All posts by Dan Tokaji

“Trust in Supreme Court falters after Roe decision”

WaPo on Dobbs and the cert grant in Moore v. Harper:

The abortion ruling came amid a string of high-profile decisions, including ones expanding gun rights and curtailing the Environmental Protection Agency’s ability to curb carbon emissions. On Thursday, the court agreed to consider whether state lawmakers have the sole authority to determine how federal elections are run and where congressional district lines go.

Many of the recent rulings issued — but especially the overturning of Roe — elated conservatives and enraged liberals, sparking protests and condemnation from lawmakers, celebrities, corporations and civic groups who said they worried the court was becoming another political branch of government. After the court spent decades expanding the rights of many Americans, including by allowing same-sex marriage and protecting voting rights, many were stunned to see a right rolled back.

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“New Insights Into Trump’s State of Mind on Jan. 6 Chip Away at Doubts”

NYT news analysis:

[F]or a man who famously avoids leaving emails or other trails of evidence of his unspoken motives, any doubts about what was really going through Mr. Trump’s mind on that day of violence seemed to have been eviscerated by testimony presented in recent weeks by the House committee investigating the Capitol attack — especially the dramatic appearance last week of a 26-year-old former White House aide who offered a chilling portrait of a president willing to do almost anything to hang onto power.

More than perhaps any insider account that has emerged, the recollections of the aide, Cassidy Hutchinson, demolished the fiction of a president who had nothing to do with what happened. Each revelation was stunning on its own: Mr. Trump knew that weapons were in the crowd as he exhorted supporters to “fight like hell,” and even tried to stop anyone from disarming them. He was so determined to join the mob at the Capitol that he lashed out at his Secret Service detail for refusing to take him. And he was so nonchalant about the bedlam he had unleashed that he suggested Vice President Mike Pence might deserve to be executed for refusing to overturn the election.

But when added together, the various disclosures have produced the clearest picture yet of an unprecedented attempt to subvert the traditional American democratic process, with a sitting president who had lost at the ballot box planning to march with an armed crowd to the Capitol to block the transfer of power, brushing aside manifold concerns about the potential for violence along the way.

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“How the Founders Intended to Check the Supreme Court’s Power”

A historical case for court packing and jurisdiction stripping, from Politico Magazine:

Acting in concert, the president and Congress may shape both the size and purview of the court. They can declare individual legislative measures or entire topics beyond their scope of review. It’s happened before, notably in 1868, when Congress passed legislation stripping the Supreme Court of its jurisdiction over cases related to federal writs of habeas corpus. In the majority decision, Chief Justice Salmon P. Chase acknowledged that the court’s jurisdiction was subject to congressional limitation. Subsequent justices, over the past century, have acknowledged the same.

That’s the brilliance of checks and balances. In the same way that Congress or the Supreme Court can rein in a renegade president, as was the case during Watergate, the president and Congress can place checks on an otherwise unconstrained court, if they believe the justices have exceeded their mandate.

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Two AZ Election Officials Quit, Citing Threats

From Business Insider and WaPo, more evidence of the increased strain that conscientious local election officials have been facing since 2020 . . . and the risks that their departure poses for our democracy:

The elected county recorder and the elections director in Arizona’s Yavapai County are resigning after more than a year and a half of threats and heated criticism from backers of former President Donald Trump who accept his lie that he lost the 2020 election because of fraud.

County Recorder Leslie Hoffman said Friday that she is fed up with the “nastiness” and has accepted a job outside the county. Her last day will be July 22. She said longtime elections director Lynn Constabile is leaving for the same reason, and Friday is her last day.

“A lot of it is the nastiness that we have dealt with,” Hoffman said. “I’m a Republican recorder living in a Republican county where the candidate that they wanted to win won by 2-to-1 in this county and still getting grief, and so is my staff.”

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New Jan. 6 Witnesses Coming Forward “Every Day,” According to Kinzinger


Rep. Adam Kinzinger has said that new witnesses have come forward willing to provide evidence to the House Select Committee investigating the January 6, 2021 attack since the damning testimony from former White House aide Cassidy Hutchinson.

Kinzinger, one of two Republicans on the panel looking into the events leading up to the insurrection, told CNN’s State of the Union that people have been coming forward “every day” since Hutchinson testified on June 28.

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Wisconsin Webinar on Redistricting 2021

With the post-2020 redistricting cycle in full swing, the Elections Research Center at the University of Wisconsin-Madison and the State Democracy Research Initiative at the University of Wisconsin Law School are co-hosting a webinar on Redistricting and Gerrymandering 2021: Taking Stock and Looking Ahead. Please join us this Friday, November 19th at 12:30PT/1:30MT/2:30 CT/3:30ET for a discussion of unfolding developments, emerging themes, and what to expect in the months and years to come. Speakers include Barry Burden (UW-Madison Political Science), Ruth Greenwood (Harvard Law School), Robert Yablon (UW Law School), and Emily Zhang (Stanford Political Science), joined by moderator Miriam Seifter (UW Law School).  You can register here.

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Wisconsin State Democracy Initiative Kickoff Thursday

The State Democracy Research Initiative at the University of Wisconsin Law School will be hosting a virtual kickoff event this Thursday, October 7, 2021, from 5-6pm CT. Please join us for a free, livestreamed panel discussion to hear current and former state solicitors general share perspectives on state government and state cases of interest. Confirmed speakers include Amit Agarwal (Former Solicitor General, Florida), Elizabeth “Bessie” Dewar (State Solicitor, Massachusetts), Michael Mongan (Solicitor General, California), and Ryan Park (Solicitor General, North Carolina). Registration is available here, and additional information can be found on the event website.

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State Democracy Initiative at Wisconsin Law

The University of Wisconsin Law School is delighted to announce the launch of the State Democracy Research Initiative, co-directed by Professors Miriam Seifter and Robert Yablon. The Initiative will shine a spotlight on state democratic processes and institutions, which traditionally receive less attention from legal scholars and educators than those at the federal level.  It will also serve as a resource on state-level governance issues for academics, policymakers, and advocates across the country. You can follow the Initiative on Twitter at @UWLawDemocracy, and save the date for a live hybrid kickoff event on Thursday, October 7, 2021, at 5:00 pm CT (3 PT/4 MT/6 ET).  Mark your calendars!

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Over to You, Ned

Thanks to Rick for inviting me to blog for the past two weeks. There’s never a dull moment in the world of election law, and it’s helped me catch up on the many things I missed during my first year as Dean of University of Wisconsin Law School. My friend and colleague Ned Foley at Ohio State will be taking over for the next two weeks, from July 19 through August 1. You can send links and suggestions to him.

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“Pennsylvania election audit gets GOP campaign trail embrace”


A Republican state lawmaker, bolstered by support from top Republican candidates, has launched a push for a “forensic investigation” of the presidential election results, a review modeled on the widely discredited process underway in Arizona….

The audit has fast become a litmus test in an election cycle where an open governor’s office and an open U.S. Senate seat — the political equivalent of a blue moon — have triggered fiercely competitive Republican primaries….

“Most of the Republicans I know, at the very least, have misgivings and, at worst, are like me and realize this is just really a blunder of epic proportions,” said former congressman Charlie Dent, a centrist Republican from the Allentown area. “Why bring the Arizona clown show to Pennsylvania?”

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“The next voting rights battleground is Michigan”


Michigan Republicans want to pass a blitz of legislation that restricts the right to vote in the key battleground state — and they have an audacious plan to get their ideas enacted, even though they have to contend with a Democratic governor who could ordinarily veto their bills….

[E]arly this month, the state’s Senate Majority Leader Mike Shirkey (R) announced that Republicans plan to invoke a process that could allow them to bypass the governor’s veto and pass a package of “half a dozen” election-related bills. Under the state constitution, a relatively small group of voters can propose legislation through a petition and then this legislation can be enacted by the state legislature. Using this process, the GOP-controlled legislature could enact this package by a simple majority vote in both houses, and Whitmer would be powerless to veto it — although Democrats could potentially force a voter referendum on the GOP package.

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“California has 41 candidates for September recall election”

Politico: “Forty-one candidates have met the qualifications to run in the California gubernatorial recall election, less than a third of the number who ran in the state’s memorable 2003 contest and well below what some political experts months ago had predicted, according to an official list released Saturday night.” Those on the list include former San Diego Mayor Kevin Faulconer, former Rep. Doug Ose, former Olympian/reality TV star Caitlyn Jenner, and (like last time) billboard star Angelyne.

I left California in 2003, but some things never change.

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“Postponed Weddings, Stockpiled Insulin and Covid: The Bizarre Life of Texas Democrats in Exile”

Politico Magazine:

[O]ver 50 state House Democrats … fled Texas on Monday to deny Republicans a quorum for a major new elections bill that has stirred backlash: axing pandemic-era practices to expand voting access adopted in a large Democratic-leaning county, further restricting mail voting in the state and making election workers liable for new potential civil or criminal penalties. Democrats are in the minority in Texas, but Republicans can’t pass the legislation without them there — so they left for Washington, D.C.

In interviews with a dozen Texas lawmakers during their first week in Washington, they described a hectic, last-minute scramble to pack and get out of the state….

But their endgame is unclear. Every House Democrat who spoke to POLITICO indicated they intend to stay out of Texas until the current special legislative session is over, but they demur about what comes after that.

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