Category Archives: legislation and legislatures

“Moore v. Harper, Evasion, and the Ordinary Bounds of Judicial Review”

legislation and legislatures, Supreme Court

David Gans, Brianne Gorod, and Anna Jessurun have posted this draft on SSRN (forthcoming, Boston College Law Review). Here is the abstract:

In Moore v. Harper, the Supreme Court confronted head on for the first time the so-called independent state legislature theory (ISLT), which posits that state legislatures have exclusive authority to enact laws and regulations governing federal elections and that those laws are not subject to state court judicial review pursuant to state constitutions. While the Supreme Court resoundingly rejected the most robust version of ISLT in Moore, commentators have argued that language in that opinion opened a dangerous door to federal supervision of state election law. This Article argues that those claims are wrong. Under Moore, federal court review is only appropriate to prevent state courts from evading federal interests, and as Moore itself made clear, the federally-protected interest under the Elections Clause is the prohibition of state courts “transgress[ing] the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” Looking to the Court’s reasoning in Moore, as well as constitutional history and fundamental principles of state sovereignty, this Article argues that the ordinary bounds of judicial review are exceptionally broad, and there will virtually never be a case in which a state court transgresses those bounds in a way that amounts to an arrogation of power. The upshot, then, is that Moore did more than reject the essential premises of ISLT; it also made it extremely unlikely that any future ISLT claims will succeed.

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Pennsylvania Court, on 4-1 Vote, Holds That Failing to Count Timely But Undated (or Misdated) Mail-In Ballots Violates the State Constitution; Case Likely Headed to State Supreme Court and Potentially SCOTUS on Federal Cases

absentee ballots, legislation and legislatures

This decision could be a very big deal in the case of a very close election. And because this is a ruling that the state constitution trumps a state statute when it comes to voting, there will be an issue as to whether it can apply to federal elections (including for President) under the so-called “indpendent state legislature” theory after the U.S. Supreme Court’s decision in Moore v. Harper.

This case will likely end up at the PA Supreme Court (which just announced some special timing rules for considering election cases), and on the federal issue, potentially at SCOTUS.

Keep an eye on this one in the swingiest of the swing states.

(h/t Adam Bonin)

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

authoritarian threats in US, ballot access, Bush v. Gore reflections, campaign finance, cheap speech, chicanery, Constitutional Right to Vote, election administration, election law and constitutional law, Election Meltdown, election subversion risk, First Amendment theory, legislation and legislatures, political equality, political parties, political polarization, primaries, Real Right to Vote, social media and social protests, Supreme Court, The Voting Wars, voting, Voting Rights Act

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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“McConnell says Congress has the power to vote by proxy”

legislation and legislatures

Politico:

Senate GOP leader Mitch McConnell is defending Congress’ ability to permit voting by “proxy” when members are absent, a practice adopted by House Democrats at the height of the Covid pandemic despite intense opposition from Republicans.

In a brief filed Friday in federal court — authored by former Attorney General William Barr — McConnell says that despite his personal opposition to proxy voting, the House and Senate have total constitutional authority to determine the way they conduct business.

“Despite his fierce opposition to proxy voting, Senator McConnell believes it critical that courts nevertheless respect each house of Congress’ power to ‘determine the rules of its proceedings,’” Barr wrote on McConnell’s behalf.

McConnell’s position puts him at odds with the vast majority of House Republicans, who spent years fighting a losing battle in court to overturn the practice, which was initiated in 2020 by then-Speaker Nancy Pelosi. The House GOP leader at the time, Kevin McCarthy, sued to block the practice but was dealt defeats by two federal courts before the Supreme Court declined to take up the issue.

However, in February, a federal district court judge in Texas ruled that the House’s use of proxy voting violated the Constitution, contending that it requires a majority of members to be physically present to conduct business. The ruling, if upheld by appellate courts, threatens to unravel large and complicated legislative packages adopted with decisive votes cast by absent members.

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“Torrent of senators call for Menendez to resign — and one floats expulsion”

bribery, legislation and legislatures

Politico, on the fallout from Senator Menendez’s conviction yesterday on charges of bribery and acting as a foreign agent:

After decades in public service, the longtime New Jersey Democrat is left with a pending sentence and a doomed reelection bid. Shortly after a jury read off the verdict that he was guilty on all counts, Senate Majority Leader Chuck Schumer ended months of resistance and called on Menendez to resign, joining more than half of Senate Democrats who have already done so. And at least one of Democratic senator [Jacky Rosen (D-Nev.)] is openly considering expulsion.

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“Architects of the Trump Supreme Court See Culmination of Conservative Push”

legislation and legislatures, Supreme Court

Carl Hulse NYT analysis:

Back in 2016, a colleague handed Donald F. McGahn II, then a top legal adviser to the presidential candidate Donald J. Trump, an appeals court opinion that eloquently and powerfully echoed much of what Mr. McGahn saw as the evils of an out-of-control federal bureaucracy.

The opinion from the Denver-based appeals court by the relatively unknown Judge Neil M. Gorsuch suggested it might be time for federal courts to confront the “behemoth” of a longstanding precedent conferring substantial regulatory power on federal officials.

One month later, Mr. McGahn placed Judge Gorsuch on Mr. Trump’s list of potential Supreme Court nominees should he be elected.

Four months later, he was President Trump’s first nominee to the high court.

And over the past week, Justice Gorsuch wrote for the conservative majority on the Supreme Court that made sure the behemoth was slain.

While much of the attention to the conservative-dominated court has been about the sweeping decisions it has made to roll back abortion rights and now greatly expand presidential immunity, that was never the main goal for the architects of the effort to pull the judiciary to the right.

For those who led the drive to place Justice Gorsuch and two other conservatives on the court during the Trump administration, a sweeping series of rulings by the Supreme Court this year that shrank the power of federal agencies was the true victory. Their longtime target, the so-called administrative state, has been beaten back with the overturning of the 40-year-old Chevron doctrine and a flurry of other decisions aimed at reining in federal government reach — just as they envisioned it.

“None of this was an accident,” Mr. McGahn, a partner at Jones Day, said in an interview about the court’s landmark rulings on administrative law — an arcane area but one that was a cornerstone of his campaign to place jurists skeptical of federal power on the bench. “It was a way to corral the runaway bureaucracy to get judges in place who were actually going to read the law as it was written.”…

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“Corporate lobbyists eye new lawsuits after Supreme Court limits federal power”

legislation and legislatures, lobbying, Supreme Court

WaPo:

Mere hours after the Supreme Court sharply curbed the power of federal agencies, conservatives and corporate lobbyists began plotting how to harness the favorable ruling in a redoubled quest to whittle down climate, finance, health, labor and technology regulations in Washington.

The early strategizing underscored the magnitude of the justices’ landmark decision, which rattled the nation’s capital and now appears poised to touch off years of lawsuits that could redefine the U.S. government’s role in modern American life.

The legal bombshell arrived Friday, when the six conservatives on the Supreme Court invalidated a decades-old legal precedent that federal judges should defer to regulatory agencies in cases where the law is ambiguous or Congress fails to specify its intentions. Writing for the majority, Chief Justice John G. Roberts Jr. described the framework as “unworkable,” at one point arguing in his opinion that it “prevents judges from judging.”

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What Replaces Chevron Deference in Administrative Law Statutory Interpretation Cases? Greater Judicial Power

legislation and legislatures, Supreme Court

Here, from the end of the Chief Justice’s opinion in Loper-Bright, is a brief paragraph on what replaces Chevron deference to administrative agency interpretation of ambiguous statutes:

Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

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“America needs a bigger House”

legislation and legislatures

In the Detroit News, I have this op-ed with Michigan state representative Andrew Fink. It begins:

Michigan’s population grew by 2% in the last decade and now has more than 10 million inhabitants. But those Census figures couldn’t stop the state from losing a seat in the House of Representatives, dropping to 13 members.

When states grow in population, they shouldn’t lose influence in Washington. It’s time to expand Congress to represent the interests of a growing national population by amending the Constitution.

Representative Fink has introduced a joint resolution in the Michigan legislature to ratify the last pending amendment of James Madison, which would guarantee a representative in the House for every 50,000 people. (Fink is the first representative to introduce such legislation in any state in recent memory, but perhaps a reader with a longer memory can think of another instance!) That would expand the size of the House from 435 to around 7000. And it can be done without any congressional action.

I’m sure some readers would strongly oppose such a measure or think of it as absurd. We defend reasons to think why much more robust legislative oversight and a House much more closely connected to the people would be a good thing. (Professor Danielle Allen has been among those writing more recently on the topic and in defense of it, such as in this Washington Post piece.)

Congress approved the amendment in 1789, and 11 states ratified it. It would take 27 more for it to become an amendment to the Constitution. But if even one state ratified, we think it might spur serious reflection in Congress about what the appropriate size of the House ought to be–perhaps less than 7000, but something that would spur Congress to react.

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“Investors, worried they can’t beat lawmakers in stock market, copy them instead”

conflict of interest laws, legislation and legislatures

WaPo:

Members of Congress hear a lot of secrets: classified briefings, confidential previews of pending legislation and the private opinions of constituents, regulators, corporate executives and world leaders.

Watchdog groups have long believed that somelawmakers use that information to make money in the stock market. Now a loose alliance of traders, analysts and advocates is trying to let Americans mimic the trades elected officials make, offering tongue-in-cheek financial products — including one named for former House speaker Nancy Pelosi (D-Calif.) and another that refers to Sen. Ted Cruz (R-Tex.) — that track purchases and sales after lawmakers disclose them.

Collectively, these investment vehicles haveattracted hundreds of millions of dollars.At times, congressional investigatorshave used them to keep tabs on suspicious trading activity, according to people familiar with these investigations who spoke on the condition of anonymity because they are not authorized to speak to the media.

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“Henry Cuellar Indicted Over Bribery Scheme”

bribery, chicanery, legislation and legislatures

Missed this story (and the Illinois one Derek flags) while traveling:

Representative Henry Cuellar, a Texas Democrat in a crucial swing district, and his wife were charged with participating in a yearslong $600,000 bribery scheme involving Azerbaijan and a Mexican bank, according to a federal indictment unsealed in Houston on Friday.

The accusations against Mr. Cuellar, 68, and his wife Imelda, 67, center on allegations of bribery and money laundering in connection with their efforts on behalf of an oil and gas company owned by Azerbaijan’s leaders as well as an unnamed bank based in Mexico City, according to the 54-page complaint.

Mr. Cuellar, a Laredo native first elected in 2004, is also accused of acting as an agent of a foreign entity while a U.S. government official — by delivering a speech favoring Azerbaijan in Congress and inserting provisions into aid bills to benefit those who were paying bribes to his family.

I wonder how a Speech or Debate Clause defense might figure into claims based on delivering a speech in Congress.

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Federal Court Rejects on Standing Grounds Michigan Legislators Suit Against Voting Initiatives Premised on Embrace of Rejected ISLT Theory

legislation and legislatures

You can read the decision at this link.

Here was my initial coverage:

Michigan GOP Lawmakers Appear to Rely on Rejected Version of Independent State Legislature Theory to Attack Recent Voting Laws Passed by Initiative

RICK HASEN

I haven’t seen the complaint, from from the description of the facts and lawsuit here, this lawsuit should not have much chance of success.

If anyone has the complaint, pass it along and I will post here and provide additional analysis.

UPDATE: Here is is the complaint, via Democracy Docket. More to come.

SECOND UPDATE: This complaint is quite unimpressive, not even mentioning controlling contrary authority (the Arizona Independent Redistricting Commission Supreme Court case), or the recent and inconsistent Moore v. Harper case.

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“In Electoral Disputes, State Justices Are Less Reliable GOP Allies than the U.S. Supreme Court—That’s the ‘Problem’ the Independent State Legislature Claim Hopes to Solve”

legislation and legislatures, political polarization, Supreme Court

Rebecca L. Brown, Lee Epstein, and Michael J. Nelson have this new article in the Annals of the American Academy of Political and Social Science. Here is the abstract:

Scholars have identified serious drawbacks to the independent state legislature (ISL) claim, which precludes state-court review of election laws, thus preventing state guarantees like “free and fair elections” from being enforced. Considering its flaws, we ask why ISL would be pursued so fervently and why the Supreme Court, in Moore v. Harper, adopted a version of it. Examining data that compare election-law outcomes in federal and state supreme courts, we found that state supreme court justices, even if Republican, are not reliable supporters of the GOP electoral agenda. The Roberts court, by contrast, has voted in the GOP-supported direction in most election-law cases it has decided. This, we argue, is why ISL is promoted so vigorously: it takes electoral disputes—such as who can vote, what the rules for counting are, and such—out of the hands of state courts and places them squarely into the hands of the Supreme Court, a reliable partisan ally.

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“The ‘Bounds’ of Moore: Pluralism and State Judicial Review”

legislation and legislatures, Supreme Court

Leah Litman and Kate Shaw have written this essay for the Yale Law Journal Forum. Here is the abstract:

In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates a kind of federal-court review of state officers’ interpretation of state election laws that is not rooted in history or tradition, given the pluralist interpretive traditions that existed in the states both before and after the drafting and ratification of the original Constitution. It is also fatally inconsistent with basic principles of both federalism and democracy.

Can’t wait to read this!

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