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What Congress can do with Trump’s tax returns
Nathan Posner/Anadolu Agency via Getty Images The public isn’t likely to get its hands on the documents any time soon. After three contentious years, the Congressional Ways and Means Committee can finally get its hands on former President Donald Trump’s tax returns. But whether the Committee will release that information to the public is yet to be seen. Trump’s tax returns should have been public information since his nomination in 2016. Now that Congress has access to the documents, the appropriate committees can determine whether he committed any financial indiscretions and whether the IRS dealt with it properly. But it also opens the door for the public and the media to scrutinize those documents, which could tell us about the nature of his finances, whether he has exploited tax loopholes or committed financial crimes, and his financial links to powerful people and other governments while he was in office. Trump has long sought to keep his returns under wraps, but a Supreme Court decision handed down in November means that the committee can access them, despite his strenuous efforts to keep them private. Some of Trump’s tax documents are already public information, via a 2020 New York Times report. That reporting showed his manipulation of the tax system and his financial reporting in order to pay minimal taxes — or in many cases, nothing at all. The documents the committee can now access include six years of the former president’s tax returns, from both his business and personal filings and covering much of his time in the White House, according to CNN. Trump fought to keep his returns private since the committee Chairman Richard Neal (D-MA) requested them in April 2019. The Treasury Department initially denied the request, setting off a years-long court battle. But it’s not necessarily the committee’s goal to air Trump’s finances in broad daylight — they ostensibly want the information to assess the IRS’ presidential audit procedure, something that all presidents and vice presidents undergo yearly while they’re in office. The Treasury Department, which oversees the IRS, told CNN last week that it was complying with the court’s order to hand the documents over to the committee. Though the committee met Thursday to discuss what it would do with the documents, Neal told reporters the same day that he wouldn’t comment on whether he had seen them or what exactly the committee planned to do, Roll Call reported Thursday. “It’s very sensitive information,” he said at the time. “We intend to deal with it professionally.” What is a presidential audit, and why is the Ways and Means Committee looking into it? It’s unclear exactly why Trump has gone to such lengths to shield his tax records. But even though his recent tax records have been released, they might not satisfy the people asking that question — both because it’s not the one the Ways and Means Committee set out to answer, and because the records might not be made public. Given how long it took for the committee to access the records, the committee won’t be able to conduct a thorough assessment of the records before Republicans take over leadership of both the House and the committee in January. “The thing that interests me the most about the Ways and Means procurement of the returns is what it will tell about the IRS audit of those returns,” Keith Fogg, an emeritus professor at Harvard Law School, told Vox via email. “Are the audits complete now? How much did he owe if anything? Did he pay it? What special steps did the IRS take to audit the returns of a candidate/President?” Trump refused to release his tax returns during the 2016 campaign, saying he was “under audit” and would make them public when that process was complete. A 2020 New York Times investigation showed that he had been in a decade-long battle over a $72.9 million refund he received on his 2010 tax return. “I suspect that the NY Times gave us most of the information about his returns and the new data will just confirm what was already made public,” Fogg said. The committee’s request has to do with the process of examining Trump’s tax records while he was president, rather than the information they contain. “The president’s and vice president’s returns are audited every year regardless of whether they raise red flags that might cause another taxpayer to be audited,” Daniel Hemel, a professor at New York University School of Law told Vox via email. The procedure for auditing those returns is unique to those records, as laid out in the Internal Revenue Manual. They’re supposed to receive a prompt and thorough examination under careful security measures. “One reason for the House Ways & Means Committee inquiry is to learn how — in practice — those audits differ from audits of other returns,” Hemel said. The other question the documents could answer is, as Hemel told Vox, whether the IRS dealt with any red flags appropriately. “By reviewing the returns itself, a congressional committee could learn whether there are any suspicious items that, in a normal audit, would warrant follow-up,” he said. “And then the committee could investigate whether the IRS actually did follow up on those items and to what effect.” Depending on the results of the review, Congress could change the process via legislation. How might the documents become public? Despite the public’s legitimate interest in Trump’s tax returns, there’s still a shroud of secrecy around them. They’re sensitive private documents, even if they belong to a public figure and former politician, and they must be treated that way, as the Internal Revenue Manual dictates. Legally, the IRS has to furnish returns to the Ways and Means Committee, the Senate Finance Committee, or the Joint Committee on Taxation upon written request from the committee chair, but that doesn’t give those bodies carte blanche to make them public. But what those three committees can do, Hemel pointed out in a piece for Lawfare, is submit the documents in legislation or a report to the full House or Senate, or both, at any time, putting that information into the public record. There are political reasons for the House committee to keep the documents private now. First of all, it would be a bait-and-switch to make them public; Neal stated multiple times since he requested the information in 2019 that the committee’s sole intent was to examine the presidential audit procedure — not to release it for political purposes or to embarrass Trump. Given that the Committee probably won’t (or, at least, probably shouldn’t, as Hemel argues) release the documents to Congress, and won’t finish a thorough examination of the presidential audit process before January 3 when Republicans gain leadership of the committee, there are still ways Congress could carry out the review of the audit procedures — and alsoeventually release — Trump’s tax documents. Now that the highest court has decided Trump cannot block Congressional committees from obtaining his returns and requested materials, the Senate Finance Committee, which will remain in Democratic control, could step in and request the documents, carrying out its own assessment of the presidential audit process. That, Hemel said, could motivate Congress to make legislative changes to the process if necessary — or “make a referral to the Justice Department for prosecution if the facts warranted.” From there, the committee could release the documents to the full Senate, by making such a referral or designating another legitimate reason to do so. Given the scope of the Ways and Means Committee’s reasoning for requesting Trump’s tax returns, the public likely won’t see those documents any time soon. But that doesn’t mean we shouldn’t — or that we never will.
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World leaders have 2 weeks to agree on a plan to save nature
A green sea turtle swimming off the coast of Western Australia. | Getty Images At COP15 in Montreal, officials will try to hash out a deal to protect animals and ecosystems. It won’t be easy. One of the most important events for life on Earth, ever, is about to begin. This week and next, delegates from more than 190 countries will come together in Montreal, Canada, for a conference known as COP15, or the UN Biodiversity Conference, to hash out a plan to halt the decline of ecosystems, wildlife, and the life-supporting services they provide. If the term “COP” sounds familiar, that’s because there was another UN conference last month called COP27. But these two events are very different. COP27 was about climate change — a conference of countries “party” to the UN’s major climate pact. COP15 will bring together nations party to another major treaty called the Convention on Biological Diversity. I know this is a lot of jargon, but these agreements are worth knowing about. They’re arguably the most important tools the world has to protect the planet and, in the case of the biodiversity conference, underappreciated. Many experts call COP15 the last chance to reverse the decline of nature. “Our planet is in crisis,” Elizabeth Maruma Mrema, executive secretary of the Convention on Biological Diversity, said in a press conference earlier this month. More than a million species are threatened with extinction, she said, and populations of most major animal groups have declined by an average of 69 percent. “Clearly, the world is crying out for change,” she said. During COP15, which starts Wednesday, negotiators are expected to finalize and sign a document called the Post-2020 Global Biodiversity Framework. You can think of it as the Paris Agreement but for biodiversity — a strategy with nearly two dozen measurable targets designed to conserve ecosystems and the benefits they provide, such as food and plant-derived medicines. One of the splashiest and most contested targets is a commitment to conserve at least 30 percent of Earth’s land and water by 2030. It’s known as 30 by 30. The agreement also addresses what is perhaps the most hotly debated topic: Who will pay for all of this?This is especially relevant for poorer nations and Indigenous communities, which harbor most of the world’s remaining biodiversity. Finalizing the biodiversity framework at COP15 will be tough. There’s a noticeable rift between rich and poor nations, which could stall the talks. No heads of state are attending as of yet, other than Canadian Prime Minister Justin Trudeau. Negotiators, who have to agree on specific terms, are already exhausted from COP27. Meanwhile, the World Cup is drawing attention elsewhere. But if and when the framework is signed, it will be a huge moment for conservation — and it could help stave off an apocalyptic-like future, where even our most basic needs like clean water and food are hard to meet. Here’s what to expect in the coming days. The Convention on Biological Diversity, briefly explained The UN oversees hundreds of global treaties on everything from human rights to outer space. They’re essentially contracts between a bunch of countries that stipulate how they should behave, and they’re legally binding. One of them is the UN Framework Convention on Climate Change (UNFCCC) — that’s what sprouted the Paris Agreement and the goal to keep global warming below 1.5 degrees Celsius. A related treaty is the Convention on Biological Diversity (CBD), which dates back to the early 90s. It lays out three primary goals: To conserve biodiversity, which includes species, ecosystems, and genetic diversity. To use its components, like wild animals, in a sustainable way. And to share the various benefits of genetic resources fairly. Those resources might include medicines derived from bacteria or genes that produce desirable traits in crops, such as drought tolerance. Parties to the CBD typically meet every two years at events known as the Conference of the Parties, or COP, to check in on progress and update the terms of the contract. That’s what’s happening this week in Montreal (COP15 was supposed to begin in 2020, but it got delayed several times due to Covid; the first part of the event took place last year in Kunming, China). Every country in the world is a party to CBD except the Holy See (a.k.a. the Vatican) — and the United States. Why? The gist is this: In the US, treaties need to be ratified in the Senate by a two-thirds majority, and conservative lawmakers worry that joining global agreements puts American sovereignty at risk. (In the case of CBD, it doesn’t.) That said, the US will still have a large presence at COP15. Although it can’t formally vote on language in the framework, it will still send a delegation to Montreal and ultimately help shape the outcome, given the sheer size of its economy and abundance of wildlife. Chen Yehua/Xinhua via Getty Images A performance at the opening ceremony of COP15 in Kunming, China, on October 14, 2021. Unlike the big climate COPs, heads of state usually don’t show up at CBD conferences, which environmentalists decry. “This is a very concerning situation considering this critical conference seeks to agree on a pathway to curb the collapse of our entire planetary life support system,” Campaign for Nature, an environmental group advocating for 30 by 30, said in a statement last month. “Having government leaders there is essential to elevate this crisis to the level it deserves.” One reason why their attendance is so important, the campaign says, is it signals to investors and shareholders that countries are united in the effort to protect the planet. But COP15 is still drawing more attention and attendees than, perhaps, any other UN biodiversity event before, said Brian O’Donnell, who leads the Campaign for Nature. More than 10,000 delegates have already registered, according to CBD. “This is going to be a much bigger deal than we’ve ever seen,” O’Donnell said, compared to other biodiversity COPs. “The amount of participants is bigger, the amount of media attention is bigger, the stakes are higher.” What COP15 aims to achieve Averting the worst effects of climate change is, in a sense, pretty simple: Keep warming below 1.5°C by limiting the emission of greenhouse gases. Protecting the integrity of ecosystems, however, is a bit more complicated — as is what countries will try to accomplish in Montreal. A major goal of theirs is to figure out how to protect remaining natural environments, restore those that are damaged, and get corporations to stop further destruction. Simple, right? You won’t hear as much chatter about “net-zero emissions” in Montreal as terms like “nature-positive” — a buzzword typically referring to a future with moreintact ecosystems, compared to today — and “nature-based solutions.” Monica Schipper/Getty Images for WWF International Canada’s Prime Minister Justin Trudeau speaks during an event at Central Park Zoo in New York City ahead of the COP15 conference, on September 20, 2022. So, what’s the plan? The biggest to-do at COP15 is for countries to agree on a number of targets that they can achieve by 2030. That’s what’s in the biodiversity framework, which experts have been working on for a few years now. There are currently 22 of them, but that number could change. The targets cover a lot of territory and are pretty specific. Target 2, for example, calls on countries to restore 20 or 30 percent of degraded lands and waters, target 3 proposes conserving at least 30 percent of the planet (such as by limiting development and other harmful activities), and target 7 suggests cutting the use of pesticides or the risks of them by half or two-thirds. There are also targets related to invasive species, harmful subsidies, plastic waste, and the role of businesses in preventing biodiversity loss. (You can find a complete list of targets starting on page 20 here, though, again, keep in mind it’s still a draft.) In addition to hashing out the framework, negotiators at COP15 will also devise — and this is key — a mechanism to measure progress toward those targets. It’s easier to do for some than for others. For target 3, for example, about conserving at least 30 percent of the Earth, there are already databases of protected areas, showing how much land is formally conserved (though even this measuring tool has some issues). If this all sounds like ... a lot, that’s because it is. And COP15 is less than two weeks long, so it will be a race to finish. Many experts suspect it could go into overtime. The major sticking points Today, the biodiversity framework — the key document of COP15 — is very much just a draft. The text has roughly 1,800 brackets surrounding phrasing that delegates don’t agree on, making it hard to even read. “The draft is not in good shape,” said Elsa Tsioumani, an international lawyer, during a COP15 press conference hosted last week by the Earth Negotiations Bulletin. “There’s so much cleaning to be done.” Just two of the targets are mostly finalized, she said: one about restoring and conserving nature in cities and another about sharing advances in technology and information. Many more remain controversial. One such target is 30 by 30, or target 3. Some Indigenous people and local communities worry that efforts to conserve more land could impinge on their rights, according to Viviana Figueroa, a legal expert at the International Indigenous Forum on Biodiversity. These concerns are rooted in a very real and dark history: Western environmentalists once thought of “conserved” nature as something pristine and devoid of human life, and they used that thinking to expel Indigenous people from their land. In reality, Indigenous people are the most effective stewards of the planet’s ecosystems. “We want recognition of what we are doing — what we have been doing for millennia,” Figueroa said, of Indigenous conservation. The agreement will likely acknowledge the importance of Indigenous tribes and their rights, environmental advocates told me. But it’s not clear if their lands will “count” toward reaching the 30 by 30 target, partly because there’s still no universal understanding of what “conserved” means. (There’s a whole other debate about whether 30 percent is enough to protect the integrity of ecosystems, which I delve into here.) Tension also surrounds funding for conservation and the phase-down of subsidies. Developing countries have called on richer nations to put at least $100 billion a year into a fund for poorer countries, but “we’re nowhere near that right now,” O’Donnell said of funding. Existing pledges for biodiversity financing total about $6.6 billion a year. (This debate echoes similar conversations at COP27.) There’s also an ongoing debate about who should be administering the money, according to Helen Tugendhat, a program coordinator at the nonprofit Forest Peoples Programme. Beyond that, delegates are also somewhat stuck on targets 2 (restoration), 7 (pollution), 10 (agriculture reform), and 15 (the role of corporations), experts say. “Almost all targets still have multiple brackets and multiple options,” said Guido Broekhoven, who leads policy, research, and development at WWF International. “It’s really difficult to see how these will be played out.” Getty Images A great gray owl. So, can COP15 actually do anything? First, the bad news: The Convention on Biological Diversity doesn’t have a great track record. More than a decade ago, its member countries agreed to a similar but much vaguer set of 20 targets — known as the Aichi Biodiversity Targets — to protect ecosystems by 2020. They included things like reducing impacts on coral reefs and preventing the extinction of threatened species. Yet the world didn’t meet a single one of them. So what will make these new targets different? They’re certainly no less ambitious. These targets need to be more specific and measurable, Marco Lambertini, director general of WWF International, said at a press conference last week. “This is a key element that we’re really advocating for in the new GBF,” he said. In other words, countries need to have clear goals and a way to track their progress against them — so, not just “make farming more environmentally friendly” but “reduce X farming chemicals by X amount,” and so on. Countries will also need to agree on a rigorous approach to monitoring progress toward the framework’s targets. Broekhoven of WWF suggests that, after four years, for example, nations should review their progress and then potentially make even bigger commitments, following the monitoring framework of the Paris Agreement. But perhaps the biggest reason to think that this time will be different is that people — world leaders, business executives, and the general public — are paying more attention to what’s happening to nature, to the erosion of ecosystems, than ever before. “Nature has never been higher on the political or corporate agenda,” Lambertini said. That means more eyes are watching and there will be more accountability. “We already have lost half of the forests, half of the coral reefs, 80 percent of the wetlands,” Lambertini said. “All this will only get worse unless we change the way we live, produce, and consume — in other words, unless we rebalance our relationship with nature. Failure in Montreal is not an option.”
The deranged Supreme Court case that threatens US democracy, explained
People gather in front of the US Supreme Court in June 2019 after a decision opening the floodgates to partisan gerrymandering. | Mark Wilson/Getty Images Moore v. Harper is a test of whether this Supreme Court can ever be trusted with power. The opening brief in Moore v. Harper, an extraordinarily high-stakes election case that the Supreme Court will hear December 7, is one of the least persuasive documents that I’ve ever read in any context. And I’ve read both Ayn Rand’s Atlas Shrugged, and Donald Trump’s Art of the Deal. Moore is also potentially the biggest threat to free and fair elections in the United States to reach the Supreme Court in my lifetime — and I was alive for Bush v. Gore. Four justices have endorsed the utterly nonsensical legal theory underlying Moore, which means that, unless one of those four has second thoughts, the future of US elections will be decided by Trump-appointed Justice Amy Coney Barrett. To be fair, enough conservative elites have now denounced this lawsuit that there is a real chance some of their ideological allies on the Court will have second thoughts. But the fact that any judge might embrace this nonsensical legal theory is absurd. The case involves the awkwardly named “independent state legislature doctrine” (ISLD), a theory that the Supreme Court rejected many times over the course of more than a century. It’s also a theory repudiated by many of the very same sources that the ISLD proponents rely upon in their briefs to the justices. Under the strongest form of this doctrine, members of each state’s legislative branch have unchecked authority to decide how elections for Congress and the presidency will be conducted in their state — indeed, a state legislature could potentially pass a law canceling the presidential election in that state and awarding its electoral votes to Donald Trump. Any state constitutional provisions that protect the right to vote, that limit gerrymandering, or that otherwise constrain lawmakers’ ability to skew elections would cease to function. State governors would lose their ability to veto laws impacting federal elections. And state courts would lose their authority to strike down these laws. As Justice Neil Gorsuch wrote in a 2020 concurring opinion endorsing the ISLD, “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.” Notably, this opinion was joined by Justice Brett Kavanaugh, who currently sits at the conservative Supreme Court’s ideological center. In fairness, the petitioners in Moore (in Supreme Court parlance, the term “petitioner” typically refers to the party that lost in the court below) take a slightly less extreme position than Gorsuch and Kavanaugh. For example, these petitioners, Republican lawmakers in North Carolina who object to a state supreme court decision striking down gerrymandered congressional maps, do not ask the Court to overrule Smiley v. Holm (1932), which held that state governors may exercise their veto power over election legislation. But the Moore petitioners nonetheless seek sweeping and radical changes to some of the most foundational principles of US election law. They argue that state constitutions “may not impose substantive state-constitutional limits” on laws governing federal elections, an argument that also precludes state courts from striking down election laws that violate such limits. In practice, their theory would also make the Supreme Court, where Republican appointees control two-thirds of the seats, the final word on disputes arising under state election law (currently, state supreme courts have the final say on all questions of state law). An array of conservative luminaries filed briefs practically begging the Supreme Court not to do any of this. Foremost among them is J. Michael Luttig, a former federal judge who was on the cutting edge of legal conservatism in the Clinton and George W. Bush administrations. Then there’s an amicus brief signed by Steven Calabresi, a founder of the conservative Federalist Society and the co-chair of its board, warning that the Moore petitioners “flout core tenets of the American Founding.” A brief by Benjamin Ginsberg, for many years the Republican Party’s top election lawyer, warns that the ISLD would “create untenable legal uncertainty around elections” and “increase the odds that state legislatures replace the popular vote with their own political preferences.” A brief on behalf of retired admirals, generals, and service secretaries — some of whom held high-level political appointments in Republican administrations — warns that the ISLD “undermines election integrity and exacerbates both domestic and foreign threats to national security.” Let me be explicit about just how weak the arguments are supporting the independent state legislature doctrine: Any judge who, after reading the briefs in this case, concludes that the ISLD has merit is either too incompetent to practice law or too blinded by ideology to sit on any court. This entire case turns on the Moore petitioners’ inability to understand a dictionary The ISLD is one of those legal arguments that, if I can borrow some choice words from the late Justice Antonin Scalia, periodically rises “like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” The Court first rejected it in Davis v. Hildebrant (1916), which upheld a provision of the Ohio constitution permitting the people of the state to veto state election laws via a popular referendum — even though that meant blocking a law enacted by the state’s legislative branch. It rejected the ISLD again in Smiley, the 1932 case holding that governors may veto election laws. The Court most recently rejected it in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), which held that states may use a bipartisan commission to draw congressional maps. It’s likely that this particular ghoul refuses to die because the independent state legislature doctrine actually sounds plausible if you read the text of the Constitution without doing any legal or historical research, or even bothering to pick up a dictionary to see how a particularly important word is defined. The Constitution states that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” Meanwhile, another provision says that presidential elections shall also be conducted in a way determined by the state “Legislature.” So the argument for the ISLD is deceptively simple, and can be summarized in three sentences: The Constitution says that the rules governing federal elections shall be made by each state’s “legislature.” A governor, a state supreme court, or a state constitution is not the “legislature.” Checkmate, libs. The problem with this argument is that, at least at the time when the Constitution was drafted, and popularly elected legislative bodies like the US Congress were a relatively new innovation, the word “legislature” did not mean “the elected body of men and women who make up the House and Senate.” It meant, as the Supreme Court explained in Arizona State Legislature, “the power that makes laws.” And that power can be shared. Just as the US president plays a role in making federal laws through their veto power, so too can states allocate that legislative power among their various branches of government. Davis confirmed that this lawmaking power may be given, in part, to the people of the state as a whole through a referendum process. Smiley confirmed that a portion of the legislative power may be wielded by a state governor through his or her veto power. Arizona State Legislature confirmed that a portion of this power may be given to a bipartisan commission. Indeed, if you doubt this definition of the word “legislature,” I encourage you to read the Moore petitioners’ brief. Specifically, I encourage you to read page 14 of their brief, where they quote four dictionary definitions of the word “legislature.” Only one of these four definitions, from a dictionary published four decades after the Constitution was drafted, even plausibly could be read to support the ISLD. That 1828 dictionary defines the word “legislature” to mean “the body of men in a state or kingdom, invested with power to make and repeal laws.” Notably, even this definition does not state that these men must serve in a formally organized legislative branch. And the other three dictionaries quoted by the Moore petitioners define the word “legislature” the same way it was defined in Arizona State Legislature. One 1755 dictionary defines the word to mean “the power that makes laws.” Another, from 1797, offers an identical definition. A third, from 1763, defines the word to mean “the Authority of making Laws, or Power which makes them.” This, alone, is fatal to the Moore petitioners’ arguments — and to Gorsuch and Kavanaugh’s. Properly understood, the federal constitution does not give primacy to a state’s House and Senate. Rather, it says that state election laws should be enacted through whatever process the state uses to make any other law. That may involve a gubernatorial veto, a popular referendum, or a constitutional amendment process that writes some of a state’s election laws into its constitution. A state could even give a portion of its lawmaking power to its judiciary, if it chose to do so. There is no merit whatsoever to the Moore petitioners’ arguments. The Moore petitioners’ arguments fail even if you accept the ISLD as valid Again, the Moore petitioners claim that the Constitution gives North Carolina’s legislative branch primacy in redistricting, and that the North Carolina General Assembly’s decision to draw gerrymandered maps cannot be second-guessed by the state’s courts. But even if you accept the strongest version of the ISLD — that is, even if you believe that the General Assembly has unchecked authority to decide how congressional districts are drawn in that state — the petitioners should still lose their case. That’s because the General Assembly passed a law which explicitly authorizes certain state courts to hear redistricting lawsuits. North Carolina law provides that lawsuits challenging “any act of the General Assembly that apportions or redistricts State legislative or congressional districts” may be filed “in the Superior Court of Wake County and shall be heard and determined by a three‑judge panel.” This court’s decision may then be appealed to the state supreme court. What’s more, North Carolina law — law that was enacted by the legislative branch — provides detailed instructions on how state courts should behave when they determine that a legislative map is illegal. One statute requires state courts to “find with specificity all facts supporting” its conclusion that a map is illegal. Another provides that, after a state court strikes down a redistricting plan, it may not “impose its own substitute plan unless the court first gives the General Assembly a period of time to remedy any defects identified by the court.” So even if you accept Gorsuch’s extreme version of the ISLD, the Moore petitioners still lose their case. The legislative branch of North Carolina’s government explicitly authorized the state courts to hear lawsuits challenging gerrymandered maps. It gave them specific instructions on how to decide these cases, and it even delineated the specific circumstances when a state court may draw its own maps replacing those drawn by state lawmakers. The ISLD would transfer an enormous amount of power over elections to a GOP-controlled Supreme Court Setting aside Moore itself, and the dispute over redistricting commissions in Arizona State Legislature, the independent state legislature doctrine has shambled out of its grave at least two other times in the last three decades. Both times, it was invoked by Republican-appointed justices to solve a political problem: The Supreme Court isn’t supposed to decide most questions involving election disputes, and often the body that is supposed to decide those questions resolves them in ways that favor Democrats. Consider Bush v. Gore(2000), the dispute over a recount of Florida’s presidential ballots, where the Court split along ideological lines and handed the presidency to George W. Bush. The case involved several fights over which votes should be counted during a recount of Florida’s presidential ballots, as well as questions about whether this recount had to comply with tight deadlines. The Florida Supreme Court, which was dominated by Democratic appointees in 2000, had resolved many of these questions in ways that favored Democratic candidate Al Gore. That created a serious problem for Bush. Although the Supreme Court has the final say on questions involving federal law, the Florida Supreme Court had ruled in favor of Gore by interpreting Florida’s own law. And, as the Supreme Court explained in Hortonville District v. Hortonville Education Association(1976), even the nation’s highest Court is “bound to accept the interpretation of [state] law by the highest court of the State.” Enter the independent state legislature doctrine. Although a majority of the Court did not rely on the ISLD in Bush, Chief Justice William Rehnquist wrote a concurring opinion, joined by two other justices, which argued that the ISLD allows the Supreme Court to bypass the rule prohibiting it from reinterpreting a state’s law — and to substitute its own interpretation of a state election law for that of a state’s highest court. Pointing to constitutional language stating that presidential electors shall be appointed “in such Manner as the Legislature thereof may direct,” Rehnquist wrote that “in order to determine whether a state court has infringed upon the legislature’s authority, we necessarily must examine the law of the State as it existed prior to the action of the” Florida Supreme Court. A similar dispute arose during the 2020 election, in Republican Party of Pennsylvania v. Boockvar (2020). In that case, the Pennsylvania Supreme Court ruled that certain mailed ballots, which arrived up to three days after Election Day, should be counted. Because the state supreme court relied upon the state’s own constitution in reaching this decision, it should have had the final word. Again, the US Supreme Court is not allowed to overrule a state’s highest court’s interpretation of the state’s own law. The full Court decided not to hear the case. But Justice Samuel Alito, in an opinion joined by Justices Clarence Thomas and Gorsuch (but not Kavanaugh), called for the Court to invoke the ISLD to give itself the final word on how to read Pennsylvania’s law. “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless,” Alito claimed, “if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision” invalidates those rules. To be clear, the longstanding rule that state supreme courts, and not the US Supreme Court, have the final say over how to interpret state law will sometimes lead to results that one party thinks are unfair. Currently, for example, the Wisconsin Supreme Court is controlled by Republicans, while Michigan’s Supreme Court has a Democratic majority. That means that Wisconsin’s justices may interpret the state’s election law in ways that benefit Republicans, while Michigan’s justices may interpret it in ways that benefit Democrats. But the alternative — the one floated by Rehnquist in Bush and by Alito in Republican Party — is much worse. That alternative is to give the US Supreme Court final authority over all disputes involving federal elections, regardless of where that dispute arises, because it would become the final arbiter over whether one side in a dispute infringed on the state legislature’s power. It would mean that, no matter what, the outcome of a disputed congressional or presidential election would rest on a Court where Republican appointees currently have a 6-3 supermajority. The ISLD would effectively turn Brett Kavanaugh, the median vote on the current Supreme Court, into the final authority on all federal elections. No Court that would claim this kind of power can be trusted with it The independent state legislature doctrine is obviously and embarrassingly wrong. It relies on a simplistic reading on the Constitution that is repudiated by many of the same sources quoted in the Moore petitioners’ briefs. It would upend more than a century of precedent. And it would give an unprecedented amount of power over elections to whichever political party controls the Supreme Court. Indeed, the arguments for the independent state legislature doctrine are so flimsy, and the consequences of a Supreme Court decision embracing it are so alarming, that even the co-chair of the Federalist Society’s board — the same Federalist Society that Trump relied upon to choose his judges and justices — is urging the Supreme Court to stay its hand. I am under no illusions that the pivotal justices on this Court will care what I have to say about Moore, but I hope they can find it within themselves to listen to Steven Calabresi. Or to Judge Luttig. Or to the generals and admirals telling them that the ISLD is a threat to national security! And, on top of all of that, the Moore petitioners have managed to bring a case to the Supreme Court that is so weak that they should lose even if you accept their ludicrous reading of the Constitution. Any justice who would claim the simply enormous amount of power offered to them by the independent state legislature doctrine cannot be trusted to wield that power fairly, or in a nonpartisan way. There is simply no plausible legal argument for the ISLD, and so a Supreme Court decision embracing it would be a declaration that the law simply does not matter in this Court. And it would be a declaration that every disputed federal election will now be resolved by justices who care nothing about the law.
Qatar’s anti-LGBTQ policies, explained
Photo by Alex Livesey - Danehouse/Getty Images The FIFA World Cup has highlighted Qatar’s laws and attitudes towards homosexuality. Qatar’s anti-LGBTQ policies have become a flashpoint in a controversial World Cup tournament; between national teams facing punishment for wearing rainbow “One Love” armbands, international fans told they can’t wear rainbow shirts, and a Qatari minister’s anti-LGBTQ comments this week, queer rights in the tiny Gulf emirate are one of the controversies on and off the pitch. In Qatar, where punishments can include up to three years in prison for being LGBTQ, it has meant friction with the world over the country’s policies and attitudes toward queer people, and even those showing support for LGBTQ rights — as well as concern locally about what happens once the tournament is over and the world’s attention moves on. On Monday, a protester disrupted the match between Uruguay and Portugal, running onto the pitch waving a rainbow flag reading “PACE,” the Italian word for peace, and wearing a Superman t-shirt with messages of support for Ukraine and the women protesting in Iran. Following the stunt, the Qatari Supreme Committee banned the fan from the remainder of this year’s matches and revoked his permit to stay in the country, the Guardian reported. Later in the week, Qatar’s energy minister Saad Sherida Al-Kaabi told Germany’s Bild newspaper that though LGBTQ people were welcome to visit Qatar, western countries cannot “dictate” support for LGBTQ rights. Qatari law criminalizes sex outside marriage, including gay sex. “If you want to change me so that I will say that I believe in LGBTQ, that my family should be LGBTQ, that I accept LGBTQ in my country, that I change my laws and the Islamic laws in order to satisfy the West — then this is not acceptable,” Al-Kaabi said. Perhaps the most visible struggle over LGBTQ rights emerged over FIFA’s decision to punish players wearing “OneLove” arm bands in support of LGBTQ rights. According to the New York Times, seven European teams alerted FIFA to their plans to have captains wear the armbands back in September. FIFA didn’t hand down its decision to give yellow cards to players wearing the armbands until just a few hours before England, one of the teams planning to protest, took the pitch, and has not responded to Vox’s request for comment regarding that decision. German players protested that decision, covering their mouths during pre-match team photos. On its English-language Twitter account, the German team wrote, “It wasn’t about making a political statement — human rights are non-negotiable. That should be taken for granted, but it still isn’t the case. That’s why this message is so important to us. Denying us the armband is the same as denying us a voice. We stand by our position.” It wasn’t about making a political statement – human rights are non-negotiable. That should be taken for granted, but it still isn’t the case. That’s why this message is so important to us.Denying us the armband is the same as denying us a voice. We stand by our position.— Germany (@DFB_Team_EN) November 23, 2022 In a joint statement, the teams planning to wear the armbands said they were prepared to pay fines for violating FIFA’s stringent uniform codes, but the prospect of starting a game with a penalty already against valuable players was an unfair risk, according to the Associated Press. FIFA offered “no discrimination” arm bands. During this year’s World Cup, fans as well as journalist Grant Wahl report that they’ve been confronted when wearing rainbow paraphernalia in public, with some fans refused entry to early matches despite assurances from Qatar and FIFA that all were welcome. “I have been speaking about this subject with the country’s highest leadership,” FIFA president Gianni Infantino said in a statement. “They have confirmed, and I can confirm that everyone is welcome. If anyone says the opposite, well it’s not the opinion of the country and it’s certainly not the opinion of FIFA.” Qatar’s anti-LGBTQ policies are draconian Qatar’s government, run by the wealthy Al-Thani family, mandates a conservative Islamic society. In the interpretation of Sharia law Qatar follows, sex outside of marriage, including homosexuality, is punishable by jail time and, as a maximum sentence, death by stoning, though there isn’t available evidence that such a punishment has ever been used. It’s difficult to gauge what queer life is like in Qatar because LGBTQ expression is extremely limited, Dr. Nasser Mohamed, a gay Qatari living in exile in the US, explained to Vox. “I came out to have a platform for us,” he said, explaining that none of the queer people he knew in Qatar were out. “In Qatar, it’s extremely dangerous for us to organize. When one person is found out, law enforcement tries to find out everyone they’re in touch with. So it’s really hard to build a gay community.” Mohamed left Qatar in his 20s for medical school “with the intention of never coming back” because of the limited life he could have as a gay man there. “There’s a lot of similarity to Mormon and Amish communities, in terms of their religious practices and cultural practices — you’re either in or out, as a Qatari, you really can’t be different in any way,” he said. Though there are small pockets of LGBTQ people in Qatar, there’s not a gay scene, Mohamed said. According to a report in Reuters, there are some places where it’s possible for queer people to congregate safely — at parties in the homes of close friends, and at some high-end restaurants and clubs. But that’s largely dependent on social status, as well as one’s country of origin; it’s easier to be queer if you’re not a Qatari citizen, but only if you’re also wealthy. “If you’re an expat, you’re able to live your life like you want,” a gay Arab man living in Doha told Reuters. “At the same time, I know I can live like this because I am privileged. I know gay men in workers’ camps wouldn’t be able to live the same way.” What happens when the world is no longer watching Qatar? Now Mohamed is in touch with closeted queer Qataris, some of whom spoke to Human Rights Watch for a recent report detailing the abuses they’ve suffered at the hands of the state. As recently as September of this year, LGBTQ Qataris reported that members from the Preventive Security Department had “detained them in an underground prison in Al Dafneh, Doha, where they verbally harassed and subjected detainees to physical abuse, ranging from slapping to kicking and punching until they bled.” Other reported punishments include “verbal abuse, extracted forced confessions,” and mandated, state-sponsored conversion therapy for transgender women as a condition of their release. According to the report, the security forces also “denied detainees access to legal counsel, family, and medical care” and searched their phones, all while they were detained without charge. They received no record of their time in detention — which makes proving the state’s violence against LGBTQ people difficult. A Qatari official denied information in the report, including accounts of forced conversion therapy. Mohamed expressed concern that the lack of documentation around state-sponsored abuses of LGBTQ people could prevent people seeking asylum from supporting their cases. “The tolerance [the Qatari government] is giving to the world, is not extended to us, and people really need to know that,” he said. Vox reached out to the US State Department for comment about the plight of queer Qataris and the protection of asylum claims, but did not receive a response by press time. Mohamed’s other worry is the backlash, “What they are calling ‘Western cleansing’ after the World Cup,” he said. Queer people in Qatar are worried, too, about what happens after the world’s attention to Qatar’s human rights record inevitably shifts after the tournament wraps up. “What about us, who have lived in Doha for years and made Doha queer?” an Arab man living in Doha and interviewed by Reuters said. “What happens when the World Cup is over? Does the focus on the rights stop?”
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The next Congress will be the most representative of Latino identity ever
(From left front) Representative-elects Maxwell Frost, Robert Garcia, and Delia Ramirez take a selfie with other newly elected incoming members of the Congressional Progressive Caucus, Chair Rep. Pramila Jayapal, and Rep. Ilhan Omar after a news conference at the AFL-CIO Building in Washington, DC, on November 13. | Tom Williams/CQ-Roll Call, Inc via Getty Images Voters are sending the highest number of Latino lawmakers to Congress ever, and increasing ideological diversity along with it. The incoming Congress will be historic for many reasons, including the House of Representatives’ highest share of Latino lawmakers ever. Fourteen newly elected candidates will join the 34 incumbents who held their seats this cycle, meaning the next House will be nearly 11 percent Latino. Those 14 new members represent all kinds of communities: rural, suburban, and urban; they’re from competitive swing districts and partisan strongholds; and from states with newly burgeoning Latino populations and those with longstanding Latino communities. Together, they demonstrate the increasing ideological diversity of Latinos in the United States. Both sides’ additions to Congress will bring many firsts, including the first Congress member from Generation Z (elected in Florida), the first gay immigrant (elected in California), and the first Midwestern Latina (from Illinois). It will also bring new representation from states that haven’t elected a Latino before, like two representatives from Oregon and one from Washington state, as well as the official election of a Latino senator from California and the reelection of the first and only Latina in the Senate. Beyond those historic firsts is what these Republicans and Democrats reveal about America: that the country is in a moment of growing Latino power that’s inclusive of differing ideas of what it means to be Latino and American. The new class will showcase the breadth of Latino perspectives on the role of government, racial or ethnic solidarity, and religious and family values. Al Drago/Bloomberg via Getty Images Representative-elect Anna Luna, a Republican from Florida, outside the US Capitol with other newly elected representatives following a group photo on November 15. Congress, and much of the country, hasn’t seen some of the Latino identities and politics this new class will bring. The next two years will be an experiment in what Latino diversity looks like and how it can be used to govern. Below is an introduction to these new members, arranged by party and political philosophy. The safe-seat (mostly) progressives Open, safe seats for Democrats — made available through retirements, their previous occupants running for other offices, and redistricting — brought the majority of new Democratic Latino members to Congress. Unsurprisingly, all five came from states that have previously elected Latino Democrats and have large Latino populations. Nearly all belong to the political left and advocated for progressive policies like raising the minimum wage, enacting stronger gun control laws, and expanding access to affordable health care during their primary campaigns. Though serving in the minority, each will likely push the party, and the caucus, to be more outspoken on immigration and civil rights. Many are either immigrants or children of immigrants. Four have joined the Congressional Progressive Caucus, the group of over 100 members that form the bulk of the party’s left flank in Congress; and at least three are seen as likely to join the ultra-progressive group of Democrats known as the Squad. Robert Garcia, the mayor of Long Beach, California, will be the first LGBTQ immigrant to be elected to Congress, after serving two terms as the first gay mayor of Long Beach. His district, which covers majority Latino cities south of Los Angeles and the port city he led, was created through redistricting this year after California lost a congressional seat for the first time in its history. Francine Orr/Los Angeles Times via Getty Images Representative-elect Robert Garcia, center, hugs his husband Matthew Mendez, left, after speaking to supporters during his election night celebration in Long Beach, California, on November 8. Born in Peru, Garcia did not become a US citizen until he was 21: “Having to go through the process of naturalization and citizenship is unique, and there’s not a lot of folks in Congress that have been through that,” Garcia told me. “I know what it’s like to wake up at three in the morning and stand in long lines to try to move your process forward, and the disappointment when your immigration status is not moving forward.” In the new Congress, he said he and new Latino lawmakers will have to balance the need to “change things up as much as possible,” but also “build the team.” “This new class represents a next generation of Latino leaders,” he told me. “We’re all united on the issues, particularly around immigration and health care.” Another historic first comes to Congress from one of Florida’s most Democratic districts, the 10th, centered on Orlando, that Rep. Val Demings vacated to unsuccessfully run for Senate against Marco Rubio. Here, Maxwell Alejandro Frost, a 25-year-old organizer and activist, made history as the first Afro-Cuban and first member of Generation Z to be elected to Congress. When he takes office, he’ll be the youngest member of Congress, and part of a group of “real progressive Latinos that are showing folks that the values of our culture and the values of our party can and should be aligned,” he told me. Mandel Ngan/AFP via Getty Images Representative-elect Maxwell Frost, center, poses for a photo with other new House members outside of the US Capitol on November 15. To explain what he means by that, Frost said it’s helpful to think of “this word, familia — when it’s up to us, as Latinos, everybody eats; when it’s up to us, everybody has care and health; when it’s up to us, everyone has a roof over their head. How do we marry the culture of our communities with the politics and the way we can talk about what we believe in? I think there’s untapped potential that can help change our party for the better.” Frost ran a campaign focused on progressive priorities, like Medicare-for-all and stricter gun control measures (he got his start in politics as part of the March for Our Lives youth movement), and beat out two former Democratic members of Congress to win the Democratic primary back in August. Now he wants to show that his bold, hopeful, progressive message can be persuasive outside of districts like his. “We had support, donors, and volunteers that were Republican, that were extremely moderate, people who would come up to me and say, ‘Max, I disagree with you on this, this, and this, but I trust you, and I get what you’re trying to do.’ And I think that’s the future of our party,” he said. Frost has already made friends with another representative-elect who made history — this time, out in the Midwest. Delia Ramirez, an Illinois state representative, will be the first Latina to be elected to Congress from a Midwestern state. The daughter of two immigrants, Ramirez’s election shows the natural evolution of Latino representation in the US: She is just the second Guatemalan American in Congress and the first who was born here. Her district includes heavily Democratic and majority-Hispanic parts of Chicago, as well as the suburbs of moderate DuPage County, which has seen an increase in Latino residents that Ramirez told me “represents the first, second, and third generation of Latinoness.” Anna Moneymaker/Getty Images Representative-elect Delia Ramirez departs from an orientation meeting in the US Capitol on November 14. “You have a lot of us who are firstborns here, who grew up in the city of Chicago, who went off to college, who went off to nonprofits to do work, and are still very close, connected to our roots. We have our parents, who now are US citizens but struggled for a long time being undocumented,” she said. “And now, following the migration of new immigrants coming into the city, who can no longer afford to live in the city, are following job opportunities into manufacturing west of the city, this district has the fastest-growing community in the entire state.” That diversity of immigrant experience, class, and ethnicity may offer a road map for Democrats looking for ways to stem some of the losses they have experienced with Latino voters around the country. Ramirez ran on a progressive populist economic message, focused less on social issues and zeroing in on the political left’s solutions to bread-and-butter issues. Ramirez, Frost, and a newly elected Latino lawmaker from Texas, Greg Casar, are the incoming members most likely to join the Squad in Congress. Casar, a former city council member in Austin, won his race by a 50 percent margin, in one of the most Democratic districts in Texas that stretches from San Antonio to Austin. Described by the Texas Observer’s Gus Bova as a “leading light for the Texas left” who plans to “be among the furthest left in the House’s left wing,” Casar was best known during his tenure on the Austin City Council for supporting the reallocation of funds cut from the local police department and advocating for the decriminalization of outdoor encampments, according to the Texas Tribune. That progressive history makes him the latest in a long line of progressive Texan Latino politicians, who have been instrumental in pulling the Congressional Hispanic Caucus, and House Democrats, to the left on immigrant and civil rights. Montinique Monroe/Getty Images Greg Casar celebrates his primary election win at his watch party in Austin, Texas, on March 1. One additional Latino representative-elect will join these progressives from a safe blue seat: Rob Menendez Jr., the son of New Jersey Sen. Bob Menendez, will represent the district just outside of New York that his father once held. A liberal Democrat who was favored by the party establishment and supports mainstream priorities on the child tax credit, universal preschool, and raising the federal minimum wage, Menendez continues a tradition of Cuban American representation in the Northeast. The front-liners A second cohort of Democratic first-termers are joining Congress as so-called “front-liners” from the most competitive districts in the country. They ran measured campaigns focused on economic issues, advancing progressive ideas and policy proposals while not necessarily embracing the progressive label, and won with tiny margins — making reelection prospects much less certain than the outspoken progressives who won in other states. Their elections show the wide reach of Latino communities in the US, which extend beyond the urban cores that have often given candidates of color the best shot at increased ethnic and racial representation. And they are a reminder that voters, whether Latino or not, are willing to elect candidates of color in ultra-competitive districts. Gabe Vasquez pulled off an important win in New Mexico by flipping the state’s swingy Second Congressional District from Republican Yvette Herrell. Winning by a little over 1,000 votes, Vasquez, a first-generation Mexican American and former member of the Las Cruces City Council, is the latest in a long line of Latinos representing New Mexico: Herrell ousted Xochitl Torres Small in 2020, who was elected in 2018’s “blue wave” year after beating a Republican who had held the Second District for years before then. More than 20 Hispanic members of Congress have come from New Mexico. His close victory shows that running on a progressive platform, without necessarily calling yourself a progressive, can work in a battleground district with a majority-Latino population. Anna Moneymaker/Getty Images Representative-elect Gabriel Vasquez speaks at a Congressional Hispanic Caucus event welcoming new Latino members to Congress at the headquarters of the Democratic National Committee on November 18. Marie Gluesenkamp Pérez, who flipped a rural, Republican-held district in Washington state just north of Portland, Oregon, was one of the biggest surprises of election week. The state’s Third District voted for Donald Trump twice and Mitt Romney before that, growing more friendly to Republicans after redistricting — but Democrats had an opening after a right-wing, Trump-aligned challenger ousted Rep. Jaime Herrera Beutler, a Republican who voted to impeach Trump after the January 6, 2021, Capitol attack, during the primary this year. Trump’s meddling shouldn’t overshadow the work that Gluesenkamp Pérez did to win over independent and Republican voters in the district. She’ll be the first Democratic Latina to represent a seat that is nearly 90 percent white, and she did that by casting herself as a rural, blue-collar Democrat whose family gets their water from a well, internet from a radio tower, and heating from burning wood (as a campaign ad put it). She got very little support from national Democrats, but in a press conference in late November, she praised the Congressional Hispanic Caucus’s political arm, BOLD PAC, for endorsing her in her race. I'm definitely not your typical candidate for Congress. And right now, the only thing standing between Joe Kent and Congress is me.— Marie Gluesenkamp Perez (@MGPforCongress) October 24, 2022 In neighboring Oregon, Andrea Salinas, a daughter of Mexican immigrants and a state representative, won her race to represent Oregon’s new Sixth District after a competitive primary saw her pitted against a challenger financed by former crypto-billionaire Sam Bankman-Fried. BOLD PAC spent over $1.2 million in her race against a self-funded Republican businessman, and praised her victory as an example of a progressive who could run in a moderate district and win crossover support from Republicans. Though more Democrats were registered to vote than Republicans in this district, independent voters outnumbered either group. Made up of Portland’s suburbs, the state capital of Salem, and a swath of rural Oregon, the district is diverse, with a large Latino voting population in cities and many agricultural and timber workers in the rural parts. She will be the first Latina Democrat to represent Oregon. One more front-liner surprised Democrats on Election Day: Yadira Caraveo, the Colorado assembly member and pediatrician who won the newly created, ultra-competitive Eighth District and became the first Latina elected to Congress from that state. Her race didn’t get much attention, though BOLD PAC endorsed her during her primary, and she won by less than 1 percent. Bill Clark/CQ-Roll Call, Inc via Getty Images Representative-elect Yadira Caraveo, left, arrives for new member orientation in the Capitol Visitor Center in Washington, DC, on November 14. The new Republicans Republican Latinos also made huge gains in representation this year. At least five will join Congress, coming from all across the country. Each represents a new facet of Hispanic conservatism in the US. Some fit into a long tradition that centers on individualism and traditional moral values, while others are updating Latino Republican identity with young right-wing activist energy. Not all come from districts with large Latino populations, but they serve as reminders that increased Latino representation will naturally mean an increase in Latino Republican politicians. A good third of Latino voters have, did, and will continue to vote for Republican candidates — and will choose a Hispanic conservative when given the opportunity. Juan Ciscomani will make history as the first Republican Latino to be elected from Arizona. Born in Mexico and brought to the United States at age 11, he will also be the state’s first immigrant Congress member. He ran on a pro-business conservative platform that focused on inflation, immigration, and abortion, and described himself as “pro-life, and with exceptions.” His immigrant heritage was a main feature of his campaign — though he wanted to appeal to Latino voters, the district is still overwhelmingly white. In Florida, Anna Paulina Luna of the state’s redrawn 13th District picked up the seat vacated by Charlie Crist, the failed Democratic gubernatorial candidate. She’s an Air Force veteran and conservative activist who was the Hispanic outreach director for the conservative Turning Point USA youth organization, and her victory brings another MAGA-aligned candidate to Congress’s right flank. She also made history by being the first Mexican American woman elected to represent Florida in Congress. She’s previously described herself as a “pro-life extremist” and will likely join the extremely online caucus of right-wing House Republicans who have made the party’s discourse much more radical. Not going to happen @chuckschumer . Many of my colleagues in the new majority like @monica4congress will agree with me.— Anna Paulina Luna (@VoteAPL) November 17, 2022 Meanwhile, South Texas furthered the MAGA-fication of border towns with Monica de la Cruz’s victory in the 15th District, which saw national Democrats pull their spending as the midterms got more competitive. Defeating progressive candidate Michelle Vallejo, de la Cruz ran a campaign focused on border security and inflation, and will likely be an influential voice on immigration. She will be the first Republican to represent her historically Democratic district, and was the only one of the “triple threat” of Republican Latinas running South Texas to win an election this year. Sergio Flores for The Washington Post via Getty Images Monica de la Cruz celebrates her election-night victory with her children, Sophia and Joseph Uribe, in McAllen, Texas, on November 8. A different kind of Republican candidate won races in New York and Oregon. George Santos, who won a Long Island election in a New York district that got more Republican after redistricting, has Hispanic heritage but didn’t run a campaign where his ethnic identity played a big role. He instead focused primarily on crime and his ties to the community he wanted to represent. His contest in the state’s Third Congressional District got more attention for being a showdown between two out gay candidates. And Lori Chavez-DeRemer, a former small-town mayor in Oregon, made history with Democrat Andrea Salinas as the other Latina to be the first elected to Congress from the state. Running on a more moderate platform in a district that had been held by a centrist Blue Dog Democrat who lost a primary to a progressive challenger, she was able to win crossover support in the political center — she campaigned with former South Carolina Gov. Nikki Haley, focused on crime and affordability, and was endorsed by moderate Republican organizations like the LGBT Log Cabin Republicans and the regional chamber of commerce. She will likely join the score of GOP centrists who will now have more influence in Congress and try to pull the tiny Republican majority away from the political extremes that tend to dominate national attention.
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The big stakes in the Supreme Court’s new LGBTQ rights case
People gather outside the Supreme Court to protest the decision on Masterpiece Cakeshop v. Colorado Civil Rights Commission, which ruled in favor of Colorado baker Jack Phillips, on June 4, 2018. | Sarah Silbiger/CQ Roll Call What is art? The Christian right wants that question to be decided by the Supreme Court in 303 Creative v. Elenis. 303 Creative v. Elenis, a case about a website designer who refuses to design wedding websites for same-sex couples, could potentially become one of the most consequential anti-discrimination cases in the Supreme Court’s recent history. It asks whether the First Amendment’s free speech protections give at least some anti-LGBTQ conservatives a constitutional right to violate civil rights laws. The case is also a complete mess. Indeed, it’s hard to pin down what, exactly, the two parties to this case actually disagree on. Lawyers from the Alliance Defending Freedom (ADF), a Christian-identified, anti-LGBTQ organization, represent Lorie Smith, a web designer who wants to sell custom wedding websites to opposite-sex couples — but not to same-sex couples. They argue that Smith should be exempt from a Colorado law prohibiting discrimination on the basis of sexual orientation. ADF’s lawyers make an uncharacteristically strong argument. “It is bedrock law that the First Amendment protects an artist’s right to choose what to say and when to remain silent,” ADF writes in its brief. It follows that no law can force a web designer, someone who is literally in the business of publishing words that can be read by the general public, to create a website that they find fundamentally objectionable. This is a very strong First Amendment argument. Indeed, it is such a strong argument that the defendants in this case — the seven members of Colorado’s Civil Rights Commission and that state’s Democratic attorney general — agree with ADF. Colorado law, they write in their brief, permits web designers “to decide what design services to offer and whether to communicate its vision of marriage through biblical quotes on its wedding websites.” It allows them to refuse to design websites that celebrate same-sex marriage, or to refuse to make a website that conveys any other message that they find objectionable. The main thing that Colorado’s law requires, according to the state, is that once a web designer agrees to sell a particular web design to the public, it must provide the same service to people of all sexual orientations. If Lorie Smith would sell a website denouncing same-sex marriage to a straight customer, then she must sell that same website to a gay customer, if such a customer should request one. Yet, while it is hard to pin down what, exactly, is the real controversy between Smith and the state of Colorado, the stakes in 303 Creative are still quite high. 303 Creative is a sequel to another high-profile Supreme Court case brought by ADF lawyers, Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), which claimed that the First Amendment permitted a Colorado baker to refuse to bake a wedding cake for a same-sex couple because the baker’s cakes were a form of “artistic expression.” But if certain businesses are exempt from civil rights laws because they make products that require a spark of creativity, then it is far from clear which businesses should still be required to follow the law — after all, lots of jobs require at least some artistry. As Justice Elena Kagan noted during oral arguments in Masterpiece Cakeshop, if cake bakers qualify as “artists” who can defy civil rights laws, then what about jewelers? Or hairstylists? Or makeup artists? What about a conservative Christian restaurateur who claims that their food is an expression of their most sincere religious values, and therefore must not be served to gay customers? And does it matter if this restaurateur is a classically trained chef who completed years of artistic instruction, or someone who sells simple hamburgers? The Masterpiece Cakeshop decision didn’t really engage with these questions — although ADF prevailed in that case, it did so on narrow grounds that have few implications for future cases. Now, 303 Creative is a poor vehicle for the Supreme Court to resolve these disputes. The case was brought prematurely, and for that reason, the most important issues in the case should be dismissed. But the Court’s GOP-appointed majority is very eager to decide cases brought by religious conservatives, so there is no guarantee that they will dismiss the case. It is entirely possible that they will, instead, use the 303 Creative case to rule that at least some self-identified “artists” are immune from civil rights laws. This case should be dismissed The First Amendment’s free speech clause forbids nearly all forms of government censorship. It also prohibits the government from forcing someone to convey a message — whether through spoken or published words — that they do not wish to convey. This is why, for example, recently enacted Texas and Florida laws that effectively order social media websites to publish content against their will are unconstitutional. Web publishers, like any other publisher, have a nearly absolute right to refuse to publish anything they do not wish to appear on their website. The same rule applies to Lorie Smith. If Colorado actually attempted to force her to design a website that she finds objectionable, then that would violate the First Amendment. Colorado cannot make Smith produce a website that expresses approval of same-sex marriage, regardless of whether she is an amateur web designer or a professional who offers her services to paying customers. As the Supreme Court said in Rumsfeld v. Forum for Academic and Institutional Rights (2006), “freedom of speech prohibits the government from telling people what they must say.” At the same time, the Court has repeatedly emphasized that anti-discrimination laws do not, “as a general matter, violate the First or Fourteenth Amendments.” Indeed, the Masterpiece Cakeshop decision insisted that protections against discrimination should remain strong. Though the Court said in Masterpiece Cakeshop that “philosophical objections” to same-sex marriage may sometimes carry some legal weight, it also declared that “it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Colorado’s law threads this needle, because it guarantees “equal access to goods and services” without requiring Smith to actually produce a website she finds objectionable. The main thrust of Colorado’s brief is that the state has no actual desire to make Smith say anything. Nor does the text of Colorado’s anti-discrimination law require her to design a website she does not wish to make. Instead, that law provides that a business cannot deny someone “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” that the business sells to the public, because of a customer’s sexual orientation. As Colorado explains in its brief, this law “does not turn on what a business chooses to sell. It simply requires that, once a business offers a product or service to the public, the business sells it to all without regard to a customer’s protected characteristic.” That is, Smith has an absolute right to say that she is not in the business of making websites that celebrate same-sex marriage. What she cannot do is sell a particular website to straight customers and then refuse to sell it to queer customers. Think of it this way: Suppose an author writes a book called Lesbians Are Immoral. The First Amendment protects nearly all forms of speech, including hate speech, so this book is protected by the Constitution and the government may not pass a law seeking to alter its content or banning its sale. Now suppose that Brenda, who is a lesbian, goes to a Colorado bookstore and attempts to purchase a copy of Lesbians Are Immoral. If the bookstore refuses to sell the book to Brenda because of her sexual orientation, that would violate Colorado’s civil rights law, and the bookstore would not be protected by the First Amendment. The First Amendment forbids the government from changing the content of a book, but once that book exists, the government may prohibit anyone who would sell it from discriminating. The same rule applies to any other form of expression — whether it is a website, a painting, or a cake with a pro-LGBTQ message written on it in icing. The government cannot force Smith to design any website she finds objectionable. But it can require her to sell the same web design to all customers, regardless of their sexual orientation. Which brings us to the reason the 303 Creative case should be dismissed: Lorie Smith has never actually refused to design a wedding website for a customer who wishes to buy one from her. As Colorado says in its brief, Smith’s company “has yet to build any custom wedding website, serve a customer, refuse work for a same-sex wedding, or have the [state’s civil rights law] enforced against it in any way.” Federal courts are not in the business of deciding hypothetical cases. As a unanimous Supreme Court held in Texas v. United States(1998), “a claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’“ If, at some point in the future, a customer asks Smith to design a particular website, she refuses, and then Colorado attempts to sanction her for that refusal, then she may very well have a valid First Amendment claim. But it is impossible for the Supreme Court to determine whether this hypothetical chain of events might play out in the future. ADF wants to relitigate Masterpiece Cakeshop — and a bunch of other cases, too The reason the Court historically has stayed away from hypothetical cases is fairly simple. As the Court said in Texas, “the operation of the statute is better grasped when viewed in light of a particular application.” Colorado’s civil rights law, for example, turns on a very fine distinction between refusing to sell a particular product (which is permitted) and refusing to sell a product to a particular customer (which often is not allowed). It is difficult to know whether a particular litigant intends to violate this law until they’ve actually refused to make a particular sale. ADF’s brief, however, doesn’t just ask the Court to adjudicate a hypothetical future dispute between Smith and the state of Colorado; it spends a surprising amount of time discussing superficially similar cases involving wedding vendors who refuse to serve same-sex couples: Government officials are using their power to coerce those who hold views those officials disfavor. The consequences are often severe. Barronelle Stutzman was forced to retire and hand over her company after Washington prohibited her from creating floral art for weddings. Elane Photography and Sweet Cakes went out of business entirely. Emilee Carpenter is facing six-figure fines and jail. Chelsey Nelson and Bob Updegrove are in litigation. And Jack Phillips has been in court for 10 years—despite prevailing in this Court. Even assuming that ADF is not mischaracterizing the facts of any of these lawsuits, none of these cases are before the Court in 303 Creative. All of them involve different facts than Lorie Smith’s case, and many of them took place in different states, where the relevant anti-discrimination law may not draw the same distinction — between refusing to sell a product and refusing to serve a particular customer — that Colorado’s law draws. It’s hard to think of a valid legal reason ADF would include this paragraph in their brief, except that they hope it might goad the conservative majority on the Court into handing down a sweeping decision to end what ADF describes as a widespread problem. We should hope that the Supreme Court will resist the temptation to do so. The question of how the First Amendment should apply to creative workers and business owners is not easy, and it typically turns on the nuanced facts of each particular case. Because Smith is in the business of writing words and publishing them online, for example, she actually has a very strong case that her business is protected by the First Amendment — and that Colorado may not, if such a case should arise in the future, compel her to produce a particular website against her will. But the same cannot be said about a florist or a cake baker. Sure, a florist may have a First Amendment right not to arrange a bunch of roses to spell out the words “GAY MARRIAGE IS AWESOME!” But the First Amendment does not permit a florist to refuse to sell a particular flower arrangement to a straight couple and not sell that identical arrangement to a gay couple. And it would be a constitutional earthquake if the Supreme Court held that the First Amendment does protect such a florist, because it would mean that anyone whose work requires some degree of artisanship could potentially seek an exemption from civil rights laws. Again, there may well be valid cases where the First Amendment overcomes a civil rights law. But these cases are nuanced and fact-specific, and they often turn on the very particular wording of state civil rights statutes. We can only hope that this Supreme Court resists the temptation to hand down a sweeping decision in 303 Creative, and instead tells Smith — and people similar to Smith — to wait until she has a real case.
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