Category Archives: election law and constitutional law

Considerations for a presidential age limit amendment to the Constitution

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”

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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It’s SCOTUS decision season

We’re waiting for several big SCOTUS cases with a tie to this blog’s content.  One of the perhaps-less-watched (?) was released this morning: Vidal v. Elster, about an attempt to trademark “Trump too small” to use on campaign gear, after a 2016 primary tiff between Donald Trump and Marco Rubio.  The Lanham Act – the federal trademark statute – prohibits registering a trademark using a living person’s name without their consent, and the Supreme Court this morning upheld the constitutionality of that limitation.

A unanimous result with a curious lineup :

THOMAS, J., announced the judgment of the Court and delivered the opinion of the Court, except as to Part III. ALITO and GORSUCH, JJ., joined that opinion in full; ROBERTS, C. J., and KAVANAUGH, J., joined all but Part III; and BARRETT, J., joined Parts I, II–A, and II–B. KAVANAUGH, J., filed an opinion concurring in part, in which ROBERTS, C. J., joined. BARRETT, J., filed an opinion concurring in part, in which KAGAN, J., joined, in which SOTOMAYOR, J., joined as to Parts I, II, and III–B, and in which JACKSON, J., joined as to Parts I and II. SOTOMAYOR, J., filed an opinion concurring in the judgment, in which KAGAN and JACKSON, JJ., joined.

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“The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act”

The Case Western Reserve Law Review has just published my article, “The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act.” Here is the abstract:

When Congress convenes under the Twelfth Amendment and the votes of presidential electors are counted, there are three different responsibilities to consider. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes?

This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. And that means the chamber—here, the joint session—can constrain the President of the Senate as presiding officer. Congress did exactly that when it chose to further constrain the discretion of the President of the Senate in the Electoral Count Reform Act of 2022. Second, Congress counts electoral votes. The evidence in the text and structure of the Constitution and congressional practice before the ratification of the Twelfth Amendment supports this interpretation. Third, the power to resolve disputes runs with the power to count. And that means Congress also has the power to resolve disputes about presidential electors.

Separating these responsibilities is crucial because it can be too easy to conflate some of these activities, which in turn elides over the distinctions in responsibilities. When the presiding officer acts, she does so not to count votes, but to preside over the joint session and help it proceed according to the rules and precedents set by Congress. The actions she takes may resemble the substantive act of counting. But close scrutiny of the record reflects that the President of the Senate does not count, and has never counted, votes. That is because the power to count resides in Congress, where the Twelfth Amendment lodges that power.

This Essay begins by examining the text of Article II, specifically its Counting Clause. It argues that a change in verb voice in the clause removes the President of the Senate from the role of counting electoral votes. Part II then moves to the original public meaning of the Twelfth Amendment through an interpretation of congressional practices. Majorities of both houses of Congress in 1800 believed Congress had the substantive power to resolve disputes over electoral votes. These details give an important gloss to the Twelfth Amendment, which was ratified in 1804. Part III examines the structure of the Constitution. Crucially, the President of the Senate, not the Vice President, bears the responsibilities in the Twelfth Amendment. While these two terms are often used interchangeably, they are not interchangeable for purposes of understanding the separation of powers and the role of Congress. Part IV concludes with an examination of the newly enacted Electoral Count Reform Act. It identifies the major elements of the Act and it focuses on the Act’s decision to expressly narrow the responsibilities of the President of the Senate in the joint session where Congress counts electoral votes. Congress’s decision to define the role of the presiding officer is squarely within its constitutional authority.

The piece responds to some arguments made by Professors John Yoo and Robert Delahunty in the Case Western Reserve Law Review; and concerns raised by Professors Gary Lawson and Jack Beerman. It engages with recent work by Professor Joel Goldstein, and others. Portions are drawn from blogging here and from my Senate testimony regarding the Electoral Count Reform Act. Professor Jonathan Adler weighs in over at Volokh here.

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Political questions and Section 3 of the Fourteenth Amendment

I went back to look at some of the commentary around the Supreme Court’s decision in Rucho v. Common Cause in 2019. The decision shut the door on federal constitutional challenges to partisan gerrymanders. Much of the commentary around the decision at the time, unsurprisingly, focused on partisan gerrymandering, including alternative means of challenging gerrymanders (in state court or by ballot initiative, among other things), along with some reflection on the path from Davis v. Bandemer to Rucho.

There wasn’t a whole lot of discussion of the particular means the Court used, the political question doctrine. Yes, there was criticism about the Court angsting that it needed to keep itself out of the partisan political process. But not much on how the Court got there.

More than four years after Rucho, however, it appears that how Rucho got to the political question doctrine may be quite significant–and its influence continues to grow, as recent challenges to Donald Trump’s candidacy under Section 3 of the Fourteenth Amendment demonstrate.

Continue reading Political questions and Section 3 of the Fourteenth Amendment
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A few more quick thoughts on Moore

Moore v. Harper, much like Allen v. Milligan, was a shocker for me. Given how the posture of the case had changed, I didn’t expect the justices to reach the merits. I’m glad they did. A few thoughts:

1) In some ways, Moore v. Harper reads as a reaffirmation of the concept of judicial review, closing the loop on this idea that the Elections Clause is an exception to this principle that insulates state legislative action over federal elections from review in federal court and, until this case, possibly state court. While state courts are differently positioned than their federal counterparts, I had underestimated how much the Supreme Court might view this case as a threat to the concept of judicial review, more generally.

In Rucho v. Common Cause, the Supreme Court held that partisan gerrymandering claims were nonjusticiable political questions that would not be heard in federal court. But the Court also explicitly rejected the idea that claims brought under the Elections Clause, unlike those brought pursuant to the Guarantee Clause, were judicially unreviewable. These two principles are not necessarily in tension because it could be the case that partisan gerrymandering claims are just not the type of Election Clause claims that the Court feels capable of resolving even though other types of claims under this provision might be more manageable. Despite the Court’s assertions to the contrary, however, Rucho might have opened the door for the Elections Clause to function as a provision that has limited judicial enforcement, a sentiment that the Court sought to shut down in Moore v. Harper.

2) Second, what does Moore mean in light of Milligan, the Alabama Section 2 case from a couple of weeks ago that shocked every election scholar I know? One might say that the Court is affirming that it is still very much a player in the democracy space, again pushing back against the (rightful) perception that, after Rucho and Bronovich, the Court is less committed to policing our system of democracy. In addition, both Milligan and Moore offer an opportunity for the Court to push back against these negative perceptions by simply reaffirming the status quo. Milligan reaffirmed that Section 2 vote dilution claims are still actionable under the Gingles framework, and Moore rejects a theory that would have caused a sea change in how state courts oversee the actions of state legislatures with respect to federal elections. The Court gets a huge pay off, in terms of maintaining its legitimacy, but by structurally changing very little.

3) There are a couple things at play in Moore that run contrary to our assumptions about the Court’s more general anti-Democratic posture that are worth pointing out. First, there may just be some arguments that go too far, and would be too disruptive should they become law, that they turn off some of the more conservative members of the Court. That says a lot about where we are as a democracy, and where this Court is as an institution.

To this point, Chief Justice Roberts (writing for the majority) discusses Arizona State Legislature v. Arizona Independent Redistricting Commission as proof that legislatures are not the sole source of lawmaking authority over federal elections within a state, even though he wrote a lengthy dissent in that case arguing that the term “legislature” as used in the Elections Clause means the institutional legislature and not the broader lawmaking processes. He reliance on this case, despite his very heated dissent, is further proof (along with Justice Thomas’ reliance on the case as well) that the goal posts have moved from basic questions of whether “legislature” means “legislature” to more nuanced concerns about whether legislatures should be given broad authority, subject only to very little oversight from a massively dysfunctional Congress, to blow up any notion of democracy within their borders. Roberts is known for using subsequent cases to minimize or subvert holdings that he doesn’t necessarily agree with, but he doesn’t do that here (at least not as much as he normally does, see point 4 below).

Second, John Roberts, in rejecting the independent state legislature theory, might be defending his legacy. He wrote Rucho, which asserted that state law and state courts could be a more than adequate response to the ills of partisan gerrymandering than any remedy the federal courts could provide. Would he be willing to sign on to any theory that could call into question a decision (and a controversial one, at that) that Roberts authored less than five years ago? Probably not. Again, it is not that the author of Shelby County has become a huge democracy advocate but he might feel the need to defend his turf a bit.

I am sure that, given these stakes, 100 years of precedent rejecting the idea that state legislatures have exclusive authority to regulate federal elections is much more persuasive than the Federalist 78, which the dissenters rely on to argue that state legislatures are empowered in this manner. Moore is also a very common-sense decision – state legislatures cannot be free of the constraints of the documents (state constitutions) that created them nor has it been true that state legislatures exercise power in this domain independent of the other branches of state government. The fact that we had to contemplate otherwise is an insane bit of nonsense that I hope died a sure death today.

4) To be clear, I am not asserting that the Roberts Court has all of a sudden become the Warren Court. Towards the end of the opinion, in typical Roberts form, he offers some vague constraints on state courts that apply when they are policing state legislative action on the Elections Clause, a standard that (as Derek points out here) very much resembles the standard offered by Chief Justice Rehnquist over two decades ago in Bush v. Gore. In some ways, this standard is Roberts’ attempt to make sure that “legislature” means “legislature” as much as he possibly can without explicitly running afoul of Arizona Independent Redistricting Commission while staying true to the text of the Elections Clause, which empowers the legislature to set the manner of federal elections. What this vague test – that “state courts may not transgress the ordinary bounds of judicial review” – actually means will almost certainly be a point of controversy in years to come. Policing whether state courts have crossed this line will keep federal courts in the business of overseeing federal elections for the foreseeable future, contrary to what Roberts had hoped to achieve in Rucho.

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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.)

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“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.

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