Bush v. Gore 2001 and the oringes of the “Independent State Legislature Doctrine”

Would it surprise anyone to learn that prior to the 2000 election, the one that the Supreme Court declared Bush/Cheney had won by 537 votes in Florida once they ordered vote recounting stopped, had seen 100,000 voters purged from the Florida voter rolls? Shades of candidate Brian Kemp using the power of his office to purge more Georgia voters than that when he narrowly defeated Stacey Abrams in Georgia. Voter purges alone will not allow the radical GOP to keep winning close elections.

The party that represents less than half the country needs a hard hitting legal theory that sounds damned constitutional, or at least is good enough for a Federalist Society 6-3 win on Biden’s high court, made the law of the land in a narrowly tailored, unappealable summary opinion by Boof Kavanaugh or fellow nonpartisan constitutional scholar Amy Coney Barrett. That’s where the so-called Independent State Legislature Doctrine comes in.

The Independent State Legislature Doctrine allows a minority party that controls a state by permissible partisan gerrymandering (6-3 says you have to prove the gerrymandering is intentionally racist to successfully challenge it, nothing wrong with partisan officials using their power to benefit their party) to overrule the will of the rest of the state’s voters, just like the Orange Polyp kept demanding after losing in 2020.

The great Jane Mayer traces the origins of this controversial theory from the unprecedented, one-off 5-4 party-line 2001 Supreme Court decision that gave the presidency to a man who’d lost the popular vote:

Like many conservatives of her generation, Cleta Mitchell was galvanized by the disputed 2000 election, in which George W. Bush and Al Gore battled for weeks over the outcome in Florida. She repeatedly spoke out on behalf of Bush, who won the state by only five hundred and thirty-seven votes. A dispute over recounts ended up at the Supreme Court.

Few people noticed at the time, but in that case, Bush v. Gore, Chief Justice William Rehnquist, along with Antonin Scalia and Clarence Thomas, hinted at a radical reading of the Constitution that, two decades later, undergirds many of the court challenges on behalf of Trump. In a concurring opinion, the Justices argued that state legislatures have the plenary power to run elections and can even pass laws giving themselves the right to appoint electors. Today, the so-called Independent Legislature Doctrine has informed Trump and the right’s attempts to use Republican-dominated state legislatures to overrule the popular will. Nathaniel Persily, an election-law expert at Stanford, told me, “It’s giving intellectual respectability to an otherwise insane, anti-democratic argument.”

Barack Obama’s election in 2008 made plain that the voting-rights wars were fueled, in no small part, by racial animus. Bigoted conspiracists, including Trump, spent years trying to undermine the result by falsely claiming that Obama wasn’t born in America. Birtherism, which attempted to undercut a landmark election in which the turnout rate among Black voters nearly matched that of whites, was a progenitor of the Big Lie. As Penda Hair, a founder of the Advancement Project, a progressive voting-rights advocacy group, told me, conservatives were looking at Obama’s victory “and saying, ‘We’ve got to clamp things down’—they’d always tried to suppress the Black vote, but it was then that they came up with new schemes.” . . .

. . . In 2013, the Supreme Court struck down a key section of the Voting Rights Act, eliminating the Justice Department’s power to screen proposed changes to election procedures in states with discriminatory histories, one of which was Arizona. Terry Goddard, a former Arizona attorney general and a Democrat, told me that “the state has a history of voter suppression, especially against Native Americans.” Before Rehnquist became a Supreme Court Justice, in 1971, he lived in Arizona, where he was accused of administering literacy tests to voters of color. In the mid-two-thousands, Goddard recalled, Republican leaders erected many barriers aimed at deterring Latino voters, some of which the courts struck down. But the 2013 Supreme Court ruling initiated a new era of election manipulation.


And note the raft of voter suppression laws that were ready to become law in Republican controlled states immediately after John Roberts pulled that legally and ethically shaky Shelby County opinion out of his learned, corporate lawyer ass. Although he pretended Congress hadn’t studied a mass of recent data in many hearings before reauthorizing the Voting Rights with stunning bipartisan numbers, 98-0 in the Senate, and the law was enthusiastically signed by George Dubya Bush, Roberts rested his decision on the crackpot idea that racism is no longer a factor in American voting because we had elected a what used to be called mulatto president (was not Obama as white as he was Black? anywhere but in a racist society, the People rest).

the justices [three of the 5-4 majority in Bush v. Gore] argued that state legislatures have the plenary power to run elections and can even pass laws giving themselves the right to appoint electors

This is a quoted by Jennifer Rubin in her excellent recent op-ed in the Washington Post:

The benefit of technical arguments under the independent state legislature doctrine to subvert election results is that they have an aura of respectability and expertise. Lawyers in fine suits making legalistic arguments are much more appealing than desperate lawyers making unsubstantiated claims of ballot box stuffing and other chicanery. The doctrine would be a strong vehicle for a bloodless coup.

The theory reminds me of the one that says the vice-president, a candidate for re-election who has seemingly lost his bid, has the power to overrule the states trying to certify vote tallies that go against him. A good theory, I suppose, if you have a cushioned extremist majority on an ideologically packed Supreme Court, tens of millions of angry, credulous adrenalized citizens addicted to the incendiary outpourings of right wing mass media, a Department of Justice too high-minded to prosecute a powerful scofflaw demagogue who continues to spray gasoline on the many fires he set, and, in a pinch, a violent, well-funded mob ready to riot again any time they are called on to stand by. And when you’re a huge star, and the organizer, promoter and funder of a riot in the Capitol to forcibly stop the peaceful transfer of power, they let you do, it’s true, they let you do it!

From Heather Cox Richardson

For his part, Trump does not want to wait until 2022 for a change in government. On Friday, he wrote to Georgia Secretary of State Brad Raffensperger charging that 43,000 Georgia ballots were “invalid.” He called for Raffensperger to decertify the 2020 election “and announce the true winner,” warning that the nation “is being systematically destroyed by an illegitimate president and his administration.” 

Trump is under criminal investigation in Georgia for his previous attempts to overturn the state’s election results.


Department of Let’s Let Bygones be Bygones

Glenn Kirschner has been promoting the indisputable idea, with everything we’ve seen the last six years or so, where norms and all pretense of fair play are thrown into the shitter along with all other democratic values, that justice matters. “Justice matters” is Glenn’s mantra and coat of arms, and he’s been fighting a hard public fight to encourage his former employer, the US Department of Justice, to pursue accountability for crimes like Seditious Conspiracy for the conspirators who planned, funded and facilitated the January 6th MAGA riot.

Usually the man to turn to for encouragement after some really bad MAGA news, sometimes even Glenn Kirschner gets discouraged, which is heartbreaking to see, but at the same time, it shows that even the most dogged fighter for justice just gets frustrated and tired sometimes. Here he is asking a simple and basic question, and right back on the case the next day:

Here is the video the clip is from:

here is today’s:

A Prayer for My Mother

A friend sent me an interesting tale just now about being recruited, as a teenager in Israel, by some aggressive yeshiva types. After he caught a ride with a young, slightly hipsterish rabbi while hitchhiking back home, a carful of rabbis arrived at the kibbutz where he lived to try to convince him to join up with them.   There was a nice plot twist, when his communist father, also a traditional Jew in some sense, learned of the session in the car and got very worked up that his son would even give those bearded crackpots a hearing. He issued a stern warning about not letting them into his head.

Which reminded me of this story about my mother, and prayers.

My mother hated going to synagogue, which she found to be an empty exercise in conformity. Her funeral, which I conducted, was in a chapel at the Jewish Center in Peekskill, NY, the small town where my poor father was raised.   So it was natural to point out, to those assembled, (we were in that sanctuary because of my late father’s burial decisions [1]) the irony of ths memorial to my mother taking place in a setting she always avoided.   I told them about the last time my mother was in shul, a place I’d seen her maybe five times (if that) in my life, always for a bar mitzvah or wedding

There was a liberal firebrand rabbi in her area in Florida.   She was in a fairly liberal voting county but there were still plenty of jackasses who at that time supported Cheney and Bush, a “kinder gentler” (Bush’s father’s sales pitch for the new American Nazis) version of these outright klansman that run the Republican party now, and she was always pissed off about it and had no tolerance for her bigoted, shit-talking neighbors.   This rabbi wrote a column in the local paper that ripped Florida and national Republicans a couple of new assholes every week.  She loved the guy, he was witty and fierce and told it like it was, a clever, angry, intelligent breath of fresh air in a nation that was increasingly embracing jingoistic stupidity — and Florida seems to have a higher percentage of reactionary morons than most places she’d been.

A neighbor, a hateful old hag and fellow widow, knew of my mother’s admiration for this rabbi and showed her an item in the local paper that announced he was going to be speaking at the local synagogue at Friday night services.  So they went to the nearby synagogue on Friday night.  I hadn’t heard any follow up on her rabbi’s speech so I asked her about it.

“Oh, God, it was terrible!   They introduced him, he waved, and he just sat on the bima the whole time, never said a word.  There was no speech.  It was sickening, false advertising just to get people to go on Friday night, and, of course, they did every fucking prayer in that goddamned prayer book!”

At which point there was a loud collective guffaw from those assembled in the solemn First Hebrew Congregation of Peekskill chapel.  It was Evelyn to a tee.


My father, raised orthodox by a religious fanatic psychopath mother, gradually saw the religious aspect of his life fall away.  In the end he tasted pork in a Chinese restaurant (Szechuan shredded pork, a one time favorite of mine) and he liked it (though I think it was a one off) and as he was dying told me, when I asked him, that he didn’t care if I said kaddish for him or not.  I actually mumbled that solemn Aramaic poem for 30 days, though not in a minyan (the ten who constitute a quorum for traditional Jewish prayer), usually just standing around with Sekhnet who said it in unison with me.

Life ain’t nothing but a funny, funny riddle.  Thank God I’m a country boy!

Be very careful what you say when you’re hurt

“I don’t know what I did to make you treat me so unfairly and so disrespectfully,” while possibly accurate, is probably not the best line of approach when someone you love has treated you hurtfully.

If you have degenerative arthritis, say, and did not qualify, until a few weeks ago, for palliative injections that will allow you to exercise for six months without pain while building up surrounding muscle, why is that really anyone’s concern besides yours? Why would you expect automatic acknowledgment of your physical limitations and the empathy that follows from considering a loved one’s disability?

Say you feel wrongly accused of a flaw you try not to have, say in addition to an unreasonable expectation of sympathy, there’s the perception of your habitual comfort inconveniencing everyone around you. You like to sleep all day, so nobody can even be on the road for a vacation workout by a reasonable 10 a.m.

All these feelings, after someone shows you an implacable face, must be put to the side as you figure out the best way to restore trust and mutuality. It may take more patience than you have, particularly when you feel hurt, but that’s a separate question.

The real question is how to convey to them how hurt they would feel, placed in the unfair situation they’ve placed you in. That is not the work of a few minutes or a few hours, of simply choosing the right words. It requires a supremely patient telling of the right story, framed sympathetically, to keep everyone calm and help them understand.

It may take more patience than you feel you have. It becomes easy to think up past wrongs echoing the latest and be hurt by the confirmation of callousness, but making this list carries the risk of making you sound petty and prosecutorial. Best to focus on understanding, clarity and directness, toward a more loving future.

Otherwise, speaking out of pain, you are much more likely to do harm than to say anything that will contribute to healing or empathy.

Try writing the situation out first, it may help you grasp things better, to be more clear and better able to stay out of the many deadly traps hurt will steer you towards.

Best of luck, there is no harder work I know than remaining mild when you feel deeply hurt. It is worth the price to master this supremely difficult skill. In the meantime, be very judicious in what you say while still smarting.

Joe Manchin, moderate coal executive and ALEC member

Excellent portrait of the consummate moderately right wing sack of shit, member of the far right corporate American Legislative Exchange Council, coal broker and chairman of the Senate Energy and National Resources Committee, this podcast, which Robert Reich heard and excerpted this from: