NewYorkUniversity
LawReview

Online Features

2021

Battle Lines/Ballot Lines: Democracy Stabilization and Election Administration

Joseph Krakoff

The prelude of the 2020 election is marred by dark projections of large-scale violence that could disrupt voting or a prolonged count of mail-in ballots requested due to the COVID-19 pandemic. Academics agree that this situation is unlikely to be an isolated occurrence. Rather, extreme polarization risks making violent elections a new norm in American life. Even if violence fails to materialize in November 2020, it is still worthwhile to engage in legal scenario planning to ask the question: What if? This Essay sketches a preliminary, incomplete answer to that question from the perspective of courts.

Taking as an example a complaint seeking to enjoin the Trump campaign from inciting violence, this Essay begins from the assumption that existing Fourteenth Amendment doctrine, forged in the era of 1960s desegregation, lacks a register to fully conceptualize the novel assaults on American democratic institutions today. Specifically, courts tend to employ a strict individual rights focus, which lacks the ability to conceptualize assaults on democracy that do not intentionally target any particular voter and, uncomfortably, asks courts to step into an ex ante regulatory role more familiar for a federal agency than the judicial branch. To fill that gap, courts could learn from international democratic backsliding. Specifically, the concept of a “strategy of tension” lends analytical rigor to scenarios in which regimes actively seek to foment civil unrest, cracking down on opponents and encouraging extrajudicial violence. This framework allows one to recognize such harms as injuries to democracy itself that endanger the supreme democratic principle of the state’s monopoly on the legitimate use of violence, a foundational principle of liberal governance. With that conceptualization in hand, this Essay concludes by forwarding a potential role for courts “in the breach” as exercising emergency powers to stabilize democracy under extreme stress.

2020

Protecting Local News Outlets from Fatal Legal Expenses

Nicole J. Ligon

As lawsuits targeting the press continue to rise in response to today’s political climate, local news outlets are more likely to find themselves facing unexpected legal expenses. Although the national news media can generally weather the costs of libel lawsuits and subpoena requests, smaller news outlets have gone bankrupt or barely escaped such a fate while paying off legal fees, even when these outlets have ultimately been successful in their legal battles. Because local news outlets serve a critical role in underserved communities and are powerful agents of positive social change, they ought to be protected against fatal legal expenses. This Article examines the important functions of local journalism, explains the recent legal challenges that local news outlets have been facing and their resulting impact, and exposes the problematic gaps of statutory frameworks that fail to adequately protect local news outlets from fatal legal expenses. In so doing, this Article argues that enacting strong state anti-SLAPP statutes and reporter’s shield laws is necessary to combat recent costly attacks against the press and to preserve the vitality of the local media.

A Poll Tax by Another Name: Considering the Constitutionality of Conditioning Naturalization and the “Right to Have Rights” on an Ability to Pay

John Harland Giammatteo

Permanent residents must naturalize to enjoy full access to constitutional rights, particularly the right to vote. However, new regulations from U.S. Citizenship and Immigration Services (USCIS), finalized in early August and originally slated to go into effect one month before the 2020 election, would drastically increase the cost of naturalization, moving it out of reach for many otherwise-qualified permanent residents, while at the same time abolishing any meaningful fee waiver for low-income applicants. In doing so, USCIS has sought to condition naturalization and its attendant rights on an individual’s financial status.

In this Essay, I juxtapose the new fee regulations with a growing caselaw and scholarly literature about financial status, voting, and an individual’s ability to pay. Placed alongside the ability-to-pay caselaw—including Griffin v. Illinois and Bearden v. Georgia and, more recently, the litigation about Florida’s felony disenfranchisement provisions—it is clear that the new fee policies should be seen as due process and equal protection violations and struck down. I conclude by noting possibilities for litigation or legislation that would preserve a meaningful safety valve to allow low-income individuals to realize the full benefits of naturalization and access all the rights that come with it.

Assessing the Validity of an Election’s Result: History, Theory, and Present Threats

Edward B. Foley

In the wake of President Trump’s acquittal in the Senate impeachment trial, and even more so because of the COVID-19 pandemic, the United States will need to hold a presidential election in unprecedented circumstances. Never before has an incumbent president run for reelection after the opposing party in Congress has declared that the fairness of the election cannot be “assured” as long as the incumbent is permitted on the ballot. Nor have states been required to plan for a November presidential election not knowing, because of pandemic-related uncertainties, the extent to which voters will be able to go to the polls to cast ballots in person rather than needing to do so by mail. These uniquely acute challenges to holding an election that the public will accept as valid follow other stresses to electoral legitimacy unseen before 2016. The Russian attack on the 2016 election caused Americans to question, in an unprecedented way, the nation’s capacity to hold free and fair elections.

Given these challenges, this essay tackles the basic concept of what it means for the outcome of an election to be valid. Although this concept had been considered settled before 2016, developments since then have caused it to become contested. Current circumstances require renewing a shared conception of electoral validity. Otherwise, participants in electoral competition—winners and losers alike—cannot know whether or not the result qualifies as authentically democratic. Accordingly, after reviewing the history that has led to the present difficulties, this essay offers a renewed conception of electoral validity. This essay then explains the theoretical basis for this renewed conception and applies it to some of the most salient threats to electoral validity that are foreseeable in the upcoming 2020 election, as well as in future elections.

In brief, the proposed standard of electoral validity distinguishes sharply between (1) direct attacks on the electoral process that negate voter choice and (2) indirect attacks that improperly manipulate voter choice. Direct attacks undermine electoral validity, whereas indirect attacks do not. It is essential, however, that the category of direct attacks encompasses both the disenfranchisement of eligible voters—which prevents them from casting a ballot—as well as the falsification of votes reported in the tallies of counted ballots.

Revisiting Hate Crimes Enhancements in the Shadow of Mass Incarceration

Shirin Sinnar, Beth A. Colgan

Although civil rights advocates have largely supported hate crimes laws over the last four decades, growing concern over mass incarceration is now leading some to question the focus on enhancing prison sentences. This Essay explores two alternatives to the traditional sentence enhancement model that might retain the expressive message of hate crimes laws—to convey society’s particular condemnation of crimes of bias—while relying less heavily on police and prisons: the reformation of victim compensation programs to help victims and targeted communities and the application of restorative justice processes to hate crimes. Each of these alternatives presents complications, but both offer sufficient potential to justify further exploration.

Unraveling Williams v. Illinois

Edward K. Cheng, Cara C. Mannion

This Essay addresses one of the key evidentiary problems facing courts today: the treatment of forensic reports under the Confrontation Clause. Forensics are a staple of modern criminal trials, yet what restrictions the Confrontation Clause places on forensic reports is entirely unclear. The Supreme Court’s latest decision on the issue, Williams v. Illinois, sowed widespread confusion among lower courts and commentators, and during the 2018 Term, Justices Gorsuch and Kagan dissented to the denial of certiorari in Stuart v. Alabama, a case that would have revisited (and hopefully clarified) Williams.

Our Essay dispels the confusion in Williams v. Illinois. We argue that Williams involved three difficult and intertwined evidentiary questions: i) when experts may use inadmissible evidence as the basis of their opinions under Rule 703; ii) whether Rule 703 itself is consistent with the Confrontation Clause; and iii) whether reports that arise out of rigorous scientific processes implicate the Confrontation Clause at all. Along the way, we show that the answers to these questions help predict the future of the Confrontation Clause and offer a potential tool for improving forensic science.

Online Symposium

Closing the Racial Wealth Gap

Mehrsa Baradaran

This Article explores a few remedies to closing the racial wealth gap rooted in a theory of contract damages. The U.S. government has failed to live up to its promises to Black Americans to treat them equally under the law and thus a remedy is justified. Though a full reparations program is necessary and theoretically justified, this Article does not focus on a full-scale reparations program. Rather, the Article explores how a housing grant might work as one solution to closing the racial wealth gap given the current constitutional interpretation and political barriers.

 

Exporting Islamophobia in the Global “War On Terror”

Khaled A. Beydoun

The War on Terror is far more than a domestic project aimed to deter terrorism and shore up national security. The War’s policy, strategy, and accompanying epistemology, since its very inception, created opportunities for other nation states to initiate—or expand existing—domestic programs that conflated Muslim identity with terror suspicion. In turn, adopting the fundamental presumption of the War on Terror that drove American Islamophobia, feeds state-sponsored Islamophobia in states where the War on Terror was formally adopted.

This Article theorizes how Islamophobia is exported by way of the American-spearheaded War on Terror, and how it fed and still facilitates the structural Islamophobic policies in China and India—where the host governments are unleashing two of the most ominous systems of Islamophobia in the world. While led by the United States, the War on Terror gradually became a global crusade, whereby states across the world found an opportune moment to persecute and punish their own Muslim populations to achieve their ends.

 

Public School Admissions and the Myth of Meritocracy: How and Why Screened Public School Admissions Promote Segregation

Richard R. Buery, Jr.

Public schools in America remain deeply segregated by race, with devastating effects for Black and Latinx students. While residential segregation is a critical driver of school segregation, the prevalence of screened admissions practices can also play a devastating role in driving racial segregation in public schools. New York City, one of the most segregated school systems in America, is unique in its extensive reliance on screened admissions practices, including the use of standardized tests, to assign students to sought-after public schools. These screens persist despite their segregative impact in part because they appeal to America’s embrace of the idea of meritocracy. This Article argues that Americans embrace three conceptions of merit which shield these screens from proper scrutiny. The first is individual merit—the idea that students with greater ability or achievement deserve access to better schools. The second is systems merit—the idea that poor student performance on an assessment is a failure of the system that prepared the student for the assessment. The third is group merit—the idea that members of some groups simply possess less ability. Each of these ideas has a pernicious impact on perpetuating racial inequality in public education.

 

1 … 4 5 6 7 8 … 13