When You Think About It, It Really Sucks

From Christian Cooper for The Washington Post way back in January:

Imagine if a country today took a plurality-Black  population, stripped those citizens of any meaningful political power, and relegated them to the whims of a few privileged Whites who ruled in comfort and majesty.

Welcome to Washington, D.C. How did our nation’s capital earn this disgraceful distinction? Throughout the latter half of the 20th century, African Americans constituted a majority of the residents of the District of Columbia. Today, about 45 percent of D.C.’s population is Black, still the city’s single largest racial group. But the people of D.C. do not have voting representation in the House of Representatives or the Senate — despite paying the same federal taxes as the rest of the country.

To make matters worse, D.C. residents have only limited control of affairs within their own borders; the city’s budget and every law the city council passes are subject to approval by Congress. So a collection of outsiders — mostly White men of privilege from somewhere else — dictate to the people of D.C., who are mostly non-White, how things are going to be.

Black disenfranchisement wasn’t the goal from D.C.’s start; rather, it resulted from the confluence of population growth, demographic shifts and the Framers’ quest for neutrality at the center of government. That this situation arises as an unintended consequence makes it no less intolerable.

Yet it has been tolerated, for decades, the insult to Black dignity and self-determination shrugged off, revealing the racial bias at the core of its continued existence. It is part of a long history of African American disenfranchisement, as old as the United States, whose Constitution counted our enslaved ancestors as three-fifths of a person. It echoes the nearly century-long denial of voting rights to Black people, followed by the suppression of the Black vote on through the civil rights era, to today’s renaissance of Black voter suppression, masterfully recast as efforts to combat nonexistent “voter fraud.”

It continues because some look at our right to have a say in our own destiny and still see us as only three-fifths human.

D.C.’s political limbo is all the more infuriating because ending this injustice would be relatively easy. Shrinking the federal enclave to a much smaller, nonresidential area of monuments and key buildings and granting the rest of D.C. statehood would give the people of the District the home rule and full representation in Congress every American deserves.

With some 700,000 residents, D.C. as a state would be more populous than two of the other 50 states. There is no defensible reason that sparsely populated, overwhelmingly White Wyoming (pop. approx. 580,000) and Vermont (approx. 625,000) should each have two senators while mostly non-White D.C. gets none.

Republicans respond by saying that, since any senators from D.C. would likely be Democrats, granting statehood to the District is nothing more than an unfair political power grab. Here’s what’s truly unfair: Our Constitution grants every state two senators regardless of its population. That may have been fine in 1789, when barely a dozen states existed and differences between rural and urban areas were not so pronounced.

But it has become absurd with the passage of 230 years. North Dakota and South Dakota, with a combined, nearly all-White citizenry of about 1,650,000, are represented by four senators, all Republican; California, with a diverse population of about 40 million, is represented in the Senate by two Democrats. It is Republicans who have pulled off the power grab.

But it should not matter whether senators from a new state of D.C. would be blue, red or Day-Glo green: Nobody gets to deny any Americans their rightful votes just because they don’t like who those Americans vote for. . . . 

The House voted last year to make D.C. a state. The Senate has never taken a vote on the question. As of Jan. 20, Senate Democrats can take the next step. It requires only that they close ranks to scrap the filibuster, either in its entirety or more surgically, to advance this cause of full enfranchisement for District residents. The filibuster has already been diminished twice in recent years; such a move is not unprecedented.

It is a stain on our nation that, in the very shadow of the monuments to American democracy, a separate and unequal form of citizenship has been allowed to endure. Democrats can put an end to it once and for all by granting statehood to Washington, D.C. The only question is whether they have the will and the moral conscience to do it.

[At which point, the narrator says “not enough of them did or do”].

Giving full voting rights to the residents of Washington D.C. would fit nicely with the voting rights legislation now pending in Congress, more than eight months after the above was written. If only all fifty Democrats had the will and moral conscience to do something about it.

A Lingering Question from the 2020 Election

Why didn’t Democrats do better in House and Senate races last year, given that Biden got seven million more votes than the other guy.

First, the House of Representatives. There were roughly 156 million votes for either Biden or his Republican opponent. Biden’s share of that 156 million was 52.3%. Meanwhile, Democrats got 51.5% of all the votes cast in House races and, as a result, 51.5% of seats in the House. If they had gotten Biden’s percentage instead of 51.5%, they would have done better, but not much better. Instead of 224 seats out of 435, they might have gotten 227 or 228. That wouldn’t have been a big difference. The House vote pretty accurately tracked the presidential vote.

One reason the Democrats’ House vote fell slightly short might be that five million voters didn’t bother voting for a House candidate — maybe more of those lazy, uninformed or cynical voters were Democrats. Another reason, no doubt more likely, may be that Biden’s opponent was especially unpopular. More than a few people who usually vote Republican couldn’t bring themselves to vote for their party’s presidential candidate, even though they were willing to vote for his supporters in Congress.

The Senate was a different story. Because senators serve for six years, only one-third of Senate seats are contested in any given election. In 2020, thirty-four states had Senate elections. For no reason except that it was their turn, twenty-two of those thirty-four states had Republican senators. Only twelve had Democrats.

Since states generally elect their senators with large majorities — incumbent senators often win 60% or more of the vote — you’d expect Republican presidential candidates to do extraordinarily well in states with Republican senators. That’s exactly what happened in this election. The Republican presidential candidate got 57% of the vote in states that elected Republican senators, compared to 47% in the country as a whole.

Even so, Democrats ended up winning Senate seats in fourteen of the thirty-four states, adding two states to their total. Precisely those fourteen states of the thirty-four also went for Biden.

So the Democratic presidential candidate won 52.3% of the votes cast for either him or the Republican [not for a 3rd party candidate]; Democrats running for House seats did only slightly worse; and Democrats running for the Senate picked up a few seats, despite the fact that two-thirds of the states with Senate elections usually vote for Republicans.

If there’s an anomaly here, it’s that almost half of the electorate voted for a terrible president and disgusting human being, while also voting for congressional candidates who’d support him every step of the way.

One other statistic is worth noting. Biden got 49.6% of the vote in the thirty-four states with Senate elections, even though two-thirds of those states preferred his opponent. How did he get almost half the votes in thirty-four states if two-thirds of those states voted for the other guy? The reason is that Democratic states have larger populations.

Among the thirty-four states, the average Democratic state had 3.6 million voters. The average Republican state had only 1.8 million. Because each states has two senators without respect to population, the 40 million voters in the twenty-two Republican states are represented by forty-four senators. The 43 million voters in the twelve Democratic states only have twenty-four senators.

The men who wrote the Constitution made the US Senate a bastion of minority rule. The Senate filibuster adds insult to injury by requiring sixty votes out of one-hundred to get much done. There is no justification for giving a minority of senators so much power in a legislative body that already gives disproportionate power to America’s smallest states.

Setting the Record Straight on Afghanistan

From Jennifer Rubin of The Washington Post:

Testimony from Defense Secretary Lloyd Austin and Chairman of the Joint Chiefs of Staff Gen. Mark A Milley before the Senate Armed Services Committee on Tuesday was enlightening in several respects. The two defense officials may not have persuaded those who wanted to continue an unwinnable war in Afghanistan, but they certainly put President Biden’s decision-making in context.

Much of the media’s attention focused on Milley, who at the beginning of the hearing shattered the notion that he had acted outside the chain of command or usurped civilian control in the waning days of the Trump administration. His conversations with the Chinese to de-escalate any conflict were cleared with civilian officials beforehand, he said, and he debriefed them afterward. Milley, who acted deftly within the bounds of the Constitution to avoid disaster, is not deserving of blame; rather, the ones who need to explain themselves are the former president’s cowardly enablers, who to this day pretend the former president is fit for office.

The bulk of the hearing, however, focused on Afghanistan. Austin effectively conceded in his testimony that three presidents never acknowledged (or at least never appreciated) that the mission of the war — to create a viable Afghan government and military — failed spectacularly. Austin explained:

We need to consider some uncomfortable truths: that we did not fully comprehend the depth of corruption and poor leadership in their senior ranks, that we did not grasp the damaging effect of frequent and unexplained rotations by President Ghani of his commanders, that we did not anticipate the snowball effect caused by the deals that Taliban commanders struck with local leaders in the wake of [President T____’s] Doha agreement, that the Doha agreement itself had a demoralizing effect on Afghan soldiers, and that we failed to fully grasp that there was only so much for which — and for whom — many of the Afghan forces would fight. We provided the Afghan military with equipment and aircraft and the skills to use them. Over the years, they often fought bravely. Tens of thousands of Afghan soldiers and police officers died. But in the end, we couldn’t provide them with the will to win. At least not all of them.

That’s as devastating a critique of the war’s promoters as any defense official has delivered.

Biden’s critics will have a hard time explaining why a limited force left indefinitely in Afghanistan would have been a viable alternative. There has been no evidence to dispute the conclusion that the United States could have preserved the status quo. Miley acknowledged, “The Taliban [in 2020] strengthened its positions around several provincial capitals in anticipation of the departure of foreign forces and, over this time period, enemy-initiated attacks increased by over 50 percent and were above previous seasonal norms.” He added, “The Taliban controlled approximately 78 districts in February of 2021. This rose to over 100 in mid-June and surpassed 200 by mid-July, with fighting occurring on the outskirts of 15 provincial capitals.”

The notion that the Taliban would have halted its advance if the United States kept a few thousand troops in the country defies logic. Indeed, Milley conceded, “On the first of September, we were going to go to war again with the Taliban. Of that, there was no doubt.”

As Sen. Chris Murphy (D-Conn.) wrote in an op-ed earlier this month, “If Biden had reneged on this deal, there would be a ferocious response from the Taliban. Two thousand five hundred troops would have never been nearly enough to repel the reaction from a jilted Taliban.”

The idea that the administration did not prepare for the collapse of the Afghan government was false as well. Both Miley and Austin described the advance planning in detail, including the pre-positioning of troops and a noncombatant evacuation. Moreover, the Monday-morning quarterbacking that the administration should have retained Bagram air base appears to have been misplaced. Milley explained:

The U.S. military could not secure both Bagram airfield and Hamid Karzai International Airport [HKIA] with the troops available. All together securing Bagram would have required approximately 5-6,000 additional troops assuming no indigenous partner force was available. These forces are in addition to those that would be required to secure Kabul and HKIA in the event of a [noncombatant evacuation operation]. As Gen. [Austin S.] Miller has previously testified, HKIA would always be the center of gravity of any NEO due to the population that would need to be evacuated was mostly in Kabul.

Austin also explained, “[Retaining Bagram] would have contributed little to the mission that we had been assigned: to protect and defend our embassy some 30 miles away. That distance from Kabul also rendered Bagram of little value in the evacuation.”

Finally, the widespread declaration that the administration’s airlift was a “failure” was exaggerated and lacked context. Austin and Milley conceded there were a couple of days of chaos, but tens of thousands more Afghans were evacuated than thought possible. “We planned to evacuate between 70,000-80,000 people. They evacuated more than 124,000,” Austin said. He also noted, “At the height of this operation, an aircraft was taking off every 45 minutes. And not a single sortie was missed for maintenance, fuel, or logistical problems. It was the largest airlift conducted in U.S. history, and it was executed in just 17 days.”

Critics who said the United States would not be able to evacuate anyone after the military left were wrong. The military was able to evacuate 6,000 Americans and, with subsequent extractions, has removed the vast majority of Americans who wanted out. (After months of warnings, assistance and advice, it is hard to think what more the administration could have done.)

With regard to the Afghans we failed to extract, the sad reality is that when a nation loses a war, it simply cannot get everyone whom it wants out. The expectation that we could have saved hundreds of thousands of Afghans from Taliban rule was never realistic. (Arguably, the president should have made that clear rather than make open-ended promises.)

President Biden’s critics are left exasperated. How could the United States not have done better? Certainly, Milley, Austin and other officials should have known that Afghan forces and the civilian government were hollow. But even had they foreseen an immediate collapse, a mass evacuation on any timeline would have likely had the same result (i.e., a rush to the exits). For those who wanted an indefinite war, it is time to admit there was no way to preserve the status quo without loss of more American lives. For those who wanted a “clean” and swift end, it is time to acknowledge wars do not end that way.

Moreover, the military officials’ emphasis on the disastrous Doha deal negotiated with the Taliban under President D____T____ was a proper corrective to the hypocritical blame Republicans heaped on Biden. My colleague Aaron Blake writes, “Both Austin and Milley cast the deal as largely a failure, particularly when the Afghan military — which the United States had tried to prop up for 20 years — quickly collapsed and allowed the Taliban to take control.”

In sum, the testimony went a long way toward confirming an uncomfortable truth: The 20-year war to create a viable Afghan state was a fruitless, misguided and arrogant undertaking. Biden finally decided not to sacrifice more troops and spend more money on an unwinnable venture. His error may have been in failing to prepare Americans for the ugly, heartbreaking reality of losing a war to no real effect. . . .

They Should Be Talking About the Coup Memo

Stephen Colbert, Jimmy Kimmel and Seth Meyers had something in common this week. They mentioned a memo given to our former president showing how he could try to stay in office after losing the election. The news divisions of ABC, CBS, NBC and of course Fox didn’t mention it at all. Reporters for The New York Times only got around to mentioning it yesterday in the final paragraphs of a story about the Arizona “audit” fiasco.

From Tim Murphy of Mother Jones:

There was big news this week on what is known ominously and euphemistically as “the democracy beat,” and like all such news, it was bad.

On Tuesday, CNN published a two-page memo written by a lawyer for then-President D____ T____’s re-election campaign during the run-up to the January 6 certification of the Electoral College results. In six concise bullet-points, the memo outlined a process by which Vice President Mike Pence could use his powers on January 6 to throw out the electors from seven states that President Joe Biden won in the 2020 election. The plan counted on Republicans in those states to submit competing sets of electors, based on the false and fabricated premise that T____ had somehow won those states.

The memo’s author, John Eastman, is a lawyer—at the time, he was even a tenured professor at Chapman University School of Law—but what he created is not a legal document. It is by its nature extra-legal: It is a blueprint for a coup.

Eastman anticipated the possibility that some people would be mad. “Howls, of course, from the Democrats,” he predicted in bullet-point four, immediately following the line, “Pence then gavels President T____ as re-elected.” Yeah, man, no kidding.

It is a little weird to read all these months later about something that was also plain as day at the time. Thursday marked the one-year anniversary of a Barton Gellman article in The Atlantic that laid out the strategy that T____, with Eastman and others’ help, would pursue. Mother Jones and others covered closely the efforts from the T____ campaign to throw out votes in courts and disenfranchise entire states. . . .  January 6 happened on live TV. But what was described on those couple of pages is what all the stunts and subterfuge were building up to—notes, as it were, on a criminal fucking conspiracy.

There have not been a lot of attempts to depose elected American presidents in my lifetime, though I’m only 34. Not knowing for sure what happens when you dissociate “peaceful transfer of power” from “a society entirely predicated on it,” I sort of think this is a pretty big deal. This is a break-the-glass moment, as some have said, only someone else already broke the glass and took the axe and is running around with it.

But it is not such a big deal, apparently, if you watch network TV news. On Wednesday, Media Matters’ Matt Gertz reported that the total number of minutes devoted to the story on either the morning or evening editions of ABC, NBC, or CBS News in the first two days after the memo was published was zero. “In fact,” Gertz wrote, “the only national network broadcasts to mention T____’s coup memo were the late-night variety shows hosted by Jimmy Kimmel, Stephen Colbert, and Seth Meyers.”

Americans get their news from lots of places, including from Late Night shows. And the networks are, broadly, still covering the aftermath of the January 6 insurrection, including the latest moves by the House Select Committee to subpoena former top T____ aides. But the network TV news shutout on the Eastman memo does speak to a reluctance to directly engage with this new political reality.

. . . There is something about the specific pitch of the threat that perhaps strains the capacity of some institutions to process. They’re not programmed to take on problems like this—it disturbs the comfortable equilibrium that defines a lot of political media. Republicans come on to speak to one side of things, and Democrats come on (slightly less often) to speak to the other side of things, and there are arguments, and sometimes people win and sometimes people lose. But there is always, basically, a sense that everyone is sort of acting within the constraints of the same known universe. There are scandals, too. (In fact, that universe thrives on scandal!) But those scandals never really veer into the realm of the existential. 

But what happened at the close of T____’s presidency, and seems likely to happen again if we continue mostly ignoring it, is an existential problem. There’s no equilibrium here. A majority of Republican members of Congress supported an effort to overturn the election. They’re almost all still in office. A majority of the country’s Republican attorneys general backed that same plan. . . . They’re all still in power as well. . . . The people who thought that the biggest problem with January 6 was that the game wasn’t fixed sooner are strengthening their grip on the GOP and on institutions of state and local government, and everyone else with a future in the party is getting out of their way.

The day of the insurrection at the Capitol, I remember thinking—naively but in my defense very angrily—that there might even be expulsions from Congress as a result, that those complicit would have to pay. I might feel better now if anyone had. But while there were howls, of course, from Democrats, such chatter quickly died down on Capitol Hill. The only people who have suffered any recriminations are the Republicans in Congress who, however belatedly, stood up to all this. Last week, Indiana Rep. Anthony Gonzalez, one of just 10 House Republicans to support impeaching the president for inciting the insurrection, announced his retirement, citing the “toxic dynamics” within his party. Gonzalez’s personal security budget had gone up since the vote, and he was being challenged by a former T____ aide, Max Miller. The ex-president had already come to the district to campaign against him.

This is all an enormous crisis of legitimacy for a large swath of government at many different levels, which means it’s an enormous challenge for political media and everyone else. I don’t really know how we get out of it. But I guess I’d start with acknowledging the fact that the axe is missing.

The Plan to Steal the 2020 Election

The House of Representatives has a committee that’s begun investigating the January 6th attack on the Capitol. So far they haven’t begun sharing the results of their investigation. I hope they focus just as much on what didn’t involve any violence at all. The president and his co-conspirators had a step-by-step plan to steal the election. That’s deserving of much more attention than it’s received so far.

From Jamelle Bouie of The New York Times:

. . . As the full picture of Jan. 6 begins to come into view, I think we should consider it a kind of revolution or, at least, the very beginning of one. Joe Biden ultimately became president, but D____ T____’s fight to keep himself in office against the will of the voters has upturned the political order. The plot itself shows us how.

T____, we know, urged Mike Pence to reject the votes of the Electoral College, with the mob outside as the stick that would compel his obedience. “You can either go down in history as a patriot,” T____ told Pence, as recounted in this newspaper, “or you can go down in history as a pussy.”

When this was first revealed, I assumed that T____ simply wanted Pence to do whatever it would take to keep himself in power. But this week we learned that he had an actual plan in mind, devised by John Eastman, a prominent conservative lawyer who worked with the former president to challenge the election results, a job that included a speaking slot at the rally on the National Mall that preceded the attack on the Capitol.

“We know there was fraud,” Eastman said to the crowd that would become a mob. “We know that dead people voted.”

“All we are demanding of Vice President Pence,” he continued, “is this afternoon at 1 o’clock, to let the legislatures of the states look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not!”

These weren’t just the ravings of a partisan. Eastman was essentially summarizing the contents of a memo he had written on T____’s behalf, describing the steps Pence would take to overturn the election in T____’s favor.

First, as presiding officer of the joint session in which Congress certifies the election, Pence would open and count the ballots. When he reached Arizona, Pence would then announce that he had “multiple slates of electors” and would defer his decision on those votes until he finished counting the other states. He would make this announcement for six other swing states — including Georgia, Michigan, Pennsylvania and Wisconsin — before announcing that “there are no electors that can be deemed validly appointed in those States” on account of election disputes and accusations of fraud.

At this point, Eastman explained, Pence could declare T____ re-elected, because — with seven states removed from the count — the president would have a majority of whatever electors were left, and the 12th Amendment states that the “person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.”

If, for some reason, this didn’t fly, Eastman went on, Pence could then say that no candidate had won a majority and thus the election must go to the House of Representatives, where each state has a single vote and Republicans controlled a slim majority of state delegations, 26 to 24. If Democratic objections led both houses of Congress to split into their separate chambers to resolve the dispute, then Republicans could obstruct the process in the Senate and create a stalemate that would allow Republican-controlled state legislatures “to formally support the alternate slate of electors.”

As for the courts? Eastman argued that they don’t matter. “The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter.” If Pence has the power, then Pence should act and “let the other side challenge his actions in court.”

Eastman’s confidence throughout this memo (he dismisses potential Democratic objections as “howls”) belies his shoddy legal, political and constitutional thinking. For one, his argument rests on an expansive reading of the Twelfth Amendment for which there is no precedent or justification. The vice president has never directly counted electoral votes. “Beginning in 1793, and in every presidential election since,” the legal scholar Derek Muller notes in a piece debunking key claims in the memo for the website Election Law Blog, “the Senate and the House have appointed ‘tellers’ to count the electoral votes. These tellers actually tally the votes and deliver the totals to the President of the Senate, who reads the totals aloud before the two houses after the tellers, acting on behalf of Congress, have ‘ascertained’ the vote totals.”

The 12th Amendment, ratified in 1804, codified that practice into the Constitution. Congress would do the counting, and the vice president would simply preside over the process.

Eastman also asserted that the vice president could disregard the procedure specified under the Electoral Count Act because the law itself is unconstitutional. That, Muller notes, is controversial (and something Eastman himself rejected in 2000, in testimony before the Florida Legislature during the dispute between George W. Bush and Al Gore). And even if it were true, the 117th Congress, on its first day in operation, Jan. 3, adopted the provisions of the law as its rule for counting electoral votes, which is to say Pence had no choice but to follow them. His hands were tied.

Which gets to the politics of this scheme. If Pence were to disregard the rules and the history and seize control of the counting process, House Speaker Nancy Pelosi would presumably have suspended the joint session, which relies on the consent of both chambers of Congress. “With a stalled and incomplete count because of a standoff between Pence and Pelosi,” the legal scholar Ned Foley writes in a separate Election Law Blog post, “the Twentieth Amendment becomes the relevant constitutional provision.” Meaning, in short, that at noon on Jan. 20, Pelosi would become acting president of the United States. Pence would lose authority as vice president (and president of the Senate) and the joint session would resume, with Congress putting its stamp of approval on Biden’s victory. . . . 

None of this should make you feel good or cause you to breathe a sigh of relief. Consider what we know. A prominent, respected member in good standing of the conservative legal establishment — Eastman is enrolled in the Federalist Society and clerked for Supreme Court Justice Clarence Thomas — schemed with the president and his allies in the Republican Party to overturn the election and overthrow American democracy under the Constitution. Yes, they failed to keep T____ in office, but they successfully turned the pro forma electoral counting process into an occasion for real political struggle.

It was always possible, theoretically, to manipulate the rules to seize power from the voters. Now, it’s a live option. And with the right pieces in place, T____ could succeed. All he needs is a rival slate of electoral votes from contested states, state officials and state legislatures willing to intervene on his behalf, a supportive Republican majority in either house of Congress, and a sufficiently pliant Supreme Court majority.

As it happens, T____ may well run for president in 2024 (he is already amassing a sizable war chest) with exactly that board in play. Republican state legislatures in states like Georgia and Arizona have, for example, used claims of fraud to seize control of key areas of election administration. Likewise, according to Reuters, 10 of the 15 declared Republican candidates for secretary of state in five swing states — Arizona, Georgia, Wisconsin, Michigan and Nevada — have either declared the 2020 election stolen or demanded that authorities invalidate the results in their states. It is also not unlikely that a Republican Party with pro-T____ zealots at its helm wins Congress in November of next year and holds it through the presidential election and into 2025.

If T____ is, once again, on the ballot, then the election might turn on the manipulation of a ceremony that was, until now, a mere formality.

. . .  If this happens, it would be a revolutionary change. In this world, the voters, as filtered through the Electoral College, no longer choose the president. It becomes less a question of the rule of law and more one of power, of who holds the right positions at the right time, and especially, of who can bring the military to their side.

On Jan. 20, Joe Biden became president and D____ T____ slunk off to Mar-a-Lago to lick his wounds. But the country did not actually return to normalcy. Jan. 6 closed the door on one era of American politics and opened the door to another, where constitutional democracy itself is at stake.

There are things we can do to protect ourselves — legal experts have urged Congress to revise the Electoral Count Act to close off any Eastman-esque shenanigans — but it is clear, for now at least, that the main threat to the security and stability of the United States is coming from inside the house.

Unquote.

Yet, almost ten months later, there is no indication that the Department of Justice is interested in January’s attempt to steal the election non-violently. Nor have congressional Democrats all agreed on a plan to stop Republican politicians from using their official positions to steal future elections.