The Daily Parker

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Partisan court takes another swipe at the Voting Rights Act

The two most recent US Supreme Court appointees may have agreed with the moderate justices on a couple of issues this term, but as the last opinions come out this morning, they have reminded us that the Republican Party's anti-democratic policies remain their top priorities.

Despite no evidence of retail election fraud, in 2016 Arizona's Republican majority enacted a law making it a crime to collect ballots from voters. Many voters in Arizona and elsewhere have difficulty making it to the polls, and in some cases, to the nearest mailbox. Ballot collection drives helped ensure they could still cast votes. Given who benefitted most from these drives, no one had any illusions about why Arizona Republicans passed this bill.

The Court today ruled, in a 6-3 decision right along party lines, that this does not violate section 2 of the Voting Rights Act. Justice Alito delivered the opinion, which repeats the Republican Party's canards about voting fraud as if channeling the voice of Mitch McConnell:

Finally, the strength of the state interests served by a challenged voting rule is also an important factor that must be taken into account. As noted, every voting rule imposes a burden of some sort, and therefore, in determining “based on the totality of circumstances” whether a rule goes too far, it is important to consider the reason for the rule. Rules that are supported by strong state interests are less likely to violate §2.

One strong and entirely legitimate state interest is the prevention of fraud. Fraud can affect the outcome of a close election, and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight. Fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome.

(Brnovich v DNC, opinion at 19; citations removed.)

He then retreats deep into his epistemological bubble to declare that, even though Arizona has no documented instances of such fraud, and even though it will make it harder for Black, Hispanic, and poor people to cast ballots, the law doesn't really discriminate. Because, of course, the Arizona Secretary of State's office are all, all honourable men:

The State makes accurate precinct information available to all voters. When precincts or polling places are altered between elections, each registered voter is sent a notice showing the voter’s new polling place. Arizona law also mandates that election officials send a sample ballot to each household that includes a registered voter who has not opted to be placed on the permanent early voter list, and this mailing also identifies the voter’s proper polling location. In addition, the Arizona secretary of state’s office sends voters pamphlets that include information (in both English and Spanish) about how to identify their assigned precinct.

The Court of Appeals noted that Arizona leads other States in the rate of votes rejected on the ground that they were cast in the wrong precinct, and the court attributed this to frequent changes in polling locations, confusing placement of polling places, and high levels of residential mobility. But even if it is marginally harder for Arizona voters to find their assigned polling places, the State offers other easy ways to vote. Any voter can request an early ballot without excuse. Any voter can ask to be placed on the permanent early voter list so that an early ballot will be mailed automatically. Voters may drop off their early ballots at any polling place, even one to which they are not assigned. And for nearly a month before election day, any voter can vote in person at an early voting location in his or her county.

(Id. at 26-27, citations removed.)

So, once again, the Republican justices take the position that because the Voting Rights Act has done its job over the years, we don't need the Voting Rights Act anymore. (Kind of like how we taught the Germans a lesson in 1918 and they hardly bothered us after that.)

In her dissent, Justice Kagan expresses no patience for any of this crap:

If a single statute represents the best of America, it is the Voting Rights Act. It marries two great ideals: democracy and racial equality. And it dedicates our country to carrying them out. Section 2, the provision at issue here, guarantees that members of every racial group will have equal voting opportunities. Citizens of every race will have the same shot to participate in the political process and to elect representatives of their choice. They will all own our democracy together—no one more and no one less than any other.

If a single statute reminds us of the worst of America, it is the Voting Rights Act. Because it was—and remains—so necessary. Because a century after the Civil War was fought, at the time of the Act’s passage, the promise of political equality remained a distant dream for African American citizens. Because States and localities continually “contriv[ed] new rules,” mostly neutral on their face but discriminatory in operation, to keep minority voters from the polls. Because “Congress had reason to suppose” that States would “try similar maneuvers in the future”— “pour[ing] old poison into new bottles” to suppress minority votes. Because Congress has been proved right.

Today, the Court undermines Section 2 and the right it provides. The majority fears that the statute Congress wrote is too “radical”—that it will invalidate too many state voting laws. So the majority writes its own set of rules, limiting Section 2 from multiple directions. Wherever it can, the majority gives a cramped reading to broad language. And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters. I could say—and will in the following pages—that this is not how the Court is supposed to interpret and apply statutes. But that ordinary critique woefully undersells the problem. What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses. What is tragic is that the Court has damaged a statute designed to bring about “the end of discrimination in voting.”

(Kagan Dissent at 1, 3; citations removed).

When a few commentators tut-tutted that the Court "is less one-sided than liberals feared," they missed the point. Justices Barrett and Kavanaugh seem less unhinged than they did at their confirmation hearings, but they never lost their party loyalty. Sure, they upheld Obamacare (for the 17th time); sure, they ruled that children don't lose First Amendment protections just because they say something their school doesn't like. And just as sure, they will vote every single time to limit the franchise, because voting rights have become an existential threat to the Republican Party.

The Republicans' 40-year program of selecting and promoting young, partisan judges continues to pay off. Until we Democrats start using the political power we actually have, the Republicans will continue to drive the United States toward minority corporatist rule that will take decades to undo.

"F*** school, f*** softball, f*** cheer, f*** everything" wins with SCOTUS

Brandi Levy, a 19-year-old student from Pennsylvania, won her appeal to the US Supreme Court after being suspended from cheerleading for a year after Snapchatting the above sentiment:

She sent the message on a Saturday from the Cocoa Hut, a convenience store popular with teenagers.

Though Snapchat messages are meant to vanish not long after they are sent, another student took a screenshot and showed it to her mother, a coach. The school suspended Ms. Levy from cheerleading for a year, saying the punishment was needed to “avoid chaos” and maintain a “teamlike environment.”

Ms. Levy sued the school district, winning a sweeping victory from a divided three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia. The court said the First Amendment did not allow public schools to punish students for speech outside school grounds, relying on a precedent from a different era.

Everyone except Justice Thomas joined Justice Breyer's opinion, which held:

While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.’s interest in free expression in this case.

[T]hree features of off-campus speech often, even if not always, distinguish schools’ efforts to regulate off-campus speech. First, a school will rarely stand in loco parentis when a student speaks off campus. Second, from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy. Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.

Justice Thomas, with predictable disdain for the modern world and rational thought in general, would have applied his originalist philosophy even to Snapchat:

I would begin the assessment of the scope of free-speech rights incorporated against the States by looking to “what ‘ordinary citizens’ at the time of [the Fourteenth Amendment’s] ratification would have understood” the right to encompass. McDonald v. Chicago, 561 U. S. 742, 813 (2010) (THOMAS, J., concurring in part and concurring in judgment). Cases and treatises from that era reveal that public schools retained substantial authority to discipline students. As I have previously explained, that authority was near plenary while students were at school. See Morse v. Frederick, 551 U. S. 393, 419 (2007) (concurring opinion). Authority also extended to when students were traveling to or from school. See, e.g., Lander v. Seaver, 32 Vt. 114, 120 (1859). And, although schools had less authority after a student returned home, it was well settled that they still could discipline students for off-campus speech or conduct that had a proximate tendency to harm the school environment.

Perhaps the most familiar example applying this rule is a case where a student, after returning home from school, used “disrespectful language” against a teacher—he called the teacher “old”—“in presence of the [teacher] and of some of his fellow pupils.” Id., at 115 (emphasis deleted). The Vermont Supreme Court held that the teacher could discipline a student for this speech because the speech had “a direct and immediate tendency to injure the school, to subvert the master’s authority, and to beget disorder and insubordination.”

I left the citations in because seeing Thomas at his epistemologically-sealed best really drives home how frighteningly out of touch he is. First, he cited his own concurrences, which (a) have no force of law and (b) he wrote. Then he cited and quoted a Vermont case from 1859 that sure, I guess, has precedential value in the state of Vermont, but probably doesn't even reflect current Vermont law.

In the rest of his dissent, Thomas cites his own concurrences a couple more times, a Missouri case from 1885, an Iowa case from 1971, and another Missouri case from 1877. He really does live in the 19th Century.

So, good on Levy, and on the First Amendment, who won a clear victory with this case. But what the hell, Clarence? How much more of this originalist crap do we have to endure before you finally retire and we can appoint someone from the 21st Century to Thurgood Marshall's seat?

Relaxing weekend

Cassie and I headed up to Tyranena Brewing in Lake Mills, Wis., yesterday to hang out with family. Today, other than a trip to the grocery and adjacent pet store where Cassie picked out an "indestructible" toy that now lies in tatters on the couch, we've had a pretty relaxing Sunday. I thought I'd take a break from Hard Times to queue up some stuff to read tomorrow at lunch:

I will now return to Dickens, because it's funny and sad.

So, nu, how's by you?

After taking Cassie on a 45-minute walk before the heat hits us, I've spent the morning debugging, watching these news stories pile up for lunchtime reading:

Finally, Chicago architecture firm Skidmore, Owings & Merrill has revealed conceptual drawings for a moon base.

Because conservatives love states' rights

SDCA Senior Judge Roger Benitez, a George W Bush appointee, has ruled that California's assault-weapons ban violates the 2nd Amendment:

The state’s definition of illegal military-style rifles unlawfully deprives law-abiding Californians of weapons commonly allowed in most other states and by the U.S. Supreme Court, the judge wrote.

Judge Roger T. Benitez, who has favored pro-gun groups in past rulings, described the AR-15 rifle, used in many of the nation's deadliest mass shootings, as an ideal weapon.

"Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment," he wrote in Friday's decision.

"Yet, the State of California makes it a crime to have an AR15 type rifle," Benitez continued. "Therefore, this Court declares the California statutes to be unconstitutional."

What a novel theory: other states allow this thing, so California must also. And yet I would bet you an entire dollar that Judge Benitez would disagree with his own theory as regards, say, marijuana or abortions.

The hypocrisy of Republicans on this issue is a lot like their hypocrisy on many others: what they want, others must have; what they don't want, no one else can have. The Federal government can't tell states they have to allow abortions, but they can tell states they can't ban the causes of the biggest health crisis in America since the invention of the automobile.

Benitez' opinion opens with a lengthy argument that the AR-15, a weapon designed specifically to allow American infantry to kill lots of people as reliably and as easily as possible, really isn't as deadly as someone's hands (no, really, footnote 3 on page 3). But really, he goes on, the term "assault weapon" is too broadly defined to be useful, but even if the AR-15 is an assault rifle, "like all guns, [it] can be used for ill or for good" (at 8).

Judge Benitez does not elaborate on the good that an AR-15 can do.

Naturally his opinion quotes dissents from Thomas, Scalia, and Kavanaugh quite a bit. For non-lawyers, quoting a dissent usually signals that the judge knows he's on the wrong side of precedent, but hopes that he can create new precedent if the case goes all the way up on appeal. He also spends a lot of time on Heller, which, I'm sure even casual Daily Parker readers know, I think was wrongly decided and has caused no end of suffering all over the US.

I expect it will. The 9th Circuit Court of Appeals will probably overturn Benitez, as I would guess they have done on many previous occasions. I have little doubt that our hyper-politicized Supreme Court will grant certiorari, and if so, probably reverse the appellate court.

I'm sick of my country's gun fetish. And assholes like Judge Benitez, who proudly say "there's no way to prevent this" in the only country where this regularly happens.

One week to go

The first polls close in the US next Tuesday in Indiana at 6 pm EST (5 pm Chicago time, 22:00 UTC) and the last ones in Hawaii and Alaska at 7pm HST and 8pm AKST respectively (11 pm in Chicago, 05:00 UTC). You can count on all your pocket change that I'll be live-blogging for most of that time. I do plan actually to sleep next Tuesday, so I can't guarantee we'll know anything for certain before I pass out, but I'll give it the college try.

Meanwhile:

  • The US Senate confirmed Amy Coney Barrett to the Supreme Court last night by a vote of 52-48, with only Susan Collins (R-ME) joining the Democrats. It's the first time since Reconstruction that the Senate confirmed an Associate Justice with no votes from the opposition party. And in the history of our country, only two people have been confirmed by a smaller margin: Brett Kavanaugh and Clarence Thomas. I'm sure the three of them will continue to fight for bipartisanship and good jurisprudence as strongly as they ever have.
  • Emma Green points out "the inevitability of Amy Coney Barrett," because the Republicans don't care. And Olivia Nuzzi brings us the story of "the tortured self-justification of one very powerful Trump-loathing anonymous Republican."
  • Bill McKibben reminds us "there's nothing sacred about nine justices; a livable planet, on the other hand..."
  • Speaking of the planet, Tropical Storm Zeta became Hurricane Zeta last night. The 2020 season has now tied the all-time record for the number of named Atlantic storms set in January 2006, and it's only October.
  • Bars and restaurants in suburban Cook County have to close again tomorrow as statewide Covid-19 cases exceed 4,500 on a rolling 14-day average. Some parts of the state have seen positivity rates over 7.5% in the last couple of weeks. My favorite take-out Chinese place down by my office is also closing for the winter, which I understand but which still saddens me.
  • The Washington Post asked TV screenwriters how 2020 should end.
  • In one small bit of good news, the Food and Drug Administration has finally agreed that whisky is gluten-free, as gluten does not evaporate in the distilling process and so stays in the mash.

Finally, from a reader in Quebec comes a tip about violent clashes between a Canadian First Nation, the Mi'kmaw tribe of Nova Scotia, and local commercial fishermen over First Nations lobster rights. If you think Canada is a land without racism, well...they're just more polite about it.

The view from a rural county in Ohio

Science-fiction author John Scalzi (Red Shirts, Old Man's War) lives in Darke County, Ohio, population 52,000, 97% of them white. He does not exactly fit in with his neighbors politically, as he describes:

Four years ago in Bradford, the town where I live, there were Trump street signs, like the one in the picture above. Here in 2020, there are multiple signs per yard, and banners, and flags, not just with Trump’s name on them, but of him standing on a moving tank whilst screaming eagles fly alongside him, and no, those flags are not being flown ironically, they really mean it. There are occasional Biden signs, mostly of modest size, but anecdotally they are outnumbered by Trump signs by at least twenty to one. The 2020 Darke County Trump tank is deep and perhaps a bit frantic. If Trump is hoping for “shy voters” to suddenly spring up to take him to victory, he’s not going to get them here. Darke County Trump supporters may be many things, but shy does not appear one of them.

A whole bunch of the voters are being fed shit from social media and questionable news sources and either they don’t know it or they don’t care. It’s not an exaggeration to say that the epistemic capture in the US of (not only, but in particular) poor and working class whites by conservatives, billionaires and propagandists is one of the great social engineering success stories of the last half century. This includes an informational ecosystem that’s easy to get into and hard to get out of because it simultaneously stimulates fear and anger responses, degrades one’s own ability to reason, and breeds mistrust in outside sources and political points of view. In other words: cult conditioning.

Now, it would unfair nonsense to suggest the people of a county that hasn’t gone for a Democrat since LBJ would not be reliably voting for whomever the GOP candidate was every four years. But it’s not unfair nonsense to say that convincing a historically large percentage of these folks to vote for someone who four years ago was clearly not competent to be president, and in 2020 has a nearly four-year record of venal graft and malice, is the fruit of a decades-long effort to get into their heads and make them resistant to actual facts that are right in front of them. It’s not coincidence that QAnon is metastasizing through conservative and GOP circles at breathtaking speed; having a millions-strong corps of voters willing to lap up even that level of rank bullshit is in fact the goal.

Meanwhile, Jamelle Bouie picks apart the nonsense of "constitutional originalism," which to me seems no better than any other fundamentalist religion.

Lunchtime incompetence, history, and whisky

Someday, historians may discover what former Wisconsin governor Scott Walker—I don't have to remind you, a Republican—got in exchange for the ridiculous deal his administration made with FoxConn. After the Taiwan-based company created only a tiny fraction of the jobs it promised in exchange for billions in tax credits, the Wisconsin Economic Development Corporation has finally told them, no, you don't get all that money for nothing.

In other news:

Finally, Whisky Advocate has some recommendations for an essential whisky bar in your home.

What the Barrett nomination is really about

The Senate Republicans will force through Amy Coney Barrett's confirmation to the Supreme Court before the end of December, and there's nothing the Democratic Party can do to stop it.

OK. They win this round. But by the end of the next Congress, we can win the war.

Forget about Roe v Wade; if the Supreme Court overturns it, we can fix abortion rights with legislation. And forget about gay marriage; same deal. In fact, after the Democratic Party takes control of the legislature and executive in January, nothing should prevent us from passing a civil-rights bill to ensure all Americans continue to have access to those rights. The Republicans in the Senate know that, but they're hoping to distract you from their real agenda in stacking the Federal court system and preventing people of color from voting.

In a New York Times op-ed yesterday, author Christopher Leonard explains why Mitch McConnell wants Barrett on the court before the American people drive his caucus from power in three weeks:

Since the early 1970s, [Charles] Koch has sought to dismantle most federal regulatory institutions, and the federal courts have been central to that battle. In 1974, Mr. Koch gave a blistering speech to a libertarian think tank, called the Institute for Humane Studies, in which he outlined his vision of the American regulatory state, and the strategy he would employ over the ensuing decades to realize that vision. In short, Charles Koch believes that an unregulated free market is the only sustainable structure for human society.

To achieve his goal, Mr. Koch has built an influence network with three arms: a phalanx of lobbyists; a constellation of think tanks and university programs; and Americans For Prosperity, a grass-roots army of political activists. And shaping the U.S. judiciary has been part of Mr. Koch’s strategy from the beginning. In that 1974 speech, he recommended strategy of “strategically planned litigation” to test the regulatory authority of government agencies. Such lawsuits could make their way to the Supreme Court, where justices could set precedent. In the 1990s, he focused on lower-level judges, funding a legal institute that paid for judges to attend junkets at a Utah ski resort and Florida beachfront properties; the judges attended seminars on the importance of market forces in society and were warned against consideration of “junk science” — like specific methods to measure the effects of pollution — that plaintiffs used to prove corporate malfeasance.

As Charles Koch has written and stated so often in the past five decades, there are many, many laws and programs that he would like to negate. With the nomination of Judge Barrett to the court, he appears to be closer than ever to achieving this goal.

In other words, Senate Majority Leader Mitch McConnell's refusal to give hearings not just to Merrick Garland, but also close to 200 of President Obama's lower-court nominees, is about making rich people richer. Economist Paul Krugman explains further:

We should have had a deal in the summer, when it was already obvious that the rescue package approved in March was going to expire much too soon. But Senate Republicans were adamantly opposed to providing the necessary aid. Lindsey Graham declared that emergency unemployment benefits would be extended “over our dead bodies” (actually 215,000 other people’s dead bodies, but who’s counting?).

And McConnell — whose state benefits from far more federal spending than it pays in taxes — derided proposed aid to states as a “blue state bailout.”

Republicans didn’t worry about budget deficits when they rammed through a $2 trillion tax cut for corporations and the wealthy. They only pose as deficit hawks when trying to block spending that might help ordinary Americans.

No, what this is really about is the modern G.O.P.’s plutocratic agenda. McConnell and, as far as I can tell, every member of his caucus are completely committed to cutting taxes on the rich and aid to the poor and middle class. Other than March’s CARES Act, which Republicans passed only because they were panicking over a plunging stock market, it’s hard to think of any major G.O.P.-approved fiscal legislation in the past two decades that didn’t redistribute income upward.

You might think that Republicans would set the plutocratic imperative aside when the case for more government spending is compelling, whether it’s to repair our crumbling infrastructure or to provide relief during a pandemic. But all indications are that they believe — probably rightly — that successful government programs make the public more receptive to proposals for additional programs.

That’s why the G.O.P. has tried so frantically to overturn the Affordable Care Act; at this point it’s clear that Obamacare’s success in cutting the number of uninsured Americans has created an appetite for further health care reform.

So what can we do?

Well, first, we can win the damn election next month. The Economist has us at a 91% chance of winning the White House and a 71% chance of winning control of the Senate, but that depends on us voting and not letting Republicans steal votes. Then we have to actually govern using all the tools available to us in the Constitution, just as the Republicans have done.

Let's admit DC as a state and allow Puerto Rico to join as well if they want to. Meanwhile, we need to pass civil-rights and effective regulatory legislation, expand the Federal courts to balance ideologies on the bench, and put real safeguards in place to prevent the next Republican Senate or president from moving us closer to plutocracy through their demonstrated habit of counter-majoritarian rule.

The Republican Party blew up all the norms they expect us to follow when we regain power in January. You know what? They can gey kaker im meer, as my great-grandfather might say. They will howl and whine and cry and sue, like they always do, because no one likes not getting his way.

But we need to make it clear that we will not let their malfeasance go unpunished. Only when the Republican Party gives up its Koch-fueled, illiberal, anti-democratic policies should we attempt bipartisanship again. Let's be lawful good, not lawful stupid, and force them to act like a serious opposition party.

Evening news stories

A cold front pushed its way through Chicago this afternoon, making it feel much more like autumn than we've experienced so far. And it got pretty chilly in Washington, where Senate Republicans began the first day of hearings into the nomination of Amy Coney Barrett for the Supreme Court:

And much farther from home, Mars will be in opposition tomorrow night, coincidentally during the new moon, meaning we'll get a really good look at it.