(Rick Hasen) Live-Blogging the Supreme Court’s Oral Arguments in the Moore v. Harper (Independent State Legislature); Now UPDATED with Analysis and Reason to Think Court Will Reject Maximalist Version of ISLT

December 7, 2022, 9:58 amSupreme CourtRick Hasen

[This post has been updated.] UPDATE: After almost three hours of oral argument, a divided Supreme Court appeared searching for a middle ground to hold that in really egregious cases state courts can violate the federal constitution when they apply… Continue reading

“Voting Rights or Voting Entitlements”

November 21, 2022, 6:11 pmUncategorizedRick Hasen

James Sample has posted this draft on SSRN (Houston Law Review). Here is the abstract: It took nearly 100 years after the United States gained its independence for African American men to secure the right to vote, and almost 150… Continue reading

11th Circuit finds eligibility challenge to Marjorie Taylor Greene moot, but one judge finds Georgia had no power to adjudicate her qualifications

November 3, 2022, 9:57 amcourt decisions, legislation and legislaturesDerek Muller

From Greene v. Secretary of State (disclosure: I filed an amicus brief in the case), a per curiam opinion (Judges Wilson, Branch, and Lagoa): As explained, in this federal lawsuit, Rep. Greene is seeking to enjoin the application of the… Continue reading

Did the Postal Service usurp Congress’s authority under the Elections Clause during the 2020 election?

October 10, 2022, 5:48 amElections Clause, legislation and legislaturesDerek Muller

A federal district court judge in Washington, DC just issued a decision in New York v. Biden (originally filed as New York v. Trump). Here are excerpts of New York’s claim under the Elections Clause, filed back in October 2020… Continue reading

What, exactly, would a judicially-manageable standard under the Elections Clause look like after Moore v. Harper?

September 23, 2022, 9:39 amElections ClauseDerek Muller

Rick Pildes here at ELB has already commented on the petitioners’ brief in Moore v. Harper, the Legislature Thereof Clause, as a brief that “trades off between” a “strong” interpretation and a “weak” interpretation of the Clause–strong, in… Continue reading

Missouri Files Bonkers Amicus Brief in Moore v. Harper Case Arguing That Not Even Congress Can Limit a State Legislature’s Partisan Gerrymandering

September 6, 2022, 8:53 pmredistricting, Supreme CourtRick Hasen

The main dispute in Moore v. Harper, currently pending before the Supreme Court, is whether state legislatures may be constrained by other state actors (such as state courts applying state constitutional provisions protecting voting rights) when they pass rules… Continue reading

Important Amicus Brief in Moore v. Harper Case Filed by Conference of Supreme Court Justices

September 6, 2022, 6:00 pmlegislation and legislatures, Supreme CourtRick Hasen

This brief is well done (Carter Phillips/Evan Caminker) but also important in that it represents the views of Chief Justices of states from across the political spectrum. Tom Wolf tweet thread explains the brief’s significance. From the Brief’s summary of… Continue reading

“In 4 Swing States, G.O.P. Election Deniers Could Oversee Voting”

August 3, 2022, 12:29 pmelection subversion riskRick Hasen

NYT: With Tuesday’s primary victories in Arizona and Michigan added to those in Nevada and Pennsylvania, Republicans who have disputed the legitimacy of the 2020 presidential election and who pose a threat to subvert the next one are on a… Continue reading

“A bill to prevent Trump’s attempted coup is finally ready — and must pass.”

July 20, 2022, 3:10 pmUncategorizedNed Foley

Washington Post editorial supporting the bipartisan Senate ECA reform bill. Here’s an excerpt (which links to the earlier joint post): ‘Perhaps most important are changes that would impede state-level mischief. By identifying governors as responsible for submitting a… Continue reading

A Middle Ground on the Independent State Legislature Doctrine?

July 14, 2022, 6:57 pmUncategorizedNed Foley

Jason Willick has a Washington Post column with which I very much agree. The basic argument is that it’s a mistake, both substantively and strategically, to think of the “independent state legislature doctrine” as an all-or-nothing proposition, without any possibility… Continue reading

“How Congress Can Preempt the Most Dangerous Possible Ruling of the Next Supreme Court Term”

July 7, 2022, 12:11 pmUncategorizedNicholas Stephanopoulos

I wrote this column for Slate on how Congress could nullify the North Carolina legislators’ claim in Moore v. Harper through a short statute giving the imprimatur of federal law to the regulatory activities of non-legislative state actors: Fortunately, Congress… Continue reading

Breaking and Analysis: Supreme Court Will Hear Moore v. Harper, the Independent State Legislature Theory Case from North Carolina; This Case Could Severely Curtail the Ability of State Courts to Protect Voting Rights and Stop Partisan Gerrymandering

June 30, 2022, 7:48 amSupreme CourtRick Hasen

The Supreme Court today just agreed to hear Moore v. Harper, an “independent state legislature” theory case from North Carolina. This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights… Continue reading

Tom Daschle and Trent Lott Advocate for Reforms to the Electoral Count Act of 1887

May 17, 2022, 5:41 amelection subversion risk, legislation and legislaturesTabatha Abu El-Haj

Former Senate majority leaders Tom Daschle (D) and Trent Lott (R) have published an Op Ed in the WSJ endorsing the need for swift bi-partisan action to reform the Electoral Count Act of 1887 in advance of the next presidential… Continue reading

Issacharoff: “Democracy Under Total War”

May 8, 2022, 7:28 amcomparative election lawRick Hasen

New post from Sam Issacharoff: Ukraine is engaged in an existential war for survival. One need not accept the full role of the exception from Carl Schmitt to acknowledge that the struggle to withstand a brutal assault on civilians transcends… Continue reading

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