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Beautiful image found here. (And yes, I know the grammatically correct word is “finished” but if Cruz and Hawley get to violate the Constitution, I get to play loose with the grammar.)

I’ve written four extensive essays (here and here and here and here) about the illegality in Cruz and Hawley’s objections to the count of the electoral vote on January 6. But as I’ve gotten a bunch of emails asking essentially the same question, it’s clear one part of my argument is not sufficiently clear.

These emails essentially ask:

Why isn’t it ok to have a debate and discussion; what harm could come from spending two hours discussing whether in fact the votes in key states — Pennsylvania, Arizona, Georgia, Wisconsin, Michigan—were proper?

If Cruz and Hawley had simply triggered a…


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Gage Skidmore, CC BY-SA 3.0, via Wikimedia Commons

There is so much schadenfreude in the fight over the Neera Tanden appointment that I fear we are losing perspective. This fight is not just about Tanden. It is also about the future of the Biden administration.

Tanden has made many enemies with her sharp words and mean tweets, especially among progressives. And as the head of the Center for American Progress, she has had commerce with forces that are not friends of progressives. These two factors have led too many to tilt too weakly against the efforts to block her appointment as budget director. That is a real mistake.


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We filed cert. Friday in the latest stage of litigation challenging the state-created practice of awarding presidential electors in a “winner take all” (WTA) manner.

The litigation has been conducted in four states—two Red states and two Blue states. Every circuit has believed itself bound by a 1968 Supreme Court summary affirmance upholding the practice, Williams v. Virginia State Bd. of Elections, 288 F. Supp. 622 (E.D. Va. 1968), aff’d, 393 U.S. 320 (1969). In one case, Baten v. McMaster, 967 F.3d 345, 364 (4th Cir. …


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Watching journalists interview Republicans about the recent failed right-wing coup is just painful. Even the very best — George Stephanopoulos—just get it wrong.

Every interview I’ve seen goes something like this:

  1. Journalist: Will you admit Joe Biden won?
  2. RW Politician: Well, hold on, there are lots of questions that have not been answered.
  3. Journalist: But scores of courts heard those complaints, and all but one of them concluded there was nothing to them.
  4. RW Politician: But those cases were mainly decided on technical grounds like standing or laches. …

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On Wednesday, I had an oral argument “in” (virtually, unfortunately) the Alaska Supreme Court in our case arguing to uphold the state’s law regulating SuperPACs, Patrick, et al., v. Alaska.

We’ve adopted a different strategy in this case from, say, Lieu v. FEC: Our aim is to argue to the originalists on the United States Supreme Court especially that their theory of constitutional interpretation should lead them to embrace an original understanding of the operative term in their First Amendment test — “corruption”—and that such an understanding would allow the regulation of SuperPACs.

If we get to the United States…


Senator Josh Hawley continues to defend his indefensible behavior of 10 days ago. The indented part below is an oped published by Senator Hawley in the Southeast Missourian Thursday. Responses are my own.

Last week I objected during the Joint Session count of electoral votes in order to have a debate on the issue of election integrity.

This is the key point, and right out of the gate, he is confessing his error. Senator Hawley is free to ask for a debate on the issue of election integrity. He is free to stand on the floor of the Senate…


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Senators Cruz and Hawley were not just acting badly or cowardly or opportunistically. It is important that people see why they were acting illegally.¹ And obviously, not necessarily just them. But illegality requires intent. Intent requires knowledge. And these two well-trained lawyers (and one former law professor) certainly knew what they were doing was wrong. That knowledge renders their acts illegal.

Why was it wrong?

The proceeding within which Cruz and Hawley raised their objection is governed by the Twelfth Amendment and the Electoral Count Act. The ECA fills in the details of the Twelfth Amendment. …


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Credit: Francis Chung / E&E News

Unless you are familiar with this corner of the law, it’s not obvious just how outrageous Senator Josh Hawley’s stunt in Congress was. Until Hawley announced he was going to object, the Majority Leader had kept a tight lid on the process. Once Hawley opened the door, 12 others followed in the Senate. No doubt, orchestrating that challenge was not the cause of the riot. But that challenge gave comfort to those who rioted, as did the clenched fist Hawley flashed to the (soon to be) rioters as he entered the Senate. …


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Senators Hawley and Cruz (public domain)

At the core of the Constitution’s democracy clauses is a fundamental distinction: While Congress is the “Judge” of its own “Elections,” it is the States that determine the election of the President.

This difference was the product of self-conscious design. The framers feared a President selected by Congress. They crafted a system to protect his selection from congressional interference as much as possible. Obviously, at some point, the vote of electors has to be counted. But never in American history has Congress purported to pierce the determination of the states in the casting of the electoral votes. No doubt the…

Lessig

law professor, activist.

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