September 1, 2020
A Single Submission of Electoral Votes from a State The Twelfth Amendment is dangerously ambiguous. All it says on point is: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” It does not say what to do…
August 30, 2020
Introduction: The Attack on Vote-By-Mail President Trump’s hostility to vote-by-mail is intensifying. In a Politico interview on June 18, he said his “biggest risk” of losing the election would be his failure to stop widespread use of mailed ballots. The next day, Attorney General Barr echoed the theme in a Fox Business interview: “But when…
February 21, 2020
After Michigan voters used the ballot initiative process to enact several measures to which the state legislature was opposed, legislators enacted a statute in 2018 making it more difficult for their constituents to engage in direct democracy. Recently, in League of Women Voters of Michigan v. Secretary of State, the Michigan Court of Appeals held…
January 30, 2020
In November 2018, Florida amended its state constitution to restore voting rights to nearly 1.5 million ex-felons “upon completion of all terms of [their] sentence including parole or probation.” The ballot initiative, known as “Amendment 4,” was organized by Floridians for a Fair Democracy and spearheaded by Desmond Meade, an Orlandoan who overcame a felony…
December 29, 2019
The Thompson v. Hebdon per curium opinion is the latest example of the Roberts Supreme Court’s hostility to reasonable money in politics reforms like contribution limits, and its insistence on ignoring empirical data about campaign finance. In Thompson v. Hebdon, the Court remanded the case so that the Ninth Circuit could “revisit whether Alaska’s contribution…
November 27, 2019
What can states require of candidates for office before they may appear on a state’s ballot? Can they require petitions with thousands of signatures? What about health records? Birth certificates? College transcripts? While some ballot access laws are necessary to ensure organization and efficiency, others have the effect of frustrating democracy. Many times, ballot access…
October 23, 2019
As the 2020 census approaches, various controversies have emphasized the importance of census methodology on political representation. One impactful methodology is referred to as “prison gerrymandering.” The census counts incarcerated individuals as residents of the district in which they are imprisoned, as opposed to the district in which they permanently reside. The vast majority of…
October 15, 2019
The role of the judiciary in partisan gerrymandering is a topic du jour. This past summer, in a dispute over North Carolina’s congressional maps, the United States Supreme Court closed the federal courtroom doors to all partisan gerrymandering claims, declaring the issue non-justiciable in Rucho v. Common Cause. But the Court wrote that “[p]rovisions in…
March 13, 2019
This past week, Colorado joined a growing list of states that have signed on to the National Popular Vote Compact (NPVC). The NPVC is a proposed interstate compact in which the signatory states agree that they will appoint their presidential electors in accordance with the national popular vote rather than their own state electorate’s vote….
January 17, 2019
American politics features two political parties that cannot agree on much of anything. On the biggest and the smallest of issues, what candidates and officials from the parties do and what they say increasingly diverge. But there is an exception: left and right, coastal or flyover, first-time candidate or long-time incumbent, almost all candidates for…
January 8, 2019
The lines between national politics and state or local politics, always blurred and squiggled, continue to evaporate. Just look at the recent “blue wave” midterm elections, in which a fierce backlash to Donald Trump carried hundreds of Democrats into state and local offices. In Texas, for example, the wave transformed courts across the state and…
November 20, 2018
The most salient national recounts of 2018 are now over. That does not mean it’s time to relax. Over the past two weeks, Florida has once again been recount central. And it has been impossible to escape the looming omnipresence of the ghosts of the 2000 election. Bush v. Gore, synecdoche for the problems with…
November 13, 2018
Now that Democrats have captured the House, a wide array of policy reforms are suddenly feasible. These reforms won’t become law, of course, since Republicans continue to control the Senate and the Presidency. But the House can still pass them—and thus lay down markers for a future Democratic Congress and show the American public the…
November 5, 2018
Campaign finance law is as much a product of the U.S. Supreme Court as of Congress. For more than four decades, the Court has actively superintended campaign finance regulation through its interpretation of the First Amendment. The ultimate consequence of the Court’s free speech decisions is to enhance the voice of the wealthy while stifling…
November 2, 2018
As the midterm elections approach, money is flowing into the coffers of candidates, parties, and outside groups at unprecedented rates. Meanwhile the Federal Election Commission (FEC) has, by many accounts, softened its enforcement of campaign finance laws. Clever political operatives and their lawyers stand ready to exploit the regulatory vacuum. This post focuses on one…
October 29, 2018
Pop quiz: which part of the federal government is tasked with preventing cyber interference in our elections? Congress has refused to say. We have reached a point of a significant gap between an important federal need and existing federal power. And in the absence of that federal power, federal agencies have stepped into the gap…
October 26, 2018
This November, voters in four states – Michigan, Missouri, Colorado, and Utah – will vote on ballot measures that would create independent commissions or other non-partisan processes to draw congressional or state legislative districts, as Josh Douglas and Rick Hasen have noted in previous posts in this series. At the same time, litigation challenging partisan…
October 22, 2018
These are perilous times even for those who think that federal courts have no business messing with how state legislatures draw lines for legislative and congressional districts and that the issue is best left up to each state’s political system. Now that Justice Anthony Kennedy has left the stage, it is unlikely that the Court…
October 17, 2018
“After the 2016 election,” a recent video about the New York Senate primary begins, “New York State acted fast to pass these measures to resist Trump’s agenda: universal, single-payer healthcare; fully funded public schools; strong environmental safeguards; and sanctuary state legislation to protect all immigrants. Just kidding! That didn’t happen.” But, narrator Edie Falco continues,…
October 16, 2018
On September 28th, California Governor Jerry Brown signed a new law that forbids the surreptitious use of bots to, among other things, influence Californians’ votes in an election. The law is a disclosure rule: the bot may speak, but it must clearly identify itself as nonhuman. Critics have suggested that California’s new law is vague…
October 15, 2018
The way our democracy operates is on the ballot this November. Voters do not just elect people to public office; they can also dictate the rules for elections through ballot initiatives in many states. From creating independent redistricting commissions to adopting campaign finance measures to expanding voter eligibility and changing the way we vote, voters…
October 12, 2018
In November, voters will be asked to decide 6000 state legislative elections, with 87 of the nation’s 99 state legislative houses holding their regularly scheduled elections. But, on the day after Election Day, all of these elections will be understood by the mass media as having asked essentially only one question: Did voters support Donald…
October 11, 2018
In November 2018, Florida’s Amendment 4 could restore the right to vote to people who faced disenfranchisement for the rest of their lives because of a felony criminal conviction. Controlling and limiting who can vote has a long American tradition. But the tradition of slowly but surely expanding the universe of who is eligible to…
July 31, 2018
The Roberts Court’s election law jurisprudence is a puzzle to scholars of the Court. The conservative Justices purport to approach their task modestly, invoking analogies to baseball umpires and the duty to call balls and strikes. But their work product is inconsistent with this purported aspiration. The Roberts Court seems to have particular views about…
July 24, 2018
The fate of our democracy may very well hang on the vote of Justice Kennedy’s replacement. If a newly constituted Supreme Court were to overrule (or limit to a vanishing point) Roe v. Wade, it would only matter if state legislatures restricted abortion rights. Undocumented men and women brought to this country as children and…
June 26, 2018
The United States Supreme Court’s unanimous decision in Gill v. Whitford did not settle the question of partisan gerrymandering, as many had anticipated that it would. The Court denied the plaintiffs’ standing in this case because the plaintiffs failed to show specific harms arising from the configuration of individual districts. Chief Justice Roberts, writing for…
April 11, 2018
Recently the Supreme Court heard oral argument in Benisek v. Lamone, the second partisan-gerrymandering case this term (Gill v. Whiftord was the first). Clearly the Court intends to act. But the Justices also seem to have run aground on some fairly central questions: settling on a legal theory and a manageable standard to define the…
March 22, 2018
After waiting, and waiting, and waiting, the United States Supreme Court finally answered the question whether it would heed Pennsylvania Republicans’ calls to put on hold the Pennsylvania Supreme Court’s order redrawing the state’s congressional district lines to cure a partisan gerrymander. The answer was no, with no explanation. And in that silence the Court…
February 13, 2018
This post is the first in a series about the redistricting cases moving through the courts. In the Spring of 2013, two prominent election lawyers, a Republican and a Democrat, visited my Election Law class. I asked them what were the great unsettled questions in the field, especially governing redistricting. They were united in their…
January 29, 2018
In August 2016, federal law enforcement and intelligence officials were alerted to an unsettling possibility: then-candidate Trump’s personal indiscretions might leave him susceptible to the threat of Russian blackmail. We now know that, as the election drew near, those close to Trump were also fretting about other kompromat — albeit of a more homegrown variety….
October 17, 2017
When our nation was founded, only a minority of the new country’s people enjoyed the right to vote. Guided by the belief that more Americans participating in our democracy would make our union stronger and more just, our foremothers and fathers fought to expand voting rights to the poor, to women, and to people of…
