Category Archives: legislation and legislatures

How the parties handle adverse precedent in Moore v. Harper

November 1, 2022, 11:45 amElections Clause, legislation and legislaturesDerek Muller

There’s plenty of precedent for the parties to rely upon in Moore v. Harper. I wanted to see how each side handled one of the toughest cases on either side–and apart from a brief aside from the petitioners, the… Continue reading

Muller amicus brief in Moore v. Harper

October 27, 2022, 7:34 amlegislation and legislaturesDerek Muller

I filed this amicus brief in support of the respondents in Moore v. Harper. It argues that 2 U.S.C. § 2c requires that congressional single-member districts be drawn “by law,” which embraces state courts and state constitutions, as Justice Scalia’s… Continue reading

Bevy of Amicus Briefs Supporting Respondents in Moore v. Harper, the Independent State Legislature Theory Case before the Supreme Court

October 27, 2022, 7:33 amlegislation and legislatures, Supreme CourtRick Hasen

Among the more interesting briefs being filed include: ACLU, Evan Bernick, Bipartisan Election officials, Bipartisan election administrators, the Brennan Center, CAC, CLC et al, Democracy and Race scholars, Atiba Ellis, Former… Continue reading

My New One at Slate with Nat Bach:”The Supreme Court Is Headed for a Self-Imposed Voting Caseload Disaster”

October 26, 2022, 10:55 amlegislation and legislatures, Supreme CourtRick Hasen

Nat Bach and I have written this piece at Slate. It begins: On Dec. 7, the Supreme Court will hear oral argument in Moore v. Harper, a radical case on the fate of the so-called “independent state legislature” theory… Continue reading

My Amicus Brief in Moore v. Harper Case (Independent State Legislature Theory) Filed

October 25, 2022, 3:28 pmlegislation and legislatures, Supreme CourtRick Hasen

You can find the brief here. The Summary of Argument begins: Petitioners’ expansive interpretation of the Elections Clause—the so-called “independent statelegislature” theory—likely will lead to a flood of new federal litigation that will further destabilize American elections and contribute… Continue reading

“Congress,” the Presentment Clauses, and Moore v. Harper

October 24, 2022, 12:37 pmlegislation and legislaturesDerek Muller

I appreciate the posts from Professor Rick Pildes and Professor Michael Herz on the nature of “Congress” under the Elections Clause, but I take a different approach. I don’t think “Congress” means different things in different parts of the Constitution.… Continue reading

Conservative Luminaries (including former DC Circuit Judge Thomas Griffith) File Amicus Brief in Moore v. Harper Siding with Respondents

October 20, 2022, 2:10 pmlegislation and legislatures, Supreme CourtRick Hasen

This is an interesting one that will get some Justices’ attention. It argues that the North Carolina Republicans are wrong even if one accepts the concurrence by Chief Justice Rehnquist in Bush v. Gore and the dissent by Chief Justice… Continue reading

“The Conservative Stalwart Challenging the Far-Right Legal Theory That Could Subvert American Democracy”

October 19, 2022, 11:35 amlegislation and legislatures, Supreme CourtRick Hasen

Jane Mayer in the New Yorker: A powerful new litigant has joined one of the most momentous cases slated to be heard by the Supreme Court this term. The respondents in the case of Moore v. Harper filed a… Continue reading

Non-State Respondents File Consolidated Brief on the Merits in Moore v. Harper Case (Updated to include link to state brief)

October 19, 2022, 11:32 amlegislation and legislatures, Supreme CourtRick Hasen

You can find it here. Update: You can find the state brief here. I post some thoughts on the non-state brief here.

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

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