The Justiciability of Eligibility: May Courts Decide Who Can Be President?

The 2008 election cycle has been a busy one for legal disputes over the qualifications of presidential candidates, with federal cases having been filed to challenge both major candidates’ eligibility under the “natural born Citizen” clause. These cases unquestionably present vital questions of constitutional law, touching on matters of self-evident national importance. It is doubtful, however, that they are justiciable in lower federal courts. Standing requirements and the political question doctrine make it unlikely that a federal court will reach the merits in cases of the type filed to date

First Amendment Equal Protection: On Discretion, Inequality, and Participation

The tension between equality and discretion lies at the heart of some of the most vexing questions of constitutional law. The considerable discretion that many official decisionmakers wield raises the spectre that violations of equality norms will sometimes escape detection. This is true in a variety of settings, whether discretion lies over speakers\u27 access to public fora, implementation of the death penalty, or the recounting of votes. Is the First Amendment violated, for example, when a city ordinance gives local officials broad discretion to determine the conditions under which political demonstrations may take place? Is equal protection denied where the absence of uniform standards for vote recounts gives low-level bureaucrats wide latitude in determining which votes to count?6 The subject of this Article is the role of the courts in policing the distorting effects of discretion upon constitutional equality, particularly where rights of political participation are at stake. It uses the term First Amendment Equal Protection to refer to those cases applying an especially searching mode of analysis where the government threatens to undermine equality in the realm of expression. At the core of First Amendment Equal Protection, I argue, is the democratic ideal that all citizens should have an equal opportunity to participate in public discourse. The cases that I include under this rubric exhibit a heightened sensitivity to the threat to equality posed by excessive official discretion. This sensitivity has led to stringent tests designed to smoke out illicit motivations. Among the doctrines developed to cabin discretion in the realm of speech are rules requiring exceptionally clear standards where government requires permission to speak in public places, and liberal rules regarding facial challenges, justiciability, and appellate factfinding. These safeguards against inequality in the realm of speech have for the most part endured, despite the changing makeup of the Court and judicial philosophies of its members

An Unsafe Harbor: Recounts, Contests, and the Electoral College

Although recent proposals for modifying the Electoral College process have focused mainly on how electoral votes are assigned, another problem with the current system has received less attention: the timetable for resolving post-election disputes over electors. Under 3 U.S.C. § 5, the so-called “safe harbor” provision of federal law, a state can be assured of having its chosen slate of electors recognized only if post-election disputes are resolved within thirty-five days of Election Day. As a practical matter, this provision doesn’t provide states enough time to complete recount and contest proceedings in the event of a close, contested election. This problem surfaced in Florida’s 2000 presidential election and might well have resulted in Congress deciding the election, if not for the Supreme Court’s intervention in Bush v. Gore. The opinion in that case was issued on the safe harbor date, December 12, 2000. The Court’s disposition of Bush v. Gore, which effectively ended the recount process, was partly predicated on Florida’s intent to avail itself of the safe harbor date. Four years later, a replay of this crisis nearly occurred in Ohio. If the vote had been a bit closer and Senator Kerry had challenged the result, Ohio would have been hard pressed to complete its canvass, recount, and contest process in time. This Commentary addresses the tension between the federally prescribed Electoral College dates and state procedures for resolving close elections. I first discuss the federal timetable for selecting electors and counting their votes. I then move to a discussion of the difficulties in fitting state post-election proceedings into the federal timetable. Finally, I propose changes to federal law designed to give states more time to resolve postelection disputes