As I noted earlier on this blog, the Court was faced with a procedural mess (I called it a “train wreck”) in the LA redistricting case. Two different federal courts had issued two decisions which left LA with no valid congressional map in place. The first federal court said LA’s original map violated the Voting Rights Act; the second federal court said the new map LA enacted to remedy the VRA violation itself violated the Constitution.

Today, the Court stayed that second decision. The effect of that stay is the state’s remedial map — which creates 2 VRA districts rather than just the 1 the state had created initially — will be the map LA uses this fall.

The stay application apparently got tangled up with Purcell issues, but the Court didn’t have to say anything about Purcell even if it were going to issue the stay. The Court was up against some tight deadlines regardless of any issue about Purcell. It basically had two options:

1. The Secretary of State represented very forcefully to the Court that she had to know which map was in place by today, in order to meet the series of deadlines the state’s election laws rolled out from here on in. If the Court accepted those representations, then the case for issuing a stay was strong.
2. The other side disputed whether May 15th was such a firm deadline. If the Court thought there was a bit more play in the joints, then it did not have to issue the stay today. The Court could have given a couple more weeks for the next stage of the remedial process to play out (the lower court had stated it would have a remedial map in place by June 4th). Justice Jackson’s dissent disagreed that the May 15th deadline was so important, but didn’t explain why; she simply noted that the lower court had disagreed with the Secretary of State’s representation.

The majority could have said we aren’t in a position to second guess the Secretary of State’s representation that May 15th is a firm deadline by which a map must be in place in order to meet the rest of the election deadlines under the state’s laws. Because we accept that representation, we issue the stay. That would not require invoking Purcell or deciding how it ought to apply in this procedurally messy situation. Since I would imagine the Secretary of State’s representation did play a major role in the Court’s stay decision, the Court could have justified the stay, if it accepted the SOS’s representation, without bringing Purcell into the picture.

The stay applications before the Supreme Court this week on Louisiana’s congressional map represent the biggest procedural quagmire in a Voting Rights Act I can recall seeing:

1. One federal court held that Louisiana’s newly enacted map, after the 2020 Census, violated the VRA.

2. When LA then then enacted a remedial map, a different federal court held the remedial map violated the Constitution. So right now, LA has no valid map for this year’s congressional elections.

3. But on top of this, LA’s Secretary of State has told the Court she has to have a map in place by May 15th — Wednesday — to meet critical election deadlines that start rolling out.

The stay issues will be fully briefed before the Court this am. LA asks the Court to stay the second federal court decision, let it use a map this fall which that lower court has has held unconstitutional, but also hear the case on the merits down the road.

4. On the merits, if the Court agrees to hear the case this fall, the case presents the tension between the use of race in redistricting that the VRA might require and the constitutional constraints that also apply to the use of race in redistricting (particularly when a State is creating a remedial map after a judicial finding that the VRA requires a remedy). This is the search for what Chief Justice Roberts called, in the case I argued on these issues from Alabama, “the sweet spot” on the use of race in redistricting.

Update: Now that the opposing briefs have been filed, I can report that the respondents take issue with the Secretary of State’s assertion that a map must be in place by May 15th. They also argue that remedial proceedings are currently going on before the second federal court, which has committed to adopting a remedial map by June 4th.

In South Dakota, reformers have gathered far more signatures than needed to get a measure on the ballot in November that would create a Top Two open primary, much like CA and WA use. Those signatures now have to be validated. I prefer the Alaska model of a Top Four primary, but it’s impressive to see how much primary reform is becoming a matter of focus in many state ballot measures for this fall.

Rick Pildes here. A month after Jan. 6, 2021, I wrote an essay in the New York Times asserting that “every political reform proposal must [now] be judged by its ability to fuel or weaken extremist candidates.” I’ve now posted at SRRN a much fuller essay, entitled “Political Reforms to Combat Extremism,” which is forthcoming as a book chapter in a book out this fall entitled Our Nation at Risk: Election Integrity as a National Security Issue (J. Zelizer and K. Greenberg eds).

Here is the link to that forthcoming article and the abstract:

This article first identifies different ways of defining political extremism. It then explores empirical perspectives on the extent to which current political extremism and affective polarization are driven from the top down (political elites) or the bottom up.

After addressing these issues, the article then turns to five areas of institutional reform that could help mitigate political extremism: (1) replacing the traditional party primary; (2) changes to the presidential nominations process; (3) the right reforms of campaign finance; (4) greater emphasis on competitive election districts; and (5) changes to voting systems.

There is no silver bullet or set of institutional reforms that can magically transform our political culture. But institutional reforms can at least mitigate to some extent the political extremism that currently characterizes American political culture and politics.

This story reports that proponents of this ballot measure appear to have gained enough signatures to get the measured qualified for the ballot this fall. This is “the Alaska model” of primary reform, a reform that both Ned Foley and I support and have written extensively about.

During last week’s arguments on this issue, the Special Counsel took the position that there are a significant number of limitations on potential criminal prosecutions of ex-Presidents. These limitations would provide ex-Presidents with functional immunity, when they apply. They are not technically immunity from suit, which has its own distinct procedural aspects; when immunity applies in the technical sense, for example, the ex-President can raise this before trial and take an immediate (interlocutory) appeal if the argument is rejected. But these limitations would mean an ex-President could not be criminally convicted when they apply. Here’s a list of circumstances, according to the SC, in which an ex-President is functionally immune:

1. If the Attorney General gives the President advice that an action is legal, that provides an absolute defense. The SC, when asked this, responded very clearly that yes, it would be a “root violation of due process” to prosecute for that. At another point, the SC qualified this a bit by saying this would violate due process, “absent the kind of collusion or conspiracy that itself represented a criminal violation…”
2. The SC argued that Congress cannot criminalize presidential conduct in areas where doing so would interfere with an exclusive presidential power under Art. II or “that would prevent the president from accomplishing his constitutionally assigned functions.” As examples, he noted that pardon power; the veto power; the appointments power; the recognition of foreign governments; a small area of the commander-in-chief power, such as decisions about direction troops on the battlefield.
3. The SC’s position is that official acts can only be prosecuted when they are undertaken for “private gain.” This is a significant point which is easily missed. It means that disputes over whether a President acted lawfully in his official capacity cannot be turned into criminal prosecutions unless, in addition to the liability elements of the criminal statute, the President was also acting for private gain. To give a concrete example, US law makes it a domestic crime to commit certain “war crimes.” But even if some use of force by a President were to be considered a war crime by some international law standard, he could not be criminally prosecuted domestically, under the SC’s view, unless that use of force is found to have been undertaken for “private gain.” Abuse of office, under this view, means more than acting unlawfully; it means doing so for “private gain.” UPDATE: Marty Lederman has suggested to me that the SC meant to argue that private gain is sufficient to defeat immunity, but not necessary. I can see that possibility. But nothing in the SC’s argument made that point clearly. If he meant to say private gain was only one context in which immunity should not be recognized, that point did not come across.
4. The SC also argued all criminal law statutes should be understood to exclude from liability any action for which there is a “public authority” defense. This defense justifies conduct that is authorized by laws defining the duties or functions of (in this case) the President. The SC’s position, I think (less certain here) is that this defense does not turn on the subjective motives for which the P. acted. It turns on an objective characterization about the nature of his/her acts.
5. The SC acknowledged that criminal statutes applied to ex-Presidents must be construed so as to avoid serious constitutional questions about whether if applied they would interfere with a President’s ability to carry out his constitutionally assigned functions. This is different, and much narrower, than a principle that criminal statutes cannot be applied to an ex-President unless they specifically mention the presidency. But it is still a limitation on potential criminal liability for an ex-President; as Justice Sotomayor put it, this (and these other points) reflect “narrowing principles to the concept that the P. is subject to all criminal laws in all situations.”
6. The SC also stated that a politically driven prosecution of an ex-President would be selective prosecution and unconstitutional under Wayte v. United States.

Some of these limitations on presidential criminal accountability might overlap. And I’m not entirely clear about the SC’s position on some of them. At times, for example, he seems to suggest there can never be criminal liability for the P’s exercise of an Art. II power like the pardon power. At other times, he seems to suggest the P could be prosecuted for taking a bribe in return for granting a pardon (though the pardon would still stand).

There are two ways of looking at all these limitations. On the one hand, the SC is telling the Court there’s no need to adopt a sweeping immunity for all official acts, given that all these other limitations exist. From another perspective, these are acknowledgements that a President (or an ex-President) does have functional immunity from a significant range of potential criminal prosecutions.

Ned Foley blogged yesterday about The Dunwody Symposium which starts today at the University of Florida. For those of you who prefer visual information rather than text, here are the full details, starting with Ned himself this am, along with Derek Muller, Josh Sellers, and Justice Sasso of the Florida Supreme Court on the first panel:

As I’ve written before, a mistake many political reformers make is in assuming that most citizens are as engaged in politics as the reformers are, or would be if given the appropriate opportunities. A new paper on the Seattle campaign voucher system concludes that providing campaign vouchers to all citizens does not increase the diversity of those who donate to campaigns. Abstract here:

Donating to a campaign is inherently costly, and as a result the composition of campaign donors differs from the composition of the electorate. What happens when the financial barriers to campaign finance participation are removed? This paper analyzes Seattle’s recent campaign finance reform, where all registered voters receive four $25 vouchers to donate to candidates abiding by stricter campaign finance restrictions. Utilizing individual- and census block group-level data combined with administrative donation records, I find that those most mobilized by the availability of vouchers belong to groups already overrepresented within the donor pool. This finding is significant across race, income, past political participation, age, and partisanship. In some cases, the availability of vouchers appears to pull the donor pool further from parity with the larger electorate.

 
https://www.cambridge.org/core/journals/american-political-science-review/article/campaign-finance-vouchers-do-not-expand-the-diversity-of-donors-evidence-from-seattle/BD8E21A4B646DE4EA56BF8787DF0FF81

Amidst all the music and films, Nate Persily and I will be speaking today at SXSW on the legal challenges facing the 2024 election. Looking forward to discussing all these issues with a different audience than usual:

https://schedule.sxsw.com/2024/events/PP1145698

This Washington Post story features Prof. Doug Spencer, an election law expert, in both his personal and professional identities:

Professor Douglas Spencer began his Thursday afternoon class at the University of Colorado Law School by reading a text message he had just received from his 13-year-old daughter.

Only a few hours earlier, the U.S. Supreme Court had heard oral arguments in the case that will decide whether Donald Trump is eligible to appear on the Colorado ballot in November. One of the critical legal questions is whether Section 3 of the 14th Amendment bars someone who previously took an oath to support the Constitution as “an officer of the United States” from returning to office if they engaged in insurrection.

The message from Spencer’s daughter asked whether he thought Trump had been an officer or a holder of office. Yes, he texted back. “That’s what I thought,” she replied. “I don’t understand law that much, but even I was like, bruh.”

His 70 students — five rows of them sitting shoulder to shoulder — burst out laughing. It was a rare moment of levity for a discussion of complexity and immense import.

Until this year, Spencer had never taught Section 3. But it is now a centerpiece of his election law syllabus as the high court weighs the case that will shape the race for president, either by allowing Trump to remain on state ballots or by derailing his candidacy months before the vote.

In a divided nation, the profound implications of the justices’ pending ruling have sparked debate and qualms among election scholars,legal experts, activists and students of all political shades. But nowhere may the tensions be deeper than in blue states and jurisdictions that have firmly rejected Trump in past votes but now wrestle with whether democracy is better served by punishing him for his efforts to overturn the 2020 election results or letting voters decide his fate this fall.

Synder, a well-known Yale political scientist, participated in an amicus brief in the case on behalf of academics who study democratic backsliding in other countries. A recent substack post of his illustrates the kind of reaction the Court can expect from some quarters if it holds that Sec. 3 does not include the President. I don’t expect the Court to decide the case on that basis, though I can imagine a separate concurrence on the issue.

From Synder’s substack:

His lawyers (and supporters) depend heavily on the claim that the president of the United States is not an officer of the United States (and therefore not subject to Section 3). 

An argument this bad depends upon fear.  Even in print, it has a wink-wink-nudge-nudge quality — we know this is a horrible legal argument, and you Justices know that this is a horrible legal argument, but we both know that you are just looking for a way out. So here’s your alibi for ignoring the Constitution.

The argument that the president of the United States is not an officer of the United States is risible.  People will laugh at it. A Supreme Court that rules for Trump on that ground will be ridiculed for as long as our republic lasts, and rightly so. …

Twenty-five historians who looked into the matter concluded that Section 3 was meant to apply to the president.  Four more historians in a separate brief drew exactly the same conclusion.  These are the leading scholars of the period and the issues.  The conservative legal scholars who began this discussion concluded that the president is an officer.  Antonin Scalia, a figure of some repute in conservative judicial circles, believed that the president was an officer.  In Trump’s own legal briefs in other matters he also defines the president as an officer.

I cannot say whether the Supreme Court will re-qualify Trump for office.  I can say, though, that requalifying him on the grounds that the president of the United States is not an officer of the United States is preposterous.  It defies the wording of Section 3, and the intentions of its framers, and the way it was understood by society at the time.  It defies the whole historical experience on which Section 3 was based. And it defies Section 3’s political logic of defending the rule of law. 

I was greatly honored this weekend to receive this award at the annual meeting of the American Law School Association, even if it partly means I have been at this work for a long time. 

It’s particularly meaningful to me because of the warmth and respect I felt for John Hart Ely.  My connection to John goes back to law school, when he taught me Conflicts of Law.  After John wrote Democracy and Distrust in 1980, he did not write again about those issues until the late 1990s.  I have always liked to think that the new energy those of us brought who entered the field back then played a role in drawing John back to these issues.  In the last years of his life, we were fortunate John participated in conferences on these issues.  He was also incisive, eccentric, and unfailingly intellectually honest.  It’s a great honor to receive this award rightly named for him.

As always, I’m particularly grateful to my longest-time collaborators, Pam Karlan and Sam Issacharoff, who helped make this work intellectually exciting, challenging, and fun. Part of what we drew me to this work at the outset also was the work of such terrific political scientists as Bruce Cain, Bernie Groffman, and Morgan Kousser, among others, and I want to acknowledge them as well.

The theme of this year’s annual meeting of the American Law Schools Association is Defending Democracy. I’ll be speaking tomorrow on this terrific panel:

Legislation, Governance, and Democratic Fragility (co-sponsored Legislation and the Political Process)

Moderator: Vicki C. Jackson, Harvard Law School

Panelists:  Richard H. Pildes, NYU Law School; Josh Chafetz, Georgetown University Law Center; Nicholas Stephanopolous, Harvard Law School; Tabatha Abu El-Haj, Drexel University Kline School of Law.

The perceived inability of legislatures, Congress most especially, to deliver legislative solutions to our most pressing problems is a significant strain on the public’s faith in democracy. This panel will explore the under-appreciated relationship between good governance and democratic stability as well as potential reforms at both the state and federal level that might improve governance, even in this era of polarization, and thereby support our democracy.

Time: Wednesday, January 3, 10:00 am – 11:40 am 

Hotel: Marriott Marquis Washington, DC

Room: Shaw

Floor: Level M3

From NYT:

Perhaps no federal officeholder in modern American history has been accused of ignoring, testing or breaking as many aspects of campaign finance law so flagrantly, in such a short span of time, as George Santos has.

But his case, while sensational, illustrates the profound weaknesses of the system, and its potential for abuse.

For years, campaign finance laws have eroded, while the watchdogs responsible for their oversight have been weakened by limited powers, underfunding and political stalemate. The system, which largely relies on campaigns and political committees to self-report thousands of donations, expenditures, loans and refunds, has been left wide open for anyone willing to mislead, experts said.

Mr. Santos might have slipped through unnoticed — and many candidates probably do.

“He is an extreme example of something that is happening all the time in campaign finance,” said Saurav Ghosh, a former Federal Election Commission enforcement lawyer who is now the director of federal campaign finance reform at the Campaign Legal Center, a watchdog group. Mr. Santos, he suggested, was able to take advantage of “the overall under-regulation of money that is raised and spent on election influence.”