Let me start out with the obvious. I'm not a lawyer. I'm not always the most disciplined of thinkers, and I improvise here. I know there are flaws in each of the things I'm about to suggest and don't mind hearing about them. And by the way, I very much liked the diary urging use of Authoritarian Party rather than Republican Party for the other guys. I don't do that below, but it is worth serious consideration.
The Supreme Court will, next term, hear arguments in the Moore v. Harper case that would uphold a legal theory that
- Because the Constitution provides for legislatures to send senators to Washington, and
- Because it isn't specific enough by today's standards when it provides for apportioned district elections to send representatives to Washington, and
- Because the 17th Amendment, which moved senator selection to a vote of a state's people, didn't specifically state how such elections would be conducted and didn't name state legislatures as specifically losing that power, therefore
- The legislatures can still run the elections unfettered by state Constitutions.
Drunk Uncle Sam Alito put this on the2020-2020 session when a dissent involving election law said that legislatures, not states, not state governments, certainly not states' constitutions, govern election law.
Since this court is inclined toward broad rulings, we can justifiably fear it will not only rule against North Carolina's court-ordered redrawing of gerrymandered legislature redistricting but will do so by codifying this legal theory so specious that no one dreamed to assert before the War on Democracy began in earnest in the late '90s.
I live in Florida. The Florida legislature has been behaving in this way for years. Voters recoiled from the absolutely horrible 2001 re redistricting by signing petitions and then passing, by margins no governor since Bob Graham has achieved, a pair of Florida Constitution amendments calling for compact, community-based districts and prohibiting districts be drawn to give in particular incumbents a distinctly partisan advantage. Rick Scott and the Florida Senate specifically ignored them in 2011,and got their brains beat out of them in court. Taxpayers, which is to say the same voters who specifically limited the governor and legislature, got stuck with the $25 million legal bill and no one suffered a penalty. In 2018, voters responded to Scott's and his predecessor Jeb Bush's aggressive limitations on ex-felons applying to have voting rights restored with another Florida Constitution amendment. The legislature basically neutered what the voters demanded. I digress. I'll stop.
I don't believe any institution committed to American republican democracy can simply wait for the arguments and then wait for the ruling. I also question whether, under the current circumstances, the federal judiciary and in particular the Roberts Court is entitled to the various presumptions it enjoys. In particular, the attacks on the concept of stare decisis cement the Republican Party's implicit position that the Supreme Court is not so much a court of last resort as a Super Legislature, in which votes are whipped and accumulated based on whims justified with sloppy writing reflecting lazy research and reasoning. The Court replaced Harry Blackman's 62-page, painstakingly crafted attempt to place the practice of abortion in a historical, medical and legal context and thus find a point where the doctor-patient relationship can and can't be regulated by states, with Alito's fluffy declaration that the court can simply declare Blackman in error without addressing issues of life, one's ownership of one's personhood, and all of that, and in particular Blackman's assertion that the facts set forth in Roe v. Wade indicate that criminal enforcement cannot be justly applied to abortion. I'm actually just as passionate, really more so about the rulings in the last week of the 2021-2022 SCOTUS term involving the EPA, New York gun law and public prayer. So don't think this is simply about abortion. If it is about anything “simply,” it is about the War on Democracy. Which brings us back to Moore v. Harper.
So if we don't wait, what do we do? I have some ideas, and I've made a point to include one that involves those of us who don't hold public office. Each carries a risk. Big surprise. Inaction carries a bigger risk. It cements that democratically elected governments paralyze themselves with stalemate and inaction, giving unwarranted legitimacy to authoritarians.
- Impeach Clarence Thomas now. The charge is that a $250K a year civil servant's household has enriched itself by $13M a year by Ginni Thomas selling political influence to right-wing causes. Compare that simple sentence with the Wolfson scandal that prompted Abe Fortas to resign in 1969. It is a hell of a lot clearer, involves a hell of a lot more money and extends to the War on Democracy itself. I'm fine including separate articles on confirmation perjury, and on item
- Consider impeaching Alito as well for lying to Congress. My own reading of the various confirmation quotes is that he came the closest to perjuring himself when he declared Roe to be settled law. The risk here is the appearance of over-reaching if it accompanies impeaching Thomas.
- Choose restoring the Voting Rights act as the issue we challenge the filibuster on, and in the spirit of the “moderate” position on that, launch a talking filibuster until the GOP caucus folds and allows a vote on the bill. Vote Cloture, and then once cloture failes, begin debate. This would require Vice President Harris to preside. I have the utmost confidence our side can outlast their side on this one.
- Examine the extent the Federalist Society has encouraged the War on Democracy and declare it a terrorist organization. I'm only half serious here, but would love to see a bunch of entitled suits placed on no-fly lists.
- The 14th Amendment doesn't stipulate how to enforce disqualifying public officials who attempt to overthrow Constitutional government. Now, I'm sure Drunken Uncle Sam believe that means therefore it can't be enforced, but how about this: It is an administrative, and not a criminal distinction. So all the House has to do is vote to accept the Jan. 6 committee's report, and then vote on a resolution agreeing with the Senate voting on its own committee that its facts are all correct. At that point, a lot of people are banned from holding state or federal office.
- On that note, the House Jan. 6 committee should use Ginni Thomas's communications with John Eastman and Mark Meadow to extend the coup investigation to the court itself. Her statement that her “best friend” was in agreement with the things she asked Eastman and Meadows to do was an overt statement that at least one justice would support their efforts to overturn the election. I do not believe the court deserves separation-of-powers protection here. For one thing, abandoning stare decisis removes that protection because stare decisis is what keeps it in place. For another, abandoning stare decisis indicates it is no longer measured justice, but rather another form of legislative decision making. I am totally fine with anyone investigating this court for sedition.
- Voters and legal or political institutions in states with Republican attorneys general should examine what constitutional limitations those states provide against legislative redistricting, and then challenge those A.G.s right to submit any kind of parallel arguments re Moore v. Harper. I am thinking in particular of the e17 who signed on to the Ken Paxton letter, which I've argued violated six of the seven clauses in Florida's bar oath. I want to hog tie Ashley Moody from getting involved in this. Among other things, it waste my money as a taxpayer.
- I'm going to rephrase 7 because I'm serious about it. I don't want to see officials from states with constitutions filing any bleeping amicus curiae briefs on behalf of not having constitutions. Sue me.
- Yes, vote. But also campaign. Only in the mildest terms have we confronted the War on Democracy in electoral campaigns. It's bleeping time. We need to start aiming our direct mail and even GOTV efforts at NPAs and Republicans. I'm a word guy (clearly, way too word guy), so I lean toward reasoned messages to people, hoping to change maybe 8 percent of the Republican minds and 20 to the 30 of NPA minds. Here is the kind of thing I'm kind of thinking:
“One of the rules of political persuasion is to not blame your voters, to mainly remind a voter he or she is a good person, validate the voter. That's well and good, but then you go and tell me you actually like Ron DeSantis for things like yelling at a group of teen-agers wearing masks. Think about it. They're standing behind him at an event. He invited them, and then after the event began, when the videos were running, he yells at them about behavior each of them considered basic courtesy at a public event, and then used the video of it to raise money. Is that who you are?
“Similarly, you have an organization, Special Olympics, who comes to Florida to hold its national competition. Their participants include at least one high-risk COVID, but you go and threaten then with a $27.5million fine if they don't drop their mask requirement to participate. Is that who you are?”
Thanks for bearing with me,