On October 1, the Eighth Circuit decided to rehear Dakotans for Health v Johnson, 25-2940. This is the lawsuit in which the Eighth Circuit had struck down the February petition deadline for initiatives in South Dakota. The original vote had been 2-1. Now all the full-time judges of the Eighth Circuit will rehear the case.
In 1996, Congress passed a law making it a crime for a non-citizen to cast a vote in a U.S. election. On October 1, U.S. District Court Judge David Leibowitz, a Biden appointee, ruled that the U.S. Constitution does not permit Congress to pass laws on voter qualifications. Instead, he wrote, only states may do so. He cites Article One of the original U.S. Constitution. Therefore, he ruled, the federal government cannot prosecute the defendant in this criminal case for casting a vote even though she was not a citizen. U.S.A. v Cox, s.d. of Florida, 0:25cv-60249.
The decision is very interesting, not only because of the subject matter, but also the judge has a knack for writing in an accessible, somewhat entertaining manner. The question that makes this case difficult is that in 1970, in Oregon v Mitchell, the U.S. Supreme Court upheld a congressional law that said the voting age should be 18 (this was before the passage of the 26th Amendment in 1971). But the U.S. Supreme Court “majority” in that case was splintered as to rationale. Four justices thought the 14th amendment compelled letting 18-20 year-olds vote, and one Justice, Hugo Black, had a completely different rationale. That causes problems for using Oregon v Mitchell as a precedent. Here is the Opinion.
The same constitutional question is pending in several other criminal cases around the country. But this is the first to be decided.
The Bulwark has this article suggesting that some Libertarian candidates for congress this year will do unusually well.
On October 1, two New York independent voters filed a federal lawsuit arguing that the state’s closed primary system violates the voting rights of independent voters. Rieckhoff v Berger, s.d., 1:26cv-8655. No judge has been assigned to the case yet. Here is the Complaint.
On April 1, the Wyoming Supreme Court unanimously upheld a 2023 law that says voters who change party affiliation during the 96 days before a primary cannot vote in that primary. Malcom v Gray, S26-29. The decision says the law does not violate the State Constitution, because it is necessary to prevent “party raiding.” Here is the decision.
The law was passed following the 2022 primary for U.S. House. Incumbent Liz Cheney was defeated in that primary by Harriet Hageman. A large proportion of Wyoming Democrats had changed their registration to Republican weeks before the primary, so as to help Cheney. That didn’t work to save Cheney, but it motivated the legislature to pass a law making that behavior impossible, unless it was done very early.
