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Let Me Count The Ways…

There are all sorts of tactics that have been employed over the years to suppress the votes of “the other guys.” Recently, those efforts have mostly come from the GOP, but historically, both parties have engaged in them–just as both parties do (and continue to) gerrymander when they control a state legislative chamber.

I’ve recently noted that the efforts to cast doubt on voting by mail are partly motivated by the fact that vote-by-mail defeats many of the time-honored ways to suppress minority votes–and provides a paper trail.

One of the least commented methods of suppressing minority votes–and one of the most effective–is felon disenfranchisement. It is widespread–a number of states forbid ex-offenders from casting ballots–and superficially, at least, it’s race-neutral. For citizens unaware of the over-incarceration of African-Americans during America’s drug war (laid out in indisputable terms by Michelle Alexander in The New Jim Crow), felon disenfranchisement is simply a lingering, perhaps overly-harsh “law and order” punishment of those who have broken the law.

Two recent court decisions–one honorable, one definitely not–make the implicit, explicit.

In North Carolina, a court struck down an effort to keep ex-offenders from casting ballots, holding that the state could not disenfranchise citizens who owe fines, fees, and other debts from a felony conviction. As the linked article about the ruling noted,

Many felon disenfranchisement rules, including North Carolina’s, are rooted in overt white supremacy. After Reconstruction, racist Democrats in the state sought to revoke Black citizens’ suffrage. They accomplished this task, in part, through vague criminal laws that stripped convicted felons of their civil rights—then enforced these laws disproportionately against Black people. North Carolina’s current statute is rooted in an 1877 law spearheaded by a representative who later presided over the lynching of three Black men. At the time, Democrats argued that felon disenfranchisement was necessary to stop “the honest vote of a white man” from being “off-set by the vote of some negro.” Its purpose, alongside other Jim Crow measures like the literacy test, was to “secure white supremacy.”

The law continues to work as intended, as documented in an expert report by University of North Carolina professor Frank R. Baumgartner. Today, Black North Carolinians represent 22 percent of adults and 42 percent of the disenfranchised. Black residents are denied the right to vote at three times the rate of white residents in 44 counties. The state’s disenfranchisement regime targets two groups of people: those on probation or parole, and those who’ve completed their full sentence but still owe court debt. Notably, judges may extend an individual’s probation or send them back to prison because they haven’t paid off these fines and fees.

Meanwhile, in Florida, immediately after a majority of citizens voted to overturn that state’s felony disenfranchisement law, Republican legislators passed a measure that limited that disenfranchisement to those who had managed to pay off all court costs. A federal judge ruled that the restriction was an unconstitutional poll tax. But last Friday, an appeals court narrowly overturned that decision.

The court’s 6-4 ruling dealt a significant blow to civil rights groups that have fought to expand the voter rolls with hundreds of thousands of people who had completed prison time and parole for felony convictions. It also undermined what had seemed like a major referendum victory in 2018 and served as another reminder of the decisive role that a slew of legal cases could play before the presidential election.

There are lessons here, for those of us willing to learn them.

First, racial animus dies hard, and it lurks in places we seldom think to look. Second, the competence and integrity of the men and women who occupy the nation’s bench–who act as custodians of the Constitution and defenders of the Rule of Law–is critically important.

And third, the future of both that bench and this nation depends upon massive turnout for “blue no matter who” on (or preferably before) November 3d.

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Add This To The List

A couple of days ago, Trump floated the possibility of postponing the general election “due to the pandemic.” He made the suggestion in a tweet–of course–in which he also took another swipe at vote by mail, which he distinguished from absentee voting. Absentee voting, he tweeted, was fine; vote by mail, however, would lead to massive fraud.

The tweet displayed his usual–monumental–ignorance of its subject-matter.

First of all–and somewhat beside the point–vote by mail is pretty much identical to absentee voting–a method of casting one’s ballot that Trump himself has frequently used. His insistence that it leads to fraud is belied by the fact that some 29 states employ vote by mail for some portion of their elections; Oregon, Washington State and Colorado all have gone completely to vote by mail, and the only result that would account for Trump’s opposition is increased turnout.

Just as the GOP used fabricated hysteria over “voter fraud” to justify Voter ID laws–the real purpose of which is to suppress the votes of poor people and minorities–Trump is frantically trying to drum up mistrust of mail-in ballots.

When it comes to the question of postponing the election, Trump once again displays his total ignorance of the U.S. Constitution–a document I doubt he has ever read or had read to him. Article 2, Section I, gives Congress some leeway in counting Electoral votes; nowhere does the document give the President any authority whatsoever over the timing or conduct of elections.

Moreover, the 20th Amendment requires the President and Vice-President to end their terms at noon on January 20th in the year following the general election. It allows for no leeway. As one wag has pointed out, if we haven’t elected a new President at that point, the Speaker of the House would become President.

President Pelosi would be okay with me.

Throughout his term in office, Trump has obviously believed that Presidents are like kings–that he has unchecked autocratic power. Fortunately, he is often wrong, but as Gary Hart wrote in a recent New York Times Op-Ed, there are far too many times when he’s right. And that should scare the living you-know-what out of us.

In 1975, after public revelations of intelligence abuses concealed from all but a handful of members of Congress, the United States Senate created a temporary committee to study the nation’s spy agencies — something no standing committee had ever attempted.

What came to be known as the Church Committee, after its chairman, Senator Frank Church of Idaho, recommended broad reforms, including the creation of a permanent Intelligence Oversight Committee. Former Vice President Walter Mondale and I are the last surviving members of the Church Committee.

We have recently come to learn of at least a hundred documents authorizing extraordinary presidential powers in the case of a national emergency, virtually dictatorial powers without congressional or judicial checks and balances. President Trump alluded to these authorities in March when he said, “I have the right to do a lot of things that people don’t even know about.”

Hart says it’s time for a new select committee “to study these powers and their potential for abuse”, and advise Congress on mechanisms that would provide stringent oversight, if not outright repeal.

What little we know about these secret powers comes from the Brennan Center for Justice at the New York University Law School, but we believe they may include suspension of habeas corpus, surveillance, home intrusion, arrest without a judicial warrant, collective if not mass arrests and more; some could violate constitutional protections.

A number of us have urged immediate congressional investigations concerning what these powers are and why they have been kept secret. Public hearings should be held before the November elections, especially with rumors rife that the incumbent president might interfere with the election or refuse to accept the result if he felt in jeopardy of losing.

Hart asks some very important questions:

Where did these secret powers come from? Where are they kept? Who has access to them? What qualifies as a national emergency sufficient to suspend virtually all constitutional protection? And critically, why must these powers be secret?

If–as every rational American must hope–Joe Biden becomes President in January 2021, a searching examination of these secret powers and the nature of the events that might trigger them needs to be added to the very long list of tasks made imperative by Trump’s corrupt and disastrous Presidency.

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A White Nationalist Hail Mary

Too bad Covid-19 isn’t black or brown. Perhaps then, Trump would be enthusiastic about defeating it.

As the Presidential campaign moves into high gear, the White Nationalist buffoon in the Oval Office is trying out one racist “Hail Mary” after another. He’s claimed that if Biden is elected, “our suburbs” would be destroyed. And he wasn’t subtle about the nature of that destruction; he specifically called out a 2015 Obama-era fair-housing initiative that requires local governments to address historic patterns of racial desegregation.

NPR quoted Trump’s warning:

“Your home will go down in value, and crime rates will rapidly rise,” Trump said. “People have worked all their lives to get into a community, and now they’re going to watch it go to hell. Not going to happen, not while I’m here.”

White housewives, apparently, will be sufficiently terrified by the prospect of darker-skinned neighbors to ignore Trumpian chaos and failures to even pretend to govern, and vote Republican in November.

Never particularly tethered to facts, Trump has also warned that Biden will abolish the police. Biden, of course, has said nothing of the kind, but hey–a “law and order” President has to remind voters of the dangers posed by “antifa” and the leftists, even if his own government’s data shows pretty convincingly that there is no actual “antifa” movement, and that the real threat to public safety comes from the right.

As the Guardian has recently reported, 

Donald Trump has made warnings about the threat of antifa and “far-left fascism” a central part of his re-election campaign. But in reality leftwing attacks have left far fewer people dead than violence by rightwing extremists, new research indicates, and antifa activists have not been linked to a single murder in decades.

A new database of nearly 900 politically motivated attacks and plots in the United States since 1994 includes just one attack staged by an anti-fascist that led to fatalities. In that case, the single person killed was the perpetrator. 

Over the same time period, American white supremacists and other rightwing extremists have carried out attacks that left at least 329 victims dead, according to the database.

There’s so much else: Trump’s defense of the Confederate flag, and promises to “protect our historic monuments,” his attack on African American NASCAR driver Bubba Wallace, and his constant and misleading rants against peaceful protesters rallying to the cause of Black Lives Matter. (No, Mr. Pretend-President, the protests are not being mounted by Americans who are trying to destroy the country.)

As Jennifer Rubin noted in a Washington Post opinion column criticizing the New York Times for its understated description of Trump’s “racially charged” references,

Trump is not conducting a seminar on race and culture. He is not calling attention to violence against racial minorities. He is making racist statements and venerating racist symbols. Period.

Rubin also reminds readers that Trump’s explicit and nauseating racism has effectively been endorsed by his political party.

And when the media generously describe Republicans as “bothered” or “uneasy” about Trump’s blatant racism, they exaggerate Republicans’ reaction and distort reality. The overwhelming number of elected Republicans do not say and do not act as though they are bothered or uneasy. The few Republican voices (other than openly Never Trumpers) whom mainstream reporters dig up to say negative things about Trump are generally retired pols (e.g., former congressman Carlos Curbelo) and lesser-known strategists who do not really take Trump on as much as they disagree with his premises and assertions, as if racist words and accusations are floating free in the atmosphere, untethered to a particular person. Let’s be accurate: Whatever personal qualms they might have, virtually every elected Republican either ignores, rationalizes or minimizes Trump’s racist appeals.

In November, Americans won’t just elect people to critically important public offices. We will render a verdict on the country’s original sin. 

The GOP has chosen to make defense of racism its political strategy. The party needs to be so soundly defeated that even the very stupid partisans willing to place party above both morality and country recognize the folly of that approach. 

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Americans Can Hear Trump’s “Dog Whistles”

It occurs to me that calling the Trump campaign’s racist messaging “dog whistles” is increasingly inaccurate.

An actual dog whistle– a high-pitched whistle used to train dogs– typically has a sound inaudible to humans. Politically, the term has been used to describe messages aimed at particular constituencies that can hear them, but using language or imagery that the broader public will not “hear” or understand.

Trump’s messaging, on the other hand, has gotten less and less subtle. We’ve gone well beyond the “very fine people on both sides” response to the Neo-Nazi march in Charlottesville. These days, messages aimed at his most reliable supporters–racists–are heard and understood by growing numbers of the general, non-racist public.

Just this year, we’ve had several examples. There was the rally scheduled for Tulsa on June 19th. In 1921, Tulsa was the site of one of the most horrific racial pogroms in American history, and June 19 is Juneteenth, a holiday commemorating the day slaves in Texas learned they were free. Until recently, most white Americans were unaware of both, but that has been changing as history texts have begun including the less savory parts of the country’s past. (Ironically, given the blowback to Trump’s announcement, many Americans who were unaware of that history now know about both.)

Then there was the announcement that Trump’s acceptance speech would take place in Jacksonville, Florida, on August 27. Black people in Jacksonville know August 27th as “Ax Handle Saturday”–a day when  people participating in a 1960 NAACP demonstration were chased through downtown Jacksonville streets and beaten. Another “coincidence.”

More recently, Trump retweeted a supporter shouting “White Power.”

And of course, there was the truly horrifying campaign message conveyed along with Trump’s current fixation on the ANTIFA of his imagination. A campaign attack on ANTIFA was illustrated with the same upside-down red triangle the Nazis had used in concentration camps to designate political prisoners.

Fewer Americans are familiar with the history of the red triangle, so its use by the campaign probably fits the dictionary definition of a “dog whistle.” The symbol was used in Facebook ads and on the “Team Trump” page, alongside warnings of “Dangerous MOBS of far-left groups” and requests that supporters sign a petition about ANTIFA.

And as if the triangle wasn’t explicit enough, the campaign placed exactly 88 ads using the symbol–88 is a white supremacist numerical code for “Heil Hitler.”

Nixon had his “Southern Strategy.” Reagan was regularly accused of dog whistles to bigots. The GOP has long been accused of covert messaging to America’s distressingly large number of voters who exhibit “racial grievance”–or are outright white supremacists. Even at the GOP’s worst, however, most campaigns have tried to have it both ways–appealing to the racists while not being blatant enough to alert the people in their own party who would be repelled by such messages.

Not Trump. For one thing, he can’t spell subtle. For another, his personal history suggests that he is entirely sympathetic to the “cause” of white supremacy. The evidence stretches from his early refusal to rent apartments to African-Americans, to his truly reprehensible vendetta against the young boys wrongly accused of a Central Park rape, to his ridiculous, disgusting “birther” campaign and his obvious, obsessive effort to destroy anything and everything done by Barack Obama.

Let’s not dignify the Trump campaign by suggesting that it uses “dog whistles.” Let’s call it what it is: a campaign by a white supremacist, for white supremacists.

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Why Judges Matter

Note: For those who follow this blog on Facebook, apologies; changes by FB resulted in automatic posting failing for the last ten days. I’ve manually posted the past three; for others, you will need to access the site.

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Here in Indiana, in recognition of the pandemic, the state’s Election Commission authorized mail-in voting without excuse for the recent primary election. Thus far, they are refusing to allow no-excuse voting by mail in November.

Hey, we’re a Red state, and–in defiance of available data that says neither party benefits from voting by mail–the GOP is convinced that making it easier to vote will help the Democrats. (Besides–as I pointed out recently–mail-in ballots make it impossible to play the minority-vote-suppressing games Republicans have long played in this state.)

Given this official intransigence, several individuals and Indiana Vote By Mail have filed suit in federal court, asserting that the denial violates the constitutional rights of voters, and asking that the judge order the Election Commission and Secretary of State to authorize no-excuse mail ballots.

The complaint notes that these officials “have failed to take necessary actions to protect Indiana voters” and that as a result, many voters will have to make a choice between their personal safety and health, and exercising their right to vote. They want the court to rule that they can cast an absentee ballot “in precisely the same manner in which these same election officials have allowed in the June 2 primary election.”

The pleading points out that a majority of Hoosiers are vulnerable to COVID-19, that the disease is potentially fatal, and that it is readily spread from person to person. They offer medical testimony to the effect that it is “highly likely” to be with us in November, and that  minimizing the risk requires people to “spend the shortest amount of time in the best ventilated, least contaminated environment, where the fewest number of people are generating the fewest virus particles.”

The pleadings identify a variety of ways in which the refusal to allow absentee voting under these circumstances violates the constitution–especially Equal Protection–and cite dozens of cases in support of that argument. (Interestingly, they also cite the 26th Amendment, which prohibits abridging the right to vote due to age. Data suggests that refusal to allow no-excuse absentee voting disproportionately harms the elderly.)

It’s been quite awhile since I was a practicing lawyer, but as I read the pleadings, the plaintiffs make a strong–even conclusive– case. And here’s the “teachable moment,” as we in academic life like to say:

  • The right to vote is one of the most important rights Americans (presumably) enjoy. Every other right ultimately depends upon the conduct of fair elections in which the voice of the people–all of the people–is reflected and honored.
  • When government officials representing the executive or legislative branches act in ways that threaten American liberties–not just our right to cast ballots, but the other rights guaranteed by the Constitution–the courts are our only redress  short of violence. If the judiciary is corrupted, we’re up that creek without a paddle.

For the past three and a half years, Mitch McConnell and the GOP have been intent on corrupting the federal judiciary, confirming ideologues and partisans to lifetime positions, despite the fact that many of them aren’t qualified to be on the bench and have demonstrated no commitment to the rule of law.

Politically, arguments about the importance of the judiciary have tended to be about reproductive rights, but overturning Roe v. Wade is just a minuscule part of the damage that can be done when the courts can’t be counted on to restrain nakedly partisan infringements of the Constitution.

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