It was a beautiful North Carolina spring day in 2000 at the governor’s mansion in Raleigh, and Governor Jim Hunt was sprinting down the giant ruby-red stairs. I was his then-young press aide, and we were running late because he had been on the phone with President Bill Clinton.

Naively, I noted something about their discussing a state issue. Without missing a beat, the governor said of Clinton, his fellow Democrat, “I was telling him what he was doing wrong with the country and how to fix it!”

So began my real education in politics, which I was quickly learning had even more to do with human interactions than I realized.

Last week, Hunt died at 88, a historic figure in North Carolina politics who served 16 years as governor. Appointed governors from the Colonial Era served longer, but no one has yet matched Hunt’s tenure as governor from 1977 to 1985 and again from 1993 to 2001.

The obituaries are full of his accomplishments and his most notable defeat, a 1984 bid to unseat U.S. Senator Jesse Helms. Hunt once told me his TV ads were “all wrong,” which may be true, but that was a bad year to be a Democrat, especially in the South. Ronald Reagan carried the state with almost 62 percent of the vote. Helms got 51 percent.

But I’m drawn to the dynamic between Hunt and Clinton, southern Democratic moderate governors who had to find a policy and political path forward as the South became increasingly Republican in the 1970s, 1980s, and 1990s. They weren’t alone. Democratic southern governors like Ray Mabus in Mississippi, Richard Riley in South Carolina, Roy Barnes in Georgia, and Reubin Askew in Florida had similar dilemmas. They had a common goal, but they were all rivals in a way, too.

Clinton had real indebtedness to Hunt, nine years his senior. Hunt’s advocacy led to him serving as chair of the Democratic Governors Association. Clinton recalled “[I]t was the first significant national position of any kind I had.”

Clinton’s 1992 presidential victory aligned with Hunt’s return to the governor’s seat. Together, they used their bully pulpits in Washington and Raleigh to advance policies that could push the progressive envelope in a conservative era.

In 1997, when Clinton spoke before a joint session of the North Carolina legislature, as part of his crusade for national education standards and a testing plan, he called Hunt a “mentor and friend,” whose work was influenced by Hunt’s labors to create national teaching standards. Indeed, Hunt’s wilderness years outside elective office were spent as founding chair of the National Board for Professional Teaching Standards, which to date has certified over 141,000 teachers with the profession’s highest credential.

Hunt never missed an opportunity to promote this cause to Clinton, even if it meant being aggressive. A White House staffer once told me that Clinton always insisted on understanding how the federally supported teaching certification program was progressing because Hunt was sure to grill him about it.

Photos of Hunt and Clinton are like a time capsule from a bygone era. For instance, there was a joint announcement of a public-private partnership to bring Internet access to the state (and a bit of a tug-of-war over who should get credit).

There were their combined efforts to pass a “global settlement agreement” between tobacco companies and the feds, which faltered, and later a “master settlement agreement” with the states that was sealed. There was their mutual understanding that education had to start before kindergarten and that it was a winning issue with voters—something New York City Mayor-elect Zohran Mamdani latched onto over 30 years after Hunt.

The Clinton-Hunt friendship is a testament to the ideals of intergovernmental relations—that federal and state leaders should cooperate. One area that’s particularly telling about how things have changed is disaster funding. The Clinton years allowed Hunt to boast about securing federal dollars for North Carolina after devastating hurricanes; one wonders how Hunt would navigate President Donald Trump’s truculent withholding of disaster relief.

Just because both men were Democrats didn’t guarantee success. Hunt served as governor during Jimmy Carter’s administration, but that relationship was fraught, with fights over college funding and tobacco, the state’s cash crop.

January will mark a quarter-century since Clinton and Hunt last held elective office. North Carolinians should remember that their bond produced outcomes that benefited the Tar Heel State. So should the rest of us. Their relationship continues to serve as a national model during these divisive times.

The post What Bill Clinton Learned from Jim Hunt and Why It Still Matters appeared first on Washington Monthly.

Pundits of varied political flavors see “rot” permeating our country. Fareed Zakaria in The Washington Post rightly chronicles a “crisis of faith” in our institutions, like the Supreme Court, to call honest balls and strikes. “Until we can believe again that the referee is trying to be fair,” he writes, “we will keep shouting ‘Ref, you suck!’ at our own democracy—and then wonder why the game no longer feels worth playing.” In the New York Times, David Brooks laments, “There has been a slow moral, emotional and intellectual degradation—the loss of the convictions, norms and habits of mind that undergird democracy. What worries me most is the rot creeping into your mind, and into my own.” Peggy Noonan, writing lyrically in The Wall Street Journal, has a queasy feeling: “Are we maintaining our republic? Is our equilibrium holding? The last nine months, a lot of lines seem to have been crossed … There are many areas in which you’ve come to think: Isn’t the executive assuming powers of the Congress here? Why is Congress allowing this? The executive branch assumes the authority to bend its foes and defeat them. You ask: Is all this constitutional? The president “jokes” that he may not accept the Constitution’s two-term presidential limit. Are you laughing?”

The cure must come from the vote of the American people, but the right to vote is being diluted as we watch, the constitutional principle of “one man, one vote” dishonored, and the will of the people traduced with partisan and even racial gerrymandering.

This week’s Democratic wave is significant, but it doesn’t obviate Trump’s pressuring Republican legislatures to redraw their congressional districts. This power grab could make it easier for the GOP to retain control of the narrowly divided House of Representatives, which is central to our democracy. The House is a safety valve. With complete turnover every two years—only one-third of Senate seats are up for grabs biennially—it can respond relatively quickly to national shifts in public sentiment. If Trump rigs it to keep the House, the consequences would be monumental. Meanwhile, the Supreme Court heard arguments in a Voting Rights Act case from Louisiana last month that could lead to cataclysmic changes in how districts are drawn in Black and Latino communities, giving Republicans extra advantages, perhaps far more than their norm-violating mid-decade gerrymandering frenzy will yield, maybe as many as 20 seats. California’s passage of Proposition 50 could lead to Democrats picking up five congressional seats, but that may be swamped by the fallout from ripping up Section 2 of the Voting Rights Act.

The redistricting march goes on. North Carolina recently redrew its congressional map, with Republican senators endorsing a new map. The state House of Representatives followed suit the next day. “The motivation behind this redraw is simple and singular: drawing a new map that will bring an additional Republican seat to the North Carolina congressional delegation,” state Senator Ralph Hise, the Republican who prepared the map, told colleagues this week: “President Trump has called on Republican-controlled states nationwide to redraw congressional districts. This map answers that call.”

Trump quickly praised North Carolina’s “improved” map last week on Truth Social, saying it would “give the fantastic people of North Carolina the opportunity to elect an additional MAGA Republican in the 2026 Midterm Elections.”

Before the gerrymander, Republicans controlled 10 of the Tar Heel state’s 14 congressional districts, and the new map would give Republicans a good shot at winning another, and maybe more. The district held by Representative Don Davis, a Democrat, already leans three percentage points toward Republicans, and the new map would give the GOP an 11-point advantage in that district.

Throughout the debate, Democrats decried the map for carving up Black communities. “By dismantling this district, Republicans aren’t just redrawing lines, they are erasing history, silencing voices, and turning their backs on decades of progress,” said State Senator Val Applewhite

Under North Carolina’s Constitution, Governor Josh Stein, a Democrat, lacks the authority to veto the measure. “If I did have that power, I assure you I would veto this map,” Stein responded after the vote. “Republican legislative leaders are abusing their power to take away yours. They’re afraid they will lose in the midterms and afraid to say no to the President, so they’ve turned their backs on you to silence your vote in the 2026 election.” North Carolina’s Democrats have little recourse. Of course, they could turn to the federal and state judiciary, but good luck with that. Whatever happened to “one man, one vote,” a salutary legal principle, now in the ashcan of history?

North Carolina is not the only state being redrawn. In August, Texas (which started this orgy of redrawing) approved a map aimed at gaining five House seats for Republicans. A month later, Missouri Republicans followed with a distorted map that shifted Democratic Representative Emanuel Cleaver’s district to be Republican-leaning.

Meanwhile, Republican lawmakers in Kansas and Indiana are considering drawing new district lines. And GOP-controlled Ohio is required to draw new lines this year after passing its last map without Democratic support.

The vote in North Carolina took place two weeks after Republicans in Utah approved a map in response to a court ruling that could give Democrats a chance to win one or two seats. A judge is reviewing that map and may order changes.

Republicans are also considering drawing new maps in Florida and Kansas. In Indiana, the Republican governor is in favor of redrawing the boundaries but hasn’t convinced the GOP-controlled statehouse to adopt it.

Democrats are pushing back. California voters approved Proposition 50, while Maryland Governor Wes Moore announced the formation of a commission to review redistricting, indicating that the heavily Democratic state is ready to participate in mid-decade redistricting.

The significant shift of Hispanic votes toward Democrats in Virginia and New Jersey suggests that the Texas experiment that started this madness may ultimately fail. The Republican statehouse is drawing its new map, assuming Donald Trump’s strong performance in South Texas in 2024 meant Hispanics would reliably vote Republican. However, my colleague Bill Scher pointed out back in August that this was a dubious bet. After nearly a year of aggressive ICE raids and masked agents, it’s turning out to be very risky. Perhaps there’s still a chance to slow the decline.

The post Redistricting, Supreme Court Should Worry Democrats About 2026 appeared first on Washington Monthly.

Yes, the news from North Carolina is good. The self-described “Black Nazi”—Mark Robinson, the Republican gubernatorial candidate—might bring down the guy who read Hitler’s speeches, dined with Nazis, and, last week, told Jews he would blame them if he lost. I see a bumper sticker: “Trump and Robinson—Perfect Together.”

But don’t put North Carolina in the Kamala Harris column just yet. The state has only voted for a Democrat once (Barack Obama in 2008) since 1976. It is, as some tar-heel Democrats admit, structurally Republican at the presidential level. That still likely leaves the race as Pennsylvania, Pennsylvania, Pennsylvania. Without North Carolina or Georgia, Harris cannot win without it.

Let’s stipulate: We shouldn’t rely too much on polls, individual ones, or polling averages. And even improved transparency can’t account for fundamental flaws, including embarrassingly poor response rates that skew samples. Would you answer a call on your mobile phone from an unknown number? I didn’t think so.

The scariest thing I’ve seen lately is a reminder that a Washington Post/ABC News poll two weeks before the 2020 election showed Joe Biden up in Wisconsin by 17 points, and he won there by a whisker. The 2020 Pennsylvania polls weren’t off by as much, but they still predicted a much bigger win than Biden received there. So the new NBC News and CBS News polls showing Harris with a four or five-point national lead might be significant directionally, but that’s about it.

For all of their problems, I have to admit that I still respect these polls, including recent ones in Pennsylvania by The Washington Post and New York Times/Siena. They’ve made adjustments to account for past errors and remain well-regarded in the (broken) polling industry, for whatever that’s worth.

That makes it even more disappointing that these pollsters contacted voters during a terrible post-debate week for Donald Trump (the period when eating pets and Laura Loomer were in the news) and still found the race to be a statistical dead heat—or close to it. The New York Times/Siena and a few other polls showed Harris up modestly in Pennsylvania, but not enough to think that state is anything but very close.

Yes, Harris has momentum, and some presidential races do break sharply at the last minute. But right now, it’s looking as if we won’t get the big Harris win that could shut up the election deniers on Election Night and put MAGA in the rearview mirror.

The only way we might achieve that decisive result is if after Trump sees all the anti-Trump protesters dressed up like chickens outside his events — and Harris raises his cowardice in dodging the proposed October 23 debate—he relents, as Harris’s strategist, Brian Fallon, predicts. Fallon thinks that Trump is incapable of passing up a huge TV audience, and he’s probably right. If Harris kicks his ass again, which she probably will, the undecideds may swing more sharply toward her.

In the meantime, the nightmare scenario—a Trump win—is still very real, especially if he carries Pennsylvania. So today, I’m paying special attention to polling in the Keystone State, though I’m told no one who lives in Pennsylvania calls it that.

The Pennsylvania electorate is about 25 percent Catholic, with fewer than 50 percent of its voters college-educated. In 2020, that helped Biden, who is Catholic and—before he became unpopular in the state—had some working-class appeal. Now, Trump leads among Pennsylvania Catholics by 18 points. Biden carried Lackawanna County—which contains Scranton, his hometown—by 8 points. (In 2016, Hillary won that area by three).

Unfortunately, Scranton is not Kamala Country, nor is Erie County in northwest Pennsylvania. And “Pennsyltucky”—all of the state’s rural areas—is overwhelmingly pro-Trump, despite hundreds of infrastructure projects underway there thanks to the Biden Administration.

That leaves the Pittsburgh and Philadelphia metro areas, where Harris must run up big majorities. Even if she does that, she has to cut into Trump’s huge margins in the rural counties at least a little to win.

The Post poll shows how deeply Trump’s lies have penetrated Pennsylvania. Surprisingly, the top issue there is not the economy, immigration, health care (the largest employer in the state), or abortion but “protecting democracy.” Good news, right? Not exactly. When asked which candidate is best equipped to protect democracy, 48 percent say Harris and 45 percent choose Trump, an insignificant gap. Nationally, about 40 percent believe the 2020 election was stolen. Those are Trump base voters, and there’s no changing their minds.

Like voters in other states, Pennsylvanians have a peculiar cognitive dissonance on the economy. While two-thirds think the national economy is “poor” or “not so good,” two-thirds are optimistic about their own financial condition. I figure these folks are in the 33 percent of the electorate who say they receive most of their news from social media and Fox News. (Only 7 percent say they get their news most often from “national print or online news organizations, like The New York Times or The Wall Street Journal”).

Harris has an advantage on abortion, with the Post poll showing 64 percent say abortion should be legal in all or most cases. However, among voters who think the economy and immigration are paramount, Trump has the backing of 65 percent and 80 percent, respectively.

While Trump’s 15-point margin among white Pennsylvania voters in 2020 exit polling has declined by a third, a good sign, he is doing surprisingly well in holding down Harris’s margins among Black voters—especially males. In 2020, Biden won 92 percent of the Black vote; Harris is currently winning 78 percent, according to the Post poll. This may be because Black voters in Pennsylvania have been bombarded with ads saying that Harris wrongly prosecuted young Black men as San Francisco’s district attorney. Last week, Roger Stone signaled that another is coming that will feature a Black San Francisco woman who was carted off to jail in handcuffs because her daughter, a sickle cell anemia patient, was truant due to illness.

Harris won’t likely respond specifically to the sickle cell case, but she may engage on this issue more broadly. While her anti-truancy policies led to sharp educational gains among Black third graders, it might look defensive and off-message to point that out.

In better news, Harris leads Trump by 12 percentage points among Pennsylvania voters in union households and a comparable margin among the rank-and-file themselves. In 2020, Trump and Biden were in a statistical tie for that vote. The enthusiastic endorsement of Shawn Fein of the UAW and several Teamsters locals may prove crucial for Harris.

The New York Times/Siena/Philadelphia Inquirer poll held some surprises. Respondents found Trump to be the more “extreme” candidate, 74 percent versus 46 percent. That only sounds good to the uninitiated. “Extreme” is apparently no longer a slur in a good chunk of America. In 1964, Barry Goldwater said in his acceptance speech at the Cow Palace in San Francisco, “Extremism in defense of liberty is no vice.” This may have played well with the GOP base, but it helped doom Goldwater, who lost to Lyndon Johnson that fall in a landslide. Nowadays, among voters in the Times/Siena poll who say “extreme” described them at least “somewhat well,” Trump won by more than 50 percentage points. And he doesn’t seem to be paying a price for his extreme views among independents.

Harris is making strides in convincing voters that she’s not a San Francisco liberal. It helped when she told Oprah that she wouldn’t hesitate to shoot an intruder. Even so, far more voters see her as too liberal than view Trump as too conservative, though this doesn’t account for independents and Democrats (like me) who would not describe Trump as conservative—because he isn’t. What true conservative is a protectionist, a budget-buster, and an authoritarian?

Both candidates are much more popular in Pennsylvania than they were last year. Trump’s approval rating is up nine points to 46 percent, while Harris’s has reached 51 percent, an astonishing improvement since July. The cross-tabs on “leaners” are ambiguous but appear to favor Harris, which could be critical late in the game. The vice president’s most significant advantage may be her five-point edge on “caring about people like you.”

The fact that this gap isn’t much more comprehensive—that so many voters are still fooled by Trump—is one of the reasons for my crisis of faith in the common sense of the American people. That’s a major theme of my forthcoming book, American Reckoning: Inside Trump’s Tria —And My Own, which will be published on October 22. Please consider pre-ordering it now. On jonathanalter.com, I give you several options for doing so.

PRAISE FOR “AMERICAN RECKONING”

“I have been deeply indebted to Jonathan Alter for his political wisdom and journalistic experience these last 20 years, and I’m grateful for this gripping guidebook through a bizarre chapter in the life of our strangest president.”—Stephen Colbert, The Late Show with Stephen Colbert.

“No cameras in the courtroom, but Jonathan Alter’s brilliant book is the next best thing or better. Alter was the best writer there, and he delivers the historic drama as no one else could.”—Lawrence O’Donnell, MSNBC.

“I loved reading about Jonathan’s formative years and the powerhouse women who influenced him. Now I know why he’s such an original thinker! This is a great read.”—Susie Essman, actress on Curb Your Enthusiasm.

The post Kamala’s Path To Victory Goes Through Pennsylvania, Pennsylvania, Pennsylvania appeared first on Washington Monthly.

The North Carolina Supreme Court just issued two shocking rulings. These election law opinions underscore how politics have infected the judiciary. The justices agreed to rehear cases that were less than two months old, throwing those recent precedents into doubt. The only difference between now and then? Republican jurists now hold a majority of seats on North Carolina’s high court thanks to this past November’s election.

The most significant among these rulings deals with the Tar Heel State’s redistricting. In 2019, the U.S. Supreme Court closed the door to federal courts entering the “political thicket” and overturning state redistricting plans on the grounds that those electoral maps are too partisan. So voting rights plaintiffs turned to state courts and invoked state constitutions, which offer greater protection to voters.

In February 2022, North Carolina’s supreme court ruled that the state’s new congressional and state legislative maps violated the state constitution, which the court interpreted to prohibit extreme partisan gerrymandering. But, due to time constraints, the court allowed the maps to be used for the 2022 midterms. Then, in December 2022—after the election but before the new Republican majority on the panel was seated—the court ruled, in a lengthy opinion, that the North Carolina Senate map was still unconstitutional and ordered the Republican-controlled legislature to redraw it. Meanwhile, that February ruling is under review at the U.S. Supreme Court in the highly anticipated Moore v. Harper case that will address the so-called “independent state legislature” theory. (More on that later.)

But instead of complying with the North Carolina Supreme Court’s order and drawing a new map or waiting for the U.S. Supreme Court to rule in Moore, the Republican-controlled legislature took a brazen step. It asked the North Carolina Supreme Court to rehear its December ruling, which also encompasses the February 2022 decision. The Republicans believed that, having won control of the state supreme court in the midterms, they could count on new, conservative justices to undo the prior cases.

Their gambit paid off. North Carolina elects its justices in partisan races, and the court last year was composed of four Democrats and three Republicans. But Republican judicial candidates won two seats in November, giving the court a 5-2 Republican tilt when the new justices took their seats this winter. The 2022 rulings were 4-3 decisions, with all Democrats in the majority and all Republicans in dissent. So, it is no surprise—now that the GOP controls the court—that the order to rehear the case was also along partisan lines, this time 5-2 in favor of Republicans. The rehearing is scheduled for next month, and while we don’t know how the court will rule, the very decision to rehear the case is deeply troubling.

In their defense, North Carolina Republicans claim that the prior rulings were partisan and that the new state supreme court majority is simply addressing that partisanship. But that’s not how the judicial process is supposed to work. Judges should be guided by precedent and legal analysis. Respect for prior rulings gives courts legitimacy and conveys to the public that judicial decisions are based on reason, logic, and the rule of law—not the party affiliation of the judges.

Democratic Justice Anita Earls, a former voting rights litigator, issued a forceful dissent to the rehearing order. She noted that there had been no change in the legal issues or evidence and that the only difference was the court’s partisan makeup. She lamented, “Not only does today’s display of raw partisanship call into question the impartiality of the courts, but it erodes the notion that the judicial branch has the institutional capacity to be a principled check on legislation that violates constitutional and human rights.”

The North Carolina high court’s impudence has national implications. If the court reverses its previous rulings, the Moore v. Harper case, pending before the U.S. Supreme Court, could be rendered moot. That case addresses the independent state legislature theory, which suggests that a state constitution cannot limit a state legislature when it determines the rules for federal elections. The theory would give state legislatures free rein to impose restrictive voting laws even if they violate the state constitution. As election law professor Rick Hasen notes, mooting that case could have devastating consequences if the issue arises again in the context of a disputed presidential election. Whatever the Supreme Court decides—and it should reject the independent state legislature theory—it should do so now rather than during the hothouse of a disputed presidential election like the Bush v. Gore contest in 2000 or the violence of the January 6 insurrection.

If that wasn’t bad enough, the North Carolina Supreme Court created further mischief beyond the redistricting dispute through its second order, in which it decided to rehear a December ruling striking down the state’s voter ID law. Issued less than two months ago, the majority’s thorough 59-page opinion had held that the state enacted its ID requirement with a discriminatory purpose to make it harder for minority individuals to vote, violating the state constitution. Again, nothing has changed except for the court’s composition. But, less than two months after issuing the decision, the court said it would reconsider that precedent.

To put this power grab in context, in the past 30 years, the North Carolina Supreme Court had agreed to rehear only two cases out of the 214 requests it had received. Neither of those cases had obvious partisan overtones. The court has now doubled the number of rehearing grants in just one reckless day.

Justice Earls, dissenting, noted that “it took this Court just one month to send a smoke signal to the public that our decisions are fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench.”

Many states elect their judges, some based explicitly on partisan affiliation. But when they take the oath of office, judges should shed their political allegiances and focus on the rule of law. The new North Carolina Supreme Court majority never should have agreed to rehear these cases. But when they reconsider these disputes, the justices should affirm the court’s prior rulings to show fidelity to this core principle.

Judges should not be politicians in robes. Their only constituency should be the constitution and the rule of law.

The post Republicans Took Over the North Carolina Supreme Court. Here’s What Happened. appeared first on Washington Monthly.

In 1830, authorities in Charleston, South Carolina, asked officials in Boston to arrest David Walker for publishing a pamphlet titled Walker’s Appeal, in Four Articles; Together with a Preamble, to the Colored Citizens of the World, but in Particular, and Very Expressly, to Those of the United States of America. The Black author had demanded an end to slavery and urged African Americans to revolt if southern whites would not free them. Had South Carolina authorities been able to, they would have jailed Walker. Fortunately, the Massachusetts Constitution protected Walker’s freedom of speech. Later that year, Walker died at the age of 34, probably of tuberculosis. Rumors suggested that South Carolina agents had poisoned him.

We may never know the truth, but the belief that Walker was killed for his vocal opposition to slavery illustrates the suppression of free speech in the antebellum South. No one would doubt that Walker could have been murdered.

The controversy in Florida over teaching about, or even mentioning, sexual orientation and gender identity is just the latest chapter in a long history of southern suppression of freedom of speech. What’s come to be known as Governor Ron DeSantis’s “Don’t Say Gay” law is right in line with South Carolina’s John C. Calhoun and a bevy of 20th-century southern segregationists trying to curtail free speech. 

In the 1830s, southern states sought the extradition of northern abolitionists for writing about the evils of slavery. They indicted northern abolitionists for sedition, even if the slavery opponents had never entered those states. Northerners who intentionally or unintentionally brought antislavery literature when visiting the South might be jailed, and southern whites who denounced slavery faced jail or exile. As the great southern-born historian Clement Eaton noted in his 1940 classic, The Freedom-of-Thought Struggle in the Old South, the antebellum South imposed an “intellectual blockade” on meaningful discussions of slavery.

Ironically, it was a slaveholding Virginian, George Mason, who enshrined the idea of vigorous public discourse and debate. He did so in the Virginia Declaration of Rights, with the provision that “the freedom of the press is one of the great bulwarks of liberty and can never be restrained but by despotic governments.” Mason further recognized that free speech was tied to freedom of religion: “All men are equally entitled to the free exercise of religion, according to the dictates of conscience.” In 1789, Virginia’s James Madison encapsulated both notions in what became the First Amendment—forbidding the government from abridging the freedom of speech, press, and assembly, and guaranteeing freedom of religious belief and protection from government-sponsored religion.

The U.S. Constitution and our national commitment to open debate mean that DeSantis is free to believe whatever he wants about gender rights. He has a First Amendment right to spout off. But as a government actor, he is not free to impose his beliefs on others. Nor is he allowed to tell a corporation what language it can use to describe the rights of others. (DeSantis led an assault on tax benefits and regulations that favor the Walt Disney Company after the California-based corporation criticized the ”Don’t Say Gay” law.) In Citizens United v. Federal Election Commission, the Supreme Court ruled that corporations have a First Amendment right to freedom of expression. Thus, Disney is free to express its views on public issues. 

DeSantis’s bill to deprive Disney of its ability to run Walt Disney World smoothly is political retaliation that smacks of government censorship. He is changing economic and tax policies to harm Disney for its speech. Hopefully, the courts will explain the meaning of the Constitution to the good governor. 

This controversy is hardly new and reflects a long southern tradition of suppressing speech that rocks the political or cultural boat.

In the 1830s, after David Walker’s death, mobs attacked the Charleston post office, burning mail from northern states to prevent the dissemination of newspapers, pamphlets, and other literature denouncing slavery. Until the Civil War, freedom of expression mostly ceased to exist in the slaveholding states.

Anyone could praise slavery. People could debate the best way to treat slaves, the most efficient way to use their labor, the most effective ways to punish them, or what to do with the South’s free Black population, which surpassed a quarter of a million people in 1860. But no one in the South was free to criticize slavery.

In some ways, southern suppression of speech led to secession and civil war. Southern whites never heard arguments against slavery or learned that northerners were not the South’s enemies but rather, the enemies of human bondage. Southern whites also never understood that the free discussion of ideas was central to the political and social culture of the non-slaveholding states.

The last meaningful southern debate on the slavery issue took place in the Virginia House of Delegates in January 1832. In the wake of Nat Turner’s Rebellion, many Virginians petitioned the legislature to do something about the danger of slavery. Thomas Jefferson Randolph, the grandson of the primary author of the Declaration of Independence, proposed that the legislature draw up a gradual abolition plan to be submitted to the voters. After a 15-day debate, the house defeated the proposal. After this, no one could publicly consider doing something about slavery. 

The Virginia debate crystallized the growing argument in the South that slavery was a positive good and that the region could not tolerate any opposition to it, even by white southerners. Thomas R. Dew’s pamphlet Review of the Debate in the Virginia Legislature of 1831 and 1832 went a long way to ensuring that Virginians would follow the Deep South in allowing no meaningful discussions of slavery. Like discussing “gay rights” in Florida schools and apparently at Disney World, discussing abolition in Virginia and the rest of the South became taboo.  

Southern suppression of free speech began before 1832 and continued until the end of the Civil War. In 1819, Maryland prosecuted Reverend Jacob Gruber, a Methodist revivalist, for denouncing the sin of slavery while urging slaves to be peaceful. A young Maryland lawyer, Roger B. Taney, successfully defended Gruber because he had not broken any laws and had not incited any violence, and freedom of religion protected his sermon. Gruber was lucky. He had a fine attorney who persuaded the jury to acquit him, in part on religious freedom grounds, since it was well known that Methodists opposed slavery. However, in 1861, Rabbi David Einhorn had to flee Baltimore in the middle of the night after publishing a theological attack in German on slavery. The state might not have prosecuted Einhorn, but neither would it protect him from proslavery vigilantes. Like DeSantis, Maryland’s governor supported attacks on anyone who used words he did not like, such as abolition or freedom.

In 1836, Dr. Reuben Crandall was prosecuted in Washington, D.C., because someone had borrowed a few antislavery pamphlets he had brought with him from the North. These pamphlets fell into the hands of the police, who arrested Crandall simply for having brought them to the nation’s capital, where slavery thrived and was fully protected by law. Crandall had not distributed them, but he was nevertheless charged with five counts of libel and sedition and jailed. The prosecutor was Francis Scott Key, author of the Star-Spangled Banner. Key may have venerated the flag, but he did not support the idea of freedom the flag represented. After spending eight months in jail awaiting trial, Crandall was, fortunately, acquitted.

In 1850, John C. Calhoun argued on the floor of the U.S. Senate that the only way to secure harmony in the Union would be for the northern states “to cease the agitation of the slave question.” In other words, Calhoun argued that it was not enough for the southern states to suppress freedom of speech and the press when it came to slavery. The North had to do so as well. A decade later, Calhoun’s home state denounced freedom of expression in the North in its Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina. The declaration justified secession in part because the northern states “have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States.” Furthermore, they allowed their citizens to publish “books and pictures” encouraging opposition to slavery and supporting that idea that slaves should be free.

When it came to slavery, the South opposed free speech for whites as well as for free blacks and slaves. In 1857, the North Carolina native Hinton Rowan Helper published The Impending Crisis of the South. Using census data, Helper denounced slavery on economic grounds, arguing that it undermined southern progress and prevented most whites from achieving prosperity. Most southern states banned the book. Helper published the book in New York, and it was not safe for him to return to North Carolina until after the Civil War.

The end of slavery did not, of course, end southern suppression of civil liberties. Pre–Civil War laws suppressing freedom of speech remained on the books. Segregationists supplemented these repressive laws with racial violence and lynching. Police and other officials not only did little to stop lynching but also were often complicit in the violence.

In 1932, Angelo Herndon, a Black activist in Atlanta, led an integrated march of about 1,000 people to protest unemployment and lack of government aid amid the Great Depression. Authorities charged Herndon with “insurrection”—a capital offense—for this peaceful exercise of freedom of speech. Herndon was convicted and given a “lenient” sentence of 18 to 20 years on a chain gang. He had dared to express support for integration and had challenged government policies. After two trips to the Supreme Court in 1937, Herndon’s conviction was reversed on First Amendment grounds. In the 1950s and 1960s, we know that thousands of Blacks and whites were arrested and often beaten by police for expressing their opposition to segregation and racism.

In Alabama, government officials sued The New York Times, other media, and civil rights leaders, including Reverends Ralph Abernathy and Joseph Lowery, for an advertisement criticizing Alabama authorities for their harassment of Black college students and Martin Luther King Jr. These officials won $500,000 judgments—a huge amount at the time. The suits were designed to prevent the media from reporting on segregation and the violent attacks on civil rights demonstrators and to personally bankrupt the Black ministers, such as Lowery, whose car was seized by the state court to pay damages to the public officials. The suits were, in the end, about suppressing bad words—like equality or integration. In 1964, in New York Times Co. v. Sullivan, the Supreme Court stopped this misuse of power by Alabama officials.

In 1963, authorities in Danville, Virginia, prosecuted more than a dozen civil rights leaders for “conspiring to incite the colored population of the State to acts of violence and war against the white population.” What had they done? They had protested ongoing segregation in restaurants and other forms of discrimination. The authorities used an 1859 law passed in the wake of John Brown’s raid on Harpers Ferry. This slave-era law to suppress freedom of speech had devastating effects on Danville’s Black community as the litigation dragged on for a decade.

In 1964, James Chaney, Michael Schwerner, and Andrew Goodman—one Black man and two whites—had been handing out leaflets near Philadelphia, Mississippi, and explaining to Blacks in the state how to register to vote. They were arrested and viciously murdered for peacefully exercising freedom of speech. 

DeSantis is now misusing his power to suppress Disney’s free speech for opposing his homophobic agenda. He follows in the footsteps of many other southern politicians who stopped speech they did not like to protect slavery and segregation. He seems bent on channeling not only John C. Calhoun and George Wallace but also his non-U.S. neighbor farther South, Fidel Castro, by trying to silence those who disagree with him. DeSantis’s antics illustrate once again that history repeats itself, the first time as tragedy and the second time as farce. But, sadly, even farces can be tragic. 

The post The Racist Roots of Ron DeSantis’s “Don’t Say Gay” Law appeared first on Washington Monthly.

The Supreme Court has already made it exceedingly difficult for voting rights plaintiffs to successfully challenge election rules. Now, through emergency petitions involving gerrymandering, Republicans in North Carolina and Pennsylvania are asking the Court to further cabin the right to vote. If their ploy succeeds, state politicians will have virtually no checks on their authority to dictate election rules. 

The current state of the law is already bleak for those who seek to uphold the right to vote and prevent state lawmakers from imposing harsh rules that make it difficult for some voters to cast a ballot that will count. Although the Supreme Court once considered voting to be a “fundamental right,” over the past few decades the Court opened the door to greater state regulation of the electoral process. The Court offered the somewhat-bland statement in 1974 that “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” But it has twisted that phrase as it has adopted a doctrine that provides states with virtually zero oversight of their electoral schemes, even when voters are harmed. No longer does the Court robustly protect the constitutional right to vote. Instead, election law jurisprudence is one of extreme deference to states. The Court has also invoked a relatively new rule, known as the Purcell principle, that says federal courts should not invalidate state laws too close to an election—though how close is too close is anyone’s guess. The message: States can violate the right to vote for at least one election cycle. 

But state constitutions have offered voting rights advocates a meaningful avenue to challenge unfair election rules. Every state constitution (besides Arizona’s) affirmatively grants the right to vote to the state’s citizens. State founding documents go further than the U.S. Constitution’s implicit—yet still important—protection of the right to vote. Many state courts have taken their roles seriously in properly construing that language. State supreme courts in North Carolina and Pennsylvania both cited clauses that elections must be “free” (North Carolina) or “free and equal” (Pennsylvania) to strike down the gerrymanders that Republican-controlled legislatures drew in those states.

Enter the new emergency appeals to the U.S. Supreme Court. The states in these cases are making a bold new claim: that the state supreme courts have no power to review a state election law under the state constitution. Normally the Supreme Court will only resolve questions of federal law or that invoke the U.S. Constitution. These cases do neither. 

North Carolina and Pennsylvania Republicans, however, are asking the Court to intervene based on an argument known as the “independent state legislature doctrine.” Their claim, they say, is simple: The U.S. Constitution’s election clause says that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” (There is similar language in Article II about presidential electors.) They read this language to suggest that the state legislature—and only the state legislature—may promulgate election rules. A state supreme court that invalidates a redistricting map or adopts its own constitutional map because the legislature has failed to act, they say, is unlawful under the U.S. Constitution because it is not the state “legislature” doing it.

Three conservative justices (Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas) mentioned this theory in their separate opinion in Bush v. Gore in 2000. At least four of the current justices embraced this theory during the litigation leading up to the 2020 election. Justice Samuel Alito, joined by Justices Thomas and Neil Gorsuch, indicated that they would have used the doctrine to declare that the Pennsylvania Supreme Court did not have the authority to extend the absentee ballot receipt deadline during a pandemic, even though the state court ruling sought to effectuate the state constitutional right to vote. Justice Brett Kavanaugh said a similar thing in a case from Wisconsin. Gorsuch also wrote to invoke the theory in a case from North Carolina that also involved the absentee ballot receipt deadline. And although Chief Justice John Roberts did not join these opinions in 2020, he indicated in a dissent in 2015that he agreed with a rule that only the state legislature can promulgate election rules. Justice Amy Coney Barrett, new to the Court in October 2020, did not rule in the 2020 election cases, so we don’t know her views. But with Thomas, Alito, Gorsuch, and Kavanaugh already on board, the Court only needs one more justice to make this theory binding precedent. 

Far from a simple argument about the text of the U.S. Constitution, however, the independent state legislature doctrine would have far-reaching consequences. It would implicitly invalidate state constitutional language that robustly protects the right to vote. Moreover, if only the legislature may act to promulgate election rules, then state legislators have essentially a free pass to do whatever they want. They already know that the Court won’t question them under the federal Constitution given the undue deference given to states on voting rights. State judges, invoking their state constitution, wouldn’t be able to stop them either.

The doctrine can’t be right as a matter of fundamental principles of constitutional law and judicial review. Courts exist in part to vindicate constitutional rights. It is absurd to suggest that state courts cannot protect the state constitutional right to vote because only the legislature can act in this area. A legislature exists pursuant to the authority given—and constraints imposed—by the state constitution. In fact, the current North Carolina Constitution is the product of the state legislature’s creation. It is nonsensical to say that state legislatures have free rein, devoid of any limits from the state constitution. If state courts have no power to stop the state legislature from violating the state constitution, then the world really has been turned upside down.

The doctrine is also wrong as a matter of history. A majority of the Supreme Court has rejected it already, as recently as 2015. Moreover, just three years ago, when rejecting a challenge to partisan gerrymandering under the U.S. Constitution, the Court stated, “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply”—meaning that state courts do have authority in this area. 

President Joe Biden, in his State of the Union address, declared that “the most fundamental right in America is the right to vote—and to have it counted. And it’s under assault.” It was already under assault in part from the Supreme Court’s restrictive rulings under the U.S. Constitution, which give too much power to state legislatures to craft election rules. Adopting the independent state legislature doctrine would cement that assault, as it would cut off the ability of state courts to protect voters under state constitutions. 

The North Carolina and Pennsylvania emergency appeals are about far more than gerrymandering. They are about whether state courts can oversee legislatures regarding the very rules that put those legislators in office. Of course, current politicians, who craft the rules of the game to help their side win in the future, are the last people who should receive deference for their election laws. If the Supreme Court agrees with these states and adopts the independent state legislature doctrine, then the foxes truly will be guarding the henhouses. 

The post Another Scheme to Curtail Voting Rights appeared first on Washington Monthly.

One spring night thirty-some years ago—I am fairly certain it was Monday, April 2, 1990—Walter Dellinger, then a law professor at Duke University, had a dream. Daylight Savings time had begun the previous Sunday, and in his dream, federal agents visited his Chapel Hill home to investigate his time-change compliance. 

Every clock in the Dellinger house had been moved ahead one hour, he told them. But they were not reassured. “Look here, professor,” one said. “Last Friday you woke up at 7 a.m. and went to Sutton’s Drug Store for breakfast at 8. On Monday, you woke up at 8 a.m. and went to Sutton’s Drug Store for breakfast at 9. Do you call that compliance? Aren’t you being rather formalistic?”

At that point, Walter told me, he woke up, no doubt chuckling at the witty jurisprudential joke his subconscious had teed up for him. It takes a special kind of lawyer to dream of the difference between “formalism” and other statutory hermeneutics; it takes one in a million to make that difference funny. 

Dellinger died Wednesday at the age of 80, after a career that marked him as one of the legal giants of our era. Many remembered—and justly celebrated—him as a brilliant and prolific scholar, a titan of the Supreme Court bar, an inspiring teacher and mentor to generations of bright proteges now in elected office, federal and state government, and on the bench. He was also a government lawyer whose advice was important to both Bill Clinton and Barack Obama. Key officials in the Biden White House sought his advice almost literally until the day he died.

But when I heard of his death, I thought of that dream he told me about when I was his student. What came to mind were the dozens of gentle but outlandish imaginings and jokes with which he amused students, colleagues, peers, and courtroom opponents—jokes that defused some of the terror that attends law and its practice.

Walter can be described with the same words the novelist Rafael Sabatini used to introduce his most famous character, Scaramouche: “He was born with a gift of laughter and a sense that the world was mad.” It’s a gift that helped make his career one to be admired—not only for its effect on American law, but for the joy that he spread as he pursued his more serious dreams. He made the practice of law, often dry and lifeless, into something fully, vibrantly human. And because of his inimitable sense of humor, he died with almost no enemies, and many, many friends, even though he had spent years at the forefront of divisive legal issues.

Walter was my first law professor, and beyond question the most memorable. His teaching method was arresting; he would often stride into our classroom with a casebook under his arm and ask nobody in particular, “What was the assignment today?”

Someone would call out the case or issue we were expecting to cover, and Walter would put the book aside. “West Coast Hotel v. Parrish,” he would say. “Funniest thing, I was thinking of that case just last week.” Then a series of variations on the issue of the day would follow; anecdotes, counterfactuals and hypotheticals, links to other seemingly unrelated cases, and most of all, analysis of the turns and choices the lawyers, and the justices, had made, and what other issues had come before the Court that term, and what some Justice had written in his memoirs, and what arguments or strategies might have altered the outcome. Most days he didn’t even need to open the book. 

It was like getting saxophone lessons from Charlie Parker. For three decades I have remembered his vision of constitutional law not as a stately progression of doctrines created by all-wise judges, but as a contingent process, the sum of hundreds of human choices, some erroneous, some malign, some far-seeing, and most of them faintly comic. 

The obituaries have recorded the important facts. He was born in Charlotte, N.C., won a scholarship to the University of North Carolina at Chapel Hill and another to Yale Law School. After graduation, he journeyed to Oxford, Mississippi, to teach civil and political rights at the University of Mississippi School of Law, on a campus that had, only a few years before, been desegregated at the point of U.S. Army bayonets. Then from there he clerked for Justice Hugo Black, and from there to Duke, where he taught full time until he joined the Clinton White House counsel’s office in 1993. 

In the White House, he helped draft executive memoranda that the new president signed on his first day in office, sweeping away Reagan-era anti-abortion policies in research and medical-care funding, military policy, pharmaceutical regulation, and foreign policy. A few years later, he transitioned over to the Justice Department’s Office of Legal Counsel, and then the Solicitor General’s office, where, as acting SG, he argued nine cases before the high court—one third of his astonishing lifetime total of 24. After leaving government, he headed the appellate practice at O’Melveny, one of the nation’s most venerable super firms.  

But this account, glittering though it is, understates the tale. Walter’s life was a generational epic of a region emerging from cultural slumber and racial dictatory, a story worthy of a Thomas Wolfe or a Pat Conroy. It’s first character would be his mother. 

When Walter was very young, his father, Walter Dellinger II, died without warning, leaving the family in desperate financial need. Grace Dellinger went to work as a salesclerk in a department store, at a time when women’s place in the workforce was tenuous at best. She supported Walter and his two sisters until they launched into the world, and she remained in some ways his best friend, and certainly biggest supporter; while she lived, they visited each other often, but by agreement never strained the friendship by spending more than one night at a time under the other’s roof.  

The next setting was Chapel Hill, a surprising and transformative place for a small-town boy (Charlotte at the time had fewer than a quarter-million residents), offering entry into an educated milieu he had only dimly glimpsed before. His UNC roommate, he said, was so provoked by his hillbilly pronunciation of “Sa’rdy” that he fastened a large placard—SAT-UR-DAY—on the ceiling over Walter’s bed. 

At UNC, he met Anne Maxwell, a classmate from an old New Orleans family whom he found so glamorous that he assumed she would never look twice at a poor Piedmont boy. One summer, unable to stand her allure, he impulsively hitchhiked to New Orleans to pour out his heart. I am not sure he ever quite got over the surprise of her acceptance. 

After law school, two years in Mississippi—the heart of the Southern darkness, where violence still hung in the humid air—Hugo Black himself granted Walter a kind of papal blessing by hiring him to become one of his law clerks. Walter’s success led to more success and adventures away from home. But he was always grounded in the North Carolina clay, where he returned for the years before his death.

It was probably the epic quality of this tale that underlay our friendship; I was only nine years younger than Walter when I first met him in a classroom; as a Southern novelist myself, I knew a larger-than-life character when I met one. We were both Southern-born white liberals, children of the Civil Rights era who had seen our native region transformed by the power of law to command respect from many who opposed the Supreme Court’s decrees. Law, to both of us, seemed like a force that could reach down into ordinary lives to lift burdens and open doors.

But what really sealed the deal was our mutual recognition that underneath the solemnity of law and the savagery of politics, the whole tragic spectacle was also, at some level, an enormous joke played by a creator with a sense of humor even stranger than our own. And the joke, to be sure, was on us.

For all Walter’s fierce ambition, he never took himself too seriously. He called me once because he had heard that a speaker at a conference I’d attended had referred to him as “too old” to be considered for the Supreme Court. “Why didn’t you stick up for me?” he asked plaintively. “At least you could have said that I am very immature for my age!” Not even the approach of death was entirely serious. He told me his doctor had told him that he could expect to live about five more years with his chronic lung condition. 

“Then I asked him again and he said, ‘two years.’ I said, ‘Last time I asked, you said five years,’ And he said, ‘Walter, that was three years ago.’”

Walter never worked as a journalist, but he understood the importance of airing constitutional issues for the general public. He authored an essay, “Say Amen or Else,” about the loneliness of being a Southern Catholic boy who walked out of the elementary school classroom when “voluntary” Bible study began. The piece appeared in The Washington Post a few days before the Supreme Court was to hear a case that observers expected to make it easier for schools to conduct “voluntary” prayer sessions. As it turned out, though, the Catholic Justice Anthony Kennedy’s opinion rejected the practice; he understood it as part of the psychology of coercion in public schools. At a Supreme Court event, I once heard the Post piece referred to as “the most influential amicus brief of the entire term.”

 While he was at O’Melveny, the firm took on the case of a drug dealer whose conviction was obtained by attaching—without a warrant—a GPS tracker to his car and mapping his movements for a month. On the morning the case was to be argued, National Public Radio’s Supreme Court correspondent, Nina Totenberg, aired an interview with Walter. Under the government’s no-warrant standard, he told her, it could put trackers on the cars of all nine Supreme Court justices and track them for a month. That morning, at the seven-minute mark in oral argument, Chief Justice John Roberts asked the government’s lawyer whether that, in fact, would be legal. “You think you’re entitled to do that under your theory?”

Apparently caught off guard, the lawyer answered that it would be perfectly legal. That did not seem like the right answer; O’Melveny’s client won the case. “Always listen to ‘Morning Edition,’” Walter told me. 

His last moment in the public eye, days before his death, was a column in The New York Times endorsing President Biden’s pledge to name a Black woman to the Supreme Court.

I said at the outset that Walter left behind few enemies. Indeed, I personally know of only one true enemy Walter had—North Carolina’s much-feared Republican Senator, Jesse Helms. During the Clinton years, Helms, along with his sidekick, Senator Lauch Faircloth, bitterly opposed Dellinger’s nomination as head of the Office of Legal Counsel. It’s a battle that, years later, probably prevented his moving from Acting SG to just plain SG. It was also a dark cloud over a potential nomination to the Fourth Circuit, which would have been a steppingstone to the Supreme Court seat he dreamed of. 

Helms explained that he opposed Walter because of his work to block the far-right Reagan nominee Robert Bork’s nomination. There was another factor undoubtedly behind Helms’ antagonism: His bitterness that Walter had served as a prominent supporter of two Democrats who ran against Helms and lost. Knowing both men, though, I think it went deeper than that. Helms hated Walter, I think, because he was a living rebuke to the central tenet of Helms’ self-image—the idea that he, with his xenophobia and racism, was the tribune of Southern whites of humble origins upon whom liberal values were being imposed by Yankee elitists and undeserving Blacks. If one must have enemies, one could do far worse than alienating Jesse Helms and Lauch Faircloth. 

And if one needs a friend, one could do far worse than my daughter, Maggie. One afternoon in 1992, Walter dropped by our house in Chapel Hill as our family was packing for a move to Eugene, Oregon. Spotting six-year-old Maggie on the floor, Walter plopped down and began rolling a toy ball back and forth with her. Within half a dozen rolls, she was telling him of her worries about a new school—worries she hadn’t shared with her parents until then. 

Along with the imaginary interrogation by the Time Police, that moment of play is among my most vivid memories of Walter Dellinger, legal giant. It calls up lines from British poet W.H. Auden’s sonnet “Edward Lear,” about the eccentric English artist who became the greatest nonsense writer of his time. “Children flocked to him like settlers,” Auden wrote. “He became a land.”

Walter Dellinger became a land and leaves a legacy broad and deep enough to house a generation of his grateful children in the law. I am not and could never be one-tenth the lawyer he was, but I matched him joke for joke. So there is room for me there in the humor section.

God willing, I shall dwell in that house of mirth for the rest of my days.  

The post Walter Dellinger’s House of Mirth appeared first on Washington Monthly.

Wisconsin, North Carolina, and South Carolina are among the most closely watched states in the 2020 election, for good reason. The first two, as swing states, could affect who wins the White House, while the latter two have close Senate races that could determine which party controls Congress. They also have something else in common: the dubious distinction of being among the handful of states that require a witness signature on absentee ballots.

As a security matter, demanding a second signature on a mail-in ballot is “utterly useless,” notes Phil Keisling, former Oregon Secretary of State, and a Washington Monthly contributing editor. Vote-by-mail systems in nearly all states already check voter’s signatures against voter registration records, so requiring a witness signature amounts to a “superfluous and unnecessary obstacle to voters,” he adds.

The requirement is particularly burdensome for older voters who live alone and have difficulty finding witnesses, especially in the middle of a surging pandemic. Understandably fearful of leaving their homes to find a co-signer, these voters are forced either to mail in their ballots without a second signature and risk having them thrown out or not vote at all if they can’t find someone to sign for them. That’s why state courts over the last several months have overturned witness signature mandates in Rhode Island, Virginia, Minnesota, and Alaska. Yet such restrictions are still on the books in Wisconsin, North Carolina, and South Carolina. Sure enough, that has already created problems. In North Carolina, for instance, the Associated Press reported last month that  “lack of a witness signature or other witness information has emerged as the leading cause of ballots being set aside before being counted in North Carolina, with problems disproportionately affecting Black voters in the state.”

In past elections, the requirement has not been much of a problem because few people in these states voted absentee and, if they did, they had a handy workaround. They could get their local letter carriers to co-sign their ballots or ask a clerk at their local post office to do so.

In this election cycle, however, not only are vastly more residents choosing to vote by mail—absentee ballot requests in Wisconsin, for instance, have more than doubled compared to 2016—but, in a much under-covered move, the U.S. Postal Service under Postmaster General Louis DeJoy issued an order this summer forbidding Postal Service employees from providing witness signatures on voters’ absentee ballots.

Over the last several weeks, postal union officials have pushed DeJoy’s top lieutenants to rescind the prohibition. They’ve argued that it’s a service that letter carriers and clerks have long offered and is more necessary than ever in an election marked by COVID-19 and record levels of absentee voting. Last week, however, the USPS national management refused a final plea from the unions to reverse the order.

That could have major implications. Presidential polling margins in North Carolina and Wisconsin are narrow: +1.8 for Biden in the former, +4.6 for Biden in the latter, according to the latest Real Clear Politics average. And the Senate races in South Carolina between Lindsey Graham and Jaime Harrison and in North Carolina between Thom Tillis and Cal Cunningham are similarly close. If enough voters are impacted by the witness signature requirement in those states, it could influence the outcome of the election.

In mid-July, USPS issued the order forbidding postal employees from co-signing mail-in ballots, according to Vice. This was around the same time that DeJoy was enacting policies that dramatically slowed mail delivery. “As the 2020 election cycle continues, customers may ask retail clerks to sign mail-ballot envelopes as witnesses,” warns an August 18 memo sent by USPS headquarters to postal employees. “The Postal Service should not provide a witness signature in their official capacity.” (Emphasis theirs.)

After a backlash from lawmakers and activists—and lawsuits from multiple state attorneys general—DeJoy paused most of the USPS’s cost-cutting measures, including getting rid of sorting machines in processing centers and blue mail boxes nationwide, until after the election. But the order barring USPS employees from providing witness signatures got nowhere near as much attention from DeJoy’s critics—possibly because its effects would only be felt in a handful of states. It remains in force.

The only organizations that have tried to get USPS to drop the rule have been the four major postal unions—the American Postal Workers Union, the National Association of Letter Carriers, the National Rural Letter Carriers Association, and the National Postal Mail Handlers Union. They have been conducting weekly meetings since early this summer with the Postal Service’s national leadership to ensure a smooth vote-by-mail election. During an October 15 meeting, union representatives pushed DeJoy’s senior advisers to reverse the witness signature order, especially since voting is well underway across the country.

One week later, on October 22, the officials said they would not undo the order, citing the need for operational efficiency—the same rationale DeJoy used to defend some of the USPS’s other moves—and that it was too late in the process to initiate a policy change. Those arguments infuriated APWU President Mark Dimondstein. “It’s an insult to postal workers—to think we can’t do this,” he told me. “It’s the most trusted agency. I mean, we process passports, for crying out loud. Why wouldn’t we be able to help people cast their ballot?”

The Postal Service also claims that the ban on co-signing ballots is a longstanding policy. “Postal Employees are prohibited from serving as witnesses in their official capacity while on duty, due in part to the potential operational impacts,” David Partenheimer, a USPS spokesman, told me. “This policy has not changed.” When I asked him to provide evidence that the policy existed before the election, I got no response. Officials from the National Association of Letter Carriers have gone scouring through old records in recent weeks and could find no trace of the policy before this summer.

The assertion that the ban on USPS employees co-signing absentee ballots is a longstanding one was certainly news to voters in Alaska, where residents in remote parts of the state have relied on the service for decades. In August, elections officials were stunned when they received an influx of complaints from customers saying their letter carriers told them they could no longer sign their ballots. “Sooo [sic] I went to the post office to mail my absentee ballot, and even tho [sic] it says very clearly on the instructions that postal officials can sign your witness affidavit, the folks working the counter downtown said they were not allowed,” wrote one voter on Twitter. “Why?”

The state’s elections director then reached out to the Postal Service for clarification. Within 24 hours, USPS confirmed the order. “There has never, never, in my 40 years of dealing with this, ever been an issue,” Jim Raymond, the branch manager of the National Association of Letter Carrier’s district that covers the Anchorage area, told me.

Luckily for Alaskans, the state’s Supreme Court ruled this month that voters wouldn’t need a witness signature to cast absentee ballots in that state. Voters in Wisconsin, North Carolina, and South Carolina will not be so fortunate. Elections officials in all three of those states told me that until July, they had never heard of a rule banning postal employees from co-signing ballots.

How the ban might affect election outcomes will be hard to know, even after November 3. Neither the USPS nor elections boards have ever bothered to keep track of how many ballots are co-signed by postal workers. Moreover, the real measure of the ban’s impact would involve calculating how many voters in those key states, many of them voting by mail for the first time, might have asked a postal worker for help had that option been available and publicized by USPS, campaigns, elections boards, and the media. Instead, of course, the opposite is the case. What’s clear is that if USPS leadership wanted to limit the number of mail-in ballots without incurring provable blame, this would be a good way to do it.

The post Louis DeJoy’s October Surprise appeared first on Washington Monthly.

The Voting Rights Act, passed in 1965, is one of the most venerated statutes in American law. Its provisions guaranteed the right to vote and ended the subterfuges used by Jim Crow-era politicians to deny the franchise given to Black Americans by the Fifteenth Amendment. It required, for instance, multiple states famous for voter suppression to seek approval from the federal government before changing election rules. (This provision of the monumental civil rights law was effectively struck down by the Supreme Court in 2013.) The Act outlawed literacy tests, a requirement regularly used to disenfranchise Black citizens.

Several years after the VRA passed, the North Carolina governor, legislature, and state bar worked to revise the state’s constitution. In the late 1960s, the legislature approved seven major amendments on topics from taxes to voting rights that, collectively, rewrote most of the document. It then sent the changes to voters for approval. In the 1970 election, North Carolina residents signed off on each revision, save for one: eliminating the state’s literacy test. Every future attempt to take it out has failed. To this day, Article VI, Section 4 of the North Carolina Constitution requires that voters “be able to read and write any section of the Constitution in English.”

This provision is unenforceable, and so it’s tempting to dismiss it as little more than a pointless artifact. But its very existence is an open wound. “It’s just an insult to the African-American citizens of North Carolina, and to any right-thinking citizens,” said Kelly Alexander Jr., a state representative and former president of the North Carolina NAACP. He described the text as “along the same vein” as memorials to Confederates. “If a statue is offensive, a provision in the constitution is even more offensive,” he said.

It isn’t just the continued stain of the literacy-test provision that makes it harmful. The durability of Section 4 is echoed by North Carolina’s recent hostility toward voting rights. In 2013, led by a coalition that included Alexander, the state’s House of Representatives unanimously passed a bill to start the process of eliminating the literacy test from the constitution, only to have it die in the Senate. When I asked why the Senate never took it up, Alexander told me that while both chambers are controlled by Republicans, the Senate “is a much more conservative body.” Its leadership, he argued, is not enthusiastic about passing ballot measures that could “energize folks who might vote against their candidates.”

But the Senate’s GOP leadership is enthusiastic about passing measures that would demobilize those folks. Two months after the 2013 literacy test amendment stalled, both the House and the Senate passed legislation that slashed the number of early voting days, eliminated same-day registration, and made photo IDs mandatory to vote. This curtailment of voting rights fell hardest on Black residents. At the time, Black people were 23 percent of N.C.’s population. In 2012, they were 28 percent of its early voters, 33 percent of voters who registered on Election Day, and 34 percent of the population without IDs. A federal appeals court struck the law down, finding that it “target[ed] African Americans with almost surgical precision.” (The Supreme Court declined to review the case.)

In 2017, the N.C. House of Representatives again passed a bill that would begin the process of cutting the literacy test from the constitution. It again died in the Senate. But the state constitution changed in other ways. In 2018, North Carolina residents approved an amendment to Article VI requiring a voter ID law. The legislature quickly passed one. To make voting even harder, it then cut the number of early polling locations.

North Carolina isn’t the only state with a literacy test festering in its constitution. South Carolina, Wyoming, Delaware, and Massachusetts also have constitutions that require, or at least call for, a literacy test. South Carolina’s provision, which says that the General Assembly “may require each person to demonstrate a reasonable ability, except for physical disability, to read and write the English language as a condition to becoming entitled to vote,” was added to the constitution in 1971—well after the Voting Rights Act took effect.

These provisions are legally hollow, but just because they’re present in both red and blue states, the North and the South, Joe Biden’s home as well as Dick Cheney’s, it doesn’t make them any less ugly. They are also reminders that the right to vote is under attack in various forms. Trump, Attorney General William Barr, and many GOP politicians and activists charge that mail-in ballots are rife with fraud. They are suing state officials to stop new efforts to expand voting from home. Jim Crow-era voting restrictions were also justified with claims of voter fraud.

I asked Alexander if he was worried the North Carolina literacy test might one day come back into force, given America’s contemporary fights over the franchise. “It’s possible that could happen,” Alexander told me. He laid out a set of conditions that, while collectively unlikely, are each individually imaginable—“if the Supreme Court goes off the rails, if Congress goes completely off the rails, and we re-elect somebody that does not have a sense of the kind of historical progress that the nation has made.”

But Alexander was optimistic we’d avoid this scenario: “Folks of goodwill are fighting awfully hard to try and prevent that from happening.”

The post North Carolina Still Has a Literacy Test On the Books appeared first on Washington Monthly.

I’ve already written twice about Donald Trump’s decision to kind of/mostly move the 2020 Republican National Convention from Charlotte, North Carolina, to Jacksonville, Florida. In my last installment, I noted that it would be difficult to meet the president’s goal of having a full house for the television cameras, in part, because people cannot be in two places at the same time.

The Republican Party is contractually obligated to hold its national convention in Charlotte, North Carolina, but Democratic Governor Roy Cooper would not guarantee that state health restrictions could be lifted for the Aug. 24-27 event. The solution, then, was to keep the convention in Charlotte in a strictly legal sense by holding all the regular business meetings there, but to find an alternative location for the speeches and pageantry…

… People can’t simultaneously be in Charlotte holding a meeting on the Republican platform and in Jacksonville listening to Mike Pence or Melania Trump give a speech. Trump might have to hire “extras” to fill the gaps.

I suppose I was a bit naïve. There was an obvious solution but I didn’t see it because I don’t have enough of a criminal mind.

Now, mind you, I did understand that the only reason the Republicans were keeping part of the convention in Charlotte was to provide a legal defense against reneging on their contracts. As the Charlotte Observer reports, there will be wrangling over the decision:

Ed Driggs, one of two Republicans on the Charlotte City Council, had once hoped for an exciting week-long convention that would show off his city and his party.

On Thursday, as news dribbled out about just how scaled-backed Charlotte’s piece of the convention will be, Driggs said, “I guess I’m disappointed it’s so little.”

Now that the Republican National Committee has officially voted to move most of the convention out of Charlotte, Driggs said, “the big question is: How do we (the city) deal with the contracts in place? Who is responsible for those? (The parties to the contracts) are still trying to work it out.”

The Charlotte host committee, for example, has “an interest in not being saddled with liabilities and expenses,” Driggs said.

On Wednesday the committee, charged with raising almost $70 million for the event, said the move to another city violates contracts with the city and other local groups.

“This decision is in clear violation of the agreements made with the City of Charlotte, the County of Mecklenburg, Charlotte Regional Visitors Authority, and the Charlotte Host Committee,” the committee said in a statement Wednesday.

To maintain the fiction that these contracts are being honored, the proceedings in Jacksonville are being called a “celebration” rather than a “convention.” Whether this will be convincing in court is for lawyers, judges, and perhaps a jury to decide, but it still doesn’t solve the problem of people having to be in two places at the same time. The elegant solution was sitting right in front of my face and I couldn’t see it.

On Wednesday, the RNC’s executive panel voted to leave the 2016 party platform in place, with absolutely no edits. This will have the absurd result of leaving in place language about the president that clearly refers, in a critical manner, to Barack Obama. It will leave harsh language about deficit spending that applies with more force to the Trump administration than its predecessor. It will keep descriptions of the Middle East that no longer have any application, and in some cases it will pledge Trump to promises he has already kept. It also means that there will be no adjustments made to reflect an evolution of the party or national culture over the last four years.

The decision by the Wednesday means the GOP will maintain positions in the 4-year-old policy blueprint — including opposition to same-sex marriage and a nod to gay conversion therapy — and decline to stake out new positions on topics such as police reform, gender identity and third-trimester abortions.

Of course, both moderates and social conservatives are furious. They’ve both been gearing up to battle over the party platform, and now there will be no debate at all. Yet, by eliminating the most important piece of party business, the RNC no longer has to worry that people will be in Charlotte hashing out party principles when they should be in Jacksonville adoring the president.

The Republican National Convention is officially on the move to Jacksonville, Fla., after it will spend just a single day in Charlotte this August, the RNC committee announced Thursday night.

It will host what the Republicans are calling a “celebration” of President Donald Trump’s re-nomination…

…The convention was once expected to span four days in Charlotte — bringing in 50,000 people and pumping more than $150 million into the local economy.

Instead, around 336 delegates will conduct the convention’s official business Monday, Aug. 24. Then they’ll head to Jacksonville — and join more than 2,000 other delegates for three days of speeches and celebrations, a top GOP official said Thursday.

So, in order to manage the limitations of the time/space continuum, there will be no changes to the Republican platform in 2020, and anyone who cares about the platform will just have to suck it.

This is a final confirmation that the Republican Party has become a cult that stands for nothing and exists only to fluff Donald Trump’s ego. It was completely predictable but I failed to foresee it because I was still operating in the world where contracts are honored and political parties are made of up people who care about policy.

The post The GOP’s Revealing Decision Not to Debate on a 2020 Platform appeared first on Washington Monthly.