Category Archives: legislation and legislatures

“Pa. lawmakers file lawsuit against Shapiro, Biden over election-related orders”

Penn Live:

A group of conservative Pennsylvania lawmakers have filed suit against President Joe Biden and Gov. Josh Shapiro over their use of executive authority in election matters.

In the 33-page complaint filed on Thursday in U.S. Middle District Court, the Pennsylvania Freedom Caucus asks the court to halt activities authorized through executive orders that expand voter registration and outreach.

They claim the orders are unconstitutional in that they removed guardrails legislators put in place to ensure fair elections and deprive legislators of their civil rights..

In the lawsuit, lawmakers maintain the U.S. Constitution assigns state legislators the right to determine the manner of elections.

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Clopton and Shaw on litigation and electoral time

New draft from Zachary Clopton (Northwestern) and Kate Shaw (Cardozo en route to Penn), forthcoming in the Wisconsin Law Review, is here, entitled Public Law Litigation and Electoral Time. Here’s the abstract:

Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics — electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants — measured by the fixed terms of state and federal executive officials — may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts — measured by the fixed terms of state judges — creates openings for strategic behavior among litigants (both public and private), such as when they engage in temporal forum shopping between the court before and after judicial elections. Third, state judges may pursue their preferences in light of their own electoral time, such as when they choose to pursue midnight adjudication. This Essay suggests reasons to be concerned with these time-motivated behaviors, especially when they seek to entrench policies and to counteract the results of democratic elections. How courts, policymakers, and the public will respond to these concerns, only time will tell.

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“‘Thank God they walked out’: Oregon’s partisan divide highlights heightened animosity in statehouses”

Politico:

Ten Oregon Republican senators may face the end of their legislative careers for a six-week legislative walkout aimed at thwarting what they see as a radical Democratic agenda on guns, abortion and transgender health care.

The lawmakers are banned from running for reelection for accumulating at least 10 unexcused absences during this year’s legislative session.

Their imminent banishment — pending the outcome of a pair of legal battles, with key court hearings this week — is due to a 2022 constitutional referendum overwhelmingly backed by voters.

I covered the dispute in Oregon earlier this year here.

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State power and the Term Limits v. Thornton problem in Anderson v. Griswold

The bulk of the analysis in Anderson v. Griswold, which held that Donald Trump can appear on the primary ballot in Colorado, has been a matter I’ve been puzzling this weekend. Most of the opinion is not essential to the holding–that is, most of the legal analysis in the opinion concludes that Trump engaged in insurrection (but nevertheless may appear on the ballot). (Rick H. rightly notes earlier that it’s a reason it has “political implications” as the legal implications remain to be seen.)

There are ordinary reasons (e.g., trial courts include alternative or “non-essential” holdings in judicial cases to allow for a better appellate review that might avoid further litigation in the event of a reversal) and cynical reasons (e.g., trial courts want to reach a particular factual conclusion but not issue a particular remedy in a case and choose to discuss both) for such dicta. I don’t want to psychoanalyze in this post.

Instead, I think a reason I’ve been puzzled, on reflection, is because the court made a mistake in how it approached the jurisdictional component: does state law even authorize this kind of judicial review? Viewed through a lens of cases like U.S. Term Limits, Inc. v. Thornton, I think the error in the court’s framing becomes evident.

Continue reading State power and the Term Limits v. Thornton problem in Anderson v. Griswold
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“The hidden biases at play in the U.S. Senate; People of color get significantly less representation than White voters. And that’s not the only way the Senate is skewed.”

Deep dive at WaPo:

The result of the country’s evolution has been a Senate that suffers from three fundamental imbalances, according to a Washington Post data analysis of population growth, demographic changes and shifts in voting patterns.

First, the disparities in power among voters in different states have widened as states have grown unevenly. Second, because of demographic distribution, White voters now have substantially greater influence than voters of color. And finally, in recent decades, Republican senators have maintained majority control even when they represent a minority of Americans. That’s because more Republicans than Democrats are elected in the least populous states.

Though not the sole reason, these imbalances have contributed to the Senate’s inability to enact legislation that enjoys popular support, from voting rights to gun safety laws. Proposals with widespread support among voters of color have been particularly stymied. The Senate’s distortions are also a factor in perceptions, especially among people on the political left, that the Republican Party and its constituencies enjoy outsize power over essential democratic processes, including the confirmation of Supreme Court justices.

As the country continues to gain population and become more diverse, none of these phenomena appear to be going away.

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“Democrats Plan to Spend Millions to Weaken Republican Supermajorities”

NYT:

Democrats are planning to spend millions of dollars next year on just a few state legislative elections in Kansas, North Carolina, Kentucky and Wisconsin — states where they have little to no chance of winning control of a chamber.

Yet what might appear to be an aimless move is decidedly strategic: Democrats are pushing to break up Republican supermajorities in states with Democratic governors, effectively battling to win back the veto pen district by district. Such supermajorities result when a single political party has enough votes in both chambers of a legislature to override a governor’s veto, often, though not always, by controlling two-thirds of the chamber.

The extraordinary political dissonance of having a governor of one party and a supermajority of an opposing party in the legislature is one of the starkest effects of gerrymandering, revealing how parties cling to evaporating power.

As gerrymanders built by both parties for decades have tipped the scales to favor the party of the map-drawers, legislative chambers have proved resistant to shifting political winds at the state level. At times, those gerrymanders have locked in minority rule in legislatures while statewide offices, like the governor’s, adhere to the desires of a simple majority of voters.

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“The Supreme Court Summons the Ghosts of Bush v. Gore: How Moore v. Harper Haunts State and Federal Constitutional Interpretation of Election Laws”

Scott Kafker and Simon Jacobs have posted this draft on SSRN (forthcoming, Wake Forest Law Review). Here is the abstract:

There is a dangerous lack of clarity in the Supreme Court’s recent decision in Moore v. Harper, which held that state supreme courts’ interpretations of their state election laws are subject to review and reversal in federal court when “they transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislature to regulate federal elections.” By resurrecting the reasoning of Bush v. Gore, with particular emphasis on the concurrence by Chief Justice Rehnquist, the Supreme Court risks unleashing the same chaotic reaction to the judiciary caused by the original decision. But this is not necessary. In our view, the original understanding of the Elections Clause provides for a very limited form of additional federal oversight. The provision does not authorize the Supreme Court to substitute its judgment for state courts on the meaning of state election statutes or state constitutions, as Chief Justice Rehnquist did in Bush v. Gore. Nor does it authorize an open-ended inquiry into what it means to transgress the ordinary bounds of judicial review, as there is no consensus on the Supreme Court or other courts on what that means. It also does not prevent state courts from providing greater protection of voting rights than that provided by state legislatures or the federal Constitution when such rights are granted by the state constitution. Nor does it impose a particular interpretive methodology on state courts in interpreting their constitutions or the federal constitutional conception of separation of powers or stare decisis. It only prevents state courts from performing the function of state legislatures, as the state legislatures are expressly responsible under the federal Constitution for prescribing the time, place, and manner of elections, subject to state constitutional review. Justice Souter’s dissent in Bush v. Gore encapsulates the overreach at issue. State courts may not create new election laws untethered to the legislative act or state constitutional provision in question. Such fundamental rewriting of the election laws, and usurpation of the legislative function is forbidden.

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Minnesota Supreme Court seeks supplemental briefing in light of its 2012 order on “birther” challenge to Barack Obama’s candidacy

It is a challenge to find all of the various presidential eligibility challenges over the years. My scholarship cites some, but it’s hardly exhaustive. In 2016, I had an effort to keep a running list. And as I emphasized back in November 2022, the piecemeal and state-specific nature of the litigation makes it a challenge from state to state.

The Minnesota Supreme Court has ordered supplemental briefing after finding an (apparently unpublished) order from 2012 in a “birther”-style challenge to Barack Obama’s candidacy. That order concluded (1) laches applied, (2) presidential candidates are exempt from certifying their eligibility under state law, and (3) “under federal law it is Congress that decides challenges to the qualifications of an individual to serve as president. See 3 U.S.C. § 15.” (1) was adequate to decide the case, so it’s not clear why the court continued to other issues; (2) may well be right, but hardly address the separate court-initiated challenges to qualifications that may occur; and (3), as I’ve argued elsewhere, is wrong insofar as it purports to claim that Congress has exclusive domain to decide these matters, and would require some claim about the power of Congress to enact the Electoral Count Act to strip states of certain kinds of power.

We’ll see what the briefing yields. (Disclosure: I filed an amicus brief in support of neither party in the case, and I did urge some caution in Part IV of the brief in how state law applies to these challenges.)

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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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