New draft: "Floor Fight: Protecting the Presidential Nomination Process from Last-Minute Manipulation of the Rules for National Party Conventions" papers.ssrn.com/sol3/papers.cf…
The Democratic & Republican parties nominate presidential candidates at national conventions. The rules governing the conventions aren't adopted until the conventions begin, after delegates have been selected & millions of votes cast throughout the nation in primaries & caucuses
The delegates vote on numerous potentially dispositive rules, such as whether delegates' pledges or binding are enforceable, the percentage of votes needed to win the nomination, eligibility requirements for potential presidential candidates, and whether the unit rule applies.
Due to the complexities of the presidential nomination process, delegates may be bound or pledged to presidential candidates they actually oppose. They may try to change the rules at the last minute to ensure the defeat of the very presidential candidates to whom they're bound.
Candidates, delegates, and party leaders have engaged in such last-minute machinations on numerous occasions, like the Democratic National Conventions of 1968 and 1980, and the Republican National Convention of 1880.
This piece explores the convention rules most susceptible to last-minute manipulation and presents several case studies. Allowing such last-minute rule changes fosters intra-party intrigue at the very moment a political party should be unifying and coalescing around a candidate.
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1/This piece says if Repubs keep objecting in Congress 1/6 session it's "possible, though unlikely, that the business of counting the votes wouldn’t be concluded in five days, at which point the Electoral Count Act says that the recesses for debating objections to votes must end"
2/ The joint session of Congress does not go into "recess" to debate objections, however, but rather "dissolves." A recess is only when Congress is done with its business for the day. Even when Congress is barred from taking recesses, it may still dissolve to vote on objections.
3/ In other words, the Electoral Count Act ("ECA") doesn't state that "recesses for debating objections . . . must end" after five days.
1/ This piece argues based on a precedent set by Thomas Jefferson in 1800 that VP Pence should present & count only the alternate unofficial slates of electoral votes from states like PA when Congress meets in joint session to count electoral votes on Jan. 6. The argument fails.
2/ Jefferson, as VP, presided over the joint session where electoral votes from the Election of 1800 were counted. Georgia's votes suffered from several technical procedural defects that were facially apparent.
3/ As presiding officer, Jefferson had the contestable votes counted w/o giving members of Congress a chance to object. This is allegedly a precedent for allowing Pence to unilaterally count whatever slates of electoral votes he wants. But the analogy fails for many reasons.
1/ A new Texas lawsuit seeking to invalidate 100,000 curbside votes is flatly wrong & should be immediately dismissed. This legally baseless suit was filed by a Republican state rep, two Republican candidates, and a voter (not the Texas Republican Party) assets.documentcloud.org/documents/2040…
2/ In my view, the plaintiffs definitely have standing (though their claims are completely meritless). Candidates have a right to have their election resolved based solely on legally valid votes, & voters have a right to not have the weight of their votes diluted by invalid ones.
3/ From there on out, the suit's a tire fire. As the Complaint itself EXPRESSLY acknowledges, Texas law specifically authorizes curbside voting if "voting inside the polling location would create a likelihood of injuring the voter’s health." Tex. Elec. Code 64.009.
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1/ Wisconsin Governor Evers order suspending in-person voting appears to exceed his power under Wisconsin law. The state lacks a broad election emergency statute empowering election officials to modify the rules governing the electoral process in response to unexpected disasters
2/ The Governor's Executive Order 74 purports to invoke the state's general emergency statute, Wis. Stat. 323.12(4)(b), which allows the governor to "Issue such orders as he or she deems necessary for the security of persons or property" in an emergency. evers.wi.gov/Documents/COVI…
3/ The problem is, Wis. Stat. 323.12(4)(b) likely doesn't let him suspend/ignore state statutory requirements, for 2 reasons. First, Wis. Stat. 323.12(4)(d) lets the Gov "[s]uspend the provisions of any administrative rule if the strict compliance" would hinder disaster response.
1/ If an act is unconstitutional, and it's "clearly established" that the act is also a crime in which officers may not engage or that dep't policy would prohibit the act, then a plaintiff shouldn't have to *also* show that the act's unconstitutionality is clearly established.
2/ The "clearly established" law prong of qualified immunity is all about notice to officers & ensuring zealous law enforcement. The Supreme Court doesn't want police held unexpectedly liable based on activist judges' unpredictable ex post facto decisions to create new rights.
3/ But if there are already binding sources of law, such as state criminal law, that clearly establish an act as prohibited, then officers already know they may not engage in that conduct. They already have adequate notice they shouldn't be engaging in such conduct.