Clearly, reformers have no shortage of ideas to repair the system, but none will end the ground war. The sole best idea is to engage in a long-term struggle for a constitutional amendment affirming a universal right to vote that is not skewed by the eighteenth-century logic of the Electoral College or the monstrous process of partisan gerrymandering. One person, one vote, equally weighted.
Obviously, a constitutional amendment is an extraordinary difficult thing. But the intellectual tide is turning. Legal scholar Aziz Rana has recently shown, as the subtitle of his book The Constitutional Bind argues, “how Americans came to idolize a document that fails them.” Jill Lepore, who directs the Amend Project, has recently looked at reviving the amendment process in her new book We the People. Law professor Richard L. Hasen put forth plans for A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy. Anyone following sites such as the Democracy Docket, which burns the midnight oil detailing the endless ground campaigns to preserve voting rights, cannot help but conclude the system is teetering on the edge. The National Constitution Center, committed to nonpartisan civic education, has launched its Article V: Amending the Constitution initiative. In short, it is easy to feel the intellectual ground shifting on constitutional change, even if subtly. While Republicans are on the war path about voter corruption, perhaps there is even a bipartisan space for a carefully crafted campaign that unites people on the core value of democracy. The divide now is less about red versus blue, than liberal versus non-liberal.
Donald Sherman, Sacha Heymann, and Deborah Perlin have posted this draft on SSRN (forthcoming, Kentucky Law Review). Here is the abstract:
The Twenty-Second Amendment provides that “[n]o person shall be elected to the office of the President more than twice.” Although this prohibition on unlimited presidential tenure has traditionally been widely accepted in popular culture, in public discourse and by senior government leaders including prior presidents, it has received renewed interest and attention as allies of President Trump openly suggest that he should seek a third term, with some commentators suggesting that President Trump could bypass the Twenty-Second Amendment altogether, including by running as vice president and then assuming the presidency through the line of succession.
This article rejects this extreme minority view by reviewing the congressional debates surrounding the passage of the Twenty-Second Amendment in both the United States House of Representatives and the United States Senate. It proceeds in three parts. First, it provides a descriptive account of the amendment’s passage during the 80th Congress and identifies and discusses the differences between various proposed versions of the amendment. Then, it analyzes the substantive arguments made by supporters in favor of term limits and by opponents against them. In so doing, the article concludes that congressional supporters of term limits were overwhelmingly motivated by the four-term presidency of Franklin Roosevelt and the rise of dictatorship in Europe prior to World War II and therefore primarily situated term limits as a bulwark against authoritarianism and prolonged concentration of executive power in the United States. Lastly, the article uses an analysis of the Twenty-Second Amendment’s Transition Clause, other provisions in the Constitution, and the congressional debates over the amendment to reject the idea that the amendment’s textual change from “hold” in earlier drafts to “elected” in the final version somehow meant or permits a term limited former president to return to office through non-elective means. Taken together, the article demonstrates that the available evidence about the congressional debates leading to the Twenty-Second Amendment’s passage points to the conclusion that it is, indeed, ironclad.
I put up a short post explaining why the current redistricting wars illustrate the risk that the National Popular Vote Compact (NPV) will come unraveled in the circumstances in which it might actually matter. Not surprisingly, John Koza, an architect of the NPV, has posted a response. I feel a need to respond briefly to clear up misunderstandings. I’ll use John’s headings to respond (and I won’t respond further, since this is enough on this issue):
POST-ELECTION RISK: John writes: “Pildes’ conjectured scenario is based on the theory that a state legislature has the power, after Election Day, to change the state’s existing law specifying the manner of appointing presidential electors. ” I don’t know how he could so badly misread my post, since I explicitly say: “I’m discussing one or more states doing this before their voters have voted, when they see the handwriting on the wall.”
PRE-ELECTION RISK: John rightly points out that it’s important to think about the comparative risks of different scenarios. But he thinks there just as much risk that a legislature today would deny its state’s voters the right to select electors at all as there is that a legislature would abandon the NPV in order to respect the preferences of its state’s voters. I don’t think these risks are symmetrical in the least. Legislatures voting to honor the strong partisan preferences of their voters for President is entirely different from legislatures voting to deny their constituents a vote in the election — something that has never happened since all states moved to the popular vote for President.
John also puts great weight on the requirement in the NPV that no state can withdraw after July 20th. I am skeptical that this requirement could be legally enforced as a practical matter. First, this is not a federal compact, but a contract between states, so enforcement would most likely have to come through the state courts. Second, a state court would not have jurisdiction to enjoin the actions of state officials in another state.
Third, perhaps one signatory state could try to bring an original jurisdiction action in the Supreme Court against another state. But the compact is badly drafted: it creates no cause of action to sue to enforce it, does not specify who might have standing to enforce it, and the like. Given the Supreme Court’s reluctance to read implied causes of action into legislation, I think it highly unlikely the Court would do so here. Since states have signed the NPV under its current language, it could not be amended without going back to all those states for renewed consent. Fourth, state or federal courts (if there is a way to get the issues litigated there) might find these issues to be non-justiciable political questions. Fifth, I’m not aware of any Supreme Court case that has enforced the Contracts Clause in state v. state litigation when Congress has not approved the Compact. All this inevitable legal uncertainty, no matter how these various issues might be resolved, simply illustrates the risk of a chaotic dynamic when a state decides to exit the NPV — and because I’m skeptical the July 20th date can be enforced, states could do this until early voting starts.
ACTUAL PRE-ELECTION RISK IN THE REAL WORLD: I agree with John it might be difficult in certain circumstances for states to decide whether there might be an EC-popular vote difference in outcomes. To me, this is John’s best point. But it relies on a gamble: that we won’t know in October of an election year which candidate the EC is likely to favor.
But that depends somewhat on how biased the EC is toward one party or the other, and as this graph shows, that bias can change over time and also be much more significant at some times than others. Blue states are willing to enter the NPV right now because we know the EC currently is biased toward Rs. But what happens if and when that changes?
In plans shared first with NBC News, ACLU officials said they will train and deploy more than 100 paid staff members and more than 3,000 volunteer leaders to encourage people to vote and to ensure voter access while monitoring ballot counting and certification.
Those people will coordinate thousands of other volunteers. The ACLU said it has already trained 5,000 people on election work and plans to train 5,000 more.
Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin — all critical battleground states — are expected to receive the bulk of the investment.
Widespread monitoring of the canvass and certification is new for the organization, said Deidre Schifeling, the ACLU’s chief political and advocacy officer.
“We are in a really unprecedented situation here with this administration’s abuses of power and concerted attempts to suppress voters, to gerrymander, to basically co-opt our democratic system,” Schifeling said.
“Where it is clear that the administration is undermining the legitimacy of our democratic process and trying to co-opt it or sabotage it, we will be ready to react to that in a variety of ways,” she added, noting that they could include litigation, protests or public information campaigns.
A State cannot extend the term of a U.S. Senator, but this could be an interesting story to keep an eye on. Kansas Senator Roger Marshall is up for re-election in 2026.
A Republican-conceived law usurping Democratic Gov. Laura Kelly’s discretion when filling vacancies in certain Kansas statewide elective offices could complicate the competitive race for U.S. Senate.
Candidates and political observers wonder whether Kansas Republicans could attempt to avoid holding an election for U.S. Senate this year by having the incumbent, Republican Roger Marshall, resign from office to take a position with President Donald Trump’s administration. The power play would raise constitutional questions.
The catalyst for this fear is a 2025 law requiring vacancies for U.S. Senate, state treasurer and state insurance commissioner to be filled by Kansas governors by choosing from a list of finalists endorsed by the full Legislature or a 12-person GOP-controlled legislative committee. A governor of Kansas in the past could immediately and unilaterally choose a person to temporarily fill these jobs pending an election, but the new law limited the governor’s options to members of the former officeholder’s party.
In addition, the same state law says if the vacancy were created after May 1 in an even-number year, such as 2026, the appointed replacement wouldn’t go before voters in an election until “two years following the year in which such vacancy occurs.” A simple reading of this Kansas statute — in isolation from the U.S. Constitution — suggests appointees chosen to fill these jobs this fall would avoid facing voters until 2028.
The Supreme Court is still considering NRSC v. FEC, considering whether the limits on party spending in coordination with candidates violates the First Amendment.
Everyone I know who has looked at this case, including me, expects the NRSC to win the case, and for the Supreme Court to overrule Colorado I, a case decided in the early 2000s during a period when the Court was more more deferential to Congress’s imposition of reasonable campaign finance limits.
The surprise is that it has taken so long to get the opinion. The case was argued in December, and almost all the other December cases have been decided. See the SCOTUSBlog Statistics page. Four Justices haven’t written in December, Roberts, Alito, Kavanaugh and Sotomayor. I expect that Roberts will write the opinion in the other pending case, Slaughter, on the president’s power to fire people at independent federal agencies. Sotomayor is a likely dissenter in NRSC, so that leaves Alito or Kavanaugh.
The question is how far either or both of them might go in NRSC. One could get a narrow ruling, overturning Colorado I and doing little else. Or the Court could go bigger—much bigger. For example, the Court could call into question that part of McConnell v. FEC, still standing, limiting soft money contributions to parties. Or the Court could ratchet up the level of scrutiny applicable to all contribution limit challenges. That could call into question the limits on individual contributions directly to candidates.
As with Louisiana v. Callais, the winner was a lot easier to pick given the ideological composition of the Court than the velocity (and in Alito’s case, the ferocity).
Next chance for opinions is this Thursday. With 12 more opinions to go, I expect we will see one or two more decision days, likely heading into next week.
Nebraska Examiner:
The Republican National Committee and two Nebraska voters have filed a lawsuit against Nebraska over a part of state election law that was meant to implement a 2009 federal election law.
The lawsuit, which names Secretary of State… Continue reading
Introduction from order granting summary judgment in LWV v. DHS case:
This case implicates two fundamental rights that protect Americans from government overreach: the right to privacy and the right to vote. In the past year, several federal agencies have… Continue reading
Rick Hasen links to an Atlantic article that describes the intense infighting and litigation between Maricopa County’s Recorder and its Board of Supervisors over which entity has authority over various aspects of election administration in this important county. The lower… Continue reading
Politico:
A Republican-linked group was the sole funded of two pop-up super PACs that spent more than $4.3 million across a swath of Democratic congressional primaries to support candidates seen as less electable.
Democrats had speculated that the two groups,… Continue reading
CNN:
The Trump administration is threatening to withhold tens of millions of dollars in federal homeland security funds from states unless they adopt a sweeping set of election changes, according to multiple sources and internal documents obtained by CNN.
The… Continue reading
