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      It’s Time to Prepare for a Possible Trump Indictment

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      “We find by unanimous vote that no widespread fraud took place in the Georgia 2020 presidential election that could result in overturning that election.” With those words, a Fulton County special grand jury’s report, part of which was released Thursday, repudiated Donald Trump’s assault on our democracy.The excerpts from the report did not explicitly offer new detail on a potential indictment of Mr. Trump or any other individual. But they suggest that, combined with everything else we know, Mr. Trump may very well be headed for charges in Georgia.We need to prepare for a first in our 246-year history as a nation: The possible criminal prosecution of a former president.If Mr. Trump is charged, it will be difficult and at times even perilous for American democracy — but it is necessary to deter him and others from future attempted coups.Fani Willis, the Fulton County district attorney, may present the case as a simple and streamlined one or in a more sweeping fashion. Success is more likely assured in the simpler approach, but the fact that the redacted report has eight sections suggests a broader approach is conceivable. In either event, we must all prepare ourselves for what could be years of drama, with the pretrial, trial and appeal likely dominating the coming election season.Ms. Willis opened her investigation shortly after Mr. Trump’s Jan. 2, 2021, demand that the Georgia secretary of state, Brad Raffensperger, “find 11,780 votes.” The second impeachment of Mr. Trump and the Jan. 6 committee hearings developed additional evidence about that request for fake votes and Mr. Trump and allies pushing fake electors in Georgia and nationally. There is now abundant evidence suggesting he violated Georgia statutes, like those criminalizing the solicitation of election fraud.The parts of the special grand jury’s report revealed on Thursday only reinforce Mr. Trump’s risk of prosecution. The statement that the grand jurors found “no widespread fraud” in the presidential election eliminates Mr. Trump’s assertion that voter fraud justified his pushing state election officials. We also know that the grand jurors voted defendant by defendant and juror by juror, and set forth their recommendations on indictments and relevant statutes over seven (currently redacted) sections. The likelihood that they did that and cleared everyone is very low. And the fact that the grand jurors felt so strongly about the issues that they insisted on writing the recommendations themselves, as they emphasize, further suggests a grave purpose.Also notable is the grand jury’s recommendation of indictments, “where the evidence is compelling,” for perjury that may have been committed by one or more witnesses. It seems unlikely that Ms. Willis will let that pass.She will now decide the next steps of the case. Her statement that charging decisions were imminent came more than three weeks ago. If she does indict Mr. Trump, the two likely paths that she might take focus on the fake electoral slates and Mr. Trump’s call to Mr. Raffensperger. One is a narrower case that would likely take weeks to try; the other is a broader case that would likely take months.Narrow charges could include the Georgia felonies of solicitation of election fraud in the first degree and related general crimes like conspiracy to commit election fraud, specifically focusing on events and people who have a strong nexus with Georgia. In addition to Mr. Trump, that might include others who had direct contacts with Georgia, like his former chief of staff Mark Meadows and his attorneys John C. Eastman and Rudolph W. Giuliani (who already received a “target” notification from Ms. Willis warning him that he may be charged). Such a case would focus on activities around the execution of the fake electoral slates on Dec. 14, 2020, followed by the conversation with Mr. Raffensperger on Jan. 2, rooting it in Georgia and avoiding events nationally except to the extent absolutely necessary.Or Ms. Willis could charge the case more broadly, adding sweeping state Racketeer Influenced and Corrupt Organizations, or RICO, charges that could still include the impact of the conduct in Georgia but bring in more of a nationwide conspiracy. This would look more like the Jan. 6 investigation, albeit with a strong Georgia flavor. It could additionally include those who appeared to have lesser contact with Georgia but were part of national efforts including the state, like the Trump campaign attorney Kenneth Chesebro and the Justice Department official Jeffrey Clark.A more narrow case might make slightly more sense: Given the extraordinary circumstances around it, Ms. Willis will surely have her hands full. And it will feature a likely lead defendant who has demonstrated his propensity for legal circuses — coming in the midst of a heated political season no less.That said, Ms. Willis has a proven propensity for bringing and winning RICO cases. And as we have learned in our criminal trial work, sometimes juries are more responsive to grander narratives that command their attention — and outrage.Whether it’s simple or broad, if a case is opened, one thing is nearly certain: It’s going to take a while, probably the better part of the next two years, and perhaps longer. We would surely see a flurry of legal filings from Mr. Trump, which while often meritless nevertheless take time. Here the battle would likely be waged around pretrial motions and appeals by Mr. Trump arguing, as he has done in other cases, that he was acting in his official presidential capacity and so is immune.That challenge, though not persuasive at all in our view, will almost certainly delay a trial by months. Other likely sallies are that the case should be removed to federal court (it shouldn’t); that he relied on the advice of counsel in good faith (he didn’t); or that his action was protected by the First Amendment (it wasn’t).Even if the courts work at the relatively rapid pace of other high-profile presidential cases, we would still be talking about months of delay. In both U.S. v. Nixon and Thompson v. Trump, about three months were consumed from the first filing of the cases to the final rejection of presidential arguments by the U.S. Supreme Court. In this case, there would be more issues, which would be likely to require additional time. At the earliest, Ms. Willis would be looking at a trial toward the end of 2023. Even on that aggressive schedule, appeals would not be concluded until the end of 2024 or beyond.Needless to say, this would have a profound impact on the election season. It would feature a national conversation about what it means for a former president to be prosecuted, and it would no doubt have unexpected consequences.Still, the debate is worth having, and the risks are worth taking. The core American idea is that no one is above the law. If there is serious evidence of crimes, then a former president should face the same consequences as anyone else. If we do not hold accountable those who engage in this kind of misconduct, it will recur.It would be the trial of the 21st century, no doubt a long and bumpy ride — but a necessary one for American democracy.Norman Eisen was special counsel to the House Judiciary Committee during the first impeachment of Donald Trump. E. Danya Perry is a former federal prosecutor and New York State corruption investigator. Amy Lee Copeland, a former federal prosecutor, is a criminal defense and appellate attorney in Savannah, Ga.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. More

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      The Relentless Attack on Trans People Is an Attack on All of Us

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      Over the past year, we have seen a sweeping and ferocious attack on the rights and dignity of transgender people across the country.In states led by Republicans, conservative lawmakers have introduced or passed dozens of laws that would give religious exemptions for discrimination against transgender people, prohibit the use of bathrooms consistent with their gender identity and limit access to gender-affirming care.In lashing out against L.G.B.T.Q. people, lawmakers in at least eight states have even gone as far as to introduce bans on “drag” performance that are so broad as to threaten the ability of gender nonconforming people simply to exist in public.Some of the most powerful Republicans in the country want to go even further. Donald Trump has promised to radically limit transgender rights if he is returned to the White House in 2024. In a special video address to supporters, he said he would push Congress to pass a national ban on gender-affirming care for transgender youth and restrict Medicare and Medicaid funding for hospitals and medical professionals providing that care.He wants to target transgender adults as well. “I will sign a new executive order instructing every federal agency to cease all programs that promote the concept of sex and gender transition at any age,” Trump said. “I will ask Congress to pass a bill establishing that the only genders recognized by the United States government are male and female, and they are assigned at birth.”There is plenty to say about the reasoning and motivation for this attack — whether it comes from Trump, Gov. Ron DeSantis in Florida or Gov. Greg Abbott in Texas — but the important thing to note, for now, is that it is a direct threat to the lives and livelihoods of transgender people. It’s the same for other L.G.B.T.Q. Americans, who once again find themselves in the cross-hairs of an aggressive movement of social conservatives who have become all the more emboldened in the aftermath of the Supreme Court’s decision to overturn Roe v. Wade last year.This is no accident. The attacks on transgender people and L.G.B.T.Q. rights are of a piece with the attack on abortion and reproductive rights. It is a singular assault on the bodily autonomy of all Americans, meant to uphold and reinforce traditional hierarchies of sex and gender.Politicians and those of us in the media alike tend to frame these conflicts as part of a “culture war,” which downplays their significance to our lives — not just as people living in the world, but as presumably equal citizens in a democracy.Democracy, remember, is not just a set of rules and institutions, but a way of life. In the democratic ideal, we meet each other in the public sphere as political and social equals, imbued with dignity and entitled to the same rights and privileges.I have referred to dignity twice now. That is intentional. Outside of certain select phrases (“the dignity of labor”), we don’t talk much about dignity in American politics, despite the fact that the demands of many different groups for dignity and respect in public life has been a driving force in American history since the beginning. To that point, one of the great theorists of dignity and democracy in the United States was none other than Frederick Douglass, whose experience in bondage gave him a lifelong preoccupation with the ways that dignity is either cultivated or denied.“Douglass observed,” the historian Nicholas Knowles Bromell writes in “The Powers of Dignity: The Black Political Philosophy of Frederick Douglass,” “that although dignity seems to be woven into human nature, it is also something one possesses to the degree that one is conscious of having it; and one’s own consciousness of having it depends in part on making others conscious of it. Others’ recognition of it then flows back and confirms one’s belief in having it, but conversely their refusal to recognize it has the opposite effect of weakening one’s confidence in one’s own dignity.”It is easy to see how this relates to chattel slavery, a totalizing system in which enslaved Black Americans struggled to assert their dignity and self-respect in the face of a political, social and economic order that sought to rob them of both. But Douglass explored this idea in other contexts as well.Writing after the Civil War on women’s suffrage, Douglass asked his readers to see the “plain” fact that “women themselves are divested of a large measure of their natural dignity by their exclusion from and participation in Government.” To “deny women her vote,” Douglass continued, “is to abridge her natural and social power, and to deprive her of a certain measure of respect.” A woman, he concluded, “loses in her own estimation by her enforced exclusion from the elective franchise just as slaves doubted their own fitness for freedom, from the fact of being looked down upon as fit only for slaves.”Similarly, in her analysis of Douglass’s political thought — published in the volume “African-American Political Thought: A Collected History” — the political theorist Sharon R. Krause shows how Douglass “clearly believed that slavery and prejudice can degrade an individual against his will” and generate, in his words, “poverty, ignorance and degradation.”Although Douglass never wrote a systematic account of his vision of democracy, Bromell contends that we can extrapolate such an account from the totality of his writing and activism. “A democracy,” Douglass’s work suggests, “is a polity that prizes human dignity,” Bromell writes. “It comes into existence when a group of persons agrees to acknowledge each other’s dignity, both informally, through mutually respectful comportment, and formally, through the establishment of political rights.” All of our freedoms, in Bromell’s account of Douglass, “are means toward the end of maintaining a political community in which all persons collaboratively produce their dignity.”The denial of dignity to one segment of the political community, then, threatens the dignity of all. This was true for Douglass and his time — it inspired his support for women’s suffrage and his opposition to the Chinese Exclusion Act — and it is true for us and ours as well. To deny equal respect and dignity to any part of the citizenry is to place the entire country on the road to tiered citizenship and limited rights, to liberty for some and hierarchy for the rest.Put plainly, the attack on the dignity of transgender Americans is an attack on the dignity of all Americans. And like the battles for abortion rights and bodily autonomy, the stakes of the fight for the rights and dignity of transgender people are high for all of us. There is no world in which their freedom is suppressed and yours is sustained.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. More

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      Does the War Over Abortion Have a Future?

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      In decades past, as the calendar turned to January, the anniversary of Roe v. Wade would come into view. Abortion opponents would be planning to acknowledge the date with the annual March for Life in Washington, D.C. Supporters of abortion rights would schedule seminars or meet for quiet conversations about whether and when the Supreme Court might actually go so far as to repudiate the decision it issued 50 years ago on Jan. 22, 1973.There will, of course, be no Roe to march against this year, the right to abortion having died a constitutional death in June at the hands of five Supreme Court justices. There has been ample commentary on how anger at the court for its decision in Dobbs v. Jackson Women’s Health Organization helped to block the predicted “red wave” in the midterm elections. Not only did Dobbs-motivated voters enable the Democrats to hold the Senate, but they also, given the chance to express themselves directly, accounted for abortion rights victories in all six states with an abortion-related question on the ballot (California, Kansas, Kentucky, Michigan, Montana and Vermont).But the justifiable focus on the role of abortion in the country’s politics has crowded out much talk about what this unexpected political turn actually means for the future of abortion. There is a case to be made, it seems to me, that abortion access has won the culture war.I know that might sound wildly premature, even fanciful: Abortion access has vanished across the South in the wake of the Dobbs decision, and anyone anywhere in the world remains free to pursue Texas women seeking abortions, along with anyone who helps them, for a minimum $10,000 bounty under the state’s S.B. 8 vigilante law. The picture is bleak indeed. But it’s when it appears that things couldn’t get worse that weakness can become strength.Consider that as the midterms approached, Republican candidates for whom taking an extreme anti-abortion position had been as natural as breathing started scrambling for cover, blurring their positions and scrubbing their websites, as Blake Masters did to no avail in his campaign for an Arizona seat in the U.S. Senate. (Doug Mastriano, the Republican candidate for governor of Pennsylvania, held to his extreme no-exceptions position, and that didn’t help either.)The full dimension of the post-Dobbs world will come into ever clearer view, as news accounts mount up of what happens when women whose wanted pregnancies have gone drastically wrong are denied the prompt terminations that barely seven months ago would have been the obvious treatment. People who have regarded abortion as something that befalls wayward teenagers will come to realize that abortion care is — or was — an ordinary and necessary part of medical care. And while all the justices in the Dobbs majority were raised in the Catholic church, nearly two-thirds of American Catholics believe that abortion should be legal in all or most cases.In suggesting that abortion has won its corner of the culture wars, I don’t mean that those wars are over in general or that the road ahead for abortion access is easy. Trans teenagers and their struggle to find a place in the world will continue to be fodder for cynical politicians. School boards taken over by conservative activists will continue to vet reading lists for any hint that the country’s past was less than perfect. Those Supreme Court justices who remain unreconciled to marriage equality will keep looking for ways to enable self-described Christians to avoid treating same-sex couples equally in the marketplace for goods and services. Texas voters just re-elected Greg Abbott as their governor, and the Texas Legislature is not about to repeal S.B. 8.What I mean is that the polarity has shifted. The anti-abortion position that was so convenient for Republican politicians for so long is, with surprising speed, coming to seem like an encumbrance. The once-comfortable family-values rhetoric no longer provides cover for the extremism that the Dobbs decision has made visible. Yes, the new Republican majority in the House of Representatives this week passed two anti-abortion measures, both recognized as dead on arrival. The important point about this bit of legislative theater was the label a conservative South Carolina Republican, Representative Nancy Mace, affixed to it: “tone-deaf.” Even so, she voted for the two bills.In a recent article published by ProPublica, Richard Briggs, a Tennessee state senator and cardiac surgeon who co-sponsored the state’s exceptionally strict abortion ban in 2019, now says he had assumed the law would never actually take effect and believes it is too harsh “because the medical issues are a lot more complex.” Not incidentally, 80 percent of Tennessee voters believe that abortion should be legal at least under some circumstances.Abortion is surely not going away as an issue in politics. But it will be just that: an issue, like food safety, reliable public transit, affordable housing and adequate energy supplies. All these, and countless others, are issues in politics, too. We need these things, and if the government won’t provide them, we assume at least that the government won’t stand in the way of our getting them.Democrats played defense on abortion for so long (remember the apologetic Clinton-era mantra “safe, legal and rare”?) that defense became part of the Democratic DNA. What this posture ultimately led to was Dobbs. And now the midterm elections have made Dobbs not an end point but an opportunity, a gift, albeit an unwelcome one, in the form of a national admonition on what extremism looks like.The decision and its aftermath have freed people to acknowledge — or even shocked them into realizing for the first time — that a civilized country requires access to abortion. It is possible, and I’ll even be bold enough to say that it is probable, that in Roe v. Wade’s constitutional death lies the political resurrection of the right to abortion.Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.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. More

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      Lawyers Who Investigated Trump Start Firm to Combat Threats to Democracy

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      Mark F. Pomerantz, Carey R. Dunne and Michele Roberts, the former head of the N.B.A. players union, will launch a pro bono law firm, the Free and Fair Litigation Group.Last year, Mark F. Pomerantz and Carey R. Dunne were leading the Manhattan district attorney’s investigation into Donald J. Trump’s business practices.Now, they have turned their attention to a broader phenomenon that they say the former president represents: threats to democracy in the United States.Mr. Pomerantz and Mr. Dunne, who resigned last year when the district attorney decided not to seek an indictment of Mr. Trump, said they have formed a pro bono law firm that aims to stem the tide of anti-democratic policies proliferating around the country. The firm — the Free and Fair Litigation Group, which opens its doors this week — is also led by Michele A. Roberts, the former head of the union that represents professional basketball players.All three founders have extensive experience as litigators, and they plan to defend policies they see as just and bring lawsuits challenging those they believe are undemocratic, the three founding partners said in an interview. Their work will initially focus on voting rights, gun control and free speech.“As I see it, we’re now faced with not just one politician, but really with a national movement that’s aimed at rolling back decades of rights and constitutional principles,” Mr. Dunne said.In the two years since Mr. Trump’s false claims that the 2020 election had been stolen helped spark a violent riot at the Capitol, election denial has only grown within the Republican Party. Mr. Trump is once again a leading contender for president, and the House is in the hands of Republicans — many of whom voted against certifying President Biden’s election victory.Against that backdrop of deep political polarization, it remains to be seen how much of the new firm’s ambitious agenda can be accomplished, particularly if its cases reach a Supreme Court that has taken a sharp rightward turn.Michele Roberts, the former executive director of the N.B.A. players union, is an experienced litigator.Gabriella Demczuk for The New York TimesThe three founders will take no salary, and the firm will do all its work for free. They expect to hire a small staff of lawyers — no more than eight employees, including one who recently served as a federal prosecutor — and partner with a number of larger law firms. The firm, a nonprofit, will solicit outside donations from foundations and small donors alike.The new firm differs from larger groups like the American Civil Liberties Union and the Brennan Center for Justice, which conduct lobbying and research in addition to their work in court, because of its singular focus on litigation.The venture was a product of serendipitous timing: three busy lawyers who found themselves with nothing on their dockets in the spring of last year.Ms. Roberts, an experienced litigator, had just retired as executive director of the N.B.A. Players Association. Mr. Pomerantz, a well-known defense lawyer who also served as the criminal division chief at the U.S. attorney’s office in Manhattan, came out of retirement in early 2021 to lead the district attorney’s investigation into Mr. Trump. He resigned in February of last year, as did Mr. Dunne, another prominent litigator who oversaw the Trump investigation and successfully argued before the U.S. Supreme Court twice in the fight over a subpoena for Mr. Trump’s tax returns.Although Mr. Pomerantz and Mr. Dunne had begun to present evidence to a grand jury about the former president’s business practices by early last year, the new district attorney, Alvin L. Bragg, developed concerns about proving the case and decided not to seek to indict Mr. Trump at that time, prompting the resignations. The investigation, which began under the prior district attorney, Cyrus R. Vance Jr., is now continuing under Mr. Bragg, who also recently secured the conviction of Mr. Trump’s company.Carey Dunne won a Supreme Court decision that gave Manhattan prosecutors access to Donald Trump’s tax returns.Jefferson Siegel for The New York TimesWhile the new law firm currently has no plans to take on Mr. Trump directly, its mission was in some sense inspired by his influence over the Republican Party and the Supreme Court, to which he appointed three conservative justices.“Trump is obviously the poster boy for increased authoritarianism,” said Mr. Pomerantz, who has written a book about his time investigating Mr. Trump that Simon & Schuster announced on Wednesday would be published in February. “He personifies the problem, but he’s far from the only manifestation of the problem.”For his part, Mr. Trump has slammed Mr. Pomerantz publicly, calling him a “low-life attorney” who “is a ‘Never Trumper’ and a Hillary Clinton sycophant.”The firm’s first case involves gun control policies under attack in the wake of the Supreme Court’s ruling last year expanding the right to carry firearms outside the home. The firm is defending four Colorado towns, each with bans on carrying assault weapons in public, that were sued by a gun rights group after the court’s decision. The case is scheduled to go to trial this fall.Measures like Florida’s “Stop W.O.K.E.” law, which limits talk of race, gender and nationality in schools and the workplace, are also of interest at the new firm. It has begun examining the possibility of bringing a First Amendment lawsuit focused on similar laws in other states that prohibit diversity training in the workplace.The firm is also developing plans to challenge Florida’s arrest of a number of people with criminal histories who were able to register to vote in the 2020 election even though their past convictions should have barred them from doing so. Although criminal charges against some of those people have been dismissed, the firm is researching the possibility of suing the state for having violated the Voting Rights Act, arguing that the arrests discourage legal voting by people with criminal convictions.“It’s just disgraceful,” Ms. Roberts said, adding that the case had hit home for her as someone who is concerned with voting rights and with “legislative changes to election laws in various states.”To litigate the cases, the firm will turn for support to a roster of prominent law firms and advocacy groups.In the Colorado gun control case, the firm is working with Everytown for Gun Safety, the group founded by the former New York City mayor Michael R. Bloomberg, as well as Davis Polk, Mr. Dunne’s former firm. On the Florida voting rights case, they have met with a group called Protect Democracy, a nonprofit founded by lawyers from the Obama White House, as well as Paul Weiss, where Mr. Pomerantz was a partner for many years.Mark Pomerantz and Mr. Dunne led the Manhattan district attorney’s inquiry into Mr. Trump until they resigned last year.David Karp/Associated PressThe outside firms are providing their resources on a pro bono basis. The new firm’s board of directors will also include a number of boldfaced names from the criminal justice world, including Tali Farhadian Weinstein, a former general counsel at the Brooklyn district attorney’s office who was a Democratic candidate for Manhattan district attorney in 2021.Free and Fair’s executive director will be Danny Frost, a lawyer who served as a senior adviser and spokesman in the district attorney’s office under Mr. Vance, when Mr. Dunne and Mr. Pomerantz were working on the Trump investigation.Thus far, the firm has mostly accepted donations from friends and professional acquaintances but in the coming months will ramp up their fund-raising now that the I.R.S. has certified the firm as a nonprofit.Originally, the principals had expected that getting authorized for tax-exempt status would take half a year. Then they learned that they could make an emergency application to the I.R.S., “but only if what you’re providing is so desperately needed by the country that you can claim emergency treatment status,” Mr. Dunne said.They filed their application in October. Within 14 days, they had received the emergency approval. More

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      ¿El mundo se está acabando? ¿O solo es el miedo?

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      ¿Qué podemos decir de este último año en Estados Unidos? Hay quien afirma que esto es el fin, o el principio del fin; que la infraestructura de nuestra democracia se está desmoronando; que los sismos de la economía auguran un colapso y que el riesgo nuclear en la guerra rusa contra Ucrania podría combustionar y provocar algo mucho mayor. En cambio, otros dicen que, a pesar de todas estas tensiones, en realidad estamos viendo cómo se sostiene el sistema, que la democracia prevalece y que el peligro se está disipando.Esos argumentos se pueden calificar de histéricos, displicentes o ajenos a la realidad, pero también se pueden plantear de manera abierta y franca. Quizás estemos de verdad al borde de algo peor, como en algunos largos periodos del siglo XX, y quizás así era como se sentía la gente en esas épocas sobre las cuales has leído. ¿Se está acabando el mundo tal como lo conocíamos? ¿Lo sabrías, siquiera, antes de que fuera demasiado tarde, antes de que en efecto se hubiera acabado?En 2022, podíamos ver cómo el discurso oscilaba entre el apocalipsis y la relativización, y entre el pánico y la cautela, en la política, en los medios, en Twitter e Instagram, en mensajes de texto, en persona, dentro y fuera de facciones ideológicas, sobre la guerra en Europa, el estado de la democracia estadounidense, el iliberalismo y el posible repliegue del globalismo, la violencia, la COVID-19, la inteligencia artificial, la inflación y los precios de la energía y el criptocontagio. Hay versiones profundas de este debate, y luego hay versiones reduccionistas que se entrevén en los comentarios de Instagram, o en una columna de opinión, que interpretan todo mal. Este debate incluso lo puede mantener una persona consigo misma.Lo más probable es que ya estés al tanto de las posibilidades apocalípticas respecto a la democracia estadounidense. Fundamentalmente, este país no funciona si el traspaso pacífico del poder no funciona. Este país no funciona, y no funcionó en la memoria reciente, si la gente no puede votar. Y puede haber un umbral a partir del cual deje de funcionar si el suficiente número de personas desconfía de los resultados electorales. Estas cuestiones existenciales se han canalizado ahora en problemas concretos: en 2022, hubo gente que llamó a las oficinas de campaña electoral y dejó amenazas de muerte; gente con equipo táctico apostada ante las urnas; y oficinas de campaña que instalaron cristales antibalas. Los republicanos mandaron candidatos a Arizona y Pensilvania que se postularon con la premisa de que en este país las elecciones son una mentira. Millones de personas vieron las audiencias sobre el 6 de enero donde se indagó en lo caóticos y precarios que fueron en realidad los últimos días de la Casa Blanca de Trump.Después, en este frágil paisaje de confianza, estaban las cortes. En verano, la Corte Suprema anuló completamente el caso Roe contra Wade, sentencia que se esperaba desde tiempo atrás, pero que aun así pareció conmocionar hasta a las personas que estaban a favor, incluso después de la surrealista publicación de un borrador de la opinión de la Corte en la primavera. Que eso llegara a suceder —que de pronto una mujer tuviera que ir a otro estado a realizarse un aborto para no arriesgarse a morir a causa de las complicaciones— no solo comportó ese tipo de consecuencias tangibles en mil momentos privados de la vida las personas, sino que también abrió un mundo de otras posibilidades que podrían ocurrir. Quizá la Corte revoque la igualdad del matrimonio. O refrende la rebuscada teoría de la “legislatura estatal independiente”, adoptada por un grupo de derechistas y que consiste en ampliar los poderes de las legislaturas estatales para celebrar elecciones, con el peligro de desestabilizar todo el sistema.Todos estos acontecimientos fueron aparejados de un discurso desorientador, de alto riesgo, sobre cómo y cuánto hablar de las teorías de la conspiración y las amenazas antidemocráticas. Sabemos que lo que dice la gente —lo que decimos— en las redes sociales, y por supuesto en los medios de comunicación, moldea la percepción de los demás sobre la política, pero de un modo difícil de medir, y saber esto puede convertir cada artículo o mensaje en las redes en una oportunidad o un error. Hubo articulistas que sostuvieron que centrarse excesivamente en la democracia podría ahuyentar a los votantes, en vez de persuadirlos, o incluso corromper las instituciones al entremezclar las preocupaciones constitucionales con las de índole partidista.Después estuvo el mundo más allá del discurso, donde nadie pudo controlar gran cosa más allá de un solo hombre. Desde la anexión de Crimea en 2014 y la tibieza con que respondió Occidente a ella, la gente llevaba meses, y años, advirtiendo de que Vladimir Putin ordenaría la invasión total de Ucrania. Y entonces ocurrió. No hay muchas personas, en Rusia u otras partes, que parezcan querer esto, más allá de Putin, pero eso no impidió que Ucrania se convirtiera en el tipo de lugar donde un niño tiene que averiguar por sí mismo que los soldados han fusilado a su madre y a su padrastro porque nadie sabe cómo decírselo; donde la gente tenía que beberse el agua de los radiadores para mantenerse con vida; donde, al reflexionar sobre las salvajes muertes en la ciudad, alguien puede acabar señalando con tristeza que “en teoría, los organismos internacionales tienen la autoridad de procesar los crímenes de guerra donde y cuandoquiera que se produzcan”.La rápida transición desde la invasión como algo esperado pero hipotético a algo muy real, con muertes innecesarias y millones de ucranianos y rusos teniendo que dejar sus casas quizá para siempre, abrió otras siniestras posibilidades. Parecía una cuestión existencial, primero para Ucrania, y después para el resto de Europa del este. La alianza de la OTAN podía fracturarse, en el caso de una escalada. La posibilidad de que China invadiera Taiwán —y de una guerra total a escala mundial— pareció de pronto más fácil de concebir, incluso de esperar. Las armas nucleares pasaron a ser algo en lo que gente piensa, en serio. Y, de forma más inmediata, pareció que las interrupciones en el suministro de gas y baterías y en la producción y distribución del grano iban a causar estragos a lo largo y ancho de los países.De debatir si la inflación pospandémica podría ser transitoria se pasó a plantear si podría parecerse a la de la década de 1970, con las dificultades de la estanflación y las escaseces de energía; después, de si la quiebra de las criptomonedas podría recordar a la del mercado inmobiliario en la década de 2000; qué consecuencias políticas y de otro tipo podría tener el disparo de los precios; y, peor aún, que los precios del grano puedan provocar una ola de hambrunas en todo el mundo. En Odd Lots, el pódcast sobre finanzas de Bloomberg, los presentadores señalan con frecuencia que se ha producido una “tormenta perfecta” de condiciones para la crisis: en la logística del comercio marítimo, en los precios del café, en la menor producción de cobre, en las dificultades de empezar a extraer más petróleo. Todo parece haberse estropeado o torcido un poco al mismo tiempo. ¿Se trata de un intenso periodo de acontecimientos inusuales, o de un momento de calma antes de que todas las piezas interconectadas colapsen?Y esto sin contar otras preocupaciones más profundas que tienen las personas, y que también contribuyen a generar la sensación de desintegración social: la depresión y la ansiedad entre los adolescentes, el descenso de nivel en lectura y matemáticas, la omnipresencia del fentanilo y el resurgimiento del antisemitismo y la violencia anti-LGBTQ. La policía tardó una hora en intervenir mientras un joven disparaba contra niños. Jóvenes que disparan a los clientes de una tienda de comestibles porque eran negros; clientes que lo hacen en un club gay y trans; y también jugadores de fútbol universitario, después de una excursión para ver un partido. Vidas truncadas en un contexto de normalidad, y pocas cosas pueden hacer sentir más a la gente que el mundo se acaba.Existe una razón por la que a muchas personas les preocupa una mayor soledad social, la cual es difícil de definir y más aún de subsanar. Existe una razón por la que muchas personas dicen que es como caminar en medio de la niebla. “Por ahora, estamos vivos en el fin del mundo, traumatizados por los titulares y las alarmas del reloj”, escribió el poeta Saeed Jones en su poemario más reciente.A pesar de todo este dolor y esta nefasta posibilidad, algunas noticias han desafiado las expectativas. Rusia no se ha llevado Ucrania por delante; Estados Unidos y Europa se mantienen unidos; la gente celebra en la retirada de las tropas rusas de sus ciudades sin luz. Muchos de los grandes exponentes de las teorías conspirativas sobre las elecciones en Estados Unidos —y en especial quienes querían hacerse con las riendas de la burocracia electoral— perdieron en los estados más importantes de cara al traspaso de poderes presidenciales. El colapso de las grandes plataformas de intercambio de criptomonedas no se ha extendido, por ahora, a todo el sistema financiero. La Corte Suprema pareció escéptica este mes respecto a la teoría de las legislaturas estatales, aunque en realidad no podremos confirmarlo hasta el año que viene. No ha habido violencia o agitación generales en la jornada electoral o en reacción a los resultados.Tal vez a los seres humanos se nos ha infravalorado frente a la inteligencia artificial, como apuntó mi colega Farhad Manjoo; hubo un avance en la fusión nuclear, aunque el desarrollo a partir de ahí podría ser verdaderamente complicado; es muy probable que pronto se administre una vacuna contra la malaria que pueda transformar el modo de propagación de la enfermedad. Algunas de las predicciones más funestas sobre el cambio climático podrían resultar al final haber sido demasiado funestas. Como escribió mi colega David Wallace-Wells este año: “El margen de posibles futuros climáticos se está reduciendo, y, por tanto, nos estamos haciendo una mejor idea de lo que vendrá: un nuevo mundo, lleno de disrupciones, pero también de miles de millones de personas que vivirán con un clima que distará de ser normal, pero también, afortunadamente, del verdadero apocalipsis climático”.Él sostiene que, en parte, algunos de esos mejores resultados se derivan de la movilización a causa de un profundo temor. Esto va ligado a la misteriosa relación entre las advertencias ominosas y los resultados positivos, a ese miedo que puede mitigar la causa del miedo. Quizá fue eso lo que impidió ganar las elecciones a los teóricos conspirativos a ultranza: que los votantes indecisos visualizaron el funesto panorama de lo que podría pasar y decidieron actuar. O quizá solo quieren más estabilidad; quizá mucha gente la quiere.Esta es, en teoría, la razón por la que la gente debate sobre el carácter de nuestros problemas y su gravedad en Twitter y en lugares como The New York Times: la respuesta. El debate científico privado y público sobre, por ejemplo, la gravedad de una nueva variante de un virus tiene el potencial de guiar la respuesta del gobierno y de la sociedad.Pero no puede bastar con eso, ciertamente, porque la mayoría de este tipo de conversaciones no se mantienen con la expectativa de que Joe Biden esté escuchándolas.Oír hablar de que el mundo se acaba, o que te digan que deberías calmarte, puede ser absolutamente exasperante si no tienes el ánimo para ello: la persona que parece demasiado alarmista, cuyo pánico te crispa los nervios o se filtra en tu psique y se adhiere a todas tus preocupaciones menores; o ese tipo de argumentos que dicen que la democracia está perdida: derribarán sin excepción cualquier cosa que digas que pueda hacer más compleja la imagen. O la persona que es demasiado displicente, incapaz de reconocer una preocupación genuina de la gente, que en última instancia no te reconoce a ti; que no ve, o se niega a ver, que la crisis está aquí ya.Preocuparse sobre el fin de todo, desdeñar eso, debatirlo, apostar por lo que vendrá después: esta podría ser una manera de ejercer control sobre lo incontrolable, de afirmar nuestra propia voluntad de acción o marcar distancias entre nosotros y lo inesperado. Las cosas simplemente suceden ahora, más allá de las creencias, la racionalidad y, a veces, las palabras. Y tiene algo de esperanzador —en cuanto validación de que estamos vivos y podemos influir en los acontecimientos— que intentemos darle sentido a todo ello.Katherine Miller es redactora y editora de Opinión. More

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      Israel’s New Government Pushes A Rush of Far-Right Initiatives

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      Benjamin Netanyahu needed the support of far-right factions to return to the prime minister’s office. Now they want to curb the powers of the judiciary, giving rise to fears about an erosion of democracy.JERUSALEM — As Israel’s prime minister designate, Benjamin Netanyahu, prepares to swear in his new hard-line government and return to office, his deals to cement the support of far-right coalition partners are raising widespread concerns about the country’s future as a liberal democracy.The emerging coalition will be the most hard-right and religious administration in Israel’s history, made up of Mr. Netanyahu’s conservative Likud party and another five far-right and ultra-Orthodox factions. Mr. Netanyahu, Israel’s longest serving prime minister, who was ousted 18 months ago, is on trial for corruption and has grown ever more dependent on these hard-line allies because the more liberal parties refuse to sit in a government led by a premier under criminal indictment.That dependency, critics say, has weakened him in the coalition negotiations, forcing him to go along with at least some of the demands for far-reaching changes that would limit the powers of the judiciary and curb the independence of the police.Mr. Netanyahu’s hard-line allies need him just as much as he needs them; they, too, have no alternative path to power. But their fundamental lack of trust in Mr. Netanyahu, who has a record of breaking promises to coalition partners, led them to insist on a rush of legislation to anchor their new roles and authorities in law, with potentially damaging consequences for the democratic system.Israelis demonstrating against the new government of Benjamin Netanyahu last week in Jerusalem.Atef Safadi/EPA, via Shutterstock“What we see in the legislation preceding the formation of the government is a change in the rules of the game of Israeli democracy,” said Gayil Talshir, a political scientist at the Hebrew University of Jerusalem.The outgoing prime minister, Yair Lapid, a centrist, described the incoming government on Thursday as “dangerous, extremist, irresponsible.”“It will end badly,” he said, calling it “a clearance sale of Israel’s future.”The legislative rush and drafts of coalition agreements include proposals that would allow Parliament to override Supreme Court decisions and would give more weight to politicians in the selection of judges.Legal amendments would greatly expand the powers of the incoming minister of national security, Itamar Ben-Gvir, who oversees the police. Mr. Ben-Gvir is the leader of the ultranationalist Jewish Power party and the main advocate of the bill, which would give him the authority to set policy for the police, something critics say will allow him to politicize the force’s operations.He was convicted in the past on charges of inciting racism and of support for a terrorist group, and ran in the election on a bullish ticket of fighting organized crime and increasing governance, particularly in areas heavily populated by members of Israel’s Arab minority.What to Know About Israel’s New GovernmentNetanyahu’s Return: Benjamin Netanyahu, Israel’s longest-serving prime minister, is set to return to power at the helm of the most right-wing administration in Israeli history.The Far Right’s Rise: To win election, Mr. Netanyahu and his far-right allies harnessed perceived threats to Israel’s Jewish identity after ethnic unrest and the subsequent inclusion of Arab lawmakers in the government.Arab Allies: Mr. Netanyahu’s far-right allies have a history of making anti-Arab statements. Three Arab countries that normalized relations with Israel in 2020 appear unconcerned.Worries Among Palestinians: To some Palestinians, the rise of Israel’s far right can scarcely make things worse. But many fear a surge of violence.Another amendment will allow Bezalel Smotrich, the leader of the Religious Zionism party, to serve as a second minister in the hallowed Ministry of Defense. Mr. Smotrich, whose party ultimately seeks to annex the occupied West Bank, has been promised authority over the agencies dealing with Jewish settlements and Palestinian and Israeli civilian life in the occupied West Bank, in consultation with the prime minister.A third change will allow Aryeh Deri, the leader of the ultra-Orthodox Shas party, to serve as a minister despite a recent conviction and a suspended prison sentence for tax fraud. That amendment, analysts say, could end up applying to Mr. Netanyahu should he ultimately be convicted or reach a plea deal including a suspended sentence.Mr. Netanyahu denies all wrongdoing and says the cases against him will collapse in court.The incoming minister of national security, Itamar Ben-Gvir, who oversees the police. Mr. Ben-Gvir is the leader of the ultranationalist Jewish Power party and the main advocate behind a bill greatly expanding his powers.Gil Cohen-Magen/Agence France-Presse — Getty ImagesStill, experts say, the proposed changes outlined in the coalition agreements are still in flux.“Constitutional political changes are being carried out in record speed, even before the government has been established,” said Yohanan Plesner, president of the Israel Democracy Institute, a nonpartisan research center. “This demonstrates the fragility of our democracy.”But Mr. Plesner emphasized that such practices were not unprecedented in Israel and that there were still many possible outcomes.“There is a discrepancy,” he said, “between the ideas and initiatives and declarations of politicians before elections, and what is actually happening in the negotiating room and being manifested in coalition agreements and government policy.”Mr. Netanyahu, who has already pushed Israel further to the right during his 15 years in power, will now be the main force of moderation in his government compared with his more hard-line partners. Though he is known for his aggressive campaign tactics, Mr. Netanyahu has generally protected the democratic system during his long tenure.He has rejected the warnings about damage to Israeli democracy as fear-mongering by those who lost the election and has pledged to act in the interest of all Israel’s citizens.“We were elected to lead in our way, the way of the national right and the way of the liberal right,” he said in a recent speech to Parliament, “and that’s what we will do.”The most immediate concerns revolve around the law expanding the powers of Mr. Ben-Gvir, the national security minister. It has passed its first reading in Parliament but is still pending final approval.In the past, the minister overseeing the police would set policy priorities in consultation with the commissioner of police, but would not interfere in operational matters or have any influence over investigations.The proposed legislation subordinates the police to the minister’s authority, leading legal officials and experts to fear a politicization of the force. And it grants the minister the right to set priorities and time frames for investigations in a departure from past practices.“The Israel Police will be run under a threatening and belligerent man who lacks responsibility and experience, who wishes to turn it into a political agency,” and to turn the police commissioner into a “puppet,” the outgoing minister of public security, Omer Bar-Lev, told Parliament this week.Mr. Ben-Gvir argues that the police should be subordinate to a minister’s policy in the same way that the military carries out the government’s policy. But critics say that unlike the military, which fights Israel’s enemies, the mission of the police is to deal with Israeli citizens — including corrupt politicians.Aida Touma-Sliman, a Palestinian-Israeli lawmaker, told the committee discussing the bill that the incoming minister’s goals were “ideological” and “racist” and would end up creating a “political police.”Human rights activists say they are worried that the legislation giving Mr. Ben-Gvir broader control over the police could be used to suppress protests.Noa Sattath, the executive director of the Association for Civil Rights in Israel, said her organization petitioned the parliamentary committee discussing the bill to exclude protests from Mr. Ben-Gvir’s areas of authority, as did the committee’s own legal adviser. But Mr. Ben-Gvir rejected that recommendation.“Clearly the minister wants to have authority over the way the police deal with protests,” said Ms. Sattath, who described the bill as endangering one of the foundations of the Israeli democratic system.Clash between Palestinians and the Israeli army in Nablus, in the occupied West Bank on Wednesday.Zain Jaafar/Agence France-Presse — Getty ImagesIn the face of mounting criticism, Mr. Ben-Gvir told the parliamentary committee on Thursday that he would postpone the discussions and voting on the most contentious parts of the bill until after the inauguration of the government.Also of concern are the proposals to change the way the judiciary operates.If implemented, they will dramatically curb the powers of the Supreme Court, which has long been seen by liberal Israelis and analysts as one of the country’s most important institutions safeguarding against the erosion of liberal democratic values. Because Israel has only one house of Parliament and no formal constitution, the judiciary plays a critical role in protecting minority rights and offsetting rule by the parliamentary majority.The coalition partners are keen to see these judicial changes, not least to ensure that the Supreme Court cannot overturn the hasty legislation now making its way through Parliament.“In the coming weeks we will have to face the most significant threats Israeli democracy has seen in recent decades,” Mr. Plesner said at a recent conference at his institute on the implications of the judicial changes proposed by members of the incoming coalition.“The issues on the agenda concern the nature of the state and the basic rights of each and every one of us.”Myra Noveck More

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      Was the World Collapsing? Or Were You Just Freaking Out?

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      What should we make of this year in America? There’s an argument that this is the end, or the beginning of the end, that the infrastructure of our democracy is crumbling, and that the jittery quality in the economy portends collapse and that the nuclear risk in Russia’s war in Ukraine could combust into something much bigger. There is, then, the counterargument that even with all these strains, we’re actually witnessing the system hold, that democracy prevails, that the danger is fading.Those arguments can register as hysterical or dismissive or out of touch, but they can also be considered in the most openhearted, late-night kind of way. Maybe we really are on the verge of something even worse, as in large stretches of the 20th century, and this is how people felt in previous eras that you read about. Is the world as we knew it ending? Would you even know, until it was too late, until it was actually over?In 2022, you could find the swings in discourse between apocalypse and dismissal, panic and caution, in politics, in the media, on Twitter and Instagram, over text, in person, within and between ideological factions, about war in Europe, about the state of American democracy, about illiberalism and the prospective retreat from globalism, about violence, about Covid, about artificial intelligence, about inflation and energy prices and crypto collapse contagion. There are deep versions of this debate, and reductive ones you catch a glimpse of in Instagram comments or in an op-ed that just gets it all wrong. This can even be a debate you have with yourself.You probably know about the apocalyptic possibilities for American democracy. Fundamentally, this country doesn’t work if the peaceful transfer of power does not work. This country doesn’t work, and didn’t work in living memory, if people can’t vote. And there might be a threshold at which it doesn’t work if enough people don’t trust election results. Those existential questions have now been channeled into concrete problems: In 2022, people called up election offices and left death threats; people in tactical gear staked out voter drop boxes; election offices installed bulletproof glass. Republicans fielded candidates in Arizona and Pennsylvania who ran on the premise that elections in this country were a lie. Millions watched the Jan. 6 hearings that delved into how chaotic and fragile the final days of the Trump White House really were.Then, in this fragile landscape of trust, there were the courts. In the summer, the Supreme Court fully overturned Roe v. Wade, a decision long expected, but one that still seemed to shock even the people who wanted it — even after the surreal publication of a drafted opinion in the spring. The fact that it really did happen — that suddenly a woman had to drive into another state to get an abortion so that she wouldn’t potentially die from complications — not only carried that kind of real-life consequence in a thousand private moments of people’s lives, but also opened up a world of other possibilities about what could happen. Maybe the court would roll back marriage equality. Or sign off on “independent state legislature” theory, an obscure theory adopted by a group of right-wingers that would grant expanded powers to state legislatures in carrying out elections and risk destabilizing the entire system.Accompanying all these events was a disorienting, high-stakes discourse about how to talk about conspiracy theories and antidemocratic threats, and about how much to do so. We know that what people say — what we say — on social platforms, and certainly in the media, shapes the way people perceive politics, but in a way that can be hard to measure — an awareness that can convert every piece or post into an opportunity or mistake. Writers argued that excessively focusing on democracy might alienate, rather than persuade, voters, or even corrupt institutions by intertwining constitutional and partisan concerns.Then there was the world beyond discourse, where no one could control much of anything beyond one man. For months, for years, since the 2014 annexation of Crimea and the West’s tepid response to it, people had warned that Vladimir Putin would eventually launch a full-scale invasion of Ukraine — then it happened. Not many people in Russia or anywhere else seemed to want this beyond Mr. Putin, but that did nothing to prevent Ukraine from becoming the kind of place where a boy has to figure out for himself that troops shot his mother and stepfather because nobody knows how to tell him, where people had to drink the water from radiators to stay alive, where reflecting on brutal deaths in one city, someone can find themselves grimly observing, “In theory, international bodies have the authority to prosecute war crimes wherever and whenever they occur.” More

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      This Case Should Never Have Made It to the Supreme Court

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      “The most important case for American democracy” in the nation’s history — that’s how the former appeals court judge J. Michael Luttig described Moore v. Harper, an extraordinary lawsuit that the Supreme Court considered in oral arguments Wednesday morning. Judge Luttig, a conservative and a widely respected legal thinker, is not one for overstatement. Yet most Americans aren’t paying attention to the case because it involves some confusing terminology and an arcane legal theory. It is essential that people understand just how dangerous this case is to the fundamental structure of American government, and that enough justices see the legal fallacies and protect our democracy.First, the back story on the case: In 2021, North Carolina lawmakers redrew their congressional maps. The state had 13 districts at the time, and its voters were more or less evenly divided between Democrats and Republicans. But the Republicans who are in control of North Carolina’s legislature didn’t want fair maps; they wanted power. In one of the most egregious gerrymanders in the nation, they drew 10 seats intended to favor themselves.The North Carolina courts were not amused. A panel of three trial judges found that the 2021 maps were “intentionally and carefully designed to maximize Republican advantage” — so much so that Republicans could win legislative majorities even when Democrats won more votes statewide. The State Supreme Court struck down the maps, finding they violated the North Carolina Constitution’s guarantees of free elections, free speech, free assembly and equal protection.That should have been the end of it: A state court applying the state Constitution to strike down a state law. But North Carolina’s Republican lawmakers appealed, arguing that the U.S. Constitution does not give state courts authority to rule on their congressional maps — even though the legislature had passed a law authorizing the courts to review redistricting plans like these. Instead, the lawmakers are relying on an untested theory that asserts that state legislatures enjoy nearly unlimited power to set and change rules for federal elections.In 2000 the chief justice at the time, William H. Rehnquist, proposed the idea in his concurring opinion on Bush v. Gore, and the independent state legislature theory has been floating around the fringes of right-wing legal circles ever since.To be clear, this is a political power grab in the guise of a legal theory. Republicans are trying to see if they can turn state legislatures — 30 of which are controlled by Republicans — into omnipotent, unaccountable election bosses with the help of the conservative supermajority on the Supreme Court. The theory has no basis in law, history or precedent. The idea that state lawmakers exist free of any constraints imposed by their constitution and state courts makes a mockery of the separation of powers, which is foundational to the American system of government. By the North Carolina lawmakers’ logic, they possess infinite power to gerrymander districts and otherwise control federal elections. It is a Constitution-free zone where no one else in the state — not the governor, not the courts, not the voters through ballot initiatives — has any say.On Wednesday morning, Justice Elena Kagan rejected the theory out of hand, saying it “gets rid of the normal checks and balances on the way big governmental decisions are made in this country. And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most.”In practice, the theory that the petitioners in the case are seeking to use would turn hundreds of state constitutional provisions into dead letters in federal elections. For instance, 48 states affirmatively guarantee a right to vote in their constitutions. (The federal Constitution still does not.) Most state constitutions guarantee free, fair, equal or open elections. Even the secret ballot — so fundamental to American democracy — is a creature of state constitutions. If the justices accept the most aggressive version of the independent state legislature theory that the petitioners want them to and even if they accept a weaker version, provisions like these could become invalid overnight, because the theory holds that state constitutions have no authority to impose any regulations on federal elections. (The Constitution and federal law remain supreme, so challenges to state legislative actions could still be brought in federal courts.)Some of the justices insist that they don’t — they can’t — pay attention to the real-world outcomes of their rulings. They’re just interpreting law. By that logic, this case should be rejected on its merits.First, the theory is based on bad legal interpretation. The Constitution uses the word “legislature” in describing who has the power to regulate federal elections. Because of this word, the theory’s supporters claim, state legislatures have nearly unlimited power in that realm. But as Judge Luttig has noted, the theory has “literally no support” in the Constitution. To the contrary, the framers who wrote the Constitution were concerned that state legislatures had too much power, not too little. The text they wrote makes many references to the powers of those legislatures and of Congress, but it never says or implies that they are immune to review by the judicial branch.Second, the theory is based on bad history. The best evidence its supporters offer is a two-century-old document that has long been known to be fraudulent. Written in 1818 by Charles Pinckney of South Carolina, a founding father, it is purported to be a replica of the plan for government that he introduced three decades earlier at the Constitutional Convention. But what he submitted in 1818 was not the real deal. James Madison suspected this immediately, as have virtually all historians to examine it in the years since.When the theory’s supporters sought to claim that the practices of early state legislatures proved that their side should win, Justice Sonia Sotomayor responded, “Yes. If you rewrite history, it’s very easy to do.”Third, if the Supreme Court accepts this theory, it will create a logistical nightmare in states across the country. That’s because the theory applies only to federal elections, not state elections, in which state courts unquestionably have a role to play. As a result, there would be two sets of rules operating at the same time, one for federal elections and one for state elections. Chaos and confusion would reign.Most important, the Supreme Court has already implicitly rejected the theory many times over. In precedents stretching back decades, the court has made clear that state courts have the power to set limits on what lawmakers can do when it comes to federal elections. As recently as 2019, the court rejected a plea for it to stop the extreme partisan gerrymandering in North Carolina and other states. In doing so, Chief Justice John Roberts explained that this is exactly the role that state courts should play. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” he wrote.At Wednesday’s argument, Justice Samuel Alito appeared to reject that premise. He accused elected state court judges, like those in North Carolina, of being political actors themselves. “There’s been a lot of talk about the impact of this decision on democracy,” said Justice Alito, who has given openly partisan speeches to outside groups and voted consistently in alignment with Republican policy priorities. “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?”Another way to appreciate the absurdity of the theory is to consider who has come out for and against it. On one side, a large and bipartisan group of judges, government officials, former lawmakers, leading historians and constitutional scholars from across the political spectrum have rejected it. These include a co-founder of the right-wing legal group the Federalist Society, the chief justices of all 50 states, multiple Republican former governors and secretaries of state and civil rights organizations.On the other side, you will find a far smaller and less bipartisan cast of characters — among them, the Republican National Committee, a group of Republican state attorneys general and John Eastman, a former law professor last seen helping Donald Trump plan an illegal and unconstitutional coup to stay in office (an act that has exposed Mr. Eastman to a real risk of criminal prosecution).That so many justices would take the theory seriously is bad enough. Three of them — Justices Alito, Neil Gorsuch and Clarence Thomas — appear to favor the independent state legislature theory, as they suggested in an opinion in an earlier stage of the case. Justice Brett Kavanaugh has also indicated his openness to it. It’s worse when the public trust in and approval of the court have fallen to historic lows, thanks largely to aggressively partisan recent opinions, as this board has argued.There’s an old saying that only close cases make it to the Supreme Court. If they weren’t close, they would have been resolved in the lower courts. But Moore v. Harper isn’t a remotely close case. A ruling for the North Carolina lawmakers would flood the federal courts with election litigation that normally plays out in the states, upending the balance of federalism that defines American government. That’s not a conservative result; it’s a dangerously radical one.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. More