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.

Interstate agreement to develop a regional supply chain for personal protective equipment may violate Compact Clause without congressional consent

Previously, I expressed skepticism that interstate regional “pacts” or “agreements” to coordinate reopening the economy required congressional consent under the Compact Clause. Those agreements seemed like little more than information-sharing groups and conscious parallelism. Indeed, watching how states have behaved, they’ve continued to act primarily state-by-state, even as members of these “regional” groups.

But there’s a new proposal out of the northeast:

Amid the ongoing COVID-19 pandemic, Delaware Governor John Carney, New York Governor Andrew M. Cuomo, New Jersey Governor Phil Murphy, Connecticut Governor Ned Lamont, Pennsylvania Governor Tom Wolf, Rhode Island Governor Gina Raimondo and Massachusetts Governor Charlie Baker today announced a joint multi-state agreement to develop a regional supply chain for personal protective equipment, other medical equipment and testing.

While the states will continue to partner with the federal government during this global and national public health crisis, they will also work together to identify the entire region’s needs for these products, aggregate demand among the states, reduce costs and stabilize the supply chain. The states will also coordinate policies regarding the inventory of PPE each state’s health care infrastructure should have to be prepared for a possible second wave of COVID-19. The states will also coordinate policies on what supplies local governments should have on hand for their First Responders, and if any requirements regarding PPE for the non-for-profit and private sector are needed.

The states will then seek to identify suppliers within the country, region or state who can scale to meet the demand of the entire region over the next three months. The goal of this approach is to decrease the potential for disruptions in the supply chain for PPE and medical equipment, including sanitizer and ventilators, and testing, and promote regional economic development.

…

Governor Cuomo said, “The COVID-19 pandemic created a mad scramble for medical equipment across the entire nation – there was competition among states, private entities and the federal government and we were driving up the prices of these critical resources. As a state and as a nation we can’t go through that again. We’re going to form a regional state purchasing consortium with our seven northeast partner states to increase our market power when we’re buying supplies and help us actually get the equipment at a better price.

The devil is in the details of an agreement like this, and, of course, press releases are perilously short on details. But this agreement starts to look like the kind of thing the Compact Clause cares about.

Start with some common definitions of a “compact,” “mutual declarations [that may be] reasonably treated as made upon mutual considerations,” or “reciprocity.” Here, it sounds like these states are agreeing to stop bidding individually for medical equipment and to start bidding collectively. They agree to divide the equipment based upon their internal criteria they share and pay based upon internal criteria they share.

It’s also expressly designed to leverage these states at the expense of other states, and even potentially at the expense of the federal government. That is, these governors (and I only quote Governor Andrew Cuomo, but you can read others) expressly want to increase the ability of this consortium to succeed at the expense of other states and the federal government.

Now, to be frank, my analysis may mean little—the Compact Clause has been construed exceedingly narrowly in the last two hundred years, and one is hard-pressed to find many cases where an interstate compact has been deemed to require congressional consent. And, of course, even if I’m right, Congress can always consent to the compact. But this strikes me as precisely the type of factionalism the Compact Clause is designed to prevent: if the problem is an ineffective federal coordination or excessive state squabbling, groups of states can’t team up to cure the problem for themselves at the expense of others.

Still, I wouldn’t be surprised to see some non-compacting states challenge the decisions of these compacting states. What appears to be an attempt to improve state relationships among some may well worsen those relationships among others.

Finally, one nice thing about this blog is an opportunity to throw out a possibility like this and open up for feedback. Are there purchasing power arrangements between states, like this one, that exist? Or, even better, that have faced litigation in the past? Professor James Coleman suggested that the Regional Greenhouse Gas Initiative, which includes bidding and auctions, is a possibility, and one that doesn’t have congressional consent. If anyone has others, feel free to post in the comments (which may take some time to appear).

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.

Can states enter into interstate compacts to coordinate reopening society as the coronavirus outbreak wanes?

The lead paragraph from this Associated Press story sets up the issue:

Governors in the Northeast and along the West Coast on Monday announced separate state compacts to coordinate one of their biggest challenges in the weeks to come: How to begin reopening society amid the coronavirus pandemic.

Compare that with the Compact Clause of the United States Constitution:

No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State, or with a foreign Power . . . .

Importantly I don’t think the story accurately conveys what these states are doing—at least, not yet. And how states go about their business affects how we think about whether the Compact Clause is implicated.

Let’s see the West Coast “agreement,” as articulated with key phrases:

COVID-19 has preyed upon our interconnectedness. In the coming weeks, the West Coast will flip the script on COVID-19 – with our states acting in close coordination and collaboration to ensure the virus can never spread wildly in our communities.

We are announcing that California, Oregon and Washington have agreed to work together on a shared approach for reopening our economies – one that identifies clear indicators for communities to restart public life and business. 

While each state is building a state-specific plan, our states have agreed to the following principles as we build out a West Coast framework . . .

In the coming days the governors, their staff and health officials will continue conversations about this regional pact to recovery.

This is a “shared approach,” but one with “state-specific” plans guided by “shared principles.” At the end, it’s described as a “regional pact.”

Here’s the Northeast “multi-state council”:

Recognizing that their states have one integrated regional economy, New York Governor Andrew M. Cuomo, New Jersey Governor Phil Murphy, Connecticut Governor Ned Lamont, Pennsylvania Governor Tom Wolf, Delaware Governor John Carney and Rhode Island Governor Gina Raimondo today announced the creation of a multi-state council to restore the economy and get people back to work. This announcement builds on the states' ongoing regional approach to combatting the COVID-19 pandemic. 

The coordinating group - comprised of one health expert, one economic development expert and the respective Chief of Staff from each state -- will work together to develop a fully integrated regional framework to gradually lift the states' stay at home orders while minimizing the risk of increased spread of the virus.

Again, the emphasis is consulting together and an agreement to work with one another in a shared framework.

UPDATE 4/16: Here’s a new plan from the Midwest:

Today, we are announcing that Michigan, Ohio, Wisconsin, Minnesota, Illinois, Indiana, and Kentucky will work in close coordination to reopen our economies in a way that prioritizes our workers’ health.

…

Phasing in sectors of our economy will be most effective when we work together as a region. This doesn’t mean our economy will reopen all at once, or that every state will take the same steps at the same time. But close coordination will ensure we get this right.

Note that here the states emphasize that states may not act in lock-step and that regions may respond differently.

While the Associated Press piece (and other commentary) styles these as “interstate compacts,” it’s not clear they even meet that standard—at least, as understood from a legal use of the term “interstate compacts.” The Supreme Court has (I think, rightly) recognized that a “compact” turns on, say, some sort of consideration, including “mutual declarations [that may be] reasonably treated as made upon mutual considerations,” or some sort of “reciprocity.” That is, coordinated behavior or activity is not a “compact,” if there’s nothing binding on the states that are a part of it. If it is just a good-will gesture, unilateral actions that states may withdraw from at any time, it’s not a “compact.” And that means the Compact Clause is not implicated.

That’s why these should not be described (or, at least, not yet described!) as “interstate compacts.” Indeed, the West Coast language that refers to it as a “regional pact” is an overstatement. (I also think there’s not much difference between “agreement” and “compact”—at least, for these purposes there’s not a distinction, which likely turns more on the subject matter than the enforceability of it; and the Supreme Court has—but, probably wrongly—conflated the terms.)

But suppose these states do advance a framework that requires some obligations on their parts, some reciprocity, some coordinated activity that the other states have a legal right to enforce.

In my view, from an original understanding of the Constitution, such an agreement would need the consent of Congress.

But, even then, the Supreme Court has narrowed the kinds of compacts that require congressional consent. In 1893, in Virginia v. Tennessee, the court had a broader view:

The terms "agreement" or "compact" taken by themselves are sufficiently comprehensive to embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects; to those to which the United States can have no possible objection or have any interest in interfering with, as well as to those which may tend to increase and build up the political influence of the contracting States, so as to encroach upon or impair the supremacy of the United States or interfere with their rightful management of particular subjects placed under their entire control.

By 1978, in U.S. Steel Corp. v. Multistate Tax Commission, the Court focused on whether any shift in political power exists:

But the test is whether the Compact enhances state power quoad the National Government. This pact does not purport to authorize the member States to exercise any powers they could not exercise in its absence.

The same focus was in place in 1985, in Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System:

We do not see how the statutes in question either enhance the political power of the New England States at the expense of other States or have an "impact on our federal structure."

A unanimous Supreme Court decision in 2018, Texas v. New Mexico, provided the latest, small summary of the Compact Clause:

Our analysis begins with the Constitution. Its Compact Clause provides that “[n]o State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State.” Art. I, § 10, cl. 3. Congress's approval serves to “prevent any compact or agreement between any two States, which might affect injuriously the interests of the others.” Florida v. Georgia (1855). It also ensures that the Legislature can “check any infringement of the rights of the national government.” 3 J. Story, Commentaries on the Constitution of the United States § 1397 (1833) (in subsequent editions, § 1403). So, for example, if a proposed interstate agreement might lead to friction with a foreign country or injure the interests of another region of our own, Congress may withhold its approval. But once Congress gives its consent, a compact between States—like any other federal statute—becomes the law of the land. Texas v. New Mexico (1983).

There’s pending litigation about whether California’s “cap and trade” agreement with Quebec flunks the Compact Clause and requires congressional consent. If a court looks at agreements that are sufficient enough to provide a financial inducement to remain in them, then perhaps the agreement rises to the level of a “compact.”

On the whole, however, I’m sympathetic to the argument that, at least as presently understood, the “regional councils” are not “agreements” or “compacts” for purposes of the Compact Clause—which means that Congress does not need to consent to their existence. If they grow more powerful, they might then fall into the Supreme Court’s examination of whether they encroach on federal or state political power. If, for instance, the states band together to defy a constitutionally-permissible executive order or federal statute that might otherwise supersede state activity (although that seems like a more challenging hypothetical to develop in the first place), then it might be the kind of thing that would require congressional consent. Their actions might also adversely affect non-compacting states, and those non-compacting states might raise a claim against them. Or, perhaps federal courts would be willing to revisit precedent on this matter and require consent for any compacts that bind the signing states.

For now, however, it remains, I think, hypothetical. We’ll see what these agreements end up purporting to do and whether they start to rise to the level of more than coordinated activity.

UPDATE 4/17: This post has been lightly revised for clarity.

There are big barriers to "canceling" or even postponing the 2020 presidential election

There is a lot of consternation about elections in light of Covid-19 and concerns about safety and security in polling places. Louisiana announced that it is postponing its presidential primary from April 4 to June 20. Georgia is pushing back its presidential primary from March 24 to May 19. This has led to a lot of concerns—and, I think, some more conspiracy theory-oriented scenarios—about “postponing” the 2020 presidential election.

It’s probably useful to work backwards from the dates the terms of office begin: terms for Congress begin January 3 and the terms for President and Vice President begin January 20. Those are hard-wired into the Twentieth Amendment of the Constitution.

If a president “shall not have been chosen” by Inauguration Day, it falls to the Vice President. If not the Vice President, then to the Speaker of the House, the president pro tempore of the Senate, the Secretary of State, and on down the line of succession.

So if there is a delayed election, regardless of when the election takes place, President Trump and Vice President Pence have their terms of office end January 20, 2021. And if there is a delayed election, regardless of when the election takes place, the entire House of Representatives and 1/3 of the United States Senate end their terms on January 3, 2021. In that exceedingly unlikely scenario (no President, Vice President, or Speaker), the president pro tempore chosen out of the remaining Senate would be acting President.

So let’s kick it back farther. Election Day is set by federal statute for the Tuesday after the first Monday in November. That’s a federal law. So for that date to be changed, you’d need Congress to alter it, and the president to sign that law. It would not be up to particular states. And, keep in mind, Congress would look to that hard January 3 date when the terms of office of most members of Congress would end. So any movement on the date, I think, would actually look to move it earlier, not later. Or, Congress could establish greater early voting opportunities like vote by mail rules for federal elections. States could do the same—as long as they keep November 3, 2020 in mind.

States could also adjust their state primary elections for Congress, which range from March to September. They are free to adjust those—again, keeping in mind the November date.

For presidential primaries, the rules are even fuzzier. The primaries are largely party-dictated affairs. The Democratic and Republican National Committees have some rules about when primaries can be held. No state except Iowa, New Hampshire, Nevada, or South Carolina can hold a contest before March. (Recall the Democratic fight over Michigan and Florida in 2008.) States can’t have primaries in past mid-June.

So the Democratic Party will decide whether to grant an exception for Louisiana’s late date. Both parties apparently don’t oppose the choice to move the primaries. The parties decide whether or not to count delegates chosen, because the parties dictate the rules. State laws indicate when parties have to file the names of presidential and vice presidential candidates to appear on the ballot, typically late summer; but the rest of the process remains largely with the parties.

Georgia’s decision to postpone will merge its presidential primary with other federal and state primaries, so it’s a rather efficient decision. At the same time, the decision to postpone a primary may be a fairly convenient decision here—it is far less convenient to think about postponing a general election. And given the constitutional barriers defining the end of terms of office, coupled with federal statutes dictating when federal elections must take place, it is unlikely those dates will yield, regardless of what barriers arise ahead.

Special thanks to Professor Brian Kalt for helping me think through pieces of this.

Yes, Donald Trump Jr. & Ivanka Trump are (likely) "natural born citizens"

A recent survey from Axios revealed that Donald Trump Jr. and Ivanka Trump, two of President Donald Trump’s children, are among the leading candidates among Republican voters for president in 2024.

Sure, a silly survey so early and likely reflects more about name and brand recognition than anything else. But it also got me to think about an under-examined question: are they eligible to serve as President of the United States?

Don Jr. was born in 1977 in New York, and Ivanka in 1981. Their dad is, obviously, a citizen.

But their mother is Ivana Trump, a Czech immigrant to the United States who did not become an American citizen until 1988.

Most would argue that Don Jr. and Ivanka are still eligible even if their mother was not a citizen at the time of birth—birth on American soil would be sufficient, as would birth to a citizen parent. That said, there has been litigation challenging even such statuses (wrongheaded as, I think, it might be), but a cool-down in the most recent election cycle. And there are some who question “birthright citizenship” more broadly (but more who do not question it).

I am far from an expert on the Natural Born Citizen Clause—I have my inclinations and a rough understanding of the legal arguments surrounding it. I’ve been much more interested in whether the political process or the judiciary is the better place to resolve these disputes—for me, the political process is far more preferable to sort out these difficulties.

That said, it may be interesting to see whether legal challenge arise in the event one or both chooses to run for president in the future, in 2024 or beyond. And it may be a good reason to amend the Constitution to simplify the inquiry—instead of “natural born citizen,” perhaps we simply want a citizen who’s been one for a long period of time.

Can a state constitution contrain a state legislature when the legislature ratifies a federal constitutional amendment?

That’s the question a recent opinion from the Attorney General of Kansas seeks to answer.

In 1974, the Kansas Constitution was amended to require 2/3 consent of each house of the state legislature to ratify any federal constitutional amendment. The federal Constitution, however, simply provides that an amendment is ratified by “three fourths” of the “Legislatures” of the several states. It places no conditions on how a state legislature goes about ratifying it.

The opinion concludes that the “the Kansas Constitution cannot impose a supermajority voting requirement on the Legislature’s decision to ratify a proposed amendment.” This ties to an understanding that the power to ratify is reserved to the state legislature under the federal Constitution, and the state constitution cannot add conditions to the state legislature’s political process when it is acting pursuant to the federal Constitution. Each legislature chooses its own threshold.

This is, of course, not what the Supreme Court concluded in a different context of the term “legislature.” In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court concluded that the term “legislature” in the Elections Clause did not give the state legislature the power to ignore a state constitutional amendment about how redistricting takes place. Adopting a “functional” understanding of the term “legislature,” in this context, at least, the legislature was bound by the state constitution.

I think the Kansas Attorney General opinion is likely right—and, I think, it may well be consistent with the Court’s approach in Arizona State Legislature. For more, dig into the opinion!

California Supreme Court unanimously finds presidential tax return disclosure requirement violates state constitution

A federal district court already found that California’s new law requiring presidential primary candidates to disclose their tax returns as a condition of ballot access violated several provisions of the United States Constitution. The case is being appealed to the Ninth Circuit, and there was little rush to have the law take effect for 2020.

Now, the California Supreme Court has weighed in with a unanimous decision finding that the state constitution precludes the tax disclosure requirement, too. The California Constitution includes a provision enacted by initiative that requires “recognized” candidates to appear on the primary ballot; this tax return disclosure requirement, the court reasoned, exceeded the legislature’s power. (Justice Mariano-Florentino Cuéllar wrote a brief concurring opinion to indicate his concerns about corruption.)

While my recent draft article emphasized only one facet of these ballot access disputes—whether such conditions are legitimate “manner” restrictions or whether they exceed the state’s power under the Elections Clause and Presidential Electors Clause—I noted that state constitutional law might be an alternative basis for these claims. And here’s one such example.