All posts by Rick Hasen

Breaking: NYT Reports Grand Jury Votes to Indict Donald Trump for a Felony Related to “Hush Money” Payments; No Information Yet on Whether There is an Attempt to Bootstrap a Federal Campaign Finance Charge (Which May Not Work)

Breaking NYT:

A Manhattan grand jury voted to indict Donald J. Trump on Thursday for his role in paying hush money to a porn star, according to four people with knowledge of the matter, a historic development that will shake up the 2024 presidential race and forever mark him as the nation’s first former president to face criminal charges.

The felony indictment, filed under seal by the Manhattan district attorney’s office, will likely be announced in the coming days. By then, prosecutors working for the district attorney, Alvin L. Bragg, will have asked Mr. Trump to surrender and to face arraignment on charges that remain unknown for now.

Mr. Trump has for decades avoided criminal charges despite persistent scrutiny and repeated investigations, creating an aura of legal invincibility that the vote to indict now threatens to puncture.

His actions surrounding his 2020 electoral defeat are now the focus of a separate federal investigation, and a Georgia prosecutor is in the final stages of an investigation into Mr. Trump’s attempts to reverse the election results in that state.

But unlike the investigations that arose from his time in the White House, this case is built around a tawdry episode that predates Mr. Trump’s presidency. The reality star turned presidential candidate who shocked the political establishment by winning the White House now faces a reckoning for a hush money payment that buried a sex scandal in the final days of the 2016 campaign…

To turn a misdemeanor false records charge into a felony under NY law, the falsification must be in furtherance of “another crime.” I’ve expressed some skepticism about whether a federal campaign finance crime could be used in state court (and whether there is a campaign finance crime at all). But we’ll have to see the indictment to know.

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“Here’s how protected election system blueprints are making their way into far-right circles”

LA Times:

On the third day of the Conservative Political Action Conference earlier this month, two men delivered on experts’ biggest concerns about attempts to access election machines after the 2020 election.

Using copies of election software — improperly removed from multiple counties — that has been circulating among election deniers, they presented an unfounded narrative that they had discovered evidence of fraud and foreign interference. They also discussed their goal to secure jobs as election officers and build a team of computer experts to access elections systems in more than 60 counties in order to prove their theories.

“This is exactly the situation that I have warned about,” said election technology expert Kevin Skoglund, a senior technical advisor at the National Election Defense Coalition. “Having the software out there allows people to make wild claims about it. It creates disinformation that we have to watch out for and tamp down.”

Skoglund is among the election security experts concerned that bad actors are using the time between the 2020 and 2024 elections to study election systems and software in order to produce disinformation during the next presidential election, such as fake evidence of fraud or questionable results.

Described as an election integrity presentation, the event wasn’t on the official CPAC agenda or sanctioned by the organization, but took place in a guest room at a nearby hotel. Some CPAC sponsors hold their own sessions, which are planned and produced by them and not CPAC.

Only a small number of people attended the event in person. At least 2,800 people watched live online through a far-right broadcast, according to that show’s host. That broadcast included commentary from election deniers before and after the presentation.

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Florida: “2 DeSantis election fraud cases end with guilty pleas in Hillsborough; Both men received six months of probation. Their attorneys called the prosecutions political.”

Tampa Bay Times:

Two Hillsborough County residents who were part of a statewide sweep billed as an effort to combat voter fraud pleaded guilty Tuesday to felony charges and received six months of probation.

Hubert Jack and Michael Anderson each admitted to charges of voting by an unqualified elector, stemming from their participation in the 2020 election, despite prior convictions that made them ineligible to vote. Jack also pleaded guilty to a charge of false swearing.

The pair were included in a string of arrests made last summer by Gov. Ron DeSantis’ new election security force. Those arrested were accused of having illegally voted, as they had prior homicide or sex offense convictions….

Both attorneys said their clients believed they were allowed to vote.

Before the 2020 election, Crawford said, Jack encountered a group that was registering people to vote. Jack, who had a prior conviction for sexual battery, was told, incorrectly, that Amendment 4 restored voting rights to all felons, his attorney said. The amendment did not restore voting rights to those convicted of homicide or sexual battery.

“He was told wrong,” Crawford said.

Jack signed a form attesting that he was eligible to vote. He was later given a voting card and a letter of congratulations from the supervisor of elections, his attorney said. No one challenged his eligibility.

In Anderson’s case, his efforts to register to vote occurred as he was trying to obtain clemency for a sex offense conviction from more than 20 years ago. He went to “extraordinary lengths” to verify that he was eligible to vote, including contacting people in Tallahassee, and the local supervisor of elections office, his attorney said.

“They assured him, yes, you’re eligible,” Bridges said.

The Department of State is required to notify and remove ineligible voters from the rolls, a task they’ve struggled to complete.

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“Arizona Democrats to sue No Labels to block third-party challenge”

WaPo:

The Arizona Democratic Party will file a lawsuit Thursday against the state’s top election administrator and No Labels, seeking to reverse the moderate group’s recognition as a political party for the 2024 elections, according to Democratic officials.

The lawsuit, in state court in Phoenix, reflects growing concern in Democratic circles that a No Labels third-party ticket in 2024 will jeopardize the reelection hopes of President Biden and make it harder for Democrats to maintain control of the Senate.

The lawsuit claims that Secretary of State Adrian Fontes, who is a Democrat, made an error in accepting signature petitions for the No Labels Party, because accompanying affidavits from proposed electors were signed before all the petitions were gathered, in violation of state statute. As a result, the Arizona Democratic Party claims the affidavits purporting to verify the petitions should be considered false and the petitions invalid.

The lawsuit also argues that No Labels, which is organized as a social welfare nonprofit that is not required to disclose its donors, has failed to comply with the federal requirements of a political party, including donation limits and donor disclosure.

“No Labels is not following the rules for political party recognition, while attempting to be placed on the ballot alongside actual, functioning political parties who do,” said Morgan Dick, spokeswoman for the Arizona Democratic Party. “Arizonans deserve better and voters deserve to know who is behind this shadowy organization and what potentially nefarious agenda they are pushing.”

Ryan Clancy, the chief strategist for No Labels, dismissed the lawsuit as a political move.

“This undemocratic and unscrupulous lawsuit is a disgrace,” he said in a statement. “Next time you hear this crowd talking about protecting democracy, remember what they are really doing is protecting their turf.”

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“Towards Proportional Representation for the U.S. House”

New report:

In Towards Proportional Representation for the U.S. House, Protect Democracy and Unite America examine a 1967 statute enacted by Congress—the Uniform Congressional District Act (UCDA)—that mandates the use of single-member districts for House elections; how the system is weakening the foundations of our democracy; and policy options for reform.

While U.S. House elections use single-member districts, more common among democracies is some form of proportional multi-member districts. The two models give rise to two distinct electoral systems: the former, a winner-take-all system in which a single candidate, with a plurality or majority of the vote, represents the entire district (“takes all”); and the latter, a system of proportional representation in which multiple winners secure legislative seats in rough proportion to the votes they receive.”

Read the report

Drawing on decades of scholarly work, the report finds that replacing current winner-take-all elections with a proportional system of representation could curb gerrymandering; increase the share of competitive congressional seats; expand the ability of racial minorities to elect candidates of their choice; allow conservatives and liberals to gain representation in proportion to their actual support within a state; decrease dangerous levels of polarization; and lessen political extremism and the risk of political violence, among other effects.

As one scholar concludes in a global study of democratization, “if any generalization about institutional design is sustainable,” it is that winner-take-all electoral systems “are ill-advised for countries with deep ethnic, regional, religious, or other emotional and polarizing divisions.” Towards Proportional Representation takes stock of the House’s winner-take-all system and options for amending federal law to address its deficiencies.

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“Why Sore Loser Laws Can’t Be Applied to Presidential Candidates”

Richard Winger at Smerconish:

The spring 2023 Harvard Journal of Law & Public Policy has an article, “How State ‘Sore-Loser’ Laws Make it Impossible for Trump to Run a Successful Third-Party Campaign If He Loses the Republican Primary.”  The authors are four attorneys in Holtzman Vogel Baran Torchinsky & Josefiak.  The article concludes that 28 states would bar Trump from the general election ballot if he had run in that state’s presidential primary and yet did not become the Republican presidential nominee.  The 28 states, the authors say, are Alabama, Arizona, Arkansas, Colorado, Georgia, Illinois, Kansas, Louisiana, Maine, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wisconsin.

The article has factual mistakes, but Alabama, Michigan, Pennsylvania, and Texas courts have indeed said that states can bar presidential candidates from the general election if they had run in the major party presidential primaries and then failed to gain that major party’s nomination.   The first, a Texas decision filed in 1996, did not involve declaratory relief, but only denial of injunctive relief.  The other three, filed in 2012 and 2016, did include declaratory relief.

Those decisions are  (1) De La Fuente v Merrill, 214 F.Supp.3d 1241 (m.d. Alabama 2016); (2) Libertarian Party of Michigan v Johnson, 905 F Supp 2d 751 (e.d. Michigan 2012); (3) De La Fuente v Cortes, 751 Fed.Appx. 269 (Pennsylvania, 3rd circuit, 2018) (4) National Committee of the U.S. Taxpayers Party v Garza, 924 F.Supp.71 (w.d. Texas 1996).

However, it is also true that no state had ever barred a presidential candidate from the general election ballot, on “sore loser” grounds, until 2012, even though “sore loser” laws had existed for over a century.  Before 2012, 34 states had printed “sore losers” on their presidential general election ballots, setting precedents that the laws don’t apply to presidential candidates.  It should strike anyone that it is peculiar that past practice should suddenly count for nothing when the law is applied….

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California: “Shasta supervisors pursue hand count election plan, details remain unclear”

Jefferson Public Radio:

After ditching Dominion Voting Systems in January, Shasta County still doesn’t have a clear way to conduct elections. The county’s Board of Supervisors voted on Tuesday to try hand counting every ballot.

Shasta County supervisors moved forward with an unprecedented plan to hand-count every ballot in future elections. No other county in California counts all ballots by hand.

During the Board of Supervisors meeting Tuesday, County Clerk Cathy Darling Allen pleaded with supervisors to choose one of three certified voting systems in California to avoid running afoul of state and federal laws.

“You can hear the irritation in my voice,” she said. “But I have spent the last two-and-a-half years defending a process that is not broken.”

On Monday, Darling Allen sent a letter outlining the urgency that county supervisors choose a certified voting system to be prepared for upcoming elections.

Darling Allen estimated the board would need to provide around $1.6 million and 1,200-1,300 new staff members if they wanted to count the results of the entire election by hand.

“While my office is full of extremely competent and prepared professionals, even we cannot perform miracles,” she said.

The estimated cost Darling Allen provided is just to hire the temporary staff. She said that doesn’t include post-election audits and rental of a facility large enough to accommodate the ballot-counting teams.

In January, Shasta County supervisors voted 3-2 to cancel their contract with Dominion Voting Systems, amidst unproven claims that the machines were used to switch votes from Donald Trump to Joe Biden in the 2020 election.

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“How to Protect American Democracy; U.S. Elections Are Still Vulnerable to Enemies Foreign and Domestic”

Larry Norden and Derek Tisler in Foreign Affairs:

Despite this outcome, it would be foolish to believe the danger has passed. Election deniers continue to work in some election offices around the country, and in 2022, they won more than 170 races for the House of Representatives, the Senate, and key statewide offices. Powerful figures, including former President Donald Trump and pundits with millions of followers and viewers, continue to undermine the public’s confidence in U.S. elections. Abroad, countries with massive resources have the motive and means to interfere in future contests. If anything, the heightened geopolitical stakes raised by the war in Ukraine and other global flashpoints will increase their interest in meddling in 2024. Elections have in many ways become a battlefield in a contest over global order.

With the next U.S. presidential election on the horizon, now is the time to further shore up the system’s defenses against threats foreign and domestic to help ensure that the democratic process is protected when Americans go to the polls in November 2024.

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“Republicans Face Setbacks in Push to Tighten Voting Laws on College Campuses”

NYT:

Alarmed over young people increasingly proving to be a force for Democrats at the ballot box, Republican lawmakers in a number of states have been trying to enact new obstacles to voting for college students.

In Idaho, Republicans used their power monopoly this month to ban student ID cards as a form of voter identification.

But so far this year, the new Idaho law is one of few successes for Republicans targeting young voters.

Attempts to cordon off out-of-state students from voting in their campus towns or to roll back preregistration for teenagers have failed in New Hampshire and Virginia. Even in Texas, where 2019 legislation shuttered early voting sites on many college campuses, a new proposal that would eliminate all college polling places seems to have an uncertain future.

“When these ideas are first floated, people are aghast,” said Chad Dunn, the co-founder and legal director of the UCLA Voting Rights Project. But he cautioned that the lawmakers who sponsor such bills tend to bring them back over and over again.

“Then, six, eight, 10 years later, these terrible ideas become law,” he said.

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“Wisconsin’s Supreme Court race could be the beginning of the end for GOP dominance”

Politico:

Next week’s Supreme Court election in Wisconsin could be the beginning of the end of the GOP’s near-dominance in Wisconsin.

With the exception of the governorship, Republicans have long had a lock on most levers of power in the state. They have a strong majority of the congressional delegation. They’re on the cusp of supermajorities in both legislative chambers. And conservatives currently hold sway on the state Supreme Court.

But a liberal win in the April 4 election could upend all of that. It would give liberals an effective majority on the high court — and with it, the possibility to redraw state and congressional district lines in ways that dramatically curb Republican power.

“Wisconsinites are very familiar with hearing ‘this is the most important election of our lifetime,’” said Sarah Godlewski, a Democrat who was recently appointed to be the Wisconsin secretary of state after running for the Senate last year. But, she emphasized, this race is actually incredibly “consequential” for the longer-term political control of the state.

A liberal takeover of the supreme court could even be a factor in the race for control of the U.S. House in 2024.

A win by Democrat-backed Janet Protasiewicz — which could shift control of the court from a one-seat advantage for conservatives to a 4-3 liberal majority — could have a domino effect in the state. She is facing former state Supreme Court Justice Dan Kelly, the conservative candidate backed by the state GOP in the technically non-partisan race.

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“Pence Must Testify to Jan. 6 Grand Jury, Judge Rules”

NYT:

A federal judge has ordered former Vice President Mike Pence to appear in front of a grand jury investigating former President Donald J. Trump’s attempts to overturn the 2020 election, largely sweeping aside two separate legal efforts by Mr. Pence and Mr. Trump to limit his testimony, according to two people familiar with the matter.

The twin rulings on Monday, by Judge James E. Boasberg in Federal District Court in Washington, were the latest setbacks to bids by Mr. Trump’s legal team to limit the scope of questions that prosecutors can ask witnesses close to him in separate investigations into his efforts to maintain his grip on power after his election defeat and into his handling of classified documents after he left office.

In the weeks leading up to the Capitol attack by a pro-Trump mob on Jan. 6, 2021, Mr. Trump repeatedly pressed Mr. Pence to use his ceremonial role overseeing the congressional count of Electoral College votes to block or delay certification of his defeat.

Prosecutors have been seeking to compel Mr. Pence to testify about Mr. Trump’s demands on him, which were thoroughly documented by aides to Mr. Pence in testimony last year to the House select committee that investigated the Jan. 6 riot and what led up to it….

While Judge Boasberg issued a clear-cut ruling against Mr. Trump’s attempts to assert executive privilege, his ruling on the “speech or debate” clause was more nuanced, according to a person familiar with the matter.

The judge affirmed the idea that Mr. Pence had some protection under “speech or debate” based on his role in overseeing the certification of the election inside the Capitol on Jan. 6. But Judge Boasberg also said that Mr. Pence would have to testify to the grand jury about any potentially illegal acts committed by Mr. Trump, the person familiar with the matter said.

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“N.C. board removes election officials who refused to certify”

AP:

 North Carolina’s state elections board on Tuesday removed two local election officials who had refused to certify their county’s 2022 results after officials determined they violated state law.

The state board voted unanimously to dismiss Surry County elections secretary Jerry Forestieri and board member Timothy DeHaan in one of the strongest disciplinary actions taken against local officials across the U.S. who have delayed or refused to certify election results. Controversies over election certification have roiled mostly rural counties across the country as conspiracy theories about voting machines have spread widely among conservatives.

Forestieri and DeHaan had questioned the legitimacy of state election law and court decisions disallowing photo ID checks and voter residency challenges. They falsely claimed in a letter that the vote was “illegal” and “very uncertain.”

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“A Campaign Aide Didn’t Write That Email. A.I. Did.”

NYT:

The Democratic Party has begun testing the use of artificial intelligence to write first drafts of some fund-raising messages, appeals that often perform better than those written entirely by human beings.

Fake A.I. images of Donald J. Trump getting arrested in New York spread faster than they could be fact-checked last week.

And voice-cloning tools are producing vividly lifelike audio of President Biden — and many others — saying things they did not actually say.

Artificial intelligence isn’t just coming soon to the 2024 campaign trail. It’s already here.

The swift advance of A.I. promises to be as disruptive to the political sphere as to broader society. Now any amateur with a laptop can manufacture the kinds of convincing sounds and images that were once the domain of the most sophisticated digital players. This democratization of disinformation is blurring the boundaries between fact and fake at a moment when the acceptance of universal truths — that Mr. Biden beat Mr. Trump in 2020, for example — is already being strained.

And as synthetic media gets more believable, the question becomes: What happens when people can no longer trust their own eyes and ears?

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