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      Abortion Arrives at the Center of the American Political Maelstrom

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      The Supreme Court’s decision not to block a Texas law banning most abortions left Republicans eager to replicate it. Democrats reeled, but sensed a winning issue in coming elections.WASHINGTON — The Supreme Court’s decision not to block a Texas law sharply curtailing abortions abruptly vaulted the issue to the forefront of American politics on Thursday, reshaping the dynamics of elections in California this month, in Virginia in November and in midterms next year that will determine control of Congress and statehouses.Republicans hailed the court’s 5-to-4 decision, explained in a one-paragraph middle-of-the-night ruling, as a tremendous victory, allowing a nearly complete ban on abortions to stand in the nation’s second-largest state.For Democrats, it was a nightmare come true: A conservative Supreme Court, led by three appointees of former President Donald J. Trump, had allowed a highly gerrymandered, Republican-controlled state legislature to circumvent Roe v. Wade, the half-century-old decision that enshrined abortion as a constitutional right.Suddenly, supporters of abortion rights found themselves grappling not only with the political and policy failures that had led to this point, but also with the prospect that other Republican-controlled legislatures could quickly enact copycat legislation. On Thursday, G.O.P. lawmakers in Arkansas, Florida and South Dakota promised to do so in their next legislative sessions.Yet Democrats also embraced the opportunity to force an issue they believe is a political winner for them to the center of the national debate. After years of playing defense, Democrats say the Texas law will test whether the reality of a practical ban on abortions can motivate voters to support them.Senator Catherine Cortez Masto of Nevada, a Democrat up for re-election in 2022, said people in her state had fought to protect women’s reproductive freedom and would vote accordingly. “If a Republican is going to go to Washington to roll those freedoms back, I will make it an issue,” she said in an interview. “I don’t think you should underestimate the impact that this issue has to Nevadans.”Republicans held up the Texas law as an example for the country to follow. “This law will save the lives of thousands of unborn babies in Texas and become a national model,” said Lt. Gov. Dan Patrick of Texas. “I pray that every other state will follow our lead in defense of life.”Gov. Kristi Noem of South Dakota, who is considered a potential Republican candidate for president in 2024, said she had directed her office to “make sure we have the strongest pro-life laws on the books.”Senate Democrats’ campaign arm has signaled that it will use abortion rights as a cudgel against Republicans running in key states like Nevada, where Senator Catherine Cortez Masto faces re-election in 2022.Sarahbeth Maney/The New York TimesThe court’s decision, which did not address the substance of the Texas law, creates new urgency for President Biden and congressional Democrats to do more than issue public statements vowing to defend women’s reproductive rights.“The temperature just got a lot hotter on this issue, and I certainly now expect Congress to join in these fights,” said Gov. Michelle Lujan Grisham of New Mexico, the chairwoman of the Democratic Governors Association. “Our voters expect us all to do more.”Yet Senate Democrats do not have the votes to eliminate the filibuster, which would be necessary to change federal abortion law in the evenly divided chamber.In Washington on Thursday, Democratic leaders dutifully scrambled to show their determination to push back against the possibility that the Texas law could be replicated elsewhere — or to respond if the Supreme Court rolls back abortion rights when it rules on a Mississippi law that seeks to ban most abortions after 15 weeks of pregnancy, two months earlier than Roe and subsequent decisions allow.Speaker Nancy Pelosi promised to bring a vote on the Women’s Health Protection Act, which would effectively codify abortion rights into federal law.And Mr. Biden pledged “a whole-of-government effort” in response to the Texas law, directing the Department of Health and Human Services and the Justice Department to identify possible federal measures to help ensure that women in the state have access to safe and legal abortions.“The highest court of our land will allow millions of women in Texas in need of critical reproductive care to suffer while courts sift through procedural complexities,” Mr. Biden said. “The impact of last night’s decision will be immediate and requires an immediate response.”Vice President Kamala Harris added, “We will not stand by and allow our nation to go back to the days of back-alley abortions.”The first election that could test Democrats’ capacity to energize voters over abortion rights comes on Sept. 14 in California, where voters will determine the fate of Gov. Gavin Newsom, who faces a recall effort. Mr. Newsom warned on Twitter that the Texas abortion ban “could be the future of CA” if the recall were successful.In Virginia, Democratic candidates for the state’s three statewide offices and House of Delegates pounced on the issue on Thursday. Former Gov. Terry McAuliffe, who is running to recapture the office in November, said the fight for abortion rights would help motivate Democratic voters who might be complacent after the party captured full control of state government in 2019 and helped Mr. Biden win the state last year.“We are a Democratic state. There are more Democrats,” Mr. McAuliffe said. “But this is an off-off-year, and getting Democrats motivated to come out, that’s always the big challenge.”Eyeing 2022, the Democrats’ Senate campaign arm has signaled it will use abortion rights as a cudgel against Republicans running in states like Florida, New Hampshire, Nevada and North Carolina. Democrats planning campaigns for governor next year are preparing to brand themselves as the last line of defense on abortion rights, particularly in states with Republican-controlled legislatures.“People are now waking up to the fact that the battle will now be in the states, and they recognize that the only thing, literally the only thing standing in the way of Pennsylvania passing the same ban that Texas just passed, is the veto pen of our Democratic governor,” said Josh Shapiro, the Pennsylvania attorney general, a Democrat who has said he expects to enter the race to succeed Gov. Tom Wolf. “I’ve given up on the politicians in Washington. I don’t think we can count on them anymore.”Former Gov. Terry McAuliffe of Virginia, who is running for his old post this year, believes abortion access will be a motivating factor for voters.Pete Marovich for The New York TimesThough Republicans have long made overturning Roe a central political goal — as a candidate in 2016, Mr. Trump predicted that his eventual Supreme Court appointees would do so — there was still a palpable sense of shock among Democrats. Despite the court’s 6-to-3 conservative majority, many Democrats seemed mentally unprepared for Wednesday’s ruling.“You can’t plan for a blatantly false or unconstitutional court ruling like this,” said Representative Conor Lamb of Pennsylvania, a Democrat who is running for his state’s open Senate seat next year.Understand the Texas Abortion LawCard 1 of 4The most restrictive in the country. More

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      Justice Breyer on Retirement and the Role of Politics at the Supreme Court

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      In an interview prompted by his new book, the 83-year-old leader of the court’s liberal wing said he is working on a decision about when to step down.WASHINGTON — Justice Stephen G. Breyer says he is struggling to decide when to retire from the Supreme Court and is taking account of a host of factors, including who will name his successor. “There are many things that go into a retirement decision,” he said.He recalled approvingly something Justice Antonin Scalia had told him.“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer said during a wide-ranging interview on Thursday. “That will inevitably be in the psychology” of his decision, he said.“I don’t think I’m going to stay there till I die — hope not,” he said.Justice Breyer, 83, is the oldest member of the court, the senior member of its three-member liberal wing and the subject of an energetic campaign by liberals who want him to step down to ensure that President Biden can name his successor.The justice tried to sum up the factors that would go into his decision. “There are a lot of blurred things there, and there are many considerations,” he said. “They form a whole. I’ll make a decision.”He paused, then added: “I don’t like making decisions about myself.”The justice visited the Washington bureau of The New York Times to discuss his new book, “The Authority of the Court and the Peril of Politics,” scheduled to be published next month by Harvard University Press. It prompted questions about expanding the size of court, the so-called shadow docket and, inevitably, his retirement plans.The book explores the nature of the court’s authority, saying it is undermined by labeling justices as conservative or liberal. Drawing a distinction between law and politics, Justice Breyer wrote that not all splits on the court were predictable and that those that were could generally be explained by differences in judicial philosophy or interpretive methods.In the interview, he acknowledged that the politicians who had transformed confirmation hearings into partisan brawls held a different view, but he said the justices acted in good faith, often finding consensus and occasionally surprising the public in significant cases.“Didn’t one of the most conservative — quote — members join with the others in the gay rights case?” he asked in the interview, referring to Justice Neil M. Gorsuch’s majority opinion last year ruling that a landmark civil rights law protects gay and transgender workers from workplace discrimination.Justice Breyer made the point more broadly in his new book. “My experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart,” he wrote. “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”That may suggest that judges ought not consider the political party of the president under whom they retire, but Justice Breyer seemed to reject that position.He was asked about a remark from Chief Justice William H. Rehnquist, who died in 2005, in response to a question about whether it was “inappropriate for a justice to take into account the party or politics of the sitting president when deciding whether to step down from the court.”“No, it’s not inappropriate,” the former chief justice responded. “Deciding when to step down from the court is not a judicial act.”That sounded correct to Justice Breyer. “That’s true,” he said.Progressive groups and many Democrats were furious over Senate Republicans’ failure to give a hearing in 2016 to Judge Merrick B. Garland, President Barack Obama’s third Supreme Court nominee. That anger was compounded by the rushed confirmation last fall of Justice Amy Coney Barrett, President Donald J. Trump’s third nominee, just weeks after the death of Justice Ruth Bader Ginsburg and weeks before Mr. Trump lost his bid for re-election.Liberals have pressed Mr. Biden to respond with what they say is corresponding hardball: expanding the number of seats on the court to overcome what is now a 6-to-3 conservative majority. Mr. Biden responded by creating a commission to study possible changes to the structure of the court, including enlarging it and imposing term limits on the justices.Justice Breyer said he was wary of efforts to increase the size of the court, saying it could erode public trust in it by sending the message that the court is at its core a political institution and result in a tit-for-tat race to the bottom.“Think twice, at least,” he said of the proposal. “If A can do it, B can do it. And what are you going to have when you have A and B doing it?”Such a judicial arms race, the justice said, could undercut public faith in the court and imperil the rule of law. “Nobody really knows, but there’s a risk, and how big a risk do you want to take?” he said.“Why do we care about the rule of law?” Justice Breyer added. “Because the law is one weapon — not the only weapon — but one weapon against tyranny, autocracy, irrationality.”Term limits were another matter, he said.“It would have to be a long term, because you don’t want the person there thinking of his next job,” he said.Term limits would also have a silver lining for justices deciding when to retire, he added. “It would make my life easier,” he said.Justice Breyer said the court should be deciding fewer emergency applications on its “shadow docket,” in which the justices often issue consequential rulings based on thin briefing and no oral arguments. Among recent examples were the ruling on Tuesday that the Biden administration could not immediately rescind a Trump-era immigration policy and a ruling issued a few hours after the interview striking down Mr. Biden’s eviction moratorium.In both, the three liberal justices were in dissent.Justice Breyer said the court should take its foot off the gas. “I can’t say never decide a shadow-docket thing,” he said. “Not never. But be careful. And I’ve said that in print. I’ll probably say it more.”Asked whether the court should supply reasoning when it makes such decisions, he said: “Correct. I agree with you. Correct.”He was in a characteristically expansive mood, but he was not eager to discuss retirement. Indeed, his publisher had circulated ground rules for the interview, saying he would not respond to questions about his plans. But he seemed at pains to make one thing clear: He is a realist.“I’ve said that there are a lot of considerations,” Justice Breyer said. “I don’t think any member of the court is living in Pluto or something.” More

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      California's Impending Recall Election Is Unconstitutional

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      The most basic principles of democracy are that the candidate who gets the most votes is elected and that every voter gets an equal say in an election’s outcome. The California system for voting in a recall election violates these principles and should be declared unconstitutional.Unless that happens, on Sept. 14, voters will be asked to cast a ballot on two questions: Should Gov. Gavin Newsom be recalled and removed from office? If so, which of the candidates on the ballot should replace him?The first question is decided by a majority vote. If a majority favors recalling Mr. Newsom, he is removed from office. But the latter question is decided by a plurality, and whichever candidate gets the most votes, even if it is much less than a majority, becomes the next governor. Critically, Mr. Newsom is not on the ballot for the second question.By conducting the recall election in this way, Mr. Newsom can receive far more votes than any other candidate but still be removed from office. Many focus on how unfair this structure is to the governor, but consider instead how unfair it is to the voters who support him.Imagine that 10 million people vote in the recall election and 5,000,001 vote to remove Mr. Newsom, while 4,999,999 vote to keep him in office. He will then be removed and the new governor will be whichever candidate gets the most votes on the second question. In a recent poll, the talk show host Larry Elder was leading with 18 percent among the nearly 50 candidates on the ballot. With 10 million people voting, Mr. Elder would receive the votes of 1.8 million people. Mr. Newsom would have the support of almost three times as many voters, but Mr. Elder would become the governor.That scenario is not a wild hypothetical. Based on virtually every opinion poll, Mr. Newsom seems likely to have more votes to keep him in office than any other candidate will receive to replace him. But he may well lose the first question on the recall, effectively disenfranchising his supporters on the second question.This is not just nonsensical and undemocratic. It is unconstitutional. It violates a core constitutional principle that has been followed for over 60 years: Every voter should have an equal ability to influence the outcome of the election.The Supreme Court articulated this principle in two 1964 cases, Wesberry v. Sanders and Reynolds v. Sims. At the time, in many states, there were great disparities in the size of electoral districts. One district for a state legislative or a congressional seat might have 50,000 people and another 250,000. Those in the latter district obviously had less influence in choosing their representative.In Wesberry, the court held that congressional districts of widely varying size are unconstitutional because they are akin to giving one citizen more votes than another, denying citizens equal protection as a result. The court extended that reasoning later that year to state legislatures in Reynolds. Today the one-person one-vote principle requires roughly equal-size districts for every legislative body — the House of Representatives, state legislatures, City Councils, school boards — except for the United States Senate, where the Constitution mandates two senators per state.After Chief Justice Earl Warren retired in 1968, he remarked that of all the cases decided during his time on the court, the one-person one-vote rulings were the most important because they protected such a fundamental aspect of the democratic process.The California recall election, as structured, violates that fundamental principle. If Mr. Newsom is favored by a plurality of the voters, but someone else is elected, then his voters are denied equal protection. Their votes have less influence in determining the outcome of the election.This should not be a close constitutional question. It is true that federal courts generally are reluctant to get involved in elections. But the Supreme Court has been emphatic that it is the role of the judiciary to protect the democratic process and the principle of one-person one-vote.This issue was not raised in 2003 before the last recall, when Gray Davis was removed from office after receiving support from 44.6 percent of the voters. But his successor, Arnold Schwarzenegger, was elected to replace him with 48.5 percent of the vote. So Mr. Schwarzenegger was properly elected.This time, we hope that a state or federal lawsuit will be brought challenging the recall election. The court could declare the recall election procedure unconstitutional and leave it to California to devise a constitutional alternative. Or it could simply add Mr. Newsom’s name on the ballot to the list of those running to replace him. That simple change would treat his supporters equally to others and ensure that if he gets more votes than any other candidate, he will stay in office.A court might not want to get involved until after the election, hoping that as in the last recall election, Mr. Newsom will not end up being replaced by a less popular candidate. But that would be unwise. Undoing an unconstitutional election after the fact would be considerably messier than fixing the process beforehand.The stakes for California are enormous, not only for who guides us through our current crises — from the pandemic to drought, wildfires and homelessness — but also for how we choose future governors. The Constitution simply does not permit replacing a governor with a less popular candidate.Erwin Chemerinsky is the dean of the School of Law at the University of California, Berkeley, and the author of the forthcoming book “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.” Aaron S. Edlin is a professor of law and of economics at Berkeley.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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      Why The Supreme Court's Voting Rights Ruling Leaves No Clear Answer

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      The Supreme Court’s decision on voting rights suggests that limits to the convenience of voting methods may be relatively permissible, while new burdens on casting a ballot in-person might be more vulnerable.What kind of restrictions on voting violate Section 2 of the Voting Rights Act? That’s the basic question in the wake of the Supreme Court’s decision to uphold two Arizona voting provisions last week.The court’s decision didn’t offer a clear answer. Instead, it offered “guideposts” to illustrate why the Arizona law passed muster, without clearly indicating when a law might go too far. Those guideposts appear to set a high bar for successful voting rights litigation.But the guideposts offer lessons about what kinds of voting restrictions might be more or less vulnerable to legal challenge.Many of those lessons stem from a central concept underlying the decision: the idea that every voting system imposes certain “usual” burdens on voters, like traveling to a polling station or returning your ballot.Justice Samuel Alito, writing for the majority, made the case that these burdens may inevitably result in “some” racial disparity. As a result, the conservative justices reject the idea that racial disparity alone is sufficient to establish that a state denied everyone an equal opportunity to vote. That leaves the court looking for signs of a particularly unusual and distinctive burden, even though this added hurdle doesn’t exist in the text of the Voting Rights Act.The court found, without too much trouble, that the two Arizona laws weren’t particularly unusual or burdensome. That was not surprising. Even the Biden Justice Department said the laws did not violate the Voting Rights Act. But the way the court reached that conclusion nonetheless said a lot about what kinds of laws might survive judicial scrutiny.The court’s reasoning suggests that restrictions on the convenience of voting methods may be relatively permissible, while new burdens on in-person voting, whether a reduction in precincts or new voter identification requirements, might be more vulnerable. It may even mean that states with relatively lenient voting laws might have more leeway to impose new restrictions. And no matter what, a fairly large racial disparity — backed by strong statistical evidence — may be crucial in future cases.Convenience voting is less protectedSo what’s a usual burden, anyway? Oddly enough, the clearest benchmark offered by the court is whether a rule imposes a burden that was typical in 1982, when the Voting Rights Act was last amended.If the burden on voters was typical at the time, the thinking goes, then Congress probably didn’t intend to undermine those provisions.What kind of burden would that be? The court went out of its way to note that there was virtually no early or no-excuse mail absentee voting at the time. That can lead one to infer that the court may be fairly likely to accept restrictions on mail and early voting. From this point of view, convenience voting is a bonus option for voters, and any restriction would still leave voters less burdened than they were 40 years ago.The court refrained from deciding “whether adherence to, or a return to, a 1982 framework is necessarily lawful.” Perhaps it would not be, since nonwhite voters now disproportionately use methods intended to make voting more convenient, like early voting. And many states have scaled back their traditional Election Day voting options as demand has declined; simply eliminating convenience voting would often leave many voters with fewer options than they had 40 years ago. On the other hand, there’s not much evidence that expanded voting options have narrowed racial disparities in turnout.Wherever the court draws the line, it’s hard to avoid the conclusion that new ways to make voting more convenient will not be vigorously protected by the court.Novel restrictions may be unprotectedAt the same time, the court may look askance at novel regulations that impose burdens beyond what existed in 1982. Strict photo identification requirements, for instance, did not exist back then. And there was a certain level of basic access, in terms of the availability of in-person precincts, registration and voting hours, which the court would presumably be likely to protect.In oral arguments, Justice Elena Kagan asked whether it would be legal for a state to put all of its polling places in country clubs, where Black voters would need to travel farther than whites and would fear discrimination and experience a high level of discomfort. A 1982 standard, whatever its merits, would offer some level of protections against that kind of extreme possibility, even as it may allow rollbacks in mail and early voting.Size mattersWith the court resigned to some inevitable racial disparities in voting, successful voting rights litigation may entail finding a fairly large racial disparity.How large? Well, probably larger or clearer than in the Arizona case.The court believed that the requirement to vote in your own precinct would affect 1 percent of nonwhite in-person voters and .5 percent of non-Hispanic white in-person voters, or a disparity of about .5 percentage points. Even these figures overstate the share of voters who would be affected by the provision, as the majority of Arizonans cast ballots by mail, not in-person.Strong statistical evidence is also clearly important. The plaintiffs did not have any statistics to establish whether banning third-party ballot collection would create a large racial disparity in voting, and the court brushed aside the testimonial evidence that it was used more by non-white and especially Native American voters.If there’s any consolation for voting rights activists, it’s that many of the most prominent “voter suppression” laws usually feature clear statistical evidence showing that it imposes a burden on a larger share of eligible voters than Arizona’s requirement that voters cast ballots in their own precinct. But what the statistical threshold is for striking down a restrictive law based on racial disparity — 2 points, 5 points, 10 points? — remains to be seen.Court rules that fraud is a legitimate state interestNot even evidence of an unusual burden or a strong racial disparity would necessarily ensure the demise of a voting restriction, under the new ruling. The court also says it will weigh the strength of the state’s interest in regulating its elections against whatever burden it imposes.Judge Alito stated unequivocally in his opinion that preventing fraud was a “strong and entirely legitimate” state interest. A restriction that can be construed as a “reasonable means” for pursuing a legitimate state interest, like preventing fraud or ensuring that votes are cast free from intimidation, will be easier for the state to justify.Other restrictions, like eliminating automatic voter registration or Sunday early voting, do not have a clear connection to a strong state interest, like reducing fraud, and could be more likely to violate the Voting Rights Act.The case said relatively little new about establishing discriminatory intent, the focus of the Justice Department’s case in Georgia. The court reiterated its view that restrictions intended to advantage a specific political party are acceptable, though that distinction may be harder to sustain in Georgia, where Black voters make up an outright majority of Democrats. And the court rejected the theory that an otherwise legitimate and non-discriminatory legislative effort can be contaminated by racially tinged outside context. But that is not the allegation in Georgia, where the Justice Department asserts that the legislative process itself was flawed.The totality of the electoral systemPerhaps the most analytically significant twist in the court’s analysis is that it believes a state’s entire system of voting must be considered when evaluating the burden imposed by a provision.In a certain sense, it’s obvious that a state’s voting system affects whether a particular restriction imposes a great burden on voters. If Texas passed a law to require only a single in-person voting center per county, it might be tantamount to an end to free and fair elections in the state. But that’s the standard in Washington State, where nearly all votes are cast by mail.The court takes this proposition pretty far in the Arizona case. It implies that the availability of multiple, relatively easy options allows for restrictions on any particular option. It says, for instance, that the availability of no-excuse absentee voting — as opposed to universal vote by mail in Washington State — makes it easier to accept restrictions on in-person Election Day voting, even though many voters do not use mail voting and the opportunity to apply for a mail ballot has passed by the time Election Day rolls around.As a result, states offering more voting opportunities will probably find it easier to defend new voting restrictions. That’s probably good news for a state like Georgia, which has no-excuse absentee, early and Election Day voting. More

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      Trump Is Gone, Sort of. The Fireworks Are Still Going Off.

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      Bret Stephens: Hi, Gail. Hope you had a nice Fourth of July. Politically speaking, most of the fireworks seemed to be coming from the Supreme Court. Any thoughts on how the term ended?Gail Collins: Bret, I’ve never been too romantic about Independence Day. I guess in my youth I learned to regard a successful Fourth as one in which nobody got a finger blown off.Bret: Where I grew up, Independence Day was on Sept. 16, though festivities began the night before with a famous shout. Anyone who knows the country to which I’m referring without help from Google gets a salted margarita.Gail: Well, Sept. 16 is Mexican Independence Day — you know, we haven’t had nearly enough talks about your life south of the border. Putting that down for a summer diversion.I admit I did have to look up the famous shout, which I assume is the Cry of Dolores, calling for freedom from Spain, equality and land redistribution.Bret: Mexico was always progressive, though more in theory than practice. And if you really want to nerd out, next month marks the 200th anniversary of the Treaty of Córdoba, when Mexico gained its formal independence.Gail: And Sept. 16 is also the day the Pilgrims set sail on the Mayflower. We need to set aside a fall conversation about history.But right now we’re going to talk about the Supreme Court’s performance. Given its current makeup, I tend to see success in any get-together that concludes without total disaster. (The Affordable Care Act survives!) But I’m very worried about the way the majority is siding with the bad guys on voting rights issues.How about you?Bret: Not that it will surprise you, but I was with the bad guys on that Arizona voting case. It isn’t at all tough for anyone to vote in the Grand Canyon State, in person or, for a full 27 days before an election, by mail. I don’t think it violates the Voting Rights Act to require people to vote in their precinct, or to ban ballot harvesting, which is susceptible to fraud.Gail: One person’s ballot harvesting is another person’s helping their homebound neighbors vote. But I’m not as concerned about what the court’s done so far as where it will take us. We’ve got Republican states eagerly dismantling many procedures that make it easier for poor folks — read Democratic folks — to vote. And some have also been very protective of political leaders’ right to squish their voters into districts that are most favorable to their interests, even if some of them look like two-headed iguanas.Bret: There’s a perception that ballot harvesting mainly helps Democrats. Maybe that’s true, though there are plenty of poor Republicans. But the most notorious example of ballot harvesting being used to steal an election was in a North Carolina congressional race in 2018, where the fraudster was working for the Republican. But I’m with you on those two-headed iguanas. Democracy would be much better off if we could find our way out of the partisan gerrymanders.Gail: Very tricky, since both parties tend to be in favor of creative district-drawing when their folks get the advantage.Bret: On the whole, though, I think the court had a pretty good term considering the fears people had about a 6-3 conservative-liberal split. Brett Kavanaugh and John Roberts voted with the court’s liberals to uphold a federal moratorium on evictions. Amy Coney Barrett voted to uphold Obamacare. And every justice except Clarence Thomas upheld a cheerleader’s right to use a certain four-letter epithet in connection to the words “school,” “softball,” “cheer” and “everything” that we’re usually not allowed to write in this newspaper.Gail: Yeah, we’ve moved into a world in which, for teenagers, posting that word on Snapchat or Instagram is getting to be as common as … buying sneakers or Googling the answers to a take-home quiz. If every student who did it got punished, we might have to replace all after-school activities with detention.Bret: I think the culture crossed the curse-word Rubicon a long time ago. Like, around the time of George Carlin’s “Seven Words You Can Never Say on Television” monologue in 1972.Gail: Although I do have to admit it’d be nicer if the cool kids were the ones who thought of the most creative non-four-letter ways to express their dissatisfaction with life.Maybe bird metaphors? (“Family reunion? I’d rather hang out with a flock of starlings!”) Or … well, let this be an ongoing project.Bret: Flocked if I know how that’ll ever happen.Gail: Let’s talk about something cheerful — the Trump indictments. Or rather, the indictment of the chief financial officer of the Trump Organization for failure to pay taxes on about $1.76 million worth of perks.Have to admit, the part I liked best was the family, particularly Eric, treating perks like a luxury apartment and car and $359,000 in private school tuition as normal life. I mean, if your neighbor brought you over a plate of cookies, would you have to pay taxes on that?Do you think this is going to lead to something bigger? The chief financial officer in question, Allen Weisselberg, is a longtime Trump loyalist. Of course, he’s also 73 …Bret: You know that I hold the Trump Organization in the same high regard in which I hold toxic sludge, K.G.B. poisoned underpants or James Patterson novels. But I’m a little dubious about this prosecution. After all this investigating, this is the worst they can come up with? I’m not excusing it, assuming the charges stick. But it seems like the sort of sneaky and unethical corporate self-dealing that usually results in heavy civil penalties but not criminal charges.Gail: There’s been so much anticipation of an indictment of Donald Trump himself, for overvaluing his properties at sale time, and undervaluing them for tax assessments. Instead, we’ve got a guy nobody’s ever heard of getting a tax-free Mercedes. You’re right — it is kind of a downer.Presumably this is just an early step. Remember there’s that grand jury in Manhattan that’s committed to spending six months looking into possible Trump misdeeds. And they’ve hardly begun.Bret: The larger point is that it has more of the feel of a political prosecution, of the sort that Trump was always threatening against his political opponents, starting with Hillary Clinton. It’s a game at which two can play.Gail: The challenge for the prosecutors is to come up with something bad enough to shock New Yorkers. Or something so very likely to lead to jail time that Trump will come around and make the kind of deal that would freeze him out of politics forever.Bret: My general theory of Trump is that the best thing we can do is starve him of the things he most craves, which is publicity (doesn’t matter if it’s good or bad), plus the opportunity to play the martyr.As for something that could shock New Yorkers — either he skins cats for pleasure or he’s a fan of the owners of the Knicks.Gail: Hey, give the Knicks a break. And let’s change the subject. Give me a snappy summary of your feelings about the never-ending negotiations over Joe Biden’s infrastructure plan.Bret: The result is going to be good, I think. And popular, too. We need a program that’s ambitious and forward-looking, that allows for projects like the George Washington and Golden Gate bridges — projects that will last for centuries — to be built, except this time with greater environmental sensitivity.Gail: Readers, please get out your Twitters and quote this.Bret: I’d also love to see the Biden administration resurrect some of the more inspiring programs of the Roosevelt administration’s New Deal, particularly the Civilian Conservation Corps and the Public Works of Art Project. I don’t just mean creating programs as employment schemes, but also as a way of channeling civic energies toward active, participatory environmental stewardship and aesthetic creation. I also think the art project should be open to foreigners, so that future Diego Riveras can leave their imprint on American buildings and parks and boulevards.Gail: We are in total agreement. But — just checking — are you equally enthusiastic about the other side of Biden’s plan, which would shore up and expand critical social infrastructure like early childhood education and community colleges?Bret: Sure. Why not? You’ve worn me into submission — I mean, agreement!Gail: Pardon me one more time while I pour a glass of champagne. Are you listening, moderate Republicans?Bret: Final topic, Gail. July 4 was supposed to mark the date when Americans could finally mark their independence from the Covid pandemic. Do you finally feel free of it?Gail: Pretty much, Bret. I guess for most people it depends on the things they liked to do that weren’t doable during the shutdown. For me a lot of the loss was not being able to go with my husband to crowded public places like theaters or jazz clubs and not seeing the friends who weren’t real comfortable interacting outside their families.Bret: And I missed the foreign travel.Gail: Now pretty much everything we like is back. The one thing I still really miss is being at work in the real physical office. The work gets done digitally but it really isn’t the same. As much as I love hanging out with you in these conversations, I’d like it better if I could walk over to your desk and make fun of Mitch McConnell.Bret: That, and putting the office’s fancy coffee machines to regular use.Gail: But soon, right? See you in September!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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      Democrats Face High New Bar in Opposing Voting Laws

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      Democrats and voting rights groups say they can no longer count on the federal courts, including the Supreme Court, to serve as a backstop for preventing racially discriminatory voting restrictions.The 6-to-3 decision by the Supreme Court on Thursday that upheld voting restrictions in Arizona has effectively left voting rights advocates with a higher bar for bringing federal cases under the Voting Rights Act: proving discriminatory intent.That burden is prompting civil rights and voting groups to recalibrate their approach to challenging in court the raft of new restrictions that Republican-controlled legislatures have passed this year in the aftermath of Donald J. Trump’s election loss in November. No longer, they say, can they count on the federal courts, including the Supreme Court, to serve as a backstop for preventing racially discriminatory voting restrictions.“We have to remember that the Supreme Court is not going to save us — it’s not going to protect our democracy in these moments when it is most necessary that it does so,” Sam Spital, the director of litigation at the NAACP Legal Defense Fund, said Friday.The high court gutted the central protection of the Voting Rights Act in a 2013 decision, and on Thursday the court further limited the act’s reach in combating discriminatory laws, establishing strict new guidelines for proving the laws’ effects on voters of color and thus requiring litigants to clear the much higher bar of proving purposeful intent to discriminate.Mr. Spital said his group would have to carefully assess its next moves and “think very carefully” before bringing new cases that, if defeated, could set damaging new precedents. The Arizona case, filed in 2016 by the Democratic National Committee, was considered a weak vehicle for challenging new voting laws; even the Biden administration acknowledged that the Arizona law was not discriminatory under the Voting Rights Act. Choosing the wrong cases, in the wrong jurisdictions, could lead to further setbacks, Mr. Spital and other voting rights advocates said.At the same time, Mr. Spital said, it is imperative that voting restrictions enacted by Republicans not go unchallenged.“It will force us to work even harder in the cases that we do bring,” he said. “Once the rules of the game are set, even if they are tilted against us, we have the resources — we have extraordinary lawyers, extraordinary clients, and we have the facts on our side.”Thursday’s ruling also laid bare an uncomfortable new reality for Democrats and voting activists: that under existing law, they can expect little help from the federal courts on election laws that are passed on a partisan basis by the party that controls a state government. Republican lawmakers in Georgia, Florida and Iowa have moved aggressively to push through voting laws, brushing aside protests from Democrats, voting rights groups and even major corporations.Arizona Republicans were candid about the partisan nature of their efforts when the Supreme Court heard the case in March. A lawyer for the Arizona Republican Party told the justices that the restrictions were needed because without them, Republicans in the state would be “at a competitive disadvantage relative to Democrats.”“It’s much harder to prove these things — it takes a lot more evidence,” said Travis Crum, a law professor at Washington University in St. Louis who specializes in voting rights and redistricting cases. “Courts are often reluctant to label legislators racist. That’s why the effects standard was added in 1982.”The high court’s decision also raises the stakes for 2022 contests for governor in the key swing states of Michigan, Pennsylvania and Wisconsin, where Democratic governors are poised to block measures proposed by Republican-controlled legislatures. If a Republican won the governor’s seat in any of those states, the legislature would have a clear path to pushing through new voting laws.Republicans on Friday lauded the Supreme Court ruling, calling it a validation of the need to combat voter fraud — though no evidence of widespread fraud emerged in President Biden’s victory.Justin Riemer, the chief counsel at the Republican National Committee, argued that the new “guideposts” set by Justice Samuel Alito, who wrote the majority opinion, were welcome and would force a recognition of the broader options for voting available in a state.“It reaffirms, for example, that states have an incredibly important interest in protecting against voter fraud and promoting voter confidence,” Mr. Riemer said. “When the court looked at Arizona’s laws, it noted how generous the voting provisions were.”Mr. Riemer noted that Democrats would also have a harder time in meeting new standards for showing that laws impose unreasonable burdens on voters.“I don’t want to say completely shuts them out of Section 2, but it’s going to make it very difficult for them to strike down laws that are really minimally, if at all, burdensome,” Mr. Riemer said, referring to the section of the Voting Rights Act that addresses racially discriminatory practices.Major Supreme Court decisions affirming a new restriction on voting have historically been followed by waves of new state-level legislation. In 2011, 34 states introduced some form of new voter identification legislation after the court upheld Indiana’s voter identification law in 2008.The first immediate test of a newly emboldened legislature will come next week in Texas, where lawmakers are scheduled to reconvene for a special session, in a second attempt by Republicans to pass an election overhaul bill. The first attempt failed after Democrats in the State Legislature staged a contentious late-night walkout, temporarily halting proposals that were among the most restrictive in the country.Those proposals included bans on new methods of voting, a reduction in Sunday voting hours and provisions that would make it easier to overturn elections and would greatly empower partisan poll watchers.The uncertain legal fights will play out in a federal judiciary remade during Mr. Trump’s administration, and Democrats in Congress have failed to enact federal voter protections.The legal defense fund that Mr. Spital represents sued Georgia in May over its new voting laws, arguing that the laws would have a discriminatory effect. Other lawsuits, including one the Department of Justice filed last week, argue that Georgia acted with intent to discriminate against voters of color.But some Democrats, while lamenting the decision by the Supreme Court, noted that they still had plenty of constitutional tools to challenge repressive voting laws.“Obviously, it is now going to be more difficult to litigate,” said Aneesa McMillan, a deputy executive director at the super PAC Priorities USA, who oversees the organization’s voting rights efforts. “But most of our cases that we challenge, we challenge based on the First, the 14th and the 15th amendments of the Constitution.”Among the guideposts Justice Alito articulated is an assessment of “the standard practice” of voting in 1982, when Section 2 of the Voting Rights Act was amended.“It is relevant that in 1982 States typically required nearly all voters to cast their ballots in person on election day and allowed only narrow and tightly defined categories of voters to cast absentee ballots,” Justice Alito wrote.Thursday’s Supreme Court ruling established a series of guideposts for determining whether merely the effect of a voting law is discriminatory, rather than the intent.Stefani Reynolds for The New York TimesThe court did not address the purpose clause of Section 2. But those cases often rely on racist statements by lawmakers or irregularities in the legislative process — trickier elements of a legal case to prove than the effects.“You’re not going to get that smoking gun kind of evidence,” said Sophia Lakin, the deputy director of the A.C.L.U.’s Voting Rights Project. “It’s pulling together a lot of circumstantial pieces to show the purpose is to take away the rights of voters of color.”People protested voting restrictions outside the Texas Capitol in Austin in May.Mikala Compton/ReutersIn Texas, some Democrats in the Legislature had been hoping that they could work toward a more moderate version of the bill in the special session that starts next week; it remains to be seen whether the Supreme Court decision will induce Republicans to favor an even more restrictive bill.Lt. Gov. Dan Patrick and State Representative Briscoe Cain, both Republicans, did not respond to requests for comment. Speaker Dan Phelan and State Senator Bryan Hughes, both Republicans, declined to comment.But whether the Supreme Court decision will open the floodgates for more restrictive voting legislation in other states remains an open question; more than 30 state legislatures have adjourned for the year, and others have already passed their voting laws.“It’s hard to imagine what a spike in voting restrictions would look like now, because we are already seeing such a dramatic surge, more than at any time since Reconstruction,” said Wendy Weiser, the director of the Democracy Program at the Brennan Center for Justice, a research institute. “But passing new waves of legislation has certainly been the response in recent years.”Gov. Tony Evers of Wisconsin is one of the Democratic governors who are holding off voting measures passed by Republican-led legislatures. On Wednesday, he vetoed the first of several pieces of Republican legislation on the electoral process.In an interview, he said Republicans’ monthslong effort to relitigate the 2020 election had had the effect of placing voting rights on the level of health care and education among the top priorities of Wisconsin voters.“It’s rising up as far as people’s recognizing that it’s an important issue,” Mr. Evers said. “They brought it on themselves, frankly, the Republicans have. I don’t think the people of Wisconsin thought the election was stolen. They understand that it was a fair election. And so the Republicans’ inability to accept Donald Trump’s loss is making it more of a bread-and-butter issue here.” More

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      The Supreme Court Is Putting Democracy at Risk

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      In two disturbing rulings closing out the Supreme Court’s term, the court’s six-justice conservative majority, over the loud protests of its three-liberal minority, has shown itself hostile to American democracy.In one case, Brnovich v. Democratic National Committee, the court has weakened the last remaining legal tool for protecting minority voters in federal courts from a new wave of legislation seeking to suppress the vote that is emanating from Republican-controlled states. In the other, Americans for Prosperity v. Bonta, the court has laid the groundwork for lower courts to strike down campaign finance disclosure laws and laws that limit campaign contributions to federal, state and local candidates.The court is putting our democratic form of government at risk not only in these two decisions but in its overall course over the past few decades.Let’s begin with voting rights. In Brnovich, the court, in an opinion written by Justice Samuel Alito, held that two Arizona rules — one that does not count votes for any office cast by a voter in the wrong precinct and another that prevents third-party collection of absentee ballots (sometimes pejoratively referred to by Donald Trump and his allies as ballot harvesting) — do not violate Section 2 of the Voting Rights Act.Section 2 is supposed to guarantee that minority voters have the same opportunity as other voters to participate in the political process and to elect representatives of their choice. The evidence presented to the court showed that minority voters were much more likely to have their votes thrown out than white voters for out-of-precinct voting and that Native Americans — because many live on large reservations — were less likely to vote in the absence of help with ballot collection.That the conservative majority of justices on the Supreme Court found that these rules did not violate Section 2 is unsurprising. Compared to other laws making it harder to register and to vote, such as strict voter identification provisions, these were relatively tame. In fact, some voting rights lawyers were unhappy that the Democratic National Committee pushed this case aggressively; minority voters have had some success using Section 2 in the lower courts, even getting the very conservative U.S. Court of Appeals for the Fifth Circuit to strike down Texas’ voter ID law, one of the strictest in the nation. The concern was that the Supreme Court would mess up this track for protecting voting rights.And mess it up it did. The real significance of Brnovich is what the court says about how Section 2 applies to suppressive voting rules. Rather than focus on whether a law has a disparate impact on minority voters, as Justice Elena Kagan urged in her dissent, the court put a huge thumb on the scale in favor of restrictive state voting rules.Thanks to Brnovich, a state can now assert an interest in preventing fraud to justify a law without proving that fraud is actually a serious risk, but at the same time, minority voters have a high burden: They must show that the state has imposed more than the “usual burdens of voting.” Justice Alito specifically referred to voting laws in effect in 1982 as the benchmark, a period when early and absentee voting were scarce and registration was much more onerous in many states.It is hard to see what laws would be so burdensome that they would flunk the majority’s lax test. A ban on Sunday voting despite African American and other religious voters doing “souls to the polls” drives after church? New strict identification requirements for those voting by mail? More frequent voter purges? All would probably be OK under the court’s new test as long as there are still some opportunities for minority citizens to vote — somewhere, somehow.What’s worse, the court did not decide Brnovich in a vacuum but after two other significant decisions that undermined the fight against restrictive voting rules. In a 2008 decision, Crawford v. Marion County Election Board, the court again put a thumb on the scale favoring a state’s restrictive laws when it upheld Indiana’s voter identification law against an argument that it violated the equal protection clause of the 14th Amendment. And in the infamous 2013 Shelby County v. Holder case, the court killed off the part of the Voting Rights Act that required states and other jurisdictions with a history of racial discrimination in voting to get approval before they could adopt laws that could burden minority voters.We were assured back then not to worry about the loss of this preclearance provision because there was always Section 2 to fall back on. So much for that. There are now fewer and fewer tools with which to fight suppressive voting rules in the federal courts.And Justice Alito ended with a shot across the bow for Congress, should it consider amending the Voting Rights Act to provide an easier standard for minority plaintiffs to meet, such as Justice Kagan’s disparate impact test in dissent. Such a test, he wrote, would “deprive the states of their authority to establish nondiscriminatory voting rules,” potentially in violation of the Constitution.The news on the campaign finance front is almost as dire. In the Americans for Prosperity case, the court considered a law that required charities to disclose their donors in reports filed with the government of California. The state wanted the information for law enforcement purposes, to ferret out fraud by charities, and by law, the information was not supposed to be publicly released. Unfortunately, California had leaks, and some of the information was disclosed. The groups challenging the law said compelled disclosure of their donors violated their First Amendment rights. They put forth evidence that their donors faced danger of harassment if they were revealed. The court had long held that those who face such a danger can be exempt from disclosure rules.Once again, it is unsurprising that this particular conservative majority on the Supreme Court sided with these conservative charities. And had the court said only that California’s law as applied to those facing a threat of harassment was unconstitutional, it would have been no big deal. But the majority opinion, by Chief Justice John Roberts, is much more troubling. The court held the disclosure law could not be applied to anyone, even those not facing a risk of harassment. He also rejiggered the First Amendment standards to call many other laws into question.In the Americans for Prosperity case, he redefined the “exacting scrutiny” standard to judge the constitutionality of disclosure laws so that the government must show its law is “narrowly tailored” to an important government interest. This makes it more like strict scrutiny and more likely that disclosure laws will be struck down. As Justice Sonia Sotomayor wrote in her dissent, “Today’s analysis marks reporting and disclosure requirements with a bull’s-eye.”The court’s ruling calls into question a number of campaign finance disclosure laws. Perhaps even more significant, it also threatens the constitutionality of campaign contribution laws, which are judged under the “exacting scrutiny” standard, too. Lower courts can now find that such laws are not narrowly tailored to prevent corruption or its appearance or do not provide voters with valuable information — two interests the court recognized in the past to justify campaign laws. A requirement to disclose a $200 contribution? A $500 campaign contribution limit? Plaintiffs in future cases are likely to argue that laws targeting small contributions for disclosure or imposing low contribution limits are not “narrowly tailored” enough to deter corruption or give voters valuable information, even if Congress or a state or municipality found such laws necessary.And that’s a key point. As in Shelby County and in the 2010 Citizens United case, which struck down Congress’s limit on corporate campaign spending, this conservative Supreme Court in today’s rulings shows no deference to democracy-enhancing laws passed by Congress, states or local governments.Justice Kagan’s Brnovich dissent is passionate about the majority’s failure to defer to Congress’s determination that minority voters need protection. Instead, the majority showed undue deference to democracy-reducing laws passed by states and localities.If you put the Brnovich and Americans for Prosperity cases together, the court is making it easier for states to pass repressive voting laws and easier for undisclosed donors and big money to influence election outcomes.It is too much to ask for the Supreme Court to be the main protector of American democracy. But it should not be too much to ask that the court not be one of the major impediments.Richard L. Hasen (@rickhasen) is a professor of law and political science at the University of California, Irvine, and the author of “Election Meltdown: Dirty Tricks, Distrust and the Threat to American Democracy.”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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      Supreme Court Upholds Arizona Voting Restrictions

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      The decision, a test of what remains of the Voting Rights Act, suggested that challenges to many new measures making it harder to vote may not be successful.WASHINGTON — The Supreme Court on Thursday upheld voting restrictions in Arizona and signaled that challenges to new state laws making it harder to vote would face a hostile reception from a majority of the justices.The vote was 6 to 3, with the court’s three liberal members in dissent.The decision was the court’s first consideration of how a crucial part of the Voting Rights Act of 1965 applies to voting restrictions that have a disproportionate impact on members of minority groups, and it was issued as disputes over voting rights have taken center stage in American politics.As Republican-controlled state legislatures increasingly seek to impose restrictive new voting rules, Democrats and civil rights groups have turned to the courts to argue that Republicans are trying to suppress the vote, thwart the will of the majority and deny equal access to minority voters. The decision suggested that the Supreme Court would not be inclined to strike down many of the measures.The larger message of the ruling was that the Voting Rights Act of 1965, hobbled after the Supreme Court in 2013 effectively struck down its central provision, retains only limited power to combat voting restrictions said to disproportionately affect minority voters’ access to the polls.The 2013 decision, Shelby County v. Holder, concerned the law’s Section 5, which required prior federal approval of changes to voting procedures in parts of the country with a history of racial and other discrimination. But Chief Justice John G. Roberts Jr.’s majority opinion said the law’s Section 2 would remain in place to protect voting rights by allowing litigation after the fact.While Section 5 was available, Section 2 was used mostly in redistricting cases, where the question was whether voting maps had unlawfully diluted minority voting power. Its role in testing restrictions on the denial of the right to vote itself has been subject to much less attention.The new case, Brnovich v. Democratic National Committee, No. 19-1257, concerned two kinds of voting restrictions in Arizona. One required election officials to discard ballots cast at the wrong precinct. The other made it a crime for campaign workers, community activists and most other people to collect ballots for delivery to polling places, a practice critics call “ballot harvesting.” The law made exceptions for family members, caregivers and election officials.The larger battle in the case was not whether the particular challenged restrictions should survive. The Biden administration, for instance, told the justices in an unusual letter that the Arizona measures did not violate Section 2. But the letter disavowed the Trump administration’s interpretation of Section 2, which would have limited its availability to test the lawfulness of all sorts of voting restrictions.Section 2 bars any voting procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That happens, the provision goes on, when, “based on the totality of circumstances,” racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”Tracking the Major Supreme Court Decisions This TermPublic opinion is closely divided on health care, voting, religion and gay rights cases.The Arizona case was filed by the Democratic National Committee in 2016. Last year, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that both Arizona restrictions violated Section 2 because they disproportionately disadvantaged minority voters.In 2016, Black, Latino and Native American voters were about twice as likely to cast ballots in the wrong precinct as were white voters, Judge William A. Fletcher wrote for the majority in the 7-to-4 decision. Among the reasons for this, he said, were “frequent changes in polling locations; confusing placement of polling locations; and high rates of residential mobility.”Similarly, he wrote, the ban on ballot collectors had an outsize effect on minority voters, who use ballot collection services far more than white voters because they are more likely to be poor, older, homebound or disabled; to lack reliable transportation, child care and mail service; and to need help understanding voting rules.Judge Fletcher added that “there is no evidence of any fraud in the long history of third-party ballot collection in Arizona.”In dissent, four judges wrote that the state’s restrictions were commonplace, supported by common sense and applied neutrally to all voters.Lawmakers were entitled to try to prevent potential fraud, Judge Diarmuid F. O’Scannlain wrote. “Given its interest in addressing its valid concerns of voter fraud,” he wrote, “Arizona was free to enact prophylactic measures even though no evidence of actual voter fraud was before the legislature.”The appeals court stayed its ruling, and the restrictions were in place for the election last November. More