All posts by Derek Muller

Linda Jenness, “John Ewards,” and qualifications disputes in Minnesota presidential elections

Rick H. linked to the complaint filed in Minnesota challenging Donald Trump’s eligibility. Setting aside the ripeness issues present in this challenge (like so many already filed), I wanted to dig into some of the history in Minnesota. There’s a higher likelihood of getting to the merits, but still some significant barriers.

Continue reading Linda Jenness, “John Ewards,” and qualifications disputes in Minnesota presidential elections
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Trump removes Colorado lawsuit over his eligibility to federal court, but it will likely end up back in state court

Hours ago, I was skeptical of the legal claims in Anderson v. Griswold, the Section 3 challenge filed in state court in Colorado. Now I can be skeptical of Donald Trump’s effort to remove the case to federal court.

First, Trump takes advantage of “snap removal,” which allows a party to remove a case to federal court without the consent of all other defendants (here, Colorado Secretary of State Jena Griswold) if those parties have not yet been “served.” Otherwise, if Griswold wanted the case to remain in state court, the case could remain in state court. UPDATE: In a response, plaintiffs dispute that the removal took place before service. So there’s some dispute of timing.

Second, Trump has a viable (but still long shot) basis for asserting jurisdiction under Section 1331. As first-year law students learn, typically a federal court only has jurisdiction if the complaint on its face has a federal “cause of action.” Here, however, there are only state causes of action. But Trump invokes an exception, or briefly summarized as the rare cases where a state cause of action includes a “substantial” federal question. As the Supreme Court has said, “substantial” is a term of art in the courts. “As our past cases show, however, it is not enough that the federal issue be significant to the particular parties in the immediate suit; that will always be true when the state claim ‘necessarily raise[s]’ a disputed federal issue, as Grable separately requires. The substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole.” It’s possible–not a great possibility, but at least a viable one–that Trump fits this rare exception.

Third, however, I think Trump will likely flop what’s been described Professors Zachary Clopton and Alexandra Lahav as “fraudulent removal.” That is, litigants who remove to federal court then immediately move to dismiss for lack of jurisdiction see their cases sent back to state court. Those professors advocate for tools for district courts to discourage or penalize this bad behavior, which can be costly and dilatory.

If Trump, as seems likely, moves to dismiss the case for lack of jurisdiction because voters do not have Article III standing to bring the claim, the case will be sent back to state court. And we’ve seen, and will see, federal courts toss lawsuits for lack of standing if voters bring claims, voters with generalized grievances undifferentiated from the general public.

And if that’s the case, the federal court will likely send the case back to state court. So I think while Trump may temporarily pause the case here in federal court, I don’t think it will stay there very long

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Anderson v. Griswold, the latest Section 3 challenge to Trump in Colorado, appears unlikely to reach the merits

If my blogging on this topic has a sense of déjà vu, my apologies. But we are in an intractable cycle of litigation on Section 3 that has a low likelihood of going anyplace. I think some cases will get there, eventually, later, with careful and targeted suits.

The latest effort, Anderson v. Griswold, has the backing of Citizens for Responsibility and Ethics in Washington, so it attracts different attention than the pro se claims filed so far. But it suffers many of the same defects.

Continue reading Anderson v. Griswold, the latest Section 3 challenge to Trump in Colorado, appears unlikely to reach the merits
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The current waves of Section 3 claims against Donald Trump are likely doomed to fail before they even touch the merits

Ned and Rick H. have done an impressive job collecting some of the commentary over the last couple of weeks of challenges being filed, or anticipated to be filed, about Donald Trump and his eligibility under Section 3 of the Fourteenth Amendment. Before arriving at the merits of any Section 3 argument, however, there are plenty of hurdles challengers must clear. Right now, those challenges are likely doomed to fail for any number of reasons.

It’s worth opening with a brief observation. Challenges to presidential candidates’ eligibility are not new. There were extensive challenges to Barack Obama and Ted Cruz (among others) in administrative tribunals and courts. Most of these challenges never reached the merits stage of whether the candidate was a “natural born citizen” because they failed to clear some other hurdle.

The bulk of challenges right now are doing exactly the same thing and making the same mistakes, or are on pace to do the same.

Continue reading The current waves of Section 3 claims against Donald Trump are likely doomed to fail before they even touch the merits
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Lost in translation: applying Section 3 to twenty-first century presidential elections

In 1868, when the Fourteenth Amendment (including its Section 3) was adopted, presidential elections looked something like this: Political parties gathered together in a convention to nominate candidates for president and vice president. State parties would then choose presidential electors inclined to support these candidates. The state parties would then print tickets in each states that typically listed these candidates and a list of presidential electors who would support those candidates. (Voters could “scratch” electors names if they did not support the entire ticket.) State election officials would tabulate the votes cast for each elector, and the highest vote-getters (ranging from 3 to 33 electors, depending on the state at that time) would be elected. The electors would meet sometime after election day to vote for president and vice president. Congress would then count the votes and declare a winner.

The only place in this process where an adjudication of a candidate’s eligibility might formally occur would be in Congress (which, in 1868, hadn’t yet ever occurred, even though it had been discussed as early as 1800). (It could also occur in the nominating convention, among voters, and among presidential electors.)

Now, of course, since 1868, much has changed, as I chronicled earlier on the power of states to adjudicate qualifications. Today, states print the ballot and develop rules for who appears on the ballot. Most states administer primary elections for delegates to a convention to choose the party’s nominees. States prohibit “scratches” and require voting for all electors as a bloc in all states. States do not even list the electors on the ballot in most states and instead only list the presidential and vice presidential nominees. States often require electors to pledge to support the ticket, going so far in some states as to replace electors who attempt to vote for someone else.

These developments make the application of Section 3 to contemporary presidential elections (setting aside any of the disputes or discussions about Section 3 itself) something of an issue of translation. The state has much more direct involvement and control over elements of the presidential election–the primary, the general, and the electors. I think that’s permissible under Article II and the Twelfth Amendment. But it doesn’t easily translate to other contexts of the administration of presidential elections, including the application of Section 3.

This isn’t to say it can or cannot be done, or that it should or should not be done. It’s only to say that some of the debates of where we are today are anachronistic. The mechanisms we use today were not available in 1868, and those newer mechanisms create some translation complexities in the present age–for which I offer no easy answers, simply this observation.

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States have the power to judge the qualifications of presidential candidates and exclude ineligible candidates from the ballot, if they want to use it

Rick H. links to a forthcoming article by Professors Michael Stokes Paulsen and Will Baude on Section 3 of the Fourteenth Amendment, and specifically the application of that section to former president Donald Trump. I am sure the paper will generate significant attention, praise, skepticism, and criticism in the weeks ahead.

But I wanted to focus on one small (but important!) piece, the ballot access issue, which I’ve written about extensively over the years–these are my own views that try to synthesize the Constitution’s text and structure with a long liquidated practices of the states. In short, states do hold the power to judge the qualifications of presidential candidates and may exclude ineligible candidates from the ballot. But they need not do so, and it is up to the legislature in each state to decide whether to implement rules to adjudicate qualifications. (And for a refresher of the path that such litigation might take, I recommend my November 2022 blog post on this topic, which has aged, so far, fairly well. And for a more succinct version of this, check out Ned’s important Washington Post piece that went up today.)

Continue reading States have the power to judge the qualifications of presidential candidates and exclude ineligible candidates from the ballot, if they want to use it
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Will Donald Trump follow the legal advice he gave to Ted Cruz in 2016 on litigation challenges to ballot eligibility?

Washington Post, January 5, 2016:

“Republicans are going to have to ask themselves the question: ‘Do we want a candidate who could be tied up in court for two years?’ That’d be a big problem,” Trump said when asked about the topic. “It’d be a very precarious one for Republicans because he’d be running and the courts may take a long time to make a decision. You don’t want to be running and have that kind of thing over your head.”

Trump added: “I’d hate to see something like that get in his way. But a lot of people are talking about it and I know that even some states are looking at it very strongly, the fact that he was born in Canada and he has had a double passport.”

CNN, January 6, 2016:

TRUMP: Well, here’s what I think. What I think I do, I’d go and seek a declaratory judgment if I was Ted.

BLITZER: What does that mean?

TRUMP: It means you go to court.

BLITZER: Which court?

TRUMP: You go to federal court to ask for what’s called a declaratory judgment. You go in seeking the decision of the court, without a court case. You go right in. You go before a judge. You do it quickly. It can go quickly, declaratory judgment. It’s very good. I’ve used it on numerous occasions. I’ve been pretty good with it actually.

So when there’s a doubt because there’s a doubt. What Ted doesn’t want to happen is, he doesn’t want to be in there. I mean, I think I’m going to win. I’m leading in every poll by a lot.

But I have a lot of friends in the Republican Party. I have a lot of friends all over the place, all right? If Ted should eke it out and I hope that doesn’t happen, and he’s got this cloud over his head, I don’t think it’s going to be possible for him to do very well. I don’t think it’s actually possible for the Republicans to let it happen because he’ll have this cloud.

So what you do is go in immediately like tomorrow, this afternoon, you go to federal court, you ask for declaratory judgment. That’s — you want the court to rule and once the court rules you have your decision.

BLITZER: But that could take a long time for the court because I don’t think the Supreme Court has never really ruled on what is a natural born citizen.

TRUMP: That’s the problem, is this doubt. People have doubt. Again, this was not my suggestion. I didn’t bring this up. A reporter asked me the question but the Democrats have brought it up and you had somebody, a Congressman say no matter what happens, we’re going to be suing on this matter. That’s a tough matter for Ted.

. . .

Look, with Ted, he should ask for declaratory judgment because that would clear it all out. And I’m doing this for the good of Ted, I’m not doing for (inaudible) because I like him, and he likes me. We have a good relationship.

This would clear it up. You go into court and ask for declaratory judgment. The judge will rule. And once the judge rules that he is OK then the Democrats can’t bring a lawsuit later on.

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Election litigation after Moore v. Harper–lessons from habeas review of state courts

This is the first in a few posts looking at litigation comparable to the issues in Moore v. Harper to see if any lessons can be learned from those areas. I started with the Takings Clause here. I’ll look at habeas next.

Continue reading Election litigation after Moore v. Harper–lessons from habeas review of state courts
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Dissent lock-stepping in New Mexico

Lock-stepping is the sometimes-derided practice of construing a state constitution in “lock step” with the federal constitution. Derided, because the state constitution may well have an independent meaning rather than a meaning designed to mirror the federal constitution. The practice adopts what the the United States Supreme Court articulates as the standard for interpreting a constitutional text.

As Rick H. links to yesterday, the New Mexico Supreme court did something a little different. It lock-stepped with a dissenting opinion in the United States Supreme Court: “A partisan gerrymandering claim under the New Mexico Constitution is subject to the three-part test articulated by Justice Kagan in her dissent in Rucho v. Common Cause, 139 S.Ct. 2484, 2516 (2019).”

That’s a novel (I think?) lock-step approach. Now, it’s possible this is not “lock-step” as “is subject to” means “is subject to, as a test we adopt” as opposed to “is subject to, because that articulation is identical to what our constitution means.” It is hard to know.

The briefing in this case did not overly focus on Justice Kagan’s opinion in Rucho or even spend much time discussing its application. At oral argument, Chief Justice Bacon asked, “Why can’t we adopt Kagan’s three-part test . . . I mean, I say Kagan, it’s not Kagan’s idea, it is simply an Equal Protection test, if you look at the underpinnings test, it echoes the Equal Proteciton analysis found in our case law in Griego and Breen. . . . I think we are imbued with that power to create that test.” Reading Griego, the New Mexico Supreme Court explained in 2013, “We apply the equal protection approach announced in Breen to answer these two constitutional questions. This approach generally requires us to first determine whether the legislation creates a class of similarly-situated individuals and treats them differently. If it does, we then determine the level of scrutiny that applies to the challenged legislation and conclude the analysis by applying the appropriate level of scrutiny to determine whether the legislative classification is constitutional.” That, to me, doesn’t read anything much like Justice Kagan’s opinion, “As many legal standards do, that test has three parts: (1) intent; (2) effects; and (3) causation.” And it’s hard to know if the New Mexico Supreme Court “created” the test or deems its equal protection clause “subject to” Kagan’s test.

And that lack of explanation brings me to timing, and a post-Moore v. Harper world. The New Mexico Supreme Court asked at oral argument about the issues in Moore, with the express question, “Should we wait?” Given that oral argument was in January and supplemental briefing in February, with a July order, it suggests the New Mexico Supreme Court did choose to wait. And after such a long time, I would have expected some deeper reasoning from the state court about why Justice Kagan’s opinion tracks the state’s equal protection jurisprudence, or how it viewed Justice Kagan’s opinion interacting with state law. There’s little reasoning in the order as it is an order, not an opinion, with seven paragraphs of legal statements.

It is likely no coincidence the state court waited until a week after Moore to issue the order. I noted after Moore that “state courts are on notice.” And I did acknowledge the possibility, “it’s possible some are emboldened in the judicial terms ahead.”

Issuing an order declaring the state legislature’s congressional map an unconstitutional gerrymander with little reasoning, and relying on a federal dissenting opinion without connecting it to the state’s jurisprudence, strikes me as something more on the “emboldened” side.

In the end, this is the problem with a potential “whack a mole” approach from the United States Supreme Court. Unless it is willing to give teeth to what the “boundaries” of “traditional” state judicial review are–and only two to four seem prepared to do so in the near future–it is going to be a constant battle in the state courts. If post-Moore federal judicial review has any teeth, cases like this one are going to get a hard look (if certiorari is pursued). But maybe a majority of the Supreme Court is not willing to whack so many moles and simply allow the state courts and political process to continue to play it out. We shall see.

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Did Moore v. Harper complicate the National Popular Vote Compact?

Consider this language from the Illinois Constitution:

Every United States citizen who has attained the age of 18 or any other voting age required by the United States for voting in State elections and who has been a permanent resident of this State for at least 30 days next preceding any election shall have the right to vote at such election. The General Assembly by law may establish registration requirements and require permanent residence in an election district not to exceed thirty days prior to an election. The General Assembly by law may establish shorter residence requirements for voting for President and Vice-President of the United States.

From the California Constitution:

A United States citizen 18 years of age and resident in this State may vote.

. . .

The Legislature shall prohibit improper practices that affect elections and shall provide for the disqualification of electors while mentally incompetent or serving a state or federal prison term for the conviction of a felony.

And the New York Constitution:

Every citizen shall be entitled to vote at every election for all officers elected by the people and upon all questions submitted to the vote of the people provided that such citizen is eighteen years of age or over and shall have been a resident of this state, and of the county, city, or village for thirty days next preceding an election.

. . .

The legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime.

In Moore v. Harper, the Supreme Court held that the state constitutions can restrain state legislatures when they are exercising authority under the Elections Clause–and the Court often refers to the Presidential Electors Clause, too, even though it was not at issue in the case.

The Court pointed toward a more limited understanding of the context of McPherson v. Blacker (1892): “Our decision in McPherson, however, had nothing to do with any conflict between provisions of the Michigan Constitution and action by the State’s legislature—the issue we confront today. McPherson instead considered whether Michigan’s Legislature itself directly violated the Electors Clause (by taking from the ‘State’ the power to appoint and vesting that power in separate districts), the Fourteenth Amendment (by allowing voters to vote for only one Elector rather than ‘Electors’), and a particular federal statute.”

Now, to the National Popular Vote Compact. The compact requires, “Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a ‘national popular vote total’ for each presidential slate. . . . The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.”

State constitutions often fix voter eligibility, including voter eligibility for federal elections. This is not a problem for congressional elections under the Elections Clause, because separate constitutional clauses say that eligibility to participate in House and Senate elections turns on the ability to participate in state elections for the most numerous chamber of the state legislature–which can be fixed by the state constitution.

For presidential elections, however, the Constitution contains no such clause. It is instead subsumed within the state legislature’s power to “direct” the “manner” of appointing presidential electors.

There was a possible basis before Moore, to the extent one had a robust understanding of the Legislature Thereof Clause of the Presidential Electors Clause, that a state legislature could ignore the state constitution when dictating the rules for presidential elections–including, potentially, voter eligibility. This was never really pressed anywhere, but certainly a possibility.

Now, after Moore, it’s fairly clear that states do not have any such power. And that puts the National Popular Vote Compact in a difficult spot.

The three state constitutional provisions I listed above are just a few of the common ones one might see. Voting is restricted to adults, to citizens, to state residents, to non-felons.

But the “national popular vote” creates difficulties under state constitutions. For one, if a state disenfranchises felons or ex-felons, the state constitution forbids those individuals from voting. A national popular vote total that includes such votes in other states (e.g., Vermont, Maine, District of Columbia) would run afoul of the state constitution. Even more significantly, state constitutions provide that residents are able to vote. The national popular vote total includes millions of non-residents from each state, added to a state’s vote totals.

It does not seem that these state constitutions merely set the floor and permit the legislature by statute to enfranchise more voters, such as those under the age of 18, non-citizens, or non-residents. The precise language may matter (e.g., does the state constitution forbid a class of voters from voting, simply ensure that a set of people are eligible, etc.). But if even one state constitution forbids the state legislature from altering the voting base in presidential elections, the compact might not be able to take effect in that state, and it might then drop the total below whatever threshold would be required for it to take effect.

I’m not sure how this might play out or if there are arguments I’m missing. But at first glance, a pretty robust limitation from the Court of McPherson and the Presidential Electors Clause in Moore v. Harper may add one more complication to the National Popular Vote (and its existing share of legal complications).

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The limited path for litigation after Moore v. Harper was set out in a series of related cases between 2004 and 2007

ELB readers may recall my post last year on Colorado General Assembly v. Salazar (2004). There, the Court, over three dissenting justices, denied cert in a Legislature Thereof Clause dispute under the Elections Clause in Colorado’s redistricting. A lot of parallels arose in that case that came out in Moore v. Harper.

Yesterday, I blogged about why I thought there might be a lot of litigation, but not a lot of success. In particular, I want to focus on one element of this–and one lesson learned from the litigation that followed Colorado General Assembly. It is going to be difficult (but not impossible) to get lower federal courts to hear these cases for a variety of procedural reasons.

Continue reading The limited path for litigation after Moore v. Harper was set out in a series of related cases between 2004 and 2007
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Moore v. Harper vindicates Rehnquist’s opinion in Bush v. Gore

The top line takeaway of Moore v. Harper is this: the Supreme Court has slammed the door shut on the argument that the state constitution or state judiciary cannot constrain the state legislature exercising power under the Elections Clause.

But Part V of the opinion, as Rick H. and Rick P. have already blogged, expressly leaves open the question of when state courts go “too far.” Part V opens, “Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein.” And later, “We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

In doing so, the Court looked to Bush v. Gore (2000):

Chief Justice Rehnquist, joined in a concurring opinion by JUSTICE THOMAS and Justice Scalia, acknowledged the usual deference we afford state court interpretations of state law, but noted “areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.” Id., at 114. He declined to give effect to interpretations of Florida election laws by the Florida Supreme Court that “impermissibly distorted them beyond what a fair reading required.” Id., at 115. Justice Souter, for his part, considered whether a state court interpretation “transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the ‘legislature’ within the meaning of Article II.” Id., at 133 (Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting).

In other words, the Court–and no justice dissented from this view–seems entirely amenable to the concept promulgated by the Chief Justice, that at some point state courts go “too far” in interpreting state law.

I pointed out back in March 2022 here in a post-Rucho analysis ahead of Moore that this “weak” version of an interpretation of the Legislature Thereof Clauses had some broad support, even among skeptics. After oral argument, I blogged about how there was strong consensus on the Court about some “middle way”–a narrow standard that would apply to some outlier cases. The Court here did, indeed, find such a boundary–but it failed to coalesce around what that boundary looks like: “We do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause. The questions presented in this area are complex and context specific.”

Justice Kavanaugh writes separately to point out that “deference is not abdication.” The varying approaches, whether Rehnquist’s opinion in Bush v. Gore or the Solicitor General’s articulation of the standard in Moore, for determining when a state court goes too far are likely not that different, and that… well, the Court may decide it another day.

In other words, the theory behind Rehnquist’s opinion has broad support–a state court can go “too far.” But the articulation of that theory–and, of course, the application of that theory in a given case–remain disputed.

Part III of Thomas’s dissent (here, joined by Justice Gorsuch) expresses significant concerns with this approach. True, Part II of his opinion suggests that a state court cannot control “what substantive laws can be made for federal elections”–surely a limitation of when a state court goes “too far.” But the narrower approach by the majority, he understandably worries, “opens a new field for Bush-style controversies over state election law.” Part III is ripe with open questions for future litigation (or law review article exploration!).

I am probably less worried than other bloggers here or than Justice Thomas about how this plays out on the ground. I have no doubt that there will be a new tranche of “Bush-style” election litigation. But the procedural posture is less likely, as he puts it, “to demand that federal courts develop some generalized concept of ‘the bounds of ordinary judicial review.'”

First, if the fundamental problem is state courts construing state law beyond what the Legislature Thereof Clauses permit, the solution is likely not a collateral attack in the district courts but a petition for certiorari to the Supreme Court, which will, I assume, dismiss the overwhelming majority without explanation.

Second, if collateral attacks do arise, they will likely arise in a different posture (e.g., state executives going “too far”–a question not addressed in this case, but the kind at issue in 2020 in the Eighth Circuit’s decision in Carson v. Minnesota) or will face significantly jurisdictional hurdles (e.g., Rooker-Feldman).

Third, state courts are on notice. True, it’s possible some are emboldened in the judicial terms ahead (I worry, for instance, specifically about hotly-contentious state courts in closely-contested election states that are facing changing personnel dynamics, like Wisconsin). Alternatively, they will likely explain how their decisions naturally follow from previous precedent and remain with the heartland of ordinary judicial review. I think Rick P.’s post last year helpfully identifies some of the challenges of this approach, depending on the level of generality one uses in describing past precedent. But my instinct is that if state courts recognize that some explanation of their trajectory is necessary, it will lessen the likelihood of running afoul of any Part V standard from Moore.

There is no question the opinion leaves open litigation routes for challengers and uncertainty for elections in the years ahead–as Thomas points out, “some of the most politically acrimonious and fast-moving cases that come before them.” And we’ll see how it plays out in the months ahead.

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