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

campaign finance

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.

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“A group of Republicans has united to defend the legitimacy of US elections and those who run them”

election administration, election subversion risk

AP:

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?”…

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“Trump campaign sues Nevada for accepting mail ballots that trickle in after Election Day”

election administration

Nevada Independent:

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.

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“The Perennial Eclipse: Race, Immigration, and How Latinx Count in American Politics”

Voting Rights Act

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.

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“Georgia bill to strip QR codes from ballots would cost tens of millions of dollars”

voting technology

Votebeat:

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.”…

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