The Law of Politics The Legal Structure of Democracy Fall 2024
Dr. Alan Sager
All cases assigned should be briefed. Briefs need to be written and brought to class unless you can commit your brief to memory in a way that you can answers questions about it. Other reading assignments should be summarized in writing and also brought to class. NOTE: As we move through the semester, assignments are subject to change. Check this page on a regular basis.There is a videopage for this course which will be regularly updated, mainly with relevant videos from Youtube. This webpage is linked on the class website.
For each class day prepare the following assignments in the Hasen et. al. Election Law textbook and supplementary materials linked on this page. Don’t assume that because we are behind you won’t be called upon to discuss the current day’s assignments.
Class 1 Monday August 22nd Some Basic Questions based on political theory Election Law Chapter 1 | Read Pages 1-21 Also read 3 articles at bottom of the assignment, two of which, Kristol and Napolitano, are very very short. Basic Political Theory For Federalist 10 we will look at notes and questions 1-5 as well. (Presumably, most students have read this at one time or another.) This can easily be found on web as well. Here is summary of notes and questions 1-5 in case you do not have text yet:
1. What is Madison’s the definition of faction and can you easily identify groups to which the word refers
2. This goes to the Kristol piece focusing on the public interest as a goal or a process. It quotes a political scientist Peter Shcuk who says”To understand the role of special interest groups in the American polity today, then, we must define faction in a way that does not depend— as Madison’s definition manifestly does— on a transcendent conception of the public interest that no longer elicits strong defense or justification, even from those who most vehemently condemn pluralism’s processes and policies. All definitions of “special” interests can be criticized for being under-inclusive, arbitrary, or subjective. “
3. The question is really about the fact that all laws benefit some faction and perhaps are a detriment to some other faction. That is most laws have a zero sum effect thought the people making them may make a claim that this is not true. How does this relate to Madison’s view of factions and is it true.
4. “According to Madison, factions can consist of a majority or a minority of the population, but only a majority faction is likely to have its way under a republican constitution Why? Many contemporary reformers, both conservative and liberal, believe minority interests too often can veto or bring about changes in a manner contrary to the public interest and opposed by the majority. Are these reformers wrong? Was Madison wrong? Have conditions changed in relevant ways since Madison’s time? What conditions?” from Hasen Chapter 1
5. Question goes to the difference for Madison between a democracy and a republic. It is about the initiative process being democratic and anti republican form of government based on one reading of Madison. Do you agree?
Note: The textbook pages for all assignments are based on the 7th Edition of the Hasen et. al textbook. If you have an earlier edition, the pages will be different. We will cover recent Supreme Court cases that may not be in the 6th addition. You will have to go to the full text of more recent cases which can be found on the OYEZ and SCOTUS Blog websites among others.
On Burke speech we will look at notes and questions 1-5 (This is also a very famous piece. Know the categories of representation set out by Burke) The full version of this speech to the Electors of Bristol can be found on the web. Here is one link Click here Reading is 1 page or so.
Some other views of the electoral systems and elections.
Read for main points the following 3 articles. (one of the skills that should come out of this class is to learn to state briefly and succinctly the main points in case briefs (especially the facts and opinions), as well as articles, movies and so on. Angelo Codeville “Americas Ruling Class, The Perils of Democracy” (click here) Irving Kristol on idolatry of democratic machinery 1 page (click here) Judge Napolitano “What If Democracy Is A Fraud” 2 pages (click here)
If you want to know how Congressman Lloyd Doggett got his start in politics, checkout this article from a 1973 issue of the Texas Observer entitled “Polling for Doggett” by Dr. Sager
It is a step by step description of the work Dr. Sager and his then firm Political Research Associates did as pollsters and consultants for Lloyd Doggett who was running in his first race.
He ran for State Senator in a special election in July 1973 and then won a runoff in August 1973. (click here)
Class 2 Wednesday August 24th
We will spend a little more time on the articles assigned for Class 1.
II. Right To vote 1. Read Brief History pp 31-54 Note 5 pp 52 contains some data. Are the conclusions from the data correct? Why or why not?
The notes after each case will help students focus on important arguments, ideas, concepts, words, etc. in the case. Which notes to read and digest are listed after each case. Dr. Sager will discuss more about using the notes as we go through the first several assigned cases.
Brief Harper v. Virginia State Board of Educations and Notes 1-4
Brief Skafte v. Rorex Notes 1-6
Brief Kramer v. Union Free School District Notes 1-6
Class 3 Monday August 29th
Chapter 3 Representation and Redistricting 86-88
Brief Reynolds v. Simms
Brief Lucas v. 44th Colorado Assembly of Colorado Notes 1-6
Brief Avery v Midland County Notes 1-4
Class 4 Wednesday August 31st
Representation and Redistricting II
Brief Sayler Land v. Tulare Lake Basin Notes 1-5
Chapter 4 Partisan gerrymandering and Political Competition
Read 149-175
Discussion of movie: Mr Smith Goes To Washington
Class 5 Wednesday September 7th
Partisan Gerrymandering and Competition II
Brief Rucho v. Common Cause Notes 1-12
Competition and Election Law
Read 209-214
Brief Miller v Cunningham and Notes 1-4
Class 6 Monday September 12
Section 5 of Voting Rights Acts
Brief Allen v. Board of Elections and Note 1-3
Brief Beer v United States and Notes Notes 1-4
Dr. Sager will discuss Georgia v Ashcroft which is the subject of note 5.
Brief Shelby County v. Holder and Notes 1-5
Read and get a “kick” out of a modern day reference to Mr Smith entitled “Mr Smith Tried To Go To Nashville” (click here)
The writer’s blog is “Misrule of Law” and is a friend. He is U.T. law graduate and had
a long career as a corporate lawyer in California.
Class 7 Wednesday September 14
Race and Redistricting II
Section II of Voting Rights Act
Brief White v Regester Notes 1-5
Brief Thornburg v. Gingles Notes 1-3
Brief League of Latin American Voters v. Perry Notes 1, 2 and 4
Class 8 Monday September 19
Race and Redistricting III
Section II of Voting Rights Act II
Brief Bartlette v. Strickland Notes 1,2 8 and 9
Brief Johnson v. DeGrandy Notes 1-4
Brief Holder v. Hall
Brief Thomas opinion in Holder v. Hall Make sure you know the other Justices opinions based on the note in textbook on page before Thomas opinion. Use this brief for the rest of the case Click Here
Class discussion: All The King’s Men
Note exam date changed back to Monday September 26th
Class 9 Wednesday September 21
Race and Redistricting IV
Racial Gerrymandering
Brief Shaw v. Reno Notes 1-5
Brief Post Shaw Decisions Summarize 365-379
Brief Alabama Legislative Black Caucus v. Alabama Notes 1-2
Class 10 Monday September 26
Exam #1
Exam will cover assigned reading and cases through Class 9, example briefs on Minor v. Happersett, Lucas v. Colorado Assembly and Holder v. Hall plus .movies Mr. Smith Goes to Washington and All The King’s Men. For cases with multiple opinions students are expected to know the positions of various justices. Ashcroft v Georgia will not be
covered on the exam. Ball v. James discussed in connection with Sayler maybe. Students are also expected to know the content of the major Amendments affecting voting and elections as well as the appropriate parts of the Voting Rights Act.
For those doing the poll watching assignment for their 2nd paper later in the course, you now have to take a short online course which I did Sunday September 18th. https://www.sos.state.tx.us/elections/onlinepollworker.shtml
Also
Class 11 Wednesday September 28
Election Administration and Remedies
Constitutional Claims
Brief Bush v. Gore Notes 1-11
Read Voting Technology 416-420
Voter Identification and Other Burdens On Voting
Brief Crawford v. Marion County Notes 1-5
For a summary of data on voter i.d. laws affect on fraud and turnout read this article from Vox (click here)
Is this study compatible with author’s Note 5. If not, who is right. Should the author
have noted contrary findings? Does this tell you anything about the authors?
How does this fit in with the election administration section of the book
related to remedies and Dr. Sager’s summary of other
cases on judicial remedies.
For the Bush v Gore Chronology (click here)
For 8 Views From Cathedral( Click Here
Class 12 Monday October 3rd
Election Administration and Remedies I
Race Discrimination
Brief Brnovich v. Democratic National Committee Notes 1-2
Law and Turnout
Read and summarize pp 469-488
Also for this class read the Texas poll watchers guide. https://www.sos.state.tx.us/elections/forms/pollwatchers-guide.pdf
Class 13 Wednesday October 5th
No Class Religious Holiday
Read Mollie Hemingway Rigged: How the Media, Big Tech, and the Democrats Seized Our Elections
If you fact check anything in book, let class know what you did and what you found. She has a point of view as she goes through the events leading up Election Day 2020 and their impact on it.
She also has a point of view about those events as they happened. For the Washington Post review of book (click here) Here is the Guardian critique of the book (click here
For MSNBC indirect comments on book (click here)
Briefing Assignment Now Posted
Due on Wednesday October 19th(click here)
Class 14 Monday October 10th
Election Administration and Remedies III
Judicial Remedies
Brief Pabey v. Pastrick Notes 1-6
Other Remedies when election fraud is uncovered
Dr. Sager will discuss some other cases dealing with remedies, namely what can courts do to remedy voter fraud or election violations when an election is over. Hasen finally added a case like Pabey in this edition. For some reason remedies had been left out of earlier editions. Any ideas as to why? For summary of additional remedy cases (click here)
Be prepared to argue either side of the voter fraud issue in class. You may be asked to argue either side or to summarize in writing the arguments of each side.
Read about the Georgia Voter I.D. law and its impact (click here)
Read about voter i.d. and Bush v. Gore problems in Real Clear Investigations piece entitled “Oh, for the Good Old Days of Hanging Chads: The Legal Snarls of 2020” (click here)
The Heritage Foundation has put up a website that contains information of proven instances of voter fraud in which there are
992 convictions. There are over 75 instances from Texas all of which occurred from about 2005 to the present. (Click here)
For another point of view see The Brennan’s Center article The Myth of Voter Fraud (click here)
Also read Slate article on myths about 1960 Nixon Kennedy election (click here)
Be prepared to discuss the movie All The President’s Men the Hollywood version of the Woodward Bernstein on the Watergate scandal. Led by Dustin Hoffman and Robert Redford among others. the movie won 4 Academy Awards. It covers the scandal up to Nixon’s reelection. Compare it to our previous movies on concepts as role of the press, party loyalty, nature and importance of charges, view of the political and electoral process, behavior of main character etc.
Dr, Sager will go over objective part of exam.
Mr. Schwabe will give brief comments on essay questions
Chapter 7 Ballot Propositions
Pros and Cons
Read and summarize Ellis article pp 503-512
Class 15 Wednesday October 12th
Ballot Propositions II
Brief People’s Advocate v. Superior Court Skip notes
Brief In Re Advisory Opinion to the Attorney General Notes 1-5
Read and summarize The Separate Vote Requirement and Academic Criticism of the Single Subject Rule pp 559-563
Dr. Sager will discuss and summarize Procedural Requirement and Judicial Review pp 562-581
We will discuss All The President’s Men. Contrast and compare to previous two movies at least on the view of the press and elections, politicians motive, the roles of people around politicial camdidates and officeholders, outcomes. impacts of the main character. Dr. Sager first met Richard Nixon at a political event in 1965. For a variety of reasons some he did not vote for him in 1968 or 1972. If time, he will tell about the phone call he was cut into by mistake while in graduate school in 1968.
We will also begin our discussion of the Hemmingway book Rigged
Class 16 Monday October 17th
Please bring a pencil to do an interim evaluation on the class so far.
Chapter 8 Major Political Parties
The Party and the Political Process
Read and summarize pp 582-589
Obligation of Parties Under The Constitution
Dr. Sager will discuss The Texas White Primary cases Nixon v. Herndon, Nixon v. Condon Grovey v. Townsend Smith v. Allright Terry v. Adams
Dr. Sager’s summary of these cases (click here)
read and summarize pp 589-97
Brief Tashijan v Republican Party of Connecticut Notes 1-7
Brief Elrod v. Burns Notes 651-661
Chapter 9 Third Parties and Independent Candidates
Dr. Sager will summarize chapter
Be clear: If you are registered to vote in Travis County your assignment for the 2nd paper is to be a poll watcher at an early voting location. Poll watching assignment sheets will be handed out on Wednesday at Class 17. There can only be 7 poll watchers per location so signup for various locations will take lace on Wednesday as well. I will be checking to be sure the 7 watcher limit applies to early voting as well.
Class 17 Wednesday October 19th
Chapter 10 Campaigns
What We Know About American Political Campaigns
Read and summarize pp 715-722
Regulating Campaign Speech
Brief 281 Care Committee v Arneson Notes 1-6
Read about Susan B. Anthony League(SBAL) v. Driehaus ( click here) Read only the two page summary at the beginning of the Supreme Court case> From the opinion just be sure you fully understand the facts and the Ohio law in question. At this point in the litigation, the only question before the Court was whether the SBAL had standing to bring the suit. A similar question was before the Court in the Crawford case. A Federal District Court in Ohio held the Ohio law in this case unconstitutional on the merits. See the following newspaper article(click here) for a report on that decision. The 6th Circuit reversed and the Supreme Court unanimously reversed the 6th Circuit and said SBAL made a claim that should be heard by the lower court that the 1st Amendment might be violated.
Regulating Judicial Campaigns
Dr. Sager will briefly discuss Republican Party of Minnesota v. White and Williams Yulee v. Florida Bar and Caperton v. Massey
all of which are covered in more detail in his Judicial Process class
Chapter 11 Bribery
Bribery of Candidates
Brief People v. Hochberg
Bribery of Public Officials
Brief People ex rel Dickinson v. Van de Carr
Write out the elements of bribery and read each case with regard to what element is being covered. Notice whether you personally think the fact situation shows bribery or activities that ought to be punished by the law.
read and summarize pp 589-97
Chapter 9 Third Parties and Independent Candidates
Dr. Sager will summarize chapteraper
Paper #1 due.
Class 18 Monday October 24th
Chapter 11 Bribery
Brief State v. Agee
Brief McCormick v United States
Brief United State v. Sun Diamond Growers
Brief Mc Donald v. United States
Dr. Sager to discuss United States v. Ted Stevens(The Late Senator from Alaska)(click here) President Trump has tweeted something that Greg Jarrett a lawyer and Fox contributor said about Bruce Ohr of FBI fame and his wife Nellie of Fusion GPS fame. Namely, they may have violated federal bribery and related federal statutes while in their jobs. Click here for Greg Jarrett piece. Suggestion about this in section entitled Nellie Ohr, about 2/3 of way down page. What do you think?
Class 19 Wednesday October 26th
Finish up on bribery cases
Discuss movie Primary Colors
Class 20 Monday October 31st
Exam 2
All Assignments since last exa.
First 1/2 of Hemmingway book
Movies: All The President’s Men Primary Colors
Class 21 Wednesday November 2
Campaign Finance
The Buckley Framework
Basic Facts and Figures About Campaign Financing
Read and summarize pp 853-857
Brief Buckley v. Valeo and all notes after case
Empirical Observations about and Theoretical Justifications For Campaign Finance
Regulation
Read and summarize pp 892-900
Money “is the mother’s milk of politics.” This quote is attributed to Jesse Unruh the Democrat speaker of the California House from 1961-68.(For an interesting article by a liberal writer with this phrase as the the title (click here)). Money in politics is also a source of many instances of hypocrisy, crime, and other immoral acts.
The Buckley Framework II
Preventing Corruption
Read and Summarize pp 900-907
Promoting Equality
Read and summarize pp 907-925
Make sure you understand the arguments on all sides of the issue. Here are some of the questions we will consider. Read introductory notes and 807-814 Read Begin to acquaint yourself with some of the empirical and theoretical justifications for campaign finance regulation in the notes.
These notes consider some of the following questions raised in Bucklety
1. What are the first amendment issues with campaign fiance?
2. What is the difference between an expenditure and a contribution?
3. What are the rationales for even regulating campaign financing?
4.Does regulation of campaign financing actually work?
5. How do various ideologie or theories of the how the United States does and should operate view the campaign finance issue, Republicans v. Democrats, pluralists, progressives, conservatives and so on?
6. Can you have a fair campaign finance law?
7. What campaign financ issues can you think of that are not covered by the Buckley opinion.
Chapter 13
Spending Limits
Brief First National Bank of Boston v. Bellotti
Limiting Spending and the Citizens United Revolution
Brief Citizens United v. FEC and all notes
Brief American Traditional Partnership v. Bullock
Introduction to Citizens United v. FEC.
This case is well known and either loved or reviled by different sides of the political spectrum. Former President Obama, no stranger to large sums of money, in an unprecedented act, criticized the case during his 2010 State of the Union speech, attended by most members of the Supreme Court at the time. Justice Alito just shook his head for national t.v. audiences. For one PolitiFacts take on what the President said click here, though you might wait till you read the full case to view this column. This is a case about whether the campaign finance laws cover a corporation that makes a movie for the 2012 election cycle about Hillary Clinton. Late in the movie, an argument against voting for her is made. You are assigned to read (or listen to)the oral argument and reargument(Court had it re-argued which is very unusual. See if you can figure out something that may have been said in the original oral argument that might suggest case needs to be argued again)Try to write a brief or take notes on the various arguments made. I am also including a link to myriad number of briefs filed by various political groups across the political spectrum on behalf of one side or the other. You might take a look at the first two pages of some of the briefs. The first two pages contain in big print, the arguments made in the brief. Usually, there are only 1 or 2 arguments made. We will read the edited case in the casebook for the next class. Also students should watch the movie The Campaign by the 2nd of these two classes since it is Hollywood’s not so veiled attack on the Citizens United case. You are in the process of learning the language of campaign finance law and civil liberties law. To help further acquaint you with the terms used in oral argument I have linked a glossary of terms and a brief summary of cases argued about in the oral argument. Try to get the main points in the arguments. Notice that future Justice Elana Kagan argues the case for the FEC in the re-argument. In part this was due to the incompetence, or better bungling of an important argument by the FEC attorney, Mr. Stewart, in the first case. See if you agree with my assessment.
Read or listen to the oral argument and re-argument in Citizens United v. FEC Original Argument Transcript (click here) Rearguments Transcript (Click here) For MP3 oral argument and reargument (click here) (This is the case page on the Oyez website. It has links to all parts of the case including the MP3 recording of the arguments) Glossary of Terms including some cases used in oral argument (click here)
Class 22 Monday November 7th
Chapter 14 Contribution Limits
Campaign Contribution In Ballot Measure Elections
Read and Summarize pp 991-999
When Are Contribution Limits Too Low
Brief Randall v Sorrells and all notes
Campaign Contributions and Political Parties
Read and summarize pp 1023-1032
For a lawsuit over spending limits in Austin City Council races and limitations on when campaigning for city office can begin. (click here)
Alternate Paper #2 Assignment click here to get you assigned race for this paper. Most are national senate races with a few interesting and potentially contested Governor races.
Note: We will also be discussing several cases played a role in the flow of doctrine from Buckley to Citizens United. These cases are mentioned in text and several of them
were assigned as part of the briefing assignment. They are FEC v Wisconsin Right to Life, Massachusetts Citizens For Life v FEC, McConnell v. FEC, Austin v Michigan Chamber of Commerce
These will be covered on Exam 3 as if they were directly assigned,
Class 23 Wedneday November 9th
Brief SpeechNow.org v FEC and notes
The New Skepticism
Brief McCutcheon v. FEC and notes
Become acquainted with this glossary of terms about campaign finance which includes case summaries as well as many words and terms used in the opinions(click here)
Class 24 Monday November 14
Chapter 15 Public Financing
Read and summarize pp 1078-1101
Brief Arizona Free Enterprise Club v. Bennett and notes
Discussion: The move The Campaign with Will Farrell, Zach Galifianakis Warning there are are several strongly antiChristian scenes, foul language scenes and sexuallly explicit scenes and language.
However, film did well, grossing over $100 million in 2012. It is Hollywood’s attack on both the Koch brothers, political contributions, and Citizen’s United as you will see near the end of the film. the critics have a variety of viewpoint including saying the film is politically well balances points our problems. One says “While many audience members may be suffering from political fatigue this election year, The Campaign exposes the process for the circus it truly is. ” You decide for yourself.
We will also discuss Hemmingway chapters on Hunter Biden and Mark Zuckerberg. Read this recent article about some social science research https://dailycaller.com/2022/11/06/robert-epstein-2022-midterm-elections-google-bing/
Class 25 Wednesday November 16th
Chapter 16 Disclosure
The Government Interests in Disclosure
Brief Buckley v. Valeo
Brief McIntyre v. Ohio Election Commission
Paper #2 Due
Class 26 Monday November 28th
Disclosure II
The New Skepticism
Brief Americans for Prosperity v. Bonta
Putting It All Together: Issues and cases covered in this course, 2nd papers, and the 2022 and 2024 Elections
Discussion: Our Brand Is Crisis
Be ready to explain how it all fits or doesn’t fit for you.
Class 27 Wednesday November 30th
Exam #3
All cases since 2nd Exam. Also articles discussed in class
related to those cases.
Last 1/2 of book Rigged
Movies Our Brand is Crisis The Campaign
Class 28 Monday December 5th