Category Archives: political parties

My Forthcoming Yale Law Journal Feature: “The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law”

I have written this draft, forthcoming this spring in Volume 134 of the Yale Law Journal. I consider it my most important law review article (or at least the most important that I’ve written in some time). It offers a 30,000-foot view of the state of election law doctrine, politics, and theory. The piece is still in progress, so comments are welcome. Here is the abstract:

American election law is in something of a funk. This Feature explains why, what it means, and how to move forward.

Part I of this Feature describes election law’s stagnation. After a few decades of protecting voting rights, courts (and especially the Supreme Court), acting along ideological—and now partisan—lines, have pulled back on voter protections in most areas of election law and deprived other actors including Congress, election administrators, and state courts of the ability to more fully protect voters rights. Politically, pro-voter election reform has stalled out in a polarized and gridlocked Congress, and the voting wars in the states mean that ease of access to the ballot depends in part on where in the United States one lives. Election law scholarship too has stagnated, failing to generate meaningful theoretical advances about the key purposes of election law.

Part II considers the retrogression of election law doctrine, politics, and theory to a focus on the very basics of democracy: the requirement of fair vote counts, peaceful transitions of power, and voter access to reliable information. Courts on a bipartisan basis in the aftermath of the 2020 election rejected illegitimate attempts to overturn Joe Biden’s presidential election victory. Yet the courts’ ability to thwart attempted election subversion remains a question mark in light of the Supreme Court’s recent decisions in Trump v. Anderson and Trump v. United States. Politically, Congress came together at the end of 2022 to pass the Electoral Count Reform Act to deter future attempts to manipulate electoral college rules in order to subvert election results, but future bipartisan action to prevent retrogression seems less likely. Further, because of the collapse of local journalism and the rise of cheap speech, voters face a decreased ability to obtain reliable information to make voting decisions consistent with their interests and preferences. Meanwhile, parties have become potential paths for subversion. Party-centered election law theory and the First Amendment “marketplace of ideas” theory have not yet incorporated these emerging challenges.

Part III considers the potential to transform election law doctrine, politics, and theory in a pro-voter direction despite high current levels of polarization, the misperceived partisan consequences of pro-voter election reforms, and new, serious technological and political challenges to democratic governance. Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression. The first order of business must be to assure continued free and fair elections and peaceful transitions of power. But the new election law must be more ambitiously and unambiguously pro-voter. The pro-voter approach to election law is one grounded in political equality and based on four principles: all eligible voters should have the ability to easily register and vote in a fair election with the capacity for reasoned decisionmaking; each voter’s vote is entitled to equal weight; the winners of fair elections are recognized and able to take office peacefully; and political power is fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.

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“Record number of open primary initiatives on the ballot”

Pluribus:

Voters in as many as half a dozen states will decide this year whether to open primary elections to independent and crossover voters in what supporters say is the broadest-ever assault on the traditional partisan primary process.

Ballot initiatives to open partisan primaries to all voters have qualified for November’s election in Nevada, South Dakota, Idaho and the District of Columbia. A Maricopa County judge ruled on Friday that Arizona’s version qualified for the ballot. Supporters of open primaries are waiting for final determinations in Colorado and Montana, too….

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State of the Parties: Georgia

The Atlanta Journal Constitution provides a window into the Georgia Republican Party. In a period, when Democratic Party leaders have been doing precisely what they are supposed to do (broker internal conflicts and usher the party toward electoral success), Trump has once again been sowing division. His renewed attacks on Governor Brian Kemp are worrying to Georgia’s GOP and are cited as one of the reasons that several forecasters have placed Georgia back in the toss-up category. Trump’s recent focus on the Georgia Elections Board, with his three Republican allies, should probably be viewed as part of this story. In addition to expanding local official’s discretion to delay certification of election result (extremely concerning for the Harris campaign, I would think!), the Board has re-opened an investigation of Fulton County’s 2020 count.

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“Governing the House with Multiple Parties”

Lee Drutman and Rob Oldham at New American have published a new report exploring how multiple parties in Congress might affect governance. This is huge. Any move toward structural reform must demonstrate that legislatures would be better able to deliver policies to the American public under the new system than under our existing system. Toward this end, Drutman and Oldham suggest specific changes to congressional rules that could (a) ensure that factions with political parties were rewarded for their contributions to the governing coalition (such as through committee assignment), while also (b) preventing such factions from easily bringing down the coalition with the majority.

I am SUPER excited to read this!

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“Kamala Harris Replacing Joe Biden Is Not Antidemocratic; Hey Republicans, No Coup for You”

I have written this piece for Slate. It begins:

With news of President Joe Biden’s withdrawal from the presidential race, some Republicans are claiming he cannot be removed from the presidential ballot in November and in any case it is undemocratic to do so. The first claim is legally unsupported and the second one is ludicrous. I fully expect the Democrats’ legitimate nominees for president and vice-president to be listed on the ballot in November….

To the extent that there’s even the hint of a legal issue, it’s not over whether it’s Biden or someone else who is the Democrats’ nominee, but about the timing of choosing the official nominee. The key is that nomination happens in time to get the candidate on the ballot in each state. For instance, Ohio originally had a ballot deadline that was before the Democratic National Convention, leading to a risk that no Democratic nominee would be listed on the ballot in that state. Ohio changed its law to a later deadline to accommodate the late convention. As I explained at Election Law Blog, there’s a hyper technical argument that Ohio could still contend that a nomination coming from Democrats after their convention would be too late. This was the purported reason Democrats were going to do an early virtual roll-call vote to choose Biden. (I think the real reason for an early roll call was for partisans to lock Biden in, not to avoid litigation)…

In a handful of other states, including Washington state, there is a different ballot access timing issue that could trigger a lawsuit. (The issue is even more technical and has to do with an election administrator’s power to extend a legislative deadline in a presidential election.) For this reason, Democrats would be smart to still do that virtual roll call by August 7 if they’ve coalesced around Vice President Kamala Harris or another candidate. That would avoid even the small risk of a serious lawsuit.

But even if the DNC holds an open convention and the nomination comes during the convention, I am confident that the Democrats’ nominee will be on the ballot in all 50 states, either because legislatures will change the rules to grant ballot access to the Democrats’ nominee or courts will require it.

And then this brings us to the complaints that there’s something anti-democratic about this whole process, that it is somehow overturning the will of the Biden voters in choosing a new nominee. This is a crazy complaint. Until the 1960s, it was not uncommon for party nominees to be chosen by party insiders. We even have the cliched “smoke-filled room” where this used to happen. The undemocratic nature of that process led to the party reform we have today where most delegates are chosen by the people and vote at the convention.

If Biden wanted to remain in the race and delegates who were chosen for Biden in the primary process decided to vote for someone else, there would be something to this small-d democracy argument. Voters wanted Biden and the delegates didn’t listen.

But Biden has withdrawn. He’s voluntarily decided he can’t go forward. The party has democratic procedures in place for such an eventuality, just as if a candidate dies before being nominated. The whole point of doing a convention is to have a safety valve for something like this. (And I always fear what would happen if a candidate dies after nomination and listing on the ballot, when things could get very dicey.)…

It takes a special kind of chutzpah for Trump supporters to say it’s a “coup” when Democrats conduct a fair and democratic process for replacing a withdrawn candidate. Trumpists could learn a lot about the democratic process in watching what’s happening on the other side of the aisle.

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The Virtual Roll Call and Harris’s Candidacy

After President Biden’s historic announcement earlier today, many people are wondering what will happen next. While no one yet knows for sure, there’s been speculation about the possibility of an open convention or even a “blitz primary.” But the process could turn out to be much quicker and simpler than that.

Before Biden’s withdrawal, the DNC had been planning to have delegates vote through a pre-convention virtual roll call. This was originally intended to address the Ohio’s early deadline for ballot access, but became unnecessary once the state changed its law to accommodate the Democratic Party’s relatively late convention (August 19-22). The DNC was nevertheless planning to conduct this virtual roll call — at first in July, before pushing it back to early August under pressure. It offered some pretty flimsy legal justifications, when the real reason appeared to be running out the clock on those seeking to replace Biden as the nominee.

Now that Biden’s out, it’s unclear whether the DNC will still proceed with the virtual roll call, according to Politico (which reports that it didn’t immediately receive an answer to this question from the DNC). The legal reasons for having this pre-convention vote are still flimsy. But with Democratic leaders and delegates quickly falling in line behind Vice President Harris, there are practical reasons why the party might want to proceed in that fashion.

Having a virtual roll call in early August would avoid a contested convention, with all the risks that entails. If Harris’s nomination is a done deal by then, it will allow for the convention to be a more scripted event celebrating the nominee, as has become the norm. It would also avoid a public intra-party fight, for which I suspect few Democrats have an appetite after the last few weeks.

So while an open convention would undoubtedly be entertaining to watch, I doubt we’ll see that. It’s possible that delegates will vote to nominate Harris before the convention even begins.

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“Stop panicking. Replacing Biden on ballots isn’t a problem.”

Andy Craig in MSNBC: “There is no credible basis for the claims that the Democratic Party’s candidate for president, whoever that may be, will be kicked off the ballot in any state. As things stand currently, no relevant deadlines have passed. The party remains perfectly free to choose its nominee however it wants, and to choose whomever it wants.”

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Breaking: Biden Out — What Happens Now?

First of all, wow! His “My Fellow Americans” letter may be found here. The key paragraph:

It has been the greatest honor of my life to serve as your President. And while it has been my intention to seek reelection, I believe it is in the best interest of my party and the country for me to stand down and to focus solely on fulfilling my duties as President for the remainder of my term. 

Democrats now have to choose a nominee, and we’re in uncharted territory (at least in the modern era). The Washington Post has this graphic explanation of what could happen next this morning, Jeff Greenfield this piece in Politico yesterday, and Vox this one just a few minutes ago. More to come, I’m sure . . .

Update: Biden has issued a second statement, endorsing VP Harris to be the party’s nominee.

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“Republicans could file challenges if Biden replaced, Speaker Johnson says”

Politico on the Speaker’s smoke blowing: “Technically, Biden has not yet been formally nominated to be the Democratic presidential candidate and won’t be until a vote of the delegates selected to the Democratic National Convention. Still, Johnson said there might be grounds for a challenge, given that Biden was the overwhelming winner of the party’s primaries.”

No, there wouldn’t.

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“Ohio’s Phantom Menace”

Politico reports that the DNC is forging ahead with its plan for a pre-convention virtual roll call, originally planned to address the since-resolved Ohio ballot access problem: “The Democratic National Convention Rules Committee met virtually on Friday to outline plans for the virtual roll call vote and announced they would meet no later than next Friday, July 26, to vote on the rules. Virtual voting by convention delegates is scheduled to start no earlier than Aug. 1.” More background on the pretextual (in my opinion) basis for forcing an early delegate vote here and here.

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“Biden and Trump Have Succeeded in Breaking Reality”

From M. Gessen in NYT, an astute commentary on where we’re at:

Biden and Trump represent entirely different values and policies…. Biden is right: Trump poses an existential threat to democracy.

But both campaigns are creating a sense of unreality, in presenting politics as formulaic spectacle, abstracted from the actual politics each candidate represents and from people’s lived experiences….

Autocrats and aspiring autocrats, whatever their political orientation, have been telling this story for a long time. They say that the country is on the verge of catastrophe and that only one person — the great leader — can save it. They use this rhetorical strategy because it works. That is, it works in times when a critical number of people are feeling insecure, precarious, frightened, as many Americans clearly are….

It’s tempting to say that Trump’s autocratic movement has spread like an infection. The truth is, the seeds of this disaster have been sprouting in American politics for decades: the dumbing down of conversation, the ever-growing role of money in political campaigns, the disappearance of local news media and local civic engagement and the consequent transformation of national politics into a set of abstracted images and stories, the inescapable understanding of presidential races as personality contests.

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“Joe Biden, Kamala Harris or Someone Else? The Convention Rules Might Decide.”

Jeff Greenfield’s deep dive into party rules and procedures, in Politico Magazine:

Whether or not President Joe Biden drops his bid for reelection amid rising pressure from party leaders, there’s a very good chance that the Democratic convention will be more contested than any in more than a half century….

That means that the convention rules, including who can vote on what ballot and how free the delegates are, will play a crucial, even decisive role. It requires a close look at a process riddled with tricky issues: delegates who are “pledged” but not necessarily “bound”;party insiders who cannot vote on the first ballot, except when they perhaps can; delegates who are free to vote their choice except when they can’t.

And all of these factors will lead to different outcomes depending on whether the convention will see an embattled president fighting a serious challenge to his renomination or a convention that must choose a successor to a president who has chosen to stand down. Further putting things up in the air is the early virtual roll call to nominate Biden that the DNC currently has planned, but which is being fiercely resisted by those who do not want a Biden nomination locked up before the convention even begins.

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“Republicans say they will trust the election results as long as Trump wins”

From the Washington Post:

Despite the brimming confidence of Trump supporters, the campaign is preparing them to question the results if things don’t go their way. Trump has preemptively questioned the outcome of the election, sowing doubt in the results long before votes have been cast. In his convention speech on Thursday, he falsely said Democrats “used covid to cheat” in the 2020 presidential election.

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