Court is a dead-end for Trump 2020 and the RNC

Mr. Trump may well make good on his threat to raise millions more from donors and litigate the fake election results up to the Supreme Court. In his life, in every challenge he’s ever faced, he’s taken people to court, harassing enemies, making headlines, defrauding many of money he owed them over the course of his high stakes gambling life.

He has engaged in so many lawsuits, and complained so often of persecution, as he sues people, that there is a current biography of him called Plaintiff-in-Chief: A Portrait of Donald Trump in 3,500 lawsuits (he started or caused a staggering 300 lawsuits, in 44 states, prior to this rigged election). He’s now still hoping Amy, Neil and Brett, (particularly Amy), hold up their end of the quid pro quo (get over it!) and find a way to keep him in power, legally.

He’s got a steep uphill road to his friends on the nation’s highest court. A popular vote loss and a multi-state Electoral College loss are not easy for even the most fervent and loyal lifetime appointed partisans to fix. Particularly in the absence of any proof of voter fraud or electoral mischief that could have changed the outcome of the rigged election.

This situation Trump finds himself in, losing, both the “popular vote” and the Electoral College, cannot be fixed by the Supreme Court, even if Mr. Trump had anything resembling that team of very sophisticated white shoed Republican ideological lawyers who narrowly tailored their arguments to the specific facts of the extremely rare electoral stand-off that led to the one-off decision in Bush v. Gore.

In Bush v Gore the stars aligned perfectly for Bush and friends: virtual tie in the single state that would decide the outcome, top notch lawyering, assisted by an energetic team of bright young legal zealots, including future Supreme Court justices John Roberts, Brett (“Boof”) Kavanaugh and Amy Coney Barrett, and a determined right-leaning 5-4 majority on the Supreme Court waiting to take the emergency application and willing to rule on it. The legal all-stars that brought Bush v. Gore provided a variety of legal theories and arguments in support of their emergency petition to stop the voting before irreparable harm to Bush’s chances at the presidency happened.

Antonin Scalia, as brilliant a legal mind as ever sat on that court, pulled one argument out of the bundle and the 5-4 majority ran with that Hail Mary argument by Bush’s top-shelf legal team [1]. Justice Kennedy is reputed to have been the author of the infamous decision. It found there was some kind of clear violation of the Equal Protection clause of the 14th Amendment which states that citizens have the right to equal protection of the law.

The 5-4 majority said, and don’t quote us on this, ever, this decision is not to be used as a precedent (unprecedented) but a selective recount in contested counties was a violation of equal protection, in this instance, because, in Florida, counties had different systems of voting, some with touch screens, others with paper ballots, so it would be unconstitutional to, oh, you know what we’re saying! (Where I voted in NYC they had paper ballots and scanners so the ballots — scanned and paper record– could be correlated and reconciled in the event of a controversy).

Five unappealable conservative jurists put aside their partisan beliefs to make a bold and unprecedented decision that decided the 2000 presidential election. The Court crafted a one-off, disposable ruling, in favor of Bush. Case closed. Get over it. Mr. Trump was really counting on his fresh 6-3 majority to do him a similar favor.

The Scalia Court (it was actually the Rehnquist Court) reasoned that, eh, since Bush would be irreparably harmed (by not becoming president) by the recounting of votes in some counties while not others, and the People of Florida had a right to be equally protected under the law as far as their representation in a recount, well, you see, it’s clear that under the 14th Amendment the counting of ballots has to stop, it’s a clear violation of that constitutional clause we cited. Bush would otherwise be irreparably harmed, as plaintiffs’ crack legal team has persuasively claimed. By the way, never cite this case, it will not be precedent for any other case in the future. Only time I’ve ever heard of that on a Supreme Court decision.

To win this kind of legal challenge you need a concrete legal injury (besides “unfair that I lost!”) a coherent legal theory of some kind leading to a legal remedy (the judge can’t work with nothing) and some evidence to support the claims you’re making. The Trump/RNC lawsuits that are constantly being dismissed do none of these things.

Young Donald learned, at the tit of eventually disgraced, several times indicted, belatedly disbarred mafia lawyer Roy Cohn, that given enough aggression and manipulation, and controlling the messaging in the court of public opinion via the press, any court case can be won, settled favorably — or at least drawn out long enough to prevent the worst. This is mostly still true today, providing you have unlimited money and the smartest, most unethical lawyers in America on your payroll. But, it’s not necessarily so– even if Trump’s lawyers were of the caliber of the white shoed ferrets who prevailed in the one-off Bush v. Gore. The circumstances also matter in court cases where they are called “the facts”. Sorry about that, Don.

A couple of words about the Republican claim, while they were forcing another lifetime justice on to the Supreme Court in the weeks before the election (while leaving millions of poor Americans to their misery by refusing to vote on the House bill to extend government help to millions of our hungry, unemployed, increasingly desperate fellow citizens), that Democrats, if they had the power, would do the exact same thing — take advantage of a narrow majority in the same abusive way Republicans did in cramming through the confirmation of a highly partisan Supreme Court justice to cement an irrefutable majority days before a presidential election, with voting well under way.

In a strong field of contenders, this claim is possibly the most despicable recent Republican claim. It boils down to a circular bit of illogic: I can prove (at least to stupid people who hate you) that you would cheat if you were in my situation, because I am cheating, which proves that if you were in my position you would do THE EXACT SAME THING. McConnell and Graham both made this point repeatedly during the confirmation of religious extremist Amy Coney Barrett. Both of these atrocities have been easily reelected for six more years. Live with it, losers. The widely disliked senator from Texas whose father killed JFK (according to Trump) said the same thing.

Heh, what are ya gonna do?

[1] Wikipedia:

Justice Antonin Scalia, convinced that all the manual recounts being performed in Florida’s counties were illegitimate, urged his colleagues to grant the stay immediately.[1] On December 9, the five conservative justices on the Court granted the stay for Bush, with Scalia citing “irreparable harm” that could befall Bush, as the recounts would cast “a needless and unjustified cloud” over Bush’s legitimacy. In dissent, Justice John Paul Stevens wrote that “counting every legally cast vote cannot constitute irreparable harm.”[1] Oral arguments were scheduled for December 11.

In a per curiam decision, the Court first ruled 7–2 (Justices Stevens and Ginsburg dissenting), strictly on equal protection grounds, that the recount be stopped. Specifically, the use of different standards of counting in different counties violated the Equal Protection Clause of the U.S. Constitution. (The case had also been argued on the basis of Article II jurisdictional grounds, which found favor with only Justices Scalia, Clarence Thomas, and William Rehnquist.) Second, the Court ruled 5–4 against the remedy, proposed by Justices Stephen Breyer and David Souter, of sending the case back to Florida to complete the recount using a uniform statewide standard before the scheduled December 18 meeting of Florida’s electors in Tallahassee.[1] The majority held that no alternative method could be established within the discretionary December 12 “safe harbor” deadline set by Title 3 of the United States Code (3 U.S.C.), § 5, which the Florida Supreme Court had stated that the Florida Legislature intended to meet.[2] That deadline arrived two hours after the release of the Court’s decision. The Court, stating that not meeting the “safe harbor” deadline would therefore violate the Florida Election Code, rejected an extension of the deadline.

This “close” election set me to wondering

A lot of relief today, among people I know, that this, eh, close election appears to be over. Sekhnet is downtown now happily photographing some of the street celebrations out there in New York City, a flagrant “anarchist jurisdiction” that, for whatever reason, just doesn’t like Donald Trump. Turns out winning by 4,000,000 or more votes makes it a close election, too close to call for days, an electoral squeaker, in these Exceptional United States of America. I looked up “popular vote” margins for winning presidential candidates. You can see the chart here.

Trump’s 2016 margin of victory, in the “popular vote,” minus 2,868,686, is more than five times lower than the previous record negative vote margin, George W. Bush’s −543,816 in 2000. Same with the percentages, Trump’s −2.09% popular vote margin easily eclipsed the 0.51% loss Bush experienced in 2000.

Trump’s 46.09% of the POPULAR vote was the lowest total since Clinton in 1992 and Nixon in 1968. Recall though, Clinton ran in a three party race, with a wealthy outsider garnering millions of votes and Nixon faced a challenge from the racist right in George Wallace, who got a nice chunk of votes in several states Tricky Dick barely won. In a two party election, you have to go back to Woodrow Wilson in 1912 for a “winner” getting a lower percentage of the actual cast ballots (whoops… actually, you have to go back to James Buchanan in 1856 [1]).

I know, my mind just goes there, looking backward for some kind of seemingly tangible perspective. Believers of every stripe often look to history for support of their theories. An impressively deceptive “non-partisan” documentary about the safeguard of democracy that is the ingenious Electoral College, featuring discredited right wing voter fraud conspiracy theorist Hans von Spakovsky [2], notes, citing the historical record, that without the Electoral College there would have been no Lincoln, no Emancipation Proclamation, probably no free Negroes in the United States today! The Electoral College, our safeguard against tyranny! Ask the ghost of the great Republican Honest Abe!

In 2020 you can access reliable facts in seconds, one thing that makes it so maddening that an unending stream of easily disprovable “alternative facts” (lies) can catapult an unhinged demagogue to 70,000,000 popular votes after the historical disaster that was his mad, narrowly engineered 78,000 vote Electoral College presidency.

Lincoln did win in 1860 with a lower margin of the popular vote than even the man formerly known as The Donald got in 2016. Honest Abe only got 39.65%, you can look it up, though, equally verifiable– he won the Electoral College handily, with 180 out of 303 Electors. In 1864 he was reelected with a solid majority of all votes cast, as well as the Electoral College.

It doesn’t take long, a few minutes of tapping and a little reading, to find out how this happened. The Democratic party, like the Baptist Church at the time, was divided into a Northern anti-slavery faction and a Southern pro-slavery one (in the church the argument was whether the Lord our God and Jesus Christ loved or hated slavery). As a result of this sectional rift two opposing Democrats ran against Lincoln and his brand new Republican party in 1860. There was also a fourth presidential candidate, a man from Tennessee, who got a sizable number of votes. None came close to Lincoln’s large plurality. The decisive Electoral College vote Lincoln got that year made the idea of any kind of recount moot, it was not remotely close. The states that hated Lincoln simply seceded, fought a long and bloody war (a war they insist to this day — not without a lot of evidence— they never lost) and one of their’s eventually killed the Great Emancipator. The rest, as they say, is history.

Another factor that should be considered about the 1860 election is something democracy-loving extremists like Hans von Spakovsky and Steve Bannon must salivate about when they read it, Lincoln was simply left off the ballots in 10 of the 11 states that would secede from the Union shortly after Lincoln was elected president.

Yes, I know, it does seem impossible to understand. It seems like something every “Red State” [2] should have done in the lead up to the 2020 rematch, just leave Biden/Harris off the ballot– et, voila, 100% Trump vote in those states. I wouldn’t put it past ’em, since the ends clearly justify the means for their kind, but I now understand why it would have been impossible. A few moments of diligent tapping gave me the answer about Lincoln being left off all those Southern ballots. There is a procedure in every state for getting your party’s candidate on the ballot– there was nobody (who wanted not to be lynched) to do that for Lincoln in the South in 1860.

Getting on the ballot is a state issue. In South Carolina there were no ballots; the people didn’t vote for any Presidential candidate — Electors were chosen by the legislature, which included no Republican member. As for the other southern states: who was going to organize the Republican Party in the South in 1856 or 1860? The once-influential southern anti-slavery, even Abolitionist opinion in the South had long since been driven out or intimidated into silence by the hostility of the pro-slavery majorities. To campaign for an anti-slavery party was to put oneself at considerable personal risk.

On December 7, 1860, Georgia Gov. Joseph Brown, in an open letter to the people of his state, called for secession, because, in part, if Lincoln were allowed to appoint “Judges, District Attorneys, Marshals, Post Masters, Custom House officers, etc., etc.,he will have succeeded in dividing us to an extent that will destroy all our moral powers, and prepare us to tolerate the running of a Republican ticket, in most of the States of the South, in 1864.” (my emphasis). [http://www.civilwarcauses.org/jbrown.htm]. A Republican presence was simply intolerable.

BTW: The Democrats had also become a Sectional Party in 1860. Northern Democrats (Douglas), Southern Democrats (Breckenridge), were the principal fragments of the crumbling structure. (Which left poor Bell as the last truly National Democrat!)

There’s a, probably apocryphal, story that Lincoln received only 9 votes in some Southern county. When a Northerner expressed incredulity at the total, a Southerner replied, “Yes, and when we find the SOB who voted 9 times, we’re gonna hang him!”

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[1] whoops:

The 1912 United States elections elected the members of the 63rd United States Congress, occurring during the Fourth Party System. Amidst a division between incumbent Republican President William Howard Taft and former Republican President Theodore Roosevelt, the Democratic Party won the Presidency and both chambers of Congress, the first time they accomplished that feat since the 1892 election.

[2]

Note also what bullshit this Red State/Blue State reductivism is. There has never been a state, anywhere, that is 100% Nazi or 100% anti-Nazi — no place in the USA where the Klan has zero support and other places where it has 100% support. As our recently defeated president pointed out: there are good people, very fine people, on both sides (as well as some very bad ones.)

Sometimes “Red” or “Blue” states change color based on the thinnest of margins. The idea that there is a noisy group of Jews demonstrating loudly in “Jews for Hitler” t-shirts somewhere doesn’t mean that everyone in that state, city, town, street, or even house, agrees with the strong opinion of the arguably self-destructive Jews with the proud t-shirt.

No place in the United States is purely RED or BLUE. If Biden winds up winning any of his Electoral College states by even single digit vote totals, after all the millions of dollars worth of legal challenges and all the ballot recounting, does that mean all the people who voted against him in that state suddenly turned blue? Come on.

The NY Times did a nice feature, a few days before the election, about how this idiotic “dichotomy” is reflected on the very misleading and influential maps we are all seeing all the time. Check this graphic out (the interactive map show is pretty cool too):

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Invitation to Commit Violence in the name of Liberty and Justice

It was really not surprising, horrific as it also was, to hear unhinged fascist Steve Bannon call the other day for the decapitation of Dr. Anthony Fauci and FBI director Christopher Wray. Their heads, he stated, on his podcast and via Twitter, should be on fucking pikes. For the capital crime, presumably, of treason to the Leader. In Bannon’s view, Fuhrerworte haben Gesestzeskraft — the Leader’s word has the force of law, (as long as Bannon gets to have a say in who the Leader is and what he says).

The blowhard was slapped hard by Twitter after posting these incendiary opinions. Banned from the social media app. He is awaiting acquittal, conviction, or some kind of plea deal, in the fraud case against him for allegedly (and most likely) fleecing gullible, trusting, sincere Trump supporters of millions of dollars for his personal enrichment in a fake Build That Wall crowd-funding scheme. He exploited the patriotism of those low-information supporters too uninformed to realize that Mexico had already fully paid for the Southern Border Wall that has solved virtually every one of our great nation’s problems. As promised by the Promise-Keeper-in-Chief.

Is it reasonable to fear some kind of mass violence by Trump’s fired up, heavily armed supporters? Probably, the president is keeping all options on the table, his tweeted commands are routinely obeyed by groups of diehard Trump activists who don’t shrink from violence. Bannon (Sloppy Steve, who was pushed out of the Trump administration when he took too much credit for being Trump’s brain) was on Fox on Election Day, keeping the troops fired up with deliberate, provocative misinformation, infuriating lies, if you will. This snapshot is about all you need for the gist of his “argument”, I wasn’t able to watch more than a moment of it.

The beauty part, of course, is that evidence is no longer necessary to prove your case– you just have to tell your followers clearly how they are being abused and by whom.

If evil people are openly trying to steal an election, suppress your vote, cheat to win– isn’t it only right to go out with baseball bats, at minimum, and smash them in their smug faces? I mean, isn’t it?

Here are some more thoughts from historian Heather Cox Richardson, about how Trump, Bannon and their ilk, exploit and stoke misinformation, expressed with a bit of optimism about the sudden spine of the mass media and of prominent Republicans publicly abandoning Trump that may have been premature.

First of all, much of Trump’s power during his term has come from his ability to dominate the public narrative through threats or rumors. From his insistence that he had hired detectives to investigate President Obama’s birth certificate, through Secretary of State Hillary Clinton’s emails and Hunter Biden’s laptop, he has gathered power by warning that something untoward was looming just over the horizon. But yesterday, after all the hype about expected violence at the polls, there was remarkably little trouble.

Trump’s attempt to control politics by controlling the narrative continued early this morning, as the Department of Justice sent an email to federal prosecutors telling them that, while the law prohibits sending armed federal officers to polling places, it did authorize them to monitor “voting fraud” by sending armed federal officers to the places where election officials were counting ballots. About a half hour later, Trump called a press conference in which he declared victory and claimed that the ongoing counting of legally cast ballots must be stopped. Counting the ballots, he said, was the Democrats’ attempt to “steal the election.”

But Trump’s power is wavering, and he can no longer control the narrative. As he spoke, NBC News and MSNBC cut in to note that he was lying. After he finished, other media outlets also pushed back. On ABC News, Terry Moran said: “This isn’t law, this isn’t politics, this is theater,” Moran said. “And let’s be blunt: it’s the theater of authoritarianism.” Throughout the day, Trump tweeted angrily about the on-going counting of ballots; Twitter hid many of the tweets behind warnings that they were spreading disinformation.

Republican leaders have been surprisingly quick to turn on the president. Last night, the Fox News Channel was the first to call the state of Arizona for Democratic candidate Joe Biden which, according to Gabriel Sherman of Vanity Fair, led Trump to call Rupert Murdoch, who owns the Fox News Channel, to demand a retraction. Murdoch, who has said for months that Trump would lose the election, refused.

source

She provides us another important story that slipped through the cracks, as the high-powered shit hoses were flooding the zone in every way Trump and his allies have become so proficient at in our rightful terror over being terrorized by a terroristic party of violence- threatening extremists.

Another news story dropped quietly yesterday while people were distracted with the election. The Inspector General of the Department of Homeland Security issued a report challenging Acting Director Chad Wolf’s actions this summer when he sent law enforcement officers from the department to Portland, Oregon. The report challenged the deployments’ legality on a number of fronts, and concluded that the issue is open, unresolved, and urgent. The Department of Homeland Security’s top attorney, Chad Mizelle, an ally of senior White House policy adviser Stephen Miller, rejects the inspector general’s findings.

Of course, if he gets a moment, Trump knows exactly what to do. You fire the damned Inspector General, screw him, traitor! Put his head on a goddamned pike next to Fauci’s, Wray’s, Mueller’s, Comey’s, Sessions’s, Lindsey Graham’s (no, wait, Graham defended him yesterday), Omorosa’s, Hillary’s, Obama’s, Tillerson’s (who’s the fucking moron now, Rex?) those five fucks who raped the woman in Central Park and got away with it, Joe Biden’s, Hunter Biden’s, Stephen Colbert’s, Rosie O’Donnell’s, Oprah’s, Mary Trump’s, Giuliani’s, etc.

In our divided, fearful world, at this moment of disorienting uncertainty, billions of us increasingly facing imminent death and destruction, we can only go one of two ways — toward greater humanity or greater inhumanity. Sadly, the impulses seems to be solidly divided 50/50 at the moment.

I could seriously use a nice a nap, couldn’t you?

An anxiety-ridden nail-biter election, somewhat explained by historian Heather Cox Richardson

We are told by the mass media that this election is too close to call right now, very few votes separate the candidates in several “key” “battleground” states. It is not really that close an election, one candidate is about 4,000,000 votes behind the other.

It is only “too close to call” because of a brilliant device, the Electoral College, created, in large part, to preserve the Great Compromise with slaveholders in less populace states (at the time slaves were not considered humans, though a political deal decreed slave men counted for 3/5 of a man — recall the Three-fifths Compromise — for purposes of representation in Congress and Electoral College votes. Slave majority states like South Carolina got a great boon from this deal.). The Electoral College keeps the final decision about the presidency out of the hands of the riffraff, particularly the descendants of former slaves. It should be gone, for many reasons, but it is still the law of the land, as the Framers designed it as part of their Great Compromise with the beneficiaries of the Peculiar Institution (presumably, according to a pious Originalist like Antonin Scalia or Amy Coney Barrett, after direct consultation with the Old Testament God and Jesus Christ Himself).

The night of Election Day, Heather Cox Richardson laid out a bit of our history of the best, most accomplished and most well-born of us keeping the final say in our democracy out of the hands of the crude, dumb majority, entrusting democracy, instead, to the best people, our most refined people.

I have to admit I was not surprised to learn that quintessential American hypocrite Thomas Jefferson, Author of Liberty and enlightened Renaissance Man, played an outsized role in creating an ugly, unintended invitation to future tyranny. Too soon to know if Trump’s lawyers will, against all the odds, find a way to use the Original Intent of the Framers as the last word on who wins and who loses the presidential sweepstakes, no matter how many votes are cast. The facts might make you scream, but, today, a little screaming is probably good for you.

In 2018, for example, people in Florida voted overwhelmingly to restore voting rights to felons. This would have added about 1.5 million people back to the rolls, many of them African Americans. But the Republican legislature passed a law saying the former felons could not vote unless they had paid all their court fines and fees. A federal judge said that law was essentially an unconstitutional poll tax, but an appeals court overturned that decision. Five of the six judges who upheld the law were appointed by Trump.

Today, as well, there are problems with ballots. This summer, the Postmaster General, Louis DeJoy, a major fundraiser for the Republican Party and a key ally of Trump, changed the rules for mail delivery, slowing it significantly. It turns out that more than 300,000 ballots were checked into the USPS mail system but not checked out of it. U.S. District Judge Emmett G. Sullivan ordered the USPS to sweep 27 processing centers for the missing ballots, but USPS officials refused, saying they already had a system in place and that changing it would be disruptive. Sullivan has called the parties in tomorrow morning to discuss the issue.

The problem of voter suppression is compounded by the misuse of the Electoral College. The Framers originally designed delegates to the Electoral College to vote according to districts within states, so that states would split their electoral votes, making them roughly proportional to a candidate’s support. That system changed in 1800, after Thomas Jefferson recognized that he would have a better chance of winning the presidency if the delegates of his own home state, Virginia, voted as a bloc rather than by district. He convinced them to do it. Quickly, other state officials recognized that the “winner-take-all” system meant they must do the same or their own preferred candidate would never win. Thus, our non-proportional system was born, and it so horrified James Madison and Alexander Hamilton that both wanted constitutional amendments to switch the system back.

Democracy took another hit from that system in 1929. The 1920 census showed that the weight of the nation’s demographics was moving to cities, which were controlled by Democrats, so the Republicans in control of the House of Representatives refused to reapportion representation after that census. Reapportioning the House would have cost many of them their seats. Rather than permitting the number of representatives to grow along with population, Congress then capped the size of the House at 435. Since then, the average size of a congressional district has tripled. This gives smaller states a huge advantage in the Electoral College, in which each state gets a number of votes equal to the number of its senators and representatives.

These injuries to our system have saddled us with an Electoral College that permits a minority to tyrannize over the majority. That systemic advantage is unsustainable in a democracy. One or the other will have to give.

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Fake News — we keep breaking COVID-19 records after massive in-person voting in all states

Look, I’m not saying this latest spike in Covid-19 infections and deaths has anything to do with the president making it clear that our possibly fraudulent mail-in votes were not guaranteed to be received in time to be legally counted, no matter when we mailed them. I went to the polls early, in person, as did Sekhnet, as did many people I know. We were taking no chances leaving things in the sweaty hands of the creepy Louis DeJoy. Millions who voted against Mr. Trump did the same (along with most of the 70,000,000 Trump supporters who also voted in person). Depending on where you live in the USA, this in-person voting was relatively safe (as in NY City where every precaution was taken) or potentially very risky (as in virtually any state that was up for grabs).

Because the president made the safe way to vote during an airborne pandemic, like the safe way to interact in public, a wedge issue to drive Americans apart, a few million Americans, maybe tens of millions of Americans, stood on lines in places where people don’t cotton to wearing masks. In Texas, for example, the law allows election officials to choose whether to wear masks and also allows them to force voters to remove masks in the polling place if they want to vote. That’s called democracy, down in the great state of Texas.

I’m not saying there’s any connection between the president’s depraved indifference to the lives and deaths of millions of his citizens and the spikes in Covid-19 infections and death nationwide, I’m also not saying there’s not any connection. A few numbers, during these aggravating days of counting and recounting.

Election day (I think, or maybe the day after):

Wednesday, as Mr. Trump demanded the counting stop (except in Arizona, where he is behind, and had a crowd in Maricopa County chanting “Count the votes! Count the votes!” In another state his impromptu mob chanted “Stop the count! Stop the Count!”)  die Lügenpresse kept flagrantly counting so-called Covid cases and reported:

and the latest totally fake record (until tomorrow):

Speaking of numbers, Mr. Trump’s lead in Georgia was 50,000 votes yesterday evening when my cousin called from a suburb of Atlanta. By the time we got off the phone an hour later, the lead was about 40,000 votes. I watched the lead decline over the course of the next 30 hours or so, checking my phone regularly, like I was checking the boxscore of an important baseball game in progress. By midnight tonight, Mr. Trump’s lead was under 2,000 votes:

at around 3 a.m. it was less than half that

At 4:00 a.m. Mr. Trump’s lead was 463 votes. If Mr. Biden gets the 16 electors from the great state of Georgia, the ballgame is over, Joe Biden, with a razor thin 4,000,000+ popular vote lead and at least 270 Electoral College votes (according to the Associated Press and Fox News– though not most of the others which would have him at 269 with Georgia’s 16), is the 46th president of the United States.

Update, at 4:53 a.m. (ah, who can sleep these days?) Mr. Biden up by almost 1,000 in the great state of Georgia.

In other fake news:

https://twitter.com/Sifill_LDF/status/1324515166961176576

A Little Reminder About Moods

Moods come and go, and are often subject to actual events in your life. It is good to keep this transience in mind when a painful mood is oppressing you, when it feels like a particularly hard emotion will keep you in its grip forever. Moods feel irrefutable, but the ones produced by raging stress often start succumbing to reason after a good night’s sleep. It’s hard to keep this in mind while the emotion is strong, when it’s hard to even get to sleep, but I think practice may help.

Sekhnet and I recently saved the lives of five tiny feral kittens. They’d been dropped in Sekhnet’s garden by a shrewd mother cat, a cat we didn’t know, who abandoned them to the care of the provider of the neighborhood’s best cat buffet. Once Sekhnet inadvertently allowed one of them to eat. The good looking little cat caught her eye before he left.

The next day the tiny alpha kitten was back, demanding food on behalf of himself and his four larger siblings. He simply would not take no for an answer.

After Alpha made his successful appeal, the others followed. Sekhnet got a good shot of three of his four bothers and sisters, coming out of their hiding place and marching toward the feeding area.

That day they all began eating two hearty meals a day in the garden, exploring and hanging out all over the place, much to the disgust of the five adult feral cats who already lived on, and had fought for control of, that turf. Here they are, led by tiny, indomitable Alpha Mouse, in the male pear tree. Naturally he was the first one up the tree. He’s looking down on them in this shot.

The disorienting pandemic lockdown was on and we took on the saving of these five tiny lives as a kind of mission. Over the years we’d watched dozens of feral cats and kittens we got to know live short, often brutal lives, many of our favorites living only a couple of months. We decided we’d try our best to save these five.

Sekhnet fed and played with them a bit in the garden every day. She took many great photos of the little beauties. I would go out and sit with them late at night, little Alpha didn’t mind being picked up, would sit calmly on my lap from the beginning. They all learned to chase the little cat cookies I’d toss them and eventually to eat them out of our hands. Once the first couple were fairly tame (Alpha’s brother Beta followed in the little leader’s footsteps) Sekhnet designed an ingenious trap, scooped them all up at once and brought them inside where they lived in a large comfortable cage she’d found online. We then set about getting the others used to being picked up and petted. They all took to it quickly.

They were surprisingly happy with the cage, which had several levels and a little workout area where they could take turns pounding a couple of light speed bags. We took them out and handled them one at a time, petted them, won them over, made them all pets. In the end we brought them to a great adoption center we finally found and every one of them was soon adopted as a pet. Naturally Alpha was the first to be adopted, after a very short stay at the shelter, his first day out of quarantine, I think. The rest were all quickly adopted in the days that followed.

We’d done a good deed, we knew we couldn’t keep them around, our plan from the start was to get them adopted to have good lives but we were emotionally devastated that first night, after our friend rented a van and helped us transport them to the shelter in Freeport. They had all come to trust us, and were affectionate and playful, and incredibly cute. We’d grown very attached to having them around. Then they were gone. The house seemed so empty. We cried looking at their many portraits and film clips that first night.

But here is the point I want to make. The pain, though intense, did not last long. By the next day it was much easier, within two days easier still. The good deed we’d done lingered, the painful goodbye to them didn’t. It is something worth remembering when you feel heartbroken sometimes. Painful feelings truly do pass, sometimes surprisingly quickly.

I think of our horror (mine and Sekhnet’s, millions of others were delighted) on election night, at how close the vote was, at the real chance that America’s long experiment in democracy was finally and definitively at an end. At least five million MORE of our countrymen had come out to vote a second time for the most deliberately divisive, untruthful, vindictive, angry, litigious president this nation has ever had. Women, it emerged, had voted for Trump in larger numbers in 2020 than 2016! Women! Hispanic (desculpe me, Latinx) votes seem to have put him over the top in Texas and Florida. The real possibility that this raging winner could win the election and triumphantly rule as lawlessly as he sees fit set Sekhnet to sobbing into her ginger beer. I felt sick too, could not get to sleep.

In the days before the election, as the pandemic continued to rage out of control in most of the country, and new records for infections and deaths were broken day after day, the president confidently (and lyingly) declared victory over the disease that was killing record numbers in the states he won. Mission Accomplished! His maskless crowds roared their approval. On election night the agitated depression we felt was impossible to refute. It was based on the unwanted truth that we are living in a nightmare where the stubbornly reinforced, aggressive stupidity of millions of our fellow citizens, proud “values voters,” impervious to evidence even if it comes up and chokes their family members to death, is unfathomable.

The day after Election Day, as the incoming vote totals were being disputed by a president who had already strongly suggested he was declaring victory, even as he announced his intention to dispute his loss in the 6-3 Supreme Court he’d created, the media (the lying media, die Lügenpresse) was quietly publishing items like these. No longer really headlines, as much as wistful reminders:

I think bitterly that if Trump’s pandemic plan had really worked, letting the pandemic kill millions of “Democrat” voters of color in “Democrat” cities, cutting off needed financial aid to the increasingly large numbers of poor to create mass desperation and massive crime sprees, riots, looting and the need for Bill Barr’s Bureau of Prisons and ICE forces to violently clamp down on “Democrat” cities, (perhaps deploying even the military itself under the Insurrection Act,) he could have proved his wildest “law and order” theory about antifa and anarchy and black rights groups, killed and locked up enough of his enemies to actually win the Electoral College, even if he again lost the “popular vote” by millions. His open conspiracy with political supporter and mega-donor Louis DeJoy, who openly sabotaged the delivery of predominantly Democratic votes, alone, could have won him the election. It could still, unlikely as it now appears.

As the vote counting continues, Trump insisting that counting in areas he leads but is in danger of losing must be halted immediately while demanding recounts in states he has already lost (fair is fair), it looks less and less likely that the president has a path to 270. As my cousin wrote me from the great state of Georgia today:

It’s too close, but I think the only way Trump gets to 270 is if he loses 50 lbs. 

My point in all this — as Biden gets closer and closer to the 270 needed to win, as horrific as it is that almost 70,000,000 Americans seem to have voted for Donald Trump — and a majority of white women! (maybe the misogynists have a point…) as Trump’s path to the 6-3 Supreme Court seems more and more far-fetched — today feels much different than Tuesday evening.

Biden is far from my idea of an inspirational president, the Democratic party is not anyone’s idea of a meaningful political opposition party. One side radically employs any means necessary to maintain power and force its minority views on the majority of country — and that side is not the corporate Democrats. The Democratic party, as a party, is about as committed to the economic status quo as the Republican party always was. Still, Joe Biden is not Donald Trump — the main reason maybe 75,000,000 of us will have ended up voting for him.

Once he is sworn in, hopefully with a 50-50 Senate where Kamala Harris will be the tie-breaker (though even that modest goal of flipping four Senate seats likely won’t be achieved) we will have to set up committees of correspondence, organize, mobilize, stay in the streets, be smart in messaging, push, push, push. We will still be pushing a reluctant centrist against the dogged resistance of Mitch McConnell and Lindsey Graham — and every single elected and appointed member of their unified, radical party– as sickening as that thought is.

We need to stay positive and proactive, of course. If we push hard enough, you never know. The midterm primaries in 2022 may even feature meaningful Democratic party debates about how to avoid rapidly approaching fatal Climate Catastrophe. The escalating danger of global warming is even further down the page today than the new record COVID numbers, though the threats are equally dangerous. We don’t have much time to fix any of this, and four years have just been worse than just wasted — we need to ride President Biden like the affable, probably well-intentioned donkey he is.

My point though: it feels better today to be an American (for a bare majority of us), and much more hopeful, than it did two days ago.

What’s with the sniffing?

Disappointing, even horrifying, as it is that this election is too close to call (as a corrupt Postmaster General openly defies a federal court order to produce at least 300,000 “lost” ballots in swing states in time for counting [1], with Mr. Trump’s active support) — scary as the seeming end of the Age of Reason is — I couldn’t help noticing the president’s pronounced noisy nasal inhalations as he spoke at 2:20 a.m. claiming victory and announcing that he’ll be going to the Supreme Court, while accusing Democrats of a major fraud on our nation.

I have inserted the loud inhalations through the nose, the same ones we heard from Mr. Trump during his debates with Hillary.

President Donald Trump:

“This is a major fraud on our nation. (SNIFF) We want the law to be used in a proper manner. (SNIFF) So we’ll be going to the U.S. Supreme Court. (SNIFF) We want all voting to stop. (SNIFF, SNIFF) We don’t want them to find any ballots at 4:00 in the morning and add them to the list, OK? It’s a very sad (SNIFF)— it’s a very sad moment. To me, this is a very sad moment. And (SNIFF) we will win this. And as far as I’m concerned, we already have won it.”

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The party of Trump NEVER takes its foot off the gas

It was after 2 a.m. of a long day after many long days for a 74 year-old who just (we are told, though actual evidence still is lacking) got over COVID-19, I can understand if he might need a little “pick me up” before he addressed the nation.

I don’t condemn anyone for using intoxicating drugs, unless they do something dangerous like getting behind the wheel of a car afterwards. In the larger scheme of things, what difference does it make if the guy toots a few lines of a stimulant that picks him up, keeps him alert as a few Diet Cokes? But still, what the hell is up with nobody even noticing that in certain high stakes moments, the guy suddenly sniffs like a dachshund on the hunt? He doesn’t usually breathe like a coke fiend, or someone who just snorted Adderall [2]. I’m just sayin’.

I’m trying to stay positive, but I have less reason for optimism today than I did yesterday. McConnell and Lindsey are both doing cocky victory laps after easily defeating well-funded challengers. It looks like the Grim Reaper is likely to remain in his post as Obstructor-in-Chief. Meaning that even if Biden ekes out a win, he’ll be immediately thwarted, 51-49 (or better) in terms of lawmaking. Is the bright side supposed to be that Nancy Pelosi is almost certainly retaining her gavel to continue do her legislative wizardry?

In other news:

U.S. Coronavirus Infections Top 92,000 on Election Day as Death Toll Rises

The United States confirmed more than 92,000 new coronavirus infections on Election Day — one of the highest one-day tolls for any country during the pandemic. Over 1,100 COVID-19 deaths were reported across the U.S. on Tuesday as hospitalizations reached their highest level since mid-August. Former Food and Drug Administration Commissioner Dr. Scott Gottlieb warns the U.S. should expect to see over a thousand daily deaths from COVID-19 for a “sustained period of time.”

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[1]

[T]he U.S. Postal Service on Tuesday refused to comply with a federal court order to sweep mail processing centers and deliver mail-in ballots that may have been unaccounted for. The order came after USPS announced over 300,000 mail-in ballots nationwide couldn’t be traced for delivery. USPS had until 3:30 p.m. Eastern to conduct the checks and make sure all ballots could be delivered before polls closed. Instead, USPS said it would maintain its own inspection schedule. The order affected facilities in 12 postal districts across 15 states, including battleground states like Arizona and Pennsylvania where mail-in ballots must be delivered by the end of Election Day in order to be counted. Postmaster General Louis DeJoy is a Trump megadonor who has come under fire for recent changes at the Postal Service that have caused widespread delays and sparked major concerns over mail-in ballots.

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Today Judge Emmett Sullivan scheduled a contempt hearing. A DOJ lawyer said he’d check the schedule to see when the postal supervisor is available to explain why he is not in contempt of a direct court order.

“You will have to tell him when he’s available,” Emmet (sic) fumed. “It’s up to the court when he’s available.”

No idea why Business Insider refers to federal judge Emmett Sullivan by his first name, but the rest of the story is HERE

[2]

For people diagnosed with attention-deficit hyperactivity disorder (ADHD), Adderall helps to improve concentration and focus. As a central nervous system stimulant it can also have the very same effects on people without ADHD.

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Reading Shelby County v. Holder on Election Day

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.

Trump v. Biden, cage match

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.

How Trump v. Biden gets to the Supreme Court

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.