Dem
52
Ties
2
GOP
46
Another week with a lot of news that is at the intersection of law and politics:
It's Finally Over... for Now: Missouri Secretary of State Denny Hoskins has managed to piss off just about everyone in his determination to use a 2025 district map that would net Republicans, at most, one extra House seat. Even that outcome was far from a given, since the popular incumbent, Rep. Emanuel Cleaver II (D), decided to continue his candidacy in the new district and was running a strong campaign. And now, both the state and federal Supreme Courts have told Hoskins (twice in SCOTUS' case) that he has to use the 2022 Congressional map for the 2026 general election.
The latest in this saga came early Thursday morning when the entire Supreme Court, and not just Associate Justice Brett Kavanaugh, blocked a federal district court's temporary restraining order, issued on Tuesday less than an hour after Kavanaugh's original rejection of Hoskins' appeal, that had required the use of the 2025 map, contrary to the state Supreme Court's decision. After the Eighth Circuit refused to take action, the folks behind the referendum petition challenging the 2025 map filed an emergency appeal on Wednesday afternoon asking the Justices to put the federal TRO on hold. The Court told Hoskins to file a response by 10:00 a.m. ET Thursday morning, which he did. At 10:16 a.m., the Court granted the emergency request and blocked the TRO. The brief order essentially nullifies the lower federal court's action, which means that the Missouri Supreme Court's decision requiring the use of the 2022 map in the general election is the controlling, and the only remaining, order. To punctuate that point, a few minutes after SCOTUS' order came down, the Missouri Supreme Court held contempt proceedings to determine whether Hoskins should be held in contempt for violating the Court's order by sending an e-mail instructing clerks to print ballots based on the 2025 map.
Our Take: Yikes. This will not end well for Hoskins, but is a really important outcome for our democracy. You can bet that partisan secretaries of state are watching this closely to see just what kind of shenanigans they can get away with. Kudos to the Missouri Supreme Court for doing its job and following the law to protect election integrity and kudos to the U.S. Supreme Court for quickly shutting this down, respecting the Missouri Supreme Court and reiterating that states run elections. Interestingly, Kavanaugh acted alone the first time he was asked to intervene by Hoskins and did not refer the request to the Court. This time he did refer the matter to the Court and it was granted in 15 minutes with no noted dissents. Given that the district court had based its decision on constitutional equal protection grounds, this stay is more significant than Kavanaugh's earlier action. With the usual caveat that trying to read SCOTUS tea leaves is a fool's errand, this could signal that the justices draw a line when it comes to federal interference in a state's electoral processes. If so, that would be very good news for states' rights in the USPS case.
Going Postal: Speaking of the USPS case, the 23 states and voting-rights groups who sued to stop the postal rule commandeering mail-in ballots have submitted their response to the administration's emergency SCOTUS appeal of federal district court judge Indira Talwani's preliminary injunction blocking its implementation. California deputy solicitor general Ian Fein wrote on the states' behalf that allowing the rule to take effect would disenfranchise millions of voters and that the justices should be "skeptical" of the postal service's efforts to regulate elections given that it has no experience doing so and "nothing in federal law authorizes USPS to refuse to deliver ballots." Voting rights groups likewise responded that only Congress can deem material "non-mailable" and mail ballots are not on that list.
Our Take: Notably, Talwani did not block the rule from taking effect entirely. Her preliminary injunction only blocked that portion of the rule that makes participation mandatory by the states. Those states that want to voluntarily comply are free to do so. For instance, North Carolina officials claim that their ballot envelope design was approved by the USPS. (Of course, the whole point of a new envelope is allegedly to verify voter eligibility, which can't be done because the database isn't operational, so North Carolina's "compliance" is a bit of an empty gesture.) That distinction, though, makes the Justices' job much easier—they don't necessarily have to opine on the rule's legality, only whether the injunction is appropriately circumscribed. And last night, the First Circuit Court of Appeal denied Trump's motion to stay Talwani's injunction. So, the ball is now completely in the Supremes' court. We should have a decision in the next few days, but the longer the Court waits, the more likely it is that this rule will be put on the scrap heap, at least for the midterms.
Strike Two, Donald: It's déjà vu all over again. Donald Trump tried again, in a new executive order, to deny citizenship to a select group of children born in the United States. And, once again, a federal court has blocked that effort. U.S District Court Judge Deborah Boardman in Maryland issued a preliminary injunction in a class action lawsuit brought by immigrant families and advocacy groups. In her ruling, Boardman cut straight to the point: "The Supreme Court has spoken: Children in the certified class are 'citizens at birth.'" Because this is a class action suit, the injunction applies nationwide.
Our Take: It really is a shame that the burden of stopping the worst atrocities of this administration has fallen so heavily on our judges and beleaguered advocacy groups, as well as courageous individuals willing to stand up to Trump. Even a crystal-clear Supreme Court order barely slows him down. At some point, we'll hopefully have a functioning Congress that can rein him in somewhat. But it would be really nice if the people in the party that created this monster and his enablers grew a spine and remembered that the oath they took is to the country and Constitution, not to this man.
The Crook Factory: In the case challenging the legality of the slush fund and Trump family immunity from tax fraud and other wrongdoing, a federal magistrate judge has ordered Trump officials to divulge the identities of those who dreamed up the slush fund. This case was brought in Virginia by a former federal prosecutor who claims he was fired for political reasons. His suit claims that the slush fund was purposely created to exclude people like him and only award money to Trump supporters. IRS workers later joined the suit to challenge the immunity deal, claiming that it would require them to violate other federal laws if it is implemented.
Our Take: Well, this should be fun. It doesn't seem like it's much of a secret who took the lead in devising this scheme—looking at you, AG Todd Blanche. But there could be others as yet unidentified, and if there are e-mails brainstorming the plan, including how the funds were to be paid out, that could be the smoking gun the plaintiffs need to prove their case. No doubt the DOJ won't part with that information without a fight.
Don't Let the Door Hit You in the Rear End...: During the investigation into Russia's interference in the 2016 election and Donald Trump's possible involvement therein, former federal prosecutor Joseph diGenova was one of Trump's attorneys. He has long peddled a so-called "grand conspiracy" that led to the investigation, and has pushed to investigate the investigators. That task was given to Trump acolyte Jason Quinones, U.S. Attorney for the Southern District of Florida. He has aggressively pursued investigations of former CIA Director John Brennan, former FBI Director James Comey and other former officials in pursuit of some as-yet-unidentified wrongdoing. But not aggressively enough, apparently, because in April, diGenova was brought in to take over and promised to bring charges within 30 days. It's been 5 months with nothing to show for his efforts and yesterday, diGenova abruptly resigned.
Our Take: The Russia probe has been examined six ways to Sunday, including by a bipartisan Senate committee, which issued a report finding that there was a sufficient basis for initiating it and for looking into the Trump campaign's involvement in Russia's efforts to undermine the election. Despite multiple subpoenas, countless witness interviews, and enormous taxpayer resources devoted to it, this thing is going nowhere. DiGenova is just the latest head to roll, but no doubt he won't be the last.
And with that, court is adjourned for the week. (L)