“Revisiting Section 2 and the Electors Clause: On the Right of the People to Choose Presidential Electors”

electoral college

Mark Bohnhorst has posted this draft on SSRN. Here is the abstract:

Recent scholarship argues that Section 2 of the Fourteenth Amendment protects the people’s right to elect presidential electors. This Article offers fresh perspectives both on Section 2 scholarship and on the underlying history of the Electors Clause. It begins with a review of modern interpretations of the Fourteenth Amendment. It then summarizes the author’s recent research into the text and structure of the Electors Clause and its ratification. It also offers new perspectives on consequential debates over the constitutionality of legislative elections that began in 1800 and ended in 1826. When Section 2 was drafted in June 1866, the popular election of presidential electors was universal, challenged only by South Carolina’s formerly renegade but recently repudiated and abandoned practice. Section 2 created or reaffirmed the rights of the people and protected against backsliding. Our subsequent history-including a second ratification of the words of the Electors Clause in 1961-confirms the people’s right to elect the president.

See also this companion piece:

This paper is a full report of the author’s recent research into the meaning of the Electors Clause. It supports the thesis that the “plenary power” dictum of McPherson v. Blacker is based on a fundamental misreading of history. (Part I.D is a full treatment of ratification, which is summarized in a companion article that is forthcoming in Denver Law Review, SSRN # 5180256. The Appendices are new.) This paper takes an in-depth look at the following topics: (i) the constitutional text and structure, (ii) ratification, (iii) the state elections of 1800 in Virginia and New York, (iv) Rufus King’s advocacy in the Senate (1816-1824), and (v) the state elections in New York in 1823-24 (including Rufus King’s role in those elections). The paper adds to the already substantial evidence that the historical review that underlies McPherson’s “plenary power” dictum is unmoored from the history of the constitutional convention, the ratification, and the nation’s most serious and consequential debates about the meaning of the Electors Clause.

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“Elon Musk’s pro-Trump PAC failed to pay swing state petition signers, new suit alleges”

campaigns, chicanery

CNBC:

Elon Musk’s America PAC didn’t keep its promise to pay swing state voters who signed a pro-Trump petition ahead of the 2024 election, and who enlisted others to do the same, a new lawsuit alleges.

The case, a proposed national class action suit, was filed within the last week in a federal court in the Eastern district of Pennsylvania, a state that was viewed as critical to Donald Trump’s effort to return to the White House.

A related case was filed in April that only applied to residents of Pennsylvania.

Lead plaintiffs are three people who participated in the America PAC initiative while they were living in Pennsylvania, Nevada and Georgia. One formally worked as a canvasser for America PAC in Michigan and in Georgia, the complaint says.

In his efforts to propel Trump to victory, Musk spent around $300 million while also stumping at rallies and online for his preferred candidate. Musk, the world’s wealthiest person, had offered payments — initially $47 and later $100 — to those who signed a petition supporting his pro-Trump PAC. Additional payments were offered for each eligible person they referred who signed the petition.

Musk said the petitions showed support for the First Amendment and Second Amendment. The PAC viewed the awards as a way to drive voter registration and turnout in swing states.

The complaint says the plaintiffs are “in communication with numerous others who referred voters to sign the America PAC petition, who are likewise frustrated that they did not receive full payments for their referrals.” The group, represented by the law firm Lichten & Liss-Riordan, expects there to be “more than 100 Class Members,” with payments owed them “expected to exceed $5,000,000,” the filing says….

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Banana Republic Dept: “Comey under investigation for ‘threat’ to Trump on social media, officials say”

authoritarian threats in US

WaPo:

Trump administration officials said Thursday that they would investigate former FBI director James B. Comey, whom they accused of threatening President Donald Trump after Comey posted a picture of seashells on a beach arranged to spell out “86 47.”

Trump is the 47th president; “86” can mean banning or removing someone, but it can also be slang for killing a person.

“Cool shell formation on my beach walk,” Comey wrote in the original Instagram post, which he quickly removed after claims that the phrase communicated the threat of violence. In a follow-up post, Comey wrote that he assumed the shells he saw “were a political message” but said he was not advocating violence.

Trump insisted in a TV interview that Comey “knew exactly” what it meant.

“If you’re the FBI director and you don’t know what that meant, that meant assassination,” Trump told Fox News in an interview scheduled to air Friday evening. “And it says it loud and clear.”

Homeland Security Secretary Kristi L. Noem also accused Comey of calling for Trump’s assassination, writing on X on Thursdaythat the Department of Homeland Security and the Secret Service were “investigating this threat and will respond appropriately.” FBI Director Kash Patel said his agency would “provide all necessary support” as part of the investigation.

Director of National Intelligence Tulsi Gabbard said on Fox News that she believes Comey should be in jail because of the post and accused him of “issuing a hit” on Trump.

Asked what he wanted to happen to Comey, Trump told Fox News host Bret Baier it was up to “Pam and all of the great people,” referring to Attorney General Pam Bondi.

It is the job of the U.S. Secret Service, which is part of DHS, to explore potential threats to the president, but in general such inquiries are launched only when a person is believed to be actively threatening harm.

Used as a verb, “86” originated in hospitality, meaning to refuse service to a customer or that a menu item was not available, and its use expanded over time to broadly refer to rejecting, dismissing or removing, according to its dictionary definition. It can also refer to killing something or someone.

“I didn’t realize some folks associate those numbers with violence,” Comey said in his follow-up post. “It never occurred to me but I oppose violence of any kind so I took the post down.”…

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“Democrats Won a North Carolina Supreme Court Seat. But They Lost Control Over the Board That Sets Election Rules.”

election administration, The Voting Wars

ProPublica:

Last week, North Carolina Democrats scored a victory when Republican Judge Jefferson Griffin, who’d lost a tight race for the state’s Supreme Court, finally conceded defeat after a six-month legal battle to throw out ballots that he contended were illegitimate.

But that same morning, the party suffered a setback that may be more consequential: losing control of the state board that sets voting rules and adjudicates election disputes.

The board oversees virtually every aspect of state elections, large and small, from setting rules dictating what makes ballots valid or invalid to monitoring compliance with campaign finance laws. In the Supreme Court race, it consistently worked to block Griffin’s challenges.

The conservative takeover comes after the Republican-controlled state legislature passed a law stripping the power to appoint board members from North Carolina’s Democratic governor and gave it to the Republican state auditor.

Although a board spokesperson said its chair was traveling and unavailable to answer questions about how the new Republican majority would reshape North Carolina elections, experts said it will likely make it easier for challenges like Griffin’s to succeed and reduce expansive access to early voting….

Gerry Cohen, a former counsel for the legislature who is now a Democratic member of the Wake County Board of Elections, said it was “a real possibility” that a Republican-controlled state board “would have approved some of Griffin’s challenges” to throw out ballots. If that had happened, Riggs could have fought the board’s decision in the courts and won, but she would have then been litigating against the board rather than on the same side as it.

The law that gave the state auditor the power to appoint members of the state election board also gives him similar authority over North Carolina’s county election boards, which will mean each of them will be controlled by Republican majorities by the end of next month….

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“Trump Can’t Stop Trolling Everyone About 2028”

authoritarian threats in US

Political Wire:

Donald Trump is once again suggesting — this time while addressing U.S. troops in Qatar — that he might run for a third term in 2028.

Said Trump: “As you know we won three elections. And some people want us to do a fourth. I don’t know. I’ll have to think about that. You saw the new hat? It says Trump 2028.”

It’s classic Trump: part trolling, part performance art, and wholly inappropriate in front of active-duty service members.

The line might have drawn laughs, but it puts a spotlight on a president who, despite maintaining a stranglehold on the GOP base, is already the most unpopular president this early in his term in modern polling history….

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“Remembering John H. Thompson”

election law biz

Sad News:

It is with great sadness I share news of the passing of former U.S. Census Bureau Director John H. Thompson, who was a member of the Census Bureau family for over 30 years and played a critical role in two of this century’s censuses.

At his 2013 Senate confirmation hearing, Mr. Thompson said, “My goal will be to leave a legacy of innovation in all areas and in all levels of the Census Bureau and to design a 2020 Census that represents a fundamental change for the future.” That statement perfectly encapsulates his commitment to innovation and modernization.

John first came to the Census Bureau in 1975. Over the next few decades, he served in many different roles — in the Statistical Methods, Statistical Support, Decennial Studies, and Decennial Management Divisions, and then as the associate director for decennial census programs. As the senior career executive responsible for all aspects of the 2000 Census, he helped pioneer the use of state-of-the-art technology in optical scanning and intelligent character recognition. This allowed the Census Bureau to capture all the information from census questionnaires, including handwritten items, and convert them into computer processed data.

In 2002, he went to work for the University of Chicago’s National Opinion Research Center, becoming president and CEO in 2008. But ultimately, the Census Bureau called him back home. In 2013, President Obama nominated Mr. Thompson to lead the Census Bureau, and he was unanimously confirmed by the Senate. He was sworn in as director on August 8, 2013.

As director, his vision for innovation and transformation shone through once again. He guided preparations for the 2020 Census, which became our nation’s most automated and technically advanced ever. With his decades of experience as a public servant, he understood the importance of our agency’s organizational health and made it a priority.

Even beyond the Census Bureau, Mr. Thompson was a longtime leader in social science research. He was an elected fellow of the American Statistical Association and past chair of its Social Statistics Section and Committee on Fellows. He served on the Committee on National Statistics at the National Academy of Sciences and was a member of its Panel on the Design of the 2010 Census Program of Evaluations and Experiments and Panel to Review the 2010 Census.

I feel privileged to have known and worked with John. We mourn the loss of this Census Bureau leader, whose legacy of transformation continues to this day. We share our sorrow at his passing with his wife, Bonnie, and all his friends and family.

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