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Richard L. Hasen

Bio: Richard L. Hasen is an academic researcher from University of California, Irvine. The author has contributed to research in topics: Supreme court & Campaign finance. The author has an hindex of 16, co-authored 131 publications receiving 1009 citations. Previous affiliations of Richard L. Hasen include Chicago-Kent College of Law & University of Miami.


Papers
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01 Jan 2012
TL;DR: The Voting Wars as mentioned in this paper provides a definitive expert overview of an increasingly urgent threat to the democratic system and argues that the next very close presidential election has the potential to cause serious damage.
Abstract: In terms of the administration of elections, the 2000 presidential race was a watershed event. The dispute over the vote count in Florida, ultimately decided along with the presidency by the U.S. Supreme Court, revealed that our electoral processes are not only deeply flawed, but flawed in far too many ways. Voter rolls are often inaccurate, election workers are poorly trained, ballots are poorly designed, machines function inconsistently, procedures are not consistent from one county to the next, election administrators are often partisan (sometimes the state official who certifies the vote count is also the manager of one candidate's campaign in that state), and the laws governing elections vary from state to state. The result is that voters in different counties may have very different odds of casting a vote that is actually counted. None of the problems uncovered by the 2000 election have been solved; most have gotten worse. And the political atmosphere in which disputes over close elections must be resolved has grown significantly more polarized. In an environment in which litigation over elections has increased dramatically, judges now frequently divide along party lines in deciding election law disputes. The Voting Wars argues that the next very close presidential election has the potential to cause serious damage. Americans' faith in the integrity of their electoral processes and thus in the legitimacy of their government could be seriously compromised. Written by one of America's best-known experts on election law, The Voting Wars provides a definitive expert overview of an increasingly urgent threat to the democratic system.

84 citations

Posted Content
TL;DR: In this article, the authors examine the plausibility and implications of a norm-based explanation for voting and conclude that the norm of voting can explain plausibly why some people vote, as well as explain aggregate changes in voter turnout over time.
Abstract: This article examines the plausibility and implications of a norm-based explanation for voting. Part I reviews rational choice models for voting, contrasts the rational choice models with the social norms hypothesis and examines the empirical evidence regarding the existence of a norm of voting. As Part I demonstrates, rational choice explanations have offered only a tautological explanation of why people vote: People vote when the psychic benefits of voting exceed its costs. Unlike the rational choice explanation, a norm-based explanation of voting can explain plausibly why some people vote, as well as explain aggregate changes in voter turnout over time. Although the norms hypothesis is plausible, evidence supporting the hypothesis is sketchy and may be consistent with alternative explanations for voting. The analysis in Part I illustrates a general proposition that norm-based explanations are about as easy to conjure up as they are difficult to prove. Assuming that a norm of voting has served to overcome collective action problems for only certain groups in the United States, and assuming that the norm has eroded over time even among these groups because of a decrease in social connectedness, arguably the state should take on the role of social sanctioner of last resort through a compulsory voting law. Part II of the is Article examines the substitutability of state- and societal-based mechanisms for social control in the voting context. In particular, this Part considers whether compulsory voting laws could serve as a good substitute for a norm of voting. Part II demonstrates that state and societal-based methods of control are not always substitutable. Enactment of a compulsory voting law in the United States, even if desirable as a method of overcoming collective action problems, and even if proven effective as a means of increasing turnout in other states, is unlikely to occur because of a widely held libertarian belief against government interference in the decision to vote.

46 citations

Posted Content
TL;DR: The Citizens United majority of the U.S. Supreme Court as mentioned in this paper argued that independent expenditures, which apparently cannot corrupt, were so corruptive, apparently corruptive or distorting of a judicial election in the 2009 case Caperton v. Massey.
Abstract: The self-congratulatory tone of the majority and concurring opinions in last term’s controversial Supreme Court blockbuster, Citizens United v. Federal Election Commission, extended beyond the trumpeting of an absolutist vision of the First Amendment that allows corporations to spend unlimited sums independently to support or oppose candidates for office. The triumphalism extended to the majority’s view that it had imposed coherence on the unwieldy body of campaign finance jurisprudence by excising an “outlier” 1990 opinion, Austin v. Michigan Chamber of Commerce, which had upheld such corporate limits, and parts of a 2003 opinion, McConnell v. FEC, extending Austin to unions and to a broader set of election-related television and radio broadcasts. The majority saw itself as returning the Court to the fountainhead of this jurisprudence, the Court’s 1976 opinion in Buckley v. Valeo.Citizens United indisputably harmonized campaign finance law on the question of the constitutionality of spending limits on corporations, even if its view of Austin as an “outlier” remains contested. But the Court in doing so amplified and solidified other significant, incoherent aspects of the Court’s campaign finance jurisprudence. In this regard, consider the Court’s declaration as an empirical matter – apparently for all types of elections and all types of spenders – that “independent expenditures . . . do not give rise to corruption or the appearance of corruption.” Partly to justify this unsupported empirical claim, the Court embraced a narrow, “crabbed” view of corruption, contrary to other precedent including Buckley, that seemed to include little more than quid pro quo already illegal under federal bribery law, and that excluded “ingratiation and access” as forms of corruption. Consider also the Court’s declaration that in the campaign finance context neither the identity of the speaker nor any distortion of the political process caused by disproportionate spending can ever be the basis to limit someone’s right to spend in elections.Soon enough, this language will force the Court into a corner, where it will either have to adopt a view that no limits on money in politics are ever constitutional or, more likely, vote to sustain some limits on money in politics through doctrinal incoherence. For example, it is unclear how the Court applying the broad pronouncements of Citizens United could possibly sustain spending limits against foreign nationals, who might like to flood U.S. election campaigns with money to influence electoral or legislative outcomes. Indeed, if the Court took its own language seriously about the meaning of corruption in a future case, even normal limits on contributions to candidates would be in serious danger of being struck down as violating the First Amendment. We need not wait for future cases to see this incoherence, because the Court’s new doctrine is already incoherent. The Citizens United majority could not satisfactorily explain how independent expenditures, which apparently cannot corrupt, were so corruptive, apparently corruptive, or distorting of a judicial election in the 2009 case Caperton v. Massey that the Court mandated the recusal of a state supreme court chief justice hearing a case involving a corporate executive who had made large independent expenditures supporting the chief justice’s election. The Citizen United majority is not in deed treating all elections and speakers equally, even if it is in word.The Court’s present and future incoherence in its campaign finance jurisprudence reveals a broader point: the Court’s approach to jurisprudential questions may be tempered by a political sensibility. Just as the Court before Citizens United treated corporations and labor unions as subject to identical campaign finance regulation despite the clear inapplicability of the Austin rationale to labor unions, it is likely to treat foreigners and American citizens wishing to make campaign expenditures differently despite the uniformity of the rhetoric of free speech rights in Citizens United. This analysis suggests that the Court’s jurisprudence, while certainly shifting in a deregulatory direction, may not move to a position of complete deregulation unless the Court is willing to endure continued public backlash. At least in the campaign finance context, it may be that Court doctrine moves within a range, bounded at its extremes by public opinion.Part I of this Article situates Citizens United in the campaign finance jurisprudence that preceded it and describes in detail the key opinions in the case. Part II explains how the Court’s analysis in Citizens United is likely to lead to new incoherence in the Court’s campaign finance jurisprudence, because it is unlikely that the Court will follow the new case to its extreme, for example to allow spending by foreign nationals to influence candidate elections, to treat spending in judicial elections the same way as spending for other races, or to strike down reasonable limits on campaign contributions made directly to candidates. Part III suggests that incoherence is likely to be an enduring feature of the Court’s campaign finance jurisprudence, because consistent application of a coherent approach could well be politically unpalatable for majority of the Justices on the Court. It also considers the challenge such incoherence poses for lawyers arguing campaign finance cases in the Supreme Court and lower courts.

45 citations

Posted Content
TL;DR: In the 2004 presidential election, the United States came much closer to electoral meltdown, violence in the streets, and constitutional crisis than most people realize as discussed by the authors, and even though Kerry conceded the election on the day after Election Day, public confidence in the U.S. system of American administration is now quite low.
Abstract: In the 2004 presidential election, the United States came much closer to electoral meltdown, violence in the streets, and constitutional crisis than most people realize. Less than a 2% swing among Ohio voters toward Democratic candidate for President John Kerry and away from incumbent Republican President George W. Bush would have placed the Ohio - and national - election for president well within the margin of litigation, and it would have gotten ugly very quickly. Allegations of voter fraud and voter suppression were rampant on both sides, and even though Kerry conceded the election on the day after Election Day, public confidence in the U.S. system of American administration is now quite low. Previously unpublished data demonstrate that there is a growing partisan divide over views of the fairness of the election process.The bad news from the story of Election 2004 is that things likely won't get better in 2008. As Part I details, the extreme partisanship and close division of the American electorate, coupled with the Electoral College system, make the possibility of another razor-close presidential election in one or more battleground states fairly likely. Add to that mix election administration incompetence and a widely decentralized system of election administration with a patchwork of inconsistent rules. What's worse, since Bush v. Gore, losing candidates have become more willing to resort to election law as part of a political strategy: the number of election-law related cases in the lower courts has risen dramatically compared to the period before the case. It all adds up to a recipe for electoral meltdown.In Part II of this Article, I argue for three reforms that could significantly lower the risk of electoral meltdown. First, I advocate registration reform, in particular universal voter registration conducted by the government coupled with a voter identification program. There has been a wide partisan divide in the election administration debate between Democrats who have expressed concern about voter suppression and Republicans who have expressed concern about voter fraud. The registration reform I advocate can alleviate both of those concerns, minimize the potential for and political rhetoric regarding voter fraud, and eliminate a great majority of potential litigation surrounding presidential election administrationSecond, I advocate a transition to nonpartisan election administration. The nonpartisan solution aims to create both the actuality and appearance of neutrality in election administration, thereby bolstering the public's faith in the process. Australia and Canada serve as good models for reform in this regard, though not necessarily their nationalization of election administration. I consider how to assure that U.S. election administrators are truly nonpartisan, and contrast arguments for nonpartisan election administration with calls for nonpartisan redistricting commissions and campaign finance enforcement.Third, I discuss the role of the courts in minimizing electoral meltdown. The key here is to encourage courts to be more willing to entertain pre-election litigation and much more chary of entertaining post-election litigation. To the extent election administration problems can be recognized in advance, pre-election judicial review prevents future harm from occurring, rather than putting courts in the position of trying to undo the bad effects of a past harm. The costs of post-election review are large: the pressure put on courts to decide arcane election law questions when the outcome of an election - especially a presidential election - is huge, and the appearance of partisan decisionmaking is inevitable.

41 citations

Journal ArticleDOI
TL;DR: The authors show that there is not a primacy ballot order effect in every contest, and when the effect exists it is often very small and that the effect is evenly distributed between primacy and latency (defined as being last on the ballot).
Abstract: Previous empirical research and other related research from survey methodology holds that candidates listed first on an election ballot may gain some measure of advantage from this ballot placement. Using data from the 1998 general election in California, we test whether a candidate’s relative position on the ballot has any statistical effect on vote shares. We find little systematic evidence that candidate vote shares benefit from being listed first on the ballot. We show that there is not a primacy ballot order effect (defined as being listed first on the ballot) in every contest, that when the effect exists it is often very small, and that the effect is evenly distributed between primacy and latency (defined as being listed last on the ballot). We consider how courts should balance the concern over ballot order effect against other interests, such as the costs and potential confusion associated with rotation and randomization.

37 citations


Cited by
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01 Jan 2014
TL;DR: In this paper, Cardozo et al. proposed a model for conflict resolution in the context of bankruptcy resolution, which is based on the work of the Cardozo Institute of Conflict Resolution.
Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

1,336 citations

Journal Article
TL;DR: Turnout in U.S. voter turnout is especially low, but, measured as percent of voting-age population, it is also relatively low in most other countries.
Abstract: Low voter turnout is a serious democratic problem for five reasons: (1) It means unequal turnout that is systematically biased against less well-to-do citizens. (2) Unequal turnout spells unequal political influence. (3) U.S. voter turnout is especially low, but, measured as percent of voting-age population, it is also relatively low in most other countries. (4) Turnout in midterm, regional, local, and supranational elections -- less salient but by no means unimportant elections -- tends to be especially poor. (5) Turnout appears to be declining everywhere. The inequality problem can be solved by institutional mechanisms that maximize turnout. One option is the combination of voter-friendly registration rules, proportional representation, infrequent elections, weekend voting, and holding less salient elections concurrently with the most important national elections. The other option, which can maximize turnout by itself, is compulsory voting. Its advantages far outweigh the normative and practical objections to it. This article has been removed from the eRepository website since it is now published: American Political Science Review vol. 91 (March 1997): 1-14.

1,153 citations

Journal ArticleDOI
TL;DR: Turnout in U.S. voter turnout is especially low, but, measured as percent of voting-age population, it is also relatively low in most other countries as mentioned in this paper.
Abstract: Low voter turnout is a serious democratic problem for five reasons: (1) It means unequal turnout that is systematically biased against less well-to-do citizens. (2) Unequal turnout spells unequal political influence. (3) U.S. voter turnout is especially low, but, measured as percent of voting-age population, it is also relatively low in most other countries. (4) Turnout in midterm, regional, local, and supranational elections—less salient but by no means unimportant elections—tends to be especially poor. (5) Turnout appears to be declining everywhere. The problem of inequality can be solved by institutional mechanisms that maximize turnout. One option is the combination of voter-friendly registration rules, proportional representation, infrequent elections, weekend voting, and holding less salient elections concurrently with the most important national elections. The other option, which can maximize turnout by itself, is compulsory voting. Its advantages far outweigh the normative and practical objections to it.

1,053 citations

Journal ArticleDOI
TL;DR: The authors propose a theory of political parties in which interest groups and activists are the key actors, and coalitions of groups develop common agendas and screen candidates for party nominations based on loyalty to their agendas.
Abstract: We propose a theory of political parties in which interest groups and activists are the key actors, and coalitions of groups develop common agendas and screen candidates for party nominations based on loyalty to their agendas. This theoretical stance contrasts with currently dominant theories, which view parties as controlled by election-minded politicians. The difference is normatively important because parties dominated by interest groups and activists are less responsive to voter preferences, even to the point of taking advantage of lapses in voter attention to politics. Our view is consistent with evidence from the formation of national parties in the 1790s, party position change on civil rights and abortion, patterns of polarization in Congress, policy design and nominations for state legislatures, Congress, and the presidency.

488 citations