Volume 96, Number 4

Most scholars who study felon disenfranchisement trace its roots back to Reconstruction. Southern states drew up laws to disenfranchise people convicted of felonies as an ostensibly race-neutral way to diminish the political power of newly freed Black Americans. Viewed against this historical backdrop, the onset of mass incarceration in the current era expands the impact of a practice intended to be both racist and punitive from the start.

This account is true, but it is incomplete. Non-criminal mass institutionalization has also played—and continues to play—a role in systematic disenfranchisement. Marshaling a wealth of archival and historical evidence, from newspapers, legislative debates, congressional hearings, and court cases, I reveal that institutional disenfranchisement is not just about mass incarceration—a singular phenomenon sparked by the Civil War that happens solely within the carceral state and targeted only freed Black people. Institutional disenfranchisement began much earlier, included more spaces than the prison, and initially targeted white men. Indeed, the more familiar prison disenfranchisement had a shadowy twin within the welfare state. Civil death includes more ghosts than previously imagined.

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights but based on their rights as current and future members of the political community. This is the second of two Essays. The first Essay focused on voting restrictions impacting Asian American and Latino voters. The second Essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 Census. Together, the Essays critique the exclusion of immigrants from the political community because this exclusion compromises representational equality.

The 2020 election season placed remarkable pressure on the U.S. election system. As the COVID-19 pandemic ravaged a politically polarized nation, American voters challenged a range of election regulations, looking to the courts for relief from laws that made voting particularly onerous during extraordinary circumstances. An examination of election law jurisprudence over this period reveals, among other things, the judiciary’s repeated reliance on a single case: Purcell v. Gonzalez. While its holding is less than clear, the decision in Purcell, at its core, governs the appropriateness of judicial intervention in election disputes on the eve of a political contest. The Court could have elucidated Purcell’s true meaning during this unique election cycle but, instead, it seems to have made matters worse. This Article argues that the Supreme Court’s repeated invocation of Purcell during the 2020 election cycle introduced an empty vessel for unprincipled decisionmaking and inconsistent rulings that only served to aggrandize election-related concerns, ultimately harming the nation’s most vulnerable voters. Part I describes the facts in Purcell, and what one might contend is its central holding. Part II highlights the chief deficiencies of the case, revealing a fundamental incoherence in its reasoning that augments the potential for government actors—including courts—to exploit Purcell in the lead up to an election. Part III examines more closely the judiciary’s application of Purcell in the 2020 primaries and general election, revealing the dangers it poses to voting rights and the democratic process.

How can self-governance work in a diverse society? Is it possible to have a successful multiracial, multiethnic democracy in which all groups are represented fairly? What kinds of electoral and governing institutions work best in a pluralistic society? In the United States today, these are not just theoretical concerns but fundamental inquiries at the core of an urgent question with an uncertain answer: How does American democracy survive?

This Article looks for an answer by placing the United States in a broader context of multiracial, multiethnic democracies around the world. The basic argument is straightforward: The majoritarian politics of single-winner electoral districts and the two-party system it produces is bad for both minority representation and, by extension, for democracy itself. A more inclusive and stable democracy requires a proportional system of voting and more than two parties. This Article thus proceeds in three parts. Part I takes a broader look at the theory of multiracial, multiethnic democracy, with a particular focus on the role of parties and elections in sustaining or undermining multiracial, multiethnic democracy. Part II looks more closely at minority representation in the United States through the lens of the American party and electoral system and its deep inadequacies in supporting multiracial, multiethnic democracy. Part III argues that proportional representation is the logical solution for the United States if it wants to have a chance at being a stable multiracial, multiethnic democracy.

Many judges and scholars have read Section 2 of the Fourteenth Amendment as evidence of the Constitution’s commitment to universal representation—the idea that representation should be afforded to everyone in the political community regardless of whether they happen to be eligible to vote. Typically, this analysis starts and stops with Section 2’s first clause, the Apportionment Clause, which provides that congressional seats are to be apportioned among the states on the basis of “the whole number of persons in each State.” Partly for this reason, the Supreme Court’s lead opinion in Evenwel v. Abbott rejected the argument that “One Person, One Vote” requires states to equalize the number of adult citizens when drawing legislative districts, affirming that states can draw districts with equal numbers of persons.

But skeptics of the universal representation theory of the Fourteenth Amendment, most notably Justice Alito, have complained that this analysis is flawed because it ignores Section 2’s less-known and never-enforced second clause: the Penalty Clause. Under the Penalty Clause, states that deny or abridge otherwise qualified citizens’ right to vote are penalized with a reduction of their congressional representation. Any theory of representation drawn from the Fourteenth Amendment, the skeptics argue, must grapple with all of Section 2.

This Article takes up that call and explains how the Penalty Clause is not only consistent with but also reinforces the Fourteenth Amendment’s broader commitment to universal representation. Contrary to common misconceptions about the Penalty Clause, the Clause is structured so that the state as a whole loses representation in Congress, but no individual within the state is denied representation. In other words, the Penalty Clause does not operate by subtracting those wrongfully disenfranchised from a state’s total population prior to congressional apportionment. Rather, it imposes a proportional reduction derived from the percent of the vote-eligible population denied the vote that is scaled to an offending state’s total population. The Penalty Clause thus does nothing to upend Section 2’s advancement of universal representation. If anything, the Penalty Clause actually reinforces Section 2’s commitment to that idea. By reducing a state’s representation proportionally, it contemplates the representational interests of nonvoters, a key feature of the universal representation theory.

Questions about the state legislative role in determining the identity of presidential electors and electoral slates, and the permissible extent of a departure from regular legislative order, have recently reached peak prominence. Much of the controversy, including several cases to reach the Supreme Court, has concerned the constitutional delegation of power over pre-election rules. But a substantial amount of attention has also focused on the ability of state legislatures to appoint electors in the period between Election Day and the electors’ vote.

An asserted legislative role in the post-election period has two ostensible sources: one constitutional and one statutory. The constitutional provision—the portion of Article II allowing states to appoint electors in the manner the legislature directs— has received substantial scholarly and judicial attention. In contrast, there has been no prominent exploration of the federal statute, 3 U.S.C. § 2, despite text similar to the constitutional provision. This piece is the first to explore that federal statute as an ostensible basis for a legislature’s appointment of electors beyond the normal legislative process, in the aftermath of an election that has “failed to make a choice.” After reviewing the constitutional controversy, the Essay canvasses the history of the statute and its context. And it discovers a previously unreported historical anomaly, which might well affect construction not only of the statutory text, but also the constitutional predicate, in the event of a disputed presidential election.

The threat of extreme and punishing partisan gerrymandering has increased exponentially since 2019 when the Supreme Court held partisan gerrymandering claims nonjusticiable. Although the Court was unanimous in recognizing that partisan gerrymandering can undermine the fair functioning of the electoral process, neither Rucho’s majority nor its dissent acknowledged the unique harm partisan gerrymandering visits upon the operation of our multiracial, multiethnic democracy when coupled with the upsurge of conjoined racial and partisan polarization. The Court’s failure to establish a limiting principle for the degree to which partisanship can usurp the redistricting process means that there is no federal guidance to cabin partisan gerrymandering and no measure to take account of the race-driven effect of the group lockout that partisan gerrymandering often produces. Absent this critical instruction from the Supreme Court, lower courts, civil rights advocates, and affected voters must turn to racial gerrymandering jurisprudence to discern first principles to guide a judicial response to partisan gerrymandering’s particular relation to and compounded effect on account of race. Fortunately, there is a through line from Rucho to the Court’s racial gerrymandering jurisprudence that plausibly permits federal courts to address hybrid racial and partisan gerrymandering claims and parse pure partisanship from punishment—if they are willing.

The right to vote is foundational to our democracy, but it lacks a strong foundation. Voting rights litigants are constantly on their heels, forever responding to state-imposed impediments. In this regard, the right to vote is decidedly reactive: directed and defined by those seeking to limit the right, rather than by those who advocate for it. As a consequence, the right to vote is both deeply fragile and largely impersonal. It is fragile because voters must reckon with flimsy electoral bureaucracies that are susceptible to meltdown from both intentional efforts to limit the franchise and systemic strain. The right to vote is impersonal because, with few exceptions, it is shaped through litigation, rather than comprehensive consideration of voters’ circumstances and needs.

To address these weaknesses, this Article champions the idea that a robust right to vote must be constructed. Unlike most other rights, the right to vote relies on governments to build, fund, and administer elections systems. This obligation is not ancillary to the right to vote; it is foundational to it. Drawing from state constitutional law, electoral management theory, federalism scholarship, and rarely examined consent decrees, we argue that a constructed right to vote incorporates three essential features: electoral adequacy (including the right to adequate funding of elections, the right to competent management, and the right to democratic structures), voting rights legislation tailored to individuals’ experiences, and voting rights doctrines that require states to build their elections systems in rights-promoting ways.

We may be witnessing the emergence of a new kind of vote dilution claim. In a barrage of lawsuits about the 2020 election, conservative plaintiffs argued that electoral policies that make it easier to vote are unconstitutionally dilutive. Their logic was that (1) these policies enable fraud through their lack of proper safeguards and (2) the resulting fraudulent votes dilute the ballots cast by law-abiding citizens. In this Article, I examine this novel theory of vote dilution through fraud facilitation. I track its progress in the courts, which have mostly treated it as a viable cause of action. Contra these treatments, I maintain that current doctrine doesn’t recognize the claim that electoral regulations are dilutive because they enable fraud. However, I tentatively continue, the law should acknowledge this form of vote dilution. Fraudulent votes can dilute valid ones—even though, at present, they rarely do so.

Under my proposed approach, vote dilution through fraud facilitation would be a cognizable but cabined theory. Standing would be limited to voters whose preferred candidates are targeted by ongoing or imminent fraud. Liability would arise only if a measure is both likely to generate widespread fraud and poorly tailored to achieve an important governmental interest. And relief would take the form of additional precautions against fraud, not the rescission of the challenged policy. In combination, these points would yield a mostly toothless cause of action under modern political conditions. Should there ever be a resurgence of fraud, though, the new vote dilution claim would stand ready to thwart it.

In this piece, I examine the political branding of Asian immigrants by comparing the rhetoric used in the political platforms of the Democratic and Republican parties from 1876 to 1924 to the language deployed in U.S. Supreme Court opinions during the same time period. The negative verbiage repeated at national political conventions branded the Chinese as a threat to labor, immoral, unassimilable, diseased, and invaders. Interestingly, the Republican authors of their political platforms were multiracial, and yet they produced rhetoric as harshly anti-Asian as their Democratic counterparts, who included ex-Confederate soldiers and even KKK members. And disappointingly, the Supreme Court picked up this derogatory language found in both parties’ political platforms and continued to echo it in cases that diminished the rights of Chinese and other Asian immigrants. This history is then linked to the present day through the example of the negative impact of politicians’ calling the contemporary COVID-19 pandemic “Kung Flu.”

In its 2014 decision in Lexmark International, Inc. v. Static Control Components, Inc., the Supreme Court began the process of “bringing discipline” to the various elements of prudential standing and suggested that the doctrine as a whole is inconsistent with the Court’s place in the federal separation of powers. Last year, the litany of opinions delivered by a divided Court in June Medical Services L.L.C. v. Russo manifested ongoing confusion about the fate of prohibitions on third-party standing and generalized grievances—two of the traditional prongs of prudential standing. This Note documents the heterogeneous approaches to prudential standing taken in the lower federal courts since Lexmark, and argues that this confusion is partly attributable to the Court’s misleading analysis of the role of judge-made gatekeeping doctrines in our federal system. Judge-made gatekeeping rules are ubiquitous in the federal judiciary, and courts have adopted a wide-range of approaches in the wake of Lexmark’s failure to identify a principle that could cabin its disfavor to only prudential standing rules. This Note argues that courts should instead acknowledge that judge-made gatekeeping rules like prudential standing’s third-party standing rule do a better job than alternatives in upholding the separation of powers values that are at the heart of the Supreme Court’s jurisdictional jurisprudence.

Federal trademark registration helps protect the hundreds of billions of dollars of brand value that trademarks can represent. Recently, interest in the failure-to-function doctrine, which prevents registration of proposed trademarks that consumers do not perceive as marks, has surged at the appellate body of the United States Patent and Trademark Office (USPTO), the Trademark Trial and Appeal Board (TTAB). This Note is the first in-depth, focused critique of the TTAB’s recent failure-to-function jurisprudence. It argues that, as the TTAB currently uses it, the failure-to-function doctrine is incoherent and lacks clarity. On a more granular level, the doctrine rests on inconsistent multifactor tests whose factors the TTAB adds, subtracts, modifies, reconceptualizes, and weighs differently across cases, giving the USPTO little meaningful criteria by which to decide what marks merit registration. This inconsistency risks increasing costs for the USPTO, brands, and consumers by creating uncertainty as to what proposed trademarks the USPTO will approve. In response, this Note proposes combining failure to function with a different trademark doctrine: the doctrine of aesthetic functionality. Replacing failure to function’s unwieldy multifactor inquiries with aesthetic functionality’s narrow focus on competition promises to increase clarity and, in so doing, mitigate or avoid costs to the USPTO, brands, and consumers.