Divided
One voter’s reflection: for some, a superfluous ballot box.
In 1954, upon the 9–0 decision in the Supreme Court case in Brown v. Board of Education the “separate but equal” doctrine was ruled unconstitutional and in violation of the equal protection clause of the fourteenth amendment. So ended five generations — close to 100 years — of “Jim Crow” neglect and racial discrimination in education, the workplace, public spaces and services and local, state and federal elections.
In 2001, upon the 5–4 decision in the Supreme Court case in Gore v. Bush, the right to enforce a recount of a contested state Presidential election outcome was intervened by a branch of the federal government — the same institution and court that challenged the ‘separate but equal’ clause. Less reported was the dismissal of a Section 2 (Voting Rights Act) challenge by black voters during the Florida election. (1)
In June, 2023 upon the 6–3 decision in the Supreme Court case of Moore v. Harper the purported independent state legislature “doctrine” {ISL) was ruled in violation of the Fourteenth and Fifteenth Amendments of the Constitution:
…it would have empowered partisan state legislatures to pass — without restrictions — laws subverting elections or drawing gerrymandered congressional districts to lock in perpetual political power, against the will of voters…even though the Supreme Court jettisoned a sweeping version of the ISL theory to the dustbin of history, the post-Moore v. Harper path is not without some degree of risk. For reasons addressed below, the Supreme Court majority creates the possibility that partisan state legislatures will seek relief in federal courts that are willing to reverse pro-voter state court decisions governing federal elections. (2)
In November 2023, a Trump appointed judge ruled for the majority of the 8th District Court of Appeals that in the seven states of the 8th circuit, only the U.S. Attorney General could sue on behalf of citizens whose voter’s rights had been discriminated against, thereby denying the right of petition accorded to citizens and civil rights advocates under the Fifteenth Amendment and Section 2 of the Voting Rights Act (3).
Reflecting on this legal trajectory, one is reminded of two realities threatening America’s way of conducting its affairs:
First, America, though on paper having recognized the fallacy of ‘separate but equal,’ has not unequivocally denounced this fallacy, and rooted it out of her affairs. Hence, its institutions and law-abiding citizens are victimized by its lingering presence.
Second, America in following the defense of freedom, has yet to challenge that the Constitution, when not enforced, selectively denies its citizens equal access to those same freedoms — of speech, assembly, worship, the press, and petition — redolent of the defenses America presumes are lawful.
The loudest and wealthiest campaigns, the most extreme opinions, the most repressive voices control the public platform, the rulemaking, normative apparatus in the name of freedom.
A former President, charged with seditious conspiracy to interfere in the Presidential transition will be on the 2024 ballot in fifty states, the District of Columbia, the territories of Puerto Rico and the Pacific Islands, in the name of freedom… and in direct violation of section 3 of the fourteenth amendment. (4)
America has conflated violating the law with enforcing the Constitution. That both are confused daily by the media and its actors demonstrates that America has yet to choose its destiny and defend the bulwark of democracy.
In 2020 in the Electoral College, Biden won 25 states, the District of Columbia and a portion of Nebraska’s electoral votes. Trump won 25 states and a portion of Maine’s electoral votes. This outcome masks that Biden won by over 7 million cast votes, the largest number (81 million) of votes cast in a Presidential election. This outcome also masks that the popular vote has become unhinged from the Electoral College tally. (5)
Nevertheless, a majority of voters in the Republican party has rejected the outcome of the 2020 election. Whether Trump wins or not in 2024 obscures that historically for this “majority,” the “line” has already been crossed:
America is deciding that the Constitution is unenforceable and that holding onto power does not require the ballot box.
November 25
Notes
1 Ari Berman, “How the 2000 Election in Florida Led to a New Wave of Voter Disenfranchisement,” The Nation, July 28, 2015
2 Michael Sozan, “Supreme Court’s Decision in Moore v. Harper Is a Win for Democracy, but Some Questions Remain Unanswered,” Center for American Progress, americanprogress.org, July 24, 2023
3 Madeleine Greenburg, “Eighth Circuit Rules Private Plaintiffs Cannot Sue Under Section 2 of Voting Rights Act,” Democracy Docket, November 20, 2023
4 Comment: Consider the Trump “de-ballot” argument by former Appeals Court Judge J. Michael Luttig, that whether Trump committed insurrection against the government of the United States on January 6 is not the qualifying issue as Trump’s lawyers would argue, but rather whether Trump attempted to block the election and remain President, thereby committing insurrection against the Constitution of the United States.
5- Drew Desilver, “Biden’s Victory another example of how Electoral College wins are bigger than popular vote ones,” Pew Research Center, pewresearch.org, December 11, 2020
ReplyForward
