Gene Nichol spitting fire in Slate.
Category Archives: election law and constitutional law
“How to Police Gerrymanders? Some Judges Say the Courts Can’t.”
The NYT “teaches the controversy” about policing partisan gerrymandering.
I have to say, I agree with some of the line-drawing concerns when it comes to deciding how much is too much. Which is why I’ve argued for a while that that’s the wrong question.
More Moore
The Court has asked for another round of briefing on what the heck should happen in Moore v. Harper, the current vehicle for the “independent state legislature” challenge, now that the North Carolina Supreme Court has said that the state constitution doesn’t prohibit the legislature from partisan gerrymandering. This’ll be quick: briefs are all due by next Thursday.
The North Carolina Constitution doesn’t really purport to set any other specific criteria for congressional districts (there are still some constraints for state legislative lines), so I’m not sure what relief the legislature would be asking for here. (And as others have noted, the Ohio case is waiting in the wings.)
“The Impermissibility of Sex as a Voter Qualification”
Looks like a fascinating paper posted on SSRN today by UVa 3L Holl Chaisson:
Election officials across the country are turning away voters when they perceive a mismatch between the sex listed on the voter’s identification and the voter’s gender presentation. The problem is particularly acute for transgender and gender-nonconforming voters. This Note presents a 50-state survey of voter ID laws and shows that there is no legal basis for using a mismatch or perceived mismatch between a voter’s documented sex and their gender presentation to deny the franchise. No language in any state statute indicates that an individual’s sex is required as necessary evidence of their identity. Furthermore, this Note argues that changing the statutes to require sex as an identity qualifier would violate the Equal Protection Clause of the Fourteenth Amendment in at least two ways: (1) such a requirement would amount to sex discrimination as that term is best understood in light of Bostock v. Clayton County, Georgia; and (2) under the Supreme Court’s voting rights jurisprudence, such a requirement would constitute an invidious restriction on the right to vote, triggering strict scrutiny under Harper v. Virginia State Board of Elections, and even if it did not amount to such, would still be struck down under the sliding scale scrutiny of Anderson-Burdick. Hinging the right to vote on the verification of one’s sex is almost certainly unconstitutional.
Montana state legislator sues over censure
The lawsuit filed today in state court by Rep. Zephyr – Montana’s first openly transgender lawmaker — and several of her constituents contends that her censure and subsequent barring from Capitol grounds violates the Montana state constitution.
I’m still hoping this isn’t a trend.
“Independent State Legislature” Theory, North Carolina, and Ohio
Vik Amar and Jason Mazzone suggest that the Court grant cert. pronto in Huffman v. Neiman, the Ohio partisan gerrymandering case, as it considers whatever just happened in North Carolina. Rick had similar thoughts.
“A top GOP lawyer wants to crack down on the college vote. States already are.”
Zachary Roth on efforts targeting a younger segment of the electorate.
11th Circuit finds Alabama’s felon disenfranchisement law passes constitutional scrutiny
From an opinion by Judge Tjoflat, joined by Judge Moody (sitting by designation) in Thompson v. Secretary of State for the State of Alabama (lightly edited):
Greater Birmingham Ministries, an Alabamian non-profit organization dedicated to aiding low-income individuals, and several Alabamian felons appeal the District Court for the Middle District of Alabama’s summary judgment denying their Equal Protection Clause, U.S. Const. amend. XIV, § 1, challenge to Amendment 579 of the Alabama state constitution, their Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3, challenge to Amendment 579’s disenfranchisement provisions, and their National Voting Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20501 et seq., challenge to the format of Alabama’s mail voting registration form. Because we hold that (1) Amendment 579 successfully dissipated any taint from the racially discriminatory motives behind the 1901 Alabama constitution; (2) Amendment 579 does not impose punishment for purposes of the Ex Post Facto Clause; and (3) Alabama’s mail voting registration form complies with the NVRA, we affirm.
Judge Rosenbaum concurred in part and dissented in part in a longer opinion, which opens:
Deceiving an elector in preparation of her ballot. Altering another person’s ballot. Failing to count legally cast absentee votes. Illegally voting more than once in an election (second violation). Willfully and intentionally signing the name of another elector in a poll book. Bribery of public servants. And perjury.
Perhaps this recitation sounds like a list of felonies that would disqualify an Alabamian from voting under Amendment 579 to Alabama’s constitution—Alabama’s felon-disenfranchisement provision. Nope. Those convicted of any of these voting-fraud-related felonies are A-okay, good to go when it comes to voting in Alabama. Alabama exempts them from its felon-disenfranchisement provision, Amendment 579. Under that provision, only other felons—those convicted of felony crimes that Alabama says are crimes of “moral turpitude”—can’t vote.
Even worse, in the nearly thirty years since Alabama amended its felon-disenfranchisement provision, Alabama has de-fined the phrase “moral turpitude” in contradictory or non-uni-form ways. At one point, Alabama even allowed each local registrar to interpret the term for herself. In other words, when Alabama precluded those convicted of felony crimes of “moral turpitude” from voting, it may as well have excluded those convicted of “whatever felonies Alabama (or any of its local registrars) at any point in the future might say disqualify a voter,” as Alabama had no definition of the phrase “moral turpitude” in mind.
All of this raises the question: just what was Alabama trying to accomplish with its felon-disenfranchisement provision?
. . .
Indeed, when, as here, the amended law does nothing to advance its stated purpose, it cannot cleanse the taint of its discriminatory origins. For that reason, if I were not bound by our precedent, I would hold that Alabama’s felon-disenfranchisement provision violates the Equal Protection Clause. But since I am bound, I cannot and must instead conclude that, under our case law, the provision does not violate the Equal Protection Clause.
That said, though, Alabama’s felon-disenfranchisement statute and its voter registration form do violate the Ex Post Facto Clause and the National Voter Registration Act, respectively. So I would reverse the district court’s denial of those challenges.
NY trial court finds constitutional right to cast primary write-in for candidate who’s not a member of the party
Friday’s decision is here, with a little more illumination from the earlier hearing transcript here.
“Justice Janet Protasiewicz, Say Hello To Caperton v. Massey”
Josh Blackman predicts (?) a surge of interest in recusal motions from conservative litigants with new appreciation for the perception of corruption in substantial campaign spending on judicial races.
State enforcement of 14th Amd. insurrection clause
Recent judicial developments on the qualifications to run for Congress
It’s been a busy year for the typically-sleepy Qualifications Clause of the Constitution, but a couple of judicial developments are noteworthy.
First, Newsom v. Golden considered the Tennessee Republican Party’s move to boot a candidate who failed to meet the Party’s bylaws–specifically, a requirement that candidates must have voted in 3 of the last 4 statewide Republican primaries or be vouched for as a “bona fide” Republican by the Party. It came on the heels of new state law that adds qualifications to candidates, a direct shot at U.S. Term Limits v. Thornton (but a law that doesn’t apply to this election). And Rick Pildes here at ELB thought more about the Party’s power to exclude candidates, too.
The case has been voluntarily dismissed, but not before a judicial opinion denying the motion for preliminary injunction. There are several legal issues to sort through, but here’s a noteworthy part about the Qualifications Clause (which, frankly, also anticipates the unconstitutionality of Tennessee’s new law):
Continue reading Recent judicial developments on the qualifications to run for CongressBallot access rules for disqualified presidential candidates
Ned’s post on Section 3 of the Fourteenth Amendment walks through challenges pertaining to former president Donald Trump’s eligibility. It’s a sound legal analysis (although I’m sure there are disputes among some as to the facts, and there’s much uncertain about the politics), but I wanted to build on one point he raises: “That way, if Trump is judicially ruled ineligible—becoming constitutionally equivalent to Obama—his name can be kept off the ballots in 2024, and no voter will waste a vote by casting a ballot for a constitutionally ineligible candidate.”
The ballot access rules are a separate and major complication for presidential candidates. Consider the following hurdles.
Let’s start with the presidential primaries, formally the selection of delegates to the national nominating convention. The Democratic Party has rules requiring that candidacy including “requirements set forth by the United States Constitution.” (Rule 13.K.) The Republican Party does not (although no state may bar voting for someone who is constitutionally eligible).
For caucuses, the rules are largely left to state parties to determine candidate eligibility. For primaries, states often defer to party determinations or have no express rules as to candidate qualifications. So it’s entirely possible that an otherwise-ineligible candidate secure a majority of the delegates heading into a nominating convention.
On the other side of the nominating convention are ballot access rules for presidential candidates. Some states will exclude ineligible candidates. Others will not–for instance, I chronicle ballot access for ineligible candidates in recent history, like 27-year-old Peta Lindsay or Nicaraguan national Roger Calero, each of whom appeared on the ballot in some states in recent years. And some states only test presidential candidate eligibility for age, citizenship, and residency–nothing else. I took a look at some such challenges in the 2016 election.
Add to that the complexity of presidential electors (some of whom are statutorily required to vote for the candidate they were pledged to support or who received a plurality of the statewide popular vote, or else they vacate their office). And add to that the challenges of Congress’s power to refuse to count electoral votes, which Ned alludes to (and which no one is excited to re-engage in 2025).
All that is to say, the issues Ned identifies are important qualifiers for disqualifying a presidential candidate. But there 51 separate ballot access rules that need to be navigated to see how it would play out.
There are two important caveats. The first is that the GOP might truncate the process by cutting out a nominee from its primary process. That seems unlikely no matter the circumstances–as a matter of the complexity of how states run their primaries and as a matter of the party apparatus making changes to its internal governance ahead of 2024. The second is that Ned’s proposal certainly could expedite litigation. In the absence of a statute to enforce Section 3, I imagine some will litigate on a state-by-state basis, during the primaries and again during the general election, to exclude Trump from the ballot. A statute would certainly simplify resolution of the matter (and might alter how the party behaves–the same, for instance, as if Barack Obama attempted to seek a third term, to Ned’s analogous disqualification rule).
But litigation, it seems, is inevitable whatever happens, and it’s only a question of how messy it looks.
Political Conduct and the First Amendment
Now that I have finished a draft of a new Article, Political Conduct and the First Amendment, I am eager to join the conversation on the ELB. I couldn’t be more thankful to Rick for including me as part of the team. I am a devout reader of the blog and look forward to broadening the ongoing discussion in the election law community about how to improve both democratic governance and faith in democratic institutions.
In the meanwhile, like many of us, I have been wrestling with how to make sense of the Roberts Court’s indifference to voters and democracy. Political Conduct and the First Amendment is my take on the bigger picture:
Preview: The First Amendment’s primary constitutional role is to defend our nation’s commitment to the collective project of self-governance. Its provisions protect both speech and political conduct toward the end of securing vital channels for influencing public policymaking, demanding responsiveness, and ensuring accountability. Over time, however, the Supreme Court and scholars alike have gravitated to the speech clause, driven by the misconception that democracy is a product of political discussion, rather than political participation. The Court has thus reduced a multifaceted amendment protecting the political process writ large into a singular protection for free expression. The Article explains not only why this is a mistake, but how it negatively impacts our democracy. It proceeds to offer a more nuanced account of the First Amendment’s relationship to self-governance—one that vindicates a construction of the amendment that actually protects democracy in all its facets. The three main pillars of this new account are: protection for political conduct; recognition of a strong anti-entrenchment norm; and a better appreciation of the significance of drawing a distinction between the domain of governance and the domain of politics in First Amendment jurisprudence.