Foley, Muller discuss Moore v. Harper oral argument at Lawfare
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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… Continue reading
Moore v. Harper oral argument recap roundup
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.… Continue reading
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… Continue reading
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… Continue reading
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… Continue reading
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… Continue reading
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… Continue reading
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… Continue reading
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,… Continue reading
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… Continue reading
“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… Continue reading
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… Continue reading