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Heidi Heitkamp and some scary Daywalker without soul. (Photo by Chip Somodevilla / Getty Images)
A advantage I hope that Brett Kavanaugh's experience is to start talking honestly about the Supreme Court. The mask of the court as "a simple call for bullets and strikes" was torn. We must not pretend that these people do not have the political results they prefer.
The conservative majority, its favorite political outcome, is that Republicans win the election. They know that Republicans can not win the election if everyone votes. The GOP is a minority party in decline. They can not go to the polls unless the votes of the majority of Americans are removed or reduced in one way or another.
The electoral college makes the essential part of this work at the national level. Gerrymandering does much of the work at the local and congressional level. But Senate races are difficult. State-wide elections can overcome local distortions without the soothing effects of political apartheid represented by the constituency.
Enter the voter identification laws. Voter identification requirements are a good way to remove votes from non-whites during statewide elections. For a variety of reasons, many of them, non-white voters, are less likely to have the specific identification requirements devised by the Crusaders, and they are less likely to have the time to get the good ID before polling day. Of course, some poor white voters are also caught in this vortex. But the goal of the GOP is that fewer people vote. Whether they use an ax or a scalpel, fewer eligible voters are better for the GOP.
If you understand the political objectives of the Supreme Court, you can understand the decision of the Court in Brakebill v. North Dakota. Yesterday, the Court refused to intervene to prevent the entry into force of voter identification laws for voters in North Dakota. This November 6th, people traveling to North Dakota will be required to present a piece of identification that also includes their address.
The law is specifically designed to deprive aboriginal American voters of their rights. Some forms of tribal identity do not have a postal address. They could, but they do not. North Dakota could have ensured that this law comes into force in the coming years, after all the agencies that issue an ID know they have to put an address on the document. But that was not the case. He wanted this law for this election as the Republicans in North Dakota tried to overthrow Heidi Heitkamp, a democrat essential to help the Republicans retain the Senate.
This is a very obvious political ploy, and following SCOTUS is a very obvious example from the Supreme Court of choosing political winners (and losers) as opposed to allegiance to the law. The Supreme Court could easily have suspended the implementation. this law until after the elections, leaving enough time for debate and giving tribal agencies enough time to implement new policies if necessary. They did not do it because the conservative majority wants Heitkamp to lose. We no longer have to pretend that their decision was based on jurisprudence other than "all that helps Republicans win".
Brett Kavanaugh himself did not participate in the decision, but his specter weighed on the decision. It was a simple refusal to suspend the decision of a lower court and to enforce the law on the identity of voters. Judges were not required to explain their reasoning. Judge Ruth Bader Ginsburg wrote a short dissent, which was joined by Judge Elena Kagan.
Judges Sonia Sotomayor and Stephen Breyer joined the Republicans in making the 6-2 decision. Why? We can only speculate, but here are some things to consider:
A. A decision 4-4 would have left the decision of the lower court in place. As long as the four non-Kavanaugh Conservatives pledged to help Heitkamp's Republican challenger, Kevin Cramer, the progressives of the court could do nothing to stop him anyway.
B. Strategic voting is something that we see more and more in the progressives, since Sandra Day O'Connor has been replaced from time to time by Samuel Alito's incredible hardcore partisan style. A 4-4 case could have inspired a new argument from the Conservatives once Kavanaugh was ready to move on. And an election identity decision of 5 or 4, whether written by Kavanaugh or one of the others, could have torpedo the challenges in voter identity across the country. Progressives will have time to take a stand against voter identity laws for the last time, but that was not the case here.
C. It is dangerous to make precedence decisions based on North Dakota voting laws. North Dakota, as I recently learned, is strange with its voting laws. There is no voter registration in North Dakota! Which is great, but also deeply strange. Voters can simply show up on polling day, give their addresses to find out which constituency they are in and vote for. Thus, while a law of proof of address in North Dakota is an attack on the Amerindian population of that state, its function is clearly different from that of a proof of law on address in New York, where you must be pre-registered with your address anyway in order to vote.
If Merrick Garland had appeared in court in place of Neil Gorsuch, it is likely that Breyer and Sotomayor would have aligned themselves and would have invalidated this North Dakota law. And I say that not because I do not know anything about Merrick Garland's views on the state's voter identity laws, but because Merrick Garland was supposed to be as partisan as Neil Gorsuch, in the opposite direction . I have no doubt that had there been a change in the electoral law that would have helped Heitkamp, the progressives and the Conservatives would have changed sides, and Heitkamp would have always been screwed up by the Conservative majority.
If Heitkamp loses (and she might not do it, again, voting in North Dakota is weird!), Many people will point his vote "no" on Brett Kavanaugh. Republicans will push this talk, because Republicans are invested in making Democrats afraid to defend what they believe in.
I will not buy what they sell. If Heitkamp loses, it will be largely because the Supreme Court controlled she has. The Supreme Court preferred the political results. It is time to stop pretending that they do not do it.
Brakebill c. North Dakota (dissenting)
Elie Mystal is the editor-in-chief of Above the Law and the legal editor of More Perfect. It can be reached @ElieNYC on Twitter or at [email protected]. He will resist.
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