Category Archives: Elections Clause

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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With one simple sentence, Congress could (mostly) end the “independent state legislature doctrine”

The Elections Clause provides, “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”

Here, the (hypothetical) Symmetrical Elections Act of 2022:

Except where otherwise inconsistent with the Constitution of the United States or with Federal law, the times, places, and manner of holding elections for Senators and Representatives shall be the same as for the most numerous branch of the state legislature, including the times, places, and manner set forth in the Constitution, laws, and regulations of the state, as authoritatively interpreted by the courts of the state.

Three caveats to this otherwise simple solution.

First, it excludes presidential elections. The Supreme Court has said in the past that the power of Congress over presidential elections is broad. But there does remain a formal textual constitutional difference between the two (even if some laws do extend to regulation of both presidential and congressional elections), and there are additional tricky things about presidential elections (for instance, holding at-large winner-take-all elections for presidential electors; and how primaries interact with the general election, as presidential primaries are different in kind than other primary elections). This proposed statute could still lead to remaining disputes about presidential elections under the Presidential Electors Clause. It would, of course, exert significant pressure on states to conform their presidential elections to match everything else, but exerting power in one area of elections and hoping states follow along elsewhere hasn’t always worked out as expected. But, it would end all redistricting disputes arising under the doctrine, among other things.

Second, while a simple solution, it would entirely upend the election codes of all 50 states. I don’t know any state that has perfect symmetry between congressional and state elections (e.g., signature petition requirements, filing requirements and deadlines, etc.). From Nebraska’s nonpartisan state legislature to Vermont’s primary petition signature requirements, some rules everywhere would change. While there’s a large amount of existing symmetry, it would really require every state to revisit its election code quickly.

Third, it might invite federal courts (including the United States Supreme Court) to review questions of state law. I’m not sure how to puzzle through the jurisdictional questions, and it might some refining. A rule like this would seem to incorporate state law into federal law, and maybe federal courts would simply Erie-guess their way through these problems.

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Arizona’s new proof of citizenship law treats presidential & congressional voters differently, a constitutional distinction in federal power over elections

Rick linked to an NPR story on Arizona’s HB 2492, and this line caught my eye: “Under HB 2492, if elections officials can’t find evidence that a federally registered voter is a U.S. citizen, that voter can’t vote by mail, or cast a vote in presidential elections.” It picks up on a distinction in federal power over elections, an issue that’s lurked under the surface of a variety of election laws over the last hundred years but may return to the surface–the difference between congressional and presidential elections.

Continue reading Arizona’s new proof of citizenship law treats presidential & congressional voters differently, a constitutional distinction in federal power over elections
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“The Dangerous Independent State Legislature Theory”

To the growing body of recent scholarship on the topic, this piece from Jason Marisam, forthcoming in the Michigan State Law Review:

In 2020, conservative justices and the Trump Campaign championed a theory, known as the independent state legislature doctrine, that claims voting rights protections in state constitutions do not apply to the election rules that state legislatures set for the federal elections in their states. Under the theory, state courts cannot review and enjoin these state election laws for state constitutional violations. This Article exposes the flaws and dangers of the independent state legislature theory. It deconstructs the justifications for its utility, revealing them as undertheorized and based on flawed assumptions of legislative behavior and flawed understandings of constitutional and institutional design. As for the danger, while our constitutional system generally provides dual federal-state protections for civil rights, the independent state legislature theory would effectively remove state constitutions as a safeguard for voting rights. In this way, the theory would make voting rights the least protected civil right.

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Election litigation update for week ending March 25, 2022

Filing a complaint or winning a judgment are actions good enough to earn the headlines, but there’s plenty of election litigation ongoing throughout the United States at various stages. A taste of a few things that happened over the past week (or so):

Houston Community College System v. Wilson: the Supreme Court unanimously concluded that a member of a community college board of trustees does not have a First Amendment claim arising out of a verbal censure of the member. Part II-C of the opinion digs a bit into Bond v. Floyd (1966) and Powell v. McCormack (1969).

League of Women Voters of Florida v. Lee (N.D. Fla.): the court asked for supplemental briefing this week in a challenge to SB 90, and how a new bill, SB 524, may affect the pending claims (if Governor Ron DeSantis signs the bill–I’m not aware that federal judges often ask for briefing about the impact of a potential new law). The parties dispute the effect of the bill on the pending litigation.

Cawthorn v. Circosta (E.D.N.C.): in a challenge to the qualifications of Representative Madison Cawthorne, consistent with a previously-described procedural morass, the Fourth Circuit sent the case back to the district court to evaluate whether any of the putative intervenors should be granted the opportunity to intervene. Briefing on this topic is set to close March 28, and another appeal on the topic (or on the merits) may follow. It does not appear that the matter will be resolved ahead of the primary election.

Toth v. Chapman (M.D. Pa.): the Supreme Court recently refused to take up an Elections Clause challenge to Pennsylvania’s maps (an “independent state legislature doctrine”-style claim). The district court has now dismissed the claims relating to the Elections Clause for lack of standing (while keeping a remaining challenge under one person, one vote).

La Union Del Pueblo Entero v. Abbott (W.D. Tex.): consolidated litigation over Texas’s election law has slowed as the defendants continue to file motions to dismiss and plaintiffs continue to amend their complaints. Most recently, the Court stayed deposition of the Secretary of State in the United States’ lawsuit (which was also consolidated in this action) pending the motion to dismiss, and Texas is resisting other discovery requests that the court will address in the near future.

Cervini v. Cisneros (W.D. Tex.): the “Texas Trump Train” lawsuit against individuals who attacked the Biden-Harris bus in 2020. This week, a motion to dismiss was denied. The court found that under 42 U.S.C. § 1985 (a provision of the Ku Klux Klan Act), there was no need to demonstrate “race-based animus” in a conspiracy under the statute to threaten individuals lawfully entitled to vote “from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person” for federal office.

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“Oklahoma Supreme Court hears arguments in Jim Inhofe special election challenge”

Coverage in the Oklahoman:

The Oklahoma Supreme Court on Wednesday heard oral arguments in a case challenging the timing of the special election to fill the U.S. Senate seat being vacated by Jim Inhofe

Enid attorney Stephen Jones argues that because Inhofe hasn’t officially resigned yet, although he’s announced his intent to retire next year, Gov. Kevin Stitt was premature in setting a special U.S. Senate election to coincide with this year’s regularly scheduled elections. 

Justice M. John Kane IV called it a “novel question,” but with candidate filing for the special election just a few weeks away, the court won’t have a lengthy period of time to deliberate. 

I expressed skepticism here at ELB about the election, but the State’s brief in the case is quite good and has made me revisit some of my assumptions. The Court may never get to the merits (there are a couple of procedural hurdles to overcome to get there).

UPDATE: The Oklahoma Supreme Court has unanimously denied the application to assume jurisdiction in a one-sentence order. So the case is, in fact, tossed on procedural grounds (at least in this court).

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Monday’s Congressional Hearing on the Elections Clause

On Monday at 1:00 ET, the House Administration Committee will hold a hearing on “The Elections Clause: Constitutional Interpretation and Congressional Exercise.” It will conducted virtually. You can find a witness list and view the livestream at this link. I’ll be testifying along with Jack Rakove, Franita Tolson, and Kentucky Secretary of State Michael G. Adams.

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“The Meaning, History, and Importance of the Elections Clause”

Eliza Sweren-Becker and Michael Waldman have posted this draft on SSRN (forthcoming, Washington Law Review). Here is the abstract:

Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause’s original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules.

But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving as the primary constitutional basis for democracy reform legislation that passed the U.S. House of Representatives in 2019 and was reintroduced in 2021. Increased interest heightens the need for a deeper understanding of the intent and meaning of the Elections Clause. This Article fills a gap in the literature by providing a comprehensive analysis of the purpose, meaning, and interpretation of the Elections Clause by the Framers, early Congresses, and federal courts.

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“One GOP legal claim failed in 2020 but could change how future elections are run”

Jordan Wilkie for Carolina Public Press:

Each expert to whom CPP talked for this story said that, in election litigation in the United States, the motivation is always driven at least in part by the pursuit of power, and that is not limited to one political party over another. 

“In the history of battles over voting in this country, you’re going to find it’s rare that any of these actors have pure motives,” said Roberts, the UNC political science professor. 

“It’s almost all motives based on what’s going to help them in the short run, and that’s certainly the case here.” 

But Justin Levitt, law professor at Loyola Marymount law school, is not convinced that Republicans actually want to win their Elections Clause arguments. 

“It would not be the first time that hubris and lack of forethought caused a political party to take a whole bunch of moves that turned out to bite them in the rear a couple years down the line,” Levitt said. 

While the independent state legislature doctrine could help Republicans control federal election rules in states like North Carolina and Pennsylvania, it could actually be more harmful to the party’s national authority. 

“Believe me, the tradition and the history in both New York and California, says that, if unleashed, Democrats will have absolutely no trouble figuring out how to abuse their power,” Levitt said. 

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PA legislators ask SCOTUS to stay mail deadline ruling

(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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Franita Tolson: Taking the Elections Clause Seriously after Rucho v. Common Cause (Rucho symposium)

The following is a guest post from Franita Tolson, part of the symposium on Partisan Gerrymandering after Rucho:

In Rucho v. Common Cause, the Supreme Court held that a partisan gerrymandering claim presented a nonjusticiable political question because of the lack of judicially manageable standards.  In so holding, the Court was dismissive of the range of plausible approaches to address this problem, as commentators will undoubtedly discuss in the symposium this week.  In addition, the Court did not meaningfully engage whether there are principles grounded in the constitutional text and the Court’s own precedents that also preclude this abdication of its duty.  In particular, the district court had ruled in favor of the Rucho plaintiffs on their Elections Clause claim, finding that the North Carolina gerrymander exceeded the scope of the state’s authority to legislate the “Times, Places, and Manner” of congressional elections because the Clause “did not empower State legislatures to disfavor the interests of supporters of a particular candidate or party in drawing congressional districts.”

On appeal, the Supreme Court saved the Elections Clause argument for last and dismissed it in only a few paragraphs.  Like the plurality in Vieth v. Jublierer, the Rucho majority did not view the Elections Clause as a limit on gerrymandering; instead, the Court treated the Clause as a potential remedy for political inequality because it gave Congress the authority to “make or alter” state regulations, including those that governed redistricting.  In contrast, the district court treated the Elections Clause as a judicially enforceable limit on partisan gerrymandering, a holding that the Supreme Court referred to as “novel.”  Since the basis of the Elections Clause argument was that, by gerrymandering, representatives were choosing their voters instead of vice versa, the Court found that this allegation was really an argument that the government was non-republican in form in violation of the Guarantee Clause of Article IV, which the Court has long held to be nonjusticiable. 

The Court’s approach ignored that its own jurisprudence shows that the district court’s Elections Clause holding was not novel, but has some basis in precedent.  In U.S. Term Limits v. Thornton, for example, the Court struck down an Arkansas constitutional provision that imposed term limits on members of Congress because the age, citizenship, and residency requirements in the Qualifications Clauses were exclusive.  The Court found that states did not possess the power to add qualifications prior to ratification therefore this authority could not be reserved to them through the sovereignty protected by the Tenth Amendment.

Importantly, the Court also rejected the argument that the Elections Clause empowered states to impose term limits on members of Congress, finding that the Clause “was a grant of authority to issue procedural regulations, and not [ ] a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional constraints.”  Similarly, Cook v. Gralike held that a Missouri law requiring that a candidate’s support for term limits be notated next to their name on the ballot was an unconstitutional attempt to dictate electoral outcomes in violation of the Elections Clause.  The Court found that the Missouri law was “plainly designed to favor candidates who are willing to support the particular form of a term limits amendment set forth in its text and to disfavor those who either oppose term limits entirely or would prefer a different proposal.”

By using their power to prescribe the “manner” of federal elections in a way that explicitly and intentionally disfavored members of one political party, the legislators in North Carolina and Maryland engaged in the exact behavior that Thornton and Cook prohibits.  In fact, the Court has long recognized that there must be judicially enforceable limits on this type of overtly partisan behavior, and its attempt to place gerrymandering beyond judicial purview by framing the Elections Clause claim as a Guarantee Clause issue is disingenuous at best.  In the watershed case of Baker v. Carr, the Court explicitly rejected the idea that “political cases” involving legislative reapportionment necessarily equated to “political questions” that it could not resolve, overruling Colegrove v. Green which had sought to keep the Court out of the “political thicket.”  And like the Rucho majority, Justice Frankfurter’s dissent in Baker challenged this premise by treating the new Equal Protection cause of action as a Guarantee Clause claim in disguise.     

Despite Justice Frankfurter’s warnings about the political thicket, however, the Baker Court recognized the importance of the judicial role in ensuring a healthy and robust democratic process; after all, the malapportioned districts at issue in Baker had protected incumbents from any meaningful political competition for decades.  While the Equal Protection claim in Baker v. Carr was novel, both the constitutional text and precedents like Thorton and Cook suggest that the Elections Clause argument raised in Rucho was not and should have received more attention from the Court.  The legal scholarship also has not been silent about the potential of the Elections Clause to serve as a judicially enforceable limit on gerrymandering, as this influential article by Jamal Greene recognized more than a decade ago.  Rucho, by refusing to use the available tools to address massive political inequality, reaffirms that the Warren Court era is over; that institutionally the Court is now closer to Colegrove than to Baker; that precedent has limited value; and most importantly, that the Court will not save our republic.   

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