Democracy in reverse: voter suppression rolls on

Gordon L. Weil

Once upon a time, giant airplanes landed on an isolated and poor Pacific island, bringing wondrous gifts, yielding the Cargo Cult.

Suddenly, during World War II, the American military arrived. A landing field was quickly laid out and aircraft flew in clothing and food the islanders had never seen.  The cargo was military, but the islanders were also rewarded.  The gifts transformed their lives, but only temporarily.  As suddenly they had arrived, the Americans left.

·         The islanders believed that their visitors from the sky might return with more gifts.  To encourage their return, the islanders built a runway, stationed a man in a hut beside it to guide the incoming flights, gave him a wooden headset that looked like the real thing and deployed a bamboo antenna.

Though the islanders wanted to believe that the cargo had been a celestial gift, there was no evidence of heavenly benevolence. With the end of the Pacific war, no plane ever came.  The hopeful Cargo Cult survived, but its hopes were always disappointed. 

In 2020, some Trump supporters claimed the election was rigged and their candidate had really won.  But they had no evidence, only their own optimistic belief.   Just like the islanders, even without evidence to support their belief, the Trump people persisted and became a cult.

But the true believers are not on a remote island, keeping their cult in isolation.  They live in the heart of the American political system and their beliefs drive them to seek to influence that system. 

Part of the reason for the survival of their belief in the stolen election is momentum.  You can start from believing that Trump is so great that logically he simply could not have lost.  Whether the ritual chant is “Build the Wall” or “Stop the Steal,” it keeps the momentum going.

But a cult’s belief in Donald Trump as a political savior only partly explains the stolen election movement and concerns about balloting.  The underlying driver is the Republican Party that can use the cult as cover for its own long-term efforts to skew elections.

The GOP operates on the strategy that reducing the size of the electorate brings it victory.  Fewer people say they are Republicans than those who are Democrats.  The Republicans are thought to be more likely to make the effort to vote, so the GOP priority can become voter suppression of typical Democratic backers rather than their own get-out-the-vote success.

In 2020, the strategy failed and, while Trump did well, Biden did better, getting more votes than any previous presidential candidate.  The Trump campaign with the help of many GOP leaders claimed in key states that voting results had been falsified.  But they could find no evidence.

The most classic failure occurred in Georgia, where a Republican secretary of state supervises elections. Though a Trump voter, he found no evidence that Trump had defeated Biden.  He resisted direct pressure from Trump to change the outcome.

The GOP has found ways to boost its chances.  Where it controls a state legislature, it lays out congressional districts to favor Republicans.  In 2020, Ohio gave Democrat Biden 45 percent of the vote but Democrats won only four of 16 districts.  This year, the Democrats have a clear path to only two seats.

African-Americans and other minorities are targeted.  Easier access to voting and reasonable registration requirements have brought out more minority voters.  When access is made more difficult, their participation is expected to suffer.

The GOP tries to limit mail-in voting, a way to make access easier that aids Democratic voters.  By making it more difficult, Republicans seem to believe that their backers will go to the polls while Democrats won’t make the effort.

Another move by Republican state legislatures is to enact laws giving their party members complete control over election administration.  Georgia has given its secretary of state such powers. 

The risk is that such officials will use their expanded powers to disallow and prevent Democratic voters from casting ballots or being counted.  Still, some GOP candidates are already claiming that if they lose, the election may have been fixed. 

They may justify distorting the election system, in the belief, with little or no evidence, that the other side has also done it.  That’s called “whataboutism.”

This year, the conduct of elections could again end up in court.  This time it would be Democrats not Republicans bringing the complaints.  What would happen if courts overturned House elections is not known.  It is obvious, though, that faith in elections, already battered by the 2020 Trump campaign and candidate, would suffer.

The leading issues in the upcoming elections may be inflation and abortion.  But perhaps the most important issue won’t appear on any ballot or be obvious to many voters – voting in our democracy.

Is the sticker that reads “I voted” in danger of becoming a rare collectible?

  

Who defines your rights? Congress, courts or states?

Gordon L. Weil

Maine Sen. Susan Collins is a leading Republican sponsor of a U.S. Senate bill to ensure a federal right to same-sex marriage.

Sen. Lindsay Graham, a South Carolina Republican, proposes a bill to impose a national limit on abortion rights.  His move would limit a right as opposed to Collins’ effort to protect a right.

There’s more to both proposals than meets the eye.  They are part of a major conflict over what individual rights are protected under the U.S. Constitution.

Justice Clarence Thomas launched the conflict when the Supreme Court overruled Roe v. Wade, ending federal protection of abortion rights.  He served notice that the abortion decision could lead to the Court reversing other decisions on rights and leaving such decisions to Congress or the states.   The Collins and Graham bills respond to the threat he raised.

The Bill of Rights includes individual rights that cannot be overridden by government.  People also have other rights beyond these few.  Who decides what rights receive federal protection?

The issue boils down to the meaning of the Fourteenth Amendment of the Constitution, which says that states cannot “deprive any person of life, liberty or property, without due process of law.”  The Court has used it to protect a wide range of rights.  Abortion was considered a constitutionally protected right until Roe was overruled.

Does “due process” only give the Court the authority to ensure a fair procedure exists to protect rights or does it tell the Court also to define the rights receiving such protection?

The Court has used due process to find rights to safe workplace conditions, contraception, homosexuality and interracial marriage.  Thomas and Justice Samuel Alito, author of the Roe reversal decision, say that legislatures not courts should decide on rights, because due process is only about procedure.  

The Roe reversal moves toward deciding that, if Congress has not acted and due process is only procedural, then the determination of rights belongs to the states. 

Same-sex marriage has been found by the Court to be a right protected under the Fourteenth Amendment, just as abortion was.  What worries Collins and her co-sponsors is the possible reversal of that right by the Court, just as abortion was.

Taking the warning from Alito and Thomas seriously, they want Congress to pass a law saying that same-sex marriage is protected.  Then, the Court could keep its hands off.

The House of Representatives, under the Democrats, will go along with the proposal. The Senate needs 60 votes to end debate before a final vote.  With 50 senators affiliated with the Democrats, Collins needs nine more Republicans. It will take more time to line them all up, so the vote won’t be held until after the November elections.

Why can’t Collins find nine Republicans?  Some may not want to take a stand either way while they are up for re-election.  After the elections but before the new Congress is seated, they can then vote on the bill. She says, “This bill is going to pass.”  That remains to be seen.

Whatever passes is almost sure to offer less protection than the Court decision.  To pick up the remaining GOP votes, the sponsors will have to accept some legislated limits on same-sex marriage.  In effect, the right could turn out to be safer, but less broad.  The law would replace the Court decision.

Similarly, Graham’s bill would limit abortion rights.  The Court allowed the states to set their own rules, which could range from prohibition to a broad right, but Graham would take that kind of discretion away.  While prohibition would remain possible, states could do no more than his restrictive bill, which would set a 15-week time limit on abortions.

He knows his bill won’t pass unless the Republicans control both houses and the presidency, not possible until 2025 at the earliest.  So his ploy now is meant simply to influence who gets elected to the Senate in November.

If Graham’s move succeeds, the process of rolling back federal protection of individual rights could take off.  The Supreme Court seems primed, already having nullified a key part of the 1965 Voting Rights Act that assured African-Americans’ access to the polls.  Congress might have to step up to its responsibilities if the Supreme Court is bent on eliminating protected rights.

The gap between the will of the people and their government in Washington deepens.  Rights that have gained federal protection over the years have gained public support and wide acceptance.  The Alito-Thomas position would place the increasingly powerful Court, cool to rights, and the dangerously divided Congress in opposition to popular sentiment.

The Court and Congress seem not to get the message.  The same-sex marriage bill, sponsored by Collins, may serve as a limited and imperfect test of whether government will start listening to the people. 

Trump named judge; he gets special breaks

 

Note to readers:  This column also available on Substack with links.

Gordon L. Weil

Donald Trump has a friend at court. He appointed her.

U.S. District Court Judge Aileen Cannon favors the former president in the Department of Justice case about the presidential documents found in an FBI search at Mar-a-Lago, his Florida resort residence.

Former U.S. Attorney General William Barr, also a Trump appointee, has noted that it is “unprecedented for a president to take all this classified information and put it in a country club.” If so, why does the judge help Trump?

Chief Justice John Roberts has tried to assure Americans that while presidents appoint judges who share their political philosophy, the jurists are independent and non-partisan. “We do not have Obama judges or Trump judges,” he said, rebutting a comment by Trump who saw things differently.

Trump was right; Roberts’ claim simply won’t wash. The 2000 Supreme Court vote by 5-4 to make Republican George W. Bush the president over Democrat Al Gore left a lot of people believing the Court made a political, not a legal, decision. There was no judicial philosophy involved.

In this case, the judge gives Trump the breaks he seeks to derail or delay the investigation of his having kept documents, many of them secret, at his unsecured offices.

Right now, Trump faces no charges in the case. Trump, not the DOJ, gives the search big publicity. Federal agencies are conducting an investigation and have not yet determined what action, if any, should be taken, beyond recovering government documents and determining any harm to national security. But the judge now protects him in several ways.

Court nominees say they will not let their personal views influence their consideration of cases. They will “follow the law.” Just what law will a judge follow? There’s so much judge-made law available, they can choose what they will follow and ignore other applicable rulings.

To begin with, another judge in the same district court has been dealing with the FBI recovery of the presidential documents removed from Mar-a-Lago. But, when Trump made an added filing, she grabbed control of it instead of turning it over to the original judge.

Legal questions about a former president’s right to control documents are supposed to be determined by the D.C. federal district court, as Cannon acknowledged but ignored. Sharing his distrust of the FBI, she accepted Trump’s demand for a special master to screen the documents before the investigation continued.

Trump kept presidential papers, claiming they are his and frustrating Justice Department efforts to recover them. There’s a law clearly stating that most of them are government property. Cannon could have ruled that at least certain documents, especially those that had been classified, could not possibly be Trump’s property. She didn’t.

Judges can range even more widely. Under certain circumstances, a judge alone, without a jury, decides what needs to be done to put matters right and may decide differently from a narrower legal ruling. That’s called “equity.” And who decides the rules of equity? Judges, usually.

She has chosen to decide on the basis of equity, because Trump’s reputation would suffer if federal prosecutors had him indicted on the basis of documents that turned out not to be acceptable evidence. She uses a non-binding opinion of Supreme Court Justice Brett Kavanaugh, also a Trump appointee, to support her position.

She focuses on the embarrassment that a person suffers when wrongly indicted and finds that the damage would be much worse for a former president. In his filings, Trump claims he is the front-runner for the GOP nomination and the general election in 2024. He sees the case as an attempt to undermine his chances.

But the right to challenge evidence backing up an indictment comes only after the indictment, not before it. Trump has not been indicted. Because he’s a former president, he is receiving protection not available to average citizens.

These factors matter in this case, because they permeate Cannon’s decisions. In simple terms, the judge accords Trump special treatment in her court. And says so.

For the time being, Cannon has blocked the investigation. That’s just what Trump wants. His lawyers say it would take the special master three months to complete their review. That would delay the investigation and any resolution of the case beyond the mid-term elections, thus reducing their effect on Trump’s attempt to influence congressional races.

Unless the law gives a former president special rights, they enjoy no better treatment than the average citizen, which is just what they are. In this case, a judge he appointed is making unusual decisions giving Trump favorable treatment.

Perhaps we should have confidence that the process will ultimately yield the just result. But the judge’s bias appears to add to the already declining respect for the courts. This cannot be healthy for the American system of government.