Category: reason

From Justice Christine Donohue’s 3-Justice plurality opinion today (joined by Justices Max Baer and Debra Todd) in In re: Canvass of Absentee & Mail-In Ballots (Appeal of: Donald J. Trump for President, Inc.):

These appeals present the question of whether the Election Code requires a county board of elections to disqualify mail-in or absentee ballots submitted by qualified electors who signed the declaration on their ballot’s outer envelope but did not handwrite their name, their address, and/or a date, where no fraud or irregularity has been alleged. Pursuant to our longstanding jurisprudence, central to the disposition of these appeals is whether the information is made mandatory by the Election Code or whether the inclusion of the information is directory, i.e., a directive from the Legislature that should be followed but the failure to provide the information does not result in invalidation of the ballot….

[W]e conclude that the Election Code does not require boards of elections to disqualify mail-in or absentee ballots submitted by qualified electors who signed the declaration on their ballot’s outer envelope but did not handwrite their name, their address, and/or date, where no fraud or irregularity has been alleged….

Justice David Wecht concurred in part but dissented as to how such matters should be dealt with in the future:

I agree with the conclusion that no mail-in or absentee ballot should be set aside solely because the voter failed to hand print his or her name and/or address on the declaration form on the ballot mailing envelope. These items are prescribed not by statute but by the Secretary of the Commonwealth under legislatively delegated authority. Absent evidence of legislative intent that what in context amounts to redundant information must be furnished to validate a mail ballot, their omission alone should not deny an elector his or her vote. But I part ways with the conclusion reflected in the Opinion Announcing the Judgment of the Court (“OAJC”) that a voter’s failure to comply with the statutory requirement that voters date the voter declaration should be overlooked as a “minor irregularity.” …

[I]n future elections, I would treat the date and sign requirement as mandatory in both particulars, with the omission of either item sufficient without more to invalidate the ballot in question. However, under the circumstances in which the issue has arisen, I would apply my interpretation only prospectively. So despite my reservations about the OAJC’s analysis, I concur in its disposition of these consolidated cases….

And Justices Kevin Dougherty, Thomas G. Saylor, and Sallie Updyke Mundy concurred in part and dissented in part:

I concur in the decision to affirm the lower courts’ orders pertaining to ballots where the qualified electors failed to print their name and/or address on the outer envelope containing their absentee or mail-in ballots. However, I cannot agree that the obligation of electors to set forth the date they signed the declaration on that envelope does not carry “weighty interests.” I therefore respectfully dissent from the holding at Section III(2) of the OAJC which provides that the undated ballots may be counted….

I can’t opine on the merits of the matter, since I’m not up on the relevant Pennsylvania law (and this is a question of state law, not of the U.S. Constitution); but I thought I’d pass along the opinions. Thanks to Howard Bashman (How Appealing) for the pointer.

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On literally his first day in office, President Donald Trump signed an executive order withdrawing the United States from the Trans-Pacific Partnership (TPP), a proposed 12-nation trade agreement that was a work-in-progress holdover from the Obama administration.

Now Trump might spend his final days in office trying to undo that initial mistake.

The Wall Street Journal reports that the latest Trump administration plan to confront China’s unfair trade practices seeks to “create an informal alliance of Western nations to jointly retaliate when China uses its trading power to coerce countries.” If China boycotts imports—as it recently did to Australian coal—or otherwise applies economic pressure to a trading partner, the allied nations would be able to execute a coordinated response. An unnamed administration official tells the paper that “the West needs to create a system of absorbing collectively the economic punishment from China’s coercive diplomacy and offset the cost.”

A collective, rather than unilateral, approach to pressuring China? Wow, things are getting really crazy in the Trump White House these days.

Creating an informal economic alliance to counterbalance China in the Pacific was, of course, one of the TPP’s primary goals. Like all trade agreements, the TPP was not without its warts, but Trump’s criticism of the proposed pact was rooted in ignorance. He railed against the TPP during the 2016 campaign, condemning it as a “horrible deal” that was “designed for China to come in, as they always do, through the back door and totally take advantage of everyone”—even though it was designed to do exactly the opposite.

Tearing up the never-ratified deal on his first day in office was not just a fuck-you to the Obama administration but a more broadly symbolic gesture. Trump was sending a signal that America would stand up to China one-on-one while seeking unilateral trade deals with some of the countries, like Japan, that would have been part of the TPP.

Four years later, it’s safe to say that the Trump strategy has not succeeded. There have been a few small victories, of course, like the “phase one” trade deal that the U.S. and China inked late last year. But those wins are small potatoes compared to the overwhelming costs of Trump’s go-it-alone strategy, which has foisted billions of dollars of tariff costs on American importers and consumers. The administration has spent $28 billion bailing out farmers hurt by the trade war—a massive self-inflicted wound. And that doesn’t even get into the other damage caused by Trump’s haphazard escalations of trade tensions with longtime U.S. allies.

It’s far too late for the president to change course now, but there is a certain satisfying symmetry to this final shift in Trump’s views on trade.

“Forming a large coalition of like-minded countries to confront certain Chinese trade and investment practices makes a lot of sense,” says Clark Packard, a trade policy counsel with the pro-market R Street Institute. “The United States does not have sufficient market power alone to force substantial changes to Beijing’s economic practices, but it can increase its leverage over such practices with a larger coalition.”

President-elect Joe Biden supported the TPP as a member of the Obama administration, but he has sent mixed messages about how his incoming administration might approach some of these thorny trade issues. Still, he has signalled an interest in stepping back from Trump’s go-it-alone formula. “We need to be aligned with the other democracies,” Biden said at a press conference last week, “so that we can set the rules of the road instead of having China and others dictate outcomes because they are the only game in town.”

Trading with other nations is, by definition, not something you can do by yourself. Whether coming from Biden or from the final days of the Trump administration, these are welcome signs that America is ready to put some of the economic foolishness of the past four years behind it.

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It’s from last month, but I inadvertently neglected to blog it when it was first put up on YouTube. Here it is, brought to you be the University of Texas Law School’s Bech-Loughlin First Amendment Center:

Here’s the UT summary:

Free Speech and Economic Justice: A Conversation with Law Professors Nelson Tebbe and Eugene Volokh

Join Professors Nelson Tebbe (Cornell Law) and Eugene Volokh (UCLA Law) for a conversation regarding how and whether current applications of free speech doctrines affect disparities in income, wealth, and other goods; whether those applications should be altered; and the disagreements and controversies arising from some of the proposed changes.

Moderated by Texas Law Professor Steven Collis, this promises to be a spirited—but friendly!—dive into one of the most important issues of our time.

It was indeed both spirited and friendly; I hope you find it to also be interesting!

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From Khan v. Orbis Business Intelligence Ltd., decided in 2018 but just posted on Westlaw (Judge Anthony C. Epstein, D.C. Super. Ct.) (affirmed as to other matters in a 2020 D.C. Ct. App. decision):

This case involves what has become known as the “Steele Dossier.” The relatively small portion of the Steele Dossier at issue in this case discusses the relationship between plaintiffs German Khan, Mikhal Fridman, and Petr Aven and the Russian government, but it does not discuss specific information linking them to any Russian interference in the 2016 U.S. presidential election or to any specific American candidate….

The Court concludes … that the Anti-SLAPP Act requires dismissal of this case because Defendants have made a prima facie case that the Act applies to their provision of this portion of the Steele Dossier to the media, and Plaintiffs have not submitted evidence that Defendants knew any of this information was false or acted with reckless disregard of its falsity.

On April 16, 2018, Plaintiffs filed a complaint against Defendants for defamation. Plaintiffs make the following allegations in their complaint. Plaintiffs are international businessmen who are the beneficial owners of Alfa-Bank (a.k.a. Alfa Group), which is based in Russia; Mr. Fridman and Mr. Khan are each citizens of both Russia and Israel, and Mr. Aven is a citizen of Russia. Mr. Steele is a U.K. citizen and a principal of Orbis, a U.K.-based company. Defendants were hired in June 2016 by Fusion GPS (“Fusion”), a Washington, D.C.-based firm that conducts political opposition research, to compile information about then-candidate Donald J. Trump’s ties to Russia and Vladimir Putin. Fusion was originally hired during the primary phase of the 2016 election cycle by Republicans. After the Republican convention, Fusion was hired by the Democratic National Committee and the campaign of Hillary Clinton….

The Court assumes without deciding that the Anti-SLAPP Act applies only to conduct that is protected by the First Amendment…. [But] Plaintiffs have not cited, and the Court is not aware of, any case holding that the defenses that a defendant in a defamation case may assert under D.C. law or the First Amendment depend on whether the defendant is a U.S. citizen or entity.

{It is ironic that Plaintiffs, who are non-resident aliens with Russian and/or Israeli citizenship, argue that non-resident aliens do not have rights that the First Amendment requires a U.S. court to respect—while petitioning a U.S. court for a redress of their grievances and invoking a constitutional right to conduct discovery. Plaintiffs do not explain why non-resident aliens have the same rights as U.S. citizens to bring defamation actions, but non-resident aliens do not have the same rights as U.S. citizens to defend themselves.} …

[A]dvocacy on issues of public interest has the capacity to inform public debate, and thereby furthers the purposes of the First Amendment, regardless of the citizenship or residency of the speaker…. [T]he First Amendment “guarantees are not for the benefit of the press so much as for the benefit of all of us.” “It is now well established that the Constitution protects the right to receive information and ideas.” As a result, the interest of U.S. citizens in receiving information that the First Amendment protects does not depend on whether the speaker is a U.S. citizen or resident.

It is in this context that the Court evaluates Plaintiffs’ argument that the First Amendment does not apply to Defendants’ speech. It is well established that non-citizens “enjoy certain constitutional rights.” United States v. Verdugo-Urquidez (1990) indicates that a non-citizen must have “substantial connections with the country” before he can “receive constitutional protections.” See Johnson v. Eisentrager (1950) (“The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society.”)….

[T]he Court need not undertake to determine, as a general matter, how “substantial” a non-resident alien’s connections with this country must be to merit the protections of the First Amendment for speech in the United States. The Court need not define the precise line because Mr. Steele and Orbis and their speech have ample connections with the United States that are clearly substantial enough to merit First Amendment protection.

According to Plaintiffs’ own complaint, U.S. clients hired Mr. Steele and Orbis, and a U.S. presidential candidate was the subject of the investigation that they were hired to conduct. Furthermore, Mr. Steele was in the United States when he briefed U.S.-based media organizations about the results of his investigation, and Plaintiffs do not dispute that Mr. Steele was lawfully present in the United States when he provided his briefings. These U.S.-based media organizations reported on allegations in the Steele Dossier in the United States.

Plaintiffs themselves allege that the Court has jurisdiction because “Orbis and Steele transacted business in the District of Columbia.” Plaintiffs’ summary of their jurisdictional allegations is apt: “In sum, Steele, acting for himself and Orbis, has engaged in a persistent course of conduct, often with Fusion and Simpson, intended to have and which did have effects in the District, by meeting with District based media and government employees to bring his reports on ‘Russia matters’ to their attention.”

{The Court does not suggest that aliens who are not legally present in the United States automatically lack First Amendment rights. This case does not present that issue.}

Moreover, Plaintiffs recognize that Mr. Steele had substantial ongoing connections with the United States even before U.S. clients hired him to gather information relating to the 2016 presidential election:

“Steele, on behalf of himself and Orbis, has engaged in other ongoing business relationships with entities located in the District. Steele and Orbis have been retained repeatedly by the District-based F.B.I. to assist in various investigations between 2009 and 2016, and, as alleged above, Steele and Orbis have had an ongoing professional relationship with Fusion for years. And as also noted above, according to Winer, during his 2013-2016 employment at the State Department in the District, Steele/Orbis provided over 100 intelligence reports, many of which Winer shared with other State Department officials.”

Plaintiffs argue that “Defendants must show that they have, in some form, assumed the obligations of the people,” and Defendants assumed at least one important “obligation” of “the people”—by accepting the Court’s jurisdiction, Defendants assumed the obligation to pay any judgment that might ultimately be entered against them in a U.S. court. By assuming this obligation, Defendants also assumed the concomitant right to raise the same defenses available to U.S. citizens and resident aliens who are sued for defamation.

Plaintiffs rely on Hoffman v. Bailey (E.D. La. 2014), which held that a British national could not invoke the Louisiana Anti-SLAPP Act because he did not have First Amendment protection. However, in Hoffman, the defendant’s only contact with the United States was that he sent the email that formed the basis of the defamation claim to a Louisiana resident. Here, Defendants and their speech have far more substantial contacts with the United States.

Because Defendants have substantial and ongoing connections with the United States and their speech in the United States concerns matters of public concern in the United States, Defendants’ speech is protected by the First Amendment. Therefore, even if the Anti-SLAPP Act protects only speech also protected by the First Amendment their speech is covered by the Act….

My view (short version), which is consistent with the result of this case but which would likely go a bit further: Speech by people who aren’t U.S. citizens (or perhaps permanent residents) outside the U.S. is often unprotected by the First Amendment against various kinds of American government retaliation. “[I]t is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.” But it seems to me that, when U.S. courts are asked in the U.S. to impose liability based on speech, they should be constrained by the First Amendment, whether the speakers are foreigners or Americans.

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On behalf of myself and several other Volokh Conspiracy contributors, I would like to post the following statement on President Trump’s refusal to recognize the result of the presidential election.

I should also take this opportunity to note that readers should be cautious in drawing conclusions about the views of those VC bloggers who did not sign the letter. Some might have chosen not to sign because of a general opposition to signing group statements, because they believe they don’t know enough about the factual disputes behind the various claims of fraud,  or for other reasons unrelated to views on the substance of the issues covered.

Here is the statement:

We write as a group of conservative and libertarian legal scholars specializing in constitutional law and related fields. We voted for different candidates in the recent election, and a number of us voted for Republican candidates for Congress and other offices.

We call on President Donald Trump and the Republican Party to recognize that he has lost the 2020 election and to stop promoting unsubstantiated conspiracy theories about alleged voter fraud. The President’s lawsuits seeking to overturn election results have been repeatedly rejected by state and federal courts, and  there is no basis for believing that fraud occurred on anything like the massive scale necessary to call the results into question.

Our constitutional system relies on American citizens and their representatives being honest with themselves and with each other. The President’s account of the election is false, and those who continue to promote it are undermining constitutional democracy and sowing the seeds of needless future distrust and conflict. Those elected officials who privately reject the president’s account, but have kept quiet so far, should say so, rather than promoting further uncertainty among their constituents by their silence.

Michael Abramowicz
Oppenheim Professor of Law
George Washington University

David E. Bernstein
University Professor
Antonin Scalia Law School
George Mason University

Dale Carpenter
Judge William Hawley Atwell Chair of Constitutional Law and Professor of Law
SMU Dedman School of Law

Irina D. Manta
Professor of Law and Founding Director of the Center for Intellectual Property Law (CIPL)
Maurice A. Deane School of Law at Hofstra University

David G.Post
Professor of Law (ret.)
Temple University Law School

Stephen E. Sachs
Colin W. Brown Professor
Duke University School of Law

Ilya Somin
Professor of Law
Antonin Scalia Law School
George Mason University

Alexander “Sasha” Volokh
Associate Professor of Law
Emory Law School

Titles and institutional affiliations listed for identification purposes only.

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