Rick H. linked to the complaint filed in Minnesota challenging Donald Trump’s eligibility. Setting aside the ripeness issues present in this challenge (like so many already filed), I wanted to dig into some of the history in Minnesota. There’s a higher likelihood of getting to the merits, but still some significant barriers.

NYT‘s “The Tilt:”

The early polls show Donald J. Trump and President Biden tied nationwide. Does that mean Mr. Trump has a clear advantage in the battleground states that decide the Electoral College?

It’s a reasonable question, and one I see quite often. In his first two presidential campaigns, Mr. Trump fared far better in the battleground states than he did nationwide, allowing him to win the presidency while losing the national vote in 2016 and nearly doing it again in 2020.

But there’s a case that his Electoral College advantage has faded. In the midterm elections last fall, Democrats fared about the same in the crucial battleground states as they did nationwide. And over the last year, state polls and a compilation of New York Times/Siena College surveys have shown Mr. Biden running as well or better in the battlegrounds as nationwide, with the results by state broadly mirroring the midterms.

The patterns in recent polling and election results are consistent with the trends in national surveys, which suggest that the demographic foundations of Mr. Trump’s Electoral College advantage might be fading. He’s faring unusually well among nonwhite voters, who represent a larger share of the electorate in noncompetitive than competitive states. As a consequence, Mr. Trump’s gains have probably done more to improve his standing in the national vote than in relatively white Northern states likeliest to decide the presidency, like Pennsylvania and Wisconsin….

Hours ago, I was skeptical of the legal claims in Anderson v. Griswold, the Section 3 challenge filed in state court in Colorado. Now I can be skeptical of Donald Trump’s effort to remove the case to federal court.

First, Trump takes advantage of “snap removal,” which allows a party to remove a case to federal court without the consent of all other defendants (here, Colorado Secretary of State Jena Griswold) if those parties have not yet been “served.” Otherwise, if Griswold wanted the case to remain in state court, the case could remain in state court. UPDATE: In a response, plaintiffs dispute that the removal took place before service. So there’s some dispute of timing.

Second, Trump has a viable (but still long shot) basis for asserting jurisdiction under Section 1331. As first-year law students learn, typically a federal court only has jurisdiction if the complaint on its face has a federal “cause of action.” Here, however, there are only state causes of action. But Trump invokes an exception, or briefly summarized as the rare cases where a state cause of action includes a “substantial” federal question. As the Supreme Court has said, “substantial” is a term of art in the courts. “As our past cases show, however, it is not enough that the federal issue be significant to the particular parties in the immediate suit; that will always be true when the state claim ‘necessarily raise[s]’ a disputed federal issue, as Grable separately requires. The substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole.” It’s possible–not a great possibility, but at least a viable one–that Trump fits this rare exception.

Third, however, I think Trump will likely flop what’s been described Professors Zachary Clopton and Alexandra Lahav as “fraudulent removal.” That is, litigants who remove to federal court then immediately move to dismiss for lack of jurisdiction see their cases sent back to state court. Those professors advocate for tools for district courts to discourage or penalize this bad behavior, which can be costly and dilatory.

If Trump, as seems likely, moves to dismiss the case for lack of jurisdiction because voters do not have Article III standing to bring the claim, the case will be sent back to state court. And we’ve seen, and will see, federal courts toss lawsuits for lack of standing if voters bring claims, voters with generalized grievances undifferentiated from the general public.

And if that’s the case, the federal court will likely send the case back to state court. So I think while Trump may temporarily pause the case here in federal court, I don’t think it will stay there very long

Washington Post, January 5, 2016:

“Republicans are going to have to ask themselves the question: ‘Do we want a candidate who could be tied up in court for two years?’ That’d be a big problem,” Trump said when asked about the topic. “It’d be a very precarious one for Republicans because he’d be running and the courts may take a long time to make a decision. You don’t want to be running and have that kind of thing over your head.”

Trump added: “I’d hate to see something like that get in his way. But a lot of people are talking about it and I know that even some states are looking at it very strongly, the fact that he was born in Canada and he has had a double passport.”

CNN, January 6, 2016:

TRUMP: Well, here’s what I think. What I think I do, I’d go and seek a declaratory judgment if I was Ted.

BLITZER: What does that mean?

TRUMP: It means you go to court.

BLITZER: Which court?

TRUMP: You go to federal court to ask for what’s called a declaratory judgment. You go in seeking the decision of the court, without a court case. You go right in. You go before a judge. You do it quickly. It can go quickly, declaratory judgment. It’s very good. I’ve used it on numerous occasions. I’ve been pretty good with it actually.

So when there’s a doubt because there’s a doubt. What Ted doesn’t want to happen is, he doesn’t want to be in there. I mean, I think I’m going to win. I’m leading in every poll by a lot.

But I have a lot of friends in the Republican Party. I have a lot of friends all over the place, all right? If Ted should eke it out and I hope that doesn’t happen, and he’s got this cloud over his head, I don’t think it’s going to be possible for him to do very well. I don’t think it’s actually possible for the Republicans to let it happen because he’ll have this cloud.

So what you do is go in immediately like tomorrow, this afternoon, you go to federal court, you ask for declaratory judgment. That’s — you want the court to rule and once the court rules you have your decision.

BLITZER: But that could take a long time for the court because I don’t think the Supreme Court has never really ruled on what is a natural born citizen.

TRUMP: That’s the problem, is this doubt. People have doubt. Again, this was not my suggestion. I didn’t bring this up. A reporter asked me the question but the Democrats have brought it up and you had somebody, a Congressman say no matter what happens, we’re going to be suing on this matter. That’s a tough matter for Ted.

. . .

Look, with Ted, he should ask for declaratory judgment because that would clear it all out. And I’m doing this for the good of Ted, I’m not doing for (inaudible) because I like him, and he likes me. We have a good relationship.

This would clear it up. You go into court and ask for declaratory judgment. The judge will rule. And once the judge rules that he is OK then the Democrats can’t bring a lawsuit later on.

Consider this language from the Illinois Constitution:

Every United States citizen who has attained the age of 18 or any other voting age required by the United States for voting in State elections and who has been a permanent resident of this State for at least 30 days next preceding any election shall have the right to vote at such election. The General Assembly by law may establish registration requirements and require permanent residence in an election district not to exceed thirty days prior to an election. The General Assembly by law may establish shorter residence requirements for voting for President and Vice-President of the United States.

From the California Constitution:

A United States citizen 18 years of age and resident in this State may vote.

. . .

The Legislature shall prohibit improper practices that affect elections and shall provide for the disqualification of electors while mentally incompetent or serving a state or federal prison term for the conviction of a felony.

And the New York Constitution:

Every citizen shall be entitled to vote at every election for all officers elected by the people and upon all questions submitted to the vote of the people provided that such citizen is eighteen years of age or over and shall have been a resident of this state, and of the county, city, or village for thirty days next preceding an election.

. . .

The legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime.

In Moore v. Harper, the Supreme Court held that the state constitutions can restrain state legislatures when they are exercising authority under the Elections Clause–and the Court often refers to the Presidential Electors Clause, too, even though it was not at issue in the case.

The Court pointed toward a more limited understanding of the context of McPherson v. Blacker (1892): “Our decision in McPherson, however, had nothing to do with any conflict between provisions of the Michigan Constitution and action by the State’s legislature—the issue we confront today. McPherson instead considered whether Michigan’s Legislature itself directly violated the Electors Clause (by taking from the ‘State’ the power to appoint and vesting that power in separate districts), the Fourteenth Amendment (by allowing voters to vote for only one Elector rather than ‘Electors’), and a particular federal statute.”

Now, to the National Popular Vote Compact. The compact requires, “Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a ‘national popular vote total’ for each presidential slate. . . . The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.”

State constitutions often fix voter eligibility, including voter eligibility for federal elections. This is not a problem for congressional elections under the Elections Clause, because separate constitutional clauses say that eligibility to participate in House and Senate elections turns on the ability to participate in state elections for the most numerous chamber of the state legislature–which can be fixed by the state constitution.

For presidential elections, however, the Constitution contains no such clause. It is instead subsumed within the state legislature’s power to “direct” the “manner” of appointing presidential electors.

There was a possible basis before Moore, to the extent one had a robust understanding of the Legislature Thereof Clause of the Presidential Electors Clause, that a state legislature could ignore the state constitution when dictating the rules for presidential elections–including, potentially, voter eligibility. This was never really pressed anywhere, but certainly a possibility.

Now, after Moore, it’s fairly clear that states do not have any such power. And that puts the National Popular Vote Compact in a difficult spot.

The three state constitutional provisions I listed above are just a few of the common ones one might see. Voting is restricted to adults, to citizens, to state residents, to non-felons.

But the “national popular vote” creates difficulties under state constitutions. For one, if a state disenfranchises felons or ex-felons, the state constitution forbids those individuals from voting. A national popular vote total that includes such votes in other states (e.g., Vermont, Maine, District of Columbia) would run afoul of the state constitution. Even more significantly, state constitutions provide that residents are able to vote. The national popular vote total includes millions of non-residents from each state, added to a state’s vote totals.

It does not seem that these state constitutions merely set the floor and permit the legislature by statute to enfranchise more voters, such as those under the age of 18, non-citizens, or non-residents. The precise language may matter (e.g., does the state constitution forbid a class of voters from voting, simply ensure that a set of people are eligible, etc.). But if even one state constitution forbids the state legislature from altering the voting base in presidential elections, the compact might not be able to take effect in that state, and it might then drop the total below whatever threshold would be required for it to take effect.

I’m not sure how this might play out or if there are arguments I’m missing. But at first glance, a pretty robust limitation from the Court of McPherson and the Presidential Electors Clause in Moore v. Harper may add one more complication to the National Popular Vote (and its existing share of legal complications).