Monthly Archives: May 2024

“Ohio Legislature Passes Bill Ensuring Biden’s Spot on the Ballot”


The Ohio General Assembly has passed a legislative fix that ensures President Biden will be on the state’s ballot in November, averting a crisis that had been brewing for weeks over what is typically a minor procedural issue.

The secretary of state in Ohio, a Republican, had said that he planned to exclude Mr. Biden from the ballot because the president would not be officially nominated by his party until after a state deadline for certifying presidential nominees. That had threatened the possibility that the president would not be on the ballot in all 50 states.

The General Assembly resolved the issue by passing a bill that pushes back the deadline to accommodate the date of the Democratic nominating convention. Gov. Mike DeWine, a Republican, is expected to sign the bill over the weekend, pending a legal review, according to a spokesman…

But the solution proposed in the Ohio Legislature was entangled in a separate partisan clash over foreign donations. The General Assembly adjourned last week without a fix in place, after the Ohio Senate, which is controlled by Republicans, advanced a bill that would have resolved the issue but included a partisan measure banning foreign money in state ballot initiatives. Democrats opposed that measure, and the speaker of the Ohio House did not take it up before the chamber adjourned.

Mr. DeWine then called a special legislative session to fix the problem, saying that legislators had failed “to take action on this urgent matter.” The General Assembly ultimately adopted two bills, one that fixed the ballot issue and another that banned donations in support of state ballot initiatives from foreign nationals, including immigrants with green cards.

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“Likely Trump Hush Money Appeal Could Center on New York Election Law Theory”

National Law Journal:

Erica Hashimoto, who directs the Georgetown Law Appellate Litigation Program, said Trump’s appellate lawyers could challenge the three “unlawful means” that the jury was told to consider. These three are violations of the Federal Election Campaign Act, which limits corporations’ direct contributions to candidates; the falsification of other business records; and violation of tax laws.

The jury did not have to agree on which of the three Trump employed to convict the former president.

“And so if [Trump’s attorneys] can knock out even one of those [on appeal], then I think the whole thing has to go back for a new trial,” Hashimoto said.She added that the New York Election Law has been “very rarely used” and courts have not had many opportunities to interpret it.

“There’s not a lot of case law out there on this election interference New York state law,” Hashimoto said. “And so I think that there are legal arguments surrounding that.”…

Eric Gibson, principal and chair at Post & Schell, said the prosecution’s theory is strong on that front.

The government would likely argue on appeal that the New York Legislature intended for the law against falsifying business records to be read broadly, allowing FECA violations to be considered “another crime,” he said.

“Why would the legislature limit themselves unnecessarily?” Gibson said.

“Why would it be okay for a defendant to falsify records he’s required to maintain for his New York businesses in New York [in order] to cover up criminal activity if the crime is a federal offense?,” Gibson said. “But if the same defendant does the exact same thing to cover up a New York crime, he’s held accountable? That can’t be what they intended.”

Any appeal would almost certainly not be resolved until after the November presidential election.

Richard Schoenstein, vice chair of Tarter, Krinsky & Drogin’s litigation practice, said the prosecution’s merger of state and federal statutes to turn the misdemeanor into a felony is “the most interesting legal point.” But Schoenstein does not necessarily see success in challenging it on appeal.

“I think the odds are against getting the conviction reversed,” he said. “But there are genuine issues.”

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Randy Eliason: “I Was Skeptical of the ‘Zombie’ Trump Case. I Stand Corrected.”

NYT oped:

When it came to the New York prosecution of Donald Trump, I was skeptical.

I was among the commentators who criticized the case. It was old, the so-called zombie case that had been kicking around for years. It appeared to rest on several untested and controversial legal theories. It seemed like a relatively trivial bookkeeping charge, unworthy of a prosecution of a former president.

But I have to hand it to the Manhattan prosecutors. Over the course of this trial, they convinced me — as they clearly and overwhelmingly convinced the jury. There will be an appeal, of course, and Mr. Trump may have some persuasive legal arguments.

But the jury’s quick decision reinforces the district attorney’s view that this was a righteous prosecution and about much more than mere accounting entries…

I think the prosecutors took a tough case and put on a seamless, coherent and persuasive presentation. But I also think that even the prosecutors, if they were being candid, would agree they got an assist.

The defense case, like Churchill’s infamous pudding, had no theme. The defense didn’t have to prove anything, but Mr. Trump’s lawyers failed to suggest any coherent, alternative explanation of events that might have raised a reasonable doubt in the minds of one or more jurors.

The defense might have had a shot with a targeted argument, admitting to an indiscretion with Ms. Daniels and the hush-money payment but insisting that the state had failed to prove that Mr. Trump knew his company’s internal bookkeeping documents were false or that he caused them to be made with intent to cover up another crime….

In presiding over the case, Justice Juan Merchan largely accepted the prosecution’s legal theories. Within that legal framework, the prosecutors did a great job presenting their case, just as the judge did in handling the trial. But I think some of those legal theories are potentially vulnerable.

There are questions about the proper meaning of intent to defraud under New York law, and whether that standard could be met by these internal documents. There’s a potential issue with using a federal campaign finance law as the basis for turning a state misdemeanor into a felony. This case raised these and other novel questions, and the defense will now have a chance to argue those questions before a higher court….

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“Michigan testimony points to ongoing state, federal probes into false electors”

Detroit News:

 Testimony in a Michigan court Friday revealed that both state and federal investigators continue to probe certificates that falsely claimed Donald Trump won the 2020 presidential election, five months ahead of the next presidential election.

On the fourth day of preliminary examinations for six Republicans whose names appeared on the false certificate in Michigan, Capt. Darren Green of the Michigan State Police, said he had been interviewed Thursday by someone from the Federal Bureau of Investigation and two U.S. prosecutors from Washington, D.C.

Green was at the Michigan Capitol when a group of false electors attempted to enter the building on Dec. 14, 2020, to present their document to the Michigan Senate. Green said the interview Thursday focused on the electors.

Just before Green’s remarks, Howard Shock, an agent of Michigan Attorney General Dana Nessel’s office, testified that he had outstanding subpoenas or search warrants for information as part of an ongoing state investigation into the false electors certificate.

“It’s still an open investigation,” Shock testified.

For the second time in two months, Shock said Trump, the former president and presumptive GOP nominee this year, was considered an unindicted co-conspirator, but as of now, there wasn’t enough evidence to recommend charges against him.

“He’s part of the investigation, but he hasn’t been charged with a crime yet,” Shock said of Trump.

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“Trump supporters try to doxx jurors and post violent threats after his conviction”

Ryan Reilly for NBC News:

The 34 felony guilty verdicts returned Thursday against former President Donald Trump spurred a wave of violent rhetoric aimed at the prosecutors who secured his conviction, the judge who oversaw the case and the ordinary jurors who unanimously agreed there was no reasonable doubt that the presumptive Republican presidential nominee falsified business records related to hush money payments to a porn star to benefit his 2016 campaign.

Advance Democracy, a non-profit that conducts public interest research, said there has been a high volume of social media posts containing violent rhetoric targeting New York Judge Juan Merchan and Manhattan District Attorney Alvin Bragg, including a post with Bragg’s purported home address. The group also found posts of the purported addresses of jurors on a fringe internet message board known for pro-Trump content and harassing and violent posts, although it is unclear if any actual jurors had been correctly identified.

The posts, which have been reviewed by NBC News, appear on many of the same websites used by Trump supporters to organize for violence ahead of the Jan. 6, 2021, attack on the Capitol. These forums were hotbeds of threats inspired by Trump’s lies about the 2020 election, which he lost, and that the voting system was “rigged” against him. They now feature new threats echoing Trump’s rhetoric and false claims about the hush money trial, including that the judicial system is now “rigged” against him.

“Dox the Jurors. Dox them now,” one user wrote after Trump’s conviction on a website formerly known as “The Donald,” which was popular among participants in the Capitol attack. (That post appears to have been quickly removed by moderators.)

“We need to identify each juror. Then make them miserable. Maybe even suicidal,” wrote another user on the same forum. “1,000,000 men (armed) need to go to washington and hang everyone. That’s the only solution,” wrote another user. “This s— is out of control.”

“I hope every juror is doxxed and they pay for what they have done,” another user wrote on Trump’s Truth Social platform Thursday. “May God strike them dead. We will on November 5th and they will pay!”

“War,” read a Telegram post from one chapter of the Proud Boys, the far-right group whose former chair and three other members were convicted of seditious conspiracy because of their actions at the Capitol on Jan. 6, just a few months after Trump infamously told the group to “stand back and stand by“ during a 2020 debate….

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Publisher of “2000 Mules” Film Depicting Bogus Claims of Voter Fraud by Dinesh D’Souza and True the Vote Apologizes to Voter Falsely Accused of Fraud, Won’t Distribute Film Any Longer

When will people learn not to trust the fraudulent fraud squad? Via Tom Dreisbach:

UPDATE: Here is the fuller NPR story.

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“Kansas Supreme Court finds Kansans have no ‘fundamental right’ to vote. What it means”

KC Star:

The Kansas Supreme Court has ruled that voting is not a fundamental right protected by the Kansas Constitution. The landmark decision on voting rights Friday is likely to weaken legal challenges to future voting restrictions in Kansas.

The majority opinion reversed a 2023 appeals court decision that recognized any restrictions on the fundamental right to vote would be subject to the highest legal bar for evaluation, or strict scrutiny. Justice Caleb Stegall wrote for the majority, saying voting is instead a “political right” under the Kansas Constitution that has a lower bar for regulation than fundamental rights. “But just because the right to vote is not protected in our Bill of Rights does not mean that constitutional voting guarantees are somehow weak or ineffective,” Stegall wrote. “Quite the contrary.” Stegall wrote that for a voting law or regulation to be found unconstitutional, it must pass the “Butts test,” which means “the law must be shown to unreasonably burden the right to suffrage.” If voting were found to be a fundamental right, the burden would be on the government to show new voting laws or regulations are narrowly tailored and necessary to achieve a compelling state interest. Three justices wrote dissenting opinions, arguing the majority opinion overturns longstanding case law and will have wide-ranging consequences for voting rights in Kansas….

The Kansas Legislature passed three such voting laws in 2021 that were challenged by the League of Women Voters, Loud Light and other civic groups, who claimed the laws violated the right to free speech, stifled the right to vote, and violated the constitutional guarantees of equal protections and due process. One law would make it a felony to impersonate an election official. Another would add new signature matching requirements for absentee ballots. The court’s 96-page opinion ruled these laws did not inhibit free speech nor did they place additional qualifications for voters to meet. Both were sent back to lower courts. A third law, which was upheld by the court, restricts the number of absentee ballots that could be delivered on the behalf of others to 10. The Supreme Court opened the door for a lower court to block the state from enforcing the false representation of an election official law. The lower court originally decided against blocking it.

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New Video Casebook with All Star Cast Teaches About Key Election Law Cases

Two of my favorite people, Sasha Natapoff and Guy Charles, have put this together and I can’t wait to watch all in the series:

Contributors and Cases

Professor Tabatha Abu El-Haj
Drexel U. Thomas R. Kline School of Law

Reynolds v. Sims (1964)

In this video, Professor Abu El-Haj explains how the Supreme Court established the foundational principle of one-person one-vote.

Professor Guy-Uriel Charles
Harvard Law School

Lassiter v. Northampton (1959)

In this video, Professor Charles explains how the Supreme Court upheld North Carolina’s literacy test requirement even though it was widely used to disenfranchise Black voters.Professor Yasmin Dawood
University of Toronto Faculty of Law

Harper v. VA Bd. of Elections (1966)

In this video, Professor Dawood explains how the Supreme Court held poll taxes to be an unconstitutional violation of the Equal Protection Clause.

Professor Luis Fuentes-Rohwer
Indiana University Maurer School of Law

Shelby County v. Holder (2013)

In this video, Professor Fuentes-Rohwer explains how the Supreme Court struck down Section 4 of the Voting Rights Act as unconstitutional, throwing doubt on Congressional authority and decades of voting rights jurisprudence.

Professor Michael Kang
Northwestern Pritzker School of Law

Citizens United v. FEC (2010)

In this video, Professor Kang explains how the Supreme Court decided that the First Amendment bars constraints on independent electioneering expenditures, thereby deregulating a vast swath of election spending.

Professor Ellen Katz
University of Michigan Law School

Thornburg v. Gingles (1986)

In this video, Professor Katz explains how the Supreme Court created the basic framework for understanding and applying Section 2 of the Voting Rights Act and the meaning of racially polarized voting.

Professor Justin Levitt
LMU Loyola Law School, Los Angeles

Shaw v. Reno (1993)

In this video, Professor Levitt explains how the Supreme Court changed the core meaning of racial gerrymandering by permitting white voters to bring claims of discrimination.

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“The board of official canvassers . . . is liable to err in overestimating its powers.”

In light of the most recent election certification dispute in Georgia that Rick H. linked to earlier this week, here’s a relevant quotation from the Ruling Case Law (1915)–which suggests there is nothing new under the sun:

The board of official canvassers to whom the boards of election of the several divisions return their certificate showing the number of votes cast for each candidate, is liable to err in overestimating its powers. Whenever it is suggested that illegal votes have been received or that there were other fraudulent practices at the election, it is apt to imagine that it is its duty to inquire into these alleged frauds and to decide on the legality of the votes. Its duty, however, is almost wholly ministerial—to take the returns as made from the different voting precincts, add them up, and declare the result. Questions of illegal voting and fraudulent practices are passed on by another tribunal. The canvassers are to be satisfied of the genuineness of the returns, that is, that the papers presented to them are not forged and spurious, that they are returns, and are signed by the proper officers; but when so satisfied they may not reject any returns because of informalities in them or because of illegal and fraudulent practices in the election. The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of the voting. All other questions are to be tried before the court or other tribunal for contesting elections or in quo warranto proceedings. And so such a board cannot set up the illegality of the election or of the votes cast thereat as ground for resisting mandamus brought to compel it to perform its duty and canvass the returns, and the court has no jurisdiction to grant an order to have the ballot boxes placed at the disposal of the board’s counsel, for the purpose of enabling it to plead properly to the petition for mandamus. . . .

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“Joe Manchin leaves the Democratic Party, files as independent”


Sen. Joe Manchin (D-W.Va.) officially left the Democratic Party on Friday and registered as an independent.

Why it matters: Manchin, who flirted with an independent presidential bid earlier this year, has said he’s not running for Senate re-election. But leaving the party could give him the flexibility to change tack and run for Senate or West Virginia governor as an independent.

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Elie Honig: “Prosecutors Got Trump — But They Contorted the Law”

Elie Honig in New York:

Most importantly, the DA’s charges against Trump push the outer boundaries of the law and due process. That’s not on the jury. That’s on the prosecutors who chose to bring the case and the judge who let it play out as it did.

The district attorney’s press office and its flaks often proclaim that falsification of business records charges are “commonplace” and, indeed, the office’s “bread and butter.” That’s true only if you draw definitional lines so broad as to render them meaningless. Of course the DA charges falsification quite frequently; virtually any fraud case involves some sort of fake documentation.

But when you impose meaningful search parameters, the truth emerges: The charges against Trump are obscure, and nearly entirely unprecedented. In fact, no state prosecutor — in New York, or Wyoming, or anywhere — has ever charged federal election laws as a direct or predicate state crime, against anyone, for anything. None. Ever. Even putting aside the specifics of election law, the Manhattan DA itself almost never brings any case in which falsification of business records is the only charge.

Standing alone, falsification charges would have been mere misdemeanors under New York law, which posed two problems for the DA. First, nobody cares about a misdemeanor, and it would be laughable to bring the first-ever charge against a former president for a trifling offense that falls within the same technical criminal classification as shoplifting a Snapple and a bag of Cheetos from a bodega. Second, the statute of limitations on a misdemeanor — two years — likely has long expired on Trump’s conduct, which dates to 2016 and 2017.

So, to inflate the charges up to the lowest-level felony (Class E, on a scale of Class A through E) — and to electroshock them back to life within the longer felony statute of limitations — the DA alleged that the falsification of business records was committed “with intent to commit another crime.” Here, according to prosecutors, the “another crime” is a New York State election-law violation, which in turn incorporates three separate “unlawful means”: federal campaign crimes, tax crimes, and falsification of still more documents. Inexcusably, the DA refused to specify what those unlawful means actually were — and the judge declined to force them to pony up — until right before closing arguments. So much for the constitutional obligation to provide notice to the defendant of the accusations against him in advance of trial. (This, folks, is what indictments are for.)

In these key respects, the charges against Trump aren’t just unusual. They’re bespoke, seemingly crafted individually for the former president and nobody else.

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“This Supreme Court ruling is a ‘get-out-of-jail’ card for racial discrimination”

Michael Li oped:

The Supreme Court’s conservative supermajority made it much easier last week to attack the political power of the nation’s growing communities of color. The high court’s attacking voting rights isn’t new. But the latest blow, in a 6-3 opinion written by Justice Samuel Alito in a South Carolina case, is especially breathtaking and cynical because it creates a sweeping partisanship safe harbor for states that want to gerrymander communities of color out of power. Racially gerrymandered map? No, not us. We were just discriminating against Democrats who just happen to be Black (or Latino or Asian)….

Before Alexander, voters of color in racial gerrymandering cases had to show merely that race had predominated in map drawers’ decision-making. After Alexander, if states defend maps on the grounds that “it was just politics,” which they will do now in every case, Justice Alito’s opinion imposes an additional head-spinning hurdle. Voters of color must now also show that it would have been possible to pull off a state’s partisan gerrymander by targeting white voters.

This is likely to be a train wreck for communities of color.

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