The ACLU, the League of Women Voters, and other groups have filed an amicus brief in support of the standing claim raised by candidate for Congress Michael Bost in Bost v. Illinois State Bd of Elections. Bost is seeking to argue that Illinois is violating federal law by permitting absentee ballots to be counted in federal elections if postmarked by Election Day, even if they are received some number of days after Election Day. In an earlier blog post, I said the Court had been right to take this case, given the importance of the standing issue.
The ACLU argues that Bost should have standing, even though it strongly disagrees with his position on the merits. Interestingly, the ACLU argues that a candidate like Bost should have standing based on the “diversion-of-resources” theory of standing, which organizations (like the ACLU and LWV) frequently rely on for standing. The ACLU does not rest its standing argument on the idea that candidates have “competitive standing” to challenge state election laws.
Here’s an excerpt from the amicus brief explaining why candidates, like Bost, should have standing in contexts like this challenge to Illinois election law:
Equally to the point, it is not merely Representative Bost’s choice to monitor incoming mail ballots during the post-Election Day period, as the court of appeals wrongly suggested. It would be political malpractice not to do so. Candidates and civic groups working on elections have to conduct their work in response to the legal framework governing the election in question. Electoral regulations, no less than business regulations, “‘may be likely’ to cause injuries” to parties other than those who are directly compelled to action by forcing them to spend resources and thus incur potential economic harms. Diamond Alt. Energy, 145 S. Ct. at 2136 (citing AHM, 602 U.S. at 384). Here, Illinois’s regulation of the mail ballot process, predictably and as a matter of “commonsense economic realit[y],” “may cause downstream or upstream economic injuries” to candidates, voters, voter registration groups, or political parties. Id. Allowing mail ballots to arrive up to fourteen days after Election Day necessarily means those who must build their efforts around the operative election rules, like campaigns and nonpartisan civic groups whose core activities include election-related work, will continue their election-monitoring, ballot-chase, and other operations, with all the economic effort that entails….
Candidate standing to challenge election rules that effectively force their campaigns to incur expenditures, draining resources from other campaign functions, fits comfortably within this Court’s long line of cases recognizing standing based on economic injuries, including by resource diversion. If a challenged electoral rule tangibly affects the way a candidate campaigns, by altering in specific, articulable ways how they spend their limited staff or volunteer time, money, and resources, it can result in a concrete injury.
A landmark report to be released on June 18 by the Robert J. Dole Institute of Politics and the Edward M. Kennedy Institute for the United States Senate finds that local election administrators consistently lack sustained funding, adequate staffing, and necessary technology at a time of intense public scrutiny and diminished trust in voting results.
The comprehensive anthology report created through the Kennedy and Dole Institutes’ Bolstering Elections Initiative gives election administrators and policymakers the data and research necessary to bolster voting infrastructures at the state and local levels. The report, “Bolstering Funding and Practices for Resilient Elections: Sustainable Funding and Models of Success at the State and Local Level,” was made possible by a grant from the Election Trust Initiative.
“Now, more than ever, the story of the election professionals who conduct our elections, often on a shoestring budget, needs our attention,” said Tammy Patrick, senior advisor to the Bolstering Elections Initiative. “Administrators in cities and in rural areas; in red states, blue states and swing states; those who were elected, appointed, or hired as a public servant; Republicans, Democrats, and unaffiliated officials; all are better able to serve their voters and communities when they are sufficiently supported with the tools and resources the American Voters deserve. Election administration should not be a partisan issue.”
Full report with some top folks in the field contributing.
I’ve been reading Lawless Republic: The Rise of Cicero and the Decline of Rome, by Josiah Osgood. I came across this striking passage on campaign finance issues in elections in 66 BCE, which shows that some of the same issues that affect campaign finance issues today have been around for more than 2,000 years.
As you can see, the Romans struggled over how to define the law between legitimate campaign finance activity and bribery. They also worried that defining bribery too expansively would lead to the weaponization of campaign finance laws. Plus ça change…:
This is from the WSJ, which is paywalled. To put this in a broader perspective, the combined “favorability” of both parties is -41% (Rs at -11%, Ds at -30%), which is the worst combined ratings for the two parties since this poll began in 1990.
This is consistent with the general, precipitous decline in support for the traditionally dominant center-right and center-left parties throughout Europe. I have a good deal to say about that in the 2025 John S. Sullivan Lecture I delivered at Capital University, titled The Decline of Political Authority: Legal and Political Challenges in Western Democracies, 2015-2025. I’ll be posting that soon.
From the WSJ article:
The Democratic Party’s image has eroded to its lowest point in more than three decades, according to a new Wall Street Journal poll, with voters seeing Republicans as better at handling most issues that decide elections.
The new survey finds that 63% of voters hold an unfavorable view of the Democratic Party—the highest share in Journal polls dating to 1990 and 30 percentage points higher than the 33% who hold a favorable view.
Democrats have been hoping that a voter backlash against the president will be powerful enough to restore their majority in the House in next year’s midterm elections, much as it did during Trump’s first term. But the Journal poll shows that the party hasn’t yet accomplished a needed first step in that plan: persuading voters they can do a better job than Trump’s party….
“The Democratic brand is so bad that they don’t have the credibility to be a critic of Trump or the Republican Party,” said John Anzalone, a Democratic pollster who worked on the Journal survey with Republican Tony Fabrizio. “Until they reconnect with real voters and working people on who they’re for and what their economic message is, they’re going to have problems.”
The only issues on which voters prefer congressional Democrats to Republicans, among the 10 tested in the Journal survey, are healthcare and vaccine policy.
“The Democratic brand is so bad that they don’t have the credibility to be a critic of Trump or the Republican Party,” said John Anzalone, a Democratic pollster who worked on the Journal survey with Republican Tony Fabrizio. “Until they reconnect with real voters and working people on who they’re for and what their economic message is, they’re going to have problems.”…
Because anger is a stronger motivator to vote than satisfaction, the angry town-hall gatherings suggested to many Democrats that the next election could look something like Trump’s first midterm, in 2018, when Republicans lost at least 40 House seats and their majority in the chamber, restoring Democratic Rep. Nancy Pelosi to the speaker’s office. …
But the new Journal survey shows that the political environment today looks different now than in Trump’s first term.
At about this point in 2017, more voters called themselves Democrats than Republicans by 6 percentage points in Journal polling. The Democratic tilt meant that many Republicans, in a sense, were running uphill even before they started, depending on the makeup of their House district….
Now, more voters identify as Republicans than as Democrats, a significant change in the structure of the electorate—and a rarity in politics. Republicans last year built their first durable lead in more than three decades in party identification, and they have maintained that lead today. In the new Journal survey, more voters identify as Republicans than as Democrats by 1 percentage point, and the GOP led by 4 points in the April poll.
It’s been nearly a month since the Court announced it would hear re-argument in this case and would issue a supplemental order with additional questions to be briefed. That’s a surprisingly long delay.
The Court rarely orders cases to be re-argued, particularly outside the context in which the Court has only eight Justices at the time the case is argued initially, is internally divided 4-4, and orders re-argument once a ninth Justice is on board (those re-arguments typically happen within the same Term in which the case was first heard). In Citizens United, the Court’s re-argument order included the additional questions to be argued. That order came down at the end of June of that Term. In Kiobel v. Royal Dutch Petroleum Co., the Court ordered re-argument six days after the original argument and specified the additional issue to be briefed.
To speculate, perhaps the Court is going to introduce several questions to be argued and the Justices are going back and forth on how exactly to frame those various questions. I’ve also wondered about whether one or more Justices might be writing a dissent from the re-argument order. I’m not sure if that’s ever happened. I’ve also thought about whether the Court could be holding the re-argument order until it gets the cert. papers in the Turtle Mountain Band case on whether Sec. 2 of the VRA creates a private right of action, but that doesn’t seem too likely. But it’s a bit mysterious as to why the re-argument order has not come down yet.
This WSJ article confirms what I have been saying for a while now (see also here), that small donors tend to fuel the more ideological wings of the parties. That’s all the more true for out of state (or out of district) small donors. There’s nothing wrong with that. The policy issue is whether public financing of elections should be based on the preferences of small donors, such as in proposals to provide public matching funds in proportion to the amount of small donations a candidate raises.
The contrast between the two women highlights how Democratic small-dollar donors, an increasingly important group as more fundraising moves online, often are biased in their support of ideological favorites rather than focusing on just those in competitive races.
Among the 10 incumbent Democrats who raised the most from individual donors this year, six are members of the Congressional Progressive Caucus, a Wall Street Journal analysis of campaign finance disclosures shows. Three of the top four are progressives, with the exception of House Minority Leader Hakeem Jeffries (D., N.Y.).
The financial strength among progressives presents a challenge to party leaders trying to nudge the Democratic message closer to the middle, where they might stand a better chance of winning over independent voters who decide close elections….
John Lapp, executive director of the Democratic Congressional Campaign Committee in 2006 when the party won control of the House, said it is often the case that “more provocative stars in the Democratic Party” raise the most money….
Like AOC, Mamdani is a study in the power of small-dollar donations. While his average contribution has been the smallest of any of the mayoral candidates, according to New York City Campaign Finance Board data, he has still managed to be competitive in fundraising because he has had so many more donors than others.
In a sign of Mamdani’s growing national prominence among progressives, roughly half of the dollars he raised during the period came from outside New York City. His campaign had roughly $2.5 million on hand as of July 11….
The fundraising success for progressive candidates comes as traditional depositories for dollars in the party are struggling with their fundraising.
The Republican National Committee, benefiting from GOP control of Washington, had almost $81 million in cash reserves as it started July, compared with $15 million for the Democratic National Committee. Overall, the DNC raised roughly 20% less than it did in the first six months of 2021, a comparable period in the election cycle, and has in the bank a quarter of what it did four years ago….
Some Democratic committees are working to try to keep small-dollar donors focused on the races that matter the most.
Since Rucho, it’s been generally assumed that attempting to litigate against partisan gerrymanders in federal court is an utter nonstarter. I think this is largely correct, but it light of all the recent discussion over the efforts to make the Texas map even more tilted towards Republicans, it is worth speculating a bit whether there are any plausible arguments remaining after Rucho purported to slam the federal courthouse door shut.
One idea that I’ve written about in at least a couple of pre-Ruch law review articles (The Gerrymander and the Constitution and Constitutional Preservation and Judicial Review of Partisan Gerrymanders), and which was not considered–and thus not rejected–in Rucho, is the idea of a “dormant” Elections Clause analogous to the “dormant” Commerce Clause. The Election Clause of Article I, section 4, lends itself to this kind of “dormant” jurisprudence insofar as it explicitly gives Congress the power to override state laws regulating the procedures of congressional elections. Congress thus needs to retain the ultimate authority over these procedures, just like Congress needs to retain ultimate regulatory power over interstate commerce. But the theory of the “dormant” Commerce Clause is that the federal judiciary can aid Congress in the exercise of its ultimate constitutional authority if it sees state laws that appear fundamentally at odds with the purpose of the constitutional clause. If the judiciary errs in this respect, Congress can correct that error.
This same theory could, and should, apply to the Elections Clause. If a state legislature regulates congressional elections that appear fundamentally at odds with the basic purpose of having the federal House of Representatives chosen “by the people of the several States,” then the federal judiciary could nullify that state law subject to ultimate oversight by Congress itself. The advantage of this “dormant” Election Clause approach, in contrast to the constitutional claims argued in Rucho, is that it does not give the judiciary the last word on congressional redistricting.
While I’m not holding my breath waiting for the Roberts Court to embrace this “dormant” Election Clause theory, it’s at least worth noting that it would avoid what appears to be Chief Justice Roberts’s main concern in his opinion for the Court in Rucho, namely a constitutional doctrine that would put the federal courts in charge of congressional redistricting. Maybe there is at least some small chance that five justices on the current Court would see the whole Madisonian system so out-of-kilter currently, that they would attempt to restore so equilibrium by exercising a “dormant” Election Clause jurisprudence over extreme partisan gerrymanders, subject to the supervision of Congress to approve whatever congressional maps it wishes.
A new Common Ground Democracy post with this subtitle: “The upcoming U.S. Senate election in Texas perfectly illustrates the importance of this voting reform.” The post itself begins:
“The University of Chicago’s Center for Effective Government, as part of its “Democratic Reform Primer Series,” has published an introductory explanation of Condorcet Voting co-authored by Eric Maskin and me. I’m honored to continue my collaboration with Eric with this piece and to have it included in this valuable collection of papers.
To understand why publication of this explainer on Condorcet Voting is especially timely right now, look no further than the looming U.S. Senate race in Texas.”
The post concludes:
“I will also be discussing the history of Condorcet Voting and its continuing relevance in a lecture at the University of Melbourne next week. When a video of that lecture is available, I will post it.”
NYT: “President Trump reposted a fake video showing former President Barack Obama being arrested in the Oval Office, as Trump administration officials continue to accuse Mr. Obama of trying to harm Mr. Trump’s campaign during the 2016 election, and the president seeks to redirect conversation from the Epstein files.”
Rice political scientist Bob Stein died yesterday. The Lena Gohlman Fox Professor of Political Science, he served on the Rice faculty for 46 years. Bob was an expert in voting behavior and an active member of the election scholar community. We’ll all miss him.
The Impoundment Act of 1974 was passed with strong bipartisan support in the pre-polarization era. It was designed to reassert congressional control over the budget, while ac acknowledging there might be circumstances in which Presidents had good reasons not to spend money Congress had appropriated. The President can propose funding that he wants to rescind; Congress then has a fixed time period in which it can either approve or fail to approve the President’s request.
In the pre-polarization era, Congress no doubt assumed that Congress would exert independent judgment about any rescission request and that there would be some degree of bipartisan judgment about whether to approve or reject such a request. But we have now seen in the era of polarization and unified government that one party can approve a rescission request from the same party President. And one fallout from this might be that it will make putting together bipartisan deals to pass an actual budget that much harder. With unified government and polarized parties, rescission become like a line-item presidential veto over spending. If any rescission request by a President of the same party as the party that controls the House and Senate will be approved, that is the practical effect.
That would destabilize bipartisan deals over the budget. If one party can unwind that deal during unified government, the other party cannot have confidence the terms of the deal will stick. This would be an ironic, unintended consequence of legislation enacted in a non-polarized era, designed to reassert congressional control over the executive, that is now being applied in our polarized era.
