Following as I do the sometimes tedious but always essential discussions of the Electoral Count Act of 1887, I feel constrained to sound the alarm about the dangers of fighting the last (2020) war, and did so at New York:

So far the discussion around this year’s midterm elections has mostly focused on House and Senate races, which could break up the Democrats’ governing trifecta in Washington. There’s been far less focus on gubernatorial races, which only tend to matter to people in the states involved. But the big batch of competitive races for governor in 2022 could ultimately have a huge impact on the entire nation. Governors play a central but overlooked role in the certification of presidential elections, so the election of Republican governors in battleground states could increase the odds of a successful 2024 election coup by Donald Trump, if efforts to reform our election laws ignore the possibility of rogue governors.

Under the Electoral Count Act of 1887, electors certified by governors are considered valid unless overturned by both chambers of Congress. In four of the states whose results were contested by Trump in 2020 (Michigan, Nevada, Pennsylvania, and Wisconsin) Democratic governors were in place to prevent the certification of fake Trump electors. In two others (Arizona and Georgia), Republican governors refused to play Election Coup ball.

But MAGA bravos have a significant chance of winning Republican gubernatorial nominations in the Democratic-governed states mentioned above, and midterm dynamics give the GOP a better-than-average chance (at this early point) of flipping them all. In Arizona, Doug Ducey is term-limited, and the two top Republicans in the race to succeed him are supporters of the bogus 2020 election audit. And in Georgia, Trump is sponsoring a serious primary challenge to Brian Kemp by former U.S. senator David Perdue, who is campaigning on the theme that Kemp “let us down” by certifying Biden’s 2020 win in that state.

Yes, there is bipartisan interest in Congress right now in an effort to repair the hazy and dangerous provisions of the Electoral Count Act. But because the threat to democracy in 2020 came from Trump’s efforts to encourage state legislators and the vice-president to overturn the results, the potential threat of rogue governors may not get the attention it deserves.

Election expert Matthew Seligman has been warning that the tendency to fight the last war (or coup attempt) could lead to a scenario where a governor and/or some other certifying state official could send in a false certificate on behalf of the popular-vote loser and then count on a single congressional chamber to uphold it, as Business Insider’s Grace Panetta points out:

“A far more urgent and straightforward threat though, according to Seligman, is something he calls the Swing State’s Governor’s Gambit. It would only require a few partisan officials who control the state government in one swing state to submit an illegitimate slate of electors for their party’s losing presidential candidate — and their party also controlling one chamber of Congress and counting it.

“’As a result,’ Seligman wrote in a recent report, ‘a hyperpartisan House of Representatives can collaborate with a swing state’s governor to steal that state’s electoral votes, and under the Act’s existing structure there is nothing the opposing party could do to stop them.’”

Guess who is favored to control the House after the 2022 midterms? A “hyperpartisan” Republican conference led by Trump ally Kevin McCarthy. Usually control of the House doesn’t flip in presidential elections, so if McCarthy is Speaker going into 2024 he would probably emerge with the gavel still in his hand. And the 45th president is already trying to sabotage Republican support for doing anything to fix the Electoral Count Act.

So even if you are a progressive comfortably ensconced in a deep-blue state unlikely to go MAGA in 2022, the midterm gubernatorial elections in highly competitive states are well worth watching. Another January 6 nightmare with a different outcome in Congress could be in the offing.

 

The conservative majority of the U.S. Supreme Court outdid itself this week, and not in a good way, as I explained at New York:

In an order that will have significant short-term and long-term effects on voting rights, redistricting and racial-gerrymandering laws, five conservative U.S. Supreme Court justices set aside a lower-court ruling that would have forced Alabama to draw a congressional map for the next decade that better reflects the state’s demographics.

The facts of the case are clear and uncontested: Last year, the Republican-controlled Alabama legislature drew the state’s new congressional map to provide six majority-white (and sure to be Republican) districts and one majority-Black (and sure to be Democratic) district even though 27 percent of Alabama’s population is Black and concentrated in a way that would easily accommodate a second majority-Black district. On January 24, a three-judge federal district court panel (including two judges appointed by Donald Trump) unanimously held that the map violated Section 2 of the Voting Rights Act of 1965 based on existing Supreme Court precedents, and it ordered the legislature to substitute one of the many available maps with two majority-Black districts for its tainted plan.

But now the Supreme Court has granted Alabama’s “emergency” appeal to reimpose its original map. As is generally the case in such “shadow docket” decisions (rulings on time-sensitive petitions when the Court is not in session or when circumstances won’t permit full briefings, oral arguments, and deliberations), the rationale for the action of the majority isn’t clear. Three conservative justices (Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett) silently concurred, while two (Brett Kavanaugh joined by Samuel Alito) filed a concurring opinion heavily emphasizing the so-called Purcell doctrine, which discourages federal-court interventions in such cases too close to elections. The Court’s three liberal justices (Stephen Breyer, Sonia Sotomayor, and Elena Kagan) joined in a dissent written by Kagan arguing that the district-court decision gave the legislature plenty of time to comply before Alabama’s May primary date and accusing the majority of covertly reversing Voting Rights Act precedents to let Alabama (and probably other southern states) get away with racial gerrymandering:

“Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument. Here, the District Court applied established legal principles to an extensive evidentiary record. Its reasoning was careful — indeed, exhaustive — and justified in every respect. To reverse that decision requires upsetting the way Section 2 plaintiffs have for decades — and in line with our caselaw — proved vote-dilution claims.”

But the most striking opinion published by the Court was a separate dissent filed by Chief Justice John Roberts, the author of landmark decisions gutting a key enforcement provision of the Voting Right Act (Shelby County v. Holder in 2013) and restricting federal-court jurisdiction over partisan gerrymandering (Ruccho v. Common Cause and Lamone v. Benisek in 2019). You’d think he might be eager to further erode Voting Rights Act enforcement in redistricting cases, and you might be right. But he concluded that such a new departure in the law would require a full review with oral arguments since “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.” Thus, he said, the 2022 elections should proceed under the requirement that the Alabama legislature create a second majority-Black district, a decision that could in theory be reversed for subsequent elections.

Robert’s dissent makes the brazenness of the majority ruling pretty plain notwithstanding Kavanaugh’s rationalization about the lower court’s tardiness (caused, of course, by the Alabama legislature itself). It most obviously cost Black voters in Alabama (and, for that matter, Democrats) a majority-Black House seat in 2022 — and probably for the rest of the decade — and short-circuited what many experts anticipated would be court orders adding majority-Black House seats in Louisiana, South Carolina and possibly even Georgia.

From a longer-term perspective, Roberts’s concurrence shows he is probably ready to join the majority in this case in further restricting grounds for the application of the Voting Rights Act to redistricting decisions once this or a similar case comes back to the Court for full consideration. And as election law expert Rick Hasen notes, the Supreme Court continues to expand the shadow docket by adopting Kavanaugh’s expansive interpretation of the Purcell doctrine “on steroids” to “shut down important election law changes” by lower federal courts. It’s all pretty bad news for voting rights and for federal-court review of elections at a time when clarity and fairness are badly needed.

It didn’t get much national attention, but a dog that did not bark in California was significant, as I explained at New York:

The relatively disappointing legislative results the Democratic trifecta in Washington has produced is attributable in no small part to the obstructive power of the Senate filibuster in a chamber split 50-50 between the two parties. But sometimes a lack of partisan power cannot explain progressive policy failures. Few states are more reliably Democratic than California. Democrats hold solid vetoproof supermajorities in both Houses of the California legislature, and the latest decennial redistricting process (conducted by an independent commission) shouldn’t change that any time soon. And vetoes are rarely necessary, since the governor has been a Democrat since Arnold Schwarzenegger left office in 2011. Any thought that a post-2020 backlash against Democratic rule might upset the Golden State party status quo died with the decisive September 2021 defeat of a ballot initiative aimed at removing Governor Gavin Newsom from office.

Yet California lawmakers have chronically failed to fulfill pledges to achieve the most cherished policy goal of the state’s progressive activists: creating a state-financed universal health-care system. It’s happened again this year with the demise of a single-payer bill without so much as a vote in the lower chamber of the legislature, the California Assembly.

Single-payer health care is part of the California Democratic State Platform, and the state party’s Progressive Caucus has threatened to withhold endorsements from legislators who didn’t support it. It was backed by Newsom when he was elected in 2018, and by Assembly Speaker Anthony Rendon this year. Like the measure that passed the California Senate in 2017 but died in the Assembly, the current bill, AB 1400, is all dessert and no green beans: it prospectively bans private health insurance and sets up a public single-payer system but puts off enactment the tax revenues (somewhere between $314 billion and $390 billion annually, according to legislative analysts) to pay for the new benefits.

Yet AB 1400’s principal sponsor, San Jose legislator Ash Kalra, yanked the bill earlier this week, arguing that he was far short of the votes needed to enact it and didn’t want to put his colleagues on the spot with a recorded vote.

Newsom didn’t comment on the situation. Rendon pushed the blame onto Kalra. Progressives organizations — most notably the California Nurses Association, which has made enactment of single-payer health care its major priority — were very unhappy with the outcome, the latest in a number of major disappointments on this subject in California and elsewhere. The CNA blasted Kalra by name in a statement, saying, “Nurses are especially outraged that Kalra chose to just give up on patients across the state.”

So why does this keep happening? Progressives who consider single-payer a no-brainer substantively point to the enormous corporate lobbying apparatus opposing this or similar universal-health-care legislation, as CalMatters notes:

“The influential California Chamber of Commerce, which represents business interests in the state, labeled AB 1400 a ‘job killer’ shortly after it was reintroduced in January, indicating it would be a top priority to defeat. Its lobbying campaign — joined by dozens of insurers, industry groups and the associations representing doctors and hospitals — included social media advertisements and a letter to members denouncing the “crippling tax increases” that would be needed to pay for the system.”

But it’s this last issue — taxes — that probably best explains the reluctance of Democratic legislators to put their money where their mouths are on single-payer. Some argue passing a bill like AB 1400 without including the taxes necessary to implement it is simply irresponsible. Others fear a tax revolt that could revive the moribund California Republican Party. That is particularly true on the brink of a midterm election in which the GOP may have the wind at its back across the nation, possibly extending all the way to the West Coast.

In any event, Democratic legislators who did not publicly express support for the legislation will brace themselves for possible primary challenges, while Newsom, who is up for reelection next year, will need to make clearer what he will and won’t support and how hard he’ll fight for health-care reform when it comes back up, as it most definitely will. While remaining mostly silent about AB 1400, Newsom has given a lot of attention to his own proposals to expand the state’s Medicaid program to include undocumented immigrants and others excluded from the current health-care system.

The whole brouhaha helps explain why single-payer health care is not seriously being discussed in Washington, and why progressives with a clear and fixed vision of the kind of society Democrats ought to support are so often disappointed.

Anyone who has been around for a while probably understands how and why Supreme Court confirmations have become partisan, like everything else. But I provided a quick history lesson at New York:

Beneath the hilariously insincere conservative criticism of President Biden for “politicizing” the Supreme Court selection process by pledging to name the Court’s first Black woman is a very different reality: Both political parties fear a “rogue” justice who will align herself against the “team” responsible for her nomination. This concern is much stronger among Republicans, who feel a number of GOP-appointed jurists betrayed them in the past. These grievances were a principal reason for conservatives’ appreciation of Donald Trump’s tightly controlled, highly transactional system for choosing Supreme Court members.

The biggest betrayal of all came on June 29, 1992, when a Republican Party that had already come under the control of the anti-abortion movement was shocked at the decision in Planned Parenthood v. Casey. Expected to deliver the long-awaited overturning of Roe v. Wade, the Court instead gave the central holding of Roe a lease on another three decades of life, with all five justices who upheld abortion rights having been appointed by Republican presidents. One of those five, Reagan appointee Anthony Kennedy, frustrated Republicans off and on for another quarter-century and earned the eternal enmity of cultural conservatives with authorship of the majority opinion in Obergefell v. Hodges, creating a federally established right to same-sex marriage. The biggest favor Kennedy did for his party was to retire when it controlled the White House, allowing Trump to nominate former Kennedy clerk Brett Kavanaugh, a safely ideological successor.

It’s telling that of the five Judases who handed down Casey, two (Justices Kennedy and Sandra Day O’Connor) were appointed by Mr. Conservative himself, Ronald Reagan, while another (David Souter) was appointed by Reagan’s successor, George H.W. Bush. A fourth apostate (John Paul Stevens) was appointed by Gerald Ford, and a fifth (Harry Blackmun) was appointed by Richard Nixon.

Blackmun wrote the main opinion in Roe v. Wade, but that’s not even the most striking example of a Republican-appointed justice who went rogue. That would be Chief Justice Earl Warren, who presided over the Court as it handed down multiple famous decisions promoting civil rights and civil liberties. Conservatives despised and denounced Warren’s jurisprudence for decades. Yet this appointee of Republican president Dwight D. Eisenhower had been a highly partisan Republican politician before becoming chief justice. He was Thomas Dewey’s running mate in 1948, and before being elected governor of California in 1942, he was chairman of the state GOP and a member of the anti-Asian nativist group Native Sons of the Golden West. Most famously, as governor during World War II, Warren championed the internment of around 100,000 Japanese Americans, the majority of them U.S. citizens. He was not a very likely prospect to become the most famously progressive chief justice in the Court’s history. That’s how it goes with lifetime appointments to the federal bench: Teamwork cannot be taken for granted. Another of Ike’s appointees to the Court, William Brennan, built a reputation even more liberal than Warren’s.

Thanks to the Republican control of the presidency for 44 of the 77 years since World War II and some vagaries of luck (Democrat Jimmy Carter had no Supreme Court openings to fill, whereas Donald Trump had three), Democrats have had fewer opportunities to be “betrayed” by Court appointees. Truman appointee Sherman Minton, another former politician (he had been a Democratic senator from Indiana) became a leading advocate of judicial restraint. JFK’s sole appointee, Byron “Whizzer” White, was one of the original dissenters in Roe v. Wade (and was still around to dissent in Casey). In 2008, Democratic presidential aspirant Bill Richardson cited White as his favorite justice, and it damaged Richardson’s campaign significantly.

In any event, the partisan anger spurred by all these apostates is pretty good evidence that the idea of a “politicized” process for selecting Supreme Court justices is neither new nor newly unpopular. The long-term trend is in favor of more careful vetting to ensure “betrayals” don’t happen, with Republicans insisting on conformity as much as Democrats. No “team” likes a player who runs the wrong way.

The pending retirement of Justice Stephen Breyer will give President Biden the rare opportunity for a Supreme Court nomination, and at New York I examined the lopsided record of recent opportunities to shape the Court.

Assuming President Joe Biden’s nominee to replace retiring Supreme Court Justice Stephen Breyer is confirmed, it will be only the fifth time that a Democratic president has added a member to the Court since the administration of Lyndon B. Johnson. That’s right — the roster of Democratic-nominated Supreme Court justices during the last ten presidencies is short: Ruth Bader Ginsburg and Stephen Breyer, by Bill Clinton; and Sonia Sotomayor and Elena Kagan, by Barack Obama. To date, these Democratic-nominated justices have served a total of 67 years on the Court. During the same time frame, there have been 15 Supreme Court justices nominated by Republican presidents, serving a total (to date) of 292 years.

This lopsided record is partially, of course, attributable to Republican success in presidential elections since 1968. And Obama nominee Merrick Garland’s non-confirmation was a matter of partisan malice; Mitch McConnell, who controlled the Senate at the time, denied him even a confirmation hearing. Other whiffs involved bad luck. In his one term as president, Donald Trump had the opportunity to name three justices (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). In his one term, George H.W. Bush named two justices. One of them, David Souter, served for 19 years. The other, Clarence Thomas, is still on the Court 13 years after Bush’s son left the White House. Yet Democrat Jimmy Carter had not a single Supreme Court appointment. Barring something unforeseen, Joe Biden should at least avoid that fate.

Opportunities to put new members on the Court are becoming rarer. One bipartisan trend in recent decades has been the nomination of younger jurists whose lifetime terms will presumably be longer. During the last ten presidencies, four justices ascended to the Court before reaching the age of 50. All of them (William Rehnquist, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett) were nominated by Republican presidents. Rehnquist was on the Court for 33 years. The other three are on the Court right now.

So Democrats have some catching up to do, and Biden knows he’d better get it right, not only by redeeming his pledge to place the first Black woman on the Court, but by choosing someone fully vetted and prepared to serve for a long, long time.