Are You Happy with the Arizona "Audit"?

David Hilfiker

The conspiracy-tinged Arizona recount of the 2020 presidential election has returned its verdict: There was no evidence of fraud.  In fact, President Biden received 360 more votes than had been officially reported.

The results, however, are hardly a cause for celebration among those who already know that the 2020 election was the most secure in American history.  While some Trump supporters undoubtedly thought they would find fraud and even overturn the election and progressives were afraid of fraud in the audit itself, even the benign result sowed further doubt upon the integrity of the American electoral system. 

Any Republican effort to overturn the election, of course, is almost certain to end in defeat.  Won’t that, one might ask, increase confidence in the electoral process?  To a small degree, maybe.  But the real damage was done long ago when the recount was ordered, indicating to the average citizen there was something wrong with the election.  The charges are no longer “fraud” because that’s been discredited multiple times; now the claim is only that there is something “irregular” going on, a charge so vague that it cannot be proven false.

Governor Greg Abbot’s order for a recount in Texas — made within days of Trump’s recent demand — gives some indication of its real intent: Trump won the state, so it’s hard to see any other purpose than to cast doubt on the election process itself.

Wide-spread doubts will have several deleterious results:

• They’ll fuel the Republican efforts to restrict voting rights and write election regulations that discourage Democratic voters from turning out. 
• The doubts will, Republican hopes, spur its base to turn out in high numbers.  (Ironically, the strategy may well backfire: Republicans who believe the false assertions, fearing their vote won’t count, won’t show up while the strategy may anger Democratic voters and energize them to vote.)
• The violence of the January 6 insurrection — inspired by the Big Lie of a stolen election — emphasizes that these growing doubts about elections can have serious real-life consequences for our democracy, including violence.  
• Perhaps the most serious outcome will be to acclimatize the Trump base to the belief that, as Jennifer Rubin writes, “election results are neither final nor inviolate, but merely a prelude to further efforts to overturn election results — by force, if need be.”

The danger should not be underestimated.  An American Enterprise Institute poll shortly after the January 6 insurrection found that three in 10 Americans, including 39% of Republicans, agreed that "if elected leaders will not protect America, the people must do it themselves, even if it requires violent actions."

The Arizona recount has inspired other state recounts in Pennsylvania, Wisconsin, and Texas.  In many other states, bills are passing through legislatures to fund similar efforts.  And still other bills have shifted election responsibilities from governors and nonpartisan local officials to partisan officials and/or state legislatures.  There are even proposals in Nevada, Arizona, Georgia, and Missouri to give the state legislatures control over the results of the election although none of these bills has passed or is even likely to.

A free and fair electoral process is essential to a functioning democracy.  Probably more important, without the confidence that elections are free and fair, the losing sides will not consider the winning side’s government legitimate.  As it is, only 30% of Republican voters have confidence in the electoral process.

Under such circumstances, American democracy is in great peril.

The General's Warning

David Hilfiker

On October 30 last year, four days before the 2020 election, General Mark Milley, Chairman of the Joint Chief of Staff, made a personal call to his Chinese counterpart General Li Zuocheng.  According to the new book Peril by seasoned and reliable Washington Post reporters Bob Woodward and Robert Costa, Milley had become so worried that President Donald Trump’s mental state and erratic behavior might precipitate armed conflict that he took this unprecedented step to reassure Li that the US would not attack China.  

Milley had seen intelligence indicating China thought the US was preparing to attack them.  He was so concerned that Trump’s unreliable conduct might evoke Chinese retaliation that he even guaranteed Li that there would be no surprise: he promised he would personally call Li if a US attack were imminent.

Three months later, just after the insurrection at the Capitol, Milley again called Li to reassure him.  Fearful that Trump would do something rash, Milley also tried to reduce tensions with China by postponing scheduled military exercises in the Pacific.  He did not relay his conversations with Li to the President.

In a call between Milley and Speaker of the House Nancy Pelosi about the same time, Pelosi asked Milley what precautions were in place to stop Trump from ordering a unilateral nuclear strike.  She, too, was concerned that Trump had become unstable, calling him “crazy.”  Milley assured her that precautions were in place, but he concurred with her assessment that Trump was unstable.  “Madam Speaker,” Milley said, “I agree with you on everything.”  Then, according to the book,

Milley also summoned senior officers to review the procedures for launching nuclear weapons, saying the president alone could give the order — but, crucially, that he, Milley, also had to be involved.  Looking each in the eye, Milley asked the officers to affirm that they had understood … in what he considered an “oath.”

He was not, of course, the only official to be deeply worried.  CIA Director Gina Haspel, for instance, reportedly told Milley, “We are on the way to a right-wing coup.”  

Former White House chief of staff, retired Marine General John Kelly, has told friends that

The depths of [Trump’s] dishonesty is just astounding to me. The dishonesty, the transactional nature of every relationship, though it's more pathetic than anything else. He is the most flawed person I have ever met in my life.

Milley’s actions and the resultant fall-out have been all over the news the past week, so none of this may be new to you.  Even after my years of following Trump closely, however, the clarity and specificity of the quotes from Milley, Haspel and Kelley still shock me.

Although many (including me) have worried about Trump and the “nuclear button,” Milley, Haspel, et al are not armchair pundits and they were close to the action.  They, too, were afraid.  By promising to warn Li in the event of an impending attack, Milley was laying the groundwork for extraconstitutional action to protect the world from his Commander in Chief.

Milley was subjecting himself to possible charges of treason.  Since the public revelations earlier this week, Milley has essentially confirmed them by issuing no denials.  He clearly felt the danger to the country was more important than his possible prosecution.

General Milley saw

parallels between Jan. 6 and the 1905 Russian Revolution, which set off unrest throughout the Russian Empire and, though it failed, helped create the conditions for the October Revolution of 1917, in which the Bolsheviks executed a successful coup that set up the world’s first communist state. Vladimir Lenin, who led the revolution, called 1905 a “dress rehearsal.”

A similar logic could apply with Jan. 6, Milley thought as he wrestled with the meaning of that day, telling senior staff: “What you might have seen was a precursor to something far worse down the road.”

The behavior of the Republican Party reveals what might be that “worse down the road.”  The party has not only refused to disavow Trump’s behavior, but it is also doubling down.

A danger in the inordinate number of threats from Trump and his party is that we will lump them together in our memory and forget the depth and breadth of what and continues to happen.  Woodward and Costa remind us of our crucial responsibility to remember, to keep telling the individual stories, to keep the show from getting past a dress rehearsal.

The Withdrawal from Afghanistan

David Hilfiker

I’ve been feeling depressed, anxious and even guilty about President Biden’s decision to withdraw troops from Afghanistan.  My despair has been somewhat ameliorated by his follow-up decision to return some troops, hopefully to extricate people who cooperated over the years with the US and are now in danger for their lives.  Nevertheless, it’s going to be bad.

I’m surprised by my strong visceral response since I’m not usually emotionally impacted by terrible news, even terrible mistakes, especially if I can come to some understanding of what happened.  I feel guilty, I suppose because I’m a progressive who campaigned in 2001 against going into this longest of American wars and who has wanted us out since.  I’ve identified strongly, therefore, with Biden’s desire to get out.  As irrational as it seems, I feel somewhat responsible for his decision.  I’m depressed about the suffering that is coming, anxious about the impact on the next elections and guilty as one who would have done the same thing.

No one should be surprised by Biden’s decision to withdraw.  While he was Vice-President, he argued, forcibly if unsuccessfully, for withdrawal.  He signaled his intention throughout his campaign.  I favor his decision.  Like many, I am critical of how he withdrew, especially leaving so many Afghans who helped the United States to the mercy of the previously unmerciful Taliban.  I wish he had started the process as soon as he became president to allow time for Afghani emigration while US forces were still there.

I am aware, however, that arranging emigration would have been a slow and difficult task.  How would those who had previously helped us be identified?  Few would have proof and documents could easily have been forged.  How much help would a person have had to offer in order to qualify?  What would keep tens of thousands who had stood on the sidelines from claiming the right to a visa?  Getting a visa is ordinarily a long and arduous process.  How could it have been responsibly speeded up?  That’s not to absolve the US from responsibility, only to say it would have been harder than it might appear.

Some History

Within weeks after 9/11, President George W Bush invaded Afghanistan claiming the only purpose was to extract Osama bin Laden and disable Al Qaeda.  

Bush quickly signed into law a joint congressional resolution authorizing the use of force against those responsible for attacking the United States. Despite its narrow focus, this resolution was later cited by Bush’s administration (and Obama’s and Trump’s) as legal authorization for its continuing decisions to take sweeping measures to combat terrorism, including the war in Iraq.  Although it was not widely reported at the time, shortly after our invasion of Afghanistan, the Taliban volunteered to hand Osama bin Laden over if the US would stop the bombing.  While it is unclear how serious this offer was, Bush rejected it summarily, apparently without follow-up.  Had Bush been serious about wanting primarily to extract bin Laden, he could have dispatched US Special Forces — as Obama did ten years later — to bring al Qaeda’s leader to justice.  The real goal, never explicitly stated, was to punish and destroy the Taliban and rebuild Afghanistan … nation-building, despite our initial denials.

Especially after the Soviet withdrawal in the 1980s, Afghanistan has been called the “graveyard of empires.”  Since the War in Vietnam, large, organized armies have generally lost “asymmetric wars” to the much smaller indigenous opposition.  As recent excerpts from Craig Whitlock’s The Afghanistan Papers make clear, US military and intelligence sources knew from the beginning that the war was unwinnable.  Eventually, they predicted, the US would be forced out of Afghanistan, almost surely leaving the country in disarray.  Yet the US government lied for twenty years, claiming continually that were winning.  Whether we pulled out in 2005, 2015, 2021 or 2035, we were going to leave chaos behind and those in charge knew it.  

Like most observers, I am aware that one result of the Taliban take-over will almost certainly be the cruel oppression of women.  I say “almost” because Taliban leaders have promised a different practice regarding women.  That probably needs to be taken with a grain of salt since they have also promised to govern under Sharia law, but the Taliban will now be governing Afghanistan and the leadership is certainly aware it will need to join the community of nations if it is to survive.  If it is not to be a pariah, its policies toward women will have to be different.  All that is speculation, of course, and, at this point, the Taliban’s promises cannot be trusted.

As horrible as the future of Afghani women is, however, that does not change the fact that decades of the war and almost 200,000 deaths have not made things better.  Decades more would likely bring the same result.  Are we willing to stay there indefinitely?  Should we?

Biden’s exit has been sloppy, resulting in the unnecessary suffering and loss of lives, but the leaving was always going to be chaotic, the people were always going to suffer, the women were always going to be terrorized, and the country always left in tatters.  That is not Joe Biden’s responsibility.  

I know all that … intellectually!  Usually, my understanding a tragedy is enough to keep me from getting sucked in emotionally.  But not this time.  This time it brings me close to despair.

The Republican Party's Future

What is the future of the Republican Party?

Before I begin, you should know I don’t have the best record of political prognostication.  I’ve been a progressive so long that, until recently, I just didn’t understand much of the rest of the country:

• In the 1968 presidential election, I thought there was no chance that Republican Richard Nixon would beat Humbert Humphrey.  Humphrey got trounced.
• In 1980, I was delighted when the Republican Party nominated Ronald Reagan because I was sure he couldn’t win against Jimmy Carter.  Carter was clobbered 489-49 in the Electoral College.
• Even in 1984, I was sure Reagan could not win re-election.  Reagan crushed Democrat Walter Mondale with the highest electoral vote total (525) in American history.
• And in 2016, when the Republican Party nominated Donald … Well; I don’t need to get into that one. 
  

Furthermore, I’m not sure I’ve escaped the progressive cocoon.

But somebody has to begin thinking about the future of the Republican Party, and I’m not going to let my lousy record of predictions stand in my way. 

There are four possibilities.

1. The Republican Party could continue its populist, anti-democratic rightward swing. 

It could take hold of Congress in 2022, renominate Trump or an acolyte in 2024 and move us more deeply into the authoritarianism we have so narrowly avoided.   

A sign of their political power, even after four years of the Trump administration, Republicans held onto all of the statehouses up for re-election in 2020, hardly a sign that the party is losing clout.  They now have a 20-18 state-house advantage over the Democrats, which is likely to lead to extreme gerrymandering, voter suppression, and even partisan control of the voting process.  Remember, within narrow constitutional limits, the Supreme Court seems to have decided that states may determine the distribution of their electoral votes however they choose. 

In addition, the Democrats’ narrow control of Congress will be threatened in 2022 because the president’s party usually loses congressional seats in mid-term elections.

Although the Republican Party is unlikely to win a national popular vote for a while, an electoral vote victory in the 2024 presidential election is quite possible.

2. The Republican Party could self-destruct.  

 

The majority of congressional Republicans seem committed to the “Big Lie” of Trump’s victory in 2020.  A significant number seem still committed to an anti-mask, “personal choice” approach to the pandemic.  A smaller, although rapidly declining, number remain anti-vax as well.  With time it’s likely a large number of people will understand the madness of those positions, which may well haunt Republicans in the 2022 and 2024 elections. 

 

Since last year’s election, the party seems to have made little effort to broaden its base and has instead alienated the country’s moderates.  Those moderates seem increasingly turned off by the Republican attempt to suppress the vote and radically gerrymander the states.  Ultimately the Republican Party cannot maintain itself by appealing only to its base, perhaps 40% of the electorate.    

 

A small number of moderate Republican politicians seem to have understood the damage the party is doing to the country. Although unlikely, it’s possible they will decide they cannot continue with the madness.  It would not take many Mitt Romneys, Susan Collinses, or Adam Kinzingers to convince many Republican voters to temporarily support Democratic candidates while they build a new conservative party.  As I wrote in a previous post, it has happened before.

 

3. Perhaps the least likely future 

for the Republicans is a return to a moderate conservative party. that could take part in a sustained bipartisanship.  The vast majority of the party’s political leaders either actively support Trump or more passively fear him so it’s hard to see how the party could gradually return to its roots, even after Trump disappears or is pushed from the scene.

 

4. The most likely Republican future

is that the 2022 mid-term elections will lead to political stasis.  Republicans will probably take over at least one house of Congress, leading to the national political paralysis so well known to the country.  An incapacitated national government serves the Republican Party’s goals by blocking meaningful legislation to act on the major problems facing the country, leaving the states more power.  More importantly, it leads to a decrease in confidence in the national government which deepens the populist, authoritarian impulses of the country.

Even if this happens, however, I cannot imagine the stalemate lasting indefinitely.   It is simply too unstable.  Either of the first two options — the eventual destruction of the Republican Party or an authoritarian take-over — seems far more likely.

While it has been coming on for several decades, the 2016 ascension of Donald Trump and his take-over of the Republican Party marks a turning point in the history of the American democracy.  How we turn matters a great deal!

Defund the (Tax) Police

Over the last decade, Congress has steadily cut funding for the Internal Revenue Service (IRS) enforcement of US tax law.  As a result, the IRS has lost almost half its auditors and more than one-third of its revenue collectors.  Not surprisingly, this has led to steep drops in tax collection, especially from the wealthy and corporations.

 As part of President Biden’s effort to pay for his $1.9 trillion infrastructure bill, he has proposed an increase in funding to the IRS of $100 billion to restore the agency to its 2010 level of enforcement personnel.  Republicans, however, have unanimously objected to the funding increase.  The problem is that Biden needs the IRS restoration to collect funds that will be necessary to pay for the bill.

According to IRS Commissioner Charles Rettig, the United States loses up to $1 trillion in unpaid taxes per year, in part because there are not enough employees to adequately audit returns for fraud and collect the appropriate revenue.  

Restoring IRS funding is not a “tax increase,” so dreaded by conservatives.  Rather, it only enforces existing law in order to collect from tax cheats.  But the return on investment is extraordinary, up to twenty-four times that of the initial cost.  Estimating this return on investment is difficult since it involves new, more sensitive methods to track the use of cryptocurrency, offshore tax evasion, illegal income undetected by the IRS, and underreporting from pass-through businesses.  It must also include the indirect effect of “voluntary” compliance once the tax cheats realize they are much more likely to be caught.

Current IRS regulations make it far easier to monitor tax compliance among those who work for wages than among those who whose income derives from business and capital gains.  Corporate profits are, if anything, harder to monitor.  IRS requires most employers to deduct taxes from wages, report them and send the W-2 forms directly to the IRS.  Social Security also requires withholding.  This collection of taxes occurs automatically, so cheating is almost impossible.  

But most income received by the wealthy and all income earned by corporations are not subject to W-2 reporting, leading to possibilities for many different kinds of tax fraud.  There are also, of course, many loopholes in the tax law — which is a serious problem in itself — but I am referring here only to fraud.

As a physician and public speaker for twenty years, I was, for tax purposes, designated as a “sole proprietor because of fees I earned giving speeches and seminars at medical schools, universities, and other institutions.”  Accordingly, I had to file separate business schedules on my tax returns to record income and expenses and calculate my tax.  I immediately noticed how easy it would have been to cheat.  

IRS required reports from those who paid me only if the payment exceeded $600, which it usually did not.  So, even though I was legally required to report all that income, IRS had no way of checking up on me without an intensive audit.  It would also have been easy to pad my expense accounts.  This is, of course, only a minor example.  I was astonished by how easy it would have been to commit virtually undetectable fraud.  

Frequent IRS audits of the wealthy and corporations are necessary to discover fraud and recoup the losses.  Due to budget cuts since 2010, however, IRS has lost half of its revenue officers (who collect taxes) and a third of its auditors (who monitor the more complex returns of corporations and the wealthy).  As a result, according to IRS data, the share of tax returns that the IRS audits, especially for ultrawealthy individuals and businesses, has fallen by two-thirds: Just 8.16 percent of returns with reported incomes of $10 million or more are examined.  The IRS now has fewer auditors than at any time since World War II.

 
About 99% of taxes are paid to the IRS when there is automatic withholding and reporting to the agency, but only 45% of what’s owed gets paid when those are lacking.  

This is not just a question of government income.  It is a question of basic fairness.  

Since the beginning of the Republic, political conservatives have favored smaller government and lower taxes.  Beginning in 1980 with the Reagan Administration, the Republicans Party has consistently cut federal taxes.  As much as I may disagree with it, smaller government with less tax is a legitimate political stance, appropriate for democratic debate and legislative decision making.  Republican opposition to the increasing the IRS budget, however, is an entirely different matter.  It is not about cutting taxes but about encouraging the wealthy and the corporate world to flout the law, defraud the government and steal money from the rest of us.

A Radical Right-Wing Conservative Court

When Brett Kavanaugh and then Amy Coney Barrett ascended to the Supreme Court, the fear among progressives was that the newly powerful 6-3 conservative majority would make a radical shift to the right, reversing the Roe v Wade precedent, restricting the rights of the LGBTQ minority, expanding the rights of religious organizations to discriminate, increasing gun rights (however that might be possible) and so on.  

This first term of the new Court, however, led some observers to believe that it was more moderate than predicted.  But it turns out this was just wishful thinking.  The truth is that the Court will be just as conservative as feared.  

For more than fifty years, Republican appointed justices have leaned conservative, since six of the current justices were appointed by Republican presidents, conservative rulings should be expected.  But there is increasing suggestion that the rulings will be not only conservative but also radically right-wing and more partisan, which, if confirmed by future decisions, will be one more nail in the coffin of democracy.

As Leah Litman and Melissa Murray suggest:

This [2020-21] Supreme Court term was significant mostly because of what the court did not do: The newly constituted 6-3 conservative supermajority did not use every case to openly and dramatically move the law rightward. Rather, in several important cases — including those involving the fate of the Affordable Care Act and the tension between religious liberty and gay rights — the court managed to resolve matters on seemingly narrow grounds and with broad majorities that transcended ideological differences.But to call this term a model of judicial restraint — or even nonpartisanship — would be misleading. This is not a moderate or apolitical court. It is a reliably conservative court that, on occasion, chooses to act incrementally.

Most of the cases that were decided unanimously or along cross-ideological lines did so by not deciding very much.

• One case, for instance, involved a high school student who was kept off the cheerleader squad because of a vulgar, off-campus rant on a weekend.  The Court ruled that the punishment was too severe, which seemed a victory for First Amendment freedom-of-speech.  “Too severe,” however, implies that under the right circumstances (whatever they are), schools are constitutionally permitted to limit students’ speech.  So the Court was able to achieve a broad agreement because it neither prohibited schools from suppressing free off-campus speech nor gave them broad license to do so.  
• In other cases, the Court came to its broad agreement by ruling only about technical matters.  For instance, the court refused to limit the Affordable Care Act by deciding that the plaintiffs didn’t have the standing to sue because they couldn’t show that they were harmed by the provision of the Act in question.

Several little-noticed but extraordinary 6-3 decisions along strict ideological lines seemed to have slipped under the public radar. 

• In one case the Court continued its long-standing anti-union bias by ruling that agriculture growers could keep union organizers off their property.  This was not only a blow to unions but also a much broader decision with potentially catastrophic results.  Liberal Justice Stephen Breyer
  

worried that the court’s ruling would endanger any government intrusion on private property, which he said would include “activities ranging from examination of food products to inspections for compliance with preschool licensing requirements.”

In other words, the ruling may allow private property owners to keep the government from enforcing its constitutionally given regulatory powers, making this ruling a radical and dangerous precedent.

• The Court’s continued its tendency to protect large corporations by limiting class-action suits, ruling that a
  

major credit reporting agency could not be sued for wrongly labeling its customers as possible terrorists or drug traffickers on a Treasury Department watch list. The decision accelerates a trend toward blocking the courthouse doors to persons seeking to enforce federal consumer protection laws.

The Court ruled that only plaintiffs concretely harmed by the credit reporting agency have standing to seek damages in federal court.  It didn’t matter that the agency mislabeled you as a terrorist.  If you, say, missed your flight because you were on the watch list, it would probably not be worth the cost of taking the agency to court.  Class action suits are usually brought to deter future corporate misbehavior not to compensate, say, purchasers who bought a $15 tube of mislabeled toothpaste.  The decision’s potential consequences for holding corporations responsible for their misdeeds are important.

• The Court continued to encourage “dark-money” political contributions in a 6-3 decision along ideological lines, declaring unconstitutional a California law requiring charities to report their donors to state authorities.  Most political action committees are tax-exempt, so-called 527 organizations, which are already required to make donor reports to the federal IRS.  The California law broadens this to state governments.  California’s Attorney General Rob Bonta (D) said
  

Stripping our office of confidential access to donor information — the same information about major donors that charities already provide to the federal government — will make it harder for the state to fight fraud and prevent the misuse of charitable contributions.

Since true conservatives generally favor states’ rights, this decision’s favoring corporate desires over states’ rights is especially ominous.

• The coup-de-grâce, however, came with the Arizona voting-rights decision that I examined in my last post.  Although the federal appeals court determined (as a “finding of fact”) that the Arizona laws did have a discriminatory impact on minorities, the Supreme Court — without challenging the appeals court “finding of fact” — nevertheless allowed the law despite the 15th Amendment and Voting Rights Act unequivocal prohibition of such discriminatory impact.  The Court ruled that as long as the impact was “small in absolute terms,” the state had the right to limit voting rights. This is an ominous sign for future judgments about laws that abridge the voting rights of minorities.  It is clearly a partisan decision.

This Supreme Court cannot now legitimately be called a moderate court.  A conservative court has a legitimate right to make conservative decisions, even overturning precedent.  It does not, however, have the moral right to make partisan or radical decisions.  The Court has revealed its radical right-wing, partisan agenda. 

In order to protect against government extremism, the Framers wrote into the Constitution a series of checks and balances: Each of the three branches of government — executive (presidential), congressional and judicial — can limit the others.  During the Trump administration, the presidential branch and half the legislative branch were controlled by the radical right. The Supreme Court, with a better balance between liberal and conservative judges, was the one bulwark against extremism. 

Given the ages of the conservative judges, the Supreme Court will no longer serve as a protection against right-wing populism for at least a generation.

The Supreme Court Steps on Voting Rights ... Again

The Supreme Court’s recent decisions to allow Arizona to invalidate votes cast in the wrong precinct and to prohibit “ballot harvesting” have continued its historical role in undercutting voting rights legislation.  To understand where the Court is taking us, let’s review the history of voting protections, including the Voting Rights Act of 1965, and the Court’s role in limiting them.

Passed right after the Civil War, the Fifteenth Amendment to the Constitution provides that 

[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.  [Along with the 14th Amendment], these Amendments also empower Congress to enforce their provisions through "appropriate legislation."  (Wikipedia)

During the Jim Crow era, these provisions were largely ignored.  In 1965 Congress passed  the Voting Rights Act, (VRA) which, along with subsequent amendments to the Act, finally enforced the 15th Amendment.

Section 2 of the VRA allows voters to sue if they believe a state or local government has limited their voting rights on the basis of their race, color or membership in a language minority group.

Section 5 required that nine states — along with many other smaller jurisdictions in the country — with a history of racial discrimination needed federal “pre-clearance” before implementing any changes in their voting laws.  

In 1982 the VRA was amended to make a “results test” explicit.  With the amendment, the act “prohibits any voting law that has a discriminatory effect irrespective of whether the law was intentionally enacted or maintained for a discriminatory purpose.”  Only discriminatory results matter.

In 2006 Congress reauthorized the VRA almost unanimously

In 2013 the Supreme Court in a 5 - 4 decision along ideological lines eliminated the pre-clearance provision of VRA’s Section 5.  Chief Justice John Roberts wrote, “our country has changed. … Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” legal verbiage suggesting that voting rights had progressed to the point that the pre-clearance provision was no longer necessary.  Roberts’s opinion revealed a remarkable blindness to the country’s structural racism and to Congress’s own determination only seven years earlier that the law was necessary.  

The extent of the Court’s ignorance was soon evident: The Guardian reported that

[immediately] after the decision, Republican lawmakers in Texas and North Carolina — two states previously covered by the law — moved to enact new voter ID laws and other restrictions. … Between 2012 and 2018, [for instance,] there were 1,688 polling place closures in states previously covered by … the Voting Rights Act.  … [Proof-of-citizenship and voter ID laws were also passed.]

Ruth Bader Ginsburg wrote in her dissent for the court: “Throwing out pre-clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

The full impact of the 2013 decision may never be known.  Most of the changes in voting rights are made by local jurisdictions and are never brought to judicial review.

In 2019, again along ideological lines, the Court’s 5 – 4 conservative majority gave the green light to gerrymandering.  As I described here, gerrymandering allows states to expand one party’s Congressional delegation far beyond that party’s proportion of state-wide voters.  Racial gerrymandering had already been prohibited, but — because of the disproportionate number of Blacks, other minorities and poor people who vote Democratic — partisan gerrymandering often results in racial gerrymandering.  

Last month’s Supreme Court decision (by a 6-3 margin, again along ideological lines) continues the Court’s limitation of voting rights.  The ruling let stand those two laws enacted by the Republican Arizona state legislature that lower courts had found made voting harder for voters of color.  

The first of those laws required election workers to invalidate ballots that had been cast in the wrong precinct (for instance if a voter moved to a different voting district but cast their ballot at their previous polling place), even if the ballots were for state-wide and federal elections, where precincts didn’t matter.  

The second law prohibited “ballot harvesting,” denying campaign workers, activist groups, and others from collecting ballots and bringing them to the polls.  This restricted the voting potential of invalids, shut-ins and others by preventing outside help in casting their ballots.  In Arizona, this especially affected Native Americans, many of whom live in remote parts of the state far from polling places.

In accepting the two laws, the Supreme Court justices wrote that states’ rights to prevent fraud outweighed any impact on voting rights, despite the fact that there has been no significant voter fraud in Arizona or anywhere else in the United States, which the justices surely knew.

The practical impact of these two Arizona laws is unclear, but in a state where the eleven electoral college electors were decided by a mere 0.3% margin, they could have a major future impact.  More important, however, the decisions portend how the Court may rule upon the nearly 1000 state bills limiting voting rights proposed since the beginning of the year.  

A solid 6-3 conservative majority seems prepared to allow states to ignore the 1965 Voting Rights Act and the Fifteenth Amendment and pass laws permitting (or even requiring) certain kinds of discrimination in voting.  

While the Court has made decisions this year that have crossed ideological barriers, last month’s voting rights decision along with the 2013 and 2019 decisions demonstrate that the 6-3 conservative majority solidly and consistently favors state voting-right restrictions.  The For the People Act and the John Lewis Voting Rights Bill contain far stronger provisions than the Court has already ruled against.  Even if these bills can make it through Congress (Republicans are almost unanimously opposed), their eventual chances in this Supreme Court are not good.