All posts by Derek Muller

CNN [UPDATE: and ABC] will host presidential debate with Biden, Trump, but some questions about its criteria

campaign finance

Last November, I blogged some questions about the future of the Commission of Presidential Debates. And my instincts were right. We learned today that the Biden and Trump campaigns have privately back-channeled with one another about an alternative debate format. More at the New York Times. There are lots of political reasons for each campaign to do this–both have grievances with the CPD and apparently have the leverage to jettison it (aging candidates looking to have greater control over timing and conditions)–and have agreed to a debate hosted by CNN on terms they prefer.

To get around campaign finance restrictions, CNN has listed “pre-established objective” criteria to participate in the debate. And here’s where things get complicated.

Continue reading CNN [UPDATE: and ABC] will host presidential debate with Biden, Trump, but some questions about its criteria →
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Supreme Court briefing complete on appeal of North Dakota redistricting case

redistricting

Walen v. Burgum was decided before a three-judge panel and is on appeal to the Supreme Court. It involves the interaction of the Equal Protection Clause and racial gerrymandering with Section 2 of the Voting Rights Act in the drawing of majority-Native American districts in North Dakota. The district court found the maps were permissible. Of some note, an amicus brief some several states led by Alabama support the appeal here. And Cooper and Kirk (the law firm that represented the North Carolina legislators in Moore v. Harper) is representing North Dakota here. Briefing is now complete. If the Court takes the appeal, it will likely be on the docket for argument in the late fall. For more on the case, here’s All About Redistricting on it.

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“Pritzker signs election bill that would favor Democrats in November”

ballot access, election administration

The Chicago Tribune has this coverage of a new election law in Illinois that changes the rules of ballot access in the middle of an ongoing campaign:

Gov. J.B. Pritzker has signed into law a comprehensive election bill that would give Democrats a significant advantage toward keeping their legislative majorities before any votes are even cast in the Nov. 5 general election.

Democrats already enjoy legislative supermajorities in the Illinois House and Senate thanks to district maps drawn by party leaders following the 2020 federal census that were crafted to minimize Republican opposition.

But the election bill given final approval by Senate Democrats Thursday, a day after the bill passed the House, would further help Democrats maintain control in the next General Assembly.

Under the new law, local political party organizations can no longer appoint candidates to fill out legislative ballots where the party did not field a primary candidate. Previous law allowed the appointment process within 75 days of the primary.

Capitol News Illinois has more. And The Center Square has a piece, “Candidates feel ‘cheated, violated, robbed’ after Pritzker enacts law ending slating.” (The bill does a lot of other things, too, like moving its quite early presidential nomination deadline up a month earlier, and adding three non-binding and unrelated referenda to the fall ballot.)

One can, of course, oppose the idea of “slating” and prefer that candidates petition, in the abstract and as a general matter. But, the reason many candidates did not petition was the fact that they relied on existing rules to allow them to be “slated” by the party for the general election. That rug has been yanked out from under them, leaving a number of uncontested elections in the upcoming election. Cold comfort offered here from one Illinois legislator: “‘A candidate who would want to run for General Assembly seat after the primary will have to run, as they can today, as an independent or a third-party candidate,’ Harmon said.”

While I typically prefer to share stories without a lot of editorializing, I want to take a moment to offer one small observation. I waited for a couple of day to see how other media outlets would cover the story. After all, we are in an era where there is an explosion in journalists who identify as covering the “democracy beat” or looking for a “democracy angle” in stories. I wondered how the Washington Post, the New York Times, the Associated Press, or CNN might cover these stories. After all, they are quite attuned to what local county officials in Nevada or Arizona are doing with respect to counting ballots, or every twist and turn of an election bill in Georgia. How about this? As far as I can tell, there hasn’t been any coverage in these or many other major media outlets of America’s sixth-largest state changing the rules of an election in the middle of the campaign to deprive hundreds of thousands of voters of the opportunity to choose a candidate of their preference, and as a number of candidates who behaved in a way relying on existing laws have lost their opportunity to seek office. But there is still time for coverage, of course, particularly as I imagine litigation is coming.

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In election contest, Missouri Supreme Court throws out enacted state constitutional amendment on police funding for faulty ballot summary

Uncategorized

The opinion has some really interesting ballot initiative issues, including the timing of election contests, and pre-election v. post-election challenges, with some dissents largely on procedural issues. From Lucas v. Ashcroft (lightly revised):

Continue reading In election contest, Missouri Supreme Court throws out enacted state constitutional amendment on police funding for faulty ballot summary →
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Federal courts toss challenges by state legislators in Pennsylvania, Michigan over lack of standing

Elections Clause

The most recent edition of our federal courts casebook (with co-authors Arthur Hellman, David Stras, Ryan Scott, and Andy Hessick), I took some time reshape some of the focus of the chapter on “standing” to expound upon some increasing recurring themes. One of those themes was legislator and legislative standing. Legislators generally lack standing in federal court beyond what ordinary citizens or voters have, except in some rare (and perhaps isolated and unique) cases. In the elections context, these claims keep returning, with fairly predictable results.

In Keefer v. Biden (Pennsylvania) and Lindsey v. Whitmer (Michigan), federal courts in recent weeks have tossed challenges filed by state legislators under the Elections Clause. Both cases argued that some non-institutional legislature action, such as executive action (from President Biden) or ballot initiative (in Michigan), ran afoul of the Elections Clause. Both were thrown out for lack of standing. Despite the fact that the legislators wanted to challenge the action, their real concern was that the institutional legislature had been harmed.

Elections Clause challenges do not always fail for procedural reasons in federal court–see the recent New Jersey litigation citing Cook v. Gralike. But to the extent they attempt to assert something resembling the kinds of claims in Moore v. Harper, the paths forward remain quite limited.

But the cases are a constant reminder of the terrific number of election litigation challenges we continue to see, and how many fail to get to the merits for issues at the outset of the litigation.

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Tenth Circuit rejects challenge to Colorado tax-related ballot initiative language requirements

voter initiatives

From Advance Colorado v. Griswold:

In 2021, the Colorado state legislature passed The Ballot Measure Fiscal Transparency Act (“HB 21-1321”), which requires certain language be included in state-imposed titles of citizen-initiated ballot measures. Specifically, if the proposal contains a tax change affecting state or local revenues, the measure’s title must incorporate a phrase stating the change’s impact on state and district funding priorities. In 2023, Appellants (collectively, “Advance Colorado”) proposed two tax reduction measures subject to the provisions of HB 21-1321. After Colorado’s Ballot Title Setting Board (the “Title Board”) included the mandated transparency language in each initiative’s title, Advance Colorado filed suit challenging HB 21-1321 as unconstitutionally compelling its political speech. The district court denied the corresponding request for a preliminary injunction, concluding the titling process qualified as government speech and, therefore, Advance Colorado was not likely to succeed on the merits of its claims. We agree that HB 21-1321’s requirements do not result in improperly compelled speech under the First Amendment of the United States Constitution.

And from later in the opinion (lightly revised):

The Colorado Title Board has existed and set ballot titles in a similar manner for over eighty years. As is the case today, when it was first formed the Title Board was solely responsible for setting a measure’s title without the influence of proposal advocates. The long history of the Title Board’s practices reflects the substantial control the government asserts over initiative titles and its legitimate interest in providing a standardized process for presenting measures to voters. Titling is statutorily separated and preserved as an express function of the government under Colorado law. Despite the catalytic role played by citizens in the initiative process, ballot titles are fully and exclusively crafted by the government through the Secretary of State’s office. Indeed, “[t]he fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum provider.” Walker [v. Texas Div., Sons of Confederate Veterans, Inc.]. Advance Colorado has failed to offer any evidence refuting this history of substantial government control.

Advance Colorado is also unable to demonstrate that . . . the general public perceives initiative titles to be the speech of private citizen-advocates. . . .

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Federal court relies on Cook v. Gralike to find New Jersey ballot design likely violates the Elections Clause

ballot access

Rick H. links to the story about the New Jersey ballot design case and a federal judge finding that the “party line” was unconstitutional. The first claim, unsurprisingly, is an Anderson-Burdick balancing test. But I wanted to draw attention to the holding for the second claim, under the Elections Clause. The court found a likelihood of success on the claim that the law exceeds the state’s power to direct the time, place, and manner of holding elections:

The Elections Clause of the United States Constitution provides that “[t]he 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.” U.S. Const. art. I, § 4, cl. 1. When the regulation involves the time, place, and manner of primary elections, the only question is whether the state system is preempted by federal election law on the subject. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832 (1995). However, when the regulation does not regulate the “time, place, or manner,” courts must consider whether the regulation on its face or as applied falls outside that grant of power to the state by, for example, “dictat[ing] electoral outcomes, favor[ing] or disfavor[ing] a class of candidates, or evad[ing] important constitutional restraints. Cook v. Gralike, 531 U.S. 510, 523 (2001). The Supreme Court has struck down such regulations when they “attach[ ] a concrete consequence to noncompliance” rather than informing voters about some topic. Id. at 524. The timing may also add to the gravity of injury, especially when it occurs “at the most crucial stage in the election process – the instant before the vote is cast.” Id. at 525 (quoting Anderson v. Martin, 375 U.S. 399, 402 (1964)).

Here, as set forth above, the State conferred its power to regulate the “manner” of federal elections to the county clerks, including the Defendant County Clerks, by requiring them to design and print ballots. N.J. Stat. Ann. 19:23-26.1, 19:42-2. In Defendants’ view, the Bracketing Structure is a permissible regulation on the “manner” of federal elections. On the record already reviewed, Plaintiffs’ evidence is sufficient to make their showing of a likelihood they will succeed in establishing that the Bracketing Structure and ballot placement is improperly influencing primary election outcomes by virtue of the layout on the primary ballots. This would clearly exceed a State’s right to regulate the “manner” of federal elections. Cook, 531 U.S. at 525 (“the instant before the vote is cast” is the “most crucial stage in the election process”).

Cook v. Gralike involved a state attempting to print on the ballot whether the candidate supported or opposed a term limits pledge. The court here also cites Anderson v. Martin, where a state attempted to list the race of candidates on the ballot. (For a look at a ballot from the era with racial designations, check out my blog post here.) Both cases, in my judgment, are underappreciated in how we think about election administration and ballot design (I write about both in “Ballot Speech“), and it’s interesting to see how they’re used here in the New Jersey ballot design case. (Of course, this only applies to congressional elections, not state elections.)

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Is the internal dispute in Trump v. Anderson a tempest in a teapot?

Supreme Court

The more I try to parse out the dispute between the majority’s Part II-A of its opinion (and other language) and the opinion concurring in the judgment in Trump v. Anderson, the less confident I am that I understand what the 5-4 dispute is about or how we got here. The consensus view of the Court is pretty straightforward (even if critiqued by some over the last couple of days). Justice Barrett identifies a “different path” in Part II-A, which she does not join. She critiques the “temperature” from an opinion concurring in the judgment by Justices Sotomayor, Kagan, and Jackson, who cite, inter alia, Dobbs v. Jackson Women’s Health Organization and Bush v. Gore in a critique of this part of the opinion.

What are the stakes for such a strong disagreement? And, maybe more saliently, is there even a disagreement to be found across the opinions?

Everyone on the Court agrees that states have no power to ascertain whether a federal candidates is disqualified under Section 3 of the Fourteenth Amendment. The dispute instead arises over three separate but related questions: (1) whether Congress (as opposed to other actors in the federal government) has the exclusive power to do so; (2) whether Congress when enforcing Section 3 must do so pursuant to legislation; and (3) regardless, whether any congressional legislation must be appropriately “tailored” under Section 5 of the Fourteenth Amendment. These arguments are conflated and elided over throughout the short opinion, so it’s worth trying to determine the stakes.

Continue reading Is the internal dispute in Trump v. Anderson a tempest in a teapot? →
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Fourteenth Amendment federalism over Electoral College federalism in Trump v. Anderson

electoral college

This sentence, perhaps more than any other, in my judgment, drives the decision in Trump v. Anderson (and the unanimous consensus of the Supreme Court):

Because federal officers “‘owe their existence and functions to the united voice of the whole, not of a portion, of the people,’” powers over their election and qualifications must be specifically “delegated to, rather than reserved by, the States.” U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (1995) (quoting 1 J. Story, Commentaries on the Constitution of the United States §627, p. 435 (3d ed. 1858)).

Continue reading Fourteenth Amendment federalism over Electoral College federalism in Trump v. Anderson →
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Iowa Supreme Court unanimously finds legislative privilege extends to election law dispute

Speech or Debate Clause

From the introduction of Justice Dana Oxley’s opinion for the Court in Smith v. Iowa District Court for Polk County:

In an effort to support its constitutional challenges to recent legislative changes to voting procedures, the League of Latin American Citizens of Iowa (LULAC) served subpoenas on several Iowa legislators, seeking discovery of communications the legislators had with third parties related to enactment of the legislation. The legislators, who were not parties to the underlying litigation, objected to the subpoenas, LULAC filed a motion to compel, and the district court granted the motion in part. The nonparty legislators filed a petition for writ of certiorari, arguing they are protected from compelled document production by a legislative privilege under the Iowa Constitution.

This certiorari proceeding presents our first opportunity to address whether the Iowa Constitution—which lacks a speech or debate clause—nonetheless supports a legislative privilege that protects Iowa legislators from compelled production of documents related to the passage of legislation. The district court concluded that the Iowa Constitution provides a privilege, but the privilege is conditional rather than absolute. It then concluded that compelling, competing interests—specifically LULAC’s claims that the legislation amounts to unconstitutional viewpoint discrimination—require piercing the privilege with respect to most of the documents sought in the underlying litigation.

We now hold that the Iowa Constitution contains a legislative privilege that protects legislators from compelled document production and that the privilege extends to communications with third parties where the communications relate directly to the legislative process of considering and enacting legislation. However, we need not, and therefore do not, decide whether the legislative privilege is absolute or qualified. The district court applied the wrong analysis when it relied on gerrymandering cases, where some courts hold that “judicial inquiry into legislative intent is specifically contemplated as part of the resolution of the core issue that such cases present.” Bethune-Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323, 337 (E.D. Va. 2015). The district court should have considered the underlying claims—which challenge changes to the voting procedures as violating individual voters’ constitutional rights—through the lens of the Anderson-Burdick balancing test. See Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504 U.S. 428, 434 (1992). That test balances the “character and magnitude” of the injury to the individual voters’ rights against the state’s justification for the changes, Anderson, 460 U.S. at 789, neither of which turn on legislative intent. Therefore, the individual legislators’ intent has little, if any, relevance to LULAC’s claims. Whether absolute or qualified, the legislative privilege protects the legislators from the requested document production.

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Cert petition filed in Wyoming polling place electioneering restriction

election administration

Last fall, I noted the 10th Circuit’s decision upholding Wyoming’s ban on electioneering within 300 feet of the polling place. That restriction is substantially larger than the restriction approved by the Supreme Court in Burson v. Freeman (1992). In light of recent developments, including Minnesota Voters Alliance v. Mansky, limiting how states try to restrict “political” apparel at the polling place, and lower court decision on “ballot selfies,” Burson has seen some cutbacks. A cert petition in Frank v. Lee has been filed and docketed here. We’ll see if the case attracts the Supreme Court’s interest.

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“The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act”

election law and constitutional law, electoral college

The Case Western Reserve Law Review has just published my article, “The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act.” Here is the abstract:

When Congress convenes under the Twelfth Amendment and the votes of presidential electors are counted, there are three different responsibilities to consider. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes?

This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. And that means the chamber—here, the joint session—can constrain the President of the Senate as presiding officer. Congress did exactly that when it chose to further constrain the discretion of the President of the Senate in the Electoral Count Reform Act of 2022. Second, Congress counts electoral votes. The evidence in the text and structure of the Constitution and congressional practice before the ratification of the Twelfth Amendment supports this interpretation. Third, the power to resolve disputes runs with the power to count. And that means Congress also has the power to resolve disputes about presidential electors.

Separating these responsibilities is crucial because it can be too easy to conflate some of these activities, which in turn elides over the distinctions in responsibilities. When the presiding officer acts, she does so not to count votes, but to preside over the joint session and help it proceed according to the rules and precedents set by Congress. The actions she takes may resemble the substantive act of counting. But close scrutiny of the record reflects that the President of the Senate does not count, and has never counted, votes. That is because the power to count resides in Congress, where the Twelfth Amendment lodges that power.

This Essay begins by examining the text of Article II, specifically its Counting Clause. It argues that a change in verb voice in the clause removes the President of the Senate from the role of counting electoral votes. Part II then moves to the original public meaning of the Twelfth Amendment through an interpretation of congressional practices. Majorities of both houses of Congress in 1800 believed Congress had the substantive power to resolve disputes over electoral votes. These details give an important gloss to the Twelfth Amendment, which was ratified in 1804. Part III examines the structure of the Constitution. Crucially, the President of the Senate, not the Vice President, bears the responsibilities in the Twelfth Amendment. While these two terms are often used interchangeably, they are not interchangeable for purposes of understanding the separation of powers and the role of Congress. Part IV concludes with an examination of the newly enacted Electoral Count Reform Act. It identifies the major elements of the Act and it focuses on the Act’s decision to expressly narrow the responsibilities of the President of the Senate in the joint session where Congress counts electoral votes. Congress’s decision to define the role of the presiding officer is squarely within its constitutional authority.

The piece responds to some arguments made by Professors John Yoo and Robert Delahunty in the Case Western Reserve Law Review; and concerns raised by Professors Gary Lawson and Jack Beerman. It engages with recent work by Professor Joel Goldstein, and others. Portions are drawn from blogging here and from my Senate testimony regarding the Electoral Count Reform Act. Professor Jonathan Adler weighs in over at Volokh here.

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Near-unanimous Wisconsin Senate advances important bill responding to Electoral Count Reform Act

electoral college

In December 2022, I blogged about how state legislatures needed to take a look at how their existing election codes fit with the Electoral Count Reform Act. In particular, “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.” I tracked some changes in May 2023 as they were pending in states.

Today, the Wisconsin Senate, by a 31-1 vote, passed a major overhaul of how its canvassing, certification, and recount procedures happen, SB 852. Below the jump are the provisions to show how much tighter the process will be–no more languishing recounts or challenges as the state experienced in 2016 and 2020 (if the bill is ultimately signed into law). It’s greatly encouraging to see bipartisan consensus to expedite election procedures in response to the ECRA, especially in a “swing state” like Wisconsin.

Continue reading Near-unanimous Wisconsin Senate advances important bill responding to Electoral Count Reform Act →
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On January 6, 2025

ballot access, electoral college

When Congress convenes to count electoral votes on January 6, 2025, it will face intense pressure. If the Supreme Court rejects Colorado’s effort to bar Donald Trump from the primary ballot, its path seems likely to leave the door open for Congress to act, in some fashion at some time. Rick H. has valiantly argued here and elsewhere that courts should foreclose the possibility of future meddling, however they choose to do so; and it’s the gist of the Foley-Ginsberg-Hasen brief in Trump v. Anderson, too.

But. Supposing the Court does not close the door.

Continue reading On January 6, 2025 →
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