Tag Archives: Voting Rights

2020 General Election, Democracy, Republicans

Legal principles be damned: Republican Justices smack down the Democratic Party and voting rights

Originalism? A close reading of the text of the Constitution? Strict respect for the law as written? Nonsense. Even Chief Justice John Roberts, who has made a career of disabling the Voting Rights Act, hasn’t been on board with the consistently pro-Republican Party, anti-voting rights’ series of grotesque rationales Kavanaugh, Gorsuch, Alioto, and Thomas have adopted in case after case after case.

Harry Litman in this morning’s Los Angeles Times, after Justice Kavanaugh cited Bush v. Gore as precedent:

The deciding principle of Bush vs. Gore is generally understood to be no more than this: George W. Bush wins. Or, to be as charitable as possible toward the five members of the court who made up the majority: The ruling was necessary to stop the partisan bloodletting and chaos generated by hanging chads in Florida.
The decision was so tenuous and rushed that the justices themselves, in a stunning departure from judicial practice, wrote into the unsigned opinion that it should not serve as a precedent: It was “limited only to the present circumstances.”
Nonetheless, Kavanaugh on Monday embraced the most far-fetched theory laid out in Bush vs. Gore, in a separate opinion written by Rehnquist, who was straining to figure out a way to insert the court into the Florida mess.

Next up in the stampede to indelibly brand SCOTUS as a tool of Republican voter suppression, Neil Gorsuch, who in a dissent trampled on precedent and federalism to overrule a state supreme court ruling on the state’s constitution and statutes, as described by Mark Joseph Stern in Slate:

Gorsuch’s approach here—going over state law with a fine-toothed comb to see if the state court got it right—is a stunning assault on state sovereignty. An oddly timed one, too: It is outrageous enough to reject an unbroken line of precedent that lets states run their own elections; it’s another thing to do so six days before Election Day. The Supreme Court’s ultraconservative faction appears bent on destabilizing this election. These justices are teeing up another Bush v. Gore if the presidential race comes down to Pennsylvania or North Carolina. They have laid the groundwork to nullify late-arriving ballots on the basis of a dangerous constitutional theory that even Chief Justice John Roberts finds too extreme.

Donald Trump will soon lose the popular vote to Joe Biden by a greater margin than he did to Hillary Clinton in 2016. If all the votes are counted, Donald Trump will lose the Electoral College to Joe Biden. The slender thread his reelection hangs on is the Republican Party’s campaign of voter suppression, which Trump and the GOP hope will lead to a victory via machinations in the courts or a state legislature (or two) or Congress — not one decided at the ballot box.

A resounding Biden victory with a decisive judgment rendered by American voters will not guarantee that Republicans cannot steal the election, but it’s our best bet at this stage. Judicial rulings to stop votes from being tallied — as with Bush v. Gore — is the last thing this country needs. One stolen election in two decades is more than enough.

(Image: Brett Kavanaugh September 27, 2018, vowing revenge on Democrats:

“This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. And millions of dollars in money from outside left-wing opposition groups.

This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions, from serving our country.

And as we all know, in the United States political system of the early 2000s, what goes around comes around.”)

The Way the World Goes 'Round

Round and round: The president, the governor, voting rights, and the Grim Reaper

1.  Speech acts

In 1974, John Searle made an observation in a classroom about this sentence: ‘This room would look good in blue.’ He noted that the import of the sentence could differ from speaker to speaker. So, for instance, the words constituted a simple declarative sentence when spoken by a casual observer to a friend, while the same sentence could function as an imperative – Paint it blue – if spoken by the homeowner to a contractor.

I was reminded of this lecture when reading Bonnie Honig’s comments about an exchange on Fox News (which I quoted yesterday):

Jesse Watters: The President’s spitballing and he’s asking questions. ‘Would it be possible to maybe target the virus through a cure using certain ingredients and using sunlight?‘ You didn’t believe the President was putting anyone in danger, did you?

Dr. Deborah Birx: No. He gets new information. He likes to talk that through out loud. And really have that dialogue. And so that’s what dialogue he was having. I think he just saw the information at the time, immediately before the press conference. And he was still digesting that information.

It was easy enough to take the good doctor’s suggestion – that Trump was just digesting the information when he commented on bleach and light – at face value. But, Honig illustrates why this is wrong.

Trump isn’t just riffing aloud. He is demanding public praise for his intelligence from a distinguished authority whose job depends on Trump’s goodwill. Honig (“Spitballing in a pandemic”) [emphasis added]:

Dr. Birx … tried to explain it all away on Fox News, and what she said rings true: “When he gets new information he likes to talk that through out loud and really have that dialogue and so that’s what dialogue he’s having.” The issue, she implies, is not the musing: that is his process. The issue is that it happened in the wrong place at the wrong time.

But Trump knew that. He mused publicly because he hoped to give us all a peek behind the scenes. He has ideas and his people take them seriously! See? And who knows? He himself might come up with the cure! 

. . .

What we saw on Thursday in the briefing room is what is going on behind the scenes: his advisors indulge Trump’s bright ideas and take them seriously. “I just had a thought. Look into it.” He did not say it like it was an order. On Thursday, his tone was inveigling, whispery. He was impersonating what he imagines it looks like to have an idea. Buttressed by power and smothered in noblesse oblige, however, his “thought” was really a command: act like it’s a good idea. — Yessir, we will.

2.  That’s bracing

In California, declaration of an emergency results in an extraordinarily broad expansion of a governor’s power, in this case, Gavin Newsom’s:

States are afforded broad authority under constitutional law, which grants them “police power” to improve the health, safety, morals and general welfare of the population. Under California’s Emergency Services Act, the governor’s powers are virtually unlimited — he can suspend any law or regulation during a state of emergency.

3. Voting rights

On April 12, I referenced election expert Richard Hasen’s fear that Republican-controlled state legislatures, in purple states (or red ones that could flip to Biden), could cancel the November 3 election and allocate the state’s electoral votes to Trump. The U.S. Supreme Court noted in Bush v. Gore that state legislatures possess this authority under the Constitution.

Last week, in a review of Joe Biden’s warning that Trump could try to cancel the election, Ed Kilgore noted that in fact the Florida legislature – in 2000 (when Bush v. Gore was before SCOTUS) – filed a brief asserting the authority to throw out the election results and direct all of the state’s electoral votes to Bush. The five Republican men who comprised the Court’s 5-4 majority in the case rendered this move unnecessary to give the election to George W. Bush.

In the aftermath of the Court’s unsigned 5-4 ruling overturning a lower court’s extension of time to count ballots in Wisconsin’s recent election in the midst of the coronavirus pandemic, Nina Totenberg commented that “in a voting case, Chief Justice Roberts assuredly would have played a pivotal role.” Roberts has been deeply involved in voting rights cases dating to 1982, when as a staffer to Ronald Reagan, he worked (unsuccessfully) to narrow the 1965 Voting Rights Act. Later, as Chief Justice, he succeeded in gutting provisions of the law. Regarding the Wisconsin case, she observed:

So, it was no surprise when the conservative majority refused to make even a modest accommodation to the pandemic. What was surprising was the tone of the opinion. Critics of the opinion, including some Roberts defenders, called the language “callous,” “cynical” and “unfortunate.”

4. The Grim Reaper aka the Majority Leader of the United States Senate

Mitch McConnell was on conservative talk radio last week. He made news by suggesting that he thought, rather than provide funding for states facing unprecedented financial burdens fighting the coronavirus, that he would prefer to see the states declare bankruptcy.

I would certainly be in favor of allowing states to use the bankruptcy route. It saves some cities. And there’s no good reason for it not to be available. My guess is their first choice would be for the federal government to borrow money from future generations to send it down to them now so they don’t have to do that. That’s not something I’m going to be in favor of.

And:

“I said yesterday we’re going to push the pause button here, because I think this whole business of additional assistance for state and local governments needs to be thoroughly evaluated. You raised yourself the important issue of what states have done, many of them have done to themselves with their pension programs. There’s not going to be any desire on the Republican side to bail out state pensions by borrowing money from future generations.” 

In a press release, McConnell highlighted his comments about state bankruptcy with the heading, “On Stopping Blue State Bailouts.”

Governor Andrew Cuomo responded:

Let me go back to my self-proclaimed Grim Reaper, Senator McConnell for another second. He represents the State of Kentucky, okay? When it comes to fairness, New York State puts much more money into the federal pot than it takes out, okay. At the end of the year, we put in $116 billion more than we take out, okay? His state, the State of Kentucky, takes out 148 billion more than they put in, okay.

… Senator McConnell, who is getting bailed out here? It’s your state that is living on the money that we generate. Your state is getting bailed out, not my state.

Cuomo also took McConnell to task for the rawest kind of partisanship.

Don’t help New York State because it is a Democratic state. How ugly a thought. I mean just think of – just think of what he’s saying. People died: 15,000 people died in New York. But they were predominantly Democrats, so why should we help them? I mean, for crying out loud, if there was ever a time for you to put aside, for you to put aside your pettiness and your partisanship and this political lens that you see the world through — Democrat or Republican, and we help Republicans but we don’t help Democrats — that’s not who we are. That’s just now who we are as a people. I mean, if there’s ever a time for humanity and decency, now is the time.

As I have observed repeatedly in this blog, Mitch McConnell’s M.O. is to exacerbate partisanship at every opportunity. Humanity? Decency? Not among McConnell’s priorities.

I learned from David Frum that Republican proposals to encourage state bankruptcies date back more than a decade. The idea, which Frum sketches, is this: rich blue states impose higher taxes, and spend more on social programs (including, incidentally, generous public employee pensions), than Republicans like. Yet many wealthy Republicans – the GOP donor class – live in blue states. Moreover, Mitch McConnell’s biggest donors are not from Kentucky: they too live, work, and pay taxes in blue states. If Congress (when Republicans are in charge), and the federal courts (which are being stacked with right wing ideologues), could impose a bankruptcy process on the blue states, then those rich Republicans living in California, New York, and other wealth-generating states where Democrats reliably get elected, could see their taxes go down.

And if that meant that public employee pensions could be gutted, then Republicans would be smiting the most well-organized Democratic constituency – public employee unions – in the country.

Governor Andrew Cuomo’s comments (characterizing McConnell’s suggestion as “one of the saddest, really dumb ideas of all time”), asserted that state bankruptcies would wreak havoc on markets worldwide, wrecking the economy. Actually not (as Frum explains): Republican proposals to permit state bankruptcies would ensure that big money interests get paid; it’s the labor unions that would lose. And Democrats.

Frum observes:

A federal bankruptcy process for state finances could thus enable wealthy individuals and interest groups in rich states to leverage their clout in the anti-majoritarian federal system to reverse political defeats in the more majoritarian political systems of big, rich states like California, New York, and Illinois.

In other words, in a country where more than half the population only elects 18 of 100 Senators; where the Electoral College reflects this disparity; and where boundaries for Congressional Districts (because of demographics related to cities and state of the art gerrymandering) make Democratic votes less potent than Republican votes, Democratic majorities may still rule within the states. But If Republicans in Washington could change federal law (and shape federal court rulings) as proposed, then a national minority could crush majorities within the big blue states. California, New York, Illinois, and others would cease to enjoy majority rule.

Yet another Republican plan for extinguishing responsive democratic government. Here’s hoping Mitch McConnell is deposed as Majority Leader after November 3.