That’s the headline of this Houston Chronicle article, but the body of the article (which is behind a paywall) notes that there is a disagreement among experts on the point. Because the podcast payments went to a PAC, there’s a complaint filed with the FEC that Cruz violated campaign finance laws by soliciting money for the PAC.
“Cash-strapped election offices have fewer resources after bans on private grants”
Matt Vasilogambros for Stateline:
“This month, Wisconsin joined 27 other states that have banned or restricted local governments’ use of private donations to run cash-strapped election offices, buy voting equipment or hire poll workers for Election Day.
“All of the state laws came in the past four years, pushed by conservative lawmakers and activists who claim that Democratic voters disproportionately benefited from hundreds of millions of dollars in grants primarily funded by Facebook founder Mark Zuckerberg and his wife, Priscilla Chan, during the 2020 presidential election.
“Courts and federal regulators have rejected those claims, but the debate over the role of outside money reveals a broader worry among election experts, who say there are significant shortcomings in local government funding of election offices. That includes not just Election Day duties and vote counting, but also the year-round administrative work of maintaining voter rolls and taking care of and updating voting equipment. …
“Money from Congress has been limited. This year, congressional leaders agreed to provide $55 million in election grant funding for states to distribute locally. That is around as much as Los Angeles County alone spent conducting a gubernatorial recall election in 2021. …
State money for elections varies widely. Lawmakers in some states do not allocate any of their budget to local election officials. …
“Other states do allocate some local election funding in their budgets, but often not at a level that would allow for major equipment replacement, said Matthew Weil, executive director of the Democracy Program at the Bipartisan Policy Center, a D.C.-based think tank.”
I concur with this sentiment expressed by Matt: “I don’t necessarily disagree with banning private funding in elections. But that does require that counties, states and the federal government step up and fund elections at the levels they need to provide the services that voters have come to expect.”
If funding falls below a level where it becomes impossible for the government to conduct the election, would that constitute a constitutional violation? A theory of this sort was pursued in Ohio after its debacle of a performance in 2004, and it survived a motion to dismiss. (As I recall, the case was settled after Jennifer Brunner became Ohio’s Secretary of State, and so the claim never went to trial on the merits.) As anyone who has studied or been involved in school funding litigation, suing the government for failure to provide adequate funds for an essential public service is extremely challenging–but not altogether impossible. It would seem a violate of the federal Constitution, as interpreted in Bush v. Gore, for a state to hold a popular vote for the appointment of its presidential electors, but then fail to provide adequate funding for all the state’s eligible voters to participate in the popular vote in a meaningful way. As a practical matter, it would be difficult to proof that funding was so inadequate as to essentially deprive some voters, but not others, of an opportunity to cast a ballot–and thus cause those voters to end up being disenfranchised. But at some point, the lines at polling places may be so long because of inadequate resources to constitute functional disenfranchisement. It’s a line-drawing problem.
Foreign Affairs Reviews “A Real Right to Vote” and the Lessig/Seligman Book
“Hand-counted ballots, voter ID rules: How GOP lawmakers want to change Ohio elections”
“The bill’s prospects are uncertain. Secretary of State Frank LaRose said it includes some good ideas, but other parts are entirely unworkable or need significant revision. …
“DeWine spokesman Dan Tierney said it’s important to maintain confidence in elections but added that lawmakers can’t “keep going back to that well with further bills dealing with the same thing in a different way without different fact patterns.” The Ohio Association of Election Officials is still reviewing House Bill 472, said the group’s executive director, Aaron Ockerman.”
“Kristi Noem Refuses to Say Whether She Would Have Certified the Election on Jan. 6”
N.Y. Times reports. The country shouldn’t be in the position where a sitting governor and potential vice-presidential nominee won’t say that Mike Pence did the right thing by accepting Biden’s valid Electoral College victory, but unfortunately that’s where we are right now.
Why It Matters Legally Whether We Conceive of the Trump Case as One of “Election Interference”
Jed Handelsman Shugerman in NYT oped:
About a year ago, when Alvin Bragg, the Manhattan district attorney, indicted former President Donald Trump, I was critical of the case and called it an embarrassment. I thought an array of legal problems would and should lead to long delays in federal courts.
After listening to Monday’s opening statement by prosecutors, I still think the Manhattan D.A. has made a historic mistake. Their vague allegation about “a criminal scheme to corrupt the 2016 presidential election” has me more concerned than ever about their unprecedented use of state law and their persistent avoidance of specifying an election crime or a valid theory of fraud….
In stretching jurisdiction and trying a federal crime in state court, the Manhattan D.A. is now pushing untested legal interpretations and applications. I see three red flags raising concerns about selective prosecution upon appeal.
First, I could find no previous case of any state prosecutor relying on the Federal Election Campaign Act either as a direct crime or a predicate crime. Whether state prosecutors have avoided doing so as a matter of law, norms or lack of expertise, this novel attempt is a sign of overreach.
Second, Mr. Trump’s lawyers argued that the New York statute requires that the predicate (underlying) crime must also be a New York crime, not a crime in another jurisdiction. The Manhattan D.A. responded with judicial precedents only about other criminal statutes, not the statute in this case. In the end, they could not cite a single judicial interpretation of this particular statute supporting their use of the statute (a plea deal and a single jury instruction do not count).
Third, no New York precedent has allowed an interpretation of defrauding the general public. Legal experts have noted that such a broad “election interference” theory is unprecedented, and a conviction based on it may not survive a state appeal.
AP:
Lead prosecutor Matthew Colangelo wasted little time during opening statements tying the case to Trump’s campaigning during his first run for the presidency. He said the payments made to Stormy Daniels amounted to “a criminal scheme to corrupt the 2016 presidential election.”
Whether the jury accepts that connection will be pivotal for Trump’s fate. The presumptive GOP nominee faces charges related to falsifying business records that would typically be misdemeanors unless the alleged act could be tied to another crime. Prosecutors were able to charge them as felonies because they allege that the false records were part of an effort to cover up state and federal election law violations — though that’s still not the type of direct election interference that Trump is charged with elsewhere….
ome legal experts monitoring the cases against Trump said they were skeptical of connecting the payments to a form of “election interference.” Doing so also runs the risk of diminishing the gravity of the other charges in the public mind.
Richard Painter, a University of Minnesota Law School professor and former associate White House counsel during the George W. Bush administration, said he believed the facts of the case met the evidence needed to determine whether a felony had been committed that violated campaign law, but added, “The election interference part, I have a little bit of trouble on this.”
Richard Hasen, a UCLA law school professor, said the New York case does not compare to the other election-related charges Trump faces.
“We can draw a fairly bright line between attempting to change vote totals to flip a presidential election and failing to disclose embarrassing information on a government form,” he wrote in a recent Los Angeles Times column.
In an email, Hasen said New York prosecutors were calling the case election interference “because that boosts what may be the only case heard before the election.”
Some said prosecutors’ decision to characterize the New York case as election interference seemed to be a strategy designed to raise its visibility.
“When (Manhattan District Attorney) Alvin Bragg calls it an election interference case, that’s more of a public relations strategy,” said Paul Butler, a professor at Georgetown Law and former federal prosecutor. “I think there was concern that people were looking at the other prosecutions and they weren’t discussing the Manhattan case.”…
That means prosecutors usually need evidence that the defendant was an expert in the law, was told what he or she was doing was illegal, or told someone else to ignore the law. Some lawyers believe that may explain why federal prosecutors never charged Trump with the campaign finance crime that Cohen admitted to working with Trump to commit.
“I assume that’s why SDNY didn’t indict Trump,” Eliason said, referring to the U.S. attorney’s office in the Southern District of New York. “I think the willfulness would have been a big hurdle to charging Trump himself.”
Smith said the issue in this case, as in Edwards’, isn’t just whether the defendant had a general understanding of campaign finance law, but could really have known for sure that what he was doing was illegal. “The strongest argument for Trump is that in fact there is quite a bit of controversy over whether this is illegal. Look at the FEC’s own rulings,” Smith said.
It’s unclear how Bragg’s prosecutors would meet that burden or if the judge will require them to. Pretrial motions didn’t really tee up the issue. It is likely to arise as the lawyers debate jury instructions or in a motion the defense typically makes asking the judge to toss the case after the prosecution’s witnesses have testified.
Eisen said he thinks Justice Juan Merchan will apply a lower standard in the state prosecution. “It’s so much easier than in federal court,” Eisen said.
However, there’s a risk to allowing prosecutors to get a conviction without having to prove that Trump knew he was breaking the law: That issue could be strong fodder for an appeal and might lead to any guilty verdicts against Trump being overturned.
“I think the likelihood of a conviction is quite high, quite strong,” said Eliason. “On appeal, that’s where some of these issues come up.”
Jed Shugerman on what’s wrong with Bragg’s case against Trump
N.Y. Times opinion column explaining the prosecution’s overly expansive conceptive of “election fraud”:
“Mr. Bragg has adopted a weak theory of “election interference,” and Justice Juan Merchan described the case, in his summary of it during jury selection, as… Continue reading
“New Group Joins the Political Fight Over Disinformation Online”
N.Y. Times reports on the formation of American Sunlight Project by Nina Jankowicz and Carlos Álvarez-Aranyos:
“The inception of the group, the American Sunlight Project, reflects how divisive the issue of identifying and combating disinformation has become as the 2024… Continue reading
“Republicans are starting to worry about RFK Jr.”
POLITICO reports on new polling that suggests RFK Jr. might pull support from Trump as well as Biden. Although the story doesn’t say so, the key point should be that a well-designed electoral system wouldn’t let a third-party or independent… Continue reading
“An appeals court dismisses charges against a Michigan election worker who downloaded a voter list”
AP reports:
“The court’s conclusion: James Holkeboer’s conduct was improper but not a crime.
He was charged with election fraud. But Holkeboer’s lawyers pointed out that the state law used by prosecutors only bars acts that change the… Continue reading
“As Meta flees politics, campaigns rely on new tricks to reach voters”
WaPo:
After years of pitching its suite of social media apps as the lifeblood of campaigns,Meta is breaking up with politics. The company has decreased the visibility of politics-focused posts and accounts on Facebook and Instagram as well as imposed… Continue reading
“Tony Evers weighs in on security threats facing Wisconsin elections chief Meagan Wolfe”
Milwaukee Journal-Sentinel. The focus of the story is “Trump’s decision to attack Wisconsin Elections Commission administrator Meagan Wolfe.” Some details:
“Meagan Wolfe will try and steal another election,” Trump said in an interview earlier this month with conservative radio … Continue reading
“Supreme Court rejects Kari Lake, Mark Finchem in machine voting lawsuit, ending legal challenge”
Arizona Republic. No surprise: “Legal experts had predicted the court would not exercise its discretion to add the case to its docket, citing well-established legal precedent and the court’s low acceptance rate.” Moreover:
“U.S. District Judge John Tuchi dismissed their … Continue reading
“Here’s how fusion voting helps to elevate diverse voices in Kansas”
Op-ed by the leaders of the new United Kansas party. For anyone who has been following the advocacy for fusion voting over the last couple of years, the arguments in the op-ed will be familiar. For example, the new party’s… Continue reading