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Well, We Went 4-for-5
On Tuesday, we had an item where we listed the five major questions left for this Supreme Court term:
- Is Affirmative Action legal?
- Was it OK for the Biden administration to cancel a bunch of student debt?
- Can a Christian website designer be forced to design a wedding website for a gay couple?
- Does the USPS have to give Christian employees the day off on Sundays?
- Do state legislatures have unlimited power over elections, up to and including the right to simply ignore the courts?
We guessed that the answer to each would be "No," which would have meant that conservatives got what they wanted in three cases (the first three) and not in the other two. In fact, it was "no" three times, "yes" one time, and "maybe" one time, with the result that conservatives got wins in three, and possibly four, cases.
The one conservative loss, which was easy to predict, was #5, the case involving the Independent State Legislature Theory. It was rather unlikely the Supreme Court was going to issue a ruling that, among other things, would have taken away a lot of power from the Supreme Court. Our writeup of that one is here.
Meanwhile, the easiest conservative win to predict was #1, the affirmative action cases. Chief Justice John Roberts, in particular, has made it his mission to create a post-racial legal world, regardless of the facts on the ground. He's so devoted to that cause, one wonders if he's coping with some sort of deep-seated anxiety, like maybe that someone he knows very, very well owes at least part of their success to having been born with a favorable racial and economic profile. Anyhow, our writeup of those two decisions is here.
The case where our guess was off, meanwhile, was #4 on the list above. In that one, a USPS employee named Gerald Groff said that he should not be forced to work on Sundays because he is a Christian. Before Thursday, the standard set by the Supreme Court was that if accommodating a person's religious needs imposes anything more than a de minimis burden on an employer, then the employer could tell that employee to... well, go to hell, in a manner of speaking.
As of Thursday, the standard is that the employer can only reject the request for accommodations if the burden is "substantial in the context of an employer's business." SCOTUS then remanded the case back to the lower courts, where Groff says he is confident he will prevail and the USPS says it is confident that IT will prevail. So, at the moment, the answer to the question of "Does the USPS have to give Christian employees the day off on Sundays?" is... maybe. The vote was 9-0, so it would seem that the old standard looked to be unreasonable from all vantage points.
The guess we were least certain about, but where we ultimately proved correct, was #2, the student loans case. The six conservatives on the court aren't big fans of "helping hands," particularly for anyone who completed their education after the year 1990 or so. On the other hand, there were two problems with the case brought by the plaintiffs. The first was that their argument for standing was dubious; it's really hard to find a person or entity that is damaged when the government forgives some loan debt. The second was that Congress pretty clearly included broad discretionary powers in the law Joe Biden used to justify forgiveness (the COVID-inspired HEROES Act). Since Congress has the power of the purse, there's a pretty strong argument that the loan forgiveness is a political question and is not justiciable.
Ultimately, by a vote of—wait for it—6 to 3, the Supremes waved off these rather significant issues, and decreed that the student loan cancellation was, well, canceled. Chief Justice John Roberts, writing for the majority, decided that because Missouri services its own student loans, and would lose some money as a result of the forgiveness, that is standing enough. "With Article III satisfied," he concludes in that portion, "the Court need not consider the States' other standing arguments." That's good for them, since the other states' case for standing was even weaker than Missouri's. As to the other problem with the case, Roberts and his five friends decided that when Congress said that the Secretary of Education could "waive or modify" student loans under the terms of the HEROES Act, that wasn't specific enough.
As with so many other recent SCOTUS decisions, this is not the end, not by a long shot. The Biden administration foresaw yesterday's result, and has already been planning for student loan forgiveness by other means. Specifically, the Higher Education Act of 1965 contains verbiage that should allow for some amount of forgiveness, although the process is long and complex and requires things like public hearings and fact-finding sessions. As chance would have it, that means that the process would extend into next year, and that whether or not the forgiveness actually happens would depend on whether or not a Democrat holds the White House in next year's elections. That fact might be pointed out once or twice to students and recent graduates during next year's campaign.
And finally, there is #3, the Christian website designer who doesn't want to design websites for LGBTQ couples. It should be noted, at the outset, that regardless of one's views about the underlying issues, the actual suit was a mockery of the legal process. By all indications, the designer, Lorie Smith, wasn't actually asked to create a website for an LGBTQ couple, and so she didn't actually have standing to sue. There are vague references in the filing to a man named "Stewart," but when he was tracked down by reporters, he said he never asked Smith for a site. He also observed—and this just might be relevant—that he is not gay, and that he's been married to a woman for the last 15 years.
On top of that, Smith did not actually instigate the suit. It was brought by the Alliance Defending Freedom, a right-wing activist group that recruits plaintiffs for its various legal efforts. Kristen Waggoner, who basically is the Alliance Defending Freedom, insists that the request for the site was legitimate, though she cannot prove it because it was submitted online. She also admits it might have been a troll. Strangely, that troll knew the exact right address and phone number for "Stewart," who, once again, is straight and, as someone who just celebrated his 15th anniversary, has no need for a wedding website.
The upshot is that the Supremes should have kicked the case until it was clear there was a real issue before them. But they did not, and so, by a vote of—you guessed it—6 to 3, they found for Smith. The Alliance Defending Freedom, which again is basically a one-woman operation, is hailing this as a "Landmark Victory for Free Speech," and has helpfully provided a big link on its site where you can donate to their efforts in advance of a "critical June 30 deadline." Exactly why that deadline is critical is not explained.
Of the five big decisions this week, our sense is that this one is the least consequential. Obviously, we do not approve of people who feel the need to discriminate, regardless of their justification. However, if a person really and truly doesn't want to make your cake or your website, you probably don't want them doing the job anyhow. Especially Lorie Smith, whose sites just scream: "I finally finished reading Web Design for Dummies last week!" Further, while the six conservatives on the Supreme Court don't care all that much about LGBTQ equality, they didn't want to open the doors to legalizing other forms of discrimination. So, they made a point in their ruling that Smith is only allowed to discriminate because her work product is "expressive." It's certainly possible that unpleasant people could seize on that and run with it—after all, burning a cross is also "expressive." But our guess is that the practical impact of the decision will be fairly limited. That said, see here, here, here and here for pieces from folks who disagree.
And that brings an end to the current term of the Supreme Court. It is fortunate that the justices did not give their blessing to the utterly undemocratic Independent State Legislature Theory, and it's nice that they decided that Black people should be represented fairly in the House delegations of Alabama and Louisiana. However, it's still a Court dominated by conservatives, and conservatives who are willing to put their desired ends first, with calling balls and strikes a fairly distant second. Reasonable people can disagree on the Affirmative Action case, and on the USPS case, but there was simply no excuse for allowing the student loan case or the Christian website case to proceed. Both made a mockery, in different ways, of the notion of "standing," and therefore of the Court itself. (Z)
Saturday Q&A
The Supreme Court was definitely the story of the week.
Current Events
J.R. in San Francisco, CA, asks: Clarence Thomas gripes that he was mocked for having been admitted to Yale Law School because of Affirmative Action. Well, was he? Are there records of his and others' LSAT scores and college transcripts?
It should be readily clear whether Affirmative Action gave him the boost that he now finds unconstitutional.(V) & (Z) answer: It is not easy to prove something like that objectively, as you propose. Even if you had perfect information (i.e., Thomas' application and transcripts, along with the applications of every person he was up against), there is a fair bit of art in admissions decisions.
That said, Abraham S. Goldstein, who was dean of Yale Law during Thomas' entire time there, strongly suggested that Thomas was admitted due to Affirmative Action: "We did adopt an affirmative action program and it was pretty clearly stated." And Thomas himself has made statements that affirm this conclusion, such as telling The Washington Post, for an article about his time in law school: "You had to prove yourself every day because the presumption was that you were dumb and didn't deserve to be there on merit."
J.C. in Ulaanbaatar, Mongolia, asks: I was confused by some things I've seen written elsewhere and also by you, referring to "only so many spots" available at universities. I thought quotas were long ago outlawed in the U.S., but Affirmative Action was something different—before this week you could consider race but not have a quota. Could you explain what I am not understanding?
(V) & (Z) answer: You're right that quotas are generally not used anymore. However, any particular university, with very rare exceptions, only has the resources to serve a certain number of students. Harvard, for example, has decided it is able to teach roughly 1,750 undergraduates in each graduating class. Every one of those seats that goes to someone who benefited from Affirmative Action takes a seat from someone who otherwise would have been admitted. So college admission is definitely a zero-sum game.
M.v.E. in Kitchener, ON, Canada, asks: Is gutting affirmative action likely to be a net positive for Democrats' chances of winning various levels of the 2024 election? Put together with other conservative "victories" at SCOTUS, are these likely to be pyrrhic victories?
(V) & (Z) answer: We will see how things unfold next year, but we would guess that you won't hear too many Democrats talking about Affirmative Action. The problem is that, even with many Democratic voters, AA isn't too popular. Recall, for example, that even liberal California banned it in 1996.
On the other hand, the general argument that the conservative-dominated Supreme Court is out of control, and that it's essential to keep a Democrat in the White House, in case the seats of the 75-year-old Clarence Thomas, the 73-year-old Samuel Alito, and/or the 68-year-old-and-prone-to-seizures John Roberts happen to come open? We think you'll definitely hear some of that.
There is another thing Democrats might bring up, but they have to be really, really careful about it. They could point out that if the people who voted for Jill Stein in 2016 had voted for Hillary Clinton instead, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett would not be on the Supreme Court now and none of this week's decisions would have gone the way they did. The point would be to encourage Stein's supporters to vote for Joe Biden even though Biden is not perfect in their eyes. In other words, sometimes you are better off going with the lesser of two evils. But the point has to be made gently and with great care to avoid explicitly saying: "This is all your fault."
D.I. in Waterloo, ON, Canada, asks: Help me understand who had standing in the court cases about student loans and the website designer. No harm had yet been done to the designer and I can't begin to understand who has been harmed by the loan forgiveness.
(V) & (Z) answer: As we note above, the argument for standing in those two cases was so thin as to be an embarrassment. The time will come when legal scholars have an absolute field day tearing apart the jurisprudence of the Roberts Court.
Z.C. in Beverly Hills, CA, asks: Given that the SCOTUS ruling in gay marriage websites was basically manufactured by a fake website company and a fake gay couple, I'm wondering what shenanigans this opens the door for going forward. Any ideas for a fake company and fake situation I can make that could result in the Supreme Court forcing billionaires to pay their fair share of taxes or take AK-47s off the street?
(V) & (Z) answer: It would be very easy to create standing for a whole host of issues, given the apparently lax definition of "standing" that prevails on the Court these days. For example, as an American citizen, you could argue you should not be placed at risk of being under the leadership of someone who fomented insurrection on 1/6, consistent with the terms of the Fourteenth Amendment. It's true that Donald Trump hasn't been elected president a second time, as yet, but it's also true that Lorie Smith never had to design a gay website, and that Missouri had yet to suffer financial consequences from student loan forgiveness. In both cases, the alleged damage was theoretical and was in the future.
The only small problem here is that you have to be granted certiorari to appear before the Court, and that means that four justices have to be interested in hearing your case. There are a lot of things where we suspect you could get three, but not four.
J.G. in El Cerrito, CA, asks: Can you highlight the differences between this week's Supreme Court decision involving a Colorado graphic designer who refused to design a website for gay couples because of their religious beliefs, and the case a few years back about a Colorado baker who refused to make a wedding cake for a gay couple because of their religious beliefs? The cases seem quite similar.
(V) & (Z) answer: The cases are quite similar, and both were brought in response to a Colorado law that prohibits discrimination, including on the basis of sexual orientation. However, the cake case was "resolved" on very narrow grounds, namely that Colorado had not followed the correct procedures in its implementation of its own law. So, that case did not set any new precedents. By contrast, this week's case redefined, to some extent, the types of discrimination that are legal in the United States.
O.Z.H. in Dubai, UAE, asks: How is it that SCOTUS can dictate admissions policy to a private college? My understanding was that all-women colleges like Smith could be all-women (discriminating against men) because they were private institutions. If this is not the case, how do such schools stay all-female?
(V) & (Z) answer: The Civil Rights Act of 1964 (and other subsequent legislation) prohibits discrimination in public accommodations, absent a compelling basis for the discrimination. This applies not only to the government, but to private entities as well. All-female universities are still OK, because there's a historical tradition and because some attendees feel safer in that context. Similarly, LDS Churches can keep non-adherents out of their temples, a director staging a revival of A Raisin in the Sun can consider only Black performers, and a crop-dusting business can declare that it only hires Air Force veterans because, in all cases, there is some compelling basis for the discrimination.
S.G. in Los Angeles, CA asks: What are the roadblocks keeping Joe Biden from expanding the Supreme Court? Is this something that could be done?
(V) & (Z) answer: There are people all over social media, and other websites, right now claiming that if Biden wanted to, he could expand the Supreme Court by fiat. This is simply not true. If it were, then wouldn't Donald Trump have appointed 50 Brett Kavanaughs?
There is exactly one way to add new seats to the Supreme Court, and that is for Congress to pass, and the president to sign, an update to the Judiciary Act of 1863. Congress set the number of seats at nine in that legislation, and until it passes a new law, then there will only be nine seats. With a Democrat in the White House, there is no way an updated Judiciary Act gets through the Republican-controlled House or gets past the filibuster Senate Republicans would mount.
D.W. in Fremont, CA, asks: Is it possible that the leader of the Wagner Group, Yevgeny Prigozhin, decided to stop the march to Moscow because the regular Russian armed forces did not join in his cause? The group was attacked by Russian military helicopters, and at least one warplane. They ended up shooting down several Russian armed forces aerial attack helicopters, killing pilots and others on board. Without the support of the Russian armed forces, they could have ended up in a bloody battle before reaching Moscow. The group found a lot of support in Rostov, but it did not seem to extend further into the country as they headed towards the capitol. Is this lack of support from the military a possible reason for the end of the march?
(V) & (Z) answer: We are not experts in this subject, but our guess is that the problem was not so much a lack of rank-and-file support, and more a lack of high-level support. Recall that, at 62 years of age, Prigozhin remembers well the time in 1991 when the tide turned against Mikhail Gorbachev, and the guy who seized the moment (Boris Yeltsin) became the new leader. The now-former Wagner group leader appears to have guessed that a tipping point had been reached, and that Russian generals and high-ranking civilian insiders were ready to overthrow Vladimir Putin. If Prigozhin had been right, he'd be the leader of Russia right now. But he wasn't right, as he learned once he tried to leave Rostov.
J.W. in Aston, PA, asks: Something about the Russian insurrection seems staged. Do you smell a rat here? Could the sole purpose of this act have been to position the Wagner group in Belarus, right next to Kyiv, with Putin and Prigozhin were in cahoots all along? I don't see this as a coincidence, yet all the media talk (including your own) is focused on how weak Putin is, that they wanted to avoid bloodshed, etc. Am I the only one who sees a different intention? What am I missing?
(V) & (Z) answer: We doubt this was staged. Putin is very image-conscious, and very interested in projecting "strength." That is very important for someone who wants to be the leader of Russia. We just cannot see someone like him implementing a scheme that resulted in the whole world talking about how weak he is these days.
J.C. in Lockport, IL, asks: Why on earth would Donald Trump agree to have any of his phone calls recorded, not to mention calls where he admits to having classified materials he shouldn't have?
(V) & (Z) answer: First, the Bedminster recording was made by someone who was working on a book about the Trump presidency (specifically, about former chief of staff Mark Meadows). Trump is often recorded for things like that. Second, one of us (Z) delivers lectures that are all recorded. And (Z) can assure you that, as you talk, you very quickly forget that there's a tape recorder running. Note that Richard Nixon had this same problem, to his eternal detriment.
Politics
D.K. in Iowa City, IA, asks: You make a good argument for Joe Biden in "Why the Democrats Need Joe Biden," but I still think his age is a serious problem. I am 80 and I would not run for any political office. My question is: Why is there no good alternative to Biden? There are many good Democratic senators and governors but none of them have enough recognition to be considered an alternative to Biden now. Is this a failure of the Democratic Party? Or just bad luck?
(V) & (Z) answer: It's neither of those things, we would say. Our point, in that piece, was that by virtue of his age and long political career, Biden has one foot in the old political alignment and one foot in the new political alignment. That's what it takes to win elections as a Democrat at the moment. Barack Obama managed to pull it off, too, but he is a generational talent.
We very consciously compared Biden to Sen. Joe Manchin (D-WV) in that piece because it's a similar dynamic. Manchin is a leftover (a relic?) of the days when West Virginia was run by socially conservative, economically moderate Democratic populists, including his uncle James Manchin. Voters who are otherwise Republican still trust him, despite the (D) next to his name. No 40-year-old Democrat, no matter how centrist their politics, could hope to replicate that, which is why Manchin will be the last Democratic U.S. Senator from West Virginia for a long time, once he's done.
There will be a time when a "new school" Democrat, like Gov. Gavin Newsom (D-CA), will be a good bet to win nationwide. And it's also possible there's a Democrat out there right now, like Gov. Gretchen Whitmer (D-MI), who could hold together the Obama-Biden coalition. But betting on either of those possibilities in 2024 would be much riskier for the blue team, since they have a guy who's already proven he can win.
M.C. in Glasgow, Scotland, UK, asks: Ron DeSantis is a smart, experienced politician with a lot of money and advisors backing his primary campaign. At a political event like a town hall meeting, taking an hour to even mention the audience's local region seems inexplicably inept, regardless of one's charisma. Is DeSantis ignoring advice, hiring fools who have connections rather than merit, or what?
(V) & (Z) answer: DeSantis is doing what has worked for him, to the point that he rose from private citizen to governor of a large state and leading contender for the presidency in the span of about a decade. He generally seems like someone who is both very stubborn and is lacking imagination, and so it's no surprise that he's unable or unwilling to course correct.
There's a pretty obvious parallel here, we think, in the very DeSantis-like Richard Nixon. From 1946 to 1960, Nixon had enormous success with red baiting. It failed him big-time in 1960, and then again in 1962, at which point the former VP finally figured out he needed to make a change, and so reinvented himself as the man who could bridge the gap between democracy and communism.
DeSantis has not suffered the kind of failures Nixon did, as yet, and he also doesn't seem to be quite as shrewd as Nixon was. So, while the Governor might change his approach at some point during this campaign, our guess is that it's more likely you'll see a "new DeSantis" in 2028.
B.W.S. in Pleasant Valley, NY, asks: Who paid Hugh Hewitt to land that cheap shot on Mayor Francis Suarez? Okay, somewhat facetious question. Permit me to rephrase: While the Only Mayor Miami Has clearly gave the wrong answer about Uyghurs, it's equally clear that the question was calculated to make him bomb it. Unless Uyghurs make up a measurable percentage of his city's population—which, I'll allow, it might; I haven't seen recent demographics data—there was virtually no chance he would have been able to answer meaningfully. Put plainly, he was set up.
There's no point in asking why Suarez got that question; the goal was obviously to show viewers that he isn't ready for prime time, and he cheerfully obliged. I'm much more interested in who—as in, which rival candidate would stand most to benefit from Suarez's campaign tanking in a heartbeat? And, is it possible that Hewitt is toting that candidate's water? Could said person even have fed him the question?(V) & (Z) answer: We do not think Hewitt is in the bag for some other candidate. If you watch the interview (the relevant portion begins at the 10:00 mark), the host sets up Suarez with something of a softball question about how awful Joe Biden's China policy has been. After allowing the Mayor to prattle on for about a minute, Hewitt asked the follow-up about the Uyghurs. It looks to us like that was meant to be another softball, and an opportunity to rail against Biden for failing to bring a stop to the crimes against humanity being perpetrated by the Chinese government.
It is true that Suarez was caught by surprise, but the fact is that far more people have seen "Uyghurs" in print as opposed to having heard it pronounced. On top of that, Hewitt's pronunciation was not quite on target, and sounded like a borderline racial slur. It sure sounded like Suarez heard what sounded like a slur, was thrown off his game, and things went off the rails from there.
That said, if you believe Hewitt was trying to help someone, then the candidate that makes the most sense is Nikki Haley. She and Suarez are sort of in competition to be VP on a DeSantis ticket, and part of her pitch is that she knows foreign affairs better than the other GOP candidates by virtue of her time as U.N. ambassador. Plus, Hewitt really likes Haley.
T.C. in Charlotte, NC, asks: You wrote that it is unlikely that an independent will run a campaign that will influence the outcome of the 2024 presidential election. But if Chris Christie really wants to take Donald Trump down, isn't he the perfect person to switch his party loyalty to "unaffiliated"? He would certainly take votes from moderate Republicans and could remain in the race until election night, bashing Donald Trump (and Joe Biden) the whole time. This is a dream scenario for Democrats, but would Christie consider it?
(V) & (Z) answer: We do not think that this is a dream scenario for Democrats. Who is more likely to vote for Christie—a normal Republican or a Trumpy Republican? Surely the former, right? That's also the type of Republican more likely to hold their nose and vote for Biden. So, if Christie runs as an independent, he is surely more likely to take votes from Biden than from Trump. We suspect that Christie knows this intuitively, and that he also has polling to back it up.
P.R. in Saco, ME, asks: Given that Jack Smith is mindful of the election cycle, is it too far a stretch to hypothesize that he may accept delays on Donald Trump's trial under the assumption that a Trump-Biden matchup is best for the country, since that's Biden's best chance of winning re-election?
(V) & (Z) answer: We don't believe for a second that Smith is thinking that way. It is his responsibility to think about how the election cycle could affect his case, in particular the general Department of Justice guideline imposing a moratorium in the 90 days before an election. But it is neither his job, nor is it apropos, for him to think about how his case could be used to affect the election cycle. If there was the slightest indication that he was trying to help Joe Biden get elected, Smith should be immediately terminated from his position.
D.K. in Miami, FL, asks: Will Sen. Jon Tester (D-MT) and the Democrats ratf**k in Montana in order to promote Matt Rosendale (R), similar to how it went down in places like New Hampshire during the 2022 Republican primary season? Always a fun read when you guys write about that stuff... until it ultimately backfires.
(V) & (Z) answer: The Democrats are willing to do it, they've already done it with success, and they did it in elections with relatively lower stakes than one that could determine control of the Senate. We cannot imagine a situation in which they don't do some serious ratf**king in Montana. Montana has open primaries, so Democrats can vote in the Republican primary. We imagine the Montana Democratic Party, which presumably has some mailing lists of state Democrats, will encourage them to vote in the GOP primary.
B.S. in Miami, FL, asks: The Republicans used to be the "law and order" party. Obviously, no more. They now hate the FBI, the DoJ, and anyone that indicts or prosecutes a crime (particularly Republicans who commit crimes). Why shouldn't the Democrats adopt the "law and order" mantra? Is it because of a fear of aliening the far-left and the children of the 60s who hated "law and order"? My gut tells me it will be effective. Older voters (ex-children of the 60s), who seem to be moving slowly to Biden, would like it. What do you say?
(V) & (Z) answer: As many readers pointed out last week, "law and order" was often a dog whistle for "keep non-white people under control." The Democrats would not be able to embrace a law-and-order plank without risking the alienation of millions of Black and brown voters.
T.M. in Downers Grove, IL, asks: Could you explain the current proposal in California to pay reparations to Black Americans? What is the resident Californian's opinion of the proposal? Does this not just feed the far-right's feelings of resentment?
(V) & (Z) answer: To start with your last question, Democrats cannot spend their time worrying about what will upset right-wingers. First, that gives too much power to the opposition. Second, the right-wingers are always going to find things to be upset about, especially these days.
As to the reparations, it's not exactly a proposal, it's a lengthy list of recommendations made by a blue-ribbon panel. They had every motivation to shoot for the moon, because they wanted to make a very loud statement about the racist underpinnings of California and American history, and of today's economy and society. However, to implement all of their recommendations would cost an estimated $800 billion, and in a state where the entire annual budget is about $300 billion. And that's before we consider sorting out who does, and does not qualify for reparations, not to mention the question of "Once these payments have been made, is that it? Is the ledger square?"
In short, very little of what the panel recommended is actually going to come to pass, because it's unrealistic. Gavin Newsom and the legislature will probably be motivated to invest a bit more money in, say, scholarships for Black students, but it will be a drop in the bucket compared to $800 billion. And while investment in historically disadvantaged communities is a good thing, there are also a lot of people of color in California who are going to have their hopes raised based on the notion that they're going to be getting a check for five or six figures. When those hopes are dashed, it's going to be shades of "40 acres and a mule." (Z) is just not certain, one way or the other, whether the emotional toll involved therein is a fair tradeoff for the panel making a statement about racism and the government doing a little bit more investment in communities of color.
Civics
F.I. from Philadelphia, PA, asks: Looking forward to Trump's probable future criminal convictions, is there anything that prevents a liberal state from passing an election law denying convicted felons from appearing on a ballot? Convicted felons cannot vote in many states, so is a felon appearing on a ballot any different?
(V) & (Z) answer: Yes, it is different. When it comes to voting, the Constitution is framed in terms of limits on the power of individual states. The states cannot deny the vote on the basis of gender, race, failure to pay a poll tax, or due to age as long as a person has reached adulthood. However, beyond those limits, the states can largely do that they want when it comes to restricting the vote, if they have a reasonable basis for the restriction. Taking the vote from people with criminal convictions has been deemed to clear that bar.
When it comes to qualifications for elective office, the Constitution frames things a little differently, laying out minimum qualifications for office, and... that's about it. As long as a person is 35, a natural born citizen, has lived in the U.S. for 14 years, did not foment insurrection against the U.S., and has not already served 6+ years as president, they are eligible. States are not given explicit power to otherwise regulate that, at least not in the text of the Constitution itself.
It is true that states have been given some power to regulate ballot access, as a practical matter, so that we don't end up with ballots that have 10,000 names on them. However, trying to exclude felons would almost certainly be deemed to be creating a new qualification for office, and that would require a constitutional amendment. If a state really is determined to exclude Trump from the ballot, we can think of two approaches that might work. First, the state AG might bring suit arguing that Trump is disqualified under the terms of the Fourteenth Amendment. Second, the Constitution does give state legislature a fair bit of power over how a state's electoral votes are awarded. It is at least possible a state could pass a law that says that its EVs cannot be awarded to a convicted felon, and in the event that a felon collects the most votes, the EVs go to the non-felon with the most votes. That might be legal.
R.P. in Pasadena, CA, asks: If a Presidential candidate was convicted and sentenced to prison by a state court, let's say for falsifying business records or racketeering, and that candidate was then elected POTUS by the Electoral College, would that state be required to release the new President from prison?
What if the trial in the state court was still ongoing on Inauguration Day? Would the state court be required to postpone the trial until after that person's presidential term?(V) & (Z) answer: Since this particular issue has never come up, there is no existing law or legal precedent that addresses the matter directly. That said, a president is not a king, and is not above the law. As a practical matter, a state surely would postpone a trial or a prison term for someone who had been elected president. But there is nothing on the books that would compel a state to do so.
R.H.D. in Webster, NY, asks: Why does Donald Trump need to have an attorney who lives in Florida to represent him in his federal case relating to the classified documents?
(V) & (Z) answer: By the terms of Florida law (and the laws of most states), you have to have an attorney admitted to the state bar for certain procedural functions. Trump's New York lawyer can do things like conduct cross examination and make opening arguments, but only a lawyer admitted to the Florida bar can legally do things like submit pleadings and other court documents.
J.H. in Boston, MA, asks: You referred to Delaware state Senator Sarah McBride (D) as the highest ranking trans elected official in the U.S. But I'm sure there've been a handful of other state legislators, several of which have been covered on E-V.com. What makes McBride higher ranking than them? Is it because she's state Senate, not the state House? I thought some of the others had been too. Or is it because she's in the leadership of her chamber?
(V) & (Z) answer: She is not in leadership, but she is the only trans state senator in U.S. history to this point. By the terms of the United States order of precedence, state senators are considered to be of (very slightly) higher rank than state representatives. They are #124 and #125 on the list, respectively, right after three-star military officers and right ahead of former ambassadors (albeit only for events held within the legislators' home state).
M.A. in Knoxville, TN, asks: You had an item about Rudy Giuliani being ordered to pay the Georgia election workers' attorney fees. I'm curious how this is handled. Do the election workers, Shaye Moss and Ruby Freeman, have to pay their attorneys and then get their money back from Giuliani later? Or are their attorneys now responsible for extracting their fees from Giuliani?
I'm hoping it's the second one, as if it's the first he could just refuse to pay up and escape the consequences of his stalling.(V) & (Z) answer: On paper, Moss and Freeman owe the money to their attorneys and Giuliani owes the money to Moss and Freeman.
In reality, however, Moss and Freeman certainly did not have the funds to pay for the kind of legal representation they have required. Their attorney(s) undoubtedly took the case on contingency, either because they are activists of some sort, or because they expected to extract money from Giuliani, or both. Similarly, if Giuliani doesn't pay up, it's going to require an attorney to compel him to do so. Instead of being paid to chase the money down on behalf of their clients, the attorneys are instead going to be chasing it down on their own behalf. This might just affect their motivation a wee bit.
History
J.S. in Pemaquid, ME, asks: I was googling around for a nonfiction book to listen to (I usually do fiction but I like to mix it up with some good nonfiction sometimes). I think I just put in "nonfiction recommendation" and what should turn up but some garbage called The South Was Right! by James and Walter Kennedy.
I'm sure it's utter trash and I'm dismayed to see that it's a bestseller and in its second edition. What's the book I should read on the emergence of the Lost Cause and/or about the non-military aspects of the Civil War and its aftermath?(V) & (Z) answer: Take a look at The Cause Lost: Myths and Realities of the Confederacy by William C. Davis, The Confederate War by Gary Gallagher, Causes Won, Lost, and Forgotten: How Hollywood and Popular Art Shape What We Know about the Civil War by Gary Gallagher, The Myth of the Lost Cause and Civil War History, edited by Alan Nolan and Gary Gallagher, and The Confederate and Neo-Confederate Reader: The Great Truth about the Lost Cause, edited by James W. Loewen and Edward H. Sebesta. These books are trying to do different things, and we are not sure how many of them are available as audiobooks (though the Gallagher/Nolan book is), but at least one of them should provide what you're looking for. Full disclosure: Gallagher was on (Z)'s dissertation committee. However, he appears three times here not for that reason, but because he's the foremost historian of the Confederacy and its memory.
J.S. in Wada, NL, asks: You wrote: "Our sense is that when people focus on Biden's age, they are largely trying to scare people that the person in the big chair could be a doddering old fool without the capacity to make important decisions."
This does not pass the smell test to me. After all, ostensibly doddering old fool Ronald Reagan was reelected by a landslide in 1984—even though the Teflon Ron notably bumbled and stumbled through his public debates, and was mostly a no show in the rest of the campaign, appearing only as a visibly remote controlled puppet in tightly controlled media snippets: "I know, I am not going to exploit for political purposes my opponent's youth and inexperience."
My point being: clearly suffering post-early stage dementia late in life? No problem, easily swept under the rug, and the faithful herds will happily blot their vote slabs where told, regardless.
So I do take the implicit threat of "and a black woman is waiting in the wings to take over!" as the real motivator more seriously. Ageism? Historically, no (Reagan). Ableism? Also, no (Reagan). A stable bond of racism and sexism? I would not dismiss it that easily.(V) & (Z) answer: First, we think you are overstating how enfeebled Reagan was in 1984. He was very good at appearing presidential, and retained that skill throughout most of his time in office. And we know now that he did not begin to decline cognitively, to the point that those around him grew concerned, until the very end of his term, and that the Alzheimer's did not hit with full force until after he'd been out of office for several years.
That said, the politics of 1984 and the politics of 2024 are very, very different, such that something that was not a liability back then is absolutely lethal today. Reagan was also OK with gun control, stem cell research and increasing taxes. Nobody on either side of the aisle can so much as whisper those things during a campaign today.
As to Biden, if his opponents really wanted to do some Kamala Harris scaremongering, there is a much better way to craft that dog whistle. They could say: "Do you really want the heartbeat of elderly man to be the only thing between Harris and the White House?" Then, the voters to whom this is addressed could read between the lines of what that means. We don't think "Biden is old!" is quite direct enough to make voters worry about Harris.
T.S. in Bettendorf, IA, asks: You often express the view that the Green Party cost Hillary Clinton the election in 2016. Has there ever been a scientific study to indicate such a lofty pronouncement? Sure, the total number of Green voters in three states exceeded the difference between Trump and Clinton, but has anybody bothered to ask Green Party voters who they preferred other than their "protest vote?" As a Green voter in 2016 myself, I very well may have voted for Clinton if I had no other choice, but associating with other Green voters I was surprised to find that was not, in fact, the common consensus.
(V) & (Z) answer: Here are some basic numbers. Trump won Michigan by 10,704 votes. Stein got 51,463 votes in Michigan. Trump won Pennsylvania by 44,292 votes. Stein got 49,941 votes in Pennsylvania. Trump won Wisconsin by 22,748 votes. Stein got 31,072 votes in Wisconsin. So if every Stein voter (and in Michigan, if a quarter of the Stein voters) had voted for Clinton, she would have won those states and the electoral college.
That said, Gary Johnson, the Libertarian candidate, was also on the ballot and got three times as many votes as Stein. If there had been ranked-choice voting and all the Stein voters had ranked Clinton second and all the Johnson voters had ranked Trump second, Trump would have won. But this not a good assumption because Stein voters probably agreed with Trump on absolutely nothing whereas Johnson voters agreed with Clinton on many issues, for example abortion ("it's none of the damn government's damn business"). So it is clear from the data that if every Stein voter had voted for Clinton and everything else was the same, Clinton would have won. But at least one study shows that there are models of ranked-choice voting in which Trump would still have won, but that depends largely on guesses about the second choice of the Johnson voters.
Gallimaufry
R.C. in Des Moines, IA, asks: Part of your answer to M.D. in San Nicolas included this: "Jon Stewart is a brilliant fellow, and would make for a very interesting CNN anchor, particularly on a show geared more toward analysis and commentary rather than straight news."
Are any of CNN's primetime shows straight news? In my view, all of CNN's prime time lineup is geared toward analysis and commentary rather than straight news. Most of the time I tune in, there is much more analysis and commentary than straight news. Even during breaking news events there is heavy reliance on analysis and commentary. I would be very grateful if CNN returned to a straight news format for the majority of prime time and left the analysis and commentary for one hour or a small part of each of the three hours. They know their business better than I, but it seems to me they are not doing well trying to play it both ways.(V) & (Z) answer: Unfortunately, straight news is not what gets the ratings. If it did, you can be well assured CNN would cashier all the talking heads. If what you really want is just the news, without any added bells and whistles, then many cable systems provide access to BBC News, Bloomberg News or Al Jazeera, which provide mostly straight news coverage.
Reader Question of the Week
Here is the question we put before readers last week:
S.D.R. in Raleigh, NC, asks: Is there a site roughly equivalent to Electoral-Vote.com, but for other countries?
We knew this would eventually happen, and now it has. We got very few responses; certainly not enough to carry this section. We have plenty of foreign readers, so we are going to flatter ourselves that this is evidence that E-V.com is unique, or close to it, and that there aren't equivalent sites.
Luckily, without necessarily planning for it, we put a couple of questions to readers this week that got plenty of answers. First up is something that we did not even word in question form, but that we will now express in that way: How do you pronounce FCINO (Freedom Caucus in Name Only)? Here are some suggestions:
R.S. in Tonawanda, NY: I suggest "Eff-see-no" as a pronunciation (sounds like a fictional town in Southern California).
K.T. in Oakdale, NY: The proper pronunciation is "fuh-chee-no." As in, Al Pacino with an "F."
K.S. in Clemson, SC: To answer your implied query, FCINO is pronounced "Freekino"—"freek" like "freak" plus "ino," which is the Italian diminutive suffix. So MTG is in danger of being degraded from a big freak to a little one. That said, once a freak...
M.F. in Los Angeles, CA: It's pronounced "fascist."
P.N. in Austin, TX: F**k (if) I know, it's a mystery to all of us.
G.B. in Kailua, HI: "F**king No." That's how.
E.W. in Skaneateles, NY: Might I suggest f**k no? As in, f**k no, Marjorie Taylor Greene's somehow not crazy enough for us.
M.D. in Boulder, CO: FCINO is obviously pronounced, "f**k if I know." As in, "Who introduced this nutty bill?" "FCINO!"
Moving along, here is something we actually did phrase in the form of a question: Why do conservatives hate the Department of Commerce? We got a lot of ideas:
C.K.W. in Haymarket, VA: I work for the Department of Commerce. I am at the US Patent and Trademark Office (USPTO). The other big offices under Commerce (meaning big enough to have their own "Undersecretary of XXX") are National Oceanic and Atmospheric Administration (NOAA), National Institute of Standards and Technology (NIST), International Trade Administration (ITA), Bureau of Industry and Security (BI&S), and Economic and Statistics Administration (E&SA). I am really not sure what all of these do. The different offices/bureaus/administrations do not interact much. Even within the USPTO, Patents and Trademarks do not interact much at all. NOAA does the hurricane stuff (and probably a lot more). NIST establishes standards of measurements (for calibrating to make sure all commercial things are using the same measurements for their units). I am sure there is a good reason for each of these organizations, but politicians like to talk without knowing the facts. If we got rid of our patent system there would be a lot of angry powerful corporations and people!
M.E. in Albuquerque, NM: Commerce is the home of the NOAA which, aside from weather forecasting: (1) regulates fisheries and enforces the Endangered Species Act for aquatic species; and (2) plays a critical role in monitoring global warming, and particularly in modeling the effects of rising sea temperatures on the circulation of ocean currents that moderates costal temperatures. Both of those activities can lead to requirements to change the current operating methods of industry, and that is something that Ron DeSantis opposes.
J.B. in Brunswick, ME: The Department of Commerce contains the woke, global-warming conspiracists at NOAA. I hear about it from my enlightened relatives all the time.
C.L. in Boulder, CO: Here in Boulder, Commerce is best known for the Department of Commerce Labs, which include NIST, NOAA and NTIA. Could the fact that DoC and the Department of Energy collect data and do much of the nation's science be why they are on DeSantis' chopping block? More specifics: The nation's civilian clock is housed at the DoC office in Boulder, and at least 4 living physics Nobel laureates are DoC employees or retirees, including David Wineland and Eric Cornell, seen in this "Abbey Road" photo. I highly recommend The Fifth Risk, by Michael Lewis, to learn more about the important, often unrecognized, work done by the federal government, especially in the Departments of Commerce, Energy and Agriculture. Interestingly, later editions of the book append a subtitle: Undoing Democracy. The DoC chapter is called "All the President's Data."
A.S. in Natick, MA: The Census Bureau reports to the Department of Commerce. What better way to take control of the census, who gets counted, and apportioning representation, than to eliminate the Commerce Department?
K.S. in Phoenix, AZ: I found this Heritage Foundation report about the Department of Commerce. It looks like NOAA wanting to deal with climate change, helping minority owned businesses, supporting PBS, and waste/duplication of effort are the main issues that stand out.
J.E. in San Jose, CA: My guess is the perception of the Department of Commerce is that it "regulates commerce." And if you recall, any kind of government regulation is bad.
A.B. in Huntington, VT: My guess is that the Commerce Department is responsible for collecting data, and data is anathema to conservatives since all that you need to know is in the Bible.
Here is the question for next week:
N.S. in Los Angeles, CA asks: What historical cases are there where the people and groups fighting to ban books, works of art, films, musical compositions, etc. ended up being on the "right side of history"?
Submit your answers here!
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