All posts by Derek Muller

“The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act”

The Case Western Reserve Law Review has just published my article, “The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act.” Here is the abstract:

When Congress convenes under the Twelfth Amendment and the votes of presidential electors are counted, there are three different responsibilities to consider. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes?

This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. And that means the chamber—here, the joint session—can constrain the President of the Senate as presiding officer. Congress did exactly that when it chose to further constrain the discretion of the President of the Senate in the Electoral Count Reform Act of 2022. Second, Congress counts electoral votes. The evidence in the text and structure of the Constitution and congressional practice before the ratification of the Twelfth Amendment supports this interpretation. Third, the power to resolve disputes runs with the power to count. And that means Congress also has the power to resolve disputes about presidential electors.

Separating these responsibilities is crucial because it can be too easy to conflate some of these activities, which in turn elides over the distinctions in responsibilities. When the presiding officer acts, she does so not to count votes, but to preside over the joint session and help it proceed according to the rules and precedents set by Congress. The actions she takes may resemble the substantive act of counting. But close scrutiny of the record reflects that the President of the Senate does not count, and has never counted, votes. That is because the power to count resides in Congress, where the Twelfth Amendment lodges that power.

This Essay begins by examining the text of Article II, specifically its Counting Clause. It argues that a change in verb voice in the clause removes the President of the Senate from the role of counting electoral votes. Part II then moves to the original public meaning of the Twelfth Amendment through an interpretation of congressional practices. Majorities of both houses of Congress in 1800 believed Congress had the substantive power to resolve disputes over electoral votes. These details give an important gloss to the Twelfth Amendment, which was ratified in 1804. Part III examines the structure of the Constitution. Crucially, the President of the Senate, not the Vice President, bears the responsibilities in the Twelfth Amendment. While these two terms are often used interchangeably, they are not interchangeable for purposes of understanding the separation of powers and the role of Congress. Part IV concludes with an examination of the newly enacted Electoral Count Reform Act. It identifies the major elements of the Act and it focuses on the Act’s decision to expressly narrow the responsibilities of the President of the Senate in the joint session where Congress counts electoral votes. Congress’s decision to define the role of the presiding officer is squarely within its constitutional authority.

The piece responds to some arguments made by Professors John Yoo and Robert Delahunty in the Case Western Reserve Law Review; and concerns raised by Professors Gary Lawson and Jack Beerman. It engages with recent work by Professor Joel Goldstein, and others. Portions are drawn from blogging here and from my Senate testimony regarding the Electoral Count Reform Act. Professor Jonathan Adler weighs in over at Volokh here.

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Near-unanimous Wisconsin Senate advances important bill responding to Electoral Count Reform Act

In December 2022, I blogged about how state legislatures needed to take a look at how their existing election codes fit with the Electoral Count Reform Act. In particular, “States should be working backwards from that deadline to determine if their canvass, audit, recount, and contest procedures are able to take place in this tight window.” I tracked some changes in May 2023 as they were pending in states.

Today, the Wisconsin Senate, by a 31-1 vote, passed a major overhaul of how its canvassing, certification, and recount procedures happen, SB 852. Below the jump are the provisions to show how much tighter the process will be–no more languishing recounts or challenges as the state experienced in 2016 and 2020 (if the bill is ultimately signed into law). It’s greatly encouraging to see bipartisan consensus to expedite election procedures in response to the ECRA, especially in a “swing state” like Wisconsin.

Continue reading Near-unanimous Wisconsin Senate advances important bill responding to Electoral Count Reform Act
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On January 6, 2025

When Congress convenes to count electoral votes on January 6, 2025, it will face intense pressure. If the Supreme Court rejects Colorado’s effort to bar Donald Trump from the primary ballot, its path seems likely to leave the door open for Congress to act, in some fashion at some time. Rick H. has valiantly argued here and elsewhere that courts should foreclose the possibility of future meddling, however they choose to do so; and it’s the gist of the Foley-Ginsberg-Hasen brief in Trump v. Anderson, too.

But. Supposing the Court does not close the door.

Continue reading On January 6, 2025
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Trump v. Anderson v. Celebrezze

Professor Marty Lederman has significantly expanded his analysis of the Anderson v. Celebrezze issue in Trump v. Anderson over at Balkinization, here. As ELB readers may recall, I flagged the Anderson issue back in October, and my briefing in this case has offered some hesitant suggestions to think about the framing (without coming down on one side or another). Professor Lederman offers a much more fulsome defense of this legal hook as the best way to decide the case, which results in reversal of the Colorado Supreme Court. (Indeed, at oral argument yesterday, Justice Kagan read from Anderson v. Celebrezze on the bench.) He points to the burdens on Colorado’s voters, and on the state and national parties, for the removal of a candidate’s name from the ballot. That is in stark contrast, he notes, to candidates who are indisputably ineligible.

He also makes this point on the Colorado Secretary of State’s justifications of the state’s interest:

Colorado Secretary of State Griswold, in her brief, flags two additional possible state objectives.  First, she writes (p.26) that an exclusion of Trump from the ballot “ensures voters are not disenfranchised by voting for candidates who are ineligible for office,” which “allows voters to accurately weigh their choices before casting a vote.”  This rationale is problematic for at least three reasons.  First, it’s not a justification that the decision-maker, the Colorado Supreme Court, relied upon.  Second, it assumes that Trump is ineligible just because the Colorado Supreme Court decided that he is—which presumes the answer to the question that other actors would have to eventually determine if Trump were to actually be prevented from taking the oath of office.  Third, if the state were worried that its voters will be ignorant of the mere possibility that other actors will (as Colorado cannot) prevent Trump from taking office or will remove him from office, it can address that problem by educating voters about the possibility rather than by paternalistically preventing them from choosing to vote for Trump with full knowledge of the risks.

Secretary Griswold also writes (id.) that “perhaps most importantly,” such a ballot exclusion “avoids the turmoil of an ineligible candidate winning an election for an office that the candidate is constitutionally barred from holding.”  Again, this isn’t a justification that the Colorado Supreme Court relied upon.  Moreover, it’s hard to see how Trump’s exclusion from the ballot would serve to “avoid” any turmoil of the sort Griswold describes, because the Republican Party will nominate Trump anyway, and because whether he’s prevented from entering office will depend on the decisions of others (voters, electors, Congress, etc.)—in other words, Colorado’s actions here won’t do much to affect that prospect, whereas they will cause serious harms to the fundamental constitutional rights of Trump supporters and the Republican Party (and possibly cause turmoil of its own making, as well).

The Court seemed to be grappling with these concepts, and in particular the second point to the first point raised here: that is, “it assumes that Trump is ineligible just because the Colorado Supreme Court decided that he is—which presumes the answer to the question that other actors would have to eventually determine if Trump were to actually be prevented from taking the oath of office.” The Secretary tended to frame the question as to whether the state has the power to exclude an insurrectionist from the ballot; but the better framing is whether the state has the power to ascertain whether the candidate is an insurrectionist, and, if so, keep the candidate off the ballot. Relatedly, the statements at oral argument that federalism “messiness” (probably one of the worst words the Secretary could have used at oral argument) means that states can continue to do their own things until some other federal actor steps in–or until the Supreme Court is asked to, and tasked with, resolving factual and legal disputes among states, suggests the state interest in being the first mover is much lower than in other cases (e.g., undisputed eligibility).

The whole post is worth reading after yesterday’s argument, and it’s another reminder that this case might look quite different if litigated through an election law lens than the Section 3 framing it’s received for months.

One more wrinkle, and this was an argument floated repeatedly by Justice Barrett at oral argument that Professor Lederman sharply notes:

It’s entirely possible, I suppose, that the Court might announce a broader, structural “federalism” limitation on the power of states to use their ballot regulations to exclude some or all federal candidates on eligibility grounds (or perhaps only on Section 3 grounds?), and in so doing invoke Anderson v. Celebrezze and other election law cases without necessarily framing the decision specifically in First Amendment/voting rights terms.  Justice Barrett, in particular, hinted at such federalism constraints by invoking analogies to M’Clung v. Silliman (1821) (state courts can’t issue writs of mandamus against federal officials) and Tarble’s Case (1871) (a state judge lacks jurisdiction to issue a writ of habeas corpus for the discharge of a person held by a federal official).  As I wrote in this post, citing M’Clung, it’s common ground that a state lacks legal authority to actually enjoin a disqualified federal official from holding office, or to remove him or her from such office; that a state court couldn’t issue an injunction to prohibit someone from taking federal office or to order that person to vacate the office (or order another federal actor to remove the allegedly ineligible person); and that state police can’t arrest someone purporting to hold a federal office (e.g., a Senator, a Representative in the House, a civil or military officer in the federal executive branch, a federal judge, or … a President or Vice-President) on the ground that the state has determined that that person is acting in derogation of Section 3 or some other constitutional limitation.  The Court might conceivably hold that a state also can’t accomplish similar results by indirection by the simple expedient of excluding a potential federal officer from a ballot for a federal election.

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Some thoughts on state power to conduct presidential primaries (and why the Moore v. Harper claim may really be legally meritless)

On the heels of some arguments raised by Marty Lederman and challenged by Richard Bernstein, I wanted to weigh in on Professor Lederman’s side–and in doing so, turn to agree with Mr. Bernstein’s sharp observation the Moore v. Harper issue of the Legislature Thereof Clause is likely legally meritless and shouldn’t receive any real attention from the Supreme Court.

Continue reading Some thoughts on state power to conduct presidential primaries (and why the Moore v. Harper claim may really be legally meritless)
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Did the Colorado Secretary of State help revitalize the Moore v. Harper issue ahead of the Trump v. Anderson oral argument?

In my recent rundown of arguments raised in Trump v. Anderson, I noted that the Legislature Thereof Clause argument–that the state court in Colorado botched the interpretation of state law so badly that it mangled the legislature’s preferences (an open suggestion after Moore v. Harper)–seemed the least likely ground for the Supreme Court’s consideration. I noted Trump’s brief is internally inconsistent on this point: while Part V of Trump’s brief is dedicated to the Legislature Thereof Clause, footnote 2 argues, “A ruling that reverses the Colorado Supreme Court while remaining agnostic on President Trump’s eligibility under section 3 will only delay the ballot-disqualification fight, and there is no shortage of legislators determined to use section 3 as a cudgel to bar President Trump from the general-election ballot or from taking office if this Court leaves any wiggle room for them to do so.” (If that’s the strategy, it’s not clear why Trump even included Part V in his brief.)

But the Colorado Secretary of State may have helped revitalize the issue. In a motion for divided oral argument, the Secretary argued, “Among the issues Petitioner Trump presents in his brief are (1) whether Section 3 of the 14th Amendment precludes Colorado from excluding unqualified candidates from its presidential primary ballot and (2) whether the Colorado Supreme Court violated the Electors Clause, and (3) whether this Court should defer to the Colorado Supreme Court’s interpretation of Colorado’s Election Code. These issues implicate Colorado’s—and indeed many states’—specific state law procedures for determining a presidential candidate’s eligibility to be placed on the state’s presidential primary ballot.”

The Supreme Court granted the motion to enlarge and divide oral argument. In my judgment, this is likely good news for Trump.

First, the Secretary specifically wants to focus on (1), about this election law-related component of the proceedings. That, as I mentioned in my recent rundown, is likely Trump’s best chance of success (a prediction sure to be go wrong, of course!).

Second, the Secretary specifically wants to focus on (2) and (3), the issues after Moore v. Harper about when state courts go “too far” construing state law. I thought this would be a poor ground for reversal, but now the Secretary is specifically asking for extra time to address the issue, and the Court has agreed. It sets up one of the best opportunities to expand the scope of what the Court meant in Part V of Moore v. Harper (to the chagrin of many amici).

Continue reading Did the Colorado Secretary of State help revitalize the Moore v. Harper issue ahead of the Trump v. Anderson oral argument?
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Trump v. Anderson: the election law case that wasn’t (but might be)

I have long treated Trump v. Anderson (and related cases) as an election law case first, and as a separate substantive constitutional law (or Section 3) case second. I’ve long had this view on these qualifications cases, stretching back a decade, when I was looking at the natural born citizen cases with Barack Obama, John McCain, and Ted Cruz. There is no question that these disputes are about ballot access. And Trump v. Anderson has the potential to be the most significant ballot access case in over 30 years.

That said, it’s been astonishing, to me, at least, that we have seen very little effort for this case to be litigated primarily as an election law case. (For instance, we’ve seen essentially no conversation about the Anderson-Burdick test here.) But it seems increasingly likely, to me, that if the Supreme Court rules in Trump’s favor (and by if, the likelihood seems to be declining), it will be on an election law ground related to ballot access rather than a substantive Section 3 analysis.

Continue reading Trump v. Anderson: the election law case that wasn’t (but might be)
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“Big 2024 Presidential Election Changes Are Leaving Voters Baffled”

A striking piece in today’s Wall Street Journal:

Iowa Republicans on Monday will caucus to choose a presidential candidate, but Democrats will start to vote by mail and wait weeks for results. In New Hampshire the following week, both parties will cast primary ballots, but the Democrats’ votes will be purely symbolic. 

And then in early February, Nevada Republicans can vote in two contests: a caucus without all the GOP candidates, and a primary where results won’t count toward the nomination.

For that confusion, voters can thank allies of President Biden and former President Donald Trump, who have pushed for changes to the calendar to boost their candidates’ nomination prospects and make it harder for challengers. 

For some voters, these changes are undermining confidence in the voting process as the integrity of U.S. elections is under attack. Voters are more likely to skip contests where the rules are confusing or their votes are only symbolic. 

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NRSC brief relies on U.S. Term Limits to argue that judging Trump’s qualifications today is an unconstitutional additional qualification

This amicus brief by the NRSC in the Trump Colorado ballot access case presents a very plausible path forward for the Supreme Court–but not one without its own challenges. From the brief’s opening:

Continue reading NRSC brief relies on U.S. Term Limits to argue that judging Trump’s qualifications today is an unconstitutional additional qualification
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BREAKING: by 4-3 vote, Colorado Supreme Court bars Trump from primary ballot

The Colorado Supreme Court, in a 4-3 decision, has issued its decision in Anderson v. Griswold, here. (Disclosure: I filed an amicus brief in support of neither party in the case.)

From the opinion:

In this appeal from a district court proceeding under the Colorado Election Code, the supreme court considers whether former President Donald J. Trump may appear on the Colorado Republican presidential primary ballot in 2024. A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution. Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot. The court stays its ruling until January 4, 2024, subject to any further appellate proceedings.

If review is sought in the Supreme Court before the stay expires on January 4, 2024, then the stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court.

(The trial court had concluded it had jurisdiction and that Trump engaged in insurrection under Section 3, but that he had not taken an oath that subjected him to Section 3 and that the office of the president was not among the offices barred under Section 3.)

This is a major and extraordinary holding from a state supreme court. Never in history has a presidential candidate been excluded from the ballot under Section 3 of the Fourteenth Amendment. United States Supreme Court review seems inevitable, and it exerts major pressure on the Court. Even inaction would functionally exclude him from not just Colorado but perhaps other states. (UPDATE: Inaction as in cert denial by January 4. If the Court holds the petition until then, he will appear on the ballot–more on that below.) And granting cert requires the Court to step into the thorniest of political thickets. There are a dozen ways the Court could go. And there is no question this is a big, big deal. State law requires the Secretary certify names by January 5, 2024, and while it’s possible to bump beyond that, practical ballot printing deadlines will quickly approach, and the holidays mean any review will be more truncated.

Upon reflection, there are several things that come to mind. First, the Colorado Supreme Court’s timing remedy allows the United States Supreme Court an out, if it wants it, although it’s far from ideal. If the Court just sits on a petition for certiorari until January 4, Trump’s name appears on the ballot, and the Court then might conclude to deny cert because the case now presents a poor vehicle (i.e., the primary at issue has passed and the jurisdictional hook in the case is only for a primary election, not a general). Lots of uncertainty.

Second, the decision may embolden state courts or secretaries of state to exclude Trump the ballot. I don’t mean “embolden” as a pejorative–I simply mean that Colorado is the first mover, and no other political actor has to be the first mover. Relatedly, other jurisdictions have a blueprint of persuasive reasoning to rely upon–and, perhaps, a doctrine that could have a preclusive effect in other jurisdictions (a point Professor Steve Sachs raised).

Third, there are multiple ways Trump can lose, not just one (i.e., affirming the Colorado Supreme Court’s holding on Section 3 of the Fourteenth Amendment). One might be for the Supreme Court to approve the exclusion because this is a presidential primary and, consistent with cases like La Follette, the national party can ignore what the state does, or the state party can hold a caucus or some other delegate-selection process without a state-run primary. There’s tremendous uncertainty here.

Fourth, there is going to be a significant and uncertain political cost to Trump, in Colorado and beyond. Even temporarily being kept off the ballot has negative effects with voters. Do they want to risk voting for a candidate who’s been declared by a court to be ineligible? I think back to a recent dust up in Iowa in 2022, when a Senate candidate (and openly the front-runner) was barred from the ballot, briefly, for lacking enough signatures, only to have the decision reversed by the state supreme court days later. She then lost the primary to an upstart candidate who gained momentum those last six weeks as the campaign was seen in disarray and something of a risk. Will voters respond indignantly, belligerently, insisting they’ll vote for the candidate despite what a court says? Or will a number of voters wonder if they are throwing their votes away and choose to vote for someone else to have some influence in the process? It all depends, of course, on how other states approach it and how voters perceive the risk.

What tremendous uncertainty in the weeks ahead.

This post has been updated.

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German Constitutional Court decision on state subsidies to political parties

Sam Issacharoff passes along this interesting January ruling from the German Constitutional Court. It found unconstitutional an increase in state subsidies to political parties on the grounds that the parties had an obligation to prove commitment from their constituents.  The hear of the holding:

The challenged provision does not satisfy the constitutional requirements for state financing of political parties. It violates the principle that political parties be sufficiently free from state interference because the legislator did not sufficiently substantiate during the legislative process that the parties’ need for additional funding that could not be met by their own funds necessitated an almost EUR 25 million increase in the absolute limit.

The case addresses a growing European concern that political parties living off of state funding become a bureaucratic extension of the state, rather than independent political organizations. The opinion is Parteienfinanzierung – Absolute Obergrenze 2 BvF 2/18 (24 January 2023).  The English summary and translation is available here.

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