Today’s Edition: A week of progress.

October 22, 2021

          The disappointing news of cuts in Biden’s Build Back Better agenda reflects progress in negotiations among Democrats. Difficult decisions are frequently deferred until the last minute as bruised feelings give way to reality. According to Politico, Senators Sanders and Manchin have begun direct negotiations between themselves after a “cathartic blow-up” at a leadership meeting. Senator Sinema’s last-minute refusal to support tax increases to pay for the plan has caused Democrats to scramble for other sources of funding. The lack of panic over Sinema’s hand-grenade suggests that Democrats will find a way to fund a bill that is in the $1.7 trillion range. Biden is making positive comments about a prospect for a deal, leading some Democrats to suggest that an agreement is days away. Although there may be difficulties ahead, Democrats made significant progress in the last week. Good. We should hold onto that positive thought as we approach the weekend.

          The fallout for Senators Manchin and Sinema remains to be seen. A reader recommended an op-ed that made the case that Democrats could benefit from Senator Manchin’s efforts to appeal to moderates. See Matthew Yglesias in WaPo, “Manchinism can help the Democrats. Sinema’s politics are a dead end.” I have been a harsh critic of Senator Manchin, but Yglesias makes that case that he is a force for good in the Democratic Party:

          Democrats are incredibly lucky to have someone as open to their ideas as Manchin representing such a deep-red state. Biden, after all, attracted a mere 29.7 percent of the presidential vote in West Virginia in 2020. . . . On the face of it, Democrats would appear to have something to learn from Manchin, who has served in the Senate for more than a decade, about selling the party’s brand in inhospitable political territory. . . . Resurrecting a Manchin-style wing of the party could be a godsend for the Democrats in large swaths of the country. It wasn’t so long ago, after all, that Democrats held 60 Senate seats, including from Arkansas, South Dakota and Alaska.

          Although I don’t agree with everything Yglesias writes in his op-ed, his conclusion is irrefutable. If Democrats want to expand their majority in the Senate, it will be by gains in purple and red states.

          Senator Sinema is a different story. Per Yglesias,

          Sinema, by contrast, has all the personal style cues of a stereotypical urban educated liberal, and breaks with her party primarily to defend unpopular business interests.

         Sinema’s defense of “unpopular business interests” is damaging to (has doomed?) her chances for reelection. On Thursday, five veterans resigned from her advisory council. The NYTimes obtained a copy of their letter of resignation, which was scathing in condemning Sinema for betraying her campaign promises. The letter said, in part,

          You have become one of the principal obstacles to progress, answering to big donors rather than your own people. We shouldn’t have to buy representation from you, and your failure to stand by your people and see their urgent needs is alarming.

The letter from the veterans has been converted into a YouTube ad in which one of the veterans reads the letter. The video has been viewed 21,000 times as of Thursday evening. You can help it go viral by viewing and, if you agree, “liking” the video.

Can Republican legislatures “override the will of the people” by ignoring the popular vote?

          In response to my article yesterday on the limited impact of restrictive voter ID laws, I received over 100 emails that said, in effect, “Okay, but what about the fact that GOP legislatures have passed laws allowing their legislators to change the will of the people and send any electors they choose to the electoral college?” The sudden and widespread concern over that question caused me to believe that the readers were reacting to a common source, but I have not been able to identify the source. If anyone can do so, let me know so I can review and address the specific assertions in the source.

          I understand the concern that GOP legislatures will ignore the popular vote in their states if a Democratic candidate wins in 2024. The theory is that those legislatures will disregard the vote and send their own slate of electors to support a Republican presidential nominee. That strategy was at the heart of the memo written by John Eastman and served as the proposed framework for Trump’s aborted coup.

          The concern about legislatures “overturning the will of the people” has a basis in fact—but actually overturning the will of the people would be more difficult than suggested by many commentators. This subject is expansive and complicated, so I will attempt to discuss the subject over the course of several newsletters.  For tonight, let’s just look at what the Constitution says about choosing electors and how that process works in practice.

          The constitutional basis for choosing electors is set forth in Article II of the Constitution, which says that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .” Between 1832 and 1864, some legislatures simply appointed their electors. That was and is an acceptable method under the Constitution for appointing electors. See Congressional Research Service, “The Electoral College: How It Works in Contemporary Presidential Elections.”

          Thus, it is theoretically possible for GOP legislatures to ignore the will of the people and appoint a GOP slate of electors. That result is unlikely, for several reasons. Most importantly, the Constitution says that the legislatures shall appoint electors “in the manner [they] may direct.” Since 1864, all fifty state legislatures have “directed the manner” of appointing electors—which is by popular vote among their citizens.

          Given that all states have enacted a constitutional scheme under the Article II for appointing electors, legislatures are constitutionally bound to follow the procedures in effect as of election day for choosing electors. In other words, a legislature cannot change the rules for choosing electors after that selection process has taken place in accordance with “the manner directed” by the legislature. To do so would violate the state statute prescribing the manner of choosing electors, as well as Article II and the 12th and 14th Amendments to the Constitution. Those are substantial hurdles for state legislatures to overcome if they seek to overturn the will of the people. And no state has repealed its statute prescribing the appointment of electors by popular vote.

          Let’s stop here. Commentators, scholars, concerned Democrats, and wannabe insurrectionists have posited scenarios under which GOP legislatures might ignore their own statutes and the Constitution to overturn the victory of a Democrat in the popular vote. Other safeguards make that unlikely, but that is more than I can cover in this newsletter. If you want to read ahead of my discussion, see Lawfare, “State Legislatures Can’t Ignore the Popular Vote in Appointing Electors.”

Help recruit poll workers in Wisconsin.

          The best way to avoid lawsuits over whether legislatures can overturn the will of the people is to ensure that the will of the people is manifest. That requires free and fair elections, which in turn relies on honest people overseeing the election process at the precinct level. A reader sent a request for volunteers to help recruit poll workers in Wisconsin—a swing state. Per the reader request:

          Here's a link to Wisconsin's friend/phone bank to recruit poll workers that they have to nominate by the end of November. In Wisconsin, each party nominates poll workers in every county so that there is equal representation at the polling place. In my opinion, this system is even better than having observers, because these poll workers are empowered to ensure that their locations operate fairly and that eligible voters are able to cast their ballots on the spot! Here's the link to volunteer: Phonebank/Friendbank for Voter Protection · WisDems Voter Protection. Help if you can!

A trusted source of information and motivation.

          In a Zoom call with readers today, several readers recommended a presentation by Noah Feldman and Larry Diamond hosted by Jews United for Democracy and Justice. Feldman is a leading constitutional scholar and Diamond is a leading political sociologist. Although I have not (yet) watched the discussion, readers said that it helped them process the federal government’s response to the January 6th insurrection. I know that many readers (including me) are disappointed by the response to date; apparently Feldman and Diamond put that response in a broader context. Check it out, here.

          Speaking of Jews United for Democracy and Justice, the organization hosts weekly discussions between key figures in current political events. Recent panelists include Alexander Vindman, Jennifer Rubin, Erwin Chemerinsky, Dahlia Lithwick, Al Franken, Jamie Raskin, Adam Kinzinger, and Adam Schiff. Check out the past video presentations here. I understand that Senator Manchin will be on a panel soon. The discussions hosted by JUDJ are always thoughtful and detailed—a counterweight to the soundbites and headlines of popular media. Check it out.

Concluding Thoughts.

          Among the many challenges we face, one of the most vexing is to properly assess the size, scope, and immediacy of the threats discussed in the media. Unfortunately, our news delivery paradigm is based on algorithms designed to amplify divisions, fear, and misinformation.  That model encourages “doom scrolling”, which results in a deluge of negatively reinforcing stories. If you spend hours each day reading stories about the fractured state of America, your brain will assume that the degree of divisiveness in America corresponds to the proportion of negative stories that Facebook force-feeds to you through your news feed. That is an unhealthy and unreliable way to assess reality.

          The antidote is to maintain perspective by engaging with reality. Put away every device with a screen. Interact with people—in person, if possible. Take a drive. Look at a map and marvel at how vast America is. Reflect on the fact that there are 332,863,381 people in America and compare that to the handful of anti-mask hecklers outside a school in Florida—the same handful who showed up repeatedly in stories delivered to you by NYTimes, WaPo, Politico, CNN, MSNBC, WSJ, and other outlets. Although it’s the same handful of people, the repeated stories create a distorted picture of their size and importance. They are a mere handful of people in a nation 332 million strong.

          The threats to American democracy are real, but it is a mistake to underestimate the scale, heft, and momentum of a democracy in which hundreds of millions of people want to co-exist in peace, freedom, and safety. Yes, we should worry about the threats we face, but we should simultaneously recognize the strength and stability of America. That strength and stability isn’t in your newsfeed. It’s out there—in the real world. Look for it and you will see it everywhere around you.

          Talk to you on Monday!