Ian Millhiser, Legal Expert and Author, Misunderstands the U.S. Supreme Court’s Last Decision about Presidential Electors

Posted on by May 6, 2020
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Ian Millhiser, a prominent author and legal expert, has this essay at Vox about the upcoming U.S. Supreme Court hearing in the presidential elector cases from Washington and Colorado.

His analysis is flawed because he says that in 1952,. the U.S. Supreme Court decided in Ray v Blair that states could require candidates for presidential elector to take an oath that they would vote for the presidential candidate of their party if they were elected.  This is not true.  Ray v Blair only decided that the Democratic Party of Alabama could bar candidates from their primary unless they took such an oath.  Back then, the Alabama Democratic Party chose its presidential elector candidates in a primary.  No state currently does that.  In all states, presidential elector candidates are nominated by their own party’s state convention or other state meeting (except that in Pennsylvania, the nominees for president choose their own presidential elector candidates).

In 1952 in Alabama, the people taking the oath were not yet presidential electors.  They weren’t even nominees for presidential elector.  They were only individuals running in a party primary, hoping to win the primary and then become candidates for presidential elector.  Ray v Blair was a decision about the rights of political parties to control who gets on their own primary ballot, not a decision about whether states can tell presidential electors what to do.

Article Explains How Health Crisis Has Hobbled Chances for Illinois Initiatives

Posted on by May 6, 2020
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This article explains that an initiative in Illinois to create a nonpartisan redistricting commission has stalled, due to the health crisis.  However, the article does not say that it is still possible a U.S. District Court in Chicago will give the organizers of initiatives some relief.  The case is Morgan v White, n.d., 1:20cv-2189.  U.S. District Court Judge Rebecca Pallmeyer initially denied relief, but since then she has signaled that she is reconsidering.  A hearing will be held Thursday, May 7.

Sixth Circuit Agrees that Michigan Primary Petition This Year Is Unconstitutional, But Says U.S. District Court Judge Should Have Let State Write a New Requirement

Posted on by May 5, 2020
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On May 5, the Sixth Circuit issued an order in Esshaki v Whitmer, 20-1336, the case over whether the Michigan primary petition requirements were too severe this year due to the health crisis.  The panel agreed that the original requirement was too difficult to be constitutional for 2020.  But it said that the U.S. District Court should merely have ruled that it was too difficult, and let the state decide what to replace it with.

The majority decision is not signed, but was authored by either Judge Alice M. Batchelder, a Bush Sr. appointee; or Judge John K. Bush, a Trump appointee.  The third judge, Jane B. Stranch, an Obama appointee, felt the U.S. District Court acted appropriately when he set a new petition standard of 50% of the original requirement.  Judge Stranch’s dissent is longer than the majority order, and cites many instances when the U.S. Supreme Court approved lower court orders that imposed specific policies (to be in place temporarily) when the old law was invalidated.

U.S. District Court Orders New York to Proceed With Presidential Primary

Posted on by May 5, 2020
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On May 5, U.S. District Court Judge Analisa Torres, an Obama appointee, ordered the New York State Board of Elections to proceed with the Democratic presidential primary.  Yang v Kellner, s.d., 1:20cv-3325.  The lawsuit had been filed by Andrew Yang, some of his candidates for delegate to the Democratic National Convention, and some voters who want to vote for him, even though he has suspended his campaign.

The decision points out that delegates have other duties than just choosing a presidential nominee.  They help write the party platform and can and do interact with the presumptive presidential nominee to influence him or her on the coming campaign.  See page 21 of the decision.

New York’s government said it cancelled the primary because of the health crisis.  The decision says that reason is not convincing, because in most counties, there was going to be a primary (for office other than president) on the same day, June 23, anyway.  Thanks to Political Wire for this news.