Today’s Edition: “Pretty much there.”

October 24, 2021

         We start this week where we left off last week—with signs of progress on Biden’s Build Back Better legislation. Biden spent the weekend meeting with Senators Manchin and Schumer to finalize details of the legislation. (NYT) Speaker Pelosi said, “We’re pretty much there” and that she was “very confident” that a deal could be reached. Surprisingly, she suggested that some version of Biden’s Clean Electricity Performance Program (“CPP”) would be included in the final version of the reconciliation bill, saying that negotiators needed to find a solution that would “not offend . . . the concern that Senator Manchin had about the CPP.” All of this is good news. A vote on the infrastructure bill is scheduled for October 30, 2021. If the reconciliation bill is ready by the end of this week, that would accomplish the original plan of voting on the reconciliation and infrastructure bills at the same time.

          If both bills pass, the negative media narrative about Biden’s presidency will turn on a dime. If the legislation passes during Biden’s first year, it will be a remarkable accomplishment. Stay tuned.

The Supreme Court expedites review of the Texas anti-abortion law.

          The DOJ has appealed the Fifth Circuit’s order that allowed the Texas anti-abortion law to remain in effect during the pendency of the DOJ’s suit challenging the law. The Supreme Court has granted expedited review of the DOJ’s appeal, setting argument for November 1, 2021. Good. That is the right course of action.

          But in granting the expedited review, the Supreme Court refused (for the second time) to issue a stay of the Texas law pending resolution of challenges to legislation designed to violate Supreme Court precedent. That is an outrage. Texas is intentionally violating the Constitution and is seeking to evade judicial review. The Supreme Court’s reactionary majority has become an accomplice in Texas’s scheme to undermine the rule of law and the authority of the Supreme Court.

          Justice Sotomayor concurred in the expedited review but dissented from the Court’s refusal to stay the case pending appeal. Justice Sotomayor’s dissent is here, U.S. v. Texas, and is worth your attention. Justice Sotomayor explained that the traditional judicial reluctance to enjoin state legislation does not apply in a case where the statute is intended to violate the Court’s binding precedent. Sotomayor wrote:

          By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended. Whatever equities favor caution in staying a state law under normal circumstances cannot outweigh the total and intentional denial of a constitutional right to women while this Court considers the serious questions presented.

          Under such unique circumstances, the equities plainly favor administrative relief while this Court sorts out these issues. Every day [the statute] remains in effect is a day in which such tactics are rewarded. And every day the scheme succeeds increases the likelihood that it will be adapted to attack other federal constitutional rights.

          As Justice Sotomayor writes, the Court’s reactionary majority has “rewarded” Texas’s bad-faith attempt to undermine the rule of law. The Court’s action will only encourage more direct challenges to its binding precedent, thereby eroding the legitimacy and authority of the Court.

          The Court will likely issue an opinion in 2021, meaning that the deceptions and evasions of Trump’s appointees during their confirmation hearings will be revealed for all to see. It is difficult to imagine an outcome in U.S. v. Texas that does not betray the Court’s intent to overrule Roe v. Wade—a revelation that should motivate Democrats, Independents, and some Republicans to use the ballot box to express their disapproval of the GOP’s decades-long effort to over Roe.

Can Republican legislatures “override the will of the people” by ignoring the popular vote and substitute their own slate of electors?

          In last Friday's newsletter, I reviewed Article II Constitution (and related state statutes) in an effort to address the widespread belief that state legislatures have granted themselves the right to override the results of the popular vote in a presidential election. In Friday’s discussion, I noted that:

• Article II says that state legislatures shall “direct the manner” of appointing electors;

• All fifty states have enacted legislation to provide that electors shall be chosen by popular vote;

• No state repealed its statute for choosing electors by popular vote after the 2020 election.

          The following question remains: Notwithstanding statues directing the use of the popular vote to choose electors, has any state passed a law saying that its legislature has the right to appoint an alternate set of electors—thereby “overriding the will of the people.” The answer to that question is, “No.”

          Despite the fact that no state has passed a law allowing a legislature to substitute its own slate of electors in place of that selected by the popular vote, many people believe otherwise. Indeed, in response to Friday’s newsletter, a reader sent a note saying that my explanation of the Constitution was unpersuasive. She wrote,

          States have passed new laws allowing the Legislature to appoint electors giving themselves the right to ignore the outcome of the election.  I believe this is in the Georgia bill, among others.

          The reader is incorrect. Georgia has not passed a law allowing the legislature to appoint a different set of electors than that chosen in the popular vote. (The Georgia law is here (SB 202); read the statute for yourself if you don’t believe me.) Other readers stated their (erroneous) belief that Texas and Arizona legislatures have given themselves the right to “switch electors.” The Brennan Center for Justice is tracking changes to voting laws since the 2020 election. The tracker is here: Voting Laws Roundup: October 2021 | Brennan Center for Justice. The tracker reveals that no state has passed a law that purports to give its legislature the right to substitute a different slate of electors from that selected by popular vote.

          Here’s my point: There are many threats to the 2022 and 2024 elections, but we must be accurate about what those threats are—so that we can fight the actual threats rather than imagined threats. If some organization tries to scare you into giving it money by misrepresenting what changes Republican legislatures have enacted, you should consider whether that organization deserves your support.

          There is one more piece to this discussion, which I will reserve for tomorrow’s newsletter. Here’s the spoiler: Despite the explicit provisions of the 12th Amendment and existing state statutes providing for the use of popular vote to choose electors, some Republicans believe that legislatures can “do whatever they want” in choosing electors. Those Republicans include Trump’s discredited attorneys Rudy Giuliani, Sidney Powell, and John Eastman. We will examine those claims tomorrow.

Concluding Thoughts.

          A report in Rolling Stone says that organizers of the January 6th protests and rallies met dozens of times with members of Congress and the White House. Two of those organizers are apparently cooperating with the January 6th committee. They claim that Trump dangled the prospect of “blanket pardons” for their assistance in organizing the rallies. To be clear, the cooperators are not saying that members of Congress or the Trump administration helped plan the assault on the Capitol—though the reference to “blanket pardons” suggests that some of the organizers understood their activities might violate the law.

          If true, we should expect that the Committee will produce a report detailing efforts by representatives Louie Gohmert, Marjorie Taylor Green, Paul Gosar, and Lauren Boebert and White House Chief of Staff Mark Meadows. The report in Rolling Stone raises serious questions about the participation of members of Congress in efforts to subvert the Constitution through violence. If true, we need more than a congressional investigation and a damning report. We need criminal investigations and prosecutions, where appropriate—ASAP. If you have an opportunity to interact with members of Congress who represent you, ask what they are doing to pressure the administration to prosecute the leaders of the insurrection. Time is of the essence. The elections of 2022 are hard upon us, and we need the deterrent effect of criminal prosecutions to dissuade similar attempts in the future.

Talk to you tomorrow!