Monthly Archives: December 2021

Federal District Court, Reconsidering Earlier Order, Dismisses Complaint that FEC Failed to Go After Jeb Bush for Illegally Coordinating with His Super PAC

The court has held that the Campaign Legal Center and Democracy 21 did not have standing to bring the complaint.

The court’s earlier opinion explained the stakes:

While Jeb Bush’s unsuccessful 2016 presidential campaign may seem like a footnote in political history given all that has transpired since, it continues to attract the attention of organizations dedicated to exposing violations of federal campaign finance laws. Election junkies will recall that before the former Florida governor formally launched his candidacy in the summer of 2015, the Right to Rise super PAC, which directly supported his run, had already amassed approximately $90 million in donations. The accumulation of such a large war chest, coupled with Mr. Bush’s fundraising activities and travels to early primary states in advance of his official announcement, raised the eyebrows of watchdog groups Campaign Legal Center and Democracy 21. Suspecting that the Bush campaign and Right to Rise were improperly coordinating their efforts and thereby violating applicable contribution limits and disclosure requirements, the groups filed administrative complaints with the Federal Election Commission (“FEC”). But the complaints languished without action for nearly five years. Undaunted, the groups sued the FEC in this Court to compel the agency to investigate the asserted violations

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In Ohio and North Carolina, Children of Political Leaders Sit on State Supreme Court Deciding on Legality of Latest Redistricting Plans Challenged as Gerrymanders

In North Carolina, Justice Phil Berger, Jr. will decide himself whether he can rule on lawsuits against his dad, a leading Republican state senator.

In Ohio, Justice Pat DeWine “has chosen not to recuse himself. DeWine says he’ll hear arguments in a trio of lawsuits against the Ohio Redistricting Commission. His father, Gov. Mike DeWine, is a member.”

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“Georgia redistricting signed into law and lawsuits quickly follow”


Gov. Brian Kemp signed new Georgia political maps into law Thursday, finalizing Republican efforts to solidify their majorities in a rapidly changing state as opponents immediately filed three court challenges.

The once-a-decade redistricting creates boundaries that give Republicans an opportunity to gain a seat in Congress after next year’s elections. The new congressional map contains nine districts that lean Republican and five districts with mostly Democratic voters.

While there was never a doubt that Kemp would sign the redistricting bills, he waited over a month since they passed the General Assembly. The delay stalled legal action until the new maps were written into state law.

The federal lawsuits allege that both congressional and state maps are racially discriminatory because they reduce the voting strength of people of color who tend to support Democrats. Georgia’s population has increased by 1 million since 2010, fueled entirely by people of color as the number of white residents declined.

“Notwithstanding this explosive growth, politicians have failed to draw maps that give many of these new Black voters new opportunities to elect candidates of their choice,” said Sean Young, legal director for the ACLU of Georgia. “Rather than a new chapter, politicians have stuck with the same discriminatory playbook.”

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AJC Two-Part Deep Dive: “Inside the campaign to undermine Georgia’s election”

Part 1 and Part 2.

Editors Note: “Between the Nov. 3 presidential election and Jan. 6, Georgia was at the center of the biggest election dispute of modern American history. AJC reporters worked day and night for months to capture the election results and multiple recounts, allegations of fraud, investigations, legislative hearings, lawsuits, protests, rallies, press conferences. But it was not until significant time passed that the big picture of what happened began to emerge. And it is still emerging.”

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“Mitch McConnell’s un-conservative plea to the Supreme Court”

Ruth Marcus from the Washington Post about an amicus brief filed in the Supreme Court in a pending campaign-finance case:

The brief comes in a case involving Sen. Ted Cruz (R-Tex.), challenging an obscure provision of federal election law that bars candidates who lend their campaigns funds to get elected from raising more than $250,000 after the election to pay themselves back — the theory being that post-election fundraising is less about engaging in political speech and more about currying political favor….

The case, to be argued Jan. 19, offers a particularly vivid illustration of the conservative mania to undo even the most inoffensive campaign finance restrictions. But the McConnell brief, authored by former Trump White House counsel Donald McGahn and former Trump administration solicitor general Noel Francisco, is notable for a different and more alarming reason: There is, it seems, no argument too extreme for this crowd in their effort to reshape the law to their liking.

They urge the court to use this case not simply to strike down the loan repayment provision but also to junk what is left of the 2002 Bipartisan Campaign Reform Act (BCRA), also known as McCain-Feingold. Encouraging the court to engage in what amounts to judicial euthanasia, the brief asserts that the act has been so disfigured over the years that it should be put out of its misery.

If you think this is exaggeration, read on. “This Court’s decisions over the past decade have rendered BCRA the Humpty Dumpty of campaign-finance law, a patchwork of provisions that Congress never would have approved standing alone and that can never be put back together again,” the brief asserts. “There is no reason to let BCRA limp along, no need for further piecemeal surgery by this Court: the Court should strike the entire statute.”

It cannot be stressed enough: This is not a normal legal argument. It’s certainly not a conservative one. The Constitution provides that courts are to rule on the cases or controversies before them. Courts aren’t supposed to lunge out for issues that aren’t presented — in this case, to decide, as McConnell urges, “It is time to put BCRA out to pasture.”…

I doubt that the court, even this court, will take up McConnell’s invitation. But it’s telling that the minority leader, self-described “respected senior statesman” and supposed friend of the court, would have the gall to issue it.

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“The New Pro-Majoritarian Powers”

I wrote this short essay for the California Law Review in response to Pam Karlan’s Jorde Lecture, “The New Countermajoritarian Difficulty.” The abstract is below. Also check out the responses by Franita Tolson and Will Baude.

In her Jorde Lecture, Pam Karlan paints a grim picture of American democracy under siege. Together, the malapportioned Senate, the obsolete Electoral College, rampant voter suppression and gerrymandering, and a Supreme Court happy to greenlight these practices threaten the very notion of majority rule. I share Karlan’s bleak assessment. I’m also skeptical that conventional tools—judicial decisions and congressional statutes—will solve our current problems. So in this response, I explore a pair of less familiar but possibly more potent alternatives: the authority of each chamber of Congress to judge its members’ elections, and presidential enforcement of the Guarantee Clause. These powers are explicitly delineated by the Constitution. They can’t be stymied by either the Senate’s filibuster or the Court’s hostility. And they hold enormous democratic potential, especially if channeled through the procedures I outline.

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“Convicted former top KY Democrat makes a case for U.S. Supreme Court consideration”

A month after he reported to prison, prominent Kentucky businessman and former Kentucky Democratic Party chief Jerry Lundergan has asked the U.S. Supreme Court to consider overturning his conviction for illegally funneling $200,000 to his daughter’s political campaign in 2014.

Lundergan petitioned the nation’s top court to review records from the criminal case that he lost in the U.S. 6th Circuit Court of Appeals. The petition states that the federal ban on corporate contributions is unconstitutional when applied to contributions from a close family member, as Lundergan gave the money to his daughter Alison Lundergan Grimes in her 2014 challenge against Sen. Mitch McConnell. Grimes, a Democrat, was a two-term secretary of state serving from 2012 to 2020…

Rick Hasen, professor and Co-Director of the Fair Elections and Free Speech Center at the University of California, Irvine, wrote that it could justify an erosion of the federal ban on corporate contributions.

He added that Supreme Court justices with a distaste for regulation could jump at the opportunity. “It presents a specific set of sympathetic facts (here, the corporation is closely held, and the money went from the corporation controlled by the father to the candidate daughter) to make a much larger hole in campaign finance laws (to blow up the contribution limits applicable to corporations generally),” Hasen wrote.

“This is catnip for some of the more anti-regulatory justices.” He also compared elements of the case to that of the landmark Citizens United, a Supreme Court decision that greatly weakened federal limits on campaign spending.

Josh Douglas, an election law professor at the University of Kentucky College of Law, said that he thought there was a “pretty good chance” the court would take it up. “While predicting what the Court will do is never an exact science, I think there’s a pretty good chance the Court takes the case,” Douglas wrote. “And if they do and overturn the conviction, it could be a narrow opinion that only applies to closely held corporations or a broader one that guts contribution limitations. Either way it would be a further step in deregulating campaign finance.”

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“Ungerrymandered: Michigan’s Maps, Independently Drawn, Set Up Fair Fight”


One of the country’s most gerrymandered political maps has suddenly been replaced by one of the fairest.

A decade after Michigan Republicans gave themselves seemingly impregnable majorities in the state Legislature by drawing districts that heavily favored their party, a newly created independent commission approved maps late Tuesday that create districts so competitive that Democrats have a fighting chance of recapturing the State Senate for the first time since 1984.

The work of the new commission, which includes Democrats, Republicans and independents and was established through a citizen ballot initiative, stands in sharp contrast to the type of hyperpartisan extreme gerrymandering that has swept much of the country, exacerbating political polarization — and it may highlight a potential path to undoing such gerrymandering.

With lawmakers excluded from the mapmaking process, Michigan’s new districts will much more closely reflect the overall partisan makeup of the hotly contested battleground state.

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“‘They know where Black voters live’: Challengers say ‘race blind’ redistricting maps are anything but”


In states like Texas and North Carolina, Republican lawmakers in charge of redrawing the political maps for the next decade say that the new plans are “race blind.” Their opponents in court say that the claim is implausible and one that, in some situations, is at odds with the Voting Rights Act.

Several lawsuits, including from the Justice Department, allege that the maps drawn after the 2020 census discriminate against voters of color.

Between a 2013 Supreme Court decision that scaled back the federal government’s role in monitoring redistricting and a 2019 ruling that said partisan gerrymanders could not be challenged in federal court, voting rights advocates have been left with fewer tools to address what they say are unfair and illegal redistricting plans.

Meanwhile, lawmakers in the states where the redistricting legal fights have been most pitched have adopted an approach that claims that racial data played no role as they drew the maps for the next 10 years. Legislators say they’re avoiding the use of race data after decades of litigation where they’ve been accused of unconstitutionally relying on race to gerrymander.

“I don’t view this as a serious legal defense, but more of a PR defense,” said Thomas Saenz, the president and general counsel of Mexican American Legal Defense and Educational Fund, which is suing Texas lawmakers over their new maps.

Challengers to the maps say that such an assertion of “race blind” maps is dubious as well as a betrayal of states’ obligations under the Voting Rights Act, which prohibits racial discrimination in redistricting. The law requires that in some circumstances, map-makers must draw plans in a way that creates minority-majority districts where voters can elect the candidates of their choice. In lawsuits alleging a failure to comply with the law, states like Texas have been accused of drawing maps that instead dilute the votes of communities of color.

Legislators may be trying to “immunize” themselves from most of the claims that are used in court to strike down redistricting maps, according to Nate Persily, a Stanford Law School professor and redistricting expert.’

“By saying race was not in the minds of the people who drew the lines, you potentially get out of those constitutional causes action that you are intentionally diluting the vote of racial minorities or that race was the predominant factor in the construction of a district,” Persily told CNN, adding that such an approach doesn’t shield map-drawers from cases alleging Voting Rights Act violations.

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Must-read AP: “‘Slow-motion insurrection’: How GOP seizes election power”

Nicholas Riccardi for AP:

In the weeks leading up to the deadly insurrection at the U.S. Capitol on Jan. 6, a handful of Americans — well-known politicians, obscure local bureaucrats — stood up to block then-President Donald Trump’s unprecedented attempt to overturn a free and fair vote of the American people.

In the year since, Trump-aligned Republicans have worked to clear the path for next time.

In battleground states and beyond, Republicans are taking hold of the once-overlooked machinery of elections. While the effort is incomplete and uneven, outside experts on democracy and Democrats are sounding alarms, warning that the United States is witnessing a “slow-motion insurrection” with a better chance of success than Trump’s failed power grab last year.

They point to a mounting list of evidence: Several candidates who deny Trump’s loss are running for offices that could have a key role in the election of the next president in 2024. In Michigan, the Republican Party is restocking members of obscure local boards that could block approval of an election. In Wisconsin and Pennsylvania, the GOP-controlled legislatures are backing open-ended “reviews” of the 2020 election, modeled on a deeply flawed look-back in ArizonaThe efforts are poised to fuel disinformation and anger about the 2020 results for years to come.

All this comes as the Republican Party has become more aligned behind Trump, who has made denial of the 2020 results a litmus test for his support. Trump has praised the Jan. 6 rioters and backed primaries aimed at purging lawmakers who have crossed him. Sixteen GOP governors have signed laws making it more difficult to vote. An Associated Press-NORC Center for Public Affairs Research poll showed that two-thirds of Republicans do not believe Democrat Joe Biden was legitimately elected as president.

The result, experts say, is that another baseless challenge to an election has become more likely, not less.

“It’s not clear that the Republican Party is willing to accept defeat anymore,” said Steven Levitsky, a Harvard political scientist and co-author of the book “How Democracies Die.” “The party itself has become an anti-democratic force.”…

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“Why So Many Democracies Are Floundering”

This is my latest NYT essay. It reflects ideas in this article, which is still a work-in-progress. An excerpt from today’s essay:

We pay too little attention to delivering effective government as a critical democratic value. We are familiar with the threats posed by democratic backsliding and the rise of illiberal forces in several democracies, including the United States. But the most pervasive and perhaps deepest challenge facing virtually all Western democracies today is the political fragmentation of democratic politics.

Political fragmentation is the dispersion of political power into so many different hands and centers of power that it becomes difficult for democratic governments to function effectively….

The struggle of the Biden administration to deliver on its policy agenda offers a good example of the political fragmentation of politics taking place throughout Western democracies. It takes different forms in the multiparty systems of Europe and the two-party system of the United States. The European democracies are experiencing the unraveling of the traditionally dominant center-left and center-right major parties and coalitions that have governed since World War II. Support for these parties has splintered into new parties of the right and left, along with others with less-easily defined ideological elements. From 2015 to 2017, over 30 new political parties entered European parliaments. Across European democracies, the percentage of people who identify strongly with a political party or are members of one has declined precipitously.

The effects on the ability to govern have been dramatic. In Germany, the stable anchor of Europe since the 1950s, the two major parties regularly used to receive over 90 percent of the vote combined; in this fall’s elections, that plummeted to less than 50 percent. Support has hemorrhaged to green, anti-immigrant, free-market and other parties. After its 2017 elections, with support fragmented among many parties, it took Germany six months to cobble together a governing coalition, the longest time in the country’s history. The Netherlands, after its 2017 elections, needed a record 225 days to form a government….

Digital pop-up parties, including anti-party parties, arise out of nowhere and radically disrupt politics, as the Brexit Party did in Britain and the Five Star Movement did in Italy.

The same forces driving fragmentation in other democracies are also roiling the United States, though our election structures make effective third parties highly unlikely. Here the forces of fragmentation get channeled within the two major parties….

Large structural forces have driven the fragmentation of politics throughout the West. On the economic front, the forces include globalization’s contribution to the stagnation of middle- and working-class incomes, rising inequality and outrage over the 2008 financial crisis. On the cultural side: conflicts over immigration, nationalism and other issues.

Since the New Deal in the United States and World War II in Europe, the parties of the left had represented less affluent, less educated voters. Now those voters are becoming the base of parties on the right, with more affluent, more educated voters shifting to parties on the left. Major parties are struggling to figure out how to patch together winning coalitions in the midst of this shattering transformation.

The communications revolution is also a major force generating the disabling fragmentation of politics. Across Europe, it has given rise to loosely organized, leaderless protest movements that disrupt politics and give birth to other parties — but make effective government harder to achieve.

In the United States, the new communications era has enabled the rise of free-agent politicians. A Congress with more free agents is more difficult to govern. Even in their first years in office, individual members of Congress (like Alexandria Ocasio-Cortez or Ted Cruz) no longer need to work their way up through the party or serve on major committees to attract national visibility and influence.

Through cable television and social media, they can find and construct their own national constituencies. Through internet fund-raising (particularly small donations), politicians (particularly from the extremes) can become effective fund-raising machines on their own. In this era, party leaders lack the leverage they once had to force party members to accept the party line. That is why speakers of the House resign or reschedule votes on which they cannot deliver.

The political fragmentation that now characterizes nearly all Western democracies reflects deep dissatisfaction with the ability of traditional parties and governments to deliver effective policies. Yet perversely, this fragmentation makes it all the more difficult for governments to do so. Mr. Biden is right: Democracies must figure out how to overcome the forces of fragmentation to show they once again can deliver effective government.

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