Category Archives: electoral college

Fourteenth Amendment federalism over Electoral College federalism in Trump v. Anderson

This sentence, perhaps more than any other, in my judgment, drives the decision in Trump v. Anderson (and the unanimous consensus of the Supreme Court):

Because federal officers “‘owe their existence and functions to the united voice of the whole, not of a portion, of the people,’” powers over their election and qualifications must be specifically “delegated to, rather than reserved by, the States.” U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (1995) (quoting 1 J. Story, Commentaries on the Constitution of the United States §627, p. 435 (3d ed. 1858)).

Continue reading Fourteenth Amendment federalism over Electoral College federalism in Trump v. Anderson
Share this:

“The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act”

The Case Western Reserve Law Review has just published my article, “The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act.” Here is the abstract:

When Congress convenes under the Twelfth Amendment and the votes of presidential electors are counted, there are three different responsibilities to consider. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes?

This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. And that means the chamber—here, the joint session—can constrain the President of the Senate as presiding officer. Congress did exactly that when it chose to further constrain the discretion of the President of the Senate in the Electoral Count Reform Act of 2022. Second, Congress counts electoral votes. The evidence in the text and structure of the Constitution and congressional practice before the ratification of the Twelfth Amendment supports this interpretation. Third, the power to resolve disputes runs with the power to count. And that means Congress also has the power to resolve disputes about presidential electors.

Separating these responsibilities is crucial because it can be too easy to conflate some of these activities, which in turn elides over the distinctions in responsibilities. When the presiding officer acts, she does so not to count votes, but to preside over the joint session and help it proceed according to the rules and precedents set by Congress. The actions she takes may resemble the substantive act of counting. But close scrutiny of the record reflects that the President of the Senate does not count, and has never counted, votes. That is because the power to count resides in Congress, where the Twelfth Amendment lodges that power.

This Essay begins by examining the text of Article II, specifically its Counting Clause. It argues that a change in verb voice in the clause removes the President of the Senate from the role of counting electoral votes. Part II then moves to the original public meaning of the Twelfth Amendment through an interpretation of congressional practices. Majorities of both houses of Congress in 1800 believed Congress had the substantive power to resolve disputes over electoral votes. These details give an important gloss to the Twelfth Amendment, which was ratified in 1804. Part III examines the structure of the Constitution. Crucially, the President of the Senate, not the Vice President, bears the responsibilities in the Twelfth Amendment. While these two terms are often used interchangeably, they are not interchangeable for purposes of understanding the separation of powers and the role of Congress. Part IV concludes with an examination of the newly enacted Electoral Count Reform Act. It identifies the major elements of the Act and it focuses on the Act’s decision to expressly narrow the responsibilities of the President of the Senate in the joint session where Congress counts electoral votes. Congress’s decision to define the role of the presiding officer is squarely within its constitutional authority.

The piece responds to some arguments made by Professors John Yoo and Robert Delahunty in the Case Western Reserve Law Review; and concerns raised by Professors Gary Lawson and Jack Beerman. It engages with recent work by Professor Joel Goldstein, and others. Portions are drawn from blogging here and from my Senate testimony regarding the Electoral Count Reform Act. Professor Jonathan Adler weighs in over at Volokh here.

Share this:

Near-unanimous Wisconsin Senate advances important bill responding to Electoral Count Reform Act

In December 2022, I blogged about how state legislatures needed to take a look at how their existing election codes fit with the Electoral Count Reform Act. In particular, “States should be working backwards from that deadline to determine if their canvass, audit, recount, and contest procedures are able to take place in this tight window.” I tracked some changes in May 2023 as they were pending in states.

Today, the Wisconsin Senate, by a 31-1 vote, passed a major overhaul of how its canvassing, certification, and recount procedures happen, SB 852. Below the jump are the provisions to show how much tighter the process will be–no more languishing recounts or challenges as the state experienced in 2016 and 2020 (if the bill is ultimately signed into law). It’s greatly encouraging to see bipartisan consensus to expedite election procedures in response to the ECRA, especially in a “swing state” like Wisconsin.

Continue reading Near-unanimous Wisconsin Senate advances important bill responding to Electoral Count Reform Act
Share this:

On January 6, 2025

When Congress convenes to count electoral votes on January 6, 2025, it will face intense pressure. If the Supreme Court rejects Colorado’s effort to bar Donald Trump from the primary ballot, its path seems likely to leave the door open for Congress to act, in some fashion at some time. Rick H. has valiantly argued here and elsewhere that courts should foreclose the possibility of future meddling, however they choose to do so; and it’s the gist of the Foley-Ginsberg-Hasen brief in Trump v. Anderson, too.

But. Supposing the Court does not close the door.

Continue reading On January 6, 2025
Share this:

“Here Is One Way to Steal the Presidential Election”

Lessig & Seligman NYT oped:

What happens when you stress-test America’s system for electing a president? How well does it hold up?

After the assault on the nation’s Capitol three years ago, we worked through every strategy we could imagine for subverting the popular will by manipulating the law. What we found surprised us. We determined that the most commonly discussed strategies — such as a state legislature picking a new slate of electors to the Electoral College — wouldn’t work because of impediments built into the Constitution. We also concluded that the most blatantly extreme strategies, such as a state canceling its election and selecting its electors directly, are politically unlikely.

The scenario we see as the most alarming was made possible by the Supreme Court itself. In a 2020 decision, the court held, in our reading, that state legislatures have the power to direct electors on how to cast their electoral votes. And this opens the door to what we think is the most dangerous strategy: that a legislature would pass a law that directs electors to vote for the candidate the legislature picks.

The question now is whether there is any way to close that loophole before a stolen election slides through.

Share this:

“Trump’s campaign guided filing of Michigan’s false electors certificate, emails show”

Craig Mauger for the Detroit News:

Then-President Donald Trump’s campaign directly orchestrated the filing of a certificate, signed by 16 Michigan Republicans, that falsely claimed he won the state’s 2020 election, according to internal campaign emails obtained by The Detroit News.

The documents, which have become part of Attorney General Dana Nessel’s ongoing investigation into the slate of false electors, showed that Trump’s campaign staff helped coordinate the Republicans’ gathering inside state party headquarters on Dec. 14, 2020. Then, Trump’s team prepared the official mailing of the false certificate to Vice President Mike Pence and the National Archives, according to the emails.

Later, when it was unclear whether the Michigan and Wisconsin certificates would make it to Washington, D.C., in time for the counting of electoral votes on Jan. 6, 2021, Trump supporters, along with campaign employees, developed and executed a plan to fly the certificates there themselves.

The apparent objective was to bolster claims that the November 2020 presidential election was “rigged” and ultimately “void the results favoring” Democrat Joe Biden, wrote lawyer Kenneth Chesebro, who helped create the electors plan, in a Jan. 1, 2021, email to Boris Epshteyn, a top Trump adviser….

“Alternatively, if Biden is simply held to under 270 by virtue of electoral votes not being counted (even though ‘appointed’), or by virtue of a switch to legislature-certified electors, then the election gets thrown to the House,” lawyer John Eastman, who was assisting the Trump campaign, wrote in another email on Jan. 1, 2021. “If the Republicans there hold true and vote with their state delegations, Trump should win a bare majority of the states.”…

Share this:

“Exclusive: Recordings describe 2020 Oval Office photo-op where Trump was briefed on fake electors and January 6”

Marshall Cohen at CNN:

Before a group of supportive lawyers entered the Oval Office for a photo-op with then-President Donald Trump in December 2020, they were given a clear instruction, according to one attendee: Don’t get Trump’s hopes up about overturning the election.

One attorney, Jim Troupis, toed the line. He’d just finished leading Trump’s failed election challenge in Wisconsin, and bluntly told the president it was over in that state.

But when the conversation shifted to Arizona, attorney Kenneth Chesebro deviated from the plan. He told Trump he could still win – and explained how the “alternate electors” he helped assemble in Arizona and six other states gave Trump an opening to continue contesting the election until Congress certified the results on January 6, 2021.

Chesebro’s optimistic comments immediately created problems by apparently giving Trump renewed hope that he could still somehow stay in office. Former RNC chairman Reince Priebus left the meeting “extremely concerned” about the January 6 conversation. Priebus, a Wisconsin native who served as Trump’s first chief of staff, later warned Troupis and Chesebro not to tell anyone about what happened.

Share this:

“Trump campaign recognized legal risks of false electors, still went forward”

Craig Mauger in the Detroit News:

Top advisers within Donald Trump’s campaign were aware of concerns in early December 2020 that criminal charges could result from submitting certificates falsely claiming the Republican won battleground states like Michigan that he had actually lost, according to documents obtained by The Detroit News.

The emails and text messages among campaign officials and volunteers showed supporters of Trump’s bid to overturn the 2020 presidential election worked to ease worries about potential prosecution in Pennsylvania and New Mexico. But they declined to act on the concerns in Michigan, Arizona, Georgia, Nevada and Wisconsin, according to the records from a lawyer who aided the Trump campaign.

. . .

“Mike, I think the language at the start of the certificate should be changed in all the states,” Chesebro wrote in a text message to Roman on Dec. 12, 2020, the day of the conference call. “Let’s look at the language carefully.”

“I don’t,” replied Roman, the Trump campaign’s director of election day operations.

“I can help with drafting in a couple hours,” Chesebro then messaged.

Roman responded, “F— these guys.”

Share this:

“Less appetite — and opportunity — to serve as fake Trump electors in 2024”

Excerpt from the Washington Post:

Another force will make it harder for electors to do what Trump’s slates did in 2020: The Electoral Count Reform Act of 2022, bipartisan legislation intended to prevent the chaos surrounding the events of the last presidential election.

Among other provisions, the new law empowers a state executive, typically the governor, to determine which slate of electors — Republican or Democratic — will be counted during the joint session of Congress. No other entity or individual is given the power to do so, and Congress is required to accept that determination, absent a court ruling.

The law also raises the threshold to lodge an objection during the joint session to at least one-fifth of the House of Representatives and the Senate, and makes it harder for state legislatures to disregard the results of the popular vote when determining which candidates’ electors are valid.

Share this:

First Circuit affirms dismissal of Section 3 case against Trump on ground that plaintiff lacked standing

The unanimous opinion in Castro v. Scanlan is here. It’s worth noting the appellate court only reached the standing issue. It did not address the political question doctrine issue, which I noted here that the district court reached. And from the opinion (lightly edited):

. . . we cannot define a “direct and current competitor” in the political context so loosely that a claim of political competitor injury becomes a means by which a federal court entertains a suit based on what is, in effect, a generalized concern that a particular individual is not lawfully entitled to run for office. We must define such a competitor in a manner that ensures that the plaintiff who claims political competitor standing has “[t]he requisite personal interest,” in the determination of the constitutionality of a rival candidate’s eligibility for office in consequence of a “concrete, particularized ‘injury in fact’ over and above the abstract generalized grievance suffered by all citizens . . . who (if [the plaintiff] is right) must live in a State subject to an unconstitutional” electoral process.

. . . no authority of which we are aware — or that Castro has identified — suggests that the mere statement of an intention to seek write-in votes suffices in and of itself to make an individual a “current and direct competitor.”

. . . Thus, because a plaintiff incurs the kind of competitive injury that grounds Castro’s assertion of standing by actually being a putative rival’s competitor for either votes or contributions, we cannot agree that a showing that a plaintiff has taken the steps required to be placed on the ballot in the primary contest at issue necessarily always suffices to show such an injury. Indeed, if the rule were otherwise, then the theory of political competitor standing would seem to offer those invoking it a significant means of effecting an end-run around the usual bar to a federal court’s power to remedy what is in the end merely a generalized grievance. For, under a rule of that sort, plaintiffs would be permitted to secure standing without adequately distinguishing their interest in the legal outcome of the case from that of anyone in the same state who is interested in ensuring legal compliance with that state’s ballot access rules for candidates.

Share this:

“State Implementation of the Electoral Count Reform Act and the Mitigation of Election-Subversion Risk in 2024 and Beyond”

Very important piece from Kate Hamilton in the Yale Law Journal Forum:

The 2020 election and its aftermath were a shocking warning that election subversion poses a threat to the continued health of American democracy. Unlike voter suppression, which is aimed at limiting the ability to vote, election subversion is the manipulation of postelection processes to install candidates who did not win their offices under established election rules.1 Traditionally, the possibility of election subversion seemed remote—even “absurd”2—as it had seldom occurred on even a small scale throughout the nation’s history.3 But former President Donald Trump’s effort to overturn the 2020 election results revealed pressure points and underdeveloped areas of state and federal law. These vulnerabilities nearly enabled partisans to interfere with counting and certifying election results, thereby potentially allowing losing candidates to claim elected office notwithstanding the actual votes cast and counted.4 Baseless legal challenges and fraud allegations, frivolous mass challenges to specific ballots, and threatening conduct toward election officials further empowered partisan interference and sowed distrust in the legitimacy of the election.5

Congress addressed some of these weaknesses by passing the Electoral Count Reform Act (ECRA) in late 2022—a rare act of bipartisanship in the elections context, and a major step toward preventing the type of subversion that was so dramatically on display following the 2020 presidential election.6 The legislation overhauled the archaic Electoral Count Act (ECA) of 1887, which had provided the primary legal framework for casting and counting Electoral College votes in presidential elections for more than a century.

The ECRA has been rightfully celebrated for the changes it makes to the process by which Congress counts electoral votes. But since presidential elections—like all federal elections—are administered by states and localities, any effort to combat election subversion must depend on state law. Despite their primacy in our electoral system, there is, as Miriam Seifter has pointed out, “not much scholarship assessing the role of states in protecting democracy.”7 Nonetheless, as Seifter explains, “state-level interventions provide an important and time-sensitive opportunity to reinforce democracy. Failing to seize the opportunity threatens to accelerate anti-democratic developments.”8

This Essay is the first to focus on one particular urgent state-level intervention: ensuring that state election law complies with the new ECRA.9 While many federal election laws require state cooperation, the ECRA operates, as Cass R. Sunstein has observed, by “mak[ing] state law decisive.”10 Indeed, it is designed to ensure that each state submits a “single, conclusive slate of electors” to Congress by a mandatory, uniform deadline.11 As a result, the new ECRA’s success hinges on states’ ability to select and certify a single slate of electors to Congress by the new deadline—processes entirely dictated by state law.

To establish a roadmap for states updating their election codes ahead of the 2024 presidential election, this Essay proceeds in three parts. First, Part I details how Congress crafted the ECRA to prevent the election subversion that nearly succeeded in 2020, and why the new legislation requires states to bring their own election laws into compliance. Part II identifies one of the ECRA’s most significant changes for state election administration—the replacement of the former “safe-harbor” date with a mandatory deadline—and its consequences for state election procedures. Finally, Part III offers urgent prescriptive suggestions for states to meet the new deadline as they enter their final legislative sessions before the 2024 presidential elections.

To be sure, there are myriad ways in which states can and should shore up their election codes to mitigate election-subversion risks. Among other interventions, they should limit frivolous challenges to voter eligibility, disallow partisan audits, and develop contingency plans for election emergencies. But while such changes can be contentious and fiercely partisan,12 the ECRA’s overwhelming bipartisan support13 makes its implementation a natural and urgent starting point for states as they endeavor to safeguard the nonpartisan election administration that was for so long taken for granted in the United States.14

Share this:

BREAKING: Minnesota Supreme Court unanimously dismisses Section 3 claim against Trump, permits him to appear on the primary ballot (but issues no decision on general election)

The Minnesota Supreme Court’s order is here. (Disclosure: I filed an amicus brief in support of neither party in the case.) Two justices recused (without explanation, but presumably due to conflicts from legal representation in their election campaigns). From the order:

We conclude that petitioners have standing and that their claims are ripe as to the issue of whether former President Trump should be excluded from the 2024 Republican presidential nomination primary. We reach a different conclusion regarding petitioners’ claim that it would be error for the Secretary of State to place former President Trump’s name on the ballot for the 2024 general election ballot. That claim is neither ripe, nor is it “about to occur” as section 204B.44(a) requires.

With respect to the only ripe issue before us at this time, we conclude that under section 204B.44, there is no “error” to correct here as to the presidential primary election if former President Trump’s name is included on the presidential primary ballot after the Chair of the Republican Party of Minnesota provides his name to the Secretary of State, notwithstanding petitioners’ claim that former President Trump is disqualified from holding office under Section 3 of the Fourteenth Amendment. . . . [A]lthough the Secretary of State and other election officials administer the mechanics of the election, this is an internal party election to serve internal party purposes, and winning the presidential nomination primary does not place the person on the general election ballot as a candidate for President of the United States. As we explained in De La Fuente, in upholding the constitutionality of this statutory scheme for the presidential nomination primary, “[t]he road for any candidate’s access to the ballot for Minnesota’s presidential nomination primary runs only through the participating political parties, who alone determine which candidates will be on the party’s ballot.” 940 N.W.2d at 494–95. And there is no state statute that prohibits a major political party from placing on the presidential nomination primary ballot, or sending delegates to the national convention supporting, a candidate who is ineligible to hold office.

Earlier this week, I noted the Supreme Court would not review the case if it was decided on a state law basis–which is the case here. The case won’t go to the United States Supreme Court (barring a novel theory of inherent Secretary of State power).

A downside to this opinion, of course, is that it expressly reserves the question for the general election, kicking the can down the road.

Share this: