Articles Posted in Election Law

Illinois Law dean Vikram David Amar, professor Jason Mazzone, and Yale College junior Ethan Yan comment on some of the issues created by Ben Sasse’s (R – Nebraska) expected departure from the U.S. Senate. Dean Amar, Professor Mazzone, and Mr. Yan describe the requirements and constraints of Nebraska state law and the U.S. Constitution.

Illinois Law dean Vikram David Amar rebuts an argument by Professor Will Baude and Michael McConnell regarding the so-called “Independent State Legislature” theory, which is being invoked by Republican elected legislators in North Carolina in a case currently before the U.S. Supreme Court. Dean Amar explains why the best understanding of the term “legislature” as used in Articles I and II of the U.S. Constitution to describe logistics of federal election logistics is “lawmaking system,” rather than a specific entity or body of persons.

In light of the Supreme Court’s decision to grant review of a North Carolina partisan gerrymandering dispute involving the Independent State Legislature (ISL) theory, Illinois Law dean Vikram David Amar offers yet another reason that the theory is critically flawed. Although Dean Amar has described in numerous publications why ISL theory is illogical and atextual, he newly observes that the Constitution uses another term—“Congress”—to refer at times to the legislative body and other times to the lawmaking process, inclusive of presidential involvement.

Illinois Law dean Vikram David Amar argues that the U.S. Supreme Court should put the so-called Independent State Legislature (ISL) theory to rest sooner rather than later. Specifically, Dean Amar suggests that Justice Stephen Breyer—who is set to retire but who joined Justices John Paul Stevens, Ruth Bader Ginsburg and David Souter in expressly rejecting ISL in 2000—should be among the voices to condemn the unsupportable theory.

In anticipation of the U.S. Supreme Court likely deciding soon to review a case presenting the question of the legitimacy of the “Independent State Legislature” (ISL), Illinois Law dean Vikram David Amar explains why the theory necessarily fails unless its proponents make up the meaning of Article II of the Constitution without regard to its words or historical context. Dean Amar argues that the notion of ISL does not work for Article I or Article II, but it certainly does not work for Article II under the textual approach employed by its proponents.

Illinois Law dean and professor Vikram David Amar comments on last week’s ruling by the highest state court in New York invalidating partisan gerrymandering. Professor Amar discusses partisan gerrymandering in this country and particularly criticizes the reasoning employed by those who are pushing the constitutionally bogus Independent-State-Legislature theory.

UF Levin College of Law professor and economist Neil H. Buchanan argues that Democrats should expressly reject (rather than implicitly accept) Republicans’ erroneous interpretation of the Twelfth Amendment, on the off chance it matters in the next coup attempt. Professor Buchanan explains why the Twelfth Amendment’s fallback provision applies only when the Electoral College vote is a tie.

In this first of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone identify and analyze some of the Seventeenth Amendment issues presented in a case pending before the Oklahoma Supreme Court. Dean Amar and Professor Mazzone consider whether a state can hold a special election while the Senate seat is still occupied, and whether the possibility of a substantial lag between a special election and actual replacement matters.

In this sixth of a series of columns, Illinois Law dean Vikram David Amar offers a few concluding thoughts on the invocation of the Independent State Legislature (ISL) theory in cases in North Carolina and Pennsylvania. Dean Amar looks both backward at last week’s decisions by the U.S. Supreme Court and forward to other settings in which ISL theory will be an issue.

In this fifth of a series of columns on the so-called Independent State Legislature (ISL) theory of Articles I and II of the federal Constitution, Illinois Law dean Vikram David Amar argues that the U.S. Supreme Court should grant review in a case that cleanly presents ISL theory and soundly reject it, once and for all. Dean Amar calls upon the majority of the Court that rejects ISL theory to explain its sound reasoning for rejecting it, noting that when one side lays out its case in public writings and the other (much stronger) side does not, the public is not well served.

In this fourth of a series of columns, Illinois Law dean Vikram David Amar continues his discussion of the so-called Independent State Legislature (ISL) theory regarding federal congressional and presidential selection processes. Dean Amar responds to arguments the North Carolina Applicants raise in their Reply filed with the U.S. Supreme Court last week.

In this third of a series of columns, Illinois Law dean Vikram David Amar explains why the proponents of the so-called Independent State Legislature (ISL) theory of Articles I and II of the U.S. Constitution inadequately address arguments and cases cutting against them. Dean Amar points out that a fundamental flaw of ISL theory is its failure to articulate any federal interest or norm, grounded in originalist understandings, structural expectations, or binding Supreme Court cases, concerning any specific state distribution of internal governmental powers.

In this second of a series of columns, Illinois Law dean and professor Vikram David Amar argues that the U.S. Supreme Court has already rejected the so-called Independent State Legislature (ISL) theory of Articles I and II of the U.S. Constitution. Dean Amar dissects the cases in which the theory arose and explains why the language of those cases, particularly taken together, repudiates the ISL theory.

In this first of a series of columns, Illinois Law dean and professor Vikram David Amar explains why we should be alarmed at a request by North Carolina Republicans for relief at the U.S. Supreme Court in a partisan gerrymander case. Dean Amar argues that the theory invoked in that case, known as the “Independent State Legislature” doctrine, is not just lawless but law-defying.

Amherst professor Austin Sarat observes that former President Donald Trump’s narcissism and obsessive, compulsive refusal to talk about anything other than the 2020 election is beginning to turn off even some of his longtime allies. Professor Sarat argues that while Trump’s waning popularity might be bad for him and his most ardent supporters, it might save the Republican Party and the United States from Trump himself.

Cornell Law professor Michael C. Dorf argues that Democrats may be justified in gerrymandering New York’s congressional districts even as they complain about gerrymandering by Republican-controlled state legislatures in Texas, Wisconsin, and elsewhere. Professor Dorf points out that it is sometimes but not always hypocritical to seek to change the law but continue to engage in behavior inconsistent with the change one seeks, and in the case of political gerrymandering, failure to do so amounts to unilateral disarmament.

Illinois Law dean Vikram David Amar argues that legislative reform is the best response if Californians want to change the gubernatorial recall election process. Dean Amar points out that legislators who wish to act should do so before—rather than after—the results of the upcoming election come in, so as to deflect any concerns that they might be motivated by partisanship, even though the reform possibilities may not be facially partisan.

Illinois Law dean Vikram David Amar and Michigan Law dean emeritus Evan Caminker continue their conversation with Berkeley Law professor Aaron Edlin and dean Erwin Chemerinsky about the constitutionality of California’s recall mechanism. Deans Amar and Caminker respond to critiques of their arguments and explain why they have grown even stronger in their belief that that equal protection challenges to the recall mechanism are misguided.

In this third of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone discuss a recent federal lawsuit b Republican minority leaders in both houses of the Illinois General Assembly, specifically focusing on recent developments in the litigation. Dean Amar and Professor Mazzone explain why they do not expect the Illinois Supreme Court to support doing anything but letting the revised district lines (if they be revised as they expect) go into effect.

Berkeley Law professor Aaron Edlin and dean Erwin Chemerinsky respond to arguments by Illinois Law dean Vikram David Amar and Michigan Law dean emeritus Evan Caminker regarding the constitutionality of California’s recall process for governor. Professor Edlin and Dean Chemerinsky first rebut the argument that California Supreme Court precedent determines the outcome in this case and then argue on the merits that California’s recall process attempts to do in two steps what is clearly unconstitutional to do in one; because the ballot is an election for who will be governor, the candidate with the most votes should be the one chosen.