How to Prevent Republican State Legislatures from Stealing the Election

AUSTIN SARAT, DANIEL B. EDELMAN

Amherst College Associate Provost Austin Sarat and attorney Daniel B. Edelman explain the important role of Democratic governors in preventing Republican state legislatures from stealing the election. Sarat and Edelman describe a “nightmare scenario” in which Republican legislatures may try to strip the electoral votes of Pennsylvania, Wisconsin, Michigan, Georgia, Arizona, and Nevada, leaving Biden with 232 electoral votes compared to Trump’s 306. The authors call upon the governors of those states to defend the integrity of their states’ election results, insist that there have been no “election failures,” and, if necessary, submit to Congress their own elector lists.

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Kuykendall v. Texas

Docket: PD-0003-20

Opinion Date: November 11, 2020

Judge: Yeary

Areas of Law: Constitutional Law, Criminal Law

Appellant Kyle Kuykendall was charged in a single indictment with two separate instances of third-degree felony failure-to-appear. He was convicted on both counts and sentenced to concurrent ten-year sentences. He appealed, arguing that punishing him for both offenses violated Double Jeopardy (applicable to the states through the Fourteenth Amendment). Appellant argued that because he had been required to appear on a single occasion to answer for both charges against him, he could have only committed one offense when he failed to appear. The Court of Appeals agreed with this argument, holding that because Appellant failed to appear only once, he could only be punished once under the Double Jeopardy Clause. It vacated his conviction on the second failure-to-appear count. The State Prosecuting Attorney petitioned for discretionary review to challenge the appellate court's judgment. The Texas Court of Criminal Appeals reversed the Court of Appeals, finding that the failure to appear statute created as many actionable offenses as there were conditional releases according to the terms of which the actor failed to appear. In other words, the “allowable unit of prosecution” for the offense of failure to appear was the number of discrete conditional releases for which he was required to appear and did not: "it is not simply the number of times he failed to show up before some adjudicative body. In this case, when Appellant failed to appear at the combined setting, he committed two distinct offenses." The Double Jeopardy Clause of the Fifth Amendment was not violated.