Three senators in the Democratic caucus – Angus King, Dick Durbin, and Amy Klobuchar – have released a discussion draft of their proposal to reform the Electoral Count Act, which they dub the Electoral Count Modernization Act. A separate bipartisan group of senators led by Sen. Susan Collins (R‑ME) is also still reportedly working on their version. The Democratic majority staff on the Committee on House Administration released their own study about ECA reform, which I reviewed here with my colleague Thomas Berry.
In its broad strokes, the draft ECMA aligns with what many experts have been advocating, including here at Cato. The centerpiece of the legislation is creating an exhaustive list of valid grounds for objections in Congress to a state’s electoral votes. This is the most important step in putting an end to the confused and unconstitutional idea that Congress has a blank check to throw out votes for any reason it chooses. It is not Congress’s job to judge the underlying conduct of the popular election in each state, and the ECMA draft gets that firmly right.
Much of the ECMA draft is devoted to laying out, in great detail, the process for states to certify their electors and what happens if a state refuses to comply with a final court determination. On this, the draft is possibly overcomplicating matters, creating several new causes of action in federal court and specifying procedures the states must follow in greater detail than is necessary.
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Constitutional Law
Maryland Should Repeal Its Civil Disabilities for Religious Unbelief
The constitution of the state of Maryland includes a series of provisions (Declaration of Rights, Articles 36, 37 and 39) proclaiming “the duty of every man to worship God”; stating that a witness or juror may not be disqualified on religious grounds “provided he believes in the existence of God” and a state of eventual rewards and punishments; and stating that no religious test shall ever be imposed for office “other than a declaration of belief in the existence of God.”
These provisions are worse than anachronistic. They prescribe a duty that is inconsistent with respecting the equal liberty of religious nonbelievers. They gesture at excluding from the civic compact the very large numbers of Marylanders who would not of their own free will make the attestations in question. Beyond all this, they are already inoperative and invalid, since they conflict with the U.S. Constitution and its principles of religious liberty as long interpreted by the U.S. Supreme Court. No Maryland court may enforce them.
Del. Terri Hill (D‑Howard, Baltimore Counties) introduced a bill, H.B. 181, that would strike the relevant clauses and replace them with modernized language that would respect the full and free range of religious belief, including unbelief. Unfortunately, it appears the bill is being withdrawn, to judge from the posts of triumphant opponents. But Del. Hill is on the right track. One may hope that in future years she re-introduces similar legislation and that the Maryland General Assembly chooses to correct this shortcoming in its constitution’s protection of liberty.
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An Outlandish Facebook Post Was Not a “True Threat”
Days after the U.S. Capitol siege of last year, Daniel Baker of Tallahassee posted heated messages on Facebook condemning the attack. The posts encouraged others to fight back if, and only if, an armed mob of racist terrorists attacked the Florida Capitol, overpowered police officers, and successfully occupied the building. Of course, no such events occurred and no violent incident followed from the posts.
While potentially shocking, Baker’s posts were in line with much of the rhetoric of the day. Throughout 2021, many public statements about the 2020 election and the events of January 6 were sharp, inflamed, and discussed violence. Baker’s posts were not unusual in this regard. What is unusual is that Baker was charged with the federal crime of making a “threat to injure the person of another.” Baker was convicted and sentenced to 44 months in prison. Now Baker is appealing his conviction to the Eleventh Circuit, arguing that his conviction violated the First Amendment. The ACLU, joined by Cato, has filed an amicus brief supporting Baker.
In the brief, we explain that Baker’s statements did not meet the high bar for “true threats,” which can be punished consistent with the First Amendment. First, no reasonable person reading Baker’s statements would have understood them as expressing a serious intent to lay siege to the Florida Capitol. Baker’s statements were expressly conditioned on outlandish events: a group of individuals attacking the Florida Capitol, overpowering police, and occupying the building. Publicly reported law enforcement intelligence at that time showed that there was no threat of a coup at the Florida Capitol.
In addition, because no one planned to attack the Florida Capitol, Baker’s statements encouraged taking action against people who did not exist. His statements contemplated armed resistance against a non‐existent treasonous militia, and thus no actual person could have felt personally threatened by the statements. Finally, the statements were communicated to a general audience on a matter of public concern. He published the posts on Facebook in the midst of political discussions about whether the 2020 election was stolen and what exactly occurred during the January 6 riot. Baker’s statements may have been intemperate, but the First Amendment protects a great deal of political advocacy that many people would find offensive or alarming.
Together, these three factors make clear that Baker’s speech was protected by the First Amendment and could not be criminally punished. The Eleventh Circuit should vacate Baker’s conviction.
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On Justice Breyer’s Retirement and Where We Go From Here
It’s long been the conventional wisdom that Justice Breyer would retire this year and that has now been borne out, albeit earlier than the jurist apparently wanted it to be made public. With the Democrats’ nominal Senate majority in severe jeopardy in this fall’s midterms, the politically savvy Breyer—who had been Ted Kennedy’s counsel on the Senate Judiciary Committee—knew what he had to do to facilitate a smooth confirmation for his successor.
Indeed, we haven’t had a confirmation process under divided government since 1991, when then-Senator Joe Biden presided over an explosive set of hearings for Clarence Thomas. Had President Donald Trump not kicked away Georgia’s two Senate seats, of course, Republicans would’ve maintained control of the Senate—and Breyer may well have chosen to stay on longer. But that’s Earth 2.
White House spokeswoman Jen Psaki has now confirmed that the president intends to fulfill his pledge to nominate a black woman. Although the pickings were slim in that demographic category a year ago—when looking to judges of suitable age on federal circuit and state supreme courts—President Biden has already had five black women confirmed to circuit courts, with three more in the pipeline.
The leading contenders are D.C. Circuit Judge Ketanji Brown Jackson (who took Merrick Garland’s seat when he became attorney general) and California Supreme Court Justice Leondra Kruger. Although “KBJ” seemed to have the inside track for many years—she was much discussed as a potential nominee when Hillary Clinton seemed poised to win the presidency in 2016—Kruger’s youth (45 vs. Jackson’s 51) and perceived stronger jurisprudence may be tilting the odds in her favor.
Whomever Biden picks, however, is likely to be a reliable vote on the Court’s left wing, even more than Breyer has been. It has long been the case that Democratic-appointed justices vote much more in lockstep than their Republican-appointed counterparts.
Of course, the timing of this retirement shouldn’t matter. That it does is indicative a broader problem about which I’ve previously written.
And if you’re looking for a deeper look at how we got where we are and trends/forces at play around judicial nominations and Supreme Court politics, I recommend my own Supreme Disorder, which was published right after the passing of Justice Ruth Bader Ginsburg and which is coming out in paperback this summer.
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Government Must Not Assign Scarce COVID Therapies By Race
I’ve got a piece in The Dispatch this morning. Excerpt:
Governments around the country have been directing medical providers to allocate potentially lifesaving COVID therapies among patients on the basis of race, a policy that is almost certainly unconstitutional as well as morally open to question.…
For those late to this controversy, here’s a few examples of how the preferences work. In dispensing the scarce kind of monoclonal antibody that is known to retain broad effectiveness against COVID, for example, the Minnesota Department of Health prescribed a point system in which BIPOC [black, indigenous, person of color] status was worth 2 points, the same as diabetes or age greater than 65. New York state adopted a similar policy of racial discrimination in making available the breakthrough antiviral Paxlovid: access to the drug would depend on having some risk factor for severe illness, but nonwhite status would count as such by itself, whereas white patients would have to demonstrate some extra factor putting them at risk. A Utah state framework for dispensing monoclonal antibodies “gives ‘non‐white race or Hispanic/Latinx identity two points, more than hypertension or chronic pulmonary disease,” reports Aaron Sibarium of the Washington Free Beacon, who has broken several stories on the issue. Further, the federal Food and Drug Administration has also issued influential guidance promoting racial preferences.…
I’ve been writing about this problem for a while, including pieces back in 2020 when the question was one of racial preferences in the distribution of vaccines as distinct from therapeutics. As I noted back then, the Fourteenth Amendment provides that:
citizens of all races are entitled to the equal protection of the laws. The Supreme Court has long interpreted this to mean that the government may ordinarily not dole out valuable benefits, or impose harms, based on a citizen’s race.
Courts thus apply “strict scrutiny” to any race‐conscious law or policy, requiring proponents to show that it fulfills a “compelling purpose” for the government and is “narrowly tailored” to achieve that purpose, tests that this policy would be unlikely to pass.
There are a few major exceptions but they do not apply here. Compensatory preference is OK when there has been recent, systemic discrimination against a minority group by the same level of government that wants to adopt the preference. (Inequality by itself, even when traceable to society‐wide discrimination, isn’t good reason.)
And while race can indeed correlate with COVID-19 vulnerability through the proxy role of factors like low socioeconomic status, diabetes, and asthma, courts expect government decisionmakers to make dispensing decisions based on these factors directly, rather than relying on generalizations based on race.
Much of my Dispatch piece is devoted to a critique of an Associated Press article that presents a misleading account of the controversy, quoting only once and briefly from anyone opposed to the policies — a mistaken assertion by cable host Tucker Carlson — while ignoring substantive criticism from both health and legal quarters. Why can’t the press do better?
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House Committee Issues Report on Electoral Count Act Reform
Last week, the Democratic majority for the Committee on House Administration released the first concrete step towards reforming the Electoral Count Act, with a comprehensive report outlining the ECA’s history, the case for reform, and a list of recommendations. Interest is especially high now that the Democratic push for broader and more controversial election and voting bills appears to have met its final fate in the Senate. A bipartisan group of senators led by Sen. Susan Collins (R‑ME) has been meeting to discuss the way forward on the ECA.
The Committee on House Administration’s staff report, commissioned by committee chair Rep. Zoe Lofgren (D‑CA), is an excellent starting point for the discussion. It is thoroughly researched, thoughtful in its analysis, and its recommendations are largely aligned with our own suggestions about what ECA reform should look like.
Major points of agreement include raising the threshold for making an objection, which forces Congress to divide back into their separate chambers for two hours of debate and a vote. Currently, that process can be triggered so long as one member from each chamber requests it, an invitation for ill-founded grandstanding. The committee suggests one third of each house, which might be a bit high, but the exact number is less important than making sure an objection has some real and significant level of support before it can cause a delay in the proceedings.
The other big idea is to create an exhaustive list of valid grounds for objections. This builds on the principle that Congress has a limited role when canvassing the results of the Electoral College and should not sit in judgment of the underlying popular elections in each state. Such a provision would make clear that outside of a narrow list of fairly technical reasons, any other grounds for objection would be out of order. Limiting the grounds for objections is the most important reform idea to prevent Congress from second-guessing election results and to shut down the escalating tit-for-tat of baseless objections over matters far beyond Congress’s proper authority.
The report also recommends moving the date that the electors meet to cast their votes later in the calendar, from mid-December to perhaps late December or early January. By giving states more time to certify their list of electors, this change would allow the courts more time to resolve any post-election legal issues. Perhaps just as importantly, granting the courts more time would reduce the appearance that post-election litigation is an overly-rushed and imprecise process, creating more confidence in the final results.
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Are Mandatory Bar Association Dues Unconstitutional? The Supreme Court Is Seriously Considering the Question
In every state and the District of Columbia, there is a bar association that regulates the practice of law. Some state bar associations, however, go beyond administering the bar exam and other licensing requirements and require attorneys to be dues‐paying members. In many of those states, the bar association spends attorneys’ forced‐dues on various political and ideologically charged issues. That’s a problem under the First Amendment, especially after the Supreme Court’s 2018 decision in Janus v. AFSCME.
In Janus, the Court overturned a 41 year‐old precedent that allowed public‐sector unions to collect mandatory dues even from those who didn’t want to be part of the union. The Court ruled that, because public‐sector unions are inherently political entities, taking dues from nonmembers was a form of forced political speech. Making someone financially support a group’s political actions violates the First Amendment.
After Janus, the question remained whether other types of forced dues might violate the First Amendment. Many challenges were filed against mandatory state bar associations, and the Court now seems interested in these challenges. In Jarchow, a case challenging Wisconsin’s mandatory bar dues which Cato also supported, Justice Thomas and Justice Gorsuch dissented from the Court declining to hear the case.
McDonald is another challenge to a mandatory‐dues bar association, this time in Texas, and one of the petitioners is columnist Josh Hammer. Like the previous cases, the petitioners allege that the bar association has spent the attorneys’ compelled dues on various political and ideological causes. Unlike previous cases, however, the petitioners partially won in the circuit court. In its decision, the Fifth Circuit analyzed the Texas bar association’s activities under a “germaneness” test, asking essentially whether the plaintiffs’ forced dues were being spent on things germane to the practice of law.
Despite their limited victory, McDonald and his fellow petitioners are now asking the Supreme Court to take their case. While the Fifth Circuit’s opinion was an important victory in some ways, the circuit court felt constrained by Keller, a 30‐year‐old Supreme Court precedent upholding mandatory bar dues. This case presents the Court with an opportunity to clarify how Keller and Janus fit together, if they do at all. And the Court seems interested because it called for a response from the bar associations in both this case and Schell, which is a strong indication the Court is considering taking the cases.
Cato has again joined the Pacific Legal Foundation, the Atlantic Legal Foundation, and the Reason Foundation on an amicus brief supporting McDonald and his fellow petitioners. We argue that state bar associations obviously use mandatory dues on political speech, and such practices clearly violate the holding in Janus. The Supreme Court should take the case and hold that mandatory bar dues used for political advocacy violate the holding in Janus.