Barriers facing a Kanye West 2020 presidential run

It’s hard to know how seriously to take a tweet from Kanye West. On July 4, he tweeted, “I am running for president of the United States!” Sadly, “journalists” from outlets like Reuters and ABC News chose not to investigate and simply engaged in the embarrassing contemporary practice of reciting a tweet as if it’s news, without, say, you know, engaging in journalism (e.g., investigating, interviewing relevant parties, reporting, etc.).

I doubt it’s serious, but for the good reason that even if it’s earnest, it’s still probably not serious. Ballot access remains a real issue for a presidential candidate at this late date. Mr. West would have two viable paths.

The first is to co-opt an existing political party’s presidential nomination. It seems unlikely the Democratic or Republican Parties would do so, nor the Libertarian Party, which formally has a nominee. Other parties like the Green Party, Constitution Party, or Reform Party are at various stages of their nominating process, and they’re unlikely to appear on the ballot in all fifty states and D.C. I suppose it’s possible, but this process seems unlikely.

The second is to run as an independent candidate. (A related path would be to establish a new political party, but this is more complicated and something I’ll dismiss for the moment.) This requires the Herculean effort of securing ballot access in all fifty states and D.C. One doesn’t need to get on the ballot everywhere to win the presidency—in theory, access in 270 electoral votes’ worth of states is enough. But, to be frank, there’s a material difference, in my view, between serious independent candidates like John Anderson in 1980 and Ross Perot in 1992, and unserious independent candidates like Lyndon LaRouche in several elections and Evan McMullin in 2016—breadth of a campaign to every (or nearly every) state lends seriousness to the ticket. And while write-in candidates should not be easily dismissed in local or even statewide elections, presidential candidates seem hard to take seriously.

(It’s worth noting that while I’ve seen the claim that Mr. West’s name could be written-in “anywhere,” that’s not true—at least, not written in and counted anywhere. Several states do not recognize write-in votes for the president, which the Supreme Court has acknowledged is legitimate if ballot access rules otherwise are not too onerous. Indeed, think how a presidential election works—one isn’t casting votes for the president, but for a slate of electors who’ll cast votes for that candidate when the Electoral College meets. A write-in campaign ought, I think, to require, at the very least, some pre-election filing of the slate of electors who’ll support that candidate, given that the ballots in most states don’t list the electors. And frankly, several states don’t have rules about even this while purporting to authorize write-in presidential votes.)

The ballot access deadline has (in theory—more on that in a moment) already passed in Texas, Indiana, Maine, New Mexico, New York, and North Carolina. Other ballot access deadlines arise in the next couple of weeks for some states. Off the top, Mr. West would be hard to take seriously, even if, today, he had amassed an army of signature-gatherers to canvass the remaining states (and challenges for signature-collection seem exacerbated during a pandemic). Some of these efforts seem tough at this stage—like Florida’s 132,000 signature requirement by July 15.

In theory, for two reasons. I borrow deadlines from Ballotpedia, and maybe they’re not all up to date. But that’s in part because many states have been pushing back their ballot access deadlines by legislative rule or executive order due to the coronavirus pandemic. Some have lowered signature requirements, and there have been rumbling about moving to online signatures in places. States like New York have shown willingness to be more generous. It’s possible, then, that pending or apparently-passed deadlines may not have yet actually passed.

Another is that Mr. West could litigate, a la John Anderson in 1980. Federal courts have been using flabby balancing tests to justify giving independent or minor party candidates additional opportunities to secure ballot access when the rules are too restrictive—and courts seem increasingly willing to do so during the coronavirus pandemic. Nevertheless, winning several kinds of challenges in different federal courts (absent Supreme Court intervention), all ahead of Election Day, seems not only to require extraordinary legal coordination and preparation (something a tweet on running a campaign seems to lack), but also extraordinary levels of success. UPDATE July 6: The Fourth Circuit has recently affirmed North Carolina’s exceedingly early March 3 independent presidential candidate petition deadline.

I’m sure some will speculate about which major party candidate Mr. West’s candidacy would most affect, whether his appearance on the ballot in certain states but not others might alter the Electoral College, and so on. My point is rather this—it’s hard to take a candidacy announced this late terribly seriously because, to be a serious candidate, one ought to appear on the bulk of ballots in the United States, and candidates announcing at this late date have little chance of doing so.

It’s also true, of course, that even an unserious candidate like Messrs. LaRouche and McMullin could disrupt a presidential election—playing a “spoiler” role in select states, and so on. That’s different than how I’m using the term “serious,” but, of course, I recognize that this may be the greater concern for many political watchers.

This post has been updated as new information arises.

UPDATE July 7: As of early July 7, there is no indication of any attempt by Mr. West to gather signatures in any states, which suggests, as this opening paragraph provided, that a tweet is not newsworthy.

UPDATE July 8: This free-wheeling interview at Forbes shows a couple of things. First, while he coins the name “Birthday Party,” his bid would assuredly be an independent one, and the “party” affiliation would be informal, at least for 2020. Second, Forbes reports, “For much of the phone calls, his core message, strategically, was that he has 30 days to make a final decision about running for president. At that point, he says, he’d miss the filing deadline for most states, though he believes an argument could be made to get onto any ballots he’s missed, citing coronavirus issues.” This reflects a seriousness I hadn’t anticipated—as I explained earlier, some ballot access deadlines might be feasible to make up given the coronavirus. But, 30 days as a “final decision” suggests that he’s not trying to get on the ballot today, which, as I noted in my July 7 update, seems strange and hard to justify. While coronavirus issues can help him make up some ground in some states, the more state deadlines slip away, the harder it is to meet them. Starting a run in early August—that is, starting signature-gathering then—would not be feasible.

UPDATE July 14: Ben Jacobs reports that there were some fits and starts of an attempt at ballot access in at least Florida and South Carolina, but it appears those have ended.

UPDATE July 15: Mr. West has filed an independent candidate statement in Oklahoma with a slate of electors.

Voting rights problems with the District of Columbia statehood bill

I’ve previously discussed the District of Columbia statehood bill, H.R. 51, and how, I think, D.C. statehood (or retrocession of D.C. to Maryland) should be contingent on a repeal of the Twenty-Third Amendment. The bill would carve out most of D.C. as a new state, but the remaining tiny enclave of federal buildings would remain, and that enclave would be entitled to three electoral votes.

One problem is a politically sticky first-mover question. If you condition statehood on repeal, a handful of states can effectively block statehood; if you grant statehood and hope for repeal, it may never happen.

I’ve tried to figure out what the remaining enclave looks like. The D.C. planning commission offers a sketch of that proposed residual district as of 2016. It mostly (but not entirely!) tracks with Census Tract 62.02, which, as of the 2010 census, had 33 inhabitants, and around 60 inhabitants as of 2018. This is imperfect, because it’s not entirely aligned with the census tract. And it doesn’t tell us how many are eligible voters. But it’s my start. And a 60-person jurisdiction receiving 3 electoral votes is, shall we say, suboptimal.

Under the Twenty-Third Amendment, Congress has power to choose how to award D.C.’s electors. So some have proposed interesting alternatives: give the votes to the winner of the Electoral College, or the winner of the national popular vote (if there’s such a thing). Another suggestion is that Congress doesn’t have to award them at all, which might lead to denominator problems in ascertaining a “majority” of the Electoral College. Now, the Twelfth Amendment says “majority of the whole number of electors appointed,” so perhaps those three aren’t counted as “appointed,” and we have (at least here) no problem.

But what Congress says it will do today isn’t necessarily what it’ll do tomorrow. There remains the possibility of Congress choosing three electors on its own, which seems to open up opportunities for mischief if we invite Congress to decide what to do with those electors. Since the Twenty-Third Amendment, Congress has assumed the people of D.C. vote for those electors. Shifting the power back to Congress invites a parliamentary-style choice. Only three electoral votes, but nevertheless congressional influence.

Section 206 of the bill anticipates this problem and provides for expedited repeal of the Amendment. But, there’s no guarantee that 2/3 of each house of Congress and 3/4 of the states would agree—or agree in time for a least one presidential election.

H.R. 51 also anticipates that there will be eligible voters remaining in the seat of government. Section 204 anticipates giving the remaining residents (33, 60, or some other tiny figure) the power to vote in federal elections. It says those residents are permitted to vote by absentee in the state where they last resided. (No word on what happens to those who never resided in another state.)

But this remedy in Section 204 is, in my view, constitutionally suspect. Congress has no power to establish voter qualifications—certainly not under the Elections Clause, as the Supreme Court said in Arizona v. Inter Tribal Council of Arizona, Inc., and perhaps not elsewhere. Of course, other Supreme Court precedents, like Oregon v. Mitchell, have approved congressional rules on voter qualifications, like reducing the federal voting age to 18 and establishing minimum residency rules for presidential elections. The Uniformed and Overseas Citizens Absentee Voting Act does the same, but, as Professor Brian Kalt has, in my view, persuasively argued, is likely unconstitutional (even if exceedingly popular).

For Congress to extend this residual group of inhabitants voting rights—and by compelling states to accept them as voters—would raise, I think, a significant constitutional question. Granted, there’s case law on Congress’s side, as well as a similar (and exceedingly popular) statute for uniformed and overseas citizens—litigation challenging Section 204 might sweep away much more than Section 204. But it remains, I think, a challenge to consider.

Finally, Section 205 is misleadingly titled, “Repeal of law providing for participation of District of Columbia in election of President and Vice-President.” All this does is repeal a conforming amendment to the Electoral Count Act of 1887, which sets the rules for Congress counting electoral votes from the states. It treats D.C. as a “state” for purposes of the rule. Repealing this statute doesn’t really do anything. Congress still has to count votes from D.C. under the Twenty-Third Amendment, if cast; if Congress casts those votes, then it has to count those votes, too, regardless of whether the Electoral Count Act gives express guidance of how to do so. Prior to the Electoral Count Act, Congress built up its own body of rules that, well, collapsed in the Election of 1876. The Electoral Count Act doesn’t “provid[e]” for D.C.’s participation in federal elections, and this section is only a technical provision that helps after the Twenty-Third Amendment is repealed.

In short, there are some election law problems with D.C. statehood absent a repeal of the Twenty-Third Amendment, and other problems that persist for the remaining few inhabitants in the residual district.

Should district court judges go "Reinhardt" on election laws during the coronavirus pandemic?

That’s the gist of Professor Nicholas Stephanopoulos’s conclusion in a recent University of Chicago Law Review Online piece.

If there’s a saving grace here, it’s the ratio of lower court to Supreme Court activity: about twenty-to-one, so far, in the area of pandemic-related election litigation. The sheer volume of these suits guarantees that the vast majority of them will never be subjected to Supreme Court review. To be sure, the Court will probably decide additional pandemic-related cases—and decide them badly, misapplying sliding-scale scrutiny and furthering its ideological agenda. But as Judge Stephen Reinhardt once said of the Justices, their limited caseload means “[t]hey can’t catch ’em all.” What they don’t catch in the leadup to the November election is likely to be better, legally and democratically, than what they do.

Professor Stephanopoulos believes that the Supreme Court is wrong on law (and on the political consequences) on a variety of election law cases, including the Supreme Court’s recent decision in RNC v. DNC out of Wisconsin. But advocating for district courts to, for lack of a better phrase, “go Reinhardt” on the Supreme Court struck me as particularly notable.

Judges relying on Bostock v. Clayton County to interpret statutes

The Supreme Court’s recent decision in Bostock v. Clayton County, interpreting the language “because of . . . sex” in the Civil Rights Act of 1964, has already yielded extensive debate and discussion, but particularly within politically conservative legal communities, as Justice Neil Gorsuch drafted a majority opinion over the dissenting opinions of Justice Samuel Alito (joined by Justice Clarence Thomas) and Justice Brett Kavanaugh.

In part, there is a debate about what “textualism” means and what tools of statutory interpretation are or are not appropriate. In another part, there is a debate over the result, concerning a federal anti-discrimination statute and its application to cases involving sexual orientation and gender identity.

The en banc Fifth Circuit recently issued a brief opinion in Thomas v. Reeves, concluding that a dispute over legislative district maps in 2019 was moot. But the case spawned 50 pages of essentially dicta concerning the proper scope and application of 28 U.S.C. § 2284(a), or the scope of authority for three-judge courts to hear election law cases.

Of note—to me, at least—was some language in Judge Don Willett’s opinion, joined by Judges Jerry Smith, Jennifer Elrod, Kyle Duncan, and Kurt Engelhardt, on statutory interpretation. In doing so, Judge Willett’s opinion pulls quotations from Justice Gorsuch’s opinion in Bostock:

Just this week, the Supreme Court issued a landmark decision, holding that the 56-year-old Civil Rights Act forbids workplace discrimination on the basis of sexual orientation or gender identity. Specifically, the Court declared that “because of sex” encompasses “because of sexual orientation or gender identity.” The latter is not distinct from sex discrimination, but a form of it. Hearteningly, all nine Justices applied textual analysis to Title VII, as we do today with § 2284(a), but, just like us, they reached polar-opposite conclusions. In dissent, Justices Alito and Thomas charged the majority with “disregarding over 50 years of uniform judicial interpretation” and protested that “there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted.” The Bostock majority did not—indeed, could not—dispute those facts. It just deemed them immaterial, insisting that what matters (all that matters) is the literal text within a statute’s four corners—what it called “Title VII’s plain terms.”

A time traveler from 1964 would doubtless express astonishment that Congress had, unwittingly and unbeknownst to everyone, equated sex discrimination with sexual orientation discrimination (much less with gender identity discrimination)—and that it had done so by adopting a one-word amendment (inserting “sex”) from a representative who was cynically trying to scuttle the entire Civil Rights Act. But the Bostock majority focused on the “broad language” that Congress adopted, not on the ripple effects, however unforeseen, that flowed from it five decades later. The Court thus gave no interpretive weight to the fact that not a single drafter of Title VII in 1964 intended, noticed, or anticipated that “because of ... sex” would cover discrimination against homosexual or transgender persons. The Court remarked that resorting to “expected applications” or only those “foreseen at the time of enactment ... seeks to displace plain meaning of the law in favor of something lying beyond it.” Text is paramount—“only the words on the page constitute the law”—and if those words lead to “unexpected consequences,” so be it.

Settled practices matter not, nor does the “unanimous consensus” among the courts of appeals stretching across a half-century. As the Court put it: “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” In the Bostock majority’s view, language codified by lawmakers is like language coded by programmers. A computer programmer may write faulty code, but the code will perform precisely as written, regardless of what the programmer anticipated. Courts, no less than computers, are bound by what was typed, and also by what was mistyped. What this means for Title VII: “When a new application emerges that is both unexpected and important,” said the Court, it is no answer to “have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime.” We are bound by Bostock, whose ascetic interpretive rules for Civil Rights Act cases apply with equal force to Voting Rights Act cases.

Judge Costa’s opinion asserts virtually the same arguments as the Bostock dissenters, appealing to “venerable” understandings, “widely accepted meaning,” and “uniform caselaw.” He labels the State’s § 2284(a) argument “unprecedented,” invoking Justice Scalia’s colorful elephants-hiding-in-mouseholes aphorism. . . .

(Emphasis added.) It’s interesting—to me, at least—that Judge Willett, who was one of the original eleven names on then-candidate Donald Trump’s “list” of Supreme Court nominees—has quickly and readily embraced Justice Gorsuch’s approach in Bostock, and critiqued Judge Gregg Costa for adopting the approach (as he saw it) of Justices Thomas, Alito, and Kavanaugh.

It’s also notable, I think, to see who signed onto this interpretation—Trump-nominated Judges Duncan and Engelhardt signed onto it, but Judges James Ho and Andy Oldham (who wrote separately on a different issue) did not. Judge Edith Jones also did not join Judge Willett’s opinion. (Others joined Judge Gregg’s opinion, didn’t participate, or didn’t weigh in.)

Was Justice Gorsuch’s approach in Bostock right? We already have several members of the Fifth Circuit who think so. We’ll see whether Bostock’s approach holds sway over other judges in the years ahead.

Oral argument analysis: Will the Tenth Amendment make a comeback in the faithless electors cases?

A pair of faithless electors cases from 2016 have made their way to the Supreme Court. (Disclosure: I filed an amicus brief on behalf of myself in support of neither party here.) SCOTUSblog posts for Chiafalo v. Washington and Colorado Department of State v. Baca are here and here.

The Tenth Amendment argument unfolded in a curious way because of the Court’s new format of oral argument, where justices asked questions one by one.

The framing here is important before we get to the questions. In 1995, the Supreme Court decided U.S. Term Limits v. Thornton. That case held that states cannot add to the qualifications enumerated in the Constitution for members of Congress, because the Constitution fixes the qualifications and states have no power to add to them.

It was a 5-4 decision (written by Justice Stevens, joined by, among others, Justice Kennedy). Among the arguments rejected by the majority was that the Tenth Amendment empowered states to add qualifications. The majority, relying on the work of Justice Story and others, argued that the states had no reserved powers over federal elections, because there were no federal elections prior to the enactment of the Constitution. Instead, all state power over federal elections must come from an affirmative grant in the Constitution. I think that’s the right argument, as I lay out, in part, in Weaponizing the Ballot.

Justice Thomas dissented on behalf of four justices. He argued that the Tenth Amendment did include such a power. He lost, but still—he had four justices who agreed with him.

Fast forward to today. Justice Thomas asked Professor Larry Lessig, who represented petitioner Chiafalo in the first argument, about a reserved powers of the states claim. Washington did not raise a Tenth Amendment, Professor Lessig notes, but regardless the Constitution empowers electors to have certain discretion, which states cannot take away.

Questions when down the line until it reached Justice Kavanaugh, the most junior justice. He also raised the Tenth Amendment argument with Professor Lessig. Professor Lessig notes that Washington didn’t raise it, and there’s no tradition of state power to control presidential electors.

Now, this is a moment. Justice Kennedy had rejected the Tenth Amendment argument in Thornton. Justice Kavanaugh has replaced him and seemed receptive to the Tenth Amendment.

So, oral argument goes back to the top, to the Solicitor General of Washington. And on down the line until it comes to Justice Sotomayor, who takes the opportunity to push back on the Tenth Amendment claim. In a real-time argument, this would probably have happened when Justice Kavanaugh spoke. But she emphasized, “two of my colleagues” raised it, but Washington never did, and it seems a strange reserved power when states never knew they had it.

Then, on back to Colorado’s oral argument. Colorado did raise a Tenth Amendment claim. Justice Kagan pressed, “Why doesn’t Thornton foreclose that argument?”

So Justices Sotomayor and Kagan, in my view, were very much pushing back against the concerns raised by Justices Thomas and Kavanaugh (and, speaking with more speculation, specifically Justice Kavanaugh) on the Tenth Amendment.

Justice Gorsuch didn’t weigh in on the Tenth Amendment piece, but I want to highlight n.60 of a law review article he wrote in 1991 on term limits, expressly reserving addressing the Tenth Amendment question that would later be address in Thornton. Not that his former views would offer any insight, but, there, he did believe that term limits are a “manner” of holding elections and within state power. It’s unclear whether his views (or reserved views) from that day would carry over here.

A few other highlights from oral argument.

Limiting principles. It’s hard to overstate how many times the justices asked either side about limiting principles—do electors have unfettered discretion? Can states condition electoral appointments however they want? Both sides continued to exert fairly maximalist interpretations, in my view, rather than a claim more closely hewing to the facts presented. That said, it’s in part because the justices are looking for larger principles. But the frustration was palpable. Chief Justice Roberts asked about casting a vote for a giraffe, and Justice Thomas about a vote for Frodo Baggins. Pressing Washington about the limits of its power, claims like “the Equal Protection Clause” and the like were the boundaries. It’s hard to know if either side made much headway here.

Bribery. Professor Lessig made an important—and, I’m not sure entirely necessary—claim during argument, one that multiple justices later seized upon. If an elector was bribed, could that elector be removed? Only after a criminal conviction, Professor Lessig noted. That seemed a bridge too far for many members of the court, who seemed concerned that a bribed elector could still vote if the wheels of justice hadn’t moved swiftly enough.

Manufactured case. The justices at a few points wondered about Baca in particular as a manufactured case. Justice Breyer pressed both sides on the claim that Section 1983 did not allow a state to be sued, so why should a court hear the case? Both sides argued it was non-jurisdictional and how they wanted to strategically present the case. Justice Alito went a step farther, questioning Professor Lessig’s motivations in helping invite chaos in the 2016 presidential election.

Pragmatism. Many justices—particularly Justices Breyer, Alito, and Kavanaugh, but also in strains of Justices Kagan and Gorsuch—echoed practical concerns of two kinds. First, if a judicial decision would render significant uncertainty or unpredictability, perhaps that decision should not be issued—as Justice Kavanaugh put it, the “avoid chaos” theory of judging. Second, in the absence of very clear guidelines from the Constitution, perhaps the courts should just defer to the state judgment, which sometimes binds electors and sometimes doesn’t. Justice Kagan openly floated this possibility, as she seemed unconvinced by either textual or historical arguments, suggesting deference would be warranted.

In the end, there’s plenty of uncertainty in the two cases. And the justices have… six or seven weeks to sort it all out….

A quick look at the draft election law ACCESS Act, a part of the draft HEROES Act

H.R. 6800, the Health and Economic Recovery Omnibus Emergency Solutions Act, or HEROES Act, was recently posted. It includes the American Coronavirus/COVID-19 Election Safety and Security Act, or ACCESS Act. (That’s separate and apart from the $3.6 billion in funding for elections given to states.) I thought I’d break down its initial draft provisions relating to federal elections.

Section 160002: Requirements for Federal Election Contingency Plans in Response to Natural Disasters and Emergencies

States have 30 days to develop contingency election plans for natural disasters or infectious diseases, including providing equipment to protect the health and safety of poll works and voters, and to recruit poll workers from “resilient or unaffected populations.” That includes recruiting government employees, or high school or college students.

It includes a private right of action in addition to Department of Justice oversight, which invites individual litigation instead of, say, lodging review exclusively in a federal agency.

Quick take: On the whole, this is a fairly modest requirement that states should be thinking about anyway. I’m not sure allowing individual litigation is the best mechanism for enforcement, but maybe it won’t be significant, and maybe I’m wrong.

Section 160003: Early Voting and Voting By Mail

This section updates the Help America Vote Act of 2002 by requiring early voting at least 15 consecutive days before Election Day, including weekends. It anticipates this will look like in-person voting. It adds some details, like polling places should be “within walking distance of a stop on a public transportation route” where “practicable,” or in areas that “ensure” “residents of rural areas” have access.

It gives the Election Assistance Commission (“EAC”) new power: to “issue standards for the administration of voting prior to the day scheduled for a Federal election,” including “nondiscriminatory geographic placement of polling places.”

It also requires states to begin “processing and scanning ballots cast during the early voting period” before Election Day, but does not compel states “to tabulate ballots in an election before the closing of the polls on the date of the election.”

It would also expand absentee voting. State could not “impose any additional conditions or requirements on the eligibility to cast the vote in such election by absentee ballot by mail”—essentially, no-excuse absentee ballots everywhere. It forbids states from using identification requirements (photo or non-photo), and from requiring notarization or a witness signature for requesting a ballot or casting it. It includes a “due process” requirement in the event of a signature mismatch of an absentee ballot, giving a 10-day window to cure the problem—interestingly, to cure such discrepancy, either in person, by telephone, or by electronic methods.” A similar opportunity extends for lack of signature. States must also provide absentee ballots to be requested online.

In the event of a declared “emergency or disasters,” election officials must mail absentee ballots “to all individuals who are registered to vote in such election.” This rule would extend to the November 2020 election (by statute, independent of any declared emergency or disaster, due to the coronavirus).

Absentee ballots would need to be accepted by any state as long as they were postmarked on or before Election Day and received within 10 days after the election. It would also allow unlimited “ballot harvesting.” States would also need to institute a ballot tracking program.

It also adds a private right of action.

Quick take: Several states do not have early in-person voting. Many others do not have it for 15 consecutive days before the election. This would change how voting works in a number of states. It would also be interesting to see how the EAC would go about issuing early in-person voting standards—how broad or narrow, for instance, in scope. The EAC is a commission consisting of four members, two Republicans and two Democrats, so it requires bipartisan consensus to develop such standards.

It would also rather dramatically expand absentee voting opportunities and alter verification procedures, and it would turn an election into an effectively all-mail election during disasters (including all 50 states in 2020). It would expand ballot harvesting. These are non-trivial changes that, I think, will require some more refinement before a nationwide consensus could be reached—given that it would effectively override at least some election rules in the vast majority of jurisdictions.

Section 160004: Permitting Use of Sworn Written Statement to Meet Identification Requirements for Voting

Well, the title says it all. It preserves the requirement under HAVA that first-time voters who registered by mail must present identification.

Quick take: Many states have some form of identification requirement. Some that do also have a similar requirement as this proposed section. But, again, it would be a fairly significant change in a number of states. I should add that a statute like this (and a similar requirement up in Section 160003) might run afoul of the Elections Clause. States have the power to determine the qualifications of voters; there’s a plausible argument that includes the power to enforce qualifications, as the Supreme Court suggested in Arizona v. Inter Tribal Council of Arizona. In my view, laws like voter identification requirements and voter registration requirements likely pass constitutional muster as a component of the “manner” of holding elections, but I toss it out there as a potential complicating factor.

Section 160005: Voting Materials Postage

This section requires states to prepay postage for absentee ballots and include a self-sealing (i.e., one you don’t have to lick!) envelope.

Section 160006: Requiring Transmission of Blank Absentee Ballots Under UOCAVA to Certain Voters

Certain voters may request an electronically-delivered blank ballot (for an idea of what that “federal write-i absentee ballot” (FWAB ) looks like, see here). That includes those who haven’t received a ballot within two days of the election after requesting one, lives in a jurisdiction with an emergency declaration within 5 days of the election, excepts to be absent to help with an emergency, is or expects to be hospitalized, or has a disability in a state without remote ballot marking.

Quick take: While this expands some emergency voting opportunities, the FWAB is basically a blank piece of paper, and I wonder about expanding its use in these circumstances.

Section 160007: Voter Registration

This Section requires states to offer online voter registration (most do). It requires that the application “does not seek to influence an applicant’s political preference or party registration.” The Section also requires states to have “same day registration” and prohibits them from using more than the last 4 digits of a Social Security Number

Quick take: Again, the bill is a fairly large change for many states—about 21 states have same-day registration.

Section 160008: Accommodations for Voters Residing in Indian Lands

“Given the widespread lack of residential mail delivery in Indian Country,” this Section provides extra locations to pickup and return ballots and to register without a residential mailing address.

Section 160009: Payments by Election Assistance Commission to States to Assist with Costs of Compliance

Detailing how the $3.6 billion will be used.

Section 160010: Grants to States for Conducting Risk-Limiting Audits of Results of Elections

This is an interesting little section—it authorizes $20 million right now and more in the future to repay states if they conduct risk-limiting audits. It doesn’t compel states to do so, but allows them to receive money if they do.

Section 160011: Additional Appropriations for the Election Assistance Commission

Section 160012: Definition

This would define “Federal office” in the Help America Vote Act as “a general, special, primary, or runoff election for the office of President or Vice President, or of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress.”

Quick take: I’ve seen this language elsewhere in the statute. It’s not clear to me how far federal power can necessarily extend in primary elections for President, but my assumption is this definition is designed to ensure U.S. territories must comply and can receive funding.

*

In short, there aren’t too many constitutional red flags to me in reviewing this legislation (exception potentially its application to presidential primaries and any overlap it may have with voter qualifications). But it does fairly dramatically alter a number of state practices, including practices that most states currently reject. Maybe it’s time for such a dramatic overhaul of elections—and to implement those new changes this November. But I think, if the ACCESS Act as a part of the HEROES Act becomes law, it will likely undergo some serious revisions to secure support of both houses of Congress and the President’s signature.

Washington Post significantly overstates Supreme Court's role in RNC v. DNC absentee ballot dispute

The headline at the Washington Post in the aftermath of the Wisconsin presidential primary election (and, among other elections, state supreme court election) is a bit curious: “Unexpected outcome in Wisconsin: Tens of thousands of ballots that arrived after Election Day were counted, thanks to court decisions.” Why “unexpected”? Well, unexpected if you didn’t read what the lower courts were doing and only focused on certain opposition to the Supreme Court’s decision in RNC v. DNC.

A three-journalist by-line offer some of these takes:

But in the end, tens of thousands of mail ballots that arrived after the April 7 presidential primaries and spring elections were counted by local officials, a review by The Washington Post has found — the unexpected result of last-minute intervention by the U.S. Supreme Court.

…

The surprising outcome after warnings that many Wisconsinites would be disenfranchised amid the pandemic was the result of a largely unexamined aspect of the court’s decision that temporarily changed which ballots were counted. Because of the order, election officials for the first time tallied absentee ballots postmarked by Election Day, rather than just those received by then — underscoring the power of narrow court decisions to significantly shape which votes are counted.

…

Democrats think they have secured a game-changing precedent from the Supreme Court’s 5-to-4 order.

…

In Wisconsin, the Supreme Court’s ruling opened the door to a surge of valid absentee ballots that officials would have otherwise rejected under a state law requiring them to be received by Election Day.

…

The five conservative justices sided with the GOP, issuing an opinion on the eve of in-person voting that a blanket extension of the deadline would improperly allow voters to cast their ballots after April 7. Instead, they said ballots had to be postmarked by Election Day — effectively imposing a new standard.

…

When Republicans appealed to the Supreme Court, they challenged the decision of lower courts to extend the ballot deadline but did not explicitly seek a postmark deadline.

In bold, in the last portion of my excerpt, is a line that appears in the 45th paragraph of the piece.

What’s “surprising,” “unexamined,” and so on is because the obsessive focus was never on the lower courts’ proceedings, but instead on one aspect of the Supreme Court’s decision (highlighted by the dissenting justices, which cued how many journalists framed the litigation).

The Supreme Court concluded that an April 2 District Court order, effectively extending the election from April 7 to April 13 (refusing to count ballots until then, counting all ballots received until then, and so on), was too dramatic a departure too late in the election process. Four dissenting justices focused on disenfranchised voters—i.e., those who wanted to vote by mail but would have difficulty doing so by April 7. That’s what many journalists “examined.”

But the District Court did extend the deadline for receiving absentee ballots. Some states authorize jurisdictions to count ballots received days after Election Day, as long as they were postmarked by Election Day. Other states, like Wisconsin, require absentee ballots to arrive by Election Day to count. The District Court, as a part of the litigation, determine that the present circumstances required extending the absentee ballot deadline beyond Election Day, as long as it was postmarked by then. (It made other changes, too, like extending the deadline to require absentee ballots.)

Republicans expressly opted not to challenge this portion on appeal. Indeed, while the Washington Post’s 45th paragraph says that Republicans “did not explicitly seek a postmark deadline” (which, I think, means “did not seek to challenge the postmark deadline rules”), it’s actually more than tacit acquiescence: Republicans expressly did not appeal that part of the order. From its emergency application in the Supreme Court:

The relief that Applicants seek here is exceedingly modest. Applicants appreciate the challenges that the current pandemic creates for voters and election officials. They have not appealed other adjustments made by the district court, such as its extension of the deadlines to remotely register to vote and to request an absentee ballot. And although Applicants maintain that the issue of late-arriving ballots is premature and could be addressed when and only if the predicted mail delays actually materialize, Applicants only ask for a partial stay of the portion of the district court’s order, making clear that the extension of the deadline for the receipt of ballots applies only to those that were postmarked (or otherwise delivered) by April 7. This would give the Respondents the relief they actually requested, respect this Court’s warnings about courts altering the rules on the eve of elections, and prevent the serious possibility of fraud and misconduct created by the district court’s order.

Republicans affirmatively did not appeal this aspect of the District Court’s order. They wanted modest relief. They acknowledged remaining disputes on the facts but also acknowledged the tradeoffs of changing rules prior to the election (essentially, an inversion of the Purcell principle).

Additionally, the Washington Post is overstating it to say that the Supreme Court “effectively impos[ed] a new standard.” It did no such thing. The standard was one created by the District Court. And it was one the parties never litigated, from the very opening of the the Supreme Court’s opinion:

Wisconsin has decided to proceed with the elections scheduled for Tuesday, April 7. The wisdom of that decision is not the question before the Court. The question before the Court is a narrow, technical question about the absentee ballot process. In this Court, all agree that the deadline for the municipal clerks to receive absentee ballots has been extended from Tuesday, April 7, to Monday, April 13. That extension, which is not challenged in this Court, has afforded Wisconsin voters several extra days in which to mail their absentee ballots. The sole question before the Court is whether absentee ballots now must be mailed and postmarked by election day, Tuesday, April 7, as state law would necessarily require, or instead may be mailed and postmarked after election day, so long as they are received by Monday, April 13. Importantly, in their preliminary injunction motions, the plaintiffs did not ask that the District Court allow ballots mailed and postmarked after election day, April 7, to be counted. That is a critical point in the case.

One more line later in the opinion:

The Court's decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.

In short, the Supreme Court never examined the extended absentee ballot receipt deadline. While it’s “important[]” that that issue was not appealed, that’s because it makes its per curiam decision not effectively extend Election Day to April 13, as it opens, a “narrow, technical” question.

It would be remarkable if the Supreme Court overturns a lower court decision that neither party challenges on appeal. To say that failure to do so is “effectively impos[ing] a new standard” is something of an overstatement.

Now, I don’t doubt that litigants will seize on the District Court’s action to seek opportunities—frankly, on thin records at the moment ahead of the November election—to claim that absentee ballots received after Election Day but postmarked by then should be counted in those states that require receipt by Election Day. The NCSL reports that 42 states and DC require mail-in ballots to be received by Election Day. So it would be a fairly significant departure for district courts to start revising election laws right now—particularly given that (1) legislatures have ample opportunity to address the matter ahead of November, and (2) there is deep uncertainty about what voting in November 2020 looks like. That said, there will undoubtedly be increased requests for vote-by-mail opportunities, increased snafus in trying to meet demand, and increased challenges in the Post Office trying to deliver ballots by Election Day. How individual district court judges handle these requests—how quickly, and with what kinds of appeals—remains deeply uncertain.

That said, I don’t think RNC v. DNC tells us very much, if anything, about these matters. It’s hardly a “game-changing precedent.” If anything, it indicates that, with a thin record, a decision close to the election, and a properly-framed appeal, the Supreme Court would find such a judicial order unwarranted. But we’ll see how the litigation unfolds in the months ahead.

Note: I’m fairly sloppy with my use of “absentee” and “vote-by-mail” in blog posts, often using them interchangeably, so please forgive me!

In today's WSJ: "Trump Can't Postpone the Election"

In today's Wall Street Journal, I have an opinion piece entitled, "Trump Can’t Postpone the Election." It begins:

‘Mark my words, I think he is going to try to kick back the election somehow,” Joe Biden recently said of President Trump during an online fundraiser. To “try” is one thing. But there are constitutional and legal reasons why a president can’t delay a federal election or extend his term of office, which should dispel any worries.

11th Circuit panel overturns Florida district court decision in ballot order dispute case, and a shot across the bow to extend Rucho v. Common Cause

I’ve previously written about a Florida district court’s finding that a particular ballot order scheme unduly burdened the right to vote—and my skepticism about that holding. A panel of the 11th Circuit has overturned that decision, largely on justiciability grounds, finding that the plaintiffs lacked standing to bring the claim. That part, in an opinion by Judge William Pryor, was unanimous. Judge Jill Pryor partially dissented, agreeing that the plaintiffs lacked an injury in fact (sufficient to reverse the district court) but disagreeing on other issues the majority reached.

One interesting piece of note. Judge William Pryor wrote a separate concurring opinion to his own majority opinion. In it, he argued that Rucho v. Common Cause, the recent partisan gerrymandering decision from the Supreme Court, makes the plaintiffs’ claim a nonjusticiable political question. Florida’s ballot order law gives an advantage to the incumbent governor’s political party. Judge William Pryor argues that the same principles are at stake here. He notes, “partisan considerations are not entirely off limits in election administration,” there are “line-drawing problems,” and that while “standards exist to assess the burdens imposed by restrictions on ballot access,” “no standards exist to judge challenges to the partisan advantage conferred by ballot order.”

It’s interesting (to me, anyway) that the bulk of commentary after Rucho has focused on the partisan gerrymandering point and not the larger questions of judicial involvement in the political process. Judge William Pryor’s opinion suggests a depth of Rucho that could alter how federal courts approach a whole host of election law-related claims.

It would require a little more thinking from me before wading in. One point of sympathy with his concurring opinion, however. Judge William Pryor writes, “The Constitution commits the ‘Times, Places and Manner’ of holding congressional elections to legislatures—the state legislatures in the first instance, subject to any regulations Congress prescribes. U.S. Const. art. I, § 4, cl. 1. Our founding charter never contemplated that federal courts would dictate the manner of conducting elections—in this lawsuit, down to the order in which candidates appear on a ballot.” I have much regard for this structural-based thinking about the Constitution and elections. The existing regime of flabby balancing tests derived from rather vague constitutional provisions strikes me as unworkable and unsustainable. The justiciability point of discernable standards is, I think, a different but related concept. Surely more to be written on that in the years ahead!