Category Archives: Elections Clause

President Trump Issues Dangerous Executive Order That Would Shift to Presidency More Power Over the Conduct of Federal Elections and Potentially Disenfranchise Millions of Voters

election administration, Election Assistance Commission, Election Meltdown, election subversion risk, Elections Clause, The Voting Wars

I am still making my way through this new Trump executive order on election administration (helpfully posted by Chris Geidner). There is a lot in here, but let me make four initial points as I still digest this.

  1. An executive power grab.This executive order, if it could survive the inevitable judicial challenge, would severely shift power over federal elections into the hands of the Presidency. We’ve talked many times in the past about how limited the President’s power is over federal elections: power is mostly in the hands of states (and substate units like counties), with Congress setting certain rules for the conduct of elections (such as through the National Voter Registration Act of 1993). After the disputed 2000 election, when Congress passed HAVA, it set up an independent bipartisan agency called the U.S. Election Assistance Commission to do certain things like certifying voting equipment and doling out funds to states for voting tech upgrades. Trump’s order in a number of places purports to direct the EAC to do certain things. He doesn’t have that power, unless the courts accept some aggressive version of the unitary executive theory that’s been percolating in other cases. If a President can control the EAC, it could direct the agency to do all kinds of things that could benefit the President’s party. It would flout the bipartisan, balanced approached of the EAC.
  2. Disenfranchising millions of voters. Right now, under the NVRA, any eligible voter can register to vote in any state using a “federal form,” sometimes called a postcard form, that requires the information Congress deemed sufficient to establish eligibility, including citizenship, for voting. The EO would direct the EAC to change the federal form to require documentary proof of citizenship for voting. This would prevent only a tiny amount of noncitizen voter registration but stop millions of eligible voters, who do not have easy access to documents such as passports from registering to vote. Just look at the studies that have been done about the effects of the SAVE Act, currently being considered by Congress, that would do similar things. The aim here is voter suppression pure and simple. Even if the EAC has the power to change this form, the question is whether the President would have the power to order it.
  3. Ending the receipt of ballot after election day. The EO would direct the DOJ to take action such as suing states like California to prevent them from accepting ballots received after election day in federal elections. It would also prevent the EAC from giving states that accept later arriving (but timely mailed) ballots any federal money for voting upgrades. It is based upon a bonkers theory about how to understand federal law involving a uniform election day (a bonkers theory that unfortunately has been accepted by the Fifth Circuit). The EO would try to take the Fifth Circuit opinion nationwide, and have the President order the EAC to do it.
  4. The order would let DOGE/DHS subpoena voting records, in an effort to prove supposed voter registration fraud. DOGE certainly has no power to kick people off rolls. But they could make a lot of noise trying to claim they’ve found fraud when they find that voter registration rolls are not being kept up to date. There was tremendous pushback during the first Trump administration when the Pence-Kobach commission tried to get such records, including pushback from conservative Republican election administrators in the states. We will see what happens this time. (I write about this in my 2020 book, Election Meltdown.)
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Divided Ninth Circuit finds Congress holds power to regulate presidential elections as it does congressional elections

court decisions, Elections Clause

Justin helpfully runs through the major elements of the Ninth Circuit’s holding in Mi Familia Vota v. Fontes, but I wanted to highlight a divide in the opinion I wrote about back in 2022 just as this bill was introduced in Arizona (which I won’t rehash in this post!). From the majority opinion:

Aside from the NVRA’s plain language, our precedent also requires us to hold that Congress has the power to control registration for presidential elections. In 1934, the Supreme Court rejected a narrow framing of Congress’s power over presidential elections, like the view argued here by Republican Appellants. The Supreme Court reasoned:

The only point of the constitutional objection necessary to be considered is that the power of appointment of presidential electors and the manner of their appointment are expressly committed by section 1, art. 2, of the Constitution to the states, and that the congressional authority is thereby limited to determining ‘the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.’ So narrow a view of the powers of Congress in respect of the matter is without warrant.

Burroughs v. United States, 290 U.S. 534, 544 (1934). The Court squarely held that Congress had the power to pass legislation to protect the integrity of the federal election process in the presidential election. Id. at 545; see also Buckley v. Valeo, 424 U.S. 1, 13 n.16 (1976) (citing to Burroughs as more generally “recogniz[ing] broad congressional power to legislate in connection with the elections of the President and Vice President”).

We have also recognized Congress’s power to regulate all federal elections under the NVRA. See Voting Rts. Coal. v. Wilson, 60 F.3d 1411, 1413–14 (9th Cir. 1995) (rejecting a challenge to the constitutionality of the NVRA in part because “the Supreme Court has read the grant of power to Congress in Article I, section 4 [of the U.S. Constitution] as quite broad” and has endorsed that “[t]he broad power given to Congress over congressional elections has been extended to presidential elections” (citing Burroughs, 290 U.S. at 545)).

We hold that H.B. 2492’s requirement of DPOC to vote in presidential elections is preempted by Section 6 of the NVRA.

And from a part of Judge Bumatay’s lengthy dissent on this issue:

But, as a matter of constitutional text, the Elections Clause doesn’t govern presidential elections. The Elections Clause of Article I provides that “[t]he 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 chusing Senators.” U.S. Const. art. I, § 4, cl. 1 (emphasis added). Under that Clause, States have the “duty” to set the time, place, and manner of holding congressional elections, but Congress has the power to “alter” those regulations or “supplant them altogether.” See ITCA, 570 U.S. at 8. The Court has held that the “Times, Places, and Manner” of holding elections “embrace authority to provide a complete code for congressional elections,” including regulation of voter registration. Id. at 8–9. But the Clause is expressly limited to “Elections for Senators and Representatives.” Thus, while the Elections Clause may give Congress power over registration in congressional elections, it doesn’t extend that authority over presidential elections.

Other Clauses of Article II cover presidential elections. First, the Electors Clause lays out much of the groundwork—granting nearly all authority to the States. It provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors[.]” U.S. Const. art. II, § 1, cl. 2. Unlike the grant of a revisory power to Congress in the Elections Clause, the Electors Clause gives the States sole power over the “Manner” of appointing electors to the electoral college. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 805 (1995) (describing the Electors Clause as the sort of “express delegation[] of power to the States” by the Constitution necessary for them “to act with respect to federal elections”).

Second, the Time of Chusing Clause provides a narrow role for Congress in presidential elections. The Time of Chusing Clause says that “Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” U.S. Const. art. II, § 1, cl. 4. So rather than having any power over the “Manner” of holding congressional elections, Congress merely has authority to
choose the date of the presidential election and date of the electoral college vote. . . .

Together, these Clauses form a cohesive structure governing federal elections—States and Congress share authority over congressional elections, but States retain near-exclusive power over presidential elections. Thus, the Constitution forecloses congressional authority to control voter-registration requirements for presidential elections. . . .

And no controlling precedent alters the States’ exclusive power over presidential elections. Citing Ex parte Yarbrough, 110 U.S. 651 (1884), and Burroughs v. United States, 290 U.S. 534 (1934), the district court claimed that the Court has recognized Congress’s power to regulate presidential elections. But that’s wrong. If anything, these precedents reaffirm the principle that Congress’s role in presidential elections is limited, and that the manner of appointing presidential electors is within the “exclusive” “power and jurisdiction of the state[s].” See McPherson, 146 U.S. at 35. Even in the modern era, the Court has continued to express that “the state legislature’s power to select the manner for appointing [presidential] electors is plenary[.]” Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam). . . .

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Sixth Circuit finds no standing for Michigan legislators to challenge ballot initiative under Elections Clause

Elections Clause, voter initiatives

Opinion in Lindsey v. Whitmer by Chief Judge Sutton, joined by Judges Bush and Murphy (excerpts lightly revised):

In 2022, voters passed Proposal 2, which created new voter-identification options, state-funded prepaid postage for absentee ballots, secure ballot drop boxes, and early voting. The provisions in Proposals 2 and 3 apply to state and federal elections.

Eleven Michigan state senators and representatives took issue with this last feature of the election amendments—their application to federal elections. They filed this action in federal court under 42 U.S.C. § 1983. They claimed that the election amendments violated the U.S. Constitution’s Elections Clause, which says that the “Times, Places and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” As the claimants see it, the Clause allows only state legislatures, not the citizens themselves, to set the time, place, and manner of federal elections. In bringing this lawsuit, the legislators sought to enjoin Michigan executive-branch officials from enforcing the two amendments. . . .

This case starts and finishes with injury in fact . . . .

In the context of challenges to legislative power, the courts distinguish individual injuries of legislators from institutional injuries of a legislature. . . .

In today’s dispute, the Michigan legislators fall within the general rule, not within these narrow exceptions. They filed this lawsuit as individuals, not as approved representatives of their legislature. They do not allege that they passed election laws foreclosed by the 2018 or 2022 state constitutional amendments. And they do not allege that they command votes sufficient to pass contrary election laws in the future. . . .

The legislators insist that the Elections Clause confers upon individual lawmakers a right to vote on federal election regulations and any deprivation of that right injures them. We decline this invitation to bore a good-for-Elections-Clause-only hole in Coleman and Raines. True, a concrete injury may “include harms specified by the Constitution itself.” TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021). But if such a right existed, our caselaw places it with “Legislature[s],” not legislators. U.S. Const. art. I, § 4. That’s why Arizona’s legislature may mount an Elections Clause challenge to “a redistricting plan” that would “nullif[y]” future redistricting-related bills. Ariz. State Legislature, 576 U.S. at 804. And that’s why the Court has indicated that individual legislators may not. See id. at 801–02.

The legislators point out that the Michigan Constitution vests legislative power over elections in individual lawmakers, suggesting that they must have suffered an injury as a result. But just as Congress cannot create standing in Article III courts that does not exist, neither may the Michigan Constitution. See TransUnion, 594 U.S. at 426; Raines, 521 U.S. at 818. The argument fails on its own terms anyway. The Michigan Constitution vests the legislative power in a “senate” and “house of representatives,” not individuals. Mich. Const. art. IV, § 1. That separate lawmakers cast separate votes does not alter the reality that legislators do not vote “as a prerogative of personal power.” Raines, 521 U.S. at 821. . . .

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Where the Arizona proof of citizenship dispute might lead

election law and constitutional law, Elections Clause, Supreme Court

Rick P. earlier noted that Republican National Committee v. Mi Familia Vota is pending for an emergency application for a stay before the Supreme Court. There are complicated issues about the procedural posture and the timing, including which way a case like Purcell cuts after two separate Ninth Circuit panels weighed in with conflicting results, which I won’t discuss in this post. We might see some emergency order that could affect a small but non-trivial percentage of voters in Arizona in their ability to participate in the presidential election (they are already excluded from participating in the state election and already permitted to participate in the congressional election). And there is a separate issue of vote-by-mail writ large at stake in the case, but that won’t be the focus of this post.

Back in March 2022–two and a half years ago!–I sketched out what might be at stake with respect to this particular Arizona law in the long run (i.e., if the Court grants cert in this case). In brief, some federal laws purport to regulate federal elections (both congressional and presidential), but their ability to regulate presidential elections might be called into question. Some provisions (e.g., the Fifteenth Amendment or the Spending Clause) might provide an adequate basis for a given law being upheld. But it could be quite disruptive to others, in the event a state opted not to follow that law.

Continue reading Where the Arizona proof of citizenship dispute might lead →
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Federal courts toss challenges by state legislators in Pennsylvania, Michigan over lack of standing

Elections Clause

The most recent edition of our federal courts casebook (with co-authors Arthur Hellman, David Stras, Ryan Scott, and Andy Hessick), I took some time reshape some of the focus of the chapter on “standing” to expound upon some increasing recurring themes. One of those themes was legislator and legislative standing. Legislators generally lack standing in federal court beyond what ordinary citizens or voters have, except in some rare (and perhaps isolated and unique) cases. In the elections context, these claims keep returning, with fairly predictable results.

In Keefer v. Biden (Pennsylvania) and Lindsey v. Whitmer (Michigan), federal courts in recent weeks have tossed challenges filed by state legislators under the Elections Clause. Both cases argued that some non-institutional legislature action, such as executive action (from President Biden) or ballot initiative (in Michigan), ran afoul of the Elections Clause. Both were thrown out for lack of standing. Despite the fact that the legislators wanted to challenge the action, their real concern was that the institutional legislature had been harmed.

Elections Clause challenges do not always fail for procedural reasons in federal court–see the recent New Jersey litigation citing Cook v. Gralike. But to the extent they attempt to assert something resembling the kinds of claims in Moore v. Harper, the paths forward remain quite limited.

But the cases are a constant reminder of the terrific number of election litigation challenges we continue to see, and how many fail to get to the merits for issues at the outset of the litigation.

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“WV will NOT accept voter registrations collected by Biden Administration”

election administration, Elections Clause, military voting, NVRA (motor voter), The Voting Wars

Justin here.  The title of this post is the header of the email version of a press release issued earlier this week by the office of WV Secretary of State “Mac” Warner, currently running for governor.

I’m pretty sure the title’s not true. But we’ll get there in a sec.  (It’s not the only piece of inaccurate information in the release.)

The press release is a broadside against a fictional version of Executive Order 14019, the President’s directive that federal agencies review their authorities to “consider ways to expand citizens’ opportunities to register to vote and to obtain information about, and participate in, the electoral process.”  (Disclaimer: I had no part in drafting the EO, but in my role as a federal official, I had a hand in helping to implement it, including listening to state election officials — Secretary Warner among them — during consultative conversations that Secretary Warner asserts didn’t exist.)

The release claims that the EO is an unconstitutional direction to federal agencies to “take over voter registration processes from states.”  It cites, as support, half of the constitutional foundation for the EO, in noting that “Article 1 Section 4 of the U.S. Constitution says the times, places, and manner of holding elections, shall be left to the state legislatures.” 

There are other words after that snippet, of course: Congress may at any time change that default.  And Congress has.  The NVRA directs states to designate specific government offices as one-stop voter registration agencies — including federal recruitment offices for the armed forces, as a means to facilitate electoral participation by servicemembers.  Those recruitment offices are part of the Biden Administration.  And contrary to the Secretary’s email header, it’s hard to imagine that Secretary Warner, himself a veteran, plans to refuse the servicemembers’ voter registrations collected there.

The NVRA also permits states to designate as one-stop registration agencies other state offices, and offices of federal agencies with the agreement of those offices.  And it requires, to the greatest extent practicable, federal executive agencies to cooperate with states in effectuating those designations. 

The heart of the EO is just carrying out this congressional demand.  (There are other bits too, like explaining the proper and improper uses of agency funds, but the heart is effectuating the NVRA’s mandate.) 

Nobody’s taking over voter registration processes from the states.  Several states not attempting to turn customer service into conspiracy theory have worked with agencies to help constituents get registered to vote while they’re doing other government paperwork.  In 30 years of the NVRA’s existence, the first state to designate a federal entity’s office as a voter registration site was Kansas, when it designated Haskell Indian Nations University (operated by the Department of the Interior) in May 2022.  The second was New Mexico, designating the Southwestern Indian Polytechnic Institute (also operated by DOI), two months later.  Kentucky and Michigan and Pennsylvania have announced partnerships with the Department of Veterans Affairs to let veterans more efficiently register to vote.  Those federal agencies are ready to partner with red states and blue states and purple states in part because the executive order told them to be.

VA sites can only be designated as one-stop voter registration agencies if states step forward: without West Virginia’s blessing, no VA site in West Virginia will be acting as a designated site.  I think it’s great that veterans in Kentucky will have more opportunities to smoothly register to vote while they’re already filling out paperwork, and a shame that there’s resistance just over the border to offering other veterans the same — but no matter how politically convenient it may be to conjure into rhetorical existence a strawman federal takeover, EO 14019 in no way limits West Virginia’s continuing choices about how best to serve its would-be voters.  If the press release portends a fight, it’s a fight with nobody on the other side.

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Some thoughts on state power to conduct presidential primaries (and why the Moore v. Harper claim may really be legally meritless)

ballot access, Elections Clause

On the heels of some arguments raised by Marty Lederman and challenged by Richard Bernstein, I wanted to weigh in on Professor Lederman’s side–and in doing so, turn to agree with Mr. Bernstein’s sharp observation the Moore v. Harper issue of the Legislature Thereof Clause is likely legally meritless and shouldn’t receive any real attention from the Supreme Court.

Continue reading Some thoughts on state power to conduct presidential primaries (and why the Moore v. Harper claim may really be legally meritless) →
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Election litigation after Moore v. Harper–lessons from habeas review of state courts

Elections Clause, legislation and legislatures

This is the first in a few posts looking at litigation comparable to the issues in Moore v. Harper to see if any lessons can be learned from those areas. I started with the Takings Clause here. I’ll look at habeas next.

Continue reading Election litigation after Moore v. Harper–lessons from habeas review of state courts →
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The limited path for litigation after Moore v. Harper was set out in a series of related cases between 2004 and 2007

Elections Clause, legislation and legislatures

ELB readers may recall my post last year on Colorado General Assembly v. Salazar (2004). There, the Court, over three dissenting justices, denied cert in a Legislature Thereof Clause dispute under the Elections Clause in Colorado’s redistricting. A lot of parallels arose in that case that came out in Moore v. Harper.

Yesterday, I blogged about why I thought there might be a lot of litigation, but not a lot of success. In particular, I want to focus on one element of this–and one lesson learned from the litigation that followed Colorado General Assembly. It is going to be difficult (but not impossible) to get lower federal courts to hear these cases for a variety of procedural reasons.

Continue reading The limited path for litigation after Moore v. Harper was set out in a series of related cases between 2004 and 2007 →
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A few more quick thoughts on Moore

Bush v. Gore reflections, election law and constitutional law, Elections Clause, legislation and legislatures, redistricting, Uncategorized

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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Moore v. Harper vindicates Rehnquist’s opinion in Bush v. Gore

Elections Clause, Supreme Court

The top line takeaway of Moore v. Harper is this: the Supreme Court has slammed the door shut on the argument that the state constitution or state judiciary cannot constrain the state legislature exercising power under the Elections Clause.

But Part V of the opinion, as Rick H. and Rick P. have already blogged, expressly leaves open the question of when state courts go “too far.” Part V opens, “Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein.” And later, “We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

In doing so, the Court looked to Bush v. Gore (2000):

Chief Justice Rehnquist, joined in a concurring opinion by JUSTICE THOMAS and Justice Scalia, acknowledged the usual deference we afford state court interpretations of state law, but noted “areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.” Id., at 114. He declined to give effect to interpretations of Florida election laws by the Florida Supreme Court that “impermissibly distorted them beyond what a fair reading required.” Id., at 115. Justice Souter, for his part, considered whether a state court interpretation “transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the ‘legislature’ within the meaning of Article II.” Id., at 133 (Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting).

In other words, the Court–and no justice dissented from this view–seems entirely amenable to the concept promulgated by the Chief Justice, that at some point state courts go “too far” in interpreting state law.

I pointed out back in March 2022 here in a post-Rucho analysis ahead of Moore that this “weak” version of an interpretation of the Legislature Thereof Clauses had some broad support, even among skeptics. After oral argument, I blogged about how there was strong consensus on the Court about some “middle way”–a narrow standard that would apply to some outlier cases. The Court here did, indeed, find such a boundary–but it failed to coalesce around what that boundary looks like: “We do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause. The questions presented in this area are complex and context specific.”

Justice Kavanaugh writes separately to point out that “deference is not abdication.” The varying approaches, whether Rehnquist’s opinion in Bush v. Gore or the Solicitor General’s articulation of the standard in Moore, for determining when a state court goes too far are likely not that different, and that… well, the Court may decide it another day.

In other words, the theory behind Rehnquist’s opinion has broad support–a state court can go “too far.” But the articulation of that theory–and, of course, the application of that theory in a given case–remain disputed.

Part III of Thomas’s dissent (here, joined by Justice Gorsuch) expresses significant concerns with this approach. True, Part II of his opinion suggests that a state court cannot control “what substantive laws can be made for federal elections”–surely a limitation of when a state court goes “too far.” But the narrower approach by the majority, he understandably worries, “opens a new field for Bush-style controversies over state election law.” Part III is ripe with open questions for future litigation (or law review article exploration!).

I am probably less worried than other bloggers here or than Justice Thomas about how this plays out on the ground. I have no doubt that there will be a new tranche of “Bush-style” election litigation. But the procedural posture is less likely, as he puts it, “to demand that federal courts develop some generalized concept of ‘the bounds of ordinary judicial review.'”

First, if the fundamental problem is state courts construing state law beyond what the Legislature Thereof Clauses permit, the solution is likely not a collateral attack in the district courts but a petition for certiorari to the Supreme Court, which will, I assume, dismiss the overwhelming majority without explanation.

Second, if collateral attacks do arise, they will likely arise in a different posture (e.g., state executives going “too far”–a question not addressed in this case, but the kind at issue in 2020 in the Eighth Circuit’s decision in Carson v. Minnesota) or will face significantly jurisdictional hurdles (e.g., Rooker-Feldman).

Third, state courts are on notice. True, it’s possible some are emboldened in the judicial terms ahead (I worry, for instance, specifically about hotly-contentious state courts in closely-contested election states that are facing changing personnel dynamics, like Wisconsin). Alternatively, they will likely explain how their decisions naturally follow from previous precedent and remain with the heartland of ordinary judicial review. I think Rick P.’s post last year helpfully identifies some of the challenges of this approach, depending on the level of generality one uses in describing past precedent. But my instinct is that if state courts recognize that some explanation of their trajectory is necessary, it will lessen the likelihood of running afoul of any Part V standard from Moore.

There is no question the opinion leaves open litigation routes for challengers and uncertainty for elections in the years ahead–as Thomas points out, “some of the most politically acrimonious and fast-moving cases that come before them.” And we’ll see how it plays out in the months ahead.

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

Elections Clause, Supreme Court, Voting Rights Act

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

Elections Clause, Supreme Court

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!

Continue reading “Final judgment,” not mootness, at issue in latest Moore v. Harper twist →
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