All posts by Derek Muller

Does Michigan’s decision to move up its presidential primary violate the state’s new constitutional right to vote?

The Democratic National Committee recently approved changes to the presidential primary calendar. One of those changes permits Michigan to move into February for its presidential primary. Michigan just changed its primary to February. But the Republican National Committee rules forbid a February primary for Michigan. RNC rules would dramatically reduce the number of delegates Michigan receives, from its present total of (I think) 55 to “to nine (9) plus the members of the Republican National Committee from that state.”

The same thing happened in 2008, when Michigan (among other states) went early. But the penalty at the time was a 50% reduction in delegates. The penalty has since been increased to induce compliance. It’s a significant cost for Republicans to go early.

Josh Putnam points out potential alternatives: maybe Michigan funds a second, later primary for Republicans. Or maybe Michigan Republicans “opt out,” leave a “beauty contest” in place in February, then hold a private primary or caucus in March.

But I wonder if the new law now violates a new state constitutional right to vote enacted last year, Proposition 2. That includes the following language:

The fundamental right to vote, including but not limited to the right, once registered, to vote a secret ballot in all elections. No person shall: (1) enact or use any law, rule, regulation, qualification, prerequisite, standard, practice, or procedure; (2) engage in any harassing, threatening, or intimidating conduct; or (3) use any means whatsoever, any of which has the intent or effect of denying, abridging, interfering with, or unreasonably burdening the fundamental right to vote.

Any Michigan citizen or citizens shall have standing to bring an action for declaratory, injunctive, and/or monetary relief to enforce the rights created by this part (a) of subsection (4)(1) on behalf of themselves. . . .

Presidential primary elections are tricky things to pin down as a legal matter, something I’ve noted briefly here. But, at first blush, the decision to move the Republican presidential primary from March to February might have the “effect” of “abridging” or “interfering with” the “fundamental right to vote.” If your vote in March had the power to choose 55 delegates to the national presidential nominating convention, but your vote now in February has the power to choose 12 delegates to the national presidential nominating convention. That would seem to dilute your political power.

Now, again, it’s not exactly clear to me how this works for a presidential primary election. Voters are formally choosing delegates to a convention. But I imagine that this still falls within what the constitution would define the “fundamental right to vote.” That is, if the legislature abolished absentee voting or drop boxes in a presidential preference primary (elsewhere now required in the constitution), one could challenge that.

Then again, it’s also contingent on the behavior of a third party, the RNC’s rules and recognition of what states can or cannot do, and the RNC could, of course, change its rules. It becomes much more challenging to think about how this new state constitutional right operates against that backdrop.

I don’t have any answers, but I do wonder about how a initiative of language with this breadth affects what’s happening in the presidential primary shakeup right now.

Share this:

Eighth Circuit considers whether the Voting Rights Act allows private parties to sue under Section 2

An Eighth Circuit panel recently heard oral argument (MP3) in Arkansas State Conference NAACP vs. Arkansas Board of Apportionment. It’s an appeal from a district court decision concluding that private parties may not sue under Section 2 of the Voting Rights Act; only the United States may initiate claims.

The three judges hearing the argument were Chief Judge Lavenski Smith, Judge Raymond Gruender, and Judge David Stras. There’s a lot to unpack from the oral argument. It’s quite possible that the district court’s decision will be upheld, and the Supreme Court will be asked to take up the case in the next year. It makes the topics unearthed at oral argument ripe subjects for academic scholarship in the months ahead. (You can of course find much more detail in the briefs, but the argument highlighted, I think, some of the most salient issues for this panel.)

Continue reading Eighth Circuit considers whether the Voting Rights Act allows private parties to sue under Section 2
Share this:

“The American Law Institute Launches Restatement of the Law, Election Litigation”

I’m thrilled to share the details about this new project from the ALI:

The American Law Institute’s Council voted today to approve the launch of a Restatement of the Law project on Election Litigation. The project will be led by Reporters Lisa Manheim of the University of Washington School of Law and Derek T. Muller of the University of Iowa College of Law.

The Restatement’s goal is to provide guidance to federal and state court judges adjudicating election disputes, focusing on the areas governed by equitable principles and guided by judicial common law. Topics will include the “Purcell Principle” on timing of judicial intervention, the preservation of pre-established conditions for election conduct, the roles of state and federal courts in election disputes, administrative flexibility for emergencies, remedies for failed elections, and claims over exclusion of parties from the ballot and lack of voter access. The Restatement will not address broader questions bearing on the substance of election law.

I’m really looking forward to working with someone as outstanding as Lisa on this new and transformative project in the years ahead.

Share this:

State legislatures should examine their election codes after passage of the Electoral Count Reform Act

The new Electoral Count Reform Act will have an effect on state election laws in presidential elections. The timing mechanisms have changed, and rules now expressly invite state legislatures to make explicit choices before Election Day. And states should be aware of how the changes could affect their own election codes, and whether they should revisit some of their existing choices.

First, the ECRA abolishes the “failed to make a choice” provision of the 1845 act (North Carolina may need to repeal its law to this effect) and replaces it with a firm, singular “election day” requirement, with one exception: “except, in the case of a State that appoints electors by popular vote, if the State modifies the period of voting, as necessitated by force majeure events that are extraordinary and catastrophic, as provided under laws of the State enacted prior to such day.” States should provide those clear rules before the election for what “extraordinary and catastrophic” “force majeure” events trigger a modified period of voting. (This only applies to presidential elections, but it could also apply to state elections happening at the same time, if a state so chose.)

I commend the work of Professor Michael Morley, who has offered extensive and thoughtful views on what election emergency statutes should look like. To borrow from one of his recommendations in an Emory Law Journal piece from 2018:

[A]n emergency that is either of limited duration or affects only a limited geographic area is best addressed through an election modification, in which the election is allowed to proceed with only minor changes to the generally applicable laws. Examples of election modifications may include relocating polling places, extending the hours of polling places that were temporarily inoperable, using paper ballots instead of electronic voting machines, permitting voters to cast ballots through alternate means, or allowing re-votes if certain cast ballots are destroyed before being counted. One important issue such laws present is whether election officials should have discretion to implement such measures on their own, must wait for a declaration of emergency from local or county officials or the governor, or instead must seek a court order before implementing such changes. A statute requiring judicial permission before extending polling place hours, or making other substantial modifications to the rules governing an election, would be a particularly prudent safeguard.

Express guidance for what events qualify, with a requirement for judicial permission, would be “prudent” indeed.

Second, the ECRA adds a firm deadline for executives to submit certificates of ascertainment of appointment of electors (no more “safe harbor” or presumptions). 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. States like California have languished in completing their canvass in recent years, taking up to 30 days to resolve the initial canvass, setting aside even the possibility of recounts (in the event of a close election). Some states allow ballots to come in seven to ten days after Election Day, and maybe that continues to work to meet existing deadlines, but states should strive for wrapping up the canvass as quickly as possible after the last ballot comes in. Other states have developed newer recount triggers, or risk-limiting audits, which should be completed with an eye toward this firm deadline. But states should think about how they plan on running through each of these steps (which Georgia mostly had to do in 2020!) in a tight time frame.

Relatedly, expedited state judicial resolution should be considered in the states, including specially-created contest courts or expedited appeal mechanisms. (Iowa, for instance, creates a seven-judge tribunal with no right of appeal for election contests in federal races, to be resolved “six days before the first Monday after the second Wednesday in December next following,” i.e., the old “safe harbor” deadline, which means it should probably be updated!)

The precedent from Hawaii 1960 has been repudiated. That is, no more judicial challenges or recounts extending into January.

Third, the new ECRA expressly requires a “security feature” on the certification of ascertainment of appointment of electors, “as determined by the State.” This is a modest requirement, and perhaps the seal on state certificates are adequate, but it’s worth considering what feature the states will use.

Fourth, the ECRA defaults to the executive to the “governor,” but state law may identify “a different State executive” to perform the duty (say, a Secretary of State) if it so chooses.

State legislatures should take a step by step approach to examine what the ECRA does and how it meshes with their existing election code. Formally, no state will be forced to make a change, as the new federal obligations simply exert different pressure on existing state law. But it provides an opportunity for states to modernize their election codes to meet the clearer federal guidelines ahead of the next presidential election.

Share this:

On this record, Congress cannot refuse to seat Representative-Elect George Santos

Details about Representative-Elect George Santos’s biography have emerged, suggesting that the New York Republican has been, shall we say, less than truthful about his background. As the New York Post puts it, “Liar Rep.-elect George Santos admits fabricating key details of his bio.” These details range from his employment to his heritage. Open questions remain about his finances.

Some coverage suggests Santos may not (or should not) be seated in Congress. The Washington Post uncritically quotes a GOP donor: “But I certainly think that the leadership of the Republican Party has an obligation not to seat someone that is obviously totally phony.” Representative Eric Swalwell tweeted out to his followers, “RT if he should be banned from taking the oath for Congress.”

But the New York Times has the right coverage so far:

Yet even as Mr. Santos, whose victory helped Republicans secure a narrow majority in the next House of Representatives, admitted to some fabrication, his actions will likely not prevent him from being seated in Congress.

. . .

The House can only prevent candidates from taking office if they violate the Constitution’s age, citizenship and state residency requirements. Once he has been seated, however, Mr. Santos could face ethics investigations, legal experts have said.

Powell v. McCormack is precisely on point, as the Supreme Court handled a similar situation of Congress refusing to seat a member for, shall we say, the House’s distaste for some of Powell’s extracurricular activities. Ethics investigations after he’s seated? Sure thing. But seat him Congress must.

The Senate very briefly flirted with blocking Roland Burris in similar circumstances in 2009, pushing against his appointment and blocking him briefly for lacking the formal paperwork to be seated before finally seating him.

Other members of Congress have been cagey about whether to seat Santos, either refusing to address the issue directly or turning the question of seating into one more about caucusing. But unless some news arises that, say, Santos wasn’t an inhabitant of New York on Election Day or that his timeline of age or citizenship is in question, Congress cannot refuse to seat him.

Share this:

Congrats to this year’s AALS Section on Election Law award winners

I am pleased to share the recipients of the AALS Section on Election Law’s annual awards ahead of the annual meeting next week. (For a list of past award recipients, see here. If you are a law professor who is not already on the listserv to receive these announcements, please join the Section here!) I am immensely grateful to the volunteers who helped with these selection processes.

The John Hart Ely Prize in the Law of Democracy

This award is presented to a senior scholar in our field for his or her “extraordinary lifetime contributions to the study of election law and the law of democracy in the United States.”

This year’s recipient is Pam Karlan (Stanford).

Distinguished Scholarship Award

The Distinguished Scholarship Award in Election Law is awarded for “a single work that exemplifies excellence in the field and that is published within a given year.” The term “work” is defined broadly.

Winner: Tabatha Abu El-Haj – How The Liberal First Amendment Under-Protects Democracy

Honorable Mention: Bertrall Ross and Doug Spencer – Voter Data, Democratic Inequality, and the Risk of Political Violence

Share this:

Parliamentary tweaks to the Electoral Count Reform Act

Earlier this week, I noted that the Senate’s Electoral Count Reform Act was included in the omnibus bill, with “quite minor technical and parliamentary changes.” I wanted to highlight what those are.

There are a few word choice changes to bring consistency among the new provisions from the Electoral Count Reform Act and the existing provisions of the Electoral Count Act, such as replacing the word “list” in places with “certificate of ascertainment,” as it relates to state results of the appointment of electors; changing “the” to “a” or “votes or papers” with “any vote or paper,” for some increased precision.

Three others more interesting (but still minor, parliamentary) details.

First, it renames the joint “meeting” a joint “session.” There’s a formal distinction between the two, and the modification of language brings it up to the appropriate title of “session.”

Second, in the two-hour debate period for any objections, it gives the majority and minority leaders equal time to parcel out up to five minutes’ debate per member. This is how it’s worked in practice, but it’s now codified.

Third, it specifies that objections and “questions” must be signed by 1/5 of the members of each chamber. This tidies up a precedent that arose in 2001, when Representative Ted Deutsch attempted to make a point of order to note the absence of a quorum. Vice President Al Gore ruled that the question was out of order: “The Chair rules, on the advice of the Parliamentarian, that the point of order that a quorum is not present is subject to the requirement that it be in writing and signed by both a Member of the House of Representatives and a Senator.” The “questions” language in the new ECRA tidies up this precedent by making it explicit.

Again, these are nitpicky language changes to the ECA, and the language of the ECRA largely tracks the manager’s amendment from the Senate Rules Committee, which had largely tracked the bipartisan negotiated deal that came from Senators Susan Collins and Joe Manchin. But if you really wanted to know what small changes arose, now you know.

Share this:

Senate’s Electoral Count Reform Act included in omnibus

The text of the omnibus bill has been released, and the bill includes the long-anticipated amendments to the Electoral Count Act. The text is almost identical to the Electoral Count Reform Act, the bill drafted and negotiated by Senators Susan Collins and Joe Manchin in a bipartisan group, then amended lightly in a thoroughly bipartisan Senate Rules Committee hearing led by Senators Amy Klobuchar and Roy Blunt. The text in the omnibus is the same as the text of the Electoral Count Reform Act as it came out of committee, with quite minor technical and parliamentary changes.

Election law scholars (myself included) were supportive of the specific details of this effort. Over at The Conversation, I highlight the major points of this bill. And the bill continues to attract broad bipartisan support (formally in the Senate, 21 Democrats and 16 Republicans have cosponsored, but others have expressed support in other ways, too). Just yesterday, Senator Rand Paul published an op-ed in support of the ECRA. It’s crucial for a bill to have broad, deep, and genuine bipartisan consensus, not token or minimal bipartisanship: in future political disputes, regardless of the partisan valence, the parties have the buy-in to adhere to the rules that they’ve agreed to well before any disputes arise.

Share this:

“Conceptual Replication of Four Key Findings about Factual Corrections and Misinformation During the 2020 U.S. Election: Evidence from Panel Survey Experiments”

Alexander Coppock, Kimberly Gross, Ethan Porter, Emily Thorson, and Thomas J. Wood, Conceptual Replication of Four Key Findings about Factual Corrections and Misinformation During the 2020 U.S. Election: Evidence from Panel Survey Experiments (British Journal of Political Science):

In the final two months of the 2020 U.S. election, we conducted eight panel experiments to evaluate the immediate and medium-term effects of misinformation and factual corrections. Our results corroborate four sets of existing findings: fact-checks reliably improve factual accuracy, while misinformation degrades it; effects of fact-checks on belief accuracy endure, although they fade with time; effects on attitudes are minuscule; and there are important partisan asymmetries. We also offer one new empirical finding suggesting that effect heterogeneities by personality type and cognitive style may reflect attention paid to treatments. Our study confirms that the fundamental push and pull of misinformation and factual corrections on political beliefs holds even in electoral settings as saturated with mistruths as the 2020 U.S. election.

Share this:

“Election nonprofit that drew GOP ire in 2020 renews grants”

Associated Press:

A nonprofit group that became a point of controversy for distributing hundreds of millions of dollars in election grants during the 2020 presidential campaign is releasing a fresh round of money to local election offices, including in states where Republican lawmakers tried to ban the practice.

The Chicago-based Center for Tech and Civic Life has released only general details about how much money each office will receive or what it will fund.

It has said 10 county and municipal election offices will be part of the first group to receive grant money under the center’s U.S. Alliance for Election Excellence, which has $80 million to hand out over the next five years, with few restrictions.

Share this:

“GOP sues over special elections in Pa. House majority battle”

Associated Press:

The top-ranking Republican in the Pennsylvania House of Representatives asked a court late Friday to prevent voters from filling three vacant seats in February that will determine majority control of the chamber.

Rep. Bryan Cutler of Lancaster, who served as speaker until Nov. 30, asked Commonwealth Court to issue an injunction, naming the Department of State, acting Secretary of State Leigh Chapman and the Allegheny County Elections Board as defendants.

Cutler’s filing came days after his Democratic counterpart as floor leader, Rep. Joanna McClinton of Philadelphia, claimed the mantle of the chamber’s presiding officer and sent the state orders scheduling the elections for Feb. 7.

Share this:

Manheim on Election Law and Election Subversion

Lisa Marshall Manehim, Election Law and Election Subversion (Yale Law Journal):

Scholars of American election law used to take the rule of law as a given. The legal system, while highly imperfect, appeared sturdy, steady, and functional. Recent election cycles—culminating in dramatic attempts at election subversion—have revealed this assumption beginning to break down. Without the rule of law as a dependable constant, the study of election law quickly expands. Legal experts now are simultaneously occupied with: first, the substance of election laws; second, the design of election institutions; and third, the threat of participants unlawfully undermining elections from within. This Essay identifies and contextualizes the rule-of-law pivot that is reflected in this rapidly expanding body of scholarship, including by exploring the definition of election subversion and its relationship to the rule of law. It then examines three basic prescriptive tacks that legal experts have taken in response to the threat of election subversion. These approaches can be understood as constraint-based, incentive-based, and corrective. So framed, each approach presents fundamental advantages and disadvantages for those seeking to ensure that the rule of law continues to govern elections. No single approach, in other words, provides clear and straightforward direction. This Essay concludes by offering a path forward: one that, by necessity, is multifaceted, interdisciplinary, and messy. This complexity reflects the depth of the underlying conundrum, which asks election-law scholars to consider how, if possible, to harness the rule of law to ensure the rule of law.

Share this:

Sellers on Electoral Adequacy

Joshua S. Sellers, Electoral Adequacy (Yale Law Journal):

This Essay considers the function of election law, as an academic field, in strengthening democratic institutions and improving democratic accountability. In undertaking this inquiry, this Essay advocates an interdisciplinary research program oriented around the concept of electoral adequacy. Electoral adequacy’s premise is that states are obligated to provide a minimal set of entitlements, or a baseline level of election services, to all voters.

Electoral adequacy seeks to unite institutional political theory, empirical research on election systems, and strategic political thinking, with the goal of improving the electoral process. It is centered on three policy components: adequate funding, competent management, and democratic structures. Finding success in these policy areas would mitigate many specific election-administration disputes

Share this: