Category Archives: Uncategorized

“Why Sore Loser Laws Can’t Be Applied to Presidential Candidates”

Richard Winger at Smerconish:

The spring 2023 Harvard Journal of Law & Public Policy has an article, “How State ‘Sore-Loser’ Laws Make it Impossible for Trump to Run a Successful Third-Party Campaign If He Loses the Republican Primary.”  The authors are four attorneys in Holtzman Vogel Baran Torchinsky & Josefiak.  The article concludes that 28 states would bar Trump from the general election ballot if he had run in that state’s presidential primary and yet did not become the Republican presidential nominee.  The 28 states, the authors say, are Alabama, Arizona, Arkansas, Colorado, Georgia, Illinois, Kansas, Louisiana, Maine, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wisconsin.

The article has factual mistakes, but Alabama, Michigan, Pennsylvania, and Texas courts have indeed said that states can bar presidential candidates from the general election if they had run in the major party presidential primaries and then failed to gain that major party’s nomination.   The first, a Texas decision filed in 1996, did not involve declaratory relief, but only denial of injunctive relief.  The other three, filed in 2012 and 2016, did include declaratory relief.

Those decisions are  (1) De La Fuente v Merrill, 214 F.Supp.3d 1241 (m.d. Alabama 2016); (2) Libertarian Party of Michigan v Johnson, 905 F Supp 2d 751 (e.d. Michigan 2012); (3) De La Fuente v Cortes, 751 Fed.Appx. 269 (Pennsylvania, 3rd circuit, 2018) (4) National Committee of the U.S. Taxpayers Party v Garza, 924 F.Supp.71 (w.d. Texas 1996).

However, it is also true that no state had ever barred a presidential candidate from the general election ballot, on “sore loser” grounds, until 2012, even though “sore loser” laws had existed for over a century.  Before 2012, 34 states had printed “sore losers” on their presidential general election ballots, setting precedents that the laws don’t apply to presidential candidates.  It should strike anyone that it is peculiar that past practice should suddenly count for nothing when the law is applied….

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“Republicans Face Setbacks in Push to Tighten Voting Laws on College Campuses”


Alarmed over young people increasingly proving to be a force for Democrats at the ballot box, Republican lawmakers in a number of states have been trying to enact new obstacles to voting for college students.

In Idaho, Republicans used their power monopoly this month to ban student ID cards as a form of voter identification.

But so far this year, the new Idaho law is one of few successes for Republicans targeting young voters.

Attempts to cordon off out-of-state students from voting in their campus towns or to roll back preregistration for teenagers have failed in New Hampshire and Virginia. Even in Texas, where 2019 legislation shuttered early voting sites on many college campuses, a new proposal that would eliminate all college polling places seems to have an uncertain future.

“When these ideas are first floated, people are aghast,” said Chad Dunn, the co-founder and legal director of the UCLA Voting Rights Project. But he cautioned that the lawmakers who sponsor such bills tend to bring them back over and over again.

“Then, six, eight, 10 years later, these terrible ideas become law,” he said.

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“N.C. board removes election officials who refused to certify”


 North Carolina’s state elections board on Tuesday removed two local election officials who had refused to certify their county’s 2022 results after officials determined they violated state law.

The state board voted unanimously to dismiss Surry County elections secretary Jerry Forestieri and board member Timothy DeHaan in one of the strongest disciplinary actions taken against local officials across the U.S. who have delayed or refused to certify election results. Controversies over election certification have roiled mostly rural counties across the country as conspiracy theories about voting machines have spread widely among conservatives.

Forestieri and DeHaan had questioned the legitimacy of state election law and court decisions disallowing photo ID checks and voter residency challenges. They falsely claimed in a letter that the vote was “illegal” and “very uncertain.”

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“Trump extends election-rigging myth to his potential criminal charges”


Former president Donald Trump opened the first mega-rally of his 2024 campaign by playing a recording of the national anthem sung by inmates charged in the riot at the U.S. Capitol on Jan. 6, 2021.

In the 90-minute remarks that followed on Saturday, Trump repeatedly emphasized — even more than in last year’s rallies for the midterms — his false insistence that the 2020 election was stolen from him. But he added a new twist: that his political opponents were now bent on rigging the next election against him through the prospect of criminal charges.

“This is their new form of trying to beat people at the polls,” Trump elaborated to reporters on his flight home from the rally, according to a recording obtained by The Washington Post. “This is worse than stuffing the ballot boxes, which they did.”

Saturday’s speech by the early polling leader for the Republican nomination shows how Trump is seeking to adapt the stolen election myth, continually absorbing new allegations when old ones are debunked or obsolete — from supposed foreign plots to tamper with voting machines to alleged manipulation of social media and now potential prosecution. The latest version also underscores Trump’s continued determination to elevate conspiracy theories with inflammatory rhetoric that has already inspired violence by his supporters, which he continues to downplay or defend.

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“Top Republicans balk at Trump highlighting Jan. 6 rioters, calling it politically unwise”

NBC News:

Top Senate Republicans broke with former President Donald Trump on Monday over his decision to feature video of Jan. 6 rioters at his weekend rally in Texas.

Some disagreed with his judgment in playing a video that exalts those who took part in the attack on the Capitol and were arrested, rejecting the narrative in pro-Trump circles that the rioters were “peaceful” protesters. Other Republicans said it is an unwise political strategy for Trump to focus on the attempted insurrection as he seeks a comeback bid in 2024.

“People who violated the law should be prosecuted. And they have been,” Sen. John Cornyn of Texas, who previously held the No. 2 spot in Senate Republican leadership, told NBC News.

“I just frankly don’t understand this, you know, retrospective look,” he said. “When it comes to running for president or any other office, people don’t want you to relitigate all your grievances in the past. They want to know what your vision for the future is. And so I don’t think it’s a formula for success.”

Sen. Lindsey Graham, R-S.C., a Trump ally and golfing partner, broke with the ex-president’s view.

“January 6 was one of the worst days in American history. Everybody’s entitled to due process,” he said, adding that “if you’re trying to suggest that those who were involved in January the 6th are some kind of hero? No.”

“There will be no effort on my part to whitewash January 6,” he added.

Senate Minority Whip John Thune, R-S.D., referred to his past comments condemning the Jan. 6 violence and questioned Trump’s decision to keep focusing on that day.

“It’s living in the past,” Thune said. “And I think most— more people want to hear about the things you’re going to do to make the future better and brighter for them.”

At a campaign rally Saturday in Waco, Texas, Trump began by playing the song “Justice For All,” which, according to an announcer, was recorded by “Donald J. Trump and the J6 choir.” The song played as Trump put his hand over his heart, as an accompanying video featured actors portraying Jan. 6 defendants in jail cells and actual footage of the rioters violently breaching the Capitol on Jan. 6 as Trump recites the Pledge of Allegiance. The video was posted by the Right Side Broadcasting Network.

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“”The Dangerous Journey of John Eastman; How a mild-mannered law professor became the architect of a scheme to overturn a presidential election”

Garrett Epps in the Washington Monthly:

I reached out to Eastman for an interview, and to my surprise, he accepted gladly. When we spoke on the phone, he was exactly as I remembered—charming, voluble, seemingly candid, eager to engage in debates over legal theory. There was no hint that I was talking to a man brought to bay by some very powerful forces and facing the full shaming power of the Twitterverse; indeed, the conversation was more like a skull session one might have with a colleague in the faculty lounge. In no way did he admit, or seem to feel, that he had done anything wrong, or, except in the most general way, fire back against his accusers.

As a class, law professors are among society’s mildest, most rule-oriented members. We cite, analyze, and apply the law; we criticize it; we suggest improvements. We imagine new situations and suggest new doctrines to respond to them. We draft proposed statutes and regulations. We testify before legislative hearings. 

We advocate for our ideas. We push the constitutional envelope and sometimes suggest unprecedented actions. And sometimes we advise private clients, government figures, and other lawyers. We pretty much don’t, as part of a normal career, conspire to violate the law; for constitutional scholars like John Eastman and me, it’s very unusual to be accused of conspiring to overthrow the government. 

I can’t help seeing Eastman’s story as a cautionary tale about the peril that awaits all of us when we venture out of the daily world of rules and norms and into the shadow world created by a figure like Trump, whose persistent message is that he is above the law—indeed, that the very idea of “law” is irrelevant to someone like him—and that if we follow him, we can be above the law as well. I also think Eastman’s story tells us something about a serious wrong turn American conservatism took a quarter century ago, and about the dangerous path the Republican Party seeks to guide the nation on.

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Issue 2 of Fordham Voting Rights and Democracy Forum Now Available


Current Issue: Volume 1, Issue 2 (2022)



Moore v. Harper and the Consequential Effects of the Independent State Legislature Theory
Chase Cooper


The Looming Threat of the Independent State Legislature Theory and the Erosion of the Voting Rights Act: It is Time to Enshrine the Right to Vote
Javon Davis


A Constitutional Right to Early Voting
David Schultz


A Modern-Day 3/5 Compromise: The Case for Finding Prison Gerrymandering Unconstitutional Under the Thirteenth Amendment
Shana Iden


A Government of Laws and Not of Men: Why Justice Brandeis Was Right to Assume Congress Can Restrain the President’s Removal Power
Danielle Rosenblum


De-class-ifying Microtargeted Political Advertisting
Jacob Kovacs-Goodman



Rucho in the State: Districting Cases and the Nature of State Judicial Power
Chad M. Oldfather


Citizen Enforcement Laws Threaten Democracy
David A. Carrillo and Stephen M. Duvernay

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Census to Release Data on Differential Privacy Method

In response to a FOIA lawsuit brought by Harvard Law School’s Election Law Clinic on behalf of Columbia political scientist Justin Phillips, the Census Bureau announced today that it will release the data needed to assess the performance of the differential privacy method that was used to protect privacy in the 2020 Census.

The U.S. Census Bureau announced today that it will release files that the Election Law Clinic at Harvard Law School had sought through litigation in order to evaluate possible bias in the 2020 Census. 

The Election Law Clinic and Selendy Gay Elsberg PLLC represent Dr. Justin Phillips, a political scientist at Columbia University, in litigation to enforce a Freedom of Information Act (FOIA) request for the files. These data may reveal unintended distortions in 2020 Census data, which are used to distribute political power and resources and to conduct research across disciplines.   

Scholars have contended that the privacy protections adopted by the Census Bureau for the 2020 Census may have systematically skewed the data used for redistricting in a way that underrepresents people of color. In order to determine whether that skew exists, and if so, how large that bias is, Dr. Phillips had filed a FOIA request with the Bureau on July 7, 2022. 

Dr. Phillips’s FOIA request sought two files (called the “noisy measurements files”) that would enable outside observers to determine whether the published data from the 2020 Census are systematically skewed. The first is a demonstration file based on 2010 Census data. The second is the actual noisy measurement file used to generate the final 2020 Census data. 

Dr. Phillips sued the Census Bureau to enforce his FOIA request on October 31, 2022. On December 1, 2022, the Bureau denied Dr. Phillips’ request for the files, contending that the 2010 file had been deleted, and the 2020 file was exempt from release under FOIA. 

Reversing course, in January 2023, the Bureau announced it would recreate and publish the 2010 noisy measurement file. The 2010 file is due to be released on April 3. The Bureau further announced today that it will release the 2020 file, with a schedule for release still to be set. View the full statement here.

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“Issue One and the Alliance for Securing Democracy at the German Marshall Fund publish new report calling for key election investment and reforms”


Today, Issue One and the Alliance for Securing Democracy at the German Marshall Fund released a new report that outlines thirteen steps the federal government and state legislatures should take to make our elections stronger and more secure going into 2024. Securing 2024: Defending US Elections through Investment and Reform is anchored by key recommendations that have had strong bipartisan support in recent years.

Nearly all of the proposals included in the report connect to the persistent lack of sufficient federal funding for local and state election administration. Our election infrastructure is chronically underfunded, which forces many elections officials across the country to face difficult budgetary decisions when administering their elections. Ensuring robust annual appropriations for election funding is a critical step to help state and local election officials meet basic modernization, staffing, and security needs, as well as implement many of the other reforms detailed in the report.

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“Did voter fraud kill Edgar Allan Poe?”


He’s our reigning master of the macabre, whose ghostly imagination still transports us to the eeriest of places. But one of Edgar Allan Poe’s darkest stories didn’t come from his pen. It’s the haunting mystery of his own death.

On a fall morning in 1849, Poe died in a Baltimore hospital after a stranger had found him “in great distress” a few days earlier outside a polling place during an election. The 40-year-old had been missing for almost a week. His deathbed symptoms — fever and delusions — were so vague that they’ve spawned dozens of theories, including poisoning, alcoholism, rabies, syphilis, suicide and homicide.

Now an Ohio journalist has conducted an extensive investigation into Poe’s death. In his new book, “A Mystery of Mysteries: The Death and Life of Edgar Allan Poe,” Mark Dawidziak contends that the evidence points to tuberculosis, an illness that is forever linked to artistic genius and literary martyrdom. But he says there’s a co-conspirator: an affliction known as election fraud.

Dawidziak believes that Poe failed to get proper medical care because he was “cooped” — an election-rigging scheme at the time that involvedsnatching someone from the streets, confining and perhaps drugging him, then trotting him out to vote again and again.

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“Another political hush-money case offers clues to a possible Donald Trump defense”

Fredreka Schouten for CNN:

Americans have heard the story before: A lurid tale of a presidential candidate accused of arranging hush-money payments to conceal an alleged affair.

But if former President Donald Trump is indicted by a Manhattan grand jury in connection with a pre-election payment to porn star Stormy Daniels, the case of another politician – two-time Democratic presidential candidate John Edwards – offers clues to the defense Trump is likely to mount.

More than a decade ago, Edwards beat charges that he had broken federal campaign finance laws as part of an elaborate scheme that involved two of his donors supplying nearly $1 million in secret payments to hide his pregnant mistress during the 2008 presidential campaign.

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“GOP states press voter photo ID rules, with unclear effects”


As Ohio’s primary approaches, a strict new photo ID requirement is stirring concerns for military veterans and out-of-state college students, in Amish communities and among older voters.

Other Republican-led states are moving in the same direction as they respond to conservative voters unsettled by unfounded claims of widespread fraud and persistent conspiracy theories over the accuracy of U.S. elections. Critics characterize such requirements as an overreaction that could end up disenfranchising eligible voters.

Ruth Kohake is among those caught up in the confusion over Ohio’s law, which is going into effect this year. The retired nurse from Cincinnati gave up her driver’s license and her car in 2019. Now 82, she thought she might never have to step foot in another state license agency.

But Ohio now requires an unexpired photo ID in order for someone to vote, and she’ll have to get that at the Bureau of Motor Vehicles. The law adds passports as valid ID, but eliminates nonphoto documentation such as a bank statement, government check or utility bill for registration and in-person voting. Military IDs also are no longer acceptable when registering to vote….

Of 35 states that request or require a photo ID to vote, Ohio is now the ninth Republican-controlled state to move to a strict law allowing few to no alternatives, according to the National Conference of State Legislatures. Fifteen states allow other ways voters can verify their identify, such as an electric bill, bank statement or signature match….

Backers of the photo ID requirements have widely moved away from the argument that such laws prevent voter fraud, which happens only rarely. The conservative Heritage Foundation’s database lists only 26 convictions for voter impersonation fraud — the type deterred by photo ID requirements — anywhere in the U.S. between 2004 and 2022. In presidential elections alone, Americans cast more than 645 million votes during that period.

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