Democracy – Sheila Kennedy

A Chilling, Albeit Correct, Diagnosis

I don’t know who Thomas Zimmer is, nor do I recall how I came to read his February 8th “Democracy Americana” newsletter.
It’s likely some reader shared it after one of my periodic rants about racism and MAGA’s takeover of the GOP, but that’s just a guess. The headline and subhead are pretty clear indications of the subject-matter: “Domination or Dissolution, Rule or Ruin: The Right is fantasizing about secession, ‘national divorce’ and civil war–because they will not, under any circumstances, accept pluralism.”

The article began by focusing on the Texas border standoff, and the growing divide between Red and Blue states.

The Right loves to talk about secession and civil war. And quite a lot of people on the center and on the Left seem to have come to the conclusion that “blue” America would indeed be better off if we severed all ties with “red” states and unburdened ourselves from the reactionaries who are evidently not on board with the idea of egalitarian multiracial pluralism. I get all the frustration and exasperation. But would you feel comfortable making this argument – let them go do their own thing! – to the tens of millions of people who happen to live in those Republican-led states, who want nothing to do with the reactionary project, but would suffer most under authoritarian white Christian patriarchal rule?

There really aren’t that many hard-core secessionists. Zimmer pointed to the much-hyped (at least on the Right) “Take Our Border Back” trucker convoy. Organizers of what they dubbed “God’s Army” predicted the participation of 700,000 trucks. They got about 100– “A sad, paltry contingent of hardcore MAGAs and White Christian nationalists. It’s hard sometimes not to dismiss the rightwing threat to democracy as just silly, pathetic cosplay from a bunch of grifters, buffoons, and lost souls.”

The situation is quite a bit more serious than that, unfortunately. Not only is there simply no guarantee that grifters and buffoons can’t bring down democratic self-government. The trucker convoy fiasco also doesn’t change the fact that the border standoff is acting as a catalyst for the pervasive lusting for civil war and ubiquitous fantasizing about secession on the Right. This isn’t confined to extremist online fringes either. South Dakota Governor Kristi Noem, for instance, fabulated we would “have a war on our hands” were president Biden to federalize National Guard troops. Kevin Stitt, the Republican Governor of Oklahoma, argued that the Texas National Guard was merely “protecting their homeland” from the federal government. And Representative Clay Higgins posted on Ex-Twitter that “the feds are staging a civil war, and Texas should stand their ground.” These aren’t just outlier voices. Texas, with the explicit support from 25 Republican governors, is deploying precisely the argument slave states used to justify secession.

Zimmer delves into the history of the Civil War, and provides a great deal of context for the situation we face, but the essential point he makes is one that I have reluctantly concluded is at the very foundation of America’s current polarization: significant parts of the political Right steadfastly refuse to accept what he delicately calls “multiracial pluralism.”

In short, they’re committed racists.

At its base, the Rightwing populism that has largely displaced conventional conservatism is a creation of what Zimmer calls “a reactionary counter-revolution” by aggrieved defenders of “real America” against nefarious “woke, globalist elites.” One example he cites is the White Power movement of the early 1980s. Members embraced the ideas outlined in the “Turner Diaries,” a neo-Nazi novel published in 1978 that has served as a central reference point for the extreme Right ever since.

In the book, a small group of dedicated white supremacists manages to bring down the federal government and, ultimately, over the span of a little more than a century, restore white domination not only in America, but across the globe. Such ideas, as historian Kathleen Belew has emphasized, have influenced the tactics of fascistic militias like the Proud Boys that led the charge on January 6. And the white supremacists who regard the future depicted in the “Turner Diaries” not as a dystopian nightmare, but as an aspiration, have moved much closer to the center of conservative politics: On January 6, they stormed the Capitol literally in service of the man who is still, three years later, the leader of the Republican Party.

Zimmer provides a number of other examples, and the (lengthy) essay is worth reading in its entirety. I came away from it convinced of his central point: in November’s elections, both federal and down-ballot, too many voters will still be fighting America’s Civil War.

November’s elections will pit MAGA’s White Christian Nationalists against Americans who support pluralism, inclusion and the American ideal of civic equality. Pretty much everything else is window-dressing.

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One More Time

There are numerous reasons to vote straight Blue this November. But forgive me for returning to my argument that reproductive rights tops them all, and not just because women deserve the same bodily autonomy as men.

In a very real sense, Justice Alito threw down the gauntlet in Dobbs. That decision didn’t just eliminate a constitutional right that American jurisprudence had recognized for fifty years–it dealt a potentially fatal blow to the philosophy upon which our entire constitutional edifice rests.

Before I (once again) explain why that assertion is not hyperbole, let me connect the dots between Dobbs and the recent, blatantly theocratic decision from Alabama equating a frozen embryo with a living, breathing child. As Jamelle Bouie recently wrote in the New York Times, key parts of the Republican coalition demand fetal personhood.

There’s no question that the Alabama decision would not have been possible without the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which revoked the constitutional right to an abortion. In doing so, the court gave states and state courts wide leeway to restrict the bodily autonomy and reproductive freedom of Americans, in the name of protecting life.

That the Dobbs decision would threaten I.V.F. was obvious from the moment the Supreme Court released its opinion in June 2022. That’s why, toward the end of 2022, Senate Democrats introduced a bill to protect the right to use in vitro fertilization. It did not come up for a vote.

Bouie points out that the Justices who delivered Dobbs were placed on the Court as part of an explicit transaction in which Trump traded American women’s rights for the support of Evangelical voters.

What’s important, for thinking about a second Trump presidency, is that fetal personhood is the next battlefield in the anti-abortion movement’s war on reproductive rights, and conservative evangelicals are among those groups waving the standard. As one such activist, Jason Rapert of the National Association of Christian Lawmakers, told The New York Times regarding the Alabama court decision, “It further affirms that life begins at conception.”

At least 11 states, The Washington Post notes, have “broadly defined personhood as beginning at fertilization in their state laws.”

It does not matter whether Trump rhetorically supports access to I.V.F. treatments. What matters is whether he would buck the priorities of his most steadfast supporters and veto a bill establishing fetal personhood across the United States.

As we all know, he would not.

A Republican win in November would guarantee further erosion of reproductive rights– but as I have repeatedly argued, it would do far more than that.

Dobbs was a frontal attack on the doctrine of substantive due process, often called the “right to privacy.” That doctrine confirmed the American principle that certain “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception– are none of government’s business.

Constitutional scholars argue that the right to personal autonomy has always been inherent in the Bill of Rights, but it was explicitly recognized in 1965, in Griswold v. Connecticut. Connecticut’s legislature had passed a law prohibiting the use of birth control by married couples. The law prohibited doctors from prescribing contraceptives and pharmacists from filling those prescriptions.The Supreme Court struck down the law, holding that whether a couple used contraceptives was not a decision government is entitled to make.

The majority recognized that recognition of a right to personal autonomy—the right to self-government—is essential to the enforcement of other provisions of the Bill of Rights. Justices White and Harlan found explicit confirmation of it in the due process clause of the Fourteenth Amendment—which is where the terminology “substantive due process” comes from. Wherever it resided–in a “penumbra” or the 14th Amendment—the Justices agreed on both its presence and importance.

The doctrine of Substantive Due Process draws a line between decisions that government has the legitimate authority to make, and decisions which, in our system, must be left up to the individual. I used to tell my students that the Bill of Rights is essentially a list of things that government is forbidden to decide. What books you read, what opinions you form, what prayers you say (or don’t)—such matters are outside the legitimate role of government. The issue isn’t whether that book is dangerous or inappropriate, or that religion is false, or whether you should marry someone of the same sex, or whether you should procreate: the issue in America is who gets to make that decision.

Enabling autocracy–destroying our current system of democratic majorities restrained by the Bill of Rights– requires eliminating substantive due process. Dobbs thus opened a pathway to an enormous expansion of government power.

Outlawing IVF is just a way station…..

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When People Tell You Who They Are, Believe Them

There is a famous Maya Angelou quote: “When people show you who they are, believe them.”

Voters unwilling to recognize that American democracy will be on the ballot in the upcoming election will need to ignore or reject what the proponents of theocracy and autocracy are willingly telling us.

Heather Cox Richardson recently reported on the candor of a speech at this year’s CPAC convention.

How religion and authoritarianism have come together in modern America was on display Thursday, when right-wing activist Jack Posobiec opened this weekend’s conference of the Conservative Political Action Conference (CPAC) outside Washington, D.C., with the words: “Welcome to the end of democracy. We are here to overthrow it completely. We didn’t get all the way there on January 6, but we will endeavor to get rid of it and replace it with this right here.” He held up a cross necklace and continued: “After we burn that swamp to the ground, we will establish the new American republic on its ashes, and our first order of business will be righteous retribution for those who betrayed America.”

If there was any doubt that today’s Republican Party has rejected the (small-d) democratic basis of America’s republic, the party’s unrelenting attacks on reproductive rights should be convincing evidence. Not satisfied with Dobbs‘ erasure of the constitutional right to abortion, the party’s theocratic base is now gunning for birth control. The recent Alabama decision that effectively outlawed IVF rested on a state law conferring “personhood” on fertilized eggs. Since Dobbs, sixteen state legislatures have introduced such laws, and four Red states—Missouri, Georgia, Alabama, and Arizona–have passed them.

The cranks and Christian Nationalists who dominate the party in the House of Representatives introduced a national personhood bill immediately after they took control in January 2023. Republicans in the Senate were already on board; Rand Paul had introduced a “Life at Conception Act” on January 28, 2021. Richardson tells us it currently has 18 co-sponsors, including the head of the National Republican Senatorial Committee. These lawmakers surely know that these measures are opposed by huge majorities of the voting public; a party that valued either democratic representation or constitutional compliance would not be intent upon passing them.

There are multiple other examples: members of the GOP have demonstrated their willingness to accept and promote Russian disinformation, and to take Putin’s side against Ukraine– behavior inconsistent with the majority’s desire to help Ukraine fend off Russian aggression. And the GOP’s embrace of gerrymandering is also entirely consistent with its devotion to the “end of democracy.” Gerrymandering, after all, is an effort to evade democratic accountability.

If these examples aren’t sufficient, there’s the “show and tell” from Trump himself. As Axios (among others) has reported, in an introduction to a series on the effort,

Former President Trump’s top allies are preparing to radically reshape the federal government if he is re-elected, purging potentially thousands of civil servants and filling career posts with loyalists to him and his “America First” ideology, people involved in the discussions tell Axios.

The impact could go well beyond typical conservative targets such as the Environmental Protection Agency and the Internal Revenue Service. Trump allies are working on plans that would potentially strip layers at the Justice Department — including the FBI, and reaching into national security, intelligence, the State Department and the Pentagon, sources close to the former president say.

During his presidency, Trump often complained about what he called “the deep state.”

The heart of the plan is derived from an executive order known as “Schedule F,” developed and refined in secret over most of the second half of Trump’s term and launched 13 days before the 2020 election.

The reporting for this series draws on extensive interviews over a period of more than three months with more than two dozen people close to the former president, and others who have firsthand knowledge of the work underway to prepare for a potential second term. Most spoke on condition of anonymity to describe sensitive planning and avoid Trump’s ire.

People voting in November can’t say they weren’t warned.

The Republican Party of today is Trump’s party, and multiple sources are plainly and forcefully telling us who they are. It is not an exaggeration to say that the fate of America going forward rests on enough voters’ listening to them and understanding what they are saying.

Accept Maya Angelou’s advice. Believe them.

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If Only…

There are so many reasons to vote straight Blue this November: to keep a dangerously insane man out of the Oval Office, to remove the “God Squad” from the House and Senate, to protect democracy and Separation of Church and State…and especially, to send an emphatic message that women will not meekly return to second-class citizenship.

You can undoubtedly come up with other reasons as well. But a bill just filed by the Democrats in the U.S. Senate may be the most important, because its passage would go a very long way to accomplishing several of those goals–and it won’t pass unless Democrats sweep the November election.

Per The Democracy Docket:

Earlier this month, U.S. Sens. Amy Klobuchar (D-Minn.) and Laphonza Butler (D-Calif.) introduced the Redistricting Reform Act of 2024, legislation that would make a slew of impactful changes to the congressional redistricting process nationwide.

The bill would set spell out comprehensive criteria for congressional redistricting including:

Banning partisan gerrymandering by prohibiting drawing maps that favor or disfavor any political party,

Ensuring compliance with the Voting Rights Act of 1965,

Providing an explicit right for private citizens to file legal challenges under this law,

Requiring that districts be drawn to represent communities of interest and neighborhoods to the extent possible,

Barring people, legislatures and states from asserting legislative privilege over lawsuits brought under the act,

Setting clear deadlines for when maps must be enacted and

Mandating that redistricting plans are subject to public comment in an open and transparent manner

Gerrymandering is the root of America’s current dysfunctions. When lawmakers can choose their voters rather than the other way around, we end up being ruled by a minority.

Gerrymandering–aka partisan redistricting–does more than skew election results. A lot more. And much of it goes unrecognized. Here in Indiana, for example, where partisan redistricting has carved up metropolitan areas and subordinated them to rural ones, gerrymandering has given us distribution formulas favoring rural areas over cities when divvying up dollars for roads and schools, among other inequities.

Even before the Dobbs decision, The Guardian connected gerrymandering to passage of radical abortion laws.

Georgia’s legislature responded to the state’s closely divided political climate not with thoughtful compromise but by passing one of the most restrictive abortion bans in the United States.

An April poll by the Atlanta Journal-Constitution found that 70% of Georgians support the landmark Roe v Wade decision that legalized abortion. The new state ban is opposed by 48% of Georgians and supported by only 43%. So why would the legislature enact such an extreme measure?

For that matter, why would Ohio, Alabama, Missouri and other states establish similar “fetal heartbeat” laws that are far more restrictive than their constituents support?

One important answer is gerrymandering: redistricting voting districts to give the party in power an edge – making it almost impossible for the other side to win a majority of seats, even with a majority of votes. Sophisticated geo-mapping software and voluminous voter data turned this ancient art into a hi-tech science when the US redistricted after the 2010 census.

Partisan redistricting is undemocratic no matter which party is doing it, but give credit where it’s due: the GOP has been far more adept at gerrymandering than the Democrats (probably because Republicans recognize that they are increasingly a minority party and must cheat in order to win). As the Guardian reported, gerrymandering has allowed the GOP to control state legislatures with supermajorities even when voters prefer Democratic candidates by hundreds of thousands of votes.

Gerrymandering nullifies elections and insulates lawmakers from democratic accountability.

Despite lacking any mandate for an extreme agenda in a closely divided nation, Republican lawmakers have pushed through new voting restrictions, anti-labor laws, the emergency manager bill that led to poisoned water in Flint, Michigan, and now, these strict abortion bans. Electorally, there’s little that Democrats can do to stop it.

In Ohio, the article pointed to “zero evidence” that voters held extreme opinions on abortion, and noted that polls showed more voters opposed to that state’s “heartbeat” bill than supportive of it. A University of Chicago study showed that barely half the total vote in Ohio gave Republicans more than 63% of the seats– simply because the maps were “surgically designed” to ensure that few seats would be competitive.

I have frequently posted about the multiple negative consequences of gerrymandering: among other things, it empowers extremists (as “real” elections move to the primaries) and suppresses the vote.

In non-referendum states like Indiana, the only way to get rid of gerrymandering would be via a U.S. Supreme Court decision or a federal law. The Court has repeatedly declined to act, so we need a Democratic win in November big enough to ensure passage of the Redistricting Reform Act.

That would go a long way toward protecting democracy–and women.

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The Right To Vote

File under “They aren’t even pretending.”

Indiana’s deplorable legislature is in session (you can tell by the number of us cringing during news reports), and the outnumbered Democrats are battling attacks on Indianapolis, on public education, and on voting.

Democratic Representative Carrie Hamilton introduced a bill that would extend Indiana’s shortest-in-the-nation voting hours. The bill would allow voters to cast ballots until 8:00 p.m. rather than the current cut-off at 6:00, as is currently the case in most states. Rather obviously, a 6:00 p.m. cutoff primarily disadvantages lower-income workers who lack the flexibility of professionals and business executives.

Our legislative overlords–the GOP super-majority–immediately nixed Hamilton’s effort. Presumably, they’re worried that extending the time to vote would increase the turnout of “those people” who– they worry– tend to vote Democratic.

Making it difficult for certain people to vote has become a favorite Republican suppression tactic, along with the party’s ongoing commitment to gerrymandering.

Readers of this blog know me to be a vigorous defender of the U.S. Constitution, but it is impossible to overlook several provisions of that document that have become obsolete (i.e. the Electoral College) or others that are missing from it. Election expert Richard Hasan outlined one of the most important of those omitted provisions in a recent column for the New York Times.

The history of voting in the United States shows the high cost of living with an old Constitution, unevenly enforced by a reluctant Supreme Court.

Unlike the constitutions of many other advanced democracies, the U.S. Constitution contains no affirmative right to vote. We have nothing like Section 3 of the Canadian Charter of Rights and Freedoms, providing that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein,” or like Article 38 of the Basic Law of the Federal Republic of Germany, which provides that when it comes to election of the Bundestag, “any person who has attained the age of 18 shall be entitled to vote.”

As we enter yet another fraught election season, it’s easy to miss that many problems we have with voting and elections in the United States can be traced to this fundamental constitutional defect. Our problems are only going to get worse until we get constitutional change.

Hasen pointed out that most expansions of voting rights in the United States are the result of constitutional amendments and congressional action. The Courts have routinely reiterated that the the Constitution doesn’t contain any guarantees of the right to vote for President (see Bush v. Gore, in which the Court also ruled that states may take back the power to appoint presidential electors directly in future elections.)

As most lawyers know, and as Hasen points to

the only period in the 235-year history of the Supreme Court when it was hospitable to broad constitutional voting rights claims. The court, under Chief Justice Earl Warren, saw a broad expansion of voting rights in the 1960s, thanks mainly to its capacious reading of the equal protection clause.

Hasen’s column provides several examples of the Court’s reluctance to find a right to cast a ballot, and it is one more gloomy element to assess in what is shaping up to be an election deciding the fate of American democracy.

He then turns to state-level efforts to restrict voting.

Often, voting restrictions are an effort to shape the universe of those who vote. Although both parties have played this game over time, today it is mostly Republican-led states that seek to limit the franchise, out of a belief that lower turnout, especially among those they expect to vote for Democrats, helps Republicans.

Finally, Hasen points to three reasons to pass a constitutional amendment confirming a positive right to vote: it would prevent states from limiting the franchise and erecting barriers intended to prevent voting by eligible voters, like onerous residency requirements or strict voter identification laws; it would diminish the current explosion of election litigation–which has nearly tripled since 2000;. and it “would moot any attempt to get state legislatures to override the voters’ choice for president through the appointment of alternative slates of electors, as Donald Trump and his allies tried to do after the 2020 election.”

Rules that guarantee not only the right to vote but also the right to have that vote fairly and accurately counted would provide a basis for going after election officials who sought to disrupt the integrity of election systems. Leaks of voting system software or an administrator’s lack of transparency in counting ballots could become constitutional violations.

In many ways, our Constitution is a marvelous document, but the addition of an affirmative right to vote would definitely improve it.

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