Election Law with Joshua A. Douglas - Podcast Transcript

 

Have you ever wondered who was doing the research that will impact your future? The research podcast lets you met those people, and learn how the University of Kentucky is exploring and strengthening our understanding of the world through research and discovery. 

Here's Alicia Gregory, director of Research Communications. 

 

Alicia: Today we’ll meet Joshua A. Douglas. He is the Robert G. Lawson & William H. Fortune Associate Professor of Law at the UK College of Law. He talks about how he chose law and his new book Election Law Stories.

 

Joshua A. Douglas: I kind of always thought I wanted to be a lawyer, I don’t know if it was from seeing movies when I was a kid or just getting to know a couple of people. I have no lawyers in my family, but I did get to know some people who were lawyers when I was in high school. I think because I was interested in making legal arguments, interested in writing. And then as my college career progressed, and I had a couple years off before law school, I really realized that I wanted in many ways to be a professional writer and lawyers are professional writers. I thought about other paths, I thought about journalism, but realized that lawyers; not only do get to solve problems, but you make more money while being a professional writer. And so all of those things appealed to me.

 

Alicia: Tell me a little bit about why you choose academia versus practice? 

 

Joshua A. Douglas: Yeah so, you know, when I was in law school, I wrote a student article, student written article for our law journal, and every law school has a law journal, usually called the Law Review and students not only edit articles that the law review is publishing by professors, but also write their own articles. And so I wrote one on voting rights, largely because of a professor I had who helped help me understand the area and was a mentor. And then mine got selected for publication and only a few did, and so I went to my professor and he said "Well you know that’s half of my job, is writing these articles." And I thought “Wow that’s really interesting and exciting,” I did practice for a little bit. After law school I worked for a judge for a couple years and then at a law firm, and I thought that was important to get some practice experience so I could see what it was like to be a real live lawyer. But I always remember what that professor had told me about you know, half his job is writing these issues- writing about these issues, and exploring the different areas of the law and trying to solve problems. And then I’ve always sort of thought of myself as a natural teacher. I always loved that aspect of mentoring people and so when I put the two together, I thought this can’t be a better career for me. So when I was in law school was when I really started thinking is this the path that would work for me and luckily it did. 

 

Alicia: For you, what does research look like in the field of law?

 

Joshua A. Douglas: Well, I joke with my non-lawyer friends, that I sit in my office and I think, and then I write about what I think, and that’s partially true. One nice thing about legal research, which I think differs from other areas, is that we not only identify the problem, but we come up with a solution as well. And our job is not complete unless we have a proposed solution. So it entails reading a lot of cases, judicial opinions, reading what others have written about these problems, looking at state statues or state constitutions, looking at the interpretation of the various issues, and figuring out where there is a gap, or where courts have gone wrong, or where scholars are advocating courts to go in a certain way but that’s wrong, or proposing laws for legislators to pass. So there’s always something about figuring out what the problem is and then also solving it. And I really like that aspect of legal research. You know I read research in some other areas as well, and it’s really great when they identify a problem, especially when they’re doing empirical work, but sometimes it takes someone else like a legal scholar to come in and use that data to then come up with a solution to the thing that they’ve identified. 

 

Alicia: So tell me a little bit about what you’re working on right now.

 

Joshua A. Douglas: So I have a new article out, I just placed it with a journal, called "The Right to Vote under Local Law". And what this article looks out is cities and towns around the country have done interesting things with their elections for local offices. So for example this November, San Francisco is going to vote on whether to reduce the voting age for city elections to 16, and to allow 16 to 17-year-olds, to vote. There are some towns in Maryland that have already done this, have lowered the voting age to 16 for their municipal elections. Some other areas where non-citizens are allowed to vote either in all elections for the city or just in school board elections. The theory being that, well, if you legally send your children to public schools, you should have a say to who is elected to create policy for those schools. There are some vacation towns that allow non-resident property owners to vote. So if you own a second home in a vacation town like Rehoboth Beach, Delaware, you have voting rights in the local election because, for example, the tax issues will affect your property rights.

 

So this new article, the rights to vote under local law, looks at all these various expansions of voting rights at the local level, and makes the argument that from a policy perspective this a good idea. It’s better to include more people in the democratic process and people who have particular stake. It looks at some research- like psychological research to determine the voting age, and it demonstrates that 16 year old is just as good as a 40 year old in terms of their cognitive capabilities to make decisions like voting that take what psychologists refer to as “cold cognition,” things, where you have some time to reflect. Sixteen year olds are not good at “hot cognition,” you know doing impulsive things that are stupid. But when they have time to reflect, such as the act of voting, then they’re just as good as a 40 year old. It doesn’t necessary advocate that as a policy perspective, there are other people who have done some of that work of expanding the right to vote, but it does look at these it, supports that policy or argument, but it also says okay what’s gonna happen when courts eventually are going to be called upon to decide legality of some of these voter expansions.

 

There’s a famous Supreme Court phrase, that Justice Brandeis once said, that he said that the 50 states have different laws, and states can be laboratories of democracy. One courage state can try out a policy, and if it works it can spread across the country. Well, in this paper, I refer to cities and towns as test tubes of democracy, states are laboratories of democracy and cities and towns can be test tubes of democracy, trying things out like expanding voting rights at a smaller scale. And my theory is that once this works, it will trickle across to other cities, which we are starting to see the infancy of now. And then potentially even trickle up to states and the national government. So the long-term goal, I think we might for example see lowering of the voting age nationwide, in 40 or 50 years if this works at the local level. And so this article looks at those issues. 

 

Alicia: In terms of states versus national law, I know there’s been some discussion on how much should states be able to decide on their own in terms of how they deal with elections. Have you done any work in that area? 

 

Joshua A. Douglas: I have. I have an article, and this article that I just mentioned Rights Under Local Law, is kind of the third in the a three-part trilogy that looks at the constitutional right to vote. So, for Star Wars fans I think it’s like “Return of the Jedi.” The first article looked at the U.S. Constitution and what the U.S. Constitution says about the right to vote. What’s interesting and most people don’t realize, is that the right to vote is not actually listed in the U.S. Constitution, and voting rights juris prudence, the court decisions about the right to vote, have all involved the equal protection clause. So the first article looked at the national constitution. My second article called "The Right to Vote under State Constitutions", did exactly that it looked at every single state constitution to see what it said about the right to vote. And interestingly 49 of the 50 states constitutions, including Kentucky, affirmatively grant the right to vote for state citizens. So my argument is that state constitutions are actually more robust, and more protective over voting rights. Everyone always wants to know what the one is that that doesn’t, it’s Arizona’s. But it’s courts have basically interrupted what it does say about voting to confer right to vote, so I think we can safely say that all 50 states confer in their constitutions the right to vote, even though Arizona is the outlier in the not making it an explicit conferral. And then this third article about voting rights at the local level.

 

So there’s a lot of interplay between these various three levels of governmental units and what they say about voting rights. I think if the U.S. Supreme Court had been better about protecting the right to vote under the U.S. Constitution, then there wouldn’t be as much of a need for state constitutions to step in and fill that void, but because, in my view, the U.S. Supreme Court has too narrowly protected the right to vote under the U.S. Constitution, there’s a lot of room for state constitutions to do that work. 

 

Alicia: Election Law Stories, your new book that’s out. Tell me a little bit about that. Why did you write this and what is it about?

 

Joshua A. Douglas: This is a co-edited book, of 13 chapters that each tell the behind the scenes story of a major case in the election law world. So, you know, students in law school they’ll typically will read the Supreme Court decision in a case, but underlying that are tons of interesting tidbits; things about the litigants and why they brought the lawsuit, things about the lawyers, things about the lower court judge that heard the case and decided the issues. And so these stories all look at the behind the scenes background of the most important cases in the field of election law. I edited the entire book and then wrote one of the chapters. I wrote the chapter on voter ID laws. Everyone thinks of voter ID as one of the big hot button issues in election law, but no one really is asking why do we even have voter ID laws in the first place. Where do they come from, what was the point, how did they start? And so, I traced the evolution of voter ID laws along with the Supreme Court decision from 2008 that upheld Indiana’s voter ID law.

 

We have a chapter in the book about Bush v. Gore, we have a chapter in the book about Citizens United, there’s a chapter in the book about Shelby County which is a big case that struck down the voting rights act. These three cases in particular, Bush v. Gore, Citizens United, Shelby County, are in the public eye and discussed a lot, and so what’s great about this book is that it tells the behind the scenes background and gets the details of that litigation.

 

Each chapter is written by a different author that I helped to compile everything. I wrote one chapter myself. It’s a great book for students who want to learn more about the background of these important cases that they are reading. Actually I think it’s a good book for the general public and we asked the authors of each the chapters to write it with the general public in mind, so that someone who’s interested in learning where did voter ID laws come from, or what actually happened in Bush v. Gore on the ground, or how did the Citizens United case actually get to the Supreme Court. And anyone picking up this book should be able to understand the basic stories of it. I think that title Election Law Stories is important. Each one is an actual story that talks about the law and encapsulates the field that that case discusses, but also tells the background of the litigants and the lawyers, and really tells the story about the case. 

 

Alicia: I think that’s really interesting, it’s an interesting approach to tell those background stories. 

 

Joshua A. Douglas: I mean it is part of a series of books, the law stories series, there’s a criminal law stories book, constitutional law stories book, so there’s a model for this kind of inquiry, but this is the first one that looks at the election law cases. And the response has been um very interesting. I think a lot of people like it, especially because it’s a different approach, to looking at the most important cases in the field and it does so in a way that’s accessible to both law students, college students and the general public. We’ve had some inquiries from political science professors, who are thinking about the book for their classes, because the book is approachable to lots of different populations. 

 

Alicia: What is your approach when you write an op-ed?

 

Joshua A. Douglas: So typically I think of a problem that the general public should know about, and I try to write in a way that the general public can understand. So I had this op-ed in CNN a couple of weeks ago about Supreme Court vacancy and what that means for election law. This is something that I think people should be talking about, and so if I can write an op-ed for media outlet to help the general public understand, I think it’s an important part of my role as a professor, especially at a public university. This year, this season as election year, I’ll get some calls from reporters, and I think that’s also an important part of educating the public, educating the reporter about the various election law implications for the stories they’re writing, that ultimately educates the public. I think that’s a very important part of the entire research agenda. The other thing I’ll do is if I have a scholarly article that I think I can break down into a shorter sound bite for the general public I’ll try to do that as well, and so that there’s multiple different kinds of audiences hearing about my work. 

 

Alicia: What’s the most rewarding part for you of working with UK law students?

 

Joshua A. Douglas: When they get excited about a topic or an issue and start doing things themselves. The most flattering example of this is that a bunch of students a couple of years ago, came to me and said they wanted to start a new student group at the Law School called the Election Law Society. Where they wanted to not only be thinking about these issues in the classroom, but have a student organization that can put on events, bring speakers in. They run an election night watch party basically, where they watch returns come in, but then also answer questions about the election. We have a blog, I think it is uky.edu/electionlaw, that had a lot of hits in Kentucky but all over the country. And all of the articles up there are written by students. I edit them and proof them before they go on the website so there’s no concern about it’s just a student view providing legal advice, everything is going through me first as a faculty advisor. But that was so rewarding for me as a professor to see the students embracing my field of scholarship, my teaching, and wanting to do more with it outside of the classroom. I think there could be no better reward for a professor then seeing the students take the initiative on something that you’re interested in. And now, I think we are maybe three years after the students created that. So now its new students that are coming in and continuing the organization and that’s really flattering for me. 

 

It’s really rewarding to see students, see when something clicks. Law is very complex and I teach first year students, and usually midway through the semester, you start to see the light bulb go off. And I love that moment. You know, I sometimes joke and say I’m kind of teaching them how to read, because the type of reading we do in law school is very different from your general purpose reading. And so that moment when it clicks for them is really great and I really love that. But I think the anecdote about the students, them going beyond and taking their own initiative to start this organization says way more about them than it does about me, but it was really rewarding for me, as well.  

 

Alicia: So, tell me a little bit about what you like best about working here at UK. 

 

Joshua A. Douglas: Well, I think that, in particular for the law school, our small size is really great because it helps us get to know the students really well, even the students that I don’t have in class, I get to know just in the hallways. And then students I do have in class, we have small enough class sizes, I get to know them on an individual level beyond just in the classroom. And that’s really great because it with the helps me help them with their careers, its rewarding for me to get to know these students more than just from what their name is in the classroom. And I think that’s been really great.

 

The other thing I say is that I think my colleagues are just wonderful. I’m fortunate to teach in a college that has natural superstars in their fields, all in the same building. So I’ve learned so much from them, whether it’s just you know informal hallway conversations, or more formal presentations. We have some just superstars on our faculty who are nationally known, and yet I get to see them every day in the law school and learn from them. And so the combination of those two things makes it just really a joy to go into the building every day. 

 

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