This Washington Post story is full of examples of how extreme rhetoric turns on the spigot of small donations. This isn’t surprising; as I’ve noted, in the days of direct mail, consultants also understood that extreme rhetoric was a key to unlocking donations (Richard Vigurie, the architect of direct mail fundraising, told Jimmy Carter it would never work for him because he was too moderate).

The incendiary emails are part of a concerted strategy that has allowed the campaign to erase a financial lead that President Biden’s campaign had opened up in recent months, according to people close to the former president who spoke on the condition of anonymity because they weren’t authorized to speak for the campaign. But experts in small-dollar fundraising say the solicitations are aggressive even by the standards of Trump’s frequently hyperbolic and inflammatory language.

“I think those are clearly an escalation over and above some incredibly heated rhetoric and some irresponsible rhetoric we’ve seen over time,” said Matthew Hindman, a professor at George Washington University who studies digital emails. “The fact that those messages continue to be sent out tell us about something. The rhetoric has been driven by user response and user donations. If this extreme rhetoric continues to generate funds, it’s going to be rewarded with an even more extreme response next time.”…

Aides are planning an aggressive push around the sentencing, advisers said, betting his supporters will be especially motivated by a potential prison sentence….

One person with knowledge of the pitches said donations increase any time Trump seems to be under attack or argues that he is being treated unfairly. That’s particularly true when he is generating wall-to-wall news coverage during an event like the hush money trial in New York.

Some recent pitches have raised eyebrows even among longtime Trump observers and advisers. Emails falsely claimed that the FBI wanted to shoot Trump during a court-authorized search of his Mar-a-Lago Club in Florida for classified documents he allegedly unlawfully retained after leaving office. “Put Biden on Trial,” one read…

“Rhetorical gimmicks like this poison the well for every other Republican trying to raise money online,” one GOP consultant said, speaking on the condition of anonymity for fear of reprisal. “It burns out small-dollar donors. The Trump campaign is printing money on this, but when you’re already talking about the death penalty in June, what are you going to say in October?”

Hindman said the campaign is unlikely to dial back its rhetoric as long as the money was flowing.

Interesting pre-print on these issues:

The Ties that Blind: Misperceptions of the Opponent Fringe and the Miscalibration of Political Contempt

Victoria A. Parker, Matthew Feinberg, Alexa Tullett, & Anne E. Wilson

Abstract

Americans’ hostility toward political opponents has intensified to a degree not fully explained by actual ideological polarization. We propose that political animosity may be based particularly on partisans’ overestimation of the prevalence of extreme, egregious views held by only a minority of opponents but imagined to be widespread. Across five studies (N= 4993; three preregistered), we examine issue extremity as an antecedent of false polarization. Both liberals and conservatives report high agreement with their party’s moderate issues but low agreement with the extreme issues associated with their side. As expected, false polarization did not occur for all issues. Partisans were fairly accurate in estimating opponents’ moderate issues (even underestimating agreement somewhat). In contrast, partisans consistently overestimated the prevalence of their opponents’ extreme, egregious political attitudes. (Over)estimation of political opponents’ agreement with extreme issues predicted cross-partisan dislike, which in turn predicted unwillingness to engage with opponents, foreclosing opportunities to correct misperceptions (Studies 2-4b). Participants explicitly attributed their dislike of political opponents to opponents’ views on extreme issues more than moderate issues (Study 3). Partisans also reported greater unwillingness to publicly voice their views on their side’s extreme (relative to moderate) issues, a self-silencing which may perpetuate misconceptions (Studies 1, 2, 4a&b). Time spent watching partisan media (controlling political orientation) predicted greater overestimations of the prevalence of extreme views (Studies 2, 4a&b). Salience of opponents’ malevolence mattered: first reflecting on opponents’ (presumed nefarious) election tactics made partisans on both sides subsequently more accepting of unfair tactics from their own side.

Putting to the side the merits of the Court’s decision itself, I think the stakes going forward are lower than might be realized. After the 2010 round of redistricting, racial gerrymandering cases became important during a transitional phase of redistricting law.

At the time, legislatures were concerned that partisan gerrymanders might be unconstitutional. So southern legislatures, in particular, tried to hide partisan gerrymandering behind claims that the Voting Rights Act required them to do what they did. They invoked race rather than saying they were engaged in partisan gerrymandering. The racial gerrymandering doctrine then become highly relevant to block this move. That led the Court to strike down racial gerrymanders from Alabama (disclosure: a case I argued), North Carolina, and Virginia in the 2010 round of redistricting.

But once the Supreme Court decided Common Cause v. Rucho in 2019 (disclosure again, I represented Common Cause), the 2020 round of redistricting worked differently. Legislatures now were free to proclaim loudly and baldly that they were engaged in partisan gerrymandering. Unless they get bad legal advice or screw up (which might have been the case in SC), they no longer need to use race as a proxy or a means to pursue or to defend partisan gerrymanders. They can simply use voting patterns directly to create districts projected to perform as they would like in partisan terms.

Thus, even before today’s SC decision, the 2020 round has generated fewer significant cases in which minority voting-rights plaintiffs are challenging plans as racial gerrymanders (I should note, this is distinct from vote dilution claims under VRA Sec. 2 or the constitution, for which the Court’s Allen v. Milligan decision has indeed been significant).

The SC decision will, to be sure, make it harder to win racial gerrymandering claims. But for these other reasons, I think it was already the case that the racial gerrymandering doctrine at issue in Alexander was playing and would play less of a role on behalf of voting-rights plaintiffs this decade than it did during the transitional decade from 2010-2020.

Indeed, the major way the doctrine is likely to play a role this decade is against minority voting-rights plaintiffs. It’s going to be deployed to attack districts drawn to comply with the VRA. That’s exactly what’s going on in the pending LA case, in which the legislature created a VRA district to remedy a VRA violation, but which the federal court then struck down as an unconstitutional racial gerrymander. Currently, the Supreme Court has a stay in place in that litigation.

I expect the Court to agree to hear the LA case.

Update: Back in October, I posted am explanation here at ELB on why SC might indeed have turned to using race (unconstitutionally) as a proxy for political voting preferences, rather than relying directly on purely political data on voting patterns.

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.