An opinion in WinRed Inc. v. Ellison written by Judge Benton, joined by Chief Judge Smith (with some excerpts, below, lightly edited). (Judge Shepherd, “writing separately,” argues the case is not ripe for review and the court lacks jurisdiction.)Continue reading Eighth Circuit refuses to bar Minnesota Attorney General’s subpoenas against WinRed
In the fall of 2020, then-New York Rep. Lee Zeldin’s campaign submitted a report to federal regulators with a series of unusual expenses: 21 payments on a single day of exactly $199.99 each. The outlays – each just one penny below the dollar figure above which campaigns are required to keep receipts – all went to anonymous recipients.
It’s a pattern that has emerged recently in the filings of another New York Republican politician: Embattled freshman Rep. George Santos.
The Zeldin and Santos congressional campaigns had one more thing in common: They shared a treasurer, Nancy Marks.
The Long Island-based consultant is now in the spotlight as Santos faces multiple investigations over his finances and repeated lies about his resume and biography.
On January 31, Marks informed the Federal Election Commission that she had left her post after a little more than three years and two campaigns working with Santos. But her resignation is not likely to shield her from scrutiny, legal experts say. The FEC reports Marks filed on behalf of Santos’ campaign are the subject of complaints centered on allegations that records were falsified in violation of federal law.
In the first two decades of the twenty-first century, many American state governments implemented voter identification (ID) laws for elections held in their states. These laws, which commonly mandate photo ID and/or require significant effort by voters lacking ID, sparked an ongoing national debate over the tension between election security and access in a democratic society. The laws’ proponents—primarily politicians in the Republican Party—claim that they prevent voter fraud, while Democratic opponents denounce the disproportionate burden they place on historically disadvantaged groups such as the poor and people of color. While these positions may reflect sincerely held beliefs, they also align with the political parties’ rational electoral strategies because the groups most likely to be disenfranchised by the laws tend to support Democratic candidates. Are these partisan views on the impact of voter ID correct? Existing research focuses on how voter ID laws affect voter turnout and fraud. But the extent to which they produce observable electoral benefits for Republican candidates and/or penalize Democrats remains an open question. We examine how voter ID impacts the parties’ electoral fortunes in races at the state level (state legislatures and governorships) and federal level (United States Congress and president) during 2003 to 2020. Our results suggest negligible average effects but with some heterogeneity over time. The first laws implemented produced a Democratic advantage, which weakened to near zero after 2012. We conclude that voter ID requirements motivate and mobilize supporters of both parties, ultimately mitigating their anticipated effects on election results.
The first major criminal charges that Donald Trump could face for interfering in the 2020 election might come from Atlanta — and what happens in Georgia isn’t expected to stay in Georgia.
Fulton County District Attorney Fani Willis said her decision is “imminent” on whether to indict the former president, which would make him the first US president charged with a crime. That decision will have a ripple effect on the Justice Department’s special counsel probe and other investigations circling Trump.
If Willis goes first, that case would road-test possible testimony, helping to determine what evidence holds up in court and providing a blueprint for prosecutions involving other battleground states where Trump and his supporters tried to undermine President Joe Biden’s win.
Legal experts say nothing stops a US special counsel overseeing the federal Trump probe rom pursuing similar charges at the federal level, regardless of what Willis ultimately does.
John Mikhail has some interesting analysis in a post on James Wilson over at Balkinization:
The Independent State Legislature Theory
In light of current events, another pertinent topic is the Elections Clause. Its crucial word, generating the challenge in Moore v. Harper and other recent election law disputes, is “Legislature.” Who incorporated this word into the Elections Clause and vested state legislatures with authority over the “Times, Places, and Manner” of federal elections, subject to override by Congress? Once again, it was Wilson—a fact curiously underappreciated in the vast amount written about a case that has been called “the most important case for American democracy in the almost two and a half centuries since America’s founding.” Wilson was one of the period’s biggest champions of judicial authority, after all, along with democratic elections. As McCloskey emphasized half a century ago, he also was the only prominent founder to embrace the underlying principle of “one person, one vote” on which the Warren Court relied in Wesberry v. Sanders and Reynolds v. Sims.
So would Wilson have embraced the independent state legislature theory? In a word: No. In fact, he is about the last member of the founding generation who would have endorsed the concept of an “independent” state legislature. Wilson favored capable legislatures, to be sure, but he consistently advocated judicial review at both the state and federal levels. Between 1776 and 1790, he led the movement to impose more checks on the Pennsylvania legislature than existed in the state’s 1776 constitution. These efforts culminated in a “counter-revolution in Pennsylvania” and the adoption of a new state constitution in 1790. Wilson was a primary architect of that constitution—one of the only framers to play this leading role at the state level after drafting the federal Constitution—and almost certainly the author of its “free and equal” elections provision, which soon migrated elsewhere and now appears in some form in about one third of all state constitutions. The newly popular tendency to denigrate state constitutional provisions like this one and declare them judicially unmanageable in favor of the Elections Clause would likely have amused Wilson, since he drafted both provisions.
More importantly, the best evidence we possess affords little reason to doubt that Wilson would have repudiated the independent state legislature theory. Like virtually all the founders, he believed that legislatures were invariably limited by their constitutional mandate. In his last known publication, a 1797 letter to Congress, Wilson reinforced just this point by amplifying Justice William Paterson’s opinion in Vanhorne’s Lessee v. Dorrance. Quoting Paterson, Wilson wrote:
What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land. It is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it.
What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution. It is their commission, and, therefore, all their acts must be conformable to it, or else they will be void. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, is absolutely void (emphasis on “Constitution” and “void” added by Wilson).
These are the convictions of the man who actually drafted the Elections Clause. Significantly, they echo prominent criticisms of the independent state legislature theory almost word-for-word. Any lingering doubts about the dubious originalist credentials of this theory should have been dispelled by now (see, e.g., here, here, here, and here), but perhaps a closer familiarity with Wilson and his firm belief in the importance of constitutional limits on state legislatures can serve as another nail in the coffin—assuming the Supreme Court wants to maintain any credibility at all on this issue.
Twenty years is a long time for anything, especially a blog.
The first post appeared on February 18, 2003, and it looked like this:
Starting in the middle of this month, ELB contributors and friends of ELB will offer some reflections on election law, writ large, over the last 20 years.
So stay tuned!