A new Common Ground Democracy essay, drawing upon Rick Pildes’s work, to discuss why it’s wrong to rely solely on a hope for increased civic virtue, among either politicians or voters, to protect democracy from authoritarianism. Instead, institutional reforms of the kind that Rick advocates in his recent Dunwody lecture are necessary to restore a Madisonian equilibrium to America’s political system. As the essay explains, a Madisonian equilibrium exists when the system’s institutions are well-calibrated to the society’s political culture, including its degree of civic virtue. The problem in the United States today is that, although a Madisonian equilibrium of this nature exhibited for several decades after World War II (when partisan polarization was low and civic solidarity high), this equilibrium has been destabilized by various cultural forces including the rise of intense partisan polarization. To remedy this problem, we must endeavor both to reinvigorate civic virtue within our political culture and make institutional adjustments suitable for the amount of civic virtue–and, its enemy, partisan tribalism–prevalent in our present political culture. Rick’s lecture prioritizes the institutional reforms that have the greatest change of being most effective in the near term on this front.

Disturbing development as reported by CNN:

“Georgia’s Coffee County suffered a cyberattack this month that forced the county to sever its connection to the state’s voter registration system as a precautionary measure, three sources familiar with the matter told CNN.

“Investigators believe the incident was a ransomware attack, in which cybercriminals typically lock computer systems and demand a ransom, the sources said.

“The federal Cybersecurity and Infrastructure Security Agency (CISA) informed the county of the incident on April 15, and federal and county officials are trying to determine who carried out the hack, according to the sources.

“A spokesperson for the office of Georgia’s secretary of state confirmed the cyberattack and the county’s response.

“The voter registration system, known as GARViS, is a relatively new technology that state officials have touted as a way of ensuring millions of Georgian voters are registered accurately. There was no indication that GARViS was infiltrated by the hackers, and Coffee County’s network connection to GARViS was severed as a precautionary move, the sources said.”

The journal PS: Political Science and Politics has published a special issue on the topic of Democracy Backsliding. Papers include The Resilience of Democracy’s Third Wave by Stephen Levitsky and Lucan Way. Other papers concern how to measure democratic backsliding and what we know and don’t know about the topic. It looks like an important collection.

That’s the message of the majority leader in Maine’s House of Representatives. For more, Newsweek has a story. So do several Maine media outlets (available on Google News, although at least one is behind a paywall).

N.Y. Times. Adam quotes Pam Karlan, Mellisa Murray, and Michael Dorf, as well as excerpts from the oral argument. For example:

‘In the real world, Professor Karlan said, “it’s really hard to imagine a ‘stable democratic society,’ to use Justice Alito’s word, where someone who did what Donald Trump is alleged to have done leading up to Jan. 6 faces no criminal consequences for his acts.”

‘Indeed, she said, “if Donald Trump is a harbinger of presidents to come, and from now on presidents refuse to leave office and engage in efforts to undermine the democratic process, we’ve lost our democracy regardless what the Supreme Court decides.”’

The implication of the column is that the Justices were being irresponsible in “averting their eyes from Mr. Trump’s conduct.” My own take is that there is a more charitable interpretation of the Court’s questioning. The question of delineating the scope of potential presidential immunity from criminal prosecution is a serious one, even if in this particular case the rejection of an immunity claim should be straightforward (as I and others have argued). To be sure, it would be theoretically tenable for the Court to categorically reject any doctrine of presidential immunity from criminal prosecution (after the president leaves office) on the ground that, unlike the Speech and Debate Clause that confers a form of legislative immunity, there is no comparable clause in the Constitution conferring an equivalent immunity for the Executive Branch. That textualist argument seems to be part of Jason Willick’s view of how the case should be decided:

“A majority on the Supreme Court seems inclined to think some kind of immunity is necessary to nudge American democracy in the right direction. The best counter would have been that the fate of democracy belongs to the people and their elected representatives, who can destroy it if they are determined to — and that when the Constitution is silent, the Supreme Court should stay out of the way.”

But as Willick himself recognizes, a majority of the Court seems unwilling to reject the idea of presidential immunity completely. Even Michael Dreeben’s self-described “more nuanced” analysis would rule off-limits criminal prosecution of a former president in certain circumstances–and, crucially, provide for interlocutory appeal before trial to litigate the immunity issue (whether or not the word “immunity” is used to describe the doctrine).

Thus, back to Liptak’s concern that the Court “seems likely to say that at least some of Mr. Trump’s conduct was part of his official duties and so subject to some form of immunity.” But the second part of that sentence doesn’t necessarily follow from the first. As I suggested last night, the fact that some of Trump’s allegedly criminal conduct was official and not private in nature does not mean that it must be granted immunity; instead, even under a properly calibrated immunity doctrine, that conduct can–and-should–be deemed to be so objectively unreasonable to lack the benefit of any immunity doctrine the Court might adopt.

Liptak, among many others, fears that the application of the Court’s newly-minted immunity doctrine would entail a remand that prevents a trial occurring before the election. But, again, that’s not necessarily the case if (as the Washington Post and I argue) the Court is willing to declare, as it should, that as a matter of law the allegations in the indictment, even to the extent that they involve official conduct, fall outside the scope of the immunity that is available to presidents who act reasonably.

N.Y. Times analysis of the various state-level prosecutions, discussing the extent to which they will deter similar efforts this year:

“Republican leaders, however, have been defiant in the face of the prosecutions. “We will not be deterred by this overreach,” the Arizona G.O.P. said in a statement Wednesday after a grand jury had handed up the charges, echoing the stances of leaders in other states.

“Josh McKoon, chairman of the Georgia Republican Party, said in an interview that “I don’t think that this is going to discourage the base of the Republican Party from engaging in politics,” adding, “I think what it actually does is it heightens, to an entirely new level, the importance of winning the 2024 election.”

“But a number of those who have been indicted are lawyers, which may give pause to lawyers advising the current Trump campaign.

““There will be more caution on the part of the lawyers,” said Manny Arora, who represents Kenneth Chesebro, another legal architect of the fake elector plot. Mr. Chesebro, who pleaded guilty to a felony in Georgia, has emerged as a key witness in all of the state inquiries, including one in Wisconsin, which has not yet led to charges.”

I spoke about these cases with Scott Detrow on NPR’s All Things Considered yesterday.

The Washington Post editorial following yesterday’s argument takes essentially the same position as I advocated in my comment last night. First, the Court could adopt a “reasonableness” test to determine whether or not a president’s official acts are immune from criminal prosecution: “Judges could examine whether the president reasonably should have known a given action was illegal — because of contrary advice from his attorney general, for example, or because it’s just that obvious.” Second, the Court itself could apply that reasonableness test to the allegations in the indictment, without need for additional proceedings, to conclude that objectively no reasonable president would have done what Trump allegedly did: “The Supreme Court … could simply find that actions described in Mr. Trump’s indictment lie outside any plausible scope of presidential immunity.”

Let’s hope that at least five Justices have the wisdom to see the case this way.

Amy Gardner and Yvonne Wingett Sanchez in the Washington Post:

“When conservative lawyer and media personality Christina Bobb became the latest member of Donald Trump’s inner circle to be charged for her alleged role in the effort to reverse the 2020 presidential election results, it became immediately clear she would not have to give up her day job: senior counsel to the Republican National Committee’s election integrity team.

“For some, there is a certain irony — if not outright conflict — that a leading purveyor of false claims that the 2020 election was riddled with fraud is a major player in the national GOP’s efforts to protect the integrity of the 2024 vote.

“But not for Bobb, and not for her closest allies — including Trump himself, who through a spokesman defended only Bobb by name among all the 18 individuals indicted Wednesday in Arizona. If anything, Bobb’s indictment solidifies her identity as a dedicated Trump loyalist who fiercely fought to reverse his loss in the politically competitive state and potentially elevates her role within the RNC to help him win in November.”

The article then details the role that Bobb played in the Arizona “fake electors” scheme, based on the allegations in the indictment and evidence from the House January 6 Committee.

The article then continues to discuss the potential role that Bobb might play in this fall’s election:

“Some who have left said they fear that the party’s new election-integrity operation, particularly with Bobb in its midst, will veer toward embracing unfounded conspiracy theories that alienate more moderate Republicans.

““That was a bad hire,” Robin Vos, the Republican speaker of the Wisconsin Assembly, said in a televised interview about Bobb’s new job. “Christina Bobb is part of the fringe element that I don’t think helps to build credibility, not only in our party but in the entire country.”

“Stephen K. Bannon, the former senior Trump adviser, said in an interview Thursday that he recommended to the Trump team that people like Bobb and others who have strong connections to the election integrity movement be hired into the RNC because “we need that kind of will to fight — someone who is going to contest elections everywhere.”

“With direct access to Trump by phone, Bobb can also serve as a direct link between the RNC and the former president, taking his input and sharing internal strategy with him, Bannon said. But that can cut two ways if Bobb pushes the party’s election integrity operation toward activity that draws legal scrutiny, several GOP operatives said, speaking candidly on condition of anonymity.

“Until 2018, the RNC operated under a federal consent decree prohibiting the committee from participating in election-day operations — the result of a 1982lawsuit from Democrats charging the committee with trying to discourage Black voters from casting ballots through targeted mailings and positioning armed, off-duty officers at polls in minority neighborhoods.

““What we worry about is Christina Bobb going rogue and doing something dumb and us getting thrown back into the consent decree,” one GOP strategist said.

“If volunteers or campaign operatives misstep, “Marc Elias and his well-funded allies are going to try to get the consent decree reinstated, and that’s something we’re all concerned about,” said another GOP operative, referring to the Democratic elections lawyer.”

There’s more in the piece. The whole article is very much worth a read.

A powerful argument by Aziz Rana for a view that seems largely, although not entirely, persuasive to me. I share the basic premise that it’s wrong and dangerous to overly laud the Founders, a point I made when commenting on Robert Kagan’s recent essay. But, as I also remarked, there’s much to Madisonian constitutional theory that we should retain, even as we endeavor to fix the serious flaws in the instrument that Madison and his fellow Framers drafted.

Moreover, some of the specific reforms that Rana advocates, like “multi-member House districts,” I wouldn’t endorse. (There are better ways to achieve some degree of proportional representation in the House, if that is the goal–which itself is debatable.) Also, for pragmatic reasons, I think it is imperative in the short-term to focus on reforms that are achievable without constitutional amendments. The danger to democracy that Trump–and, more significantly, the broader authoritarian movement that Trump leads, as both Kagan and Rana describe–requires prioritizing feasible and effective reforms that can be adopted relatively quickly. That’s why Rick Pildes’s Dunwody Lecture is so important. The lesson to be learned from the unfortunate failure to achieve necessary structural reforms in 2021 and 2022, during the immediate aftermath of the January 6 insurrection, because all the democracy-related focus was on voting rights protection that wouldn’t affect the electoral structures that translate votes into results, should remind us that there is only so much “bandwidth” for the electoral reform agenda. I agree with Rick, as he said in his Dunwody Lecture, that the number one priority to counteract the danger to democracy from political extremism is to replace partisan primaries with the kind of nonpartisan primary in Alaska’s top-4 system. That reform, fortunately, doesn’t require a constitutional amendment, but can and should be achieved on a state-by-state basis as rapidly as possible.

Watch here for a discussion among Richard Bernstein, George Conway, and Peter Keisler. (For more information on the Society for the Rule of Law, formerly called Checks and Balances, here’s its website.)

Having listened to the oral argument this morning, I find myself contemplating two basic points. First, there is the paramount distinction between official acts and private acts, with the significant concessions that much of what Trump did in his effort to subvert the 2020 election were private acts and thus outside any possible scope of presidential immunity. Significantly, there was much discussion at the oral argument of the distinction between Trump-as-candidate (private) versus Trump-as-president (official), with the understanding that anything that Trump did as candidate would not get the benefit of any presidential immunity. To be sure, Trump’s attorney (John Sauer) attempted to argue that some actions that Trump took qualified as official–like his call to Georgia Secretary of State Raffensperger, where he asked Raffensperger to “find” him just enough votes to win the state–but it seemed pretty clear, as Michael Dreeben argued for the prosecution (at page 131), that such conduct would qualify as “acting in the capacity as office-seeker, not as President.”

Still, I’m currently more interested in a second important issue that emerged at the oral argument: with respect to those actions which are concededly official and not private, what if any immunity might Trump have in the context of this case? Trump’s attorney, Sauer, continued to press his untenable argument for an absolute presidential immunity, but equally untenable was the D.C. Circuit’s holding that presidents enjoy no immunity whatsoever. So what is the tenable middle ground? Dreeben, persuasively to my mind, argued in favor of a test that would permit prosecution of presidential official actions when undertaken in furtherance of a corrupt private motive. As he put it (at page 126), “for an incumbent president to … use his presidential powers to try to enhance the likelihood that [his plot to subvert the election] succeeds makes the crime in our view worse.”

Justice Alito proposed a test (at page 21) that “a former president cannot be prosecuted for official acts unless no plausible justification could be imagined for what the president did, taking into account history and legal precedent and the information that was provided to the president at the time when the act was taken.” That test might be somewhat more pro-immunity than warranted. For example, I can imagine reformulating it to provide that no president can be prosecuted for official acts unless no reasonable president could believe that the actions were lawful and warranted. But even under Justice Alito’s formulation, I’m not sure that any of Trump’s alleged criminal conduct would be immune from prosecution. Given what Trump was told about the results of the 2020 election by Attorney General Bill Barr, his campaign advisers, and others, there was “no plausible justification” (in Justice Alito’s words) for Trump attempting to undo the result of the election as he did.

What happens to the case now? This question was on the minds of several Justices, as well as many others. It seems to me that one possibility, if Justice Alito’s test or something like it is adopted, is for the Court itself to apply the test to the allegations in the indictment. Trump, after all, is seeking immunity for prosecution of the charges as alleged. But if the allegations set forth presidential behavior that, as Justice Alito put it, can’t plausibly be justified, then the indictment cannot be quashed solely on the basis of the pleadings and, instead, the case must proceed to trial forthwith.

I hope enough Justices can coalesce around the proposition that whatever the scope of presidential immunity may be for a president who appropriately deserves it, Trump’s conduct in an effort to cling to power despite being voted out of office is not within the scope of that immunity–whether his conduct was official or private in nature–and that the only task on remand is to proceed with case expeditiously now that the immunity claim has been rejected.

Note: Trump’s lawyer, Sauer, attempted to justify Trump’s conduct by reference to the role that President Grant played in the disputed Hayes-Tilden election of 1876. But Grant’s conduct, whatever one thinks of it, was entirely different from Trump’s. Grant was not running for reelection, but instead attempting to keep Reconstruction intact until the outcome of the election could be settled pursuant to the rule of law. I discuss Grant’s role in chapter 5 of Ballot Battles: The History of Disputed Elections in the United States, and provide multiple citations on Grant’s role in note 41 to that chapter. One of the cited sources is Brooks D. Simpson, Ulysses S. Grant and the Electoral Crisis of 1876-77, HAYES HISTORICAL JOURNAL, vol. 11, no.2 (Winter 1992). It is a distortion of that historical record to argue that it supports Trump’s claim of immunity in the present case.

Miriam Seifter and Adam  Sopko have posted this essay to SSRN, which will be published as part of a symposium held by the Illinois Law Review. As a participant in this symposium, I had the opportunity to see an earlier version of this important work. Here’s the abstract:

Election-related litigation is soaring. Litigants regularly challenge every aspect of an election cycle, from who can vote to how votes are cast and counted to the certification of results. Courts have thrown out many of these lawsuits on standing grounds. Given the requirements of traditional federal standing doctrine—including the requirement of individualized injury rather than generalized grievances—these dismissals are at least plausible in federal court.

But most election-related lawsuits today are filed in state court, where standing doctrine is and should be different. State courts are not bound by Article III of the U.S. Constitution, have constitutional commitments to democracy and open courts, and typically have more flexible justiciability doctrines. This Essay urges state courts to build on that foundation through a presumptively permissive approach to election standing. State courts fulfill their judicial role by redressing rather than avoiding threats to state-level democracy. And deciding election-related lawsuits on the merits serves important functions of stability, certainty, and finality, as well as confidence in election outcomes. 

To be sure, the surge in election-related litigation is suboptimal, and some share of the lawsuits are meritless or brought in bad faith. Our argument is simply that standing doctrine is not the best tool for rejecting these lawsuits. The Essay describes other techniques that courts can use to deal with abusive or burdensome litigation without undermining the openness that is foundational to state judicial systems. 

Milwaukee Journal-Sentinel:

“Souls to the Polls on Thursday called for the removal of the Republican Party of Wisconsin’s new executive director over Election Day 2020 text messages in which he asked about getting supporters of then-President Donald Trump to flood the Milwaukee voting rights group with requests to be taken to the polls.

“The group’s call came after the Journal Sentinel reported on the text messages from new GOP executive director Andrew Iverson when he was Wisconsin head of Trump Victory, a joint operation of the Trump campaign and the Republican National Committee in 2020. …

“In a statement, Iverson said this week that the text messages were jokes and weren’t supposed to be taken seriously.

“Huffman [who was the recipient of the texts], however, told the Journal Sentinel he did not take it as a joke and contended Iverson was clearly trying to overwhelm and discourage Souls to the Polls by forcing the group to spend valuable resources taking Trump supporters to various Milwaukee polling locations, where they may or may not have voted.”

Advocates of Australian-style mandatory voting would say that this kind of situation wouldn’t happen if the U.S. had an electoral system in which every adult citizen was obligated to vote and procedures were in place to facilitate the exercise of that obligation. The idea of trying to overwhelm a voter turnout operation so that it cannot function as intended seems rationally malicious (i.e., Machiavellian) only if there is no expectation that every citizen will vote and resources are limited to encourage citizens to do so.

Sam Levine in the Guardian on the latest development in the Crystal Mason case:

“A Texas prosecutor will appeal against a court ruling tossing out a five-year prison sentence for a woman who unintentionally tried to vote while ineligible in the 2016 election, an unexpected move that continues one of the most closely watched voting prosecutions in the US.

“Last month, the second court of appeals, which is based in Fort Worth, threw out the 2018 conviction of Crystal Mason, a Black woman who submitted a provisional ballot in 2016 that ultimately went uncounted. Mason was on supervised release for a federal felony at the time she voted and has said she had no idea she was ineligible. The panel said prosecutors had failed to prove Mason actually knew she was ineligible.”