Representative Andy Kim, a Democrat running for Senate in New Jersey against the state’s first lady, filed a federal lawsuit on Monday that seeks to redesign the ballot before June’s contentious primary election, arguing the current layout unfairly benefits candidates supported by party leaders.
The complaint aims to topple New Jersey’s longstanding ballot-design process, which is unique to the state, by asserting it violates the constitution and permits voters to be “cynically manipulated.”
The legal maneuver is a direct attack on the governor’s wife, Tammy Murphy, who is Mr. Kim’s chief opponent in the Democratic primary and is likely to benefit most from the way ballots have traditionally been designed in 19 of the state’s 21 counties.
And it is certain to intensify public debate over the use of “the line,” the preferential ballot position that allows party leaders to bracket their preferred candidates for all races in a prominent column or row. Unendorsed candidates appear off to the side, in a nearby row or at the ballot’s edge, a location commonly referred to as “ballot Siberia.”
Kenneth Chesebro, the right-wing attorney who helped devise the Trump campaign’s fake electors plot in 2020, concealed a secret Twitter account from Michigan prosecutors, hiding dozens of damning posts that undercut his statements to investigators about his role in the election subversion scheme, a CNN KFile investigation has found.
Chesebro denied using Twitter, now known as the platform X, or having any “alternate IDs” when directly asked by Michigan investigators last year during his cooperation session, according to recordings of his interview obtained by CNN.
But CNN linked Chesebro to the secret account based on numerous matching details — including biographical information regarding his work, family, travels and investments. The anonymous account, BadgerPundit, also showed a keen interest in the Electoral College process and lined up with Chesebro’s private activities at the time.
The Twitter posts reveal that even before the 2020 election, and then just two days after polls closed, Chesebro promoted a far more aggressive election subversion strategy than he later let on in his Michigan interview….
Chesebro claimed to investigators he saw the alternate slates of Republican electors only as a contingency plan to have ready in case the Trump campaign won any of its more than 60 lawsuits challenging the election results — which it didn’t. He also told Michigan investigators that in his conversations with the Trump campaign, he made clear that “state legislatures have no power to override the courts.”
But just days after the 2020 election, BadgerPundit tweeted that the court battles didn’t matter and that Republican-controlled legislatures should send in their own GOP electors, predicting even then that then-Vice President Mike Pence could use them to throw the election to Trump….
“You don’t get the big picture. Trump doesn’t have to get courts to declare him the winner of the vote. He just needs to convince Republican legislatures that the election was systematically rigged, but it’s impossible to run it again, so they should appoint electors instead,” wrote BadgerPundit on November 7, 2020, the day multiple media outlets, including CNN, called the election for Joe Biden.
Yet in his interview with Michigan investigators, Chesebro said the very opposite, claiming that the entire electors plan was contingent on the courts.
“I saw no scenario where Pence could count any vote for any state because there hadn’t been a court or a legislature in any state backing any of the alternate electors,” Chesebro said….
After the 2020 election, BadgerPundit tweeted more than 50 times that Pence had the power to count the electors benefitting Trump, according to a CNN KFile analysis of the account.
Chesebro also told investigators that he felt “misled” by the Trump campaign for concealing the entirety of their plan from him. He claimed that it wasn’t until last year that he fully realized the campaign had always intended to deploy the fake electors regardless of the outcome of its election lawsuits.
That idea was first raised in a September 2020 article in The Atlantic, which quoted a “Trump legal adviser” who described using alternate electors to overturn a Trump loss.
When asked by Michigan investigators if he had knowledge of The Atlantic article at the time it was published, Chesebro said he did not. Yet BadgerPundit tweeted about it the same day it was published and defended the plot.
Chesebro’s attorneys acknowledged in an interview with CNN that “there’s clearly a conflict” between some of his tweets and what he told Michigan prosecutors, and that some of the elector theories he embraced online were “inconsistent” with his subsequent legal advice to the Trump campaign.
Years ago at an APSA conference, Fred Schauer corrected me as pronouncing this with a Spanish pronunciation (“Torniyyo”) but the plaintiff was Italian and the “L’s” should be pronounced.
Arguments are just beginning, and at some point I’ll have to leave for class.
At this early point, it appears that Roberts, Sotomayor, Kavanaugh, and Kagan have all expressed great skepticism of these rules.
Justice Jackson pointed to some of the things that Facebook does that qualify as speech and some things that don’t. The questions suggest that at least some of the things that Facebook does are protected speech.
Kavanaugh asked if the antidistortion language in Buckley (saying government cannot equalize speech) and the precedent of Tornillo as to newspapers’ editorial discretion seems to doom this case.
Justice Thomas suggested that this should have not have been a facial challenge, which would be a way to duck deciding the merits in this case. So far, no other takers among the justices.
Justice Gorsuch asks about whether Section 230 preemption could dispose of parts of this case.
Justice Kagan made the same point I did in my recent Slate piece and in our brief about how when Musk took over, it changed the nature of the site. This shows content moderation is expressive:
It should be no surprise that after Elon Musk took over Twitter and changed its moderation policies to make the platform’s content less trustworthy and more incendiary, users and advertisers reevaluated the platform’s strengths and weaknesses, with many choosing to leave. Content moderation policies shape how the public perceives a platform’s messages. Content moderation decisions—including Musk’s, whether wise or not—are the exercise of editorial discretion. The public then decides which platforms to patronize, value, or devalue.
Justice Barrett, who had been quiet, suggests that platforms exercise editorial control like newspapers. More bad news for the Florida law.
[This post has been updated and corrected. It originally referenced Texas law.]
U.S. officials and experts are most concerned that Russia could try to interfere in the election through a “deepfake” audio or video using artificial intelligence tools or through a “hack and leak,” such as the politically damaging theft of internal Democratic Party emails by Russian military intelligence operatives in 2016.
The type of pro-Russia online propaganda campaigns that thrived on Twitter and Facebook ahead of the 2016 U.S. presidential election is now routine on every major social media platform, though it’s rare for individual accounts to go as viral now as they once did.
Those influence operations often create matching accounts on multiple sites, which vary drastically in their moderation policies. Accounts from one pro-Russia campaign that Meta, the owner of Facebook, cracked down on late last year, an English-language news influencer persona called “People Say,” are still live on other platforms, though some are dormant.