Breaking–District Court preliminarily enjoins parts new Arizona voter law

The U.S. District Court for Arizona has preliminarily enjoined two key provisions of Arizona’s recent effort to regulate voter registration. Importantly, it found the statute’s provision seeking to criminalize efforts to register out-of-state voters is likely unconstitutionally vague and further that the registration cancellation provisions likely violate the National Voter Registration Act.

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NCC’s Guardrails of Democracy Project

On Wednesday, the National Constitution Center is hosting a webinar as part of its Guardrails of Democracy project. The specific topic is “Election 2022: Are We Ready?” David French, Ilya Somin, and I will be participating on behalf of the three teams that NCC created to prepare reports for the Guardrails project.

In addition, Ilya recently hosted a symposium of blog posts at the Volokh Conspiracy on the Guardrails project. Here are links to the symposium pieces:

Lana Ulrich, The National Constitution Center’s “Restoring the Guardrails of Democracy” Initiative

Edward Foley, Three Reforms to Protect Democracy from Election Denialism

Walter Olson, Restoring the Guardrails of Democracy: A Libertarian View

David French, An Upgrade, not a Rebuild

Walter Olsen, Guardrails of Democracy, Extended: Comparing Notes On The Team Libertarian Report

Edward Foley, Three Points of Agreement on Democracy Protection

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Insightful Preview of Upcoming VRA Case

Linda Greenhouse has written, John Roberts’s Long Game. Is this the End of the Voting Rights Act?–an insightful preview of Merrill v. Milligan, which will be argued on October 4. The lengthy Atlantic article cuts straight to the point:

“The justices have framed the question for this round as ‘whether the State of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act.’ But the real question, the perilous one underlying that seemingly benign formulation, is this: Is Section 2 itself constitutional?

The rest of the article proceeds to explain the intersections between John Roberts’s early career and the doctrinal backstory. It is too bad she did not directly explain City of Boerne v. Flores (1997) which would bolster why she is right to be concerned, but otherwise I found this a very accessible summary of the stakes.

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Challenge to Delaware’s Efforts to Balance Partisan Composition of Judiciary to Proceed

AP: Delaware courts (including its Supreme Court, Court of Chancery and Superior Court) are subject to a constitutional provision that seeks to maintain a partisan balance on its courts by providing that “no more than a bare majority of judges on [certain] courts can be affiliated with a single political party.” The provision has been subject to unsuccessful challenges before, but on Friday a federal district court refused to grant a motion to dismiss in a new suit, which argues that by effectively barring independents from running for judgeships the Delaware Constitution violates the First Amendment.

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Is there a political question issue lurking in Moore v. Harper?

Plenty of commentary and analysis over Moore v. Harper focuses on the meaning of the Legislature Thereof Clause tucked inside the Elections Clause. But one concept has received essentially zero examination: the political question doctrine. Some of the history of redistricting disputes and the Elections Clause touch on either the notion that review of issues arising under the Clause are left to Congress, not to the federal courts; or that there are no judicially-manageable standards for courts in patrolling the Elections Clause. I thought I’d take a look at those issues ahead of Moore.

Continue reading Is there a political question issue lurking in Moore v. Harper?
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“Top State Judges Make a Rare Plea in a Momentous Supreme Court Election Case”

N.Y. Times Sidebar: The Conference of Chief Justices has filed a brief in Moore v. Harper opposing the independent state legislature doctrine. The Chief Justice of the Texas Supreme Court (accurately, in my view), told the N.Y. Times: “It’s the biggest federalism issue in a long time . . . Maybe ever.”

“The conference’s brief, which was nominally filed in support of neither party, urged the Supreme Court to reject that approach, sometimes called the independent state legislature theory. The Constitution, the brief said, “does not oust state courts from their traditional role in reviewing election laws under state constitutions.”

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