Votebeat reports, focusing on the pending case in the Pennsylvania Supreme Court, but also noting the recent Third Circuit decision: “The Republican National Committee is asking the full bench of 3rd Circuit judges to rehear the case. … And if the state Supreme Court rules for the ACLU, Republicans could in theory appeal that to the U.S. Supreme Court, too, if they believe the state court overstepped.”

The article includes this ELB-related analysis:

“Rick Hasen, a professor at UCLA Law School who tracks election litigation, says the two-year federal election cycle of 2023-24 saw more election lawsuits than any other period since the beginning of his database, in 1996.

“’Political operatives recognized that in very close elections, the rules of the game matter a lot,’ he said.

“Hasen said while it’s rare that litigating over technical issues in election law can change the outcome of a race, it’s not impossible.

“For example, in 2008, Al Franken, a Democrat, initially lost a bid for a Minnesota U.S. Senate seat to incumbent Republican Norm Coleman by a few hundred votes. But the close margin triggered a legally required recount, during which attorneys for Franken argued that some absentee ballots had been improperly rejected and should be counted. Franken ultimately won.

“Hasen said there have always been cases like that — post-election disputes in close races over which ballots to count — but part of what sets the current moment apart is that we are now also seeing pre-election disputes over what ballots should be counted.

“Derek Muller, an election law professor at Notre Dame Law School, has pointed to another contributing factor: a 2014 federal campaign finance change allowed fundraising specifically for election litigation. Hasen said the change created an incentive to pursue more cases, ‘because otherwise you’re kind of leaving money on the table.’

Even against that backdrop, Hasen said the amount of litigation over Pennsylvania’s mail ballot dating requirement stands out. Factors that could be fueling it, he said, include the commonwealth’s status as a swing state, a perception that less restrictive mail ballot rules help Democrats and hurt Republicans, and a general sense that it’s unfair to reject a ballot that election officials know was received on time and would otherwise be counted.

‘If Pennsylvania were not so polarized, or if one party controlled the legislature and the governor’s office, then you could well see a legislative fix for this problem,’ he said.”

POLITICO reports that “Charles Munger Jr. has spent more than $30 million to defeat a redistricting campaign. … He dedicated about $14 million to sell Californians on ballot measures to create an independent redistricting commission, which he argued would permanently take the partisan sting out of the state’s politics. … But the threat of partisan gerrymandering is back, and so is Munger.”

Michelle Cottle’s N.Y. Times Opinion essay on the Republican representatives from California who may end up as “collateral damage” from the “redistricting war” that Trump has unleashed.

N.Y. Times reports.

“The chaos is partly from an act of fate — the death of Mr. Turner on March 5 — but mostly from acts of humans. A special election to serve out the remainder of Mr. Turner’s term is set for November, eight months after his death, and even then, it is expected to end up in a runoff that will come in mid- to late January.

“The bang-your-head-against-the-wall part for voters, candidates and election officials is that Mr. Turner’s replacement will serve the constituents of the old 18th district. Right after voters select that representative, they will have to return to the polls in March for the 2026 midterm election primary — using the completely redrawn congressional map.”

Last week at NYU’s Democracy Project‘s series of 100 essays in 100 days, we featured two essays, among others, on the role of Congress in this moment.

One, from congressional expert Molly Reynolds, is titled When It Comes to its Spending Power, Congress Must Save Itself. The second, from Andy McCarthy, who is former federal prosecutor, bestselling author, and National Review contributing editor, is titled Bring Back Congress.

Here’s an excerpt first from Molly’s piece:

The threat to Congress comes not only from the executive branch directly. While, for a range of historical and institutional reasons, adjudicating spending questions is not entirely comfortable terrain for judges, the federal courts have become the primary venue in which the battle over the executive’s conduct is being fought. The decisions so far have been a mixed bag for Congress and, because they’ve mostly come from district and circuit courts, many are still winding their way through the legal process. But even if the judiciary ends up rendering decisions in favor of congressional choices—an outcome, to be clear, that’s far from certain—relying on the courts to backstop congressional power can be a dangerous business. The harm that can be done while litigation unfolds can be real, and the time to resolution can be long…

There are steps Congress can take to address this worsening imbalance of power between the branches. Moving language, for example, that has historically appeared in documents accompanying spending bills into the text of legislation might help bolster pro-Congress arguments in future litigation….

Writing new laws that seek to prevent the executive branch from overreach—while a helpful start—only goes so far when the underlying problem is that the very same executive branch is disregarding the laws Congress has already written. Any meaningful, long-term solution that restores congressional power will require members of Congress to decide for themselves to withhold support for something the executive branch cares about. In a period of unified party control and strong partisan loyalty, it is somewhat difficult to imagine the congressional majority stepping up to the plate.

Here is an excerpt from Andy’s piece:

Just as we sometimes unthinkingly laud democracy when we mean republic, so too are we apt to describe the branches of our federal government as co-equal.

No. They are peers, to be sure. Each is bound by the rudimentary principle that their powers are separate: these discrete authorities may and often should be exercised in unison (e.g., the president and Congress acting together against a foreign threat to our defense), but never by the same set of hands. The separate branches, however, are not equals.

Congress is the Article I power. As the breadth of its enumerated powers elucidates, it is primus inter pares. In a republic framed to achieve representative governance, it is the representative. Indeed, in the Constitution’s original blueprint, the House was the only component of the three branches that would be directly elected by the people – and only by the people in the jurisdiction to be represented by a congressman. (It would be a man back then, but a self-correcting republic overcomes all manner of waywardness.)

It was Congress that embodied the republic’s democratic aspirations. Our aspirations haven’t changed, but without a functioning legislative branch, they are certain to be frustrated. Our governing framework cannot be sustained in such circumstances.

We are a deeply divided country. Yet, that is our default condition historically. We’ve thrived, not self-immolated, because constitutional government through deliberative legislation by our representatives works. It provides stability even when our differences are immense. Without it, our divisions will remain but our stability will continue to erode as each presidential election portends new, contradictory extremes of government by executive order.

At the Volokh Conspiracy, Ilya Somin has a piece that provides a policy critique of this decision from his Cato colleague David Bier and then a discussion of the legal issues. Here’s some of the legal discussion:

As David Bier notes, the new $100,000 fee is likely illegal, because the statutes authorizing H-1B fees only allow for fees to recoup administrative costs and some other types expenses. They certainly don’t authorize anything remotely resembling a $100,000 fee.

Trump is trying to get around these constraints by relying on  8 U.S.C. Section 1182(f), gives the president the authority to “bar the entry of any aliens or of any class of aliens into the United States” whose admission he finds “would be detrimental to the interests of the United States.” …

[I]t is far from clear that Section 1182(f) and Trump v. Hawaii give the president a blank check to exclude any potential immigrants for any reasons he wants, or to impose any fees he wants. In 2020, as David Bier also notes, Trump tried to impose a similar ban on new H-1B visas, but a federal district court ruled against the ban. As the court pointed out, ” there must be some measure of constraint on Presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative.”

The Supreme Court has repeatedly indicated that immigration is an area of legislative power. If so, there must be at least some constraint on how far it can be delegated to the executive.

Over at Divided Argument, Sam Bray has posted this abstract of an essay he has just released. I have wondered about some of these questions, and Sam has been influential with the Court, as in the universal injunction case: When… Continue reading

POLITICO reports. “Democrats trying to counter President Donald Trump’s red-state gerrymander are facing a roadblock. Fifteen roadblocks, actually. “That’s how many Democratic-led states have a political trifecta — the same setup that helped Texas Republicans push through new maps last … Continue reading

Peter Baker in The NY Times details all the ways Trump’s attacks on dissent differs from his predecessors. A few paragraphs in this piece, all of which is well worth reading, struck me in particular: “’Donald Trump is hardly the… Continue reading

With Charles Stewart, Seth Bluestein, and Karen Brinson Bell. You can watch it here.

N.Y. Times reports on Trump’s escalation of demands that federal prosecutors go after his enemies. This comes on the heels of Trump’s repeated assertions that broadcasters should lose their licenses for criticizing him.

Ruth Greenwood was the guest on the Touro Law Review podcast.

POLITICO essay worth reading. I’m not sure I’m convinced by its “glass half full” account on the current situation, but it’s definitely food for thought. In any event, it doesn’t change the need for actors within the system to do… Continue reading