Ask Us Anything
Presidential immunity, boycotts, the midterm election process, and ranked choice voting
From this week’s inbox:
Does the Supreme Court ruling that grants immunity to presidents have any limits? Can Trump shoot and kill James Comey and be immune? Is there any way to set limits on his immunity through the courts again?
(Matt) There are limits, which are open to interpretation by the courts. The essence of the Supreme Court decision is that presidents have absolute immunity for their core official acts and are granted the presumption of immunity for more peripheral official acts. The Court did not grant immunity for unofficial acts, which would include murdering a political opponent. It’s possible for the courts to limit this grant of immunity through subsequent interpretation of what constitutes an official act. The ruling could also be reversed by constitutional amendment (not a likely possibility at the moment), or by a future Supreme Court inclined to reverse all or part of the ruling in Trump v. United States. This is one reason why Supreme Court reform should be a key element of a post-Trump reform agenda.
I watched an interview by Wajahat Ali with Ezra Levin about what else we can do post-protest and they talked about the power of boycotts. One suggestion is boycotting Spotify, because they air ads on their fee-free version looking to recruit people to work for ICE. So my question is, what other companies would you recommend us to boycott?
(Chris) Spending your money in accordance with your values is one of the most powerful actions anyone can take. My personal experiences and sense of fairness have led me toward spending money positively in support of causes and companies that share my values, rather than withholding it from those who do not.
My reason for this goes back to running something called the Liberal Blog Advertising Network way back in 2005-2008. This was an advertising network that I ran to try and get more ads to run on progressive blogs. A lot of bloggers wanted in, so I needed a clear, public and fair list of criteria about who I would include. Even then, there were always edge cases that complicated this decision-making, and I often caught flak, both in public and in private, for the choices I made.
Let me explain how this connects to boycotts over values. Say that you boycott Spotify because they run ads for ICE. Are you also going to boycott any other media company that runs ads for ICE? Honestly, that would seem only fair to me—why are you boycotting some media companies but not others? How do you even go about checking which media companies run ads for ICE, and which do not?
Further, consider why you are boycotting companies that run ads for ICE. What broader principle is at stake? Are you boycotting any company that does business with the Trump administration? Or is it that you are boycotting any media company that runs any ad that you believe causes public harm?
I think it is important to be fair with boycotts, and unfortunately it is kind of impossible to be fair because of the amount of information required. Many years ago, I met an activist who had started a list of companies that supported Democrats and progressive values. It was called “Buy Blue,” or something similar. When I met her, I told her I thought her work was great. Her response was something like “Really? Then do you want to take over running the list? I find managing it impossible so I’m giving up.” After I ran the Liberal Blog Advertising Network for a few years, I realized why she thought that. Anyway, that’s why I try to spend my money positively, rather than withholding it in boycotts.
If all the Democratic Representatives showed up at the Capitol, could they just declare that they are “in session” and conduct business? Could they swear in Arizona’s newest representative? I know the Republicans would scream it was illegal, but they also say nothing about the many illegal acts they and the administration are regularly engaged in. In any case, such actions by the Democrats might finally force Johnson et al. to do something rather than continuing with their paid vacations.
(Matt) If only things could work this way! Democrats might get some attention if they sat on the Capitol steps and declared Congress in session, but it would only be a publicity stunt. You need a majority to control the House calendar, and that gives Republicans the authority to decide when to recess and when to gavel in. It also gives Johnson the sole authority to swear in Rep-elect Adelita Grijalva—who was elected a month ago and has not been sworn in because Johnson refuses to convene the House. Public pressure is the most effective way to get Johnson to install Arizona’s newest member of Congress and negotiate with Democrats to re-open the government. Sending email and making phone calls to your representative keeps the pressure on.
I’m curious to hear about the midterm election process. Are there parts of the process where the president has to ratify elected officials in the House and the Senate? Are there cracks in the system where Trump and Vance can just refuse to do what they’re supposed to do? It seems like this is the same moment we were in at the end of his last term when he just refused to—but ultimately did—leave. What are the tools in their toolbox if their plan is to just nullify a blue wave?
(Chris) The good news is that the federal Executive Branch plays no role in the ratification of midterm elections. The final arbiter of elections for the House of Representatives is the House of Representatives, and there is easily a majority in the House to seat the free and fair winners of those elections. The same goes for the Senate.
Democrats also control a preponderance of governorships, attorneys general and secretaries of state—not only in blue states, but in most purple states, too. Even in Republican-controlled states like Georgia, local Republicans rather famously stood up to Trump’s efforts to overturn the results of the 2020 election, and even survived primary challenges when they did.
I think we are good for 2026, at least when it comes to overturning the election results. My bigger worries right now are excessive gerrymandering in 2026, and what happens in the 2028 presidential election if Trump’s chosen successor is defeated at the polls.
Lots of educated people I know are convinced that in ranked choice voting, there must be some harm to your first choice candidate if you rank other candidates AND that you can undermine those you don’t want by not ranking them. So, in ranked choice voting, are there any advantages to only ranking one preferred candidate or not ranking candidates you don’t like?
(Matt) Ranked choice voting can be confusing when you’re used to just casting a vote for one candidate. You can find a good overview of how it works here. In elections with a single winner (which is most elections in this country), ranked choice can be used to select a winner who was preferred by a majority of voters while eliminating the power of spoiler candidates. If no candidate achieves a clear majority, the candidate with the lowest number of votes is eliminated and their second-choice votes are distributed to the remaining candidates. So you can rank alternatives without harming your preferred candidate. If your candidate wasn’t eliminated, they stand to benefit from the second-choice preferences of the candidate that was. And if your candidate was eliminated, your second-choice preferences can help shape the eventual outcome. If you only rank one candidate, you won’t be able to influence that decision.
Because changing rules can change results, using ranked choice instead of simple plurality voting can make a difference in close elections where more than two candidates are running. Consider the 2000 presidential election in Florida, where the decisive electoral votes came down to a microscopic popular vote margin between George W. Bush and Al Gore. Bush was deemed the winner with 48.847% of the vote, to Gore’s 48.838%. But neither candidate received a majority, in large part because consumer advocate Ralph Nader’s Green Party candidacy attracted 1.64% of the vote.
The Gore campaign was aware of the spoiler potential of Nader’s candidacy, as were some Nader voters who didn’t particularly like either of the major party candidates but preferred Gore to Bush. There was even an online effort to pair Nader voters in swing states like Florida with Gore voters in noncompetitive states, so they could swap their votes to allow Nader to be represented without kicking the election to Bush.
Ranked choice voting would eliminate the need for complex (and ultimately unsuccessful) maneuvers like this. If Nader voters had the option to rank Gore second, it could have tipped the election his way when their votes were redistributed. And even the Supreme Court couldn’t have done anything about it.