Table of Contents
Articles
Residual State Power To Regulate Presidential Qualifications in the Wake of Trump v. Anderson and Moore v. Harper
Vikram David Amar
In Trump v. Anderson, the Supreme Court refused to permit states to implement Section 3 of the Fourteenth Amendment and disqualify candidates for federal office under that provision. Yet under Article II of the Constitution, states as entities enjoy wide latitude to pick electors who in turn select Presidents. This latitude has been confirmed by the Court in Chiafalo v. Washington and (implicitly) in Moore v. Harper, and is in no way constrained by U.S. Term Limits, Inc. v. Thornton (insofar as the latter deals specifically with congressional elections, a matter over which states do not enjoy the same discretion they enjoy concerning presidential selection). Because, this Article argues, the Anderson ruling, however dubious, does nothing to cut back on state power to exclude, as a matter of state law, persons who have engaged in rebellion from being considered for a state’s support in a presidential contest, states can accomplish via state law what the Court said Colorado could not do under Section 3. This reality in turn makes the Anderson ruling, and its rationale (emphasizing the need for uniformity among states), even more unconvincing.
History, Tradition, and Voter Registration
Joshua A. Douglas
History and tradition are dominating the Supreme Court, which has invoked history and tradition to curtail some rights, such as abortion, while using it to elevate other rights, such as the right to bear arms. Might history and tradition also cause the Court to strike down new restrictions on the right to vote, even if doing so would cut against the current Court’s narrow protection of voting rights? Disputes over voter registration restrictions will pose that very question. Many states have recently implemented onerous rules on voter registration, especially targeting third-party voter registration organizations. Congress is also debating the SAVE Act, which would force states to require documentary proof of citizenship when registering voters for federal elections. As this Article shows, the Court should strike down these rules under a faithful interpretation of the history and tradition of voter registration.
“The Real Preference of Voters”: Madison’s Idea of a Top Three Election and the Present Necessity of Reform
Edward B. Foley
The core principle of Madisonian democracy is that the constitutional separation of powers provides the best hope of safeguarding liberty, the rule of law, and the republic itself from the risk of tyranny. In 1823, Madison specifically embraced the electoral principles of the French theoretician Marquis de Condorcet. Recognizing Madison’s embrace of Condorcet’s principles is important today to restore the separation of powers that have been failed to protect the republic from the current authoritarian threat it faces. A Condorcet-based electoral system would have avoided the election of a demagogue as President. As important, or even more so, the use of Condorcet-based elections for the Senate would have enabled the Senate to perform its essential separation-of-powers functions of, first, disqualifying an impeached President whose reelection is a danger of despotism and, second, refusing to confirm irresponsible cabinet nominations.
Voter Harassment and the Limits of State and Federal Power
Ellen D. Katz
Acts of voter harassment are often difficult to prevent. One longstanding, albeit underused, tool for addressing such harassment is found in section 11(b) of the Voting Rights Act (VRA). Continued use of the provision, however, is threatened by recent decisions restricting private enforcement of the VRA. This Essay examines one challenge to such enforcement, exploring the linkage between section 11(b)’s prohibition on voter intimidation and the enforcement of constitutional voting guarantees, on which private enforcement of the provision presently depends. It invites consideration of the idea that this linkage is sufficient and private enforcement is appropriate because section 11(b) provides a remedy when state and local efforts to operate equitable voting processes fall short.
Coups and Punishment in the Constitutional Order
Anthony Michael Kreis
This Essay examines the historical and constitutional foundations of an anti-coup principle in the United States, emphasizing how state-level prosecutions deter and can appropriately punish election subversion. Tracing its roots to English constitutional history and the Glorious Revolution, the anti-coup principle rejects arbitrary executive power. It underscores the need for accountability to sustain democratic norms against presidential self-coup conspiracies.
Comments by a Cantankerous Crank on “Constitutional Theory,” the Supreme Court, and the Legal Academy
Sanford Levinson
By so relentlessly focusing on the handiwork of the Supreme Court, our students too often gain a distorted view of both “constitutional theory” and “American democracy.”
The Regulation of Presidential Elections
Lori A. Ringhand
There is an unresolved dispute lingering just beneath the surface of a host of laws regulating our elections: Does Congress have power under Articles I and II of the Constitution to legislate the nuts-and-bolts rules governing presidential elections? The issue exists because of a textual gap in congressional authority. The Supreme Court has upheld congressional authority to regulate presidential elections under the original Constitution in several contexts, but the issue has gained new salience in recent years because of a long running dispute in Arizona about whether the state can require voter registrants to present documentary proof of citizenship, contrary to federal law. This Essay approaches this issue through a new lens.
“Quite Literally, Our Job”: Moore v. Harper and the Fragility of Judicial Federalism
Jane S. Schacter
The Supreme Court’s decision in Moore v. Harper categorically rejected sweeping claims by proponents of the independent state legislature theory (ISLT) that would have eliminated the historical role of judicial review by state courts in election law cases concerning federal elections. Yet, the Court added a cryptic caveat to the end of the opinion, noting that state courts must remain within the bounds of “ordinary judicial review” (OJR). This Essay will review what state courts have said about Moore since the case was decided. It will also explore how advocates of the ISLT have attempted in these cases to equate OJR with a generic version of judicial activism. This Essay argues that claims about so-called activism and restraint are utterly common in state court litigation and cannot coherently mark the boundaries of what is ordinary. It argues that this reading of OJR is not only conceptually problematic and incompatible with judicial federalism, but opens the door to relitigating Moore in ways inconsistent with the decision’s strong affirmation of judicial review by state courts.
Ranked-List Proportional Representation
Nicholas O. Stephanopoulos
American jurisdictions are considering switching to proportional representation (PR) in volumes unseen for a hundred years. But the forms of PR currently being debated have drawbacks. The most (domestically) prominent of these, proportional ranked-choice voting (P-RCV), is both vulnerable to vote leakage among parties and cognitively challenging for voters. Another salient system, open-list proportional representation (OLPR), risks underrepresenting minority voters. This Essay therefore introduces a new form of PR—ranked-list proportional representation (RLPR)—that promises to alleviate these concerns.
State Executive Branches Under Moore v. Harper
Quinn Yeargain
The independent state legislature theory (ISLT), if embraced by the U.S. Supreme Court, could have radically altered the relationship between the federal and state governments. The Court largely—but not totally—rejected ISLT in Moore v. Harper, but it also embraced the idea that state judiciaries could not “arrogate to themselves the power vested in state legislatures to regulate federal elections. The simplistic framework laid out in Moore is unhelpful in identifying how such disputes would be resolved, and that any alleged conflicts between state executive action and the U.S. Constitution’s delegation to state legislatures are wrought with difficulty. State executive branches radically differ from the executive branch established by the Constitution, and if the Court were to import federal assumptions about separated powers into the Elections Clause context, it would override nearly two hundred and fifty years of independent state constitutional development. Accordingly, to the extent that Moore applies in these contexts at all, I argue that the Court ought to exercise significant deference to state-specific practices, customs, and constitutional histories.