Recent judicial decisions indicate our courts remain a bulwark against incursions by those who would subvert our democratic institutions.
Donald Trump’s frontrunner status for the Republican nomination, election deniers’ leadership roles in Congress and state and local governments, continued harassment and intimidation of election workers, and the recent ProPublica revelations of the ethical boundaries crossed by two conservative Supreme Court justices and their conservative patrons are daily reminders of the imminent dangers that threaten our democratic institutions. Systemic problems relating to voting rights – including gerrymandering, closed primaries, and plurality voting – seem almost quaint in view of the multi-front attacks on American democracy that we are seeing today.
Yet, despite the sorry news of influence peddling surrounding Justices Thomas and Alito, justice has so far prevailed in many cases relating to those attacks. More than 50 cases brought by Trump’s attorneys in the immediate aftermath of the 2020 election were dismissed by the courts. More than 300 of those who stormed the Capitol on January 6 are getting the jail time they deserve. And in the Dominion Voting Systems lawsuit against Fox News, Fox agreed to pay almost $800 million to avoid a trial. The legal system is working as it should.
That doesn’t mean that some Republicans are not trying to alter the legal landscape to undermine election oversight and better serve their electoral goals. Republican-controlled governments in 18 states have passed over 100 laws that enact, expand, or increase criminal penalties for such actions as failing to adequately maintain voter lists (a task that is made more difficult in states that have withdrawn from ERIC). In Georgia, state Senator Colton Moore (R) sought to impeach Fulton County prosecutor Fani Willis, who is prosecuting Trump and 18 others for conspiracy in an attempt to overturn the 2020 election results. Others in the Republican-controlled legislature have sought to limit Willis’ activities through a new oversight panel created in May. The panel was designed to curb “far-left prosecutors” who are “making our communities less safe”, in the words of Governor Brian Kemp (R), who signed the legislation creating the panel.
And yet, it was Kemp who dismissed both the impeachment and oversight efforts, citing a lack of evidence to suggest that Willis was not doing her job.
The lesson here is that the law is malleable and may not always bend toward fairness and accountability. For now, however, courts in Alabama, Georgia, Mississippi, and New York have recently demonstrated that the legal landscape continues to uphold our democratic principles and the rule of justice on which they depend.
Victory Against Gerrymandering in Alabama
After a two-year court battle, voters in Alabama finally will have the opportunity for fair representation when they vote in next year’s elections. Alabama’s Republican-controlled legislature repeatedly defied decisions by the US Supreme Court and a federal district court by refusing to redraw its congressional district maps to include two majority Black districts. After Republicans withdrew their final appeals on September 29, the map created by a special master and selected by the federal district court will be implemented in 2024. Two of Alabama’s seven congressional districts (28% of the districts) will be majority Black for the first time; 27% of the state’s population is Black according to the latest census.
Lawsuits Seek to Defend Americans Against Election Lies
Two defamation lawsuits are giving hope that there is some recourse for Americans to defend themselves against the spread of lies that are undermining the public’s trust in our elections.
A federal judge issued a default judgment against former Trump attorney Rudy Giuliani, finding him liable for defamation of two Georgia election workers. Judge Beryl Howell also ordered Giuliani to pay $133,000 for repeated failure to turn over documents and other material requested by the election workers’ attorneys. Giuliani has admitted in a court filing that he made false public comments about the two workers. The trial continues in order for the court to determine whether the workers were harmed by Giuliani’s false accusations. Giuliani has already been suspended from practicing law in New York and Washington, DC, and he has been recommended for disbarment by the Washington, DC Bar.
In the second defamation case, US District Judge Steven Grimberg has allowed a suit brought by a Georgia man to proceed, rejecting an effort by the defendants to have the case dismissed. The lawsuit claims that Dinesh D’Souza and others involved in the making of the film, “2000 Mules”, falsely claimed that the plaintiff, Mark Andrews, had committed a crime when he delivered “fraudulent votes” to a drop box. The Georgia Bureau of Investigation determined that Andrews had legally dropped off valid votes. Separately, a fact check by Reuters did not turn up any evidence to support the film’s main claims.
Court Says Mississippi Felons Can Vote, Overrules Jim Crow Legacy
In a 2-1 decision, a panel of the 5th US Circuit Court of Appeals ruled that a provision of the Mississippi constitution banning for life a felon’s right to vote violated the US Constitution’s stand against cruel and unusual punishment. The ruling gives felons who have completed their sentence the opportunity to restore their voting rights. The decision accepts as fact that the Mississippi constitution, which was written in 1890, was “adopted in reaction to the expansion of black suffrage and other political rights during Reconstruction.” The decision has been appealed and will be heard by the full 5th Circuit Court. (The “full court” is estimated to include 20 judges, but due to the construction of and rules governing the court, this number can vary based on the nature of the case and its timing.)
Judge Holds Trump Accountable
Judge Arthur Engoron, who is overseeing a civil lawsuit brought by New York’s Attorney General, issued two separate decisions holding Donald Trump accountable for his actions. In one, he found that Trump had defrauded banks, insurers, and other business partners, and ruled that he would have to relinquish control of some of his businesses in the state.
Separately, Trump was held accountable for his verbal attacks on public servants. Responding to a social media post by Trump that suggested one of the court’s staff people was working with Democrats, Judge Engoron made clear that such “disparaging, untrue and personally identifying” statements would not be tolerated. He ordered Trump to delete the post and imposed a limited gag order on him. He also warned all participants in the case that any personal attacks on court personnel would be met with “serious sanctions”
Protecting Americans, Holding Responsible Parties Accountable
Fortunately, there are many non-partisan organizations ready to meet the variety of immediate threats – threats that include new state legislation that makes it more difficult to vote or to support the election process, harassment and intimidation of election workers and court officials by election deniers, and a court system that is increasingly mistrusted by the public. Organizations that are pushing back on the legal front include:
Southern Poverty Law Center: SPLC has been fighting for racial justice since 1971. It is one of the organizations supporting the lawsuit in Mississippi.
Election Official Legal Defense Network: EOLDN was created in response to the election denialism and threats against election workers following the 2020 presidential election. The organization connects election officials with pro bono legal assistance to bring lawsuits against those who threaten them and to defend themselves against state legislation that potentially criminalizes aspects of their work.
States Newsroom: States Newsroom employs a philanthropic business model to restore focused coverage of state politics. Since 2020, it has tracked 120 election-related criminal penalties that have been enacted, expanded, or increased in severity – 102 of which are in 18 states that are Republican-controlled.
Sources
ProPublica, “Friends of the Court”, 2023, https://www.propublica.org/series/supreme-court-scotus, accessed Oct 10, 2023
Reuters, “Fact check: Courts have dismissed multiple lawsuits of alleged electoral fraud presented by Trump campaign”, Feb 21, 2021, https://www.reuters.com/article/uk-factcheck-courts-election/fact-check-courts-have-dismissed-multiple-lawsuits-of-alleged-electoral-fraud-presented-by-trump-campaign-idUSKBN2AF1G1, accessed Oct 11, 2023
Kierra Frazier, “Here are the Longest Jan. 6 Prison Sentences Handed Down So Far”, Politico, Sep 5, 2023, https://www.politico.com/news/2023/09/05/enrique-tarrio-prison-sentencing-proud-boys-00114104, accessed Oct 12, 2023
David Bauder, Randall Chase, Geoff Mulvihill, “Fox, Dominion reach $787M settlement over election claims”, AP, Apr 18, 2023, https://apnews.com/article/fox-news-dominion-lawsuit-trial-trump-2020-0ac71f75acfacc52ea80b3e747fb0afe, accessed Oct 12, 2023
Kira Lerner, “Election Officials Risk Criminal Charges Under 31 New Gop-Imposed Penalties”, Kansas Reflector, Jul 22, 2022, https://kansasreflector.com/2022/07/17/election-officials-risk-criminal-charges-under-31-new-gop-imposed-penalties/, accessed Oct 9, 2023
Jeff Amy, “Georgia Enacts Law Letting Panel Punish, Oust Prosecutors”, AP, May 5, 2023, https://apnews.com/article/brian-kemp-georgia-prosecutor-district-attorney-remove-7987cd538ab3ccdc713ae4d2b2aec32b, accessed Oct 11, 2023
Greg Bluestein, “Kemp Rejects Talk of Special Session, Says Punishing Fani Willis Carries Risks”, The Atlanta Journal-Constitution, Aug 31, 2023, https://www.ajc.com/politics/kemp-rejects-talk-of-special-session-warns-of-risks-of-punishing-fani-willis/I4JZYJIORNACFKY2COSFE3VCSI/, accessed Oct 11, 2023
Madeleine Greenberg, “After Unprecedented Defiance, Alabama Finally Has a Fair Congressional Map for 2024”, Democracy Docket, Oct 5, 2023, https://www.democracydocket.com/news-alerts/after-unprecedented-defiance-alabama-has-a-fair-congressional-map-for-2024/, accessed Oct 8, 2023
US Census, “Quick Facts: Alabama”, https://www.census.gov/quickfacts/fact/table/AL/PST045222, accessed Oct 7, 2023
Dan Mangan, “Rudy Giuliani liable for defaming Georgia election workers, hit with sanctions by judge”, CNBC, Aug 30, 2023, https://www.cnbc.com/2023/08/30/judge-orders-default-judgment-sanctions-against-rudy-giuliani-in-election-workers-lawsuit.html, accessed Oct 10, 2023
Kate Brumback, “Giuliani concedes he made public comments falsely claiming Georgia election workers committed fraud”, AP, Jul 26, 2023, https://apnews.com/article/giuliani-georgia-election-workers-lawsuit-false-statements-afc64a565ee778c6914a1a69dc756064#, accessed Oct 10, 2023
Jeremy Stahl, “The D.C. Bar’s Dry Takedown of Rudy Giuliani Is Brutal”, Slate, Jul 10, 2023, https://slate.com/news-and-politics/2023/07/dc-bar-rudy-giuliani-takedown-disbarment.html, accessed Oct 10, 2023
Alison Durkee, “Rudy Giuliani’s Mounting Legal Trouble: Here Are All The Issues Trump Attorney Faces Amid Hunter Biden Lawsuit”, Forbes, Sep 26, 2023, https://www.forbes.com/sites/alisondurkee/2023/09/26/rudy-giulianis-mounting-legal-trouble-here-are-all-the-issues-trump-attorney-faces-amid-hunter-biden-lawsuit/?sh=8ec05515a581, accessed Oct 9, 2023
Mark Niesse, “Judge Shoots Down Attempt to Dismiss ‘2000 Mules’ Defamation Lawsuit”, Atlanta Journal-Constitution, Oct 3, 2023, https://www.ajc.com/politics/judges-ruling-clears-path-for-defamation-case-against-2000-mules/H3EWZJNR7BHCTHBSQ6W5YQ6O74/#, accessed Oct 9, 2023
Reuters Fact Check, “Fact Check-Does ‘2000 Mules’ provide evidence of voter fraud in the 2020 U.S. presidential election?”, May 27, 2022, https://www.reuters.com/article/factcheck-usa-mules/fact-check-does-2000-mules-provide-evidence-of-voter-fraud-in-the-2020-u-s-presidential-election-idUSL2N2XJ0OQ, accessed Oct 9, 2023
Rachel Selzer, “5th Circuit Strikes Down Mississippi’s Jim Crow Era Felony Disenfranchisement Provision”, Democracy Docket, Aug 4, 2023, https://www.democracydocket.com/news-alerts/5th-circuit-strikes-down-mississippis-jim-crow-era-felony-disenfranchisement-provision/#:~:text=4%2C%20the%205th%20U.S.%20Circuit,on%20cruel%20and%20unusual%20punishment., accessed Oct 9, 2023
Bobby Harrison, “Full 5th Circuit to hear arguments on whether felony voting ban is unconstitutional”, Mississippi Today, Sep 29, 2023, https://mississippitoday.org/2023/09/29/5th-circuit-felony-disenfranchisement/, accessed Oct 9, 2023
James L. Dennis, “Dennis Hopkins, et al. v. Secretary of State Delbert Hosemann”, US Court of Appeals for the Fifth Circuit, Aug 4, 2023, https://www.democracydocket.com/wp-content/uploads/2023/08/Hopkins.pdf, accessed Oct 8, 2023
Judge John Mott email to George Linzer, Oct 10
Michael R. Sisak, “Judge rules Donald Trump defrauded banks and insurers while building real estate empire”, AP, Sep 26, 2023, https://apnews.com/article/donald-trump-letitia-james-fraud-lawsuit-1569245a9284427117b8d3ba5da74249, accessed Oct 9, 2023
Michael R. Sisak, Jennifer Peltz, Bobby Caina Calvin, “New York judge issues limited gag order after Trump sends disparaging post about court clerk”, AP, Oct 3, 2023, https://apnews.com/article/trump-letitia-james-fraud-lawsuit-new-york-371675a2482c1de01f516f29b5a43d33, accessed Oct 9, 2023
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