Subtitle: Gilead is almost here. It can be stopped.
The so-called Republican Party supports Donald Trump’s Big Lie that the 2020 election was stolen, despite the reality that no factual evidence to support that claim has ever been produced in dozens of court cases or “audits,” not even in “audits” run by Trump’s most committed followers. Trump’s lawyers have been sanctioned for failing to properly research the factual basis for the election challenges they filed. This led to Republican-controlled state legislatures passing laws designed to suppress Democratic votes and, failing in that, to permit those same legislatures, or their appointed election hacks, to overturn the votes of their citizens and award the presidency to Donald Trump in 2024.
Such a step would, obviously, signal the end of American democracy and the establishment of a dictatorship by what purports to be “lawful means.” It might also/should lead to a second civil war. [Aside: if Republicans’ lust for power should lead to a civil war, what do you suppose our adversaries, like Russia, will do while our national government is distracted in such a struggle?]
While the American Civil Liberties Union and others are filing lawsuits to challenge many of these actions, it is far from clear that the courts will intervene. The bedrock principle of separation of powers provided for in the Constitution will then also cease to exist. America as we know it will cease to exist. The Republic of Gilead will have arrived in America. If you don’t recognize that phrase, please read, at once, The Handmaid’s Tale (1985) by Margaret Atwood. If you want to see what that looks like, read some of the stories from Tennessee where religion is now being used, under state law, to permit discrimination in delivery of adoption services. https://bit.ly/3qQNSVJ
There is a partial solution, and it should be adopted immediately. The Constitution, in Article I, Section 4, Clause 1, states that the,
Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations …. [bold face added by me throughout post]
It is time for the federal government to stop playing whack-a-mole with the states. The federal government should take full control of the process by which the national legislature is elected. Such a step would not, by itself, prevent the states from trying to tilt the playing field for other offices but it would make it much more difficult. If done right, it would establish a very high barrier against interference in the presidential election.
There is no ambiguity in that conferral of federal power. The National Constitution Center agrees:
Although the Elections Clause makes states primarily responsible for regulating congressional elections, it vests ultimate power in Congress. Congress may pass federal laws regulating congressional elections that automatically displace (“preempt”) any contrary state statutes, or enact its own regulations concerning those aspects of elections that states may not have addressed. The Framers of the Constitution were concerned that states might establish unfair election procedures or attempt to undermine the national government by refusing to hold elections for Congress. They empowered Congress to step in and regulate such elections as a self-defense mechanism. [https://bit.ly/3GnXRay]
To the same effect, a group of constitutional scholars filed a friend-of-the-court brief in Shelby County v Holder, 570 U.S. 529 (2013), the case in which the Court eventually gutted the Voting Rights Act of 1965:
… the Framers wanted to make sure that state and local officials couldn’t undermine federal elections. [https://bit.ly/3rbVyRp]
Further, the Supreme Court itself has held that,
the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints [quoted favorably from U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779 (1995) in Cook v Gralike, 531 U. S. 510, 523 (2001)]
The Court made clear that,
“manner” of elections as we understand it, … in our commonsense view that term encompasses matters like “notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns. [case cites omitted]
Justice Kennedy concurred in the Court’s opinion, but added this:
A State is not permitted to interpose itself between the people and their National Government as it seeks to do here. Whether a State’s concern is with the proposed enactment of a constitutional amendment or an ordinary federal statute it simply lacks the power to impose any conditions on the election of Senators and Representatives, save neutral provisions as to the time, place, and manner of elections pursuant to Article I, §4 ….
The dispositive principle in this case is fundamental to the Constitution, to the idea of federalism, and to the theory of representative government. The principle is that Senators and Representatives in the National Government are responsible to the people who elect them, not to the States in which they reside. [emphasis added]
These principles governing the scope of federal power over elections for Congress are very longstanding:
It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns — in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved. And these requirements would be nugatory if they did not have appropriate sanctions in the definition of offenses and punishments. [Smiley v Holm, 285 U.S. 355, ___ (1932)]
That should be enough to settle the question whether the states can establish rules that prevent Congress from regulating federal elections if it chooses to do so. They can’t.
The argument for federal intervention seems conclusive until one encounters the Shelby County case that held unconstitutional the pre-clearance provisions of the Voting Rights Act of 1965 (the Congressional renewal of 2006) in one of the worst instances of judicial overreach and legislating by the Court in its history. The 5-4 majority opinion was written by Justice Roberts, the current Chief Justice.
In Shelby County, the Supreme Court held that the pre-clearance provisions of the Voting Rights Act (states with a history of racial discrimination could adopt no law on voting until advance-approved by the federal government) were unconstitutional. This was so, the Court said, because the problem at which they were directed had disappeared and that a “current problem” was essential to a law that was such a drastic departure from the principles of federalism whereby the states ran the election process.
The Court’s central reasons for this grotesque outcome were, in my opinion, a “conservative” hostility to the very constitutional principles the majority purported to uphold. The opinion’s opening lines reveal this in Roberts’ characterization of section 5 as “a drastic departure from basic principles of federalism” and of section 4 as “an equally dramatic departure from the principle that all States enjoy equal sovereignty.” The cart that follows that horse had nowhere to go but oblivion.
The Court ignored entirely the Constitution’s empowerment of Congress to regulate by direct action the election of members of Congress, claiming that
“the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.”
That is simply wrong. The Tenth Amendment to the Constitution says,
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The “powers … delegated to the United States” plainly include Article I, Section 4, Clause 1 explicitly empowering Congress to regulate Congressional elections.
The Court thus completed its elevation to quasi-legislature, eviscerating the separation of powers. Despite a long continuous history of (mostly southern) states inventing new ways to evade injunctions and settlements aimed at racially motivated voting restrictions, the Court made a finding of fact that the problems at which the Voting Rights Act had been directed and repeatedly re-enacted had, by 2013, disappeared and were unlikely to return. There was thus no current need for the legislation and in the Court’s view, that fact rendered it unconstitutional.
I would have thought that the question of the current need for legislation was as distinctly a legislative function as was the original question whether the legislation was needed at the time of its enactment. In principle, after Shelby County, there seems to be nothing standing between any piece of legislation and this Supreme Court’s disposition to decide that Congress was simply wrong about the need for it and thus the legislation is dead on arrival.
One can only wonder which other federal statutes have outlived their usefulness in the minds of the conservative Justices and how long it will be before the principle of Shelby County will be used to justify their rejection based solely on the Court’s view that the legislation is no longer necessary.
True enough, the Court in Shelby County made much of what it called, with relish, the “extraordinary and unprecedented features” of the law’s pre-clearance procedures. But Congress was dealing with an intractable history of racially discriminatory legislation, regulation, and practices, one with long-standing roots in history and culture. The Court swept that aside by looking at the current data on voting in the subject states, finding that all was well, and thus holding that the legislation had long ago accomplished its original purposes. In the conservative majority’s view, by 2013 the law was just a meaningless burden on the oppressed states that had for many decades been guilty of racially discriminatory voting policies but had cleaned up their act. The Court presumed to judge whether those problems and tendencies, buried in southern culture, would rise again. It didn’t think so.
It was oh so wrong.
The extent of that wrongness is well shown in these quotes from the Shelby County opinion:
In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were….
If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story.
It could not be any clearer that the Court is acting as a legislature in making these judgments. If there is any saving grace in this debacle, it is the concluding language that purports to limit the effect of what the Court did:
Our decision in no way affects the permanent nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions….
Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.
If this weren’t so egregious an error by the highest court, I would laugh out loud. In reading that last paragraph, I immediately thought of the pathetic cliché, “I’m not racist; why some of my best friends are Black.”
Two important footnotes: (1) Justice Thomas, one of the two dissenting voices in the recent decision to allow the National Archives to release the Trump papers to the January 6 Select Committee, said he would have held all of Section 5 unconstitutional along with the coverage formula. No surprise there. (2) the remarkable dissent penned by Justice Ginsburg (RIP incisively destroyed the central premises of the majority opinion with an overwhelming recitation of facts the Court chose to ignore:
Jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to approve, auguring that barriers to minority voting would quickly resurface were the preclearance remedy eliminated.
Justice Ginsburg identified some of the “second generation” techniques being employed to defeat the will and ability of minority voters, such as racial gerrymandering and at-large districts that produced fatal dilution of minority voting blocs. She noted that,
… the record before Congress was huge. In fact, Congress found there were more DOJ objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization.
… between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory.
Those findings alone dispose of the majority’s manufactured claim that “our country has changed.”
Justice Ginsburg also made the point that the 2006 extension of the pre-clearance provision was no casual act, noting that the vote to extend the Act was 390 to 33 in the House and 98 to zero in the Senate. Congress’ intent to extend the protections of the Act in the face of continued recalcitrance and artifice by many states could not have been clearer.
In addition to completely undermining the factual basis claimed by the majority, Justice Ginsburg highlighted the majority’s massive legal mistake by pointing out that the principle of equal sovereignty among the states relates to the admission of new states and that the Court’s use of the doctrine was thus unprecedented. She concluded her devastating dissent with this:
After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” …. That determination of the body empowered to enforce the Civil War Amendments “by appropriate legislation” merits this Court’s utmost respect. In my judgment, the Court errs egregiously by overriding Congress’ decision.
And, indeed, here we are. Multiple Republican states are passing a multitude of laws to make voting more difficult with almost certain disparate impacts on voters most likely to vote Democratic. For a dramatic statement of the problem, see Senator Klobuchar schooling everyone on this: https://bit.ly/3tQXSQS
The Republicans haven’t stopped there. They are replacing election officials with their partisans in anticipation that Democratic voting will overcome the implanted obstacles. In that case, the Republicans are preparing the groundwork for simply rejecting the vote counts and declaring the Republican candidates the winners. The main goal of this action is, of course, to install Donald Trump back into the presidency in 2024 even if the voters reject him.
If you think I am exaggerating, read these samples: https://wapo.st/3GzjIvJ [Election officials in Texas reject hundreds of ballot applications under state’s new voting restrictions]:
The clerk’s office in Travis [County, Austin] said it does not have enough information from the secretary of state to provide voters with what they must do to fix their applications. Many other counties are experiencing the same high rejection rate,” the office said in a statement. “We have not received instructions from the state outlining what our office can do to assist voters in submitting a completed application.”
And it has now been disclosed that at the end of 2020 there was a multi-state effort by Republicans to submit fake collections of electors voting for Donald Trump. See, among others: https://bit.ly/3AnBf7G This seems like the plot of a cheap B-grade movie but it’s real. No more evidence is needed of the dishonesty and determination of Republicans throughout the country to undermine democracy and install Trump as dictator.
I am, of course, aware that two putative Democratic senators, Manchin and Sinema, have aligned themselves with Republicans to prevent the adoption of federal voting protection laws. https://nyti.ms/33HxBtw They almost certainly will stand with Republicans in opposing any other federal regulation of voting even if limited to congressional seats as the Constitution provides. Hypocrisy is the missing name for Republican politicians and the Democrats who align with them.
Realistically, we must acknowledge that the constitutionally appropriate solution I am advocating (the complete federal regulation of elections for House and Senate members) is not going to happen until the party balance in the Senate is changed or the filibuster is eliminated. The most likely path is to remove the turncoats Manchin and Sinema, and elect Democrats in other states where Republicans now have Senate seats. This is a tall order to put it mildly, but it is likely the only way to prevent Republicans from simply “taking” the presidency in 2024.
History is not favorable for this outcome. Usually the party “in power” loses seats in Congress in the mid-term elections. If Democrats don’t overcome that history and lose majorities in both houses of Congress, the Republicans will simply stop any legislation favored by Democrats and it will be ‘game over.’
It appears from my sporadic observations that the Democratic Party lacks a strategic vision that spells ‘high likelihood’ of success. The news is generally dominated by Republican talking points. Democratic politicians in online gatherings I have attended spend most of the time with canned talking points. There is little or no follow-up with compelling data points. Trump appointed judges are doing just what the conservatives wanted them to do. Main case in point is the decision just handed down: a nationwide injunction against the President’s vaccine mandate for federal employees.
The President has already achieved many major goals. As he points out, the Republican Party stands for nothing but obstruction, the official Party of No. Who is going to tell that story in terms the voting public can understand? When are they going to start? The run-up to mid-terms is underway now.
It’s great that the Democratic Party stands up for diversity and economic equality, goals I endorse without qualification, but the voters are likely more interested in tangible gains than in broad statements of high principle. Democrats need to stop sounding like politicians and talk about delivered deliverables and what comes next. Every day that goes by without a coherent plan to reach the voters with comprehensible truths is a lost opportunity that cannot be recaptured. The Republicans are wasting no time in undermining the ability of Democrats to vote. We need to move now.
Maybe multitudes are a strength, but I continue to be put off by the number of organizations claiming Democratic credentials seeking donations but stating no clear use of the money. New groups seem to crop up every week. We’re not going to win this way. The national Democratic Party needs to address this and bring the legitimate disparate groups together in a coherent strategy. It’s harder than for Republicans who know exactly what their goals are. It’s time to get the act together.
Well done. Terrifying.