Category Archives: Elections Clause

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):

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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.

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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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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 need 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.

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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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