We Are at Their Mercy

There are six Republicans on the Supreme Court. Three of them were nominated by a president who encouraged his followers to overturn an election after he’d lost the popular vote for the second time. Two others were nominated by a president who lost the popular vote the first time he ran, but became president anyway because a 5-4 Republican majority on the Court ordered the vote counting in Florida to end. The sixth Republican was elevated to the Court after he lied to Congress about his sexual harassment of Anita Hill.

This week five of those Republicans demonstrated that they can find an excuse in what they call “the law” to do anything they want in service of their reactionary ideology.

From Charles Pierce of Esquire:

My generally unfocused red-eyed rage at what the Supreme Court did late Wednesday night cleared momentarily and I realized that, according to the 5-4 decision allowing the blatantly unconstitutional anti-choice Texas law to stand, a state can pass all kinds of blatantly unconstitutional laws as long as they leave the enforcement of those laws to bounty hunters.

This moment of clarity passed, quickly, and unfocused red-eyed rage reasserted itself. This was completely appropriate when directed at a corrupted Supreme Court majority which did what it wanted to do, legitimate precedents be damned, and through such preposterous playground illogic that William Blackstone should rise from his unquiet grave and smack all five of those hacks upside their watery heads with copies of his Commentaries. 

We all knew that Brett Kavanaugh and Amy Coney Barrett were bag-job nominations for the specific purpose of voting the way they did late Wednesday night, and we all knew that Neil Gorsuch and Sam Alito were just waiting in the weeds with Clarence Thomas.

But, at their moment of ultimate triumph, they at least could have tried a little harder. I mean, look at this mess.

To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. . . .

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. [Note: I quoted a different part of the mess than Mr. Pierce did]

The Supreme Court of the United States is saying two things here: 1) that it really doesn’t understand the law it is being asked to adjudicate, and 2) that the Texas law, which depends upon a transparent scheme to dodge judicial review, is beyond the Supreme Court’s reach because its transparent scheme to dodge judicial review is so cleverly drawn. No wonder the five cowards in the majority issued their order unsigned. I wouldn’t want my name attached to this pile of offal, either.

Justices Sonia Sotomayor and Elena Kagan were not so reticent, and they clearly can see a church by daylight. From Sotomayor:

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand…Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent…In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.

The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing. By prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis.

Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.

For her part, Kagan expanded her anathemas to include the Court’s continuing abuse of its “shadow docket,” of which this order is the apotheosis.

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. . . . It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-docket decision-making—which every day becomes more unreasoned, inconsistent, and impossible to defend.

(It is notable that [Republican] Chief Justice John Roberts joined the minority in dissent. This further reinforces my belief that the only issues on which Roberts is reliably implacable are restricting the franchise and enhancing the corporate power of the oligarchy. That’s why Citizens United is his defining decision. For Roberts, that was a two-fer.)

Expand the Court. Do it tomorrow. Jesus Christ, a 5-4 majority just ruled that a cheap legal three-card monte game at the heart of a law was too clever for the Constitution to address.

How the Minority Rules

I’ve only got my left hand for typing right now, but there’s always copy and paste. From THE GUARDIAN:

The United States is becoming a land filled with “democracy deserts”, where gerrymandering and voting restrictions are making voters powerless to make change. And this round of redistricting could make things even worse.

Since 2012, the Electoral Integrity Project at Harvard University has studied the quality of elections worldwide. It has also issued biannual reports that grade US states, on a scale of 1 through 100. In its most recent study of the 2020 elections, the integrity of Wisconsin’s electoral boundaries earned a 23 – worst in the nation, on par with Jordan, Bahrain and the Congo.

Why is Wisconsin so bad? Consider that, among other things, it’s a swing-state that helped decide the 2016 election. Control the outcome in Wisconsin, and you could control the nation. But Wisconsin isn’t the only democracy desert. Alabama (31), North Carolina (32), Michigan (37), Ohio (33), Texas (35), Florida (37) and Georgia (39) scored only marginally higher. Nations that join them in the 30s include Hungary, Turkey and Syria.

Representative democracy has been broken for the past decade in places like WisconsinNorth Carolina, OhioPennsylvaniaMichigan and Florida. When Republican lawmakers redistricted these states after the 2010 census, with the benefit of precise, granular voting data and the most sophisticated mapping software ever, they gerrymandered themselves into advantages that have held firm for the last decade – even when Democratic candidates win hundreds of thousands more statewide votes.

In Wisconsin, for example, voters handed Democrats every statewide race in 2018 and 203,000 more votes for the state assembly – but the tilted Republican map handed Republicans 63 of the 99 seats nevertheless. Democratic candidates have won more or nearly the same number of votes for Michigan’s state house for the last decade – but never once captured a majority of seats.

Now redistricting is upon us again. This week, the US Census Bureau will release the first round of population data to the states, and the decennial gerrymandering Olympics will begin in state capitols nationwide. And while there has been much coverage of the national stakes – Republicans could win more than the five seats they need to control of Congress next fall through redrawing Texas, Georgia, North Carolina and Florida alone, and they’ve made clear that’s their plan – much less alarm has been raised about the long-term consequences of entrenched Republican minority rule in the states.

It’s time for them to ring. The situation is dangerous.

Our democratic crisis is not just the stuff of academic studies. Who controls our states is increasingly a matter of life and death. Recent history is riddled with examples. For instance, the Flint water crisis began after a gerrymandered Michigan legislature reinstated an emergency manager provision even after voters repealed it in a statewide referendum.

When lawmakers in Texas ban mask mandates, or Florida politicians take away the power of local officials to require masks in schools, that’s the consequence of gerrymandering. And its impact can be measured in actual lives. When state lawmakers enact draconian restrictions on reproductive rights in Ohio, Georgia, Alabama and Missouri that opinion polls show are out of step with their own residents, that’s the power of gerrymandering. When Republican legislators strip emergency powers from Democratic governors, that’s yet another insidious effect. Our health, safety and wellbeing – our very lives – are in the hands of our state legislators. It is imperative that our votes decide who they are.

We know that when gerrymandering “packs” and “cracks” voters into districts for partisan advantage, it results in fewer districts that are competitive. And when districts are uncompetitive, fewer candidates have incentive to run – and those who do have little incentive to pay attention to any voters’ preferences outside of those who participate in low-turnout, base-driven primaries. This district uncompetitiveness, and the lack of incentives for legislators to listen and govern, is why our state and federal legislatures are so polarized.

And it can still get worse. Republicans hold complete control over redistricting in Texas, Georgia, Ohio, Florida and North Carolina. Democratic governors will have veto power over at least some tilted maps in Pennsylvania and Wisconsin, and a new commission will draw lines in Michigan. That should force some compromise in those states. But it also means that if Democrats lose the governor’s office in any of those states in 2022, Republicans might try to force a mid-decade redraw of maps. These entrenched lawmakers continue to show us how extreme they are, and demonstrate their willingness to demolish any traditional guardrail. We have already seen how legislators in those states have pushed for new voting restrictions, for sham “audits” of the 2020 results, and have even called for changes in how electoral college votes are awarded and certified.

Let’s be clear: D____ T____’s Big Lie was enabled by gerrymandering. Much of the success of the Big Lie is in its veneer of legitimacy, which has been perpetuated by Republican state legislators in places like Michigan, Georgia and Texas – whose very electoral successes were made possible by gerrymandering. And while the system held, barely, in 2020, there is no guarantee that the same thing happens next time, after another round of extreme redistricting and several more years of surgical laws designed to suppress the vote in closely contested states.

These are the stakes right now as redistricting begins anew. As we await the final census data this week, we must not allow redistricting to unfold quickly behind closed doors. We must keep this process transparent and mapmakers accountable. Find your state’s redistricting hearing schedule online, join the meetings (many will be held virtually) and consider submitting testimony about why fair maps matter. Tweet at journalists and your legislators. Mention it in every conversation you have with friends and family. Learn about and support organizations fighting for fair maps with people power on the ground. [WON’T THESE EFFORTS BE POINTLESS?. THIS IS RAW POWER AT WORK AND A FEW DEMOCRATIC SENATORS WHO COULD REFORM THE FILIBUSTER TO PROTECT VOTING RIGHTS ARE TOO STUPID AND/OR SELFISH TO ACT]

The process is going to move fast, and the next several weeks are critical. The stakes are much higher than just Congress. This is a fight for the future of our states, too. If you think that legislators will always be accountable to the people, or that autocracy can’t happen here, you aren’t paying attention. It already is.

THE AUTHORS:

“Purity” and “Quality”: A Crisis in the Making

More than 100 experts on democracy, from John Aldrich to Daniel Ziblatt, have issued a “statement of concern” regarding the imminent crisis in American politics:

We, the undersigned, are scholars of democracy who have watched the recent deterioration of U.S. elections and liberal democracy with growing alarm. Specifically, we have watched with deep concern as Republican-led state legislatures across the country have in recent months proposed or implemented what we consider radical changes to core electoral procedures in response to unproven and intentionally destructive allegations of a stolen election. Collectively, these initiatives are transforming several states into political systems that no longer meet the minimum conditions for free and fair elections. Hence, our entire democracy is now at risk.

When democracy breaks down, it typically takes many years, often decades, to reverse the downward spiral. In the process, violence and corruption typically flourish, and talent and wealth flee to more stable countries, undermining national prosperity. It is not just our venerated institutions and norms that are at risk—it is our future national standing, strength, and ability to compete globally.

Statutory changes in large key electoral battleground states are dangerously politicizing the process of electoral administration, with Republican-controlled legislatures giving themselves the power to override electoral outcomes on unproven allegations should Democrats win more votes. They are seeking to restrict access to the ballot, the most basic principle underlying the right of all adult American citizens to participate in our democracy. They are also putting in place criminal sentences and fines meant to intimidate and scare away poll workers and nonpartisan administrators. State legislatures have advanced initiatives that curtail voting methods now preferred by Democratic-leaning constituencies, such as early voting and mail voting. Republican lawmakers have openly talked about ensuring the “purity” and “quality” of the vote, echoing arguments widely used across the Jim Crow South as reasons for restricting the Black vote.

State legislators supporting these changes have cited the urgency of “electoral integrity” and the need to ensure that elections are secure and free of fraud. But by multiple expert judgments, the 2020 election was extremely secure and free of fraud. The reason that Republican voters have concerns is because many Republican officials, led by former President Donald Trump, have manufactured false claims of fraud, claims that have been repeatedly rejected by courts of law, and which Trump’s own lawyers have acknowledged were mere speculation when they testified about them before judges.

In future elections, these laws politicizing the administration and certification of elections could enable some state legislatures or partisan election officials to do what they failed to do in 2020: reverse the outcome of a free and fair election. Further, these laws could entrench extended minority rule, violating the basic and longstanding democratic principle that parties that get the most votes should win elections.

Democracy rests on certain elemental institutional and normative conditions. Elections must be neutrally and fairly administered. They must be free of manipulation. Every citizen who is qualified must have an equal right to vote, unhindered by obstruction. And when they lose elections, political parties and their candidates and supporters must be willing to accept defeat and acknowledge the legitimacy of the outcome. The refusal of prominent Republicans to accept the outcome of the 2020 election, and the anti-democratic laws adopted (or approaching adoption) in Arizona, Arkansas, Florida, Georgia, Iowa, Montana and Texas—and under serious consideration in other Republican-controlled states—violate these principles. More profoundly, these actions call into question whether the United States will remain a democracy. As scholars of democracy, we condemn these actions in the strongest possible terms as a betrayal of our precious democratic heritage.

The most effective remedy for these anti-democratic laws at the state level is federal action to protect equal access of all citizens to the ballot and to guarantee free and fair elections. Just as it ultimately took federal voting rights law to put an end to state-led voter suppression laws throughout the South, so federal law must once again ensure that American citizens’ voting rights do not depend on which party or faction happens to be dominant in their state legislature, and that votes are cast and counted equally, regardless of the state or jurisdiction in which a citizen happens to live. This is widely recognized as a fundamental principle of electoral integrity in democracies around the world.

A new voting rights law (such as that proposed in the John Lewis Voting Rights Act) is essential but alone is not enough. True electoral integrity demands a comprehensive set of national standards that ensure the sanctity and independence of election administration, guarantee that all voters can freely exercise their right to vote, prevent partisan gerrymandering from giving dominant parties in the states an unfair advantage in the process of drawing congressional districts, and regulate ethics and money in politics.

It is always far better for major democracy reforms to be bipartisan, to give change the broadest possible legitimacy. However, in the current hyper-polarized political context such broad bipartisan support is sadly lacking. Elected Republican leaders have had numerous opportunities to repudiate Trump and his “Stop the Steal” crusade, which led to the violent attack on the U.S. Capitol on January 6. Each time, they have sidestepped the truth and enabled the lie to spread.

We urge members of Congress to do whatever is necessary—including suspending the filibuster—in order to pass national voting and election administration standards that both guarantee the vote to all Americans equally, and prevent state legislatures from manipulating the rules in order to manufacture the result they want. Our democracy is fundamentally at stake. History will judge what we do at this moment.

Unquote.

The two Democratic senators who seem most reluctant to suspend the filibuster in order to protect democracy should read this statement.

Senator Joseph Manchin
306 Hart Senate Office Building
Washington D.C. 20510

Senator Kyrsten Sinema
317 Hart Senate Office Building
Washington D.C. 20510

It Can Happen Here

Earlier today, I quoted part of an interview with political scientist David Faris regarding Republican efforts to do make America safe for minority rule. The Washington Monthly’s blog also has a brief article by him. It’s called “The Republican Assault on Democracy Is Worse Than You Think” (note: besides changing the name of the orange-skinned creature to “X”, I’m changing all references to the “GOP” to “GQP” to reflect the party’s mass descent into the conspiratorial abyss):

Despite the palpable relief of Joe Biden’s election, American democracy is experiencing an ongoing crisis. With Republicans likely to end the Democratic hold on the House next year with an aggressive gerrymander, GQP-led states enacting voter suppression laws and Republicans laying the groundwork for a more successful version of [President X’s] post-hoc effort to steal the 2020 election, the threat to democracy is clear and present.

That widely felt, crisis-like sense of urgency is why the Democratic House passed the For the People Act, which among many other things would end gerrymandering and make it easier for adults to vote, and then made history by forwarding a D.C. statehood bill to the Senate, which would rectify a longstanding injustice and help keep Mitch McConnell, a Republican from Kentucky, the leader of the minority rather than the majority.

Unfortunately, a handful of Democratic senators led by and possibly limited to Joe Manchin, of West Virginia, and Kyrsten Sinema, of Arizona, may unwittingly usher in a long era of de facto authoritarianism by blocking the reforms needed to preserve democracy. Both insist that they won’t abolish the filibuster, which is the gateway drug to doing anything at all.

Consequently, Democrats must avert both the looming carnage in the midterm elections as well as a post-election putsch in 2024. There’s really only three things they can do, and none of them will be easy, but it’s worth considering because the alternatives are worse.

First, Biden and Harris could win re-election by a margin beyond dispute. The 2020 election was extremely close. A small shift in votes across three battleground states could have thrown the election to [X] despite Biden’s significant margin in the national popular vote. A more substantial Biden win in the critical states might ensure that [GQP] coup plotters won’t be able to pull off an electoral vote heist.

Barring that, it is critical that Democrats cling to one branch of Congress in both 2022 and 2024. The [GQP] gambit to object to electoral votes and throw the election into the House failed in large part because they needed a majority in both chambers to toss out the electoral votes from a particular state. While a majority of Republican senators never signed on to this malevolent project, the guess here is that this can mostly be attributed to the futility of the effort. If Republicans had the votes, many of the senators who refused to object would almost certainly have come around if they believed that the maneuver could have secured another term for [X].

Democrats must also win gubernatorial (and secretary of state) races in Pennsylvania, Michigan, Wisconsin, Georgia, Arizona, and others. Another factor in the coup is that Democrats controlled the election machinery in the Midwest battlegrounds, and Republican officials in Arizona and Georgia, to their credit, refused to play their part in [X’s] plot. We may not be so lucky in 2024.

It is hard to overstate how unlikely it is that even one of these three things might happen if Democrats can’t muster the votes to pass democracy reform.

They don’t call them midterm losses for nothing. The president’s party has taken a beating in nearly every post-WWII midterm election, losing an average of 26 seats in the House and four in the Senate. The out-party’s voters are extra motivated to deliver a rebuke to the president’s party, while the president’s party gets complacent. To make matters worse, in the absence of mandatory non-partisan redistricting, Republicans are going to add a significant number of safe or Republican-leaning seats to the House, making their path to a majority even easier.

In the Senate, Majority Leader Chuck Schumer, of New York, must hold onto precious seats in what will be tough races in Georgia (Raphael Warnock), Arizona (Mark Kelly), Nevada (Catherine Cortez-Masto), and New Hampshire (Maggie Hassan). Democrats have only three realistic pickup opportunities in Wisconsin, Pennsylvania and North Carolina, maybe Florida. That math is not great.

As for those governor races, Democrats again begin the cycle struggling against history’s headwinds. The president’s party has lost governorships in 16 of the last 19 midterms. In just one midterm since WWII (1986) has the party in power increased its gubernatorial numbers. . . . 

If Democrats lose both chambers of Congress, cough up multiple governorships, and the 2024 election is another squeaker, we know the playbook. [GQP] governors will certify Republican electors no matter what the voters want, and Republican congressional majorities will try to deliver the presidency to their party’s candidate. State legislatures, which used to pick senators, will supplant secretaries of state where Republicans detect any wobbling. Wherever it goes from there is anyone’s guess, but democracy as we know it will be gone. . . . 

That means figuring out how to get Manchin and Sinema to nuke, or at the very least curtail, the filibuster should consume every waking minute of Chuck Schumer’s life. The alternative is to either hope for a series of electoral miracles or watch helplessly as an authoritarian mob ushers in the catastrophe. We may never get another chance to fix this peacefully.

They’ve Got a Great Name for Voter Suppression and One Party Rule

From Fox News last month:

The Republican National Committee is launching a new panel on election integrity that it says is dedicated to restoring transparency and confidence to future elections.

The RNC announced their new Committee on Election Integrity on Wednesday, sharing the news first with Fox News.

Because everybody is in favor of election integrity.

From Greg Sargent of The Washington Post:

The New York Times has a remarkable new report that exposes the breadth of Republican voter suppression efforts. Party leaders and their conservative allies are seeking to coordinate the passage of bills — in multiple states — designed to make it harder to vote, justified by mythic voter fraud.

For instance, the Times reports, those efforts played a role in a radical package of bills moving forward in Georgia, which includes ending vote-by-mail for most voters and limiting Sunday voting drives, which are heavily utilized by African Americans.

Republican leaders and their allies plan to export statutory language restricting voting to other states, and in many of them, extensive such efforts are already underway.

“The widespread coordination underscores the extent to which the dogma of voter fraud is embedded in the Republican Party,” the Times reports, bluntly noting that the Republican “views its path to regaining a foothold in Washington” through “an intense focus on re-engineering the voting system in states where it holds control.”

The focus-grouped phrase justifying all this is “election integrity.” That’s the name of the new group, run by the Republican National Committee, that is developing more such proposals for export to states.

But [the former president] has already told us what standing for “election integrity” really means: making it harder to vote for the express purpose of making it easier for Republicans to win future elections.

[He] made this explicit during his Conservative Political Action Conference speech. He declared that the Republican must be the party of “election integrity” and that this means reversing efforts to make it easier to vote wherever possible and that this is an “urgent” matter facing the Republican. . . .

Importantly, this is not [their leader] projecting his own corrupt motives on to what Republicans are doing. Rather, it’s that Republicans are acting on precisely that very same [rationale]:

[According to the Times:]

To head its election integrity committee, the Republican National Committee tapped Joe Gruters, the Florida Republican Party chairman who in January used a #stopthesteal hashtag and advertised ways for Republicans to attend the Jan. 6 rally that ended with a riot at the Capitol. . . .

Like nearly all of the Republicans involved in the party’s voter integrity efforts, Mr. Gruters declined to characterize Mr. Biden’s victory as legitimate, despite there being no evidence of widespread fraud and multiple state audits reaffirming the results. “There are a lot of people who have a lot of questions about the 2020 race.”

The call for “election integrity” is now inseparable from the claim that the election was stolen from Trump. That’s a lie, but the fact that so many Republican base voters believe it — which Trump and Republican officials [got them to believe] — is itself the stated justification to continue.

But we are not obliged to pretend that these Republican officials actually believe their lies about the election. Once we liberate ourselves of that notion, the plain truth comes into view: The same justification used to incite an effort to violently subvert the 2020 election’s conclusion is now being used to manipulate future elections, by preventing as many Democratic-aligned voters, untold numbers of them African American, from voting as possible. . . .

Unquote.

Choosing a positive phrase to describe a blatant power grab is a great bit of marketing. Journalists will tend to adopt the Republican terminology, just like the authors of the Times article when they refer to the “election integrity committee” and “the party’s voter integrity efforts” in the quote above. We need to keep in mind that, in this case, “election integrity” means stuff like making it a crime in Georgia to give food or water to voters standing in line for hours to vote because there are so few polling places in their neighborhoods.