All posts by Derek Muller

Secretary of State websites routinely list incorrect information about qualifications for federal office

On the heels challenges to federal candidates’ qualifications in places like Tennessee and North Carolina, I took a look at how states describe the qualifications for federal office. The results were quite disheartening. Secretaries of State routinely present erroneous information about the qualifications for federal office.

In its “Federal Qualifications and Responsibilities,” the Washington Secretary of State claims, “Except for the President and Vice President, all federal officials elected in
Washington must be registered voters of the state.” And for U.S. Representative, “Representatives are not required to be registered voters of their district, but must be registered voters of the state.” The Ninth Circuit in Schaefer v. Townsend has made it quite clear that such requirements are additional qualifications inconsistent with U.S. Term Limits, Inc. v. Thornton. Even worse, Washington law expressly provides, “The requirements of voter registration and residence within the geographic area of a district do not apply to candidates for congressional office. Qualifications for the United States congress are specified in the United States Constitution.”

In California, the Secretary of State explains, “Every candidate shall be at least 30 years of age, a U.S. citizen for nine years, and a resident of California on January 3, 2023, the date to be sworn into office if elected.” But the Constitution requires that no person shall be a Senator “who shall not, when elected, be an inhabitant of that state for which he shall be chosen.” “When elected” is not when sworn into office.

And over in Virginia, the Department of Elections alleges, “You have been a citizen of the United States for the past seven years on or before the date of being elected to office, Tuesday, November 8, 2022,” and “You will be twenty-five years of age on or before the date of being elected to office, Tuesday, November 8, 2022.” Neither of these are true. In both cases, Congress has allowed people who are underage or haven’t yet hit the citizenship requirement on Election Day to still serve in Congress, as long as they meet the qualifications by the time they present their credentials. (Joe Biden, for instance, was 29 when elected to the Senate, but turned 30 before he presented his credentials January 3, 1973.)

I haven’t done exhaustive research through these websites. And it’s hardly clear any candidate is relying on this information. But it’s troubling to see basic misstatements of federal qualifications pervading Secretary of State websites. Block quoting the Constitution is preferable to these summaries. It also makes me wonder what other inaccurate information might be lurking around these sites that, say, ordinary voters might rely upon. But that’s a topic for another investigation.

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Occam’s razor and election fraud

I’m hardly the first to think about the relationship between Occam’s razor and election fraud. But a recent movie release has prompted a lot of 2020 claims to resurface (again). As I explained to the Associated Press:

There’s no evidence a massive ballot harvesting scheme dumped a large amount of votes for one candidate into drop boxes, and if there were, it would likely be caught quickly, according to Derek Muller, a law professor at the University of Iowa.

“Once you get just a few people involved, people start to reveal the scheme because it unravels pretty quickly,” he said.

Absentee ballots are also verified by signature and tracked closely, often with an option for voters themselves to see where their ballot is at any given time. That process safeguards against anyone who tries to illegally cast extra ballots, according to Barry Burden, a University of Wisconsin-Madison political science professor and the director of the Elections Research Project.

“It seems impossible in that system for a nefarious actor to dump lots of ballots that were never requested by voters and were never issued by election officials,” Burden said.

From the reports I’ve seen, I’m amazed at how quickly even extremely small-scale ballot fraud, or even potentially-permissible ballot harvesting, is caught. Consider a scheme in Arizona in the 2020 primary, where two people handled a total of five ballots. Or six people in a local California election involved in the casting of four fraudulent votes. Or a recent plot in Philadelphia where 39 ballots were sent to a single post office box before they were detected (before they could be cast). Even the notorious North Carolina 9th Congressional District election in 2018 had likely fewer than 1000 fraudulent votes (albeit one of the largest episodes in recent history), and the scheme was stopped days after the election with gobs of witnesses, testimony, and evidence.

In short, even small-scale voting fraud operations appear to get exposed. Now, it’s entirely possible (and, frankly, non-falsifiable) that other fraud happens without being exposed. And it’s a reason I’m more sympathetic to prophylactic measures that get at some of the concerns that are tougher to detect.

But think about the size and scope of the allegations here. Fraud at scale is impossible to keep a secret. The notion that thousands of political operatives across several states handling hundreds of thousands of ballots, and able to so expertly cover their tracks in one of the greatest conspiracies in American history, defies logic. It’s a mission that would make Seal Team Six look like a kindergarten classroom. Respectfully, no political campaign in North America is remotely this competent. Add to it the fact that the rumors swirling about for months (not approaching years), so far, has yielded nothing that has enticed even the most aggressive prosecutor in any of many states.

And so, to Occam’s razor: there are much simpler explanations than a vast interstate extensive conspiracy to commit fraud at scale, from innocent reasons, to misunderstanding data, to, frankly, willfully misrepresenting the facts to profit off the public.

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Eighth Circuit panel finds no threat of enforcement of certain provisions of the Minnesota Fair Campaign Practices Act

From the summary of the decision in Minnesota RFL Caucus v. Freeman:

The relevant section of the Minnesota Fair Campaign Practices Act – Minn. Stat. Sec. 211B.02 – prohibits a candidate from falsely stating that a candidate or ballot question has the support or endorsement of a major political party; the statute further provides that county attorneys may prosecute violations of the statute. Plaintiffs contend the statute violates their First Amendment rights, and they sued four Minnesota county attorneys with authority to criminally prosecute violations and asked the district court for a preliminary injunction to prohibit the county attorneys from enforcing the statute pending disposition of the case; the district court denied their motion, and plaintiffs appeal the denial of the preliminary-injunction motion. The district court did not err in denying the motion as the defendants had not enforced the statute and have not threatened to do so and were entitled to Eleventh Amendment immunity.

Plaintiffs brought a challenge alleging a First Amendment violation. But the evidence showed that the county attorneys testified “that they never have initiated civil or criminal proceedings for violations of § 211B.02, that they are ‘not currently investigating’ any such violations, and that they have ‘no personal intention’ to commence proceedings.” That was enough for the Eighth Circuit to conclude that a preliminary injunction was inappropriate. The court holds that Ex parte Young offers an independent barrier to plaintiffs seeking relief, beyond a claim where a plaintiff has standing and a claim is ripe for judicial review: those cases in which an official “has neither enforced nor threatened to enforce the statute challenged as unconstitutional.”

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Did an 1868 Act change who’s responsible for adjudicating qualifications for Congress?

The Fourth Circuit heard oral argument in Cawthorn v. Amalfi today, a challenge to Representative Madison Cawthorn’s eligibility under the Fourteenth Amendment and whether North Carolina has the power to exclude him from the ballot. The News & Observer has a story about it, and I won’t rehash the details here (Disclosure: I filed an amicus brief in support of no party in the case.)

But one point I wanted to write about. The challengers opened with a citation to an 1868 Act (multiple times, before being interrupted to get to some other issues that the presiding judge wanted to hear about), and returned to it in rebuttal, an issue that had been hardly mentioned in some briefing before but apparently became a framing point at oral argument. The argument goes, Congress empowered the states in this act to disqualify insurrectionists from election to Congress.

This argument makes several mistakes.

Here’s the text of the Act, 15 Stat. 73, enacted June 25, 1868 (with an emphasis on Section 3):

Continue reading Did an 1868 Act change who’s responsible for adjudicating qualifications for Congress?
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The Parliamentarians advised Vice President Mike Pence on January 6–not the Parliamentarian

Back in 2021, I traced the language that Vice President Mike Pence used when introducing certificates for the counting of electoral votes on January 6 (into January 7). I quoted the language, as was recorded in the Congressional Record:

Hearing none, this certificate from Alaska, the Parliamentarian has advised me, is the only certificate of vote from that State that purports to be a return from the State and that has annexed to it a certificate from an authority of the State purporting to appoint and ascertain electors.

I recently went back to the Congressional Record from that day, and I found it had a number of corrections made last year, including a series relating to the word “Parliamentarian”:

Hearing none, this certificate from Alaska, the Parliamentarians have advised me, is
the only certificate of vote from that State that purports to be a return from the State and that has annexed to it a certificate from an authority of the State purporting to appoint and ascertain electors.

“Parliamentarian has advised” turned into “Parliamentarians have advised me.”

You can go watch Pence on C-SPAN, and you can hear Pence say “Parliamentarians’ve advised me” (or perhaps “Parliamentarians advise me”). So the original draft was, truly, a typo.

It’s an intriguing if picayune detail. In this special joint session of Congress, both Parliamentarians from the House and the Senate have to be on the same page. The President of the Senate typically, and understandably, would rely on the Parliamentarian of the Senate. But as an institutional matter, it seems hard for one chamber’s Parliamentarian to want one thing and another’s another. It could create material problems in handling objections under the Electoral Count Act if there was leadership friction between the two chambers.

And so, there has been, and continues to be, agreement between the parliamentarians moving through this session. The chambers continue to operate separately even in this joint session–separately, but in harmonious agreement. It’s the kind of thing exceedingly difficult to write into a statute (like the Electoral Count Act or any future amendments), but as a matter of institutional practice remains exceeding important.

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The election side of the Florida legislature’s bill to remove Disney’s special tax district

The Wall Street Journal details an interesting wrinkle in the Florida legislature’s effort to end Disney’s special tax district:

Ending the district could be a complicated process, and is likely to provoke a legal battle that could prolong the public dispute between Disney and Mr. DeSantis. According to a bill analysis by legislative committee staff, dissolving the district could require approval by a majority of the resident electors or landowners of the district.

Reedy Creek’s two residential communities, Bay Lake and Lake Buena Vista, have about 50 permanent residents in total, most of them Disney employees. As primary landowner in the district, Disney controls most of the votes to elect Reedy Creek’s board of supervisors, giving the company strong influence over any vote within the community.

The bill analysis points out that existing Florida law requires, “In order for the Legislature to dissolve an active independent special district created and operating pursuant to a special act, the special act dissolving the active independent special district must be approved by a majority of the resident electors of the district or, for districts in which a majority of governing body members are elected by landowners, a majority of the landowners voting in the same manner by which the independent special district’s governing body is elected.”

These special purpose districts allow for an exception to “one person, one vote,” sometimes known as “one acre, one vote,” approved by the Supreme Court in cases like Salyer Land Co. v. Tulare Lake Basin Water Storage Dist. (1973). You can check out the Reedy Creek charter, which provides, “At all elections of supervisors, each landowner shall be entitled to one (1) vote in person or by written proxy for every acre of land and for every major fraction of an acre owned by him in the District.”

The bill’s text, however, opens with the proviso, “Notwithstanding” existing Florida law, any independent special districts created before 1968 and not subsequently reestablished are dissolved as of June 1, 2023. (Five other special districts would also be dissolved.)

I don’t know how the legal debate on this topic will play out, except to note that it’s one component of the future skirmish, highlighted by this exchange reported in the Tampa Bay Times:

Sen. Linda Stewart, D-Orlando, expressed doubt about the legality of the proposal, arguing state law only allows special districts to be dissolved with the consent of the government of the district.

Republicans have said that argument holds little water.

“The bill creates new law,” said Rep. Randy Fine, R-Palm Bay, the House bill sponsor. “If you don’t understand that every bill we pass changes existing statute, I’d be looking for a refund on my law degree.”

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Can only Congress develop procedures to evaluate disqualification of congressional candidates under Section 3 of the Fourteenth Amendment?

There’s a robust legal debate happening outside of the pure ballot access issues in the disqualification challenges to Representative Madison Cawthorn and Representative Marjorie Taylor Greene, among other challenges. Here’s Professor Josh Blackman and Professor S.B. Tillman in a New York Times op-ed:

An 1869 case concerning Hugh W. Sheffey is instructive for the Jan. 6 litigation and how courts might see things today. Mr. Sheffey took an oath to support the Constitution but later served as a member of the Confederate Virginia legislature, thereby actively supporting the Confederacy.

After the war, he served as a state court judge. As Judge Sheffey, he presided over the trial and conviction of Caesar Griffin for shooting with an intent to kill. Later, Mr. Griffin challenged his conviction in federal court. He argued that Section 3 should have disqualified Mr. Sheffey from serving as judge. Griffin’s case, as it is known, was heard on appeal by the federal circuit court in Virginia. Salmon P. Chase, the chief justice of the United States and an appointee of President Abraham Lincoln, presided over the appeal. Chief Justice Chase ruled against Mr. Griffin, finding that Section 3 did not disqualify Judge Sheffey, despite the fact that he had taken an oath to support the U.S. Constitution and that it was “admitted,” as the case stated, that he later committed a Section 3 disqualifying offense.

Chief Justice Chase reasoned “that legislation by Congress is necessary to give effect to” Section 3 of the 14th Amendment — and that “only” Congress can enact that legislation. Chief Justice Chase added that the exclusion of disqualified office holders “can only be provided for by Congress.” Congress must create the procedure that would determine if a defendant violated Section 3. Section 5 of the 14th Amendment emphasizes this principle: Congress, it states, “shall have the power to enforce, by appropriate legislation, the provisions of this article.”

In short, Griffin’s case teaches that in legal terms, Section 3 is not self-executing — that is, Congress must establish, or at least authorize, the process that affords accused insurrectionists an opportunity to contest the allegations brought against them.

And here’s Professor Gerard Magliocca over at Balkinization:

I think that Blackman and Tillman’s conclusion is incorrect, or is at least too broad.

First, Chief Justice Chase’s opinion in Griffin is not persuasive, as Blackman and Tillman say. I go into this at length in my law review article. For one thing, the Chief Justice concluded that Section Three was self-executing in the treason proceedings against Jefferson Davis but was not self-executing in the habeas corpus proceeding for Caesar Griffin. He did not explain this distinction in his Griffin opinion, and the result is that we really don’t know what his position was. There is also nothing in the text or original public meaning of Section Three to support Chase’s reading in Griffin. He just advanced a grab bag of policy arguments, which reflected his opposition to Section Three when the proposal was before Congress.

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Some Article I questions arising out of the federal court’s opinion in Greene v. Raffensperger

Rick linked to the coverage of the federal district court’s decision in Greene v. Raffensperger, which allows an state administrative hearing over Representative Marjorie Taylor Greene’s qualifications to proceed.

I have been critical of these efforts for states to patrol qualifications or to prematurely adjudicate qualifications. I was critical of the federal district court that blocked a challenge to Madison Cawthorn, because, in my judgment, a federal court has no place in determining the applicability of the 1872 Amnesty Act.

Even if you believe the state has the power to review qualifications (again, which I don’t), the decision in Greene has a number of pretty significant problems. It turns out these short-fuse decisions with light briefing on a preliminary injunction standard involving major, novel questions of constitutional law may have a downside….

Continue reading Some Article I questions arising out of the federal court’s opinion in Greene v. Raffensperger
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Republican, Democratic fundraising for election litigation tops $82 million in 2021

I’ve chronicled how the 2015 “Cromnibus” bill appears to have contributed to a sharp increase in spending on election litigation. The bill allowed additional contributions to “election recounts and contests and other legal proceedings,” above and beyond individual candidate campaign contribution limits.

The 2021 totals are in, and the Federal Election Commission reports more than $82 million in contributions to accounts of national party committees. The breakdown:

DNC: $33,495,837

RNC: $6,448,304

DSCC: $5,564,770

NRSC: $8,424,016

DCCC: $14,165,452

NRCC: $14,003,120

Democratic National Party Totals: $53,226,059

Republican National Party Totals: $28,875,439

[other: $5,551]

Grand Total: $82,107,050

It’s worth noting that in 2019, the last off-year cycle, the parties collected just over $32 million, so this represents a massive off-cycle bump.

And it’s worth noting that in the presidential election year of 2020, the parties collected $85 million.

The Democratic groups have been at a 2-to-1 advantage this cycle. In 2019-2020, Republican-affiliated groups edged out Democratic-affiliated groups, $64 million to $53 million.

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With one simple sentence, Congress could (mostly) end the “independent state legislature doctrine”

The Elections Clause provides, “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”

Here, the (hypothetical) Symmetrical Elections Act of 2022:

Except where otherwise inconsistent with the Constitution of the United States or with Federal law, the times, places, and manner of holding elections for Senators and Representatives shall be the same as for the most numerous branch of the state legislature, including the times, places, and manner set forth in the Constitution, laws, and regulations of the state, as authoritatively interpreted by the courts of the state.

Three caveats to this otherwise simple solution.

First, it excludes presidential elections. The Supreme Court has said in the past that the power of Congress over presidential elections is broad. But there does remain a formal textual constitutional difference between the two (even if some laws do extend to regulation of both presidential and congressional elections), and there are additional tricky things about presidential elections (for instance, holding at-large winner-take-all elections for presidential electors; and how primaries interact with the general election, as presidential primaries are different in kind than other primary elections). This proposed statute could still lead to remaining disputes about presidential elections under the Presidential Electors Clause. It would, of course, exert significant pressure on states to conform their presidential elections to match everything else, but exerting power in one area of elections and hoping states follow along elsewhere hasn’t always worked out as expected. But, it would end all redistricting disputes arising under the doctrine, among other things.

Second, while a simple solution, it would entirely upend the election codes of all 50 states. I don’t know any state that has perfect symmetry between congressional and state elections (e.g., signature petition requirements, filing requirements and deadlines, etc.). From Nebraska’s nonpartisan state legislature to Vermont’s primary petition signature requirements, some rules everywhere would change. While there’s a large amount of existing symmetry, it would really require every state to revisit its election code quickly.

Third, it might invite federal courts (including the United States Supreme Court) to review questions of state law. I’m not sure how to puzzle through the jurisdictional questions, and it might some refining. A rule like this would seem to incorporate state law into federal law, and maybe federal courts would simply Erie-guess their way through these problems.

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Arizona’s new proof of citizenship law treats presidential & congressional voters differently, a constitutional distinction in federal power over elections

Rick linked to an NPR story on Arizona’s HB 2492, and this line caught my eye: “Under HB 2492, if elections officials can’t find evidence that a federally registered voter is a U.S. citizen, that voter can’t vote by mail, or cast a vote in presidential elections.” It picks up on a distinction in federal power over elections, an issue that’s lurked under the surface of a variety of election laws over the last hundred years but may return to the surface–the difference between congressional and presidential elections.

Continue reading Arizona’s new proof of citizenship law treats presidential & congressional voters differently, a constitutional distinction in federal power over elections
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“How does a movie win a best picture Oscar? There’s a method to the voting madness”

One last post as I wrap up regular blogging this week, from the Los Angeles Times:

Also called instant-runoff voting and ranked-choice voting, the preferential ballot is an electoral system used in places around the world — including in New York City — for elections with more than two candidates. Each voter ranks his or her choices, rather than choosing only one to be the winner.

The thinking behind the system is to ensure that each ballot will have maximum influence, putting a premium on the choices that voters rank near the top.

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“Trump backers push election change that would make counting slower, costlier and less accurate”

Zach Montellaro at Politico:

Trump supporters are pushing to prohibit machine counting of ballots in future elections around the country, which election officials say could make vote-counting slower, more expensive and — most importantly — less accurate.

Legislators in at least six states this year have introduced proposals to prohibit the use of ballot tabulating machines. Local jurisdictions in Nevada, New Hampshire and elsewhere have also been considering similar measures. The proposals stem from baseless conspiracy theories stoked by former President Donald Trump since the 2020 election, in which he and others contended that election machines around the country were hacked and votes were flipped.

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“‘A Mystifying and Distorting Factor:’ The Electoral College and American Democracy (Reviewing Jesse Wegman, ‘Let the People Pick the President: The Case for Abolishing the Electoral College’)”

A book review from Kate Shaw, forthcoming in the Michigan Law Review:

As the 2020 presidential election made clear, the Electoral College is a profoundly dangerous institution. American constitutional democracy survived that election and its aftermath, emerging battered and bruised but still standing. But the Electoral College is in large part to blame for how close it came to a fatal wound.

That’s true as a technical matter. Joe Biden won the national popular vote by approximately seven million votes and prevailed in the Electoral College 306–232. But just forty-four thousand more Trump votes across Arizona, Georgia, and Wisconsin would have resulted in a 269–269 tie in the Electoral College. If that had happened, the House of Representatives, voting by state delegation, would likely have handed Donald Trump the presidency. That would have marked the third time in twenty years—and the second time in two cycles—that our anachronistic system of presidential selection produced a president who did not win the national popular vote. Following the election, President Trump worked ruthlessly to convert loss into victory, exploiting pressure points and ambiguities in the protracted and complex process, partly constitutional and partly statutory, that we refer to collectively as the Electoral College. Trump’s campaign filed numerous lawsuits designed to delay state certification beyond the statutory “safe harbor” deadline, after which a state’s slate of electors is no longer conclusive in the event of a dispute. Trump supporters attempted to disrupt the required meetings at which each state’s electors actually cast their votes. Ersatz Trump “electors” purported to cast competing votes in some states, seeking to lay the groundwork for later challenges to official state slates. Trump pressured state election officials to “find” additional votes for him and reportedly urged Vice President Pence to refuse to count electoral votes from a number of states. Trump loyalists in the Department of Justice sought to push state legislatures to take the radical step of discarding state returns on the basis of spurious fraud claims and appoint Trump electors themselves. Most significantly, what became the January 6, 2021, attack on the Capitol was an effort to disrupt the final event in the Electoral College timeline: a joint session of Congress over which the vice president presides.

It is tempting to dismiss these events as largely attributable to the identity of the incumbent president and not as fundamentally connected to the Electoral College. Certainly, any electoral system can be targeted by a sufficiently determined aspiring autocrat. But as Jesse Wegman’s Let the People Pick the President: The Case for Abolishing the Electoral College makes clear, not only questions of democratic legitimacy, but also the specter of chaos and manipulation, have stalked the Electoral College from the beginning. Wegman’s important book is an urgent indictment of the Electoral College; one hopes that its urgency is not lost as President Trump’s tumultuous departure from office fades from view. While Trump was emphatically wrong in the particulars of his attack on the 2020 election, there is something deeply broken in our system of presidential selection. Perhaps an unexpected legacy of Donald Trump’s presidency will be finally galvanizing us to fix it.

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