The Presidential election of 1876 was spectacularly fouled up.

Three states certified dueling slates of electors; Congress resolved the resulting confusion with a political compromise about the end of Reconstruction, and then passed laws to try to avoid a similar crisis in future years.

While we have been lucky since 1876 to not have another election with so many technical problems, the laws passed by Congress are not imperfect. Many of their nuances are very much alive today, and form a big part of the still-running dialogue about finalizing the 2020 Presidential election process.

To fully understand the end of this election, you need to channel "The Spirit of 1876"  . . . .

(This PowerPoint presentation contains more information about the 1876 election and its consequences, prepared for a recent talk I did for a fundraiser for the New York City Urban Debate League.) 

The issue in Roman Catholic Diocese of Brooklyn v. Cuomo  was whether a governor's order about maximum gathering size unfairly restricted religious liberty; by a 5-4 margin, the Supreme Court found that it likely did. The reasoning of the Court, and the concurring and dissenting Justices, suggests ways that the Court may examine future cases about COVID restrictions. It also shows the immediate impact that Justice Barrett's appointment has had on the Court, particularly on the issue of protecting religious liberty. 

President Trump's die-hard supporters are calling on his lawyers to "Release the Kraken," in the form of (as-yet-unknown) evidence showing alleged election fraud. 

This episode looks at the history of the mythic Kraken, and notes that the sailors who created the myth were afraid to say its name because it was such an alien and powerful force. 

Accordingly, the Kraken may not be the wisest myth to incorporate (or "syncretize") into our modern Constitutional dialogue about election law. 

This episode looks at Bogert v. Secretary,  the first U.S. Circuit-level case to result from the aftermath of the 2020 election. The case focuses on the concept of "standing"--a limit on judicial power that flows from the words "case or controversy" in the Constitution--to find that two important election-related issues had not been presented in a manner that the federal court system could address. 

In 1603, Sir Walter Raleigh was convicted of treason and executed based on an out-of-court statement by Lord Cobham -- despite Sir Walter's objection that "[Lord Cobham] is in the house hard by, and may soon be brought hither." The result of Raleigh's trial is a rule against "hearsay" testimony, and that rule was dispositive of a vote-counting case in Michigan last week. Raleigh is best known for introducing tobacco-smoking to Europe, but his legacy is also directly relevant to our ongoing election about the 2020 vote count. 

Last week in Pool v. City of Houston, the Fifth Circuit confronted a "zombie statute"--a law that nominally remain in the law books even though they are unenforceable after having been found unconstitutional. (There are dozens of such laws across the country, including many old Jim  Crow-era segregation laws, as well as the ordinance against same-sex marriage that was struck down in Obergefell v. Hodges.) 

The plaintiffs, who wanted to circulate petitions in Houston to begin the citizen referendum process, had standing to sue about an unconstitutional restriction on their rights even though the Supreme Court had struck down a similar law 20 years ago. 

In the words of the Court, given Houston's actions towards the plaintiffs: "This zombie shows signs of life." 

Abbott and Costello struggled to answer, "Who's on first?" In election cases today about the COVID-19 pandemic, that same question--applied to the specific defendants who have been sued--can resolve the case, and implicates basic principles about how our government is organized.

This episode considers Mi Familia Vota v. Abbott, a recent Fifth Circuit case about election law, in which the Court concluded that the plaintiffs had sued the wrong defendants (Texas's Governor and Secretary of State)--and reviews why that question is fundamental to the organization of our government under the Constitution.

The episode also honors the spectacular moustache of Edward Young, the Attorney General of Minnesota in 1908 and the namesake of the landmark case of Ex parte Young. 

A Texas statute allows registered voters, age 65 or older, to request an early-voting ballot that may be returned by mail. In a 2-1 decision, the Fifth Circuit recently rejected a claim that this statute impermissibly "abridged" the rights of younger voters in violation of the 26th Amendment. 

The majority and dissent used the same basic approach to review the case--first, identifying a baseline level of protection for the right to vote, and then, measuring whether the Texas law was an "abridgement" of that protection. But despite starting with the same basic framework, they reached opposite conclusions, showing how slippery the concept of "abridgment" can be in this setting. 

For many years, state legislatures chose the Presidential electors, and popular vote played no role. Since the 1830s, though, legislatures have chosen to allocate electors based on the results of the popular vote for President. The Constitution still gives state legislatures broad power to appoint electors, however, and the COVID-19 pandemic could create situations where a legislature will want to intervene in the elector-appointment process. This podcasts considers the source of that power, the legal constraints on it, and how a state legislature could potentially act within the bounds of the law in this area--particularly if a Presidential or Vice-Presidential candidate became incapacitated by COVID-19. 

Are Judge Amy Coney Barrett's religious beliefs off-limits for her upcoming confirmation hearings?

At first blush, yes, particularly given the long and unpleasant history of anti-Catholicism on the national political stage. But on a second look, and considering the well-settled concept from trial practice about "opening the door" to evidence on a particular issue, there is a distinct and important role for questions about religion.

Judge Barrett's first law review article as an academic suggested that Catholic trial judges should recuse themselves from death penalty cases. Is her distinction between trial judges and appellate judges (such as a Supreme Court Justice) a meaningful one? The Senate will have to tread carefully to explore that important topic while maintaining appropriate boundaries between church and state.