Today In Democracy
Resources for today’s discussion on Clubhouse. April 18, 2022.
A Barometer of Democracy
Urban League State of Black America
https://soba.iamempowered.com/2022-executive-summary
Understanding Polarization
https://hiddentribes.us/media/qfpekz4g/hidden_tribes_report.pdf
Pyramids of Hate
https://www.adl.org/media/12060/download
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Did you know Voting isn’t a Constitutional Right of Citizenship?
Article from Eric Foster.
We need to fix this if we’re going to keep our Constitutional Republic & Representative Democracy.
The right to equal and unencumbered ability to vote is not a condition, term or grant of Citizenship. This is a fatal flaw in our American enterprise and the overwhelming majority of my fellow American citizens don’t know this fact. For context about the hypocrisy of this “Ghost in the Machine”, let me provide a brief outline of an American Journey. I’m a 10th generation African American citizen and father. My mother’s family was brought to America as slaves in roughly 1725, to Hemingway South Carolina. We were freed at the death of my Great Great-Great Grandfather and plantation owner, Peter Pressley in roughly 1836. My family has branched from there across our country and achieved the various levels of the “hoped for American Dream”, in the public and private sector, as successful business owners through to high levels of elected office. My sons are part of the 11th generation of our family story. America has been both cruel and hopeful, demeaning and uplifting, violent and peaceful, to my family and to all who have ventured through the American experience.
One vestige of the American experience is citizenship and the enumerable rights that are afforded with it. It’s the reason why so many seek the opportunity regardless of the dangerous refugee peril to obtain it or the dehumanizing bounds of slavery or forced ethnic cleansing of the Indigenous residents who lived here prior to colonization by non-indigenous European immigrants. Despite our past and in spite of our self-developed impediments, we have created a vehicle for freedom and both self and community determination that provides a great range of expressions. Constitutionally enabled and defined rights of citizenship (both in the original amendments ratified at the Constitutional Convention of 1787 and the 17 amendments added afterwards) include:
· Privileges and Immunities Clause
· Due Process Clause
· Procedural Due Process
· Substantive Due Process
· Economic Rights including commerce, retail consumerism, employment, purchasing property, etc.
· Privacy Rights
· Equal Protection
· Freedom from State Sanctioned discriminatory practices on persons within specific defined categories
· Rights to the freedom of speech, assembly, press, worship as you choose, possess & bear arms, marry of your choice and
· Travel inside the United States without passport or travel restrictions and travel internationally and return to America with a US passport
· Bring non-resident family members and children through the legal immigration process
Rights enabled and derived as a part of Citizenship can’t be treated in a disparate or disparaging nature by Individual States, Territories, or the District of Columbia. You have the same uniform and unfettered right to fly to Alaska or Hawaii, buy a home in Connecticut and North Dakota, make public comment at Government or other public gatherings, go to a Catholic Church, a Jewish Synagogue, an Islamic Mosque or a Protestant Church (White Evangelical, Historic African American, Hispanic, etc.) and be free from any disparaging treatment as a citizen. Your enabled rights of Citizenship don’t change from State to State (despite what the Radical Trump Pro-Dictatorship political officials may want to install). Despite calls from the Claremont Institute, Fox News, Breitbart (and other Conservative Mainstream Media organizations), Pro-Dictatorship member of Congress, Pat Buchanan, Steve Bannon or Governors in Florida, South Dakota, you can’t revoke or cancel Citizenship based upon your voting choice, Political ideological beliefs or loyalty to Donald Trump. In Afroyim v. Rusk,14 a divided Court extended the understanding of Citizenship as follows; [T]he (14th) Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other government unit.” As a citizen, we have the same equal package of rights regardless of where we live.
What’s missing from this list of Constitutionally guaranteed rights of Citizenship? What presumed guaranteed right is treated in unequal and disparaging ways in each State, despite various Constitutional Amendments that reference it? Voting. That’s right, voting is not a right linked to your Citizenship, regardless of how long you’ve been a citizen or your family have been citizens[1][2]. I provided my personal background to juxtapose the so-called pronouncements from the Radical Trump Pro-Dictatorship political and voting class, the Non-Trump Republican political class and those who oppose any Federal actions on the matter while claiming that they stand for only allowing legal “Citizens” to vote. Be it a 10th generation African American citizen, a 3rd generation German-American former resident of the White House (2017-2021) or any Citizen regardless of method of Citizenship, we are all currently disenfranchised in the allocation and exercise of voting.
But I thought voting is a Constitutionally protected right, isn’t that the same as a Constitutionally guaranteed right?
Well, no. As I started studying this issue, I learned of the disconnect between Voting and Citizenship and the distinction between Guaranteed and Protected in terms of application of rights. First, let’s look at the disconnection of Voting and Citizenship.
The most basic assumption is that the right to vote is either a right provided for under the Bill of Rights, the First Amendment protections of freedom of speech (voting is an expression of one’s opinion or speech) or a right qualified under one of the following Constitutional Amendments:
· The 14th Amendment (ratified 1868) protects the right to vote against discrimination,
· the 15th Amendment (ratified 1870) prohibits vote denial or abridgement based on race,
· the 19th Amendment (ratified 1920) prohibits vote denial or abridgement based on sex,
· the 23rd Amendment (ratified 1961) afforded the residents of Washington, D.C.
· the ability to vote for president,
· the 24th Amendment (ratified 1964) bans poll taxes, and
· the 26th Amendment (ratified 1971) prohibits vote denial or abridgement based on age for those 18 years or older.
To paraphrase Luke Skywalker speaking to his nephew Ben Solo/Kylo Ren in the Last Jedi, “everything you just said is wrong”. Because voting has not been defined in affirmative verbiage expressly spelling out the connection, The US Supreme Court has ruled in multiple cases that voting isn’t an expressed right of Citizenship nor is it a Guaranteed right of Citizenship. Amendments to the U.S. Constitution have required “equal protection,” effectively preventing States from restrictions of voting based on race, sex, age, some discriminatory methods provided some equality of access to voting for President to the citizens of Washington D.C. yet various versions of the Supreme Court have expressed stated that the grant of voting rights is a grant of the individual States & DC for Presidential elections. These cognitively incoherent rulings, (both after the Civil War and rulings in the past 22 years) and lack of Federal Statutory action, Constitutional amendment or Judicial rulings overturning these precedents have left all American Citizens at the mercy of each State’s purview and political machinations.
Didn’t the 14th amendment and 15th amendment resolve this question and what Supreme Court cases have said otherwise?
The adoption of the 14th and 15th Amendments should have set the predicate for formalizing the relationship between Citizenship and Voting Rights. The 14th amendment set defined standards, rights and immunities for American Citizenship[3] and Section 2[4] of the 14th amendment penalizes states with loss of Congressional Representation when the right to vote at any election for Federal and State offices is denied or abridged to any male citizen of the United States. The 15th Amendment provided a direct link to Section One and Two of the 14th amendments, in Section One (The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude). Later voting rights amendments to the U.S. Constitution—especially the Nineteenth and Twenty-Sixth Amendments—copied the Fifteenth’s structure and its wording, declaring that the right to vote “shall not be denied” on account of sex or age, respectively. Section Five of the 14th Amendment and Section Two of the 15th Amendment expressly provided for Congress to have the legal authority to use legislation to enforce these amendments, which Congress has taken action in via the Enforcement Acts & various Civil Rights Acts of the late 1800’s through the 1960’s. This interpretation is consistent with the concept of federal supremacy in the Constitution. Federal supremacy of laws and the ability to produce laws that governed the Country as a whole require national citizenship. Federalist No. 52 expressed the founders' belief that the right to vote rested with the people and emanated from the U.S. Constitution and that individual states could not deny this right. The underlying principle of this connection is supported by Gray v. Sanders, 372 U.S. 368 (1963), Reynolds v. Sims, 377 U.S. 533 (1964), and Wesberry v. Sanders, 376 U.S. 1 (1964), where the Supreme Court established the one-person, one-vote principle.
Unfortunately, a series of Supreme Court decisions (see below) during the late 19th century and the last two decades of the 20th century overthrew the intent and application of the expansion of citizenship to include voting rights via the Fourteenth and Fifteenth Amendments, civil rights acts and enforcement mechanisms prescribed to enable Congressional and Administrative rules to protect the newly enumerated rights provided for under these amendments:
Slaughterhouse Cases, 83 U.S. 36 (1873);
Minor v. Happersett - 88 U.S. (21 Wall.) 162 (1874)
United States v. Cruikshank, 92 U.S. 542 (1876);
United States v. Reese, 92 U.S. 214 (1876),
United States v. Harris, 106 U.S. 629 (1883);
Civil Rights Cases, 109 U.S. 3 (1883).
Elk v. Wilkins - 112 U.S. 94, 5 S. Ct. 41 (1884)
McPherson v. Blacker, 146 U.S. 1, 35 (1892)
Guinn v. United States, 238 U.S. 347 (1915)
San Antonio Independent School District v. Rodriguez, 411 U.S. 1.
Washington v. Davis, 426 U.S. 229 (1976)
City of Boerne v. Flores, 521 U.S. 507 (1997)
United States V. Morrison (99-5) 169 F.3d 820
Bush v. Gore, 531 U.S. 98 (2000)
Chiafalo v. Washington, 591 U.S. 19-465 (2020)
Shelby County v. Holder, 570 U.S. 529 (2013)
Baten v. McMaster, 967 F.3d 345 (4th Cir. 2020)
The cumulative effect of these rulings is as follows:
1. Voting/suffrage was not coextensive with the citizenship of the States nor explicitly given as a right of national citizenship when the Constitution was adopted and subsequently that citizenship alone is not sufficient cause for voting[5].
2. The 14th amendment didn't convey an expansion of the privileges & immunities of citizenship that could include voting[6].
3. The 15th amendment did not confer upon any individual the right to vote, but merely forbade states to give any citizen preferential treatment. In this interpretation, the right to vote derived from states, rather than the federal government[7].
4. The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College[8].
5. If a law that enforces Fourteenth Amendment rights is preventive rather than remedial, it must be congruent and proportional to the goal that it is aiming to achieve. The Fourteenth Amendment only authorized Congress to take remedial steps against state action that violated the amendment. The Amendment prohibits only & applied only to violating acts of the states, not to private conduct acts of individuals[9].
6. Only courts can shape the substantive rights under the Fourteenth Amendment. Legislatures can only enforce a pre-existing interpretation of the Fourteenth Amendment, unless they are enacting prophylactic legislation that aims to prevent violations of rights guaranteed by the Court. The Court returned to its state action doctrine from the 19th-century Civil Rights Cases in limiting the prophylactic power of Congress granted under the Fourteenth Amendment[10].
7. Limits to the voting rights enforcement power of the Fifteenth Amendment (by extension the 19th, 23rd and 26th via relegating the Congressionally codified enforcement measures as improper & extraordinary legislative departure and unfamiliar from the Federalism relationship between States and Federal Government. Further diminishes the voting rights enforcement capacity of the Fifteenth Amendment by prescribing the right to vote for Presidential Electors as the State legislature body is fundamental, a State legislature’s right to decide Presidential electors is of equal weight to the right of its citizens to vote for electors and that State legislatures’ (after granting the voting franchise to citizens of its state & in the Court’s contextual interpretation of Article II) can take back the power to appoint electors independent of the voting action of its citizens at any time)[11].
These decisions have primarily stood as precedent since their ruling, save portions of US v. Reece (US v. Raines (1960) pulled back some of the negative aspects of Reese, but it left the classification of voting rights as a grant of the States under the 10th Amendment). The Elk v. Wilkins opinion remains valid for interpretation of future citizenship issues regarding the 14th Amendment but has been rendered undebatable for its application to native Indians due to the 1924 Act. These decisions provide U.S. states & specifically State Legislative bodies, with incredible power over who is allowed to participate in elections, regardless of Citizenship status, i.e., a State Legislature can prohibit access to voting via criminal penalty status, tax obligation status, geographical residence & voting preference selection[12] or overthrow the expressed voting results of the election if they don’t accept the desired outcome (Independent State Legislature Doctrine)[13]. These decisions have a bi-polar effect on the 14th& 15thAmendments & the construction on Citizenship enumerated rights (Privileges and Immunities Clause, Equal Protections Clause, Due Process Clause, Privacy Rights, etc.), by using judicial action to treat voting rights as the unwanted stepchild of Citizenship rights. This holds a negative dagger over the fate of the 236,705,879 voting age eligible citizens as of the 2020 US Census.
So why haven’t we fixed the connection of voting right and citizenship rights?
We have a natural disconnect between the Pro-Democracy and Pro-Dictatorship movements in America, that stands in the way of any consensus to ensure voting is an unquestioned right of Citizenship. Pro-Dictatorship movement you ask? It’s not just reflective of the current Radical Trump Pro-Dictatorship movement, which requires unquestioned pledges of faith and loyalty to Donald Trump, but it’s a symptom of a longer-term struggle within the soul of America. The American Conservative Movement has been and maintains an Anti-Citizenship Voting Rights Guarantee position. They support the disjointed administration of voting rights access and limiting which Citizens can have access.
American Citizenship has been served as both a crowning jewel, an unreachable dream and an exclusionary barrier to the various competing constituencies who seek to obtain and share from. American citizenship has never had a clean common entry point and the ability to exercise the full franchise has been diluted, obstructed & constricted depending upon the citizen group. Some of the barriers separate and apart from racial voting discrimination towards African Americans and Women’s suffrage include:
· 1789 - The First Presidential election - The Constitution of the United States grants the states the power to set voting requirements. Generally, states limited this right to property-owning or tax-paying white males (about 6% of the population). However, some states allowed also Black males to vote, and New Jersey also included unmarried and widowed women, regardless of color. Georgia removes property requirement for voting. Catholics, Jews, and Quakers were barred from voting.
· 1828 - Maryland passes a law to allow Jewish Americans to vote. Maryland was the last state to remove religious restrictions for voting.
· 1856 - The last state to abolish property qualification was North Carolina.
· 1860 - Tax-paying qualifications remained in five states in 1860 – Massachusetts, Rhode Island, Pennsylvania, Delaware and North Carolina. They survived in Pennsylvania and Rhode Island until the 20th century.
· 1876 - Native Americans are ruled non-citizens and ineligible to vote by the Supreme Court of the United States.
· 1882 - Chinese Americans lose the right to vote and become citizens through the Chinese Exclusion Act.
· 1887 - Citizenship is granted to Native Americans who are willing to disassociate themselves from their tribe by the Dawes Act, making those males technically eligible to vote.
· 1899 - The right to vote in the territory of Hawaii is restricted to English and Hawaiian speaking men and the territory is not allowed to make its own suffrage legislation.
· 1924 - All Native Americans are granted citizenship and the right to vote through the Indian Citizenship Act, regardless of tribal affiliation. By this point, approximately two thirds of Native Americans were already citizens. Notwithstanding, some western states continued to bar Native Americans from voting until 1948. South Dakota refused to follow the law.
· 1943 - Chinese immigrants are given the right to citizenship and the right to vote by the Magnuson Act.
· 1952 - All Americans with Asian ancestry are allowed to vote through the McCarran Walter Act.
· 1958 - The provision in the North Dakota state constitution that required Native Americans to renounce their tribal affiliations two years before an election is removed.
· 1970 - Alaska ends the use of literacy tests.
· 1986 - United States Military and Uniformed Services, Merchant Marine, other citizens overseas, living on bases in the United States, abroad, or aboard ship are granted the right to vote by the Uniformed and Overseas Citizens Absentee Voting Act.
As a country, we’ve done a better job of devaluing the full expressive power of citizenship than we tell the external world. Citizenship absent of the guaranteed right to vote is a conditional dictatorship, in which the right to fully participate in governing can be taken by Pro-Dictatorship Authoritarian actors. The failure of Communist & Socialist Dictatorships has been the failure to provide a facsimile of governance by the citizenry by the binding excise of their vote. Elections weren’t a part of those Governance models. This is what Modern day Pro-Dictatorship movements have identified, the exhibition of the right to vote with the ability to manipulate the outcome and restrict the access of countervailing voices and voters. This is the model of Hungary’s Prime Minister Viktor Orban so-called “illiberal democracy” (A Dictatorship with fake elections), Poland’s de facto ruler, Jarosław Kaczyński, India’s Prime Minister Narendra Modi, Philippines President Rodrigo Duterte, Turkey’s President Recep Tayyip Erdoğan, Egypt’s President Abdel Fattah al-Sisi, Brazil’s President Jair Bolsonaro, Russia President Vladimir Putin, Chinese President Xi Jinping and former US President Donald Trump.[14]
Yes, I include Donald Trump in here, both by his actions, words and endorsement of fellow Modern Day Dictators and partnership with the Pro-Dictatorship Conservative Christian Right Theocratic movement in America. This movement has been at the vanguard of the purposeful decoupling of voting from citizenship, allowing them to control the supply and demand of votes available to elect officials of their choosing. These stakeholders and supportive voters use the following combination of legal, political and social narratives to restrict citizen access to voting and claiming to support the concept of only “legal citizens” having the unfettered right to vote:
· Independent State Legislature Doctrine via both the Substance/Procedure Thesis and the Prevailing View Thesis
· Justice John Marshall Harlan II Originalist Interpretive Doctrine
· The dual lie of Election Integrity protection for Citizens only and that Voting Rights are already protected and unfettered
Independent State Legislature Doctrine – Legislative Rationale
This restrictive and Anti-Democracy interpretation of the Presidential Electors Clause started with McPherson v. Blacker, 146 U.S. 1 (1892), a Michigan case that challenged the State law for determining the Presidential electors for the upcoming 1892 November General election, by a district system. The Court rejected the challenge, citing the appointment and mode of appointment of Electors belong exclusively to the states Article II under the constitution and due to the absence of a uniform national system for appointing Electors, then the legislatures do not have to consult the public at all. While this gets the most attention in citations, there is another part of the decision that undergirds this Doctrine concept. It’s as follows:
· The second clause of Article II of the Constitution was not amended by the Fourteenth and Fifteenth Amendments, and they do not limit the power of appointment to the particular manner pursued at the time of the adoption of these amendments or secure to every male inhabitant of a state, being a citizen of the United States, the right from the time of his majority to vote for presidential electors.
In layman’s terms, the Supreme Court said that the 14th and 14th amendments didn’t impact the Presidential Electors Clause (PEC) & nothing in the PEC, 14th or 15th amendments secured the right of eligible citizen voters to have a guaranteed say or vote in the outcome of Presidential elections.
This opinion stayed in the background of election and voting rights decisions (while gaining support among the Anti-Democracy/Pro-Dictatorship sector of the Conservative movement in America and the White Majoritarian Movement), except for dissenting opinions but wasn’t a primary factor until Bush v. Gore, 531 U.S. 98 (2000). Bush V Gore provided the first judicial vehicle to advance this concept (and inherent Federalism conflict) in a legal challenge involved the Presidential election between:
· Florida State Supreme Court function and judicial supremacy as the final arbitrator of State election law disputes &
· The Florida State Legislatures’ “Independent State Legislature Doctrine” authority in Federal election decision making.
Since Chief Justice William Rehnquist was throwing out traditional Federal precedent of avoiding interference in State Supreme Court decisions, this was the perfect opportunity to insert and modernize the Doctrine without resting the majority decision upon this concept. Rehnquist, Justice Scalia & Justice Thomas authored the “additional ground” exception as the vehicle to insert the Independent State Legislature Doctrine to attack the Florida Supreme Court’s role in determining State election law disputes. Rehnquist’s Additional Grounds exception provided modern advancement to the idea that “The U.S. Constitution gives state legislatures the sole authority to set all election rules — including the assigning of Electoral College votes — independent, unconstrained, and immune from judicial review”.
While the judicial ruling in Bush v. Gore was written as an exclusive remedy to the Florida recount & could not be cited in any other judicial rulings, it has been cited in hundreds of cases[15] since (primarily by Conservative Pro-Dictatorship adherents and organizations) and drives the lies communicated by the Trump team during and after the 2020 General Election.
The Doctrine is crazy, because the State legislatures are bound by their State Constitutions as a co-equal branch of Government. State legislatures pass enabling laws to delegate the operational management of elections to the Secretary of State and/or related Election administrative agencies of the Executive branch. State legislatures abide by the independent arbiter role of the State Judiciary as the third branch of State Government & separation of Powers Doctrine/Constitutional language of the State in question. State Constitutions would have the legal authority under the 10th Amendment & concept of Federalism, to impose substantive limitations on State Legislatures. These are the States Rights principles of our multilevel Republic form of Government.
The myth and lie of States “improperly changing their election laws” under the Independent State Legislature Doctrine orthodoxy implies that the constraints of Co-Equal Governance can be dispatched for purely Authoritarian Dictatorial motives to impose their own electoral rule. Taken to its natural extreme, this Doctrine provides a further predicate that state legislatures supersede any election result (State, County, Municipal, School Districts & Special Authorities), any rights guaranteed in state constitutions or even initiatives passed by voters. It effectively concludes that there can be no possible checks and balances on state legislatures' authority when it comes to election law. Donald Trump and his Pro-Dictatorship elected official and candidate insurgents are seeking to make all elections speculative in practice under the false narrative that this “Doctrine” was the “prevailing view” during the nineteenth century and so this has been the standard precedent since McPherson (1892)[16] (the only place where the Independent State Legislature Doctrine availed in a Federal Election was Baldwin v. Trowbridge (1866), a House of Representatives contested election during a midterm election cycle). The Independent State Legislature Doctrine is contrarian to voting rights and creates a legal predicate to invalidate Citizen voting choices and destroys the concept of co-equal branches of governance vested in State Executive Branch, Constitutional Election Officers and State Judiciary to carry out their enumerated powers passed by legislative action and operationalized via the administrative rules making process. That’s a Dictatorship Doctrine. For the record, no State made Unconstitutional adjustments to their election laws because:
1. The Independent State Legislature Doctrine isn’t judicial precedent, Constitutional Law nor practical intent of the framers of the Articles of Confederation Conference nor the Constitutional Convention of 1878.
2. State Legislatures are subject to substantive state constitutional restrictions as well as constitutionally-mandated lawmaking procedures, as a co-equal branch of State Government, via Federalism principles.
3. All of the voting procedure modifications (39 States made modifications to voting procedures including 19 States won by Trump & 20 States won by President Biden) and Absentee/mail-in voting procedure modifications (37 States made modifications to absentee/mail-in voting procedures including 16 States won by Trump and 21 States won by President Biden)[17][18] went through the existing election Statutory laws, administrative rules making processes, Statutory & Constitutionally granted powers of the Executive Branch and litigation processes as defined by State Judicial Laws and procedures along with any judicial rulings preventing adoption of modifications. None of the actions taken were outside of their State constitutional
Despite these facts, the Independent State Legislature Doctrine is a driving engine behind Trump Pro-Dictatorship party controlled State Legislatures (with support of Radical Trump Pro-Dictatorship organizations like the Heritage Foundation, the Claremont Institute, the Federalist Society, the Honest Elections Project, the Republican National Committee) pushing to replace State Constitutionally or Statutorily empowered election officials role with their majority controlled Legislatures so the body can make the final decision on certifying the winners in Presidential and non-Presidential elections (Statewide Office holders, Congressional & Senate candidates, even State legislative district winners). This is crazy yet rooted in a reading of the Constitution (incorrect as it is).
Justice John Marshall Harlan II Originalist Interpretive Doctrine – Judicial Rationale
The second branch of the Pro-Dictatorship attack on citizenship and voting rights lives under the Originalist Interpretive Doctrine, which drives from four critical dissenting opinions by US Supreme Court Justice John Marshall Harlen II. Justice Marshall II is a complex jurist. Harlen was the first Supreme Court nominee to appear before the Senate Judiciary committee and answer questions about his judicial philosophy prior to a confirmation vote. Justice Harlan was a Conservative icon[19] and a duality paradoxical figure in his jurisprudence. He voted for the advancement of civil rights, separation of powers and substantive due process expansion. Justice Harlan was also extremely Anti-Voting Rights expansion, equal representation in legislative districts and Statewide elections and staunchly opposed to equating voting and citizenship as a mutually linked set of rights. A member of the Warren Court, through dissent in a number of critical voting rights and apportionment cases, created a record that I call the “Originalist Interpretive Doctrine”, which provides an judicial roadmap for the restriction and disqualification of voting rights for classes of citizens, Citizens voting rights are the providence of the State and subject to the State’s desire, the validation for malapportionment outcomes in redistricting and inequitably weighing the vote value for certain citizen groups (rural voters) versus other citizen groups (urban voters). The pillars of the Originalist Interpretive Doctrine (and Supreme Court Cases where his dissent is recorded) are as follows:
· One Person One Vote rule doesn’t have Constitutional standing & One Vote Rule of Equality (equal weight/effectiveness of one’s vote) isn’t a Federal Judicial issue – Justice Harlen led the dissent in Baker v. Carr 369 U.S. 186 (1962), against the ruling that the Constitution enshrined the “one person one vote” principle that was borne via the majority decision in Colegrove v. Green, 328 U.S. 549 (1946) and that One man, one vote mandated equal proportional legislative representation in the boundaries of legislative districts. He was pro-malapportionment, i.e. he didn’t believe that the plaintiff’s showed that the discrimination in district boundaries violated their Constitutional right, that the State had to meet a Federally mandated equal proportional representation requirement in drawing boundaries & that the Federal Courts should stay out of the “Political Thicket” of reapportionment.
· Citizens voting rights only exist if the State allows it and it can take it from classifications of citizens if it chooses – In Wesberry v. Sanders, 376 U.S. 1 (1964) Harlen opined (alone at the time) that Article I, section 2 permits the states to completely disqualify from the franchise any group of citizen voters that it chooses to disqualify (the disenfranchisement of citizens with felony convictions could be extended to Democratic voters, Voters based upon geography, 3rd party candidate voters, liberal voters, or other voting constituencies that a State could chose to disqualify from the franchise). He also wrote that only Congress could step in to prevent a State Legislature from abusing its power to both disqualify or dilute specific groups of citizens voting effectiveness.
· The Electoral College supports inequitable weight of voting impact - In Gray v. Sanders, 372 U.S. 368 (1963), the Court reviewed Georgia’s use of a “county unit” system in primary elections for the U.S. Senate and other statewide offices. Under this system, each county was allocated a number of “unit votes” depending on its population, and a candidate was required to win a majority of these unit votes to secure the nomination. The practical effect was to give greater weight to individual votes in the less populous counties. Thus, for example, the most populous county had about 14 percent of the state’s population, but it was allocated less than 2 percent of the county unit votes. In Harlan’s dissent, he pointed out that whatever the motives for the design of the Electoral College, it is certainly in the Constitution and is not based on the one person, one vote “conception of political equality.” Citing the 15th Amendment, 17th Amendment and 19th Amendment, Harlan wrote “guaranteeing the right to vote to all racial groups and to women and providing for the election of Senators “by the people,” implies nothing at all about the permissibility of weighting votes geographically. As in Baker v. Carr, he advanced his theory that an electoral scheme favoring rural counties easily passed the applicable rational basis test under the Equal Protection Clause, due to the construction of the Electoral College.
· The Equal Protection Clause cannot mean “one person, one vote” & unequal apportionment is precedent – In another important voting access case, Reynolds v. Sims, 377 U.S. 533 (1964) The Warren Majority used the 14th Amendment’s Equal Protection Clause to apply the one person, one vote rule on apportionment in state legislatures. Chief Justice Warren’s lengthy majority opinion reasoned that any restrictions on the right to vote “strike at the heart of representative government” and that dilution or debasement of the weight of a citizen’s vote is tantamount to a denial of the right. Harlan drove deeper into the Originalist Interpretive rabbit hole. Harlen first argued that the Warren Court was forcing separate sovereignties into one government (Federal takeover of Elections) by applying “substantial” equality and general considerations standards for the drawing of State Legislative districts like Federal Congressional Districts. Harlen then went back to the members of the 39th Congress, citing statements they made implying that the 14th Amendment (passed by the 39th Congress) would have no effect on the preexisting right of States to regulate voting or redistricting. Harlan’s then went to opine that Section 2 of the 14th Amendment provided a specific and limited remedy of abridging or denying the vote to its citizens and that to conclude that Section 1 of the 14th Amendment (Equal Protection Clause) forbids what Section 2 assumes is permissible would be absurd. Harlan cited the practice of unequal apportionment in 66% of the States that ratified the 14th Amendment, more than 50% of the readmitted States from the Confederacy had unequal apportionment as proof that States were immune from any claims under the Equal Protection Clause, the 15th and 19th Amendments. Conservative legal scholars love this pillar, believing it can’t be pierced through any Court decisions if this became the prevailing opinion of the Majority of the Supreme Court.
The Harlan Originalist Interpretive Doctrine underpins a significant part of the legislative, media, judicial, political and policy narrative of today’s modern Republican Party, both prior to the Trump takeover and since his takeover. This doctrine provides justification for treating citizens inequitably, disqualifying the votes of large segments of our citizen population through voter subversion and the racial, political and ideological gerrymandering driving the objectives of the Anti-Democracy/Anti-Voting Rights Expansion/Pro-Dictatorship sector of the Conservative movement, the White Majoritarian Supremacist Movement and the White Evangelical Gnostic Theocracy movement in America and aboard.
The dual lie of Election Integrity protection for Citizens only and that Voting Rights are already protected and unfettered for Citizens – Political & Communications Rationale
We face a dual reality in dealing with the restriction and disqualification of Pro-Democracy Non-Trump American Citizens. I’m using intentional language to address an intentional crisis. The Pro-Dictatorship movement that’s taken control of the “Republican” Party is clear in their objective, install a Trump Federal Dictatorship[20], both prevent Non-Trump citizens from voting and disqualifying their votes when we outvote their voters[21] and exact vengeance and hate-filled punishment on American Citizens who don’t pledge loyalty to their Dictator Trump[22], while keeping the pretense of elections and letting some Democratic and 3rd party officials serve as a minor opposition party, voter intent be damned. The actualization of this, starting with the Independent State Legislature Doctrine and the Harlan Originalist Interpretive Doctrine, the messaging strategy embodies the following steps:
1. Radical Trump Pro-Dictatorship former Republicans officials & supporters claim that only “legal citizens” should be able to vote and they support efforts only to prevent non-citizens from voting.
2. Voting rights are already a Constitutionally protected right, but just with States Rights jurisdiction to deliver the voting franchise to the Citizens they deem worth of voting and fully using right of assembly and speech through their vote. Just trust them that they won’t disqualify legally cast Democratic, Independent and 3rd party candidate voters (wink, wink).
3. Any effort to address and equalize voting access through Federal Statutory Laws is an Authoritarian Socialist takeover of States & an effort to silence Trump voters voices in the election process.
4. Democratic, 3rd party/Independent and non-Trump Pro-Democracy Republicans voters can’t be trusted with the majority vote, so we have to safeguard America from these Un-American Disloyal people. If a majority of voters legitimately vote for the Non-Trump endorsed candidate, then the election should be thrown out or overturned because the citizens were either paid, accepted “free socialist benefits” or are too ignorant to be trusted in their choice[23].
5. “Election Integrity” and “Voter Integrity” are necessary to prevent Democratic, 3rd party and Independent candidates from stealing elections and using fraud to win, regardless of the voting history of the electoral universe residing in the boundaries. No election won by Democratic candidates, 3rd party or independent candidates can be considered as valid and legitimate[24].
The wedding of the messaging point, built on two dubious justice interpretations, fear of the growing diversity of America, the increase in white Gnostic Christian Nationalism with the objective of creating a Caliphate style White Theocracy mandate, the believe that Americans who don’t believe in Trump’s vision and didn’t vote for Trump participated in criminal behavior via their voting choice[25] and the Trump/Pro-Dictatorship narrative of defining citizenship by voting choice for or against Trump[26] and classification of Non-Trump Americans as an Alien American or Non-American.[27]
To many in the Pro-Democracy camp see this evidence and still downplay the true intentions. From Senators Manchin, Sinema and Kelly in Congress to Virginia Gubernatorial candidate Terry McAuliffe to any Democratic, Non-Trump Republican, Independent & 3rd party elected officials who calls these people friends or colleagues, there’s an underestimating of the reality of how these agents of American Fascist Dictatorial movement plan to subvert the gaps in our Democracy & the actionable policies under the Independent State Legislature Doctrine & Originalist Interpretive Doctrine to enact this Un-American plan. The following is an example of the high-level strategy being used to statutorily disqualify Citizens from voting rights and claim they are for only Citizens having voting rights. This excerpt from the Claremont Institute, a leading Radical Trump Pro-Dictatorship Think Tank's March 24, 2021 “Conservatism” is no Longer Enough article.
Excerpt from “Conservatism” is no Longer Enough: “Let’s be blunt. The United States has become two nations occupying the same country. When pressed, or in private, many would now agree. Fewer are willing to take the next step and accept that most people living in the United States today—certainly more than half—are not Americans in any meaningful sense of the term......I’m really referring to the many native-born people—some of whose families have been here since the Mayflower—who may technically be citizens of the United States but are no longer (if they ever were) Americans. They do not believe in, live by, or even like the principles, traditions, and ideals that until recently defined America as a nation and as a people. It is not obvious what we should call these citizen-aliens, these non-American Americans; but they are something else.
What about those who do consider themselves Americans? By and large, I am referring to the 75 million people who voted in the last election against the senile figurehead of a party that stands for mob violence, ruthless censorship, and racial grievances, not to mention bureaucratic despotism”.
This declaration and a follow-up article (The Other Americans) by the Claremont Institute continued advocating this Citizenship test by voting choice concept. They want to qualify American Citizenship legitimacy based upon voting for Donald Trump (74,216,154 Trump voters). If you voted for President Biden (81,268,924 Americans voted for President Biden) or 3rd party candidates for President (the 2,888,967 Americans who voted for 3rd party candidates for President & 1,712,749 Americans who cast ballots but didn’t vote for a Presidential candidate), you're a Non-American or Alien American occupying entity. Same for the 65,844,954 Americans who voted for Hilary Clinton and 8,229,083 Americans who voted for 3rd party candidates for President in 2016. This qualification as an American Citizen only if you voted for Donald Trump is foundational through Donald Trump’s speeches[28], tweets[29] and rallies[30] from 2015 through 2022, that only his voters are “Real Americans”. These narratives are also interlaced in the public communications of the overwhelming majority of the Radical Trump Pro-Dictatorship elected officials and candidates for elective office (also known as Republicans).
It’s both dehumanizing and provides a predicate for using the Harlen Originalist Interpretive Doctrine to disqualify citizens from having the right to vote. Remember, in Wesberry v. Sanders, 376 U.S. 1 (1964), Harlen’s dissent was predicated under his interpretation of Article I, section 2, which he believed would permit the states to completely disqualify from the franchise any group of citizen voters that it chooses to disqualify. Scoff at this at your own peril. Currently, over 6 million American citizens are partially to permanently prohibited from voting due to their criminal felony status (only Maine, Vermont & the District of Columbia never disqualify felons from their voting rights)[31]. Geographical disqualification and access restrictions (methods, time period, registration process, transportation, disability status, Tribal nations, Citizen voter workforce purge files etc.) provide additional disqualifying tactics to reduce the Non-Trump voters and Trump voters who’ve defected from the Pro-Dictatorship voters camp.
Finally, when you merge the actions, ill-informed judicial opinions & the objective of supporting candidates for election related offices who commit to the Pro-Dictatorship/Big Lie/Voter nullification plan, it’s a logical outcome of these actions to add disqualifying Non-Trump American Citizens from registered voting rolls and invalidating their voting rights unless they pledge to vote for Trump and his Radical Trump Pro-Dictatorship candidates. This is the objective of 2022 and 2024 by Trump and his Pro-Dictatorship movement & will be the outcome for all Non-Trump Citizens.
Will the current package of voting right Bills (Freedom to Vote Act & John H. Lewis Voting Rights Act) be enough to protect Citizen Voting Rights or is there more to be done?
Mostly, in conjunction with other actions, but not because of what receives the majority of media coverage or Pro-Democracy advocates communication says. The underpinning of the Pro-Dictatorship movement is the disconnection between Constitutionally guaranteed rights of US Citizenship and the Citizen’s right to vote as a provisional grant of individual States. HR 5746, The NASA National Enhanced Use Leasing Extension Act of 2021 repurposed via parliamentary procedure to insert new text for the ‘Freedom to Vote: John R. Lewis Act[32]’’ sets a clear level of national/50 State & D.C. standards for voting rights, so that American Citizens won’t be treated differently via the State they reside in. What’s most important, is that the new combined Act (passed by the House of Representatives on 1/12/22) includes an updated version of the Right To Vote Act (pg. 286-295)[33], which was introduced separately on August 4, 2021 by Senators’ Ossoff, King, Padilla, Klobuchar & Warnock as S. 2615. The Right to Vote Act ensures and guarantees all actions necessary for American Citizens to participate in elections, including
1. registering to vote,
2. obtaining any ID required to vote,
3. casting a ballot, and
4. ensuring that ballot is counted without partisan (Radical Trump Pro-Dictatorship officials as Trump is demanding[34]) officials overthrowing the results.
These 10 pages in the overall act start in subsection (a) with the following: “Every citizen of legal voting age shall have the right to vote and have one’s vote counted in elections for Federal office free from any burden on the time, place, or manner of voting,” thereby codifying the right to vote as a right of US citizenship. Now subsection (a) could also add the following verbiage “and every Individual State, District and Territorial office” after Federal Office to further define the right to vote as a right of citizenship but as written, this is generational change to Constitutional Rights for American Citizens. It sets out two separate guaranteed Citizen rights: (1) the right to vote and (2) the right to have that vote counted. Formalizing the affirmative linkage of voting as a right of Citizenship is allowable under the following Constitutional sections and Judicial Precedents:
· The Necessary and Proper Clause of the Constitution (Art. I, Sec. 8 Clause 18)
· Privileges and Immunities Clause and Equal Protections Clause under the 14th Amendment
· City of Rome v. United States, No. 78-1840[35] the Court read the scope of Congress's remedial powers under Section 2 of the Fifteenth Amendment to parallel similar reasoning under Section 5 of the Fourteenth Amendment.
· Supreme Court Justice Stephen Field dissent in the Slaughterhouse Cases of 1873 - The Constitutional Revolution Interpretation, has the most far-reaching interpretations of the rest of 14th Amendment’s Section 1’s provisions. In the form Justice Field gave it in early post-Reconstruction decisions, the amendment protects all “the fundamental rights, privileges, and immunities which belong to [a person] as a freeman and free citizen” (Slaughterhouse). Thus, when Field’s reading of the privileges or immunities provisions was rejected by the court majority, he found the same protections to be contained in the Equal Protection and Due Process Clauses. The implications of this expansive view for the grant of legislative power to Congress in Section 5 are equally immense. Congress is seen to have more or less plenary power to act to protect the basic rights identified in the amendment.
The Right to Vote Act the first time, voters will have not just the right to vote, but a guaranteed, enforceable right to have their votes count. The new bill states plainly: “Every citizen of legal voting age shall have the right to vote and have one’s vote counted.” The bill defines that right as follows:
“…all actions necessary to have a vote included in the appropriate totals of votes cast with respect to candidates for public office for which votes are received in an election and reflected in the certified vote totals by any government responsible for tallying or certifying the results of elections for Federal office.”
The complete and utter opposition by the Radical Trump Pro-Dictatorship Republican party & the Non-Trump Appeasement Republicans is replete with purposeful lies and misleading statements. They imply that voting rights are protected for Citizens and additional actions by Congress are unnecessary. They will state that no State Legislature or Trump endorsed Secretary of State, Governor or Election related official will actually be able to substitute their will or Trump’s mandated will to overthrow an election result that they don’t accept. They will tell you that no efforts to restrict eligible citizens from voting, regardless of who they vote for, so there no need to standardize voting access across the country, it will open up opportunities for fraud or “takeover” State elections. Not one of these cited statements is true. To this day the language of the Constitution does not provide an affirmative, unassailable guarantee that all U.S. citizens of legal voting age will be able to vote. Instead, current federal constitutional protections for voting are framed in the negative—e.g., protection against denial of the right to vote based on certain characteristics, such as race, gender, and age. In 2022, America’s democracy and Citizens’ ability to register and cast a ballot that counts varies significantly, depending on which state they call home. This is the corruptible nature of America’s fragile governing experiment, it hinges on people relying on norms, customs and civil behavior vs. codified Statutory laws that requires all Citizens to be treated equally regarding their right to vote, regardless of the State, District or Territory they reside in.
Interestingly, our northern neighbor, Canada, has a Provision in their Charter of Rights and Freedoms (their version of our Constitution) that guarantees the right to vote as a right of citizenship (Section 3 – Democratic rights: 3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein)[36], but not the United States of America. Additionally interesting, the Right to Vote Act of 2021 & 15 similar bills[37] that have been introduced in Congress to affirm the Right to Vote as a Citizenship right since at least 1977, only H.J.Res.898 — 95th Congress (1977-1978) has ever had a Republican Co-Sponsor. Democrats, Independents, 3rd party officials and Non-Trump Anti-Appeasement Republicans must move this up in the public education and messaging strategy. They also need to challenge the “pro-citizen only voting” lies of the Radical Trump Pro-Dictatorship Republicans & their Media, because for 43 of the past 45 years, the Republican Party has resisted the actual legislative action to formally link voting to Citizenship. It’s impossible to be for “restoring Citizens confidence in voting” and fighting to prevent permanently linking voting to Citizenship.
In addition to the Right to Vote Act, the remainder of the Act has critical provisions that would make voting consistent for all Citizens in every State. Similar to other Constitutionally guaranteed rights that don’t change when you travel or move between the 50 States, District of Columbia and US Territories, these provisions (listed below) are required to ensure that all legal American Citizens have portable access to voting and that the administration of elections are not discriminatory (with commentary notes):
Freedom to Vote provisions - voting access (all legal American Citizens having equal access in their State of residence):
Election Day as a federal holiday.
Online, automatic, and same-day voter registration.
A minimum of 15 days of early voting, including during at least two weekends.
No-excuse mail voting with ample access to ballot drop boxes and online ballot tracking, in addition to streamlined election mail delivery by the US Postal Service.
States would need to accept a wide range of forms of non-photographic identification in places where ID is required to vote (expands the application nationally and functionality of voter ID).
Counting eligible votes on provisional ballots cast in the wrong precinct (pro legal citizen voting provision).
Restoring voting rights to formerly incarcerated people convicted of felonies (pro legal citizen voting provision).
Imposes stricter regulations on voter list maintenance that make it harder for states to remove eligible voters from the rolls (pro legal citizen voting provision).
More protections and resources to serve voters with disabilities and overseas/military voters (pro legal citizen voting provision).
Greater federal protections and oversight for voting in US territories.
Improving voter registration resources and outreach, in addition to reauthorizing and strengthening the US Election Assistance Commission.
Freedom to Vote provisions - election administration and redistricting:
Prohibits partisan gerrymandering by requiring states to use certain criteria when drawing new congressional districts (further codifies the Warren Court ruling in Baker v. Carr, the principle of one person one vote).
Requires states to use voter-verifiable paper ballots and conduct post-election audits (actual election auditing by non-affiliated parties).
Gives cybersecurity grants to states and directs the EAC to strengthen cybersecurity standards for voting equipment (addresses concerns raised by the Radical Trump movement’s election security lies).
Prohibits local election officials from being fired or removed without cause.
Makes interfering with voter registration a federal crime, and imposes stricter penalties against harassment, threats, and intimidation of election workers.
Restates chain of custody requirements protecting the integrity of ballots and election materials, a provision meant to combat unofficial partisan "audits."
Provisions from the John Lewis Voting Rights Advancement Act:
Reverses the Supreme Court's new "guideposts" and standards from the Brnovich decision that make it harder for plaintiffs to prove racial discrimination under Section 2 of the Voting Rights Act.
Enshrines judicial precedent and legislative history to strengthen efforts to draw majority-minority districts under the parameters of the Voting Rights Act.
Restores the federal preclearance regime that the Supreme Court struck down in Shelby. The bill creates a new coverage formula that requires states with recent histories of voting rights violations.
Takes aim at the federal courts by requiring judges to explain their reasoning in emergency rulings they take up on the so-called shadow docket and tries to limit judges' from relying solely on the proximity to the election in deciding emergency cases on election rules, known as the Purcell principle.
The Senate version of the law also includes the Election Worker and Polling Place Protection Act, which provides greater federal protections for election workers against harassment and intimidation (addresses concerns raised by the Radical Trump movement’s election poll watcher access lies).
The Senate version further tacks on the Native American Voting Rights Act, a bill that strengthens voting rights and voter protections for voters in Indian Country.
Additional Statutory changes that must be addressed include:
· Amending the Electoral Count Act (including State certification, Congressional Challenger & objection rules, Vice President roles and responsibilities and the State’s role in this procedural act.
· Amending the Watergate Era statutes to include more clearly defined criminal penalties for violations beyond the civil infractions (Budget Impoundment Act).
· Revise the H.R. 5314 – Protecting Our Democracy Act to institute criminal penalties to pair with the civil penalties added for the various violations of procedural norms by the Trump administration (the House passed version doesn’t add criminal penalties to areas of serious violation such as the Emoluments Clause, Department of Justice Interference, disobeying Congressional Subpoenas, Hatch Act violations, etc.. The Trump years have demonstrated that defined criminal penalties maybe the best deterrent in future administrations.).
· Codifying the ability to investigate, indict and enforce criminal and civil judgments on both the Sitting President, Vice President while in office and previous Presidents/Vice Presidents if they are found to have committed criminal or civil infractions including while in office.
· Restoring Congressional Inherent Contempt procedures and include the Capitol Police Department in the functionality chain of Contempt enforcement actions.
There will never be a perfect law, bill, resolution, appropriations Act, ordinance, Statute or Judicial precedent. We are at the most definitive point in our collective American story. If you watched the January 15, 2022 Donald Trump Radicalization & Indoctrination rally in Arizona, Trump and the speakers made the following points very clear:
1. Trump endorsed Secretary of State and Governor candidates State Sen. Mark Finchem & Kari Lake will only certify election results if Trump & his Pro-Dictatorship candidates win the popular vote & if they don’t win the majority of votes, they will overthrow the actual will of Arizona Citizens who chose Non-Trump candidates & install Trump Pro-Dictatorship candidates.
2. They collectively want to indict, jail and inflict worse punishment against elected officials, voters and others who aren’t supportive of their leader Trump and who he chooses to be on his team
3. They will never be a part of the traditional American Constitutional Republic; they only accept an America with Donald Trump & his chosen officials in control of the country.
4. They don’t consider American citizens who voted for President Biden, 3rd party candidates for President or voted but skipped the Presidential contest as fellow citizens and having the same right to vote for the candidates of their own choosing.
5. You must believe Trump’s election lies and his actions (including illegal and immoral) as gospel or you’re a traitor to the cause.
The response to this can’t be whataboutism (both political parties are the same), frustration that the Democratic party hasn’t passed every law to fight against this Pro-Dictatorship movement, that these words and related policies undertaken by the Trump Pro-Dictatorship movement aren’t really that bad or think you will send a message to the Pro-Democracy elected officials by skipping the next election. You can’t. There’s no time to be frustrated, no time to believe that both parties are the same or the Radical Trump Pro-Dictatorship movement is just talking and won’t implement what they are advocating for. The threat is real and requires long-term thinking and commitment. This is the most important step in the fight, the hill where we must make our stand. Codifying voting as a right of Citizenship provides the strongest buffer to the Pro-Dictatorship movement. Fixing the flawed judicial decisions, ambiguity of verbiage in our Constitution and resisting the desire to dismiss the Anti-Democracy desires of fellow Americans is bolstered by forging the permanent linkage of Citizenship and Voting as a right of Citizenship. This is the most worthwhile fight and must be rallied to by all Americans who believe in our Constitutional Republic with the Representative Democracy form of Government we share. Ensuring that Citizenship affords the same rights for both Pro-Democracy, Pro-Dictatorship and I don’t care American Citizens requires fixing this mortal wound to our Country, the wound that has been open and untreated since the 1787 Constitutional Convention and adoption of our Constitution. Voting must be a Statutorily and Constitutionally guaranteed right of Citizenship, not a second class right provided for by individual States.
[1] The right to vote is not in the Constitution August 26, 2020
After the Civil War, the 15th Amendment, ratified in 1870, guaranteed that the right to vote would not be denied on account of race: If some white people could vote, so could similarly qualified nonwhite people. But that still didn’t recognize a right to vote – only the right of equal treatment. Similarly, the 19th Amendment, now 100 years old, banned voting discrimination on the basis of sex, but did not recognize an inherent right to vote. https://theconversation.com/the-right-to-vote-is-not-in-the-constitution-144531
[2] Jonathan Soros, “The Missing Right: A Constitutional Right to Vote,” Democracy, A Journal of Ideas, Spring 2013, No. 28, https://democracyjournal.org/magazine/28/the-missing-right-aconstitutional-right-to-vote/
[3] Citizenship is guaranteed to all male persons born or naturalized in the United States by the Fourteenth Amendment to the United States Constitution - Section 1 - All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
[4] Section 2 - Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
[5] Elk v. Wilkins - 112 U.S. 94, 5 S. Ct. 41 (1884); Minor v. Happersett - 88 U.S. (21 Wall.) 162 (1874)
[6] Minor v. Happersett - 88 U.S. (21 Wall.) 162 (1874); United States v. Reese, 92 U.S. 214 (1876) & McPherson v. Blacker, 146 U.S. 1 (1892)
[7] United States v. Reese, 92 U.S. 214 (1876); Bush v. Gore, 531 U.S. 98 (2000); Minor v. Happersett - 88 U.S. (21 Wall.) 162 (1874); Elk v. Wilkins - 112 U.S. 94, 5 S. Ct. 41 (1884), McPherson v. Blacker, 146 U.S. 1 (1892); San Antonio Independent School District v. Rodriguez, 411 U.S. 1. (1973)
[8] Bush v. Gore, 531 U.S. 98 (2000); McPherson v. Blacker, 146 U.S. 1, 35 (1892); Minor v. Happersett - 88 U.S. (21 Wall.) 162 (1874)
[9] Civil Rights Cases, 109 U.S. 3 (1883).; City of Boerne v. Flores, 521 U.S. 507 (1997); Slaughterhouse Cases, 83 U.S. 36 (1873); United States v. Harris, 106 U.S. 629 (1883); United States V. Morrison (99-5) 169 F.3d 820; Washington v. Davis, 426 U.S. 229 (1976)
[10] City of Boerne v. Flores, 521 U.S. 507 (1997); Civil Rights Cases, 109 U.S. 3 (1883); United States v. Cruikshank, 92 U.S. 542 (1876); Elk v. Wilkins - 112 U.S. 94, 5 S. Ct. 41 (1884); United States v. Harris, 106 U.S. 629 (1883)
[11] Bush v. Gore, 531 U.S. 98 (2000); Shelby County v. Holder, 570 U.S. 529 (2013) & McPherson v. Blacker, 146 U.S. 1 (1892)
[12] Justice John Marshall Harlan II Originalist Interpretive Doctrine in "Reynolds v. Sims." Oyez, www.oyez.org/cases/1963/23. Accessed 9 Jan. 2022; "Wesberry v. Sanders." Oyez, www.oyez.org/cases/1963/22. Accessed 9 Jan. 2022 & GRAY v. SANDERS(1963) https://caselaw.findlaw.com/us-supreme-court/372/368.html
[13] Smith, Hayward, Revisiting the History of the Independent State Legislature Doctrine (September 13, 2021). 53 St. Mary's L.J. (2022, Forthcoming) , Available at SSRN: https://ssrn.com/abstract=3923205 or http://dx.doi.org/10.2139/ssrn.3923205
[14] World’s Autocrats Face Rising Resistance, https://www.hrw.org/world-report/2019/country-chapters/global; Dictatorship Countries 2021 https://worldpopulationreview.com/country-rankings/dictatorship-countries; Attacks on Democracy Intensify as Autocracy Spreads in Europe and Eurasia https://freedomhouse.org/article/new-report-attacks-democracy-intensify-autocracy-spreads-europe-and-eurasia
[15] Although the United States Supreme Court has yet to cite Bush v Gore, the balance of the judicial structure has not been so reticent to embrace the case. By March of 2011, federal courts had cited Bush v Gore 152 times and a host of state courts had cited it 111 times - The Cites That Counted: A Decade of Bush v Gore Jurisprudence - Bush v Gore, 10 Years Later: Election Administration in the United States - April 16-17, 2011
[16] John Eastman Memo http://cdn.cnn.com/cnn/2021/images/09/21/privileged.and.confidential.--.jan.3.memo.on.jan.6.scenario.pdf & Jenna Ellis 12/31/20 memo https://www.politico.com/f/?id=0000017d-a4d0-dac5-abff-a5ddcf600000
[17] https://ballotpedia.org/Changes_to_election_dates,_procedures,_and_administration_in_response_to_the_coronavirus_(COVID-19)_pandemic,_2020; https://www.ncsl.org/research/elections-and-campaigns/absentee-and-mail-voting-policies-in-effect-for-the-2020-election.aspx
[18] https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-2020-0
[19]John M. Harlan II Oyez - https://www.oyez.org/justices/john_m_harlan2
[20] 10 Ways Trump Is Becoming a Dictator, Election Edition
https://foreignpolicy.com/2020/09/08/10-ways-trump-is-becoming-a-dictator-election-edition/; Why the Trumpists’ Calls for Dictatorship Should Worry Us https://www.thenation.com/article/politics/trump-coup-dictatorship-fascism/
[21] How Trump-backed secretary of state candidates would change elections in the United States https://www.washingtonpost.com/politics/2021/12/01/how-trump-backed-secretary-state-candidates-would-change-elections-america/; Trump loyalists form alliance in bid to take over election process in key states - ‘Coalition of America First secretary of state candidates’ disclosed by Jim Marchant, who is running for secretary of state in Nevada https://www.theguardian.com/us-news/2022/jan/13/trump-loyalists-secretary-of-state-candidates
[22] Trump’s out-of-power agenda: Retribution against foes, commanding the spotlight and total domination of GOP
[23] Donald Trump Says All the States That Voted for Him Had No Election Fraud 4/19/21
https://www.newsweek.com/donald-trump-says-all-states-that-voted-him-had-no-election-fraud-1584865
[24] Another losing Republican candidate embraces election denialism, https://www.msnbc.com/rachel-maddow-show/another-losing-republican-candidate-embraces-election-denialism-n1287423
Loren Culp, refusing to concede Washington gubernatorial race, turns on top Republicans
Updated Nov. 22, 2020 at 7:29 am - https://www.seattletimes.com/seattle-news/politics/loren-culp-refusing-to-concede-washington-gubernatorial-race-turns-on-top-republicans/
[25] Arizona Election Audit Could lead to Executions if OAN gets it’s way & OANN Executions Conspiracy Theory QAnon
https://www.azcentral.com/story/opinion/op-ed/laurieroberts/2021/06/24/arizona-election-audit-could-lead-executions-if-oan-gets-way/7778274002/ & https://www.independent.co.uk/news/world/americas/us-politics/oan-executions-conspiracy-theory-qanon-b1872104.html
[26] “Conservatism” is no Longer Enough
[27] The Other Americans https://americanmind.org/salvo/the-other-americans/
I described this second group as “non-Americans,” insofar as they don’t subscribe to the original understanding of the Constitution, or the principles of republicanism articulated by the founding fathers.
[28] Donald Trump Speech and Interview Transcripts https://factba.se/trump/transcripts/
[29] The Complete List of Trump’s Twitter Insults 2015-2021 The Complete List of Trump’s Twitter Insults (2015-2021) - The New York Times (nytimes.com)
[30] Donald Trump Speech transcripts Post White House & time in White House https://www.rev.com/blog/transcript-category/donald-trump-transcripts
[31] https://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx
[32] JANUARY 12, 2022 - Rules Committee Print 117–28 Text Of The House Amendment To The Senate Amendment To H.R. 5746 [Showing the text of the Freedom to Vote: John R. Lewis Act] https://rules.house.gov/sites/democrats.rules.house.gov/files/BILLS-117HR5746EAS-RCP117-28.pdf
[33] H.R. 5746 Subtitle E—Judicial Protection of the Right to Vote and Non-partisan Vote Tabulation Part 1—Right To Vote Act & S. 2615 the ‘‘Right to Vote Act’’ August 4, 2021, https://www.congress.gov/117/bills/s2615/BILLS-117s2615is.pdf
[34] Trump's First 2022 Rally Pushes Allies Who Could Help Him Steal the White House - https://www.motherjones.com/mojo-wire/2022/01/trump-florence-arizona/; MAGA hats and QAnon: Inside Trump’s first rally of 2022 - https://www.politico.com/news/2022/01/16/trump-first-rally-2022-maga-527206; Trump's Next Coup Has Already Begun - The Atlantic - https://www.theatlantic.com/magazine/archive/2022/01/january-6-insurrection-trump-coup-2024-election/620843/
[35] https://caselaw.findlaw.com/us-supreme-court/446/156.html
[36] https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art3.html#:~:text=Provision,be%20qualified%20for%20membership%20therein.
[37] https://www.congress.gov/search?q=%7B%22source%22%3A%22legislation%22%2C%22search%22%3A%22Right+to+Vote%22%2C%22subject%22%3A%22Government+Operations+and+Politics%22%7D&pageSize=250&page=1
Agreement for Non-Violence in Campaigning
Candidate Agreement for Positive Campaigns
Discussed on Martin Luther King Jr’s Remembrance for Non Violence in Civic, Political and Social Action. In conduction with the Democracy Resilience Project, sponsored in part by Leo Smith’s work with Engaged Futures, and the Carter Center.
Candidate Agreement for Non-Violence in Campaigning (Not for Distribution / AWV and Engaged Futures Members access only. This project is in development with multiple institutional partners. For more information or to request permission to use, please contact us.)
(Draft under development.)
I respect the checks and balances defined in the United States Constitution and I support the electoral processes that protect the freedoms, liberties, and opportunities that are assured by our democratic institutions and norms. Most critically, elections must be conducted according to the rule of law – in a transparent, unbiased and secure process – leading to a peaceful transfer of power absent of intimidation or violence.
Link to Google Doc Collaborative Work Session
https://docs.google.com/document/d/1t6cbpvp2ShsvVW8kiZPrPAd3KrnGEcyssvFnrCIgIiw/edit?usp=sharing