Biden’s dismal poll numbers imperil Dem Senate control

“Acutely aware of the need to get distance from the president, the four most endangered Democratic incumbents — Arizona Sen. Mark Kelly, Georgia Sen. Raphael Warnock, Nevada Sen. Catherine Cortez Masto and New Hampshire Sen. Maggie Hassan — are increasingly taking steps to highlight their independence from the president and underscore their differences.

Their public pushback against Biden’s plan to lift the Trump-era border restriction known as Title 42 is the most visible expression of the effort to get distance from the president. But the four Democrats are also finding other ways of signaling to voters. They’ve visited the border wall and blocked his nominees. A month before a Trump-appointed judge struck down Biden’s mask mandate on mass transit, three of the four voted in favor of a Republican bill to do just that.

On social media, where they shy away from praise of the president and instead focus on their efforts to prod the White House to action, it’s hard to tell they’ve voted in line with Biden no less than 96 percent of the time.

“In these four states, these are senators just doing the work, keeping their head down, getting things done for their states while the Republicans are obviously tearing each other apart in these primaries,” said Martha McKenna, a Democratic ad maker who previously worked for the Democratic Senatorial Campaign Committee.

“They are not people who go looking for conflict, they’re not grandstanders. They’re hard working senators willing to say, ‘Yes, I agree with Biden on child tax credits or health care, but look, I’ve got an issue on this issue, or that issue.’””

Here Is Why a Federal Judge Says Trump Probably Committed Felonies When He Tried to Overturn Biden’s Election

“Donald Trump and one of his legal advisers, former Chapman University law professor John Eastman, probably committed federal felonies when they conspired to reverse the outcome of the 2020 presidential election by pressuring then–Vice President Mike Pence to block or delay congressional ratification of Joe Biden’s victory. U.S. District Judge David O. Carter concluded it was “more likely than not” that the scheme violated 18 USC 1512, which prohibits obstruction of “any official proceeding,” and 18 USC 371, which criminalizes conspiracies to “defraud the United States.”
Carter made that determination while adjudicating a dispute over emails sought by the House select committee investigating the January 6, 2021, riot at the U.S. Capitol by Trump supporters who accepted his stolen-election fantasy and were angry at Pence for refusing to go along with Eastman’s plan. While the practical impact of Carter’s conclusion is limited to just one disputed document, his analysis amounts to an indictment of conduct that was not just dishonest and reckless but arguably criminal.

“The illegality of the plan was obvious,” Carter writes. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. As Vice President Pence stated, ‘no Vice President in American history has ever asserted such authority.’ Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed….President Trump knowingly tried to subvert this fundamental principle.”

Eastman argued that 111 of the documents sought by the January 6 committee’s subpoena were protected either by attorney-client privilege, which applies to confidential legal advice, or by the “work product” doctrine, which applies to material prepared in anticipation of litigation. The select committee argued that the disputed emails were not protected, invoking the “crime-fraud exception,” which applies to legal advice “in furtherance of” a crime.

Carter concluded that 13 documents qualified as work product and that the crime-fraud exception applied to just one: a memo prepared for Trump attorney Rudy Giuliani recommending that Pence “reject electors from contested states on January 6.” Carter says that memo “may have been the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action.”

As Carter notes, that plan of action was blatantly illegal. In conversations with Greg Jacob, Pence’s counsel, Eastman conceded that the plan violated the Electoral Count Act in several ways. And while Eastman questioned the constitutionality of that law, Carter says, the proper way to resolve those claims would have been to raise them in court rather than unilaterally choosing to ignore the statute.

Eastman likewise acknowledged that it was “100 percent consistent historical practice since the time of the Founding” that the vice president does not have the legal power to do what Eastman and Trump wanted him to do. Eastman also admitted that it was likely the Supreme Court would unanimously agree.

On January 3, 2021, Eastman nevertheless wrote a six-page memo calling for “BOLD” action by Pence to stop Biden from taking office. “The stakes could not be higher,” he wrote. “This Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.”

The next day, Eastman, at Trump’s behest, pushed his plan in a meeting with Pence, Jacob, and Marc Short, the vice president’s chief of staff. “During that meeting,” Carter notes, “Vice President Pence consistently held that he did not possess the authority to carry out Dr. Eastman’s proposal.” Eastman met again with Jacob and Short on January 5, saying, “I’m here asking you to reject the electors.” Most of that meeting was consumed by an argument in which Jacob disputed the legal merits of Eastman’s memo.

“Despite receiving pushback,” Carter says, “President Trump and Dr. Eastman continued to urge Vice President Pence to carry out the plan.” At 1 a.m. on January 6, Trump tweeted that “if Vice President @Mike_Pence comes through for us, we will win the Presidency,” averring that “Mike can send it back!” Seven hours later, another Trump tweet insisted that “states want to correct their votes,” saying “all Mike Pence has to do is send them back to the States, AND WE WIN.” He urged Pence to “do it,” because “this is a time for extreme courage!”

Trump delivered the same message in a phone call to Pence around 11:20 a.m. that day. According to Pence’s national security adviser, who was present during that conversation, Trump castigated the vice president as “not tough enough to make the call.” Trump and Eastman reprised the same theme during their speeches at the “Stop the Steal” rally that preceded the Capitol riot. Trump closed his speech by urging his followers to march on the Capitol in the hope of inspiring “the kind of pride and boldness” that “weak” Republicans like Pence needed “to take back our country.”

Around noon, Pence publicly rejected Trump and Eastman’s appeals, saying, “It is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.” After the riot started, Trump condemned Pence on Twitter: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

In an email to Eastman while Trump’s enraged supporters were storming the Capitol, Jacob noted that the rioters “believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day,” and “thanks to your bullshit, we are now under siege.” Eastman, who was still trying to change Pence’s mind, took a different view: “The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.”

A conviction for obstructing or attempting to obstruct an official proceeding requires proving that the defendant acted “corruptly.” According to 9th Circuit precedent, that element does not require “consciousness of wrongdoing.” But in this case, Carter says, Trump “likely knew that the plan to disrupt the electoral count was wrongful.””

“Carter’s conclusions do not necessarily mean that Trump or Eastman could be successfully prosecuted for either of these crimes. The preponderance-of-the-evidence standard for applying the crime-fraud exception is much less demanding than the proof beyond a reasonable doubt required for a criminal conviction. So even if the January 6 committee ends up recommending criminal charges, the Justice Department might sensibly decline to pursue them. But Carter’s ruling, which calls Eastman’s plan “a coup in search of a legal theory,” reminds us of how outrageous and unprecedented Trump’s reaction to his electoral defeat was.”

How Democrats learned to stop worrying and love the gerrymander

“The grinding battle over congressional redistricting is drawing to a close. And, contrary to expectations that the process would result in big Republican gains, the final House of Representatives map may well improve somewhat for Democrats.

The main reason is gerrymandering — redrawing of district lines for partisan benefit. Republicans built on their existing gerrymanders to try to expand their House advantage, but Democrats fired back even more powerfully with gerrymanders of their own.

Basically, Democrats saved themselves by resorting to a tactic they’ve previously denounced as not only unfair but downright unethical — House Speaker Nancy Pelosi called gerrymandering “unjust and deeply dangerous” in 2019. But in the absence of national reforms banning the practice, refusing to gerrymander would have meant effective unilateral disarmament, ceding the GOP a significant advantage in the battle for control over the House.

Redistricting has proceeded like a tug of war. As state legislatures, judges, and commissions have approved new maps, creating more safe or swing districts in various states, the underlying partisanship of the median House district has been pulled in one direction, and then the other. The most powerful pulls came from either state legislatures that gerrymandered, or state courts that struck down certain gerrymandered maps”

“it’s entirely possible, perhaps likely, that Democrats will still lose badly in House elections this fall — the party has a small majority, President Biden is unpopular, and the historical pattern is for the incumbent’s party to struggle in the midterms. But unlike much of the previous decade, the underlying map may be at least somewhat less biased in Republicans’ favor.”

Democrats’ fears about restricting mail-in voting were confirmed in Texas

“Thousands of votes were, in fact, thrown out, directly as a result of a new requirement in the law. A new AP analysis of data from Texas found that a whopping 13 percent of the state’s absentee ballots were discarded or uncounted.

And in the state’s biggest county, the new procedures it mandated contributed to a hugely messy vote-counting process.

“It’s been every bit as catastrophic as we feared it would be,” said James Slattery, a senior staff attorney at the Texas Civil Rights Project. “I think the onus is on the legislature to acknowledge the harm that it did to Texas voters by passing Senate Bill 1 and make amends by repealing it next year.”

But that probably won’t happen given that key Republicans who pushed for the law have continued to defend it.”

“The statewide rejection rate for mail-in ballots has typically been between 1 and 2 percent in past elections and was about 1 percent in the 2020 general election when mail-in voting rates were much higher. But in the 2022 primaries, county-level rejection rates ranged from 6 to 22 percent, according to data compiled by the Texas Civil Rights Project”

“In four counties that reported the reason they had rejected mail-in ballots, those identification requirements were to blame over 90 percent of the time. In Harris County, which encompasses Houston and is the most populous county in the state, it was 99.6 percent.

This was foreseeable. Even some Republican officials were worried about mail-in ballot rejections ahead of the primary. Texas Secretary of State John Scott said during a February town hall that it was his “biggest concern” of this election cycle. In a statement Tuesday, Sam Taylor, a spokesperson for Scott, acknowledged the issues with mail-in ballots during the primaries and said his office is devoting a significant portion of its voter education efforts to the new ID requirements.”

“Voters whose mail-in ballots were flagged for rejection did have the opportunity to correct them to ensure that they were counted. But the process proved confusing and looked different depending on when the problem with a voter’s ID number was discovered.

“You can see all the different ways that this can go wrong. What if the ballot never gets back to the voter? Or they don’t see it and think it’s junk mail? Or they correct the number issue online but don’t realize they need to send the ballot back?” Slattery said.

For some voters, the process was just too arduous.

“A lot of voters get these letters of rejection, and they just don’t bother,” said Michele Valentino, a Democratic election judge in Dallas.

Some flaws can be expected when implementing a new system for the first time, but this bodes poorly considering how low turnout was relative to general elections: Fewer than 1 in 5 voters cast ballots in the primaries, which is higher than in the past six midterm primaries but still a lot lower than the roughly 46 percent of Texans who showed up for the last midterm general election in 2018.

“I can see this issue compounding and worsening as we reach the midterms this year,” said Jasleen Singh, counsel in the democracy program at the Brennan Center for Justice, where she focuses on voting rights and elections. “That there’s even this much hardship that voters are encountering at this stage is incredibly concerning and dangerous for democracy.”

The AP analysis showed a higher rate of rejections in Democratic than Republican counties (15.1% to 9.1%). That was also predictable: Voters of color typically bear the biggest burden from any restrictions on voting, and they make up a large share of many of those Democratic-leaning counties.”

Clarence Thomas’s long fight against fair and democratic elections

“We now know that Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, spent the weeks after the 2020 election cheerleading the Trump White House’s efforts to overturn President Joe Biden’s victory in that election. One detail we do not yet know, however, is what Justice Thomas knew about his wife’s communications, and whether he tried to use his office to protect her.

In January, the Supreme Court permitted the US House committee investigating the January 6 attacks on the Capitol to obtain hundreds of pages of White House records that may shine a light on former President Donald Trump’s efforts to thwart the peaceful transfer of power to Biden. These records may or may not contain additional evidence linking Ginni Thomas to January 6.

If Clarence Thomas had his way, the House committee and the public would never know. Thomas was the only justice to publicly dissent from the Supreme Court’s decision to let the House committee obtain these records — though he offered no explanation for why he dissented.

But here’s the thing: Yes, Thomas’s vote in this case, Trump v. Thompson, may have been an underhanded effort to protect his own wife. But his vote in Trump was entirely consistent with his record in cases where his spouse does not have a personal interest.

In more than three decades on the Supreme Court, Thomas has consistently voted to make it harder for many Americans to have their vote count; to erode institutions, like a free press, that are essential to democracy; and to dismantle nearly a century’s worth of democratically enacted laws on spurious constitutional grounds. Thomas’s opposition to democracy is not rooted in nepotism. It appears to be quite principled.

Among other things, Thomas is the only sitting justice who voted to install a Republican president in Bush v. Gore (2000) — although three other current justices were part of Republican George W. Bush’s legal team in that case. Thomas would allow Republican administrations to deactivate the entire Voting Rights Act so long as they are in power. He would strip journalists of First Amendment rights that allow them to safely provide critical coverage of government officials. And he would invalidate a long list of laws including the federal bans on child labor and on whites-only lunch counters, based on a widely rejected reading of the constitutional provision that grants Congress most of its power over the private sector.

No matter how the scandal with his wife’s texts shakes out, it’s worth remembering how the Court’s longest-serving justice would shape the world. In Clarence Thomas’s America, elections would be skewed so heavily in the Republican Party’s favor that Democrats will struggle to ever gain power. And if Democrats somehow do manage to squeak into office, Thomas would ensure that they cannot govern.”

“In 1960, civil rights activists aligned with Martin Luther King, Jr. ran an advertisement in the New York Times, which alleged that Alabama police used brutal tactics to suppress student protests. The ad, however, contained some minor factual errors. It misidentified the song that protesters sang at a particular demonstration, for example, and it also claimed that police had arrested King seven times, when he’d in fact only been arrested four times.

Pointing to these small errors, a Jim Crow police official won a $500,000 verdict against the Times in an Alabama court — close to $5 million in 2022 dollars. Had this verdict stood, it would have chilled journalism of all kinds, because it would have meant that any newspaper or other outlet that prints even very small factual mistakes could have been hit with a verdict large enough to bankrupt the outlet.

The New York Times decision, however, prevented this outcome by holding that the First Amendment imposes limits on defamation lawsuits. When someone speaks about a public figure and about a matter of public concern, the Court held, they cannot be held liable for making false statements unless that statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

Thomas argued in McKee v. Cosby (2019) that New York Times should be overruled. Indeed, Thomas’s opinion suggests that states should be free to define their own defamation law free of constitutional constraints. “The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas wrote.

If this approach were to prevail, state officials could once again use malicious defamation lawsuits to target journalists. Suppose, for example, that I mistakenly report that “500 people attended a rally protesting Florida Gov. Ron DeSantis,” when in fact the rally was attended by only 450 people. If states can set their own defamation laws, free of constitutional constraint, then DeSantis could sue me and Vox Media for millions, endangering our ability to continue reporting on DeSantis — and potentially bankrupting Vox in the process.”

Opinion | The French Election Is a Glimpse at the Volatile Future of Western Politics

“whether Emmanuel Macron or Marine Le Pen is victorious, the election already offers more evidence of the challenges facing mainstream politics, with the collapse of the traditionally dominant parties and populist forces still rising across the West.”

“Whether this broad rejection of the status quo means we are headed toward a world dominated by illiberal politics or merely one of extreme and permanent volatility isn’t yet clear. And new crises, notably the consequences of climate change, may well fashion some hybrid version of our politics.
But ultimately, populism is probably a transition, not an end-state. The politics of the center are far from irrelevant, but our institutions — overwhelmed by the politics of accusation and resentment — no longer know how to provide voters with reasonable and legitimate means to address their grievances from a centrist vantage point. So populism, however destructive, may yet force Western politicians to craft new institutional paths to representation and to compromise — more in sync with what people experience in their everyday lives, and with what they value. More reactive, more local, and more flexible. But a painful and treacherous transition it is, something made quite clear in the French election.”

“Macron is no longer the exciting young maverick who stormed the Elysée, having siphoned support from a frustrated center-left and scandal-plagued center-right. He’s struggled to govern through crises like the Yellow Vests protests and pension reform strikes, while his “Jupiterian” approach and occasional sarcasm have all led to a deep resentment of his persona and some outright loathing in many quarters.

Post-pandemic, most French voters might have grudgingly agreed that Macron’s government has “done OK,” and as a result, Macron entered this election well ahead of other candidates in the polls, and slightly boosted by the Ukraine crisis. But a majority of voters are at best disillusioned and most often angry.

Meanwhile, in five short years, Le Pen has furthered her mission to appear more mainstream. Gone are the days when 80 percent of French voters thought she and her far-right party were a menace to democracy. Today, the number is barely 50 percent.

Le Pen’s strategy (since she took over the party from her Holocaust-denying father in 2011) has been to focus on lower income voters. Rather than simply woo those susceptible to a traditional populist right agenda on immigration and integration as her father had done, she made a play for working class voters who increasingly felt that the traditional left had deserted them and their interests. This story is a familiar one in advanced democracies where progressive or social democratic parties have struggled to reconcile representing the economically vulnerable while supporting inclusive visions of societies that lower income voters feel disproportionately benefit an (urban, cultural) elite. We saw this play out in the Brexit vote, but also in the Trump vote.”

“In 2017, Macron was elected by reducing the Socialists to rubble and putting the center-right on life support. This year, that trend accelerated, as the Socialists’ candidate came in below 2 percent (after holding the presidency a mere five years ago) and the leading candidate of the center-right came in under 5 percent. The result is that Macron aside, the candidates from the main institutional parties have been wiped out in this election.

Of the three candidates who came in over 20 percent, one is of the populist right (Le Pen) and one is of the populist left (Mélenchon); both advocate a distanced relationship with the EU and with the U.S., governance by popular referendum and pulling out of NATO or NATO’s integrated command. Add to this the 7 percent for extreme right Éric Zemmour and the 26 percent of voters who stayed home, and it shows the vast majority of French voters are refusing to engage with mainstream politics.”

“Part of the attraction of illiberal ideologies (sometimes imported from places such as Russia and China that have gone through more recent political and economic upheavals) is their rejection of the status quo. What is coming into focus is the fact that voters have a bone to pick not just with the choices they are being offered, but with the way they are being asked to choose.”

The presidential penalty

“The historical pattern is clear, and ominous for Joe Biden and Democrats this year: The president’s party usually does poorly in midterm elections.”

“Some theories focus on lower turnout among the president’s supporters. Others emphasize the public’s tendency to sour on an incumbent president. They may both be correct to some extent.
Other theories focus on why some presidents tend to do worse than others in midterms. Maybe the results are mainly about presidential approval these days. Or maybe they’re about the economy or, more specifically, real personal income growth. Some national crises, like 9/11, are associated with unexpectedly strong midterm performances for the president’s party — but others are associated with blowout defeats.

None of these signs are looking great for President Biden right now. His approval rating is the second-lowest of any president’s at this point in their presidency since modern polling came into use. The economy is booming by some metrics, but inflation is at a 40-year high and eating into voters’ spending power. The country is still in the midst of the pandemic, but Biden hasn’t unified the country around his leadership.

There’s no one weird trick that can guarantee midterm success, or one theory to perfectly explain every midterm result. But there are several that, considered together, go a long way toward helping explain why this so often happens — and what November’s midterms might herald for Biden.”

“The trend predates World War II, so it’s not about recent developments. It happens in states (the governor’s party usually loses seats in off-year legislature elections), so it’s not just about the presidency. It’s not just an American phenomenon, either. “It also occurs internationally in systems where there is a chief executive election separate from a midterm,””

New York is about to let noncitizens vote. It could reshape local politics forever.

“a national movement to give voting rights to legal noncitizens has found its way to the country’s most populous city and, pending court battles, will soon give those immigrants the chance to shape local elections.
About 800,000 green card holders and others authorized to work in the country will become eligible to vote for mayor, City Council and other local offices. New York is by far the largest city to make such a move.

The impact on local elections could potentially be far-reaching. The city’s electorate consists of just under 5 million active registered voters, meaning a major push to register immigrants and get them to the polls could reshape politics in New York. Voting blocs like the one that elected Linares could have the power to affect the outcome of not just City Council races but even the next mayoral race.

Proponents say noncitizen voting will give more political clout to communities whose concerns have often been overlooked, and force candidates and elected officials to be responsive to a broader swath of the population. Opponents — who are challenging the law in court — predict it could be a logistical nightmare, and charge the increased influence for immigrant voters could come at the expense of U.S.-born Black voters.”

“New York wasn’t alone in allowing some form of noncitizen voting in years past: as many as 40 states practiced it at some point from the 18th century through the early 20th century, according to research by Ron Hayduk, a professor at San Francisco State University who has studied noncitizen voting, including the New York school board election. The practice was abolished in the last of those states nearly a hundred years ago.”

Did Redistricting Commissions Live Up To Their Promise?

“According to two common measures of map fairness, congressional maps enacted by commissions (or courts that took over from failed commissions) have been less biased than those that have emerged from legislatures. For instance, out of the six commission states with at least three congressional districts, five have a median seat whose FiveThirtyEight partisan lean2 is within 3 percentage points of the state’s as a whole. (The exception is Colorado, where the median seat is 5 points redder than the state.)

It’s even more striking when you go by the maps’ efficiency gaps, which is a measure of which party has fewer “wasted” votes (i.e., votes that don’t contribute toward a candidate winning). All but one commission state with at least three congressional districts has an efficiency gap of 5 points or fewer, whereas the maps drawn by partisan actors are very partisan. (So far, every Democratic-controlled state with at least three districts has an efficiency gap of D+13 or greater, while all but one Republican-controlled state with at least three districts has an efficiency gap of R+7 or greater.)

The exception among commission states is New Jersey, whose map has a D+16 efficiency gap, indicating a strong pro-Democratic bias. But New Jersey’s commission is not exactly a model of nonpartisanship. Twelve of its 13 members are picked directly by state legislators or political parties (six by Democrats, six by Republicans), and after they failed to agree on a 13th member last summer, the New Jersey Supreme Court chose the Democrats’ preferred candidate. The commission eventually (and predictably) voted 7-6 for a map drawn by the commission’s Democrats.”