I just posted this paper, written for the Ohio State Law Journal’s symposium on my book, “Aligning Election Law.” The paper explores how the principle of alignment — congruence between governmental outputs and popular preferences — could be incorporated into mainstream constitutional law. Here’s the abstract. I’ll also be giving the Constitution Day Lecture at Drake University today based on the paper.

At present, American constitutional law gives short shrift to the democratic value of alignment (congruence between governmental outputs and popular preferences). But it doesn’t have to be this way. In this symposium contribution, I outline three ways in which constitutional law could incorporate alignment. First, alignment resembles federalism in that it’s a principle implied by the Constitution’s text, structure, and history. So doctrines analogous to those that implement federalism could be crafted to operationalize alignment. Second, comparative constitutional law recognizes democratic malfunctions that involve misalignment as well as innovative judicial remedies for these problems. Likewise, American constitutional law could appreciate the full arrays of misaligning threats and potential judicial responses to them. Lastly, one of the key concepts of modern originalism is the construction zone, in which disputes must be resolved on grounds other than the constitutional text’s original meaning. Alignment could be a factor that courts consider in the construction zone, pushing them to further, not to frustrate, this value.

VoteBeat’s article explains the new compromise proposal aimed at getting holdouts to agree to early processing of absentee ballots. The compromise includes “regulations for ballot drop boxes and an explicit ban on clerks fixing, or curing, errors on ballots.” Will Governor Evers sign the bill, assuming it passes? The article states: “Evers’ team has said he would sign a Monday processing proposal that’s packaged with other measures, as long as they didn’t contain a “poison pill” or make voting harder.” That leaves me still unclear on the measure’s ultimate fate.

Courthouse News reports on the federal district court’s denial of the Trump Administration’s motion to dismiss in the lawsuit challenging Trump’s executive order on elections. The court ruled that the states have standing to sue and that they plausibly allege violations of federal law, including the NVRA.

Comprehensive coverage from The Washington Post.

I was struck by reading two sharply contrasting stories about different civics education initiatives this week. First, within an article focusing on on the “In Pursuit” project (which has prominent current figures discussing significant individuals in American history), the N.Y. Times links to a story about a coalition of organizations devoting $56 million to improved civics education. This effort will support, among other things, “expansion of National Constitution Center programs.” Second, the N.Y. Times also has a story about another civics education effort led by President Trump and his administration. This one reportedly will bypass “traditional civic education groups, such as the National Constitution Center.”

It is perhaps not surprising that a time of hyper-polarization civics education itself will become polarized. I suppose we can hope that debating the meaning and fundamental values of America in the context of civics education will at least cause Americans to focus on these matters and decide for themselves what their country stands for and what they want it to be–and that self-government rooted in free and fair elections will be part of that core commitment. That kind of aspiration was expressed by Donna Phillips, the CEO of the Center for Civics Education, who told the Times: “‘My hope is that the announcement of [the Trump-led] coalition is a starting point for the entire nation to prioritize civics.'”

Characteristically thoughtful and eloquent words from the N.Y. Times columnist. It begins: “It’s hard to grasp the magnitude of the emerging threat to free speech in the United States.” It ends by quoting some of Justice Robert Jackson’s best lines… Continue reading

N.Y. Times reports on Adam Jentleson’s new organization, which is “starting with an annual budget of $10 million … [and] is subsidized by a roster of billionaire donors highlighted by Stephen Mandel, a hedge fund manager, and Eric Laufer, a… Continue reading

Interesting story in The Verve. “’It’s essentially a way for [Zuckerberg] to spend the company’s money on his political choices, whereas at a company like Google, there’s not a single person who’s a majority shareholder who can dictate what the… Continue reading

AP reports. DOJ claims that the states are violating the NVRA, HAVA, and the Civil Rights Act of 1960. Both states are vigorously opposing DOJ’s efforts to get access to the state’s unredacted voter registration database, citing privacy concerns. This… Continue reading

At NYU’s Democracy Project, Professor Wojciech Sadurski, Challis Professor of Jurisprudence at the University of Sydney and Professor at the University of Warsaw Center for Europe, has an important essay on the struggle of how democrats should respond, once… Continue reading

Wall Street Journal editorial. It begins: “Is a basic understanding of the First Amendment too much to expect from the nation’s Attorney General?”

The Wall Street Journal reports. The article points out that Trump has already endorsed Secretary of State Brad Raffensperger’s opponent for the Republican nomination, Lt. Gov. Burt Jones. The state AG, Chris Carr, is also in the race for the… Continue reading

POLITICO has a story that is mostly about Bondi but what it says about Trump struck me as most significant. It begins with Bondi: “Attorney General Pam Bondi on Tuesday appeared to walk back comments promising to target broadly defined… Continue reading