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Although the 2008 presidential primaries were in many ways a resounding success in terms of turnout, attention, and sheer excitement, many noted the pressing need for reform. States were rushing to hold their primaries sooner than ever, giving rise to "Super-Duper Tuesday," where twenty-four states had their primaries on the same day. The Democratic nominee at one point looked like it might be decided by the votes of so-called "Superdelegates" - party regulars beholden to no one. As the Democratic nomination contest wore on, Rush Limbaugh, in "Operation Chaos," encouraged his "dittoheads" to raid the party primaries of the Democrats, tilting the vote against Obama, the presumptive nominee. And there were continued grumblings about the disproportionate influence Iowa and New Hampshire had on the whole process. Fortunately, reform is in the air. The Democratic National Committee's "Commission for Change" has released its proposals for altering how the Democrats run their primaries. It is unclear how, if at all, the Republicans will follow suit. But how are we to evaluate such proposals? What do we want in a presidential primary? My Article, borrowing from the vital field of election law, proposes a set of values by which we should evaluate the presidential primaries. By investigating the various players in the nomination process - voters, parties, and the state - I isolate three major sets of "constitutional values" that are implicated in the presidential primary system: (1) the right of voters to an effective and meaningful vote, (2) the interests of the political parties in their autonomy and ideological purity (as well as in electoral victory), and (3) the concern of state and federal governments that the nomination process be legitimate, competitive, and produce a candidate who is capable of governing. Finally, I propose a master value - that of "deliberation" - that both explains and unifies the various competing values at play in the primaries. And I analyze the two major proposals for reforming the primaries, a national primary and a series of regional primaries, as well as the recommendations of the Democratic National Committee, in light of the goal of achieving "deliberative primaries."

The 2010 race for the Alaska Senate now seems to be over. After losing in the Republican Party Primary to Tea Party-backed candidate Joe Miller, Senator Lisa Murkowski staged a write-in candidacy and, bucking both U.S. and Alaska history, won the general election. Although much attention has been paid to Miller's post-election challenges to Murkowski write-in ballots, a major election law question was at issue prior to the election: to what extent can poll workers assist voters who need help in voting for a write-in candidate? After Murkowski declared her write-in candidacy, the Alaska Division of Elections distributed a list of eligible write-in candidates to polling places, in case voters had questions about how to properly spell the name of a write-in candidate. Both parties, sensing this would benefit Murkowski, cried foul, and challenged the new policy in Alaska state court as a violation of the Division's own regulations prohibiting the distribution of "information" about write-in candidates at polling places. This essay examines four issues regarding voter assistance in the Murkowski litigation: (1) how to interpret statutes and regulations regarding voter assistance; (2) what kind of assistance is permissible and what kind is not; (3) whether the state can legitimately handicap the ability of voters to write-in the name of a candidate; and (4) how decisions on assistance to voters before the election might affect a court's disposition on cases that arise after the election.

In 2010, the Missouri Sentencing Commission recommended that, in addition to offense and offender characteristics, the pre-sentencing reports prepared for the sentencing judges should also include the costs of various possible sentences. In this brief essay, I focus mainly the pragmatic case for considering cost as a factor in judicial sentencing, asking about what goals adding cost is supposed to achieve, and whether it will in fact achieve those goals. I ask three questions in particular: (1) Will including cost in the Missouri Sentencing Assessment Reports (SARs) actually change judicial behavior in the ways supporters of the reform favor? (2) Will judges use cost as a factor in a consistent and uniform way? and (3) Are judges in the best position to make cost decisions in sentencing, or should this be left to the legislature? The motivation for including cost in sentencing is in one way inarguable: sentences should at some level be determined by taking into account all the relevant information, and should be done in a way that is the most cost effective. But it is a separate question which institution – the legislature, the executive, or the judiciary -- should be making decisions about cost. There are difficulties in getting legislatures to act in ways that are cost effective, especially when dealing with punishment. Still, things are starting to change, and we might hope that sentencing reform from the top down will happen, and happen sooner rather than later. Sentencing commissions should push them to take this responsibility, and not, as is the case with giving judges the power to decide sentencing decisions, give them a way to shirk their responsibility.

In a series of articles and now in their new book, Religious Freedom and the Constitution, Lawrence Sager and Christopher Eisgruber (E&S) defend an interpretation of the religion clauses of the First Amendment which, they write, "denies that religion is a constitutional anomaly, a category of human experience that demands special benefits and/or necessitates special restrictions." While not a book review in the traditional sense, my essay takes E&S's defense of a secular First Amendment as a starting point and asks, how did we get to the point where an interpretation of the First Amendment which denies that religion is "special" came to seem plausible and even desirable? My essay proceeds in three parts. In the first part, I look at contemporary liberal political theory, in order to understand why it might be a desideratum of contemporary constitutional interpretation that the religion clauses of the First Amendment be read as denying any special place to religion. In part two, I describe E&S's project of interpreting the religion clauses in a secular manner as borrowing heavily from liberal political theory. In the third part, I present the beginnings (but only the beginnings) of a theory of religion's value, one that I believe is opposed to the theory I ascribe to E&S. According to Ronald Dworkin's theory of Constitutional interpretation, the best interpretation of a constitutional word or phrase is that it best "fits" with the Constitutional text and best captures the "value" underlying the word or phrase. I suggest that that treating religion as no more special than any other system of belief does not give the best interpretation of religion, neither in terms of fit with the text of the Constitution nor in terms of capturing the unique value of religion.

In recent months, debates over voter fraud have consumed state legislatures and blogs, courts and election commissions. The prevailing way of framing that debate has been in terms of numbers and statistics: how much voter fraud is there, and does the amount of voter fraud justify new measures to prevent it? In my essay, I argue for a shift away from statistical analysis and towards normative discourse. Only if we understand why (and whether) voter fraud is bad will we be able to decisively settle debates about what should be done about it, if anything. The first part of my paper motivates the idea that normative debate is the proper register in which to talk about voter fraud. The second part analyzes in detail two recent cases, the Supreme Court's Purcell v. Gonzales and the 7th Circuit's Crawford v. Marion County in an effort to tease out the state interest in preventing voter fraud. In the third part, I propose a normative framework that emphasizes the harm of deterring voters from participating in elections caused by new requirements on voting. When balanced against the state interest in preventing fraud and the fear of fraud, the participatory interest will usually trump. What's more, an analysis in terms of the participatory interest is a kind of analysis courts are better suited to perform, rather than having to sort through statistics about the number of incidents of voter fraud.