Judicial independence is under grave threat on several fronts, Chief Justice John G. Roberts Jr. wrote on Tuesday in an unusually urgent and somber year-end report on the state of the federal judiciary.
“Violence, intimidation and defiance directed at judges because of their work undermine our Republic, and are wholly unacceptable,” he wrote.
The report, which arrived in the wake of questions about the court’s ethical standards and a drop in its approval ratings, said some criticism of judges’ work is healthy, warranted and welcome.
“Unfortunately, not all actors engage in ‘informed criticism’ or anything remotely resembling it,” he wrote. “I feel compelled to address four areas of illegitimate activity that, in my view, do threaten the independence of judges on which the rule of law depends.”
One, he wrote, was “violence directed at judges for doing their jobs.” The number of hostile threats and communication directed at judges has more than tripled in the past decade, he wrote. “In extreme cases,” he added, “judicial officers have been issued bulletproof vests for public events.”
…“Public officials, too, regrettably have engaged in recent attempts to intimidate judges — for example, suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations,” Chief Justice Roberts wrote, adding: “Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others.”
…A third threat to judicial independence, he wrote on Tuesday, was disinformation about the work of the courts amplified by social media. Some of it, he said, was the product of “a new and growing concern from abroad.”
“In recent years, hostile foreign state actors have accelerated their efforts to attack all branches of our government, including the judiciary,” the chief justice wrote. “In some instances, these outside agents feed false information into the marketplace of ideas. For example, bots distort judicial decisions, using fake or exaggerated narratives to foment discord within our democracy.
“In other cases, hackers steal information — often confidential and highly sensitive — for nefarious purposes, sometimes for private benefit and other times for the use of state actors themselves. Either way, because these actors distort our judicial system in ways that compromise the public’s confidence in our processes and outcomes, we must as a nation publicize the risks and take all appropriate measures to stop them.”…
Monthly Archives: December 2024
“What did US election officials learn about our democracy from 2024’s vote?”
Until the 2020 election, local election officials worked in obscurity and anonymity, ensuring that the election was fairly administered and complied with state and federal laws. But ever since the president-elect’s loss in 2020, they have borne the brunt of his efforts to sow doubt about the integrity of US elections. They have faced vicious harassment campaigns, been bombarded with public records requests, and been on the frontlines combating misinformation about voting. A number left the profession altogether.
Many election officials had been preparing for an intense period of uncertainty after election day, concerned that, as in the 2020 election, the winner of the presidential election would be uncertain and they would face immense pressure as Trump and his allies sought to subvert the election results. But when the race was called fairly quickly for Trump, the results were widely accepted, with few questions about who won.
“I think the age of election denialism is, for all intents and purposes, dead,” Adrian Fontes, a Democrat who is Arizona’s top election official, said when he certified his state’s election results in late November.
But in interviews, several local election officials said the story was more complex. While they hoped the uncontested outcome of the 2024 election would pave the way for a return to normalcy after four bruising years, they doubted it would end election denialism altogether.
“The temperature certainly needed to be brought down, and as a result of the election, the temperature seems to have frozen,” said Barb Byrum, a Democrat who oversees elections in Ingham county in Michigan.
“I don’t think it’s the end of election denialism, but the louder conspiracy believers, their candidate won,” Byrum said. “It has been evident that when that particular group, when their candidate is victorious, they’re quiet. But that does not mean that they won’t be louder for the next election.”
Eighty-eight per cent of voters say that the 2024 elections were administered well, a significant increase from 2020, when just 59% said so, according to a recent survey by Pew Research Center….
“How Elon Musk Has Planted Himself Almost Literally at Trump’s Doorstep; For much of the period since Election Day, the billionaire has been staying at a $2,000-a-night cottage at Mar-a-Lago, giving him easy access to the president-elect.”
Elon Musk plays many roles with President-elect Donald J. Trump. He is Mr. Trump’s most important donor, most influential social media promoter and a key adviser on policy and personnel.
For most of the time since Election Day, he has also been Mr. Trump’s tenant.
Mr. Musk has been using one of the cottages available for rent on Mr. Trump’s property at Mar-a-Lago, the former Marjorie Merriweather Post home in Florida that Mr. Trump converted into a members-only club and hotel in the 1990s, according to two people with knowledge of the arrangement. The cottage where he has been staying, named Banyan, is several hundred feet away from the main house, according to a person who knows the property.
Staying right on the grounds has helped provide Mr. Musk with easy access to Mr. Trump.
He can drop in on Mr. Trump’s dinners, such as one he had recently with Mr. Musk’s rival, the Amazon founder Jeff Bezos.
Mr. Musk, who spent more than a quarter of a billion dollars in the final months of this year’s election cycle to help elect Mr. Trump, has attended personnel meetings in the Mar-a-Lago Teahouse, sat in on phone calls with foreign leaders and spent hours with Mr. Trump in his office. Mr. Musk’s employees from his various businesses have also been integrally involved in the transition, vetting prospective candidates for senior administration jobs, in interviews at the Trump transition headquarters in West Palm Beach….
“Vote-swapping returned in 2024 amid protest movement, but fell short of its aims again”
Progressives determined to defeat Donald Trump but unsatisfied with Kamala Harris’s position on the war in Gaza were offered an 11th-hour voting option this year: In October, a group called Swap Your Vote began offering to match voters in politically “safe” states with those in swing states.
The idea was that a prospective Democratic voter in a reliably blue state could instead cast a protest vote for a third-party candidate on behalf of their match in the swing state. The swing-state voter would feel like, through the trade, they were voting their conscience without putting their broader election aims at risk.
Such vote swapping isn’t new. In 2000, multiple sites popped up on the relatively new World Wide Web, connecting prospective Al Gore voters in solid Republican states with voters in swing states who wanted to vote for Ralph Nader.
This year, as in 2000, vote swapping didn’t generate a large volume of protest votes, and the Trump opponents failed in their broader aim to deny him a victory in the swing states. But voters who participated in vote swaps said it provided them with a useful outlet to cast a meaningful vote while remaining true to their core beliefs….
In 2000, websites like vote-swap2000.com, votexchange2000.com, and NaderTrader.com launched in response to an article by constitutional law professor Jamie Raskin (now a U.S. congressman from Maryland), proposing vote swapping as a way to prevent protest votes from costing Gore the election.
The websites enabled third-party supporters in swing states such as Florida and Ohio to agree to be paired with major-party supporters in “safe states” such as Massachusetts or Texas.
Republican Bill Jones, who was California’s Secretary of State at the time, had threatened operators of the sites with criminal prosecution, claiming that what they were doing was similar to “vote buying” in violation of election laws. The creators of vote-swap2000.com and votexchange2000.com disabled their vote-swapping mechanisms but claimed in court that Jones’ threatened prosecution violated their First Amendment rights.
Almost seven years later, the judges of the 9th U.S. Circuit Court of Appeals ruled that vote swapping was not the same as “buying” votes because no money or thing of value changed hands. The court further held the practice to be protected by the First Amendment.
But the legality of vote-swapping initiatives could yet be challenged, says Michael Morley, an election law professor at Florida State University’s College of Law.
“The Supreme Court has never directly addressed the issue,” Morley says — and neither have most of their federal appeals courts. Given that, while this precedent might be persuasive to the Court, “they are also free to reject it.”
Morley says swapping votes could be interpreted as “paying someone for their vote, whether you’re paying them in cash, services or through someone else promising to vote a particular way.” Thus, Morley cautioned, a court could reach a different conclusion than the 9th Circuit did in 2007.
Richard Hasen, director of the Safeguarding Democracy Project at UCLA School of Law, agrees that legal uncertainty hangs over vote-swapping. There’s an argument that exchanging votes is an exchange of value and a form of illegal vote buying, he said. But there are strong arguments to the contrary, he noted.
“A legislator cannot exchange anything of value for her vote on a bill, for example,” he explained. “But what if there’s horse trading between legislators — ‘I vote for your bill if you vote for mine?’ Some have argued that pure political exchanges should not be covered by bribery laws. One could say the same about vote swapping.”
Hasen added: “There’s also an argument that these are not enforceable contracts, and so that makes them not an agreement to engage in vote buying.”
REN webinar on new book
Reform Elections Now hosted a webinar on Electoral Reform in the United States:
Proposals for Combating Polarization and Extremism (edited by Larry Diamond, Rick Pildes, and me.). This webinar offers a useful introduction and overview of the book’s content and includes a valuable discussion on how best to achieve the kind of reforms that would be most useful.
“State Law and Federal Elections After Moore v. Harper”
Carolyn Shapiro has written this article for the NYU Law Review. Here is the abstract:
In Moore v. Harper, the Supreme Court rejected the extreme proposition that state legislatures operate free from state constitutional constraints and judicial review when they regulate federal elections. The Court, however, left open the possibility that a state court might run afoul of the federal Constitution if, in striking down or construing state election law, it exceeds “the ordinary bounds of judicial review.” This Article explores the potential scope of that exception, and it proposes arguments and strategies to guard against undue and disruptive federal court intrusion on state election law. In particular, the Article relies on longstanding principles of federalism to develop substantive and procedural arguments that insist on federal court deference to state courts’ interpretation and application of their own law.
“Elon Musk’s Political Influence Wears Down Global Resistance to Starlink”
“The 118th Congress passed the fewest laws in decades”
If measured by the number of bills signed into law, the 118th Congress was by far the most unproductive since at least the 1980s, according to data from public affairs firm Quorum.
Why it matters: That is not the only metric of success, but the stunning stat is a marker of how difficult the chaos of the last two years made actual legislating.
- Every fiscal deadline led to brinksmanship between the Republican House and the Democratic Senate and White House.
- House Republicans were also beset by infighting and palace intrigue, most notably the ouster of former House Speaker Kevin McCarthy.
- Throughout the disarray, trust between House Democrats and Republicans reached a low ebb— making bipartisan compromise rare.
Remembering Jimmy Carter and His Legacy for Election Law
President Jimmy Carter died at 100. He was a moral, decent man, committed to the cause of justice. One of his passions was for democracy. His work with the Carter Center helped to ensure fair elections around the world.
He was involved in two commissions in the United States to improve American elections following the disputed 2000 elections that revealed serious flaws with American election administration, the Carter-Ford Commission after 2000 and the Carter-Baker commission after 2004. I had the privilege to testify before the Carter-Baker commission.
The Carter-Baker Commission report had many sound recommendations for reforms; its endorsement of voter identification laws proved controversial, and my friend Spencer Overton and others dissented in part from the recommendations (see page 89 of the report). The recommendation itself only supported voter id if if could be done in ways that did not overly burden voters and was coupled with efforts to get voters registered, a sensible basis for some bipartisan compromise.
After the attempted election subversion of the 2000 election, President Carter wrote an essay in the New York Times, I Fear for Our Democracy. His steps forward also seemed quite sensible:
First, while citizens can disagree on policies, people of all political stripes must agree on fundamental constitutional principles and norms of fairness, civility and respect for the rule of law. Citizens should be able to participate easily in transparent, safe and secure electoral processes. Claims of election irregularities should be submitted in good faith for adjudication by the courts, with all participants agreeing to accept the findings. And the election process should be conducted peacefully, free of intimidation and violence.
Second, we must push for reforms that ensure the security and accessibility of our elections and ensure public confidence in the accuracy of results. Phony claims of illegal voting and pointless multiple audits only detract from democratic ideals.
Third, we must resist the polarization that is reshaping our identities around politics. We must focus on a few core truths: that we are all human, we are all Americans and we have common hopes for our communities and our country to thrive. We must find ways to re-engage across the divide, respectfully and constructively, by holding civil conversations with family, friends and co-workers and standing up collectively to the forces dividing us.
Fourth, violence has no place in our politics, and we must act urgently to pass or strengthen laws to reverse the trends of character assassination, intimidation and the presence of armed militias at events. We must protect our election officials — who are trusted friends and neighbors of many of us — from threats to their safety. Law enforcement must have the power to address these issues and engage in a national effort to come to terms with the past and present of racial injustice.
Lastly, the spread of disinformation, especially on social media, must be addressed. We must reform these platforms and get in the habit of seeking out accurate information. Corporate America and religious communities should encourage respect for democratic norms, participation in elections and efforts to counter disinformation.
He was a wise man with a great love for the United States and for the people of the world, committed to democracy and fair voting. Condolences to his family and friends.
“Some Justice Department Lawyers Look for Protection—and the Exits”
ustice Department lawyers who have angered President-elect Donald Trump and his allies are facing tough decisions about whether to stay in government—and how to best protect themselves from threats of retribution after Inauguration Day.
Dozens of prosecutors and agents have worked on cases that potentially make them vulnerable, such as special counsel investigations of Trump, prosecutions of hundreds of his supporters who stormed the Capitol on Jan. 6, 2021, and contempt-of-Congress cases that sent top Trump associates Steve Bannon and Peter Navarro to prison this year.
Their concerns are part of a broader wave of uncertainty that has swept through the Justice Department since Trump’s re-election, as he and his appointees openly float plans to fire career employees and bring the department more closely under presidential control.
Some department lawyers on the fence about leaving have sought counsel from Attorney General Merrick Garland and other senior officials, who have encouraged them to stay on for continuity of government and for their expertise, people familiar with the discussions said.
Law firms say they have seen an unprecedented flood of résumés from department lawyers looking for the exits. While presidential transitions always upend the ranks of political appointees, “now, it’s seeping into a lot of career people,” said Steve Nelson, a legal recruiter who helps lawyers make the jump from government into the private sector….
“Kansas once required voters to prove citizenship. That didn’t work out so well”
Republicans made claims about illegal voting by noncitizens a centerpiece of their 2024 campaign messaging and plan to push legislation in the new Congress requiring voters to provide proof of U.S. citizenship. Yet there’s one place with a GOP supermajority where linking voting to citizenship appears to be a nonstarter: Kansas.
That’s because the state has been there, done that, and all but a few Republicans would prefer not to go there again. Kansas imposed a proof-of-citizenship requirement over a decade ago that grew into one of the biggest political fiascos in the state in recent memory.
The law, passed by the state Legislature in 2011 and implemented two years later, ended up blocking the voter registrations of more than 31,000 U.S. citizens who were otherwise eligible to vote. That was 12% of everyone seeking to register in Kansas for the first time. Federal courts ultimately declared the law an unconstitutional burden on voting rights, and it hasn’t been enforced since 2018.
Kansas provides a cautionary tale about how pursuing an election concern that in fact is extremely rare risks disenfranchising a far greater number of people who are legally entitled to vote. The state’s top elections official, Secretary of State Scott Schwab, championed the idea as a legislator and now says states and the federal government shouldn’t touch it.
“Kansas did that 10 years ago,” said Schwab, a Republican. “It didn’t work out so well.”…
To be clear, voters already must attest to being U.S. citizens when they register to vote and noncitizens can face fines, prison and deportation if they lie and are caught.
fter Kansas residents challenged their state’s law, both a federal judge and federal appeals court concluded that it violated a law limiting states to collecting only the minimum information needed to determine whether someone is eligible to vote. That’s an issue Congress could resolve.The courts ruled that with “scant” evidence of an actual problem, Kansas couldn’t justify a law that kept hundreds of eligible citizens from registering for every noncitizen who was improperly registered. A federal judge concluded that the state’s evidence showed that only 39 noncitizens had registered to vote from 1999 through 2012 — an average of just three a year.
In 2013, then-Kansas Secretary of State Kris Kobach, a Republican who had built a national reputation advocating tough immigration laws, described the possibility of voting by immigrants living in the U.S. illegally as a serious threat. He was elected attorney general in 2022 and still strongly backs the idea, arguing that federal court rulings in the Kansas case “almost certainly got it wrong.”
Kobach also said a key issue in the legal challenge — people being unable to fix problems with their registrations within a 90-day window — has probably been solved.
“The technological challenge of how quickly can you verify someone’s citizenship is getting easier,” Kobach said. “As time goes on, it will get even easier.”…
The U.S. Supreme Court refused to hear the Kansas case in 2020. But in August, it split 5-4 in allowing Arizona to continue enforcing its law for voting in state and local elections while a legal challenge goes forward.
Seeing the possibility of a different Supreme Court decision in the future, U.S. Rep.-elect Derek Schmidt says states and Congress should pursue proof-of-citizenship requirements. Schmidt was the Kansas attorney general when his state’s law was challenged.
“If the same matter arose now and was litigated, the facts would be different,” he said in an interview.
But voting rights advocates dismiss the idea that a legal challenge would turn out differently. Mark Johnson, one of the attorneys who fought the Kansas law, said opponents now have a template for a successful court fight.
“We know the people we can call,” Johnson said. “We know that we’ve got the expert witnesses. We know how to try things like this.” He predicted “a flurry — a landslide — of litigation against this.”…
Sixth Circuit finds no standing for Michigan legislators to challenge ballot initiative under Elections Clause
Opinion in Lindsey v. Whitmer by Chief Judge Sutton, joined by Judges Bush and Murphy (excerpts lightly revised):
In 2022, voters passed Proposal 2, which created new voter-identification options, state-funded prepaid postage for absentee ballots, secure ballot drop boxes, and early voting. The provisions in Proposals 2 and 3 apply to state and federal elections.
Eleven Michigan state senators and representatives took issue with this last feature of the election amendments—their application to federal elections. They filed this action in federal court under 42 U.S.C. § 1983. They claimed that the election amendments violated the U.S. Constitution’s Elections Clause, which says that the “Times, Places and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” As the claimants see it, the Clause allows only state legislatures, not the citizens themselves, to set the time, place, and manner of federal elections. In bringing this lawsuit, the legislators sought to enjoin Michigan executive-branch officials from enforcing the two amendments. . . .
This case starts and finishes with injury in fact . . . .
In the context of challenges to legislative power, the courts distinguish individual injuries of legislators from institutional injuries of a legislature. . . .
In today’s dispute, the Michigan legislators fall within the general rule, not within these narrow exceptions. They filed this lawsuit as individuals, not as approved representatives of their legislature. They do not allege that they passed election laws foreclosed by the 2018 or 2022 state constitutional amendments. And they do not allege that they command votes sufficient to pass contrary election laws in the future. . . .
The legislators insist that the Elections Clause confers upon individual lawmakers a right to vote on federal election regulations and any deprivation of that right injures them. We decline this invitation to bore a good-for-Elections-Clause-only hole in Coleman and Raines. True, a concrete injury may “include harms specified by the Constitution itself.” TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021). But if such a right existed, our caselaw places it with “Legislature[s],” not legislators. U.S. Const. art. I, § 4. That’s why Arizona’s legislature may mount an Elections Clause challenge to “a redistricting plan” that would “nullif[y]” future redistricting-related bills. Ariz. State Legislature, 576 U.S. at 804. And that’s why the Court has indicated that individual legislators may not. See id. at 801–02.
The legislators point out that the Michigan Constitution vests legislative power over elections in individual lawmakers, suggesting that they must have suffered an injury as a result. But just as Congress cannot create standing in Article III courts that does not exist, neither may the Michigan Constitution. See TransUnion, 594 U.S. at 426; Raines, 521 U.S. at 818. The argument fails on its own terms anyway. The Michigan Constitution vests the legislative power in a “senate” and “house of representatives,” not individuals. Mich. Const. art. IV, § 1. That separate lawmakers cast separate votes does not alter the reality that legislators do not vote “as a prerogative of personal power.” Raines, 521 U.S. at 821. . . .
“A Razor-Thin House Majority Creates Headaches for Republicans”
They won, but barely.
Republicans held on to control of the House of Representatives in November by one of the thinnest margins in the country’s history—even smaller than in the current Congress—a result that will have them walking a tightrope again for the next two years. The drama starts next week when the party tries to elect a new speaker on the first day of the new session, with fresh grumblings about leadership setting the stage for an unpredictable vote.
Republicans won 220 seats to Democrats’ 215. One planned vacancy—that of former Rep. Matt Gaetz, who was elected to another term but said he won’t take office—will reduce Republicans to 219 when lawmakers reconvene on Jan. 3. Two resignations of lawmakers set to join the Trump administration—Reps. Elise Stefanik and Mike Waltz—will temporarily reduce GOP numbers to 217 later in January before special elections are held. President-elect Donald Trump starts his second term on Jan. 20.
While Republicans will have full control of Congress and the White House, the wafer-thin cushion in the House means any small handful of Republican defectors could trip up the GOP agenda by holding out for their leaders or their own terms. As the past two years have shown, it also means that a run of bad luck for Republicans—such as health setbacks or a string of resignations—could eat into the margin.
“We know how to work with a small majority; that’s our custom now,” House Speaker Mike Johnson (R., La.) told reporters earlier this month. “This is a team effort and we’ve got to all row in the same direction.”
At the extreme, Republicans could surrender the majority by attrition before the next election, something that actually happened in 1931, when Republicans lost a two-seat majority midway through then-President Herbert Hoover’s term….
“This Was the Year of the Influencer Political Takeover”
After years of sitting on the sidelines, content creators became a part of the mainstream political media this year, delivering election news, analysis, and political commentary to their online fans—all while sidestepping the traditional press.
Eighty-one-year-old Joe Biden was serenaded on camera by the delightfully cringe TikTok singer Harry Daniels. Bernie Sanders stumped for Kamala Harris on a Twitch stream cohosted by an anime catboy VTuber. Donald Trump collabed with the quintessential creator brothers, Jake and Logan Paul. Instead of making time for traditional sit-down interviews with the mainstream press, Harris and Trump relied on creators to galvanize votes and spread their campaign messages.
“There’s just no value—with respect to my colleagues in the mainstream press—in a general election to speaking to The New York Times or speaking to The Washington Post, because those [readers] are already with us,” Rob Flaherty, deputy campaign manager for Harris, told Semafor in December.
Influencing has grown into a $250 billion industry. More than 70 percent of Americans between the ages of 18 and 29 say they follow an influencer on social media, a Pew Research survey found last year. A more recent survey, published in November, found that one in five US adults get their news from news influencers. That shift in media consumption was met with record spending on creator partnerships. Priorities USA put at least $1 million toward influencer marketing. The Harris campaign paid at least $2.5 million to management agencies that book creators for political advertising campaigns.
This election, creators were everywhere—the Republican and Democratic conventions, fundraisers, rallies, and even parties at Mar-a-Lago. But the foundations for this creator takeover of political messaging were propped up nearly a decade ago. In 2016, Trump showed how social media platforms like Twitter could influence voters. Throughout the 2020 election, former New York City mayor Michael Bloomberg spent more than $300 million on a presidential campaign that recruited influencers and meme pages as paid digital surrogates, and the Biden administration routinely invited creators to the White House for briefings.
By embracing creators, politicians have started blurring the lines between talking heads and journalists. Unlike reporters, news creators are often not beholden to editorial standards and substantial fact-checking—something that is one high-profile defamation lawsuit away from changing but that, for now, marks a difference. Many creators do work similar to what journalists do—absorbing, translating, and communicating news to audiences online. But in the online political ecosystem, many of them come off more as fans than as objective observers. Some are explicitly party activists. Still, they are often provided access similar to what the traditional press gets….
“Your candidate needs to become the creator; they need to find their niche and stick to it,” says Caleb Brock, a senior digital strategist for Democrats. “We need to find our 2028 presidential Hawk Tuah Girl—and I mean that seriously. Whichever candidate steps up and wields their respective, genuine personality into something that continuously pumps out content—content that people want to see, share, and engage with—will win.”
Adopting these tactics could be crucial to winning over young voters, millions of whom enter the electorate every four years. More than 8 million members of Gen Z entered the electorate in 2024, according to Tufts University. This year, 41 million of them were eligible to vote.
The industry hasn’t run up against much friction from the federal government either, despite criticism over its opaque nature. This year, the Federal Election Commission opted against requiring political influencers to disclose when a political group or campaign paid for content on their accounts.
“Because this is such a substantial part now of the information economy and information ecosystem, it’s absolutely vital that there are disclosures,” says Robert Weissman, copresident of the public interest group Public Citizen. “And just as disclosure is a core part of fair advertising law, it’s a core part of fair election law too.”…