Category Archives: legislation and legislatures

The other batch of cases Moore v. Harper may not adequately address

October 17, 2022, 6:04 amlegislation and legislaturesDerek Muller

Justice Samuel Alito’s opinion dissenting from the denial of application for stay in Moore v. Harper last March offered the following reflection and string citation of cases: This case presents an exceptionally important and recurring question of constitutional law, namely,… Continue reading

Baude and McConnell: “The Supreme Court Has a Perfectly Good Option in Its Most Divisive Case; In Moore v. Harper, the justices should not side with the views of either party.”

October 12, 2022, 7:25 amlegislation and legislatures, Supreme CourtRick Hasen

William Baude and Michael McConnell in The Atlantic: In a constitutional republic like ours, legislatures ultimately derive their authority from the people. This authority is conveyed through written constitutions that charter the government, vest power in different branches, and… Continue reading

Did the Postal Service usurp Congress’s authority under the Elections Clause during the 2020 election?

October 10, 2022, 5:48 amElections Clause, legislation and legislaturesDerek Muller

A federal district court judge in Washington, DC just issued a decision in New York v. Biden (originally filed as New York v. Trump). Here are excerpts of New York’s claim under the Elections Clause, filed back in October 2020… Continue reading

Anachronistic views of state courts and Moore v. Harper

October 7, 2022, 1:19 pmlegislation and legislaturesDerek Muller

I’ve had my share of skepticism here at ELB over the legislature’s claims in Moore v. Harper, including questions about whether there is a consistent, judicially-manageable standard that the petitioners could articulate, and whether there is a political question … Continue reading

New Report from the Brennan Center

October 6, 2022, 2:03 pmelection administration, legislation and legislatures, votingFranita Tolson

The Brennan Center for Justice at NYU Law has published “Voting Laws Roundup: October 2022,” their latest roundup of state voting and election laws, and “Restrictive Voting Laws Enacted Since 2020 in Effect for the Midterms,” a… Continue reading

“There is Absolutely Nothing to Support the ‘Independent State Legislature’ Theory”

October 3, 2022, 2:44 pmlegislation and legislatures, Supreme Court, theory, UncategorizedFranita Tolson

Must read article by Judge Luttig in The Atlantic on the independent state legislature theory. Judge Luttig argues that there is nothing in the text or structure of the Constitution that insulates the decisions of state legislatures, regarding the times,… Continue reading

Is there a political question issue lurking in Moore v. Harper?

September 26, 2022, 4:58 amElections Clause, legislation and legislaturesDerek Muller

Plenty of commentary and analysis over Moore v. Harper focuses on the meaning of the Legislature Thereof Clause tucked inside the Elections Clause. But one concept has received essentially zero examination: the political question doctrine. Some of the history of… Continue reading

ELB Podcast, Season 4, Episode 2: Moore v. Harper and Potential Threats to American Democracy

September 18, 2022, 5:43 amELB Podcast, legislation and legislatures, Supreme CourtRick Hasen

New ELB Podcast: What is the “independent state legislature theory,” and does a potential Supreme Court embrace threaten American democracy?Will use of the doctrine raise the risk of election subversion or stolen elections?How far could the theory go in… Continue reading

My New Article Posted on SSRN: “Election Reform: Past, Present, and Future”

September 13, 2022, 3:51 pmdirect democracy, legislation and legislatures, Supreme Court, theory, voting, Voting Rights ActRick Hasen

I have posted on SSRN a draft of this encyclopedia article, forthcoming in the Oxford Handbook of American Election Law (Eugene Mazo, editor, forthcoming 2023). Here is the abstract: This Chapter considers what election “reform” is and why many Americans… Continue reading

Important Amicus Brief in Moore v. Harper Case Filed by Conference of Supreme Court Justices

September 6, 2022, 6:00 pmlegislation and legislatures, Supreme CourtRick Hasen

This brief is well done (Carter Phillips/Evan Caminker) but also important in that it represents the views of Chief Justices of states from across the political spectrum. Tom Wolf tweet thread explains the brief’s significance. From the Brief’s summary of… Continue reading

“A Second Constitutional Convention? Some Republicans Want to Force One”

September 4, 2022, 6:31 pmlegislation and legislaturesRick Hasen

Carl Hulse for the NYT.

Federal District Court Holds “Speech or Debate Clause” Immunity Only Protects Lindsay Graham from Certain Questions Before Georgia Grand Jury Investigating Trump Attempt to Interfere with 2020 Election Count

September 1, 2022, 9:40 amlegislation and legislaturesRick Hasen

From the Order: This case comes before the Court on Senator Lindsey Graham’s Supplemental Motion to Quash [40]. After due consideration, the Court again declines to quash the subpoena in its entirety. As to the issue of partial quashal,… Continue reading

Follow-Up Written Answers for Senate Judiciary Committee on Voting Rights after Brnovich and Shelby County

August 30, 2022, 11:38 amlegislation and legislatures, Supreme Court, Voting Rights ActRick Hasen

Last July, I testified at a Senate Committee on the Judiciary, Subcommittee on The Constitution, hearing entitled “Restoring the Voting Rights Act after Brnovich and Shelby County.” Two Senators had follow-up questions, and I have now posted the questions and… Continue reading