All posts by Ned Foley

Can Congress Disqualify Trump After the Supreme Court’s Section 3 Ruling?

A Lawfare essay analyzing how best to read Trump v. Anderson for understanding its potential implications down the road. The piece delves deep into the details of both the per curiam and the separate opinion by the three liberals on the Court, but the unfortunate bottom line of uncertainty is reflected in the essay’s subtitle: “The dueling opinions for the 9-0 decision support two opposing interpretations on this crucial question.”

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Arizona’s Especially Worthwhile Electoral Reform Effort

A new Common Ground Democracy essay with this subtitle: “A local group is pursuing a proposal that deserves nationwide recognition as well as success at home.”

ELB readers should be especially interested in following the development of this important effort. Given Arizona’s status as one of the most hotly contested electoral battlegrounds–the only state with “toss-up” races in both its presidential and U.S. Senate elections, according to Cook Political Report (with Amy Walter)–the pursuit of this particular proposal, with its pragmatic flexibility, could serves as a model for how other states might tackle the increasing problem of partisan polarization.

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Super Tuesday Was Not So Super for November’s Voters

New Common Ground Democracy column, with this subtitle: “The consequences of the nation’s two-party system is vividly on display with the elimination of Kyrsten Sinema and Nikki Haley from their respective races.” Since writing the column last night, I was listening to Chuck Todd’s most recent podcast with Amy Walter, and one point they made that is relevant to the Common Ground Democracy column is that, whereas Arizona’s 2018 U.S. Senate race between Sinema and Martha McSally was contested within the 40 or 45 yard lines, to invoke the football analogy, this year’s race between Sinema and Kari Lake will involve candidates positioned much closer to each of the end zones. As the two of them observed, this kind of electoral competition in a 50-50 purple state, like Arizona, is much different than the Sinema-McSally race even though the state is equally purple in both cases. This point is the critical one, given the partisan polarization of American politics, and is why the analysis of the new Atkinson-Ganz paper that I highlighted in my previous Common Ground Democracy column is so important.

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“‘The Primary Problem’: How hyperpartisan minorities hijacked elections”

I highly recommend listening to Chuck Todd’s podcast with Nick Troiano. They discuss Nick’s important new book “The Primary Solution,” and among other valuable points Nick makes is that the current system of partisan primaries is actually hurting political parties, which would benefit from a system in which all candidates from all parties competed against each other, and the parties separately could endorse whichever candidate they wanted.

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“A Top-3 Presidential Election System”

Happy President’s Day. Here’s a new Common Ground Democracy column explaining why and how to apply the top-3 electoral system that Eric Maskin and I describe in our Project Syndicate column to presidential elections. The key, as explained at the end, is to modify the concept of the National Popular Vote Interstate Compact so that it can implement the top-3 system among states having at least 270 electoral votes. As you watch the current three-way competition between Biden, Trump, and Haley (for at least as long as Haley keeps her campaign going in the current system), imagine what that same three-way competition would look like if this top-3 system were in place instead of our current presidential election procedures.

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Article II & Australian Ballots

Rick linked yesterday to a Slate column arguing that an originalist perspective on the pending Colorado case would need to conclude that states don’t have the authority to remove candidates from the ballot in a presidential election because there were no government-provided, or what are usually called Australian, ballots in the U.S. back then. The premise of the column is correct, but not its conclusion.

It’s true that the United States did not widely adopt Australia’s innovation of government-provided ballots until the 1890s, several decades after adoption of the Fourteenth Amendment. At the time, political parties provided the ballots. That was true for the presidential election of 1868, the first after ratification of the Fourteenth Amendment.

It is also true, as Derek observed months ago in an important ELB blog post, that this historical fact necessarily complicates the interpretative question of what power a state legislature has regarding potentially ineligible presidential candidates. But as Derek also recognized at the time, and I emphasized in my follow-up post to his, the difficulty of “translating” the original understanding of Article II’s relationship to the Fourteenth Amendment’s disqualification provision does not mean this interpretative challenge is impossible. Even more, it certainly does not necessarily entail the conclusion that states like Colorado lack the relevant Article II power in this context.

On the contrary, as I’ve endeavored to show in my subsequent work on this topic, including the post-argument The Atlantic essay, the relevant originalist question is whether states in the presidential election of 1868 would have had the power to enact legislation to make sure that the state’s duly appointed electors did not cast their electoral votes for a candidate disqualified by section 3 of the Fourteenth Amendment. I’ve explained, and won’t repeat here, why I believe the best interpretative view of the original understanding on this point is that the ratifiers of the Fourteenth Amendment and other citizens participating in the 1868 presidential election would have viewed state legislatures as having this power. This interpretation of the original understanding is not affected by the lack of Australian ballots at the time. It does not depend on the particular details of how states administered the popular vote for the appointment of presidential electors back then. Instead, the key point is the one confirmed by the Supreme Court in Chiafalo–that the Article II power to determine the “manner” of appointing the state’s electors encompasses a power to dictate whom those electors vote for (and accordingly encompasses the power to dictate that electors do not vote for someone ineligible to hold the office of presidency).

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Quick Note on the Chesebro Docs

The second edition of Ballot Battles has gone to press (it’s scheduled for release on May 10), and so I won’t be able to include any discussion of the newly disclosed documents. (Maybe there will be a third edition sometime, depending on what happens this year and into the future?)

Apart from the obvious awfulness of the Trump team’s effort to overturn Biden’s valid victory, which of course we already knew, what strikes me about the scenarios that Chesebro described in these documents are two points:

First, I don’t understand how he could have thought that they would be able to get Pence elected Vice President by the Senate, so that he could serve as Acting President starting on January 20 instead of Nancy Pelosi. Under the Twelfth Amendment, the election of the Vice President goes to the Senate only after the joint session completes the counting of electoral votes and the tally reveals that no candidate won a majority. But the counting of electoral votes would not be complete according to the plan that Chesebro described. Instead, the strategy was to bring the count to a standstill, to run out the clock on the two weeks between January 6 and January 20. But in that circumstance, the election of the vice president would never get to the Senate, and under the Twentieth Amendment (and the congressional statute pursuant to it) Pelosi would have had the right to become Acting President. Thinking that the Senate could have given the election to Pence seems a mistake similar to the one that the Democrats made in the Hayes-Tilden dispute thinking that by delay they could get the House to elect Tilden under the Twelfth Amendment. It didn’t happen the way the Democrats wanted then because the count of electoral votes need to be complete before the House could elect the president, and once the count was complete according to the procedures Congress adopted for the dispute (including the creation of the special Electoral Commission), Hayes ended up with a bare majority and the presidency.

Second, the most dangerous aspect of the Chesebro docs–especially looking to the future instead of the past–is the idea that either chamber of Congress would refuse to adopt the concurrent resolution that is traditionally used to embraces the procedures of the Electoral Count Act. Historically, the way that Congress has bound itself to the ECA’s procedures is by means of a Concurrent Resolution adopted at the beginning of the new Congress before the joint session occurs. Now that the ECA has been amended by the new Electoral Count Reform Act, presumably the same kind of Concurrent Resolutions will be used to put ECRA’s provisions in place for the next joint session on January 6, 2025. One must hope that there won’t be any attempt in either chamber to repudiate the bipartisan work that achieved the much-needed ECRA reforms. To think optimistically on this point, perhaps the strong sense that Chesebro’s machinations were disgraceful will help serve as a disincentive to any consideration of a similar idea in the future.

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“A ‘Top Three’ Version of California’s ‘Top Two’ Elections”

Common Ground Democracy essay that develops further the proposal discussed in the Project Syndicate column with Eric Maskin. This essay includes more examples of congressional elections for which the proposal would make a significant difference and also connects the proposal more directly to the concern about legislative capacity that Rick Pildes has so helpfully focused on.

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“What the Colorado Oral Argument Missed”

For The Atlantic:

The justices seem ready to leave the issue of Donald Trump’s eligibility up to Congress. Here’s why they shouldn’t.”

After acknowledging why the justices would be inclined to rely on Trump’s congressional exclusivity argument, the piece details some relevant history that cuts the other way.

A snippet:

“At the oral argument, Justice Samuel Alito asked Murray to suppose that a “legislature really doesn’t like candidate A, thinks candidate A is an insurrectionist, so the legislature passes a law ordering its electors to vote for the other candidate. Do you think the state has that power?” Murray was a bit tentative in his answer, almost as if he were embarrassed by this constitutional provision. He should have been much more emphatic in declaring that, absolutely, this is the way our presidential elections are set up.”

For example, in 1868, the first presidential election after ratification of the Fourteenth Amendment, “Florida’s legislature took back the power to appoint the state’s electors.” The pro-Reconstruction legislature wanted to make sure that anti-Reconstruction voters couldn’t give the state’s electoral votes to Grant’s Democratic opponent.

Also, Ohio’s legislature rejected Clement Vallandigham’s candidacy for the U.S. Senate that same year for fear that he was disqualified by his pro-Confederate conduct during the Civil War. The state’s legislature, or any other, could also have made sure that the state’s presidential electors would not vote for Vallandigham if he had been the Democratic nominee that year.

More details and links in the piece, which ends with a reiteration of the concern raised in the amicus brief I worked on with Rick Hasen, Ben Ginsberg, and Michael Kimberly (and mentioned in the oral argument) about what might happen if the Court punts the disqualification issue back to Congress by relying upon Trump’s congressional exclusivity argument.

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“How to Depolarize American Politics”

Eric Maskin and I have co-authored a Project Syndicate column that describes a “top three” variation of California’s “top two” electoral system. It would enable effective electoral competition by a new third party in between MAGA Republicans on the right and progressive Democrats on the left–something which is not feasible given the currently dominant two-party electoral system. Moreover, this “top three” system does not use Ranked Choice Voting and thus potentially can sidestep the unfortunate demonization of RCV that has occurred recently. As we collectively continue to explore potential solutions for the problems that presently afflict American democracy, this idea should be included in the mix.

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Conversation on Colorado Case

On Monday, the University of Arizona law school held a conversation on the pending U.S. Supreme Court case from Colorado involving the question whether Trump is disqualified by section 3 of the Fourteenth Amendment. Andy Coan, the director of the law school’s Rehnquist Center (which sponsored the event), led the conversation, and I served as the discussant. Thanks to Andy’s well-organized questioning, we were able to cover the plethora of major issues in the case. The video is now available.

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Chuck Todd on the “FUBAR” Congress & What to Do about It

Chuck Todd of NBC starts his new column: “Yes, democracy is messy. … But there’s messy — and then there’s the current state of American politics.”

He astutely attributes the problem to the new information–and disinformation–ecosystem that has arisen in recent years: “There’s former President Donald Trump’s rhetorical control of the right-wing information ecosystem, which seems to force otherwise well-meaning GOP elected officials to go against their own beliefs (and even their own negotiated bills, in the case of the proposed bipartisan border deal) and fall in line for fear of losing their jobs or being canceled by the right’s noise machine.”

But he fails to discuss the larger implications of this astute point. America faces a governance crisis, to invoke Rick Pildes’s work, because there no longer exists an equilibrium that prevailed reasonably well for at least a half-century. After World War II and through the end of the 20th century, there were three elements of American politics that enabled the system to function adequately (although in the last couple of decades of that century there emerged the trends that have since developed into the current crisis):

Continue reading Chuck Todd on the “FUBAR” Congress & What to Do about It
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