No, States Would Not Be Forced to Keep Biden on the Ballot If He’s Not the Democratic Party’s Nominee from the DNC

ballot access

I have been seeing stories like this and this citing to a Heritage memo saying that in some states it would be hard for Democrats to list someone other than Biden on the ballot if Democrats nominate someone else at the Democratic National Convention. I don’t put any credence into it. Joe Biden is not the party’s nominee now, and states generally point to the major party’s nominee as the one whose name is on the ballot.

For example, the memo, embedded here, cites to a provision of Wisconsin law 8.35(1) about replacing nominees when they withdraw from office after nomination. But Biden has not yet been nominated. And there’s a specific rule for presidential nominees set forth in 8.16(7):

Nominees chosen at a national convention and under s. 8.18 (2) by each party entitled to a partisan primary ballot shall be the party’s candidates for president, vice president and presidential electors. The state or national chairperson of each such party shall certify the names of the party’s nominees for president and vice president to the commission no later than 5 p.m. on the first Tuesday in September preceding a presidential election. Each name shall be in one of the formats authorized in s. 7.08 (2) (a).

And in the unlikely event that a state law would make Biden be forced to be listed on the ballot (I’m not even sure how that could be), then I expect litigation would place the actual nominee of the party on the ballot. Voters should have the right to vote for the party’s candidate, and there are cases that affirm this principle that go back a while.

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“Federal Court Orders Mississippi’s State Legislative Maps to Be Redrawn”

Voting Rights Act

Release:

A federal court has ordered Mississippi to redraw its 2022 state legislative maps in several areas after concluding those maps unlawfully dilute the voting strength of Black Mississippians.

Civil rights advocates challenged the maps and showed at trial that the maps violate Section 2 of the Voting Rights Act. Plaintiffs presented extensive expert testimony and testimony from Black Mississippians from across the state to show that the political process in the challenged legislative districts was not equally open to Black voters.

The American Civil Liberties Union, ACLU of Mississippi, Lawyers’ Committee for Civil Rights Under Law, Morgan, Lewis & Bockius LLP, Mississippi Center for Justice, and civil rights attorney Carroll Rhodes filed the lawsuit on behalf of the Mississippi State Conference of the NAACP and voters from across the state.

The court ruled that multiple new Black-majority districts should have been created — at least two in the state Senate and one in the state House. In the absence of Black-majority districts, stark racial polarization, combined with the history of racial discrimination in the state and other factors, deprives Black voters in the state of the right to participate equally in the political process, in violation of Section 2.

The ruling, issued last night, requires the creation of new Black-majority Senate districts in the areas around DeSoto County in Northern Mississippi and in and around the city of Hattiesburg, and a new Black-majority House district in Chickasaw and Monroe counties.

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“Special Counsel Is Said to Be Planning to Pursue Trump Cases Past the Election”

Department of Justice, election subversion risk

NYT:

The special counsel Jack Smith plans to pursue his two criminal cases against former President Donald J. Trump through the election and even up until Inauguration Day if Mr. Trump wins the presidential race, according to a person familiar with Mr. Smith’s thinking.

Mr. Smith believes that under Justice Department regulations, his mandate as special counsel and his authority to keep the cases going do not depend on a change of administration and extend until he is formally removed from his post, the person said.

As a practical matter, that means that the special counsel’s office is prepared to push forward for as long as possible on the two indictments it has filed against Mr. Trump. One of those, brought in Washington, has accused the former president of plotting to subvert the 2020 election. The other, filed in Florida, has charged Mr. Trump with holding on to a trove of highly sensitive classified documents after he left office and then obstructing the government’s repeated efforts to retrieve them.

Mr. Smith’s decision to keep the cases going, reported earlier by The Washington Post, comes as a landmark Supreme Court ruling on executive immunity this week has effectively postponed the election interference case until after voters go to the polls in November.

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“Big wins for Trump and sharp blows to regulations mark momentous Supreme Court term”

Supreme Court

AP:

Donald Trump and the conservative interests that helped him reshape the Supreme Court got most of what they wanted this term, from substantial help for Trump’s political and legal prospects to sharp blows against the administrative state they revile.

The decisions reflected a deep and sometimes bitter divide on a court in which conservatives, including three justices appointed by Trump, have a two-to-one advantage over liberals, and seem likely to reinforce the views of most Americans that ideology, rather than a neutral application of the law, drives the outcome of the court’s biggest cases.

The justices also contended with ethics controversies that led to the adoption of the court’s first code of conduct, though one with no means of enforcement. Months later came public statements from Justice Samuel Alito rejecting calls that he step aside from several cases over questions of his impartiality, including following the revelations that two flags associated with rioters who attacked the U.S. Capitol flew over Alito’s homes in New Jersey and Virginia.

Chief Justice John Roberts, often viewed with suspicion by Trump and his allies over his concerns about judicial independence and worries about the court’s reputation, delivered the most consequential decisions. Those include the court’s grant of broad immunity from criminal prosecution to former presidents and its reversal of a 40-year-old case that had been used thousands of times to uphold federal regulations.

“He’s got competing inclinations. One is to be the statesman and institutionalist,” University of California at Los Angeles law professor Richard Hasen said. The other, Hasen said, is to dig in “when it is something that is important enough to him.”

Presidential power is one of those issues for Roberts, who worked in the White House counsel’s office during the Reagan administration.

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“Virginia certifies John McGuire as primary winner over Rep. Bob Good, who says he’ll seek a recount”

recounts

AP:

The Virginia State Board of Elections on Tuesday certified the apparent narrow defeat of Republican Rep. Bob Good, one of America’s most conservative congressmen, to a challenger endorsed by former President Donald Trump in the state’s June 18 primaries.

The board’s unanimous vote to certify the results does not end the matter, though. Good, who chairs the hard-right House Freedom Caucus in Congress, has said he will seek a recount now that the state has declared his opponent, state Sen. John McGuire, the winner of the primary in Virginia’s 5th Congressional District.

The margin of victory certified by the electoral board was roughly 375 votes out of nearly 63,000 ballots cast, or 0.6 percentage points. That falls within the 1% margin allowing a recount to be requested. But because the margin is larger than 0.5 percentage points, Good will be required to pay for the cost of a recount himself.

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In New Supreme Court Social Media Case, Echoes of Citizens United on “AntiDistortion” and the Foreign Campaign Spending Ban, with Implications for Shutting Down Tik-Tok

campaign finance, social media and social protests, Supreme Court
I want to pick up a point first flagged yesterday by Eugene Volokh from yesterday’s decision in Moody v. NetChoice that could have relevance to new legislation, currently being challenged in court, that could ban Tik-Tok as being foreign owned.… Continue reading