RIP Voting Rights Act, 1965-2021

The last two major cases from the current Supreme Court term that were awaiting rulings were Brnovich v. DNC and Americans For Prosperity Foundation v. Bonta. Both are related to voting/elections, and if there is any sort of case where the current Court's ideological fault lines are likely to be on full display, it's voting/elections cases. To nobody's surprise, both decisions were decided 6-3 in favor of the petitioner.

We'll start with Brnovich v. DNC, which is the more consequential (and more radical) of the two decisions. To make sure everyone is on the same page, it's time for a (brief) history lesson. The Civil Rights Act of 1964, signed into law on July 2 of that year (in other words, Happy Anniversary!), outlawed many different forms of discriminatory behavior, among them unequal application of voter registration requirements. This was a direct assault on things like poll taxes and grandfather clauses, which were policies explicitly based on race, and used to keep people of color (primarily Black Southerners) from voting.

White conservatives, again particularly in the South, knew that they could be in big trouble if Black people were actually allowed their franchise. And so, with an eye toward the 1964 elections (which were just months away when the Civil Rights Act passed), Southern states adopted "literacy" tests. These were either fact-based ("Who is the current Secretary of the Treasury?") or task-based ("Circle the third word of the second prepositional phrase in this sentence."). If you would like to see examples, here is the 1965 Alabama test, which was fact-based, and here is the 1964 Louisiana test, which was task-based. These tests were not explicitly based on race; they were framed as reasonable means for making certain that voters were "informed" enough to cast ballots. In what was surely just a big coincidence, however, the tests were only administered to voters of color.

That led to the Voting Rights Act of 1965, which was designed to put an end to such BS. The Act contains two major provisions that try to serve that goal. The first says that before certain jurisdictions make changes to voting procedures, they have to get pre-clearance from the U.S. District Court for D.C. or the Department of Justice. The Act contains a formula for determining which jurisdictions are covered, but it basically boils down to "the South" (and some of the Midwest). And recognizing that a particularly clever state might just sneak something past the DoJ/the D.C. Court, the other major provision of the Act says that any voting rules that are shown to have discriminatory impact can be struck down, even if they do not appear to be discriminatory on their face.

Back in 2013, in Shelby County v. Holder, the Supreme Court found, by a vote of 5 (conservatives) to 4 (liberals) that the VRA's formula for identifying jurisdictions where the law is applicable was out of date, and struck the formula down. In theory, Congress can fix that by legislating a new formula, but there is a certain political party (hint: its symbol is an elephant) that has used the filibuster to stop that from happening. And so, for the last 8 years, one of the VRA's two great protections has been rendered moot, thus paving the way for voter ID laws and other forms of anti-democratic (and anti-Democratic) flim-flammery.

Yesterday, with Associate Justice Samuel Alito writing for the majority, SCOTUS gutted the VRA's other key clause. The specific finding was that two Arizona laws—one severely limiting ballot harvesting and the other allowing ballots dropped off at the wrong precinct to be thrown in the garbage—are legal. More broadly, the Court found that the test used by lower courts when they tossed the laws out—they ruled that both laws are more likely to affect minority rather than white voters, and so violate the VRA—is simply too restrictive.

Alito replaced this with a new standard that he conjured out of thin air, and that boils down to "If there is any available means for a person to get their vote counted, that's all that's necessary." So, for example, imagine you are a Native American who lives on a reservation, in poverty, without a car or access to public transit, and there is a polling place open from noon to 12:15 on Election Day, just a short, short 100 miles away. Well, then, your rights are apparently being respected and all is well, as far as the six conservatives on the Supreme Court are concerned. The reason we put "apparently" in there is that Alito's new standard is actually kind of fuzzy, which is very interesting from a man who has, several times this term, penned dissents excoriating his colleagues for not laying out clear standards in their rulings.

Naturally, liberals are howling mad. Activists across the country blasted the ruling, among them NAACP President Derrick Johnson, ACLU Legal Director David Cole, and Stacey Abrams. So too did Associate Justice Elena Kagan, writing about the VRA: "Never has a statute done more to advance the nation's highest ideals. And few laws are more vital in the current moment. Yet in the last decade, this court has treated no statute worse."

Thursday's other ruling, meanwhile, was also consequential, but not quite as much as the Brnovich ruling. Americans For Prosperity Foundation v. Bonta centered on a California rule that required charitable organizations to disclose the names of their donors. Americans For Prosperity Foundation is a front for the Koch family, and the Kochs prefer to remain in the shadows whenever possible, so they sued. And in its ruling, with Chief Justice John Roberts writing for the majority, SCOTUS said that it is ok for charitable organizations to keep their donors secret.

The obvious concern here is how this decision will interact with Citizens United. While most super PACs are not charities, and so still have to disclose their donors, it's not too hard to imagine folks (like the Kochs) exploiting the obvious loophole that now exists here. If the Kochs give $100 million to Americans for Prosperity, and then Americans for Prosperity gives $100 million to the super PAC Cruz for President 2024, then there would be no way to be certain that he was being funded by the Kochs. It's a pretty good guess, of course, but you wouldn't know for sure.

The politics of these two decisions are certainly very interesting. Recently, the Court issued several decisions where the conservative wing was not in lockstep, and where some of the findings were actually what Democrats and liberals wanted (most obviously, choosing not to strike down the ACA). Now, the six conservatives are all back on the same team. Perhaps they are just voting their consciences. Or, some or many of them may be sensitive to the Court's reputation, and so they "bought" themselves some brownie points last week such that they could come back with these decisions this week. It's also possible that they are playing the long game, and have decided that placing limits on voting rights will pay such long-term dividends that giving the liberals a few small victories right now is a small price to pay.

Of course, the big question now is what Congress will do, if anything, now that the Voting Rights Act is effectively dead. Right now, Sen. Joe Manchin (D-WV) is peddling his stripped-down version of the For the People Act, and finding few takers across the aisle. Meanwhile, Slate has a very interesting profile of Sen. Kyrsten Sinema (D-AZ) that includes two observations that are relevant here. The first is that one day, she might realize that the "lasting victories" she has achieved through bipartisanship in her career (and that she has bragged about) came when she was in the minority, and proved to be not all that lasting. So, an awakening may be coming. The second is that while she's toned down the Sanders-like liberalism that characterized her early days, Sinema's closest allies say she still believes very strongly in voting rights, and that if there's any issue where she'll budge in terms of the filibuster, that's the one. Congress is not likely to do anything more on the voting rights front before they adjourn for their summer break, but once things have had seven weeks to marinate in the summer heat, it could get interesting. (Z)

Pelosi Makes Her Picks for 1/6 Commission

On Thursday, Speaker Nancy Pelosi (D-CA) announced her picks for the Select Committee on the January 6th Insurrection. Chairing the committee, as expected, will be Rep. Bennie Thompson (D-MS), who has much relevant experience by virtue of his ongoing service as Chair of the House Homeland Security Committee. The Democrats who will join Thompson are Zoe Lofgren, Adam Schiff, and Pete Aguilar (all CA), Stephanie Murphy (FL), Jamie Raskin (MD) and Elaine Luria (VA). The Speaker clearly wanted a couple of moderates (Murphy and Luria), but was also interested in folks who have served as committee chairs, and who are battle-tested. That includes, in particular, several members who played key roles in one of the two Trump impeachments (Lofgren, Schiff, and Raskin).

As you might imagine, the name that drew all the headlines was Pelosi's Republican pick for the committee. As expected, the Speaker tapped Rep. Liz Cheney (R-WY). House Minority Leader Kevin McCarthy (R-CA) was furious with Cheney, and implied that she may lose her committee assignments while also suggesting that the Representative is more of a Democrat than a Republican. As a veteran politico, Cheney knows that McCarthy—who is already struggling with the perception that he takes his marching orders from Donald Trump—would have difficulty following through with his threat, which is why the Minority Leader only hinted rather than making an outright declaration.

And Cheney is only one of the headaches McCarthy has to deal with. Few members of his conference want to serve on the committee. If they come from red districts, they are at risk of being primaried from the right if they take the job seriously. And if they come from swing districts, they are at risk of being primaried from the right if they take the job seriously, or of being hit hard in the general election if they don't. And that's before we talk about the certainty that they will come under constant attack from Donald Trump, and that they could well be putting their lives in danger, given the fanatical and violent elements that exist within the base.

Consequently, the only members who are eager to volunteer, at least so far, are Reps. Marjorie Taylor Greene (R-GA) and Matt Gaetz (R-FL), who would both endeavor to turn the whole thing into a circus. But Greene is theoretically banned from serving on committees, at least right now, while Gaetz is headed that way (while also potentially being headed to prison). Does McCarthy really want to put his two most embarrassing members in such a high-profile position? And even if he does, Pelosi would presumably veto them anyhow.

Ultimately, it looks to us like the Democrats got lemons and made lemonade. They're going to get their committee, they're going to control it, and in a manner that likely puts Republican dysfunction and obeisance to Donald Trump on full display. Yes, there will be many who dismiss this as a partisan exercise, but most of those folks would have done so under any circumstances, and the presence of Cheney will serve to blunt that line of attack. It's almost like Nancy Pelosi has been at this for decades, and knows what she's doing. (Z)

A Win for Biden (Not That Anyone Will Notice)

Let us start by noting that we are hardly experts in tax law, much less international tax law. However, it was announced on Thursday that 130 countries, representing more than 90% of global economic activity, have now signed on to the Joe Biden-backed plan to require corporations to pay a minimum of 15% in taxes, regardless of where they are incorporated or where they do business. There are still many details to be ironed out, but the agreement on a broad framework sets the stage for progress to be made at the next meeting of the G20, scheduled to be held in Italy in October of this year. The new rules are expected to take effect in 2023.

Significantly, India, China, and Switzerland have all committed to the plan, which significantly limits opportunities for flouting the rules. That said, it is not clear to us how the participating nations will stop smaller countries from setting themselves up as non-participating tax havens. Barbados and Ireland already do that, and neither of them have committed to the deal. Undoubtedly, clever people are aware of this, and have some idea of how to deal with it, though this is probably one of those "details" that is still to be ironed out.

Getting this right could be complicated. A common thing giant corporations do is create a subsidiary in Barbados, Ireland, or some other low-tax country, then transfer all their patents and other intellectual property there. The subsidiary then gets real mean and charges the parent company in the U.S. an arm and a leg for use of the I.P. The poor parent company has to pay so much for using the I.P. that it doesn't turn a profit in the U.S., so it doesn't pay taxes there. Of course the subsidiary makes a fortune, but it is taxed at a very low rate. To combat this, the tax laws would have to be substantially changed. For example, a corporation would have to list its worldwide gross income, including all subsidiaries. Its tax would be based on that, with each country allocated a share based on the percentage of gross sales in that country. So if, say, 80% of Amazon's revenue came from the U.S. it would have to pay tax on 80% of its revenue, no matter where the I.P. was located. Figuring it all out won't be simple or easy.

Also unclear is the extent to which this will benefit Biden politically. On one hand, this accomplishment is somewhat far removed from the daily lives of Americans, especially since forcing Amazon or Microsoft to pay does not necessarily mean they'll pay in the U.S. So, this is not necessarily a juicy new source of funding for infrastructure and other programs. On the other hand, the folks who care most about corporations paying their fair share of taxes (or, at least, paying some taxes) are progressives, and they tend to be more dialed in than the average voter. So, this may curry some favor for Biden among them. We just do not know. (Z)

Weisselberg Surrenders, TrumpWorld Spins

Things moved somewhat rapidly on the Trump Organization criminal investigation front on Thursday. CFO Allen Weisselberg was indeed indicted, and has already surrendered to authorities. He's been charged with 15 different felony counts, while an entity called the Trump Payroll Corporation has been charged with 10. The alleged crimes, which the office of Manhattan DA Cyrus Vance Jr. says span 15 years, include conspiracy, criminal tax fraud, and falsifying business records. In addition, Weisselberg was also charged with grand larceny and offering a false instrument for filing.

The basic scheme, at least in Weisselberg's case, went like this: He negotiated annual compensation with the Trump Organization (around $1 million a year). Then, some of that was offset with various perks—use of a condo, a car, etc.—that were not reported to the IRS. Further, sometimes checks were written and cashed by an employee, with the money handed over to Weisselberg. This was also unreported, of course.

Undoubtedly, some very smart lawyers are going to be hired, and are going to be paid (or, at least, promised) very good money to come up with an explanation for why this was all copacetic. However, the people who run the Trump Organization are often—and forgive the use of a clinical term here—kind of dumb. Because the parsimonious Trump did not want to pay Weisselberg a penny more than the agreed amount, there was a spreadsheet—which the DA has—that meticulously documented the "reported to the IRS" and the "not reported to the IRS" payments. Apparently, Trump & Co. were unclear on the meaning of "off the books." It will not be easy for the defendants to talk their way out of that one.

In short, Weisselberg is in it up to his shoulders. He participated in what certainly appears to be an extensive, long-running, well-documented effort to defraud the federal government, and the authorities would seem to have the goods on him. The crimes he's charged with carry a penalty of up to 80 years in prison. He's not going to get all of that, of course, but at 73, even a 15-year sentence (1 year for each count) would effectively be a life sentence. And that is before we consider that his kids might be exposed as well.

So, the CFO has to be thinking plea bargain. But he's surely not getting one unless he agrees to flip on his bosses, namely the Trump family. Quite a few commentators on Thursday pointed out that while Michael Cohen turned state's evidence, many other Trump accomplices who were implicated in crimes—Michael Flynn, Roger Stone, Paul Manafort—did not. That may be true, but it's worth pointing out that Cohen was the only one Trump could not pardon, and also that Flynn and Manafort were both ready to turn on Trump until they learned they would receive a "Get Out of Jail Free" card. So, the smart money says that we soon learn what the siren song of a caged Weisselberg sounds like.

The Trumps, for their part, are furiously trying to spin this away. Donald Trump Sr. apparently told his advisers that he is "thrilled" about the indictment, because he thinks it will rebound on "Sleepy Joe" in 2024. He is presumably counting on his base to be unaware that the federal government has no power over state and municipal officers. Meanwhile, Donald Trump Jr. appeared on Fox to slam the whole affair as a witch hunt, also describing it as a "disgrace" and "banana republic stuff."

Are the Trumps actually in trouble here, though? There were certainly plenty of pieces written Thursday that point out that the Donald has wriggled out of trouble many times before, or that quote (right-leaning) lawyers who are pooh-poohing the whole thing. However, based on what is already known (though keeping in mind we're not lawyers), we think the evidence indicates that the Trumps have a big problem here. Here are our reasons for thinking so:

• The reaction of the Donalds Trump, Sr. and Jr., is typical of them when they are feeling frightened or threatened.
  
  
• Just the stuff that is now known about Weisselberg is pretty damning for the elder Trump. At very least, he signed some of the checks that were cashed and used to subvert the IRS. More broadly, it is implausible he did not know about, and approve, the whole scheme. Further, because of mafiosi who took steps to insulate themselves from the actual committing of crimes in order to give themselves plausible deniability, the statutes are written in such a way that "he should have known" is enough to make someone like the Donald guilty of a crime.
  
  
• More broadly, it is implausible that a business would cheat on one employee's compensation, but would otherwise fly on the straight and narrow in all other circumstances.
  
  
• It is similarly implausible that the Manhattan DA's office, and the New York AG's office, would spend thousands of hours and millions of dollars to pop one employee on a relatively small list of offenses. Clearly, the DA has far more cards in his hand that he's not playing right now, and is merely going after one of the smaller fish in his quest for the big fish.
  
  
• Andrew Weissman, who was a member of Robert Mueller's team, and so surely knows many things we do not know, sent out a tweet on Thursday in which he predicted that the Weisselberg charges are just "the tip of the iceberg." Weissman also pointed out that the DA has requested a protective order, so that the discovery process is kept hidden while the investigation is ongoing.

Add it all up, and it is simply impossible to accept that this is the end of it, and that Vance's investigation has so much sound and so little fury. No, this is just the opening chapter. (Z)

At Least It's Not Just a Blog...

As long as we're speaking of TrumpWorld, the latest attempt to launch a Trumpy alternative to Twitter/Facebook has gone live. It's called Gettr, it's being run by former Trump adviser Jason Miller, and it's a brazen ripoff of Twitter. Indeed, not only does the site allow and encourage people to directly import tweets, but it also appears to have ported over some users' followers lists, to give the impression that the new platform has far more users than it actually does.

The app has already been approved for, and added to, the Apple Store, where it is described as "a non-bias social network for people all over the world." One would think that if your marketing pitch is only 10 words, and it's going to be the single most important element of getting people to download your software, you would make sure to get your grammar correct. But maybe we're bias against Gettr. One also wonders if Miller & Co. are aware of how easily that name could suggest that it's a companion app to Grindr, a "dating" app for LGBTQ+ people that is really more of a hookup app for LGBTQ+ people. If you had told us, before yesterday, that Gettr was a spinoff of Grindr specifically attuned to the needs of lesbian users, we certainly would have bought that.

The big question, of course, is whether or not Trump will embrace and use the app. Thus far, he is not saying, and our guess is that he probably won't. He does not want the embarrassment of low engagement numbers, like what happened with his failed blog. He also wants a cut of the proceeds from any new social media platform he joins, and Gettr isn't going to Givem that. Further, he's already addicted to the thrill of reaching tens of millions of people with a press of a button on his phone, and then seeing that set off the media and the libs. Gab, Parler, Gettr and other right-wing social media platforms tend to attract relatively small numbers of fanatics, who are largely just preaching to the choir. There's fairly little sh** stirring, lib owning, media trolling, or anything like that. And so, even if the former president does join Gettr, he's likely to get bored, even more quickly than he got bored with the blog. (Z)

It's a Date!

It was a little over a week ago that the signatures needed to trigger a recall election in California were certified, and something that everyone knew was coming actually became official. Now, a date for the recall election has been announced: It's Tuesday, Sept. 14.

By the standards of California, where the only thing worse than the freeways is the red tape, this process has moved at lightning speed. The various officials involved in the process are all Democrats, and would prefer not to see Gov. Gavin Newsom (D) tossed out of office. And so, he will only have to hang on for 75 more days. That's a long time, of course, particularly in the middle of wildfire season, and with the COVID-19 Delta variant rearing its ugly head. However, polls consistently show a majority of Californians being opposed to the recall, and Newsom is pretty effectively framing the whole thing as the work of TrumpWorld. Meanwhile, Caitlyn Jenner is tacking far right, John Cox is still running around with a bear, and nobody knows who Kevin Faulconer is. So, none of the leading Republicans are getting people (besides hardcore Republican people) excited about the possibility of an upgrade. (Z)

New York City Releases Update on Mayoral Race

This information was actually available two nights ago, so we could have run with it yesterday. But given what happened, well, we thought it best to wait. Now that we're more than 24 hours in, with nobody saying "boo," we're going to move forward and hope for the best.

Anyhow, after Tuesday's initial misstep, wherein preliminary ranked-choice results for the New York City elections were released with over 100,000 "test run" ballots inadvertently included in the totals, election officials released new preliminary results that include only actual ballots—the ones cast in person on Election Day, and the absentee ballots that were sent in and received early. If the ballots that have been tallied already were to be final, Eric Adams would be the Democratic nominee for mayor, and de facto the next leader of New York City. Here are the last three rounds of counting from the preliminary results:

	Round 7	Round 8	Round 9
Eric Adams	283,142 (35.5%)	314,194 (40.9%)	358,521 (51.1%)
Kathryn Garcia	190,106 (23.8%)	226,922 (29.6%)	343,766 (48.9%)
Maya Wiley	213,857 (26.8%)	226,575 (29.5%)	eliminated
Andrew Yang	111,239 (13.9%)	eliminated	eliminated
Exhausted Ballots	21,270	51,923	117,327

As you can see, Adams is still on top. But his "win" is narrow, and the trendlines aren't great for him. Yang voters split roughly 40/40/20 for Adams/Garcia/Wiley, and so nothing much changes once he's eliminated. However, Wiley voters broke almost entirely for Garcia or else for "neither of these." If the 125,000 remaining absentee ballots skew a bit more lefty than the already-counted ballots, it could be a nail-biter. At the moment, both Adams and Garcia are claiming that they have numbers suggesting the outstanding ballots favor them.

Wiley also has a path forward, since she is currently being eliminated on the basis of less than 400 votes. If she gains a bit on Garcia, then Wiley will be the candidate who lasts until the final round. What will happen then, if she does indeed pull into second place, is anyone's guess. On one hand, it is likely that some Garcia voters find Adams tolerable, and so Adams is more likely to pick up votes from Garcia than he's picking up from Wiley. On the other hand, many Wiley voters were clearly willing to exhaust their ballots rather than "settle" on Adams or Garcia. At the moment, there are more than 65,000 Wiley voters whose ballots are not being counted. In a race that is currently being swung by less than 15,000 votes, that is a lot, and if Wiley makes it to the final round, those 65,000 come back into play. It's true that some Garcia ballots will become exhausted if Garcia is eliminated, but it's likely to be far fewer than 65,000 of them.

The next tally is due to be released on Tuesday of next week. Since the Board of Elections was able to (re-)count more than 800,000 ballots in roughly 24 hours, they should be able to work their way through all of the remaining ballots by then, despite the holiday weekend. At that point, all that will remain will be the absentee ballots in need of "curing." If that number is small enough, it's plausible that there could be a winner as of Tuesday's announcement.

That won't necessarily settle the matter, however. Given the screw-up by the Board, Adams and Garcia have already filed preemptive lawsuits, and Wiley is expected to do the same. So, the two runners-up, once their names are known, are both likely to end up in court, and so it could be a while before the "official" result is actually official. (Z)

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There's been a last-minute development in the album contest. It turns out that the first person who got all of the answers right was doping. Of course, when you're trying to find the names of albums by The Beatles and Pink Floyd, that's an appropriate thing to do, so that's not the problem. No, the problem is that we learned, at a relatively late hour, that "In the Summertime" by Mungo Jerry actually is an album. It's not listed on the official discography on the band's website; they must have been doping when they put that together. Anyhow, we now have to go through a couple hundred entries and make sure everyone who swept the list actually gets credit. So, look for that on Tuesday. Thanks for your patience, and note that—teaser alert!—very soon, there are some other posts of this sort that have been on the back burner and that will be unleashed.

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