Under this GOP Measure, All of Missouri’s Recent Popular Initiatives Would Have Failed

As Georgia Returns to Electing Its Utility Commission, Worries over Democracy Linger

I just posted this paper, written for the Ohio State Law Journal’s symposium on my book, “Aligning Election Law.” The paper explores how the principle of alignment — congruence between governmental outputs and popular preferences — could be incorporated into mainstream constitutional law. Here’s the abstract. I’ll also be giving the Constitution Day Lecture at Drake University today based on the paper.

At present, American constitutional law gives short shrift to the democratic value of alignment (congruence between governmental outputs and popular preferences). But it doesn’t have to be this way. In this symposium contribution, I outline three ways in which constitutional law could incorporate alignment. First, alignment resembles federalism in that it’s a principle implied by the Constitution’s text, structure, and history. So doctrines analogous to those that implement federalism could be crafted to operationalize alignment. Second, comparative constitutional law recognizes democratic malfunctions that involve misalignment as well as innovative judicial remedies for these problems. Likewise, American constitutional law could appreciate the full arrays of misaligning threats and potential judicial responses to them. Lastly, one of the key concepts of modern originalism is the construction zone, in which disputes must be resolved on grounds other than the constitutional text’s original meaning. Alignment could be a factor that courts consider in the construction zone, pushing them to further, not to frustrate, this value.

VoteBeat’s article explains the new compromise proposal aimed at getting holdouts to agree to early processing of absentee ballots. The compromise includes “regulations for ballot drop boxes and an explicit ban on clerks fixing, or curing, errors on ballots.” Will Governor Evers sign the bill, assuming it passes? The article states: “Evers’ team has said he would sign a Monday processing proposal that’s packaged with other measures, as long as they didn’t contain a “poison pill” or make voting harder.” That leaves me still unclear on the measure’s ultimate fate.

Courthouse News reports on the federal district court’s denial of the Trump Administration’s motion to dismiss in the lawsuit challenging Trump’s executive order on elections. The court ruled that the states have standing to sue and that they plausibly allege violations of federal law, including the NVRA.

Comprehensive coverage from The Washington Post.

I was struck by reading two sharply contrasting stories about different civics education initiatives this week. First, within an article focusing on on the “In Pursuit” project (which has prominent current figures discussing significant individuals in American history), the N.Y. Times links to a story about a coalition of organizations devoting $56 million to improved civics education. This effort will support, among other things, “expansion of National Constitution Center programs.” Second, the N.Y. Times also has a story about another civics education effort led by President Trump and his administration. This one reportedly will bypass “traditional civic education groups, such as the National Constitution Center.”

It is perhaps not surprising that a time of hyper-polarization civics education itself will become polarized. I suppose we can hope that debating the meaning and fundamental values of America in the context of civics education will at least cause Americans to focus on these matters and decide for themselves what their country stands for and what they want it to be–and that self-government rooted in free and fair elections will be part of that core commitment. That kind of aspiration was expressed by Donna Phillips, the CEO of the Center for Civics Education, who told the Times: “‘My hope is that the announcement of [the Trump-led] coalition is a starting point for the entire nation to prioritize civics.'”

Characteristically thoughtful and eloquent words from the N.Y. Times columnist. It begins: “It’s hard to grasp the magnitude of the emerging threat to free speech in the United States.”

It ends by quoting some of Justice Robert Jackson’s best lines from his opinion for the Court in West Virginia Board of Education v. Barnette, the case invalidating compulsory flag statute laws.

The heart of French’s newsletter is devoted to Frederick Douglass’s 1860 “Plea for Free Speech in Boston,” which French says “is the single most compelling argument for free speech that I’ve ever read.”

N.Y. Times reports on Adam Jentleson’s new organization, which is “starting with an annual budget of $10 million … [and] is subsidized by a roster of billionaire donors highlighted by Stephen Mandel, a hedge fund manager, and Eric Laufer, a real estate investor.” The article focuses on Jentleson’s conflict with more progressive elements of the Democratic Party’s coalition, including this:

“He also criticized the Center for American Progress, the leading Democratic think tank, as ‘100 percent pure uncut resistance drivel.’ Organizations focused on climate change, gun control and L.G.B.T.Q. rights have all managed to get Democratic presidential hopefuls on the record taking far-left positions to the detriment of their general election performance, Mr. Jentleson added.”

I was curious about how the new entity, called Searchlight Institute, is being organized for campaign finance and tax purposes, but the article does not address that. It evidently has a specifically electoral purpose, not just a generically political one, but much of its expenditures probably could be avoid being classified as electioneering. For those thinking about campaign finance regulation ought to be conducted in a post-Citizens United world (if ever that were to transpire), what would be the appropriate way to treat an organization of this nature? Purely disclosure rules? Contribution or spending limits? Or outside the scope of campaign finance regulation altogether, because its activities are more properly understood as not specifically election-related despite its electoral purpose–and thus should be treated as the equivalent of Brookings, AEI, and other think tanks?

Interesting story in The Verve. “’It’s essentially a way for [Zuckerberg] to spend the company’s money on his political choices, whereas at a company like Google, there’s not a single person who’s a majority shareholder who can dictate what the company does,’” Rick Hasen, a UCLA law professor specializing in election law, told The Verge. “’It’s interesting, because Zuckerberg could just spend his own personal money to do this. But instead, he’s doing it through the company.’ …

“But Zuckerberg could also play a role in state elections with implications far beyond tech. In November, Californians will vote on whether to redraw California’s congressional map to add five more Democrat districts — a direct response to Texas Republicans redrawing their own map to gain a five-vote advantage in the House of Representatives. And next year, with Newsom ineligible to run for reelection due to term limits, Californians will have to vote for a new governor — a person that any tech corporation, Meta included, would love to directly influence.

“’It doesn’t mean [Zuckerberg has] made the choice” to do that, Hasen added. “But since he controls the company, if [a super PAC] is something he didn’t want to do, I’m sure they wouldn’t be doing it.’”

AP reports. DOJ claims that the states are violating the NVRA, HAVA, and the Civil Rights Act of 1960. Both states are vigorously opposing DOJ’s efforts to get access to the state’s unredacted voter registration database, citing privacy concerns. This is a lawsuit worth watching.

At NYU’s Democracy Project, Professor Wojciech Sadurski, Challis Professor of Jurisprudence at the University of Sydney and Professor at the University of Warsaw Center for Europe, has an important essay on the struggle of how democrats should respond, once back in power, to the institutional remnants of authoritarian regimes. An issue worth reflecting on.

Some excerpts:

What happens when authoritarian populists lose to their democratic opponents in democratic elections? A process of restoration of democracy and the rule of law, following the best international practices, will take place, you might say.

Much easier said than done. Especially when the populists have deeply undermined the fundamental institutions of democracy, such as legislative processes, the separation of powers, the system of justice, and public prosecution. The process of reform is arduous and lengthy; rather than a broad highway with clear signposts, it is a narrow, bumpy country road, with no signs indicating the destination, and plenty of potholes along the way. Or to change the metaphor, a minefield left by the former incumbents to their democratic successors. Or, to change the metaphor once again, a Sisyphean democracy….

The answer seems to be obvious – however, it is anything but. If the rule of law is understood as faithful, strict compliance by the authorities with the language of all the statutes in force, then the call for compliance with the rule of law equals a recipe for paralysis. It is how a Sisyphean democracy was supposed to work, as envisioned by the populist predecessors. On the other hand, disregarding the legal provisions in force subjects the democratic government to the predictable accusation, both by local rule-of-law NGOs and the international community (in Europe, the Venice Commission in particular), that their successors are simply replicating the infamous practices of the populists, except this time against them.

Poland is currently grappling with this issue. The essay concludes:

How Polish democrats will handle the dilemma just outlined, against all odds, is likely to carry important lessons for democratic forces engaged (today and in the future) in post-populist transitions elsewhere in the world.

Wall Street Journal editorial. It begins: “Is a basic understanding of the First Amendment too much to expect from the nation’s Attorney General?”

The Wall Street Journal reports. The article points out that Trump has already endorsed Secretary of State Brad Raffensperger’s opponent for the Republican nomination, Lt. Gov. Burt Jones. The state AG, Chris Carr, is also in the race for the GOP nomination. Georgia law requires a runoff in the GOP primary if no candidate initially wins a majority of the vote.

POLITICO has a story that is mostly about Bondi but what it says about Trump struck me as most significant. It begins with Bondi:

“Attorney General Pam Bondi on Tuesday appeared to walk back comments promising to target broadly defined “hate speech” following the killing of conservative influencer Charlie Kirk, after facing significant backlash from both conservative and liberal circles over her threat to curb free speech.”

But this is what it says about Trump:

“Asked by reporters about the attorney general’s remarks Tuesday, Trump returned to a suggestion he has previously floated — that members of the media should be targeted for their coverage of his administration — which he claimed was ‘hate.’”

“’We’ll probably go after people like you because you treat me so unfairly, it’s hate. You have a lot of hate in your heart,’ Trump said, responding to a question from ABC’s Jonathan Karl.”