All posts by Rick Hasen

John Eastman Offers Warped View of 2020 Election, the January 6 “incursion into the Capitol,” and His Attempt to Subvert Election, in Supreme Court Brief Seeking to Erase District Court Case Finding He and Trump Likely Participated in a Crime

Via Tierney Sneed at CNN, comes this cert. petition before the Supreme Court in No. 22-1138. Eastman is asking for a Munsingwear vacatur of a federal district court ruling, which would wipe that case off the books on grounds it is moot. The case held that Trump and Eastman likely committed a crime in how they tried to interfere with the electoral college vote and turn an election loser into an election winner. Eastman now argues the case is moot because the documents and been released, and the ruling “created a stigma for both Petitioner and his client, the former President of the United States and current candidate for the presidency.”

Of particular interest to me was Eastman’s warped view of the facts of the 2020 election aftermath in his brief. It makes no mention of the crimes that Eastman and Trump were accused of participating in, only indirectly suggesting that Eastman did nothing wrong.

It also wrongly suggests that because the Wisconsin Supreme Court more than a year after the 2020 election found the use of drop boxes did not comply with Wisconsin law, that “thousands of illegal votes [were] included in certified votes in the election.” That is false. There was no finding that any illegal votes were cast in Wisconsin via drop boxes, even if the method used to collect those ballots cannot be used in future elections. Teigen v. Wis. Elections Comm’n, 976 N.W.2d 519 (Wis. 2022), did not involve any allegation that ballot drop boxes were used to commit election fraud, and there was no credible evidence presented that drop boxes in Wisconsin or anywhere else facilitated such fraud. Id. at 583 (Ann Walsh Bradley, J., dissenting) (“There is no evidence at all in this record that the use of drop boxes fosters voter fraud of any kind. None. And there certainly is no evidence that voters who used drop boxes voted for one candidate or party or another, tilting elections either direction.”); see also Trump v. Biden, 951 N.W.2d at 583 (Hagedorn, J., concurring) (“At the end of the day, nothing in this case casts any legitimate doubt that the people of Wisconsin lawfully chose Vice President Biden and Senator Harris to be the next leaders of our great country.”).

Eastman’s brief also wraps itself in the most extreme version of the independent state legislature theory, suggesting any time a state or local administrator administered an election in a way not explicitly described in a state statute, the election was conducted illegally. (See my amicus brief in Moore v. Harper for the absurdity of this position.)

Given Ginni Thomas’s involvement in some of these same events, I hope that Justice Thomas will be recusing from considering this cert. petition.

Below the fold you can find Eastman’s statement of facts:

Continue reading John Eastman Offers Warped View of 2020 Election, the January 6 “incursion into the Capitol,” and His Attempt to Subvert Election, in Supreme Court Brief Seeking to Erase District Court Case Finding He and Trump Likely Participated in a Crime
Share this:

The Curious Failure to Cite to Rehnquist’s Bush v. Gore Concurrence and the Independent State Legislature Theory in 2004 Salazar Case; The Issue Was Clear to Justice Stevens’ Then-Clerk (and Now-CA Supreme Court Justice) Leondra Kruger

As the independent state legislature theory remains in limbo in Moore v. Harper, I’ve thought back on Chief Justice Rehnquist’s dissent from denial of cert in  Colorado General Assembly v. Salazar (2004) (a case that few other than Derek Muller and I have paid much attention to). As Derek recently explained:

The Colorado Supreme Court in 2003 found that the state constitution precluded the legislature from mid-decade redistricting. That was despite the fact that the 2002 congressional map was implemented by a state court because the Assembly had failed to pass a congressional redistricting plan in time. The legislature wanted a shot at drawing a map in 2003. No dice, said the Colorado Supreme Court. The assembly appealed, citing its power to as the “legislature” to determine the manner of elections under the Elections Clause.

The Court denied cert in 2004. Chief Justice Rehnquist, joined by Justices Scalia and Thomas, dissented, relying on a version of his concurring opinion in Bush v. Gore (without citing it, opting, instead, to cite McPherson v. Blacker (1892) with a “cf.” signal): “Legislature” must mean something under Article I of the Constitution, and here the institutional legislature has been cut out of the process.

I have always been curious about the failure of the Chief Justice to cite his own Bush v. Gore concurrence which was directly on point. Surely it must have occurred to him to do so and he decided not to do so because the case was so controversial at the time.

I took a look this week at the (very thin) Salazar file in the newly released papers of Justice Stevens. Nothing there directly sheds light on Rehnquist’s citation decision, but the issue was flagged by then-clerk and now California Supreme Court Justice Leondra Kruger in her memo to Justice Stevens recommending a cert denial in the case:

Share this:

Breaking: Kari Lake Loses Election Contest in Arizona Governor’s Race (Link to opinion)

The trial judge in this opinion found no misconduct or illegal conduct in signature verification of absentee ballots. Kari Lake loses her election contest against Katie Hobbs for Arizona’s gubernatorial race on her final remaining issues.

She can appeal, but an appeal is unlikely to succeed given these factual findings.

H/t Yvonne Wingett Sanchez

Share this:

California Supreme Court Will Hear Oral Argument in Santa Monica Voting Rights Case in June After All

Initially I predicted a summer hearing for this important and delayed case under the California Voting Rights Act. Then it appeared my prediction was wrong when the June oral argument calendar came out without the Santa Monica case.

Now, in a potentially unprecedented move, the CA Supreme Court has set a second oral argument calendar for June 27, with the Santa Monica case on it. It will be an all-remote hearing.

Stay tuned!

Share this:

ELB Podcast 4:8: Mary Ziegler: Dollars for Life: Money, Politics and Abortion

New ELB Podcast:

To what extent have abortion politics been the driver of campaign finance fights in the courts?

How much of a force has anti-abortion lawyer Jim Bopp been in the campaign finance cases?

Are new efforts to make it harder to pass abortion initiatives going to change voters’ access to direct democracy?

On Season 4, Episode 8 of the ELB Podcast, we speak with law professor and historian Mary Ziegler, author of the new book, Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.

You can subscribe on SoundcloudApple Podcasts, and Spotify.

Share this:

ELB Book Corner: Steve Vladeck: “How the Shadow Docket Came Full Circle in the 2022 Redistricting Cases”

I am pleased to welcome to ELB Book Corner Steve Vladeck, author of the new book, The Shadow Docket. Here is the last of three posts:

After introducing Purcell and how the Court used it inconsistently in the 2020 election cycle in ways that tended to favor Republicans and disfavor Democrats, Chapter 6 of my new book on the shadow docket turns to a pair of unsigned, unexplained decisions handed down in 2022 redistricting cases—and makes the case that here, as much as in any other set of shadow docket rulings, the Supreme Court’s behavior was undermining the republic (a charge leveled in the book’s subtitle), with hard-to-defend (and undefended) rulings that may well have altered which party currently controls the House of Representatives. It’s not a charge the book makes lightly, but the evidence is … significant.

When Alabama redrew its seven US House districts following the 2020 Census, the map included only one district where Black voters would form a majority, even though 27 percent of the state’s total population in the 2020 Census identified as Black. On November 4, 2021—the same day the map was signed into law by Governor Kay Ivey—a group of plaintiffs brought suit, arguing that the state had impermissibly engaged in “vote dilution” in violation of the Voting Rights Act. The suit was assigned to a special three-judge district court that featured two Trump- appointed district judges and the Clinton-appointed Eleventh Circuit judge Stanley Marcus.

On January 24, 2022, the three judges unanimously sided with the challengers. After a seven-day hearing featuring live testimony from seventeen witnesses, the court concluded that the plaintiffs had made out their case for a violation of the Voting Rights Act under the Supreme Court’s 1986 ruling in Thornburg v. Gingles—and that Alabama should have drawn a second “majority-minority” district. Noting that there was still plenty of time for the state to try again before the map needed to be finalized for the 2022 primary and general elections (it had taken less than a week to draw the unlawful map), the court ordered Alabama to redraw its map to include a second “majority-minority” district. That district would almost certainly create a second Democratic seat within Alabama’s 6–1 Republican House delegation.

Alabama appealed the ruling (and a separate one from a single district judge), but also asked the Court to stay both injunctions pending those appeals, to allow the unlawful map to be used for the 2022 midterms. On February 7, the Court agreed. There was no majority opinion, but a concurring opinion by Justice Kavanaugh, joined by Justice Alito, rested heavily on Purcell. Now promoting the Purcell principle to “a bedrock tenet of election law” (emphasis mine), Kavanaugh wrote that, “when an election is close at hand, the rules of the road must be clear and settled.” Thus, even though the district court injunction had specifically left it to the state to redraw its map in time for the 2022 midterm cycle (and had concluded that there was plenty of time for the state to comply), Kavanaugh complained that the district court was “swoop[ing] in and re-do[ing]” Alabama’s laws “in the period close to an election.”

There’s just one problem with Kavanaugh’s Purcell analysis: It makes no sense. The district court decision (which Kavanaugh referred to as a “late-breaking injunction”) came on January 24, more than nine months before the 2022 congressional election. And even if the Alabama primary was the relevant deadline, that election wasn’t until May 24, still four months away. Moreover, the challengers in the Alabama case had filed suit on the very day that the map had been adopted—the earliest possible moment for such legal action under the Supreme Court’s own precedents. Thus, Kavanaugh’s Purcell analysis effectively suggested that there was nothing the district court could have done to stop Alabama from using an unlawful map for at least one election cycle. Like the principle of tort law that “every dog gets one free bite,” every state would get one free election cycle using unlawful district maps every ten years.

Continue reading ELB Book Corner: Steve Vladeck: “How the Shadow Docket Came Full Circle in the 2022 Redistricting Cases”
Share this:

Cleta Mitchell’s Fear of Democracy

The New York Times reported last week on an under-the-radar effort pushed by a bunch of Republican-backed dark money groups to enact new voting restrictions in time for the 2024 elections. As the group Documented has shown, in the center of all these efforts is Trump and Republican lawyer Cleta Mitchell. Her recent speeches revealed by Documented and journalist/activist Lauren Windsor show that Mitchell is not just motivated to give Republicans an advantage in the next elections; she is opposed to democracy itself. The brazenness of her anti-democratic message and her welcome reception at a recent Republican National Committee donors conference should worry all of us.

It was jarring to hear leaked recordings snipped from her presentation at a Republican National Committee donors conference in which Mitchell pushed to make it harder for college students to vote, derided voter outreach efforts by nonprofits, falsely stated that the Census Bureau messed with the apportionment of congressional seats to help Democrats, falsely stated that the U.S. Department of Education required every college receiving federal funds to include voter registration materials as part of the student enrollment package, and solicited money for her ongoing work at suppressing the vote in key battleground states going into 2024.

One might think that Mitchell, an election lawyer who advised Trump on his 2020 call with Georgia Secretary of State Brad Raffensperger in which Trump tried to get Raffensperger to “find” 11,780 votes and flip Georgia’s electoral college votes to him, would be chastened or at least circumspect about her new attempts at voter suppression. She was apparently pushed out as a partner at a major law firm for her attempts to subvert the 2020 election outcome and was subpoenaed before a grand jury in Fulton County, Georgia concerning her 2020 election subversion activities. But Mitchell is now working up new mischief through the “Election Integrity Network,” part of the Conservative Partnership Network. According to Axios, Trump authorized a $1 million donation from his PAC to support Mitchell’s work.  

Earlier in April, Mitchell was welcomed to share her plans and insights at an RNC donor conference. Journalist-activist Lauren Windsor has been releasing parts of the leaked audio of Mitchell’s talk, and some of what Mitchell said there about student voting has already made headlines in the Washington Post and elsewhere.

Mitchell lamented that Wisconsin Democrats supposedly targeted 240,000 college students in an attempt to help elect a liberal judge to the state Supreme Court in the election earlier this month. “What are these college campus locations?,” Mitchell complained. “What is this young people effort that they do? They basically put the polling place next to the student dorm so they just have to roll out of bed, vote, and go back to bed.” 

As Mitchell described the upcoming 2024 U.S. presidential election contest, she repeatedly complained about states making it too easy for people to vote. And these claims were not primarily about cheating, although there was plenty of inuendo about that too. They were instead complaints that the United States has too much democracy.

She railed against private foundations such as Mark Zuckerberg providing money to election officials to run fair and safe elections during the 2020 pandemic, after Congress failed to come up with adequate funding to do so. Participation itself is bad in Mitchell’s view, especially if resources are directed to places where Democrats may vote. 

 Mitchell also complained about the activity of charitable foundations being used to motivate more people to vote: “Civic engagement, who could be against that? Expanding the electorate? When they are talking about expanding the electorate, they’re not talking about voter registration drives. They’re talking about how came we literally manufacture voters from people who don’t really have any interest in voting and how can we do that most easily without having what they call ‘voter suppression’ is anything that would protect the integrity of the outcome….” She further lamented outreach to “underserved” communities because she said that those people would vote “90 to 95 percent” for the Democrats.

Her reference to “literally manufacturing” voters is not a claim of voter fraud, to be clear. It is a claim that these groups are motivating people to vote who otherwise would not vote. Mitchell appears to believe that if voting is too easy, the wrong people will be voting. And this is what she wants to fight against.

Mitchell argued in her presentation that many of these groups supporting voter engagement were violating the tax code, because charities cannot engage in certain campaign activities and some of these activities were directed at people who would vote for Democrats. Never mind the chutzpah that Mitchell solicited these RNC donors at this conference to give to her own charity, the Election Integrity Network, right after she told donors which states Republicans should target with voter suppression efforts to win the election in 2024. If those groups were breaking the tax code (I’m skeptical), Mitchell surely was with her own presentation too. A liberal group just filed a complaint against her group for this activity aimed at helping Republicans.

But was more interesting was her aside (at 2:45 on this video), as she was describing the names of some of the groups funded by these foundations: “Let me tell you this. Whenever anybody starts telling you that they’re worried about our democracy or protect democracy, or they’ve got democracy in their name, those are not friends of ours. Because we live in a constitutional republic, not a democracy.”

“They want it to be a democracy and change our founder’s intent,” she concluded.

There it is. Never mind Mitchell’s nonsense about the U.S. being a “republic” not a “democracy.” Voters should still have the right to elect representatives in a fair election in a “republic,” so that argument, as always, proves nothing.

Instead, focus on Mitchell’s vision: Too many people are voting. And If people can vote, Democrats will win.

There’s good reason to doubt the relationship between higher turnout and Democrats winning elections. But no reason to doubt that Mitchell is ready to disenfranchise voters to help Republicans.

She said as much in her deposition before the House special select committee investigating the January 6 insurrection and attempted overturning of the 2020 election. Responding to Trump’s attempts to get state legislatures to overturn the will of the people after they had voted for President in 2020, Mitchell said: “The Constitution of the United States grants plenary power to state legislatures to choose electors of the State. Congress has enacted a statute which is an enabling law, which I happen to think is unconstitutional, because the power granted in the Constitution to state legislatures . . . is complete and total. There’s nothing in the Constitution about allowing people, citizens to vote on electors.” She called the votes of the people for President just “advisory.”

Not chastened. Brazen. And welcomed with open arms to the RNC donor conference. Buckle up for 2024.

Share this:

ELB Book Corner: Steve Vladeck: “Purcell and the Partisan Valence of the Supreme Court’s 2020 Election Cases”

I am pleased to welcome to ELB Book Corner Steve Vladeck, author of the new book, The Shadow Docket. Here is the second of three posts:

ELB Book Corner

Yesterday’s post introduced the discussion of election cases in my new book on the shadow docket (out today!) by focusing on the significant and subjective ways in which the “Purcell principle” pushed courts to depart from regular equities-balancing analysis in election-related litigation as Election Day drew near. ELB’s Rick Hasen and others have written in detail about how this played out in cases throughout the 2010s, but perhaps the clearest crystallization of Purcell’s subjectivity—and how the Supreme Court’s use of it tended to favor Republicans and hurt Democrats—came in cases arising out of the 2020 election, and efforts to either change (or challenge local and state governments’ refusals to change) voting rules in response to the COVID pandemic.

It started with Wisconsin. Early in the pandemic, with COVID cases exploding across Wisconsin (and long before any vaccine was available), a federal district court in Madison ordered the state, among other things, to extend the deadline for receiving mail-in ballots for the state’s 2020 spring election, which included the 2020 presidential primaries plus contests for a seat on the Wisconsin Supreme Court, three seats on the intermediate state court of appeals, and several thousand other positions. Because of delays by the state in processing the record number of applications for mail-in ballots, and by the US Postal Service in delivering those ballots to voters, the district court held that a number of voters who had requested mail-in ballots in a timely fashion risked being disenfranchised through no fault of their own. Thus, the court ordered the state not only to extend the deadline for when mail-in ballots needed to be received (to six days after Election Day), but also to extend the mailing deadline, such that every mail-in ballot received by that date should be counted, even if they were mailed the day after the election.

The Seventh Circuit stayed part of the injunction but left the extension of both the mailing and receipt deadlines intact. The Supreme Court, in an unsigned, 5–4 ruling, put the original mailing deadline back into effect. Although the Court went out of its way to take no position on the merits (a punt made possible only by Purcell, since the merits would be one factor under “normal” stay analysis), it invoked Purcell for the proposition that “this Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”

But as Justice Ginsburg pointed out in her dissent on behalf of all four Democratic appointees, invoking Purcell in this context was more than a little ironic. The district court ruling extending the postmark deadline for mail-in ballots posed little risk of voter confusion, since uninformed voters would just return their ballots earlier. The Supreme Court’s own ruling was instead the one that risked creating confusion. After all, one day before the election, it was the justices themselves who had moved the postmark deadline back up to Election Day. Worse still, Ginsburg wrote, the tens of thousands of Wisconsin voters who still had not even received their mail- in ballots would now be forced to vote in person, even as COVID cases were increasing dramatically both within the state and nationwide. Under any conventional balancing of the equities, the Supreme Court should (and would) have stayed its hand. Under Purcell, it could—and did—ignore those powerful, countervailing considerations.

The inconsistency pervading the Court’s approach to Purcell was made even clearer three months later in a case arising out of Florida. In 2018, Florida voters had amended the state constitution to restore the right to vote to convicted felons who had fully served their sentences, an amendment that would re-enfranchise as many as one million voters. Florida’s Republican- controlled political branches vehemently opposed the amendment; because the population to whom it applied was overwhelmingly poor and nonwhite, the widespread assumption was that it would favor Democrats. Thus, the governor and state legislature interpreted the amendment as only applying to those released felons who had also cleared all outstanding fines, fees, and restitution, even if they could not afford to do so, or even if, as was usually the case, Florida wasn’t sure how much they even owed, because of faulty recordkeeping or a lack of clarity in the underlying judgments. When those interpretations of the felon re-enfranchisement amendment were challenged in 2019, a federal district court temporarily blocked them, holding that they were likely unconstitutional violations of due process (because many convicted felons did not and could not know how much they owed); equal protection (because they imposed a wealth barrier to voting); and the Twenty-Fourth Amendment (which prohibits poll taxes). In May 2020, the district court issued a final judgment after an eight-day trial, striking down the pay-to-vote requirements.

Continue reading ELB Book Corner: Steve Vladeck: “Purcell and the Partisan Valence of the Supreme Court’s 2020 Election Cases”
Share this: