America Votes

Star with red, white and blue beam

Legal issues increasingly shape election outcomes. Here’s a primer on the 2024 election.

Written by Professor Joshua Sellers
Art by Brian Stauffer

When the United States Supreme Court intervened in the 2000 presidential election, many legal experts viewed the choice with dismay.

Why, they asked, would the Court threaten its legitimacy by weighing in on a dispute, the resolution of which was certain to have a significant, if not dispositive, impact on the electoral outcome? If there was ever a case for which judicial restraint was appropriate, many would say Bush v. Gore was it.

Nearly twenty-five years later, to observe that the federal judiciary routinely influences political outcomes is to risk banality. Today, many Americans have impassioned views on the Court’s opinions in cases like Citizens United v. Federal Election Commission, which facilitated the growth in corporate political expenditures, and Shelby County v. Holder, which invalidated a key provision of the Voting Rights Act of 1965. These and related cases exacerbate a commonly held view that law is merely politics by other means.

For those who dislike the idea of judges regulating politics, fair warning, 2024 may provoke distress. The mere volume of so-called “law of democracy” cases is striking, but the content of some of the litigation is particularly noteworthy.

Uncharted Legal Territory

Ballot illustration
Exhibit A Law of democracy cases are on the rise. Will the quill be mightier than the vote?

Never before had the Supreme Court considered the question of whether a presidential candidate is constitutionally prohibited — under Section 3 of the Constitution’s Fourteenth Amendment — from assuming the presidency for having “engaged in insurrection.” Remarkably, following the Colorado Supreme Court’s determination that former President Donald Trump was ineligible for placement on the state’s primary election ballot due to his activities leading up to and on January 6, 2021, the Court was asked to resolve the issue. The Court’s opinion, issued on March 4, concluded that only Congress is constitutionally empowered to enforce Section 3. In short, Trump is entitled to placement on the ballot.

Relatedly, in the context of his federal indictment by special counsel Jack Smith for interfering in the 2020 election, Trump claims that presidents enjoy absolute immunity from federal prosecution for crimes committed in office, unless first impeached by the House of Representatives and convicted by the Senate. That issue, another legal novelty, will soon be resolved by the Supreme Court as well. Trump faces an additional federal indictment by Jack Smith, an indictment in Georgia, and an indictment in New York, each of which involves legally complex issues. These cases alone present enough legal and political uncertainty to keep election law aficionados and political junkies fully occupied. As novel as these cases are, though, they are just a small fraction of the election law litigation underway.

Voting Rights

One highly consequential set of cases involves redistricting. As background: following the decennial census, all states are required to redraw their congressional and state legislative electoral districts to ensure they are “equipopulous” (i.e., that each district contains the same number of people). This constitutional requirement is meant to prevent what is known as “vote dilution,” the weakening of a group’s voting power by manipulating district lines in a way that dilutes its influence.

Consider, hypothetically, one voter who is assigned to a district with 5,000 people, and another voter assigned to a district with 10,000 people; the latter’s voting power is diluted as compared with the former. The law has long prohibited this type of dilution. However, even with equipopulous districting it is nevertheless possible to dilute the voting power of racial or ethnic minorities (racial gerrymandering) or of political opponents (political gerrymandering). Because abundant information is available about where people live, and how people vote, it is not difficult to strategically design electoral districts that either overrepresent (a.k.a. packing) or underrepresent (a.k.a. cracking) certain populations. In fact, these days, computer programs do most of the work. In either scenario, the political influence of the targeted population is weakened.

The law pertaining to racial and political gerrymandering is dense and context-specific, making each redistricting litigation dispute unique. Litigation is currently ongoing in several states, including Wisconsin, New York, Louisiana, Utah, and Texas. Because the partisan composition of the House of Representatives is so evenly split, the outcomes in these cases could very well determine which political party has control in the next Congress.

The Electoral College system is 100X more likely than a national popular vote system to produce a race decided by a few thousand votes. / There’s an 18% likelihood that a presidential election will be decided by 150,000 votes / The Electoral College generates a 1-in-20 chance the winner will be decided by 15,000 in a single state / In 10% of presidential elections, the winner will be decided by less than .02% of the national vote from a single state. / An American voter has a 50% chance of experiencing a presidential election decided by just .01% of the total turnout (roughly 15,000 votes)

Exhibit B: Unpopular Vote?

Are the close elections of the 21st century a fluke? New research from UT Austin professors Michael Geruso and Dean Spears suggests that recent elections — and the legal, practical, and political concerns they raise — are here to stay. The researchers found not only that U.S. elections are statistically likely produce razor-thin margins of victory. The authors contend “the electoral college itself causes this closeness. It would not occur under any plausibly comparable popular vote system.”

By Texas Law magazine staff

A New Third-Party Ticket?

 Another curious feature of this election cycle are the maneuverings of various third parties in the presidential election. For instance, for months it appeared that the political group No Labels might influence the race, though that no longer appears to be the case. The group initially promised to run a moderate unity candidate for president if the major parties renominated Joe Biden and Donald Trump. Although the group was set to reveal its standard bearer following March 5, Super Tuesday, at which point many of the major parties’ convention delegates were assigned, it recently disclosed that it was unable to find anyone willing to run under its banner. It is now unclear whether No Labels has a future.

Robert F. Kennedy Jr., however, remains on the campaign trail. Though technically running as an independent, and therefore not directly connected with any single political party, Mr. Kennedy is opportunistically aligning with a multitude of third parties for the purpose of obtaining ballot access in various states. It is hard to predict what impact he might have on the election, though media reports suggest that his policy positions resonate with certain segments of the electorate. What seems obvious is that this year’s election will be closely contested, which would make the casting of even a small percentage of votes for a non-major party candidate – whether Mr. Kennedy or another third party contender – potentially quite consequential. 

Improving Election Systems

 Not to be forgotten in the coverage of these high-profile issues are the multitude of prosaic yet immensely important matters that accompany every election. Are prospective voters afforded easy registration? Have enough ballots been procured? Are polling places sufficiently staffed? Have voting machines been properly tested for both reliability and security? Are the rights of disadvantaged voting populations protected? Are post-
election procedures — procedures for recounts or routine election audits, for instance — clearly established well in advance of the election? All these issues, and countless others, have at least the potential to become the subject of election litigation. Far too often, they do.

Accepting that fact, though, should not detract from efforts to improve our elections systems in ways that would reduce the amount of election litigation. As my own scholarship has argued, the right to vote, our most precious fundamental right, is unique among rights. Most rights are conceptualized as negative rights, they are premised on government noninterference. When Americans invoke their rights to free speech or the right to be free from unlawful searches and seizures, for example, they establish a bar that the government must clear before those rights may be infringed.

Voting is a positive right. It requires affirmative government action to support the collective exercise of that right.
Exhibit C Voting is a positive right. It requires affirmative government action to support the collective exercise of that right.

The right to vote, by contrast, is best conceptualized as a positive right; we simply cannot exercise it without the government creating the conditions, the apparatus, through which the right can be effectuated. This distinction obligates the government to invest in and preserve well-functioning, inclusive elections systems. The creation of such systems, would substantially reduce the frequency of election litigation. That would be a positive development, though the realization of markedly improved elections systems will require sustained investment.

Our Collective Responsibility

In this fraught moment, long-term thinking feels like an indulgence. The months ahead look to be tumultuous. Political polarization defines the era and impedes progress on everything from reducing the cost of groceries to the nation’s response to foreign wars. The presidential contest will generate abundant commentary, much of it sordid. And, for better or worse, the judiciary will undoubtedly play a leading role in how the election unfolds, as it did at the start of the century. But, ultimately, the responsibility for democratic preservation and improvement is ours; it exists independent of any judicial pronouncements. How we collectively wield that responsibility is of the gravest importance, and will lay bare the essence of our democracy. 

Category: Features