“A Supreme Court Race May Shuffle the Rules of Wisconsin’s Democracy, Again”

judicial elections

Bolts:

But voting rights advocates are closely watching the election as well. A host of issues related to voter access—the use of drop boxes, accommodations for disabled voters, and voter ID rules, to name a few—may also ride on this court’s composition. 

“The latest makeup of the court has been a major pro for access to democracy,” said Sam Liebert, a former Wisconsin election clerk who now directs the state chapter of the pro-voter access group All Voting is Local. “It’s so important that we have a supreme court that recognizes that the right to vote is a right.”

Conservatives have also drummed up attention to the April contest’s importance for elections policy. “Very important to vote Republican for the Wisconsin Supreme Court to prevent voting fraud!” Elon Musk posted on X in January, echoing the right’s unfounded claims that Wisconsin elections are fraught with fraud. 

“Elon Musk highlighted a critical issue in this race: election integrity,” Schimel told a conservative radio host. 

Schimel built a record of controversial actions in the name of “election integrity” when he served as attorney general. In 2016, he dispatched state Department of Justice employees to monitor polling sites, mostly in heavily Democratic areas—a move Democrats and voting rights advocates criticized as an intimidation tactic against communities likely to oppose Trump. 

Crawford, meanwhile, says she supports making it easy to vote. “The bottom line is that we need to make sure that eligible voters are able to exercise their right to vote without having to jump through a lot of unnecessary hoops,” she told Bolts.

She added that she is generally wary of policies that purport to make elections more secure but that mainly just hamper voters: “I think it is really important, obviously, that we have fair elections in Wisconsin, and that includes elections that are safe and secure, but also elections where everyone who is eligible to vote can exercise that right and get their ballots cast,” she said. “There needs to be a balance there and the law needs to be used to protect both aspects of elections.”

There’s currently no case pending in front of Wisconsin’s supreme court concerning the voter ID requirement, though Schimel’s campaign has played it up as a live issue. Some prominent supporters have also tied the race to false claims that drop boxes for mail ballots are a vehicle for voter fraud, arguing that Wisconsin’s ability to limit voting by drop box depends on a Schimel victory.

That may be true: In the run-up to the 2024 presidential election, the Wisconsin Supreme Court issued a 4-3 decision that let Wisconsinites deposit their mail ballots at drop boxes. That ruling reversed a 2022 ruling that had banned drop boxes in that year’s midterms. Protasiewicz’s victory and the court’s flip in 2023 made the difference between those two cases, and observers think a conservative majority could revisit the issue ahead of 2026 if the court flips again this year.

The highest-profile voting issue this court handles may be redistricting, which dominated the 2023 race Protasiewicz won, and which led the GOP to threaten to impeach her. The court struck down the previous legislative maps as being non-contiguous, and kicked the matter to lawmakers who, fearing potential court-ordered maps friendly to Democrats, ended up adopting fairer statehouse maps in 2024 that paved the way for Democratic gains amid much more competitive Wisconsin elections last fall. Democrats now see an actual chance at winning legislative control in 2026. …

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Election Law and Constitutional Democracy

Uncategorized

Over at Common Ground Democracy, I’ve posted “The Senate Has Surrendered Its Constitutional Responsibilities,” explaining that the existing electoral system has caused the Senate to fail in its constitutional role of thwarting presidential despotism and “electoral reform can restore the Senate to its essential role of protecting against an autocratic president.”

I want to call on members of the election law community who agree this perspective to share their expertise in light of the current situation that the nation faces. We are in the midst of significant public discussion of whether the United States is now experiencing a constitutional crisis or only on the verge of one. Prominent law professors who specialize in constitutional law are called upon to evaluate the circumstances and offer their views on whether there is a way out of this predicament and, if so, what. Most of the discussion has focused on whether or not the federal judiciary can protect the rule of law, including the Constitution, from a president who seems determined to destroy the existing system of checks and balances and convert the country into an autocracy. Relatively little of this public discussion has concerned the role that election law has played in getting the country into this mess or, especially, what potential changes to election law could protect the country from similar danger in the future (assuming the Constitution is capable of withstanding the present challenge).

If America is to understand how and why it got to where it is now (the proper diagnosis of the malady) and what must be done to put its constitutional system back on sound footing (the proper prescription for the cure), those of us in the field of election law will need to supplement the analysis being provided by professors of constitutional law. As someone who has had the privilege to teach both constitutional law and election law for over three decades, I appreciate what’s distinctive about both fields as well as the degree to which they overlap. In light of what I have learned over this time, I earnestly believe that what’s happening to the Constitution cannot be understood without the addition of a distinctive election law perspective. My Common Ground Democracy essay on how and why the Senate has failed us, like my recent scholarship on the relationship of Madisonian constitutional theory and electoral system design, is an effort to contribute to this endeavor. I look forward to reading what other election law scholars believe is called for in the current moment.

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“How the Trumps Turned an Election Victory Into a Cash Bonanza”

chicanery, conflict of interest laws

WSJ:

When Amazon.com founder Jeff Bezos dined with Donald Trump and his wife Melania at Mar-a-Lago in December, there was a lot at stake for both men: Bezos, a titan of industry whose company is crucial to the U.S. economy, was rebuilding his relationship with a resurgent and powerful soon-to-be president.

A lot was at stake for Melania, too: She was looking for a buyer for a documentary about her transition back to first lady. Her agent had pitched the film, which she would executive produce, to a number of studios, including the one owned by Amazon. 

As the meeting approached, Melania consulted with director Brett Ratner on how to sell her idea to the world’s third-richest man. Melania regaled Bezos and his fiancée, Lauren Sánchez, with the project’s details at dinner.

Just over two weeks later, Amazon, a company that prides itself on frugality and sharp negotiating, agreed to pay $40 million to license the film—the most Amazon had ever spent on a documentary and nearly three times the next-closest offer. 

Netflix and Apple declined even to bid. Paramount made a lowball $4 million distribution-rights offer. Disney, the most interested studio besides Amazon, offered $14 million. 

“We licensed the upcoming Melania Trump documentary film and series for one reason and one reason only—because we think customers are going to love it,” said an Amazon spokesman. 

The first lady’s cut is more than 70% of the $40 million, according to people familiar with the matter. And they’re still looking for more: Melania’s agent has been trying to sell “sponsorships” for the film—starting at $10 million—to prominent CEOs and billionaires who were at the inauguration, according to people familiar with the matter. Buyers would get thanked at the end of the credits and be invited to the premiere. These overtures were made independently of the deal with Amazon, which was unaware of the outreach, according to a person familiar with the matter.

The Amazon deal is just one of the ways the new first family has benefited from its return to the White House. Companies have directed about $80 million to members of the Trump family and the Trump presidential library so far, as defendants settle lawsuits the president previously filed against them and corporations enter into new business ventures, including the documentary. This figure doesn’t include potential gains from crypto pursuits.

Much of the legal settlement money will go to a fund for the president’s library, a not-for-profit whose mission is to “preserve and steward” Trump’s legacy. But Trump’s share of a $10 million settlement Elon Musk’s X agreed to this week is expected to go to him directly, according to people familiar with the matter.

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“Order to Drop Adams Case Prompts Resignations in New York and Washington”

chicanery, Department of Justice

NYT:

Manhattan’s U.S. attorney on Thursday resigned rather than obey an order from a top Justice Department official to drop the corruption case against New York City’s mayor, Eric Adams.

Then, when Justice Department officials sought to transfer the case to the public integrity section in Washington, which oversees corruption cases, the two men who led that unit also resigned, according to five people with knowledge of the matter.

The resignations represent the most high-profile public resistance so far to President Trump’s tightening control over the Justice Department. They were a stunning repudiation of the administration’s attempt to force the dismissal of the charges against Mr. Adams.

The departures of the U.S. attorney, Danielle R. Sassoon, and the officials who oversaw the Justice Department’s Public Integrity Section, Kevin O. Driscoll and John Keller, came in rapid succession on Thursday. Days earlier, the acting No. 2 official at the Justice Department, Emil Bove III, had ordered Manhattan prosecutors to drop the case against Mr. Adams.

The agency’s justification for dropping the case was explicitly political; Mr. Bove had argued that the investigation would prevent Mr. Adams from fully cooperating with Mr. Trump’s immigration crackdown. Mr. Bove made a point of saying that Washington officials had not evaluated the strength of the evidence or the legal theory behind the case.

Ms. Sassoon, in a remarkable letter addressed to Attorney General Pam Bondi, said that Mr. Bove’s order to dismiss the case was “inconsistent with my ability and duty to prosecute federal crimes without fear or favor and to advance good-faith arguments before the courts.”

“I have always considered it my obligation to pursue justice impartially, without favor to the wealthy or those who occupy important public office, or harsher treatment for the less powerful,” she said. “I therefore deem it necessary to the faithful discharge of my duties to raise the concerns expressed in this letter with you and to request an opportunity to meet to discuss them further.”

Ms. Sassoon, 38, made a startling accusation in her letter. She wrote that the mayor’s lawyers had “repeatedly urged what she said amounted to a quid pro quo, indicating that Adams would be in a position to assist with the Department’s enforcement priorities only if the indictment were dismissed.”

She said that Mr. Bove had scolded a member of her team for taking notes during the meeting and ordered that the notes be collected at the meeting’s end….

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“Elections, Courts, and Democratic Crisis: Constitutional Structure and the 2020 Election Cases”

Supreme Court

Manoj Mate has posted this draft on SSRN (forthcoming, University of Chicago Legal Forum). Here is the abstract:

This essay analyzes how the U.S. constitutional order responds to democratic crisis, by examining how the Supreme Court adjudicated cases related to and arising from the response to the effort to overturn the results of the 2020 election and the January 6th Capitol attack. It analyzes the Court’s approaches to constitutional structure in key cases and how these approaches impact constitutional capacity to address democratic crises. The essay analyzes key weaknesses in the U.S. constitutional framework and how the effort to overturn the 2020 election sought to exploit those vulnerabilities. It then examines how the Supreme Court adjudicated cases related to the effort to overturn the 2020 election, including Moore v. Harper, Trump v. Anderson, and Trump v. United States. I analyze how each of these cases reflected distinct models of constitutional structure and modalities or approaches to constitutional interpretation. I argue that application of constitutional structure-based approaches in these cases pose key challenges for the constitutional order’s ability to respond to democratic crises, and trace how the Court utilized structure-based approaches in ways that weakened our capacity to respond to democratic disaster.

I critiques these approaches and suggest considering insights from comparative constitutional law, including the concept of a “basic structure doctrine” to provide support for court enforcement of the disqualification provision in Section Three of the Fourteenth Amendment. This approach would go beyond analysis of constitutional structure and the allocation of power, to consider the threats posed by certain actions to core elements and features of U.S. constitutional governance and to reconceptualize how the 2020 election cases could be analyzes with reference to the basic features of the U.S. Constitution. This approach would go beyond analysis of constitutional structure and the allocation of power, to consider the threats posed by certain actions to core elements and features of U.S. constitutional governance.

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Top Recent Downloads in Election Law on SSRN

theory

Here:

RankPaperDownloads
1.Misconstruing the Electoral Count Act: A Response to Evan A. Davis and David M. Schulte
Seth Barrett Tillman
National University of Ireland, Maynooth (NUI Maynooth) – Faculty of Law
Date Posted: 13 Jan 2025
Last Revised: 04 Feb 2025		875
2.The “Determinative Popular Vote”: Measuring the Margin in U.S. Presidential Elections
Mark Haidar and Aidan Calvelli
Harvard University – Harvard Law School and Princeton University, Department of Politics, Students
Date Posted: 19 Dec 2024
Last Revised: 29 Jan 2025		325
3.Coups and Punishment in the Constitutional Order
Anthony Michael Kreis
Georgia State University – College of Law
Date Posted: 29 Jan 2025
Last Revised: 29 Jan 2025		179
4.Originalism, Election Law, and Democratic Self-Government
Joshua SellersU
niversity of Texas at Austin – School of Law
Date Posted: 04 Feb 2025
Last Revised: 04 Feb 2025		145
5.The Good Lawyers of January 6
W. Bradley Wendel
Cornell University – School of Law
Date Posted: 13 Dec 2024
Last Revised: 13 Dec 2024		135
6.“The Real Preference of Voters”: Madison’s Idea of a Top-Three Election and The Present Necessity of Reform
Edward B. Foley
Ohio State University (OSU) – Michael E. Moritz College of Law
Date Posted: 15 Jan 2025
Last Revised: 15 Jan 2025		101
7.The Good, the Bad, and the Ugly: Redistricting Commissions in the 2021 Cycle
Samuel Wang and Zachariah Sippy
Princeton University – Princeton Neuroscience Institute and Independent
Date Posted: 10 Jan 2025
Last Revised: 10 Jan 2025		100
8.Campaign Finance and Political Polarization
Richard H. Pildes
New York University School of Law
Date Posted: 13 Dec 2024
Last Revised: 10 Jan 2025		99
9.People v. The Court: The Next Revolution in Constitutional Law
David L. Sloss
Santa Clara University – School of Law
Date Posted: 17 Dec 2024
Last Revised: 22 Jan 2025		91
10.A Democratic Rule of Law
Jedediah S. Britton-Purdy
Duke University School of Law
Date Posted: 17 Dec 2024
Last Revised: 18 Dec 2024		72
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