Snippets

At a recent townhall forum with law enforcement officials in a small community, a police chief asked the public to refrain from judgment when a video shows a police officer doing something bad until all the information is presented. “The video may appear different in a broader context.” While I was watching a video of a Kenosha police officer pointblanking numerous bullets into the back of Jacob Blake, a crawl said that a police organization asked people to refrain from judgment until all the information was in, and a reporter after the video said the state investigation might take thirty days. I agree that we all should refrain from hasty judgments, but in my years as a public defender, I never once heard the police after arresting or charging someone who was not a fellow officer urging that we refrain from judgment until all the information was in.

Orson Welles was born in Kenosha, Wisconsin.

In the maddening, marvelous, incomprehensible, and insightful Gravity’s Rainbow by Thomas Pynchon, Tyrone Slothrop is given “truth serum” as investigators try to understand why Slothrop’s sexual adventures occur where German V2 rockets explode twenty-four hours later. While under the influence of the drug, Slothrop does a riff on the phrase, “You never did the Kenosha Kid,” altering its punctuations and emphases and thereby changing its apparent meaning. A certain sort of person still debates who or what the Kenosha Kid is.

“If there are infinite meanings, there is no meaning.” Ottessa Moshfegh, Death in Her Hands.

Do the victors write the history? My friend’s niece is majoring in Asian studies at a university in Boston. On August 6, he asked if she knew what happened that day. She replied, “It is the 75th anniversary of the atomic bomb dropped on Hiroshima. Some dates you always remember.” He: “Just like December 7, 1941.” Pause. Further pause. She: “What happened then?”

I have a negative reaction whenever I hear a politician say—and “statesmen” (or is that “statespeople”?) of all stripes do—“The American people want. . . .” What follows can be any political position the pontificator proposes: a tax cut, a balanced budget, a magical tax cut that will lead to a balanced budget, aid to schools, a cut in school aid, more aid or less to localities, even more military spending, kneeling or not kneeling at various times, the deployment of drones to Dakar. I am part of the American people, and I resent office holders telling me what I want. Furthermore, I know that others of my fellow countrymen (people?) don’t always want what I want. We Americans don’t all agree—dare I say that we are a dise nation. Politicians, feel free to tell me what you are advocating and telling me why. I will decide whether I want what you want. But don’t tell me what I want.

Is it possible to joke about the recent headline: “Trump requests mail-in ballot for Florida primary”?

Word of the day: Coredom. It means covid boredom.

Birthering Trump (concluded)

Kamala Harris does not fall into the groups—Native Americans and children of diplomats–that the Fourteenth Amendment’s clause “subject to the jurisdiction” of the United States was meant to exclude. The new birther argument about Harris instead centers on her parents’ immigration status when she was born. It contends, I think, that unless her parents were lawful permanent U.S. residents at her birth, and not just here on student visas or some other status or here illegally, she is not a citizen. According to this new theory, the Fourteenth Amendment requires a person when born to be subject to the complete jurisdiction of the United States. We can debunk this position: this is not in the text of the Constitution; it is a logically incomprehensible proposition: and the most apposite Supreme Court case held against it.

But I don’t want to debunk the theory. Instead, I want to give birthers their due and take it seriously and apply it to Donald J. Trump. Let’s ask the truly important question: Is Trump a natural born citizen?

Trump’s mother Mary Ann MacLeod Trump was born May 10, 1912, in Scotland. Supposedly, she supposedly obtained a visa to come to the United States in 1930. (Have you seen that visa? In our history, many people not from primitive toilet countries have come here illegally. Get on it, birthers.) However, she apparently went back and forth between Scotland and the United States several times in the 1930s and remained at least sentimentally attached to her homeland all her life. MacLeod married Fred Trump in 1936, and reports say that she was naturalized on March 10, 1942, in Brooklyn. (Have you seen those naturalization documents? Have you seen the long form naturalization papers? Get on it, birthers.) People do lie about being naturalized or at least Trumps do. Fred and Mary Ann Trump reported on the 1940 census that she was naturalized when she was not. (Why did they lie about this? What were they hiding? Get on it, birthers.)

Donald Trump was supposedly born on June 14, 1946, in Queens, New York, but have you seen that birth certificate? Reports say that his mother “returned to her home area in Scotland often during the course of her life.”  (She declined to speak English there as if she was a foreign agent.) Is it possible that Donald was actually born in Scotland on one of her, as far as we know, secret trips to the Hebrides? Birthers, have you looked for birth records in the U.K. to see if Trump was born there?

Of course, birthers should not accept that Trump’s mother was a citizen when he was born until those authenticated and not forged naturalization papers are produced and it is explained why the parents lied about the naturalization. (Was the naturalization, if it did occur, a product of fraud?) If those unproduced records show that the mother was naturalized in 1942, she was a U.S. citizen when Donny was born, but if we accept the contentions about K. Harris, both parents would have to be citizens or permanent residents to make the child subject to the complete jurisdiction of the United States when born. What about Trump’s father?

Standard sources say the president’s papa was born in New York City, but Donald J. Trump is not a standard kind of guy. At least three times the president has said that his daddy was born in Germany. Birthers should take Trump at his word about his ancestry. Surely, you don’t think that he would ever, ever say anything that was not true. Clearly, then, the important issue becomes whether der Vater was a citizen or at least a permanent resident when the Trumpster was born. Birthers, demand that the president produce the immigration and naturalization records of his old man. If he can’t, and I for one am quite confident that he cannot, then the conclusion must be that Trump’s father was here illegally and that he was neither a citizen nor a permanent resident when the wunderkind was born. Birthers, show that you are not just racists and also want to make sure white people are eligible to be president. Show that you are not just right wing loonies but want to check on the bona fides of all candidates even if they are right wing loonies. Start checking, and you might find, that by your logic, Trump is not a natural born citizen and cannot be president.

Who out there knows anything about the birth of Mike Pence?

Birthering Trump

Another birther conspiracy. This one also concerns a person of color. This time it is Kamala Harris.

A vice president must have the same three constitutional qualifications as a president. The person must be a “natural born Citizen” of the United States; must be at least thirty-five years old; and must have been a resident within the United States for at least fourteen years. (I know that many people don’t really want to believe that New York City where Trump was a resident for nearly all his life is part of the United States, but I don’t think anyone will suggest he does not meet the fourteen-years-a-resident requirement. His residency now is Florida where he can mingle with the people of a certain sort at Mar-a-Lago and where he has requested a mail-in ballot.)

Obama birthers focused on the “natural born Citizen” language. The requirement has been usually interpreted to mean that a person must be a citizen upon birth to qualify for the presidency and that a naturalized citizen cannot become president. However, the requirement in the Constitution’s Article II does not simply say “a born Citizen” or “a Citizen when born.” It includes the qualifier “natural.” What did this qualifier mean to the nineteenth century men who drafted and adopted the Constitution?

I don’t know, but if a person can be “natural born,” there must be people who are non-naturally born. Is it a “natural” birth within the meaning of our 1789 Constitution if the delivery was by caesarian section; if the baby was conceived by artificial insemination; if the mother used sedatives during labor? I don’t understand why those subject to conspiracy theories have not been presenting ideas on “natural.” Unfortunately, however, I don’t have any baseless, outlandish, stupid theories of how this word could disqualify Trump or anyone else.

The original Constitution used the term “citizen,” but it did not define how citizenship was obtained or what it meant. The Fourteenth Amendment, adopted in the wake of the Civil War, states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Even the least able of constitutional scholars know that the purpose of the amendment was to give or ratify citizenship of Blacks. Any Black born in the United States is an American citizen. The Obama birthers claimed, without evidence, that he was born in Kenya or Indonesia or somewhere other than Hawaii. Although they presented no proof that he was born other than in the United States, they demanded that he produce a birth certificate, and after that, they whined for a long form birth certificate. Even after that was presented, some still grumbled about fraud or forgery.

However, even if Obama were born in Kenya, it would not tell us that he did not meet the constitutional requirement to be President—that he was not a natural born citizen. The Fourteenth Amendment does not purport to define the natural-born-citizen requirement of Article II, and it does not state that the only way you can be a citizen is to be born in the United States or to be naturalized. Consider two American citizens on a sojourn in a foreign land when a child is born unto them. That little miracle was not born in the U.S. and does not have the birthplace citizenship defined in the Fourteenth Amendment, but we have not required that child to be naturalized to become a citizen. There are other paths to citizenship than what is defined in the Fourteenth Amendment. A law confers citizenship on this foreign-born darling when delivered, and if the Constitution is requiring citizenship at birth, this love-of-their-lives in thirty-five years, if fourteen of them include residence in America, is eligible to be President. Obama was born to an American mother. If that made him a citizen at birth, the Fourteenth Amendment was irrelevant to whether he met the Article II requirement. The birthers, however, as far as I know, never addressed that when they said, erroneously, that he was not born in America.

The new nest of birthers concede that Kamala Harris was born in the United States but contend that somehow she still is not a natural born citizen. The argument has something (nonsense can never be fully understood) to do with the Fourteenth Amendment’s clause that a person born in this country is a citizen only if “subject to the jurisdiction thereof.”

This phrase was put into the Constitution because of Native Americans and diplomats. In legal theory, Indian tribes were sovereign nations, and their members were subject to tribal law. Americans may have only sporadically, at best, respected the sovereignty of Native Americans, but the drafters and adopters of the Fourteenth Amendment, while desiring Blacks to have citizenship, did not want citizenship for Native Americans and inserted that subject-to-the-jurisdiction-thereof clause to prevent birthright Indian citizenship.

The Fourteenth Amendment’s drafters and adopters did not want birthright citizenship for children born to diplomats on American soil either. Because of diplomatic immunity, diplomats and their families are not subject to the laws of the United States, and because of the restriction in the Civil War Amendment, children of diplomats born in the United States do not have automatic citizenship.

(continued August 24)

In Spite of the People (continued)

In the swing state of Pennsylvania in 2016, Trump did significantly better than Romney had four years before. Trump received 2,912,941 votes while Romney got 2,619,583. This increase had two components. About 376,000 more ballots were cast in 2016 than in 2012, but in addition Trump did better percentagewise. He got 48.8 percent (Clinton got 47.6 percent) while Romney got 46.8 percent (Obama got 52.0 percent) of the Pennsylvania vote. This would indicate some sort of Trump Revolution, but, if so, it was a limited one. It did not reach a majority. But notice something else: Trump and Clinton together garnered 96.4 percent of the total ballots, while in 2012, the major candidates received 98.8 percent in Pennsylvania. The third parties nearly trebled their votes in the four years, from 69,000 to 192,000. Their share went from 1.3 percent in 2012 to 3.6 in 2016. Trump won the Pennsylvania plurality by 70,000 votes while the third-party votes increased by much more than that. If Pennsylvania indicated a Trump Revolution, it also indicated a Third-Party Revolution, a move to third parties that allowed Trump to get the plurality and Pennsylvania’s electoral votes. Did Trump really carry Pennsylvania because of a Trump Revolution or because Clinton, whatever the reasons, was not a good candidate, and a sizeable number of voters went to third parties as a result wanting to vote neither for Trump nor Clinton?

The Michigan turnout did not increase in 2016 as much as the Pennsylvania vote did—65,000 more ballots were cast than in 2012. Trump, however, did get 265,00 more votes than Romney and garnered 47.3 percent of the total compared to Romney’s 44.6. But again “others” made the difference. In 2012, only 1.4 percent of the ballots were not cast for the major parties, while in 2016 it was 5.2 percent, with the totals increasing from 65,000 to 250,000. Trump’s plurality (again not a majority) was a mere 10,000 votes. The move to third parties again allowed him to win a plurality and get all of Michigan’s electoral votes.

In Wisconsin, 128,000 fewer ballots were cast in 2016 than four years earlier, and Trump got only 1,500 more votes than Romney. That doesn’t indicate a Trump Revolution as much as it appears to be a lack of enthusiasm for both major candidates. However, Trump did win the plurality at 47.9 percent compared to Romney’s losing percentage at 45.9. Trump’s margin was 22,000 votes, and again the third parties swung the state. In 2012, they got 28,000 votes and 0.9 percent of the total. In 2016, third parties garnered 137,000 votes accounting for 5.4%.

What does this indicate? Was there really a Trump Revolution that has changed the electoral landscape? Trump took these three key states, but he did not get a majority in any of them. In other words, most voters were against Trump. In each of them, he won because Clinton performed more poorly than he did. As a result, third parties surged tipping each state to Trump.

What does this mean for the future? Is there an enduring Trump Revolution that has shifted the electoral patterns? Perhaps the first thing to note is that he did not get the majority of the vote in the country. He did not even get the plurality. What is seldom noted is that the percentage he did get was not better than what Romney got four years earlier. This certainly is not a revolution.

In some key states, however, he did do better than Romney, but even so, he did not get a majority in them, and third parties surged. Of course, the best guarantee of his winning such states this time is to get more than 50 percent of the vote. At least so far, however, polls do not indicate that this is likely. Trump’s presidency has appealed strongly his 2016 base, and he has failed to attract additional supporters outside that base.

If his support continues at less than 50 percent, Trump has to pray (although I doubt he does) that the third-party surge will continue into the upcoming election so he can win electoral votes with only pluralities. That, of course, is the point to Republican support for the bizarre presidential campaign of Kanye West—the hope that it will siphon votes that would otherwise go to a Democrat. So far, at least, there is no indication that third parties will get the percentage of votes that they did last election when many voters did not like either candidate. My guess is that many of the voters for the Libertarian or Green parties assumed that Trump would not win but did not want to vote for Clinton. Checking a box for a third party was thought to have no real consequences while preserving a sense of integrity for the Clinton doubters. Voters this time are unlikely to think this way. They are more likely to realize that votes for third parties can have consequences and help elect someone they don’t want. This time around, they are likely to realize that they should make a choice between Trump and Biden even if they don’t much like either and not vote for a third party. Furthermore, in 2016 voters who liked neither Trump nor Clinton but voted for one of them rather than a third party candidate overwhelmingly broke for Trump. Polls now show voters who like neither Trump nor Biden will overwhelmingly vote for Biden.

It is a long way to the election and much can happen, but at least for the moment Trump cannot count on a high level of third party votes to allow him to get crucial electoral wins with pluralities. And besides helping Kanye to get on ballots, there seems to be nothing Trump and Republicans can do to shift votes from Biden to a third party. They, however, have no doubt learned something else from 2016 and other elections: Voter suppression can help clear a path to a conservative victory.

(concluded August 19)

In Spite of the People

It’s election season, but now it always feels that way since we seem to have a perpetual election season. This campaign stretch may feel different from past ones, however, because of the president who seems to have transformed the political landscape. On the other hand, although he has held the executive office for closing in on four years, perceptions of him have changed remarkably little during that time. He seems neither to have attracted many new supporters nor has he driven many away. He has inhabited the same landscape since his election.

If this election season is different from the last one, it is not due to Trump who remains the same but because Hillary Clinton is not the Democratic candidate. For whatever the reason, many voters who did not vote for Trump could not vote for Clinton. They voted for third party candidates instead, and in key states these votes for Libertarians and Greens gave Trump pluralities and the decisive electoral votes. Trump, although he is not about to admit it and perhaps in a delusion does not believe it, did not get the most votes in the country, but he also did not get majorities in key states that he won.

Trump certainly has passionate followers. This gives the impression that he unleashed a new conservative juggernaut and that the last election was a revolution, a Trump Revolution. That has been overstated. If there was an electoral transformation, it was not by a majority of the electorate. Even if it is true that he attracted many voters that had not before voted Republican, we should also realize that he drove away at least as many voters who could have been expected to vote Republican.

          Compare 2012 and 2016 election results. (Different sources do not always give the same nationwide vote totals, but, for consistency, I am using figures from the Federal Election Commission website.) In 2012, Mitt Romney got 60,932,152 votes. Four years later, Trump received 62,984,825. Trump got two million more votes than Romney but that does not mean that he made great inroads into previously Democratic voters.          Instead, about 7.5 million more people voted in 2016 than 2012. With more voters as the country’s population increased, it is not surprising that Trump got more votes than Romney, but he did not get even close to a majority of that increased vote. Perhaps more revealing than the vote totals for Romney and Trump is the percentage of the vote for each. Romney received 47.21 percent of the nationwide ballots, while Trump got 46.09 percent. In other words, there was no dramatic swing to him compared to the previous election. Analyses I have seen expend a good deal of effort dissecting the voters Trump attracted; they also ought to equally examine the voters Trump drove away. For example, The Great Revolt: Inside the Populist Coalition Reshaping American Politics by Salena Zito and Brad Todd mentions that “Trump’s margin was weaker than Romney’s in 86 of the 100 most educated counties—a fact that held true regardless of the jurisdiction’s normal partisan leanings.” But the authors set out only to interview voters in some swing states who shifted from Obama to Trump when there were at least as many voters who swung away from Trump. If that first group of Obama/Trump voters constitutes some new populist coalition, how should we label the at-least-as-significant second group of Romney/not-Trump voters?

          The real takeaway from the 2016 election is not that Trump did so well, but that Clinton did so poorly. Even with more voters in 2016 than 2012, Clinton got slightly fewer votes than Obama—65,853,516 to 65,899,660—with a big drop in the percentage of the ballots. Obama got a majority of the vote, 51.6 percent, while Clinton got 48.18 percent. Trump did not get a higher percentage than Romney four years earlier, but Clinton got significantly less than Obama. Wasn’t the revolution not so much for Trump as against Clinton?

          Perhaps the real revolution in 2016 was not for Trump but in favor of third parties. Obama and Romney together accounted for 98.8 percent of the vote. Clinton and Trump together only received 94.3 percent. The combined Libertarian and Green vote increased by over 300 percent. That third-party total went from 1.7 million in 2012 to 5.9 million in 2016.

          Much has been made of states that Obama won, but whose electoral votes went to Trump and swung the election to him. Let’s look more closely at three of them: Pennsylvania, Michigan, and Wisconsin.

(Continued August 17)

First Sentences

“Harry Truman needed a drink.” Chris Wallace with Mitch Weiss, Countdown 1945: The Extraordinary Story of the Atomic Bomb and 116 Days that Changed the World.

“Her name was Magda. Nobody will ever know who killed her. It wasn’t me. Here is her dead body.” Ottessa Moshfegh, Death in Her Hands.

“At exactly fifteen minutes past eight in the morning on August 6, 1945, Japanese time, at the moment when the atomic bomb flashed above Hiroshima, Miss Toshiko Sasaki, a clerk in the personnel department of the East Asia Tin Works, had just sat down at her place in the plant office and was turning her head to speak to the girl at the next desk.” John Hersey, Hiroshima.

“Late one evening toward the end of March, a teenager picked up a double-barreled shotgun, walked into the forest, put the gun to someone else’s forehead, and pulled the trigger.” Fredrick Backman, Beartown.

“It was no sensible place to build a great city.” Gary Krist, The Mirage Factory: Illusion, Imagination, and the Invention of Los Angeles.

“Deacon Cuffy Lambkin of Five Ends Baptist Church became a walking dead man on a cloudy September afternoon in 1969.” James McBride, Deacon King Kong.

“White people in North America live in a society that is deeply separate and unequal by race, and white people are the beneficiaries of that separation and inequality.” Robin DiAngelo, White Fragility: Why It’s So Hard for White People to Talk About Racism.

“Over twenty years ago a gentleman in Asbury Park, N. J. began manufacturing and advertising a preparation for the immediate and unfailing straightening of the most stubborn Negro hair.” George Schuyler, Black No More.

“William Moulton Marston, who believed women should rule the world, decided at the unnaturally early and altogether impetuous age of eighteen that the time had come for him to die.” Jill Lepore, The Secret History of Wonder Woman.

“One of the very first bullets comes in through the open window above the toilet where Luca is standing.” Jeanine Cummins, American Dirt.

“In the late nineteen-sixties, I was working in rented space on Nassau Street up a flight of stairs and over Nathan Kasrel, Optometrist.” John McPhee, Draft No. 4: On the Writing Process.

“The man in dark blue slacks and a forest green sportshirt waited impatiently in the line.” Patricia Highsmith, The Blunderers.

Pence and the Demise of Conservative Jurisprudence

          In a recent interview on the Christian Broadcasting Network, vice present Michael Pence labeled John Roberts, the Chief Justice of the United States Supreme Court, a “disappointment to conservatives.” Pence cited some of Roberts recent decisions about LGBT workplace discrimination, immigration, abortion, and religious demands for favored treatments. Pence, however, was not making jurisprudential or constitutional comments in criticizing the Chief Justice. Pence was trying to score political points. He wants to make Roberts into a campaign issue. Pence insisted that the Chief Justice’s decisions “are a reminder of just how important this election is for the future of the Supreme Court.” He is concerned that the judicial appointments are not the campaign issue that they were four years ago. “We remember the issue back in 2016, which I believe loomed large in voters’ decisions between Hillary Clinton and the man who would become president of the United States,” he said. “And some people thought that it wouldn’t be as big an issue these days. But I think that’s all changed.”

          Pence apparently does not believe that Chief Justice Roberts is sufficiently conservative, that the Court needs a greater number of conservative justices, and that the reelection of Trump is necessary for those appointments. The comments, however, left open an important issue: How does Pence, or conservatives generally, or the religious people Pence was trying to reach on the Christian Broadcast Network define a conservative or “good” Supreme Court Justice? In discussing recent cases, Pence indicates that his touchstone is the outcome that a justice reaches. He expects a “conservative” justice to rule against abortion, Obamacare, and immigration, and in favor of religious claims. Other conservatives might expect conservative justices to side with business, with law enforcement, with gun owners, against regulations, against campaign finance restrictions, and against voting rights.

          However, assessing a justice against what are thought to be desirable conservative outcomes is measuring the justice against political principles, not legal ones. Conservatives used to decry liberal justices as unprincipled, claiming that the judges did not follow neutral legal principles and were only interested in reaching results justices personally desired. Judges, however, are not supposed to act as politicians or even lawyers. As an attorney, when I represented a client on appeal, I started with the desired result, which was usually seeking to overturn a criminal conviction. I then sought out precedents, arguments, and reasonings that I hoped would lead to the desired result. I was not acting neutrally. When judges do something similar and seek out justifications for a result they want, the judge is not acting as a judge but as a political partisan. A judge is supposed to use neutral principles and follow them to wherever that might lead, even if that is not the result desired by political instincts.

          Not all nonpartisan judges, however, agree on what neutral principles should be applied, and it was the selection of the judicial methodology that supposedly defined conservative jurists, notably Antonin Scalia. They believed in “strict construction,” “originalism,” or “original public meaning.” (I have discussed these terms earlier on this blog. You can search for them.) They believed in enforcing the text of a statute and did not seek out the drafters or adopters’ intentions in passing a law. They believed that precedent was important and should never be disregarded lightly.

          Pence, however, did not mention any of these conservative jurisprudential principles in complaining about Roberts. Instead, he emphasized the Court’s June ruling that ruled unconstitutional a Louisiana law requiring abortion providers to have admitting privileges at local hospitals. “That’s a very modest restriction on abortion providers, but a narrow majority in the Supreme Court still said it was unacceptable,” Pence said. “And I think it’s been a wake-up call for pro-life voters around the country who understand, in a very real sense, the destiny of the Supreme Court is on the ballot in 2020.” (Pence’s notion of “modest” is striking since it was expected that the state rule would have forced all but one of the Louisiana’s abortion providers to close. I wonder if Pence would label as “modest” a gun control measure that would cause all but one of Louisiana’s gun shops to shutter.)

          Pence did not mention that only a few years ago, the Supreme Court had struck down an almost identical admitting-privileges requirement from another state. Roberts in his recent opinion wrote that he felt compelled by good, what might say, conservative jurisprudence to follow that precedent. My point, however, is not to defend Roberts or his decisions. (Roberts wrote the opinion and was the fifth vote in one of most important and least defensible Court decisions of last generation—Shelby County v. Holder, where the conservative justices aborted much of the Voting Rights Act thereby giving political conservatives more power.) Instead, we should see that the conservative Pence does not really want conservative justices. He wants judges who reach the “right” political, religious, and social outcomes as he as a conservative politician defines right. He does not care about neutral judicial principles, whether they be conservative principles or not. He wants a political, activist court of the kind conservatives used to rail against. And, once again, conservative principles disappear.

The vice president’s criticism of the chief justice’s jurisprudence comes after Roberts sided with the high court’s Democratic appointees on several occasions in recent months, dealing the Trump administration defeats on issues including LGBT workplace discrimination, immigration and abortion.

Roberts, an appointee of President George W. Bush, also joined his Democratic-appointed colleagues two weeks ago when the court rejected a Nevada church’s request to block the state’s cap on attendees for religious services amid the coronavirus pandemic.

John Roberts

Supreme Court Chief Justice John Roberts. | Leah Millis/AP Photo

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The court’s public information office did not immediately respond to a request for comment from Roberts on Pence’s interview.

Following the court’s rejection of his attempt to end the Deferred Action for Childhood Arrivals program’s protections for roughly 650,000 immigrants, President Donald Trump pledged in June to unveil a new list of potential justices ahead of November’s general election.

The announcement by the president represented a reprisal of a campaign tactic that helped him shore up conservative support during his 2016 White House run, when he issued a list of candidates he said he would consider appointing to the Supreme Court in an effort to win over evangelical voters.

“He did that in 2016. He kept his word,” Pence said Wednesday of Trump’s list. “He’s going to do that in the fall of 2020, and in the next four years, he’ll keep his word and appoint more principled conservatives to our courts.”

Since assuming office, Trump has routinely touted his presidency’s rapid rate of judicial confirmations — including the hard-won installations of Neil Gorsuch and Brett Kavanaugh on the high court — to energize his base in public remarks and at political rallies.

But it was Gorsuch who sided in June with Roberts and the court’s Democratic appointees in the landmark LGBT anti-discrimination case, authoring the majority opinion ruling to protect gay, lesbian and transgender employees from being disciplined, fired or turned down for a job based on their sexual orientation.

Why Create Election Chaos? (concluded)

If Donald Trump is not reelected in the balloting, he will need to explain the result in a way that protects his ego. Think about the last election. Trump may be the only person ever who won an election and still claimed massive voter fraud. His narcissism had great trouble accepting the fact that he got three million fewer votes than Clinton, and he made the amazing assertion that there had been widespread illegal voting, a claim that if it had been accepted could easily have led to the conclusion that his victory was illegitimate. Of course, if he loses the 2020 election, he is going to say there was massive fraud, but he will not limit the claim to mail-in ballots; he will make that assertion about every aspect of the election. He has not needed a factual basis, evidence, or common sense for making such claims before, and he won’t in November either. It is a safe prediction that if he loses, electoral fraud claims will fly.

          But there is another reason besides his ego why Trump may want to delegitimize the election. He may think it provides a path for him to retain the presidency. The Constitution in Article II provides that electors shall be appointed by the method each state legislature has mandated, which is by election in all the states. Assume that the Democratic candidate gets the most votes in a state, but the legislature, controlled by Republicans and following the Trumpian claims of massive fraud, passes a resolution that the election was not legitimate—that it was not the kind of election authorized by the state—and therefore no electors were elected as a result of the balloting? This may seem farfetched, but we can be sure that a fraud drumbeat amplified by Fox News, social media, and right wing websites will convince a sizeable number of Americans that an election was being stolen from Trump and will laud the legislature’s “brave” action. Of course, we can anticipate that the Democratic electors from that state will cast their votes on the designated date, which by statute is the first Monday after the second Wednesday in December, which this year is December 14. We might then have a slate we could call “no electoral votes” and a slate of votes for the Democratic candidate. What then? The Constitution does not tell us. It only says, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the [electoral] certificates and the votes shall then be counted.” It does not say how to resolve a dispute about any electoral certificate.

          A federal statute, however, says that electoral votes shall be counted on January 6. If electoral votes are disputed, the state, including state courts, are to resolve the dispute before January 1, which would require chaotic, emergency actions in the states. If the state dispute is not resolved in time (I am simplifying here because the statute has many provisions), the Senate and the House meet separately to resolve the dispute. If both bodies do not agree on the resolution, then the certificate of the electoral votes sent by the governor of the state shall be determinative.

          There is an interesting twist on the resolution of disputed electoral votes. The Constitution provides that the terms of Senators and Representatives begin on January 3, but president Trump and vice-president Pence stay in office until January 20. Thus, the President of the Senate on January 6 will be Michael Pence, who could vote to break a tie in the Senate. Think about that.

          What happens if Congress determines that there are no valid electors from a state? Oh, let the fun begin. The Constitution states that “each state shall [Emphasis added] appoint” its allocated electors. Under usual legal parlance, “shall” means a requirement; the state must appoint electors. It can’t simply certify that it is appointing no electors. On the other hand, if the state determined its election required a do-over, it is unlikely that there would be time to hold another election before January 6. But what happens if the state refused to appoint electors and Congress did not agree to accept an alternative slate of electors? It would not matter, of course, if at least 270 electors had voted for one candidate or another, for that would constitute a majority of the 538 electors allocated by the Constitution. It is not clear, however, what would happen if, for instance, only 500 electoral votes were accepted. The Constitution states that the president shall be the person who got the “majority of the whole number of Electors appointed.” Does that mean 251 electors could determine the president or would it still take 270 votes? No one knows for sure. We do know that if no candidate gets the majority of electoral votes, the House of Representatives decides the outcome, but with an important twist. The House would not decide as it normally does for legislation by voting as a body. Instead, each state gets one vote—California has one vote and so does Wyoming—with the majority of the states determining the president. And the Constitution does not tell us what happens if a state’s representatives split equally between two candidates. Does each get half a vote, or is this a no-vote, which could be important in reaching a majority? Right now, the Democrats have a comfortable majority of the Representatives in the House, but the Republicans have a majority of Representatives in the majority of the states. On the other hand, the Constitution requires the new Congress to be sworn on January 3, three days before the electoral votes are counted, and it will be the Congress elected on November 3 that would make the determinations. But on the third hand, if a state contended that its presidential election was not legitimate, it would also be contending that its Representatives had not been legitimately elected. Now what? Let’s not go there.

          If Trump loses, he will contend that the election was not legitimate. If any state attempts to claim that its election was illegitimate, we can expect chaos. But chaos would be Trump’s friend. And this could be a reason why he is trying and will continue to try to delegitimize the election.

Why Create Election Chaos

          President Trump floated the idea of postponing the November 3 election. An outcry ensued, which is not surprising after one of his tweets, but this time all shades of the political spectrum denounced the idea. Republicans, Democrats, academics, columnists, constitutional lawyers all agreed that the president cannot postpone the election. A congressional law sets it, and it would take another law, not a presidential edict, to change it. Furthermore, the responders all agreed that the election date should not be changed. Even during the Civil War and World War II, elections went on as scheduled, and our present problems are not bigger than those of the past.  

          Trump may not have been concerned about the disagreements; he may only have been trying to generate an outcry. On the day of Trump’s postponement tweet, John Lewis’s funeral was being held. And then numbers were dropped that showed the economy in a historical freefall. With a positive portrayal of someone else and news that damaged reelection possibilities, Trump, being Trump, had to get people talking about him. He accomplished that. Trump may be ignorant of many things, but he, like a crying baby, knows how to focus attention on himself.

          Trump’s tweet, however, did something more. Even though several states have for years successfully conducted their elections largely without in-person voting, Trump suggested that the election be postponed until balloting could be done without the massive fraud that he says is sure to ensue from the expected wide use of mail-in ballots during the pandemic. This is a continuation of conservative cries of electoral fraud generally. Proof is not presented of the fraud claims, but it is not necessary. Eliminating the nonexistent false ballots has not been the goal. Instead, the fraud assertions lay the groundwork for advancing measures making it harder for some to vote. We may claim that ours is a democracy, or a representative democracy, but some partisans would like fewer people voting. “Voter fraud,” they shout. “We must have voter ID laws” . . . and fewer people will vote. “Fraud,” they shout. “We can’t have same day registration” . . . and fewer people will vote. “Fraud,” they shout. “We can’t have expanded early voting” . . . and fewer people will vote. “Fraud, they shout. “We can’t have a mail-in election” . . .and fewer people will vote. Our experience shows we have little voter fraud. However, our experience shows that there will be attempts to suppress the vote of certain groups, by those citing the prevention of voter fraud, no matter what methods of voting we use.

Condemn Trump if you want for his remarks about moving election day, but don’t let his provocation shift the focus from assuring an election that allows us to vote easily and equally in these difficult times. If a state plans to rely on mail-in ballots, an understandable choice during the pandemic, and you believe in our democracy, work to make sure that all who want or need these ballots get them in a timely fashion; that the requirements for filling them out are clear and simple; and that there are good methods for their timely return. We should not just concentrate on postponement tweets; instead, concentrate on good ballot design and post office performance. And then consider the best ways for efficiently and securely tabulating the results.

For in-person voting, we need to make sure that there are sufficient polling places with enough workers so that people can cast their votes easily. Each election we see voting queues that are hours long. These scenes should embarrass all who say they are proud to be an American. And, of course, these lines, surprise, surprise, are disproportionately centered in certain kinds of neighborhoods. All votes are supposed to count the same in this country. They don’t if in some places voters have to endure hours of standing or sitting to cast a ballot while other voters don’t. It should take no longer to vote in the city of Atlanta than in an affluent suburb of Atlanta, and we should be working to make that happen.

          Trump, however, was probably not so much attempting to postpone an election as laying groundwork for undermining the upcoming election. This should be a difficult task because no studies have shown that mail-in ballots disfavor Republicans. Indeed, in the present world, a mail-in election could favor the conservatives. Studies have shown that mail is more often misdelivered or not delivered in poor and minority areas, and if we have cutbacks in the coronavirus aid, we can expect a wave of evictions. People living in their cars or doubled or tripled up with relatives or friends or in shelters are highly unlikely to get their mail even if they make the effort to have it forwarded. With a mail-in election, slews of people may be effectually disenfranchised, and I doubt that these disenfranchises are disproportionately Trump supporters. A widespread dependence on mail-in ballots in a world of evictions could help Trump. Even so, Trump will want to be able to shout, or at least, tweet “unfair and illegitimate” if he loses the election. He is laying the groundwork to undermine the legitimacy of the voting.

(concluded August 7)

Snippets

I am not used to the new baseball season. I was startled seeing a line on a box score that said: “Attendance: 0.”

After Anthony Fauci’s first pitch fiasco at the opening baseball game, I watched a video of Trump playing catch on the White House Lawn with Mariano Rivera. It was not my most gracious moment.  I was hoping that the president would throw like an unathletic, eight-year-old girl. While his motion was not the best I had ever seen, it was not bad. And I found another way to be disappointed in life.

Our priorities are interesting. Baseball players and other athletes appear to get almost instantaneous results from Covid-19 tests. People I know have had to wait ten or twelve days to find out if they are infected.

“‘It’s not about being happy,’ he said, which was, and still is, the saddest remark I’ve ever heard.” Anna Burns, Milkman.

I read sad words recently. While foreign countries have long admired, feared, envied, imitated, and despised the United States, for the first time, foreign lands pity us.

Are there fights between Ivanka and Jared when they discuss which of them should be a presidential candidate? If not, what do they fight about?

“In my family, if we didn’t count our chickens before they hatched, I don’t think we’d have been able to do very much counting at all.” Johann Hari, Chasing the Scream: The First and Last Days of the War on Drugs.

How public figures are regarded often depends on the partisan leanings of the viewer. One group of people think Adam Schiff is an asshole. A different group think Devin Nunes and Jim Jordan are assholes. But don’t we all agree that Mitch McConnell is an asshole?

Have the proliferation of Zoom meetings lessened the rate of sexual harassment?

I have read that at the heart of the QAnon conspiracy is the belief that Trump will save the world from a vast pedophile ring. How is that reconciled with Trump’s words of good wishes to Ghislaine Maxwell?

The vehicle in front of me on the interstate had a sticker reading, “Keep America Great” as well as another Trump sign. This is not an unusual sight except that it was a commercial vehicle for a computer business. I wondered if it is a wise marketing move to put political slogans along side of the company’s phone number. Wouldn’t this drive away some customers? Or are more potential clients attracted than repelled by a partisan display? And if the political displays are some sort of marketing effort, are they tax deductible as a business expense?

“Fanaticism consists in redoubling your effort when you have forgotten your aim.” Santayana.