Category Archives: legislation and legislatures

Richard Bernstein: “The U.S. Supreme Court Should Vacate and Remand in Moore v. Harper”

The following is a guest post from Richard Bernstein, who wrote this amicus brief in Moore v. Harper but who expresses his own views here:

Although I wrote and joined an amici brief supporting affirmance in Moore v. Harper, recent developments counsel that the best course for the U.S Supreme Court now is to vacate and remand the North Carolina Supreme Court’s February 2022 opinion and order—called Harper I.  A Supreme Court vacatur would enable the current North Carolina Supreme Court to address two points of North Carolina law that became unclear after the oral argument in Moore v. Harper on December 7, 2022.  The first is whether Harper I remains a correct statement of North Carolina law in light of the current North Carolina Supreme Court’s decision to consider overruling Harper I as part of its rehearing of Harper II.  The second is whether, if the North Carolina Supreme Court overrules Harper I, it will also lift Harper I’s prospective injunction against use of the North Carolina legislature’s 2021 map for the 2024 and subsequent congressional elections.

            Let’s begin where everyone agrees:  The North Carolina Supreme Court currently has jurisdiction in its pending rehearing of Harper II to overrule Harper I on state law grounds.  Petitioners in Moore v. Harper nevertheless contend that, because the North Carolina Supreme Court has a 15-day time limit on seeking rehearing, it is too late for the North Carolina Supreme Court to lift Harper I’s prospective injunction and thereby reinstate the 2021 legislature’s map for future elections.  Apparently, in Petitioners’ view, all the North Carolina Supreme Court’s rehearing of Harper II could do by overruling Harper I would be to enable the current North Carolina legislature to enact a new statute with a map identical to the 2021 map, or some other map, that would not be subject to judicial review based on partisan gerrymandering.

            That limit on judicial relief is far from obvious.  Indeed, if North Carolina law is the same as federal law, Petitioners’ limit would be wrong pursuant to Agostini v. Felton, 521 U.S. 203 (1997).  In Agostini, the Supreme Court simultaneously overruled a 12-year-old case called Aguilar v. Fenton, 473 U.S. 402 (1985), and lifted prospectively a permanent injunction issued previously in the Aguilar case itself.  In dissent, Justice Ginsburg, joined by three other Justices, argued that lifting the injunction contravened a Supreme Court rule setting a 25-day time limit for a rehearing petition.  See Agostini, 521 U.S. at 255.  The Agostini majority, however, relying on the principles codified in Federal Rule of Civil Procedure 60(b)(5), ruled that a federal court had no discretion other than to lift the prospective application of the earlier injunction in light of the overruling of AguilarAgostini held that a prospective injunction is inequitable and “cannot be permitted to stand if we find it rests upon a legal principle that can no longer be sustained.”  521 U.S. at 238; see id. at 215.

            Although North Carolina Rule of Civil Procedure 60(b)(5) is identical to its federal analog, perhaps the current North Carolina Supreme Court would adopt a position akin to the Agostini dissenters as North Carolina law and leave the Harper I injunction in place prospectively even if Harper I is overruled on a state law ground.  But that state law issue is for the state supreme court to decide.

            Because only the North Carolina Supreme Court can resolve unclear issues of state law, the Supreme Court’s discretionary and sua sponte decision to vacate and remand in Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000), supports a similar approach in Moore v. Harper.  In Palm Beach, the Supreme Court declined to address “at this time” any version of what we now call the independent state legislature theory because two antecedent points of Florida law were “unclear.”  531 U.S. at 78.  It was only after the Florida Supreme Court’s clarifying decision on remand that the Supreme Court’s majority opinion in Bush v. Gore, 531 U.S. 98 (2000) (per curiam), could honestly say that the Supreme Court was “forced to confront” the federal constitutional issues raised by the recount in the 2000 presidential election in Florida.  Id. at 111.

            Contrast what the Supreme Court faces now if it does not vacate.  Suppose that the North Carolina Supreme Court issues its rehearing decision before the Supreme Court issues its decision in Moore v. Harper.  And suppose the North Carolina Supreme Court overrules Harper I, but does not resolve whether Harper I’s injunction against the 2021 legislature’s map nonetheless remains in place.  It would look like an advisory opinion—or what lay people call a power grab—for the U.S. Supreme Court subsequently to issue a major constitutional decision that either reverses (or affirms) a state court decision that the state court has already overruled.

Alternatively, the Supreme Court could race to get its decision in Moore v. Harper out the door before the North Carolina Supreme Court’s rehearing decision.  Such haste would be just as unseemly.  Just shy of 230 years ago, the Justices of the U.S. Supreme Court explained to President George Washington that a foundation of the rule against advisory opinions is that the Constitution makes the Supreme Court “a court in the last Resort.”  Letter to George Washington from Supreme Court Justices, Aug. 8, 1793.  The Supreme Court should vacate and remand in Moore v. Harper so that it will address any federal constitutional issue in that case only as “a court in the last Resort.”

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“Confusion Shrouds High Court Election Case With 2024 on Horizon”

Kimberly Strawbridge Robinson for Bloomberg Law:

The US Supreme Court’s surprise decision to seek additional briefing in a North Carolina voting case could push an open question on the role of state officials in setting federal election rules into 2024.

The justices, who have already heard the case, gave the parties until March 20 to submit additional briefs. They want to know whether action in February by North Carolina’s state supreme court means that the lower court intends to snatch it back and possibly rule anew.

The possibility that the case is delayed or dropped or if the North Carolina court takes things in another direction means there might not be a resolution before next year’s balloting.

While the big question centers on Republican efforts to get more power for state legislatures over elections in congressional races, critics of the litigation say a change in law by the Supreme Court also could extend to the presidential race. This heightens the urgency for clarity from the high court even more due to the tense climate nationally over elections for federal office, election law experts say.

It would be “good for the country” if the justices clarify the issue ahead of the 2024 vote, said Ohio State law professor Edward Foley. “Everyone needs to know the rules of the road.”

UCLA law professor Rick Hasen said in a “Cases and Controversies” podcast that Moore v. Harper was “probably the most complicated election case I’ve had to explain.”

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“Republicans Use Arcane Political Tactic to Thwart Democrats”


Republicans have settled on their procedural weapon of choice for this Congress — and they have it trained squarely on Democrats anxious about their 2024 prospects.

Twice in the past week, Republicans scored wins and divided Democrats by employing an arcane maneuver known as a resolution of disapproval to take aim at policies that they oppose and see as political vulnerabilities for Democrats, using the measures to amplify their message.

The biggest victory came on Thursday, when President Biden told Senate Democrats that he would sign a Republican-led resolution blocking the District of Columbia’s new criminal code if it reached his desk. It was a reversal from his earlier opposition and a frank acknowledgment that Republicans had gotten the better of Democrats on the hot-button topic of violent crime.

It is somewhat unusual for the president to have to confront legislation he opposes when his party controls at least part of the Congress — in this case the Senate — since his allies on Capitol Hill can usually bottle up legislation they don’t like and spare him from a veto or a tough decision.

But the beauty of a resolution of disapproval is that it has special status in the Senate. It can’t be kept off the floor by the majority leader and is not subject to the filibuster, providing a blunt political instrument for lawmakers if they can assemble a simple majority. That is because of the Congressional Review Act, enacted in 1996 after Republicans took power on Capitol Hill, which created the process that allows Congress to upend federal rules.

With little power to set the Senate agenda, Republicans regard the tactic as a handy way to score legislative victories and force Democrats to debate subjects they would rather avoid.

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“The House was supposed to grow with population. It didn’t. Let’s fix that.”

Danielle Allen WaPo opinion piece:

What if we increased the size of the House?

Given that most of us are pretty frustrated with Congress, this might sound crazy. But growing the House of Representatives is the key to unlocking our present paralysis and leaning into some serious democracy renovation.

I am using my Post column this year to explore why we are pulling apart as a people and how we can change that dynamic and come together. In January, I wrote about our desperate need to renovate our democracy. It has endured for more than two centuries, serving us well in some ways and very imperfectly in others. We are still completing a critical transition to broad power-sharing across communities and among citizens of all backgrounds. Our institutions weren’t originally built for this — and we have been cobbling on additions and extensions decade after decade.

Now, the pace of change has accelerated, and all of our deferred maintenance is catching up with us. We need a plan for functional institutions of self-government in 21st-century conditions. We all know it, but we’re stuck. There’s so much work to do. Where to begin?

I propose we start with the first branch of government — the branch of the federal government that was designed by the framers to be closest to we the people.

As originally conceived, the House was supposed to grow with every decennial census. James Madison even included in the Bill of Rights an amendment laying out a formula forcing the House to grow from 65 to 200 members, then allowing it to expand beyond that. (His proposal actually stands as an open-ended amendment still available for state ratification, but the math it uses wouldn’t work for the country’s 21st-century scale.)

George Washington spoke just once at the Constitutional Convention — and on its final day — to endorse an amendment lowering the ratio of constituents to members to 30,000.The expectation was that good, responsive representation required allowing representatives to meaningfully know their constituents, constituents to know and reach their representatives, and Congress to get its business done.

Today, House members represent roughly 762,000 people each. That number is on track to reach 1 million by mid-century.

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“Republicans have won the Senate half the time since 2000 despite winning fewer votes than Democrats”

Stephen Wolf analysis for Daily Kos:

Even though Democrats retained the Senate—and expanded their majority—in 2022, the results nonetheless marked the continuation of an unwelcome trend: Our new data shows that Senate Republicans last won more votes or represented more Americans than Democrats in 1998, but the GOP has controlled the upper chamber fully half the time since then nonetheless….

Ever since 2000, Republicans have repeatedly won control of the Senate despite losing the popular vote; at the same time, they’ve also represented states with a minority of the U.S. population. This was the case from 2000 through 2006 and again from 2014 through 2020, covering six of the last 12 federal elections. (To determine the Senate popular vote in a given year, we combined the most recent results for all 100 seats; you can see our data below and find a detailed accounting of our methodology here.)

That asymmetry has only grown more extreme. As illustrated by the graph below, the 51 members of the Democratic caucus today represent 58% of the country’s population compared to only 42% for the chamber’s 49 Republicans; that’s an increase from two years ago, when the population gap was already a considerable 57-43. That means Democrats continue to have tens of millions more constituents while controlling just two more seats, and they’ve likewise won millions more votes than Republicans across the three most recent election cycles that have elected the current members of the Senate….

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“Pence to fight special counsel subpoena on Trump’s 2020 election denial”


Mike Pence is preparing to resist a grand jury subpoena for testimony about former President Donald Trump’s push to overturn the 2020 election, according to two people familiar with the former vice president’s thinking.

Pence’s decision to challenge Special Counsel Jack Smith’s request has little to do with executive privilege, the people said. Rather, Pence is set to argue that his former role as president of the Senate — therefore a member of the legislative branch — shields him from certain Justice Department demands.

Pence allies say he is covered by the constitutional provision that protects congressional officials from legal proceedings related to their work — language known as the “speech or debate” clause. The clause, Pence allies say, legally binds federal prosecutors from compelling Pence to testify about the central components of Smith’s investigation. If Pence testifies, they say, it could jeopardize the separation of powers that the Constitution seeks to safeguard.

“He thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature,” said one of the two people familiar with Pence’s thinking, who spoke on condition of anonymity to discuss his legal strategy. “He feels it really goes to the heart of some separation of powers issues. He feels duty-bound to maintain that protection, even if it means litigating it.”

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North Carolina Supreme Court Schedules March 14 Oral Argument in Rehearing in Harper, the Partisan Gerrymandering Case that Could Moot Moore v. Harper (the Independent State Legislature Case) at SCOTUS

Here is the order. That gives plenty of time for the North Carolina Supreme Court to do what I expect, which is to reverse the earlier holding that partisan gerrymandering violates the North Carolina constitution, before the Supreme Court would rule in the related case, Moore v. Harper.

A ruling eliminating partisan gerrymandering under the North Carolina constitution would almost certainly moot the pending Moore v. Harper case at the Supreme Court, raising the question of the so-called “independent state legislature theory.” I explained why in this Slate piece and in this Bloomberg Law podcast.

Meanwhile, no party at the Supreme Court has yet notified the Court about the rehearing grant, at least not according to what is reflected in the public docket.

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“Sweep in 3 Special Elections Gives Democrats Control of Pennsylvania House”


Democrats swept three special elections in solidly blue House districts in western Pennsylvania on Tuesday, according to The Associated Press, putting the party in the majority by a single seat and breaking a Republican legislative monopoly that has recently focused on election restrictions and anti-abortion bills.

All three races were in Allegheny County, which includes Pittsburgh and is the state’s No. 2 county by population, after Philadelphia.

Control of the Pennsylvania House had been shrouded by uncertainty since the midterms in November, grinding legislative business to a halt while the parties clashed over ground rules and the timing of the special elections.

Democrats had appeared to flip the chamber in the fall for the first time in a dozen years, but one lawmaker’s death and the election of two others to higher offices delayed the final outcome.

The party’s majority — 102 seats to 101 seats — brings clarity to the last unresolved legislative races in a fiercely contested state.

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A practical reason for the North Carolina Supreme Court to expedite rehearing of its partisan gerrymandering decision

I appreciate Rick H.’s perspective on the issue of potential mootness in Moore v. Harper. Indeed, I think if the North Carolina Supreme Court reverses its partisan gerrymandering decision, it’s hard to think that even a malleable doctrine like “capable of repetition yet evading review” (which has historically been left to factual recurrence for the specific parties in the case) would allow the Court to rehear the case.

But I wonder about this claim: “Likely the calculation was that the legal arguments raised by the legislators in Moore are so weak that it would not lead to a decision guaranteeing the kind of legislative supremacy that they seek. Maybe kill this case, the argument could be, and hope that a better version of the arguments could be made next time.”

I think there’s a different, and very practical, reason for the litigants here, and the North Carolina Supreme Court, to move quickly.

The issue in Moore for the United States Supreme Court is only about the congressional maps. But rehearing in the state courts allows for review of both the congressional maps and the state legislative maps. And there are many reasons, I think, why the current North Carolina legislature would want to move quickly to address both sets–including, importantly, its own maps.

On December 16, 2022, the North Carolina Supreme Court approved the extension of the remedial map through the next decennial census, but reversed on another map and remanded to the trial court for modification. But before that case could be sent back, the legislature sought rehearing before the state supreme court.

The failure to seek rehearing would have allowed the case to drop back to the district court, a remedial map (that the legislature didn’t prefer) to be put in place for the 2024 election, then a need to get back to the state supreme court for review of that decision, with hope to resolve these issues ahead of any deadlines to pass constitutional and statutory muster for petitioning requirements, along with the pragmatics of identifying which districts the members of Congress and of the state legislators are running in.

One could wait for the decision in the congressional maps case to then resolve the rest of the issues. But North Carolina has some of the earliest legislative deadlines in the country. Its primary elections will be in March 2024. Its filing deadline is in December 2023. Its petitioning in lieu of a filing fee requirements, which must be met by December 2023, have to take place in the “election area” where one is seeking office.

This is a long way of saying, I think the decision to seek rehearing may well be less about the specifics of Moore v. Harper and any likelihood of success, and more the fact that there’s a separate issue of state legislative elections that the legislature wants to resolve. It doesn’t want to wait around for the United States Supreme Court to wait on one part of the issue and potentially put its preferred maps for 2024 at risk.

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My New one @Slate: “Unfortunately, the Biggest Election Case of the Supreme Court Term Could Be Moot”

I have written this piece for Slate. It begins:

Will a power grab by the new Republican majority on North Carolina’s Supreme Court—ostensibly to reverse a power grab by the earlier Democratic majority on North Carolina’s Supreme Court—deprive conservatives on the United States Supreme Court of a power grab over U.S. elections? Or will it just delay an urgent election ruling to a much worse time—when it could decide the outcome of a major election?

The Supreme Court’s potential blockbuster election decision in Moore v. Harper, now expected by late June, could soon be rendered moot by an order that the North Carolina Supreme Court issued on Friday to rehear the underlying case. If Republican state justices in North Carolina moot Moore, it might simply delay an outcome on an issue that should be resolved sooner rather than later….

The good government group Common Cause and others sued over the new map, claiming it was a blatant partisan gerrymander that violated the Equal Protection Clause of the U.S. Constitution. In 2019’s Rucho v. Common Cause case, the Supreme Court in a 5-4 decision held that federal courts lacked judicially manageable standards to decide when taking partisanship into account might go so far. Chief Justice John Roberts, for the majority, said there were other ways to deal with the problem, like state courts applying state constitutional standards, Congress passing a statute governing congressional redistricting, or voter initiatives.

Undaunted, Common Cause went to the North Carolina state courts, arguing that partisan gerrymandering violates a part of the state constitution guaranteeing free and equal elections. The group was successful, with a lower court striking down the gerrymandered maps of the previous decade and forcing the 2020 election be run with new maps. It then secured a ruling from the North Carolina Supreme Court that the new congressional districts drawn for this decade violated the state constitution as well.

The politics of the state ruling was not lost on anyone who follows North Carolina politics. The North Carolina state constitution gives only its general assembly the right to draw congressional districts; the state’s Democratic governor, Roy Cooper, has no say. The state Supreme Court had a Democratic majority when it ruled that the redistricting violated the state Constitution, and Republicans attacked the ruling as a power grab. It’s worth noting that those same Republicans didn’t complain when similar state court rulings led to opposite outcomes, like when New York’s courts struck down its Democratic gerrymander of congressional districts as a partisan gerrymander under the New York Constitution, leading to a much more favorable map for Republicans in that state….

This past Friday, on a 5-2 party line vote, the North Carolina Supreme Court agreed to hear the case and rejected Common Cause’s petition to dismiss the rehearing request. Justice Anita Earls, an elected Democrat and former election law litigator, dissented: “Not only does today’s display of raw partisanship call into question the impartiality of the courts, but it erodes the notion that the judicial branch has the institutional capacity to be a principled check on legislation that violates constitutional and human rights.” She called the decision “an affront to the jurisprudence of this State and to the citizens it has sworn an oath to serve ‘impartially,’ ‘without favoritism to anyone or to the State.’”

The decision to seek rehearing is a curious one, and indicates some doubts on the part of Republicans that the U.S. Supreme Court’s decision in Moore would be a favorable one. After all, if you think there is a chance of getting a good ruling from the U.S. Supreme Court, why moot your case? And if you lose in the Supreme Court, you could always go back to the state supreme court in a new case to get the state court to reverse course.

Likely the calculation was that the legal arguments raised by the legislators in Moore are so weak that it would not lead to a decision guaranteeing the kind of legislative supremacy that they seek. Maybe kill this case, the argument could be, and hope that a better version of the arguments could be made next time.

Common Cause too may have reasons to argue for the case’s mootness. After all, a bad decision in North Carolina rejecting a partisan gerrymandering claim under the state constitution would only affect that state. In contrast, an embrace of the independent state legislature doctrine by the U.S. Supreme Court would have negative effects around the country.

But there is a cost here of throwing out the Moore case at this stage, and it is not just all of the lost effort on the part of lawyers, justices, and clerks. The ISL theory is not going away. It has come up in numerous cases over the last few years, and it is going to keep arising until the Supreme Court resolves it. Given the weaknesses of the legislators’ arguments in Moore, it seems like a pretty good case in which to get some clarity.

Moreover, it is far better for this ISL theory to be resolved when it is not in the context of a disputed presidential election. It is far worse when the Supreme Court’s involvement in election cases is outcome determinative, casting new doubts on the legitimacy on the courts and the electoral process. In this case, there is no individual outcome being threatened, but rather a group of future maps. And better to have rules set and understood in advance, then figured out after the fact….

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“As G.O.P. Rails Against Federal Spending, Its Appetite for Earmarks Grows”


Even as Republicans, newly empowered after taking control of the House, call for deep government spending cuts and accuse Democrats of profligacy with taxpayer dollars, a growing number of them have joined Democrats in helping themselves to larger amounts of cash for their states and districts in the form of earmarks — now rebranded as “community project funding” — that allow lawmakers to direct federal money to pet projects.

A review by The New York Times of the nearly $16 billion in earmarks included in the $1.7 trillion spending law enacted in December — more than 7,200 projects in all — revealed that earmarks requested by members of both parties skyrocketed over the last year. And while Democrats secured a greater amount of spending on pet projects overall than Republicans did, the increase in G.O.P. earmarks since last spring was larger.

Compared to spending legislation in March, the number of earmarks in the December bill rose by more than 2,200, costing $7 billion more, with Democrats outspending Republicans by $2.3 billion. Republican members secured 85 percent more in spending for pet projects in the latest funding package than in previous one, whereas Democrats’ increase was 70 percent.

The totals still pale in comparison to the heyday of earmarking — lawmakers claimed $32 billion worth in the 2010 fiscal year, before the prohibition went into effect — but the uptick reflects a bipartisan return in enthusiasm for the practice.

Republican lawmakers claimed eight of the 10 most expensive earmarks, with Representative Brian Mast of Florida, securing the largest: $447 million for an ecosystem restoration project in South Florida.

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Breaking: North Carolina Supreme Court Grants Rehearing in Case Striking Down Congressional Districts as a Partisan Gerrymander, Potentially Mooting U.S. Supreme Court’s Independent State Legislature Case, Moore v. Harper

On a 5-2 vote along party lines, the North Carolina Supreme Court has granted rehearing to reconsider its decision striking the state’s congressional districts as unconstitutional partisan gerrymanders under the state constitution. It is also considering the state districts as well as a separate voter id case; these were each decided just before the partisan majority on the Supreme Court changed. Justice Earl in her dissents calls out the court for granting the unusual rehearing and rejecting Common Cause’s motion to dismiss; the says that this is going to further politicize the judiciary and undermine the legitimacy of the courts.

The court put the congressional districting briefing on a very quick time frame, and it raises the question whether the U.S. Supreme Court’s decision in Moore v. Harper could become moot, after a lot of briefing and argument has already been considered by the Supreme Court on the independent state legislature theory.

As I recently wrote,

Back on November 9, I wrote:

Could the Flipping of the North Carolina Supreme Court to Republican Control Moot the Moore v. Harper Case about the Independent State Legislature Doctrine?

With news that the North Carolina Supreme Court has flipped to Republican control, there is a good chance that the this court’s holding that partisan gerrymandering violates the state constitution will be overturned. That ruling will allow Republicans to draw a partisan gerrymander of North Carolina’s congressional districts in time for the 2024 elections.

But it also may moot Moore v. Harper, the big “independent state legislature”/Elections Clause case. That case argues that the North Carolina’s ruling violated the power of the state’s general assembly to decide on the shape of congressional districts.

There have been a ton of amicus briefs filed (including my own) and oral arguments are set for December 7. Not clear to me how quickly a case could make it to the state Supreme Court to cause it to reconsider its partisan gerrymandering ruling, and if there might be an incentive to hold those suits to get a ruling from the U.S. Supreme Court on this issue.

Now, via Democracy Docket, comes this this petition for rehearing in the North Carolina Supreme Court in the remedial phase of the Harper case involving the maps. The case specifically asks for the original holding—-that the North Carolina congressional districts are an unconstitutional partisan gerrymander under the state constitution—be overturned.

If that case is overturned before the Supreme Court decides Moore, it seems to me that it likely moots the case.

Indeed, I wonder if SCOTUS will delay deciding this case if the NC Supreme Court grants rehearing.

I don’t know that the NC court would do so. As Marc Elias argues, doing so would be a radical act. But it could happen and then call into question whether we will find out the vitality of the independent state legislature theory or not in Moore.

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Does Michigan’s decision to move up its presidential primary violate the state’s new constitutional right to vote?

The Democratic National Committee recently approved changes to the presidential primary calendar. One of those changes permits Michigan to move into February for its presidential primary. Michigan just changed its primary to February. But the Republican National Committee rules forbid a February primary for Michigan. RNC rules would dramatically reduce the number of delegates Michigan receives, from its present total of (I think) 55 to “to nine (9) plus the members of the Republican National Committee from that state.”

The same thing happened in 2008, when Michigan (among other states) went early. But the penalty at the time was a 50% reduction in delegates. The penalty has since been increased to induce compliance. It’s a significant cost for Republicans to go early.

Josh Putnam points out potential alternatives: maybe Michigan funds a second, later primary for Republicans. Or maybe Michigan Republicans “opt out,” leave a “beauty contest” in place in February, then hold a private primary or caucus in March.

But I wonder if the new law now violates a new state constitutional right to vote enacted last year, Proposition 2. That includes the following language:

The fundamental right to vote, including but not limited to the right, once registered, to vote a secret ballot in all elections. No person shall: (1) enact or use any law, rule, regulation, qualification, prerequisite, standard, practice, or procedure; (2) engage in any harassing, threatening, or intimidating conduct; or (3) use any means whatsoever, any of which has the intent or effect of denying, abridging, interfering with, or unreasonably burdening the fundamental right to vote.

Any Michigan citizen or citizens shall have standing to bring an action for declaratory, injunctive, and/or monetary relief to enforce the rights created by this part (a) of subsection (4)(1) on behalf of themselves. . . .

Presidential primary elections are tricky things to pin down as a legal matter, something I’ve noted briefly here. But, at first blush, the decision to move the Republican presidential primary from March to February might have the “effect” of “abridging” or “interfering with” the “fundamental right to vote.” If your vote in March had the power to choose 55 delegates to the national presidential nominating convention, but your vote now in February has the power to choose 12 delegates to the national presidential nominating convention, that would seem to dilute your political power.

Now, again, it’s not exactly clear to me how this works for a presidential primary election. Voters are formally choosing delegates to a convention. But I imagine that this still falls within what the constitution would define the “fundamental right to vote.” That is, if the legislature abolished absentee voting or drop boxes in a presidential preference primary (elsewhere now required in the constitution), one could challenge that.

Then again, it’s also contingent on the behavior of a third party, the RNC’s rules and recognition of what states can or cannot do, and the RNC could, of course, change its rules. It becomes much more challenging to think about how this new state constitutional right operates against that backdrop.

I don’t have any answers, but I do wonder about how a initiative of language with this breadth affects what’s happening in the presidential primary shakeup right now.

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