Category Archives: legislation and legislatures

Michigan appeals court finds that proof of compliance with state campaign finance laws is an additional qualification for congressional candidates

A dispute recently arose out of Michigan’s 13th Congressional District. Michael Griffie challenged Adam Hollier’s candidacy and alleged that Hollier filed “a faulty affidavit of identity attesting that he had no outstanding campaign finance issues.” From the Michigan Court of Appeals order in Griffie v. Wayne County Election Commission:

To begin with, guidance issued by the Secretary of State specifically excepts “candidates seeking federal elective office” from the pertinent Affidavit-of-Identity (AOI) requirement, which is evidently based on the Secretary’s altogether reasonable view that said state-law requirement is preempted by federal law or would be unconstitutional as applied to federal candidates. Indeed, although we need not reach those important federal-law issues to decide the instant case, were we to do so, we would be inclined to agree with the trial court’s well-reasoned opinion that the disputed state-law requirement does not apply to a candidate for federal office in the first instance. See generally US Const, Art I, § 2; 52 USC 30143 (providing that the “the provisions of [the Federal Election Campaign Act] . . . supersede and preempt any provision of State law with respect to election to Federal office”); US Term Limits, Inc v Thornton, 514 US 779; 115 S Ct 1842; 131 L Ed 2d 881 (1995) (holding that qualifications for candidates for federal office may not be altered except by amendment to the United States Constitution); Cipollone v Liggett Group, Inc, 505 US 504, 517; 112 S Ct 2608; 120 L Ed 2d 407 (1992) (“When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a reliable indicium of congressional intent with respect to state authority, there is no need to infer congressional intent to pre-empt state laws from the substantive provisions of the legislation.”).

There are some caveats, of course (the court says it won’t reach the issue, then does), and the court addresses both the Article I and the statutory campaign finance preemption issues. A similar issue arose in 2020 with a dispute relating to Congresswoman Rashida Tlaib’s challenger. That case never met it to the merits, but I argued such a rule would be an impermissible additional qualification. Glad to see the Michigan courts agree, consistent with Secretary of State guidance.

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“Texas GOP donors urge Congress to act on gun control measures”

In a full-page ad in the Dallas Morning News, “Major Republican donors, including some who have contributed to Gov. Greg Abbott’s campaigns, joined other conservative Texans in signing an open letter supporting congressional action to increase gun restrictions in response to the mass shooting in Uvalde that left 19 children and two teachers dead last week.” The letter “endorses the creation of red-flag laws, expanding background checks and raising the age to purchase a gun to 21. More than 250 self-declared gun enthusiasts signed it.”

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Is the House GOP feeling the need to show voters the Party can govern?

The Washington Post reports that “House Minority Leader Kevin McCarthy (R-Calif.) plans to unveil a strategy Thursday outlining how Republicans would address climate change, energy and environmental issues if their party gains control of the House in the midterm elections.” The plan is anticipated to focus on “streamlining the permitting process for large infrastructure projects, increasing domestic fossil fuel production and boosting exports of U.S. liquefied natural gas.” It is not clear to me (or the Washington Post) how increasing domestic fossil fuel production will address climate change or the environment. Still, it has been awhile since the GOP has felt the need to offer a policy platform. A very recent PEW poll found significant support for climate change policy. In particular, it found internal policy divisions among Republicans:

  • “66% of self-described moderate and liberal Republicans favor taking steps toward [carbon neutrality].”
  • “67% of conservative Republicans say it should be expanding production of oil, coal and natural gas.”

In all PEW summarized the data on Republican views, “On balance, Republicans and Republican-leaning independents give greater priority to expanding the production of oil, coal and natural gas than to developing alternative energy sources, and they overwhelmingly believe that fossil fuels should remain a part of the energy picture in the U.S.”

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Uvalde, an unlikely opportunity for responsiveness to public sentiment

Public support for gun control, including regulating access to assault-style weapons, is currently extraordinarily high. But will Congress act? It would take ten Republican Senators to break. The odds are not good. And if they did, federal legislation would likely be very weak and its constitutionality uncertain after this term. Still, amidst the gloom, it is worth noting when we see a representative from a district, whose constituents have experienced the horrors of a mass shooting directly, break with the NRA.

Washington Post: “NRA-endorsed Rep. Chris Jacobs (R-N.Y.) broke with the GOP last week and said he now would support an assault weapons ban, magazine capacity limits, raising the age to be able to purchase guns from 18 to 21, and other gun restrictions. The recent shootings in Buffalo and in Uvalde forced him to reevaluate his position on guns, Jacobs told the Buffalo News.

Engaging with one’s constituencies does appear to matter. An under-appreciated cost of campaign fundraising madness is how it pulls elected officials away from spending time in their own districts and listening to their own constituents.

The Post reports further that Representative Adam Kinzinger (R-Ill) made a similar about-face after the 2017 mass shooting in Las Vegas, calling for a ban on bumpstocks. Las Vegas is obviously not his district. Post Uvalde, Kinzinger has stated he is even open to an assault weapons ban.

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Supreme Court Poised to Decide within Weeks Whether to Take Up Case Raising “Independent State Legislature” Theory–with Potential Big Implications for 2024 Elections

The Supreme Court is poised to decide before it breaks for the summer whether to hear Moore v. Harper, a case raising the question whether the North Carolina Supreme Court had the power to rein in the North Carolina General Assembly’s partisan gerrymander of the state’s congressional districts. Opponents of the lawsuit asked to delay filing their opposition until June 20, but the Supreme Court required that briefs be filed by May 20, and they have been. That gives enough time for the Court to decide before the expected end of the term in June or early July whether to hear the case next term. It’s a case with potentially enormous implications for the 2024 elections and beyond.

As issue is the viability of the “independent state legislature theory.” As I explained in this Slate piece, when North Carolina Republicans sought emergency relief in the Supreme Court in this case, this suit “if successful would not only restore the state legislature’s ability to engage in partisan gerrymandering and perhaps tip control of Congress, but would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections.” Further:

The Supreme Court accepting North Carolina’s argument would lead to some horrible consequences. First, it would neuter state courts’ abilities to rein in partisan gerrymandering, further undermining democratic representation. Second, the Supreme Court would be acting in a way that could tip control of Congress to Republicans.

But most importantly, siding with North Carolina could profoundly alter the balance of power between state courts and state legislatures. It could essentially neuter the ability of state courts to protect voters under provisions of state constitutions against infringement of their rights. This would apply not only to redistricting but to laws restricting registration and voting practices. It would allow hostile legislature to run roughshod over legislative rights. It could lead to major voter suppression policed by neither state courts nor federal courts, given the Supreme Court’s shrinking of the federal Voting Rights Act’s protections.

There are some good reasons for the Supreme Court not to take this case, not the least of which is that the state legislature seems to have empowered the state courts to review redistricting decisions, meaning there would be no violation of the legislature’s “power” even if such power exists.

But four Justices expressed interest in this theory when the Court denied a stay in this case, and former Judge Luttig believes the Court is going to have to resolve this issue sooner rather than later:

Only last month, in a case from North Carolina the Court declined to hear, Moore v. Harper, four Justices (Alito, Thomas, Gorsuch and Kavanaugh) said that the independent state legislature question is of exceptional importance to our national elections, the issue will continue to recur and the Court should decide the issue sooner rather than later before the next presidential election. This case involved congressional redistricting, but the independent state legislature doctrine is as applicable to redistricting as it is to presidential elections.

But there are dangers on the horizon in this case or another one. As I’ve written about Justice Alito’s dissent from a stay in this case:

If J. Kavanaugh ultimately goes along with the Alito reasoning, it will take only one more Justice to agree in order to overturn over two centuries of practice involving interpretation of state election law by state courts. Chief Justice Roberts’ dissent in the Arizona redistricting case from 2015 put him very much in sympathy with Alito’s position on the merits; he might demur for prudential reasons, but who knows? And Justice Amy Coney Barrett is a complete mystery, as she has not weighed in on this. I expect the major action is going to be building a strong record, based upon originalist style scholarship, that the independent state legislature theory, as currently understood, is contrary to the original understanding of the Constitution. There’s a strong case to be made, and it will be one of the first tests to see how serious Justice Barrett takes such historical arguments.

Further, as I wrote in the Harvard Law Review Forum, some of the more extreme forms of the doctrine could facilitate election subversion in 2024 with state legislatures appointing slates of electors that would negate the choices of voters for President. Keep your eye on this.

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Tom Daschle and Trent Lott Advocate for Reforms to the Electoral Count Act of 1887

Former Senate majority leaders Tom Daschle (D) and Trent Lott (R) have published an Op Ed in the WSJ endorsing the need for swift bi-partisan action to reform the Electoral Count Act of 1887 in advance of the next presidential election.

“Nowhere does the Constitution give Congress or the vice president the authority to toss out election results. But last year’s events made clear that in this hyperpolarized time, the Electoral Count Act is convoluted and ambiguous enough to be vulnerable to abuse. A bipartisan group of senators is working to update the law, which was cobbled together in the wake of the disputed 1876 election to prevent—or settle—such disputes. This bipartisan momentum is promising.

One aspect of the act that is ripe for exploitation is the provision allowing a state legislature to decide how to choose electors if the state has somehow “failed to make a choice” on Election Day. Some have incorrectly suggested this vague language means state lawmakers could use any number of trumped-up excuses to override the will of the voters and unilaterally appoint electors of their choosing. To address this, Congress should narrowly define the limited circumstances—like natural disasters or terrorist attacks—under which a state may appoint electors after Election Day.”

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Secretary of State websites routinely list incorrect information about qualifications for federal office

On the heels challenges to federal candidates’ qualifications in places like Tennessee and North Carolina, I took a look at how states describe the qualifications for federal office. The results were quite disheartening. Secretaries of State routinely present erroneous information about the qualifications for federal office.

In its “Federal Qualifications and Responsibilities,” the Washington Secretary of State claims, “Except for the President and Vice President, all federal officials elected in
Washington must be registered voters of the state.” And for U.S. Representative, “Representatives are not required to be registered voters of their district, but must be registered voters of the state.” The Ninth Circuit in Schaefer v. Townsend has made it quite clear that such requirements are additional qualifications inconsistent with U.S. Term Limits, Inc. v. Thornton. Even worse, Washington law expressly provides, “The requirements of voter registration and residence within the geographic area of a district do not apply to candidates for congressional office. Qualifications for the United States congress are specified in the United States Constitution.”

In California, the Secretary of State explains, “Every candidate shall be at least 30 years of age, a U.S. citizen for nine years, and a resident of California on January 3, 2023, the date to be sworn into office if elected.” But the Constitution requires that no person shall be a Senator “who shall not, when elected, be an inhabitant of that state for which he shall be chosen.” “When elected” is not when sworn into office.

And over in Virginia, the Department of Elections alleges, “You have been a citizen of the United States for the past seven years on or before the date of being elected to office, Tuesday, November 8, 2022,” and “You will be twenty-five years of age on or before the date of being elected to office, Tuesday, November 8, 2022.” Neither of these are true. In both cases, Congress has allowed people who are underage or haven’t yet hit the citizenship requirement on Election Day to still serve in Congress, as long as they meet the qualifications by the time they present their credentials. (Joe Biden, for instance, was 29 when elected to the Senate, but turned 30 before he presented his credentials January 3, 1973.)

I haven’t done exhaustive research through these websites. And it’s hardly clear any candidate is relying on this information. But it’s troubling to see basic misstatements of federal qualifications pervading Secretary of State websites. Block quoting the Constitution is preferable to these summaries. It also makes me wonder what other inaccurate information might be lurking around these sites that, say, ordinary voters might rely upon. But that’s a topic for another investigation.

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The Parliamentarians advised Vice President Mike Pence on January 6–not the Parliamentarian

Back in 2021, I traced the language that Vice President Mike Pence used when introducing certificates for the counting of electoral votes on January 6 (into January 7). I quoted the language, as was recorded in the Congressional Record:

Hearing none, this certificate from Alaska, the Parliamentarian has advised me, is the only certificate of vote from that State that purports to be a return from the State and that has annexed to it a certificate from an authority of the State purporting to appoint and ascertain electors.

I recently went back to the Congressional Record from that day, and I found it had a number of corrections made last year, including a series relating to the word “Parliamentarian”:

Hearing none, this certificate from Alaska, the Parliamentarians have advised me, is
the only certificate of vote from that State that purports to be a return from the State and that has annexed to it a certificate from an authority of the State purporting to appoint and ascertain electors.

“Parliamentarian has advised” turned into “Parliamentarians have advised me.”

You can go watch Pence on C-SPAN, and you can hear Pence say “Parliamentarians’ve advised me” (or perhaps “Parliamentarians advise me”). So the original draft was, truly, a typo.

It’s an intriguing if picayune detail. In this special joint session of Congress, both Parliamentarians from the House and the Senate have to be on the same page. The President of the Senate typically, and understandably, would rely on the Parliamentarian of the Senate. But as an institutional matter, it seems hard for one chamber’s Parliamentarian to want one thing and another’s another. It could create material problems in handling objections under the Electoral Count Act if there was leadership friction between the two chambers.

And so, there has been, and continues to be, agreement between the parliamentarians moving through this session. The chambers continue to operate separately even in this joint session–separately, but in harmonious agreement. It’s the kind of thing exceedingly difficult to write into a statute (like the Electoral Count Act or any future amendments), but as a matter of institutional practice remains exceeding important.

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Some Article I questions arising out of the federal court’s opinion in Greene v. Raffensperger

Rick linked to the coverage of the federal district court’s decision in Greene v. Raffensperger, which allows an state administrative hearing over Representative Marjorie Taylor Greene’s qualifications to proceed.

I have been critical of these efforts for states to patrol qualifications or to prematurely adjudicate qualifications. I was critical of the federal district court that blocked a challenge to Madison Cawthorn, because, in my judgment, a federal court has no place in determining the applicability of the 1872 Amnesty Act.

Even if you believe the state has the power to review qualifications (again, which I don’t), the decision in Greene has a number of pretty significant problems. It turns out these short-fuse decisions with light briefing on a preliminary injunction standard involving major, novel questions of constitutional law may have a downside….

Continue reading Some Article I questions arising out of the federal court’s opinion in Greene v. Raffensperger
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“As Earmarks Return to Congress, Lawmakers Rush to Steer Money Home; Democrats and Republicans alike stuffed nearly 5,000 earmarks totaling $9 billion into the $1.5 trillion government spending bill signed by President Biden.”


Often derided as pork and regarded as an unseemly and even corrupt practice on Capitol Hill, earmarks are also a tool of consensus-building in Congress, giving lawmakers across the political spectrum a personal interest in cutting deals to fund the government. Their absence, many lawmakers argued, only made that process more difficult, and their return this year appears to have helped grease the skids once again.

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“GOP Congressman Jeff Fortenberry Found Guilty in Campaign Finance Case”

Deanna Paul in the Wall Street Journal:

A federal jury in Los Angeles on Thursday found Nebraska Rep. Jeff Fortenberry guilty of lying to federal investigators in a bid to conceal illegal campaign contributions he received during a 2016 California fundraiser.

Jurors convicted the Republican congressman on three felony counts after about two hours of deliberations. U.S. District Judge Stanley Blumenfeld set a sentencing date of June 28.

Prosecutors alleged that Mr. Fortenberry learned that the Lebanese-Nigerian billionaire Gilbert Chagoury illegally funneled $30,000 in contributions to his 2016 re-election campaign through straw donors at a Los Angeles fundraiser. But during interviews with federal agents, Mr. Fortenberry repeatedly denied knowledge of Mr. Chagoury’s involvement, prosecutors alleged.

Coverage over at the Omaha World-Herald reminds readers that he still holds his seat in Congress and may continue to seek reelection (unless he chooses to drop his bid).

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White House Report of the Interagency Steering Group on Native American Voting Rights

PDF here. From the White House Fact Sheet:

Since their first days in office, President Biden and Vice President Harris have prioritized strengthening our democracy and taken steps to protect voters from the current efforts to suppress the vote and subvert our electoral process.  The unprecedented nature and scale of the present attacks on voting rights must be met with federal legislation, which is why the President and Vice President have repeatedly called for the Senate to pass the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. The President and Vice President have also forcefully called for changing Senate rules to prevent a minority of Senators from blocking action on this fundamental right from which all other rights flow.  

Congress still has the responsibility to act, but the President is committed to using every tool at his disposal to protect the sacred right to vote.  On March 7, 2021, the 56th anniversary of Bloody Sunday, he signed an Executive Order on Promoting Access to Voting, directing an all-of-government effort to promote information about the voting process and to further the ability of all eligible Americans to participate in our democracy.  That work is ongoing, and agencies will continue to develop ways to deliver non-partisan election information and enable eligible Americans to register and to vote.  

A key provision of the Executive Order on Promoting Access to Voting highlighted the unique trust responsibility that the Federal government has for Tribal Nations and Native communities.  In light of this responsibility, President Biden directed the creation of an Interagency Steering Group on Native American Voting Rights, whose mission is to study the barriers Native voters face in casting their ballot and having those votes counted, and to recommend steps to mitigate or eliminate these barriers.  For far too long, members of Tribal Nations and Native communities have faced unnecessary burdens when they attempt to exercise their sacred right to vote.  Native voters often have to overcome language barriers, a lack of accessibility for voters with disabilities, cultural disrespect and outright hostility, geographically remote residences, and persistent poverty — conditions that have only been exacerbated by the COVID-19 pandemic.  State laws and local practices also present too many Native voters with undue impediments to full and fair exercise of the franchise, including barriers in receiving information about the voting process, discriminatory redistricting, and burdens in voter registration, voter identification, voting in person, and voting by mail.

Early coverage from The Hill and the Associated Press.

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“Michigan lawmakers use maneuver to delay Benson’s new absentee signature rules”

Beth LeBlanc in the Detroit News:

Michigan Republican lawmakers used a rule-making maneuver Tuesday to delay the adoption of rules that would govern signature verification and online applications for absentee ballots. 

The six GOP members of the Joint Committee on Administrative Rules voted in favor of introducing the rules proposed by Democratic Secretary of State Jocelyn Benson in the form of bills in the House and Senate, starting a 270-day clock for the adoption of the bills. 

Under Michigan’s convoluted rule-making process, Benson’s rules cannot take effect until after that 270-day clock expires — meaning the they likely won’t take effect until after the November election and the completion of Benson’s first term.

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