June 8, 2023

This morning the Supreme Court handed down a decision in Allen v. Milligan, a case that challenged the Alabama legislature’s redistricting of the state after the 2020 census on the grounds that the new districts had been configured to pack the state’s growing numbers of Black voters into a single district and thus dilute their vote. Such discrimination based on race, plaintiffs charged, violated the 1965 Voting Rights Act (VRA).

District courts agreed with the plaintiffs and told the state it couldn’t use the new map, but in February 2022 the Supreme Court issued a stay of the injunction prohibiting that map. The Supreme Court ruling left the Alabama map intact for the 2022 election. Legal scholar Stephen Vladeck noted that the decision was part of the court’s recent use of the “shadow docket,” unsigned, unexplained orders issued without a hearing. 

Today’s 5–4 decision upheld the verdicts of the lower courts, agreeing that the new Alabama map was, after all, illegal, because it violates Section 2 of the VRA, which prohibits the denial of the right to vote on account of race. This leaves intact the ability of plaintiffs to sue when states appear to discriminate against minority voters. Similar lawsuits are pending in ten different states. 

But, as Vladeck notes, the Supreme Court’s February 2022 decision leaving the discriminatory map in Alabama, as well as similar maps in other states, in place for the November election, is likely responsible for the Republicans’ current majority in the House of Representatives. The Cook Political Report, which follows elections, immediately changed their ratings for the leanings of five House districts after news of the Supreme Court decision.

That House majority is currently at an impasse that makes it impossible to conduct business. The extremist House Freedom Caucus (HFC) has revolted against House speaker Kevin McCarthy (R-CA) because of the budget deal he cut with President Biden before he would agree to raise the debt ceiling. Members of the HFC are demanding deeper cuts than McCarthy agreed to. The revolt of the far right puts into danger crucial spending bills, raising fears of a government shutdown in the fall. 

To placate the extremists, McCarthy has apparently agreed to take up two bills: one to kill a Biden-backed gun regulation and another to push even more strongly against abortion rights. This move, which flies in the face of popular opinion, has angered Republicans in battleground districts, who are revolting against measures that will hurt them at home. It also runs the risk of alienating Democrats McCarthy will need to pass spending measures if the far right refuses to vote for them.

The extremism of today’s Republican Party grew in large part from the work of televangelist Pat Robertson, who died today at age 93. The son of a segregationist southern Democratic senator, Baptist minister Robertson urged evangelical Christians to vote and made them a core constituency of the Republican Party. Paving the way for those today calling for an end to liberal democracy, Robertson blamed LGBTQ Americans and women for secularizing the United States, which he saw as a tragedy and frequently blamed for natural disasters.  

That political ideology depended on creating a false picture of what was really going on in the country. The Republican Party has become so wedded to lying about reality that today we saw Florida governor and Republican candidate for president Ron DeSantis circulating fake images of rival candidate Donald Trump embracing right-wing nemesis Dr. Anthony Fauci as a way to discredit Trump. 

Trump’s team cried foul at the fake images, but the former president himself relies on manipulating reality to garner political support. CNN national correspondent Kristen Holmes reported today that Trump’s people reached out this week to congressional allies to encourage them to flood the airwaves with a defense of Trump and attacks on special counsel Jack Smith before a possible indictment of the former president. 

To that end, Trump’s supporters spent the week trying to gin up outrage over a document they claimed shows that President Biden had taken a bribe as vice president. The document in question appears to be an unverified report that came to the Department of Justice through Trump lawyer Rudy Giuliani, one that the Trump Department of Justice dropped after it determined that the allegation was not supported by facts. But the practice of influencing politics through sham investigations is one of the Republicans’ key tools, and Trump allies have flooded social media this week insisting that this document is a smoking gun. 

They were, of course, trying to set up a defense for the former president’s possible indictment on charges related to his refusal to hand over national security documents he had taken when he left the White House. 

This evening, news broke that Trump has, indeed, been indicted by a grand jury in South Florida in connection with the documents discovered at Mar-a-Lago. The indictment is sealed, but there are reports that it includes seven counts of lawbreaking, including at least one related to the Espionage Act. These charges are serious indeed. 

Trump is now the first former U.S. president in history to face federal criminal charges (his first indictment, on March 30, was at the state level). As The Guardian’s David Smith puts it, “he really might be going to jail.” Smith—who is a keen observer of American politics—notes that it is hard to figure out what is important and what is not in the general drama around the former president, but this indictment is “genuinely monumental.” 

According to Trump’s outraged posts on social media, he has been summoned to appear at the Federal Courthouse in Miami next Tuesday. 

Trump’s team asked his allies to jump to his defense, and they did. Trump loyalists implied that the “sham indictment” was destined to distract from the blockbuster story they had invented about Biden. House speaker McCarthy implied that Biden, who has had nothing to do with the Department of Justice investigation, special counsel in charge of the investigation Jack Smith, or the grand jury deliberations, was responsible for launching a political attack on a rival. The third Republican in House leadership, New York representative Elise Stefanik, also defended Trump…in a fundraising email that assured donors their money would go to the “OFFICIAL TRUMP DEFENSE FUND” though, in fact, most of it would be diverted to Stefanik’s operations. Trump, too, lost no time in fundraising off the indictment.

Significantly, though, all Republicans who do not identify with the far right have remained steadfastly silent in the face of the day’s news. The exception has been long-shot presidential candidate Asa Hutchinson, who has called for Trump to end his campaign.

New York Times reporter Maggie Haberman, who communicates with the Trump camp, says he holed up tonight not with his legal team but with political advisors. CBS News correspondent Robert Costa reports tonight that the camps of Republican rivals think that this news will actually help Trump in the short term, as his base rallies to him, but that the news of what is at stake in the theft of national security documents might well lose him support over time. If another indictment comes from Georgia concerning his attempts to overturn the results of the 2020 election there, rival camps say he might “bleed out.”

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Notes:

https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket

https://www.democracydocket.com/analysis/how-the-u-s-supreme-courts-decision-in-allen-v-milligan-will-impact-ongoing-redistricting-litigation/

https://rollcall.com/2023/06/08/house-gop-leaders-work-to-tamp-down-rule-fracas/

https://www.politico.com/news/2023/06/08/mccarthy-republican-leadership-abortion-00101045

https://www.rollingstone.com/politics/politics-news/pat-robertson-dead-obituary-1234766208/

https://www.cnn.com/2023/06/08/politics/republicans-pat-robertson-what-matters/index.html

https://www.nytimes.com/2023/06/08/us/pat-robertson-dead.html

https://www.nytimes.com/2023/06/08/us/politics/kevin-mccarthy-house-republicans-mutiny.html

https://www.cnn.com/2023/06/08/politics/desantis-campaign-video-fake-ai-image/index.html

https://twitter.com/KristenhCNN/status/1666844103445819413

https://www.washingtonpost.com/national-security/2023/06/05/james-comer-christopher-wray-contempt-congress/

https://www.washingtonpost.com/national-security/2023/06/05/james-comer-christopher-wray-contempt-congress/

https://www.newsweek.com/document-center-comers-fbi-request-explained-1803720

https://www.lawfareblog.com/trump-indicted-mar-lago-probe

https://www.msnbc.com/deadline-white-house/deadline-legal-blog/trump-charges-espionage-act-indictment-rcna88361

https://www.nytimes.com/live/2023/06/08/us/trump-indictment-documents

https://www.theguardian.com/us-news/2023/jun/09/could-trump-go-to-jail-federal-charges-over-classified-docs-show-momentum-is-building

https://www.nytimes.com/2023/06/09/us/politics/trump-indictment-club-bedminster-nj.html

https://www.nytimes.com/2023/06/08/us/politics/desantis-deepfakes-trump-fauci.html

Twitter links: 

steve_vladeck/status/1666822494635036675

CookPolitical/status/1666870976162693137

SpeakerMcCarthy/status/1666979107681325064

jbendery/status/1666994870018269186

jordainc/status/1666965973704876033

costareports/status/1666964960516227074

RonFilipkowski/status/1666988694975180802/photo/1