Law in Elections

As the 2024 election day officially arrives, we wanted to focus on how elections and law interrelate in the field of election law. Election law is a branch of public law that governs the democratic process, dealing with everything from the election of representatives and office holders to referendums, and most importantly, safeguarding your voting rights. Election law is a vast area dating back to the earliest points of our democratic history and continuing today. Within these broad areas, there are numerous sub-topics that attorneys in the field handle. 

Practicing election law can take several forms. Attorneys in this area often focus on time-sensitive cases that require quick responses, especially during election cycles. Law firms, both big and small, can specialize in election law. These firms provide crucial legal guidance to campaigns, ensuring compliance with election laws, assisting with campaign finance issues, and much more. Large law firms such as Covington & Burling and Jones Day may represent political parties or Presidential candidates on matters like campaign funding, while smaller firms such as Parikh Law Group (founded by UIUC alum Anish Parikh) may specialize in ensuring fair access to ballots and advocating for the right of qualified individuals to run for state and local office. During a period known as the “Objection Period,” individuals can formally challenge a candidate’s eligibility and nomination process. These challenges are similar to mini cases, progressing through the court system and sometimes creating legal precedents that shape future election law.

Additionally, many other firms and public interest organizations, such as the American Civil Liberties Union (ACLU) and the Lawyer’s Committee for Civil Rights Under the Law dedicate time protecting voting rights, including pro bono work. This pro bono work often includes representing marginalized communities to ensure their voices are heard at the ballot box, emphasizing the field’s commitment to equity. 

An Election law practice also intersects with various other legal fields that influence elections and governance. Finance law is crucial for campaign fundraising and spending regulations while lobbying law affects how interest groups and advocates seek to influence elections and policy outcomes. Public policy and administrative law also play critical roles in shaping how elections are run at the federal, state, and local levels. Zoning laws, though seemingly unrelated, can even affect where polling places are located and how accessible they are to different communities. It’s essential to recognize that these fields don’t operate in isolation but instead influence one another in complex ways. 

Did you know?  The Lawyers’ Committee for Civil Rights Under Law recently celebrated its 60th Anniversary!  The Lawyer's Committee is a nonpartisan, nonprofit organization formed by 244 lawyers from across the country in 1963 at the request of President John F. Kennedy.  The goal of the organization was to encourage lawyers to utilize their expertise to ensure and advance the protection of civil rights through the courts.  The Lawyer's Committee continues its work today to "secure for all the rights that are the ideals on which our country was founded."

Election Law Terminology

  • Gerrymandering ~ The practice of dividing or arranging a territorial unit into election districts in a way that gives one political party an unfair advantage in elections.

E.g. The House has passed a bill that protects voting rights and restricts gerrymandering.  

  • Ballot ~ The action or system of secret voting.  

E.g. Voters may use online and/or paper ballots in a general election to cast their vote.  

  • Primaries ~ Elections that political parties host before selecting candidates for a general election. 

E.g. There are many different primaries that a political party can host which involve open, closed, and semi-closed primaries.  

  • Electoral College ~ The system by which the president and vice president of the United States are chosen.  

E.g. For a candidate to win the presidency, a candidate must win 270 or more electoral votes out of 538.  

  • Grandfather Clause ~ This term originated during the 19th century in southern states. It exempted those whose ancestors had the right to vote before the Civil War from specific voting requirements like poll taxes, literacy tests, etc. Enforcing these laws were an intentional means of shirking the Fifteenth Amendment and placed harsher voting requirements on black voters. 

E.g. The U.S. Supreme Court declared the grandfather clause unconstitutional because it violated equal voting rights in 1915.  

  • Injunction ~ A court order requiring a person to do or cease doing a specific action. 

E.g. We are seeking an injunction against them. 

  • Voting Rights Act ~ President Lyndon Johnson signed Voting Rights Act of 1965 to terminate discriminatory voting practices that many southern states adopted after the Civil War. It helped prohibit states from using certain qualifications or practices to deny the right to vote based on race.  

E.g.  The Voting Rights Act was passed to prevent discrimination in voting, such as literacy tests.

  • Suffrage ~ The right to vote in political elections. 

E.g. Women’s suffrage is the right of women by law to vote in national or local elections.  

  • Fourteenth Amendment ~ The Fourteenth Amendment grants citizenship and equal rights to all people born or naturalized in the United States, including formerly enslaved people. The Equal Protection Clause states that a government body cannot deny people equal protection of its governing laws. 

E.g. A case that has applied the Fourteenth Amendment’s Equal Protection Clause is Brown v. Board of Education since it ruled that segregation between Black and White children in school violated the Equal Protection Clause.  

  • Fifteenth Amendment ~ 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 slavery. 

E.g. After February 3, 1870, the Fifteenth Amendment was ratified to the Constitution to grant African American men the right to vote.

  • Nineteenth Amendment ~ The 19th Amendment was passed by Congress in 1919 and ratified in 1920. This amendment provided American women the right to vote in the United States.

E.g. Women of the United States were finally granted the right to vote with the successful passage of the Nineteenth Amendment.

Voting/Election Cases

Throughout our democratic history, Courts have often played an important role in our understanding of the electoral process and voting rights. Below are five examples of historic Supreme Court cases that informed our understanding.

Bush v. Gore (2000)

Facts: On November 7, 2000, the presidential election between George W. Bush and Al Gore concluded with Bush as the certified winner, but by such a narrow margin that Florida law triggered an automatic machine recount. This recount further tightened the race between Bush and his opponent, Al Gore, leading to calls for a manual recount which is a much slower, more labor-intensive process that brought unique challenges. It was especially complicated given the legal deadlines for finalizing the results. One of the central issues was the lack of uniform standards for interpreting voter intent across Florida’s counties. Each county applied different methods for evaluating ballots, resulting in inconsistencies that raised constitutional concerns. Without clear guidelines, individual ballots could be counted differently based on location, leading the Supreme Court to question the fairness of the process. As deadlines came closer, the case advanced through the Florida courts before reaching the United States Supreme Court.  

Holding: This arbitrary treatment of ballots, the Court concluded, violated the Equal Protection Clause of the Fourteenth Amendment, as each vote was not being treated equally. The absence of clear guidelines meant that there were not enough constitutional safeguards in place to ensure a fair recount process, especially given the high stakes of determining the next president. Ultimately, the decision stopped the recounts, solidifying Bush’s victory and bringing a close to the 2000 presidential election.  Learn more about the Bush v. Gore case here.

Guinn v. United States (1915)

Facts: As a result of the conclusion of the Civil War and the enactment of the Fifteenth Amendment, several Southern states began passing laws to restrict the right to vote in the late 1800s. Several restrictions on voting were enacted, such as poll taxes or literacy tests to determine which citizens were eligible to vote. Several states also created “grandfather clauses” which exempted individuals from such restrictions if their ancestors could vote prior the conclusion of the Civil War. Grandfather clauses were an attempt by Southern states to create facially neutral laws that discriminated on the basis of race, as most black men, prior to the Fifteenth Amendment, would not have had the right to vote. Oklahoma legislators amended their Constitution to require voters to satisfy a literacy test, but provided an exemption for those that could prove their grandfather had voted before 1866. This was an attempt by the legislators to disenfranchise black voters without passing a law that outright referenced race. This Constitutional amendment was challenged as a violation of the Fifteenth Amendment.  

Holding: The Supreme Court held that Oklahoma’s constitution violated the Fifteenth Amendment of the United States Constitution.  The Court found the grandfather clause was created to exclude as many black people as possible from the vote, and unequally treated black and white people who were unable to pass the literacy test. While the court struck down grandfather clauses, they did not touch on the validity of literacy tests. However, Guinn v. United State remained an important victory for voting rights for black Americans.  Learn more about the Guinn v. United States here.

Harper v. Virginia Board of Elections (1966)

Facts: In 1964, Congress passed the Twenty-Fourth Amendment, abolishing poll taxes for federal elections. However, several states, including Virginia, still required poll taxes for state-run elections. Virginia required voters to pay a $1.50 poll tax, which Annie Harper, who was unable to afford the fee, challenged after being prevented from registering to vote. Harper filed suit, arguing that this poll tax deprived poor individuals, including a disparate impact on people of color, of their right to vote, violating the Fourteenth Amendment’s Equal Protection Clause. Initially, a district court dismissed Harper’s claim, referencing the Supreme Court’s 1937 ruling in Breedlove v. Suttles, which held that states could impose poll taxes. However, Harper appealed to the Supreme Court, which agreed to hear her case. 

Holding: The Court held that Virginia’s poll tax did indeed violate the Equal Protection Clause, overturning Breedlove v. Suttles. The Court reasoned that eligibility to vote had no rational connection to an individual’s wealth, and under the Fourteenth Amendment, this poll tax failed the standard of review for restrictions on voting. Notably, this decision marked a significant shift on the Supreme Court’s positioning, demonstrated by the the changing makeup of the Court and evolving societal attitudes. These changes influenced the reversal of the earlier precedent, broadening the principle of protecting voters in state elections as well.  Learn more about Harper v. Virginia Board of Elections here.

Katzenbach v. Morgan (1966)

Facts:  The Voting Rights Act of 1965 was enacted as a response to a long history of voting discrimination practices that were adopted in many states after the Civil War. After the passing of the Voting Rights Act, many states still had restrictions for voters based on their ability to read and write English. Section 4(e) of the Voting Rights Act mandated that no person should be denied the right to vote despite the inability to read or write English if they had a sixth-grade education in a school accredited by Puerto Rico. New York voters argued that Section 4(e) wrongfully prevented the enforcement of New York election laws that required voters be able to read and write English. This issue was especially prevalent in New York due to growing Puerto Rican immigration to New York City in the mid-1900s.

Holding: The Supreme Court held that the New York English literacy requirement was in violation of Section 4(e) of the Voting Rights Act. Justice William J. Brennan’s opinion established that Congress was property exercising the power it was granted under Section 5 of the Fourteenth Amendment. Thus, it was ruled that Section 4(e) of the Voting Rights Act was in fact constitutional, and not a usurpation of powers entitled to the state. In the end Katzenbach v. Morgan was a significant Supreme Court case that helped establish equal protection to prevent any discriminatory voting practices for non-English speaking citizens.  Learn more about Katzenbach v. Morgan here.

Minor v. Happersett (1874)

Facts: Virgnia Minor was part of a growing suffrage movement for women in the United States during the late 1800s. In 1872 Minor attempted to register to vote in the state of Missouri but was denied by the St. Louis County registrar on the basis of being a woman citing the Missouri Constitution which provided voting rights to men only. As a result, Minor brought action against the county registrar, Reese Happersett, claiming that as a United States citizen such rejection, as supported by the Missouri Constitution, violated the 14th Amendment of the U.S. Constitution. Minor argued that as a citizen of the United States, she was entitled to voting rights as part of her citizenship.

Holding: The Supreme Court agreed that Minor was a United States citizen but held that the right to vote was not part of the privileges or immunities extended to all U.S. citizens by adoption of the Fourteenth Amendment. The Court cited precedent for restrictions on the right of citizens to vote and specifically held that the 14th Amendment did not necessarily extend voting rights to individuals that did not previously hold them, stating that the 14th Amendment “simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it.” Minor v. Happersett was a set-back to the women’s suffrage movement. Women in the United States would earn the constitutional right to vote nearly 50 years later with the adoption of the 19th Amendment in 1920. Learn more about Minor v. Happersett here.

Learn More!

Learn more about Election law and voting rights through the following resources!

A special thank you to our guest writers for their contributions to this post!

  • Erika Efigenio, Advisory Council Class of 2027 Representative
  • Imaan Zaheer, Advisory Council Class of 2027 Representative