Marty Lederman, a law professor and former Deputy Assistant Attorney General of the United States, has this interesting analysis of Trump v Anderson, the March 4 decision of the U.S. Supreme Court on Colorado ballot access for persons accused of insurrection.
On March 4, U.S. District Court Judge Eli J. Richardson, a Trump appointee, ruled that the plaintiffs lack standing in Ashe v Hargett, m.d., 3:23cv-1256. This is the lawsuit that challenges a new Tennessee law that signs must be posted at the polls, on primary day, warning voters that they must be a “bona fide” member of a party in order to choose that party’s primary ballot.
Since 1972, Tennessee law has required that only “bona fide” members of the party may vote in a party’s primary. It is only recently that the law says signs must be posted at the polls, reminding voters about the the 1972 law. Ever since the 1972 restriction was passed, no one has ever been prosecuted. Probably no one will ever have standing unless the potential plaintiff is prosecuted some day. Here is the opinion.
Tennessee does not have registration by party, which means that “bona fide” member of a party is an exceedingly vague idea.
On March 4, U.S. District Court Judge John A. Woodcock, a Bush Jr. appointee, refused to let petitioners for Robert F. Kennedy, Jr. petition at the polls on March 5, the presidential primary date in Maine. Here is the opinion. The judge relied heavily on the Secretary of State’s argument that Kennedy is free to have his petitioners work at the polls on June 11, when Maine holds a primary for non-presidential office. Team Kennedy v Bellows, 1:24cv-52.
Other petitioners will be allowed on March 5. The difference is that the other petitions don’t concern presidential candidates.
The lawsuit also challenges the law that says presidential elector candidates must be registeed voters, but the decision postpones settling that.
On March 4, the U.S. Supreme Court released its opinion in Trump v Anderson, 23-719. This is the Colorado ballot access case involving former President Donald Trump. Read it here. It is only 13 pages long and is probbly written by the Chief Justice, although it is unsigned. Justice Amy Comey Barrett wrote a one-page concurrence, and there is a six-page concurrence by Justices Sotomayor, Kagan, and Jackson.
All nine justices agree that states cannot enforce Section Three of the Fourteenth Amendment. The majority opinion says that only Congress can enforce it. The four concurrences agree that states cannot enforce Section Three, but they say there was no need for the majority to also hold that courts can’t enforce it either.
Nothing in the opinions discusses state power to enforce other qualifications to hold the presidency or to run for president. Nothing in the opinions mentions the authority of political parties over their own nomination process. Nothing is said about whether Trump engaged in insurrection. There is a general philosophy expressed that it is undesirable for states to adjudicate section three because then there would be a patchwork effect. “State-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that ‘the President…represents all the voters of the Nation.'”
Page twelve says, “The ‘patchwork’ would likely result from state enforcement would ‘sever the link that the Framers found so cricical between the National Government and the people of the United States’ as a whole.'” The opinion goes on to criticize a situation in which a presidential candidate is on the ballot in some states but not all of them. This part of the opinion will help to invalidate severe ballot access restrictions that apply to presidential candidates, aside from Section Three matters. Page two of the three-justice concurrence also expresses this point.
As a result of the decision, which relies partly on Anderson v Celebrezze and partly on U.S. Term Limits v Thornton, the influence of both of those decisions is enhanced. It is likely that this opinion dooms any effort by supporters of term limits for Congress to get that 1995 ruling overturned, even though it was 5-4 back in 1995.
On February 22, 2024, the Nevada Policy Research Institute published a paper titled “Efficient, Timely and Reliable, A Framework for Election Law in Nevada. It is written by Walter Olson, Senior Fellow at the Cato Institute.
I found its content on election administration interesting, even though the report is minorly marred by several typos.
Nevada has recently had a poor performance regarding timely reporting of election results, and Olson points out that there are tradeoffs and tensions between competing goals of an election system.
Among his recommendations are:
#1: Nevada should complete its transition from “county-led voter registration to a so-called top-down system with extensive statewide direction”…”with a single constantly updated statewide uniform database overseen by the secretary of state.”
#2: An accurate voter database should be a top priority, with investment in “multiple frequently refreshed high-quality data sources and proactively reaching out to households and addresses following evidence of moves and other relevant changes.”
#3: “Nevada should stay in the Electronic Registration and Information Center, and work to improve and refine its capabilities.”
#4: “To keep voters informed of the progress of their ballots, Nevada should finish the job of adopting strong ballot tracking and notification.”
#5: In addition to their signature, voters should have to write their driver’s license number or last four digits of their Social Security Number on their mail-in ballots.
#6: Nevada should invest in making ballot drop boxes more secure and in employee protocols for handling ballots, and
#7: End the practice of ballot harvesting.
Here is the Nevada Policy report on Nevada election administration.
