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.

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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… Continue reading