Category Archives: ballot access

New Jersey: “Attorney General says organization lines are unconstitutional”

New Jersey Globe:

Attorney General Matt Platkin has told a federal judge that New Jersey’s county organization line is unconstitutional, and he is not prepared to defend it in court, the New Jersey Globe has confirmed.

Platkin sent a letter to U.S. District Court Judge Zahid Quraishi saying his office will not intervene in a lawsuit filed by Rep. Andy Kim (D-Moorestown).

“The attorney general will not otherwise provide a defense of the challenged statutes on the merits in that case,” the attorney general’s office told Quraishi.

“A central reason for the attorney general’s defense of state statutes is to implement the will of the democratic process that enacted them, but as explained above, subsequent court decisions and practices on the ground have overtaken the Legislature’s original intent in enacting the challenged state statutes,” the AG’s office said.  “The traditional need for the Attorney General to defend the results of the democratic process does not apply neatly to a case where the plaintiffs produced substantial record evidence to challenge the statutes as undermining the democratic process.”

In his brief, the AG’s office said that “New Jersey stands alone across the nation in the use of bracketing for primary-election machine ballots, which further undermines the claim that these laws are necessary to advance the government interests on which the attorney general would have relied.”

“No official that the attorney general represents in court implements these laws, so there is no risk that any state agencies would simultaneously be enforcing but declining to defend a particular statute,” the AG’s office said. “This court has made clear in its prior decisions that the constitutional question at issue turns on the evidence. The attorney general has concluded that the evidence presented does not support a defense of the constitutionality of these statutes.”

His move does not necessarily mean that Quraishi will abolish the line system, but it could give the judge plenty of cover if he does.

Ending the line comes at a terrible time for Tammy Murphy, who is depending on organization endorsements from large Democratic counties, including Bergen, Essex, Camden, Middlesex, and Hudson, to defeat Kim in the Democratic U.S. Senate primary….

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“No Labels Considering Georgia Republican Geoff Duncan to Lead ‘Unity’ Presidential Ticket”

WSJ:

The centrist group No Labels is considering picking Geoff Duncan, the Republican former lieutenant governor of Georgia, to lead a “unity” presidential ticket, people familiar with the discussions said.

The group’s delegates voted Friday to press forward with its efforts to field an independent presidential ticket, based on the idea that voters want an alternative to President Biden and former President Donald Trump, but didn’t name any candidates.  

Some prominent politicians who had been on the group’s radar—including Republicans Nikki Haley and Larry Hogan and Democrat Joe Manchin—have ruled out making presidential bids. If No Labels can’t succeed in recruiting sufficiently high-profile candidates, that could drain enthusiasm among delegates for moving forward with an independent ticket, according to people familiar with its discussions. 

Duncan didn’t immediately respond to a call for comment Friday.

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“Third-party group No Labels is expected to move forward with a 2024 campaign, AP sources say”

AP:

The third-party presidential movement No Labels is planning to move toward fielding a presidential candidate in the November election, even as high-profile contenders for the ticket have decided not to run, two people familiar with the matter said Wednesday.

After months of leaving open whether the group would offer a ticket, No Labels delegates are expected to vote Friday in favor of launching a presidential campaign for this fall’s election, according to the people familiar with the matter, who spoke on condition of anonymity to discuss the group’s internal deliberations.

No Labels will not name its presidential and vice presidential picks on Friday, when roughly 800 delegates meet virtually in a private meeting. The group is instead expected to debut a formal selection process late next week for potential candidates who would be selected in the coming weeks, the people said.

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“Waiting on Supreme Court, States Go It Alone in Trump Ballot Cases”

NYT:

When the U.S. Supreme Court agreed in January to hear an appeal of a Colorado ruling that disqualified former President Donald J. Trump from that state’s primary ballot, many thought the court would soon resolve the issue for the entire country.

That sense only grew after oral arguments in early February, when justices across the ideological spectrum appeared skeptical of the reasoning used to disqualify Mr. Trump.

But three weeks have passed, Mr. Trump has solidified his lead in the race for the Republican presidential nomination and, with Super Tuesday looming, there remains no nationally binding answer to questions that strike at the heart of American democracy: Did a major political party’s likely nominee participate in insurrection? If he did, does that disqualify him from running for president?

The uncertainty from the Supreme Court has left states to go it alone, with divergent results that have left some voters confused. On Wednesday in Illinois, a Democratic state judge disqualified Mr. Trump from the state’s primary ballot, a decision that she stayed until Friday to give Mr. Trump time to appeal. By Thursday morning, Republicans were calling the clerk’s office in McLean County, in central Illinois, unsure of what it all might mean for them. After all, early balloting in the March primary was already underway….

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New Jersey: “Andy Kim Sues to Block Preferential Treatment on Ballots in Senate Race”

NYT:

Representative Andy Kim, a Democrat running for Senate in New Jersey against the state’s first lady, filed a federal lawsuit on Monday that seeks to redesign the ballot before June’s contentious primary election, arguing the current layout unfairly benefits candidates supported by party leaders.

The complaint aims to topple New Jersey’s longstanding ballot-design process, which is unique to the state, by asserting it violates the constitution and permits voters to be “cynically manipulated.”

The legal maneuver is a direct attack on the governor’s wife, Tammy Murphy, who is Mr. Kim’s chief opponent in the Democratic primary and is likely to benefit most from the way ballots have traditionally been designed in 19 of the state’s 21 counties.

And it is certain to intensify public debate over the use of “the line,” the preferential ballot position that allows party leaders to bracket their preferred candidates for all races in a prominent column or row. Unendorsed candidates appear off to the side, in a nearby row or at the ballot’s edge, a location commonly referred to as “ballot Siberia.”

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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
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“The Case for Removing Trump From the Ballot Has a Fatal Originalist Flaw”

Brook Thomas in Slate:

Oral arguments in the Supreme Court for Donald Trump v. Norma Anderson last week exposed a historical issue that none of the excellent amicus briefs by historians anticipated. Briefs led by Jill Lepore and Vernon Burton convincingly show that the framers of Section 3 of the 14th Amendment would have intended to make Donald Trump ineligible for the office of president. But the Colorado case is about eligibility for the ballot, not for office. The framers of Section 3 would not have considered that question because in 1866, ballots as we know them today did not exist.

That historical anomaly will make it easy for the Supreme Court to rule against Colorado. But if it does, it will punt on the more important question of Trump’s eligibility for office.

Understanding the full history here is critical. Official ballots printed by each state, listing the names of all candidates qualified to run, came into existence only with the adoption of the secret ballot later in the 19th century. Prior to that time, no one had to qualify to appear on a ballot. Political parties, not states, printed them with only their candidates’ names. Party officials gave them to voters, who placed them in a ballot box. If voters wanted, they could create their own ballot and write in any candidate they preferred. State officials then tallied the ballots. The votes for people ineligible for office were simply not tallied. Those who felt that their votes had been incorrectly thrown out by local officials had to appeal to state officials or the courts….

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Trump v. Anderson v. Celebrezze

Professor Marty Lederman has significantly expanded his analysis of the Anderson v. Celebrezze issue in Trump v. Anderson over at Balkinization, here. As ELB readers may recall, I flagged the Anderson issue back in October, and my briefing in this case has offered some hesitant suggestions to think about the framing (without coming down on one side or another). Professor Lederman offers a much more fulsome defense of this legal hook as the best way to decide the case, which results in reversal of the Colorado Supreme Court. (Indeed, at oral argument yesterday, Justice Kagan read from Anderson v. Celebrezze on the bench.) He points to the burdens on Colorado’s voters, and on the state and national parties, for the removal of a candidate’s name from the ballot. That is in stark contrast, he notes, to candidates who are indisputably ineligible.

He also makes this point on the Colorado Secretary of State’s justifications of the state’s interest:

Colorado Secretary of State Griswold, in her brief, flags two additional possible state objectives.  First, she writes (p.26) that an exclusion of Trump from the ballot “ensures voters are not disenfranchised by voting for candidates who are ineligible for office,” which “allows voters to accurately weigh their choices before casting a vote.”  This rationale is problematic for at least three reasons.  First, it’s not a justification that the decision-maker, the Colorado Supreme Court, relied upon.  Second, it assumes that Trump is ineligible just because the Colorado Supreme Court decided that he is—which presumes the answer to the question that other actors would have to eventually determine if Trump were to actually be prevented from taking the oath of office.  Third, if the state were worried that its voters will be ignorant of the mere possibility that other actors will (as Colorado cannot) prevent Trump from taking office or will remove him from office, it can address that problem by educating voters about the possibility rather than by paternalistically preventing them from choosing to vote for Trump with full knowledge of the risks.

Secretary Griswold also writes (id.) that “perhaps most importantly,” such a ballot exclusion “avoids the turmoil of an ineligible candidate winning an election for an office that the candidate is constitutionally barred from holding.”  Again, this isn’t a justification that the Colorado Supreme Court relied upon.  Moreover, it’s hard to see how Trump’s exclusion from the ballot would serve to “avoid” any turmoil of the sort Griswold describes, because the Republican Party will nominate Trump anyway, and because whether he’s prevented from entering office will depend on the decisions of others (voters, electors, Congress, etc.)—in other words, Colorado’s actions here won’t do much to affect that prospect, whereas they will cause serious harms to the fundamental constitutional rights of Trump supporters and the Republican Party (and possibly cause turmoil of its own making, as well).

The Court seemed to be grappling with these concepts, and in particular the second point to the first point raised here: that is, “it assumes that Trump is ineligible just because the Colorado Supreme Court decided that he is—which presumes the answer to the question that other actors would have to eventually determine if Trump were to actually be prevented from taking the oath of office.” The Secretary tended to frame the question as to whether the state has the power to exclude an insurrectionist from the ballot; but the better framing is whether the state has the power to ascertain whether the candidate is an insurrectionist, and, if so, keep the candidate off the ballot. Relatedly, the statements at oral argument that federalism “messiness” (probably one of the worst words the Secretary could have used at oral argument) means that states can continue to do their own things until some other federal actor steps in–or until the Supreme Court is asked to, and tasked with, resolving factual and legal disputes among states, suggests the state interest in being the first mover is much lower than in other cases (e.g., undisputed eligibility).

The whole post is worth reading after yesterday’s argument, and it’s another reminder that this case might look quite different if litigated through an election law lens than the Section 3 framing it’s received for months.

One more wrinkle, and this was an argument floated repeatedly by Justice Barrett at oral argument that Professor Lederman sharply notes:

It’s entirely possible, I suppose, that the Court might announce a broader, structural “federalism” limitation on the power of states to use their ballot regulations to exclude some or all federal candidates on eligibility grounds (or perhaps only on Section 3 grounds?), and in so doing invoke Anderson v. Celebrezze and other election law cases without necessarily framing the decision specifically in First Amendment/voting rights terms.  Justice Barrett, in particular, hinted at such federalism constraints by invoking analogies to M’Clung v. Silliman (1821) (state courts can’t issue writs of mandamus against federal officials) and Tarble’s Case (1871) (a state judge lacks jurisdiction to issue a writ of habeas corpus for the discharge of a person held by a federal official).  As I wrote in this post, citing M’Clung, it’s common ground that a state lacks legal authority to actually enjoin a disqualified federal official from holding office, or to remove him or her from such office; that a state court couldn’t issue an injunction to prohibit someone from taking federal office or to order that person to vacate the office (or order another federal actor to remove the allegedly ineligible person); and that state police can’t arrest someone purporting to hold a federal office (e.g., a Senator, a Representative in the House, a civil or military officer in the federal executive branch, a federal judge, or … a President or Vice-President) on the ground that the state has determined that that person is acting in derogation of Section 3 or some other constitutional limitation.  The Court might conceivably hold that a state also can’t accomplish similar results by indirection by the simple expedient of excluding a potential federal officer from a ballot for a federal election.

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“Democrats sound alarm, take action against Biden’s third-party threats”

WaPo:

Democratic alarm over third-party challengers spoiling President Biden’s reelection has been growing in recent weeks, prompting a new push both inside the party and among allied outside groups to step up their efforts fighting back.

The Democratic National Committee hired a new communications adviser last month to counter the third-party candidates, while outside groups working for Biden’s election have been having discussions about a new organization that could coordinate about the wide range of threats.

A recent five-way national poll by Quinnipiac University that named Biden, former president Donald Trump, attorney Robert F. Kennedy Jr., scholar Cornel West and activist Jill Stein showed the combined third-party candidates drawing nearly 1 in 5 voters. A separate effort, by the bipartisan group No Labels, continues to move forward in its search for candidates that could challenge the major-party duopoly.

That polling, combined with increased activism on the left in reaction to Israel’s war in Gaza, has provided a boost to outsiders who are traveling the country in an uphill battle to gain ballot access. Kennedy is seeking to establish a new We the People party with candidates who can run downballot of him in some states, while West has launched a less-well-funded effort to create the Justice for All party, and Stein has sought to expand the reach of the Green Party.

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Rick Hasen Live Blog of Oral Arguments in Trump Disqualification Case at Supreme Court (Updates Complete)

[This live blog is concluded. Stand by for thoughts on the argument.]

Today the Supreme Court hears oral argument in Trump v. Anderson. The first thing I’ll be listening for is whether Trump’s lawyer gets any traction with the hyper-technical argument that the president is not an “officer of the United States,” which if successful would render Trump not subject to disqualification under Section 3 of the 14th Amendment. I explained here and here why the argument appears weak, but Trump has put most of his briefing into this argument.

Everyone I know expects Trump to win because it would be politically monumental for the Court to remove a major, popular candidate, but seeing the doctrinal way to get there is hard.

It’s going to be a long argument—expect it to be over two hours and perhaps as long as three hours.

Arguments should start momentarily, and Trump’s lawyer Jonathan Mitchell will be up first.

Here are arguments:

Continue reading Rick Hasen Live Blog of Oral Arguments in Trump Disqualification Case at Supreme Court (Updates Complete)
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My New one at Slate: “Donald Trump Is Asking the Supreme Court for the Bush v. Gore Treatment”

I have written this article for Slate. It begins:

The Supreme Court will soon be under the microscope like it hasn’t been since it ended the disputed 2000 U.S. presidential election in Bush v. Gore, as it considers not one but now two major cases that each could strongly influence whether Donald Trump will become president again. One of the major criticisms from the left of the court’s opinion in Bush was that it was a “one day only” ticket to hand George W. Bush the presidency without establishing a legal precedent to apply to other cases. And yet Trump is making similar arguments in both of his cases coming before the court, arguing for a kind of exceptionalism that would help Trump, and only Trump, regain power and stay out of jail. If the court cares about its legitimacy and its sagging public opinion, it should not embrace Trump exceptionalism no matter how it otherwise decides these cases….

Just about everyone who wishes to run for president has served in an earlier office and taken an oath to support the Constitution. Joe Biden, for example, was a senator, among other things, before becoming president. In his reply brief, Trump admits he is arguing for an exception that likely would apply only to Trump and to no one else: “Each of our 46 presidents, except George Washington and Donald Trump, would be covered by section 3 because they held a previous job listed in the amendment.” In other words, if the court accepts Trump’s primary argument, it won’t affect the meaning of Section 3 for any candidates running for president except as to Donald Trump.

Trump has made similar exceptionalist argument in the criminal case for election subversion filed by special counsel Jack Smith in federal district court in D.C. That case was supposed to go to trial in early March, but Trump took a special appeal to the United States Court of Appeals for the D.C. Circuit, putting trial preparations on hold. Trump is arguing that he is immune from criminal prosecution for any official act he did as president and that his attempted election subversion was an official act….

Whatever the court does, it needs to be guided by the principle that like cases should be treated alike, and no person is above the law. The surest way for the court to lose more respect in the public’s eye is if it creates a rule that helps Donald Trump and only Donald Trump.

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Some thoughts on state power to conduct presidential primaries (and why the Moore v. Harper claim may really be legally meritless)

On the heels of some arguments raised by Marty Lederman and challenged by Richard Bernstein, I wanted to weigh in on Professor Lederman’s side–and in doing so, turn to agree with Mr. Bernstein’s sharp observation the Moore v. Harper issue of the Legislature Thereof Clause is likely legally meritless and shouldn’t receive any real attention from the Supreme Court.

Continue reading Some thoughts on state power to conduct presidential primaries (and why the Moore v. Harper claim may really be legally meritless)
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Did the Colorado Secretary of State help revitalize the Moore v. Harper issue ahead of the Trump v. Anderson oral argument?

In my recent rundown of arguments raised in Trump v. Anderson, I noted that the Legislature Thereof Clause argument–that the state court in Colorado botched the interpretation of state law so badly that it mangled the legislature’s preferences (an open suggestion after Moore v. Harper)–seemed the least likely ground for the Supreme Court’s consideration. I noted Trump’s brief is internally inconsistent on this point: while Part V of Trump’s brief is dedicated to the Legislature Thereof Clause, footnote 2 argues, “A ruling that reverses the Colorado Supreme Court while remaining agnostic on President Trump’s eligibility under section 3 will only delay the ballot-disqualification fight, and there is no shortage of legislators determined to use section 3 as a cudgel to bar President Trump from the general-election ballot or from taking office if this Court leaves any wiggle room for them to do so.” (If that’s the strategy, it’s not clear why Trump even included Part V in his brief.)

But the Colorado Secretary of State may have helped revitalize the issue. In a motion for divided oral argument, the Secretary argued, “Among the issues Petitioner Trump presents in his brief are (1) whether Section 3 of the 14th Amendment precludes Colorado from excluding unqualified candidates from its presidential primary ballot and (2) whether the Colorado Supreme Court violated the Electors Clause, and (3) whether this Court should defer to the Colorado Supreme Court’s interpretation of Colorado’s Election Code. These issues implicate Colorado’s—and indeed many states’—specific state law procedures for determining a presidential candidate’s eligibility to be placed on the state’s presidential primary ballot.”

The Supreme Court granted the motion to enlarge and divide oral argument. In my judgment, this is likely good news for Trump.

First, the Secretary specifically wants to focus on (1), about this election law-related component of the proceedings. That, as I mentioned in my recent rundown, is likely Trump’s best chance of success (a prediction sure to be go wrong, of course!).

Second, the Secretary specifically wants to focus on (2) and (3), the issues after Moore v. Harper about when state courts go “too far” construing state law. I thought this would be a poor ground for reversal, but now the Secretary is specifically asking for extra time to address the issue, and the Court has agreed. It sets up one of the best opportunities to expand the scope of what the Court meant in Part V of Moore v. Harper (to the chagrin of many amici).

Continue reading Did the Colorado Secretary of State help revitalize the Moore v. Harper issue ahead of the Trump v. Anderson oral argument?
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