Are there any legal theories under which New Hampshire&#39;s first-in-the-nation state primary law could be upheld or struck down federally? With the 2020 Democratic primaries underway, the role played by the early states (particularly Iowa and New Hampshire) is again under scrutiny. Let's suppose that in 2028, one of the parties decides to give another state a chance to go first. New Hampshire's Secretary of State looks at the state's election laws, and notes that they require him/her to hold their presidential primary at least 7 days before any other state's primary: The presidential primary election shall be held on the second Tuesday in March or on a date selected by the secretary of state which is 7 days or more immediately preceding the date on which any other state shall hold a similar election, whichever is earlier, of each year when a president of the United States is to be elected or the year previous. ... The purpose of this section is to protect the tradition of the New Hampshire first-in-the-nation presidential primary. So New Hampshire holds its primaries first anyway. The party's national committee decides to play hardball, and says that the New Hampshire delegates will not be seated at the national convention if New Hampshire jumps the queue. (This was done to Democratic delegates from Florida &amp; Michigan in 2008, for example, after those states held an earlier primary than the Democratic National Committee wanted them to.) What happens next? Are there any legal theories under which the state of New Hampshire could sue to enforce the seating of their delegates at the national convention? Would such an action need to happen at the state level (in New Hampshire), in federal court, or somewhere else entirely? Or are political parties private organizations who can make their own rules about who they allow to vote at their conventions? Ignore, for the sake of this question, the political aspects of whether any party would be willing to play hardball with the state of New Hampshire over this issue. Feel free to bluntly correct any misconceptions implicit in this question.
Analysis. This question has never been squarely resolved by case law. An analysis would look to the U.S. Constitution (the pertinent parts of which are restated below) and case law under it, to determine if Congress has the authority to enact such a law or not including whether laws currently on the books affect it. Caucuses and primaries are used by political parties as part of their process for determining their Presidential nominees, and the only constitutional acknowledgement that they exist, or are subject to federal regulation is in the 24th Amendment. Political parties also have a 1st Amendment freedom of association interest in choosing their nominees as they see fit, subject to reasonable regulation in an area of law that is not well spelled out in case law. On the the other hand, caucuses and primaries are government regulated, mostly at the state level, because their results have an officially recognized role in Presidential elections under state laws regulating elections for Presidential electors, and primaries are generally conducted at state expense by state and local government officials, rather than by political parties acting autonomously. And, states have wide expressly granted discretion regarding how they conduct Presidential elector elections subject to the authority of Congress to prohibit various kinds of discrimination in the conduct of elections and to set the date of Presidential elections (a right that Congress has chosen not to strictly enforce allowing early voting, for example). New Hampshire does have the authority to say what a political party must do to have its nominee recognized on its general election Presidential ballot, and when it will conduct its state primaries. But, it does not necessarily have the power to determine whether or to what extent a national political party will consider the results of that primary in the process of selecting its nominee for President. The Democratic party, for example, would probably be within its rights to award no delegates to its national convention based upon New Hampshire's primary election participants based upon the New Hampshire primary election, and to instead award New Hampshire delegates solely as &quot;superdelegates&quot; who serve ex-officio, or based solely upon an entirely privately funded and operated Presidential caucus it held in New Hampshire at a date of its choosing. The flip side is that New Hampshire might be within its rights, probably, to decline to put a Democratic party national convention chosen nominee on its Presidential elector ballots, a retaliation, although arguably that would deny the rights of its citizens to vote in the Presidential election over which the federal government has more regulatory authority. The exact details of any situation leading to litigation would matter a lot, and it isn't possible to predict with any great certainty how a challenge would come out, although it is possible to articulate what provisions of the U.S. Constitution (and with more research, what court cases (maybe a dozen or two are arguably pertinent), federal statutes and state statutes) would be pertinent to the decision. It is possible to advocate for an outcome within the range of legally relevant authority, but, in practice, a negotiated compromise that would not push up against the hard constitutional limits of the constitution, relevant statutes and cases would almost surely be reached before it came to that point. For example, while New Hampshire might arguably have the right to refuse to put the Democratic nominee on the ballot because it didn't consider the results of its first in the nation primary in choosing its nominee, I very much doubt that New Hampshire officials would actually go that far, if push came to shove. On the other hand, if Congress passed a law stating that the District of Columbia shall hold the first in the nation primary, as it is probably expressly authorized to do under the 23rd Amendment, that federal law would probably pre-empt New Hampshire's law on the point. Relevant Provisions Of The U.S. Constitution As Amended Article I, Section 4 of the U.S. Constitution might be relevant. It states: The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. Article I, Section 8 of the U.S. Constitution might be pertinent, it states in the pertinent part that: The Congress shall have power . . . To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. Even more directly, Article II, Section 1 which states, in part, that: The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows: Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. . . The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States. Article VI states in the pertinent part that: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. The 1st Amendment to the U.S. Constitution might apply. It states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. The 10th Amendment to the U.S. Constitution might apply. It states: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Sections 1, 2, and 5 of the 14th Amendment to the U.S. Constitution might apply. These sections state: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . . Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. . . . Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. The 15th Amendment to the U.S. Constitution might apply. It states: Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. The 19th Amendment to the U.S. Constitution might apply. It states: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. Congress shall have power to enforce this article by appropriate legislation. The 23rd Amendment to the U.S. Constitution might apply. It states: Section 1. The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. Section 2. The Congress shall have power to enforce this article by appropriate legislation. The 24th Amendment to the U.S. Constitution, which is the only one expressly recognizing the existence of primary elections, might apply. It states: Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax. Section 2. The Congress shall have power to enforce this article by appropriate legislation. The 26th Amendment to the U.S. Constitution might apply. It states: Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age. Section 2. The Congress shall have the power to enforce this article by appropriate legislation. Collectively, these sections of the U.S. Constitution give the federal government considerable legislative authority to regulate state elections for federal offices.
&quot;Could Maine pass a law making New Mexico corporations and LLCs legally nonexistent in Maine (and removing the corporate veil in cases where Maine courts have jurisdiction)?&quot; No. The full faith and credit clause of the U.S. Constitution, and the dormant commerce clause doctrine of U.S. Constitutional law would both invalidate a Maine law to that effect. One might think that the privileges and immunities clause of Article IV, Section 2 of the U.S. Constitution (as opposed to the privileges and immunities clause of the 14th Amendment) might also invalidate this law (e.g., it also prohibits residents of another state from obtaining occupational licenses in a state). But, this is not the case, because the U.S. Supreme Court held in Paul v. Virginia, 75 U.S. 168, 180 (1868), that corporations are not protected by the privileges and immunities clause. See generally, here. This doesn't mean that Maine couldn't regulate foreign corporations in some manner that doesn't unduly discriminate against out of state corporations. For example, most states require out of state corporations that do business in that state to pay a small fee and make a simple filing with the Secretary of State of that state authorizing them to do business in that state as a precondition to filing lawsuits or counterclaims seeking relief in their state's courts. But, this is far from a denial of the very existence of the out of state corporation and doesn't, for example, prohibit the out of state corporation from defending itself against suits brought against it in that state's courts. Likewise, it does not prohibit an out of state corporation from owning property or from affording limited liability protections to its owners.
Yes, such as this limitation on free speech. Initially, the limitation was "Clear and Present Danger" test (Schenk v. United States, 1919) which held that speech inciting lawless action was not protected speech and thus could be crimilized speech (i.e. Schenk publishing anti-draft fliers during World War I, which advocated draft dodging which at the time was a crime under the Espionage act of 1917). This was later over ruled to the "Bad Tendency" test which allowed for advocacy of criminal actions to be criminilized (Whitney v. United States, 1927. Whitney was accused of helping establish the American Communist Labor Party (ACLP), which held as a party platform the violent overthrow of the U.S. Government in favor of one advocated by the ACLP. This is standard to most Communist Parties at the time around the world. The difference between Schenk and Whitney was that Schenk actively called for a criminal action, where as Schenk was speaking of a future action following other party successes). This was overturned again by Brandenberg v. Ohio (1969) which introduced the "Imminent Lawless Action" test. This explicitly overturned Whitney in addition to other cases not mentioned such as Abrams v. United States (1915), Giltrow v. New York (1925), and Dennis v. United States (1951). It does not overrule Schenk, but it did cast doubt upon the decision made. In the case, KKK leader Brandenburg made a speech advocating for revenge against African Americans and Jews as well as expressing the belief that the United States government actively surpressed White Americans and needed to be opposed. He was charged as advocating the violent overthrow of the government. Imminent Lawless Action added the important componant that the violation must be advocacy of lawless action (revenge against racial minorities) must have a definite future date (like "tonight", "tomorrow", or specific time and date) and a vague future time will not count. And must show intent to break the law (Brandenburg did not specifically intend to break the law... he wanted it changed so it would not be legal before he took action). Additionaly, they found that the mere advocacy of resisting the government did not have any language componant that suggested violent resistance. Brandenburg, as discussed, overturned the reaffirmed B and put Schenk on some shaky ground as parts of Shenk were still relevant (Schenk first introduced that Free Speech was not without restrictions, but some of the case law was not relevent anymore, as Whitney used it as a basis in that decision, as did to a limited extent Dennis, which didn't work well with Whitney for other reasons. It should be pointed out that the Supreme Court does not typically take cases that wholly reaffirm past cases. Typically, their rulings are to clarify situations in a previous case that are not stated by the current extant rulings. For example, if the Supreme Court took a case that called Roe v. Wade into question, the case would more likely test whether Roe allows for a particular practice that isn't all that clear in Roe. It may affirm that Roe is still law, but the new case is not consistent with Roe, which will place a restriction on Roe, but not, figuratively, (pardon the pun) throw the baby out with the bath water.
Why has this never been interpreted by SCOTUS? It has never been interpreted by any court, because the interpretation you're advocating is nonsensical, and nobody has ever tried to advance it in any court. Therefore, no court has had an opportunity to rule on it. Congress, however, has (at least implicitly) interpreted this clause to mean that all natural-born citizens are eligible to be president if they also fulfill the other requirements, regardless of when they were born, so that is the prevailing interpretation unless someone manages to challenge the interpretation either before congress or in a court. If such a challenge is made then there will be an explicit ruling.
That depends what the issue is. On constitutional issues, and on issues of federal law (which do come up in state cases) , they are binding precedent, at least in that circuit for an appeals court opinion, and in the whole US for a Supreme court opinion. District court opinions are not generally binding unless upheld on appeal. On matters of state law, the state's own highest court is the final word, but a federal opinion could be at least as persuasive as one from a different state. to the best of my understanding one does not use the term &quot;estoppel&quot; to describe the effect of a previous judgement by a different court. If it is in the same case and not on appeal, the term is Res judicata (&quot;A thing (already) judged&quot;). If it is a general matter of adhering to clear precedent, the term Stare decisis (“to stand by things decided.” ) would be used.
Why do other countries, like America, not allow this? It is the way that U.S. courts have interpreted the constitutional amendment requirement and reflects a policy judgment that letting someone go free now and then is better than frequently forcing someone to be tried more than once. That value judgment flowed from concerns about and fear and skepticism of the British colonial criminal justice system and the Star Chamber in England with which they were familiar. The U.K., Australia, Canada, and New Zealand didn't have an independence revolution in their history to create the same kind of deep distrust of authority, especially in the criminal justice area. The U.S. was founded by terrorists. Few other former British colonies were. Quoting Dale: &quot;As a constitutional protection, legislative change like this is not available in the United States.&quot; Is that really true and can someone expand on this? When the courts determine that the constitution requires something it can't be changed with ordinary legislation. Either the constitution needs to be amended to change it (which is very hard), or the courts can change their interpretation (which is unlikely in an area so settled in the law and which is relatively uncontroversial between liberals and conservatives in the U.S.). If it is, this is a big problem in my opinion. The powers that be in the U.S. don't agree. This kind of case is exceedingly rare. And, there are much bigger problems with the system that obscure that one. Also, the dual sovereignty doctrine allows federal prosecutions in some wrongful acquittals that really matter (e.g. for civil rights violations by law enforcement).
The various news stories are somewhat unclear about what this bill actually does, so let us look at the text of the bill. The bill would (in addition to other changes not specifically connected with sexual identity or orientation) create section 1001.42 (8)(c)(3), reading: A school district may not encourage classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students. Exactly what it means for &quot;A school district&quot; to &quot;encourage classroom discussion&quot; is less than clear. If such discussion is not on the syllabus, nor suggested by the administration, but a teacher starts it, would this law ban it? Note that no penalty is specified for violation, although parental suits against a school district are authorized by the new subsaection 1001.42 (8)(c)(4). On its face the bill appears to prohibit the district from &quot;encouraging&quot; any such discussion in the primary grades (K-3 it seems), and from encouraging it if such discussion is not &quot;age-appropriate&quot; in other grades. As to the question of whether this bill, if it becomes law (as seems likely) would violate anyone's constitutional rights, that is a bit tricky. Teachers and students both have First Admendment rights even during school (see Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) for the key case) but this bill does not purport to prohibit a teacher from making any particular statement. The state does have considerable authority to regulate the curriculum of schools, particularly public schools, and what shall occur there. How this provision would be enforced, and what sort of speech, if any, was actually prohibited under it would probably be important in any lawsuit over its constitutionality. A law that prohibited any mention of sexual identity in school would probably be unconstitutional, but this bill does not claim to do that. If it does that in practice, that would probably weigh against it.
There seems to be no current applicable prohibition state law in Iowa in Iowa Code 39A, the Election Misconduct and Penalties Act. It is also not at all clear that precinct caucuses count as "elections" as applicable to the sections with criminal prohibitions (the precinct caucus does not appear to constitute a "primary election" under Iowa law).