Monthly Archives: June 2024

“Supreme Court Ruling Reflects Challenges of Jan. 6 Prosecutions”

chicanery

Alan Feuer NYT analysis:

The Supreme Court’s decision on Friday that prosecutors had misused an obstruction law in charging hundreds of rioters who attacked the Capitol is the latest example of the persistent challenges the Justice Department has faced in grappling with the consequences of Jan. 6, 2021.

By and large, the department has succeeded over the past three years in moving against members of the pro-Trump mob who sought to disrupt the certification of President Biden’s victory on Jan. 6, and in winning convictions on seditious conspiracy charges against members of two far-right groups that were instrumental in stoking the violence that day, the Proud Boys and the Oath Keepers.

But lacking any established legal blueprint for addressing an assault on the foundations of democracy, prosecutors sometimes got creative with the law. And that has left them vulnerable to second-guessing by the courts on how they have pursued criminal cases both against the rioters and against former President Donald J. Trump, and contributing to a long series of challenges and delays.

The court’s new ruling on the obstruction law will hardly cripple the Justice Department’s ability to go after the rioters, but it will constrain prosecutors by restricting the use of an important tool they have relied on to seek accountability against the most disruptive members of the mob….

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“Allegations of Democratic Voter fraud and Support for Political Violence Among Republicans”

chicanery

James A. Piazza in American Politics Research:

Are partisans more likely to endorse political violence when politicians accuse their rivals of election improprieties? I theorize that for Republican partisans in the United States, the answer to this question is yes. Republican partisans are primed to believe allegations of cheating by Democrats and view election improprieties through the lens of racial and xenophobic resentments. Allegations of Democratic election fraud prompt them to eschew nonviolent norms of political behavior and endorse political violence. I test these propositions using an original, online survey experiment involving 140 self-identified Republican subjects. I find that exposure to allegations by politicians that Democrats engage in election fraud prompts Republican partisans to increase their support for political violence. Furthermore, using mediation tests, I find that exposing Republicans to allegations of electoral fraud by Democrats reduces their trust of people of different races and religions which, in turn, increases their support for political violence.

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“Justices Thomas and Alito Ignored Calls for Recusal in Jan. 6 Case”

conflict of interest laws, Supreme Court

NYT:

Justices Clarence Thomas and Samuel A. Alito Jr., rejecting calls for their disqualification, participated in the case, siding with a member of the mob that stormed the Capitol on Jan. 6, 2021.

Experts in legal ethics have said that the activities of the justices’ wives raised serious questions about their impartiality.

Virginia Thomas, known as Ginny, helped shape the effort to overturn the 2020 election. “Biden and the Left is attempting the greatest Heist of our History,” Ms. Thomas wrote in a text message to Mark Meadows, President Donald J. Trump’s chief of staff, during the fraught weeks between the 2020 presidential election and the Jan. 6 attack.

Justice Thomas has not given a public explanation for remaining on the case, and he has taken part in other cases arising from the election and the 2021 attack. But he recused himself in October from a case concerning John Eastman, a conservative lawyer who had advised Mr. Trump. Justice Thomas, for whom Mr. Eastman had served as a law clerk, gave no reasons for his decision to disqualify himself from that case.

Justice Alito has been more forthcoming. He explained why he would not recuse from the case in a letter to Democratic lawmakers in May after The New York Times reported that flags that have been used to support the “Stop the Steal” movement had been displayed at his homes in Virginia and New Jersey.

The justice said his wife, Martha-Ann, was responsible. “My wife is fond of flying flags,” he wrote. “I am not. She was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years.”…

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Bottini: “Is there still a judge in Paris? French legislative elections proceed with minimal constitutional check”

comparative election law, election administration

The following is a guest post from Eleonora Bottini, Professor of Public Law, University of Caen Normandy:

On June 20th and 26th, 2024, the French Constitutional Council, unsurprisingly, authorized the legislative snap elections in France to proceed as planned. Following the unexpected dissolution of the National Assembly on June 9th after the polarized results of European elections, President Emmanuel Macron’s decisions faced a significant number of constitutional complaints – a total of 25 to date. Complaints challenged the two presidential decrees—one for the dissolution and one for organizing the election—based on Article 12 of the Constitution, which grants the President the authority to dissolve the National Assembly under certain conditions and mandates that elections be held within 20 to 40 days following dissolution.

Regarding the former, the Constitution requires the President to “consult” the Prime Minister and the Presidents of the two chambers before dissolving the lower chamber. According to various press articles, President Macron merely informed the President of the Senate and the National Assembly, and the Prime Minister discovered the dissolution only a few moments before it was announced. Without addressing the merits of the significance of the required consultation, the Constitutional Council reaffirmed a well-established precedent: no constitutional review can be performed due to lack of jurisdiction over the presidential power of dissolution. Similarly, the supreme administrative court, the Council of State, concluded that the dissolution decree is “an act related to the relationship between the President and the National Assembly,” and thus outside the court’s jurisdiction, following a doctrine similar to the political question doctrine known as the “government’s acts theory.” While the actual decisions are in line with past precedents, they provoked a somewhat astonishing thought for constitutional lawyers: if any of the other rules about the powers of the President in case of political crisis, such as the prohibition to dissolve the Assembly twice in one year, are broken, no judge would be able to control and sanction such a violation.

On the other hand, the Constitutional Council has jurisdiction over the elections decree, as it is considered a preliminary act to a national election. Under Article 59 of the Constitution, the Council serves as the election judge, a role that is parallel to but distinct from its function as a constitutional review body. Complaints argued that the minimum delay of 20 days between the dissolution and the first round of elections was not respected since the dissolution would only enter into force the day after its pronunciation (therefore on June 10th) and since some overseas territories would start voting earlier than mainland France, on June 29th. In its decision, the Council concluded for an opposite interpretation: the specific timing of snap elections should be interpreted not as 20 full days but as the possibility for elections to be organized on the 20th day, which applies to the early elections in overseas territories, since the dissolution entered into force on the same day as the presidential decision was announced (at 9pm on a Sunday night).

Beyond the technical aspects of the Council’s decision, one must consider what else this body, which is neither an actual constitutional court nor a fourth branch institution, could have done given the advanced state of the political campaign and the time constraints on the President. The dates of the vote were influenced by French national holiday weekend (July 14th) which risked increasing voter abstention, and the upcoming Olympic Games in Paris (starting July 26th). Critics tried to argue that such a hasty election process violates the broader principle of voting sincerity and fairness, guaranteed by both the French Constitution (Article 3) and the European Convention on Human Rights (Article 3 of addition Protocol 1). However, once the Constitutional Council had interpreted the constitutional time-frame in the way it did, there was no chance that such timing could be considered anything but respectful of voting rights. Still, by rejecting these arguments with minimal explanation, stating only that “since the sole purpose of Article 1 of this decree is to set the date for convening the electorate within the framework provided by Article 12 of the Constitution, the complaint alleging disregard for the freedom and sincerity of the vote must be dismissed,” the Council left unclear why a decree setting the election date could not by itself impact the fairness of the vote. This is especially pertinent when the short preparation time for national legislative elections was the core of the complaints. But it was also an important part of the President’s political strategy to provoke the consolidation of an anti-extremes vote, one that no judge felt legitimate enough to discuss.

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“The Government Needs to Act Fast to Protect the Election”

cheap speech, social media and social protests, Supreme Court

Gowri Ramachandran and Lawrence Norden post-Murthy in The Atlantic:

With Murthy now dismissed and limited time before November 5, the federal government can and should immediately resume its regular briefings with social-media companies about foreign interference in our elections. Although there are encouraging signs that the federal government is slowly resuming these efforts, they appear limited compared with what was done in prior elections. The government should also, as it has in the past, help connect state and local election officials with appropriate contacts at social-media companies. That way local officials and social-media companies can keep each other apprised of any changes in disinformation they are seeing regarding how, when, and where to vote. And the federal government should drastically increase efforts to inform the American public about foreign adversaries’ operations intended to decrease confidence in elections. The government must also make clear that threatening election officials—and their families and children—will not be tolerated.

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WRAL Capital Broadcasting Co. 3 Part Series on the New Role of Outside Money in North Carolina Elections

campaign finance

CBC EDITORIAL INVESTIGATES: Outside campaign money dominates N.C. elections (PART ONE; Monday, June 24, 2024)

CBC EDITORIAL INVESTIGATES: Outside groups spending on N.C. campaigns. Who they are? What they want? (PART TWO: Tuesday, June 25, 2024)

CBC EDITORIAL INVESTIGATES: Voters’ ballots must speak louder than those who secretly finance campaigns (PART THREE; Wednesday, June 26, 2024)

CBC EDITORIAL INVESTIGATES: Outside campaign money dominates — the-data 

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Breaking: Plaintiffs, Likely Fearing the Supreme Court Will Make Things Worse, Decline to Seek Supreme Court Review of Eighth Circuit Case Holding There’s No Right For Private Parties to Sue Under Section 2 of Voting Rights Act

Voting Rights Act

With today’s deadline, I have learned there will be no cert petition filed. This is a case from the Eighth Circuit that is wrong on the text of the Voting Rights Act, wrong on its history, and wrong on its purpose. And yet the plaintiffs have made a decision not to sue.

Without a cert. petition filed, this means that there’s no right of private plaintiffs to bring suit to enforce Section 2 of the VRA anywhere in the Eighth Circuit. (It’s possible this will change down the line in pending Eighth Circuit cases raising the question whether such a right to sue could come through section 1983.)

So why not bring this to the Supreme Court? The fear must be that despite the strong arguments that there is such a right for private plaintiffs to sue under Section 2, a majority of the Court could disagree. If applied nationally, such a ruling could eliminate 96 percent of section 2 redistricting cases brought nationally.

I’ll have more to say about this soon.

UPDATE: After hearing from a reader, here’s perhaps more optimistic way to think about this issue. Maybe one reason not to seek cert. in this case is that upcoming there’s a better vehicle for Supreme Court review. There’s another case from the circuit where section 1983 will be the basis for relief (there’s one of those in the pipeline now).

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My New One at Slate: “That Big Jan. 6 Supreme Court Decision Is Not the Win for Trump People Think It Is”

chicanery, election subversion risk, statutory interpretation, Supreme Court

I have written this piece for Slate. It begins:

In Fischer v. United States, a divided Supreme Court, in an opinion by Chief Justice John Roberts, handed Donald Trump a political victory by saying the government overreached in prosecuting some of the Jan. 6 rioters. But it created a potentially big legal problem for him by confirming that the submission of “false evidence” in an official proceeding—as Trump allegedly help orchestrate with the fake electors scheme after he lost the 2020 election—indeed violates federal law. Should Donald Trump ever go to trial on 2020 election interference, and that’s a big if depending on what the Supreme Court does Monday in the pending Trump immunity case, he could well face some serious jail time….

So this is a political victory for the Trumpists, who can now claim judicial overreach as a number of Jan. 6 insurrectionists get part of their charges thrown out. Of course, no one is going to be getting into the weeds of statutory interpretation when they debate this in public. The point is that supporters of the rioters can say the Biden Department of Justice overreached in aggressively applying the statute. As I write this, the banner headline on the New York Times website says, “Supreme Court Says Prosecutors in Jan. 6 Case Overstepped.” That surely hands a victory to Trump and his supporters.

But Roberts did one thing that he did not have to do that surely would hurt Trump if he ever goes on trial for election interference. Trump too was charged with interfering with an official proceeding. He did not physically invade the Capitol or destroy property. He instead is alleged to have engaged in election subversion, including causing the submission of fake electors in an effort to swing the election that he lost from Biden to him. 

Could that conduct count as a violation of the statute? The majority opinion states that “it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence.” That’s exactly what Trump is alleged to have engaged in a conspiracy to do. If Trump acted corruptly and if the fake slates of electors count as “false evidence,” well then he and others could be in a lot of criminal trouble.

Roberts’ opinion was joined by other conservative justices, including Samuel Alito, Neil Gorsuch, and Clarence Thomas. Getting them on the record on this is no small thing. And surely the Barrett dissenters would agree too that the statute covers the creation of false evidence….

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Supreme Court Hands January 6 Rioters a Win in Fischer Case, But It Likely Won’t Help Trump Beat Similar Charges Against Him (Should He Ever Go To Trial on Election Interference)

election subversion risk, Supreme Court

The key holding in Fischer v. United States is to read the obstruction statute so that “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other
things used in the proceeding, or attempted to do so.” Rioters were not interfering with evidence, so even though they were trying to stop the counting of electoral college votes, they could not be charged with obstruction under this particular statute.

But Trump allegedly did try to obstruct the proceeding with evidence: the fake electors scheme. So those charges could potentially go forward. (We are still waiting on the immunity ruling which impacts those charges, and Trump likely has run out the clock on the trial before the election.)

Make no mistake: this is a huge political victory for Trump and the January 6 supporters, who will now claim government overreach. And it’s horrendous that, unlike what Justice Jackson did in her concurrence n condemning the attempt to interfere with the peaceful transition of power, there’s not a word from Chief Justice Roberts on how despicable the conduct was. (He does, however, acknowledge that it was Trump supporters (not antifa!) that stormed the Capitol.)

But it doesn’t stop these charges from going forward against Trump.

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What Replaces Chevron Deference in Administrative Law Statutory Interpretation Cases? Greater Judicial Power

legislation and legislatures, Supreme Court

Here, from the end of the Chief Justice’s opinion in Loper-Bright, is a brief paragraph on what replaces Chevron deference to administrative agency interpretation of ambiguous statutes:

Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

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More on the legal (and practical) issues around a presidential candidate’s withdrawal

primaries

Rick H. gets the heart of the issues right in his early post. I want to highlight some more wrinkles (but I put the odds of Biden stepping down much lower than 50%).

First, Rick is right that the DNC rules for “pledged” candidates really just a pledge and not binding. Per IX.E.3.d, “All delegates to the National Convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.” Likewise, IX.C.7.e, “Eligible delegates may vote for the candidate of their choice whether or not the name of such candidate was placed in nomination.” (Rick rightly notes, “That would be true even if Biden stayed in the race,” but this is not a politically likely option.)

Second, in the event of a vacancy in the ticket after the convention, the rules are a little different: “Filling a Vacancy on the National Ticket: In the event of death, resignation or disability of a nominee of the Party for President or Vice President after the adjournment of the
National Convention, the National Chairperson of the Democratic National Committee shall confer with the Democratic leadership of the United States Congress and the Democratic Governors Association and shall report to the Democratic National Committee, which is authorized to fill the vacancy or vacancies.”

Third, the DNC announced it would hold a “virtual roll call” before the convention. That was when there was some doubt about Ohio’s ability to amend its ballot access rules. But perhaps more interestingly, even though Ohio has amended its law, it appears the DNC might worry that other deadlines in other states might be a problem, or in states where a “provisional certification” previously was sufficient for a presumptive nominee that might be legally challenged in this election. Regardless, it’s not clear how this would work in the event of a contested convention, and the DNC might have to backtrack if that’s the case.

Fourth, “superdelegates” (or “automatic delegates”) are eligible only on the second ballot in the event no candidate has a pledged majority the first time around (IX.C.7.b). So the ground could shift from the first to the second ballot separate and apart from any jockeying after the first ballot and candidacies.

Fifth, and finally, recall that New Hampshire violated the DNC’s rules by going early with its primary. In eras of consensus (think to the 2008 Michigan and Florida fiasco, resolved only once Barack Obama secured a majority of the delegates and those states’ rule-breaking delegations could be seated), there is little dispute when some states violate party rules. But in a contested convention, the decision whether to seat a batch of rule-breaking delegates will be much more fraught.

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Don’t Let the Dismal Biden Debate Performance Overshadow Donald Trump’s Whitewashing of January 6 and His Refusal to Commit to Accepting the Results of the 2024 Election

election subversion risk

All eyes of course are on Biden’s dismal performance in last night’s debate. (I wrote about the election law implications here.) But that should not overshadow the continued serious risk of election subversion coming from Donald Trump. Plans are already underway for 2024.

I’ll have more to say about this in coming days, but Trump refused to take responsibility for January 6 during the debate, lied about the actions he took to quell the violence, and committed to accepting the results of the election only if it is “fair” in his view. We know he has never seen a fair election in which he has lost (and even some that he has won). The risks to free and fair elections remain quite high in this country, and we are in quite dangerous times. The most likely thing that avoids a protracted fight and potential violence surrounding the 2024 election is a Trump cakewalk to victory.

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The Election Law Issues Surrounding a Potential Biden Withdrawal from the Presidential Race

Candidate replacement, political parties

I think after last night’s dismal debate performance, the odds that Joe Biden will drop out of the presidential race are now greater than 50 percent. Just look at where the columnists in the New York Times are.

How would this happen and what are the election law implications?

First, how would this happen? The most likely scenario is that the people around Biden whom he trusts would have to convince him to drop out. It’s going to be his choice. The alternative is a fight at the convention over delegates, which would be very ugly. I think that’s really an unlikely scenario given the leadership of the Democratic Party. But people who saw that performance last night in Democratic leadership appear united in thinking it was not the performance of someone who could go on for four more years, so the pressure on Biden’s inner circle would be intense.

Assuming Biden voluntarily withdraws, there are two main election law questions: the rules of the convention, and the rules of ballot access. The rules of the convention are pretty simple in that delegates would be free to vote their consciences. See Rule C7e on page 19. (That would be true even if Biden stayed in the race.) Presumably, if Biden announced a withdrawal soon, a number of candidates would put their names in the ring. There might even be debates before the convention so that each of these people could be seen in prime time.

We are also early in terms of ballot access. Most state rules for major party candidates point to the convention winner as the presidential candidate. There could be some timing glitches in some places which could lead to litigation. There could be questions if Biden is on the ticket about presidential electors who under state law would have to vote for the candidate they were listed for. But I think we are early enough that most of the kinks would be worked out early.

So the bottom line is that there is unlikely to be an election law impediment to replacing Biden, should Biden choose to withdraw.

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“Arizona RNC delegation chair: ‘I would lynch’ county election official”

chicanery

WaPo:

Earlier this month, Shelby Busch — chair of Arizona’s delegation to the Republican convention — was in court trying to learn the identities of local elections workers. Under oath, she said she was unaware of any threats that had been made against the people who helped run the last presidential election and the midterm election that followed.

This week, video emerged that showed Busch saying she would “lynch” the official who helps oversee elections in Maricopa County: Stephen Richer, a fellow Republican.

“Let’s pretend that this gentleman over here was running for county recorder,” Busch said, seeming to refer to someone off-camera in the video, which was recorded at a public meeting in March. “And he’s a good Christian man that believes what we believe. We can work with that, right? That, that’s unity.”

“But,” she said moments later, “if Stephen Richer walked in this room, I would lynch him. I don’t unify with people who don’t believe the principles we believe in and the American cause that founded this country. And so, I want to make that clear when we talk about what it means to unify.”

Richer, who posted the video on social media this week, is Jewish.

Busch said Thursday that “the statement was a joke and was said in jest.” She did not address additional questions.

“I do not condone and would never condone violence against anyone,” Busch said in a statement. “It was political hyperbole and no way meant as a threat of violence.”

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