Politico:

North Dakota Gov. Doug Burgum on Sunday supported the election fraud allegations made by former President Donald Trump, claiming on CNN: “I think it’s clear that there’s vote-buying going on at a scale like we have never seen before.”…

Trump, never shy about alleging uncorroborated malfeasance by Democrats, said his rivals use “welfare” as an enticement to get people to vote for them. “Don’t underestimate welfare. They get welfare to vote, and then they cheat on top of that — they cheat,” Trump said in his remarks on Saturday.

Burgum didn’t endorse the idea that everyone receiving public assistance is being bribed to vote (“I don’t think that’s the intention that he meant when he said that”) but then circled back to the idea of vote-buying, citing President Joe Biden’s efforts to partially forgive some student loan debt.

“You start trying to give away hundreds of billions of dollars of taxpayer money, and it’s not even — it’s like we’re borrowing to give it away. It’s not tax and spend. It’s borrow, borrow from the Chinese, and give it away,” he said.

Burgum added: “Citizens understand those are like preelection payoffs. Those are like, hey, folks, please vote for us because we’re relieving your debt. So at what point does it cross over, programs like student debt, to just vote-buying?” He then answered his own question, saying he saw this as an unprecedented effort at obtaining votes.

A two-term governor, Burgum was part of the 2024 Republican presidential field until dropping out in December. In July 2023, in order to meet the threshold of individual donors each candidate needed to participate in the GOP’s first debate, Burgum announced a campaign to reward individual donors with $20 gift cards.

“Doug knows people are hurting because of Bidenflation and giving Biden Economic Relief Gift Cards is a way to help 50,000 people until Doug is elected President to fix this crazy economy for everyone,” spokesperson Lance Trover said at the time….

Direct your tips and comments to them during their weeks. Thanks!

So notes this DOJ press release.

Valuable Brennan Center info.

Texas Tribune:

A recent “deepfaked” ad targeting House Speaker Dade Phelan could inspire further legislation to crack down on doctored imagery in political ads.

At the end of Monday’s hearing of the House Select Committee on Artificial Intelligence and Emerging Technologies, political attorney Andrew Cates suggested the committee should recommend an update to Senate Bill 751 from 2019, which created a Class A misdemeanor offense for distributing a “deep fake video” created with the intent to deceive voters.

“Not to bring up sensitive stuff, but the speaker got hit a couple days ago with a fake image, or a deceptively altered image,” Cates said. “It’s not against the law here.”

That mailer, paid for by the Jeff Yass-bankrolled Club for Growth Action PAC, depicted Phelan in an intimate hug with former U.S. House Speaker Nancy Pelosi, apparently a remake of Pelosi hugging new House Democratic Leader Hakeem Jeffries.

Less publicized was the flip side of the mailer, which falsely depicted Phelan at a lectern speaking at a Texas House Democratic Caucus news conference.

NYLJ.

Rick Pildes here. A month after Jan. 6, 2021, I wrote an essay in the New York Times asserting that “every political reform proposal must [now] be judged by its ability to fuel or weaken extremist candidates.” I’ve now posted at SRRN a much fuller essay, entitled “Political Reforms to Combat Extremism,” which is forthcoming as a book chapter in a book out this fall entitled Our Nation at Risk: Election Integrity as a National Security Issue (J. Zelizer and K. Greenberg eds).

Here is the link to that forthcoming article and the abstract:

This article first identifies different ways of defining political extremism. It then explores empirical perspectives on the extent to which current political extremism and affective polarization are driven from the top down (political elites) or the bottom up.

After addressing these issues, the article then turns to five areas of institutional reform that could help mitigate political extremism: (1) replacing the traditional party primary; (2) changes to the presidential nominations process; (3) the right reforms of campaign finance; (4) greater emphasis on competitive election districts; and (5) changes to voting systems.

There is no silver bullet or set of institutional reforms that can magically transform our political culture. But institutional reforms can at least mitigate to some extent the political extremism that currently characterizes American political culture and politics.

This story reports that proponents of this ballot measure appear to have gained enough signatures to get the measured qualified for the ballot this fall. This is “the Alaska model” of primary reform, a reform that both Ned Foley and I support and have written extensively about.

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.” UPDATE: Marty Lederman has suggested to me that the SC meant to argue that private gain is sufficient to defeat immunity, but not necessary. I can see that possibility. But nothing in the SC’s argument made that point clearly. If he meant to say private gain was only one context in which immunity should not be recognized, that point did not come across.
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.