“Why There is No Ballot Access Problem for the Ohio Democratic Party Presidential Ticket”

Richard Winger of BAN reviews the caselaw and concludes: “Even though they are no precedents from Ohio, this uncontradicted list of precedents from other states is convincing evidence that when a ballot access law is eased, but the new law doesn’t take effect until after the old law had done harm to a particular party, as soon as the new easier law goes into effect, the beneficial effects do take effect.”

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“Trump asks judge to toss hush money conviction and dismiss case following Supreme Court immunity ruling”

ABC News:

Former President Donald Trump has asked a New York judge to dismiss his criminal hush money case and vacate his conviction on 34 felony counts by arguing the trial was “tainted” by evidence and testimony that the Supreme Court’s landmark ruling on presidential immunity now makes off-limits.

In a 52-page filing made public on the same day the former president was originally scheduled to be sentenced, Trump’s lawyers argued that prosecutors violated the Supreme Court’s immunity doctrine by using evidence related to official acts — including testimony from former White House aides– to fill “glaring holes in their case.”

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Elaine Karmack explains…

… the Democratic Party’s rules for what would happen if and when President Biden steps aside, on the latest episode of POLITICO Playbook’s Deep Dive podcast. (I assume ELB readers know of her expertise on this topic.) The discussion is useful especially for explaining that, if Democrats go forward with the planned virtual roll call before the convention, the convention delegates still would have the power to change the party’s nominee at the convention itself. (From what I have observed of media coverage of this topic, there’s been some confusion on this point.)

The discussion also helpfully reminded listeners of what happened in 1972, when the Democratic Party’s vice presidential nominee dropped out after the party’s convention, and the Democratic National Committee chose a new nominee, Sargent Shriver. As a matter of party governance, this post-convention power still exists. What’s different between 1972 and now is the timing of the party’s convention this year (very late in August) and state law deadlines for printing ballots with the nominee’s name (earlier, because of changing rules and practices concerning absentee voting). Still, if a party’s nominee changes after the ballots are printed, and the party’s ticket still wins the popular vote in a state, the party’s electors remains the same, and presumably the party’s electors vote for the party’s new nominee regardless of who is named as the party’s nominee on the ballot. I haven’t research how Chiafalo would apply in this situation, but if a state law mandated that a party’s electors voted for someone who was no longer the party’s nominee, just because that person was named as the party’s nominee on the ballot (before the party made its change), I would think that would raise a serious constitutional question.

Chiafalo itself, in footnote 8 of the Court’s opinion, flagged the possibility that the text of a state’s law might seemingly force the state’s electors to vote for person who died after winning a party’s nomination. The Court expressed hope that states would avoid any such situation. One would think that the same situation would apply if a person was no longer the party’s nominee for some other reason than death. For example, suppose in a revised version of the Eagleton-Shriver situation, Eagleton dropped out of the race after a state’s ballots were printed, but the DNC had replaced Eagleton with Shriver as the party’s vice presidential nominee–and had done so before the popular vote in November to appoint the state’s electors. Suppose, further, that the McGovern-Shriver ticket won the popular vote in a state even though the ballots in the state had McGovern-Eagleton listed as the party’s ticket. (I know that McGovern only won one state, plus DC, in 1972, but stick with the hypo for purposes of considering the relevant legal issue.) Imagine that the state’s law, as written, appeared to require the state’s electors to vote for Eagleton, rather than Shriver, for vice president, even though Eagleton had dropped out as the party’s vice presidential nominee and the party had replaced him with Shriver before the popular vote in November. Given the Court’s footnote 8 in Chiafalo, the canon of constitutional avoidance would lead to considering whether the state statute could be construed as requiring the state’s electors to cast their votes for the party’s new nominee, rather than the person named on the ballot who was no longer the party’s nominee. If the statute could not be construed to yield this result, it might well be deemed unconstitutional by the Court as preventing the state’s electors from voting for the party’s nominee.

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“EU charges Elon Musk’s X for letting disinfo run wild”


The European Union is calling Elon Musk to order over how he turned social media site X into a haven for disinformation and illegal content….

In its preliminary findings, the Commission said X’s platform so-called blue checks had misled users into thinking some content was trustworthy when it wasn’t necessarily.

The EU said X’s blue checks policy was deceiving and had been abused by malicious actors. The checks were initially created as as way to verify users like government officials, public figures and journalists, in efforts to limit misinformation, but Musk changed that policy, allowing users to buy blue check accounts. The new policy has been abused by fraudsters to impersonate U.S. politician Hillary Clinton and author J.K. Rowling, among many other celebrities.

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Open Letter from Scholars in Support of Fusion Voting

Here’s an excerpt from the letter, released yesterday:

With partisan polarization at dysfunctional highs, public faith in the political system hitting dangerous lows, and two unpopular presidential candidates competing in a high-stakes presidential election, Americans are rightfully worried about the future of our democracy. The good news is that growing concern has also widened discussion of much-needed fundamental reforms to our existing electoral system.

As concerned scholars and advocates for democratic reform, we urge legislative bodies across the country to re-legalize fusion voting in all partisan elections. “Fusion” voting denotes the ability of more than one party to nominate (with their consent) a candidate in an election, on a separate ballot line, with votes cast for the candidate on that ballot line counted separately and then incorporated into their total. This election rule has deep roots in American political history. We believe that its revival today would reinvigorate our democracy by improving representation and accountability while strengthening voters’ rights….

Fusion makes it more likely that voters disaffected with the current parties will exercise their right to associate with others and form new parties because it avoids the problem of election spoiling. It would reengage disenchanted voters, and their diverse organizations, and allow more party diversity. Reviving the option of fusion offers a path out of hardening destructive partisan polarization while aligning closely with the constitutional principles of free association and expression, foundational to the American creed….

Tabatha Abu El-Haj, Lee Drutman, and Lisa Disch led the drafting of this letter, which around 110 scholars have signed. Other signatories include Guy Charles, Kathy Cramer, Larry Diamond, Aziz Huq, Alex Keyssar, Steve Levitsky, Jane Mansbridge, Bertrall Ross, Nick Stephanopoulos, and Larry Tribe. (Disclosure: I’ve also joined.)

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Heritage Tries to Turn the Tables on Election Subversion

AP reports:

A conservative think tank that is planning for a complete overhaul of the federal government in the event of a Republican presidential win is suggesting that President Joe Biden might try to hold the White House “by force” if he loses the November election.

The Heritage Foundation’s warning — which goes against Biden’s own public statements — appeared in a report released Thursday that the group said resulted from a role-playing exercise gaming out potential scenarios before and after the 2024 election.

“The lawlessness of the Biden Administration — at the border, in staffing considerations, and in routine defiance of court rulings — makes clear that the current president and his administration not only possesses the means, but perhaps also the intent, to circumvent constitutional limits and disregard the will of the voters should they demand a new president,” the report reads.

More on this from WaPo, which includes this quotation from Mike Howell, Executive Director of Heritage’s Oversight Project: “I’m formally accusing the Biden administration of creating the conditions that most reasonable policymakers and officials cannot in good conscience certify an election.”

The AP quotes Rick’s response to the Heritage’s unfounded accusations: “This is gaslighting and it is dangerous in fanning flames that could lead to potential violence.”

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