American Law Institute: “Bipartisan Working Group Issues Ethical Standards for Election Administration”

January 29, 2024, 7:27 amelection administrationRick Hasen

I was very happy to see this work under the auspices of the American Law Institute with a stellar connection of participants, not only because I think these standards will produce useful rubrics by which election administrators can judge the… Continue reading

“‘Officer of the United States’ in Context”

January 23, 2024, 10:19 amSupreme CourtRick Hasen

Smart Sam Bray at Volokh, which leaves me wondering why Trump’s lawyers devoted so much time and prime brief real estate to this argument: I have not been deep in the weeds of the arguments about Section 3 of the… Continue reading

ELB Podcast 5:5: Steve Vladeck: Trump, the Supreme Court and the Shadow Docket

January 9, 2024, 2:24 pmELB Podcast, election subversion risk, Supreme CourtRick Hasen

New ELB Podcast: What are the costs for democracy when the Supreme Court decides cases on the “shadow docket?” Is the Purcell Principle a license for states to act illegally in running elections? What is going to happen with the… Continue reading

German Constitutional Court decision on state subsidies to political parties

December 17, 2023, 5:16 pmcampaign finance, comparative election law, political partiesDerek Muller

Sam Issacharoff passes along this interesting January ruling from the German Constitutional Court. It found unconstitutional an increase in state subsidies to political parties on the grounds that the parties had an obligation to prove commitment from their constituents. The… Continue reading

Fiss on voting rights

December 16, 2023, 10:05 amSupreme CourtDerek Muller

When I guest blog, I like to highlight some recent or forthcoming scholarship on the weekend. I’ll start here. Owen Fiss, Why We Vote, Oxford University Press (released January 2024): In Why We Vote, renowned legal scholar Owen Fiss… Continue reading

Breaking: 5th Circuit, Sitting En Banc, and Over 6 Dissenting Votes, Stops Redistricting Remedy for Galveston, Texas for Voting Rights Act Violations; Argument Not Until May [Corrected Headline]

December 7, 2023, 1:52 pmVoting Rights ActRick Hasen

See the order here. The concurring opinion of Judge Oldham leans heavily on Purcell and delay; and yet the majority over the votes of a number of 5th Circuit judges (including Judge Ho) refused to set this case for… Continue reading

Justices with Political Backgrounds, such as Justice O’Connor, and Judicial Oversight of Districting

December 2, 2023, 11:53 amUncategorizedRichard Pildes

As many have noted, Justice O’Connor was the last Justice on the Court who had a political background. She was the majority leader of the Arizona state senate, before becoming a judge and then Justice. Can we say anything about… Continue reading

Political questions and Section 3 of the Fourteenth Amendment

November 16, 2023, 12:14 pmelection administration, election law and constitutional lawDerek Muller

I went back to look at some of the commentary around the Supreme Court’s decision in Rucho v. Common Cause in 2019. The decision shut the door on federal constitutional challenges to partisan gerrymanders. Much of the commentary around the… Continue reading

“Mitch McConnell warns GOP senators they’ll face ‘incoming’ if they back Hawley bill to limit corporate giving in campaigns”

November 1, 2023, 9:30 amcampaign financeRick Hasen

CNN: Senate GOP Leader Mitch McConnell bluntly warned Republican senators in a private meeting not to sign on to a bill from Sen. Josh Hawley aimed at limiting corporate money bankrolling high-powered outside groups, telling them that many of them… Continue reading

My New One in The Atlantic: “The Supreme Court Needs to Make a Call on Trump’s Eligibility; The question of the former president’s possible disqualification needs to be resolved sooner or later. Sooner is better than later.”

September 26, 2023, 7:33 amelection subversion risk, Supreme CourtRick Hasen

I have written this piece for The Atlantic. It begins: There’s an old saying that sometimes it is more important for the law to be certain than to be right. Certainty allows people to plan their actions knowing what the… Continue reading

Niels Petersen and Emanuel V. Towfigh: Politics as Markets in Germany

September 13, 2023, 9:02 amPoliticsMarkets25Rick Hasen

The following is a guest post from Niels Petersen and Emanuel V. Towfigh, part of the Politics as Markets at 25 symposium: Politics as Markets by Professors Samuel Issacharoff and Rick Pildes is a seminal, path-breaking piece of scholarship… Continue reading

Must-Read NYT Piece on How Changes to Campaign Finance Contribute to Extremism

August 30, 2023, 12:35 pmUncategorizedRichard Pildes

Tom Edsall in the NYT does a masterful job synthesizing the state-of-the-art empirical knowledge on how changes in recent years to the way elections are financed have contributed to polarization and extremism. Relying on this data, the piece makes two… Continue reading

David French on Section 3

August 20, 2023, 8:54 amUncategorizeddisqualification, January 6, Section 3Ned Foley

His N.Y. Times opinion column: “[The Baude-Paulsen article presents] a fascinating and compelling argument that only grows more compelling with each painstakingly researched page. But as I was reading it, a single, depressing thought came to my mind. Baude… 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