There is no doubt that the opinion and outcome in Milligan is both unexpected and quite remarkable. But what makes Milligan remarkable for me is its utter conventionality. By and large, Milligan is a fairly straightforward application of precedent, doctrine, and legal analysis.
The majority applied the correct standard of review to the lower court’s findings of fact, which ought not be disturbed unless clearly erroneous. The majority applied its prior precedents, particularly Thornburg v. Gingles, almost mechanically. The recitation and deployment of legislative history was fairly standard. There were no convoluted interpretations of the statutory text. There were no gaslighting quips about race. Instead, the Court recited the Shaw/Miller line that there is a difference between racial awareness, which is necessary if we are to give full effect to section 2, and racial predominance, which violates the Constitution. There were no disingenuous attempts to restrict the power of Congress. Instead, we get a reaffirmation of the powers of Congress anchored in prior precedents.
In the last substantive paragraph of the opinion, Roberts writes that the outcome of the case is determined by “a faithful application of our precedents and a fair reading of the recored before us.” It is remarkable that this statement is in fact true. It has been such a long time since I’ve expected a majority of the Court to fairly apply its prior voting rights precedents, to interpret the VRA without malice, and to read the record fairly that I have forgotten what that looks like. It would be naive to get used to it. Eventually, they will square up to the stare decisis question. So, we should profit from the reprieve. But it is remarkable that a conventional legal analysis can elicit surprise, even delight.
“The California Democrat is surrounded by a large retinue of aides at all times, who tell her how and when to vote, explain what is going on when she is confused, and shield her from the press and public.” Story in the New York Times.
Registration is free and here. Here’s the description:
The Elections & Voting Information Center (EVIC) at Reed College has conducted a survey of local election officials (LEOs) for the past 4 years that provides local officials with an important and timely opportunity to weigh in on issues of concern in the profession. The LEO Survey is a vital resource for election administrators, policy makers, and researchers to understand local election administration in the U.S. and create space for LEOs to be heard in local, regional, national, and international discussions about electoral integrity, administration, and reform in America. Join Dr. Paul Gronke, founding director of EVIC, as he discusses the findings of the LEO Survey project. Colorado Election Director Judd Choate will moderate.
Trump plays by rules afforded no other candidate. He might luck out again with a large field in 2024.”
Will the 2024 Republican Primary be like the 2016 primary? This story from Politico.
Story here. Paxton is suspended from office. (Thanks to Hugh Brady for the correction). He now awaits a trial by the state Senate.
This fascinating New York Times post-mortem on the Dominion defamation lawsuit against Fox. If your interest is Election Law and Civil Procedure, this is an absolute must-read.
Aaron Navarro has this story for CBS News. From the article:
Campaign finance experts called the move “unprecedented” and had mixed reactions on if it violated FEC regulations.The transfer of “hard” campaign dollars — money raised under federal fundraising limits — from a super PAC to a campaign has not ever been tried, largely because different laws govern the two types of fundraising entities.
But in this case, Paul Seamus Ryan, a campaign finance expert, told CBS News that Never Back Down is “seemingly circumventing” a prohibition on super PACs directly transferring donations to the campaign, by using the separate draft committee PAC.
“Any way you slice it, this is an unprecedented fundraising tactic,” he said.
Professors Hellman and Gilbert has this article, Political Corruption, forthcoming in the Oxford Handbook of American Election Law (Eugene Mazo, ed.). The abstract:
This chapter studies political corruption and its many relationships to the law of democracy. It begins with bribery laws, which forbid officials from selling official acts. Federal bribery law is circular, reflecting uncertainty and disagreement around the concept of bribery itself. Next, the chapter studies campaign finance regulations, which raise First Amendment concerns but are nevertheless often justified on anti-corruption grounds. Then the chapter examines vote buying, which relates to the secret ballot and the complicated connections between corruption and publicity. The chapter addresses the constitutional dimensions of corruption, including its role in impeachment and the Emoluments Clauses, and it concludes with a discussion of the appearance of corruption, a concern that surfaces in many areas, including judicial recusal and misuse of office. The law of political corruption is often vague, and scholars disagree about the very nature of corruption. This leaves much authority in the hands of the actors, including judges, empowered to define corruption in practice.
David Ettinger blogs about it here.
More from Ivonne Wingett Sanchez here.
This Washington Post story by Molly Hennessy-Fiske. The lede:
The Texas House plans to vote Saturday on whether to impeach Attorney General Ken Paxton, presaging a potential state Senate trial that could lead to the ouster of one of the fiercest opponents of the Biden administration and an architect of conservative Texas policies adopted by other red states.
A Republican-led House investigating committee this week unanimously recommended impeaching Paxton (R) on 20 articles, including bribery, unfitness for office and abuse of public trust. The committee said it began investigating Paxton in March, after he requested $3.3 million in taxpayer funds to end a lawsuit by former staffers who accused him of retaliation.
Zach Montellaro of Politico with this report on the partisan divide on voter confidence. A notable paragraph from the story:
That growth comes almost entirely from Republicans, even as a dramatic partisan gap remains. Democrats’ confidence in the nationwide count was virtually unchanged — 93 percent in 2020 to 92 percent in 2022. Republicans grew 20 points — to 42 percent — in 2022, still short of a majority.
This story from Politico‘s Kyle Cheney. A key paragraph from the story:
“You, sir, present an ongoing threat and a peril to this country, to the republic and to the very fabric of our democracy,” said U.S. District Court Judge Amit Mehta, characterizing Rhodes as a uniquely powerful driver of the threat to democracy that day. “You are smart, you are compelling, and you are charismatic. Frankly, that is what makes you dangerous.”
This story from the New York Times by Tracey Tully and William K. Rashbaum. Here’s the lede:
Federal prosecutors and the F.B.I. are investigating whether Senator Robert Menendez or his wife received unreported gifts of a luxury car and an apartment in Washington from a halal meat company that is also the focus of a criminal inquiry, two people with knowledge of the matter said on Thursday.