THE THREAT OF PARTISAN LAWFARE Jonathan H. Wright

The Threat of Partisan Lawfare

Jonathan H. Wright

Edited by Whitney Gassmann Menes

As the gulf between America’s opposing political camps continues to widen, legal conflict between and within the states, the federal government, and corporations becomes increasingly common, threatening the basic functionality of the American legal system as the law itself is distorted for political ends. It is necessary to determine the nature and severity of the danger posed by this trend. The rise of this partisan belligerence is undeniable: it can be seen in recent actions such as governmental litigation against companies that officials perceive as political enemies, lawsuits between federal, state and local authorities over policy disagreements, and an aggressive legal campaign surrounding the 2020 election. There is a worrying likelihood that as the political climate continues to worsen, more serious forms of lawfare will become common, placing further strain on the country’s legal system. In this paper, I will examine several types of lawfare which appear likely to become more common in the United States, using prominent recent examples of legislation and litigation as case studies. Taking into account historical precedent, recent cases, and the people who make up the political and legal systems, I will examine the threat posed to the continued functionality of the U.S. legal system by each form of partisan legal warfare. In so doing, I will provide useful insights to those hoping to mitigate the damage caused by these trends.

I. INTRODUCTION

For the purposes of this paper, partisan lawfare refers to the use of the legal system to gain advantages for one’s political party or faction. Most lawsuits filed for political purposes do not contain any direct admissions of the intent to pursue political gain, and the lawyers arguing them generally pretend more credible motivations such as the defense of their clients or the protection of the constitution. As such, a lawsuit will be considered an example of partisan lawfare if partisan gain can be reasonably inferred as one of the motivations for the lawsuit based on the relevant and contemporaneous statements and actions of those who filed the suit, or of others meaningfully connected to those who filed the suit. With partisan lawfare defined, it is also necessary to provide a brief disclaimer about the nature of this paper’s claims about the dangers of lawfare. The argument of this paper is not that the existence of partisan lawfare in any form at all is a danger to the US legal system, as there have always been lawsuits with partisan motivations. Rather, the argument is that the inhospitable political climate has led to an increase in the frequency and intensity of lawfare, with this increase being the real source of the danger. The rapid escalation of partisan lawfare presents a threat to everyone in the United States, not just attorneys or politicians. The legal system plays an essential role in the lives of ordinary people. Litigation can slow or halt the implementation of a federal law or regulation, altering the lives of all those affected by that law’s provisions. Changes in legal precedent redefine the relationships between powerful corporations and the society around them. Alterations to election law can even impact the perceived legitimacy of the government. It is imperative that an idea of the common good informs the thinking of both judges and litigators as they shape and reshape the laws. With the legal system increasingly hijacked for the purposes of lawfare, precedents are set and overturned haphazardly as a byproduct of political maneuvering, and everyone is forced to live with the consequences. As of now, the consequences have become too visible to ignore. One of the earliest signs of today’s legal turmoil was the rising frequency of lawsuits between levels of government. The first indicators of trouble appeared towards the end of the Obama administration, with the situation continuing and intensifying under Trump. Dr. Paul Nolette’s database of multistate lawsuits against the federal government between 1980 and 2017 clearly illustrates that this level of friction between state and federal AGs is historically abnormal and rapidly worsening.409 Between the years 1980 and 2014, the number of lawsuits filed by multistate coalitions of AGs against the federal government remained small, with only 4.229 in an average year. This number did not fluctuate much either, with a median of 4 suits per year. In 2015, the decades-long peace was shattered. In that year, there were 13 multistate lawsuits, and in 2016, the number stayed the same. In 2017, during President Trump’s first year in office, the number almost tripled, with 37 suits launched by state AGs against the federal government. The average number of suits for the tumultuous 2015-2017 period was 21, a staggering increase relative to the years between 1980 and 2014. The increase in intergovernmental lawsuits has not been limited to multistate suits against the federal government- there has also been frequent litigation by single states against the federal government, as well as by the federal government against state and local governments. Single state litigation usually takes the form of constant lawsuits by prominent states against a Presidential administration of the opposing party. During the Obama years, the conservative state of Texas

409 Paul Nolette, Federal-State Relations, CQ RESEARCHER (Apr. 27, 2018), https://library-cqpresscom.libproxy.chapman.edu/cqresearcher/file.php?path=/images/CQ_Researcher/r20180427-suitsurgelongdesc.html.

sued the US government more than 30 times.410 During that time, Texas Attorney General Greg Abbott joked that “I go into the office in the morning. I sue Barack Obama, and then I go home. ”411 During the Trump administration, California took over the role once filled by Texas. As of 2018, it had already sued the US government more than 30 times.412 California’s Attorney General Xavier Becerra “emerged as a megaphone for progressive values” against the Republican President, launching frequent challenges to federal immigration policy. 413 He has filed lawsuits in response to almost all of the administration’s actions in this area, challenging the removal of DACA protections,414 the addition of a citizenship question to the census,415 the creation of the public charge rule,416 restrictions on asylum seekers,417 and detention of migrants at the USMexico border.418 The federal government has responded to these challenges with lawsuits of its own. During the Trump administration, US AG Jeff Sessions sued California several times, with a special emphasis on challenging the legality of CA’s controversial decision to become a sanctuary state. 419 A trend of increasing multistate lawsuits is not necessarily proof of partisan lawfare, as there would need to be evidencethat partisanship is causing the increase. Examining the statements of prominent Attorneys General provides this evidence. Federal and state AGs frequently make public statements in conjunction with the announcement of a new lawsuit. By examining the human element- the rhetoric and stated goals of the AGs- it is possible to understand what is motivating this flurry of litigation. One of the most prominent figures in federal suits against states and localities during the Trump administration was US AG Jeff Sessions. On March 7, 2018- while the federal government was fighting California over border enforcement- AG Sessions delivered a speech to the California Peace Officers’ Association in Sacramento. In the speech, he took an aggressive posture towardsCalifornia, attacking political enemies and their policies in harsh terms.

410 Alan Greenblatt, Federal-State Relations, CQ RESEARCHER (Apr. 27, 2018), https://library-cqpresscom.libproxy.chapman.edu/cqresearcher/document.php?id=cqresrre2018042700&type=hitlist&num=11.

411 Id. 412 Id. 413 Patrick McGreevy, California voters are getting to know the state’s attorney general through his aggressive stance challenging Trump, L.A. TIMES, APRIL 15, 2018 12:05 AM PT. 414 Xavier Becerra, Attorney General Becerra Leads Multistate Amicus Brief to Protect DACA Recipients Against Unlawful Termination, STATE OF CALIFORNIA DEPARTMENT OF JUSTICE (Dec. 21, 2018), https://oag.ca.gov/news/press-releases/attorney-general-becerra-leads-multistate-amicus-brief-protect-dacarecipients. 415 Xavier Becerra, Attorney General Becerra Sues Trump Administration over Unconstitutional Decision to Add Citizenship Question on 2020 Census, STATE OF CALIFORNIA DEPARTMENT OF JUSTICE (Mar. 27, 2018), https://oag.ca.gov/news/press-releases/attorney-general-becerra-sues-trump-administration-over-unconstitutional. 416 Xavier Becerra, Attorney General Becerra Denounces Trump Administration’s Proposed Regulation on Public Charge, Fights for California Families, STATE OF CALIFORNIA DEPARTMENT OF JUSTICE (Dec. 11, 2018), https://oag.ca.gov/news/press-releases/attorney-general-becerra-denounces-trump-administration%E2%80%99sproposed-regulation. 417 Xavier Becerra, Attorney General Becerra Leads Multistate Amicus Brief Calling for Preliminary Injunction to Protect Asylum-Seekers, STATE OF CALIFORNIA DEPARTMENT OF JUSTICE (Dec. 6, 2018), https://oag.ca.gov/news/press-releases/attorney-general-becerra-leads-multistate-amicus-brief-calling-preliminary. 418 Xavier Becerra, Attorney General Becerra Leads Coalition Opposing Trump Administration’s Proposal Regarding Immigrant Children Detained by Federal Government, STATE OF CALIFORNIA DEPARTMENT OF JUSTICE (Nov. 7, 2018), https://oag.ca.gov/news/press-releases/attorney-general-becerra-leads-coalition-opposingtrump-administration%E2%80%99s. 419 Alan Greenblatt, Federal-State Relations, CQ RESEARCHER (Apr. 27, 2018), https://library-cqpresscom.libproxy.chapman.edu/cqresearcher/document.php?id=cqresrre2018042700&type=hitlist&num=11.

While decrying what he saw as California’s disregard of federal supremacy, the US AG invoked the American Civil War:

Immigration law is the province of the federal government. This Administration and this Justice Department are determined to make it work effectively for the people. I understand that we have a wide variety of political opinions out there on immigration. But the law is in the books and its purpose is clear. There is no nullification. There is no secession. Federal law is “the supreme law of the land.” I would invite any doubters to Gettysburg, and to the graves of John C. Calhoun and Abraham Lincoln.420

Sessions went on to describe California’s sanctuary policy as “a radical, irrational idea that cannot be accepted” and accuse the mayor of Oakland of needlessly endangering the lives of law enforcement.421 The state AGs that sued the federal government during the Trump administration also had strong words for their opponents. At the head of a coalition of 18 attorneys general, New York State AG Eric Schneiderman joined the challenge to the President’s controversial travel ban by filing an amicus brief in two separate cases: Trump vs. IRAP and Trump vs. Hawaii. He announced the amicus brief in a short press release on his official website. In the press release, he described the administration’s policy as “unconstitutional, unlawful, and un-American.”422 The attitudes of AGs Abbott and Becerra have already been mentioned. Interestingly, the phenomenon of partisan AGs is not limited to the deepest red or blue states. Rhetoric similar to that of Schneiderman, Abbot, and Becerra is becoming more common in states that are typically thought of as moderate. In Minnesota AG Keith Ellison’s frequent press releases announcing legal challenges to the Trump administration’s immigration policy, he has taken an accusatory, moralistic tone. Over several press releases, he insisted that the idea of a citizenship question on the 2020 census was “clearly prejudicial, ”423 declared that “President Trump’s cruelty violates Minnesotans’ sense of decency, ”424 and described a rule change speeding up the deportation process as “cruel, inhumane, and contrary to every value we as Minnesotans hold dear.”425 More recently, Ohio AG Dave Yost has been combative towards the Biden administration. When the DHS changed its guidelines for enforcement of civil immigration law,

420 Jeff Sessions, Attorney General Sessions Delivers Remarks at the 26th Annual Law Enforcement Legislative Day Hosted by the California Peace Officers' Association, DEPARTMENT OF JUSTICE (Mar. 7, 2018), https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-26th-annual-law-enforcementlegislative-day.

421Id. 422 Eric Schneiderman, A.G. Schneiderman Leads New SCOTUS Brief In Travel Ban Case, NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL (Sep. 19, 2017), https://ag.ny.gov/press-release/2017/ag-schneidermanleads-new-scotus-brief-travel-ban-case. 423Keith Ellison, AG Ellison: ‘Every Minnesotan, no matter their citizenship or immigration status, must be counted,’ THE OFFICE OF MINNESOTA STATE ATTORNEY GENERAL KEITH ELLISON ( Jun. 27, 2019), https://www.ag.state.mn.us/Office/Communications/2019/06/27_Census2020.asp. 424 Keith Ellison, Attorney General Ellison: ‘President Trump’s cruelty violates Minnesotans’ sense of decency,’ THE OFFICE OF MINNESOTA STATE ATTORNEY GENERAL KEITH ELLISON, (Jul. 12, 2019), https://www.ag.state.mn.us/Office/Communications/2019/07/12_ICERaids.asp. 425 Keith Ellison, Attorney General Ellison fights radical new Trump Administration rule that puts legal residents at risk of deportation, THE OFFICE OF MINNESOTA STATE ATTORNEY GENERAL KEITH ELLISON, (Aug. 22, 2019), https://www.ag.state.mn.us/Office/Communications/2019/08/22_ExpeditedRemoval.asp.

he warned that “illegal drugs and criminals are pouring into our neighborhoods, and now the federal government wants law enforcement to sit by and do nothing.”426 He has also suggested that vaccine mandates endanger the constitution, 427 threatened legal action against GoFundMe after its seizure of funds meant for the Ottawa Freedom Convoy made international headlines, 428 and accused the DOJ of “targeting concerned parents as if they were domestic terrorists”429 after a controversial memo was released that called for monitoring of anti-CRT protests at school board meetings. It appears that even the AGs of “purple” states are drifting towards the ideological poles. It is important to realize that these are all state AGs, making public declarations on high profile issues, including cases that have gone to the supreme court. Statements like these set the tone for other actors in the legal field. With such fierce rhetoric from AGs, it appears that increasing partisanship is a major factor driving the escalating legal battle between levels of government. This level of partisan conflict between state and federal governments has serious implications for the way the US legal system works. When the legal system is hijacked for partisan conflict and becomes a political tool rather than an impartial process, it does not stop setting precedents. This is especially true for the high-profile cases that state AGs involve themselves in. The result is negative externalities for the Americans who must live under an increasingly unstable and distorted legal system. These lawsuits have already begun to reshape the country’s laws. One prominent example of this is New York vs. U.S. Department of Commerce. In response to the Secretary of Commerce’s decision to put a question about citizenship status on the 2020 Census, New York and several other states joined together to fight the decision in federal district court. The district court ruled against including the question on the census. The case eventually made its way to the Supreme Court, which ruled against the administration, determining that the Secretary of Commerce’s “course of action was not supported by the evidence before him, and his stated rationale was pretextual.”430 The administration was forced to drop the citizenship question. Multistate litigation directly impacted the way that the 2020 census would be conducted, which in turn impacted the apportionment of seats in the House of Representatives, indirectly impacting the laws of the United States in ways that are impossible to fully account for. In the case of anti-sanctuary lawsuits, successful rulings have not even been necessary to cause significant change. As mentioned previously in this paper, the first years of the Trump administration saw a series of lawsuits by federal AG Sessions against states and localities that had declared themselves sanctuaries and refused to work with federal immigration authorities. These lawsuits largely failed to achieve their objective of ending the sanctuary status of these localities, blocked by the anti-commandeering and anti-coercion doctrines of the 10th

426 Dave Yost, Attorney General Yost Sues to Stop Restrictions on ICE, OHIO ATTORNEY GENERAL, (Nov. 18, 2021), https://www.ohioattorneygeneral.gov/Media/News-Releases/November-2021/Attorney-General-Yost-Suesto-Stop-Restrictions-on. 427 Dave Yost, AG Yost Statement on Supreme Court Ruling to Stay Vaccine Mandate, OHIO ATTORNEY GENERAL (Jan. 13, 2022), https://www.ohioattorneygeneral.gov/Media/News-Releases/January-2022/AG-YostStatement-on-Supreme-Court-Ruling-to-Stay. 428 Dave Yost, Ohio #FreedomConvoy Donors Encouraged to Contact Attorney General Yost, OHIO ATTORNEY GENERAL (Feb. 5, 2022), https://www.ohioattorneygeneral.gov/Media/News-Releases/February-2022/OhioFreedomConvoy-Donors-Encouraged-to-Contact-At. 429 Dave Yost, AG Yost Joins Lawsuit Seeking Records Involving Federal Intimidation of Parents, OHIO ATTORNEY GENERAL (Mar. 4, 2022), https://www.ohioattorneygeneral.gov/Media/News-Releases/March2022/AG-Yost-Joins-Lawsuit-Seeking-Records-Involving-Fe. 430 Department of Commerce v. New York, No. 18-966. 1, 21 (2019).

amendment.431 The failure of these lawsuits worked to reinforce the local autonomy afforded to states and localities in constitutional law, particularly regarding immigration policy. This shielded sanctuary states and sanctuary cities within states that were not opposed to their sanctuary status. However, it had the unexpected effect of simultaneously enabling anti-sanctuary states to crack down on sanctuary localities within their borders. Confident in the newly reinforced protections afforded to them by the 10th amendment, states such as Texas, Alabama, Indiana, Iowa, Mississippi, North Carolina, and Tennessee have passed laws forcing localities to cooperate with federal immigration enforcement.432 The same precedent pro-federalism precedent that empowered state crackdowns also means that “local anti-sanctuary laws are ripe for proliferation.”433 This example illustrates that the changes caused by precedent set in these lawsuits can be surprising and counterintuitive. Regardless of one’s opinion on sanctuary cities or the 2020 census, itisclear thatintergovernmental lawsuits can have a significant impact on the legal system. With so many of these lawsuits being launched from both poles of the political divide, one can expect frequent and difficult to predict changes to the legal landscape. These lawsuits will occur virtually every time one party feels that the actions of the other party are substantially threatening its agenda. In the current political climate, it is easy to imagine how frequently the desire to use the legal system arises. Political partisanship is also leading to litigation and legislation targeting businesses for political reasons, with profound implications for business law. Federal and multistate litigation against large corporations has been a phenomenon for a long time, carried out for perfectly benign reasons such as enforcing anti-trust laws and protecting consumers. However, in recent years, political motivations have come to the fore, with governmental litigators targeting businesses which they see as hostile to their party or their political agenda. One area where this phenomenon is especially prominent is in Big Tech. Large technology firms such as Apple, Microsoft, Amazon, Facebook (now renamed Meta), and Alphabet (the parent company of Google) have gained dominant places in the nation’s economy and information ecosystem. This growing influence, coupled with increasing polarization, has resulted in acrimonious political debates over how these companies should use their power. As the “open and free speech ideal” that defined the early internet is challenged by “a widespread if not universal emphasis among the major platforms on creating ‘healthy’ and ‘safe’ speech environments,”434 issues of content moderation or censorship have become especially contentious. Republican and Democratic politicians alike have faced mounting pressure from voters to take action against Big Tech companies, though for varying reasons. Many Progressive Democrats view the tech industry’s current behavior as dangerous “precisely because it is not more actively altering its product to serve the public good”435 by monitoring and removing hate speech or misinformation. There is a fear that if left unchecked, toxic online communication may undermine democratic norms. For Republicans, there is a concern that with a shift towards the management of the social media environment, “our nation will lose much of its freedom of thought, expression, and

431 Pratheepan Gulasekaram, Rick Su and Rose Cuison Villazor, Anti-Sanctuary and Immigration Localism, Vol 119, No. 3. COLUMBIA L.R. 1, 1 (2019). 432 Id. at 3-4. 433 Id. at 48. 434 Evelyn Douek, GOVERNING ONLINE SPEECH: FROM “POSTS-AS-TRUMPS” TO PROPORTIONALITY AND PROBABILITY, Vol. 121, No. 3. COLUMBIA L.R. 1, 6 (2021). 435 Adam J. White, Google.gov: Could an alliance between Google and government to filter facts be the looming progressive answer to “fake news”?, No. 55. THE NEW ATLANTIS 1, 32 (2018).

dissent. ”436 They view social media giants as politically liberal cartels that use concepts such as hate speech or misinformation as flimsy pretexts to censor their conservative ideological opponents. Though both parties pay lip service to anti-trust and privacy concerns and use these as legal justifications for litigation against Big Tech firms, it seems that this is often pretext, with political concerns as the primary driving force. Anyone who has paid attention to the media cycles of the last few years will have developed a perception of the growing legal backlash towards the tech industry. The facts confirm this perception. State AGs are launching aggressive investigations of Big Tech companies to collect information that will be useful for future litigation. On September 9, 2019, “attorneys general from fifty states and territories convened a dramatic press conference on the steps of the U.S. Supreme Court, to let it be known they were beginning a coordinated investigation into anticompetitive practices in Google’s digital advertising operations.”437 Federal AGs are also on the attack, with the Justice Department and House Judiciary Committee launching investigations into Google. 438 One can determine what is driving the lawsuits against these corporations by going directly to the human element. The statements of those advocating for such litigation are informative. On the right, one of the most prominent figures leading the charge against Big Tech is Senator Ted Cruz. The Senator has been vocal in his encouragement of litigation and legislation against social media giants. His statements focus on bias or censorship against conservatives, and outline a strategy based on targeting section 230. For context, Section 230 is a statue created in 1996 as part of the Communications Decency Act. The statute’s main effect is to grant social media companies that moderate speech on their platform broad immunity from litigation.439 This immunity is derived from subsection C of the statute, entitled “Protection for ‘Good Samaritan’ Blocking and Screening of Offensive Material,” which contains the following provisions:

(1) TREATMENT OF PUBLISHER OR SPEAKER.—No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) CIVIL LIABILITY.—No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in [subparagraph (A)].440

436 Alan M. Dershowitz, America’s New Censors, No. 19, HORIZONS: JOURNAL OF INTERNATIONAL RELATIONS AND SUSTAINABLE DEVELOPMENT 1, 1 (2021). 437 Max Fraser, Big Trouble for Big Tech, Vol 29. Issue 1. CUNY SCHOOL OF LABOR AND URBAN STUDIES (2019).

438 Id. 439Valerie Brannon and Eric Holmes, Section 230: An Overview, CONGRESSIONAL RESEARCH SERVICE (Apr. 7, 2021), 4. https://crsreports.congress.gov/product/pdf/R/R46751. 440 Id. at 5.

In practice, these provisions give large technology firms the ability to control access to content as if they were a publisher, but prevent them from being held responsible for objectionable usercreated content as a publisher would.441 Many Republicans, including the aforementioned Senator Cruz, wish to alter or repeal section 230 because they worry that it gives Big Tech firms the ability to censor disfavored viewpoints in the online public square. Cruz’s public statements reflect exactly this concern:

During an April 2019 Congressional committee hearing titled “Stifling Free Speech: Technological Censorship and the Public Discourse,” Senator Ted Cruz (R-TX) blamed Section 230 for allowing social media companies to be biased against conservatives, with “a special immunity from liability … that nobody else enjoys other than Big Tech.”442

Senator Cruz’s views on the issue are also held by prominent colleagues in the party. Senator Marsha Blackburn, a Republican from Tennessee, has encouraged similar action against Tech companies.443 Even higher profile Republicans have echoed the claim that Big Tech is a political enemy that censors conservatives. For example, following his Twitter ban in the wake of January 6th, former President Donald Trump announced several section 230-oriented444 lawsuits against social media firms and their CEOs. At a press conference, he described the move as a defense of the first amendment rights of himself and others, promised that he was “going to hold big tech very accountable,” and warned that “if they can do it to me, they can do it to anyone.”445 These statements come from prominent figures within the Republican party. Cruz is a senator from the influential Republican state of Texas and a onetime presidential nominee. His views on Big Tech reach a large portion of Republican voters due to his frequent statements at publicized events such as the abovementioned congressional hearing. Anyone who has lived in the United States for the last several years knows the loyalty commanded by former President Trump. He has millions of eager supporters, and members of the GOP still venture to his Florida residence to compete for his endorsement. Just as the statements of high-profile AGs previously examined in the paper indicated the general sentiment among AGs, statements by high-profile politicians in the Republican party indicate the general sentiment among Republicans. Most politicians tend to conform to the stances that prevail within their party, and those who do not conform are often punished by their colleagues or their voters. Politicians are especially likely to emulate the positions of the most influential members of their party. As such, the stance shared by people as important as Trump and Cruz— political hostility towards companies which they perceive as ideological enemies— is a significant indicator of the way the Republican Party will behave. With these partisan statements occurring at the same time as the increase in litigation, it is clear that political grudges are a major factor motivating legal action. The Democrats are a left-leaning party, and have a long history of skepticism towards large corporations. As such, there is a degree to which their litigation against tech giants is driven by

441 Id. at 6. 442 Benjamin W. Cramer, From Liability to Accountability: The Ethics of Citing Section 230 to Avoid the Obligations of Running a Social Media Platform, Vol. 10. JOURNAL OF INFORMATION POLICY 123, 123-150 (2020).

443 Id. 444 Bernie Kohn, Trump’s Revenge Lawsuit Against Big Tech: Explained, BLOOMBERG LAW, Jul. 7, 2021.

445 Id.

traditional anti-trust and consumer protection concerns rather than by the sense that these companies are direct political enemies of the party. However, their conduct in this area is still influenced by partisanship. As previously mentioned, there is a growing sense among many in the Democratic party that Big Tech companies are not doing enough to combat certain kinds of political communication on their platforms, particularly those classed as hate speech and misinformation. On its official website, the party recommends that major platforms “establish a political misinformation policy”446 and “enforce rules on hate speech consistently and comprehensively.”447 Most of the major Democratic presidential nominees in the runup to the 2020 election took strong stances against totally unregulated speech on social media platforms. 448 Senator Bernie Sanders promised to “ensure that these large, profitable corporations are held responsible when dangerous activity occurs on their watch, while protecting the fundamental right of free speech in this country and making sure right-wing groups don’t abuse regulation to advance their agenda.”449 Meanwhile, Senator Elizabeth Warren stated that “I condemn hate speech, and I believe we should be able to hold people accountable for their words.”450 Then-Mayor Pete Buttigieg made it clear that if elected, his administration would “identify online platforms and other companies that refuse to take steps to curb use by hate groups.”451 Andrew Yang highlighted the need to “combat the rise of misinformation and hate speech.”452 The current Democratic President, Joe Biden, has been vocal about the need to control misinformation, warning social media companies and conventional media outlets that “it has to stop.”453 These are of course highly sensitive topics, due in part to a highly polarized political environment that makes it difficult for people of opposing parties to even agree on what is false or hateful much of the time. Regardless of one’s personal opinion of content moderation on social media platforms, it is clear that growing partisan polarization has contributed to the perception that certain ideas are too dangerous to leave unchecked on social media (and the rise of these ideas themselves), as well as the resulting attempts to compel corporations to more actively regulate the conversation on their platforms. As such, it appears that the Democratic party’s litigation and legislation in this area may also be partially motivated by the growing partisan divide. Interestingly, there is some disagreement between political factions over what effect repealing section 230 will even have. The actions recommended by major figures such as Senator Cruz might be based on seriously flawed assumptions. Some critics of Section 230, unaware that it allows moderation of user-generated content, mistakenly criticize the provision for allowing Internet services to avoid all types of responsibility. The provision has often been misinterpreted as requiring neutral content in return for immunity; and that Internet firms purportedly violate the law, or hide behind it, when hosting “biased” content, taking that content down, or not taking it

446 DNC RECOMMENDATIONS FOR COMBATING ONLINE DISINFORMATION, DEMOCRATS.ORG, https://democrats.org/who-we-are/what-we-do/disinfo/comparative-social-media-policy-analysis/.

447 Id. 448 Rani Molla and Emily Stewart, Should social media companies be legally responsible for misinformation and hate speech? 2020 Democrats weigh in, VOX (Dec. 5, 2019), https://www.vox.com/policy-andpolitics/2019/12/3/20965459/tech-2020-candidate-policies-section230-facebook-misinformation-hate-speech.

449 Id. 450 Id. 451 Id. 452 Id. 453 Jackson Richman, Biden Makes Plea to Media Outlets, Social Media to ‘Deal With the Misinformation, ’ MEDIAITE (Jan. 13, 2022, 11:56 am), https://www.mediaite.com/tv/biden-makes-plea-to-media-outlets-socialmedia-to-deal-with-the-misinformation-it-has-to-stop/.

down.454 That prominent officials hold such belligerent attitudes towards Big Tech— despite the inability of the parties involved to even agree on the effects of overturning major legal doctrines— is only further proof that partisan rivalry is driving much of this legal effort, rather than some wellreasoned plan to solve the serious problems surrounding the American tech industry. The partisan fervor over the Big Tech issue will impact United States business law in major and unintended ways. Many of the lawsuits against major tech companies are ongoing, and with growing pressure from voters and politicians, it is sure that both AGs and non-governmental attorneys will add to the current list. As such it is very difficult to predict what the exact results will be at this point in time. What is certainat this early point in timeis that these lawsuits represent an inflection point for anti-trust doctrine, privacy rights, and the way that speech is dealt with on social media. With so many legal battles looming over relatively uncharted territory, there is a high likelihood that at least a few of them will set new standards for what counts as anticompetitive behavior in the tech industry, place new limits on the collection of user data, or significantly alter the current interpretation of section 230, leading to a substantial increase or decrease in the power tech companies exercise over the speech of their users. It is extremely concerning that these critical legal issues are being examined in an environment where political gain is given as much weight as the public good. The most striking example of partisan litigation is the war of attorneys that erupted in the wake of the 2020 election. After a closely fought contest in which Democratic candidate Joe Biden secured 51.3% of the vote, incumbent President Donald Trump refused to concede, alleging voter fraud. The result was a campaign of legal total warfare that lasted from the day following the election to the events of January 6th . The incumbent President launched a barrage of lawsuits against the states where he had alleged fraud, with the aim of getting enough votes thrown out to reverse the outcome. As a direct example of a President using the legal system as a tool to prevent the transfer of the Presidency to a rival of the opposite party, it goes without saying that this is the ultimate example of partisan lawfare. Then-President Trump’s legal campaign was carried out on a completely unprecedented scale. Though there has been a trend of increasing election litigation rates for a while now, the contest over the 2020 election resulted in an even more shocking increase:

Election litigation has been increasing steadily over the last few decades. Cases in the sample averaged 94 per year in the 1996–1999 period, compared to over 276 cases in the post-2000 period. More than that, records continue to be broken: two of the last three years of data, 2018 and 2020, each set records. The year 2020 marked the first time that rates exceeded 400 cases in a single year.455

The 2020 election saw an increase in election litigation rates of 26% relative to 2016, the previous presidential election year.456 Trump was not solely responsible for this increase; the year also saw an increase in election litigation due to disputes over changes in voting procedure intended to accommodate the circumstances created by the COVID-19 pandemic,457 and this surely explains

454 Benjamin W. Cramer, From Liability to Accountability: The Ethics of Citing Section 230 to Avoid the Obligations of Running a Social Media Platform, Vol. 10. JOURNAL OF INFORMATION POLICY 123, 123-150 (2020). 455 Richard L Hasen, Research Note: Record Election Litigation Rates in the 2020 Election: An Aberration or a Sign of Things to Come?, ELECTION LAW JOURNAL: RULES, POLITICS, AND POLICY (2022).

456 Id. 457 Id.

some of the change. However, his legal campaign was still a major factor, as it surpassed even the scale of the litigation campaign surrounding the disputed 2000 election.458 The drastic increase in election litigation spending by each of the parties in 2020 relative to that in other years is a good indication of the amount of effort expended in the legal conflict between Trump and those who sought to halt his challenge to the election:

Between 2003 and 2015, political parties' legal expenditures—measured by examining the Democratic and Republican national committees and their congressional and senate entities—hovered around $5 million per year. That figure dipped to just below $3 million in 2008 but surpassed $7.5 million in 2012, but it remained fairly steady between 2003 and 2015. In 2016, however, legal expenses shot up to over $15 million in expenditures, more than double the 2012 total. In 2017, the total dipped to just under $10 million. In 2018, it rose again to nearly $24 million, went up again in 2019 to $28 million, and surpassed an astonishing $66 million in 2020.459

The amount of spending in 2020 had more than doubled in 2020 relative to 2019, and was more than four times the amount of spending in the previous presidential election year. It is clear that 2020 saw a uniquely massive partisan weaponization of the legal process against the outcome of a presidential election. But what form did that campaign take? Trump focused his litigation on the critical battleground states where the margin of defeat had been slim. His legal team was sent out to file multiple lawsuits in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin.460 These lawsuits were premised on the existence of voter fraud, and sought to stop suspicious votes from being counted.461 With slim margins in the battleground states, a high success rate in litigation could have translated into a completely overturned election result. However, of the more than 60 suits Trump had launched for this purpose- some of which went to the supreme court- none were able to convince judges that voter fraud had occurred, or that any votes should be removed from the count.

462 In Commonwealth of Pennsylvania v. Ashley Regina Mowery, for example, the campaign’s lawyers argued that ballots which had been signed by an eligible voter but did not have a printed name, address, or date should not be counted because they did not perfectly meet the requirements enumerated in Pennsylvania state law. The court ultimately ruled that these printed details were not mandatory, citing previous rulings where it had been decided that technicalities should not be used to make the right to vote less secure.463 In Donald J. Trump for President, Inc. v. Benson, the President’s lawyers alleged that election observers had been prevented from observing the counting of absentee ballots or viewing video surveillance of ballot drop boxes, in violation of Michigan state law. A poll worker also submitted an affidavit alleging that another poll worker had told her that still other poll workers had been telling ballot counters to interfere with ‘date

458 Id. 459 Id. 460 Joshua Ulan Galperin, Legitimacy, Legality, Legacy, and the Life of Democracy, 45 VERMONT L.R. 563, 565 (2020-2021).

461 Id. 462 James P. Pfiffner, The Violent Transition of the Presidency, 2020-2021, SCHAR SCHOOL OF POLICY AND GOVERNMENT 1, 6-7 (2021). 463 David F. Levi, Amelia Ashton Thorn, and John Macy, 2020 Election Litigation: The Courts Held, 105 JUDICATURE 8, 9 (2021).

received’ sections of absentee ballots. Trump’s lawyers argued that this was illegal conduct and necessitated an injunction on the counting of absentee ballots. Ultimately, the court rejected the suit on the basis that the Secretary of State was not the proper defendant, that Michigan state law did not require poll election observers to be given access to video surveillance of drop boxes, and finally that the poll watcher’s story was overly reliant on hearsay and did not constitute evidence of illegal conduct.464 In Trump v. Wisconsin Election Commission, the President’s lawyersargued that municipal officials in Wisconsin had taken advantage of the decentralized election system of the state to alter election procedure to such an extent that it violated the Electors Clause of the US Constitution- which specifies that the state legislature should determine the manner in which the state’s electors are selected. As such, Wisconsin’s election results had to be decertified.465 The Court ruled against the President because he had brought the suit after the results had been certified,466 and also because the broad autonomy of municipal officials had been granted to them by decision of the state legislature, making it perfectly in accord with the Electors Clause.467 All of the other suits proceeded in a similar manner. The incumbent President’s legal war ended with a dramatic Hail Mary in the form of Texas v. Pennsylvania. The suit was filed by the state of Texas, later joined by Trump and 17 other state AGs. In it, the Texas AG made a highly unusual argument, attempting to convince the Supreme Court that the voting procedures of Wisconsin, Georgia, Michigan, and Pennsylvania were flawed, and that counting such flawed results harmed the state of Texas.468 The suit soon garnered more support within the party: “Initially, 106 House members had signed an amicus brief supporting the lawsuit, and after threats by Rep. Mike Johnson (R-LA) that President Trump would retaliate against those who did not sign on, 20 more Republicans, including Minority Leader Kevin McCarthy, signed up to support the suit.”469 The coalition of backers that the suit attracted was surprisingly large, and indicated the sheer strength of partisan feeling animating the litigation that followed the 2020 election. Partisanship had reached such a level of intensity that even seventeen recently reelected members of congress had signed onto the suit, effectively questioning the validity of their own election victories.470 Ultimately, the Supreme Court rejected Texas v. Pennsylvania on the basis that the state of Texas “had not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections. ”471 In other words, they lacked the standing to sue. Though the President’s legal efforts to overturn the results of the election were ultimately unsuccessful, they have significantly affected election law going forward. Some of the precedents set will discourage similar behavior in the future. The failure of Texas v. Pennsylvania will reduce the likelihood of states suing other states for their internal election rules, as it has now been clearly established that they would lack the standing to sue. The case of Commonwealth of Pennsylvania v. Ashley Regina Mowery has reinforced existing doctrine that favors the right to vote over observance of technicalities. The legal battle of 2020 has had other impacts on election law: as a

464 Id. at 11. 465 Id. at 12. 466 Id. at 12. 467 Trump v. Wisconsin Election Commission, No. 20-cv-1785-BHL, 1, 22 (2020). 468 James P. Pfiffner, The Violent Transition of the Presidency, 2020-2021, SCHAR SCHOOL OF POLICY AND GOVERNMENT 1, 7 (2021).

469 Id. 470 Id. 471 Id.

result of the doubts it raised about the election process, many states are enacting far stricter voter registration and election security laws. Ultimately, the most significant impact of the events following the 2020 election is simply the attention that has been brought to the possibility of weaponizing the legal system against the electoral system. Trump’s suits largely failed to alter the outcome of the election due to sloppy execution. As the previous examples demonstrate, many of the suits were rejected in part due to the naming of improper defendants, late filing, or a lack of standing to sue. With more careful formulation, it may well have been possible for the incumbent President to disqualify enough votes to overturn the result. Under normal circumstances, winning an election in court is a longshot. However, years or decades from now, a future president facing a similarly narrow defeat will surely have the actions of the 45th President in mind. If this hypothetical president is motivated to win at all costs- which may be the case if polarization does not decrease- Trump’s campaign of litigation will likely be an appealing precedent to draw from. One can only imagine what might happen if this hypothetical future President was a subtle, calculating sort, and decided to wage a legal campaign before the election had occurred rather than after, with the goal of tailoring election laws in his favor. The rise of partisan lawfare presents a significant threat to the US legal system on several fronts. Legal battles between states and the federal government threaten to redefine federalism in an unpredictable way, as precedent is increasingly created as a byproduct of partisan struggles rather than being carefully argued into existence in reasoned legal disputes. Partisanship has become a driving force in the generation of new lawsuits against Big Tech, threatening to derail urgently needed regulatory reform and benefit one of the major parties at the expense of the average social media user. Issues over privacy rights, online speech, and market concentration will decidedby litigators who have turned their attention away from the public good in favor ofpolitical expediency. The legal campaign following the 2020 election, while ultimately unable to change the result, damaged the credibility of the government for a large section of the population. It also imbedded the idea of winning an election in court into America’s political consciousness. There is always the risk that someone will pick up and fire the loaded gun left on the floor after that campaign, only this time with sharper aim. Unless something is done about the rapid escalation of lawfare, Americans will be forced to live under an increasingly arbitrary and dysfunctional legal system.

Letter From the President

As the Founder and President of the Chapman University Undergraduate Law Review, it is a privilege and an honor to present our first completed volume. This journal was born during the most unprecedented of times, and it is with pride that I confidently say this journal has succeeded, nonetheless. Our greatest achievement thus far has been the establishment of a cohort of individuals devoted to the advancement of undergraduate pre-law education, and a tangible method to execute this goal. I have great joy in not only being a peer to these students, but a leader.

My role as Founder and President has been the most difficult and most rewarding year I have had yet. The dedication to this organization has carried me through the countless roadblocks and tribulations faced through the establishment of the Chapman University Undergraduate Law Review. The 2021-2022 team working on this publication has been invaluable in bringing each vision to life.

Involvement in this organization as an undergraduate student is a unique exposure to legal research, citation, and analysis. This has been brought to each of our writers, editors, and executive board members throughout the process of creating this journal. I am entirely pleased with what our work this year has produced, and have full confidence that the 2022-2023 team will be just as prosperous.

I thank you for reading and supporting our first volume, and encourage you to join us again next year.

Sincerely,

Alexis Reekie Founder & President of the Chapman University Undergraduate Law Review