Court Ruling Hobbles Trump DOJ’s Jihad Against Elusive Threat of Noncitizen Voting

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.

Judge Strikes Down Federal Ban on Noncitizen Voting

In a potentially very important ruling last week, a federal judge in south Florida concluded that the Trump administration’s effort to prosecute noncitizen voting relies on a 40-year-old federal statute that is unconstitutional.

In dismissing the prosecution of a Jamaican national for illegally voting in the 2020 election, U.S. District Judge David Leibowitz (a Biden appointee) found 18 U.S.C. § 611, which outlaws voting by noncitizens in federal elections, to be a “voter qualification statute.” As such, Congress intruded on the power of the states to determine voter qualifications by passing the law outlawing noncitizen voting.

“[T]he Constitution does not authorize Congress to legislate voter qualifications for federal elections,” Leibowitz ruled. “Congress has no power to say who can vote or who cannot vote in federal elections—that foundational power is reserved for the States, and limits Congress.”

As Politico’s Kyle Cheney notes, the statute that Judge Leibowitz invalidated underpins several Trump administration noncitizen-voting prosecutions that it ramped up ahead of the midterm elections:

Yet in dozens of other recent cases, announced with great fanfare by the Justice Department — often accompanied by photographs of people being arrested by Homeland Security agents — the administration is hanging its illegal voting crackdown on this very statute. Many are slated for trial in December and January.

Judge Leibowitz was the first judge to ever rule on the constitutionality of the statute. To help reach his decision, Judge Leibowitz had appointed Supreme Court litigator Paul Clement as a friend of the court to advise him on the constitutionality of Congress enacting the 18 U.S.C. § 61.

Given the paucity of noncitizen voting, the broader import of Judge Leibowitz’s ruling is that it undermines the Trump propaganda machine’s focus on noncitizen voting as a catch-all Big Lie that seeks to justify the federal takeover of elections, the imposition of new restrictions on voting, especially mail-in voting, and the delegitimization of elections generally.

Mass Deportation Watch

• ProPublica: More than 500 U.S. citizens have been caught up in the Trump administration’s mass deportation dragnet.
• TPM’s Hunter Walker: An ICE challenge coin for sale on eBay is emblazoned with the slogan: “There is no hunting like the hunting of man.” It’s not clear whether the coin was officially issued by ICE.

Quote of the Day

“… if Abdul can win in Michigan, anybody can win anywhere. Anywhere.”—Rep. Alexandria Ocasio-Cortez (D-NY), in a closed-door fundraiser, on the progressive movement’s “generational” chance to “break the map” of American politics

Will Dems Pull a McConnell on SCOTUS?

Some Senate Democrats are threatening not to confirm any Trump nominees to the Supreme Court for the rest of his term — if they win the Senate majority next month.

Good Read

Jay Willis at Balls & Strikes: The Conservative Takeover of SCOTUSblog Is Just What the Supreme Court Needed

Trump DOJ Watch

• U.S. Attorney Scheme: The 9th Circuit Court of Appeals quickly scheduled oral arguments for Oct. 23 on whether the president can fire court-appointed U.S. attorneys — a part of his scheme to install loyalists as the top federal prosecutors in blue states. The appeal by the Trump administration comes in the case of Roger Rogoff, the court-appointed U.S. attorney in Seattle, whose firing was ruled unlawful by a federal judge from outside the district. In related news, Rogoff has agreed to staying the lower court order and to not taking office while the appeal is pending.
• Jack Smith Report: President Trump and his former co-defendants in the Mar-a-Lago documents case are asking the 11th Circuit Court of Appeals to delay oral arguments on whether Judge Aileen Cannon’s order permanently sealing Volume II of Special Counsel Jack Smith’s report should be overturned. In the new filing, attorneys say they need the delay because of scheduling conflicts and because they need time to confer with President Trump. The oral arguments had been rescheduled multiple times over the past several months, most recently for January, but then last week was abruptly moved up to Nov. 2, the day before the midterm elections.

Trump Nixes Politico From Press Pool

The Trump White House barred Politico from boarding Air Force One for a Monday trip to Nebraska, which prevented it from serving in the presidential press pool. The White House similarly retaliated against CNN over the weekend. Along with MS NOW, Politico and CNN previously went to court to overturn a Trump ban on the three outlets from accessing the White House.

Trump Claims He’ll Pay for Pro-Trump Ads

In an apparent reversal, President Trump posted on social media that he and his PAC will pay for the series of four pro-Trump TV ads being aired during the stretch run of midterm election and originally paid for by the federal government.

More than $10 million in taxpayer-funded ads have run since September under a $20 million DHS contract, according to the New York Times.

“It was unclear if the PAC would repay the U.S. government for the money already spent or just pay for ads going forward,” the WSJ reported.

US Feared Drone Attack on Bombers in UK

The abrupt retreat of a dozen B-1 bombers from RAF Fairford to their home base in the U.S. came in response to intel that Iran was planning a sophisticated drone attack on the planes and their crews.

On Guard on NATO’s Eastern Flank

Politico: Lithuanian PM calls for NATO plan to counter Russia’s hybrid attacks

The Global March of the Far Right

• Brazil: In once again elevating the Bolsonaro clan in Sunday’s election, Brazil gave the far right its most decisive victory since the country’s military dictatorship ended in 1985, Harvard’s Elizabeth McKenna writes.
• Germany: Tobias Rausch of the Alternative for Germany party was elected as president of the parliament in Saxony-Anhalt, the first time since the Nazi era that a far-right politician was elected to lead a state legislature.

The Televangelist Origins of Donald Trump

The death of disgraced (is there any other kind?) televangelist Jim Bakker at age 86 lets us dip back in for a moment to the gaudy nouveau riche aesthetics of the mid-1980s out of which came endless TV preacher scandals and ultimately the public persona of Donald Trump.

I used to think that the Trump aesthetic mirrored the Jim Bakkers and the Jimmy Swaggarts because they all peaked in the 1980s, which happened to coincide with the glory days of high-glam primetime soaps, which set an unfortunate standard for opulence. But I’ve come to see Trump as a secular televangelist preaching his own version of the prosperity gospel to the same marks susceptible to the same grift that powered the fleeting televangelical fortunes.

Trump’s grift has been bigger and bolder, managing somehow not to have his own soul saved and or to heed a call to follow Jesus, yet being fully embraced by evangelical ministers, often literally in performative Oval Office prayer sessions. Grift knows grift.

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