A Legal Lightning Round!
Court cases in Colorado, Pennsylvania, Georgia and Wisconsin all may impact our elections in 2024.
There are multiple stories in our courts that require a bit of attention. So let’s play a quick Legal Lightning Round, and I’ll say a few words about each.
Start the clock!
Colorado Trump ballot appeal
Last week, a district court judge in Colorado issued damning factual findings, principally that Trump was an insurrectionist, had illegally incited the crowd on January 6, and had sought to disrupt the electoral college count in Congress. But bafflingly, she also found Trump was not an “officer” of the United States within the meaning of Section 3 of the 14th Amendment and so could not legally be barred under that provision from appearing on the Colorado primary ballot.
The organization suing to block Trump, the Citizens for Responsibility and Ethics in Washington (CREW), promptly filed an appeal on Monday to the Colorado Supreme Court, which agreed on Tuesday to take it up on an accelerated timetable.
The timetable for briefing is very tight. Trump’s attorneys must respond to the appeal by next Monday, and oral arguments will begin December 6. The state’s deadline for certifying candidates on the ballot is January 5, 2024 for the March 5 primary. No matter which way the Colorado Supreme Court rules, it is likely that the matter will go up before the U.S. Supreme Court right away.
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A key Pennsylvania mail-in ballots ruling
A federal court on Tuesday ruled that counties in the state must count mail-in ballots, even if they are missing or have an incorrect date on the outer envelope. While this may sound hyper-technical, it is also hugely consequential. Existing state law, which the Pennsylvania Supreme Court had upheld in 2022, requires counties to reject undated mail-in ballots, even if they are cast on time. It also requires rejection of wrongly-dated mail-in ballots. These kinds of technical ballot rejections are a form of voter suppression. They fall disproportionately upon nonwhite and lower-income communities, and as a consequence Democratic ballots comprised 68 percent of the ballots that were rejected in 2022.
Just before the 2022 midterms, plaintiffs sued to prevent enforcement of the law on grounds it violated a federal statute that prevents disenfranchisement of a voter for non-material errors or omissions, on grounds that the written date is not important in determining whether the ballot was timely cast. Pennsylvania tracks when a ballot was received and stamped by the county board as determinative of when it was actually cast. The federal court found, therefore, that the state’s written date requirement violates federal law because it is an immaterial roadblock to voting.
Defendants are expected to appeal.
Georgia RICO trial judge narrows bond conditions
In a closely watched preview of what may be in store for the keyboard kracken himself, Donald Trump, Fulton County Superior Court Judge Scott McAfee decided to modify the bail terms, rather than revoke bail, for one of the defendants in the case, Harrison Floyd. His ruling came despite Floyd having targeted and intimidated witnesses in his social media posts. Instead, the judge moved to clarify the bond conditions for Floyd, prohibiting him expressly from posting further comments about witnesses in the case.
Floyd is the former head of Black Voices for Trump and stands accused, among other things, of conspiring to intimidate election worker Ruby Freeman and pressure her to falsely claim she had committed election fraud. He also issued veiled threats to another witness, Georgia Secretary of State Brad Raffensperger. “@GaSecofState needs to call his lawyer,” Floyd posted on Nov. 8 in a since deleted tweet. “He’s about to go through some things!”
Floyd’s attorneys noted that defendant Trump had also posted about witnesses in the case but had suffered no consequences for it. They argued Floyd was being unfairly singled out and that the revocation threat was retaliation for Floyd not taking a plea deal. After hearing fiery arguments, including from DA Fani Willis herself, Judge McAfee agreed that Floyd had violated his bond terms, but found that Floyd’s tagging of witnesses was a “technical violation” that didn’t warrant jail time. “Not every violation compels revocation,” Judge McAfee held.
Wisconsin Supreme Court fireworks
The Wisconsin Supreme Court, with its newest elected justice, Janet Protasiewicz, held a tense hearing over a lawsuit aiming to redraw the state’s legislative district maps. If successful, the suit—filed a day after Justice Protasiewicz began her term—could result in the GOP losing its gerrymandered hold on the Wisconsin State Assembly and State Senate, where it holds supermajorities. The lopsided allocation of power in the state legislature is particularly galling in a state that is otherwise nearly evenly split politically.
The conservative justices turned their ire not only upon the litigants but upon Protasiewicz, whose vote likely will be determinative of the outcome of the case. She had won a resounding electoral victory earlier this year but immediately faced challenges, and even tough talk of impeachment, for having stated that the maps were “rigged.” (They are, objectively, quite rigged, but as we have seen in many cases across the country, that still, and rather maddeningly, doesn’t mean they are illegal.)
“Everybody knows that the reason we’re here is because there was a change in the membership of the court. You would not have brought this action, right, if the newest justice had lost her election,” conservative Justice Rebecca Bradley said to Mark Gaber, an attorney for the plaintiffs.
The consequences for the state of new and more balanced legislative district maps cannot be overstated. When neighboring Michigan redrew its maps using an independent redistricting commission, it led to a much fairer election where the Republicans were only slightly favored to hold the majority. Instead, powered by strong abortion rights voters, the Democrats swept into power and now hold a trifecta in government, leading to the enactment of numerous progressive policies.
A more democratic allocation of seats in Wisconsin could prove pivotal when it comes to redrawing congressional maps as well. Presently, due to extreme gerrymandering, the Wisconsin congressional delegation comprises six Republicans and only two Democrats, in a state that voted statewide for Democrats Joe Biden and Gov. Tony Evers in the last two elections respectively.
It is sickening how republicans continue to fight to suppress voters. Who cares if someone accidentally wrote the wrong date on their mail in ballot? As long as the ballot was received by the due date it means nothing. In fact I don't have to write the date on my ballot when I vote early in person. And don't even get me started on Wisconsin's conservative justices whining about this challenge being brought after the make up of the court changed to liberal control. Conservatives didn't seem to mind when it worked for them in NC.
Thanks for the lightening round. I watched Fani Willis on tv during a court hearing, I think yesterday. She is powerful. I have even more respect for her after seeing her in action. A real superwoman and defender of the rule of law.