Here’s what should worry you about midterm voting

 

Here’s what should worry you about midterm voting

 

By Jennifer Rubin

Columnist|

October 31, 2022 at 7:45 a.m. EDT

 

Voting advocates and lawyers are raising five categories of concerns in the runup to the midterms, from fears of rising voter intimidation to anxiety that election deniers will spark violence to worries that spurious litigation will prevent timely certification of results.

 

First, and perhaps most troubling, the nearly 300 GOP election deniers/liars on the ballot are likely to whip up anger about a “rigged” system or “stolen election,” priming aggrieved supporters for violence. Many high-profile Republicans have refused to pledge to respect the results. Given Republicans’ embrace of the “big lie” in 2020, we should prepare for a plethora of baseless accusations, some of which could incite unstable individuals.

 

And because these candidates are so fixated on the voting fraud narrative, some might continue to denigrate the system even if they win (as Donald Trump did in 2016), claiming they were cheated out of even bigger victories. Democratic election lawyer Marc Elias tells me, “There’s no way for them to get off the election denial treadmill.”

 

Likewise, David Becker, founder of the nonpartisan Center for Election Innovation and Research, tells me, “I am concerned about what happens after 8 p.m. on election night, when it’s clear that some losing candidates are preparing to delegitimize a process that was secure and understood, and make claims that may be intended to spark anger and violence.” He expects “false claims that votes should be counted on election night, though we’ve never done that, and it has always appropriately taken days or even weeks to count all the ballots.” He adds, “These claims could lead to some volatile situations in some states, and potentially political violence.”

 

If one had any doubt about the incendiary atmosphere, consider the crazed individual who broke into House Speaker Nancy Pelosi’s house, assaulted her husband and vowed to wait for Pelosi (“Where is Nancy?”), all too reminiscent of the Jan. 6, 2021, Capitol rioters. This was almost certainly an assassination attempt, the culmination of years of misogynistic demonization of the person second in line to the presidency and routine use of violent images and rhetoric. When Republicans such as Virginia Gov. Glenn Youngkin turn the assault into a punchline or House Minority Leader Kevin McCarthy (Calif.) remains silent, they normalize violence.

 

Second, voter intimidation remains a real factor. In Arizona, U.S. District Judge Michael Liburdi rejected a complaint against Clean Elections USA for gathering near drop boxes in Maricopa County and following voters and taking photos and videos of them. He likewise refused to bar groups related to the Oath Keepers, a far-right militia, from doing similar things in Arizona’s Yavapai County. An emergency appeal is pending with the U.S. Court of Appeals for the 9th Circuit. (Briefing will take place over the next day or so, but voting rights advocates are confident the 9th Circuit will reverse.)

 

Likewise in Florida, Republican Gov. Ron DeSantis’s administration carried out dramatic arrests of mostly Black residents, an unmistakable message to voters who might be uncertain as to whether they can legally vote. (The Post reported, “Those arrested — most of whom are Black — are all accused of violating a state law prohibiting those convicted of murder or felony sexual offenses from voting after completing their sentences. The arrests … raised questions about whether DeSantis and his election police unit were weaponizing their new powers to gain political advantage.”) Even if these voters are exonerated, Republicans’ actions could chill turnout — the essence of voter suppression.

 

Third, the MAGA disinformation machine will be as active as ever. Twitter is in the hands of Elon Musk, whose willingness to take down posts that intimidate or mislead voters is under serious question. When media outlets say the truth of a specious claim is “unknown,” or that a complaint about fraud is “so far unsupported,” they grant election deniers a bogus aura of credibility. Responsible outlets should remind viewers that an election reversal based on recounts of statewide races is exceedingly rare when hundreds of votes separated the candidates, let alone when the gap is in the thousands. (One survey of 5,778 statewide races between 2000 and 2019 found only three reversals.)

 

Fourth, Republicans have intentionally injected uncertainty and delay into the system. Demanding vote counting by hand (as Republicans did in Nye County, Nev., until the state Supreme Court stepped in) or refusing to allow election officials to open and count hundreds of thousands of absentee ballots in advance of Nov. 8 (as Republicans did in Pennsylvania) are just two ways to stave off a sense of finality. The longer the process goes on and the more baseless complaints emerge, the greater the risk of delegitimizing the election — precisely the aim.

 

In demanding hand recounts and wanting to shut down secure drop boxes, Republicans are in fact making voting less secure and reliable. It’s almost as if the last thing Republicans want is objective, verifiable and sound results.

 

Finally, Republicans have already weaponized the legal system. Former Trump phony-elector plotter John Eastman and others, as well as MAGA cohorts such as Cleta Mitchell, have been recruiting and training partisans to gin up challenges at the polls. Meanwhile, dozens of lawsuits trying to restrict voting (e.g., disallow drop boxes) have been filed.

 

In response, advocates of voting rights are forced to play whack-a-mole. As Elias points out, “In Georgia, these laws have enabled activists to file mass challenges, attempting to strip the rights of tens of thousands of citizens to vote.” Elias tells me the most recent batch of challenges are demands (filed barely a week before the election) to hire more Republicans for election boards in Michigan and elsewhere.

The attempt to “flood the zone” with challenges gives the GOP the opportunity to throw everything at the wall and see what disqualifications can stick. By selectively challenging ballots in areas with high numbers of minority or college student voters, Republicans aim to game the system.

 

In short, we face an array of threats to the integrity of our democratic system and the public’s trust in elections. Responsible politicians can prevent further damage to democracy if they denounce specious claims of fraud and any incitement to violent action.

 

In 2020, Republicans worked to discredit the election starting months before the vote, then litigated, then focused the pent-up rage into violence on Jan. 6, 2021. Elias says he fears a similar pattern this year. The mainstream media can resist the temptation to fan disinformation. And prosecutors, law enforcement and judges must strive to ensure that every legal vote is counted correctly.

 

That sort of all-hands-on-deck effort is how we preserve democracy for at least one more election cycle.

 

 

A TRUMP STOOGE HELPED MAKE JAN 6th INSURRECTION POSSIBLE - THEY PLANNED IT ALL

 

Mr. Christopher C. Miller served as the Acting Secretary of Defense, from Nov. 9, 2020, until Jan. 20, 2021. 

After Trump lost the election.

 

Think Affirmative Action Is Dead? Think Again.

Oct. 26, 2022

 

Top of Form

Bottom of Form

By Justin Driver

Mr. Driver is a professor at Yale Law School, and the author of‌ ‌“The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.”

On Oct. 31, only hours before millions of children get dressed up for trick-or-treating, nine Supreme Court justices will don their robes to hear oral arguments about the future of affirmative action. The dominant, almost universal expectation is that the court will eliminate race-conscious admissions in June, at the end of this term.

After the court agreed to hear the cases challenging Harvard and the University of North Carolina, CNN spoke for many in declaring affirmative action “the legal equivalent of a dead man walking.” This current admissions cycle may be the last that universities can consider an applicant’s race to foster diversity. A decision banning affirmative action would be catastrophic for the presence of marginalized racial groups on the nation’s leading campuses. The very constitution of higher education in America, thus, hangs in the balance.

Fortunately, reports of affirmative action’s demise have been greatly exaggerated. Several plausible reasons suggest that the Supreme Court may not kill affirmative action — at least not with such alacrity. Even if most of the justices wish to end affirmative action, authoritative legal considerations may nevertheless compel the court to issue a decision permitting it to exist until June 2028. Given that the Harvard and UNC cases will almost certainly not be resolved until next summer, this approach would provide universities with a five-year reprieve before they adjust to a post-affirmative action world.

Liberal concerns for affirmative action’s future are not, of course, wholly unfounded. Although the court upheld the policy by a single vote in a University of Texas’s case in 2016, the court has since grown markedly more conservative. President Donald Trump’s three appointed justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — are all presumed to view affirmative action skeptically.

Moreover, while several decisions stretching back to the 1970s have permitted affirmative action, the court’s repudiation of Roe v. Wade (1973) four months ago could signal that the days of heeding precedent have passed. Making matters worse, Chief Justice John Roberts — the G.O.P.-appointed jurist most likely to join his liberal colleagues in landmark cases — has repeatedly denounced race-conscious actions. In 2007 he condemned school districts’ attempts to promote integration, declaring, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

So why would the Supreme Court extend affirmative action by five years if a majority is committed to colorblindness? The court validated affirmative action in a foundational decision, Grutter v. Bollinger (2003), which involved the University of Michigan Law School. Justice Sandra Day O’Connor, writing for the court, emphasized racial diversity’s importance in elite academic environments.

Nevertheless, she also stated that “race-conscious admissions policies must be limited in time.” Toward the opinion’s end, she noted that 25 years had elapsed since Justice Lewis Powell provided the decisive fifth vote to uphold affirmative action in Regents of the University of California v. Bakke in 1978. Then, in Grutter’s most arresting feature, she concluded, “We expect that 25 years from now, the use of racial preferences will no longer be necessary.”

It may be tempting to dismiss Grutter’s quarter-century horizon as mere loose talk. After all, sunset provisions are fundamentally the province of the legislature, not the judiciary. On this account, it seems absurd to view Grutter’s 2028 expiration date as meaningful, let alone as cognizable legal authority.

Upon reflection, though, Grutter’s time frame is not something that can be haphazardly disregarded. When Grutter initially announced that the sun would set on affirmative action 25 years hence, the policy’s supporters excoriated that timeline as woefully aggressive and naïve; today, however, that once-reviled statement has improbably become the last best hope to extend affirmative action beyond the coming year.

Justice O’Connor, according to Evan Thomas’s biography, did not dream up Grutter’s sunset provision at the 11th hour. Instead, she had been contemplating how to impose a temporal limitation on affirmative action for several years. In 1996, well before Grutter, she received an honorary degree from the University of Michigan. There she went on a law school tour guided by Kent Syverud, a former law clerk of hers who was then a Michigan professor. As they stood chatting in the law school’s basement, she expressed unease with affirmative action, but she also suggested that it might be permissible as a transitional instrument. “When is long enough?” she asked rhetorically. “How do we get to that point?”

More important than its origins, though, the justices have repeatedly treated the 25-year sunset as legally significant. Justice Anthony Kennedy’s dissent in Grutter quipped that the decision could be understood as containing “its own self-destruct mechanism,” suggesting that he viewed Grutter as preserving affirmative action until 2028.

Relatedly, Justice Clarence Thomas’s Grutter opinion — joined by Justice Antonin Scalia — dissented from the majority’s validation of affirmative action but concurred that the policy would be unconstitutional in a quarter-century. “We must wait another 25 years to see this principle of equality vindicated,” Justice Thomas wrote, referring to colorblind admissions. Admittedly, Thomas detests affirmative action with perhaps greater ferocity than any of his colleagues and clearly wishes the policy died long ago. He doubtless sought to ensure that affirmative action would end no later than 2028 and to stymie attempts to construe Grutter’s time frame as merely aspirational.

But even if Justices Kennedy and Thomas expressed their views in frustration, they are still persuasive in construing Grutter’s timeline as determinative. If Grutter did not intend to provide affirmative action a safe harbor, after all, it would not have articulated the 25-year window.

Following Grutter, justices from across the ideological spectrum have repeatedly invoked the quarter-century sunset. In 2012, during oral argument for the first challenge to the University of Texas’ admissions program, Justice Stephen Breyer stated unequivocally: “Grutter said it would be good law for at least 25 years. And I know that time flies, but I think only nine of those years have passed.”

Justice Scalia picked up this theme as he urged the university’s counsel to admit that after 16 more years, affirmative action would no longer pass constitutional muster. When the attorney sought to recast Grutter’s timeline as flexible, Justice Scalia would have none of it: “But you’re appealing to Grutter, and that’s what it said.” In 2015, when Texas’s admissions program returned to the court, Justice Scalia and Chief Justice Roberts referred to the 2028 expiration date during oral argument. Although both justices aimed to reveal that Texas had no intention of dropping its defense of affirmative action when the designated time arrived, they also made clear that Grutter’s deadline held significance.

The Supreme Court brief filed on behalf of Students for Fair Admissions, the group contesting Harvard’s and U.N.C.’s admissions policies, candidly accepts the legal force of Grutter’s timeline. The brief strikingly refers to “Grutter’s 25-year grace period.” The brief follows the lead of not only various justices but also several prominent scholars, journalists and appellate judges — all of whom have understood Grutter’s expiration date as binding.

Given that the court’s three liberals — Justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor — almost certainly will support affirmative action, at least two Republican-appointed justices would need to accept Grutter’s timeline for the policy to remain valid. (Yes, Jackson has recused herself from the Harvard case, but a 4-4 deadlock would keep the policy in place.) The three most likely candidates are, in my view, Justices Kavanaugh and Barrett and — against all odds — Chief Justice Roberts.

Justice Kavanaugh has demonstrated a deep commitment to racial diversity in law clerk hiring. Over the years, he has met with various Black law student associations to encourage members to apply for clerkships. He has stated that he has “been very aggressive about trying to break down barriers” in clerk hiring and expressed skepticism about “the old networks that prevented women and African Americans and minorities from getting law clerkships.”

He has walked the walk, too, compiling an impressive record of hiring clerks of color, first on the D.C. Circuit and now on the Supreme Court. It would be mistaken, of course, to assume that he adjusted his standards to hire racially diverse clerks. But it does stand to reason that he — far more than a garden-variety Federalist Society jurist — appreciates the importance of racial diversity within the corridors of power.

Justice Barrett may also be less reflexively hostile to affirmative action than is widely assumed. Is it at least possible that her experience adopting and raising two Black children has made her more intimately attuned to the ugly persistence of racial discrimination than some of her colleagues? Although this notion may initially sound reductive, sophisticated empirical scholarship has demonstrated that judges who have daughters are more receptive to women’s rights claims than judges who have only sons. It would hardly be astonishing if a similar, perhaps subconscious, dynamic applied to jurists with Black children and claims of racial justice. In fact, Prof. Maya Sen, one of the authors of the study on judges and their children, said in an interview that adopting a child may affect a jurist’s worldview.

The case for Chief Justice Roberts, in contrast, hinges on his commitments to institutionalism and incrementalism. His veneration of stare decisis counsels against brazenly overturning Grutter at once, when he could write an opinion finding that the decision will — on its own terms — expire in five years. This method would allow him to maintain with some force that he has come not to bury Grutter but to praise it.

“Stare decisis” means to “stand by things decided,” and is essential to law’s preference for predictability. At his confirmation hearing in 2005, Chief Justice Roberts repeatedly waxed eloquent about stare decisis. “It is a jolt to the legal system when you overrule a precedent,” he said. “Precedent plays an important role in promoting stability and evenhandedness.” His judicial self-conception is inextricably connected to these virtues, as he views himself as placing a steady hand on the tiller, not slamming the pedal to the metal.

Chief Justice Roberts’s respect for stare decisis is not hollow rhetoric. This year, he chided his colleagues for “overruling Roe all the way down to the studs” in Dobbs v. Jackson Women’s Health Organization. That was not an isolated instance. In 2020 he provided the critical fifth vote to invalidate a Louisiana law limiting abortion access. He did so even though in 2016 he voted, in dissent, to uphold a virtually identical Texas statute.

Yes, Chief Justice Roberts modified the underlying precedents in both Dobbs and the Louisiana case. But his incrementalism leads him to recoil from decisions that send the court lurching because new justices have arrived. No respectable legal doctrine asserts, “There’s a new sheriff in town.”

Most alarming for liberals, though, is that colorblind constitutionalism forms a central part of Chief Justice Roberts’s judicial project. His opinion for the court in Shelby County v. Holder (2013), which dismantled a key provision of the Voting Rights Act, bolsters this claim. But some aspects of that decision suggest he may be unwilling to rebuke Grutter’s sunset provision.

Importantly, Shelby County did not arrive as a bolt from the blue. He issued an opinion for the court in 2009 encouraging Congress to revise the act’s contested provision. Only four years later did he deem the measure unconstitutional. In addition, Shelby County did not wage a frontal assault on congressional authority to redress racial discrimination in voting. That opinion took the more indirect approach of finding that Congress’s solution was untethered to modern problems.

Make no mistake: Chief Justice Roberts’s indirect method gutted the act all the same. But the approach in Shelby County suggests that he prefers to reach his destination while minimizing confrontation, and is open to taking the scenic route. Shelby County thus strongly resembles the arguments favoring five more years — but only five more years — of affirmative action.

This focus on timing in the judicial context may seem strange. But temporal considerations have hovered over affirmative action since the very beginning. In 1977, as the court considered Bakke, McGeorge Bundy wrote a cover story for The Atlantic, in which he observed: “Some of those who defend affirmative action sometimes speak as if it could be a relatively short matter. If we measure in generations, they may be right.”

Inside the Supreme Court, the nation’s pre-eminent legal advocate of civil rights — Justice Thurgood Marshall — agreed that affirmative action would be required for generations. When the justices gathered in conference to consider Bakke, the question of duration arose, and he contended that the policy would be needed for 100 years. At this, Justice Powell blanched, deeming it an unfathomably long period.

Do not be shocked if the Roberts court announces next June that it will, in effect, split the difference between Justices Marshall and Powell, permitting affirmative action to reach the five-decade mark. Time will tell.

NEW INC. MAGAZINE COLUMN FROM HOWARD TULLMAN

 

Buckle Your Seatbelts, It's Going to Be a Bumpy Ride

Whether it's the prospect of a miserable midterm election--whatever the outcome--or a sagging economy, the signs are telling you to take care of business basics. That includes making the hard decisions you may have been avoiding.  

BY HOWARD TULLMAN, GENERAL MANAGING PARTNER, G2T3V AND CHICAGO HIGH TECH INVESTORS@TULLMAN

These seem to be perilous days for almost every business owner and especially for entrepreneurs who are finding that they are spending less time on business building and more on business bolstering. They are concentrating their time and energy on trying to make sure that their basic business is stable and solid; learning that keeping a business great is more difficult than building one in the first place. Their anxious boards and impatient investors may be pressing them to step on the gas but not the people charged with actually running the ranch.  Slow, smart, and steady is the simple scheme for now -- small steps, safe bets, and sure wins.

No one is shooting for the moon or betting the ranch on the next big Idea - that's too expensive, too risky, and too hard to sell to troops who are still shell-shocked. You have all dodged a big bullet and the team is happy to still be employed and in business. They want to be better prepared to survive the next wave of breakage and bad news, which feels like it's right around the corner. The need today is for belts and suspenders, backups and Plan Bs.  Redundancy and resilience are the key concepts. There's a lot of conversation about triage and even the most over-the-top talkers are just a little more tentative because even they know how close they came to the edge.

Instead of new entrepreneurial energy and bold innovations, we're currently stuck in a funk of post-pandemic lethargy, which doesn't seem likely to be abating any time soon. The emotional recession is certainly here, whatever the technical and economic measurements may be, and regardless of what the politicians may tell us.  We're more afraid of what the future looks like, in terms of our political, legal, and regulatory systems, than inspired and buoyed by what's happening all around. Nobody knows what chaos and new crises the November elections will bring (debt ceiling threats, fake MAGA-initiated impeachments, reductions in Social Security and other support programs) and how that assured mess will move the stock market.  Unfortunately, there's zero prospect that the direction will be positive. The new standard is likely to be "it wasn't as bad as it could have been," which isn't much of a bar and certainly nothing to aspire to.  

And all of that angst feeds into our businesses. A significant number of people don't want to come back to the office, in part because they've learned that they can be just as efficient working at home.  But also because they're more than a little afraid to face some of the economic realities of the new normal and some of the consequences of the "shrinkage" we're seeing in so many ways. They're mentally "sheltering in place" and postponing their returns because they're scared of what they're already seeing - less office space needed, fewer layers of middle management required, continued scarcity and supply chain issues, increased competitive and security threats from abroad. They wonder how long they'll be welcome back at work and when the downsizing will occur.

These old timers' concerns aren't exactly misplaced.  Because this period of listless limbo is probably the best and last time to make the personnel changes that you need to address in order to best position the firm for the future. You don't want to keep taking out little painful slices of the staff - the salami approach is a morale killer.  As we near the end of the year, this is the right time to get the tough decisions made. Apart from office space that you're dying to get rid of, payroll and other personnel costs will always be the main obstacle on the path to persistent and predictable profitability.        

In fact, just about every conversation today seems to be about hunkering down and getting to profitability (or staying there) because it's pretty clear that while most of your past investors are wary, tired, and looking for outside help, there's not a lot of easy money floating around. Valuations that were hyped during the height of the last bubble now look like heights that the company may never again achieve. Down rounds under duress aren't good news for anyone and they're the worst kind of pain for venture funds.

The ugly prospect of a reduction in the company's market cap especially impacts younger employees because they see their options under water and their pots of gold moving further and further into the future, or entirely out of sight. There's a lot of tension and talk about alternatives, including gigging and about making immediate job changes before the current opportunities and demand dry up. New employees and graduates about to enter the workforce are even more concerned and clueless about what to expect and where their careers will take them. They think their parents and bosses have failed them, they're not interested in fantastical lectures, and, as David Bowie said in Changes: "as they try to change their worlds, (they're) immune to your consultations (and) (they're) quite aware of what they're going through."

So, what can you do, as the poet Rudyard Kipling suggests, to "keep your head when all about you are losing theirs and blaming it on you" and to "trust yourself when all men doubt you"? My suggestion is to do what you should have done a long time ago and attend to those foundational things, which always seem to get lost in the rush and frenzy of the startup process. These are straightforward tasks; they provide comfort and reassurance to all concerned because they're serious, important, and productive for the long haul; and they're absolutely essential to the company's future success. Unfortunately, you and a million startups like yours, never had the time to do more than superficially address these things. But today, for perhaps the wrong reasons, is exactly the right time to get on the case.

The list could be quite long, but here are four areas that are so typical and omnipresent that they don't even require further explanation. First, clean up your code base. Second, repair and replace your tired infrastructure before it breaks at a crucial moment. Ditch the duct tape, extension cords, old cables, and sick servers. Third, upgrade and enhance your cyber security - password protection, secrets management, third party access, and vendor buffers - before you get hacked or discover that you've been hacked. And last, take the time to better train your people and build up their skill sets -- especially the newbies -- while there's a chance and while you theoretically have their attention before the business starts to really move again. Upskilling, which benefits them as well as you, is one of the few really attractive incentives firms can offer to get their folks back into the fold and the office.

None of this is rocket science but too many businesses overlook these kinds of exposures and risks at some point, until it's too late.

 

9th Season - Baltimore Musicales

 

An Afternoon of Beauty Awaits Treat yourself to an hour-long escape. No news, no worries, no to-do lists. Just time to reflect and be moved by the power and beauty of the human voice. Angeli Ferrette's grace and elegance shines through in her performance of spirituals by Hall Johnson, Jacqueline Hairston, and Lena McLin. Min Jin's virtuosity astonishes in works by Brahms and Hyo Geun Kim. Claire Galloway transports you with her velvety-voiced interpretations of Swedish songs and as a duetting siren with Thea Tullman Moore in ethereal music by Fanny Hensel. Matthew Maisano charms in Ravel's 5 Greek songs, and pianist Patricia McKewen Amato collaborates with sensitivity and warmth. Meet and chat with the artists, friends, and fellow music-lovers after the performance at our outdoor reception. We look forward to seeing you at Grace United Methodist Church!

Buy Tickets | Oct 23 at 3:30 PM

Keep up-to-date on concert announcements and upcoming ticket sales. Subscribe to our newsletter.

Subscribe Here for Updates

 

Kevin McCarthy's betrayal of the United States of America

Steve Schmidt

8 hr ago

135

42

Photo credit: Marjorie Taylor Greene Facebook page

Kevin McCarthy was my friend. He betrayed the United States of America and his duty and obligations to the Constitutional Oath that he took.

His conduct over the Trump era has been abhorrent. McCarthy is cynical, dishonest, delusional and toxically transactional — sometimes all at once. He knew full well what was happening on January 6, 2021, because he helped light the fire. When it was over, he obstructed the investigation and accountability. He slandered the Capitol Police officers who risk their lives protecting him. He personally travelled to Mar-a-Lago and singularly gave Trump immunity from his seditious conduct and criminal behavior by appeasing it, rewarding it and encouraging it.

Kevin McCarthy is utterly unfit for national political leadership. He is deeply dishonest and a brazen liar who believes he is beyond scrutiny, accountability or rebuke. He is part of a conspiracy to permanently seize political power. He has made clear what his role will be in destabilizing the United States over the next two years in an attempt to create a crisis big enough to end democracy. He will revel in authoritarian executive orders and decrees around a crisis of his own making in early 2025.