The United States faces a constitutional crisis

Justice Ruth Bader Ginsburg, whose death at age 87 will lead to a quick nomination and Senate fight over her replacement, and may lead a now short-handed court to make a number of rulings to tilt the upcoming elections in the Republicans’ favor.

A brewing acid test of America’s soul

This year’s general election season started under the shadow of right-wing gunmen called onto the streets by Donald Trump. So do we get election violence with a Supreme Court stamp of approval now?

Two constitutional issues that may
arise over the coming months

Article I, Section 5: “Each House shall be the judge of the Elections, Returns and Qualifications of its own Members.”

In a 2018 North Carolina race, GOP operatives unidentified as such collected absentee ballots from Democratic areas with a promise to take them to the election officers but just threw them away. Initially it had appeared that the Republican had scored a narrow victory, but it turned out that the election fraud may have been enough to affect the result. State canvassers refused to certify the result. Had they certified it, they knew that the House might have refused to seat that Republican anyway. As it turned out, the state held a special election, the Democrat ran again and the Republicans replaced their disgraced fraud guy. The GOP won that special election by a tiny margin – Republicans do better in special elections because they tend to be more disciplined about turning out for local and special elections. It was a result that Dems would rather have not seen but was accepted as legitimate. The Democrats are gearing up again to take that seat, which Republicans have held for more than 50 years, in this year’s election.

Moral of the story? We are dealing with desperate and unscrupulous people. There is already a lot of Republican criminal activity aimed at this year’s elections. There have been armed intimidation of Democratic elected officials, threats to send goons with guns and badges to polling places, disinformation about voting, flat-out denial of overseas voters’ federally recognized rights to register and vote, thugs from the president on down vowing not to recognize a GOP election loss, and vandalism of the US Postal Service. What else, we shall see. But if in a Democratic wave election some Republicans squeak through congressional races by virtue of vote illegal suppression or outright fraud, it’s reasonable to expect that in a chamber controlled by Democrats such candidates will get their credentials challenged. It should be expected that if the GOP retains control of the Senate they would summarily dismiss any proofs of fraud by a Republican in a race for a seat in that body.

The moral of the story for Democrats in Panama? Document your vote with photos and notes that you keep to yourself, just in case. Such documentation could end up as a tiny but decisive bit of evidence in a post-election lawsuit.

Article III, Section 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

It has been pointed out that this election is, more than just about control of the White House, but also about control of the Senate so as to determine who replaces Ruth Bader Ginsburg. But it can be much more than that. The Constitution says nothing about the size of the Supreme Court. It’s up to the Congress and it has varied over the years. All those legal lightweight far-right ideologues with whom Trump and Moscow Mitch have packed into the lower federal courts? Except for outright and provable misconduct they can’t be removed, but with a reorganization of the courts they might be marginalized.

The reality is that Donald Trump is a racketeer within the meaning of the federal RICO statute – a serial mail, wire, bank, tax and bankruptcy fraud guy with a lot more than three prior acts over the years. Should Democrats have qualms about the comity of a bygone era, or the dignity of institutions that have been tainted, which would prevent us from playing hardball to repair the damage to our system of justice? You go forward to new senses of comity and dignity by correcting the abuses and building a national consensus that they won’t be allowed to happen again.


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