Saturday, June 19, 2021

On Terrorism, the Enemy Live Down the Street

             Forget al Qaeda! Forget Isis! If you’re worried about terrorism in the United States, the intelligence community assesses that the most serious threat comes not from brown-skinned foreigners, but from the unhinged white supremacist neighbors down the street. who plotted to kidnap the governor of Michigan or who stormed the U.S. Capitol on January 6 with baseball bats, bear spray, and other weapons to try to block Joe Biden’s election as president of the United States, and the racially motivated white guys who carried out deadly mass shootings over the past several years in Charleston, Pittsburgh, and El Paso.

            President Biden gave the intelligence community’s warning sufficient credence to direct his National Security Council to prepare a detailed plan to counter domestic terrorism. The “National Strategy for Countering Domestic Terrorism” opens by recalling the worst of the incidents from the past few years: the slaughter of black church members in Charleston by the young racist gunman Dylan Roof on June 27, 2015; the mass shooting at the Tree of Life Synagogue in Pittsburgh on Nov. 4, 2016; and the mass shooting of Latino customers by an anti-immigrant gunman at a Walmart in El Paso on Aug. 9, 2019.

The NSC document warns starkly that the United States faces “an elevated threat to the homeland in 2021” from so-called “domestic violent extremists (DVEs) who are motivated by a range of ideologies and galvanized by recent political and societal events . . .”

Attorney General Merrick Garland elaborated on the warning as he detailed the administration’s plan on Tuesday [June 18]. “In the FBI’s view, the top domestic violence extremist threat comes from racially or ethnically motivated violent extremists, specifically those who advocated for the superiority of the White race," Garland said.

The administration’s initiative represents a sharp break from the Trump presidency. Trump, after all, counted on support from these groups and even went so far as to encourage them when asked specifically about the Proud Boys group during the September 30, 2020, presidential debate. Federal law enforcement authorities have said they hesitated to go after domestic terrorists as long as Trump was in the White House.

Trump did not denounce the Proud Boys when asked in the presidential debate, but instead actually called on them for future help. He urged the group to “stand back and stand by.” Three months later, Proud Boys leaders and members were prominent in the Trump mob in the Jan. 6 insurrection at the Capitol. Some of them explained to reporters that they stormed the Capitol in direct response to Trump’s call to assemble in Washington and then to march to the Capitol.

It needs to be noted that we have seen this before, most dramatically perhaps in the post-Civil War Reconstruction. Disaffected white southerners formed the Ku Klux Klan to terrorize black citizens for exercising their rights to vote, run for public office, and serve for juries.

Congress responded by enacting the Enforcement Act of 1871 – commonly called the Ku Klux Klan Act –which made state officials liable in federal court for depriving anyone of the equal protection rights guaranteed by the Fourteenth and Fifteenth Amendments. The act also allowed the president to suspend the writ of habeas corpus to combat the Klan and other white supremacist organizations.

Unfortunately, the Supreme Court gutted the law in the most important test case to arise under the act. The government prosecuted nine of the white militia members who ousted the elected biracial government in Colfax, Louisiana, but the Court held in Cruikshank v. United States (1876) that the act could be enforced only against state officials, not against private actors.

The epidemic of more than 4,700 lynchings in the late 19th and through the 1930s was also racist-motivated domestic terrorism. The NAACP lobbied Congress hard to enact a federal anti-lynching law, but to no avail.

Some of the victims of 20th century domestic terrorism died not at the end of a rope but were killed through other means: Emmet Till, beaten to death in Mississippi on Aug. 28, 1955; and the civil rights workers Schwerner, Chaney, and Goodman, murdered and their bodies buried in an earthen dam in Neshoba County, Mississippi, on June 21, 1964.

The Biden administration’s plan uses bureaucratic gobbledygook to call for countering the “persistent” threat. “Addressing domestic terrorism effectively, responsibly, and sustainably demands forging a government–wide effort while protecting the rule of law and distinctive law enforcement prerogatives,” the plan states.

The plan includes cautionary language about protecting “our cherished civil rights and civil liberties.” But that has not stopped Fox News opinion-mongers such as Sean Hannity and Tucker Carlson from denouncing the plan as an effort to go after the Biden administration’s opponents in far right political circles.

The warnings, even if politically motivated, are not completely baseless. The FBI infiltrated and harassed left-wing political groups in the 1970s, at some cost to political liberties. Today, the COINTELPRO tactics of the earlier era are apt to be detected in real time and controlled by news organizations and advocacy groups more attuned to civil liberties violations than they were back then/

The United States has waged war on Islamist terrorism persistently and patiently over the past twenty years since 9/11. The war has achieved important results: Bin Laden is dead; Al Qaeda cells largely neutered in several countries.

The war on homegrown terrorists calls as well for patience, persistence, and bipartisan resolve. “This is project that should unite all Americans,” the NSC plan states. The plan offers no simple solution, but serves as a rallying cry for law-abiding Americans to join in trying to protect the homeland from the enemy within. As Walt Kelly’s Pogo remarked back in 1970, “We have met the enemy, and he is us.”

Saturday, June 12, 2021

Justices Slow to Take On Policing Issues

             More than a year after George Floyd’s deaths, the multipronged efforts to reform police policies and practices on use of force have produced only meager results, according to a comprehensive examination by reporters for The Washington Post. Even so, the U.S. Department of Justice and the various police departments that have re-examined their use-of-force policies deserve more credit than the Supreme Court, which has done literally nothing to address the various judicial doctrines that give police officers wider and wider leeway in use of force against civilians.

            In fact, the Court has been sitting for more than nine months on an appeal by the parents of a St. Louis man, who died in a St. Louis jail cell from prone restraint asphyxiation on September 8, 2015, after six police officers held him down until he suffocated to death.

            Nicholas Gilbert’s parents sued the city of St. Louis and the officers for wrongful death, but the federal appeals court for Missouri rejected their suit in an extraordinary decision in April 2020 holding that no reasonable jury could have found the officcrs’ actions to constitute “excessive force.”

            To the contrary, a reasonable jury in Minneapolis concluded a year after the Eighth Circuit’s decision that Derek Chauvin’s actions in George Floyd’s death – comparable to the St. Louis officers’ actions in Gilbert’s death – were not only excessive, but in fact criminal. Chauvin’s lawyer had cited the decision in his defense arguments.

            The Eighth Circuit’s decision in Lombardo v. St. Louis  – by a panel of three Republican-appointed judges – overlooked warnings from policing experts and the U.S. Justice Department dating at least from the 1990s about the risk of “compression asphyxia” from use of pressure on suspects held in prone restraint.

            Representing Gilbert’s parents, the Washington, D.C., civil rights attorney Jonathan Taylor urged the justices in September to hear their appeal to “send a message” about the dangers of leaving police officers and police departments free to engage in a restraint technique well known to be dangerous.

            Taylor went on to cite a compilation by reporters for USA Today showing that at least 134 people have died over the past decade from police officers’ use of prone-restraint techniques on suspects. Taylor, a lawyer with the well-known boutique law firm Gupta Wessler, cited as well a passage from an opinion by another federal appeals court that the “fact pattern” in Gilbert’s death “appears with unfortunate frequency in the reported decisions of the federal courts,” and “with even greater frequency on the street.”

            Taylor described the Eighth Circuit’s decision as “outlandishly wrong” and a candidate for “summary reversal” without full briefing and oral argument. He noted as well that the decision conflicts with rulings by several other federal circuits to have considered the same legal issue.

            More than two dozen “policing scholars” joined in an amicus brief also urging the justices to hear the case. “The Eighth Circuit’s decision is wrong,” they wrote in the brief, “and will be used to condone egregious exercises of force.”

            Despite the clear circuit conflict and the straightforward issue, the justices have yet to decide what to do about the case: to grant certiorari or to dismiss the appeal. The case has been relisted more than a dozen times for the justices’ case-selecting conferences, most recently on Thursday June 10.

            Midway through the 2019 term, the justices considered but rejected a handful of petitions urging them to rethink the use of the judge-made doctrine known as “qualified immunity” that often shields police officers from civil or criminal liability in excessive force cases. As the term was about to end, a team of five reporters with the Reuters news agency published a comprehensive examination of “qualified immunity” cases documenting the role that the fifty-year-old doctrine serves as “a highly effective shield” for cops accused of excessive force.

The Reuters reporters won recognition last week [June 10] not from the Supreme Court but from the committee that awards Pulitzer Prizes for journalism. The Pulitzer committee cited the report for “outstanding data analysis” by two of my Supreme Court press corps colleagues, Lawrence Hurley and Andrew Chung, and three Reuters data reporters: Andrea Januta, Jaimi Dowdell, and Jackie Botts.

The Court’s long delay in acting on the St. Louis case is not unusual. The Court was also slow over the past several months to take on two other hot-button issues: abortion rights and gun safety laws. After sitting on those two cases for months, however, the justices have now agreed to hear Mississippi’s effort to reinstate a law banning most abortions after the fifteenth week of pregnancy and to consider a gun rights group’s effort to strike down a New York law requiring a special need for license to carry a firearm in public.

The clamor for those cases came from the political and legal right, but the justices would do well also to heed the urgent calls from the political and legal left to re-examine police policies on use of force and to strengthen judicial accountability in regard to those policies.

At this writing, however, it appears that they don’t really care to try.

Saturday, June 5, 2021

We Still Don't Know Much About History

         Sam Cooke had a Top 40 hit back in the 1960s with a teenaged love song that began with the historic line, “Don’t know much about history.” Cooke’s lyrics went on to disclaim knowledge about other school subjects and ended with a hopeful profession of teenaged love: “But I do know that I love you, And I know that if you love me, too, What a wonderful world this could be.”

            In retrospect, Cooke’s title can now be seen as more true than recognized at the time. In fact, most high school students in the mid-20th century learned less than the whole truth of American history, thanks to a highly sanitized account of the central role of race throughout U.S. history.

In my case, I took American history in 1963 from a much beloved teacher, who is now widely believed to have been a devotee of the pro-Confederacy Lost Cause. Doc Holden once referred in the classroom to the “War of Northern Aggression”—a phrase that I regarded at the time as a joke rather than the serious pro-Confederacy view of the Civil War.       

I recall nothing from that course about slavery: the degrading daily lives and broken families of the enslaved or the brutal hardships of the Middle Passage. I do recall that the textbook treated the post-Civil War history according to the then-standard historiography that the North punitively installed corrupt and ineffectual  carpetbagger governments on the defeated southern states.

Only now, a half century later, have I learned the whole truth from Henry Louis Gates Jr.’s masterful account in Stony the Road: Reconstruction,
White Supremacy, and the Rise of Jim Crow (
Penguin Press, 2019). White southerners, fearful of being outvoted by black freedmen, ruthlessly devised clever tactics to prevent blacks from exercising their newly granted right to vote and, at least twice, in Colfax, Louisiana, and Wilmington, North Carolina, overthrew elected biracial governments by force of arms.

Unsurprisingly, I also learned nothing about the Tulsa Race Massacre, the unspeakable destruction of Black Wall Street in 1921 now being recalled in print and on the air on the centennial of the worst race massacre in U.S. history. The actor Tom Hanks, a history buff of sorts, also recalled just this week in an op-ed in The New York Times [June 5] that he learned nothing about the Tulsa race massacre in his high school history course.

Apparently, most Oklahoma high school students also learned nothing about Tulsa in their high school history courses either.

The various other white pogroms against black Americans from the 19th and 20th centuries also went unmentioned in my high school, as far as I can recall. Eugene Robinson, in his column in The Washington Post [May 31], aptly noted some of the other massacres, misleadingly described at the time as race riots: Atlanta, 1906; East St. Louis, 1917; Chester, Pa., 1917; and twenty U.S. cities in 1919, including Chicago and Washington, D.C.

Most of those episodes are news to me now, but I have seen historical markers in Washington detailing the attacks on black veterans in 1919 back home after surviving combat in World War I.

Even worse, I recall nothing from my American history course about the civil rights revolution, which was taking place right before our eyes in real time in the 1960s. I do not recall any account of Jim Crow Laws or the Supreme Court’s decision upholding those laws in Plessy v. Ferguson, even though the Supreme Court had overturned that decision only a decade earlier in the very year that I enrolled in a segregated elementary school in a white working-class neighborhood.

In the current “racial reckoning,” statues honoring Confederate generals and heroes are rightly being dismantled over the objections of conservatives who claim that history is being erased. In fact, the whole truth about U.S. history needs to be un-erased after too many decades of ignoring the shameful history of violence by white terrorists against black Americans.

“Critical race theory,” a bete noire for cultural and political conservatives, seeks to remedy this shortcoming by telling the true history of systemic racism in U.S. history from 1619 to the present day.

Robinson’s response is blunt and terse: “There are those who deny that anything called ‘systemic racism’ is a feature of the American landscape,” Robinson wrote in closing. “They should be aware that history tells a very different story.”

The Spanish philosopher George Santayana famously warned that those who cannot remember the past are condemned to repeat it. The challenge for Americans now is to learn the past, perhaps for the first time, and then to proceed from a deeper understanding of our checkered past to remedy the legacies that four centuries of racism have left for current generations to address and change.


Sunday, May 30, 2021

Trump's Day of Reckoning Now at Hand?

                 Donald J. Trump, sulking at Mar a Lago with no access to his followers on Facebook and Twitter, is being drawn ever closer to his day of reckoning with the law now that New York City’s district attorney has convened a special grand jury to hear evidence from the prosecutor’s investigation of Trump’s businesses. The grand jury may be asked soon to consider possible criminal charges against the Trump Organization, Trump himself, and perhaps some of Trump’s family members and/or some of Trump’s former associates in the business.

                News of the empaneling of the grand jury, long anticipated, came last week [May 25] as first reported in The Washington Post on its home page on Tuesday and on the front page of its print edition on Wednesday. Quoting “people familiar with the development,” The Post’s Trump beat correspondents Shayna Jacobs and David A. Farenthold reported that the panel will meet three days a week over six months. Other news organizations reported that the grand jury consists of twenty-three members, randomly selected from New York City jury lists.

                Two former prosecutors quoted in news coverage assessed the news as signaling that the Manhattan district attorney Cyrus Vance Jr. views his office’s years-long investigation of Trump’s business to have reached “an advanced stage.”  “The prosecutors are convinced they have a case,” Rebecca Rophie, a former ADA in Vance’s office and now a professor at New York Law School, told the Post. “That’s at least how I read it.”

                Commenting on CNN, Preet Bahrara, the U.S. attorney for Manhattan fired by Trump early in his presidency, predicted on CNN that the move sets the stage for a “parade of witnesses” regularly going into the grand jury room. Bahrara is now a paid legal analyst with the cable news channel.

                Meanwhile, Trump was facing another spike of unfavorable legal news in a different venue as a federal judge in Washington considered ordering the release of the Justice Department memo that the then-attorney general William Barr cited in summarizing the Mueller Report as exonerating Trump of obstruction of justice in regard to the Russia investigation. [330]

                Those of us who have been hoping for the law to catch up with Trump for more than four years may be in for a disappointment, however, according to a former Watergate prosecutor writing in The Washington Post. An indictment of Trump is far from certain and a conviction even iffier, according to Philip Lacovara, counsel to the former Watergate special prosecutor and a former president of the District of Columbia Bar, in an op-ed written with John Martin, a former U.S. attorney and federal judge.

                Vance’s hopes for a successful prosecution may depend on flipping Allen Weisselberg, Trump’s longtime financial manager, who himself may face legal liability for failing to report income he received in the form of extravagant benefits bestowed over the years by Trump.

                Even with Weisselberg’s cooperation, however, former prosecutors are cautioning in print and on the air that financial fraud cases are difficult to present and difficult for untrained jurors to follow and grasp.

Trump, meanwhile, is using his “From the Desk of Donald J. Trump” blog to call Vance’s investigation a partisan witch-hunt. Trump’s pre-election boast that he could shoot someone on Fifth Avenue without losing any of his supporters underscores the very real possibility that a federal jury seated to try Trump could include one or more pro-Trump jurors unwilling to convict even in the face of damning evidence.

Long after the fact, it is now clear that Trump escaped prosecution for obstruction of justice back in 2019 for his attempts to thwart the Russia investigation not for lack of evidence but for the political views of his lapdog attorney general William Barr. 

Barr’s peremptory statement that special counsel Robert Mueller’s investigation had exonerated Trump could have been seen as palpably false at the time, but Trump and his partisans trumpeted Barr’s pronouncement as proof positive that Mueller’s detailed, 400-page report lacked substance.

The watchdog group Citizens for Responsibility and Ethics in Washington (CREW) has been trying for years to force the Justice Department to disclose the memo from DOJ’s Office of Legal Counsel that Barr claimed as the basis for his statement clearing Trump of any criminal liability.

Trump administration lawyers argued the memo was exempt from the Freedom of Information Act because of the privilege for deliberative, pre-decisional documents. Ruling on CREW’s efforts, U.S. District Court Judge Amy Berman Jackson bluntly accused Barr of practicing public relations rather than law. “ The suggestion that the Attorney General’s advisors were helping him make a decision about whether to initiate or decline a prosecution is contrary to the very memorandum at issue,” Jackson wrote, in a blistering opinion. Instead, she concluded, Barr was simply “girding for a preemptive strike against the Mueller report.”

The obstruction of justice count might seem to be moot, but not so, according to Andrew Weissman, a prosecutor on Mueller’s staff. In a guest essay in the New York Times, Weissman argued that it is not too late to prosecute Trump based on what he calls the “ample evidence” the office compiled to support such a charge.

            Trump may yet emerge unscathed from all these legal troubles, but those of us who believe in the rule of law must hope that the law may yet hold him accountable.

Sunday, May 23, 2021

Kavanaugh Plays Rough With Precedents

             As Supreme Court nominee two years ago, Brett Kavanaugh described the landmark abortion rights decision Roe v. Wade as a precedent entitled to respect under the doctrine known, in Latin phrasing, as stare decisis.

            In a seven-minute colloquy with California’s Democratic senator Dianne Feinstein, Kavanaugh resisted her efforts to get him to go further. Feinstein, stoutly defending Roe v. Wade, worried aloud about Supreme Court nominees who promise in confirmation hearings to follow stare decisis, but then “they get confirmed and they don’t.”

Kavanaugh undoubtedly thinks of himself as a judicious expert on the “law of judicial precedent,” as one of a dozen judge contributors to a scholarly 924-page treatise on the subject compiled by the noted legal writing expert Bryan Garner.

Within the past month, however, Kavanaugh has been less than judicious in leading the lopsidedly conservative Supreme Court in under-the-radar manhandling of two significant precedents that gave prisoners legal avenues for challenging convictions or sentences imposed years ago under laws and procedures now recognized under those precedents as unconstitutional.

In the first of those decisions, Kavanaugh led an ideologically divided 6-3 Court in Jones v. Mississippi (April 22) to gut two precedents from 2012 and 2016 protecting juvenile offenders from life-without-parole (LWOP) sentences. In the first of those earlier decisions, the Court ruled that a juvenile offender could not be sentenced to life without parole unless he was “permanently incorrigible.” In the second decision, the Court held in Montgomery v. Louisiana (2016) that that ruling applied retroactively to juvenile offenders challenging LWOP sentences imposed before the Court’s ruling.

In Jones, Kavanaugh led the Court in concluding that the judge who had earlier sentenced Jones to life without parole under the then-applicable Mississippi law acted properly in imposing the same sentence without finding that Jones was “permanently incorrigible,” the standard set out in the Supreme Court precedent.

Kavanaugh again led the Court last week [May 19] in another ideologically divided 6-3 decision, Edwards v. Vannoy (May 19), that threw a precedent under the stare decisis bus. The ruling in Edwards blocks prisoners convicted by non-unanimous juries in Louisiana or Oregon from taking advantage of last year’s decision in Ramos v. Louisiana (2020) to require jury unanimity in criminal cases nationwide.

Kavanaugh paid scant respect to precedents in both of this term’s new decisions. To the contrary, Kavanaugh left the juvenile sentencing precedents all but toothless in protecting juvenile offenders from the kind of severe sentence rejected by the Court’s precedents.

In the jury-unanimity decision, Kavanaugh denied hundreds of prisoners serving sentences in Louisiana or Oregon based on non-unanimous jury verdicts any legal recourse to overturn convictions now recognized as unconstitutional under the new precedent.

To reach that result in Edwards, Kavanaugh had to flatly overrule a precedent, Teague v. Lane (1989), that ostensibly allowed retroactive application of a new Supreme Court ruling in federal habeas corpus cases if the new ruling amounted to a “watershed” rule of criminal procedure.

In his opinion for the Court in Ramos, Justice Neil Gorsuch in fact described the decision as “fundamental.” In a concurring opinion in Ramos, however, Kavanaugh anticipated the retroactivity issue by describing the new rule as less than the kind of “watershed” decision to be applied retroactively under Teague v. Lane.

In the new decision, Kavanaugh avoided the semantic issue by overruling Teague v. Lane altogether on the ground that the Court had never found a new criminal procedure decision to qualify as a watershed ruling to be applied retroactively.

Writing for three liberal justices in dissent in Edwards, Kagan argued that Ramos clearly qualifies as a “watershed” decision to be applied retroactively. “If you were scanning a thesaurus for a single word to describe the decision,” Kagan wrote, “you would stop when you came to ‘watershed.’”

Kagan pointedly noted Kavanaugh’s sleight-of-hand to skirt the issue. “The majority cannot (and indeed does not) deny, given all Ramos said, that the jury unanimity requirement fits to a tee Teague’s description of a watershed procedural rule,” she wrote. “Nor can the majority explain its result by relying on precedent. . . . Search high and low the settled law of retroactivity, and the majority still has no reason to deny Ramos watershed status.”

Kagan also noted that Kavanaugh was less than careful in jettisoning Teague v. Lane despite the pains he took in Ramos to justify his vote for overruling the earlier precedent that had allowed non-unanimous verdicts in criminal cases,

“In overruling a critical aspect of Teague, the majority follows none of the usual rules of stare decisis,” Kagan wrote. “It discards precedent without a party requesting that action. And it does so with barely a reason given, much less the ‘special justification’ our law demands.”

Together, Kavanaugh’s roles in Jones and Edwards suggest that he will need little persuasion to join in overruling Roe v. Wade if his fellow conservatives are determined to do so next term in the Mississippi case that the justices have teed up for argument in the fall. Feinstein’s warning two years ago about Supreme Court nominees who break their promises to follow precedent seems all the more prescient with that case now on the Court’s docket.

Saturday, May 15, 2021

Roberts Played 'Long Game' on Voter Suppression

             John Roberts is widely credited by, among others his biographer Joan Biskupic, with playing “the long game” as chief justice, focused not only on decisions in the current term but on creating legal precedents that will help advance his ideological agenda in years to come. If Roberts in fact has 20-20 foresight, it is reasonable to ask whether he anticipated as early as 2013 what is happening now in 2021: Republican lawmakers in politically competitive states, freed  by the Court from federal oversight, rushing to enact laws aimed at making it harder for minority voters to cast ballots.

            Roberts, it will be recalled, led the Court’s decision in Shelby County v. Holder (2013) to strike down the preclearance provision in the federal Voting Rights Act, the provision that required states with histories of racial discrimination in voting to submit any changes in election procedures for approval by the Justice Department or a federal court in Washington.

           Three of the states previously subject to the preclearance provision – Florida, Georgia, and Texas --  are among the Republican-majority states that have enacted new restrictions on voting in the past few months Republicans have advanced the laws on the strength of unsubstantiated claims that the 2020 presidential election was tainted by election irregularities and voter fraud.

          Outvoted Democrats have strongly opposed the laws, with their various provisions to make it harder to cast ballots by mail or to deposit ballots in “drop boxes” in advance of Election Day rather than wait in long lines to vote on Election Day itself. The Democratic opponents have argued that the laws will have disproportionate impact on Black and Hispanic voters compared to the impact on white voters.

       All three of the laws would be dead on arrival if submitted for “preclearance” under the former Voting Rights Act provision on the ground that each of them would evidently reduce voting rights for minority voters. To obtain preclearance, each of the states would have had the burden to show that the proposed changes would not disadvantage minority voters

          Two of my press corps colleagues, Joan Biskupic in a column for CNN in March and Bloomberg’s Greg Stohr in an article  published on May 8, have already pointed to Roberts’ decision in 2013 as the necessary basis for allowing those states to do what they are now doing. Stohr’s article appeared under this headline: “GOP’s Voting Curbs Show Long Reach of 2013 Supreme Court Ruling.”

            Neither of my colleagues made the additional point, however, that Roberts, a pretty smart guy after all, must have foreseen that the former preclearance states would use their newfound freedom to try to suppress minority voting.

            The political lines on voting restrictions had already been drawn by 2013. With the Supreme Court’s acquiescence, Republicans were enacting voter ID laws based on unsubstantiated claims of voter fraud even as Democrats and voting rights advocates were warning that the laws would pose obstacles for minority voters.

            Roberts had been part of the 6-3 majority in a decision from Indiana in 2008 that had upheld the first of those laws to reach the Court. Writing for the dissenters in the case, Crawford v. Marion County Election Board (2008), Justice David Souter argued that the Court should have required the state to produce actual evidence of voter fraud to justify the burden on voting rights. Roberts was evidently content to leave vote-suppressing states free to enact restrictions on any pretext they might devise.

Roberts’ rationale in his 5-4 decision in Shelby County five years later rested on the premise that the country had changed since the bad old days when Congress first enacted the Voting Rights Act in 1965. He reasoned that Congress should have updated the formula it enacted in 1965 for imposing the preclearance burden on nine states and some municipalities in three other states.

Writing for the dissenters in Shelby County, Justice Ruth Bader Ginsburg noted that states had moved away from the Jim Crow era of blatant racial discrimination by adopting what she called “second generation” election laws or procedures to suppress minority voters – for example, moving polling places in minority neighborhoods to make it just a little harder for minority voters to cast their ballots.

The new laws in present-day Florida, Georgia, and Texas fit Ginsburg’s description from eight years ago. On their face, the laws may appear to be race-neutral changes aimed at helping local officials administer elections. Texas’s law, however, specifically targets large metropolitan counties that saw high turnouts in 2020 thanks to various changes making it easier to use mail ballots.

            Voting rights groups are challenging those laws in federal court under the still-standing provisions of the Voting Rights Act. Without the preclearance provision, however, the plaintiffs have the difficult burden to show that the laws, if implemented, will disadvantage minority voters, just as the Republican lawmakers evidently intend.

            Republicans may have their complaints about Roberts’ votes in a handful of cases – notably, his vote in 2011 to save Obamacare. But Roberts has consistently toed the Republican line in campaign finance and election law cases throughout his tenure. As early as his years in the Reagan White House, Roberts was no fan of the Voting Rights Act and his legacy as chief justice needs to be remembered as giving a green light to the white supremacists who still today are intent on suppressing the minority vote.

The Texas law, significantly, included at one point the description of one of its purposes as protecting “the purity of the ballot box.” GOP lawmakers dropped the phrase after Democrats pointed out the racist history of the phrase from the days of Texas’s all-white party primaries, but the Republicans’ purpose remains unchanged..

Friday, May 7, 2021

Trump's ''Big Lie" Drives GOP's Foot Soldiers

Leading Republicans stepped up their efforts at voter suppression last week by advancing new restrictions on absentee and mail voting in two states that President Trump carried in November: Florida, with 51 percent of the vote, and Texas, with 52 percent of the vote.

In Florida, the state’s ambitious Republican governor Ron DeSantis turned the signing of what he called the nation’s toughest election security measure into a nationally televised event on Fox & Friends on Thursday morning [May 6]. DeSantis used the Fox News Channel booking as an excuse for excluding local news organizations from the event, but a Fox spokesperson denied that the network or the program had asked for exclusivity.

Florida followed three other Republican-controlled states in enacting new restrictions on voting against the backdrop of President Trump’s unsubstantiated claims that Democrats and left-wing groups stole the 2020 presidential election through widespread voter fraud. Trump has pursued those claims in more than fifty court cases since the Nov.3 election, and no court has validated any of the allegations.

In Florida, DeSantis in fact touted the state’s administration of the election until the Republican-majority legislature began moving the bill known as S.B. 90. The measure limits the use of drop boxes to receive ballots in advance of Election Day.

Some Republicans voiced buyer’s remorse about the bill by noting that the state GOP has encouraged mail voting over the past three decades and that mail voting has been critical for successful GOP candidates, including DeSantis in hjs 2018 race for the governorship.

The Florida law also requires voters to request a mail ballot every two years, instead of every four years. Local election supervisors opposed that provision because of the added administrative burdens.

In Texas, the Republican-majority House of Representatives completed action on an election reform measure on Friday [May 7] after Democrats used parliamentary tactics to secure some softening amendments.

As in Florida, evidence of any election irregularities or voter fraud in the 2020 election is all but non-existent. The state attorney general’s office reportedly spent 22,000 hours looking for voter fraud in 2020 but found only sixteen cases of false addresses on registration forms, according to coverage in the Houston Chronicle.

The Texas bill includes provisions specifically applicable to metropolitan areas with populations of one million or more, such as Austin, Dallas, Houston, and San Antonio. Trump’s Democratic opponent, Joe Biden, carried those counties in the 2020 election.

The Texas measuree still awaits reconciliation with the version of the legislation approved earlier by the state Senate. Texas’s Republican governor Greg Abbott, who described election security as a priority for the current legislative session, is expected to sign the bill when it reaches his desk.

The Texas bill would prohibit election officials from sending mail ballot applications to voters unless a voter asks for the ballot first. Among other provisions, the bill would give poll watchers more authority to challenge would-be votes. Democratic opponents of the measure say that provision will lead to partisan intimidation of voters.

Georgia was the first of the states in this legislative cycle to enact a broad election reform measure. Georgia’s measure drew critical scrutiny in news coverage because of a provision making it a crime to provide food or water to voters awaiting in line to cast ballots.

Republican legislators’ interest in enacting new restrictions on voting shows that the party’s foot-soldiers are fully committed to Trump’s “big lie” that he would still be president today but for widespread, never substantiated fraud in critical battleground states, such as Georgia.

In a recent poll conducted by Reuters in early April, 55 percent of Republicans said they believe Trump’s loss resulted from vote fraud or election rigging. The same poll, however, found that 81 percent of respondents think it important for the government to make voting easier.

Trump pressured Georgia’s chief election official in an hour-long recorded telephone call on Jan. 2 to recount ballots in the Peach State and “find” the 11,780 votes he needed to beat Biden in the final tally. The state’s Republican secretary of state, Brad Raffensperger, firmly rejected Trump’s allegations of irregularities and has continued to defend the count that showed Biden the victor as fair and accurate.[655]

Meanwhile, Arizona’s Republican-controlled state Senate has hired a private contractor with no experience in administering elections to conduct an audit of the presidential election results in Arizona’s most populous metropolitan area, Maricopa County.

Biden won Arizona’s 11 electoral votes on the basis of an 10,457-vote margin in the popular vote count. Biden beat Trump in Maricopa County by 45,000 votes out of more than 2 million votes cast. Thus, a significant recount after the audit could conceivably change the statewide result in Arizona, but Biden would still have a comfortable Electoral College majority.

A ranking Justice Department official, Pamela Karlan, the principal deputy assistant attorney general, notified the Arizona Senate by letter on Wednesday [May 5] that the auditors may be violating federal law by failing to safeguard the security of the ballots.   

The Arizona audit has itself become an article of faith for foot-soldiers in Trump’s Republican Party. New York’s Trump-supporting congresswoman, Elise Stefanik, bolstered her claim to succeed Liz Cheney as the House’s third-ranking Republican by voicing full support for the audit in an interview on Thursday [May 6] with Trump loyalist Steve Bannon on his “War Room” Podcast.