“The Basis for Election Exceptionalism in Justiciability and Related Doctrines: ‘Constitutional Compensation’ in Light of Purcell”

court decisions, Supreme Court

Vik Amar and Evan Caminker have posted this draft on SSRN. Here is the abstract:

Pursuant to the so-called Purcell doctrine, lower federal courts (and perhaps the U.S. Supreme Court itself) are supposed to refrain from issuing remedies that would alter the rules for election administration in the runup to Election Day.  Whatever may be invoked to explain or support the instincts behind the Purcell rule (e.g., concerns about voter confusion, candidate and campaign expectations, smooth operation of election logistics, etc.), one tremendously problematic entailment of Purcell is that elections are held (and candidates are elected and policies are determined) under (often substantial) legal clouds.  Even if those clouds can be removed for future election cycles (an outcome itself not always easy under current justiciability rules), the fact remains that, because of Purcell, binding elections (with momentous consequences) take place even when serious doubt exists about the legality of the contests under federal statutes and the Constitution.  Because of these deleterious consequences (and even assuming the Purcell doctrine makes some sense or in any event is entrenched at the Court), we seek, making use of “compensation” theory, to identify ways that justiciability doctrines (e.g., mootness, first- and third-party standing, ripeness, vagueness and overbreadth) and related constraints on access to federal fora can and should be overtly modified to offset Purcell’s undesirable effects, and facilitate earlier and easier federal adjudication and remediation in election-related challenges.  It turns out the foundations of such an election exceptionalism as regards access to federal courts has been partially (if inconsistently and haphazardly) laid by the Supreme Court, but the Court has never meaningfully tried to tie the various foundation beams together in a structurally sound and coherent way, much less describe and explain what the doctrinal edifice should look like and why.  That is what we seek to do in this Article.

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“Republicans are turning Biden’s voter registration order into a partisan flash point”

NVRA (motor voter), The Voting Wars, voter registration

Hansi Lo Wang for NPR:

In these final months before this fall’s election, Republican officials are ramping up attacks on a three-year-old executive order President Biden issued to try to get more eligible voters signed up to cast ballots.

The order calls for federal agencies to promote voter registration and participation in ways that are “consistent with applicable law.” Many election experts see the effort as a worthwhile attempt to take advantage of the regular interactions eligible voters have with the government and address long-standing barriers to the ballot, including those facing people of color, those with disabilities, those in federal custody and those serving overseas in the U.S. military.

“It is our duty to ensure that registering to vote and the act of voting be made simple and easy for all those eligible to do so,” the 2021 order says.

But now, as the Democratic president faces reelection, his order has sparked growing pushback from the right, most recently congressional subpoenas to agency directors from the GOP-controlled House Administration Committee and an attempt by a group of Republican state lawmakers in Pennsylvania to get the U.S. Supreme Court to take up a dismissed lawsuit over the order.

Backed with no substantial evidence, GOP lawmakers and state election officials, along with right-wing activists, have launched a barrage of claims that the Biden administration is using this order to overstep the federal government’s role in elections, garner more Democratic voters and register non-U.S. citizens, who cannot legally vote in federal elections.

“This Executive Order is another attempt by the Biden Administration to tilt the scales ahead of 2024,” Republican Rep. Bryan Steil of Wisconsin, chair of the House Administration Committee, said this month in a press release referencing “Bidenbucks,” what has become shorthand for unsubstantiated allegations that the administration is misusing federal tax dollars to benefit Biden’s reelection campaign.

What the order has actually done, however, has not fully satisfied its supporters.

A few federal agencies have started new partnerships with states to help with voter registration, and others have released guides, mailers and updated websites. But it’s unclear how many new voter registration applications the order has yielded so far.

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“GOP recruits poll monitors from suburban areas to monitor the vote in Democratic cities”

election administration

NBC News:

Republicans have made suburban areas a recruiting ground for their army of Election Day poll monitors, with plans to deploy some into urban, Democratic epicenters that have remained the focus of conservatives’ erroneous claims of voter fraud.

The strategy has the potential to be uniquely disruptive to voters and election staff this fall, nonpartisan elections experts say, given that the volunteers would be dispatched to monitor areas with different political and demographic makeups than their own — and potentially different protocols for casting and counting ballots.

“In addition to voter intimidation risks, I think that the strategy also poses the potential to be just disruptive to the election process in general,” said Jonathan Diaz, the director of voting advocacy at the nonpartisan Campaign Legal Center.

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“Supreme Court Ruling Reflects Challenges of Jan. 6 Prosecutions”

chicanery

Alan Feuer NYT analysis:

The Supreme Court’s decision on Friday that prosecutors had misused an obstruction law in charging hundreds of rioters who attacked the Capitol is the latest example of the persistent challenges the Justice Department has faced in grappling with the consequences of Jan. 6, 2021.

By and large, the department has succeeded over the past three years in moving against members of the pro-Trump mob who sought to disrupt the certification of President Biden’s victory on Jan. 6, and in winning convictions on seditious conspiracy charges against members of two far-right groups that were instrumental in stoking the violence that day, the Proud Boys and the Oath Keepers.

But lacking any established legal blueprint for addressing an assault on the foundations of democracy, prosecutors sometimes got creative with the law. And that has left them vulnerable to second-guessing by the courts on how they have pursued criminal cases both against the rioters and against former President Donald J. Trump, and contributing to a long series of challenges and delays.

The court’s new ruling on the obstruction law will hardly cripple the Justice Department’s ability to go after the rioters, but it will constrain prosecutors by restricting the use of an important tool they have relied on to seek accountability against the most disruptive members of the mob….

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Breaking: Plaintiffs, Likely Fearing the Supreme Court Will Make Things Worse, Decline to Seek Supreme Court Review of Eighth Circuit Case Holding There’s No Right For Private Parties to Sue Under Section 2 of Voting Rights Act

Voting Rights Act
With today’s deadline, I have learned there will be no cert petition filed. This is a case from the Eighth Circuit that is wrong on the text of the Voting Rights Act, wrong on its history, and wrong on… Continue reading

Supreme Court Hands January 6 Rioters a Win in Fischer Case, But It Likely Won’t Help Trump Beat Similar Charges Against Him (Should He Ever Go To Trial on Election Interference)

election subversion risk, Supreme Court
The key holding in Fischer v. United States is to read the obstruction statute so that “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as… Continue reading