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Colorado Attorney General Phil Weiser argued by telephone before the Supreme Court in May that states should be able to force presidential electors to follow the wishes of voters.
Presidential electors must follow the wishes of the state's voters, court rules
Jul 06 2020
The Supreme Court ruled unanimously on Monday that states may require presidential electors to cast their ballots for the candidate chosen by popular vote.
The decision, written by Justice Elena Kagan, appears to end the quixotic pursuit of a legal endorsement for "faithless electors" — Electoral College delegates who want to follow their own conscience instead of the voters' wishes.
By clearly rejecting the idea that electors can vote however they want, the ruling removes one strategy that opponents of President Trump attempted to use in 2016 and may have wanted to employ again if Trump were reelected this fall.
<p>Kagan concluded that the electors have "no ground for reversing the vote of millions of its citizens."</p>
<p>"That direction accords with the Constitution — as well as with the trust of a nation that here, We the People rule," she concludes.</p>
<p>Kagan's opinion, which includes references to the TV show "Veep" and the smash-hit Broadway musical "Hamilton," was joined by all of the justices except Clarence Thomas and Neil Gorsuch.</p>
<p>The two endorsed the outcome of the ruling but disagreed with Kagan's reasoning that the prohibition on electors going their own way was based on the Constitution.</p>
<p>Instead, they say the matter is not clear in the Constitution and therefore is left to the states.</p>
<p>The case emerged from the state of Washington, where three Democratic electors pledged by state law to support Hillary Clinton in 2016 decided to cast their ballots for someone else. The three hoped to convince others to follow their example, particularly those in states won by Trump. Their goal was to deprive him of a majority of electors and throw the election into the House. The electors voted for former Secretary of State Colin Powell, but they were replaced and fined $1,000 each.</p>
<p>The electors issued legal challenges but lost in district court and state Supreme Court.</p>
<p>Meanwhile, the U.S. Court of Appeals for the 10th Circuit ruled the opposite way in a case involving a faithless elector in Colorado. That court said the Constitution gave electors some discretion in casting their votes.</p>
<p>The Supreme Court took up the case to resolve the conflict.</p>
<p>Paul Smith, vice president of the <a href="https://thefulcrum.us/campaign-legal-center" target="_self">Campaign Legal Center</a>, said the ruling was correct because it eliminates the danger that a candidate could buy an election.</p>
<p>"If electors had been turned loose to violate state law and ignore state's voters, they would have been free to accept contributions from wealthy special interests who want to influence our politics," Smith wrote.</p>
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If he perceives President Trump as a threat to fundamental democratic institutions, does Chief Justice John Roberts use the Supreme Court's power to protect those institutions? Or does he defer?
Will it be Chief Justice Roberts who helps save democracy?
Jul 02 2020
Goldstone is the author of "On Account of Race: The Supreme Court, White Supremacy and the Ravaging of African American Voting Rights" (Counterpoint Press). This piece was originally published by Independent Voter News.
<p>In less than two weeks, Chief Justice John Roberts has delighted liberals and infuriated conservatives by joining the majority in three of the year's biggest cases. </p><p>On Monday he agreed to strike down Louisiana's highly restrictive abortion law. Days eralier he decided to uphold protections for young undocumented workers known as Dreamers, and to bar job discrimination against gay, lesbian, bisexual and transgender workers. Two of his votes were decisive and the third one may effectively have been, since it's unclear Justice Neil Gorsuch would have been ready to stand alone against his conservative brethren in the LGBTQ case.</p><p>Constitutional law professors and analysts have been parsing precedent and otherwise trawling jurisprudence to speculate on the reasons for what seems atypical behavior, but few have yet to explore the possibility that the explanation does not lie in jurisprudence at all. </p><p>Supreme Court eras are always discussed and evaluated in terms of the chief justice. The Marshall Court and the Taney Court were the most memorable ones in the 19th century, and the Warren Court reshaped the nation in the 1950s and '60s. Now, it will be the Roberts Court. </p><p>And he bears a burden that even the most prominent associate justices — Oliver Wendell Holmes or John Marshall Harlan, Antonin Scalia or Ruth Bader Ginsburg — never have. As Roberts noted ruefully in a 2017 interview: "It's sobering to think of the 17 chief justices; certainly a solid majority of them have to be characterized as failures."</p><p>The fact that the most historic cases — from Marbury v. Madison (John Marshall) to Dred Scott v. Sandford (Roger Taney) to Brown v. Board of Education (Earl Warren) — are inextricably linked with their presiding officer perhaps explains why Roberts previously refused to be identified with dismantling the Affordable Care Act. (In the most consequential and polarizing opinion of his early years, he wrote the 5-4 majority decision upholding Obamacare back in 2012.) </p><p>This is not the role he sought. A naturally collegial man, Roberts prides himself on both adhering to the law and bridging ideological divides. </p><p>"If I'm sitting there telling people, 'We should decide the case on this basis,' and if you, another justice, think, 'That's just Roberts trying to push some agenda again, and if it were more of a different result that he didn't like then he wouldn't be saying it," they are not likely to listen very often," he told constitutional scholar Jeffrey Rosen for his book on the court.</p><p>In that interview, when Roberts had been in the chief's job less than two years, he venerated his legendary predecessor Marshall and spoke glowingly of his ability to promote harmony by being "convivial," and taking "great pride in sharing his Madeira with his colleagues." </p><p>To be worthy of walking in Marshall's footsteps, Roberts vowed, he intended to use his power to achieve as broad a consensus as possible.</p><p>Still, although he may genuinely believe he lacks an ideological agenda, Roberts most definitely does not lack an ideology. He has in the past, with few exceptions, been predictably and reliably conservative — as in <a data-linked-post="2636209592" href="https://thefulcrum.us/citizens-united" target="_blank">Citizens United v. FEC</a><em>,</em> the decision that opened the floodgates of campaign cash a decade ago. And he has almost always deferred to the wishes of Republican presidents.</p><p>But this Republican president is like no other. There can be little question that with Donald Trump in the White House, the nation has been sliding toward dictatorship. Vitriolic attacks on an independent judiciary have been numerous, and what Republicans formerly praised as "the rule of law" has been quickly disappearing. </p><p>Roberts is thus in an increasingly fraught position. </p><p>If he personally perceives Trump as a threat to fundamental democratic institutions, as the president himself seems to want to be, does the chief justice decide he must use the Supreme Court's power to protect those institutions? </p><p>Or does he look the other way and defer? As such a self-described "keen student of constitutional history" is doubtless aware, whatever course Roberts chooses — enabler or opponent — will have a significant impact on his legacy.</p><p>To date, he has chosen generally to remain conservative — although he has occasionally bounced across the ideological divide to demonstrate that both he and the court are fair. But the political landscape has suddenly and drastically changed, and these past few weeks just may mark the moment when the chief justice decided that the nation is under sufficient threat that he must use the judiciary's power to stop it.</p><p>The stakes are enormous because the court will undoubtedly be forced to rule on a number of voting rights cases, which could well determine the outcome of the election in November. Florida and Iowa have been pursuing initiatives to add financial requirements that prevent felons from voting after their release from prison. And other states, including Georgia, Texas, and Wisconsin, have initiated voter identification requirements widely recognized as attempts to keep African-Americans from the polls.</p><p>These transparent attempts to desiccate Black voting smack of the Jim Crow South, where every state in the old Confederacy redrew its constitutions specifically to disenfranchise Black voters. To the shame of the court under Chief Justices Morrison Waite and Melville Fuller, between 1874 and 1910 the court used tortured logic and verbal gymnastics to permit blatantly discriminatory state laws to stand — helping doom the nation to decades of post-Reconstruction infamy. </p><p>With his four conservative colleagues almost certain to line up on one side of the question, only Roberts himself, already under a cloud for the gutting of the Voting Rights Act in <a data-linked-post="2636706724" href="https://thefulcrum.us/shelby-county-v-holder" target="_blank">Shelby County v. Holder</a> seven years ago, can decide if the Roberts Court will do the same.</p><div></div><p><em>Visit </em><a href="https://ivn.us/" target="_blank"><em>IVN.us</em></a><em> for more coverage from Independent Voter News.</em></p>
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The American Academy of Arts and Sciences has 31 proposals to improve democracy, including increasing membership in the House.
Panel started by Founders unveils big plan to save democracy they started
Jun 11 2020
Expand the size of Congress. Place term limits on Supreme Court justices. Make voting mandatory.
These are just some of the more provocative recommendations for revitalizing our democracy from the prestigious American Academy of Arts and Sciences. The 31 proposals, unveiled Thursday, come after two years of research into the system's dysfunction and deliberation about how to make it work better.
But the unveiling, as the 84-page report itself notes, also comes at a particularly stressful moment for an American democracy in which extreme partisanship has already crippled the government's ability to address important national problems.
<p>That gridlock is now magnified by a president who's repeatedly challenged decades of governing norms standing for re-election in five months; by a pandemic that has killed more than 100,000 Americans and propelled the country into deep recession this spring; and by weeks of nationwide protests demanding rapid systemic change to salve decades of anger and anguish at police brutality and systemic racism.</p><p>The recommendations "touch all sectors of American life and offer a bold path that will require all of us to commit to reinventing aspects of our constitutional democracy," David Oxtoby, president of the 240-year-old academy, said in releasing the report. "A disruptive media and information environment, outdated political institutions, economic and social inequality and hyperpartisan political leadership have laid bare the urgency of this imperative."</p><p>The report outlines a bleak picture of the current state of democracy — it's condition hobbled by such ailments as low voter turnout, a loss of trust in Congress and other governing institutions, and the one-third of millennials who say they don't consider democracy as essential.</p><p>"Trust in institutions has collapsed," the report concludes, "while an online culture of gleeful, nihilistic cynicism thrives."</p><p>Still, the commission found reasons to be optimistic that "reinvention of our constitutional democracy remains entirely within reach — and urgently needed."</p><p>The recommendations include a raft of policy proposals from the mainstream democracy reform agenda — and many of them were embraced by the Democratic House last year with passage of the comprehensive package dubbed HR 1, which the Republican Senate will never touch.<br></p><p>But several of them are relatively outside the box. And, notably, the academy does not join the chorus forming this year behind making voting-by-mail the nationwide norm — although it does say absentee balloting should be encouraged nationwide this fall, along with money to count votes reliably and fast, because of the coronavirus crisis.</p><p>These are some of the most prominent proposals, which the report puts in six categories:</p><h3>Boosting equality by:</h3><ul class="ee-ul"><li>Substantially enlarging the House of Representatives from its current 435 seats so that each member has fewer constituents than today's average of 750,000, although the exact number is not specified. </li><li>Using <a data-linked-post="2636700700" href="https://thefulcrum.us/ranked-choice-voting" target="_blank">ranked-choice voting</a> for presidential, congressional and state elections. This process allows voters to rate candidates for each position in order of preference, with automatic runoffs weeding out the least-popular until a single person backed by a majority emerges.</li><li>Turning the drawing of legislative district boundaries over to citizen redistricting commissions in all 50 states, as a way to end <a data-linked-post="2636688309" href="https://thefulcrum.us/gerrymandering" target="_blank">gerrymandering</a> by political parties driven to preserve their power.</li><li>Amending the Constitution to effectively overturn the <a data-linked-post="2636209592" href="https://thefulcrum.us/citizens-united" target="_blank">Citizens United v. FEC</a> decision by the Supreme Court a decade ago, thereby permitting stricter state and federal laws to control campaign contributions and spending.</li><li>Restricting justices to 18 years on the Supreme Court, with appointments staggered so one seat comes open in each two-year term of Congress.</li></ul><h3>Empowering voters by:</h3><ul class="ee-ul"><li>Giving them more choices about where to vote through vote centers and early in-person voting.</li><li>Conducting federal elections on Veterans Day so that voting occurs when many have the day off.</li><li>Allowing every person to register as late as Election Day and be automatically registered when they do business with their state driver's license agency.</li><li>Permitting 16-year-olds to preregister and giving them options to practice voting for two years.</li><li>Requiring people to vote in federal elections unless they provide a valid reason, similar to what's required in more than a dozen other countries including such functional democracies as Australia and Belgium. Those who don't vote would face a small fine.</li><li>Creating orientation for voters participating in their first federal elections.</li></ul><h3>Enhancing governmental responsiveness by:</h3><ul class="ee-ul"><li>Experimenting with citizens' assemblies to allow members of the public to convene in blocs big enough that their policy proposals hold sway in Congress.</li></ul><h3>Expanding civic engagement by:</h3><ul class="ee-ul"><li>Establishing a National Trust for Civic Infrastructure to subsidize local groups that promote community engagement and better citizenship. It would be funded from private sources at first, but the panel said Congress should consider chipping in.</li></ul><h3>Improving communication by:</h3><ul class="ee-ul"><li>Subsidizing innovative efforts to replenish the news delivery system displaced in recent years by social media. One idea is taxing digital advertising and using the revenue to support experimental media platforms and expand local and regional investigative journalism.</li></ul><h3>Bolstering commitment to democracy by:</h3><ul class="ee-ul"><li>Establishing an expectation that every American would devote a year to some form of public service and expanding funding for service programs and fellowships.</li><li>Investing more in civic education at all grade levels.</li></ul><p>"We have no time to waste," the report concludes. "For love of freedom and equality, for love of country, for love of one another, and out of hope for a better future, we need to reclaim our bond."</p><p>The report was produced by a Commission on the Practice of Democratic Citizenship, which convened 49 public listening sessions across the country and commissioned its own research after it was established two years ago by the AAAS. The academy — created by several of the Founders in 1790 to highlight the finest minds in science, scholarship, business, public affairs and the arts — is focused now on conducting policy studies in response to societal challenges.</p>
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The Supreme Court declined to hear a case challenging Montana's donor disclosure law.
Montana's tough donor disclosure law survives at Supreme Court
Jun 03 2020
Montana's disclosure requirements for campaign donors will remain among the gold standards for statewide campaign finance regulation now that the Supreme Court has decided to leave the law alone.
A federal appeals court last August upheld state requirements that groups paying for political advertising reveal their funders and spending. Without comment Monday, the Supreme Court said it would not reconsider that ruling.
The decision amounts to a symbolic but not insignificant win for advocates of more openness about political spending. Campaign finance reform groups hope Montana will provide a template for other states to adopt similarly tight disclosure requirements. And they assume the high court's ruling will form a precedent protecting future state laws against similar challenges.
<p>"Declining to hear this case protects the ability of state lawmakers across the country to use disclosure laws as a tool to promote transparency in elections," said Paul Smith of the <a href="http://thefulcrum.us/campaign-legal-center" target="_self">Campaign Legal Center</a>. "Disclosure laws like Montana's are critical because voters deserve to know who is spending money to influence their votes."<br/></p><p>The law requires nonprofit groups to register with the state as political committees if they run any kind of ad that refers to a candidate or ballot issue within two months of an election.</p><p>It was enacted five years ago as a counterbalance to the unlimited spending allowed by the Supreme Court's 2010 <a href="https://thefulcrum.us/citizens-united" target="_self">Citizens United</a> decision. But a year after it was enacted, the National Association of Gun Rights sued on the grounds the law violated the politically motivated nonprofit group's free speech rights.</p><p>The 9th Circuit Court of Appeals rejected that argument and said instead that voters had the right to know who was financing political advertising.</p><p>The law was pushed by Gov. Steve Bullock, who made a commitment to tighten campaign finance rules a centerpiece of his brief run for the 2020 Democratic presidential nomination and subsequently his campaign for the Senate. He handily won his primary Tuesday and will challenge Republican incumbent Steve Daines in what will be one of the country's most closely watched congressional races.</p><p>"Time and again, dark money groups have tried to attack Montana's campaign finance laws — because those laws work," Bullock said after the Supreme Court's dismissal.</p>
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