In this proceeding (MUR #8071), the Commissioners have released statements explaining their reasons for their votes:
04/11/2024 Chairman Sean J. Cooksey
04/11/2024 Vice Chair Ellen L. Weintraub and Commissioner Shana M. Broussard
04/10/2024 Commissioners Allen J. Dickerson and James E. “Trey” Trainor, III
04/09/2024 Commissioners Allen J. Dickerson, Dara Lindenbaum and James E. “Trey” Trainor, III
Rick H is delivering the Peck Lecture, “How Can We Safeguard American Democracy?” at 5 p.m. this afternoon. With Rick P’s Dunwody lecture tomorrow, it’s a very big week for our two Ricks in election law! Many congratulation to them both for these recognitions of their important leadership in our field.
Ned already provided some commentary about yesterday’s Third Circuit decision affirming the district court’s preliminary injunction against New Jersey’s distortive county line system for primary election ballots. I want to add a few more points. (Full disclosure: Harvard Law School’s Election Law Clinic filed an amicus brief in the Third Circuit supporting the invalidation of the county line.)
First, with respect to parties’ associational rights, Ned is right that the logic of cases like Tashjian and Jones, if taken to its endpoint, would seem to support parties’ ability to demand a county line system for their primary election ballots. If the Connecticut Republican Party can compel the state to include independent voters in its primary (Tashjian), and if the California Democratic Party can force the state to exclude all non-Democrats from its primary (Jones), why shouldn’t New Jersey’s parties be able to insist on the county line for their primaries? A potential answer, hinted at by the Third Circuit’s ruling, is that there’s a difference between deciding whom to include in a primary and rigging a primary ballot so that a party’s favored candidates almost always win. The issue of who participates in a primary is genuinely associational. In contrast, a manipulative ballot design doesn’t implicate party members’ speech or association with one another to the same extent. It’s an attempt to distort party members’ choices—not to enable those choices to be freely made. In any event, even in the context of whom to include in a primary, the Supreme Court has backed away from Tashjian and Jones in recent years. So I’m reasonably confident the Court wouldn’t extend those cases to the quite separate context of primary ballot design.
Second, with respect to the Anderson-Burdick framework, the Third Circuit made clear that a policy’s disparate electoral effects can amount to a severe burden necessitating heightened scrutiny. “[R]ecord evidence that bracketing and primacy significantly impact election results[] makes the burden on plaintiffs’ rights severe.” “[T]he county-line system is discriminatory—it picks winners and punishes those who are not endorsed,” and “[t]hose outcomes amount to a severe burden on the Plaintiffs’ rights.” The defendants had argued that a severe burden can arise under Anderson-Burdick only when voters are disenfranchised or candidates are denied ballot access altogether. As the Clinic urged in its amicus brief, the court rejected this position. The court’s ruling now stands as the most emphatic judicial recognition to date that distortive electoral practices can trigger heightened scrutiny under Anderson-Burdick.
Third, the Third Circuit held that the county line is likely unconstitutional under not only Anderson-Burdick but also the Elections Clause. This is because the county line aims to influence electoral outcomes—not to regulate the time, places, and manner of federal elections, which is all the Elections Clause empowers states to do. Even though the Supreme Court has repeatedly relied on the Elections Clause to strike down state electoral policies, analogous lower court rulings are few and far between. The Third Circuit’s willingness to invoke the Elections Clause—and even to extend it to the primary election context—is thus potentially significant. It could arm plaintiffs with a potent new weapon with which to challenge distortive electoral practices.
Finally, with respect to the Purcell principle, the Third Circuit held that voter confusion can cut either way, against or for late judicial intervention. In the typical Purcell scenario, it might be confusing to voters to eliminate or amend an electoral policy close to an election. But if a policy is itself confusing, and its replacement would be less perplexing, then late judicial involvement would lessen, not heighten, voter confusion. These are exactly the facts the Third Circuit found to be present here. The replacement of the county line with conventional office block ballots “would reduce, if not eliminate voter confusion.” “Implementing office-block style ballots . . . would actually alleviate some ballot confusion.” The Clinic’s amicus brief made this point about voter confusion not necessarily favoring defendants under Purcell, and it was gratifying to see the Third Circuit agree.
Common Ground Democracy commentary on the recent developments in Nebraska and why it demonstrates the need for changing the way we elect the president.
I have written this reply, as Ron Collins explains:
It all started when I noticed an SSRN post of a forthcoming essay by Richard Hasen. In it, the UCLA School of Law professor took exception to some of what was offered up by FIRE in an amicus brief filed in the Ninth Circuit in TGP Communications v. Sellers. FIRE and Stephen Rohde thereafter weighed in with their responses to Hasen.
Now, professor Hasen returns to the analytical scene with his rejoinder, which is set out below.
A few snippets:
Neither FIRE nor Rohde address the problem, “How do you identify journalists when there is finite space or some other scarcity and decide whether to give special treatment like a media shield?” or most of my proposed solutions — such as limiting press protections to professional journalists rather than dabblers, and making the definition of “press” turn on the regularity of engaging in journalistic activities rather than on the type of technology (like a political blog) through which reporting is conveyed.
It may be that FIRE and Rohde believe all the rules that identify professional journalists, including the rules for United States Supreme Court press access that I detail in my chapter, violate the First Amendment. If so, such a ruling would not only eviscerate protection for the press contained in the First Amendment. It would also create Bedlam. Are we going to kick out reporters from The New York Times and Fox News from the White House briefing room and replace them with non-professionals who just have a personal interest in being there? Will this be done by lottery? This system would do a great disservice to the nation and to the ability of the press to serve its educational function — and to serve as a meaningful check on the government.
Are we to give everyone a press shield, essentially ending the pursuit of truth in courts? Or are we to eliminate press protections for professional journalists? Neither FIRE nor Rohde say.
Instead, they focus on only one aspect of my proposal — something which has historically not been a problem, but in the cheap speech era is increasingly becoming one: how to handle people who are professionals in the sense that they write content for websites, but they do not follow journalistic norms. Instead, they are vectors for spreading disinformation, including disinformation about elections being stolen that undermines voter confidence in the democratic process….
