Preparing for the Next January 6th
As Congress deliberates reform of the Electoral Count Act, it behooves the legal community to keep a watchful eye.
February 24, 2022 at 12:15 PM
6 minute read
Election and Political LawOne need not be a partisan to easily see that the procedures by which we elect the President of the United States are fraught with problems. Were it not for the fact that the U.S. Supreme Court's decision in Bush v. Gore is generally off-limits as precedent, its holding that Florida's recount process violates voters' equal protection rights could be the basis for the invalidation of so many inconsistent state voting laws in presidential elections. After all, why should voting for electors in one state be different or more difficult than in another? Although this equal protection argument to challenge restrictive state laws is unlikely to prevail under current jurisprudence, free associational rights under the U.S. Constitution might. The Supreme Court in Anderson v. Celebrezze struck down an Ohio ballot access deadline for president because it hindered his ability to reach 270 Electoral College votes and thus diluted the votes of his supporters across the country. One could thus analogize that a New York voter's associational rights are likewise unconstitutionally impacted by restrictive voting laws in Texas or Arizona.
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