The U.S. Supreme Court this week turned away a petition by 11 Republican Michigan legislators who sought to overturn expanded voting measures enacted through statewide ballot initiatives, bringing an end to the federal case known as Lindsey v. Whitmer.
The federal case was always a longshot, experts told Votebeat when it was first brought before the Supreme Court, which hears only about 150 of the thousands of requests it gets each year.
The justices denied the lawmakers’ petition without comment.
But their attorney, conservative legal activist Erick Kaardal, told lawmakers that he’s not done trying to challenge the election measures, which include no-reason absentee voting, and straight-party voting, passed as part of 2018’s Proposal 3, as well as early voting and ballot drop boxes from Proposal 2 in 2022.
The Lindsey case was based on a controversial legal interpretation called the Independent State Legislature theory, which suggests that under the U.S. Constitution’s elections clause, only state legislatures — not governors, courts, or voters through ballot initiatives — have the authority to set election laws. …
Category Archives: Supreme Court
Breaking: Trump DOJ Agrees with Republican Party in Supreme Court Filing That Limits on Coordinated Political Party Spending Violate the First Amendment; Court Likely to Take Case and Strike Down Statute
I have been following this NRSC case for a long time, and long predicted a cert grant. After multiple delays, starting when Biden was still president, DOJ has filed its response in the Supreme Court to the Republican Party. In a highly unusual move, the government is not defending the constitutionality of its statute, instead agreeing that the party limits violate the First Amendment and urging a cert grant. DOJ writes:
Petitioners challenge a federal statute, 52 U.S.C. 30116(d), that limits the amount of money that a political party may spend in an election campaign in coordination with a candidate. The government agrees with petitioners that the challenged statute abridges the freedom of speech under this Court’s recent First Amendment and campaign-finance precedents.
This Court should grant the petition for a writ of certiorari to address developments since the Court upheld the statute in FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001) (Colorado II ).
The core function of a political party is to promote its candidates to the electorate. A party performs that function most effectively in cooperation with the candidates themselves. By restricting that cooperation, the party-expenditure limit severely burdens the rights of parties and candidates alike. And the limit is not narrowly tailored to serve the only interest that this Court has held can justify a campaign-finance restriction: preventing the reality or appearance of quid pro quo corruption. See FEC v. Ted Cruz for Senate, 596 U.S. 289, 305 (2022); McCutcheon v. FEC, 572 U.S. 185, 192 (2014) (opinion of Roberts, C.J.).The en banc Sixth Circuit acknowledged the serious constitutional concerns raised by the party-expenditure limit but determined that it was bound by this Court’s decision upholding the limit in Colorado II. As the Sixth Circuit acknowledged, however, this Court’s more recent precedents have superseded key portions of Colorado II’s analysis. For example, Colorado II rests on the premise that Congress may restrict political speech to combat not just quid pro quo corruption, but donor influence more generally—a rationale that this Court rejected in McCutcheon and Cruz. Moreover, Congress has amended the statute in a manner that undermines Colorado II’s rationale for upholding it, and thus that decision is no longer controlling even as to this very statute. Further, the modern dynamics of campaignrelated expenditures have changed greatly in the 24 years since Colorado II, rendering its factual presuppositions obsolete. Multiple judges of the Sixth Circuit encouraged this Court to reconsider the statute’s validity and the ongoing vitality of Colorado II in light of those developments. The Court should take up that invitation.
The Department of Justice has a longstanding policy of defending challenged federal statutes but has determined that this is the rare case that warrants an exception to that general approach. This case involves a campaign-finance restriction that violates core First Amendment rights—a type of restriction that has previously led the government to file a brief expressing skepticism of the constitutionality of a federal statute. See Att’y Gen. & United States Br., Buckley v. Valeo, 424 U.S. 1 (1976) (No. 75-436). This case also involves a precedent of this Court that has been severely undermined, if not superseded, by intervening legal, factual, and statutory developments—but that only this Court can reassess. And this Court’s more recent, controlling campaign-finance precedents raise a clear-cut case against the validity of this speech restriction, which
raises First Amendment concerns of the utmost importance. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (“[T]he constitutional guarantee” of the Free Speech Clause “has its fullest and most urgent application precisely to the conduct of campaigns for political office.”). This Court should grant the petition for a writ of certiorari, appoint an amicus curiae to defend the judgment below, and reverse the judgment.
The Court will almost certainly take this case and agree, overturning these rules. That may even make sense now in light of the prevalance of super PAC spending that has undermined political parties and done nothing to limit (and in fact increased) corruption and inequality.
My New One at Slate: “Two Supreme Court Justices Invited an All-Out Assault on the Voting Rights Act. Now It’s Here.”
I have written this piece at Slate. It begins:
On Wednesday, the Voting Rights Act suffered the second shot in a brutal new one-two punch, and some worry it could lead to a knockout blow at the Supreme Court.
The Trump Department of Justice had already recently ended long-running bipartisan enforcement of Section 2 of the Voting Rights Act, the part of the law that assures fair representation of minority voters in congressional, state, and local redistricting (among other things). Assistant attorney general for the civil rights division Harmeet Dhillon has signaled a pivot away from protecting minority voters and toward chasing phantom claims of voter fraud and pursuing other Trump-driven regressive election changes. These moves had already significantly hampered enforcement of the Voting Rights Act.
Now the U.S. Court of Appeals for the 8th Circuit has, for the second time, held that minority voters do not have the authority to sue states and localities directly themselves for Section 2 violations. It’s a ruling that unless overturned will effectively end Voting Rights Act enforcement in the seven states comprising the 8th Circuit. What’s worse, two Supreme Court justices already expressed agreement with the position of the 8th Circuit. If three more justices agree, Section 2 would be a dead letter throughout the United States, at least during Republican administrations….
Laycock and Hasen, Modern American Remedies (6th Edition): Excerpts on the Debate over Universal Injunctions (at Issue at Supreme Court Thursday)
The Sixth Edition of Laycock & Hasen, Modern American Remedies, will be published next month by Aspen publishers.
In advance of the Supreme Court’s oral argument on May 15 about the propriety of universal injunctions (in the context of the birthright citizenship EO), I am posting here, with Aspen’s permission, the relevant pages of the Laycock & Hasen casebook on the debate over universal injunctions.
“Rule of law is ‘endangered,’ chief justice says”
Josh Gerstein for Politico:
Chief Justice John Roberts described the rule of law as “endangered” and warned against “trashing the justices,” but speaking in Washington Monday he didn’t point fingers directly at President Donald Trump or his allies for publicly excoriating judges who’ve ruled against aspects of Trump’s agenda.
“The notion that rule of law governs is the basic proposition,” Roberts said during an appearance at Georgetown Law. “Certainly as a matter of theory, but also as a matter of practice, we need to stop and reflect every now and then how rare that is, certainly rare throughout history, and rare in the world today.”
As many legal experts express grave concern about Trump’s attacks on law firms and with several federal judges advancing inquiries into whether the administration is refusing to comply with court orders, Roberts took a longer-term view Monday. He blamed schools for shortchanging civics education and leaving students with little understanding of the structure of U.S. government or the role of the courts.
“That’s really too bad,” the chief justice told graduating students at the law school. “We’re developing a situation where a whole group of young people is growing up having no real sense about how our system of justice works.”
Roberts suggested some recent verbal attacks on the justices had gone too far, but he gave no specific examples. “The court has obviously made mistakes throughout its history, and those should be criticized, so long as it is in terms of the decision, really, and not ad hominem against the justices. I just think that doesn’t do any good,” the chief justice said.
Justice Souter, Democracy Champion, Has Passed Away
Justice David Souter passed away yesterday at age 85. He was nominated by a Republican president but skewing liberal in some key areas. He was smart in his questions on the bench and meticulous in his opinion-writing. I did not know him personally, but he exuded a kind of decency and humility which is rare among Supreme Court Justices (and especially compared to some of his fellow Justices).
Justice Souter was a democracy champion, writing key opinions and dissents in major election law caess, including voting rights and campaign finance. Among his most important statements was his dissent in Crawford v. Marion County, a case in which Indiana imposed a voter identification law without any proof anyone ever tried to commit impersonation fraud in the state at any time. Justice Souter also wrote key opinions upholding various campaign finance laws (this was in the period when there was a 5-4 majority agreeing to uphold reasonable campaign finance regulation). Although Justice Souter couched these in the language of corruption, I argued in a law review article that he was a closet egalitarian. That suspicion was borne out years later when we saw some of the internal memos of the Justices, when Justice Souter warned of an emerging plutocracy.
From my Slate piece on those memos:
More than 20 years ago, then–Supreme Court Justice David Souter tried to warn that big money in politics risked turning United States officials into tools of an emerging “plutocracy.” We now know from recently released case files that Souter had to strike the language in his draft Supreme Court opinion in a 2000 campaign finance case, Nixon v. Shrink Missouri Government PAC, as the price to secure Justice Sandra Day O’Connor’s vote. It’s too bad, because Souter’s warning is one that American political leaders, including justices on the Supreme Court itself, needed to hear. That warning was never made and thus never heeded. Today, American plutocracy—from Congress to inside the walls of the court itself—is alive and well.
Justice Souter was one of the most important, if underrated, voices among Supreme Court justices on questions of money in politics. His opinion in Shrink Missouri and similar cases in the early 2000s offered a jurisprudence of the First Amendment that is so different from the current Citizens United–fueled era in which limits on money in politics are mostly meaningless.
In 2008, I wrote about Souter as an emerging egalitarian who, in his judicial opinions, tried to repackage concerns about political inequality into an anticorruption framework so as to stay ostensibly consistent with the court’s earlier Buckley decision. Thanks to the release of some Supreme Court files of the late Justice John Paul Stevens housed at the Library of Congress, we now have confirmation of Souter’s egalitarianism and his attempt to warn the country of the dangers of big money.
At issue in Shrink Missouri was whether Missouri’s campaign contribution limits were set unconstitutionally low, making it impossible for some candidates to raise money for their campaigns. In a 6–3 opinion written by Souter, the court upheld the limits as justified on anticorruption grounds and not a violation of the First Amendment. (It’s a decision that today’s much more antiregulatory Supreme Court has since effectively overruled.)
An early draft of Souter’s majority opinion in Shrink Missouri sought to expand the definition of corruption to include concepts of political equality. After quoting Buckley about the dangers of “improper influence” and “opportunities for abuse” that justified some campaign finance limits, Souter’s Shrink Missouri draft explained that in Buckley the court “made clear that we recognized a concern not confined to bribery of public officials, but extending to the broader threat that politicians grown dependent on large contributions will lose critical independence and instinctively identify interests of a plutocracy with the public good.”
Unfortunately, Souter’s warning of an emerging plutocracy never made it into the final version of Shrink Missouri. O’Connor complained about the line, calling it an “unnecessarily sweeping definition of ‘corruption’ … one which goes beyond Buckley’s concern with quid pro quo corruption and the appearance thereof.” Souter agreed to remove the line, remarking to O’Connor: “You drive a hard bargain.” The new language more meekly described the broader threat of big money as “politicians too compliant with the wishes of large contributors.”
The omission was unfortunate because Souter’s original insight was profound and surely right. When politicians spend all their time around the super wealthy and depend upon their support, they will increasingly identify with their interests and values. And this is as true of Justice Clarence Thomas and his benefactor Harlan Crow as it is all of the presidential candidates who now depend upon megadonors to fund super PACs to support their campaigns.
Condolences to his family and friends, and a loss for all of us.
“Reporting Gerrymanders”
Ross Davies has written this fun article for The Green Bag. Here is the abstract:
Over the past 80 years or so, maps have appeared in many (but not all) of the U.S. Supreme Court’s decisions involving gerrymanders. This papers discusses some of those maps, and also addresses a couple of problems with the way those maps are published (or not published) in the U.S. Reports, in the Supreme Court Reporter, and in online databases of Supreme Court opinions.
There is an accompanying puzzle which is, alas, sold out.
Supreme Court Denies Stay in Ohio Ballot Initiative Case
The shadow docket order in Yost v. Brown is here. The case concerns Ohio AG Yost’s repeated refusal to certify a proposed summary of a proposed constitutional amendment. The district court concluded that the ballot initiative proponents’ First Amendment rights were violated and issued a preliminary injunction, which it stayed pending appellate review. A divided panel of the Sixth Circuit lifted the stay. Justice Kavanaugh initially granted a stay and ordered a response. The Court, however, allowed the district court’s preliminary injunction to stand. Justices Thomas, Alito, and Kavanaugh dissented from the Court’s denial of the stay, but they declined to author opinions.
“In Showdowns With the Courts, Trump Is Increasingly Combative”
Adam Liptak for the NYT:
The Trump administration’s compliance with court orders started with foot-dragging, moved to semantic gymnastics and has now arrived at the cusp of outright defiance.
Large swaths of President Trump’s agenda have been tied up in court, challenged in scores of lawsuits. The administration has frozen money that the courts have ordered it to spend. It has blocked The Associated Press from the White House press pool despite a court order saying that the news organization be allowed to participate. And it ignored a judge’s instruction to return planes carrying Venezuelan immigrants bound for a notorious prison in El Salvador.
But Exhibit A in what legal scholars say is a deeply worrisome and escalating trend is the administration’s combative response to the Supreme Court’s ruling last week in the case of a Salvadoran immigrant. The administration deported the immigrant, Kilmar Armando Abrego Garcia, to El Salvador despite a 2019 ruling from an immigration judge specifically and directly prohibiting that very thing.
Until recently, none of this was in dispute. “The United States acknowledges that Abrego Garcia was subject to a withholding order forbidding his removal to El Salvador, and that the removal to El Salvador was therefore illegal,” the Supreme Court said on Thursday in an unsigned and to all appearances unanimous order.
The justices upheld a part of an order from Judge Paula Xinis of the Federal District Court in Maryland that had required the government to “facilitate” Mr. Abrego Garcia’s return. He had by then been held for almost a month in one of the most squalid and dangerous prisons on earth.
The administration’s response has been to quibble, stall and ignore requests for information from Judge Xinis. In an Oval Office meeting on Monday between Mr. Trump and President Nayib Bukele of El Salvador, both men made plain that they had no intention of returning Mr. Abrego Garcia to the United States.
In remarks in the Oval Office and on television, Stephen Miller, Mr. Trump’s top domestic policy adviser, said the administration’s earlier concessions, made by several officials and in a Supreme Court filing, were themselves mistaken, the work of a rogue lawyer. He added that the Supreme Court had unanimously endorsed the administration’s position that judges may not meddle in foreign policy.
Ed Whelan, a conservative legal commentator, said that was a misreading of the ruling.
“The administration is clearly acting in bad faith,” he said. “The Supreme Court and the district court have properly given it the freedom to select the means by which it will undertake to ensure Abrego Garcia’s return. The administration is abusing that freedom by doing basically nothing.”…
“At the Supreme Court, the Trump Agenda Is Always an ‘Emergency'”
Abbie VanSickle for the NYT:
The Trump administration has in recent weeks asked the Supreme Court to allow it to end birthright citizenship, to freeze more than a billion dollars in foreign aid and to permit the deportation of Venezuelans to a prison in El Salvador without due process.
In each case, the administration told the justices the request was an emergency.
By filing so-called emergency applications, the administration has asked for immediate intervention from the nation’s highest court 10 times so far — more than the total number of such requests during the 16 years of the presidencies of Barack Obama and George W. Bush. Trump administration lawyers have repeatedly told the justices their intercession is necessary to quickly undo the decisions of lower court judges who have imposed temporary pauses on large swaths of President Trump’s agenda.
The Supreme Court has in recent years heard about 60 to 80 traditional “merits” cases each term. These cases often arrive at the court only after months or years of consideration by lower courts. The justices do not issue opinions until after reading extensive briefs, listening to oral arguments and meeting to discuss and exchanging multiple drafts of decisions.
But an emergency application is fast-tracked, with rulings expected within days or weeks of filing after limited briefing and no arguments. Traditionally reserved for clearly urgent matters — most often requests for stays of execution for people sentenced to death — they are now the favored path to challenge so-called nationwide injunctions, where a single federal judge issues a ruling that affects not only the parties to a case but the entire nation…
Sixth Circuit on 2-1 Vote Lifts Stay in Longrunning Dispute over Ohio AG’s Failure to Approve Ballot Language Summary for Petition Circulation; AG Goes to SCOTUS
You can find the Sixth Circuit’s order and dissent at this link.
The AG is already off to SCOTUS.
“A Reprieve for Democracy: Reading Allen v. Milligan on the Sixtieth Anniversary of the Voting Rights Act”
Deuel Ross has written this fascinating article for the Harvard Civil Rights-Civil Liberties Law Review. Here is the abstract:
Voting is an act of faith. Faith that your vote will matter. Faith that your vote will make a difference. Faith in our democracy. In the years surrounding the 1965 passage of the Voting Rights Act (VRA), Black Americans had little reason to have such faith. Our streets and campuses were filled with protests in support of racial justice and opposition to faraway wars. An unpopular president had declined to seek reelection. He was replaced on the ticket by his vice president who went on to face both a “law and order” candidate and a populist promising to make America “stand up” again. All while Black people lagged far behind whites in voter registration, voter turnout, and elected representation in government. In response to the “cries of pain and the hymns and protests” of Black people, Congress enacted the VRA to offer the country a “cause for hope and for faith in our democracy.” As enacted, the VRA contained a “complex scheme of stringent remedies” that included Section 2, which barred racial discrimination in voting nationwide, and Section 5, which required states or other places with a history of discrimination to seek “preclearance” from the federal government before changing any laws or rules related to voting.
The Yale Journal Has Just Published My New Feature Article: “The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law”
I am delighted that the Yale Law Journal has published my new Feature, The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law, 134 Yale L.J. 1673 (2025). I consider this among the most important work I’ve written. For those who may have read an earlier draft, this draft is substantially rewritten, especially Part III, which develops the pro-voter approach more deeply building on the work of Robert Dahl and international human rights law.
Here is the abstract:
This Feature describes the stagnation and retrogression of election-law doctrine, politics, and theory, explains why these trends have emerged, and explores how to transform election law in a pro-voter direction.
It begins by detailing election law’s stagnation. After a short period of strengthening voting rights, courts (and especially the Supreme Court), acting along ideological—and now partisan—lines, have pulled back on voter protections in most areas of election law. Courts have deprived other actors, including Congress, election administrators, and state courts, of the ability to protect voters’ rights more fully. Politically, pro-voter election reform has stalled in a polarized and gridlocked Congress, and the voting wars in the states mean that ease of access to the ballot depends in part on where in the United States one lives. Election-law scholarship also has stagnated, failing to generate meaningful theoretical advances about the field’s key purposes.
The Feature then considers the more recent retrogression of election-law doctrine, politics, and theory to a focus on the very basics of democracy: the requirement of fair vote counts, peaceful transitions of power, and voter access to reliable information. In the aftermath of the 2020 election, liberal and conservative judges rejected illegitimate attempts to overturn Joe Biden’s presidential-election victory. Yet courts’ ability to thwart attempted election subversion remains a question mark in light of the Supreme Court’s recent decisions in Trump v. Anderson and Trump v. United States. Congress came together at the end of 2022 to pass the Electoral Count Reform Act to deter future attempts to manipulate Electoral College rules in order to subvert election results, but future bipartisan action to prevent retrogression seems less likely. Further, because of the collapse of local journalism and the rise of cheap speech, voters are less able to obtain reliable information to make voting decisions consistent with their interests and preferences. Meanwhile, parties have become potential paths for subversion. Party-centered election-law theory, and the First Amendment marketplace-of-ideas thesis, have yet to incorporate these emerging challenges.
Finally, the Feature considers the potential to transform election-law doctrine, politics, and theory to favor voters. Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression, beginning by assuring continued free and fair elections and peaceful transitions of power. More broadly, a pro-voter approach to election law grounded in political equality engages legal doctrine, political action, and election-law scholarship to further five principles: all eligible voters should have the ability to register and vote easily in fair, periodic elections; each voter’s vote should carry equal weight; free speech, a free press, and free expression should assure voters reliable access to accurate information to enhance their capacity for reasoned voting; the winners of fair elections should be recognized and able to take office peacefully; and political power should be fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.
“US Supreme Court turns away casino mogul Wynn’s bid to challenge NY Times v. Sullivan defamation rule”
John Kruzel for Reuters:
The U.S. Supreme Court turned away on Monday a bid by casino mogul Steve Wynn to roll back defamation protections established in its landmark 1964 ruling in the case New York Times v. Sullivan – a standard that has been questioned by President Donald Trump and two of its own conservative justices.
The justices declined to hear an appeal by Wynn, former CEO of Wynn Resorts (WYNN.O), opens new tab, of a decision by Nevada’s top court to dismiss his defamation suit against the Associated Press and one of its journalists under a state law meant to safeguard the U.S. Constitution’s First Amendment protections for freedom of speech.