All posts by Derek Muller

California Supreme Court blocks tax initiative from ballot as an unconstitutional “revision”

Unanimous decision in Legislature of the State of California v. Weber. From the introduction:

Petitioners — the Legislature of the State of California, Governor Gavin Newsom, and elector and former Senate President Pro Tempore John Burton — filed this original proceeding seeking a writ of mandate or prohibition to bar the Secretary of State (Secretary) from placing an initiative measure on the November 2024 general election ballot. The measure at issue has been designated Attorney General Initiative No. 21-0042A1 and Secretary of State Initiative No. 1935, and has been named the “Taxpayer Protection and Government Accountability Act” by its drafters. We refer to it as the “TPA.” The petition primarily contends that the TPA is invalid because it attempts to revise the California Constitution via citizen initiative. Petitioners also argue that the TPA is invalid because it would seriously impair essential government functions. Petitioners named Thomas W. Hiltachk, the proponent of the challenged measure (Proponent), as real party in interest.

“We stress initially the limited nature of our inquiry. We do not consider or weigh the economic or social wisdom of general propriety of the initiative.” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 219 (Amador Valley).) The only question before us is whether the measure may be validly enacted by initiative. After considering the pleadings and briefs filed by the parties and amici curiae as well as the parties’ oral arguments, we conclude that Petitioners have clearly established that the challenged measure would revise the Constitution without complying with the appropriate procedure. The changes proposed by the TPA are within the electorate’s prerogative to enact, but because those changes would substantially alter our basic plan of government, the proposal cannot be enacted by initiative. It is instead governed by the procedures for revising our Constitution. We therefore issue a peremptory writ of mandate directing the Secretary to refrain from taking any steps to place the TPA on the November 5, 2024 election ballot or to include the measure in the voter information guide.

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Who can sue in federal court to enforce the date of holding presidential elections (and perhaps by extension some provisions of the Electoral Count Reform Act)?

The Republican National Committee sued Nevada last month in federal court in Nevada in RNC v. Burgess. The complaint alleges, among other things, that Nevada accepts mail ballots received up to three days after Election Day, even without a postmark, and these ballots are presumed to have been postmarked on or before Election Day. The RNC is challenging that this law violates, among other things, 3 U.S.C. § 1, “The electors of President and Vice President shall be appointed, in each State, on election day,” which is “the Tuesday next after the first Monday in November.” (It is also raising related challenges for congressional elections.)

There is a question of the merits of this argument, but I am not going to write about that.

Instead, this is a very long Fed Courts-y post, so please bear with me. But the core question at issue in some recent and interesting briefing is, who, if anyone, can enforce this provision in the federal courts? And, perhaps more broadly, under what circumstances could someone enforce this and other provisions of the Electoral Count Reform Act?

Continue reading Who can sue in federal court to enforce the date of holding presidential elections (and perhaps by extension some provisions of the Electoral Count Reform Act)?
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Citing First Amendment, Michigan Supreme Court narrows construction of voter intimidation statute after 2020 robocall prosecution

People v. Burkman and People v. Wohl, decided yesterday by the Michigan Supreme Court, a 5-2 decision. The majority narrowed construction of the statute and remanded for further consideration. The dissenting opinions, which concurred in part, would have held that the conduct fell outside the scope of the statute. The core of the holding is that the criminal statute still extends to “proscribe that speech only if it is intentionally false speech that is related to voting requirements or procedures and is made in an attempt to deter or influence an elector’s vote.” On remand, the court will decide whether the facts of the case fit that here. From the opinion (lightly revised):

Continue reading Citing First Amendment, Michigan Supreme Court narrows construction of voter intimidation statute after 2020 robocall prosecution
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Could the Court’s unanimous decision in FDA v. AHM upend some federal election litigation?

In order to sue in federal court, a plaintiff must have “standing,” an actual or imminent concrete and particularized injury in fact caused by the defendant and redressable by a federal court. Many lawsuits are thrown out for lack of standing. In particular, and of particular relevance in election cases, many lawsuits are thrown out because the plaintiffs allege a “generalized grievance,” an injury shared in common with the public and not “particularized.” In federal court, an increasing number of plaintiffs have been non-profit organizations alleging a distinct harm to them, and they have survived the standing inquiry.

But the Supreme Court’s decision today in Food and Drug Administration v. Alliance for Hippocratic Medicine might have just disrupted this litigation path in election cases.

Continue reading Could the Court’s unanimous decision in FDA v. AHM upend some federal election litigation?
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Illinois court issues permanent injunction for law that changed ballot access rules mid-election

Following up on my earlier posts here and here, the order in Collazo v. Illinois State Board of Elections is here. The court found that strict scrutiny was the appropriate standard of review and that it failed; and even under the lesser Anderson-Burdick standard of reasonableness, it failed as an arbitrary rule. (The law can take effect for future elections.)

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CNN admits it’s using different debate criteria for Biden, Trump than Kennedy

Joe Biden and Donald Trump are two of the least popular presidential candidates of all time. It’s no surprise that an independent presidential candidate (with a famous last name) is getting outsized attention among prospective voters. But there appears to be a strong effort to box Robert F. Kennedy, Jr. from the debate stage.

As I highlighted last month right when CNN made its announcement, CNN’s “objective” criteria (the term used in federal law) to stage a debate included the requirement that “a candidate’s name must appear on a sufficient number of state ballots to reach the 270 electoral vote threshold to win the presidency prior to the eligibility deadline.” As I noted, that would exclude both Biden and Trump, as neither is the party’s nominee nor has any paperwork been filed on behalf of either candidate in any state.

Recent coverage wondering if Kennedy might make the debate stage occasionally highlights this disparity, as Kennedy’s ballot access remains fairly successful but far from certain. A New York Times piece today notes (with a somewhat playful headline, “The Big Hurdle Between R.F.K. Jr. and the Debate Stage (It’s Not a Poll)”):

The Kennedy campaign has complained that the ballot access requirement to participate had set an unfair double standard for Mr. Kennedy, asserting that neither Mr. Biden nor Mr. Trump would qualify under those rules because they have not been officially nominated by their respective parties. Amaryllis Fox, Mr. Kennedy’s campaign manager, has said that “the 270 threshold is nonsensical.”

In a statement, CNN rejected that framing, saying that “as the presumptive nominees of their parties both Biden and Trump will satisfy” the ballot access requirement, adding that “as an independent candidate, under applicable laws R.F.K. Jr. does not.”

From another statement by CNN:

The law in virtually every state provides that the nominee of a state-recognized political party will be allowed ballot access without petitioning,” a CNN spokesperson said in a statement Wednesday. “As the presumptive nominees of their parties both Biden and Trump will satisfy this requirement. As an independent candidate, under applicable laws RFK Jr. does not. The mere application for ballot access does not guarantee that he will appear on the ballot in any state.”

This is an overt acknowledgement from CNN that it is not following its promulgated “objective” criteria. Instead, for Biden and Trump, it is altering the criteria, to allow a “presumptive nominee” (not a candidate), and to say that if these individuals “will satisfy” the requirement they qualify (not a present qualification). It’s a reason (as my earlier post points out) why the Commission on Presidential Debates scheduled its debates when it did and set the criteria as it did.

Kennedy has filed an FEC complaint to this effect. But it remains to be seen how the FEC will respond.

(It’s worth noting there is a polling requirement that Kennedy must separately meet. He has met 3 of the 4 polling requirements and might be able to meet the last one in the next several days.)

It’s no surprise that the major party candidates do not want to share the stage with a third candidate. Jimmy Carter didn’t want John Anderson on stage. After Ross Perot appeared on the debate stage in 1992, the CPD raised the polling threshold to appear from 5% to 15%. Biden and Trump would be happy to debate one another without Kennedy, I’m sure. And there are criteria that could have been designed to increase the likelihood of that happening, without this sort of error of making a standard that the staging network has to modify for two of the candidates.

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Washington state law cannot bar felons from running for president

This piece, by a columnist at the Seattle Times, is suddenly attracting terrific attention. It notes that Washington law allow someone “to challenge the right of a candidate to appear on the general election ballot after a primary” “Because the person whose right is being contested was, previous to the election, convicted of a felony by a court of competent jurisdiction, the conviction not having been reversed nor the person’s civil rights restored after the conviction.”

States routinely have such laws on the books, and they often do not clarify whether they apply only to state offices or to federal and state offices. But because states are categorically prohibited from adding qualifications to congressional offices after U.S. Term Limits, Inc. v. Thornton, it’s a reason to construe such statutes as applying to state offices. (Minnesota did so in 1950, for instance, in determining that its bar on ex-felons from holding office did not extend to congressional candidates.) But more generally, states cannot add qualifications to presidential candidates, either.

Continue reading Washington state law cannot bar felons from running for president
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“The board of official canvassers . . . is liable to err in overestimating its powers.”

In light of the most recent election certification dispute in Georgia that Rick H. linked to earlier this week, here’s a relevant quotation from the Ruling Case Law (1915)–which suggests there is nothing new under the sun:

The board of official canvassers to whom the boards of election of the several divisions return their certificate showing the number of votes cast for each candidate, is liable to err in overestimating its powers. Whenever it is suggested that illegal votes have been received or that there were other fraudulent practices at the election, it is apt to imagine that it is its duty to inquire into these alleged frauds and to decide on the legality of the votes. Its duty, however, is almost wholly ministerial—to take the returns as made from the different voting precincts, add them up, and declare the result. Questions of illegal voting and fraudulent practices are passed on by another tribunal. The canvassers are to be satisfied of the genuineness of the returns, that is, that the papers presented to them are not forged and spurious, that they are returns, and are signed by the proper officers; but when so satisfied they may not reject any returns because of informalities in them or because of illegal and fraudulent practices in the election. The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of the voting. All other questions are to be tried before the court or other tribunal for contesting elections or in quo warranto proceedings. And so such a board cannot set up the illegality of the election or of the votes cast thereat as ground for resisting mandamus brought to compel it to perform its duty and canvass the returns, and the court has no jurisdiction to grant an order to have the ballot boxes placed at the disposal of the board’s counsel, for the purpose of enabling it to plead properly to the petition for mandamus. . . .

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A Trump-Rubio ticket is possible, with some Twelfth Amendment wrinkles

The New York Times recently focused on the potential vice presidential candidacy for Senator Marco Rubio, the latest in a long string of earned media Apprentice-style articles in outlets discussing the very public, very slow airing of trial balloons of various vice presidential candidacies from Mar-a-Lago. But with recent pieces there and elsewhere focusing on the legal aspects of his candidacy, I wanted to highlight the potential issue.

Continue reading A Trump-Rubio ticket is possible, with some Twelfth Amendment wrinkles
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The long shadow of the Elections Clause

Rucho v. Common Cause and Alexander v. South Carolina State Conference of the NAACP both involved congressional redistricting. Each took place, ostensibly, under Article I, Section 4, Clause 1 of the Constitution, the Elections Clause.

From Rucho, “Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering.” Later, “The only provision in the Constitution that specifically addresses the matter assigns it to the political branches.” And elsewhere, “As noted, the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause,” and, “We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open.” Those quotations are just a few of the mentions of the Elections Clause.

In Alexander, the majority opinion begins, “Redistricting constitutes a traditional domain of state legislative authority. See Moore v. Harper, 600 U. S. 1 (2023); see also U. S. Const., Art. I, §4, cl. 1.” (Justice Thomas’s concurring opinion dedicates several pages to the Elections Clause–more on that for a later post.)

Of some interest is framing these cases as an Elections Clause issue to start. One would assume that if a challenger showed up in federal court with a partisan gerrymandering or state gerrymandering challenge to a state legislative map, county commission map, or local school board map, one would reach the same result. But there wouldn’t be the Elections Clause framing, which helps the Court ensure that state legislatures have primary responsibility alongside Congress, and the federal courts (by implication) are left out of the process. Each time the Court takes a federal congressional case as a vehicle to address an issue of election that that likely is meant to have broader applicability, and each time it uses the Elections Clause as a partial justification for the result it reaches, the Elections Clause casts a much longer shadow over election law that one might otherwise anticipate.

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Illinois state court blocks new law that changed ballot access rules after primary

Back on May 5, I highlighted a new election law in Illinois that changed the rules for ballot access after the primary election, blocking a number of candidates from obtaining major party ballot access through the alternative “slating” route that they were relying on. (I also noted the unusual lack of media coverage, and since then, there hasn’t been much more, but this AP story did cover it, and the president of the League of Women Voters of Illinois had this op-ed in the Chicago Sun-Times critiquing the law.)

Yesterday afternoon, a state court judge issued a preliminary injunction blocking enforcement of the law. You can see early coverage from the Chicago Tribune, the Center Square, and the Daily Northwestern. (And as with last time, no other apparent media coverage outside the state of Illinois.) Of note from the Daily Northwestern:

Attorney Hal Dworkin, who represented the Illinois Attorney General, argued the preliminary injunction could set several negative precedents for the Illinois government. For one, several previous court cases have applied strict scrutiny only when a change in electoral policy completely negated the election results, Dworkin said. 

The case may well be appealed, and this is only a preliminary injunction (final hearing is June 3), but it’s a swift reprisal in a state court, using (it appears) a state constitution’s “right to vote” provision, against a law enacted just a couple of weeks ago. We’ll see if we get a written order in the near future and how that might be used in future litigation.

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CNN [UPDATE: and ABC] will host presidential debate with Biden, Trump, but some questions about its criteria

Last November, I blogged some questions about the future of the Commission of Presidential Debates. And my instincts were right. We learned today that the Biden and Trump campaigns have privately back-channeled with one another about an alternative debate format. More at the New York Times. There are lots of political reasons for each campaign to do this–both have grievances with the CPD and apparently have the leverage to jettison it (aging candidates looking to have greater control over timing and conditions)–and have agreed to a debate hosted by CNN on terms they prefer.

To get around campaign finance restrictions, CNN has listed “pre-established objective” criteria to participate in the debate. And here’s where things get complicated.

Continue reading CNN [UPDATE: and ABC] will host presidential debate with Biden, Trump, but some questions about its criteria
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Supreme Court briefing complete on appeal of North Dakota redistricting case

Walen v. Burgum was decided before a three-judge panel and is on appeal to the Supreme Court. It involves the interaction of the Equal Protection Clause and racial gerrymandering with Section 2 of the Voting Rights Act in the drawing of majority-Native American districts in North Dakota. The district court found the maps were permissible. Of some note, an amicus brief some several states led by Alabama support the appeal here. And Cooper and Kirk (the law firm that represented the North Carolina legislators in Moore v. Harper) is representing North Dakota here. Briefing is now complete. If the Court takes the appeal, it will likely be on the docket for argument in the late fall. For more on the case, here’s All About Redistricting on it.

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“Pritzker signs election bill that would favor Democrats in November”

The Chicago Tribune has this coverage of a new election law in Illinois that changes the rules of ballot access in the middle of an ongoing campaign:

Gov. J.B. Pritzker has signed into law a comprehensive election bill that would give Democrats a significant advantage toward keeping their legislative majorities before any votes are even cast in the Nov. 5 general election.

Democrats already enjoy legislative supermajorities in the Illinois House and Senate thanks to district maps drawn by party leaders following the 2020 federal census that were crafted to minimize Republican opposition.

But the election bill given final approval by Senate Democrats Thursday, a day after the bill passed the House, would further help Democrats maintain control in the next General Assembly.

Under the new law, local political party organizations can no longer appoint candidates to fill out legislative ballots where the party did not field a primary candidate. Previous law allowed the appointment process within 75 days of the primary.

Capitol News Illinois has more. And The Center Square has a piece, “Candidates feel ‘cheated, violated, robbed’ after Pritzker enacts law ending slating.” (The bill does a lot of other things, too, like moving its quite early presidential nomination deadline up a month earlier, and adding three non-binding and unrelated referenda to the fall ballot.)

One can, of course, oppose the idea of “slating” and prefer that candidates petition, in the abstract and as a general matter. But, the reason many candidates did not petition was the fact that they relied on existing rules to allow them to be “slated” by the party for the general election. That rug has been yanked out from under them, leaving a number of uncontested elections in the upcoming election. Cold comfort offered here from one Illinois legislator: “‘A candidate who would want to run for General Assembly seat after the primary will have to run, as they can today, as an independent or a third-party candidate,’ Harmon said.”

While I typically prefer to share stories without a lot of editorializing, I want to take a moment to offer one small observation. I waited for a couple of day to see how other media outlets would cover the story. After all, we are in an era where there is an explosion in journalists who identify as covering the “democracy beat” or looking for a “democracy angle” in stories. I wondered how the Washington Post, the New York Times, the Associated Press, or CNN might cover these stories. After all, they are quite attuned to what local county officials in Nevada or Arizona are doing with respect to counting ballots, or every twist and turn of an election bill in Georgia. How about this? As far as I can tell, there hasn’t been any coverage in these or many other major media outlets of America’s sixth-largest state changing the rules of an election in the middle of the campaign to deprive hundreds of thousands of voters of the opportunity to choose a candidate of their preference, and as a number of candidates who behaved in a way relying on existing laws have lost their opportunity to seek office. But there is still time for coverage, of course, particularly as I imagine litigation is coming.

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