONSIBILITIES
288
C POSTELECTION DAY DUTIES
291
2 Election Contests E
292
Gnemi and Brown
293
VI Conclusion
296
ELECTION CHALLENGES INVOLVING CANDIDATES FOR FEDERAL OFFICE
301
B STATE LAW
304
III ModernDay Challenges to Federal Elections
305
B CANDIDATE QUALIFICATIONS
310
IV Reform Proposals
311
V Conclusion
312
BAILOUT UNDER THE VOTING RIGHTS ACT
319
II History of Bailout and the Current Bailout Provisions
320
III Process of Obtaining a Bailout
321
GATHERING INFORMATION
322
OBTAINING DECLARATORY JUDGMENT
324
V Why Havent Other Jurisdictions Bailed Out?
325
2 Cost and Administrative Burden
326
4 Choosing Not to Bail Out
328
Notes
329
HELP AMERICA VOTE ACT OF 2002 ORIGINS AND IMPACT
335
III HAVAs Critical Provisions
337
IV Implementation Issues
339
B STATEWIDE VOTER REGISTRY SYSTEM SWVR
342
C PROPOSED FEDERAL IMPLEMENTATION CHANCES
345
V Conclusion
346
Notes
347
Table of Cases
353
Index
359
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