Quick thoughts from oral argument in today's Alabama redistricting case

Today, the Supreme Court heard oral argument in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama. (The SCOTUSBlog page is here.)

There are many moving parts in this litigation. (Rick Hasen has a nice summary here.) Redistricting involves a number of decisions that legislators must make, and they are constrained by a variety of provisions of the Constitution, federal law, and state law. Very, very briefly: there must be an equal--or, at least, roughly equal--number of individuals residing in each district. The districts cannot be drawn with the primary intent to draw them among racial lines. They must, however, consider the impact that drawing the lines will have on racial groups if there is polarized voting. The drawing of lines could not, when Section 5 was in effect, be retrogressive on minority groups. And while partisanship is a permissible basis for redistricting, there may be circumstances in which a judiciary would find invalid redistricting for being excessively partisan.

Some of these are slightly vague standards; other are in tension with each other. It's not like these are new--this blog is dedicated, in part, to Elbridge Gerry, and "Gerry's salamander" (i.e., gerrymander) is the graphic at the top of the page.

I had the privilege of attending my first Supreme Court oral argument this morning. Here's what I observed. (Quotations are not direct; they are based on my scrawled notes!)

Bottom line: there seemed to be more sympathy for Alabama's position over that of the petitioners, but the Court was quite scattered at oral argument, and the opinion could be quite narrow.

Chief Justice Roberts opened asking petitioners about the "sweet spot," whether a state could really be expected to navigate having too many minorities in a legislative district and having too few. Justice Scalia chimed in to assert that the "only way to be sure" that Alabama was complying with Section 5 of the Voting Rights Act was to ensure that each legislative district had the same number of minorities under the old and new systems.

Justice Kennedy then tried to wrap his mind around redistricting for partisan gerrymandering reasons, but using race as a proxy for party. He found it hard to conclude that one party could do it, but the other could not because the effect would be a racial gerrymandering claim--a "one-way ratchet" concern. (Justice Breyer would later challenge this conclusion and assert it was actually a two-way ratchet."

In one (gotcha?) moment, Justice Alito asked, "You're just as interested in quotas as Alabama, only lower quotas." To which counsel replied, "I meant to use 'targets'" instead of "quotas."

Justice Ginsburg then wondered about the nature of this claim as a statewide claim instead of a district-by-district claim. This issue was picked up by Justice Alito in further questioning of petitioners' counsel, wondering whether the complaint adequately alleged it or whether the district court misunderstood the claim. Instead, petitioners pressed back, the effect is the same--challenging all 36 districts or challenging each of the 36 districts.

Chief Justice Roberts returning to this concern of the state navigating too few minorities in a district and too many--"If Alabama had reduced the numbers in any significant way, the Attorney General would come in like a ton of bricks."

Justice Sotomayor expressed a more basic problem--the injury. She was worried that the Shaw injury alleged by petitioners was an "ephemeral injury"--"Explain to me why you don't have to be harmed by a specific application of this policy." She would later confess that she was "still having a psychological problem" about whether petitioners had been injured at all. (She never asked a question to Alabama's counsel during argument.)

Justice Breyer expressed pragmatic concerns about remanding the case--would it be incumbent on the petitioners to point to specific districts where the motivation was rational? And then it would be left to Alabama to articulate a reasonable attempt--or a good-faith reasonable attempt--to comply with Section 5?

Solicitor General Verrilli then went on to make the claim that Shaw demanded district-by-district examination. Justice Kagan pushed back--the policy in place was to avoid retrogression, defined in a particular way, and that definition was applied to every single district. Instead, General Verilli countered, the only way the criteria would rise to a Shaw claim is if the district were drawn in derogation of a traditional policy, and that that had not been shown in every district. The policy itself, he said, was not enough.

Justice Alito returned to the question about whether the district court properly understood the claims, to which General Verrilli conceded the issue was "murky." And Chief Justice Roberts pressed the concern that, if remanded and redistricting occurred, Section 5 would no longer control and the Department of Justice would not have a part in the process.

When Alabama's counsel took to the lectern, counsel claimed that the goal was to "preserve the status quo." Chief Justice Roberts answered that the problem is that perhaps the status quo is not the right standard.

Justice Kagan came out with a full-throated defense of petitioners' claims. "You were determined, come what may," to keep the same percentage of minorities in each district? That it was "just a coincidence" that the same number of minorities were in each district?

She noted that this is perhaps a sui generis Shaw claim. Usually, she explained, Shaw claims are circumstantial. But here, we have a policy statement, from the state, that nonretrogression is the second-most important goal (behind Reynolds), and then a clear statement that nonretrogression demanded the same percentage of minority voters in each district. Alabama responded that it was a plausible way of interpreting Justice Souter's opinion in Georgia v. Ashcroft and a basis for Congress's amendments to the Voting Rights Act in 2006.

Justice Kennedy was concerned that the state did not say it was gerrymandering--it said it was trying to comply with Section 5. (In his eyes, the partisan reasons, I think, should have been more obvious.)

Justice Breyer questioned the practicalities of remanding the case--how would Alabama justify its system after Section 5 is out the window?

Finally, Justice Kagan even pressed the state's interest in complying with one person, one vote with a 2% deviation standard in population--she noted that as the Court has upheld deviations of up to 10%, perhaps 2% is not really a state interest.

During rebuttal, Justice Sotomayor again pressed the evidentiary point, asking whether the injury had been adequately established below.

My gut reaction, then, might not comport at all with reality--this case went in so many directions, it's hard to identify how the Court might proceed.

Sample ballot with racial designations from Louisiana, 1961

In Anderson v. Martin (1964), the Supreme Court concluded that Louisiana's practice of listing the race of each candidate on the ballot was unconstitutional. The opinion is here.

Here's a sample ballot from a Louisiana election from that era, printed in the Lake Charles American-Press, April 7, 1961. Enlarge the image to see "Caucasian" or "Negro" listed beside each candidate.

View fullsize

Virgin Islands Supreme Court ignores federal court on election dispute

I blogged earlier about the extraordinary dispute in the United States Virgin Islands, in which the Virgin Islands Supreme Court ordered a sitting senator off the ballot because it concluded she had committed a crime involving moral turpitude that rendered her disqualified for office. In response, the governor pardoned her, and an ensuing case in federal court resulted in an order to get her back on the ballot.

I thought that would end the matter.

It didn't.

The case has become even more surreal.

In a recent decision (PDF or decisions page), the Virgin Islands Supreme Court has decided to ignore the federal court order, concluding the federal court lacked jurisdiction to hear the case; and, further, has ordered Senator Alicia "Chucky" Hansen's name off the ballot, even though ballots have been printed, absentee ballots have been sent out, and early voting is underway.

The opinion is meandering, to say the least. It includes citations to the Rooker-Feldman doctrine, the Supremacy Clause's purported distinction between Article III and Article IV courts, exercises of supplemental jurisdiction, and in personam and in rem proceedings.

There's too much to unpack here, but I'll note three brief points.

First, it notes that Senator Hansen has the ability to petition as a write-in candidate. In U.S. Term Limits v. Thornton, the Supreme Court concluded that a bar on a candidate's name appearing on the ballot was overly burdensome when the only alternative was a write-in candidacy. That, the Court found, was effectively a bar and could not cure the congressional term limits rule that left a candidate's name on the ballot. Here, too, I think the court misses the mark by arguing that a write-in candidacy is a viable alternative.

Second, it rejects not just Purcell v. Gonzalez, but also the four Supreme Court decisions handed down in the last few weeks involving litigation in North Carolina, Ohio, Texas, and Wisconsin. In each, the Court restored the "status quo" prior to an upcoming election--in three cases, allowing a contested law to remain in effect, and in one case, continuing an injunction against a law that had been challenged. Here, the court attempts to distinguish theses on a lack of a record suggesting that there's a problem in altering the ballots--this, despite the fact that early voting is actually underway in the Virgin Islands.

Third, this is the first opportunity for a case to be appealed directly to the United States Supreme Court since a recently jurisdictional law took effect; previously, cases would be appealed from the Virgin Islands Supreme Court to the Third Circuit.

We'll see if anything comes from this case. But it might serve as a fifth instance of the Supreme Court stepping in this election season and addressing the preservation of the status quo.

Sixth Circuit finds Ohio has held illegal elections for over 200 years

In a stunning opinion, the Sixth Circuit just concluded in Ohio State Conference of the National Association for the Advancement of Colored People v. Husted (PDF) that the State has held illegal elections from 1803 until 2005 that unconstitutionally burdened the right of Ohioans to vote.

So let's set aside the snark for a moment. What did the court say?

In 2005, the Republican-controlled Ohio legislature enacted a series of election changes in House Bill 234. It developed no-fault early voting and allowed for early in-person voting at least 35 days before the election. Because voters must register at least 30 days before an election, there was a five-day period in which a voter could register to vote and vote on the same day.

In 2014, the Republican-controlled Ohio legislature enacted additional changes via Senate Bill 238, including moving the first day of early voting to the day after the close of voter registration--essentially, 28 days of early-voting. (Additionally, the governor had instituted standardized early in-person voting hours across counties, the focus of additional litigation.)

So prior to 2005, Ohio had zero days of early in-person voting; until 2014, it was 35 days; and the legislature amended that to 28 days.

That, the Sixth Circuit says, is unconstitutional.

It concludes that this cutback "significantly burdened" African American, lower-income, and homeless voters, so the law was subject to heightened scrutiny.

On what basis? The court notes that African Americans, lower-income individuals, and the homeless are distrustful of voting by mail; the complexities of voting by mail complicate efforts from these affected groups; and that lower-income voters' reliance on public transportation and wage-based jobs would create difficulties in voting in the 28-day period instead of the 35-day period.

So, it logically follows, that must mean that Ohio's decision to have zero early voting days from 1803 until 2005 was also unconstitutional. Those reasons, after all, certainly have applied for centuries to the same groups (with perhaps concessions to the nature of "public transportation" in the early nineteenth century).

Strictly speaking, I suppose, the Equal Protection Clause wasn't enacted until 1868, and the Supreme Court's opinion in William v. Rhodes subjecting election laws to some kind of Equal Protection analysis didn't come down until 1968.

But the court also notes that these groups "disproportionately have used in past elections the EIP voting times that . . . SB 238 eliminated, and that the number of individuals who have previously voted during these periods was not insignificant."

The court's opinion is cagey as to the fact that Group X used Procedure Y frequently. If we eliminate Procedure Y, what happens to the votes of Group X? Presumably, some of that group would find other opportunities to vote. But the court explains why the existing alternatives are insufficient for the reasons articulated (as would have been the case from 1803 to 2005).

And what if Group Y actually uses those other opportunities? It then explains, "the district court properly held that whether voters might adjust to vote during a different time in EIP voting such that overall turnout might not be affected 'is not determinative of the Equal Protection analysis.'" (Slip op. at 19.) Which is a pretty broad claim--one the court uses citing a few scraps from footnotes, concurrences, and dissents to justify. And, in fact, these scraps stand for a very different proposition--one need not "absolute certainty in predicting how many voters would be prevented from voting by laws that impose burdens on the right to vote," but that's quite a different claim than saying that one need not show any effect on voter turnout.

To say it's not determinative is one thing. But if it turns out that voter turnout is unaffected--or is, at best, highly speculative--what, precisely, is the burden? That would suggest, I think, that the burden is slight. That is, if the regulation has no discernible effect on turnout, it's very hard to say that the burden is "significant." The kinds of burdens that rise to the level of "severe" are the kinds that essentially prohibit ballot access, starting with Williams v. Rhodes and moving onward. This is a how hot was it problem--except the court expressly finds that how hot doesn't matter, which is a very different claim from saying that the precision of determining the heat does not matter.

And this portion of the opinion concludes with one of the most grotesque misreadings of Bush v. Gore I've seen. In footnote 4, it explains, "Moreover, while Bush v. Gore did involve disparate treatment, rather than burdens on the fundamental right to vote, we nonetheless find its motivating principle instructive in the present case given that the Equal Protection Clause can be triggered by either disparate treatment or burdens. That is, '[h]aving once granted the right to vote on equal terms"--such as expanding early voting opportunities--'the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another'--for example, by making it substantially harder for certain groups to vote than others. Bush v. Gore, 531 U.S. at 104-05."

If Bush v. Gore stands for any broader proposition beyond the Florida election in 2000, it is not for this.

The per curiam opinion expressed concern that county election boards, and the Florida judiciary, were arbitrarily changing the "value" of a "one person's vote" by instituting different recount procedures. So set aside the fact that it's dealing with a "vote"--that is, a ballot cast, and not with pre-election day opportunities. Even a broad interpretation of Bush v. Gore might apply it to those situations.

Instead, the fundamental problem in Bush v. Gore is the "later . . . treatment" in the context of that very election. Voters went to the polls in Florida in 2000 with Procedure A in place; after the election, Procedure B was instituted. That, to the per curiam majority, was the fundamental problem (whether one agrees or not).

For the Sixth Circuit to extend this principle to all changes ever made to any election system is a sweepingly broad interpretation of Bush v. Gore, one that I don't think can find any real support in the text of the opinion.

But really, this opinion stands for the broader proposition that once a State enacts a voting law, it is almost impossible to amend it in a way that places any change in burden on the people who took advantage of the process in that law.

It might be that SB 238 is a great law, or a terrible law. It might be that this law empowers a lot of voters who'd have no opportunity to vote, or it has no effect on turnout. I don't know. And that's my problem--I can't tell from this record. From the demands of the Court's Equal Protection Clause jurisprudence, I'd probably let the law stand. And the court tortures the law because of the utter lack of meaningful facts that support some kind of finding of burden.

The opinion goes on to some interesting Voting Rights Act Section 2 challenges (an entirely different and, I think, even more complicated analysis) and evaluates the executive order, but I wanted to focus on this narrow slice of the opinion--the slice that cannot possibly mean what it says to anyone in legal practice. As Rick Hasen notes, "If 28 days is unconstitutional and a voting rights violation, what does this say about places like New York, which offer no early voting?"

Or, as I wonder, what about the first 200 years of Ohio's history?

Convicted felon and California Senator Rod Wright has probably forfeited his seat

UPDATE II: Commenter reality czech notes, "Gov Code 9055 provides that a Legislator forfeits office upon conviction of a crime "defined in THIS ARTICLE." Rod Wright wasn't convicted of any crime specified in that article of the code, so I'm not sure why GC 9055 would be relevant." Um, excellent point. "This article," that is Article 3, "Article 3 – Crimes Against the Legislative Power," is very narrow in its scope. So automatic forfeiture would only apply to the commission of these limited crimes. If that's the case, then the legislature is within its right to expel Mr. Wright if it chose to do so--but the seat was not automatically vacated. Thanks for the important correction.

UPDATE: Crisis averted. Senator Wright has resigned.

California state Senator Rod Wright was recently found guilty of eight felonies, including voting fraud. The state Senate had suspended him (and continued to pay his salary), but his seat has not been vacated: he has not been expelled by the Senate.

That prompted some thoughts from Rick Hasen about the possibility that under California law Mr. Wright automatically vacated his office upon conviction. I expressed some skepticism.

But after further research, I think Rick has it right--albeit for slightly different reasons.

Here's what California Government Code 9055 says:

Every member of the Legislature convicted of any crime defined in this article, in addition to the punishment prescribed, forfeits his office and is forever disqualified from holding any office in the State.

That's slightly different from the provision that Rick cited in his post, which refers to public and executive officers--and that's the basis of interpretation in this 1977 California appellate decision.

The text suggests that forfeiture is automatic. Indeed, the court's interpretation of the analogous civil officer statute finds that forfeiture is automatic upon conviction.

This is, I think, a fairly unusual statute. It is highly unusual for a legislature to cede the power to remove its members to another authority, or to make it occur automatically by statute. The power to expel its own members is a valuable function of the legislature. But § 9055 appears to do just that--automatically result in a vacant seat upon conviction.

On what basis might the legislature do so? Initially, one may consider the California Constitution's section on "Public Officers and Employees," which states,

(a) Every person shall be disqualified from holding any office of profit in this State who shall have been convicted of having given or offered a bribe to procure personal election or appointment.

(b) Laws shall be made to exclude persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes from office . . . .

(Query: this provision arises in Article VII, which is not Article IV, "Legislative," and it might well be the case that the "office of profit" or "office" described in this section do not extend to legislative offices--but that might be a question for another time.)

And the legislature went ahead and enacted § 9055, which appears to apply automatically upon conviction.

That would also comport with how the legislature treats expulsion of its own members. In 1905, the California Supreme Court affirmed that the legislature "has the implied power to expel a member for any cause which it may deem sufficient." French v. Senate of State of California, 146 Cal. 604 (1905). I suppose the legislature could also exclude a basis for expulsion as a statutory matter, even absent the constitutional authority cited above.

Further, the Senate Rules (PDF) include the responsibilities of the "Committee on Legislative Ethics," which sets forth a standard of conduct for members of the Senate. That committee handles complaints and addresses potential discipline for members, including expulsion. But the only thing related to a felony in those rules is a guideline that the committee may release records to the public if there is probable cause that a felony occurred. So, in a sense, it would make sense for there to be an automatic consequence for the conviction of an actual felony, one that didn't require the further step of expulsion.

I don't think it's true, as the California Senate leader suggested in an interview, that it would be "improper" to expel a member of the Senate charged but not convicted of a crime--that's certainly neither the inherent power of the legislature nor the standards set forth in the Senate's own rules. Nor, as "Senate officials" suggest, "only elected lawmakers can boot a fellow legislator from office." That's usually true, to a point--the legislature here, however, apparently ceded that decision, and it now takes place automatically, by statute, upon conviction of a felony.

Either the legislature should repeal the statute, enacted in 1943, that includes automatic forfeiture of a seat upon conviction of a felony, or it should embrace the law that it enacted so many years ago.

This voter's ballot cost $15,625 in Arizona

After Arizona v. Inter Tribal Council, there was Kobach v. Election Assistance Commission, which continues to languish in the courts. The EAC didn't approve Arizona's proof-of-citizenship requirement. And Arizona responded that it would no longer use the federal form for its state elections and opted to create two parallel ballots--one with federal and state offices for those who had provided proof of citizenship, and one with federal-only offices to comply with the NVRA's EAC-promulgated form and to allow those who could not establish proof of citizenship the opportunity to vote.

The silliness may have been evident when it was revealed that Arizona had just 1,479 voters who qualified for the federal-only ballot. The state has a little more than 3.2 million registered voters (PDF). That's about 0.04% of registered voters who could not provide the requisite proof of citizenship--which is fewer than one voter per precinct.

But the EAC wouldn't budge in its position, despite the rule's discernible impact on a slim number of potential voters (voters who may eventually be able to establish such proof).

And neither would Arizona budge, deciding to print two sets of ballots in its primary election.

That decision is not costless. Maricopa County, for instance, is spending $250,000--that's a quarter of a million dollars--to print two sets of ballots for the primary and the general election.

And as the primary drew to a close this week, it turned out that just 21 voters used the federal-only ballot. That's among about 820,000 ballots cast (PDF).

Only eight of them reside in Maricopa County.

Assuming half of the cost of printing was for the primary, that's $125,000 spent to print ballots that eight voters used--meaning it cost $15,625 per ballot cast.

Doug Chapin asks what this means. Here's the hard questions both sides have to answer.

For Arizona, is proof-of-citizenship worth it? It's not even clear how many of these 21 primary voters were actually non-citizens, after all; it's that they were (or had been) unable to provide the required proof of citizenship. Election administration cannot be perfect. At a cost of tens of thousands of dollars per vote affected--and, even then, only affected in statewide elections--it might be the time to revisit the ballot initiative that made the proof-of-citizenship requirement and ask the voters to amend, or even repeal.

For the EAC, is this fight worth it? A miniscule number of voters are adversely impacted by Arizona's proof-of-citizenship requirement. And while we want to ensure that eligible voters can actually register, it's hard not to make the judgment that maybe this is not the regulatory hill worth dying on. Further, Arizona can still exclude these voters in its statewide elections (as it chose to do), and the EAC's regulation would only have the impact in federal elections--when voters are casting ballots for just one to three offices compared to numerous statewide elections on the ballot.

Maybe the two sides will figure out the proper cost-benefit analysis, or maybe it's just a case of dogged refusal to budge from previously-stated positions. But it's obvious from this calculation that the battle does have an actual, calculated pricetag per impacted actual voter--and that we're left guessing about the other risks and potential costs or benefits as the two sides dig in.

Federal court orders disqualified Virgin Islands candidate back on ballot

I've blogged about the extraordinary case in the U.S. Virgin Islands in which the territory's Supreme Court ordered a candidate's name (and seated Senator) to be removed from the ballot because it concluded she was not qualified for office because she had been convicted of a crime of moral turpitude (despite being seated for office twice before). The governor responded with something of a blunderbuss solution, pardoning her so that she could obtain ballot access.

That wasn't good enough for the Board of Elections, which had been dogged in its refusal to allow Alicia "Chucky" Hansen to obtain ballot access. It insisted it would need further clarification from the Supreme Court as to whether it could put Ms. Hansen on the ballot, and that it would not do so until so ordered. The pardon mooted her disqualification, months ahead of election day, but that wasn't enough for the board.

So several voters sued the board, in federal court, to reinstate her. Given the timing sensitivity, the proceedings moved quickly, and today the federal court granted their motion for a temporary restraining order. It concluded that she re-submitted her paperwork in a timely fashion (within three days of the Supreme Court's conclusion that she was disqualified), which cured the defective nomination papers. A PDF of the memorandum is available at Scribd.

It might be nearing the end of this saga, but it highlights a concern I raise in my forthcoming article, Scrutinizing Federal Electoral Qualifications. Put briefly, when non-voters and non-legislatures involve themselves in evaluating the qualifications of candidates for office--in this case, the board of elections and the territorial judiciary--unnecessary and unforeseen consequences arise. Reserving the matter of legislative qualifications to voters and the legislature itself helps avoid these problems, minimizes litigation, maximizes electoral opportunities for voters, and ensures a robust separation of powers.

Meet the art teacher who may keep Chad Taylor's name on the Kansas ballot

Deena Horst was elected to the Kansas House of Representatives in 1994. She's primarily an art teacher by trade, residing in Salina, Kansas, where she's worked since 1968. She served in the House until 2010, and she's recently served as a member of the board of education.

In 1997, the Kansas legislature considered Senate Bill 145, which dealt with mundane election law matters. But on March 27, 1997, Ms. Horst made the following motion, which was adopted:

Committee report to SB 145 be adopted, also, on motion of Rep. Horst be amended on page 14, by striking all in lines 41, 42 and 43;
On page 15, by striking all in lines 1 through 22 and inserting:
"Sec. 10. K.S.A. 25-306b is hereby amended to read as follows: 25-306b.
(a) Except as provided by this section, no person who has been nominated by any means for any national, state, county or township office may cause such person's name to be withdrawn from nomination after the day of the primary election.
(b) Any person who has been nominated by any means whatsoever for any national, state, county or township office who declares that they are incapable of fulfilling the duties of office if elected may cause such person's name to be withdrawn from nomination by a request in writing, signed by the person and acknowledged before an officer qualified to take acknowledgments of deeds."

The final bill contains this language, and it's the one that's caused some dispute recently. Chad Taylor wants to withdraw from the race for United States Senate. He wrote a letter to Secretary of State Kris Kobach asking to withdraw, pursuant to Kansas Statute 25-306b(b). But he did not indicate that he was "incapable of fulfilling the duties of office if elected." The time for meeting this deadline passed, and the Mr. Kobach informed Mr. Taylor that he had failed to make a proper showing under the statute. Mr. Taylor sued (PDF).

Rick Hasen wonders whether the "Democracy Canon," a method of statutory interpretation that construes ambiguous statutes in favor of... well, in this case, in favor of the candidate's preference, would apply. Theoretically, doing so gives voters the "best" choice--the candidate who wants to withdraw and does not want to serve is able to get off the ballot, which maximizes the rights of the voter.

But one must overcome the hurdle as to whether Mr. Taylor is "incapable" of serving--that is, whether it's ambiguous that Mr. Taylor's sudden desire no longer to run for Senate means he is "incapable." He makes this point in his filing before the Kansas court, but there's good reason to think "incapable" means just that--not capable, not simply unwilling. (Further, I've written elsewhere that the Democracy Canon perhaps should carry less weight when construing statutes regarding candidate eligibility rather than whether to count a voter's cast ballot.)

And it's Ms. Horst's language, which struck "whatsoever" and added an ostensibly narrower provision, that may end up blocking Mr. Taylor's attempted withdrawal.

I emailed Ms. Horst but received no reply. Regardless, I think it would be of great interest to see if there's more to this story for this statute--a small amendment in 1997, uncontroversial at the time, that's now causing a lot of problems in a Kansas Senate race.

Louisiana judge dismisses Landrieu case on (mostly) right basis

A Louisiana judge has dismissed a claim that Senator Mary Landrieu was not an "inhabitant" of Louisiana and therefore ineligible to appear on the ballot. I recently published an editorial on the subject in the New Orleans Times-Picayune on this subject.

The judge got the first point right, which I noted in the editorial (and in my forthcoming Indiana Law Journal piece, Scrutinizing Federal Electoral Qualifications). That is, we don't know if Ms. Landrieu is an "inhabitant" until election day, because the Constitution only requires a candidate be an inhabitant "when elected."

But the judge went on, according to the New York Times, "The court would only welcome a challenge, he said, if and when Ms. Landrieu was re-elected on Nov. 4."

That, as I argue, is not the right result. At that point, the matter would be left to Congress. Granted, the case would not longer be premature, which was the basis for this court's original finding. But if a case is filed after (and if) she's re-elected, the case should also be dismissed.