“Natural Born” Disputes in the 2016 Presidential Election

The 2016 presidential election brought forth new disputes concerning the definition of “natural born Citizen.” The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Unlike challenges to President Barack Obama’s eligibility, which largely turned on conspiratorial facts, challenges to Cruz’s eligibility turned principally on the law and garnered more serious attention concerning a somewhat cryptic constitutional clause. Understandably, much attention focused on the definition of “natural born citizen” and whether candidates like Cruz qualified. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling such disputes. This paper exhaustively examines these challenges, identifies three significant complications arising out of these disputes, and urges a solution for future presidential elections

Complexity Confronting State Judges and the Right to Vote

In response to Joshua A. Douglas, State Judges and the Right to Vote, 77 Ohio St. L.J. 1 (2016)

Faith in Elections

Americans may be suffering a crisis of faith. But not necessarily a crisis of religious faith. Instead, it is a crisis of faith in elections.This language of faith in elections—do we have faith, are we losing faith, can we restore faith—pervades our political discourse and suggests religious imagery. Examples only scratch the surface of the language of faith in elections, democracy, and the American ideal. The language is seemingly everywhere. Words, of course, take on different meanings in different contexts. But the choice to use the word faith does appear to deliberately invoke religious imagery. Words like trust, confidence, or belief could be used. Faith, at times, could simply be a synonym. But the religious imagery extends elsewhere, and there seems a stubborn insistence on choosing the word faith over these other words.I am not a linguist. Or a theologian. Or a philosopher. So, I approach this Essay with some trepidation. Instead of popular or political comparisons of our democratic order as a type of faith, this Essay examines faith in elections as the term is used in the federal courts. It opens by examining how we might think of faith, but in a religious context (principally, the Christian faith) and a political context. It then examines four ways that courts have invoked faith in the context of elections. Three are less controversial uses: faith as attachment to a political party, faithless presidential electors, and good faith in redistricting. One is a more significant use: faith in democracy itself. This Essay concludes by suggesting there are reasons to be reluctant to use the phrase faith, both from the judicial context and the religious context, and that other, better language may be more valuable

Election Subversion and the Writ of Mandamus

Election subversion threatens democratic self-governance. Recently, we have seen election officials try to manipulate the rules after an election, defy accepted legal procedures for dispute resolution, and try to delay results or hand an election to a losing candidate. Such actions, if successful, would render the right to vote illusory. These threats call for a response. But rather than recommend the development of novel tools to address the problem, this Article argues that a readily available mechanism is at hand for courts to address election subversion: the writ of mandamus. This Article is the first comprehensive piece to situate the writ of mandamus within contemporary election law disputes. This Article traces the history and application of the writ of mandamus in election disputes and posits that it is uniquely situated to help courts prevent election subversion. Federal and state laws delineate clear and mandatory responsibilities for election officials after votes have been cast in an election. Congress’s recently-enacted Electoral Count Reform Act strengthens the legal obligations placed upon election officials in presidential elections in particular. Courts can order state election officials to certify election results and to transmit those results to victorious candidates or the appropriate branch of government. If election officials refuse, courts can proceed to alternative mechanisms of enforcing the judgment, including expeditiously directing another actor to perform the appropriate election administration tasks. Mandamus is particularly valuable— more valuable than ordinary injunctive relief—because of the original jurisdiction in many state supreme courts to handle these disputes, which avoids the delay of a layered appellate process. This Article demonstrates the value of the existing remedy of mandamus to avoid election subversion. It then suggests ways that states strengthen the law around mandamus to ensure that election administration occurs in a timely and effective manner

Electoral Votes Regularly Given

Every four years, Congress convenes to count presidentialelectoral votes. In recent years, members of Congress haveobjected or attempted to object to the counting of electoral voteson the ground that those votes were not “regularly given.” Thatlanguage comes from the Electoral Count Act of 1887. But thephrase “regularly given” is a term of art, best understood as“cast pursuant to law.” It refers to controversies that arise afterthe appointment of presidential electors, when electors casttheir votes and send them to Congress. Yet members of Congresshave incorrectly used the objection to challenge an assortmentof pre-appointment controversies that concern the underlyingelection itself. This Essay identifies the proper meaning of thephrase “regularly given,” articulates the narrow universe ofappropriate objections within that phrase, and highlights whythe failure to object with precision ignores constraints oncongressional power

Revolutions in education

As we look to the future of education and ‘prepare for the future’ as is the theme of ICPE2022, it is instructive to consider what has been said in the past about the future of education.  Many revolutions in education have been predicted, and most have not come to pass. One recent example is that of MOOCs. In this presentation, I examine why these predictions have failed, revealing some important aspects of effective education. Discussing prophesised revolutions in education which have not eventuated, will address a number of features and pitfalls, uncovering provocative ideas I see in education research. Constructivism, while deeply embedded in educational psyche and systems, has both positives and negatives underpinned by the constructivist philosophy. The challenges brought on by the multifaceted nature of education research, contentions around the evidence base are ever present.  The complicated incentives for educational researchers to invent new terms and phrases for the same concept and ideas are part and parcel of their research. Recent developments in cognitive science and psychology research, readily available in the extant literature, have not been transferred and/or translated into educational practice.  What is apparent is the need for more replications in authentic classrooms and contexts, generating a myriad of overlapping studies such that synthesis can lead to systematic and robust findings.  In this talk I will advocate for the value of the integration, building on terms, theories, methods, evidence for systemic change in education. REFERENCES Veritasium. (2021, June 10). The Biggest Myth in Education [Video]. YouTube. https://youtu.be/rhgwIhB58PA Veritasium. (2014, December 2). The Most Persistent Myth [Video]. YouTube. https://youtu.be/GEmuEWjHr5c Veritasium. (2017, March 3). The Science of Thinking [Video]. YouTube. https://youtu.be/UBVV8pch1d

Scrutinizing Federal Electoral Qualifications

Candidates for federal office must meet several constitutional qualifications. Sometimes, whether a candidate meets those qualifications is a matter of dispute. Courts and litigants often assume that a state has the power to include or exclude candidates from the ballot on the basis of the state’s own scrutiny of candidates’ qualifications. Courts and litigants also often assume that the matter is not left to the states but to Congress or another political actor. But those contradictory assumptions have never been examined, until now. This Article compiles the mandates of the Constitution, the precedents of Congress, the practices of states administering the ballot, and judicial precedents. It concludes that states have no role in evaluating the qualifications of congressional candidates—the matter is reserved to the people and to Congress. It then concludes that while states have the power to scrutinize qualifications for presidential candidates, they are not obligated to do so under the Constitution. If state legislatures choose to exercise that power, it comes at the risk of ceding reviewing power to election officials, partisan litigants, and the judiciary. The Article then offers a framework for future litigation that protects the guarantees of the Constitution, the rights of the voters, and the authorities of the sovereigns

Weaponizing the Ballot

State legislatures are considering passing laws to prevent presidential candidates from appearing on the ballot if they fail to disclose their tax returns. These proposals exceed the states\u27 power under the Elections Clause and the Presidential Electors Clause. States have no power to add qualifications to presidential or congressional candidates. But states do have constitutional authority to regulate the manner of holding elections and to direct the manner of appointing presidential electors. Manner regulations that relate to the ballot are those that affect the integrity and reliability of the electoral process itself or that require a preliminary showing of substantial support. In other words, they are procedural rules to help voters choose their preferred candidate. Tax disclosure requirements, like term limits or other substantive ballot access conditions, are not procedural election rules, which means they fall outside the scope of the states\u27 constitutional authority to administer federal elections and are thus unconstitutional

Reducing Election Litigation

Which candidate’s name should be listed first on a ballot? Should inactive voters’ names appear printed in polling place books? Should elections be conducted exclusively by mail? Should online voter registration be available to prospective voters? When voters sign a petition to help a candidate appear on the ballot, must the petition’s circulator reside in the state? These are the questions that ordinary election administration rules answer. There might be better or worse rules. These rules might advance one set of benefits in exchange for another set of costs. They could benefit one candidate or group over another. Like every rule, they could alter behavior in ways that affect who participates in elections or which candidate wins. But they have another thing in common: plaintiffs have litigated each dispute. Judges have increasingly evaluated ever-finer points of election administration. This Article posits why the judiciary has done so and offers potential ways to reduce election litigation

Hearing before the United States Senate Committee on Rules and Administration: The Electoral Count Act: The Need for Reform

Originally published by the United States Senate Committee on on Rules and Administration Perma.cc Copy of Testimony Perma.c