Biden’s First Year: His Successes Seem Weighted Down by His Failures

President Joe Biden has been in office for a whole year now.  He successfully got Congress to pass two major spending bills, one for COVID relief early in the year and one for infrastructure in the fall.  Unemployment is down.  Even so, his approval rating is around 42% now, and many are questioning his effectiveness as a leader.  This article in Politico by Jonathan Lemire discusses his current situation.

Article in Politico, January 19, 2022

January 6 Anniversary: Biden and Trump on This Occasion

On the first anniversary of the violent insurrection at the Capitol building that grew out of Trump’s “Stop the Steal” rally, Vice President Harris and President Biden spoke of the threat to democracy posed by the lie that the election was stolen.¬† Harris spoke of the importance of passing federal voting rights legislation (which is up against some serious obstacles), and Biden went on at great length about Trump’s actions that day, including the fact that he sat back and did nothing about it for at least a couple of hours while knowing it was going on.

My fellow Americans in life, there’s truth. And tragically, there are lies. Lies conceived and spread for profit and power. We must be absolutely clear about what is true and what is a lie. And here’s the truth: the former president of the United States of America has created and spread a web of lies about the 2020 election. He’s done so because he values power over principle.

Because he sees his own interest as more important than his country’s interest and America’s interest. And because his bruised ego matters more to him than our democracy or our constitution. He can’t accept he lost. Even though that’s what 93 United States senators, his own attorney general, his own vice president, governors and state officials in every battleground state have all said: he lost. (Video of Harris and Biden’s speeches at C-Span) (Transcript of Biden’s speech at NPR)

Trump was planning to hold a press conference today at Mar-a-lago, but he canceled it, giving this as an explanation:

In light of the total bias and dishonesty of the January 6th Unselect Committee of Democrats, two failed Republicans, and the Fake News Media, I am canceling the January 6th Press Conference at Mar-a-Lago on Thursday, and instead will discuss many of those important topics at my rally on Saturday, January 15th, in Arizona‚ÄĒIt will be a big crowd!¬† (Story on CBS News, January 5, 2022)

Holding that press conference today would have been in shockingly bad taste even for Trump–again,¬†even for Trump–but he is obviously going to continue insisting that the election was stolen from him and doing everything he can to punish Republicans who have not stood by him as he has made that false claim.¬† He’s holding a big gala fundraiser/forum at Mar-a-Lago in February, to help shore up the campaigns of the candidates he is endorsing in Republicans primaries around the country, candidates who are loyal to him and running against Republicans who are not. (New York Times article via Yahoo! News, January 5, 2022)¬† Meanwhile, a number of individuals from Trump’s own administration are getting together to see how they can stop him from getting back into the White House.¬† (Article on Politico.com, January 6, 2022)

Further commentary about Biden’s speech on Politico.com, January 6, 2022

NPR report on the timeline of the events of that day, January 3, 2022

Looking Ahead to This Year’s Congressional Elections

As we’re aware, the Democrats currently have a slim majority in the House of Representatives and a precarious majority in the Senate that is only made possible by Vice President Harris casting the tie-breaking vote where there are 50 Republicans and 50 Democrats (technically, 48 Democrats and two Independents who caucus with the Democrats).¬† This coming November, there is a midterm round of congressional elections.¬† Obviously, both parties are striving hard to have the majority in both chambers of Congress in these elections.¬† With that in mind, I want to make you aware of a website that is tracking the races in both chambers.

First, let’s consider the Senate.¬† Please click this link.¬† It needs to be remembered that one-third of Senate seats come up for election every two years.¬† This year, there are 34 Senate elections.¬† Of those 34, as seen on this interactive map, there are 9 seats that are considered secure wins for the Democrats, 2 seats that are considered probable wins for the Democrats (one more so than the other), 14 seats that are considered secure wins for the Republicans, 3 seats that are considered probable wins for the Republicans (2 more so than the third), and–here’s the significant part now–6 seats that are considered highly competitive, seats that could swing either way.¬† Those seats are the ones in Pennsylvania, Wisconsin, North Carolina, Georgia, Arizona, and Nevada.¬† Of those six states, all except North Carolina went for Biden in 2020, but that does not mean anything definitive.¬† These are¬†ALL¬†states that went for Trump in 2016.

Now, the House.¬† Please click this link now. A key complicating factor is that as a result of the 2020 census, the districts are being redrawn, and in some states that process still hasn’t been completed, which means we still don’t know exactly what the House districts are going to be.¬† In the House, every district comes up for election every two years, and this website provides a list of 33 seats that are considered highly competitive.

In a number of these races, there are going to be primary election battles between the Trump loyalists and anti-Trump Republicans, and at present, it’s the Trump loyalists who are most likely to win Republican primaries, because the majority of Republican voters still favor Trump and think that a good Republican is one who is loyal to Trump.¬† How that will affect the general elections remains to be seen.¬† Republicans are still able to win votes on “culture wars” issues, like the belief that the Democrats want to teach so-called “critical race theory” in the public school classrooms.¬† Aside from that, it also needs to be remembered that the president’s party typically loses seats in Congress in midterm elections, and we currently have a Democratic president with an approval rating hovering at around 42%, pretty much were Trump was for much of his presidency.

Both parties are going to be treating these elections as vital, and we can definitely expect a lot of political drama this year surrounding them.  Be sure to follow closely, and feel free to post your thoughts on the OpenLab discussion board any time.

 

 

 

Update: Federal Vaccine Mandate for Workers Is Back On

Some weeks ago in my fall semester American Government classes, we took a close look at this ruling by the Fifth Circuit Court of Appeals in Louisiana, in which that court blocked from taking effect OSHA’s new regulation requiring either vaccine or COVID tests in for workers whose employers had 100 or more employees.¬† In that ruling, the appeals court found that OSHA, a regulatory agency under the Department of Labor, had exceeded its power to issue emergency regulations and that the federal government as a whole had exceeded its power under the interstate commerce clause to regulate private business.¬† But on December 17, another appeals court–the Sixth Circuit, in Ohio–reversed that ruling, reinstating OSHA’s mandate.¬† (Here is that ruling.)

Before an issue gets to the Supreme Court, lower courts have a way of resembling two or more kids playing in a room where there’s more than one switch for the ceiling light:¬† one kid turns it on; another kid, at another switch, turns it right back off.¬† In this instance, because there were multiple cases in different districts and circuits challenging the OSHA regulation, a special panel that handles that kind of situation invoked the lottery system, where one circuit court would be chosen to handle the consolidation of all of those cases.¬† The Sixth Circuit won the lottery and thus got to make this ruling.¬† They’re still hearing the merits of the case, and it’s pretty clear that the Supreme Court will have the final word on the issue.

Meanwhile, a district court in Louisiana has ruled that Biden exceeded his authority when he ordered Head Start teachers vaccinated and ordered the Head Start pupils to be masked.¬† Head Start is a federally funded program providing preschool education to low-income children; it is a creation of Lyndon B. Johnson’s Great Society.¬† As with the other issue, this one involves a suit brought by multiple states.¬† Thus, the dynamics of federalism, that is, the relationship (often conflictual) between national and state levels of government, and of checks and balances, the ways that the three branches of the federal government limit each other’s power, are alive and well in this COVID crisis.

Reuters article about the Sixth Circuit ruling, December 17, 2021

Yahoo! article about the Head Start ruling, January 1, 2022

Manchin Seems to Have Thrown Build Back Better out the Window

It should be remembered that there were two ambitious spending bills before Congress this year: the bipartisan infrastructure bill, mostly about roads, rails, and broadband, which both chambers of Congress passed with some Republican support and Biden signed.  In the Senate, of course, a bipartisan bill needs ten Republicans to overcome a filibuster, and this bill had the votes of nineteen Republicans as well as all of the Senate Democrats, including the two difficult moderates, Senator Joe Manchin of West Virginia and Senator Kyrsten Sinema of Arizona.  But the Build Back Better act was a whole other story.

The Build Back Better act had many provisions that come more in the category of social welfare than what is usually referred to as infrastructure.¬† Manchin and Sinema weren’t adamantly against this bill; they just wanted it scaled down.¬† But for the last few weeks, while Sinema appears to have come on board, it’s been harder and harder for Democrats to understand exactly what it will take to make this bill palatable to Manchin.¬† And now, on Sunday, December 19, Manchin said in a Fox News interview that he’s not voting for it.

Manchin’s announcement blindsided President Biden and many other Democrats, who thought that they were coming closer and closer to reaching an agreement with Manchin.¬† Now, Democrats in the Congress are in two camps: those who want to keep on trying to come to an agreement with Manchin, and those who want to give up on Manchin and just have Biden do what he can with executive orders.¬† The trouble is, what Biden can do with executive orders is limited.¬† He’s already, though regulatory agencies, calling for higher green standards with new automobiles in the coming years (climate change was a major priority in the BBB bill), but regulations like this can easily be reversed when a new president comes in.

Some of the Progressives, of course, didn’t even want to pass the bipartisan infrastructure bill if it wasn’t accompanied by BBB, and now they’re saying “I told you so.”¬† (Rep. Alexandria Ocasio-Cortez is one of the ones saying that.)

There is, of course, a new session of Congress starting in January, but as I keep saying, all it takes is one Democrat in the Senate to die and not be replaced by another Democrat for the party to lose its precarious 50-50 + 1 majority.

Article in Politico, December 20, 2021

Article in Politico, December 20, 2021

Description of Build Back Better, as passed by the House in November

Description of Bipartisan Infrastructure Act, as signed by Biden in November

The Trump Era Is Far from Over

On Saturday, October 9, 2021, former president Donald Trump held a rally in Des Moines, Iowa.¬† It needs to be remembered that the Iowa caucus is the first event in the quadrienniel presidential primary season, which means that Iowa, like New Hampshire (which has the first primary election a week later), gets a disproportionate amount of attention from prospective contenders for president.¬† And there is every sign that Trump plans to run again in 2024; the fact that he hasn’t made it official means nothing, because before he makes it official, he can do all the things that a confirmed candidate can do–and with a lot more freedom from election law scrutiny.

Trump went on about the failings of the Biden administration, said he and his supporters were going to “take America back” and “make America great again again,” and all the rest of the usual, but I want to put the spotlight on one particular moment at that rally:¬† his exchange with Senator Chuck Grassley of Iowa.¬† Grassley is 88 years old and has been in the Senate since 1981.¬† He’s running for re-election next year.¬† Trump, at the rally, announced that Grassley had his full endorsement, and here is what Grassley said in response:

I was born at night, but not last night. So if I didn’t accept the endorsement of a person that’s got 91 percent of the Republican voters in Iowa, I wouldn’t be too smart. I’m smart enough to accept that endorsement.

In other words, Grassley does not want to be primaried.¬† Indeed, for the past few years¬†primary¬†has been a verb.¬† To¬†primary¬†an officeholder is to oppose that officeholder in the primary election of that officeholder’s own party.¬† And indeed, Grassley knows that if he doesn’t cozy up to Trump, Trump will endorse a challenger to Grassley in the Republican primary for Senate next year, and (unless Iowa’s Republicans have stopped loving Trump by then) Grassley will be defeated.¬† And Grassley does not want to be defeated.

Nationwide, Trump has the enthusiastic support of a great majority of Republican voters–including many who were posting memes on Facebook against him in the early stages of the 2016 primaries.¬† Trump’s support base therefore wants Republican officeholders to be not only loyal to the ideology of the party, but personally loyal to Donald Trump.¬† This is very out of the ordinary; this is very bizarre.¬† When you look at Trump’s character and conduct, it becomes even more bizarre.¬† But it’s not showing any signs of abating.¬† And because he has such a hold on the loyalty of the Republican electorate, Republican officeholders and candidates who under other circumstances would not give the time of day to the likes of Trump are scrambling to make sure he knows he has their loyalty.¬† This is why Representative Liz Cheney of Wyoming, who has been consistently loyal to the ideology of her Republican Party, got removed from her leadership position in the House and has been subject to a lot of flak from the Republicans in her state for voting to impeach Trump after the January¬† 6 insurrection.

What makes the situation particularly bizarre is that to be loyal to Trump means to buy into his utterly false claims that the 2020 election was stolen.¬† I’m not expressing a political opinion when I say that; I’m stating a fact.¬† The election was not stolen, Biden won it legitimately, and while we can differ over whether we’re happy about the outcome, there aren’t two sides to the fact that that¬†is¬†the outcome.¬† Moreover, it is a fact that in the weeks following the election, Trump was trying to plead with and pressure both state and federal officials, including his own attorney general, to find some loophole, some string they could pull, to make him the winner.¬† He fired Attorney General Bill Barr when Barr told him he could find no credible evidence of election fraud, and he called Vice President Mike Pence a pussy for not trying to overturn the results on January 6 in the Senate.¬† Moreover, on January 6, even if you look at Trump’s conduct in the manner most favorable to Trump, you’re still left with the fact that he organized a rally based on the false claim that the election was stolen, and he dispatched the ralliers to stand outside the Capitol and shout loudly to the lawmakers that they should invalidate the results of the election.¬† There’s political ideology, and then there’s conduct.¬† The fact that so many millions of Americans think this conduct on the part of the president is all right is just bizarre.

Next year’s midterm congressional elections are on everybody’s mind.¬† It needs to be remembered that in midterm congressional elections, the president’s party usually loses seats in both chambers of Congress.¬† In the case of the Senate, the Democrats can’t afford to lose even one seat without losing their precarious majority (a majority that is only made possible by Vice President Harris’s tie-breaking vote).¬† In the House, the Democrats already lost some seats in the most recent election, and are ahead by only a handful of seats now.¬† If the Republicans flip the House back, Kevin McCarthy, who is steadfastly loyal to Trump despite having had a moment of showing anger at him in the January 6 insurrection, will become Speaker.¬† If the Republicans take the Senate, Mitch McConnell will return to the position of Majority Leader.¬† McConnell and Trump actually don’t like each other very much, but McConnell doesn’t stick his neck out far to oppose Trump, and in any case McConnell’s seat in the Senate is safe till the election of 2026.

On top of the odds usually being against the president’s party in midterm elections, there’s the fact that Biden’s popularity is sagging.¬† His approval rating was in the 50s a few months ago (higher than Trump’s ever got), but it’s been down in the 40s in recent times, on a par with Trump’s average.¬† A lot of things influence congressional elections, so they could still go either way, but definitely, the Democrats have an uphill battle, and they can be sure that the Republicans won’t be playing softball in next year’s races.

When things are normal, the difference between the parties is a matter of ideology: differing opinions about what the role of the government should be, opinions about what public policy should be on this or that issue.  But things are not normal now.  One party has become dominated by a cult of personality, and is being controlled by a narcissistic loose cannon who panders to prejudice and to belief in wild conspiracy theories.  And that party may well be about to come back into power.  So indeed, the Trump era is far from over.

Chuck Grassley’s words at that rally can be heard in this NPR report, October 11, 2021.

Article about the rally in the Des Moines Register, October 9, 2021.

Standing to Sue: A Brief Post-Script

Over the years, I have spoken the following words to numerous American Government classes:

If you go into the legal profession, and if you are ever working for an interest group and using litigation to achieve policy goals from court rulings, make sure that you have a plaintiff with an actual “standing to sue,” because no matter how good your arguments are, the case can get thrown out if you don’t have that.

I’ve been reflecting on that in relation to the new Texas law, because that law totally subverts that concept by making it possible for anybody who disapproves of abortion to file suit against an abortion doctor, or against anybody who aids and abets an abortion in any way (like giving a woman a ride to the abortion clinic, or paying for the abortion) and collect $10,000 for doing so.¬† The question is, how can this be possible?

I’m looking into the question, so this post is merely a progress report on what I’ve found so far.¬† What I’ve found so far is that the Supreme Court has made itself very clear on “standing to sue,” but only (as far as I know) as far as federal cases are concerned.¬† In the 2016 decision¬†Spokeo v. Robins, the Court noted that Article III of the Constitution assigns federal judicial power over “cases” and “controversies” and says that limiting the power of the judiciary to resolving cases and controversies is crucial to preserving the balance of power among the three branches and the limits of the judicial branch’s power. Justice Alito, in that ruling, wrote:

Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood…. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong….

Our cases have established that the “irreducible constitutional minimum” of standing consists of three elements….¬†The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.

Alito cites a number of precedents, most notably Lujan v. Defenders of Wildlife (1992) and Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2000).

But again, that’s just for the federal courts.¬† There are two questions that I don’t know the answer to, in this regard:¬† (1) Is there any case law precedent that empowers the federal courts to apply this principle to state courts?¬† (2) Is there a body of case law precedent at the state level in Texas that would facilitate getting this law challenged in a Texas state court on the basis of “standing to sue”?¬† I’m still working on how to find out those two things.¬† But in any event, it certainly goes against years, probably centuries, of judicial tradition for there to be a law that empowers any ordinary person to file suit against another on the mere basis of personal disapproval of an action committed by that other person.

A New Chapter Begins in the Abortion Fight

First, the basics of the new Texas law:

  1. It’s illegal to perform an abortion in the state, or to aid and abet someone getting an abortion in the state, after the sixth week of pregnancy.
  2. State authorities are not the enforcers, and it’s not the criminal courts that will hear the cases.¬† Rather, it’s for the civil courts.
  3. Now, here is the kicker:  anybody can file suit against an abortion provider who violates this law.  If the plaintiff prevails, the defendant is liable for $10,000 in damages plus court fees.  (But only one plaintiff is entitled to sue for one abortion.)
  4. The woman who gets the abortion is not liable, but if someone pays for her abortion, either an insurance company or a friend, the payer is liable for aiding and abetting.

The Supreme Court refused to block the law from going into effect.¬† In a 5-4 decision, the majority made clear that this was not a ruling on the merits of the law, but rather, the Court declined on procedural grounds.¬† Here’s an excerpt:

[F]ederal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves…. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention…. The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas‚Äôs law.

This law would appear to be constitutionally problematic on a number of counts.¬† Obviously, it totally flies in the face of the 1973¬†Roe v. Wade decision, which ruled that states can’t interfere with the right to an abortion during the first trimester, and can only regulate abortion in the second trimester for reasons of medical safety.¬† Subsequent rulings have struck down laws that placed an “undue burden” on women seeking abortions.¬† But there’s another big problem that should get some attention from the courts:¬† What ever happened to “standing to sue”?¬† One of the basic textbook principles of the judiciary is that you can only file suit if you can show that you yourself have been injured by the action that you’re challenging.¬† It takes more than an opinion to justify filing suit.¬† But according to this law, any anti-abortion activist can bring any doctor to court (or any friend of a woman getting an abortion who helps her pay for it) and get $10,000.¬† Again, what ever happened to “standing to sue”?

It’s not clear what the ultimate fate of this law will be.¬† At the moment, abortion providers in Texas seem inclined to simply obey the new law, much as they deplore it.¬† If the law is going to be challenged effectively, it’s probably going to take a doctor willing to break the law, be sued, receive a judgment ordering to pay $10,000, and then appeal it to the federal courts.

But it needs to be remembered that there are six justices on the Court who disapprove of Roe v. Wade, and at least five seem in favor of overturning it.

There are other states with tough new abortion laws that got passed after Trump appointed his second justice, Brett Kavanaugh, to the Court.¬† The Supreme Court has already agreed to hear a case involving Mississippi’s fifteen-week law.

Full text of the Texas law

Full text of the Supreme Court decision and the dissenting opinions

Article on the Texas law at SCOTUSBLOG, September 1, 2021

Article on the Mississippi law and related case at SCOTUSBLOG, May 17, 2021

 

 

 

House Investigation of January 6 Riot Begins

I want to start by saying a few words about the difference between political opinion and truth.¬† Democrats and Republicans usually differ from each other on what should be the role of the government in social welfare and other matters.¬† They differ on policy preferences.¬† And when we talk about who’s right and who’s wrong, we’re expressing political opinions.¬† We may at times be very unhappy about the policies that get enacted, or that don’t get enacted, but that’s still political opinion.¬† When things are normal, the worst that members of one party can say about those of the other party is that they have bad political opinions, where “bad” means “different from mine.”¬† That’s political opinion.

But the conflicts surrounding the events of January 6 are not matters of political opinion, but rather, matters of truth versus falsehood.¬† It is a fact that Joe Biden won the election.¬† Being glad or sorry that he won is political opinion, but it is a fact that he won.¬† It is, therefore, a fact that Donald Trump, in the rally that he held that day, when he claimed that the election had been fraudulent and that he was the real winner, was spouting falsehoods.¬† He also seemed to believe–falsely–that there was some way that Vice President Pence could change the election results, and that it was a simple matter of whether Pence was going to be a “patriot” or a “pussy” (Trump’s words, and not the first time we’ve heard him say that latter word).¬† Moreover, he clearly wanted the crowd at the rally to try to pressure members of Congress into reversing the election results.

Maybe Trump didn’t expect the crowd to attack the Capitol physically.¬† Maybe all he wanted them to do was stand outside and shout.¬† He was still encouraging contempt for the election process.¬† It was not the job of Congress that day to vote on whom they wanted for a president.¬† It was their job to¬†count¬†the electoral votes that had been certified and submitted by the states.¬† So regardless of political opinion, it’s really rather hard to justify any aspect of Trump’s behavior that day–even if one doesn’t think he was expecting the crowd to attack the Capitol.¬† (His initial way of asking them to stop the attack, by the way, was to say “This was a fraudulent election. But we can‚Äôt play into the hands of these people. We have to have peace. So go home. We love you, you’re very special.”)

In any event, a violent attack did occur, with many of the rioters being not only Trump supporters but white nationalist extremists.¬† Several people died, and many other people’s lives were put in danger, including Capitol law enforcement officers and also including members of Congress who were assembled to count and make official the election results.¬† Ultimately, the results were certified, but with six Republican senators and one hundred twenty-one Republican representatives voting against accepting the results.¬† Again, they weren’t voting on whether they¬†liked¬†the results; these dissenters were actually siding with the Trump view that the results were illegitimate.

In recent weeks, the Democrats in Congress tried to create a bipartisan commission to investigate what happened.¬† Be clear: The point of a bipartisan commission, whose members would not be senators and representatives, was to have an investigative body that would not be controlled by political allegiance, whose mission would be to sift through the evidence and let the chips fall where they may.¬† Republicans in Congress, influenced by Trump, did not go along with the plan, and so it didn’t happen.

Then, the Democrats in the House voted to set up a House committee to conduct the investigation.¬† The original idea was for there to be eight members appointed by House Speaker Nancy Pelosi and five members nominated by Republican Minority Leader Kevin McCarthy, subject to Speaker Pelosi’s approval.¬† Pelosi chose her eight:¬† seven Democrats plus conservative Republican Liz Cheney, who voted with the Democrats for Trump’s impeachment and has been a vocal critic of Trump’s behavior in the affair.¬† Then McCarthy put forward his five picks:¬† five Republicans, including two who had voted to reject the election results: Jim Jordan and Jim Banks.¬† Pelosi refused to let Jordan and Banks be on the panel, whereupon McCarthy refused to have any of his other appointees on the panel either.¬† Pelosi added another Republican to the panel: Adam Kinzinger.¬† Like Liz Cheney, he is a conservative who voted for Trump to be impeached.

So now the special committee has nine members:¬† seven Democrats and two Republicans.¬† Cheney and Kinzinger have very different political opinions from the seven Democrats on the panel, but they all agree that Trump’s behavior that day was not all right.¬† As for Jordan and Banks, well, undoubtedly from McCarthy’s point of view, putting them on the committee represented “balance”; he apparently wanted the view that the election was stolen to be represented on that committee.¬† But it raises an interesting philosophical question:¬† how much balance do you need between truth and falsehood?

The hearings have begun.

NPR report, July 27, 2021

More from NPR

More from NPR

Article in Politico, July 27, 2021

For your convenience, this OpenLab site is equipped with news updates at the right of the page, so you can keep on checking back for more.

 

Another Conservative Voting Rights Decision by the Supreme Court

It should be remembered that back in 2013, the Supreme Court ruled in¬†Shelby County, Alabama, v. Holder¬†that the section of the Voting Rights Act of 1965 requiring certain states to ask permission from the federal government to change their voting laws was no longer constitutional, on the grounds that the problems that existed in 1965 were no longer relevant.¬† In that decision, all five Republican appointees were in the majority and all four Democratic appointees on the Court were in the dissenting minority.¬† Now, there are six Republican appointees, three appointed by Trump, and this new ruling has all six of them voting that Arizona’s new voting laws are okay, and the three liberal justices feeling otherwise.

This case is¬†Brnovich v. Democratic National Committee.¬†¬†The DNC had successfully persuaded a lower court that Arizona’s new voting laws, because they were going to have the greatest impact on nonwhite voters, violated the Voting Rights Act of 1965, specifically the provision which states that “no voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” ¬†The suit specifically challenged two voting laws:¬† the law saying that ballots cast in the wrong precinct would not be counted even for offices not affected by precinct, and the law restricting who can collect and deliver a mail-in ballot (designed to prevent “ballot harvesting”).¬† But by a 6-3 majority, the Supreme Court ruled that those laws do not violate the Voting Rights Act.

The majority decision was written by Justice Samuel Alito.¬† He wrote that the state has a compelling interest in preventing voter fraud.¬† In response to the argument that no voter fraud was proven in the most recent election, Alito retorted that the state does not have to wait till voter fraud happens to pass laws to prevent it.¬† Moreover, he wrote, the Voting Rights Act has been interpreted as meaning that all persons must have equal access and opportunity to vote.¬† It is still inevitable that there have to be some voting laws, and any voting law is likely to impose some degree of burden or inconvenience on the voters, but that isn’t enough to make it an impermissible hindrance.¬† He then addressed racial inequality.

To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and noncompliance with voting rules. But the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote. The size of any disparity matters. And in assessing the size of any disparity, a meaningful comparison is essential. What are at bottom very small differences should not be artificially magnified.

Justice Elena Kagan wrote the dissent.¬† “Much of the Voting Rights Act‚Äôs success,” she opined, “lay in its capacity to meet ever-new forms of discrimination.”¬† She then quoted the late Justice Ruth Bader Ginsburg’s dissenting opinion in the¬†Shelby County¬†case: “Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place.‚ÄĚ

In recent months, State after State has taken up or enacted legislation erecting new barriers to voting…. Those laws shorten the time polls are open, both on Election Day and before. They impose new prerequisites to voting by mail, and shorten the windows to apply for and return mail ballots. They make it harder to register to vote, and easier to purge voters from the rolls. Two laws even ban handing out food or water to voters standing in line. Some of those restrictions may be lawful under the Voting Rights Act. But chances are that some have the kind of impact the Act was designed to prevent‚ÄĒthat they make the political process less open to minority voters than to others.

Arguing that the majority on the Court had not interpreted, but remade, the Voting Rights Act, she concluded:

The law that confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy; and now stands as the crucial tool to achieve that goal. That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court.

It should be noted that in this case, unlike in the 2013 Shelby County case, the Court did not strike down any part of the Voting Rights Act of 1965 as being unconstitutional.  It did, however, make it harder to apply to state laws that make it harder for persons who need a little extra prodding, a little extra convenience, or a little extra assistance to cast ballots in future elections.

Article in Politico, July 1, 2021

Full text of the ruling and the dissent