According to the U.S. Supreme Court, the right to vote is fundamental because it is preservative of all rights, and yet in many cases legal protections for the right to vote fall short of protections for the other rights that voting is meant to preserve. Redefining the right to vote cannot solve this problem alone. Election administration has at least as much consequence on the right to vote as any particular definition or legal theory. In Democracy's Bureaucracy, Michael Morse draws our attention to one of the most important yet understudied issues of election administration: voter list maintenance. In addition to his descriptive account of the novel way that states have cooperated to perform list maintenance, Morse’s analysis provides a window into three pathologies of America’s election administration more generally. First, the mechanics of elections directly implicate the fundamental right to vote, raising questions how stringently these procedures should be evaluated by courts. Second, political interference in the administration of elections can flip representative government on its head by insulating elected officials from political accountability and making elections less secure. Finally, several challenges related to the administration of elections are rooted in our electoral system that narrowly links geography and political representation. Relaxing this link may foster a more effective, responsible, and inclusive system of government.

Super PACs are relative newcomers to American politics. Unlike most participants in federal elections, super PACs can make independent expenditures using funds raised in unlimited amounts from individuals as well as corporations, labor unions, and other organizations. Using a new dataset, we compare the financing of super PACs to the financing of traditional PACs and we identify the economic and political sectors most prevalent among super PACs and their donors. Our findings demonstrate that with important exceptions, economic or political associations typically have a positive impact on the likelihood an individual or organizational donor will contribute to a super PAC and the amount of the contribution. However, business donors reserve their largest contributions for non-business super PACs, and party-connected and ideological donors routinely support super PACs in either sector. The results indicate that the relationships between super PACs and their contributors are more complex than previously understood.

Critics of America’s redistricting process frequently harp on two foundational issues: how the lines are drawn and who gets to draw them. In one provocative article, Professor Ned Foley proposes a solution that addresses both issues, potentially solves the problems of partisan and racial gerrymandering, and empowers a new generation of engaged, educated, and dynamic voters. The catch? Foley’s proposal of self-districting is so outside-the-box that some readers might dismiss it out of hand. To do so would be a mistake. Even if self-districting doesn’t live up to its billing as the “ultimate antidote to gerrymandering,” the very thought experiment prompts us to think hard about who we are as a people, what kind of democracy we want to live in, and how much (if at all) geography matters for politics in the current age of information and mobility. Furthermore, self-districting is a reminder that different groups of people will (and should!) take turns pulling the levers of government over time, and that election losses and concessions are the heartbeat of a healthy democracy.

In several areas of law and public policy, there have been longstanding dreams that computers can secure decisionmaking that takes only some things into account, while remaining demonstrably neutral to other factors. In 2022, the U.S. Supreme Court seems poised to mandate race-neutrality in multiple domains, notably in college admissions and redistricting. In this piece, we clarify the real and imagined uses of computers in redistricting, considering their employment for optimization approaches and, more recently, for representative sampling. The current pitch to the Court for a race-blind Voting Rights Act is discussed at length.

Campaigns' increasing reliance on data-driven canvassing has coincided with a disquieting trend in American politics: a stark gap in voter turnout between the rich and poor. Turnout among the poor has remained low in modern elections despite legal changes that have dramatically decreased the cost of voting. In this paper we present evidence that the combined availability of voter history data and modern microtargeting strategies have contributed to the rich-poor turnout gap. That is the case despite the promises of big data to lower the transactions costs of voter outreach, as well as additional reforms that have lowered the barriers to voting in other ways. Because the poor are less likely to have voted in prior elections, they are also less likely to appear in the mobilization models employed by data-savvy campaigns.

In this Article, we draw on a novel dataset of voter data laws in every state and show that turnout rates among the poor are lower in states that disclose voter history data to campaigns. We also find that after states change their laws to provide voter history to campaigns, these campaigns are far less likely to contact the poor.

The consequences of this vicious cycle are already known: the unique interests of the poor have been entirely unrepresented in the political process. Such political marginalization and alienation of an entire class from the democratic process is not only a problem for the poor; it poses a systemic threat to political moderation and democratic stability. Politically marginalized and alienated groups may resort to non-political means to effectuate social change and may also become ripe for recruitment by extremist and anti-democratic elements that are latent in every society. Recent incidents of domestic political violence demonstrate that the United States is no exception.

To address this threat of marginalizing the poor from democratic politics, we advance three sets of proposals. First, we argue that states should regulate the information environment of political campaigns. Prohibiting the collection and distribution of voter history data is not practical, but states should lean into their privacy laws to prohibit the matching of voter files with other administrative datasets, and should provide voter history data to campaigns independent of any information about individual political preferences. Second, states should create financial incentives for campaigns to expand their mobilization efforts to include a more representative target population that is more inclusive of the poor. Traditional campaign finance voucher and tax rebate programs are likely inadequate on their own. Instead, we propose a series of novel incentive programs that would provide cash grants to campaigns that report the most donors during each reporting period and to parties who generate more turnout than their historical average. Finally, we advance proposals for social media platforms to self-regulate “lookalike” targeting and segmented online political ads that amplify inequalities in mobilization and exacerbate political marginalization.

Political parties and individual campaigns in the United States are currently not mandated by law to promote political equality. The above reforms aim to align the short-term interests of parties and campaigns (winning the next election) with the long-term public interest in preserving a healthy democracy. Constructing a more inclusive political system will benefit everyone who seeks to live in a sustainable representative democracy, not just those who are currently marginalized.

The First Amendment forbids most limits on political speech, but it permits buffer zones around polling stations on Election Day. This exception to the deregulatory thrust of election speech doctrine is strikingly under-theorized. In this Essay we excavate the values that underpin the buffer zone exception—voter confusion and electoral integrity—and we argue that, properly understood, the same values would justify the use of temporal buffer zones: stricter-than-normal regulations on certain types of political speech in the immediate vicinity of an election. Voting, we suggest, is an act different in kind from the deliberation that precedes it. Accordingly, governmental efforts to ensure the sanctity of voting can satisfy exacting First Amendment scrutiny in a manner that similar efforts to quell or influence expression throughout the campaign process cannot. For all the case law (and scholarship) arguing that campaigning should be insulated from legal control, there is an under-appreciated interest in subjecting voting—as distinct from campaigning—to legal controls that help to guarantee its solemnity. Physical buffer zones are paradigmatic. Temporal buffer zones are a natural extension.

The health of American democracy has literally been challenged. The global pandemic has powerfully exposed a long-standing truth: electoral policies that are frequently referred to as “convenience voting” are really a mode of “survival voting” for millions of Americans. As our data show, racial minorities are overrepresented among voters whose health is most vulnerable, and politicians have leveraged these health disparities to subordinate the political voice of racial minorities. To date, data about racial disparities in health has played a very limited role in assessing voting rights. A new health lens on the racial impacts of voting rules would beneficially inform—and perhaps even fundamentally alter—how we address several common voting rights issues. A new focus on the disparate health effects of voting rules, grounded in the kind of solid empirical evidence we provide, could reinvigorate the Voting Rights Act by providing new avenues for assessing voting rights, for litigating and judging voter suppression claims under Section 2, and even informing a new coverage formula in a modified Section 5. This evidence arrives at a critical juncture for the VRA which has been stripped of much of its bite by the Supreme Court and is currently being debated in Congress. The clear and compelling story told by our data are a clarion call to legislators, courts, and litigators to reconceptualize and strengthen voting rights by accounting for the barriers that health disparities pose to minority access to the ballot.

Quantifying the effects of campaign finance disclosure on political participation is difficult. Existing empirical studies on the chilling effect of disclosure are mixed. Many campaigns believe that disclosure can actually attract speech while critics of disclosure emphasize the risk to contributors of potential harassment. The Supreme Court has endorsed campaign finance disclosure as essential for a functioning democracy, but has also warned that small donors and ideologically extreme donors may opt out of giving if their identities become public. In this study, we exploit the design features of a new kind of public financing--campaign finance vouchers--to observe the effects of full disclosure on two forms of voter participation. One form of participation is public in nature (voucher use) and one is private (voting). For each registered voter in our sample we measure the "participation gap"" (voting minus voucher) to assess whether local ideological outliers are less likely to use their vouchers and, among those who do use them, whether vouchers are given to ideologically proximate candidates or distributed more strategically relative to ideologically typical voters.

Vulnerability drives disaster law—defining its successes and illustrating its failures. Although understanding vulnerability is critical to disaster law and scholarship, the literature lacks both an overarching analysis of the different aspects of vulnerability and a nuanced examination of the factors that shape disaster outcomes. This paper attempts to fill those holes.

Despite its centrality to disaster law and policy, vulnerability often lurks in the shadows of a disaster, evident only once the worst is past and the bodies have been counted. The COVID-19 pandemic is a notable exception to this historical pattern: from the beginning of the pandemic, it has been clear that the virus poses different risks to different people, depending on different vulnerability variables. This most recent pandemic experience thus provides a useful vantage point for considering vulnerability in a more nuanced way and for illuminating how a data-driven approach to vulnerability could improve disaster policy more generally.

Drawing on new empirical data, as well as experience from past disasters, we introduce and develop three dimensions of vulnerability and their implications for policymakers. First, we explore the geography of vulnerability. Using statistical analysis and GIS mapping, our team of public health, statistics, and legal experts develops a sophisticated and detailed empirical tool to understand disaster vulnerability—an innovative COVID-19 vulnerability index that draws on a rich dataset and uses statistical modeling of case fatality rates to accurately identify the country's most vulnerable counties. We then demonstrate how this vulnerability index could have been used to inform two critical and contentious policy decisions that occupied decision-makers from the onset of the pandemic: mask mandates and voter accommodations during the 2020 elections. Building upon the lessons of COVID-19, we then show how similar modeling and thinking could make disaster management more proactive—better able to anticipate needs and prioritize disaster mitigation and response resources.

Incorporating insights from our exploration of the geographic dimension of vulnerability, we then explore a second aspect of disaster vulnerability: competing or conflicting vulnerabilities. These are situations in which policymakers must navigate choices that require prioritizing one vulnerable group's needs over another or one aspect of a group's vulnerability over another. To illustrate these issues, we consider two other important problems that have challenged policymakers during the pandemic: school closures and vaccine distribution.

Finally, we explore political vulnerability. This analysis encompasses a variety of ways that disasters make already vulnerable groups even more vulnerable to certain kinds of harms, including political neglect, stigmatization, disenfranchisement, displacement, and other forms of exploitation. In particular, we consider how vulnerability data may be both an unintended roadmap for exploitation and an important check on disaster inequity. In sum, this Article draws upon the costly lessons of COVID-19 for the most vulnerable to suggest a more robust academic and policy framework for assessing and responding to vulnerability in future disasters.

How do we know when an executive branch actor is captured or is at risk of capture? And, what is the risk that other branches of government could be captured? In this project, we offer a critical review of regulatory—or industry-related—capture which we use to build a concept of state capture that extends beyond agency-specific accounts and incorporates both the structures and processes of governing, while centering our examination on the public. We use state-level data on campaign finance, lobbying, industry size, ethics, and transparency to measure the degree to which of the 50 state executive, legislative, and judicial branches are at risk of capture by the dominant industries in the state. We then test our measures of risk against policies that departed so far from public opinion that scholars suspect capture may have been at play. Finally, we discuss judicial review of agency action in the face of suspected capture. Courts should use a heightened level of scrutiny where risk of capture is high. However, we also point out that elected judges—particularly those who run for re-election—are vulnerable to the same pressures that legislators endure when it comes to the risk of influence via campaign finance. In those cases, where a judge’s campaign financing is dominated by the industry affected by the agency action or statute, the judge should recuse, and policymakers concerned about judicial capture should create a narrow presumption for litigants to remove the case to federal court.