democratic impasse.com

Republican-controlled state legislatures, furthering Trump’s big lie, have responded with a deluge of voter suppression measures, as well as legislation enabling lawmakers to sideline election officials, interfere as votes are counted, and mess with how winners are certified.

As David Savage explains, in a deft analysis ("How the Supreme Court has tilted election law to favor the Republican Party") with pungently clarifying observations (several of which appear below) from a number of legal scholars, conservative majorities of the United States Supreme Court paved the way for this zealotry and turmoil in red and purple states.

The Supreme Court with conservatives ascendant has hardly confined itself to calling “balls and strikes,” in John Roberts' quaintly expressed pledge at his confirmation hearing. As conservative ideologues have secured tighter control of the high court, the majority has increasingly been willing – as the Los Angeles Times’ headline suggests – to tilt the playing field to benefit the Republican Party. Umpires don't change the rules of the game, as the Roberts' Court has done. With the three Trump-appointed justices, we have begun to see this pattern become even more aggressive.

The cascade of rulings that have fundamentally reshaped the political and electoral environment in the country is familiar to court watchers:

Voting Rights
In Shelby County v. Holder (2013), the Chief Justice advanced a cause he had taken up decades earlier in the Reagan White House: undermining the Voting Rights Act of 1965 (arguably "the single most effective piece of civil rights legislation ever passed by Congress"). The Act required jurisdictions with a history of discrimination to clear changes in voting rules with the Justice Department. Justice Roberts, writing for the 5-4 conservative majority, struck down that provision, rendering enforcement of the law far more difficult. His opinion insisted that "pre-clearance" was outmoded since Black registration had increased substantially since 1965: “Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.”

Ruth Bader Ginsberg dissented: “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.” Her judgment proved to be correct. ("The effects were immediate. Within 24 hours of the ruling, Texas announced that it would implement a strict photo ID law."). The shameful stampede to restrict voting across the country in 2020 is a result of the Republican majority's decision.

In 2020, the court sided (5-4) with the Republican-controlled Wisconsin legislature and the Republican-controlled state supreme court, and against voters during the 2020 pandemic in a pair of cases, which illustrate the position staked out by SCOTUS's majority (in a series of state voting controversies). In Republican National Committee v. Democratic National Committee the Court granted (on April 6, 2020) the RNC and Wisconsin Republican Party's request to block a lower-court ruling that extended the deadline for accepting absentee ballots by six days. Mostly Democratic voters had not received their ballots soon enough to vote by mail because of a huge backlog of requests during the pandemic. This left voters a choice: lose the right to cast a ballot or, against medical guidance to stay home and avoid crowds, venture out to the polls on election day. The court's five Republicans ruled that the right to vote while protecting ones health was less compelling than a “narrow, technical question” of the law. Justice Ginsburg's dissent took issue with that:

The majority of this Court declares that this case presents a “narrow, technical question.” Ante, at 1. That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.

The court's five conservatives reprised this ruling (on October 26, the same day the Senate confirmed Amy Coney Barrett to replace the late Ruth Bader Ginsburg) in a 5-3 decision, with three liberal justices dissenting in Democratic National Committee v. Wisconsin State Legislature. With these cases, among others, the Republican justices have made clear they don't regard the right to vote as compelling. Far from it:

“The Supreme Court has not sent a signal they will protect the right to vote."

Nathanial Persily, Stanford Law (as quoted by Savage)

Gerrymandering
Gerrymandering, the practice of drawing legislative districts (whether federal or state) to advantage one party, while disadvantaging the other, has been employed -- successfully -- going back at least two centuries. As Republican strategist and mapmaker Thomas Hofeller gleefully put it: "Usually the voters get to pick the politicians. In redistricting, the politicians get to pick the voters!" The advent of computers, moreover, has introduced extreme gerrymandering. Voters from the disfavored party can be denied representation commensurate with their numbers -- virtually guaranteeing continuing dominance by the party in charge, regardless of the outcome of future elections --as district lines are drawn with a savage precision unknown in the past.

In 2017 Michael Li, at the Brennan Center for Justice, estimated the effect of gerrymandering at the Congressional level:

This decade’s congressional maps are consistently biased in favor of Republicans.

• • In the 26 states that account for 85 percent of congressional districts, Republicans derive a net benefit of at least 16-17 congressional seats in the current Congress from partisan bias. This advantage represents a significant portion of the 24 seats Democrats would need to pick up to regain control of the U.S. House of Representatives in 2018.

In numerous states, gerrymandering of state legislative districts is equally pernicious. For instance, to look again at Wisconsin, a state closely divided between Democrats and Republicans, but where Republican capture of the legislature and the state supreme court has ensured control of the redistricting process. Since reapportionment following the 2010 census, Democrats have been consistently disadvantaged relative to their vote totals. In a balanced analysis in February 2021 (which also explains the techniques of "packing" and "cracking"), John Johnson at Marquette University Law School observes: "There is no serious question that the State Assembly districts drawn in 2011 are an extreme Republican gerrymander." In a robust handful of other states, Republican (mostly, though sometimes Democratic) legislators have been equally successful in severely diminishing the representation of their partisan opponents.

Gerrymandered state and federal legislative districts, I anticipate, are likely to have a greater effect on the November 2022 election results than the wave of voter suppression laws we're seeing in 2021. With the Supreme Court's Rucho v. Common Cause decision delivered on June 27, 2019, the Roberts' Court not only refused to uphold lower court rulings striking down gerrymandered redistricting schemes, it forbade federal courts from consideration of constitutional violations resulting from partisan redistricting, precluding imposition of any possible remedies.

John Roberts, writing for the Republican majority, did a bit of handwringing about the unfairness of the process and dithering about why it was simply impossible for the federal courts to adjudicate notions of fairness, before concluding with a definitive judgment that the federal courts must just step aside and let things be. Justice Kagen, in dissent, was hardly impressed by this reasoning:

For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.
And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.
. . .
Maybe the majority errs in these cases because it pays so little attention to the constitutional harms at their core. After dutifully reciting each case’s facts, the majority leaves them forever behind, instead immersing itself in everything that could conceivably go amiss if courts became involved.

The court's Republican majority has not wrung its hands with how, oh, how to adjudicate justice or fairness in areas where it has been committed to creating new law: whether expanding gun rights beyond reason, or inventing notions of religious liberty, or (with dreams of a revived Lochner Era) crippling the legislative state. The frenzy of gerrymandering we are almost certain to see next year will come with the blessing of SCOTUS's Republican majority.

“The Supreme Court has given a green light to aggressive partisan gerrymandering. It is almost certainly enough seats in those states alone for Republicans to win back the House.”

Michael Li, Brennan Center (from Savage)

Campaign Finance
In no area has the court's Republican majority changed the playing field so fundamentally as in how campaigns are financed. Citizens United v. FEC (2010), McCutcheon v. FEC (2014), and other decisions have sabotaged campaign finance law, virtually shredding spending limits. Under the guise of protecting "political speech," Citizens United prohibited limiting big money contributions to independent campaigns and McCutcheon barred limits on how much money any individual could give to campaigns.

In Citizens United, Justice Anthony Kennedy's opinion insists, "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption". In McCutcheon, Justice Roberts' decision begins with these words,

There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.

which he follows up with a dismissal of any appearance of corruption by big money contributions.

What stands out in recent years is that the Republican majority will ensure that wealthy individuals and corporations are free to pour huge sums of money into politics, but the right of individual Americans to cast ballots is of no more than secondary importance.

A law professor (cited by Savage) refrains from speculating about the Republican justices' intent:

“But across the right to vote, redistricting, the Voting Rights Act and campaign finance, the court’s decisions have benefited Republicans. And partisan advantage explains these decisions better than rival hypotheses like originalism, precedent, or judicial nonintervention.”

Nicholas Stephanopoulos, Harvard Law

One Person, One Vote: A Contrast
In 1964, Chief Justice Earl Warren's one person, one vote decision in Reynolds v. Sims struck like a bolt from a thundercloud. It followed Justice Hugo Black's decision in Wesberry v. Sanders, earlier in the year. State legislative districts and Congressional districts (within a state), respectively, must represent proportional populations. As Warren wrote:

Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.
The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.

And:

The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.

This upended a commonplace political practice: states had to go back to the drawing board in creating legislative districts, both state and federal. The country's political landscape looked much different afterwards.

The Warren Court's passionate and expansive commitment to the right to vote is hardly shared by the Roberts' Court or by any of the justices who most often join the Republican majority in close cases. To cite a final legal scholar (Franita Tolson of the University of Southern California Law School) quoted by David Savage, there is a reason for the preoccupations of today's court: “they are privileging the status quo of 1787 when the electorate was mostly white men and ignoring the more egalitarian Reconstruction Amendments.”

Of course. The Republican majority in Bush v. Gore appealed (as a one-off) to the Equal Protection Clause of the Fourteenth Amendment to stop the counting of votes in Florida and deliver the 2000 election to George W. Bush. But to look to a Reconstruction Amendment to protect voting rights, especially when it is minority voters and other Democratic constituencies whose votes are threatened? That's not part of the game plan for this determined majority.

The rush of voter suppression legislation we're witnessing today and the imposition of gerrymandered redistricting maps we'll witness next year, both in service to a political calculation by the Republican Party (to play along with the deceit that Joe Biden's election and votes cast by Democratic constituencies are illegitimate), were made possible by the Republican Party's capture of the United States Supreme Court.

“I know that when they teach the children about Thanksgiving they ask them what could’ve been done differently on Thanksgiving which strikes me as a way to shame children for their American heritage” pic.twitter.com/X0GdiwkwOy

— Acyn (@Acyn) June 4, 2021

Nicole Solas: “I know that when they teach the children about Thanksgiving, they ask them what could’ve been done differently on Thanksgiving, which strikes me as a way to shame children for their American heritage.”
Tucker Carlson: "Well, of course it is. Of course it is. It's the way to make them hate the country."

To understand the lineage of FNC's Carlson, we can look to Father Coglin, Joe Pyne and other media figures from decades ago. For me, this exchange and Carlson's vile comment, brought to mind All in the Family, which -- while I wasn't a fan -- I was aware of during my college years.

A quick check via Google revealed (as I expected) that I wasn't the first person to connect Tucker Carlson and Archie Bunker. A senior fellow at Cato was probably not the first either, but Cato's link landed near the top of the search results.

Fox personalities can lie -- and Carlson's suggestion that classroom teachers seek to "make [students] hate the country" is a lie -- because they are part of the conservative entertainment complex. Last fall, when defending against a slander lawsuit, Fox's lawyers convinced a U.S. District Court that Carlson's words shouldn't be taken as factual.

From Judge Mary Kay Vyskocil's opinion:

This “general tenor” of the show should then inform a viewer that he is not “stating actual facts” about the topics he discusses and is instead engaging in “exaggeration” and “non-literal commentary.” Milkovich, 497 U.S. at 20-21; Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 128 (1st Cir. 1997)). Fox persuasively argues, see Def Br. at 13-15, that given Mr. Carlson’s reputation, any reasonable viewer “arrive[s] with an appropriate amount of skepticism” about the statements he makes. 600 W. 115th Corp. v. Von Gutfeld, 80 N.Y.2d 130, 141, 603 N.E.2d 930, 936 (1992). Whether the Court frames Mr. Carlson’s statements as “exaggeration,” “non-literal commentary,” or simply bloviating for his audience, the conclusion remains the same—the statements are not actionable.

I offer no dissent on the ruling in favor of the First Amendment. Consider, though, "any reasonable viewer" of programming at Fox. I'd like to think that viewers are in on the joke and know not to take Carlson's words literally. But hate is hate. It motivates. And, furthermore, public opinion surveys show that a majority of Republicans believe that Trump's 2020 loss was the result of illegal voting or election rigging. That persistent belief in the big lie speaks of the powerful influence of the conservative media universe and of Fox News Channel, its brightest star.

In my post yesterday on the Maricopa County "grift disguised as an audit" (in the words of the Republican president of the Board of Supervisors), I suggested that the activities at Arizona Veterans Memorial Coliseum served as a template for Republicans in other states. Yesterday, in an interview with Steve Bannon, Pennsylvania State Senator Doug Mastriano -- who led a field trip to Arizona -- confirmed the lesson out-of-state Republicans are taking from the grift Bannon characterizes as a "forensic audit":

“It’s really befuddling to me that anyone would have any concerns” with the audit, Mastriano said. “This is America and we should have free and fair elections, Arizona has nothing to hide…there’s chain of custody…there’s cameras everywhere. This is really the model in the future for any elections that might be in dispute.”

This morning Ronald Brownstein surveyed the "torrent of conservative legislation" -- apart from voter suppression and undermining election integrity -- that red states are putting in place. Texas featured prominently. Governor Greg Abbott has boasted -- accurately -- that 2021 featured "one of the most conservative sessions our state has ever seen." In Texas, legislation that was deemed too conservative two years ago got rammed through this year.

A piece in Tuesday's New York Times, with the headline, "‘Contested, Heated Culture Wars’ Mark Ultraconservative Texas Session," the subhead suggested a surprise, if not a paradox: This was the session that pushed Texas further to the right, at a time when it seemed least likely to do so — as the state becomes younger, less white and less Republican.

Brownstein attributes this pattern -- in Texas, Florida, Georgia, Arizona, Iowa, Tennessee, and Montana among other states -- to both confidence and fear. Confidence, because after a rough 2018 election cycle, Republicans beat back Democratic attempts to flip state legislatures in 2020. Elections have consequences. One of the most consequential results of this Democratic failure: Republicans will control redistricting, shielding their majorities for the next decade. Further, with the most ideologically conservative Supreme Court in our lifetimes, Republican legislators believe that social policies that push the limits (such as anti-abortion statutes) will not be struck down.

Fear, because the Trump base can punish them in Republican primaries if they allow anyone to outflank them on the right. The further right the legislature pushes, the less chance there is of a challenge. Gerrymandering will protect them in general elections.

But, as Brownstein notes, it's not just fear: they're living in Trump's Republican Party and "his style of belligerent, culturally and racially confrontational politics is affirming its dominance in the GOP." As Donald Kettl of UT Austin put it, “All the forces of anger, part economic, part social, that were there to begin with are still alive, still building, and still in the process of trying to transform the Republican Party.”

Yes, Republicans are acting out, just as Donald Trump does. They're owning the libs to the nth degree. And the word 'trying' masks the fact that they've all but won at this stage. It's Trump's party now. Dissidents from Trump's world view are being purged, just as Republican liberals and moderates were purged from the party decades ago. (That John Kasich -- a Newt Gingrich lieutenant -- is called a 'moderate,' illustrates how far the GOP has moved in the past two decades.) Nowadays it is obeisance to Trump, and to the Trumpian politics of resentment and retribution, not fidelity to conservative ideology, that counts.

With a focus on the most contentious, divisive social issues, Republicans in states across the country are pushing back against a Democratic agenda in Washington and suppressing the policy choices of the diverse, Democratic-led cities within their borders.

Barack Obama sought to unify red America and blue America, to bring us together, to see us whole. Until 2016, Republican presidents professed to have the same aspiration.

No more. Donald Trump from the beginning has focused on his base, not on all of America. He has deliberately and masterfully sought to divide us. He has demeaned his opponents, attacking them as enemies. He has rejected as illegitimate political institutions and traditions (even the sanctity of elections and peaceful transitions of power) that stand in his way. He is at war with half the country and with the democratic values we once shared.

This version of authoritarianism is Trump's political brand. And it is the brand of the Republican Party circa 2021.

“Our state has become a laughingstock. Worse, this ‘audit’ is encouraging our citizens to distrust elections, which weakens our democratic republic.”

May 17, 2021 letter from Maricopa County Board of Supervisors to the President of the Arizona State Senate

The charade in Maricopa County continues. Jack Sellers, Chair of the Board of Supervisors (four out of five who are Republicans), has called it “a grift disguised as an audit.” The letter the supervisors sent to Karen Fann, President of the Arizona Senate, reveals the rank incompetence of the “auditors” (scare-quotes around that word appear throughout their letter) and the bad faith of the state senate. The county conducted a hand count, and audited their elections equipment, months ago. All legal challenges to the election results have been dismissed as baseless. Even the IT firm, Wake TSI, touted as having the expertise to conduct the audit has had enough, packing up and going back to Pennsylvania.

As I noted in an earlier post:

After stumbles right out of the gate, folks in the Coliseum have peered at the ballots under ultraviolet light (perhaps looking for water marks; perhaps not), subjected them to kinesthetic markers (a fancy way of saying they have examined folds in the paper, based on speculations of a failed inventor), and examined them for the presence of bamboo fibers (because of the baseless claim that 40,000 fraudulent ballots were shipped to Phoenix from China).

Kaleigh Rogers observes that what's going on at Arizona Veterans Memorial Coliseum has veered from any semblance of a recount or audit as required by law:

State laws stipulate that vote audits must be transparent and include more than one political party. They must also be conducted under the supervision of election officials, and the results must be made public. Forensic audits — where the systems and machines used for recording and tabulating votes are checked to make sure they’re operating properly — include even more guardrails. A handful of U.S. firms are certified by the independent, bipartisan Election Assistance Commission to do these kinds of checks, a process that requires the firms themselves to be audited every two years by the EAC, according to Jack Cobb, the laboratory director and co-founder of Pro V&V, an EAC-accredited firm that tests voting systems. Cobb personally performed Maricopa County’s forensic audit in February, which involved running a known deck of test ballots through machines to ensure they were tabulated accurately and combing through operating system logs to ensure the machines were never connected to the internet.

You'd think this spectacle would serve as a cautionary tale for other jurisdictions. Nope. This grift has become more of a template for Republicans across the country.

Georgia
“Aided by a treasure hunter, the tea party and an unshakable belief that the presidential election was rigged, a group of skeptics may soon inspect Georgia absentee ballots in an attempt to find counterfeits.
The court-ordered review is the latest attempt to question results that have repeatedly withstood scrutiny, with no evidence of widespread fraud. Georgia election officials counted ballots three times, audited voter signatures, opened dozens of investigations and certified Democrat Joe Biden’s 12,000-vote win over Republican Donald Trump.”
Michigan
"Cheboygan County is the latest northern Michigan county to begin discussions on how they conducted their elections in November 2020.
Now, a Detroit-based lawyer is offering to conduct a forensic audit of the county's Dominion voting machines free of charge."
Wisconsin
"Assembly Speaker Robin Vos this week said he was hiring three retired police investigators to look into the election results. On Thursday, during an interview with conservative talk radio host Dan O’Donnell, Vos confirmed that one of those he hired is Mike Sandvick, a retired Milwaukee police detective.
'In all honesty, he has Republican leanings," Vos told The Associated Press in an interview Wednesday . . ."

Attention is on Texas now as Republican-controlled legislatures in state after state seek to one-up each other creating obstacles to voting and even add criminal penalties for mistakes. The Brennan Center has identified 14 states as of May 14 that have passed laws to restrict access to the vote. But it is becoming increasingly clear that interference by legislatures after votes have been cast (as illustrated by the farce in Arizona) is the more ominous threat to democracy.

As Rick Hasen, legal expert on voting rights, told NPR this afternoon when asked about voter suppression:

I think you have to realize that there are two different issues going on at once. One is voter suppression, making it harder for people to register and vote. But perhaps an even bigger danger is the danger of election subversion, the idea that we might make it easier for partisans to mess with how votes are counted and how election winners are declared. That's really the No. 1 thing on the agenda for 2022 and 2024.

When Arizona Secretary of State Katie Hobbs expressed "grave concerns" about the slapdash way the "audit" in Maricopa County was being conducted, the Arizona House Appropriations Committee stripped her of authority to defend election lawsuits.

In Georgia, the legislature restricted the authority of Secretary of State Brad Raffensperger (who rebuffed Trump's demand that he find 11,780 additional votes and throw the election to the loser) and made it easier for the legislature to sideline local elections officials if it didn't like the way the count was going. In Iowa, the legislature also grabbed power from local officials and added criminal penalties for violations and fines of up to $10,000 for "technical infractions."

The Constitution empowers the states to appoint presidential electors. As Mark Joseph Stern has observed, in Bush v. Gore, the 5-4 Republican majority held that while every state legislature has granted voters the power to cast votes for president (and thus determine which candidate will receive the state's electoral votes), state legislatures can take this back. In Stern's words:

The majority declared that the state legislature “may, if it so chooses, select the electors itself,” and retains authority to “take back the power to appoint electors” even after switching to a statewide vote.

Suppose, after all the votes had been cast and counted, that the state legislature in Georgia (or Arizona, or Texas, or anywhere else) decided to overrule the majority of the state's voters: that would not count (per the Bush v. Gore majority) as a violation of the U.S. Constitution. State's rights trumped voters' rights for the five Republicans who decided to throw the 2000 election to George W. Bush.

Could this subversion of democracy come to pass? Election law expert Nate Persily is uncertain, but he sees an increasing number of state legislatures willing to invoke their Constitutional powers to intervene in elections.

“If this practice becomes routine or institutionalized, then it converts elections into advisory exercises that legislatures can take or leave as they choose,” he said. “It undermines the central function of elections as the critical stage when consent of the governed is expressed. We do not know what impact these laws will have. In fact, we will only know once it is too late.”

The 9/11 Commission would never have been established if one of the parties was dominated by Al Qaeda supporters."

Jonathan Chait

A marginalized faction of the Republican Party consists of elected officials who believe the November 2020 election was free and fair, and won by President Biden. They oppose violent insurrection. And because of their commitment to our democracy, they are willing to push back against Republicans who deny what we witnessed with our own eyes. These folks, genuine small-d democrats, have made the uncomfortable decision, likely to have calamitous consequences for their career trajectories in the GOP, to put country over party.

Another segment of the Republican Party -- ascendant in the GOP House and Senate caucuses and across much of the country -- is all-in with the Big Lie: the election was stolen; Trump was defrauded. Joe Biden is an illegitimate president. This group regards the man in Mar-a-Lago as President Trump, no matter that he no longer resides in the White House. He is their leader and the leader of real America. Their devotion is cultish, unreasonable, and profoundly undemocratic; it doesn't recoil even from violence to overcome majority rule.

The remaining portion of the GOP (possibly the largest faction among elected officials, if not among voters) is not taken-in by the Big Lie, but -- regardless of whether they like Trump or despise him -- believes that it is not in their interests, nor would it be advantageous to the party, to reject Trump's leadership at least not now. They might stray from Trump's orbit from time to time -- with a critical comment or a vote against leadership -- but when push comes to shove, they are unwilling to stray too far or for too long. Their ambition and allegiance to their party preclude that stance. And it is with their tacit or expressed support that the Big Lie caucus reigns over the Republican Party.

The Big Lie can't survive a January 6 Commission that establishes what happened and who is responsible. Republicans attached to Donald Trump can't abide this.

The Republican Party is very comfortable becoming an autocratic party. Now, to those of us who worked in the party, it`s a shocking, very sad development. You know, I`ve talked a lot about my responsibility. And this is why I didn`t see it sooner. But that`s where we are. And we have to just face the reality of it.
This is a party that is for democracy when they win, and they`re not for democracy when they lose, which means you`re not for democracy. And what we have to realize is they`re very serious about this. They`re not going to change. They`re dedicated. They’ve got a lot of resources. And they`re very patient. And we need to realize what it is that is at stake here, what we`re engaged in, and it`s really a defense of the American experiment. And if we don`t engage and fight this, they`ll win. And that`s really the stakes.

Stuart Stevens, veteran of the George W. Bush and Mitt Romney presidential campaigns and now with the Lincoln Project, May 13, 2021

Stevens spoke to Brian Williams (The 11th Hour with Brian Williams, May 13, 2021) on the same day that 150 Republicans issued "A Call for American Renewal," which pledged to push the Republican Party "to rededicate itself to founding ideals—or else hasten the creation of an alternative." Earlier in the broadcast Williams asked Stevens about the group's prospects for success. His reply:

Yes, it – listen, I have a lot of friends over there. I love the fact that they don`t support Trump and they believe the Republican Party should be something else. But it seems to me they`re asking a rhetorical question.
The Republican Party is not unhappy with where it is. Republican Party likes where it is. It`s a much smaller party, but it`s very intensely a Trumpist party. And at the Lincoln project, we think this question has been answered. And we believe that really the question is: Do you support democracy or do you support autocracy? It`s not about ideology anymore. I mean, all these ads are made about like, you know, lowering capital gains tax and health care, and it`s all kind of quaint now. It`s not what this is about.
And you have to take a stand. And we’re in the Lincoln project -- we just have one mission, which is to fight for democracy. And to fight [for] democracy, you`re going to have to beat these Republicans who have become autocrats.

Stevens offers a sober, clear-eyed view of his former political party. Republicans failed to hold Donald Trump accountable after the January 6 insurrection. Instead, the GOP leadership embraced autocracy, threatening our democratic institutions. This was a deliberate choice. It is an ongoing commitment. Stevens concludes with remarks that call to mind the analysis presented in How Democracies Die:

I mean history tells us that democracies in modern era die by the ballot box and in the courtroom, and it`s a slow process. And that is what is at stake here. And Republicans understand that. That`s why they’ve rushed to pass these bills. They want to make it harder and harder for Republicans to lose, and we know what they`re going to do if they win. They’ve already said. If they take the House, they’ll impeach at least the Vice President. So we should listen and we should believe them and we should be deadly serious about the business of beating them.

The Arizona Senate "audit" of the ballots cast in Maricopa County last November, which began on April 22 and was expected to be completed within three weeks, continues at a snail's pace. Senate liaison Ken Bennett reported yesterday that only 275,000 ballots (of 2.1 million cast) have been reviewed at this stage. The process will be suspended on Friday, as all ballots are moved from the site of the recount into storage, because the Arizona Veterans Memorial Coliseum, where the proceedings are taking place, will be the site of high school graduation ceremonies throughout the week. Ten days later, the ballot examiners will get back at it.

This has been a partisan charade from the beginning. First, because there isn't a shred of credible evidence of any fraud or malfeasance in the election results in the county. But after multiple recounts and unsuccessful court challenges, the Republican Senate -- unhappy with the Biden victory, the first in the county for a Democratic presidential candidate since Harry Truman -- ordered an audit of the ballots. Unfortunately, voter confidence, ballot security, and the rule of law were sacrificed for a partisan endeavor run by folks attached to the Big Lie.

Senate Republicans hired a Florida-based company, Cyber Ninjas, with no experience counting ballots and whose owner, Doug Logan, is a conspiracy theorist, an advocate for the "Stop the Steal" movement, and the author of a document "Election Fraud Facts & Details" (which Trump attorney Sidney Powell posted on her website). Logan said that he had created the document at the behest of unnamed U.S. Senators, as the Arizona Mirror reported last month:

Among the various claims in the document is a debunked allegation that the “core software” used by Dominion originated with and is the intellectual property of Smartmatic, alleging the latter company was founded in Venezuela and has ties to Hugo Chavez, the country’s socialist dictator who died in 2013. It claims Smartmatic has been linked to election rigging in Venezuela, India and the Philippines.

The paper alleges ties between Dominion and China, and repeats a discredited claim that the private equity firm that owns Dominion sold it to a Chinese-controlled securities company. Claims of ties between Dominion and Chinese investors were largely based on confusion between the similarly named New York and China-based subsidiaries of a Swiss securities company.

. . .

The document also cites an unsubstantiated claim that Dominion official Eric Coomer told a conference call of members of the radical left-wing movement Antifa, “Don’t worry about the election, Trump is not going to win. I made f***ing sure of that.” The alleged quote originated from conservative activist Joseph Oltmann, who claimed he heard a man identified as “Eric from Dominion” make the statement during the call.

After stumbles right out of the gate, folks in the Coliseum have peered at the ballots under ultraviolet light (perhaps looking for water marks; perhaps not), subjected them to kinesthetic markers (a fancy way of saying they have examined folds in the paper, based on speculations of a failed inventor), and examined them for the presence of bamboo fibers (because of the baseless claim that 40,000 fraudulent ballots were shipped to Phoenix from China).

John Brakey, an official helping oversee the audit of the 2020 Arizona election, says auditors are looking for bamboo fibers because of a baseless accusation that 40K ballots from Asia were smuggled here. #AzAuditPool pic.twitter.com/57UOBYIehg

— Dennis Welch (@dennis_welch) May 5, 2021

This is nuts. Joe Biden bested Donald Trump in the November 2020 election. The Arizona Senate's Republican majority, in thrall of wild conspiracy theories and Trump's Big Lie, has manufactured a nefarious extra-legal process to audit the ballots in Maricopa County.

In election maven Rick Hasen's words, “It would be comical if it weren't so scary.” Arizona Senate Republicans have trashed the democratic norm of abiding by the results of free and fair elections, so the winner takes office and the loser steps aside once the votes have been counted. Biden's defeat of Trump nationally wasn't even close. In state after state, we've had recounts, audits, and rejections in court of baseless challenges to the Biden victory, which still stands.

This week the Republican Arizona Senate has threatened the Maricopa County supervisors and sheriff with another lawsuit, while the Arizona Secretary of State (a critic of the shady audit) has received death threats.

The mischief in Arizona may spread. OAN, the network that's trying hard to be Trumpier than Fox, reports:

Meanwhile, Trump-era trade advisor Peter Navarro has been looking ahead to a similar audit in Georgia. He predicts an audit would likely reveal election fraud in the 2020 election just as it is in Arizona. Navarro added, the scale of voter fraud in Georgia is “much larger than in Arizona” and cited preliminary estimates.

And last week, Donald Trump concocted a new conspiracy regarding Michigan votes -- and a companion conspiracy regarding Wisconsin:

At 6:31 in the morning on November 4th, a dump of 149,772 votes came in to the State of Michigan. Biden received 96% of those votes and the State miraculously went to him. Has the Michigan State Senate started their review of the Fraudulent Presidential Election of 2020 yet, or are they about to start? If not, they should be run out of office. Likewise, at 3:42 in the morning, a dump of 143,379 votes came in to the state of Wisconsin, also miraculously, given to Biden.

Will Republicans multiply the Arizona travesty in state after state across the county (as voter-suppression measures have hopscotched from one state to another)? Who knows? In any case, election audits six months after the fact would hardly be the most grievous harm to democratic governance founded on the Big Lie.

Much more threatening: the precedent of rejecting the outcome of an election that Republicans lose. Next time, in another election cycle, Republican-controlled legislatures (if the vote is close enough) may simply overrule voting majorities and overturn elections that they lose -- before the results have been certified and the Democratic winners have taken office.

A year ago most of us would have regarded that prospect as farfetched. However, after watching Republicans at the national, state, and local level since November 3, and especially since January 6, this scenario is undeniably well-founded. In Arizona the state legislature has willingly trampled on the prerogatives of election officials; in Georgia the legislature has stripped a secretary of state (who stood up to Trump and against the Big Lie) of authority in future elections. The deluge of voter suppression legislation -- which has reached 11 states thus far -- is evidence of Republican legislatures' mistrust of established, heretofore unchallenged, democratic rules.

Whether invested in conspiracy theories, fearful of the backlash for opposing Republican voters or other Republicans in office, or committed to advancing their power whatever the means whenever they can get away with it -- Republican elected officials, since January 6, have been highly reluctant to shut the door on the Big Lie, and more than willing to deny the legitimacy of an election outcome that their leader lost.

We saw a number of profiles in courage, as Republican election officials did the right thing this past November. Those Republicans are likely to be purged or overruled the next time. The Republican Party (in surveys among voters and through legislative actions) has chosen to join Donald Trump in rejecting democratic institutions if that means Republicans lose power.

The GOP has become a threat to our democracy.

This week Tucker Carlson Tonight featured a discursive bit on "Joe Biden's CIA," "identity politics gone wild," and dismissal of "the white supremacist threat." Along the way, the host ridiculed David Frum, who objected:

I've known Carlson for more than 20 years. We were colleagues at the Weekly Standard in the 1990s, I appeared fairly often on his MSNBC show in the 2000s. We were "Washington friends" - we had lunch, he came to parties at my house, etc. 2/x

— David Frum (@davidfrum) May 5, 2021

In the extended Twitter thread, Frum suggests that

Carlson's like a one-man TV special effect, a creation of market analysis of race-baiting as a segment within an ever more fragmented infotainment industry.
He would just as happily host Jeopardy or do a cooking show with a Kardashian.

This morning Kevin Drum highlights (re a study of asymmetric polarization) "yet another demonstration of the malignant effect of Fox News." No disagreement here. More than any other institution, Fox News Channel sets the agenda for the Republican Party (grievance, not policy), nurtures polarization, amps up anger on the right, and deliberately and with malice aforethought misinforms its viewers. Tucker Carlson, Fox's biggest, baddest star, is the chief agitator.

As Frum suggests, it's clearly show business to him. He's a performer. He mugs and mocks with a volatile mixture of non-sequiturs, hyperbole, insults, and yarns, which serve to generate fury at the other. His ratings have made him a rich man. His annual income places him securely within the top 1/10 of 1-percent. He is an unimpeachable member of the elite he scorns. With the same compensation for hosting Jeopardy or doing a cooking show, I doubt that Carlson would have nearly as much fun as he does trolling the libs and promoting white supremacy.

The Monty Python crew didn't lay it on as thick as Carlson does. Frum objects in so many words that Carlson is an unprincipled, unaccountable cynic. Well, yeah, but his ratings lead the cable news business. His bits may not count as rational discourse, but his fans in the Trump base -- that is, folks (in the words of Scott Jennings) who "believe in Jesus, Trump and Tucker Carlson — and not always in that order"-- far outnumber the Republicans heeding anyone on the principled conservative team. Carlson and Frum may have started out as fellow intellectuals at the now-shuttered Weekly Standard, but that was before the former became the hottest name brand at Murdoch's FNC powerhouse. Look at him now!

It's television. The images are as critical to the performance as the sound.

May 8: post revised for clarity.

[Screen grabs from Fox News Channel video on YouTube.]

After watching Joe Biden’s first White House press conference, I reviewed the transcript the next day and – ignoring commentary in the media – offered some observations. After watching the President’s first address to a joint session of Congress and reading a handful of media accounts, I’ve found some comments that resonate with me.

Let’s begin with critical context offered by David Lauter from Thursday morning’s Los Angeles Times:

For more than two decades, the rewards of economic growth have flowed disproportionately to more affluent Americans, widening the income gulf and slowing economic mobility.

I’d say closer to four decades, but otherwise Lauter’s observation nicely sets up Biden’s remarks regarding the economy since the U.S. rejected the post-WWII consensus for the promises of Reaganonmics. President Biden put it plainly:

My fellow Americans, trickle-down, trickle-down economics has never worked. It’s time to grow the economy from the bottom and the middle out.
. . .

Independent experts estimate the American Jobs Plan will add millions of jobs and trillions of dollars to economic growth in the years to come. It is an eight-year program. These are good-paying jobs that can’t be outsourced. Nearly 90 percent of the infrastructure jobs created in the American Jobs Plan do not require a college degree. Seventy-five percent don’t require an associate’s degree. The American Jobs Plan is a blue-collar blueprint to build America. That’s what it is.

And I recognize something I’ve always said, in this chamber and the other, good guys and women on Wall Street. But Wall Street didn’t build this country. The middle class built the country. And unions built the middle class. So that’s why I’m calling on Congress to pass the Protect the Right to Organize Act, the PRO Act, and send it to my desk so we can support the right to unionize.

That’s a Democratic agenda, which clearly distinguishes the Democratic Party from the GOP. No Democratic president in decades has said it better, as Joan Walsh suggests:

The longtime establishment Democrat translated progressive ideas Wednesday night—paid family leave, serious police reform, free preschool through community college education, extending generous child tax credits at least through 2025, sizable tax hikes on the wealthy, providing clean water and replacing lead pipes (did I call that progressive? what century is this, anyway?)—into American pragmatism: “These are the investments we make together, as one country, and that only government can make.” Forty years after Ronald Reagan declared, “Government is not the solution to our problem, government is the problem,” Democrats mustered their best rejoinder yet.

It’s unsurprising that Democrats who strike themes of economic fairness, including two senators who ran for president, are on board with the Biden agenda, as Peter Dreier notes:

Sanders or Warren could have given Biden’s speech. They would have pushed further — a wealth tax and Medicare for All, for example — but Biden has embraced most of what these two progressive icons proposed during last year’s campaign. But had either of them won the Democratic primary and then the presidency, it is highly doubtful that they could have gotten the traction that Biden has gotten. (I say this as someone who supported Bernie in 2016 and Warren in 2020 and was initially skeptical of Biden.) Paradoxically, Biden is a better messenger for this progressive agenda than Sanders and Warren because he was not viewed as a progressive.

Lisa Lerer and Annie Karni report that even Democrats who hew to the center are all-in:

“We’ve been very happy with his agenda and we’re the moderates,” said Matt Bennett, a co-founder of Third Way, a Democratic think tank named after a governing style embraced by former President Bill Clinton that rejected liberal orthodoxy. “Some have said this is a liberal wish list. We would argue that he is defining what it is to be a 21st-century moderate Democrat.”

Bennett suggests that the world has changed:

“It’s fair to say that Obama followed the Clinton model, and Biden is not, in some fundamental ways, because the world has changed so profoundly,” Mr. Bennett said. “Joe Biden is dealing with a seditious, anti-democratic set of lunatics. You can’t deal with people who voted to overturn the election. You simply cannot, even if you’re a moderate.”

Of course Matt Bennet doesn’t have a vote in the Senate, as Joe Manchin, Krysten Sinema, and other (perhaps equally hesitant) ‘centrist’ Democrats do. We’ll have to watch and wait over the next few months to see how Biden’s agenda fares.

Senator Tim Scott offered the Republican response to Biden. While relating a personal history unique among GOP senators, Scott offered no more than shopworn GOP criticisms of the Democratic president.

A few lines, early on, accused Biden of being a divisive president:

Last year, under Republican leadership, we passed five bipartisan Covid packages. Congress supported our schools, out hospitals, saved our economy, and funded Operation Warp Speed, delivering vaccines in record time. All five bills got 90 — 90 votes in the Senate. Common sense found common ground.
In February, Republicans told President Biden we wanted to keep working together to finish this fight. But Democrats wanted to go it alone. They spent almost $2 trillion on a partisan bill that the White House bragged was the most liberal bill in American history. Only 1 percent went to vaccinations. No requirement to reopen schools promptly.
Covid brought Congress together five times. This administration pushed us apart.

These words – from the party that still clings to Donald Trump – are no more credible than the chyrons on Fox News Channel.

Yes, of course Democratic Senators were willing to vote affirmatively on those five bills – even though they gave the Trump administration rare legislative victories during an election year. It was the right thing to do. Contrast this with the malevolent, ruthlessly partisan Senate GOP led by Mitch McConnell, which opposed every significant legislative proposal Barack Obama put forward – regardless of merit, without a glance to principle or to the public interest – simply to deny him a victory. What’s different today? Now there are U.S. Senators, in lockstep with Republicans across the country, who embrace, implicitly or explicitly, the big lie that deems Joe Biden an illegitimate president.

At least they grant that he was born in the U.S.A.

"The intent always matters, sir, and that is the point of this conversation. That is the point of the Jim Crow narrative, that Jim Crow did not simply look at the activities. It looked at the intent, it looked at the behaviors and it targeted behaviors that were disproportionately used by people of color."

-- Stacey Abrams responding to Texas Senator John Cornyn's question about whether the new Georgia election law was racist.

Whether or not the Georgia law targets African Americans with "surgical precision" (I'd say, Not, and moreover I think it's likely to backfire), it passed because turnout in November 2020 and January 2021 was huge, and Donald Trump and two Senate Republicans lost. The Georgia legislature, by hook or by crook, desperately seeks to keep this from happening again. The same vile spirit is ascendant in Texas (where Trump won, but demographic trends threaten future Republican victories, down-ballot most immediately): proposed legislation to suppress the vote targets counties with huge numbers of "voters of color."

Nor have Arizona Republicans gotten past Trump's November loss. Joe Biden carried Maricopa County (the first Democratic presidential candidate to do so since Harry Truman in 1948), which enabled him to carry Arizona (the first Democratic nominee to win since Bill Clinton's 1996 victory). Biden's statewide margin was 10,457 votes, less than a quarter of his his margin in Maricopa County (where more than 60% of Arizonans reside).

Republicans can't let go of the big lie. So the Arizona state senate designated Cyber Ninjas (the Florida-based company headed by Doug Logan, who has spun pro-Trump election conspiracy theories) as its agent for an election audit of the Maricopa County ballots. On Friday Cyber Ninjas (which has zero experience counting votes) took possession of the 2.1 million ballots cast in the county that propelled Biden to victory. This, after Republicans lost multiple court cases from the Maricopa County Superior Court to the U.S. Supreme Court for lack of a scintilla of evidence of fraud or errors in the balloting.

“It’s clear this audit has been bought and sold by hyper partisans intent on sowing doubt," according to Greg Burton, executive editor of the Arizona Republic. "Senate leaders have throttled legitimate press access and handed Arizona’s votes to conspiracy theorists.”

Things did not begin auspiciously on day one (with security breaches, violations of the election code, and locking out the press). I predict that things will not end well. This audit can't be expected to dispel any doubts about the integrity of the 2020 result, nor is it likely to increase confidence in the ability of the State of Arizona -- or anyplace else in the country where the party in power embraces the big lie -- to conduct free and fair elections. To the contrary, it will further divide. Most Americans -- with Chris Krebs and Bill Barr -- harbor no doubts about the integrity of the election or the result. The unbelieving Republican base won't be convinced by elected officials who are playing along with the charade of a stolen election.

Now Republican officials have begun to push their cynical anti-democratic campaigns even further. The Georgia law and a Texas proposal would make "cooking the electoral books" (in Rick Hasen's words) easier to pull off. Hasen observes:

A new, more dangerous front has opened in the voting wars, and it’s going to be much harder to counteract than the now-familiar fight over voting rules. At stake is something I never expected to worry about in the United States: the integrity of the vote count. The danger of manipulated election results looms.
. . . These efforts target both personnel and policy; it is not clear if they are coordinated. They nonetheless represent a huge threat to American democracy itself.

The Republican Party by and large, in Washington and across the country, has refused to accept the results of the 2020 presidential election. With this refusal, Republicans have declined to acknowledge Joe Biden's presidency as legitimate. Instead, implicitly or explicitly embracing the big lie, Republican legislatures are churning out voting restrictions aimed at Democratic constituencies. And taking a step further, as Hasen describes, they have begun to rig election laws to make it easier to overturn the results when they lose (as Trump tried and failed to do after his November defeat).

The Republican Party is at war with democratic governance in the United States.