A Year Later – Sham Election Reviews Continue to Undermine Democracy

This blog is part of ACS’s Blog Symposium remembering and analyzing the January 6, 2021 attack on the Capitol.

Loyalists of former president Donald Trump invaded the U.S. Capitol one year ago, carrying weapons, waving the Confederate flag, and insisting that the 2020 election was fraudulent. There was no credible support for the claims of “Stop the Steal” advocates. Nevertheless, Pro-Trump politicians have spent the past year attempting to fabricate that support. They have dented public confidence in the voting process and made it harder for voters, in particular voters of color, to vote. Less appreciated, but no less damaging, is the way they have coopted and undermined a critical tool of our democracy: the post-election audit.

Many states have rigorous protocols for post-election audits, including randomized selection of the electronic tallies to be checked against paper records, a commitment to objectivity throughout the process, and conducting the audit in full public view. When these standards are upheld, post-election audits help check that the outcomes of elections are accurate, and they maintain or restore public confidence in our democracy.

The sham reviews following the 2020 election were, essentially, the opposite of this. They were initiated for partisan reasons, as part of an attempt to overturn the will of the voters by leveraging a reluctance to accept the votes cast by diverse populations who live in major metropolitan areas. They put the conclusion before the process, and established protocols were not followed.

The Arizona sham-review, which targeted only Maricopa County, including the state’s largest city, Phoenix, exemplifies these problems. On Nov. 30, 2020, while Governor Doug Ducey (R) was in the process of certifying Joe Biden as the winner of Arizona’s presidential electors, his cell phone rang. It was Trump. Gov. Ducey wisely silenced the call, but Trump wasn’t finished with Ducey. A few hours later, he publicly accused the governor of “betray[ing] the people of Arizona,” and ignoring “so many horrible things concerning voter fraud.”

A few days later, Trump began his pressure campaign for a partisan review. Senate President Karen Fann, who over the past two weeks had been in close contact with Rudy Giuliani and others representing Trump’s campaign, called for a so-called “forensic audit” of Maricopa County, Arizona’s election results. Trump endorsed the sham audit, claiming it “will easily give us the state.” A private campaign was also underway, with Giuliani calling the four Republican supervisors on the Maricopa County Board, including a call to Supervisor Clint Hickman on Dec. 4, expressing happiness that “there’s gonna be a forensic audit” and that Trump had requested he call to talk to Hickman about it.

There was no legitimate purpose for this review. The legal challenges had failed, and the election results had already been certified. On Dec. 14, the Arizona Senate Judiciary Committee held a hearing in which Maricopa County election officials, the Arizona Attorney General’s election integrity unit, and a county attorney all testified that there was no evidence of fraud or manipulation in the November 2020 election. Nevertheless, the Republican chair of the committee, with the approval of Fann, issued two subpoenas demanding Maricopa County election materials in pursuit of a “forensic audit.”

Demands for these reviews were made in other locations as well, such as one requested in a lawsuit by a resident of Antrim County, MI. Pennsylvania state Senator Doug Mastriano, who had urged the Acting U.S. Deputy Attorney General to address claims of fraud, successfully demanded a review in Fulton County, PA, at the end of December. And pressure from the White House continued in Arizona. On New Year’s Eve 2020, Supervisor Hickman in Arizona was asked to call President Trump. (Hickman declined.)

On Jan. 2, 2021, federal lawmakers echoed these requests. Eleven pro-Trump U.S. senators issued a joint statement announcing their intention to vote on January 6 to reject electors from disputed states. The alleged disputes were not based in fact — there was and never has been any factual basis for believing there might be errors that plausibly changed outcomes in the presidential contest. Instead, the Senators were responding to concerns and distrust that Trump and his associates had conjured through political pressure.

They demanded an “emergency 10-day audit,” after which “individual states . . . could convene a special legislative session to certify a change in their vote, if needed” — a scenario remarkably similar to one described in Trump lawyer John Eastman’s six-page memo outlining mechanisms for overturning the election, which was reportedly shared in a January 4, 2021 meeting in the Oval Office. In the memo Eastman describes a scenario where “comprehensive audit[s]/investigation[s]” would be performed by individual state legislatures, which could certify Trump electors if the partisan review showed “to the satisfaction of the legislature . . . sufficient fraud and illegality.” Put simply, these audits aimed to provide cover to state and federal politicians who wished to nullify President Biden’s victory.

Trump’s campaign failed. Vice President Mike Pence was not convinced to go along with any of these delay tactics, the violent attack on the electoral vote counting process was repelled, and Congress certified President Biden’s win in the early morning hours of Jan. 7, 2021. But in the year since, the movement for sham partisan reviews has taken on a life of its own.

The movement’s most prominent effort to date remains the partisan review of Maricopa County’s 2020 election, conducted by the contractor Cyber Ninjas. Cyber Ninjas finally issued a report in September 2021, replacing the outright lies that have triggered defamation lawsuits against other Big Lie proponents with copious and misleading innuendo.

The most attention-grabbing findings fit the pattern that purveyors of voter fraud myths have long followed: willful ignorance of basic probability, common election laws, and common election administration procedures in order to raise baseless suspicions about fellow voters and the dedicated public servants who count their votes and certify the results. The report claims it is suspicious that some voters share the same full name and birth year — it isn’t. It uses a commercial move tracking service to raise suspicions about voters who, according to the commercial service, moved before the election. But even leaving aside the accuracy of the commercial service’s data, temporary moves do not alter eligibility to vote in Arizona. Unsurprisingly, the Cyber Ninjas audit was promptly used in the continuing disinformation campaign against our elections, with Trump citing its “critical” — and false — "finding” that 23,344 ballots were somehow impacted by the voter purportedly moving.

The push to conduct partisan reviews continues to spread. State legislators in Pennsylvania have proposed conducting their own partisan review that would use the Arizona Senate’s actions as a model. Assembly members in Wisconsin have launched a partisan effort there, targeting officials in its largest cities: Milwaukee, Madison, Racine, Kenosha, and Green Bay. Even after a lawsuit seeking to gain access to ballots in Fulton County, GA, for a partisan review was dismissed, Gubernatorial candidate David Perdue has sued Fulton County officials seeking a review. Now, even in states that President Trump won, such as Texas, Florida and Idaho, local party activists have demanded these reviews over the objections of local election supervisors of both major parties.

One year after a failed attempt to reject the will of the voters, states, local governments, and Congress must act to secure elections from this lasting effort to sabotage them. Election officials need resources to improve their personal and offices’ physical security, to fight back against election disinformation, and to secure election systems against infiltration by those who refuse to accept voters’ choices. They should be protected against retaliation for ensuring eligible voters can exercise their rights. And through the Freedom to Vote Act, Congress can protect election workers during the vote tabulation process, as well as require (and fund) legitimate post-election tabulation audits. By providing voters a remedy if their right to vote (and have that vote counted) in a federal election is infringed, the Act would also protect against the danger of future attempts at sabotage.

This is a difficult moment for American democracy. A disturbing proportion of the electorate falsely believes the last presidential election was fraudulent, elections officials are threatened with violence, legislators are seeking the right to overturn results, and state legislatures are retaliating against those who certified the results. These partisan election reviews add to the turmoil, feeding into disinformation around the election, and undermining legitimate post-election audits — which show people in the clearest and most transparent way possible that their votes are being accurately counted.

Examining our Past to Secure our Future: What Reconstruction can teach us about January 6th and Constitutional Accountability

This blog is part of ACS’s Blog Symposium remembering and analyzing the January 6, 2021 attack on the Capitol.

The nation is deeply divided. It grapples anew with stark racial inequality and injustice. A violent insurrection threatening political stability was recently staved off, and elected leaders stand accused of betraying their oaths to uphold the Constitution. There are calls from some for investigation and accountability, and calls from others to avoid looking too closely at the past for fear that it will hamper unification efforts. And the fife and fortepiano rank as popular musical instruments.

Until that last detail, one can be forgiven for thinking the moment described is 2021, not 1868. The similarities are striking. And that should be reason enough for us to mine the history of that moment and learn its lessons.

In 1868, in the wake of the Civil War, during a period of our nation’s history so transformative that it is often referred to as the Second Founding, the Fourteenth Amendment to the United States Constitution was adopted. Many people know about the Fourteenth Amendment’s first section, which contains its promises of equal protection, due process, and birthright citizenship. Less familiar are the accountability provisions of the Amendment’s third section, which prevent current or former government officials from ever again holding federal or state office if they “engaged in insurrection or rebellion” against the nation or gave “aid or comfort to the enemies thereof.”

At the time of the Amendment’s adoption, there were concerns that former Confederate officials, after betraying their oaths to uphold the Constitution, would simply take office once again, serving as destabilizing forces in a nation attempting to knit itself back together. The drafters of Section 3 of the Fourteenth Amendment took a broad approach, applying the disqualification not only to Confederate officials, but to anyone who had “taken an oath . . . to support the Constitution” and then subsequently engaged in insurrection or rebellion. This applied to “a member of Congress,” “an officer of the United States,” “a member of any State legislature,” and “an executive or judicial officer of any State.” The drafters also chose to make such disqualification permanent, unless the disqualification was lifted by a two-thirds vote in both the House and Senate. The drafters recognized that accountability doesn’t threaten unity, but rather is essential for achieving it.

Whatever questions exist about the outer limits of what constitutes “engag[ing] in insurrection or rebellion,” or giving “aid or comfort” to those who did, some of former President Donald Trump’s documented actions arguably fit the bill. On January 6, 2021, Trump urged an angry group of supporters to storm the Capitol, interrupt the counting of electoral ballots, and disrupt the orderly transfer of power. These actions followed weeks of Trump undermining confidence in the elections, spreading falsehoods that were disproven in a series of failed litigation challenges, and pressuring state officials to “find” votes in an attempt to change the election results. And Trump might have been joined by other officials who violated their oaths.

The bipartisan Select Committee to Investigate the January 6th Attack on the United States Capitol is working steadily to help Congress and the American public understand the tragic events of January 6, 2021, the events that led up to it, and what might be done to help avoid similar threats to our democracy in the future. The Select Committee has interviewed over 300 people, has received and is in the process of reviewing over 35,000 documents, and has fielded more than 250 tips through their tip line. As the bipartisan staff members meticulously review all this information, they should follow the information wherever it leads. If the information indicates that officials—including former President Trump—“engaged in insurrection or rebellion against the nation” or “gave aid or comfort to the enemies thereof,” the Select Committee should share such information with the public and make clear the implications for the ability of those individuals to hold office in the future. And Congress should consider taking any additional steps necessary. Section 5 of the Fourteenth Amendment explicitly vests Congress with “the power to enforce, by appropriate legislation,” the other sections of the Amendment, clearing the way for a range of congressional actions.

The text of Section 3 of the Fourteenth Amendment sets out no specific process or mechanism for removing offending officials from office and for keeping them off ballots when they seek office, whether on the state or federal level. However, scholars have cautioned that Congress might be best served by taking some affirmative action, and that such actions might differ based on whether the offending individuals are currently serving in office. For instance, offending members of Congress might be expelled by the two-thirds vote required by the Expulsion Clause, but Congress could also pass new Section 3 enforcement and implementation legislation establishing specific procedures for removing offending officials from office and governing determinations of future ineligibility for other offending individuals. Or Congress might, through a joint resolution, declare an official (such as a president) ineligible for future office pursuant to Section 3, understanding that such an official might challenge this in the courts.

The purpose of this short piece is not to prescribe specific congressional action, but rather to make the point that if the information being collected by the Select Committee warrants it, Congress has the opportunity to hold individuals like Trump accountable and prevent them from seeking office again. Congress should take that opportunity, confident that they are backed by the Fourteenth Amendment’s text and enactment history.

Of course, a year after the tragic events of January 6, 2021, there are those who once again caution that it is best to move on by not looking back. And here, history proves instructive once again. In 1872, a mere four years after adoption of the Fourteenth Amendment, Congress by the requisite two-thirds margin voted to remove the disqualification from all the state officers covered by Section 3, and then a few years later, Congress removed the disqualification for the few remaining individuals affected. Perhaps this was motivated by a belief that it was time to turn the page. But for whom was the page turned? While no one can yoke the failure to fulfill the promise of the Reconstruction era to one particular vote or action, it is unquestionably true that Congress’s vote held symbolic importance, as well as legal importance. Apparently, taking up arms against one’s country wasn’t considered that bad; after a mere four years in the political version of time-out corner, leaders who violated their oaths could once again run for office, essentially vying for the opportunity to take new oaths. By normalizing the continued political participation and leadership of former Confederate leaders, Congress further normalized many of the deeply oppressive ideas that led to the Civil War in the first place. It’s hard to separate Congress’s vote in 1872 from what came next—the brutal suppression of the rights of individuals who had only recently been freed from slavery, and the utter failure to fulfill the equality and liberty promises embedded in the Fourteenth Amendment.

Bryan Stevenson has said, “The North won the Civil War, but the South won the narrative war.” How Congress acts upon the information that is being carefully collected by the bipartisan January 6th Select Committee will be important not only for constitutional accountability, but also for how the American public understands the seriousness of what went on that day and whether such anti-democratic impulses gain further currency. We learn almost daily about how close we came to the election results being overturned, and how little separated a violent failed insurrection from becoming a violent successful one. And there remain serious concerns about the potential for another insurrection. If the Select Committee finds out that individuals violated their oaths to thwart the will of the people, it will be in part up to Congress to ensure that these officials never again govern in the people’s name. We ignore Reconstruction history at our peril.

Liability for Amplification of Disinformation: A Law of Unintended Consequences?

This blog is part of ACS’s Blog Symposium remembering and analyzing the January 6, 2021 attack on the Capitol.

The New Year 2022 had barely begun when Twitter announced that it had permanently suspended the personal account of Rep. Marjorie Taylor Greene (R-Ga.), claiming that she had violated its policies against spreading falsehoods about Covid-19.

This wasn’t the congresswoman’s first brush with Twitter’s misinformation policy. Her account was suspended several times for shorter periods during the summer of 2020, also for false claims about the coronavirus and the vaccines that target it.

But a tweet on January 1, 2022 that alleged “extremely high amounts of Covid vaccine deaths” was apparently the last straw for the social media company. Its spokesperson, Katie Rosborough, said that Greene’s repeated violations added up to five “strikes,” which under Twitter’s system merits permanent expulsion from the platform.

Greene responded – using the messaging app Telegram – that Twitter “is an enemy to America and can’t handle the truth.” Predictably, her suspension added fodder to the claim that Greene was the latest political conservative to be “censored” by social media, following in the footsteps of former President Donald Trump, who was banned from several social media sites, including Twitter, in the wake of the Jan. 6, 2021 attacks on the U.S. Capitol. Twitter had specifically cited two of Trump’s tweets as violating its policy against glorification of violence: one stating that Trump was not going to attend President-elect Biden’s inauguration, and the other praising the “75,000,000 great America Patriots who voted for” him. Both statements, Twitter said, conveyed the message that the election was illegitimate, and that Trump would support and protect those who sought to overturn the election by force.

In response to the bans on Trump and other conservatives, two states – Florida and Texas – enacted statutes in 2021 prohibiting social media companies from banning controversial posts, and discouraging them from engaging in content moderation, particularly if the moderation was based on the viewpoint expressed. The Texas law would require companies to publish detailed moderation reports explaining how decisions were made.

Federal judges in both states enjoined the statutes, ruling that the First Amendment and Section 230 of the Communications Decency Act protected the platforms’ exercise of editorial discretion, with Judge Robert Pitman finding that the moderation reporting requirements in the Texas law would be “inordinately burdensome” and discourage any moderation, even of harmful content.

Both rulings are the latest in a string of cases recognizing that the constitutional protections enjoyed by the mainstream or traditional media extend to social media platforms as well. Under ordinary circumstances, First Amendment scholars would applaud these decisions.

But some have not. Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, together with Institute attorney Scott Wilkens, wrote in the New York Times that the companies’ arguments that they should be immune from the consequences of moderation decisions are “deeply misconceived” and even dangerous. They contend that taken to their logical conclusion, these arguments would foreclose even “carefully drawn laws” that would compel greater transparency in the companies’ use of algorithms or other standards to decide which accounts are suspended, undermining what they call “the integrity of the digital public sphere.”

In a report issued in November by Aspen Digital, a project of the non-partisan Aspen Institute, its Commission on Information Disorder (whose members include Jaffer as well as journalist Katie Couric and Prince Harry, among others) also recommended that social media platforms be required to disclose information about their content moderation policies and practices, and to share their data with “authorized researchers.” And Alan Rozenshtein, an associate professor of law at the University of Minnesota, observed on Lawfare that “government restrictions on content moderation may well be necessary to ensure the health of the digital commons.”

The fact that scholars and think tanks who have long championed the First Amendment rights of freedom of the press and of speech are now advocating government regulation of social media as the way to promote democratic ideals is disconcerting, to say the least. But it is emblematic of a broader concern about fundamental threats to democracy itself. The spread or amplification of misinformation or disinformation through social media is regarded as particularly problematic. After the Capitol attacks in January 2021 and revelations in October by Facebook whistleblower Frances Haugen, lawmakers on both sides of the aisle took the opportunity to pounce on Big Tech by threatening to revamp Section 230 to create liability for amplifying misinformation or hate speech by using algorithms.

The term “amplification” is an interesting one in this context. Different bills define it in different ways. Some are aimed at the general promotion, or high ranking, of specific kinds of content, such as health misinformation or terrorist tracts, based in part on what will generate advertising revenues or “clicks.” Others focus on the use of targeted algorithms that rank material based on personal data, such as peppering a particular user with numerous posts that reinforce erroneous beliefs about the legitimacy of the 2020 election.

But the goal of all these bills is essentially the same: to curb the virtually unlimited immunity social media companies enjoy when they act as conduits for user-generated content and exercise their own right to either amplify or remove it. The idea is that private companies cannot be trusted as the gatekeepers of information. The supporters of these initiatives argue that the tech companies have had ample opportunity to engage in responsible self-regulation, and have failed to do so, to the detriment of society and, ultimately, to the truth.

In the face of the very real possibility of a repeat of the January 6 insurrection, it is tempting to clamp down on the social media that are viewed as co-conspirators in the spread of disinformation. But as the scholarship of Professor Robert Pape at the University of Chicago has documented, of the 21 million people in the United States who believe that President Biden was not legitimately elected and that the use of force to restore Donald Trump to office is justified, only ten percent of them get their news from social media like Gab or Telegram. Instead, 42 percent rely on Fox News or other “mainstream conservative media,” and the next largest proportion consume media such as CNN or NPR. This suggests that a significant component of amplification of disinformation occurs when the conventional media repeat it. Should those news media be subject to government regulation as well?

Some argue that they should be, and in some countries, they already are. Anti-“fake news” laws have been used in countries like Malaysia, Venezuela, and Kenya have been used to suppress opposition media. In late December, Stand News, a pro-democracy online news outlet based in Hong Kong, shut down after its facilities were raided by police and members of its staff were arrested on charges of “inciting hatred” against the government.

But so far, in mature democracies, most of the regulatory efforts are targeted at social media, who are feared by many in government because of their ubiquity and lack of accountability. In the United Kingdom, for example, a bill is pending that would create potential criminal liability for social media companies that fail to protect users by removing “harmful algorithms.” The Conservative MP who chairs the parliamentary committee on the draft online safety bill refers to the social media landscape as “the land of the lawless.” In his view, it is past time to impose responsibility upon them.

There is no question that the spread of disinformation threatens the core values of democracy. It is tempting to threaten those who disseminate it with legal consequences. But however well-intentioned these legislative initiatives may be, there are dangers inherent in the government deciding what constitutes harmful content.

Certain narrowly-defined categories of speech do not receive First Amendment protection: true threats and incitement to violence are two of them. However, falsehoods – unless they also harm a reputation – are protected.

Nevertheless, there are creative ways to tackle disinformation under existing law. One approach is through libel suits, such as those brought by election equipment operators and election workers against media who falsely claimed manipulation of the 2020 election, thereby defaming them.

These lawsuits may, it is hoped, get to the truth. But in any event, they will proceed with the robust protection of New York Times v. Sullivan and its progeny intact, preserving the right to speak about controversial subjects in good faith without fear of retribution.

The core teaching of Sullivan is essential: we should not leave it to government to be the arbiter of truth. In civil society, we want to presume that government is acting in good faith. But history teaches us that legislation intended to preserve and protect truth could become an instrument to suppress it.

Rather than provide bad actors with such weapons, the best remedy for false speech is more speech. Or as Justice Anthony Kennedy wrote, “The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.”

Enhance Fact-Checking to Protect Democracy

American democracy is in trouble. According to Freedom House, “the United States’ aggregate Freedom in the World score . . . declined” from 94 to 83 between 2010 and 2020. The Economist downgraded the United States from a “full democracy” to a “flawed democracy” in 2016. Agreement on shared facts is an essential foundation for effective democratic governance. Like termites eating away at the foundations of a house, the electronic amplification of lies and misinformation is eroding the foundations of American democracy. Congress should act now to address the problem before it is too late.

I propose a National Endowment for Fact-Checking (NEFC), modeled on the National Endowment for Democracy (NED). The NED is an independent, non-governmental foundation established in 1983 to strengthen “democratic institutions around the world.” By analogy, the NEFC’s mission would be to strengthen democracy at home. Like the NED, the NEFC would distribute federal funds to grantees—in this case, independent, non-partisan organizations that monitor electronic communications and perform key fact-checking functions.

At least initially, only two types of communications would be subject to fact-checking: a narrow category of election-related claims and a narrow category of claims related to public health. Experts have identified these two categories as the types of misinformation that currently pose the greatest threat to our democracy. In contrast to the NED, the NEFC should not be dependent upon annual congressional appropriations. Instead, the Federal Communications Commission (FCC) could fund the NEFC directly, and fund the NEFC’s grantees indirectly, by charging annual fees to private media companies. Indeed, that is how the FCC funds its own operations. Under this approach, taxpayers would not foot the bill for the NEFC.

My proposed statute, the National Endowment for Fact-Checking Act, would regulate private companies that provide electronic amplification services for individuals. The statute calls these companies “electronic megaphone companies” (EMCs). Empirical studies show that the interaction among different types of electronic communications technologies facilitates the rapid dissemination of misinformation to large audiences. Therefore, the statutory definition of EMCs includes companies that provide electronic amplification services for messages transmitted via radio, television, social media, blogs, and podcasts.

The statute would also regulate “persons with large electronic megaphones,” or PLEMs. Empirical research demonstrates that a small number of individuals, those with large electronic reach, are responsible for the vast majority of harm caused by electronic amplification of misinformation related to elections and public health. Therefore, to fall within the statutory definition of PLEMs, an individual’s electronic reach would have to meet a numeric threshold.

Because private companies cannot be trusted to decide what is true and false, and the First Amendment bars Congress from delegating to any government agency the primary responsibility for making such case-by-case decisions, the statute delegates that responsibility to independent, non-governmental fact-checking organizations. These would be the NEFC grantees.

Under the proposed statute, independent fact-checking organizations would issue warnings to PLEMs who disseminate false or misleading claims related to elections or public health. PLEMs who heed those warnings and refrain from spreading false/misleading claims would retain unrestricted freedom of reach. If individual PLEMs ignore warnings from fact-checkers, NEFC would encourage (but not require) EMCs to execute de-amplification orders. Such orders would, at the company’s discretion, either temporarily suspend that PLEM from its services, or utilize technical measures to reduce electronic amplification of that PLEM’s speech.

Under the proposed statute, NEFC’s primary responsibilities are to:

  • Provide funding to independent fact-checking organizations, and provide oversight to ensure that those organizations comply with statutory requirements;
  • Encourage, but not require, EMCs to de-amplify PLEMs who repeatedly disseminate false or misleading claims after receiving warnings; and
  • Provide quarterly reports to Congress, the FCC, and the public at large. NEFC’s reports would specifically identify both the PLEMs who continue to disseminate false and misleading claims after receiving warnings, and the EMCs that continue to amplify those PLEMs after receiving recommendations to de-amplify them.

The proposed statute creates two types of binding obligations for EMCs. They must prepare quarterly reports to identify all persons who use their electronic amplification services who qualify as PLEMs under the statute. They must also pay fees assessed by the FCC to fund implementation of the statute. The statute authorizes the FCC to impose penalties on EMCs who fail to pay the statutory fees or to file the mandatory reports. The statute does not grant the FCC authority to impose penalties on EMCs that continue to amplify PLEMs after receiving recommendations to de-amplify them (although the FCC may have such authority under existing law).

In some cases, a single warning from a fact-checking organization will suffice to prevent the repetition of false or misleading claims. Some PLEMs who do not place a high value on truthfulness would be deterred from spreading misinformation due to fear that private companies might issue de-amplification orders that would impair their ability to reach large audiences. Companies that place a high value on truthfulness would probably cooperate voluntarily with the NEFC by executing de-amplification orders when asked to do so. For other companies, the fear that the NEFC’s periodic reports to Congress would cause reputational harm—which could adversely affect their profitability—might induce them to de-amplify PLEMs, even if they would not otherwise be inclined to do so.

The NEFC’s quarterly reports could also provide a factual basis for subsequent action by Congress and/or the FCC—including, possibly, government sanctions—if the record demonstrates that the proposed system of voluntary cooperation does not provide a sufficiently strong remedy to protect our democracy from the harm caused by electronic amplification of misinformation. However, both First Amendment doctrine and First Amendment values support an incremental approach, beginning with a system of voluntary cooperation to see how well that works before resorting to legislation that imposes government sanctions on bad actors.

The proposed statute will not eliminate misinformation. That goal is unrealistic. However, the overall statutory scheme—including warnings to PLEMs who disseminate false/misleading claims, recommendations to EMCs to de-amplify PLEMs who ignore such warnings, and regular reports to Congress and the FCC to “name and shame” EMCs who refuse to follow such recommendations—will reduce the electronic amplification of misinformation related to elections and public health.

For more information about the NEFC, including the text of the proposed statute, see here.

David L. Sloss is the John A. & Elizabeth H. Sutro Professor of Law at Santa Clara University. He recently wrote a book about information warfare, which will be published in April by Stanford University Press.

Arizona Asks Supreme Court to Leave Wrongful Convictions and Death Sentences Virtually Unchallengeable

In the simplest of terms, Shinn v. Ramirez and Jones presents the Court with the question of whether a state can properly put a person to death without allowing that person a fair trial. Mr. Ramirez and Mr. Jones were represented by incompetent counsel throughout their state court proceedings. Barry Jones’s lawyer failed to investigate Mr. Jones’s credible claim of actual innocence, and David Ramirez’s lawyer failed to present compelling evidence of Mr. Ramirez’s intellectual disability. Had Arizona appointed competent counsel to represent Mr. Jones and Mr. Ramirez, neither one would be facing execution. That should ring alarm bells for all of us. Fairness, due process, and the credibility of our criminal legal system are all at stake when the Supreme Court hears oral argument on December 8, 2021.

Although exonerations due to DNA testing and other forensic revelations garner significant attention, the more mundane reality is that wrongful convictions often result from incompetent lawyering. Despite this, incarcerated people seeking to correct such injustice face a heavy burden. They must show that their trial lawyer made an inexcusable mistake, and that without the error, there is a reasonable probability the case would have turned out differently. In most states, the defendant must make that showing during state post-conviction, and if the state courts reject the claim, the defendant can raise it in a federal petition for writ of habeas corpus.

However, if Arizona has its way, the Supreme Court may soon make it virtually impossible for many such defendants to prove they were wrongfully convicted.

On December 8, the Court will hear argument in Shinn v. Ramirez and Jones, a consolidated case that the State of Arizona brought. Arizona is asking the Court to overturn unanimous Ninth Circuit decisions granting relief in separate cases to two death-sentenced men based on compelling evidence of innocence (Barry Jones) and intellectual disability (David Ramirez). Because Arizona appointed incompetent counsel to Mr. Jones and Mr. Ramirez at both the trial and post-conviction stages, they were unable to raise that evidence in state court. Only in federal habeas, when Mr. Jones and Mr. Ramirez received competent counsel for the first time, were the defendants able to present potentially life-saving evidence for lower federal court consideration.

Arizona is now urging the Court to adopt an extreme reading of a federal statute—a reading that no court of appeals has adopted—to bar federal courts from considering that evidence.

The specific question the Court will consider in Shinn is whether a federal court reviewing a habeas petition may consider new evidence in support of a claim that the defendant’s trial counsel was constitutionally ineffective, where the defendant never properly raised that claim in state court due to the ineffectiveness of state post-conviction counsel. This is the very window of review that the Court opened less than ten years ago in Martinez v. Ryan, 566 U.S. 1 (2012), decided by a 7-2 majority including both Chief Justice Roberts and Justice Alito.

There, the Court recognized an exception to the general rule requiring incarcerated people to properly raise claims in state court before presenting them in a federal habeas petition. The decision in Martinez allowed federal courts to address the merits of those claims in appreciation of the fact that the rule would otherwise prevent defendants from remedying constitutional violations when, through no fault of their own, the state appointed them incompetent counsel. Thus, after Martinez, federal courts could review new evidence of trial counsel ineffectiveness even though no prior state court reviewed the claim due to the ineffectiveness of the defendant’s appointed post-conviction counsel.

In Shinn, Arizona is asking the Court to shut that window. It’s troubling that the Court took this case in the first place. Martinez is less than a decade old and there is no circuit split on the issue. The decision in Martinez can even be read to reject Arizona’s proposed position.

In Barry Jones’s case, the district court applied Martinez, finding that Mr. Jones could raise his trial counsel ineffectiveness claim for counsel’s failure to investigate, develop, and present extensive evidence that undermined the state’s case against him. The court further found that the new evidence created a reasonable probability that a jury would have acquitted Mr. Jones at trial, and ordered Arizona to retry or release him. The Ninth Circuit affirmed the district court’s grant of relief. In David Ramirez’s case, the Ninth Circuit held that he was entitled to a hearing, under Martinez, on whether his trial lawyer was ineffective for failing to investigate, develop, and present mitigating evidence of his intellectual disability that may have resulted in a life sentence. Both cases involve egregious attorney errors for counsels’ failures to pursue a wealth of available evidence at both the trial and post-conviction stages.

But Arizona now argues that 28 U.S.C. § 2254(e)(2), a provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), precludes a federal court considering new evidence supporting an ineffective trial counsel claim under the Martinez exception. This approach would create a legal Catch-22 for incarcerated people, effectively closing the window of review that Martinez just opened. Because ineffective trial counsel claims almost always rely on new evidence, Arizona’s position would render the right to a merits hearing established in Martinez meaningless and virtually foreclose relief. According to Arizona, AEDPA should effectively block incarcerated people from obtaining relief from even the most egregious errors in their convictions and sentences despite the state appointing them ineffective counsel at both the trial and state post-conviction stages. Arizona’s interpretation of AEDPA is untenable in light of the equitable principles at the heart of habeas corpus, and basic notions of due process and fairness.

The question before the Court is technical, but important. Section 2254(e)(2) prohibits a federal court from considering evidence in support of a habeas petitioner’s claim if the petitioner was “at fault” for not developing the evidence in state court. In Martinez and many other cases, courts have recognized that people similarly situated to Mr. Jones and Mr. Ramirez are not at fault for failing to properly raise an ineffective trial counsel claim. The same reasoning should apply to deem them not at fault for failing to develop the evidence supporting the claim.

As the district court in Mr. Jones’s case concluded: “it is simply illogical, and extraordinarily burdensome to the courts and the litigants, in a post-Martinez world, for a court to allow full evidentiary development and hearing on the Martinez ‘claim,’ but not allow consideration of that very same evidence as to the merits of the underlying trial-counsel [ineffectiveness] claim because his constitutionally ineffective [postconviction] counsel failed to raise that claim.”

Mr. Jones and Mr. Ramirez argue that Arizona’s contrary position ignores the statute’s language and would upend the balance that AEDPA strikes between state and federal courts. AEDPA strictly limits federal review of claims that incarcerated people raised, or reasonably could have raised, in state court. But in the narrow Martinez context, where two rounds of incompetent lawyers produced extreme malfunction in state-court proceedings, the federal courts maintain their role as a critical backstop.

On the other side, Arizona argues that Martinez hearings are burdening the federal courts and that allowing incarcerated people to present new evidence in support of claims under Martinez undermines the states’ interests in finality of their convictions. Arizona also seems to argue that Martinez incentivizes state-court lawyers to purposely neglect their clients’ cases to set up future federal review, a claim devoid of empirical evidence and disturbing in its baseless assumptions about defense-attorney ethics.

It’s hard to see how a state has any compelling interest in the finality of a wrongful conviction or death sentence. An amicus brief that a group of former federal prosecutors and DOJ officials filed supporting the Respondents stresses that point. And as an amicus brief that some of the country’s leading habeas scholars filed supporting the Respondents explains, the federal courts have granted only a small number of evidentiary hearings on claims under the Martinez exception, belying Arizona’s warnings about open floodgates. Seven other amicus briefs were filed in support of the Respondents, including from retired state and federal judges, the American Bar Association, the Innocence Network, a second group of habeas scholars, the attorney who briefed and argued Martinez, Arizona capital defense experts, and the Capital Habeas Units of the Federal Public Defender system.

On the other side, the Court received three amicus briefs supporting Arizona. Two criminal law professors point to an entirely different provision of AEDPA as a basis for reversing the decisions below; a group of 18 states urge the Court to consider comity, federalism, and finality; and the conservative Criminal Justice Legal Foundation points to concerns about pre-execution delays.

None of these arguments mask the reality that in an effort to nullify Martinez, Arizona is manufacturing a problem that does not exist. Permitting evidentiary hearings in these circumstances—where the state has provided an incarcerated person with two rounds of ineffective counsel—would not undermine federalism nor “flood the federal courts” with hearings. All the states need to do, as Respondents point out, is to design procedures ensuring that people charged and convicted of crimes receive adequate counsel at trial and at the post-conviction stage, and an adequate opportunity to develop and present their claims when ineffective lawyers make mistakes.

The Respondents’ brief explains how their cases highlight both the danger of adopting Arizona’s position and the ways that Martinez is working in its narrowly intended manner. But for Martinez, both men risk execution despite compelling evidence that Mr. Jones is innocent and Mr. Ramirez is a person with intellectual disability.

AEDPA is supposed to be about comity, finality, and federalism. But Arizona’s restrictive interpretation in Shinn v. Ramirez and Jones prioritizes finality over all else, including logic, due process, and justice.

Alexis Hoag is an Assistant Professor of Law at Brooklyn Law School

Think Globally, Act Locally and Globally: Western States Respond to the Climate Crisis

Western states face a daunting manifestation of the climate crisis. Record heat waves - in the triple digits - combined with sustained drought conditions have led to wildfires that burned millions of acres in the west. Not surprisingly, leaders in western states are bringing strong climate action to the UN Climate Change Conference of the Parties (COP 26) that begins this Sunday in Glasgow as they address the present effects of climate change millions are experiencing right now.

Paris, Glasgow, and the U.S. 

The Paris Agreement is a 2015 agreement amongst nearly all of the world’s nations to take action to avoid the worst consequences of climate change. Parties to the Agreement pledged to limit global warming to preferably 1.5 degrees Celsius above pre-industrial levels. Every five years countries must submit their Nationally Determined Contributions (NDC) to explain how they are going to participate in global efforts to slash the greenhouse gases that cause temperatures to rise and contribute to climate change.

In the lead-up to COP 26, countries, including the U.S., have been busy developing their NDCs. However, earlier this year a UN Climate Change report indicated the commitments so far are likely insufficient to stay below the 1.5 degrees target. COP 26 represents a critical opportunity to bring the world’s leaders together to pledge deeper cuts to climate pollutants before the clock runs out to limit global temperature rise to 1.5 degrees.

The United States released its NDC in April, committing to reducing its greenhouse gas emissions between 50 to 52% below 2005 levels by 2030. According to the EPA, as of 2019, the U.S. had cut greenhouse gas emissions 13% from 2005 levels. Continued federal and state climate leadership is critical to slashing U.S. greenhouse gas emissions a further 40% to hit the U.S.’s target and to encourage other large climate polluting countries to adopt achievable plans to cut their emissions at COP 26. State attorneys general are taking climate steps on both the federal and state levels.

Pushing for Federal Climate Leadership

Attention in the second half of 2021 has turned to Congress as it considers passing a strong federal down payment on reducing greenhouse gas emissions. Twenty attorneys general, including the attorneys general of California, New Mexico, Oregon, and Washington, recently urged Congress in a letter to include provisions decarbonizing the power sector, electrifying the transportation sector, and prioritizing climate justice in a budget bill.

While Congress attempts to reach an agreement on climate budget items, attorneys general, especially those from western states, have insisted that the federal government find other ways to cut climate emissions.

Attorneys general have supported federal rules to crack down on vehicle-related emissions as the transportation sector is now the largest sectorial source of greenhouse gas pollution. In July, California Attorney General Rob Bonta and New York Attorney General Letitia James led 22 attorneys general, including those of Colorado, Nevada, New Mexico, Oregon, and Washington, in submitting comments urging the EPA to restore the Golden State’s authority to set its own, stronger greenhouse gas and zero emission vehicle standards. The AGs also urged the EPA to allow other states to adopt California’s vehicle standard as their own. These actions would allow California and other states to adopt standards that cut climate and criteria pollutants.

Two months later, the attorneys general of California and New York rounded up a 13-attorney general coalition (including Oregon and Washington) to send a letter to the National Highway Traffic Safety Administration calling on the agency to reinstate the fee automakers pay for failing to satisfy fleet fuel economy standards. The Trump administration three times disregarded Congress’s instruction to adjust civil penalties to account for inflation, reducing the penalties car companies face for placing vehicles that emit pollutants, including carbon dioxide, on our roads. Reinstating the penalties now would help improve compliance and clean up vehicle fleets.

Perhaps, most importantly, California Attorney General Bonta led 22 attorneys general in September to urge the EPA to promulgate more stringent vehicle emissions standards. As the AGs explained, stronger standards could avoid at least 2,200 million metric tons of carbon dioxide emissions and 2.7 million metric tons of methane emissions and provide between $86 billion to $140 billion total in societal-wide benefits by preventing the worst consequences of the climate crisis.

Improving the energy efficiency of everyday consumer and industrial products represents another opportunity to reduce emissions associated with electricity. California Attorney General Bonta, in September, led the attorneys general of Colorado, Nevada, Oregon, Washington, and other states in supporting, with suggested improvements, the Department of Energy’s (DOE) proposed reforms to its Process Rule. The Process Rule governs how DOE refines energy efficiency standards under its energy efficiency program and DOE used the prior version of the Process Rule in its energy efficiency program that has avoided 2.6 billion tons of carbon dioxide emissions by 2030. Adoption of the recommended modifications to the proposal would unlock future energy savings and emissions reductions by removing obstacles to improving products’ efficiency. Attorneys general have also called for eliminating new product classes for dishwashers and clothes washer and dryer products that currently “allow unlimited energy use” and for strengthened lightbulb standards that could save consumers billions of dollars and the planet millions of metric tons of climate pollutants.

Additionally, attorneys general have also expressed skepticism about further development of fossil fuel resources on federal land without a proper review of a project’s emissions impacts. Earlier this month, Washington Attorney General Bob Ferguson and 10 other attorneys general (including Oregon’s Ellen Rosenblum) pressed the Department of Interior to better analyze the environmental consequences of oil and gas leasing in Alaska’s Coastal Plain.

State Climate Leadership

Western governors and state legislatures have also worked to pass an impressive suite of climate bills this year. In May, Washington state adopted the Climate Commitment Act, which will set limits on greenhouse gas emissions from the state’s largest polluters in line with the state’s statutory requirement to reduce emissions to 95% below 1990 levels by 2050. Additionally, the legislation includes a process that requires the state and local governments to implement additional measures to reduce emissions in overburdened communities, if air quality monitoring reveals that pollution is not decreasing. Lastly, the bill invests in clean energy, clean transportation, and climate justice projects.

In July, Oregon Governor Kate Brown signed two significant pieces of climate legislation into law. Oregon now has one of the most ambitious clean energy mandates in the country - 100% clean energy by 2040. Oregon is also investing in clean transportation by extending electric vehicle purchasing and leasing incentives and requiring utilities to build out electric vehicle charging infrastructure, including earmarking at least half of the funds for underserved communities.

Just last month, California made historic investments in climate action. At the end of the legislative session, the governor signed a budget addendum that provides funding for projects to reduce wildfire risk, over $5 billion in immediate drought response and water resilience, billions for strengthening climate resilience in front line communities, and putting 1,000 zero emission trucks, school buses, and transit buses on California’s roads.

Conclusion

Two thousand twenty-one has been a sobering year in the west and around the world. Western Canada and the United States suffered triple digit heat surges, fueling climate chaos and leveling communities. Both China and Germany saw extreme flooding from rain events, while this is the sixth straight year of above average activity during the Atlantic hurricane season.

It is all the more important that the global community come together in Glasgow this Sunday to chart a path to meet the Paris target of keeping global temperature rise since pre-industrial times to 1.5 degrees Celsius. The Biden administration has advanced a plan to contribute to these efforts by slashing greenhouse gas emissions by at least 50% below 2005 levels by 2030. So far, the U.S. has cut emissions about 13% since 2005 - or about one-quarter of the 50% target.

Even while they are facing climate change as a current event, western leaders, including western state attorneys general, are stepping up to provide the Biden administration the tools it needs to achieve the remaining emissions reductions required. Governors and legislators in the west and elsewhere are adopting their own climate pollution mitigation programs in the power and transportation sectors, and attorneys general are pushing federal agencies to cut carbon electricity emissions and improve energy efficiency. President Biden, thanks at least in part to western climate leadership, can head to COP 26 with a roadmap to a climate-friendly future.

To learn more about this and other climate work of western attorneys general, join the State Impact Center for a webinar with California Attorney General Rob Bonta and Oregon Attorney General Ellen Rosenblum on Friday, October 29 at 5 Eastern/2 Pacific, titled Confronting the Climate Crisis: Western AGs Respond (a video recording of the webinar will be available later). Register for the event here .