“Supreme Court rejects novel legislative theory but leaves a door open for 2024 election challenges”

June 28, 2023, 7:04 amlegislation and legislatures, Supreme CourtRick Hasen

Nick Riccardi and David Leib for AP: But for some critics of the theory, the danger is not entirely past. The court found that state courts still must act within “ordinary bounds” when reviewing laws governing federal elections. That… Continue reading

“Exclusive: Rudy Giuliani interviewed in special counsel’s 2020 election interference probe”

June 28, 2023, 6:59 amUncategorizedRick Hasen

CNN: Former Donald Trump attorney Rudy Giuliani has been interviewed by federal investigators as part of the special counsel’s investigation into efforts to overturn the 2020 election results, multiple sources familiar with the meeting told CNN. The meeting between Giuliani,… Continue reading

The limited path for litigation after Moore v. Harper was set out in a series of related cases between 2004 and 2007

June 28, 2023, 6:46 amElections Clause, legislation and legislaturesDerek Muller

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… Continue reading

Pildes: “The Supreme Court Rejected a Dangerous Elections Theory. But It’s Not All Good News.”

June 28, 2023, 6:44 amlegislation and legislatures, Supreme CourtRick Hasen

Excellent new Rick Pildes in the NYT: Relief that the court did not endorse this extreme position, though, must be tempered by the fact — which many initial responses to the decision have not recognized — that the court simultaneously… Continue reading

Moore v. Harper & the need for clarity

June 28, 2023, 4:19 amUncategorizedNed Foley

In his valuable New York Times column this morning, Rick Pildes rightly emphasizes the need for clarity in rules governing the electoral process, especially the rules concerning the casting and counting of ballots. Rick worries, however, that yesterday’s decision… Continue reading

Don’t Count on the Gorsuch and Thomas Votes in Future Voting Cases; Expect Them to Side Against Voting Rights Litigants

June 27, 2023, 5:42 pmlegislation and legislatures, Supreme Court, Voting Rights ActRick Hasen

In today’s Moore decision, Justices Thomas and Gorsuch rejected the majority approach to the independent state legislature theory, believing instead that state legislatures have almost plenary power and cannot be limited even by state courts applying state constitutions. (Justice Alito… Continue reading

Eastman Whines About Court’s Ruling in Moore v. Harper

June 27, 2023, 5:24 pmchicanery, election administrationRick Hasen

Jess Bravin for WSJ: John Eastman, a former law professor who advised former President Donald Trump on resisting the 2020 election results, filed a brief for the Claremont Institute backing the GOP position. On Tuesday, he criticized Roberts’s opinion, saying… Continue reading

“How the Supreme Court’s decision on election law could shut the door on future fake electors”

June 27, 2023, 4:57 pmelection subversion risk, legislation and legislatures, Supreme CourtRick Hasen

Politico: The Supreme Court’s rejection of a controversial election theory may also have another huge political consequence for future presidential contests: It obliterated the dubious fake elector scheme that Donald Trump deployed in his failed attempt to seize a second… Continue reading

Separating Spin from Reality in the Supreme Court’s Moore v. Harper Case: What Does It Really Mean for American Democracy and What Does It Say About the Supreme Court?

June 27, 2023, 3:29 pmlegislation and legislatures, Supreme CourtRick Hasen

There’s a whole lot of spin out there about the Supreme Court’s 6-3 decision in Moore v. Harper concerning the scope of the “independent state legislature” theory. To hear some progressives tell it, the ISLT theory is dead and democracy … Continue reading

My New One at Slate: “There’s a Time Bomb in Progressives’ Big Supreme Court Voting Case Win”

June 27, 2023, 10:17 amlegislation and legislatures, Supreme CourtRick Hasen

I have written this piece for Slate. It begins: It is indeed a cause for celebration that the United States Supreme Court, on a 6-3 vote in Moore v. Harper, rejected an extreme version of the “independent state legislature”… Continue reading

A few more quick thoughts on Moore

June 27, 2023, 9:08 amBush v. Gore reflections, election law and constitutional law, Elections Clause, legislation and legislatures, redistricting, UncategorizedFranita Tolson

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… Continue reading

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

June 27, 2023, 8:46 amElections Clause, Supreme CourtDerek Muller

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… Continue reading

Quick Thoughts on Moore

June 27, 2023, 8:30 amUncategorizedNicholas Stephanopoulos

1. It’s striking how the entire Court accepts Arizona State Legislature and its holding that the Elections Clause doesn’t preclude independent redistricting commissions. Roberts spends two pages discussing the case without suggesting any criticisms (even though he authored a bitter… Continue reading

The Court’s Mixed Message on the Independent State Legislature Theory

June 27, 2023, 7:40 amUncategorizedRichard Pildes

As anticipated after oral argument, the Court rejected the most extreme version of the ISLT. It held that state constitutions continue to bind state legislatures when they regulate national elections. The Court generated a majority decision, though, by deciding the… Continue reading

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