All posts by Rick Hasen

Breaking: Supreme Court, in Order Asking for Additional Briefing in Louisiana Voting Case, Appears to Put the Constitutionality of Section 2 of the Voting Rights Act into Question

Supreme Court, Voting Rights Act

The Supreme Court just issued this order:

Louisiana had to create that second majority-minority district in order to comply with the Voting Rights Act, as it had been found to face Section 2 VRA liability for not creating that district. What the Court seems to be asking, without directly saying it, is whether Section 2 of the VRA, at least as to how it has been applied to require the creation of majority-minority districts in some circumstances, violates a colorblind understanding of the Constitution.

The stakes here are enormous; I was worried the Court would put the VRA’s constitutionality into question when there was this great delay in the Court ordering supplemental briefing. Something big was happening behind the scenes. And now we know.

This Court is more conservative than the Court that in 2013 struck down the other main pillar of the Voting Rights Act in the Shelby County case. This is a big, and dangerous, step toward knocking down the second pillar.

There was a LOOOOONG delay in SCOTUS issuing the supplemental briefing order, burying it after 5 pm on a Friday in August rather than at the end of the Supreme Court term when everyone was paying attention.

UPDATE: Page 36-38 of appellees’s brief, referenced in the order above, make it clear that Section 2’s constitutionality is being put into question:

Share this:

“Eligible Voters at Risk: Examining Changes to USCIS’s SAVE System.”

election administration

New issue brief from the Fair Elections Center:

Changes fueled by election-denier conspiracy theories are in the works for a system created by the Department of Homeland Security (“DHS”) nearly forty years ago to verify citizenship status and legal presence in the United States. DHS recently announced major modifications to its Systematic Alien Verification for Entitlements system, or SAVE, for the state and local election agencies that use it in the voting context (not to be confused with the anti-voter SAVE Act which is pending in Congress and fueled by the same conspiracy theories ). Most significantly, state and local agencies can now query the system using Social Security numbers and submit queries in bulk uploads. Though technical in nature, these changes may impact voters across the country, especially as more states sign up to use the retooled system.

The SAVE system is administered by DHS via U.S. Citizenship and Immigration Services (“USCIS”). Originally created by the Immigration Reform and Control Act of 1986 and then expanded by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the SAVE system is used to verify or determine citizenship in response to inquiries from federal, state, and local officials, usually related to applications for public benefits. In recent years, state and local election officials in certain states have used SAVE to verify the citizenship of voter registrants and currently registered voters who provide a DHS-issued immigration identifier. User agencies sign a memorandum of agreement (“MOA”) with USCIS and, in the past, were charged a fee for each case they submitted to SAVE. Prior to the Trump administration, ten states had MOAs to use SAVE for voter registration and/or list maintenance purposes: Arizona, Colorado, Florida, Georgia, Idaho, Mississippi, Ohio, South Carolina, Tennessee, and Virginia….

Share this:

“Forged signatures found on Mayor Adams’ petitions to run as an independent”

ballot access, chicanery

Gothamist:

Mayor Eric Adams’ re-election campaign submitted faked and fraudulently obtained petition signatures in his effort to secure a spot on the November ballot as an independent candidate, a Gothamist investigation has found.

Gothamist reviewed signatures submitted from across New York City and found people who said their names were forged, as well as people who said they were deceived into signing the petitions. In at least three instances, the campaign turned in signatures from dead people.

Under state law, Adams needed to submit at least 7,500 signatures from voters who wanted him on the general election ballot as an independent. The tactic enabled the incumbent mayor to avoid a crowded Democratic primary race that was shaping up as a referendum on the federal corruption charges he once faced and his growing ties to President Donald Trump.

The Adams campaign hired several companies to deploy employees across the city and gather signatures of registered voters in New York City who supported the mayor’s re-election.

Signature gatherers were required to sign a form pledging that each signature they collected was from the person whose name appeared on the sheet. But an executive from one company said he also warned the Adams campaign that it should run additional quality control measures – a suggestion he said the campaign rejected. In response to Gothamist’s inquiries, the campaign said it expected the companies it hired to follow the law but nevertheless pledged to now conduct its own review of the signatures….

Share this:

Alaska Supreme Court Finally Explains Its Ballot Access Order from September 2024 in Divided Decision

ballot access

Alaska Democratic Party v. Beecher:

This case concerns a challenge to the Alaska Division of Elections’ inclusion of Eric Hafner — a federal prisoner in New York — as one of the four candidates on the 2024 general election ballot for the United States House of Representatives. Hafner finished in sixth place during the open primary under rankedchoice voting, but the Division elevated him to appear on the general election ballot after two of the top-four primary candidates timely withdrew. The Alaska Democratic Party and Anita Thorne, a registered Democrat (collectively ADP), argue that Hafner cannot be elevated to the general election ballot because Alaska law allows a single replacement for a withdrawn candidate: the fifth-place candidate in the primary election. The superior court rejected ADP’s claims for injunctive and declaratory relief.
Due to the time-sensitive nature of election appeals, we affirmed the superior court in a short order dated September 12, 2024. We now explain our reasoning in full, holding that the laws establishing ranked-choice voting require successive replacements on the general election ballot if more than one top-four primary candidate timely withdraws and additional primary candidates are available as replacements.

The majority relied in part upon Alaska’s particularly strong use of the democracy canon.

From the single-justice dissent:

“Fifth” has a clear meaning — the one that comes after the fourth. And the statute fixes its application to “the candidate . . . in the primary election.” The “candidate who received the fifth most votes in the primary election” therefore clearly means the candidate who received the next highest number of votes in the primary election after the candidate who received the fourth highest number. I fail to see “the facial ambiguity in the statute”2 that the court identifies as the reason to undertake its circular journey through principles of statutory interpretation to arrive at its starting point of the ambiguity it posited. I respectfully dissent.

Share this:

“‘Clinton Plan’ Emails Were Likely Made by Russian Spies, Declassified Report Shows”

chicanery

NYT:

The Trump-era special counsel who scoured the Russia investigation for wrongdoing gathered evidence that undermines a theory pushed by some Republicans that Hillary Clinton’s campaign conspired to frame Donald J. Trump for colluding with Moscow in the 2016 election, information declassified on Thursday shows.

The information, a 29-page annex to the special counsel’s 2023 report, reveals that a foundational document for that theory was most likely stitched together by Russian spies. The document is a purported email from July 27, 2016, that said Mrs. Clinton had approved a campaign proposal to tie Mr. Trump to Russia to distract from the scandal over her use of a private email server.

The release of the annex adds new details to the public’s understanding of a complex trove of 2016 Russian intelligence reports analyzing purported emails that Russian hackers stole from Americans. It also shows how the special counsel, John H. Durham, went to great lengths to try to prove that several of the emails were real, only to ultimately conclude otherwise….

Even as the releases shed more light on a seismic political period nearly a decade ago, Mr. Trump and his allies have wildly overstated what the documents show, accusing former President Barack Obama of “treason.”

The release of the annex was no exception. John Ratcliffe, the C.I.A. director, said in a statement that the materials proved that suspicions of Russian collusion stemmed from “a coordinated plan to prevent and destroy Donald Trump’s presidency.”

And Kash Patel, the F.B.I. director, who has a long history of pushing false claims about the Russia investigation, declared on social media that the annex revealed “evidence that the Clinton campaign plotted to frame President Trump and fabricate the Russia collusion hoax.”

In reality, the annex shows the opposite, indicating that a key piece of supposed evidence for the claim that Mrs. Clinton approved a plan to tie Mr. Trump to Russia is not credible: Mr. Durham concluded that the email from July 27, 2016, and a related one dated two days earlier were probably manufactured.

Share this:

“Elon Musk gave Trump and the GOP $15M even as he was fighting with the president”

campaign finance, campaigns

Politico:

Elon Musk gave $5 million to Donald Trump’s super PAC during a dramatic and bitter falling out with the president, new filings show.

The donation to MAGA Inc. was made a month after Musk said he had “done enough” political spending, and he also gave $10 million that same day to help Republicans keep control of Congress.

The contributions came weeks into Musk’s public feud with Trump, as the tech billionaire was slamming Republicans for voting for the megabill that he argued would blow up the deficit. Still, the SpaceX CEO donated $5 million each to the Congressional Leadership Fund, the Senate Leadership Fund and MAGA Inc. on June 27, according to the groups’ filings with the Federal Election Commission on Thursday. Those are the top super PACs supporting the House and Senate Republicans and the Trump political operation.

The next week, the world’s richest man said he would start his own political party.

Musk, who spent $290 million of his own money to boost Trump and other Republicans last year, led the cost-cutting efforts of the so-called Department of Government Efficiency in the first few months of the Trump administration. When he left that role in May, he also suggested he was done with political giving for the time being: “If I see a reason to do political spending in the future, I will do it. I don’t currently see a reason,” he said at the Qatar Economic Forum.

The $5 million donation to the Trump-linked super PAC MAGA Inc. came weeks after Musk had torched Trump on social media, first over policy differences surrounding the president’s megabill, but also in escalating personal attacks. Musk later deleted some posts, but resumed his criticism of Trump, including his administration’s handling of the Jeffrey Epstein files, in July….

Share this:

“Trump, Term-Limited, Amasses $200 Million War Chest for Political Ambitions”

authoritarian threats in US, campaign finance, campaigns

NYT:

President Trump’s super PAC is sitting on about $200 million that it can spend against his rivals, giving a term-limited president a never-before-seen amount of power in his party’s finances and future.

In the first half of 2025, Mr. Trump’s group, MAGA Inc., collected about $177 million from the likes of Elon Musk, Mr. Trump’s erstwhile ally, the TikTok investor Jeffrey Yass and the Silicon Valley executives Ben Horowitz and Marc Andreessen, according to a filing on Thursday with the Federal Election Commission.

Mr. Trump has been able to capitalize on a thirst from corporate America to get into his good graces. He held a half-dozen fund-raisers for his super PAC this year with tickets costing seven figures a seat. At the dinners, often held at one of Mr. Trump’s properties, executives and lobbyists had the chance to tell the president about their businesses.

The super PAC’s exact cash on hand is $196.1 million, according to the filing.

There is no precedent for politicians so aggressively raising money for their own entities when they do not have a campaign to use it for. In the first half of 2013, a similar political group supporting a term-limited Barack Obama, Priorities USA, raised just $356,000. As of that June, it held $3.4 million, less than 2 percent of the cash on hand of Mr. Trump’s super PAC.

The money raised by MAGA Inc. during the first six months of the year is almost twice the amount collected by the Republican National Committee, which is subject to contribution limits. Mr. Yass donated $16 million to the super PAC and Mr. Horowitz and Mr. Andreessen combined to donate an additional $11 million. His group also collected several seven-figure contributions from crypto companies, an industry that Mr. Trump has embraced, and $5 million from a crypto entity co-founded by the OpenAI chief Sam Altman.

That Mr. Trump is raising so much money for his group has confounded some Republicans.

Some of Mr. Trump’s most loyal supporters have argued that he should try to run for a third term, despite it being unconstitutional. Mr. Trump’s aides have argued that he would be foolish not to accept money that is essentially for the taking, and that the assets can be used to target Mr. Trump’s rivals, beginning with Representative Thomas Massie, a Kentucky Republican whom MAGA Inc. is attacking. Mr. Massie broke with Mr. Trump on the president’s decision to bomb Iran and on his domestic bill.

With a $200 million war chest, MAGA Inc. figures to be a big part of Republican primaries, making Mr. Trump’s endorsements in those races all the more important. The money is sure to be spent on advertising to back Mr. Trump’s endorsed candidates….

Share this:

“Old money: Campaign finance and gerontocracy in the United States”

campaign finance, campaigns

Adam Bonica and Jacob Grumbach have written this article for the Journal of Public Economics. Here is the abstract:

Politicians in the United States rank among the oldest globally. This study examines how money in politics contributes to age inequality in political representation. Using record-linkage to construct a novel data set combining the ages of voters, donors, and candidates, we find that the median dollar in US elections comes from a 66-year-old — significantly older than the median voter, candidate, or elected official. Results from within-district and within-donor analyses confirm that age proximity with candidates increases contributions on the extensive and intensive margins. Finally, we simulate candidate fundraising by age under a hypothetical campaign finance voucher policy.

Share this:

“Smithsonian removes Trump from impeachment exhibit in American History Museum”

chicanery

Wapo:

The Smithsonian’s National Museum of American History in July removed references to President Donald Trump’s two impeachments from an exhibit display. A person familiar with the exhibit plans, who was not authorized to discuss them publicly, said the change came about as part of a content review that the Smithsonian agreed to undertake following pressure from the White House to remove an art museum director.

A temporary label including content about Trump’s impeachments had been on display since September 2021 at the Washington museum, a Smithsonian spokesperson told The Washington Post, adding that it was intended to be a short-term addition to address current events. Now, the exhibit notes that “only three presidents have seriously faced removal.”

In addition to describing Trump’s two impeachments, the temporary label — which read “Case under redesign (history happens)” — also offered information about the impeachments of presidents Andrew Johnson and Bill Clinton as well as Richard M. Nixon, who would have faced impeachment had he not resigned. The Washington Post viewed a photograph of the temporary signage….

“In reviewing our legacy content recently, it became clear that the ‘Limits of Presidential Power’ section in The American Presidency: A Glorious Burden exhibition needed to be addressed,” the spokesperson said in a statement. “The section of this exhibition covers Congress, The Supreme Court, Impeachment, and Public Opinion. Because the other topics in this section had not been updated since 2008, the decision was made to restore the Impeachment case back to its 2008 appearance.”

The change coincides with broader concerns about political interference at the Smithsonian and how the institution charged with preserving American history could be shaped by the Trump Administration’s efforts to exert more control over its work.

Share this:

California: “Gavin Newsom floats November special election for his anti-Trump redistricting push”

redistricting

Politico:

Gov. Gavin Newsom said Thursday he will likely call a November special election to have voters approve new House maps that boost Democrats.

By embracing a public vote, Newsom teed up a nationalized contest that opens a prominent front in national Democrats’ efforts to thwart President Donald Trump’s agenda. Newsom has vigorously embraced the party’s push to counter a GOP-friendly Texas gerrymander by buoying Democrats in blue states like California, arguing Trump has left the party no choice….

The governor’s remarks were his most detailed yet since he first vowed to counter Texas’ GOP-buoying gerrymander by having California redraw its boundaries. Newsom had formerly said he was also considering having the Democratic-dominated Legislature simply draw new maps, circumventing the voters who enshrined an independent commission in 2010.

But Newsom backed away from that option Thursday, signaling he would prefer to put the issue to voters. He said the new maps would remain in place for the next three election cycles, after which the commission would draw new lines as scheduled.

“We’re not here to eliminate the [independent redistricting] commission,” Newsom said. “We’re here to provide a pathway in ’26, ’28, and in 2030 for congressional maps on the basis of a response to the rigging of the system of the president of the United States.”…

Share this:

“The Fact Checker rose in an era of false claims. Falsehoods are now winning.”

cheap speech

Glenn Kessler’s final WaPo column as their fact checker:

In reviewing many of the some 3,000 fact checks I have written or edited, there is a clear dividing line: June 2015, the month Donald Trump rode down the Trump Tower escalator and announced he was running for president….

In ending its work with fact-checkers, Meta chief executive Mark Zuckerberg falsely claimed that fact-checkers censored free speech by being “too politically biased,” echoing Trump administration arguments. The Washington Post did not participate in the Meta program, but any Facebook user had the option to opt out of having posts fact-checked. Many fact-checkers would liken their work to nutritional labels on snack foods — providing more information about online content. People are free to ignore the warnings, just as people can ignore nutritional labels….

In 2016, Trump’s opponents still cared about the facts. Florida Gov. Jeb Bush’s (R) campaign had a wall where they posted positive fact checks. Ohio Gov. John Kasich (R) dropped a talking point simply in response to my question for a possible fact check. Hillary Clinton’s staff worked hard to find policy experts to vouch for her statistics. (Her comments on her private email server were less defensible).

But Trump didn’t care. He kept rising in the polls and eventually won the presidency. Other politicians took notice and followed his lead.

Besides Trump, something else changed the nature of truth in the mid-2010s: the rise of social media. The Fact Checker was launched in 2007, one year after the creation of Twitter and when Facebook had only 50 million users. By 2012, Facebook had 1 billion followers; it reached nearly 1.6 billion in 2015. Trump adroitly used Twitter — where he had 2.76 million followers at the start of 2015 — and other social media to spread his message. Trump’s call to ban Muslims from entering the United States was the most talked about moment on Facebook among the 2016 candidates in all of 2015, according to Facebook data.

Social media helped fuel the rise of Trump — and made it easier for false claims to circulate. Russian operatives in 2016 used fake accounts on social media to spread disinformation and create divisive content — tactics that led companies such as Meta to begin to use fact-checkers to identify misleading content. But the political forces which benefited from false information — such as Trump and his allies — led a backlash against such efforts, saying it was a form of censorship. Now tech companies are scaling back their efforts to combat misinformation….

During Trump’s first term, The Fact Checker team documented that he made more than 30,000 false or misleading claims. Week after week, I would write fact checks unpacking his latest misstatements, and Trump generally earned Four Pinocchios — the rating for a whopper. But I sense that the country has gotten so used to Trump exaggerating the truth that it no longer seems surprising. I chose not to repeat the exercise in his second term…

Share this: