Monthly Archives: July 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’t 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

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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’s 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.”

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—that 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