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      I Used to Think the Remedy for Bad Speech Was More Speech. Not Anymore.

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      I used to believe that the remedy for bad speech is more speech. Now that seems archaic. Just as the founders never envisioned how the right of a well-regulated militia to own slow-loading muskets could apply to mass murderers with bullet-spewing military-style semiautomatic rifles, they could not have foreseen speech so twisted to malevolent intent as it is now.Cyber-libertarianism, the ethos of the internet with roots in 18th-century debate about the free market of ideas, has failed us miserably. Well after the pandemic is over, the infodemic will rage on — so long as it pays to lie, distort and misinform.Just recently, we saw the malignancies of our premier freedoms on display in the mass shooting in Boulder, Colo. At the center of the horror was a deeply disturbed man with a gun created for war, with the capacity to kill large numbers of humans, quickly. Within hours of the slaughter at the supermarket, a Facebook account with about 60,000 followers wrote that the shooting was fake — a so-called false flag, meant to cast blame on the wrong person.So it goes. Toxic misinformation, like AR-15-style weapons in the hands of men bent on murder, is just something we’re supposed to live with in a free society. But there are three things we could do now to clean up the river of falsities poisoning our democracy.First, teach your parents well. Facebook users over the age of 65 are far more likely to post articles from fake news sites than people under the age of 30, according to multiple studies.Certainly, the “I don’t know it for a fact, I just know it’s true” sentiment, as the Bill Maher segment has it, is not limited to seniors. But too many older people lack the skills to detect a viral falsity.That’s where the kids come in. March 18 was “MisinfoDay” in many Washington State high schools. On that day, students were taught how to spot a lie — training they could share with their parents and grandparents.Media literacy classes have been around for a while. No one should graduate from high school without being equipped with the tools to recognize bogus information. It’s like elementary civics. By extension, we should encourage the informed young to pass this on to their misinformed elders.Second, sue. What finally made the misinformation merchants on television and the web close the spigot on the Big Lie about the election were lawsuits seeking billions. Dominion Voting Systems and Smartmatic, two election technology companies, sued Fox News and others, claiming defamation.“Lies have consequences,” Dominion’s lawyers wrote in their complaint. “Fox sold a false story of election fraud in order to serve its own commercial purposes, severely injuring Dominion in the process.”In response to the Smartmatic suit, Fox said, “This lawsuit strikes at the heart of the news media’s First Amendment mission to inform on matters of public concern.” No, it doesn’t. There is no “mission” to misinform.The fraudsters didn’t even pretend they weren’t peddling lies. Sidney Powell, the lawyer who was one of the loudest promoters of the falsehood that Donald Trump won the election, was named in a Dominion lawsuit. “No reasonable person would conclude that the statements were truly statements of fact,” her lawyers wrote, absurdly, of her deception.Tell that to the majority of Republican voters who said they believed the election was stolen. They didn’t see the wink when Powell went on Fox and Newsmax to claim a massive voter fraud scheme.Dominion should sue Trump, the man at the top of the falsity food chain. The ex-president has shown he will repeat a lie over and over until it hurts him financially. That’s how the system works. And the bar for a successful libel suit, it should be noted, is very high.Finally, we need to dis-incentivize social media giants from spreading misinformation. This means striking at the algorithms that drive traffic — the lines of code that push people down rabbit holes of unreality.The Capitol Hill riot on Jan. 6 might not have happened without the platforms that spread false information, while fattening the fortunes of social media giants.“The last few years have proven that the more outrageous and extremist content social media platforms promote, the more engagement and advertising dollars they rake in,” said Representative Frank Pallone Jr., chairman of the House committee that recently questioned big tech chief executives.Taking away their legal shield — Section 230 of the Communications Decency Act — is the strongest threat out there. Sure, removing social media’s immunity from the untruthful things said on their platforms could mean the end of the internet as we know it. True. But that’s not necessarily a bad thing.So far, the threat has been mostly idle — all talk. At the least, lawmakers could more effectively use this leverage to force social media giants to redo their recommendation algorithms, making bogus information less likely to spread. When YouTube took such a step, promotion of conspiracy theories decreased significantly, according to researchers at the University of California, Berkeley, who published their findings in March 2020.Republicans may resist most of the above. Lies help them stay in power, and a misinformed public is good for their legislative agenda. They’re currently pushing a wave of voter suppression laws to fix a problem that doesn’t exist.I still believe the truth may set us free. But it has little chance of surviving amid the babble of orchestrated mendacity.Timothy Egan (@nytegan) is a contributing opinion writer who covers the environment, the American West and politics. He is a winner of the National Book Award and author, most recently, of “A Pilgrimage to Eternity.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Dominion Sues Fox News, Claiming Defamation in Election Coverage

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      Dominion Voting Systems, an election technology company, accused the news channel of advancing lies that devastated its reputation and business.Fox News and its powerful owner, Rupert Murdoch, are facing a second major defamation suit over its coverage of the 2020 presidential election, a new front in the growing legal battle over media disinformation and its consequences.Dominion Voting Systems, an election technology company that was at the center of a baseless pro-Trump conspiracy about rigged voting machines, filed a lawsuit on Friday that accused Fox News of advancing lies that devastated its reputation and business.Dominion, which has requested a jury trial, is seeking at least $1.6 billion in damages. The lawsuit comes less than two months after Smartmatic, another election tech company, filed a $2.7 billion lawsuit against Mr. Murdoch’s Fox Corporation and named several Fox anchors, including Maria Bartiromo and Lou Dobbs, as defendants.In a 139-page complaint filed in Delaware Superior Court, Dominion’s legal team, led by the prominent defamation firm Clare Locke, portrayed Fox as an active player in spreading falsehoods that Dominion had altered vote counts and manipulated its machines to benefit Joseph R. Biden Jr. in the election.Those claims were false, but they were relentlessly pushed by President Donald J. Trump’s lawyers, Rudolph Giuliani and Sidney Powell, in public forums, including appearances on Fox programs. In January, Dominion sued Mr. Giuliani and Ms. Powell for defamation. The company also sued Mike Lindell, the chief executive of MyPillow and a Trump ally who was also a frequent guest on Fox programs, as well as shows on other conservative media outlets. Each of those suits seeks damages of more than $1 billion.“The truth matters,” Dominion’s lawyers wrote in Friday’s complaint against Fox. “Lies have consequences. Fox sold a false story of election fraud in order to serve its own commercial purposes, severely injuring Dominion in the process. If this case does not rise to the level of defamation by a broadcaster, then nothing does.”In a statement on Friday, Fox said that its 2020 election coverage “stands in the highest tradition of American journalism” and pledged to “vigorously defend against this baseless lawsuit in court.”Fox Corporation previously filed a motion to dismiss the Smartmatic lawsuit, arguing that the false claims of electoral fraud made on its channels were part of covering a fast-breaking story of significant public interest. “An attempt by a sitting president to challenge the result of an election is objectively newsworthy,” Fox’s legal team wrote in the motion.The narrative that Mr. Trump and his allies told about Dominion was among the more baroque creations of the president’s monthslong effort to cast doubt on the 2020 election results and persuade Americans that Mr. Biden’s victory was not legitimate.Dominion, which was founded in 2002, is one of the largest manufacturers of voting machine equipment in the United States, and its machines were used by election authorities in at least 28 states last year, including several states carried by Mr. Trump.Allies of Mr. Trump falsely portrayed the company as biased toward Mr. Biden and argued, without evidence, that it was tied to Hugo Chávez, the long-dead Venezuelan dictator. John Poulos, Dominion’s founder, and other employees received harassing and threatening messages from people convinced that the company had undermined the election results.Fox News and Fox Business programs were among the mass-media venues where Mr. Trump’s supporters denounced Dominion. The lawsuit also cites examples where the Fox hosts, including Ms. Bartiromo and Ms. Dobbs, uncritically repeated or actively vouched for the false claims made by Mr. Giuliani and Ms. Powell.“Fox took a small flame and turned it into a forest fire,” Dominion wrote in the lawsuit. “As the dominant media company among those viewers dissatisfied with the election results, Fox gave these fictions a prominence they otherwise would never have achieved.”Dominion’s lawyers on Friday also cited an unusual argument made by Ms. Powell in a motion, filed on Monday, to dismiss the separate Dominion suit against her.In that motion, Ms. Powell’s lawyers asserted that because political language is often inexact, “reasonable people” would not accept Ms. Powell’s baseless claims as facts. Ms. Powell — who never allowed in public appearances that she was anything less than confident in her assertions — was essentially arguing that her conspiratorial claims were self-evidently hyperbolic and therefore not defamatory.Dominion says it recently lost major contracts with election officials in Georgia and Louisiana, adding that the company is now facing “the hatred, contempt, and distrust of tens of millions of American voters.”Right-wing media has already faced a reckoning of sorts from the threat of defamation litigation, a relatively novel tactic in a battle against disinformation that had previously been limited to ad boycotts and liberal public pressure campaigns.In February, two days after Smartmatic filed its suit, Fox Business canceled “Lou Dobbs Tonight,” its highest rated program. Newsmax, a pro-Trump cable channel also facing potential legal action, cut off Mr. Lindell when he repeated falsehoods about rigged voting machines. More

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      $325,000 Settlement for Teacher Over Trump References Removed From Yearbook

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      A New Jersey teacher was suspended in 2017 after, she says, the school administration told her to remove a reference to Mr. Trump from a student’s shirt in a photo.For years, Susan Parsons said she was told by administrators to remove “controversial” content from the high school yearbook in Wall Township, N.J.Ms. Parsons, a teacher and the yearbook adviser, said in court papers that she had to erase from a photo a feminist bumper sticker on a student’s laptop, Photoshop “fake” clothing onto shirtless students on a school trip to Bermuda and take out questionable hand gestures.But it wasn’t until 2017 that one particular edit thrust Ms. Parsons and the district into a national firestorm over free expression and political opinion.Ms. Parsons was suspended after removing a reference to Donald J. Trump on a student’s shirt, an action that led to widespread news media attention and death threats, according to a lawsuit she filed against the school district.Ms. Parsons said she had been told by the principal’s secretary to remove Mr. Trump’s name and his slogan, “Make America Great Again.” Ms. Parsons was then publicly scapegoated and muzzled by the district, the suit said.On Tuesday, the district’s board agreed to a $325,000 settlement to resolve her claims. About $204,000 will be paid to Ms. Parsons, and the rest will cover her legal fees and expenses, according to the settlement, which says the district’s insurers will cover the costs.“We are happy that Susan was able to achieve the justice she deserves,” Christopher J. Eibeler, her lawyer, said on Saturday. Under the agreement, previously reported by NJ.com, the district denied any wrongdoing.The district and its lawyer did not respond to requests for comment on Saturday. Cheryl Dyer, who was the superintendent at the time of the photo alteration, said she had retired from the district and could no longer speak for it.In her lawsuit, Ms. Parsons said she felt it was unethical to heavily edit yearbook photos and had complained to the administration that the “yearbook should reflect reality.”She was told to remove the reference to Mr. Trump on the student’s shirt in December 2016 after she went to the administration office to pick up drafts of the yearbook pages, the lawsuit said.Ms. Parsons said she had agreed to alter the photo but was confronted by the student after the yearbooks were handed out in June 2017. “Why did you edit the word Trump off of my shirt?” the student asked. She told him to talk to the principal.Later that day, one of the student’s parents emailed Ms. Parsons, saying the student’s picture had been “edited without his/our permission.”“I would like to understand who made that decision,” the email said, according to the lawsuit. “We felt the shirt he wore was appropriate.”Two other students then complained that a Trump logo and a quote attributed to Mr. Trump had been removed from the yearbook.Ms. Parsons said in her suit that the logo had been cropped out by a photo vendor and a student who worked on the yearbook had left the quote out by mistake. Nevertheless, outrage was already exploding in Wall, a township of about 25,000 near the Jersey Shore that voted for Mr. Trump in 2016 and in 2020.Ms. Parsons said the school administration had begun a public campaign to shield itself from responsibility by creating a “false narrative” that she was responsible for the changes.For example, Ms. Dyer sent a letter to parents on June 9, 2017, that stated, falsely, according to court papers, that “the high school administration was not aware of and does not condone any censorship of political views on the part of our students.”On June 12, 2017, the student whose logo had been removed appeared on one of Mr. Trump’s favorite programs, “Fox & Friends,” and said, “The people or person who did this should be held responsible because it is a violation of mine and other people’s First Amendment rights.”That same day, Ms. Parsons said, she was summoned to a meeting with Ms. Dyer and was suspended. Days later, Mr. Trump drew more attention to the issue, decrying “yearbook censorship” at the high school in a Facebook post.Susan Parsonsvia Susan ParsonsMs. Dyer said at the time that the yearbook alterations had amounted to “censorship and the possible violation of First Amendment rights.”“This allegation is being taken very seriously and a thorough investigation of what happened is being vigorously pursued,” she said in a statement in 2017. The student dress code did not prevent students from expressing their political views or support for a political figure, she said.Ms. Parsons told The New York Post, “We have never made any action against any political party.” That prompted Ms. Dyer to send an email to Ms. Parsons’s union representative to remind her that she did not have permission to speak to the newspaper, the lawsuit said.Ms. Parsons said the superintendent had cited a district media policy that was like a “gag order” that prevented her from defending herself.Ms. Parsons said she had been told to “white out” a sticker on the back of a student’s computer that read, “Feminism is the radical notion that women are people.”New Jersey Superior CourtMs. Parsons, who said in court papers that she had voted for Mr. Trump in 2016, said she was soon inundated with hate mail and harassing phone messages that called her a Nazi, a communist, anti-American and a “treasonous traitor liberal.”She said she had been afraid to use her name when ordering takeout food and feared that drivers might try to hit her when she went for bike rides.When she returned to school in September 2017, she said, she was “disrespected and ridiculed” by students and others who blamed her for removing the Trump references from the yearbook.She sued the district in May 2019 and retired in February 2020. 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      Court Dismisses Trump Campaign’s Defamation Suit Against New York Times

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      AdvertisementContinue reading the main storySupported byContinue reading the main storyCourt Dismisses Trump Campaign’s Defamation Suit Against New York TimesA New York State judge ruled that the opinion essay at the center of the suit was constitutionally protected speech.The campaign of former President Donald J. Trump sued three news organizations last year. Two of the lawsuits have been dismissed.Credit…Erin Schaff/The New York TimesMarch 9, 2021, 8:31 p.m. ETA New York State court on Tuesday dismissed a defamation lawsuit filed by the re-election campaign of Donald J. Trump against The New York Times Company, ruling that an opinion essay that argued there had been a “quid pro quo” between the candidate and Russian officials before the 2016 presidential election was protected speech.The Times published the Op-Ed, written by Max Frankel, a former executive editor of The Times who was not named as a defendant in the suit, in March 2019 under the headline “The Real Trump-Russia Quid Pro Quo.” Mr. Frankel made the case that in “an overarching deal” before the 2016 election, Russian officials would help Mr. Trump defeat Hillary Clinton in exchange for his taking U.S. foreign policy in a pro-Russia direction.Mr. Trump’s re-election campaign, Donald J. Trump for President Inc., filed the suit in New York State Supreme Court in February 2020, alleging defamation and accusing The Times of “extreme bias against and animosity toward” the campaign.In his decision on Tuesday, Judge James E. d’Auguste noted three reasons for dismissal. He wrote that Mr. Frankel’s commentary was “nonactionable opinion,” meaning it was constitutionally protected speech; that the Trump campaign did not have standing to sue for defamation; and that the campaign had failed to show that The Times had published the essay with “actual malice.”“The court made clear today a fundamental point about press freedom: We should not tolerate libel suits that are brought by people in power intending to silence and intimidate those who scrutinize them,” David McCraw, The Times’s deputy general counsel, said in a statement.A spokesman for Mr. Trump did not immediately reply to a request for comment.The Times had filed a motion to dismiss the case and impose sanctions on the campaign. The judge declined to impose sanctions.The Times was a frequent target of Mr. Trump’s attacks on the press during his four years in office. Before the suit, he accused the paper of “treason,” and he often threatened to take news organizations to court. Last year, the Trump campaign made good on the threats, filing defamation suits against The Times, CNN and The Washington Post. In November, a federal judge dismissed the suit against CNN. The Post suit is pending.In all three actions, the Trump campaign’s lawyer was Charles J. Harder, who represented Terry G. Bollea, the former professional wrestler known as Hulk Hogan, when he sued Gawker Media in 2012 over the publication of a sex video. That suit, secretly funded by the conservative tech investor Peter Thiel, resulted in a $140 million decision that prompted Gawker Media’s bankruptcy and sale.AdvertisementContinue reading the main story More

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      Representative Eric Swalwell Sues Trump Over Capitol Riot

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      #masthead-section-label, #masthead-bar-one { display: none }Capitol Riot FalloutTracking the ArrestsVisual TimelineInside the SiegeThe Lost HoursThe Oath KeepersAdvertisementContinue reading the main storySupported byContinue reading the main storyFormer Impeachment Manager Sues Trump Over Capitol RiotThe suit by Representative Eric Swalwell accuses Donald J. Trump of inciting the Jan. 6 attack and conspiring to prevent Congress from formalizing President Biden’s victory.“The horrific events of Jan. 6 were a direct and foreseeable consequence of the defendants’ unlawful actions,” according to the suit, filed by Representative Eric Swalwell, Democrat of California.Credit…Erin Schaff/The New York TimesMarch 5, 2021, 5:35 p.m. ETA House Democrat who unsuccessfully prosecuted Donald J. Trump at his impeachment trial sued him in federal court on Friday for acts of terrorism and incitement to riot, trying to use the justice system to punish the former president for his role in the Jan. 6 assault on the Capitol.The suit brought by Representative Eric Swalwell, Democrat of California, accuses Mr. Trump and key allies of whipping up the deadly attack and conspiring with rioters to try to prevent Congress from formalizing President Biden’s election victory.Echoing the case laid out in the Senate, which acquitted him, it meticulously traces a monthslong campaign by Mr. Trump to undermine confidence in the 2020 election and then overturn its results, using his own words and those of his followers who ransacked the building to narrate it.“The horrific events of Jan. 6 were a direct and foreseeable consequence of the defendants’ unlawful actions,” Mr. Swalwell asserts in the civil suit, filed in Federal District Court in Washington. “As such, the defendants are responsible for the injury and destruction that followed.”Though not a criminal case, the suit charges Mr. Trump and his allies with several counts including conspiracy to violate civil rights, negligence, incitement to riot, disorderly conduct, terrorism and inflicting serious emotional distress. If found liable, Mr. Trump could be subject to compensatory and punitive damages; if the case proceeds, it might also lead to an open-ended discovery process that could turn up information about his conduct and communications that eluded impeachment prosecutors.In addition to the former president, the suit names as defendants his eldest son, Donald Trump Jr., his lawyer, Rudolph W. Giuliani, and Representative Mo Brooks, Republican of Alabama, who led the effort to overturn Mr. Trump’s election defeat when Congress met on Jan. 6 to formalize the results.All three men joined Mr. Trump in promoting and speaking at a rally in Washington that day, which Mr. Swalwell says lit the match for the violence that followed with incendiary and baseless lies about election fraud.Read the Suit: Swalwell v. TrumpThe suit from Representative Eric Swalwell accuses Mr. Trump and several allies of inciting the attack and conspiring with rioters to try to prevent Congress from formalizing President Biden’s victory.Read DocumentA majority of the Senate, including seven Republicans, voted to find Mr. Trump “guilty” based on the same factual record last month, but the vote fell short of the two-thirds needed to convict him. Several Republicans who voted to acquit him, including Senator Mitch McConnell of Kentucky, the minority leader, concluded that Mr. Trump was culpable for the assault but argued the courts, not the Senate, were the proper venue for those seeking to hold him accountable.Phil Andonian, a lawyer representing Mr. Swalwell, said that the lawsuit was an answer to that call.That Mr. Trump “seems to be made of Teflon cuts in favor of finding a way to pierce that because he hasn’t really been held fully accountable for what was one of the darkest moments in American history,” he said in an interview.The lawsuit adds to Mr. Trump’s mounting legal woes as he transitions into life after the presidency and contemplates a political comeback. Another Democratic lawmaker, Representative Bennie Thompson of Mississippi, already filed suit on similar grounds in recent weeks with the N.A.A.C.P.Prosecutors in New York have active inquiries into his financial dealings, and in Georgia, prosecutors are investigating his attempts to pressure election officials to reverse his loss.In a statement, Jason Miller, an adviser to Mr. Trump, blasted Mr. Swalwell as a “a lowlife with no credibility” but did not comment on the merits of the case.Mr. Brooks rejected the claims, saying he would wear Mr. Swalwell’s “scurrilous and malicious lawsuit like a badge of courage.” He said he made “no apology” for his actions around the riot, when he urged rallygoers outside the White House to start “taking down names and kicking ass.”Both men resurfaced Republican attacks on Mr. Swalwell questioning his character based on his former association with a woman accused of being a Chinese spy. Mr. Swalwell broke off contact with the woman after he was briefed by American intelligence officials, and has not been accused of any wrongdoing.Mr. Giuliani, who urged the same crowd to undertake “trial by combat,” and a lawyer for Donald Trump Jr. did not respond to requests for comment.Both Mr. Thompson’s suit and Mr. Swalwell’s rely on civil rights law tracing to the 19th-century Ku Klux Klan Act, but their aims appear to differ. The earlier suit targets Mr. Trump’s association with right-wing extremist groups, naming several groups as defendants and explicitly detailing racialized hate it claims figured in the attack. Mr. Swalwell focuses more narrowly on punishing Mr. Trump and his inner circle for the alleged scheme.“He lied to his followers again and again claiming the election was stolen from them, filed a mountain of frivolous lawsuits — nearly all of which failed, tried to intimidate election officials, and finally called upon his supporters to descend on Washington D.C. to ‘stop the steal,’” Mr. Swalwell said in a statement.In the suit, Mr. Swalwell describes how he, the vice president and members of the House and Senate were put at direct risk and suffered “severe emotional distress” as armed marauders briefly overtook the Capitol in Mr. Trump’s name.“The plaintiff prepared himself for possible hand-to-hand combat as he took off his jacket and tie and searched for makeshift instruments of self-defense,” it says.During the Senate trial, Mr. Trump’s defense lawyers flatly denied that he was responsible for the assault and made broad assertions that he was protected by the First Amendment when he urged supporters gathered on Jan. 6 to “fight like hell” to “stop the steal” he said was underway at the Capitol.The nine House managers argued that free speech rights had no place in a court of impeachment, but they may prove a more durable defense in a court of law. Though the suit targets them in their personal capacities, Mr. Trump may also try to dismiss the case by arguing that the statements he made around the rally were official, legally protected acts.Lyrissa Lidsky, the dean of the University of Missouri School of Law, said that the suit relied on a novel application of civil rights law originally meant to target racialized terrorism in the Reconstruction-era South. But she predicted the case would ultimately boil down to the same fundamental questions that animated Mr. Trump’s trial in the Senate: whether his words on Jan. 6 and leading up to it constituted incitement or were protected by the First Amendment.“By filing the suit, Swalwell is trying to relitigate in the court of public opinion the case he lost in the impeachment trial,” Ms. Lidsky said. A change of venue can sometimes produce different outcomes, she added, but Mr. Swalwell faces an uphill climb.“I wouldn’t hold my breath,” she said.AdvertisementContinue reading the main story More

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      Supreme Court Case Could Limit Options to Fight Republican Voting Restrictions

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      AdvertisementContinue reading the main storySupported byContinue reading the main storySupreme Court Case Could Limit Options to Fight Republican Voting RestrictionsThe Supreme Court on Tuesday heard arguments on an Arizona case that could further undermine the ability of the Voting Rights Act to protect access to the ballot.People lined up to vote at a polling place in Phoenix in November. Arizona is one of several states where Republican legislatures are drafting legislation to restrict voting access.Credit…Adriana Zehbrauskas for The New York TimesReid J. Epstein and March 3, 2021, 1:27 p.m. ETWASHINGTON — There was not much subtlety to the Republicans’ argument to the Supreme Court on Tuesday for allowing laws that effectively limit voting access for people of color.Overturning a restrictive Arizona law, said Michael A. Carvin, the lawyer representing the Republican Party of Arizona, “puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us,” referring to the part of the Voting Rights Act that is generally used to protect voting access for minority groups.“It’s the difference between winning an election 50-49 and losing,” he said.Mr. Carvin’s explanation, in response to a softball question from Justice Amy Coney Barrett about the Republican Party’s interest in a lawsuit brought by Democrats against Arizona, struck at the heart of the latest Supreme Court case that could have a major impact on states’ ability to curtail voting rights.At issue before the court are Arizona laws forbidding third-party collection of ballots, which Republicans derisively call harvesting, and another requiring election officials to discard ballots cast at the wrong precinct. The broader question is the future of the Voting Rights Act, and whether states will be allowed to restrict voting access unimpeded.Should the Republican argument prevail at the Supreme Court, where conservative justices hold a six-to-three majority, it could give the party’s lawmakers wide latitude to enact voting restrictions to eliminate early voting on Sundays, end third-party ballot collection and restrict who can receive an absentee ballot — all voting mechanisms Democratic lawyers argued would disproportionately curtail voting access to people of color.Republicans, in the era of former President Donald J. Trump, have made limiting access to voting a key provision of their political identity. Republicans in at least 43 states are trying to roll back laws increasing access to the ballot box that even some of them had once supported.In Washington and across the country, Republicans have adopted Mr. Trump’s false claims that the 2020 election was stolen from him, say voters don’t trust the system, and argue, despite numerous studies to the contrary, that easier access to voting inevitably leads to fraud.While Republican officials have for a generation proffered specious arguments about voter fraud affecting election results, the Trump era marks the first time there has been a party-wide, nationwide effort to limit access to the ballot for people of color and young voters — a population far more inclined to vote for Democrats.“You can’t build a foundation of lies and then use that foundation to disenfranchise voters, particularly voters of color,” said Tom Perez, the former Democratic National Committee chairman who prosecuted voting rights cases as head of the Justice Department’s Civil Rights Division during the Obama administration. “We’re on really dangerous turf right now when you have Republicans fueling these laws on the basis of falsehoods and the courts are going to be a last resort.”In this case, the justices have a range of options. They could leave the existing law intact and rule narrowly that the Arizona case was wrongly decided. Arizona’s attorney general and a lawyer for the state’s Republican Party suggested on Tuesday that the court could also choose to exempt some parts of election law — such as a ballot-collection law that deals with how voting is conducted, rather than who votes — from Section 2 coverage.Or they could rule that a higher standard is needed to show that intentional discrimination or past injustices caused a violation — for example, requiring more substantial evidence of discrimination, or ruling that past discrimination no longer needs to be considered.Limiting what can be argued under the Voting Rights Act would cut off many legal avenues to challenge new voting restrictions passed by Republican lawmakers.Conservatives hold a six-to-three majority on the Supreme Court, which could lead to decisions that give Republicans wide latitude to enact voting restrictions.Credit…Alyssa Schukar for The New York TimesLast week, Iowa legislators sent to Gov. Kim Reynolds, a Republican, legislation that would cut a third of the state’s early-voting period and lop off an hour of Election Day voting. In Georgia, Republican lawmakers are aiming to sharply limit voting access on Sundays, when many Black voters follow church services with “souls to the polls” bus rides to cast ballots. And in Arizona, Republican lawmakers are backing bills to curtail the automatic mailing of absentee ballots to voters who skip elections, and trying to raise to 60 percent the threshold to pass citizen-led ballot referendums.Republicans in Pennsylvania and Wisconsin have also pushed for new voting restrictions, though their Democratic governors are certain to veto any such proposals. The key legal tool in question at the Supreme Court is Section 2 of the Voting Rights Act, which governs after-the-fact challenges to state voting laws. Limiting its application — as the court did in 2013 with the Voting Rights Act’s requirement that some states receive Justice Department clearance before changing voting laws or drawing new legislative maps — could allow states to enact far more sweeping restrictions on voting, while increasing legal hurdles to overturn the new laws.Section 2 lawsuits have proven pivotal in striking down or modifying restrictions on people’s ability to cast ballots. Among them are a 2015 case overturning Texas’ strict voter ID law and a 2016 decision nullifying a North Carolina voting law, whose constraints ranged from strict ID requirements to limiting voter registration and early voting. In the latter case, an appeals court wrote that Republicans in the state legislature had used the law to target Black voters “with almost surgical precision.”“It would make it all the harder to stop some of these really dangerous voting laws,” said Stephen Spaulding, a senior counsel for public policy at Common Cause. “It would be an accelerant for further voter suppression.”Mark Brnovich, the Arizona attorney general who argued the case before the court, said Section 2 can only apply if there is a “substantial” disparity impacting voters of color, a higher standard than Democrats believe exists under the 14th and 15th Amendments. He said that absent the higher bar, Section 2 would “improperly inject race into all voting laws, and impede a state’s ability to run their elections.”Without the Voting Rights Act, Democrats have few tools to stop Republican-controlled states from limiting voting access.House Democrats on Wednesday are expected to pass H.R. 1, a bill to standardize federal election rules by overriding many of the restrictive voting laws enacted in the states and to dramatically expand voting access. But the proposal has little chance of proceeding through the Senate unless Democrats there agree to suspend or terminate the filibuster’s 60-vote requirement to pass most legislation.Though a majority of justices seemed inclined to uphold Arizona’s laws at the end of the nearly two-hour argument on Tuesday, it was not at all clear how broadly their ruling might impact Section 2, the last remaining pillar of the 1965 law, voting-rights experts said.One big reason is that the law says that whether the section is violated rests heavily on local circumstance, such as whether a law purporting to stop fraud was preceded by actual evidence of fraud. Another is that many violations do not rest on proof of intentional bias — which can be difficult or impossible to prove — but on evidence that the law in question perpetuates old injustices.The justices appeared on Tuesday to be grappling with how direct that link between an old injustice and a new violation needs to be. For example, a voting literacy test like those of the Jim Crow era might be equally applied to all voters, but it might disproportionately keep minorities from voting because an old injustice — like a segregated school system that gave Black voters a poorer education — caused them to fail. That is a clear link.Activists from Black Voters Matter worked to direct people to polling places in Georgia in January.Credit…Audra Melton for The New York TimesBut other laws, including the ones in Arizona, may affect minorities disproportionately, yet require a finer judgment as to why. One question in the argument on Tuesday was whether the evidence of intentional bias, including an inflammatory video alleging ballot fraud by Latinos, was sufficient to support a violation.In striking down the heart of the Voting Rights Act in 2013, the justices effectively said that the federal government no longer could hold veto power over voting laws in states with a history of discrimination because times had changed, and past discrimination in those states no longer was relevant.“Nobody struck down Section 5,” said Myrna Pérez, who directs the voting rights and elections program at the Brennan Center for Justice, referring to the clause that gave the government veto power known as pre-clearance. “Nobody said it was an overextension of Congress’s power. They just said it didn’t apply.”Few expect the court to go that far in this case. But a substantial weakening of the standards could make it much harder for plaintiffs to prove that a restriction on voting rights was a violation.In her closing statement on Tuesday, Jessica Ring Amunson, the lawyer for Katie Hobbs, Arizona’s Democratic secretary of state, urged the court to seek a higher vision of democracy than the “zero-sum” game the Republicans described. The country functions best, she said, when all eligible Americans have the right and access to vote.“We should actually want to ratchet up participation so that every eligible citizen who wants to vote can do so. Candidates and parties should be trying to win over voters on the basis of their ideas, not trying to remove voters from the electorate by imposing unjustified and discriminatory burdens,” she said.Speaking of the Republicans, Ms. Amunson concluded: “Unfortunately, petitioners have made clear that that is not their vision of democracy.”AdvertisementContinue reading the main story More

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      A Supreme Court Test for What’s Left of the Voting Rights Act

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      AdvertisementContinue reading the main storySupported byContinue reading the main storyA Supreme Court Test for What’s Left of the Voting Rights ActWhile state legislatures consider new voting restrictions to address claims of election fraud, the justices will hear arguments on what kind of legal scrutiny such laws should face.The Supreme Court has never considered how a particular provision of the Voting Rights Act of 1965 applies to policies that restrict the vote.Credit…Anna Moneymaker for The New York TimesFeb. 28, 2021, 12:24 p.m. ETWASHINGTON — As Republican state lawmakers around the nation are working furiously to enact laws making it harder to vote, the Supreme Court on Tuesday will hear its most important election case in almost a decade, one that will determine what sort of judicial scrutiny those restrictions will face.The case centers on a crucial remaining provision of the Voting Rights Act, which prohibits voting practices that discriminate on the basis of race. Civil rights groups are nervous that the court, now with a six-justice conservative majority, will use the opportunity to render that provision, Section 2, toothless.The provision has taken on greater importance in election disputes since 2013, when the court effectively struck down the heart of the 1965 law, its Section 5, which required prior federal approval of changes to voting procedures in parts of the country with a history of racial and other discrimination.But Chief Justice John G. Roberts’s majority opinion in the 5-to-4 decision, Shelby County v. Holder, said Section 2 would remain in place to protect voting rights by allowing litigation after the fact.“Section 2 is permanent, applies nationwide and is not at issue in this case,” he wrote.But it is more than a little opaque, and the Supreme Court has never considered how it applies to voting restrictions.The new case, Brnovich v. Democratic National Committee, No. 19-1257, was filed by the Democratic National Committee in 2016 to challenge voting restrictions in Arizona. Lawyers for civil rights groups said they hoped the justices would not use the case to chip away at the protections offered by Section 2.“It would be just really out of step for what this country needs right now for the Supreme Court to weaken or limit Section 2,” said Myrna Pérez, a lawyer with the Brennan Center for Justice, which submitted a brief supporting the challengers.Civil rights lawyers have a particular reason to be wary of Chief Justice Roberts. When he was a young lawyer in the Reagan administration, he unsuccessfully worked to oppose the expansion of Section 2, which had initially covered only intentional discrimination, to address practices that had discriminatory results.The Arizona case concerns two kinds of voting restrictions. One requires election officials to discard ballots cast at the wrong precinct. The other makes it a crime for campaign workers, community activists and most other people to collect ballots for delivery to polling places, a practice critics call “ballot harvesting.” The law makes exceptions for family members, caregivers and election officials.“I can’t believe the court would strike down common-sense election integrity measures,” Mark Brnovich, the state’s attorney general, said in an interview. In his brief, he wrote that “a majority of states require in-precinct voting, and about 20 states limit ballot collection.”Whether the particular restrictions challenged in the case should survive is in some ways not the central issue. The Biden administration, for instance, told the justices in an unusual letter two weeks ago that the Arizona measures did not violate Section 2. But the letter disavowed the Trump administration’s interpretation of Section 2, which would limit its availability to test the lawfulness of all sorts of voting restrictions.Section 2 bars any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That happens, the provision goes on, when, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”Dissenting in the Shelby County case, Justice Ruth Bader Ginsburg said Section 2 was not nearly as valuable as Section 5.A polling site in Phoenix in 2016. The case, Brnovich v. Democratic National Committee, was filed by the Democratic National Committee that year to challenge voting restrictions in Arizona.Credit…Max Whittaker for The New York Times“Litigation occurs only after the fact, when the illegal voting scheme has already been put in place and individuals have been elected pursuant to it, thereby gaining the advantages of incumbency,” she wrote. “An illegal scheme might be in place for several election cycles before a Section 2 plaintiff can gather sufficient evidence to challenge it. And litigation places a heavy financial burden on minority voters.”While Section 5 was available, Section 2 was used mostly in redistricting cases, where the question was whether voting maps had unlawfully diluted minority voting power. Its role in testing restrictions on the denial of the right to vote itself has been subject to much less attention.But Paul M. Smith, a lawyer with the Campaign Legal Center, which submitted a brief supporting the challengers, said lower courts had worked out a sensible framework to identify restrictions that violate Section 2.“It is not enough that a rule has a racially disparate impact,” he said. “That disparity must be related to, and explained by, the history of discrimination in the jurisdiction. Our hope is that the court will recognize the importance of maintaining this workable test, which plays an essential role in reining in laws that operate to burden voting by Blacks or Latinos.”The two sets of lawyers defending the measures in Arizona did not agree on what standard the Supreme Court should adopt to sustain the challenged restrictions. Mr. Brnovich, the state attorney general, said the disparate effect on minority voters must be substantial and caused by the challenged practice rather than some other factor. Lawyers for the Arizona Republican Party took a harder line, saying that race-neutral election regulations that impose ordinary burdens on voting are not subject at all to challenges under Section 2.Last year, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that both Arizona restrictions violated Section 2 because they disproportionately disadvantaged minority voters.In 2016, Black, Latino and Native American voters were about twice as likely to cast ballots in the wrong precinct as were white voters, Judge William A. Fletcher wrote for the majority in the 7-to-4 decision. Among the reasons for this, he said, were “frequent changes in polling locations; confusing placement of polling locations; and high rates of residential mobility.”Similarly, he wrote, the ban on ballot collectors had an outsize effect on minority voters, who use ballot collection services far more than white voters because they are more likely to be poor, older, homebound or disabled; to lack reliable transportation, child care and mail service; and to need help understanding voting rules.Judge Fletcher added that “there is no evidence of any fraud in the long history of third-party ballot collection in Arizona.”In dissent, four judges wrote that the state’s restrictions were commonplace, supported by common sense and applied neutrally to all voters.Lawmakers were entitled to try to prevent potential fraud, Judge Diarmuid F. O’Scannlain wrote. “Given its interest in addressing its valid concerns of voter fraud,” he wrote, “Arizona was free to enact prophylactic measures even though no evidence of actual voter fraud was before the legislature.”The appeals court stayed its ruling, and the restrictions were in place for the election in November.Mr. Brnovich will argue before the justices on Tuesday in the case that bears his name. He said the Ninth Circuit’s approach “would jeopardize almost every voting integrity law in almost every state.”Leigh Chapman, a lawyer with the Leadership Conference on Civil and Human Rights, which filed a brief supporting the challengers, said the Supreme Court faced a crossroad.“Especially in the absence of Section 5,” she said, “Section 2 plays an essential role in advancing the federal commitment to protecting minority voters and ensuring that they have an equal opportunity to participate in the political process.”AdvertisementContinue reading the main story More

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      One Question for Manhattan D.A. Candidates: Will You Prosecute Trump?

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      AdvertisementContinue reading the main storySupported byContinue reading the main storyOne Question for Manhattan D.A. Candidates: Will You Prosecute Trump?The investigation into Donald J. Trump has been the focus of enormous attention, but candidates have mostly avoided talking about the case.Former President Donald J. Trump and his company are under investigation in Manhattan. Prosecutors are scrutinizing whether the Trump Organization manipulated property valuations to get loans and tax benefits.Credit…Doug Mills/The New York TimesNicole Hong and Feb. 23, 2021Updated 7:28 a.m. ETLast month, during a virtual debate among the eight candidates running to be Manhattan’s top prosecutor, a final yes-or-no question jolted the group: Would they commit to prosecuting crimes committed by former President Donald J. Trump and his company?The candidates ducked.“I actually don’t think any of us should answer that question,” said one contender, Eliza Orlins, as her opponents sounded their agreement.Despite the candidates’ efforts to avoid it, the question hangs over the hotly contested race to become the next district attorney in Manhattan. The prestigious law enforcement office has been scrutinizing the former president for more than two years and won a hard-fought legal battle this week at the Supreme Court to obtain Mr. Trump’s tax returns.The current district attorney, Cyrus R. Vance Jr., who has led the office since 2010, is unlikely to seek re-election, according to people with knowledge of his plans, though he has yet to formally announce the decision. He has until next month to decide, but is not actively raising money and has not participated in campaign events.If Mr. Vance brings criminal charges this year in the Trump investigation, the next district attorney will inherit a complicated case that could take years to resolve. Every major step would need the district attorney’s approval, from plea deals to witnesses to additional charges.But the most high-profile case in the Manhattan district attorney’s office is also the one that every candidate running to lead the office has been reluctant to discuss.The eight contenders know that any statements they make could fuel Mr. Trump’s attacks on the investigation as a political “witch hunt,” potentially jeopardizing the case. Many of them have said it is unethical to make promises about Mr. Trump’s fate without first seeing the evidence.Still, the question comes up repeatedly at debates and forums, a sign of the intense interest surrounding the Trump investigation in Manhattan, where President Biden won 86 percent of the vote in last year’s election.The candidates are all Democrats, and whoever wins the June 22 primary is almost certain to win the general election in November. At the moment, no Republicans are running. With no public polling available, there is no clear favorite in the race, and in such a crowded field, a candidate may win with a small plurality of the vote. Ranked-choice voting, which will be featured for the first time in the mayoral primary, will not be used in the race.Cyrus Vance Jr., who has been Manhattan district attorney for more than a decade, is not expected to run again. Credit…Craig Ruttle/Associated PressThe candidates have found themselves walking a political tightrope: vowing to hold powerful people like Mr. Trump accountable, without saying too much to prejudge his guilt.“I’ve been very active and vocal on my feelings on Trump’s abuses of the rule of law, of his terrible policies, of his indecency,” said Dan Quart, a New York State assemblyman who is a candidate in the race. “But that’s different than being a district attorney who has to judge each case on the merits.”“It’s incumbent upon me not to say things as a candidate for this office that could potentially threaten prosecution in the future,” he added.The stakes are high. Should Mr. Trump be charged and the case go to trial, a judge could find that the statements made by the new district attorney on the campaign trail tainted the jury pool and could transfer the case out of Manhattan — or even remove the prosecutor from the case, according to legal ethics experts.Mr. Trump is already laying the groundwork for that argument. In a lengthy statement he released on Monday condemning Mr. Vance’s investigation and the Supreme Court decision, he attacked prosecutorial candidates in “far-left states and jurisdictions pledging to take out a political opponent.”“That’s fascism, not justice,” the statement said. “And that is exactly what they are trying to do with respect to me.”Mr. Vance’s investigation has unfolded as a growing number of Democratic leaders have called for Mr. Trump and his family to be held accountable for actions that they believe broke the law.After the Senate acquitted the former president on a charge of incitement in his second impeachment trial this month, the public interest quickly shifted to the inquiry in Manhattan, one of two known criminal investigations facing Mr. Trump.Mr. Vance was widely criticized after he declined in 2012 to charge Ivanka Trump and Donald Trump Jr. after a separate fraud investigation and then accepted a donation from their lawyer. The investigation examined whether Trump Organization executives had misled buyers of units at a Trump condo building in Lower Manhattan. (Mr. Vance returned the donation after the public outcry.)Mr. Vance’s victory over the ex-president at the Supreme Court may temper that criticism. But many of the district attorney candidates have still attacked his decision to close the earlier Trump investigation, campaigning on the belief that his office gave too many free passes to the wealthy and powerful.In August, Ms. Orlins, a former public defender, suggested on Twitter that, if she were to become district attorney, she would open an investigation into Ivanka Trump.“You won’t get off so easy when I’m Manhattan D.A.,” she wrote, referring to the fraud investigation that Mr. Vance had shut down. The message drew cheers from her supporters but raised eyebrows among some lawyers.Erin Murphy, a professor who teaches professional responsibility in criminal practice at New York University School of Law, said the message suggested Ms. Orlins was more focused on a desired outcome than she was on due process.“It feels like a vindictive thing,” said Ms. Murphy, who supports a rival candidate, Alvin Bragg.In an interview, Ms. Orlins said that she did not regret the tweet.“I’m passionate about what I believe,” she said. She maintained that, if elected, she would still evaluate evidence against the Trump family without prejudice.Some candidates have been more circumspect in addressing the elephant in the room, responding to questions about Mr. Trump by emphasizing their experience investigating powerful people.Liz Crotty, who worked for Mr. Vance’s predecessor, Robert M. Morgenthau, said in an interview that she would be well-equipped to oversee a complicated case because as a prosecutor she had investigated the finances of Saddam Hussein, the Iraqi dictator.Diana Florence, a former Manhattan prosecutor, cited her history of taking on real estate and construction fraud to demonstrate that she would not be afraid to pursue the rich and influential.Mr. Vance’s office began its current investigation into Mr. Trump in 2018, initially focusing on the Trump Organization’s role in hush money payments made during the 2016 presidential campaign to two women who claimed to have had affairs with Mr. Trump.Since then, prosecutors have suggested in court filings that their investigation has expanded to focus on potential financial crimes, including insurance and bank-related fraud. Mr. Vance has not revealed the scope of his investigation, citing grand jury secrecy.In August 2019, Mr. Vance’s office sent a subpoena to Mr. Trump’s accounting firm seeking eight years of his tax returns. Mr. Trump repeatedly attempted to block the subpoena. On Monday, the Supreme Court put an end to his efforts, with a short, unsigned order that required Mr. Trump’s accountants to release his records.Tahanie Aboushi, a civil rights lawyer who is running, said Mr. Vance’s failure to prosecute Mr. Trump earlier reflected a central theme of her campaign. She sees the former president as the beneficiary of a system that allows powerful people to get away with misconduct for which poor people and people of color are harshly punished.“None of my policies are targeted at Trump or a direct response to Trump,” she said in an interview. “It’s the system as a whole and how it’s historically operated.”Other candidates have focused on their experience managing complex cases, in tacit acknowledgment of the obstacles ahead in a potential prosecution of a former president. Lucy Lang, a former prosecutor under Mr. Vance running in the race, has touted her familiarity with long-term cases in Manhattan courts, including her leadership of a two-year investigation into a Harlem drug gang.Daniel R. Alonso, who was Mr. Vance’s top deputy from 2010 to 2014 and is now in private practice, said that any potential case would be an “uphill battle.”“You can’t have a D.A. who doesn’t have the gravitas and the level of experience to know how to handle the case,” he said.Several of the contenders already have experience suing the Trump administration and dealing with the scrutiny that comes with it.Tali Farhadian Weinstein, a former federal prosecutor, has pointed to her role in a lawsuit that successfully stopped federal immigration authorities last year from arresting people at state courthouses. She handled the case as the former general counsel for the Brooklyn district attorney.Mr. Bragg, who served as a chief deputy at the New York attorney general’s office when it sued Mr. Trump’s charity in 2018, said it was critical in politically charged cases to ignore the public pressure.“When you do the right thing for the right reason in the right way, justice is its own reward,” he said. “You can’t be motivated by public passions. You have to be rooted in the facts.”AdvertisementContinue reading the main story More