All posts by Derek Muller

What should happen to 2020’s renegade presidential electors?

electoral college

The Select Committee to Investigate the January 6th Attack on the Capitol has been digging into the renegade electoral votes submitted by some Republicans in some states that President Joe Biden carried in 2020. POLITICO links to some PDFs of the purported certificates, and FOIAs elsewhere have revealed more. No legislature attempted to send a competing set of electors, and Vice President Mike Pence never introduced them to Congress (nor did anyone in Congress request them). But some Republicans cast votes purporting to support President Donald Trump and Vice President Mike Pence in their states, despite the fact that the Democratic slates of electors were certified as the winners. Those gatherings then sent certificates to Congress.

I’ll get to the lawfulness of even behaving this way in a moment, but there are some significant problems with the certificates apart from that. The Arizona electors met on December 7, not December 14, the date Congress set for prescribed electors to meet. The Michigan electors falsely stated they met “in” the Capitol (which state law requires them to do), when they were excluded from the building.

It’s also telling to see which electors didn’t show. The [son of] late former Senator Johnny Isakson didn’t attend the rogue gathering in Georgia and was replaced. [UPDATE: The Washington Post reports that it is his son, who shares a name.] Neither did former Michigan Secretary of State Terri Lynn Land. The most prominent Republicans, in other words, accepted the certified outcome of the election and didn’t attempt to attend the renegade gatherings.

Is what the electors did illegal? It’s (unfortunately) complicated by Hawaii in 1960.

Continue reading What should happen to 2020’s renegade presidential electors? →
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Can states exclude from the ballot congressional candidates they deem lack the qualifications for office?

election administration

Some private plaintiffs have sued to try to exclude Representative Madison Cawthorn from the North Carolina congressional ballot on the grounds that he engaged in “engaged in insurrection or rebellion,” which disqualifies him from office under the Fourteenth Amendment. As the North Carolina State Board of Elections prepares to hear the challenge in short order, I’m skeptical the state has the power to exclude congressional candidates from the ballot.

I wrote earlier about excluding presidential candidates from the ballot on the basis that they lacked the qualifications for federal office. I believe states may, but not must, exclude candidates. The state legislature’s power to “direct” the “manner” of appointing electors, I think, extends to some qualifications determinations. Many states don’t have rules like this, and many ineligible candidates have appeared on the ballot, as that post detailed. Nevertheless, I think it’s within the state’s power to exclude, if it had a statute to that effect.

The same is not true, in my judgment, for congressional candidates. I detail the reasons for this difference in Scrutinizing Federal Electoral Qualifications. As the Constitution provides, “Each House shall be the judge of the elections, returns and qualifications of its own members . . . .” There are instances where Congress’s judgment of qualifications–was a candidate an “inhabitant” of the state or a mere “transient,” how should Congress handle an underage candidate who will come of age after the congressional term starts, etc.–may differ from how a state or a court might determine them. And it is the right of the people to choose their representatives unimpeded by ex ante state determinations–even the right to choose someone the people know or suspect is not qualified for office. I draw a line from Roudebush v. Hartke, a 1972 Supreme Court case emphasizing that recounts in a state were okay, as long as they did not thwart Congress’s role in being the “judge” of its elections at the end of the day. A state’s determination that a candidate is not qualified thwarts that role.

While states have the power over the “manner” of congressional elections, that power does not extend to adding qualifications for office, or the related power of adjudicating qualifications. I make this argument in Weaponizing the Ballot. A state can develop rules over the mechanics of appearing on the ballot, including threshold levels of support, but cannot extend to substantive evaluation of candidates.

This seems strange, in a sense. If my argument holds, it means flagrantly ineligible candidates–non-citizens, 15-year-olds, and so on–appear on the ballot and can “win” an election. But it’s happened before, and it’s not the state’s place to exclude such candidates. It’s left for the people to choose their candidates, and for Congress to judge whether those candidates are qualified. I made this claim when challenges to Senator Mary Landrieu’s inhabitancy floated up several years ago (although that case is also different, as you only have to be an inhabitant “when elected,” and early ballot access determinations are even weaker).

Two other details to consider. First, the Constitution provides, “Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.” There have been no efforts in Congress to expel its own sitting members on this ground (despite a successful effort to impeach former President Trump after he left office). This is not really relevant to the analysis above, but an interesting question about the power of Congress that has not been used but now is sought to be enforced by private litigants.

Second, the most plausible way forward is the for the NCSBE to construe its jurisdiction narrowly under the enabling statute. Its jurisdiction extends to evaluating the qualifications of a “candidate,” which means “A person having filed a notice of candidacy under the appropriate statute for any elective office in this State.” (Emphasis added.) It’s plausible to read this statute to exclude federal offices. A related provision explains, “Grounds for filing a challenge are that the candidate does not meet the constitutional or statutory qualifications for the office, including residency.” (Emphasis added.) “Residency” is not a qualification for federal office (it’s inhabitancy for Congress), and it’s been used for, among other things, county sheriff candidates in North Carolina. Again, an emphasis that the scope was intended for state candidates, not federal.

That’s not to say it’s not plausible to read the jurisdictional grant more broadly. “Including residency” doesn’t exclude federal grounds, I know. But it is to say that some complicated questions could be avoided if read narrowly.

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Can federal courts hear private litigants’ statewide partisan gerrymandering claims arising under the Freedom to Vote Act?

redistricting

In Rucho v. Common Cause (2019), the Supreme Court held, “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” The Court emphasized that state court or legislative solutions would remain available to reformers.

Congress is considering the Freedom to Vote Act (in some ways a “skinny” For the People Act), a bill that Senators Joe Manchin and Amy Klobuchar helped draw up. It did not survive a cloture motion in the Senate, and it appears dead unless the Senate alters the rules for the filibuster. There’s been increased chatter about the possibility of doing so, and it’s prompted me to look at some of the (many) provisions of the bill more closely.

The Freedom to Vote Act includes some specific criteria for congressional redistricting (not state or local offices). It bans mid-decade redistricting (Section 5002), it establishes a set of hierarchical criteria for redistricting (Section 5003), and it requires an “open and transparent” process (Section 5004).

A prohibition on partisan gerrymandering appears in Section 5003(c)(1): “A State may not use a redistricting plan to conduct an election that, when considered on a statewide basis, has been drawn with the intent or has the effect of materially favoring or disfavoring any political party.” (Emphasis added.)

The bill allows “[a]ny citizen of a State who is aggrieved by the failure of the State to meet the requirements of the Constitution or Federal law, including this title, with respect to the State’s congressional redistricting, may bring a civil action” in federal court, and partisan gerrymandering claims must be filed in the District of Columbia. (Section 5006(a)(2) & (4).)

Despite this express authorization for private litigation, could a federal court hear a case about a statewide partisan gerrymandering? I think the answer may be no, because of two other recent Supreme Court decisions: Gill v. Whitford (2018), and TransUnion LLC v. Ramirez (2021). Long thoughts below the jump.

Continue reading Can federal courts hear private litigants’ statewide partisan gerrymandering claims arising under the Freedom to Vote Act? →
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Ninth Circuit panel finds Arizona’s election-day deadline to cure mail-in ballots lacking signatures passes constitutional scrutiny

election administration

Mail-in ballots in Arizona must be returned with the voter’s signature on the outer envelope. If there is a missing signature, voters may correct it by submitting a signed replacement ballot by election day. A district court concluded that this was a “minimal” burden under the Anderson-Burdick framework but that Arizona had insufficient justifications for this deadline, and that signature cures should be allowed after Election Day.

In Arizona Democratic Party v. Hobbs, however, the Ninth Circuit, in a 2-1 panel decision, concluded that the district court erred. It found that the deadline was justified by the state’s rational interests in election administration.

Judge Susan Graber’s opinion emphasizes that Arizona has had such a law for nearly 100 years, that requiring a signature with an election-day deadline was a minimal burden, and that alleviating election officials’ burdens in the days after an election. The dissenting opinion penned by Judge A. Wallace Tashima, in contrast, pointed to the fact that Arizona allows mismatched signatures to be cured up to five days after an election, but that missing signatures must be cured by Election Day, and it went on to find that the law was not justified by any state interest. Judge Graber countered that there are materially different burdens on local election officials for curing mismatched ballots as opposed to ballots lacking a signature.

Many details to consider in the opinion: the nuances of election administration, the travails of Arizona law, and a conflict between the Arizona Secretary of State and the Arizona Attorney General in the interpretation of the election code.

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Supreme Court to consider whether North Carolina legislators can intervene to defend state’s voter ID law

legislation and legislatures, Supreme Court

The Supreme Court agreed to hear Berger v. North Carolina State Conference of the NAACP. SCOTUSblog’s page on the case is here. The NAACP challenged North Carolina’s voter identification law in federal court. Republican legislative leaders, doubtful that the Democratic attorney general would adequately represent the state’s interests, moved to intervene (which state law authorizes them to do). The district court rejected the motion to intervene, finding that the state’s interests were already adequately represented. A panel of the Fourth Circuit reversed, then the Fourth Circuit en banc reversed that panel decision and affirmed the district court.

As state legislatures (or legislators) and executives fight about the implementation or defense of election laws, this case is one to watch. Petitioners framed the question as “whether a state agent authorized by state law to defend the State’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant.” Respondents, in contrast, framed the question as “whether state officials must overcome a presumption of adequate representation to intervene as of right when they share the same ultimate objective as existing state defendants and those defendants are already adequately defending the challenged law.” It’s a seemingly-technical rule of which parties may participate in the case. But it could significantly affect how litigation plays out in the lower courts surrounding election law (and other) controversies in the future.

(For more, see Kimberly Strawbridge Robinson’s piece over at Bloomberg.)

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Will Laurence Tribe draft his own Eastman memo for January 6, 2025?

electoral college

Last month, The Atlantic published a piece with the title, “Kamala Harris Might Have to Stop the Steal.” That is, the vice president* may have to exercise some authority during the counting of electoral votes in 2025 in the joint session of Congress.

Support for this proposition comes from Professor Laurence Tribe:

Should Trump or his acolytes try to subvert the 2024 election, the last Democrat with any power to stop the steal—or at least try to—would be Harris. “She’s certainly going to have quite a job on her hands on January 6, 2025,” Laurence Tribe, a Harvard law professor and liberal constitutional scholar, told me. Nine months ago, Tribe and other Democrats praised Pence for interpreting his authority narrowly, but the next time around, they might ask Harris to wield the same gavel more forcefully.

. . .

Tribe told me that Eastman’s argument was “ludicrous,” but they did agree on one point: Every four years on January 6, the vice president is not powerless. “I don’t think we can argue that Kamala Harris has absolute authority,” Tribe said. “On the other hand, she is not simply a figurehead.” Harris’s principal role during the Joint Session, he said, could be to reject “ungrounded challenges” to state certifications. She may have other powers, he said, but he refused to discuss them with me. “I don’t want to lay out a complete road map for the other side, because I think sometimes they’re not as smart as they think they are,” he said.

. . .

Multiple lawyers I spoke with said that Harris’s role would likely be moot if Republicans wield majorities in 2025 because they could simply overrule any decision she tried to make. “The principal responsibility will always lie with the members of the two houses,” Eisen said. “If they chose to, they could fight the actions of the vice president.” Tribe, however, suggested that the law wasn’t that clear.

Tribe and John Eastman “agree,” in other words, that the vice president holds some authority. Both Eastman’s shorter memo and longer memo rely on unilateral vice presidential authority to, say, pick an alternative slate of electoral votes, to refuse to count electoral votes, or to delay counting electoral votes.

Eastman favorably cites Tribe in his memo, and it appears the feeling is mutual. Tribe argues that Harris is “not simply a figurehead,” despite what I or others have argued here and elsewhere.

The vice president’s authority must come from the Constitution or from some appropriate delegation from Congress pursuant to a statute. The Twelfth Amendment provides, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” The only vice presidential role explicitly provided, then, is to “open all the certificates.” The only other responsibility, counting of votes, is, as argued here and elsewhere, left to Congress.

As an interstitial matter, what else might the vice president do during that session? The Electoral Count Act gives some additional answers. The vice president, for example, gets to “announce the state of the vote” after the tellers count the votes. The vice president is instructed to “call for objections.”

Tribe suggests in this interview that the vice president’s power “could be to reject ‘ungrounded challenges’ to state certifications.” There is no such power in the Constitution, and there is no such power in the Electoral Count Act. A procedurally-valid objection goes to Congress, without debate, and there is no opportunity for anyone, the vice president or otherwise, to prejudge the substance (i.e., whether it is “grounded”). Here’s the ECA once again:

Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision

Upon the statement of a ground, in writing, given clearly and concisely, signed by one senator and one member of the House, the objection is a valid one for consideration of Congress. It happened that way in 1969, 2005, and 2021. As frivolous (as I believe) the objections in 2005 and 2021 were, Vice Presidents Dick Cheney and Mike Pence simply read from the script and allowed the debate to play out in Congress, with no prior adjudication of the merits.

Any early decision from the vice president improperly shortcuts this process in two ways. First, the vice president is prejudging the merits, which a matter left to Congress. Second, the ECA by its own terms requires the objections to be clear, concise, and made “without argument,” because the appropriate forum for examining the merits is left for the separation of the houses of Congress.

In short, Tribe’s argument, like Eastman’s, is inconsistent with both the Twelfth Amendment and the Electoral Count Act. It is hard to examine the potential “other powers” Tribe alludes to at this stage. (There are other interesting debates about Congress’s power, but that’s not at issue here, I think.)

But it is worth spending a little time trying to shut down any Eastman-Tribe gambit in advance of 2025 or any future election.

*While the Constitution says that the President of the Senate presides, we’ll operate under the assumption it’s the vice president, although this raises a number of other interesting inconsistencies if a Senator is presiding–it would seem strange, I think, that the one Senator can outvote the rest of the Congress in this scenario, and that this one Senator is chosen by some internal Senate rule. The presiding officer in 2025 may well be Chuck Grassley or Pat Leahy, among others. Congress might amend the ECA before then to alter who is formally presiding, as the Twelfth Amendment is silent on that point. But this is for another day….

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Ballot access rules for disqualified presidential candidates

election law and constitutional law, statutory interpretation

Ned’s post on Section 3 of the Fourteenth Amendment walks through challenges pertaining to former president Donald Trump’s eligibility. It’s a sound legal analysis (although I’m sure there are disputes among some as to the facts, and there’s much uncertain about the politics), but I wanted to build on one point he raises: “That way, if Trump is judicially ruled ineligible—becoming constitutionally equivalent to Obama—his name can be kept off the ballots in 2024, and no voter will waste a vote by casting a ballot for a constitutionally ineligible candidate.”

The ballot access rules are a separate and major complication for presidential candidates. Consider the following hurdles.

Let’s start with the presidential primaries, formally the selection of delegates to the national nominating convention. The Democratic Party has rules requiring that candidacy including “requirements set forth by the United States Constitution.” (Rule 13.K.) The Republican Party does not (although no state may bar voting for someone who is constitutionally eligible).

For caucuses, the rules are largely left to state parties to determine candidate eligibility. For primaries, states often defer to party determinations or have no express rules as to candidate qualifications. So it’s entirely possible that an otherwise-ineligible candidate secure a majority of the delegates heading into a nominating convention.

On the other side of the nominating convention are ballot access rules for presidential candidates. Some states will exclude ineligible candidates. Others will not–for instance, I chronicle ballot access for ineligible candidates in recent history, like 27-year-old Peta Lindsay or Nicaraguan national Roger Calero, each of whom appeared on the ballot in some states in recent years. And some states only test presidential candidate eligibility for age, citizenship, and residency–nothing else. I took a look at some such challenges in the 2016 election.

Add to that the complexity of presidential electors (some of whom are statutorily required to vote for the candidate they were pledged to support or who received a plurality of the statewide popular vote, or else they vacate their office). And add to that the challenges of Congress’s power to refuse to count electoral votes, which Ned alludes to (and which no one is excited to re-engage in 2025).

All that is to say, the issues Ned identifies are important qualifiers for disqualifying a presidential candidate. But there 51 separate ballot access rules that need to be navigated to see how it would play out.

There are two important caveats. The first is that the GOP might truncate the process by cutting out a nominee from its primary process. That seems unlikely no matter the circumstances–as a matter of the complexity of how states run their primaries and as a matter of the party apparatus making changes to its internal governance ahead of 2024. The second is that Ned’s proposal certainly could expedite litigation. In the absence of a statute to enforce Section 3, I imagine some will litigate on a state-by-state basis, during the primaries and again during the general election, to exclude Trump from the ballot. A statute would certainly simplify resolution of the matter (and might alter how the party behaves–the same, for instance, as if Barack Obama attempted to seek a third term, to Ned’s analogous disqualification rule).

But litigation, it seems, is inevitable whatever happens, and it’s only a question of how messy it looks.

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Latest statement on Eastman still relies on the unilateral power of the Vice President to ignore the Electoral Count Act

electoral college

It seems the Eastman controversy will never end…. But one should not bury the lede: this theory, too, relies on unilateral vice presidential power to ignore the Electoral Count Act.

Setting aside any narrative issues about what Eastman did or did not advocate, I want to pick apart just one item from the Claremont statement (although one could pick apart more).

It’s this line: “John advised the Vice President to accede to requests from state legislators to pause the proceedings of the Joint Session of Congress for 7 to 10 days, to give time to the state legislatures to assess whether the acknowledged illegal conduct by their state election officials had affected the results of the election.”

There are several problems:

(1) the ECA (if one agrees with its constitutionality) does not authorize the Vice President to “accede” to anything (the same language in Eastman’s recent defense), because Congress votes on all objections;

(2) state legislators may not file objections (or “requests”), because the only objections to be considered are those from a member of the House and a member of the Senate, who have done so in writing under the ECA;*

(3) objections must be resolved after two hours’ debate; and

(4) recesses may only occur pursuant to Section 16, no longer than beyond one day, and no recesses may occur five days after counting begins.

It is worth looking back at how Eastman articulated this scenario in his longer memo:

VP Pence determines that the ongoing election challenges must conclude before ballots can be counted, and adjourns the joint session of Congress, determining that the time restrictions in the Electoral County [sic] Act are contrary to his authority under the 12th Amendment and therefore void. Taking the cue, state legislatures convene, order a comprehensive audit/investigation of the election returns in their states, and then determine whether the slate of electors initially certified is valid, or whether the alternative slate of electors should be certified by the legislature, exercise authority it has directly from Article II and also from 3 U.S.C. § 2, which provides:

“His authority,” to emphasize, is the vice president’s.

There is much more to pick apart in this very short piece. But this process only works if the Vice President ignores the ECA–a process, as I’ve written here, not within the vice presidential power, but within Congress’s power. And it sounds like Congress is looking for ways to limit the role of the Vice President in the future.

*Relatedly, while Senator Ted Cruz purported to “object” to counting to Arizona’s electoral votes for a “10-day audit.” As I pointed out then, Cruz never drafted a statute to allow for such a mechanism, and the objection he filed simply objected to counting Arizona’s votes with no qualification of delay.

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Lawsuits challenge non-citizen voting in two Vermont cities

legislation and legislatures

Earlier this year, the Vermont legislature overrode the governor’s veto and enacted statutes authorizing the cities of Montpelier and Winooski to allow non-citizens to vote in local elections. (For more background, see National Review.)

The Republican National Committee is now leading a pair of lawsuits challenging the laws. The complaints in Ferry v. Montpelier and Weston v. Winooski identify Section 42 of the Vermont Constitution, which provides, in part, “Every person of the full age of eighteen years who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the following oath or affirmation, shall be entitled to all the privileges of a voter of this state . . . .”

Professor Peter Teachout at Vermont Law School has argued this provision does not extend to elections in municipalities. The complaints offer a different construction of state law, distinguishing the constitutional right to vote and the “local” elections that ran with property owners in the 19th century (which might have included non-citizens), a distinction that no longer exists in the contemporary era.

Non-citizen voting at the local level has been percolating in recent years, so these lawsuits are ones to watch.

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“Twenty-Third Amendment Problems Confronting District of Columbia Statehood”

Uncategorized

I have this piece over at the Harvard Journal of Law & Public Policy‘s new online supplement, Per Curiam. It tracks testimony I gave before the U.S. Senate Homeland Security & Governmental Affairs Committee this summer. It argues that the existing statehood bills pending in Congress fail to adequately address the Twenty-Third Amendment issue–potentially giving a handful of people (including the president and first family) three electoral votes. I’m presently on the less popular end of this legal discussion, so I respond to a few claims that a number of law professors have made (including some bloggers here!) about H.R. 51/S. 51. It may not move anywhere in the Senate in the near future, but I think it’s important to consider how to best fashion legislative solutions pending constitutional repeal.

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League of Women Voters amicus brief in New York State Rifle & Pistol Association v. Bruen

Supreme Court

The Supreme Court is set to hear a case involving gun rights and the Second Amendment this term, New York State Rifle & Pistol Association v. Bruen. Over at SCOTUSblog, you can see the briefs in the case. One jumped out at me this week, as it was unexpected (to me, at least!)–a brief from the League of Women Voters. Here’s the summary of the argument:

Continue reading League of Women Voters amicus brief in New York State Rifle & Pistol Association v. Bruen →
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On Luttig on Eastman and the Electoral Count Act

electoral college

Michael Luttig, a former federal judge, offers this thread that Rick helpfully links to. Luttig claims he advised that “the VP himself could [not] decide that the Electoral Count Act of 1887 is unconstitutional and accordingly submit the 2020 Presidential Election for decision only to the House of Representatives, instead of to both Houses of Congress, as provided in the Electoral Count Act”; and, furthermore, “I believe(d) the Supreme Court would have decided each of these issues had they been presented to the Court, which they undoubtedly would have been had the VP proceeded as outlined in the January 2 memorandum.”

There’s a legal gap in here that’s not obvious from the thread: does Luttig believe that the Electoral Count Act is constitutional? That is, does Congress have the power to count electoral votes?

In the Wall Street Journal in March, Luttig rejects the constitutionality of the Electoral Count Act. “No constitutional provision empowers Congress to resolve disputes over the validity of a state’s electoral slate—or for that matter addresses who is to resolve these disputes,” he writes. “Whether electors are validly chosen is a quintessentially legal determination, not a political one. When state legislatures select presidential electors, they exercise power vested in them by the U.S. Constitution, not by state law. As the power to say what federal law is rests with the federal judiciary, it is the federal courts that have the authority and the responsibility to resolve these disputes.” (I think that’s inaccurate as a matter of the original public understanding of the Twelfth Amendment, as I briefly lay out in my rebuttal to Eastman’s memo.)

In other words, Luttig and Eastman agree that the ECA is unconstitutional. But Luttig rejects the notion that the President of the Senate can “himself” reject its constitutionality. Instead, the matter should be sent to a federal court (including to determine the constitutionality of the ECA). Where Eastman sees Congress lacking authority and power residing in the President of the Senate, Luttig sees Congress lacking authority and power residing in the federal courts. (And had the question been kicked to the federal courts, presumably Luttig believes that the Supreme Court should have concluded that the ECA was unconstitutional.)

For my part, I think they’re both wrong, and the ECA is constitutional. And I do hope Congress will shore it up ahead of the 2024 election.

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“AZ Election Audit Undermines Protocols — and Confidence”

election administration

I have this piece over at RealClearPolitics today. It begins:

Confidence in elections is essential to democracy. Losing candidates and their supporters must believe that a free and fair election accurately reflects the preferences of the voters.

States have myriad post-election checks designed to ensure the accuracy of results, from the canvass (the official tally of votes) to recounts. Some of these processes are audits – but not like the audit we’re seeing in Arizona, which suggests a process designed to undermine the results rather than instill confidence in them. Fairness requires legislation in advance of crisis, not novel responses after a crisis.

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Rebutting some of the claims in the Eastman memo about Congress’s role in counting electoral votes

electoral college

On November 29, 2000, the Select Joint Committee on the Manner of Appointment of Presidential Electors, a group convened by the Florida legislature, gathered. It was the second day of hearings about how to handle the presidential election dispute unfolding in the state. And it considered what role, if any, the state legislature might play in resolving the dispute.

John Eastman testified before that committee. He made a number of important (and, I think, largely correct–at least, for purposes of what I’ll discuss in this post) assessments about how the Electoral Count Act works and Congress’s role in counting electoral votes. The ECA, Eastman explained, was “technical,” not “ambiguous,” but included “complicated” statutory provisions.

This Act, Eastman explained, is “how Congress is going to vote or count the votes that it receives.” Among other things, returns from a state “must be counted by Congress unless both the House and the Senate meeting separately concurrently reject that return.” Who acts? “It is Congress, both houses, operating separately.” “That gives to Congress the power to be the ultimate judge,” Eastman expounded. Problems of how to count multiple returns submitted to Congress arise “only if the two houses in Congress do not agree.” The ECA, Eastman noted, is “the mechanism by which Congress has set out for itself how it will govern its counting obligations.”

One might read the memorandum obtained by CNN, attributed to Eastman and drafted ahead of January 6, 2021 and the counting of electoral votes, and wonder whether these statements (“Eastman 2000”) were made by the same person.

Continue reading Rebutting some of the claims in the Eastman memo about Congress’s role in counting electoral votes →
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Federal court sends states’ “proof of citizenship” requirement back to EAC for reconsideration

Election Assistance Commission

In an underdiscussed opinion from last week, Judge Richard J. Leon in the District Court of the District of Columbia issued a decision in League of Women Voters v. Harrington (once League of Women Voters v. Newby). This longstanding dispute traces back to 2016, when then-Director Brian Newby approved Kansas’s, Georgia’s, and Alabama’s requests to modify the “Federal Form” for voter registration to include proof of citizenship instructions for their states. (The legacy of this dispute also goes back to Arizona v. Inter Tribal Council of Arizona, Inc., a Supreme Court decision back in 2013, on the EAC’s authority and proof-of-citizenship on the Federal Form.)

The court found that under the Administrative Procedure Act, Newby’s decision was “arbitrary and capricious.” The National Voter Registration Act requires that the instructions on the Federal Form are “necessary to enable [States] to assess the eligibility of [] applicant[s] and to administer voter registration and other parts of the election process.” The court found that Newby was “mistaken” in believing that he was not required to consider the “necessity” of the changes. Without any belief he needed to consider the matter, he acted improperly. There’s some detail discussion about some of the constitutional issues at play (what I described back in 2014 as the “play in the joints” of the Election Clauses), but it’s a short and readable opinion.

There are a series of Tenth Circuit cases on Kansas’s saga after Inter Tribal on this matter. But the case is now sent back to the EAC (five years after the original decision) to consider Georgia’s and Alabama’s requests pursuant to the NVRA (to the extent they continue to seek state-specific instructions).

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