In the NYT essay I wrote with Trevor Morrison on the tools courts have to deal with executive defiance of court orders, we concluded by noting that a major confrontation between the two branches might have significant effects on financial markets. These markets could provide a form of checks and balances in a world in which strong partisan attachments make Congress less likely to perform the role the Constitution’s designers imagined it would play.

The Financial Times quotes an analysis of this issue from Evercore ISI (no link to that report). Here’s the FT lead-in, then an excerpt from Evercore’s analysis:

Evercore’s broad conclusion is that the underlying case will affect whether and how much markets immediately react to the chaos, but that the real long-term danger is an insidious “erosion of market perceptions of US stability and safety”:

For example, if Trump defies courts in using the Alien Enemies Act of 1798 to deport suspected gang members without full due process protections, markets may not react. The issue at play is not fundamentally economic in nature, and while stripping of due process protections will certainly cause concerns, the Administration’s actions here will have been done on a relatively small scale and — the Administration would argue — only in response to the unprecedented circumstances of millions of excess immigration inflows relative to trend.

In contrast, if Trump defies a court order on a fundamentally economic or commercial issue — refusing a court order to pay a government contractor for work already completed, for instance markets might care more.

Even as certain norms around democracy and the rule of law have faced challenges in recent years, the U.S. judicial system has continued to function as an effective and independent mediator of economic and commercial disputes, providing an essential backbone to our free market system. Open defiance of a court order around payments or contracts would suggest that the U.S. government is no longer subject to the economic rule of law.

This is the first time I can remember seeing a split in this kind of litigation over baseless suits challenging the integrity of election systems.

Direct all your tips and questions to Derek.

New report from CDT. From the Introduction:

AI avatars delivered independent news about Venezuela’s contested election, allowing journalists to protect their identity and avoid politically motivated arrest. Voters in the United Kingdom could cast their ballots for an AI avatar to hold a seat in Parliament. A deepfake video showed United States President Joe Biden threatening to impose sanctions on South Africa if the incumbent African National Congress won.

These are a few of the hundreds of ways generative AI was used during elections in 2024, a year that was touted as “the year of elections” and described as the moment in which newly widespread AI tools could do lasting damage to human rights and democracy worldwide. Though technology and security experts have described deepfakes as a threat to elections since at least the mid to late 2010s, the concentrated attention in 2024 was a reaction to the AI boom in the preceding year. In September 2023, a leading parliamentary candidate in Slovakia lost after a fake audio smearing him was released two days before the election, prompting speculation that the deepfake had changed the election results. At the beginning of the year, OpenAI’s ChatGPT set a record as the “fastest-growing consumer application in history.” 

Though 2024 ended with debates over the extent to which the risks AI posed to elections were overstated, in one way the consequences were clear: the technology changed the way stakeholders around the world did their work. Governments from Brazil to the Philippines passed new laws and regulations to govern the use of generative AI in elections. The European Commission published guidelines for how large companies should protect the information environment ahead of the June 2024 elections, including by labeling AI-generated content. US election administrators adopted new communication tactics that were tailored to an AI-infused information environment.

Political campaigns and candidates adopted AI tools to create advertisements and help with voter outreach. Candidates in Indonesia paid for a service that used ChatGPT to write speeches and develop campaign strategies. In India, candidates used deepfake audio and video of themselves to enable more personalized outreach to voters. Germany’s far right AfD party ran anti-immigrant ads on Meta platforms, some of which incorporated AI-altered images.

Social media platforms and AI developers implemented some election integrity programs, despite recent cuts to trust and safety teams. Twenty-seven technology companies signed the AI Elections Accord, a one-year commitment to addressing “deceptive AI election content” through improved detection, provenance, and other efforts. Google restricted the Gemini chatbot’s responses to election-related queries, and OpenAI announced that ChatGPT would redirect users to external sources when users asked about voting ahead of certain elections. Google and Jigsaw worked with media, civil society, and government partners on public media literacy ahead of the European Union elections, including about generative AI. 

In anticipation of AI tools accelerating or increasing threats to the information environment, civic space actors changed their work, too. This report looks at their contributions to a resilient information environment during the 2024 electoral periods through three case studies: (I) fact-checking collectives in Mexico, (II) decentralization and coordination among civil society in Taiwan, and (III) AI incident tracking projects by media, academics, and civil society organizations. 

The case studies highlight a range of approaches to building resilient information environments. They show the ways artificial intelligence complicates that work, as well as how it can be used to support resilience building efforts. The mix of approaches — from fact-checking bots on WhatsApp to cataloging hundreds of deepfakes — tap into information resilience from different angles.

Continue reading “Adaptation and Innovation: The Civic Space Response to AI-Infused Elections” →

This Harvard Law Review recently published this case comment on the Fifth Circuit’s en banc decision in Petteway v. Galveston County, which held that Section 2 of the VRA doesn’t authorize claims by coalitions of minority voters.

The Fifth Circuit’s erroneously narrow reading of Section 2 contravenes the statute’s broad language and expansive remedial intent. This error will diminish the protection that the Act was intended to provide in the context of our heterogeneous and diversifying electorate. . . .

 The Supreme Court has considered and rejected the structure of the majority’s argument — that is, if coalition claims were permissible, Congress would have expressly written them into the law — as an illegitimate interpretative strategy for analyzing the VRA.⁸⁰ By demanding express authorization of coalition districts, the Fifth Circuit disregarded the capacious legislative purpose undergirding the VRA⁸¹ and ignored the “super-strong presumption” of statutory stare decisis,⁸² which would have compelled an alternative result. . . .

The Fifth Circuit’s rejection of coalition claims risks undermining cross-racial solidarity and rewarding residential segregation. The United States is becoming more diverse and less residentially segregated for certain minority groups — two positive developments.⁸⁸ But the Fifth Circuit’s ruling risks making residential heterogeneity an impediment to Section 2 relief.⁸⁹ As a community diversifies, it becomes less likely that households of any single race will be sufficiently concentrated to meet the Gingles compactness threshold that plaintiffs must satisfy to bring a Section 2 claim,⁹⁰ despite high levels of racially polarized voting in many jurisdictions.⁹¹ Minorities seeking representation will be disincentivized from building ties with residents of different racial communities.⁹² Such a development could perversely incentivize a zero-sum approach to addressing racial voting discrimination and discourage cross-racial coalition-building.⁹³

New paper in Science Advances from Shiro Kuriwaki, Jeff Lewis,, and Michael Morse. Abstract:

After an election, should election officials release a copy of each anonymous ballot? Some policy-makers have championed public disclosure to counter distrust, but others worry that it might undermine ballot secrecy. We introduce the term vote revelation to refer to the linkage of a vote on an anonymous ballot to the voter’s name in the public voter file and detail how such revelation could theoretically occur. Using the 2020 election in Maricopa County, Arizona, as a case study, we show that the release of individual ballot records would lead to no revelation of any vote choice for 99.83% of voters as compared to 99.95% under Maricopa’s current practice of reporting aggregate results by precinct and method of voting. Further, revelation is overwhelmingly concentrated among the few voters who cast provisional ballots or federal-only ballots. We discuss the potential benefits of transparency, compare remedies to reduce or eliminate privacy violations, and highlight the privacy-transparency trade-off inherent in all election reporting.

The Guardian:

A new report warns of “profound risks” in American politics as cryptocurrency companies increase their political spending and Donald Trump oversees regulatory retreat
while promising to create a “crypto strategic reserve”.

The situation “illustrate[s] the profound risks that unchecked corporate political spending presents, particularly within the volatile and often unpredictable cryptocurrency industry”, reads the report, from the Center for Political Accountability (CPA), a non-profit that
advocates for corporate political disclosure.

“The aggressive push for deregulation, combined with opaque and unaccountable political contributions, has not only raised red flags among regulators but also eroded investor confidence and public trust in the long-term viability of these companies.”…

Daniel Nichanian for Bolts.

Next week, I’ll be delivering the 45th Sullivan Lecture at the Ohio Statehouse. Here are the details to register. I’m grateful to Jonathan Adler and Eugene Mazo, who will provide comments on the lecture, as well as to my host, Capital University.

I’ve posted this new essay, co-authored with Sam Issacharoff, at SSRN. The essay is forthcoming in 26 Theoretical Inquires in Law __ (2025). Here’s the abstract:

The declining ability of the state to deliver effective outcomes on the major issues of the day is among the greatest challenges democracies currently face. In this essay, we address two features of contemporary structures of democracy that contribute to this problem. One is excessive participatory requirements that have arisen based on the belief that government functioning must be more directly accountable to interested stakeholders. Process necessarily imposes its own costs and reformers too often think the problem with the functioning of government is always to expand participation even further. In the U.S., the way the practices of agency notice and comment have developed, as well as those of judicial review and other forms of accountability, now contribute to a long wind-up process for government action, too often followed by cost overruns, delay and, too frequently, abandonment of the project. This is the process that Francis Fukuyama aptly dubs the rise of “vetocracy.” 

A second means through which state capacity has declined reflects the weakening of the political parties. Absent strong parties to channel choice and enforce trade-offs between different constituencies, each proposed piece of legislation has to organize its own constituency out of disparate interest groups. The result is a decrease in legislation overall and a tendency for legislatures, even when in the hands of one party, to engage in largely symbolic legislation intended to signal virtue generally, even at the expense of accomplishing very much. These two features of contemporary practice contribute to the weakening of state capacity and the current dissatisfaction with democratic governments.

Just in time for March Madness: here’s a Common Ground Democracy essay describing a new form of voting that resembles the much-beloved NCAA men’s and women’s tournaments. This essay is based on my contribution to the symposium that the Ohio State Law Journal recently held on Nick Stephanopoulos’s book Aligning Election Law. Bracket Voting is a “Condorcet-consistent” electoral method. Its two main virtues are (1) unlike other Condorcet-consistent systems, it doesn’t require any additional rules for an election that has no Condorcet Winner; instead, whoever wins the election according to the Bracket Voting procedure wins the election (but a Condorcet Winner, when there is one, will always prevail given the structure of Bracket Voting); and (2) the similarity of its format to familiar sports tournaments will make it easy for voters to understand and viewed as an inherently fair form of electoral competition.

The latest in the mini-series of podcasts relating to Ohio State Law Journal‘s symposium on Nick Stephanopoulos’s Aligning Election Law features Joshua Sellers. It’s a really great discussion. Available on YouTube and Apple Podcasts.

At Good Authority, the political scientist John Sides has a good summary of the findings in this important new study that’s received a lot of attention. The study, by Stanford’s Chenoa Yorgason, has the title above. Here is from Sides’ summary:

There is indeed evidence that small donors are not moderates. They tend to give more to ideologically extreme candidates. But maybe small donors are simply supporting candidates whose views they already share. The question is whether small donors are truly changing how politicians behave.

According to new research by Stanford’s Chenoa Yorgason, the answer is yes. Yorgason focuses on the adoption of ActBlue, the most prominent online fundraising platform for Democratic candidates and liberal groups.

ActBlue simplifies giving. You don’t have to repeatedly enter your personal information or credit card details. You can even schedule recurring contributions. In essence, you can donate with a single click. ActBlue takes a percentage of each contribution, but there’s no upfront fee or contract for candidates. Yorgason shows that from 2006 to 2020 more and more Democratic candidates adopted ActBlue. By 2020, the vast majority of Democratic candidates for U.S. House and Senate were using it. 

There is indeed evidence that small donors are not moderates. They tend to give more to ideologically extreme candidates. But maybe small donors are simply supporting candidates whose views they already share. The question is whether small donors are truly changing how politicians behave.

According to new research by Stanford’s Chenoa Yorgason, the answer is yes. Yorgason focuses on the adoption of ActBlue, the most prominent online fundraising platform for Democratic candidates and liberal groups.

ActBlue simplifies giving. You don’t have to repeatedly enter your personal information or credit card details. You can even schedule recurring contributions. In essence, you can donate with a single click. ActBlue takes a percentage of each contribution, but there’s no upfront fee or contract for candidates. Yorgason shows that from 2006 to 2020 more and more Democratic candidates adopted ActBlue. By 2020, the vast majority of Democratic candidates for U.S. House and Senate were using it.