Monthly Archives: March 2016

“Cruz predicts Trump won’t be able to mount a third-party run”


Donald Trump won’t be able to mount a third-party bid for president if he loses the Republican nomination, Ted Cruz said Thursday.

“He doesn’t have the option of running as a third-party [candidate],” the Texas senator told Wisconsin radio host Charlie Sykes. “Quite a few states across the country have what are called sore-loser laws, that once you run as a Republican and lose, you don’t get to then turn around and file on the ballot as an independent, so that will not be an option available to him.”

Michael Kang has written a key paper on sore loser laws. Some may not apply to presidential elections, and there may be some constitutional issues with such laws as well.

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“Constitution Check: Is Ted Cruz’s eligibility for the presidency a serious issue?”

Lyle Denniston:

One of the reasons that the issue continues to linger uncertainly as a constitutional matter is that there have been serious barriers to a ruling that courts have not been able to get past.  One is whether anyone can claim a sufficient legal injury from an ineligible presidential candidacy, to satisfy Article III’s limits on federal courts’ power to decide.  Another is that the question is often treated as a “political question,” beyond the authority of the courts because its resolution is lodged with the Electoral College and with Congress.  Another is that the issue usually does not get explored fully before the issue goes away as legally moot because the candidate either did not get a party nomination, or lost an election.

So far, none of the cases involving the Ted Cruz candidacy has resulted in a final ruling, one way or the other, in state or federal courts.   If the Texas senator does not win the GOP nomination, then, of course, the issue will fade away again.  But that is not to suggest that it is not a serious constitutional question that could use an answer – some day.   In the meantime, the voters will be the ones who decide.

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“A $200,000 Ballot Error and Other Misprints at New York City’s Board of Elections”


The New York City Board of Elections has a proofreading problem — and even small mistakes are turning out to be costly.

The board was forced to spend more than $200,000 in overnight postage last month to send corrected absentee ballots for the coming presidential primary, after it discovered an error in the Spanish version of the ballot.

The mistake was discovered around the same time the board realized it had made another error: A recent notice sent to 60,000 newly registered voters included the wrong date for a Sept. 13 primary election for state and local offices. The board then mailed out a correction that may have inadvertently confused voters about the date of the higher-profile presidential primary on April 19.

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AP Gets Newby-Kobach Correspondence


A Kansas county elections official used close ties to one of the nation’s leading advocates of voting restrictions to help secure the top job at a government agency entrusted with making voting more accessible, and then used the federal position to implement an obstacle to voter registration in three states.

An email provided to The Associated Press through open records requests offers a glimpse into the mindset of Brian Newby, executive director of the U.S. Election Assistance Commission, who decided — without public comment or approval from bosses — that residents of Alabama, Kansas and Georgia can no longer register to vote using a national form without providing proof of U.S. citizenship.

As a finalist for the job of executive director, Newby said in a June email to his benefactor, Kansas’ Republican Secretary of State Kris Kobach, that he was friends with two of the commissioners at the federal agency, and told Kobach: “I think I would enter the job empowered to lead the way I want to.”

Voting rights advocates were stunned by Newby’s action once he got the job and have sued to overturn it. Activists say it flies in the face of the commission’s mission to provide a simple, easy form to encourage voter registration….

Kobach had appointed Newby to be a county elections commissioner in Kansas, and helped him get the federal job that he took in November.

“I wanted you in the loop, in part because of other issues in the past with the EAC,” Newby emailed Kobach. “I also don’t want you thinking that you can’t count on me in an upcoming period that will tax our resources.”

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“Originalism and the ‘one person, one vote’ principle”

Ilya Somin:

Prominent legal scholar Earl Maltz has an important new article arguing thatReynolds v. Sims (1965) and other Supreme Court decisions requiring state governments to follow the “one person, one vote” rule for apportioning legislative districts cannot be squared with the original meaning of the Constitution. Maltz also contends that this conclusion greatly weakens the case for originalism, perhaps to the point of undermining it completely. He emphasizes that an originalist judge faced with unequally apportioned state legislatures where some voters have much greater representation than others, will be “powerless to act against regimes that are structured in a manner that is completely inconsistent with the most fundamental tenets of democracy.” These issues are particularly significant, as the Supreme Court is now considering a case about the meaning of the “one person, one vote” principle, and what it entails.

Maltz makes a strong case that the one person, one vote cases are incompatible with the original meaning. But his argument that this is a major strike against originalism is unpersuasive. Like Maltz, I agree that originalism should be judged at least in large part on consequentialist grounds: based on whether following its dictates will effectively promote such values as liberty, justice, and happiness. By its fruits shall originalism be known; and the same goes for rival theories, such as living constitutionalism. But this particular fruit is far more palatable than Maltz suggests. While no constitutional theory should be discarded because it leads to bad results on any one issue, it would indeed give me pause if – as some critics claim – originalism requires judges to uphold laws mandating racial segregation or forbidding interracial marriage. I have no such hesitation about allowing unequal apportionment.


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“Is It O.K. if Your Vote Is a Lie? Ask a Canadian”

NYT’s The UpShot:

After an Upshot article about strategic voting — “You Say You Loathe Ted Cruz? You Still Might Want to Vote for Him”— one reader had a question:

“How about the idea of being honest with your vote? Isn’t this strategy another form of telling a lie?”

Perhaps Canada can offer neighborly advice, after recently living through a national debate over the ethics of voting for someone other than your first choice, as a means to an end.

An article in The National Post set the scene last October.

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“The Trump-Cruz Louisiana Delegate Fight Could Be First Sign Of Turmoil To Come”

Tierney Sneed:

Political observers have wondered for months whether Donald Trump’s unconventional, “political outsider” campaign would put him at a disadvantage if the Republican presidential race were to come down to the wire. Now, a fight stemming from the complicated process of selecting convention delegates suggests it has.

The Trump campaign is currently in a tizzy over a development regarding Louisiana’s delegation to the Republican National Convention. While Trump narrowly defeated Sen. Ted Cruz (R-TX) in the state’s primary earlier this month, a recent Wall Street Journal report suggested that Cruz will head to Cleveland with more Louisiana delegates than the real estate mogul, prompting Trump to accuse Cruz of trying to “steal” delegates.

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“Super PACs and Trump’s Wife: How a Photo Dispute Highlights Weakness in Campaign Finance Rules


There’s no evidence to support Donald Trump’s claim that Ted Cruz played a role in a super PAC’s attack on his wife.

But federal rules barring coordination between candidates and the super PACs that support them have been so rarely enforced that even if Trump were right, it’s uncertain the Cruz campaign would be penalized.

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“Suppress Votes? I’d Rather Lose My Job”

Rep. Sensenbrenner NYT oped:

The Voting Rights Act of 2015, which has more than 100 co-sponsors, 13 of them Republicans, has been introduced in the House and referred to the Judiciary Committee, where it awaits action. Some of my colleagues view the bill as unnecessary because of the progress we have made against voter discrimination. The bill’s structure, however, ensures that preclearance will apply only if in fact discrimination occurs.

Ensuring that every eligible voter can cast a ballot without fear, deterrence and prejudice is a basic American right. I would rather lose my job than suppress votes to keep it.

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