All posts by Derek Muller

Amending the Electoral Count Act doesn’t concede that Trump was right about Pence’s role on January 6, 2021

I’ve seen occasional (and perhaps we’ll see them grow increasingly frequent) comments about proposals to amend the Electoral Count Act of 1887 make a similar argument. Amendment proposals (including the Electoral Count Reform Act) will expressly provide that the President of the Senate’s role is “ministerial.” Doesn’t that mean (some wonder) that President Trump had a point ahead of January 6, 2021: that Vice President Pence did in fact have some discretion to refuse to count electoral votes, and now Congress is scrambling to stop it in the future?

No, for three reasons.

First, proposals presented to President Trump and to Vice President Pence called for Pence to ignore the Electoral Count Act. They argued that the Act is unconstitutional and that the President of the Senate could simply ignore it. Those arguments rested on a different premise: that the President of the Senate, not Congress, counts electoral votes. (I trace, and reject, some of these arguments here and here.) And amending the Act really doesn’t change that.

Second, one can clarify ambiguities in a statute without conceding that the ambiguities should have been construed to grant the President of the Senate any power under the Act (and, again, see the first point about the actual arguments advanced ahead of January 6, 2021). Clarifying ambiguities provides important value: to prevent future confusion or attempts to exploit those ambiguities in ways inconsistent with the Act.

Third, others have suggested there are existing ambiguities inside the Electoral Count Act that they desire future Presidents of the Senate to exploit in the future. (For that, see my post here.) Cutting off the threat of future problems is an important component of ECA reform, and it’s addressing an issue different from the reactions to past experienced weaknesses in the law.

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Is there a political question issue lurking in Moore v. Harper?

Plenty of commentary and analysis over Moore v. Harper focuses on the meaning of the Legislature Thereof Clause tucked inside the Elections Clause. But one concept has received essentially zero examination: the political question doctrine. Some of the history of redistricting disputes and the Elections Clause touch on either the notion that review of issues arising under the Clause are left to Congress, not to the federal courts; or that there are no judicially-manageable standards for courts in patrolling the Elections Clause. I thought I’d take a look at those issues ahead of Moore.

Continue reading Is there a political question issue lurking in Moore v. Harper?
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What, exactly, would a judicially-manageable standard under the Elections Clause look like after Moore v. Harper?

Rick Pildes here at ELB has already commented on the petitioners’ brief in Moore v. Harper, the Legislature Thereof Clause, as a brief that “trades off between” a “strong” interpretation and a “weak” interpretation of the Clause–strong, in that the state constitution cannot ever substantively constrain the state legislature, and weak, in that the state constitution cannot have “vague” provisions interpreted by state courts to constrain the state legislature.

I want to delve into this more. By my count, the petitioners in Moore offer five different conceptualizations of conceiving of the boundaries of the Elections Clause, and amici offer three different approaches. On the one hand, a suite of options may make it possible for the Court to find consensus around such a construction. On the other hand, it is, in my judgment, a deficiency, an inability to coalesce around a manageable standard for the Court.

Continue reading What, exactly, would a judicially-manageable standard under the Elections Clause look like after Moore v. Harper?
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Lofgren-Cheney proposal to amend Electoral Count Act would create new federal cause of action over ballot tabulation

There’s a lot to say about e Lofgren-Cheney proposal (the “Presidential Election Reform Act”) to amend the Electoral Count Act of 1887, released yesterday and potentially voted upon by the House tomorrow (a very compressed timeline for public conversation about an important bill where the technical mechanisms matter a lot). It contains many details quite similar to the Electoral Count Reform Act introduced in the Senate, which has 10 Republican and 8 Democratic co-sponsors. And it diverges in a couple of areas, including how it handles emergency provisions for Election Day (some of the complexities I discussed here in the King-Klobuchar-Durbin discussion draft, and I have some of the same surface-level concerns with implementation in this draft, particularly with novelty of a cause of action in a time of crisis), and a cause of action to compel the state executive to transmit an accurate certificate of election (the complexities of causes of action I discussed here with the King-Klobuchar-Durbin bill).

I think these and other items (enumerating objections, the threshold for objections, etc.) reflect some of the good-faith disagreements about implementation that the Senate bipartisan group worked through to the Electoral Count Reform Act (although, so far, I’m partial to the language of the Senate bill), and it will be interesting to see how the process plays out.

But one provision near the end is worth some immediate discussion. The bill has three new federal causes of action, new ways to sue in federal court (two of which I just mentioned), and the third is notable. And it has potentially significant effects in future election litigation. As a standalone provision not really related to the rest of the bill, it’s not as crucial to the rest of the bill (or really directly addresses concerns about the Electoral Count Act in particular), and it’s something easily removed before amending the Electoral Count Act. But I wanted to highlight what it does and some questions I have about it.

Continue reading Lofgren-Cheney proposal to amend Electoral Count Act would create new federal cause of action over ballot tabulation
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Democratic, Republican fundraising for election litigation tops $121 million in 18 months, beats entire 2020 presidential election cycle

I’ve chronicled the recent, astonishing increase in spending on election litigation. Sine 2015, election donors may contribute to “election recounts and contests and other legal proceedings,” above and beyond individual candidate campaign contribution limits.

The total from the first 18 months of 2021-2022 cycle are in, and the Federal Election Commission reports more than $121 million in contributions to accounts of national party committees. The breakdown:

DNC: $37,622,647

RNC: $13,413,360

DSCC: $8,732,380

NRSC: $15,000.391

DCCC: $22,155,455

NRCC: $24,880,883

Democratic National Party Totals: $68,510,483

Republican National Party Totals: $53,294,635

(Other: $5551)

Grand Total: $121,810,669

It’s worth noting that in the first 18 months of the 2019-2020 cycle, the parties raised $53 million. And in the entire 24-month cycle (a presidential cycle), they raised nearly $118 million

In 2019-2020, Republican-affiliated groups edged out Democratic-affiliated groups, $64 million to $53 million. Those figures are almost perfectly reversed (for the moment).

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Electoral Count Reform Act picks up its 10th Republican, 8th Democratic co-sponsor in the Senate

News about the Electoral Count Reform Act has been a bit quiet ever since the Senate left for its August recess. The original bill, introduced in late July, had 9 Republicans and 7 Democrats backing it. In early August, the Des Moines Register broke the story that Senator Chuck Grassley was inclined to support it. He’s officially done so, becoming the 10th Republican Senator to back the Act, joined on the same day by Senator John Hickenlooper, the 8th Democratic Senator to back it.

If the goal is 60 votes to survive a filibuster, it means that Republicans won’t block it. Senator Roger Wicker predicted earlier this year and such a bill could get 80 votes in the Senate. We shall see.

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Eighth Circuit finds Nebraska’s per-county signature requirement for ballot initiatives passes constitutional scrutiny

From Eggers v. Evnen, in an opinion by Judge Raymond Gruender, joined by Judge David Stras (some citations omitted):

The Nebraska constitution gives voters the power directly to enact statutes and constitutional amendments placed on the general-election ballot. Neb. Const. art. III, § 2. To qualify for placement on the ballot, a proposed statute or constitutional amendment must satisfy two conditions. First, at least seven percent (in the case of a proposed statute) or ten percent (in the case of a proposed constitutional amendment) of registered voters must sign a ballot petition. Id. Second, the signatories must “be so distributed as to include five percent of the registered voters of each of two-fifths of the counties of the state.”

This case concerns the second requirement (the “signature distribution requirement”). On September 2, 2021, [Nebraskans for Medical Marijuana] initiated petitions to place proposals to legalize marijuana for medical and recreational purposes on the November 2022 ballot. Eggers is a paid contractor, volunteer, and sponsor of NMM. On May 16, 2022, Eggers and NMM sued the Nebraska Secretary of State in federal court. As relevant here, the plaintiffs claimed that the signature distribution requirement violated Eggers’s rights under the Equal Protection Clause because it devalued her signature relative to the signatures of citizens in less populous counties. The plaintiffs sought a declaration that the signature distribution requirement is unconstitutional on its face and an injunction against its enforcement. . . .

The plaintiffs’ contention is foreclosed by circuit precedent. No right can qualify as “fundamental” for purposes of equal-protection analysis unless it is guaranteed by the U.S. Constitution. And we have repeatedly stated that the right to place initiatives on the state ballot “is not a right guaranteed by the United States Constitution, but is a right created by state law.” [string citation, including,] cf. John Doe No. 1 v. Reed, 561 U.S. 186, 212 (2010) (Sotomayor, J., concurring) (“[Initiatives and referenda] are not compelled by the Federal Constitution. It is instead up to the people of each State . . . to decide whether and how to permit legislation by popular action. States enjoy considerable leeway . . . to specify the requirements for obtaining ballot access . . . .” (internal quotation marks omitted)). Contra Idaho Coal. United for Bears v. Cenarrusa, 342 F.3d 1073, 1077 & n.7 (9th Cir. 2003). In fact, we have applied this principle to the very provision at issue here, distinguishing the “right to vote in an election of political representatives,” which we recognized is “fundamental,” from the right burdened by the signature distribution requirement “to participate in [placing] initiatives and referenda” on the ballot, which we held is “state-created” and thus “nonfundamental.”

Judge Jane Kelly dissented:

The district court relied on Moore v. Ogilvie, 394 U.S. 814 (1969), for the premise that access to the ballot is a right protected by the Fourteenth Amendment. At issue in Moore was an Illinois statute requiring independent candidates to provide an “aggregate total of 25,000 signatures” including “the signatures of 200 qualified voters from each of at least 50 counties” in order to qualify for the ballot. The Court held that because the requirement “discriminates against the residents of the populous counties of the State in favor of rural sections” it “lacks the equality to which the exercise of political rights is entitled under the Fourteenth Amendment.” . . .

The plaintiffs have persuasively argued that Nebraska’s signature distribution requirement may restrain the fundamental right to vote, thus triggering heightened scrutiny review. And the Secretary’s arguments in favor of the signature distribution requirement do not survive strict scrutiny. “[T]he States are required to insure that each person’s vote counts as much, insofar as it [i]s practicable, as any other person’s.” Hadley v. Junior Coll. Dist. of Metro. Kan. City, 397 U.S. 50, 54 (1970). Nebraska’s requirements discriminate against voters in more populous counties in precisely the same manner as the Illinois state law struck down in Moore, a violation of the one person, one vote principle.

The Secretary claims, and the court accepts, that there should be a distinction between the right to vote for a political representative and the right to vote on an initiative, the latter right granted only by the states and thus not guaranteed by the Federal Constitution. But the right addressed in Moore included the right to vote for presidential electors, a right not guaranteed by the Federal Constitution but instead granted by the states. See Moore, 394 U.S. at 815; Bush v. Gore, 531 U.S. 98, 104 (2000) (“The individual citizen has no federal constitutional right to vote for electors for the President of the United States.”). This distinction, therefore, cannot be dispositive. See Bush, 531 U.S. at 104-05 (“Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”); see also San Antonio Indep. Sch. v. Rodriguez, 411 U.S. 1, 35 n. 78 (recognizing that “the right to vote, per se, is not a constitutionally protected right,” but is “shorthand” for “the protected right, implicit in our constitutional system, to participate in state elections on an equal basis with other qualified voters whenever the State has adopted an elective process for determining who will represent any segment of the State’s population”). In any event, the Supreme Court has not expressly limited the “right to vote” in the way the court does today.

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Colorado General Assembly v. Salazar (2004) as precursor to Moore v. Harper

The Supreme Court’s decision to grant certiorari in Moore v. Harper, the North Carolina redistricting case, has prompted, and will prompt, a great deal of commentary (including this helpful discussion this week over at the Safeguarding Democracy Project). But it’s led me to go back and examine a number of sources, and one case from a generation ago is of some interest: Colorado General Assembly v. Salazar (2004). The Court denied certiorari, but three justices dissented. The opinion does not appear in many recent critiques of the scope of the Legislature Thereof Clause, and it’s rarely cited in briefing, but it’s an illuminating decision nonetheless–with parallels to Moore and, perhaps, highlighting a weakness of Moore.

The Colorado Supreme Court in 2003 found that the state constitution precluded the legislature from mid-decade redistricting. That was despite the fact that the 2002 congressional map was implemented by a state court because the Assembly had failed to pass a congressional redistricting plan in time. The legislature wanted a shot at drawing a map in 2003. No dice, said the Colorado Supreme Court. The assembly appealed, citing its power to as the “legislature” to determine the manner of elections under the Elections Clause.

The Court denied cert in 2004. Chief Justice Rehnquist, joined by Justices Scalia and Thomas, dissented, relying on a version of his concurring opinion in Bush v. Gore (without citing it, opting, instead, to cite McPherson v. Blacker (1892) with a “cf.” signal): “Legislature” must mean something under Article I of the Constitution, and here the institutional legislature has been cut out of the process.

In fact, the language in this case is, in some respects, materially similar to Justice Alito’s dissenting opinion in the stay application in Moore v. HarperCompare Colorado General Assembly (“And to be consistent with Article I, § 4, there must be some limit on the State’s ability to define lawmaking by excluding the legislature itself in favor of the courts.”) with Moore (“And if the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.”).

Two other points of interest, to me.

First, there was very little buzz about the Colorado General Assembly’s cert petition or the dissenting opinion. (Not no buzz: the New York Times editorial board lamented the dissenting opinion.) One reason may have been timing: the Court’s partisan gerrymandering decision in Vieth v. Jubilirer was just a few weeks earlier and likely absorbed the brunt of attention. (But Rick Hasen’s useful examination of the case in a Hastings Constitutional Law Quarterly piece some years ago is a good one.) Another is that, well, it was a dissent from a denial of certiorari from three justices, and, like Bush v. Gore, seemed to have little traction at the time.

Second, the opinion relied heavily on the legislature being cut out of the process. Unlike the usual cases traipsed out for discussion here, like Smiley v. Holm (legislative act subject to gubernatorial veto) and Ohio ex rel. Davis v. Hildebrant (legislative act subject to referendum), Chief Justice Rehnquist’s opinion focuses on the legislature being entirely left out by the state court ruling. It’s a concern not unlike Chief Justice Roberts’s dissenting opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission.

It strikes me as interesting to consider the outer bounds of claims under the Legislature Thereof Clause. Is the concern the absence of legislative involvement, like in Colorado General Assembly and Arizona State Legislature? Or is it some inappropriate treading upon the legislature, which is at issue in Moore? The latter seems far more difficult to police, even if it came out in the concurring opinion in Bush v. Gore. In Moore, the North Carolina legislature still gets a bite at redistricting for 2024. But it must do it within the contours of the state supreme court’s articulation of state constitutional law. The interim congressional map is only an interim, and the legislature can come back with another map later. (In fact, the legislature had a shot at a map after the partisan gerrymandering decision, but that map was also rejected by the state courts.)

Rick Pildes has blogged here about the various routes that the Supreme Court may take in Moore. The “Regulating v. Permanently Displacing State Legislatures” distinction here comes to mind as the Court takes up the case.

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Injunctive relief granted, mandamus denied in Pennsylvania county certification dispute

About six weeks ago, I highlighted the dispute in Pennsylvania over whether to include some absentee ballots that lacked a date in the county’s certified results. I noted that mandamus struck me as inappropriate and that media or commentary comparisons to, say, Otero County, New Mexico were off base:

Now, that’s fine, because mandamus isn’t magic. It applies to narrow cases. And there are other solutions here. The state leads with mandamus, but it includes a second cause of action, seeking declaratory and injunctive relief, and it devotes the bulk of its brief to that. That strikes me as the more likely place to go (with, perhaps, a ride-along mandamus order directing the county boards to comply with the newly-issued injunctive relief).

With some complexity, a Pennsylvania court has issued a decision: it granted injunctive relief but denied mandamus relief, ordering inclusion of disputed ballots in the certified results. The opinion is here. Post-Gazette coverage is here.

Three thoughts.

First, the court emphasizes again why mandamus was inappropriate given the procedural posture of the case and the precedents that came before:

In granting a preliminary injunction, the Court analyzed the legal issue of whether such ballots should be counted under the standard for granting preliminary injunctive relief. This standard required the Court to determine whether the petitioners were “likely to prevail on the merits.” Importantly, the grant of a preliminary relief “[does not] serve as a judgment on the merits” because “it is a temporary remedy granted until that time when the party’s dispute can be completely resolved.” Thus, the Court’s determination was not a final decision on the merits. Given the procedural posture, the Court could not make a final determination that these ballots were lawfully cast, but determined that the petitioners in McCormick were likely to succeed on that argument under Pennsylvania and federal law.

The Court’s June 2, 2022 order in McCormick also did not reference the certification of election results. That order granted the preliminary injunction and directed county boards [to segregate ballots and include two tallies]. Petitioners interpret the Court’s direction that these ballots be canvassed, and to report a total vote tally as requiring the Boards to certify those results under Section 1308(g)(4), which requires that all canvassed ballots must be included in the results. However, viewed in light of the Court’s legal analysis, which did not finally resolve the issue of whether these ballots were lawfully cast, and the procedural posture of the case, this direction is more appropriately understood as directing canvassing of the ballots in anticipation of a final determination. Because McCormick involved the grant of preliminary relief, the results of which could change pending final resolution of the legal issue, the Court would not have had the authority to require the Boards to certify their election results to include the ballots without handwritten dates on the return envelope. Accordingly, the Court will not interpret the June 2, 2022 order in McCormick to require such certification, and, therefore, Petitioners have not met their burden of proving their entitlement to summary relief on their mandamus claim.

(Citations omitted.)

Second, there’s an extensive and comparative look at the relationship between state law and the federal “materiality” standard that’s worth a read. That said, the work of the “materiality” portion of the Civil Rights Act of 1964 is quickly becoming an attractive source of litigation. It is likely the Supreme Court weighs in soon–but, spoiler alert, I doubt it will end the way many plaintiffs’ groups hope.

Third, Pennsylvania remains one of the most problematic jurisdictions in terms of election administration. It has a deeply decentralized system. Its certification of one set of results in 66 counties here, but a different set in another county, is a walking Equal Protection violation. I wrote earlier this month, “The state legislature and the state executive are at loggerheads with one another, yielding a sclerotic legislative process for any tool that could resolve ambiguities or increase centralization. Absent some breakthrough, it is probably the single most likely source of election dysfunction ahead of the 2022 and 2024 elections.” It remains true.

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Michael L. Rosin: “Why the Framers Gave *That* Responsibility to the President of the Senate and to the House and Senate”

I’ve had some helpful exchanges with independent scholar Michael L. Rosin on the history and practice of the Electoral College. After the recent Senate Rules Committee hearing on the Electoral Count Reform Act, he shared some thoughts with me that I thought would be of interest to ELB readers. -Derek

Continue reading Michael L. Rosin: “Why the Framers Gave *That* Responsibility to the President of the Senate and to the House and Senate”
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There’s plenty of time for litigation under the Electoral Count Reform Act

A couple of weeks ago, I was privileged to testify before the Senate Rules Committee in support of the Electoral Count Reform Act of 2022. You can view my testimony (along with those of other witnesses and a video of the hearing itself) here.

I want to focus on one line of misunderstanding that’s gotten a lot of repetition in some media accounts: there’s only a “six day window” to litigate issues related to a certificate of ascertainment of appointment of election of presidential electors, which is not enough time.

This significantly misrepresents the timing of litigation under the ECRA. In the vast majority of cases, there is several weeks’ time for resolution of election disputes; in a very narrow band of very late-breaking disputes with little need for new factual development, there is a shorter window. And it’s tough to move that window around.

Continue reading There’s plenty of time for litigation under the Electoral Count Reform Act
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Pennsylvania error prompts meeting with judge over Lancaster County mail-in ballot case

Last month, I blogged about the mail-in ballot dispute in Pennsylvania. I noted that mandamus was not appropriate and the case was nothing like the recent Otero County, New Mexico case. That dispute took about 48 hours to resolve. Here we are, a month into the dispute, a second judicial hearing (the first one was a lengthy information-gathering one), and still no resolution–which, I think, shows my original take was right.

But there’s a new wrinkle, as reported in the LNP Lancaster Online (and the origin of this blog title). The Department of State argued that 3 of the 67 counties failed to include undated ballots in their certified vote totals. It certified the other 64 counties. But in a recent filing, Pennsylvania acknowledged that 1 of those other 64 counties also did not include undated ballots in the certified totals. Pennsylvania has no plans to “decertify” the results (not a great headline in 2022), and the court will now have to decide what to do with these other 3 counties. The State has already approved two different sets of results from the counties, so it becomes harder to claim the other 3 are doing something inappropriate. But the State still believes that it has the law on its side from the previous disputes (check out the original blog post to see the framing) and wants the remaining 3 counties to do what it wants.

This is extraordinarily messy. Pennsylvania has a deeply decentralized election system and a Secretary of State trying (so far, unsuccessfully) to exert more centralized control. The state legislature and the state executive are at loggerheads with one another, yielding a sclerotic legislative process for any tool that could resolve ambiguities or increase centralization. Absent some breakthrough, it is probably the single most likely source of election dysfunction ahead of the 2022 and 2024 elections. We’ll see how this process plays out and if it offers any clues for the near future.

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Request for Submissions: AALS Section on Election Law, Works in Progress Panel, “New Voices in Election Law”

From an email I recently sent to the AALS Section on Election Law listserv:

As Chair of the Section on Election Law, it’s my privilege to share that in addition to our annual program (which will take place Friday, January 6, 2023, at 1 pm PT), we will host a “works in progress” panel, “New Voices in Election Law,” for recently-appointed faculty. Topics relating to election law or the law of democracy are welcome and encouraged. We hope to have three or four faculty present, with the opportunity for conversation and questions from the audience.

The “works in progress” panel will take place at 8 am PT, Wednesday, January 4, 2023. The moderator will be our Section’s Chair-Elect, Tabatha Abu El-Haj.

To be eligible, an author must be teaching at a law school in a tenured or tenure-track position and must not have been teaching at either of those ranks for a total of more than seven years. We accept jointly authored submissions, but each of the coauthors must be individually eligible to participate.

Please send your work in progress (a work in a draft stage or that has been accepted for publication but is not yet published) and your CV to derek-muller@uiowa.edu. I will pass all submissions along to a panel of members of the Section’s Executive Board, who will review submissions.

The deadline for submissions is Thursday, September 1, at 5 pm ET.

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Some thoughts on the judicial review mechanism in the Electoral Count Reform Act

I was pleased to join a statement with Professors Foley, McConnell, Pildes, and Smith in support of the Electoral Count Reform Act. That statement includes a nice summary of the highlights of the legislation. I wanted to drill down on one feature of the Act (and there will be opportunity to drill down on many more elements!): the judicial review mechanism.

One prominent complexity of a previous “discussion draft” of ECA reform was considering how judicial review fit into the picture. Judicial review of election disputes looks very different in the 21st century than the 19th century, and the problems that might arise look different each election cycle. Florida 2000, Ohio 2004, myriad 2020 lawsuits, to name a few, each took different directions. So what would judicial review look like? I had a pretty good grasp on 3/4 of the “discussion draft’s” judicial mechanisms and blogged through it, and I thought I’d do the same with what’s happening in this bill, too.

There’s been some discussion about this already. There’s been some thoughts (across the spectrum!) from Marc Elias, Quin Hillyer at the Washington Examiner, Norm Eisen, and the Wall Street Journal editorial board expressing varying questions about the judicial review piece in the bill. Matthew Seligman offers his own thoughts in support.

I’ll take a longer look here, about what it does and doesn’t do–warning, some federal courts meandering ahead….

Continue reading Some thoughts on the judicial review mechanism in the Electoral Count Reform Act
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