Category Archives: Supreme Court

“The Untold Link Between Justice Alito and Trump’s Election Denying Efforts; Mark Martin floated fringe theories to keep Trump in power. Supreme Court Justice Samuel Alito taught with him — even after January 6.”

election subversion risk, Supreme Court

Shawn Musgrave for The Intercept:

On the evening of January 6, 2021, retired North Carolina Supreme Court Chief Justice Mark Martin had a nine-minute conversation with former President Donald Trump. This call followed weeks of efforts by Martin to find any legal means to keep Trump in power, during which he peddled fringe theories of election fraud and constitutional law to state officials and the Supreme Court.

Just 20 days after the insurrection, Martin had another intimate audience with another powerful right-winger: He taught a three-day seminar on constitutional law with U.S. Supreme Court Justice Samuel Alito for Regent University Law School in Virginia, where Martin was the dean at the time. 

This link between a Supreme Court justice and such a close legal adviser to Trump’s Big Lie efforts has not been reported previously, and it adds to mounting questions about Alito’s sympathy for Trump heading into the election. 

Despite evidence at the time that Martin was part of the Trump campaign’s legal brain trust and fed Trump radical ideas about the Constitution, Alito taught the three-day seminar with him again in 2022.

Martin and Alito did not respond to The Intercept’s questions for this story. 

“It was and continues to be a shock to the system knowing that the upper echelons of the legal community used their legal talents to subvert the will of the people,” said Gabe Roth, executive director of Fix the Court, “and that Supreme Court justices of all people are friends with these individuals.”  

Martin’s continued access to Alito even after January 6 also illustrates just how little scrutiny Martin ever faced. While other prominent Trump legal advisers like John Eastman and Rudy Giuliani have faced sanctions for their efforts to overturn the 2020 election results, Martin has never publicly accounted for his role. He’s still a law school dean, now at High Point University, a private university in North Carolina, which also did not respond to The Intercept’s questions about Martin’s relationship with Alito. 

Martin remains active in prestigious legal organizations, including the American Law Institute and American Bar Association committees, where he recently sat on a judicial ethics panel and moderated another about election law. He was at the Republican National Convention in July, and a far-right group recently floated Martin as a potential Supreme Court nominee. …

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My New One at Slate: “Jack Smith’s Big New Jan. 6 Brief Is a Major Indictment of the Supreme Court”

election subversion risk, Supreme Court

I have written this piece for Slate. It begins:

It’s rare to simultaneously feel red hot anger and wistfulness, especially when merely reading a document. But that’s exactly the emotions that washed over me when I read the redacted version of special counsel Jack Smith’s brief reciting in detail the evidence against Donald Trump for attempting to subvert the 2020 election. The anger is at the Supreme Court for depriving the American people of the chance for a full public airing of Donald Trump’s attempt to use fraud and trickery to overturn Joe Biden’s 2020 presidential victory before voters consider whether to put Trump back in office beginning January 2025. The wistfulness comes with the recognition that there is about an even chance that this will be the last evidence produced by the federal government of this nefarious plot. If Donald Trump wins election next month, the end of this prosecution is certain and the risks of future election subversion heightened….

Right now it appears to be a tossup whether Trump or Vice President Kamala Harris will win office in the November election. If Trump wins, he will have his attorney general fire Smith and shut down this prosecution. If he keeps his promises, he even may seek to investigate and prosecute Smith, Harris, Biden, and others. There is a risk of authoritarianism down the line.

The fact that no jury may pass on the deadly serious allegations in Smith’s complaint will do more than simply let Trump and others off the hooks for their potential crimes. It will make future criminal activity related to American elections much more likely. And it all could have been avoided if McConnell, Garland, and especially the Supreme Court did the right thing.

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“How the US Supreme Court could get involved in the 2024 presidential election”

Supreme Court, Uncategorized

ABC News:

The U.S. Supreme Court, faced with sagging public confidence and a deepening perception its decisions are politically-motivated, could soon play a critical role in how some 2024 presidential ballots are cast and counted and, potentially, how contested election results are certified.

“As prepared as anyone can be,” said Justice Ketanji Brown Jackson, the court’s junior justice, when asked recently about the flood of election-related lawsuits headed toward the high court.

Hundreds of state and federal cases involving disputes over the legitimacy of state voter rolls, access to voting places, and procedures for counting ballots are currently pending. A majority of them were brought by Republicans.

“It is a deluge,” said Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice, a nonpartisan think tank tracking the unprecedented volume of election-year litigation. “It is a strategy to sow disinformation and chaos in the election system.”

Many of the lawsuits, predicated on “conspiracy theories” and advancing tenuous legal arguments, will ultimately be tossed out on technical grounds, Weiser said. But some may reach the justices with the potential to alter voting procedures in the final weeks of the campaign, depending on how they rule.

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“ACLU asks U.S. Supreme Court to take up challenge to Pennsylvania’s mail ballot dating rule”

absentee ballots, Supreme Court

Votebeat:

The American Civil Liberties Union of Pennsylvania is asking the U.S. Supreme Court to decide whether requiring voters to date their mail ballot return envelopes violates federal law.

The group filed its petition Friday on behalf of the Pennsylvania branch of the NAACP. It follows a separate request from voting rights groups this week to Pennsylvania’s highest court for an expedited ruling on the date requirement.

“The right to vote is one of the most important in this country,” said Janette Wallace, general counsel of the NAACP. “Ballots should not be rejected because of irrelevant errors. We will continue to fight so that voters’ voices may be heard. That’s why we’re taking this to the Supreme Court.”

The case is one of several challenging the rules around mail ballot voting in Pennsylvania, and centers on whether the state’s requirement that voters handwrite a date on their mail ballot return envelope violates the materiality provision of the 1964 Civil Rights Act.

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“Robert F. Kennedy Jr. Won’t Be on New York Ballot, Supreme Court Rules”

ballot access, Supreme Court

NYT:

The Supreme Court said on Friday that it would not restore Robert F. Kennedy Jr. to the ballot in New York after a state court judge ruled that he had used a sham address on his nominating petition.

The court’s brief order gave no reasons, which is typical when it rules on emergency applications. No dissents were noted.

Mr. Kennedy has suspended his campaign and endorsed former President Donald J. Trump. But his lawyers told the justices that New Yorkers should be permitted to cast their votes for him. “A suspended campaign is not a terminated campaign,” they wrote.

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“The Surprising Survival—So Far—of the Corporate Contribution Ban”

campaign finance, Supreme Court

Richard Briffault has posted this draft on SSRN (forthcoming, Chicago Business Law Review). Here is the abstract:

Citizens United notwithstanding, the 117-year-old federal ban on corporate campaign contributions and similar prohibitions in twenty-one states remain on the books and continue to apply. In the fourteen years since Citizens United, at least ten decisions by federal courts of appeals (from six different circuits) or state supreme courts have upheld these federal or state corporate contribution bans. The decisions have relied on a pre-Citizens United decision, Federal Election Commission v. Beaumont, which upheld the federal corporate contribution ban and, on two of Beaumont’s rationales—protecting the interests of dissenting shareholders and preventing donors from circumventing the limits on individual contributions by using corporations as conduits. They have also been grounded in the fundamental principle of modern campaign finance doctrine, which Citizens United underscored, that contribution restrictions are subject to a less rigorous standard of review than expenditure restrictions.

It is not clear how long these arguments will continue to have force. Citizens United rejected shareholder protection as a justification for the corporate spending ban. In recent cases, the Court has questioned the anti-circumvention rationale and ratcheted up its review of contribution restrictions. The Court’s increasing skepticism about campaign finance restrictions generally may ultimately prove fatal to the longstanding corporate campaign contribution ban.

For now, at least, the corporate campaign contribution ban remains a part of campaign finance law. This Article examines the history of corporate contribution regulation, its current status, and its potential future. Part II traces the ban’s statutory and doctrinal development. Part III analyzes how courts have threaded the needle of sustaining the corporate contribution ban notwithstanding Citizens United. Part IV addresses other developments in the Supreme Court’s campaign finance jurisprudence that threaten the survival of the ban. Part V provides brief descriptions of possible alternatives to the ban. Part VI concludes with some speculations about the persistence of the corporate contribution ban.

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“Will the Supreme Court Revive the Dangerous Fringe Election Theory It Just Rejected?”

legislation and legislatures, Supreme Court

Anna Jessurun in Slate:

As several scholars predicted, ISLT proponents have now seized on the language in Moore to argue that state supreme court decisions that invalidate state election laws on state constitutional grounds violate the elections clause. This spring, the Montana Supreme Court held that various election laws, such as the elimination of same-day voter registration and the restriction of third-party absentee ballot collection activities, violated the right to vote in the state constitution. Now Montana has asked the U.S. Supreme Court to review and reverse that decision, arguing that by striking down these laws, the state Supreme Court unconstitutionally interfered with the authority of the Legislature.

Far from raising substantial questions under the elections clause, the Montana case underscores why the vast majority of post-Moore ISLT claims should not succeed. As I and others argue in an article forthcoming in Boston College Law Review, it will be exceptionally rare for a state court to exceed the ordinary bounds of judicial review, and accordingly, it will almost never be appropriate for the Supreme Court to second-guess state court decisions on state constitutional law under the elections clause.

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Doomcasting continues to overstate the case for a presidential election going to the House of Representatives

election administration, electoral college, Supreme Court

Justin Levitt‘s excellent piece earlier this election season, “Get Ready for the Scourge of Election Season: Electoral-Process Porn,” is well worth another read. That’s because a new round of paranoia about the 2024 election continues to spread.

There are a series of wild cases made that the 2024 election can be “thrown to the House of Representatives” with one weird trick: a state refusing to certify the vote.

Rachel Maddow started the most recent trend of stories on this in a New York Times piece, a piece later discovered to have so many errors it had a significant rewrite in the middle along with a correction appended to it. But that hasn’t stopped the doomcasters.

The authors of this piece at USNews wrongly make the claim, “If partisans in one key state were to halt the certification of votes, blocking either candidate from reaching the 270 Electoral College votes required to win, our next president could be selected by the next U.S. House of Representatives.”

More recently, Mother Jones parroted a claim by Stacey Abrams: “If there’s a lengthy dispute over the vote count, Georgia could miss the December 11 deadline for certifying its Electoral College results. If no candidate receives the 270 votes necessary to win the Electoral College as a result, the presidential election would be thrown to the House of Representatives, where Republicans control a majority of state House delegations, allowing them to swing the election to Trump.”

These scenarios are simply not true. There are potential concerns around certification, but throwing the election to the House is not one of them, and it certainly has nothing to do with the number 270.

Continue reading Doomcasting continues to overstate the case for a presidential election going to the House of Representatives →
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Download the Revised Draft of My Forthcoming Yale Law Journal Piece, “The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law”

election subversion risk, Supreme Court, The Voting Wars, Voting Rights Act

You can find the revised draft here. The new draft incorporates discussion of the Supreme Court shadow docket order in the Arizona voter registration case and greatly expands Part III of the paper, discussing democratic theory and international human rights norms in relation to the pro-voter principles I urge should be centered in U.S. election law.

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Blockbuster NYT Reporting from Jodi Kantor and Adam Liptak Reveals Key Details on Trump v. Anderson, the Trump Immunity Case, and the Fischer Obstruction Case, Showing a Conservative Majority Less Willing to Compromise

election subversion risk, Supreme Court

This reporting is remarkable, not only for its substance but for the fact that so much inside information has been leaked. (This is the biggest leak since the leak of the draft Dobbs abortion decision, although this of course is coming after the opinions have been issued).

I had hypothesized when these cases were coming to the Court about some “grand bargain” going on behind the scenes in the Trump disqualification and Trump immunity cases; I could not have been more incorrect. I had mistaken Chief Justice Roberts for someone who put the public legitimacy of the Supreme Court and the desire to rise above politics above all else.

The Chief Justice led a charge in the Trump immunity case in an attempt to totally kill the case; he resisted efforts from Justice Sotomayor Toward compromise. The only compromise was to hear the case before the election, which is hardly anything.

Our speculation was right that in the Trump disqualification case out of Colorado, the big fight behind the scenes was over whether the conservative majority would include dicta that would make it harder for Congress to try to disqualify Trump should he win the electoral college vote in the 2024 elections.

The other tidbit in here, less consequential, is that Justice Alito apparently was no longer listed as the author of Fischer—the case involving obstruction charges connected to the Jan. 6, 2021 invasion of the Capitol—likely because the information came out about the flags Justice Alito’s wife had been flying, potentially signalling support for the “stop the steal movement.”

The reporting shows a partisan and divided Court, one in which when it comes to political cases, the conservative majority is showing itself even less interested in compromise and common ground.

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“Fontes asks Mayes to explain how AZ can implement reinstated voter registration law”

election administration, Supreme Court

Arizona Mirror:

Arizona Secretary of State Adrian Fontes wants Attorney General Kris Mayes to provide elections officials guidance on how Arizona can enforce part of a voter registration law that the U.S. Supreme Court recently allowed to go into effect, even as another court weighs its constitutionality. 

The Supreme Court last month ordered Arizona to enforce part of a 2022 law expanding citizenship requirements for new voters, lifting a block on the law that had been put in place by a lower court judge. 

The high court’s move allows Arizona to implement a portion of the law that allows the state to stop accepting state-created voter registration forms from Arizona residents unless proof of citizenship is provided. 

Now, Fontes has asked Mayes for a legal opinion in light of the ruling. 

First, Fontes wants to know if county recorders can perform a standard check on a person whose voter registration doesn’t include documented proof of citizenship prior to rejecting the form. If so, and county elections officials are able to obtain that proof via the check, he wants Mayes to advise whether they can register that person to vote. 

Second, Fontes wants Mayes to opine on the official date of registration for a voter who fails to provide proof of citizenship with the initial form, but does so later. Should the date of registration, he asked, be for the original registration date or when the citizenship proof was provided? 

Finally, county recorders are required to give those registering to vote until 7 p.m. on Election Day to provide proof of citizenship, but a consent decree in the case states that information must be provided no later than the Thursday before Election Day. Fontes wants Mayes to advise which deadline county recorders should follow. …

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“Sweeping Section Three under the Rug: A Comment on Trump v. Anderson”

election subversion risk, legislation and legislatures, Supreme Court

William Baude and Michael Stokes Paulsen have posted this draft on SSRN (forthcoming Harvard Law Review). Here is the abstract:

In Trump v. Anderson, the Supreme Court was confronted with the explosive question of whether former President Donald Trump was constitutionally disqualified from future office by Section Three of the Fourteenth Amendment. The Colorado Supreme Court had found that he was and consequently held him ineligible for the state’s primary ballot as a matter of state election law. Rarely have the stakes of a constitutional issue been so great. The institutional, political, and personal pressures on the justices presented by Trump v. Anderson were enormous, requiring the justices to rise to the demands of the occasion in a way perhaps unrivaled in the Court’s history.

They did not do so. Unlike some “great cases” of American history, where the press of time and circumstances had the effect of concentrating the judicial mind to produce important landmark constitutional decisions, the Court in Trump v. Anderson produced a flimsy decision in a high-stakes, high-profile, high-intensity case of great importance. Instead of confronting the issues squarely, the Court tried to sweep Section Three under the rug. The Court decided little, in the end, and what it did decide was still flagrantly wrong.

The Court held that states may not enforce Section Three’s disqualifications from office in the context of state election law concerning elections to federal office. That holding is legally indefensible. It fundamentally inverts the Constitution’s text, structure, and history concerning the power of states in presidential elections.  

Yet equally significant is what the Court did not decide. It did not reject the Colorado Supreme Court’s conclusion that Trump is disqualified from future office, under the standards of Section Three. It did not hold that the events culminating in the January 6 attack on the capitol fell short of the constitutional standard for an “insurrection.” It did not reject the Colorado Supreme Court’s conclusion that Trump had “engaged in” that insurrection. It did not question the Colorado courts’ factual findings concerning Trump’s conduct and intent. And–perhaps contrary to initial appearances, and contrary to the critique of the justices concurring in the judgment only–the Court did not hold that Section Three is legally inoperative without enforcement legislation by Congress. Nothing in the case contradicts the conclusions we reached in our prior scholarship, The Sweep and Force of Section Three, on any of these points.

The upshot is that Donald Trump remains constitutionally disqualified from the presidency and may not lawfully serve in that office or any other unless Congress removes the disqualification by two-thirds majorities of both houses. Nothing in Trump v. Anderson changes that legal reality. If Donald Trump was constitutionally ineligible to the presidency on March 3, 2024, the day before the Court’s decision, he remained constitutionally ineligible on March 5, the day after its decision. And he remains ineligible today. A variety of potential avenues to enforce that disqualification remain. Sweeping Section Three under the rug thus may merely have postponed the day of ultimate constitutional reckoning.

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