Category Archives: legislation and legislatures

Anderson v. Griswold, the latest Section 3 challenge to Trump in Colorado, appears unlikely to reach the merits

If my blogging on this topic has a sense of déjà vu, my apologies. But we are in an intractable cycle of litigation on Section 3 that has a low likelihood of going anyplace. I think some cases will get there, eventually, later, with careful and targeted suits.

The latest effort, Anderson v. Griswold, has the backing of Citizens for Responsibility and Ethics in Washington, so it attracts different attention than the pro se claims filed so far. But it suffers many of the same defects.

Continue reading Anderson v. Griswold, the latest Section 3 challenge to Trump in Colorado, appears unlikely to reach the merits
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The current waves of Section 3 claims against Donald Trump are likely doomed to fail before they even touch the merits

Ned and Rick H. have done an impressive job collecting some of the commentary over the last couple of weeks of challenges being filed, or anticipated to be filed, about Donald Trump and his eligibility under Section 3 of the Fourteenth Amendment. Before arriving at the merits of any Section 3 argument, however, there are plenty of hurdles challengers must clear. Right now, those challenges are likely doomed to fail for any number of reasons.

It’s worth opening with a brief observation. Challenges to presidential candidates’ eligibility are not new. There were extensive challenges to Barack Obama and Ted Cruz (among others) in administrative tribunals and courts. Most of these challenges never reached the merits stage of whether the candidate was a “natural born citizen” because they failed to clear some other hurdle.

The bulk of challenges right now are doing exactly the same thing and making the same mistakes, or are on pace to do the same.

Continue reading The current waves of Section 3 claims against Donald Trump are likely doomed to fail before they even touch the merits
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Lost in translation: applying Section 3 to twenty-first century presidential elections

In 1868, when the Fourteenth Amendment (including its Section 3) was adopted, presidential elections looked something like this: Political parties gathered together in a convention to nominate candidates for president and vice president. State parties would then choose presidential electors inclined to support these candidates. The state parties would then print tickets in each states that typically listed these candidates and a list of presidential electors who would support those candidates. (Voters could “scratch” electors names if they did not support the entire ticket.) State election officials would tabulate the votes cast for each elector, and the highest vote-getters (ranging from 3 to 33 electors, depending on the state at that time) would be elected. The electors would meet sometime after election day to vote for president and vice president. Congress would then count the votes and declare a winner.

The only place in this process where an adjudication of a candidate’s eligibility might formally occur would be in Congress (which, in 1868, hadn’t yet ever occurred, even though it had been discussed as early as 1800). (It could also occur in the nominating convention, among voters, and among presidential electors.)

Now, of course, since 1868, much has changed, as I chronicled earlier on the power of states to adjudicate qualifications. Today, states print the ballot and develop rules for who appears on the ballot. Most states administer primary elections for delegates to a convention to choose the party’s nominees. States prohibit “scratches” and require voting for all electors as a bloc in all states. States do not even list the electors on the ballot in most states and instead only list the presidential and vice presidential nominees. States often require electors to pledge to support the ticket, going so far in some states as to replace electors who attempt to vote for someone else.

These developments make the application of Section 3 to contemporary presidential elections (setting aside any of the disputes or discussions about Section 3 itself) something of an issue of translation. The state has much more direct involvement and control over elements of the presidential election–the primary, the general, and the electors. I think that’s permissible under Article II and the Twelfth Amendment. But it doesn’t easily translate to other contexts of the administration of presidential elections, including the application of Section 3.

This isn’t to say it can or cannot be done, or that it should or should not be done. It’s only to say that some of the debates of where we are today are anachronistic. The mechanisms we use today were not available in 1868, and those newer mechanisms create some translation complexities in the present age–for which I offer no easy answers, simply this observation.

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“The Moore the Merrier: How Moore v. Harper’s Complete Repudiation of the Independent State Legislature (ISL) Theory is Happy News for the Court, the Country and Commentators”

New Vik Amar piece, forthcoming in the Cato Supreme Court Review. Here is the abstract:

This Essay thoroughly analyzes the 2023 U.S. Supreme Court Moore v. Harper decision, examines how the ruling reflects (laudable) doctrinal movement by the various Justices, and explains why the Court’s reservation of federal judicial power to review state court decisions under the Elections Clause, when state courts go beyond “ordinary judicial review,” does not open the door to expansive federal judicial oversight.

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States have the power to judge the qualifications of presidential candidates and exclude ineligible candidates from the ballot, if they want to use it

Rick H. links to a forthcoming article by Professors Michael Stokes Paulsen and Will Baude on Section 3 of the Fourteenth Amendment, and specifically the application of that section to former president Donald Trump. I am sure the paper will generate significant attention, praise, skepticism, and criticism in the weeks ahead.

But I wanted to focus on one small (but important!) piece, the ballot access issue, which I’ve written about extensively over the years–these are my own views that try to synthesize the Constitution’s text and structure with a long liquidated practices of the states. In short, states do hold the power to judge the qualifications of presidential candidates and may exclude ineligible candidates from the ballot. But they need not do so, and it is up to the legislature in each state to decide whether to implement rules to adjudicate qualifications. (And for a refresher of the path that such litigation might take, I recommend my November 2022 blog post on this topic, which has aged, so far, fairly well. And for a more succinct version of this, check out Ned’s important Washington Post piece that went up today.)

Continue reading States have the power to judge the qualifications of presidential candidates and exclude ineligible candidates from the ballot, if they want to use it
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“Once Rare, Impeachments and Censures Have Become the Norm in Congress”


When the House formally censured Representative Paul Gosar, Republican of Arizona, in November 2021, it was the first time in more than a decade that the punishment had been handed out on the floor. Less than two years elapsed before the next censure — and more attempts are on the way.

No president had been impeached for 130 years before Bill Clinton faced charges by the Republican-controlled House in 1998. Donald J. Trump was then impeached twice — doubling the number of presidential impeachments. Now, many Republicans are working to impeach President Biden.

Proposals to censure lawmakers and impeach members of the Biden administration are piling up quickly in the House in an illustration of how once-solemn acts are becoming almost routine as the two parties seize on these procedures as part of their political combat. And the trend is only likely to intensify given the enmity between Republicans and Democrats over a new federal indictment brought against Mr. Trump for his efforts to overturn the 2020 election, and the G.O.P.’s desire to even the score.

The proliferation of censures and cries for impeachment is troubling to some who see it as a threat to the standing of the institution as well as diminishing the weight such punishments are supposed to carry. Censure is the congressional penalty just below expulsion.

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Brandon Johnson: “Election Aggrandizement”

The following is a guest post from Brandon Johnson, who begins as an Assistant Professor at the University of Nebraska on August 14:

The Supreme Court received praise for two election law decisions issued in the waning weeks of its October 2022 term. In Allen v. Milligan  and Moore v. Harper, Chief Justice Roberts authored majority opinions rejecting arguments that would have further defanged the Voting Rights Act and removed state constitutional constraints on state legislatures’ abilities to regulate federal elections. Advocates, scholars, and commentators expecting far more conservative outcomes reacted positively to these opinions. The New York Times even cited these cases in an article claiming that this term reflected a chastened, less partisan Court. Some scholars, like Rick Hasen, however, cautioned that the majority opinions in both Milligan and Moore, were not the big liberalwins they were portrayed as in the media.

What has gone largely unexplored in all of this debate, however, is the way in which these two cases are consistent with a growing trend in politically charged Roberts’ Court decisions—namely, the Court’s attempts to aggrandize its own power by inserting itself into ever increasing swaths of state and federal policy. In an apparent break with earlier Roberts’ court election law decision—which had taken steps towards limiting the role of the federal courts in reviewing state election laws—both Milligan and Moore arrogate to the Court significant authority to single-handedly reshape state election laws. The discussion below examines this overlooked aspect of the cases.

Continue reading Brandon Johnson: “Election Aggrandizement”
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“The GOP’s lengthy impeachment and censure lists”

The Fix:

So far this year, Republicans have introduced impeachment articles 13 times and censure resolutions — formal reprimands — six times, according to data from Quorum, which tracks legislative action. That combined total of 19 is more than any party has introduced in any year since at least the 1980s, and the year is just half over.

The previous highs for each party came in 2021, when Democrats impeached Trump for the second time and sought to censure eight House Republicans after the Jan. 6, 2021, attack on the U.S. Capitol. Even that year, though, the total numbers for Democrats (14) and Republicans (13) were similar, with Republicans filing 11 attempts to impeach the newly elected Biden and members of his Cabinet.

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Election litigation after Moore v. Harper–lessons from habeas review of state courts

This is the first in a few posts looking at litigation comparable to the issues in Moore v. Harper to see if any lessons can be learned from those areas. I started with the Takings Clause here. I’ll look at habeas next.

Continue reading Election litigation after Moore v. Harper–lessons from habeas review of state courts
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CAP: “Supreme Court’s Decision in Moore v. Harper Is a Win for Democracy, But Some Questions Remain Unanswered”

Michael Sozan at Center for American Progress: “[E]ven though the Supreme Court jettisoned a sweeping version of the [independent state legislature] theory to the dustbin of history, the post-Moore v. Harper path is not without some degree of risk. For reasons addressed below, the Supreme Court majority creates the possibility that partisan state legislatures will seek relief in federal courts that are willing to reverse pro-voter state court decisions governing federal elections.”

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“Inside Kevin McCarthy’s secret promise to expunge Trump’s record”

Politico reports:

After House Speaker Kevin McCarthy suggested on national television last month that Donald Trump may not be the GOP’s best presidential nominee in 2024, the former president was furious — and wanted the California Republican to rectify the slight immediately….

To calm Trump, McCarthy made him a promise, according to a source close to Trump and familiar with the conversation: The House would vote to expunge the two impeachments against the former president. And — as McCarthy would communicate through aides later that same day — they would do so before August recess.

That vow — made reflexively to save his own skin — may have bought McCarthy some time, staving off a public war with the man who almost single-handedly rehabilitated his entire career and ensured he won the gavel in January. But it has also put McCarthy in a bind — and Trump world plans to hold him to his promise.

Update: Speaker McCarthy says he supports expungement but denies there’s a deal.

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“Democrats Try a Novel Tactic to Revive the Equal Rights Amendment”


Democrats in Congress are making a fresh push for the nearly century-old Equal Rights Amendment to be enshrined in the Constitution, rallying around a creative legal theory in a bid to revive an amendment that would explicitly guarantee sex equality as a way to protect reproductive rights in post-Roe America.

Senator Kirsten Gillibrand of New York and Representative Cori Bush of Missouri are set to introduce a joint resolution on Thursday stating that the measure has already been ratified and is enforceable as the 28th Amendment to the Constitution. The resolution states that the national archivist, who is responsible for the certification and publication of constitutional amendments, must immediately do so.

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