“The Ground Is Shifting Under Biden and Trump”

political parties, political polarization

Tom Edsall NYT column:

How has the ascendance of well-educated, relatively affluent liberals among Democrats, alongside the dominance of non-college voters in the Republican coalition, altered the agendas of the two parties?

Are low-turnout elections and laws designed to suppress voting now beneficial to Democrats and detrimental to Republicans? Would the Democratic Party be better off if limits on campaign contributions were scrapped?

Nicholas Stephanopoulos, a law professor at Harvard, contends that the answer to these last three questions is changing from no to yes.

In a paper posted last week, “Election Law for the New Electorate,” Stephanopoulos argues that “the parties’ longstanding positions on numerous electoral issues have become obsolete. These stances reflect how voters used to — not how they now — act and thus no longer serve the parties’ interests.”…

The column adds a number of reactions from election law scholars, including me, to Nick’s provocative paper. I’ll have more to say on this broader topic in a big piece posting soon.

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Supreme Court on 6-3 Vote Splitting Conservative and Liberal Justices Makes It Easy to Give Gifts to State and Local Officials to Thank Them for Their Official Acts; Conservative Majority Relies on Legislative History in Part

bribery, Supreme Court

I’ve been following Snyder v. United States closely, not only because I am interested in bribery and illegal gratuities law but also because I based my Legislation course final exam on the case.

To me, it presents a fascinating and close question, and I’m not sure how I would have voted had I been asked what to do. Both the text and legislative history arguments can point in either direction. It is notable, however, that the conservative majority that usually rejects legislative history as unreliable relies on legislative history here to describe the purpose of an amendment to the statute. Majority opn. at 4-5 (“In 1986, Congress amended §666 and thereby avoided the law’s “possible application to acceptable commercial and business practices.” H. R. Rep. No 99–797, p. 30 (1986); see 100 Stat. 3612–3613.”). See also dissent at The House Report the majority quotes as explicating §666 confirms that §666 was meant to track §215—not §201(b), as the majority claims. See H. R. Rep. No. 99–797, at 30, n. 9.”).

How did THIS get by the textualists on the Court (including J. Kavanaugh, who wrote the decision)?

On the merits, this case is likely to increase state and local graft on the margins. Those who engage in outright bribery and take federal funds can still be prosecuted for bribery under section 666. But those who take illegal gratuities and avoid the magic words of a quid pro quo are more likely to be off the hook. Putting this case together with other recent ones, like McDonnell, it’s becoming harder and harder for federal prosecutors to pursue graft at the state and local level.

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Supreme Court on 6-3 Vote Rejects Social Media Government “Jawboning” Claim on Standing Grounds, But Strongly Suggests Claims of Jawboning were False

cheap speech, social media and social protests, Supreme Court

You can find the majority opinion in Murthy v. Missouri of Justice Barrett, along with the dissent of Justice Alito (joined by Justices Gorsuch and Thomas) at this link.

The claim was that government agencies pressured or coerced social media platforms including Facebook and Twitter to remove content (related to the election, Covid, etc.). This what the term “jawboning” refers to.

The Court did not opine on what would have to be proven in a jawboning case involving social media companies, because it held that none of the plaintiffs had standing: they did not show enough of a connection between the government‘s actions and plaintiffs’ injuries. As the majority opinion states: “the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content moderation policies before the Government defendants got involved.”

Given that the majority said it would not reach the merits of the jawboning question, it’s inclusion of footnote 4, casting aspersions on the ridiculous factfinding of the district court, was notable as a slam. This is arguably the most important part of the opinion:

The Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous. The District Court found that the defendants and the platforms had an “efficient report-and-censor relationship.” Missouri v. Biden, 680 F. Supp. 3d 630, 715 (WD La. 2023). But much of its evidence is inapposite. For instance, the court says that Twitter set up a “streamlined process for censorship requests” after the White House “bombarded” it with such requests. Ibid., n. 662 (internal quotation marks omitted). The record it cites says nothing about “censorship requests.” See App. 639–642. Rather, in response to a White House official asking Twitter to remove an impersonation account of President Biden’s granddaughter, Twitter told the official about a portal that he could use to flag similar issues. Ibid. This has nothing to do with COVID–19 misinformation. The court also found that “[a] drastic increase in censorship . . . directly coincided with Defendants’ public calls for censorship and private demands for censorship.” 680 F. Supp. 3d, at 715. As to the “calls for censorship,” the court’s
proof included statements from Members of Congress, who are not parties to this suit. Ibid., and n. 658. Some of the evidence of the “increase in censorship” reveals that Facebook worked with the CDC to update its list of removable false claims, but these examples do not suggest that the agency “demand[ed]” that it do so. Ibid. Finally, the court, echoing the plaintiffs’ proposed statement of facts, erroneously stated that Facebook agreed to censor content that did not violate its policies. Id., at 714, n. 655. Instead, on several occasions, Facebook explained that certain content did not qualify for removal under its policies but did qualify for
other forms of moderation.

Justice Alito, in contrast, found enough evidence of jawboning to find standing (and then a likely violation of the law by the government). He relied in part on a report from Jim Jordan’s “weaponization of government” committee in the House, something that itself is quite unreliable.

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“Barnes, Deal lead bipartisan initiative to fight election fraud lies in Georgia”

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AJC:

Some of Georgia’s most prominent bipartisan leaders are uniting behind an effort to bolster confidence in the state’s election system after years of damage from false claims and discredited conspiracy theories about widespread voting fraud in 2020.

The Democracy Defense Project launched its state-based program Tuesday helmed by two Democrats — former Gov. Roy Barnes and ex-Atlanta Mayor Shirley Franklin — and two Republicans — former Gov. Nathan Deal and ex-U.S. Sen. Saxby Chambliss.

The initiative is part of a nationwide effort to strengthen trust in election systems in politically competitive states. Organizers plan a media campaign in Georgia and other battlegrounds to “raise awareness of efforts to subvert elections across the country and help move us beyond polarizing rhetoric.”…

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“What Are the Usual Burdens of Voting?”

voting

Jim Fischer has posted this draft on SSRN (Georgia State U. L. Rev.) Here is the abstract:

When the Court in Crawford v. Marion County Election Board approved presentment of a government-issued photo identification asa requirement to vote, Justice Stevens compared the requirement to what he characterized as “the usual burdens of voting.” SinceCrawford was decided, the concept of “the usual burdens of voting”has been invoked numerous times as lawsuits have been brought challenging state practices that are claimed to unduly burden the ability of voters to vote.
In theory, “the usual burdens of voting” serve as a benchmark against which state conditions imposed on the ability to vote can be measured to determine if the right to vote has been infringed. Yet, despite numerous uses of the phrase, courts have generally left the phrase undefined. In essence, a benchmark exists, but the content, design, and dimensions of that benchmark are amorphous.
This Article examines the development of the “usual burdens of voting” concept by Justice Stevens in Crawford and its use in subsequent decisions. This Article looks at the evolution of voting in the United States to provide some context as to how voting burdens should be understood. This Article concludes with some observations regarding the usefulness of the phrase as a means for determining whether a condition associated with voting, such as a prohibition on providing food or water to those waiting to vote, can be reliably evaluated using “the usual burdens of voting” concept.

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