In 49 of the 50 states, Neal Katyal is known as a stalwart defender of democracy. And then there’s New Jersey.
In the Garden State, Katyal — the Beltway-famous legal combatant against Trump-era assaults on democratic norms — has thrown himself into a very different legal battle: He’s working to restore a voting rule that enables machine-politics bosses to stack the ballot against anyone they don’t favor. A federal judge last month declared the system unconstitutional for the upcoming primary. Now Katyal’s admirers say they’re enraged by their erstwhile ally’s efforts to snatch away their victory.
“We are all amazed and disappointed and all the related words,” said Yael Niv of the Good Government Coalition of New Jersey. “He’s on the wrong side of history.”…
Democracy advocates have long derided the rule as something out of a banana republic, “an unconstitutional governmental thumb on the scale,” in the words of New Jersey Rep. Andy Kim, the Democratic Senate candidate who filed suit against the “fundamentally unjust and undemocratic” system in February.
When Kim’s lawsuit prevailed on March 29, it represented a political earthquake in the state — and set off impromptu celebrations among activists who’d fought the system for years and couldn’t quite believe they’d won.
But instead of joining the celebrations, Katyal joined the other side, filing an amicus brief last Saturday on behalf of the Middlesex County Democratic Organization, one of the state’s venerable local machines.
Katyal declined comment, saying he was busy preparing for arguments in a gun-control case in San Francisco this week. But his filing does not strike the high notes that might be familiar to those who read his anti-Trump book or watched his successful Supreme Court evisceration of the “independent state legislature” doctrine that could have allowed state legislatures to overturn election results.
Nonetheless, the brief makes a coherent argument for the old status quo: The line system, Katyal writes, “makes voting more efficient by allowing primary voters to easily identify and quickly vote for all candidates belonging to a single political organization or affiliating with a single slogan.” According to the brief, it’s about protecting “low-information” voters: “Only political junkies learn enough about each primary candidate to make an informed choice about who should be their party’s nominee for Surrogate, township council, or County Clerk.”
It’s an argument that draws scoffs from attorneys who fought to kill off the system….
Category Archives: election law biz
“North Carolina election law attorney, nominated 4 times to US District Court judgeship, dies at 69”
Thomas Farr, a longtime North Carolina redistricting and election law attorney who regularly defended Republican interests but whose 2018 federal judgeship nomination was scuttled by two GOP senators, has died, a legal colleague said Tuesday. He was 69.
Farr died on Monday following a series of heart problems, according to Phil Strach, a fellow election law attorney who said he had spoken to Farr’s family about his death. Strach declined to say where Farr died.
“He should be remembered as what I would describe as a legal titan, certainly in North Carolina and, in many respects, nationwide,” Strach said. “You don’t get nominated a federal judge without … a record of legal accomplishments.”
Condolences to his family and friends.
Judge Recommends John Eastman Be Disbarred, and Pay a Sanction of $10,000, for His Conduct Seeking to Subvert the 2020 U.S. Presidential Election
From the 128-page opinion:
As an initial matter, the court rejects Eastman’s contention that this disciplinary proceeding and Eastman’s resultant discipline is motivated by his political views or his representation of President Trump or President Trump’s Campaign. Rather, Eastman’s wrongdoing constitutes exceptionally serious ethical violations warranting severe professional discipline. As stated by Earl C. and others, “there is no right way to do the wrong thing.” As counsel for President Trump during a disputed presidential election, Eastman made multiple patently false and misleading statements in court filings, in public remarks heard by countless Americans and to others regarding the conduct of the 2020 presidential election and Vice President Pence’s authority to refuse to count or delay counting properly certified slates of electoral votes on January 6, 2021. These statements, made with varying degrees of intent, were improperly aimed at casting doubt on the legitimate election results and support for the baseless claim that the presidency was stolen from his client—all while relying on his credentials as an attorney and constitutional scholar to lend credibility to his unfounded claims.
Even after courts in key states authoritatively rejected unsupported allegations of outcome-determinative fraud in the election, Eastman persisted in proposing a legally unsustainable strategy. From November 2020 forward, as his many legal challenges failed, Eastman substantively advanced the false narrative that widespread fraud had tainted the election, and that Vice President Pence possessed the power to contravene the constitutional
electoral process. His demonstrated intent was to foment loss of public confidence in the integrity of the 2020 election and persuade Vice President Pence to refuse to count or delay the counting of electoral votes on January 6. Most of his misconduct occurred squarely within the course and scope of Eastman’s representation of President Trump and culminated with a shared plan to obstruct the lawful function of the government.
While attorneys have a duty to advocate zealously for their clients, they must do so within the bounds of ethical and legal constraints. Eastman’s actions transgressed those ethical limits by advocating, participating in and pursuing a strategy to challenge the results of the 2020 presidential election that lacked evidentiary or legal support. Vigorous advocacy does not absolve Eastman of his professional responsibilities around honesty and upholding the rule of law. While his actions are mitigated by his many years of discipline-free practice, cooperation, and prior good character, his wrongdoing is substantially aggravated by his multiple offenses, lack of candor and indifference. Given the serious and extensive nature of Eastman’s unethical actions, the most severe available professional sanction is warranted to protect the public and preserve the public confidence in the legal system….The scale and egregiousness of Eastman’s unethical actions far surpasses the misconduct at issue in Segretti. Unlike Segretti whose offenses occurred outside his role as an attorney, Eastman’s wrongdoing was committed directly in the course and scope of his representation of
President Trump and the Trump Campaign. This is an important factor, as it constitutes a fundamental breach of an attorney’s core ethical duties. Additionally, while the Segretti court found compelling mitigation based on his expressed remorse and recognition of his wrongdoing, no such mitigating factor is present with Eastman. To the contrary, Eastman has exhibited an unwillingness to acknowledge any ethical lapses regarding his actions, demonstrating an apparent inability to accept responsibility. This lack of remorse and accountability presents a significant risk that Eastman may engage in further unethical conduct, compounding the threat to the public. Given the greater magnitude of Eastman’s transgressions compared to Segretti and the heightened risk of future misconduct from his complete denial of wrongdoing, imposing greater discipline than in Segretti is appropriate to protect the public and uphold public confidence in the legal system. Guided by the standards, case law, and the purposes of attorney discipline, the court recommends that Eastman be disbarred.
Huge Congratulations to ELB Blogger and USC Professor Franita Tolson, Named New Dean at USC Law
Thrilled about this news:
Interim Dean and Professor Franita Tolson has been named the dean and Carl Mason Franklin Chair in Law of the USC Gould School of Law. Tolson is a nationally recognized thought leader and dialogue shaper in election law, voting rights, constitutional law and legal history with research and insights appearing in leading law reviews and major media publications across the country.
“I feel inspired and excited for this opportunity,” Tolson said. “Our law school is a tapestry of talent, and I look forward to working together with the entire Gould Trojan Family to carry on its legacy of innovation and achievement. I’m honored to lead and serve this outstanding, collaborative scholarly community, which I believe is unmatched by any other.”
She becomes the first Black dean and second female dean in the history of USC Gould, which is home to one of the most academically excellent and diverse student bodies of any law school in the nation.
“Meredith Sumpter Named FairVote CEO”
Meredith Sumpter has been named President and CEO of FairVote, a nonpartisan organization seeking better elections for all. Sumpter’s appointment was unanimously approved by the FairVote Board, and she will begin on April 1.
Sumpter is an experienced nonprofit and private-sector leader who most recently served as CEO and President of the Board of both the Council for Inclusive Capitalism and the Coalition for Inclusive Capitalism. She holds advisory positions at New America and Harvard University and has a track record of working on US policy issues at local, state and national levels. Originally from Alaska, Sumpter served as an aide to Sen. Lisa Murkowski early in her career….
New Mark Brown Book on Section 1983 Litigation
“A Legal Outsider, an Offbeat Theory and the Fate of the 2024 Election”
Great Charlie Savage NYT profile of Seth Barrett Tillman, brainchild behind the odd “officer of the United States” argument taking center stage at the Trump disqualification oral argument tomorrow at the Supreme Court.
“Barton Gellman Joins Brennan Center in Fight for American Democracy”
Today journalist Barton Gellman joins the leadership team of the Brennan Center for Justice at NYU Law as Senior Advisor. He will work with the organization’s experts to respond to the threats of abuse of power and the assault on democratic institutions that may follow the presidential election.
Gellman’s article about the weaponization of the Justice Department is the cover story of the current Atlantic. He is stepping down as a staff writer there to join the Brennan Center. A multiple Pulitzer Prize winner, Gellman is the author most recently of Angler: The Cheney Vice Presidency and Dark Mirror: Edward Snowden and the American Surveillance State, both published by Penguin Random House. He is a visiting lecturer at the Princeton School of Public and International Affairs.
Gellman’s prescient 2020 Atlantic cover story issued an early and influential warning of the risks that Donald Trump would seek to stay in power even if he lost. Before The Atlantic, Gellman was a Washington Post reporter. In his 21 years there, he served as a correspondent in the Middle East as well as a diplomatic, legal, and military correspondent. He anchored the team that won a Pulitzer Prize for coverage of the revelations of Edward Snowden. Previously he was awarded Pulitzer Prizes for his reporting on Vice President Cheney and as part of the team covering the aftermath of the 9/11 terrorist attacks. Gellman served as a fellow at the Brennan Center a decade ago.
In his new role at the Brennan Center, Gellman will collaborate with Brennan Center experts on strategy for the pre- and post-election period, including public strategies to anticipate, prevent, and address autocratic initiatives in the next presidential administration. The Center is a leading national voice on democracy issues including election integrity, safeguarding election officials, voting rights, and presidential emergency powers, among other topics….
“Adav Noti Named Executive Director of Campaign Legal Center”
Campaign Legal Center (CLC) is pleased to announce that Senior Vice President and Legal Director Adav Noti has been named the organization’s Executive Director, effective January 1, 2024. In this role, Adav will lead CLC’s programmatic activity and operations as CLC executes a multi-faceted strategy to protect our democracy during a pivotal election year.
The change in management structure allows CLC’s Founder and President Trevor Potter to devote more time to external priorities critical to CLC’s success. Potter remains president of CLC, and Paul Smith continues to serve as CLC’s senior vice president advising on litigation strategy. …
Congratulations!
Jeff Wice: “John Flateau: Election and Redistricting Pioneer Passes”
The following is a remembrance from Jeff Wice:
New York and the nation lost a voting rights pioneer and leader last week. Dr. John L. Flatueau, a professor at CUNY’s Medgar Evers College, passed away suddenly on December 30th. He had a long and distinguished career in New York’s academic, government, and political worlds.
Dr. Flateau chaired CUNY’s Medgar Evers College Public Administration department, directed the Dubois Bunche Center for Public Policy, and served for a period as dean of the college’s School of Business and Office of External Relations
Perhaps most notably, Dr. Flateau was the lead plaintiff in a landmark 1982 federal court case that successfully challenged New York’s delay in redistricting the state legislature. As a result of the 1980 Census, New York State had lost five congressional districts. In Flateau v. Anderson, John and a group of plaitiffs charged that the state legislative lines enacted in the 1970s needed to be redrawn before the 1982 elections (and not six years later, as the then Republican state senate leadership insisted was permissible under state law). In Flateau, the court ordered the state legislature to redraw both the state’s congressional and state legislative district lines in a timely manner in 1982.
Dr. Flateau continued to provide key leadership on census and redistricting issues. He was a member of the New York City Districting Commission in 2002-2003 and then its Executive Director in 2022-2023. Most recently, Flateau was a member of New York State’s Independent Redistricting Commission. He participated in a Commission meeting just last Thursday.
Over his career, Dr. Flateau served in numerous other government positions. Among his roles, he was a member of the New York City Board of Elections, State Senate Deputy Secretary for Intergovernmental Relations, Chief of Staff to Mayor David N. Dinkins, Senior Vice President and Chief Diversity Officer for the NYS Empire State Development Corporation, and Executive Director of the NYS Black and Puerto Rican Legislative Caucus. He was active in local politics and managed several campaigns.
Dr. Flateau was a graduate of New York University (BA) and the CUNY Graduate Center (MA and Phd). John is survived by his wife Lorraine and sons Marcus and Jonathan.
John Flateau was a prolific leader, mentor, and dedicated public servant. His mentorship of so many students and government workers became legend. Dedicated to a complete census count and fair redistricting, John’s imprint on New York will endure. And he will be missed by so many. As a memorial notice by Medgar Evers Colleges read, “May Dr. Flateau forever rest in power.”
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Funeral services will be held at 10:00 AM on Wednesday, January 10th at the Bridge St. AWME Church, 277 Stuyvesant Avenue in Brooklyn, NY.
Eugene Mazo: “Remembering Morris Kramer”
The following is a guest post from Eugene Mazo:
Morris H. Kramer, the plaintiff in Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969), passed away on September 11, 2023. I got to know Kramer toward the end of his life, after writing about the history of his case for Election Law Stories, the book I edited with Josh Douglas in 2016. I’d like to offer readers of the blog a short remembrance.
Kramer’s case challenged a New York law that required citizens in some of the state’s school districts to own or lease taxable real property or have children enrolled in the public schools before they were eligible to vote for their local school board. Kramer failed to satisfy these criteria. He was single, lived in his parents’ home, and had no children.
In Kramer, the Supreme Court held for the first time that a statute granting the right to vote to some citizens while denying it to others had to survive an exacting standard of review. The Supreme Court would henceforth apply strict scrutiny to any laws that discriminated between different classes of voters. While the one person, one vote cases of the early- and mid-1960s halted numerical vote dilution, they offered no guidance on which citizens should be admitted to the franchise in the first place. This was Kramer’s contribution.
Kramer’s case marked the closing chapter of the Warren Court era. Chief Justice Earl Warren handed down his majority opinion in Kramer a week before he retired. When the decision was announced on June 16, 1969, it made the front page of The New York Times.
The case was argued by Osmond Fraenkel of the ACLU, a fact that always displeased Kramer. This was because the ACLU had originally failed to take his case. The ACLU also never invited Murray Miller, the lawyer who handled the case below, to the Court’s oral argument.
In its opinion, the Supreme Court described Kramer as a “31-year-old college-educated stockbroker who lives in his parents’ home,” “has no children,” and “neither owns nor leases taxable real property.” As such, his “attempts to register for and vote in the local school district elections have been unsuccessful.” I taught the casefor years and always had fun with these facts. I’d often ask my students, “So, how many of you still plan to live with your parents when you’re 31 years old?”
After I got to know Kramer better, however, I began to develop a different view of his case. Kramer was a deeply principled person who had been a quiet activist for most of his life. He was intelligent, and he was committed to improving the world. He was well-known on Long Island and in his local community as a “voice of the people.”
Born in the Bronx, Kramer was the youngest of three children. In school, he officially changed his given name, Moses, to Morris, though his friends (and I) always called him Mitty. By coincidence, Kramer’s date of birth—November 6, 1934—happened to be Election Day.
In 1947, Kramer’s parents decided to build a summer home on Long Island and purchased a plot of land in Atlantic Beach, a hamlet just west of Long Beach and east of what is now Kennedy International Airport. The Long Island Herald described it as “a desolate spit of sand jutting out into the Atlantic Ocean, with a patchwork of modest homes, a bar where New York City mafia dons liked to lay low and a post office.”
After completing his Army service in 1956 and finishing his bachelor’s degree at Syracuse in 1958, Kramer moved into his parents’ summer home. It was located at 1632 Park Street, in Atlantic Beach. That was his address when he registered to vote in 1959, when he was denied the right to vote for the school board in 1965, and when he died earlier in 2023. For 65 years, Kramer had lived in the same house.
From Atlantic Beach, Kramer commuted to Manhattan for a few years while he worked in the financial industry. Former solicitor general Rex Lee once called Kramer “the bachelor stockbroker.” But selling stocks constituted a very small part of what Kramer did. He was also a teacher as well as a well-known environmental activist on Long Island. Safeguarding the environment was a goal that was as important to him throughout his life as protecting the right to vote.
Kramer developed strong ties to his community and was part of the fabric of his town for more than sixty years. His urge for belonging is what propelled him to file his lawsuit. What Kramer could not predict, of course, was how his yearning to participate fully in his community would thrust him into the national spotlight. His journey from local activist to Supreme Court plaintiff gave him a voice. In 1992, he ran for Congress. Later, he became a publisher author. And rather late in life, at age 49, he got married. His wife, Ronni Kaman, survives him.
Mitty Kramer was a character. He was warm, curious, and gregarious. He was interested in the world and its affairs. He read The New York Times daily and followed the Supreme Court closely throughout his life. Though not an academic, he was surprisingly knowledgeable about the basics of election law and read the work of several scholars in our field, a fact that always pleasantly surprised me. Every so often, I would get together with him for dinner. The photo below is of us at a Chinese restaurant on Long Island during the summer of 2018.
For me, Kramer’s life served as proof that ordinary Americans are capable of accomplishing extraordinary things. When I taught his case, Kramer would often visit my class. As our discussion of Kramer v. Union Free School District No. 15 wrapped up, I would ask the students if they had ever met the Supreme Court plaintiff, much less one whose case was argued back in 1969. Of course, they hadn’t. Then I would call Kramer from my cell phone and put him on speaker phone.
Kramer was always kind to the students. He patiently answered their questions, offering his New York accent as proof of his authenticity. One time, a student asked him whether he had any parting advice. Kramer thought about it, and finally said, “In life, you will all have ups and downs. During these moments, remember this: The Constitution is your best friend. Hold it near and dear to your heart, and it will guide you.” The students swooned. Some had tears in their eyes.
I called Mitty Kramer as soon as I got back to my office and asked what prompted this sentiment. And he told me that it came from his heart, and that this was how he honestly felt. It was very endearing.
Morris H. Kramer (1934-2023) was born on Election Day in 1934 and died on 9/11 in 2023. He was an American hero.
May his memory be a blessing.
Congratulations to Ian Bassin of Protect Democracy….
for winning a MacArthur Foundation fellowship.
Ian and PD’s work has been absolutely essential in helping to protect threats to U.S. democracy. And I’m so glad to see MacArthur recognized this key intervention.
Very Sad News: Gerry Hebert Has Passed Away
Leading voting rights litigator and champion, and overall mensch, Gerry Hebert has passed away. (I had mentioned on this blog his illness last May and was glad to have had a chance to talk to him and learn how much he appreciated hearing from everyone during his illness.)
Here’s the Campaign Legal Center notice, where Gerry worked after a career that included both the DOJ and his work as a private attorney as “the Bailout King”):
Today, the democracy community lost one of its greatest leaders, J. Gerald (Gerry) Hebert, a fierce defender of voting rights and a titan of election law. Our thoughts today are with Gerry’s wife, Victoria, his children and grandchildren, and the many friends and colleagues who adored him.
Gerry served as the executive director of CLC from 2004-2018, retiring from the organization in 2021. Under his leadership, CLC expanded its litigation practice and grew its staff and resources to increase the organization’s ability to advocate on behalf of voters.
Gerry was deeply committed to mentoring young lawyers. In addition to serving as an adjunct professor of law at Georgetown University Law Center, he built a robust intern program at CLC that continues today. In 2015, Gerry also led CLC in creating the Voting Rights Institute (VRI), a partnership with the American Constitution Society and Georgetown Law. The institute provides opportunities for law students and graduates to learn how to litigate voting rights cases.
Gerry Hebert speaking in front of the U.S. Capitol Building on June 24, 2009.
Gerry’s arrival at CLC in 2004 was preceded by an illustrious career at the U.S. Department of Justice (DOJ), where he served as Acting Chief, Deputy Chief, and Special Litigation Counsel in the Voting Section of the Civil Rights Division. While at the DOJ, Gerry served as the lead attorney in numerous voting rights and redistricting lawsuits, including several cases decided by the U.S. Supreme Court.
CLC is profoundly grateful to Gerry for his service to American democracy, to voters, and to CLC and its mission. His legacy will continue to live on through the many students and colleagues he has trained to fight on behalf of voters.
CLC staff will remember Gerry fondly for his wonderfully unique sense of humor and wit, his enthusiasm for life, his love of the law, his taste in wine, his ability to tell a great story, his musical talent, his dedication to his family, and his lifelong commitment to justice and equality.
2023 Election Law Teacher Database
It is now available here.