California’s New Senator Need Not Be a Resident Before Being Appointed to Office

California Governor Gavin Newsom is going to appoint Laphonsa Butler as the new Senator to replace Senator Feinstein, who died last week.

Butler used to live in California and still owns a house here, but is currently a Maryland resident while she works for EMILY’s List.

As I told the LA Times, someone need not be a resident of California before taking a position as a U.S. Senator or Member of the House of Representatives—only a resident once assuming office (and Butler will be registering again as a California voter).

The relevant case is Schaefer v. Townsend, 215 F.3d 1031 (9th Cir. 2000), cert denied sub nom. Jones v. Schaefer, 532 U.S. 904 (2001), in which the Ninth  Circuit held that “California’s requirement that candidates to the House of Representatives reside  within the state before election violates the Constitution by handicapping the class of nonresident  candidates who otherwise satisfy the Qualifications Clause.”

Opinion by Judge O’Scannlain.

UPDATE: A much closer look in the weeds (that ends up in the same place) by Stephen Sachs. The textual wrinkle is a resident upon being elected (and this is an appointment).

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Breaking: Supreme Court Will Not Hear John Eastman Case Seeking to Wipe Out District Court Decision That He Likely Committed a Crime with Trump of Attempted Election Subversion; J. Thomas Recuses

From the order list:

The petition for a writ of certiorari is denied. Justice Thomas took no part in the consideration or decision of this petition.

I was glad to see, as I had suggested, that Justice Thomas recuse given the involvement of his wife in events with Eastman connected to Trump’s attempted subversion of the 2020 election.

My earlier coverage:

John Eastman Offers Warped View of 2020 Election, the January 6 “incursion into the Capitol,” and His Attempt to Subvert Election, in Supreme Court Brief Seeking to Erase District Court Case Finding He and Trump Likely Participated in a Crime

election subversion riskSupreme CourtRICK HASENEdit

Via Tierney Sneed at CNN, comes this cert. petition before the Supreme Court in No. 22-1138. Eastman is asking for Munsingwear vacatur of a federal district court ruling, which would wipe that case off the books on grounds it is moot. The case held that Trump and Eastman likely committed a crime in how they tried to interfere with the electoral college vote and turn an election loser into an election winner. Eastman now argues the case is moot because the documents and been released, and the ruling “created a stigma for both Petitioner and his client, the former President of the United States and current candidate for the presidency.”

Of particular interest to me was Eastman’s warped view of the facts of the 2020 election aftermath in his brief. It makes no mention of the crimes that Eastman and Trump were accused of participating in, only indirectly suggesting that Eastman did nothing wrong.

It also wrongly suggests that because the Wisconsin Supreme Court more than a year after the 2020 election found the use of drop boxes did not comply with Wisconsin law, that “thousands of illegal votes [were] included in certified votes in the election.” That is false. There was no finding that any illegal votes were cast in Wisconsin via drop boxes, even if the method used to collect those ballots cannot be used in future elections. Teigen v. Wis. Elections Comm’n, 976 N.W.2d 519 (Wis. 2022), did not involve any allegation that ballot drop boxes were used to commit election fraud, and there was no credible evidence presented that drop boxes in Wisconsin or anywhere else facilitated such fraud. Id. at 583 (Ann Walsh Bradley, J., dissenting) (“There is no evidence at all in this record that the use of drop boxes fosters voter fraud of any kind. None. And there certainly is no evidence that voters who used drop boxes voted for one candidate or party or another, tilting elections either direction.”); see also Trump v. Biden, 951 N.W.2d at 583 (Hagedorn, J., concurring) (“At the end of the day, nothing in this case casts any legitimate doubt that the people of Wisconsin lawfully chose Vice President Biden and Senator Harris to be the next leaders of our great country.”).

Eastman’s brief also wraps itself in the most extreme version of the independent state legislature theory, suggesting any time a state or local administrator administered an election in a way not explicitly described in a state statute, the election was conducted illegally. (See my amicus brief in Moore v. Harper for the absurdity of this position.)

Given Ginni Thomas’s involvement in some of these same events, I hope that Justice Thomas will be recusing from considering this cert. petition.

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Democratic, Republican fundraising for election litigation hits $22 million in 6 months of 2023-24 election cycle, half of last cycle to date

After witnessing a non-presidential election cycle with $154 million earmarked for election litigation to the major political parties, I expected to see continuing climbing figures. Not so fast. The 6-month figures are in, and a mere (?) $22.6 million was raised. That’s down from more than $41 million in the first six months of 2021-22, but up from $13 million in the first six months of 2019-20 (also a presidential cycle).

That’s a bit deceptive, because the DNC pulled in a whopping $17 million in those first six months of 2021. I haven’t tracked down the source for this (but some enterprising reader might be inclined to do so!), but I wonder if some combination of January 6 plus election law challenges in states like Texas and Georgia in early 2021 prompted a flurry of fundraising that we’re just not seeing matched this cycle.

Here are the totals so far.

DNC: $2,642,455

RNC: $3,320,230

DSCC: $3,012,092

NRSC: $3,930,690

DCCC: $3,783,660

NRCC: $5,991,082

Democratic National Party Totals: $9,438,207

Republican National Party Totals: $13,242,002

(Other: $305)

Grand Total: $22,680,514

Republicans lead Democrats, unlike last cycle where Republicans were playing catch-up. It’s possible some of the lackluster DNC fundraising relates to joint fundraising committee decisions from the Biden campaign (which has also had tepid fundraising overall), which puts earmarking funds for the “recount” and related funds at the bottom of the priority for the distribution of fundraising. Or other factors are at play. We’ll see how the cycle proceeds.

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“Why is an Arizona State University law clinic defending Kari Lake?”


Kari Lake, the GOP Senate hopeful from Arizona, still contests her narrow loss in the 2022 Arizona governor’s race and proclaims herself the state’s “lawful governor.” The former television newscaster also baselessly disputes President Donald Trump’s 2020 election defeat and says Joe Biden is an “illegitimate president.” Her lawyers have been sanctioned by the state supreme court court for making “false factual statements.”

But now she has found a defender in what might seem like an unlikely place: a law clinic at Arizona State University.

In August, some university donors and alumni were flummoxed to see the Arizona State clinic listed as “Counsel for Defendant Kari Lake” on a motion to dismiss a defamation lawsuit filed against her by a Republican election official. In the suit, Stephen Richer, recorder for Maricopa County, alleges that Lake falsely accused Richer of intentionally sabotaging the gubernatorial election to help her opponent, resulting in violent threats against Richer and his family. In its motion for dismissal, the university clinic argues that Richer’s suit is an attempt to squelch Lake’s free-speech rights.

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October 20 Free Online Conference from the Safeguarding Democracy Project:  “The Law and Politics of Potentially Disqualifying Donald Trump from Running for President”

Dynamite lineup: October 20, 9:00am-1pm – The Law and Politics of Potentially Disqualifying Donald Trump from Running for President Online Conference Registration link: Conference: The Law and Politics of Potentially Disqualifying Donald Trump from Running for President Friday October… Continue reading