Order here. The order avoids the legal question of whether Kennedy could remove his name from the ballot, and instead argues that Kennedy wrongly sought mandamus (i.e., there’s no clear legal duty for the Secretary of State to remove his name), because the statute is, at best, silent about removal. Justices Zahra and Viviano offer a “blistering dissent,” per NBC News, including: “This sort of formalism would be unique in our law, which eschews reliance on the title of relief sought and looks at the substance of the request. And in any event, Kennedy sought injunctive relief here, one of the many things the majority conveniently overlooks.”
All posts by Derek Muller
“No, local election officials can’t block certification of results – there are plenty of legal safeguards”
I have this piece in The Conversation. It begins:
Some local election officials have refused to certify election results in the past few years. Georgia has new administrative rules that invite election officials to investigate results before certifying. And worries abound that election officials might subvert the results of the 2024 presidential election by refusing to certify the results.
While states may have different names or processes, certifying an election typically looks something like this: On election night, the local precincts close, and local election workers tabulate the vote; they affirm or attest that the precinct results are the proper tabulation and send those results to the county.
In a matter of days, the county election board assembles the results across all the county’s precincts, tabulates them and certifies the county’s result. Those results are sent to the state election board, which adds up the results from all the counties and certifies the state’s winners. The governor then signs certificates of elections for the winning candidates.
There isn’t one weird trick to steal a presidential election. And there are ample safeguards to ensure ballots are tabulated accurately and election results are certified in a timely manner.
The other Bush v. Gore issue in Pennsylvania
Rick H. links to the recent Pennsylvania court decision and notes that there could be a Legislature Thereof Clause-style challenge to it, a la Chief Justice Rehnquist’s opinion in Bush v. Gore as ratified in some form in Moore v. Harper. But another Bush v. Gore issue may arise, that of Equal Protection.
Plaintiffs only sued two counties (Philadelphia and Allegheny), not the other 65. When the RNC as intervenors argued that the other 65 were indispensable parties (and must be a part of the lawsuit, or the case would have to be thrown out or the parties added), the court said this:
As for their equal protection concerns, Republican Party Intervenors do not develop their argument in this regard, as they only cite, without any substantive explanation, the above cases for the proposition set forth therein in passing that all laws regulating the holding of elections shall be uniform across the state. (See Repub. Party Intervenors’ Memo. in Supp. of ASR at 21-42 & Memo. of Law in Opp’n at 15-17.) While we generally agree with this well-established principle of uniformity, it is also well known, and undisputed in this case, that all 67 county boards of this Commonwealth do not conduct elections in their respective counties with strict uniformity to each other county in all respects. See generally RNC II (involving some county boards’ notice and opportunity to cure procedures with respect to absentee and mail-in ballots); see also Pa. Democratic Party, 238 A.3d at 382-83 (discussing Repub. Party of Pa. v. Cortés, 218 F. Supp. 3d 396, 409 (E.D. Pa. 2016) (in which the Eastern District Court of Pennsylvania considered the constitutionality of the Election Code’s poll watcher residency requirement and explained that Pennsylvania’s General Assembly enacted a county-based scheme to manage elections within the state, endeavored to allow county election officials to oversee a manageable portion of the state in all aspects of the process, and ensured as much coherency in that patchwork system as possible)). In the absence of any other citation to binding authority stating that any order issued in this case, by an en banc panel of this Court, would have no effect as it relates to the other 65 county boards, we decline to hold that we lack jurisdiction on these bases.
It seems odd to say this, then turn around and say that there’s a “substantial threat of disenfranchisement” for voters in these two counties that merits relief. To me, that would seem to weigh in favor of a need for uniformity, something beyond just “management” of how elections are administered.
Now, this is the substantive argument of what the equal protection argument means. (Relatedly, and interestingly, there seems to be little discussion of state law on the topic of the “well-established principle of uniformity.”)
But the argument here arises in the procedural dispute about indispensible parties. The RNC simply noted the other 65 counties were necessary, the court disagreed (and there are other things that must be established to show that a party is indispensible), so any development of the substantive issues ends up taking a back seat.
That said, it could well open up another lawsuit after this one, if two counties are under a court order that compels them to do something that a court has identified must be done or a “substantial threat of disenfranchisement” will take place, while the other 65 counties are under no such obligation. And, of course, more lawsuits are hardly what we’d like to see…. Pennyslvania’s deeply decentralized election system remains a source of plenty of litigation.
Purcell is about court-ordered changes to election administration–not all things that affect election administration
While I appreciate Rick H.’s critique of the Court’s decision in RNC v. Mi Familia Vota, I find myself in disagreement. He notes, “This is a change from the past when they could vote at least in federal races. It’s going to create administrative confusion and voter disenfranchisement in the period before the election. . . . The instructions on the state form are incorrect, there’s not going to be enough time to get the word out to voters, and procedures have to change with the election just weeks away.” I don’t think the concern is election administration writ large, but a kind of judicial intervention.
I think the opening description of Purcell, one that “discourages court orders in the period before the election on grounds that it can cause election administrator difficulties and voter confusion,” isn’t necessarily the right framing. I think Purcell is about court orders that change the legal status quo, not simply any change. Consider three of the major Court decisions here:
Continue reading Purcell is about court-ordered changes to election administration–not all things that affect election administrationDivided Seventh Circuit finds no standing for congressional candidate to challenge Illinois’s absentee ballot receipt deadline
The court was mostly unanimous but divided on a congressional candidate’s standing–including an interesting discussion that occasionally comes up in election law about what kind of risks or likelihoods courts should be thinking about when resolving disputes before an election as opposed to after. Just a few excerpts from a much longer discussion in Bost v. Illinois State Board of Elections:
In Illinois, voters can cast their ballots by mail in any election. And election officials can receive and count these ballots for up to two weeks after the date of the election so long as the ballots are postmarked or certified by that date. Plaintiffs, comprised of Illinois voters and political candidates, challenged this procedure, arguing that it impermissibly expands the time in which residents can vote. The district court dismissed their claims, ruling that Plaintiffs lacked standing to sue. The court also rejected the claims on the merits for good measure. Because Plaintiffs have not alleged an adequate injury, we agree that they lack standing to bring this suit and affirm the district court’s dismissal of the case on jurisdictional grounds.
. . .
. . . [P]laintiffs cannot establish the injury in fact necessary for Article III standing. Plaintiffs say that the challenged policy imposed tangible monetary harms by forcing them to use resources to contest ballots that arrived after Election Day. For example, Congressman Bost attests that he must continue to fund his campaign for two additional weeks after Election Day to contest any objectionable ballots. Furthermore, he needs to send poll watchers to each of the thirty-four counties in his district to monitor the counting of the votes after Election Day to ensure that any discrepancies are cured. In Plaintiffs’ view, the money and organization required to facilitate this operation is a tangible harm sufficient to confer standing.
We disagree. Recall that, to confer Article III standing, a plaintiff’s injury must not only be “concrete and particularized” but also “actual or imminent.” Lujan, 504 U.S. at 560. The latter requirement for standing “ensure[s] that the alleged injury is not too speculative for Article III purposes.” Id. at 564 n.2. Thus, when a claimant premises standing on a future harm, the harm must be more than just “possible”—the allegedly threatened injury must be “certainly impending.” Whitmore, 495 U.S. at 158.
. . .
In much the same way, the Illinois ballot receipt procedure does not impose a “certainly impending” injury on Plaintiffs. Rather, it was Plaintiffs’ choice to expend resources to avoid a hypothetical future harm—an election defeat. But whether the counting of ballots received after Election Day would cause them to lose the election is speculative at best. Indeed, Congressman Bost, for example, won the last election with seventy-five percent of the vote. . . . And Plaintiffs cannot manufacture standing by choosing to spend money to mitigate such conjectural risks.
And from the dissent:
In my view, the costs Congressman Bost will incur to monitor ballots after Election Day gives him “a personal stake in th[is] dispute” and a basis to proceed in federal court. FDA v.
Alliance for Hippocratic Medicine, 602 U.S. 367, 379 (2024) (internal quotation marks omitted). Campaign expenses readily qualify as both “concrete” and “particularized”—the first two prongs of Article III standing. See TransUnion LLC v. Ramirez, 594 U.S. 413, 424–25 (2021) (emphasizing that tangible monetary harms are quintessential “concrete injuries”); Mack v. Resurgent Cap. Servs., L.P., 70 F.4th 395, 406 (7th Cir. 2023) (“[M]oney damages are almost always found to be concrete harm.”); see also Trump v. Wisconsin Elections Comm’n, 983 F.3d 919, 924 (7th Cir. 2020) (“An inaccurate vote tally is a concrete and particularized injury to candidates.” (quoting Carson v. Simon, 978 F.3d 1051, 1058 (8th Cir. 2020))).The monitoring costs are also “imminent.” Congressman Bost has declared, in no uncertain terms, that he will send poll watchers to monitor vote processing and counting for two weeks after Election Day this November. As night follows day, he will incur campaign expenses to do so. Political campaigns cost money, including in the form of staffing; none of this is free. The guaranteed prospect of higher campaign costs is more than just a “possible future injury.” Clapper v. Amnesty Intern. USA, 568 U.S. 398, 409 (2013) (cleaned up). Such costs are “certainly impending.”
Congressman Bost’s increased monitoring expenses are also “fairly traceable” to Illinois’s ballot-receipt procedure and “redressable by a favorable ruling.” . . .
Resisting this conclusion, the Panel majority describes Bost’s costs as somehow entirely self-inflicted. Nothing in Illinois law, the Panel emphasizes, forces Bost to monitor the ballot count after Election Day. According to the Panel, Bost’s protracted poll watching is not a strategic necessity but instead an overreaction to a hypothetical possibility that is “speculative at best”: electoral defeat due to ballots received after Election Day that were improperly counted. Op. at 11. Such conjectural risks, in the majority’s view, are not sufficiently “imminent” to confer standing. See Clapper, 568 U.S. at 409. Nor, the Panel reasons, are the expected costs of precautionary measures taken to avoid those risks. See Op. at 11–12.
I disagree. For starters, the Panel goes too far in saying that the risk of ballots swaying the upcoming District 12 election after Election Day is only speculative. Nothing in Congressman Bost’s complaint or sworn declaration supports that view. Perhaps realizing the shortfall in its reasoning, the majority opinion resorts to taking judicial notice of the fact that Congressman Bost won reelection last cycle by a vast margin. See Op. 11 & n.3. But past is not prologue for political candidates, including an incumbent like Congressman Bost. In no way is any outcome guaranteed in November. . . .
Federal court explains why there’s no reason to miss Georgia’s election certification deadline
…back in 2018, when Common Cause asked a court to extend the certification deadline to amend ballot count totals after Stacey Abrams’s loss. From the plaintiff’s request:
Although the requested injunctive relief may “require additional efforts” from Secretary Kemp at an administrative level, postponing the certification of the election results until the merits of Plaintiff’s claims are addressed would not be “impossible or unduly burdensome.” See Fayette County, 118 F. Supp. 3d at 1348. Whatever costs, burdens, and inconveniences may fall on Secretary Kemp, such burdens “cannot begin to compare with the further subjection of [Georgia’s voters’] to denial of their right, to full and equal political participation.” Crenshaw County, 640 F. Supp. at 1363.
From the court’s order, quite sympathetic to the plaintiffs’ request (including the “responsibility” of the Secretary to “confirm the accuracy” of the vote totals) but rejecting the remedy of extending the statutory certification deadline:
Defendant has indicated that because of the anticipated runoff scheduled for December 4, 2018, the Secretary intends to certify the election results on Wednesday, November 14, 2018 (the day after the county deadline rather than on or closer to the November 20th deadline provided for by state law). The Secretary will not actually receive all final certifications until Wednesday, November 14th. Thus, the Secretary of State’s Office effectively intends to certify the results on the same day it receives the returns from the counties, rather than taking any portion of the additional week provided under the law to fully discharge the Secretary’s independent duty of review. . . . The Secretary’s Office early-announced decision to proceed with certification of the vote on the very date of receipt of the county certified vote returns appears to suggest the Secretary’s foregoing of its responsibility to confirm the accuracy of the results prior to final certification, including the assessment of whether serious provisional balloting count issues have been consistently and properly handled. Bush v. Gore, 531 U.S. 98 (2000).
. . .
Yet the State Legislature contemplated a host of these and other contingencies in providing the Secretary a full week to review and address deficiencies in the ballot counting process and results prior to the Secretary’s certification of the vote. And the statutory provisions (O.C.G.A. §§ 21-2-49 and 21-2-499) expressly anticipate the potential need for a county to take additional corrective steps and resubmit its vote tally to the Secretary of State after the Secretary’s remission of the original certification with questions. While the Court takes the State’s concerns seriously, it also notes current computer electronic capacities have made the extant short timelines more manageable and that the modest relief directed here falls completely within the state statutory timelines and framework as well as meets the requirements of HAVA.
That said, the Court finds it is not practically feasible to grant Plaintiff’s request for alteration of the original deadline for local county election boards to certify their results to the Secretary of State. As explained, the local county election officials are required to determine the eligibility of voters who cast provisional ballots within three days of the election, i.e. Friday, November 9, 2018. County officials in the most populous counties are now in the process of counting all verified ballots and processing all remaining absentee and overseas ballots in anticipation of the certification deadline of Tuesday, November 13, 2018. And as already discussed, a great number of counties have already completed their certifications. . . .
In light of all of the above, the Court GRANTS modest relief, narrowly tailored to the circumstances and considers the balance of potential harms, and unique challenges and circumstances surrounding an election at this late stage. . . .
The Court ENJOINS the Secretary of State from certifying the results of the election prior to FRIDAY, NOVEMBER 16 AT 5:00 P.M. See O.C.G.A. § 21-2-499 (providing that the Secretary of State shall certify the votes cast not later than 5:00 p.m. on the fourteenth day following the date of the general election, i.e. Tuesday, November 20, 2018). . . .
. . . The remedy has been narrowly crafted and does not disturb the status quo for election certification deadline.
The Twelfth Amendment and Electoral Count Reform Act are more robust than public commentary suggests
Rachel Maddow has a piece in the New York Times on the topic du jour of 2024 election commentary, here about certifying election results. (Other recent pieces in this oeuvre include Reuters and the Guardian.) I’ll just draw from an excerpt of the disaster-casting piece:
Then, local news headlines start to circulate. There are reports of unspecified “problems” in the vote in Fulton County. And in Gwinnett County. And in DeKalb, Coffee and Spalding Counties. Republican officials are refusing to certify the results in their counties. They say they are making “reasonable inquiries.”
As legal challenges wend through the courts, a wave of disinformation, confusion and propaganda swells, fueled by unproven claims that something is amiss in these Georgia counties, and also by similar noise — and possibly also certification refusals — in Michigan, Pennsylvania, New Mexico and Nevada. (All have seen local Republicans try the certification refusal ruse since 2020.)
Under recently revised federal law, each state has until Dec. 11 to send official, certified state results to Washington for the Electoral College count. But if a state doesn’t meet that deadline, then what?
The point of these certification refusals may not be to falsify or flip a result, but simply to prevent the emergence of one. If one or more states fail to produce official results, blocking any candidate from reaching 270 electoral votes, the 12th Amendment prescribes Gerald L.K. Smith’s dream scenario: a vote in the newly elected House of Representatives to determine the presidency.
As I’ve blogged, I don’t think the Georgia election rules will allow any election body to miss a deadline, & even if it’s a pretext for missing a certification deadline mandamus is readily available to correct. Additionally, of all of the local election officials who “tried” to refuse to certify election results since 2020, exactly zero have been successful–and exactly zero even missed the ultimate statutory deadline. It’s possible that changes in 2024, of course, but if we’re looking at past results, we might want to look at past success rates, too.
But Maddow also misreads the Electoral Count Reform Act. She is incorrect when she writes, “each state has until Dec. 11 to send official, certified state results to Washington for the Electoral College count.” That is not what the ECRA requires.
The ECRA states, “Not later than the date that is 6 days before the time fixed for the meeting of the electors, the executive of each State shall issue a certificate of ascertainment of appointment of electors . . . .” That deadline is placed on the executive, not the state itself.
She asks, “if a state doesn’t meet that deadline, then what?” Well, the ECRA helps answer that, too. The section continues, “Any certificate of ascertainment of appointment of electors required to be issued or revised by any State or Federal judicial relief granted prior to the date of the meeting of electors shall replace and supersede any other certificates submitted pursuant to this section.” That is, the ECRA anticipates that there may be disputes that miss the six-day window. Judicial relief that comes after that, but before the electors meet, is “conclusive in Congress,” as the ECRA explains elsewhere.
She continues, “If one or more states fail to produce official results, blocking any candidate from reaching 270 electoral votes . . . .” But that’s not right, either.
If a state fails to produce a certificate of election, the state has failed to “appoint” electors under the Twelfth Amendment. Put differently, you would no longer need 270 votes to win the presidency. You would need something else. Suppose, in some fanciful universe, Wisconsin failed to certify its election results and appoint 10 electors. (This has happened before, like in 1789, when New York failed to send any electors.) The total electors appointed would be 528, not 538. The total number to win would be 265, not 270. Unless we had votes cast for third-party candidates or a tie, someone would still have a majority. No election would be sent to the House.
The Twelfth Amendment and the ECRA help reduce some of the disaster scenarios for 2024. Of course, nothing can anticipate every circumstance. But we’re in better position than some disaster pieces suggest.
Where the Arizona proof of citizenship dispute might lead
Rick P. earlier noted that Republican National Committee v. Mi Familia Vota is pending for an emergency application for a stay before the Supreme Court. There are complicated issues about the procedural posture and the timing, including which way a case like Purcell cuts after two separate Ninth Circuit panels weighed in with conflicting results, which I won’t discuss in this post. We might see some emergency order that could affect a small but non-trivial percentage of voters in Arizona in their ability to participate in the presidential election (they are already excluded from participating in the state election and already permitted to participate in the congressional election). And there is a separate issue of vote-by-mail writ large at stake in the case, but that won’t be the focus of this post.
Back in March 2022–two and a half years ago!–I sketched out what might be at stake with respect to this particular Arizona law in the long run (i.e., if the Court grants cert in this case). In brief, some federal laws purport to regulate federal elections (both congressional and presidential), but their ability to regulate presidential elections might be called into question. Some provisions (e.g., the Fifteenth Amendment or the Spending Clause) might provide an adequate basis for a given law being upheld. But it could be quite disruptive to others, in the event a state opted not to follow that law.
Continue reading Where the Arizona proof of citizenship dispute might leadIs Michigan properly interpreting its own laws in keeping Cornel West off the ballot?
Rick P. highlights this story from the Detroit News, which explains that Cornel West will be kept off the ballot. It includes a PDF of his “Affidavit of Identity,” which Bureau of Elections claims fails at least four elements of being properly notarized.
But I was surprised to see, as the Washington Post and others have reported, the purported legal hook. Michigan appears to have an unusual interpretation of the statute to ensure it applies to West.
Continue reading Is Michigan properly interpreting its own laws in keeping Cornel West off the ballot?Is a new Georgia election rule cause for significant concern in 2024?
The Guardian lede claims, “Trump’s plan to steal election is taking shape.” Is that right?
The New York Times opens this way: “The Republican-controlled Georgia State Election Board approved on Tuesday a measure that could empower local officials to refuse or delay certification of a county’s election results, creating the potential for another disputed and contentious post-election period in November.”
“Could” is doing a lot of work here.
In the Washington Post, it’s this way: “And it got to work this week approving a raft of new rules that critics say could void valid votes, place onerous burdens on overtaxed election workers and potentially delay the certification of results.”
Likewise, “could . . . potentially” seems to be doing significant work. (And it’s all hedged with “critics say.”)
So let’s look at that rule. It’s a cause of some mild concern, in my view, but nothing particularly significant, and certainly nothing likely to affect the results of the election in any formal way.
Continue reading Is a new Georgia election rule cause for significant concern in 2024?“Administering Presidential Elections and Counting Electoral Votes After Trump v. Anderson”
I have recently posted this draft on SSRN. From the abstract:
In the landmark case Trump v. Anderson, the Supreme Court unanimously held that states lack the unilateral power to exclude presidential candidates from the ballot on the basis of Section 3 of the Fourteenth Amendment. But while the Court was united in its essential holding, the justices fractured in their reasoning, leaving significant questions about Congress’s role in enforcing Section 3 against presidential candidates.
This Article examines the fault lines in Trump v. Anderson and analyzes how Congress’s power to count electoral votes under the Twelfth Amendment intersects with its authority to enforce Section 3 of the Fourteenth Amendment. It argues that while Congress holds the power to refuse to count electoral votes cast for a candidate it deems ineligible, it should refrain from exercising that power in presidential elections in contentious cases unless it has provided clear rule to ascertain ineligibility well before the election. The Article further contends that if Congress does exclude a winning candidate on the basis of Section 3, it cannot simply declare the second-place candidate the winner; instead, the election would go to the House of Representatives for a “contingent election.” Exploring the intricacies and implications of the Electoral Count Reform Act of 2022, this Article offers timely insights into a high-stakes issue with the potential to affect the 2024 presidential election and beyond.
JD Vance on the Electoral Count Reform Act
Asked if that means he would go so far as to put Trump’s desires above his constitutional authority — as Pence has said he was asked to do on Jan. 6, 2021, when Trump wanted him to send the election back to the states — Vance wouldn’t entertain the “hypothetical.”
“I think it’s weird to engage in hypotheticals given the law’s changed here,” Vance said, referring to legislation that Congress passed and President Joe Biden signed to restrict how the Electoral College is counted.
“As I’ve said repeatedly, I think there absolutely were problems in the election of 2020. I think it’s important for the vice president to not, to do whatever he can to try to rectify those problems,” Vance said. “The role necessarily is going to be a lot different than it was back then, because the laws have changed.”
Multiple federal courts toss election challenges for lack of standing, citing FDA v. AHM
Last month, I highlighted the Court’s decision in FDA v. AHM and suggested that the decision could disrupt some election litigation. That prediction is coming true.
Yesterday, in Citizens Project v. Colorado Springs, a federal court dismissed Voting Rights Act claim on the ground that the plaintiffs lacked standing. From the decision (lightly revised):
Organizations, like Plaintiffs, have two methods to achieve Article III standing. They can claim organizational standing because they suffered an injury of their own, or they can claim associational standing based on injuries suffered by their members. Id. But Plaintiffs do not claim associational standing. Thus, for Article III purposes, they must demonstrate they have organizational standing.
As noted above, each Plaintiff claims a diversion of its resources for purposes of the injury-in-fact component of Article III standing. According to Plaintiffs, these reroutes include things like diverting time, money, and resources from their other civic or voter engagement activities and their day-to-day operations; duplicating November “get out the vote” efforts; diverting limited employee and volunteer capacity; and deprioritizing other activities preceding April off-year elections.
But these are the same types of injuries the medical-association plaintiffs claimed in Alliance for Hippocratic Medicine, and which the Supreme Court rejected for purposes of organizational standing. There, four pro-life medical associations (along with physicians) sought judicial review under the Administrative Procedure Act in their challenge to the Food and Drug Administration’s (FDA) approval of standards surrounding the administration of mifepristone—a medical abortion-inducing drug. Relying on the Supreme Court’s decision in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), the medical associations claimed they had suffered their own injuries for Article III standing purposes . . .
The Supreme Court deemed these injuries insufficient to confer organizational standing. Drawing a contrast, it explained that the injuries claimed by the organization in Havens directly affected and interfered with that organization’s “core business activities [of providing housing counseling services to low-income persons]—not dissimilar to a retailer who sues a manufacturer for selling defective goods to the retailer.” It found the FDA’s actions imposed no similar impediment on the medical associations’ advocacy business. Id. And it cautioned that “Havens was an unusual case, and this Court has been careful not to extend the Havens holding beyond its context.” Speaking of the diversion-of-resource injuries claimed by the medical associations, the Supreme Court explained that “an organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action. An organization cannot manufacture its own standing in that way.” Yet this is what Plaintiffs appear to have done here—i.e., manufacture their
Continue reading Multiple federal courts toss election challenges for lack of standing, citing FDA v. AHM
own standing.
DC Circuit finds FEC improperly dismissed complaint that alleged coordination between Clinton, PAC in 2016
Campaign Legal Center v. FEC, opinion by Judge Pillard, joined by Judges Childs and Edwards:
Leaning heavily on that internet exemption, political action committee Correct the Record set out to engage in a wide range of coordinated activities to support Hillary Clinton’s 2016 presidential campaign. In an administrative complaint filed with the Federal Election Commission, nonprofit watchdog Campaign Legal Center alleges that Correct the Record spent close to $6 million in coordination with the Clinton campaign during the lead-up to the 2016 election, including to conduct polls, hire teams of round-the-clock fact-checkers, and connect Clinton media surrogates with radio and television news outlets. Correct the Record publicized that it was coordinating all these activities with the Clinton campaign. But it characterized all of the committee’s myriad expenditures—from staff salaries and travel expenses to the cost of commissioning polls and renting offices—as “inputs” to unpaid communications over the internet. For that reason, neither Correct the Record nor the Clinton campaign designated any of Correct the Record’s expenditures as contributions to the campaign. . . .
We hold that the Commission acted contrary to law in dismissing the complaint. Because we conclude that the internet exemption cannot be read to exempt from disclosure those expenditures that are only tangentially related to an eventual internet message or post, the Commission’s reading of the internet exemption stretches it beyond lawful limits. As to those expenditures that it deemed not to be covered by the internet exemption, the Commission acted contrary to law in dismissing the complaint for want of reason to believe the relevant expenditures were coordinated with the campaign, despite plausible allegations that Correct the Record coordinated all its expenditures with Hillary for America—and openly acknowledged doing so.
(For more on this story from 2015 and 2016, see here, here, here, and here.)