Walter Olson
Number fourteen in our series of occasional roundups on election law and policy:
No, President Trump still can’t use an executive order or unilateral presidential power to ban mail-in voting or revamp voting-machine or voter ID practice, as we keep pointing out, no matter how often he acts as if he can. He might get some of these changes by convincing Congress to pass an actual law, but the relevant constitutional leeway is much wider for House and Senate elections than for other offices. [David Post, my statement for Cato, pickup at Washington Post, USA Today; Matt Germer/R Street, NPR (quotes mail voting advocate as saying compliance with such a change by next year “would be nearly impossible” and questioning whether the aim “is to ‘destabilize’ next year’s elections”.)] For reasons outlined here, it’s also unlikely to be lawful for the administration to “withhold tens of millions of dollars in election security funding if states don’t comply with its voting policy goals.” [NPR] “The conservative network Newsmax will pay $67 million to settle a lawsuit accusing it of defaming a voting equipment company by spreading lies about President Donald Trump’s 2020 election loss.” The law firm of Susman Godfrey, which represented Dominion Voting Systems in this action and in an earlier settlement with Fox News, was hit with one of Trump’s law firm penalty orders purporting, among other things, to forbid any of its staff from entering federal buildings. [Nicholas Riccardi, AP] “Some jurisdictions criminalize ineligible voting on a strict liability basis, imposing punishment even when the ineligible voter is unaware of her ineligibility.” Courts and lawmakers should impose a constitutional mens rea requirement. [Benjamin Plener Cover via ELB] “Musk must face lawsuit brought by voters he convinced to sign petition in $1 million-a-day election giveaway, judge says.” [Eugene Volokh, earlier] The more things change: 2000 years ago, “the Romans struggled over how to define the law between legitimate campaign finance activity and bribery. They also worried that defining bribery too expansively would lead to the weaponization of campaign finance laws.” [Richard Pildes, Election Law Blog]
