Can Senate Leadership Find a Path to Avoid the Potential for a Constitutional Armageddon?

August 19, 2023, 3:15 pmUncategorizedNed Foley

The new essay in The Atlantic by Judge Luttig and Larry Tribe significantly raises the risk, in my judgment, that Democrats in Congress will attempt to prevent Trump from being inaugurated on January 20, 2025 if he wins the election… Continue reading

When and how the issue of Trump’s disqualification gets to the U.S. Supreme Court

August 19, 2023, 11:38 amUncategorizeddisqualification, January 6, Section 3Ned Foley

On the Smerconish broadcast, the issue arose of how and when a case involving Trump’s status under section 3 of the Fourteenth Amendment would get to the U.S. Supreme Court. I made the point that a case is likely… Continue reading

“Georgia GOP’s Endless Fight Over 2020 Could Help Biden in 2024”

August 19, 2023, 11:11 amUncategorizedRick Hasen

WSJ: Donald Trump’s indictment has reignited infighting among Georgia Republicans, stoking fears within the party that the division may tip the state to Joe Biden in 2024. Fulton County District Attorney Fani Willis’s expansive racketeering case, which alleges… Continue reading

Smerconish on CNN discussing Trump’s status under section 3 of 14th Amendment

August 19, 2023, 9:40 amUncategorizeddisqualification, January 6, Section 3Ned Foley

Here’s the video clip of the segment from this morning’s show, on which I was a guest. I think it was a succinct discussion of the key procedural issues involved, including the essential need to resolve this definitively before the… Continue reading

“The Constitution Prohibits Trump From Ever Being President Again”

August 19, 2023, 9:30 amUncategorizeddisqualification, January 6, Section 3Ned Foley

Judge Luttig and Larry Tribe in The Atlantic, agreeing with the Baude-Paulsen view of Trump’s disqualification under section 3 of the Fourteenth Amendment: “The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment… Continue reading

“When the Law Is Not a Trump Card”

August 19, 2023, 8:57 amUncategorizeddisqualification, January 6, Section 3Ned Foley

Ross Douthat in N.Y. Times expressing strong disagreement with the Baude-Paulsen view of Trump’s disqualification under section 3 of the Fourteenth Amendment–and aligning himself with Michael McConnell’s and Eric Segalls’s critiques of the Baude-Paulsen view: “My concern is that not… Continue reading

Wisconsin: “Conservative Justice Rebecca Bradley rips Janet Protasiewicz for not recusing on redistricting case”

August 18, 2023, 5:38 pmjudicial elections, redistrictingRick Hasen

Milwaukee Journal-Sentinel: The outcome of a challenge to Wisconsin’s legislative maps is “predetermined” by the court’s liberal majority, conservative Justice Rebecca Bradley wrote in a dissent issued Tuesday. The court is considering taking up lawsuits filed directly with it, bypassing… Continue reading

“This issue could knock Trump off ballots nationwide. Get ready for it to dominate primary season”

August 18, 2023, 2:55 pmUncategorizeddisqualification, Section 3Ned Foley

L.A. Times. “Even before [the Baude-Paulsen article], liberal legal groups had begun researching state laws and working with voters who could challenge Trump’s access to the ballot. … “’The American public should expect to see a series of challenges filed… Continue reading

Jeffrey Goldberg on the Chuck Toddcast

August 18, 2023, 12:34 pmUncategorizedJanuary 6Ned Foley

This episode is very much worth listening to, especially for its discussion of how the nation seems to be “sleepwalking” into a disastrous situation next spring as a consequence of the Senate’s failure to reach 67 votes to convict Trump… Continue reading

Preliminary Injunction against Georgia’s Birthdate Requirement on Absentee Ballot Envelopes

August 18, 2023, 12:10 pmUncategorizedabsentee ballots, election administration, materialityNed Foley

Order (via Democracy Docket). The court relied on the “materiality” provision of the Civil Rights Act. Similar issues have arisen recently in Pennsylvania, and provoked an opinion from Justice Alito (as I recall), although the Supreme Court did not address… Continue reading

The Buckley of Buckley v. Valeo Dies

August 18, 2023, 11:58 amUncategorizedCampaign financeNed Foley

Washington Post obituary. “In political circles, Mr. Buckley was perhaps best remembered as the lead plaintiff in a landmark campaign finance lawsuit — Buckley v. Valeo — that in 1976 unraveled part of the post-Watergate regulation of political money. That… Continue reading

Amicus brief on computer algorithms in racial gerrymandering cases

August 18, 2023, 9:02 amUncategorizedNicholas Stephanopoulos

Harvard Law School’s Election Law Clinic filed this amicus brief today, on behalf of Jowei Chen and me, in Alexander v. South Carolina State Conference of the NAACP. The brief explores the uses of redistricting algorithms in racial gerrymandering litigation.… Continue reading

Do Voters Have a “Right” that Trump Be on the Ballot?

August 18, 2023, 6:51 amUncategorizedpolitical parties, Section 3Ned Foley

Since writing my Washington Post column on procedural issues relating to whether or not Trump is constitutionally disqualified from serving as a president again under section 3 of the Fourteenth Amendment, I have been asked by some journalists a version… Continue reading

“The federal cases against Trump are legitimate: Bill Barr”

August 18, 2023, 5:34 amUncategorizedJanuary 6, The Big LieNed Foley

Video of Fox News interview yesterday. N.Y. Post has a story describing the interview. With respect to the federal indictment for conspiracy to subvert the 2020, Barr made clear that he believes that Trump “crossed the line” into criminal culpability:… Continue reading