On February 13, the Eighth Circuit heard Abdurrahman v Dayton, 16-4551. The issue is the Minnesota law saying if a presidential elector votes in the electoral college for someone who did not get the most popular votes, then he or she is deemed to have resigned, and will be replaced by the other electors.

The plaintiff, a Democratic presidential elector in 2016, voted for Bernie Sanders for president in the electoral college meeting in December. The Secretary of State then removed him as an elector, so his electoral vote was never counted. The U.S. District Court then ruled in favor of the state and dismissed the case, before any proceedings over the constitutionality of the law had occurred. The Eighth Circuit must now decide whether the case was dismissed too soon.

The U.S. Supreme Court has said that ballot access cases are not moot just because the election is over, because there isn’t time to decide many cases between the filing of the lawsuit and the date of the election. The main question is whether cases over disobedient presidential electors are also exempt from the mootness problem. The state argued that the elector should have filed his lawsuit in August, when the Democratic Party appointed him an elector. The state also says that election law cases that are capable of repetition, and therefore not moot, only cover instances when the plaintiff expects to personally suffer the same problem in the future. However, in Richardson v Ramirez, 418 US 24, the U.S. Supreme Court said on page 35 that in Moore v Ogilvie (the first ballot access case that got an exception from mootness) the plaintiffs did not allege they were expecting to run again. No one mentioned Moore v Ogilvie in the Eighth Circuit oral argument.

Because the entire 30 minutes was devoted to procedure, there wasn’t any substantive discussion of the constitutional rights of presidential electors, which of course would have been far more interesting. Listen to the 30-minute oral argument at this link. The Judges are Lavenski Smith (a Bush Jr. appointee), Diana E. Murphy (a Clinton appointee), and Steven Colloton (a Bush Jr. appointee).

Independent voters in South Dakota are already permitted to vote in Democratic and Libertarian primaries. That is because those two parties want independents to vote in their primaries. On February 13, a bill to allow independents to vote in the Republican and Constitution Party primaries was defeated on the House floor. HB 1305 had a Republican sponsor, Representative Drew Dennert, but most Republican House members voted against it. See this story. Thanks to Shawn Griffiths for the link.

The Democratic National Committee will be obliged to persuade a federal court that it should be allowed to withhold evidence of its hack in 2016 by Russians. See this Vanity Fair story. Thanks to Political Wire for the link.