ASU Law professor examines voting rights at a critical time for election law

Jacob Kostrzewski, IRLS Program Coordinator, recently sat down with Professor Joshua Sellers, an election law scholar, researcher, and professor at the College of Law, to discuss his recent research, the Election Law course he teaches, and his thoughts on voting rights issues in the United States.


IRLS Dispatch: What do you focus on within the topic of voting rights?

Professor Sellers: My primary field of research and teaching, Election Law, focuses on the legal structures that shape our politics. The field is conventionally understood to include analysis of the history and modern dimensions of the right to vote, the Voting Rights Act, redistricting issues (including racial and partisan gerrymandering), the role of political parties, election administration, and campaign finance regulation. I have produced scholarship on all these topics.

Most recently, a co-author and I published Democracy on a Shoestring in the Vanderbilt Law Review, an article presenting an original dataset of election expenditures in four states. Researchers know so little about how elections are financed. Accordingly, our article sheds valuable light on how much jurisdictions spend and, in turn, considers some of the implications of that spending. In October, another article of mine, Constructing the Right to Vote, will be published in the NYU Law Review. That article, co-authored with my colleague Justin Weinstein-Tull, critiques what we call our “reactive right to vote,” and outlines what a proactive or constructed right to vote would provide. In making our case for a robust right to vote we draw from state constitutional law, electoral management theory, federalism scholarship, and rarely examined consent decrees. Our hope is to inspire a reconceptualization of how people think about the parameters of right to vote.


IRLS Dispatch: Voting rights were a much-discussed topic before and in the aftermath of the 2020 U.S. presidential election. What are the key takeaways from last year?

Professor Sellers: Last year presented unprecedented challenges for election administrators. It is easy to forget how heightened concerns were in Summer 2020. There was concern about the health and safety of voters and poll workers. Russian interference in the election was a live concern. There was even concern over whether enough paper ballots could be designed in time to accommodate the upsurge in mail-in voting. With all of this is mind, it is worth celebrating the fact that, for the most part, voting rights were fulfilled. One key takeaway is undoubtedly that, when necessary, our elections systems are adaptable, and can accommodate changed circumstances. That is largely a testament to the underappreciated work of elections officials. That said, there is substantial room for improvement, and in many cases, voting rights were insufficiently protected. Across the country, thousands of voters were forced to vote in person, risking their health and safety, not because alternative methods of voting were infeasible. But, instead, because they live in states that chose not to utilize those methods. Another takeaway, then, is that voting rights are unacceptably fragile and contingent.


IRLS Dispatch: As we quickly approach the next election cycle, what are you most optimistic about, and most concerned about when it comes to voting rights?

Professor Sellers: I am most optimistic about high levels of political participation, both through voting and other forms of civic engagement. Election 2020 was in part defined by impressive voter turnout. My hope is that people remain engaged and continue voting, including in midterm, state, and local elections.

I am most concerned about active efforts in some quarters to disregard vote results. Any effort to undermine the will of the people and disregard clear electoral results, whether through reliance on the so-called “independent state legislature doctrine,” foolhardy post-election “audits,” or violence, should be resisted.


IRLS Dispatch: What are you most looking forward to about teaching Election Law this semester? What do you most hope your students gain from your class?

Professor Sellers: I always enjoy teaching Election Law. The course requires constant updating in response to new cases, legislation, and political developments, all of which keeps me highly engaged. I am probably most looking forward to teaching the redistricting material, since the country is currently in the decennial redistricting cycle.

I hope that my students leave the course with a comprehensive introduction to the main areas of Election Law, but, more importantly, with enhanced appreciation for how our democracy operates. With that knowledge they will be better equipped to be informed leaders in their communities and professional lives.


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