Category: Supreme Court

Monday Wake Up Call – September 28, 2020

The Daily Escape:

Dead Horse State Park in Moab, UT – September 2020 photo by schumats1

“Few people have the imagination for reality” – Johann Wolfgang von Goethe

Here are a few stark realities that we couldn’t have imagined even five years ago:

First, a minority faction governing the majority with increasingly unpopular policies imposed through increasingly undemocratic means is not exactly a formula for a stable democracy. This is something that Wrongo wrote about last week. If somehow after the November election, that script is flipped, and we have a majority governing an ethno and religious-purity minority who won’t recognize the majority’s legitimacy to govern, we’re headed for dark times.

Once Coney Barrett’s confirmed, we’ll again be living in a Phyllis Schlafly country. Schlafly’s far-right, anti-feminist ideology rules the Republican Party, and soon, the Supreme Court. But it’s still contrary to American public opinion. A majority of Americans think abortion should remain legal, and 75% support Schlafly’s old enemy, the ERA.

But, unpopular ideologies can prevail whenever we’re complacent about our beliefs.

Second, we have a president who is a faker and a liar. The NYT has gotten its hands on many years’ worth of Trump’s federal income tax documents. You know, the ones he and his attorneys have worked so hard to suppress. From Eric Boehlert:

“In life outside the MAGA bubble, the tax return revelation is a big one because it’s hard to explain why, for the last decade, Trump has written off $26 million worth of dubious “consulting” fees. And it certainly appears the Trump Organization paid Ivanka Trump massive consulting fees for no-show work. All of this coming just five weeks before the election. The Times blockbuster is one of the more seismic scoops in campaign history.”

The Times’ story will most likely be a huge problem for Trump among independents and suburban voters who may have voted for him in 2016. Trump’s “fake news” dismissal of the tax story will only work among his super-loyal followers.

Kevin Drum turned the NYT’s reporting into a graph:

Long story short, since 2012 Trump’s been losing money every year. He’s lost money at pretty much everything he’s ever done. The only exception is The Apprentice and the licensing money it enabled.

From Drum:

“Trump’s ability to squander the money he inherited is breathtaking. He’s also deeply in debt, it turns out, with about $300 million in loans coming due over the next few years. It’s no wonder he’s been so assiduous at trying to turn the Oval Office into his own private ATM.”

That kind of financial exposure makes Trump a national security risk.

Third and finally, here’s Wrongo’s framing of the issues for Tuesday’s debate. This, from Michael Grunwald in Politico: (emphasis by Wrongo)

“The US budget deficit tripled this year to $3.3 trillion, by far the highest ever. The US economy shrank at a 31.7% annual rate in the second quarter, by far the worst ever. The trade deficit is at its highest level in 12 years. Consumer confidence is at its lowest level in six years. Unemployment claims, which had never topped 700,000 in a week before March, have topped 700,000 every week since March.

Farm bankruptcies are rising…Homicides are rising in America’s cities after decades of decline, while a series of police killings of unarmed Black Americans has triggered…civil unrest. The West Coast is on fire, and 2020 may turn out to be the hottest year in recorded history. America’s reputation abroad is the worst it’s been since the Pew Research Center began doing international surveys.”

And remember that virus thingy that Trump says isn’t a big deal? It has already killed 200,000+ Americans and is still spreading in 29 states.

Biden ought to just read that as his opening statement in tomorrow night’s debate, and then just say:

“Do you think you’ll be better off with four more years of these disasters that Trump has brought us? “

Time to wake up America! We have to imagine realities that would have been fiction just a decade ago. Once we wake up to how terrible our present state is, we need to vote in overwhelming numbers to gain sufficient political control to deliver a progressive future for all.

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Sunday Cartoon Blogging – September 27, 2020

Trump has announced that Amy Coney Barrett is his nominee to the Supreme Court. She will make the sixth Catholic member of the court.

This highlights the impact that Leonard Leo of the Federalist Society has had on the makeup of the Court. Leo selects Trump’s judicial nominees. In addition to his role at the Federalist Society, Leo is a board member of Opus Dei’s Catholic Information Center. Attorney General Bill Barr and White House Counsel Pat Cipollone have also been board members.

No one should object to Catholics, or even to having a majority of them on the Court. But, the Court, like the Electoral College, have become the last bastions of power for the minority in America. As currently constituted, they will block the rise of a broad coalition of diverse progressives from power for at least another generation. On to cartoons:

 

 

 

 

 

 

 

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The Seat is Lost, The Election Isn’t

The Daily Escape:

Fall comes to Grand Portage, MN –September 2020 photo by Valjcoo

We now know that the Republicans have the votes to confirm another conservative Supreme Court justice before the election. Mitt Romney announced Tuesday that he supports moving forward with a Senate vote on Trump’s nominee to replace Ruth Bader Ginsburg. This means that Democrats have no shot at stopping the confirmation process before November’s election.

More tyranny by the minority. This might as well also be Romney’s announcement that for better or for worse, he’s running for president in 2024.

Substantively, a 5-3 conservative vs. liberal breakdown on the Supreme Court was already going to result in the death of the ACA when the justices hear the case on November 10. So, a 6-3 division probably doesn’t mean that we’re going to be all that much worse off, legally.

The remaining question is whether the nominee will be the Cuban-American judge from Florida. Choosing her will probably secure the state for Trump in November, so why not just go ahead and make the entire Supreme Court a political fiasco?

In fact, getting the complete conservative takeover of the Supreme Court done before the election may keep more than a few Trumpists away from the polls on November 3d.

Choosing an ideologically pure judge is far more important to Republicans than it is to Dems, who rarely make it an article of faith in our elections. During the Senate Judiciary Committee hearings, the Dems will take the opportunity to demonstrate again how ineffectual they are.

They need to be careful not to engage in something suicidal just before what is truly the most important election in our lifetimes. As Wrongo has said, the loss of this seat was predetermined by Hillary’s loss in 2016.

Of course Democrats should drill deeply into whomever the Republicans nominate; that’s how the game is played.  Of course they should oppose the nominee in the Judiciary Committee, and then lose by a straight-party vote. Of course they should make principled speeches in the well of the Senate before they lose another straight party line vote that will confirm Trump’s nominee.

They should scream about it, say the gloves are off, and then go out and take the White House and the Senate.

Dems need to get back to the totally mismanaged COVID response. It’s the overriding issue of this election, even more significant than the death of Ginsburg. There will be at least 250,000 COVID deaths by the time of the election, and no Republican cares or will say anything about it.

Dems need to get back to asking if Trump has delivered a better life to us. He hasn’t. There were no big wage gains, and no 5% annual GDP growth. He’s only delivered huge unemployment, and unnecessary deaths. The rich have gotten enormously richer, and there is the hate, and all of the lies.

But the Electoral College still looms large. Wrongo’s former colleague is driving across America on the back roads, photographing what he sees. And what he sees is mostly empty spaces. As he moves from urban and suburban areas to exurban and rural areas, the Biden signs disappear, Trump signs dominate, and finally become exclusive. He documents front yards with temporary canopies set up to hand out Trump paraphernalia. Pickups looking ISIS-like with Trump and American flags flying from poles mounted in the truck beds. Here’s a photo of his taken in Virginia City, NV on 9/20:

September 2020 photo by OHeldring

The flags are for Trump, the Kansas City Chiefs, and “Don’t Tread on Me.” Add in the vintage Ford, and it’s an ordinary day in rural America!

An important indicator for November 3d will be voter participation in rural areas, which we should expect to be very high. This November, Wyoming will cast three Electoral College votes, one for every 190,000 residents, while California will cast 55 votes, or one for every 715,000 residents. One person, one vote has died. Here’s Steve Coll with some perspective about the Electoral College:

“The system is so buggy that, between 1800 and 2016….members of Congress introduced more than eight hundred constitutional amendments to fix its technical problems or to abolish it altogether.”

He reminds us that in 1969, the House passed a Constitutional Amendment to establish a national popular vote for the White House. At the time, Nixon called it “a thoroughly acceptable reform”. Alas, it was filibustered by Southern Senate segregationists.

These days, just two words sum up the state we’re in: “Stay Safe.”

It only took four years for Trump to wreck everything. Whenever the Trump years pass, our democracy, assuming that it endures, needs a major repair job.

That starts on November 3.

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Roberts Returns to the Dark Side

The Daily Escape:

Lake Blanche, Upper Cottonwood Canyon, UT – 2020 Galaxy S10 photo by criked

On Tuesday, the Supremes issued another opinion. This one narrows the First Amendment’s separation of church and state. The case, Espinoza v. Montana Department of Revenue, was a 5-4 decision, with the five conservative justices in the majority, and the four liberal justices dissenting.

From Slate: (emphasis by Wrongo)

“The Montana Constitution contains a “no-aid” provision that bars the state from providing public funds to religious institutions, as do 37 other state constitutions. To work around this rule, the Legislature granted tax credits to residents who donate money to Big Sky Scholarships, which pays for students to attend private schools, both secular and sectarian. (Montana’s demographics ensure that the only sectarian schools that participate are Christian.) In other words, residents get money from the state when they help children obtain a private education, including religious indoctrination. In 2018, the Montana Supreme Court found that this program violated the state constitution’s no-aid clause. But instead of excluding sectarian schools, the court struck down the whole scheme for all private education.”

Chief Justice John Roberts’s opinion revived Montana’s tax credit scheme when he announced a new Constitutional principle: Once a state funds private education, “it cannot disqualify some private schools solely because they are religious.”

Twenty-nine states, the District of Columbia, and Puerto Rico all provide tax credits or vouchers to families that send their children to private schools. Under Espinoza, they must now extend these programs to private religious schools. More from Slate:

“This decision flips the First Amendment on its head. The amendment’s free exercise clause protects religious liberty, while its establishment clause commands that the government make no law ‘respecting an establishment of religion’.”

In essence, Roberts is now saying that the Establishment Clause supersedes the Free Exercise Clause.

Some background: In Zelman v. Simmons-Harris, the Supreme Court ruled that, under the Establishment Clause, states were allowed to fund private schools through vouchers or tax credits. Now the court has declared that, under the Free Exercise clause, most states are compelled to fund private religious schools.

Over the past 18 years, the Court’s conservative majority has revolutionized church-state law.

How did the court do this? The barrier between church and state took a hit when five justices permitted state financing of sectarian schools in Zelman. It nearly collapsed when the court expanded religious institutions’ access to taxpayer money in 2017’s Trinity Lutheran v. Comer, which held that states cannot deny public benefits to religious institutions simply because they are religious.

The court claimed that their new rule was actually hidden in the meaning of the First Amendment’s Free Exercise clause—even though, as Justice Sotomayor pointed out at the time, separating church and state does not limit anyone’s ability to exercise their religion.

More from Slate. Roberts, from the Espinoza opinion: (italics are in the quote)

“A state violates free exercise…when it “discriminate[s] against schools” based on “the religious character of the school.” The government, Roberts explained, has no compelling interest in preserving the separation of church and state beyond what the First Amendment requires. Nor does the government have any interest in protecting taxpayers’ right not to fund religious exercise that infringes upon their own beliefs.”

Said the Chief Justice:

“We do not see how the no-aid provision promotes religious freedom…”

In theory, states could abolish public funding of private schools entirely to avoid funding religious schools, but that’s what the Montana Supreme Court did. And Roberts just condemned that decision as “discrimination against religious schools”, because Montana had originally funded all private schools.

Roberts may be a master at minimizing losses (hits to the credibility or reputation of SCOTUS), while maximizing returns for his masters (conservative victories). In most of the cases where he has sided with the liberals, his opinion has basically boiled down to “lie better the next time.”

That was true in the abortion and DACA cases this term, and in the Census case last term.

So, based on this decision, religious entities (of the right sort) are not only eligible for government funding, they are entitled to it. That, and more equipment for the military.

This is what the America conservatives want. What could go wrong?

The state requires children to go to school. It also provides a school system for those children in order to meet that requirement. If you choose to send yours to a private, accredited/licensed school instead, that cost should be borne by you, not by the taxpayers.

Public funding for religious schools, along with tax-free status for churches, gives too much political power to religions.

That’s exactly why separation of Church and State is so crucial.

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Sunday Cartoon Blogging – April 12, 2020

It was supposed to be all over by Easter. But this weekend, the time that we were supposed to get back to work, brings us 2000 COVID-19 deaths on a single day, and a mass grave on NYC’s Hart Island. One thing we’ve learned is that Trump isn’t a clairvoyant:

When you leave late, you get there late:

It takes a team:

Wearing a red hat doesn’t make America great. What DOES make our country great is the dedication and drive to serve that’s demonstrated by so many of us. The American spirit doesn’t require fondling the flag, or bloviating in front of the media. Our first responders and our service workers make us proud to be Americans.

Vote by mail should be the answer:

In Washington State when you vote by mail, you retain a paper copy. The state can call the voter and ask them what their vote was, if necessary. You get a few weeks to decide on the issues and which candidate you prefer.

It’s not socialism if it helps you. If your check was passed by Republicans, it’s a STIMULUS:

Real life has become a scary movie:

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Supreme Court Voting Remotely, Denies Wisconsin Voters the Right to Vote Remotely

The Daily Escape:

Super moon, Crested Butte, CO – 2020 photo by itsaberglund

First, here are the latest national pandemic numbers from The COVID Tracking Project: (as of 4/7):

  • The good news is that the daily rate of increase in new infections is now in single digits (see green above).
  • Deaths have again spiked, and the percentage of deaths to total cases is rising steadily.
  • Daily testing has stalled (again) at about 150,000/day. Growth in testing is again lagging growth in new infections.

Next: The Wisconsin primary debacle: Wisconsin held its presidential primary on Tuesday, and on Wednesday, Bernie Sanders dropped out of the race for the Democratic nomination. Unifying the Party will be much easier than in 2016. The stakes are different, the mood is different, and Bernie seems to like Biden more than he liked Hillary.

But that was far from the most surprising thing about the Wisconsin primary. The big Wisconsin news was that the US Supreme Court decided a case called “Republican National Committee v. Democratic National Committee” along political lines. The symbolism is glaring.

The issue before the Court was whether to stay a lower court’s decision that would have extended absentee balloting for a week due to the Coronavirus. And the most notable race wasn’t the Democrat’s primary. It was a conservative Republican’s battle to keep his seat on Wisconsin’s state Supreme Court. From the WaPo: (brackets by Wrongo)

“The scant, 10-page opinion issued Monday night highlighted the [US Supreme] court’s ideological and partisan divide. The justices’ inability to speak with one voice on matters as serious as the coronavirus pandemic and voting rights raised concerns about the legal battles bound to proliferate before the fall elections.”

The great irony in the SCOTUS decision is that the justices didn’t meet together. They are practicing social distancing, because of the Coronavirus, conducting their business via teleconferences. They have also suspended all public Court proceedings for the current term, because, you know, public safety.

But the Supreme Court’s Republican majority felt it was proper to insist that Wisconsin’s normal rules about elections be followed, and hold the primary as if there was no pandemic, no public health threat.

The best comment on the ideological divide in America today came from Tom Sullivan’s column, where he quotes a 2018 observation about conservatism by Frank Wilhoit: (emphasis in the original)

“Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect….So this tells us what anti-conservatism must be: the proposition that the law cannot protect anyone unless it binds everyone, and cannot bind anyone unless it protects everyone.”

More on Wisconsin from Sullivan:

“This morning’s online headline at the Washington Post reads, ‘The coronavirus is infecting and killing black Americans at an alarmingly high rate.’ Wisconsin Republicans on Tuesday made them stand on line in Milwaukee for hours to vote during a deadly pandemic. That will show them.”

And this tweet from Sen. Cory Booker underlines the evil intent:

“Milwaukee is home to the largest African-American community in Wisconsin. Don’t tell me that forcing people to choose between their health and their right to vote today is anything but an appalling act of voter suppression. https://t.co/4Leq1CtMHZ”

— Cory Booker (@CoryBooker) April 7, 2020

Chief Justice Roberts may claim that he is only calling balls and strikes, but he’s using a different strike zone for his friends.

Finally, let’s spend a moment remembering that both John Prine and Bill Withers died this week, Prine from the Coronavirus.

Both released their debut albums in 1971. Both were among the true greats. Here’s a Prine song that shows his social consciousness. Written in 2005, it was prescient. He wrote about the kinds of people who would eventually lead the nation in 2020 in his “Some Humans Ain’t Human”:

Sample Lyric:

Have you ever noticed When you’re feeling really good There’s always a pigeon  That’ll come shit on your hood Or you’re feeling your freedom And the world’s off your back  Some cowboy from Texas Starts his own war in Iraq

Those who read the Wrongologist in email can view the video here.

And this Withers song about Vietnam has always hit Wrongo hard. “I Can’t Write Left-Handed”:

Those who read the Wrongologist in email can view the video here.

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Stimulus Money is Going to Churches

The Daily Escape:

View of Mt. Rainer from Reflection Lake WA – 2018 photo by NathanielMerz

Here is the 7-day look at the national numbers for COVID-19:

The rate of growth in deaths as a percentage of cases continues to rise, while the rate of increase in cases picked up slightly on 4/6, although overall, it is slowing vs. 7 days ago. Testing is still growing, although the rate of growth in tests is now about equal to the growth in cases.

A little-noticed part of the $2 trillion stimulus package allows the federal government to provide money directly to US churches to help them pay pastor salaries and utility bills. From NPR: (emphasis by Wrongo)

“…the $2 trillion economic relief legislation…includes about $350 billion for the Small Business Administration (SBA) to extend loans to small businesses facing financial difficulties as a result of the coronavirus shutdown orders. Churches and other faith-based organizations are among the businesses that qualify for aid under the program, even if they have an exclusively religious orientation.

So, we’re not simply speaking of not-for-profit subsidiaries of churches such as charities. The Trump administration is saying churches themselves will qualify for direct loans. Apparently, the program is based on the average monthly payroll of a church school or the parish, which is extrapolated to eight weeks. The cost of maintaining staff for that period becomes the loan amount.

From the SBA’s statement:

“Faith-based organizations are eligible to receive SBA loans regardless of whether they provide secular social services….No otherwise eligible organization will be disqualified from receiving a loan because of the religious nature, religious identity, or religious speech of the organization.”…

The SBA’s regulations currently exclude some religious entities. Because those regulations bar the participation of a class of potential recipients based solely on their religious status, SBA said it will decline to enforce those subsections and will propose amendments to conform those regulations to the Constitution.

The SBA is quoting a 2017 Supreme Court decision, Trinity Lutheran v. Comer, which was the first time the Court said the government is required to provide public funding directly to a religious organization. Chief Justice Roberts wrote for the majority in the 7-2 decision. The key argument was that Trinity Lutheran faced discrimination solely because of its identity as a church. That, the Court decided, was discrimination. From the opinion:

“There is no question that Trinity Lutheran was denied a grant simply because of what it is….A church.”

The grant was for refurbishing the church’s playground.

But in this case, the SBA is offering direct funding of religious entities with money provided by tax dollars from the rest of us. We’re likely to see this in the courts soon.

This isn’t the first time that the Trump administration provided funds directly to churches, synagogues, mosques and other religious organizations. In 2018, the Federal Emergency Management Agency (FEMA) changed its rules to make houses of worship eligible for disaster aid.

First Amendment watchers have reacted. Alison Gill, legal and policy vice president of American Atheists said:

“The government cannot directly fund inherently religious activities….It can’t spend government tax dollars on prayer, on promoting religion [or] proselytization. That directly contradicts the Establishment Clause of the First Amendment.”

If they want Federal funds, shouldn’t they pay Federal taxes?

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The Supreme Court Goes Back to Work

The Daily Escape:

Pyramids viewed from Cairo Street, Egypt – photo by Hossam Abbas

The Supreme Court’s new term begins next Monday, and much of America’s culture wars will move in front of the bench for adjudication. Some of the issues being litigated include abortion, gay rights and gun control. It’s no secret that conservatives control the court, and its liberal wing is in retreat. This could be a momentous year in shaping the country’s socio-cultural future.

On Monday, October 7th, the justices will hear arguments in the case Kahler v. Kansas, regarding whether the 8th and 14th Amendments allow a state to abolish the insanity defense. Four states, Kansas, Utah, Idaho and Montana have abolished the insanity defense. It shouldn’t be a surprise that Kansas says yes, and so does the Trump administration.

Also on Monday, they will hear Ramos v. Louisiana, regarding whether the 6th Amendment guarantee of a unanimous jury verdict to convict someone applies to the states. Currently, Louisiana and Oregon permit non-unanimous juries.

On Tuesday, the court hears a case concerning whether gay and transgender people are protected by federal civil rights laws that bar employment discrimination. Three workplace discrimination cases will be heard. Two of the three cases ask whether “because of sex” in Title VII of the Civil Rights Act of 1964 prevents an employer from disadvantaging employees on the basis of their gender identity or sexual orientation. Fewer than half the states have laws against firing workers because they are gay or transgender. Now the Supremes will decide if the federal civil-rights laws protect the 8.1 million LGBT workers in America.

It may not surprise you that the Trump administration says Title VII doesn’t apply to gay and transgender workers, contrary to the view of the Equal Employment Opportunity Commission.

On November 12th, they will visit Trump’s effort to end DACA, the Obama program that protects mostly Hispanic young adults from deportation. The case is Department of Homeland Security v. Regents, University of California, where three cases were consolidated for argument in which lower courts decided that the Trump action violated the federal Administrative Procedures Act.

Also scheduled for Nov. 12 is a case in which a US border patrol officer shot and killed an unarmed Mexican teenager who was not on US soil, but hiding in a culvert between the US and Mexico. The question is whether federal courts can award damages to the family for the agent’s actions.

On December 2nd, they are scheduled to hear a major gun rights case. The case is NY State Rifle and Pistol Assn. v. City of New York. The challenge is to the city’s ban on the transport of licensed and unloaded guns outside the city limits. But the city amended the law, and is arguing that the case is now moot, since it has given the challengers what they sought. The case may be dismissed.

Among possible cases that have not yet been scheduled are two appeals regarding Republican-backed abortion restrictions enacted in Louisiana and Indiana. If the court were to take either or both of those cases, it would raise the possibility of a ruling that further curbs abortion rights.

The Louisiana case concerns a challenge by an abortion clinic to state requirements that doctors who perform the procedure must have “admitting privileges” with local hospitals. It is similar to a Texas law that the Supreme Court struck down in 2016, when Justice Anthony Kennedy sided with the court’s liberals. But last year, Kennedy retired and was replaced by Bret Kavanaugh.

It would be extraordinary if they take up this case and then overrule a precedent set just three years ago. The only thing that’s different is the composition of the court.

Looking further ahead, we may see contentious arguments on the limitations of presidential power. Likely subjects include the president’s push for the power to remove the director of the Consumer Financial Protection Bureau; executive privilege in battles over Trump’s tax returns; and use of a national emergency designation to use money appropriated elsewhere to fund the border wall.

And finally, there’s impeachment. In April, Trump tweeted that if “the partisan Dems ever tried to impeach”, he would “first head to the US Supreme Court”. There is little doubt that the Supremes would move quickly to hear such a case.

It wouldn’t be smart for Trump to expect them to come to his rescue during impending impeachment proceedings. In 1993 Chief Justice William Rehnquist wrote for a unanimous court that impeachment authority “is reposed” in Congress, “and nowhere else”.

Then, if the House of Representatives actually impeached Trump, Chief Justice John Roberts will find himself playing a constitutionally required role: presiding over the president’s removal trial in the Senate.

All in, a pivotal term for the Supremes and for America.

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Partisan Gerrymandering Overturned in North Carolina

Daily Escape:

Colchuk Lake in the Enchantments, part of the Cascade Mountains, WA – August 2019 photo by atgctgtt

This summer, the Supreme Court decided 5-4 in the case Rucho v. Common Cause that federal courts could not invalidate maps based on partisan gerrymandering, although states might still do so.

At the time, Wrongo snarked about the decision:

“Wrongo’s shorter John Roberts: The federal government can’t do anything about your state stripping you of representation. You have to go back to the people who stripped you of representation and ask them.”

Despite Wrongo’s skepticism, on Tuesday, the North Carolina (NC) state Supreme Court put an end to eight years of Republican partisan gerrymandering when it ruled against NC Republicans who had installed it in 2011. From the Daily Kos (DK):

“On Tuesday, a three-judge panel delivered a major blow against Republican gerrymandering when it struck down North Carolina’s state Senate and state House districts for violating the rights of Democratic voters.”

More:

“The state court ruled that these maps, designed to entrench Republican rule, ran afoul of the state constitution’s guarantee of free and fair elections. These illegal districts were so extreme that they helped Republicans to maintain their legislative majorities in 2018’s elections even though Democratic candidates won more votes statewide. If fairer districts are implemented for 2020, they could put Democrats in striking distance of a majority in one or both chambers.”

NC’s current state-district maps had to be redrawn again in 2017, after the US Supreme Court affirmed a lower court’s ruling that they constituted an unconstitutional racial gerrymander.

Now, NC’s voters will be voting in new state election districts for the third time since 2011.

This decision is similar to one in PA in 2018, where a state court ruled that PA’s congressional map was unconstitutionally gerrymandered. It also relied on the PA state constitution, so its decision was not reviewable by the US Supreme Court.

When SCOTUS decided not to rule on the constitutionality of partisan gerrymandering, it said quite clearly that state courts could rule on the question based on the individual state constitutions. NC now joins PA as states in which this strategy has succeeded.

The NC and PA decisions are reminders that we can challenge bad laws under state constitutions. States are free to recognize more rights than those enumerated in the US Constitution, they just can’t recognize fewer rights. This is the sort of “federalism” that conservatives hope you never learn about.

More from DK:

“While this case only concerns the maps in one state, every state constitution has provisions similar to North Carolina’s that could be used to challenge partisan gerrymanders so long as there’s a receptive and fair-minded state Supreme Court majority to hear such a case. This ruling therefore underscores the importance of Supreme Court elections in key swing states next year, including Michigan, Ohio, and Wisconsin. Progressive victories in these races would go a long way toward blocking the GOP’s lopsided control over redistricting as we head into the next round of redistricting following the 2020 census.”

The NC court decision was 345 pages long. The opinion really makes it clear how there’s just no possible defense for what the GOP was doing in NC. In addition, the opinion might as well have had “John Roberts is an embarrassing hack” stamped on every page.

This doesn’t mean that Democrats can relax between here and 2020. Michigan, North Carolina, Ohio, Texas, and Wisconsin are states where 2020 state Supreme Court elections could either give Democrats a majority, or set them up to gain one in subsequent elections. That will be crucial in the next decade, since the Census will also take place in 2020. There will be new voters to count, or to disenfranchise, depending on your Party’s ideology.

This war must be won in the trenches, not by the national candidates.  Wisconsin gave us a bad example in April. Although Democrats in Wisconsin won the popular vote in 2018, they didn’t work hard enough to get their state Supreme Court nominee over the finish line in 2019, despite having a progressive plurality.

Democrats have to realize that they won’t win if they think only certain elections are important enough to get out and vote.

These battles are local, not national, and now that the US Supreme Court will be sitting on its hands for a decade or more, these are fights we must win.

Democrats can’t afford not to contest local judicial elections.

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Saturday Soother – August 24, 2019

The Daily Escape:

Ground Swell – 1939 painting by Edward Hopper

In news you most assuredly haven’t seen, the 10th District US Circuit Court of Appeals in Denver ruled that “Faithless Electors”, people who do not cast their votes in the Electoral College for the winner of their state’s presidential election, are now free to vote for anyone they want.

This Colorado case came about because in 2016, one elector refused to vote for the state’s winner, Hillary Clinton, and instead, voted for John Kasich. The Colorado Secretary of State ordered him to cast his vote for Clinton, or be replaced. He refused and was subsequently replaced with an elector who voted for Clinton.

The faithless elector sued, and the 10th Circuit decided in his favor, saying that the Constitution provides:

“…Presidential electors the right to cast a vote for president and vice president with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right.”

The court traced the history of faithless electors back to 1796, when Samuel Miles voted for Thomas Jefferson instead of John Adams. Congress counted his vote. In the 2016 election, there were 13 anomalous votes from three states, and Congress also counted those votes.

This decision could have major ramifications for future presidential elections. The attorney for the faithless elector, Jason Wesoky, said the Court’s ruling essentially makes the laws requiring electors to vote for the state’s winner unenforceable. That impacts 16 states today.

It is even more significant, since a growing number of states are rethinking their Electoral College systems in response to the 2016 election. The 16 states that have passed laws that award all of their electoral votes to the winner of the national popular vote, currently equal 196 electoral votes.

If states representing another 74 electoral votes pass it, the so-called National Popular Vote bill will control the majority of votes in the Electoral College. The bill has passed at least one chamber in 8 additional states with 75 additional electoral votes.

This Appeals Court’s decision means that yet another crucial issue to  the future of our democracy will be in the hands of the Supreme Court, once the appeal gets to them.

Enough of news you won’t ever use, it’s time for your Saturday Soother!

Start by brewing up a mug of Honduras Marcala coffee ($19/12oz.) from Santa Barbara’s Handlebar Coffee Roasters. The founders are professional cyclists who met while riding in the Amgen Tour of California, America’s best bike race.

Now, settle back and listen to something very different, a guitar band from Mali called Tinariwen. They are Tuareg musicians from northern Mali. They play rolling melodic lines and loping rhythms that evoke the desert sands of the Sahara. The band’s name literally means “deserts” in their language, Tamasheq. Here they are playing “Kel Tinawen” from their upcoming album “Amadjar”, available on September 6th:

The video is of a road trip along Africa’s Atlantic coast as the band and crew cross the Western Sahara. They will be touring the US in September. For an early date in Winston-Salem, NC, some locals on social media are leveling violent, racist attacks against the musicians. Welcome to America!

Here is a translation of the lyrics:

Evil tongues – you can keep talking.

The uprising will be impossible to suppress.

The treachery of your evil words has sold out your brothers for your own interests.

You’ve locked them up in a prison, every last one of them.

You fine talkers, tell us what road you plan to take to avoid us if we remain rooted.

You’ve forgotten the suffering of our parents,

The suffering they have experienced since birth,

Unable to find water, unless they dig wells with their own hands.

Those who read the Wrongologist in email can view the video here.

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