Can the Senate expel Ted Cruz and Josh Hawley for their actions during the counting of electoral votes?

A few years ago, there was a flurry of discussion about the possibility of expelling Roy Moore in the event he won the Senate election in Alabama. There’d been discussion in recent years about Senator Roland Burris, Senator Bob Menendez, Senator Al Franken, and Representative John Conyers.

A new question has arisen: can the Senate expel Senators Ted Cruz and Josh Hawley for their actions during the counting of electoral votes? (I use “actions” broadly, subject to what I write below.)

Here’s the text of the Constitution:

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

As I’ve explained before, there are few contours to the power to expel, except that it must occur by a two-thirds vote. That vote is mostly a procedural check, and the substance has largely been left to the Senate to flesh out. (Congress can also punish—censure or reprimand are the usual forms—by a simple majority.) No one’s been expelled from the Senate since the Civil War, but investigations have prompted resignations in recent years. And most recent cases have turned on criminal charges, but not all. Wikipedia has a quick and convenient summary of Senate and House cases.

I also note a couple of precedents in some of these Senate decisions (and I noted here, Congress can always overturn its own precedents, but it usually loathe to do so): “First, the Senate has typically wondered whether it has the power to expel members for conduct that arose prior to the candidate taking office. (Some earlier debates actually focused on whether it had to arise during that existing term in office and not from a preceding term, but recent Senate investigations have moved away from that view.) Second, the Senate has generally refused to expel a member for conduct known to the voters at the time of the election, the notion being that it's not for the Senate to expel a member with such baggage sent by the voters.”

The actions of Messrs. Cruz and Hawley arose during their time in office and were not known to voters, so these precedents don’t materially address these concerns.

Another might be for Congress to specify with some precision what was the inappropriate behavior—signing onto an objection under the Electoral Count Act, that, in my view, was shameless and lacking in law and fact; speaking in support of an attempt to overturn the presidential election; voting after the riot consistent with the demands of the rioters; and so on. Speech might be different from behavior. The timing of events may matter, too.

But the fact that a member of Congress engaged in what might otherwise be constitutionally-protected speech is not enough to insulate one from punishment—although, to date, it hasn’t risen to anyone’s expulsion. Consider (on the House side) Representative Joe Wilson’s “You lie!” moment, which led to a formal House reprimand. Lesser charges like censure or reprimand—the Constitution authorizes these by a simple majority—are easier to secure.

Beyond that, it becomes a political judgment of the Senate. I don’t have much more insight to offer at the moment than that. It might be that the Senate would not move forward with anything that would result in failure (i.e., if it did not feel it could secure a majority vote or a 2/3 expulsion vote), but I don’t know how it would assess that. I also think it would look hard at any precedent it would set. My assumption is the Senate would not move forward with expulsion, although it might choose to censure (even then, it might conclude that branding them as martyrs might embolden such actions in the future, another political judgment). But beyond that, it remains within the purview of the Senate’s power to determine what constitutes actions rising to the level of expulsion-worthy behavior. Its history since the Civil War (and in recent years) suggests it’s unlikely to do so.

Kanye West, federalism, and party disaffiliation statutes in presidential elections: Idaho edition

Last week, I noted that an Arizona trial court, in my view, got a party disaffiliation requirement wrong in the Kanye West ballot access case. Mr. West may be a registered Republican in Wyoming, but he is not a member of any recognized political party in Arizona. When the Arizona Supreme Court affirmed the trial court’s judgment, it did so on a different ground.

There’s a similar challenge in Idaho now. Idaho Code § 34-708A provides, "Such declarations must state that such persons are offering themselves as independent candidates and must declare that they have no political party affiliation." But a “political party” is defined specifically under Idaho law. For instance, "Upon certification by the secretary of state that the petition has met the requirements of this act such party shall, under the party name chosen, have all the rights of a political party whose ticket shall have been on the ballot at the preceding general election." The Republican Party of Wyoming has no such rights in the State of Idaho.

Again, this isn’t a mere technicality. It’s simply that presidential candidates look different because they’re crossing state lines. John Anderson might be a registered Republican in Illinois but could run as an independent candidate in the general election. George Wallace might be a registered Democrat in Alabama but run under the banner of the “American Independent Party.” The Democratic-Farm-Labor Party is unique to Minnesota for Democratic presidential candidates; the U.S. Taxpayers Party is unique to Michigan for the Constitution Party’s candidates. And fusion tickets in state like New York might result in unusual translation of voter registration across states. In a state like Idaho, the only way for the Green Party candidate to get on the ballot is via the independent route—because the Green Party is not recognized in Idaho.

To the extent Mr. West’s petition has other problems, those might well be good reasons to exclude him from the ballot. But on this measure, it’s not.

The Twelfth Amendment and the Libertarian Party ticket in South Carolina in 2020

The Libertarian Party nominated Jo Jorgenson and Jeremy Cohen as its presidential and vice presidential candidates. The Libertarian Party has ballot access in nearly every state, including South Carolina. But there’s a Twelfth Amendment wrinkle to this ticket this year: Ms. Jorgenson and Mr. Cohen are both inhabitants of South Carolina, as their filing reports.

The Twelfth Amendment requires that when presidential electors meet to vote for a prsident and vice president, on of those two names, “at least, shall not be an inhabitant of the same state with themselves.” That means South Carolina electors cannot vote for two South Carolina inhabitants. It means that the ticket, as printed, is an unconstitutional one.

Of course, either Ms. Jorgenson or Mr. Cohen might move before the electors convene. In Jones v. Bush, for instance, Dick Cheney moved from Texas to Wyoming ahead of the 2000 presidential election to avoid this very issue in Texas.

While it seems unlikely that South Carolinians would choose the Libertarian Party ticket this fall, I’ve repeatedly argued that decisions like these, even involving disputedly-eligible tickets, should be left to the political process. And it’s of course the case that the facts could change before, or here even after, Election Day to allow the ticket to become eligible—an extra reason to do so.

South Carolina law purports to bind electors to vote for the ticket and not vote “faithlessly,” or else electors are subject to criminal penalties. But the law also provides that the executive committee of the party “may relieve” electors of this duty if “in the opinion of the committee, it would not be in the best interest of the State for the elector to cast his ballot for such a candidate.” That might be a case where a candidate dies. It might also be a case where vote might be rejected by Congress. That might allow the Libertarian electors to vote for someone else for, presumably, vice president.

In any case, the mere prospective of a potential Twelfth Amendment problem is no reason to exclude a ticket from the ballot. But, there is a lurking Twelfth Amendment issue here.

Kanye West, Arizona, federalism, and party disaffiliation statutes in presidential elections

I haven’t weighed in much on the Kanye West presidential run since mid-July because, well, I haven’t much of legal interest to write. There have been some typical ballot access issues and some petitioning challenges. He’s gotten ballot access in a few places but not most others, and he’s been kicked off the ballot in several places. He’s not running a “serious” campaign, as I indicated in July. And so I haven’t spent much effort thinking about it.

But the challenge in Arizona to Mr. West’s candidacy piqued my interest, because a district court got the law, in my view, quite wrong.

Arizona law provides under Section 16-341, “Any qualified elector who is not a registered member of a political party that is recognized pursuant to this title may be nominated as a candidate for public office otherwise than by primary election or by party committee pursuant to this section.” (Emphasis added.) Mr. West is apparently a registered Republican in Wyoming. Plaintiffs sought to exclude Mr. West from the ballot by arguing that he sought ballot access through a nonpartisan route, which is forbidden if he’s a Republican. The district court agreed, saying that the “most sensible reading” of the statute is that Mr. West is a Republican.

But when we register to vote and affiliate with a political party, we do not affiliate with a “national” party. We affiliate with a state party. In Arizona, there is a Republican Party, recognized under Arizona law, with its headquarters in Arizona. But Mr. West is registered with the Republican Party of Wyoming, not of Arizona. Wyoming’s Republican Party is not recognized under Arizona law.

True, the Republican Party of Arizona holds a presidential nominating primary to send delegates to the Republican National Convention. And true, this November, the Republican Party of Arizona, like the other Republican Parties throughout the country, will name Donald Trump and Mike Pence as their presidential ticket. But how the state parties affiliate with the national apparatus is a different question.

Maybe this seems too cute by half, but it’s a testament to how presidential elections just look different. For instance, Minnesota doesn’t have a “Democratic Party.” It has a Democratic-Farmer-Labor Party, but it’s affiliated with the national Democratic Party and participates in the Democratic National Convention.

We might want a disaffiliation statute if you’re an Arizona Republican running for an nonpartisan slot for, say, Congress or the state legislature. The Supreme Court in Storer v. Brown upheld such a requirement to protect the interests of the political party from sham candidacies or party raiding. But for presidential tickets, however, we’d need more express statutory clarity—at least, I think so, and my reading of the statute, I think, is the more persuasive view.

Puzzles when crossing state lines in election contests is hardly a novel problem. In 2015 in Arizona, for instance, a court threw out a criminal conviction for someone accused of voting twice, once in Arizona and once in Colorado. The court noted that the defendant hadn’t voted twice under the statute—the statute applied to Arizona elections, not other states’ elections.

It might be too late for an appellate court to correct this misunderstanding of state law. I don’t know whether Mr. West would appeal, or if there are other bases for throwing out his petition. But it’s simply to point out, I think, that disaffiliation statutes simply look different in presidential elections with out-of-state candidates.

UPDATE: On September 8, the Arizona Supreme Court affirmed the exclusion of Mr. West from the ballot, but not on this basis, which is good news. That said, it does appear that the Court used a novel rule previously inapplicable to other candidates, which may be its own problem….

Details of the Biden campaign's concerns about Tammy Duckworth's eligibility as a "natural born citizen"

From this New York Times deep-dive:

Other candidates rose and faded in the process: Senator Tammy Duckworth of Illinois powerfully impressed Mr. Biden’s search team, but his lawyers feared she would face challenges to her eligibility because she was born overseas.

…

Ms. Duckworth was regarded by Biden advisers as among the candidates likeliest to help him achieve a smashing electoral victory in November. But legal advisers to the campaign expressed urgent concern that Ms. Duckworth could face challenges to her nomination in court: She was born overseas, to an American father and a Thai mother. While Mr. Biden’s team believed Ms. Duckworth was eligible for national office, campaign lawyers feared that it would take just one partisan judge in one swing state to throw the whole Democratic ticket off the ballot.

I don’t have strong thoughts on the merits of whether Ms. Duckworth is a “natural born citizen.” And even if 2020 was relatively quiet on natural born citizen challenges (until recently!), it’s interesting to see the political process play out here.

I’ve highlighted that there are several bodies that can ascertain candidate eligibility outside the judiciary: the voters, presidential electors, and Congress. Political parties are a good addition. But perhaps it’s worth adding a category for vice presidential candidates, as the nominee and his team can make judgment calls about eligibility, too.

But, disappointingly, the campaign lawyers made a pessimistic call. My work strongly resists the call for other bodies—particularly judges—to review candidate eligibility. Indeed, I’ve written extensively about that. I think many times there are not rules in place to even allow courts to review a candidate’s qualifications. A declaration from Congress could go a long way to ensure that a candidate’s eligibility is not questioned elsewhere. I think most states don’t have statutes in place to authorize review of candidate qualifications, and, indeed, I think they shouldn’t. And there’s always appellate review—granted, one challenge of late-breaking litigation (like naming a vice presidential candidate in August when ballot printing begins in a matter of weeks) increases risk and uncertainty.

Furthermore, it’s also a fundamental weakness of the National Popular Vote. Could one state exclude a candidate from the ballot? And if so, doesn’t that throw off the “national” popular vote total? Absolutely.

In short, it’s a highly cautious, litigation-avoidance strategy that kept (at least in part) Ms. Duckworth off the ballot. It’s worth considering whether a veepstakes that took place earlier could have successfully resisted litigation that might have challenged her eligiblity.

Kamala Harris's other presidential eligibility question (and yes, she's qualified)

I noted earlier that 2020 has proven (so far) to be a quiet year for “natural born” citizen challenges. Senator Kamala Harris of California briefly ran for the Democratic presidential nomination, and she’s been named former Vice President Joe Biden’s running mate. It might lead to a flurry of challenges to her eligibility, as she was born to two (possibly) non-citizen immigrants (the details are thin about when her parents became citizens) in California. That, I think, makes her a “natural born citizen,” as Professors Eugene Volokh and Michael Ramsey point out. She must meet these qualifications because, as the Twelfth Amendment provides, “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

But I wanted to highlight another eligibility question (and spoiler alert, despite my clickbait-y headline, she’s qualified). The President must be “fourteen Years a resident within the United States.” Ms. Harris moved to Canada as a child, and she attended and graduated from high school there.

One ambiguity is whether this means fourteen consecutive years (including the fourteen most recent consecutive years) or fourteen cumulative years. Practice has long recognized it to be cumulative. Thomas Jefferson’s stint in France before serving as Vice President and President (before the Twelfth Amendment, but still a requirement to receive votes as presidential candidate), or Herbert Hoover’s service in London before his term in office, suggest as much. Alternatively, one might say that they were still “residents” of the United States, as it was the last true, permanent home with the intent to remain indefinitely, even if time away moved them abroad. Ms. Harris’s example seems less like Messrs. Jefferson and Hoover in that regard—she moved out of the country, established residence elsewhere, and later moved back to the United States.

Regardless, even if she was a resident of Canada for several years, she easily meets fourteen cumulative years as a resident of the United States. And, more to the point, actually, she meets fourteen consecutive recent years, as she attended college and law school in the United States in the 1980s, easily meeting thirty-plus years’ residency in the United States.

Regardless, her candidacy, like that of Canadian-born Senator Ted Cruz, offers a little something to test out the existing presidential qualifications framework.

Weaponizing the ballot: voters sue to keep candidate off ballot for unpaid campaign finance fines

Richard Winger over at Ballot Access News has the details about a lawsuit filed in federal court challenging a candidate’s appearance on the ballot. Brenda Jones, a former member of Congress, is challenging incumbent Rashida Tlaib in the Democratic Party primary in a congressional district in Michigan. Plaintiffs in this lawsuit claim Ms. Jones falsely attested that she had no unpaid campaign finance fines, when she apparently did.

In Weaponizing the Ballot, I emphasize that even fairly light restrictions on a candidate’s ballot access that do not pertain to the “manner” of holding an election—that is, procedural rules pertaining to an election—would run afoul of the Constitution’s enumerated qualifications for federal office and exceed a state’s power under the Elections Clause. The claim holds here, in my view—the lawsuit should fail, and Ms. Jones (whose name already appears on the ballot—plaintiffs ask that votes cast for her not be counted) should be able to seek office unencumbered by the Michigan statute.

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….

2020 proving a quiet year (so far) for "natural born citizen" legal challenges

On the heels of conspiracy theory-driven questions about the birthplace of Barack Obama and legal questions about the birthplace of John McCain in the 2008 (and, for Mr. Obama, the 2012) election, there was a surge in “natural born citizen” litigation in the 2016 presidential election. I’ve advocated for amending the Constitution to simplify these inquiries, a tall order but one consistent, I think, with the often-marginal claims advanced and deep confusion concerning the constitutional phrase.

I thought we might see another surge of litigation in 2020. Some of the Democratic candidates whose qualifications might be challenged have dropped out, but no challenges were ever raised (that I saw). And one candidate, Tulsi Gabbard, born in American Samoa to citizen parents, has seen no challenges (again, that I’ve seen) raised. (I think Ms. Gabbard is likely eligible to serve as President, largely for reasons I think Mr. McCain was.)

Challenges sometimes happen in state administrative proceedings to ascertain whether ballot access is appropriate; it may also happen in state or federal court. But I haven’t seen any such challenges.

It may be that Ms. Gabbard hasn’t attracted the attention of the “birther” movement that kept its momentum from 2012 into 2016. Maybe her eligibility is less a target than someone like Ted Cruz in 2016, born in Canada to a citizen parent and a non-citizen parent; or maybe her rather marginal polling has kept her from litigation.

Regardless, I thought it was worth noting that despite my worries that we’d continue to see a rash of "natural born citizen-related litigation, this cycle has been fairly quiet (so far!). Instead, it’s simply left to the electoral process to sort it out—which is my preference, anyway.