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Like many scholars of democracy, I have strongly supported both the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act. Both are necessary (though not sufficient) to secure the most precious rights in any democracy the right to vote and the right to have ones vote counted fairly and accurately.

Most supporters of these bills believed the urgent need for them justified lifting the Senate filibuster and passing them on a purely partisan vote. But with the refusal of Democratic Senators Joe Manchin and Kyrsten Sinema (or any Republican senators) to vote to suspend the filibuster, its clear that these bills will not pass this Congress.

The only remaining option is to pare back the reform cause to a much narrower agenda that can command bipartisan support. Democrats must recognize that politics is the art of the possible, and democratic responsibility demands that we not sacrifice what is valuable and possible on the altar of the unattainable. That means supporting the bipartisan efforts to reform the Electoral Count Act.

This work is now taking shape in bipartisan negotiations among moderate senators convened by Susan Collins, Republican of Maine. The new bill would fix some of the most dangerous vulnerabilities in the 1887 Electoral Count Act some of which we saw in the 2020 election that could enable a future Congress (or a rogue vice president) to reverse the vote of the Electoral College in certain states or to plunge the process of counting electoral votes into such chaos that there would be no way of determining a legitimate winner. Such a deadlock could precipitate a far larger and more violent assault on the democratic order than what we saw on Jan. 6. Reducing the risk of such a calamity is a democratic imperative.

Senator Collinss group is reportedly considering making it much more difficult for Congress to question properly certified state election results, clearly specifying that the vice presidents role in counting the electoral votes is limited, protecting election officials from harassment and intimidation while they carry out their lawful functions and granting states new funding to improve their voting systems.

As the N.Y.U. election law expert Richard Pildes has written, federal election laws from the 19th century (the Presidential Election Day Act and the Electoral Count Act) contain provisions that could offer troubling opportunities for disruption and abuse during a postelection struggle over the presidential vote. The potential for a state legislature to declare a failed election and appoint its own slate of electors must be closed through a reformed law. The danger that postelection litigation could carry on beyond the meeting of the Electoral College can also be addressed by extending the safe harbor date for reporting a states electoral votes from early December until later that month and then postponing the formal Electoral College vote from December until early January (shortly before the Congress convenes to count the electoral votes on Jan. 6).

Mr. Pildes and three other leading electoral law experts from diverse ideological backgrounds recently proposed a reform of the Electoral Count Act that would prevent Congress from questioning a states electoral votes once the state certified them through policies established in advance of the election. If state authorities could not agree on who won their electoral votes, the reformed law should establish a mechanism like a nonpartisan tribunal to resolve the dispute. (In addition, before the safe harbor deadline, there would still be the option of challenging in the courts any state legislative effort to circumvent rules and steal an election.) Angus King, an independent senator from Maine, has also been leading efforts to reform the Electoral Count Act; one focus is to establish a procedure for judicial review of state results if a state failed to follow the procedures it previously prescribed for choosing its electors. This reform would at least remove one pathway to reversing a states legitimate presidential election result.

So far, the Republican leaders of the Senate and House, Mitch McConnell and Kevin McCarthy, have expressed openness to Electoral Count Act reform. Beyond such a bill, Republican senators such as Mitt Romney have also signaled an openness to considering some reforms on voting rights.

We cant know what might be possible through bipartisan negotiations, but we do know that the Democrats two voting rights bills have not gotten passed this year.

We must embrace the reform we can achieve and continue the fight for the important reform work of the future.

Larry Diamond is a senior fellow at the Hoover Institution and a senior fellow in global democracy at the Freeman Spogli Institute for International Studies at Stanford. He is the author, most recently, of Ill Winds: Saving Democracy From Russian Rage, Chinese Ambition, and American Complacency.

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Opinion | Democrats, Want to Defend Democracy? Embrace What Is Possible. - The New York Times

Not that it matters in the slightest, but when Donald Trump refused to commit to accepting the legitimacy of the 2020 election results, he had his reasons.

It wasnt the facts that mattered; it was the ontology of Trumpism the all-consuming persecution complex that characterizes his movement that mattered most.

You know that Ive been complaining very strongly about the ballots, the then-president rambled during a White House news conference, and the ballots are a disaster. Trump advised states to get rid of the ballots, which enterprising reporters translated into a slightly more coherent argument against the absentee and mail-in balloting regimes approved at the state level in response to Covid. Some of the issues Trump raised, like the accusation that the state of New York had mailed out ballots riddled with errors, were valid. Others, like the idea that West Virginians were selling ballots and that whole cases of military votes were thrown in the trash, were not.

All told, however, it wasnt the facts that mattered; it was the ontology of Trumpism the all-consuming persecution complex that characterizes his movement that mattered most. Trumps most stalwart supporters believed that American institutions were set against the president and, by proxy, themselves. To look too deeply into the substance of Trumps allegations was to miss the point.

The former presidents critics correctly surmised that his rhetoric was dangerous. It created a psychological permission structure that would allow his voters to dismiss any evidence that invalidated their fears about a stolen election. Trump was playing with fire. It wouldnt be long before that fire conflagrated into an unprecedented attack on the seat of American government, but that was no ones intention in September 2020. At the time, it was all just talk.

To their credit, Democrats have integrated their hostility toward the rhetorical delegitimization of elections into their political identity. At least, they oppose it when Republicans are doing the delegitimizing. And yet, Democrats dont seem to be above embracing unfounded attacks on the electoral process when it advances their interests. Thats exactly what President Joe Biden did during a news conference on Wednesday, and he seems to be dragging his party with him.

Speaking of voting rights legislation, one reporter asked the president, if this isnt passed, do you still believe the upcoming election will be fairly conducted and its results will be legitimate?

To their credit, Democrats have integrated their hostility toward the rhetorical delegitimization of elections into their political identity.

Biden responded by noting that it all depends on whether his administration can make the case to the American people that the voting rights bill should become law. Bidens contention that this years midterms would only be conditionally valid prompted reporters to follow up on this claim, whereupon Biden made everything worse.

You said that it depends, another reporter remarked. Do you think that they would in any way be illegitimate?

Biden doubled down. Im not going to say its going to be legit, he declared. The increase and the prospect of being illegitimate is in direct proportion to us not being able to get these reforms passed. There was no ambiguity in the presidents remarks. Until and unless Congress passes Bidens preferred electoral reforms into law, the legitimacy of this years elections will be in doubt. And since Bidens preferred electoral reforms are unlikely to become law, the Democratic Partys most faithful will have all the license they need to reject the legitimacy of an electoral outcome that does not favor their partys candidates.

Biden managed to conscript much of his party into a rhetorical assault on the legitimacy of an election that all indications suggest favors the GOP. Are you concerned that without these voting rights bills the election results wont be legitimate? CNNs Kasie Hunt asked House Majority Whip Rep. James Clyburn, D-S.C., on Thursday. Im absolutely concerned about that, he replied.

Vice President Kamala Harris agreed. When confronted with the similarities between Bidens rhetoric and Trumps, Harris dismissed the claim offhand. We as America cannot afford to allow this blatant erosion of our democracy and, in particular, the right of all Americans who are eligible to vote to have access to the ballot unfettered, she said.

We can expect that talking down the legitimacy of American elections will have a predictable partisan effect. In 2020, Gallup, which has gauged Americans confidence in elections on five occasions since 2004, found that 74 percent of Democrats believed that U.S. elections were valid compared with an abysmal 44 percent of Republicans. This is surely attributable to Republicans receptivity toward Trumps rhetoric and Democrats hostility toward it. Historically, however, it's Democratic voters who have expressed more skepticism in the legitimacy of the American electoral process. That makes sense because, historically, it's Democratic politicians who have called the legitimacy of Americas elections into question.

As late as 2018, a staggering two-thirds of Democrats told YouGov pollsters that Trumps legitimacy was questionable because Russia tampered with vote tallies on Election Day to help the president in 2016.

George W. Bush was selected, not elected in 2000, according to Hillary Clinton. Former Virginia Gov. Terry McAuliffe argued that the Republican-led state of Florida and the Supreme Court tampered with the results to deliver Bush into the White House. He did the same thing again four years later. We actually won the last presidential election, folks, he told a cheering crowd. They stole the last presidential election.

As late as 2018, a staggering two-thirds of Democrats told YouGov pollsters that Trumps legitimacy was questionable because Russia tampered with vote tallies on Election Day to help the president in 2016 a theory for which there is precisely no evidence, but which was bolstered by the likes of Bidens staff secretary, Neera Tanden. Americans, she argued, have intuitive sense Russians did enough damage to affect more than 70k votes in 3 states. No doubt, had Trump won re-election, a healthy number of Democrats would confess to their belief that his victory was a result of the full flowering of a conspiracy to weaponize the U.S. Postal Service an allegation that was lent credence by Senate Democrats who actually held hearings on the issue.

If White House press secretary Jen Psaki's comments are any indication, theres real tension between the political message Democrats are retailing in regard to the legitimacy of American elections and what they know to be the truth. When asked if the president had confidence in Americas elections even if his preferences didnt become law, she said plainly: yes. But Psakis unequivocal rejection of this conspiracy theory was nowhere to be found in her appearance the following day on ABC's The View. Asked why voters should have faith in the legitimacy of the next election in the absence of Democrats preferred reforms, Psaki clarified that Biden wasnt predicting that the elections were not destined to be illegitimate, but that Republicans are actively seeking to undermine their legitimacy, which the presidents reforms would prevent. This statement is many things, but what it isnt is an unqualified expression of confidence in the American electoral process.

Either calling into question the credibility of American elections mortgages the stability of our democratic institutions, or it doesnt. Either stoking paranoia and apprehension is wrong and dangerous, or it isnt. The motives of those who apply these base tactics is immaterial. By flirting with the paranoid revisionism that overtook the GOP in the wake of the 2020 vote, Biden abandoned the moral high ground on the issue and ushered in a dangerous new phase in our collective fight against the paranoid nihilism that has become so fashionable in our politics. If neither party is willing to defend the electoral process unless it delivers outcomes they like, that process isnt long for this world.

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Trump's Republicans aren't the only ones questioning election legitimacy - MSNBC

Freshman Democratic Senator Raphael Warnock may have to count on a Trump-generated GOP meltdown in his state. Photo: Anna Moneymaker/Getty Images

Political handicappers looking to the 2022 midterms have naturally focused on House races, mostly because the Democratic margin of control is so small (five seats at present) that the very predictable pattern of midterm House losses by the presidents party makes continuation of a Democratic House a real long shot (and probably a prohibitive long shot unless Joe Bidens job-approval rating shows significant improvement soon). The loss of either chamber, of course, means the governing trifecta that has made enactment of part of Bidens legislative agenda possible will be gone, probably for a good while (at least until 2026, by my reckoning). But there is some independent value in continued Democratic control of the Senate thanks to that chambers role in confirming Bidens executive branch and judicial nominees along with the ability to control committee and floor action in a way that gives Democrats significant leverage and opportunities for conveying their message.

Because only one-third of the Senate is up for reelection every two years, there is not the sort of predictable relationship between Senate outcomes and the general political climate. In other words, a bad year for either party in presidential, House, or gubernatorial contests doesnt mean a bad year in Senate races if the landscape is positive. We saw that most recently in 2018, when Republicans lost 41 net House seats and seven net governorships yet picked up two net Senate seats because the landscape (with 26 Democratic Senate seats and only nine Republican Senate seats at stake) was very positive for the GOP.

The Senate landscape is modestly positive in 2022 for Democrats, who have to defend only 14 seats as compared with 20 seats for Republicans. Moreover, as Amy Walter points out, none of the 14 Democratic seats are in a state carried by Donald Trump in 2020. Meanwhile, Republicans are defending two seats in states carried by Biden in 2020, Pennsylvania and Wisconsin.

But at the same time, Democrats are defending three Senate seats (in Arizona, Georgia, and Nevada) in states Biden carried very narrowly (he won by 0.30 percent in Arizona, 0.24 percent in Georgia, and a relatively luxurious 2.39 percent in Nevada). Republicans in the two nominally blue states whose Senate seats they control dont have much ground to make up, either (Biden won Pennsylvania by 1.17 percent and Wisconsin by 0.63 percent). They also control an open seat in North Carolina, a state Trump won by only 1.3 percent.

To give you an idea of how much swing Republicans might rationally expect in a midterm, consider that Republicans won the national House popular vote by 1.1 percent in 2016 and Democrats won it by 8.6 percent in 2018. Thats a lot of movement against the party controlling the White House. Anything remotely like that in 2022 again, controlling for state aberrations despite the trend toward straight-ticket voting in recent years and Republicans could pretty easily sweep the six contests mentioned above, all rated as toss-ups by the Cook Political Report, and take control of the Senate by a 53-to-47 margin, assuming neither party breaks serve by winning in a less competitive state.

What may give Democrats better Senate odds is the current nature of Republican intrastate and intraparty dynamics. There are potentially fractious GOP Senate primaries in Arizona, North Carolina, and Pennsylvania that could produce nominees with real weaknesses. Moreover, in these states and others (notably Ohio, a red state that recently reelected a progressive Democratic senator), Trumps insistence on turning GOP primaries into referenda on loyalty to his ludicrous 2020 election claims could interfere with the expected pro-Republican midterm trend.

Potential Trump-generated problems affecting Senate races arent limited to his involvement in just those races. Georgia is a classic example. Freshman Democratic Senator Raphael Warnock, who along with Jon Ossoff won by an eyelash in 2021s unique dual general-election Senate runoff in what has become the ultimate battleground state, ought to be a sitting duck in 2022 with even a minimal midterm swing. But Trump enormously complicated Georgia politics by pushing the man Ossoff beat a year ago, David Perdue, into a primary challenge to the incumbent governor, Brian Kemp, as part of a purge effort aimed at those who didnt support the 45th presidents efforts to overturn the 2020 election results. The Perdue-Kemp primary is sure to be an extremely expensive and divisive affair. It could weaken the ultimate winner in a general election against Stacey Abrams and might spill over into the Senate race, where Republican front-runner and Trump favorite Herschel Walker hasnt shaken questions about his background and temperament (or rid himself of primary opposition).

Divisive Republican gubernatorial primaries seem likely in Arizona and Pennsylvania, as well, and could extend to Wisconsin, where incumbent GOP Senator Ron Johnson is struggling with low favorability numbers.

Republicans should be considered the slight favorites to flip the Senate (and much stronger favorites to flip the House) in 2022, assuming Bidens popularity doesnt seriously improve by November. But Mitch McConnell should not be making big plans for 2023. His partys lord and master, Trump, could screw things up yet, and you never know entirely what will happen in a wide array of competitive Senate races.

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Democrats Need Republican Mistakes to Hang On to the Senate - New York Magazine

A law Gov. J.B. Pritzker enacted to create judicial subcircuits in parts of Illinois has been temporarily blocked as some say the partisan measure was rushed through at the detriment of voters.

During their one day in session so far this year, Democrats earlier this month went at it alone, passing new judicial subcircuits. Without fanfare, Gov. J.B. Pritzker enacted the maps on Jan. 7.

State Sen. Jason Plummer, R-Edwardsville, reacted to a Sangamon County judge this week temporarily blocking those new judicial districts from going into effect in Madison County.

It wasnt just the packing of the courts [with Democratic judges], it wasnt trying to set the courts up, it also took away the vote from the vast majority of the people of Madison County to be able to vote for their local judicial elections this cycle, Plummer told The Center Square.

Some of the new districts were to take effect for the 2022 election cycle while others in other parts of the state would take effect in 2024. The new districts in Madison County pitted two sitting judges against each other in elections coming up this year, while creating other judicial subcircuits Plummer said didnt have equal representation. Even being on the Senates redistricting committee, he said there was little to no information about how the maps came about and for what reason they were rushed.

The Madison County Board, in a bipartisan vote, authorized the states attorney to sue to halt the maps. Monday, a Sangamon County judge issued a temporary restraining order blocking the maps from being enacted.

Plummer said for him the issue is about transparency, the independence of the judiciary and more.

And the governor was put in a very bad spot, Plummer said. He foolishly signed the legislation and I think hell have egg on his face on this for a long time coming.

At an unrelated event in East St. Louis Wednesday, Pritzker said hell keep an eye on the litigation, but declined to comment further.

I dont have much to say about it, Pritzker said. "Its obviously an ongoing case."

Pritzker questioned why he as governor and the Illinois State Board of Elections were the defendants in the case when there were "many other people ... involved in it," but he did not elaborate.

"Who did this?" Plummer asked. "Who pushed this legislation? Who drew the maps?"

Plummer said the politicization of the court system in a hyper-partisan era should be opposed by both parties.

I think the people in the Metro East with bipartisan opposition to it are going to have a lot of questions for the governor, who said he will not participate in partisan redistricting, Plummer said. This is the epitome of partisan redistricting.

The case continues Feb. 15.

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Sen. Plummer applauds the halting of the Democrats' judicial subcircuits - AdVantageNEWS.com

WASHINGTON It was a testament to the breakdown of the Senates judicial confirmation machinery that the first question posed by many this past week regarding an upcoming Supreme Court vacancy was whether Democrats could install a new justice entirely on their own.

The answer is yes, if the party sticks together. And the prospect of President Bidens eventual nominee receiving only Democratic votes is hardly far-fetched, given the bitter history of recent confirmation fights for the high court.

Justice Amy Coney Barrett, the last member of the court confirmed by the Senate, did not receive a single Democratic vote. But Republicans held a 53-to-47 advantage and could afford to lose a colleague or two in ramming through her nomination just before the presidential election in 2020.

With their bare-minimum 50-seat majority, Democrats will not have that luxury after Mr. Biden nominates the first Black woman for the court sometime in the next few weeks. Considering the toxic partisan atmosphere surrounding contemporary Supreme Court fights, it is conceivable she could make history not only because of her gender and race, but also as the first person elevated to the court by a tiebreaking vote of the vice president.

It would be a far cry from the simple voice-vote approval of many of her predecessors as recently as the 1960s. Or the 98-to-0 confirmation of Justice Antonin Scalia, a leading judicial conservative, in 1986. Or even the 87-to-9 vote in 1994 for Justice Stephen G. Breyer, a member of the courts liberal wing, who announced on Thursday that he would step down after nearly three decades.

The decline in consensus Supreme Court confirmations has been precipitous, and the escalation of partisan warfare has been sharp.

Deep bitterness lingers over the Democratic assault on Robert H. Bork in 1987; the routine deployment of filibusters against judicial nominees of both parties beginning during the administration of President George W. Bush; the Republican blockade of Judge Merrick B. Garland in 2016; the tumultuous confirmation of Justice Brett M. Kavanaugh in 2018; and the hardball Republican move to rush Justice Barrett onto the court two years later.

With the Supreme Court deciding so many of the most polarizing issues of the day including abortion rights and affirmative action neither side is willing to cede much ground, and both display their battle scars.

It is a sad commentary on the nomination process that it has so disintegrated over the years, said Senator Susan Collins of Maine, one of the handful of Republicans considered to be in play as potential backers of Mr. Bidens pick. If you look at the incredibly strong vote by which Stephen Breyer was confirmed, you just dont see it nowadays.

Democrats would dearly like to avoid a skin-of-the-teeth party-line vote for whomever Mr. Biden puts forward. One of the first calls made by Senator Richard J. Durbin, Democrat of Illinois and the chairman of the Judiciary Committee, was to Ms. Collins, promising her whatever material and assistance he could provide to help her evaluate the forthcoming nominee.

Democrats also hope the fact that Mr. Bidens pick would replace a liberal justice and not tip the ideological balance of the firmly conservative court and the fact that she will be an African American woman will deter Republicans from a scorched-earth campaign when their odds of winning are low.

But while Republicans are promising an open-minded review of the nominee, hard feelings over the earlier confirmation clashes, such as Justice Kavanaughs fight against sexual assault allegations, are never far from the surface.

Whoever the president nominates will be treated fairly and with the dignity and respect someone of his or her caliber deserves, something not afforded to Justice Kavanaugh and other Republican nominees of the past, Senator John Cornyn of Texas, a senior Republican member of the Judiciary Committee, said in response to Justice Breyers retirement.

Besides Ms. Collins, another Republican who will be the focus of Democratic attention is Senator Lisa Murkowski of Alaska, a frequent supporter of judicial nominees of Democratic presidents and the only Republican to oppose Justice Kavanaugh.

Ms. Murkowski is running for re-election this year under a new ranked-choice voting system back home. She is already opposed by a hard-right conservative vigorously backed by former President Donald J. Trump, who is furious at Ms. Murkowski for voting to convict him at his impeachment trial following the Jan. 6 attack on the Capitol. Siding with Mr. Bidens choice for the court could help her attract the Democratic and independent voters she could need to prevail under the new election rules in her state.

Senator Lindsey Graham, Republican of South Carolina and a former chairman of the Judiciary Committee, has also deferred to Democratic presidents in the past and voted for justices and lower-court judges they put forward.

Last year, Mr. Graham, Ms. Collins and Ms. Murkowski were the only three Republicans to back Judge Ketanji Brown Jackson, a front-runner to succeed Justice Breyer, for a seat on the influential U.S. Court of Appeals for the District of Columbia Circuit.

Supporting someone for a circuit court seat is no guarantee of supporting that same person for the Supreme Court. However, backing someone for the high court after opposing that person for a lower court would be harder to reconcile, making it unlikely that any of the 44 Republicans who opposed Judge Jackson would reverse course and support her now. All were well aware at the time that she was a future high court prospect. Three Republicans were absent.

Mr. Biden could also select Judge J. Michelle Childs of Federal District Court in South Carolina, who has been strongly endorsed by Representative James E. Clyburn, a powerful lawmaker from that state and the No. 3 House Democrat. If Judge Childs is the presidents pick, Mr. Graham and South Carolinas other Republican senator, Tim Scott, could face pressure to back her.

But home-state allegiance is no guarantee. Senator Michael Bennet, Democrat of Colorado, opposed the Supreme Court nomination of Justice Neil M. Gorsuch, a Colorado native, even though the senator introduced him at his confirmation hearing.

Justice Gorsuchs case is instructive. Though very conservative, he was the sort of highly experienced, pedigreed and qualified candidate a Republican president could have put forward in the past with the expectation that he would receive a strong show of support in the Senate despite ideological differences.

But since Justice Gorsuch was filling the seat held open by the nearly yearlong blockade of Judge Garland and had been nominated by Mr. Trump, most Democrats balked. Just three voted for his confirmation. Only one, Senator Joe Manchin III of West Virginia, remains in the Senate; he was also the sole Democrat to vote for Justice Kavanaugh.

Another potential nominee with a Senate voting history is Judge Wilhelmina M. Wright of Federal District Court in Minnesota, who was confirmed on a 58-to-36 vote in 2016. Thirteen Republicans voted for her, and five of them remain in the Senate today, including Senator Mitch McConnell of Kentucky, the minority leader. But a vote for a district court nominee does not equate to a vote to place a person on the highest court.

Even before the nominee is known, it is clear the outcome in the Senate is most likely to be highly partisan, with the candidate receiving a few Republican votes at best and perhaps none at all. For a country torn apart by partisanship and a court struggling with its image and credibility, that is far from an ideal outcome.

I really think it would be harmful to the country to have a repeat of what we saw with the last two nominees being so narrowly confirmed, Ms. Collins said. I just dont think that is good for the country, nor the court.

Originally posted here:
Bitterness From Supreme Court Fights Hangs Over Coming Nomination - The New York Times