You can find the witness list, written testimony, and video link here. Today’s hearing before the House Administration Committee starts at 1:00 ET and will be livestreamed. I’ll be testifying, along with Jack Rakove, Franita Tolson, and Michael G. Adams.
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.
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.
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.
(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
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.
The NY Times Editorial Board calls HR 1 the “Merrick Garland of reform legislation.”
Mark Stern for Slate.
Lyle Denniston for Constitution Daily.
Derek Muller has posted this draft on SSRN (forthcoming, FSU Law Review). Here is the abstract:
Arizona State Legislature v. Arizona Independent Redistricting Commission might be viewed as a dispute about the control over redistricting, with a heavy emphasis on the perceived problems of and solutions to partisan gerrymandering and incumbent entrenchment. Or the case might be about the power of the people to wrest control from an unresponsive legislature and pass their own laws via ballot initiative. But that is not really this case. This Article notes that it is something more nuanced. This case is less about the ballot initiative or about partisan gerrymandering, and more about a delegation of legislative power from the legislature to an unelected agency.
The case turned almost exclusively on the definition of the word “Legislature” as it appears in the Constitution, which has little precedent in Supreme Court opinions except for a couple of century-old cases of tangential relevance. But there is also a rich history of interpreting and constructing the Elections Clause — but it has occurred in Congress and in the states. These historical election disputes were all but absent in the Supreme Court, effectively ignored.
This Article examines the dispute over Arizona’s independent redistricting commission largely through a critique of the delegation of power from the legislature to an unelected entity. It then examines the historical records from two sources. First, it scrutinizes pre-Seventeenth Amendment discussions about the power to delegate legislative power to the people. Second, it consider and congressional adjudications about election disputes concerning the proper role of the state legislature and delegations of the lawmaking power to other entities. These two examinations conclude that the historical understanding of the power of the “Legislature” precluded a delegation of its power to another entity. It concludes with some concerns about several justices’ conclusions in the case, along with parting thoughts about the impact of these historical records in future litigation.
Justin Weinstein-Tull has posted this draft on SSRN (forthcoming, Michigan Law Review). Here is the abstract:
This Article provides the first comprehensive account of non-Voting Rights Act federal voting laws. Section 5 of the Voting Rights Act — long the most effective voting rights law in American history — was disabled by the Supreme Court in Shelby County v. Holder. Section 2 of the Voting Rights Act is in the crosshairs. As the Supreme Court becomes more hostile to race-based anti-discrimination laws like the Voting Rights Act, Congress will turn to race-neutral, election administration-based reforms to strengthen the right to vote. Indeed, many proposals for reform post-Shelby County have taken this form. The laws examined in this Article — the National Voter Registration Act of 1993 (NVRA), the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), and the Help America Vote Act (HAVA) — regulate major aspects of the elections process: voter registration, absentee ballots, voting machine technology, and accessibility for disabled persons. These statutes, and the kind of election regulation they illustrate, both represent the future of federal election law (for better or worse) and present previously unstudied challenges with implications for election law broadly.
Federal legislation that seeks to regulate and standardize elections implicates complicated relationships among federal, state, and local governments. This domain of “election law federalism” has two distinct features: 1) unusually expansive federal power to legislate pursuant to the Elections Clause; and 2) widespread state prerogative to delegate election responsibilities to local government. Because of these unique characteristics, federal election laws of the kind discussed in this Article run in perceived tension with traditional federalism doctrines like the anti-commandeering principle and state authority to organize its own subdivisions. That tension has led to enforcement difficulties and widespread noncompliance with the statutes. This Article proposes reforms that would allow federal election legislation to accommodate the realities of the elections system and more effectively optimize the roles of federal, state, and local governments within the elections system.
The Justice spoke at Duke. She said this about Citizens United (via Adam Liptak):
The court’s worst blunder, she said, was its 2010 decision in Citizens United “because of what has happened to elections in the United States and the huge amount of money it takes to run for office.”
And she said this about the recent Arizona redistricting decision (via HuffPo):
The words in the Arizona case were “the legislature thereof.” What were the Founding Fathers thinking about? They were thinking about who had a legislative function. There was no such thing in those days as the initiative or referendum, those developed later, but those are lawmaking functions, so I think it was entirely reasonable to read the Constitution to accommodate whatever means of lawmaking the state had adopted, rather than say, “No, the only way you could make law that counts for this purpose is by the legislature thereof.” We can’t know for sure because we have no way of convening with the Founding Fathers, but I think if they knew of the existence of the people’s vote through the initiative or referenda, they would have said, “That’s lawmaking.” What we had in mind is who makes the law for the state. Otherwise you’d freeze things as they existed, it would allow no room for affirmative development, no room for the voice of the people, which is what the initiative did.
Michael Morley has posted this draft on SSRN. Here is the abstract:
The Supreme Court’s recent ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission (“AIRC”) lays to rest several pressing disputes concerning the Elections Clause of the U.S. Constitution, but other important controversies remain. This short essay offers a critical examination of the “new” Elections Clause, as it remains in the wake of this momentous ruling. The essay contends that the Court’s ruling is best viewed as either a legal process or representation-reinforcing interpretation of the Clause. From either perspective, the Court’s methodology can have important consequences for how it interprets the Constitution’s other election-related provisions. This essay then explores several issues, apart from the validity of independent redistricting commissions, that AIRC resolves, including the permissibility of delegations under the Elections Clause, the Court’s repudiation of the independent state legislature doctrine, and the likely permissibility of changing the process through which a state awards its electoral votes through a public initiative. The essay concludes by identifying major remaining controversies under the Clause, most notably whether it imposes a constitutionally mandated “plain meaning” canon of construction for state election laws.
Looking forward to reading this!