Tag: Electoral College

The Unforgiven: Student Loans

4th of JULY RECESS, 2023

The Supreme Court Friday struck down President Biden’s $10,000-$20,000 loan forgiveness program, 6-3, in another conservative v. liberal opinion. The decision placed a spotlight on the “sharp debate” between the court’s “two best writers,” Chief Justice John Roberts, and Justice Elana Kagan, on the major rules doctrine, says Adam Liptak in The New York Times. 

Roberts’ opinion for the majority said that mass cancellation of a program of such significance requires clear congressional authorization. 

For the minority, Kagan wrote, “In every respect, the court today exceeds its proper, limited role in the nation’s governance.”

Challenge to the loan forgiveness program came from two borrowers, whom the court ruled do not have standing in the case, and six conservative states the court said do have standing, NPR reports.

Definition: The non-partisan Congressional Research Service’s In Focus defines the major questions doctrine thusly: “Congress frequently delegates authority to agencies to regulate particular aspects of society, in general or broad terms. However, in a number of decisions, the Supreme Court has declared that if an agency seeks to decide an issue of major national significance, its actions must be supported by clear congressional authorization. … The Supreme Court never used that term in a major opinion prior to 2022, but the doctrine has recently become more prominent.” (Emphasis CRS.)

Congress weighs in: Speaker Kevin McCarthy (R-CA) tweeted; “President Biden’s student loan giveaways is ruled UNLAWFUL. The 87% of Americans without student loan debt are no longer forced to pay for the 13% who do.”

Upshot: A bill codifying student loan forgiveness will go nowhere in the Republican-majority House, though simply by introducing such law, Democrats will hope to gain a lot of voter support in the coming election year.

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Website Developer Does Not Have to Design for LGBTQ+ – The Supreme Court ruled 6-3 in another conservative v. liberal split that the First Amendment bans Colorado from compelling a website designer to create expressive designs with messages with which the designer disagrees, according to SCOTUSblog. In 303 Creative LLC v. Elenis et. al. web designer Lorie Smith sought an injunction from forcing her to create websites celebrating unions not between a man and a woman.  

--TL

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SCOTUS Strikes Down Affirmative Action in Higher Ed

The Supreme Court’s conservative majority struck down affirmative action for higher education, saying race used as a factor in university admissions violates the 14th Amendment, in its decision released Thursday (The Associated Press). Chief Justice John Roberts, writing the majority’s opinion* said the court has long concluded wrongly (as recently as 2016) that the touchstone of an individual’s identity is not “skills built or lessons learned, but the color of their skin. Our constitutional history does not tolerate that choice.”

An organization arguing that affirmative action discriminates against Asian students brought cases against two universities in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard.

Justice Sonia Sotomayor wrote the minority opinion, saying the decision is not faithful to history, SCOTUS’ prior decisions and the facts of affirmative action, according to a report on NPR’s 1A. 

SCOTUS’ second Black justice, Clarence Thomas – long a critic of affirmative action – said the decision “sees universities’ admission (policies) for what they are; rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”

SCOTUS’ third Black justice (and first Black female justice), Ketanji Brown Jackson, called the decision “truly a tragedy for us all.”

*Correction: The decision regarding Students for Fair Adminssions v. Harvard was 6-2. Brown Jackson had earlier recused herself as she was a member of the board overseeing Harvard, prior to being sworn in to the Supreme Court.

Igniting social media: Justice Brown Jackson has "ignited social media" with this quote, according to NPR: "With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'color blindness for all' by legal fiat. But deeming race irrelevant in law does not make it so in life."

'Religious liberty' case: SCOTUS sided with an evangelical Christian postal worker who was denied a request to take Sundays off when the U.S. Postal Service wanted him to deliver packages on the sabbath. USA Today reports the court's 9-0 decision in Groff v. DeJoy was narrower ruling than religious liberty advocates had sought.

Remaining cases: SCOTUS expects to issue all remaining cases from the 2022-23 term by 10 a.m. Friday (per SCOTUSblog).

•What do you think? Hit the Comment section in the appropriate column, or email editors@thehustings.news. 

--TL

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SCOTUS Rejects Indy State Legislature Theory

The Supreme Court has rejected the Independent Legislature Theory with a 6-3 ruling that says state courts can overrule state legislatures’ power to regulate federal elections. The case brought by the Republican-dominated North Carolina legislature in Moore v. Harper sought to overturn the state’s supreme court rejection of a gerrymandered congressional map. The legislators argued the federal Constitution allows only state legislatures to rule on federal elections, and not state courts, reports NPR’s Nina Totenberg on All Things Considered.

Opponents of the Independent Legislature Theory feared a ruling against state courts would allow majority party legislators to choose Electoral College electors favoring their presidential candidate over the candidate chosen by popular vote. 

For the majority opinion, Chief Justice John Roberts wrote; “Although the Elections Clause does not exempt state legislators from the ordinary constraints imposed by state law, federal courts must not abandon their duty to exercise judicial review.”

Roberts was joined by two of three justices nominated by ex-President Trump, Amy Coney Barret and Brett Kavanaugh, as well as Justices Elana Kagan, Sonia Sotomayor and Ketanji Brown Jackson. Justice Clarence Thomas wrote the minority opinion and was joined by Samuel Alito and Neil Gorsuch. 

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While the center column of The Hustings joins Congress in taking its Fourth of July recess through July 9 (kind of), we will regularly update Supreme Court rulings through the end of June, and we will post your civil comments in the left and right columns. Go to the Comment section of the right or left column, or email editors@thehustings.news and indicate the side toward which you lean in the subject line.

--Todd Lassa

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NY Grand Jury Votes to Indict Trump

THURSDAY-FRIDAY 3/30-31/23

A Manhattan Grand Jury voted to indict the former president, Donald J. Trump in a case focusing on hush-money payments to adult film star Stormy Daniels, The New York Times, The Washington Post and Associated Press report. No details are yet known, as the indictment remains sealed, though AP reports that Trump is expected to surrender to authorities next week, according to an unnamed source. 

The indictment comes after Manhattan District Attorney Alvin Bragg told New York court officials that the grand jury would not be hearing further evidence for weeks, and other matters were on the panel’s agenda before the Passover holiday (WaPo).

Rep. Matt Gaetz (R-FL) was the first Congress member to comment WaPo says, tweeting “President Donald Trump always fought for us. He puts the American people above corrupt interests. For that reason alone, the powerful will never stop coming for him.”

Or… While House Republicans, with their wafer-thin majority will continue to echo Trump’s “Witch Hunt” response it remains to be seen whether Senate Republicans are ready to move on from 45 and repudiate supporters’ claims.

Perp Walk: Meanwhile, Trump already has said he wants to be cuffed (and martyred) for his supporters.

Bigger Indictments to Come?: On the other side, Democrats and never-Trump Republicans expect Fulton County, Georgia’s investigation into his efforts to alter the Electoral College and investigations in Washington, D.C., over his alleged involvement in the January 6th Capitol insurrection and for Mar-a-Lagogate, his handling of classified documents at his Florida home.

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Russia Holds WSJ Reporter – Wall Street Journal reporter Evan Gershkovich has been detained in Moscow on charges of “espionage” in the first such case involving a Western journalist since the Cold War. Gershkovich, 31, is a Russian speaker whose parents emigrated to the U.S. from the Soviet Union. Secretary of State Antony Blinken said the U.S. seeks immediate consular access to Gershkovich so that it can provide consular support, The Wall Street Journal reports. 

--Compiled and edited by Todd Lassa

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...meanwhile...

WED 3/29/23

Pence Must Testify, But – U.S. District Judge James Boasberg has ruled that former Vice President Mike Pence must testify before prosecutors in the investigation of former President Trump’s efforts to overturn 2020 election results. While the sealed decision, reported by several news outlets including The Washington Post rejects executive privilege for Pence, the judge upholds Pence’s claim of legislative privilege, which means he will not be compelled to give testimony over his role in the formal count of Electoral College votes January 6, 2021, as president of the Senate.

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Blame Bank Execs, Not Regulators – Regulators warned Silicon Valley Bank of interest rate and liquidity risks before the bank failed in March, Federal Reserve Vice Chairman Michael S. Barr told the Senate Banking Committee Tuesday, Roll Call reports, where Republicans and at least one Democrat sought to blame the regulators. 

Barr told the Senate committee that it is not regulators’ job, but of the bank’s board and senior management to fix such problems, according to Marketplace.

Wednesday: The House Financial Services Committee holds its first hearing on SVB and Signature Bank failures.

--TL

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MON-TUE 3/27-28/23

UPDATE II: Prime Minister Benjamin Netanyahu appeared on Israeli television Monday night to say he is postponing the vote on judicial reform by one month (NPR).

UPDATE: Sources tell Israel's Haaretz that Netanyahu is expected to freeze judicial overhaul following protests over Defense Minister Gallant's firing.

Another Democracy in Peril? – Prime Minister Benjamin Netanyahu’s (above) right-wing coalition government is debating whether to delay judicial changes that have sparked civil protest in Israel, The New York Times reports. Worker stoppages have spread throughout the country over the weekend, with the national trade union calling for a strike, which has blocked flights from Ben Gurion airport. Netanyahu last weekend sacked Defense Minister Yoav Gallant, who objected to the government’s attempt to give itself greater control over Supreme Court judge selection and to limit the court’s authority over Israel’s parliament. 

Netanyahu, once a “staunch defender” of a strong, independent Supreme Court, according to the NYT, is standing trial on corruption charges. Netanyahu’s Likud party-based coalition government risks collapse if he delays judicial control.

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In Waco, Texas – From the kick-off rally to former President Trump’s 2024 presidential campaign, as covered by Politico:

•”Man, he’s dropping like a rock. … They keep saying ‘DeSanctus’ could do well with farmers. I don’t think so. Based on polls, he’s not doing well with anything.”

•The “biggest threat” to the U.S. isn’t China or Russia, but “high level politicians that work in the U.S. government like McConnell, Pelosi, Schumer and Biden.”

Despite Donald J. Trump’s concentration on “grievance” politics, he did make a few campaign promises, Politico reports:

•Mandatory term limits.

•Keeping “men out of women’s sports.”

•Ending “the invasion of the Southern border.”

•End the war in Ukraine and prevent “World War III.”

Meanwhlie: The Trump-Fox News relationship, bumpy to say the least over the last year or so, takes a “warmer turn” when Sean Hannity interviews the former prez Monday night, The Hill says.

•••

This Week – The Senate and House are in session Monday through Thursday. The Senate only is in session Friday. Spring break begins for both chambers next week.

--Compiled and edited by Todd Lassa

JOIN THE CITIZEN PUNDITS’ BRIGADE: email your COMMENTS to editors@thehustings.news

Four Criminal Referrals for Trump

By Todd Lassa

The House Select Committee to Investigate the January 6th Attack on the United States Capitol has issued to the Justice Department four referrals for criminal charges against former President Donald J. Trump over attempts to overturn the 2020 election. The charges did not include seditious conspiracy, the charges for which two Oath Keepers, including founder Stewart Rhodes III, were found guilty last month for their involvement in the attack. 

The charges are: I.) Obstruction of an official proceeding; II.) Conspiracy to Defraud the United States; III.) Conspiracy to Make a False Statement; and IV.) “Incite,” “Assist,” “Aid or Comfort” an insurrection.

The fourth referral, if prosecuted by the Justice Department, would prevent Trump from running for any federal or state office.

“He is unfit for any office,” committee Vice Chairwoman Liz Cheney (R-WY) said.

John Eastman, the attorney who allegedly advised Trump that Vice President Mike Pence could reject the Electoral College results on January 6, also was named in the referrals. All referrals may be applied to “others” identified in the Justice Department’s investigation, panel member Adam Schiff (D-CA) noted in comments to reporters after the hearing.

Additionally, four Congress members will be referred to the House Ethics Committee for ignoring subpoenas to testify before the 1/6 committee, Rep. Jamie Raskin (D-MD) said. They are Reps. Kevin McCarthy (R-CA), Andy Biggs (R-AZ), Jim Jordan (R-OH) and Scott Perry (R-PA), Roll Call reports. A fifth, Rep. Mo Brooks (R-AL) is retiring and was left out of the referrals.

The House Ethics Committee currently has four Democratic and four Republican members, NPR says, and is unlikely to take actions against the four members before a new Congress convenes next month. 

Rep. Zoe Lofgren (D-CA) said the panel has evidence of attempted witness tampering. An attorney for Trump told a witness to say under testimony that she didn’t “retain facts” and in exchange would be offered a job that “would make her very comfortable.” 

In his post-hearing comments, Schiff said there was evidence that some witnesses may not have been completely forthright with the committee. Asked whether the panel has evidence backing star witness Cassidy Hutchinson’s second-hand testimony that Trump physically attacked a Secret Service agent who would not drive him to the Capitol as the insurrection began 

 https://thehustings.news/surprise-witness-cassidy-hutchinson/

Schiff said; “I found Cassidy Hutchinson’s testimony to be entirely credible and I leave it to you to assess the witness’ credibility.”

The 1/6 committee released the first part of its final report here:

 https://january6th.house.gov/report-executive-summary

The panel will release the full report before the end of this year, Committee Chairman Bennie Thompson (D-MS) said.

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COMMENTS: editors@thehustings.news

It’s Trump’s Party and He’ll Run in ’24 if He Wants to

By Todd Lassa

Judging from the crowd reaction at the 2021 CPAC “America Uncancelled” gathering, and from the large-ish group of the former president’s supporters outside the Orlando Hyatt convention hall, Donald J. Trump has already won the 2024 presidential election, just as he “won” last November. 

“I will continue to fight right by your side,” Trump told the adoring crowd at the beginning of his nearly two-hour speech to the Conservative Political Action Conference. “We’re not going to start a new party. We have the Republican Party. Wouldn’t that be brilliant? Let’s divide our vote. We’d never win again.”

This was the Sunday evening keynote, if that term applies to a speech in which ex-President Trump returned to familiar gripes and lies, specifically a repeat of how he really won a “stolen” election last November.

He called out the U.S. Supreme Court twice, at least, for refusing to hear challenges to the election results, including Texas’ suit against 18 states whose Electoral College votes went to Joseph R. Biden.

He repeated his attacks on Democrats, this time amping up the rhetoric such that they aren’t merely promulgating socialism but full-on communism. Trump slammed President Biden’s “failed” first month in office for many issues, including the dismantling of the former president’s draconian immigration policy and immediate stop on construction of the southern border wall on Mexico, making this policy look like the corollary to President Obama’s Affordable Care Act, which he spent four years unsuccessfully trying to kill. 

Trump promised to challenge the 10 Republican representatives in the House who voted to impeach him last January (singling out Liz Cheney, the “warmonger” from Wyoming) and seven Republican senators who voted to convict him last month, in their next primaries, and crowed about how his endorsement of Sen. Mitch McConnell, R-KY, (whose mention garnered a healthy round of “boos”) pushed him to re-election victory.

In the end, former President Donald J. Trump lit up the crowd with this: “We have to have triumph. We must have victory. That is exactly what we will do. We will go on to victory. We’re tougher than they are. We’re stronger than they are.” 

“And then a Republican president will make a triumphant return to the White House,” Trump continued. “And I wonder who that will be. … I wonder who that will be. … Who, who, who will that be.” It wasn’t a question.

It most likely will not be Sen. Ted Cruz, R-TX, who appeared in the opening hours of CPAC last Friday to joke about how nice is was to be in Orlando, though “not as nice as Cancun.” 

Cruz did not make CPAC’s straw poll of 2024 presidential nomination candidates, which Trump captured with 55% of the vote, The Hill reports. Florida Gov. Ron De Santis was next with 21%, and South Dakota Gov. Kristi Noem grabbed 4%. And 95% of CPAC attendees said they want the GOP to continue Trump’s not-consistently conservative populism. (Click on Forum for the complete straw poll results.)

Which raises the question of how much of today’s GOP CPAC represents. Interviewed on CNN after Trump finished to the sounds of The Village People’s “YMCA,” (Fox News followed the speech with highlights of the speech), the ex-president’s national security advisor from 2018-19 and former Fox News contributor John Bolton, described the former president’s speech as “like watching an old movie, very stale … or TV reruns.”

Of Trump’s straw poll showing of 55% Bolton said, “that is a pathetic figure. I would expect 90%. That is an indication of how much he’s fallen already.”

How much has Trump fallen? On one hand, CPAC’s traditional role as representing the right edge of the Republican party could be seen as a misrepresentation of Trump’s continued popularity within the party (several pundits have remarked that Sen. Rand Paul, R-KY, has won the straw poll in the past, twice). On the other hand, no former Republican president has ever before bothered to even show up for the event a month after his successor’s inauguration. 

It seems to all come down to what happens in the next 21 months. If Trump’s candidates beat “un-loyal” Republicans in next year’s congressional primaries, and then go on to beat Democrats in the November 2022 mid-terms, Trump might be on his way to a third presidential nomination. If none of that happens, McConnell and the traditional Republicans may prevail. 

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Read the full list of CPAC’s presidential candidate straw poll — click on Forum.

Minority Party Holds on to Power with the Electoral College

By Chase Wheaton

The Electoral College is a relic. A fossil of sorts. An outdated artifact that belongs in history books, only, and an archaic remnant of our original democracy, where the only light came from candles and news was delivered by horse-drawn carriage. And it’s about time we update our presidential election process to be aligned with the 21st century needs of our country and its citizens.

The original reason for the Electoral College’s existence is not relevant anymore. In the late 18th century, when the Electoral College was created, it was uncommon for the average American to be fully literate, and the means of communication that existed were much slower and more limited, making it exponentially more difficult for that common citizen to be informed and educated about the candidates running for president. Therefore, our founders deemed it appropriate to establish the Electoral College as a group of upper-class elites that were meant to use their education and knowledge to vote for who they thought to be the most qualified candidate for office. In fact, originally in presidential elections, Americans voted for an elector who was then free to debate, discuss, and vote for whichever presidential candidate they felt was most qualified for office, and it wasn’t until many decades later that Americans were able to vote directly for the presidential candidate of their choice, who then still needed to be formally voted for by the electors of that state. In the 21st century, however, with national news media, 24/7 access to information through television, social media, and the Internet, and our current education system, it’s absurd to believe this system still has a place in modern-day democracy.

If the history behind it doesn’t convince you, mathematically speaking, the Electoral College simply isn’t fair, and it does away entirely with the principle of “one person, one vote.” Take Wyoming, California, Florida and Texas for example. By doing some quick math with populations and numbers of electoral votes, you’ll find the ratio of people per electoral vote for each state, and you’ll see quite the disparity. Wyoming, for example, gets one electoral vote for every 192,920 people, but California gets one for every 718,182 people, Florida gets one for every 740,690 people, and Texas gets one for every 763,157 people. That means that one person in Wyoming has 3.7 times more voting power than someone in California, 3.8 times more voting power than someone in Florida, and 4 times more voting power than someone in Texas. The numbers don’t lie, and these numbers show us that the Electoral College diminishes the voices of Americans that live in more populous states during presidential elections, while unfairly amplifying the voices of those living in less populated states.

Facts and history aside, even public opinion supports abolishing the Electoral College. A Gallup poll released in September 2020 shows that 61% of Americans support amending the Constitution to abolish the Electoral College and instead use the national popular vote to determine the winners of our presidential elections. Unfortunately, if you dive deeper into the results of this poll, you’ll see a deeply partisan divide that spells out a longer future for the Electoral College than most Americans would seemingly like. While an overwhelming 89% of Democrats wish to abolish the Electoral College, only 23% of Republicans would like to do the same, and sadly, the reason for that couldn’t be clearer. If we abolished the Electoral College and used the national popular vote to select our president and vice president, the current GOP would never again win another presidential election unless they realigned their values and beliefs to be more representative of those of modern-day America.

So, unless we expect the GOP to relinquish its hold on American politics in favor of progress (which seems as likely as fish learning to fly), we can expect to continue seeing the Electoral College rear its ugly head every four years. Still, we eventually transitioned from candlelight and horse-drawn-carriage to light bulbs and cars, so in time, I believe we’ll see the progress that Americans want.

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Click on “Forum” to read Stephen Macaulay’s commentary on former President Trump’s ethics policy.

The Lessons of Electoral Reform: Becoming President Should be Hard

By Nic Woods

It seems the Electoral College has no friends these days. 

Whether on the left (miffed as popular vote winners have not always become president) or the right (who seem to have forgotten that this system allows them to punch well above their weight, power-wise) everyone seems to want to dump the Electoral College into the garbage and set it on fire, including members of the Electoral College themselves.

Not so fast.

The Electoral College is misunderstood, mostly because we still put so much weight on what the framers of the U.S. Constitution originally intended, but not enough weight on what those framers would not have possibly understood.

Whatever the framers intended, it may not necessarily extend to, say, electric vehicles, as even Ben Franklin had not so much as envisioned horseless carriages or enough available electricity to juice up an electric vehicle, much less a fleet of them. 

They may have been brilliant men for their time, but their imaginations were limited to what they knew, so they created systems that could be changed to reflect a future they could not envision.

Americans tend to conveniently forget that.

The Constitution can be, and has been, changed. It is difficult, but not impossible. The parts of the Constitution that address the Electoral College has been changed a couple times – once with the ratification of the 12th Amendment in 1804, and one other time since, as any book with the actual Constitution in it strikes out part of that amendment.

The first step here is to admit that the Electoral College, as envisioned and even as amended, may still be outdated. Much of the assumptions embedded into it no longer hold true – that suffrage is limited to white male landowners, there are no political parties, that the redistricting process is not gamed by one party or the other to benefit it, that only the best men run for office, and they must rely on regional publishers to promote them, as self-promotion is too gauche.

Despite all that, the Electoral College has only failed to reflect the popular vote four times in our history – 1876, 1888, 2000 and 2016 – a pretty good track record for an outdated concept.

Valid arguments say there is no reason to throw it out completely, but there are plenty reasons to drag it into the 21st Century and make changes that reflect near-universal suffrage and gerrymandering, as well as offset greater partisanship, a national but hyper partisan media landscape, misinformation and disinformation. 

While the Electoral College needs to be reformed, most of us do not understand enough about it to know where to start. The next step could point toward raising the bar to become president just a bit higher. 

Any Electoral College reform should encourage a candidate to work for every vote, whether it is from an urbanite, suburbanite, or exurbanite, from a swing state or a state that solidly votes for one party or another. This would require states to eliminate gerrymandering. To date, 32 states already have “faithless elector” laws (15 of them with the teeth to punish) that prevent their electors from going off-script. The U.S. Supreme Court has declared these faithless elector laws constitutional, they should be easy to spread to the remaining 18 states.

Alexander Hamilton, in The Federalist Papers, advocated for a “vigorous” executive. One way to figure out how vigorous a future president will be is to support a system that will make him work to earn his office.

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Sources:
“Meet the Electoral College’s Biggest Critics: Some of the Electors Themselves” — The New York Times, July 6, 2020
“Supreme Court Rules State ‘Faithless Elector’ Laws Constitutional” — NPR, July 6, 2020
The U.S. Constitution Explained – Clause by Clause – for Every American Today, Annotated by Ray Raphael
The Constitution of the United States of America
The Federalist Papers No. 68
Heather Cox Richardson’s History & Politics Chat, July 7, 2020
“Beau of the Fifth Column” Let’s Talk about the electoral college, power and Jules Verne

Kill the Electoral College, but Caution with Other Voting Reforms

By Andrew Boyd

The present zeitgeist would seem to insist I tie this discussion of the Electoral College (EC) to the recent and ongoing fervor surrounding the Game Stop short squeeze and subsequent misbehavior of retail stock merchants like Robinhood that we might uncover at the behest of their governmental and institutional overlords, a.k.a the Sheriff of Nottingham (yes, AOC and Cruz, you’re right, we need hearings).

Indeed, the tale of Robinhood speaks to the metanarrative of our time: The struggle between institutional elites and the little guy. The Framers of our Constitution were, in the context of a tyrannical British Empire, the little guys, trying to bind together a fragile union of merry men with competing visions for the future of a nascent republic. Their answer to this challenge involved imperfect compromises, including the establishment of the EC.

The EC and other proposed solutions, including a president chosen by Congress, were also a reflection of their deep distrust of the mob, and associated concerns that unalloyed democracy would lead to mob rule. These men, it could be argued, were elites in their own right, holders of power and property with a real distrust of the capacities of the common man to make wise and informed decisions, held in check, theoretically, by the power of “faithless” electors, which isn’t really a thing any longer.

Lots of stuff has changed, including many things the Framers couldn’t foresee, like the dissemination of information via the internet -- the democratization of knowledge as it were -- or the attempts at oligarchical control of same by an elitist cadre of tech bros whose motivations, I fear, aren’t so much political as they are avaricious.  

Just like the Framers, we, as a people, need to contend with the issues of our times with careful regard for how we reconstitute our union in order to preserve its essential and foundational constructs – individual freedom (rights) and individual accountability (responsibility to one another constituted in a law equally applied).

Down to it, then: what to make of the EC in the context of our times?  On a mathematical level, the EC would seem to confer outsized power to some individuals based on their geographic location. For example, the 2016 U.S. census estimates California has 26.65 million voting-age citizens, while Nevada had 1.41 million.  Dividing those voting age populations by the number of electoral votes in each state (35 and 6, respectively) states yields 716,000 (voting age people/EC vote) for California and 235,000 for Nevada. So, a Nevadan has more than three times the voting power of a Californian. That doesn’t strike me as particularly democratic.  

It’s often argued that the EC exists in part to preserve the rights of the minority, which would be the thing you place on the other side of the scale. But is geography, in our age, a reasonable stand-in for minority interests? At a gut level, I don’t see it. 

Am I thrilled at the possibility that abolishing the EC will lead to hegemony Democratic power, or that it will subject me to the whims of coastal elitist or worse yet, global bureaucratic, overlords? Hardly. But we stand on principal, or we stand on nothing, and principles built to achieve a desired outcome are not principles at all. On that basis, I can’t honestly mount a defense for the EC.

What I will beg and plead for my more left-leaning but still classically liberal friends to consider is whether the current trajectory of streamlining voting processes, including mass mail-in balloting and increasingly lacking security measures, might be a more pressing danger to the preservation of our republic.

I’ll state emphatically here how abhorrent I found the events in the Capitol on January 6. But the dissolution of clear, common-sense and consistently observed rules and standards for the election of a president is, I fear, the ground in which the more generalized sense of disenfranchisement now grows.  

We all have within us some essential sense of what’s fair and what’s not, which is at the heart of this as well as the Game Stop saga and all the great human stories across all human existence. If winning is all, and if the rules of the game can be shaped altogether according to the desires of the victor, the inevitable outcome is a growing resentment and, ultimately, unwillingness to play the game. Proceed with all due caution. 

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Click on “Forum” to read Stephen Macaulay’s commentary on former President Trump’s ethics policy.

The New Boss

By Stephen Macaulay

When people get new jobs, and they happen to be at upper management or executive positions, they like to change things to make it more in line with how they do things. For example, I once had a new boss who detested paper clips and demanded that everything be stapled. While that seems like not a big deal, it surely was to those who had spent years accumulating paper clips.

So imagine what happens when you become the President of the United States and have the ability to do things somewhat more substantive than determining when breaks can be taken or expense reports filed or whether transoceanic trips can be flown in Economy Comfort rather than steerage. New bosses have lots of power.

Joe Biden is the new guy. He wants to do things his way. After all, he did win the election. (Guess I might have stuck “Spoiler Alert” at the beginning of this paragraph.) One of his biggest priorities is to reverse the Trump administration’s harsh initiatives that put restrictions on immigration. 

Recently departed President Trump tried to prevent counting non-citizens in the 2020 Census. As a result, the Trump administration has delayed the census count past its Constitutionally mandated due date. While it may seem odd, not counting non-citizens violates Article 1, Section 2, Clause 3 of the Constitution. Yeah, that Constitution. The resulting delay of the count past the Census Bureau’s December 31 deadline also means state Electoral College vote numbers and House of Representative districts cannot be apportioned.

Another Biden administration executive order also ends the “Muslim” travel ban. This called for restricted travel and immigration from Syria, Iran, Iraq, Sudan, Libya, Somalia Yemen, Eritrea, Nigeria, Myanmar, Kyrgyzstan, and Tanzania. Not specifically a “Muslim” travel ban, it was one with a wink. Do you think that were there not such a restriction, people from those countries would have been at the Capitol in numbers on January 6?

Biden’s easiest EO puts a hard stop to building The Wall. According to FactCheck.org, as of late December 2020, of the 438 miles of the “border wall system” built under the Trump administration, “365 miles of it. . .is replacement for primary or secondary fencing that was dilapidated or of outdated design. In addition, 40 miles of new primary wall and 33 miles of secondary wall have been built in locations where there were no barriers before.” My math has it at 73 miles. Given the number of times that Trump mentioned The Wall you might imagine there’d be more. There isn’t. There was a lot that was said during the past four years that was Fake News. Much of it from 1600 Pennsylvania Avenue. Spoiler alert: Trump lost Pennsylvania in 2020.

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Other first-day executive orders:

  • 100 Days Masking Challenge. With over 403,952 dead of COVID-19—no, it didn’t “just disappear”—let’s stop making this partisan. Viruses don’t vote. So asking all Americans to wear a mask and for enforcement on federal properties, it is an acknowledgement that it is still a massive problem—a fatal, massive problem.
  • Create the Directorate for Global Health Security and Biodefense. Remember when Trump was whining about how Obama dealt with the 2014 Ebola epidemic? Well this position was created by Obama, and like many things done by that administration, eliminated by the Trump administration. How did that work out? See above.
  • Rejoin the World Health Organization. Maybe it was snowed by China. And if we’re talking about being snowed: remember the chest thumping after the U.S. China Phase One trade agreement was put into effect? According to the Peterson Institute for International Economics, through November 2020, “China’s year-to-date total imports of cover products from the United States were $86.9 billion, compared with a prorated year-to-date target of $153.8 billion. Over the same period, U.S. exports to China of covered products were $82.3 billion, compared with a year-to-date target of $141.7 billion.” That’s one hell of a dealmaker. As for the WHO specifically: viruses don’t carry passports. They get fought globally. Or they do far more damage than they otherwise would.
  • Extend eviction and foreclosures moratoriums. This is a multiagency lift. Had the pandemic been addressed early on, perhaps this wouldn’t be necessary. It wasn’t. This is.
  • Pause student loan payments until September 30. Again, see previous.
  • Rejoin the Paris Climate Accord. If Ford Motor Company — a major U.S. corporation that sells hundreds of thousands of pickup trucks every year—thinks climate change is real and that the Paris Accord is worthwhile, isn’t it?
  • End the Keystone XL pipeline. Check the price of gas at your local station. The Biden administration also wants to reverse the decisions that turned over what had been national monuments in places like Utah and Maine to development. Seriously: Once they’re developed they’re done.

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Cracked Lens of the Shining Beacon

By Stephen Macaulay

At 3:44 am, January 7, 2021, Vice President Mike Pence, President of the Senate, took the gavel in hand and closed the joint session of Congress that certified the election of Joe Biden and Kamala Harris as the President and Vice President of the United States.

Was anyone surprised at the outcome?

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“Schoolhouse Rock” Revisited

The process is one that most of us probably missed during “Schoolhouse Rock”: the procedure for certifying the presidential election. The Electoral College was established under Article II and Amendment 12 of the U.S. Constitution. States choose electors based on the results of the general election. 

The electors create what are known as Certificates of Vote, which are sent to Congress, which then sits in joint session to certify the election.

There is a second place they are sent: The Office of the Federal Register (OFR), which is under the National Archives and Records Administration.

The OFR puts these electoral documents on public display for a year. Then they go to the Archives of the United States.

You might wonder why there is this tutorial.

Several reasons.

To point out to some people who were involved in Wednesday’s national embarrassment that there is a U.S. Constitution. That there is a careful process of certification. That this entire procedure is part and parcel of what has made the United States of America a special place for more than two centuries.

Maybe they skipped civics.

And to let some of these people know where they can spend their time now it is established that the man from whom they took their marching orders is no longer in office: Gazing at the documents that show that the people of the United States of America and their designated electors have made Joe Biden and Kamala Harris the President and Vice President, respectively.

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That was written Wednesday before an angry mob, goaded on by the angry man who lost the election, attacked the United States of America. Extreme? Not if you see the photo of the law enforcement officials, guns in hand, behind the barricaded doors of the House of Representatives. 

While I had thought about deleting that explanation, when Mike Lee, Republican Senator from Utah, took to the floor of the Senate last evening to make his remarks regarding the curious claims of Ted Cruz, Republican Senator from Texas, that there needed to be a commission that would run for 10 days looking into the security of the election, he cited Article II, Section 12.

In Lee’s words: “Our job is to open and then count. Open and then count. That’s it. That’s all there is.”

Lee had proffered a booklet containing the Constitution when he made those remarks. I wonder if there are any copies at 1600 Pennsylvania Avenue.

***

The most-telling admission of the lack of seriousness of the results to overturn the election (let’s call it what it was) came from Kelly Loeffler, Republican Senator from Georgia, who had signed on with the Hawley/Cruz Putsch Planners. Realize that Loeffler, that very day, had been handed a pink slip by the voters of Georgia. Arguably, she would have nothing to lose politically were she to maintain her allegiance to something — or more accurately, someone -- other than the flag.

But Loeffler, who would undoubtedly be one of the many who’d have angry tweets written about her were it not that Donald Trump’s Twitter account had been given a time-out, appeared shaken to realize that words have consequences, and when those words are not true, when they are about fanciful conspiracies, then there can be things like angry mobs attacking the U.S. Capitol.

She saw the consequences. She withdrew her support of the efforts to, as she had it on the homepage of her website (probably to be taken down by now), “give President Trump and the American people the fair hearing they deserve and support the objection to the Electoral College certification process.”

She knew there was nothing there. And she probably knew that had the Senators not been escorted out of the chamber earlier in the day by armed police, the mob wouldn’t be discerning: she would have been in the same danger as Senate Minority Leader Chuck Schumer. That would have been real.

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A word about the rule of law.

Rudolph Giuliani is the former associate attorney general in the Reagan administration. He was the U.S. Attorney for the Southern District of New York, where he prosecuted the likes of Ivan Boesky and Michael Milken for financial fraud, organized crime figures, and other people who broke the law. He was lauded for his forthright efforts to uphold the rule of law. After the horrible events that occurred on September 11, 2001, Giuliani, then mayor of New York City, became “America’s mayor,” as he stood up to the forces that were attacking the core values of the United States.

Shortly before the Capitol was stormed, Giuliani, now Donald Trump’s personal attorney, told the crowd at the “Save America Rally,” “Let’s have trial by combat.”

The personal attorney of the President of the United States.

“Let’s have trial by combat.”

That’s not in the Constitution, either.

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It’s Official, Again, for Now, as Electoral College Votes

By Todd Lassa

California’s 55 electors formally cast their votes for longtime U.S. senator and former Vice President Joe Biden Monday, putting him over the 271 he needed to become president, and on to a 306-232 victory over incumbent President Trump.

Now, finally Trump will end his challenges against the presidential election outcome, based on unfounded claims of ballot fraud primarily in Democratic-majority urban areas, right? 

Not so fast. While electors met in 50 states plus the District of Columbia Monday, a joint session of Congress meets January 6 to count those votes, and hardcore Trump Republicans are still threatening to overturn Electoral College votes, NPR reports.

The latest of Trump’s more than 50 failed court cases came in Wisconsin Monday just one hour before the state’s 10 electors were escorted by police into a statehouse chamber to cast their votes for Biden. The state Supreme Court rejected the incumbent president’s bid challenging four types of ballots in Milwaukee and Dane counties after the first recount there added about 130 votes to Biden’s 0.6% margin.

Monday’s Wisconsin Supreme Court decision was close; 4-3, with one conservative justice joining the court’s three liberals. 

Michigan’s presidential electors met in the Lansing statehouse at 2 p.m. Eastern time Monday, in chambers closed because of safety precautions. Prior to the vote, Michigan Republican leaders stripped state Rep. Gary Eisen, R-St. Clair Township, of his committee assignments after he made comments on a local radio station that hinted he was part of a group that planned to undermine or overturn Biden’s 16 Electoral College votes from the state, the Detroit Free Press reports. 

And this all comes after the U.S. Supreme Court late last Friday rejected Texas’ Republican Attorney General Ken Paxton’s suit demanding that 20 million ballots from Pennsylvania, Georgia, Michigan, and Wisconsin be thrown out. The court’s unsigned ruling prompted sometimes violent demonstrations in several U.S. cities Saturday, including Washington, D.C., where attendees included former national security advisor Michael Flynn, conspiracy theorist Alex Jones and members of the right-wing Proud Boys, who have ties to white nationalism. 

A group of 126 Republicans in the U.S. House of Representatives backed Paxton’s suit to reverse the vote of the four “swing” states Biden won November 3, which left 74 House Republicans who declined to back President Trump’s effort. Or, 73 if you count out retiring Rep. Paul Mitchell, R-Mich., who announced Monday he would leave his party.

Please address comments to editors@thehustings.news

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Biden’s Short Coattails Predict Two More Years of Split Government

By Todd Lassa

As of Monday morning, 97-percent of the presidential election vote is in and Democrat Joe Biden leads Republican incumbent Donald Trump, 50.9 percent to 47.3 percent, according to the latest count by NBC News. The pertinent number, of course, is 306 to 232, the Electoral College advantage for former Vice President Biden, who has matched the count President Trump had when he beat Hillary Clinton in the 2016 race. 

Biden’s 50.9-percent most certainly is not a “mandate,” though historians say it is the highest share against an incumbent candidate since Democrat Franklin Delano Roosevelt beat Republican Herbert Hoover in 1932.

What’s certain about the first half, at least, of Biden’s term as president is that he will not have much success pushing an aggressive, potentially progressive agenda through the 117th Congress. Though Democrats hold on to the House of Representatives, retaining Nancy Pelosi as speaker, the margin has shrunk by eight seats to 224 Democratic to 211 Republican. In the Senate, Democrats must win both January runoffs in Georgia to acquire a 50-50 split and take the majority vote from Republicans, with Vice President-elect Harris providing the tie-breaker.

If Georgia doesn't chose both Democratic candidates over the Republicans in January's Senate race runoffs, Senate Majority Leader McConnell will potentially have as much power in Washington as the president. Followers of Sen. Bernie Sanders (I-Vt.) and The Squad are not likely to gain much legislative traction in this scenario.

The “blue wave” many expected this year has been largely restricted to the presidential race, with Republicans making many down-ballot gains, including in state governments. 

It is appropriate, then, that left-column pundit Jim McCraw, a centrist living in The Villages, Florida who supported Biden in the Nov. 3 election provides a recommended agenda for the president-elect. Equally appropriate that right-column pundit Bryan Williams, a former GOP operative in Southern California counters McCraw’s proposals without much serious disagreement. While Williams supported the populist-nationalist Trump in the 2020 election (though not the 2016 election), his own pro-business, laissez-fair agenda is more reminiscent of old-fashioned Mitt Romney conservatism. 

Please address your comments to editors@thehustings.news

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Why Just Two?

By Stephen Macaulay

A friend of mine said to me yesterday that he’d cast his ballot some weeks earlier. He said, “I didn’t vote for either of those two. As the father of a daughter I couldn’t vote for Trump. As the owner of a small business I couldn’t vote for Biden.”

He voted for Jo Jorgensen, Libertarian candidate for president. Not that he had any illusion that she would win. He just wanted to participate in our democracy.

He told me that this is the second presidential cycle he’s done that.

Mind you he is a well-educated owner of a profitable, family-owned business. Twenty years ago he might have been a Democrat. Now that he is in his 50s, I would have guessed Republican.

His position isn’t exactly “a pox on both of your houses.”

It is more of “I can’t see how either of these people is going to help me.”

As we wait for the results, there is undoubted feeling of rancor among both sides.

Many Trump supporters undoubtedly think that Biden supporters are a bunch of latte-sipping snowflakes who don’t understand the meaning of the word freedom.

And on the Biden side they’re seeing a gang of overweight patrons of outlet malls.

Neither is correct.

Both sides are Americans. Both sides are participating in the electoral process. Both sides think their guy is the right one for the country.

One side is going to be pissed when the last ballot has been counted. Or the last lawsuit settled.

If one wins with the majority of the popular vote but loses the Electoral College, there will be an outcry to abolish that mechanism. Undoubtedly there will be some action.

But is that enough?

Why is it that people like Jo Jorgensen don’t have a snowball’s chance?

Why is it that there are just two parties that seem to matter?

Maybe instead of just going for direct voting there should be more adjustments made to the system as it exists.

Perhaps we should take a page from the British system, which has campaigns running for four weeks. People and parties that are less well-funded than the Republicans and Democrats would not be at the huge disadvantage that they are now. While some would say that the wealthy candidate would just pour it on for those 30 or so days, let’s look at it this way: If you have a glass that you fill with water, at some point it is full and no matter how much more you put in it there won’t be more. Arguably the same could be said for political ads.

You won’t be happy today.

I won’t be happy today.

But do you know who won’t be unhappy?

My friend who voted Libertarian.

Macaulay is The Hustings’ pundit-at-large.

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View of Election Night from the Left

Nov. 5 UPDATE: There has been no "blue wave" in the U.S. Senate, with Mitch McConnell, R-Ky., expected to retain his position as majority chairman. [He has since suggested the Senate consider a second coronavirus relief package before the presidential inauguration, a shift from a previous position that it would not be considered until after Jan. 20.] Currently, the Senate makeup is 48-48, with Democrats up one seat and Republicans down by one. The GOP will almost certainly win two more, with incumbents Dan Sullivan of Alaska, and David Perdue of Georgia expected to retain their leads. Of the two remaining, incumbent Sen. Thom Tillis, R-N.C., leads Democratic challenger Cal Cunningham, 48.7 percent to 46.9 percent, though with 94 percent of the ballots counted, Tillis could lose if Biden ultimately flips the state. The second is a special election in Georgia for its other Senate seat, where Democratic candidate Raphael Warnock, at 32.7 percent of the vote with 96 percent of the ballots in, and incumbent Republican Kelly Loeffler, at 26.1 percent, edged out Republican challenger Doug Collins at 20.1 percent. The runoff will be held in January.

The Hustings asked contributing liberal pundits to tell us their thoughts of the presidential election just before turning in for the night. Whether because they were still watching well into Wednesday as we went to post, or because they fell asleep trying to wait out the results, our responses have been rather limited. Here’s what we heard back:

For liberal pundit Michelle Naranjo, Democratic presidential candidate Joe Biden’s failure to strike a decisive blow against the Trump campaign is disappointing, though perhaps not much of a surprise. 

“There is a blazing red mirage in front of the U.S. map tonight,” she writes. “Ballot counts appear close, and possibly even dire for the Biden, but much like Trump’s escapades, it is temporary smoke and mirrors.

“Republicans appear to be leading in vote tallies, but in-person votes (heavily Republican) are being counted before mail-in ballots, which typically skew Democratic voters. Tomorrow, and even the days following should pull the real results into focus.”

As noted in his last left column [“Fair and Unbalanced,” Nov. 3], Stephen Macaulay is at home, either watching “The Mandalorian” or reading a book.

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Biden is One State from Victory, at 264-214 Electoral Vote Lead Over Trump

By Todd Lassa

Nov. 4 UPDATE: Democratic presidential candidate Joe Biden was named "apparent winner" of Wisconsin's 10 electoral votes Wednesday afternoon. The Trump campaign says it will file for a recount. Meanwhile, despite the AP's early morning declaration calling the state for Biden, ballots in Arizona are still being counted and no winner has been officially named. The latest electoral vote count is 248 for Biden and 214 for Trump, according to The Wall Street Journal.

First, it seemed we were in for a long Election Day evening, lasting until this Friday or beyond as we waited for vote counts from the states Donald Trump flipped to beat Hillary Clinton in 2016. Then President Trump appeared before a crowd of unmasked supporters at the White House about 2:30 a.m. Eastern time Wednesday to confirm the fears his opponents in the Democratic Party have long held.

“We were getting ready to win this election,” Trump said, to the cheers of his crowd. “Frankly, we did win this election.”

President Trump threatened, without merit, to take his grievance to the Supreme Court with his three appointees, including Amy Coney Barrett. “We don’t want them to find ballots at four in the morning,” he said.

Shortly after three in the morning, however, the Associated Press called Arizona for Biden, the first state to turn from its 2016 vote. Democratic candidate Mark Kelly also beat Republican Martha McSally in the race for John McCain’s old Senate seat, the AP also reported.

With Trump’s lead in Wisconsin hinging on mail-in ballots still being counted in Milwaukee County, and Pennsylvania, Michigan, Georgia and North Carolina still in play, Biden was holding on to a 238-213 Electoral College vote lead over Trump, The Wall Street Journal reported.

BREAKING: The vote count in Metro Milwaukee, reported at 4:45 a.m. Eastern time, put Biden ahead of Trump in Wisconsin, though several smaller cities there still had to report votes.

“It looks like it’ll be a long few days,” says Charles Dervarics, contributing editor. “Biden appears to have lost opportunities in the Southeast, though he should win Arizona. But the race looks like it will come down to the old Midwest ‘blue wall’ of Michigan, Wisconsin, and Pennsylvania. Just as in 2016, they again will decide the election.”

Prior to Trump’s White House speech, Biden made a drive-in appearance in Wilmington, Delaware to tell supporters, “We feel good about where we are. We believe we are on-track to win the election,” but made it clear there is no victory for him yet to declare.

“It is not over until every ballot is counted.”

This presidential election most certainly will revive calls to reform the system and its 51 ways to count votes, but not until after it is over – in weeks, if not in months.

“Although the presidential election isn’t decided, and may not be for a bit, it’s clear that our country needs improved vote counting,” says Gary Sawyer, of The Hustings editorial board.  

“The rules on counting absentee ballots differ wildly from state to state. That’s an issue in this extremely strange year. No one could have anticipated the onslaught of early voting. But the result has been increased turnout and it’s unlikely voters will want to return to traditional Election Day voting. This slower count will happen again. “

Please address your comments to editors@thehustings.news

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Red, White & Blue Golf Carts at The Villages

By Todd Lassa

By the time former Vice President Joe Biden became the Democratic nominee for president this year, political pundits were still looking at the electoral college map like it was 2016 all over again. Could President Trump maintain his popularity and turn Pennsylvania, Michigan and Wisconsin blue once again? 

Florida has 29 electoral college votes, however, to Pennsylvania’s 20, Michigan’s 16 and Wisconsin’s 10. It is one of the more reliably red states in play according to the latest polls, along with North Carolina, Arizona and even Texas. 

Biden holds a 1.2-point lead over Trump in RealClearPolitics’ Oct. 30 average of 11 polls for Florida, which happens to be the same percentage victory that Trump had over Hillary Clinton in 2016. Four years ago, Trump’s  RealClearPoilitics  poll average was 0.2 points above Clinton just before the election. 

Key to Florida’s choice next Tuesday will be the vote from The Villages, with its 130,000-plus residents, most of them seniors over 55, and many of whom vote assiduously. Residents motor around The Villages largely in electric golf carts. (In 2005 The Villages entered The Guinness World Records with a parade of 3,321 golf carts.)  These carts make a great political news story photo op, as many of their owners festoon them with campaign signs. 

Before and after the ’16 presidential election, the vast majority of those carts in The Villages were plastered with pro-Trump signs, piloted by seniors wearing red MAGA hats. This time, national media have covered a large influx of Biden-blue golf carts. Is it real, or is it an anomaly, with a handful of outspoken Democrats infiltrating the deep-red retirement neighborhood? Our resident of The Villages and our former GOP official from California discuss, in the left and right columns, respectively.

Please address your comments to editors@thehustings.news

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