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President Trump and first lady Melania Trump pay their respects to the late Justice Ruth Bader Ginsburg on Thursday. The looming fight over her replacement threatens further damage to our democracy, writes Troiano.
Court fight warning: Break the doom loop or it will soon break us
Sep 25 2020
Troiano is executive director of Unite America, which promotes an array of electoral reforms and helps finance other advocacy organizations, and political candidates, with a commitment to cross-partisanship. (It is a donor to The Fulcrum.)
<p>The battle over the replacement for the late Justice Ruth Bader Ginsberg represents the next step, albeit a significant one, in a trend of political escalation that threatens the very foundation and functioning of our democracy.</p><p>Our political system is caught in a "doom loop" of partisanship and polarization, as both major parties trade long-term institutional stability for short-term political gain in what they rationalize as a fight for the soul of our country.</p>
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<small class="image-media media-caption" placeholder="Add Photo Caption...">How America's two-party doom loop is driving division</small>
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<p>If it continues, the doom loop will break our country in half — unless we act to break it first.<br></p><p>Both political parties have played a role in the ongoing tit for tat over judicial confirmations. In 2013, when Democrats controlled the Senate, they invoked the "nuclear option" and eliminated filibusters against lower federal court nominees so they could be confirmed with slim party-line majorities. And the Republicans now in charge are set to up the ante by violating a precedent they set themselves four years ago with regard to considering Supreme Court nominations in presidential election years.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Should Republicans succeed in confirming a new justice this fall, Democrats will feel even more emboldened –– if they win control of the Senate and White House –– to pursue ideas some are already floating, from "packing the court" with additional, and likeminded, justices to packing the Senate itself by admitting the District of Columbia and Puerto Rico as reliably Democratic states. </p><p>Then, all bets would be off. </p><p>A Republican Party that retains a geographical and political advantage in both the Senate and the Electoral College could surely respond in kind in 2022 and 2024. Nothing, for example, forces the Senate to confirm any president's Supreme Court nominations. Nothing even forces Congress to fund the Supreme Court.</p><p>Ultimately, we can only have a democracy if some things matter more than winning power in it. The norm of political forbearance, as Steven Levitsky and Daniel Ziblatt explained in "How Democracies Die" (Crown, 2018), requires self-restraint on the exercise of political power even if one has the legal right to do so. "Democracies cannot work without it," <a href="https://www.nytimes.com/2018/01/27/opinion/sunday/democracy-polarization.html" target="_blank">they write</a>. Nor can they long survive. </p><p>The doom loop will continue to spiral out of control, if not for the intervention of courageous leaders and different incentives.</p><p>The most immediate way to at least slow down the doom loop is for a group of at least eight senators –– four Democrats and four Republicans –– to join as a bloc that can effectively deny either party an outright majority on any norm-busting maneuvers moving forward. </p><p>Right now, that could mean: no one confirmed for the Supreme Court before the election, and no court packing after the election. In a new session starting next year, that could mean: new Senate rules that restore deliberation and compromise, including reforming rather than abolishing the filibuster. </p><p>The most effective way to actually break the doom loop, however, would be enacting nonpartisan reforms to our electoral system that can fundamentally change governing incentives by increasing political competition, participation and accountability.</p><p>Political scientist Lee Drutman, who coined the doom loop phrase, <a href="https://www.vox.com/2020/1/23/21075960/polarization-parties-ranked-choice-voting-proportional-representation" rel="noopener noreferrer" target="_blank">explains</a>: "We are now in an era in which we have two truly distinct national parties, organized around two competing visions of national identity. It works against, not with our political institutions." </p><p>Over the last several decades, the two dominant parties have sorted themselves along clearly contrasting dividing lines –– demographically, geographically and ideologically. This stark set of binary splits has reinforced zero-sum politics, in which any kind of compromise is betrayal and the other side is not just wrong but evil. </p><p>Politicians have every incentive to raise the stakes even higher in order to get attention, raise campaign money and then win the votes to build their own political power, because most of them are largely insulated within their own parties and only face competition from their respective extremes.</p><p>The only way to change how our leaders behave is to change how they are elected.</p><p>For example, the most obvious and popular electoral reform, though far from the most powerful, is to end partisan gerrymandering –– thereby creating more competitive districts in which more voters will matter and voters can hold their leaders more accountable. Many states have already implemented independent redistricting commissions, and Congress could act to mandate their use nationally.</p><p>There are a range of other reforms –– from eliminating partisan primaries to implementing <a href="http://thefulcrum.us/ranked-choice-voting" target="_self">ranked-choice voting</a> –– that could have an even more powerful impact on the incentives of our leaders. While there is no silver bullet reform, any hope of de-escalating continuing political retribution will require politicians to reconsider how to achieve what is obviously most important to them: how they get elected.</p><p>The time for political reform is not after the next big fight; there will always be another to come. The time for reform is now. What hangs in the balance is not a single Supreme Court seat, but the legitimacy of our entire experiment of democratic self-governance.</p>
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A new court should settle disputes between Congress and the president
Aug 18 2020
Coleman was an assistant Missouri attorney general and Republican congressman from 1976 to 1993. Now retired as a lobbyist, he is an advisor to Protect Democracy, an anti-authoritarian watchdog group.
<p>One of American democracy's bedrock precepts is that no one, not even the president of the United States, is above the law. The principle was confirmed this month by the D.C. Circuit Court of Appeals, when it reversed a lower federal court's ruling and said Congress has the authority to go to court to enforce subpoenas of executive branch officials. </p>
<p>Unfortunately, from a practical standpoint, the long and time-consuming road of judicial decision-making may have rendered the matter moot — allowing President Trump to run out the clock beyond the election.</p>
<p>The clock started running a seeming eternity ago, in March 2019, when the House Judiciary Committee began an investigation into alleged misconduct by Trump and his close advisors. The investigation followed up on special counsel Robert Mueller's report on the investigation into Russian interference in the last presidential election. </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>During the investigation, Mueller interviewed Donald McGahn, who was then serving as White House counsel. The Mueller report concluded that impeachment was the mechanism to address whether Trump impermissibly coordinated with the Russian government in connection with the election or obstructed justice in the course of the special counsel's investigation. </p>
<p>When McGahn refused the Judiciary Committee's invitation to testify, the panel issued a subpoena in April ordering McGahn to appear one month later, to testify and produce documents. Trump directed McGahn not to appear, claiming presidential advisors were "absolutely immune from compelled congressional testimony." After all attempts to negotiate McGahn's appearance failed, the House filed a lawsuit in federal court last August to enforce its subpoena.</p><p>Here's how the litigation proceeded, in four steps: </p>
<p>The District Court rejected McGahn's claim, directing him to appear before the committee. Then McGahn appealed that decision to the D.C. Circuit, where a divided three-judge panel found that he did not have to testify.</p>
<p>At that point, the appeals court granted the Judiciary Committee's petition to have all the judges on the court review the case. Then the full D.C. Circuit heard oral arguments and ruled 7-2 that the legislative branch has the legal standing to try to use the judicial branch to force the executive bench to comply with subpoenas.</p>
<p>That's where things stand now: Seventeen months after the initial request for testimony — six of those months after Trump was acquitted at the Senate trial that resulted from articles of impeachment drafted in the House Judiciary Committee — one more step of litigation, an appeal to the Supreme Court, is still possible.</p><p>The McGahn case is just the freshest illustration of how time consuming interbranch litigation can be, often resulting in a final resolution many months or even years after the dispute started — with the political and governing process continuing all the while. Any wrongdoing by a president and his aides is allowed to continue unabated. A Congress lasts only two years, making it likely this one will conclude in early January before the House can obtain judicial enforcement of its subpoena.</p><p>Trump's categorical direction to members of his administration — that no member of the executive branch shall cooperate with the impeachment investigation — not only assured litigation, but more importantly was also an effective stalling tactic. </p>
<p>The flagrant abuse of a constitutionally prescribed process must be addressed by Congress to assure that, in future litigation between the branches, the judicial system will not allow another bedrock principle of American democracy to become lost in the process: Justice Delayed is Justice Denied. </p><p>It is wrong to require Congress to repeatedly undertake a patently flawed judicial process to assure our constitutional checks and balances are not rendered obsolete. The current system produces a no-win situation for the rule of law. That's why Congress should pass legislation creating a new type of federal court — one with exclusive jurisdiction over, and focused solely on, disputes between the federal government's branches. </p>
<p>This special court is especially needed to handle future instances of Congress pursuing an impeachment. </p>
<p>The legislation should expedite the litigation process in such cases, allowing direct appeal of the court's ruling to the Supreme Court, and set special rules of procedure. It should also give consideration to spelling out when it's appropriate for the new court to abandon the general rule that so-called "political questions" are beyond the purview of the federal courts.</p>
<p>Failure to adopt meaningful changes in this process will only invite more non-compliance by a president faced with lawful inquiries by Congress. To condone an administration's wrongdoing is to encourage more of it and to give up on the rule of law and our democracy.</p>
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Rhode Islanders will not be required to get witnesses to sign their mail-in ballots this fall.
Supreme Court upholds easier R.I. voting, breaking a string of rebuffs
Aug 13 2020
The Supreme Court for the first time on Thursday came down on the side of relaxing a burden on voting during the coronavirus pandemic.
But the justices made clear their decision — which will allow Rhode Islanders to vote absentee without a witness this fall — was a purposeful exception to their reasoning in an unbroken string of seven rulings since the spring, each of which has kept the exercise of democracy difficult in the face of a public health crisis.
Unlike the other cases, where a state was fighting easements to its rules, Rhode Island officials had already agreed to settle a lawsuit by relaxing its unusually strict mail-in requirements for the September primary and general election. That left the Republican Party, which sued to reverse the deal on the grounds it would promote election cheating, no legal leg to stand on, the court said.
<p>Unlike "similar cases where a state defends its own law, here the state election officials support the challenged decree, and no state official has expressed opposition," the court's unsigned order said. "Under these circumstances, the applicants lack a cognizable interest in the state's ability to enforce its duly enacted laws."</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Three of the most conservative justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — said they would have granted the GOP's appeal.</p><p>Rhode Island requires voters mailing their ballots to sign them in front of two witnesses or a notary public, verification requirements matched in difficulty by only a handful of other states.</p><p>Gov. Gina Raimondo suspended the requirement for the June presidential primary, saying it would wrongly make people risk infection with Covid-19 in order to vote. When her fellow Democrats in charge of the General Assembly deadlocked on a bill keeping the suspension going for the year, a suit to make it so was filed in federal court by <a href="https://thefulcrum.us/directory/common-cause" target="_self">Common Cause</a>, the <a href="https://thefulcrum.us/american-civil-liberties-union" target="_self">ACLU</a> and the <a href="https://thefulcrum.us/directory/league-of-women-voters" target="_self">League of Women Voters</a>.</p><p>State officials agreed not to enforce the witness requirement in a consent decree finalized two weeks ago. That was when the GOP went to court, echoing President Trump's arguments about permissive mail voting being an invitation to fraud and asserting the change should have been produced by legislators instead of a lawsuit.</p><p>"Voters should never have to choose between their health and their right to vote. Democracy was upheld by today's decision," said the head of LWV in Rhode Island, Jane Koster. "Witness and notary requirements do nothing to improve the security of our elections, and now voters can cast their ballots free from the burden of fulfilling these requirements during a deadly pandemic." </p><p>One state with an almost identical mail-in verification rule is Alabama. In one of the earlier election cases this year, the Supreme Court did what the state government in Montgomery wanted and refused to consider an appeal arguing those witness requirements were excessively burdensome.</p><p>The other rulings from the high court have preserved the timetable for the Wisconsin primary during the initial peak of the pandemic, upheld strict excuse requirements for casting a mail vote in Texas, delayed the restoration of felon voting rights in Florida and preserved signature gathering rules for ballot measures in Oregon, Utah and Ohio.</p>
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Montana's tough donor disclosure law survives at Supreme Court
Oregon remapping bid dies at Supreme Court, now 0-7 on easing democracy during Covid
Aug 12 2020
The Supreme Court has extended its unbroken string of rulings against making it easier to be part of the democratic process during the pandemic.
The justices on Tuesday blocked a lower court's ruling that it should be easier for Oregon's redistricting reform advocates to collect signatures during the national health crisis. The decision means there won't be a referendum on the November ballot that would take the power to draw congressional and legislative maps away from the Democratic powers in Salem and turn it over to a new citizens' redistricting commission — the top goal of crusaders against partisan gerrymandering.
It's the latest of seven cases since this spring where the conservative-majority high court has ruled against groups seeking relaxed ballot rules because of the coronavirus. It has not ruled once in favor of such an effort.
<p>The group People Not Politicians had gone to federal court to seek permission to use the internet and the mail to gather the necessary 150,000 signatures on its ballot measure petitions, arguing the social distancing norms of Covid-19 made it impossible to comply with state's in-person requirements. It did not get exactly what it wanted, but instead a federal judge told Oregon to either accept as sufficient the 59,000 valid signatures the coalition had gathered by the July deadline or else extend the deadline until the middle of this month.<br></p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>The Supreme Court did not give any reasons for granting the state's request and blocking that decision, which is typical when the justices act on such emergency appeals. Justices Sonia Sotomayor and Ruth Bader Ginsburg said, however, that they would have upheld the lower court's relaxation of the rules.</p><p>Democratic Attorney General Ellen Rosenblum argued in her appeal that the lower court ruling "effectively rewrites the provisions governing how the Oregon Constitution can be amended through an initiative" and "threatens to enshrine permanently in the state constitution an amendment that does not meet state requirements."</p><p>Federal Judge Michael McShane of Eugene had described things very differently in his opinion five weeks ago.</p><p>"Because the right to petition the government is at the core of First Amendment protections, which includes the right of initiative," he wrote, "the current signature requirements in Oregon law are unconstitutional as applied to these specific plaintiffs seeking to engage in direct democracy under these most unusual of times."</p><p>The Supreme Court has issued six other orders in voting disputes since the Covid-19 outbreak began, in general relying on the court's own precedent that the judiciary should wade into fights over election procedures sparingly — especially when election day is near.</p><p>The most prominent decision was the first, one the eve of a Wisconsin primary, when the court ruled 5-4 along ideological lines to reverse a federal judge's order expanding the window for receiving absentee ballots. The result was that thousands of mailed-in votes arrived too late to be counted and were discarded.</p><p>The court has also:</p><ul class="ee-ul"><li>Rejected a bid by the Texas Democratic Party to force the state to allow no-excuse absentee voting for everyone because of Covid-19, on the grounds that opening the process wide only to voters older than 65 amounts to age discirmination.</li><li>Refused to make absentee balloting easier in Alabama until the end of the pandemic, keeping in place the requirement that mailed ballots include an affidavit signed by a notary or two witnesses.</li><li>Sided with state officials in Utah by blocking a lower court ruling that would have eased the requirements for getting an education-related referendum on the ballot during the health emergency.</li><li>Rejected an appeal to make Ohio accept electronic signatures from residents seeking to place voter initiatives — including one to raise the state's minimum wage and another making an array of election process changes — on the ballot this year. </li><li>Preserved an appeals court ruling preventing hundreds of thousands of convicted felons from voting in Florida, at least in next week's primary and possibly in November as well. The case precedes the pandemic, centering on a 2018 referendum restoring voting rights to felons after their probation and parole — but since complicated by a state law requiring them to also repay financial obligations.</li></ul><p>Redistricting typically occurs once every 10 years, right after the census details — down to the neighborhood — where the population has shifted, soared or shrunk. So the advocacy group in Oregon argued that its effort would be meaningless for an entire decade unless they got on the ballot in November.</p><p>With the Oregon effort now dead, Virginia and North Dakota are for now the only two states that will decide in November whether the next collection of maps will be crafted by independent panels. An effort to get a commission measure on the ballot is still alive in <a href="https://thefulcrum.us/redistricting/redistricting-reform-oregon-arkansas" target="_self">Arkansas</a>. On the other hand, Missouri voters will decide whether to undo a redistricting initiative enacted two years ago. </p><p>For now, 14 states are sure to use independent commissions to draw the next legislative districts lines, and eight will do so for congressional districts.</p><p>The effort to limit partisanship in Oregon's political mapmaking got started after the Supreme Court ruled 5-4 a year ago that federal courts are powerless to hear challenges to the practice — but said ballot measures would be a totally permissible way to curb such gerrymandering.</p>
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