Biden Update (including Voting)

On his new transition website, Biden outlines his plans to address four main issues: COVID-19, economic recovery, racial equity, and climate change.

This was back in November, when a few unfortunate Senate races made winning control look like an uphill battle.

Well, the first is going on strong, and the first big bill to address the second was passed. There are plans for a second, focusing not only on infrastructure but climate change. Biden already re-joined the Paris Agreement and selected John Kerry to lead the effort there. Race equity has been dealt with by change in tone, executive orders and appointments, and to some degree also the American Rescue Plan.

Not a bad start. Toss in holding an impeachment trial. Of course, the problems are a lot and there is a lot to be done. But, you know, it is only March. We had a couple major mass shootings, one at least with racial overtones (Asian massage parlors). Racism against Asians has always been a thing, but the Big V heightened it in new ways. One member of Congress talked about how it affected his young son. Note that this shows the value of Twitter, which is often criticized. And, with Twitter queen Christine Teigen stepping off Twitter after too much attacks, yeah there is that side. Monica Lewinsky and Morgan Fairchild are still there though.

Another concern that has been going on for a long time is the border. Or, as people at the Biden press conferences (he himself showed up to give one and did well; the questions on the other hand left something to be desired at times, including no COVID question and asking if he'd run in 2024), keep on wanting his Administration to say the "crisis at the border."  This includes dealing with an influx of unaccompanied minors that AOC has flagged as something that has to be done better.

Crisis or not, the problems have been going on for a while. It is not somehow a novel result of anything he did, even if his policies in some fashion tweaked the situation to some degree (so I would not say "nothing" changed). It is a large lasting problem, like military use overseas, something we need to seriously address. The buck does to some degree stop with him, but it also is something that Congress has to address. GITMO is still open.  Why?  Well, in large part because Congress refused to help President Obama to work toward closing it.  

The full Cabinet is confirmed. Cabinet adjacent positions are not totally filled; after a controversial pick dropped out, only the assistant OMB slot was filled -- but especially with a push before to make her the OMB head, not sure how much that really matters.  There was a controversy with the two Asian senators upset that none was picked for the Cabinet (again, one was picked for the next level and another was blocked), but he agreed to work harder to bring in more Asians. A few were annoyed about the pushback by two very good woman senators, but it is part of the messy approach to dealing with these sort of questions.  Good for them.

There are a lot more positions to be filled and a 50-50 Senate already has caused some delays.  Ambassadors are one major concern.  Another, of course, are judges.  There has been some noises that Biden is about to drop some judicial nominations, especially with a few court of appeals vacancies, including Merrick Garland's prime piece of real estate.  The mother lode here is still in the hope phase -- what will Breyer do? I lean toward thinking he will retire and is waiting for later in the term. 

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Finally, there is various other things -- the shootings have again brought to the fore gun regulations. During the press conference, it seems he suggested that timing warrants going with an infrastructure bill first. There is also the voting rights package.  Sen. Manchin made a statement last week saying it was a bad idea to push major change without bipartisan support. Sure.  But, at some point, major change is needed, even if one side is so horrible and refuses to change.  This will be a long and aggravating process.  I think something will come out of it.  What?  I'm not sure yet. It might be somewhat disappointing, but 50-50 will get you that.  Even if the Dem 50 represents so many more people.

The Georgia "oh? so you want to vote for good people, do you?" voting restriction law hopefully will push things along here.  One blatant addendum is to single out giving food and water to people on line, which even a far from flaming liberal law professor tried to explain to a National Review type was dubious in the extreme.  A rule against gifts to voters can be taken too far, but is okay on some level. The law, however, singles out giving water and food to people often on line for a long time.  

The law has already been challenged, signed on by a major voting rights legal warrior.  Biden joined the strong criticism, reference to a New Jim Crow.  The law does not only burden blacks though as the brief notes in various ways does particularly burden them.  Still, I would highlight that laws that burden the right to vote has a wider target.  Some will see this as merely a "black" concern.  But, voting rights is for us all.  

Someone I respect but who at times tosses out dubious things (he does not think there is a constitutional right to choose an abortion though agrees that Republicans should not selectively target such things) phrases that badly on Twitter:

The right to vote isn’t in the Constitution. It can’t be denied on the basis of race/gender but if states do it ahead of time the legislature may appoint governors, mayors, etc., even the POTUS candidate from that state. I’m not kidding.

First, it cannot be denied in other ways too, including poll taxes and in a way that violations equal protection. The "right to vote" is a "liberty" that cannot be deprived without equal protection of the laws. The "do it ahead of time" itself is a Twitter way to avoid a "right to vote" found in the Constitution. People have the right to choose members of Congress based on the standards of the most populous state legislative branch. The "etc." cannot include members of Congress unless they deny people the right to vote for state legislators. Never happened (though it was restrictive).

He then follows up to someone flagging the Guarantee Clause to say it isn't justiciable. Well, that's by precedent. It isn't by the clear text of the Constitution. Plus, that doesn't mean the "right to vote" is not present. At the very least, it is rather misleading to say "well, yes, there is a right to vote, Congress can enforce it, but I mean that it will be left unenforced including by the courts." That is akin to saying there was no equality in the days of Jim Crow (the first cycle of it).

Congress has a lot of power to enforce a right to vote, including the never used penalty in the Fourteenth Amendment requiring the reduction of the House delegation of a state that denied or abridged voting rights (except for limited categories). The "right to vote" is actually repeatedly mentioned over and over in amendments. It is very well there, even if you want to call in an unenumerated right or something. The ultimate concern is what regulations of it are legitimate, with the amendments firmly taking some off the table. Congress has power to regulate here.

Since states are not going to stop allowing people to vote for members of the state legislature (or governors for that matter though recall elections might be a problem and now and then some local official might be targeted, though if done for racist or something reasons, that too is unconstitutional), the big issue here in theory is presidential elections.  The new Georgia law possibly could be used to throw into question a presidential election somehow.  But, actually picking the nominee as compared to tooling around a close election (which 2020 was)?  That would be a striking threat to long-held assumptions.  Still, yes, the Electoral College is the one area a "right to vote" is more discretionary.   

Even there, Congress has some power, if only to basically avoid the sort of electoral challenge that arose this January.  Just what the 12A and so forth requires is probably open to debate, but there is a reasonable understanding that Congress could simply accept the electoral votes, not in effect in theory have the power to second guess them like a majority of Republicans in the House and a few in the Senate wanted to do for two states.  And, again, if somehow the people's right to vote is taken away by states, the second section of the Fourteenth Amendment can kick in.  

The Electoral College has screwed us in the 21st Century (including 2000), but even there, the "right to vote" is not lacking in various respects. Anyway, voting rights is a major concern in front of us. It turns out to be more than four things.