Nick Corasaniti in The NY Times on the retention elections for three seats held by Democrats on the Pennsylvania Supreme Court: “What’s at stake is nothing less than control of the highest court in the most important swing state in the country.”

I would point out that previous rulings of the Pennsylvania Supreme Court, including in 2020, raised suspicions on judicial overreaching among SCOTUS members and potentially provoked invocation of the Independent State Legislature Doctrine, which eventually led to Moore v. Harper. If the Pennsylvania Supreme Court were to stray too far in its interpretation of relevant state laws, including the state’s constitution, in 2028, I wouldn’t be surprised to see a majority of SCOTUS intervening based upon the standard it announced in Moore v. Harper.

It’s not exactly election law news, narrowly defined, but it seems significant enough to worth noting: Trump has filed a Florida state-law defamation complaint against the New York Times, several of its star reporters, and also Penguin Random House and the authors of the book Lucky Loser: How Donald Trump Squandered His Father’s Fortune and Created the Illusion of Success. The suit seeks $15 billion–yes, that’s billions with a b–in damages. There’s plenty of news coverage of it this morning; it leads the POLITICO Playbook newsletter, where I first saw it.

I know that Trump secured a settlement with Paramount (CBS), and maybe that’s his strategy here. It is perhaps ironic to recall that the landmark defamation case New York Times v. Sullivan involved a lawsuit in a state court by a public official against the same newspaper. Justices Thomas and Gorsuch have called for reconsidering that First Amendment precedent. We will see what if anything develops on that front, especially in the wake of calls (including by AG Pam Bondi) to suppress hate speech in the wake of Charlie Kirk’s horrific assassination. (Bondi’s remarks provoked this commentary on the National Review.) I don’t want to be a First Amendment alarmist–and as anyone who’s taught a First Amendment course knows (it’s been quite a few years for me), there are significant line-drawing issues in many areas of First Amendment law–but it’s obviously essential for any health democracy that politicians in power cannot suppress dissent because they don’t like criticism of their conduct or character. (I learned First Amendment law from the great Vince Blasi, who emphasized this key point, including in his article The Checking Value in First Amendment Theory. Another one of his articles, The Pathological Perspective and the First Amendment, which I had the privilege to cite-check as a junior law review staff member, also seems relevant at this moment.)

I’m looking forward to listening to this Odd Years podcast, given David Wasserman’s unsurpassed expertise on congressional redistricting.

ABC4 [Salt Lake City] reports, stating that the state supreme court’s order “means that unless another stay is granted, presumably by the U.S. Supreme Court, the Utah Legislature will need to draw new congressional maps by September 25.” I’m unaware, however, of any federal issues in the case that would give SCOTUS jurisdiction to issue a stay. I have not been following this case closely, but the Utah Supreme Court’s opinion accompanying its ruling (which is contained in the news report) seems to focus exclusively on issues of state law.

UPDATE: as one astute reader noted, there is at least the theoretical possibility of raising a federal question by claiming that the state judiciary contravened the prerogative of the state legislature to make the rules for congressional elections pursuant to the relatively modest version of the Independent State Legislature Doctrine articulated in Moore v. Harper. But it’s not clear to me what would be the specific argument that the state judiciary went too far in interpreting the state’s constitution. Of course, it is also possible that the current U.S. Supreme Court would overturn the decision in Arizona Independent Redistricting Commission, which permits citizens initiatives to constrain gerrymandering of a state’s congressional districts. But I don’t know whether a challenge to that precedent under the doctrine of stare decisis has been properly presented in that case, or if SCOTUS would have the appetite to entertain it.

The Guardian reports. I doubt that defying court orders is the best way to combat election denialism. The story discusses Democrats in Georgia who were found in contempt of court for refusing to appoint Republican election commissioners on the ground that they were “election denialists.” One of the Democrats defended their position by saying “we have no choice but to resist.” I would say, to the contrary, that the rule of law needs to be followed, which includes obeying court decrees and appealing them if necessary. I’m no fan of election denialism, as anyone who’s read my work knows, but ultimately the capacity of our democracy to sustain itself depends on handling election administration matters according to what the law requires, rather than what one personally believes is required in the particular situation.

I will be at the O’Connell conference. Details here.

I’ve posted this new article on SSRN. Here’s the abstract:

This essay, a contribution to the Ohio State Law Journal symposium on the important new book Aligning Election Law by Nicholas Stephanopoulos, addresses the value of the alignment principle for evaluating alternative electoral systems.  It discusses the challenge that social choice theory—in particular, Arrow’s Impossibility Theorem—poses for the alignment principle as the guiding metric for judging electoral systems. It offers an alternative way to decide what electoral system a democracy should adopt, a way that accepts the path-dependency of electoral processes and is rooted in the idea that a constitution can choose an appropriately path-dependent electoral procedure based on constitutional values. The essay uses a distinctive version of the Rawlsian “veil of ignorance” (where constitutional drafters imagine themselves choosing constitutional provisions on behalf of citizens whose specific identities they don’t know) to show how a constitution can specify a suitable path-dependent electoral procedure. The essay describes the details of one specific electoral system, Bracket Voting, that follows from this type of Rawlsian constitutional analysis. The essay also shows that Bracket Voting accords with the alignment principle for those circumstances in which Arrow’s Theorem and path-dependency are not practical problems for the polity under consideration. 

I welcome comments as the essay is still in the editing process.

In our first week, we published three additional essays with views on several ways to address the toxic political culture of our era, in addition to Randy Kennedy’s essay excerpted earlier here entitled: NOT By Any Means Necessary.

From John Sexton, on the role of universities:

“In a time when in some quarters ignorance actually is celebrated and expertise is mocked, those of us privileged to live in universities must beware ourselves of oversimplification and binary, ideological thinking; as we opine on issues facing our communities, we must model the appreciation of complexity (and its concomitant, dialogue) that characterizes our disciplinary work at its best. As we do so, we must bring along the humility, the openness to different thoughts, and the assumption of good faith that we exercise with respected colleagues in our fields.”

From Jake Sullivan, on a vision for national service:

“Establishing a universal expectation and opportunity for service offers something rare in today’s political climate: a solution that works, that young people want, and that has a clear implementation path.”

From former D.C. Circuit judge Tom Griffith, on the Framers as a model for handling political conflict:

“The Framers became friends who were willing to engage in good faith negotiations and seek mutual accommodations for the sake of unity. They did so because their backs were against the wall. Failure to reach compromise would have posed an existential threat to the new nation. Are we in a similar moment? I fear we are. But the Constitution shows us a path forward. If we’re willing to learn from the Framers — not just what they wrote, but how they wrote it — we can begin to heal. It won’t be easy. It demands humility and generosity. But it also gives us something we’re starving for: hope.”

Courthouse News Service (via Electionline).

Votebeat (via Electionline)

NPR’s All Things Considered

Francis Fukuyama for Persuasion warning, in particular, about the latest moves from Elon Musk and especially Larry Ellison. The latter, with his son, are seeking to (in Fukuyama’s words) “control a vast array of outlets, both legacy and new media, that will allow them to directly influence American politics.” There is also this snippet:

“The Supreme Court’s 2010 Citizens United decision that declared campaign spending to be protected by the free speech provisions of the First Amendment looks worse and worse as time goes on. Context matters here: corporations and wealthy individuals may have speech rights, but concentrations of wealth in the United States have gotten so extreme that the speech of a few individuals is vastly more impactful than that of the rest of us.”

The Post and Courier reports on Rep. Ralph Norman’s proposal to eliminate through gerrymandering Rep. Jim Clyburn’s House seat.

According to the story, “a far-right faction of the S.C. Legislature says it will introduce legislation to redraw the lines to give the GOP near-guaranteed control of all of the state’s congressional seats instead of its current six.”

But it is also unclear that the plan will be successful: “Outside of the Statehouse’s far right Freedom Caucus, Norman’s idea has found no support from Republican legislative leaders to take up a mid-decade congressional map redraw even as Republicans hold supermajorities in both the S.C. House and Senate.”

The article details reasons for this reluctance: “They are not eager to revive a dispute that landed them in a long-running federal lawsuit over alleged racial gerrymandering of the 2020 congressional maps — a fight that went all the way to the U.S. Supreme Court.”

The article then reviews the recent history of redistricting in South Carolina.

A new Center for American Progress report, with this subtitle: “By using their authority to define what corporations are—and what powers they hold—states can end the era of corporate and dark money in U.S. politics.”