Category Archives: legislation and legislatures

The limited path for litigation after Moore v. Harper was set out in a series of related cases between 2004 and 2007

June 28, 2023, 6:46 amElections Clause, legislation and legislaturesDerek Muller

ELB readers may recall my post last year on Colorado General Assembly v. Salazar (2004). There, the Court, over three dissenting justices, denied cert in a Legislature Thereof Clause dispute under the Elections Clause in Colorado’s redistricting. A lot of… Continue reading

Pildes: “The Supreme Court Rejected a Dangerous Elections Theory. But It’s Not All Good News.”

June 28, 2023, 6:44 amlegislation and legislatures, Supreme CourtRick Hasen

Excellent new Rick Pildes in the NYT: Relief that the court did not endorse this extreme position, though, must be tempered by the fact — which many initial responses to the decision have not recognized — that the court simultaneously… Continue reading

Don’t Count on the Gorsuch and Thomas Votes in Future Voting Cases; Expect Them to Side Against Voting Rights Litigants

June 27, 2023, 5:42 pmlegislation and legislatures, Supreme Court, Voting Rights ActRick Hasen

In today’s Moore decision, Justices Thomas and Gorsuch rejected the majority approach to the independent state legislature theory, believing instead that state legislatures have almost plenary power and cannot be limited even by state courts applying state constitutions. (Justice Alito… Continue reading

“How the Supreme Court’s decision on election law could shut the door on future fake electors”

June 27, 2023, 4:57 pmelection subversion risk, legislation and legislatures, Supreme CourtRick Hasen

Politico: The Supreme Court’s rejection of a controversial election theory may also have another huge political consequence for future presidential contests: It obliterated the dubious fake elector scheme that Donald Trump deployed in his failed attempt to seize a second… Continue reading

Separating Spin from Reality in the Supreme Court’s Moore v. Harper Case: What Does It Really Mean for American Democracy and What Does It Say About the Supreme Court?

June 27, 2023, 3:29 pmlegislation and legislatures, Supreme CourtRick Hasen

There’s a whole lot of spin out there about the Supreme Court’s 6-3 decision in Moore v. Harper concerning the scope of the “independent state legislature” theory. To hear some progressives tell it, the ISLT theory is dead and democracy … Continue reading

My New One at Slate: “There’s a Time Bomb in Progressives’ Big Supreme Court Voting Case Win”

June 27, 2023, 10:17 amlegislation and legislatures, Supreme CourtRick Hasen

I have written this piece for Slate. It begins: It is indeed a cause for celebration that the United States Supreme Court, on a 6-3 vote in Moore v. Harper, rejected an extreme version of the “independent state legislature”… Continue reading

A few more quick thoughts on Moore

June 27, 2023, 9:08 amBush v. Gore reflections, election law and constitutional law, Elections Clause, legislation and legislatures, redistricting, UncategorizedFranita Tolson

Moore v. Harper, much like Allen v. Milligan, was a shocker for me. Given how the posture of the case had changed, I didn’t expect the justices to reach the merits. I’m glad they did. A few thoughts:1) In some… Continue reading

Breaking: Supreme Court Decides Moore v. Harper, Rejecting Maximalist Version of Independent State Legislature Theory But Giving Federal Courts a Chance to Second Guess Some State Rulings as “Transgressing the Ordinary Bounds of Judicial Review”

June 27, 2023, 7:18 amlegislation and legislatures, Supreme CourtRick Hasen

[This post has been updated.] You can find the ruling at this link. The United States Supreme Court, on a 6-3 vote, has adopted a compromise position on the meaning of the independent state legislature theory. The position of the… Continue reading

“Today’s Senate: Less debate, fewer votes and taking forever to do it”

June 24, 2023, 12:31 pmlegislation and legislaturesRick Hasen

Paul Kane for WaPo: The world’s greatest deliberative body, as senators like to call their club, is not living up to that moniker: they’re voting less often and taking longer to hold those roll calls, while debating the issues far… Continue reading

About That Black’s Law Dictionary Definition of Facilities Cited by Justice Alito in His WSJ Defense of Not Reporting the Free Ride on the Private Plane of a Billionaire Litigant…

June 22, 2023, 1:58 pmconflict of interest laws, legislation and legislatures, statutory interpretation, Supreme CourtRick Hasen

In my earlier post on Justice Alito’s laughable defense that he did not have to report the free ride on the private plane because it was “hospitality … on …facilities” owned by a person, I noted that one of the… Continue reading

The Supreme Court’s ICWA decision may offer insight into the Legislature Thereof Clauses and the Electoral Count Reform Act

June 19, 2023, 5:43 amelectoral college, legislation and legislatures, Supreme CourtDerek Muller

Last week, the Supreme Court issued a decision in Haaland v. Brackeen regarding the constitutionality of the Indian Child Welfare Act. Hardly the stuff of election law. But two small parts of the opinion stood out to me. First, the… Continue reading

Read the Federal District Court Opinion Holding former VP Pence Did Not Have Speech or Debate Clause Immunity to Testify About Certain Election Subversion/January 6 Events

June 9, 2023, 4:48 pmelection subversion risk, legislation and legislatures, Speech or Debate ClauseRick Hasen

Still partially redacted, but now released. (Via Zoe Tillman)

Eighth Circuit holds legislative privilege prevents inquiry into legislative process, even for questions of racial discrimination in voting rights suit

June 6, 2023, 8:25 amlegislation and legislatures, Voting Rights ActDerek Muller

That’s the same headline I gave last month when the Fifth Circuit issued such a decision. Here’s the opinion in In re North Dakota Legislative Assembly. The opinion was written by Judge Colloton, joined by Judge Benton. An excerpt:… Continue reading

The Curious Failure to Cite to Rehnquist’s Bush v. Gore Concurrence and the Independent State Legislature Theory in 2004 Salazar Case; The Issue Was Clear to Justice Stevens’ Then-Clerk (and Now-CA Supreme Court Justice) Leondra Kruger

May 25, 2023, 5:01 pmBush v. Gore reflections, legislation and legislatures, Supreme CourtRick Hasen

As the independent state legislature theory remains in limbo in Moore v. Harper, I’ve thought back on Chief Justice Rehnquist’s dissent from denial of cert in Colorado General Assembly v. Salazar (2004) (a case that few other than Derek Muller… Continue reading

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