Category Archives: election subversion risk

Judge Griffin Ignores Justice Scalia’s Bush v. Gore Argument About Irreparable Harm in His Brief in 4th Circuit in Due Process Challenge to Attempt to Overturn Result of North Carolina Supreme Court Election

election subversion risk, judicial elections

You can read Judge Griffin’s brief at this link. It briefly cites Bush v. Gore, but completely ignores the main point about irreparable harm that Justice Scalia first flagged in his Bush v. Gore stay concurrence. See here.

The state election board’s brief, also filed today, makes the point succinctly:

Fourth, an injunction is in the public interest. Implementing a state election process “of questionable legality . . . cast[s] a cloud upon” “the legitimacy of [the] election.” Bush v. Gore, 531 U.S. 1046, 1047 (2000) (Scalia, J., concurring). “Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.” Id.

Share this:

“Administration’s Dubious Trustworthiness Permeates Hearing On Trump Election Order”

election administration, Election Assistance Commission, election subversion risk

TPM:

A cagey Trump administration arrived at court Thursday, where a judge presided over the early stages of a lawsuit stemming from a March executive order mandating that proof of citizenship be added to federal voting forms. 

As soon as the hearing began, Judge Colleen Kollar-Kotelly began grilling the Justice Department’s Michael Gates. The administration said, in court documents, that it hadn’t even begun implementing the executive order. So why, she asked, do the Democratic groups challenging the order have a letter from the director of the Election Assistance Commission — dated days after the administration made that claim to the court — seeking a consultation with state election officials about how to implement it?

“Your briefs and her declaration don’t mention the letter at all,” Kollar-Kotelly said, referring to the EAC director. “Were you or any defense counsel aware of the letter at the time you filed your opposition briefs on April 14th?” 

“Your honor, we’re probably both under the same understanding that the letter is dated three days after we submitted our opposition —”  

“No,” interrupted Kollar-Kotelly. “The letter was dated April 11 and you submitted it after. So your brief came after, which is why I’m raising the question.” 

Gates quickly changed tacks. 

“Fair enough,” he responded. “On the one hand, we didn’t know about the letter — but on the other, I now have an explanation in the context of the rulemaking process under the [Administrative Procedure Act].” 

He’d go on to argue that the EAC director was taking a preliminary step and not starting the process in earnest. In a prolonged, frustrated back-and-forth, which came to characterize much of the hearing, the increasingly incredulous judge asked whether Gates truly believed that gathering the input of the states and describing the executive order as an “instruction” was not starting the process of implementation. 

Gates was similarly squishy throughout, declining to say, at one point, under which law Attorney General Pam Bondi would enforce the executive order, offering that he and the judge could gaze into their “crystal balls” to know what form future legal action would take.

In another exchange, Kollar-Kotelly tried to determine whether the executive order would allow states to decide against adding a proof of citizenship question, or if it was a mandate. The Democratic groups and voter leagues challenging the order took Gates’ evasiveness as proof that adding the question would be mandatory, and state input merely decorative.

Calling Gates’ performance “helpful,” the voting groups’ Sophia Lin Lakin said: “It is not speculative whether or not a documentary proof of citizenship requirement will be added to the federal form as defendants’ briefing suggested — but Mr. Gates says while the exact language on the form might change depending on notice or comment, the outcome is predetermined; it is a requirement of the executive order.”….

Share this:

“The Judge Ruling on the North Carolina Election Fight Should Heed Bush v. Gore”

Bush v. Gore reflections, election subversion risk

I have written this piece for Slate. It begins:

In a preliminary order issued over the weekend likely designed to split the baby, a federal district court in North Carolina has told North Carolina election officials that they should follow a state court’s ruling to figure out which of thousands of military and overseas ballots cast by North Carolina voters should be thrown out in a dispute over the winner of a November state Supreme Court election. But the federal court also told election officials not to certify the winner of that election until it can decide if the state court–ordered remedy is unconstitutional.

This is a recipe for disaster. The federal court should have heeded the advice of Justice Antonin Scalia in the 2000 Bush v. Gore case about not allowing a questionable redo of vote totals to be announced before there’s been a ruling on the legality of the redo. The judge’s order in North Carolina could well lead people to believe the state Supreme Court election was stolen no matter what happens….

And Justice Richard Dietz, a Republican dissenting justice, was equally scathing, stating that he was wrong to believe “our state courts surely would embrace the universally accepted principle that courts cannot change election outcomes by retroactively rewriting the law.”

The constitutional problems with the court-ordered redo are deadly serious and risk election subversion. To begin with, changing the rules for ballot eligibility after the fact violates the due process clause of the U.S. Constitution’s 14th Amendment. Election law scholar Rick Pildes points to leading cases including a 1995 case, Roe v. Alabama, where federal courts stopped the Alabama Supreme Court from retroactively changing the results of an election to turn an election loser into an election winner. He points out how voters relied on state officials to tell them what they had to do to vote, and they all followed the state’s orders. It violates due process to disenfranchise them, as noted Republican election lawyer Ben Ginsberg argues. “By changing the rules of the game after it’s been played to potentially disenfranchise as many as 60,000 voters, this court has gone where no court has gone before,” Ginsberg told the New York Times. “Until this decision, courts facing challenges to ballots cast in compliance with past practice and election administrators’ instructions had uniformly sided with the voters.”

And the problem is even worse, as election law scholar Justin Levitt argues, because it looks like voters actually were complying with state law as it existed at the time….

With all of these constitutional problems, there is a good chance that a federal court is going to find that this attempt at election subversion by North Carolina courts violates the federal Constitution. If that’s the case, the best course of action is to decide the constitutional issues first before going through the process of trying to track down identification of voters overseas in combat or elsewhere around the world.

Indeed, a similar issue arose in Bush v. Gore. A Florida court had ordered a statewide recount of certain ballots. George W. Bush, who was ahead in the count, went to the U.S. Supreme Court arguing that the method of doing the recount was unconstitutional. But Bush asked the counting to stop as the Supreme Court considered the constitutional question, and the court agreed.

Scalia issued a concurring opinion arguing that stopping the counting until the constitutional issues could be addressed made sense in this context:

The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.

Scalia’s statement was controversial, because the presidential election was up against a strict deadline to finalize results for the presidency, and stopping the counting essentially allowed Bush to run out the clock. But that’s not at issue in the North Carolina case. This can be decided a few weeks or even months from now.

Even more importantly, Griffin’s arguments about the need to check voter ID comes at a time when bogus claims of voter fraud are rampant. If election officials cannot find enough overseas and military voters to send in copies of their photo identification in time and the result looks like it should flip, but then the federal court says afterwards that the redo is unconstitutional, people on Griffin’s side will wrongly believe fraud stole the election.

And of course if the federal court countenances this blatant due process violation and lets Griffin take office, the rest of us will see this rightly as a stolen election. And a bad sign for the rule of law in the United States and future fair elections….

Share this:

In a 4-2 Opinion that Will Disenfranchise Military and Other Voters and Likely Overturn the Results of a Valid Election in Violation of Due Process, North Carolina Supreme Court Allows Griffin Election Contest to Go Forward, in Part

chicanery, election subversion risk, judicial elections, recounts

WRAL:

Republican Judge Jefferson Griffin has won, in part, his effort to throw out thousands of voters’ ballots from the 2024 elections. On Friday the North Carolina Supreme Court rejected some of Griffin’s challenges but kept others alive, paving the way for him to potentially be declared the winner of last year’s race for a seat on the Supreme Court.

The ruling in Griffin’s favor was mostly along party lines: The 4-2 decision saw one of the court’s Republican justices break party ranks, while the rest joined in the majority ruling for Griffin.

Democracy Docket:

North Carolina’s highest court issued a mixed ruling Friday in the ongoing legal saga over the 2024 election between state Supreme Court Justice Allison Riggs (D) and her Republican challenger, appeals court judge Jefferson Griffin. 

Per today’s ruling, around 60,000 ballots with incomplete registrations cast in the 2024 state Supreme Court election will be counted. The Court also issued a 30-day cure period for the roughly 5,000 overseas military voters who did not provide proper photo ID when they registered to vote. But the Court greenlit the decision of a lower court to reject around 200 ballots cast by overseas voters who are registered to vote in North Carolina but never resided in the state. Those ballots will not be counted. 

Riggs said in a statement that she will immediately ask the federal courts to intervene in the case.

This is disenfranchising of voters and raises the risk of election subversion. It’s unprecedented, as Republican lawyer Ben Ginsberg explained about the earlier Court of Appeals ruling, and it violates due process rights of voters (and potentially other federally protected rights) by changing the rules after the fact, as Rick Pildes and Justin Levitt explained.

I hope that the federal courts will now correct this due process violation. As Judge Earls wrote in her dissent:

I have no doubt that this special order, upending years of precedent, violating due process, resulting in the discarding of thousands of legitimate votes, and issued with unseemly haste as though quickly ripping the bandage off the deep wound to our democracy will hurt less, marks one of the lowest points of illegitimacy in this I look forward to the day when our Court will return to the rule of law and act to resolve the critical issues implicated in matters such as this with clarity, transparency, and even treatment for all voters and candidates.

Share this:

“Trump is Already Undermining the Next Election”

authoritarian threats in US, election subversion risk

Paul Rozenzweig for The Atlantic:

An unfortunate reality now confronts Americans who value the rule of law: The court system has limited capability to act as a guardrail against Trumpist authoritarianism. And so elections matter—vitally. The final and most powerful check on Donald Trump has always been, and will always be, the ballot box.

The president knows this, and that is why he has now turned his attention to the election system. His recent executive order on election “integrity” is nothing less than an attempt to disenfranchise his opponents and forestall electoral defeat.

Some of that effort is rather technical in nature, but the fundamentals of Trump’s challenge to free and fair elections are easy to understand. This is an attempt to completely rework the constitutional rules that structure the American election system.

Share this:

“DOJ: Some Jan. 6 defendants should be repaid money they sent to Congress”

election subversion risk

Politico:

Jan. 6 defendants whose convictions were wiped out by President Donald Trump are entitled to a refund of restitution payments they made to cover damage to the Capitol, the Justice Department said Tuesday.

The department’s determination could result in hundreds of payouts from the federal government intended to cover the cost of repairing about $3 million in damage to the Capitol from the riot on Jan. 6, 2021.

The administration revealed its position in a filing to U.S. District Judge Tanya Chutkan, who is weighing one defendant’s request to be repaid the $500 in restitution he sent to the Architect of the Capitol after his conviction on misdemeanor charges.

The defendant, Stacy Hager, argued in February that he should be reimbursed now that his conviction has been erased as part of President Donald Trump’s sweeping grant of clemency to more than 1,500 people charged in the attack.

The Justice Department did not respond until Tuesday.

“The government agrees that Hager is entitled to the return of those funds,” Assistant U.S. Attorney Adam Dreher wrote.

Most defendants convicted for their roles in the Capitol attacks were required to pay restitution to the Architect of the Capitol, the congressional office responsible for the maintenance of the building. Those convicted of felonies typically paid $2,000 and those convicted only of misdemeanors typically paid $500….

Share this:

NC elections, due process, and a friendly (?) amendment

absentee ballots, chicanery, election law and constitutional law, election subversion risk, voter registration

Hi. Justin here. Rick Pildes just posted here about the significant federal due process problems with Friday’s state appellate opinion on the North Carolina state supreme court race.

I’ll go further: I think that the appellate decision raises a number of additional federal issues, all stemming from the fact that the only ballots challenged were early or mail ballots, despite the fact that the principal challenge (60,273 out of the 61,949 challenged ballots) has nothing to do with any invalidity in the method of voting. Instead, the challenges are based on allegedly missing voter registration data (more on that in a sec) also likely missing from unchallenged voters who went to the polls on election day. Because for purposes of whether their registrations are valid or invalid, the challenged voters and unchallenged voters are similarly situated, I don’t know why this isn’t an equal protection concern and a problem under 52 U.S.C. 10101(a)(2)(A). (There are other problems beyond these, as well – I don’t mean to be listing them all.)

But I agree with Rick that the federal due process problems are unmistakably front and center. Indeed, I think it may be even worse than he suggests.

Much of the reporting that has ventured into the weeds of these allegations says that the 60,273 challenged ballots were cast by voters who didn’t provide their driver’s license number or social security digits when registering. As Rick P. points out, that’s in part because the state registration form in the relevant period didn’t ask the voters for that info. Voters did what they were told to do, were told they were registered, and some had been voting for years. (There’s no indication anywhere in the case that any of these 60,273 voters are substantively ineligible under NC’s constitution.)

But there’s a further problem: in a passage wholly unrebutted by the majority, the dissenting opinion says that the description above just isn’t true. It’s not that 60,273 challenged ballots were cast by voters who didn’t provide their driver’s license or social security digits when registering. It’s that 60,273 challenged ballots don’t have those digits listed in the state database. Those things are NOT the same.

The dissent notes that, among other reasons, digits that are supplied but not matched to other systems aren’t kept in the state database. There are many reasons why the numbers for eligible voters may not match up, including typos by temps doing data entry, and discrepancies in how different databases store naming patterns. (All of these voters must show documentation of their identity before they vote for the first time, pursuant to both state law and HAVA.)

Put differently: some portion of these voters now presumptively disenfranchised by the appellate court’s opinion likely complied perfectly with state law. Judge Griffin apparently produced no evidence about how many voters are in this category, and how many are in the category Rick notes, in which the failure was the state’s fault and the voters did everything the state asked them to do. (On p. 32 of the dissent, Judge Hampson notes that the Board produced “evidence tending to show” that almost half of the voters likely did provide digits that aren’t now reflected in the database.)

I think that makes the due process problem that Rick P. highlighted even worse. If the dissent’s characterization of the evidence is accurate, for a set of the challenged voters, it’s not just that the rules have changed with respect to the notion that they might now, in rules shifting after the election, be held responsible for the state’s mistake. It’s that the rules have changed such that the court of appeals has ordered their ballots to be invalidated, after the election, without proof of any violation of North Carolina law.

Share this:

Quote of the Day

election subversion risk

“By changing the rules of the game after it’s been played to potentially disenfranchise as many as 60,000 voters, this court has gone where no court has gone before . .. Until this decision, courts facing challenges to ballots cast in compliance with past practice and election administrators’ instructions had uniformly sided with the voters.”

–Benjamin Ginsberg, a Republican election lawyer who was national counsel for the Bush-Cheney campaign during the 2000 election and recount, to the NY Times, on the abysmal and disenfranchising 2-1 North Carolina ruling.

Share this:

The Yale Journal Has Just Published My New Feature Article: “The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law”

election subversion risk, Supreme Court, The Voting Wars, Voting Rights Act

I am delighted that the Yale Law Journal has published my new Feature, The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law, 134 Yale L.J. 1673 (2025). I consider this among the most important work I’ve written. For those who may have read an earlier draft, this draft is substantially rewritten, especially Part III, which develops the pro-voter approach more deeply building on the work of Robert Dahl and international human rights law.

Here is the abstract:

This Feature describes the stagnation and retrogression of election-law doctrine, politics, and theory, explains why these trends have emerged, and explores how to transform election law in a pro-voter direction.

It begins by detailing election law’s stagnation. After a short period of strengthening voting rights, courts (and especially the Supreme Court), acting along ideological—and now partisan—lines, have pulled back on voter protections in most areas of election law. Courts have deprived other actors, including Congress, election administrators, and state courts, of the ability to protect voters’ rights more fully. Politically, pro-voter election reform has stalled in a polarized and gridlocked Congress, and the voting wars in the states mean that ease of access to the ballot depends in part on where in the United States one lives. Election-law scholarship also has stagnated, failing to generate meaningful theoretical advances about the field’s key purposes.

The Feature then considers the more recent retrogression of election-law doctrine, politics, and theory to a focus on the very basics of democracy: the requirement of fair vote counts, peaceful transitions of power, and voter access to reliable information. In the aftermath of the 2020 election, liberal and conservative judges rejected illegitimate attempts to overturn Joe Biden’s presidential-election victory. Yet courts’ ability to thwart attempted election subversion remains a question mark in light of the Supreme Court’s recent decisions in Trump v. Anderson and Trump v. United States. Congress came together at the end of 2022 to pass the Electoral Count Reform Act to deter future attempts to manipulate Electoral College rules in order to subvert election results, but future bipartisan action to prevent retrogression seems less likely. Further, because of the collapse of local journalism and the rise of cheap speech, voters are less able to obtain reliable information to make voting decisions consistent with their interests and preferences. Meanwhile, parties have become potential paths for subversion. Party-centered election-law theory, and the First Amendment marketplace-of-ideas thesis, have yet to incorporate these emerging challenges.

Finally, the Feature considers the potential to transform election-law doctrine, politics, and theory to favor voters. Election law alone is not up to the task of saving American democracy. But it can help counter stagnation and thwart retrogression, beginning by assuring continued free and fair elections and peaceful transitions of power. More broadly, a pro-voter approach to election law grounded in political equality engages legal doctrine, political action, and election-law scholarship to further five principles: all eligible voters should have the ability to register and vote easily in fair, periodic elections; each voter’s vote should carry equal weight; free speech, a free press, and free expression should assure voters reliable access to accurate information to enhance their capacity for reasoned voting; the winners of fair elections should be recognized and able to take office peacefully; and political power should be fairly distributed across groups in society, with particular protection for those groups who have faced historical discrimination in voting and representation.

Share this:

President Trump Issues Dangerous Executive Order That Would Shift to Presidency More Power Over the Conduct of Federal Elections and Potentially Disenfranchise Millions of Voters

election administration, Election Assistance Commission, Election Meltdown, election subversion risk, Elections Clause, The Voting Wars

I am still making my way through this new Trump executive order on election administration (helpfully posted by Chris Geidner). There is a lot in here, but let me make four initial points as I still digest this.

  1. An executive power grab.This executive order, if it could survive the inevitable judicial challenge, would severely shift power over federal elections into the hands of the Presidency. We’ve talked many times in the past about how limited the President’s power is over federal elections: power is mostly in the hands of states (and substate units like counties), with Congress setting certain rules for the conduct of elections (such as through the National Voter Registration Act of 1993). After the disputed 2000 election, when Congress passed HAVA, it set up an independent bipartisan agency called the U.S. Election Assistance Commission to do certain things like certifying voting equipment and doling out funds to states for voting tech upgrades. Trump’s order in a number of places purports to direct the EAC to do certain things. He doesn’t have that power, unless the courts accept some aggressive version of the unitary executive theory that’s been percolating in other cases. If a President can control the EAC, it could direct the agency to do all kinds of things that could benefit the President’s party. It would flout the bipartisan, balanced approached of the EAC.
  2. Disenfranchising millions of voters. Right now, under the NVRA, any eligible voter can register to vote in any state using a “federal form,” sometimes called a postcard form, that requires the information Congress deemed sufficient to establish eligibility, including citizenship, for voting. The EO would direct the EAC to change the federal form to require documentary proof of citizenship for voting. This would prevent only a tiny amount of noncitizen voter registration but stop millions of eligible voters, who do not have easy access to documents such as passports from registering to vote. Just look at the studies that have been done about the effects of the SAVE Act, currently being considered by Congress, that would do similar things. The aim here is voter suppression pure and simple. Even if the EAC has the power to change this form, the question is whether the President would have the power to order it.
  3. Ending the receipt of ballot after election day. The EO would direct the DOJ to take action such as suing states like California to prevent them from accepting ballots received after election day in federal elections. It would also prevent the EAC from giving states that accept later arriving (but timely mailed) ballots any federal money for voting upgrades. It is based upon a bonkers theory about how to understand federal law involving a uniform election day (a bonkers theory that unfortunately has been accepted by the Fifth Circuit). The EO would try to take the Fifth Circuit opinion nationwide, and have the President order the EAC to do it.
  4. The order would let DOGE/DHS subpoena voting records, in an effort to prove supposed voter registration fraud. DOGE certainly has no power to kick people off rolls. But they could make a lot of noise trying to claim they’ve found fraud when they find that voter registration rolls are not being kept up to date. There was tremendous pushback during the first Trump administration when the Pence-Kobach commission tried to get such records, including pushback from conservative Republican election administrators in the states. We will see what happens this time. (I write about this in my 2020 book, Election Meltdown.)
Share this:

March 31 Safeguarding Democracy Project Webinar: “Combatting False Election Information: Lessons from 2024 and a Look to the Future”

cheap speech, election subversion risk

Looking forward to this (free registration required):

Monday, March 31, 12:15pm-1:15pm PT, Webinar
Alice Marwick, Director of Research, Data & Society, UNC Chapel Hill,
 Kate Starbird, University of Washington, and J
oshua Tucker, NYU.
Richard L. Hasen, moderator (Director, Safeguarding Democracy Project, UCLA)
 
Share this:

“Colorado calls DOJ interest in Tina Peters’ case a ‘grotesque attempt to weaponize the rule of law”

chicanery, election subversion risk

Colorado Public Radio:

Colorado is asking a federal judge in Denver to reject the U.S. Justice Department’s statement of interest in the case of former Mesa County Clerk Tina Peters. In its filing, the state writes that the DOJ intervention has no legitimate basis and is a “grotesque attempt to weaponize the rule of law.”

Colorado Attorney General Phil Weiser submitted the filing Tuesday in response to the DOJ’s statement of interest.

“The United States cites not a single fact to support its baseless allegations that there are any reasonable concerns about Ms. Peters’ prosecution or sentence, or that the prosecution was politically motivated,” writes Weiser. 

In October Peters was sentenced to nine years incarceration tied to her efforts to help a man gain unauthorized access to Mesa County’s Dominion voting machines in 2021. She and others were hunting for evidence that the machines had manipulated votes, something their efforts failed to find.

The Justice Department said it plans to evaluate the state prosecution of Peters, citing an executive order from President Trump titled “Ending the Weaponization of The Federal Government.” It will focus on whether the case was “oriented more toward inflicting political pain than toward pursuing actual justice or legitimate governmental objectives.”

Peters, who is currently incarcerated at the Larimer County jail, is asking the federal court to release her on bond while she appeals her state case. In the Tuesday filing, Weiser said Peters was denied bail because at trial she “demonstrated repeatedly that she believed she was above the law.”…

Share this: