Category Archives: electoral college

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

November 22, 2023, 11:25 amelectoral collegeDerek Muller

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… Continue reading

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

November 16, 2023, 7:18 amelection subversion risk, electoral collegeRick Hasen

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… Continue reading

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)

November 8, 2023, 1:48 pmelectoral collegeDerek Muller

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… Continue reading

Commission on Presidential Debates questions: the RNC, Robert F. Kennedy Jr., and the CPD’s future

November 7, 2023, 8:21 amelectoral collegeDerek Muller

The Commission on Presidential Debates essentially took over responsibility for coordinating the major general election presidential debates in every cycle since 1988. There are a few points of intrigue at the moment ahead of the 2024 election. First, the… Continue reading

Colorado trial court botches interpretation of Electoral Count Reform Act in rush to get Trump ballot access case to hearing

October 29, 2023, 3:07 pmelectoral collegeDerek Muller

Back in 2015, I suggested that courts should proceed with “caution” when exercising review over qualifications disputes involving presidential candidates. Other entities are involved in the process, and the state legislature may not have empowered a court or… Continue reading

Does a five-day hearing to adjudicate a presidential candidate’s qualifications pass scrutiny under Anderson-Burdick?

October 19, 2023, 3:03 pmelectoral collegeDerek Muller

The Colorado trial court hearing the challenge to Trump’s qualifications scheduled a five-day hearing to begin October 30 to adjudicate the claim. Does such a hearing pass scrutiny under the Anderson-Burdick balancing test? I’ve been surprised at how little I’ve… Continue reading

Colorado Secretary of State’s brief in Trump disqualification case filled with curious claims

October 9, 2023, 8:19 amelectoral collegeDerek Muller

It’s hard not to read the brief in Colorado and wonder how in the world these claims are going to proceed in a state trial court. Here’s one statement that’s contrary to a hundred years of state practice, and offered… Continue reading

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

September 14, 2023, 6:53 amelectoral collegeDerek Muller

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… Continue reading

“Trump’s Electoral College Edge Seems to Be Fading”

September 12, 2023, 7:29 amelectoral collegeRick Hasen

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… Continue reading

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

September 8, 2023, 6:22 amelectoral collegeDerek Muller

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… Continue reading

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

September 7, 2023, 7:21 amelectoral college, legislation and legislaturesDerek Muller

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… Continue reading

The current waves of Section 3 claims against Donald Trump are likely doomed to fail before they even touch the merits

August 31, 2023, 9:58 amelectoral college, legislation and legislaturesDerek Muller

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… Continue reading

Lost in translation: applying Section 3 to twenty-first century presidential elections

August 22, 2023, 6:23 amelectoral college, legislation and legislaturesDerek Muller

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… 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

August 15, 2023, 11:12 amelectoral college, legislation and legislaturesDerek Muller

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… Continue reading

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The law of politics and the politics of law