This essay focus on the election law implications of the new book by Jeffrey Sutton, Chief Judge of the Sixth Circuit. Bottom line: given all the challenges confronting the operation of the electoral process in the United States currently, now is the time for especially creative use of states as laboratories of democracy. While some of what’s being done to combat gerrymandering fits this description, there is much more experimentation with democratic procedures (all of which would be consistent with the basic federal constitutional guarantee of equal opportunity to participate in the electoral process) that could occur. (Derek’s post from a few days ago is along the same lines.)
Monthly Archives: February 2022
“Democracy May Depend on a New Partisan Battleground: Races for State Secretary of State”
David Montgomery deep dive for WaPo Magazine.
Yoo & Delahunty on the vice president’s role in counting electoral votes
Over at National Review, John Yoo and Robert Delahunty have some long-ish thoughts on the role of the vice president in counting electoral votes. Consistent with their views elsewhere, they argue that the vice president has some role, and a larger role than Congress. I don’t think that’s right for reasons I’ve laid out on Eastman’s views, and I won’t rehash some of those points here. But I want to focus on a few of the claims.
Their bottom line: “We believe that the best reading of the Constitution’s text, structure, and history, is to place disputes over the legitimacy of the electoral vote into the hands first of the states, then of the vice president, and then perhaps of the judiciary. But not Congress.”
First, it’s worth noting how vice president-centric the claim is. The Constitution says the “President of the Senate,” and that language is used a couple of times in the Yoo & Delahunty piece. But until the 25th Amendment, there was no procedure to replace the Vice President. The President of the Senate devolved to the President Pro Tempore. Or, the President Pro Tempore acts as President of the Senate when the Vice President is simply absent, as has happened in other instances of the counting of electoral votes. I’ve noted the strange inconsistency here: it’s odd to claim that the President of the Senate–sometimes, one single Senator–has the power to handle disputes over electoral votes, but the entire Congress does not.
Second, there’s some misuse, in my view, of the statements of Senator Charles Pinckney in 1800, prior to the Twelfth Amendment, and who, it’s worth noting, was promptly outvoted on the issue when the Senate immediately considered the topic. It’s true that Pinckney spoke at length that it was state legislatures, not Congress, that should resolve the disputes over electors. Yoo & Delahunty say that Pinckney is “substantially correct,” then go on to reject half of his argument–namely, “Pinckney seems to have assumed that all potential disputes over the electors and their votes could be decided internally within the states, leaving no place for federal review. Other Framers likely shared that assumption. But that assumption has proven to be incorrect.”
That’s not “substantially correct.” Pinckney left it to X not Y to resolve disputes. To say he’s right by saying “not Y” doesn’t say much, without also saying that X is right. For, I assume, Pinckney would recoil even more at the concept of the vice president usurping the role of the state legislature.
But it also misses a lot of what Pinckney has to say in his March 28, 1800 speech .”Congress have no power to interfere except in the manner I shall hereafter detail,” he opens. That is, there are powers of Congress here. He notes the propriety of the Act of 1792 on the topic, for instance.
Elsewhere, he notes, the Constitution gives “to Congress no interference in or control over the election of President. It is made their duty to count the votes in a convention of both Houses, and for the President of the Senate to declare who has the majority of votes of the electors so transmitted.” Congress counts. The President of the Senate neither counts nor resolves disputes.
But another objection of Pinckney’s is that he just doesn’t want to answer the hard questions at the moment.
Elsewhere he states, “[S]uppose a State Legislature should so far forget its duty as not to pass the manner in which, within the proper time, electors of a President should be elected, and the people should, notwithstanding, assemble and elect under a different authority: would the votes of the electors, under these circumstances, be receivable? Or, suppose that two different sets of electors should insist that they were constitutionally elected, and that double returns should be transmitted, one certified by the Governor of the State, and the other not; which are to be received, and who is to have the power to decide to which the preference is to be given?
“On this subject I am to remark, that the Constitution supposes a mutual confidence to exist between the Federal and State Governments; that not only in its formation, but in the strict and honorable performance of their relative duties, there will be the greatest punctuality and exactness; that neglect, and particularly refusal, on the part of either must endanger the existence of both; and that until the case does actually arise it is extremely impolitic in either to suspect it, and particularly to adopt measures in anticipation, on suspicions unsupported by proofs, to meet situations that have never yet occurred, or probably never will . . . .”
Pinckney acknowledges that state dispute resolution mechanisms may not solve the problem, but he insists that the question should simply not be answered until a problem arises. That is, it would infringe on state autonomy to doubt them at this stage.
And, finally, given that majorities of both houses of Congress (despite Pinckney’s failed floor statements) agreed that it had the power to count votes and resolve disputes in 1800 (even if it couldn’t agree on the language of a bill), it seems strange to say that the subsequent enactment of the Twelfth Amendment a few years later disclaimed the very power members of Congress believed they already possessed. It’s for this crucial reason to separate the original public meaning of Article II with the original public meaning of the Twelfth Amendment. The latter is best read as ratifying the practices of Congress, including the scope of its practices (e.g., appointing tellers to tabulate the votes, a task not given to the President of the Senate) at the time.
New Emergency Supreme Court Application by Republicans Seeks to Stop Use of Pennsylvania Congressional District Maps on Grounds State Supreme Court Ruling Applying State Constitution Violated “Independent State Legislature” Theory
You can find the application here.
The arguments are similar to the ones raised by North Carolina Republicans in the filing I wrote about at Slate on Friday.
“Michigan Initiatives Clash on How to Stop GOP’s Election Deniers”
A new front is opening in Michigan’s voting wars that raises fundamental questions about how far defenders of fact-based elections and representative government must go to protect voting rights in an era marked by Republicans who deny results and spread lies about elections.
Republicans have launched ballot initiatives to bypass a gubernatorial veto and enact laws that would complicate voting, and sanction outside inquiries into close results. Voting rights groups and Democrats, in turn, are using the initiative process to amend Michigan’s constitution to close the veto loophole, and to affirmatively enshrine voting rights and balloting options.
There are three pro-voter proposed amendments. The first would close the veto dodge. The other two, affirming voting rights and options, would, if passed, lay the groundwork to strike down the GOP’s initiative-sparked legislation. But the latter two proposed amendments go to different lengths to block legislators and even the courts from rolling back voting rights.
“They’re all interested in what the ground rules all are,” said Sean Morales-Doyle, acting director of the voting rights and elections program at the Brennan Center for Justice at New York University School of Law, speaking of Michigan’s five competing ballot initiatives to enact laws or amend its constitution. “They’re also all interested in how these different political actors have power relative to one another, and how to restrict or expand that power.”
Michigan’s initiatives are responses to ongoing fights over its 2020 election, where Joe Biden officially beat Donald Trump by 154,000 votes out of 5.5 million cast. On February 11, its Board of State Canvassers finalized the 100-word summaries describing the latest measures to initiate legislation or amend its constitution. The next step is gathering signatures by July 11 to advance the GOP’s proposed laws or to put the amendments before voters in November.
The initiatives are part of a surge of more restrictive or permissive voting measures that have flooded state legislatures since the 2020 presidential election. But unlike states such as Arizona and Nebraska, where single ballot measures have emerged in addition to many bills proposed by legislators, Michigan offers the broadest spectrum of ballot initiatives that may complicate elections or construct guardrails against antidemocratic power grabs.
The faction seeking more onerous rules for voters, led by pro-Trump Republicans, wants to adopt legislation that was vetoed last October by Gov. Gretchen Whitmer, a Democrat. They have turned to Michigan’s ballot initiative process, where signatures from 8 percent of the votes cast for governor (340,000) would refer the measure to the GOP-led legislature, which could then enact the law. (Laws initiated this way are exempt from vetoes.) A second potential law proposed by Trump allies would empower private contractors to audit election results, like Arizona’s much-maligned 2020 review that concluded Biden won after spending months casting doubt on the election’s results.
The GOP proposals have been met by countermeasures to amend Michigan’s constitution from proponents of more expansive voting rights. Amending a state constitution supersedes new law and establishes a basis to challenge existing laws. (The amendments need 425,000 signatures to get on Michigan’s November 2022 ballot.) Center-left groups are behind the three proposed amendments. The first would close the veto loophole. The other two proposals overlap in their enumeration of voting rights and voting options, but they differ in how far each goes to restrain conspiracy-driven legislation and courts from upholding laws based on unproven threats….
Political Extremism and the Decline in Competitive Districts
Terrific Shane Goldmacher deep dive, focused on Texas and Rep. Dan Crenshaw, on how the decline of competitive districts empowers the extremes and is going to make governing more difficult. This is also a story about the internal fragmentation of the Republican party. Some excerpts:
The new lines mean Mr. Crenshaw now has a vanishingly slim chance of losing to a Democrat in the next decade. The only political threat would have to come from the far right — which, as it happens, is already agitating against him.
All across the nation, political mapmakers have erected similarly impenetrable partisan fortresses through the once-in-a-decade redrawing of America’s congressional lines….
“What the future of the Republican Party should be is people who can make better arguments than the left,” Mr. Crenshaw said in an interview. Yet in his new district, he will only need to make arguments to voters on the right, and the farther right.
When primaries are the only campaigns that count, candidates are often punished for compromise. The already polarized parties are pulled even farther apart. Governance becomes harder.
The dynamic can be seen playing out vividly in and around Mr. Crenshaw’s district….
He has especially sparred with Representative Marjorie Taylor Greene, Republican of Georgia, who, in the kind of political coincidence that is rarely an accident, found herself at a recent rally in Mr. Crenshaw’s district, declaring, “It is time to embrace the civil war in the G.O.P.”…
In 2022, zero Texas Republicans are left defending particularly competitive seats. They were all turned safely, deeply red.
“Not having competitive elections is not good for democracy,” said Representative Lizzie Fletcher, a moderate Democrat whose Houston-area district was also overhauled. To solidify neighboring G.O.P. seats, Republican mapmakers stuffed a surplus of Democratic voters — including from the old Crenshaw seat — into her district, the Texas 7th.
That seat has a long Republican lineage. George H.W. Bush once occupied it. Under the new lines, the district voted like Massachusetts in the presidential election.
For Ms. Fletcher, that means any future challenges are likely to come from the left. The political middle that helped her beat a Republican incumbent in 2018 is, suddenly, less relevant. “There is a huge risk,” she said, “that people will feel like it doesn’t matter whether they show up.”…
The contest is the first primary of 2022 that the McCarthy-aligned PAC has intervened in, as some McCarthy allies privately worry that the glut of new, deep-red Republican seats could complicate his speakership bid and governance of the House, should Republicans win a majority.
“Does this create incentives to avoid governing? It clearly — clearly, that’s the case,” Mr. Crenshaw said. But he said it is hard to discern the impact of those incentives versus others, like social media amplifying outrage and the increasing sorting of Americans into tribes….
But the influence of lopsided districts is not necessarily that the more right-wing candidate always wins. It is that the entire parameters of the debate shift. Notably, neither Mr. Collins nor Mr. Luttrell has accepted that the 2020 election was legitimately decided, one of the issues that first put Mr. Crenshaw in the cross hairs.
“Ballot Rejections in Texas Spike After New Voting Law”
NYT:
Local election officials in Texas have rejected thousands of absentee ballots based on requirements set by the state’s new election law, an alarming jump that risks potentially preventing some Texans from voting in Tuesday’s primary election.
The state’s Republican and Democratic primaries will be the first elections held since the Republican-led Texas Legislature overhauled the state’s election laws. Election officials in the most populous counties have rejected roughly 30 percent of the absentee ballots they have received — more than 15,000 ballots — as of Wednesday, according to a review of election data by The New York Times.
The ballots were rejected largely because voters either did not include their driver’s license number or the last four digits of their Social Security number, or the numbers they put down did not match what officials had on file. The new identification requirements were put in place by the voting law passed last year, known as Senate Bill 1.
The rate of rejection represents a significant increase from past elections, including in 2020, when the statewide rejection rate was less than 1 percent for the general election, according to data from the federal Election Assistance Commission. In 2020, officials rejected 8,304 ballots in Texas out of nearly a million votes statewide. This year, that statewide number has already been surpassed in two counties alone: Harris County and Dallas County rejected more than 8,600 ballots as of Wednesday….
The rise in rejections in Texas is the earliest sign that the spate of new election laws passed across the country last year after the 2020 election are having an effect. In the battleground states of Florida and Georgia, Republican legislatures passed sweeping new voting laws with identification requirements for the absentee ballot process that are similar to those in the Texas law. Florida and Georgia will hold their primaries later this year.
Former AG Barr, in New Book, Tries to Have It Both Ways on Responsibility for Jan. 6 Insurrection
From WaPo’s report on the book:
Barr takes particular aim at those who had the president’s ear — including former New York mayor Rudolph W. Giuliani, who Barr says will be remembered as “the man who helped President Trump get impeached not once but twice.” (Giuliani was involved in the pressure campaign in Ukraine, which was at the heart of Trump’s first impeachment, and the effort to overturn the election, which fueled the Jan. 6 riot at the Capitol and was at the heart of the second.)
He writes that Trump’s legal team “had a difficult case to make, and they made it as badly and unprofessionally as I could have imagined,” taking particular note of a news conference Giuliani held at a Philadelphia landscaping company to promote his claims.
“It was all a grotesque embarrassment,” Barr writes.
Barr writes that Trump “surrounded himself with sycophants, including many whack jobs from outside the government, who fed him a steady diet of comforting but unsupported conspiracy theories.” He seems to blame Trump for the Jan. 6 riot at the Capitol, in which supporters of the president stormed the building as lawmakers were finalizing the vote count.
“The absurd lengths to which he took his ‘stolen election’ claim led to the rioting on Capitol Hill,” Barr writes, though he notes later that he was not accusing the president of incitement.
“I did not think, from what I heard, that Trump ‘incited’ violence in the legal sense,” Barr writes. “Incitement has a legal definition, and Trump’s statements would not fit that definition in any American court.”
Barr writes that he repeatedly informed Trump, through his staff, that the Justice Department was not finding evidence to support his claims of fraud. The issue came to a head in December 2020, when Barr said as much publicly to the Associated Press.
“As maps fall, GOP tries to neutralize state supreme courts”
AP:
Repeatedly stymied by local courts in their efforts to draw maps that make it easier for their party to win elections, Republicans are trying to neutralize the ability of state supreme courts to interfere in the politically-charged redistricting process.
After setbacks in North Carolina and Pennsylvania’s supreme courts this week, GOP officials said the party needs to invest more in winning races for seats on those bodies. Republicans were particularly incensed in North Carolina, where the Democratic majority on the state court blocked a map drawn by the GOP-controlled state legislature as being illegally tilted toward one party, and on Wednesday approved one with three fewer Republican-dominated House seats.
On Friday afternoon, Republican lawmakers in North Carolina asked the U.S. Supreme Court to restore their old map, which would have effectively given them 10 of the state’s 14 House seats, and stop state courts from redrawing congressional maps.
Mark Brown: Making Sense of the Latest Moves in the Ohio Redistricting Fight
The following is a guest post from Mark Brown:
The last few weeks in Ohio have proved tumultuous in terms of redistricting for upcoming elections. On January 12, 2022 the Ohio Supreme Court, in a bipartisan opinion, concluded that the General Assembly’s redistricting plans for the State House and Senate violated Ohio’s Constitution. Contrary to the Ohio Constitution’s mandate that Ohio’s House and Senate districts be drawn to “correspond closely to the statewide preferences of the voters of Ohio,” the Republicans who presently control Ohio’s General Assembly and Redistricting Commission drew maps awarding Republicans super-majorities in both houses. The Ohio Supreme Court thus ordered the Republican-dominated Ohio Redistricting Commission to draw new maps that abided by the State Constitution’s proportionality requirement.
The Redistricting Commission “tried” (charitably speaking) by offering maps that were only a bit better in terms of proportionality, leading the Ohio Supreme Court on February 7, 2022, in another bi-partisan opinion, to again rejected the maps. The Court accordingly sent them back to the Republican-controlled Commission for another do-over, with instructions that the new maps be completed within 10 days.
Ten days passed with nary a map being considered, let alone adopted, and the Redistricting Commission thus returned to the Ohio Supreme Court empty handed. Republicans on the Commission lamely claimed that no proportionally acceptable maps could be drawn other than the ones they had already submitted. The task assigned the Commission by the Ohio Supreme Court, Republicans asserted, was constitutionally impossible.
Rather than explain to the Ohio Supreme Court exactly why their assigned task was impossible under either the federal or State Constitutions, Republicans on Friday, February 18, 2022, filed a complaint in federal court under the U.S. Constitution challenging the Ohio Supreme Court’s refusal to accept their previously-proffered, disproportionate maps. Not only was the Ohio Supreme Court’s rejection of their maps an impermissible political gerrymander, they claimed, it violated the federal Constitution’s one-person-one-vote requirement. For good measure, Republicans added that the Ohio Supreme Court waited “nearly three and a half months” before ruling, “sat” on the matter while filing deadlines for candidates “came and went,” and only then ruled against Republicans after needlessly delaying “for nearly five months.”
If all of this sounds a bit absurd, that is because it is. The federal Constitution neither requires nor prohibits political gerrymandering. It does not prohibit proportionality, and the U.S. Supreme Court has never suggested that voters enjoy any right to vote in any particular districts. The Ohio Supreme Court’s order, meanwhile, does not implicate let alone denigrate the Fourteenth Amendment’s one-person-one vote principle, and the Republicans’ aspersions cast on the competency of the Ohio Supreme Court are simply offensive.
On top of all that, the Republicans’ federal complaint would face insurmountable procedural obstacles even if it were otherwise credible. Preclusion principles (res judicata and estoppel) will likely apply, and long-standing comity and abstention doctrines should counsel strongly against and federal involvement. In sum, the Republicans’ federal complaint is not only devoid of substance, it is constitutionally comical.
On February 24, 2022, after two-stepping around contempt charges threatened by the Ohio Supreme Court, Ohio’s Redistricting Commission finally did what it just one week earlier claimed was impossible; it adopted two new maps and filed them the next day with the Ohio Supreme Court. Only time will tell whether these maps prove constitutionally acceptable to the Ohio Supreme Court. A contempt hearing scheduled for March 1, 2022 was postponed on February 25, 2022 to afford those challenging the Commission’s latest maps an opportunity to address them.
Lessons are abundant in this teachable moment. One that absolutely must be taught here is that the constitutional rule of law applies to everyone, even those who presently hold the reins of power in Ohio. Republicans simply cannot be allowed to run rough-shod over Ohio’s Constitution and the Ohio Supreme Court. Ohioans must be assured that even in politically troubled times like these, the rule of law is solid. Thumbing one’s nose may be cute on the playground, but it is not acceptable in courts of law.
My New One at Slate on North Carolina’s Attempt to Get the Supreme Court to Allow It to Return to Partisan Gerrymandering of Congressional Districts
I have written this piece for Slate. It begins:
In a late Friday afternoon filing as war raged in Ukraine and as President Joe Biden announced Judge Ketanji Brown Jackson as his nominee to replace Justice Stephen Breyer on the U.S. Supreme Court, North Carolina Republicans dropped their own bombshell: a legal filing in the Supreme Court that if successful would not only restore the state legislature’s ability to engage in partisan gerrymandering and perhaps tip control of Congress, but would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections. There are strong arguments Republicans should lose this case, but don’t count them out before a polarized and politicized Supreme Court.
A few years ago, in a case called Rucho v. Common Cause, the U.S. Supreme Court shut the federal courthouse door to partisan gerrymandering claims—claims that political parties drawing maps for electing members of Congress or state legislative bodies manipulated those maps purely for partisan gain. The Rucho court majority opinion by Chief Justice Roberts explained that there were other paths for reining in this conduct, including Congress passing legislation (as the Freedom to Vote Act would have done), the creation of independent commissions, and state courts. Indeed, the court noted: “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in policing nefarious redistricting practices.
In a late Friday afternoon filing as war raged in Ukraine and as President Joe Biden announced Judge Ketanji Brown Jackson as his nominee to replace Justice Stephen Breyer on the U.S. Supreme Court, North Carolina Republicans dropped their own bombshell: a legal filing in the Supreme Court that if successful would not only restore the state legislature’s ability to engage in partisan gerrymandering and perhaps tip control of Congress, but would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections. There are strong arguments Republicans should lose this case, but don’t count them out before a polarized and politicized Supreme Court.A few years ago, in a case called Rucho v. Common Cause, the U.S. Supreme Court shut the federal courthouse door to partisan gerrymandering claims—claims that political parties drawing maps for electing members of Congress or state legislative bodies manipulated those maps purely for partisan gain. The Rucho court majority opinion by Chief Justice Roberts explained that there were other paths for reining in this conduct, including Congress passing legislation (as the Freedom to Vote Act would have done), the creation of independent commissions, and state courts. Indeed, the court noted: “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in policing nefarious redistricting practices.
And that’s exactly what happened in North Carolina. The state Supreme Court recently held that the North Carolina Republican-controlled legislature’s gerrymandering of Congressional and other districts was a partisan gerrymander grossly favoring Republicans violating the state constitution’s provisions guaranteeing free elections. This ruling was going to lead to a much fairer map in a state that is mostly evenly divided between Democrats and Republicans.
Now the Republican-dominated general assembly has struck back raising what’s come to be known as the “independent state legislature” theory. This move was something I feared would happen weeks ago as Republicans were running out of options. They’ve argued in a new filing before the Supreme Court that the North Carolina Supreme Court does not have the power even in reliance on the state Constitution and despite Rucho to rein in partisan gerrymandering of congressional districts when done by a state legislature…..
Now there are some good reasons to believe that the Supreme Court won’t bite in this case. First, this ruling would not only be in tension with Rucho’s recognition of state courts applying state constitutions as a means of policing partisan gerrymandering, which five conservative jurists signed onto just three years ago. It is also in tension with a 2015 case in which the Supreme Court upheld the right of the people acting through voter initiatives to take the power to draw congressional districts out of the hands of legislatures and put it in the hands of an independent commission. (Chief Justice Roberts wrote a bitter dissent for four justices in that case, and he could be itching to overturn it now that some of the justices in the majority in that case are no longer on the court).
An even stronger reason for believing that the North Carolina argument is weak in this case is that it was the state legislature itself that proposed the provision in the 1970 constitution guaranteeing these voting rights for North Carolina voters, which have now been interpreted by the state supreme court to ban partisan gerrymandering. As North Carolina elections guru Gerry Cohen explained, “Unlike the North Carolina Constitutions of 1776 and 1868 which were promulgated by independent conventions, the 1970 state constitution was enacted by the General Assembly.” How can the state supreme court have usurped the legislature’s power when the legislature itself brought this provision into the state Constitution, knowing full well that the state Constitution is interpreted by the state supreme court?
The independent state legislature theory is also wrong on the merits. As leading constitutional scholars Vikram Amar and Akhil Amar explain in a forthcoming paper, claims of unfettered power of state legislatures in federal elections are:
as an originalist matter, not just lawless—that is, not grounded in the law—but actually law-defying. They stand lawful federalism on its head. The theory invokes constitutional provisions designed to protect states against federal interference (including interference from federal courts) and instead uses these provisions to disrespect both the wishes of the state peoples who create, empower, and limit their legislatures, and also the wishes of the elected legislatures themselves. The theory gives near carte blanche to federal judges, when the key point of Article II’s election language (and the companion language of Article I) was to empower states.
And there’s yet another reason North Carolina should lose. In recent years the Supreme Court has relentlessly applied something I’ve dubbed the Purcell Principle: the idea that federal courts should not interfere with election processes when they are already underway because doing so could cause voter and election administrator confusion. Well stopping things now in North Carolina would cause exactly the same thing. As Cohen tells me: “Candidate filing under the NC court ordered plan started yesterday. Two of the 7 days of candidate filing has been completed. The state board of elections has updated all 8 million voter records with the new districts. Absentee ballots are to go out March 28 under the court plan for the May 17 primary.” As recently as this month, Brett Kavanaugh cited the Purcell Principle to block a state court’s ruling in another gerrymandering case based on a similar timeline and under much more dubious circumstances.
Amar and Amar: “Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish”
Can’t wait to read this article by Vik Amar and Akhil Amar, forthcoming in the Supreme Court Review. Here is the abstract:
The Court’s rulings in Bush v. Gore were disgraceful, and efforts two decades later to rehabilitate and recycle some of the worst aspects of the Court’s opinions in that litigation deserve loud condemnation by intellectually honest judges and scholars across the ideological and methodological spectra. In particular, the notion – advanced in recent years by litigants, several Justices and a few law professors – that Article II of the Constitution confers power on elected state legislatures, in regulating the selection of presidential electors, to disregard the very state constitutions that created and confine those legislatures, and the related notion that federal (rather than state) courts are in this setting the appropriate judicial interpreters of state election laws and state constitutional provisions, is utterly indefensible. The “Independent-State-Legislature” theory, as it is called by some of its proponents, runs completely counter to originalist and structural understandings of the Constitution in 1787, to actual state legislative practice and intentions, and to settled judicial precedent from the Court itself over the past century.
Breaking: North Carolina General Assembly Goes to US Supreme Court to Overturn State Supreme Court Decision Reining in Partisan Gerrymandering of Congressional (and Other Districts) (Link to Filing)
As I feared, here the new filing. Analysis to come.
“Judge orders new trial for US woman sentenced to six years for trying to register to vote”
A Memphis judge ordered a new trial for Pamela Moses, a woman who was sentenced to six years in prison for trying to register to vote.
The case attracted national attention in recent weeks because of the severity of the sentence. Moses said she had no idea she was ineligible.
Moses has been in prison since December, when her bond was revoked. She was being released from custody on Friday, according to Claiborne Ferguson, her attorney….