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.
UC Davis Law professor Vikram David Amar comments on the Wisconsin Supreme Court’s recent decision invalidating the state’s legislative district lines based on its finding that they were unconstitutional due to non-contiguous territories, a decision criticized by conservatives as partisan. Professor Amar points out that this ruling, focused only on state legislative districts, does not directly implicate the “Independent State Legislature” theory discussed in the U.S. Supreme Court’s Moore v. Harper case, as it pertains to state, not federal, elections. Furthermore, Professor Amar argues that the decision’s compliance with straightforward state constitutional text suggests federal courts are unlikely to find it violates due process or republican government principles, illustrating the limited role of federal oversight in state court interpretations of state law post-Moore.
In this second of a series of columns, UC Davis Law professor Vikram David Amar responds to arguments against disqualifying Donald Trump from presidential election ballots under Section 3 of the Fourteenth Amendment, focusing on Ross Douthat’s assertion in a New York Times essay that such disqualification is antidemocratic. Professor Amar argues that enforcing constitutional provisions, including Section 3, is not antidemocratic as it reflects the will of the people, and he emphasizes that the real question is whether the requirements of Section 3 have been met in Trump’s case.
UC Davis Law professor Vikram David Amar points out flaws in Professor Larry Lessig’s argument in Slate regarding the inapplicability of Section 3 of the 14th Amendment to Donald Trump, emphasizing that the presidency is indeed an “office under the United States” and therefore covered by Section 3. Professor Amar highlights Professor Lessig’s failure to address this key point and questions why Professor Lessig’s essay overlooks the fact that federal legislators are not considered officers under the United States, a crucial distinction in constitutional law.
Cornell Law professor Michael C. Dorf points out that the U.S. Supreme Court faces critical decisions in two cases involving former President Donald Trump: one regarding his claim of absolute immunity against charges for his role in attempting to overturn the 2020 election, and the other concerning his eligibility for the Presidency under Section 3 of the Fourteenth Amendment. Professor Dorf argues that despite Trump’s legal team arguing for more time due to the complexity of the immunity case, the Court should expedite its review in both cases, given the urgency of presidential primaries and the weak nature of Trump’s claims, especially against the well-founded argument that he is ineligible under the Fourteenth Amendment due to insurrectionist activities.
UC Davis law professor Vikram David Amar argues that a recent decision by the U.S. Court of Appeals for the Eighth Circuit, holding that Section 2 of the Voting Rights Act does not confer a private right to sue, may not be as catastrophic as some fear, given that there are potential workarounds for victims of Voting Rights Act violations. Professor Amar suggests that plaintiffs could use alternatives like 42 U.S.C. § 1983 or Ex Parte Young to address violations, as these routes do not require an explicit or implied private right of action under the statute being violated.
Former federal prosecutor Dennis Aftergut argues that mainstream media’s failure to cover certain substantive news stories, such as local election results and their implications, can lead to a lack of awareness about issues that significantly affect the future of democracy. Mr. Aftergut encourages citizens to influence media coverage by voicing their desire for real news through letters to editors and social media, thereby contributing to a more informed public discourse.
UC Davis Law professor Vikram David Amar and Yale College senior Ethan Yan discuss the complexities and legal questions around a potential U.S. Senate vacancy in New Jersey, focusing on the current political situation surrounding Senator Bob Menendez. Professor Amar and Mr. Yan conclude that while New Jersey law allows Governor Phil Murphy considerable discretion in filling a Senate vacancy, including the possibility of appointing his wife Tammy, such a move would likely be politically damaging, even if constitutionally permissible.
UC Davis Law professor Vikram David Amar discusses the ongoing legal battle over congressional redistricting in New Mexico, where Republicans have filed a lawsuit claiming that new district maps favor Democrats and violate the state constitution. Professor Amar emphasizes the importance for the New Mexico state courts to clearly base their rulings on the state constitution rather than the federal Constitution, and to justify their decisions more explicitly so as to demonstrate greater legitimacy.
Amherst professor Austin Sarat argues that American democracy is at a critical juncture, facing existential threats in the lead-up to the 2024 presidential election. Professor Sarat contends that Donald Trump and his supporters are sowing distrust in the electoral system by labeling legal actions against Trump as “election interference,” a strategy that is dividing public opinion and undermining faith in democratic institutions, potentially leading to dire consequences for the future of American democracy regardless of the 2024 election outcome.
In light of recent questions regarding the health of U.S. Senate minority leader Mitch McConnell (R-KY), UC Davis law professor Vikram David Amar examines Kentucky’s 2021 statute on filling Senate vacancies, which restricts the governor’s appointment power by requiring a choice from a list provided by the departing senator’s political party. Professor Amar expresses doubt about the law’s constitutionality in light of the Seventeenth Amendment and the historical intent to reduce political party influence in Senate appointments.
Illinois Law dean Vikram David Amar comments on the U.S. Supreme Court’s decision in Moore v. Harper, in which the Court forcefully repudiated the essence of the so-called “Independent State Legislature” (ISL) theory. Dean Amar describes the apparent evolution of several Justices’ views on ISL theory and explains how that evolution led to the Court’s sound rejection of the theory.
Cornell Law professor Michael C. Dorf comments on the Supreme Court’s decision in Allen v. Milligan, in which Chief Justice John Roberts, writing for a 5-4 majority of the Court, reaffirming a key precedent that allows Voting Rights Act (VRA) plaintiffs to sue to block legislative redistricting maps that have the effect of diluting minority voting strength. Professor Dorf expresses optimism that this decision might signal that the Chief Justice and Justice Brett Kavanaugh, the only Republican-appointed Justice who joined the majority, are not moving ideologically to the right as radically as their other colleagues on the Court.
Illinois Law Dean Vikram David Amar comments on the latest developments in Moore v. Harper, the pending Supreme Court case involving the “Independent State Legislature” (ISL) theory of Articles I and II of the Constitution. Dean Amar explains how we might interpret the Moore parties’ offer (and the Justices’ acceptance) of supplemental briefing on the effect of the ruling by the North Carolina Supreme Court last week and explores the significance of newly reported information about Justice Sandra Day O’Connor’s apparent abandonment of ISL theory during the deliberations in the 2000 Bush v. Gore case.
Illinois Law Dean Vikram David Amar and Professor Jason Mazzone argue that, in light of the North Carolina Supreme Court’s “switcheroo” regarding partisan gerrymandering, the U.S. Supreme Court should immediately grant certiorari in Huffman v. Neiman to resolve the question of “Independent State Legislature (ISL) theory. Dean Amar and Professor Mazzone point out that the intense litigation pressure of today’s presidential elections and the shaky stature of the present Supreme Court together strongly support the Court acting quickly to resolve this pressing issue.
Cornell Law professor Michael C. Dorf explains why, if Donald Trump wins the 2024 Presidential Election, there is a genuine possibility that he would serve some or all of a presidential term while in prison. Professor Dorf points out that while the best reading of the Constitution would render Trump ineligible to serve as President while in prison, the only actors authorized to declare him ineligible would be extremely unlikely to do so.
Illinois Law dean Vikram David Amar analyzes last week’s oral argument in the Moore v. Harper case before the U.S. Supreme Court, which raises the “Independent State Legislature” (ISL) theory. Dean Amar makes seven key observations, including that a majority of the Court seems poised to reject ISL’s basic textual premise but also a middle group of Justices seem inclined to retain U.S. Supreme Court oversight over state courts on issues of federal elections.
Illinois Law dean Vikram David Amar continues his discussion of why the “Independent State Legislature” theory is incorrect and counter to the original understanding of the Constitution. Dean Amar points to four key errors the Petitioners in Moore v. Harper make in their filings with the Supreme Court and argues that some of their omissions demonstrate just how non-originalist their theory really is.