🍻 Selber Bier Brauen

Seasoned court watchers were no doubt surprised by the English High Court’s decision to overturn the British Home Secretary’s decision to proscribe Palestine Action. For anybody even casually familiar with British courts’ approach to national security-related matters, the odds of success were not good.

Palestine Action are described by their founders as “a direct action protest group aimed at preventing military targets in the UK from facilitating gross abuses of international law”. Their main targets have tended to be Elbit Systems, an Israeli arms manufacturer with premises in the UK; however, they have also targeted other businesses with supposed links to the Israeli weapons trade. Following a break-in at RAF Brize Norton in which Palestine Action activists spray-painted two aircraft, the government took the step of proscribing the group under Part II of the Terrorism Act 2000. Proscription triggers several specific criminal offences such as declaring support for a proscribed organisation, or wearing a uniform or displaying or publishing an image that could be supportive of such a group. This latter offence has seen thousands of people arrested as protests erupted across the UK in the wake of the ban.

The judgment (R(Ammori) v SSHD)  is certainly not a slam-dunk victory for Palestine Action and it is replete with extensive discussion condemning the actions of the group. And yet despite these admonishments, the judgment intimates at wider concerns as to the role of counter-terrorism legislation in liberal democracies, and indeed, the role of unfettered executive discretion more generally. In this regard, this is a judgment that is perhaps as striking for what it doesn’t say as for what it does and in an age of rising authoritarianism, we should listen carefully to the silence.

Soft Law in Hard Times

The Court found that the decision to ban Palestine Action was unlawful for two reasons: first, that the decision was not in alignment with the Home Secretary’s long-standing policy in respect of the power to proscribe; and secondly, that the decision to proscribe was a disproportionate interference with the right to freedom of expression and freedom of association under Article 10 and 11 ECHR respectively.

In relation to the first ground concerning the Home Secretary’s policy regarding proscribing organisations, the Court found that this policy contained five factors, all of which operated to constrain the Home Secretary’s discretion. A further, “other factors” clause must therefore also be interpreted in light of this constraining purpose of the policy. In this instance, the Home Secretary had used this “other factors” clause to expand her discretion by taking into account the “significant disruptive benefits” that proscription would have on Palestine Action’s activities.

This constraining aspect of the policy is evident from previous Home Secretaries’ refusal to proscribe certain organisations such as animal rights activists, notwithstanding the fact that they met the threshold definition of terrorism. The constraint can also be seen currently in the failure to proscribe any extremist Israeli settler organisations that meet the threshold, with the government preferring to use sanctions under the Sanctions and Anti-Money Laundering Act 2018 instead.

This part of the judgment concerning the constraining effect of the policy has been controversial, with one commentator suggesting that “it is axiomatic that the Home Secretary… would refer to the ability to rely on the 2000 Act offences as an operational measure in favour of proscription.” Such offences are, after all, the “raison d’etre” for the proscription power in the first place. Relatedly, if stating that the purpose of the policy is to “limit the discretionary power to proscribe”, this is improbable as it would “impermissibly fetter the Home Secretary’s discretion” to proscribe organisations. There is certainly legal merit to these perspectives; however, I believe that these views unduly downplay the scope of reliance upon illegitimate discretion in the field of counter-terrorism law.

I do not use the term “illegitimate” here lightly. In R v Gul, the UK Supreme Court was crystal-clear that relying upon prosecutorial discretion to temper the breadth of the section 1 definition could not justify the breadth of this definition. However, the Court also stated that in that case, it was unable to narrow this statutory definition itself and so it was up to Parliament.

Parliament, however, has failed to act to revise the definition. Not only this, successive governments have doubled down on decision-making discretion as a means to temper perverse applications of counter-terrorism powers. For instance, under Schedule 7 of the Terrorism Act 2000, the UK can examine and detain anybody without reasonable suspicion at ports and airports for the purpose of assessing whether they are involved in terrorist-related activity. In Miranda v SSHD—a case concerning the Edward Snowden leaks—the Court of Appeal issued a declaration of incompatibility under section 4 of the Human Rights Act 1998, finding that Schedule 7 did not afford sufficient protection to journalistic material and so contravened Article 10 ECHR. Rather than amend Schedule 7, the government merely amended the Code of Practice which officers exercising Schedule 7 powers ought to follow; i.e. they relied upon discretion to address the declaration of incompatibility, notwithstanding the Supreme Court’s statement in Gul that discretion cannot justify the breadth of section 1. This revised code of practice did not stop officers at St Pancras station, London, from detaining Ernest Moret, a French publisher, during the 2023 protests over President Macron’s pension reforms. The Met Police subsequently paid a “five-figure sum” to Moret to settle a claim for misfeasance in a public office and false imprisonment.

All this points to the increasingly prominent role that “soft law” sources like policies, codes of practice, and guidance now play in counter-terrorism law. This “soft law” exists on a sliding scale of hardness and my reading of the Ammori judgment is that the High Court is attempting to harden these sources into more tangible legal constraints.

But this can cut both ways and can also result in a conclusion favourable to the government.

For example, the High Court in Ammori returns to the theme of soft law and guidance later on in the judgment when they note that the police have received guidance concerning how they arrest individuals at protests for the section 13 offence of wearing clothing or displaying an article that gives rise to a reasonable suspicion that the person is a member or supporter of a proscribed organisation. Notably, this is a strict liability offence—the prosecution is not required to prove intention—meaning that it can have a significant effect on the right to freedom of expression and association as one may be prosecuted of the offence, even if they had no intention of supporting a proscribed organisation. In this circulated guidance regarding section 13, the police are advised that “being in support of de-proscribing Palestine Action would not necessarily be supporting Palestine Action”. However, this statement does not appear in the legislation; in fact as the legislation refers to a “reasonable suspicion,” it could be possible that displaying a placard opposing the proscription of Palestine Action is, in fact, an offence under Section 13.

What matters for our discussion is the Court’s reliance on guidance as a means of constraining police discretion, concluding that “police forces have guidance that provides information necessary for them to act appropriately and to apply the relevant offences under the 2000 Act correctly.” The court has crystallised this guidance into a norm capable of shaping the court’s interpretation which, in this instance, points in favour of the state. So on the one hand, if one is to contend that the Court was incorrect in applying an overly rigid policy to constrain the discretion of the Home Secretary, consistency demands that the Court should not have relied on guidance to justify constraining police discretion and so the court should re-examine the degree to which the risk of individuals being wrongly identified by the police and prosecuted for section 13 offences is compatible with Article 10 and 11 ECHR.

All of this reliance on soft law demonstrates the UK’s “good chaps” approach to counter-terrorism and, indeed, executive and political power more generally. Vast conferrals of discretionary power on decision-makers are viewed as fine because we can trust the individual characters, traditional practices, and general norms guiding the behaviour of officials to act as a sufficient constraint and prevent abuse of power. It follows that legislative constraints on such powers are unnecessary. However, this “good chaps” theory has been put under severe strain in recent years due to Brexit and, indeed ”Partygate” during the Covid-19 pandemic. The hardening of soft law seen in the Ammori judgment therefore hints at an increasing scepticism on the Court’s part that we can, in fact, trust the good chaps.

Deference should be Earned

This suspicion is further compounded by the notable absence from the judgment of any detailed consideration of the notion of deference to the executive’s assessment of Palestine Action. One would have expected some engagement with deference in the context of a proportionality assessment as to the balance to be struck between the government’s stated legitimate aim and the affected rights in question. This is particularly surprising in a judgment concerning matters of national security. The word “deference” is not used once in the judgment; the closest we get to any consideration of something akin to deference is at paragraph 128 where the Court notes that:

“the court must permit some latitude to the Home Secretary given that she has both political and practical responsibility to secure public safety”.

Despite this acknowledgement the Court found that:

“At its core, ‘Palestine Action is an organisation that promotes its political cause through criminality and encouragement of criminality. A very small number of its actions have amounted to terrorist action within the definition at Section 1(1) of the 2000 Act. For these actions, the ordinary criminal law is available to prosecute those concerns.“

For this reason therefore, the Court found the ban disproportionate.

Deference should not be automatic; it must be earned and the manner in which the decision to proscribe Palestine Action was taken is undeserving of deference. The Home Secretary heavily suggested to the press, including briefing certain outlets, that Palestine Action was funded by Iran; however, no evidence of this was presented to the Court to corroborate this claim. Nor was the manner in which Parliament was asked to review the decision to ban Palestine Action above the board either. The proscription order was lumped in with two other groups: Maniac Murders Cult and the neo-Nazi Russian Imperial Movement. Any MP or peer voting against the proscription of Palestine Action therefore was also required to vote against banning these two groups.

The government’s conduct therefore surrounding the proscription of Palestine Action was unscrupulous and showed a disregard for parliament and, indeed, wider democratic norms concerning candour in public office. None of this, however, expressly features in the Ammori judgment. However, failure to engage in detail with the notion of deference heavily suggests that the Home Secretary’s decision was not one meriting deference. My reading of this judgment is that there is a latent concern at the breadth of discretionary powers afforded to decision-makers such as the executive, police, and Crown Prosecution Service by the UK’s counter-terrorism apparatus. I share these concerns which are only further compounded by recent changes made to public order legislation which strictly curtail the right to protest, as well as further plans to allow protests be banned on the basis of their “cumulative impact”.

Ultimately, this is a judgment where the Court carried out the kind of close scrutiny that Parliament ought to have done, and, indeed the UK’s Independent Reviewer of Terrorism Legislation ought to have done. On the contrary, the UK’s Reviewer Jonathan Hall endorsed the Home Secretary’s decision to proscribe Palestine Action. Human rights concerns are almost wholly absent from this piece with the Independent Reviewer instead stating that he  is ‘unconvinced’ of the chilling effect of such bans. His lack of concern stands in stark contrast to his international colleagues such as UN Special Rapporteur on Counter-Terrorism and Human Rights Ben Saul who directly intervened in the case to argue that the ban was disproportionate.

In an age of democratic backsliding and rising authoritarianism, we should all be deeply concerned as to the possibility of abuse of discretionary power. The Ammori judgment can be viewed as a court attempting to rein in some of these excesses but it also reveals the High Court’s isolation—an isolation which could be increased if the judgment is overturned on appeal. The reliance on soft law reveals the Ammori judgment’s weakness. Most soft law instruments such as policies and guidance can be changed without any parliamentary input. They are thus at the whim of the executive. And so a court judgment reliant on the interpretation of policy can also be overturned as easily. The human rights part of the judgment is therefore on much more entrenched legal grounds, based as it is upon the Human Rights Act 1998 and ECHR. However, this entrenchment is accompanied by increased political controversy as it runs the risk of placing UK membership of the ECHR once again high on the political agenda. Ultimately, democracy and human rights require more than just lawyers and faith in the good chaps to protect it. It requires those who are democratically elected to be democrats and actually value democracy.

The post Soft Law in Hard Times appeared first on Verfassungsblog.

The European Court of Human Rights (ECtHR) issued an inadmissibility declaration in the climate case of Fliegenschnee and Others v. Austria. While an unsuccessful outcome was expected, the decision nevertheless clarifies three aspects of the Court’s climate jurisprudence, which this blog post examines. Taken together, the case shows that the Court neither demanded more than in previous cases nor reneged on its requirements as laid down in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland.

The application was brought by three individuals and an environmental association. The applicants requested that the then Federal Minister for Digital and Economic Affairs issue an ordinance prohibiting the sale of fossil fuels by mineral oil and petroleum distributors as of specified future dates (para. 2-4). The Federal Minister rejected the request. Both the competent Regional Administrative Court and the Austrian Constitutional Court upheld the rejection, finding that the Federal Minister lacked the authority to issue such a ban under the Austrian Constitution (para. 5-7).

In principle, the ECtHR upheld the Austrian Constitutional Court’s decision and confirmed that the Convention does not grant a right to any particular climate mitigation measure (para. 33). And while it is not surprising for the ECtHR to reject the victim status of the individual applicants, it is questionable why the association was denied standing as well (para. 31-32). For the first time, the Court was also faced with a complaint over an applicant’s property rights under Article 1 of Protocol No. 1 to the Convention in relation to climate change (para. 36).

No right to a specific mitigation measure

In Fliegenschnee, the ECtHR continues to develop its case law on positive obligations under Article 8 in the context of the climate crisis. The Court clarified that Article 8 does not “guarantee a right to a specific mitigation measure by a specific State body under a certain sectoral law of an applicant’s choice” (para. 33). It reiterated that States enjoy a wide margin of appreciation in their choice of measures to achieve their climate goals. This is not new: In KlimaSeniorinnen, the Court held that mitigation measures are necessarily part of a wider regulatory framework spanning various sectors (KlimaSeniorinnen, para. 418). Similarly, in Greenpeace Nordic and Others v. Norway, the Court confirmed that this margin includes “operational choices and the adoption of policies […] in light of the State’s priorities and resources” (Greenpeace Nordic, para. 315).

It is therefore not surprising that the Court accorded a wide margin of appreciation – especially as the requested measure lay outside the competence of the particular authority engaged.

The Court’s engagement with evidence

The Court repeatedly emphasised that there was insufficient evidence to establish victim status or a substantial threat to the applicants’ Convention rights. This is significant in two respects: first, the Court found that none of the applicants – neither the individuals nor the association – had provided sufficient evidence to substantiate their victim status (para. 31-32). This is not particularly surprising with regard to the individual applicants. In KlimaSeniorinnen, the Court established that (1) an individual applicant must show that they are subject to a high intensity of exposure to the adverse effects of climate change, that is, the level and severity of (the risk of) adverse consequences of governmental action or inaction affecting the applicant must be significant, and (2) the absence or inadequacy of any reasonable measures to reduce harm owes to a pressing need to ensure the applicant’s individual protection (KlimaSeniorinnen, para. 487).

The exceptionally high threshold for individual victim status set out in KlimaSeniorinnen was likely to hinder the individual applicants’ access to the Court, especially after the Court clarified in Greenpeace Nordic that individual applicants must submit medical evidence showing both a diagnosis and the severity of the alleged condition affecting each applicant individually (Greenpeace Nordic, para. 304). In Fliegenschnee, the Court concluded that none of the applicants had provided “any evidence to substantiate the alleged vulnerabilities that would render them particularly at risk” (para. 31).

The more interesting – and perhaps more concerning – aspect of the Court’s decision is its treatment of the association’s locus standi. The association is a recognised environmental association under Austrian law and has standing in domestic environmental proceedings under the Austrian Environmental Impact Assessment Act. The Court accepted that this satisfied the first part of its criteria for associations’ locus standi, namely that the association is lawfully established within the jurisdiction, has standing there, and pursues a dedicated purpose – based on its statutes – related to environmental protection (para. 32). However, it questioned whether the association could be said to have a dedicated purpose of defending human rights in the environmental context and whether it could be regarded as a representative of its members or other affected individuals, as no statutes or other membership information were submitted to the Court (ibid.). The Court avoided giving a definitive answer on what exactly an association must prove to obtain standing before it, stating that the complaints were inadmissible for other reasons and that it was therefore unnecessary to determine the association’s standing (ibid.). Yet, in Greenpeace Nordic the Court had no problem accepting the standing of one of the associations despite it not being a membership organisation (Greenpeace Nordic, para. 309). It remains unclear why the Court was so restrictive with the association in Fliegenschnee but willing to accept the standing of the association in Greenpeace Nordic. Additionally, the applicants in Fliegenschnee lodged their complaint before KlimaSeniorinnen was decided, meaning they did not know at the time of application which documents were considered necessary evidence.

Protection of property under Article 1 of Protocol No. 1 to the ECHR

Fliegenschnee is the first climate decision in which the Court had to address the protection of property under Article 1 of Protocol No. 1 to the Convention. One of the applicants complained that her economic livelihood as a farmer – and thus her property rights – had been endangered because of climate-induced droughts (para. 36).

However, the Court was unwilling to examine the implications for rights beyond those already applied to climate change in KlimaSeniorinnen. It confined itself to merely observing that previous case law does not indicate that Article 1 of Protocol No. 1 applies to climate cases (para. 37). It is understandable that the Court did not engage in a detailed substantive analysis when declaring an application inadmissible. Nevertheless, particularly in light of the Inter-American Court of Human Rights’ (IACtHR) Advisory Opinion, which recognizes that the climate crisis heavily impacts the use and enjoyment of individuals’ property, that climate-related disasters may violate property rights, and that States are obliged to protect these rights (Advisory Opinion AO-32/25, para. 406 et seq.), climate litigants may have wished for a clearer position by the ECtHR on whether Article 1 of Protocol No. 1 is applicable to climate-related damage. Still, by leaving the door to the applicability of the right to property slightly ajar, the Court may, in future climate-related cases, further develop its case law, just as it did in KlimaSeniorinnen, in order to respond to the specific features of the climate crisis.

A look at the Court’s general jurisprudence on property rights in relation to the environment can shed some light on how the Court could develop its case law with respect to climate change. The Court has previously examined interferences with property rights caused by natural disasters, such as landslides, and has held that States generally bear protective obligations. Although these positive obligations are narrower for natural hazards beyond human control than for dangerous activities of a man-made nature (Budayeva and Others v. Russia, 2008, para. 174), this distinction does not apply to climate-related disasters, which are inherently shaped by human action. Still, a distinction must be drawn between the positive obligations under Articles 2 and 8 ECHR and those under Article 1 of Protocol No. 1 to the Convention. States enjoy a wider margin of appreciation in deciding on the measures to protect property rights than on those needed to protect lives (Budayeva, para. 175). This would likewise apply to cases in the particular context of the climate crisis.

The Court further stated that – even if Article 1 of Protocol No. 1 were applicable – the applicant would not fulfil the criteria for victim status under Article 34 of the Convention. Referring to KlimaSeniorinnen, the Court reiterated that the threshold for individual victim status is especially high in climate cases (para. 37). Accordingly, it may be presumed that in future climate litigation alleging violations of property rights, the ECtHR would rely on the criteria for victim status of individuals developed in KlimaSeniorinnen. These restrictive criteria, however, cannot be applied in cases where the applicant does not just claim the risk of an infringement of their property rights but is already affected by the alleged violation.

If the Court indeed chooses to restrict the victim status of individuals under Article 1 of Protocol No. 1, this must be accompanied by the possibility for collective legal protection. Thus, the reference to KlimaSeniorinnen would furthermore indicate that associations have legal standing regarding climate cases alleging a violation of the protection of property.

Outlook

Fliegenschnee neither broadened nor narrowed down the Court’s overall assessment of climate protection cases. The three points we covered in this blog post do not change the overall climate jurisprudence of the Court. While some points should be evaluated further in future cases, several other points were neither evaluated nor in question in Fliegenschnee. Most importantly, Müllner v. Austria will likely shed light on how high the threshold for victim status of individuals will play out in practice, potentially being the first case to succeed on that front. There are two more climate cases pending before the ECtHR to look out for: Ecodefense & Other NGOs v. Russia, which in the context of Indigenous rights also relates to the protection of property, and The Norwegian Grandparents’ Climate Campaign and Others v. Norway, challenging the granting of petroleum licenses. The Russian case may allow the Court to expand its jurisprudence to property rights. The Norwegian case will be interesting as the applicants challenge a specific measure, and if the Court upholds Fliegenschnee, it might prove difficult for this case to succeed.

The post High Thresholds and Wide Margins appeared first on Verfassungsblog.

Fueled by resentment, xenophobia, and, one can assume, a growing awareness of his party’s diminishing prospects in the upcoming midterms, President Trump recently suggested that his party “nationalize” elections. As every expert to have weighed in on the matter has noted, the claim is preposterous. Even Texas Governor Greg Abbott, a staunch ally of the President, has expressed resistance to the idea. Simply put, the President has no direct authority over elections. While there are legitimate fears about Trump’s willingness to interfere with this Fall’s elections, he has no power to assume the control he desires. Yet Trump’s interventions are deeply unsettling, and serve to cast aspersions on the thousands of honest election workers whose contributions are essential to our electoral process.

The U.S. Constitution gives election authority to States

American elections are decidedly decentralized. Unlike countries like Australia, Canada, Mexico, and South Korea, each of which have a national electoral management body, American elections are run at the state, county, and local levels. This model is a product of U.S. history. The delegates to the 1787 Constitutional Convention were at odds over how elections should be run. So they decided not to decide, and left those decisions to the States. States are expressly empowered in the Constitution to determine voter qualifications and to regulate the “Times, Places, and Manner” of elections (the relevant provisions refer to federal elections, there being no doubt about States’ authority to regulate state and local elections). To be sure, States’ regulatory authority is limited by various constitutional amendments, federal statutes, and Supreme Court decisions (e.g., prohibiting discrimination based on race), but in general the “nuts and bolts” of election administration occur free from constraint. The one body that does possess constitutional authority to regulate in this area is Congress, and legislative enactments are of course subject to presidential veto. But, again, the notion that the President has any unilateral authority to manage elections is fantastic. Unless Congress expressly empowers the President to take some election-related action (which it has not), the President has no source of authority from which he can draw to act in the electoral sphere.

To state the obvious, the rule of law has never constrained Trump’s wish fulfillment. He still denies the fact that he lost the 2020 presidential election. Hence his endless peddling of misinformation about the reliability and security of our election systems. In his imagination, his loss is only explainable by the existence of widespread fraud within the electorate. Such conspiracism would be less harmful if the Republican Party refused to countenance it. Sadly, the opposite is true; pronounced election denialism has become a reliable means of career advancement in the party. Alleged fraud also serves as a pretext for Trump’s varied and legally dubious attempts to reshape election administration. Even if these efforts all prove unsuccessful, they are disruptive, distracting, and give oxygen to false ideas about our voting processes. Thus, it is worth appraising what has transpired.

Executive order on elections

Trump’s intentions were evident early in his second term. In March of last year, he issued an executive order requiring those registering to vote in federal elections to present documentary proof of citizenship, and putting pressure on states to refuse late arriving ballots (i.e., mail ballots that are sent prior to, yet not received until after, election day). As I noted at that time, the executive order was legally unsound on multiple grounds. And sure enough, in the intervening months, multiple federal courts have invalidated its key portions. The President is not a lawmaker and, again, elections are run by states and localities.

SAVE America Act

Spurred on by Trump’s call to nationalize elections, House Republicans moved swiftly last week to pass the SAVE America Act, a bill that would require voters to show documentary proof of citizenship both when registering to vote, and when actually voting. Thus, the bill attempts to do what Trump’s executive order legally cannot. Though, just like the executive order, the bill is cynical in its suggestion that noncitizen voting is anything but miniscule. The bill would additionally require states to give the names of all registered voters to the Department of Homeland Security. This provision tracks the Department of Justice’s months-long effort to gather voter data through litigation. The stated motive is to confirm that only eligible voters are registered, though it is widely believed that the Trump Administration would use the data to either purge Democratic voters, or, even more nefariously, fear-monger about noncitizen voting. Late last year the Department began suing states for the data, a quixotic ploy that threatened the privacy of voters’ personal information. In recent weeks, three federal courts have ruled against the Department for just that reason. And perhaps most notably, several Republican state election officials have pushed back against the demand, highlighting the Department’s obvious overreach and election officials’ concerns about how the data might be abused.

Fortunately, the bill has virtually no chance of making it through the Senate, where majority leader John Thune of South Dakota has already stated that the chamber will not eliminate the filibuster in order to pass the bill (eliminating the filibuster would lower the threshold for passage from sixty votes to fifty). Nevertheless, the bill perpetuates the lie that elections are fraudulent.

FBI raid in Georgia

A final startling indication of Trump’s authoritarian impulses in the electoral realm occurred at the end of January when the Federal Bureau of Investigations raided an election center in Fulton, County, Georgia and seized around 700 boxes of ballots cast in the 2020 presidential election. As many will recall, Georgia was one of the states that Trump lost in the 2020 election, leading to his infamous phone call with Georgia’s then-Secretary of State, Brad Raffensperger, in which Trump asked Raffensperger to “find 11,780 votes” and flip the state to Trump. Raffensperger refused, leaving Trump with a grudge. Years later, it appears that Trump is still bruised. The spectacle is clearly intended to fan the flames of election denialism and bolster Trump’s revisionism. In fact, the affidavit (i.e., the written sworn statement of fact) relied on by the FBI to justify the raid was itself replete with election denialist innuendo. Just over a week ago, Fulton County filed a lawsuit seeking the return of its property from the FBI.

The approaching midterms

The most troubling prospect is that the aforementioned actions are but a prelude to more aggressive forms of federal interference with the midterms. It is reasonable to fear that Trump will fabricate some justification for deploying federal law enforcement – whether the FBI, Immigration and Customs Enforcement, or the National Guard – to “monitor” the elections, or worse yet, confiscate ballots. Such stratagems are legally suspect. For instance, federal law prohibits the presence of “any troops or armed men” at polling places unless needed to “repel armed enemies of the United States.” These tactics would nevertheless be substantially disruptive. The disquieting truth is that Trump knows that the mere creation of an atmosphere of doubt about the sanctity of our elections works to his benefit. Vast numbers of his followers remain reflexively credulous when it comes to his election claims. It is imperative, then, that state and local election officials receive adequate support and protection such that they can perform their democratic duties free from fear and intimidation. As bleak and surrealist as it is to contemplate, Americans must prepare now to fortify the upcoming elections from their own head of state.

The post Nationalization Nonsense appeared first on Verfassungsblog.