washingtonmonthly--2020-11-20--House Democrats Put GSA Administrator Emily Murphy in a Tough Spot

Earlier this month , I wrote about Emily Murphy , the administrator of the General Services Administration who was refusing to sign an “ ascertainment ” acknowledging that Joe Biden and Kalama Harris had won the election .
As I explained , this simple administrative action is required before the Biden transition team can gain access to intelligence briefings , appropriated funds , office space , the government email system , and ready access to various federal departments .
In 2016 , the ascertainment was signed by Barack Obama ’ s GSA administrator on November 9 , the day after @ @ @ @ @ @ @ as Democrat Hillary Clinton and Green Party candidate Jill Stein were weighing recounts in Michigan , Pennsylvania , and Wisconsin .
In that initial piece , I argued that it was “ unfair ” to expect Murphy to recognize Biden ’ s victory before Donald Trump and Mike Pence were willing to do so .
Twelve days later , with Trump ’ s lawyers going 1-for-31 in court challenges to the election results , Murphy can no longer use this excuse .
As Kyle Cheney reports for Politico , House Democrats are out @ @ @ @ @ @ @ are demanding that GSA Administrator Emily Murphy brief them Monday on the reason she has yet to ascertain Joe Biden ’ s win in the presidential election , warning that her answers will determine whether they intend to haul her to Capitol Hill for a public hearing , along with other senior General Services Administration officials .
“ We have been extremely patient , but we can wait no longer , ” said House Oversight Committee Chairwoman Carolyn Maloney and House Appropriations Chairwoman Nita Lowey , in a four-page letter joined by Reps. @ @ @ @ @ @ @ isn ’ t the first time that Murphy has found herself in the crosshairs of congressional Democrats .
She ’ s been severely criticized for her handling of the lease on the Trump International Hotel in Washington , D.C. , which the GSA ’ s own Inspector General found should have been terminated when Trump became president because of a proviso that no one in the federal government could be awarded the lease .
She was also strongly questioned about her decision to cancel the planned relocation of FBI headquarters to Maryland , @ @ @ @ @ @ @ to prevent a competing hotel from being constructed on the site of the current headquarters blocks from Trump ’ s .
She now faces a difficult decision .
If Murphy refuses to brief the House Democrats or doesn ’ t satisfactorily answer their questions , she will likely be subpoenaed to testify on national television .
The Smith graduate and St. Louis native could , like many Trump officials before her , refuse to comply with the subpoena , but she lacks the executive privilege protections generally granted to White House officials like @ @ @ @ @ @ @ is still fighting a Russia investigation-related congressional subpoena in court , or John Bolton who famously altogether avoided a subpoena to testify in Trump ’ s impeachment inquiry .
There are two ways that Congress can enforce a subpoena .
They can ask the Justice Department to bring charges if there is non-compliance , which sounds like a less than fruitful path while William Barr is attorney general .
The alternative is for it to ask a federal judge to step in and compel Murphy to testify .
Trump ’ s Justice Department @ @ @ @ @ @ @ into court in McGahn ’ s case and dissuading them from even issuing a subpoena to Bolton , lest they lose the case and establish a dangerous precedent .
Murphy can anticipate no such protection from a Biden-run Justice Department and could be charged with contempt next year if she refuses to comply , and Democrats are in a mood to pursue an investigation into this chaotic interregnum .
Yet , she no doubt is feeling tremendous pressure not to avoid this risk by issuing the ascertainment .
It ’ s not just @ @ @ @ @ @ @ her .
Georgia Secretary of State Brad Raffensperger and his wife have received death threats for the simple offense of Raffensperger contradicting Trump about the existence of fraud in his state ’ s elections .
There ’ s no reason to think that Murphy would be spared that kind of intimidation .
The Republican base is convinced that Biden ’ s win is illegitimate , despite the lack of evidence of any widespread fraud .
A Reuters/Ipsos survey conducted between November 13 and November 17 found that only 29 percent of Republican voters @ @ @ @ @ @ @ found unanimity on this point when conducting interviews with Trump supporters : In Reuters interviews with 50 Trump voters , all said they believed the election was rigged or in some way illegitimate .
Of those , 20 said they would consider accepting Biden as their president , but only in light of proof that the election was conducted fairly .
Most repeated debunked conspiracy theories espoused by Trump , Republican officials and conservative media claiming that millions of votes were dishonestly switched to Biden in key states by biased poll workers and @ @ @ @ @ @ @ by Reuters said they formed their opinions by watching emergent right-wing media outlets such as Newsmax and One American News Network that have amplified Trump ’ s fraud claims .
Some have boycotted Fox News out of anger that the network called Biden the election winner and that some of its news anchors – in contrast to its opinion show stars – have been skeptical of Trump ’ s fraud allegations .
This puts the 47-year-old in the position of prioritizing her legal situation against her physical safety , future employment opportunities and @ @ @ @ @ @ @ , she has two options that can skirt or mitigate the worst of these problems .
She can comply with the subpoena and take the heat for refusal to issue the ascertainment .
Democrats and the media would blister her for endangering our national security and worsening our COVID-19 pandemic response .
Still , she ’ d become an Oliver North-style hero to the right and most likely avoid criminal liability .
Alternatively , she could ask the House Democrats to subpoena her and use it as an excuse to go ahead with @ @ @ @ @ @ @ argue that she held out as long as she reasonably could , but she wasn ’ t willing to deny Biden ’ s win under oath or adopt Trump ’ s dubious legal arguments in a congressional hearing .
It wouldn ’ t satisfy everyone , but it ’ s a middle ground .
A reversal of her position might enhance her employment opportunities with corporations and DC lobbies , and trade associations .
If I were her , I ’ d adopt this last option because it has the advantage of being @ @ @ @ @ @ @ It also provides legal protection and , hopefully , some physical protection .
It ’ s a shame that the House Democrats must put her in this position , but they can ’ t just do nothing while Trump attempts a naked coup , nor can they be silent when Biden ’ s presidency is being sabotaged before it has even begun and the nation ’ s health and security are put at needless risk .

Earlier this month, I wrote about Emily Murphy, the administrator of the General Services Administration who was refusing to sign an “ascertainment” acknowledging that Joe Biden and Kalama Harris had won the election. As I explained, this simple administrative action is required before the Biden transition team can gain access to intelligence briefings, appropriated funds, office space, the government email system, and ready access to various federal departments. In 2016, the ascertainment was signed by Barack Obama’s GSA administrator on November 9, the day after that year’s election, even as Democrat Hillary Clinton and Green Party candidate Jill Stein were weighing recounts in Michigan, Pennsylvania, and Wisconsin.
In that initial piece, I argued that it was “unfair” to expect Murphy to recognize Biden’s victory before Donald Trump and Mike Pence were willing to do so. Twelve days later, with Trump’s lawyers going 1-for-31 in court challenges to the election results, Murphy can no longer use this excuse. As Kyle Cheney reports for Politico, House Democrats are out of patience:
Four senior House Democrats are demanding that GSA Administrator Emily Murphy brief them Monday on the reason she has yet to ascertain Joe Biden’s win in the presidential election, warning that her answers will determine whether they intend to haul her to Capitol Hill for a public hearing, along with other senior General Services Administration officials. “We have been extremely patient, but we can wait no longer,” said House Oversight Committee Chairwoman Carolyn Maloney and House Appropriations Chairwoman Nita Lowey, in a four-page letter joined by Reps. Gerry Connolly and Mike Quigley.
This isn’t the first time that Murphy has found herself in the crosshairs of congressional Democrats. She’s been severely criticized for her handling of the lease on the Trump International Hotel in Washington, D.C., which the GSA’s own Inspector General found should have been terminated when Trump became president because of a proviso that no one in the federal government could be awarded the lease. She was also strongly questioned about her decision to cancel the planned relocation of FBI headquarters to Maryland, a move widely seen as an effort to prevent a competing hotel from being constructed on the site of the current headquarters blocks from Trump’s.
She now faces a difficult decision. If Murphy refuses to brief the House Democrats or doesn’t satisfactorily answer their questions, she will likely be subpoenaed to testify on national television. The Smith graduate and St. Louis native could, like many Trump officials before her, refuse to comply with the subpoena, but she lacks the executive privilege protections generally granted to White House officials like former White House counsel Don McGahn who is still fighting a Russia investigation-related congressional subpoena in court, or John Bolton who famously altogether avoided a subpoena to testify in Trump’s impeachment inquiry.
There are two ways that Congress can enforce a subpoena. They can ask the Justice Department to bring charges if there is non-compliance, which sounds like a less than fruitful path while William Barr is attorney general. The alternative is for it to ask a federal judge to step in and compel Murphy to testify. Trump’s Justice Department refused to help Congress, forcing them into court in McGahn’s case and dissuading them from even issuing a subpoena to Bolton, lest they lose the case and establish a dangerous precedent. Murphy can anticipate no such protection from a Biden-run Justice Department and could be charged with contempt next year if she refuses to comply, and Democrats are in a mood to pursue an investigation into this chaotic interregnum.
Yet, she no doubt is feeling tremendous pressure not to avoid this risk by issuing the ascertainment. It’s not just Trump’s fire and fury menacing her. Georgia Secretary of State Brad Raffensperger and his wife have received death threats for the simple offense of Raffensperger contradicting Trump about the existence of fraud in his state’s elections. There’s no reason to think that Murphy would be spared that kind of intimidation.
The Republican base is convinced that Biden’s win is illegitimate, despite the lack of evidence of any widespread fraud. A Reuters/Ipsos survey conducted between November 13 and November 17 found that only 29 percent of Republican voters recognize Biden’s victory. They found unanimity on this point when conducting interviews with Trump supporters:
In Reuters interviews with 50 Trump voters, all said they believed the election was rigged or in some way illegitimate. Of those, 20 said they would consider accepting Biden as their president, but only in light of proof that the election was conducted fairly. Most repeated debunked conspiracy theories espoused by Trump, Republican officials and conservative media claiming that millions of votes were dishonestly switched to Biden in key states by biased poll workers and hacked voting machines. Many voters interviewed by Reuters said they formed their opinions by watching emergent right-wing media outlets such as Newsmax and One American News Network that have amplified Trump’s fraud claims. Some have boycotted Fox News out of anger that the network called Biden the election winner and that some of its news anchors – in contrast to its opinion show stars – have been skeptical of Trump’s fraud allegations.
This puts the 47-year-old in the position of prioritizing her legal situation against her physical safety, future employment opportunities and standing in Republican politics.
Of course, she has two options that can skirt or mitigate the worst of these problems. She can comply with the subpoena and take the heat for refusal to issue the ascertainment. Democrats and the media would blister her for endangering our national security and worsening our COVID-19 pandemic response. Still, she’d become an Oliver North-style hero to the right and most likely avoid criminal liability.
Alternatively, she could ask the House Democrats to subpoena her and use it as an excuse to go ahead with the ascertainment. Basically, she could argue that she held out as long as she reasonably could, but she wasn’t willing to deny Biden’s win under oath or adopt Trump’s dubious legal arguments in a congressional hearing. It wouldn’t satisfy everyone, but it’s a middle ground. A reversal of her position might enhance her employment opportunities with corporations and DC lobbies, and trade associations.
If I were her, I’d adopt this last option because it has the advantage of being the right thing for the country. It also provides legal protection and, hopefully, some physical protection.
It’s a shame that the House Democrats must put her in this position, but they can’t just do nothing while Trump attempts a naked coup, nor can they be silent when Biden’s presidency is being sabotaged before it has even begun and the nation’s health and security are put at needless risk.


washingtonmonthly--2020-11-21--Trump Is Staging a Comically Incompetent Coup

It would almost be possible to laugh at Donald Trump if the stakes weren ’ t so serious .
And if he were anyone but Donald Trump .
Trump ’ s careening coup against democracy has been by turns dystopian drama and comic farce , its brazen disregard for decency matched only by its vaudevillian ineptitude .
At each turn his attempts to overturn the election have become more desperate , error-prone and darkly hilarious .
But with that desperation–and with the quiet acquiescence of most of the Republican Party along with the loud cheering of his base–Trump and his @ @ @ @ @ @ @ no depths to which they will not sink in order to retain power .
Trump ’ s initial strategy to overturn the election hinged on a series of small bore legal challenges predicated on minor irregularities , clerical errors and largely irrelevant GOP pollwatcher complaints .
Almost all of those challenges were laughed out of court .
Trump ’ s lawyers started bailing out , not wanting to be associated with the clown show or potentially even face disbarment for filing frivolous claims .
But then things took a darker turn .
It @ @ @ @ @ @ @ primary legal and strategic counsel has dwindled to three attorneys with checkered backgrounds : Jenna Ellis , Rudy Giuliani and Sidney Powell .
This is not a high-powered legal team , but it is a shamelessly aggressive one .
Trump likes shameless .
He has always been most comfortable with the Roy Cohns of the world , and Ellis , Giuliani and Powell fit the bill for recklessness if not for talent .
The trio has settled on a singular strategy : use a wild , false conspiracy theory about vote software company @ @ @ @ @ @ @ as an excuse to throw out the entirety of elections in swing states , then ask those states ’ gerrymandered Republican legislatures to give Trump their electors .
The scheme is almost certainly doomed to fail .
The allegations are baseless–so baseless that not even Tucker Carlson would allow Sidney Powell onto his show because she could not produce any evidence of her claims .
If Trump did somehow persuade the legislatures and the Supreme Court to do his bidding it would cause unprecedented civil conflict , and likely end democracy as we @ @ @ @ @ @ @ Not that any of them would care .
Living through it as we all are , it is difficult to keep in perspective how astonishingly bizarre it is .
From Rudy Giuliani ’ s hair dye dripping down his cheek and wiping snot all over his face with a handkerchief , to Sidney Powell ’ s repeatedly weird promises to “ release the kraken ” ( now a QAnon meme near you ) and invocations of the long deceased Venezuelan president Hugo Chavez as somehow in on the conspiracy , to Jenna Ellis @ @ @ @ @ @ @ man she once called an “ idiot ” who “ really can not be trusted to be consistent or accurate in anything , ” it seems more like tragicomic soap opera material than living history .
The Dominion software conspiracy theory is complete bunk , of course .
Much as it would be better to have universal paper ballots , there are multiple layers of verification and security behind these systems , and even conservatives admit that the machines did not affect the outcomes .
The hand recount in Georgia showed that it @ @ @ @ @ @ @ to Biden–it was the voters .
And it even appears that Giuliani and Powell mixed up the counties and cities in Minnesota and Michigan when doing their math , which certainly won ’ t bode well either for their “ investigation ” or court cases .
But then Trump became even more brazen .
He has sequentially started inviting Republican members of the legislatures of key swing states like Michigan and Pennsylvania to meetings at the White House , trying to persuade them to illegally overturn the will of the voters in those @ @ @ @ @ @ @ ought to have , a Michigan delegation did attend the meeting–but came out of it reaffirming their intention to allow the will of the voters to stand .
But in any case , any legislators would did try to cooperate with these schemes would almost certainly face prosecution , as the state laws are clear that the legislatures must send electors in accordance with the actual voters .
Meanwhile , there ’ s the COVID situation–increasingly bleak across the country , but again darkly farcical within the White House .
Donald Trump Jr @ @ @ @ @ @ @ and Trump ’ s own legal team was unable to meet with Michigan lawmakers because they had been exposed to the virus .
Trump is going to run out of road soon because of the certification deadlines .
Georgia ’ s secretary of state certified their results today .
The rest of the swing states will be certifying this upcoming week .
Electors will be selected based on those certifications .
And the electors will vote on December 14th .
But that doesn ’ t mean Trump and his minions will stop trying @ @ @ @ @ @ @ pillars of American democracy , seeking to find whatever weaknesses he can .
And he ’ ll keep doing so in more pathetic , incompetent and cringe-inducing ways .
It would be funny if our lives , the country , and the climate didn ’ t depend on the outcome .

It would almost be possible to laugh at Donald Trump if the stakes weren’t so serious. And if he were anyone but Donald Trump.
Trump’s careening coup against democracy has been by turns dystopian drama and comic farce, its brazen disregard for decency matched only by its vaudevillian ineptitude. At each turn his attempts to overturn the election have become more desperate, error-prone and darkly hilarious. But with that desperation–and with the quiet acquiescence of most of the Republican Party along with the loud cheering of his base–Trump and his coterie have also shown there are literally no depths to which they will not sink in order to retain power.
Trump’s initial strategy to overturn the election hinged on a series of small bore legal challenges predicated on minor irregularities, clerical errors and largely irrelevant GOP pollwatcher complaints. Almost all of those challenges were laughed out of court. Trump’s lawyers started bailing out, not wanting to be associated with the clown show or potentially even face disbarment for filing frivolous claims.
But then things took a darker turn. It has become apparent that Trump’s primary legal and strategic counsel has dwindled to three attorneys with checkered backgrounds: Jenna Ellis, Rudy Giuliani and Sidney Powell. This is not a high-powered legal team, but it is a shamelessly aggressive one. Trump likes shameless. He has always been most comfortable with the Roy Cohns of the world, and Ellis, Giuliani and Powell fit the bill for recklessness if not for talent.
The trio has settled on a singular strategy: use a wild, false conspiracy theory about vote software company Dominion supposedly creating invalid votes for Biden as an excuse to throw out the entirety of elections in swing states, then ask those states’ gerrymandered Republican legislatures to give Trump their electors. The scheme is almost certainly doomed to fail. The allegations are baseless–so baseless that not even Tucker Carlson would allow Sidney Powell onto his show because she could not produce any evidence of her claims. If Trump did somehow persuade the legislatures and the Supreme Court to do his bidding it would cause unprecedented civil conflict, and likely end democracy as we know it in the United States. Not that any of them would care.
Living through it as we all are, it is difficult to keep in perspective how astonishingly bizarre it is. From Rudy Giuliani’s hair dye dripping down his cheek and wiping snot all over his face with a handkerchief, to Sidney Powell’s repeatedly weird promises to “release the kraken” (now a QAnon meme near you) and invocations of the long deceased Venezuelan president Hugo Chavez as somehow in on the conspiracy, to Jenna Ellis stridently vouching for the delusions of a man she once called an “idiot” who “really cannot be trusted to be consistent or accurate in anything,” it seems more like tragicomic soap opera material than living history.
The Dominion software conspiracy theory is complete bunk, of course. Much as it would be better to have universal paper ballots, there are multiple layers of verification and security behind these systems, and even conservatives admit that the machines did not affect the outcomes. The hand recount in Georgia showed that it wasn’t software delivering a win to Biden–it was the voters. And it even appears that Giuliani and Powell mixed up the counties and cities in Minnesota and Michigan when doing their math, which certainly won’t bode well either for their “investigation” or court cases.
But then Trump became even more brazen. He has sequentially started inviting Republican members of the legislatures of key swing states like Michigan and Pennsylvania to meetings at the White House, trying to persuade them to illegally overturn the will of the voters in those states. Rather than declining as they ought to have, a Michigan delegation did attend the meeting—but came out of it reaffirming their intention to allow the will of the voters to stand. But in any case, any legislators who did try to cooperate with these schemes would almost certainly face prosecution, as the state laws are clear that the legislatures must send electors in accordance with the actual voters.
Meanwhile, there’s the COVID situation—increasingly bleak across the country, but again darkly farcical within the White House. Donald Trump Jr. has now tested positive for COVID, and Trump’s own legal team was unable to meet with Michigan lawmakers because they themselves had been exposed to the virus.
Trump is going to run out of road soon because of the certification deadlines. Georgia’s secretary of state certified their results today. The rest of the swing states will be certifying this upcoming week. Electors will be selected based on those certifications. And the electors will vote on December 14th.
But that doesn’t mean Trump and his minions will stop trying to hack away at the struts and pillars of American democracy, seeking to find whatever weaknesses they can. And they will keep doing so in more pathetic, incompetent and cringe-inducing ways. It would be funny if our lives, the country, and the climate didn’t depend on the outcome.


washingtonmonthly--2020-11-21--In Election Litigation, An Ominous Sign

In Election Litigation, An Ominous Sign

On Friday , President Trump brought a delegation of Michigan legislators to the White House and apparently implored them to designate him as the recipient of the state ’ s 16 electoral votes—even though Joe Biden had carried the popular vote in the Great Lake state by 150,000 votes , or nearly 3 percent of the total .
The legislators , in a statement apparently prepared ahead of time , seemed to blunt those hopes by saying that “ we will follow the law and follow the normal process regarding Michigan ’ s electors , just as we have said @ @ @ @ @ @ @ , the White House is now considering a similar invitation to the Republican leaders of the Pennsylvania legislature ( the race was much closer in Pennsylvania , but the margin was nonetheless convincing ) .
The scheme , apparently , is for state election boards to refuse to certify the state ’ s election returns on the grounds of unspecified “ irregularities , ” or “ fraud , ” at which point legislators will step in and simply anoint Trump .
Though it sounds like a matter of straightforward , if repellent , @ @ @ @ @ @ @ resembles nothing so much as one of those rickety contraptions for which the cartoonist Rube Goldberg was known .
For one thing , in Michigan at least , the choosing of electors by popular vote is required by a state statute .
To repeal it would require a signature by the governor ( or a veto override ) .
Or would it ?
Lurking on the edges of this sinister opera buffa is the doctrine of “ independent state legislature , ” the idea that , because the Constitution requires selection of electors @ @ @ @ @ @ @ state ] legislature .
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shall direct , ” the lawmakers can do ( well ) anything they want , and neither the Democratic governor nor the state ’ s courts can step in to stop it .
As you will see below , the “ independent legislature ” doctrine is unlikely to make a serious appearance in the melodrama that is 2020—but it may play a variety of sinister parts in forthcoming voting-rights dramas , to the great injury of citizens ’ right to vote .
On Veterans Day , November @ @ @ @ @ @ @ reported that county election offices had received “ approximately 10,000 mail ballots ” between Nov. 3 and Nov. 6 .
That number is important because , as of this writing , Joe Biden ’ s margin in the Commonwealth was greater than 59,000 votes—meaning that the late-arriving ballots , even if they were all for Donald Trump , could not sway the result .
That means the only “ election challenge ” case to get near the U.S. Supreme Court is now , in practical terms , moot .
The Court , its @ @ @ @ @ @ @ free of the filthy mess the Trump campaign is making of the 2020 election .
It could also choose , however , to wade in by granting review Republican Party of Pennsylvania v. Boockvar .
The Court could still consider it , under a doctrine it calls “ capable of repetition , yet evading review.
” ( Think , for example , of Roe v. Wade ; a pregnancy lasts nine months , while a case lasts years .
Nonetheless , women will still get pregnant , and the issue needed deciding .
@ @ @ @ @ @ @ intervention in the Pennsylvania case , but it has not said it won ’ t hear the Republican claims .
If it decides to allow briefing and argument , that ’ s not a good sign .
The high court won ’ t magically proclaim Trump president .
But a grant of review would be taken as a sign to conservative litigators that the Court ’ s newly augmented conservative majority may revive an obscure doctrine called “ independent state legislatures.
” That doctrine could offer the Court a broad highway toward interference @ @ @ @ @ @ @ and voting rights generally .
Let ’ s quickly review how the Pennsylvania “ late ” ballot case arose .
In the fall of 2019 , the Republican-led Pennsylvania legislature made voting easier—in particular , extending for the first time the right of any voter to vote by mail ballot .
The legislature , however , refused ( despite a request from Democratic Governor Tom Wolf ) to extend the deadline for ballot receipt in case of mail delays .
In 2020 , however , the pandemic , and the apparently intentional sabotage @ @ @ @ @ @ @ hit at the same time .
The state Democratic Party sued the Secretary of State ( a Democrat , Kathy Boockvar ) , asking a state court to require counting all ballots received up to a week after Election Day .
( That deadline wasn ’ t arbitrary : Pennsylvania , like many states , already does count ballots from active-duty military and from Americans living abroad if they arrive within seven days . )
When the case reached the state supreme court , the Secretary of State asked that court to grant @ @ @ @ @ @ @ the election and received within three days , which it did .
Now here ’ s what ’ s important : the state supreme court based its decision , in large part , on Pennsylvania ’ s own bill of rights , which dates in part to 1776—before there was even the notion of a “ United States Constitution.
” The provision they interpreted , Art .
I § 5 , reads “ Elections shall be free and equal ; and no power , civil or military , shall at any time interfere @ @ @ @ @ @ @ right of suffrage.
” There is no equivalent guarantee in the U.S. Constitution .
Neither Boockvar nor the state court “ rewrote ” the statute , as conservative legal authorities keep carping .
A decade ago , a federal court held that Pennsylvania law delegated to Boockvar ’ s office the authority to regulate election deadlines , even without legislative approval .
And the state court ’ s order did not change the deadline scheme , but—in a concept familiar to every first-year law student–it held that the deadline would be unconstitutional “ @ @ @ @ @ @ @ .
Republican politicians and the state Republican party rushed to the U.S. Supreme Court , asking it to order rejection of any ballots received after the original deadline of 8 p.m. on Election Day .
One of their arguments was that the state court had violated the U.S. Constitution by applying the Pennsylvania Constitution at all .
This , they said , violated the “ elections clause , ” Article I § 4 , which provides that “ [ t ] he times , places and manner of holding elections for senators and @ @ @ @ @ @ @ state by the Legislature thereof ” unless Congress passes a law governing those things .
Here ’ s the core of the argument : the provision , they argued , says , “ legislatures.
” It does not say “ legislatures and state courts.
” It does not say “ legislatures , state courts , and state constitutions.
” Many Americans read the U.S. Constitution the way some Fundamentalists read the Bible : the literal meaning , in this account , is all that matters ; context and common sense , not so @ @ @ @ @ @ @ U.S. Constitution , which supersedes any state law or constitution , gives the state legislatures a federal function “ independent ” of its function in the state .
So , Republicans argued , the people of the state could not guarantee themselves a right to vote in federal elections , whatever they might put in their state constitution .
The legislature can do any flipping thing it wants , and nobody else in Pennsylvania can say so much as “ kiss my foot.
” This is the “ independent state legislature doctrine.
” @ @ @ @ @ @ @ ( though some smart people buy it ) it seems a bit odd to me .
State constitutions in our system are important documents .
Adopted by the people , they establish state legislatures and set forth their procedures and powers .
They also limit the legislatures in one important way—by setting out state “ bills of rights ” that indicate what the legislators shall not do to or in the name of the people of the state .
Very often , those bills of rights protect more rights than does the federal @ @ @ @ @ @ @ ’ s right-to-vote not apply to its most important elections ?
The “ independent legislature ” doctrine teaches that the federal “ elections clause ” functions as a kind of UFO : it abducts the legislature , like an abductee in Close Encounters of the Third Kind , transforms it into a federal body , then sends it back with powers and duties to which the people have explicitly not consented .
The “ independent legislature ” argument has been around for years and has some academic and jurisprudential support .
But it @ @ @ @ @ @ @ century .
Then , at the dawn of the new millennium , it reared its head in Bush v. Gore .
In a separate opinion , then-Chief Justice William H. Rehnquist , joined by Justices Antonin Scalia and Clarence Thomas , offered it as one reason for rejecting the Florida Supreme Court ’ s order for an ongoing recount .
“ [ T ] here are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State ’ s government , ” @ @ @ @ @ @ @ weight to the pronouncement of a state court .
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would be to abdicate our responsibility to enforce the explicit requirements of Article II.
” The argument surfaced again in a 2015 case called Arizona State Legislature v. Arizona Independent Redistricting Commission .
Arizona voters , sickened by the grotesque partisan gerrymanders of their legislators , took the issue away from the legislature and created a non-partisan commission to draw neutral congressional and legislative districts .
The Republican-led legislature filed suit , arguing that the “ elections clause ” gave it , @ @ @ @ @ @ @ exclusive authority overdrawing districts .
The Supreme Court rejected that claim .
In an opinion by Justice Ruth Bader Ginsburg , the majority reasoned that “ it would be perverse to interpret the term ‘ Legislature ’ in the Elections Clause so as to exclude lawmaking by the people .
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” Thus , the majority reasoned , “ legislature ” includes “ the State ’ s prescriptions for lawmaking , which may include the referendum and the Governor ’ s veto.
” That was , however , a 5-4 decision @ @ @ @ @ @ @ ( Ruth Bader Ginsburg and Anthony Kennedy ) are now gone .
None other than Chief Justice John Roberts wrote the principal dissent .
His dissent suggested a limited version of the doctrine .
The people , he said , might be able to “ impos [ e ] some constraints on the legislature ” but not “ depos [ e ] it entirely.
” This brings us back to the 2020 election .
The Court ’ s refusal to intervene in the Pennsylvania case was a 4-4 tie .
Significantly , its @ @ @ @ @ @ @ Justices—Clarence Thomas , Samuel Alito , Neil Gorsuch , and Brett Kavanaugh—would have been glad to shut down the counting of late ballots before they were even received .
A week later , on October 26 , the Court confronted a separate ballot-deadline case , this one in Wisconsin , called Democratic National Committee v. Bostelmann .
In that case , a federal district court had ordered a similar adjustment—allowing ballots mailed by election day to be counted if they arrived a week later .
The U.S .
Seventh Circuit reversed the decision @ @ @ @ @ @ @ Democratic plaintiffs then asked the Supreme Court to allow counting of the late-arriving ballots .
The Court , in a one-sentence order , refused to disturb the deadline .
In a separate opinion , Roberts explained the different results by pointing out the difference between state and federal courts : “ While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions .
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, this case involves federal intrusion on state lawmaking processes.
” That would seem like an affirmation of the power of state courts .
@ @ @ @ @ @ @ .
Perhaps ominously , Justices Gorsuch and Kavanaugh dissented .
Kavanaugh appended an 18-page opinion , most of which centered on the idea that those feckless Wisconsin voters should have voted earlier .
But in a prominent footnote , he cited Bush v. Gore and added , “ the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.
” That was the end of the Wisconsin case and the temporary end of the Pennsylvania case .
But the day after the decision in Bostelmann @ @ @ @ @ @ @ .
Justice Amy Coney Barrett was sworn in .
The conservative lineup is now 6-3 , and Roberts is not the “ swing ” justice .
And as a lower court judge , Barrett showed some affinity for extreme conservative doctrines .
What does this mean for the Pennsylvania election ?
In terms of who wins the state ’ s 2020 electors , nothing at all .
( Offered another chance to shut down counting of the “ late ” ballots , Alito refused on November 6 . )
What does it mean @ @ @ @ @ @ @ the Pennsylvania case ?
The Court could still grant review and inscribe the “ independent legislature doctrine ” into the law .
Or it could deny review but wait for the challenges Kavanaugh ’ s opinion will produce between now and the 2022 elections .
Applied to its logical extension , the “ independent legislature ” idea could do serious damage to voting rights in all 50 states .
Joshua A. Douglas , a voting-rights specialist at the University of Kentucky Rosenburg College of Law , noted in a 2014 article that 49 @ @ @ @ @ @ @ of the right to vote , and 26 require elections to be “ free and equal ” ( or something similar ) .
An opinion adopting the strong “ independent legislature ” doctrine , he said in an email , “ would cabin the state constitutional right to vote , just at the time where it ’ s needed even more given narrow federal jurisprudence .
That could lead to more restrictive voting laws , a lack of state protection against gerrymandering , etc.
” There ’ s no question that the “ @ @ @ @ @ @ @ grounding .
In a detailed scholarly article published earlier this year , Michael Morley of the Florida State University School of Law traces the concept to the early years of the republic .
( In an email to me , he was at pains to point out that “ The outcome of this presidential election is definitely not going to hinge at all on this doctrine.
” ) In his article , he noted that federal courts have tended to ignore the idea over the past century .
But his email pointed out @ @ @ @ @ @ @ , granting legislatures the power to approve constitutional amendments , “ played a key role in the ratification of the Nineteenth Amendment , which established women ’ s suffrage .
Article V of the U.S. Constitution grants each state ’ s legislature–rather than the state as an entity–authority to ratify federal constitutional amendments .
Several state constitutions contained provisions that barred state legislatures from extending the vote to women .
Some legislatures nevertheless ratified the Nineteenth Amendment , despite such restrictions in their respective state constitutions .
The U.S. Supreme Court [ in @ @ @ @ @ @ @ , held that the Nineteenth Amendment ’ s ratification was valid because state constitutions could not limit the authority that Article V grants specifically to a state legislature to ratify amendments to the U.S. Constitution.
” Scholarly disputes are one thing .
But when I look at the constitutional picture emerging from the Roberts Court rather than from law reviews , the picture is not encouraging .
At the most basic level , this new majority is ( to put it mildly ) not enthusiastic about voting rights .
Beyond that , there @ @ @ @ @ @ @ the “ independent legislature ” and another article of conservative faith , the “ unitary executive.
” Congress can not place any limits on the president ’ s power over the executive branch , “ unitary ” hard-liners such as Attorney General William Barr insist .
He can fire any federal official from an inspector general to Dr. Anthony Fauci .
He can alter federal weather forecasts with a Sharpie , suppress federal science on climate change , and order or block federal criminal investigations of his enemies .
No one—not Congress , @ @ @ @ @ @ @ when used for the most blatant of partisan ( or even crazy ) purposes .
Here ’ s the similarity : those who espouse a hard-line version of the “ independent legislature ” doctrine believe that the state legislature–a partisan , elected body–has complete control over how their people ’ s right to vote in federal elections .
In both cases , the idea is that the Constitution vests unreviewable power to affect constitutional rights in a powerful actor or institution .
Other parts of government—even the people themselves—can not protect themselves from @ @ @ @ @ @ @ can be absolute and unreviewable–are seeping into the law governing police misconduct , immigration and alien detention , church and state , and even the First Amendment .
The overall outline is clear ; its basis is not the consent of the governed but raw power of those who govern .

UPDATE. Friday, November 20
On Friday, President Trump brought a delegation of Michigan legislators to the White House and apparently implored them to designate him as the recipient of the state’s 16 electoral votes—even though Joe Biden had carried the popular vote in the Great Lake state by 150,000 votes, or nearly 3 percent of the total. The legislators, in a statement apparently prepared ahead of time, seemed to blunt those hopes by saying that “we will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election.” According to CNN, the White House is now considering a similar invitation to the Republican leaders of the Pennsylvania legislature (the race was much closer in Pennsylvania, but the margin was nonetheless convincing).
The scheme, apparently, is for state election boards to refuse to certify the state’s election returns on the grounds of unspecified “irregularities,” or “fraud,” at which point legislators will step in and simply anoint Trump. Though it sounds like a matter of straightforward, if repellent, political piracy, the scheme in fact resembles nothing so much as one of those rickety contraptions for which the cartoonist Rube Goldberg was known. For one thing, in Michigan at least, the choosing of electors by popular vote is required by a state statute. To repeal it would require a signature by the governor (or a veto override).
Or would it? Lurking on the edges of this sinister opera buffa is the doctrine of “independent state legislature,” the idea that, because the Constitution requires selection of electors “in such manner as the [state] legislature . . . shall direct,” the lawmakers can do (well) anything they want, and neither the Democratic governor nor the state’s courts can step in to stop it. As you will see below, the “independent legislature” doctrine is unlikely to make a serious appearance in the melodrama that is 2020—but it may play a variety of sinister parts in forthcoming voting-rights dramas, to the great injury of citizens’ right to vote.
On Veterans Day, November 11, the Pennsylvania Department of State reported that county election offices had received “approximately 10,000 mail ballots” between Nov. 3 and Nov. 6.
That number is important because, as of this writing, Joe Biden’s margin in the Commonwealth was greater than 59,000 votes—meaning that the late-arriving ballots, even if they were all for Donald Trump, could not sway the result.
That means the only “election challenge” case to get near the U.S. Supreme Court is now, in practical terms, moot. The Court, its reputation thus far unsullied, can step free of the filthy mess the Trump campaign is making of the 2020 election.
It could also choose, however, to wade in by granting review Republican Party of Pennsylvania v. Boockvar. The Court could still consider it, under a doctrine it calls “capable of repetition, yet evading review.” (Think, for example, of Roe v. Wade; a pregnancy lasts nine months, while a case lasts years. Nonetheless, women will still get pregnant, and the issue needed deciding.)
The Court has twice refused emergency intervention in the Pennsylvania case, but it has not said it won’t hear the Republican claims. If it decides to allow briefing and argument, that’s not a good sign. The high court won’t magically proclaim Trump president. But a grant of review would be taken as a sign to conservative litigators that the Court’s newly augmented conservative majority may revive an obscure doctrine called “independent state legislatures.” That doctrine could offer the Court a broad highway toward interference with election procedures, congressional redistricting, and voting rights generally.
Let’s quickly review how the Pennsylvania “late” ballot case arose. In the fall of 2019, the Republican-led Pennsylvania legislature made voting easier—in particular, extending for the first time the right of any voter to vote by mail ballot. The legislature, however, refused (despite a request from Democratic Governor Tom Wolf) to extend the deadline for ballot receipt in case of mail delays.
In 2020, however, the pandemic, and the apparently intentional sabotage of the United States Postal System, hit at the same time. The state Democratic Party sued the Secretary of State (a Democrat, Kathy Boockvar), asking a state court to require counting all ballots received up to a week after Election Day. (That deadline wasn’t arbitrary: Pennsylvania, like many states, already does count ballots from active-duty military and from Americans living abroad if they arrive within seven days.)
When the case reached the state supreme court, the Secretary of State asked that court to grant an extension limited to ballots postmarked before the election and received within three days, which it did.
Now here’s what’s important: the state supreme court based its decision, in large part, on Pennsylvania’s own bill of rights, which dates in part to 1776—before there was even the notion of a “United States Constitution.” The provision they interpreted, Art. I § 5, reads “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” There is no equivalent guarantee in the U.S. Constitution.
Neither Boockvar nor the state court “rewrote” the statute, as conservative legal authorities keep carping. A decade ago, a federal court held that Pennsylvania law delegated to Boockvar’s office the authority to regulate election deadlines, even without legislative approval. And the state court’s order did not change the deadline scheme, but—in a concept familiar to every first-year law student–it held that the deadline would be unconstitutional “as applied” under the present circumstances.
Republican politicians and the state Republican party rushed to the U.S. Supreme Court, asking it to order rejection of any ballots received after the original deadline of 8 p.m. on Election Day.
One of their arguments was that the state court had violated the U.S. Constitution by applying the Pennsylvania Constitution at all. This, they said, violated the “elections clause,” Article I § 4, which provides that “[t]he times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the Legislature thereof” unless Congress passes a law governing those things.
Here’s the core of the argument: the provision, they argued, says, “legislatures.” It does not say “legislatures and state courts.” It does not say “legislatures, state courts, and state constitutions.” Many Americans read the U.S. Constitution the way some Fundamentalists read the Bible: the literal meaning, in this account, is all that matters; context and common sense, not so much. Read that way, the U.S. Constitution, which supersedes any state law or constitution, gives the state legislatures a federal function “independent” of its function in the state. So, Republicans argued, the people of the state could not guarantee themselves a right to vote in federal elections, whatever they might put in their state constitution. The legislature can do any flipping thing it wants, and nobody else in Pennsylvania can say so much as “kiss my foot.”
This is the “independent state legislature doctrine.” I will confess from the jump that (though some smart people buy it) it seems a bit odd to me. State constitutions in our system are important documents. Adopted by the people, they establish state legislatures and set forth their procedures and powers. They also limit the legislatures in one important way—by setting out state “bills of rights” that indicate what the legislators shall not do to or in the name of the people of the state. Very often, those bills of rights protect more rights than does the federal Constitution.
So, can the state’s right-to-vote not apply to its most important elections? The “independent legislature” doctrine teaches that the federal “elections clause” functions as a kind of UFO: it abducts the legislature, like an abductee in Close Encounters of the Third Kind, transforms it into a federal body, then sends it back with powers and duties to which the people have explicitly not consented.
The “independent legislature” argument has been around for years and has some academic and jurisprudential support. But it has had little impact over the past century. Then, at the dawn of the new millennium, it reared its head in Bush v. Gore. In a separate opinion, then-Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, offered it as one reason for rejecting the Florida Supreme Court’s order for an ongoing recount. “[T]here are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government,” Rehnquist wrote. “To attach definitive weight to the pronouncement of a state court . . . would be to abdicate our responsibility to enforce the explicit requirements of Article II.”
The argument surfaced again in a 2015 case called Arizona State Legislature v. Arizona Independent Redistricting Commission. Arizona voters, sickened by the grotesque partisan gerrymanders of their legislators, took the issue away from the legislature and created a non-partisan commission to draw neutral congressional and legislative districts. The Republican-led legislature filed suit, arguing that the “elections clause” gave it, not the commission or the people, exclusive authority overdrawing districts. The Supreme Court rejected that claim. In an opinion by Justice Ruth Bader Ginsburg, the majority reasoned that “it would be perverse to interpret the term ‘Legislature’ in the Elections Clause so as to exclude lawmaking by the people . . . .” Thus, the majority reasoned, “legislature” includes “the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”
That was, however, a 5-4 decision, and two of the five-member majority (Ruth Bader Ginsburg and Anthony Kennedy) are now gone. None other than Chief Justice John Roberts wrote the principal dissent. His dissent suggested a limited version of the doctrine. The people, he said, might be able to “impos[e] some constraints on the legislature” but not “depos[e] it entirely.”
This brings us back to the 2020 election. The Court’s refusal to intervene in the Pennsylvania case was a 4-4 tie. Significantly, its order noted that the four most conservative Justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—would have been glad to shut down the counting of late ballots before they were even received.
A week later, on October 26, the Court confronted a separate ballot-deadline case, this one in Wisconsin, called Democratic National Committee v. Bostelmann. In that case, a federal district court had ordered a similar adjustment—allowing ballots mailed by election day to be counted if they arrived a week later. The U.S. Seventh Circuit reversed the decision and reinstated the statutory deadline. The Democratic plaintiffs then asked the Supreme Court to allow counting of the late-arriving ballots.
The Court, in a one-sentence order, refused to disturb the deadline. In a separate opinion, Roberts explained the different results by pointing out the difference between state and federal courts: “While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions . . . , this case involves federal intrusion on state lawmaking processes.” That would seem like an affirmation of the power of state courts.
But Roberts was writing only for himself. Perhaps ominously, Justices Gorsuch and Kavanaugh dissented. Kavanaugh appended an 18-page opinion, most of which centered on the idea that those feckless Wisconsin voters should have voted earlier. But in a prominent footnote, he cited Bush v. Gore and added, “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”
That was the end of the Wisconsin case and the temporary end of the Pennsylvania case. But the day after the decision in Bostelmann, the legal landscape changed for good. Justice Amy Coney Barrett was sworn in. The conservative lineup is now 6-3, and Roberts is not the “swing” justice. And as a lower court judge, Barrett showed some affinity for extreme conservative doctrines.
What does this mean for the Pennsylvania election? In terms of who wins the state’s 2020 electors, nothing at all. (Offered another chance to shut down counting of the “late” ballots, Alito refused on November 6.) What does it mean, on the other hand, for the Pennsylvania case? The Court could still grant review and inscribe the “independent legislature doctrine” into the law. Or it could deny review but wait for the challenges Kavanaugh’s opinion will produce between now and the 2022 elections.
Applied to its logical extension, the “independent legislature” idea could do serious damage to voting rights in all 50 states. Joshua A. Douglas, a voting-rights specialist at the University of Kentucky Rosenburg College of Law, noted in a 2014 article that 49 of the 50 states have broad guarantees of the right to vote, and 26 require elections to be “free and equal” (or something similar). An opinion adopting the strong “independent legislature” doctrine, he said in an email, “would cabin the state constitutional right to vote, just at the time where it’s needed even more given narrow federal jurisprudence. That could lead to more restrictive voting laws, a lack of state protection against gerrymandering, etc.”
There’s no question that the “independent legislature” doctrine has some historical grounding. In a detailed scholarly article published earlier this year, Michael Morley of the Florida State University School of Law traces the concept to the early years of the republic. (In an email to me, he was at pains to point out that “The outcome of this presidential election is definitely not going to hinge at all on this doctrine.”)
In his article, he noted that federal courts have tended to ignore the idea over the past century. But his email pointed out that a different provision of the Constitution, granting legislatures the power to approve constitutional amendments, “played a key role in the ratification of the Nineteenth Amendment, which established women’s suffrage. Article V of the U.S. Constitution grants each state’s legislature–rather than the state as an entity–authority to ratify federal constitutional amendments. Several state constitutions contained provisions that barred state legislatures from extending the vote to women. Some legislatures nevertheless ratified the Nineteenth Amendment, despite such restrictions in their respective state constitutions. The U.S. Supreme Court [in a case called Leser v. Garnett], held that the Nineteenth Amendment’s ratification was valid because state constitutions could not limit the authority that Article V grants specifically to a state legislature to ratify amendments to the U.S. Constitution.”
Scholarly disputes are one thing. But when I look at the constitutional picture emerging from the Roberts Court rather than from law reviews, the picture is not encouraging. At the most basic level, this new majority is (to put it mildly) not enthusiastic about voting rights.
Beyond that, there is a strange similarity in logic between the “independent legislature” and another article of conservative faith, the “unitary executive.” Congress cannot place any limits on the president’s power over the executive branch, “unitary” hard-liners such as Attorney General William Barr insist. He can fire any federal official from an inspector general to Dr. Anthony Fauci. He can alter federal weather forecasts with a Sharpie, suppress federal science on climate change, and order or block federal criminal investigations of his enemies. No one—not Congress, not courts–can limit his power, even when used for the most blatant of partisan (or even crazy) purposes.
Here’s the similarity: those who espouse a hard-line version of the “independent legislature” doctrine believe that the state legislature–a partisan, elected body–has complete control over how their people’s right to vote in federal elections. In both cases, the idea is that the Constitution vests unreviewable power to affect constitutional rights in a powerful actor or institution. Other parts of government—even the people themselves—can not protect themselves from its arbitrary acts.
Similar notions—that power can be absolute and unreviewable–are seeping into the law governing police misconduct, immigration and alien detention, church and state, and even the First Amendment. The overall outline is clear; its basis is not the consent of the governed but raw power of those who govern.


washingtonmonthly--2020-11-22--Can Republicans Get Trump-Style Turnout Without Trump on the Ballot?

Say what you will about Donald Trump , he ’ s very good at turning out Republican voters .
But will they turn out when he ’ s not on the ballot ?
That ’ s probably the most important question in American politics right now .
Three simultaneous trends have combined to create a political dynamic that is both dysfunctional and socially explosive–and Donald Trump , in own way , lies at the heart of all three .
The first is that the slow demographic death spiral of the GOP is still continuing apace .
Donald Trump embodies the @ @ @ @ @ @ @ , mostly white , mostly male voters yearning for the imagined cultural dominance of decades past and increasingly divorced from the reality of America today .
Yes , the Emerging Democratic Majority has been long promised without overwhelming success–so much so that it is now often widely mocked as a fallacy .
But it is still very real .
The oldest Millennials are now turning 40 , and they haven ’ t gotten any more conservative with age .
Zoomers , once hoped by conservatives to be a new vanguard for them , @ @ @ @ @ @ @ despite a very loud and obnoxious fascist minority of young white men . )
Generation X has turned into a surprisingly conservative bastion for Trumpism , but Generation X is also smaller than the Baby Boom or the Millennials .
The country gets less white every year .
Women are becoming more hostile to conservatism .
The greatest political divides in America outside of generation , race and gender are education and geographic polarization .
There again , the trends are very much against conservatives .
Americans are becoming more educated than ever @ @ @ @ @ @ @ and small towns into cities and suburbs .
The greatest bulwark against white racism is a college degree , and as younger whites become better educated the overall percentage of the white population becomes more immune to the appeal of Trumpist demagoguery .
And , of course , there is the fact that the suburbs are trending rapidly blue .
And yes , Republicans did make some gains with non-white voters this year–including in cities–by using a combination of culture war tactics .
But while these shifts were enough to affect a few @ @ @ @ @ @ @ effect of this aspect of the realignment will not be nearly enough to stand as a bulwark against the rest of the demographic tides .
The second is much more concerning for Democrats , but an outgrowth of the first .
If America ’ s electoral system were fair and representative , Democrats would be enjoying a nearly unprecedented string of dominance .
Republicans have only won the popular vote for president once in the last eight tries–and that once was with an incumbent himself elected by minority vote the first time , @ @ @ @ @ @ @ popularity during a war after a terrorist attack .
That is a historic string of defeats rescued only by the quirks of the anti-majoritarian electoral college system .
Republicans current represent 15 million fewer Americans in the Senate , yet perversely hold the majority due to an imbalance of representation favoring rural white conservatives in states like Wyoming and the Dakotas .
Democrats consistently win the majority of votes in the House , but end up in the minority or a slim majority due to geographic sorting but especially aggressive gerrymandering in GOP-controlled @ @ @ @ @ @ @ a number of state legislatures where they get badly beaten overall in the popular vote due to the same dynamic–which in turn allows them to continue to draw unfair lines after every census year .
Donald Trump ’ s strategy of polarizing the electorate along the ugliest cultural battle lines has exacerbated this effect .
Republicans are the beneficiaries of an apartheid electoral system .
Trumpism , meanwhile , has strengthened the GOP ’ s iron grip on rural white and white-passing communities while ceding control of the cities and suburbs .
It @ @ @ @ @ @ @ by 2040 , two-thirds of Americans will be represented by just 30 % of the Senate–a body that currently requires 60 % to pass any non-budgetary legislation .
That in turn has made a rickety electoral system explosive , and increased the necessity for Democrats to blow up the apartheid rules as soon as they possibly can as a matter of both justice and political survival .
The third is Donald Trump himself .
Democratic strategists and non-partisan professional pollsters alike underestimated Trump not once , but twice .
Both times Trump was @ @ @ @ @ @ @ by considerable margins , especially in swing states .
The first time in 2016 was easily attributed to the last-minute intervention by James Comey .
The second time the polling errors were much greater–and on both sides .
Democrats did an extraordinary job in 2020 of turning out their voters .
An earth-shattering record 80+ million voters will have pulled the lever for Biden when all the votes were counted .
It should have been a monumental defeat for both Trump and the GOP , but for the fact that an unexpected 75+ @ @ @ @ @ @ @ incumbent president .
Democratic gains were partly to be expected from increased mail-in balloting during the pandemic , and the fact that Trump had so suppressed his own mail-in vote should in theory have harmed his turnout .
But no .
Tens of millions of mostly older Trump voters came out to vote in person during a raging pandemic to support their leader , well beyond expectations .
It is frankly astonishing .
And more than a little disheartening , given the depth of Trump ’ s abyssal moral deficits , turpitudinous character @ @ @ @ @ @ @ .
One might be inclined to believe that this juiced GOP turnout and overperformance of the polling will be a fixture of our system going forward .
Yet one major data point runs against it : the 2018 election .
Trump was very much engaged in the 2018 contest , endorsing and promoting Republican incumbents and challengers .
The same GOP voters who elected him in 2016 and tried to re-elect him in 2020 were still here .
And yet Democrats rode to a wave of victories that won the House .
They @ @ @ @ @ @ @ both prior to and after the 2018 election .
The only discernable difference was that Trump himself was not on the ballot .
Georgia ’ s Senate runoff elections in January will present another test of this hypothesis .
By January it will be clear that Trump has no path to stopping Biden ’ s inauguration , whether he ultimately concedes or not .
It ’ s possible that Trump ’ s supporters in the nearly evenly divided Peach State will be furiously mobilized for revenge .
But they could just as easily @ @ @ @ @ @ @ internal civil war that delivers the slimmest of Senate majorities to the Democrats and the gavel into the hands of Vice-President Kamala Harris .
It ’ s also theoretically possible that Trump could run again in 2024 .
But he might just be attempting to do so from jail or bankruptcy court as a 78-year-old shell of himself .
It ’ s possible that another conservative like Tom Cotton , Tucker Carlson or even Donald Trump , Jr. could try to re-ignite Trump ’ s magic .
But many downballot Republicans tried to @ @ @ @ @ @ @ to the blue Democratic wave .
And it ’ s not at all clear that any heir apparent ( including his literal heir ) could mimic Trump ’ s unique combination of celebrity , faux bravado and utter sociopathic shamelessness that appeals to so many deeply insecure men and authoritarian personalities .
Time will tell .
If Trumpism can continue to pull strong numbers even without Trump himself on the ballot , the country ( and the world ) will be in for a very difficult next decade or two .
But if @ @ @ @ @ @ @ will compound the interest on a bad demographic deficit for the GOP that will overwhelm even its artificial geographic advantages .
And if Democrats manage to change even a few of the rules , from the electoral college to adding states to reversing gerrymandering , the disaster for the GOP may be irreversible .

Say what you will about Donald Trump, he’s very good at turning out Republican voters. But will they turn out when he’s not on the ballot?
That’s probably the most important question in American politics right now. Three simultaneous trends have combined to create a political dynamic that is both dysfunctional and socially explosive–and Donald Trump, in own way, lies at the heart of all three.
The first is that the slow demographic death spiral of the GOP is still continuing apace. Donald Trump embodies the Republican Party’s doom: older, mostly white, mostly male voters yearning for the imagined cultural dominance of decades past and increasingly divorced from the reality of America today.
Yes, the Emerging Democratic Majority has been long promised without overwhelming success–so much so that it is now often widely mocked as a fallacy. But it is still very real. The oldest Millennials are now turning 40, and they haven’t gotten any more conservative with age. Zoomers, once hoped by conservatives to be a new vanguard for them, are even more progressive than Millennials (despite a very loud and obnoxious fascist minority of young white men.) Generation X has turned into a surprisingly conservative bastion for Trumpism, but Generation X is also smaller than the Baby Boom or the Millennials. The country gets less white every year. Women are becoming more hostile to conservatism.
The greatest political divides in America outside of generation, race and gender are education and geographic polarization. There again, the trends are very much against conservatives. Americans are becoming more educated than ever, and moving away from rural areas and small towns into cities and suburbs. The greatest bulwark against white racism is a college degree, and as younger whites become better educated the overall percentage of the white population becomes more immune to the appeal of Trumpist demagoguery. And, of course, there is the fact that the suburbs are trending rapidly blue.
And yes, Republicans did make some gains with non-white voters this year–including in cities–by using a combination of culture war tactics. But while these shifts were enough to affect a few close races and states, the net effect of this aspect of the realignment will not be nearly enough to stand as a bulwark against the rest of the demographic tides.
The second is much more concerning for Democrats, but an outgrowth of the first. If America’s electoral system were fair and representative, Democrats would be enjoying a nearly unprecedented string of dominance. Republicans have only won the popular vote for president once in the last eight tries–and that once was with an incumbent himself elected by minority vote the first time, barely re-elected despite riding a wave of popularity during a war after a terrorist attack. That is a historic string of defeats rescued only by the quirks of the anti-majoritarian electoral college system.
Republicans current represent 15 million fewer Americans in the Senate, yet perversely hold the majority due to an imbalance of representation favoring rural white conservatives in states like Wyoming and the Dakotas. Democrats consistently win the majority of votes in the House, but end up in the minority or a slim majority due to geographic sorting but especially aggressive gerrymandering in GOP-controlled states. And Republicans continue to control a number of state legislatures where they get badly beaten overall in the popular vote due to the same dynamic–which in turn allows them to continue to draw unfair lines after every census year.
Donald Trump’s strategy of polarizing the electorate along the ugliest cultural battle lines has exacerbated this effect. Republicans are the beneficiaries of an apartheid electoral system. Trumpism, meanwhile, has strengthened the GOP’s iron grip on rural white and white-passing communities while ceding control of the cities and suburbs. It’s an unsustainable powder keg: by 2040, two-thirds of Americans will be represented by just 30% of the Senate–a body that currently requires 60% to pass any non-budgetary legislation. That in turn has made a rickety electoral system explosive, and increased the necessity for Democrats to blow up the apartheid rules as soon as they possibly can as a matter of both justice and political survival.
The third is Donald Trump himself. Democratic strategists and non-partisan professional pollsters alike underestimated Trump not once, but twice. Both times Trump was on the ballot he outperformed his polling by considerable margins, especially in swing states. The first time in 2016 was easily attributed to the last-minute intervention by James Comey. The second time the polling errors were much greater–and on both sides.
Democrats did an extraordinary job in 2020 of turning out their voters. An earth-shattering record 80+ million voters will have pulled the lever for Biden when all the votes were counted. It should have been a monumental defeat for both Trump and the GOP, but for the fact that an unexpected 75+ million voters also came out for the incumbent president. Democratic gains were partly to be expected from increased mail-in balloting during the pandemic, and the fact that Trump had so suppressed his own mail-in vote should in theory have harmed his turnout.
But no. Tens of millions of mostly older Trump voters came out to vote in person during a raging pandemic to support their leader, well beyond expectations. It is frankly astonishing. And more than a little disheartening, given the depth of Trump’s abyssal moral deficits, turpitudinous character, totalitarian overtures and catastrophically inept leadership.
One might be inclined to believe that this juiced GOP turnout and overperformance of the polling will be a fixture of our system going forward. Yet one major data point runs against it: the 2018 election. Trump was very much engaged in the 2018 contest, endorsing and promoting Republican incumbents and challengers. The same GOP voters who elected him in 2016 and tried to re-elect him in 2020 were still here. And yet Democrats rode to a wave of victories that won the House. They also won a string of special elections both prior to and after the 2018 election.
The only discernable difference was that Trump himself was not on the ballot.
Georgia’s Senate runoff elections in January will present another test of this hypothesis. By January it will be clear that Trump has no path to stopping Biden’s inauguration, whether he ultimately concedes or not. It’s possible that Trump’s supporters in the nearly evenly divided Peach State will be furiously mobilized for revenge. But they could just as easily wind up dispirited and locked in an internal civil war that delivers the slimmest of Senate majorities to the Democrats and the gavel into the hands of Vice-President Kamala Harris.
It’s also theoretically possible that Trump could run again in 2024. But he might just be attempting to do so from jail or bankruptcy court as a 78-year-old shell of himself. It’s possible that another conservative like Tom Cotton, Tucker Carlson or even Donald Trump, Jr. could try to re-ignite Trump’s magic. But many downballot Republicans tried to emulate Trump in 2018 only to lose to the blue Democratic wave. And it’s not at all clear that any heir apparent (including his literal heir) could mimic Trump’s unique combination of celebrity, faux bravado and utter sociopathic shamelessness that appeals to so many deeply insecure men and authoritarian personalities.
Time will tell. If Trumpism can continue to pull strong numbers even without Trump himself on the ballot, the country (and the world) will be in for a very difficult next decade or two. But if it can’t, generational trends will compound the interest on a bad demographic deficit for the GOP that will overwhelm even its artificial geographic advantages. And if Democrats manage to change even a few of the rules, from the electoral college to adding states to reversing gerrymandering, the disaster for the GOP may be irreversible.


washingtonmonthly--2020-11-22--Not Everything Can Move to Substack or the Times

Journalism is currently in a period of simultaneous consolidation and decentralization .
Neither are particularly healthy for sustained , quality journalism and opinion .
On the consolidation side , the New York Times and Washington Post increasingly dominate the media landscape , boasting record subscriptions and readership .
These organizations attract almost all the eyeballs and top-flight talent among mainstream within the mainstream space .
High-profile writers like Ezra Klein are moving there , furthering the trend toward monopolization in organized journalism and opinion writing .
Meanwhile there is also a worrying trend toward individualized decentralization .
Andrew Sullivan , @ @ @ @ @ @ @ Newton and many others have left their respective organizations–many of which they cofounded–to start Substack newsletters .
This trend represents a quasi-retro return to subscription-model blogging but in an atomized way .
It ’ s interesting , but there are two problems : first , problem is that there aren ’ t enough subscription dollars to go around for every worthy journalist and opinion writer ; second , new and upcoming writers can hardly get noticed in an environment where the only games in town are the Times/WaPo or celebrity journalist newsletters .
@ @ @ @ @ @ @ organizations like the Washington Monthly .
Medium-sized organizations can hire promising new talent and foster creative cultures different from the consolidated media empires , without fragmenting into thousands of individual brands .
But as the challenges from these trends grow , in addition to downward pressure on revenues from social media , organizations like the Washington Monthly now need your help more than ever .
Please , if you can , help make a donation to keep our work going .
If you can give today , NewsMatch will match it with generous @ @ @ @ @ @ @ organizations like the Monthly–which also means your donation is tax-deductible . )
Plus , if you give $ 50 or more , you ’ ll receive a free one-year subscription to the print edition of the Washington Monthly–an always welcome arrival to alleviate quarantine boredom and broaden horizons .
A world where the writers of the Monthly and similar hard-hitting news organizations all moved like dandelions in the wind to bang the tin can on Substack or beg for a job at the Times would be a sad one .
Please help us @ @ @ @ @ @ @ us keep delivering you the quality journalism and opinion we ’ ve become famous for .
And thank you .

Journalism is currently in a period of simultaneous consolidation and decentralization. Neither are particularly healthy for sustained, quality journalism and opinion.
On the consolidation side, the New York Times and Washington Post increasingly dominate the media landscape, boasting record subscriptions and readership. These organizations attract almost all the eyeballs and top-flight talent among mainstream within the mainstream space. High-profile writers like Ezra Klein are moving there, furthering the trend toward monopolization in organized journalism and opinion writing.
Meanwhile there is also a worrying trend toward individualized decentralization. Andrew Sullivan, Glenn Greenwald, Matt Yglesias, Casey Newton and many others have left their respective organizations–many of which they cofounded–to start Substack newsletters. This trend represents a quasi-retro return to subscription-model blogging but in an atomized way. It’s interesting, but there are two problems: first, problem is that there aren’t enough subscription dollars to go around for every worthy journalist and opinion writer; second, new and upcoming writers can hardly get noticed in an environment where the only games in town are the Times/WaPo or celebrity journalist newsletters.
A healthy media environment still needs medium-sized organizations like the Washington Monthly. Medium-sized organizations can hire promising new talent and foster creative cultures different from the consolidated media empires, without fragmenting into thousands of individual brands. But as the challenges from these trends grow, in addition to downward pressure on revenues from social media, organizations like the Washington Monthly now need your help more than ever.
Please, if you can, help make a donation to keep our work going. If you can give today, NewsMatch will match it with generous challenge grant dedicated to helping nonprofit news organizations like the Monthly–which also means your donation is tax-deductible.) Plus, if you give $50 or more, you’ll receive a free one-year subscription to the print edition of the Washington Monthly–an always welcome arrival to alleviate quarantine boredom and broaden horizons.
A world where the writers of the Monthly and similar hard-hitting news organizations all moved like dandelions in the wind to bang the tin can on Substack or beg for a job at the Times would be a sad one. Please help us stay healthy this holiday season and let us keep delivering you the quality journalism and opinion we’ve become famous for. And thank you.


washingtonmonthly--2020-11-23--Why GOP Officeholders Tolerate Trump’s Election Antics

Dan Pfeiffer , the former White House Communications Director and senior advisor to Barack Obama , doesn ’ t believe that cowardice explains why Republican officeholders are not doing more to stop Donald Trump ’ s post-election madness .
In an echo of an analysis I ’ ve provided , Pfeiffer declares that the Party of Lincoln is working to maximize the white vote : Republicans represent a dwindling base of mostly white , working class voters .
With every passing election , this base gets smaller .
Therefore , in order to win they need to get higher and @ @ @ @ @ @ @ has proven that the best way to jack up turnout with these voters is through an apocalyptic , conspiracy theory laden narrative of victimization at the hands of others .
The “ others ” in this narrative are almost always people of color .
This is the core of Trump ’ s white nationalist immigration appeal — immigrants/gang members/Muslims are coming to your community to take your job and threaten your life .
It ’ s bullshit , but it ’ s clearly powerful with a relatively sizable portion of the population .
@ @ @ @ @ @ @ that as more educated white voters abandon the GOP , winning an ever-larger share of a shrinking white vote gets more challenging , and the victimization/race-baiting card has to do more work .
That ’ s where all the crazy-talk comes in .
Even if Republican officeholders don ’ t subscribe to these theories themselves , they don ’ t believe they can do without them , and they ’ re probably right , at least for the moment .
But racism and cockeyed conspiracy theories were never the only play for the @ @ @ @ @ @ @ the white share of the electorate is suppressing the votes of people of color and other reliable Democratic voting blocs , like highly mobile college students .
That ’ s why we ’ ve seen voter ID laws proliferate and GOP officeholders in the South taking advantage of the Supreme Court ’ s 2013 ruling that rendered moot the Voting Rights Act ’ s provision that any election-related changes in most of the region be approved by the Justice Department or the D.C. Court of Appeals .
It ’ s why Republicans purge @ @ @ @ @ @ @ resist vote-by-mail , insist on unscientific signature matching requirements , and consolidate polling stations in Democratic areas to create long lines .
For Pfeiffer , it ’ s a mistake to think there ’ s a big distinction between erecting barriers to voting and refusing to count votes .
“ I don ’ t know why anyone is surprised by this , ” Pfeiffer argues , “ Voter suppression has been the primary political strategy of the Republican Party for more than a decade .
Throwing out legally cast ballots is barely a @ @ @ @ @ @ @ from stopping legally eligible voters from casting ballots in the first place.
” If you think of elections as a two-part process , Pfeiffer makes even more sense .
The first part is Election Day , along with all the early and absentee ballots .
Win the most votes , and you win the election .
But there are battles waged before the votes are cast over who can and can not vote , where they can vote , how difficult it will be for them to vote , whether their ballots will @ @ @ @ @ @ @ and so on .
By gerrymandering districts , politicians famously choose their voters rather than being chosen by them .
Winning control of judicial panels makes it more likely that legal challenges will hold up in court .
It helps if the governor , legislature , attorney general , and secretary of state are in the control of your party .
The idea is to win the election before it occurs by changing the shape of the electorate .
We can measure progress by how these two impulses compare in relative strength .
@ @ @ @ @ @ @ to vote .
The black vote wasn ’ t secured nationwide until 1965 .
Voters under 21 earned the right to vote in 1972 .
In recent years , early and mail voting have become more widely available , reaching an all-time high in 2020 in response to the COVID-19 pandemic .
What we see now is different in detail , as it ’ s still a fundamental disregard for the consent of the governed .
Curtailing the electorate undermines the legitimacy of its choices .
Just as we would no longer accept @ @ @ @ @ @ @ from casting ballots , we shouldn ’ t accept one where voters are intentionally forced to wait in eight-hour lines or their ballots are thrown out by poll workers acting as handwriting “ experts.
” We certainly can not abide Trump ’ s lawyers who would throw out mail-in votes or the returns from entire counties .
Republican officeholders would be perfectly happy to go along with these extreme theories , Pfeiffer suggests , if they saw a prospect of success .
They ’ re not tolerating Trump ’ s actions from simple @ @ @ @ @ @ @ that if things ever got really serious , the Republicans would step in to stop the election theft .
I do not believe that .
Math — not morals — is why Biden ’ s election victory is secure .
He simply won by too large a margin in too many states for the results to be overturned .
I believe without a shadow of doubt that if the election came down to a small margin in one state , the Republican Party — from top to bottom — would be engaged in @ @ @ @ @ @ @ will of the voters .
This is a conservative and reactionary impulse , not a partisan one .
When race-baiters found their home in the Democratic Party , we had Jim Crow .
Today , we have a Trump-led GOP .
For both groups , the will of the people is only valid if it brings victory .
The Republicans want to support the myth of our representative system , which is why they won ’ t go along with simply ignoring the results of the 2020 election based on nothing more than @ @ @ @ @ @ @ up in court .
But , Pfeiffer is correct that if they could get away with stealing the election while retaining the fiction that we live in a Republic rather than a dictatorship , they would .

Dan Pfeiffer, the former White House Communications Director and senior advisor to Barack Obama, doesn’t believe that cowardice explains why Republican officeholders are not doing more to stop Donald Trump’s post-election madness. In an echo of an analysis I’ve provided, Pfeiffer declares that the Party of Lincoln is working to maximize the white vote:
Republicans represent a dwindling base of mostly white, working class voters. With every passing election, this base gets smaller. Therefore, in order to win they need to get higher and higher turnout from that base. Trump has proven that the best way to jack up turnout with these voters is through an apocalyptic, conspiracy theory laden narrative of victimization at the hands of others. The “others” in this narrative are almost always people of color. This is the core of Trump’s white nationalist immigration appeal — immigrants/gang members/Muslims are coming to your community to take your job and threaten your life. It’s bullshit, but it’s clearly powerful with a relatively sizable portion of the population.
The problem with this craven strategy is that as more educated white voters abandon the GOP, winning an ever-larger share of a shrinking white vote gets more challenging, and the victimization/race-baiting card has to do more work. That’s where all the crazy-talk comes in. Even if Republican officeholders don’t subscribe to these theories themselves, they don’t believe they can do without them, and they’re probably right, at least for the moment.
But racism and cockeyed conspiracy theories were never the only play for the Republicans. Just as important as maximizing the white share of the electorate is suppressing the votes of people of color and other reliable Democratic voting blocs, like highly mobile college students. That’s why we’ve seen voter ID laws proliferate and GOP officeholders in the South taking advantage of the Supreme Court’s 2013 ruling that rendered moot the Voting Rights Act’s provision that any election-related changes in most of the region be approved by the Justice Department or the D.C. Court of Appeals. It’s why Republicans purge voter lists, target early voting, resist vote-by-mail, insist on unscientific signature matching requirements, and consolidate polling stations in Democratic areas to create long lines.
For Pfeiffer, it’s a mistake to think there’s a big distinction between erecting barriers to voting and refusing to count votes. “I don’t know why anyone is surprised by this,” Pfeiffer argues, “Voter suppression has been the primary political strategy of the Republican Party for more than a decade. Throwing out legally cast ballots is barely a hop, skip, and a jump from stopping legally eligible voters from casting ballots in the first place.”
If you think of elections as a two-part process, Pfeiffer makes even more sense. The first part is Election Day, along with all the early and absentee ballots. Win the most votes, and you win the election. But there are battles waged before the votes are cast over who can and cannot vote, where they can vote, how difficult it will be for them to vote, whether their ballots will be easy or difficult to challenge, and so on. By gerrymandering districts, politicians famously choose their voters rather than being chosen by them. Winning control of judicial panels makes it more likely that legal challenges will hold up in court. It helps if the governor, legislature, attorney general, and secretary of state are in the control of your party. The idea is to win the election before it occurs by changing the shape of the electorate.
We can measure progress by how these two impulses compare in relative strength. Until 1920, women were not allowed to vote. The black vote wasn’t secured nationwide until 1965. Voters under 21 earned the right to vote in 1972. In recent years, early and mail voting have become more widely available, reaching an all-time high in 2020 in response to the COVID-19 pandemic. What we see now is different in detail, as it’s still a fundamental disregard for the consent of the governed.
Curtailing the electorate undermines the legitimacy of its choices. Just as we would no longer accept an election in which women were forbidden from casting ballots, we shouldn’t accept one where voters are intentionally forced to wait in eight-hour lines or their ballots are thrown out by poll workers acting as handwriting “experts.” We certainly cannot abide Trump’s lawyers who would throw out mail-in votes or the returns from entire counties.
Republican officeholders would be perfectly happy to go along with these extreme theories, Pfeiffer suggests, if they saw a prospect of success. They’re not tolerating Trump’s actions from simple lack of bravery:
The implication is that if things ever got really serious, the Republicans would step in to stop the election theft. I do not believe that. Math — not morals — is why Biden’s election victory is secure. He simply won by too large a margin in too many states for the results to be overturned. I believe without a shadow of doubt that if the election came down to a small margin in one state, the Republican Party — from top to bottom — would be engaged in a full fledged effort to overturn the will of the voters.
This is a conservative and reactionary impulse, not a partisan one. When race-baiters found their home in the Democratic Party, we had Jim Crow. Today, we have a Trump-led GOP. For both groups, the will of the people is only valid if it brings victory.
The Republicans want to support the myth of our representative system, which is why they won’t go along with simply ignoring the results of the 2020 election based on nothing more than crazed theories that don’t stand up in court. But, Pfeiffer is correct that if they could get away with stealing the election while retaining the fiction that we live in a Republic rather than a dictatorship, they would.