The Regulation of Presidential Elections

The independent state legislature theory provides that state legislatures are not constrained by their respective state constitutions in exercising the authority that the U.S. Constitution delegates to states over federal elections. In its most extreme form, the doctrine permits state legislatures, in overseeing the mechanics of federal elections, to disregard state court interpretations of state constitutions. Scholars have offered a number of criticisms of this doctrine, noting that it runs counter to the Founding Generation’s concerns about the lawlessness of state legislatures; is contrary to historical practice at the Founding; and undermines the constitutional structure in which the more democratically accountable Congress, rather than the states, is vested with final say over federal elections.
 This Article contributes to this growing literature by pointing to the constraints, centered in the constitutional text and history, that limit the ability of legislatures to disregard their state constitutions. Specifically, the Electors Clause of Article II, Section 1 provides, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress . . . .” This text explicitly raises the question: Who is the “state” on behalf of which the legislature deploys power?
 Using this language as its jumping off point, this Article argues that the “state” referenced in Article II, Section 1 refers to its citizens, whose preferences are conveyed to the state legislature through the state’s electorate and in the state constitution. Within a decade of the Founding, the selection of officials by the state’s electorate became central to the theory of republicanism underlying the Guarantee Clause of Article IV, which predicated the legitimacy of government on majority support. By the adoption of the Twelfth Amendment, which changed the structure of presidential elections, political elites viewed republican government as requiring that state legislatures and, to a lesser extent, federal officials, be accountable to the people who elected them, accountability that prevented state legislatures from exercising their authority over federal elections in blatant disregard of the people’s wishes.
 The Article concludes that the independent state legislature theory, particularly in its strongest iteration, runs counter to the democratizing effect that the Twelfth Amendment was intended to have on presidential elections. The theory allows the state legislature to disregard the preferences of the people at a juncture in which they are exercising the oversight and accountability at the core of our system of republicanism: during the election of federal officials. Any version of the doctrine, if adopted, has to respect majoritarian preferences.

eroG .v hsuB and Its Disguises: Freeing Bush v. Gore from Its Hall of Mirrors

Is the United States polarized? In order to address this question, this dissertation explores three dimensions of political polarization. Three related, but independent, essays on political polarization provide information on questions concerning polarization, First, the studies on polarization themselves appear to be polarized. Chapter 2 focused on reviewing past studies on polarization. Still, one side argues that American citizens are severely polarized, while the other side argues that polarization is an illusion (Abramowitz and Saunders 2008; Abramowitz 2010; Fiorina 2014, 2017; Mason 2016). A sample is carefully chosen from the sociological and political science SCIMAGO rankings. Since almost all measures of polarization used in earlier works can be classified as a single type of polarization, all measures of polarization are coded into four types: issue consistency, issue divergence, affective polarization, and perceived polarization. Based on the systematic review and meta-analysis in Chapter 2, no strong evidence supports the idea of a "polarized America." One interesting finding is that the majority of the studies that produced significant results used ANES data, with a secondary group using the GSS. While there are many differences between the two surveys, the key distinction is the timing of the field surveys. Second, Chapter 3 begins with the premise that political interests will be deeply related to political action, and so will political polarization. For example, recent studies present evidence that political interest can vary depending on the political context (Prior and Bougher 2018). Political interest also ebbs and flows with politically salient events, especially federal elections. In Chapter 3, the focus is whether polarization is a stable characteristic of the electorate, like political interest or partisanship. Previous scholarship emphasizes the "situational" characteristics of interest for change and adaptation to a new environment as opposed to the "static" characteristics of interest (Featherman et al. 1994; Prior and Bougher 2018). Therefore, the research question centers on political polarization, as under the same presumption, the degree of political polarization within the general public is influenced by political interest and electoral circumstance. Using data from two nationally representative surveys, the ANES and the GSS, the level of issue polarization increases similarly in both sets of data, but the patterns of sorting are different. The level of sorting in the ANES fluctuates, whereas instability shows a more dramatic increase in the GSS. In contrast, the overall level of sorting in the ANES is higher than in the GSS. Thus, the difference in the level of polarization between two surveys comes from the timing of the surveys. While the ANES is typically conducted from August to December in the midst of the election campaign, the GSS is typically conducted from February to May. Since the GSS and the ANES surveys do not conduct surveys in non-election years, it is difficult to isolate the effect of elections on the level of polarization. The Pew Research Center conducts annual political polls. Using Pew political surveys, I investigated the difference in the level of polarization between election years and non-election years and between presidential elections and midterm elections. The findings demonstrate that the timing of a survey has a significant effect on the level of polarization (i.e., sorting) in general. This finding suggests that elections are a key determinant of the intensity of the level of polarization, partisan strength, and political views. The level of polarization, like measures of political interest and party affiliation, is not stable. There are fluctuations in the level of polarization that are associated with points in time within the electoral cycle, and citizens are more likely to show more polarized attitudes as a function of the proximity of an election. Chapter 4 focused on the level of polarization at the state level. Studies of polarization have received more attention at the national level due to the difficulty of collecting enough samples. The CCES provides enough samples of between 30,000 and 50,000 individuals every year to make it possible to examine the state level of polarization. In particular, Chapter 4 investigates the relationship between state swing in a presidential election and state polarization. The fourth chapter examined the potential relationship between the phenomenon of state swing or state competitiveness in presidential elections and the state's level of polarization. By concentrating on sorting, the connection between polarization at the state level and swing states, including those that are competitive in presidential elections, is analyzed. Swing states should have more polarization than safe states like California and Texas. Using an independent sample t-test, the degree of polarization between swing states and safe states is significantly different. The effects of polarization on the potential for state swing, or the likelihood that the state will be competitive in presidential elections, are examined. Sorting has a sizable magnitude and significant impact on the probability that a state will change its support in presidential elections, using a logistic model. States are more likely to change their support in presidential elections as the degree of polarization within those states rises or falls. The impact of partisan composition within a state is one of the chapter's more intriguing findings. The findings show that a more balanced partisan composition within a state increases the likelihood of switching support from one party candidate to another in presidential elections and makes the state's presidential elections more competitive. In addition, possible connections might exist between a swing state and a person's degree of polarization. Using the same four categories of swing states, there might be differences in which groups of citizens are more likely to be polarized than others, depending on the state in which they live and the circumstances surrounding the state election. Based on an OLS model, mixed results were obtained regarding the prediction of the impact of the state's electoral circumstances (competition, TV ad spending, and campaign events) and the swing experience on the degree of polarization. The three essays on political polarization in the United States suggest several implications. First, based on meta-analysis in chapters 2 and 3, I concluded that Americans are still not polarized as Fiorina (2018) recently contended. While some types of polarization are, arguably, on the rise and pervasive in the mass public, scholarly findings still do not reach a consensus. It is too early to conclude that the United States is polarized. One of the most challenging aspects of previous and recent research on polarization is that it is almost entirely based on survey data collected in the midst of presidential or midterm elections (i.e., the ANES, the GSS). The campaign season accentuates partisan polarization for the average citizen in a way other times do not. The findings in Chapter 3 follow this notion and suggest that the level of polarization among the mass public can be influenced by external factors such as electoral circumstances. Future research should evaluate the reasons behind each type of polarization and how the political circumstances and the survey instrument may influence measures of political polarization. Also, it should be examined how these conditions affect different political outcomes. Second, scholars should be careful when evaluating polarization at the sub-national level, as shown in Chapter 4. It is easy to conflate the concepts of geographical polarization and state polarization. There are two distinct ideas here. This dissertation shed some light on the distinction between state-level and geographic polarization. It also contributed to clarifying the difference between the state-level concept of polarization and the national one. In conclusion, polarization is a complex concept that demands careful discussion. This dissertation presents several original perspectives and ideas that will be helpful for future studies on political polarization in the United States and other democratic societies.

The Constitutional Case for State Power to Eliminate Faithless Electors

In preparation for the 2012 presidential election, members of the Pennsylvania GOP have been considering changing the way the state awards its electoral votes. Under the current system, the candidate who wins the greatest number of votes statewide receives all twenty of the state's votes in the Electoral College. In recent years, heavy Democratic voting in urban areas such as Philadelphia and Pittsburgh has offset Republican victories in rural parts of the state. In order to build on their strength in the less-populated areas, Republicans are considering having Pennsylvania award electors based on a district method. While this approach is technically constitutional, political commentators have been quick to condemn the proposal as unethical and potentially dangerous.1 This is not, however, the first time a political party has attempted to change election laws to their advantage. The manipulation of election law dates back to the first elections under the Constitution.Concern over the lack of representation in the British Parliament was one of the major reasons the colonists decided to declare independence.2 The Revolution established the principle of actual representation—that all regions of a state or the nation ought to be represented in the legislature, and that federal representation ought to be apportioned by population in the House of Representatives—but there were still many questions about what that meant in practice. As the country went through the process of establishing a government, representation remained a divisive subject. Specifically, there was disagreement over how to elect a federal representative and whether the electoral votes a state cast for president ought to be divided by district or given completely to the statewide winner.Historians who have discussed representation and election law in the early Republic tend to focus on ideology. The standard narrative is that Federalists supported at-large elections because only the most qualified, well-known candidates had a chance at winning. Additionally, large election districts ensured that no single interest group had too much influence. Anti-Federalists, and later Republicans, advocated district elections to ensure that representatives remained tied to local interests. Whereas Federalists wanted the “best” men to serve in office, Anti-Federalists and Republicans believed a representative should be one of the people.3 There is certainly truth to this account, but a straight ideological explanation fails to explain why Pennsylvania changed the way it elected representatives four times in the first four congressional elections even though Federalists held a majority in the state legislature the entire time.The federal Constitution left it to each state to select a method for electing representatives. In 1788 the Pennsylvania legislature passed a law providing for at-large elections for the commonwealth's allotted eight seats in the House of Representatives. Each voter wrote the names of eight different men on a piece of paper, and the eight men receiving the greatest number of votes were elected. Although Federalists remained in control of the state legislature, an election law passed in 1791 divided the state into districts for elections to the Second Congress. Then, in 1792, the legislature narrowly voted to return to at-large elections. Finally, in 1794, the state settled on a district system. While Federalists and Anti-Federalists/Republicans clearly had ideological disagreements, a review of the debates surrounding the framing of election laws reveals that political strategy played a decisive role in the decision to select a particular mode of electing representatives. Strategically, Federalists favored the at-large system because, while they had a numerical advantage over their opponents, most of their supporters were concentrated in the more populous eastern part of the state, in and around Philadelphia. Anti-Federalists, on the other hand, favored a district system because their supporters were dispersed throughout the state. Federalists could easily dominate at-large elections, but a state divided into election districts could lead to the election of a number of western Anti-Federalists.In addition to illuminating the ways in which partisans manipulated election laws to get the upper hand, a close study of the change between at-large and district elections sheds light on the development of political parties in Pennsylvania. Parties emerged from the crucible of ongoing electoral experimentation, geographic tensions, and shifting attitudes toward the federal government. The process of switching back and forth between at-large and district elections forced politicians to develop communication networks throughout the state, hone methods of nomination, and devise new ways of campaigning.After losing the majority of seats in the first elections, opponents of the Federalists began to organize. Their efforts led to the legislature dividing the state into districts for the second congressional elections and the defeat of a few Federalists. Due to confusion over the number of seats allotted to Pennsylvania in 1792, the state returned to the at-large system for the third congressional elections. Despite preferring districts, Republicans used this opportunity to dramatically increase intrastate cooperation and improve their methods of campaigning. This party building resulted in a number of gains throughout the state. The realization that they were not equipped to compete with the Republican organization led Federalists to abandon at-large elections in 1794. There is, therefore, a clear relationship between the state's election laws and the rise of political parties.4The fault lines that would divide Federalists from Anti-Federalists and later Republicans date back to long-standing geographic and socioeconomic tensions. On the eve of ratification, Pennsylvania was a socially and economically diverse state. With a population of 28,522 according to the federal census of 1790, Philadelphia was the second-largest city in the country and home to a diverse group of merchants, manufacturers, laborers, artisans, and a few slaves.5 It was a center of both economic and intellectual life and very much a part of the larger Atlantic community. The eastern counties of Philadelphia, Bucks, Chester, Berks, York, and Lancaster tended to vote with the city. Overall, the eastern parts of the state were ethnically diverse, with the largest groups being English and Germans. Those who lived west of the Alleghenies tended to live in isolated, rural areas. Despite encompassing more than half of the state's size, only 75,000 people, less than 20 percent total population, resided in the western counties of Allegheny, Fayette, Westmoreland, and Washington. Most westerners engaged in agricultural pursuits, although a few of the larger towns had attorneys and artisans as well. Populated primarily with recent immigrants, the two largest ethnicities were Scots-Irish and English.6The United States experienced a painful economic downturn at the end of the War for Independence, and Pennsylvanians from all walks of life were in desperate need of relief. Many farms in the west were devastated during the war; the price of land bottomed out, leaving westerners on the brink of ruin. The east suffered as well, just for different reasons. A surge in British imports in 1783 and 1784 drove down the price of goods, crippling many merchants. Laborers and artisans found themselves out of work for the first time in years. Rising taxes threatened to break people throughout the state.7These conditions help explain some of the disagreements over the ratification of the federal Constitution. Although not a monolithic group, Philadelphia merchants believed the Constitution offered a solution to their economic woes. Similarly, many of the urban laborers and artisans favored ratification as a way to bring about fiscal stability. A strong central government could ensure the collection of taxes and provide protection against foreign markets. Many in the west disagreed. The proposed Constitution, they believed, only favored the merchants and the rich. Farmers and small merchants feared the imposition of heavier taxes and worried that a stronger federal government would weaken state and local institutions. Although patches of Federalism existed in the west, the vast majority of westerners sided with the Anti-Federalists.8With the majority of Philadelphia and its environs supporting the new Constitution, Federalists clearly had the upper hand. Most of the state's wealth and nearly two-thirds of the population resided east of the Alleghenies. Even with this advantage, Federalists were not willing to leave anything to chance. During the ratification debates, Pennsylvania Federalists proved well organized and easily outmaneuvered their opponents. In fact, the majority of the debate surrounding the Constitution took place after the state convention had ratified the document.9 Federalists moved with such precision and speed that Anti-Federalists, whose supporters were dispersed throughout the west, were simply unable to mount an effective opposition in time. Anti-Federalist leaders in Philadelphia did their best to stall ratification (including hiding to prevent the calling of a quorum in the convention), but on December 12, 1787, Pennsylvania became the second state to ratify the federal Constitution.10After the necessary nine states ratified the Constitution, both sides turned their focus to the first federal elections. Pennsylvania Federalists had the momentum, but they did not take success for granted. In the late summer of 1788, Thomas Fitzsimons, a well-known Federalist and wealthy merchant from Philadelphia, decided that his party needed to seize the initiative. He wrote to a friend on August 20 that “the representation of this state in the new Congress will in a great measure depend upon the plan that may be adopted for choosing them. A good mode might now, I believe, be obtained, which in another Assembly would not be practicable.”11 Federalists outnumbered the Anti-Federalists thirty-seven to twenty-seven in the 1787–88 General Assembly.12 Federalists, therefore, had the numbers to pass an at-large election law that favored the more populous, Federalist, eastern part of the state.In the Assembly, the Federalist-sponsored bill providing for at-large elections came up for discussion on September 24, 1788. William Findley, a leading Anti-Federalist from Westmoreland County, led a weak effort to promote district elections, arguing that they were the only way “that eight men could have a particular knowledge of the local and common interests throughout the state.” He saw it as “almost impossible in so large a state as Pennsylvania, to have an actual representation in Congress.” James McLene, an Anti-Federalist from Franklin County, was the only other member to express support for the district method, but both McLene and Findley acknowledged that such a bill had no chance of getting passed. Findley did, however, manage to ensure that the language of the at-large bill did not apply to future elections. Clearly he viewed this debate as the first battle in a longer war. After Findley withdrew his measure, the at-large representation bill passed without a recorded vote.13 Elections were set for November 2, 1788.At-large elections for representatives were not part of the national Federalist program. Instead, Federalists supported the mode of election most likely to ensure a Federalist majority. Pennsylvania Federalists supported at-large elections because they had a numerical but not geographic advantage.14 In South Carolina the situation was reversed. Low country Federalists supported district elections because of the large number of Anti-Federalists residing in the backcountry.15 Likewise, although Pennsylvania Anti-Federalists supported district elections, their counterparts in other states fought for at-large elections. Though ideology certainly mattered, it appeared that modes of election were often contingent on political conditions.Both Pennsylvania Federalists and Anti-Federalists held nominating conventions in preparation for the first federal elections. These coalitions were not parties in the modern sense of the word. In 1788 Federalists and Anti-Federalists had organized for one purpose—either to support or oppose the federal Constitution. The first federal elections were an extension of this conflict. Although the Constitution had been adopted, Anti-Federalists held out hope that members of the First Congress would adopt structural amendments to weaken the central government. For this purpose, a group of Anti-Federalists from across the state met at Harrisburg in early September 1788. Although the primary motivation was to draft a set of amendments, the men also agreed on an eight-man ticket to run statewide in the upcoming election. The convention occurred a month before the election law passed, suggesting that Anti-Federalists knew beforehand that the state would not be divided into districts. The ticket included a mixture of loyal Anti-Federalists, moderates, and two Federalist-leaning Germans.16 Four of the candidates came from the eastern counties and three resided in the west. Designed to appeal to a broad base, this eclectic group of candidates hailed from a variety of different social and economic backgrounds.At first, Federalists responded to the Harrisburg convention with outrage. According to one Federalist writer, the goal of “the Antifederal conclave” in creating a ticket had been to “save all the trouble of free elections in the future.”17 Federalists claimed the Anti-Federalists were attempting to deprive the people of Pennsylvania the right to vote for whomever they pleased. Despite their public outcries, some Federalist leaders were concerned that the Harrisburg ticket would prove successful and decided to hold their own convention in Lancaster on November 3, 1788. The ticket Federalists adopted at Lancaster was less varied than the Harrisburg ticket. Half of the men nominated by the Federalists resided in or near Philadelphia, and only one lived in the west. Because the vast majority of their supporters lived in the eastern parts of the state, Federalists had little incentive to nominate men from the west.Geographic voting in the first election led to a decisive victory for Pennsylvania Federalists. The Federalists' statewide election strategy worked perfectly. Even with members of the Harrisburg ticket outpolling the Federalists almost six to one in some western areas, only two of the state's eight seats went to Anti-Federalists.18 Federalist majorities in the heavily populated eastern counties more than offset whatever advantage Anti-Federalists had in the west. The two Anti-Federalists elected, Daniel Hiester and J. Peter Muhlenberg, were of German heritage and likely owed their victory to the tendency of Pennsylvania Germans to vote as an ethnic bloc. William Findley later recalled that, in effect, the 1788 election had been “carried wholly by one side of the state.”19Anti-Federalists did not put much effort into the first federal election.20 During the campaign season, backcountry leaders focused more on the upcoming fight over the state Constitution than on the election of federal congressmen.21 Besides the Harrisburg convention, no evidence exists that the Anti-Federalists made any concerted attempts to organize. Because the majority of their support was in the west and rural areas, without at least some organization the Anti-Federalists simply could not compete with the Federalists.Because the election law of 1788 applied solely to that year, the second set of federal elections could not occur without new legislation. But even as other states took steps to conduct elections in 1790, the Pennsylvania legislature was mired in debates over a new state Constitution and showed no signs that they were thinking about federal elections. With elected officials distracted, the debate over the means of electing representatives moved into the public sphere. Hoping to generate a discussion, William Irvine had penned a series of articles under the pseudonym “Juniata Man” beginning in January of 1790.22 A native of Ireland, Irvine moved to Cumberland County in 1764. Elected to the Confederation Congress in 1786, he allied himself with the conservatives and emerging Federalists. Although he had endorsed ratification of the federal Constitution, Irvine became disenchanted with the Federalist administration during the 1790s and drifted toward the Republican camp.23Irvine's political journey is reflective of a larger phenomenon. The new national government had inherited a fiscal disaster. During the Revolutionary War, the government lacked specie and had to pay soldiers in promissory notes. These notes quickly depreciated in the years following the Treaty of Paris. Poor veterans sold their notes to speculators for a fraction of their face value. The majority of the national debt was therefore owned by a small number of people. States also carried significant debt from the Revolutionary War. In 1791 Secretary of the Treasury Alexander Hamilton proposed that the federal government fund the notes at their original value, assume state debts, create a national bank, and levy excise and custom duties. The plan clearly benefited speculators, many of whom lived in the east, at the expense of veterans. Assumption of state debts and the establishment of a national bank pointed to a centralized, powerful national government. The direct taxes Hamilton proposed on distilled spirits fell particularly hard on poor western farmers who were still struggling to recover from the downturn after the war. The end result was that Hamilton's plan drove many moderates and lukewarm Federalists to the opposition and convinced the former Anti-Federalists of the need to organize.24In the “Juniata Man” letters, Irvine warned that the next Congress was about to “fund an immense public debt” and “will have a power to impose direct taxes.” The next congressional delegation, he insisted, must consist of men who would have the people's interest in mind. He argued that district elections were the best way to achieve this goal. Irvine blamed much of the state's problems on the men of Philadelphia who had been “in the habit of nomination at least, if not appointing, every officer of note.” In the last “Juniata Man” letter, which appeared on April 17, 1790, Irvine lashed out at the men in the east. “Let them rant, rave, or assume an air of gravity,” he sneered. “It is high time for the people of the middle and back countries to take themselves out of leading the of Philadelphia, Bucks, and part of Chester, the they have made in not them to put a into the of an election some politicians took steps to for the next elections. many former Anti-Federalists to a of 1788. Federalist Thomas to in early that the next elections “will be in districts and in that I it that the of be without a In members of an emerging Republican had out a August had that “the people to with a high less than a total of the in and that in future the have but one On September 2, 1790, the state adopted its new Constitution, potentially leaving time to hold elections. the Assembly the next without an election law and the new House of did not the second congressional elections December of 1790, after most states had held their the legislature in a of westerners and former Anti-Federalists narrowly in a district bill in the Pennsylvania House by a vote of to The bill included a that districts to elect men who resided in other parts of the three Federalists sided with the and just two Republicans voted against its In addition to a the voting also showed a clear geographic with the representatives from the west the bill and from the east party lines interests often In the the bill passed nine to with all the from Federalists in the the elections were held in districts, party needed to hold a state nominating were in a with a few the a situation that led to declare that “in to the that and the congressional of 1791 was and This may be the just at the actual elections, but the over election laws are the elections are just as and as any of the second congressional elections were not as for the Federalists as had but the opposition did the eight Federalists Republicans and one or was of the Federalists victories came in the eastern part of the state. Despite Republicans a few eastern the only Republicans elected came from the western part of the state. Daniel Hiester in the of Berks, and of the second congressional election to a few the state was still with the eastern voting Federalist and western areas with former Anti-Federalists and emerging The also that opponents of the Federalists had to organize. the first election, western leaders William Findley put more time and into the second congressional elections. Overall, the elections that most Pennsylvanians remained Federalists. Republicans had their strength in the west, but the populated eastern areas were still in the Federalist It would take more than a change in election law for the Republicans to a majority of the congressional the second congressional elections were held so only a time remained before the Pennsylvania legislature needed to draft an election law for the third congressional elections. But before they could they needed to out how many representatives Pennsylvania would be to Congress. The Constitution a census to help the of federal representatives the census the federal Congress much of the of the of representatives. The census that Pennsylvania had a population of it the second-largest state House and passed a bill on 1792, that would divide the total population of the country by and the representatives based on their population, with one representative for every people. This would have into congressional seats for Pennsylvania. under the that this bill would the Pennsylvania legislature discussion of a new election On a Republican representative from County, made a to divide the state into districts. representative from the west and all but one Republican voted in but it was not Republicans and supporters of the district method had seats in the Pennsylvania House and was by two votes. The state to be toward at-large elections became even more on April a proposed federal of at-large elections upon this and forced a vote on the election law that, with the number of representatives still at-large elections were the only The vote on the bill providing for an at-large election in the Pennsylvania House was to In the Republicans and made a to pass a law district elections. But the of Republican from the district resulted in an that was by the of Philadelphia, who supported at-large elections meant that Republicans would have to increase their intrastate cooperation with the that eastern Federalists would select the majority of Republicans set out to build an at-large campaign William William Findley, and in with Philadelphia Republicans James and Alexander In addition to the of letters, western and eastern of the of the Franklin of the General and of the Republicans with of to their to the These communication networks proved in the process of party of the surrounding the election of from methods of nominating Most Federalists advocated a whose members were to as while the majority of Republicans, or favored out a to their supporters for for Federalists the method because it was more a select few with could to take time work and to Republicans, on the other hand, were an effort to create a The could people who would be from as the build communication networks that could be in future different means of candidates emerged following a strategy on which both parties that were the way to support in Philadelphia. The to that the people of Philadelphia were well of the of federal 1792, Republicans in the House to develop an election In the they made a appeal to artisans, and The was set for in order to their the time the more than two people had into the House it the largest public in Pennsylvania Thomas a Federalist and of the Pennsylvania was to the the The group agreed to a series of that established a to draft and a to of the sense of the people in different parts of the state, the to be nominated as of Congress.” Those to draft the included Republicans and and Federalists and one of the state's On August 3, of the were The goal was a of the whom of every and in every part of the state, to be This was a from weak effort in responded by their own the following The was to at a time Republicans claimed was to prevent and from In Republicans the city with and that on their supporters to leave work Republicans turned out that the Federalists were unable to votes to elect a As the more and more Republicans through the they would be a group of Federalists to the western part of the a few from the and to select Federalist as the Republicans quickly on and the Federalists. A nearly and in the the and were order was both parties withdrew from the A that was with of a more were clearly that Republicans were equipped to so Federalists simply that there would be a nominating in Lancaster on September nine of the state's twenty counties and the city of

This essay provides an initial assessment of competing claims about the impact of super PACs and also offers early insights on what super PACs are doing in this election cycle and what impact it may have on the 2012 presidential election and future elections.

The Electors Clause and the Governor's Veto

Supreme Court Appointments in Presidential Election YearsThe Case of John Hessin Clarke Jonathan L. Entin (bio) When Supreme Court Justice Antonin Scalia died unexpectedly on February 13, 2016, Republicans in the US Senate immediately made clear that they would not consider any nominee proposed by President Barack Obama. Because 2016 was a presidential election year, Majority Leader Mitch McConnell declared within hours of Scalia’s passing: “The American people should have a voice in the selection of their next Supreme Court justice.”1 True to their word, the GOP-controlled Senate refused to take any action on Obama’s nomination of Chief Judge Merrick B. Garland of the US Court of Appeals for the District of Columbia Circuit as Justice Scalia’s successor. This inaction provoked widespread debate, but the vacancy remained open for President Donald J. Trump to appoint Judge Neil M. Gorsuch, of the US Court of Appeals for the Tenth Circuit, to Scalia’s seat.2 The refusal to act on Judge Garland’s nomination marked the first time in 150 years that the Senate had completely stonewalled a Supreme Court [End Page 30] nominee.3 But this does not mean that the confirmation process used to be genteel or straightforward. Since World War II, the only two Supreme Court appointments that had occurred during a presidential election cycle illustrated the fraught nature of such matters. In October 1956, shortly after the opening of the Court’s new term, President Dwight D. Eisenhower nominated New Jersey Supreme Court Justice William J. Brennan Jr. to succeed Justice Sherman Minton, who had retired for health reasons. Eisenhower chose Brennan in an effort to appeal to Catholic voters who traditionally supported Democrats.4 The president acted quickly to put Brennan on the Court, giving him a recess appointment that meant that he was able to hear cases before the Senate got a chance to vote on his confirmation. This posed two potential problems. First, because the recess appointment came before the election, Brennan might not have received a permanent appointment had Eisenhower lost.5 Second, even if Eisenhower won (as he of course did), the recess appointment could undermine Brennan’s independence on the bench because the Senate might retaliate against him for controversial decisions, or, more subtly, Brennan might at least subconsciously decide cases with that possibility in mind.6 In June 1968, Chief Justice Earl Warren announced his retirement. The timing of the announcement was seen as a thinly veiled attempt to prevent the presumptive Republican presidential nominee, Richard M. Nixon, from [End Page 31] appointing his successor. Warren and Nixon disliked each other from their days in Republican politics in their home state of California, and Nixon had strongly criticized the Warren Court’s liberal rulings on criminal law and procedure.7 President Lyndon B. Johnson, who was not seeking reelection, nominated Justice Abe Fortas as the new chief justice, but Republicans and southern Democrats in the Senate filibustered the nomination, and Fortas eventually withdrew.8 Despite the small number of postwar Supreme Court appointments in presidential election years, the prospect of such appointments fueled interbranch tensions. The Brennan appointment played a significant role in the Senate’s adoption of a resolution opposing recess appointments except in “unusual circumstances” to avoid “a demonstrable breakdown in the administration of the Court’s business.”9 Although the resolution expressed only the sense of the Senate, the timing of this move was hardly coincidental: the vote occurred on August 29, 1960, just two days before Congress adjourned to concentrate on the general election, so it served as at least a symbolic warning against any last-minute recess appointments.10 Similarly, as Republicans often pointed out during the Garland stalemate, Vice President Joseph R. Biden, while chairing the Senate Judiciary Committee, had advised President George H. W. Bush not to try to push through a nominee while he was running for reelection in 1992.11 This warning also seemed like no idle threat, coming only a few years after the controversy over the failed nomination of Judge Robert H. Bork and the tumultuous confirmation process for Justice Clarence Thomas. It was not always thus. In 1932, a politically vulnerable President...

Buttered Bagels

Education Reform and the Political Safeguards of Federalism

Previous articleNext article FreeReading Regents and the Political Significance of LawCristina M. RodríguezCristina M. Rodríguez Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreWhen the Supreme Court handed down its decision in Department of Homeland Security v. Regents of the University of California, in June 2020, advocates celebrated. DACA—an acronym that no longer requires definition—lived to see another day.1 Newspaper headlines marked the decision as a decisive rebuff of the Trump administration’s efforts to end the Obama-era program that shielded so-called Dreamers from deportation while authorizing them to work in the United States.2 Initiated in 2012, the Deferred Action for Childhood Arrivals program had survived almost four years of a presidential administration overtly hostile to immigrants and immigration—a government bent on unraveling as much of the administrative and political legacy of its immediate predecessors as possible.3 The Supreme Court largely affirmed the Ninth Circuit’s holding that efforts by the Department of Homeland Security (DHS) to rescind DACA were arbitrary and capricious and therefore invalid, sending DHS back to the drawing board to accomplish its objectives.4 With the 2020 presidential election less than five months away and the very real possibility of regime change in the air, the decision seemed decisive. The Supreme Court had saved DACA, at least for the time being.On the other side of the presidential election, we can now say that the Dreamers and their lawyers succeeded in using the courts to run out the clock on one of the more high-profile efforts of the Trump presidency. This success calls for an explanation. The original legal theory of DACA was predicated on its discretionary and therefore defeasible character. The government justified DACA as a series of individual acts of prosecutorial discretion, defined as the inherent discretion law enforcement officials possess to forbear from enforcement, at their convenience, in order to prioritize enforcement resources. DACA’s founding document—a memorandum issued by the Secretary of Homeland Security—included the disclaimer standard in Executive orders and agency guidance documents: “this memorandum confers no substantive right.”5 DACA’s promise, then, lasted as long as the Executive wanted it to. The promise was durable as long as President Obama remained in office but unenforceable should the Executive branch fall into the hands of officials hostile to the program.Given the apparently weak anchor DACA provided, why was it so difficult for a new administration, whose enforcement priorities did not include categorical forbearance for Dreamers, to reorient the enforcement system in its preferred direction? A conventional answer, repeated as a description of many of the Trump administration’s stumbles across regulatory arenas, was that officials were incompetent, sloppy, and disingenuous. The myriad court opinions in the DACA rescission litigation of the Trump years, from across the country and up and down the judicial hierarchy, reflected a version of this thesis. No court concluded that DACA was required by law. All parties, including the Supreme Court, seemed to agree that an administration could end the program.6 But despite efforts to respond to the demands and criticisms of the lower courts, the Trump administration could not find its way to its desired conclusion.But if the Court has implicitly acknowledged that DACA is not legally required and expressly stated that the government has the authority to wind it down, in what sense was Regents a major victory? In this essay, I argue that Regents is not a triumph in immigration law or even a decision of immigration law; far from it, the opinion contains a roadmap to DACA’s demise. The decision’s salutary outcome for immigrants also distracts us from a more ominous turn in the Roberts Court toward a reading of the immigration laws that empowers both Congress and the President to do as they please—a reading exemplified by one of the Term’s other decisions, Department of Homeland Security v. Thuraissigiam, in which the Court rejects a Suspension Clause challenge to expedited removal proceedings.7Regents does reflect a kind of political triumph, however, not just because DACA was saved but because the Court calls attention to the profound interests its recipients have in remaining in the United States and thus to their new social status, separate and apart from their legal status. And yet, within the Regents decision itself, as well as in the legal claims made against the Trump administration, are the very tools with which courts might again stymie political change designed to advance immigrants’ rights, relying on the exacting procedural regularity championed in Regents by Chief Justice Roberts.I. The Trump Administration’s Failed RescissionChief Justice Roberts opened his opinion in 2012, at the moment of DACA’s inception. But to understand what DACA sought to achieve as a matter of administration, it is important to understand what it replaced. As most every court to have heard a DACA-related dispute has recognized, implicit in the operation of an immigration enforcement regime is the authority of Executive officials to set priorities for law enforcement agents. Those priorities can encourage agents to forbear from arresting or deporting otherwise removable non-citizens as part of a larger systemic interest in channeling resources toward removals in the government’s highest interests. Beginning in 2010, Obama-era DHS officials articulated a set of priorities in guidance documents (known as the Morton Memos) in an effort to encourage line-level officials to consider non-enforcement against certain types of individuals, including those who met the criteria that would eventually define DACA – the hundreds of thousands of non-citizens lacking immigration status who had been brought to the United States as youth.8 After two years of trying to steer the enforcement system with these exhortations, DHS officials determined that few obvious or publicly visible changes to enforcement practices had occurred. The Department’s political leadership, in conjunction with the White House, thus devised DACA to protect Dreamers from deportation. The program, adopted by what came to be known as the Napolitano memorandum, invited applications for forbearance from those who satisfied carefully drawn eligibility criteria, virtually ensuring, though not guaranteeing, protection and work authorization for Dreamers.9By the time President Donald Trump took office, more than 750,000 Dreamers had been granted DACA status,10 which provided them actual and psychological relief from removal and enabled them to enter the workforce and live as if their immigration status were immaterial. As a candidate, Donald Trump vowed to rescind DACA immediately, but in his initial months in office, President Trump himself expressed ambivalence and even reservations.11 In September 2017, however, Attorney General Jefferson Sessions sent a one-page, four-paragraph letter to Acting DHS Secretary Elaine Duke to “advise” that DHS should rescind the Napolitano memorandum initiating DACA on the ground that DACA was “an open-ended circumvention of immigration laws” and “an unconstitutional exercise of the authority of the Executive Branch.”12 The next day, in what had to have been a coordinated decision within the administration, Secretary Duke released her own memorandum terminating DACA,13 citing the Attorney General’s letter and the litigation that had called into question the legal authority for a second but now moribund Obama-era deferred action policy (Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)).14 The timing and content of each of these two administrative documents became central to the Supreme Court’s resolution of the legal question before it—whether the Trump administration’s efforts to rescind DACA had been lawful.The court case began in three different circuits, where an array of plaintiffs raised numerous substantive claims, two of which ended up before the Supreme Court: that the rescission of DACA was arbitrary and capricious in violation of the Administrative Procedure Act and that the rescission violated the Equal Protection Clause of the Constitution. In its culminating opinion, the Supreme Court first concluded that DACA did not fall into the class of non-enforcement decisions long held to be unreviewable by courts on the authority of Heckler v. Chaney.15 DACA amounted, instead, to a full-blown program for granting immigration relief and attendant benefits, justifying judicial review—review that jurisdiction-stripping provisions of the Immigration and Nationality Act (INA) also did not preclude. The Court then proceeded to hold that the rescission of DACA in its entirety was indeed inconsistent with the requirements of the APA but that none of the plaintiffs’ allegations established a “plausible” claim of racial animus under the Equal Protection Clause.But DACA was a discretionary program that the administration should have been able to undo easily, not a program that should have survived more than three years of a concerted rescission effort (assuming Trump officials’ hearts were in it). Why did a clearly permissible outcome evade the Trump administration? Though incompetence has been charged repeatedly in public commentary, the explanations offered by Chief Justice Roberts underscore that the federal courts’ conceptualization of the administration’s fault changed throughout the litigation.In his letter to Secretary Duke, Attorney General Sessions justified the rescission as legally required, in part citing the litigation risk that maintaining the program posed, given that the Fifth Circuit had invalidated President Obama’s similarly structured DAPA initiative.16 At the time, Adam Cox and I argued that the administration was hiding behind flimsy legal arguments to duck political responsibility and accountability for ending a widely popular and successful program.17 The lower courts quickly put a stop to this evasion by demanding that the Trump administration provide reasons for the rescission beyond what the courts viewed to be erroneous legal claims.18 Judge John Bates in the District for the District of Columbia actually gave the administration an opportunity to remedy the APA violation by providing the court with a more extended rationale for the rescission.19 The administration obliged with a memorandum from a new DHS Secretary, Kirstjen Nielsen, in which she purported not to disturb the Duke memorandum and its legal conclusions but added multiple policy reasons to justify the rescission.20 By elaborating on its legal reasoning and offering a policy rationale for ending DACA that could justify the rescission if the court continued to find the legal reasoning wanting—just the sort of rationale courts typically do not second-guess—the path to rescission seemed to have been cleared.And yet, at the Supreme Court, the sufficiency of the Nielsen memo went untested. In its opinion, the Court dismisses the memo’s relevance because it had been framed as an elaboration of the Duke memo and yet bore “little relationship” to the original purported basis for the agency action.21 Under hornbook administrative law, then, the Nielsen memo constituted an irrelevant post hoc rationalization. In support of this conclusion, the Court lists the familiar case law, for which the standard citation is SEC v. Chenery Corp.22, and the reasons for rejecting an elaborated justification and insisting that the agency start a new policy process or issue a new decision to invoke new reasons: that such requirements promote accountability, ensure the parties and public can respond to the agency’s authority, preserve the orderly process of review, and constrain the agency from making its reasons and therefore its policy a moving target.23Thus focused on the Duke memo, the Supreme Court offers a two-part reason for finding the rescission procedurally flawed, each part of which I consider in more detail in Part II. The first is a legal rationale not yet hit upon by the federal courts but offered by the respondents from the District of Columbia: according to the Court, the Sessions letter had concluded that DACA was unlawful because it contained the same legal defects the Fifth Circuit had found in DAPA. Because the Fifth Circuit focused its analysis on the benefits DAPA conferred (primarily eligibility for work authorization), the Secretary failed to appreciate that the Sessions letter left her with discretion to decouple the two parts of DACA and consider whether its forbearance policy standing alone, without benefits, passed legal muster.24 The second of the Court’s rationales also sounds in basic administrative law—that when it changes a policy, an agency must consider the reliance interests engendered by that policy, not because those interests are necessarily legally dispositive, but because they are always substantively relevant.25 Leaving aside the puzzlement expressed by Justice Thomas in his partial dissent—why should these reliance interests matter if some or all of the program itself was without legal foundation?—the Court gave the administration two clear assignments on remand if it hoped to continue the rescission effort.With this move, Chief Justice Roberts found a political sweet spot for someone hoping not to take sides on the merits. He did not allow the rescission to proceed, but he also avoided concluding that DACA was lawful. He thus did not close the door to an eventual gutting of DACA through elimination of the path to work authorization that made it so valuable. But whether Regents amounts to a “win” depends both on whose perspective we take and the timeframe we adopt. In the months after the decision, DACA recipients had clearly triumphed. The story’s denouement unfolded in a courtroom in the Eastern District of New York. After Regents, the government did indeed return to the drawing board. Attorney General William Barr rescinded all DOJ authorities relevant to the case, including a 2014 memorandum from the Office of Legal Counsel elaborating why the much larger DAPA program was consistent with the INA and within the Secretary’s authority.26 At DHS, Acting Secretary Chad Wolf rescinded the Nielsen and Duke memoranda and styled his own memo as beginning the process of considering DACA anew. He pledged that, while DHS conducted its fresh process, the agency would honor existing DACA grants but would no longer adjudicate new or pending applications. In his memorandum explaining these steps, Acting Secretary Wolf acknowledged the reliance interests of existing DACA holders by repeating back the Supreme Court’s articulation of those interests. But he then offered: “[w]hatever the merits of these asserted reliance interests on the maintenance of the DACA policy, they are significantly lessened, if not entirely lacking” for those who had never received deferred action in the first place.27Litigants immediately challenged this new quasi-rescission. But rather than determine if DHS had properly adhered to the procedural path cleared by the Supreme Court, Judge Nicholas Garaufis found Wolf’s appointment to have been unlawful, thus invalidating his actions as lacking authorization—a conclusion reached by numerous courts reviewing various DHS actions in the waning days of the Trump administration.28 Whether DHS could correct this structural defect and try yet again to rescind DACA became moot with the election of Joseph R. Biden to the presidency in November 2020. Biden pledged during the campaign to shore up DACA. Not long after his inauguration, he followed through by declaring his intention to “fortify” the program.29But even though the election brought the rescission saga to an end, a deeper, more speculative strain of Regents is now in play. Despite being a procedural decision on its surface and in its holdings, Chief Justice Roberts’s novel reasoning forecasts still more legal wrangling over both DACA’s validity and, more generally, the capacity of a new president to chart a different path on immigration policy.II. Immigration and the Roberts CourtRegents ensured that DACA would survive into a new administration determined to preserve it. But the decision itself is neither a victory for immigrants’ rights in a jurisprudential sense nor a particularly probative data point in a more holistic account of immigration law in the Roberts era. Most immediately, the opinion provides a roadmap to DACA’s demise by inviting litigants and judges to separate its two pillars—categorical forbearance from removal on the one hand and eligibility for work authorization and benefits tied to deferred action status on the other—and to invalidate the latter. Beyond DACA, the prospects for a jurisprudence that restrains the coercive power of the government against non-citizens grew even dimmer this Term, despite Regents. In the unrelated decision, the Roberts Court yet another challenge to the of a enforcement and removal power expressly by what to be the Court’s from its of of the INA with a for basic process This opinion much less interest from the and public than the of DACA, but it is of far to the of immigration law first to DACA through the courts is its which the Regents Court to do As DACA was an exercise of the Secretary’s enforcement of typically from judicial The so-called benefits of DACA from the decision to forbear from removal in of and administrative back that those benefits to a of deferred it that the Obama administration deferred action as the through which to provide Dreamers some relief because of these legal discretion to an established regulatory with a and process by which recipients of forbearance could for authorization documents in various of the litigation over both DACA and the Supreme Court and the lower courts have the government’s across that the are unreviewable of enforcement In Regents, the Court to Heckler v. and its holding that the decision to to the law is not to judicial because it is to agency discretion, that is not a non-enforcement By an process to who met criteria, the administration a for immigration not a non-enforcement By DACA as a program with each to legal review, the Court thus the for the government by the of what the administration to accomplish in a way that more procedural and the of judicial despite finding DACA to be the Court does not to the of its parts on the merits. the Court fault with the Secretary’s own to decouple DACA’s two and then the and of a In finding this legally to the Secretary, Roberts is the Sessions letter to Secretary Duke, as the Chief Justice himself the Secretary’s in not clearly the Roberts and legal on DACA as a But Roberts on the that DACA policy has the same legal defects that the courts as to to chart his through the In the litigation over the Fifth in v. United had determined the relevant legal question to be whether the Secretary had authority to DAPA recipients for benefits, not whether he had authority to forbear from the class of who into the In other even under letter and the of litigation risk raised by the Fifth the Secretary could have a version of DACA. And under administrative v. agency to rescind a policy must consider in its whether the of the existing might be Because forbearance was at the very of DACA, DHS to have a policy of without and the Sessions letter did not that Regents opinion thus gave the Trump administration a a to DACA and for The agency could return to the drawing find the benefits to be legally while maintaining a policy, which it then could have out if it had articulated policy reasons for this of enforcement that took into account reliance interests on which And as in what out to be the waning months of the Trump administration, Chad Wolf the rescission process to a that the Court’s before Judge Garaufis found his authority the Court’s roadmap is no longer of to the administration But it does steer litigants of for to challenge DACA’s very down a clear path that the Court Despite not DACA’s the and reasoning of the Court’s opinion are both forbearance the of work authorization and other benefits is in This in part from the on by the Chief Justice of the Fifth Circuit’s reasoning in v. United which after a lower court decision an immigration relief program not actually at issue in Regents and that did not in a Supreme Court decision on the merits. be Attorney General Sessions put the Fifth Circuit opinion at issue by to on it in his DACA letter to the But not does Chief Justice Roberts v. United States and the of DAPA into his of the of the DACA he in an extended of the Fifth Circuit’s analysis when Secretary that she had no legal discretion to continue DACA. In his of the decision, Chief Justice Roberts up making a case for the of the And by that the Secretary consider this he is at the very least that it well be legally if not legally put if the Chief Justice it that a forbearance policy the legal it would have been for to the matter back to the agency for of an to the litigation over DAPA its not to raised the categorical forbearance it same legal Justice Thomas in his Regents opinion from the APA in which he Congress has not categorical to the removal But by the time the DAPA case had reached the Fifth that court seemed to have forbearance as a of the authority to prioritize removal for a court to the forbearance of DACA would be a of a very basic enforcement As Adam Cox and I have DACA is no less enforcement discretion for the of discretion to the Secretary and away from individual even as individual agents continue to that we have a presidential administration that to rather than wind down DACA, the central of in the Regents opinion into the courts the Biden administration to continue eligibility for work authorization other to recipients of deferred action under the DACA DACA’s to its on the to this Though a promise of forbearance the and psychological with the of eligibility for work authorization is what has made DACA for hundreds of thousands of non-citizens without legal status who are Chief Justice Roberts does not on the merits whether DHS has the authority to eligibility for work But he also does not take the of of the lower courts, which the Trump administration’s conclusion that DACA was He offers as an for the agency a that work authorization for being Sessions had but on with if the administration had through with such an and it had reached the Supreme Court a second time, Roberts and his upon would have in that of work authorization was After the making deferred action recipients to for back to the The administration would then have had to rescind or those after through and and why it was so – that, as even Justice recognized, would be no But would the Chief Justice have sent the Trump administration back for more memoranda he them to and for all up with articulated policy reasons for all of DACA, the for the Court to the of DACA on the the Court was to a decision on the the 2020 election have its the Biden administration has its intention to DACA through and This to more procedural to the program in the of it through what be a legal by the of and some of its in the District of where the who invalidated DAPA now on the and when DACA to the Court under this new no one should be if forbearance at the end, it to Congress to provide a anchor of for the The way the Chief Justice in Regents the work authorization question as for legal and the expressed by some of the at in the DAPA case back in justify the litigation risk with DACA as the Court does indeed to on a version of DACA, its decision Regents as an of the Court’s of administrative and an that Executive be by clear and even In so the Court would the of the Executive branch to and into its of a deportation regime that Congress thus far has been or to This of the Executive in the of accountability and the of would in turn another of immigration law that the Supreme Court but has been in years, including during the a of decisions over the years, the Court has the of its opinion in Regents, finding that DHS has power to to the immigration laws in of In at least two the Court rejects the of and on the political in that from And in other the Court provisions with to that would be of immigrants’ including in that in basic In other the real of the Roberts Court’s immigration jurisprudence has been to the political in with waning interest in the Executive the power Congress has to

De-Politicization of the Supreme Court Nomination Process: A Practical Plan for Temporary Court Expansion

Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States

In what circumstances should there be a private right of action to sue for violations of federal election statutes. Lying at the intersection of federal courts and election law, this question has arisen in several recent cases, as private litigants have increasingly called upon federal courts to resolve election disputes. The question was before the U.S. Supreme Court in Brunner v. Ohio Republican Party (“Brunner”) which alleged that a state chief election official had failed to follow the requirements of the Help America Vote Act of 2002 (“HAVA”) pertaining to statewide voter registration lists. In a one-paragraph, unanimous per curiam opinion, the Court held that a political party could not sue, reversing the lower courts’ conclusion that there was a private right of action. The brevity of the Brunner decision masks the significance and complexity of the larger question. To be sure, the issue in Brunner was a straightforward one under existing private-right-of-action doctrine, which requires an “unambiguously conferred” individual right. The problem is this doctrine fails to account for the vital role that federal courts play in overseeing elections in the United States, especially in pre-election litigation. The availability of a private right of action is especially critical in election cases – and the existing doctrine especially ill-fitting – for both conceptual and practical reasons. On a conceptual level, election cases typically involve non-individuated or collective interests. It follows that the Court’s insistence on an unambiguously conferred individual right makes little sense in election cases. Existing doctrine is also problematic from a practical perspective, given the absence of any institution besides the federal courts with the ability to ensure consistency in the interpretation of federal law. The ultimate consequence is to leave the interpretation of federal election law in the hands of state and local officials, except in those rare instances when the U.S. Attorney General decides to sue. This is particularly troubling given the partisan affiliation of most state and many local election officials, which creates an inherent conflict of interest and makes federal judicial oversight especially important. The Court’s stringent approach to private rights of action is therefore ill-suited to federal election law disputes, because they involve quintessentially public rights for which a federal judicial forum is essential. In Brunner, the Court failed to consider the distinctive character of election controverises. In fact, both the lower courts and the Supreme Court got it wrong in this case – even though they arrived at diametrically opposite conclusions. The lower courts incorrectly applied existing precedent, which foreclosed private enforcement of HAVA’s matching requirement. But the Supreme Court was also incorrect, in failing to reconsider this precedent to account for the especially important role the federal courts play in electoral disputes. Though faithfully applying existing doctrine, the Court missed an opportunity to correct – or at least limit – a line of precedent that has unfortunate consequences in the realm of election law. The Article concludes that, in the appropriate case, the Court should revisit Brunner and relax the standard for private enforcement of federal election statutes under Section 1983.

In Moore v. Harper, the Supreme Court confronted head on for the first time the so-called independent state legislature theory (ISLT), which posits that state legislatures have exclusive authority to enact laws and regulations governing federal elections and that those laws are not subject to state court judicial review pursuant to state constitutions. Although the Supreme Court resoundingly rejected the most robust version of ISLT in Moore, commentators have argued that language in that opinion opened a dangerous door to federal supervision of state election law. This Article argues that those claims are wrong. Under Moore, federal court review is only appropriate to prevent state courts from evading federal interests, and as Moore itself made clear, the federally protected interest under the Elections Clause is the prohibition of state courts “transgress[ing] the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” Looking to the Court’s reasoning in Moore, as well as constitutional history and fundamental principles of state sovereignty, this Article argues that the ordinary bounds of judicial review are exceptionally broad, and there will virtually never be a case in which a state court transgresses those bounds in a way that amounts to an arrogation of power. The upshot, then, is that Moore did more than reject the essential premises of ISLT; it also made it extremely unlikely that any future ISLT claims will succeed.