In 1868, when the Fourteenth Amendment (including its Section 3) was adopted, presidential elections looked something like this: Political parties gathered together in a convention to nominate candidates for president and vice president. State parties would then choose presidential electors… Continue reading
Rick H. links to a forthcoming article by Professors Michael Stokes Paulsen and Will Baude on Section 3 of the Fourteenth Amendment, and specifically the application of that section to former president Donald Trump. I am sure the paper will… Continue reading
Washington Post, January 5, 2016:
“Republicans are going to have to ask themselves the question: ‘Do we want a candidate who could be tied up in court for two years?’ That’d be a big problem,” Trump said when asked… Continue reading
This is the first in a few posts looking at litigation comparable to the issues in Moore v. Harper to see if any lessons can be learned from those areas. I started with the Takings Clause here. I’ll look… Continue reading
This is the first in a few posts looking at litigation comparable to the issues in Moore v. Harper to see if any lessons can be learned from those areas. I’ll start with the Takings Clause.
Lock-stepping is the sometimes-derided practice of construing a state constitution in “lock step” with the federal constitution. Derided, because the state constitution may well have an independent meaning rather than a meaning designed to mirror the federal constitution. The practice… Continue reading
Consider this language from the Illinois Constitution:
Every United States citizen who has attained the age of 18 or any other voting age required by the United States for voting in State elections and who has been a permanent… Continue reading
ELB readers may recall my post last year on Colorado General Assembly v. Salazar (2004). There, the Court, over three dissenting justices, denied cert in a Legislature Thereof Clause dispute under the Elections Clause in Colorado’s redistricting. A lot of… Continue reading
The top line takeaway of Moore v. Harper is this: the Supreme Court has slammed the door shut on the argument that the state constitution or state judiciary cannot constrain the state legislature exercising power under the Elections Clause.
But… Continue reading
Last week, the Supreme Court issued a decision in Haaland v. Brackeen regarding the constitutionality of the Indian Child Welfare Act. Hardly the stuff of election law. But two small parts of the opinion stood out to me. First, the… Continue reading
One argument raised by Alabama in its brief in Allen v. Milligan was that Section 2 is unconstitutional–at least, unconstitutional if Gingles were interpreted the way the trial court interpreted it. That prompted the bulk of concerned reaction in a… Continue reading
Let me offer something that may (?) be a bit (!) speculative (and which Jonathan Adler already hinted at elsewhere).
To start, I can’t help but look back at some of the statements made during oral argument about how… Continue reading
There will surely be more to discuss, but I wanted to flag these parallels in Chef Justice Roberts’ opinions.
First, from Shelby County v. Holder (2013):
Second, from Allen v. Milligan (2023):