Rather than watch the pundits and prognosticators today, in these sweaty hours before Donald Trump prematurely declares himself the victor and unleashes an army of lawyers to challenge a rigged election, I found myself reading the 5-4 John Roberts decision that in 2013 struck down the enforcement sections of the 1965 Voting Rights Act. It was another reminder that, in the unappealable Supreme Court, anyway, the dissent can be 100% vindicated by events set in motion by a wrongly decided opinion (see, for example Dred Scott v. Sanford) and the majority shown to be indefensibly wrong. Oh, well. One more thing that will need to be fixed when we have a semi-responsive democratic federal government again.

Reading John Roberts’s calm, measured analysis, it seems completely reasonable and sound to strike down this law at the request of an Alabama county complaining of the unconstitutional restriction of its right to full legal sovereignty in enacting all state laws. Roberts and his four conservative colleagues overturned the two lower federal courts and ruled in favor of Shelby County, Alabama.

The opinion focuses on the unreasonableness of Congress relying on 40 year-old data to continue to single out and judge jurisdictions that have long ago banned the specific outlawed discriminatory practices complained of in 1965. He bases his finding of unconstitutionality on a complete lack of contemporary evidence for why Congress reauthorized the sections of the Voting Rights Act that select certain states for preclearance of any proposed changes to their voting laws before they go into effect. He rules this an unconstitutional infringement of the Tenth Amendment guarantee of state sovereignty in lawmaking.

When you are done reading Roberts’s measured, reasonable sounding opinion you have barely a whiff of how radical the judicial activism of the 5-4 “Originalist” majority is in Shelby County v. Holder.

Seriously. I hate bland corporatist John Roberts, I know how destructive this ruling has been (up there with its pernicious close 5-4 cousin Citizens United v. FEC which ruled unlimited money spent in political advocacy is protected First Amendment speech), and I’m a lawyer, but his opinion on first reading struck me as reasonable and respectable, based on what he presented. It’s hard to see, from what he lays out, where his judicial reasoning breaks down. (The same goes for Roger Taney’s infamous majority opinion in Dred Scott, accept the premise, innate black inferiority to whites, and there is not a weak link in his legal analysis.)

Only when you read Ruth Bader Ginsburg’s dissent (another magnificent piece of clear, precise legal and moral logic) do you realize the audacity of the Roberts majority’s legal sleight of hand. You learn that the reauthorization of the Voting Rights Act was passed, after 21 hearings and 15,000 pages of evidence of ongoing discrimination in the states under preclearance, by a vote of 390-33 in the House and, after further debate, 98 to 0 in the Senate. Reading the John Roberts decision you’d have no reason to suspect that President George W. Bush signed the reauthorization into law a week later, as Ginsburg writes:

recognizing the need for “further work . . . in the fight against injustice,” and calling the reauthorization “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.” 

I cut and pasted various sections of the arguments to include in this post. There are hundreds, perhaps thousands, of words on my clipboard (most of them by the late, great RGB). I don’t have the strength to go through them at the moment, though many are well worth considering (I’ll post a link back here if I’m able to go through my notes and incorporate some of the more vivid quotes into this discussion). The entire decision is HERE and it is a rewarding read (though not to everyone’s taste).

In her most famous, and widely quoted, line from the dissent Ginsburg writes:

Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

Here is the quote in situ (citations removed) — §4(b) sets out the reasons for designating a state as one the Voting Rights Act has to keep a watchful eye on under Section 5.

Instead, the Court strikes §4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.” It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. Volumes of evidence supported Congress’ determination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

But, the Court insists, the coverage formula is no good; it is based on “decades-old data and eradicated practices.” Even if the legislative record shows, as engaging with it would reveal, that the formula accurately identifies the jurisdictions with the worst conditions of voting discrimination, that is of no moment, as the Court sees it. Congress, the Court decrees, must “star[t] from scratch.” I do not see why that should be so.

We learn from the dissent that states can get out of supervision by the Voting Rights Act by demonstrating, with ten years of a clean record on voting discrimination, that they should he allowed out of the preclearance requirement. They are then released from the law’s oversight. Who knew? There were hundreds of recent instances, cited by Ginsburg in the dissent, where, in recent years, the states that complained of the burden of the Voting Rights Act had been stopped by the Department of Justice from implementing new forms of voter discrimination. There was also massive proof submitted that racial discrimination in voting is alive and well in these jurisdictions and elsewhere. Here’s one vivid 2010 example, from Alabama (citations removed– paragraph breaks inserted):

A recent FBI investigation provides a further window into the persistence of racial discrimination in state politics. Recording devices worn by state legislators cooperating with the FBI’s investigation captured conversations between members of the state legislature and their political allies. The recorded conversations are shocking.

Members of the state Senate derisively refer to African-Americans as “Aborigines” and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout. Legislators and their allies expressed concern that if the referendum were placed on the ballot, “‘[e]very black, every illiterate’ would be ‘bused [to the polls] on HUD financed buses’”).

These conversations occurred not in the 1870’s, or even in the 1960’s, they took place in 2010. The District Judge presiding over the criminal trial at which the recorded conversations were introduced commented that the “re­cordings represent compelling evidence that political exclusion through racism remains a real and enduring problem” in Alabama. Racist sentiments, the judge observed, “remain regrettably entrenched in the high echelons of state government.”

These recent episodes forcefully demonstrate that §5’s preclearance requirement is constitutional as applied to Alabama and its political subdivisions. And under our case law, that conclusion should suffice to resolve this case.

Within 24 hours of the Roberts 5-4 majority striking down Section 5 of the Voting Rights Act, states formerly restrained by it — led by the great state of Texas, if I remember correctly, followed by several other Republican-led states, passed new laws to restrict the voting rights of selected racial and ethnic minorities.

Fair is fair, like the 2020 rule of one ballot drop box per Texas county, regardless of population. What’s old is new again. No poll tax (unless you consider an unpaid 8 hour wait to vote a “tax” for a minimum wage worker), no literacy tests (which, back in the late nineteenth century you were exempt from if your grandpappy didn’t have to take one — sorry, former slaves), no other in- your-face specifically identified and banned voter suppression– all made illegal in 1965. “So what is the problem here in 2013, in 2020?” ask Roberts, Scalia, Thomas, Alito and Kennedy.

The problem is that a one vote majority of unappealable partisans, literally members or supporters of an ideologically pure political fraternity (the Federalist Society) can calmly and legally, with the stroke of a pen, strike down the will of the electorate expressed by a united, bipartisan Congress, and an approving president. An unappealable one vote partisan majority. That ain’t really democracy, you know.

As a particularly monumental Election Day approaches, the president, confident of victory (in the court of Federalist Society-vetted federal appeals court and Supreme Court judges he’s appointed for life, anyway) has already announced that he will file a lawsuit against any electoral decision in Pennsylvania that is not in his favor. Article II, you understand, it let’s him do it, because he’s a big star, and supremely powerful and confident and, when you’re that big, they let you do whatever you want. You can grab ’em by the federal court, and they let you do it.

I’m hoping this historic early voting, and a turn-out on pace to break all records for voting in a presidential election, are strong signs that the nation has had enough of being constantly, roughly grabbed by the pussy. Women — and the majority of white ones unaccountably voted for Trump last time — seem to have woken up. Polls show Biden up 20 points among women this time, a popularity among the majority gender that Hillary Clinton never approached. Polls have been wrong, of course. For one thing, millions won’t admit to pollsters that they plan to vote Klan once inside the booth. Yadda yadda.

It’s possible the courts will decide this election, by disallowing the counting of thousands, even millions, of non-Trump ballots in various states, by pulling an esoteric ruling out of its collective, partisan ass, as the 5-4 Republican majority did in 2000. Bush v. Gore was decided based on an impressively feeble Hail Mary Equal Protection theory that the opinion stated, as applied, was to have no value as a precedent. A partisan majority, history shows us, doesn’t shrink from pulling out a unique, madcap one-off decision, if the historical necessity arises. Here’s a decent discussion of the possibility of another Bush v. Gore in 2020.

It’s tempting to call a determination to have a straight party-line Supreme Court vote on, say, a brand new Executive-created doctrine called “counting only votes cast and counted by close of business November 3, unless those votes are against me, in which case they’re fraud” unprincipled. Samuel Alito and Boof Kavanaugh have already signed on to this idea, as has Clarence Thomas — all are open to post-election review of non-Trump votes anywhere and everywhere — to prevent, in Boof’s unmistakable prose:

“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.“

Gorsuch hasn’t said where he stands, but he doesn’t really need to. Amy Coney Barrett? Anybody’s guess. Chief Justice and one-time “swing vote” John Roberts? It doesn’t matter anymore, with Amy there.

Tempting to call this hyper-partisanship unprincipled, but there is a powerful principle at work here. Power. Politics is seen by partisan groups like the Federalist Society as a blood sport, you prevail by killing your evil enemies and the ends justify the means. If you join the Federalist Society you commit to defending certain political, ideological positions, they become dogma. Anyone who deviates from dogma is a heretic. Everyone knows that heretics must be excommunicated and burnt at the stake.

With that, here’s a recent photo of a fervent true believer passionately preaching to an adoring crowd at the Federalist Society gala.

You can get a pretty good sense of the high principles that animate an uncompromising, ideologically pure legal mind like Bagpiper Bill Barr’s, and his ilk, from this presentation by John Oliver.

Good luck to us all tomorrow and in the high stakes days that will surely follow.

Here is another reason for guarded optimism about the looming rigged election.

Trump v. Biden, decided by the partisan-packed Supreme Court is far from a a certainty. It is not even a likely scenario (though it could happen, of course, a truly sickening thought). There are several specific things that must happen before the tainted 6-3 Supreme Court majority can rule on party lines to appoint Trump president.

The Trump-McConnell appointees on the federal appeals courts have been consistently ruling against the extension of vote counting and other measures to make safe voting easier during a pandemic. Their presumption is that to increase the number of votes counted will also increase the margin Trump will lose by. Rule as they may, suppress as many votes as they like (and God bless the lawyers who are fighting back against this in court), unless the election is very close, and unless several other specific things happen, there is no automatic route to the Supreme Court for Trump. As legal analyst Jonathan Diaz explained on CNN the other night (my editorial additions are in parentheses):

The election would have to come down to the ballots in one of the contested “swing” states (as in the Florida recount in 2000). It would have to be so close that the numbers of ballots received between Election Day and the extended deadline could be decisive, (could “flip” the result, as eternal adolescent asshole Kavanaugh wrote the other day). The president would also have to be ahead in that contested state, “notwithstanding those post-Election Day ballots” in order for a challenge to make a difference.

I am remaining positive. I’m focusing on the unlikeliness of all these things happening, that the election, even with the millions of undelivered and invalidated ballots, will not be close enough for the lawyers for these insane and unscrupulous zealots to steal a la Bush v. Gore.

Open, unaccountable corruption is a fearsome thing, terrifying, really. So is the constant lying without consequence, the ceaseless cruelty, the vindictiveness, the rage, the selective use of law enforcement against “enemies” and the rest of the destructive tics of the Trump era. I’m putting my faith in the fact that most Americans are not toxic kool-aid drinking death cult members (though, or course, sadly, many millions are). In zombie movies, in the end the zombies almost never prevail, however bad it looks for most of the flick.

The Voting Rights Act, which, among other things, makes it a federal crime for anyone to intimidate voters (Amy!), has become very porous since the 5-4 Supreme Court ruling in Shelby County v. Holder (2013). The 1965 law recognized the ongoing need to deal with the new and ingenious forms of legal discrimination devious vote suppressors would devise in the future. Section five of the law required federal pre-clearance for any changes in voting laws that would have a disparate impact on different groups of voters in the state. It is Section Five, this federal review for bias and voter suppression, that John Roberts [1] and the four other right wingers on the Supreme Court did away with in 2013.

In that case the right-wing majority held that, in a “post-racial” society like ours, where racism no longer rages, the 1965 Voting Rights Act no longer requires constitutional pre-clearance before any state can change its voting laws to make them more restrictive. State voting laws are now presumed to be unbiased and in compliance with the Voting Rights Act, no matter how selective they seem or what the history of bias in the state might have been, absent proof of actual bias in a federal lawsuit. The ruling shifts the burden (and expense) for proving bias in election laws onto the citizens and off of the state.

This kind of subtle, yet in-your-face, curtailment of guaranteed rights is what Thomas Jefferson meant when he said “the price for democracy is eternal vigilance.” Dig it.

Texas is among the states that have gone to work since the anti-voter decision in Shelby County. The devil, as always, when devils do their devilish best, is in the diabolical details.

Here is Bill Moyers talking to election lawyer Ben Clements and John Bonifaz who are fighting ongoing cases against voter suppression. I’m going to break up this transcript with a few bold-face headlines (with a “fuck you” shout-out to WordPress engineers for their excellent work in making this all but impossible)

BILL MOYERS: I see that you’re involved in a case in Texas involving the Voting Rights Act concerning a safe and secure election during the pandemic. What’s that about?

BEN CLEMENTS: So the case challenges a number of laws and policies in Texas that particularly as they’ve been implemented during the pandemic have made it very, very difficult for people to vote safely. And the key part of the law that we are currently seeking to have the district court in San Antonio strike down is the governor’s mask mandate order.

The governor of Texas issued a mandate in an order last July requiring masks to be worn in almost all public places in Texas with just a handful of exceptions. But one of the exceptions, oddly enough, was for polling places.

So it specifically says that voters are not required to wear masks when voting or when standing in line to vote. Poll workers are not required to wear masks. And so if you want to go vote safely in person you have no choice but to risk being exposed to other voters and to poll workers.

And the secretary of state has issued further guidance saying that the poll workers can require the voter to take their mask off when showing their identification. So essentially, requiring voters to go face to face with a poll worker that does not have a mask on, and you take your own mask off. Now, this is all compounded by the fact that Texas is among the very worst states for providing alternatives to voting in person.

They do not allow you to vote by mail unless you have a medical or other health necessity. And fear of contracting COVID-19, Texas authorities have said, does not qualify. They make it very difficult to vote curbside if you can get yourself into the polls physically, then you’re not permitted to vote curbside.

So for the vast majority of Texans, they have no choice, if they want to vote, but to go do so in person. And as a result of this exemption in the governor’s order, to do so by exposing themselves, potentially for a long period of time because Texas also has very, very long lines in many of their counties and this claim is also under the Voting Rights Act. And particularly, as a discriminatory exemption. Because as we know COVID-19 affects Blacks and Latinos much worse than it does white people in terms of the likelihood of being infected and in terms of the severity and the risk of death if they are infected. And it’s been pretty well documented that that is all of the result of underlying, systemic racism in this country. And particularly in Texas. So we’re awaiting an order from the judge. We’re hopeful that he will order the exemption removed so that people are required to wear masks at the polls.

BEN CLEMENTS: I don’t think there’s any question that on one level, it’s extremely political. I mean, the only justification that the state can come up with for this exemption is their claim that some people just don’t want to wear a mask. It’s not just the poll workers who are exempt. Voters are exempt. And so if you want to go vote without a mask, because you don’t care about possibly infecting other people, you’re entitled to do that in Texas. And the Texas authorities claim that they need to do that because people should have the right to go vote without a mask if they want to. Now, that decision that they are more concerned about protecting the interest of someone who feels that it’s a personal affront to have to put on a mask than they are in protecting those people who feel that it’s not just a personal affront, but a risk to my safety and my health and possibly my life to be exposed to these people who won’t put a mask on, that they have made that choice.

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The position of the good, Republican authorities in Texas, doing their best to get their candidate back into the White House, is that since wearing a mask offends some people, nobody will be required to wear one and if you want to vote safely then — be a pussy, stay home and don’t vote:

“That decision [to not require masks during voting] that they are more concerned about protecting the interest of someone who feels that it’s a personal affront to have to put on a mask than they are in protecting those people who feel that it’s not just a personal affront, but a risk to my safety and my health and possibly my life to be exposed to these people who won’t put a mask on, that they have made that choice…”

That shit speaks for itself.

[1]

BILL MOYERS: How much has the Voting Rights Act been hurt by that decision of the Supreme Court, enabled, inspired by John Roberts? Who, as a young member of the Department of Justice, wrote a memorandum to his bosses laying out a strategy for undoing the Voting Rights Act that he then, once on the Supreme Court, began to implement?

JOHN BONIFAZ: He started very early during the Reagan Justice Department.  He did not want President Reagan at the time to extend the Voting Rights Act.  He lost that battle as a young attorney in the Reagan Justice Department. But then, of course, he ascended to the Supreme Court. And in the Shelby County case in 2013, he invalidated Section 5. And what we’ve seen as a result is a sweeping set of voter suppression laws and restrictions throughout the South, throughout the areas that were subject to Section 5 preclearance, including states like Texas.

BEN CLEMENTS: That decision in Shelby that gutted Section 5 and other decisions in other areas such as Affirmative Action, Justice Roberts has been animated by this idea that racism in this country is not a problem anymore. That we don’t need Section 5 of the Voting Rights Act because those states that used to engage in suppression of non-white people’s votes don’t do that sort of thing anymore. And the very painful irony is in his insistence on gutting these efforts, he has helped usher in a resurgence of systemic racism and and in particular, voter suppression often on racially-based lines as a result of some of his rulings.

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The 6-3 right-wing majority on the Supreme Court is poised to hear the president’s appeal of any voter decision that goes against Mr. Trump, a man who has repeatedly announced that his loss could only be the result of massive voter fraud (that there has never been any evidence for).

If the margin of Trump’s loss is large enough, as one-sided as it should be, even in this zombie apocalypse we are living in, the 6-3 majority will have a difficult job finding even convoluted legal grounds to rule that he is still president. That’s why massive voting in person is so important right now.

It’s encouraging to see the record-shattering early voting across the country in the face of an uncontrolled pandemic. I felt fine waiting 52 minutes yesterday to cast my vote, (all of us wearing masks, keeping 6 feet apart and disinfecting our hands after touching anything) happy to do it, even though my vote was cast in an “anarchist jurisdiction” Trump should lose by a ton of votes.

Amy Coney Barrett bent over backwards yesterday to demonstrate her judicial impartiality, recusing herself from rushing in to break the court’s tie in an emergency Republican appeal of the Pennsylvania lawsuit decided against them by the Pennsylvania Supreme Court and overturn its ruling. This case is intimately related to Trump’s federal lawsuit to limit voting in Pennsylvania, a case thoroughly disposed of by Trump appointee J. Nicholas Ranjan. Ranjan went into great legal detail when he dismissed the Trump campaign and Republican National Committee’s case to limit voting during a pandemic. He returned again and again to the baselessness of their claims, the tenuousness of the few claims that were arguably based in law or fact, and the lack of evidence for them they presented.

The Supreme Court could have overturned the lower court anyway, and possibly even Judge Ranjan scholarly and thorough record of the reasons he dismissed the case (though procedurally there won’t be time to appeal that one in the Supreme Court before the election), if Amy Coney Barrett had decided she could be impartial about it and that there was no way her action in breaking a tie in Mr. Trump’s favor would have appeared inappropriate. That the fate of this ruling was left up to the conscience and discretion of one rushed Trump lifetime appointee is worth being chilled about.

Her decision yesterday is of small importance, really. The Federalist Society majority are saving bigger fish to fry, having ordered the segregation (“separate but theoretically equal” [1]) of all ballots that come in after the polls close on election day. [They didn’t order that, see footnote] Samuel Alito recently reassured his fellow-travelers that the validity of these legally submitted ballots may be re-litigated after the election.

We turn in this perilous moment to the New York Times for some characteristic, though unintended, humor. As much as I respect the Times for some of their invaluable reporting, I also hate them for their sometimes absurdly prissy insistence on a “respectability” that amounts to non-reporting. Both quotes below are from this article on the Supreme Court, which I read while waiting on line to vote yesterday.

Even 20 years later, Democrats still harbor bitter memories from the court’s 2000 decision, given that it ended a hand recount that aides in the Gore campaign believed might have delivered a different result.

Hah! Of course. Only Gore aides believed a full count of the votes cast might have delivered a different result. Like a result based on the actual vote total in Florida, if the recount hadn’t been stopped by order of the Supreme Court just in time? Like an electoral result unaffected by the Roger Stone-engineered Brooks Brothers Rioters who stormed in to violently disrupt the Dade County recount? Like if there had been no interference at other polling places where suspiciously punched “hanging” and “dimpled” “chads” were mysteriously found on Gore ballots during hand recounts? Predictable bitterness by the losers, one supposes, — well, easy enough to understand. Here’s a byte for you:

After an intense recount process and the United States Supreme Court’s decision in Bush v. Gore, Bush won Florida’s electoral votes by a margin of only 537 votes out of almost six million cast and as a result became the president-elect.

Wikipedia

300 of these 573 Florida votes against popular vote winner Al Gore, MORE THAN HALF of Bush’s margin of victory (out of about 6,000,0000 votes) we can see on the table Wikipedia provides, were cast in tiny Liberty County, Florida where Bush voters cast 1,317 votes and Gore voters 1,017.

Makes you kind of think, doesn’t it? How much easier is it to engineer this kind of 54.65% to 42.20% electoral mini landslide using the inconceivably fancy algorithms of 2020? It was done in several states Trump needed in 2016, engineering surgically precise county by county margins of well under 1%.

Not to worry, though, Bush v. Gore was a one off. The Justices who wrote the 5-4 Bush v. Gore decision [2] giving the presidency to future war criminal, and later painter of wonderful animal portraits, George W. Bush, were explicit. The decision would not be cited as precedent– in fact, almost no part of it has ever been cited– except once by a member of that 5-4 majority, Clarence Thomas, and the other day by Kavanaugh.

It will not be cited again, at least not until really, really needed by those who would vote 6-3 in a hypothetical Trump v. Biden. Kavanaugh has already expressed a fascistic willingness to avoid the suspicious appearance of impropriety that continuing to count millions of votes AFTER election day would surely cause. As the dim-witted, ideologically pure, unappealable lifetime political hack wrote the other day, he would manfully prevent:

“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.“

Every American knows that runs scored after the eighth inning of a baseball game are never counted, it would flip the outcome of the game and cast suspicion on the entire sport of baseball!

The New York Times, with a puckish punchline:

In an odd coincidence, Justice Kavanaugh worked on the recount litigations in Florida, on the Republican side, as a young lawyer. So did Justice Barrett and Chief Justice Roberts.

Odd coincidence, indeed! As odd as the coincidence that all three were appointed by presidents who lost the popular vote! Can you believe it?

[1] CORRECTION:

The Supreme Court did not order the segregation of mail-in ballots postmarked on or before election day, but received after. It was ordered by Pennsylvania Secretary of State Kathy Boockvar. She did this so that any disputed vote total from Pennsylvania can be shown in two parts — as counted on Nov. 3, and the votes tallied afterwards. Her idea is to preserve the integrity of the votes, rather than have all results thrown out, and Republicans send a Trump slate of electors to the Electoral College as a result of this dispute. She’s hedging Pennsylvania’s (and our) bets if the Supreme Court decides to back a Republican move to have the votes thrown out in their entirety for not following the Supreme Court’s later ruling. If the vote total is thrown out, state legislatures are free to choose which candidate to throw the state’s electoral votes to.

I stand by the fact, of course, that every member of the current 6-3 right-wing majority is a tested, ideologically-driven party zealot chosen, after careful vetting, for his (and now her’s, too) unflinching willingness to do whatever their party requires. The current court’s unified hostility to voting rights is well-documented (see, for example, Shelby County v. Holder== we have a black president, proof that racism is dead and laws against racist voter suppression are no longer needed, long live the future white president!)

[2]

Ah, for happier, more bipartisan days!

That 5-4 majority was composed of the nominees of Republican Presidents George H.W. Bush, Ronald Reagan and Richard Nixon. The four in the minority had been nominated by three presidents: Republicans Gerald R. Ford and George H.W. Bush, and Democrat Bill Clinton.

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The mass media that in the lead up to the 2016 election gave a billion dollars of free publicity to the truculent blimp who became America’s 45th president is at it still. And why shouldn’t they be? Wasn’t it Reagan who said “the business of America is business”?

The bottom line is a sacred thing in a profit driven culture — it is certainly more important than fairness and accuracy in reporting, critical analysis, reasoned debate. Unrestrained lust for advertising dollars is a bad substitute for judgment, discretion, concern for the harmful public effects of open, notorious collusion with those who have the most money to spend and the fewest scruples about what they’re buying. The crazed pursuit of ever more wealth for the already wealthy exerts a downward momentum of its own, even when no foot is on the gas.

I remember the night in 2016 when Bernie Sanders won numerous primaries. Instead opf broadcasting his speech in front of a fired up crowd, the corporate media had its cameras trained on the empty Trump podium waiting for their meal ticket to show up and make some attention-grabbing remarks. A lingering. longing shot of the empty podium with the Trump sign on it, a perfect symbol for what has gone wrong in America.

I recall the head of CBS, a smug asshole who’d later have to leave the network in disgrace (with a nice chunk of his $100,000,000 severance package, as I recall) after numerous complaints emerged that he’d molested female subordinates, saying he might not agree with Trump’s politics (whatever those might be) but he sure had to love what Trump did for the CBS bottom line. True that, multimillion dollar golden parachutes for sexual abusers do not grow on trees.

John Starks was on the foul line about to shoot two, during crunch time in a playoff final game the Knicks were in, when the network abruptly cut away to watch a helicopter shot of a phalanx of cop cars following a white SUV in which OJ Simpson, with a fake beard and a satchel of cash, was fleeing with his buddy and wheelman Al Cowlings after somebody hacked OJ’s ex-wife and a friend to death outside her home. Why were we suddenly watching that slow motion car chase instead of the NBA finals? Somebody at network made a ratings decision, based on eyeballs and advertising dollars.

Sekhnet worked in the mass media and there are certain broadcasts of public significance she must watch. So I found myself sitting with her as the grotesque Vice Presidential debate unfolded. A debate moderator, a seemingly intelligent and likable woman, was asking questions of the candidates. I found several of them, tailored to the individual she was questioning, flat out shit questions, but it was what the network commentator said afterwards that brought the bile up into my throat. I knew I should have been back in the other room playing guitar by then, so it’s my own fault I was still on the couch, watching the post-game show.

“Mike Pence was masterful,” Norah O’Donnell of CBS said of the overbearing robot’s evasive, wooden debate performance. I snarled at Sekhnet who insisted O’Donnell had misspoken. Then O’Donnell clarified her comment. “He didn’t answer a single question he didn’t want to answer.” That is a masterful debate performance in America in 2020 — “I know you are, but what am I?” “Make Me!” “I make you in the toilet every day!” I know you are, but what am I?”

In this land of proud, assertive idiocy I am always relieved to read intelligent analysis of the shit show that we are all the forced audience for. I am so relieved to hear a story told with full context, without the maddening, stupefying false equivalence that makes a claim of climate change hoax, witch hunt, massive voter fraud or COVID-19 hoax just another legitimate point of view deserving of equal time and respect in the public square. I admire the intelligence, care and clarity of people like Bill Moyers, Jane Mayer, Amy Goodman, Jeremy Scahill, Shoshana Zuboff, Eric Foner, heroic outliers in an age of corporate conformity. (I realize only four of these are journalists).

Recently I’ve become aware of another talented presenter of thoughtful perspective on current events, historian Heather Cox Richardson, lately author of the nightly news digest Letters From an American. Last night she nailed (and gave the historical background of) something so basic that I need to share it here. You can read her full piece here.

She points out that Norah “Pence was masterful” O’Donnell, who interviewed Kamala Harris on the 60 Minutes episode that Trump had enough of when Lesley Stahl unfairly insisted on asking him questions that offended his delicate sensibilities, posed a pointed and unfair question of Kamala Harris, with no equivalent one for the politely fuming Pence.

O’Donnell set up the question by remarking that Harris is the most liberal member of the Senate (Senators Sanders, Warren and others might disagree) and then asked Harris, point-blank, if she was a “socialist”.

Harris laughed a robust little laugh that chilled my blood a bit, then laughed off the suggestion she was anything like a socialist. I was waiting for the steely follow-up “are you, or have you ever been, a member of the Socialist party?”

Heather Cox Richardson lays out the long, sordid history of making the word socialist a political smear in the United States of America. It has long been a sturdy tool of the anit-labor titans who spend so much money to keep the American populace politically unsophisticated. On network TV we have a respected journalist asking a vice presidential candidate, in effect, “are you a crazed, dangerous, America-hating, vicious, nasty, dogmatic monster who will, as the president claims, destroy our cherished way of life?”

All the monster can do at that point is laugh. The laugh, of course, is not a good look, nor a good answer to a loaded, disrespectful question. The fast moving TV format does not lend itself to thoughtful discussion, of course — it’s all about sound bytes, memes and gotchas.

The historian, after describing the long vilification of “socialism”, dating back to the years right after the Civil War, asks why a similar question was not posed to the masterful Mike Pence. Why wasn’t Pence asked to defend himself against the evidence-based charge that he’s part of a fascist administration. Fair point, no?

“Mr. Pence, a lot of your critics claim that you and the president are corrupt pay-to-play authoritarians who give special treatment to wealthy donors and loyalists while using the power of the state to attack, harass and punish critics real and perceived, that your governing style is fascistic. You dole out generous handouts to the already wealthy while imposing pain and suffering on the vast majority during an economically devastating pandemic, use state violence, backed by the Justice Department, to crush constitutionally protected protests, spread false, incendiary, personal smears against opponents and critics, sow fear and hatred between ethnic groups, retaliate against those carrying out their lawful duties, obstruct investigations, intimidate witnesses, prevent the introduction of evidence and witnesses at your leader’s trial, fire government inspectors and watchdogs, call for the jailing of political opponents, repeatedly lie about a massive, deadly, rapidly spreading public health crisis that has already cost over 220,000 American lives — insanely weaponizing proven safety protocols in defiance of science — designate sanctuary cities as enemy territory– “anarchist jurisdictions” and force these cities to bring court cases to get federal funds already allocated to them, support dictators around the globe, slash regulations that protect the public, spread demonstrably false propaganda while insisting that the free press is the enemy of the American people, as is voting by mail … blah blah fucking blah.”

Ah, you know what they say, the masterful few — “I know you are, but what am I?”

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.