Tag: constitution

  • Court Halts Key Portions of Trump’s Elections Executive Order

    Judge Indira Talwani (D. Mass.) ordered the government to halt implementation of key portions of President Trump’s executive order on elections.

    The ruling prevents federal government agencies from compiling a list of eligible voters; it prevents the Postal Service from initiating rulemaking on mail-in ballots; and it halts the government from enforcing certain provisions against states.

    While the ruling is a sharp rebuke, the Trump Administration will surely appeal.

    The case, State of California v. Trump, tests the constitutionality of three portions of President Trump’s EO on “Ensuring Citizenship Verification and Integrity in Federal Elections.” Twenty-three states sued to halt these provisions:

    (1) Section 2 of the EO, which directs the Director of the U.S. Citizenship and Immigration Services, in coordination with the Commissioner of the Social Security Administration, to compile lists of citizens eligible to vote in a specific state, and directs the Department of Homeland Security to transmit these “Confirmed Citizen Lists” to each state at least 60 days before a scheduled federal election;

    Section 3, which directs the Postmaster General to initiate rulemaking regarding “election mail design,” to provide each state with a list of individuals “enrolled with the USPS,” and not to transmit a ballot of any voter who hasn’t been “enrolled”;

    Sections 2 and 5, which describe certain federal criminal offenses and require the Attorney General to prioritize the prosecution of state and local officials who issue ballots to individuals who are not eligible to voter; and

    Section 5, which strongly suggests that states retain voting records for five years.

    The court ruled that the President lacked authority to issue the EO in each of these areas.

    The court started by noting that the Voter Qualifications Clause (for members of the House), the Seventeenth Amendment (for members of the Senate), the Elections Clause, and the Electors Clause all say that states, not the federal government, have default power over federal elections. At the same time, the court acknowledged that Congress has authority to “make or alter” state election laws under the Elections Clause, and that it has done so through several acts, including the Help America Vote Act.

    But the court said that nothing in the Constitution or federal law gave the President the power to issue these orders.

    As to compiling the lists, the court simply held that the President has no power to order this.

    As to USPS regulations, the court said that USPS lacks statutory authority to issue regulations on mail-in voting, and that in any event the EO requires USPS to act on a timeline that’s inconsistent with federal law.

    As to enforcement, the court held that to the extent that the EO attempts to intimidate state and local election officials to use the federally created eligible-voter lists, it’s invalid.

    Finally, as to voting-record retention, the court said that Congress set a twenty-two-month retention requirement, and that the President has no authority to extend it.

  • Juneteenth Celebration and Educational Resources

    Some resources:

  • Court Stops National Park Service from Removing Protestors’ “8647” Flag

    Judge Randolph D. Moss (D.D.C.) issued a temporary restraining order yesterday preventing the National Park Service from revoking the demonstration permit of a protestor or removing the protestor’s flag, which included the numbers “8647.” The court rejected NPS’s arguments that the flag amounted to a true threat or incitement.

    The ruling is temporary, so the court’s assessment goes to the likelihood of success on the merits (and not necessarily the actual success). Still, it’s hard to see how NPS could prevail as the case moves forward.

    The case, Accountability Now USA v. Griess, arose when NPS officers instructed protestors to take down their “8647” flag from their 24/7 protest tent and threatened to revoke their free-speech permit if it reappeared. Accountability Now amended an existing complaint against NPS (for threatening to revoke the permit for other yet other signs that the organization displayed at the site) and sought a TRO.

    The court ruled that Accountability Now was likely to succeed on the merits of their free-speech claim. The court first noted that content-based restrictions on speech, especially political speech, are inherently suspect and generally invalid under the First Amendment. It then rejected NPS’s arguments that the flag represented a “true threat” or “incitement,” two exceptions to the First Amendment’s general prohibition on content-based restrictions on speech.

    “‘True threats’” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black (2003). In assessing whether a statement constitutes a “true threat,” courts look to the entire factual context of the statement. A statement must meet both an objective standard and “a subjective mental-state requirement . . . .” Counterman v. Colorado (2023). As to the subjective standard, a speaker must “consciously disregard[] a substantial and unjustifiable risk that the conduct will cause harm to another.” Id.

    The court said that the overall context of the flag didn’t meet this test. It pointed to a dictionary definition, which said that “86” mostly means “to throw out” or “to get rid of”; the fact that the flag contained no symbol of violence and was part of a months-long demonstration demanding “the impeachment and removal of President Trump”; and the fact that a protestor earlier told an NPS officer that they “want[ed] Trump to live forever” so that he could “rot in jail.”

    “Incitement” is speech “directed [at] producing imminent lawless action and likely to incite or produce such action.” Brandenburg v. Ohio (1969). Like “true threats,” “incitement” also depends on context. It also requires the speaker to have “specific intent, presumably equivalent to purpose or knowledge.” Id.

    The court ruled that the flag didn’t meet this test, either. As with “true threats,” the surrounding context showed that the flag did not constitute “incitement.”