Monthly Archives: April 2022

Did Ending the Filibuster of Judicial Appointments Alter the Behavior of Lower-Court Judges?

Interesting speculation about that in this Axios story:

What they’re saying: J. Michael Luttig, a former U.S. Court of Appeals judge appointed by the late President George H.W. Bush, told Axios: “Ideally, federal judges would make few, if any, extrajudicial comments in their opinions — and none in their public speeches and remarks.”

  • “The former is exceedingly difficult to honor in practice over a long period of service on the bench, but every attempt should be made,” he said.

Sarah Isgur, a former Trump administration Justice Department senior official and, now, co-host of the legal podcast Advisory Opinions, said the partisan split in the Senate is propelling the change in judicial temperament.

  • “Once the filibuster was gone for the lower-court judges, what you see is that people no longer need to get votes from the opposing party, but they need to be the most extreme version of their own party,” she told Axios.
  • “And, so, with some of the Trump appointed judges, there is a lot more willingness to signal to the right-flank of the party. For those who want to be Supreme Court justices, or want to be in the running for that sort of influence, they don’t need to signal to the left.”
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Confirmation of the Framer’s Decision to Create a Single-Headed Executive (ie, the President, not Presidents)

One of the most consequential, yet not fully appreciated, decisions when the Constitution was formed was the choice of a single-headed rather than plural executive branch. This was an issue much discussed at the time. Putting the power in one person’s hands raised risks, but creating a multi-headed executive branch was thought riskier, because it was too likely to lead to a diffusion of responsibility and indecisive leadership.

Perhaps this new study from the business world is an amusing source of confirmation of the decision to have a single-headed executive branch. From the WSJ:

Company co-founders often split ownership of their startup evenly. It seems fair and simple.

But starting off equal may hurt the company’s chances of getting off the ground.

New research finds that early-stage companies formed with an equal ownership split—such as 50% each for two partners or 25% each for four—were less likely to have measurable revenue or employees one year later, says Dave Noack, an assistant professor of entrepreneurship in the Goddard School of Business and Economics at Weber State University in Ogden, Utah….

Today, roughly three out of four startups decide to divide the business equally when getting started, he says. The problem, though, is that when shares are split evenly, no one founder feels they have ownership of the company and the responsibility for running it. And that often means that nobody takes charge, and the startup stalls. So, an uneven split—even if it is 51% ownership for one of two partners—offers one founder a feeling of individual ownership, and that helps them to push ahead.

“The key takeaway is that there needs to be someone on the team who ultimately takes charge,” says Dr. Noack, whose research was published in the Journal of Small Business and Enterprise Development last year….

Dr. Noack hopes the research will result in more purposeful thinking around the ownership split. Companies often want equal ownership to increase harmony and cohesion within an emerging venture but don’t account for the drawbacks, he says. “It comes down to decision making and who is ultimately going to feel the pressure on their backs to persevere,” he says.

One might be tempted to say this shows the insights that looking at “politics as markets” can sometimes provide.

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Videos of 2021-2022 Programs at the Fair Elections and Free Speech Center

I’m very proud of the programs David Kaye and I put together over the last year for UCI Law’s Fair Elections and Free Speech Center. Here are links to the videos of the events:

  1. Is the US. Constitution Up to the Task of Preserving American Democracy? (Jack Balkin, Michele Goodwin, Michael Klarman (Rick Hasen moderator))
  2. Symposium: Election Subversion: Is U.S. Democracy in Danger? (Julia Azari, Edward Foley, Mara Liasson, Bob Bauer, Guy-Uriel Charles,  Larry Diamond, Ben Ginsberg, Rick Hasen, Gretchen Helmke, Steve Levisky, Isabel Longoria, Sarah Longwell, Michael Morley, Janai Nelson, Rick Pildes, Brad Raffensperger)
  3. Disinformation in American Elections, Part I: Election Officials (Jocelyn Benson, Neal Kelley (Tammy Patrick moderator))
  4. Disinformation in American Elections, Part II: Legal Scholars (Danielle Citron, Spencer Overton, Nate Persily (Rick Hasen moderator))
  5. Disinformation in American Elections, Part III: Social Scientists (Joan Donovan, Renee DiResta, Brendan Nyhan (Pam Fessler moderator))
  6. Global Elections 1: Israel, the Netherlands and Uganda ( Tehilla Shwartz Altshuler, Lillian Nalwoga, Alice Stollmeyer, (David Kaye moderator))
  7. Global Elections 2: Germany (Sabine Frank, Falk Steiner, Natascha Strobl (Christian Mihr moderator))
  8. Global Elections 3: Hong Kong (Glacier Kwong, Jeffrey Wasserstrom (Melissa Chan moderator))
  9. What Can and Should Journalists Do to Prevent Election Subversion and Another January 6? (Bart Gellman, Jessica Huseman, Margaret Sullivan (Rick Hasen moderator))
  10. A Conversation with 2021 Nobel Prize Laureate Maria Ressa (Maria Ressa and David Kaye)
  11. UCI Law Distinguished Lecture: “Constitutional Patriotism, the Failures of Partisanship, and the Future of American Democracy” by Rep. Jamie Raskin
  12. Cheap Speech book talk (Rick Hasen and Henry Weinstein)
  13. 100% Democracy book talk (E.J. Dionne & Miles Rapoport (Sara Goodman moderator))

Thanks to all the speakers who participated in this events, the UCI Law staff that made them possible, and all who tuned in and asked questions!

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“The uproar over the Biden admin’s Disinformation Governance Board”

Aaron Blake for WaPo:

The Department of Homeland Security’s decision to announce the creation of a Disinformation Governance Board has set off a backlash on the right — even as it’s not entirely clear what the perhaps unfortunately named board will do.

Secretary Alejandro Mayorkas mentioned the creation of the board in multiple congressional hearings this week. In one, he linked it to efforts to combat misinformation from human smugglers. In another, he said it would be used to counter Russian cyber and election misinformation: “We have just established a mis- and disinformation governance board in the Department of Homeland Security to more effectively combat this threat, not only to election security but to our homeland security.”

Amid a growing anti-censorship fervor on the right, a bevy of Republicans have suggested the initiative amounts to policing speech. Elon Musk declared it “messed up.” Many on the right likened it to the “Ministry of Truth” from George Orwell’s book “1984.”

They’ve also questioned the fitness of the board’s executive director, Nina Jankowicz, who has in the past supported Democrats, praised efforts to crack down on coronavirus misinformation on social media, and expressed skepticism of the provenance of Hunter Biden’s laptop.

“Rather than police our border, Homeland Security has decided to make policing Americans’ speech its top priority,” Sen. Josh Hawley (R-Mo.) claimed…

But there remain few details on what the board will actually do. DHS hasn’t issued many specifics — including whether and how much it might monitor disinformation from “our own citizens” and whether what it would do would amount to “policing.” (The Post reached out for more information on Friday; the department previously declined the Associated Press’s request for an interview on the subject.) Despite Republicans’ expressed concern, they didn’t press Mayorkas in much detail across hearings Wednesday and Thursday. And the DHS does have a history of tackling disinformation, including during the Trump administration.

Under questioning from Democrats, Mayorkas said the board was part of an effort whose “goal is to bring the resources of the department together to address this threat,” specifically citing misinformation disseminated to Spanish speakers. In a separate hearing, he mentioned it briefly as part of efforts to combat Russian misinformation….

Somewhat similarly, the name “Disinformation Governance Board” does sound a bit ominous; it sounds less like an effort to combat disinformation than to, well, govern it. That choice of language plays into efforts to cast DHS’s initiative as something more than what the available evidence suggests.

But it would certainly be nice to know more about what precisely it is — and will do.

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“Gorsuch Call to Overturn ‘Rotten’ Cases Tested by New Appeal”

Bloomberg Law:

A case about birthright citizenship for residents of American Samoa could prompt the U.S. Supreme Court to reconsider longstanding rulings Justice Neil Gorsuch blasted as resting “on a rotten foundation.”

At issue are decisions known as the Insular Cases from the early 1900s that deprive Puerto Rico and other U.S. territories of full constitutional protections. Although the justices appear to no longer consider the decisions, which Gorsuch has previously said are based on “ugly racist stereotypes,” good law, lower federal courts continue to rely on them when dealing with U.S. territories.

The justices ruled 8-1 on April 21 in United States v. Vaello Madero that the federal government could continue to exclude Puerto Rico from a Social Security benefit program. Gorsuch joined the opinion after noting no party asked the justices to overrule the Insular Cases. Now, in a petition filed Wednesday, individuals seeking citizenship in the American Samoa case explicitly ask the court to do just that.

The American Samoa case, Fitisemanu v. United States, “is exactly the opportunity the court needs to reconsider the doctrine and overrule it,” said Columbia Law professor Christina Ponsa-Kraus.

You can find the petition at this link.

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“Revolt Brews in Michigan G.O.P. After Elevation of Trump Allies”


For Republican supporters of Donald J. Trump in Michigan, it seemed like a crowning moment: The state party chose two candidates endorsed by the former president, both outspoken preachers of 2020 election falsehoods, as its contenders for the state’s top law enforcement officer and its chief of election administration.

But instead, that move at a convention last weekend — where Republicans officially endorsed Matthew DePerno for attorney general and Kristina Karamo for secretary of state — has ruptured the Michigan Republican Party. After months of strain, it appears to finally be snapping as what remains of the old guard protests the party’s direction.

This week, Tony Daunt, a powerful figure in Michigan politics with close ties to the influential donor network of the DeVos family, resigned from the G.O.P.’s state committee in a blistering letter, calling Mr. Trump “a deranged narcissist.” Major donors to the state party indicated that they would direct their money elsewhere. And one of Mr. Trump’s most loyal defenders in the State Legislature was kicked out of the House Republican caucus.

The repudiation of the election-denying wing of the party by other Republicans in Michigan represents rare public pushback from conservatives against Mr. Trump’s attempts to force candidates across the country to support his claims of a rigged 2020 vote. That stance has become a litmus test for G.O.P. politicians up and down the ballot as Mr. Trump adds to his slate of more than 150 endorsements this election cycle.

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“G.O.P. Concocts Fake Threat: Voter Fraud by Undocumented Immigrants”


Six years after former President Donald J. Trump paved his way to the White House on nativist and xenophobic appeals to white voters, the 2,000-mile dividing line between Mexico and the United States has once again become a fixation of the Republican Party.

But the resurgence of the issue on the right has come with a new twist: Republican leaders and candidates are increasingly claiming without basis that unauthorized immigrants are gaining access to the ballot box.

Voter fraud is exceptionally rare, and allegations that widespread numbers of undocumented immigrants are voting have been repeatedly discredited. Yet that fabricated message — capitalizing on a concocted threat to advance Mr. Trump’s broader lie of stolen elections — is now finding receptive audiences in more than a dozen states across the country, including several far from the U.S.-Mexico border.

In Macomb County, Mich., where Republicans are fiercely split between those who want to investigate the 2020 election and those who want to move on, many voters at the county G.O.P. convention this month said they feared that immigrants were entering the country illegally, not just to steal jobs but also to steal votes by casting fraudulent ballots for Democrats.

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The Conservative Case for Proportional Representation

In the wake of New York’s redistricting decision this week, Washington Post columnist Henry Olsen urges Congress to reach a bipartisan agreement to end gerrymandering and offers three ways to do that. All three deserve attention, and I suspect that for something to pass Congress it would need to embrace a federalism-based approach by which states could choose from a menu of options (like Olsen’s three anti-gerrymandering alternatives) to achieve a congressionally-determined objective.

But here I want to highlight the third of Olsen’s three proposals: invoking Switzerland as “model” for how to “elect House members by proportional representation.” I can’t recall a comparably prominent conservative voice promoting so forcefully the idea of using PR in the US. Am I forgetting something similar?

As Olsen indicates, Congress could jump-start state-based experimentation with PR for congressional seats simply by repealing its statutory (not constitutionally required) single-member district requirement. Given Senator Mitch McConnnell’s aversion to imposing new congressional mandates on states even for the conduct of congressional elections, pursuit of proportional representation could be advanced by doing the opposite: removing a congressional constraint that already exists. McConnell ought to be in favor of giving states the option of using PR for their congressional delegation, if that’s what states prefer. I can imagine Ohio, after its current redistricting debacle, becoming the first state to explore this way to avoid being a national embarrassment again.

Thus, is there a deal to be had among congressional Republicans and Democrats to repeal the single-seat district requirement and give states the freedom to experiment with PR? I would expect a deal like this might be more attractive to Democrats when they consider what the Supreme Court might decide in the pending Alabama redistricting case. If the Court adopts the argument advanced by Alabama in its recently filed merits brief, it’s not going to be constitutionally permissible for Congress to enact a revised Voting Rights Act that would enable single-member districts to be drawn to enhance the relative voting power for racial minority groups (comparable to what minority voting power would exist in districts drawn without consideration of race). The only constitutionally permissible way to pursue proportional political power for minority voters would be through a race-neutral across-the-board system of proportional representation, in which minority voters would be able to elect candidates and parties of their choice in proportion to their numbers in the state’s whole electorate.

Repealing the single-member district requirement would require some measure to prevent a state, whether Alabama or any other, from simply electing all its congressional seats in at-large first-past-the-post statewide elections, which obviously would not be proportional representation and would cause severe minority vote dilution. But a new Act of Congress that permitted states to abandon single-member districts if they adopted a Swiss-style, or some other, form of statewide proportional representation for their congressional delegation? That might be the best way to protect minority voting power, as well as avoiding gerrymandering, given the current Supreme Court and the need for bipartisan compromise for anything to pass Congress.

In light of Olsen’s column, is pursuing this kind of bipartisan deal worth further exploration?

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“Florida gave voting rights to people with felony convictions. Now some face charges for voting.”

Kira Lerner:

Florida authorities arrested a Black man while he was staying in a homeless shelter and charged him with voting illegally in a case tied to Republicans’ drive to root out election fraud.

But Kelvin Bolton’s arrest raises questions about the rollout of Amendment 4, passed by Florida voters in 2018 to restore voting rights to Floridians with felony convictions. 

The case is one of the first of its kind since Florida ended the Jim Crow-era voting policy that disproportionately affected Black citizens. Bolton’s arrest shows how the constitutional amendment now is being weaponized against poor people who may not realize they are committing a crime. 

When law enforcement found 55-year-old Bolton at the homeless shelter and arrested him for illegal voting, according to court records and as first reported by Fresh Take Florida at the University of Florida, he was on early release from jail but still serving two-and-a-half years for theft and simple battery. 

Bolton, who is currently being held in the Alachua County jail on $30,000 bail, is one of 10 people recently charged in the Gainesville, Florida, area with third-degree felonies for illegal voting. Eight of the 10 are Black men.

They all registered to vote while in jail or mailed ballots from jail, but had unpaid fines and fees from prior felony convictions that barred them from voting under a 2019 law, according to the state attorney’s office. Each is facing a potential five years in prison and a $5,000 fine. 

Bolton currently owes $7,018 in unpaid court fines and fees, including $1,500 in attorney and indigent appearance fees, according to an analysis of court records.

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“With no evidence, Rebecca Kleefisch, Wisconsin candidate for governor, says 2020 election was ‘rigged'”

Milwaukee Journal-Sentinel:

Republican candidate for governor Rebecca Kleefisch is escalating her criticism of how the last presidential election was carried out in Wisconsin, calling it a “rigged” contest despite rulings and recounts confirming the outcome.

The characterization comes as a fourth candidate enters the Republican primary with the ability to pour millions into his campaign and a backstory that could appeal to the head of the party, former President Donald Trump. 

Seventeen months after the 2020 election, grievances over its outcome loom over Wisconsin’s 2022 races as Trump continues to pressure Republicans to keep alive his false claims of widespread fraud to build momentum for his expected 2024 campaign for president. 

Recounts, court rulings, state audits and a study by a prominent conservative group have confirmed President Joe Biden won Wisconsin in 2020 by nearly 21,000 votes. None of the reviews have shown fraud manipulated the outcome of the election.

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“Trump allies breach U.S. voting systems in search of 2020 fraud ‘evidence'”


Eighteen months after Donald Trump lost the White House, loyal supporters continue to falsely assert that compromised balloting machines across America robbed him of the 2020 election.

To stand up that bogus claim, some Trump die-hards are taking the law into their own hands – by attempting, with some success, to compromise the voting systems themselves.

Previously unreported surveillance video captured one such effort in August in the rural Colorado town of Kiowa. Footage obtained by Reuters through a public-records request shows Elbert County Clerk Dallas Schroeder, the county’s top election official, fiddling with cables and typing on his phone as he copied computer drives containing sensitive voting information.

Schroeder, a Republican, later testified that he was receiving instructions on how to copy the system’s data from a retired Air Force colonel and political activist bent on proving Trump lost because of fraud.

That day, Aug. 26, Schroeder made a “forensic image of everything on the election server,” according to his testimony, and later gave the cloned hard drives to two lawyers.

Schroeder is now under investigation for possible violation of election laws by the Colorado secretary of state, which has also sued him seeking the return of the data. Schroeder is defying that state demand and has refused to identify one of the lawyers who took possession of the hard drives. The other is a private attorney who works with an activist backed by Mike Lindell, the pillow mogul and election conspiracy theorist.

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Would Le Pen Be President of France if France Used Our Election System?

We use party primaries, followed by a single-round general election. Matt Yglesias speculates that, in our system, Le Pen would have won the primary among the party on the right, while Mélenchon would have won the primary among the party on the left — with Macron voters split between those two parties, given the various policy positions of these candidates. In a general election between Le Pen and Mélenchon, Le Pen would have been likely to prevail, given the distribution of votes among various parties of the left and right in the first round of the French election.

Of course, these counterfactuals are always uncertain, given that candidates, parties, and voters would alter their behavior under a different set of electoral structures. Still, it’s interesting to speculate how much these different institutional-design structures for elections influences the types of candidates who are likely to prevail.

The U.S. election structure most closely analogous to the French system is probably the Top-Two primary structure used in CA and WA.

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