SUNDAYS AT JASA Winter 2024
SEMESTER (6 classes)
Election Law, Voting Rights, and Democracy
Mondays at 10:00 a.m. – 11:00 a.m.
Virtual Class on Zoom
Instructor: Leora Harpaz
Email
- lharpaz@lharpaz.com
Class 6 - Feb.
19, 2024
Article II,
Section 1 - Electors Clause:
Each State shall appoint, in such Manner
as the Legislature thereof may direct, a
Number of Electors, equal to the whole
Number of Senators and Representatives
to which the State may be entitled in
the Congress: but no Senator or
Representative, or Person holding an
Office of Trust or Profit under the
United States, shall be appointed an
Elector.
The Elections
Clause - Art. I, Sec. IV, Clause 1:
The Times, Places and Manner of holding
Elections for Senators and
Representatives, shall be prescribed in
each State by the Legislature thereof;
but Congress may at any time make or
alter such Regulations, except as to the
Place of chusing Senators.
Class 5 - Feb. 12, 2024
Chief Justice Roberts in Rucho v. Common Cause (2019):
What the appellees and dissent seek is an
unprecedented expansion of judicial power. We have
never struck down a partisan gerrymander as
unconstitutional—despite various requests over the
past 45 years. The expansion of judicial authority
would not be into just any area of controversy, but
into one of the most intensely partisan aspects of
American political life. That intervention would be
unlimited in scope and duration—it would recur over
and over again around the country with each new round
of districting, for state as well as federal
representatives. Consideration of the impact of
today’s ruling on democratic principles cannot ignore
the effect of the unelected and politically
unaccountable branch of the Federal Government
assuming such an extraordinary and unprecedented role.
Justice Kagan dissenting in Rucho v. Common Cause
(2019):
For the first time ever, this Court refuses to remedy
a constitutional violation because it thinks the task
beyond judicial capabilities. And not just any
constitutional violation. The partisan gerrymanders in
these cases deprived citizens of the most fundamental
of their constitutional rights: the rights to
participate equally in the political process, to join
with others to advance political beliefs, and to
choose their political representatives. In so doing,
the partisan gerrymanders here debased and dishonored
our democracy, turning upside-down the core American
idea that all governmental power derives from the
people. These gerrymanders enabled politicians to
entrench themselves in office as against voters'
preferences. They promoted partisanship above respect
for the popular will. They encouraged a politics of
polarization and dysfunction. If left unchecked,
gerrymanders like the ones here may irreparably damage
our system of government.
The Elections Clause - Art. I, Sec. IV, Clause 1:
The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in
each State by the Legislature thereof; but Congress
may at any time make or alter such Regulations, except
as to the Place of chusing Senators.
Moore v. Harper Majority Opinion by Chief Justice
Roberts:
State courts retain the authority to apply state
constitutional restraints when legislatures act under
the power conferred upon them by the Elections Clause.
But federal courts must not abandon their own duty to
exercise judicial review. In interpreting state law in
this area, state courts may not so exceed the bounds
of ordinary judicial review as to unconstitutionally
intrude upon the role specifically reserved to state
legislatures by Art I, § 4, of the Federal
Constitution. Because we need not decide whether that
occurred in today’s case, the judgment of the North
Carolina Supreme Court is affirmed.
14th Amendment, Section 3:
No person shall be a Senator or Representative in
Congress, or elector of President and Vice-President,
or hold any office, civil or military, under the
United States, or under any State, who, having
previously taken an oath, as a member of Congress, or
as an officer of the United States, or as a member of
any State legislature, or as an executive or judicial
officer of any State, to support the Constitution of
the United States, shall have engaged in insurrection
or rebellion against the same, or given aid or comfort
to the enemies thereof. But Congress may by a vote of
two-thirds of each House, remove such disability.
Article II, Section 1:
The executive Power shall be vested in a President of
the United States of America. He shall hold his Office
during the Term of four Years, and, together with the
Vice President, chosen for the same Term, be elected,
as follows
Article II, Section 2, Clause 2 - The Appointments
Clause:
He shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two
thirds of the Senators present concur; and he shall
nominate, and by and with the Advice and Consent of
the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the Supreme Court,
and all other Officers of the United States, whose
Appointments are not herein otherwise provided for,
and which shall be established by Law: but the
Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads
of Departments.
Article II, Section 1 - Electors Clause:
Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors,
equal to the whole Number of Senators and
Representatives to which the State may be entitled in
the Congress: but no Senator or Representative, or
Person holding an Office of Trust or Profit under the
United States, shall be appointed an Elector.
18 U.S. Code § 2383 - Rebellion or insurrection:
Whoever incites, sets on foot, assists, or engages in
any rebellion or insurrection against the authority of
the United States or the laws thereof, or gives aid or
comfort thereto, shall be fined under this title or
imprisoned not more than ten years, or both; and shall
be incapable of holding any office under the United
States.
Class 4 - Feb. 5, 2024
The
Original Gerrymander
Chief Justice Roberts in Rucho v. Common
Cause (2019):
What the appellees and dissent seek is
an unprecedented expansion of judicial
power. We have never struck down a
partisan gerrymander as
unconstitutional—despite various
requests over the past 45 years. The
expansion of judicial authority would
not be into just any area of
controversy, but into one of the most
intensely partisan aspects of American
political life. That intervention would
be unlimited in scope and duration—it
would recur over and over again around
the country with each new round of
districting, for state as well as
federal representatives. Consideration
of the impact of today’s ruling on
democratic principles cannot ignore the
effect of the unelected and politically
unaccountable branch of the Federal
Government assuming such an
extraordinary and unprecedented role.
Justice Kagan dissenting in Rucho v.
Common Cause (2019):
For the first time ever, this Court
refuses to remedy a constitutional
violation because it thinks the task
beyond judicial capabilities. And not
just any constitutional violation. The
partisan gerrymanders in these cases
deprived citizens of the most
fundamental of their constitutional
rights: the rights to participate
equally in the political process, to
join with others to advance political
beliefs, and to choose their political
representatives. In so doing, the
partisan gerrymanders here debased and
dishonored our democracy, turning
upside-down the core American idea that
all governmental power derives from the
people. These gerrymanders enabled
politicians to entrench themselves in
office as against voters' preferences.
They promoted partisanship above respect
for the popular will. They encouraged a
politics of polarization and
dysfunction. If left unchecked,
gerrymanders like the ones here may
irreparably damage our system of
government.
Class 3 - Jan. 29, 2024
Article I, Sec. 4:
“The Times, Places and Manner of holding Elections for
. . . Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may
at any time by Law make or alter such Regulations.”
Wesberry v. Sanders (1964):
“We hold that, construed in its historical context,
the command of Art. I, § 2, that Representatives be
chosen ‘by the People of the several States’ means
that as nearly as is practicable one man's vote in a
congressional election is to be worth as much as
another’s. . . . It would be extraordinary to suggest
that in such statewide elections the votes of
inhabitants of some parts of a State . . . could be
weighted at two or three times the value of the votes
of people living in more populous parts of the State.
. . . We do not believe that the Framers of the
Constitution intended to permit . . . vote-diluting
discrimination to be accomplished through the device
of districts containing widely varied numbers of
inhabitants. To say that a vote is worth more in one
district than in another would not only run counter to
our fundamental ideas of democratic government, it
would cast aside the principle of a House of
Representatives elected ‘by the People,’ a principle
tenaciously fought for and established at the
Constitutional Convention.”
Reynolds v. Sims (1964):
1. “We conclude that the Equal Protection Clause
guarantees the opportunity for equal participation by
all voters in the election of state legislators.
Diluting the weight of votes because of place of
residence impairs basic constitutional rights under
the Fourteenth Amendment just as much as invidious
discriminations based upon factors such as race, or
economic status.”
2. “The Equal Protection Clause requires that a State
make an honest and good faith effort to construct
districts, in both houses of its legislature, as
nearly of equal population as is practicable. We
realize that it is a practical impossibility to
arrange legislative districts so that each one has an
identical number of residents, or citizens, or voters.
Mathematical exactness or precision is hardly a
workable constitutional requirement. . . .
Lower courts can and assuredly will work out more
concrete and specific standards for evaluating state
legislative apportionment schemes in the context of
actual litigation. . . . Developing a body of doctrine
on a case-by-case basis appears to us to provide the
most satisfactory means of arriving at detailed
constitutional requirements in the area of state
legislative apportionment. Thus, we proceed to state
here only a few rather general considerations which
appear to us to be relevant.
A State may legitimately desire to maintain the
integrity of various political subdivisions, insofar
as possible, and provide for compact districts of
contiguous territory in designing a legislative
apportionment scheme. Valid considerations may
underlie such aims. Indiscriminate districting,
without any regard for political subdivision or
natural or historical boundary lines, may be little
more than an open invitation to partisan
gerrymandering. Whatever the means of accomplishment,
the overriding objective must be substantial equality
of population among the various districts, so that the
vote of any citizen is approximately equal in weight
to that of any other citizen in the State.”
The
Original Gerrymander
Class 2 - Jan. 22, 2024
South Carolina v. Katzenbach:
Congress exercised its authority under the Fifteenth
Amendment in an inventive manner when it enacted the
Voting Rights Act of 1965. First: the measure
prescribes remedies for voting discrimination which go
into effect without any need for prior adjudication.
This was clearly a legitimate response to the problem,
for which there is ample precedent under other
constitutional provisions. Congress had found that
case-by-case litigation was inadequate to combat
widespread and persistent discrimination in voting,
because of the inordinate amount of time and energy
required to overcome the obstructionist tactics
invariably encountered in these lawsuits. After
enduring nearly a century of systematic resistance to
the Fifteenth Amendment, Congress might well decide to
shift the advantage of time and inertia from the
perpetrators of the evil to its victims. . . .
Second: the Act intentionally confines these remedies
to a small number of States and political subdivisions
. . . .This, too, was a permissible method of dealing
with the problem. Congress had learned that
substantial voting discrimination presently occurs in
certain sections of the country, and it knew no way of
accurately forecasting whether the evil might spread
elsewhere in the future. In acceptable legislative
fashion, Congress chose to limit its attention to the
geographic areas where immediate action seemed
necessary. The doctrine of the equality of States,
invoked by South Carolina, does not bar this approach,
for that doctrine applies only to the terms upon which
States are admitted to the Union, and not to the
remedies for local evils which have subsequently
appeared.
Voting Rights Act:
Section 2
a) No voting qualification or prerequisite to
voting or standard, practice, or procedure shall
be imposed or applied by any State or political
subdivision in a manner which results
in a denial or abridgement of the right
of any citizen of the United States to vote on
account of race or color, or in contravention of
the guarantees set forth in section 10303(f)(2) of
this title, as provided in subsection (b).
(b) A violation of subsection (a) is established
if, based on the totality of
circumstances, it is shown that the political
processes leading to nomination or election in
the State or political subdivision are not
equally open to participation by members of a
class of citizens protected by subsection (a) in
that its members have less opportunity than
other members of the electorate to participate
in the political process and to elect
representatives of their choice. The
extent to which members of a protected class have
been elected to office in the State or political
subdivision is one circumstance which may be
considered: Provided, That nothing in this section
establishes a right to have members of a protected
class elected in numbers equal to their proportion
in the population.
Class 1 - Jan. 15, 2024
14th Amendment, Section 3:
No person shall be a Senator or Representative in
Congress, or elector of President and Vice-President,
or hold any office, civil or military, under the
United States, or under any State, who, having
previously taken an oath, as a member of Congress, or
as an officer of the United States, or as a member of
any State legislature, or as an executive or judicial
officer of any State, to support the Constitution of
the United States, shall have engaged in insurrection
or rebellion against the same, or given aid or comfort
to the enemies thereof. But Congress may by a vote of
two-thirds of each House, remove such disability.
Article I,
Section 2:
No Person shall be a
Representative who shall not have
attained to the Age of twenty-five
Years, and been seven Years a Citizen of
the United States, and who shall not,
when elected, be an Inhabitant of that
State in which he shall be chosen.
Article I, Section 3:
No Person shall be a Senator who
shall not have attained to the Age of
thirty Years, and been nine Years a
Citizen of the United States, and who
shall not, when elected, be an
Inhabitant of that State for which he
shall be chosen.
Article II, Section 1:
No person except a natural born
citizen, or a citizen of the United
States, at the time of the adoption of
this Constitution, shall be eligible to
the office of President; neither shall
any person be eligible to that office
who shall not have attained to the age
of thirty-five years, and been fourteen
years a resident within the United
States.
22nd Amendment (ratified: Feb., 27,
1951):
No person shall be elected to the
office of the President more than twice,
and no person who has held the office of
President, or acted as President, for
more than two years of a term to which
some other person was elected President
shall be elected to the office of the
President more than once.
Article
VI, Clause 3
The Senators and Representatives before
mentioned, and the Members of the several State
Legislatures, and all executive and judicial Officers,
both of the United States and of the several States,
shall be bound by Oath or Affirmation, to support this
Constitution; but no religious Test shall ever be
required as a Qualification to any Office or public
Trust under the United States.
Article II, Section 1, Clause 8
Before he enter on the Execution of his Office,
he shall take the following Oath or Affirmation:– I do
solemnly swear (or affirm) that I will faithfully
execute the Office of President of the United States,
and will to the best of my Ability, preserve, protect
and defend the Constitution of the United States.
15th Amendment
Section 1
The right of citizens of the United States to vote
shall not be denied or abridged by the United States
or by any State on account of race, color, or previous
condition of servitude.
Section 2
The Congress shall have the power to enforce this
article by appropriate legislation.
Article II, Section 4:
The President, Vice President and all civil
Officers of the United States, shall be removed from
Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors.
Article I, Section 3, Clause 7:
Judgment in Cases of Impeachment shall not extend
further than to removal from Office, and
disqualification to hold and enjoy any Office of
honor, Trust or Profit under the United States: but
the Party convicted shall nevertheless be liable and
subject to Indictment, Trial, Judgment and Punishment,
according to Law.