Election Law: Volume 1

Description: THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding election law. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals.* * * According to the constitutional blueprint for implementing the Electoral College, the States alone (through their legislatures) possess the power to determine the manner of appointing presidential electors. See U.S. Const. art. II, § 1, cl. 2; id. amend. XII. The text of the Elector Clause reads: "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. . . ." Id. art. II, § 1, cl. 2. In interpreting the bounds of the Elector Clause, the Supreme Court has stated that "[t]he state legislature's power to select the manner for appointing electors is plenary." Bush, 531 U.S. at 104 (citing McPherson, 146 U.S. at 35). It is precisely for this reason that the Constitution does not prescribe or endorse any selection method in particular. See McPherson, 146 U.S. at 28 ("The final result [of the constitutional convention] . . . reconciled contrariety of views by leaving it to the state legislatures to appoint directly by joint ballot or concurrent separate action, or through popular election by districts or by general ticket, or as otherwise might be directed."); see also id. at 27 ("The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors."). State legislatures have utilized a variety of appointment mechanisms since the framing of the Constitution, but in recent memory, "[h]istory has . . . favored the voter." Bush, 531 U.S. at 104. Of course, the hand that giveth, also taketh away (if it so desires). See id. (citing McPherson, 146 U.S. at 35) ("The State . . . after granting the franchise in the special context of Article II, can take back the power to appoint electors.").Plenary as a state legislature's power to dictate the manner of appointing presidential electors may be, it is not beyond judicial review. On the contrary, it is "always subject to the limitation that [it] may not be exercised in a way that violates other specific provisions of the Constitution." Rhodes, 393 U.S. at 29; see also Williams, 288 F. Supp. at 626 (noting that in order to pass muster, "the manner of appointment must itself be free of Constitutional infirmity"). The Equal Protection Clause of the Fourteenth Amendment is one such well-established limitation (the First Amendment is another, as we will explain later). See Rhodes, 393 U.S. at 29 ("[N]o State can pass a law regulating elections that violates the Fourteenth Amendment[]. . . ."); Wesberry v. Sanders, 376 U.S. 1, 17-18 (1964) ("Our Constitution leaves no room for classification of people in a way that unnecessarily abridges [their] right [to vote].").Lyman v. Baker, (1st Cir. 2020)Read less

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