All posts by Derek Muller

More on the legal (and practical) issues around a presidential candidate’s withdrawal

primaries

Rick H. gets the heart of the issues right in his early post. I want to highlight some more wrinkles (but I put the odds of Biden stepping down much lower than 50%).

First, Rick is right that the DNC rules for “pledged” candidates really just a pledge and not binding. Per IX.E.3.d, “All delegates to the National Convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.” Likewise, IX.C.7.e, “Eligible delegates may vote for the candidate of their choice whether or not the name of such candidate was placed in nomination.” (Rick rightly notes, “That would be true even if Biden stayed in the race,” but this is not a politically likely option.)

Second, in the event of a vacancy in the ticket after the convention, the rules are a little different: “Filling a Vacancy on the National Ticket: In the event of death, resignation or disability of a nominee of the Party for President or Vice President after the adjournment of the
National Convention, the National Chairperson of the Democratic National Committee shall confer with the Democratic leadership of the United States Congress and the Democratic Governors Association and shall report to the Democratic National Committee, which is authorized to fill the vacancy or vacancies.”

Third, the DNC announced it would hold a “virtual roll call” before the convention. That was when there was some doubt about Ohio’s ability to amend its ballot access rules. But perhaps more interestingly, even though Ohio has amended its law, it appears the DNC might worry that other deadlines in other states might be a problem, or in states where a “provisional certification” previously was sufficient for a presumptive nominee that might be legally challenged in this election. Regardless, it’s not clear how this would work in the event of a contested convention, and the DNC might have to backtrack if that’s the case.

Fourth, “superdelegates” (or “automatic delegates”) are eligible only on the second ballot in the event no candidate has a pledged majority the first time around (IX.C.7.b). So the ground could shift from the first to the second ballot separate and apart from any jockeying after the first ballot and candidacies.

Fifth, and finally, recall that New Hampshire violated the DNC’s rules by going early with its primary. In eras of consensus (think to the 2008 Michigan and Florida fiasco, resolved only once Barack Obama secured a majority of the delegates and those states’ rule-breaking delegations could be seated), there is little dispute when some states violate party rules. But in a contested convention, the decision whether to seat a batch of rule-breaking delegates will be much more fraught.

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“America needs a bigger House”

legislation and legislatures

In the Detroit News, I have this op-ed with Michigan state representative Andrew Fink. It begins:

Michigan’s population grew by 2% in the last decade and now has more than 10 million inhabitants. But those Census figures couldn’t stop the state from losing a seat in the House of Representatives, dropping to 13 members.

When states grow in population, they shouldn’t lose influence in Washington. It’s time to expand Congress to represent the interests of a growing national population by amending the Constitution.

Representative Fink has introduced a joint resolution in the Michigan legislature to ratify the last pending amendment of James Madison, which would guarantee a representative in the House for every 50,000 people. (Fink is the first representative to introduce such legislation in any state in recent memory, but perhaps a reader with a longer memory can think of another instance!) That would expand the size of the House from 435 to around 7000. And it can be done without any congressional action.

I’m sure some readers would strongly oppose such a measure or think of it as absurd. We defend reasons to think why much more robust legislative oversight and a House much more closely connected to the people would be a good thing. (Professor Danielle Allen has been among those writing more recently on the topic and in defense of it, such as in this Washington Post piece.)

Congress approved the amendment in 1789, and 11 states ratified it. It would take 27 more for it to become an amendment to the Constitution. But if even one state ratified, we think it might spur serious reflection in Congress about what the appropriate size of the House ought to be–perhaps less than 7000, but something that would spur Congress to react.

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On the Fulton County certification lawsuit

election administration

Rick H. posts the Washington Post story about the lawsuit from an official trying to guarantee the right to refuse to certify election results in Fulton County, Georgia. I confess, I have a somewhat different reaction to the litigation, a little different from the concerns about what the litigation might yield.

When I spoke to Rolling Stone about this litigation earlier this month, here was my take:

Adams’ lawsuit could also backfire and prove that the certification process — a previously mundane and “ministerial” task that election deniers have hijacked in recent years — is not up to the discretion of officials like Adams, says Derek Muller, a professor at Notre Dame Law School who has written about the issue of local certification of elections.

“[Adams] had no basis in law to refuse to certify the results,” Muller tells Rolling Stone and American Doom. “If anything, this lawsuit is likely to result in a legal decision that shuts down claims like hers well before the election in Georgia.”

You can see the complaint here. The complaint rightly notes that one portion of the Election Code empowers the Board to “inspect systematically and thoroughly the conduct of primaries and elections . . . to the end that primaries and elections may be honestly, efficiently, and uniformly conducted.” The complaint also rightly notes elsewhere that the Code allows refusal to certify in some circumstances: “If, upon consideration by the superintendent of the returns and certificates before him or her from any precinct, it shall appear that the total vote returned for any candidate or candidates for the same office or nomination or on any question exceeds the number of electors in such precinct or exceeds the total number of persons who voted in such precinct or the total number of ballots cast therein, such excess shall be deemed a discrepancy and palpable error and shall be investigated by the superintendent.”

But the complaint tries to conflate the two things. It asserts that if there is some dispute about the ability to “inspect” the election, then the board is empowered to refuse to certify and investigate. That’s not what the Code allows. The board might have power in other circumstances (e.g., in the months and years ahead of an election) to develop procedures about how to inspect conduct. But when it comes to certification, the scope of discretion is quite limited. To borrow an analogy I used in Election Subversion and the Writ of Mandamus:

Certifying an election is something like an automotive worker at the end of an assembly line, affixing windshield wiper blades to a vehicle. That worker might be able to stop the assembly line if the car has only three tires or if the doors are missing. But the worker is not permitted to stop the assembly line to investigate whether the inmost parts of the engine were fitted together to that worker’s satisfaction. Other workers are responsible for other stages in the process. There are other checks in the process—other managers and other supervisors tasked with those responsibilities; workers must know their roles and what responsibilities reside with someone else.

This complaint, filed well before Election Day, may actually serve to establish the kind of precedent that would help expedite certification in the event that disputes later arose, because I view it as exceedingly unlikely that a court grants the relief the plaintiff here seeks. And if there’s an affirmative order from Georgia courts well before Election Day that certification is a largely ministerial task and that refusal to certify can only occur under limited, enumerated terms, it would make any disputes this fall less likely and any resolution much faster. Perhaps I’m wrong, of course, and a court issues relief for the plaintiff or an adverse judgment doesn’t deter later actors. But I wanted to suggest it as a possible alternative way forward.

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California Supreme Court blocks tax initiative from ballot as an unconstitutional “revision”

voter initiatives

Unanimous decision in Legislature of the State of California v. Weber. From the introduction:

Petitioners — the Legislature of the State of California, Governor Gavin Newsom, and elector and former Senate President Pro Tempore John Burton — filed this original proceeding seeking a writ of mandate or prohibition to bar the Secretary of State (Secretary) from placing an initiative measure on the November 2024 general election ballot. The measure at issue has been designated Attorney General Initiative No. 21-0042A1 and Secretary of State Initiative No. 1935, and has been named the “Taxpayer Protection and Government Accountability Act” by its drafters. We refer to it as the “TPA.” The petition primarily contends that the TPA is invalid because it attempts to revise the California Constitution via citizen initiative. Petitioners also argue that the TPA is invalid because it would seriously impair essential government functions. Petitioners named Thomas W. Hiltachk, the proponent of the challenged measure (Proponent), as real party in interest.

…

“We stress initially the limited nature of our inquiry. We do not consider or weigh the economic or social wisdom of general propriety of the initiative.” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 219 (Amador Valley).) The only question before us is whether the measure may be validly enacted by initiative. After considering the pleadings and briefs filed by the parties and amici curiae as well as the parties’ oral arguments, we conclude that Petitioners have clearly established that the challenged measure would revise the Constitution without complying with the appropriate procedure. The changes proposed by the TPA are within the electorate’s prerogative to enact, but because those changes would substantially alter our basic plan of government, the proposal cannot be enacted by initiative. It is instead governed by the procedures for revising our Constitution. We therefore issue a peremptory writ of mandate directing the Secretary to refrain from taking any steps to place the TPA on the November 5, 2024 election ballot or to include the measure in the voter information guide.

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Who can sue in federal court to enforce the date of holding presidential elections (and perhaps by extension some provisions of the Electoral Count Reform Act)?

electoral college, Supreme Court

The Republican National Committee sued Nevada last month in federal court in Nevada in RNC v. Burgess. The complaint alleges, among other things, that Nevada accepts mail ballots received up to three days after Election Day, even without a postmark, and these ballots are presumed to have been postmarked on or before Election Day. The RNC is challenging that this law violates, among other things, 3 U.S.C. § 1, “The electors of President and Vice President shall be appointed, in each State, on election day,” which is “the Tuesday next after the first Monday in November.” (It is also raising related challenges for congressional elections.)

There is a question of the merits of this argument, but I am not going to write about that.

Instead, this is a very long Fed Courts-y post, so please bear with me. But the core question at issue in some recent and interesting briefing is, who, if anyone, can enforce this provision in the federal courts? And, perhaps more broadly, under what circumstances could someone enforce this and other provisions of the Electoral Count Reform Act?

Continue reading Who can sue in federal court to enforce the date of holding presidential elections (and perhaps by extension some provisions of the Electoral Count Reform Act)? →
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Citing First Amendment, Michigan Supreme Court narrows construction of voter intimidation statute after 2020 robocall prosecution

campaigns, cheap speech

People v. Burkman and People v. Wohl, decided yesterday by the Michigan Supreme Court, a 5-2 decision. The majority narrowed construction of the statute and remanded for further consideration. The dissenting opinions, which concurred in part, would have held that the conduct fell outside the scope of the statute. The core of the holding is that the criminal statute still extends to “proscribe that speech only if it is intentionally false speech that is related to voting requirements or procedures and is made in an attempt to deter or influence an elector’s vote.” On remand, the court will decide whether the facts of the case fit that here. From the opinion (lightly revised):

Continue reading Citing First Amendment, Michigan Supreme Court narrows construction of voter intimidation statute after 2020 robocall prosecution →
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Could the Court’s unanimous decision in FDA v. AHM upend some federal election litigation?

court decisions, Supreme Court

In order to sue in federal court, a plaintiff must have “standing,” an actual or imminent concrete and particularized injury in fact caused by the defendant and redressable by a federal court. Many lawsuits are thrown out for lack of standing. In particular, and of particular relevance in election cases, many lawsuits are thrown out because the plaintiffs allege a “generalized grievance,” an injury shared in common with the public and not “particularized.” In federal court, an increasing number of plaintiffs have been non-profit organizations alleging a distinct harm to them, and they have survived the standing inquiry.

But the Supreme Court’s decision today in Food and Drug Administration v. Alliance for Hippocratic Medicine might have just disrupted this litigation path in election cases.

Continue reading Could the Court’s unanimous decision in FDA v. AHM upend some federal election litigation? →
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Illinois court issues permanent injunction for law that changed ballot access rules mid-election

ballot access

Following up on my earlier posts here and here, the order in Collazo v. Illinois State Board of Elections is here. The court found that strict scrutiny was the appropriate standard of review and that it failed; and even under the lesser Anderson-Burdick standard of reasonableness, it failed as an arbitrary rule. (The law can take effect for future elections.)

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CNN admits it’s using different debate criteria for Biden, Trump than Kennedy

federal election commission

Joe Biden and Donald Trump are two of the least popular presidential candidates of all time. It’s no surprise that an independent presidential candidate (with a famous last name) is getting outsized attention among prospective voters. But there appears to be a strong effort to box Robert F. Kennedy, Jr. from the debate stage.

As I highlighted last month right when CNN made its announcement, CNN’s “objective” criteria (the term used in federal law) to stage a debate included the requirement that “a candidate’s name must appear on a sufficient number of state ballots to reach the 270 electoral vote threshold to win the presidency prior to the eligibility deadline.” As I noted, that would exclude both Biden and Trump, as neither is the party’s nominee nor has any paperwork been filed on behalf of either candidate in any state.

Recent coverage wondering if Kennedy might make the debate stage occasionally highlights this disparity, as Kennedy’s ballot access remains fairly successful but far from certain. A New York Times piece today notes (with a somewhat playful headline, “The Big Hurdle Between R.F.K. Jr. and the Debate Stage (It’s Not a Poll)”):

The Kennedy campaign has complained that the ballot access requirement to participate had set an unfair double standard for Mr. Kennedy, asserting that neither Mr. Biden nor Mr. Trump would qualify under those rules because they have not been officially nominated by their respective parties. Amaryllis Fox, Mr. Kennedy’s campaign manager, has said that “the 270 threshold is nonsensical.”

In a statement, CNN rejected that framing, saying that “as the presumptive nominees of their parties both Biden and Trump will satisfy” the ballot access requirement, adding that “as an independent candidate, under applicable laws R.F.K. Jr. does not.”

From another statement by CNN:

The law in virtually every state provides that the nominee of a state-recognized political party will be allowed ballot access without petitioning,” a CNN spokesperson said in a statement Wednesday. “As the presumptive nominees of their parties both Biden and Trump will satisfy this requirement. As an independent candidate, under applicable laws RFK Jr. does not. The mere application for ballot access does not guarantee that he will appear on the ballot in any state.”

This is an overt acknowledgement from CNN that it is not following its promulgated “objective” criteria. Instead, for Biden and Trump, it is altering the criteria, to allow a “presumptive nominee” (not a candidate), and to say that if these individuals “will satisfy” the requirement they qualify (not a present qualification). It’s a reason (as my earlier post points out) why the Commission on Presidential Debates scheduled its debates when it did and set the criteria as it did.

Kennedy has filed an FEC complaint to this effect. But it remains to be seen how the FEC will respond.

(It’s worth noting there is a polling requirement that Kennedy must separately meet. He has met 3 of the 4 polling requirements and might be able to meet the last one in the next several days.)

It’s no surprise that the major party candidates do not want to share the stage with a third candidate. Jimmy Carter didn’t want John Anderson on stage. After Ross Perot appeared on the debate stage in 1992, the CPD raised the polling threshold to appear from 5% to 15%. Biden and Trump would be happy to debate one another without Kennedy, I’m sure. And there are criteria that could have been designed to increase the likelihood of that happening, without this sort of error of making a standard that the staging network has to modify for two of the candidates.

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Washington state law cannot bar felons from running for president

ballot access

This piece, by a columnist at the Seattle Times, is suddenly attracting terrific attention. It notes that Washington law allow someone “to challenge the right of a candidate to appear on the general election ballot after a primary” “Because the person whose right is being contested was, previous to the election, convicted of a felony by a court of competent jurisdiction, the conviction not having been reversed nor the person’s civil rights restored after the conviction.”

States routinely have such laws on the books, and they often do not clarify whether they apply only to state offices or to federal and state offices. But because states are categorically prohibited from adding qualifications to congressional offices after U.S. Term Limits, Inc. v. Thornton, it’s a reason to construe such statutes as applying to state offices. (Minnesota did so in 1950, for instance, in determining that its bar on ex-felons from holding office did not extend to congressional candidates.) But more generally, states cannot add qualifications to presidential candidates, either.

Continue reading Washington state law cannot bar felons from running for president →
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“The board of official canvassers . . . is liable to err in overestimating its powers.”

election administration

In light of the most recent election certification dispute in Georgia that Rick H. linked to earlier this week, here’s a relevant quotation from the Ruling Case Law (1915)–which suggests there is nothing new under the sun:

The board of official canvassers to whom the boards of election of the several divisions return their certificate showing the number of votes cast for each candidate, is liable to err in overestimating its powers. Whenever it is suggested that illegal votes have been received or that there were other fraudulent practices at the election, it is apt to imagine that it is its duty to inquire into these alleged frauds and to decide on the legality of the votes. Its duty, however, is almost wholly ministerial—to take the returns as made from the different voting precincts, add them up, and declare the result. Questions of illegal voting and fraudulent practices are passed on by another tribunal. The canvassers are to be satisfied of the genuineness of the returns, that is, that the papers presented to them are not forged and spurious, that they are returns, and are signed by the proper officers; but when so satisfied they may not reject any returns because of informalities in them or because of illegal and fraudulent practices in the election. The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of the voting. All other questions are to be tried before the court or other tribunal for contesting elections or in quo warranto proceedings. And so such a board cannot set up the illegality of the election or of the votes cast thereat as ground for resisting mandamus brought to compel it to perform its duty and canvass the returns, and the court has no jurisdiction to grant an order to have the ballot boxes placed at the disposal of the board’s counsel, for the purpose of enabling it to plead properly to the petition for mandamus. . . .

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A Trump-Rubio ticket is possible, with some Twelfth Amendment wrinkles

electoral college

The New York Times recently focused on the potential vice presidential candidacy for Senator Marco Rubio, the latest in a long string of earned media Apprentice-style articles in outlets discussing the very public, very slow airing of trial balloons of various vice presidential candidacies from Mar-a-Lago. But with recent pieces there and elsewhere focusing on the legal aspects of his candidacy, I wanted to highlight the potential issue.

Continue reading A Trump-Rubio ticket is possible, with some Twelfth Amendment wrinkles →
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The long shadow of the Elections Clause

redistricting, Supreme Court

Rucho v. Common Cause and Alexander v. South Carolina State Conference of the NAACP both involved congressional redistricting. Each took place, ostensibly, under Article I, Section 4, Clause 1 of the Constitution, the Elections Clause.

From Rucho, “Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering.” Later, “The only provision in the Constitution that specifically addresses the matter assigns it to the political branches.” And elsewhere, “As noted, the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause,” and, “We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open.” Those quotations are just a few of the mentions of the Elections Clause.

In Alexander, the majority opinion begins, “Redistricting constitutes a traditional domain of state legislative authority. See Moore v. Harper, 600 U. S. 1 (2023); see also U. S. Const., Art. I, §4, cl. 1.” (Justice Thomas’s concurring opinion dedicates several pages to the Elections Clause–more on that for a later post.)

Of some interest is framing these cases as an Elections Clause issue to start. One would assume that if a challenger showed up in federal court with a partisan gerrymandering or state gerrymandering challenge to a state legislative map, county commission map, or local school board map, one would reach the same result. But there wouldn’t be the Elections Clause framing, which helps the Court ensure that state legislatures have primary responsibility alongside Congress, and the federal courts (by implication) are left out of the process. Each time the Court takes a federal congressional case as a vehicle to address an issue of election that that likely is meant to have broader applicability, and each time it uses the Elections Clause as a partial justification for the result it reaches, the Elections Clause casts a much longer shadow over election law that one might otherwise anticipate.

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Illinois state court blocks new law that changed ballot access rules after primary

ballot access

Back on May 5, I highlighted a new election law in Illinois that changed the rules for ballot access after the primary election, blocking a number of candidates from obtaining major party ballot access through the alternative “slating” route that they were relying on. (I also noted the unusual lack of media coverage, and since then, there hasn’t been much more, but this AP story did cover it, and the president of the League of Women Voters of Illinois had this op-ed in the Chicago Sun-Times critiquing the law.)

Yesterday afternoon, a state court judge issued a preliminary injunction blocking enforcement of the law. You can see early coverage from the Chicago Tribune, the Center Square, and the Daily Northwestern. (And as with last time, no other apparent media coverage outside the state of Illinois.) Of note from the Daily Northwestern:

Attorney Hal Dworkin, who represented the Illinois Attorney General, argued the preliminary injunction could set several negative precedents for the Illinois government. For one, several previous court cases have applied strict scrutiny only when a change in electoral policy completely negated the election results, Dworkin said. 

The case may well be appealed, and this is only a preliminary injunction (final hearing is June 3), but it’s a swift reprisal in a state court, using (it appears) a state constitution’s “right to vote” provision, against a law enacted just a couple of weeks ago. We’ll see if we get a written order in the near future and how that might be used in future litigation.

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