Virtue and Institutions

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A new Common Ground Democracy essay, drawing upon Rick Pildes’s work, to discuss why it’s wrong to rely solely on a hope for increased civic virtue, among either politicians or voters, to protect democracy from authoritarianism. Instead, institutional reforms of the kind that Rick advocates in his recent Dunwody lecture are necessary to restore a Madisonian equilibrium to America’s political system. As the essay explains, a Madisonian equilibrium exists when the system’s institutions are well-calibrated to the society’s political culture, including its degree of civic virtue. The problem in the United States today is that, although a Madisonian equilibrium of this nature exhibited for several decades after World War II (when partisan polarization was low and civic solidarity high), this equilibrium has been destabilized by various cultural forces including the rise of intense partisan polarization. To remedy this problem, we must endeavor both to reinvigorate civic virtue within our political culture and make institutional adjustments suitable for the amount of civic virtue–and, its enemy, partisan tribalism–prevalent in our present political culture. Rick’s lecture prioritizes the institutional reforms that have the greatest change of being most effective in the near term on this front.

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“Cyberattack forces Georgia county to sever connection to state voter registration system”

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Disturbing development as reported by CNN:

“Georgia’s Coffee County suffered a cyberattack this month that forced the county to sever its connection to the state’s voter registration system as a precautionary measure, three sources familiar with the matter told CNN.

“Investigators believe the incident was a ransomware attack, in which cybercriminals typically lock computer systems and demand a ransom, the sources said.

“The federal Cybersecurity and Infrastructure Security Agency (CISA) informed the county of the incident on April 15, and federal and county officials are trying to determine who carried out the hack, according to the sources.

“A spokesperson for the office of Georgia’s secretary of state confirmed the cyberattack and the county’s response.

“The voter registration system, known as GARViS, is a relatively new technology that state officials have touted as a way of ensuring millions of Georgian voters are registered accurately. There was no indication that GARViS was infiltrated by the hackers, and Coffee County’s network connection to GARViS was severed as a precautionary move, the sources said.”

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Adam Liptak’s follow-up analysis of the Court’s immunity argument

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N.Y. Times. Adam quotes Pam Karlan, Mellisa Murray, and Michael Dorf, as well as excerpts from the oral argument. For example:

‘In the real world, Professor Karlan said, “it’s really hard to imagine a ‘stable democratic society,’ to use Justice Alito’s word, where someone who did what Donald Trump is alleged to have done leading up to Jan. 6 faces no criminal consequences for his acts.”

‘Indeed, she said, “if Donald Trump is a harbinger of presidents to come, and from now on presidents refuse to leave office and engage in efforts to undermine the democratic process, we’ve lost our democracy regardless what the Supreme Court decides.”’

The implication of the column is that the Justices were being irresponsible in “averting their eyes from Mr. Trump’s conduct.” My own take is that there is a more charitable interpretation of the Court’s questioning. The question of delineating the scope of potential presidential immunity from criminal prosecution is a serious one, even if in this particular case the rejection of an immunity claim should be straightforward (as I and others have argued). To be sure, it would be theoretically tenable for the Court to categorically reject any doctrine of presidential immunity from criminal prosecution (after the president leaves office) on the ground that, unlike the Speech and Debate Clause that confers a form of legislative immunity, there is no comparable clause in the Constitution conferring an equivalent immunity for the Executive Branch. That textualist argument seems to be part of Jason Willick’s view of how the case should be decided:

“A majority on the Supreme Court seems inclined to think some kind of immunity is necessary to nudge American democracy in the right direction. The best counter would have been that the fate of democracy belongs to the people and their elected representatives, who can destroy it if they are determined to — and that when the Constitution is silent, the Supreme Court should stay out of the way.”

But as Willick himself recognizes, a majority of the Court seems unwilling to reject the idea of presidential immunity completely. Even Michael Dreeben’s self-described “more nuanced” analysis would rule off-limits criminal prosecution of a former president in certain circumstances–and, crucially, provide for interlocutory appeal before trial to litigate the immunity issue (whether or not the word “immunity” is used to describe the doctrine).

Thus, back to Liptak’s concern that the Court “seems likely to say that at least some of Mr. Trump’s conduct was part of his official duties and so subject to some form of immunity.” But the second part of that sentence doesn’t necessarily follow from the first. As I suggested last night, the fact that some of Trump’s allegedly criminal conduct was official and not private in nature does not mean that it must be granted immunity; instead, even under a properly calibrated immunity doctrine, that conduct can–and-should–be deemed to be so objectively unreasonable to lack the benefit of any immunity doctrine the Court might adopt.

Liptak, among many others, fears that the application of the Court’s newly-minted immunity doctrine would entail a remand that prevents a trial occurring before the election. But, again, that’s not necessarily the case if (as the Washington Post and I argue) the Court is willing to declare, as it should, that as a matter of law the allegations in the indictment, even to the extent that they involve official conduct, fall outside the scope of the immunity that is available to presidents who act reasonably.

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Tenth Circuit rejects challenge to Colorado tax-related ballot initiative language requirements

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From Advance Colorado v. Griswold:

In 2021, the Colorado state legislature passed The Ballot Measure Fiscal Transparency Act (“HB 21-1321”), which requires certain language be included in state-imposed titles of citizen-initiated ballot measures. Specifically, if the proposal contains a tax change affecting state or local revenues, the measure’s title must incorporate a phrase stating the change’s impact on state and district funding priorities. In 2023, Appellants (collectively, “Advance Colorado”) proposed two tax reduction measures subject to the provisions of HB 21-1321. After Colorado’s Ballot Title Setting Board (the “Title Board”) included the mandated transparency language in each initiative’s title, Advance Colorado filed suit challenging HB 21-1321 as unconstitutionally compelling its political speech. The district court denied the corresponding request for a preliminary injunction, concluding the titling process qualified as government speech and, therefore, Advance Colorado was not likely to succeed on the merits of its claims. We agree that HB 21-1321’s requirements do not result in improperly compelled speech under the First Amendment of the United States Constitution.

And from later in the opinion (lightly revised):

The Colorado Title Board has existed and set ballot titles in a similar manner for over eighty years. As is the case today, when it was first formed the Title Board was solely responsible for setting a measure’s title without the influence of proposal advocates. The long history of the Title Board’s practices reflects the substantial control the government asserts over initiative titles and its legitimate interest in providing a standardized process for presenting measures to voters. Titling is statutorily separated and preserved as an express function of the government under Colorado law. Despite the catalytic role played by citizens in the initiative process, ballot titles are fully and exclusively crafted by the government through the Secretary of State’s office. Indeed, “[t]he fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum provider.” Walker [v. Texas Div., Sons of Confederate Veterans, Inc.]. Advance Colorado has failed to offer any evidence refuting this history of substantial government control.

Advance Colorado is also unable to demonstrate that . . . the general public perceives initiative titles to be the speech of private citizen-advocates. . . .

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