All posts by Rick Hasen

The Parallels in the TikTok Ban Case and Regulation of Campaign Spending by Foreign Nationals

campaign finance, First Amendment theory

The DC Circuit has held that the U.S. government can force the sale or shutting down of TikTok because of concerns about the influence of the Chinese government over the actions of the platform’s parent company. Among other things, the court rejected an argument that shutting down the platform violated TikTok’s First Amendment rights. The D.C. court wrote: “In this case, a foreign government threatens to distort free speech on an important medium of communication.”

So while under the Supreme Court’s NetChoice case, government content moderation control violates the First Amendment, when it comes to foreign controlled platforms under the TikTok case, government content moderation control prevents distortion and promotes First Amendment values.

In reading the DC Circuit opinion , I was reminded of a parallel dispute in the campaign finance arena over limiting spending by foreign nationals. In Citizens United, the Court held that domestic corporations cannot be limited in how much they can spend to influence federal elections. Citizens United rejected the argument, previously accepted in cases such as Austin v. Michigan Chamber of Commerce, that preventing distortion of the political marketplace could justify such a ban.

And yet the Court in Bluman v. FEC soon after Citizens United allowed a complete ban on spending by foreign nationals, citing the interest in preserving democratic self-government. As I’ve explained, this too is an anti-distortion rationale.

In Bluman and TikTok, the courts reached divergent conclusions because of the foreign identity of the speaker. But they don’t recognize the tension.

The D.C. Circuit did not cite Bluman in TikTok but it might as well have. When the case makes its way to SCOTUS, I expect the Bluman parallel will get some play.

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Dec. 12 ALI-CLE Webinar: Legal Insights and Takeaways from the 2024 Election

pedagogy

This ALI-CLE program may be of interest to ELB readers:

December 12 | 12:00 – 1:00 p.m. ET

Applying the coupon code ART12COLL in your cart will bring the price from $199 to $79.

In this webcast, two election law experts, Tony Gaughan and Steve Huefner, will offer legal insights into the 2024 Election. They will explore the latest developments in election law, including the changing landscape of the voting process, election certification, election system reform (such as ranked choice voting and open primaries), gerrymandering, campaign finance, recount procedures, and election litigation.

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How Much Do Laws Listing Candidates from the “Prevailing Party” in the Last Election Improve That Party’s Chances of Victory?

election administration

New article from Darren Grant in Social Science Quarterly:

Objective

This article examines the incidence and effects of the most common ballot ordering procedure used in U.S. general elections, Prevailing Party laws, which give the most advantageous ballot position to the currently prevailing political party.

Methods

Panel regression and regression discontinuity analyses are applied to almost 50 years of county-level election data from Wyoming.

Results

Prevailing Party laws generally increase the favored candidate’s vote share by two percentage points or more, enough to flip the result of roughly 1 percent of major elections nationwide.

Conclusions

The effect of Prevailing Party laws is substantially larger than that of more innocuous ballot ordering schemes, due to “endorsement effects” these other schemes lack. The existing literature, which exclusively analyzes these other schemes, substantially understates the degree to which ballot order can be used to maintain political power.

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North Carolina: “GOP candidate protests the ballots cast by his opponent’s parents in state Supreme Court race”

judicial elections, recounts

WUNC:

The North Carolina State Board of Elections voted unanimously Tuesday to certify the 2024 elections, except for a handful of contests under recount and protest. That includes the race for a seat on the state Supreme Court in which the Republican candidate has challenged the validity of more than 60,000 ballots, including two cast by his opponent’s parents.

Republican Jefferson Griffin, a judge on the North Carolina Court of Appeals trails Justice Allison Riggs, the Democratic incumbent, in the race for Seat 6 on the state Supreme Court. But the margin between them— 625 votes — is close enough under state law to require the recount demanded by Griffin.

Griffin’s campaign has also filed protests across the state, claiming tens of thousands of ballots should be disqualified for a host of reasons. The claims include ballots allegedly cast early by people who subsequently died before Election Day, ballots cast by people who haven’t completed the terms of a felony conviction, and ballots cast by overseas citizens who have not resided in North Carolina but whose parents or legal guardians were eligible North Carolina voters before leaving the United States.

However, the vast majority of ballot protests are aimed at what the Griffin campaign claims are cases of incomplete voter registrations. According to those protests, these ballots should be disqualified because the registration data do not include the voter’s driver’s license number or the last four digits of their Social Security number.

The basis for this protest is the same as one in a lawsuit filed by the North Carolina Republican Party and the Republican National Committee claiming 225,000 voters should be removed from the state’s rolls due to incomplete registration. A Donald Trump-appointed federal district court judge dismissed a main part of that lawsuit in October….

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“Donald Trump’s return sends shivers through the anti-misinformation world”

cheap speech

Financial Times:

The incoming Trump administration’s vow to dismantle the leftwing “censorship cartel” has thrown a shadow over the cottage industry of academics, non-profits and researchers that sprang up to combat a tide of digital misinformation — and threatens to disrupt the Big Tech companies behind the world’s most popular platforms. 

Researchers fear Donald Trump will make good on his past promises to crack down further on the misinformation field in the US for alleged “election interference”. Among those threats, he has said he would seek to curb funds to any universities found to have engaged in censorship activities “such as flagging social media content for removal or blacklisting” for at least five years. He has signalled the seriousness of his intentions by choosing Brendan Carr as the new chair of the Federal Communications Commission.

The Republican commissioner has echoed the forthcoming president’s rhetoric on “free speech” and “dismantling censorship”. Trump’s efforts have also received public support from Silicon Valley heavyweights, including a16z co-founder Marc Andreessen and billionaire entrepreneur Elon Musk, now one of the president-elect’s most visible allies. …

“I’m pretty fucking scared,” said one professor in the field, speaking on condition of anonymity due to fears of retribution. “If this stuff happens, I will be on a plane [out of America].”

Another professor said the rhetoric had placed pressure on individuals but also universities and colleges at an institutional level, and that discussions were being held internally about how to prepare. “It’s an existential threat to my livelihood and [our] research funding.”…

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New NCSL Resource on State Voting Rights Acts

Voting Rights Act

This looks like it will be very useful: Eight states have enacted their own Voting Rights Acts: California, Connecticut, Illinois, Minnesota, New York, Oregon, Virginia and Washington. These state VRAs mirror the federal VRA in many ways and are often more detailed than the federal act. This page summarizes common state VRA provisions and provides an interactive map and tables showing the provisions within each state’s law.

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Must-Read Charlie Savage: “End of Trump Cases Leaves Limits on Presidential Criminality Unclear”

authoritarian threats in US, chicanery, Department of Justice, Supreme Court

Charlie in the NYT:

The end of the two federal criminal cases against President-elect Donald J. Trump on Monday left momentous, unsettled questions about constraints on criminal wrongdoing by presidents, from the scope of presidential immunity to whether the Justice Department may continue to appoint outside special counsels to investigate high-level wrongdoing.

Both cases against Mr. Trump — for his attempt to overturn the 2020 election and his later hoarding of classified government documents and obstruction of efforts to retrieve them — were short-circuited by the fact that he won the 2024 election before they could be definitively resolved.

Jack Smith, the special counsel who brought both cases against Mr. Trump, asked courts on Monday to shut them down. The prosecutor cited the Justice Department’s longstanding view that the Constitution implicitly grants temporary immunity to sitting presidents, lest any prosecution distract them from their official duties.

The result is not just that Mr. Trump appears set to escape any criminal accountability for his actions. (Mr. Smith left the door open to, in theory, refiling the charges after Mr. Trump leaves office, but the statute of limitations is likely to have run by then.) It also means that two open constitutional questions the cases have raised appear likely to go without definitive answers as Mr. Trump takes office.

One is the extent of the protection from prosecution offered to former presidents by the Supreme Court’s ruling this summer establishing that they have a type of broad but not fully defined immunity for official acts taken while in office.

The other is whether, when a president is suspected of committing crimes, the Justice Department can avoid conflicts of interest by bringing in an outside prosecutor to lead a semi-independent investigation into the matter.

The uncertainty that will linger over those questions could have implications for the future of American democracy beyond whatever constraints Mr. Trump will — or will not — feel over the course of his second term….

Beyond saying that a president’s interactions with the Justice Department were a type of official conduct that was absolutely immune — meaning a president can now use his supervisory control of the nation’s federal law enforcement system to commit crimes with impunity outside of the potential for impeachment — Chief Justice Roberts left much ambiguous.

For example, he raised without resolution the possibility that Mr. Trump’s pressuring of his vice president, Mike Pence, to abuse his role presiding over the joint session of Congress that certified the 2020 election might fall into an exception the Supreme Court created for official conduct that would not be immune from prosecution.

He also did not definitively say whether most of the other actions for which Mr. Trump was charged — like spreading lies about voter fraud and conspiring to recruit fake pro-Trump electors from states that Mr. Trump had lost — counted as the unofficial conduct of a candidate for office, or as the official conduct of a president whose job includes taking care that election laws are faithfully executed.

The ruling was also silent about a key issue for any president who might abuse his official powers: whether subordinates who take an illegal action in response to presidential direction are also immune or would themselves risk prosecution for obeying their boss….

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“Top Trump Aide Accused of Asking for Money to ‘Promote’ Potential Appointees”

chicanery

NYT:

President-elect Donald J. Trump’s legal team found evidence that a top adviser asked for retainer fees from potential appointees in order to promote them for jobs in the new administration, five people briefed on the matter said on Monday.

Mr. Trump directed his team to carry out the review of the adviser, Boris Epshteyn, who coordinated the legal defenses in Mr. Trump’s criminal cases and is a powerful figure in the transition. Several people whom Mr. Trump trusts had alerted him that Mr. Epshteyn was seeking money from people looking for appointments, three of the people briefed on the matter said.

David Warrington, who was effectively the Trump campaign’s general counsel, conducted the review in recent days, the results of which were described to The New York Times. The review claimed that Mr. Epshteyn had sought payment from two people, including Scott Bessent, whom Mr. Trump recently picked as his nominee for Treasury secretary.

According to the review, Mr. Epshteyn met with Mr. Bessent in February, at a time when it was widely known that he was interested in the Treasury post, and proposed $30,000 to $40,000 a month to “promote” Mr. Bessent around Mar-a-Lago, Mr. Trump’s estate in Florida.

Mr. Bessent declined. He also did not partake in another effort by Mr. Epshteyn, described in the report, to get him to invest in a three-on-three basketball league, but played along with him to avoid offending such a seemingly powerful figure in Mr. Trump’s world.

Mr. Bessent then called Mr. Epshteyn on Nov. 14 to see whether he was criticizing Mr. Bessent to people around Mr. Trump, the review said. Mr. Epshteyn told Mr. Bessent that it was “too late” to hire him and that he was “Boris Epshteyn,” with an expletive between the two names. He then suggested the hiring was for consulting….

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“Riggs’ lead drops by 67 votes as 60 counties complete NC Supreme Court recount”

judicial elections

Carolina Journal:

With 60 of North Carolina’s 100 counties completing recounts in a closely contested state Supreme Court race, appointed incumbent Democrat Allison Riggs’ lead has dropped by 67 votes over Republican challenger Jefferson Griffin. Riggs still leads Griffin by 655 votes as the remaining counties continue their counts.

The count must be complete by Wednesday. Wake, Mecklenburg, and Guilford counties are among the counties yet to report recount results.

Griffin has gained a net of 17 votes among counties that have finished their work, including eight more votes in both Gaston and Person counties. Griffin lost 13 votes in Durham County.

Meanwhile, Riggs has lost a total of 50 votes. She lost 21 votes in Lenoir County and 14 in Durham. Riggs gained six votes in Watauga County.

As the recount continues, Griffin also is pursuing challenges of more than 60,000 votes statewide.

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“2024 marks a 21st century rarity: Almost everyone thinks the election results are legitimate”

Uncategorized

Harry Enten for CNN:

the reaction from Democrats to Donald Trump’s 2024 victory is, to put it mildly, very much unlike their reaction to his 2016 win. Instead of mass protests in the streets, Democrats have been, for the most part, quiet.

Indeed, the aftermath of the 2024 election almost looks like it is from a bygone era. This is the first presidential election in at least a decade when pretty much everyone on the losing side has reached the fifth stage of grief: acceptance.

Take a look at recent polling from Reuters/Ipsos. When asked whether Trump’s win was legitimate, about 94% of voters said it was. This includes 64% who agreed that Trump’s win was legitimate and supported his presidency and another 30% who accepted Trump’s victory but indicated that they would oppose his presidency.

Only about 6% of registered voters said they did not accept the results as legitimate.

Democrats feel basically the same way. About 90% said the results were legitimate, while very few (about 10%) said they were not.

Compare that to where we were four years ago in the aftermath of the 2020 campaign. A Quinnipiac University poll found that 60% of voters said Biden’s win was legitimate while 34% said it wasn’t. Among Republicans, over two-thirds (70%) argued Biden’s victory was illegitimate.

That high percentage of Republicans who thought Biden’s win was illegitimate has pretty much held firm since. Trump, of course, flamed those beliefs by never conceding to Biden and consistently arguing the election was rigged. Trump’s claims were, of course, unfounded….

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