Interesting Washington Post report on the front lines of the “voting wars”–in particular, the practice in Arizona of observers watching drop boxes and the role of local law enforcement in avoiding conflicts between the observers and voters.
The story contains links to body camera footage received through public records requests:
Watch: Body-camera footage shows Arizona deputies discuss, enforce election law on Oct. 21, 2022.
I was very fortunate to be able to attend this symposium at Harvard Kennedy School’s Ash Center for Democratic Governance and Innovation, where I presented the idea of a “Top 3” presidential election system based on Common Ground Democracy principles. I also spoke more broadly about the need to assure that the winner of a presidential election receives a majority, not merely a plurality, of votes–and cited examples of where the failure to have a majority-winner requirement caused a candidate to win who clearly did not have the support of a majority of voters. Other speakers focused on ideas for proportional allocation of electoral votes, among other possible reforms of the Electoral College system.
[This post has been updated.]
After a couple of hours of oral argument, it appears that the Supreme Court is unlikely to embrace either Donald Trump’s extreme position—that would seem to give immunity for a president who ordered an assassination of a rival or staged a coup—or the government’s position that a former president is not absolutely immune even for his or her official acts. Conservatives on the Court are going to make it hard to prosecute a former president for most crimes. But they are likely to reject some of the most extreme, insane, authoritarian arguments that were made by Trump’s lawyer.
The final opinion will likely come closer to the government’s position, but it will almost certainly result in a divided set of opinions (which take more time to draft) and a lot of work on remand to rework the results of the case. The bottom line is that Trump is likely to get what he wants—a further delay of this election subversion case, maybe pushing it to after the election. If that happens, the public won’t get the benefit of having a jury determine before the election if Trump tried to steal the 2020 election. Further, if Trump is elected in 2024, he can end this and the other federal prosecution against him. He also is likely to try to pardon himself. And the Supreme Court will be complicit in much of this.
From earlier:
I have called the federal case against Donald Trump for attempting to subvert the results of the 2020 U.S. presidential election perhaps the most important case in U.S. history, at least when it comes to our democracy. That case should have gone to trial last month, but the case got put on hold when Donald Trump filed an interlocutory appeal (that is, an appeal in the middle of trial proceedings) arguing that he is absolutely immune from any criminal prosecution for any acts he undertook as President. Trump lost that argument in the trial court and in the U.S. Court of Appeals for the D.C. Circuit. The Supreme Court agreed to hear the case, on a somewhat expedited basis, but not on the basis that Jack Smith, the special counsel, had asked for (he originally wanted the Court to leapfrog over the D.C. Circuit but the Court said no). Trump already may have effectively won by running out the clock so a trial could not happen before the election. This is the last argument day of the term, and I would not expect an opinion until the very end of the Supreme Court’s term in late June or early July, unless there’s movement to expedite following oral argument.
What I was listening for: how much is there a focus on Trump’s actions in trying to subvert the election? Is there a path to saying that at least such interference is not immune, leaving other immunity issues to another day? Is the Court going to be worried about a slippery slope of potential criminal prosecutions of former presidents after they leave office?
Below the fold you will find my notes that I took as argument went forward:
Continue reading Rick Hasen’s Live Blog of the Supreme Court’s Oral Argument Over Trump’s Claim of Immunity in the Federal Election Subversion Case (Updates completed)Worthwhile read on the role of Justice Bradley in the Hayes-Tilden dispute.
Today at 10am ET. Adam Liptak has a preview. One thing I’ll be looking for in the argument, from an election law perspective, is the extent to which the immunity issue focuses more narrowly on the specific context of alleged criminality in this case–Trump’s actions as an incumbent president to subvert the electoral process to give him a second term in office that he did not win according to the applicable rules–or instead focuses more broadly on the issue of presidential immunity from criminal prosecution in general (relating to such issues as the exercise of military authority as commander-in-chief). I continue to believe that much, if not all, of Trump’s conduct in an effort to subvert the electoral process was not even remotely part of his official duties under Article II as president, because Article II–and the rest of the Constitution–give an incumbent president absolutely no role to play in the Electoral College (and related) procedures concerning presidential elections. But whatever analytic route the Court takes to reach the conclusion that an incumbent president is not immune from attempting to steal from the electorate a second term he did not win, the Court ought to reach that conclusion as quickly as possible. As many others have observed recently, including Liz Cheney, this case could end up being one in which justice delayed is justice denied.