Tag Archives: voter suppression/fraud

Answering 7 Questions about the Georgia Election Law


The new law really is bad, but not every bad thing said about it is true.

A lot of hot air about this law is being blown in both directions. There are good reasons to oppose it, and I believe Georgia Republicans had bad motives for passing it. But it’s easy (and counterproductive, I think) to overstate the case against it.

So let’s back up and start at the beginning.

After 2020, are there good reasons to pass new election laws?

Actually, yes, but not the reasons that Republicans are giving.

Around the country, states adjusted to the pandemic by improvising new practices for the 2020 elections. State after state made it easier to vote by mail, vote early, vote at the curb of a polling place, or get a ballot by mail and cast it in a drop box. Some states made those changes by an act of the legislature, some by court order, and some by executive decision at either the state or local level.

Wherever the decision was made, it was extensively litigated before the election, which is the appropriate time to do it. [1] Across the board, the two parties followed the conventional wisdom that Democrats do better when more people vote. [2]

So in jurisdictions controlled by Democrats, officials aggressively responded to the pandemic by making voting easier, and were challenged in court by Republicans (who claimed the Democrats exceeded their authority or promoted fraud). In jurisdictions controlled by Republicans, voting rules were changed reluctantly or not at all, and were challenged in court by Democrats (who argued that making people stand in line during a pandemic infringed on their right to vote). I think it’s fair to say that even before Election Day, the 2020 elections were already the most litigated elections in American history, with the possible exception of Bush v Gore in 2000.

But whoever made the pandemic election rules, they were largely made on the fly and under time pressure. So it would be entirely reasonable for a legislature to review their pandemic election procedures now, when they can do the research, look at lessons learned, and hold the extensive debate there wasn’t time for in 2020.

Of course, that’s not at all what happened in Georgia or is happening in other Republican-controlled legislatures around the country.

Republicans in Georgia sped a sweeping elections bill into law Thursday, making it the first presidential battleground to impose new voting restrictions following President Joe Biden’s victory in the state. The bill passed both chambers of the legislature in the span of a few hours before Republican Gov. Brian Kemp signed it Thursday evening.

What happened in 2020?

When you sweep away the partisan noise about the 2020 elections, two facts stand out:

  • The easier voting procedures led to a record turnout.
  • The election results have stood up to scrutiny wherever they’ve been challenged.

The turnout is indisputable. Nationwide, around 158 million votes were cast in the presidential election, compared to 137 million in 2016 and 129 million in 2012. In Georgia, 5 million people voted for president in 2020, 4.1 millon in 2016, and 3.9 million in 2012.

In part that increase is due to population growth, and some may be evidence of highly motivated voters on both sides. But to a large extent this is an if-you-build-it-they-will-come effect: When voting gets easier, more people vote.

One thing we can be very sure of (in spite of Trump’s claims otherwise) is that the votes were counted accurately, particularly in Georgia. Because the race was so close, Georgia’s voting-machine results were re-tallied, followed by a hand recount of paper ballots. There were minor differences in the three counts (as there always are), but nothing approaching the scale of Biden’s 11K-vote victory.

A second Trump claim was that substantial numbers of mail-in ballots were fraudulent. Again, the evidence says otherwise. The Republican secretary of state conducted a review of signatures on mail-in ballots in one large county, finding that the Cobb County Elections Department had “a 99.99% accuracy rate in performing correct signature verification procedures.”

One Georgia election official — also a Republican — characterized Trump’s subsequent fraud claims as “whack-a-mole“. As soon as one was disproved, another would pop up. What Trump really had was a desired conclusion — that he really won — and his people kept manufacturing baseless arguments to reach that conclusion.

What lessons should legislators learn from the 2020 results?

If you believe in democracy, the two outcomes above — high turnout, accurate results — are entirely good. So the obvious and simple lesson of 2020 is that many of the irregular procedures motivated by the pandemic ought to be regularized.

In particular, mail-in ballots work. This should not surprise anyone, since vote-by-mail was already the default system in five states (Washington, Oregon, Hawaii, Colorado, and Utah) plus the District of Columbia. Fraud has not been a major issue in any of these states. There is still no credible evidence that it was a problem in any state that expanded vote-by-mail in 2020. [3]

It would be entirely legitimate, though, for legislatures (in those extensive hearings that Georgia did not hold) to examine their systems to eliminate fraud possibilities that were not exploited in 2020. Republicans undoubtedly would do this in bad faith, but a good-faith effort would be possible.

What lessons did Republicans learn?

The lesson Republicans appear to have learned from 2020 is “We lost because too many people voted.”

The most disturbing post-election change is that many in the GOP are now openly speaking out against democracy. In Arizona, for example, a state legislator said “Everybody shouldn’t be voting. … Quantity is important, but we have to look at the quality of votes, as well.” And Utah Senator Mike Lee tweeted: “We want the human condition to flourish. Rank democracy can thwart that.”

Some conservative intellectuals are making arguments that are simply fascist: America has been contaminated by citizens who are not “true” Americans. They should not be allowed to elect the officials that govern the country.

Most people living in the United States today — certainly more than half — are not Americans in any meaningful sense of the term. They do not believe in, live by, or even like the principles, traditions, and ideals that until recently defined America as a nation and as a people. It is not obvious what we should call these citizen-aliens, these non-American Americans; but they are something else. …

The US Constitution no longer works. What is actually required now is a recovery, or even a refounding, of America as it was long and originally understood but which now exists only in the hearts and minds of a minority of citizens. … Overturning the existing post-American order, and re-establishing America’s ancient principles in practice, is a sort of counter-revolution, and the only road forward.

In other words, rule by the minority that remains true to “America’s ancient principles” is justified and good. That fascist viewpoint may not represent the majority of Republicans (yet). But more and more it is tolerated, and even pandered to, as a legitimate voice in the intra-party debate.

What does the Georgia law do?

Good summaries have been published by The Washington Post and The New York Times. Oversimplifying slightly the law (1) changes the rules, and (2) changes who implements the rules. The significance of (1) has been overblown somewhat, but (2) hasn’t gotten as much attention as it deserves.

The rule-changes almost all go in the wrong direction (making voting harder and less likely), but mostly are not out of line with what goes on in other states. For example: Absentee ballots will be harder to get, but the new standards are not draconian in themselves. Rather than being able to request an absentee ballot six months in advance of the election, you now have to do it within 78 days. Absentee ballots will be harder to fill out and probably more mistakes will be made that allow the ballots to be tossed. For example, you can’t just sign the ballot any more, you also have to copy your driver’s license number (or some other number from a list of acceptable IDs) onto the ballot. (Georgia already had a voter-ID law for in-person voting.) If you’ve ever tried to copy a long meaningless number, you can imagine that a lot of people — especially old, sick, or poorly educated people — will screw that up. So their votes won’t count.

Small counties (which mostly vote Republican) will get more ballot drop-boxes, but large counties (mostly Democratic) will get fewer. The boxes have to be taken indoors in off-hours, an inconvenience that hits people who work during the day and can’t easily take unsupervised breaks. Small counties will extend their early-voting periods, but large counties were already at the maximum. Even granting that, though, there are many parts of the country that have even less early voting and/or ballot drop-boxes.

The change that gives the game away, though, is that distributing food or water to people waiting in line to vote is now considered electioneering at a polling place and is a misdemeanor. [4] So while many of the other changes will result in more people voting on Election Day, with correspondingly longer lines in areas with large populations (i.e. Democratic Atlanta), this change will make waiting in line an endurance test.

None of that is as blatant as the cartoon below, but all of it raises the question: Why? Did something bad happen in 2020 that makes all this necessary? The only real answer to that is: Too many people voted and Republicans lost. That’s the problem this law is trying to solve.


What about the implementation changes?

To me, this is the part that is most sinister. Again and again in 2020, Trump pressured Republican officials to overturn the election results. (The best known case is the Raffensperger phone call, when he pushed the Georgia secretary of state to “find” enough votes for him to win, and threatened him with prosecution if he didn’t. But Trump also pressured the US attorney in Georgia, a Georgia elections investigator, state legislators in Michigan, and probably many others we don’t know about.)

What Ted Cruz et al were hoping to accomplish on January 6 was to make an opening for Republican legislatures in Pennsylvania, Arizona, Georgia, and Michigan to overrule the voters and install their own slate of pro-Trump electors. Fortunately, most Republicans in Congress did not go along with this anti-democracy scheme.

Trump failed in his attempt to hang onto power in spite of the voters, largely because Republican officials refused to commit crimes or exceed their authority to reverse the election that he lost so decisively. But many of those officials have subsequently been punished. The Michigan election-board member who noted that his board had no authority to throw out the county-level certifications — he was not renominated. Raffensperger is going to be primaried by a Trumpist, and is expected to lose.

Similarly, most of the Republicans who voted to uphold democracy by impeaching Trump for inciting a riot against Congress — they’ve been censured by their local Republican parties.

The message from the Trump base is clear: Republican officials should not have integrity. They should be partisans first, and cheat if necessary to make sure elections come out “right”. (This makes perfect sense if you believe that “Most people living in the United States today — certainly more than half — are not Americans in any meaningful sense of the term.”)

This context makes the implementation changes in the Georgia bill ominous. The Secretary of State (i.e., Raffensperger) is removed from the State Election Board, which is now more completely under the control of the legislature. And the State Election Board is given power to remove and replace county election officials. It’s easy to see the target here: Fulton County, where Atlanta is.

So the next time a Trump wants to throw out a bunch of ballots in inner-city Atlanta, the state mechanisms are in place to make that happen.

What is being done to protest this law?

One purpose of rushing the law through so quickly was to prevent an effective response, which takes time to organize. (Think about it: If there were good reasons for this law and it enjoyed wide support, Republicans should have played it for all it was worth: Hold extensive public hearings about all the election fraud it would prevent. Explain in detail the destructive effects of handing out bottles of water to people waiting in hours-long lines. Lay out the case for why Atlanta shouldn’t be allowed to manage its own elections. And so on.)

As a result, big Georgia corporations like Coke and Delta didn’t oppose the law until after it passed, and they faced the threat of boycotts. (Home Depot and Aflac still haven’t commented.) The owner of the Atlanta Falcons football franchise did not mention the law specifically, but issued a statement saying “The right to vote is simply sacred. We should be working to make voting easier, not harder for every eligible citizen.” Major League Baseball pulled the All Star Game, which had been scheduled to happen in suburban Atlanta on July 13. (In addition to its fans, MLB also needs to consider its players, particularly the big-name players whose voluntary participation makes the All Star Game worth watching.) It’s not clear how far this movement will spread.

Republicans have been striking back. Ted Cruz and Mike Lee are calling for Congress to end MLB’s exemption from antitrust laws, which has been in place since 1922. The Georgia House voted to revoke a tax break for Delta. [5]

RNC Chair Ronna McDaniel tweeted:

Guess what I am doing today? Not watching baseball!!!!

And the WaPo conservative columnist Hugh Hewitt proclaimed MLB “an arm of the Democratic Party … with values opposed to the Constitution and representative government.”

It’s the conservative version of cancel culture.

One thing Republicans are adamant about is that this is not racist, so all the comparisons to Jim Crow are over the top. But some of the comments they make clearly are racist, like this tweet from Mike Huckabee.

I’ve decided to “identify” as Chinese. Coke will like me, Delta will agree with my “values” and I’ll probably get shoes from Nike & tickets to @MLB games. Ain’t America great?

Democratic Congressman Ted Lieu from California decided not to take that lying down. (He usually doesn’t. If you’re not following him on Twitter, you should.)

Hey Mike Huckabee, I asked around and Coke likes me, Delta agrees with my values, I wear Nikes and my hometown Dodgers won the World Series. But it’s not because of my ethnicity. It’s because I’m not a sh*thead like you who is adding fuel to anti-Asian hate.

[1] That’s one reason why many of Trump’s post-election lawsuits were thrown out without hearing evidence: Although Trump’s lawyers were claiming fraud in the press, when they went to court they often didn’t mention fraud, but focused on voting or vote-counting procedures that should have been — and often had been — litigated before the election. American courts look skeptically at parties that participate in an election, lose, and only then complain about the rules.

Before an election, courts can remedy a situation by ordering that bad rules be changed. Afterwards, the only possible remedy is to throw out ballots that legitimate voters cast in good faith. Judges are understandably reluctant to do this.

[2] It’s not completely obvious this is in fact true, and if it is, nobody knows exactly how big that high-turnout advantage is for Democrats. But it’s fair to say that both parties have acted as if they believe high turnout favors Democrats.

A lawyer for the Arizona Republican Party admitted as much to the Supreme Court. One issue in that case concerned voters who go to a polling place in the wrong precinct. Democrats want to handle this situation by counting their votes, but only for the offices they would have been entitled to vote on had they gone to the correct precinct. Republicans want to throw their ballots out. Remember: these are legal voters casting ballots in elections they are legally entitled to vote on, but getting confused and doing it in the wrong place — and so possibly giving officials an excuse not to count their votes.

“What’s the interest of the Arizona RNC in keeping, say, the out-of-precinct ballot disqualification rules on the books?” Justice Amy Coney Barrett asked, referencing legal standing.

“Because it puts us at a competitive disadvantage relative to Democrats,” said Michael Carvin, the lawyer defending the state’s restrictions. “Politics is a zero-sum game. And every extra vote they get through unlawful interpretation of Section 2 hurts us”

In theory, the extra votes the Democrats’ interpretation would allow might benefit Republicans, but the ARNC lawyer seemed to discount that possibility.

[3] Again and again, the apparently credible evidence you may have heard about in November or December collapsed under scrutiny.

[4] The only time I’ve ever seen snacks used as electioneering was in 2004, when I was given a Clark bar at a Wesley Clark rally. Doing something like that a polling place (which I don’t think Clark did) should be illegal.

[5] I’m struck by the lack of any justifying connection. Both seem to be pure power moves: We don’t like what you did, so we’re going to hurt you.

There is no legitimate tit-for-tat here. Like individuals, private-sector businesses have every right to comment on the actions of government and take whatever actions they deem appropriate. There is no comparable right in the other direction. Individual government officials are free to express their opinions, but governments are obligated to pursue the public good. Delta’s political views are not relevant to whether or not a tax break on jet fuel is in the public interest. For contrast, I don’t believe that Hobby Lobby suffered any official reprisals for challenging ObamaCare.

The Election: Worry or Don’t Worry?

Biden’s lead in the polls has Democrats searching for what could possibly go wrong. But some worries should be taken less seriously than others.

Just about every Democrat I know wants to punish him/herself for being overconfident in 2016. Some of us have practical regrets, and wish we’d done more to put Hillary over the top, while others less rationally feel like we jinxed her by saying too loudly that she was going to win. But whatever we did or didn’t do then, we’re now determined to make ourselves suffer by refusing to accept any good news about Joe Biden’s chances. No matter what the polls say, something is going to go horribly wrong.

For what it’s worth, I think we’re going to win this. Not that there’s nothing to worry about, but some of our worries are less serious than others. Let’s assess them one by one.

Worry #1. The polls are wrong.

Biden’s average margin in national polls is somewhere in the 8-9% range, and has been there since mid-June. More importantly, he has solid leads in the swing states he needs to win: Pennsylvania, Michigan, and Wisconsin. If he fails in one of those states, polls also give him a good shot at flipping Florida, Arizona, or North Carolina. And even Republican strongholds like Texas and Georgia are not completely out of reach.

But Democrats remember how confident we felt in 2016, and look for reasons to doubt the polls. Republicans, on the other hand, live in constant denial of reality, and doubt the polls because they don’t want them to be true. Poll-skeptics make two related arguments.

  • The polls were wrong in 2016, so why should we trust them now?
  • There is a “hidden” Trump voter that the polls either can’t count or don’t want to count.

Neither really holds water, as long as you remember that polls are snapshots of public opinion at a moment in time, and not predictions of what people will think or do months from now.

The first thing to understand is that the final polls in 2016 were not far off from the vote totals, and to the extent they were, the more likely explanation is that Comey’s reopening of the Clinton email investigation gave Trump late momentum. The polls probably weren’t wrong at the moment they were taken; but a small shift in public opinion at the last minute put Trump over the top.

Nationally, the final 2016 RCP polling average had Clinton up by 3.3%. Her actual margin in the national popular vote was 2.1%. In Pennsylvania and Michigan the polls were off by a bit more — but still not that much. And in both cases, Trump had been gaining in the final week. The only real surprise was Wisconsin, where Clinton led by 6.5% in the final polls and lost by 0.7%.

But in 2018, the reverse happened: The final general congressional ballot polls had the Democrats up by 7.3%, and their margin in the vote totals was larger: 8.4%.

So if there were “hidden Trump voters” in 2016, were their “hidden Democrats” in 2018? Or is there always a small shift in the final days and hours of a campaign?

For what my opinion is worth, I expect the 2020 last-minute shift to be in Biden’s favor. Late in a campaign, a certain number of voters are just sick of all the noise. This year in particular, those voters will be sick of four years of noise; the thought that the loud, obnoxious Trump Era could be over will just be irresistible.

Assessment: Don’t worry about this. Things could change before Election Day, but Biden really is ahead right now.

Worry #2. Trump will stage a remarkable comeback.

In the Trump Era, when every day brings a a few week’s worth of news, three months is a very long time. A month ago, who was predicting that Portland would be invaded by DHS secret police? So all kinds of things can happen before Election Day, and you can expect Trump to push all the buttons and turn all the knobs as he tries to change the public’s opinion of him.

However, nothing he’s trying right now is working at all, or is likely to work if he just keeps at it and pushes harder. Unleashing his goons on Portland was supposed to produce a wave of support for the “law-and-order President” (who is strangely indifferent when people in his administration break the law). But in the latest Ipsos poll, 52% of Americans say the federal response to protests made things worse, with only 30% saying it made them better.

The not-all-that-veiled racism of his “Suburban Lifestyle Dream” tweet doesn’t seem to be going over all that well either. Suburbs aren’t what they were in the 1950s. Black people already live there (though still not in proportionate numbers), so they aren’t as easy to demonize. And a suburb anywhere near high-tech industries (like Bedford, Massachusetts, where I live) is going to include lots of residents of East Asian or South Asian ancestry. If you’re looking for the lily-white experience, you have to go to ex-urbs or rural small towns.

A second factor: His ability to change tactics is limited by his inability to admit mistakes or take responsibility for bad outcomes. So he has to keep doubling down on points that the public already knows are false. Like: the virus really is spreading, it’s not just that we’re testing more. That stopped fooling anyone other than Trump diehards weeks ago, but he can’t stop saying it.

And it’s not just him. The Trumpists who picture a comeback have to engage in such flights of fancy that reading their scenarios makes me more confident, not less. For example, Grady Means published an op-ed Wednesday in The Hill: “Buy the Dip: Bet on Trump“. In Means’ fantasy world, Trump has done a great job and had a great strategy going into this year, but after Covid-19 got rolling “the president has been a complete failure at playing his winning hand.”

The mainstream media and social networks stepped up their withering and relentless Trump-attacks. Statistically meaningless (increased testing and obvious selection bias) COVID-19 “cases” data were weaponized into a strategy of continued lockdowns and sustained school closures.

That’s Trump’s problem — not that America on his watch has objectively screwed up its pandemic response worse than any other rich country, or that people are genuinely hurting economically with no relief in sight. No, it’s that the media has made something out of nothing, and convinced the public to shut down businesses and schools when the virus isn’t really out of control at all. As soon as Americans realize the virus is already beaten, learn to ignore the hundreds of thousands of bodies piling up in the corner, and recognize what a great job Trump has done on the pandemic and everything else, he’ll surge again.

I just can’t picture that plan succeeding.

If Trump is going to stage a comeback, it’s going to have to be through an October surprise: either foreign help (like he got from Russia in 2016 and tried to extort from Ukraine this time around) or some headline-making indictments from the Barr/Durham investigation of the investigators. In either case, whatever anti-Biden “scandal” Trump manages to puff up will probably have little substance, and the public will have been well warned.

Assessment: Worry a little. In particular, worry enough to keep doing whatever you can to ensure a Biden victory. (If we overshoot and wind up with a landslide, that might teach Republicans to give up not just on Trump, but on Trumpist fascism in general — no Tucker Carlson or Tom Cotton in 2024.) But if anxiety about a Trump comeback is causing you to lose sleep or plunge into depression, feel free to put it out of your mind.

3. Trump might lose the election, but refuse to leave office.

It’s important to keep two things in mind:

  • The power of the president functions almost entirely through other people.
  • The White House is a symbolic place, but has no legal or institutional significance.

So while it’s very easy to imagine Trump barricading himself in the Oval Office on January 20 and tweeting endlessly about voter fraud and how he’s still president, if the people who make up the government stop taking his orders, he’s not president any more. Removing him from the White House would become a problem for the Secret Service, aided by mental health professionals.

The transition-of-power process defined by the Constitution and implemented in various state and federal laws goes like this:

  • On November 3, an election is held — or rather 51 separate elections are held in the states and the District of Columbia. This date could be changed, but only by Congress. The Constitution says: “The Congress may determine the Time of chusing the Electors”. Votes are counted by local officials, until at some point a state official verifies the names of the electors who will represent that state in the Electoral College.
  • On December 14 (the first Monday after the second Wednesday in December), the electors cast their votes. Like Election Day, this date was set by Congress and can only be changed by Congress. (The same sentence in the Constitution continues: “The Congress may determine … the Day on which [the Electors] shall give their Votes; which Day shall be the same throughout the United States.”) The electors meet in their own states, vote, and send the vote totals to Congress.
  • On January 6, a joint session of Congress meets and the electoral votes are officially counted. (This is the new Congress, with the new representatives and senators elected in November. The new terms start on January 3.) Whatever disputes there might be — rival slates of electors and so on — Congress has the authority to resolve them. The new president will be who the new Congress says it is.
  • On January 20, the new president is inaugurated, swearing an oath specified in the Constitution. There are lots of traditions around the inauguration — it happens just outside the Capitol, the Chief Justice administers the oath, the oath is sworn on a Bible or whatever book the new president holds sacred — but none of that is required.

Here’s something I have great faith in: If the joint session of Congress on January 6 recognizes that Joe Biden has received the majority of electoral votes, he will become president at noon on January 20 and the government will obey his orders. Where Donald Trump is at the time, and whatever he is claiming or tweeting, will be of no consequence.

If Trump’s tweets bring a bunch of right-wing militiamen into the streets with their AR-15s, they can cause a lot of bloodshed, but they can’t keep Trump in office. They are no match for the Army, whose Commander-in-Chief will be Joe Biden.

So if Trump wants to stay on as president, he has to screw the process up sooner; by January 6, it’s all in the bag, and probably it’s all in the bag by December 14. Even stretching out the process with legal proceedings won’t help him: The Constitution specifies that his term ends on January 20. If at that time there is no new president or vice president to take over, the job devolves to the Speaker of the House, who I believe will be Nancy Pelosi.

Assessment: Worry about the ways that Trump might screw with the electoral process (which we’ll get to), but not that he will just refuse to leave the White House.

4. Republican state legislators will overrule the voters and give their state’s electoral votes to Trump.

Awarding a state’s electoral votes to the candidate who wins that state’s popular vote is so traditional that most people think it must be in the Constitution, but it isn’t. The sum total of the Constitution‘s instructions are:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress

So, at least in theory, a legislature could ignore the popular vote and appoint anybody it wants to the Electoral College. However, states have codified their current processes in law, and a new law would have to be passed to circumvent that process. The swing states people are most worried about — Michigan, Pennsylvania, and Wisconsin — have been gerrymandered to lock in Republican majorities in the legislatures, but they have Democratic governors who would veto a law to hand Trump the state’s electoral votes. Republicans don’t have enough votes to override a veto.

Assuming Trump wins at least one of those states legitimately, though — or manages to suppress enough Democratic votes to get a majority — Biden could still win if he carries Florida, Arizona, or North Carolina. North Carolina, like Michigan, Pennsylvania, and Wisconsin, has a Democratic governor and enough Democrats in the legislature to sustain a veto. So Trump needs to win the popular vote there, too.

That leaves Florida and Arizona, where Republicans have unified control of state government. (You could also talk about Texas and Georgia, but if Biden wins the popular vote in either of those states, he’ll have such a landslide that no amount of backroom finagling could undo it.) Would they dare reverse the decision of their state’s voters? This would be a truly outrageous thing to do — even some people who vote for Trump aren’t going to like the idea that their votes don’t count — and the people who do it would risk being villainized for life. So I can only imagine it happening under two conditions:

  • They’re sure it will work. This scheme only makes sense if it gives Trump a second term, where he can reward the people who put him in office. So they need to be sure their law will pass and their electoral votes will make Trump president again.
  • Something taints the vote-count that says Biden won. You could imagine a legislature legitimately awarding its electoral votes by special law, if it were clear that the popular vote was fraudulent in some way. (Imagine a surprise win by the previously unknown owner of the company that makes vote-counting machines. Wouldn’t you want your legislature to stop that?) Republicans would need to be able to argue that they were following the real will of the voters, which had been undone by fraud.

That, I think, is the point of Trump’s bogus assertions that voting-by-mail-is-unsafe and the polls are skewed. He’s setting up the argument Republican legislators will need if they want to throw the election his way.

There are a bunch of scenarios where Biden is safe from this:

  • He wins the popular vote in enough states that no single state flipping to Trump would reverse the outcome.
  • He wins three of these four states: Michigan, Wisconsin, Pennsylvania, and North Carolina.
  • He wins Florida and/or Arizona by enough votes that the fraud-made-the-difference argument loses credibility.

There’s also a wild card: If Democrats control both houses of the new Congress, they might decide to not to count the switched electoral votes. It would be an illegitimate, unconstitutional move, but hardball begets hardball. Trump might try to get the Supreme Court to rule against Congress, but it’s not clear they have jurisdiction. And if Congress simply refuses to declare a winner, Pelosi becomes president. (All this would do horrible damage to our political system, but if Republicans don’t care about that, why should Democrats?)

Assessment: Worry moderately. Probably we won’t wind up in a scenario where this is a possibility, and even if we did, it would only take a handful of Republicans with consciences to save democracy. Who knows? There might actually be enough of them.

4. A majority of Americans try to vote Trump out, but between voter suppression and the Electoral College, we fail.

During the impeachment process, Republicans liked to orate on the awesome standards necessary to reverse the choice of the American voters. But of course, the voters did not choose Trump — the Electoral College did. Trump got only 46% of the vote: 66 million votes to Hillary Clinton’s 69 million. His approval has never gone much above that 46% — largely because he has governed as if the other 54% doesn’t count — and is now hovering somewhere around 41%. Quite possibly, there has never been a moment when a majority of the American people supported Trump.

It’s easy to imagine the same thing happening again: Biden piling up millions more votes than Trump in California and New York, while losing by a few thousand in Florida and Wisconsin. With the usual Republican margin in Texas shrinking, the effect could be even more extreme in 2020 than it was in 2016: Biden might get as many as 5 million more votes than Trump, and still not become president.

What’s more, Republican voter suppression efforts are in high gear, and have already shown some success: By a wide margin, the voters of Florida voted in 2018 to re-enfranchise felons who have served their time — nearly 1.4 million Floridians. But yielding to the will of the people is not what the Republican Party is about.

The GOP-controlled Legislature, however, sought to limit the effects of the amendment by passing a law that conditioned the right to vote on payment of all fees, fines and restitution that were part of the sentence in each felon’s case. The state, however, had no central listing of this information, and the Legislature created no system to help felons ascertain how much, if anything, they owed. Even the state ultimately agreed that it would take six years to create such a system. … The estimated 85,000 who are already registered could be prosecuted if they vote and it turns out they have not paid the fees or fines owed.

The Supreme Court, which has consistently favored Republican voter-suppression efforts sincre John Roberts’ evisceration of the Voting Rights Act in 2013, thought this was a fine law.

Covid-19 has created new opportunities for mischief, as we saw in Wisconsin in April. The Republican-through-gerrymandering legislature insisted on few polling places and long lines, and resisted the Democratic governor’s attempt to institute vote-by-mail, or even to extend the deadline for submitting an absentee ballot to allow for the fact that many ballots were not mailed out on time. Research indicates that the brave Wisconsinites who came out to vote anyway could not fully avoid spreading the virus.

Nationally, Republicans are doubling down on this yield-or-die strategy for the fall. They are fighting vote-by-mail in states all over the country, trying to force people to brave the virus-spreading crowds if they want to vote. Worse, Trump is intentionally slowing down the mail, which could well result in a Wisconsin-like situation for the whole country: People can’t receive their mail-in ballots and return them soon enough to count. Some of the more obvious suppression tactics include not counting Michigan ballots that arrive late, even if they were postmarked before Election Day (“inherent variations in mail delivery schedules could result in one person having the ballot counted and another not, even if they send them back on the same day”), and trying to stop Pennsylvania from providing drop-off boxes for people who are afraid their mail-in ballots won’t arrive in time. These attempts come wrapped in rhetoric about “election security”, but they’re transparent attempts to keep legal voters from successfully submitting their votes.

I think there’s reason to hope that these efforts will boomerang, and that the more Trump tries to keep Americans from voting, the more determined we will be. In Wisconsin, the people who did risk their lives to vote were pretty pissed off by the time they got to the booth. The Republican Supreme Court candidate this tactic was supposed to save got defeated anyway.

All over the country, people have to be asking themselves: “Why don’t Republicans want me to vote?” Trump is giving Democrats an issue, and we need to run with it. He wants to paint liberals as people who hate America, but this part of Barack Obama’s eulogy for John Lewis sounds pretty fundamental to what America is supposed to mean:

Once we pass the John Lewis Voting Rights Act, we should keep marching to make it even better by making sure every American is automatically registered to vote, including former inmates who’ve earned their second chance. By adding polling places and expanding early voting and making Election Day a national holiday, so if you are somebody who’s working in a factory or you’re a single mom, who’s got to go to her job and doesn’t get time off, you can still cast your ballot. By guaranteeing that every American citizen has equal representation in our government, including the American citizens who live in Washington, D.C., and in Puerto Rico. They’re Americans. By ending some of the partisan gerrymandering, so that all voters have the power to choose their politicians, not the other way around. And if all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that’s what we should do.

Who hates America now, Mr. Trump? Not LeBron James, who together with other NBA stars is donating $100K to pay the fees of Florida felons, so that they can vote. We all need to be looking for ways that we can help our fellow Americans vote, and for ways to call out the anti-American politicians who are trying to stop them.

The ultimate voter suppression would be for Trump to deploy his storm troopers Portland-style in swing-state Democratic strongholds like Philadelphia and Milwaukee, harassing people in front of polling places. We can hope that mayors and governors will not stand for that, and that the police will obey their local orders rather than side with the feds. It could get ugly, and again, could boomerang against Trump. Hopefully his advisors will convince him that it will.

Assessment: Trump can put his thumb on the scale, but only up to a point. It shouldn’t have to be this hard to get rid of him, but it is. I think we’re up to the challenge. So worry enough to take action, but not so much that you paralyze yourself.

5. Trump will lose and leave office, but he’ll trash the country on his way out the door.

Of course he will. This isn’t even something to worry about, just start getting ready for it. It’s going to happen.

Look for a flurry of pardons for all his henchmen (and probably himself, leading to an interesting legal battle), abrupt closures of American bases in any country that hasn’t treated him as well as he thinks he deserves, and at least one more big favor to pay off his debt to Vladimir Putin. (Putin would be crazy not to invade Estonia or something as soon as Trump loses.) And what’s more important: Taiwan’s independence, or a new Trump Tower in Shanghai?

Biden is going to have a historic mess to clean up when he takes office. But I believe he will take office.

The Republican Shenanigans in Wisconsin

How much are Republicans willing to disrupt democracy to maintain their power? We’re starting to find out.

This week, partisan majorities in the Wisconsin legislature, Wisconsin Supreme Court, and US Supreme Court combined their power to rig Tuesday’s election, with the goal of safeguarding the Republican majority on the Wisconsin Supreme Court against possible interference by the voters. The cost of this exercise of raw power was both the disenfranchisement of large numbers of Wisconsin citizens and an increase in the spread of Covid-19 in the state. As a result, both votes and lives will be lost.

Wisconsin’s pre-existing condition: an ailing democracy. Before we get into the details of how Tuesday played out, it’s worth noting that Wisconsin’s claim to have a democratic form of government was already shaky. Elections are still held, but the state has been gerrymandered to the point that large Republican majorities in both houses of the legislature are just about impervious to the will of the People. Republicans have power because they have power, not because the voters of Wisconsin want them.

2018 election results in Wisconsin.

The election of 2018 proved that point: Democrats won all the statewide offices, including the governorship. Together, Democratic candidates for the lower house of the legislature — where all the seats were up for election — got 200,000 more votes than Republicans. And yet Republicans won not just a majority of the seats, but close to a supermajority: 63 out of 99.

That advantage comes on top of the unfair advantage Republicans get from voter suppression. They lost among the people who managed to vote by 200K. If voting were easier, they probably would have lost by much more.

How do they get away with that? Well, one reason is that the Wisconsin Supreme Court doesn’t protect the right of Wisconsin voters to control their government, at least not when that government is Republican.

But Supreme Court justices are elected in Wisconsin, so if Wisconsinites want their democracy back, they can vote out the Republican judges who stand in their way. At least in theory. That theory was being tested Tuesday.

What the election was going to be about. Outside of Wisconsin, Tuesday’s election mainly had been getting attention as a presidential primary. Joe Biden held a substantial delegate lead, but Bernie Sanders was still running, and Sanders had beaten Hillary Clinton soundly in Wisconsin in 2016. The recent polls weren’t looking good for Sanders this time, but if he could pull off a result similar to his 2016 victory, things might yet get interesting.

Inside the state, though, the election was about judgeships, particularly a seat on the state’s highest court. Politico explains:

The high court has played a pivotal role in upholding major pieces of GOP legislation including Act 10 in 2011, which limited public employee collective bargaining rights. The court, which now has a 5-to-2 conservative majority, also shut down a long-running investigation into the campaign of former Governor Scott Walker for campaign finance violations, and upheld the GOP Legislature’s move to limit the powers of incoming Democratic Governor Tony Evers after his defeat of Walker. The court will also play a decisive role in the upcoming fight over redistricting as well as a host of hot-button social issues such as abortion and religious liberty.

Also at stake: “three seats on the Wisconsin Court of Appeals, over 100 other judgeships, over 500 school board seats, and several thousand other positions”.

The judicial elections happening simultaneously with the primary seemed like a misfortune to Republicans, though, because (since Trump is running unopposed) more Democrats seemed likely to turn out than Republicans. If only there were some way to keep turnout down across the board …

The coronavirus election. Then coronavirus happened. Showing up to vote is a risky thing during an epidemic, especially if you have to wait in long lines with other people, some of whom are bound to be carrying the virus. Other states have recognized this problem and so a series of primaries have been postponed. In all 16 states have delayed their primaries.

Democratic Governor Tony Evers thought Wisconsin should do the same. He already had issued a stay-at-home order on March 24, and reasoned that it made little sense to tell people both to stay home and to go out and vote. On April 3 he called the legislature into special session to delay the primary. Evers wanted to convert the primary to a vote-by-mail format, and allow voters to return their ballots anytime until late May.

That, of course, would raise turnout, which is seen as a partisan issue in Wisconsin, and across the country. (If you want a lot of people to vote, you must be a Democrat.) But the gerrymandered Republican legislature could have proposed its own plan to postpone the primary, and Evers would have found himself under considerable pressure to go along with it.

Instead, the legislature came up with the best voter-suppression plan of all: Let’s make people risk their lives in order to vote! The leaders of both houses issued a joint statement: “Our Republic must continue to function.” The primary would go on as scheduled.

This looked like a trainwreck-in-the-making to Governor Evers, whose main job these days is to convince his citizens to stay home and not spread the virus. So the day before the primary — right after the legislature adjourned his special session without acting — he issued an order delaying the primary until June 9, noting the risk not just to the voters, but even moreso to the poll workers who “come into close proximity with dozens, if not hundreds, of voters”.

Wisconsin House Speaker Robin Vos and state Senate Majority Leader Scott Fitzgerald immediately challenged that order in the Wisconsin Supreme Court, which — surprise! — supported them 4-2. Vos and Fitzgerald rejoiced:

We continue to believe that citizens should be able to exercise their right to vote at the polls on Election Day, should they choose to do so … this election will proceed as planned.

What about voting absentee? OK, there’s an election. But that doesn’t mean you have to go to the polls to vote. The decision that the show must go on produced a predictable avalanche of absentee-ballot requests. Last year, when there was a spring election but not a presidential primary, 167,832 absentee ballots were requested. For the 2016 general election there were 595,914 requests. This year? 1,293,288. About 200,000 of those ballots were not returned in time to count, compared to just 30,000 in the 2016 general election.

The office that distributes absentee ballots wasn’t set up to deal with such a deluge of last-minute requests, so it soon became apparent that some number of legitimate Wisconsin voters wouldn’t get their ballots before election day.

A collection of (mostly Democratic) voters and groups sued to get an extension for absentee voters to return their ballots. A federal district court ruled in their favor, extending the deadline from election day to today, nearly a week later. The election commission was also enjoined from releasing results until then.

That ruling was overturned by the Supreme Court’s Republican* majority: Votes could continue to be counted until today, but they had to be postmarked by election day. That decision is unsigned. It mentions the problem that voters may not have received their ballots (which the lower court held was an unconstitutional burden on the right to vote), but then completely ignores it, comparing the situation to normal elections where people who request a ballot at the last minute may not have much time to fill it out and mail it. (It’s worth pointing out that the undelivered-ballot question is not just theoretical. “Three tubs of ballots for Oshkosh and Appleton have been discovered at a mail processing center in Milwaukee, according to the Wisconsin Elections Commission and a state senator.”)

Justice Ginsburg’s dissent asks a simple question:

If a voter already in line by the poll’s closing time can still vote, why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise?

The majority opinion doesn’t answer that question, because there is no answer.

Election day. The NYT’s Linda Greenhouse, in a column blasting the Supreme Court’s Republican majority, (and in particular skewering the majority’s use of the word “ordinarily”, as if anything about this situation were ordinary) summarized the election-day conditions.

Milwaukee voters are not ordinarily reduced to using only five polling places. Typically, 180 are open.

In a stunt that probably wasn’t as effective as he planned, Speaker Vos himself worked as an election inspector. Covered in protective equipment, he assured the public that “You are incredibly safe to go out.

Implications for future elections. In the back of everyone’s mind is the question: What if Covid-19 turns out to have a seasonal factor? It almost certainly won’t go away completely in the summer — it’s summer all year round in Florida, and they’ve had nearly 20,000 infections — but what if it diminishes, and then comes roaring back in the fall? Or what if we re-open the economy too quickly and get a fall resurgence that way?

In either case, it’s not impossible to imagine that the general election in November could take place under very similar conditions to the ones in Wisconsin on Tuesday. Wouldn’t it be nice to make a plan for that now, rather than go through last-minute drama and see large numbers of Americans disenfranchised?

You know who has a plan for that? Elizabeth Warren. Her plan calls for online voter registration, a vote-by-mail option, and at least 30 days of early voting. Radical stuff like that.

The problem with all those ideas, of course, is that they encourage people to vote. Or at least Republicans see that as a problem. They talk a lot about fraud, which is their usual excuse for voter suppression, but that’s not their real issue. (Washington state votes entirely by mail and has for years. Voting by mail is the standard thing for our overseas military. Fraud has not been a problem.) Their issue is that if you make voting easy, more people will vote. Marginal voters tend to vote Democratic, so it’s important to make voting as hard as possible.

* Typically, the media refers to the Court’s “conservative” majority, but that characterization has not been accurate for some while. More and more often, dating back to Bush v Gore, Citizens United, and John Roberts’ evisceration of the Voting Rights Act, the Court has been making decisions that can’t be explained by legal philosophy. The point is that Republicans should win, not that some theory of constitutional interpretation is better than another. So henceforth I’ll be refusing to play along with the ruse that their rulings have something to do with limited government or the Founders’ original intent.

Minority Rule Snowballs

When I did my annual end-of-the-year review in 2013, “the biggest single theme” I picked out was Minority Rule:

Republicans have given up on the idea of persuading a majority to agree with them. Instead, conservatives plan to rule from the minority.

I listed a number of the tactics they had been using: voter suppression, gerrymandering, and judicial activism among them. I didn’t expect these tactics to work nearly so well as they have. Consider:

  • In 2016, Mitch McConnell led a Senate majority that represented far fewer Americans than the Democratic minority. [1]
  • He used that minority-rule majority to radically change the way the Senate considers presidential appointments, blocking President Obama (who had defeated Mitt Romney 51%-47% in the 2012 election) from appointing a new swing vote on the Supreme Court. Instead, McConnell delivered that appointment to Donald Trump (who, even with the assistance of a hostile foreign power, lost the popular vote in 2016 to Hillary Clinton 46%-48%).
  • Trump’s appointee, Neil Gorsuch, was approved by the Senate 53-46. The senators voting for him represented far fewer Americans than the senators voting against him. [2]
  • Thanks largely to gerrymandering, Republicans in the House have a larger majority of seats than they have of voters. In 2012, Republicans won a 33-seat majority even while losing the popular vote. This year, as Democrats run considerably ahead in generic-ballot polls, political scientists argue over how big the Democratic voting margin needs to be to take control of the House. Is 5% enough? Seven percent? Eleven? One very likely outcome from this fall’s elections is that Democrats win a clear majority of voters, while Republicans win a clear majority of seats.
  • At the state level, things are often worse. Last year in Virginia, Democrats failed to gain a majority in the House of Delegates, despite a landslide 53%-44% victory in the popular vote. In North Carolina, the population is split relatively evenly between the two parties; Trump won the state with just under 50% of the vote compared to Clinton’s 46%, but the Democratic candidate won the governor’s race 49.0%-48.8%, despite one of the country’s most outrageous attempts at voter suppression. Meanwhile, gerrymandering gives the Republicans a 74-46 supermajority in the General Assembly, making Governor Cooper (and hence, the voters who elected him) virtually powerless.
  • Since Gorsuch joined the Court, several partisan gerrymandering cases have come up. The Court has not taken a stand. Gorsuch apparently does not even have a problem with racial gerrymandering.
  • Gorsuch was also the deciding vote in a 5-4 decision allowing purges of the voting roles in a manner than is likely to disenfranchise many legitimate voters while preventing virtually zero illegal votes.

In summary, minority rulers in Congress, the White House, and state capitals keep changing the rules to make it possible to rule with ever-smaller minorities. And a minority-appointed Supreme Court is fine with that.

A certain amount of minority rule was built into the Constitution in institutions like the Senate and the Electoral College, but I don’t think the Founders envisioned even those mechanisms becoming as skewed as they are today. [3] The Founders hoped the United States could avoid splitting into political parties, so they certainly never envisioned the vicious cycle of minority-rule entrenchment we’re seeing now: A political party centered in the small states that the Constitution favors (and representing the interests of the very rich) has used that extra boost of power to make the system increasingly more anti-democratic, giving themselves legislative and executive sway well beyond their voting numbers, making it increasingly difficult for the majority to vote them out, disenfranchising many citizens who might vote against them in the future, tearing down any limits on the use of money in politics, and packing the courts with judges who will rubber-stamp their power-grab.

With Justice Kennedy’s retirement, the minority-rule president and minority-rule Senate have a chance to appoint another Supreme Court justice, tipping the Court’s balance further in their favor for many years to come.  Jonathan Chait notes:

Democrats have won the national vote in six of the last seven presidential elections, which, with the retirement of Anthony Kennedy, will have resulted in the appointment of eight of the Supreme Court’s nine justices. And yet four of those justices will have been appointed by presidents who took office despite having fewer votes than their opponent.

We can expect this new justice to make it virtually impossible for the Court to limit or mitigate the techniques of minority rule. [4]

Increasingly, that minority-appointed and minority-approved Court majority has become nakedly partisan. Justice Kennedy’s opinion-of-the-Court in Citizens United is a flight of fantasy in which unlimited corporate money improves the public debate prior to an election, because money (even money from profit-making corporations seeking government favors) is speech, and “There is no such thing as too much speech.” Chief Justice Roberts’ gutting of the Voting Right Act contains very little legal reasoning beyond his vague assertion that “things have changed dramatically” since the first version of the VRA in 1965.

It is no longer necessary to understand the laws or the Constitution to guess which side the Court will favor: Whatever improves Republican chances in the next election is good law. The Constitution’s guarantee of “a republican form of government” increasingly leans on the word form; if the formal process of an election is carried out, it doesn’t matter whether the sovereignty of the People is respected.

We know where this process can go: The end result is plainly apparent in Putin’s Russia, where Potemkin elections are held on a regular basis. The path is laid out by authoritarian “democracies” in Hungary and Poland, whose rulers have not yet achieved Putin’s level of security against the People, but are on their way.

None of that is inevitable, but it gets harder to turn things around the further we go. If the Supreme Court won’t protect democracy, then we will have to count on elected officials to do it. If it takes a 7% margin to control the House, we need to get that 7% margin. If winning the popular vote by three million votes isn’t enough to elect a president, then we need to win by four million votes. Gerrymander-ending laws that can’t get through gerrymandered legislatures need to be passed by referendum.

If a majority ever regains power, it shouldn’t be shy about using it: We need a constitutional amendment that controls corporate political spending. Voting rights need protection, and gerrymandering has to be stopped — by legislation if the Supreme Court will allow it, and by amendment if it won’t. The Electoral College has to be abolished. Citizens without representation in Congress need to get it: Puerto Rico needs to be offered statehood, and the District of Columbia needs representation. Breaking up the big states needs to be on the table.

The sovereignty of the People is a principle that runs deep in the DNA of American voters, even those who might favor conservative social policies. We need to make them understand the trade-off they’ve been making: An American Putin would do many things they’d like, but is it worth surrendering the Republic?

If we’re going to pull this out, we need to have all hands on deck. Apathetic citizens need to be convinced to care and to vote. The canards that “it doesn’t really matter” and “both sides are the same” need to be rejected. For the next few cycles, and maybe for the rest of our lifetimes, democracy itself is going to be the most important thing on the ballot. It’s going to be on the ballot in every election from president to school board. It needs to win.

[1] I couldn’t find a source to reference, so I calculated for myself. (You can check me if you want.) From a list of the senators by state, I determined that in 2016, 20 states had two Republican senators and 16 states had two Democratic senators (counting Bernie Sanders and Angus King as Democrats), accounting for an 8-seat Republican majority (54-46). I then went to the 2010 census and added up: The 20 two-Republican states had a total population of 99,576,045 and the 16 two-Democrat states totaled 126,215,202. I had not expected the margin to be quite so wide.

[2] By the same methods as above, 22 states had two senators voting for Gorsuch and one (Georgia) had one for and one not voting, so I’ll count Georgia’s population for Gorsuch. Those states total 108,613,347. Eighteen states totaling 135,574,383 people had two senators voting against Gorsuch. The other states had one senator for and one against, which I’ll regard as canceling out.

[3] The first census, in 1790, showed that the most populous state was Virginia, with 454,983 free inhabitants. The least populated state was Delaware, with 50,207, a ratio of about 9-to-1. In the 2010 census, California had over 37 million people and Wyoming 568,300, a 66-to-1 ratio. If you combine the populations of the seven states with less than a million people — Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming — you have 5.3 million people represented by 14 senators. That’s 1/7th the population of California with 7 times the senators.

The situation gets worse when you consider the Americans not represented in the Senate at all: 3.4 million in Puerto Rico and 700K in the District of Columbia. Puerto Rico’s population almost exactly matches that of Alaska, the Dakotas, Vermont, and Wyoming put together; those states have 10 senators.

The situation is somewhat better in the Electoral College, but still considerably less fair than in 1790. The first census gave Virginia 21 electoral votes and Delaware 3; 9 times the population produced 7 times the electoral votes. But today California has 55 electoral votes to Wyoming’s 3; 66 times the population produces 18 times the electoral votes.

It’s also clear what the Founders’ solution would be: Break up large states. In their time, Kentucky was created from land claimed by Virginia, and Vermont from land New Hampshire and New York were arguing over.

[4] Trump’s legal situation creates yet another problem: Probably, the Supreme Court is going to have to make some serious rulings about whether the president can be subpoenaed, when a corrupt pattern of pardons constitutes obstruction of justice, and even whether the president can pardon himself. Trump may well be deciding those issues himself right now, by choosing a justice who will rule in his favor.

Three Misunderstood Things 7-24-2017

This week: census, environmental regulations, coal jobs

I. The census

What’s misunderstood about it: How can counting people be a partisan issue?

What more people should know: A lot rides on the census. The Census Bureau knows it gets the answers wrong, but Republicans have a partisan interest in not letting it do better. In 2020, it’s being set up to fail.


When the Founders wrote the Constitution, they knew the country was changing fast. New people were pouring into America — some coming by choice and others by force. If Congress was going to represent these people into the distant future, it would have to change as the country changed. So somebody would have to keep track of how the country was changing. That’s why Article I, Section 2 says:

The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.

Congress has implemented that clause by setting up the Census Bureau, which tries to count everyone in America in each year that ends in a zero. You can look at this as a rolling peaceful revolution: Via the census, states like Virginia and Massachusetts have gradually surrendered their founding-era power to new states like California and Texas.

No doubt you learned in grade school that counting is an objective process that produces a correct answer — the same one for everybody who knows how to count. But in practice, when a bunch of people count to 325 million, agreement starts to break down. Now imagine that you’re counting a field full of 325 million cats, most running around and jumping over each other, and a few actively hiding from you. How do you come up with an answer you have faith in?

That’s the Census Bureau’s fundamental problem: Americans won’t stand still long enough to be counted, and some are actively suspicious of anybody from the government who comes around asking questions. Inevitably, then, not everybody gets counted, and some people get counted more than once. This is not a secret; the Census Bureau admits that it gets the wrong answer.

That might not be so bad if the errors were random, but they’re not. Basically, the more stable your life is, the more likely you are to be counted correctly. If, for example, you’re still living in the same house with the same people that a census worker counted ten years ago, they’re going to count you again. But if you’re sleeping on your friend’s couch for a few weeks while you’re waiting for a job to turn up, and thinking about moving back in with Mom if you can’t find one, then you might get missed.

Stability isn’t a randomly distributed quality. The LA Times spells it out:

The last census was considered successful — that is, the 2010 results were considered to be within an acceptable margin of error. But by the Census Bureau’s own estimates, it omitted 2.1% of African Americans, 1.5% of Latinos and nearly 5% of reservation-dwelling American Indians, while non-Latino whites were overcounted by almost 1%. The census missed about 7% of African American and Latino children 4 or younger, a rate twice as high as the overall average for young children.

But that raises an epistemological question: How do you know your count is wrong if you don’t have a correct count to compare it to? And if you have that correct count, why not just use it?

The answer to the first question is statistics. Imagine, for example, that you’re trying to count all the species that live in your back yard. You go out one day and count 50. Then you go out longer with a bigger magnifying glass and find 10 more. Then the next couple of times you don’t find anything new. But then you find two. Are you confident that’s all of them now? What’s your best guess about how many are really out there?

Now extend that to every yard in the neighborhood. Imagine that after each household does its own count, you all converge on one yard for a more intensive search than you’d be willing to do on every yard. That search finds even more new species. Now how many do you think you missed in the other yards?

Statisticians have thought long and hard about questions like that, and have a variety of well-tested ways to estimate the number of things that haven’t been found yet. If you apply those techniques to the census, you get more accurate estimates of the total.

So why not just use those estimates? Two reasons:

  • It sounds bad: Ivory-tower eggheads are using a bunch of mumbo-jumbo Real Americans can’t understand to invent a bunch of blacks and Hispanics that nobody has ever seen.
  • Republicans have a partisan interest in keeping the count the way it is.

The Census determines two very important things: how many representatives (and electoral votes) each state gets, and how hundreds of billions of dollars in federal money for programs like Medicaid and highway-building get distributed among the states. The miscount gives more power and money to mostly white (and Republican) states like Wyoming and Kansas, and less to a majority non-white (and Democratic) state like California. Within a state, Republican gerrymandering works by crowding Democratic-leaning urban minorities into a few districts, leaving a bunch of safely Republican rural and suburban districts. That minority-packing is even easier to do if a chunk of those people were never counted to begin with.

The 2020 census is already headed for trouble. The Census Bureau is being underfunded, taking no account of the fact that it has more people to count than last time. Plans to modernize its technology went badly. And it is currently leaderless: The bureau chief resigned at the end of June, and Trump has nominated no one to replace him.

So we’re set up for an even bigger uncount of minorities this year. And that’s got to make Paul Ryan happy.

II. Environmental regulations

What’s misunderstand about it: Many people believe that a clean environment is a costly luxury.

What more people should understand: Externalities. That’s how well-designed environmental regulations can save more money than they cost.


Nobody should come out of Econ 101 without an understanding externalities — real economic costs that the market doesn’t see because they aren’t borne by either the buyer or the seller.

Pollution is the classic example: Suppose I run a paper mill, and I use large quantities of chlorine to make my paper nice and white. At the end of the process I dump the chlorine into my local river, because that’s the cheapest way for me to get rid of it. Because I use such an inexpensive (for me) disposal process, I can keep my prices low. That makes me happy and my customers happy, so the market is happy too. Any of my competitors who doesn’t dump his chlorine in the river is going to be at a disadvantage.

The problems in this process only accrue to people who live downstream, especially fishermen and anybody who wants to swim or eat fish. They suffer real economic losses — losses that are probably much bigger than what I save. But since their loss is invisible to the paper market, nothing will change without the some outside-the-market action — like a government regulation, a court order, or a mob of fishermen coming to burn down my mill.

Now suppose the government tells me I have to stop dumping chlorine. I have to find either some environmentally friendly paper-whitening technique or a way to treat my chlorine-tainted wastewater until it’s safe to put back into the river. Either solution will cost me money, and I will have no trouble calculating exactly how much. So you can bet there will be an article in my local newspaper (which now has to pay more for the newsprint it buys from me) about how many millions of dollars these new regulations cost. The corresponding gains by fishermen, riverfront resort owners whose properties no longer stink, and downstream towns that don’t have to get the chlorine out of their drinking water — that’s all much more diffuse and hard to quantify. So the newspaper won’t have any precise number to weigh my cost against. Chances are its readers will see the issue as money vs. quality of life. They won’t realize that the regulations also make sense in purely economic terms.

That’s an abstract and somewhat dated example, but similar issues — and similar news stories — appear all the time. The costs of new regulations are borne by specific industries who can calculate them exactly, while the benefits — though very real — are more diffuse, and may accrue to people who don’t even realize they’re benefiting. (Companies are very aware of what they’ll have to spend to take carcinogens out of their products, but nobody ever knows about the cancers they don’t get.) But that doesn’t mean that the benefits aren’t bigger than the costs, even in dollar terms.

The best example from my lifetime is getting the lead out of gasoline. If you were alive at the time, you probably remember that the new unleaded gasoline cost a few cents more per gallon. Spread over the whole economy, that amounted to billions and billions. What we got out of that, though, was far more than just the vague satisfaction of breathing cleaner air. Without so much lead in their bloodstreams, our children are smarter, less violent, and less impulsive. The gains — even in purely material terms — have been overwhelmingly positive.

III. Coal jobs.

What’s misunderstood about it: What happened to them? Environmentalists are often blamed for destroying these jobs.

What more people should know: No doubt environmentalists would kill the coal industry if they could. But the real destroyers of coal jobs are automation and competition from other fuels.


Coal miners are the heroes of one of the classic success stories of the 20th century. Mining was originally a job for the desperate and expendable, but miners were among the first American workers to see the benefits of unionization. Year after year, coal mining became safer [1], less debilitating, and better paying, until by the 1960s a miner no longer “owed his soul to the company store“, but could be the breadwinner of a middle-class family, owning a home, driving a nice car or truck, and even sending his children to college. Sons and daughters of miners could become doctors, lawyers, or business executives. Or if they wanted to follow their fathers into the mines, that promised to be a good life too.

However, the total number of coal-mining jobs in the United States peaked in 1923.

Was that because Americans stopped using coal? Not at all. Coal production kept going up for the next 85 years.

The difference was automation. Mines employed three-quarters of a million men in the pick-and-shovel days, but better tools allow 21st-century mines to produce more coal with far fewer workers.

If you take a closer look at that employment graph, you’ll notice a hump in the 1970s, when coal employment staged a brief comeback. That corresponded to the Arab Oil Embargo of 1973 and the increased oil prices of the OPEC era. For decades after that, coal was the cheaper, more reliable energy source. Americans who dreamed of energy independence dreamed of coal. In a 1980 presidential debate, candidate Ronald Reagan said:

This nation has been portrayed for too long a time to the people as being energy-poor, when it is energy-rich. The coal that the President [Carter] mentioned — yes, we have it, and yet 1/8th of our total coal resources is not being utilized at all right now. The mines are closed down. There are 22,000 miners out of work. Most of this is due to regulation.

However, all that changed with the fracking boom. Depending on market fluctuations, natural gas can be the cheaper fuel. Meanwhile, the price-per-watt of renewable energy is falling fast, and is now competitive with coal for some applications. So if a utility started building a new coal-fueled plant now, by the time it came on line a renewable source might be more economical — even without considering possible carbon taxes or environmental regulations.

The dirtiness of coal is a huge externality (see misunderstanding II, above), so regulations disadvantaging it make good economic sense. Looking at the full cost to society, coal is the most expensive fuel we have, and should be phased out as soon as possible.

Statements like that make good fodder for politicians (like Trump or Reagan) who want to scapegoat environmental regulations for killing the coal industry. However, dirty coal is like the obnoxious murder victim in an Agatha Christie novel: Environmentalists are only one of the many who wanted it dead, and other suspects actually killed it.

[1] The number of coal-mining deaths peaked at 3,242 in 1907. In 2016 that number was down to 8. As a comment below notes, though, that doesn’t count deaths from black lung disease, which are on the rise again.

Democracy Will Survive This, With Damage


Donald Trump will lose, but afterward the Republic will be weaker and more vulnerable.

Almost as soon as President Obama took office, his opponents began trying to delegitimize his presidency. He couldn’t really be president, they claimed, because he wasn’t really an American, or at least not a native-born one, as the Constitution requires. Within two months of his inauguration, the Oath Keepers organization was formed, for the purpose of encouraging members of the military and the police to disobey the “unconstitutional orders” they were sure would soon come from the new tyrant.

It’s tempting to believe this is just how partisan politics has always worked, but in fact it’s new. In 2000, by contrast, there were very legitimate questions about whether George W. Bush had really won the election. But Al Gore conceded graciously, and when 9-11 happened ten months later, Democrats rallied around their president. As recently as 2008, John McCain politely corrected supporters who raised bizarre theories about his opponent. “No ma’am,” he told one elderly woman, “He’s a decent family man [and] citizen that I just happen to have disagreements with on fundamental issues, and that’s what this campaign’s all about.”

After Obama was sworn in, though, everything changed.

Conspiracies. Every month or two for the last eight years, the fringe of the conservative media has found some new reason to tell its audience that we are on the brink of martial law or some other illegal seizure of power. FEMA is setting up camps to hold dissidents. ObamaCare is establishing death panels to eliminate the unworthy. New executive orders will soon confiscate guns. Obama plans to start a race warcancel the 2016 elections and stay in office forever. He’s secretly running ISIS from the White House. On and on.

Somehow, this apocalyptic mindset has achieved eternal youth. No matter how many times the predicted coup or edict or confiscation fails to materialize, the next one is absolutely going to happen, even if you’re hearing it from the same people who told you all the others. To conspiracy mongers like Alex Jones, the American Republic is like Kenny in South Park: Somebody has always just killed it, but with no explanation it will be back next week, when somebody else will kill it in a different way.

Occasionally — as with last summer’s Jade Helm 15 exercise — the mainstream press notices enough of the craziness to let the rest of us laugh at it. But usually these stories pass beneath most people’s radar until some uncle or cousin forwards them an email warning of the looming disaster.

GOP fellow travelers. Republican leaders have occasionally winked and nodded in the direction of this lunatic fringe. Maybe they “joke” about Obama’s citizenship, or pass laws to make sure that all future candidates have to present their birth certificates, or add legitimacy to one of these issues in some other way, without actually promoting them in so many words. They know these people are crazy, but they’re part of the Republican base, so why alienate them?

But the answer to that question ought to be obvious: Democracy only survives in a country as long as the overwhelming majority of people believe that it is working, or that it could work with some achievable revisions. The more Americans who believe in the kind of crazy crap that can only be corrected by an armed rebellion, the more fragile our whole system of government becomes.

The Trump normalization. Particularly since the conventions, Donald Trump has moved these fever-swamp issues into the spotlight, normalizing them as beliefs respectable Republicans might hold.

From the beginning of his candidacy, Trump has specialized in saying wild and dangerous things that draw media attention, whipping up white Christian anger, and flirting with violence. The sheer volume of bonkers things he says has overwhelmed the fact-checkers, [1] and can overwhelm our own ability to process each new outrage.

But it’s important to notice the recent shift in the kind of crazy he’s been promoting. As long as he was doing well (or could convince himself he was doing well), he played the bully, targeting politically weak groups like immigrants or Muslims. But as the polls turn against him, he has devoted more and more of his effort to undermining democracy itself.

Consider the claims in this week’s three major Trump stories:

  • He can’t lose this election, he can only be cheated out of it. [2]
  • Obama and Clinton are “founders of ISIS“, i.e., working for our enemies and against the American people.
  • If Clinton wins, only “Second Amendment people”, i.e., gun owners, will be able to stop her from “abolishing” constitutional rights. [3]

It’s hard to lay things out much more clearly than that: If Trump loses, then democracy has failed and it’s time to move on to more violent forms of resistance. After all, once an election has been stolen, what’s the point of waiting around for the next election? On the lunatic fringe, that message is coming through loud and clear.

This kind of talk goes far beyond fantasies about Mexico paying for a border wall or claims to have personally witnessed events that never happened. It strikes at the legitimacy of the government — or at least of any government that Trump doesn’t head himself. After he loses, a substantial number of his supporters are going to go on believing what he said about cheating and implied about violence. And that sets up a lot of bad things in the future.

We’ll get through this, this time. It’s important not to over-react. Despite his authoritarian and nativist tendencies, Trump is not Hitler. (As a friend recently pointed out to me, Hitler was more talented and more dedicated to his cause.) And all the signs currently point to him being soundly rejected by the American people. The more dangerous he sounds, the more likely it is that the electorate will turn out en masse to vote against him. Even many Republicans are disturbed by the idea that they are now in the party of Alex Jones.

In the short run, Trump’s loss might make things better. Mainstream Republicans seemed to have no answer for him in the primaries. But if Trump-like candidates appear in 2020, sane Republicans can at least say, “We don’t want to do that again.” A sound thrashing this fall might well send the Republican establishment back to the drawing board. Maybe they’ll conclude that pandering to the crazies wasn’t such a good idea after all.

But what about the sizable minority that will come out of the election believing what Trump said? That will be far fewer people than the 40-45% who will vote for him, but what if it’s 10%? What if 10% of the American electorate comes to the inauguration believing that their candidate legitimately won the election, but had it stolen? What if 10% believes that election fraud is not just a one-off event, but is how America works now? That our enemies are now in charge, that everything the government does is illegitimate, and that violent resistance is the only way for justice to prevail?

I don’t believe that there will be riots, assassinations, and civil war. As many people as might fantasize such things, I think few will try to carry them out. But Trump’s legacy could leave a very fertile ground for the next demagogue to mix politics and violence in a brownshirt fashion. As I said, Trump is not Hitler. But we may look back on him as Hitler’s warm-up act.

[1] The Week‘s Paul Waldman was already complaining about this in March:

The real genius of Trump’s mendacity lies in its brazenness. One of the assumptions behind the fact-checking enterprise is that politicians are susceptible to being shamed: If they lie, you can expose the lie and then they’ll be less likely to repeat it. After all, nobody wants to be tarred as a liar. But what happens when you’re confronted with a politician who is utterly without shame? You can reveal where he’s lied, explain all the facts, and try as hard as you can to inoculate the public against his falsehoods. But by the time you’ve done that, he has already told 10 more lies.

[2] Adding on to widely debunked comments he made last week, Trump said this Friday in Altoona:

Is everybody [here] voting? [Cheers.] If you do that, if you do that, we’re not gonna lose. The only way we can lose — in my opinion, I really mean this — Pennsylvania, is if cheating goes on. I really believe that. Because I looked at Erie and it was the same thing as this. And I’ve been all over the state, and I know this state well. I know the state well. But let me just tell you, I looked all over Pennsylvania, and I’m studying it, and we have some great people here, some great leaders here, of the Republican Party, and they’re very concerned about that. And that’s the way we can lose the state. And we have to call up law enforcement, and we have to have the sheriffs and the police chiefs and everybody watching. Because, if we get cheated out of this election, if we get cheated out of a win in Pennsylvania, which is such a vital state. Especially when I know what’s happening here folks — I know it. She can’t beat what’s happening here. The only way they can beat it, in my opinion, and I mean this 100%, [is] if in certain sections of the state, they cheat.

We’re gonna watch Pennsylvania. Go down to certain areas and watch and study and make sure other people don’t come in and vote five times. The only way we can lose, in my opinion – and I really mean this, Pennsylvania – is if cheating goes on. I really believe it.

His I-can’t-really-lose claim flies in the face of the last four polls of Pennsylvania, all of which have Clinton up by double digits. And that ties the “cheating” claim to another bogus claimall the polls are skewed against Trump. (Romney supporters claimed the same thing before the 2012 election, and the results proved them wrong.)

Think about what this means: After Trump loses Pennsylvania — which he will — his supporters will have already denied any basis for claiming that he lost legitimately. The polls were biased, the election results were fraudulent — all that remains is Trump’s pure feeling that he would have won a fair election.

The substance of the fraud claim also deserves to be addressed, particularly since Sean Hannity and others have been backing Trump up on it. They have nothing. There is no reason to believe voter fraud played any role in 2012 or will play a role in 2016. 

Trump and Hannity discussed the fact that Mitt Romney got zero votes in 59 precincts of Philadelphia as evidence that some kind of fraud must have happened. Ryan Godfrey, an independent (former Republican) election inspector in Philadelphia, explained in a tweetstorm just how ridiculous that accusation is to anyone who understands the process.

Here’s how it looks to anyone who understands journalism: Hannity has been complaining about those 59 precincts since 2012, as if he were not part of a news organization and is helpless to investigate any further. But if in fact fraud happened in Philadelphia, it would not be hard for a real journalist to come up with solid evidence. That’s the beauty of that zero result: If you can turn up anybody who claims to have voted for Romney, that’s evidence of fraud.

So Sean, here’s how you could do it:

  1. First, get access to the Romney campaign’s get-out-the-vote data for these precincts, and see if they were expecting anyone to vote for him. (That’s how GOTV works: You compile databases of the people you expect to vote for you, then on election day you remind/cajole/nag them until they vote.) If there are no such people, then you’re done; the zero-vote outcome is credible.
  2. If there are, check publicly available records to see if any of them voted. (Again, if none did, you’re done; there’s no story.)
  3. If you still have some names on your list, contact them and see if they will testify that they voted for Romney in a precinct where no Romney votes were recorded. One person might be explained away, but if you get a half-a-dozen-or-so such witnesses, you can probably send somebody to jail and maybe get yourself a Pulitzer.

The Philadelphia Inquirer tried something like this immediately after the election: They went looking for registered Republicans in the zero-for-Romney areas. They didn’t find them. (In Godfrey’s tweetstorm, he notes that some of those areas didn’t record any votes in the Republican primary either.)

Take North Philadelphia’s 28th Ward, third division, bounded by York, 24th, and 28th Streets and Susquehanna Avenue. About 94 percent of the 633 people who live in that division are black. Seven white residents were counted in the 2010 census. In the entire 28th Ward, Romney received only 34 votes to Obama’s 5,920. Although voter registration lists, which often contain outdated information, show 12 Republicans live in the ward’s third division, The Inquirer was unable to find any of them by calling or visiting their homes.

… A few blocks away, Eric Sapp, a 42-year-old chef, looked skeptical when told that city data had him listed as a registered Republican. “I got to check on that,” said Sapp, who voted for Obama.

That’s real journalism: You go out, talk to people, and get answers, rather than just raise questions because you think something smells off. The fact that Hannity, after four years of suspicions, still can’t point to anything more solid than his feeling that zero can’t be right, tells me that he knows there’s no real fraud here. Either he has so little confidence in the charge that he didn’t even think it worthwhile to do the follow-up work, or he did the work, turned up nothing, and decided his listeners didn’t need to know that.

This is a general pattern in election-fraud stories: Somebody does just enough research to find something that sounds suspicious, and then runs with it. Either they never do the follow-up investigation that seems called for, or when somebody else does, it turns up nothing — like this case in South Carolina, which I told you about in 2013.

[3] This also deserves a lengthy discussion. Here’s the quote:

Hillary wants to abolish — essentially abolish — the Second Amendment. By the way, if she gets to pick [booing from crowd] if she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is. I don’t know.

The official Trump-campaign explanation — that he meant gun-rights supporters could use their political power to make sure Trump wins — is obviously nonsense. The scenario Trump had laid out in “if she gets to pick her judges” assumed she’d already been elected.

My favorite response was tweeted by Sarah Milov:

Maybe 19th amendment people can do something about Trump

(The 19th Amendment gave women the right to vote.)

Paul Ryan interpreted the quote as a joke gone bad, and if you watch the video, Trump’s tone and phrasing is consistent with a joke. But English-professor-turned-lawyer Jason Steed, who wrote his Ph.D. dissertation on the social function of humor, explained in a tweetstorm that

Nobody is ever “just joking”. Humor is a social act that performs a social function (always).

A joke, he explains, defines an in-group that laughs and an out-group that doesn’t.

If you’re willing to accept “just joking” as a defense, you’re willing to enter [the] in-group, where [the] idea conveyed by the joke is acceptable.

This is why you should never tell a racist joke, even if everybody in the room knows that you’re joking: The joke itself normalizes racism; by laughing, your audience ratifies that normalization.

Rolling Stone‘s David Cohen connected Trump’s “joke” to the important notion of stochastic terrorism: when you mark someone for attack by the wackos that you know are out there, while keeping your distance from the attack itself. Last November, after a mass shooting at a Planned Parenthood clinic in Colorado, Valerie Tarico explained the process:

1. A public figure with access to the airwaves or pulpit demonizes a person or group of persons.
2. With repetition, the targeted person or group is gradually dehumanized, depicted as loathsome and dangerous — arousing a combustible combination of fear and moral disgust.
3. Violent images and metaphors, jokes about violence, analogies to past “purges” against reviled groups, use of righteous religious language — all of these typically stop just short of an explicit call to arms.
4. When violence erupts, the public figures who have incited the violence condemn it — claiming no one could possibly have foreseen the “tragedy.”

Previous examples include the role Bill O’Reilly played in the assassination of the Kansas abortion-provider Dr. George Tiller, and Byron Williams, who shot two California policemen when stopped on his way to attack the Tides Foundation, which had become central in Glenn Beck’s fantastic theories.

BTW: Hillary Clinton has never called for “abolishing the Second Amendment” — essentially or otherwise. Here’s her list of proposals on guns, all of which are within current Supreme Court interpretations of the Second Amendment.

Why You Should Care about Felon Voting Rights

Something important happened in Virginia this week: Governor Terry McAuliffe restored voting rights to Virginia felons who have served their time and completed the subsequent probations. In the age of mass incarceration, that’s a lot of people: more than 200,000 in Virginia alone. Nationally, an estimated 5.85 million people have lost their voting rights because of felony convictions. That’s bigger than the winning margin in every recent presidential election other than 2008.

But the question that probably leaps to mind is: Why would changing that be a good thing? The class of felons includes a lot of bad people, so why do we want more bad people picking our leaders? But felon voting rights are important for both micro and macro reasons.

The individual ex-con. The micro-level reason is that we want an ex-con to have a path back into normal life. (John Oliver did a great segment on this a few months ago. The ex-con’s difficulty re-entering society also made it into pop culture through the recent hit movie Ant-Man.) The old-fashioned notion was that by the time a prisoner got released, he had “paid his debt to society” and everything was square now. But in reality, many ex-cons can only hope for a second-class citizenship, which permanent disenfranchisement symbolizes. And if you can never hope for a normal life, returning to crime becomes more tempting.

Decades ago, you might start over by taking the Jean Valjean approach: Move far away and keep quiet about your criminal history. But in this era of universal databases, the relentless Inspector Javert has been automated: Your past is bound to catch up with you.

Large-scale voter suppression. The macro-level reason is that our criminal justice system is biased, so disenfranchising felons is a way to diminish the voting power of blacks, the poor, and other over-policed segments of society.

The racial difference might be defended if it were solely the result of blacks committing more crimes than whites, but that’s far from the whole story. An ACLU report says:

[R]acial disparities result from disparate treatment of Blacks at every stage of the criminal justice system, including stops and searches, arrests, prosecutions and plea negotiations, trials, and sentencing. Race matters at all phases and aspects of the criminal process, including the quality of representation, the charging phase, and the availability of plea agreements, each of which impact whether juvenile and adult defendants face a potential [life without parole] sentence. In addition, racial disparities in sentencing can result from theoretically “race neutral” sentencing policies that have significant disparate racial effects, particularly in the cases of habitual offender laws and many drug policies, including mandatory minimums, school zone drug enhancements, and federal policies adopted by Congress in 1986 and 1996 that at the time established a 100-to-one sentencing disparity between crack and powder cocaine offenses.

Racial disparities in sentencing also result in part from prosecutors’ decisions at the initial charging stage, suggesting that racial bias affects the exercise of prosecutorial discretion with respect to certain crimes. One study found that Black defendants face significantly more severe charges than whites, even after controlling for characteristics of the offense, criminal history, defense counsel type, age and education of the offender, and crime rates and economic characteristics of the jurisdiction.

Governor McAuliffe invoked the racial issue by comparing felon disenfranchisement to the poll tax, but I think a better comparison is to another Jim Crow relic: literacy tests. The literacy test had a similarly virtuous rationale: Do you want illiterate people picking our leaders? But it was applied in biased ways, and combined with other systemic discrimination (i.e., separate-and-unequal school systems) to keep blacks from voting.

Partisan politics. As so often happens these days, what ought to be a simple good-government argument has gotten swamped by partisan power politics. Blacks overwhelmingly vote Democratic, so Republicans are against anything that enfranchises more of them. (This has the cycle-completing effect of motivating more blacks to vote Democratic.) And so, Kentucky’s Democratic Governor Steven Beshear issued a similar order as he was leaving office, but the incoming Republican Governor Matt Bevin rescinded it before it could take effect. Felon disenfranchisement effects about 1 in 19 Kentuckians, but 1 in 6 blacks.

As Mike Dukakis learned when he became the Willie Horton candidate in 1988, felons (especially black ones) make for bad political optics. And that puts governors on the horns of a dilemma: Like Gov. Besmear, they can wait until they’re leaving office to restore voting rights, when critics can claim that they didn’t dare do it until they were slinking out the door. Or, like Gov. McAuliffe, they can restore rights earlier in their terms, and face the criticism that they are trying to remake their own electorate.

Optics or partisanship aside, though, it’s the right thing to do. We’ll have a hard time tackling the racial biases in our justice system as long as they continue to give one side an advantage on election day.

Themes of 2013: Minority Rule

It’s hard to remember now how 2013 began: with the Republicans (having believed their own skewed-polls rhetoric) in shock at having lost the 2012 presidential election by five million votes, and having lost even the aggregate House of Representative tally by 1.3 million (even if gerrymandering gave them a majority of seats). But … but … but … the deficit … unemployment … Benghazi … Obama is the worst president ever … real Americans are conservatives …

How could it have happened?

Demographics. The closer they looked at the exit polls, the worse it got. Sure, Obama got 93% of the black vote; everybody expected that. But also 71% of Latinos and 72% of Asians. (Asians? Aren’t they supposed to be the model minority? Don’t they have more makers than takers? How could they side with the Kenyan usurper?) 60% of 20-somethings and 55% of 30-somethings. 70% of folks who list their religion as “none”.

All those groups are growing. The groups that kept the election from being a complete blow-out are the ones that seem to be shuffling off center stage: Over-65s went for Romney 56%-44%. White men voted Republican 62%-35%. (In Teddy Roosevelt’s day, white men were the electorate. How can you get 62% of white men and lose?)

So 2012 wasn’t just a loss for Republicans, it was a loss that augured bigger losses in the future. All the predictions Jonathan Chait had made the previous February in “2012 or Never” seemed to be coming true, and it was looking like Never. As the balls fell and the corks popped to welcome 2013, Republicans were asking: What do we have to do to become the majority again?

Change? Some answers seemed obvious. (The best collection of these answers was put together by College Republicans.) Stop talking about Hispanic immigration as if it were the barbarian invasion of Rome. Tone down the anti-gay rhetoric (not because the gay vote is so pivotal, but because homophobic hate-mongering turns off young straights). Stop pandering to the radical fringe on abortion and other social issues. Come up with competing conservative answers to questions that loom ever larger to middle-class Americans: Where are the jobs going to come from? How are the kids going to pay for college? What will happen to me and my family if I get sick?

The new year brought an obvious issue to focus on first: gun violence. (The first Sift of 2013 started: “This week everybody was talking about guns again.”) Sandy Hook was still fresh when the new Congress was sworn in, and (unlike the response to previous mass shootings), the furor didn’t seem to be dying down.

By wide margins, the public supported universal background checks for gun buyers, re-instituting the assault-weapon ban that President Bush let lapse, and banning the high-capacity magazines that had played such a key role in the Tucson shooting. For a time, some kind of bipartisan gun bill looked to be a no-brainer.
Then we saw the pattern that would repeat itself again and again all year: Some well-funded extremist group (in this case the NRA) rallied the conservative base with scare tactics (Obama was planning to confiscate guns by executive order!), threatened primary challenges against wavering Republicans, and whipped the Republican leadership into line.

In the end, a Republican-led filibuster blocked even a weak-tea gun bill that 54 senators supported.

Something similar happened to immigration reform: In this case a bipartisan bill made it through the Senate only to be refused a vote by the Republican House leadership, which offered no alternative.

Take that, Hispanics! Screw you and your fastest-growing-voter-bloc BS. Think we care? Think again!

Ditto for women, who are already a voting majority. Again and again, Republicans pandered to the an extreme anti-abortion or anti-birth-control minority with the most outrageous proposals and rhetoric. The most extreme recent example is Michigan’s “rape insurance” law, which won’t allow insurance companies to cover abortion (even in cases of rape) in any general-purpose health plan. Unless you planned on being raped and paid in advance for a special abortion rider on your healthcare policy, you’re out of luck.

Did anybody notice a post-2012 let-up in Republican anti-gay rhetoric or an olive branch to people who don’t go to church? Or a Republican jobs plan? Or any healthcare plan beyond “repeal ObamaCare”? Nope.

In the fall, poll after poll showed large majorities against a government shutdown or a threat to the debt ceiling. Did that matter? No.

This isn’t how we’re used to seeing political parties behave. So what’s going on here? How do Republicans plan to persuade a majority of Americans to support them?

It’s simple: They don’t.

Minority rule. That is the single biggest development of 2013: Republicans have given up on the idea of persuading a majority to agree with them. Instead, conservatives plan to rule from the minority.

In the old days that might have meant a military coup or something, but modern minority-rule techniques are much more imaginative. The strategy is simple: take advantage of all the hurdles that exist between the will of the majority and the enforcement of a law. If you can knock that majority down just a little at each stage, what looked like a tidal wave can become just a little ripple.

Defense in depth. Consider all of the structural things Republicans have been pushing. Stop looking at them one-by-one and think about them as a system.

  • Voter suppression. You don’t have to ban people from voting, just make it difficult. Limit the days and hours and number of voting machines so that you create long lines. Find excuses to remove legitimate voters from the roles. Require IDs they don’t have, and don’t accept the IDs they do have. Change the rules late in the game. Plenty of determined people will manage to vote anyway, but all you’re trying to do is knock the numbers down.
  • Unlimited money. You don’t have to buy elections outright, you just want to control them a little. With unlimited money, you can keep incumbents in line by threatening a primary challenge based on fringe issues. You can eliminate the need for volunteers by hiring professionals. You can keep candidates in the race longer or knock them out earlier. You can create issues out of nothing, de-legitimize real issues, or just confuse the voters. You can make the campaign obnoxious and ugly, so that voters don’t want to participate.
  • Gerrymandering. If you concentrate the other party’s voters in a few districts, you can give your party an advantage in a majority of districts, even if you have fewer voters. The paradigm here is Pennsylvania, where a slim Democratic voting majority led to a 13-5 Republican advantage in members of Congress. The Senate itself is a form of gerrymandering: It took 7.7 million Democratic votes to elect Dianne Feinstein to the Senate, but only 102 thousand votes put Republican Lisa Murkowski in. Their Senate votes count the same. (The conservative pipe dream of repealing the 17th Amendment would make this situation worse.)
  • Shadow government. You may think your state laws come from the legislators you elected. Wrong! If your legislature has a Republican majority, chances are your state laws are being written by the American Legislative Executive Council (ALEC), a national pseudo-legislature whose controlling members are corporations rather than people.
  • Emergency managers. Here’s a neat trick: Cut state aid to cities and their school districts, then when they get into financial trouble replace their elected governments with “emergency managers“, i.e., dictators appointed by the governor, who can void union contracts and refuse to fund pensions already earned. More than half of the black citizens of Michigan have lost their right to local government. If the voters don’t like it and vote for repeal, pass the law again and make it referendum-proof. Think that can’t happen in your state or your town? Why not?
  • The Hastert Rule. Immigration reform is one of a number of ideas that are believed to be supported by a majority of House members, but never come up for a vote. Shutting down the government, on the other hand, had only minority support, but it happened. How does that work? The House operates by the majority-of-the-majority principle, a.k.a. the Hastert Rule. Speaker Boehner won’t bring bills up for a vote unless a majority of the House Republican caucus supports them. So instead of needing 218 votes (a majority) to block something, you can do it with only 117 (a majority of the 233-member Republican majority). The logic of primary challenges is similar: It doesn’t matter what the majority of voters in a Republican congressman’s district think, if a majority-of-the-majority (i.e., a majority of voters in his Republican primary) want to throw him out.
  • The filibuster. In the Senate, 41 votes can block legislation. Until recently, 41 votes could also block presidential appointments, which Republicans were using to prevent President Obama from altering the current conservative bias in the judiciary. So the senators representing the 21 smallest states — total population 35.4 million, or about 11% of the country — can block any law.
  • Hostage-taking. Sure a minority can block things, but how can they pass laws of their own? Simple: take hostages. That’s what the 2013 government shutdown and debt-ceiling crisis was about. An extremist minority could block the government from taking necessary actions, and what it wanted in return for not burning down the house was to repeal ObamaCare. Ordinarily that would take a majority, but not if you have a gun to the economy’s head.
  • Nullification. A similar tactic was implicit in a new use of the filibuster to nullify existing laws. Refuse to approve anybody to certain enforcement positions. So, you would need a majority to scrap all the nation’s labor laws, but they can’t be enforced if the National Labor Relations Board doesn’t have a quorum, and you can block appointments via the filibuster. Voila! No labor laws! (Nullification is what caused Democrats to eliminate the filibuster on presidential appointments.)
  • Judicial activism. Even if a law makes it past all those hurdles, it just takes five Supreme Court justices to declare it unconstitutional. The integrity of the system depends on judges not abusing their power, but sometimes they do. During the Warren Court of the 1960s, judicial activism was a liberal thing. That’s ancient history now, as we saw most clearly in the ObamaCare decision. At the time the Affordable Care Act was passed, there was no legal precedent to justify invalidating it, and few legal analysts were concerned about the possibility. (Salon’s Andrew Koppelman: “The constitutional limits that the bill supposedly disregarded could not have been anticipated because they did not exist while the bill was being written.”) But in a matter of months, a new interpretation of the Commerce Clause was invented and gained the support of the Court’s five conservative justices. (Justice Roberts narrowly saved the law by re-interpreting the individual mandate as a tax rather than a penalty, but the new narrowing of the Commerce Clause stands and could skewer any number of government programs in the future.) Conservative judicial activism has been key in the whole minority-rule enterprise, by unleashing the unlimited money and opening the door to voter suppression, which red states have been happy to walk through.

Across the board, Republicans are defending and in some cases sharpening the tools of minority rule. So if they annoy a majority of Americans with their extremist agenda, who cares? Democrats would need a really large majority, say 5-7%, just to overcome gerrymandering and get even in the House, not to mention getting 60 votes in the Senate. And even then, unlimited money can usually buy a handful of Democrats with a local special interest, and the Supreme Court can invent new kinds of “religious freedom” or “corporate rights” to keep any real change from happening.

The long term threat. In the long run, a dedicated majority can get its way. If Democrats can win the state legislatures in 2020, they can de-gerrymander both the congressional districts and the legislative districts within the states. If Democrats can hold the presidency long enough, they can end conservative judicial activism. Then, if that same dedicated majority will keep those Democrats honest, there’s a chance America can start controlling money in politics and make progress towards real democracy that serves the public interest.

But that’s the question: Will a majority stay dedicated, through years of watching politics amount to nothing? Those young people who believed Candidate Obama when he said, “Yes we can” — what will become of them? What if they conclude “No we can’t” and just stop bothering?

That’s the ultimate goal of minority rule: a discouraged majority that stops looking to political action as a way to solve its problems.

A State-by-State Update on Voter Suppression

Since June’s Supreme Court ruling that threw out parts of the Voting Rights Act, the Justice Department has lost its ability to block state laws designed to disenfranchise blacks, Hispanics, and other minorities. Subsequently, Republican-run states have been eagerly taking advantage of their vote-suppressing opportunities.

Here are the stories I ran across just this month:

North Carolina. The can’t-miss video clip of the week was The Daily Show’s Aasif Mandvi interviewing North Carolina Republican Executive Committee member Don Yelton. Yelton

  • admitted that the voter-fraud problem in his county was no more than 1 or 2 people out of 60,000
  • used the cliche “One of my best friends is black.”
  • admitted he shared the famous Obama-witch-doctor photo on Facebook
  • admitted that North Carolina’s voter-suppression law “is going to kick the Democrats in the butt. … If it hurts a bunch of college kids that’s too lazy to get off their bohunkus and get a photo ID, so be it. If it hurts the whites, so be it. If it hurts a bunch of lazy blacks that want the government to give them everything, so be it.” When Mandvi summed up “and it just so happens that a lot of those people vote Democrat”, Yelton sarcastically said “Gee” as if no one could have possibly foreseen that.
  • justified voter suppression by pointing to people “too stupid” to get a photo ID and asking: “Do you want those people picking your president?”

At one point Yelton’s responses caused Mandvi to say, “You know that we can hear you, right?” Apparently the local Republican Committee chair could hear him too, because he asked for and got Yelton’s resignation.

Virginia. Virginia has a statewide election a week from tomorrow, so of course it’s time for a last-minute purge of the voter rolls. (That’s how Florida Governor Jeb Bush and Florida Secretary of State — and George W. Bush campaign chair — Katherine Harris won the White House for Jeb’s brother in 2000.) MSNBC reports:

Lawrence Haake III, the registrar of Chesterfield County and a Republican, told MSNBC he received a list from state election officials in August of around 2,200 voters in his county to be struck from the rolls. The state said the names had shown up in a database of voters registered in more than one state.

But when Haake tested a sample of around 1000 names, he found that 174 of them had registered in Virginia more recently than any other state, meaning they were eligible to vote. In an affidavit filed as part of the Democratic challenge to the purge, Haake called the list “clearly inaccurate and unreliable.”

Since there is no evidence that any of the voters on the purge list have voted in multiple states at once (or intend to), the main (and possibly the only) effect on Virginia’s elections will be to disenfranchise voters who believe they are registered legally.

The court challenge to the purge was denied. (Since Haake and a few other local election officials had refused to purge any name they found to be inaccurate, there was no proof that any specific person had been unfairly disenfranchised, despite the fact that other officials appear to have implemented the purge without further investigation.) The purge was defended in court by the Virginia Attorney General’s office. Coincidentally, the AG is Ken Cuccinelli, the Republican gubernatorial candidate who is currently trailing in the polls.

The problem here is similar to the one in South Carolina that I discussed in “The Myth of the Zombie Voter“: When you assemble lists like this by matching computer databases (in SC they matched voter rolls against death notices) you make mistakes. Taking a voter off the rolls needs to be treated as a serious matter, requiring human oversight. Those humans need time to do their jobs, and the purged voters need to be notified and given time to protest, rather than just being told they can’t vote when they show up at the polls.

Texas. Texas women are discovering an important reason everyone should care about protecting everyone else’s vote: You might be next. The new Texas voter-ID law mandates that the name on your voter registration and the ID you show match exactly, which can be a problem for many women. The new law tripped up Judge Sandra Watts, because her driver’s license lists her maiden name as her middle name (as was standard in 1964 when she got married); her voter registration lists her actual middle name.

KIII TV reports: “Nueces County election officials say it is often a problem for women who use maiden names or hyphenated names.” As for the voter fraud this law supposedly targets, KIII quotes District Attorney Mark Skurka: “I have never seen an issue of that in Nueces County, in all the years that I’ve been here.”

Because local election officials determined that the name on Judge Watts’ driver’s license was “substantially similar” [definition here] to her voter registration, she did get to vote after signing an additional affidavit. (Not only does this take extra time, but it gives a vote-suppressing local official an opportunity to cut corners on the definition of “substantially similar” or to say menacing things about the penalties for perjury in hopes that the voter will be intimidated and go away.) She could also have voted a provisional ballot, which would only be counted if she came back with “proper identification” within six days. If the problem is a name mismatch, proper ID might have to include a marriage or divorce certificate. (And if you can’t lay your hands on those documents and say “screw it, the election wasn’t decided by one vote anyway”, the vote suppressors win.)

Of course the primary targets of voter suppression are people who don’t drive: primarily the poor, the elderly, and the disabled. If you’re poor, live in a city, and take the bus to work, Republicans want to make it as hard as possible for you to vote.

It’s estimated that 1.4 million Texans who would otherwise be eligible to vote don’t have a driver’s license or other acceptable ID. Supposedly that’s OK, because they can obtain a free state ID card. According to the Dallas Morning News, 41 such cards have been issued.

Again, you need documentation verifying your current name. According to the Brennan Center for Justice, about 1/3 of women can’t meet that standard. Time quotes the Brennan Center’s Wendy Weiser: “A full 34% of women don’t have documents proving citizenship with their current name on it.”

And this is all supposed to solve the problem of voter impersonation, which the Dallas Morning News describes as “nearly non-existent“. In July I described the attempt of the conservative media to create a different impression in “The Myth of the Zombie Voter“.

Kansas and Arizona. Arizona’s proof-of-citizenship requirement for registering to vote was thrown out by the Supreme Court in June — it was so bad that the 7-2 majority opinion was written by arch-conservative Justice Scalia — because it violated the federal National Voter Registration Act. But Arizona (and Kansas, which passed a similar law) think they have a way around the Court’s ruling: two-tier voting. Federal elections may be subject to the NVRA, but maybe if a separate registration is required for state and local elections, the citizenship-proof requirement can be applied to them. And if the dual-registration process is time-consuming and confusing for new voters … well, that’s win/win, isn’t it?

If that tactic reminds you of Jim Crow, it should. The Nation’s Ari Berman quotes the ACLU’s Dale Ho:

These dual registration systems have a really ugly racial history. They were set up after Reconstruction alongside poll taxes, literacy tests and all the other devices that were used to disenfranchise African-American voters.

This time Hispanics are the primary target, but they’re also suppressing Arizona’s Native American vote. (The Intertribal Council was the lead plaintiff in the suit against the Arizona law. Native Americans have been specifically targeted in South Dakota and Montana.) (BTW, Fox News’ Megyn Kelly apparently did NOT say Native Americans were illegal immigrants. That rumor is another case of satire jumping the fence into the news pasture.)

Voting Rights one month after Shelby

A little over a month ago, the Supreme Court threw out Section 4 of the Voting Rights Act. That was the part that forced the former Jim Crow states to clear with the federal government any changes in voting rules. Now that those states were off the federal leash, no one knew exactly what would happen next. But there were several possibilities:

The Jim Crow states could have proved Chief Justice Roberts right. “Nearly fifty years [after the original Voting Rights Act was passed],” the Chief Justice wrote, “things have changed dramatically.” In this scenario it would become clear that the South no longer needed federal oversight. States would adjust their voting practices occasionally as circumstances demanded, but not renew the effort to disenfranchise nonwhites.

In her dissenting opinion, Justice Ginsburg disagreed.

Jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to ap­prove, auguring that barriers to minority voting would quickly resurface were the preclearance remedy elimi­nated.

Score one for Ginsburg. As soon as the VRA decision rolled out of the printers, states started whittling away at voting rights. The current champion is North Carolina, which on July 25 passed an omnibus voter suppression law that the governor has pledged to sign soon, despite seeming to know little about it. Salon sums up:

They have, in essence, included in this bill every conceivable voter suppression tactic that has ever been dreamed up over the past decade by the Republican Party — and then some.

Raleigh’s WRAL has a detailed list, but every way you can imagine to restrict voting (short of just suspending elections entirely) is there: photo ID (not accepting student IDs, because students trend Democratic), less early voting, shorter polling hours, no provisional ballots, no same-day registration, restrictions on registration drives …

As in other Republican-dominated states that have passed such measures (but usually piecemeal), there is no evidence at all of voter impersonation — the only kind of fraud photo IDs hinder — in North Carolina. (Last month I described how an extensive South Carolina investigation of in-person voter fraud failed to find any.) NC has some history of absentee-ballot fraud, which this law does not address. (Why discourage absentee voting when it trends Republican?)

Photo-ID requirements essentially target voters who don’t drive — mainly the poor, the disabled, and big-city singles, all of whom trend Democratic. Democracy North Carolina estimates that blacks are 23% of the state’s registered voters, but 34% of the registered voters without acceptable photo IDs. (Slicing those numbers a different way: 3.8% of registered white voters lack an ID, while 7.4% of registered blacks do.)

Reduced early voting and short polling hours target people who have a hard time getting off work or making transportation connections — mainly the working poor and (again) non-drivers. Black voters make up 29% of early voters and 34% of those who register on election day.

Congress could update Section 4 of the VRA to meet the Court’s guidelines. This option was always going to be tricky, because Justice Roberts didn’t really say what would make him happy. (That was my main complaint in This Court Sucks.) But still, the 2006 re-authorization of the VRA passed the Senate 98-0 and the House 390-33, and a lot of those people are still around. So you’d think Congress would be motivated to make the law work again.

No luck there either. The House subcommittee holding hearings on the VRA is chaired by Trent Franks, who was one of the 33 voting against renewing the VRA in 2006. The witnesses the subcommittee’s Republican majority called had a unified message: Don’t bother; there’s no problem that needs fixing.

When you consider that the states covered by Section 4 are overwhelmingly represented by Republicans (strange coincidence there, don’t you think?) and Republicans control the House, the prospects for a reasonable revision seem remote.

The Justice Department could get a federal court to re-instate preclearance on specific states for specific reasons. OK, Section 4 is most likely gone for good, so Section 5 (preclearance) doesn’t function automatically. But there’s still Section 3c, containing what for some reason is called the “pocket trigger”. Translating from the legalese: If the Attorney General wins a voting-rights case in federal court against some state, the court can do more than just reverse whatever discriminatory practice the state had instituted; it can also “retain jurisdiction” over that state’s voting laws “for such period as it may deem appropriate”.

In short, what the Jim Crow states were doing fifty years ago can no longer justify preclearance. But if a court finds a state is doing something bad right now, and if it believes that new bad things are likely to keep happening in that state, it can re-institute preclearance for that state.

On July 25, Attorney General Holder announced he would take this path, and his test case is Texas, where there is an ongoing lawsuit about redistricting and alleged attempts to gerrymander Hispanics out of their fair representation in the legislature. Holder also plans to challenge the Texas photo-ID law, which the Justice Department had blocked under the now-inapplicable Section 5. (Texas’ photo-ID law is particularly insidious. Yes, you can get a free state ID card if you don’t already have a drivers’ license; but in the heavily-Hispanic parts of the state, you might have to get somebody to drive you 100 miles to the nearest office that can issue such an ID. The Justice Department charges that 1.5 million eligible Texas voters lack photo IDs, while Texas counters that “only” 795,000 do. And a gun permit is considered adequate ID for voting, but a University of Texas student ID isn’t.)

Eventually, one such case is going to get back to the Supreme Court, and then we’ll find out something about our five conservative justices: Do they just dislike Section 4 of the Voting Rights Act? Or do they dislike the voting rights Section 4 protected?