Category Archives: election law and constitutional law

Political Conduct and the First Amendment

election law and constitutional law, First Amendment theory, social media and social protests, Supreme Court, The Voting Wars, voting, , ,

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.

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New essay alert: “In Whom is the Right of Suffrage?”

election law and constitutional law, felon voting, voting

This is my first blog post on ELB, and I couldn’t be more excited to be a part of the revamp. I am a devout reader of the blog and very much appreciate the hard work that Rick has put in to provide this outlet for the election law community.

I wanted to blog a bit about an essay that I wrote for the joint “Reckoning and Reformation” symposium (which was graciously hosted by a number of law reviews) that I am super excited about. My contribution, forthcoming in the University of Pennsylvania Law Review, is entitled “In Whom is the Right of Suffrage?: The Reconstruction Acts as Sources of Constitutional Meaning.” It is on ssrn, available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3880655.

The essay (which is short!) looks at the Reconstruction Acts that readmitted the former confederate states back into the union during Reconstruction. Scholars have long argued that these acts, which imposed certain limits on these states as a condition of readmission, are legally unenforceable, but my essay argues that the statutes still have implications for how we think about voting rights today.

Importantly, the Acts imposed limitations on southern states with respect to the voting rights of their citizens, stating that they could only disenfranchise individuals for felonies at common law. This language sheds light on the reach of the reduced representation provision of Section 2 of the Fourteenth Amendment and, importantly, the universe of crimes for which one can be disenfranchised consistent with the republican guarantee of Article IV, Section 4. Section 2, in particular, allows Congress to reduce a state’s delegation in the House of Representatives by removing disfranchised voters from the basis of population used for apportionment, but permits states to disenfranchise individuals “for participation in rebellion or other crime.”

Clarifying Section 2, the Reconstruction Acts specify that these states can disenfranchise their residents only for crimes “as are now [1868] felonies at common law” and not for the wide range of crimes that are currently used to disenfranchise individuals in all southern states. In other words, when states disenfranchise their citizens in violation of Section 2 and the Guarantee Clause, as informed by the Reconstruction Acts, these violations constitute an abridgment of the right to vote and render their governments unrepublican in form.

This essay has obvious implications for Florida’s felon re-enfranchisement provision (SB 7066), which requires individuals to pay all fines and fees before they can regain their right to vote after a felony conviction. In Jones v. DeSantis, the 11th Cir upheld SB 7066, but there is no mention of the 1868 Reconstruction Act in the court’s opinion, which upheld the law on the grounds that paying all fines and fees is “highly relevant to voter qualifications.” However, the fact that people are impermissibly disenfranchised for crimes that were not felonies at common law, as specified by the Reconstruction Act readmitting Florida into the union, means that the requirement cannot be relevant to voter qualifications and therefore makes SB 7066 a poll tax.

I hope that you enjoy this short read! Comments are welcome!

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The list of COVID-19 election cases hits 325

court decisions, election administration, election law and constitutional law, Supreme Court, The Voting Wars

Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 325. (The Stanford-MIT Healthy Elections Project also has a really useful sortable database of these cases, with more info. And Josh Douglas is separately tracking just the federal appeals, to see how they shake out.)

A reminder: the number in each state isn’t necessarily a good indication of the contentiousness of the issues: any individual case may be a good case or a shoddy one, or a “big” case or a “small” one — and some can be both at the same time. (The Eighth Circuit’s ruling Rick rightly called “outrageous” is probably a small case with respect to the number of ballots it will ultimately impact, and a giant case when it comes to the legal questions at issue). And some of these cases are essentially repeat claims of others. But overall, that’s still an awful lot of legal paper.

There’s an upside to some of this: with litigation brought in March, April, or May, as the pandemic reached the primaries, we got resolution of some pretty contentious issues in June, July, August, September. and October. That’s less to fight about in November. Which is good for everyone. There are some new cases, mostly asking for increasingly localized relief, and a few bomb-throwers that will be tossed out of court. Most of the cases are now done.

These are just the cases I know of — I’m sure I’m missing some. State court cases are particularly difficult to track. I think that five states have still been spared so far (Kansas, Nebraska, Washington, West Virginia, and Wyoming) … but if you know of a COVID-related election case I’m missing here, please let me know.

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The list of COVID-19 election cases hits 275

election administration, election law and constitutional law, Election Meltdown

Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 275. (The Stanford-MIT Healthy Elections Project also has a really useful sortable database of these cases, with more info.)

A reminder: the number in each state isn’t necessarily a good indication of the contentiousness of the issues: any individual case may be “big” or “small” — or a good case or a shoddy one — and some of these cases are essentially repeat claims of others. But overall, that’s still an awful lot of legal paper.

There’s an upside to some of this: with litigation brought in March, April, or May, as the pandemic reached the primaries, we got resolution of some pretty contentious issues in June, July, August, September, and squeaking into October. That’s less to fight about in November. Which is good for everyone. There are some new cases, mostly asking for very tailored relief, and a few bomb-throwers that will be tossed out of court. Most of the cases are now done.

These are just the cases I know of — I’m sure I’m missing some. State court cases are particularly difficult to track. I think that five states have been spared so far (Kansas, Nebraska, Washington, West Virginia, and Wyoming) … but if you know of a COVID-related election case I’m missing here, please let me know.

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PA legislators ask SCOTUS to stay mail deadline ruling

absentee ballots, election law and constitutional law, Elections Clause

(Cross-posted at Take Care)

The state Senate leadership in Pennsylvania, intervenors in litigation over the deadline to receive ballots cast by mail, has just asked the U.S. Supreme Court to stay a Sept. 17 decision of the Pennsylvania Supreme Court. The Pennsylvania Supreme Court ruled that ballots must be counted if they’re received by Nov. 6, unless a preponderance of the evidence shows that those ballots were mailed after Election Day. The stay request asserts that this decision violates the federal law setting November 3 as Election Day, and also that it violates the Elections Clause of the Constitution.

That latter claim is worth a moment. The Elections Clause says that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . ,” unless Congress says otherwise.  The U.S. Supreme Court has consistently interpreted this delegation to the “Legislature” to mean a delegation to the state lawmaking process (see, e.g., the 2015 opinion by Justice Ginsburg upholding Arizona’s independent redistricting commission).

The stay application filed at the U.S. Supreme Court claims that the Pennsylvania Supreme Court “has substituted its will for the will of the General Assembly, and this substitution usurps the authority vested in the General Assembly by the Elections Clause.” The stay application also claims that “denying the requested stay will have a cascading effect on th[e] Court’s docket,” with a lot of other cases in the hopper.

Those are big claims. But I’m not at all sure that the frame is right … and I’m quite sure that granting the stay on Elections Clause grounds would have a much larger and more disruptive cascading impact.

Continue reading PA legislators ask SCOTUS to stay mail deadline ruling →
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The list of COVID-19 election cases hits 250

court decisions, election administration, election law and constitutional law, Election Meltdown

Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 250. (The Stanford-MIT Healthy Elections Project also has a really useful sortable database of these cases, with more info.)

A reminder: the number in each state isn’t necessarily a good indication of the contentiousness of the issues: any individual case may be “big” or “small” — or a good case or a shoddy one — and some of these cases are essentially repeat claims of others. But overall, that’s still an awful lot of legal paper.

There’s an upside to some of this: with litigation brought in March, April, or May, as the pandemic reached the primaries, we got resolution of some pretty contentious issues in June, July, August, and now September. Most of the cases are now done.

These are just the cases I know of — I’m sure I’m missing some. State court cases are particularly difficult to track. I think that five states have been spared so far (Kansas, Nebraska, Washington, West Virginia, and Wyoming) … but if you know of a COVID-related election case I’m missing here, please let me know.

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The list of COVID-19 election cases hits 200

election law and constitutional law, election law biz, Election Meltdown

Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 200. 202, actually.

The number in each state isn’t necessarily a good indication of the contentiousness of the issues: any individual case may be “big” or “small” — or a good case or a shoddy one — and some of these cases are essentially repeat claims of others. But overall, that’s still an awful lot of legal paper for mid-August.

These are just the cases I know of — I’m sure I’m missing some. State court cases are particularly difficult to track. I think that seven states have been spared so far (Delaware, Kansas, Nebraska, Vermont, Washington, West Virginia, and Wyoming) … but if you know of a COVID-related election case I’m missing here, please let me know.

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“Durkan Supports Capping Super PAC Donations and Blocking Amazon from City Elections”

campaign finance, election law and constitutional law

In the wake of substantial spending by Amazon (and others) in 2019 city council elections, Seattle contemplates a Clean Campaigns Act purporting to limit contributions to Super PACs, and to limit spending from corporations with more than 1% ownership from a single foreign national or 5% ownership from multiple foreign nationals. 

They know there are substantial legal questions (including in the Ninth Circuit) – there’s a good article from The Stranger on some of the legal backdrop.

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“Justices Urged to Nix Donor Disclosure Law”

campaign finance, election law and constitutional law, tax law and election law

Bloomberg:

An unusually large number of amicus briefs filed by friends of a charity tied to the Koch brothers have flooded the U.S. Supreme Court, urging the justices to nix a California law requiring charities to disclose their largest donors to state lawmakers.

These briefs (here) all came in September, but the Justices will be considering the Thomas More Law Center/Americans for Prosperity Foundation v. Becerra cert. petitions this Friday.

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Election-related options still to come at AALS

census litigation, election law and constitutional law, The Voting Wars, theory, voting

Rick already mentioned a few of the exceptional election-related events at AALS so far. 

There are still several to come, including my stint tomorrow at 8:30 as least valuable player on a 2020 census panel with Dale Ho, Christina Mora, and Franita Tolson, moderated by Rachel Moran. 

Then stick around for a 10:30 panel on the 15th and 19th Amendments with Atiba Ellis, Catherine Powell, Camille Gear Rich, Jorge Roig, Ciara Torres-Spelliscy, and Sarah Catherine Walker, moderated by Marc-Tizoc Gonzalez.   And a 1:30 program on partisan politics and our democratic order, with andré douglas pond cummings, Emma Jordan, Yvonne Lindgren, and Gerald Torres, moderated by Steven Ramirez.   And another 1:30 program on litigating voting rights remedies in the Trump era, with Elise Boddie, Guy-Uriel Charles, John Harrison, and Pam Karlan, moderated by Alexandra Lahav.  And a 3:30 program on discussing socioeconomic issues in the context of a polarized and polarizing election season, with Natalie Gomez-Velez, Susan Kuo, and Bertrall Ross, moderated by Deleso Alford and June Rose Carbone.

And the big presidential program tomorrow at 1:30, on representation, voting, and sustainable constitutional democracy, with Guy, Pam, Michael Morley, and Kim Lane Scheppele, moderated by Thomas Ginsburg.

Among (many) others.  If you’re in the Wardman Park area, come join!

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“Top DFLers, state party defend law that permits Trump-only GOP primary ballots”

election law and constitutional law, political parties, The Voting Wars

The real story isn’t that state party officials are defending state party associational rights under the First Amendmetn (even if they also benefit opposing parties).  The real story is the practical recognition that litigation now begins to creep up on getting the ballots out.  The primary season is upon us.

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“The Constitution in 2020″ in 2020”

election law and constitutional law, political parties

Josh Blackman, at the Volokh Conspiracy, offers a timely reminder of the 2009 ACS essay compilation — “The Constitution in 2020” – with a progressive vision of future constitutional law.  The compilation included, among others, a piece by Pam Karlan on voting rights and one by Larry Kramer on political organization and mobilization.

The future, naturally, is now.  And Josh flags the value in evaluating the blueprint vision against the present reality.  I’ll be looking forward to the continuing discussion.

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