Freeman hired a lawyer, though it wasn’t clear what could actually be done. But, in 2021, the lawyer was approached by a nonprofit called Protect Democracy. The group had been founded a few years earlier by former lawyers in the office of the White House counsel during the Obama Administration. Protect Democracy, which now has more than a hundred employees and a budget of thirty million dollars, aims to defend America from authoritarianism; it has worked on a range of litigation, legislation, research, communications, and software projects—including VoteShield, a platform now monitoring the integrity of voter-registration data in two dozen states—and has successfully advocated for changes to election laws. One of its founders, Ian Bassin, was recently given a MacArthur “genius” grant. But P.D. has often pursued its goals in novel ways. It has recently begun to use defamation law—which was designed to protect against reputational damage rather than authoritarian takeover—to fight against the flood of disinformation. If the group sued the right liars, its members believed, they could stop dangerous lies from spreading. The strategy has concerned some free-speech advocates. But Bassin believes that targeted defamation suits can “produce a systemic rebalancing of incentives to advance truth.” In late 2021, Protect Democracy sued Giuliani, and a half dozen others, for defamation of Freeman and Moss. Freeman, who often quotes from the Bible, told me that she felt like an underdog in the fight. “I think about David and his slingshot,” she said. “He had five smooth stones.”…
As this was unfolding, P.D. was working on what it called its “Law for Truth” strategy. “We could see the dominoes,” Rachel Goodman, a former A.C.L.U. attorney, who heads the Law for Truth project, told me. A relatively small number of individuals and media outlets, she explained, account for most election-related disinformation online. According to one study, more than half the retweets of the forty-three most prominent false or misleading stories about voting, prior to the 2020 election, originated from three dozen users. Since 1964, the protective standard in libel law has been “actual malice”: if you could show that someone had willfully lied or recklessly spread mistruths, and damaged a reputation in the process, you might hold him legally responsible. “The idea of getting accountability for people defamed as part of the Big Lie was really interesting,” Goodman said….
If there’s a center-left consensus on the perils of democratic instability at the moment, it does not extend to P.D.’s use of defamation law. Some of the pushback concerns free speech. “This kind of litigation may make liars more cautious,” Eugene Volokh, who teaches First Amendment law at U.C.L.A., told me. “But the good chilling effect on lies and the bad chilling effect on truths walk hand in hand.” In an age of incipient authoritarianism, it’s especially important that speech protections be broad, critics say, so that news organizations are not afraid of reporting on what they believe to be true. Fox invoked free speech in a recent counterclaim against Smartmatic, saying that its lawsuit is “designed to serve as a warning to others to think twice before exercising their own free speech rights.” In January, a judge allowed Fox to advance its claim. Nora Benavidez, a free-speech attorney in Atlanta, explained, “Going after the purveyors of disinformation must be very carefully done so we don’t develop case law that ultimately undermines free speech—which, by its very nature, includes lies.”
Samantha Hamilton, an attorney at the University of Georgia Law School’s First Amendment Clinic, told me that defamation law was a deficient tool in the fight against disinformation because the biggest lies, such as “The election was stolen” or “Vaccines don’t work,” typically don’t cause reputational harm to a specific individual. “Defamation really doesn’t have a role to play,” she said. Bassin defends the project’s results so far. Ten days after OAN was served with the lawsuit, DirecTV informed OAN that it would not renew the network’s contract that spring. Bassin acknowledged that several factors were at play but told me, “Our complaint was the straw that broke the camel’s back.” Soon after, Verizon also cut ties with OAN. “As a result of us filing, there’s a good case to be made that OAN lost access to a quarter of U.S. households with TVs,” Bassin said. (A spokesperson for DirecTV told me that its decision was primarily financial.) Still, as Benavidez pointed out, even millions in damages might have little long-term effect on behemoths like Fox. “It’s just the cost of doing business now,” she said.
Behavioral experts have also found that most people tend to discount or reframe new information, like legal verdicts, that don’t fit into their belief systems. This form of cognitive bias complicates the problem of disinformation and potentially undermines attempts to fix it with verdicts. “If we’re expecting defamation law to do much of the heavy lifting in solving a complex issue like disinformation, I think we’re expecting too much,” Hamilton said. During the Giuliani trial, I noticed an audience member in the courtroom, a lawyer named Fletcher Thompson, who seemed distressed. During a bathroom break, I approached him. After days of testimony, he was still convinced that Biden had stolen the election. “I can see what happened,” he told me. “I make my own inferences. I think there was a plan to do this.”
Law for Truth plans to file more suits in the coming months. Ultimately, though, Bassin and his colleagues understand that P.D.’s impact has limits. Democracy is neither a natural system nor an easy one to maintain…
All posts by Rick Hasen
“A flyer in her name told migrants to vote for Biden. But she says she didn’t write it”
NPR deep dive into a story previously featured on ELB from the NYT:
Zavala said a “blanket of fear” fell over her in the days after the flyers went viral.
“I didn’t know how to respond. I didn’t know if I should respond,” Zavala said. “If I say something, is it going to fuel the fire more? Will this cause more death threats?”
She shut down her social media accounts as the hateful messages kept coming.
She said it bothered her that no one publicizing the flyer on social media or in Congress had checked with her about whether she or anyone at RCM had written it.
“They never cared to call me and find out whether it was true or not,” Zavala said. “I mean, that really is, you know, an attack on my character as a person.”
Rubin told NPR that it “certainly occurred to me” to ask RCM to verify the flyer when he visited, but he didn’t want to bring attention to himself because he said he had previously been kidnapped by the Gulf Cartel near there. “I need to maintain a low profile here because I am in enemy territory. The cartel literally told me, ‘Never come back here again.'”
Howell, a former attorney for the Department of Homeland Security, acknowledged that the Oversight Project did not reach out to Zavala before publishing the X thread because “it was in the immediate public interest to know about the invasion in the United States.” He added, “Would the United States reach out to the CCP [Chinese Communist Party] to verify intelligence about them flooding fentanyl into this country? Of course not.”
Howell noted that the Heritage Foundation’s news outlet, The Daily Signal, sought comment from Zavala after the thread was published. The first story that The Daily Signal published about the thread, on April 15, does not mention seeking comment from Zavala; only the second story, on April 16, does. The second story says Zavala didn’t respond to The Daily Signal.
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Zavala said there are a number of clues that suggest the flyer was not written by her or anyone at RCM.
It contains errors, such as “Bienvedinos” instead of “Bienvenidos” (Welcome). Zavala is not a native Spanish-speaker, but she said she checks the grammar and spelling of what she writes in Spanish.
Whoever made the flyer relied heavily on RCM’s English-language website, which has dated posts that stop after 2021. Zavala said she has not had the time or resources to update it.
The flyer lists a defunct phone number that Zavala said she hasn’t used in years but is still listed on the website.
The first two sentences of the flyer appear to be an old description of the organization copied directly from the website and run through Google Translate into Spanish. It mentions that HIAS shares the office, an arrangement that ended in 2022, according to both groups.
The next two sentences, which remind readers to vote for Biden when they get to the U.S., are written in a different style and are riddled with more errors than the previous ones. That section translates “United States” as “estados unidos,” without the usual capitalization, while the previous section uses the abbreviation “los EE. UU.”
There are also inaccuracies in the X thread. The thread says the site where the video shows the flyers is a “Resource Center Matamoras (RCM) location.”
But RCM has not staffed the site for years, which was also confirmed to NPR by people from other local nongovernmental organizations who work with migrants. Glady Cañas of Ayudándoles a Triunfar and Andrea Rudnik of Team Brownsville both told NPR that there is no longer a formal camp at that site.
NPR visited the site and saw an informal encampment with a small number of migrants staying there, but did not see any evidence of the flyers. Anyone can access the encampment, which is in a city park along the banks of the Rio Grande.
You Can Pick Up at 50% Off All of My Yale University Press Books, Including Cheap Speech and Election Meltdown, Until May 17
“Are R.F.K. Jr. Signature Gatherers Misleading New Yorkers for Ballot Access?”
Amy Bernstein, a traffic court judge in Brooklyn, was heading home from work one night in late April when, she said, a young man carrying a clipboard approached her on the subway platform, asking if she would sign a petition to help place independents on the ballot in New York.
The top of the petition was folded underneath itself, so that the names of the candidates were not visible, Ms. Bernstein said. She asked for more details and told the man she was a judge — at which point he yanked the clipboard away, she said, and asked: “Am I going to get in trouble?”
The petition was for Robert F. Kennedy Jr.’s independent presidential campaign, which is working to collect the signatures needed to secure a spot for him on the November ballot in New York State. The campaign needs 45,000 but is aiming for more than 100,000. Candidates often collect far more signatures than they need in case some end up being invalidated for various reasons.
“At a minimum, it’s misleading,” Ms. Bernstein said of the interaction. “I was just pretty much taken aback.”
More than a half-dozen New York City residents, including two who are journalists at The New York Times and were approached randomly, have described similar encounters with signature gatherers for Mr. Kennedy in Brooklyn over the past three weeks. In each case, the resident was approached by a clipboard-wielding petitioner and asked to support “independent” or “progressive” candidates, or, in one case, to help get Democrats and President Biden on the ballot.
In three cases, the petitioners said that they were being paid for the work, the people who were approached said; in four cases, the petitioners said they had been told by a supervisor not to show or mention Mr. Kennedy’s name. Descriptions and photographs of the petitioners suggest that they are at least four different people. The petitioners themselves could not be identified or reached for comment.
“Henry Cuellar Indicted Over Bribery Scheme”
Missed this story (and the Illinois one Derek flags) while traveling:
Representative Henry Cuellar, a Texas Democrat in a crucial swing district, and his wife were charged with participating in a yearslong $600,000 bribery scheme involving Azerbaijan and a Mexican bank, according to a federal indictment unsealed in Houston on Friday.
The accusations against Mr. Cuellar, 68, and his wife Imelda, 67, center on allegations of bribery and money laundering in connection with their efforts on behalf of an oil and gas company owned by Azerbaijan’s leaders as well as an unnamed bank based in Mexico City, according to the 54-page complaint.
Mr. Cuellar, a Laredo native first elected in 2004, is also accused of acting as an agent of a foreign entity while a U.S. government official — by delivering a speech favoring Azerbaijan in Congress and inserting provisions into aid bills to benefit those who were paying bribes to his family.
I wonder how a Speech or Debate Clause defense might figure into claims based on delivering a speech in Congress.
Irony Alert
North Dakota Gov. Doug Burgum on Sunday supported the election fraud allegations made by former President Donald Trump, claiming on CNN: “I think it’s clear that there’s vote-buying going on at a scale like we have never seen before.”…
Trump, never shy about alleging uncorroborated malfeasance by Democrats, said his rivals use “welfare” as an enticement to get people to vote for them. “Don’t underestimate welfare. They get welfare to vote, and then they cheat on top of that — they cheat,” Trump said in his remarks on Saturday.
Burgum didn’t endorse the idea that everyone receiving public assistance is being bribed to vote (“I don’t think that’s the intention that he meant when he said that”) but then circled back to the idea of vote-buying, citing President Joe Biden’s efforts to partially forgive some student loan debt.
“You start trying to give away hundreds of billions of dollars of taxpayer money, and it’s not even — it’s like we’re borrowing to give it away. It’s not tax and spend. It’s borrow, borrow from the Chinese, and give it away,” he said.
Burgum added: “Citizens understand those are like preelection payoffs. Those are like, hey, folks, please vote for us because we’re relieving your debt. So at what point does it cross over, programs like student debt, to just vote-buying?” He then answered his own question, saying he saw this as an unprecedented effort at obtaining votes.
A two-term governor, Burgum was part of the 2024 Republican presidential field until dropping out in December. In July 2023, in order to meet the threshold of individual donors each candidate needed to participate in the GOP’s first debate, Burgum announced a campaign to reward individual donors with $20 gift cards.
“Doug knows people are hurting because of Bidenflation and giving Biden Economic Relief Gift Cards is a way to help 50,000 people until Doug is elected President to fix this crazy economy for everyone,” spokesperson Lance Trover said at the time….
“Sen. Tim Scott dodges on whether he would accept 2024 election results”
South Carolina Sen. Tim Scott on Sunday did not directly answer multiple questions about whether he’d accept the results of the 2024 presidential election, regardless of who wins.
“At the end of the day, the 47th president of the United States will be President Donald Trump,” Scott, a Republican, said the first time he was directly asked whether he would commit to accepting the election results on NBC News’ “Meet the Press.”
Asked again by moderator Kristen Welker to answer, “Yes or no?” to the original question, Scott simply said, “That is my statement.”
Pressed a third time to answer the question, Scott said, “I look forward to President Trump being the 47th president — the American people will make the decision.”
Earlier this month, Trump himself told the Milwaukee Journal Sentinel that he would only accept the results of the presidential election in Wisconsin “if everything’s honest.”
“If everything’s honest, I’d gladly accept the results,” he said, adding, “If it’s not, you have to fight for the right of the country.”
“Top RNC lawyer resigns after rift grows with Trump”
WaPo on the campaign losing the adult in the room:
The top lawyer at the Republican Party is resigning after he cited conflicts with his other work obligations and after Donald Trump grew angry about his criticism of the former president’s false claims that the 2020 election was stolen, people familiar with the situation said Saturday night.
The lawyer, Charlie Spies, is a long-respected GOP election operative who was hired by Trump’s top lieutenants in March after the former president engineered a takeover of the Republican National Committee, which in recent years has been the party’s main operation in both fundraising and field operations.
Trump had approved of the hiring but later learned about additional comments the lawyer had made. Spies in the past had worked for, either directly or indirectly, former Florida governor Jeb Bush (R), Sen. Mitt Romney (R-Utah) and Florida Gov. Ron DeSantis (R). He was liked by Trump’s top advisers, who orchestrated his hiring even though they knew he was skeptical of Trump’s false claims of a stolen election….
Spies had been tasked with leading the party’s vast legal spending and election integrity program, and his hire was viewed as a sign Trump’s RNC could attract significant party talent.
Trump aides had worked to save Spies from being ousted after learning Trump was angry about his previous comments. They’re trying to convince Trump that Spies was a stronger election lawyer than others and to forgive the comments, said people familiar with the matter, who spoke on the condition of anonymity to describe private conversations. He was viewed as close with LaCivita and Susie Wiles, Trump’s two top aides….
Spies has also repeatedly defended the presidential election system as being nearly impossible to rig, citing the broad distribution of authority in managing elections. During a 2021 appearance at the Conservative Political Action Conference, he said correctly that allegations of widespread voting machine error in Michigan were false and that repeated recounts in Georgia had failed to show any voter fraud in the 2020 race there.
“Let’s win the elections, and not get worried about things that aren’t true,” he said at that event.
Trump May Have Some Good Arguments on Appeal in the Hush Money Case If Convicted, But Steven Calabresi is Likely Very Wrong That Donald Trump Would Have a Good First Amendment Defense
I’ve been critical of the NY district attorney seeking to turn the Trump falsifying business records charges into felony charges in the hush money case now on trial in NY. To turn the misdemeanors into felonies, Trump had to be falsifying the business records to further or conceal “other crime.” The three potential baskets of other crimes are (1) violations of the federal campaign finance law (paying campaign expenses with corporate funds, making it an impermissible corporate campaign contribution, failing to disclose the payments, and lying about the payments as legal expenses); (2) violations of a state election law against influencing an election by unlawful means; and (3) violations of state tax law.
Among other things I noted:
Trump also may have serious grounds for appeal in the New York case. It is far from clear that appellate courts would treat the hush money payments as legitimate campaign expenses that needed to be reported, as opposed to personal expenses. And it is uncertain that failing to report a campaign expenditure required by federal law can be a violation of New York state election law against promoting “the election of any person to a public office by unlawful means.” These issues may well have to be sorted out by higher courts.
The trial court rejected these arguments in an order before trial, but I expect they will be back on appeal. I also am uncertain if the trial court will require proof to commit or conceal the other crime beyond a reasonable doubt, which seems like it should be required. And I’ve written about my concern about the apparently novel use of the state election law to go after Trump. If the only unlawful means is a federal campaign finance violation, it’s not clear how that could could as “unlawful means” under state law. The state court inexplicably called this a law against “voter fraud and ballot theft” which don’t seem implicated in this case.
So those arguments have a chance on appeal. Aside from those, Steven Calabresi argues that Trump has a First Amendment right to make hush money payments without disclosure, adding: “All that Donald Trump has to do to get any verdict against him overturned is to insist that the predicate felony, which NY alleges he was concealing is not a crime under the Constitution because the First Amendment trumps campaign finance law (pun intended). To the extent that Buckley v. Valeo sustains any such campaign finance violation, Trump should ask the U.S. Supreme Court on his ultimate appeal to overrule Buckley v. Valeo.”
Let’s put aside the state tax law (and maybe the state election law) and focus on the FECA violation. Trump under the FECA theory could have been charged with causing illegal corporate contributions to the campaign and with violating federal campaign finance disclosure laws. For Calabresi to be right, there would have to be a First Amendment right of candidates not to disclose their campaign expenses truthfully. I don’t think even most opponents of disclosure of contributions would find a First Amendment right of candidates to spend money in campaigns without disclosing them. Such payments help deter corruption, inform voters, and help enforce other campaign finance laws. And the Supreme Court in the 2004 case of FEC v. Beaumont has upheld the ban going back to 1910 on direct corporate contributions to candidates. Without such a ban, someone could simply evade individual contribution limits by creating an unlimited number of corporations. The Supreme Court has repeatedly refused to reconsider the Beaumont case even though other aspects of its reasoning have been undermined by subsequent rulings.
In short, Donald Trump may have some potent argument if he’s convicted and loses on appeal, but the First Amendment is not likely one of them.
“A group of Republicans has united to defend the legitimacy of US elections and those who run them”
Sterling, the chief operating officer for the Georgia Secretary of State’s Office, is part of an effort begun after the last presidential election that seeks to bring together Republican officials who are willing to defend the country’s election systems and the people who run them. They want officials to reinforce the message that elections are secure and accurate, an approach they say is especially important as the country heads toward another divisive presidential contest.
The group has held meetings in several states, with more planned before the Nov. 5 election.
With six months to go before the likely rematch between Democratic President Joe Biden and former Republican President Donald Trump, concerns are running high among election officials that public distrust of voting and ballot counting persists, particularly among Republicans. Trump, the presumptive GOP nominee, continues to sow doubts about the last presidential election and is warning his followers — without citing any evidence — that Democrats will try to cheat in the upcoming one.
This past week, during a campaign rally in Michigan, Trump repeated his false claim that Democrats rigged the 2020 election. “But we’re not going to allow them to rig the presidential election,” he said.
Just 22% of Republicans expressed high confidence that votes will be counted accurately in November, according to an Associated Press-NORC Center for Public Affairs Research poll last year.
“It’s an obligation on Republicans’ part to stand up for the defense of our system because our party — there’s some blame for where we stand right now,” said Kentucky’s secretary of state, Michael Adams, who is part of the group and won reelection last year. “But it’s also strategically wise for Republicans to say, ‘Hey Republicans, you can trust this. Don’t stay at home.’”
The effort, which began about 18 months ago, is coordinated by the SNF Agora Institute at Johns Hopkins University and the center-right think tank R Street Institute. The goal has been to start conversations about trust in elections, primarily among conservative officials, and to develop a set of principles to accomplish that.
“This has never been and will never be about Trump specifically,” said Matt Germer, director of governance for the R Street Institute and a lead organizer of the effort. “It’s about democratic principles at a higher level –- what does it mean to be a conservative who believes in democracy, the rule of law?”…
“Trump campaign sues Nevada for accepting mail ballots that trickle in after Election Day”
The Trump campaign and its allies filed a lawsuit Friday challenging a Nevada law allowing elections officials to accept mail ballots for up to four business days after Election Day, as long as they are postmarked before polls close.
The lawsuit alleges that the four-day period for mail ballots to be received violates federal law because it does not conform to the Election Day deadline established by the federal government. Attorneys for the plaintiffs, which include the Republican National Committee and the Nevada Republican Party, argue that the law establishing the ballot timeline is therefore “unlawful and must be enjoined.”
“The result of Nevada’s violation of federal law is that timely, valid ballots are diluted by untimely, invalid ballots, which violates the rights of candidates, campaigns, and voters under federal law,” attorneys wrote in the lawsuit filed in federal district court in Nevada.
I expect this lawsuit to fail like the others raising similar claims around the country. The point of these suits appears to be to make it look like the RNC is doing something about claimed fraud and irregularities.
“The Perennial Eclipse: Race, Immigration, and How Latinx Count in American Politics”
Rachel Moran has written this article for the Houston Law Review. Here is the abstract:
In 2016, the U.S. Supreme Court decided Evenwel v. Abbott, a case challenging the use of total population in state legislative apportionment as a violation of the Equal Protection Clause. The
plaintiffs sued Texas, alleging that the State impermissibly diluted their voting power because they lived in areas with a high proportion of voting-age citizens. When total population was used to draw district lines, the plaintiffs had to compete with more voters to get their desired electoral outcomes than was true for voters in districts with low proportions of voting-age citizens. The Court rejected the argument, finding that states enjoy the discretion to choose among different population bases, including total population.
Since the Evenwel decision, there has been ongoing interest at both the federal and state levels in using alternatives such as citizen voting-age population (CVAP) to apportion representation. So far, the lack of accurate data on citizenship status has stymied these efforts. Even so, the issues in Evenwel deserve more attention than they have received. The choice about how to count when redistricting can have significant ramifications for both partisan power and minority voices. The litigation reveals the ways in which demographic change, especially the rise of immigrant populations, has tested the efficacy of a voting rights jurisprudence that largely focuses on citizens.
After describing the lawsuit and its aftermath, this Article turns to CVAP’s potential impact on political representation. The discussion first draws on the work of law professors Joseph Fishkin and Ilya Somin, both of whom conclude that alternative forms of representation significantly mitigate the shortcomings of the formal electoral process. Professor Fishkin focuses on virtual representation of those unable to vote, while Professor Somin emphasizes foot voting to express individual preferences. This Article suggests the limits of these strategies, especially for the undocumented, and then examines the issues from the perspective of immigrant integration. While most immigrants who are legally present in the United States eventually will be eligible to cast a ballot, those without legal status remain disenfranchised no matter how long they reside in and contribute to their communities.
For that reason, it is important to address how a switch to CVAP will affect the political representation of minority communities with substantial numbers of immigrants. This Article’s concluding section shows how this change might violate Section 2 of the Voting Rights Act if adopted in Texas. Redrawn maps could result in voter denial if large districts in areas with
high proportions of noncitizens depress minority turnout. Under a totality of the circumstances test, altered district lines would be particularly vulnerable because of Texas’s history of electoral discrimination, ongoing racial and ethnic disparities, and continuing polarization. The shift could also lead to impermissible voter dilution. Empirical data reveals that Texans remain deeply divided along both partisan and racial lines. Using CVAP instead of total population would strengthen non-Hispanic white and Republican representation while weakening Latinx and Democratic representation. Those effects would be pronounced and, therefore, should be subject to the most exacting judicial scrutiny. Otherwise, a purportedly race-neutral choice about population count could be manipulated to suppress minority voters’ influence. By considering how the exclusion of those ineligible to vote will harm the minority electorate, courts can retool and revitalize Section 2 jurisprudence to meet the challenges of a changing demography.
“Georgia bill to strip QR codes from ballots would cost tens of millions of dollars”
Tucked inside a massive elections bill passed last month by Georgia’s legislature is a provision that requires the state to spend millions of dollars to overhaul the state’s existing voting system, or to purchase a new one before 2026.
Election officials and experts say it’s an impossible timeline, and that the vague language of the bill may prevent the use of electronic tabulators altogether. Lawmakers allocated no money for the change, which would remove computer-readable QR codes and other barcodes that the state’s voting system relies on to accurately tabulate ballots.
“We’re talking about an expense of about $25-to-$26 million, to about $300 million, depending on how you want to do it,” Gabe Sterling, the chief operating officer in the secretary of state’s office, told the House Governmental Affairs Committee on March 20, eight days before the bill passed the House. If lawmakers wanted to proceed, Sterling told them, they should write the legislation to make the changes contingent on appropriating enough money to pay for them, and move the effective date back to give election officials more time.
Lawmakers have already pushed the effective date back two years — from 2024 to 2026 — but did not make the change contingent on providing funding. So if the governor signs the bill now, it’s not clear where election officials will get the money.
The ban on computer-readable codes made headlines when the bill passed, but the cost — which legislators have known about for months — has not been previously reported.
The legislation would make the state’s current voting system, put in place in 2020 at a cost of more than $100 million, impossible for the state to use. Sterling says that if the governor signs it, Georgia will spend millions of dollars “to achieve absolutely nothing.”…