A Fourth Circuit panel heard arguments Tuesday over whether the campaign committee for North Carolina’s Democratic attorney general should face criminal charges under a state law banning the spread of false information to damage a candidate’s shot at winning an election.
During the 2020 election for state attorney general, Democratic incumbent Josh Stein released a TV ad accusing his Republican challenger, Forsyth County District Attorney Jim O’Neill, of ignoring 1,500 untested rape kits in his district.
Following the release of the ad, O’Neill promptly filed a complaint with the North Carolina State Board of Elections. He asked its members to investigate the ad under an obscure state law that bars candidates from making false and derogatory statements about their opponent that would hurt their chances of winning.
A federal judge in Manhattan dismissed bribery charges against former Lt. Gov. Brian A. Benjamin of New York on Monday, saying prosecutors had not demonstrated an explicit quid pro quo in what they asserted was a scheme to funnel $50,000 in state money to a developer in exchange for campaign contributions.
In a 38-page opinion, the judge, J. Paul Oetken of Federal District Court, said that the government had a higher burden when accusing politicians like Mr. Benjamin of exchanging favors for political donations, rather than personal benefit. In Mr. Benjamin’s case, he concluded that prosecutors fell short, failing to show that the favor trading had been “clear and unambiguous” and mutually understood.
You can see the opinion in United States v. Benjamin here.
In Castro v. FEC, a pro se FEC-registered candidate for the 2024 presidential election challenged the FEC’s decision to accept Donald Trump’s candidacy for election, arguing that Trump is not qualified to serve. A federal district court just dismissed the complaint, finding that it has not caused the candidate any injury, and (perhaps more notably) the injury is not redressable because the FEC is not empowered to adjudicate a candidate’s qualifications. I pointed out last month that the FEC lacks jurisdiction to evaluate candidate qualifications.
The Supreme Court will hear arguments tomorrow about the scope of state legislative authority to determine “the time, place, and manner” of federal elections. Petitioners’ position is that state legislatures are freed from state constitutional constraints when they make decisions about where polling places are located, how many hours polls have to be open, the terms on which early or absentee voting is available, and—most importantly—how congressional districts are drawn. In making these choices, state legislatures, they argue, do not need to abide by state supreme court decisions interpreting their state constitutions.
Election lawyers, constitutional scholars, and interest groups from across the political spectrum have raised significant questions about this interpretation of the Elections Clause. They have questioned the practicality of this so-called Independent State Legislature Theory, and they have raised significant doubts about the evidence supporting Petitioners’ textualist and originalist claims. Petitioners have been chastised for relying on fake historical documents and for cherry picking quotes from famous nineteenth-century legal commentators.
Few, however, have highlighted the more profound ahistoricism of Petitioners’ position. Petitioners make much of the dearth of evidence of state court decisions striking down state legislation regulating federal elections. But they present no information about how elections were administered for much of the nineteenth century.
Indeed, a reader of the briefs—an earnest law clerk, for example—could easily be left with the impression that elections in the early nineteenth century worked essentially like they do today. Nothing could be farther from the truth. The kind of time, place, and manner regulation at the heart of Moore v. Harper largely did not exist until the late nineteenth century.
Elections through the late nineteenth century were shockingly informal by modern standards. While state constitutions set voter qualifications and residency requirements, there was very little by way of what we would call time, place, and manner regulations. Early elections were festive occasions in which voting took places over the course of several day, often with free drinks. In the early 1800s, states did intervene to replace viva voce voting with written ballots, and by 1868, American Legal Treatise writer, Thomas M. Cooley would assert that “[t]he mode of voting in this country, at all general elections, is almost universally by ballot.” Still, the process of voting was extremely rudimentary.
The first written ballots were simply pieces of paper upon which one recorded a vote. More importantly, even when handwritten written ballots were replaced with printed ballots, it was the political parties who handed them out to voters. Factions of the same party would provide different slates of candidates to voters on their competing paper ballots, and the state played no role in monitoring the process. A few cities eventually required parties to use a single-color paper when distributing ballots. Before 1870, even voter registration requirements were exceedingly rare. Where they existed, they simply required local officials to keep a list of eligible voters.
It was only in the late nineteenth century that state legislatures began in earnest to pass time, place, and manner regulations as we know them. State courts were quickly asked to review the constitutionality of the new laws by partisans. When they did, state courts applied the provisions of their state constitutions–and they did so without distinguishing between the applicability of their rulings to state as compared to federal elections.
An earnest reader of the briefs could just as easily come away with the impression that, like today, Congress was divided into single-member districts in the early nineteenth century and that states diligently redistricted each decade, as required by the Constitution. But it was not until the Apportionment Act of 1842 (yes 1842!) that single-member congressional districts were mandated. At the time of its enactment, there were twenty-six states in the Union. 10 states used at large voting for House elections. Petitioners offer no information about how often states actually redistricted before 1842 (or after). This silence is particularly glaring given that in the period prior to Baker v. Carr, despite the constitutional requirement, states frequently did not redraw their state or congressional maps. In the absence of such information, what exactly can be made of the fact that no state court appears to have invalidated a state legislature’s congressional map on substantive state-constitutional grounds?
Finally, this same earnest reader—this law clerk without a lot of historical background—could easily miss a very basic historical fact: Federal courts did not exercise general federal question jurisdiction, as we know it, until 1875—the end of Reconstruction. This is why state courts were the primary forum for resolving disputes in the nineteenth century.
Petitioners may have answers to the implications of these many historical differences. No doubt their fallback position to the last is that the critical issue is not which court exercised jurisdiction but what constitutional law they apply. But the fact that they have felt free to submit tens of pages of briefing with no mention of the profound institutional changes that have occurred with respect to the practicalities of both our electoral and our judicial systems is profoundly telling about the fundamental flaws of the law office history that drives originalism today.
Special counsel Jack Smith has subpoenaed local officials in Arizona, Michigan and Wisconsin — three states that were central to former president Donald Trump’s failed plan to stay in power following the 2020 election — for any and all communications with Trump, his campaign and a long list of aides and allies.
The requests for records arrived in Dane County, Wis.; Maricopa County, Ariz.; and Wayne County, Mich., late last week, and in Milwaukee on Monday, officials said. They are among the first known subpoenas issued by Smith, who was named last month by Attorney General Merrick Garland to oversee the Jan. 6 Capitol attack case as well as the criminal probe of Trump’s possible mishandling of classified documents at his Florida home.
The subpoenas, at least three of which are dated Nov. 22, show that Smith is extending the Justice Department’s examination of the circumstances leading up to the Capitol attack to include local election officials and their potential interactions with the former president and his representatives. The virtually identical requests to Arizona and Wisconsin name Trump individually, in addition to employees, agents and attorneys for his campaign. Details of the Michigan subpoena, confirmed by Secretary of State Jocelyn Benson, were not immediately available.
A sensible proposal in Arizona, to address a recent development in how some voters are casting their ballots:
Ducey said people who want to drop off their early ballots at polling places on Election Day should be able to have them opened and counted there along with those who actually vote that day. Now, counties send those “late early ballots” unopened to a central location where the signatures on the envelopes must be compared to those already on file.
Only after that happens are the envelopes opened and the votes tallied. That process, which can take days, occurs only after all other ballots are counted.
It’s a proposal that addresses the kind of concern raised by Nate Persily and Charles Stewart in the Wall Street Journal last month: “A mantra of election administrators is that “accurate is better than fast,” which is absolutely true. Still, quick counting of ballots is an international standard for well-run elections, and states with equally complex electoral systems are able to count ballots more quickly and just as accurately as the slowest states. In an era of suspicion among the losers about whether vote counts are on the up-and-up, speed must become a priority, without the loss of accuracy.”