In Defense of Democracy

After Abraham Lincoln won the hotly contested four-way race for president in 1860, eleven southern states, standing on their constitutional right to own, sell and keep slaves, seceded from the United States. Lincoln, who won a plurality of the votes and the Electoral College, had not been on the presidential ballot in ten of those slave states. Check that shit out. The candidate the southern states hated WAS KEPT OFF OF THEIR BALLOTS. He won anyway.

No wonder they were mad enough to go to war.

Because since its abolition the idea of slavery increasingly provokes almost universal revulsion, history had to be tweaked a bit over the years to refocus the reasons for secession on States’ Rights and issues with taxation. On the other hand, the drafters of the Declarations of Secession were quite explicit about their defiance of those hostile to slavery. Here is the argument for secession that South Carolina, the first state to secede, promulgated on Christmas Eve, 1860:

… the government of the United States and of states within that government had failed to uphold their obligations to South Carolina. The specific issue stated was the refusal of some states to enforce the Fugitive Slave Act and clauses in the U.S. Constitution protecting slavery and the federal government’s perceived role in attempting to abolish slavery.

The next section states that while these problems had existed for twenty-five years, the situation had recently become unacceptable due to the election of a President (this was Abraham Lincoln although he is not mentioned by name) who was planning to outlaw slavery. In reference to the failure of the northern states to uphold the Fugitive Slave Act, South Carolina states the primary reason for its secession:

“The General Government, as the common agent, passed laws to carry into effect these stipulations of the States. For many years these laws were executed. But an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution.[2]

Further on:

A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery.”

The final section concludes with a statement that South Carolina had therefore seceded from the United States of America and was thus, no longer bound by its laws and authorities.

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As a nation we have had a deep history of ugly, often deadly, partisan skullduggery around elections. It may be hard to top just leaving a candidate you hate off your state’s presidential ballot, though Hans Von Spakovsky and friends are surely well aware of this inspired move and no doubt wistfully approve. American elections have always been nasty affairs.

The seamy journalist (James Callendar) who smeared second president John Adams on behalf of (and paid by) third president Thomas Jefferson later turned on Jefferson (for nonpayment, the rumor goes), publishing scurrilous stories that the Author of Liberty had a longtime slave mistress named Sally and had fathered several children by her. Callendar, a man with a drinking problem, was found not long afterwards drunk and drowned in shallow water somewhere. Nothing to see here. Jefferson’s secret would be well protected for almost two hundred years.

Over the decades countless people were literally murdered for the capital crime of trying to vote, or registering others to vote, in regions traditionally hostile to the idea that certain people be allowed to vote. Violence is a fearsome weapon to deter most things. Would you drag yourself inside to vote after being beaten bloody by a mob while the police stood by, expressionless?

Most of the action to suppress the vote in the US is not done by violence, thankfully, it is done, with even greater effectiveness, by men in robes. Just yesterday, Brett “Boof” Kavanaugh wrote, with characteristic flair, these inspiring and staunchly nonpartisan words explaining a decision that prohibits the counting of votes RECEIVED after election day, no matter when they were postmarked:

“…the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of the election. And those States also want to be able to definitely announce the results of the election on election night, or as soon as possible thereafter.”

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Suspicions of impropriety, you say? Historian Heather Cox Richardson, who quoted the above language, couldn’t restrain herself from pointing out:

This is the argument Trump has been making to delegitimize mail-in ballots, and it is political, not judicial. Absentee ballots do not “flip” an election; they are a legitimate part of an election that cannot be decided until they are counted. And the idea of calling an election on the night it is held is a tic of the media. In fact, no state certifies its election results the day of the election. Some take weeks.

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Bear in mind, there is no canon of ethics for Supreme Court justices, as we were reminded recently, during the rush to install another Federalist Society justice before Election Day. Supreme Court justices are bound only by their own conscience, or, if they’re partisan ideologues, political expediency.

So in the case of Pennsylvania, where mail-in ballots postmarked by election day that arrive after election day can now be counted, because the Supreme Court was deadlocked 4-4 and so the lower court ruling stands. Amy Coney Barrett can decide to cast a tiebreaker about voting in Pennsylvania, after a quick, emergency rehearing of the argument to give legal cover for her knowing, informed and impartial vote on the merits. Say it with me, kids “USA! USA!!!”

You may have a Trump mega-donor appointed Postmaster General who then not only quickly removes high speed mail sorting machines in heavily Democratic voting districts but orders those complicated machines taken apart and stripped for parts so they cannot be reinstalled in time to effect the voting — and issue warnings that mail will be slow to be delivered, while at the same time promising improved service — and… hah, nothing you can do about it, without the votes to impeach the man– absent enough evidence to indict him for any of the actual crimes he appears to have committed.

So if you sabotage mail-in voting during election, limit drop boxes, and have your party put out fake ones in California, and millions of your enemies stand on line for hours to vote in person during a pandemic (one assumes these are the majority of the record 64,000,000+ early ballots already cast) … uh…

you need either masses of armed supporters intimidating voters in Democratic leaning areas (which new Justice Amy Coney Barrett was unable to say is illegal), loyal state legislatures ready to pretend voter fraud is widespread and overrule the will of the voters in their states, an infallible partisan super-majority on the Supreme Court, or all of the above. Although corporatist John Roberts is usually hostile to voting rights, (he was one of the judicial surgeons who vivisected the Voting Rights Act which was designed to prevent electoral hanky-panky, particularly the kind practiced by powerful racists) he is unreliable. The far right cannot always count on the loyalty of Roberts, as we saw in the 4-4 tie on Pennsylvania trying to count all its mail-in ballots during a historic and deadly pandemic.

The rule of law, administered by judges of good character, who take their oaths seriously, are bound by ethics rules, offers some protection against some government treachery– though clearly it doesn’t apply in a carefully vetted ideologically right-wing 6-3 Supreme Court — when it comes to things like ensuring voting during a pandemic.

For the rule of law — today’s example, Bagpiper Bill Barr’s crass politically motivated attempt to get the defamation case against alleged rapist Donald Trump dismissed — on the grounds that Trump publicly calling his accuser a liar was part of his official duty as president and therefore covered by the Federal Torts Act, was slapped down by a federal judge.

The New York Times reported this today, in a piece entitled Justice Dept. Blocked in Bid to Shield Trump From Rape Defamation Suit 

They quoted Bagpiper, when DOJ made its absurd and unorthodox move (though it was effective in shielding Trump from an upcoming DNA test), speaking with his well-known candor and dismissive confidence:

“The law is clear,” Mr. Barr said. “It is done frequently. And the little tempest that’s going on is largely because of the bizarre political environment in which we live

but today:

The judge, Lewis A. Kaplan of Federal District Court in Manhattan, rejected the Justice Department’s attempt to step into the case and defend the president. His ruling means that, for the moment, a lawsuit by the writer E. Jean Carroll can move forward against Mr. Trump, in his capacity as a private citizen.

“His comments concerned an alleged sexual assault that took place several decades before he took office, and the allegations have no relationship to the official business of the United States,” the judge wrote.

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Judge stating the obvious, yo.

Get out there and vote, friends. We need an irrefutable popular vote victory, in addition to a clear Electoral College margin, to end this interminable national nightmare.

Trump’s lawyers themselves will lawyer up and try to get a case into the Supreme Court, convince the judges they appointed to rule in their favor — one more quid pro quo. It should be noted that even scumbag judges need something to work with when making a ruling. Trump and Barr have not given them much to work with, outside of attitude and a bad smell.

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