Derek T. Muller

Professor of Law

Email: dmuller@nd.edu
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Professor Derek Muller is a nationally-recognized scholar in the field of election law. His research focuses on the role of states in the administration of federal elections, the constitutional contours of voting rights and election administration, the limits of judicial power in the domain of elections, and the Electoral College.

He has published more than two dozen academic works, and his op-eds have appeared in the New York Times, the Los Angeles Times, and the Wall Street Journal. He has testified before Congress, and he is a contributor at the Election Law Blog. He is a co-author on a Federal Courts casebook published by Carolina Academic Press. He is also the co-reporter on a new Restatement of the Law, Election Litigation, an effort led by the American Law Institute.

Professor Muller graduated Notre Dame Law School summa cum laude in 2007. He teaches Election Law, Civil Procedure, and Evidence.

Courses Taught

• Civil Procedure
• Evidence 
• Election Law 

Scholarship

Principal Publications

Election Subversion and the Writ of Mandamus, 65 WILLIAM & MARY L. REV. __ (forthcoming 2023)

The Electoral Count Reform Act and the Original Public Meaning of the Twelfth Amendment, CASE WESTERN RES. L. REV. (forthcoming) (invited)

The Secret Sauce: Examining Law Schools That Overperform on the Bar Exam, 75 FLA. L. REV. 65 (2023) (with Christopher J. Ryan)

Faith in Elections, 36 NOTRE DAME J. L. ETHICS & PUB. POL’Y 641 (2022) (symposium)

Twenty-Third Amendment Problems Confronting District of Columbia Statehood, 2021 HARV. J.L. & PUB. POL’Y PER CURIAM 11 (2021)

Reducing Election Litigation, 90 FORDHAM L. REV. 561 (2021) (symposium)

Brnovich v. DNC: Election Litigation Migrates from Federal Courts to the Political Process, 2020– 2021 CATO SUP. CT. REV. 217

Electoral Votes Regularly Given, 55 GA. L. REV. 1529 (2021) (symposium)

Weaponizing the Ballot, 48 FLA. ST. U. L. REV. 61 (2021)

The Electoral College and the Federal Popular Vote, 15 HARV. L. & POL’Y REV. 129 (2020) (symposium)

Chameleon Congressional Districts, 64 ST. LOUIS U. L.J. 673 (2020) (symposium)

Nonjudicial Solutions to Partisan Gerrymandering, 62 HOWARD U. L.J. 791 (2019) (symposium)

The High Cost of Lowering the Bar, 32 GEO. J. L. ETHICS 307 (2019) (with Robert Anderson IV)

The Democracy Ratchet, 94 IND. L.J. 451 (2019)

Legal Quandaries in the Alabama Senate Election of 2017, 69 ALA. L. REV. 983 (2018)

What’s Old Is New Again: The Nineteenth Century Voter Registration Debates and Lessons About Voter Identification Disputes, 56 WASHBURN L.J. 109 (2017) (symposium)

“Natural Born” Disputes in the 2016 Presidential Election, 85 FORDHAM L. REV. 1097 (2016) (symposium)

Ballot Speech, 58 ARIZ. L. REV. 693 (2016)

Legislative Delegations and the Elections Clause, 43 FLA. ST. U. L. REV. 717 (2016) (symposium)

Perpetuating “One Person, One Vote” Errors, 39 HARV. J.L. & PUB. POL’Y 371 (2016) (solicited)

Scrutinizing Federal Electoral Qualifications, 90 IND. L.J. 559 (2015)
Winner: Pepperdine University School of Law Dean’s Award for Excellence in Scholarship, 2016 The Play in the Joints of the Election Clauses, 13 ELECTION L.J. 310 (2014) (peer reviewed)

Judicial Review of Congressional Power Before and After Shelby County v. Holder, 8 CHARLESTON L. REV. 287 (2013) (solicited)

Invisible Federalism and the Electoral College, 44 ARIZ. ST. L.J. 1237 (2012)

More Thoughts on the Compact Clause and the National Popular Vote: A Response to Professor Hendricks, 7 ELECTION L.J. 227 (2008) (peer reviewed) (solicited)

The Compact Clause and the National Popular Vote Interstate Compact, 6 ELECTION L.J. 372 (2007) (peer reviewed)

Casebook

ARTHUR D. HELLMAN, DAVID R. STRAS, RYAN W. SCOTT, F. ANDREW HESSICK, & DEREK T. MULLER, FEDERAL COURTS: CASES AND MATERIALS ON JUDICIAL FEDERALISM AND THE LAWYERING PROCESS (Carolina Academic Press, 5th ed. 2022)

Book Chapters

“Elector Qualifications Clause,” “Qualifications for Representatives Clause,” “The Elections Clause,” “Judge of Elections Clause,” “Presidential Electors Clause,” “Twenty-Third Amendment,” and “Twenty-Fourth Amendment,” THE HERITAGE GUIDE TO THE CONSTITUTION (3d ed.) (forthcoming)

“Ballot Access,” in THE OXFORD HANDBOOK OF AMERICAN ELECTION LAW (Eugene D. Mazo ed., Oxford University Press) (forthcoming)

“Simplifying Presidential Elections,” in THE BEST CANDIDATE: PRESIDENTIAL NOMINATION IN POLARIZED TIMES (Eugene D. Mazo & Michael R. Dimino eds., Cambridge University Press 2020)

Essays, Responses, & Notes

A Bully Pulpit Approach to Elections in the Early Biden Administration, 2021 U. ILL. L. REV. ONLINE: Biden 100 Days 166 (Apr. 30, 2021) (solicited)

Governing Elections Without Law, 100 B.U. L. REV. ONLINE 278 (2020) (solicited)

Restraining Judicial Application of the “Safe Harbor” Provision in the Electoral Count Act, 81 OHIO ST. L.J. ONLINE 221 (2020) (solicited)

Celebrating the Work of Professor Bob Cochran: An Introduction, 47 PEPP. L. REV. iii (2020) (symposium)

Cyber Interference in Elections and Federal Agency Action, HARV. L. REV. BLOG (Oct. 29, 2018) (solicited)

Three Divergent Election-Law Decisions in the Early Trump Administration, 2017 U. ILL. L. REV. ONLINE: Trump 100 Days (Apr. 29, 2017) (solicited)

Complexity Confronting State Judges and the Right to Vote, 77 OHIO ST. L.J. FURTHERMORE 65 (2016) (solicited)

Evenwel v. Abbott: A New Attempt to Define “One Person, One Vote,” GEO. WASH. L. REV. DOCKET (Apr. 5, 2016)

“Compact Clause,” 1 AMERICAN GOVERNANCE 355 (S. Schechter et al. eds., Macmillan 2016)

Disfavored Candidates and the Democracy Canon, 65 FLA. L. REV. FORUM 53 (2013) (solicited)

Note, “As Much Upon Tradition as Upon Principle”: A Critique of the Privilege of Necessity Destruction Under the Fifth Amendment, 82 NOTRE DAME L. REV. 481 (2006)

Testimony

U.S. Senate Committee on Rules and Administration, “The Electoral Count Act: The Need for Reform,” Aug. 3, 2022

U.S. Senate Committee on Homeland Security & Governmental Affairs, “Examining D.C. Statehood,” June 22, 2021

Works in Progress

Ballot Access Petitions Federal Judicial Clerkship Report of Recent Law School Graduates, 2020 Edition

Amicus Briefs

Amicus Curiae Brief of Professor Derek T. Muller in Support of Petitioners, Mazo v. Way, S. Ct., 22-1033

Amicus Curiae Brief of Professor Derek T. Muller in Support of Petitioners, Synod of Bishops of the Russian Orthodox Church v. Belya, S. Ct., 22-824

Amicus Curiae Brief of Professor Derek T. Muller in Support of No Party, Planned Parenthood v. Reynolds, Iowa S. Ct., 22-2036

Amicus Curiae Brief of Professor Derek T. Muller in Support of Respondents, Moore v. Harper, S. Ct., 21-1271

Amicus Curiae Brief of Professor Derek T. Muller in Support of Applicant, Graham v. Fulton County Special Purpose Grand Jury, S. Ct., 22A337

Amicus Curiae Brief of Professor Derek T. Muller in Support of Appellant, Fulton County Special Purpose Grand Jury v. Graham, 11th Cir., 22-12696

Amicus Curiae Brief of Professor Derek T. Muller in Support of No Party, Greene v. Raffensperger, 11th Cir., 22-11299

Amicus Curiae Brief of Professor Derek T. Muller in Support of No Party, Cawthorn v. Amalfi, 4th Cir., 22-1251

Amicus Curiae Brief of Professor Derek T. Muller and Professor Michael R. Dimino in Support of Appellant/Petitioner, Mazo v. New Jersey Secretary of State, 3d Cir., 21-2630

Amicus Curiae Brief of Derek T. Muller in Support of Neither Party, Chiafalo v. Washington and Colorado Department of State, S. Ct., 19-465 & 19-518

Amicus Curiae Brief of Derek T. Muller in Support of Neither Party, Baca v. Colorado Department of State, 10th Cir., 18-1173

Grant

2019, AccessLex: Co-Principal Investigator (with C.J. Ryan), The Secret Sauce: Evaluating Overperforming (and Underperforming) Law Schools on the Bar Exam

Shorter Works and Appearances

Founder & Blogger, EXCESS OF DEMOCRACY, Mar. 2013–present
Over 950,000 page views and 650,000 unique visitors since launch Named to the ABA ANNUAL BLAWG 100 in 2014, 2015, 2016, & 2017

Contributor, ELECTION LAW BLOG, July 2021–present
Over 250 posts on law and democracy issues, including topics on federal courts jurisdiction

Symposium: Brnovich, election-law tradeoffs, and the limited role of the courts, SCOTUSBLOG, July 6, 2021

Texas v. Pennsylvania Would Have Upended the Electoral College, Law & Liberty, Liberty Fund, Dec. 21, 2020

Symposium: #LookingBack: Whither Republican Party of Pennsylvania v. Boockvar?, ELECTION LAW BLOG, Nov. 8, 2020

Symposium: #2DaysOut: A Ballot Dispute in the Making?, ELECTION LAW BLOG, Nov. 1, 2020

Symposium: Leave courts out of presidential elector dispute, SCOTUSBLOG, Apr. 27, 2020

Politics as Usual, PUBLIC DISCOURSE, July 7, 2019

Symposium: Why not continue the political struggle in partisan-gerrymandering cases?, SCOTUSBLOG, Feb. 5, 2019

Diverging Supreme Court Trends May Leave Some Conservatives Out In the Cold, Law & Liberty, Liberty Fund, Dec. 20, 2018

A Future Justice Kavanaugh and Executive Privilege, Law & Liberty, Liberty Fund, July 3, 2018

Symposium on Gill v. Whitford: No closer to consensus, SCOTUSBLOG, June 18, 2018

Guest Blogger, PRAWFSBLAWG, Apr.–May 2018 ; Jan. 2013

Senate Rules May Not Block Roy Moore, Law & Liberty, Liberty Fund, Nov. 15, 2017

Guest, Tom Donnelly, The Debate Over President Trump’s Election Commission, We the People Podcast, National Constitution Center, Jul. 20, 2017

Federal Power Over Elections and the Twenty-Fourth Amendment, National Constitution Center’s Interactive Constitution, 2017

The Twenty-Fourth Amendment, National Constitution Center’s Interactive Constitution, 2017 (with Deborah N. Archer)

Guest, The Kobach fallout on election security, ELECTION LAW BLOG (Rick Hasen ed.), July 1, 2017

When bar exam scores go low, discipline rates go high, DAILY JOURNAL, June 7, 2017 (with Rob Anderson IV)

Speech Equality’s Crushing Weight, Law & Liberty, Liberty Fund, June 27, 2016

The Case for More Money in Politics, Law & Liberty, Liberty Fund, June 2, 2016

Guest, Who Decides If Ted Cruz Is Eligible to Be President?, ELECTION LAW BLOG (Rick Hasen ed.), Jan. 7, 2016

Guest, Jeffrey Rosen, Voting rights on trial in North Carolina, We the People Podcast, National Constitution Center, Jul. 22, 2015

One Man, One Vote in Texas, Law & Liberty, Liberty Fund, May 29, 2015

Guest, Oral Argument, Episode 61: Minimum Competence, May 15, 2015

Kerr v. Hickenlooper: Exploring the Tenth Circuit’s Dubious Legal Reasoning, JURIST - Forum, Mar. 31, 2014

Book Review, TARA ROSS, ENLIGHTENED DEMOCRACY, Law & Liberty, Liberty Fund, Oct. 16, 2012

What’s Really Going On in the NFL Head-Injury Lawsuit, Right Field, NATIONAL REVIEW ONLINE, June 7, 2012

Areas of Expertise

• Election Law
• Federal Courts
• Legal Education
• Civil Procedure