Democracy Watch

Why Washington Sucks (Part 2)

POSTED 3/8/2018

Besides the partisanship denounced so well by West Virginia Senator Joe Manchin a month ago, there is the ever-increasing amounts of money that flow through the political system.  This year's mid-terms are shaping up to be the most expensive mid-terms in history.

The Koch Network is set to spend up to $400 million in the mid-terms to ensure continued Republican control of Congress.  The NRA is sure to increase its campaign spending from previous mid-terms though not likely reaching the $100 million total it spent on the 2016 election cycle - about half of that in direct campaign contributions.  That was certainly money well spent since nothing is happening in Congress even after the Parkland, Florida school shooting.  As for the President, Trump received $30 million from the NRA, and after a "great" recent meeting with the NRA, his position on gun control measures seems to have shifted again.  Guess which way...

SCOTUS wrote its "Citizens United" ruling in 2010 and any restraint on campaign spending became a thing of the past.  "Corporate personhood" and "dark money" made their way into the common political lexicon.  But corporate personhood goes back a long way.  "The Atlantic" relates how 'Corporations Are People' Is Built on an Incredible 19th-Century Lie.  - RJC, 3/8/2018

Voting Rights - Wins and Losses

POSTED APRIL 4, 2018, UPDATED APRIL 22

The Supreme Court will be ruling on partisan gerrymandering by the end of its current session.  This could be a monumental step towards eliminating one of the biggest inequities in the American electoral system...if the justices can agree on the line that must be crossed for such gerrymandering to be unconstitutional.   Even if SCOTUS does rule in favor of democracy, the decision will probably not come in time to affect the 2018 elections.  Meanwhile, there have been several recent developments and studies in the area of voting rights, providing us with some good news and some bad.

Conservative attempts to purge voter rolls in heavily Democratic districts has been dealt a serious blow by a Federal judge in Florida.  

The Trump Administration is taking steps that will increase the undercount of minorities in the upcoming 2020 census - primarily by adding a citizenship question and by reducing the number of field workers who follow up when forms are not returned.

A recent report from the Brennan Center for Justice calculates just how much of a landslide Democrats will need in order to win in districts that were drawn specifically to withstand Democratic waves and elect Republicans.  In order to win control of the House in 2018, Democratic candidates would have to win the popular vote nationwide by 11 points.

The Pennsylvania Supreme Court redrew district maps when Democrats and Republicans could not agree on a new map to replace the unconstitutional map drawn by Republicans after the 2010 census.  The court’s new map largely undid the Republican gerrymander, creating 10 Republican-leaning and eight Democratic-leaning House seats, as estimated using 2016 presidential election returns. Outside redistricting experts who were not involved with the case praised the new map, calling it “fairer” and “much more competitive” than the old one. Republican lawmakers from Pennsylvania who lost the gerrymandering case before the state’s Supreme Court are now calling for justices who issued the ruling to be impeached.  

UPDATES:

Kansas Secretary of State Kris Kobach, the head of Trump's disbanded voter suppression panel (aka, in MAGA-land, "Election Integrity" Commission), was held in contempt of court  by a federal judge for failing to follow a court order to register voters in Kansas.

-RJC, 4/4/2018, LAST UPDATED 4/22/2018

Has Trump Gone Too Far?

Demand for an investigation of HIS OWN investigation crossed a "red line" and something you'd expect in a dictatorship

POSTED 5/22/2018

I haven't paid much attention to the various scandals and investigations raging around Trump for a couple of reasons.

First and most importantly, his repugnant policies are much more damaging to the country and the world.  

Secondly, no matter what the various investigations turn up, a Republican Congress will never impeach Trump.  And no amount of scandal, no amount of uncovered corruption will change a single Trump voter's mind....

If there are elements of the Trump Scandal and Corruption Circus that get my attention, they are those that imply abuse of power or obstruction of justice.  Both elements are present in yesterday's ranting tweet "demanding" an investigation into his own investigation.  This politically-motivated, possibly justice-obstructing abuse of power is something you'd expect to see in a dictatorship...

As Eugene Robinson says in his Washington Post op-ed: "Stop waiting for the constitutional crisis that President Trump is sure to provoke. It’s here."  

Read more...

The conservative majority Supreme Court again proved its disdain for and misunderstanding of the founding principles of our country.  The democracy-challenged court voted 5-4 to allow Trump's Muslim travel ban 3.0 to stand.  Justices Ginsberg and Sotomayor issued a scathing dissent to the ruling.   

Huffington Post, June 26: "The dissent by Sotomayor and Ginsburg argued Trump’s travel ban couldn’t be considered outside the statements of the man himself. Trump has repeatedly shared negative opinions about Muslims and has explicitly called for banning them from the U.S. According to an adviser, he also asked for help in carrying out the plan legally.  “Ultimately, what began as a policy explicitly ‘calling for a total and complete shutdown of Muslims entering the United States’ has since morphed into a ‘Proclamation’ putatively based on national-security concerns,” the justices wrote. “But this new window dressing cannot conceal an unassailable fact: the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islam and its followers....“[D]espite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam,” the justices wrote. “Instead, he has continued to make remarks that a reasonable observer would view as an unrelenting attack on the Muslim religion and its followers.”

USA Today, June 26: "The overwhelming majority of the people barred by the “proclamation” are Muslim, and there is little if any evidence indicating that their exclusion protects national security. Over the past 40 years, the number of people killed in terrorist attacks on U.S. soil by entrants from any of the five nations is zero....Chief Justice Roberts’ opinion cites Trump’s statements, and assumes that they are relevant evidence. Nonetheless, he essentially ignores their impact by ruling that legal challenges to presidential decisions on immigration policy are subject only to minimal “rational basis” review that can be satisfied so long as there is a plausible basis for the policy. This approach comes close to gutting the Bill of Rights as a constraint on presidential power over immigration. Almost any discriminatory exclusion can be justified on the theory that the people barred pose some sort of threat, especially if the courts refuse to consider the quality of the evidence that supposedly justifies such claims. Nothing in the Constitution justifies such near total exclusion of immigration policy from the constraints of the First Amendment. Like most of the rest of the Bill of Rights, the amendment is phrased as a general constraint on government power, not one limited to particular types of policies, or protecting only a specific group of people, such as citizens of the United States."

Timing oddly peculiar for proposal limiting demonstrations in DC

First Amendment rights threatened

POSTED OCTOBER 22, 2018

As the Iranophobes directing US Middle East policy grow stronger and bolder, as the second stage of Trump's Iran sanctions is about to take effect, and as a dissident Saudi journalist's murder is swept under the rug by Iranophobes Trump and Pompeo, the National Park Service is proposing rule changes that would severely limit access to venues in D.C. for demonstrations.

The Atlantic, Oct 13: "From the March on Washington to the March for Our Lives, from the women protesting for suffrage to the women protesting against President Donald Trump, the grounds of the National Mall and the White House have been an important theater for Americans exercising their First Amendment rights in full view of their government.  But a new set of rule changes proposed by the National Park Service has some Americans worried that the use of these historic venues for demonstrations could soon be severely limited...Two provisions are of most concern. One would restrict how much of the White House sidewalk is available for protests, shrinking the available area by 80 percent. The other is categorized as a “consideration,” rather than as a proposed rule change. But it’s been controversial nevertheless: The NPS is thinking about requiring people who apply for a demonstration permit to “pay fees to allow the NPS to recover some of the costs” of administration—costs historically picked up by the federal government." 

Although the White House is not publicly claiming to be behind the rule changes, the timing is peculiar.  And it has caught the attention of the public, defenders of the first amendment, and anti-war groups.  

• Charging for Free Speech: If a fee requirement had been in effect in 1963, Martin Luther King Jr.’s historic March on Washington and his “I have a dream speech” probably couldn’t have happened.

•  Public Funds: Managing public lands for the benefit of the American people is what Congress funds the National Park Service to do. That includes demonstrators just as much as tourists or hikers. While the park service may be strapped for funds, it cannot balance its budget on the backs of people seeking to exercise their constitutional rights.

• Limiting Spontaneous Demonstrations: The right to protest immediately in response to unfolding events is a key part of freedom of speech. As Judge J. Skelly Wright recognized in the ACLU-DC lawsuit against the 1967 restrictions, “Timeliness is essential to effective dissent. Delay may stifle protest as effectively as outright censorship.”

SCOTUS hears gerrymandering arguments - is American democracy doomed?

POSTED MARCH 28, 2019

Merriam-Webster: gerrymander  - to divide or arrange (a territorial unit) into election districts in a way that gives one political party an unfair advantage  

Years ago, a German work colleague noted a difference in our approaches. "In America, if something is not prohibited, you assume you can do it.  In Germany, if something is not expressly permitted, we assume we cannot do it."  We may soon see this play out in an important ruling soon to be issued by the Supreme Court.

Arguments for and against partisan gerrymandering were heard by the Supreme Court on Tuesday.  The Supreme Court is hearing the cases from North Carolina and Maryland on appeal after lower courts invalidated the gerrymandered maps. You would think that powerful justices in a democracy would, on principle, disapprove of unfairness in any form.  Unfortunately, that's not how the Supreme Court works.  When an issue finally makes it to the Court, they view it in terms of the Constitution.   I hope I'm wrong, but the strict constructionist majority will likely not see it expressly prohibited by the Constitution - therefore it is permitted.  

Justice Anthony Kennedy was the deciding vote in the 2014 ruling against the Arizona State Legislature's challenge of the state's independent redistricting commission.  His replacement, Brett Kavanaugh, is much further to the right.  So, I'm resigning myself to a disappointing 5-4 vote in favor of partisan gerrymandering.

But a ruling legitimizing partisan gerrymandering is not the worst that could come out of this.  Mark Joseph Stern at Slate outlines a nightmare scenario: the justices do nothing to stop partisan gerrymandering leaving it "to the people" to remedy by way of ballot initiatives.  One of the absurdities of this suggestion by Justice Gorsuch is that at least 24 states bar citizens from circumventing the legislature to enact gerrymander reform.  If H.R. 1 ever passes, a key provision would require states to establish independent redistricting commission.  The conservative lawyer arguing the case before the conservative majority court has asked them to consider the constitutionality of this requirement, and the Court may well strike down independent redistricting commissions before the bill even passes.  Stern concludes: "The upshot is that without the support of the federal judiciary, millions of Americans will be powerless to stop partisan redistricting. "

First Amendment under assault: why you should care about Trump's war on whistleblowers

POSTED MAY 24, 2019

As Donald Trump considers pardons for American military personnel accused or convicted of war crimes, whistle blowers operating under the protection of the First Amendment are under assault as never before.  The US has a long history of silencing critics of its military operations - stretching back more than 100 years to Wilson's Espionage Act used to imprison critics of the US participation in WWI.  Trump's attacks on the media in an attempt to stifle criticism of his Administration are nothing compared to the danger to the First Amendment that these whistle blower cases represent.  Reporters of crimes committed in our name and hidden from our view under the guise of national security should be considered heroes, not criminals or traitors.

Partisan gerrymandering is upheld by Supreme Court

POSTED JUNE 27, 2019

The partisan, democracy-challenged conservatives on the Supreme Court upheld the right of state legislatures to draw election maps to favor their political party.  

“The partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people,” Justice Kagan wrote in her dissent for the four court liberals. “These gerrymanders enabled politicians to entrench themselves in offices against the voters' preferences.” The ruling substantially raises the stakes for the 2020 election. Whichever party controls state legislatures after that vote will be in a prime position to gerrymander electoral districts in their favor and lock in political power for years to come. (LATimes, June 27)

Common Cause expressed its outrage...

In a cowardly, partisan ruling, the Court turned its back on hundreds of thousands of people in Maryland and North Carolina -- stripped of their voice in Washington by power-hungry politicians.  Instead, in Rucho v. Common Cause and a related Maryland case, five justices have given the high court’s approval to blatant, extreme, and explicit partisan gerrymandering -- granting politicians unfettered permission to rig districts to their liking. 

...but saw a glimmer of hope "because today’s ruling doesn’t do anything to impede state-level efforts for reform -- where we can take the power to draw legislative districts away from politicians, and give it back to the people." 

Mark Stern at Slate has a more pessimistic take on what might happen at the state level. As he wrote in in a March 27 article, "residents of 24 states [have] no ability to sidestep their legislatures to enact gerrymander reform at the ballot box" and H.R.1's provision for independent state redistricting commissions to remedy this is already being challenged in the courts.

The John Roberts Court has now cemented its legacy as one of the most partisan and one of the most antagonistic to the equal right to vote.   The fundamental concept that each of us has an equal say in the country's governance has been set back decades by this court's rulings.  

Their infamous Citizens United decision in 2010 gave corporations the status of persons and, in the name of free speech, entitled to them to spend essentially as much money as they liked in campaign contributions. 

As summarized on the Center for Public Integrity's webpage on the subject: "The Citizens United ruling, released in January 2010, tossed out the corporate and union ban on making independent expenditures and financing electioneering communications. It gave corporations and unions the green light to spend unlimited sums on ads and other political tools, calling for the election or defeat of individual candidates." A companion ruling several weeks later in Federal court (SpeechNow.org) decided that limits on individual contributions to groups that make independent expenditures are unconstitutional. It further allows non-profits and so-called "social welfare organizations" ( aka 501(c)(4)), such as business leagues, to keep their donor lists secret. 

Their 2013 decision gutting of the Voting Rights Act of 1965 gave the green light to voter suppression laws - already in full swing in Republican-held states.  

Justice Ginsburg's dissent says it effectively: "The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective," Ginsburg wrote. "The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear­ance is no longer needed."  The provision has proven "enormously successful" in increasing minority registration and access to the ballot and preventing a "return to old ways," Ginsburg said. Even in jurisdictions where discrimination may not be overt, "subtle methods" have emerged to diminish minority turnout, such as racial gerrymandering. [Huffington Post]  

By upholding partisan gerrymandering, the Roberts court has completed a trifecta of voting rights denial.  

The most fundamental right in a democracy, the single most important difference from other political systems whether they be dictatorships, tyrannies, monarchies, or theocracies, is the right to vote.  Denying this right strikes at the heart of what it means to be a democracy.  Not protecting the voting rights of all brings us another step closer to plutocracy - a government of, by, and for the wealthy and the powerful.

Related: SCOTUS hears partisan gerrymandering cases - is American democracy doomed?

Will "Fears, Smears, and Voter Suppression" Determine the 2020 Elections?

POSTED SEPTEMBER 8, 2019

The 2004 re-election of George W, Bush remains the only Presidential election since 1988 that the Republican victor actually won the popular vote. A year after that election, comedian, author and future senator Al Franken's "The Truth (With Jokes)" was released.  Analyzing the Republicans' victorious campaign - the GOP retained control of the House, the Senate, and the Presidency in spite of the increasingly evident lie and disaster of the Iraq War - Franken contended that their success was due to their "fears, smears, and queers" strategy. Fears that should John Kerry, who opposed the war, be elected, we would be attacked again by al-Qaeda; a litany of smears against Kerry by the ironically named "Swift Boat Veterans for the Truth" and Fox News commentator Sean Hannity; and by misrepresentation of Kerry's views on gay marriage.

Fast forward to 2020.  We will see plenty of fear-mongering about immigrants (a wall to prevent an "invasion" of migrants from the south, continuation of the First-Amendment-violating "Muslim ban") and plenty of smearing of Democrats; gay rights, perhaps not so much - though this remains a core issue of the so-called-religious right. In gay rights stead, voter suppression may become the deciding factor in a Republican victory.

The most fundamental and defining characteristic of a democracy is the right to vote.  A good democracy is one where each person's vote is equal to every other person's.  Both of these continue to be under serious attack in state legislatures and at the conservative-majority Supreme Court.*

*In the 2012 elections, for seven gerrymandered states, Republicans were awarded 73 House seats; Democrats, 34 - a 39 vote margin when the popular vote was nearly evenly split. (The Left Bank Cafe)

**The Voting Rights bill faces almost sure defeat in the Republican Senate even if McConnell allows a vote.  When the first piece of legislation approved by the Democratic House after the 2018 elections made it to the Senate, McConnell called its provision making Election Day a Federal holiday "a power grab".  "Voting rights groups and Democratic lawmakers looked on in alarm Wednesday as Republican leaders broadcast open hostility toward policies that would curb corruption and make it easier for Americans to vote....'When you insist that a bill designed to support voting rights for everyone, shine a light on billionaire donors, crack down on lobbyists' influence, and protect our elections from foreign interference would just help Democrats, that's a pretty big tell," historian Kevin M. Kruse wrote of the GOP's rhetoric. (Common Dreams, Jan 30)

A clear and present danger (with apologies to Tom Clancy)

POSTED JUNE 6, 2020

Democracy Under Attack

POSTED JULY 30, 2020

In June, Trump failed to get the military to intervene in the anti-racism protests that followed the killing of George Floyd.  In July, he found another way - one that fits right into his re-election campaign.  Trump, in league with AG Barr, sent federal agents to Portland, Oregon, to confront anti-racism demonstrators.  Trump is threatening to send federal agents from the FBI, U.S. Marshals Service, the Drug Enforcement Administration and the Department of Homeland Security into other Democratic-led cities across the United States.  It's the old "law and order" dog-whistle of racism coming to the fore as Trump sees Biden's lead in the national polls holding firm.  If you had any thought that the invasion of the cities was not about race, Trump removed all such doubts last week when he repealed an Obama-era bill designed to prevent segregation in housing units that receive federal funding.  It was an attempt to win back the support of white suburban voters who polls show are abandoning him.  

Democracy Under Attack: Protecting the Right-to-Vote in 2020

POSTED SEPTEMBER 13, 2020

In seven weeks, we will participate in the most important election of our lifetime.  American democracy itself is under attack with a far-right president promising to "put down" protests, warning of a right-wing uprising, and inferring he may not leave office if defeated.  Meanwhile, last-minute court decisions by conservative justices, misinformation and voter suppression are putting the most fundamental right in a democracy, the right-to-vote, at risk. Counterbalancing these anti-democratic forces are organizations committed to allowing free-and-fair elections as well as some media outlets. This post is an update on the state of voting rights and where to get help if you believe your right-to-vote has been jeopardized.

Supreme Court to hear arguments on voting restrictions; House to vote on "For the People" Act

POSTED FEBRUARY 26, 2021

At its heart, the Capitol Insurrection was an after-the-fact attempt to disenfranchise certain segments of the population.   Fueled by lies about voter fraud and led, at least visibly, by white nationalist extremists, it was an assault on the most basic right of a democracy.  Trump lit the fuse for the assault, but the insurrection was the culmination of a decade-long effort by Republicans to suppress the vote of Democratic constituencies.   

The coming week will see two significant events affecting voting rights.  The Supreme Court will hear oral arguments in a challenge to restrictive voting policies, and the House of Representatives will vote on comprehensive legislation to strengthen voting rights. 

Brnovich vs. Democratic National Committee

On March 2, the Supreme Court will hear oral arguments in a challenge to a pair of Arizona voting policies that make it harder for people to vote, especially in communities of color and Native American communities.  The case, Brnovich vs. Democratic National Committee,  has nationwide implications and will be another test of the Supreme Court's interpretation of the Voting Rights Act of 1965 - a test they failed miserably in the 2013 Shelby County vs. Holder decision.  In a party line vote,  Shelby v Holder gutted the critical pre-clearance* section 5 of the Voting Rights Act because, according to the Republican justices, the data on which jurisdictions were currently subject to pre-clearance were 40 years old.  

The effects of Shelby v. Holder were immediate.  Within 24 hours of the ruling, Texas announced that it would implement a strict photo ID law. Two other states, Mississippi and Alabama, also began to enforce photo ID laws that had previously been barred because of federal preclearance. Two months after the ruling, North Carolina instituted a strict photo ID requirement; curtailed early voting; eliminated same day registration; restricted pre-registration; ended annual voter registration drives; and eliminated the authority of county boards of elections to keep polls open for an additional hour. (Brennan Center for Justice)

The Brennan Center for Justice has found that, since the Shelby ruling, states previously subjected to pre-clearance have passed numerous laws restricting voting and have purged voter rolls at a significantly higher rate than other states.  

The Ninth Circuit Court has ruled against Brnovich, finding that both of Arizona’s policies amounted to illegal discrimination because of how they made it harder for people of color to vote given the specific circumstances in the state. 

Where Shelby gutted Section 5 of the Voting Rights Act (VRA), Brnovich is asking the Supreme Court to overturn the Ninth Circuit's decision and seriously limit VRA Section 2, which allows voters and advocates to challenge racially discriminatory policies and practices.  

A  SCOTUS decision in favor of Brnovich would be yet another strike against voting rights, currently under widespread attack in the aftermath of Biden's victory and Trump's campaign of lies about voter fraud and mail-in voting.  Already this year, over 253 restrictive bills are under consideration by legislatures in 43 states.  Without Section 5 preclearance in effect and with Supreme-Court-approved partisan gerrymandering on the docket for the redistricting following the 2020 census,  Section 2 is the primary remaining tool available to combat any racially discriminatory policies. [below left]

The John Roberts Court has been notably adverse to voting rights with, among many other rulings, a trifecta of decisions that have devastated the concept of "one person, one vote".  In Citizens United (2010), the Republican majority ushered in the era of unchecked and unlimited corporate donations - declaring that this is an exercise of "free speech" by the corporation.  In Shelby County (2013), the Republican majority gutted the Voting Rights Act which had protected voters for nearly 60 years.  In Rucho v. Common Cause (2019), the Republican majority ruled that partisan redistricting was a political issue and could not be remedied by the federal courts.  

I am not hopeful - especially now that the Republican majority on the court is 6-3.  

Partisan gerrymandering upheld by the Supreme Court (June 27, 2019)

Democracy under attack: the Roberts Court strikes again (April 8, 2020)

H.R. 1, the "For the People" Act

There is a solution though.  The 2021 version** of the "For the People" Act is comprehensive legislation that would protect and expand voting rights.  The Act includes provisions for "automatic voter registration and other steps to modernize our elections; a national guarantee of free and fair elections without voter suppression, coupled with a commitment to restore the full protections of the Voting Rights Act; small donor public financing to empower ordinary Americans instead of big donors (at no cost to taxpayers) and other critical campaign finance reforms; an end to partisan gerrymandering; and a much-needed overhaul of federal ethics rules." 

A mid-February poll by Data for Progress and Vote Save America examined attitudes on H.R.1 through a national sample of 1,555 likely voters and found that voters overwhelmingly support the legislation and key reforms that the legislation would implement — from limiting money in politics to independent commissions for redistricting. [below right]

*Section 5 of the Voting Rights Act, the pre-clearance section, required jurisdictions with a prior history of discrimination to have changes to voting laws reviewed and approved before implementing. 

**The House of Representatives passed the "For the People" Act as the first piece of legislation in January 2019.  The Republican-held Senate would not bring it to a vote.

Democracy under attack: the "minority-rule doom loop" and the assault on voting rights

POSTED APRIL 14, 2021

The definition of democracy that I learned during my grade school history lessons was "majority rule with the protection of individual rights."  The United States is on a path to the exact opposite - minority rule with the suppression of individual rights, particularly the bedrock democratic right to vote.  

The perpetrators of this assault on democracy are the politicians and strategists of the Republican Party, aided and abetted by a conservative, partisan judiciary*, enabled by a 233 year old Constitution, and weighted with racist and white nationalist overtones.

At the heart of the current assault is the 21st century voter suppression effort underway since the election of Barack Obama.  As Michael McDonald, a professor at the University of Florida and one of the nation’s foremost experts on voting laws, put it , “We are witnessing the greatest rollback of voting rights in this country since the Jim Crow era.” 

Based on the fallacy of widespread voter fraud, the past 12 years have seen dozens of states enact hundreds of voter suppression measures that deny equal access to the polls.  The tactics have included strict voter ID laws, voter roll purges, closing of polling places, decreased early voting options, voter and poll worker intimidation, registration restrictions, "exact match" requirements, and felony disenfranchisement.  Attempts have even been made to deny out-of-state students the right to vote in the state where they live nine months of the year.

Notes: 

*Senate Republicans have successfully packed all levels of the federal courts with conservative "judges, more of whom than ever before have been rated 'unqualified' by the American Bar Association and whose only expertise is hostility to civil rights, including the right to vote. "  (The Guardian, Nov 13, 2019)  A survey of election-related votes by judges in 2020 found that 79 percent of decisions by Republican-appointed judges restrict access to the ballot.

**One example: 70% of the voters eliminated by the 2018 Georgia voting roll purges were Black.

***With a brief break in 2001–02 after a party switch by Jim Jeffords

The greatest attack on voting rights since the end of Reconstruction

POSTED JUNE 17, 2021

"In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true." - Hannah Arendt

America is at a turning point.  The bedrock rights of a democracy, the right to vote and the right to have that vote counted, are under attack across the country.  

The assault on voting rights that we are seeing now is a continuation and expansion of the voter suppression effort perpetrated by Republican politicians and strategists since the election of Barack Obama.  Michael McDonald, a professor at the University of Florida and one of the nation’s foremost experts on voting laws has called it "the greatest rollback of voting rights in this country since the Jim Crow era.” 

Democracy under attack: the minority rule "doom loop" and the attack on voting rights (Apr 14, 2021)

The John Roberts Supreme Court has done much of the judicial heavy lifting for the Republican strategy of vote suppression.  Decisions by the court's conservative majority have allowed unlimited money to flow into political campaigns (Citizens United, January 2010), gutted the Voting Rights Act of 1965 (Shelby County v Holder, June 2013), and upheld partisan gerrymandering (Rucho v Common Cause, June 2019).  By giving additional political influence to wealthy donors and corporations, by removing voting protections for minorities and by not defending the concept of one person/one vote,  these three decisions were a trifecta of blows to the right-to-vote.  Their rulings have emboldened Republicans across the country to pass the most restrictive voting laws they can dream up, knowing that there is a good chance that the Supreme Court with its 6-3 conservative majority will uphold the laws.

Democracy under attack: the Roberts court strikes again  (Apr 8, 2020)

Energizing the most recent, and perhaps most dangerous, escalation of the Republican state legislatures' war on voting rights is the poison pill tossed us by Donald Trump as he desperately tried to undo an election he had lost.   The Big Lie of voting fraud in the 2020 elections led to poll worker intimidation, threats against election officials and ultimately to the January 6 attack on the Capitol which resulted in five deaths and Donald Trump's historic second impeachment.

SCOTUS completes its destruction of the Voting Rights Act

POSTED JULY 2, 2021

The Voting Rights Act of 1965 is one of the most important statutes ever passed by Congress.  By outlawing discriminatory voting practices and enforcing the Fifteenth Amendment to the Constitution*, America finally became a multiracial democracy with universal suffrage.

On Thursday, the conservative majority on the John Roberts Supreme Court completed its gutting of the Voting Rights Act of 1965.  In a 6-3 decision, the United States Supreme Court upheld two Arizona voting statutes that an appeals court had found discriminatory.  

In an earlier decision, Shelby v. Holder (2013), the Court had voided Sections 4 and 5 of the Voting Rights Act, the section that required states with historically discriminatory voting practices to obtain approval from the courts for changes to voting laws before implementing those changes.  The ruling Thursday voided Section 2,  which allowed people harmed by discriminatory voting practices to file suit and have the discriminatory legislation struck down by the courts.  

In summary, voters now have no redress for discriminatory voting practices either before or after implementation.

The ruling of the court was disappointing, but not surprising.  The Roberts Court has long failed to protect the right to vote.  Previous decisions by the court's conservative majority have allowed unlimited money to flow into political campaigns (Citizens United, January 2010), gutted the Voting Rights Act of 1965 (Shelby County v Holder, June 2013), and upheld partisan gerrymandering (Rucho v Common Cause, June 2019).  By giving additional political influence to wealthy donors and corporations, by removing voting protections for minorities and by not defending the concept of one person/one vote,  these three decisions were a trifecta of blows to the right to vote.  Their rulings have emboldened Republicans across the country to pass the most restrictive voting laws they can dream up.  

With Thursday's decision, the Court  now has a grand slam of anti-voting rulings.  The ruling makes clear that there is little hope of overturning any of the voter suppression legislation being passed across the country in Republican-held states. 

Justice Elena Kagan wrote a blistering 41-page dissent for Brnovich v. Democratic National Committee, accusing her conservative colleagues of ignoring the legislative intent of the 1965 Voting Rights Act as well as the high court’s own precedents.  By undermining Section 2 of the Voting Rights Act, they had tragically weakened “a statute that stands as a monument to America’s greatness....Never has a statute done more to advance the nation’s highest ideals. And few laws are more vital in the current moment. Yet in the last decade, this court has treated no statute worse." Justice Kagan warned that “efforts to suppress the minority vote continue” yet “no one would know this from reading the majority opinion.” [1]

The greatest attack on voting rights since the end of Reconstruction (June 17, 2021)

Democracy under attack: the minority rule "doom loop" and the attack on voting rights (Apr 14, 2021)

Democracy under attack: the Roberts court strikes again  (Apr 8, 2020) 

The only recourse to remedy these discriminatory laws at this point is to end the Senate filibuster and pass, at a minimum, the John Lewis Voting Rights Advancement Act.  The bill has not yet been introduced, but would restore a key provision of the 1965 Voting Rights Act gutted by the Supreme Court in 2013. That provision, Section 5, required certain jurisdictions with a history of racial discrimination in voting to receive approval, known as preclearance, from the Justice Department before making changes to their voting rules. [2]

Two Democratic Senators, Manchin of West Virginia and Sinema of Arizona are the roadblocks to ending the filibuster.  If they don't see the necessity of ending the filibuster now after the Court's ruling, they never will.  

The filibuster is a rule of the Senate that requires 60% of the votes to pass a measure rather than a simple majority.  It is a profoundly undemocratic procedure with a long racist history.  Initiated as an ill-advised housekeeping measure in the days when America was divided into Free and Slave states, it has been used extensively by opponents of civil rights.  Vox [link below left] reports on a study by two political scientists, Sarah Binder and Steven Smith, in which they identified "every bill between 1917 and 1994 that they believe failed purely because of the filibuster.  Among these, half were civil rights bills, including anti-lynching bills proposed in 1922 and 1935.  They also found that the senators’ view on filibuster reforms was tightly linked to their view on civil rights: Pro-reform senators tended to support civil rights bills, while anti-reform legislators opposed them."

Given the unlikelihood of any of the voter suppression laws being stopped by the courts, Democrats in Republican-held states can try to model their opposition on Texas Democrats who won a temporary delay in the passage of that state's voter suppression measures by walking out of the chamber and denying the Republicans a quorom.  In the runup to the 2022 elections, Democrats must mount a massive voter registration drive accompanied by an information campaign to ensure that voters are properly registered, that their registrations are not purged, and that their votes are counted.  

Democrats overcame many suppression laws in 2018 and 2020 -  Republicans have been trying to deny Democratic constituencies their right to vote since the election of Barack Obama.  This latest round of GOP legislation was kindled by the Big Lie of voting fraud that led to the attack on the Capitol and by the realization that they had not been successful enough in suppressing the vote.  

Not successful - in spite of their voter roll purges, their strict voter id requirements, their disinformation campaigns, their closing of polling places in communities of color, their shortening of polling hours, their "poll tax" to again disenfranchise the previously incarcerated in Florida, their exact match requirements, their criminalization of minor registration discrepancies.      

Added to the current mix of voter suppression laws are vote nullification procedures being put in place in several closely contested normally Republican states.  As Salon's Heather Digby Parton writes [link below right], voting rights advocates and Democrats do not have much experience in dealing with this method of literally stealing an election.  She describes what Democrats will face in 2022 and beyond:

"Voter suppression is sadly familiar in American political life. Vote nullification, however, is not. And that's what all these new laws and regulations are designed to do. If the vote doesn't go their way, [Republicans] are putting mechanisms in place to simply nullify the results through a complex set of 'legal' maneuvers.

"For the most part, at least since the civil rights movement, local and state elections officials have operated in a non-partisan fashion, But Trump's all-out attempt to cajole, threaten and intimidate officials into stealing the vote for him in close states has opened the floodgates to anti-democratic activity all over the country. Republicans may not have folded in 2020 but they are making sure there are legal means to do it in 2022 and 2024. And some of those means are just rank intimidation. They have put in place criminal sanctions and huge fines for decisions undertaken by election officials and are handing power to partisan players in legislatures across the country."

Will the courts uphold these nullification laws?  Will the Supreme Court allow an election to be stolen?  Or will they see through the ruse as they did in 2020?  Courts rejected nearly 60 of Team Trump's attempts to throw out election results. They ruled in favor of the Donald once.  

But the Roberts Court has already ruled in favor of partisan gerrymandering; part of their argument was that the Federal courts can play no role in redistricting maps drawn by the state legislature no matter how unfair it is.  Perhaps John and friends will apply the same logic to nullification laws: "If the state legislature says this is the way the vote is counted, then Federal courts can play no role."  

So, I am not sure which way SCOTUS will vote on the nullification measures being implemented by the states.  That says a sad thing for American democracy.

*The Fifteenth Amendment to the Constitution of the United States was ratified in 1870 and reads: 

1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. 

2. The Congress shall have the power to enforce this article by appropriate legislation.

Sources: [1] The Hill  [2] CBS News

Will Republicans finally kill democracy on Joe Biden's watch?

POSTED DECEMBER 17, 2021

If the events of the past year have told us one thing, it is this: There is now only one major political party in the United States committed to democracy.  As Democrats expand access to voting, Republicans commit themselves to remaining in power at any cost.  

The Republican war on voting goes back to the election of Barack Obama and the 2010 census.  Key to their efforts has been the John Roberts Supreme Court, which has established itself as one of the most partisan and democracy-challenged Supreme Courts in our nation's history.  Decisions by the court's conservative majority allowed unlimited money to flow into political campaigns (Citizens United, January 2010), gutted the Voting Rights Act of 1965 (Shelby County v Holder, June 2013) [sidebar], and upheld partisan gerrymandering (Rucho v Common Cause, June 2019).  

By giving a larger voice to the donor class and by unleashing a torrent of dark money in Citizens United, the Court increased the influence and decreased the accountability of special interest groups.  By destroying the Voting Rights Act of 1965, the Court made it easier to discriminate against and disenfranchise minority voters.   By upholding partisan gerrymandering, the Court allowed entrenched partisan powers to further increase their untoward control of the branches of government at both the state and federal levels.

The GOP was quick to act on the gifts from their Supreme Court brethren.  Aided and abetted by the conservative-majority Supreme Court, Republican-held state legislatures have worked for the past dozen years to end America's 56-year-old democracy.* A recap of where we were on the eve of the 2020 elections is in the sidebar.  

Bad as this was, the last 12 months have seen an even greater assault on democracy's most basic rights - the right to vote and to have that vote counted.  Plainly put, there is one year left in the Democrats' control of Congress.  Unless Joe Biden and Democrats go all in and addresses the attack on voting rights, America's multiracial democracy may come to an end, ironically,  during a Democrat's presidency.

The Big Lie

As the 2020 vote was being tallied, GOP operatives and Trump supporters, incited by the Liar-in -Chief's baseless claims of election fraud, descended on polling places to stop the count.  When intimidation of poll workers proved unsuccessful, the next targets were the officials who certified the vote  At no time did anyone in the GOP leadership stand up to the Big Lie and say "this is wrong,"  In fact, the election night putsch was a replay on steroids of the Florida 2000 election, the so-called "Brooks Brothers Riot", albeit without the corporate attire. [sidebar]

More was to follow:

• In the ensuing weeks, Trump's legal team entered more than 60 lawsuits trying to overturn the election, losing all but one of them.  

• In Michigan, the two Republican canvassers in Wayne County (which includes heavily Democratic Detroit) refused at first to certify the vote.  But even as Trump and his allies cheered their decision, they reversed themselves two hours later and the Wayne County votes were certified.  

• Trump himself attempted to subvert the Georgia popular vote.  According to an audio recording of an hourlong telephone call, Trump pressured Georgia’s Republican secretary of state to “find” him enough votes to overturn the presidential election and vaguely threatened him with “a criminal offense.”

• In December, in what may have been the most brazen attempt to overturn the election, Texas asked the Supreme Court to declare the elections in four states that Joe Biden turned from Republican in 2016 to Democrat in 2020 (Wisconsin, Michigan, Pennsylvania, and Georgia) were unconstitutional.  Instead of protesting this ridiculous and dishonest lawsuit, attorneys general from 17 states joined the suit along with more than 120 Republican members of the House.  The Supreme Court threw the case out.

*The passage of the Voting Rights Act of 1965 assured, for the first time in American history, the right of every citizen to vote regardless of race.  By outlawing discriminatory voting practices and enforcing the Fifteenth Amendment to the Constitution, America finally became a multiracial democracy with universal suffrage. 

**The Tennessee statute imposed civil penalties for groups that unintentionally file incomplete voter registration forms and imposed criminal sanctions on organizers who don’t attend training sessions run by local officials and on groups that fail to mail in voter registration forms in a short 10-day window.  After lawsuits and voter outcry, the Tennessee legislature repealed the most onerous provisions in April 2020 - only to make another stab at disenfranchisement by making it difficult to cast an absentee ballot in the pandemic, instituting penalties targeting voter outreach, and maintaining their felony disenfranchisement rules while at the same time making it a felony to participate in certain protest actions, including camping out on state property.

[1] Brennan Center for Justice - 1 [2] Brennan Center for Justice - 2

Is our floundering and flawed democracy going down?

POSTED FEBRUARY 19, 2022

For the sixth straight year, the UK-based Economist Group's Democracy Index rated* the United States as a "flawed democracy."  In 2021, the United States placed 26th on the Democracy Index list - ironically just below Chile, whose democratically-elected leader the United States helped overthrow in 1973**, and just above the former Soviet Socialist Republic of Estonia.  

Considering the presidentially-fueled January 6 Insurrection and the Big-Lie-based vote suppression and vote nullification legislation, I am surprised that our nation ranks even as high as it does.  

Progressive congresswoman Alexandria Ocasio-Cortez of New York believes the Republican-led pressure on political systems has become so great that there is “a very real risk” democracy will cease to exist in the US within a decade. [1]  In a recent interview published in New Yorker magazine, she characterized efforts by Republican legislatures around the country to restrict voting rights as the “opening salvos” in a war on democracy, which she said could result in a return to the Jim Crow-era disenfranchisement of racial minorities.  [link below left]

Saving democracy is a noble cause.  To do so, we need to understand the elements that have brought us to this point.  

Vote Suppression and Nullification

The "opening salvos" are not really the opening salvos.  They are just the latest in the voter suppression movement that has been the GOP national strategy since the election of Barack Obama.  Enabled by a stunning series of decisions by the conservatives on the John Roberts Supreme Court, Republican state legislatures have critically endangered America's 57-year experiment in multiracial democracy.  With federal courts handcuffed by the Supreme Court and with state courts controlled by conservatives who issue rulings like the Pennsylvania Commonwealth Court's decision declaring expanded mail-in voting unconstitutional, the only answer is a new Voting Rights Act.  Unless moderate Democrat Kristen Sinema and conservative Democrat Joe Manchin can be convinced to vote for filibuster reform within the next 10 months, the current congressional effort to restore voting rights is dead.

The greatest attack on voting rights since the end of Reconstruction - June 17, 2021

SCOTUS completes its destruction of the Voting Rights Act - July 2, 2021

Lies

“If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.” 

- Joseph Goebbels, Nazi Minister of Propaganda

If deliberate voter disenfranchisement poses the greatest threat to American democracy, the Post-Truth era ushered in by Donald Trump is the second greatest.  Lies have been hallmarks of authoritarian regimes since the 20th century.  The resulting mass delusion - exhibited currently in continued belief in the Big Lie by a majority of Trump supporters - makes anything possible.  A misinformed electorate is a democracy killer.  Joseph Goebbels understood that well, adding that dissent must be suppressed to maintain the lie.  The Republican Congressional Leadership's recent castigation of two Republican congressmembers who are participating in the House January 6 investigation along with the declaration that the Insurrection was "legitimate political discourse" is as reprehensible as it is intimidating to actual "legitimate political discourse."  Despite Mitch McConnell's objection to the House Republicans' actions, it is clear that there is now only one major political party in the United States committed to democracy. 

Punishing teachers who tell the truth about race and history

In her New Yorker interview, which focused on voting rights, AOC also touched on the takeover of school boards by conservative activists.  “You have the complete erasure and attack on our own understanding of history, to replace teaching history with institutionalized propaganda from white nationalist perspectives in our schools. This is what the scaffolding of Jim Crow was."  Banning of books such as Dear Martin and Maus is a symptom, but there are even more disturbing measures in place.

One example: teachers in New Hampshire are protesting the vague language of recently passed legislation that limits their ability to teach on racial and gender-based oppression, and may impede on discussions about U.S. history and literature.  Teachers have been on edge due to a new policy that they say punishes those who teach about oppression in America's past and present. "If you raise a generation without a moral backbone to recognize oppression, to recognize exclusion, to recognize a racial supremacy, then you raise a generation that will be amoral when they become the leaders," said Ryan Richman, a teacher in Plaistow, New Hampshire. "We'll have no sense of right or wrong, because we have deemed that even looking at ourselves in the mirror and recognizing that the realities of the past are criminal." [2]

Dear Martin and the battle over diversity, critical thinking and the African-American experience (Feb 1)

Militarism and its dangers: 60 years of war

"Every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed." - President Dwight D. Eisenhower

Posting at TomDispatch, retired Air Force lieutenant colonel and historian William Astore channels his inner Eisenhower and reminds us of the threat that militarism poses to a democracy. [link below right]  President Eisenhower, who warned us of the dangers of the emerging military-industrial complex,  also reminded us of the hidden costs of war - the theft, as he called it, from the real needs of the people.   The Supreme Commander of the Allied Expeditionary Force in Europe during World War II and a five star general, Eisenhower knew well what was just over the horizon.  

William Astore reflects that America has been at war in one form or another for the entire 60 years of his life, that the military-industrial complex has become a fact-of-life, gobbling up trillions of dollars in disastrous unnecessary wars, and that may have something to do with the decline of democracy: "All those trillions of dollars consumed in wasteful wars have helped foster a creeping pessimism in Americans. A sign of it is the near-total absence of the very idea of peace as a shared possibility for our country. Most Americans simply take it for granted that war or threats of war, having defined our immediate past, will define our future as well."

While war has proved a boon to the fortunes of some, it has not been of any benefit to the many.  Astore continues, "A stagnant, shrinking, or slipping middle class is likely to prove politically reactionary as pessimism replaces optimism and protectionism replaces opportunity. In this sense, the arrival of Donald Trump in the White House was anything but a mystery and the possibility of an autocratic future no less so."

Astore alludes to James Madison's warning that no nation can protect its freedoms amid constant warfare, and I'll close with President Madison's own words: 

"Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other...The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare." - James Madison

Notes

*To determine the ratings for its Democracy Index, the Economist Group looks at five categories: electoral process and pluralism, civil liberties, functioning of government, political participation, and political culture.

**Before the 1973 coup d'état, Chile had been hailed as a beacon of democracy and political stability, having held democratic elections since 1932.  The coup followed a period of social unrest and political tension between the opposition-controlled Congress of Chile and the socialist President Salvador Allende.  On September 11, 1973, Allende was overthrown by the armed forces and national police. The United States government through the CIA had worked to create the conditions for the coup, paying between $6.8 and $8 million to right-wing opposition groups to "create pressures, exploit weaknesses, magnify obstacles" and hasten Allende's ouster.  After the coup, the United States promptly recognized the junta government and supported it in consolidating power. The junta government of General Pinochet committed widespread crimes in the ensuing 17 years.  The ex-dictator was indicted for human rights abuses for the second time in 2004. 

Sources: [1] The Guardian, [2] ABC News

Moore v. Harper: is the Supreme Court about to allow vote nullification by state legislatures?

POSTED DECEMBER 1, 2022

On December 7, the US Supreme Court will hear oral arguments in Moore v. Harper.  At first glance, the case looks like "just" another redistricting* case.  In actuality, it is the latest serious threat to democracy in America.  An extremist opinion in a ruling for the plaintiffs could enshrine a version of the vote nullification concept at the heart of the January 6 Insurrection.  Such a ruling could allow state legislatures to declare the winner of a federal election without regard to popular vote, the state's Constitution, its Governor or its Supreme Court. Although the case is based on the widely debunked "independent state legislature" theory, the outcome is uncertain given the partisan and democracy-adverse conservative majority on the Supreme Court.  The three extremists on the Court - Thomas, Gorsuch, and Alito - have already indicated their support for this misinterpretation of the Constitution.

Background

Last year, North Carolina’s Republican-dominated state legislature passed, on a party-line vote, an extreme partisan gerrymander to lock in a supermajority of the state’s 14 congressional seats. The gerrymander was so extreme that an evenly divided popular vote would have awarded 10 seats to the Republicans and only four to the Democrats. 

Because the U.S. Supreme Court had previously ruled in Rucho v. Common Cause (June 2019) that federal courts cannot hear partisan gerrymandering cases, North Carolina voters contested the map in state court, contending that the map violated the state constitution’s “free elections clause,” among other provisions. In February 2022, the North Carolina Supreme Court agreed with the voters and struck down the map, describing it as an “egregious and intentional partisan gerrymander . . . designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.”  

Two North Carolina Republican legislators subsequently contested the ruling, and the United States Supreme Court has agreed to hear the case.  In urging the Supreme Court to reinstate the gerrymandered congressional map, the North Carolina legislators are relying on an untenable misreading of the Constitution’s Elections Clause known as the independent state legislature theory.  Proponents of the independent state legislature theory claim the Elections Clause gives state legislators near-exclusive authority to regulate federal elections, prohibiting any other state entity — like state courts or governors — from placing checks and balances on that power.

All the things wrong with the independent state legislature theory

The independent state legislature theory runs contrary to the constitutional text, history, practice, and precedent. 

• The framers of the Constitution distrusted state lawmakers, so much so that when they drafted the Elections Clause, they insisted that Congress retain the ultimate power to set the rules for federal elections. The framers did not establish a regime that would permit state legislatures to regulate federal elections without the ordinary checks and balances that apply to state lawmaking power. 

• State practice, from the country’s founding to today, also refutes the theory.  In every state, the state legislature is and has always been subject to the system of checks and balances that includes adherence to the state constitution, interpretaion by the courts, and veto power of the executive.

• The theory makes no sense: it would be absurd for a state legislature to be allowed to violate the very state constitution that created it.

• Other problems doom the theory, as an avalanche of recent scholarship demonstrates.**  

• The Supreme Court has repeatedly rejected the theory for over a century, including as recently as 2015 and 2019.

Forty-eight amicus briefs for the defendant have been filed, arguing in favor of upholding the North Carolina Supreme Court’s decisions to strike down the state’s gerrymandered congressional map and redraw it and against any embrace of the ISL theory. Some of the notable groups that submitted amicus briefs include: ACLU, ACLU of North Carolina, League of Women Voters of the United States, National Association of Counties, National League of Cities, U.S. Conference of Mayors and the International City/County Management Association, Lawyers’ Committee For Civil Rights Under Law, Asian American Legal Defense and Education Fund, Latino Justice, NAACP and Native American Rights Fund, Brennan Center for Justice at NYU School of Law and Constitutional Accountability Center.

And yet...

With three justices certainly in favor of this radical misinterpretation of the Constitution's Election Clause and one (Kavanaugh) who has indicated that he finds merit in the arguments of both sides, the deciding vote may come down to Trump-appointed Justice Amy Coney Barrett, who cut her political teeth in the successful Republican effort to prevent a Florida recount in the 2000 election.   Now there was an election that really was stolen. The Supreme Court in a 5-4 party line decision prevented a recount and handed the election to George W. Bush.  [link below] 

Will Justice Coney Barrett renounce her partisanship and do the right thing by the Constitution and for American democracy?  Or will she join the radicals tossing reason, history and precedent aside to embrace the independent state legislature theory? We won't know for sure until next June but we may have an insight into her thinking on December 7.  Stay tuned.

Sources: Brennan Center for Justice, Just Security

Notes: 

*In themselves, partisan and racial gerrymandering distort the concept of one person - one vote essential to a true democracy.  I do not mean to downplay that aspect and have posted on gerrymandering in earlier posts including this one in the runup to Rucho.

**Historical research has emerged that puts the Independent State Legislature Theory at odds with the original public meaning of the Constitution. The supporters of the plaintiffs (Alito, Thomas, Gorsuch and likely Kavanaugh) claim to be originalists.  Unfortunately, they are partisan Republicans and it's unlikely that they will consider the research.  The Second Amendment SCOTUS decision is another example of originalists not following their stated legal philosophy.  Justice John Paul Stevens called District of Columbia v. Heller, which recognized an individual right to possess a firearm under the Constitution, "unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench."  In that case, the originalists averted their eyes from the plain English in the text of the Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." 

SCOTUS hears oral arguments in Moore v. Harper

POSTED DECEMBER 9, 2022

On Wednesday, the Supreme Court heard oral arguments in Moore v. Harper characterized by the media as a "blockbuster election rules case."  More than a simple gerrymandering case, it represents the greatest threat since the civil rights era to the fundamental democratic principles of one person/one vote and of the right to have that vote counted.  A ruling for the plaintiffs in Moore v. Harper could allow state legislatures to declare the winner of a federal election without regard to popular vote, the state's Constitution, its Governor or its Supreme Court.  I know it sounds insane, and yet four Supreme Court justices decided that it had merit enough for the Supreme Court to hear the case.

Moore v. Harper: is the Supreme Court about to allow vote nullification by state legislatures? (Dec 1)

"A republic, if you can keep it" - July 4

The three extremist justices on the Court - Thomas, Alito, and Gorsuch - will certainly decide for the plaintiffs.  The three moderate/liberal justices - Kagan, Sotomayer, and Brown Jackson - will certainly decide for the defendants.  Associate Justice Kavanaugh has indicated his sympathy for the "independent state legislature theory" (ISLT) at the heart of the case, while Chief Justice Roberts voted against the North Carolina legislators in the original case and wrote the majority opinion that said other branches of state government could still overrule legislators' extreme partisan gerrymanders.  So the case really comes down to Amy Coney Barrett.

It's impossible to know from the questioning during oral arguments what the final judicial decision, expected by June 2023, will be.  Nevertheless, it might be instructive to look at how the arguments went and what the justices, particularly Coney Barret, had to say.

Defense lawyers demolished the Republican arguments

Slate's Mark Joseph Stern glowingly praises the defense lawyers performance: "The three lawyers defending democracy methodically dismantled the “independent state legislature” theory from every conceivable angle, debunking each myth, misreading, and misrepresentation deployed to prop it up. They bested the conservative justices who tried to corner them, identifying faulty reasoning and bogus history with devastating precision." [link below]

Swing justices appeared skeptical of maximal ISLT...

Justices Brett Kavanaugh and Amy Coney Barrett asked questions suggesting skepticism of the maximal version of the independent state legislature theory.  Chief Justice John Roberts said that concession made by the legislature’s lawyer – who said under their theory, the governor can play a role by vetoing election rules – had undermined the Republicans’ case. (CNN)

The key vote will be Barrett's and she sounded "audibly skeptical throughout Wednesday’s arguments" from the plaintiffs. She suggested to David Thompson, who represented North Carolina’s GOP legislative leaders, that his “formalistic test” was an unworkable stab at “trying to deal with our precedent,” which cut against him.  The justice was softer on the defense, essentially asked them how the court should write a decision rejecting the ISLT, and strongly implied that SCOTUS did not even have jurisdiction to hear the case. [link below]

...but appeared to leave the door open to a narrow ruling which would still have serious consequences

The swing justices (Kavanaugh, Barrett, Roberts) all asked other questions that suggested that they could rule in North Carolina’s favor, in a way that avoided blessing the idea that state constitutions could never provide a check on state election rules.(CNN)  Such a "narrow ruling" has voting rights experts concerned: any decision that would embolden legislatures would be dangerous to democracy - especially at a time when most state legislatures are Republican majority and when a significant portion of Republican legislators are election deniers. 

The Brennan Center for Justice enumerates the dangers inherent in this "narrow" decision.  For example, a narrow ruling could still

• eliminate state courts’ power to enforce anti-gerrymandering provisions for congressional map drawing

• eliminate state constitutional provisions that make it easier to vote

• limit governors’ and election officials’ contributions to election rulemaking for federal elections, wiping out thousands of administrative policies affecting everything from voter registration, polling place locations, and vote-counting processes to voting machine procurement, audit procedures, and election security protocols.

In sum, the Brennan Center authors write, "The independent state legislature theory, in any form, poses an extraordinary threat to American elections.  The only way to avoid this chaos is for the Court to reject the theory, in all its purported forms."  

April Four

POSTED APRIL 5, 2023

"Early morning, April four

Shot rings out in the Memphis sky

Free at last, they took your life

They could not take your pride..."

- U2, "Pride (In the Name of Love)"

This past Tuesday marked the 55th anniversary of the assassination of the great civil rights and voting rights champion, the Rev. Dr. Martin Luther King Jr., who once said, “So long as I do not firmly and irrevocably possess the right to vote I do not possess myself...I cannot live as a democratic citizen, observing the laws I have helped to enact – I can only submit to the edict of others.”  

This past Tuesday was also the occasion of two events that simultaneously symbolized the dangers MLK's legacy of voting rights now faces and provided some hope for the future of a multi-racial American democracy with universal suffrage:  

In a Manhattan courtroom, an ex-President, who incited a violent attempt to overturn the results of a presidential election, was indicted on 34 felony counts of "white-collar" crime.

A thousand miles away, the people of the state of Wisconsin, which had become a case study in how to upend democracy, gave liberals a majority on the state's supreme court.  

In 1965, thanks in large part to Dr. King’s moral leadership, the Voting Rights Act was signed into law by President Lyndon Johnson, finally giving millions of African Americans the most fundamental right in a self-governing society – the right to choose their elected representatives, instead of submitting “to the edict of others.”  

Several landmark court cases decided by the conservative majority on the Supreme Court have destroyed this gold standard of the most fundamental and distinguishing right in a democracy right. 

SCOTUS completes its destruction of the Voting Rights Act (July 2, 2021)

Unfortunately, even worse may yet come.  The Supreme Court, with a 6-3 conservative majority, will decide Moore v. Harper in its current session.  A broad ruling for the plaintiffs would allow a state legislature to overturn election results regardless of the actual vote of the people, of the decisions of a state's Supreme Court, and of any action that could be taken by the state's Governor or Secretary of State.  Such a ruling would enshrine the concept of "vote nullification" at the heart of the January 6 Insurrection, the Big Lie perpetuated to this day in the minds of Trump supporters and publicly endorsed by many Republican leaders and office holders.

While Donald Trump's 34 count felony indictment has little to do with the Insurrection and the Big Lie that led to it, it is a start on making the worst president in American history accountable for his crimes.  For the first time, an ex-President has been charged criminally. The message that "no one is above the law" is one that should encourage all but the most blinded Trump supporters.  Perhaps this will encourage Georgia prosecutors investigating Trump's attempts to subvert the election there and federal prosecutors looking at Trump's role in fomenting the violent assault on the US Capitol to bring further indictments.  A caution on all this: convictions on criminal charges require a 12-0 vote by the jury.  What are the odds that a jury could be seated anywhere in the country that would not have at least one election-denying Trump supporter willing to ignore all evidence?  If nothing else the indictments would keep the Donald busy with his law team.

While Trump's felony counts are not related to his much bigger crimes of election subversion and sedition, the Wisconsin Supreme Court election has direct implications for voting rights and election integrity.   Liberals now will hold the majority thanks to Janet Protasiewicz’s trouncing her Republican opponent

Extreme gerrymandered maps and a conservative majority state Supreme Court have made Wisconsin a cauldron for both vote suppression and vote nullification.  

• In the 2012 elections, gerrymandering gave Republicans 5 of the 8 House seats even though Republicans received fewer popular votes than Democrats.  (It's even worse today with 6 of 8 House seats in the current Congress held by Republicans.)

• In 2018, former Republican Gov. Scott Walker used the lame duck session to sign bills stripping power from the newly elected Democratic governor to change policies around health care, welfare, and economic development, and to allow one of the most gerrymandered Republican-controlled legislatures in the country the right to intervene in certain cases challenging state laws.

• Since his first term began in 2019, Democratic Gov. Tony Evers has vetoed more than a dozen GOP-backed bills that would make it harder to vote. Those include ID requirements for older and disabled voters who are indefinitely confined, limits on when and where absentee ballots could be collected, and prohibiting election officials from filling out missing voter information.  Nonetheless, Republicans have prevailed in the courts, using lawsuits to outlaw ballot drop boxes and deny election clerks the ability to fill in missing information on the envelopes containing mail ballots. The Wisconsin Supreme Court’s conservative majority, which was ended by yesterday's election , routinely ruled in favor of Republicans on consequential voting decisions. 

• Republican-drawn legislative maps adopted in 2022 dilute overwhelmingly Democratic Milwaukee’s influence and nearly guarantee a Republican majority in the State Legislature.  In fact, Democrats would have to win the statewide vote by double digits just to eke out the barest majority in the Wisconsin Assembly.  That’s despite statewide races routinely being decided by narrow margins and Democrats winning the major statewide offices, including for governor, attorney general and secretary of state. 

Democrat Janet Protasiewicz’s 10 point margin of victory over Republican Dan Kelly in the Wisconsin supreme court race on Tuesday will change much of this.  Slate called it the most important election of the year and one in which Wisconsin voters took their democracy back. [link below]

Sources: AFSCME, PBS Wisconsin, Slate -1, Slate - 2

First they came for the books

POSTED APRIL 13, 2023

Banning books and controlling education are early steps on the path to fascism.  [link below] While comparisons with Nazi Germany are prone to overstatement, it is worth noting that Hitler's reign started not with death camps, but with an onslaught on education and those it deemed as undesirables.

Germany 1933

About a year and a half before Adolf Hitler completed his rise to power in Germany, the National Socialist German Students' Union began a book burning binge.  Founded in 1926 as a division of the Nazi Party, its mission was to integrate University-level education and academic life within the framework of the Nazi worldview.

Onto the bonfires went some 25,000 "un-German" books especially those by Jewish writers from Albert Einstein to Sigmund Freud, socialists, and communists, like Bertolt Brecht, August Bebel, and, of course, Karl Marx, literary and political critics of fascism and the Nazi regime, and foreigners considered advocates of social justice, such as Helen Keller targeted for championing rights for women, workers, and the disabled. 

Chile 1973

Later in the twentieth century, Chile also provides us with a case study on how to establish authoritarian rule. After the 1973 coup, led by Augusto Pinochet with U.S. support against democratically elected Socialist President Salvador Allende, "the military seized control of campuses and swept out those they felt sympathized with Allende rule," as the Christian Science Monitor put it.  Active-duty generals were appointed to run the universities and primary and secondary schools were placed under the rule of mayors appointed by Pinochet to promote full government control of classroom instruction.  Targeting educators was a priority with strict penalties imposed on what could be taught, leading to the firing of thousands of university professors and teachers, while others were forced out by sweeping cuts in educator pay.  

Implicit was the recognition that an egalitarian education system produces generations of young people who study the society they live in, think critically, and pose a major impediment to dictatorial rule. It would take 17 years until democracy finally was restored in Chile. 

USA 2023

Today's attacks on education by Republicans are in the same vein as the events in Germany and Chile.  After a coup nearly succeeded in overturning the 2020 election, we would be well advised to watch what is happening in our local school districts and more prominently in red states like Tennessee, Florida and Texas. 

• In Tennessee where one school district notoriously banned the graphic novel series "Maus" about the Holocaust, Rep. Jerry Sexton, sponsor of a bill to police school libraries, said he would burn books he considered inappropriate. 

• A Texas school district official told educators if they kept books about the Holocaust in their classrooms, they would be required to offer "opposing" viewpoints to comply with a new state law.

• On top of Florida Governor DeSantis' infamous "Don't Say Gay" and "Stop Woke Act," bills, a bill introduced in late February would bar colleges and universities from spending any money to fund educational programs or activity that promotes diversity, equity, and inclusion, and could eviscerate programs on African American, gender studies, and other vulnerable curriculum.

Last year alone, more than 1,600 books were banned from school libraries, involving 138 school districts in 32 states.  Books sympathetically portraying diversity, especially featuring LGBTQ individuals and works, including children's books, describing struggles against racism by Black, Latino and civil rights figures, and human sexuality lead the list.  Since January, 2021, reports Education Week, 44 states have introduced bills or taken other steps to restrict teaching "critical race theory" [see postscript below] or limit how teachers can discuss racism and sexism; 18 states have imposed the bans and restrictions either through legislation or other avenues. 

The people pushing to remove books from school libraries are broadening their game.  As Judd Legum and Rebecca Crosby point out,  these same activists and politicians are now pushing to ban books from public libraries as well, arguing public money should not be used to purchase "pornographic" (i.e., books dealing with LGBTQ issues) or indoctrinating materials (i.e., racial justice).  They have not yet succeeded in doing so and are now turning to a new tactic - defunding public libraries.  Details of the conservative assault on public library funding in a Texas county, the state of Missouri, and a town in Michigan are given in the link below.

Sources: Common Dreams, Holocaust Encyclopedia, Popular Information

Some wins for Democracy

POSTED AUGUST 13, 2023 (UPDATED AUG 16)

Over the past couple of months, there have been several wins for voting rights' advocates and democracy defenders.  But Republicans are fighting back, and their efforts to thwart the will of the voters and defy the decisions of the courts continue unabated.  

The Supreme Court rejected the Independent State Legislature Theory in Moore v Harper.  A broad ruling for the plaintiffs would have allowed a state legislature to overturn election results regardless of the actual vote of the people, of the decisions of a state's Supreme Court, and of any action that could be taken by the state's Governor or Secretary of State, essentially enshrining Trump's  vote nullification effort in the 2020 elections.  It also would have sanctioned extreme gerrymandering by not allowing review by states' Supreme Courts.  The vote was 6-3 with only the extremist far-right justices voting to uphold the lawsuit brought by the Speaker of North Carolina's House of Representatives. 

The Republican Response: The new Republican majority on North Carolina's Supreme Court has ruled that the state legislature, where Republicans have a gerrymandered super majority, can basically draw up any map they like.  North Carolina is a state split almost evenly between Republicans and Democrats.  Currently its representation in the House of Representatives consists of 7 Democrats and 7 Republicans. The state gained 2 additional seats as a result of the 2020 census, and the projected Republican gerrymander will make the House membership in this evenly-split state go to 11 Republicans and 5 Democrats. (ABC News)

Former President Donald Trump was indicted by a federal grand jury on four counts related to efforts to overturn the results of the 2020 presidential election. Special Counsel Jack Smith and the grand jury delivered a strong message that no one is above the law.  Trump was charged with conspiracy to defraud the United States, witness tampering, conspiracy against the rights of citizens, and obstruction of and attempt to obstruct an official proceeding.  Smith said, "The attack on our nation's Capitol on Jan. 6, 2021, was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies - lies by the defendant, targeted at obstructing a bedrock function of the U.S. government." (NPR)  The Brennan Center for Justice explains the stakes in United States v Trump in the link below left.

The Republican Response: From Trump on down through the great majority of GOP politicians to the MAGA base, chants that "the charges are political" resound in the delusional echo chamber that has become home to the GOP.  Trump's popularity is rising with each indictment, and his Republican competitors for the 2024 nomination are fading fast.  Given the need for a unanimous jury decision and the near impossibility of seating a jury without a single election-denying MAGA-land denizen, Trump will probably not be convicted on any of the counts.

The Supreme Court rejected Alabama's racially drawn gerrymander.  Although more than a quarter of Alabama's residents are African-American, only one of the state's seven Congressional districts is  majority-black.  The gerrymander was so egregious that even the Roberts Court which has done so much to gut the Voting Rights Act, could not stomach it.  

The Republican Response: GOP state lawmakers in Montgomery  defied the Supreme Court ruling by refusing to draw a second majority-Black congressional district—a rare instance of American elected officials openly refusing to abide by a federal court order.  The Alabama legislature instead adopted a new map before the Court’s deadline that retained Alabama’s single existing majority-Black district and adjusted Alabama’s second congressional district so that eligible Black voters made up just 39.93 percent of the electorate, falling well short of a majority. (The New Republic)

Ohio voters rejected Ohio Issue 1, an attack on direct democracy in that state.  The proposal put forward by Ohio Republicans would have required a 60% super majority for amendments to the state constitution.  Republicans introduced the measure to prevent a  pro-choice referendum from passing in November.  Issue 1 was rejected by Ohio's voters 57% - 43%.  So far this has been an unmitigated victory for democracy, and it's hard to see how Republicans can reverse the vote. See link below right for the Washington Post analysis.

The U.S. Court of Appeals for the Fifth Circuit held that Mississippi’s lifetime voting ban for people with disqualifying felony convictions who have completed their sentences is cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution. The decision overturns Section 241 of the Mississippi Constitution of 1890, which imposed a lifetime voting ban for citizens who have completed their sentences for certain felony convictions. The right to vote will be restored to tens of thousands of Mississippians following the decision.  Republicans have not yet mounted an appeal. (SPLC)

Aug 16 Update

Late on Monday, a Georgia Grand Jury handed down a 41-felony count indictment against former President Donald Trump and 18 co-conspirators for their attempts to overturn the 2020 election.  The 13 counts that apply to Trump fall into the following categories: one count of violating the state’s Racketeer Influenced and Corrupt Organizations Act, commonly known as RICO; six counts of making false statements and writings, filing false documents or conspiring to do so; three counts of soliciting the “violation of oath” by a public officer; two counts of conspiring to commit first-degree forgery; one count of conspiring to impersonate a public officer.  NYTimes summarizes Team Trump's two months of trying to overturn the election in Georgia here, noting that "...the Georgia case assembled by Ms. Willis offers a vivid reminder of the extraordinary lengths taken by Mr. Trump and his allies to exert pressure on local officials to overturn the election — an up-close portrait of American democracy tested to its limits."

The assault on democracy continues

POSTED SEPTEMBER 7, 2023

Tom Nichols, writing in The Atlantic [link below], warns that "Democracy is under attack around the world and in the United States, the institutions of democracy are still functioning, but not for long if enough Americans continue to support authoritarianism."  An incredible three-quarters of Republican voters support the seditionist Donald Trump as their presidential candidate in 2024.  Nichols describes what we may have to face if Trump beats Biden:

"If Trump returns to the Oval Office, he and his underlings will set up a system designed to set up a series of cascading democratic failures from Washington to every locality they can reach.  They intend to pack courts with judges who are loyal to Trump instead of to the Constitution. They want to destroy an independent federal civil service by making all major civil servants political appointees, which would allow the right to stuff every national agency with cronies at will. They want to neuter independent law-enforcement institutions such as the FBI, even if that means disbanding them. They will likely try to pare down the senior military ranks until the only remaining admirals and generals are men and women sworn not to the defense of the United States but to the defense of Donald Trump..."

Too overblown? Too much fear-mongering?  Consider what the Right has already done to the Federal courts, the violent rhetoric against the FBI and others after the classified document search of Trump's Mar-a-Lago resort, and Alabama Republican Senator Tommy Tuberville's holding up promotions of 650 senior military officers. (Yes, that Tommy Tuberville - he of the racist diatribe and defense of white nationalists.)

Speaking of Alabama, you have to hand it to Alabama's state legislators.  The Supreme Court rejects their racially-gerrymandered map and tells them exactly what they need to do to get in compliance - make a second majority black Congressional district.  The Republican-controlled legislature defies the Court and draws a second one with a Black voting age population of just under 40 percent.  On Tuesday, a three-judge panel of Federal justices ruled against the legislature and say that they will now draft new congressional lines for Alabama since the lawmakers refused to comply. In blocking the newly drawn congressional map, the three-judge panel wrote that they are “deeply troubled” that Alabama lawmakers flouted their instruction to create a second majority-Black district or something close to it. The panel directed a court-appointed special master to submit three proposed new maps by Sept. 25. (ABC News)

Voter suppression is alive and well

With Trump assured of the Republican nomination and Biden's job approval rating at an anemic 39%, there is a reasonable chance that the nation will elect a 31-felony-indicted insurrection-promoter with authoritarian leanings as their next president.  Wait, you say, didn't Biden thump Trump?  The electoral college vote was 306-232.  But 37 of those electoral college votes were in three states (Georgia, Wisconsin, Arizona) where Biden won by a total of just over 40,000 votes.  A swing of 10,000 - 20,000 votes in each of these Republican-controlled states would would have made it 269-269.  Add to this that, as a result of the 2020 census, "Biden states" lost 3 electoral votes and "Trump states" gained 3 electoral votes, and Trump emerges with a 272-266 electoral college victory.

Remember when all that we were concerned about were the strict voter ID laws being used to suppress the vote of Democratic constituencies?   Those seem like the good old days.  The conservative-majority Supreme Court has since gutted the Voting Rights Act, enshrined partisan gerrymandering, and upheld the often error-prone voter roll purges being conducted in Republican-controlled states, particularly in the South.  [link below]

SCOTUS completes its destruction of the Voting Rights Act (July 2, 2021)

In Georgia which promises to once again be a key swing state, over 191,000 people have been purged because they did not vote in the 2020 or 2022 elections. The Republican Secretary of State Brad Raffensperger published the names of those who were purged and voting rights groups are fighting back. The New Georgia Project took the Secretary of State’s list and matched the names with its voter list in order to contact voters and inform them of what was occurring. They have argued that voting is an inherent right that should not be eliminated because a person failed to vote in a couple of elections.

Meanwhile at the local level, the Right has added some new tactics to its arsenal of voter suppression tactics: inadequate polling place resources that cause voters to wait in inexplicably long lines, the abrupt closure of polling sites, intimidation at the polls, and cuts to early voting periods.  

It's not just in the Deep South that Republicans are intent on thwarting the will of the voters and maintaining power that they haven't earned.  In the key swing state of Wisconsin, the Republican Party is moving to impeach the newly elected state Supreme Court Justice, Janet Protasiewicz, before she even hears a single case.  Earlier this year, Protasiewicz won over her conservative opponent by a margin of 11 points.  Her victory gave liberals the majority on Wisconsin's Supreme Court for the first time in 15 years, and the Republican-gerrymandered state map which has given the GOP a 6-2 edge in the House in this evenly divided state is in danger.

Fake electors and other subversions

Last but not least, although SCOTUS struck down the independent state legislature theory, states are attempting to open the door to the vote nullification that was at the heart of Trump's criminal attempt to overturn the election.  In January 2021 in the key swing state of Arizona, a GOP lawmaker introduced a bill that would give the state legislature the power to revoke the secretary of state’s certification “by majority vote at any time before the presidential inauguration.”  Fortunately the bill did not pass.  

When it became clear that Trump was likely to lose the election, he and his supporters began laying the groundwork to overturn the outcome. They focused on six battleground states: Michigan, Georgia, Arizona, Pennsylvania, Wisconsin, and Nevada. They sowed conspiracy theories about fraud; vilified and threatened honest election officials; encouraged local and state election officials to ignore their legal obligations; sent fake electoral votes to Congress; and even attempted to disrupt the ministerial process by which Congress counted these votes and certified Biden as the winner.  

The Brennan Center for Justice says that of these six "fake elector" states, Michigan has made the most progress in strengthening its election system to prevent subversion.  But they also note that while state officials in these states held firm and certified valid results in 2020, the margins were slim:

"A member of the Michigan board of canvassers switched sides at the last minute to certify the result — the first non-unanimous vote in Michigan history. Legislators in several states interfered with the process. And the Wisconsin Supreme Court came within one vote of disrupting certification." 

The Brennan Center has recommendations for these six swing states on how to prevent a repeat of the 2020 subversion. [link below]  It is a reminder to us all that the battle for democracy is not over yet.  

Not just democracy...our humanity "dies in darkness"

POSTED JANUARY 19, 2024

"Democracy Dies in Darkness" was the first slogan to be officially adopted by The Washington Post in its 140-year history.  Unveiled in February 2017, the phrase had been used internally within the company for years before being officially adopted.  According to the newspaper, the phrase was popularized by investigative journalist Bob Woodward.  Woodward and fellow Post journalist Carl Bernstein broke the Watergate story that eventually led to the resignation of President Richard Nixon. 

Enshrined in the Constitution's Bill of Rights, freedom of the press and freedom of speech are two of America's basic values.  

Freedom of the press shines light on knowledge that the corrupt and the criminal would rather you not know and on actions for which the perpetrators would rather not be held accountable.  

Freedom of speech allows us to petition our government when our rights are violated and to speak our consciences when our principles and those of our country are violated.  "Speaking truth to power", a phrase credited to the black Quaker and Civil Rights Movement leader Bayard Rustin, is one of the most courageous acts that a citizen can do.  

Over the past few months, several stories coming out of Israel's US-supported war on Gaza illuminate how not just democracy, but our principles and our very humanity die in darkness.  

The Palestinian Exception to Free Speech [1, 2]

There's a genocide unfolding in Gaza.  It's being carried out with American bombs and American weaponry against one of the most vulnerable and oppressed populations in the world.  In the West, the response to calls for a humanitarian ceasefire and in support of Palestinian human rights has been a repression of free speech not seen in this country for 70 years.

In the US, student groups have been banned, lectures have been canceled, a congressmember has been censured, and university presidents have been forced to resign for showing (or for allowing others to show) solidarity with the Palestinians. Artists, writers and other cultural workers in the United States and Europe have faced a backlash after expressing solidarity for Palestine. Talks and performances have been canceled, artworks de-installed, exhibits removed, and livelihoods threatened.  One of these “canceled” cultural workers is renowned Palestinian American artist Samia Halaby, whose first U.S. retrospective was canceled by her graduate alma mater, Indiana University, after she criticized Israel’s bombardment of Gaza. Her interview with Democracy Now! is linked below left.

In some European countries, public support for Palestine and the Palestinian cause was criminalized, with countries such as France, Germany, the United Kingdom, and Hungary restricting pro-Palestinian political speech. Germany banned fundraising, the displaying of the Palestinian flag and the wearing of the keffiyeh.  

It's not a new phenomenon here in the US.  For decades, any criticism of Israel's system of apartheid, its oppression of the Palestinians, or its violations of international law has been attacked as "antisemitism".  Of course it is not.  It is courageous people speaking truth to power.

Still, many Americans are being taken aback by the virulence of the current attempt to suppress pro-Palestinian sentiment.  A recent UK Guardian article ("Solidarity with Palestinians is not hate speech, whatever would-be censors say") quotes a leading expert on freedom of speech and American constitutional law:

“The scale has surprised me and the intensity of it,” observes Genevieve Lakier, a professor of law at the University of Chicago, and a leading expert on freedom of speech and American constitutional law. She adds that “It feels like a new McCarthyism… a repression of speech that we haven’t seen for a while.” People are being sacked and cancelled not for “promoting violence” but “calling for a ceasefire” and being “critical of Israel”. The meaning of “hate speech”, Lakier argues, has become expanded “to include speech that in my view is totally legitimate, often pro-peace speech”. It is an attempt to redraw the moral lines around what is judged acceptable to invalidate Palestinian perspectives.

Israel's War on Journalists [3, 4, 5, 6]

If government, cultural and educational institutions are figuratively silencing Palestinian voices, the IDF is literally silencing the journalists reporting on the Israeli war crimes - targeting and killing them, wounding them and leaving them to die.  According to international law, journalists, just like medical workers, are protected in war zones.  Killing them is a war crime.  

In a recent, particularly heinous action, Al Jazeera cameraman Samer Abudaqa bled to death from his wounds as Israeli forces prevented medical workers from reaching him for about five hours, despite the desperate entreaties of many foreign journalists to save the life of their colleague. 

Gaza is now the deadliest place on Earth for media workers. By some estimates, over 110 journalists have been killed there since Israel began its assault on the territory following the October 7 Hamas attack, and the Committee to Protect Journalists says more journalists were killed in the first 10 weeks of the war than have ever been killed in a single country over an entire year.

The Palestinian Journalists’ Syndicate says the union has evidence that many journalists whose deaths it has documented “were deliberately and specifically targeted by surgical Israeli strikes against them.”  Citing the unprecedented number of Palestinian journalists killed in Gaza,  the PJS has filed an amicus brief in support of the Center for Constitutional Rights lawsuit * in US Federal Court.  

Would the killing of journalists in Gaza be as bad if those responsible for killing Palestinian-American journalist Shireen Abu Akleh in May 2022 been held accountable?  Perhaps, perhaps not.  What is clear is that the United States helped Israel whitewash Shireen's killing by the IDF, again signaling that the US would not condemn or even hold Israel accountable for violations of international law. [Link below center. The award-winning documentary The Killing of Shireen Abu Akleh can be found here.] 

The Senate's Shame [7, 8]

Lack of accountability has led to decades of Israeli violations of human rights and international law.  Israel proceeds with impunity because the United States can be counted on to stop any action or investigation that would hold them responsible.  Our government's blind support of Israel was on display in recent months as the US voted "no" vote on a UN General Assembly resolution for a humanitarian ceasefire and then watered down a Security Council resolution on humanitarian aid to the point of making it nearly meaningless.   South African apartheid was not ended until the United States joined the rest of the world in condemning it.  Israel will continue to flaunt international law until the day the United States stops enabling it.  We have the leverage. Tens of billions of dollars of military aid has been sent to Israel without conditions.  All that is needed is a 'stop the war crimes and end apartheid or the aid stops'.  

On Tuesday, Senator Bernie Sanders made a simple request of the United States Senate. In the face of Israel’s overwhelming military assault on Gaza, which has left more than 24,000 people dead, severely injured tens of thousands more, and displaced almost 2 million men, women, and children, Sanders asked his colleagues: “Do you support asking the State Department whether human rights violations may have occurred using U.S. equipment or assistance in this war?” [link below right]

In spite of the clear responsibility to know, at a bare minimum, what is being done with the weapons that we supply to a foreign state, the Senate rejected Sanders' resolution 72-11.  Sanders was joined by one Republican, Rand Paul of Kentucky, and nine Democrats - Laphonza Butler of California, Martin Heinrich of New Mexico, Mazie Hirano of Hawaii, Ben Ray Lujan of New Mexico, Ed Markey of Massachusetts, Jeff Merkley of Oregon, Chris Van Hollen of Maryland, Elizabeth Warren of Massachusetts, and Peter Welch of Vermont - in his efforts to open a debate on the oversight issues. 

Let that sink in. As a genocide continues with our tax dollars,  the great majority of the US Senate voted to allow our complicity in it to remain unquestioned and without oversight.  After the vote, Win Without War President Stephen Miles released a statement:

“By voting to halt debate on Senator Sanders’ 502B resolution, S.Res.504, the Senate ducked its responsibility to ensure that respect for human rights and protection of people caught up in conflict remains at the center of U.S. foreign policy... [The] scale of destruction in Gaza, in addition to the thousands on the street calling for an end to the war, will force this debate back onto the Senate’s agenda sooner or later. In the not-too-distant future, even those who opposed this resolution today will act confused at how a majority of the Senate failed to pass such a straightforward request for information."

We can only hope that Miles is right - that the Senate comes to its senses and that America returns to its professed values, ensuring "that respect for human rights and protection of people caught up in conflict remains at the center of US foreign policy,"

Sources: [1] UK Guardian [2] Democracy Now! - 1 [3] Democracy Now! - 2  [4] Democracy Now! - 3  [5] The Intercept  [6] Democracy Now! - 4  [7] The Nation [8] Win Without War

*The CCR lawsuit accuses President Joe Biden, Secretary of State Antony Blinken, and Secretary of Defense Lloyd Austin of failing to “prevent an unfolding genocide” in Gaza. 

The voting rights battle: 2024

POSTED JANUARY 21, 2024

Fourteen years ago today, on January 21, 2010, the John Roberts Supreme Court issued the first of a series of decisions that have undermined the most basic right of a democracy, the right to vote in a free and fair election.  Its Citizens United decision declared campaign spending a form of free speech, entitling corporations and others to spend essentially unlimited money in whatever way they liked.  The decision opened the floodgates for unlimited "dark money" -  funds raised for the purpose of influencing elections by nonprofit organizations that are not required to disclose the identities of their donors.

In 2013, SCOTUS's Shelby v Holder decision gutted the Voting Rights Act of 1965 and gave the green light to voter suppression laws - already in full swing in Republican-held states as effective deterrents to voting in communities of color.  America's multiracial democracy, which had existed for less than 50 years, was in danger of crumbling.

In 2019, the John Roberts court completed its trifecta of voting rights abuse by upholding the right of state legislatures to draw election maps to favor their political party.  The "one person-one vote" mantra of democracies was silenced for the foreseeable future.  Projections for North Carolina, which is about evenly split between Democrats and Republicans, show a likely 11-4 Republican advantage in the 2024 elections.

Three years ago, a mob, incited by the President of the United States, descended on the Capitol Building in Washington in a violent attempt to stop the ratification of the Electoral College vote and overturn the 2020 presidential election.  Inspired by the Big Lie of voting fraud, it took the attack on voting rights to the next level.  Not only will we try to stop you from voting, we will nullify your vote when it is not the same as ours.

On November 5th, Americans will go to the polls to vote in the first presidential election since the  January 6 Insurrection.  Barring a major catastrophe, the two principals will be the same as in 2020: a now-twice-impeached, multiply-indicted Donald Trump (approval rating 42%) vs. a domestically sound but foreign policy abhorrent Joe Biden (approval rating 39%).   

As for the closely divided Congress:

The House is currently held by Republicans with a 219-213 majority. The post-census redistricting maps, which could determine the control of the House, are going through the courts now.  Politico estimates that so far "post-2022 redistricting has likely netted Republicans two or three seats. But depending on how the final maps are configured, that number could change yet again — and even perhaps tilt the field, ever so slightly, toward favoring Democrats."

In the Senate, where Democrats hold a slim two vote majority, thirty-three seats are up for election in the Senate.  This year, the Democrats must defend 23* Senate seats; Republicans, just 10.

Some observations on the upcoming election and the state of voting rights in 2024:

As in all elections, campaign spending and voter turnout will be key.  

• In the 2022 election cycle, 93% of the House races and 82% of the Senate seats were won by the candidate who spent the most money. The most interesting "money story" of 2024 will play out in the Democratic primaries where the American Israel Political Action Committee announced it will spend $100 million to unseat progressives who defend Palestinian human rights. 

• Trump's base is more enthusiastic than Biden's base.  Trump trounces all his Republican competition handily. Meanwhile Biden’s one-sided “I stand with Israel” policy is losing him countless young activists and racial justice organizers who mobilized for him against Trump in 2020. In Michigan and other swing states, Arab and Muslim activists who detest Trump have said they won’t vote for Biden, let alone mobilize for him.  

As in all elections since the election of Barack Obama in 2008, Democrats will be battling Republican voter suppression laws and tactics. 

• How could a black man win the Presidency? Claiming their desire to stop non-existent** voting fraud, Republicans went on a nationwide spree to make it harder for people, especially people of color, to vote.  Below left is a link from a WITW September 2020 post describing the state of voting rights at that time.  All of the tactics in play then are still in play now.  If anything, things have gotten worse.  

• One recent story: On January 2, a federal judge found that the right-wing group True the Vote’s effort to cancel over 360,000 voter registrations ahead of the 2021 U.S. Senate runoffs in Georgia did not intimidate voters in violation of the Voting Rights Act. The right-wing group's effort included “[offering] a $1 million ‘bounty’ for reports of voter fraud…[recruiting] Navy SEALS to confront voters and poll workers… and, with the help of individual Defendants and state Republican Party officials, [launching] the largest mass challenge effort in Georgia history, targeting hundreds of thousands of voters just two weeks before the January 2021 runoff election.”

One new wrinkle this year: the 2024 presidential election will be the first in which state laws enacted since the Insurrection could override the will of the people.  At the heart of the January 6 Insurrection was the desire to nullify the votes of non-Trump voters under the Big Lie guise of voter fraud.  In numerous states, this possibility - that one's vote could be nullified - is now enshrined in law.  The Brennan Center and other voting rights advocates call them "election interference" laws.  

• The year of the Insurrection was an especially fertile time for these laws [link below left], but the efforts at election interference continue to this day.  

• The Brennan Center's 2023 roundup notes that at least 6 states enacted election interference laws in 2023, ranging from the "extreme oversight" of Harris County elections by the politically appointed secretary of state to imposing criminal penalties on election workers for routine election administration or inadvertent errors. [table below right]

Notes: 

*Three of the 23 'Democratic' seats are held by independents who caucus with the Democrats.

**According to the Brennan Center, the rate of in-person voter impersonation is extremely low: only 0.00004% of all ballots cast. It’s worth noting that this rate is even significantly lower than other rare forms of voter fraud, such as absentee ballot fraud, which voter photo ID laws do not address.  Out of 250,000,000 votes cast by mail in 2020, there were 193 criminal convictions. By those numbers, a person is more likely to be struck by lightning than they are to commit voter fraud. (League of Women Voters)