I wrote the attached, rather long item, as a summary of how we have evolved a Supreme Court majority that is partisan to the point of being in favor of suppression of fair elections, and why the junta that supposedly cares about the original meaning of the Constitution would even be considering saying that Presidential electors cannot vote their conscience.
THE POLITBURO
pälitˌbyo͝orō/
noun
- the principal policymaking committee of a Communist party.
- The five members of the U.S. Supreme Court who will do anything to ensure Republican Party dominance.
The United States Supreme Court has agreed to consider whether
presidential electors can be prohibited by states from voting their conscience. The Court’s intervention on this question
would be incomprehensible except for the fact that five Court Justices
constitute a politburo with the singular purpose of advancing Republican Party
dominance.
Most of us were schooled in the idea that the justices of
the Supreme Court are wise neutral interpreters of the Constitution. After all, that is what all of them claim
over and over at their Senate confirmation hearings. In fact, a majority on the court rule to
maintain one party, the Republican, in
power. If their decisions overturn
elections, condone distorted electoral districts, reinstate Jim Crow electoral
rules to suppress the chance of electing Democrats, or in the above case
overturn centuries of understanding about the meaning of the word “elector” four
and usually five vote for it.
If it involves hypocrisy they will engage in it. If it involves inventing facts, they will lie. If it involves repealing laws they don’t
like, they will legislate. They will
manage the constitution for their Party.
If there is any other common message it is dislike of an
equalitarian electoral system.
Three intertwined types of decisions have been used to
boost the Republican Party at the expense of electoral democracy. First they have gutted any avenue for
controlling the domination of political speech by wealth. Second they have directly harmed Democratic
presidents and presidential candidates.
And third they empower vote suppression and district drawing to skew the
power of votes.
Selling speech to the highest bidder
In the 1970s, the Supreme Court, with a broad majority
combining civil libertarian idealists and far-sighted conservatives, dismantled
the understood distinction between the free speech that Congress was to keep
its hands off and “commercial speech” whose purpose was to sell a product. Opening the door, the Supreme Court held that
allowing advertisement of referrals for out-of-state abortions was
protected. Then in 1976, on an issue
whether a state could prohibit pharmacists from advertising prices of drugs, it
said this violated free speech. [1]
It justified its ruling: “No claim is made that the prohibited
prescription drug advertisements are false, misleading, or propose illegal
transactions, and a State may not suppress the dissemination of concededly
truthful information about entirely lawful activity, fearful of that
information's effect upon its disseminators and its recipients.” The court thus ensured businesses could
openly compete with individuals for information bandwidth to address the public
on anything of interest. It slid over
the problem that commercial speakers on political matters are not required to
tell the truth.
The Court (by 5-4) then almost immediately gave the same
privilege to corporations, declaring with regard to a proposed Massachusetts’s
statute:
“This statute cannot be justified by the State's asserted
interest in sustaining the active role of the individual citizen in the
electoral process and preventing diminution of his confidence in government.
Even if it were permissible to silence one segment of society upon a sufficient
showing of imminent danger, there has been no showing that the relative voice
of corporations has been overwhelming or even significant in influencing
referenda in Massachusetts, or that there has been any threat to the confidence
of the citizenry in government.” [2]
The majority didn’t address the genuine
difference between the voice of an “individual citizen” and “voice of
corporations”. “The purpose of a
corporation is to make a profit for the shareholders...” according to the
holding of the 1919 Michigan case, Dodge v. Ford Motor Company that is
still held to be valid. It is, in
essence, a governance over a fund of money with limited liability. It has officers, or shareholders, but the
notion that such entities have the same rights to a voice as those held by the
people by the first and fourteenth amendments is new.
Also in 1976, in a very scattered ruling in Buckley v.
Valeo[3]
the majority (5-4) equated money with speech. Since, in 1976, the bandwidth of information
by press, radio, and television, was not unlimited and relatively expensive,
this decision apportioned political information conveyed to the public based on
wealth and willingness to spend it.
These mid-1970s cases laid the groundwork.
Then in 2010, in Citizens United v. Federal
Election Commission [4]. the 5-4
Republican majority ruled that Government may not,
under the First Amendment, suppress spending on political speech (propagation
of an anti-Hillary Clinton video) on the basis of the speaker's corporate
identity. In this case, it was a non-profit, but the distinction was not
considered important. With Citizen’s United the full freedom of the First Amendment was granted to corporate treasuries. The decision favored the entity with money, usually the Republicans. The Republican junta on the Court ruled:
“[T]his Court now concludes that independent expenditures,
including those made by corporations, do not give rise to corruption or the
appearance of corruption. That speakers may have influence over or access to
elected officials does not mean that those officials are corrupt. And the
appearance of influence or access will not cause the electorate to lose faith
in this democracy.”
The Republican majority cite no evidence for what they “now
conclude”. They assert, ridiculously,
that huge amounts of money by a profit-making enterprise will not cause
corruption or reduce faith in democracy.
But, more probably they hope or believe that the opposite is true
because corporate wealth was more likely to be spent on messages favorable to
their Party.
Attacking Democratic Presidential candidates and
presidents.
The direct partisanship of the Court’s majority when it
comes to presidential politics is blatant. In Clinton v. Jones 520 U.S. 681 (1997), [5] the Supreme Court held that Bill Clinton, then the President of
the United States had no immunity from civil law litigation, in federal court for
acts done before taking office and unrelated to the office; and thus allowing
accusations about his sex life to be dragged before the public. But
that was a Democrat. On May 12, 2020,
the Supreme Court considered over a live-streamed call whether to apply the
same precedent to a Congressional subpoena, and one from a New York district
attorney for President Trump’s tax returns.
Although they have not made a ruling, the debate made clear the three
absolute partisans, Alito, Thomas and Kavanaugh were searching for ways to
stand by a Republican president regardless of what a unanimous Court had said
before.
Bush v. Gore, [6],
was a decision of the United States Supreme Court that
settled a recount dispute in Florida's 2000 presidential election.
On December 9, the Court had preliminarily halted the Florida
recount that was occurring. On
December 12, (by 5-4) the court continued to stop a vote recount by local
officials and named George W. Bush as the winner of Florida's 25 electoral votes. Florida's votes
gave Bush, the Republican candidate, 271
electoral votes, one more than the required 270 to win the Electoral College
and the defeat Democratic candidate Al Gore.The Republican-junta chose to ignore the fact that a Republican mob broke into the offices of the election officials thereby preventing the count from being completed. It ignored the applicable U.S. constitutional provision for a “contingent election” by the House of Representative if there are insufficient electors favoring any one candidate. Such an House election would probably still have resulted in George W Bush being named president, but it would have required the Supreme Court to recognize a limit on their power to decide who sits in the White House.
Notably supporting the Bush v. Gore decision was Clarence Thomas who, whenever voting rights or gerrymander cases might favor minorities writes in opposition that States and their governments have control over their own voting systems. He thus supports state-engineered gerrymanders and voter suppression but imposed a U.S. Supreme Court rule over an election result where it helped the Republican.
Then, of course, there was 2010 Citizen’s
United case which, not
coincidentally, supported a right-wing group’s attacks on candidate Hillary
Clinton. If they had been dealing with a
group pushing an anti-Trump video, the same vote is improbable.
The Republican Politburo have also been active in the suppression and disenfranchisement of minorities.
In Shelby County v. Holder[7] the junta (by 5-4) invalidated a key portion of the Voting Rights Act of 1965. On June 25, 2013, the court’s conservative majority ruled that the government was using an outdated process to determine which states were required to have their voting rules approved by the government. Before the ruling, nine states (and several other counties and townships) had been subjected to this requirement. The court claimed that current facts no longer justified the singling out the jurisdictions for federal oversight.
The Shelby majority did not address the likelihood that the reason those states and counties did not suppress minority voting currently was because the provisions were effective. and were needed to maintain them. In a great leap of judicial activism, it held: “the Act imposes current burdens and must be justified by current needs.” Of course, all laws impose current burdens. The majority thus gave itself, the right to decide a law was obsolete based on data that the Court might pick and choose in favor of whomever the law “burdens”. The junta did not say that the applicable portion of the Voting Rights Act was never Constitutional, just that they had the right to decide that those opposed to it (in this case states and jurisdictions with a legacy of Jim Crow vote suppression) now had the better argument. This is clearly the function of a legislature which had reauthorized the voting rights act.
The effects were immediate. Within 24 hours of the
ruling, Texas announced that it would implement a strict photo ID law. Two
other states: Mississippi and Alabama, also began to enforce photo ID
laws that had previously been barred because of federal preclearance. When that law was thrown out by the Fifth
Circuit, Texas passed a new law, SB 5, the Fifth Circuit upheld several
portions of Texas’s new law in the subsequent case Veasey v. Abbott [8]
The Supreme Court Republican
politburo by (5-4) in the 2018 case, Husted v. A. Philip Randolph Institute, allowed Ohio to purge voting rolls
based on a process the minority alleged violated Federal laws designed to
encourage voting. [9]
This year the five person Junta ruled, in Republican National
Committee v. Democratic National Committee, at the request
of the Republican Party that Wisconsin could not make emergency changes to
allow more voters to vote absentee although voting in person could expose them
to COVID-19. [10] This was an attempt to save the political
position of a right-wing state appellate judge.
The Court has shied away
from opposing gerrymanders designed, typically, to draw electoral districts so that
more Republicans win. While Justice Kennedy was on the Court the
more liberal majority at least let stand an Arizona initiative to impose a
system for non-partisan drawing of districts, with the hard-line junta members in
opposition. [11]
However in ruling on partisan gerrymander cases from North Carolina and
Maryland, the Republican group (5-4) in the 2019 Rucho v. Common Cause case,
held that while it is illegal for a jurisdiction to depart from the one-person,
one-vote rule, or to engage in racial discrimination in districting, “a
jurisdiction may engage in constitutional political gerrymandering”[12] The Politburo whined that it was just too
hard for the Federal judiciary to come up with a fair system.
As for the question of
whether an elector in a presidential election can be dismissed or punished for
voting contrary to his pledge, the case involved Michael Baca, who voted
against pledgee Trump in the last election.
The 10th circuit held that the Constitution does not grant to
the states the power to remove Presidential electors who vote independently,
despite the electors’ pledge to cast their votes for the winners of the popular
election for President and Vice President.[13] The Supreme Court has agreed to take up the
case, The Politburo members are apparently frightened that their guy in the
oval office, just might lose if electors in Trump voting states have more
concern for democracy and governance than their MAGA voters. However, considering that in recent years two
Republicans become president with minorities of the popular vote, the Five may
well go further and declare unconstitutional the movement for several states to
agree that their electors will vote for whoever wins the popular vote. Of course, anyone familiar with American
history, or who even thinks about the logic of having “electors”, would know the only reason the framers wrote
in electors is because these super-voters might, at some critical moment, be
required to exercise independent judgment.
But if constitutional
“originalism” and partisan advantage are in conflict, the Politburo on the
court will go for their elephant in the room.
Peter Liederman
[1] 425 U.S. 748 Virginia
State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976).
(Rehnquist dissenting)
[2] First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (White, Brennan,
Marshall, and Rehnquist dissenting).
[3] Buckley v. Valeo,
424 U.S. 1 (1976). (White, Marshall, Rehnquist and Blackmun dissenting in
parts)
[4] Citizens United v. Federal
Election Com'n (2010) 558 U.S. 310, (Stevens, Ginsburg, Breyer, and Sotomeyor
dissenting).
[5] Clinton v. Jones 520 U.S. 681 (1997) (No dissents, but Breyer concurring with
doubts).
[6] Bush v. Gore, 531
U.S. 98 (2000) (Stevens, Ginsburg, Breyer, and Souter dissenting).
[7] Shelby County v. Holder
570 U.S. 529 (2013) (Ginsburg, Breyer,
Sotomayor, and Kagan dissenting)
[9] Husted v. A. Philip Randolph Institute (2018) 138 S.Ct. 1833
(Breyer, Ginsburg, Sotomayor, and Kagan dissenting).
[10] Republican National
Committee v. Democratic National Committee (2020) 140 S.Ct. 1205 (Breyer, Ginsburg, Sotomayor, and Kagan
dissenting).
[11] Arizona State Legislature v. Arizona Independent
Redistricting Com'n (2015) 135 S.Ct. 2652 (Roberts, Scalia, Thomas, and Alito
dissenting, Roberts arguing that the electorate cannot ever be “the
legislature”).
[12] Rucho v. Common Cause (2019) 139 S.Ct. 2484 (Kagan, Ginsburg, Breyer,
and Sotomayor dissenting).
[13] Baca v. Colorado Department of State (10th Cir. 2019) 935 F.3d 887, cert. granted
(2020) 140 S.Ct. 918 [205 L.Ed.2d 519]
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