Monthly Archives: June 2019

“Trump Consultant Is Trolling Democrats With Biden Site That Isn’t Biden’s”


From top to bottom, the website,, breezily mocks the candidate in terms that would warm the heart of any Bernie Sanders supporter: There are GIFs of Mr. Biden touching women and girls, and blurbs about his less-than-liberal policy positions, including his opposition to court-ordered busing in the 1970s and his support for the Iraq war. Pull quotes highlight some of his more famous verbal gaffes, like his description of his future boss, Barack Obama, as “articulate and bright and clean.” The introductory text declares, “Uncle Joe is back and ready to take a hands-on approach to America’s problems!”

All the site says about its creator is buried in the fine print at the bottom of the page. The site, it says, is a political parody built and paid for “BY AN American citizen FOR American citizens,” and not the work of any campaign or political action committee.

There is indeed an American behind the website — that much is unambiguously true. But he is very much a political player, and a Republican one at that. His name is Patrick Mauldin, and he makes videos and other digital content for President Trump’s re-election campaign. Together with his brother Ryan, Mr. Mauldin also runs Vici Media Group, a Republican political consulting firm in Austin whose website opens with the line “We Kick” followed by the image of a donkey — the Democratic Party symbol often known by another, three-letter, name.

The Biden website was intended to help Democrats “face facts,” Mr. Mauldin said in an interview. He kept his name off it because “people tend to dismiss things that they don’t like, especially if it comes from the opposite side,” he said.
Yet in anonymously trying to exploit the fissures within the Democratic ranks — fissures that ran through this past week’s debates — Mr. Mauldin’s website hews far closer to the disinformation spread by Russian trolls in 2016 than typical political messaging. With nothing to indicate its creator’s motives or employer, the website offers a preview of what election experts and national security officials say Americans can expect to be bombarded with for the next year and a half: anonymous and hard-to-trace digital messaging spread by sophisticated political operatives whose aim is to sow discord through deceit. Trolling, that is, as a political strategy.

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The Reverse Stormy Daniels: Rep. Duncan Hunter Claims Money Spent on Affairs Mixed Business and Pleasure and Were Campaign Related

Brad Heath:

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President Jimmy Carter, Without Adequate Evidence, Troublingly Claims Russian Interference Changed 2016 Election Outcome to Favor Trump, Calls Trump “Illegitimate President”


Former President Jimmy Carter questioned the legitimacy of Donald Trump’s presidency on Thursday, saying he would likely not be in the White House if the Russians did not interfere in the 2016 presidential election.

“I think a full investigation would show that Trump didn’t actually win the election in 2016. He lost the election, and he was put into office because the Russians interfered on his behalf,” the former president, who served between 1977 and 1981, said at a panel hosted by the Carter Center in Leesburg, Va.

Pressed by moderator and historian Jon Meacham on whether he believes Trump is an “illegitimate president,” Carter stared, and then said smiling, “Basically, what I said, I can’t retract.” Carter’s remark drew laughs from the audience and Meacham.

The Mueller report and other evidence indisputably shows that the Russian government and its operatives interfered in the 2016 U.S. election and wanted to swing the election to Trump. It also showed that the Trump Administration welcomed the Russians’ help.

It did not, however, show, that the Russian activity was decisive (whether we are talking about the hacking and releasing of DNC/Podesta emails, the social media campaign, and the hacking into state voter registration databases).

It is not clear that a “full investigation” would show any more than this. The way President Carter phrased this, especially as someone who has worked so hard and constructively around the world for election integrity, is very troublesome.

AND: Here‘s my testimony before the House Judiciary Committee on Volume 1 of the Mueller Report and the potential for foreign interference in 2020.

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Amicus Brief Cites Evidence that Super PACs Create the Appearance of Quid Pro Quo Corruption in DC Circuit Case Seeking to Overturn SpeechNow (The Case That Gave Us Super PACs)

From the Robertson, Bergstrand, and Winkelman brief in Lieu v. FEC:

Plaintiffs-Appellants have asked the Court to reconsider its decision in v. Federal Election Commission, 599 F.3d 686 (D.C. Cir. 2010), which gave rise to so-called Super PACs and similar independent expenditure organizations. The Court in SpeechNow recognized that the “appearance of corruption” could justify campaign finance regulation under Supreme Court precedent. Id. at 692. But the Court went on to state that, “[i]n light of the [Supreme] Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures”—like SuperPACs—“also cannot corrupt or create the appearance of corruption.” Id. at 694. Amici’s empirical research strongly suggests otherwise. In two studies with complementary methodologies, Amici found that contributions to organizations that make only independent expenditures may in fact create the appearance of quid pro quo corruption. In light of this empirical research, the Court should grant initial hearing en banc and reconsider its decision in Speechnow, which rests on an incorrect premise.

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Pa. Republicans Will Agree to Fund Voting Machine Upgrade with a Paper Trail Only If Law Also Eliminates Straight Ticket Voting Favored by Democrats [CORRECTED: It does not Appear the Bill Has Been Signed]

(Bumped to the top with correction)

Holding election integrity hostage to a political change.

CORRECTION: An earlier version of this post said the governor has signed the bill. This appears to be incorrect, or at least premature. I regret the error.

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Michael Solimine: State Courts as Forums for Federal Partisan Gerrymandering Claims after Common Cause v. Rucho (Rucho Symposium)

The following is a guest post from Michael Solimine, part of the symposium on Partisan Gerrymandering after Rucho:

A 5-4 majority of the United States Supreme Court in Common Cause v. Rucho held that challenges to partisan gerrymandering are “political questions” and are not justiciable in federal courts. The majority added that other avenues of relief were available for critics of gerrymandering, including Congressional action, state redistricting commissions, and suits in state courts under state law.

What the majority (or the dissent) didn’t mention was another option, which would be bringing the same federal claims in Rucho, under the First and Fourteenth Amendments, in state court. There has long been a presumption that state courts can[1] and indeed with few exceptions must[2] hear suits based on 42 U.S.C. § 1983, upon which such suits would be predicated. Federal claims could also be added to a suit premised on state constitutional provisions. State courts could then reach the merits, which federal courts can’t after Rucho.

But some have questioned this option, suggesting that the political question doctrine would also bar such suits in state courts.[3] This argument is not convincing. The political question doctrine as formulated by the Supreme Court has long referred to the inability of federal courts to formulate manageable criteria to decide cases, and that is frequently reiterated in Rucho. It’s true that most states use a form of the doctrine in their own courts, and often cite Baker v. Carr and other federal decisions in doing so.[4] But most agree that there is no mandate that state courts do so, and a state court could conclude that the doctrine doesn’t bar this particular suit.[5] It’s also true that whether state courts upheld or denied the federal claims, the losing party could seek review (absent adequate and independent ground problems) on a writ of certiorari in the Supreme Court. This would create the awkward circumstance of the Supreme Court being asked to decide a federal claim it previously held was barred by the political question doctrine. Still, the Court could simply hold that the doctrine applies to its review of state court decisions as well.

This series of events took place after Colegrove v. Green, where the Court held that one-person-one-vote suits were barred in federal court under the doctrine, and before Baker v. Carr. Plaintiffs brought such a suit in Tennessee state court, invoking both federal and state law. The Tennessee Supreme Court eventually ruled against plaintiffs on all claims, and their appeal to the U.S. Supreme Court was dismissed. The latter Court cited both adequate state law grounds, and Colegrove.[6]

Bucking the conventional wisdom, Tara Grove[7] and John Harrison[8] have recently argued that state courts are required to follow the political question doctrine. Their arguments don’t convince me. While the Supreme Court has not directly addressed the issue, it has constantly referred to the doctrine as a bar to federal court litigation, up to and including Rucho. There are powerful institutional arguments for state courts not being mandated to follow the doctrine, including that the Art. III requirements don’t apply to state courts.[9]  

One potential barrier to the state forum would be the defendant’s option of removing a federal question case to federal court. But that option seems foreclosed by the language of the removal statutes, which state that only cases within the “original jurisdiction” of federal courts can be removed,[10] and Rucho orders that the case be “dismiss[ed] for lack of jurisdiction.”

Plaintiffs in Rucho and similar cases no doubt prefer to be before life-tenured Art.III federal judges, and not before usually-elected state judges. But if that’s not possible, state courts should be an option, as it is with many other federal civil claims. If some state courts uphold such claims, and the Supreme Court declines review, there would potentially be a lack of uniformity of federal law, but the consequences would be confined to one or a small number of states, and that’s an acceptable price to pay for keeping federal courts out of the political thicket.

[1] Tafflin v. Levitt, 493 U.S. 455 (1990).

[2] Haywood v. Drown, 556 U.S. 729 (2009).

[3] Will Baude, Can Federal Partisan Gerrymandering Claims Be Brought in State Court?, Volokh Conspiracy, June 28, 2019,

[4] Nat Stern, Don’t Answer That: Revisiting the Political Question Doctrine in State Courts, 21 U. Pa. J. Const. L. 153 (2018).  

[5] League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa.), cert. denied, 139 S. Ct. 445 (2018).

[6] Kidd v. McCanless, 292 S.W.2d 40 (Tenn.), appeal dismissed, 352 U.S. 929 (1956)(per curiam).

[7] Tara Leigh Grove, The Lost History of the Political Question Doctrine, 90 N.Y.U. L. Rev. 1908 (2015).

[8] John Harrison, The Political Question Doctrines, 67 Am. U. L. Rev. 457 (2017).

[9] Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833 (2001).

[10] 28 U.S.C. § 1441(a).

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Can federal partisan gerrymandering claims still be brought in state court?

Will Baude has an intriguing post suggesting that, even after Rucho, federal partisan gerrymandering claims can still be brought in state court. The rationale is that federal jurisdictional doctrines like standing, mootness, and justiciability don’t apply in state court. So a state court could reason: (1) The Supreme Court unanimously believes that extreme partisan gerrymandering is unconstitutional. (2) The Supreme Court also believes that partisan gerrymandering claims are nonjusticiable. (3) However, we believe that such claims are justiciable. (4) So we’re going to adjudicate them.

I’m curious whether this move would be attractive to the litigants currently pursuing (or considering pursuing) state constitutional partisan gerrymandering claims. On the one hand, these claims are only being brought in forums thought to be receptive. If state courts are already expected to be sympathetic to state claims, it might be pointless to add a federal claim to the mix.

On the other hand, after Rucho, any judgment a state court reaches on a federal partisan gerrymandering claim would seem to be nonreviewable by the Supreme Court. The Court couldn’t tell the state court to apply a federal jurisdictional doctrine that the state court rejects. And the Court couldn’t reach the merits of a federal partisan gerrymandering claim. As long as Rucho remains good law, then, it appears possible for state courts to generate a body of shadow precedent about partisan gerrymandering under the federal Constitution. These rulings could never be recognized by federal courts. But they would nevertheless have legal force. And they would serve as powerful evidence that Rucho is wrong: that courts are indeed capable of deciding federal partisan gerrymandering claims consistently and non-arbitrarily.

Two final points: First, a defendant against whom a federal partisan gerrymandering claim was brought couldn’t remove the case to federal court. That’s because, per Rucho, no federal court would have jurisdiction over the claim. And second, if a state court reached its decision on federal and state grounds, the decision’s nonreviewability by the Supreme Court would be even clearer. In that case, there would be an adequate and independent state law basis for the decision.

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What Happened to Whitford?

In its decision last year in Whitford, the Court provided all kinds of clues about what a successful partisan gerrymandering claim would look like. It would be district-specific, not plan-wide. That way it would be congruent with the standing inquiry recognized by the Court: whether “the particular composition of the voter’s own district . . . causes his vote—having been packed or cracked—to carry less weight.” Discriminatory intent would also be an element of the claim. Evidence of such intent “may well be pertinent with respect to any ultimate determination whether the plaintiffs may prevail.” And alternative maps would be central to the analysis. They would show whether “another, hypothetical district” could be drawn that “unpacked or uncracked” a given plaintiff, or, conversely, if voters were “‘naturally’ packed due to their geographic concentration.”

Chief Justice Roberts was the author of both Whitford and Rucho. So one might have expected him to address these passages at some length—to explain why the standard the plaintiffs proposed in Rucho was nonjusticiable even though it was exactly what the Court contemplated in Whitford. But one would be wrong. Roberts never explained how a district-specific standing inquiry could be manageable while a district-specific merits analysis is not. Nor did he explain how evidence of discriminatory intent could be “pertinent” in Whitford but irrelevant in Rucho. And nor did he explain how the Court could request alternative maps in Whitford but then dismiss them when they were provided in Rucho. Indeed, Roberts never so much as mentioned the key passages from Whitford. It’s as if they never existed, as if they vanished into the ether at some point over the last year.

We can make a good guess when this doctrinal amnesia began: June 27, 2018, the day Justice Kennedy retired from the Court. (Or, alternatively, October 6, 2018, the day Justice Kavanaugh was sworn in as his replacement.) It appears that, to keep Kennedy’s vote in Whitford, Roberts agreed to include all sorts of suggestions that future partisan gerrymandering claims could be successful if they only included the right arguments and evidence. It also appears that these intimations came with an expiration date: Kennedy’s tenure on the Court. As soon as Kennedy was no longer there, the hints were immediately forgotten. So when the Rucho plaintiffs did everything the Whitford Court asked for, their efforts “echo[ed] into a void,” to borrow one of Roberts’s phrases. The Rucho plaintiffs had relied on the Whitford Court’s word. But that word was no longer good.

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“When It Comes to the Census, the Damage Among Immigrants Is Already Done”


ut even though some Democrats may perceive the court’s decision as a victory, the damage, many experts say, has already been done. The fear engendered by the administration’s immigration policies will make the job of census workers difficult in primarily immigrant neighborhoods, regardless of whether or not the citizenship question is added.

In predominantly Latino neighborhoods of Los Angeles this week, many people seemed largely unaware of the political machinations in Washington over the citizenship question, and many had never heard of the census. They were, however, concerned about the impending arrival of Immigration and Customs Enforcement agents in the neighborhood for planned raids.

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“Florida Limits Ex-Felon Voting, Prompting a Lawsuit and Cries of ‘Poll Tax’”


Gov. Ron DeSantis of Florida signed into law on Friday significant restrictions to the recently restored voting rights of people with felony convictions, prompting the American Civil Liberties Union to sue the state hours later.

The new law requires people with serious criminal histories to fully pay back fines and fees to the courts before they become eligible to vote. In some cases, those costs amount to thousands of dollars.

The A.C.L.U. argued that the new limits would unconstitutionally price some people out of the ballot box and undermine the intent of Florida voters, who last November approved a measure to enfranchise up to 1.5 million former felons.

“There’s no rational basis for treating somebody who can afford to pay fees any differently than treating anybody who can’t afford to pay them,” said Julie Ebenstein, a senior staff attorney with the A.C.L.U.’s Voting Rights Project. “That’s just distinguishing people’s right to vote based on their wealth.”…

Still, the timing of the governor’s action, announced after 6 p.m. on a Friday, seemed intended to draw little attention from Florida voters, more of whom voted for Amendment 4 than for him. Not long afterward, the A.C.L.U. filed its lawsuit in Federal District Court for the Northern District of Florida, joined by the A.C.L.U. of Florida, the N.A.A.C.P. Legal Defense and Educational Fund and the Brennan Center for Justice at New York University.

Here is the ACLU complaint and here is the CLC complaint.

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