Category Archives: Supreme Court

“After the Oral Argument in Moore v. Harper”

April 26, 2023, 12:15 pmlegislation and legislatures, Supreme CourtRick Hasen

Michael Weingartner & Carolyn Shapiro have posted this draft on SSRN (forthcoming, U. Toledo L. Rev.). here is the abstract: The debate over the so-called independent state legislature theory (“ISLT”) is evolving. Some proponents of the theory have proposed a… Continue reading

Paul Clement leads cert petition in Mazo v. New Jersey Secretary of State on ballot speech issue

April 26, 2023, 11:50 amballot access, First Amendment theory, Supreme CourtDerek Muller

Late last year here at ELB, I highlighted the Third Circuit’s decision in Mazo v. New Jersey Secretary of State. (Disclosure: I filed an amicus brief in that case.) Check out that post for more on the background. Paul… Continue reading

“Supreme Court to decide if First Amendment stops government officials from blocking social media critics”

April 24, 2023, 7:27 amcheap speech, First Amendment theory, Supreme CourtRick Hasen

Tierney Sneed for CNN: The Supreme Court said Monday that it will consider whether the First Amendment protects social media users from being blocked from commenting on the personal pages that government officials use to communicate actions related to their… Continue reading

Steve Vladeck’s “The Shadow Docket”

April 21, 2023, 7:07 amELB Book Corner, Supreme CourtRick Hasen

I’ve just gotten an advanced copy of Steve Vladeck’s book, The Shadow Docket, out May 16, but you can preorder now. I’ve read the chapter on the Purcell Principle and it is terrific. The emergence of Supreme Court emergency… Continue reading

“The Court Is Likely to Reject the Independent State Legislature Theory; And that offers hope for American democracy”

April 14, 2023, 7:01 amlegislation and legislatures, Supreme CourtRick Hasen

Judge Luttig in The Atlantic.

Justice Thomas addresses ProPublica report on luxury travel gifts

April 7, 2023, 1:14 pmethics investigations, Supreme CourtJustin Levitt

NPR has his full statement: Harlan and Kathy Crow are among our dearest friends, and we have been friends for over twenty-five years. As friends do, we have joined them on a number of family trips during the more… Continue reading

Breaking: DC Circuit Decides Case About “Obstruct[ing]” “Official Proceedings” with Major Implications for Prosecution of January 6 Rioters for Invading U.S. Capitol, and Potentially Trump

April 7, 2023, 9:11 amelection subversion risk, legislation and legislatures, Supreme CourtRick Hasen

A divided three-judge panel of the D.C. Circuit, siding with almost all of the district court decisions considering the question, has held that some of those who invaded the U.S. Capitol on January 6, 2021 could be charged under a… Continue reading

Richard Bernstein: “The U.S. Supreme Court Should Vacate and Remand in Moore v. Harper”

March 23, 2023, 7:58 amlegislation and legislatures, Supreme CourtRick Hasen

The following is a guest post from Richard Bernstein, who wrote this amicus brief in Moore v. Harper but who expresses his own views here: Although I wrote and joined an amici brief supporting affirmance in Moore v. Harper, recent… Continue reading

It appears the Supreme Court will retain jurisdiction over Moore v. Harper, but it’s not a sure thing

March 20, 2023, 3:49 pmSupreme CourtDerek Muller

Earlier this month, I highlighted the confusion around the jurisdictional issue in Moore v. Harper now that the North Carolina Supreme Court granted rehearing in Harper II and is reconsidering the holding in Harper I (i.e., the case the Court… Continue reading

United States Solicitor General, State Respondents in Moore v. Harper Case Suggest Supreme Court Dismiss the Case as Improvidently Granted; Common Cause and Legislative Petitioners Want to Court to Keep Independent State Legislature Case Going [Updated]

March 20, 2023, 10:51 amSupreme CourtRick Hasen

So far, no brief yet from the state legislative respondents. Here are the other briefs: Mar 20 2023Supplemental letter brief of United States submitted.Main DocumentMar 20 2023Supplemental letter brief of Common Cause submitted.Main DocumentMar 20 2023Supplemental… Continue reading

Two federal courts have recently found that states have no sovereign immunity under the Elections Clause

March 9, 2023, 8:01 amElections Clause, Supreme Court, Voting Rights ActDerek Muller

To continue my sovereign immunity discussion from yesterday, a federal court last year found that Congress did not abrogate state sovereign immunity under the Voting Rights Act. Congress must do so with “unmistakable clarity” when enforcing the Reconstruction Amendments,… Continue reading

“Confusion Shrouds High Court Election Case With 2024 on Horizon”

March 7, 2023, 7:15 amlegislation and legislatures, Supreme CourtRick Hasen

Kimberly Strawbridge Robinson for Bloomberg Law: The US Supreme Court’s surprise decision to seek additional briefing in a North Carolina voting case could push an open question on the role of state officials in setting federal election rules into 2024.… Continue reading

“Final judgment,” not mootness, at issue in latest Moore v. Harper twist

March 2, 2023, 2:47 pmElections Clause, Supreme CourtDerek Muller

Rick H. links to the Supreme Court’s order in Moore v. Harper requesting more briefing. According to the Supreme Court’s docket, no party has raised the fact of the rehearing scheduled in the North Carolina Supreme Court, which has… Continue reading

“How a Supreme Court justice’s paragraph put the Voting Rights Act in more danger”

February 26, 2023, 8:23 pmSupreme Court, Voting Rights ActRick Hasen

Hansi Lo Wang for NPR: The roots of the next potential U.S. Supreme Court showdown that could further weaken the Voting Rights Act’s protections against racial discrimination can be traced to a handful of sentences by Justice Neil Gorsuch.… Continue reading

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