“Judge rules Menendez’s prosecutors can’t show ‘critical’ evidence”

bribery, Speech or Debate Clause

Politico:

Jurors in Sen. Bob Menendez’s corruption case cannot see evidence prosecutors have called “critical” to part of their case, a federal judge ruled Friday.

The decision puts a hole in prosecutors’ ability to prove their central claim: that the New Jersey Democrat took bribes to help send billions of dollars of American military aid to Egypt.

U.S. District Court Judge Sidney Stein said prosecutors could not use evidence they hoped would show Egyptian officials were “frantic about not getting their money’s worth,” despite bribes Menendez allegedly took to help the country access billions of dollars of American military aid and arms.

Stein found the Constitution’s “speech or debate” clause does not allow prosecutors to show jurors the evidence. The clause grants members of Congress a form of immunity that is mostly impenetrable in investigations relating to the official duties of lawmakers, their aides or other congressional officials.

Coincidentally, Stein based his order on a 1979 Supreme Court case about another New Jersey Democrat accused of corruption. In that case, the high court ruled the speech or debate clause barred prosecutors from introducing certain evidence against Rep. Henry Helstoski, who had been accused of accepting bribes.

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Brandon Johnson: “There’s ‘Clear Error’ in the Supreme Court’s New Racial Gerrymandering Decision

Supreme Court

The following is a guest post from Brandon Johnson:

The Supreme Court has made a habit of applying general rules of law in exceptional ways when deciding election law cases. The Court has, for example, elevated the holding in Purcell to a quasi-abstention-level “principle” to limit federal courts’ abilities to review election regulations; it has changed the rules for reviewing state court interpretations of state law if the law at issue governs federal elections; and it has significantly expanded the reach of the political question doctrine to prevent judicial review of redistricting.  I will be addressing this trend in full-length article treatment in the coming year, but it is worth noting the continuation of this practice with the Court’s decision in Alexander v. South Carolina State Conference of the NAACP in which it has introduced exceptional rules for reviewing a lower court’s factual finding in racial gerrymandering cases.

Before walking through the exceptional nature of this opinion, a brief sketch of the case will provide some necessary context. In 2018, South Carolina congressional district 1—a previously reliably Republican district—elected a democratic candidate to Congress. After the 2020 census, District 1 and District 6—the state’s only reliably Democratic district—needed to be adjusted due to population disparities.

The resulting new map was subject to a lawsuit alleging that the new District 1 was an unconstitutional gerrymander. South Carolina categorically denied considering racial data at all in crafting the new district maps. At trial, South Carolina asserted, for the first time, that the new District 1 was drawn to serve partisan goals of ensuring that the district would once again be a safe Republican seat. After a lengthy litigation process, a three-judge district court found in favor of the plaintiffs and held that District 1 was, in fact, created in violation of the Fourteenth Amendment. The district court made several factual findings supporting this conclusion including crediting the plaintiff’s expert testimony and discrediting the State defendant’s denials that they used racial data in crafting the new maps.

The State sought and received review in the Supreme Court. In a 6-3 opinion authored by Justice Alito, the Court reversed the district court’s decision, allowing the new map to go into effect.

Because the district court’s decision rested in large part on factual findings, it would in the ordinary course be subject to clear error review on appeal. It is at this point that the exceptional nature of the Supreme Court’s majority opinion, authored by Justice Alito, starts to emerge.

From the opinion’s first discussion of the clear error standard, it is apparent that this will not be “clear error” as usual. Less than two pages after explicitly stating that the Court will “dispose of the case on clear error grounds,” the opinion backs away from the traditional formulation of the clear error standard, asserting that the three-judge court’s “mistaken impression of legal principles” means that the Court here “is not bound by the clearly erroneous standard.”’

Continue reading Brandon Johnson: “There’s ‘Clear Error’ in the Supreme Court’s New Racial Gerrymandering Decision →
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“New racial gerrymandering lawsuit takes aim at South Florida’s powerful congressional districts”

Uncategorized

WLRN:

South Florida has another racial gerrymandering fight on its hands, and the outcome could dictate who gets sent to Washington and Tallahassee to represent millions of local residents.

A swath of plaintiffs from Miami-Dade County, including progressive political advocacy groups Engage Miami and Cubanos Pa’lante, as well as the ACLU Club of Florida International University, have filed a lawsuit against the Florida House of Representatives in federal court alleging a broad scheme of gerrymandering that violates the 14th Amendment of the U.S. Constitution. The groups are represented by the ACLU of Florida and law firms out of New York and Washington, D.C.

The lawsuit takes aim at four U.S. congressional districts in South Florida : Districts 19, 26, 27 and 28. It also challenges seven Florida House of Representatives districts: 112, 113, 114, 115, 116, 118 and 119. All the district seats named in the lawsuit are held by Republican representatives.  (A copy of the complaint is embedded at the end of this story.)

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Missing a Crucial Distinction

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The N.Y. Times this morning has as the top story on the front page of its website a very impressive statistical analysis of Trump’s statements sowing distrust in the legitimacy of the election in 2016, 2020, and so far this year.

In my judgment, however, this piece (like much other public discussions of this topic since 2016) conflates two different types of claims, which need to be kept separate if as a society we are going to have any hope of accepting and respecting the results of an election.

The Times piece, for example, lumps together (1) Trump’s false claim that he, not Biden, won more valid votes in enough states for 270 electoral votes in 2020, once allegedly fraudulent and thus unlawful votes are discounted, with (2) Trump’s complaints that the electoral process is “rigged” against him. Perhaps the most famous example of the first category is Trump’s brazen assertion on Election Night that “frankly, we did win this election.” An example in the second category, which the Times cites (without distinguishing it from the first kind of claim) is Trump’s assertion that this year’s election is “rigged” because of the Biden DOJ’s prosecutions of him.

The reason why it’s imperative (in my view) to keep these two categories distinct is because they relate to the “legitimacy” of an election in importantly different ways. If an election is indeed “stolen” because of enough fraudulent votes added to the tally determined which candidate was declared the winner, that fact–once proven in court–is sufficient reason for the court to overturn the invalid outcome. By contrast, even if it could be conclusively demonstrated that enough voters were influenced by DOJ’s prosecution of Trump to cause him to lose the election this year, that fact would provide no basis whatsoever for a court to declare the outcome invalid: the votes of those voters persuaded by the DOJ prosecution would still be valid votes, just the same as any votes cast by any eligible voters whatever persuaded them to vote the way they did.

Unfortunately, our nation’s public discourse about presidential elections has elided this crucial distinction in recent years. This has been a serious problem since at least 2016, when many prominent Democrats cast doubt on Trump’s victory on the ground that Russia attempted to influence the outcome of the election. Even if it could be shown that Russian disinformation caused Trump to win, that would not negate the validity of the votes cast for him in 2016–just as the Swiftboating of John Kerry did not negate the validity of the vote cast for George W. Bush in 2004.

Voters make up their minds about how to vote based on whatever sources of information, and even disinformation, they choose to believe. The ballots they cast as a result of their electoral choices are valid ballots, whatever the reasoning process they engaged in to make their electoral decision. They are not fraudulent votes that, if outcome-determinative, indeed must be excluded from the final certified result of the election in order to have a valid victory.

If as a society we cannot maintain the clarity of this crucial distinction, we cannot hope to know whether or not we have valid electoral outcomes worthy of respect. And if we cannot know that, we cannot sustain self-government.

There are many reasons to claim that the electoral process is “rigged” and illegitimate. One could argue, as many do, that the Electoral College system itself is unfairly “rigged” in favor of Republicans. One can contend, as many also do, that elections are unfairly “rigged” because of the influence of campaign spending that should be curtailed in ways forbidden by the Supreme Court’s interpretation of the First Amendment. One might also assert, as some do, that the electoral process is unfair because powerful media or social media companies are biased in favor of one candidate or another.

But none of these claims about the legitimacy or illegitimacy of the electoral process in a broad or philosophical sense of political legitimacy affects the validity of votes cast by eligible voters in the electoral system as it currently operates.

I discussed this point more extensively in a 2020 online article for the NYU Law Review as well as a follow-up piece for Politico.

To be sure, Trump himself continues to egregiously conflate this crucial distinction. He wants voters to be confused into thinking that there’s just as much a basis for repudiating the result because of an unfair DOJ prosecution as allegedly stuffing the ballot box with enough fake votes to flip the result.

But the fact that Trump confuses his supporters in this way is no excuse for the N.Y. Times to repeat the same mistake in its coverage of the topic. The Times appropriately views its mission as to inform and educate its readers, so that they can more intelligently understand and perform their essential role as citizens in our electoral democracy. Doing so requires explaining to its readers the distinction between (a) attacking the system because of alleged unfairness and (b) asserting that an election was fraudulently stolen.

Because Trump is attempting to undermine democracy by collapsing this distinction, it is all the more imperative that news outlets like Times carefully clarify this distinction in its coverage of the campaign.

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