This morning, the Supreme Court dropped its much-anticipated opinion on faithless electors in Chiafalo v. Washington, which was consolidated with Colorado Department of State v. Baca. Ruling unanimously, the Court held that a state may enforce an elector’s pledge to support their party’s nominee – and the state voters’ choice – for president in the Electoral College.
For many, the Court’s opinion puts to rest the argument that electors have the freedom to depart from the will of the voters to instead cast their vote as they please; however, the Court’s decision leaves open two methods by which electors can remain faithless – (1) when the state has no law in place to compel faithfulness, and (2) when the penalty is a monetary fine that the elector can pay in exchange for his unfaithfulness.Read more
Today, the Supreme Court held in Espinoza v. Montana Department of Revenue that, under the Free Exercise Clause, if a state has a program giving public dollars to citizens to use at private schools, it cannot tell those citizens that the money can only be used at non-religious private schools. Montana had decided that its scholarship program funds could not be used at religious schools under the state's Blaine Amendment, a legacy of a failed anti-Catholic amendment to the U.S. Constitution. Many First Amendment advocates hope this opinion proves to be a fatal blow to the discriminatory anti-religious Blaine Amendments still found in many state constitutions.Read more
Today’s decisions by the Supreme Court were a mixed bag. First, any way you look at it, Chief Justice Robert’s decision in June Medical Services v. Russo is hard to reconcile with his dissent in Whole Woman's Health v. Hellerstedt. From SCOTUSblog:
Four years ago, by a vote of 5-3, the Supreme Court struck down a Texas law that (among other things) required doctors who perform abortions to have the right to admit patients at a nearby hospital. In that case, Justice Anthony Kennedy joined his four more liberal colleagues in holding that, although Texas has a genuine interest in protecting the health of pregnant women, there was no evidence that the law actually did anything to promote that interest – but it did make it more difficult for women to get an abortion. Kennedy is no longer on the court, but today it was Chief Justice John Roberts who joined the court’s four liberals in ruling in June Medical Services v. Russo that a similar law from Louisiana is unconstitutional – even as he maintained that he continues to believe that the Texas case was wrongly decided.Read more
President Trump campaigned on judges, and he delivered at an impressive rate. As Mike Davis puts it:
To put this in perspective, President Obama appointed 55 circuit judges in 8 years; President Trump has appointed 53 in under 4. In doing this, President Trump has filled every federal circuit-court vacancy – something not done by any president in more than 40 years.
At 200 (and counting), President Trump is #2 of 45 for the pace of all Article III judges – and he would be #1 but for the fact that Congress created 152 new judgeships (25 percent) for President Carter to fill.Read more
The COVID-19 pandemic has created unique challenges for this year's primaries that give insight into how November's Presidential election will play out. Problems experienced in Georgia and Pennsylvania exposed weaknesses in local Democratic officials election administration plans, while Kentucky emerged as a model for how other states should proceed.Read more
On Wednesday, former National Security Advisor Michael Flynn emerged victorious in the fight over whether to grant his writ of mandamus filed in the D.C. Circuit. This comes after U.S. District Court Judge Emmet Sullivan refused to dismiss Flynn’s case, despite the Department of Justice informing the court that it was no longer pursuing charges against him. Judge Sullivan appointed John Gleeson as amicus curiae to argue for his ability to decide whether the charges should be dropped. In an opinion authored by Judge Neomi Rao the D.C. Circuit admonished Judge Sullivan’s decision to appoint Gleeson and ordered the lower court to dismiss the charges against Flynn.Read more
Despite warnings from prominent liberals that Tuesday's election in Kentucky would be a disaster, the state largely had success with the adjustments it made to its voting procedures during the COVID-19 pandemic. Republican Secretary of State Michael Adams worked with Democratic Governor Andy Beshear to implement protocols for Tuesday's election to run smoothly. Voter turnout is expected to be on par or greater than normal for primary elections. By 3:30 p.m., over 103,000 votes had been cast in person on Tuesday.Read more
Last month, the Supreme Court heard oral argument (virtually) in two "faithless electors" cases, Chiafalo v. Washington and Colorado Department of State v. Baca. Presidential electors who wished to vote in 2016 for persons other than Hillary Clinton, who won the popular vote in both states, were sanctioned by the states – a $1,000 fine for the Washington electors and removal for the Colorado electors. These cases present interesting constitutional, jurisdictional, and legal policy questions, and the justices seemed to consider them close cases during oral argument. Part I featured some highlights from arguments presented to the Court by amici, and this post will focus on oral argument and the analysis of the case.Read more
On Wednesday, former National Security Advisor Michael Flynn's legal team and the Department of Justice filed responses to the inflammatory brief written by Michael Gleeson on behalf of District Judge Emmet Sullivan. Judge Karen LeCraft Henderson referred to Gleeson as an "intemperate amicus" during oral arguments before the D.C. Circuit last week.Read more