Category Archives: Elections Clause

Two federal courts have recently found that states have no sovereign immunity under the Elections Clause

To continue my sovereign immunity discussion from yesterday, a federal court last year found that Congress did not abrogate state sovereign immunity under the Voting Rights Act. Congress must do so with “unmistakable clarity” when enforcing the Reconstruction Amendments, per Supreme Court precedent. You can sue the secretary of state; you cannot sue the state.

But a couple of federal district courts have been looking at the same issue from a different angle, under the National Voter Registration Act of 1993. They look at a different clause of the Constitution, the Elections Clause. Over the last couple of decades, the Supreme Court has increasingly found exceptions to what was once thought to be a stronger presumption that Congress lacked the power to abrogate state sovereign immunity under its Article I authority. But since then, it has decided cases involving bankruptcy, war powers, and eminent domain where states, under the “plan of the [constitutional] convention,” surrenders some of their sovereign immunity. And so, the Elections Clause has been a topic of some discussion in the lower courts.

In Illinois Conservative Union v. Illinois, a federal court issued this brief docket order in 2021: “Under the plan of the Convention doctrine, the Court finds that Plaintiffs may proceed against the State and the Board and denies the State and the Board’s motion to dismiss the NVRA claim 5 based on sovereign immunity.”

A more fulsome evaluation took place in a different federal court in Illinois in Public Interest Legal Foundation v. Sandvoss in 2022 (lightly edited):

Continue reading Two federal courts have recently found that states have no sovereign immunity under the Elections Clause
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“Final judgment,” not mootness, at issue in latest Moore v. Harper twist

Rick H. links to the Supreme Court’s order in Moore v. Harper requesting more briefing. According to the Supreme Court’s docket, no party has raised the fact of the rehearing scheduled in the North Carolina Supreme Court, which has been known publicly for about a month. In that rehearing, the state court may reconsider its previous holding that the state constitution forbids excessive partisan gerrymanders, including partisan gerrymanders of congressional maps.

So the first intriguing part of this case is that the Court raised this sua sponte. Indeed, when it comes to this specific issue of whether there is a “final judgment,” the Court can raise it on its own motion. See Johnson v. California (2004) (“It is our obligation to raise any question of such compliance on our own motion, even though counsel has not called our attention to it.”). Several things crop up…. Warning, long, semi-coherent thoughts ahead!

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Kate Shaw on oral argument in Moore v. Harper

Over at Just Security, Kate Shaw has a piece entitled, “Oral Argument in Moore v. Harper and the Perils of Finding ‘Compromise’ on the Independent State Legislature Theory.” From it:

[A] majority may be willing to sign onto some version of the theory, even if a more circumscribed one. Depending on what that looks like, the theory could have important implications for future elections—both congressional and presidential. The “blast radius,” as Neal Katyal repeatedly called the potential effects of the Moore decision during Wednesday’s argument, appears unlikely to be as wide as many initially feared—and as the North Carolina legislators are still seeking—and the decision might not immediately “wreak havoc in the administration of elections across the nation,” in the words of Solicitor General Elizabeth Prelogar. But, in the effort to find a “middle ground” or the like, the Court may nevertheless embrace some version of the ISLT. That is both alarming in its own right, and could invite future challenges that allow the Court to go still further.

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The Fifteenth Amendment and the Independent State Legislature Theory

The following is a guest post from Travis Crum:

The Supreme Court recently heard oral argument in Moore v. Harper, which concerns the definition of “legislature” in Article I’s Elections Clause and the so-called independent state legislature theory (ISLT). A core dispute in the case is whether—and to what extent—state constitutions can restrain state legislatures’ regulation of federal elections. Accordingly, the parties and the Justices deliberated over historical examples of state legislatures regulating federal elections. However, this discussion overlooked an important historical episode concerning the analogous power of “legislatures” exercising ratification authority under Article V.

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Turning Rehnquist’s concurring opinion in Bush v. Gore into a consensus majority standard

During oral argument in Moore v. Harper today, one could be forgiven to forget that Chief Justice William Rehnquist passed away nearly two decades ago and is not currently sitting on the court. He was invoked more than a dozen times. His concurring opinion in Bush v. Gore, an opinion much maligned in the bulk of academic commentary on the topic and untouched by the Supreme Court for many years, seemed to attract the attention of the Court as a “middle way.”

There’s a lot to unpack from this development alone.

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Argument previews for Moore v. Harper

Jess Bravin in the Wall Street Journal.

Adam Liptak in the New York Times.

Nina Totenberg at NPR.

Robert Barnes in the Washington Post. (Which includes this graf: “‘Fringe’ is a word ubiquitous in the filings. But four of the nine Supreme Court justices have already expressed interest in — if not outright support for — the state-legislature theory. Which raises the question: How much of an outlier can it be?”

Greg Stohr at Bloomberg.

(Some of these pieces, here and elsewhere, point to the possibility that the governor may not be able to veto legislation under a robust reading of the Legislature Thereof Clause, but I’m not sure any serious proponent has called for Smiley v. Holm to be overturned or suggesting it was wrongly decided. As Rick Pildes blogged here earlier, “I see no prospect that the doctrine would mean governors cannot exercise their ordinary veto powers over state legislation regulating national elections. That issue is a red herring. None of the scholars who endorse the ISLT — there are scholars who do, and of course advocates, as a recent panel hosted by Georgetown Law’s SALPAL shows — believe it leads to the conclusion that governors lose their veto powers. That is evidence of how even proponents of the theory tend to understand its scope.”)

C-SPAN will stream the argument audio live today.

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Some Moore v. Harper commentary and roundup

Ahead of oral argument in Moore v. Harper December 7, commentary and roundup is coming in from everywhere. A few pieces:

In the New York Times, Michael Wines has a piece, “Supreme Court to Hear Arguments on Far-Reaching Elections Case.”

At Reuters, Andrew Chung writes, “Supreme Court considers limiting judicial scrutiny in U.S. elections.”

Joan Biskupic at CNN has an article, “How Bush v. Gore led to the new monumental challenge to presidential election rules.”

Over at Politico, “How the ‘independent legislature’ case before SCOTUS could upend elections.”

At Roll Call, “Supreme Court to weigh state power over federal elections.”

Steve Calabresi (who filed a brief in support of respondents with Akhil Amar and Vik Amar) has this op-ed in the Wall Street Journal, “Can the Supreme Court Define a State’s ‘Legislature’?”

Over at Heritage, David Rivkin and Andrew Grossman (who filed a brief in support of petitioners for the “Lawyers Democracy Fund and State Legislators”), joined by Richard Raile, have an extensive examination of the instances when states courts have reviewed that the state legislatures have done in federal elections.

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How the parties handle adverse precedent in Moore v. Harper

There’s plenty of precedent for the parties to rely upon in Moore v. Harper. I wanted to see how each side handled one of the toughest cases on either side–and apart from a brief aside from the petitioners, the parties do not argue these opinions should be overturned or ignored. For the petitioners, Arizona State Legislature v. Independent Redistricting Commission. For the respondents (acknowledging it was only a concurring opinion and not the controlling opinion of the Court), Chief Justice Rehnquist’s opinion in Bush v. Gore.

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Did the Postal Service usurp Congress’s authority under the Elections Clause during the 2020 election?

A federal district court judge in Washington, DC just issued a decision in New York v. Biden (originally filed as New York v. Trump). Here are excerpts of New York’s claim under the Elections Clause, filed back in October 2020 (with some omissions):

Continue reading Did the Postal Service usurp Congress’s authority under the Elections Clause during the 2020 election?
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Is there a political question issue lurking in Moore v. Harper?

Plenty of commentary and analysis over Moore v. Harper focuses on the meaning of the Legislature Thereof Clause tucked inside the Elections Clause. But one concept has received essentially zero examination: the political question doctrine. Some of the history of redistricting disputes and the Elections Clause touch on either the notion that review of issues arising under the Clause are left to Congress, not to the federal courts; or that there are no judicially-manageable standards for courts in patrolling the Elections Clause. I thought I’d take a look at those issues ahead of Moore.

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What, exactly, would a judicially-manageable standard under the Elections Clause look like after Moore v. Harper?

Rick Pildes here at ELB has already commented on the petitioners’ brief in Moore v. Harper, the Legislature Thereof Clause, as a brief that “trades off between” a “strong” interpretation and a “weak” interpretation of the Clause–strong, in that the state constitution cannot ever substantively constrain the state legislature, and weak, in that the state constitution cannot have “vague” provisions interpreted by state courts to constrain the state legislature.

I want to delve into this more. By my count, the petitioners in Moore offer five different conceptualizations of conceiving of the boundaries of the Elections Clause, and amici offer three different approaches. On the one hand, a suite of options may make it possible for the Court to find consensus around such a construction. On the other hand, it is, in my judgment, a deficiency, an inability to coalesce around a manageable standard for the Court.

Continue reading What, exactly, would a judicially-manageable standard under the Elections Clause look like after Moore v. Harper?
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Federal court concludes Oklahoma’s “irrevocable letter of recommendation” properly triggers vacancy under the Seventeenth Amendment

I blogged earlier about Oklahoma’s unusual “vacancy” statute, with some skepticism about its constitutionality, with follow up about some stronger defenses of the state’s statute in state court briefing. The state court case was quickly tossed, and a federal challenge arose. In Jones v. Stitt, the district court concluded the plaintiff lacked standing to challenge the statute, but conceded that the appellate court might view the issue differently (and the decision has already been appealed). It went on to address the merits (lightly edited for citations):

The amendment provides no explicit guidance as to when “vacancies happen.” Tedards v. Ducey, 951 F.3d 1041, 1050 (9th Cir. 2020). Plaintiff contends the term must be understood as it would have been understood by persons at the time of adoption and cites various dictionary and similar definitions of “vacancy” supporting the idea that, to be “vacant,” an office must be unoccupied. The argument is a respectable one, but the court concludes it takes too narrow a view of the constitutional language and fails to take into account other constitutional principles which impact the result here.

The Seventeenth Amendment itself provides that the states shall have a measure of control and discretion over vacancy elections, particularly the provision that temporary appointments may be made “until the people fill the vacancies by election as the legislature may direct.” Although the appellate cases applying that phrase take somewhat differing views as to whether it qualifies only the proviso as to appointment power or the Amendment more broadly, they all appear to recognize the legislature’s discretion as to directing vacancy elections. See Tedards v. Ducey, 951 F.3d 1041, 1051 (9th Cir. 2020) (confers discretion as to the “direct[ing]” of a vacancy “election”); Judge v. Quinn, 612 F.3d 537, 550 (7th Cir. 2010) (“the proviso gives the state legislatures the power to direct the “election” in which the people “fill the vacanc[y]”); Trinsey v. Com. of Pa., 941 F.2d 224, 232-3 (3d Cir. 1991); Valenti v. Rockefeller, 292 F.Supp 851, 866 (W.D.N.Y. 1968), aff’d. 393 U.S. 404 (1969). As the Valenti court put it, “We read the Amendment to confer a reasonable discretion upon the states concerning the timing and manner of conducting
vacancy elections.” Id.

But . . . the Elections Clause provides additional authorization for states to address the timing and manner of vacancy elections.

The court concludes the “reasonable discretion” and “broad power” conferred on the states by the Seventeenth Amendment and the Elections Clause are sufficient to authorize the procedure that Oklahoma has adopted, and that the Seventeenth Amendment does not mandate a particular and different sequence of events. In effect, the Oklahoma procedure commences the election procedure before the office becomes unoccupied but nonetheless fills the “vacancy” through its control of the “time” and “manner” of the election.

. . . As noted above, the Senate is the judge of the elections and qualifications of its members. U.S. Constitution, Art. I, Sec. 5. So far as the court has been able to determine, no issue was raised by any senator as to the propriety of seating Senator Inhofe and Senator Lankford after they were selected pursuant to some version of the current Oklahoma procedure.

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