All posts by Derek Muller

Nevada Republican Party sues to stop from being forced to use a presidential primary instead of a caucus

political parties, primaries

A Nevada news outlet has the details here, and the news release from the Nevada Republican Party is here. It took me a while to find the complaint, which was filed in state court last week in a state jurisdiction that does not have electronic access. That complaint is here.

The complaint argues that the First Amendment protects the right of the state party to run a presidential delegate selection process as it sees fit, and the Nevada Republican Party (apparently) desires to hold caucuses. But the Nevada legislature two years ago approved a switch to a primary process in AB126. The Nevada Republican Party is suing to stop that.

The Supreme Court in 1981 offered a succinct, if somewhat messy, statement of the legal framework (which I highlighted during last year’s DNC calendar shuffle) in Democratic Party of the United States v. Wisconsin ex rel. La Follette:

The State has a substantial interest in the manner in which its elections are conducted, and the National Party has a substantial interest in the manner in which the delegates to its National Convention are selected. But these interests are not incompatible, and to the limited extent they clash in this case, both interests can be preserved. The National Party rules do not forbid Wisconsin to conduct an open primary. But if Wisconsin does open its primary, it cannot require that Wisconsin delegates to the National Party Convention vote there in accordance with the primary results, if to do so would violate Party rules.

States can, essentially, hold whatever presidential primaries they like, whenever they like, however they like. But the national party is not obligated to recognize the results ahead of the presidential nominating convention.

Nevada Republicans, then, are free to hold a nominating caucus at the time and place they want. The State of Nevada, however, is also free to hold a presidential primary. Voters who participate in that primary may not affect the outcome of the selection of delegates–essentially, a “beauty contest.”

This is hardly novel. In 2016, for instance, Bernie Sanders won the Washington caucus–which was a step in sending delegates to the Democratic national convention–while Hillary Clinton later that year won the Washington presidential preference primaries–which were non-binding and had no formal outcome on the process.

Now, AB126 provides, “Any rules or regulations of the party governing the election of delegates and alternates to the national convention of the party, or directing the votes of delegates at the national convention must reasonably reflect the results of the presidential preference primary election, if one has been held for the party.” That is clearly unenforceable against the Nevada Republican Party per Democratic Party v. Wisconsin. (UPDATE: It appears that this provision was then repealed by SB292 months after it was enacted, so it’s not clear that there’s much left to this suit….)

So, the complaint (which could be removed to federal court as it is a First Amendment issue, although perhaps the Secretary of State chooses not to do so) could succeed in seeking injunctive relief or a writ of prohibition. That is, under on-point Supreme Court precedent, the State of Nevada cannot force the party to accept the results of a presidential primary. (Now, that being said, the complaint is fairly imprecise and does not exactly identify what the party wants to see enjoined, speaking more abstractly elsewhere about being “force[d] . . . to use a state-run primary.” The state can still hold a primary per Democratic Party v. Wisconsin.)

On the declaratory relief front, the plaintiff may fare slightly better. The Nevada Republican Party wants a declaration that the party is free to use a caucus system or that primary results are not binding.

One wrinkle to any relief, however: the complaint does not say that the Nevada Republican Party has committed to any particular presidential delegate selection process for 2024. That may mean that the complaint is not ripe for adjudication, as it is possible that the party chooses to use the primary process, and there is no legal conflict if that happens. It seems to want a declaration that it is free to do what it wants without formally indicating that it does not want a primary.

Finally, there are some “conventional wisdom” political ideas floating about that suggesting an intra-party feud, too–the conventional wisdom being, Donald Trump may fare better a smaller event with the most “die hards” in attendance, whereas a (closed) primary election that brings more Republican voters into the selection process will be to his detriment. It’s not clear whether that’s the motivation, or whether that would be the actual effect. And even here, many Republicans in the Nevada legislature favored AB126–this bill was not along starkly partisan lines. But it also highlights potential internal divisions about what process should be used.

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How are state legislatures responding to the Electoral Count Reform Act?

electoral college

The Electoral Count Reform Act tweaked a number of aspects of presidential elections. Last December, I noted that state legislatures needed to reexamine their election codes. And many state legislatures have noticed and are responding appropriately.

Some responses are smaller. North Dakota, for instance, enacted HB 1192, which cleans up a few provisions of the state election code, and it clarifies that electors meet the first “Tuesday after the second Wednesday in December,” instead of the first “Monday,” as the old Electoral Count Act required (and as state law had required in kind).

Likewise, Kansas enacted HB 2087, which swaps Tuesday for Monday in state code. It also added, “Any contest to the election of presidential electors shall be made in accordance with the provisions of 3 U.S.C. § 5.” That’s meant (a bit inartfully) to instruct state courts that contests must conclude at least six days before the time fixed for meeting of electors, as a duty is placed on the executive to issue a certificate of ascertainment.

Indiana’s HB 1135 was enacted, updates a handful of dates in the election code, and swaps Tuesday for Monday and added another requirement from the Electoral Count Reform Act, that certificates of presidential electors have a “security feature” as required by the ECRA.

Nevada, likewise, is considering a bill, SB60, that requires that courts considering election contest “must determine the results of the contest before the deadline to issue and submit the certificate of ascertainment pursuant to 3 U.S.C. § 5. Election contests shall take precedence over all regular business of the court in order that results of elections shall be determined as soon as practicable.”

California is considering AB 507, which also swaps Tuesday for Monday. It also adds a provision empowering the Governor to change the meeting place of electors in the event of a disaster–a wise idea in the even the Capitol where the electors are supposed to meet is, say, on fire.

I’m sure there are other bills out there, or laws enacted. So far, nothing particularly contentious. But state legislatures are certainly, and importantly, responding in many small ways to the ECRA.

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Settlement reached in 2022 Arizona voter intimidation lawsuit

absentee ballots

Last fall, I highlighted two lawsuits in Arizona, one that failed for its overbreadth and one that ultimately succeeded. The successful case was brought by the League of Women Voters, and they secured a temporary restraining order as to voter intimidation occurring around drop boxes and other related activity. (The other lawsuit had an appeal to the Ninth Circuit that was ultimately abandoned.)

The League of Women Voters has now announced a settlement in its case:

The parties have now settled the case. In so doing, the League and Ms. Jennings agreed to publicly condemn intimidation of any kind in connection with the exercise of the right to vote. The terms and obligations of the settlement are confidential.

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Hessick, Morse, and Pinnell on Electing Prosecutors

campaign finance, campaigns

Carissa Byrne Hessick, Michael Morse, and Nathan Pinnell, Donating to the District Attorney (forthcoming, UC Davis Law Review):

The United States is the only country that elects its local prosecutors. In theory, these local elections could facilitate local control of criminal justice policy. But the academic literature assumes that, in practice, prosecutor elections fail to live up to that promise. This Article complicates that conventional wisdom with a new, national study of campaign contributions in prosecutor elections. The study offers a more complete empirical account of prosecutor accountability by analyzing contributions to local candidates as well as their election results. It details the amount of money in local prosecutor elections, including from interest groups, and the relationship between candidate fundraising and success. The stark differences across the country underscore that the more than two thousand local prosecutors are not a monolith; some offices are best understood as political, with contested elections and significant amounts of campaigning, while most appear more bureaucratic, with neither. Recognizing this distinction suggests that accountability efforts require a multifaceted approach. If some prosecutors are more akin to bureaucrats, reformers should not limit themselves to recruiting electoral challengers; they should also consider layering bureaucratic accountability on top of political accountability. Further, at least for now, money in prosecutor politics has served as a moderating, rather than punitive, force.

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Muller on Ballot Access

ballot access

Derek T. Muller, Ballot Access (forthcoming, Oxford Handbook of American Election Law):

Voters use ballots to choose their preferred candidates or to express support or opposition to ballot initiatives and referenda. There are many and diverse rules for how these people or items appear on the ballot in the first place—who can obtain “ballot access.” Once states began printing ballots in the late nineteenth century, they began to develop standards for which candidates, political parties, or ballot measures could appear on the ballot. States may require prospective candidates to circulate petitions and secure a number of signatures from voters to demonstrate support before their names could appear on the ballot. States set deadlines for candidates to circulate those petitions or to file for candidacy. Or states may limit the candidates who may appear on the general election ballot to those who meet a threshold level of votes in an earlier round of voting.

In the middle of the twentieth century, the United States Supreme Court became increasing interested in establishing rules for federal courts to evaluate states’ ballot access rules. On the one hand, the state has an interest in preventing an overcrowded ballot and ensuring that only serious candidates appear on it. On the other hand, the state’s rules may be unduly restrictive, which may reduce voters’ choices or entrench one or both major political parties in office. The Court has developed a balancing test to determine whether the rules are too onerous or whether the state has adequately justified its interest. These fact-intensive balancing tests have left federal courts with the task of figuring out these context-specific questions.

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Weinstein-Tull on Federal Election Administration

election administration, NVRA (motor voter)

Justin Weinstein-Tull, Federal Election Administration Laws (forthcoming, Oxford Handbook of American Election Law):

Although states and local governments administer elections in the United States, the federal government has also enacted laws that regulate election administration. Most prominent among these laws are the National Voter Registration Act, the Uniformed and Overseas Citizens Absentee Voting Act, and the Help America Vote Act. With its recent attempt to enact the For the People Act, Congress has demonstrated an interest in more aggressively regulating election administration.

This chapter discusses both the promise and the challenges of federal election administration laws. It discusses the good that these laws can accomplish, but also the difficulties enforcing them. It explains how federal election administration laws fit into voting rights scholarship, and suggests avenues for future research. Building on these insights, it concludes by suggesting novel ways that the federal government could effectively administer elections while retaining the benefits of local election administration.

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Elected officials aren’t always the biggest fans of ballot measures

ballot access, voter initiatives

Some recent actions of legislatures and other elected officials stepping into the thick of how ballot measures are proposed and adopted….

In the Wall Street Journal, “State Lawmakers Take Aim at Voter-Led Ballot Measures,” which begins, “Lawmakers in Republican-led states are backing measures to make it harder for voters to amend state constitutions, as partisan fights play out over abortion access and other issues.” (Earlier this week, I highlighted the disputes in Ohio here and here.)

From the Detroit News a few weeks ago, “Gov. Whitmer signs bills to repeal right to work, restore prevailing wage,” which includes the tidbit, “Whitmer signed the bills on Friday even though they included appropriations that will protect them from facing referendum votes. Under the Michigan Constitution, bills with spending in them cannot be subjected to referenda.”

Daniel Borenstein in the Mercury News argues, “Californians will face longer ballots next year as state lawmakers keep undermining democratic principles by putting their thumbs on the election scale. The ballot explanations for costly state and local measures, which should be informative but neutral, continue to be turned into opportunities for political propaganda.”

And from CBS Miami, “Florida marijuana proposal goes to state’s Supreme Court,” which opens, “Attorney General Ashley Moody has formally submitted a proposed recreational-marijuana ballot initiative to the Florida Supreme Court and signaled she will argue that the proposal doesn’t meet legal requirements to go before voters in 2024.”

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DC Circuit affirms dismissal of challenge to FEC’s decision to accept paperwork for Trump’s presidential candidacy

campaign finance, federal election commission

Late last year, I highlighted a federal court’s decision to throw out a challenge to the FEC accepting paperwork for Donald Trump’s presidential candidacy on the ground that he was ineligible to serve. Last month, in an unpublished per curiam opinion, a panel of the the District of Columbia Circuit affirmed dismissal: “appellant has not shown that he has Article III standing to pursue Count Two of his complaint. See generally Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).” As I wrote last year, challenges to Trump’s candidacy won’t take place through FEC candidacy lawsuits, and we’re slowly seeing that play out in the courts now.

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Green on Adversarial Election Administration

election administration

Rebecca Green, Adversarial Election Administration (forthcoming North Carolina Law Review):

As Americans, we are conditioned to believe that involving partisans in the administration of elections is inherently problematic. Understandably. The United States is a major outlier; virtually every other developed democracy mandates nonpartisan election administration. Whether on the left or right— especially since the 2020 election—we are barraged with headlines about actual or feared partisanship on the part of those who run our elections. What this narrative misses, however, is a crucial and underrecognized fact: by design, partisans have always played central roles at every level of U.S. election administration. What is more, partisans are baked into the U.S. election process for lofty reasons. Placing rival partisans in the election process increases transparency, enhances accountability, and (in theory) improves public trust in outcomes. Rival partisans populate election administration for the same reason we rely on the adversarial process in court: adversarialism leads to outcomes in which members of the public are more likely to abide. As with the justice system, adversarial election administration is not a perfect formula. But the better we understand the mechanisms of rival partisanship in election administration, the better our chances of improving them. This Article takes on this task, examining the history of adversarial election administration in the United States, describing how adversarial actors function in modern U.S. elections, and suggesting how states might better leverage adversarial election administration to bolster transparency, boost accountability, and secure election outcomes voters can trust.

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Codrington on Voting and State Constitutions

Constitutional Right to Vote

Wilfred U. Codrington III, Voting Under State Constitutions (forthcoming, Oxford Handbook of American Election Law):

Unlike their federal counterpart, state constitutions confer the right to vote in plain and affirmative terms. State charters also contain unique provisions that, among other things, regulate the redistricting process and set out the terms for political participation, including direct citizen lawmaking. And critically, state constitutions interact with the federal Constitution, which limits them in meaningful respects, while also governing the local administration of elections. Indeed, every political contest has aspects that are governed by state constitutions, making them an integral, yet underappreciated, source of American election law. This chapter underscores these and other crucial points by examining several dimensions of voting under state constitutions. It first lays out a broad history of voting under state charters. Then it provides a general overview of key structural components of state constitutions that govern the right to vote, followed by a brief assessment of two particularly important doctrinal matters explained in the context of particularly contested issues. Finally, the chapter closes by raising a few topics that would benefit from additional research and exploration to advance the scholarship in this ever-developing area of election law.

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“Georgia plans security checks of voting equipment before ’24 elections”

election administration

Atlanta Journal-Constitution:

Voting equipment across Georgia will undergo security “health checks” ahead of the 2024 presidential election, including efforts to verify that software hasn’t been altered, according to a plan announced Friday by Secretary of State Brad Raffensperger.

Voting touchscreens, ballot scanners, and election management systems will be tested to ensure they’re operating correctly and haven’t been tampered with.

The decision to examine Georgia’s voting equipment follows revelations last year that supporters of then-President Donald Trump paid tech experts to copy the state’s election software in Coffee County in early 2021. Raffensperger’s office replaced Coffee County’s voting equipment last fall.

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