All posts by Derek Muller

Ballot access rules for disqualified presidential candidates

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

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

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”

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

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

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”

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

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

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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Minimal disruption in Iowa redistricting plan despite delayed Census data

The Iowa Constitution requires the legislature to enact redistricting maps by September 15. That date will come and go given the delayed release of Census data. The first map from Iowa’s nonpartisan Legislative Services Agency (unique and widely praised) comes out September 16, among the earliest releases from the states, which it then submits to the legislature.

In April, the Iowa Supreme Court issued a cryptic and “tentative” but not “legally binding” press release about what might happen if the September 15 deadline could not be met. The state constitution requires that “the supreme court shall cause the state to be apportioned.” It’s an awkward phrase, but read in conjunction with the next paragraph of the state constitution, which requires the court to “adopt or cause to be adopted an apportionment plan” if the apportion is unconstitutional, it means that the Iowa Supreme Court plays an indirect role. The April release suggested that the Court would extend the deadline for the legislature to act according to its existing responsibility, which would “cause the state to be apportioned.”

Today, the Court issued an order doing just that. The deadline has been extended to December 1, with the legislature permitted to enact a law pursuant to the Iowa Code. Governor Kim Reynolds has called the legislature into a special session October 5 to consider the first maps from the LSA, again consistent with the Iowa Code.

It’s a simple, straightforward solution that allows the ordinary process to play out, albeit on an extended timeline. And it preserves the respective roles of the LSA, the legislature, and the courts–the LSA drafts the maps, the legislature approves or disapproves them (and might ultimately amend the maps), and the court steps in to review the plans only at the end.

As other states wrangle with how to handle redistricting on an expedited basis, it’s encouraging to see little drama and a strong rule-of-law bent here in the Hawkeye State. Let’s hope other states follow suit.

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Texas enacted SB 598, which includes a paper audit requirement and a risk-limiting audit

Earlier today, I lamented that SB 1 in Texas omitted the paper audit or paper ballot requirement that was in its original SB 7. Since that post, I was informed that the Texas legislature did enact, with near unanimity, SB 598, which includes the paper ballot requirement, as a standalone bill. As another component, it included a requirement of risk-limiting audits beginning in 2026, with a pilot program beginning in 2022.

I’m glad to see the developments and that they were not simply chopped out of SB 7, and I’m sorry I didn’t see them before my post, which misled readers. I’ll update that post as well.

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The disappearance of a paper ballot requirement in Texas’s SB 1

IMPORTANT UPDATE AND CORRECTION: Texas did enact a version of this requirement in a separate bill, SB 598. See my update here.

Texas’s SB 1, in my judgment, is a hodgepodge of sensible and strange rules that will add a bit more complexity and uniformity, sow a bit more confusion (especially among elderly absentee voters), and likely increase no one’s confidence in elections. Many of the critiques are right (including concerns of overcriminalizing innocuous behavior). Others are oddly misplaced. (For instance, it’s strange, to me, at least, to see critiques that the bill “without justification” creates a “two-tiered and arbitrary system.” The present law has tiers of rules, without much consternation–and, I think, it makes sense to require bigger counties provide more early in-person voting opportunities, and allow smaller counties to hold it only upon sufficient request, among other distinctions.)

With that mealy-mouthed wind-up, here’s my lament. The most disappointing thing in SB 1 is what it omits. It’s a change made after the original conference committee bill, SB 7, the one that prompted a legislative walk-out.

The old SB 7 (“tempered” by Democrats by the time it got to the conference committee report) included a phase out of direct recording electronic voting machines by 2026 and required use of paper ballots or a paper audit trail. (It’s Section 4.14 of the conference committee report, introduced in the Senate but not the House, but included in the conference report. There are details, too, about the potential fiscal impact on counties.)

That provision is gone from SB 1.

It’s disappointing, as there has been, in theory, bipartisan consensus over paper trails. “Kraken” lawsuits baselessly discussed “flipping” votes in electronic voting systems, which is impossible in essentially every jurisdiction under scrutiny as there was always a paper trail. Georgia’s excellent statewide audit in 2020 found a few mistakes–but few, and nothing so digitally-pernicious.

Eliminating direct response electronic voting systems costs money, and there are fights over who pays and when and how. There was some agreement in SB 7 to do it. And that vanished in SB 1 as enacted.

It’s a strange, sad tale of what might have been. If Democrats had stuck around for the first bill (given that it inevitably passed), would that provision from the conference report (in theory, what each chamber agreed to) make it into law? Did Republicans pull it out of some vindictive reaction, or becomes some balked at the cost on a subsequent go-around?

I’ve asked around but haven’t received a good response. So I end with the words attributable to another Muller: it might have been.

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UPDATED: Redistricting roundup

August 31: I have updated some of the links and resources in this post and have bumped it to the top.

Ahead of the Census release:

ABC News

Associated Press

CNN

NBC News

NPR

New York Times

Politico

Roll Call

Wall Street Journal

And there are many resources in 2021! A few resources to consider:

All About Redistricting (Loyola Law School)

Daily Kos

Dave’s Redistricting App

DistrictBuilder

FiveThirtyEight

NAACP Legal Defense Fund

National Conference of State Legislatures

PlanScore (Campaign Legal Center)

Princeton Gerrymandering Project

Redistricting & You

Redistricting Online

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Nationwide preclearance of existing voter identification laws in the John L. Lewis Voting Rights Advancement Act

Travis and Nick had helpful summaries and thoughts of the major components of H.R. 4, the John L. Lewis Voting Rights Advancement Act. I wanted to highlight one interesting change from the 2019 edition of the VRAA, the scope of nationwide preclearance of voter identification laws.

Like the 2019 edition of H.R. 4, the proposed Act would include seven “covered practices” that apply nationwide (although Travis helpfully reminds readers that some only come into play if certain demographic factors are present). One of those practices includes “changes in documentation or qualifications to vote.”

The last version of H.R. 4 had this threshold

Any change to requirements for documentation or proof of identity to vote such that the requirements will exceed or be more stringent than the requirements for voting that are described in section 303(b) of the Help America Vote Act of 2002 (52 U.S.C. 21083(b)) or any change to the requirements for documentation or proof of identity to register to vote that will exceed or be more stringent than such requirements under State law on the day before the date of enactment of the Voting Rights Advancement Act of 2019.

“[T]he requirements for voting that are described in section 303(b) of the Help America Vote Act of 2002” was an awkward reference, as that subsection of HAVA dealt with proof for those who registered to vote by mail, not voter identification generally. But those requirements are “a current and valid photo identification; or . . . a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter.” Essentially, the previous VRAA allowed any form of voter identification law that met HAVA (which included an either/or proviso), but preclearance would be needed for requirements that “exceed” or are “more stringent than” those forms.

That’s changed two ways in the new draft, which is a bit more complicated:

Any change to requirements for documentation or proof of identity to vote or register to vote that will exceed or be more stringent than such requirements under State law on the day before the date of enactment of the John R. Lewis Voting Rights Advancement Act of 2021; and further, if a State has in effect a requirement that an individual present identification as a condition of receiving and casting a ballot in an election for Federal office, if the State does not permit the individual to meet the requirement and cast a ballot in the election in the same manner as an individual who presents identification—

(A) in the case of an individual who desires to vote in person, by presenting the appropriate State or local election official with a sworn written statement, signed by the individual under penalty of perjury, attesting to the individual’s identity and attesting that the individual is eligible to vote in the election; and

(B) in the case of an individual who desires to vote by mail, by submitting with the ballot the statement described in subparagraph (A).

The proposed Act eliminates the HAVA threshold–now all voter identification laws would need to go through preclearance.

It then tacks on a clause (in my judgment, a bit awkwardly in this place): “further, if a state has in effect a requirement” of a voter identification law of a certain type. That is, this is not a paragraph relating to a “change” in a voter identification law. Instead, it is about preexisting laws on the books.

It targets all voter identification laws that are what are called “strict” laws–that is, a voter is unable to vote if she lacks the appropriate identification and must take some other step to demonstrate identity for a provisional vote to count.

It appears to attack some “non-strict” laws, too, where election officials after Election Day review the eligibility of a voter who lacks identification. It’s not clear, for instance, whether West Virginia’s voter identification, which requires a voter who lacks identification to vote provisionally, and that ballot is “entitled to be counted once the election authority verifies the identity of the individual by comparing that individual’s signature to the current signature on file with the election authority and determines that the individual was otherwise eligible to cast a ballot at the polling place where the ballot was cast.” Casting a provisional ballot is not “in the same manner” as voters who have identification.

Instead, the proposed Act allows only existing voter identification laws to remain in place if a voter can present a “sworn written statement . . under penalty of perjury” of eligibility.

This new bill, then, puts other existing voter identifications laws on the books subject to retroactive preclearance, except those that meet the “penalty of perjury” alternative to identification. It is likely that many identification laws, like West Virginia’s, would survive preclearance. But it would also freeze a lot of identification laws from any application pending future review.

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Qualifications for candidates running in California’s gubernatorial recall

To build off Ned‘s post, and setting aside the major laches problem to this lawsuit, Vik Amar and Evan Caminker at Justia have a pretty thorough defense of California’s process, a process that disqualifies a recalled governor from seeking office for the replacement term. I’ll highlight (or restate?) a couple of points I made very briefly on Twitter earlier.e

The California Constitution dictates, “The officer may not be a candidate.” Art. II, sec. 15(c). That is, upon a majority of voters recalling the officer, the officer is disqualified from seeking the remainder of the term. As a qualification for office (which Ned points out), we have many such rules. Term limits, age limits, resign-to-run laws, sore loser laws, and myriad other state qualifications rules. It can be a function of impeachment. And recall, in my judgment, seems similar.

Once a candidate is disqualified from seeking office, whether that happens on the same ballot or an earlier ballot, it’s not “one person, one vote.” The candidate is disqualified, whatever happens in some later event, no matter how many people might like that candidate (as one might well like a “sore loser” or an impeached candidate). Admittedly, it’s convenient to hold up the results of question 1 (the recall) against prospect of question 2 (the replacement). But the fact that it’s one election, in my judgment, tells us little about the qualifications question. (There’s some intriguing debate about the line between “ballot access” and “qualifications,” as state qualifications rules seem to receive more deference from the Court, as n.9 of Anderson v. Celebrezze (1983) indicates.)

The Supreme Court has also rejected analogizing “one person, one vote” to state qualifications or ballot access rules. Consider Bullock v. Carter (1972), a filing fees case: “. . . nor does [Texas] quantitatively dilute votes that have been cast [citations to Reynolds v. Sims & to Wesberry v. Sims]. Rather, the Texas system creates barriers to candidate access to the primary ballot . . . .”

But, my money is on a swift dismissal on laches, and the academic dialogue, I think, continues for the next recall….

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