Today's Beau

Justin king - Beau Of The Fifth Column

It ain't over. Because it's never over.

"...a more perfect union..." is a reminder that we have to keep working on it.

Democracy is not something we have

if it's not something we do.

Simone Sanders - Ruth Ben-Ghiat

"There's a whole shared coup knowledge"

The Funhouse

Kevin McCarthy has lost on 6 ballots so far.

And as fun as it is to sit back and watch the GOP implode, remember: There's a fair probability that making democracy look bad is the point of the exercise for some of these jokers.

Election Fantasies

These guys always say there's massive fraud, and then set out to prove it by actually committing election fraud, and then pretending that being caught is proof of concept.

And getting caught doing it doesn't even matter - mostly because they usually turn themselves in. But instead of thinking how a national election could be swung "the wrong way" by a few knuckleheads fucking with the mail-in system, they just stop right there and yell about phantoms running around stealing elections.

Here's the thing:

• Yes there's voter fraud. And yes, there's voter fraud exactly like what this Harry Wait idiot pulled.
• But no - in order to swing a national election, someone would have to put in about a dozen fraudulent ballots in each of the 176,933 voting precincts

That's a conspiracy that simply can't hold together. If you could find 2,500 people willing to risk 12 or 15 years in federal lockup, you could put 50 people in every state, and they'd each have to cover 70 precincts. And then you'd have to worry about 2,500 people being able to keep quiet about it.

Like Grandpa said: 3 people can keep a secret - as long as 2 of 'em are dead.

I think that's probably why somebody came up with the stories about Hugo Chavez, and Italian internet satellites intercepting the voting machine signals, and whatever other weird shit they put out there.

Anyway, WaPo observes a change in how Republicans are trying to deal with their crazies, and how the crazies aren't going anywhere anytime soon.

As Republicans inch away from election denialism, one activist digs in

Harry Wait ordered ballots in the names of others to show voter fraud is possible. Now facing up to 13 years in prison, he is undaunted in his crusade to change Wisconsin’s voting laws.

RACINE, Wis. — Harry Wait marched into the courthouse, walked through a metal detector and planted himself on a bench in the ornate lobby. His supporters, some wearing bright yellow “Free Harry” T-shirts, chatted amiably as they followed him inside.

Emboldened by former president Donald Trump’s false election claims, Wait in July had ordered absentee ballots in the names of others for the purpose, he said, of exposing what he considers flaws in Wisconsin’s voting systems. Now, on a warm September afternoon, he was using the resulting voter-fraud charges against him — which could land him in prison for up to 13 years — to amplify his argument that absentee balloting should be severely restricted.

“I’d do it again in a heartbeat because to save the republic, soldiers have to draw blood and blood be drawn,” Wait said as he sat on the courthouse bench.

For two years, a large segment of Trump supporters has embraced discredited claims that the 2020 election was stolen. The strategy of cultivating anger over supposed voter fraud proved politically disastrous this fall, when election deniers lost high-profile races from Arizona to Pennsylvania.

Now some Republican leaders are urging their party to downplay election denialism and shift its focus to other issues to improve its chances of winning the presidency in 2024.

But activists such as Wait are making that difficult, showing how hard it will be to extinguish the grievance and distrust whipped up by Trump and his allies. Undeterred by the November results, Wait in recent weeks has rallied for overhauling election rules, planned a January protest at the state Capitol and pledged to use the charges against him to trumpet his call for new voting laws. For him, the fight over elections continues.

A Harry Wait supporter wears a pin to show support at the Racine County Courthouse in Racine, Wis., on Oct. 7. (Alex Wroblewski/for The Washington Post)

There are others like him. Three months after Wait made headlines, an election official in Milwaukee engaged in similar behavior to bring attention to what she sees as voting vulnerabilities. Election deniers who lost their bids for statewide office in Michigan this fall are running to lead the state’s Republican Party. Former professor David Clements, who spent the summer visiting small towns around the country to spread false claims about the 2020 election, reappeared after the midterms to urge officials in Arizona to defy state law and refuse to certify the state’s results.

Former Trump adviser Stephen K. Bannon continues to dwell on election issues on his podcast. MyPillow CEO Mike Lindell, now making a long-shot bid for chairman of the Republican National Committee, remains committed to funding efforts to ban the use of voting machines. Trump himself, running for president once again, has shown no signs of letting up on his false claims about a stolen 2020 election.

Some Republicans worry that the emphasis on electoral fraud will prove self-defeating for the party.

When voters are told “that their vote doesn’t count, they stop voting,” said former congressman Reid J. Ribble (R-Wis.). He encouraged Republicans to push back on the claims of activists including Wait by assuring voters that elections are secure and the results accurate. If they don’t, he said, they risk losing more elections.

“The House wave didn’t happen, because there were too many election deniers,” he said.

But Wait, an ardent Trump supporter who does not consider himself a Republican, isn’t inclined to heed Ribble’s plea to move on.

Wait, 68, is a veteran of fights against officialdom in Racine, a blue-collar city on Lake Michigan 25 miles south of Milwaukee. After receiving a disorderly conduct ticket in 2011, Wait launched a blog to chronicle what he considered the failures of local government. The retired business consultant kept going after he beat his citation and several years later formed a group with others to marshal their energy. They called themselves HOT Government to highlight their support for a form of politics that they describe as honest, open and transparent.

When a school referendum passed by five votes in the spring of 2020, Wait helped organize a lawsuit over the recount — only to lose 7-0 before the state Supreme Court. The experience led Wait to dive into how elections are conducted in Wisconsin, just as Trump was ramping up his complaints about supposedly fraudulent voting.

This summer, Wait discovered that a state website would allow him to request someone else’s absentee ballot and have it sent to any address. Election officials, who designed the site to make it easy for out-of-town voters to obtain ballots, have maintained that the site does nothing to diminish election integrity, saying anyone who attempted voter fraud would be quickly caught.

But Wait saw the potential for something nefarious and set out to prove a point.

He ordered ballots under the names of two officials with whom he has long clashed — one Republican, one Democrat — and asked that the ballots be delivered to his address. Wait checked a box saying he was confined to his home because of age or disability, which allowed him to get around a state law that requires most voters to provide a copy of a photo ID the first time they request an absentee ballot. He also checked a box acknowledging that he understood he could face charges if he impersonated someone else.

The ballots he requested were in the names of Racine Mayor Cory Mason, a former Democratic state representative, and Assembly Speaker Robin Vos, the most powerful Republican in state government. Wait received Mason’s ballot a few days later and quickly turned it over, unopened, to a sheriff’s deputy; the election clerk in Vos’s hometown never mailed Vos’s ballot to Wait.

Shortly after Wait made the requests, he sent an email to Mason and Vos, as well as to Racine County’s top prosecutor and sheriff. “I stand ready to be charged for exposing these voting vulnerabilities,” he told them.

Election officials in Wisconsin and around the country have spent the past two years battling far-fetched conspiracy theories, including debunked ones alleging that voting machine totals were altered by Italian satellites or thermostats connected to the internet. Wait’s tactic raised a new type of challenge — actual fraud that arguably could go undetected if carried out on a small scale.

Jay Stone, a retired hypnotherapist who has filed more than a dozen challenges to Wisconsin’s voting policies, talked to Wait the night he requested the ballots under others’ names. He said he opposed the idea but added, “You can’t talk Harry out of anything.”

“Look up the cingulate gyrus of the brain. It’s the brain’s gear shifter,” Stone said. “If a car goes — an automatic car — goes zero to 50, it shifts from first gear to second and third gear, decelerates, downshifts. Some people have a gear shifter that gets stuck. That’s Harry.”

In September, the judge hearing Wait’s case imposed a gag order that prevents him from talking about his case. But, in interviews, at rallies and at HOT Government meetings, Wait eagerly shares his views on election policies and the officials who oversee them.

He argues that the Republican and Democratic parties have conspired to establish election laws that protect the powerful. He says the 2020 election was stolen through voting machine algorithms and other means, despite a string of reviews and court rulings that found no significant fraud. Wait, whose legal bills are being covered by the conservative Thomas More Society, wants to get rid of voting machines, limit absentee voting and require all residents to re-register to vote.

“I know both sides cheat. The problem is catching them,” he said.

Mason learned of what had happened from Wait’s email but didn’t know at first whether to believe him. “It was disbelief followed by disgust,” Mason said of finding out what Wait had done.

While frustrated, Mason said he thought the ordeal over his ballot showed that Wisconsin’s systems work. Mason was able to cast a ballot and Wait within a month was charged with two felonies over unauthorized use of personally identifiable information and two misdemeanors relating to election fraud.

“It’s not really about my vote or Speaker Vos’s vote specifically,” Mason said. “It’s about whether or not this stunt is going to intimidate people, policymakers specifically, into making changes that will make it harder for people to vote.”

In response to Wait’s actions, the state elections commission mailed postcards to every voter who had an absentee ballot sent somewhere other than their home — nearly 13,000 in all. The commission has received no reports that other ballots were sent somewhere they should not have been.

Ann Jacobs, a Democrat who sits on the bipartisan commission, said few people do what Wait did because they know they are likely to be caught if they try it. If someone casts a ballot in someone else’s name, the victim will discover it when he or she goes to the polls, she noted.

“In all areas, we balance access with security,” she said. “In a situation like this, where it is such a rare occurrence [and] the penalties are severe, the real question has to be whether we need to make it harder to vote to thwart would-be criminals from doing something like this. And my view of it is, I don’t think we should.”

Some Republicans have called for a tightening of the state’s absentee-voting policies, but there is little chance of that happening. Republicans control the state legislature and have, over the past two years, approved election bills only to see them vetoed by Gov. Tony Evers (D), who won a second term in November.

Three months after Wait ordered the ballots, Milwaukee’s deputy elections director used the same website to create three false identities and ask that military ballots be sent in those names to a state lawmaker. The elections official, Kimberly Zapata, later told prosecutors she did so to alert the public to what she considers a flaw in the state’s voting laws. Unlike most states, Wisconsin allows members of the military to get absentee ballots without registering to vote, and the state site makes it easy to request such absentee ballots.

Zapata was fired from her position and charged with a felony and three misdemeanors. She faces up to five years in prison. Wait and his allies held a rally outside a court hearing for Zapata this month, some of them wearing military-style dog tags that say they marks them as members of “Harry’s Army.”

In the coming months, Wait’s legal team will file briefs contending that Wait’s actions amounted to a form of political speech that is protected by the First Amendment. The judge will consider those arguments at a hearing in April.

At a HOT Government gathering in November, in the back of a Racine bar where the group meets, Wait expressed confidence about ultimately winning his case and pledged to take it to an appeals court, if necessary.

“All I can say is, my case is an attorney’s dream,” he told the group, “because they love to bill.”

Our Mr Brooks

David Brooks gets paid handsomely to do two basic things:

1. He soft peddles every stoopid fucked up policy move the Republicans make
2. When the shit hits the fans - as it always does - he charges in to smooth it all over with some good old-fashioned Both-Sides bullshit - &/or blame the hippies and their 60s liberal culture.

In today's piece, he speaks kindly of Joe Biden, crediting him for some solid leadership and adept statecraft. He does this in a kind of left-handed way of course, but still - complimentary.

And Brooks - assuming this is actually David Brooks, and he's not being held with a gun to his head - comes out in favor of liberal democracy. In fact, he uses the word "liberal" 4 times, and every time it's in a way that isn't snarky and snide and dismissive and condescending.

"...to preserve a stable liberal world order..."

(And suddenly a liberal world order is a good thing? Please - do go on.) 

"This liberal idea has been tarnished over the last six decades."

(There's that passive voice - "mistakes were made" - he just couldn't help it)

But then:

"It’s a reminder that the liberal alliance is still strong. It’s a reminder that while liberal democracies blunder, they have the capacity to learn and adapt."

At first blush, it's, "Won't wonders never cease?". But then I'm like, "Whoa - shit must be pretty bad for Mr Sulzberg to pay for a pretty full-throated defense of Liberal Democracy.

So - grains of salt. But anyway:

Biden’s America Finds Its Voice

The cameras mostly focused on Volodymyr Zelensky during his address to Congress on Wednesday night, but I focused my attention as much as I could on the audience in the room. There was fervor, admiration, yelling and whooping. In a divided nation, we don’t often get to see the Congress rise up, virtually as one, with ovations, applause, many in blue dresses and yellow ties.

Sure, there were dissenters in the room, but they were not what mattered. Words surged into my consciousness that I haven’t considered for a while — compatriots, comrades, co-believers in a common creed.

Zelensky and his fellow Ukrainians have reminded Americans of the values and causes we used to admire in ourselves — the ardent hunger for freedom, the deep-rooted respect for equality and human dignity, the willingness to fight against brutal authoritarians who would crush the human face under the heel of their muddy boots. It is as if Ukraine and Zelensky have rekindled a forgotten song, and suddenly everybody has remembered how to sing it.

Zelensky was not subtle about making this point. He said that what Ukraine is fighting for today has echoes in what so many Americans fought for over centuries. I thought of John Adams, Frederick Douglass, Theodore Roosevelt, George Marshall, Fannie Lou Hamer, the many unsung heroes of the Cold War. His words reminded us that America supports Ukraine not only out of national interest — to preserve a stable liberal world order — but also to live out a faith that is essential to this country’s being and identity. The thing that really holds America together is this fervent idea.

This liberal ideal has been tarnished over the last six decades. Sometimes America has opposed authoritarianism with rash imprudence — the Bay of Pigs, Vietnam, Iraq. Other times, America has withdrawn behind its ocean barriers and done little while horror unfolded — the genocide in Rwanda, the civil war in Syria, the failure during the Obama and Trump administrations to support Ukraine sufficiently as Putin tested the waters and upped the pressure.

American policy has oscillated between a hubristic interventionism and a callous non-interventionism. “We overdo our foreign crusades, and then we overdo our retrenchments, never pausing in between, where an ordinary country would try to reach a fine balance,” George Packer wrote in The Atlantic recently. The result has been a crisis of national self-doubt: Can the world trust America to do what’s right? Can we believe in ourselves?

Finding the balance between passionate ideals and mundane practicalities has been a persistent American problem. The movie “Lincoln” with Daniel Day-Lewis was about that. Lincoln is zigging and zagging through the swamps of reality, trying to keep his eye on true north, while some tell him he’s going too fast and others scream he’s going too slow.

Joe Biden has struck this balance as well as any president in recent times, perhaps having learned a costly lesson from the heartless way America exited from Afghanistan. He has swung the Western alliance fervently behind Ukraine. But he has done it with prudence and calibration. Ukraine will get this weapons system, but not that one. It can dream of total victory, but it also has to think seriously about negotiations. Biden has shown that America can responsibly lead. He has shown you can have moral clarity without being blinded by it.

Both Zelensky and Biden have been underestimated. Zelensky had been a comedian and so people thought he was a lightweight. He dresses like a regular guy and eschews the trappings of power that obsess people like Vladimir Putin and Donald Trump.

For his part, Biden doesn’t fit the romantic “West Wing” fantasy that many progressives have in their heads. A progressive president should be delivering soaring, off-the cuff speeches that make you feel good about yourself!

But the truth is that both men have delivered again and again. The military struggle in Ukraine might turn grim in the coming months, but both men are partly responsible for a historic shift in the global struggle against brutality and authoritarianism.

A few years ago, democracies seemed to be teetering and authoritarians seemed to be on the march. But since, we’ve had heroic resistance from Kyiv and steady leadership in the White House. As I look at the polls and the midterm results, I see Americans building an anti-Trump majority, which at least right now seems to make it far less likely Trump will ever be president again.

Meanwhile events have shown — yet again — that you can’t run a successful society if you centralize power, censor knowledge and treat your people like slaves. The Times’s awe-inspiring reporting on the Russian war effort shows how pervasive the rot there is. China’s shambolic Covid policies are just one example of the truth that authoritarians can seem impressive for a season, but eventually error, rigidity and failures of human judgment accumulate.

On his first foreign trip since the war began, Zelensky came to America. It’s a reminder that for all the talk of American decline, the world still needs American leadership. It’s a reminder that the liberal alliance is still strong. It’s a reminder that while liberal democracies blunder, they have the capacity to learn and adapt.

Finally, Zelensky reminded us that while the authoritarians of the world have shown they can amass power, there is something vital they lack: a vision of a society that preserves human dignity, which inspires people to fight and binds people to one another.

Today's Dog-Ass Republican

We have to figure out how to get a much bigger majority of Americans to understand how this NeoGOP operates.

Georgia Candidate Who Thinks 2020 Was Stolen Apparently Voted Illegally 9 Times

Brian Pritchard once accused Gov. Brian Kemp of being “complicit” in the supposedly stolen election.

A right-wing talk show host running in a high-profile special election in Georgia allegedly voted illegally nine times while serving probation for felony convictions, the Atlanta Journal-Constitution reported Monday.

The candidate, Brian K. Pritchard, is running in a Jan. 3 special election to replace former Georgia Speaker of the House David Ralston, who died last month shortly after winning re-election. Pritchard is running against Sheree Ralston, the late legislator’s widow, in a safe Republican seat that David Ralston won uncontested last month.

Pritchard, who is now accused of voting illegally, has also falsely claimed the 2020 presidential election was “stolen” from former President Donald Trump, and accused Republican state officials of being “complicit,” according to the Journal-Constitution.

When Pritchard first registered to vote in Georgia in January 2008, he was still on probation after he pleaded guilty in 1996 to felony forgery and theft charges in Allegheny County, Pennsylvania. In Georgia, former felons aren’t allowed to vote until they’ve completed their sentence, which includes probation.

In February 2021, Georgia’s State Election Board accused Pritchard of voting while serving a felony sentence, one of dozens of voter fraud cases referred to prosecutors at the time, according to the Clay County Progress. At the time, Pritchard’s attorney said Pritchard was not aware he was considered a felon when he cast his ballots, according to the Journal-Constitution.

And last week, the office of Georgia Attorney General Chris Carr—one of those officials Pritchard accused of being “complicit” in the “stolen” election, according to the Journal-Constitution—said in a filing that Pritchard had broken the law each time he voted, the Journal-Constitution reported.

Carr’s office said Pritchard voted five times in 2008 and four times in 2010, according to August-based TV station WDRW. Carr’s office has requested a hearing in Fannin County, where Pritchard lives, for the week of Jan. 9, after the special election.

Pritchard could face up to $45,000 in fines, but he hasn’t been criminally charged and he wouldn’t be disqualified from serving in the legislature if he wins the election, according to the Journal-Constitution.

Pritchard has vehemently denied the accusation and appeared to imply he was targeted due to his candidacy. “I’ve not done anything wrong here,” Pritchard, who also owns a media company called FetchYourNews, told the Journal-Constitution Monday. “I guess if you’re apprehending public enemy No. 1, here I am.”

“I will not be intimidated,” Pritchard told the Dawson County News last week. “I will not be bullied.”

Pritchard said in a press release when he announced his run last week that he “will always support our law enforcement.”

“The safety and well-being of our citizens will alway be a top priority of mine,” Pritchard said in the release. “Keep Atlanta crime out of our mountains!”

These accusations haven’t stopped Pritchard from spreading lies about the 2020 election. Pritchard accused Carr and Gov. Brian Kemp of being “complicit” in a stolen election during an April episode of his web show.

“I don't believe 81 million people voted for [Joe Biden],” Pritchard said at the time. “When they stole an election, and Brian Kemp was complicit, the governor of Georgia, and Chris Carr the attorney general was complicit in Georgia, and you see Joe Biden…this is what they did to us.”

During the same episode, Pritchard said that Biden has dementia and called Georgia Sen. Raphael Warnock a “false prophet.”

The SCOTUS Threat

It's a dangerous time of glaring contradictions and strange-as-fuck bedfellows.

Among the truly thorny issues we have to deal with now is the legitimacy of the Article 3 Branch - the courts.

The insidious thing is that the main point the wingnuts are always trying make is that government is bad - government can't be trusted - government is illegitimate.

So what happens once the plutocrats have salted SCOTUS with such a hardcore bunch of authoritarian activists that "the left" starts to wail about the court being corrupt - which makes us all unwitting accomplices in tearing down the institutions of our democracy.

Even if the good guys win this one, and we live to fight another day, don't believe for half a New York minute that the dark forces won't come around again for another swipe at ending our little experiment in democratic self-government.

The Supreme Court’s Most Conservative Justices Got Outplayed on Wednesday

Great lawyering—and, surprisingly, Amy Coney Barrett—debunked a legal theory designed to subvert democracy.

After three hours of oral arguments at the Supreme Court on Wednesday, only one thing is certain: If the justices want to blow up federal elections, they will have nothing to hide behind—not history, not logic, and certainly not the Constitution. The three lawyers defending democracy methodically dismantled the “independent state legislature” theory from every conceivable angle, debunking each myth, misreading, and misrepresentation deployed to prop it up. They bested the conservative justices who tried to corner them, identifying faulty reasoning and bogus history with devastating precision.

Those of us who’ve been ringing the alarm over this dangerous theory—and who’ve been disgusted by the campaign to drag it from the far-right fringe all the way to the Supreme Court—can take solace knowing that these capable lawyers exposed it as an utter fraud. This idea was at the center of Donald Trump’s efforts to overturn the 2020 election, so it was a relief to hear five justices sound deeply skeptical that it has any basis in the Constitution. It is far too early to celebrate the demise of the independent state legislature theory, since four justices have already endorsed it. But the skepticism it faced at arguments suggests that democracy has a fighting chance of survival.

If Wednesday’s case, Moore v. Harper, is new to you, prepare to be startled by how ridiculous it is. The petitioners are Republican leaders of the North Carolina Legislature. They are angry that the North Carolina Supreme Court struck down the congressional map that they drew after the 2020 census—which was, objectively, an extreme partisan gerrymander. The court found that the map violated various provisions of the North Carolina Constitution, including a guarantee that “all elections shall be free.” There was nothing unusual about this decision: It is a bedrock principle of federalism that state courts have final authority over the meaning of state constitutions. Other courts, including the Supreme Courts of Florida and Pennsylvania, issued similar decisions invalidating congressional districts, and SCOTUS did not get involved.

But North Carolina Republicans decided to use this case to achieve a broader GOP ambition: the revival of a long-discredited doctrine known as the independent state legislature theory, or ISLT. This theory rests on the Constitution’s elections clause, which says the “times, places, and manner” of federal elections “shall be prescribed in each state by the legislature thereof.” It posits that this clause frees the state legislature from restraints imposed by the state constitution when regulating federal elections. Specifically, it would prevent state courts from enforcing those restraints when the legislature passes a law that violates them. The usual checks and balances of state lawmaking do not apply, the ISLT claims, because the U.S. Constitution gives power over the “manner” of these elections to the state legislature exclusively.

That’s the argument that the Supreme Court considered, and rejected, in Bush v. Gore. (A young Bush lawyer named Brett Kavanaugh was especially enamored of it.) It’s the argument that Trump deployed when he tried to nullify millions of votes in 2020. And it’s the argument that Ginni Thomas, wife of Justice Clarence Thomas, relied upon when lobbying state legislators to appoint “alternate electors” who would support Trump. And to be fair, it has some superficial appeal: Its proponents like to say that “legislature means legislature,” and that’s the end of it.

But it’s really not, for at least four reasons. First, when the Constitution was written, in 1787, legislature meant more than the specific body of elected representatives who pass laws. The word encompasses the entire power that makes laws—which is why, for instance, a governor can veto a congressional map. Second, even if legislature meant a specific political body, there’s no indication that the Framers intended to cut out the rest of state government, letting representatives flout all the usual rules of lawmaking. State legislatures have always been understood as creatures of their state constitutions, with no special power to bypass the charter that created them. Third, since the start of the republic, state courts have imposed limits on election laws passed by the legislature—a tradition that casts doubt on the hypothesis that the elections clause contains some secret, sweeping limit on their authority. Fourth, even if these three propositions are dead wrong, there’s still no clear, consistent standards that federal courts could use to determine when state courts misinterpret state election law. If the Supreme Court did adopt the ISLT, it would be flooded with disputes over election procedures, with no principled test to decide each case.

The justices pressed these issues through arguments on Wednesday. But before turning to them, it’s worth reiterating the cross-ideological consensus that the ISLT is bunk. A number of conservative legal luminaries filed briefs in Moore v. Harper opposing it, including Thomas Griffith, a former judge appointed by George W. Bush; J. Michael Luttig, a former judge appointed by George H.W. Bush; Steven Calabresi, a co-founder of the Federalist Society; Ben Ginsberg, a renowned GOP election lawyer; and Charles Fried, Ronald Reagan’s solicitor general. In an unprecedented move, the chief justices of all 50 states’ Supreme Courts urged SCOTUS not to adopt the theory for fear of confusion and mayhem at every level of the judiciary.

This outpouring of opposition can be attributed, in part, to Trump’s effort to use the ISLT in service of a coup. Reasonable Republicans recognize a reality described by Neal Katyal, who argued that “the blast radius” from ISLT “would sow elections chaos,” “invalidating 50 different state constitutions” and countless statutes empowering state courts to regulate elections. Katyal was in top form on Wednesday, playing both advocate and historian. The ISLT, he explained, is refuted by 233 years of history, “rejected by the Articles of Confederation, rejected by the early state constitutions, rejected by the founding practice,” and repudiated by the Supreme Court’s precedents. To accept the theory, he told the justices, “you’d have to ignore the text, history, and structure of our federal Constitution as well as nearly every state constitution today.”

Barrett sounded audibly skeptical throughout Wednesday’s arguments.

Katyal faced intense pushback from Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito, three fanatical believers in the ISLT, but he did not yield. He corrected Gorsuch’s bad history when the justice accused him of defending Virginia’s three-fifths clause. (“It’s a nice smear,” Katyal quipped.) He pushed back hard against Alito’s efforts to malign the North Carolina Supreme Court as an out-of-control partisan usurper, explaining that it sought to impose only “ordinary checks and balances.” And he soothed Justice Brett Kavanaugh by assuring him that there could be some “federal judicial review” here, just under a “sky-high standard” of deference to state courts.

Don Verrilli, also opposing the ISLT, did a commendable job conveying the ahistorical nature of the doctrine. He explained that the Founders’ fear of state legislatures’ manipulating elections could be traced back to the English bill of rights, “which was about the manipulation of electoral processes so that the Parliament would be in the king’s pocket, essentially.” This originalist argument infuriated Alito, who asked sarcastically if “anybody ever thought that the English bill of rights had anything to do with” partisan gerrymandering. (Not how originalism works!) Alito continued to slander the North Carolina Supreme Court by mischaracterizing its precedents, but Verrilli deftly corrected his mistakes. You could actually hear Alito rhythmically thumping the bench, which he tends to do when he tries and fails to pin down counsel.

Solicitor General Elizabeth Prelogar then tied up loose ends, mostly reassuring Chief Justice John Roberts that SCOTUS could reject the ISLT without relinquishing all power over state election disputes. By the time Prelogar approached the podium, the arguments were pointing toward a rough consensus: In rare, extreme cases, a state Supreme Court might misinterpret an election law so egregiously, so indefensibly, that SCOTUS could intervene. In most situations, though, state courts still get final say over the manner of federal elections.

The real debate is exactly how much deference SCOTUS should give to state courts: Should the deference be “sky high”? “Incredibly high”? Limited to cases when state courts jettison “reasonable interpretive principles” or “impermissibly distort, beyond any fair reading, the state law”? The answer matters a great deal, because it will mean the difference between maintaining a judicial check on state legislatures and handing legislators the power to rig elections.

In the end, Moore v. Harper probably comes down to Justice Amy Coney Barrett. Thomas, Alito, Gorsuch, and Kavanaugh have all endorsed the ISLT in the past. Roberts, along with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, clearly has no desire to revive it. So Moore is in Barrett’s hands, and it serves as the ultimate test of her self-proclaimed originalism.

So it was noteworthy that Barrett sounded audibly skeptical throughout Wednesday’s arguments. She was pretty tough on David Thompson, who represented North Carolina’s GOP legislative leaders, suggesting that his “formalistic test” was an unworkable stab at “trying to deal with our precedent,” which cut against him. Thompson tried to draw a line between “substantive and procedural,” but Barrett wasn’t buying it: “As a former civil procedure teacher, I can tell you that is a hard line to draw and a hard line to teach students in that context as well.” She also pointedly noted that Thompson’s standards for implementing the ISLT were not “more manageable” than the North Carolina Supreme Court’s standards for measuring gerrymanders. It was a polite way of calling Thompson a hypocrite.

Barrett’s questions for Katyal, Verrilli, and Prelogar were much more sympathetic. The justice essentially asked Katyal how the court should write a decision rejecting the ISLT. And she strongly implied to Verrilli that SCOTUS did not even have jurisdiction to hear the case. Overall, Barrett sounded eager to end Moore v. Harper with a whimper.

Which is what any honest originalist would be obligated to do. Scholars of American legal history, particularly in the founding era, have lined up in this case to explain why the ISLT is totally foreign to the laws and traditions of this nation. They have presented overwhelming evidence to support their position, evidence that is not remotely countered by the other side. There are so many political factors in this case. It is haunted by the ghosts of Bush v. Gore and Trump’s coup—both confirmation that the ISLT can be manipulated for scurrilous ends. But the promise of originalism is that it lets judges cut through these extralegal considerations and cling to the original public meaning of the Constitution. Moore v. Harper is one of the rare cases in which that meaning is crystal clear. If Barrett doesn’t let politics interfere, she can turn this awful case into originalism’s shining moment.

Into The Weeds

I don't know what it is about the internal politics of the Legislative Branch that makes me all nerdy and shit, but I just can't seem to help myself when the subject is the actual machinery of a representative democracy.

Everybody's always trying to read the tea leaves, and I try to stay away from that part of it. But sometimes, there's a kind of inevitability to things that happen that even I can see coming if I look closely. And boy, do I fucking love looking closely at some of the weird shit that passes for "the learned discourse of sausage-making".

So here's a bit of a breakdown on Kevin McCarthy's Very Tough Row To Hoe.

House Republicans Face a Triple Threat

By Matthew N. Green

Mr. Green has written extensively about the Republican House Freedom Caucus and is an author of “Newt Gingrich: The Rise and Fall of a Party Entrepreneur.”

In the new year, Republicans will hold a majority in the House of Representatives. They will have the opportunity to set the chamber’s agenda, conduct oversight of the White House and amplify their platform in the run-up to the 2024 presidential election.

That’s the good news for the G.O.P. The bad news is that Democrats will still hold the presidency and control of the Senate. Also, with the new Congress in January, there will be no more than 222 Republicans in the chamber, just four more than a bare majority.

A narrow majority is not in itself sufficient to cripple a majority party. In the past two years, Democrats in the House and Senate proved that.

But House Republicans face low odds of success because of a triple threat: a fragile majority, factional divisions and untested leadership. Still, there are steps that party leaders should take to improve their chances of avoiding a partisan circus and perhaps even preside over a productive two years in power — and real risks if they defer instead to extremists in their ranks.

The House Freedom Caucus, an assertive faction of 40-odd lawmakers, includes the likes of Jim Jordan of Ohio, Marjorie Taylor Greene of Georgia and Lauren Boebert of Colorado. Generally, the caucus embraces confrontation over compromise, is disdainful of party loyalty — which extends to the selection of its leaders — and has a track record of killing its party’s own bills. In a slim majority, it holds greater leverage over any legislation.

Kevin McCarthy has made assiduous efforts to court the caucus over the past few years to become speaker, yet the caucus members’ skepticism of him in that role remains: In a recent vote for the party’s nominee for speaker, over 30 Republicans voted against him, and at least five conservatives have said that they will oppose him when the full House votes for its next speaker in January. That is more than enough to deny him the speakership, since the nominee must get a majority of the entire House, and no Democrat is expected to vote for Mr. McCarthy.

This makes Mr. McCarthy vulnerable. Freedom Caucus members are making demands that could ultimately be fatal to any hope of Republican success in the House. They want rules changes that, among other things, would weaken the speakership by making bipartisan coalitions harder to build, allowing only bills supported by a majority of the G.O.P. to come to the floor. Such a rule would constrain the speaker’s agenda-setting power and make it extremely hard to pass much-needed legislation unpopular with Republicans, like raising the debt ceiling.

Mr. McCarthy should not empower the Freedom Caucus at the expense of his own influence. Yes, he has to navigate a delicate path. But if he is elected speaker but gives away the store in the process, it will be a Pyrrhic victory.

At the moment, he seems inclined to give away the store. By not refusing caucus demands, he has most likely put himself along a troubled path similar to those of his predecessors Newt Gingrich and John Boehner. Mr. McCarthy has vowed to block an increase in the debt limit unless Democrats agree to spending cuts and suggested that the Homeland Security secretary, Alejandro Mayorkas, could face impeachment.

These ill-conceived pledges create false hopes among Republican lawmakers and voters of what the party can accomplish. It’s true that in seeking the speakership, Mr. McCarthy cannot simply ignore the Freedom Caucus, since it commands more than enough votes to torpedo his quest for speaker and any partisan Republican bill in the next Congress.

What happens if no one has enough votes to become Speaker?

To be elected speaker, a candidate must receive a majority of the votes cast. If no candidate wins a majority, the roll call is repeated until a speaker is elected.

And that leaves plenty of room for shenanigans. (you heard it here first, kids)

But political power comes in part from perceptions. If Mr. McCarthy surrenders too much to the caucus, it will reinforce the impression that he is less a leader than a follower and erode the clout he will need to lobby lawmakers on tough votes.

Furthermore, if as speaker he consistently defers to the Freedom Caucus, he risks alienating more moderate or swing-district Republicans (or both). Only a handful of these lawmakers would need to cross party lines in order for the minority party to get its way.

Republicans have made it clear that we should expect a buzz of activity in oversight hearings and committee-led investigations — possibly of elements of the F.B.I. and the Justice Department and a heavy dose of Hunter Biden.

Republican leaders can avoid making Congress look like a space exclusively for partisan show trials by being flexible in their agenda and seeking out majorities wherever they can find them. That could include partisan measures from the party’s Commitment to America platform, like funding for the police as well as some symbolic, non-consequential legislation that will please the party’s base. (Think resolutions that declare lawmaker opposition to “woke” teaching and illegal immigration.)

The G.O.P. might also try to pursue bipartisan legislation in areas like health or family care, since securing the votes of minority-party members on bills can make up for any defections within their own ranks. Bipartisan bills also have at least a plausible chance of getting the approval of the Democratic-led Senate and White House that they will need to become law.

When it comes to bills that the House must pass, like appropriations and an increase in the debt ceiling, Mr. McCarthy might have to follow in the footsteps of Speaker Boehner, who let party conservatives resist the passage of such measures until, facing economic catastrophe, he deferred to Republican moderates to pass them with Democrats.

If McCarthy tries the Boehner gambit, the crazies just might be crazy enough to call him.

Imagine what a gleeful little bunch the Chaos Caucus would be if they could "own the libs" and publicly spank the RINOs - even as the economy goes straight into the shitter.

Because don't forget the real probability that they'd be willing to tank the whole thing if it finished off American democracy and gave the plutocrats the vacuum they need to step in and take over. (a probability Mr Green seems to be ignoring)

And again - you heard it here first.

None of these strategies is a guarantee of success. And with such a slim majority, there is also the possibility, if remote, that the Republican Party loses power altogether because a few of its members resign or die in office or one or more members leave the party. In 1930, enough of the G.O.P.’s lawmakers passed away and were replaced by Democrats in special elections that the party was robbed of its majority.

In 2001, Senate Republicans failed to heed the warnings of Senator Jim Jeffords of Vermont that he would leave the Republican Party. When he did, control of the Senate flipped to Democrats.

Even if Republicans don’t lose power this way, the conditions are far from ideal for House Republicans to take advantage of being a governing party. Don’t be surprised if the next two years in the House of Representatives are more soap opera than substance.

But if the party remains in charge in the House and can assuage its right flank, its leaders should take steps to temper expectations, protect their authority and be open to working with Democrats if they hope to build a record of legislative success in what will be a challenging political environment.

Some Good News

Before elections, chop wood and carry water.

After elections, chop wood and carry water.

It's getting clearer that American democracy will live to fight another day.

But we're still in the process of dodging a bullet, and whings are looking much better than they looked a week ago, nobody should be getting happy, fat and sassy.

Here's a good news item from NYT:

(pay wall)

Voters Reject Election Deniers Running to Take Over Elections

With Jim Marchant’s defeat by Cisco Aguilar in Nevada’s secretary of state race, all but one of the “America First” slate of candidates who espoused conspiracy theories about the 2020 election were defeated.

Every election denier who sought to become the top election official in a critical battleground state lost at the polls this year, as voters roundly rejected extreme partisans who promised to restrict voting and overhaul the electoral process.

The national repudiation of this coalition reached its apex on Saturday, when Cisco Aguilar, the Democratic candidate for secretary of state in Nevada, defeated Jim Marchant, according to The Associated Press. Mr. Marchant, the Republican nominee, had helped organize a national right-wing slate of candidates under the name “America First.”

With Mr. Marchant’s loss to Mr. Aguilar, all but one of those “America First” candidates were defeated. Only Diego Morales, a Republican in deep-red Indiana, was successful, while candidates in Michigan, Arizona and New Mexico were defeated.

Their losses halted a plan by some allies of former President Donald J. Trump and other influential donors to take over the election apparatus in critical states before the 2024 presidential election. The “America First” candidates, and their explicitly partisan statements, had alarmed Democrats, independent election experts and even some Republicans, who feared that if they gained office, they could threaten the integrity of future elections.

Mr. Marchant not only repeatedly claimed that Mr. Trump had won the 2020 election, but he pledged that if he were elected, Mr. Trump would again be president in 2024.

“When my coalition of secretary of state candidates around the country get elected, we’re going to fix the whole country, and President Trump is going to be president again in 2024,” Mr. Marchant said at a rally held by the former president in October.

During the 2020 election, it was secretaries of state — both Democrats and Republicans — who stood up to efforts by Mr. Trump and his allies to overturn the results. State election officials certified vote tallies over Republican objections, protected election workers from aggressive partisan poll watchers and, in at least one case, refused a personal entreaty from the president.

The next spring, several candidates pushing the false narrative that the 2020 election had been stolen announced their intention to run to be the top election officials in critical states.

Mr. Marchant said in an interview with The New York Times in January that he had been approached by Mr. Trump’s allies to run for secretary of state and had been encouraged to organize a national slate of like-minded candidates.

He quickly cobbled together the “America First” slate, including candidates from states like Michigan, Colorado, Arizona and New Mexico. They began touring nationally, holding forums promoting election conspiracy theories, occasionally with leading members of the QAnon movement.

Suddenly, secretary of state races became premier attractions, elevating once sleepy, bureaucratic down-ballot races to the national spotlight. Donations, especially from alarmed Democrats, quickly flooded the races. Nearly $50 million was spent on television advertising in four states — Michigan, Arizona, Nevada and Minnesota — and Democrats had a 10 to 1 spending advantage.

The Democratic Association of Secretaries of State — which in 2019 had just one part-time staff member — had to be built on the fly. Jena Griswold, the secretary of state in Colorado and the chair of the association, hired seven full-time staff members and raised $25 million for the cycle.

“We really believe, and continue to believe, that these races have a tremendous effect on whether this country will continue to have a vibrant democracy,” Ms. Griswold said. “Or be able to have one at all.”

Polling races for secretary of state proved difficult, but concern began to grow among some Democrats as polls suggested that voters did not have democracy at the top of their list of concerns heading into the election.

But candidates like Mr. Aguilar said they heard about democracy issues daily from voters.

“People are tired of chaos,” Mr. Aguilar said in an interview. “They want stability; they want normalcy; they want somebody who’s going to be an adult and make decisions that are fair, transparent, and in the best interest of all Nevadans.”

Mr. Aguilar, a local businessman with deep ties to the Las Vegas business and gaming communities, announced his candidacy well before the primaries. He said that threats to fair elections weighed on him every day on the campaign trail.

“Look, it was scary,” Mr. Aguilar said. “And the burden that I carried throughout the campaign knowing that was pretty extensive.”

Some of the biggest Republican committees and candidates, however, avoided the slate of “America First” candidates. In Nevada, the Republican candidates for governor and Senate never held a rally with Mr. Marchant, and they never mentioned his name in the final few months.

The Republican State Leadership Committee, which is the arm of the Republican National Committee that oversees races for secretary of state, chose only to back Brad Raffensperger, the Republican secretary of state in Georgia who famously rebuffed Mr. Trump’s request to “find” him enough votes to overturn the state’s results in 2020.

“Secretary Raffensperger is a principled conservative dedicated to making it easier to vote and harder to cheat, and we congratulate him on his re-election,” Dee Duncan, the president of the R.S.L.C., said in a statement.

Mr. Duncan has not mentioned any of the “America First” candidates in his statements or news releases since the polls closed on Tuesday.

Fading Threat

I hope I'm not just hoping it'll be OK. I hope I'm not just thinking people will come to their senses and realize the fantasies of the MAGA rubes are unsustainable, and that they don't really want to shit-can democracy in favor of politics-by-brute-force.

I hope Americans' short attention span can be extended enough for us to see we really don't want to model our system after China or Russia, and that we really don't want the mechanism of transferring power to make us look like Afghanistan or Iraq.

Paradoxically, the passing of time puts distance between Jan6 and where we are now, and I think maybe, instead of forgetting about the unpleasantness and getting back to a comfotably numb status quo ante, more people are coming to understand that democracy is not something we have unless it's something we do, and it's a helluva lot better to get together and vote every once in a while than it is to drop bombs on each other.

The weird thing I think way too many of the MAGA gang are being deliberately blinded to is that while the US was born of bloody violent revolution, the founders immediately set about putting together a system that would prevent us from ever having to go through that shit again - we could make things more to our liking without shooting each other and burning down each other's barns, if we could just muster the courage to insist that we ourselves honor our commitment to forming that more perfect union.

(pay wall)

Opinion
Why I’ve stopped fearing America is headed for civil war

Five years ago, I began to worry about a new American civil war breaking out. Despite a recent spate of books and columns that warn such a conflict may be approaching, I am less concerned by that prospect now.

Back then, I wrote in a series of articles and online discussions for Foreign Policy that I expected to see widespread political violence accompanied by efforts in some states to undermine the authority and abilities of the federal government. At an annual lunch of national security experts in Austin, I posed the question of possible civil war and got a consensus of about a one-third chance of such a situation breaking.

Specifically, I worried that there would be a spate of assassination attempts against politicians and judges. I thought we might see courthouses and other federal buildings bombed. I also expected that in some states, right-wing organizations, heavily influenced by white nationalism, would hold conventions to discuss how to defy enforcement of federal laws they disliked, such as those dealing with voting rights. Some governors might vow to fire any state employee complying with unwanted federal orders. And I thought it likely that “nullification juries” would start cropping up, refusing to convict right-wingers committing mayhem, such as attacking election officials, no matter what evidence there was.

We still may see such catastrophes, of course. Our country remains deeply divided. We have a Supreme Court packed with reactionaries. Many right-wingers appear comfortable with threatening violence if things don’t go their way, and a large minority of the members of Congress seems unconcerned with such talk. I continue to worry especially about political assassinations, because all that takes is one deranged person and a gun — and our country unfortunately has many of both.

And yet, for all that, I am less pessimistic than I was back then.

Oddly enough, the main things that give me hope arise from former president Donald Trump’s attack on the electoral process, culminating in the Jan. 6 assault on the Capitol. At the time I feared that the unprecedented insurrection was the beginning of a sustained war on American democracy.

Yet nothing much happened. Rather, with the executive branch crippled and the legislative branch divided, the judicial branch of the federal government held the line. Again and again, both federal and state courts rejected claims of election fraud. Now those who alleged fraud without substantial evidence are themselves being investigated. Hundreds of people who invaded the Capitol, attacked police and threatened lawmakers were tracked down and charged with crimes. It was as if the American system had been subjected to a stress test and, albeit a bit wobbly, passed.

Moreover, the Capitol invaders turned out to lack the courage of their convictions. Having broken the law, they shied away from the consequences. Unlike the civil rights activists of the 1960s, they did not proudly march into jails, certain of the rightness of their cause, eager to use the moment to explain what they had done and why. They lacked the essentials that gave the civil rights movement and others sustainability: training, discipline and a strategy for the long term.

More recently, the House select committee examining how Jan. 6 came to pass has established a factual record that cannot be denied. While unfortunately not truly bipartisan, it also shows part of the legislative branch of the federal government finally awakening and responding to the attack that branch suffered. The Justice Department’s slow but steady pursuit of Jan. 6 perpetrators “at any level” targets those who thought they could speak or act without repercussions. And the American people are paying attention. A recent NBC News poll found that “threats to democracy” topped the list of pressing issues facing the nation.

Yes, we still have a long way to go. There are no signs of a national reconciliation in the offing. Some Trump followers no doubt will be elected to Congress and to state offices this fall, and control of both houses of Congress is uncertain.

But it is beginning to feel to me like the wave of hard right — not “conservative” — reaction has crested. As we saw in the recent vote in Kansas, the Supreme Court’s ruling against abortion has awakened many women, and some men, to the dangers of letting that court go wildly out of step with the American people.

In addition, the events of the past few years, most notably the pandemic and some natural disasters, have reminded many Americans that there is a place for good and effective government, especially in providing the basic societal needs of public health, public safety, air and water quality, and roads and other forms of transportation. That revived appreciation is one more reason I think the danger of civil war is receding.

So, while the patient is not yet healthy, I see some signs that the fever is breaking and the prognosis is improving.

That Cheney Ad

I'd make common cause with Beelzebub if it took Trump down, and blew a big whole in MAGA world.

Here's the previous title-holder of America's Biggest Threat To It's own Democracy:

Today's Beau

Justin King - Beau Of The Fifth Column

Time is a river, and there's always more than one current for history to follow.

That Crazy Democracy Thing

Justin King - Beau Of The Fifth Column

"The Republican Party has become filled with people who share ideologies with strong men authoritarian goons all over the world."

Just now 63 House republicans - nearly one-third of the entire gop caucus - voted against support for NATO “as an alliance founded on democratic principles.” The gop truly is Putin’s Party. pic.twitter.com/iCWHUK7wq7

— Bill Pascrell, Jr. 🇺🇸🇺🇦 (@BillPascrell) April 5, 2022

And of course, my Rep - Bob Good - voted against it.

 

A Life Of Its Own

When you're doing the good work of democracy and civil rights etc, and you've gained a following which kinda turns into a movement, there's something gratifying and reassuring about how the thing could become self-sustaining, and go on without the need for your own personal involvement. It's pointed in the right direction - equal rights and the expansion of democratic principles within democrat institutions.

'S'all good.

When you're doing the work on the other side - anti-democracy - and the groups of shitty-thing-doers start to show signs of taking on a life of their own, defying your attempts to bend them to your will so they'll turn in service to your own ambitions - that's always a big fuckin' problem.

It's like these idiots never saw Disney's Fantasia.

Amanpour & Company on CNN - Michel Martin interviews Mike Giglio of The Intercept.

Overheard

Fact:

Voter fraud is exceedingly rare.

Fact:

More than 1 in 5 members of Congress voted to overturn the results of the presidential election of 2020, but not their own.

Let's be clear about what - and who - threatens American democracy.

Today's Beau

Justin King - Beau Of The Fifth Column

Always remember DumFux News is not on our side.

A Glimmer

It can be hard for me not to stick with a notion I expressed 10 or 15 years ago one night out drinking with my buds.

"This country's damned near dead, and all we're doing is wrangling over who gets to do what with the corpse once it tips into the abyss."

But when I watch and listen, I can pick up a few signals - inadvertent or otherwise - from the people out there in cyberspace, which seem to be kinda hopeful.

To wit:

There's something oddly hopeful in speaking about "going down in history".

If we're to have any chance to look back at this chapter of our history, and see the Trump family for the shit-birds they are, then we have to be thinking democracy will win and we'll still be here - or our kids will be, or their kids.

Sometimes, all it takes is a glimmer.