American Democracy is in Dire Straits
... and not because Trump might try to steal the 2020 election.
I’m Michael A. Cohen, and this is Truth and Consequences: A no-holds-barred look at the absurdities, hypocrisies, and surreality of American politics. If you received this email - or you are a free subscriber - and you’d like to subscribe: you can sign up here.
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Keep Your Eyes on the Ball
I have a new piece dropping today at MSNBC on why I’m far less concerned about a stolen 2024 election than I am about the more worrying signs of democratic erosion happening in real-time. And right on cue, a new report in Politico on the GOP’s assault on voting rights in Georgia makes my case.
First came passage of one of the nation’s most restrictive voting bills. Then came efforts to overhaul the number of elected offices in one of Georgia’s largest counties.
Now, with the pending passage of a new congressional map, Republicans have taken another step toward dismantling the Atlanta-area engine that turned Georgia blue, powering President Joe Biden to victory in 2020 and flipping control of the Senate to Democrats.
Just as Georgia has emerged as a pivotal swing state, the GOP-controlled legislature has gone to extraordinary lengths to overhaul election administration, rewrite election rules and redraw political lines in the fast-growing metro region that is currently reshaping state politics.
The changes stand to roll back many of the recent Democratic Party’s gains or dilute Democratic power. And with a high-stakes Senate race, a governor’s race and several competitive House races in 2022, they could have implications that reach well beyond Georgia’s borders.
In Gwinett County, one of the fastest-growing counties in the state, Democrats made substantial political inroads in 2020, flipping a majority of the county’s office, including the sheriff and district attorney office, while winning control of the school board and county commission. So now Republicans in the state legislature are pushing legislation that would make the school board nonpartisan and increase membership on the county commission to dilute Democratic control.
These moves come on the heels of legislation enacted earlier this year that allows the GOP-controlled State Election Board to take control of county boards it deems “underperforming.” Six boards have already been restructured, shifting control from Democrats to Republicans — and in two of the six counties, moves to restrict voting access have already started. With a statewide election coming next year for both governor and senator, the GOP’s goal is not hard to figure out: limit voting access in Democratic areas to help Republican candidates prevail. Indeed, none of this restructuring appears to be happening in constituents where Republicans are dominant. This isn’t about stealing an election (although some of the changes increase such a possibility). It’s about ensuring that Republicans don’t get to that point.
As I noted in my piece, no Republican-dominated state legislature was willing to pass a single law the gave them the control to overturn an election result … but 19 this year alone have changed voting laws that make it more difficult to cast a ballot.
The Supreme Court of Injustice
Even more troubling than the growing restrictions on voter access is what happened this week in the Supreme Court. For several months now, women in Texas have, for all intents and purposes, been denied their constitutionally-protected right to an abortion. In September, a recently passed law allowing individual citizens to sue anyone — for a minimum of $10,000 plus attorney’s fees — who assists a woman in getting a constitutionally-protected abortion after six weeks went into effect. This includes not just abortion providers but also, potentially, a taxi driver who drove a patient to a clinic or any individual who helped pay for the procedure.
The law, which directly encourages vigilante justice, was written purposely to omit state officials from any role in enforcing its restrictions. The Supreme Court, rather than recognizing and striking down this obvious and transparent effort to avoid judicial review, gave abortion providers the narrow right to sue “executive licensing officials” who might take actions against them. But the Court refused to allow lawsuits against the state’s attorney general or court clerks to go forward. The Court also refused to put in place an injunction against the law or offer any thoughts about its constitutionality.
In a strongly-worded dissent, one member of the Court noted that “Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review. The clear purpose and actual effect of S.B. 8 has been to nullify this Court’s rulings.” The justice cited a court ruling from 1809 in noting, “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”
The justice was not Sonia Sotomayor, who compared the decision to "the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to ‘veto’ or ‘nullif[y]’ any federal law with which they disagreed.”
It was Chief Justice John Roberts.
When even a conservative jurist publicly acknowledges that a decision brought by his fellow Republican-appointed judges will have a deeply corrosive impact on not just the Supreme Court’s legitimacy but the Constitution’s, we are in unchartered territory. However, this is not a new phenomenon from the activist wing of the Court. For example, in recent oral arguments for a Mississippi law that would outlaw abortions after 15 weeks, the Court’s conservative justices made clear they are prepared to uphold the new restrictions or even throw out Roe v. Wade altogether. To do so would go against the long-standing Supreme Court tradition of upholding past precedents, also known as stare decisis. Ordinarily, judges would be loathe to go against past judicial precedents — but not this Court.
It is more apparent than ever that the Supreme Court is deeply politicized, hopelessly corrupted, and issuing decisions based on more personal views than a faithful reading of the law. In the Texas case, what’s the rationale for allowing the state’s vigilante abortion law to stand — and its obvious and blatant undermining of judicial review — other than a dislike of abortion rights by the Court’s conservative bloc?
Indeed, when it comes to abortion, what is the rationale for taking away a constitutional right that has existed for nearly half a century — and was codified in the early 1990s? In the rare instances when the Court has overturned past precedents, it’s cited a societal or technological change (like in its decision to allow same-sex marriage). There’s nothing like that happening today on abortion.
Not surprisingly, the Court’s decision in the Texas abortion law is already having profound political ramifications.
While I sympathize with what Newsom is trying to do, this is not a real solution to the problem created by the Court. It makes more problems than it solves. If vigilante justice is wrong in Texas, it’s wrong in California.
But what is perhaps the worst thing about this is that if California does pass such a law, there are lawsuits, and it rises to the level of the Supreme Court, I have zero confidence that the conservative jurists will make the same decision that they have in the Texas abortion law case. Instead, I expect that they will uphold the Texas law with a potent whiff of hypocrisy. When the Court has this little legitimacy and is viewed as primarily a political actor, not an interpreter of the law — because that’s how it’s acting — it’s a death blow to democracy. Combine that with Republican efforts to undermine voting rights, protect their members from electoral accountability via partisan gerrymandering, and Trump’s continued rhetorical assaults on the 2020 election, and it’s getting awfully difficult these days to call America a true democracy. In other words, we don’t need to wait until 2024 — and the prospects of a stolen election — to set our hair on fire. The theft is happening before our very eyes.
What’s Going On
Subscriber Paul Bradford asked about the baseball lockout in our Friday Zoom Chat, and right on cue, Anthony Fisher dropped a smart column on the topic.
The US military called the air war against the Islamic State “the most precise and humane in military history.” It turns out that was a lie.
Missouri’s Republican Attorney General, Eric Schmitt, is preventing county health departments in his state from protecting its citizens against COVID-19. The fact that he’s running for the Republican nomination for the US Senate is surely just a coincidence.
Read Greg Sargent on the damage being done by Joe Manchin to American democracy … and how to fix it.
Over the weekend, I picked up John Vaillant’s book on a tiger that terrorized a small town in Russia’s Far East, and I could not put it down. “The Tiger” is a fascinating read that will introduce you to a world that few of us knew existed.
I’ll have more to say on the stupendous, extraordinary, fantastic Succession season finale, but suffice to say … I liked it.
Musical Interlude
If I mention dire straits in the newsletter title, I think I have to post a Dire Straits song here. These are my two favorites.
This live version of “Romeo & Juliet” is lovely (unfortunately, it’s not a duet with Emmylou Harris).