All posts by Justin Levitt

Antebellum fusion

ballot access, political parties

Justin again.  I had the “pleasure” of teaching Timmons v. Twin Cities Area New Party again yesterday.  Timmons was a federal constitutional challenge to “anti-fusion” laws: laws preventing two parties on the ballot from nominating the same candidate (and thereby preventing voters from demonstrating their preference for a candidate on one of two or more party lines).

And I was reminded, again, of two things:

  • The remarkable sloppiness of the Court’s drive-by originalism as a rationale for allowing states to entrench a duopoly.  Whatever your view of the political science, it’s pretty clear that the Court gets Federalist No. 10 (and its warning against faction) exactly 180-degrees backward.
  • The remarkably monochromatic nature of the public’s understanding of electoral options based on deep unfamiliarity not just with other countries’ systems, but our own history.  Fusion ballots are just one example of this, of course.  But even students who think they know a lot about Earl Warren as Chief Justice have no idea that he got both the Republican and Democratic nominations for Governor, or even that that’s a conceptual option.

In the latter vein, there’s a really interesting new paper out by Corey Brooks and Beau Tremitiere in the St. John’s Law Review reviewing how northern antislavery parties used fusion in the 1840s and 1850s to grow what would become the Republican Party.  I’m looking forward to digging in.

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9th Circuit affirms limits on AZ proof of citizenship laws

absentee ballots, election administration, NVRA (motor voter), The Voting Wars, voter registration

Justin here. A 9th Circuit panel is out with 156 pages’ worth of opinion in Mi Familia Vota v. Fontes, the latest in the battles revolving around Arizona’s laws requiring documentary proof of citizenship to vote.  There’s (obviously) quite a lot going on in an opinion this size, but it’s a pretty clear win for plaintiffs across the board, affirming most of the trial court’s May 2024 decision.  To distill:

  • Voters using the federal voter registration form have to be registered for federal elections when they swear to their citizenship even without additional documentary proof (that’s Arizona v. Inter-Tribal Council of Arizona).  The panel here held that’s true for voters voting by mail and voters voting for President as well.
  • Voters using the state voter registration form have a legal right, subject for the moment to a SCOTUS stay, to be registered for federal elections when they swear to their citizenship even without additional documentary proof (that’s a consent decree in LULAC v. Reagan, which today’s panel held valid – but on this point the decision is still subject to a SCOTUS stay).  If voters (using the state or federal forms) submit documentary proof or have their citizenship confirmed through a check of DMV systems, those voters have to be registered for state elections too.
  • Voters using the state voter registration form have to be registered for federal elections when they swear to their residency even without additional documentary proof.
  • Naturalized citizens can’t be singled out (distinct from natural-born citizens) for citizenship checks using the SAVE database, because such a screen would not be uniform.
  • Arizona can’t conduct systematic list maintenance to remove records of alleged noncitizens within the NVRA’s “pencils-down period” 90 days before an election (but can conduct such maintenance outside of the 90-day period).
  • Voters who provide documentary proof of their citizenship can’t be disenfranchised if they don’t check a box on the state form affirming their citizenship (this is due to the Civil Rights Act’s materiality provision, and full disclosure – I submitted an amicus brief on this point)
  • Voters can’t be disenfranchised based on their birthplace or their failure to list a birthplace (also under the materiality provision, with the same amicus brief caveat)

And the court remanded for the district court to reconsider the issue of whether the proof-of-citizenship laws were passed with discriminatory intent.

UPDATE: Foolishly forgot the obvious tie-in: the opinion should make for an even more interesting discussion at Rick’s March 4 SDP conversation w/ Adrian Fontes, Walter Olson, and Nina Perales…

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Pam Bondi, the 2020 election, Project 2025, and the Ku Klux Klan Act

provisional ballots, The Voting Wars, ,

Pam Bondi’s hearings start today.  She’s applying for the job of Attorney General: the lawyer for the United States.  Given the shifting loyalties and vindictive proclivities of the President-elect who has put her forward, every Senator has both an obligation and a very personal stake in ensuring that she understands who her prospective client is.

In that process, one piece of the Project 2025 playbook should be front and center.

There’s no shortage of material in the DOJ section of Project 2025. It calls outright for abolishing the independence of the FBI (and all other independent agencies), prosecuting DAs who use their prosecutorial discretion, enforcing an 1873 law against mailing abortion drugs, and on and on. It implies still more, with goals that would be well within elections-have-consequences bounds in responsible hands (including past Attorneys General of both parties), but deeply concerning in others.

But there’s one bit of Project 2025’s section on DOJ that hasn’t gotten anywhere near the attention it should.  On pp. 562-564, there’s a portion suggesting shifting responsibility for prosecuting election-related offenses from the DOJ’s Civil Rights Division (CRT) to the Criminal Division (CRM).

The problem here isn’t actually the suggestion to shift responsibility. As a factual matter, the authority to prosecute most election-related offenses, including most versions of the particular statute mentioned in the chapter, already lives where Project 2025 wants it to live (with CRM). The Project 2025 chapter seems to have gotten this wrong based on the author’s misunderstanding of a single out-of-context table. 

The problem here also isn’t the fact that when the Project 2025 chapter gives an example of the reason to “shift” to CRM, the example relates to a relitigation of the 2020 election.  I mean, it’s a problem we’re still fighting that fight, yes.  But it’s far from the biggest problem with the example.

The problem is that the particular example that the Project 2025 authors chose to make their point — the example they were aiming for as a paradigm case — is crazypants.  And Bondi should be asked whether she agrees with it.

In 2020, PA’s chief election official, the Secretary of the Commonwealth, sent guidance to counties saying that a voter showing up at the polls but listed on the books as voting absentee should vote a provisional ballot, not a regular ballot.  If the mail ballot counted, the provisional wouldn’t.  If the mail ballot didn’t count for some reason, but the voter was actually eligible, the provisional ballot should count.  One ballot counted and only one ballot counted, for one eligible voter.

Whether the Secretary’s guidance was correct is a matter of state law.  In 2024, in a slightly different context, the Pennsylvania Supreme Court endorsed the guidance’s approach.  But whether you agree or disagree with that interpretation, either way around, this is a fight about the meaning of state law.

And, to be clear, this is a state law fight about whether the ballot of an _eligible_ voter should be counted in the event of a procedural error (which might have been the state’s mistake).  Absolutely no part of this fight, under any reading of the guidance, even remotely suggests that an ineligible voter will be able to vote.

The Project 2025 chapter — in the example they chose to highlight as the paradigm case of DOJ enforcement — says that for issuing this guidance, the PA official “should have been (and still should be) investigated and prosecuted”  (emphasis added).  For conspiring to deprive Pennsylvanians of their civil rights UNDER THE KU KLUX KLAN ACT  (emphasis emphatically added.)

It’s worth saying again. The Project 2025 chapter thinks that a matter of heartland federal prosecution is that the DOJ should send a state official to prison — under the Klan Act — based on a disagreement about whether state law allows an eligible voter to cast a ballot that will be counted. When the state official was trying to ENfranchise the voter.

The reason this case hasn’t been prosecuted isn’t because the authority is with the wrong DOJ division.  The reason this case hasn’t been prosecuted is because that prosecution would be insane. I know plenty of conservative federal prosecutors who take their oaths of office quite seriously. I don’t know one who would think this case is proper.

This is an unrecognizable criminal prosecution.  So much so that it’s hard to describe how out of bounds this suggestion is.  The best I can do is a bad balls-and-strikes metaphor. 

Some legal arguments are strikes.  Some are balls.  (And sometimes the line between depends on the judge.)

Some are wild pitches.

This one is a pitcher completely ignoring the plate and the batter, and trying to fire a fastball as hard as he can directly into the face of a spectator in the stands.

And over the next two days, Pam Bondi should be asked whether she agrees that this is a valid use of DOJ authority.

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“Romanian Court Annuls Presidential Election Results and Orders a New Vote”

cheap speech, comparative election law, election subversion risk

The NYT coverage of the Romanian constitutional court’s decision is here; the court’s decision itself is here.  The NYT reports that the decision was based on manipulation of digital media — including this Tiktok controversy and alleged Russian interference. 

The U.S. Embassy’s statement on the decision is here.

And the European Commission has ordered TikTok to preserve information under the EU’s Digital Services Act, for a pending investigation and increased future monitoring.

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“Donald Trump Announces Plan to Change Elections”

election administration, voter id, voter registration, voting technology

Sort of.  The Newsweek headline should really read “Donald Trump Announces Policy Goals” for elections, since all of what he’s proposing would require legislation: “We’re gonna do things that have been really needed for a long time,” he said. “And we are gonna look at elections. We want to have paper ballots, one day voting, voter ID, and proof of citizenship.”

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