Category Archives: election law and constitutional law

NC elections, due process, and a friendly (?) amendment

absentee ballots, chicanery, election law and constitutional law, election subversion risk, voter registration

Hi. Justin here. Rick Pildes just posted here about the significant federal due process problems with Friday’s state appellate opinion on the North Carolina state supreme court race.

I’ll go further: I think that the appellate decision raises a number of additional federal issues, all stemming from the fact that the only ballots challenged were early or mail ballots, despite the fact that the principal challenge (60,273 out of the 61,949 challenged ballots) has nothing to do with any invalidity in the method of voting. Instead, the challenges are based on allegedly missing voter registration data (more on that in a sec) also likely missing from unchallenged voters who went to the polls on election day. Because for purposes of whether their registrations are valid or invalid, the challenged voters and unchallenged voters are similarly situated, I don’t know why this isn’t an equal protection concern and a problem under 52 U.S.C. 10101(a)(2)(A). (There are other problems beyond these, as well – I don’t mean to be listing them all.)

But I agree with Rick that the federal due process problems are unmistakably front and center. Indeed, I think it may be even worse than he suggests.

Much of the reporting that has ventured into the weeds of these allegations says that the 60,273 challenged ballots were cast by voters who didn’t provide their driver’s license number or social security digits when registering. As Rick P. points out, that’s in part because the state registration form in the relevant period didn’t ask the voters for that info. Voters did what they were told to do, were told they were registered, and some had been voting for years. (There’s no indication anywhere in the case that any of these 60,273 voters are substantively ineligible under NC’s constitution.)

But there’s a further problem: in a passage wholly unrebutted by the majority, the dissenting opinion says that the description above just isn’t true. It’s not that 60,273 challenged ballots were cast by voters who didn’t provide their driver’s license or social security digits when registering. It’s that 60,273 challenged ballots don’t have those digits listed in the state database. Those things are NOT the same.

The dissent notes that, among other reasons, digits that are supplied but not matched to other systems aren’t kept in the state database. There are many reasons why the numbers for eligible voters may not match up, including typos by temps doing data entry, and discrepancies in how different databases store naming patterns. (All of these voters must show documentation of their identity before they vote for the first time, pursuant to both state law and HAVA.)

Put differently: some portion of these voters now presumptively disenfranchised by the appellate court’s opinion likely complied perfectly with state law. Judge Griffin apparently produced no evidence about how many voters are in this category, and how many are in the category Rick notes, in which the failure was the state’s fault and the voters did everything the state asked them to do. (On p. 32 of the dissent, Judge Hampson notes that the Board produced “evidence tending to show” that almost half of the voters likely did provide digits that aren’t now reflected in the database.)

I think that makes the due process problem that Rick P. highlighted even worse. If the dissent’s characterization of the evidence is accurate, for a set of the challenged voters, it’s not just that the rules have changed with respect to the notion that they might now, in rules shifting after the election, be held responsible for the state’s mistake. It’s that the rules have changed such that the court of appeals has ordered their ballots to be invalidated, after the election, without proof of any violation of North Carolina law.

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4th Circuit on felony disenfranchisement claims under Virginia Readmission Act

election law and constitutional law, felon voting

An interesting opinion from the 4th Circuit today, rejecting claims of state immunity in claims under the Virginia Readmission Act of 1870.  The plaintiffs’ suit asserts that the federal statute prevents the Commonwealth from disenfranchising citizens for convictions other than the specific crimes that were felonies at common law at the time. 

The decision didn’t address the merits, but this suit is one to watch.

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Trump and Cheseboro filings in the Georgia conspiracy case

chicanery, election law and constitutional law, Supreme Court,

As expected, President-elect Donald Trump has filed a motion in the Georgia Court of Appeals to dismiss the conspiracy prosecution against him in Georgia on the basis that “a sitting president is completely immune from indictment or any criminal process, state or federal.”  (The argument behind that claim isn’t only from the Trump v. United States SCOTUS case this past summer: the claim is well beyond what the Supreme Court decided.)

At least as interesting to me, in many ways, is the filing of Kenneth Cheseboro, in the Fulton County trial court, on the same day.  Cheseboro pled guilty in October 2023 to one conspiracy count of filing a false document, based on the filing of a fraudulent certificate of electoral votes with a Georgia federal court.  In September 2024, the Fulton County court declared that count unconstitutional with respect to John Eastman and Shawn Still as applied to these facts: the judge said that the state law couldn’t be used to prosecute false filings in a federal court.  That decision is now, I believe, up on appeal.  But in the meantime, Cheseboro has argued that a guilty plea to a charge that has been invalidated must itself be invalidated.

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Please Stop Wishcasting the Supreme Court into a Decisive Election Role

Bush v. Gore reflections, election administration, election law and constitutional law, Election Meltdown, Supreme Court, The Voting Wars, voting

Justin here.  There’s a tsunami of election litigation cascading through the legal system right now.  It’s producing a lot of public anxiety, in part because it’s designed to produce a lot of public anxiety. 

But none of the current litigation mess is actually seriously destabilizing the 2024 election process.  And absolutely none of it is realistic meaningful fodder for the Supreme Court.

It’s natural to be freaking out.  These elections are incredibly important.  The outcome is likely to be very close.  And the Supreme Court has indulged in some questionable jurisprudence of late, including historic cases involving one of the contenders. (I’m looking at you, Trump v. US).   In a last-minute decision, they’ve even (maybe) deployed a made-up equitable judicial doctrine meant to stop unwarranted last-minute election changes to block implementation of a very real federal law meant to stop unwarranted last-minute election changes.  Sometimes, it’s true, up is down.

So it’s understandable to combine all of these thoughts: to think that the current electoral litigation morass is just prelude for the Supreme Court to go full Godzilla in the aftermath. 

But wishcasting or doomcasting the Supreme Court into a decisive role in the 2024 election is at this point just indulgent dystopian fiction.  That’s not how any of this actually works.

There are three types of election lawsuits out there right now.  First, an increasingly vanishing handful of cases in a few states over limited election procedures might still yield a result in the next few days.  But as Derek has highlighted, these cases hold relatively few ballots in the balance.  As important as they are to the individual voters involved, they’re not going to change a result before the election.  And that means they’re not going to change a result after the election either.

Second, there are a handful of cases with real arguments over significant issues that have yielded an answer effectively locked in for this election.  But they’re now out of time.  The fighting will continue — some will eventually be upheld, some overturned — but without further impact on the 2024 cycle.

The third category is by far the largest: the slew of cases that. Were. Never. Going. To. Win.

Ever. 

They’re press releases and fundraising emails and vigilante manifestos, with a fancy cover page and a few footnotes, usually brought by the wrong person at the wrong time seeking relief that isn’t available.  Reformat them in Comic Sans and you’ll see them for what they are.  A lawsuit without provable facts showing a violation of actual laws is just a Tweet with a filing fee.  You can tart up numbered paragraphs with all the legalese you want, and it’s still not going to 1) magic you up a unicorn or 2) disappear 200,000 legitimate votes.

It’s alarming to think that even one Justice might want even one of any of these cases.  But it takes five Justices to act.  And there aren’t five Justices who would find any of this remotely tempting.

Take, for example, the Pennsylvania Supreme Court’s decision last week about a voter who submits an (invalid) mail ballot without a “secrecy envelope,” and then votes a (valid) provisional ballot.  The RNC asked the Supreme Court to step in, under the mysterious “independent state legislature” theory.  Could this be the one?

Nope.

The same Justices currently sitting on the Supreme Court effectively killed this notion just 16 months ago.  The pitch then was that the federal Constitution gives state legislatures a special exemption from normal state law (but only for federal elections).  And the Court firmly rejected it, 6-3.  True, the Court said that in addressing a state’s election structure, “state courts may not transgress the ordinary bounds of judicial review.”  But in Pennsylvania, the state courts just interpreted a state statute, using its normal tools of statutory interpretation.  That’s as ordinary as it gets.  The 2023 case was far tastier bait than this, and only three Justices were biting.

And yes, those three Justices noted the argument again yesterday, even as they agreed with the majority in a unanimous statement to send this case where it belonged.  6-3 is still 6-3 is still 6-3.  There’s no reason to think anyone on the Court has changed their minds.

Or, if you prefer, take the Fifth Circuit’s decision last week that Mississippi mail ballots have to be received by election day in order to count.  Is that just a setup for the Supreme Court to step in after the election?

Nope.

The decision is a little nuts.  But even this reactionary appellate panel balked at applying its own logic in the middle of an election with ballots already being cast.  It handed down a decision on what the law means, but deferred a remedy.  This is the Circuit repeatedly chastised of late for decisions too outlandish even for an exceedingly conservative Supreme Court.  Five Justices aren’t going to leapfrog them on the road to Crazytown.

I mean, Cap probably said it best.

There’s a notion that these cases are galaxy-brain traps, “zombie lawsuits” waiting to ravage the post-election landscape.  But there’s a pretty big missing step between here and there: a plausible legal argument sufficient to grant election-swinging relief.  Just as in 2020, courts this cycle in election cases have not simply been indulging what some might presume to be partisan priors: if you look only at the ostensible partisan composition of the bench, you’d get the outcome wrong much of the time.  Instead, courts have largely been acting like … courts, discarding most nonsense as it comes.  There’s more than enough horror going around already this Halloween — we don’t need to indulge the litigious supernatural. 

Speaking of seasonal Gore, I’ll concede that all bets are off if the election comes down to 537 ballots.  At that margin, anything and everything matters: a butterfly ballot flaps its wings in one part of a state and the winds change in another.  But with a margin even slightly bigger than that — a very close election, or even a very very close election — this election isn’t coming down to the lawyers, or the courts, nor even the Supreme Court.  It will, once again, be up to the voters.

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No private right of action to enforce list maintenance, voter registration provisions of HAVA, federal court holds

court decisions, election law and constitutional law

Continuing a recent tranche of lower court debates over whether certain election-related provisions permit a private right of action, including Section 2 of the Voting Rights Act and Election Day date provisions of federal law, a federal judge in North Carolina just issued the follow decision in RNC v. NC State Bd. of Elections:

Section 21083( a)(2)(A) provides that “[t]he appropriate State or local election official shall perform list maintenance with respect to “that state’s voter registration list in a manner consistent with the NVRA. 52 U.S.C. § 21083(a)(2)(A). Section 21083(a)(5)(A)(i) mandates that, prior to processing a voter’s registration, “a State” must collect the applicant’s “driver’s license number” or “the last 4 digits of the applicant’s social security number.” 52 U.S.C. § 21083(a)(5)(A)(i).

The court finds the first Cort factor, whether Plaintiffs are within the class for whose “especial benefit” these provisions were intended, weighs heavily against implying a private right of action. Cort, 422 U.S. at 78. These provisions of HAVA “are designed only to guide the State in structuring its systemwide efforts at” voter registration and voter list maintenance. Blessing v. Freestone, 520 U.S. 329, 344 (1997). Statutory provisions such as these “that focus on the person regulated rather than the individuals protected create no implication of an intent to confer rights on a particular class of persons.” Alexander, 532 U.S. at 289 (internal quotation mark omitted).

Although at some level these provisions of HAVA are aimed at ensuring the proper administration and integrity of elections, which in tum benefits all voters, it’s not enough that “the plaintiff falls within” some “general zone of interest that the statute is intended to protect.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002). “[S]uch a definition of ‘especial’ beneficiary” would “make[] this factor meaningless.” California v. Sierra Club, 451 U.S. 287, 294 (1981). Rather, something more “is required for a statute to create rights enforceable directly from the statute itself under an implied private right of action.” Gonzaga, 536 U.S. at 283. The statute must manifest “an unmistakable focus on the benefited class.” Cannon v. Univ. of Chicago, 441 U.S. 677, 691 (1979).

Put another way, “[t]he question is not simply who would benefit from” these provisions of HAVA, but rather “whether Congress intended to confer federal rights upon those beneficiaries.” Sierra Club, 451 U.S. at 294. These provisions of HAVA do not “unmistakabl[y] focus” on Plaintiffs or the voters they represent; the provisions do not mention them at all. Cannon, 441 U.S. at 691. The court thus finds that these provisions do not “create[] an individually enforceable right in the class of beneficiaries to which [Plaintiffs] belong.” City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 120 (2005). . . .

. . . the court finds that implying a private right of action under these provisions of HAVA would not be consistent with the underlying purposes of the legislative scheme. Cort, 422 U. S. at 78 . To the contrary, consideration of the legislative scheme as a whole leads the court to discern a legislative intent to deny a private remed y. On that point, HAVA contains “separate . . . enforcement mechanisms.” Indiana Pro t. & Advoc. Servs. v. Indiana Fam. & So c. Servs. Admin., 603 F.3d 365 , 379 (7th Cir. 2010). Specifically, “[t]he Attorney General may bring a civil action against any State or jurisdiction in an appropriate United States District Court” to remedy violations of Section “21083 of this title.” 52 U.S.C. § 21111. In addition, states that receive federal funding must “establish and maintain State-based administrative complaint procedures.” 52 U.S.C.A. § 2111 2(a)(l). North Carolina has done so , N.C.G.S. § 163-91(a), and the concerned citizen took advantage of this complaint procedure, DE 1-3 at 12-14.

There are ways to distinguish the Voting Right Act, the Election Day, and the HAVA cases (far too long for a blog post today!), but it’s interesting to see the RNC and DNC at cross-positions with each other in some of these cases. It also raises some interesting questions if these cases reach the Supreme Court on a similar timeline in the years ahead (no cert petitions are pending on any of them right now).

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Ninth Circuit tosses part of Arizona voter registration election case in broad standing decision, citing FDA v. AHM

election law and constitutional law, voter registration

In June, I noted that the Supreme Court’s decision in FDA v. AHM might result in an uptick in election law cases where plaintiffs would lose cases for lack of standing for plaintiffs who claimed a “diversion of resources” theory of injury, often citing a case called Havens Realty. In July, I noted this happened quickly in some courts. Last week, a Ninth Circuit panel in Arizona Alliance for Retired Americans v. Mayes tossed one claim under FDA v. AHM, with a divided panel questioning the future of FDA v. AHM for standing doctrine. (The panel also found against the plaintiffs on the merits of another claim unanimously.) The claim related to an Arizona law, which is, as the majority put it, “a provision that allows the cancellation of a voter’s registration if a county receives ‘confirmation from another county’ that the voter has moved and is registered in that new county (‘Cancellation Provision’).” If it stands, it could have significant consequences, in election law cases and beyond, in a large part of the federal judiciary.

Judge Lee, joined by Judge Collins, wrote (lightly edited):

Continue reading Ninth Circuit tosses part of Arizona voter registration election case in broad standing decision, citing FDA v. AHM →
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Unanimous DC Circuit panel finds no standing to enforce Section 2 of the Fourteenth Amendment

election law and constitutional law

Judge Wilkins, joined by Chief Judge Srinivasian and Judge Childs, in Citizens for Constitutional Integrity v. Census Bureau:

Section 2 of the Fourteenth Amendment, which specifies that seats in the House of Representatives “shall be apportioned among the several States according to their respective numbers,” also provides that the “basis of representation” for the apportionment of representatives to any state “shall be reduced” proportionately “when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged.” U.S. CONST. amend. XIV, § 2.1 This constitutional provision, dubbed the Reduction Clause or the Penalty Clause, has been historically neglected save for a handful of efforts by members of Congress and intrepid plaintiffs to enforce it. See George David Zuckerman, A Consideration of the History and Present Status of Section 2 of the Fourteenth Amendment, 30 FORDHAM L. REV. 93, 107–24 (1961); see also Lampkin v. Connor, 360 F.2d 505 (D.C. Cir. 1966).

Enter Appellant Citizens for Constitutional Integrity (“Citizens”), a non-profit organization with members in New York, Pennsylvania, and Virginia. Seeking to enforce the Reduction Clause, Citizens sued the Census Bureau, the Department of Commerce, the Secretary of Commerce (the “Secretary”), in her official capacity, and the Census Bureau Director, in his official capacity, (hereinafter referred to together as the “Bureau”) over their collective failure to proportionately reduce the basis of representation for each of the 50 states when tabulating 2020 Census data in order to calculate the apportionment of representatives as part of the Bureau’s statutorily mandated report to the President. In its complaint, Citizens asserted an Administrative Procedure Act (“APA”) claim and a mandamus claim, alleging that the Bureau, by ignoring the Reduction Clause in the apportionment calculations that it turned over to the President, flouted its constitutional and attendant statutory responsibilities; unconstitutionally deprived New York, Pennsylvania, and Virginia of congressional representation; and impermissibly diluted the power of Citizens’s members in those states.

A three-judge panel in the District Court dismissed Citizens’s challenge for lack of standing. Citizens now appeals that ruling. Because Citizens is unable to establish that its vote dilution injury is traceable to the alleged deficiencies in the Secretary’s report, it is necessarily unable to establish Article III standing with respect to that injury. Accordingly, we affirm.

Judge Wilkins also filed a separate concurring opinion:

In this case, the Bureau argued that Citizens’s claims are not redressable because the Bureau “neither [has] the authority nor the tools” to implement the Reduction Clause and because “it is far from clear that [the Secretary] would have authority to withdraw her [R]eport on the 2020 census at this point.” Appellee’s Br. 20–21; see Oral Argument Tr. 21–22. At argument, the Bureau was asked how, under its theory, any plaintiff would have standing to enforce the Reduction Clause. Id. at 23–24. “I’m not sure,” replied counsel for the Bureau, “[i]t’s not clear because of the way that the [R]eduction [C]lause and the statutory scheme exist . . . there is no obvious . . . answer to that question.” Id. at 23. When pressed further about which government actor is responsible for enforcing the Reduction Clause, if not the Bureau, the Bureau took no position, abdicating any responsibility for implementing the provision without some other congressional action. Id. at 26–28. The Bureau’s response, put colloquially, was, “Not it.”

This is an unacceptable position from an agency of the Executive Branch that is tasked with the responsibility, and empowered with the authority, to “take [c]are that the [l]aws be faithfully executed.” U.S. CONST. art. II, § 3. The Reduction Clause, which has been codified in statute since 1872, is just as important as any other constitutional provision, having been passed following intense deliberations about how to reunite a nation fractured by war and facing political differences that threatened to leave four million formerly enslaved Black Americans with “no political existence” while Southerners gained a profound increase in political power. W.E.B. DU BOIS, BLACK RECONSTRUCTION 290 (Free Press 1998) (1935); see id. at 295, 330. Equal treatment must be afforded not just to people but to the laws in place to protect their rights; it is high time, after 150 years, that the Reduction Clause receive the respect it deserves.

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My Forthcoming Yale Law Journal Feature: “The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law”

authoritarian threats in US, ballot access, Bush v. Gore reflections, campaign finance, cheap speech, chicanery, Constitutional Right to Vote, election administration, election law and constitutional law, Election Meltdown, election subversion risk, First Amendment theory, legislation and legislatures, political equality, political parties, political polarization, primaries, Real Right to Vote, social media and social protests, Supreme Court, The Voting Wars, voting, Voting Rights Act

I have written this draft, forthcoming this spring in Volume 134 of the Yale Law Journal. I consider it my most important law review article (or at least the most important that I’ve written in some time). It offers a 30,000-foot view of the state of election law doctrine, politics, and theory. The piece is still in progress, so comments are welcome. Here is the abstract:

American election law is in something of a funk. This Feature explains why, what it means, and how to move forward.

Part I of this Feature describes election law’s stagnation. After a few decades of protecting voting rights, courts (and especially the Supreme Court), acting along ideological—and now partisan—lines, have pulled back on voter protections in most areas of election law and deprived other actors including Congress, election administrators, and state courts of the ability to more fully protect voters rights. Politically, pro-voter election reform has stalled out in a polarized and gridlocked Congress, and the voting wars in the states mean that ease of access to the ballot depends in part on where in the United States one lives. Election law scholarship too has stagnated, failing to generate meaningful theoretical advances about the key purposes of election law.

Part II considers the retrogression of election law doctrine, politics, and theory to a focus on the very basics of democracy: the requirement of fair vote counts, peaceful transitions of power, and voter access to reliable information. Courts on a bipartisan basis in the aftermath of the 2020 election rejected illegitimate attempts to overturn Joe Biden’s presidential election victory. Yet the courts’ ability to thwart attempted election subversion remains a question mark in light of the Supreme Court’s recent decisions in Trump v. Anderson and Trump v. United States. Politically, Congress came together at the end of 2022 to pass the Electoral Count Reform Act to deter future attempts to manipulate electoral college rules in order to subvert election results, but future bipartisan action to prevent retrogression seems less likely. Further, because of the collapse of local journalism and the rise of cheap speech, voters face a decreased ability to obtain reliable information to make voting decisions consistent with their interests and preferences. Meanwhile, parties have become potential paths for subversion. Party-centered election law theory and the First Amendment “marketplace of ideas” theory have not yet incorporated these emerging challenges.

Part III considers the potential to transform election law doctrine, politics, and theory in a pro-voter direction despite high current levels of polarization, the misperceived partisan consequences of pro-voter election reforms, and new, serious technological and political challenges to democratic governance. Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression. The first order of business must be to assure continued free and fair elections and peaceful transitions of power. But the new election law must be more ambitiously and unambiguously pro-voter. The pro-voter approach to election law is one grounded in political equality and based on four principles: all eligible voters should have the ability to easily register and vote in a fair election with the capacity for reasoned decisionmaking; each voter’s vote is entitled to equal weight; the winners of fair elections are recognized and able to take office peacefully; and political power is fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.

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Where the Arizona proof of citizenship dispute might lead

election law and constitutional law, Elections Clause, Supreme Court

Rick P. earlier noted that Republican National Committee v. Mi Familia Vota is pending for an emergency application for a stay before the Supreme Court. There are complicated issues about the procedural posture and the timing, including which way a case like Purcell cuts after two separate Ninth Circuit panels weighed in with conflicting results, which I won’t discuss in this post. We might see some emergency order that could affect a small but non-trivial percentage of voters in Arizona in their ability to participate in the presidential election (they are already excluded from participating in the state election and already permitted to participate in the congressional election). And there is a separate issue of vote-by-mail writ large at stake in the case, but that won’t be the focus of this post.

Back in March 2022–two and a half years ago!–I sketched out what might be at stake with respect to this particular Arizona law in the long run (i.e., if the Court grants cert in this case). In brief, some federal laws purport to regulate federal elections (both congressional and presidential), but their ability to regulate presidential elections might be called into question. Some provisions (e.g., the Fifteenth Amendment or the Spending Clause) might provide an adequate basis for a given law being upheld. But it could be quite disruptive to others, in the event a state opted not to follow that law.

Continue reading Where the Arizona proof of citizenship dispute might lead →
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Considerations for a presidential age limit amendment to the Constitution

election law and constitutional law

Back in 2019, I wrote an op-ed in the Wall Street Journal entitled “No Country for Old Presidents,” in which I suggested it was time for serious consideration of an age limitation for presidential candidates and a constitutional amendment to that effect. In 2025, regardless of the outcome of the election or the events of the next several months, it’s worth a serious and sober consideration and a bipartisan working group in Congress.

To begin, of course, any restriction on qualifications is a restriction on voters. A 35-year age minimum, the natural born citizen requirement, a two-term limit rule–all work to limit voter choices. Then again, the entire point of such rules is to disfavor a class of candidates because of some ex ante public judgment. That is, rather than risk voters make a tradeoff in the moment that they may regret in the long term, the qualifications are put in place to restrict voters’ choices. That is its own serious conversation worth having.

And it’s worth considering unintended consequences. The two-term limit, for instance, has functioned as a hard cap on presidents and made lame duck presidents near the end of their terms particularly weak. Whether one thinks of the “six year itch” as real or imagined, none of the recent second-term presidents (Reagan, Clinton, Bush, Obama) could have even threatened to run for a third term (however unlikely it might have been), emboldening any political opposition to them (and one can think of emboldened political opposition to all of them in their waning years).

A 75-year-old age limit would effectively cap a new presidential candidate to 66 years of age on Election Day. That would be the only way to ensure the possibility of completing two full terms without the risk of being considered a lame duck earlier in the presidency. But few presidents ever served beyond 75 (Reagan was the only one until Trump and Biden), and perhaps it’s little risk.

There are costs to fixating on age and making assumptions about candidates and age. But many states have age limits for, say, judges, with little apparent public consequence or fixation. There are of course Type I and II errors. Plenty of 80-year-olds could serve effectively as president; plenty of 60-year-olds may have challenges that prevent effective service. But with any crude cutoff, the question is what risks we are willing to accept and what ones we are not.

If it turns out the public, the media, and the political parties do a poor job of vetting candidates’ health and acuity, then a rule barring certain candidates (at some unacceptable level of risk) seems appropriate. And if there is particular discomfort with making that assessment with not simply a candidate but the sitting president of the United States, perhaps from some fear of undermining his ability to serve in office or projecting weakness abroad, then a broad ex ante rule rather than ongoing individualized assessment also seems appropriate.

Constitutional amendments are not easy things. But just like President Roosevelt’s third and fourth term spurred the Twenty-Second Amendment, we might be in an era where such a conversation is possible. And it’s possible others would want to discuss age limits for members of the House and the Senate, or age limits for the judiciary. We would want to consider how it extends to the Vice President. (Professor Steve Sachs, for instance, has floated one proposal here.) But we may well face a moment where a serious conversation is possible next year, and it’s worth thinking about it in the months ahead.

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“En Banc Court Hears First Amendment Challenge to Campaign Finance Restriction”

campaign finance, election law and constitutional law, First Amendment theory

Trane Robinson reviews arguments in the Sixth Circuit’s National Republican Senatorial Committee v. FEC case, about limits on political party expenditures coordinated with particular candidates.  It’s an issue that’s been in the deregulatory community’s sights for a while now, and an important case that will once again likely test the staying power of precedent in the federal judiciary.

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