05/31/2024

U.S. Supreme Court Justice Samuel Alito fends off the flag controversy amid calls to recuse himself from the Trump immunity case. National Democrats work to place President Joe Biden on Ohio’s ballot this November, while the president is still being sued by Pennsylvania Republicans seeking to revive a debunked election law theory. In New York, a federal district court strikes down the state’s controversial line-warming ban.

U.S. Supreme Court Justice Alito doubles down on flag controversy

It’s been an eventful few weeks for U.S. Supreme Court Justice Samuel Alito. First, a bombshell New York Times report comes out on May 16 about his household reportedly flying a “Stop the Steal” flag days after the Jan. 6, 2021, attack on the U.S. Capitol.

The paper then dropped another story about a second incident in which a right-wing flag was flown at Alito’s New Jersey vacation home. The incidents sparked calls for Alito to recuse himself from any Jan. 6 or 2020 election-related cases. All this occurred as the Court released Alito’s majority opinion in a consequential racial gerrymander case, setting a new precedent that alarmed voting rights advocates, legal experts and even the White House.

But Alito seems undeterred.

In a letter Wednesday to Sens. Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.), Alito said he will not recuse himself from Jan. 6 cases due to the flag controversy. The lawmakers sent a letter last week to Chief Justice John Roberts requesting that he ensures Alito’s recusal from any cases related to the 2020 presidential election and Jan. 6, 2021 attack on the U.S. Capitol “including the question of former President Trump’s immunity” that is currently before the Court.

Alito’s defense throughout his ordeal is that his wife — not the justice — flew the flags.

“As I have stated publicly,” Alito said in the letter, “I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upside- down flag until it was called to my attention. As soon as I saw it, I asked my wife to take it down, but for several days, she refused.”

Regarding the second incident, Alito says he recalls that his wife “did fly that flag for some period of time, but I do not remember how long it flew. And what is most relevant here, I had no involvement in the decision to fly that flag.”

“My wife is fond of flying flags. I am not.”

Alito’s letter laid out the terms under which a justice would need to recuse himself. Neither incident meets those conditions, he said.

The Times’ reports come as the nation awaits a ruling from the Court in another highly consequential case concerning former President Donald Trump’s claim of absolute presidential immunity from criminal prosecution.

Federal court strikes down New York’s line-warming prohibition

A New York law that prohibits nonpartisan groups from providing food and drink to voters waiting in line to cast their ballots was struck down by a federal district court this week. The decision is a victory for civil rights groups that claim the New York law and others like it can make voting more difficult for individuals, especially in harsh weather conditions like extreme heat.  

New York’s law states that foods and drinks can only be given to voters in line if they “have a retail value under $1” and are provided by people or entities who identify themselves, Democracy Docket’s Courtney Cohn reports.

In 2021, the Brooklyn chapter of the NAACP sued the New York City Board of Elections, alleging that the line-warming ban is “overly broad” and “impermissibly vague” in violation of the First and 14th Amendments. The federal district court on Wednesday concluded that the ban is unconstitutional.

While voters have long complained to the election board about long wait times, the issue came to the fore in 2020 when “the New York Attorney General reported receiving ‘a large volume of complaints from voters in counties across the State who have waited in long lines to cast their ballots, in some cases for as many as five hours,’” the judge explained in her ruling.

During early voting in 2020, attorneys for the board noted that members of the Brooklyn NAACP handed out hand sanitizer, face masks and face shields to voters waiting in line and did not face prosecution or the threat of prosecution for those acts.

But the Brooklyn NAACP demonstrated that it faces a credible threat from the potential enforcement of the ban — even if it was never actually prosecuted.

And, while Failla’s ruling concerned New York’s law, other states have similar legislation in place. Perhaps the most well-known version of the law is being challenged in Georgia, where Republican Gov. Brian Kemp in 2021 signed legislation including line-warming provisions that prohibit anyone from giving out food or drinks to voters within a buffer zone 150 feet of a polling place or within a supplemental zone of 25 feet of any voter standing in line. A federal judge in 2023 temporarily blocked the law’s provisions that prohibit line warming within the supplemental zone.

Biden almost misses a critical ballot deadline in Ohio — and faces a legal challenge in Pennsylvania

While the ballot placement of an incumbent presidential candidate may seem like a given, a clash between Democratic and Republican state legislators in Ohio shows that nothing is certain when partisanship is involved.

The Democratic National Committee (DNC) announced this week that it’s nominating Biden as its candidate earlier than planned in order to meet Ohio’s deadline for parties to certify their presidential nominee to appear on Ohio’s ballot. At issue is an Ohio law requiring that a political party must certify its candidate on or before the 90th day before the day of the general election.

In this case, the deadline is Aug. 7. But the Democratic National Convention, during which the party will officially certify a candidate, isn’t set to happen until Aug. 19 in Chicago.

The issue came to light for Democratic leaders on April 5, when the secretary of state’s office sent a letter to Ohio Democratic Party Chairwoman Liz Walter, notifying her of the conflict, according to the Columbus Dispatch and Ohio Capital Journal.

One possible solution is for state legislators to amend the law. But the Legislature is divided on how exactly to fix the issue. Senate Republicans introduced a bill with so-called “poison pills” and was condemned by Democrats.

Amid all of the political wrangling, the DNC found a solution: it will virtually meet before the Aug. 7 deadline to officially nominate Biden as the party’s presidential nominee.

Biden might have avoided conflict in Ohio, but Pennsylvania Republicans continue to take aim at the president over a pro-voting executive order he issued in 2021. In April, the GOP legislators filed a petition asking the U.S. Supreme Court to reopen their case challenging the order, basing their lawsuit off the independent state legislature theory — a fringe legal theory already rejected by the Court last year.

This week, 11 members of the U.S. House submitted a brief in support of the plaintiffs, arguing that the power for regulating federal elections lies solely with state legislatures with limited congressional oversight. Nine Republican secretaries of state also filed a brief with the Court.

The case is Republicans’ latest attempt to advance the discredited theory that would essentially give state legislatures unchecked power to set election policy and congressional maps, meaning there could be no lawful intervention from other state powers — like the courts or executive orders — because the Elections Clause of the Constitution vests that authority solely into state legislatures, according to the theory.

FROM OUR DESK: How United Sovereign Americans is Radicalizing an Anti-Voting Movement

Democracy Docket staff writer Matt Cohen’s latest foray into right-wing election movements took him to a series of Microsoft Teams meetings held by Marly Hornik, the co-founder of United Sovereign Americans (USA), and attended by dozens of viewers. Cohen describes “USA” as a “nascent far-right legal group that’s organizing to disrupt the 2024 election with a series of lawsuits aimed at upending the voting process in a handful of states.” Read more here.

What We’re Doing

The hallmark of American elections has traditionally been the peaceful transfer of power. But since 2020 and the Jan. 6, 2021, insurrection, Republicans and right-wingers have put that crucial transfer at stake. Marc Elias explains why we can expect more of the same in 2024 and how we must prepare to fight back. Watch on YouTube here.