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Happy Monday! Dominion Voting Systems is suing Rudy Giuliani for $1.3 billion.

As Akiva notes, the legal question is going to boil down to something known as "actual malice."

That's a tricky concept for nonlawyers (and often for lawyers) so an explainer might help.


What I'm going to do with this thread is a bit different from normal - I'm going to start by explaining the underlying law so that you can see why lawyers are a little skeptical of the odds of success, and only look at the complaint after that.

So let's start with the most basic basics:
If you want to win a defamation case, you have to prove:
(1) that defendant made a false and defamatory statement about you;
(2) to a third party without privilege;
(3) with the required degree of fault;
(4) causing you to suffer damage.

For Dominion's defamation cases, proving 1 and 4 is easy. 2 is, in the case of the lawyers they're suing, slightly more complex but not hard. And 3 - degree of fault - is really really hard to prove.

A false statement of fact that is defamatory is a slam dunk element here - all the fraud allegations against dominion are totally banana-pants. They are also allegations which are clearly going to harm Dominion's reputation.
This idea - that elections should translate into policy - is not wrong at all. But political science can help explain why it's not working this way. There are three main explanations: 1. mandates are constructed, not automatic, 2. party asymmetry, 3. partisan conpetition 1/


First, party/policy mandates from elections are far from self-executing in our system. Work on mandates from Dahl to Ellis and Kirk on the history of the mandate to mine on its role in post-Nixon politics, to Peterson Grossback and Stimson all emphasize that this link is... 2/

Created deliberately and isn't always persuasive. Others have to convinced that the election meant a particular thing for it to work in a legislative context. I theorized in the immediate period of after the 2020 election that this was part of why Repubs signed on to ...3/

Trump's demonstrably false fraud nonsense - it derailed an emerging mandate news cycle. Winners of elections get what they get - institutional control - but can't expect much beyond that unless the perception of an election mandate takes hold. And it didn't. 4/

Let's turn to the legislation element of this. There's just an asymmetry in terms of passing a relief bill. Republicans are presumably less motivated to get some kind of deal passed. Democrats are more likely to want to do *something.* 5/
IMO, the #SAFEAct is better on election security than HR1 bc it wld ban most touchscreen voting machines currently available. HR1 wld allow them as a primary in person system bc vendors call the paper they spit out a “paper ballot.” Pen & paper is safer #HandMarkedPaperBallots 1/


I have not looked at other aspects of HR1. It addresses more than election security. The #SAFEAct shld be the starting point for election security reform in my opinion. 2/

HR1 requires that all voters have the option to mark their ballots by hand. But it does not specify that, for jurisdictions with in person voting, the hand marked (pen & paper) option must be available for in person voting (vs it only being an option w/ vote by mail). 3/

HR1 may still be a good start. But it does not go nearly far enough on election security. Here are my suggestions for election security. Maybe these could be addressed in a later bill, but we shld keep them on our radar. 4/ https://t.co/mNdHrvwHcN


The key section is 1502. IMO, it shld add the following. “For jurisdictions that offer in person voting, the option to mark a paper ballot by hand must be offered at the in-person polling location; giving this option only for vote by mail won’t suffice for such jurisdictions.” 5/