American democracy is under profound stress. Increasing polarization and a winner-take-all mentality to politics have led to increased conflict both within the halls of Congress and nationwide. In an era of exceedingly close elections where control of the Presidency, Congress, and state governments can turn on a relative handful of votes, the laws and processes governing democracy have themselves become a battleground.

Instant-runoff voting (“IRV”) is having a moment. More than a dozen American localities have adopted it over the last few years. So have two states. Up to four more states may vote on switching to IRV in the 2024 election. In light of this momentum, it’s imperative to know how well IRV performs in practice. In particular, how often does IRV elect the candidate whom a majority of voters prefer over every other candidate in a head-to-head matchup, that is, the Condorcet winner? To answer this question, this Article both surveys the existing literature on American IRV elections and analyzes a new dataset of almost two hundred foreign IRV races. Both approaches lead to the same conclusion: In actual elections—as opposed to in arithmetical examples or in simulated races—IRV almost always elects the Condorcet winner. What’s more, a Condorcet winner almost always exists. These findings help allay the concern that candidates lacking majority support frequently prevail under IRV. The results also reveal an electorate more rational than many might think: voters whose preferences among candidates are, at least, coherent in virtually all cases.

Local election officials (“LEOs”) face enormous pressure. They must administer elections when a wide swath of the American public has grown mistrustful of their work; they increasingly face ominous personal attacks and threats; they cope with chronic underfunding of elections; and they must navigate frequent changes in the law governing elections. Lawyers provide a critical avenue of support for local election officials. They provide guidance on how to implement legislative mandates and judicial orders; they anticipate and prevent disputes from arising; and they represent election officials when they or their offices are sued—a more common occurrence today than ever. Although lawyers are crucial to ensuring election officials (and thus elections) can function, legal support for election officials is seldom discussed. Do election officials have adequate access to competent legal counsel? Are lawyers guiding and representing local election officials knowledgeable about how elections work and the laws that govern them? How does the increasingly tricky political terrain complicate LEO access to legal support? This Essay aims to start this conversation and spur study of how lawyers support local election officials in their work. The premise of this Essay is that competent LEO legal support is critical to ensuring reliable, free, and fair elections.

The United States Supreme Court has hollowed out various voting rights protections, leaving all voters—minority and nonminority—less protected in a politically polarized America. Surprisingly, the Court has continued to protect representation for minority race voters who live in racially polarized areas. However, minority race voters risk losing that protection, typically provided through majority-minority districts authorized under the Voting Rights Act, if they build cross-racial coalitions with their neighbors. Under the Court’s interpretation of the VRA, cross-racial voting coalitions may be less protected than local majorities comprised of a single race of voters. The loss of such protection could leave their representation subject to the mercies of politically polarized national and state legislatures that may wish to, and may be allowed to, silence their voices and those of their cross-racial political allies. If America wishes to guarantee the voices of minority voters are heard when those voices are part of cross-racial coalitions, courts may need to revisit how minority political voices can be protected. For example, they may do so broadly by reconsidering the reach of the Fifteenth Amendment’s bar on race-based limitations on the right to vote or somewhat narrowly by rethinking the viability of voting structures—such as multimember districting—that were largely abandoned when used in the past to limit representation of minority voters but could be repurposed to help those voters have their voices heard today.

In 2006, the Supreme Court issued an emergency stay order in Purcell v. Gonzalez. Sparing in words and inattentive to the realities on the ground, the opinion nevertheless made a reasonable and understandable assertion: prior to issuing relief, courts presiding over elections should take into account any harms that judicial orders might cause, particularly in the lead-up to voting, alongside other considerations unique to elections. The statement was general enough to mollify the masses in the short-term. But over the long haul, it has proven to be a vehicle through which important election decisions might be made in less than principled ways.

This Paper examines two important dimensions of what Purcell omitted: how the guidance relates to principles of federalism and equity. In the years since the opinion’s issuance, the Supreme Court has elaborated on the Purcell principle, suggesting that it binds federal courts alone. Yet state courts have drawn on Purcell to justify their own decisions to rule or abstain from ruling in election disputes. In those decisions, furthermore, they have attempted to fit Purcell into their states’ equitable regimes. There is no uniformity among the states, as one might expect, but one also observes the absence of doctrinal clarity, coherence, and consistency in its application. Based on a survey of state election cases, this Paper, which is part of a larger project devoted to examining the Purcell principle, contends that the problem of Purcell is far more diffuse and potent than one could have predicted.

In Brnovich v. Democratic National Committee, Justice Neil Gorsuch posited in a short concurrence that Section 2 of the Voting Rights Act (“VRA”) does not confer a private right of action. That idea seemingly came out of nowhere, as Supreme Court precedent was clear and no one had suggested that the VRA did not allow private parties to bring suit. Justice Gorsuch’s one-paragraph concurrence was both unsupported and wrong. Even the single case he cited did not support his proposition.

An Arkansas district court and then the Eighth Circuit, however, followed Justice Gorsuch’s lead, ruling that only the federal Department of Justice (“DOJ”) may bring suits to challenge voting practices that violate Section 2 of the VRA. These holdings are yet another attempt to further undermine the vital protections of the VRA. The implications of giving the DOJ the sole responsibility for bringing all Section 2 cases is stark, as it will ultimately lead to underenforcement of the Act. The plaintiffs, likely fearful of a bad decision from the Supreme Court that would apply nationwide, chose not to appeal. Therefore, at least in the states within the Eighth Circuit, the VRA has lost some of its force given that private plaintiffs cannot bring suit.

History and precedent, however, show that Section 2 of the VRA implicitly confers a private right of action. Although the plaintiffs in the Eighth Circuit chose not to seek Supreme Court review, the issue is sure to recur. When it does reach the Supreme Court, the Justices should reject the Eighth Circuit’s holding and rule that private plaintiffs may bring claims under Section 2. More broadly, this episode shows that Justices should pay close attention to the seemingly offhand comments that other Justices make and refute them explicitly.

One way to think about the “scope” of a case is based on the range of parties who are—or must be—involved in it. The broader a case’s scope in this regard, the more burdensome and costly it can be for plaintiffs to file and the more complicated and time-consuming it may be for a court to adjudicate. Requiring large numbers of parties to be involved in a case can sometimes effectively preclude otherwise meritorious suits from being filed. This is especially true in election law disputes which often arise under harried circumstances and can be subject to strict time constraints.

This Essay explores doctrines courts have applied in recent years that have unnecessarily expanded the scope of certain election litigation. For example, some courts have applied Bush v. Gore’s Uniformity Principle at the remedial stage of election cases. Under this approach, equal protection concerns would arise from allowing plaintiffs to seek relief against allegedly invalid electoral rules only for themselves, rather than for all impacted voters within the jurisdiction. Such reasoning has led some courts to hold that relief is unavailable unless a challenge to election-related legal provisions is brought by, or otherwise on behalf of, all such voters. Because serving as the plaintiff in a case and obtaining a favorable judgment are legally significant distinctions, courts need not expand the scope of election litigation by applying Bush’s Uniformity Principle at the remedial stage.

Other courts have applied standing doctrine to expand the range of defendants who must be involved in election litigation. These jurisdictions have prohibited plaintiffs from suing a state’s chief election officers (such as a Secretary of State or members of a state election board) to challenge a state law, regulation, or other election-related provision which county officials are primarily responsible for implementing or enforcing. They have instead required plaintiffs to identify, serve, and sue each county election administrator throughout the state, often totaling scores of defendants. Courts need not apply standing doctrine in this manner, however, in order to ensure they can redress plaintiffs’ alleged harm. Since state and county election officials work together to conduct elections, Federal Rule of Civil Procedure 65(d)(2) would likely allow a court to enforce an order involving state election officials against their county counterparts. Moreover, the authority of state election officials in most jurisdictions to make rules, issue directives and guidance to county administrators, and otherwise assure uniformity in elections should also generally be deemed sufficient to ensure such state-level defendants can assure compliance with court orders.

This Article places the impact of the Voting Rights Act (“VRA”) in historical and futuristic context. There is no gainsaying that the VRA has had a tremendously positive impact in reversing or, at least, buffering the impact of discrimination throughout United States history. This is particularly—and sadly—manifest in the actions taken by some states to restrict access to the polls and voter registration in the wake of the Supreme Court’s Shelby County decision. A healthy democracy requires free and fair elections. Therefore, it is necessary to roll back such discriminatory laws. Yet, the battle over voting rights now takes place in a political universe that is vastly larger than it was at the time of the VRA’s passage. Accordingly, while measures such as the VRA have—and will continue to have—clear, positive impacts on the functioning of elections, it is important to note that elections play less of a governing role in an era in which the successful democratization of political power has led to its privatization and, correspondingly, to its lack of accountability.

Juries believe eyewitnesses. When an identifying eyewitness takes the stand and points to a defendant in a courtroom, the jury is more likely to render a guilty verdict. But how reliable is that identification? What if the eyewitness is on the stand identifying a perpetrator for the first time, in the court room, rather than at the police station with a lineup or photo array? How do those suggestive circumstances implicate a criminal defendant’s due process rights?

First-time in-court identifications are inherently suggestive. While the Supreme Court has acknowledged the suggestive nature of similar identifications, it did not directly address first-time in-court identifications in its most recent eyewitness identification case, Perry v. New Hampshire. State and lower federal courts have filled the void in the Supreme Court’s jurisprudence, but they remain divided on how to handle identifications occurring for the first time in the courtroom. Some courts opt to require a preliminary screening to assess the reliability of the identification prior to in-court admission, while other courts maintain that traditional trial procedures, such as cross-examination, the right to counsel, and jury instructions, adequately protect defendants.

After Perry, some state courts have provided defendants with additional protections. The high courts of Massachusetts, Connecticut, New Jersey, and Michigan all recognize the inherent suggestiveness of first-time in-court identifications and have adopted different procedures to protect defendants against the risks of misidentification.

This Note explores the problems with first-time in-court identifications, the inadequacy of the Supreme Court’s current jurisprudence, and several states’ approaches to offering additional protection for defendants facing a first-time in-court identification. This Note calls for state and federal courts to adopt a more stringent standard of admissibility for first-time in-court identifications, and also urges courts to construe Perry broadly to encompass actions by prosecutors. Additional protections are necessary, and even critical, to prevent misidentifications that lead to wrongful convictions. Reforming the way trial courts handle first-time in-court identifications is one way to protect the rights of criminal defendants.

To protect creations of the mind, the law needs to understand the mind. Thankfully, the rapidly emerging field of neuroscience provides an invaluable glimpse into the inner workings of the human brain. Now that scientific instruments provide a window into the living brain, it is time to reexamine the way intellectual property law decides the outcomes of infringement lawsuits.

Critically examining neuroscience in the context of the law helps to answer the most fundamental question in an intellectual property lawsuit: Was there infringement? A judicial hesitancy to understand the thought processes of artists and creators results in relying on the viewpoint of an expert, consumer, or ordinary reasonable person. This Note focuses, in turn, on the primary audience for determining infringement in patent, trademark, and copyright litigation. A brief overview of the field of neuroscience and scientific technologies facilitates the later discussion on how neuroscientific advancements can fill in the gaps for each type of intellectual property’s audience, which is key to determining infringement. Further, it addresses the hurdles of this interdisciplinary endeavor by acknowledging cost considerations and fundamental differences between neuroscience and the law.

This Note ultimately advocates that even the seemingly most well-rounded approach to audience in deciding infringement lawsuits stands to benefit from the consideration of neuroscientific understandings. Exclusively relying on either an expert, consumer, or ordinary reasonable person fails to ascertain key elements within patent, trademark, and copyright law. Neuroscience’s unique insight into the creative process can revive the long-diminished role of patent law’s person having ordinary skill in the art. Understanding the consumer brain facilitates a better utilization of the judicial test to discern the likelihood of confusion in trademark infringement suits. Finally, neuroscientific understandings of the expert brain can remedy the circuit split on determining substantial similarity in a copyright infringement suit. Each proposed method of integrating neuroscience into intellectual property adheres to the ultimate goal: to protect creations of the mind. It is time to give neuroscience its due diligence by placing the brain in the courtroom.