Daniel Tokaji

  • September 13, 2017
    Guest Post

    by Daniel TokajiCharles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law

    *This piece originally ran on SCOTUSblog as a part of their Summer Symposium on Gill v. Whitford

    A constitutional standard for partisan gerrymandering is the holy grail of election law. For decades, scholars and jurists have struggled to find a manageable standard for claims of excessive partisanship in drawing district lines. Most of these efforts have focused on the equal protection clause. But as Justice Anthony Kennedy suggested in Vieth v. Jubelirer, the First Amendment provides a firmer doctrinal basis for challenging partisan gerrymandering. An established line of precedent understands voting as a form of expressive association protected by the First Amendment. These cases offer a nuanced standard that would avoid the undesirable result of rendering any consideration of partisan consequences unconstitutional.

  • December 3, 2015
    Guest Post

    by Daniel Tokaji, Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law and Senior Fellow at Election Law @Moritz, The Ohio State University, Moritz College of Law

    On Tuesday, the Supreme Court will hear argument in Evenwel v. Abbott. The subject of the case is the meaning of the “one person, one vote” rule. The appellants argue that the Constitution requires equality of eligible voters among legislative districts. This argument is unlikely to carry the day – in fact, the appellants may well lose unanimously. Evenwel is still an important case, however, because what the Court says will affect how states draw state legislative districts after the next census and possibly even sooner. The hard question isn’t the disposition of Evenwel but rather its implications for the next case.

    The “one person, one vote” rule requires that legislative districts be drawn on the basis of population. Where single-member districts are used, each district must be of approximately equal population. In Reynolds v. Sims, the Supreme Court held that the “one person, one vote” rules applies to state legislative districting. This ended the states’ practice of using districts with very different populations – some with disparities over 40:1 – which generally advantaged rural areas at the expense of urban and suburban areas.

    Reynolds left open the population metric that states can or should use when drawing districts. There are several possible choices. The broadest measure is total population. That’s what Texas uses in drawing its 31 state senate districts, giving each one approximately the same number of people. Total population is also the metric used in the other 49 states, according to the United States’ amicus brief. A narrower basis for drawing districts is the U.S. citizen population (excluding non-citizens). An even narrower metric is the citizen voting age population (excluding those under 18) or, narrower still, the citizen voting eligible population (excluding people ineligible to vote due to felonies or mental incapacity). Counting only eligible voters would have a negative impact on the representation of racial minorities and other communities with large numbers of children, non-citizens, and other non-voters.

  • August 25, 2011
    Guest Post

    This post is part of an ACSblog symposium in honor of the unveiling of the Martin Luther King Jr. National Memorial. The author, Daniel Tokaji, is a Professor of Law at the Ohio State University Moritz College of Law. Professor Tokaji is also a member of the ACS Board of Directors.

    Martin Luther King, Jr. wrote that “the arc of the moral universe is long, but it bends toward justice.” But as he understood better than anyone, progress on civil and political rights is neither inevitable nor constant.  It takes hard work, courage, and perseverance.  Otherwise, injustices will fester and grow. The result will be stasis or, even worse, backsliding.

    So it was with the right to vote, which African Americans exercised for a brief period after the Civil War only to see it taken away until the 1960s. And so it is now, as many state legislatures move to enact laws that would impose new burdens on this most fundamental right. As we celebrate Dr. King’s legacy, we must also remember that the fight for civil and political rights continues. We cannot simply hope that the arc of justice will bend on its own. It is our responsibility to make it happen.

    If the history of voting rights teaches us anything, it is that articulation of a right is one thing, realization of that right quite another – and far more difficult – thing. The Fifteenth Amendment to the U.S. Constitution, ratified in 1870, states in no uncertain terms that “[t]he right of citizens of the United states to vote shall not be denied or abridged ... on account of race, color, or previous condition of servitude.” For a time, this promise was honored. African Americans voted in large numbers throughout the country, including in the states of the former Confederacy. Many African Americans also served in elective office during this period, with over 300 black legislators elected from southern states in 1872.

  • January 28, 2011
    Guest Post

    By Dan Tokaji, Professor of Law, Ohio State University, Moritz College of Law. Professor Tokaji is also a member of the ACS Board of Directors. This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision in Citizens United v. FEC.
    Contrary to popular belief, the most significant aspect of last year's Citizens United v. FEC was not its conclusion that corporations have free speech rights. The Supreme Court actually settled this question long ago. Nor is the main problem the influx of anonymous corporate spending on federal elections. Citizens United may have exacerbated this problem, but it existed before - and, at any rate, identification of big spenders can be addressed through tougher disclosure and reporting laws.

    The most significant and damaging aspect of the Citizens United decision was its obliteration of equality as a rationale that may sometimes justify limits on political spending. Overruling this aspect of the decision is a precondition to real campaign finance reform. In thinking about what can be done to promote political equality, the United States would do well to consider Canada's example.

    Citizens United was correct to affirm that campaign-related expenditures - whether made by corporations or by individuals - have an expressive quality that warrants some degree of constitutional protection. Where the Court erred was in failing to recognize the consequences of the fact that money is essential to political participation. If effective electoral speech requires money, then those without money lack an equal voice in our democracy. The ultimate consequence is to skew political debate in favor of the wealthy, both in terms of who gets elected to office and the decisions they make once in office. This is anathema to a democracy committed to the principle of "one person, one vote." In effect, the have-alots have a much greater say in our political system than the rest of us.

    Students of American campaign finance law might note that Citizens United's rejection of equality is nothing new. That is partly true. Since Buckley v. Valeo (1976), the Court has purported to forbid campaign spending restrictions designed to promote equality. Buckley famously prohibited government from "restrict[ing] the speech of some elements of our society in order to enhance the relative voice of others." On this basis, the Court struck down limits on individual expenditures in federal campaigns.

  • March 30, 2010
    Guest Post

    By Daniel P. Tokaji, an associate professor of law at Ohio State University's Moritz College of law and associate director of Election Law @ Moritz; Mr. Tokaji is also a member of the ACS Board of Directors.

    Last Thursday, federal courts decided two significant campaign finance cases. In SpeechNow.org v. Federal Election Commission, the D.C. Circuit struck down limits on contributions to a nonprofit group that sought to make independent expenditures for and against federal candidates. In the other case, Republican National Committee v. Federal Election Commission, the D.C. federal district court upheld provisions of the Bipartisan Campaign Reform Act (commonly known as "McCain-Feingold") limiting "soft money" contributions to political parties. These decisions follow the U.S. Supreme Court's January decision in Citizens United v. Federal Election Commission, which struck down a prohibition on corporate expenditures for or against federal candidates.

    The details of these cases can be mind-numbing, especially for those who don't closely follow this area of law. Focusing on the details, moreover, can cause us to miss the bigger picture.

    This comment steps back from the fine points of campaign finance law to examine the overarching problem with the Supreme Court's campaign finance jurisprudence - namely, its rejection of equality as a central value in our democracy. The body of law that the Court has developed over three and one-half decades has led not only to a stunted constitutional doctrine, but also to an impoverished public discourse. Ironically, the effect of the Court's First Amendment jurisprudence has been to suppress discussion of equality as a justification for regulating politics. For those of us who believe that equality is a central democratic value, a reinvigoration of this discourse is long overdue.

    Buckley's Rejection of the Equality Rationale

    The central problem can be traced to a sentence in Buckley v. Valeo, the Supreme Court's 1976 decision setting the framework for judicial review of contribution and expenditure limits. According to Buckley: "The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." With these words, the Court took off the table the argument that spending limits might actually enhance our democratic discourse. Buckley presumed that a system of unlimited campaign expenditures works best and, at the same time, eliminated the promotion of systemic equality as a basis for spending limits. The prevention of corruption or its appearance became the sole permissible justification for limits on individual spending.

    In the decades following Buckley, the constitutional debate over campaign finance too often got sidetracked over whether money was really speech or, as Justice Stevens argued, "property ... not speech." This is the wrong question. Whether or not money is speech, it clearly facilitates political expression. Money is necessary to have one's political views heard, and therefore to participate meaningfully in campaign-related debates.

    The observation that money facilitates speech doesn't end the constitutional inquiry, however, but is just the beginning. If one accepts the proposition that money facilitates political speech, a corollary is that those without resources aren't able to participate meaningfully in the conversations of democracy. The have-nots in our society therefore enjoy less political influence than the haves - and much less than the have-alots. In a society committed to political equality, this state of affairs is deeply troubling.