A Ridiculous Threat to Democracy
Before getting into the state of play in the two major election interference cases in California and Alaska, I want to acknowledge an inherent tension in covering President Trump’s attack on free and fair midterm elections.
It’s a tension that should be familiar to anyone who has lived through the Trump era: The severity of his threat to democracy is matched only by his pure absurdity.
The temptation to pick one lane or the other rather than straddle both lanes is strong. You may want to dismiss the entire midterm attack as an absurd scheme not worthy of you attention; or you may want to light your hair on fire about the coming fascism and ignore the inherent weaknesses in Trump’s desperate effort to stave off a loss of both chambers of Congress.
It’s hard to entertain those competing impulses, but the truth is the attack on the midterms is both dangerous and ridiculous, like Trump himself.
The Latest on California …
Today: We’re awaiting a decision from the 9th Circuit Court of Appeals on the Trump DOJ’s effort to force California to segregate and not yet count mail-in ballots from voters who appear on a dubious administration-generated list of what it claims contains some 20,000 alleged noncitizen voters.
The appeals court took the rare step of hearing oral arguments via Zoom on a Sunday as it considers the Trump DOJ’s long-shot appeal in a case where the lower court hadn’t even ruled yet. At least two judges on the appeals court panel appeared very unlikely to countenance this premature appeal and dismiss it. You can read my full report on the oral arguments here.
Tomorrow: If the 9th Circuit clears the way, as expected, the California case goes back to U.S. District Judge David O. Carter, who has an important hearing scheduled for 1 p.m. PT Tuesday. This will be the first time Judge Carter has taken up the case in any meaningful way since it was filed. He’s indicated he will consider all of the pending motions, including the Trump DOJ’s request for an injunction that would immediately require California to segregate some mail-in ballots even as voting is underway. Judge Carter says he will rule “promptly” after the oral arguments. The losing side will undoubtedly appeal his decision back to the 9th Circuit.
The Stakes: With the news Friday that the Trump DOJ sent letters to every county election official in California threatening them with criminal prosecution if they count mail-in ballots from its list, it’s now clearer that the stakes go beyond the Los Angeles County case and will have immediate statewide implications. If the Trump DOJ manages to prevail in California, it’s hard to imagine it not trying to extend its scheme to other states.
The Latest on Alaska …
The Trump DOJ’s over-the-top effort to keep Alaska from certifying the election results of its U.S. Senate race is moving quite a bit slower than the California case.
It’s not clear from the docket that the Alaska state defendants have been served the lawsuit yet. In any event, they haven’t responded yet or even had attorneys enter their appearances.
A slew of intervenors opposed to the Trump DOJ’s lawsuit have already sought to participate in the case. One pair of intervenors — the Democratic Senatorial Campaign Committee and Alaskans For Mary (Peltola, the Democratic nominee) — has tentatively filed a motion to dismiss the Trump DOJ lawsuit and is asking for expedited rulings in the case.
Since we last checked in on Friday, President Trump brazenly announced that he ordered the DOJ to file the Alaska lawsuit, which is being widely panned by legal experts as flimsy and frivolous.
Experts Weigh in on Election Interference
Georgetown law professor Steve Vladeck:
The Department of Justice is putting its formidable thumb on next week’s elections in a way that seems clearly intended to call into question the legitimacy of any result that is especially unfavorable to Republicans—before those results have even come in. These efforts are incredibly dangerous to our democracy—especially to the extent that they are legally baseless. And they ought to be loudly and publicly condemned by anyone who cares seriously about democratic legitimacy.
UCLA election law professor Rick Hasen:
Of the many things that could go wrong in November, I worry most about DOJ seeking to interfere with the tabulation and certification process, especially in a place like Alaska that may determine which party controls the United States Senate. The situation in Alaska is specifically frightening. Due to its complex voting procedures, strange time zone, and remoteness, in normal years it can take a particularly long time to count all of Alaska’s ballots. These types of delays are what Trump has seized on in the past to most successfully attack elections, specifically the COVID-delayed election counts of 2020. I am particularly concerned DOJ could try to seize ballots or voting machines.
The NYT reporting team:
The Justice Department is sharply intensifying efforts to intervene in the midterm elections, goaded by a president unfettered by even the limited restraints of his first term.
The next several weeks represent a critical moment for federal law enforcement, a test of whether a department repurposed by President Trump as an instrument of unmediated executive power will be effectively mobilized as a guarantor of his political power.
More Blanche on TV, Please
Trump DOJ Watch
DOJ forced to withdraw its own claim of compliance: After ICE wrongfully deported two more asylum seekers, the Trump DOJ was forced to withdraw its previous claim that the administration was in compliance with court orders in the J.O.P. case, the long-running class action settlement involving unaccompanied minors seeking asylum. The administration has already been held in contempt in the Baltimore case multiple times.
U.S. attorney scheme update: The 9th Circuit Court of Appeals offered few clues on how it might rule during oral arguments Friday in the lawsuit by court-appointed U.S. Attorney Roger Rogoff of Seattle, who was fired by the Trump DOJ. Rogoff is challenging the president’s power to fire court-appointed acting U.S. attorneys — a key element of President Trump’s scheme to install loyalists as the top prosecutors in blue states.
Woodward seeks recusal of Minnesota judges: Stan Woodward, the No. 3 official in the Trump DOJ, is seeking the recusal of two federal judges in Minnesota who were among those interviewed by the NYT in the aftermath of Operation Metro Surge. Woodward, who already filed a judicial ethics complaint with the 8th Circuit Court of Appeals about the judges who spoke to the NYT, is seeking the recusal of former Chief Judge Patrick Schiltz in a habeas case and U.S. District Judge John Tunheim in a noncitizen voting prosecution. (h/t Marcy Wheeler)
Gutter Racism
President Trump’s closing argument in the midterm elections is pure undiluted racism, falsely accusing Abdul El-Sayed of being a “jihadist Muslim Brotherhood member” and continuing to assail Somali Americans as congenitally stupid yet smart enough to hack the American dream at the expense of “real” Americans:
Inside the Cheesecake Factory
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What Rick Hasen and others who are focussing on election law and trump/DOJ "lawsuits" is the use of the conditional tense in alleging "fraud" or "election integrity"...as an example (In AK), "Voters COULD be misled by [...], or, "There MAY be evidence that voters were "confused"....yadda-yadda, so we're filing "pre-emptively".
How can ANY court give credence to such an ill-drawn suit? But, it won't stop the evil-doers from persevering with nuisance legal manoeuvering, will it?