Thursday, July 01, 2021


In response to otoday's Supreme Court rulings, Rick Hasen writes:
Thanks to Brnovich [v. Democratic National Committee], a state can now assert an interest in preventing fraud to justify a law without proving that fraud is actually a serious risk, but at the same time, minority voters have a high burden: They must show that the state has imposed more than the “usual burdens of voting.” ...

It is hard to see what laws would be so burdensome that they would flunk the majority’s lax test. A ban on Sunday voting despite African American and other religious voters doing “souls to the polls” drives after church? New strict identification requirements for those voting by mail? More frequent voter purges? All would probably be OK under the court’s new test as long as there are still some opportunities for minority citizens to vote — somewhere, somehow.

... [The ruling in] the Americans for Prosperity case ... threatens the constitutionality of campaign contribution laws, which are judged under the “exacting scrutiny” standard.... Lower courts can now find that such laws are not narrowly tailored to prevent corruption or its appearance or do not provide voters with valuable information — two interests the court recognized in the past to justify campaign laws. A requirement to disclose a $200 contribution? A $500 campaign contribution limit? Plaintiffs in future cases are likely to argue that a law targeting small contributions for disclosure or imposing low contribution limits are not “narrowly tailored” enough to deter corruption or give voters valuable information, even if Congress or a state or municipality found such laws necessary.
I keep telling you that there are two kinds of Republicans: those who want to steal elections by any means necessary, including by means of embarrassingly implausible stunts like the January 6 riot and the Arizona audit, and those who want to steal election the aubtle way, by creating a legal framework that favors the GOP at every turn while retaining the appearance of fairness and impartiality, at least to those who aren't paying close attention. Donald Trump and MAGA Nation belong in the former category, while many Republican officeholders, including the Republicans who refused to "find" votes for Trump after Election Day 2020 or otherwise reject Joe Biden's obvious victory, belong in the latter category.

The Republicans on the Supreme Court belong in that category too. They want the GOP to win every future election just as much as Trump and his crew do, but they want the GOP victories to have the patina of legitimacy. Hence today's decisions and the ones that came before them.

And, also, the ones will undoubtedly come in the future.

Riots are so gauche. So are byzantine theories about fake bamboo-paper ballots and Italian satellites that transcontinentally change votes. Today's Supreme Court rulings were a message to Trump Nation: Step aside and let the professionals do the election thieving.

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