Articles Posted in Election Law

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone analyze a recent Pennsylvania Supreme Court decision ordering counties not to count undated/misdated mail-in ballots for the November 2024 election, specifically examining the broader implications of courts claiming exclusive authority to interpret constitutionality. Professors Amar and Mazzone argue that the court’s position that only judges can determine constitutional matters is problematic, as executive officials throughout American history have demonstrated the capacity to make sound constitutional judgments, and a decentralized system of constitutional review by multiple government actors can better protect individual rights.

Last week the U.S. Court of Appeals for the Fifth Circuit issued a ruling in Republican National Committee (RNC) v. Wetzel holding invalid, as conflicting with and thus preempted by federal law governing federal elections, a Mississippi statute that permits the counting of ballots that arrive at election offices by mail after Election Day—up…

UC Davis Law professor Vikram David Amar analyzes a recent Pennsylvania Supreme Court ruling that allows voters whose mail-in ballots were rejected due to technical errors to cast provisional ballots in person, and examines the Republican National Committee's subsequent appeal to the U.S. Supreme Court to block this ruling. Professor Amar argues that the RNC’s appeal lacks merit because it misapplies both the Purcell doctrine (which constrains federal, not state, courts from making last-minute election changes) and the Supreme Court’s Moore v. Harper decision, which actually supports states’ authority to interpret their own election laws through various governmental processes, including state courts.

University of Toronto visiting law professor and economist Neil H. Buchanan discusses a constitutional interpretation regarding the requirements for winning the U.S. presidency through the Electoral College, specifically addressing scenarios where some state electors are not appointed. Following up on an argument he has made with Professors Michael Dorf and Laurence Tribe, Professor Buchanan argues that, contrary to popular belief (the “House-decides error”), under the Twelfth Amendment, a candidate does not need 270 electoral votes to win the presidency but only a majority of actually appointed electors. Professor Buchanan points out this means that successfully blocking some state electors, as Donald Trump likely will try to do, would not automatically force the decision to the House of Representatives unless there is an actual tie or a third-party candidate prevents either major candidate from achieving a majority of appointed electors.

Cornell Law professor Michael C. Dorf discusses the current Supreme Court term and its potential implications for the 2024 presidential election. Professor Dorf argues that while the current docket seems relatively quiet, the Court’s history of partisan decisions favoring Republicans, combined with the possibility of election-related cases being added later, raises concerns about how the Court might handle potential challenges to the 2024 election results, particularly if Trump loses and uses his loyalists in state legislatures or other organs of government to declare him the winner anyway.

UC Davis Law professor Vikram David Amar discusses the legal arguments surrounding Robert F. Kennedy Jr.’s attempt to remain on some state ballots for the 2024 presidential election, particularly focusing on the applicability to presidential elections of the Supreme Court’s U.S. Term Limits, Inc. v. Thornton ruling. Professor Amar argues that invoking the Term Limits case in the context of presidential elections is logically flawed and historically inaccurate, as Article II of the Constitution grants states broad powers in selecting presidential electors, unlike the more restricted state powers in congressional elections addressed in Term Limits.

UC Davis Law professor Vikram David Amar and researcher Ethan Yan discuss age-based discrimination in absentee voting laws across eight U.S. states, examining their compatibility with the Twenty-Sixth Amendment to the Constitution. Professor Amar and Mr. Yan argue that these laws, which favor older voters, violate the Amendment's clear prohibition of age discrimination in voting rights and should be challenged in court, criticizing recent circuit court decisions that have failed to properly interpret the Amendment's equality mandate.

Amherst professor Austin Sarat discusses a legal controversy in Nebraska regarding felony disenfranchisement, specifically focusing on a recent law allowing felons to vote immediately after completing their sentences and the state attorney general’s challenge to this law. Professor Sarat argues that the Nebraska Supreme Court should reject the attorney general’s contentions, allow the new law to stand, and permit former felons to vote, asserting that felony disenfranchisement is a vestige of a shameful historical era that should be consigned to the past.

University of Toronto visiting law professor and economist Neil H. Buchanan critiques J.D. Vance’s performance as a vice-presidential candidate and his controversial statements about parenthood, family, and voting rights. Professor Buchanan argues that Vance’s views on parenthood and societal investment are deeply flawed, emphasizing that all individuals, regardless of parental status, have a stake in society’s future and that Vance's narrow understanding of human interdependence renders him unfit for leadership.

UC Davis Law professor Vikram David Amar and researcher Ethan Yan discuss North Dakota’s recently passed Initiated Measure 1, which prohibits anyone over the age of 81 from serving in or being on the ballot for the U.S. House or Senate. Professor Amar and Mr. Yan argue that Measure 1 violates the Twenty-Sixth Amendment’s prohibition on age discrimination in voting rights, which they contend includes the right to be voted for and hold office, making the measure unconstitutional even if the Supreme Court were to overturn its precedent barring states from adding congressional qualifications beyond those in the Constitution.

UC Davis Law professor Vikram David Amar discusses a recent Illinois state court ruling in Colazzo v. Illinois State Board of Elections, which dealt with the complex issue of ballot access and the application of a new state law that would have prevented certain Republican candidates from appearing on the November 2024 general election ballot. Professor Amar argues that while the court reached the correct result in this case, the reasoning behind the decision raises interesting questions about the independence of state law grounds, the constraints on altering election rules close to an election, and the need to balance fairness and notice concerns with the importance of each election in maintaining democratic integrity.

UC Davis Law professor Vikram David Amar discusses how California’s Rule of Court 2.1008, which allows individuals aged 70 and older to be excused from jury service due to disability without requiring documentation, may violate the Twenty-Sixth Amendment’s prohibition on age discrimination in voting rights. Professor Amar argues that since jury service is a form of political participation akin to voting, singling out those 70 and older in a way that reduces their jury participation based on assumptions about age and disability is constitutionally problematic, just as it would be to excuse women from juries based on assumptions about their domestic responsibilities.

James F. McHugh, a retired Massachusetts Appeals Court Justice, comments on the American Law Institute (ALI)’s recently released Statement entitled “Ethical Standards for Election Administration,” which seeks to help election administrators understand and agree on basic ethical principles for implementing election laws, in light of the contentious 2020 Presidential Election and concerns about the upcoming November 2024 election. Justice McHugh points out that ALI’s report provides a set of common principles and a shared national vocabulary for ethical election administration, emphasizing adherence to the law, protection of election integrity, transparency, impartiality, personal integrity, ethics, and professional excellence, with the goal of increasing public confidence in the impartial administration of elections.

UC Davis Law professor Vikram David Amar discusses how the decentralized nature of the U.S. presidential election system allows individual states to have varying rules that can significantly impact the overall outcome, as illustrated by recent examples from Ohio, Nebraska, and the Supreme Court case Texas v. Pennsylvania. Professor Amar argues that the Supreme Court’s decision in Trump v. Anderson, which emphasized the need for uniformity in presidential candidate ballot access across states, was not adequately defended by the Justices, as it failed to address why the Constitution permits such consequential disuniformity in election administration among states.

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone coment on the U.S. Supreme Court’s recent ruling in Trump v. Anderson holding that states cannot enforce Section 3 of the Fourteenth Amendment to bar former President Donald Trump from primary election ballots due to his alleged role in the January 6 Capitol breach. Professors Amar and Mazzone argue that the Court’s reasoning, primarily based on concerns about nationwide ballot uniformity in presidential elections, is flawed because it fails to properly consider the Constitution’s overall design, which grants states significant autonomy in running presidential elections and selecting electors.

Amherst professor Austin Sarat discusses Donald Trump’s long history of making false claims about election fraud and his current warnings about the 2024 presidential election being rigged. Professor Sarat argues that Trump’s baseless allegations are damaging democracy, sowing distrust in the electoral process, and setting the stage for potential unrest if he loses in November.

Amherst professor Austin Sarat discusses the U.S. Supreme Court’s decision in Trump v. Anderson, where the Court ruled that Donald Trump could not be disqualified from appearing on the ballot under Section 3 of the 14th Amendment, emphasizing the decision’s implications for the Court’s prestige and internal consensus. Professor Sarat argues that the decision, while appearing unanimous, reveals deep divisions within the Court and suggests a failure by Chief Justice John Roberts to foster genuine unanimity or to protect the Court’s reputation, further criticizing the decision’s approach and its broader implications for the Court’s impartiality.

Cornell Law professor Michael C. Dorf comments on last week’s Supreme Court oral arguments in Trump v. Anderson, in which the Justices seemed inclined to overturn the Colorado Supreme Court’s decision that disqualified Donald Trump from the state’s Republican primary under the Fourteenth Amendment for “engaging in insurrection.” Professor Dorf points out that the Justices’ questioning revealed a spectrum of potential rationales, from concerns over political retribution and the historical interpretation of Section 3 of the Fourteenth Amendment to structural arguments about federal versus state authority in determining a candidate’s eligibility for the presidency.

UC Davis Law professor Vikram David Amar expresses concern over the quality of the Supreme Court’s oral argument in Trump v. Anderson, suggesting that the Justices’ questions failed to adequately address the complexities of the case and the constitutional principles at stake, particularly regarding the electoral college and interstate federalism. Professor Amar critiques the Court’s understanding of the electoral college system, arguing that the Justices’ apprehensions about the potential consequences of their decision overlook the inherent flexibility states have in appointing electors—a flexibility underscored by originalist constitutional interpretations and past precedents.

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone comment on a federal lawsuit filed by the Republican National Committee and the Republican Party of Mississippi, among others, challenging Mississippi’s law that counts mail-in ballots postmarked by Election Day but received within five business days thereafter for federal elections. Professors Amar and Mazzone argue that this lawsuit is unlikely to succeed due to the implausibility of its legal theory, highlighting the distinction between the act of voting and the counting of votes, and underscoring the constitutional and statutory framework that grants states broad leeway in election administration, including the acceptance of mail-in ballots.