My New One at Slate: “Jack Smith’s Big New Jan. 6 Brief Is a Major Indictment of the Supreme Court”

election subversion risk, Supreme Court

I have written this piece for Slate. It begins:

It’s rare to simultaneously feel red hot anger and wistfulness, especially when merely reading a document. But that’s exactly the emotions that washed over me when I read the redacted version of special counsel Jack Smith’s brief reciting in detail the evidence against Donald Trump for attempting to subvert the 2020 election. The anger is at the Supreme Court for depriving the American people of the chance for a full public airing of Donald Trump’s attempt to use fraud and trickery to overturn Joe Biden’s 2020 presidential victory before voters consider whether to put Trump back in office beginning January 2025. The wistfulness comes with the recognition that there is about an even chance that this will be the last evidence produced by the federal government of this nefarious plot. If Donald Trump wins election next month, the end of this prosecution is certain and the risks of future election subversion heightened….

Right now it appears to be a tossup whether Trump or Vice President Kamala Harris will win office in the November election. If Trump wins, he will have his attorney general fire Smith and shut down this prosecution. If he keeps his promises, he even may seek to investigate and prosecute Smith, Harris, Biden, and others. There is a risk of authoritarianism down the line.

The fact that no jury may pass on the deadly serious allegations in Smith’s complaint will do more than simply let Trump and others off the hooks for their potential crimes. It will make future criminal activity related to American elections much more likely. And it all could have been avoided if McConnell, Garland, and especially the Supreme Court did the right thing.

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Breaking: Federal District Court Issues Preliminary Injunction Barring Enforcement of California Law Against Election-Related Deepfakes

cheap speech

You can read the 21-page opinion at this link. The key point from the judge is the view that counterspeech is a more narrowly tailored alternative to the regulation of political speech.

I agree with the lower court that California’s law is likely unconstitutional—mainly because of its treatment of “parody” and “satire” as different from other speech. However, the judge’s opinion here lacks naunce and recognition that a state mandatory labeling law for all AI-generated election content could well be constitutional. (I make this argument in some depth in by 2022 book, Cheap Speech). I fear that the judge’s meat-cleaver-rather-than-scalpel-approach, if upheld on appeal, will do some serious harm to laws that properly balance our need for fair elections with our need for robust free speech protection.

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“Court says betting on U.S. congressional elections can resume, for now”

Uncategorized

AP:

Betting on the outcome of U.S. Congressional elections can resume, at least temporarily, a federal appeals court ruled Wednesday.

The U.S. Court of Appeals for the District of Columbia Circuit dissolved an order it had previously issued that prevented New York startup company Kalshi from taking bets on which political party would control the House and Senate after this November’s elections.

The ruling clears the way for such betting to resume while the court further considers the underlying issues in the case.

So far, Kalshi has only offered bets on congressional races; it was not immediately clear whether they plan to expand offerings to include the presidential election.

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“Georgia Republicans sow doubt about Dominion voting machines in 2020 throwback”

chicanery, election administration, voting technology

CNN:

Just weeks before early voting begins in Georgia, Republican Party officials and Donald Trump allies are trying to preemptively sow doubt about the viability of Dominion systems used across the key swing state, arguing in court that the machines should not be used because they are not safe or secure.

In a replay of 2020 tactics, Republicans have continued to claim without proof that Dominion voting systems are susceptible to mass manipulation and vote-flipping by a nefarious actor. And GOP officials in DeKalb County in Georgia, aided by a familiar cast of pro-Trump lawyers, have signaled they are planning to once again question the 2024 election results if Trump loses.

They have sued in state court, arguing the Dominion voting machines are not in compliance with Georgia law and want the Secretary of State’s office to make voting records and ballot images available for public inspection within 24 hours of the election. But the lawsuit is also raising concerns that the DeKalb County GOP officials are attempting to mislead voters so they can explain away a potential loss in November….

The GOP officials who filed the lawsuit say they have obtained new evidence about the vulnerabilities of the Dominion systems, a claim that Georgia Secretary of State Brad Raffensperger, a Republican, and state election officers say is false. The lawsuit also theorizes that the systems may have already been compromised, despite offering no proof to support that claim.

The plaintiffs are using the “same tired claims that have been rejected by courts again and again,” Elizabeth Young, who is representing Raffensperger’s office, told Judge Scott McAfee at a court hearing this week to determine whether the lawsuit will move forward and additional evidence can be presented. “There is not much credibility in the claim.”

Marilyn Marks, executive director of the Coalition for Good Governance, a nonprofit voting rights organization that has raised concerns about vulnerabilities in Georgia’s voting systems as part of a separate lawsuit against state election officials, told CNN she is skeptical about the true intention of the DeKalb County complaint.

“I fear they are just attempting to lay the groundwork for challenging the election based on further exposing the serious weaknesses of the system, demonstrating that the results can be manipulated,” said Marks, who is pushing for Georgia to use hand-marked paper ballots.

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“Colorado Supreme Court committee advances election-related change”

electoral college

In the immediate aftermath of passage of the Electoral Count Reform Act, I noted that state legislatures should look to update their laws surrounding the timing of elections and litigation disputes. And last year, I highlighted some states that have done so. But courts are taking the cue, too, in terms of their ability to expedite election litigation. Pennsylvania recently enacted new rules to speed up election disputes. And now Colorado has similar rules pending, as shared in this story over at Colorado Politics (the text is here). Ex ante rules for docket control are good tools for courts entering a contested election season.

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“Vance refuses to admit that Trump lost the 2020 election”

election subversion risk

Politico:

JD Vance declined to say that Donald Trump lost the 2020 election, drawing a sharp rebuttal from Tim Walz, who called his response a “damning non-answer.”

“When this is over, we need to shake hands, and the winner needs to be the winner. This has got to stop,” Walz said, delivering perhaps his clearest and most forceful answer of the night — on the final question of the debate.

When Walz pressed Vance to acknowledge that Trump lost the last election, Vance replied: “Tim, I’m focused on the future.”

Vance used his time to present a revisionist version of Trump’s actions on Jan. 6, 2021, saying Trump had simply asked his allies to protest the election results peacefully at the Capitol. Vance omitted Trump’s attacks on his then-Vice President Mike Pence while a violent riot raged, as well as his months of fomenting false claims that the election was stolen and urging his supporters to “stop the steal.”

Eliding Trump’s many efforts to overturn the election results, Vance said simply that Trump eventually did hand over power to Joe Biden on Jan. 20, 2021.

Votebeat:

At Tuesday’s debate, Vance selectively portrayed January 2021 as what he sees as a peaceful transfer of power.

“Remember [Trump] said that on January 6 the protesters ought to protest peacefully. And on January the 20th, what happened? Joe Biden became the president, Donald Trump left the White House,” Vance said, implying that the only duty of the president to enable a peaceful transfer of power is to physically leave the White House on Inauguration Day. Whether that person has conceded their loss, or filed more than five dozen lawsuits in opposition to that loss, or riled up his or her supporters to the point of deadly violence before that inevitable departure is, apparently, immaterial to his definition.

Walz rejected Vance’s evasions, saying he was “pretty shocked.”

“When Mike Pence made that decision to certify that election — that’s why Mike Pence isn’t on this stage,” said Walz. “What I’m concerned about is, where is the firewall with Donald Trump? Where is the firewall if he knows he can do anything, including taking an election, and his vice president’s not going to stand [up] to it?”

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