Category Archives: Supreme Court

“Trump is poised to bypass his legal woes thanks to judges he appointed”

Politico: “Trump’s three Supreme Court picks formed a decisive bloc to declare presidents immune from prosecution for official conduct — freezing the charges he faces in multiple jurisdictions for trying to subvert the 2020 election and putting his New York conviction in doubt. Then his nominee to the federal court in Florida, Judge Aileen Cannon, handed him another victory by dismissing the charges he faces for hoarding classified documents and concealing them from investigators.”

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“Global Perspectives on Judicial Politics and Democratic Backsliding”

A special issue of Law & Policy, edited by Michael Dichio and Igor Logvinenko. Here’s a description:

This Special Issue “Global Perspectives on Judicial Politics and Democratic Backsliding” includes ten articles by fifteen scholars, providing an in-depth analysis of the judicial politics in the context of democratic backsliding. Five of the articles focus on the U.S. judiciary, examining its unique position in both enabling and resisting democratic backsliding. The other five present case studies from Europe, Southeast Asia, and Latin America, showcasing diverse tactics, approaches, and outcomes used by courts to react in a variety of ways to actors in these political systems. Published during the pivotal 2024 electoral year, this collection underscores the importance of continued research into the judiciary’s dual capacity to both protect and undermine democratic norms.

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“The Future of Press Freedom: Democracy, Law, and the News in Changing Times”

I was pleased to contribute a chapter to this project from the Knight First Amendment Institute:

“The Future of Press Freedom: Democracy, Law, and the News in Changing Times,” piloted by the Institute’s 2023-2024 Senior Visiting Research Scholars RonNell Andersen Jones and Sonja R. West, brings together scholars from a number of interrelated fields, to answer critically important questions about how to identify performers of the press function for purposes of legal and constitutional protection. How, if at all, can we shape doctrine and legal policies that grant rights to those acting as proxies for the public without privileging the powerful over the weak? How can we distinguish performers of the press function from performers of other communicative functions? And what protections might be constitutional necessities for fulfilling the wider purpose of the First Amendment guarantee of freedom of the press?

The project examines these questions through a series of public conversations, blog posts, and essays and featured in a major symposium—entitled “The Future of Press Freedom: Democracy, Law, and the News in Changing Times,” held May 3, 2024, and an edited volume from Cambridge University Press (forthcoming in 2025).

My chapter, “From Bloggers in Pajamas to the Gateway Pundit,” is posted here and will eventually appear in the Cambridge edited volume.

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The Free 2024 Supplement to Lowenstein, Hasen, Tokaji, and Stephanopoulos, Election Law–Cases and Materials (7th Edition) is Now Available

You can download the free Supplement here. The Supplement is current through the Supreme Court’s October 2023 term ending July 2, 2024, and it includes edited versions of the U.S. Supreme Court’s decisions in Moore v. Harper and Trump v. Anderson on disqualification under the 14th Amendment, analysis of the Supreme Court’s decisions in the Allen v. Milligan case involving Section 2 of the Voting Rights Act and the Alexander case on racial gerrymandering, and excerpts from the Supreme Court’s recent decision in Trump v. United States, on potential presidential immunity from criminal charges connected to the 2020 U.S. presidential election.

This is a supplement to Lowenstein, Hasen, Tokaji, & Stephanopoulos, Election Law–Cases and Materials (7th edition, Carolina Academic Press, 2022).

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“Biden set to announce support for major Supreme Court changes”

Washington Post:

President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for the justices and an enforceable ethics code, according to two people briefed on the plans….

The announcement would mark a major shift for Biden, a former chair of the Senate Judiciary Committee, who has long resisted calls to make substantive changes to the high court. The potential changes come in response to growing outrage among his supporters about recent ethics scandals surrounding Justice Clarence Thomas and decisions by the new court majority that have changed legal precedent on issues including abortion and federal regulatory powers.

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Introduction to: Richard L. Hasen, “States a Bulwarks Against, or Potential Facilitators of, Election Subversion” (in new Zelizer and Greenberg book)

In a couple of weeks, NYU Press will release Our Nation at Risk: Election Integrity as a National Security Issue (Julian E. Zelizer & Karen J. Greenberg eds. NYU Press 2024). It’s an impressive and important collection that I’m glad to be part of. Julian and Karen will be writing about the book for ELB Book Corner later in the summer.

In the meantime, here is the Introduction to my chapter.

Introduction to: Richard L. Hasen, States a Bulwarks Against, or Potential Facilitators of, Election Subversion, in Our Nation at Risk: Election Integrity as a National Security Issue 253-70 (Julian E. Zelizer & Karen J. Greenberg eds. NYU Press 2024)

States stand at the fulcrum of a decentralized, fragmented, and partially partisan system of election administration in the United States.[1] The continued ability to run free and fair US elections in these polarized and tumultuous times depends in no small part on whether states will continue to serve as bulwarks against election subversion or whether state actors will become facilitators of it, as the 2020 election signaled was possible.

Placing the states at the center of election security may seem odd given other actors’ significant roles in the US electoral process. On the one hand, states do not have the final word on election rules governing federal, state, and local elections. Federal statutory and constitutional law trumps state rules by virtue of the US Constitution’s Supremacy Clause.[2] For example, federal statutes require states to elect members of Congress from single-member districts, protect minority voters under the Voting Rights Act, and offer a provisional ballot to anyone showing up at the polling place in a federal election who asks to vote but who does not appear to be properly registered.[3] On the other hand, states do not organize and run elections; they generally delegate that task to thousands of local election jurisdictions, typically counties, throughout the United States. Local agencies register voters, organize polling stations, process absentee ballots, and tabulate votes.[4]

The list of tasks and ground rules that states are not responsible for in US election administration, however, obscures the key role that states play in federal elections. Under the Constitution, states set qualifications for voting in congressional elections, subject to US constitutional constraints.[5] States also establish the rules for choosing presidential electors and conducting congressional elections, the latter subject to congressional override; the Constitution gives little guidance for how states should do so.[6] As the Supreme Court wrote in the 2023 case Moore v. Harper: “Elections are complex affairs, demanding rules that dictate everything from the date on which voters will go to the polls to the dimension and font of individual ballots. Legislatures must provide a complete code for congressional elections, including regulations relating to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.”[7] States also help fund elections and establish statewide rules for their conduct, such as voter identification requirements, standards for parties and candidates to appear on the ballot, and the number of days (if any) of early in-person voting and voting by mail.

The states’ central role in the US system of election administration came under close scrutiny during and after the contested 2020 presidential election. US president and presidential candidate Donald J. Trump repeatedly called the integrity of the US election system into question despite all evidence that the election was being run remarkably well under the difficult conditions of the COVID-19 pandemic. His complaints about the potential for fraud led some states to pull back from or seek to shut down efforts making it easier for people to vote in the pandemic.[8]

Following that election, when it was clear that Joe Biden had secured enough Electoral College votes in a fair election to win the presidency, Trump pressured state officials to nonetheless declare irregularities. For example, Trump infamously insisted that Georgia’s secretary of state Brad Raffensperger “find” the 11,870 votes he would need to flip the state’s Electoral College votes to his column. Trump and his allies wanted to use such declarations as a pretext for Republican state legislators in states that Biden had won to send to Congress alternative slates of presidential electors declaring Trump the winner. Trump was unsuccessful in convincing state officials across many states to subvert the election. The efforts came to a head with the January 6, 2021, insurrection at the US Capitol, when Trump supporters violently disrupted Congress’s counting of Electoral College votes in an effort that some hoped would buy more time for state legislatures to send in fake elector slates.

The effort to overturn the 2020 elections failed, but the risk was salient enough that Congress in 2022 passed a new set of rules to clarify that state legislatures do not have the power to send in a slate of presidential electors after the state’s voters have already chosen that slate in a fair election. The Supreme Court in the 2023 Moore v. Harper decision also rejected a radical version of the “independent state legislature” legal theory that could have given license for state legislatures to subvert voters’ will in presidential elections.[9] Trump also faced federal and state charges related to attempted election subversion.[10]

Post-insurrection federal change has not fully eliminated the risk of election subversion in the states, however. Millions of Trump’s followers continue to believe the false claim of a stolen 2020 election and have pressured their legislators for faux “audits” of 2020 election results, for laws making it harder to register and vote, and for legislation that would shift power from local governments to states to administer elections. Some local election administrators and county canvassing boards have been swept up in voter fraud hysteria, and it has fallen to states to prevent local governments from opening new pathways to stolen elections.

This chapter considers states’ essential role in ensuring the security of the US election system. The first section considers how states have served and can continue to serve as bulwarks against election subversion by local actors in a fragmented system. The second section considers the risks of states themselves as potential facilitators of election subversion, focusing in part on conflicts among state actors and the potential for state actors to check each other’s power to ensure free and fair elections. The third section concludes by discussing what Congress and federal courts have done and should do to limit the risks of election subversion by states, local election entities, and private actors.


[1] Richard L. Hasen, “Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them,” Election Law Journal 19, no. 3 (September 2020): 263–88, https://doi.org.

[2] U.S. Const. art. VI, cl. 2.

[3] Uniform Congressional District Act, 2 U.S.C. § 2c (West 2024); Voting Rights Act,52 U.S.C. § 10301–10508 (West 2024); Help America Vote Act of 2002, 52 U.S.C. § 21082 (2002).

[4] On the general contours of fragmented and divided election administration in the United States, see Kathleen Hale and Mitchell Brown, How We Vote: Innovation in American Elections (Washington, DC: Georgetown University Press, 2020), 19–44.

[5] U.S. Const. art. I, § 2.

[6] U.S. Const. art. I, § 4; art. II.

[7] Moore v. Harper, 143 S. Ct. 2065, 2085 (2023) (internal quotation marks and brackets omitted, quoting Smiley v. Holm, 285 U.S. 355, 366 [1932]).

[8] For a brief description of the events of and following the 2020 election from which the rest of this account is drawn, see Richard L. Hasen, A Real Right to Vote (Princeton, NJ: Princeton University Press, 2024), chap. 5. For additional details, see Richard L. Hasen, “Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States,” Harvard Law Review Forum 135, no. 6 (2022): 265–301.

[9] Moore, 143 S. Ct. at 2085–88.

[10] “Keeping Track of the Trump Investigations,” New York Times, August 14, 2023, www.nytimes.com.

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Breaking: Judge Cannon Says Appointment of Special Counsel Was Unconstitutional, Dismisses Trump Documents Case

NYT reports:

In a stunning ruling, the judge, Aileen M. Cannon, found that because Mr. Smith had not been named to the post of special counsel by the president or confirmed by the Senate, his appointment was in violation of the appointments clause of the Constitution.

The ruling by Judge Cannon, who was put on the bench by Mr. Trump, flew in the face of previous court decisions reaching back to the Watergate era that upheld the legality of the ways in which independent prosecutors have been named. And in a single swoop, it removed a major legal threat against Mr. Trump on the first day of the Republican National Convention, where he is set to formally become the party’s nominee for president.

You can find the order here. Judge Cannon relies in part on Justice Thomas’s concurring opinion in Trump v. United States.

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“‘It was horrifying’: Chutkan warns against complacency about Jan. 6”

Politico:

“The effects of that day are still being felt,” [U.S. District Judge Tanya] Chutkan said before sentencing defendant Spencer Offman to 30 days in prison for breaching the building during the riot.

Chutkan used Friday’s sentencing in the relatively routine Jan. 6 case to make a case against complacency about the danger that the attack posed to democracy, characterizing it as a “violent attempt to stop the peaceful transfer of power” in which rioters were “desecrating the center of our government.”

Chutkan, who is also presiding over Donald Trump’s federal criminal case in Washington stemming from his efforts to subvert the 2020 election — culminating in the Jan. 6 violence — didn’t mention the former president in her remarks or give any hint as to how she will handle the case following the Supreme Court’s ruling that Trump is immune from prosecution for some of the events in question.

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“Trump asks judge to toss hush money conviction and dismiss case following Supreme Court immunity ruling”

ABC News:

Former President Donald Trump has asked a New York judge to dismiss his criminal hush money case and vacate his conviction on 34 felony counts by arguing the trial was “tainted” by evidence and testimony that the Supreme Court’s landmark ruling on presidential immunity now makes off-limits.

In a 52-page filing made public on the same day the former president was originally scheduled to be sentenced, Trump’s lawyers argued that prosecutors violated the Supreme Court’s immunity doctrine by using evidence related to official acts — including testimony from former White House aides– to fill “glaring holes in their case.”

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Happening Today: “Year in Review: Democracy Litigation in SCOTUS and the States”

The State Democracy Research Initiative here at University of Wisconsin Law School will be hosting its annual review of democracy litigation in the U.S. and state supreme courts, at 3:00-4:15 CT today. It features Pam Karlan, Derek Muller, Gowri Ramachandran, and Rylee Sommers-Flanagan, with Miriam Seifter moderating. The event will be livestreamed, and you can register here.

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“‘The Justices Dropped This Bomb’: Three Legal Experts on a Shocking Supreme Court Term”

NYT has this fascinating conversation featuring Kate Shaw, Will Baude, and Steve Vladeck, on Trump v. United States, Trump v. Anderson, and other cases from the term. A highlight from Will:

It’s no secret that the Supreme Court trusts no institution in America as much as it trusts the Supreme Court. That’s not something unique to the Roberts court — we’ve been living in an age of judicial supremacy for more than 50 years. But I think the court should recognize that all of the flaws and biases it sees in other institutions are potentially true of itself, too. The justices are only human, even if they are really doing their best.

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Multiple federal courts toss election challenges for lack of standing, citing FDA v. AHM

Last month, I highlighted the Court’s decision in FDA v. AHM and suggested that the decision could disrupt some election litigation. That prediction is coming true.

Yesterday, in Citizens Project v. Colorado Springs, a federal court dismissed Voting Rights Act claim on the ground that the plaintiffs lacked standing. From the decision (lightly revised):

Organizations, like Plaintiffs, have two methods to achieve Article III standing. They can claim organizational standing because they suffered an injury of their own, or they can claim associational standing based on injuries suffered by their members. Id. But Plaintiffs do not claim associational standing. Thus, for Article III purposes, they must demonstrate they have organizational standing.

As noted above, each Plaintiff claims a diversion of its resources for purposes of the injury-in-fact component of Article III standing. According to Plaintiffs, these reroutes include things like diverting time, money, and resources from their other civic or voter engagement activities and their day-to-day operations; duplicating November “get out the vote” efforts; diverting limited employee and volunteer capacity; and deprioritizing other activities preceding April off-year elections.

But these are the same types of injuries the medical-association plaintiffs claimed in Alliance for Hippocratic Medicine, and which the Supreme Court rejected for purposes of organizational standing. There, four pro-life medical associations (along with physicians) sought judicial review under the Administrative Procedure Act in their challenge to the Food and Drug Administration’s (FDA) approval of standards surrounding the administration of mifepristone—a medical abortion-inducing drug. Relying on the Supreme Court’s decision in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), the medical associations claimed they had suffered their own injuries for Article III standing purposes . . .

The Supreme Court deemed these injuries insufficient to confer organizational standing. Drawing a contrast, it explained that the injuries claimed by the organization in Havens directly affected and interfered with that organization’s “core business activities [of providing housing counseling services to low-income persons]—not dissimilar to a retailer who sues a manufacturer for selling defective goods to the retailer.” It found the FDA’s actions imposed no similar impediment on the medical associations’ advocacy business. Id. And it cautioned that “Havens was an unusual case, and this Court has been careful not to extend the Havens holding beyond its context.” Speaking of the diversion-of-resource injuries claimed by the medical associations, the Supreme Court explained that “an organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action. An organization cannot manufacture its own standing in that way.” Yet this is what Plaintiffs appear to have done here—i.e., manufacture their
own standing.

Continue reading Multiple federal courts toss election challenges for lack of standing, citing FDA v. AHM
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Public Corruption and Presidential Immunity

WaPo:

The Supreme Court decision on former president Donald Trump’s claims of presidential immunity has put new limits on future prosecutors — constraints that legal experts see as the latest and most consequential result of a long-running disagreement between conservative justices and the Justice Department over how to investigate public corruption. . . .

Many legal experts see the historic ruling [in Trump v. United States] as the latest salvo from conservative Supreme Court justices who have long believed that federal prosecutors often go too far in the pursuit of alleged wrongdoing by elected officials. The decision will significantly limit what evidence prosecutors may present in Trump’s D.C. case, and is already prompting new challenges to his felony conviction in New York and his classified documents indictment in Florida. It will probably lead to fresh motions to dismiss or limit the state counts he faces in Georgia for alleged election interference, as well.

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