Last Call For Sour Virginia

No matter what the outcome is in Virginia tonight, Republicans are already screaming about the vote being rigged.

This is how it’s going to be forever: Republicans and conservatives will claim that any election they lose is fraudulent. Donald Trump established this as the playbook for his party-cum-cult. And the full embrace of this authoritarian and dangerous tactic has been evident in the much-watched and tight-as-a-tick governor’s race in Virginia between Republican Glenn Youngkin and Democrat Terry McAuliffe.

Days before the final balloting on November 2, right-wingers and Republicans began hurling the accusation: The Democrats are stealing this election. They had no evidence. They were just beating this tribal drum. But the aim was to create an echo chamber for the delegitimization of the election should McAuliffe, the former governor, prevail.

The strategy is simple: repeat the phony charge over and over to block full public acceptance of an unfavorable result. And this attack has come from multiple directions. Steve Bannon, the once-indicted-and-Trump-pardoned strategist has inserted himself into the race, and appearing on a Virginia-based talk show on October 29 to discuss the election, warned, “They’re Democrats. They’re going to try to steal it. They can’t win elections they don’t steal, right? They understand this. This is what they did in ’20. It’s time now to start calling them out.”

At a Youngkin rally on October 27, country singer John Rich, who was campaigning for the Republican, suggested to the crowd that a Democratic conspiracy involving Stacey Abrams was afoot: “Why the hell is Stacey Abrams in Virginia right now? What is that? What is she doing up here? We know what she’s doing up here. She’s working on it… Do you really think California voted for Gavin Newsom again? I don’t think so. Stacey Abrams was probably out there, too.” Abrams had been campaigning in Virginia for McAuliffe, much as Rich was doing for Youngkin. (Newsom survived the recall election with 61.9 percent of the vote.)

That same day, conservative talk show host John Fredericks huffed, “Everything’s moving in Youngkin’s direction and the Republicans, but a lot of people fear that this is going to get stolen, they’re gonna try and cheat. We’ve got all kinds of irregularities right now going on.” In another show, Fredericks claimed that Democrats were going into nursing homes to “extract votes from people that were incapacitated.” He did not produce any proof of this nefarious plot.

On one recent episode of Fredericks’ show, John Mills, a former cybersecurity official at the Defense Department who now provides commentary to the conspiratorial-minded and pro-Trump Epoch Times, claimed that security is intentionally poorly designed at vote-counting facilities and “people can walk in and out.”

Amanda Chase, a Republican state senator from Virginia who has campaigned with Youngkin, has been a constant champion of the-Democrats-are-cheating disinformation. On her Facebook page, she declared, “I know how their [sic] cheating. We know. Watching closely.” Appearing on Newsmax, she asserted, “I know how Democrats are cheating, and that information has been given to the Youngkin campaign.” She also told this far-right network that an unidentified man had showed her “exactly how they’re stealing elections in Virginia.” She maintained, “They’re moving, in cyberland, they are switching inactive voters to active voters, all in the same week, it’s undetectable. I know what they’re doing…and now the Youngkin campaign has all that information.” When Virginia attorney general Mark Herring, a Democrat, demanded Chase hand over any material she possessed indicating improbities in the election, a Chase spokesperson told Talking Points Memo, “We don’t owe Herring a thing.” Chase also posted on Facebook a debunked charge that voters had been turned away from early voting in Virginia because they had been sent absentee ballots they never requested.

 

My prediction is this: Trump will demand an audit no matter who wins, and if McAuliffe's early voting lead holds out for a win, we'll see actual violence in the state. Virginia should be prepared to deal with both.

So should all of us.

The Road To Gilead, Con't

The Roberts Court heard oral arguments on Monday over Texas's ridiculous crowdsourced anti-abortion law, and it didn't exactly go well for the Lone Star State, as Vox's Ian Milihiser explains.

 

Texas’s anti-abortion law is, Chief Justice Roberts wrote previously, “not only unusual, but unprecedented.” It effectively prohibits all abortions after the sixth week of pregnancy, but does so through a scheme that, in Justice Sonia Sotomayor’s words, was “engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.”

Under a doctrine known as “sovereign immunity,” private plaintiffs typically are not allowed to sue a state directly in federal court. But the Court held in Ex parte Young (1908) that private plaintiffs may sue the state official tasked with enforcing the law that such a plaintiff wishes to challenge. So, for example, if a law permitted the state attorney general to bring criminal proceedings against abortion providers, a party challenging the law would sue the attorney general.

But SB 8 explicitly forbids any “officer or employee of a state or local governmental entity” in Texas from enforcing it. Instead, it may only be enforced through private lawsuits. These lawsuits may be filed by “any person” who is not an employee of the state against anyone who either performs an abortion or who “aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in these lawsuits receive a bounty of at least $10,000, which must be paid by the defendant.

So the idea is that no one can sue to stop the law because no state official is a proper defendant.

This structure, it should be noted, does permit abortion providers to perform an abortion that violates SB 8, wait until they are sued, and then argue in Texas state court that SB 8 is unconstitutional. The problem with that approach, as Hearron told the justices, is that “no rational abortion provider would violate this law.”

Anyone who does so could be bombarded with thousands of lawsuits, forced to hire an army of lawyers to defend against them, and then be ordered to pay a bounty of at least $10,000 — which means that there is no upper limit on that bounty.

The abortion provider plaintiffs’ primary argument is that, under Young, they may sue state court judges who hear SB 8 lawsuits, and the state court clerks who docket those cases. Yet, while the justices did spend a good deal of time discussing whether judges and clerks are proper defendants, their most revealing questions focused on whether a law like SB 8 should be allowed under any circumstances.

The three most conservative justices — Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch — appeared likely to uphold Texas’s scheme, although Thomas did ask some tough questions of Stone, the Texas lawyer. Thomas noted that SB 8 is unlike other laws permitting lawsuits against private defendants because other laws typically only allow plaintiffs who’ve been injured in some way to file suit.

SB 8, by contrast, effectively deputizes anyone who is not a state official to enforce the state’s anti-abortion law — regardless of whether a particular plaintiff was actually injured by the person they are suing. As Thomas put it, SB 8 plaintiffs are “acting in concert with the state” to enforce the state’s law.

The three liberal justices, meanwhile, left no doubt that they view SB 8 as unacceptable. Sotomayor, for example, pointed to the Court’s school segregation decision in Cooper v. Aaron (1958), which held that the Constitution “can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes.”

Justice Stephen Breyer, meanwhile, quoted early 20th century Justice Oliver Wendell Holmes, who said, “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as the laws of the several States.” SB 8, Breyer suggested, would prevent the Court from striking down state laws.

Roberts, meanwhile, seemed to share the liberal justices’ concerns. He imagined a slightly different version of SB 8, where the minimum bounty was $1 million instead of just $10,000 — and warned that no one would reasonably be willing to risk violating such a law because the cost of losing would be so high. He also criticized Texas for passing a law that allows abortion providers to be sued anywhere in the state, rather than following the ordinary rules governing which legal venues are appropriate.

So that leaves Kavanaugh and Barrett as the justices in the middle, and both appeared sympathetic to the plaintiffs’ arguments.

 

Indeed, Justices Kickstand and Karen seemed rather worried about the argument that blue states could do to guns what Texas is trying to do to abortion: set up a bounty system to stop gun purchases in the state, and use citizens to enforce it. This made Kavanaugh very upset, actually. 

If SB 8 is upheld, and the Court permits the use of private bounty hunters to limit constitutional rights, another state could easily use this mechanism not just to restrict abortions and reproductive care, but also to chill other constitutional rights. As the Firearms Policy Coalition argued in its amicus brief, “it takes little in the way of creative copying for States hostile to the Second Amendment — New York, California, New Jersey, Hawaii, etc. — to declare that the ownership or sale of a handgun is illegal ... and set up a bounty system with the same unbalanced procedures and penalties adopted by Texas in this case.”

This possibility seemed to bother Kavanaugh, who asked about whether a state could authorize a million-dollar bounty against anyone who sells an AR-15, a popular form of semi-automatic rifle.

Even more significantly, Kavanaugh appeared to echo the liberal justices’ concerns that Texas is gaming the system. “There’s a loophole that’s been exploited here,” he told Stone, and suggested that the question before the Court in the Whole Woman’s Health case is “should we extend the principle of Ex parte Young to close this loophole?”

Stone, meanwhile, had a disastrous exchange with Kavanaugh where he argued that someone targeted by an SB 8-style law would have to lobby Congress to enact a federal law protecting their constitutional rights. It “would be difficult to get legislation through Congress,” Kavanaugh deadpanned in response to Stone — an acknowledgement the federal government’s dysfunctional legislative branch is not likely to do much of anything at all.

Barrett, meanwhile, played her cards a little closer to her chest than Kavanaugh, but she seemed bothered that there was no adequate way to challenge SB 8 unless the federal judiciary intervenes. At one point, she expressed concern that abortion providers “cannot get full review” of the law in state court. At another, she questioned whether an SB 8 defendant would be able to get a broad injunction blocking the law in state court.

So, while it remains to be seen how each justice votes, it appears that there may be as many as six votes to allow a lawsuit against SB 8 to move forward. The possibility that any constitutional right could be undermined by an SB 8-style law appeared to bother at least some of the conservative justices who ordinarily vote against abortion rights.

 

The good news is the right to sue Texas over this appears to be in the cards. The bad news is if the court overturns Roe v Wade next year, it's a moot point since Texas and any other Republican state will be able to ban abortion outright. 

A win to allow Texas to be sued and the law enjoined would be cold comfort for tens of millions of women headed to the forced breeding scenario of Gilead.

The Manchin On The Hill, Con't

President Joe Biden Manchin has decreed that we will not have a House vote today on the infrastructure bills, or soon, or maybe at all.

Sen. Joe Manchin III (D-W.Va.) on Monday called on Democrats to slow down in their work to advance a $1.75 trillion plan to overhaul the country’s health care, education, climate and tax laws, raising new doubts about the party’s timeline to advance a critical piece of President Biden’s economic agenda as soon as this week.

Speaking to reporters, Manchin lamented some of the “social” spending in the still-forming package, the means by which Democrats have crafted it, and the potential that it could add to the deficit while spurring new inflation. He called for more time to evaluate its broader fiscal effects.

“I will not support a bill that is this consequential without thoroughly understanding the impact it will have on our national debt, our economy and the American people,” Manchin said. “Every elected representative needs to know what they are voting for and the impact it has, not only on their constituents, but the entire country.”

“I’m open to supporting a final bill that helps move our country forward,” the senator added. “But I’m equally open to voting against a bill that hurts our country.”

In making his remarks, Manchin also rebuked liberal House Democrats who have refused to vote on a parallel measure to improve the nation’s roads, bridges, pipes, ports and Internet connections. These left-leaning lawmakers, represented by the powerful Congressional Progressive Caucus, have held up the infrastructure plan in the hopes of securing Manchin’s firm commitment on their other spending priorities — a strategy that the senator chastised on Monday.

“Holding this bill hostage is not going to work,” he said, urging an immediate vote on the $1.2 trillion infrastructure plan.

Manchin’s statement immediately generated new uncertainty about House Speaker Nancy Pelosi’s plan to hold a vote this week on both of Biden’s long-sought economic packages. Liberal lawmakers have held firm in insisting that the chamber must vote on both bills in tandem, a position that some maintained despite the senator’s stern criticism.

“We intend to pass both bills in the next couple of days,” Rep. Pramila Jayapal (D-Wash.), the leader of the Congressional Progressive Caucus, said during an interview Monday on CNN.

Reacting to Manchin’s allegation that liberals had held the infrastructure bill “hostage,” Jayapal dismissed the critiques, urged lawmakers to “keep tempers down” and stressed that Democrats should trust that the president can ultimately deliver the 51 votes necessary to pass it in the Senate.

“Pramila Jayapal is right,” Rep. Mondaire Jones (D-N.Y.), a member of the Congressional Progressive Caucus, added in a tweet shortly after her interview ended on CNN. “Let’s vote these two bills out of the House this week.”

The White House, meanwhile, saw in Manchin’s comments a cause for optimism. In her own statement, press secretary Jen Psaki said that the $1.75 trillion bill meets the senator’s criteria to combat inflation, create jobs and cover its costs in full.

“As a result, we remain confident that the plan will gain Senator Manchin’s support,” Psaki said.

 

Manchin cutting off the Biden administration, Nancy Pelosi, and Chuck Schumer by holding this press conference on Monday is a clear sign that he continues to hold all the leverage.  Rep. Jayapal and the House progressive caucus are already signaling that they will no longer hold the Senate bipartisan bill up, and that they recognize Manchin has all of the power here because unlike Jayapal, he's ready to destroy both bills.

People keep forgetting this. Manchin has the motive, the means, and the opportunity to commit a double homicide here and he's said at every opportunity that he will pull the trigger.

Biden is trying to ignore him, Jayapal is trying to go around him, but any solution is going to have to go through him.

That's just the damn truth. And should Jayapal and Pelosi relent and the House vote on the Senate plan get wrecked a third time and delayed once again, I don't think any of it's going to pass.

At all.