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      We Still Have to Worry About the Supreme Court and Elections

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      #masthead-section-label, #masthead-bar-one { display: none }Campaign to Subvert the 2020 ElectionKey TakeawaysTrump’s RoleGeorgia InvestigationExtremist Wing of G.O.P.AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyWe Still Have to Worry About the Supreme Court and ElectionsThe justices are about to consider whether the Voting Rights Act applies to policies that restrict the vote.Contributing Opinion WriterFeb. 25, 2021, 5:00 a.m. ETCredit…Damon Winter/The New York TimesWhen the Supreme Court on Monday rejected Pennsylvania Republicans’ after-the-fact effort to invalidate late-arriving mailed ballots, it was tempting to suppose that the country’s courthouse doors had finally closed on this most litigated of presidential elections.If only it were that simple.True, in denying the Republicans’ petitions, the court didn’t issue an opinion. Of the four votes necessary to accept a case, these two cases (treated by the court as one) garnered only three. So for the official record, the only outcome in Republican Party of Pennsylvania v. DeGraffenreid and in Corman v. Pennsylvania Democratic Party was “denied.”But the three justices who would have accepted the cases — Clarence Thomas, Samuel Alito and Neil Gorsuch — issued dissenting opinions that provide both a road map and a rationale for the Supreme Court’s future intervention in the quintessentially state matter of how to conduct elections.Remember Bush v. Gore, the case that decided the 2000 presidential election, in which five justices voted to overturn the Florida Supreme Court’s handling of a statewide recount? That decision was based on a theory of equal protection so wacky that the majority opinion insisted that “our consideration is limited to the present circumstances” — that is to say, don’t dare invoke this poor excuse for an opinion as a precedent.That didn’t stop Justice Thomas from citing Bush v. Gore in his dissenting opinion on Monday, and he did so in a particularly shameless fashion. The language he cited wasn’t even from the Bush v. Gore majority opinion, but rather from a separate concurring opinion filed in that case by only three of the majority justices, who argued that the Florida Supreme Court had violated the U.S. Constitution by substituting its will for that of the state Legislature. Justice Thomas invoked that minority portion of the decision to assert that the Pennsylvania Supreme Court was constitutionally out of bounds when, citing both the Covid-19 pandemic and the collapse of the Postal Service as its reasons, it added three postelection days for lawful receipt of mailed ballots.He went on to warn that fraud was “more prevalent with mail-in ballots,” citing as evidence a 1994 Federal District Court case, an article in this newspaper from 2012 and the 2018 Republican ballot-harvesting fraud in North Carolina. Such occurrences, he said, raise “the likelihood that courts will be asked to adjudicate questions that go to the heart of election confidence.” This was the reason, he argued, that the Supreme Court should have taken and decided the Pennsylvania cases before the next election cycle.In his inventory of ballot fraud, Justice Thomas of course could not refer to fraud in the 2020 election, because there wasn’t any. Not a problem:We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud. But that observation provides only small comfort. An election free from strong evidence of systemic fraud is not alone sufficient for election confidence. Also important is the assurance that fraud will not go undetected.In other words, Justice Thomas would have it both ways: If there was fraud, the court needed to intervene, and if there was no fraud, the court needed to intervene because the fraud might simply be undetected. Despite his disclaimer, the entire structure of his opinion, suggesting that something bad had happened even if no one could prove it, is fairly read as validating the essence of the Trump narrative.Justice Alito, in a separate dissenting opinion that Justice Gorsuch also signed, was more circumspect about the fraud issue. His emphasis was the urgency of stopping state courts from substituting their judgment for that of the legislatures. He said that even though the election was over and late ballots were too few to have made a difference in Pennsylvania’s vote totals, state courts could be expected to behave in the same way in the future unless the Supreme Court used this occasion to stop them.There are several things to note about the Pennsylvania cases. The most obvious is the absence of a fourth vote. In an initial round in the Pennsylvania cases, in mid-October, Justice Brett Kavanaugh had provided Justices Thomas, Alito and Gorsuch with a fourth vote to grant a stay of the state court decision. But a stay requires five votes rather than four. With Amy Coney Barrett not yet confirmed, the eight justices divided 4 to 4, and the stay was denied without opinions. Justice Kavanaugh withheld his vote on Monday, without explanation. Maybe he decided this was a propitious time to offer some cover for Chief Justice John Roberts, who has voted in nearly all the election cases this fall with the three remaining liberal justices.Justice Barrett was also silent. During her confirmation hearing, Senate Democrats had pressed her to promise recusal from any election cases, given that President Donald Trump had said he needed a prompt replacement for Justice Ruth Bader Ginsburg so that he would have a majority of justices voting his way in any election disputes. Justice Barrett did not recuse herself from the Pennsylvania case. Perhaps her decision not to provide the fourth vote her dissenting colleagues needed was a kind of de facto recusal, in recognition that the optics of voting to hear a last-ditch Trump appeal would be awkward, to say the least.The deeper question raised by Monday’s development is why Justices Thomas, Alito and Gorsuch are so intent on what would seem to be a counterintuitive goal for conservatives: curbing the power of state courts. I’m cynical enough to think it has to do with how these three understand the position of state legislatures and state courts in today’s political climate. It’s been widely reported that Republican-controlled legislatures are rolling out bills by the dozens to restrict access to the polls, aimed at discouraging the kind of turnout that produced Democratic victories in Georgia last month. The vote-suppression effort has become so aggressive that some Republicans are starting to worry about voter backlash, according to a recent Washington Post article.State courts, on the other hand, are capable of standing in the way of this strategy. When state high-court judges are elected, as they are in many states, they typically run in statewide races that are not subject to the gerrymandering that has entrenched Republican power in states that are much more balanced politically than the makeup of their legislatures reflects. What better way to disable the state courts in their democracy-protecting role than to push them to the sidelines when it comes to federal elections.So there is no way the Supreme Court is finished with elections. Next Tuesday, as it happens, the justices will hear a crucial voting rights case. The case, from Arizona, asks the court to decide for the first time how Section 2 of the Voting Rights Act of 1965 applies to policies that restrict the vote, through such measures as voter ID requirements.Section 2, which pertains nationwide, is the major remaining provision of the Voting Rights Actfollowing the Supreme Court’s dismantling of the act’s Section 5, in the 2013 Shelby County case. That section barred certain states and smaller jurisdictions from making changes in their election procedures without first receiving federal permission, known as “preclearance.” Section 5 provided vital protection in parts of the country where racism had not released its grip on the levers of power.The issue now is whether Section 2 can be deployed to fill that gap. It prohibits any voting practice that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” It has typically been used to challenge redistricting plans that dilute the electoral power of racial and ethnic minorities. The question of whether it can be useful in challenging the wave of vote-suppression schemes, which can present complex problems of proof, hands the justices arguably the most important civil rights case of their current term.With the country exhausted and still reeling from the turmoil of the 2020 election and its bizarre aftermath, the urge not to think about elections for a while is powerful. I share it. But it’s a luxury the Supreme Court hasn’t given us, not now, not as long as some justices have more to say.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More

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      What Republicans Might Gain if They Lose Georgia

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyWhat Republicans Might Gain if They Lose GeorgiaThey have survived Trump for the last four years. But disentangling from him might get easier if his latest sabotage succeeds.Opinion ColumnistJan. 5, 2021Defeats for Senators Kelly Loeffler and David Perdue would show there is a real political cost to endorsing not just President Trump but also his fantasy politics.Credit…Damon Winter/The New York TimesAt this time of year, normally a sleepy, unremarkable period, I often write a column summing up the things that I got wrong in the previous year’s worth of punditry. Given that everything is rather more harrowing than usual this year, the habit feels a little self-indulgent — except that one important and mostly falsified hypothesis that I once held, not just for 2020 but across the entire Trump era, is about to be put to one last test.The hypothesis was that by nominating Donald Trump for the presidency and lashing itself so closely to his unique mixture of corruption, incompetence and malice, the Republican Party set itself up for a sweeping political repudiation — on the order of what it faced in 1964, after Watergate and in the last two elections of the George W. Bush era.I was wrong about this in 2016, but after the pandemic arrived in 2020 and Trump responded so Trumpishly, I suspected that the reckoning had finally arrived — that the president was sinking himself and that his party would likely go down with him.Trump did sink, but not as deeply as I anticipated — and meanwhile, the G.O.P. kept bobbing, its House caucus actually increasing, its hold on a few crucial Senate seats surprisingly maintained.Where did I go wrong? Despite making it a frequent theme, I probably underestimated the public’s reluctance to hand a self-radicalizing liberalism full control of government, given its matchless power in other institutions. I also probably underestimated the stabilizing effect of the economic relief efforts on people’s finances, which made the pandemic year less devastating and the anti-incumbent mood less intense. And I suspect there was more lockdown fatigue, more wariness of the Democratic Party’s preferred public-health regime, than the coronavirus polling captured.Add up all those factors, and you have a decent explanation for both the slightly higher-than-expected Trump vote and the voters who wanted to be rid of him but preferred divided government, in numbers that helped keep the Republican Party afloat.Pundits are supposed to learn from the past, and learning from the Republican overperformance in November 2020 would lead one to expect that the G.O.P. will keep its two Georgia Senate seats in today’s runoffs. After all, Trump himself has been defeated (his unwillingness to admit as much notwithstanding), the Georgia suburbs boast plenty of the kind of mildly conservative voters who voted for Joe Biden but also might like to see his presidency held in check, and David Perdue, one of the two Republican senators on the ballot, ran ahead of the president nine weeks ago. A Republican Party that survived the Trump era without the kind of shellacking I kept expecting should surely be able to win the first Senate races of the Biden era.Except that this isn’t the Biden era, is it? Not for two more weeks; for now, it’s still the Trump era, the Trump show, the last crazy act (until he runs in 2024, that is), with everything dialed up as far as he can take it: the wildest conspiracy theories, the most perfect phone calls to beleaguered state officials and the most depressing sort of voter-fraud pandering from the irresponsibility caucus among congressional Republicans. And all of it happening while the Covid curve bends upward, a new strain spreads and the vaccine rollout falls well short of Trump administration predictions — not that the president shows any evidence of caring.This context makes prediction a fool’s errand. You can’t use historical case studies to model pandemic-era runoff elections in which the president is making war on the officials of his own party and some of his fiercest online supporters are urging a boycott of the vote.But since prediction is often just an expression of desire, I’ll tell you what I want to happen. Even though the party richly deserved some sort of punishment, I didn’t want the G.O.P. to be destroyed by its affiliation with Trump, because I’m one of those Americans who don’t want to be ruled by liberalism in its current incarnation, let alone whatever form is slowly being born. But now that the party has survived four years of Trumpism without handing the Democrats a congressional supermajority, and now that Amy Coney Barrett is on the Supreme Court and Joe Manchin, Susan Collins and Mitt Romney will hold real power in the Senate, whatever happens in Georgia — well, now I do want Perdue and Kelly Loeffler to lose these races, mostly because I don’t want the Republican Party to be permanently ruled by Donald J. Trump.Obviously, a runoff-day defeat won’t by itself prevent Trump from winning the party’s nomination four years hence or bestriding its internal culture in the meantime. (Indeed, for some of his supporters it would probably confirm their belief that the presidential election was stolen — because look, the Democrats did it twice!) But the sense that there is a real political cost to slavishly endorsing not just Trump but also his fantasy politics, his narrative of stolen victory, seems a necessary precondition for the separation that elected Republicans need to seek — working carefully, like a bomb-dismantling team — between their position and the soon-to-be-former president’s, if they don’t want him to just claim the leadership of their party by default.That kind of Trump-forever future is what Josh Hawley and Ted Cruz and others are making possible, with their ambitious pandering. Hawley and Cruz both want to be Trump’s heir apparent (as though he doesn’t already have several in his family), but the deeper they go into the Trumpian dreampolitik, the more they build up the voter-fraud mythos, the more likely it becomes that they’ll just be stuck serving him for four more years — or longer.So there needs to be some counterpressure, some sense that dreampolitik has costs. And defeat for two Republicans who have cynically gone along with the president’s stolen-election narrative, to the point of attacking their own state’s Republican-run electoral system, feels like a plausible place for the diminishment of Trump to start.I don’t think that diminishment is necessary to save the American republic from dictatorship, as many of Trump’s critics have long imagined, and with increasing intensity the longer his election challenge has gone on. Whatever potentially crisis-inducing precedents Republican senators are establishing this month, the forces and institutions — technological, judicial, military — that could actually make America into some kind of autocracy are not aligned with right-wing populism, and less so with every passing day.But Trump’s diminishment is definitely necessary if the American right is ever going to be a force for something other than deeper decadence, deeper gridlock, fantasy politics and partisan battles that have nothing to do with the challenges the country really faces.Or to distill the point: You don’t have to see Trump as a Caesar to recognize his behavior this month as Nero-esque, playing a QAnon-grade fiddle while the pandemic burns. We imported at least one of the new variants of the coronavirus from overseas in the past few weeks — like the pandemic itself, the kind of thing a populist-nationalist president is supposed to try to slam the door against — but instead of shutting down flights from Britain or South Africa, he’s been too busy pushing the stupidest election challenge in recorded history, while slipping ever-closer to blaming the lizard people for his defeat.I don’t know how any of this ends. But somewhere between the wipeout of the Republican Party that I once expected and the 2024 Trump restoration that I fear, there’s a world where the party spends the next four years very gradually distancing and disentangling itself from its Mad Pretender and his claims.And since that scenario becomes a little more likely if Georgia goes for the Democrats, I think that not only liberals, but also those Republicans who want a conservatism after Trump, should welcome that result.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTOpinion) and Instagram.AdvertisementContinue reading the main story More

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      Thank the Supreme Court, for Now

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyThank the Supreme Court, for NowThe justices did the right thing by declining to hear the case brought by red states to overturn the election results. But let’s see what happens down the road.Contributing Opinion WriterDec. 17, 2020Credit…Damon Winter/The New York TimesThe Supreme Court was never going to hear, let alone grant, the request by red-state attorneys general and the White House to overturn the election results in four battleground states that went for Joe Biden. We knew that, we privileged few who could have offered an inventory of the lawsuit’s flaws while standing on one foot. We had not the slightest doubt that the case was a non-starter.Or did we?I spent much of last week, nearly up to the moment on Friday night when the court tossed the Texas case into history’s garbage bin, assuring friends and strangers alike that Texas v. Pennsylvania had no merit whatsoever. Texas had no business invoking the court’s original jurisdiction — seeking to come directly to the Supreme Court and bypassing the lower courts — in order to complain directly to the justices about other states’ election processes. The justices, I added, would never permit themselves to be drawn into such a sorry charade.Many people who emailed me with their questions knew little about the Supreme Court and its jurisdictional quirks, but some were lawyers or avid court-followers who know a lot. Their anxiety was a measure of how much of what we once took for granted has been upended during these past four years. I confess that by the end of the week, the tiniest shadow of doubt had invaded my own mind. And no wonder: The usual inference that even young children are able to draw from experience — “This has never happened before so it’s very unlikely to be happening now” — has proved of dubious utility. We can know all the facts and all the rules, but still, we can’t be sure.In the aftermath, with the electoral votes counted and the justices off on their four-week winter recess, what more is there to say about the justices’ refusal to grant the Trump team and its statehouse enablers their day in court? It’s easy to understand why the response offered by Michigan’s attorney general, Dana Nessel, became the go-to quote in many accounts of the week’s denouement. The court, she said, delivered “an important reminder that we are a nation of laws, and though some may bend to the desire of a single individual, the courts may not.”It’s a comforting thought, one that we needed to hear and yearn to believe. But I think it gives the court too much credit. Texas v. Pennsylvania had the form of a Supreme Court case. But it was a Potemkin village of a case, with the proper Gothic typeface on the front cover but nothing inside that resembled sound legal argument. It’s as if someone filed a case asking the court to exercise its original jurisdiction and declare the moon to be made of green cheese. We would hardly pat the justices on the back for tossing out such a case. More likely, we would shrug and say, “There goes another nut case.”The court receives its share of those among the 6,000 petitions that it whittles down every year to the 65 or so accepted for decision. Of course, those cases don’t arrive, as this one did, with the support of 126 of the 196 Republican members of the House of Representatives. The fact that members of Congress are sometimes called “lawmakers” does not, evidently, bestow on them an actual regard for law.And celebrating the court for its restraint in the election cases may be premature. The 2020-21 term, nearly three months in, is still unfolding. We have yet to learn either the fate of the Affordable Care Act or how much further the court will go to elevate religion over the principle of nondiscrimination, the question presented in a case from Philadelphia. Both cases were argued last month, during the court’s first argument sitting since the arrival of the newest justice, Amy Coney Barrett.The country has learned a bit recently about the court’s original jurisdiction — its power to decide without appellate review certain disputes, including between states — something most lawyers never learn much about, let alone encounter. The last time a so-called original case received this much public notice was probably in 1998, when the court gave New Jersey administrative jurisdiction over nearly all of Ellis Island, the immigrant gateway in New York Harbor that New York had long claimed as its own.The one or two such cases the court decides in a typical year have a certain charm despite their obscurity. This week, for example, the justices decided an original case between New Mexico and Texas. The case, decided in New Mexico’s favor, involved the latest chapter in a long-running dispute over rights to water from the Pecos River. As in most original cases, the court had appointed a special master to look into the problem and recommend how to solve it. Justice Brett Kavanaugh noted in his majority opinion that the special master — the “river master” in this instance — was appointed in 1988 “and he continues to serve in that position” 32 years later. The wheels of the court’s original jurisdiction usually turn very slowly.A new original case on the court’s docket is not likely to remain obscure for long. It promises, if the court accepts it, to bring the justices into culture-war territory. Last February, Texas sued California directly in the Supreme Court over a law California passed in 2016 that prohibits state-paid travel to states with laws that permit discrimination against L.G.B.T.Q. individuals.Texas has a law that permits child-welfare agencies to invoke religious reasons for not placing children with same-sex couples for foster care or adoption. Once Texas enacted that law in 2017, California added Texas to the list of states, now numbering 11, to which it will not subsidize travel by its employees. Texas claims that its sovereignty is violated by California’s policy. California argues in response that its own sovereign interest against subsidizing discrimination is at stake.In June, the justices took the somewhat surprising step of asking the Trump administration for the federal government’s view on the dispute. Early this month, the Office of the Solicitor General filed the government’s brief, urging the court to accept the case and noting that “resolving such conflicts among sovereigns falls within the core of this court’s original and exclusive jurisdiction.” The court will probably announce early in the new year whether it will assume jurisdiction.I’ll end this column with a shout-out to a federal judge who really did stand up for the rule of law in an opinion last week. The question concerns abortion, and whether, given the conditions of the Covid-19 pandemic, the Food and Drug Administration should relax its rule requiring women to visit their doctor’s office in order to get the medication that causes an early abortion. The F.D.A. has suspended the in-person rule for some other medications, but refused requests from medical organizations to do the same for the abortion drug mifepristone.In July, Federal District Judge Theodore Chuang, who sits in Greenbelt, Md., issued an injunction requiring the agency to permit doctors, for the duration of the pandemic, to mail or deliver the medication. In October, the Supreme Court responded to the Trump administration’s request for a stay of the injunction by sending the case back to Judge Chuang, telling him to permit the government to argue among other points, that improvements in the Covid-19 situation since the spring meant that visiting a doctor’s office was no longer a sufficient obstacle to merit relaxing the rule for mifepristone.After receiving the administration’s brief to that effect, Judge Chuang issued a 34-page opinion explaining that while conditions have indeed changed, they have changed for the worse. Noting that the Centers for Disease Control and Prevention, the National Institutes of Health, and the Food and Drug Administration have warned about the increasing intensity of the pandemic, he observed that the administration “has offered no expert opinions from a scientist at one of these agencies or elsewhere in the federal government to contradict the facts and conclusions” about the rising danger.“The fact that individuals are permitted to venture out during a pandemic to restaurants or businesses does not establish that women should be mandated to risk exposure to Covid-19 in order to exercise a constitutional right,” the judge wrote. Of course, the Trump administration promptly returned to the court this week seeking a stay of Judge Chuang’s decision.So yes, let’s give credit where credit is due. Let’s thank the courts — plural — for upholding the rule of law. Let’s celebrate the judges who were there when we needed them. We still do.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More