Professor James Sample’s article “The Electorate as More Than Afterthought” was published in the University of Chicago Legal Forum (2015 University of Chicago Legal Forum 383).
The article appears in the journal’s 2015 volume, “Does Election Law Serve the Electorate?,” which is devoted entirely to election law and features leading election law scholars such as Cass R. Sunstein, Richard Briffault, Richard Hasen, and Ellen Katz, among others.
From the Introduction:
This article focuses on a few specific election law proposals in which voters qua voters would be the principal beneficiaries. The approach … is to emphasize election law changes in which the pro-electorate characteristics of the proposals are the key criteria, rather than any partisan distributional gains. Pro-electorate is defined, for purposes of the paper, as favorable to voter participation, favorable to the electorate’s increased participation being meaningful; and is specifically intended to be measured without regard to partisanship. In addition to policy ramifications, the article explores notable recent legal developments in connection with the proposals, including, in particular, the ramifications of pertinent court decisions arising out of litigation connected to the 2014 midterm elections.
The election law initiatives explored … include both ambitious proposals (for example, expanding early voting, no-fault absentee balloting, same-day registration, and, most ambitiously, state adoption of the national popular vote compact) and more marginal changes (for example, eliminating the highly counter-majoritarian practice of empowering a single U.S. Senator to “blue-slip” a judicial nominee, and rolling back state-specific felon disenfranchisement laws). The article intentionally excludes particularly partisan and tendentious election law topics such as redistricting methodology, controversies surrounding present-day applications of the Voting Rights Act, and broad questions of campaign finance regulation, to instead focus on the selected initiatives, precisely for their electorate-centric qualities. While any changes in election law are inherently subject to politicization, the paper attempts to take a partisan-blind approach to analyzing the potential of the proposals to further the values inherent in a republican form of government.
The article proceeds in four parts … : Part I advocates for the restoration of voting rights to individuals who, due to felony convictions, have been subjected to disenfranchisement. Part II explores several micro-proposals involving the expansion of access to the polls. Part III addresses … the National Popular Vote Compact. … Part IV addresses the United States Senate’s blue-slip tradition, recognizing that representative governance may just as significantly be undermined by practices as opposed to laws.