Monday, March 04, 2024

The Court Wasn't Clear Enough

Gerard N. Magliocca

If the majority in Trump v. Anderson wanted to foreclose the possibility of a post-election Section Three challenge to Donald Trump's eligibility, then they did a poor job. The majority did not address the Electoral Count Reform Act or the Joint Session pathways at all. Thus, if Trump wins in November those pathways will remain open (or at least a lot of people will think that they are open).

It's the worst of both worlds. The majority used dicta that drove away four Justices and denied fans of unanimity the satisfaction of a single opinion. But the dicta doesn't accomplish anything because it's too vague. Perhaps they should have taken a few more weeks to iron that out.


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