151 search results for ""14th amendment""

Tread carefully or go for it?

Pick your metaphor. Whistling past a graveyard. Tiptoeing through a minefield. Every day feels like the country is doing a tightrope walk between the Twin Towers. And we know what happened to them.

The question of Donald Trump’s qualification for any elected office is a hot potato neither the courts nor election officials nor Congress want to touch.

Hayes Brown writes:

Efforts to block former President Donald Trump from being on the ballot next year have yet to score a major win in court. Nobody in power seems willing to decide whether the 14th Amendment’s insurrection clause disqualifies him from returning to the White House. Instead, judges and state officials have either pawned off that decision to someone else or determined that there will be some other, better time to make a judgment.

The result is a rapidly shrinking window for that decision to be made. And, based on the standard in a ruling issued in Michigan on Tuesday, we might not know the answer until after all the votes have been cast on Election Day next year. It might be after the presidential electors have met and submitted their ballots. It might come down to Congress on Jan. 6, 2025, to decide whether Trump is even eligible to become president.

Earlier this year, legal scholars, including prominent conservatives, came out in support of the idea that Trump is constitutionally ineligible for office and that it fell to election officials to enforce Section 3 of the 14th Amendment. (That section bars from federal and state office anyone who previously swore to support the Constitution but then had “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”) Since then, much of the energy from democracy activists and lawyers has focused on convincing secretaries of state of the argument, but they’ve met with either hesitancy or outright rejection from officials. At best, as in the case of Michigan’s Jocelyn Benson, there has been an openness to acting — provided, that is, that a court rules whether Trump’s role in the Jan. 6, 2021, attack on the Capitol triggered the insurrection clause.

But one of the cases seeking such a ruling fell short on Tuesday. Judge James Robert Redford rightfully noted in his decision that Michigan state law doesn’t provide for the secretary of state to block a party from naming a primary candidate. The Minnesota Supreme Court reached a similar conclusion last week, finding that the question of whether Trump could appear on the general election ballot wasn’t “ripe” or “about to occur.”

Because there has been no primary in Minnesota and Trump is not the official candidate for the Republican Party. Yet. The court brought in a basin and washed its hands.

The Minnesota court didn’t close the door on another challenge later. But as my colleague Jordan Rubin noted, Redford suggested that even the general election might not be enough to warrant the courts’ intervening. Instead, Redford said, the whole thing might be a “political question” best left to the people or their elected representatives. The judge further noted that the Constitution’s 12th and 20th Amendments directly deal with the election of the president and the vice president and that both of them give that role to Congress.

It’s worth pausing here to take a step back and note that technically it’s the Electoral College that votes for president. And though the drafters of the Constitution foresaw electors as independent, well-respected members of the community who would adjudicate the candidates’ qualifications, that’s not how it has played out. Each state generally assigns its electoral votes based on who won the popular vote, which is reflected in partisan slates of Electoral College members. Those slates then vote for their parties’ chosen candidates, and those votes are then transmitted to Congress to be counted.

Congress amended the Electoral Count Reform Act  to prevent the kinds of electoral vote scheming for which Trump and his alleged accomplices face criminal charges.

Even Trump appealing any 14th Amendment ruling against him to the U.S. Supreme Court might not result in a final decision. The court could dismiss it as a nonjusticiable political question “beyond the reach of the federal courts,” as it did in Rucho v. Common Cause. They washed their hands too. That’s not so say the conservative majority would, but it could, as Brown notes.

WWCD: What would Congress do on January 6, 2025 if Trump won?

Bear in mind that this would be taking place in a world where Trump has won not only the GOP nomination but also the general election. While many of the pending cases may hope to reach the Supreme Court for a ruling ahead of the election, it’s possible that the conservative justices would also punt while citing the “political question” doctrine. If that’s the case, it’s difficult to see this as not being one of the biggest questions for members of Congress on the campaign trail leading up to 2024: “Will you vote to disqualify Donald Trump on Jan. 6?”

That’s exactly the kind of chaos that organizers hoped to prevent in trying to prevent Trump from being a candidate at all. Because, unlike his coup attempt, Congress in this case would be fulfilling its constitutional duty if it were to disqualify Trump when it counts electoral votes. It would be an act of delayed justice after the Senate acquitted him in his second impeachment trial and lost the accompanying chance to bar him from holding future office. At the time, the argument from Republicans like Sen. Mitch McConnell was that the courts would be the one to hold him accountable, a deeply ironic sentiment given the courts’ insistence that it’s a matter for Congress.

And yet, in a very real sense, it can’t be ignored that disqualifying Trump this way would be Congress’ doing exactly what Trump has, in his projection, accused Democrats of doing: trying to reverse the results of an election. The fact that Trump was most likely never eligible wouldn’t matter. The Republican Party, in allowing him to run and making him its nominee, will have known this was a possibility but will still support his cries that the whole system is rigged. And if we are forced to spend the next 14 months in suspense, it will only increase the chances that, when faced with this monumental decision, Congress will falter.

There’s not enough antacid in all the drugstores for this.

By hook and by crook

It’s not clear sometines whether the beleaguered 1965 Voting Rights Act (VRA) is as dead as a Norwegian Blue or just resting. The Act, explains Democracy Docket, was not just intended to address open discrimination, but the subtle kind as well, as Chief Justice Earl Warren wrote in 1969. Chief Justice John Roberts will go down in history for eviscerating and/or weakening VRA provisions.

Even then, The VRA is not quite dead yet:

Over the past few months, pro-voting forces have brought a series of lawsuits under lesser known and rarely litigated provisions of the VRA that seek to combat some of the more “subtle” — but nevertheless pernicious — voting laws that disenfranchise citizens across the country. From Washington to North Carolina and other states in between, these lawsuits are tapping into more obscure portions of the VRA in order to protect voting rights. 

You go to war with the VRA provisions you have.

Case coordinator Rachel Selzer names a few:

In Wisconsin, a new lawsuit challenges the state’s absentee ballot witness requirement under Section 201 of the VRA. 

A recent federal lawsuit brought on behalf of four individual Wisconsin voters alleges that the state’s absentee ballot witness requirement contravenes Section 201 of the VRA, which prohibits denying the right to vote on the basis of a citizen’s failure to comply with a “test or device.” Section 201 defines an unlawful “test or device” as any requirement that a voter must satisfy as a prerequisite for voting. 

Including “the voucher of registered voters or members of any other class.” Like a “supporting witness.”

Relying on Section 202(c) of the VRA, lawsuits in North Carolina and Washington challenge residency requirements for voting. 

That 1970 provision “abolished so-called ‘durational residency requirements’ as a precondition for voting in presidential elections.” Residency is distinct from a registration cutoff.

Despite the VRA’s clear mandate, states including North Carolina and Washington require their citizens to reside in the state for at least 30 days prior to the election in which they seek to vote. Two new federal lawsuits filed on behalf of the North Carolina Alliance for Retired Americans and the Washington State Alliance for Retired Americans allege that their states’ respective durational residency requirements flout Section 202(c) as well as the U.S. Constitution.

[…]

The Section 202(c) lawsuits also bring claims under the First and 14th Amendments, alleging that the durational residency requirements unconstitutionally burden the fundamental right to vote without a compelling justification. Both cases cite the Supreme Court’s 1971 opinion in Dunn v. Blumstein, which held that Tennessee’s durational residency requirements “deny some citizens the right to vote” and “impinge[] on the exercise of a second fundamental personal right, the right to travel.” 

Using Section 202(d) of the VRA, a Georgia lawsuit seeks to extend the time period in which voters can request an absentee ballot.

In particular, Section 202(d) stipulates that states are required to allow all qualified voters who will be outside of their election district on Election Day to cast an absentee ballot in a presidential election so long as they applied at least seven days before the election. 

Georgia previously comported with this federally mandated deadline up until 2021 when it enacted an omnibus voter suppression law, Senate Bill 202, in response to record high turnout in the 2020 general election. Under S.B. 202, the latest a voter may apply for an absentee ballot (via mail, email fax or online) is 11 days before an election — four days before the VRA’s prescribed deadline. 

Look closely at any voting-related statutory adjustments made by GOP-led legislatures for the subtle and not so subtle impacts. They’re trying anything and everything they can think of to suppress the vote and to make voting itself more of a challenge. Just as Paul Weyrich said so unsubtly in 1980.

Two can play at that game.

If you’re ineligible to run for president….

If Donald Trump wants admission to the dictators’ club with Vladimir Putin and Viktor Orbán and Kim Jong Un, he’ll have to prove himself worthy. That’s his plan.

You laugh? Just you wait. Right now he’s busy being prosecuted.

The former and would-be president’s antics on the witness stand Monday in his Manhattan financial fraud trial were as Michael Cohen predicted. Question his net worth and he’ll lose it. Trump was so fixated on maintaining his Richie Rich image that according to press accounts he never once mentioned the 2020 election being stolen from him. It’s that important to him.

Trump rambled. He blustered. He bragged. He insulted the judge and New York Attorney General Letitia James. New York Supreme Court Judge Arthur Engoron multiple times urged Trump’s attorneys to get their client under control. It was as useless as expecting a fussy two-year-old to behave in a fancy restaurant.

Former Watergate prosecutor Jill Wine-Banks said of Trump’s courtroom misbehavior, “This is why we need cameras in the courtroom. Hearing reporters describe Trump’s testimony and loss of control is no substitute for seeing it for ourselves. Let elected and appointed officials know you want cameras in all his trials.”

“Part of what Trump accomplished,” Aaron Blake noted, “was setting a tone for his other cases, including the criminal ones. Nothing will come easy when you go after Trump.”

He’ll get even if you try. He’s planning on it already, the Washington Post reported:

Donald Trump and his allies have begun mapping out specific plans for using the federal government to punish critics and opponents should he win a second term, with the former president naming individuals he wants to investigate or prosecute and his associates drafting plans to potentially invoke the Insurrection Act on his first day in office to allow him to deploy the military against civil demonstrations.

The 14th Amendment may make Trump ineligible to run for president. But the Constitution says nothing about running for dictator.

“It is time to be very, very afraid,” wrote Post associate editor Ruth Marcus.

Slouching towards Lower Slobbovia

Trump already has an enemies list, “including his former chief of staff, John F. Kelly, and former attorney general William P. Barr, as well as his ex-attorney Ty Cobb and former Joint Chiefs of Staff chairman Gen. Mark A. Milley,” say the Post’s anonymous sources. FBI and Justice Department officials are among his targets too, says another. And “Joe Biden,” of course, for having the temerity to beat him in 2020. And Biden’s family.

To facilitate Trump’s ability to direct Justice Department actions, his associates have been drafting plans to dispense with 50 years of policy and practice intended to shield criminal prosecutions from political considerations. Critics have called such ideas dangerous and unconstitutional.

Trump plans to go full Queen of Hearts if not biblical. “This is third-world-country stuff, ‘arrest your opponent,’” Stubbornovsky the Last said at a campaign stop in New Hampshire in October. “And that means I can do that, too.”

Much of the planning for a second term has been unofficially outsourced to a partnership of right-wing think tanks in Washington. Dubbed “Project 2025,” the group is developing a plan, to include draft executive orders, that would deploy the military domestically under the Insurrection Act, according to a person involved in those conversations and internal communications reviewed by The Washington Post. The law, last updated in 1871, authorizes the president to deploy the military for domestic law enforcement.

The proposal was identified in internal discussions as an immediate priority, the communications showed. In the final year of his presidency, some of Trump’s supporters urged him to invoke the Insurrection Act to put down unrest after the murder of George Floyd in the summer of 2020, but he never did it. Trump has publicly expressed regret about not deploying more federal force and said he would not hesitate to do so in the future.

The New York Times reported in July that Trump plans to “alter the balance of power by increasing the president’s authority over every part of the federal government that now operates, by either law or tradition, with any measure of independence from political interference by the White House.”

What may be most alarming is the lack of alarm among Americans in general, much less mobilization. Trump’s MAGA foot soldiers? They hunger to be led by their man-child-king. The rest seem blissfully unaware that the Party of Trump has abandoned democracy save for going through the motions.

From Salon:

“This is the nightmare scenario that to millions of Americans is unfathomable but realistically possible,” Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. “It is also the scenario that millions of Americans look forward to with glee and the opportunity for retribution against the enemies of Trump.”

What’s a little pogrom if the tree of Trumpism needs watering?

Don’t it always seem to go…

Tom Nichols frets in The Atlantic:

The coalition of prodemocracy voters—I am one of them—is shocked at the relative lack of outrage when Trump says hideous things. (The media’s complacency is a big part of this problem, but that’s a subject for another day.) For many of us, it feels as if Trump put up a billboard in Times Square that says “I will end democracy and I will in fact shoot you in the middle of Fifth Avenue if that’s what it takes to stay in power” and no one noticed.

Trump hasn’t taken out billboards, but at his rallies and press events he’s shouting it all as loud as he can, and the people around him are making plans to carry out his wishes. Meanwhile, millions of voters are folding their arms like shirty children and threatening to sit out the election because they don’t like their choices. Some are threatening to withhold support, in particular, for Joe Biden if they don’t get their way about student loans, climate change, or policy toward Israel. They are living in a booming economy that is outperforming any other developed nation since the start of the pandemic on many measures—and they are miserable and angry about it.

Many voters resent hearing all of this. They think they are being bullied into a binary choice between two candidates they do not like, and so they engage in wishcasting: If only someone could beat Trump for the GOP nomination (no one will); if only Biden would step down (he won’t); if only America didn’t rely on the Electoral College (it does); and so on. Trump and Biden are headed for a showdown unless illness or death intervenes. Even if Trump goes to prison, the Republican Party has become so fully corrupted that he could likely still run and get the nomination anyway. And the Electoral College isn’t going anywhere, either.

Trump aims not to make the mistakes he made in his first term. He’ll make new ones. It’s not clear he’s capable of learning from his old ones, but his antidemocratic acolytes have.

“We don’t want careerists, we don’t want people here who are opportunists,” said Project 2025 director Paul Dans. “We want conservative warriors.”

Guess who they’re going to war against?

He’ll stop Hummus from starting WWII in Sioux Falls

The former president has a full schedule of trials and court actions in addition to trying to run for president. It’s no wonder Donald Trump doesn’t know where he is from minute to minute.

In addition to his civil fraud case being tried in Manhattan, and U.S. District Court Judge Aileen Cannon trying to delay his Classified Documents trial for him in Florida, and ongoing probes by special prosecutor Jack Smith in the Jan. 6 case, and Fulton Cpunty D.A. Fanni Willis breathing down his neck in Georgia, Trump has lawyers trying to stop a case in Colorado that would ban him from the 2024 ballot there based on the 14th Amendment. A Colorado judge on Wednesday denied their motion to dismiss that suit.

All that and repeated violations of his gag order stemming from middle-of-the-night tweets from a man who seems to get little sleep. Is it projection that Trump settled on calling President Biden “Sleepy Joe”?

Today it appears Trump’s attorneys will have to defend him in a 14th Amendment case in Minnesota (The Guardian):

Attorneys at the Minnesota supreme court will argue on Thursday that former President Donald Trump should not be allowed to appear on the state’s ballots for president because of his efforts to overturn the 2020 election and role in the insurrection.

A group of voters wants the courts to weigh a clause in the 14th amendment, which disqualifies an “officer of the United States” who has taken an oath to defend the constitution from holding office if they have “engaged in insurrection or rebellion” against the country. In dozens of pages in their initial court filing, they cite examples of Trump’s election interference, from the fake electors scheme to his comments to rioters on 6 January 2021.

“Despite having sworn an oath to support the Constitution of the United States, Trump ‘engaged in insurrection or rebellion against the same, or [gave] aid or comfort to the enemies thereof,’” the voters argue.

With all that going on, is it any wonder Trump’s verbal slip-ups will be coming back to haunt him? (CNN):

Former President Donald Trump has made mocking President Joe Biden and questioning his mental fitness for office a core part of his campaign speeches – even as he experiences his own recent series of gaffes and verbal slips on the campaign trail.

“He’s always looking around, where do I go?” Trump said as he did an exaggerated impersonation of Biden walking around the stage looking confused at a campaign stop in Cedar Rapids, Iowa, last month.

Weeks later, Trump took the stage in Sioux City, Iowa, and mistakenly thanked supporters for coming out to Sioux Falls, South Dakota, before an Iowa state senator tried to discreetly correct him — a moment that was caught on a hot mic.

During a summit in Washington, DC, Trump claimed that Biden could “plunge the world into World War II” – which ended nearly 80 years ago – and appeared to confuse Biden and former President Barack Obama, saying he was leading Obama in election polls.

The recent missteps have created an unwelcome wrinkle for Trump, his campaign team and the larger Republican political apparatus. Republicans have questioned whether Biden is able to serve as commander-in-chief, pointing to his age and mental fitness. But their own primary front-runner seems to be suffering the same predicament, making their argument less potent.

Trump incorrectly said Viktor Orbán, the prime minister of Hungary, was the prime minister of Turkey – he quickly corrected that error. He has repeatedly mispronounced Hamas (huh-maas), the name of the Palestinian militant group that launched a deadly terror attack on Israel, as hummus.

And, during a rally in South Carolina in September, Trump confused former Florida Gov. Jeb Bush, one of Trump’s 2016 GOP rivals, with his brother, former President George W. Bush

“When I came here, everyone thought Bush was going to win,” he said at that rally.
“They thought Bush because Bush supposedly was a military person… he got us into the, uh, he got us into the Middle East. How did that work out, right?”

Who’s really sleepy?

Update: Livestream from Minnesota court here.

It’s Friday the 13th

Donald Trump’s attorneys this week argued in a Colorado case brought by Citizens for Responsibility and Ethics in Washington (CREW) that the Constitution does not prohibit him from running for office. Based on Trump’s Jan. 6 actions, CREW hopes to disqualify Trump from the state’s ballot under the 14th Amendment’s Insurrection Clause prohibiting any officer who has “engaged in insurrection” against the United States from holding a civil, military, or elected office unless approved by a two-thirds majority of the House and Senate.

But this is Donald Trump we’re talking about. And Trump attorneys. They argue the Constitution does not apply to him becuase he never took an oath “to support the Constitution of the United States” per the amendment’s language (Law & Crime):

“Section Three does not apply to President Trump,” the filing reads. “Section Three disqualifies a person from holding office only if he “previously [took] an oath, as a member of Congress, or as an officer of the United States, or as member of any State legislature, or as an executive or judicial officer of any State…’ Because President Trump was never a congressman, state legislator, or state officer, Section Three applies only if he was an ‘officer of the United States.’ But as that term was used in Section Three, it did not cover the President.”

[…]

“[T]he Presidential oath, which the framers of the Fourteenth Amendment surely knew, requires the President to swear to ‘preserve, protect and defend’ the Constitution—not ‘to support’ the Constitution,” the motion reads. “Both oaths put a weighty burden on an oath-taker. However, because the framers chose to define the group of people subject to Section Three by an oath to ‘support’ the Constitution of the United States, and not by an oath to “preserve, protect and defend” the Constitution, the framers of the Fourteenth Amendment never intended for it to apply to the President.”

You read that right.

“If they wanted to include the President in the reach of Section Three, they could have done so by expanding the language of which type of oath would bring an ‘officer’ under the strictures of Section Three,” the Monday motion argues. “They did not do so, and no number of semantical arguments will change this simple fact. As such, Section Three does not apply to President Trump.”

Cleanup on Aisle R

Meantime, with military aid urgently needed by allies Ukraine and Israel, and with threats of a widening war in the Middle East, and with funds for running our own country set to run out in days, the Party of Trump is in ccontrol of the U.S. House without a Speaker authorized to bring such measures for a vote in the House. The party’s lunatic fringe ousted Rep. Kevin McCarthy of California from that position ten days ago.

Things are going well with House Republicans today. Troy Nehls: “… a circus … utter chaos.” pic.twitter.com/LbkJvocGCx

— Ron Filipkowski (@RonFilipkowski) October 12, 2023

Last night, the apparent frontrunner for the speaker post, House majority leader Steve Scalise (R-La.), withdrew his nomination for lack of support. Scalise narrowly defeated Rep. Jim Jordan of Ohio in a caucus vote on Wednesday. He needs 217 votes and saw no path to winning after an hours-long meeting.

NBC News:

Exiting the meeting before it ended, Rep. Mike Rogers, R-Ala., openly fretted that his party’s narrow majority may never find the 217 votes necessary to elect a speaker.

He blasted eight Republican “traitors” — a word he used four times in a hallway interview — who voted with Democrats to remove former Speaker Kevin McCarthy and “put us in this situation.” And if those eight decide to back Scalise, Rogers warned, “then there’s just another eight like them” who could create further trouble.

“The bottom line is we have a very fractured conference, and to limit ourselves to just getting 217 out of our conference, I think, is not a wise path,” Rogers told NBC News, adding that Republicans may “absolutely” need some Democratic votes to elect a speaker.

Once again, the GOP needs Democrats to clean up the mess they created.

Heather Cox Richardson offers additional details:

The Republican chair of the Foreign Affairs Committee, Mike McCaul of Texas, today told reporters, “Every day that goes by, it gets more dangerous.” He continued:  “I see a lot of threats out there, but one of the biggest threats I see is in that room [pointing to where the Republicans were meeting], because we can’t unify as a conference and put a speaker in the chair together.” 

House minority leader Hakeem Jeffries (D-NY) today said it is “urgently necessary” for the Republicans to “get their act together and elect a Speaker from within their own ranks, as it is the responsibility of the majority party to do, or have traditional Republicans break with the extremists within the House Republican Conference and partner with Democrats on a bipartisan path forward. We are ready, willing, and able to do so. I know there are traditional Republicans who are good women and men who want to see government function, but they are unable to do it within the ranks of their own conference, which is dominated by the extremist wing, and that’s why we continue to extend the hand of bipartisanship to them.”

Journalist Brian Tyler Cohen, who hosts the podcast No Lie with Brian Tyler Cohen, summed up the day when he wrote: “The fact that ALL Republicans would rather fight over Scalise (who attended a neo-Nazi event) or Jordan (who allegedly covered up rampant sexual abuse) rather than simply work with Democrats to elect a Speaker says it all.”

Federal prosecutors slapped Trump wannabe, Rep. George Santos of New York, with a 23-count superseding indictment on Tuesday charging him with “‘repeatedly, without their authorization,’ distributing [donors’] money to his and other candidates’ campaigns and to his own bank account.” Santos refuses to resign. His vote is essential for Republicans seeking the speakership.

The most likely Republican to win the party’s 2024 nomination for president (in case you need reminding) is this guy:

This person is a fucking lunatic, Republicans have just stopped talking him, and everyone is going along as if the next election is business as usual. Strange times. https://t.co/RZvcQbLCV9

— Tim Miller (@Timodc) October 12, 2023

In DC Comics, The Joker is the Clown Prince of Crime. In D.C., the title of Clown Prince of Politics is up for grabs. Donald Trump is the clear frontrunner. But he’s hotly pursued by multiple others in Republican ranks.

And should Trump falter, conservatives behind No Labels have a backup plan for thwarting the will of the people.

Just a reminder that the @NoLabelsOrg plan is to deny
any candidate 270
Electoral College votes and throw the election into the House. So the Republicans who can’t pick a Speaker will select a president.

It’s insane and will give us four more years of Donald Trump.

— Stuart Stevens (@stuartpstevens) October 13, 2023

Opponents of democracy seem to believe that if they throw enough matches at the Constitution it will catch fire eventually.

It’s not as if Senate Democrats don’t have a member under indictment. Sen. Bob Menendez of New Jersey stands accused not only of bribery but of being a foreign agent for Egypt. But Senate Democrats in numbers have called for his immediate resignation. The Hill reports “Sen. John Fetterman (D-Pa.) on Thursday called on the full Senate to vote on a resolution to expel” Menendez.  

With any luck, this one won’t fly

This was not unexpected. When North Carolina Republicans are not creating secret police forces, they are conjuring new ways to make it harder for non-Republicans to vote. They’re creative that way. So when they passed SB 747 and their supremajorities (thanks, Tricia Cotham!) overrode Gov. Roy Cooper’s veto, I expected state Democrats and Marc Elias to jump right on that.

I warned the GOP, I don’t bluff.
Now, we will win.https://t.co/Q2dWScgaMu https://t.co/y4bS5I3INB

— Marc E. Elias (@marceelias) October 11, 2023

Democracy Docket provides the outlines:

On Tuesday, Oct. 10, Voto Latino, the Watauga County Voting Rights Task Force, Down Home North Carolina and two individual voters filed a federal lawsuit challenging part of North Carolina’s newly enacted voter suppression law, Senate Bill 747. 

The new lawsuit ensued just minutes after the Republican-controlled North Carolina Legislature overrode Gov. Roy Cooper’s (D) veto of S.B. 747.

The lawsuit specifically challenges S.B. 747’s new “Undeliverable Mail Provision,” which the plaintiffs contend will arbitrarily disenfranchise North Carolina’s same-day voters, those who register to vote on the same day they cast their ballots during the state’s early voting period. 

The provision at issue requires election officials to send a single address verification notice to same-day voters via the mail. If the U.S. Postal Service (USPS) returns the address verification notice as “undeliverable” before the canvassing of ballots, election officials are prohibited from registering the same-day voter and are required to exclude their ballot from the official vote count. In turn, the plaintiffs argue that “a single piece of undeliverable mail” can result in the disenfranchisement of “fully eligible voters.” 

Under the new law, the voter receives no notice of the cancellation of their ballot and registration and is given no opportunity to contest it. The plaintiffs assert that the provision “undermines North Carolina’s long-standing same-day registration process,” which was utilized by 104,336 voters in the 2022 general election. 

Prior to S.B. 747, a same-day voter who completed and fulfilled all other registration requirements could not be denied the right to vote unless the USPS returned two undeliverable address notices to the applicant. Furthermore, North Carolina law previously guaranteed that if either of the two address notices were returned as undeliverable “after a person has already voted in an election,” then “the county board shall treat the person as a registered voter.” North Carolina voters also previously had an opportunity to “defend their registration and ballots from rejection” at a hearing before the county board of elections. 

This new provision will automatically disenfranchise North Carolinians through no fault of their own. As the complaint explains: “[S]tudies have shown that up to 23% of all undeliverable mail is the result of USPS error rather than a faulty address. Compounding the problem, poll workers often complete registration applications for same-day registrants and may make mistakes in recording the voter’s address.” 

According to the complaint, Black, Latinx, and young North Carolinians are more likely to have mail returned as undeliverable due to housing insecurity, having a college campus address or living in multi-generational households. The complaint also notes that these groups — “who have historically been excluded from voting” — disproportionately utilize same-day voter registration.    

S.B. 747 “represents the General Assembly’s most recent unjustifiable attack on same-day [voter] registration,” the complaint states. The pro-voting groups allege that the Undeliverable Mail Provision violates the Due Process Clause of the 14th Amendment and places an undue burden on the right to vote in violation of the First and 14th Amendments. The lawsuit requests that a federal court declare the provision unconstitutional and prevent its enforcement.

Read the complaint here.

Learn more about the case here.

Learn more about S.B. 747 here.

Instead of legislative street theater, Republicans could be directing their limited creative juices to solving human misery, to improving public schools, to preventing rural hospitals from closing, to preventing gun violence, and more. But what the party devotes itself to with a passion is monkeywrenching elections with whatever tool is at hand: the census, redistricting, and tweaking elections laws and underfunding boards of election. They’ve been hard at it here for a decade.

Today, @TheDemocrats & @NCDemParty filed a lawsuit against SB-747 after the NCGOP’s override of Governor Cooper’s veto. This bill is a wide-ranging voter suppression law that will restrict access to early voting across NC & make it harder to vote. 🧵https://t.co/7t60bV3Brb

— Anderson Clayton☀️ (@abreezeclayton) October 11, 2023

Or maybe they just like losing in court. But give Republicans this: They are relentless.

Biden preps for a rematch with the GOP’s might-be candidate

The New York Times informs readers that Team Biden is already assuming “Scranton Joe” Biden will face a rematch with Don “The Con” Trump. Cue the “Rocky” training music:

The sharpened focus on Mr. Trump isn’t happening only behind the scenes. Facing waves of polls showing soft support for his re-election among Democrats, Mr. Biden and his advisers signaled this week that they were beginning to turn their full attention to his old rival, seeking to re-energize the party’s base and activate donors ahead of what is expected to be a long and grueling sequel.

Team Biden wants to nudge Democrats past their handwringing phase, David Axelrod says, “into a shared sense of mission.” Because “We can’t live like this!” as Adrian told Rocky on the beach.

“Donald Trump and his MAGA Republicans are determined to destroy American democracy,” the president said. “And I will always defend, protect and fight for our democracy. That’s why I’m running.”

Mr. Biden is planning to follow up those off-camera remarks with what he has billed as a “major speech” about democracy. The White House said the speech, in the Phoenix area the day after the next Republican debate, would be about “honoring the legacy of Senator John McCain and the work we must do together to strengthen our democracy.”

Real real America (not the proto-fascist movement backing Trump) gets that democracy is at stake, not anodyne kitchen table issues. Former GOP strategist Rick Wilson gets that democracy and liberty are at stake. “[A]lmost 600 retired Generals, Admirals, Ambassadors, cabinet and service secretaries, appointed leaders, elected officials, and Senior Executive Service leaders” understand that “Donald Trump is an existential threat to democracy.” Voters knew it in 2018, 2020, and 2022. Those are the only polls that matter and will again in 2024.

What’s in question is whether Trump actually will be on the ballot next year. Even his critics are waffling on the 14th Amendment:

A little more than a month ago, a law professor who helped found the Federalist Society, the conservative legal group, enthusiastically endorsed a new law review article arguing that Donald J. Trump was ineligible to be president.

Citing a Wall Street Journal opinion article by Michael B. Mukasey, Steven G. Calabresi has since had a change of heart.

I won’t bother you with Mukasey’s position on the 14th Amendment. Akhil Reed Amar, a law professor at Yale, on his podcast called it “a genuinely stupid argument.”

Adam Liptak of the Times:

Professor Calabresi is, of course, entitled to change his mind. As Justice Felix Frankfurter put it in a 1949 dissent, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

In an interview on Saturday, Professor Calabresi said his revised position was the product of study and reflection.

“I carefully reread the materials on whether Section 3 of the 14th Amendment applies to Trump,” he said, “and concluded that it most likely does not.”

He added that politics had not figured in his thinking. “I will support,” he said, “any Republican or Joe Biden over Trump in the 2024 election.”

Or perhaps Calabresi woke up with a horse head in his bed.

For now, Team Biden is training as if Trump will somehow manage to appear atop the GOP’s ticket in all 50 states. Best not to underestimate that slippery character.

Is Kavanaugh standing back and standing by?

The GOP loves a twofer, or even a threefer. Political maneuvering some might call strategic might less flatteringly be called sneaky or outright dishonest. Diabolical is not out of the running.

Donald Trump withholds final payments to subcontractors, for example, just enough that court costs make it a losing proposition for a subcontractor to take him to court to recover what he owes. Or Trump plays delay, delay, delay when he finds himself in court holding a losing hand.

Gerrymandering cases are another example. GOP legislatures draw district maps patently illegal under the Voting Rights Act (VRA). Democrats and aligned groups take them to court, win, and judges orders new maps. Then GOP legislators draw a second set of unacceptably gerrymandered maps, and the exasperated court appoints a special master to draw them instead. It happened in North Carolina. Or the GOP-led legislature might simply defy the courts until there is no time left before the next election to implement new maps. Something like what happened in Ohio.

Or in the case of Alabama, that maneuver is where dark money meets hidden agenda.

The Alabama Political Reporter (APR) offers a “twofer” explanation for Alabama Republicans’ defying a U.S. Supreme Court ruling in Allen v. Milligan that Alabama draw a second majority Black congressional district. Leonard Leo, the “hidden architect of the Supreme Court,” is allegedly involved:

APR’s reporting shows the extent to which Alabama’s calculation to defy the Supreme Court was made not simply by state legislators in Alabama but has been driven by nationally connected political operatives at the center of the well-documented right-wing effort to reshape the composition and jurisprudence of the Supreme Court and to overturn the remaining key protections established by the 1965 Voting Rights Act. 

[…]

As APR reported on July 27, Alabama lawmakers working in conjunction with state Attorney General Steve Marshall’s office and Washington D.C. lawyers had “intelligence” that Supreme Court Associate Justice Brett Kavanaugh — who voted with the majority in Milligan just weeks ago to order the new maps under the statutory language — is open to rehearing the case as a constitutional challenge to the validity of Section 2 of the Voting Rights Act. 

The Alabama government’s briefs before the three-judge panel in September referenced a concurring opinion by Kavanaugh that questioned whether “race-based redistricting” can “extend indefinitely into the future.” Alabama further relied on arguments — also rejected by the U.S. District Court — that a subsequent U.S. Supreme Court decision this same term ending affirmative action in college admissions (called Students for Fair Admissions v. Harvard ) compels the Court to find that a state’s use of a map in which “race predominates” now violates the 14th Amendment’s guarantee of equal protection. As in Milligan, Kavanaugh filed a concurrence in Students for Fair Admissions, emphasizing the potential for time limits on race-related policies. 

Having gutted Section 5 (pre-clearance) in Shelby (2013), the right is now gunning for Section 2 (ban on discrimination on the basis of race, color or minority status).

APR’s Bill Britt writes, “The tangled web of previously unreported ties centers around Marshall, Alabama Solicitor General Edmond LaCour — dubbed “the architect behind Alabama’s voting rights defiance” — and the D.C.-area law firm Consovoy McCarthy, the firm founded by William Consovoy, a now-deceased former clerk to Justice Clarence Thomas who represented Shelby County in Shelby County v. Holder.” He maps out a web of connections between LaCour and his wife, the D.C. law firm, Leo, “the Catholic far-right,” and Kavanaugh.

Joan McCarter at Daily Kos cautions:

None of this proves that Kavanaugh is involved in the effort to allow Alabama’s racist gerrymander and effectively gut the Voting Rights Act; that’s resting on that supposed “intelligence” that Alabama Political Reporter sources assert. What is clear is that strands of Leo’s web of dark money are at work here, with the goal of eradicating the scraps of the VRA that still exist. There’s no denying that Kavanaugh owes his lifetime appointment on the court to that network.

Alabama joined forces with Leo’s team to file this as an emergency petition, one that’s decided on the shadow docket. They want the Supreme Court to blow up the VRA behind closed doors—again.

MSNBC’s “The ReidOut” interviewed Britt Monday night.

“I cannot say with any certainty that Justice Kavanaugh will join in the scheme but when you look at the bedfellows it is an awfully crowded queen-size bed.” –@BillBritt on the Alabama GOP reportedly trying to force the Supreme Court to strike down Voting Rights Act. #TheReidOut pic.twitter.com/5ZnMUfONT5

— The ReidOut (@thereidout) September 19, 2023

What has long been clear is that “an authoritarian minority,” its political and cultural preeminence threatened by an expanding multicultural, secularizing society, is bent on preventing further slippage in its role as apex dominator. However many thumbs it must apply to the scales of fairness, so be it.

Put up or shut up

Holding firm to one’s convictions and principles is easy when they are not being tested. Thomas Paine spoke of it eloquently in December of 1776:

“THESE are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as FREEDOM should not be highly rated.”

We live in such times again. We’ve simply traded Redcoats for red hats. We watched the latter sack the U.S. Capitol on Jan. 6, ,2021 in service to a man and a movement that rejects the principles for which Paine and the Continental Army fought. When times required them to put up or shut up on the principle of “created equal” spelled out in the document that launched the American Revolution, when the democracy the founders fought to establish failed to reelect their plus-sized, gilded princeling, they cut and ran.

So here we are, faced with whether or not to stand with language in the 14th Amendment that disqualifies any woman or man who “engaged in insurrection or rebellion” against the United States from elected office or, like the red hats, to cut and run.

Challenging Donald Trump’s eligibility, some suggest, “would be ‘naive’ and a ‘fantasy,’” Greg Sargent recounts this morning. “One commentator insisted that Americans should just ‘let it go.’”

Citizens for Responsibility and Ethics in Washington (CREW) and Free Speech For People (FSFP) mean to stand with the Constitution on the matter. Sargent reminds readers that similar constitutional challenges to candidates’ eligibility are neither rare nor naive, but recent ones may have slipped down the memory hole.

“Birthers,” Trump most prominent among them, promoted lawsuits against Barack Obama’s candidacy. They leveraged state mechanisms in place for just such challenges:

In 2016, a voter challenged Sen. Ted Cruz’s candidacy in Pennsylvania, arguing that he was born in Canada, but the state supreme court ruled for Cruz.

In another example, eligible voters in Illinois and New Jersey can try to take action via an administrative agency process to prove a candidate is disqualified, according to CREW’s analysis. That agency’s ruling is subject to appeal in state court, likely heading to the state supreme court — and, possibly, the U.S. Supreme Court.

CREW and FSFP will file challenges to Trump this fall. In which states? Wait and see.

Here’s the rub: This only has to work in one state to advance to the Supreme Court. And that’s not wildly implausible.

Yes, many state supreme courts will uphold Trump’s eligibility. [Justin] Levitt, the Loyola Marymount expert, expects them to rule broadly that states don’t have the power to determine Trump’s qualification status under the 14th Amendment in the first place.

This is where things get complicated. State courts often make determinations on whether candidates are qualified (as with Cruz). But Levitt draws a distinction between straightforwardly factual requirements (the candidate must be a natural born U.S. citizen) and ones that demand interpretation (the candidate must not have committed insurrection as defined by the 14th Amendment).

State courts will likely rule that the latter “is not the sort of qualification that a state is free to make a determination on,” Levitt told me, because it’s more of a “political judgment” as opposed to a determination of “fact like age or citizenship.”

“The sky won’t fall if states follow their procedures and make a determination,” Indiana University law professor Gerard Magliocca told Sargent. “This has become serious enough that it must be addressed.”

The world was witness to the faithlessness of the Trump mob. Less visible are the daily actions in GOP-controlled legislatures to render elections pro forma, theater meant to keep nuevo royalists comfortably ensconced in power and as distant from the will of the people as the Atlantic Ocean kept George III.

Jesus was particularly harsh on the hypocrites of his day. In our day, hypocrisy is recorded digitally (and inconveniently), as MSNBC’s Mehdi Hasan put on display recently. For Hasan’s targets, as our proprietress says, shamelessness is their superpower.

Fox once warned of a "constitutional crisis" if Hillary Clinton was elected president while under criminal investigation. But now that Donald Trump is running in 2024 amid multiple indictments and trials, they're singing quite a different tune.

Roll the tape! pic.twitter.com/0xnhkS1no5

— The Mehdi Hasan Show (@MehdiHasanShow) September 4, 2023

If it’s to be a showdown with them, then as Jake (Kevin Costner) says in Silverado, “Come on, boys! Let’s start the ball!” Put up or shut up. Let’s have this out.

Michael Luttig makes the case that the question of whether the 14th Amendment precludes Trump from running again will be decided shortly by the Supreme Court:

I don’t doubt the Supreme Court will decide this. I do doubt that they will uphold the idea that Trump is disqualified from running. It would be the most shocking decision ever. And I don’t think anyone can even guess what it might mean politically. I have my doubts that it would end well but who knows?