Category Archives: Law: Elections

Attention Law Review Editors

The odds that any actual law review editors read this blog is vanishingly small, but if you, gentle reader, happen to know one, please tell them about this terrific article, Saving Democracy from the Senate, co-authored with one David Froomnkin, that they might want to publish in their journal.

This article is the first to take stock, in a systematic and comprehensive way, of the constitutional and statutory avenues available for reforming the malapportionment of the U.S. Senate. Collecting together the various options available enables reformers to think both programmatically about the normative choices at stake and strategically about a reform agenda. This in itself is a substantial contribution, not just to constitutional theory but also to ongoing practical efforts to reform the legal architecture of U.S. democracy. Moreover, by systematizing these considerations, the article also helps to make clear the relationship between statutory and constitutional reforms of the Senate, proposing a two-track strategy for reformers.

While the work of synthesizing the options and providing a comparative analysis is the most significant contribution, the article also provides several significant and novel analytical contributions that advance legal debates in these areas:

(1) The meaning of the Article V Entrenchment Clause. The article’s claims that (a) disempowering the Senate and (b) abolishing the Senate would not violate the Entrenchment Clause are claims that have been made before, although rarely. But they are not claims that have ever, to our knowledge, received extensive analysis. The article provides this extensive analysis, explaining why a range of ambitious constitutional reforms of the Senate would not violate the Entrenchment Clause and responding to objections.

(2) The referent of the Article V Entrenchment Clause. We are not the first to suggest that the Constitution could be amended to remove the Entrenchment Clause and then subsequently amended to alter the composition of the Senate. But we provide a crisper analysis of the reason than scholars have done previously. The reason is that the referent of the Entrenchment Clause is not a provision in Article V but a provision in Article I. The Entrenchment Clause, by its language, is not a self-entrenching clause.

(3) Article V and Equal Protection. The article provides a novel argument about the relationship between the Entrenchment Clause and the application of equal protection principles to the Senate. Orts in 2019 made a related argument, but his suggestion that Congress could reapportion the Senate by statute takes an idiosyncratic view of the Entrenchment Clause. We advance the more restrained argument that, while the Entrenchment Clause at present bars the application of equal protection principles to the Senate, amendment of the Constitution to remove the Entrenchment Clause would enable reapportionment of the Senate under Reynolds v. Sims.

(4) At-large Senators. Building on our argument about what the Entrenchment Clause prohibits—and what it does not—we explore the addition of a substantial number of nationally elected Senators to make the Senate more representative of the Nation. Whether or not we kept the existing Senators, no state’s “equal Suffrage” would be altered.

(5) Statehood. The article surveys the relevant legal authorities on the admission of new states, compiling an extensive range of relevant material. In the course of discussing the currently most salient cases of Puerto Rico and DC, the Article analyzes a Twenty-third Amendment issue that has not been extensively discussed.

(6) Breaking up (and merging) states. The article provides novel analysis of practical challenges confronting breakups (and, analogously, mergers) of states. It also suggests a promising policy response to these challenges, arguing that federal legislation to mitigate states’ costs and help to incentivize state breakups would be feasible, desirable, and constitutional. This prescription is, to our knowledge, original—perhaps in part because scholars have not yet grappled with the magnitude and stakes of the problem requiring a remedy.

Although we canvas a very wide variety of alternatives, and we weigh the difficulties, virtues, and vices of each, our recommendations center on certain constitutional reforms and the admission of a few new states.

All this, and yet even with the footnotes it’s still under 30,000 words!


Posted in Law: Constitutional Law, Law: Elections, Law: Reading the Constitution, Writings | 1 Comment

Full Text of Decision by Judge Brann in PA Voting Case

Looking for the full text of Donald J. Trump For President v. Boockvar, the case in which U.S. District Court Judge Matthew Brann very thoroughly rejects claims that the Pennsylvania Presidential vote result should be set aside? Well, look no further.

It shouldn’t be relevant, but in case you care Judge Brann is a former Pennsylvania GOP party official and Federalist Society member, albeit one nominated to the bench by President Obama.

Posted in 2020 Election, Law: Elections, Trump | 2 Comments

An Inside Account of the Vote-Counting in Detroit

The mob tried to rule. But it failed.

(Imagine if the roles were reversed and it was ‘angry Black people’ crowding the tables. I bet they’d all be in jail, some with injuries….)

Posted in Law: Elections | Comments Off on An Inside Account of the Vote-Counting in Detroit


So the prognosticators say Biden will win PA, and then it’s over.  Nevada would be icing; Georgia would be a second helping.  Arizona likely his too, although the math is a bit odd there.

At that point, the issue is whether the Trump forces have a colorable legal argument, and if not whether they have the stomach for insurrection.  I can’t speak to their stomachs, but I can maybe speak to the legal issue, even though I am not by any stretch of the imagination an elections lawyer.

And so far, I’m not seeing anything.  Indeed, the best summary I’ve seen of the Trump litigating position is this:

“A lawsuit without provable facts showing a statutory or constitutional violation is just a tweet with a filing fee,” said Justin Levitt, a professor at Loyola Law School in Los Angeles.

I understand the wisdom of the old saying, ‘nothing ventured, nothing gained” but in this case, I think it’s more a case for Prof. Billy Preston:

So far, these lawsuits look like desperation ploys, nothingburgers, perhaps filed with some hope that the Supreme Court is so partisan it will bail out the losers. But it’s not in the Court’s interest to do that: it can go eviscerate the New Deal, and the Great Society, plus any later add-ons, and can do it all quite happily without Donald Trump, especially if Mitch McConnell will block any legislation much less more fundamental reform that might get in their way.

Posted in 2020 Election, Law: Elections | Comments Off on Nothingburgers

Voters’ Guide to the November 2020 Miami-Dade Ballot, Part II: Judicial Retention Elections

This is the second of three Voters’ Guides for the November 2020 Miami-Dade Ballot. See my Part I for the top-of-the-ballot discussion. This post is primarily about judicial retention elections, although I do briefly discuss the proposed state Constitutional Amendments and County Charter Amendments at the end, and I’ll have more to say about them in a subsequent post.

Judicial Retention Elections

Here things get interesting. Unlike most law professors I know, I support the idea of judicial elections at the state level as a reasonable democratic check on what I believe should be the expansive power of judges to interpret the state and federal constitutions.

As I’ve often said before, if it were up to me, I’d have the executive branch pick judges with legislative confirmation, followed by a California-style retention election every few years in which there would be an up or down vote on the incumbent. If the vote was down, the executive would pick a new judge. It seems to me that the right question is “has this judge done a good (enough) job” — something voters might be able to figure out — rather than asking voters to try to guess from electoral statements which of two or more candidates might be the best judge.

Florida’s system uses appointment plus retention elections for Supreme Court Justices and District Court of Appeal Judges. So we have six retention elections on our ballot this year: one state Supreme Court Justice, and five Judges on the state 3rd District Court of Appeals.

Long-time readers will know that it takes a fair amount for me to suggest not retaining a Judge, much less a state Supreme Court Justice. But I’m going to do that.

Florida Supreme Court: Justice Carlos Muñiz

Before joining the Court in January 2019, Justice Muñiz served as chief of staff to former Florida Attorney General Pam Bondi and deputy general counsel to former Gov. Jeb Bush. He had no judicial experience, but that isn’t necessarily a bad thing. The Pam Bondi connection, however, is bad, and made worse by his defense of Bondi’s decision to take no action against the Trump University fraud. It worked out for Muñiz, though, as President Trump appointed him general counsel to Education Secretary Betsy DeVos, a job he held when Governor DeSantis named him to the Florida Supreme Court. It’s hard to think of a worse credential than having been a top aide to Pam Bondi, but being one for Betsy DeVos might just qualify. And no, going to Yale Law School (where he joined the Federalist Society), and clerking for José Cabranes, doesn’t make up for any of it.

Governor DeSanits named Muñiz to the Supreme Court as part of a massive re-shaping of what had been a mildly liberal court, and Muñiz did not disappoint – he’s voted reliably with the conservative block starting with supporting a change to the rules of evidence in damage suits to make them less favorable to plaintiffs. And he’s been reliable ever since. That included State v. Poole in which the majority overturned the Court’s own precedent in order to hold that juries do not need to be unanimous to impose the death penalty. Fortunately, just three months later, in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), the U.S. Supreme Court cleaned that up and held that the unanimity requirement applies in state court every bit as much as in federal court.

The Poole decision also served notice that it was open season on precedent generally–something that was prefigured by some earlier decisions to withdraw opinions that had recently been decided by the Court–but before the change in personnel .

I don’t, as rule, think judges, even Justices, should be non-retained for their political leanings. But there comes a point where behavior stops being judicial, and this stuff seems to me to be over the line.

Add in some remarkably low ratings in the Florida Bar poll of lawyers . As the Sun-Sentinel summarizes the data:

[Lawyers are] asked to evaluate the judges on eight attributes including legal knowledge, temperament and impartiality. The Bar only counts the responses of those who profess some knowledge of the judges in question. In the past, judges have almost always scored 80 percent or better in favor of new terms.

… Muñiz posted only 71 percent approval overall, and only 63 percent among those lawyers who said they have “considerable” knowledge of him.

Those are the worst ratings for a justice since Joseph A. Boyd Jr., a figure in the Supreme Court scandal, scored 56 percent in 1980.

That has to give you pause. I’m going to vote AGAINST retaining Justice Muñiz (line 59).

3rd DCA: Retain them all?

These are all conservative judges.

  • Monica Gordo was appointed by Ron DeSantis in 2019.
  • Eric William Hendon was appointed by Rick Scott in 2018. (He was the first Black justice appointed by Scott — and that only just before the end of Scott’s term as Governor.)
  • Fleur Jeannine Lobree was appointed by Ron DeSantis in 2019.
  • Thomas Logue was appointed by Rick Scott in 2012.
  • Bronwyn Catherine Miller was appointed by Rick Scott in 2018.

But as I said above, I think politics alone isn’t a reason not to retain a judge, so long as they are reasonable in their judgements.

With the exception of Judge Thomas Logue, all of these are recent appointments, so there’s not necessarily a giant body of work from which to form a view. In those cases, I tend to go back to looking at what they did in former jobs, especially if they served in lower courts. If you want to do your own research, good places to start are the Florida Bar judicial retention page (biographies), and the bar poll and’s biographies. Neither, however, tells you enough.

From what I know about their prior history – and I will not claim to be an authority here – I think Fleur Jeannine Lobree and Bronwyn Catherine Miller should be retained.

The Dade County Bar Association awarded Lobree its Alan R. Schwartz Judicial Excellence Award, its “Put Something Back” pro bono service award and its special public service award. Everything I hear suggests she is a good judge. Justice Building Blog has a summary of her judicial odyssey.

Similarly, Judge Bronwyn Catherine Miller had a good reputation when she served as a Circuit Judge.

Judge Thomas Logue has the longest track record as a judge, and he also had the best score on the bar poll, although no one did especially badly. Judge Logue wrote the opinion in City of Miami v. Robert F. Piper, III, a recent case upholding a trial court’s decision requiring the Clerk of the City of Miami to deliver recall petition against Miami City Commissioner Joe Caroll to the Miami-Dade County Supervisor of Elections. The panel also included judges Fleur Lobree and Eric Hendon but I’m not sure how much credit any of them they deserve for a ruling that seemed inevitable.

Judge Monica Gordo had the lowest score on the bar poll of any of the judges up for retention–79%–among those who claimed to “have considerable knowledge” of her performance, but that 79% was very little below a couple of the others who had 81%. She’s an active UMiami Law alum–here’s a very friendly article about her and her connections to U.M..

I regret to say I’m least well informed about Eric William Hendon. He had a nice partial dissent in the recent Knespler v. Flordia case (while Judge Gordo was in the majority), but that’s not enough to base a recommendation on, other than to say I tend to have a presumption to retain judges.

For an interesting argument that every sitting Judge and Justice deserves non-retention, see Adam Tebrugge, Making the Case to VOTE NO on all FLORIDA JUDGES in 2020 . I imagine he’ll forgive me for the long quotation:

I have now been a member of the Florida Bar for 35 years. My first 23 years I worked almost exclusively as a criminal defense trial attorney handling major cases in the Sarasota Bradenton area. The past 12 years I began handling numerous appeals in the Second District Court of Appeal in Tampa. An appeal is of course important to someone who has been convicted and sentenced to prison and may represent their last chance at freedom. Appeals are also important for accountability, to make sure that trial judges and prosecutors are following the law, and to require new trials when the rules aren’t followed. Therefore, it is very important to ensure these judges are doing their job. In my opinion, they aren’t.

As mentioned above, the District Courts of Appeal are the final stop for almost all cases. So imagine for a second that you were unjustly accused and wrongfully convicted of a serious crime in Florida. Imagine you hired an attorney who agreed with you that serious mistakes had been made in your trial and agreed to represent you on appeal. Imagine that the attorney works on the case for months, files a compelling written brief of arguments in the court, then makes a powerful oral argument to the judges. Now imagine that you get the ruling of the court; “Per Curiam Affirmed,” commonly known as a PCA. You ask the lawyer what it means, and you are told it means that you lost the appeal, that the court is giving no reasons for their decision, and you have no opportunity for any further appeals.

Presently, the District Courts of Appeal in Florida are issuing a PCA in approximately 75% of all cases they hear. This means that three out of four times, the appeal is denied and nobody knows why, except the judges and they’re not telling. This is a terrible state of affairs for the citizens of Florida and for their attorneys. On the other hand, trial judges and prosecutors delight in PCAs, taking them as a stamp of approval that they can get away with anything without consequences.

Attorneys have been complaining about PCAs for as long as I have been practicing. We have a sneaking suspicion that PCAs are used in most cases as a result oriented device to cover up the many errors that occur in a trial court. As such, PCAs have been a tool of mass incarceration, filling our prisons with citizens who were illegally if not wrongfully convicted. Our complaints about PCA’s have fallen on deaf ears, with appellate court judges justifying their use due to their alleged heavy work load. They also claim that PCAs are only used “when the points of law raised are so well settled that a further writing would serve no useful purpose.” Elliott v Elliott, 648 So.2d 137, 138 (4th DCA 1994) In my experience, this statement is utterly and completely false.

I handled homicide cases for the most part, and these trials had numerous legal issues arise with no precedent in Florida law. These were substantial questions that needed definitive responses from the court, yet when I would appear for oral argument the judges showed little interest in the case or the issues. Invariably I would receive my PCA a few days later, giving me little confidence that the judges had considered my issues or even read the arguments. In my view, when Florida appellate judges are issuing PCAs in three out of four cases, they are not doing their job, and therefore should not be retained in office.

My primary argument for voting NO on all Florida judges is that they are simply not doing their job. The problem is institutional and systemic, that is, the system is designed to fail, not to vindicate the constitutional rights of litigants. But why should an individual judge lose their job because of systemic failure? This leads to my next justification for voting NO on all judges — politics. Every judge up for retention in 2020 was appointed by a Republican governor.

In the past I have been leery about politicizing judicial races but that position feels naive now. Without a doubt, Florida judges have been politicized over the past 20 years. These days, membership in the Federalist Society seems like a prerequisite to being named judge. Though they deny it, the Federalist Society is a political organization whose primary goal is to dismantle the regulatory state for businesses while reducing constitutional protections for individual litigants. Judges who come out of the Federalist Society are chosen because they will vote a certain way, not for their fealty to the law.

As arguments go, it’s got some punch, although I’m not on board for this … yet. For one thing, even if we vote these judges out, it’s DeSantis who would appoint the replacements. Yes, that’s true for Justice Muñiz too, but you have to draw a line somewhere.

Constitutional Amendments

There are six Florida Constitutional Amendments on the ballot this year. Two of them are very bad (## 3 & 4). One (# 2) is pretty good. Three (##1, 5, 6) are lightweights, although I think #1 in particular deserves a No vote.

I’ll say more about all these in a subsequent post, but if you’re in a hurry to vote now, here’s how I’m voting and a thumbnail explanation as to why:

1 No – Citizenship and age limits on voting (I don’t like the age limit, constrains local experimentation with 16 year-old-voting in local elections. Plus the amendment is just a scare tactic to drive conservatives to the polls — it’s already the law that you have to be 18 and a citizen to vote. We shouldn’t encourage this cynical use of the state Constitution.)

2 Yes – Provides for slow raises in the state minimum wage. Too slow, but better than the nothing we’re getting from the legislature.

3 NO! – Would replace current primary election system with ‘Jungle Primaries’. I hate the ‘Jungle Primary’ for reasons I will explain.

4 NO!! – Would make it even harder to surmount the gerrymandering of the state legislature with progressive constitutional amendments (like the minimum wage, or the felon voting restoration amendment from last election).

5 Yes (?) -Technical change to save-our-homes homestead exemption (but reasonable people could disagree on grounds it will cause a very small loss of revenue to local government).

6 No (but reasonable people could easily disagree) – Clutters the State Constitution with another small-bore feel-good tax break, this time for surviving spouses of people with combat-related disabilities – this is something that should be done by legislation.

Miami-Dade Charter Amendments

More about these in the next post.

Referendum 1 – Create office of Inspector General – Yes – line 212.
Referendum 2 – Delay elections to replace ‘resign to run’ officials to general election – Yes – line 214.
Referendum 3 – Nonpartisan election of Sheriff, Appraiser, etc – No – line 217.

As I said above, I plan a third post, tomorrow I hope, with more detailed discussion of my reasons for the recommendations about the Constitution and Charter amendments.

UPDATE: Continue to Voters’ Guide to the November 2020 Miami-Dade Ballot, Part III: State Constitutional and Charter Amendments.

Posted in 2020 Election, Law: Elections, Miami | 5 Comments

CDT is Doing Something About Voting Security

This is really cool: the Center for Democracy and Technology (CDT) is launching VotingWorks — a public interest non-profit that wants to build better, i.e. safe and secure, voting machines. I love it.

VotingWorks aims to shake up the voting equipment market by creating a new non-profit voting systems manufacturer with the mission of being the public works for voting systems. VotingWorks will do this by developing voting equipment that 1) embody the state-of-the-art in usability, security, design, and development; 2) are affordable to maximize any benefit to all sizes of election jurisdictions; 3) allow speedy, efficient voting processes; and, 4) that is extensible to the needs of all types of localities. And all of this will be developed in the open for the public good.

The need here is very real. Election officials often find themselves stuck between a rock and a hard place when choosing a new voting system; there are often few expensive choices that come with serious limitations in how these systems can be used, modified, improved, and studied. CDT has advised localities in procurement decisions in the past and contributed to efforts where jurisdictions are designing their own voting systems – such as the Los Angeles County VSAP project – and the common factor in all these cases is the wide variety of needs and requirements that elections present, and how few systems can meet them all.

CDT will serve as a home for VotingWorks until it becomes its own non-profit entity. This partnership means VotingWorks is working closely with the CDT’s experienced team to rapidly ramp up operations and begin in earnest the development of affordable, secure, open-source voting machines for use in US public elections.

Two thumbs up from here.  We need this.

Posted in Law: Elections, Sufficiently Advanced Technology | 1 Comment