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Thursday, December 08, 2022

Crooked State Elections

I wasn't thrilled with the argument in Moore. The Court seemed to converge on the position that Chief Justice Rehnquist's concurring opinion in Bush v. Gore should become the law. This is not good for a couple of reasons. First, Rehnquist's opinion was not well-reasoned. Second, adopting his position will create an excuse for lots of election related litigation over state courts allegedly misinterpreting state law. No matter how deferential the standard of review is, everyone will want to test it out in 2024 and cause mischief

There is no great solution to the problem of a crooked state election (say, Lyndon Johnson stealing his Senate seat in 1948). Congress is not well-situated (especially these days) to resolve such issues. Neither is the Supreme Court. State courts also have their problems, but I'm more inclined to just leave it with them.

Posted by Gerard Magliocca on December 8, 2022 at 11:35 AM | Permalink


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