Category Archives: Uncategorized

“Top State Judges Make a Rare Plea in a Momentous Supreme Court Election Case”

N.Y. Times Sidebar: The Conference of Chief Justices has filed a brief in Moore v. Harper opposing the independent state legislature doctrine. The Chief Justice of the Texas Supreme Court (accurately, in my view), told the N.Y. Times: “It’s the biggest federalism issue in a long time . . . Maybe ever.”

“The conference’s brief, which was nominally filed in support of neither party, urged the Supreme Court to reject that approach, sometimes called the independent state legislature theory. The Constitution, the brief said, “does not oust state courts from their traditional role in reviewing election laws under state constitutions.”

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Status of Judicial Appointments on Eve of Midterms

NBC News: “President Joe Biden has won Senate confirmation for more than 80 of his nominees to be federal judges.” Moreover, “Biden has chosen an unusually diverse slate, with high shares of Black, Latino and Asian American judges, and he has put a premium on nominees with a background as public defenders or civil rights lawyers, picking fewer prosecutors and corporate lawyers.” While the number “outpaces former President Donald Trump at this juncture of his presidency,” it is unlikely the appointments will balance out the courts. Biden is up against the fact that “Senate Republican Leader Mitch McConnell hit the gas in the second half of Trump’s term and brought his total to 231 judges — mostly young conservatives poised to shape American law for generations”–the largest number in a single term in recent decades.

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“Election Deniers Are Pivoting to November. Will Voters Buy It?”


As post-primary pivots go, Don Bolduc’s overnight transformation from “Stop the Steal” evangelist to ratify-the-results convert could land him in a political hall of fame. It was an about-face so sudden and jarring that it undermined the tell-it-like-it-is authenticity with which he’d earned the Republican nomination for Senate from New Hampshire.

But Mr. Bolduc was hardly the only Republican candidate to edge away from his public insistence, despite a lack of evidence, that the 2020 election was stolen from former President Donald J. Trump, or that 2020 had undermined the integrity of American elections.

Blake Masters in Arizona, Tiffany Smiley in Washington State and Dr. Mehmet Oz in Pennsylvania have all made pivots — some artfully, some not — as the ardent, Trump-loyal voters who decided the Republican primaries shrink in the rearview mirror, and a more cautious, broader November electorate comes into view. These three Senate candidates haven’t quite renounced their questioning of the 2020 election — to right-wing audiences of podcasts, radio shows and Fox News, they still signal their skepticism — but they have shifted their appeals to the swing voters they need to win on Nov. 8.

The real question now is: Can they get away with it?

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“Arizona GOP secretary of state nominee stands by election conspiracy theories in debate”


Arizona Republican secretary of state nominee Mark Finchem doubled down on the conspiracy theories that he has espoused about the 2020 presidential election in a debate against Democrat Adrian Fontes Thursday night, asserting that the votes in several key Arizona counties should have been “set aside” even though there was no evidence of widespread voter fraud in the 2020 contest.

“There are certain counties that should have been set aside as irredeemably compromised — Maricopa County was one of them. Yuma County was one of them,” the Republican state lawmaker said, echoing claims he made in a February resolution that called for decertifying the 2020 election results in three Arizona counties — even though legal experts say there is no legal mechanism to do so. “We have so many votes outside of the law that it begs the question, what do we do with an election where we have votes that are in the stream, which should not be counted?”

Finchem, a Republican state representative in Arizona, was endorsed by Donald Trump in September of 2021 after becoming one of the most vocal supporters of the former President’s lies about the 2020 presidential election. Trump is supporting a broad array of election deniers vying for office in November as he continues his unrelenting campaign to undermine and subvert the 2020 results.

Finchem is one of at least 11 Republican nominees running for state elections chief who have questioned, rejected or tried to overturn the results of the 2020 election, as CNN’s Daniel Dale chronicled last month — a trend that has alarmed election experts and increasingly drawn the notice of the public.

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“Ex-voting Official Eyes Safeguards for Election; Neal Kelly Starts National Effort to Ensure Workers are Shielded from Threats”

OC Register:

With less than two months to the midterms and election signs and mailers already abundant, Orange County’s former registrar has launched a national campaign to ensure the safety of election workers and voters in an increasingly volatile and partisan environment.

The Committee for Safe and Secure Elections —chaired by Neal Kelley, who retired in March, and supported by the New York-based Brennan Center for Justice — includes experts in law enforcement and election administration from around the country. Its short-term goal is to connect law enforcement and election officials to address threats and violence against election workers and voters. Over the long haul, the group will look to recommend policies and legislation to address the problem more broadly.

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“Semafor Interview: Facebook could lift Trump’s suspension in January, Nick Clegg says”


Former President Donald Trump could be allowed back on Facebook once a suspension of his account expires in 2023, Nick Clegg of parent company Meta Platforms, said Thursday at an exclusive Semafor Exchange event in Washington, DC.

As the company makes its decision, it will talk to experts, weigh the risk of real world harm and act proportionally, he said. It’s the first time Clegg, who, as president of global affairs is charged with deciding whether to lift the limit, has publicly discussed his thinking.

Trump was prohibited from posting on several online platforms after the January 2021 riots at the Capitol building in Washington, D.C., with Facebook, sister app Instagram, Twitter and Google’s YouTube citing his role in inciting the violence.

“When you make a decision that affects the public realm, you need to act with great caution,” Clegg told Semafor editor-at-large Steve Clemons. “You shouldn’t throw your weight about.”

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Montana Supreme Court EDR Decision

In a case being litigated by Harvard Law School’s Election Law Clinic, the ACLU, the ACLU of Montana, and the Native American Rights Fund, the Montana Supreme Court affirmed preliminary injunctions against (1) the elimination of election day registration and (2) the elimination of student IDs as a valid form of voter identification. The decision is here and is based on the state constitutional right to vote. An excerpt from the ACLU’s press release is below.

The Montana Supreme Court today affirmed a preliminary injunction blocking a state law that hinders Native American participation in the state’s electoral process. 

The decision upholds a preliminary injunction against HB 176, which had ended Election Day registration in Montana. Native American voters living on reservations in Montana disproportionately rely upon Election Day registration to register and vote. . . .

Plaintiffs have also secured a preliminary injunction against HB 530, a prohibition on paid third-party ballot collection in Montana, and yet another law that disproportionately and severely burdens Native Americans’ right to vote.

Last month, the Montana 13th Judicial District Court held a two-week trial in the case, involving challenges to HB 176, HB 530, and two other voting-related laws challenged by consolidated plaintiffs. The Court is expected to rule on the full challenges to those laws in the relatively near future.

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Nine Republicans Join House Democrats in Passing Cheney-Lofgren Bill to Change the Electoral Count Act to Limit the Risk of Election Subverion


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The “Independent” State Legislature in Republican Theory

I have taken the unorthodox step (for me, anyway) of posting an early draft of an essay that I am working on. My take on the independent state legislature theory, forthcoming in a special symposium issue of the Texas A&M Law Review celebrating Professor Richard Epstein, available here.

In this essay, I try to situate the notion of an “independent” legislature in the context of republican principles that prioritize majority rule. Specifically, I explore the question of who is the “state” on behalf of which the legislature deploys power when it chooses electors. I conclude that the “state” is its citizens, whose preferences are conveyed to the state legislature through the state’s electorate and in the state constitution. Thus, the state legislature cannot disregard the preferences of the people at the juncture in which they are exercising oversight and accountability at the core of our system of republicanism: during the election of federal officials.

Thanks for reading, and I welcome any feedback!

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“House Dems’ latest pre-election push: Stopping another Jan. 6”


House Democrats are rapidly pushing ahead on a new bill designed to prevent future election challenges. It carries the added benefit of helping them put Donald Trump back on the midterm ballot.

Lawmakers are expected to vote as soon as Wednesday on a proposal to modernize the 135-year-old law that Trump backers tried to use to their advantage on Jan. 6. After weeks of testing a MAGA-focused message on the campaign trail and the airwaves — one that scorches Republicans for the roles some played in Trump’s failed attempts to claim the second term he lost — the vote gives Democrats a chance to back it up with action.

However, it’s far from clear whether the House version can prevail over a Senate alternative that’s incredibly similar and currently has the necessary GOP support to overcome a filibuster. Republicans in both chambers have panned the House bill, Minority Leader Kevin McCarthy’s team is whipping against it, but Democrats are determined to plant their own election-reform flag ahead of November.

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“The ‘Cost’ of Voting in America: A Look at Where It’s Easiest and Hardest”


Voters in New Hampshire and Mississippi face the highest personal cost in the country in terms of the time and effort required to cast a ballot, according to a new academic study. Voters in Oregon and Washington have it the easiest.

And while residents of Georgia, Florida and Iowa face taller barriers to voting since Republicans tightened their election laws last year, all three states remain roughly in the middle nationally in terms of how easy it is to register and to vote.

That is in part a reflection of the fact that many deep-red states, but also politically divided states like New Hampshire and Wisconsin and deep-blue ones including Connecticut, have had many limits on access to the ballot for years, well before the Republican-led push after the 2020 election to overhaul voting laws.

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