A positive step forward.

September 28, 2022

          First, to readers and their families in Florida, our thoughts are with you as prepare for the landfall of Hurricane Ian.

 Quick Update on Senator Manchin’s bill to fast-track energy projects.

          Mitch McConnell wasted no time in killing Manchin’s proposal to fast-track energy project approvals (including fossil fuel generation plants and oil pipelines). Senator Schumer dropped Manchin’s proposal after it became clear that the inclusion of the bill would result in a defeat of the funding resolution that is necessary to keep the government operating past Friday of this week. See The Hill, McConnell, GOP give political payback to Manchin. As a result, Republicans are expected to support a funding measure that will keep government doors open until December 16th.

McConnell announces support for Electoral Count Act reform.

          In a move that effectively guarantees passage of an electoral reform bill this year, Mitch McConnell announced his support for the Electoral Count Reform and Presidential Transition Improvement Act of 2022. That is good news for all Americans interested in ensuring the continued peaceful transfer of power between presidential administrations.

          Although some election law experts were hoping for a stronger reform package, the Senate version of the bill will eliminate multiple opportunities for mischief in presidential elections. It also addresses some of the loopholes and ambiguities that give rise to the so-called “Independent State Legislature Theory” (or “ISL”) that has been the subject of recent apocalyptic headlines. So, let’s take a high-level look at the ISL theory to see how the proposed bill addresses some of the wilder claims of the ISL theory.

          The Independent State Legislature Theory. The most important thing to know about the ISL theory is that it is complete, unadulterated, Grade-A bunk. (You can quote me on that.) Before getting to the mechanics of the inane theory, let’s focus on the ISL’s purpose. Republicans have concocted ISL as a way of claiming that state legislatures have the power to overturn the popular vote if they don’t like the outcome of the election. Amazingly, Republicans claim that the US Constitution imbues state legislatures with the “superpower” of overturning elections and substituting their will for that of the people. Poppycock! The Constitution says no such thing! Want proof? Let’s look at the Constitution’s provisions.

          The Constitution gives states two roles in federal elections. As to elections of US Senators and Representatives, states can set the “time, place, and manner” of elections for congressional candidates “in the manner prescribed by the Legislatures thereof.” Importantly, the Constitution gives Congress the power to override the states’ rules (“but the Congress may at any time by Law make or alter such Regulations.”)

          Second, the “Electors Clause” says that each state legislature shall “direct” the manner for selecting presidential electors. That’s it. Once a state legislature has “directed” the manner of selection of electors, its role in the process of electing the president is complete. It is important to note that every state has “directed” the manner of appointing electors—i.e., by popular vote.

          Critically, the ISL theory is premised on the notion that after the people have voted (as “directed”) to select presidential electors, state legislatures can disregard the popular vote and substitute their own slate of electors. The ISL theory is thus based on the supposed ability of state legislatures to effectuate an “after-the-fact” change in the method for selecting presidential electors.

          The proposed reforms. This is where the proposed Electoral Count Reform Act comes in—by expressly foreclosing the notion that state legislatures can change the manner of selecting electors after a popular vote has been held “as directed.” The Act would provide as follows:

The electors of the President and Vice President shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day.

       That simple provision goes a long way to defanging the Independent State Legislature Theory. States can make prospective changes to selecting presidential electors in future elections, but not in elections that have already occurred under existing law. So, if the Georgia legislature wants to disenfranchise all citizens in Georgia by “directing” that presidential electors shall be chosen by the state legislators, it can do so—but only for future elections.

          The proposed Electoral Count Reform Act would enact additional provisions, including:

• Requiring each state to certify appointment of electors “pursuant to such State laws . . .  enacted prior to election day.”

• Mandating that the certificates of appointment of electors “shall be treated as conclusive with respect to the determination of electors appointed by the State.”

• Prescribing that decisions by federal courts regarding the appointment of electors “shall be conclusive” to the extent they involve questions of federal or constitutional law.

• Prohibiting “judge shopping” by specifying the location (venue) for federal lawsuits that challenge the selection of electors.

• Requiring and appointing a panel of three federal judges to determine disputes over the selection of electors and providing for a direct appeal to the US Supreme Court that must be decided before the date for the meeting of electors.

• Clarifying that “the role of the [Vice President] while presiding over the joint meeting [of Congress] shall be limited to performing solely ministerial duties.”

• Specifying that the Vice President “shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors, or the votes of electors.”

• Requiring that any objections to electors in Congress shall be “signed by at least one-fifth of the Senators . . . and one-fifth of the Members of the House.”

• Limiting the grounds for objection to electors in Congress to (a) that the electors were not “lawfully certified” by a state, or (b) the votes of the electors “has not been regularly given.”

          Collectively, the above provisions remove many of the ambiguities that Trump sought to exploit in his coup attempt. There are other ways to defeat or circumvent the popular vote, but let’s leave those for another day. And let me acknowledge that I have vastly simplified the ISL theory and the constitutional framework for electing a president in order to explain the provisions of the proposed reforms. But if you hear or read an analysis about the ISL theory that provokes anxiety, a good place to start in analyzing that prediction is with the Constitution, followed by the Electoral Count Reform Act, if passed.

More on Italy.

          Reps. Lauren Boebert, Marjorie Taylor Greene, and Senator Ted Cruz praised the “victory” by the neo-fascists “Brothers of Italy” in parliamentary elections earlier this week. Of course, they did—because they are neo-fascists in waiting. See The Independent, Boebert, Marjorie Taylor Greene and Ted Cruz under fire for celebrating Italian far-right victory.

          Although I gave an overview of the Italian election in yesterday’s newsletter, I subsequently found this superb analysis on Substack, The Italian Vote is a Wake-up Call to the Democratic Left by “TCinLA,” whom many of you may recognize from the Comments section in Heather Cox Richardson’s Letters from an American. If you are interested in a deep dive into the political dynamics of how a neo-fascist party came out on top in a liberal western democracy, I highly recommend the analysis by TCinLA. He writes, in part,

The result in Italy is a country in which the center-left is supported mainly by the educated, secular, and professional classes, while the right appeals to a cross-section of the rest of the country—the working class as well as the middle and upper-middle classes, along with the religiously pious and the large number of Italians who treat religion as an identity-marker without actually believing in or practicing it.

          Sound familiar? Substitute “America” for “Italy” and you have a first approximation of the political divide in America. As TCinLA notes, if Democrats want to avoid Italy’s (temporary) fate, we must work to expand our appeal to the working and middle classes.

That was fast!

          Trump is burning through lawyers like there is no tomorrow (which there might not be—for him). After Trump struggled to find a “real” lawyer to defend him in the Mar-a-Lago search cases, he convinced Chris Krise to destroy his reputation for the privilege of representing Trump. And $3 million dollars. Don’t forget the $3 million dollars, which Mr. Krise apparently believes is the value of his reputation.

          Krise was a respected lawyer with deep experience in criminal law and Florida appellate practice. To represent Trump, Krise had to resign from his lucrative partnership at a BigLaw firm. Less than a month later, Krise has been demoted from his lead role in the two actions relating to the Mar-a-Lago search. See CNN Politics, Chris Kise: The newest addition to Trump's legal team sidelined in Mar-a-Lago search case

          The timing of Krise’s demotion is suspicious. The special master has ordered Trump to file a statement on Friday declaring whether any documents on the FBI inventory of the search were “planted” by the FBI. If Krise refused to make an untrue assertion about the alleged planting of evidence (as demanded by Trump), it may be that Trump sidelined Krise for refusing to lie on his behalf. It will be interesting to see which lawyers, if any, are willing to sign the statement

Postcards to Swing States.

          I received an urgent request from Postcards to Swing States for additional volunteers to help write 1.5 million postcards. The note I received is below. In a complete coincidence (not kidding!), my wife posted a video on her blog today about writing postcards for Postcards to Swing States! Here is the appeal for volunteers:

Postcards to Swing States needs additional volunteers to write 1.5 million remaining postcards to voters to help Democrats win key House races across the country. Volunteers need to buy postcards and stamps and have until October 28 to write the postcards. Since 2020, Postcards to Swing States volunteers have sent 32 million handwritten postcards to voters, using methods that studies prove help Democrats win close elections. There are only six weeks left to stop Kevin McCarthy from being House Speaker. Please sign up at Postcards to Swing States. 

Concluding Thoughts.

          I had conversations with several readers today (via Zoom and an outdoor dinner) and the question of “the polls” came up. I shared my non-expert view that the polls reflect the turmoil that is buffeting the electorate and are therefore effectively useless (and counterproductive).

          As an example, never in the history of polling have we experienced the elimination of a constitutional right, but pollsters (almost all male) tell us dismissively that reproductive liberty is not an issue that will motivate the electorate. That may be what the numbers say, but if they do, they are wrong. I recognize that the whole point of scientific polling is to eliminate “biases” and “instincts” from the art of prediction, but it would be helpful for the pollsters to look up from their computer screens and put down their calculators long enough to consider whether a “never before in history” development deserves some consideration in their error bars.

          An article in the NYTimes several weeks ago dismissed the uptick in registrations among women by explaining that as measured against an electorate of 155 million voters, the increase in registration among women was statistically close to “zero.” That may be true as a matter of statistics and math, but an increase of 10,000 women voters in a state that Biden won by 20,000 votes is 50% of the margin of victory!

          It would be wrong to make up “just so” stories to make ourselves feel better about volatile polls. But it would also be wrong to listen to pollsters who seem to lack humility after blowing it in two of the last three elections (which, as they will tell you, is a 66% failure rate). Let pollsters keep crunching numbers while you engage in the hard work of democracy in action—concerned citizens talking to other concerned citizens about the fate of their democracy.  

          Talk to you tomorrow