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Where is the Emergency Legislation to Protect Elections? [1]

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Date: 2022-09-09

We are at a hinge of history. American democracy really could fail. Fortunately, President Biden has answered the challenge in his recent speech, calling out the enemies of the rule of law and making it clear that this election is indeed about protecting the basics of voting and democracy.

That’s a fundamental first step, Nevertheless, we the grassroots need to be pushing our Democratic Party leaders even harder. Are they really going to remain silent in the face of a clear challenge to free elections that the Supreme Court will soon be considering, a case that could potentially give gerrymandered state legislatures the right to declare the victors of Presidential elections, disregarding what the voters said?

And even deeper, are our Democratic Party leaders really going to remain silent on a fundamental political-ethical set of failures in our Federal justice system? Activists and corporate raiders easily succeed by judge-shopping, any trial involving huge corporations or rich celebrities dissolves into years of lawyering with no one and certainly no corporation ever held clearly accountable for any abuse, and republican judge-stuffing has given us a set of frankly biased conservative judges, supervised and guided by an extremely radical Supreme Court.

We the people cannot live for ten or twenty years under these politically-biased judges. Ginni Thomas was ready to go to war against the constitutional government, can we find out if Clarence shares these sentiments of his “best friend” who he supposedly doesn’t talk about politics with? The unethical behavior of our judges is in our faces, let’s not ignore it.

That case that could take away the right to vote IN THE NEXT PRESIDENTIAL ELECTION is called Moore v. Harper, and the Court did not need to take up the case, but it did. Moore v. Harper is a case that comes from North Carolina, in which citizens sued to overturn a gerrymandered set of districts, and the North Carolina Supreme Court agreed to overturn the gerrymanders; now the legislature is suing to get its rotten districts back in power.

Their case specifically raises what is called the “independent state legislature doctrine,” a constitutional theory that seems to arise only when Republicans are trying to overturn elections that result in Democratic party majorities; it was raised in the 2000 Gore-Bush election cases, and again by Trumpists after the 2020 election.

The claim comes from wording in Article 1, Section 4 of the Constitution, which states:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

The current Republican argument is that this should allow the legislature to make any voting regulations it pleases, and be able to disregard any other consideration, such as state constitutional provisions, state courts, vetoes by state governors, or federal court rulings. Republican extremists in 2000 and 2020 were arguing this should allow the state legislatures to simply ignore any election results and appoint anyone they please as electors in the Presidential Electoral College. In other words, dark money and gerrymandered legislatures would essentially put an end to free and fair elections in America.

Although previous Supreme Courts have consistently rejected these interpretations of the Constitutional language, as recently as 2015, does anyone believe that the radical Court of Alito and Thomas and Kavanaugh would hold itself back from such an extreme ruling ? Even if they only allowed the legislatures to disregard court rulings on election day matters like places and times and mail-in voting, gerrymandered state legislatures could still do much to ensure that votes for Democratic Party candidates are suppressed and disallowed.



We need to be asking our leaders, WHERE IS THE EMERGENCY LEGISLATION TO PREVENT THE SUPREME COURT FROM MAKING THIS RULING ?

In this first week of September, several liberal writers have noticed that the past legitimacy of the Federal judiciary has essentially “been hijacked and corrupted and needs some thorough-going reform.” (Josh Marshall of TPM). Dahlia Lithwick and Mark Joseph Stern at Slate say it most clearly, we must be seeking fundamental reforms of our current politically-biased judicial system. “Until and unless those of us who are shocked and horrified at lawless rulings by lawless Trump judges are prepared to propose structural solutions” such as expanding the Courts at all levels, legislating strong ethics standards for the Supreme Court, or legislating limits on the Court’s ability to consider voting rights cases or preventing the Court from adopting the Independent State Legislature Doctrine, there can be little hope in simply protesting radical Supreme Court decisions.

Lithwick and Stern further note, “There are solutions out there for the problem of Trump’s runaway judges. Expanding the courts—even just the lower courts—is the most bulletproof. Congress has periodically added seats to the federal judiciary from its inception to help judges keep up with ever-ballooning caseloads.” The Constitution clearly gives Congress the right to set the number of Supreme Court seats, and they have been changed for political reasons several times in American history.

WHERE IS THE EMERGENCY LEGISLATION TO EXPAND THE SUPREME COURT AS SOON AS POSSIBLE ?

Actually, the legislation is already written and introduced by Rep. Hank Johnson of Georgia, Chair of the House Judiciary's Subcommittee on the Courts (and others), it’s the Judiciary Act of 2021, HR 2584, and a recent diary at DK featuring an interview with Johnson is here. Basically, it has been stalled,, because as far as I can understand Biden and his advisors have been very reluctant to touch the issue.

Yet as David Kurtz at Talking Points Memo notes, Biden did pledge to use his Presidential powers to protect elections. The relevant quotation is “I will not stand by and watch elections I this country be stolen by people who simply refuse to accept that they lost. I will not stand by and watch the most fundamental freedom in this country, the freedom to vote and have your vote counted, and be taken from you and the American people.”

A fairly strong statement from Biden, however it is not clear exactly what steps he might be taking in what sort of cases and situations; it does appear to be focused on the sort of wild conspiracy claims that Trump allies and Q-Anon cultists were making in November and December 2020. Yet again, any legal interventions in court cases will ultimately go to the Supreme Court, where the radicals have so far refused to expand or enforce voting rights, and again, it seems highly likely that Clarence Thomas, just for one, is highly politically-biased against Democrats winning Presidential elections.

So clearly our task here in the grassroots, is to convince Biden and his advisors that they need to be considering this legislation to expand the Court and planning for this legislation TO HELP THEMSELVES FULFILL OUR NATION’S NEED TO PROTECT OUR ELECTIONS.

And that is the reason I have taken you on this journey in this diary, to urge you, to beg you, to please be writing and calling your Representatives and Senators, writing and calling the Whie House, calling on them to support expanding this radical, ethically-politically corrupt Supreme Court, to support HR 2584 and GET IT PASSED THIS YEAR ON AN EMERGENCY BASIS.

The Senate must be prepared to make whatever deals are necessary to got Manchin and Sinema (or the faint hope of Murkowski and Portman) to vote to change the filibuster and get this passed this year.

If that can’t happen, it needs to be part of an election pledge to get enough D. Senators elected to change the filibuster and pass it January ’23. And if the underpaid staff worker doesn’t cut of your call, please be sure to impress on them the need for the Congressperson to take this issue “up the line” in the Democratic Party, to help convince the leaders that the voters do see the need for this, that voters do want their Representatives to be speaking out about the radicalism and ethical-political bias of this Court and the need for change.

I’m fairly sure that all the well-informed people in Washington DC know about the Supreme Court’s radicalism, and the specific threat of Moore v Harper, we really need to hear our leaders talk about these threats and how they’re going to respond. Where are speeches calling out some the crazy decisions that lower-court judges are putting out, where are the speeches bemoaning the swamp our judiciary has become?

The Republicans are very determined to get their Federalist Society-trained clones onto the judges’ benches, but they sure aren’t very big on actually funding more courtrooms and judges, on having an ethics code that could be enforced on the Supreme Court or on standards and ethics that prevent judge-shopping or big trials being halted for years with legal skirmishing. They’re very concerned that no Republican Party actors ever have to respond to subpoenas or take responsibility for anything; they’re certainly not doing anything to improve the administration of justice for the masses of victims and prisoners at the bottom of the system. Why are our leaders so silent on this ?

In short, we need a huge grassroots push to keep a focus on the radicalism and lack of ethics of our current Supreme Court, and the thoroughly political processes the Republicans have used, over the last fifty years, to stuff the courts with biased judges while ignoring the social damage that an out-of-control, highly politicized and unsupervised judiciary is doing to actual people, and to the values that support our democracy.

So please write and call the White House and ask them to expand the Court, now, soon, immediately, before this radical Court does more damage. Please write and call your Congresspeople, and if you have more energy, write and call all the Democratic members of the House and Senate judiciary committees, tell them to support expanding the Court, tell them to be thinking up other emergency legislation to block the independent state legislature doctrine and other threats that are appearing in the Courts, ask them to be speaking out publicly about the lack of sound reasoning and judicial ethics that our Supreme Court is using while it tries to destroy our rights and institutions.

And it is legal and reasonable for you to write to the Supreme Court justices themselves; the diary I wrote on this a few years ago is now out-of-date by a Justice or two, yet it remains a basic guide if you would like that. Buck up the morale of the good ones, tell the crazy radical Republicans how unethical and destructive they are (but probably best to do so politely). In today’s political environment, I would even say to address your writing specifically to the clerks of the radical justices, especially if you’re in the same younger age group and can speak more of the same language as this cohort, these are the fanatical conservatives they’re recruiting to be the vanguard of legal fascism, ask them how far they want to go with destroying democracy, ask them if they think they can save plutocracy and privilege while they ignore climate change. Let them know the public is not ignoring what they’re doing to the ideal of equal justice under the law.

I could go on and on, but we’ve got lots of work to do. These next two months until the midterms are literally an important turning point in America and the world, can we protect our democracy or will we lose it ? Let’s get to work.

Personal note: If any readers are interested in a deeper analysis of our human history, and can appreciate my tendency to write long complex sentences, I’d like to invite you to visit my book-length, no clickbait website. Basically I was the hippie that tried to keep up with economics and geopolitics, I got an honors degree in History from a good school and was making a living with it, re-writing business and political news in 1978, when I decided that the science of History really need to grasp the challenge of covering EVERY SINGLE PERSON who has ever lived anywhere. That has led me on a very interesting intellectual journey, with some basic conclusions that I believe can be useful to any reasonable individual, while helping you understand historical situations you may be involved in, at either your personal level or the global level. That summary is in a relatively short article, a 20- or 30-minute read, and the rest of the site has bunch of autobiography, my best published work, and some deeper dives into various current events and geopolitical situations. Despite my scorning the typical SEO advice, and posting new material more like once a year than once a day, the site is getting nice global traffic, millions of hits over the years and maybe 12 to 50 visitors on it right now, I’ve been getting a lot of traffic from China and Hong Kong in the last year, and I’d be appreciative if you’d like to check it out as well.

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[1] Url: https://www.dailykos.com/stories/2022/9/9/2121745/-Where-is-the-Emergency-Legislation-to-Protect-Elections

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