Category Archives: electoral college

Linda Jenness, “John Ewards,” and qualifications disputes in Minnesota presidential elections

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.

Continue reading Linda Jenness, “John Ewards,” and qualifications disputes in Minnesota presidential elections
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“Trump’s Electoral College Edge Seems to Be Fading”

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….

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Trump removes Colorado lawsuit over his eligibility to federal court, but it will likely end up back in state court

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

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Anderson v. Griswold, the latest Section 3 challenge to Trump in Colorado, appears unlikely to reach the merits

If my blogging on this topic has a sense of déjà vu, my apologies. But we are in an intractable cycle of litigation on Section 3 that has a low likelihood of going anyplace. I think some cases will get there, eventually, later, with careful and targeted suits.

The latest effort, Anderson v. Griswold, has the backing of Citizens for Responsibility and Ethics in Washington, so it attracts different attention than the pro se claims filed so far. But it suffers many of the same defects.

Continue reading Anderson v. Griswold, the latest Section 3 challenge to Trump in Colorado, appears unlikely to reach the merits
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The current waves of Section 3 claims against Donald Trump are likely doomed to fail before they even touch the merits

Ned and Rick H. have done an impressive job collecting some of the commentary over the last couple of weeks of challenges being filed, or anticipated to be filed, about Donald Trump and his eligibility under Section 3 of the Fourteenth Amendment. Before arriving at the merits of any Section 3 argument, however, there are plenty of hurdles challengers must clear. Right now, those challenges are likely doomed to fail for any number of reasons.

It’s worth opening with a brief observation. Challenges to presidential candidates’ eligibility are not new. There were extensive challenges to Barack Obama and Ted Cruz (among others) in administrative tribunals and courts. Most of these challenges never reached the merits stage of whether the candidate was a “natural born citizen” because they failed to clear some other hurdle.

The bulk of challenges right now are doing exactly the same thing and making the same mistakes, or are on pace to do the same.

Continue reading The current waves of Section 3 claims against Donald Trump are likely doomed to fail before they even touch the merits
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Lost in translation: applying Section 3 to twenty-first century presidential elections

In 1868, when the Fourteenth Amendment (including its Section 3) was adopted, presidential elections looked something like this: Political parties gathered together in a convention to nominate candidates for president and vice president. State parties would then choose presidential electors inclined to support these candidates. The state parties would then print tickets in each states that typically listed these candidates and a list of presidential electors who would support those candidates. (Voters could “scratch” electors names if they did not support the entire ticket.) State election officials would tabulate the votes cast for each elector, and the highest vote-getters (ranging from 3 to 33 electors, depending on the state at that time) would be elected. The electors would meet sometime after election day to vote for president and vice president. Congress would then count the votes and declare a winner.

The only place in this process where an adjudication of a candidate’s eligibility might formally occur would be in Congress (which, in 1868, hadn’t yet ever occurred, even though it had been discussed as early as 1800). (It could also occur in the nominating convention, among voters, and among presidential electors.)

Now, of course, since 1868, much has changed, as I chronicled earlier on the power of states to adjudicate qualifications. Today, states print the ballot and develop rules for who appears on the ballot. Most states administer primary elections for delegates to a convention to choose the party’s nominees. States prohibit “scratches” and require voting for all electors as a bloc in all states. States do not even list the electors on the ballot in most states and instead only list the presidential and vice presidential nominees. States often require electors to pledge to support the ticket, going so far in some states as to replace electors who attempt to vote for someone else.

These developments make the application of Section 3 to contemporary presidential elections (setting aside any of the disputes or discussions about Section 3 itself) something of an issue of translation. The state has much more direct involvement and control over elements of the presidential election–the primary, the general, and the electors. I think that’s permissible under Article II and the Twelfth Amendment. But it doesn’t easily translate to other contexts of the administration of presidential elections, including the application of Section 3.

This isn’t to say it can or cannot be done, or that it should or should not be done. It’s only to say that some of the debates of where we are today are anachronistic. The mechanisms we use today were not available in 1868, and those newer mechanisms create some translation complexities in the present age–for which I offer no easy answers, simply this observation.

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States have the power to judge the qualifications of presidential candidates and exclude ineligible candidates from the ballot, if they want to use it

Rick H. links to a forthcoming article by Professors Michael Stokes Paulsen and Will Baude on Section 3 of the Fourteenth Amendment, and specifically the application of that section to former president Donald Trump. I am sure the paper will generate significant attention, praise, skepticism, and criticism in the weeks ahead.

But I wanted to focus on one small (but important!) piece, the ballot access issue, which I’ve written about extensively over the years–these are my own views that try to synthesize the Constitution’s text and structure with a long liquidated practices of the states. In short, states do hold the power to judge the qualifications of presidential candidates and may exclude ineligible candidates from the ballot. But they need not do so, and it is up to the legislature in each state to decide whether to implement rules to adjudicate qualifications. (And for a refresher of the path that such litigation might take, I recommend my November 2022 blog post on this topic, which has aged, so far, fairly well. And for a more succinct version of this, check out Ned’s important Washington Post piece that went up today.)

Continue reading States have the power to judge the qualifications of presidential candidates and exclude ineligible candidates from the ballot, if they want to use it
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Will Donald Trump follow the legal advice he gave to Ted Cruz in 2016 on litigation challenges to ballot eligibility?

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.

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“Previously Secret Memo Laid Out Strategy for Trump to Overturn Biden’s Win”


A lawyer allied with President Donald J. Trump first laid out a plot to use false slates of electors to subvert the 2020 election in a previously unknown internal campaign memo that prosecutors are portraying as a crucial link in how the Trump team’s efforts evolved into a criminal conspiracy.

The existence of the Dec. 6, 2020, memo came to light in last week’s indictment of Mr. Trump, though its details remained unclear. But a copy obtained by The New York Times shows for the first time that the lawyer, Kenneth Chesebro, acknowledged from the start that he was proposing “a bold, controversial strategy” that the Supreme Court “likely” would reject in the end.

But even if the plan did not ultimately pass legal muster at the highest level, Mr. Chesebro argued that it would achieve two goals. It would focus attention on claims of voter fraud and “buy the Trump campaign more time to win litigation that would deprive Biden of electoral votes and/or add to Trump’s column.”

The memo had been a missing piece in the public record of how Mr. Trump’s allies developed their strategy to overturn Mr. Biden’s victory. In mid-December, the false Trump electors could go through the motions of voting as if they had the authority to do so. Then, on Jan. 6, 2021, Vice President Mike Pence could unilaterally count those slates of votes, rather than the official and certified ones for Joseph R. Biden Jr….

It was not the first time Mr. Chesebro had raised the notion of creating alternate electors. In November, he had suggested doing so in Wisconsin, although for a different reason: to safeguard Mr. Trump’s rights in case he later won a court battle and was declared that state’s certified winner by Jan. 6, as had happened with Hawaii in 1960.

But the indictment portrayed the Dec. 6 memo as a “sharp departure” from that proposal, becoming what prosecutors say was a criminal plot to engineer “a fake controversy that would derail the proper certification of Biden as president-elect.”

“I recognize that what I suggest is a bold, controversial strategy, and that there are many reasons why it might not end up being executed on Jan. 6,” Mr. Chesebro wrote. “But as long as it is one possible option, to preserve it as a possibility it is important that the Trump-Pence electors cast their electoral votes on Dec. 14.”

Three days later, Mr. Chesebro drew up specific instructions to create fraudulent electors in multiple states — in another memo whose existence, along with the one in November, was first reported by The Times last year. The House committee investigating the Jan. 6 riot also cited them in its December report, but it apparently did not learn of the Dec. 6 memo.

“I believe that what can be achieved on Jan. 6 is not simply to keep Biden below 270 electoral votes,” Mr. Chesebro wrote in the newly disclosed memo. “It seems feasible that the vote count can be conducted so that at no point will Trump be behind in the electoral vote count unless and until Biden can obtain a favorable decision from the Supreme Court upholding the Electoral Count Act as constitutional, or otherwise recognizing the power of Congress (and not the president of the Senate) to count the votes.”

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“Scoop: Why Biden’s team soured on Dems’ election lawyer”


The big picture: The split between Biden’s team and Elias — who had represented the DNC since 2009 — reflects a larger fight within the party on the best legal approach to expand and protect voting rules.

  • Elias argues Democrats should be fighting on every possible front — filing a flurry of lawsuits and exerting public pressure through the media.
  • Biden’s team, long guided by lawyer Bob Bauer, is concerned that while Elias’ approach may be emotionally satisfying and make for good headlines, it can backfire with the current conservative makeup of the judiciary.
  • The president’s team wants to be more selective in picking legal fights, especially going into a 2024 election that could be especially litigious.

The intrigue: Beyond the philosophical disagreements, Biden’s team became fed up with Elias during the first two years of the administration.

  • Elias often did not consult the DNC or the White House before filing lawsuits affecting voting rights and election laws in key states and at times disregarded their concerns with cases, Democrats familiar with the internal deliberations said.
  • Biden officials found out Elias had filed some lawsuits only when he announced them — often on MSNBC or Twitter….
  • Zoom in: Bauer and Elias faced off last year during the negotiations on strengthening the Electoral Count Act, the law that Donald Trump tried to get Mike Pence to exploit on Jan. 6, 2021.
  • Bauer had helped craft the bipartisan bill behind the scenes.
  • Elias was openly critical of the proposed bill, writing: “Lacking precision in critical areas, the bill feels less like the product of legislative compromise and more like something constructed in a law school faculty lounge.”
  • Many people involved in the negotiations felt that Elias’ tactics were more grandstanding than constructive.
  • His public critiques frustrated some senators who co-sponsored the bill — including Mark Warner (D-Va.) — given that Elias also serves as their campaign lawyer. Warner’s office declined to comment.
  • “Thank god we got that through, no thanks to Marc,” a Democrat involved in the negotiations told Axios.
  • “Bob Bauer was a constructive and insightful sounding board for the senators as they developed the proposals, while Marc Elias’ contribution was serving as a Twitter troll who tried to undermine the effort at every turn,” said one Senate aide.
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How to slay two electoral dragons

Danielle Allen in WaPo, on gerrymandering and the electoral college: “I’ve been going on for many moons about the need to grow the House of Representatives. But there are still two major arguments left for why this is so important. It turns out that growing the House is the way to address both the increasing illegitimacy of the electoral college and the corrosion to our system caused by gerrymandered political districts.”

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Did Moore v. Harper complicate the National Popular Vote Compact?

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).

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“Helping States Comply with the Electoral Count Reform Act”


In response to the events that unfolded at the Capitol on January 6, 2021, Election Reformers Network was among early voices calling for reform of the Electoral Count Act (ECA), the old and poorly written law used to support dubious legal theories for overturning the presidential election. Shortly thereafter, a bipartisan group of lawmakers set about establishing a new, clearer framework to govern how presidential elections should proceed. That effort culminated in the Electoral Count Reform Act (ECRA), which was signed into law on December 29, 2022, by President Joe Biden.

‍Because of the ECRA’s passage, many states will find that the laws governing their presidential elections now require an update to comply with federal law. Our new report, Helping States Comply with the Electoral Count Reform Actaims to assist policymakers and administrators in navigating these essential changes.‍

Despite its national character, the presidential election is administered state-by-state. States establish their own procedures for how voters cast their ballots, how those ballots are counted and confirmed, how objections to the process may be raised and adjudicated, and how electors are chosen. State law also establishes how those electors meet and cast their votes for President and Vice President. The United States Constitution and federal law place a series of guardrails around these procedures, but states both fill in the gaps and execute the process.

The goal of this study is to address any uncertainties and expedite specific post-election processes so that there is no room for the kind of unfounded arguments and conflicts that occurred in the aftermath of the 2020 election. Election Reformers Network is also in the process of working with lawmakers and coalitions in key individual states to identify areas for improvement in each state’s election code by 2024.

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