Moore v. Harper: The end of free and fair elections (and democracy) is on the horizon

Background

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators. -- US Constitution, Article 1, Section 4

Explanation & context: Sec. 4 specifies that state legislatures control the times, places and manner of federal elections, but Congress can pass law to overturn state law. Sec. 4 does not mention (i) what jurisdiction state courts have, if any, or (ii) how conflicts between a state election law and a state constitution are to be handled. The radical right wants to neuter state courts so radicals are free to pass laws that neuter the results of federal elections, even if it conflicts with the state constitution. Key points:

• The concept of free and fair elections is not in the US Constitution but it can be found in state constitutions.
• Republicans control the legislatures of 30 states.
• If federal elections of 30 Republican-controlled state legislatures are rigged for partisan advantage, Democrats will very likely not be able to control the House of Representatives or the White House. Senate elections cannot be rigged because they are statewide elections and there are no voting districts to rig.  
• Republicans could act to eliminate state constitution provisions that protect free and fair elections, but it is easier and far better political optics to not be seen as opposing free and fair elections. Therefore, get the Supreme Court to give state legislatures the power to get state courts out of the way as the last line of defense of free and fair elections. Republicans will simply deflect blame to the Constitution, Democrats and/or the Supreme Court for whatever public blowback there might be from rendering of federal elections a purely partisan sham.
• Republicans already have the power to freely rig elections for state legislatures for partisan advantage, so their lock on control of state legislatures seems to be baked in for decades to come. That means that Democrats will very likely be locked out of the House and White House for decades to come, unless enough red states turn blue and the blue states play the same hardball rigged elections game that radical Republicans are playing.
• Some blue states have already unilaterally surrendered the game because they have state constitutions or laws that limit election rigging in defense of free and fair elections. For example, California has 9 contested House voting districts because a commission draws districts to protect voters. If that law went away, the number of competitive House districts would drop from 9 to maybe 3 or 4, maybe less.
• As long as Congress remains gridlocked, Republicans will block all proposed federal laws designed to defend free and fair elections. Senate Democrats cannot get past the filibuster, so they are 100% neutered.
• To hint at the depth of Republican cynicism and fascist belief that elections are just crap that need to be neutered, consider HR1. HR 1 was the first bill the House passed after Democrats took control of the House in Jan. 2021. The proposed bill expands voting rights, changes campaign finance laws to reduce the influence of money in politics, bans partisan gerrymandering, and creates new ethics rules for federal officeholders. Nearly all Republicans in congress bitterly oppose HR 1. It is dead in the Senate because the Democrats cannot override a Republican filibuster. 
• Many or most regular conservatives (assuming any are left) and nearly all or all radical right Republicans see HR 1 as vicious, partisan hardball tactics. If protecting free and fair elections is vicious, partisan hardball tactics, then the fascists are right. But if so, then what does one call what the fascists are trying to accomplish in Moore v. Harper (discussed below), eliminating free and fair elections? Softball politics? 

Moore v. Harper, the end of free and fair elections 

and the rise of American fascism 

A couple of weeks ago, the Supreme Court accepted a case called Moore v. Harper. Radical right Republicans intend to use that case to make a legal argument called the “independent state legislature” theory the law of the land. At the same time, the radical right wants to obliterate the concept of free and fair elections. This is something that Republican fascists have been dreaming about for decades. The concept of free and fair elections stands in the way of the radical right’s insatiable lust for much more power and wealth for elites. 

In essence, the radicals want the Supreme Court to declare that state courts have very little jurisdiction to rule on state laws that potentially limit a legislature’s ability to rig elections for partisan advantage. At present, state courts can rule that a legislature’s gerrymander or overturn the results of a popular vote is unconstitutional under the state’s constitution. If the Supreme Court decides that the independent state legislature theory is the correct interpretation of Art. 1, Sec. 4 of the Constitution, that would hand power to fully obliterate the free and fair concept and replace it with raw partisan power in deciding elections. The popular vote becomes irrelevant.

The Moore case comes out of North Carolina where the state courts rejected a radical Republican gerrymander of federal voting districts for the House of Representatives.[1] One legal analysis comments:

In rejecting petitioners’ Elections Clause challenge, the North Carolina Supreme Court cited Rucho v. Common Cause, 588 U.S. ­­­___ (2019), for the proposition that “state constitutions can provide standards and guidance for state courts to apply” in addressing partisan gerrymandering, and claimed “a long line of decisions” by the U.S. Supreme Court confirms the more general proposition that “state courts may review state laws governing federal elections to determine whether they comply with the state constitution.” The General Assembly responded by preparing a revised congressional map. The trial court rejected that map, however, and adopted one prepared by three Special Masters it had appointed to assist in the remedial process. The North Carolina Supreme Court and U.S. Supreme Court denied petitioners’ motion for a stay, though four Justices wrote to note the importance of the Elections Clause issue.

Petitioners [the radical right Republicans] argue that “[t]o secure self-government, [the Elections Clause] vests the power to regulate federal senate and congressional elections in each State’s legislature, subject only to supervision by Congress. The state supreme court’s usurpation of that authority—pursuant to vague and indeterminate state constitutional provisions securing free speech, equal protection, and free and fair elections—simply cannot be squared with the lines drawn by the Elections Clause.” Petitioners insist that “’the Legislature’ means now what it meant [at the founding], ‘the representative body which ma[kes] the laws of the people.’” “The Constitution thus grants the state ‘Legislature’ primacy in setting the rules for federal elections, subject to check only by Congress.”

There is is, right out in the open: Four radical right Supreme Court justices want to blow off free speech, equal protection and free and fair elections. Equal protection is targeted because it can be used as a basis to argue that a rigged election violates the rights of people whose votes have been trashed by Republican tyrants. 

The importance of this case ranks right up there with Dobbs v. Jackson, the Supreme Court decision that obliterated Roe v. Wade. Arguably it is significantly more important. Moore is a direct fascist attack on one of the last lines of defense of democracy. The radical Republican goal here is crystal clear and undeniable: They want to neuter the power of people’s votes. 

Footnote: 

1. Politico comments on the Moore case:

But the Republican legislators argued in an appeal to the U.S. Supreme Court that the state court had extremely limited authority to police the legislature on federal election matters — a theory known as the “independent state legislature” theory.

The theory holds that state legislatures have near-uncheckable authority to set procedures for federal elections — and state courts have either a limited or even no ability to rule on those laws. The theory is based on a pair of clauses in the constitution, the Electors Clause and the Elections Clause, that mention state legislatures but do not explicitly mention the judiciary.

Republicans have increasingly promoted the theory as a way around state courts that have recently struck down redistricting maps as partisan gerrymanders.

The next front in the radical right war on democracy: Turning political groups into religions

A core goal of the Christian nationalist political movement is to aggressively protect and expand tax breaks for its growing scope of allegedly religious activities. Rapacious Christian gold diggers are claiming religious freedom for more and more activities. Those activities are qualifying for IRS tax status and direct payment from governments or indirect tax subsidies. The Supreme Court significantly expanded the reach of religion into state revenue streams in its recent decision requiring states to support religious schools (Supreme Court Rejects Maine’s Ban on Aid to Religious Schools -- The decision was the latest in a series of rulings forbidding the exclusion of religious institutions from government programs).

Apparently, radical right Republican political groups are waking up to the idea of going from non-profit groups with some tax breaks to religious organizations with much better tax breaks. Key reasons to convert from a "charity" to a "religion" are (1) more tax breaks, and more importantly (2) protection from mandatory divulging of financial information. Unlike charities, religious organizations do not have to make their finances public. Fascist Republicans want to do their dirty work in private.

ProPublica writes:

The Family Research Council’s multimillion-dollar headquarters sit on G Street in Washington, D.C., just steps from the U.S. Capitol and the White House, a spot ideally situated for its work as a right-wing policy think tank and political pressure group.

From its perch at the heart of the nation’s capital, the FRC has pushed for legislation banning gender-affirming surgery; filed amicus briefs supporting the overturning of Roe v. Wade; and advocated for religious exemptions to civil rights laws. Its longtime head, a former state lawmaker and ordained minister named Tony Perkins, claims credit for pushing the Republican platform rightward over the past two decades.

What is the FRC? Its website sums up the answer to this question in 63 words: “A nonprofit research and educational organization dedicated to articulating and advancing a family-centered philosophy of public life. In addition to providing policy research and analysis for the legislative, executive, and judicial branches of the federal government, FRC seeks to inform the news media, the academic community, business leaders, and the general public about family issues that affect the nation from a biblical worldview.”

In the eyes of the Internal Revenue Service, though, it is also a church, with Perkins as its religious leader.

According to documents obtained via the Freedom of Information Act and given to ProPublica, the FRC filed an application to change its status to an “association of churches,” a designation commonly used by groups with member churches like the Southern Baptist Convention, in March 2020. The agency approved the change a few months later.

The FRC is one of a growing list of activist groups to seek church status, a designation that comes with the ability for an organization to shield itself from financial scrutiny. Once the IRS blessed it as an association of churches, the FRC was no longer required to file a public tax return, known as a Form 990, revealing key staffer salaries, the names of board members and related organizations, large payments to independent contractors and grants the organization has made. Unlike with other charities, IRS investigators can’t initiate an audit on a church unless a high-level Treasury Department official has approved the investigation.

[Not surprisingly,] the FRC declined to make officials available for an interview or answer any questions for this story. Its former parent organization, Focus on the Family, changed its designation to become a church in 2016. In a statement, the organization said it made the switch largely out of concern for donor privacy, noting that many groups like it have made the same change. Many of them claim they operated in practice as churches or associations of churches all along.

Warren Cole Smith, president of the Christian transparency watchdog MinistryWatch, said he believes groups like these are seeking church status with the IRS for the protections it confers.

“I don’t believe that a lot of the organizations that have filed for the church exemption are in fact churches,” he said. “And I don’t think that they think that they are in fact churches.”

Unlike the Southern Baptist Convention, whose website hosts a directory of more than 50,000 affiliated churches, the FRC’s site does not list these partners or mention the word “church” anywhere on its home page. The FRC’s application to become an association of churches didn’t include this list of partner churches, nor did it provide the names to ProPublica.

The organization’s claim to be an association of churches is disingenuous, said Frederick Clarkson, who researches the Christian right at nonpartisan social justice think tank Political Research Associates.

“The FRC can say whatever bullshit things they want to,” he said. “The IRS should recognize it as a bad argument.”

Three experts told ProPublica that the IRS is failing to use its full powers to determine who gets the special privileges afforded to churches. And when a group like the FRC appears to push the limits of what charities are allowed to do — particularly relating to their partisan political activity — the IRS doesn’t often step in to crack down. [Not surprisingly,] the IRS did not answer a list of detailed questions for this story or make anyone available for an interview.

The American Family Association, a Tupelo, Mississippi-based group that runs the influential American Family Radio network, as well as a film studio and magazine, changed its designation to a church in early 2022, according to IRS data. The association sends out frequent “action alerts” to subscribers asking them to sign petitions opposing government appointees or boycott media and brands that it has identified as supporting LGBTQ rights or abortion access. [Not surprisingly], the organization declined to respond to a request for comment.

It is really important to understand that the fascist Republican assault on democracy, secularism and civil liberties is well-funded, aggressive, multi-pronged and increasingly successful. Both Christian nationalists and laissez-faire capitalists are exploiting every angle of attack they can exploit. In essence, in addition to controlling society, they want to gain full control of the federal government, all sources of tax revenues and more tax subsidies. 

In other words, Republican fascists are hell-bent on using our tax dollars and subsidies against us to take away our democracy and civil liberties. After decades of focused effort, the radical right is starting to succeed on a massive scale. We are in urgent, grave danger.

Convergence of Republican Party and foreign authoritarianism in democracies under attack

ACUF is the American Conservative Union Foundation

American anti-democratic authoritarians are merging 

with those in Hungary

Acknowledgement: The following is copied and lightly edited from a comment PD posted in another discussion thread yesterday. PD synthesizes complicated things extremely well into coherence. Better than me, that's for sure. I appreciate his time and effort here a great deal. This is quite timely and informative.

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Initial comment: Hungary and Poland are not the USA. Again, I'd compare us to England, Australia, Canada, and New Zealand. Maligned as the Anglo-American world, although I very much admire it.

PD's response: When I mentioned Orban's Hungary as an example of bloodless de-democratization, you said,

Hungary and Poland are not the USA.

Orban is now going to speak alongside Trump and Steve Bannon at CPAC in Texas next month. As the articles and video linked below report, the GOP and the Hungarian autocrat are becoming much closer. As you know, I don't think interwar Germany is a good point of comparison with the US. But I do think the democratic backslide in Hungary is much more relevant than that.

Apparently the GOP elites agree. There is now a Hungarian version of the US-based Conservative Political Action Committee (CPAC) which opened in May, with Orban as the main speaker, of course. CPAC US and CPAC-Hungary have signed a "Memorandum of Understanding"-- note the American and Hungarian flags waving harmoniously behind Orban as he states that,

We need to take back the institutions in Washington and Brussels. We need to work with friends and allies. We need to coordinate the movement of our troops, because we have a big challenge ahead of us. 2024 will be decisive.

See also this ABC News article: Hungarian nationalist PM Orban to deliver speech at CPAC, which includes these comments: "BUDAPEST, Hungary -- Hungary's nationalist prime minister will speak at a conference of prominent U.S. conservatives this summer, the latest sign of tightening relations between Hungarian and American conservatives."

While speaking on the theme of "God, homeland and family" (as shown in the video), Orban speaks of the need to have government control the media, something he has managed to do in Hungary, to a great extent. Speaking of Washington and Budapest as the "two fronts of the War for Western Civilization," he said:

Dear friends, let's have our own media. The madness of the progressive left can only be demonstrated if there is media to help us do so.

As I also told you earlier, this is why I don't talk about "wokeness" anymore. It is being used as the main bait for radicalizing disenchanted citizens who used to be mainstream, but got upset about the culture wars. Of course, once you take the bait there comes the switch: you let Dear Leader ( Orban? Trump? DeSantis? Pres. Tucker?) "run the show"-- literally and figuratively. And what a show it is, with 24/7 fear-mongering about non-white immigrants, LGBTQ causes and the like. We learned from 1/6 Select Committee testimony yesterday that Twitter was cowed by Trump for months. "If that account had belonged to anybody else it would have been deleted long before 1/6" said a lead moderator for Twitter in testimony. Fox, OAN, and others already thrive as, essentially, GOP propaganda outlets with almost no regard for evidence based reporting. Do we even want to imagine emulating the Hungarian model of state controlled media?? (see, e.g., New Report: Hungary dismantles media freedom and pluralism)

This is not good news, IM. The GOP and far Right parties in Europe are becoming more and more cooperative. Just a couple of months back, Steve Bannon was in France sharing the stage with then-presidential candidate, Marine Le Pen (leader of the National Front or National Rally). Thankfully, she lost. But that's not my point. What the GOP is becoming/has become here has its analogues in much of Europe where reactionary, and often bigoted parties have been growing alarmingly over the past 5 or 6 years (esp. since the refugee crisis and Brexit). Seeing a European iteration of CPAC in this context is alarming. Jonathon Krohn, one of the few journalists allowed to cover the opening of CPAC-Hungary writes:

BUDAPEST, Hungary — European and American conservatives descended on this city Thursday morning to bemoan the supposed ‘suicide’ of Western civilization. The impending cultural death was blamed on a variety of causes, including immigrants who were “replacing” native-born workers; communists and “progressivists” pushing “gender madness”; and liberal democracy, which was creating a new “civic religion” out of the rights of man. Speakers, ranging from the CEO of Parler to the Prime Minister of Hungary, railed against the ‘woke’ media and the “unified troops of the international left” during a series of programming blocs with titles like “Western Civilization Under Attack,” “In God We Trust,” and “The Culture Wars in the Media.” It was the opening day of CPAC Hungary, the first European edition of the American Conservative Union’s flagship confab, and dark clouds were forming over Hungary....

What were those ideas and how could [Europe and America] be salvaged?

The answers proposed by an international slate of nationalist speakers betrayed a growing affinity between American conservatism and illiberal authoritarians in Europe. Immigration, gender identity, abortion rights, foreign culture, and the media all needed to be heavily controlled by stronghanded politicos in order save the native (white) population, the Church, and ‘Western civilization.’

“Hungary is the laboratory where we have managed to come up with the antidote for progressive dominance,” said right-wing Hungarian Prime Minster Viktor Orban. “The nation comes first: Hungary first, America first.”

The full article, CPAC Europe is a Safe Space for Authoritarians -- and the Republicans Who Love Them, is here.

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I've said it before here and say it again: The intolerant, anti-democratic authoritarianism that the Republican Party, T**** and their dark free speech Leviathan (Faux News, etc.) have fomented and unleashed has taken on a life of its own. Things are spinning out of control and the odds of partisan social violence continues to increase with time.

This is what fascist Republican 

talking points actually mean

The 1/6 Committee hearing today: American fascism is a matter of faith

Fascist Republican rhetoric and politics in the weeks before the 1/6 are clear and undeniable. The fascists based on faith their belief that the 2020 election was stolen. Contrary facts and sound reason were denied or deemed non-existent or irrelevant. 

That's like the Bill Nye the Science Guy faux debate with Tom Ham, the young Earth "theory" crackpot discussed here yesterday. Faith says the Earth in young, but facts and reason contradict it.

One cannot debate faith, but there is no choice but to try. People with faith believe regardless of supporting, ambiguous or contrary facts, truths and/or sound reasoning. That's more or less the definition of faith. 

Liars are a different beast. They are at least impervious to contrary facts, truths and/or sound reasoning as faith-based believers.

The testimony today makes it undeniable that the fascist Republican assertion that the 2020 election was stolen is either a lie or a matter of faith. Either way, it is not a matter of fact, truth or reason. That's how fascist, pro-T**** Republican faith has to work. There is no other way. 

Waddabout Ciopplone and the Republicans who argued against the fascist tyrant?

What about them? If the GOP had been in control of the House after the 2020 elections, there would have been no 1/6 Committee. Their knowledge would have been buried. What would they have done? Mostly nothing. It is probably only the cognitive dissonance the 1/6 Committee created that forced them to reluctantly testify. What else could they have done on their own, write a book of little or no significance, or just keep quiet and watch democracy and truth stand, wobble or fall?

The Republicans who fell on their own swords and resigned in protest are real patriots. 

Of course a good counterpoint is that with the Republicans who stayed and opposed T****'s fascism, we and democracy were better off with them staying there and opposing the tyrant than leaving quietly or in a blast of public criticism. Maybe non-fascist Republicans staying and opposing from with in is the best one can hope for with current American democracy. If so, democracy hangs on damn weak threads. Those folks are being RINO hunted. They will probably be extinct fairly soon in most positions of significant state or federal power. Those threads are being broken.