The Supreme Court Can No Longer Sidestep Considering January 6 and the Attempts to Subvert the 2020 Election

The Supreme Court was miraculously able to sidestep any grappling with attempts to subvert the 2020 presidential election in Trump v. Anderson, the case over whether Donald Trump was barred from serving as President again for encouraging an insurrection. The Court did not need to reach the issue of whether Trump’s actions qualified because they decided on technical grounds that states did not have the power of disqualification through removal from the ballot.

But the Court cannot sidestep the issues any longer, as they are coming to the Court’s April sitting. In the Fisher case, being heard on April 16, the Court will confront the question whether January 6 rioters could be charged with obstructing an official proceeding under a provision of the Sarbanes-Oxley act. The case turns on a technical issue of statutory interpretation—the meaning of the word “otherwise” in the statute—but in resolving the question it will be necessary to look at Fisher’s conduct as he invaded the Capitol, and how the Court discusses and characterizes the actions will be key.

Then, in the Trump immunity case being heard on April 25, the issues of Trump’s attempts to subvert the 2020 election will be front and center. Trump has been charged with a number of crimes related to his attempt to turn himself from an election loser into an election winner, and he’s arguing that he as a former president has absolute immunity from criminal prosecution for any official acts as President, even those that would be illegal for every other person in the country. One of the arguments that special counsel Jack Smith is making in response is that especially crimes related to trying to overturn the results of an election and interfere with the peaceful transition of power cannot be subject to immunity—with immunity, the Supreme Court simply gives a sitting president the power to use violence, intimidation, trickery, and any other crime to turn himself from an election loser into an election winner. That would be the end of democracy.

The Court has managed to stay out of this mess for the last 3+ years. Its free ride is over.

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“Supreme Court to weigh if Jan. 6 rioters can be charged with obstruction”

Ann Marimow for WaPo:

Defense lawyers say prosecutors overreachedby charging rioters with a crime that is limited to conduct that destroys or tampers with evidence sought by investigators. The government’s broad application of the statute, the lawyerswarned in court filings, would allow prosecutors to target protesters or lobbyists who disrupt congressional committees….

The Justice Department said there are no examples of prosecutors using the statute passed two decades ago to target such behavior, which is protected by the First Amendment. Government lawyers argue that the violent disruption of the peaceful transfer of power after a presidential election, including attacks on police officers, is no minor interference.

But the challengers’argument may be persuasive to some Supreme Court justices,several of whom have voted in past years to narrow the use of other laws they say were applied too broadly.One example is the high court’s unanimous 2016 decision to overturn the corruption conviction of former Virginia governor Robert F. McDonnell,in which the court expressed concern about prosecutors’ “boundless interpretation” of the federal bribery statute….\

Much of the discussion on Tuesday is expected to center on how to properly interpret the text of a statute Congress amended in 2002 as part of the Sarbanes-Oxley Act, which followed the Enron scandal. As the justices mull how narrowly or broadly prosecutors can apply the statute, the meaning of the word “otherwise” will play a central role.

The law includes a penalty of up to 20 years in prison for anyone who “corruptly — (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”…

All but one of the 15 judges overseeing Jan. 6-related cases in theD.C. federal courthousehave sided with the government on this question, ruling that the rioters who sought to keep Congress from certifying Biden’s victory were “otherwise” obstructing that proceeding. The outlier was U.S. District Judge Carl J. Nichols, a Trump nominee, who said the word “otherwise” refers only to other efforts to tamper with or destroy records or documents.

divided U.S. Court of Appeals for the D.C. Circuit reversed that ruling, which Judge Florence Pan — a Biden nominee — said was too narrow and at odds with the text of the statute. “We cannot assume, and think it unlikely, that Congress used expansive language to address such narrow concerns,” she wrote, joined in part by Judge Justin Walkerwho was nominated by Trump….

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Mike Johnson Plans to Introduce Legislation to Require Everyone to Provide Documentary Proof of Citizenship to Be Registered to Vote

What Speaker Johnson announced while standing next to Donald Trump at Mar-a-Lago is not too far off from what I predicted, though it is even more draconian.

It’s not necessary, would disenfranchise many voters if it passed, and is extremely unlikely to pass.


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“Election Data Is Vital to Voting Rights. So Why Is It So Hard to Track Down?”


And the problem extends far beyond New York. Precinct-level election data underpins a world of election analyses. It’s a foundation for Voting Rights Act lawsuits throughout the country. Proving how badly maps are gerrymandered is impossible without this data, since it’s needed to assess districts’ partisanship. It’s also used to make all sorts of mapsgraphics and tools of neighborhood partisan trends. And combining precinct partisanship data with demographic, geographic and income data is used to address a wide range of political science questions, including showing that voter fraud claims in the 2020 election were unfounded

Yet there is no entity in the United States that records election returns or maintains boundary maps for the country’s 180,000 precincts. Many states don’t even provide this data for the full collection of precincts within their borders. Instead, universities, newsrooms, nonprofits and volunteers collectively spend thousands of hours after every major election gathering it themselves. 

It’s a Herculean task for organizations that are often short on time and resources, and leaves the people who need precinct data at the mercy of individual county or local election offices whose data quality varies drastically. It also burdens underfunded election officials who are inundated with repeated requests for the same data. …

Some states make this process a lot easier than others. For example, Minnesota’s secretary of state’s office posts the entire state’s precinct-level election results together on its website; it also provides digital maps of precinct boundaries, called shapefiles

The variation between states was captured in dramatic visual form in a project published by The New York Times after the 2020 election. A team of journalists, data scientists, and developers set out to produce a map of U.S. precincts, color-coded by how each voted. 

Four states on the map—Alabama, Alaska, Louisiana, and Virginia—are completely blank, as are large swaths of Idaho, Missouri, Kentucky, and Louisiana.

It took The Times three months of full-time data and software development work to assemble the data after the election, plus months of preparation ahead of election night, according to Miles Watkins, who helped manage the project. “As of when we published the nationwide map, I feel pretty confident that we were using every single piece of open data or FOIA-able information that we could,” he told Bolts. But even with that effort, one of the best-staffed publications in the nation wasn’t able to obtain the data to complete the map. 

Ultimately, over 10 percent of all votes cast in the election weren’t pictured in the map.

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Donald Trump and Mike Johnson Set for Announcement Today Supporting Some Bill To Prevent Non-Citizens From Voting, a Non-Problem in the U.S. Will It Be Pence-Kobach II, Allowing States to Require Documentary Proof of Citizenship Before Registering to Vote?

USA Today reported yesterday that Speaker of the House Mike Johnson is making a pilgrimage to Mar-a-Lago to join former President Trump to promoted a bill “aimed at preventing non-citizens from voting.” Details of the proposal so far are elusive.

This is of course just fodder to feed the false claims of massive voter fraud that have infected Donald Trump’s statements about elections every time he has lost and sometimes even when he has won. As Aaron Blake reported back in 2017, when Trump won the election but lost the popular vote to Hillary Clinton in 2016 by about 3 million votes:

A lingering question when it comes to Donald Trump’s baseless claims of massive voter fraud has been whether it could call into question his 2016 win. After all, if it’s possible that 3 to 5 million illegal votes were cast, as Trump alleges, isn’t it possible that such massive fraud could have also helped him? He won by about 80,00 votes in the three states that mattered.

No, says Trump. In fact, zero illegal votes were cast for him, he told ABC News’s David Muir in an interview airing Wednesday night.

“Of those votes cast, none of ’em come to me. None of ’em come to me. They would all be for the other side. None of ’em come to me,” Trump said.

He added later: “Those were Hillary votes. And if you look at it they all voted for Hillary. They all voted for Hillary. They didn’t vote for me. I don’t believe I got one. Okay, these are people that voted for Hillary Clinton.”

In the 2016, there were not 3 million, or 300,000, or 30,000, or 3,000, or 300 cases of noncitizen voting found after extensive voting. The number was maybe around 30 potential cases nationally according to the Brennan Center.

That didn’t stop Trump from creating the Pence-Kobach commission to “investigate” claims of noncitizen voting and to propose recommendations. As I detail in my book, Election Meltdown, the purpose appeared to be to provide enough smoke to pass a federal law allowing states to require documentary proof of citizenship before they can vote.

When Kobach tried to defend such a law in Kansas in federal court, he lost badly (he was even sanctioned). He claimed the amount of voter fraud in Kansas was just the tip of the iceberg, but the Republican appointed judge hearing the case found no such evidence. As I wrote in Election Meltdown:

In an opinion issued a few months after the trial, Chief Judge Robinson found that Kansas’s documentary proof of citizenship law imposed a serious burden on the state’s voters. She credited the testimony of plaintiffs’ expert Michael McDonald that the burden fell most heavily on the young and those unaffiliated with a political party, and she noted that tens of thousands of Kansans had had their voter registration applications put on hold or rejected.20

She further concluded that the burden on these would-be voters was unjustified. There was likely a minuscule amount of noncitizen voting in Kansas, but the few reports of potential noncitizen voting were more likely the result of administrative error or misunderstanding of the law than attempted felonies. “Evidence that the voter rolls include ineligible citizens is weak. At most, 39 [non]citizens have found their way onto the Kansas voter rolls in the last 19 years. And, as [plaintiffs’ expert] Dr. [Eitan] Hersh explained, given the almost 2 million individuals on the Kansas voter rolls, some administrative anomalies are expected. In the case of Kansas, this includes 100 individuals in [the state database] with birth dates in the 1800s, and 400 individuals with birth dates after their date of registration.”

“There is no iceberg,” the judge concluded, “only an icicle, largely created by confusion and administrative error.”

I would not be surprised to see a revival of this proposal.

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