Tuesday, November 24, 2020

Lying Should Be Expensive

We prosecute people for perjury when they lie under oath. Someone can be sued for defamation if he lies about another person. But it seems that someone can publish fake news with impunity. Yet fake news can cause more widespread damage than perjury or defamation.

Someone who commits perjury can thwart justice in a single court case. Defaming someone can ruin his reputation, and hurt is family. These are both serious evils. But spreading fake news can damage an entire society, causing large groups of people to act based on disinformation.

Those who perpetrate lies to the public can in no way be considered to be acting for the public benefit. One who does such a thing clearly hopes that people will act based on false information; reasoning that people would act differently if they were properly informed. Considering the latest, if the false information that there was pervasive fraud in the recent presidential election had not been promulgated, there would be no protests over the results. This is not to say that protests of themselves are a bad thing. But it is a bad thing to inject disquietude into the populace when there is no reason for it. And it is seriously harmful to convince a large segment of the population that our nation’s electoral system can’t be trusted, since the only alternative is a system where there are no elections.

People who purposely spread false news must be dealt with. But it isn’t the sort of thing that you want to entrust to governments. We know all too well that the machinery of government can be worked to persecute political opponents. But we have a legal system that allows aggrieved parties to bring their own court actions.

The spreaders of fake news eventually must specifically name someone. For example, during the campaign there were voices to be heard saying that Joe Biden is a socialist. That’s a ridiculous accusation. But it very well could have cost him votes. Biden should be able to sue anyone who disseminated that preposterous lie, to include President Trump.

True, Biden is a public figure, and we do have freedom of speech in this country. But that doesn’t mean that he, or any other public figure, must weather disinformation. It simply requires that he prove that anyone he sues for defamation intentionally spoke or wrote of him falsely, or with reckless disregard of the truth. [1] 

But aren’t lying politicians a part of our culture? Indeed. But it should stop. And those victimized should start utilizing the courts against libel and slander. It may seem to some office holders that a better look is to rise above it. On the other hand, it is evident that the unscrupulous are gaining significant advantages from public credulity.

Perhaps if lying started to cost liars money, it would reduce this public nuisance considerably. It would also make our political campaigns a lot more civil.

Thursday, November 19, 2020

Roadblocks to Dictatorship

President Trump has invited Michigan’s Republican legislators to the White House for a meeting on Friday [1], and there has been speculation that he will try to persuade the state lawmakers to send electors who will vote for him rather than Vice-President Joe Biden, who has won the election in that state. [2] Would that work?

Article II, Section 1, Clause 2 of the U.S. Constitution provides that electors are to be appointed in the manner that “the Legislature thereof may direct....” [3] This language seems to mean that a state legislature could appoint electors in total disregard of the state’s popular vote. And if there was nothing other than the Constitution to consult, that would, in fact, be the case.

But there are federal statutes to consider, according to which electors are to be chosen on the Tuesday after the first Monday in November. [4] Of course, the counting of the popular vote can take some time past that date, so the electors can be chosen on a subsequent day in the manner that the state legislature has prescribed. [5]

Now states are required, by federal statute, to provide for the final determination of any controversy or contest regarding the appointment of their electors. [6] Critical here, is that state laws on point must be “enacted prior to the day fixed for the appointment of the electors....” In other words, a state legislature can’t simply change the rules after the election.

So if Donald Trump wants the Michigan State Legislature, Republican by virtue of gerrymandering, to send electors to vote for him, federal law will not permit it. The only gambit he could employ would be to convince Republican state legislatures to appoint electors against the will of the people of their states, with the idea of arguing before, ultimately, the U.S. Supreme Court, that the statutory requirement that state legislatures have to make their rules before election day is an unwarranted and unconstitutional infringement of their power to appoint electors in any manner they please.

We can hope (perhaps, against hope) that Republican politicians aren’t quite that devoted to Donald Trump. But there is something else that the Republican Party might try.

When the electoral votes are read before Congress, the presiding officer asks for objections. Objections have to be in writing, and signed by both a member of the Senate and the House of Representatives. [7] The respective houses both then separate, to make their determinations. This isn’t really a way for the Republican Party to overturn the results of the election, because if the Senate and the House of Representatives don’t agree, the votes of the electors certified by the state’s governor are counted, and that’s the end of it. But it can be a nuisance, especially if done repeatedly. And it might be a way for Republican members of Congress to demonstrate to Donald Trump’s devotees among the electorate that they gave the last full measure of devotion.

Friday, November 13, 2020

Federalism at Your Convenience

With all of the failed legal challenges to the election by Donald Trump, there doesn’t appear to be any meaningful way for him to overturn the results at this point. Biden partisans can relax notwithstanding the strange behavior originating from the White House.

Those who pay attention to television news may have heard that Mr. Trump has one colorable claim. The Pennsylvania Supreme Court, confronted with a drop dead deadline for votes to be received (8 p.m. on election day), and the numerous applications for mail-in ballots due to the pandemic, decided on state constitutional grounds to extend that deadline by three days. [1]

This might seem to be unassailable, and it should be. Electors for each state are chosen in the manner that it’s legislature decides. [2] And the highest court in each state has the final say on what the law in that state is, because the U.S. Constitution grants jurisdiction to declare the law to the federal judiciary only in cases involving federal law. Federal courts apply state law when there are no federal questions involved, and the matter comes to the federal courts in some other way, such as the parties are from different states. [3] (The Constitution is, of course, federal law, and that is why state laws can be struck down by federal courts on federal constitutional grounds.)

This is a pretty basic understanding. But, apparently, not by everybody.

The Republican Party of Pennsylvania, the losers in the Pennsylvania case, petitioned the Supreme Court to review the matter, and requested that the case be expedited because of the upcoming election. That request was denied. But Justice Alito, joined by Justices Thomas and Gorsuch, dissented from that denial. He felt that the case should be heard right away. [4]  

His reasoning was that the state statute that provides for the drop dead date should have been applied more strictly by the Pennsylvania Supreme Court, apparently disapproving of the way the court dealt with its own state constitutional law. In other words, he wanted the United States Supreme Court to pass on how the Pennsylvania Supreme Court interpreted its own state’s law.

Now Justice Alito is widely considered to be a “conservative” Justice, as are Justices Thomas and Gorsuch. Up to now, we have considered “conservatives” to be more solicitous of federalism. But that thinking didn’t seem to prevail upon Justice Alito this time. Fortunately, he was in the minority.

But the fact that this kind of thinking exists on the Supreme Court should cause concern. Justice Alito was registering his views only in connection with a decision on whether to expedite the appeal, not on a final decision. But the fact that three Supreme Court Justices are of the view that they are empowered to overturn a state supreme court’s decision about its own state law is alarming. If people decide that the Justices make decisions on partisan grounds, they can point to Justice Alito’s opinion as evidence. That’s bad for the Court, and bad for public confidence in the Court; and that’s bad for the country.