The opinion has some really interesting ballot initiative issues, including the timing of election contests, and pre-election v. post-election challenges, with some dissents largely on procedural issues. From Lucas v. Ashcroft (lightly revised):

Twelve departing members of Congress offer their thoughts in a N.Y. Times opinion video. The responses focused on attempting to fix the culture of Congress–how members from opposite parties used to get along but now don’t. To the extent, they mentioned structural or institutional changes, these too were devoted to improving congressional culture–like the idea that orientation for new members be bipartisan. None mentioned the possibility of changing the way members of Congress are elected, not even a mention of the need to curtail aggressive partisan gerrymandering, or making districts more competitive so that there aren’t so many safe seats. Perhaps it’s not surprising that elected officeholders would not think to change the means by which they themselves were elected, but now that they are exiting the institution, perhaps they can give more thought to that component of the problem–as all of us who care about the future of American democracy should. As I wrote in my recent Virtues and Institutions essay, we must pursue electoral reforms that are centripetal in nature, to counteract the current extent of partisan polarization. If members of Congress were elected by means of voting procedures that were more centripetal than those currently in place, it would be much, much easier to foster the kind of consensus-seeking congressional culture that these exiting members of Congress so regret is lacking.

Order list.

…for serving as primary ELB blogger these last few weeks.

I’ll be blogging this week, then we will start another rotation of folks next week.

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.”
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.

Very interesting report from Paul Kane of the Washington Post of a day-long meeting of 7 former Republican and six former Democratic members of Congress:

“Their ideas ranged from a major rethinking of how the body works to symbolic changes that could be implemented next month if anyone had the willpower.

“Eliminate partisan gerrymandering for House districts. Reshape campaign laws to give candidates almost full power over their own races. Make even modest tweaks to the legislative calendar to produce more days for committee work, and spread those meetings out so everyone can attend.”

I think gatherings of this type are a great idea. I only wish that in addition to eliminating partisan gerrymandering, there had been some discussion of nonpartisan primaries along the lines of Alaska’s top-4 system (as Rick Pildes prioritized in his recent Dunwody lecture). And speaking of this type of reform, there’s an important new paper by Ben Reilly and his co-authors simulating what the effect of Nevada’s top-5 variation on Alaska’s system might be given the current political conditions of Nevada itself. Here’s the paper’s abstract:

Electoral reforms that eliminate party primaries and plurality elections are often adopted with the goal of providing voters more options in the general election, advantaging moderate politicians, and providing non-major party candidates a better chance of winning office. In this article, we assess these claims in the context of a proposed top-five primary and ranked choice general election system in Nevada, which will adopt this model for all future elections if confirmed at a second initiative poll in November. Using a survey of Nevada voters in four hypothetical top five elections, and simulating different potential turnout scenarios, we find mostly confirming evidence for these claims. Moderate candidates from the two major parties, via cross-party rankings transfers, are advantaged at the general election. Voters will get more choice than at present and should usually be able to choose from multiple major party candidates in the general election, often leading to both the traditional and insurgent wings of the parties represented. However, to the extent that this occurs, the reform leaves less room for third party and independent candidates and in some scenarios may shut smaller parties out from the general election ballot entirely.

Also, one very simple reform that Congress could mandate for itself is a requirement that a candidate receive a majority, rather than a plurality, of votes in order to win a seat in Congress. That one-sentence rule, as I’ve discussed previously, would encourage states to experiment with the kind of systems that Alaska and Nevada have adopted.

I very much appreciate Tabatha’s follow-up to my earlier post, and I especially appreciate her discussion of the new article Dismantling the Party System: Party Fluidity and the Mechanisms of Nineteenth-Century U.S. Politics by Rachel A. Shelden and Erik B. Alexander, which I found very interesting although not entirely persuasive.

I’m not sure there’s much disagreement between Tabatha and me. As she says, she doesn’t take issue with my basic point. To the extent that there appears to be some difference of opinion, it may be based on different understandings of the key sentence that I quoted from the Washington Post explainer that prompted my initial post. Here, again, is that sentence: “For much of U.S. history, there were more than two major political parties, and that could emerge again.” 

I interpreted this sentence as meaning that for a large portion of U.S. history there was a major third party and perhaps even additional major parties. I based that interpretation in part on the end of the sentence saying what occurred before, but doesn’t exist now, could occur again. Because we currently have minor third and fourth parties, like the Libertarians and the Greens, I assumed that the author of the explainer intended to mean that third (and perhaps more) parties in much of the past were major rather than minor competitors in electoral politics. Given that interpretation of the sentence, my contention was–and remains–that it is inaccurate.

But perhaps it is possible to interpret the relevant sentence as meaning only that for large chunks of American history, more than two parties existed even though these additional parties were not major electoral competitors. This interpretation would require treating the minor parties that exist today as insignificant in a way that minor parties in previous eras, even though minor in comparison to the two major parties, were not insignificant. If interpreted this way, the sentence is not inaccurate. It is indisputable, as Tabatha and the Sheldon-Alexander article describe, that in the nineteenth century minor parties were more of a factor in electoral competition than subsequently.

Even so, it remains true that the plurality-winner rule that has dominated American elections since the Jacksonian era has not permitted third and other minor parties to become major parties unless and until they replace one of the two previously existing major parties. Insofar as the Sheldon-Alexander article takes issue with this point, I think it is mistaken. The article argues that it is wrong to think of a “party system” existing in nineteenth-century America. The article contends, instead, that there was much more fluidity in nineteenth-century political competition than is suggested by the idea of a party system.

I agree that there was much more fluidity in partisan dynamics in the nineteenth century, but I don’t think that truth undermines the basic point that party systems existed as a result of the plurality-winner rule and related election laws and, as a consequence, no more that two major parties were sustainable at any given time.

If this is correct–and remains so as long as the plurality-winner rule stays in place–then we need to ask what possible roles exist for minor parties within the existing system. One possibility is that the presence of minor-party candidates can determine which major-party candidates wins. Whether or not we use the term “spoiler” to describe this role, we must understand that substantively it describes a negation of majority choice: the key point when this occurs is that the other major-party candidate would have received a majority of votes if the election had been limited to solely the two major-party candidates; but with the additional minor-party candidates in the race, a different major-party candidate receives a plurality (but not a majority) of the votes. It is important to appreciate the consequences to collective self-government from letting minor parties play this outcome-determinative role.

In the existing plurality-winner system, minor parties also (at least theoretically) could play the role of a power broker or “kingmaker” by throwing their support behind one of the two major-party candidates. This is the kind of role that is envisioned by advocates of fusion voting. But this kind of role can exist even if laws are not changed to facilitate fusion voting on the government’s ballot. There is currently nothing stopping the formation of third (and more) parties, and for those new parties to tell their members to support their preferred major-party candidate.

Moreover, Tabatha’s call for “relegalizing fusion” (so that minor parties can show their support for major-party candidates directly on the government’s ballot) is a confirmation of my most basic point: that the only way for third (and more) parties to play a truly robust role in American electoral politics is if election laws are changed to facilitate that. To be clear, I too want the enactment of some of those reforms, although I’m dubious that fusion voting alone is enough. Some forms of ranked-choice voting, in my judgment, would do much more to invigorate the possibility of electoral competition from third (and other) parties. Ultimately, I think it is important to be realistic about the role third parties will continue to play without this kind of reform.

USA Today reports. The article begins: “The Republican National Committee and its lawyers are going state to state seeking to influence what laws and procedures will govern the November election.” I think it’s only fair to point out, which the article doesn’t do, that this is something that Democrats did in prior election cycles. To be sure, Republicans ask the courts for different election rules than Democrats do, but it’s still going to court to get more favorable laws than what existing procedures provide.

This article is also misleading in other ways. For example, it states: “If the [RNC’s] cases are successful, fewer people will be allowed to vote in November, and fewer absentee ballots will be counted.” This sentence strongly implies that the RNC seeks, and may persuade courts to mandate, wrongful disenfranchisement of eligible voters. But farther down in the piece, the litigation that is described seeks only the enforcement of the NVRA’s list maintenance requirements. The RNC’s NVRA claims may–or may not–have merit. Both Nevada and Michigan vigorously contest the validity of its NVRA claims in their respective states. But if they do have merit, enforcement of the NVRA won’t constitute wrongful disenfranchisement but instead proper enforcement of existing election law. The idea that a successful lawsuit could cause the wrongful denial of the right to vote is inaccurate–and presents the danger of breeding just the kind of distrust in the rule of law that the article says would damage democracy.

Also, although the article and its headline highlight the cases where the RNC is a plaintiff, many of the cases the article discusses are those in which the RNC is or seeks to be a defendant-intervenor. It’s hard to say that those cases qualify as ones in which “[t]he Republican National Committee and its lawyers are going state to state seeking to influence what laws and procedures will govern the November election,” to quote the opening sentence again.

All in all, this piece in my judgment is a very sloppy job of reporting and, rather than educating the public on election law and litigation, does a disservice to readers attempting to understand how the electoral system operates and the prospects that this year’s election will be conducted in a way that voters can be confident that the candidates who are declared the winners are the ones for whom the participating and eligible voters actually cast their ballots for.

POLITICO:

“On Tuesday, the Trump campaign sent a letter to pro-Trump, external organizations asking them to attend an “entirely off-the-record, private,” and “invite-only” meeting with senior campaign officials, according to a copy of the letter obtained by POLITICO. The sit-down, which the letter describes as a “meeting of the political minds,” is aimed at discussing “collaborat[ion]” and “priorities and plans” for the general election. …

“There have long been tight restrictions on how federal campaigns and political committees can coordinate. But a recent Federal Election Commission advisory opinion, dated March 20, relaxed limitations on how they can collaborate on paid door-knocking efforts.

““We will share our macro view of the electorate with you and discuss new opportunities (in light of a recent FEC ruling) for our organizations to collaborate more effectively than we have been able to in the past,” according to the invitation. “We also ask you to come prepared to share any information you legally can about your priorities and plans with us.”

“The letter indicates that Trump campaign officials and outside groups will be treading carefully legally during the meeting. It notes that Republican National Committee chief counsel Charlie Spies and Trump campaign counsel Dave Warrington “will oversee this meeting to ensure legal compliance.”

“Trump officials appear to be placing a premium on the new FEC decision. Last week, Blair spoke before a meeting of the Rockbridge Network, a secretive gathering of conservative donors. During his remarks, Blair alluded to the advisory opinion, which he described as a game-changer, according to two people familiar with the remarks who were granted anonymity to discuss the matter.”

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.