Supreme Court – Page 14 – The Wrongologist

Voting Rights and John Roberts

National and local voting rights activists, worried about threats to casting ballots nationwide, are setting up command centers, staffing hotlines and deploying thousands of monitors to polling sites across the country to ensure voters can get to the polls.

There has been plenty of talk about “rigged’’ elections in the 2016 presidential campaign. Link that with the Supreme Court’s rejection of a key section of the 1965 Voting Rights Act, and civil rights and voting rights activists say they’re concerned about possible roadblocks at the polls next week.

According to the Brennan Center for Justice, 14 states will have new voting restrictions in place, ranging from photo ID requirements to early voting cutbacks, to registration restrictions.

Some of the blame for this can be laid at the door of the Supreme Court and Chief Justice John Roberts. Stephanie Mencimer in MoJo writes that Roberts “had it in for the Voting Rights Act”:

In 2013, when Chief Justice John Roberts Jr. issued the most far-reaching Supreme Court decision on voting rights in the 21st century, he finally succeeded in gutting a civil rights law he has been fighting his entire career. For three decades, Roberts has argued that the US has become colorblind to the point where aggressive federal intervention on behalf of voters of color is no longer necessary—and this case, Shelby County v. Holder, was the pinnacle of that crusade.

Roberts honed his views on race and voting as a clerk for Justice William Rehnquist and later in the Reagan DOJ. Rehnquist redefined opposition to civil rights laws as a commitment to color blindness, using this leap of logic to undermine the 1965 Voting Rights Act.

The Atlantic reports that Roberts has a history of insisting that the US is a post-racial, colorblind society, a viewpoint he emphasized in his 2013 Shelby County v. Holder opinion. That decision removed a critical component of the Voting Rights Act: the requirement that jurisdictions with a long history of voting discrimination submit any changes in voting procedures to the DOJ for “preclearance,” to ensure those changes didn’t have a discriminatory impact.

Preclearance blocked more than 700 discriminatory voting changes between 1982 and 2006. But in the Shelby opinion, Roberts asserted that such protections were no longer warranted. He said that federal oversight of the jurisdictions in question, mostly states in the Deep South, was outdated and unjustified.

After the Shelby decision, several states passed new voting restrictions that were overwhelmingly directed at minorities. On the day the Shelby decision was handed down, Texas announced that the only two forms of state voter identification it would accept were a driver’s license or a gun license—a measure the DOJ had previously blocked.

Georgia moved some municipal elections in predominantly minority areas from November to May, depressing turnout by nearly 20% in one instance.
Alabama implemented a strict voter ID law—and then shut down driver’s license offices in every county where more than 75% of voters were African American.
The most blatant was North Carolina’s omnibus voting law. Passed shortly after the Shelby decision, the NC law imposed strict ID requirements, limited the registration window, and dramatically cut early voting during times traditionally used by African Americans.

Some lower courts are walking back the Shelby decision. In July, the 4th Circuit Court of Appeals blocked enforcement of North Carolina’s voting law, saying its provisions “target African-Americans with almost surgical precision.”

Will the lower court ruling cause Roberts to rethink his Shelby opinion? No.

In August, the Supreme Court, without a Scalia replacement, would not hear an appeal of the 4^th Circuit’s blocking of North Carolina’s voting law, but Roberts wrote that he personally would have allowed most of the law to take effect.

According to Harvard’s Alex Keyssar, the popular vote in North Carolina for the state legislature and members of Congress for the last several years has been pretty much evenly split, but the seats are overwhelmingly Republican. And that matters. That’s how the Republican legislature put together its voting laws.

Voter suppression and partisan gerrymandering are the greatest threats to our democracy. Suppression provides the opportunity to gerrymander. Taken together, suppression and gerrymandering provide the means to disenfranchise groups of the electorate from our democracy.

The anger in this nation is because people can feel things slipping away, even if they don’t all agree on why it is, or who to blame.

At some point, it won’t matter anymore. But by then, we might have a Republic in name only.

That Didn’t Take Long

((This is a re-post of Tuesday’s column which was lost after the database crash on Monday night)

In an interview in Pennsylvania, Sen. John McCain (R-AZ) pledged that he and his party will continue the Supreme Court nomination blockade throughout Clinton’s term, if she is elected:

I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up…I promise you. This is where we need the majority and Pat Toomey is probably as articulate and effective on the floor of the Senate as anyone I have encountered.

This just makes the GOP look like jerks. We haven’t had the election yet, and the obstruction has begun. It blows up their earlier argument that they wouldn’t hold hearings for Merrick Garland because of it came so late in Obama’s term. Now we know what they really meant:

We won’t confirm your nominees because Democratic presidents aren’t entitled to nominate Supreme Court justices anymore, because of abortion and the gays.

This of course, coming from the “Constitutional conservatives” in the GOP.

Ya gotta love them. If Trump, an unfit megalomaniac who potentially could destroy the country is elected, the GOP will gladly confirm any choice he makes.

McCain’s slogan when he ran for president in 2008 was “Country First!” Now, its #Partybeforecountry.

If Clinton wins and Democrats gain a Senate majority but less than 60 seats, Republicans will oppose her nominee, and then, eventually, Democrats will change the Senate rules to abolish filibusters of Supreme Court nominees. (Republicans will decry this foul measure and justify any subsequent actions of theirs as justified.) And if Clinton wins and Republicans hold on to 51 seats, they will simply refuse to let any nominee through.

Can we please stop pretending the Republican Party will stare into the abyss after this election and come out a different, more centrist party? They are sure that the Federalist Papers said that a Supreme Court vacancy shall not be filled except by permission of the Family Research Council.

538 has the chances of a Democratic Senate at 74% right now. So please, get out and vote, particularly for House and Senate candidates. Remember, America redistricts every 10 years. We have been paying the price for letting the GOP win the redistricting effort in 2010, so winning down-ballot races will help get started on that too.

What continues to shock Wrongo more than anything is that in 2016, if you want to actually govern the wealthiest, most powerful democracy in the world, Democrats are the only game in town. The other major party is controlled by opportunists and cranks, and the third parties are run by kooks.

This is a big problem for everyone, because Democrats do not own all of the good ideas and good policies, despite the best efforts of McCain and Trump to make us believe just that.

Anybody out there voting for Gary Johnson: Do you want to chime in now, and say there is absolutely no difference between the parties?

Sunday Cartoon Blogging – July 3, 2016

The presidential choices for 2016 are Clinton or Trump. You could write-in Bernie, or Jill Stein, or one of the fringe candidates, but not all write-in votes are counted for Electoral College purposes. 43 states, representing 494 electoral votes, count write-in votes, although the candidate has to have registered electors in some of those states to be counted. So you could be throwing your vote away by writing in someone.

And this year, we can’t afford any wasted votes. If you doubt that, check out this rockin ‘n rollin’ week.

SCOTUS redefined “Undue Burden” for Texas:

COW Undue Burden

Scalia opined from beyond the grave:

COW Scalia in Hell.gif

The GOP Benghazi strategy focused on the wrong fire:

COW Benghazi Fire

The non-event called the Benghazi Congressional Report was issued:

COW Benghazi Mud

Why can’t the GOP move on from Benghazi? Please don’t say it’s because 4 people died. Think about how many have died from shootings in America since Benghazi, without any GOP interest in holding hearings on Gunz. We deserve better from these birds we elect.

Loretta Lynch knew better than to meet with the Big Dog:

Schmooze 2

Loretta Lynch used to be a prosecutor. She knows better than to speak with the spouse of someone under an active investigation. As an officer of the court, she should have told Bill that talking together was improper, and had someone else on her staff speak with him. She has tarnished the credibility of the investigation and should resign. OTOH, Mr. Bill drop kicked his wife’s good news on the Benghazi investigation to the curb, making her the story again. And he is (was) a lawyer, and ought to know the protocol as well as Lynch.

Of course, Bill denied it:

COW Bills Denial

Notes on the Supreme Court Nominee

(Wrongo is watching the NCAA Basketball tournament. This takes a yuuge amount of time, and beer. Therefore, this is a brief, poorly researched post. Luckily, it has a great cartoon!)

Obama has nominated a potential new justice, Merrick Garland. Now, the ball is in the GOP’s court to consent or not:

COW 2040

The smart move by the GOP would be to schedule or hold confirmation hearings so it looked as if Garland Merrick has a shot.

Of course, it would be smart, if the GOP Senators hadn’t already staked out the position of “no hearings, no votes, no nothing” the day after Scalia died. The problem is that some of these Republican Senators have their primaries as late as August, so they have to fend off attacks from their right flank until then.

Going back on their position now would give their further-right opponents something to run on, and they really don’t want that. So they will want to delay any hearings until after August, at which point we’re into election season, and, it gets easier to say “we’re holding hearings” even though you’ve spent months giving the media quotes about why there would be no hearings. If there are no hearings, the Dems get to target those Republican Senators who are in tight races, saying that they are simply blocking the nomination because they hate Obama, an idea that doesn’t test well with independents.

McConnell could have said, of course there will be hearings, but that Obama shouldn’t expect any of his nominees to get confirmed because of “grave concerns” that the Republicans in the Senate had about the politics of a confirmation battle during an election year, how they prefer not to turn the Court process into presidential partisan politics.

In other words, he should have taken the high road. Instead, he just said “NO”, (like Nancy Reagan did, and we know how great that worked out).

Mitch the Turtle made the GOPs red meat base happy, but has also made this into a mess that makes the GOP look as petty and incompetent as possible. A big part of the value of the Garland nomination is that he comes “pre-approved” by prominent Senate Republicans which forces their hand: Either cave on their obstruction threats (which would frustrate their base) or see their empty posturing exposed for what it is.

Either way they look like chumps.

The Garland nomination could help increase turnout against the GOP in the general election, and put a few Senate races in play.

Bonus Cartoon Thursday – March 3, 2016

How about an extra helping of political cartoons in honor of the silly season? After Super Tuesday, you might need some Bernie Crème:

COW Bernie Creme

Instead of “Yes we can,” Democrats have adopted a new slogan this election year: “Why try?” In spite of Hillary’s Miami victory speech, which sounded like it was written by Bernie, Clinton supporters believe we shouldn’t aim high, that we shouldn’t try for broad fundamental change, because we might fall short. Why is it better to proceed incrementally, to settle for less than we deserve because we might not get everything we want? Why do the establishment Dems proceed from the presumption that settling for incremental change is the only way to real change? Didn’t they learn anything from the 2014 mid-term elections?

Justice Scalia non-nomination creates GOP euphemisms:

COW GOP euphamisms.png

The Parties have selective views of what is realistic when choosing a candidate:

COW Trump Bern

Why is a huge corporation protecting us from our government? Shouldn’t it be the other way around?

COW Hal Phone

Preparing for Trump

Yesterday was Super Tuesday. The results will tell us lots about the state of the Democratic Party, but despite the outcome on Tuesday, Democrats have a variety of issues worth thinking about heading into the general election this November. In this primary cycle, Democratic primary voters just aren’t showing up. Democrats in 2016 primaries are only voting at two-thirds of the rate that they did eight years ago. All told, about 1.18 million Democrats across those first four states went to the polls in 2008. Just under 870,000 showed up this time. That’s 26% fewer voters engaged.

But, you’d think that Sanders, who’s message is a political revolution, could energize the disaffected in great numbers, but it just hasn’t happened. Perhaps it is the right message, but the wrong messenger. And no evidence of a “political revolution.”

Yet Trump is doing just that. GOP turnout in primaries is up 24% over 2008. It is a safe bet that if The Donald is the GOP nominee, there will be a big Republican turnout in November.

There are other concerns: With the Sanders vs. Clinton contest, the Democratic Party is also at risk of imploding, right along with the GOP in its tussle with Trump.

Sanders is seen as unusually honest for someone who’s been a politician for much of his life, and he advocates a refreshingly anti-establishment view on core issues that matter to an increasing number of Americans. These include American militarism, Wall Street bailouts, a two-tiered justice system, the prohibitive cost of college education, healthcare insecurity and a “rigged economy.”

OTOH, Hillary is committed to a third Obama term and incremental change. She has been forced by Sanders to move left, and is paying lip service to some of his issues. Once the general election season begins, it is likely that Hillary will be the candidate for America’s political status quo, vs. the radical alternative of Donald Trump.

Bernie’s supporters understand this, and may or may not go compliantly into the voting booth to elect Hillary, despite the terrifying prospects of a Trump presidency.

Tea Party Republicans understand that the GOP Establishment offers them little. And more and more rank and file Republicans have come to the same conclusion, which is precisely why the GOP nomination is now Trump’s to lose.

Democrats are teetering on the same precipice. The Dem Establishment, this time represented by Hillary, offers weak tea. The Sanders wing could easily sit this one out, and by late summer, when polls show that Hillary is in a death struggle with a political novice, political pundits will be tripping over each other to write about the death of the Democratic Party.

Democrats are in a bind. They want progressive politics, but offered by an Establishment leader.

Dems are always looking for that. In 2008, they selected Obama because he represented change and empowerment for average people over Hillary, the Democratic Establishment candidate. People wanted something new and different. Obama’s presidency wasn’t a failure, unless Democrats accept nothing less than ideological purity from their presidents.

Or, look back at recent presidential elections. Oh the glee among Democrats in 2001 when GWB won the nomination. It was gonna be a cakewalk for Mr. Democratic Establishment Al Gore. Gore did win the popular vote, but lacked an influential brother in Florida. With Establishment candidate John Kerry in 2004, his vote for the Iraq war was his downfall. How do you run successfully against an incumbent when you agreed with the incumbent’s major disaster? Saying you were “for it before you were against it” was an epic fail. Kerry never figured that out, and lost.

The 2008 election was easy for not-quite Establishment Obama, since the GOP was badly wounded by the GWB administration and GOP Establishment McCain lacked the personal horsepower to defeat him.

If 2016 is an Establishment Clinton v. an anti-establishment Trump, some of the Establishment GOP may choose sit it out. There is a small possibility they could go full anti-McGovern, as Establishment Dems did in 1972. If anti-establishment Sanders is the nominee, the GOP Establishment will find a way to make a deal with Trump, and the Dem Establishment probably won’t do enough to prevent Sanders from losing.

If the US economy hits a rough patch before November (and there are several reasons to expect that), Clinton as the Establishment nominee could be dead meat. Sanders, OTOH, could end up a stronger candidate because of it. We also need to remember that Donald Trump is not an ideologue. He brings no core convictions to the table, other than ego, so he will continue to say whatever works with his fans.

Will a Trump win kill America? That depends on whether our country’s immune system, that body of informed citizens who are engaged, and who bother to vote, can effectively fight the infection.

Sunday Cartoon Blogging – February 21, 2016

The preliminary results from the Nevada Caucus gives the win to Hillary Clinton, while the preliminary results from South Carolina say that Donald Trump has won, with second place too close to call at this point.

For the Democrats, the mainstream candidate now looks quite likely to take the nomination, while on the Republican side, the insurgent appears to be the one who will be the nominee. The Sanders Democrats will fall in line behind Clinton for the general election, because they know that no issue in this election trumps judicial philosophy, and the nation can’t survive another Scalia.

Here’s why: Federal judges have great power over our democracy. We could review many of Scalia’s decisions, but let’s just focus on three:

• The five Supreme Court judges (including Scalia) who decided the 2000 election by awarding the White House to George W. Bush.
• Or, the five judges (including Scalia) who decided Citizens United, saying that big corporate money was speech.
• Or the five judges (including Scalia) who gutted the Voting Rights Act of 1965.

The judiciary controls many, many aspects of our lives; therefore, the importance of having federal judges who reject far right-wing ideology cannot be overstated.

On to cartoons. Who will walk in Scalia’s shoes?

COW Scalia 2

Obama has about as much chance of getting a Supreme Court nominee approved by Senate Republicans as he does of convincing the average GOP voter that his Hawaiian birth certificate is genuine:

COW Scalia 3

GOP dilemma: Let’s honor Scalia by ignoring the Constitution:

COW Ignore the Constitution

Obama gets a lesson in the Senate’s Advise & Consent process:

COW Clarence Votes twice

The Battle to Replace Scalia

With the death of Justice Scalia, the Supreme Court has become even more of a BFD than it usually is in our politics. Republicans are setting the terms of the current battle by saying that Mr. Obama should not even bring forward a candidate for the Senate’s Advise and Consent process.

The Republicans fought for 40 years to get a Conservative majority, and will not give that up without a fight. This is the first time since Clarence Thomas replaced Thurgood Marshall in 1991 that the ideological balance on the Court could actually change. In the last six cases, from Ginsberg through Kagan, either a Republican president filled the seat of a conservative justice, or a Democratic president filled the seat of a liberal justice.

So the stakes are very high, both substantively and politically.

On the other hand, the voters might rediscover that presidential elections should be about serious issues. At the top of the list: Who will pick the justice that creates a new Supreme Court majority?

A brief history from Paul Waldman at the WaPo:

The Senate…used to approach nominations to the Supreme Court with a simple standard: If the nominee was qualified and wasn’t a criminal or a drunk, he or she would probably get confirmed with the support of both the president’s party and the opposition…But we may have entered an era with an entirely different starting presumption: not that a well-qualified nominee deserves confirmation, but that senators ought to oppose any nomination from a president of the other party.

Waldman provides this list of recent nominees and how the Senate voted:

Antonin Scalia (1986): 98-0
Anthony Kennedy (1987): 97-0
Clarence Thomas (1991): 52-48
Ruth Bader Ginsburg (1993): 96-3
Stephen Breyer (1994): 87-9
John Roberts (2005): 78-22, 20 of 42 Democrats in favor
Samuel Alito (2005): 58-42, 4 of 45 Democrats in favor
Sonia Sotomayor (2009): 68-31, 9 of 40 Republicans in favor
Elena Kagan (2010): 63-37, 5 of 40 Republicans in favor

Since Chief Justice Roberts in 2005, we see that our political divide is not simply about Congress and the President, the Supreme Court is now also entrenched in the polarization. Justice Kagan’s approval is instructive. She was well-qualified, (a former dean of Harvard Law School and Solicitor General), and had no absurd legal views. Nevertheless, only five Republicans voted to confirm her. Three of those senators — Richard Lugar, Olympia Snowe, and Judd Gregg — were moderates who are no longer in the Senate.

In the case of a Scalia replacement, every Republican senator trying to decide what to do will know that if they vote to confirm any Democratic nominee for this seat, a primary challenge from the right will probably happen whenever they run for re-election.

But the GOP-controlled Senate ignores its responsibilities at its peril. 24 GOP-held Senate seats are up for election this cycle to just 10 held by Democrats. A few (enough) of those GOP Senators are in states that were won in 2012 by Barack Obama including: Kirk in Illinois, Toomey in Pennsylvania, Portman in Ohio, Ayotte in New Hampshire, Johnson in Wisconsin, and Rubio’s open seat of Florida. Since Republicans hold 54 seats, losing 4 of them could flip Senate control.

But, this is a situation where the Democrats really need to get control of their message machine, or they’ll risk getting overrun again in the perception battle.

The best guess is that is unlikely that control of the Senate changes hands in 2016, so divided government will likely remain with us, assuming a presidential win for the Democrats. As Scott Lemieux says in the New Republic:

As the stakes of Supreme Court nominations get ever higher, getting Court vacancies filled during periods of divided government is going to become increasingly difficult. Depending on the results of the 2016 elections, this dysfunctional future could very soon become our present.

Could a non-functioning Supreme Court finally be the last straw? We might soon find out.

We know that Chief Justice Roberts is concerned with the public perception of SCOTUS as an institution. Perhaps if the White House and the Chief Justice held discussions about the President nominating a moderate, and then Roberts spoke publicly about the need for quick consideration, the political logjam might be broken.

Absent that, it’s hard to avoid the feeling that we are heading towards a breaking point in this country as the polarization stretches the functioning of our government in every arena.

Our Constitution gives the Senate veto power over executive and judicial branch appointments with no mechanism for resolving a deadlock. That is a bug, not a feature.

It’s amazing that the system has remained functional for as long as it has.

Sunday Cartoon Blogging – February 14, 2016

Happy Valentine’s Day. The news of Week That Was included the New Hampshire primary, another power grab by the Supreme Court, the Zika virus, and proof of the existence of gravitational waves.

Some people have an embarrassment of riches on Valentine’s Day:

COW Valentines Day

NH reminds Hillary about kids in a different way than before:

COW Comeback Kid

Sanders met with Sharpton before heading to South Carolina:

COW Sharpton Sanders

When the history of early 21st Century US is written, the villains will already be wearing black:

COW EPA Court

Zika virus is all over the news:

COW Zika

Proving Einstein right about gravitational waves took 100 years. Hope we do better with market panic:

COW Gravity Waves

Hispanic Millennials Could Hold Key to 2016

Two of yesterday’s news stories may work together to provide a key to the 2016 election. First, from Pew Research: (emphasis by the Wrongologist)

Hispanic millennials will account for nearly half (44%) of the record 27.3million Hispanic eligible voters projected for 2016—a share greater than any other racial or ethnic group of voters…

The median age among the nation’s 35 million US -born Latinos is only 19, and Latino youth will be the main driver of growth among Latino eligible voters for the next two decades.

Latinos made up 17.4% (55 million) of the nation’s population in 2014. They were 11.4% of eligible voters, but only 7.3% of actual US voters. But percentages are not the full story. In 2016, a projected 11.9 million Hispanic millennials will be eligible to vote. Pew gives some perspective on Hispanic voters, who vote at lower levels than other groups:

Pew Hisp Voters

The chart above shows that in 2012, fewer than half (48%) of Hispanic eligible voters cast a ballot. By comparison, 64.1% of whites and 66.6% of blacks voted.

Can that be turned around? Part of the answer is that Hispanic millennials register to vote at a lower rate than other millennial groups. 50% of Hispanic millennial eligible voters said they were registered to vote in 2012, compared with 61% of white millennials and 64% among black millennials. And only 37.8% of them actually turned out to vote in 2012.

Although they are the largest cohort of Hispanics, they vote less often. The voter turnout rate among Latino millennials also trails that of other millennial groups. 47.5% of white millennials and 55% of black millennials voted in 2012.

Given that Hispanic millennials are the largest bloc of Hispanic voters, and since they are less likely to cast a ballot than older voters, there is an opportunity for either party if they can turn out Hispanic millennials.

The second piece of news bears on the turnout discussion. Yesterday, the US Supreme Court (SCOTUS) took up the case US vs. Texas. This case, brought by 26 Republican-controlled states, addresses whether President Obama exceeded his powers by using an executive order to try to shield millions of illegal immigrants from deportation. Mr. Obama’s immigration program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), is currently blocked by adverse decisions in several lower courts.

DAPA is very popular among Hispanics, particularly with millennials.

Mr. Obama’s executive order has become one of the most contentious topics in the nation’s political debate. Every Republican candidate for the party’s presidential nomination is against Obama’s plan. The Democratic candidates all say they would keep it in place.

If SCOTUS sides with Texas, eliminating the DAPA program, Hispanics will have a reason to register and to vote in the 2016 election, since, should a Republican become president, there is no possibility that a DAPA-like program would be passed.

If SCOTUS sides with the president, Hispanics should turn out to elect a new Democrat president, who will ensure this executive order remains in place.
It is expected that the Court will take up the case in April, and there will be a decision in June, right in the middle of the 2016 election cycle, so this issue may energize Hispanic millennials and Hispanics generally to turn out in 2016.

We all know that turnout matters. Pew used the Cook Political Report’s analysis of toss-up states that projects nine states as tossups: Colorado, Florida, Iowa, Nevada, New Hampshire, Ohio, Pennsylvania, Virginia and Wisconsin; and looked at the Hispanic voter demographics in those states:

Pew Tossup states

Hispanic turnout will clearly matter in Florida, Nevada and Colorado, and possibly in Virginia and Pennsylvania. They add up to 67 electoral votes and could be a key to the 2016 elections. And despite the immigration controversy, nearly all of these voters are US born. According to Pew, the second-largest group of eligible voters is adult Hispanic immigrants who are in the US legally, and are naturalized citizens. Between 2012 and 2016, 1.2 million became citizens.

The Hispanic vote could make it an interesting fall.

The Wrongologist

Geopolitics, Power and Political Economy

Category: Supreme Court