"The Earth is round. Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election for President and Vice President of the United States" Smartmatic v. Fox

Smartmatic, a maker of election technology is suing For News for knowingly broadcasting lies about their company for financial gain.  

Fake news is not new. In a post about Misleading Headlines I wrote about serious problems rife in the US from 1898 when there was a circulation feud between the Hearst's and the Pulitzers.  

But Fox News goes well beyond headlines.  The  whole story is often totally made up.  The First Amendment has been interpreted to give a lot of leeway for legitimate news media to make honest, even sloppy  mistakes.  

However, as you read the allegations in this case (and based on everyone's personal experience either with Fox News directly or on the ever-present clips on different social media) it's clear that Fox has often pushed the protections of the First Amendment to the point that they are actually causing harm to people and companies and endangering democracy, by labeling fiction as non-fiction.

Distinguishing Free Speech from Slander and Libel

So how do we balance free speech and slander and libel?  There have always been laws against slander and libel.  Smartmatic is claiming that Fox and its on air spokespersons not only made patently false claims, but they knew that they were doing it, and in doing it they did Smartmatic irreparable harm, for Fox's financial gain and to help reelect Trump.  

Findlaw outlines the key elements of libel (written) and slander (spoken).

To prove either type of a defamation lawsuit, plaintiffs must prove the following elements:

• The defendant made a false and defamatory statement concerning the plaintiff;
• The defendant made the defamatory statement to a third party knowing it was false (or they should have known it was false); and
• The publisher acted at least negligently in publishing the communication.

It's clear Smartmatic's lawyers know these basic principles of the law and there charges go well beyond claiming damage to Smartmatic and intended gain for Fox.  I'd note I had some personal education on this topic when an attorney sent me an email threatening to sue me if I didn't take down a post the speculated about whether his client was a scam.  Fortunately I had access to a great Alaskan First Amendment attorney who wrote a letter in response.  

Here's a link to the suit Smarmatic filed.  And excerpts below are taken from the documents filed today.

 

 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

--------------------------------------

SMARTMATIC USA CORP., SMARTMATIC INTERNATIONAL HOLDING B.V., and SGO CORPORATION LIMITED,

Plaintiffs, -against-

FOX CORPORATION, FOX NEWS NETWORK LLC, LOU DOBBS, MARIA BARTIROMO, JEANINE PIRRO, RUDOLPH GIULIANI, and SIDNEY POWELL,

Defendants.

The basic narrative of the case is that Fox knowingly made up facts defaming their company for Fox to gain a bigger audience and it did great damage to the company. 

INTRODUCTION1

1. The Earth is round. Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election for President and Vice President of the United States. The election was not stolen, rigged, or fixed. These are facts. They are demonstrable and irrefutable. [emphasis added]

2. Defendants have always known these facts. They knew Joe Biden and Kamala Harris won the 2020 U.S. election. They knew the election was not stolen. They knew the election was not rigged or fixed. They knew these truths just as they knew the Earth is round and two plus two equals four.

3. Defendants did not want Joe Biden and Kamala Harris to win the election. They wanted President Donald Trump and Vice President Michael Pence to win re-election. Defendants were disappointed. But they also saw an opportunity to capitalize on President Trump’s popularity by inventing a story. Defendants decided to tell people that the election was stolen from President Trump and Vice President Pence.

The Table of Contents gives you the general narrative of their case.  I'll give you just a taste of what's there.  Again, the link his here.

 

FACTUAL ALLEGATIONS ....................................................................................................... 12

1. Smartmatic’s Role as an Election Technology Company ..................................................... 13

   1. Smartmatic grew from a small start-up into a successful multi-billion-dollar
      enterprise. ....................................................................................................................... 14

   2. Smartmatic’s success was built on its reputation for secure, reliable, and auditable election technology and software. .................................................................................. 18

   3. Smartmatic had a relatively small, non-controversial role in the 2020 U.S. election. ... 19

      1. Los Angeles County introduced a new Voting Solutions for All People initiative for the 2020 U.S. election................................................................................................ 19

      2. Los Angeles County selected Smartmatic to contribute election technology and software to the Voting Solutions for All People initiative. ....................................... 22

      3. Smartmatic’s involvement with Los Angeles County was a success. ....................... 23

   4. Smartmatic quietly celebrated its success in Los Angeles without knowing what was coming from Defendants. ............................................................................................... 25

2. Defendants’ Disinformation Campaign Against Smartmatic ................................................ 27

   1. Mr. Giuliani and Ms. Powell created a story about Smartmatic. ................................... 30

   2. Fox Defendants joined the conspiracy to defame and disparage Smartmatic and its election technology and software. .................................................................................. 32

   3. Defendants engaged in a widespread disinformation campaign against Smartmatic and its election technology and software. ............................................................................. 34

   4. Defendants used multiple platforms to spread disinformation....................................... 57

   5. Defendants presented their statements about Smartmatic as facts, not opinions ........... 67

3. Defendants’FalseStatementsandImplicationsAboutSmartmatic......................................78

   A.  Defendants falsely stated and implied that Smartmatic’s election technology and software were widely used in the 2020 U.S. election..................................................... 79

   B.  Defendants falsely stated and implied that Dominion used Smartmatic’s election technology and software during the 2020 U.S. election................................................. 84

   C.  Defendants falsely stated and implied that Smartmatic fixed, rigged, and stole the 2020 U.S. election for Joe Biden and Kamala Harris.............................................................. 92

   D.  Defendants falsely stated and implied that Smartmatic sent votes to foreign countries for tabulation during the 2020 U.S. election. ............................................................... 102

   E.  Defendants falsely stated and implied that Smartmatic’s election technology and software were compromised or hacked during the 2020 U.S. election. ....................... 106

   F.  Defendants falsely stated and implied that Smartmatic was previously banned from providing election technology and software in the United States. ............................... 112

   G.  Defendants falsely stated and implied that Smartmatic is a Venezuelan company founded and funded by corrupt dictators from socialist and communist countries...... 115

   H.  Defendants falsely stated and implied that Smartmatic’s election technology and software were designed to fix, rig, and steal elections. ................................................ 122

IV. Defendants Acted with Actual Malice and Ill Will Towards Smartmatic........................... 132
    A.    Defendants had no support for their statements and implications regarding
Smartmatic. ................................................................................................................... 133
Defendants did not have sources to prove something that did not happen.............. 134
Fox Defendants eventually admitted they had no basis for their statements and implications about Smartmatic. ............................................................................... 135
Fox News knew its anchors and guests lacked a basis for their statements and implications about Smartmatic. ............................................................................... 143
Defendants purposefully avoided learning the truth about Smartmatic and its election technology and software. ......................................................................................... 147
B.  Defendants had access to information showing their statements and implications about Smartmatic and its technology and software were factually inaccurate....................... 148
Defendants knew Smartmatic’s election technology and software were not widely used in the 2020 U.S. election (and were not used in contested states). ................. 149
Defendants knew Smartmatic’s election technology and software were not used to fix, rig, or steal the 2020 U.S. election. ................................................................... 160

That's enough to get you started.  The Roberts court has given a lot of deference to the First Amendment, but it seems this case is going to help the draw some lines.  And if the Plaintiffs are successful, there will be a new weapon against fake news.   This could be an important step in the fight against fake news.  

Dear Senator Dan Sullivan:

First, let me thank you working with Senators from both parties to get the Oceans Act passed.  This is a big achievement.  But it would mean nothing if President Trump were to succeed in overturning our democratic election.  As you know the courts have resoundingly rejected about 60 challenges made by Trump because there was no evidence presented to back up his claims.  And yesterday we learned that Trump called the Republican Secretary of State of Georgia and told him to find some 11,000 votes to overturn Biden's win in Georgia, with a threat of legal action if he didn't.  

Today I urge you to strongly endorse the certification of Biden's election and to denounce those senators who are threatening to challenge the election.  There is no doubt that Biden has legitimately been elected president of the United States.  Not denouncing those challenging this election merely feeds the white nationalists and others who want to reestablish 'the good old days' when White men were never challenged by women or people of color.  We need to resoundingly denounce these actions.  

I try to imagine what calculations you are making that prevent you from taking bold action on this issue.  I watched you take the oath yesterday to defend the Constitution.  This certification of the vote is one of the most important opportunities you have to do that.  To end the alarming talk of a number of people in your party, including sitting US Senators.  

I'm not willing yet to believe that you support this seditious action and would welcome an armed resurrection and coup to keep Trump in power.  

The only concern of yours that makes any sense at all to me is that you fear Trump supporters finding a candidate more amenable to their anti-democratic, racist views to run against you in 2026.  But you have nearly six years until you are up for reelection.  The world will be significantly different by then.  And probably most important on this point, Alaska will be using Ranked Choice voting.  There will be no Republican primary where you can be defeated by far right extremists in your party.  

As part of your campaign you told Alaskans that you are a Marine.  We expect you to show the courage of a Marine.  We expect you not to hide in the back of the crowd, but to stand up front to resoundingly defeat this challenge to our democracy.  

Readers can send their own email to Senator Sullivan here.  

Election Thoughts 3: A seasoned Ghanaian journalist decided to cover Tuesday’s U.S. election in the same manner the Western media tends to cover Africa’s

 These aren't my thoughts.  A friend who lives in Asia sent it to me and it's the kind of thing I love because it turns everything around from what we normally see and how we normally think.  

I'll give you some excerpts and you can read the whole thing here.

"AMERICA’S TRIBES GO TO THE POLLS AMIDST UNCERTAINTY

By K. Sakyi-Addo

Africa News Network (ANN).

Millions of American tribesmen and women are voting today to elect a president and lawmakers.

Two white tribal elders are contesting to rule the Covid-ravaged wheat-exporting former British colony for the next four years. They are the incumbent Donald J. Trump of the ruling Republican Party and Joseph R. Biden of the opposition Democratic Party, both in their seventies.

Due to the levels of illiteracy, candidates are represented on the ballot by animals, the elephant for the Republicans and a braying donkey for the Democrats.

Over 230,000 people have died of covid, more than any country in the world, leading to widespread poverty and joblessness unseen in the vast country in a century.

Millions are dependent on food rations, homelessness is rife, and open defecation common in some provincial capitals. . . .

". . .The country has a curious system of democracy adopted in 1788 in which candidates are sometimes elected with vastly fewer votes. In 2016, Mrs Hillary Clinton, an elder from the former ruling Democratic Party had three million more votes than Mr. Trump, but was declared the loser much to the bewilderment of democracy watchers elsewhere in the world.  She would have been the first woman to lead the country in more than 200 years. 

Tension has been high in the run-up to the polls with armed gangs, such as the Proud Boys militia, threatening to reject the results should their candidate lose. 

Some tribal militiamen were caught recently plotting to abduct the head of Michigan province and stage a military coup. 

 Over the weekend, members of the opposition accused gun-totting, flag-waving ruling party supporters from the Texan tribe of trying to push their candidate’s vehicle off a cliff. 

 Earlier this year, dozens of towns across the country witnessed riots sparked by discrimination against black tribespeople. Their ancestors were shipped from west Africa in their millions over a four hundred year period to work as slaves on cotton plantations."  

 ". . . African analysts believe the African Union or Ecowas should send observers to watch the polls to ensure they are free and fair. 

It is not known whether the UN has taken measures to parachute peacekeepers in, should civil war break out in the increasingly isolated territory. "

  Unfortunately, it appears the link only gives you part of the article, but this should be enough to get the flavor.  Perhaps it would be helpful for Trump supporters and Biden supporters to try to write news stories from the perspective of their opponents.  

Election Thoughts Post 1 - Why Did Biden Get Only 771,884 Votes When Kentucky Has 1.67 Million Registered Democrats? [UPDATED]

 I don't know the answer.  I don't know much about Kentucky at all.  But from far away it seems odd.  (Kathy in Kentucky, any insights you can share would be appreciated.  And, btw, it turns out my post on when states can count wasn't totally accurate. Kentucky wasn't last in vote counting.  Alaska, while legally allowed to count ballots starting after the polls closed, chose to wait a week to do so. Or maybe Kentucky just chucked all the mail-in votes.) [UPDATE Nov 8:  Be sure to see Kathy's comments below.  It answers a bunch of my questions.]

Biden got just 771,884 votes in Kentucky.

Here's the official vote tally from the LA Times:

And from the Kentucky election website, here are the numbers of registered voters.  There are 1.67 million Democratic voters. I cut it off so the numbers would be large enough to see here, but you can go see the original at the Kentucky website.

That means less than half the Democratic voters voted for Biden.  

Given that this is Senate Majority Leader Mitch McConnell's home state and he's shown he's willing to do anything to keep his seat and his majority to thwart Democrats since Obama was first elected, I think this ought to be looked into to be sure that there wasn't serious election irregularities.  

Newsweek reported in 2019:

"Senate Majority Leader Mitch McConnell squashed two bills intended to ensure voting security on Thursday, just one day after former special counsel Robert Mueller warned that Russians were attempting to sabotage the 2020 presidential elections "as we sit here."

McConnell said he wouldn't allow a vote on the bills because they were "so partisan," but, as previously reported, earlier this year McConnell received a slew of donations from four of the top voting machine lobbyists in the country."

Here's a longer New Yorker article entitled Mitch McConnell is Making the 2020 Election Open Season for Hackers

This post was in response to a Tweet that pointed out the numbers.

[Note:  There are so many things to write about on the election.  I'm resisting my natural tendency to try to integrate 20 different threads into one comprehensive post.  Instead I'll just post on relatively discreet topics.  I'll either let the reader pull them all together or maybe at the end I'll figure out a way to connect all the dots.]

Here's Why I'm Calling This For Biden

 Despite all the handwringing, and recognizing that people don’t want to repeat their dashed expectations of 2016, I think all the signs point to Biden winning comfortably.  I know the media explore all the possible hidden traps - and some are there - but the media make money from tension and uncertainty.  

Basically, 2020 is VERY different from 2016. 

1. Trump was a con-artist who billed himself as an exceptionally talented business man in 2016 and people who were tired of ‘gridlock’ thought they should give him a try.  Drain the swamp and all that.  But the American people know a lot more about Trump now.  They only people still with him are those who 
1. Are like, or think they are like, Trump
1. The greedy - tax cuts and good stock market have increased their wealth
2. The needy - those who need a father figure to tell them what to think and do, to nurse their prejudices and encourage their hate, to protect them from their worst fears (includes members of evangelical and fundamentalist churches who support Trump and gun fetishists)
3. The racists and the misogynists and the abusive
4. Those who don’t believe in democracy
2. Are strongly anti-communist or anti-socialist - including those who came to the US from communist and/or socialist countries, and people who have no idea what those words mean, but are strongly against them.
3. Die-hard Republicans for whom voting for a Democrat would be an act of betrayal
2. Now we know about misinformation campaigns, infiltration of social media, Russian interference and other machinations to turn voters for Trump and against Hillary Clinton
3. The anti-Trump side has gained new recruits
1. People who didn’t realize how bad Trump would be  and didn’t vote or voted for 3rd party candidates are now ready to go vote like it matters
2. The constant barrage of videos of blacks being killed by cops, being Karened, plus Trump’s own support of white supremacy and other racist acts and the resulting Black Lives Matter protests have mobilized many non-voters of color and made many white folks more understanding of the level of racism in the US and the danger of another four years of Trump.
3. The many books unmasking the Trump myth, from scholars, from Trump family members and long time employees, from Trump appointees changed what people know about Trump.  And while most people don’t read books, key passages have been repeated over and over again in the media and social media.  All these have peeled off people who voted for Trump and converted them to non-voters or Biden voters
4. The Parkland Students movement has mobilized youth to register to vote.  They helped speed up the unraveling of the NRA and shown high school students they have power.
5. Floridians gave felons the right to vote and while Republicans are blocking their participation as best as they can, still tens of thousands can now vote.  
6. Climate change activists and Native Activists and others are all bringing new voters out.
7. There's a collection of 'traditional' Republicans who are working hard to defeat Trump, using the same PR techniques they've used in the past to defeat Democrats (and I'm worried about who their targets might be in the future)
4. COVID-19 has exposed all Trump’s flaws and incompetence as a president and reports say that this is mobilizing some of the older white vote away from Trump, as well as all those affected directly by the virus - essential workers, those who have gotten sick, and the families of those of have been sick or who have died
5. Biden is a very different candidate from Clinton
1. He’s not a woman.  As bad as it reflects on Americans, women candidates are judged differently from men and it costs them votes.  
2. He’s not Hillary.  She’s a very competent wonk, but didn’t come across as likable to many.  She also carried the baggage of the Clintons’ post presidency wealth acquisition.  (But also remember she got 3 million more votes than Trump did.)
3. Clinton had to fight constant attacks about Benghazi and emails.  The Hunter Biden attacks haven’t stuck.  Partly because we understand a lot more about Trump’s fake news industry.  
4. Biden is the opposite of Trump.  He’s decent, he’s compassionate, he’s got loving family and friends.  He makes as good of a uniter candidate as we could want in contrast to Trump’s divisiveness.
6. The Democrats have paid much more attention to the electoral college this time round
7. The Democrats have a huge team of lawyers ready to fight Trump challenges to the election.  There will be no Gore concession unless they are sure he lost the election fairly.
8. There’s been record numbers of early voters and mail-in voters - and as I’ve tried to outline above, the pool of anti-Trump new voters is much bigger than pro-Trump voters.
9. Democrats have raised unheard of money from online campaigns with relatively small average contributions which demonstrates a level of fear and activism we haven’t seen for a long time.  
10. The polls are in Biden’s favor, even in the swing states.  Some traditionally Republican strongholds are polling close.  

That doesn’t mean that Biden can’t lose (so, yes, if you haven’t voted yet, you still need to go vote.)   It doesn’t mean that Russians or Republicans haven’t schemed to hack voting machines so they turn every sixth Biden vote into a Trump vote.  That’s relatively easy to program and hard to detect if it’s done in just a few precincts.  But there are ways to spot such efforts.  

And it doesn’t mean that Biden will be a great president.  He’s got a pandemic to deal with.  He’s got the destruction of many government agencies to repair.  He’s got a volatile Trump out there who’s addicted to attention and adulation and would like nothing better to make Biden fail.  And if Democrats don’t flip the Senate, he’s got to fight for every inch.  

But it looks to me that all the little signs have lined up in Biden’s favor.  For him to lose a lot of things have to go haywire, and if that happens it will suggest that there were dirty tricks we hadn’t anticipated.  Everything that Trump says about his campaign - that if he doesn’t win it’s because the election was stolen - is actually the truth about the Biden campaign.  

Best Political Ad, And Some Shabby Ones

 Since all my 'viewing' is online, I don't see the political ads on television, unless someone puts them online.  So my sample is small.  But the Jaimie Harrison ad below really impressed me.  It's not an attack ad and it goes beyond platitudes about helping the poor or lowering taxes (though it's still a feel good ad, not a policy ad.)  AND it's visually really cool.  His campaign against sitting Judiciary Committee chair Lindsay Graham has attracted a lot of money from outside of South Carolina, so he's got the cash to produce better than average commercials.  

Check it out.  Then we'll look at some local campaign mail I got that isn't so good.

Whether you need access to affordable healthcare, high-speed broadband to learn and work from home, or someone to pave your dirt road, I'm going to fight for you in the U.S. Senate. pic.twitter.com/UgoQOtVCnT

— Jaime Harrison (@harrisonjaime) October 16, 2020

Now for the local stuff.  I'd note, that in both cases, these are races outside of my own local district so I'm not sure why I'm getting them.  

A.   "Chris tuck is attacking your right to choose"

Chris has been in the State House at least ten years.  He's a Democrat and has had party leadership positions.  

This ad comes from Republican Katherine Henslee who is challenging him in the election.  I scratched my head when I read this.  A Republican is attacking a Democrat for being anti-abortion.  I called the candidate it was from.  

Steve:  Why are you sending out attack ads about Chris Tuck on abortion?

Katherine:  I'm surprised you think it's an attack ad.

Steve:  Well you attack his position on abortion. 

Katherine:  It's the truth. 

Steve:  So, are you pro-choice?

Katherine:  No, I'm pro-life.

Steve:  Then why are you attacking him on his pro-life stance?

Katherine:  Well, he doesn't support pro-life legislation as strongly as I would.  

Steve;  But I suspect he probably aligns a lot better on most of the other issues with pro-choice voters than you do, don't you think?

Basically, she's trying to sow seeds of doubt among pro-choice voters.  I couldn't get hold of Chris, but another person involved in Democratic politics told me that he is, personally, against abortion, but he's a Democrat and doesn't push against abortion in his political role.  

I'm not sure what sort of effect this has on voters.  Probably not much, but it may be like the attacks on Hillary Clinton and now Biden, to try to make some Democratic voters just leave their ballots blank rather than vote for Chris Tuck.  

My Opponent's left-wing Antifa Supporters

The most effective part of this letter is the photos of defaced signs.  But we don't know who did this. And there's nothing to suggest that Revak knows either.  There's even the possibility that he did this himself, though I wouldn't make that claim without more evidence.  

But the rhetoric looks like it's straight out of national Republican campaign book:

• "Left wing Antifa supporters"
• "Organizations that work hard to defund the police and bail out violent rioters"
• "We will beat him and Antifa"
• "will stop at nothing to steal this district from Republicans.  Their thugs have come out in force."

And from the back page:

• "My opponent has support from outside money and influence. While our opponents want to suppress our resource development, limit our economic growth, and waste our savings, I'm fighting for what is best for the future of Alaska and for you"

1.  Antifa.   Wow!!  You'd think Antifa folks are running all over Alaska, rioting, and destroying property.  This is pure Republican  propaganda.  

Basically, the most 'real' thing about Antifa is how the Republicans the word to create a "Left" boogie man  that's  rioting and threatening to decent people.  It's part of Trump's strategy to throw whatever is said about him back onto his opponents.   But as this Washington Post article outlines, 

• there is no monolithic organization called Antifa; 
• it doesn't mastermind violence at BLM rallies;
•  it's not affiliated with the Democratic party; 
•  it's not funded by billionaires like George Soros; and 
• they aren't 'the real fascists.'

At best it's an idea that people scattered around the US identify with in opposition to the fascist direction of the far right.  But again, Trump will even take a name that is "anti-fa(scist)" and say that it is fascist.  

And there have been NO riots or even rowdy BLM marches in Anchorage or other parts of Alaska.  Only benign peaceful events.  Clearly this is nationally directed rhetoric by people who know nothing about what's happening in Alaska.  If Alaskan's did write this, it's based on national talking points, not Alaskan reality.

2.  "Steal this district from Republicans" assumes that a district is owned by one party or another. But each district belongs to all the constituents of the district.  There are no "Republican" owned districts for Democrats or Independents to steal.  I find this particularly invidious.

3.  Outside money and influence.  

Actually, "outside" was written with a small 'o' suggesting he didn't mean Outside of Alaska. But it doesn't matter, since pretty much all candidates have money from 'outside.'  Nationally, it's clear that Senators from red states represent tens of millions fewer voters than Senators from blue states, but have more Senators, as this chart from 538 shows:

So people in the more populous blue states recognize that ideological Supreme Court nominees get approved in the Senate because small state Senators (each state gets two regardless of population) representing a minority of the US population, make up the majority of US Senators.  And so they know that if they want their majority views to prevail in the Senate, they have to contribute to Senate races outside of their own states.  

And both Republicans and Democrats only complain about Outside money when it's their opponents Outside money.  I haven't hear Revak complain about all the Outside money Governor Dunleavy, who appointed Revak to his Senate seat, raised.  

4.  Defund Police

Another national Republican talking point.  In Anchorage,  conservative Mayor Sullivan defunded the police during his terms and more liberal Mayor Berkowitz added back police.  And nationally, the argument isn't to simply defund police, but rather to steer money to people and programs better equipped to deal with the causes of crime and defusing conflicts.  The argument is that the police have to deal with too many issues they aren't trained or equipped to handle.  Like poverty, addiction, and mental health issues.  Fund experts and programs dealing with those issues and free the police to handle the real criminals.  

That's it, a review of the campaign media of three candidates that came my way.  

LA Times Article Looks At Republican Candidates Reversing Their Anti-ACA Stances - Including Dan Sullivan

Alaskans have all recently watched as Senator Dan Sullivan was forced by a leaked video to take a strong Twitter stand against Pebble Mine.  In the video, Pebble executives say that Sullivan is in their corner, but keeping quiet before the election. 

An LA Times article today says Sullivan, along with other Republicans like Iowa's Joni Ernst, are backing off their earlier anti-ACA stands.  

"WASHINGTON — Contempt for the Affordable Care Act — Obamacare — was so central to Sen. Joni Ernst’s 2014 election campaign that the Iowa Republican, in a TV ad promising she’d “unload” on the law, pulled out a handgun and fired repeatedly. “Give me a shot,” she asked voters.

Six years later, the first-term senator is battling for reelection, and she’s holstered her gun.

Ernst is not alone. Earlier this month, she joined fellow Republican Sens. Cory Gardner of Colorado and Dan Sullivan of Alaska — two other would-be assassins of the 10-year-old healthcare law who are now fighting for their political survival — in breaking with their party to support Obamacare on the Senate floor. They voted with Democrats on a measure opposing a Republican-backed case against the law that’s now before the Supreme Court.

As that vote showed, endangered Republicans are frantically trying to pivot away from the “repeal Obamacare” slogans that served them well for much of the last decade. Those are now a liability amid a jump in public support for the healthcare law.

Candidates also are playing down the long-standing legal challenge initiated by a coalition of Republican-led states that’s reached the Supreme Court. And from President Trump on down, they claim to be guardians of Obamacare’s most popular provision — a guarantee of insurance coverage for people with preexisting conditions — though that mandate would fall with the rest of the law if the court’s conservative majority sides with Republicans."

As you can see from the chart below, Alaska is one of only four states not involved in the case, either for or against the ACA.  

The chart comes from a Kaiser Family Foundation webpage that explains the court case and who all is involved.  Click on the chart to enlarge and focus it.

But I'm more troubled by unflagging loyalty to Trump as one of the bots on the Republican side of the US Senate.  He acts like a kid who doesn't want the teacher to call on him.  Sort of like the Pebble guy who said he's trying to lie low until the election is over.  And while he said he didn't vote for Trump in 2016, he now says he will.  

One has to wonder who is holding all those Republican Senators in line and voting to confirm Amy Barrett's appointment to the Supreme Court.  Senator Whitehouse gave the most insightful presentation on that in the Hearings and I'm hoping to get up a post about that soon.  I'll link to it here when I do.  

[UPDATE October 17, 2020:  Here's another article from Salon:  Alaska GOP senator routinely voted for policies that benefited family's chemical company]

Revisiting Originalism

 As I listen to the Supreme Court nomination hearings, it seems like this is a good time to revisit a previous post on originalism that I wrote after Justice Scalia's death.  From February 16, 2016.  This was the Supreme Court opening the Republicans, led by Senator McConnell, argued should not be filled during a Presidential election year.  An argument that we now clearly see was simply rhetoric to justify not filling the seat, not an argument made based on principle.  We know that since they are ignoring that now, adding more rhetoric to justify their 180˚ switch, adding the footnote about a president and senate of the same party.  Even though millions of people have already voted in the current presidential election.  Below is the previous post.

I Think Scalia's Originalism Is Like Intelligent Design Of Constitutional Theories

When Scalia died, I realized that I hadn’t seriously examined his ‘originalist’ theory for interpreting the constitution. I knew that he was outspoken, that I disagreed with the most publicized decisions, but also that he was a good off-the-court friend of Ruth Bader Ginsburg, so there had to be more depth than I was seeing.

I was inspired in part by the way Scalia and Ginsburg, so very different in their understanding of the cases which impacted their interpretation of the constitution, liked each other and spent time together outside of the Court.  From an NPR piece:

"They liked to fight things out in good spirit — in fair spirit — not the way we see debates these days on television," NPR's Nina Totenberg recalled on the NPR Politics Podcast. And Ginsburg admitted once that Scalia made her better. One night last year when the two justices appeared onstage for an interview together in Washington, D.C., Ginsburg talked about a time when Scalia showed her his dissenting opinion in a case before she had finished the majority opinion. "I took this dissent, this very spicy dissent and it absolutely ruined my weekend," Ginsburg said. She made some tweaks to her own argument.   [emphasis added]

So I started a blog post looking up ‘originalist’ theory. I thought that while I was inclined to be skeptical, I ought to at least look at it more seriously. I did. I’d like to present here what I’ve found.

Overview of Conclusion

For those who scan posts in 60 seconds or less - my conclusion is that ‘originalism’ has, as one writer put it, good PR, but basically it’s just old wine in a new bottle.  Like creationism, the old strict constructionist theories of law had been abandoned to allow judges to deal with the many kinds of ambiguities in the law, such as conflicting laws, unclear language, situations unanticipated by the law, etc.  A number of canons developed over the years to help judges deal with statutory interpretation. 

In my, albeit brief, review of originalism, I think, at this point, that originalism is something like Intelligent Design which came into being as a religious alternative to evolution, one that smells suspiciously like creationism, but packaged in what its authors hoped would be a more palatable package.   Furthermore originalism has the public relations value of sounding like its fidelity to the constitution is greater than living constitutional theories. 

Ginsburg’s approach, living constitutionalism, follows the traditions of case law to find ways to deal with inconsistencies in law, generalities in the constitution, and modern situations unanticipated by the constitution.  It isn't simply the bias of the judge substituted for the constitution.  Rather, when  the text of the constitution isn't adequate to resolve a case, a judge then uses other long standing practices to resolve the conflicts and determine a decision that is consistent with the constitution.   Living constitutionalists at least acknowledges that it breathes new life into the constitution in order to deal with situations that weren’t and couldn’t have been anticipated 200 years ago when the constitution was written.

 Scalia’s faction, on the other hand, makes a pretense that it is adhering to the real original meaning of the constitution.   I’m left with the conclusion that this originalist claim to some sort of constitutional authenticity is hollow. 

The rest of this post explains why I believe that. I’m not claiming to be a constitutional scholar or to have read all the articles on this, but I’ve read enough that I’m seeing the same arguments repeated, or I’m seeing very esoteric stuff, that may have some relevance to finer points, but doesn't seem to shed light on the basic conflicts. 

Looking At Originalism

There's no way I can go into all the intricacies in a relatively short blog post.  You can read a bit more here  for a fairly light overview (with an unfortunate don't-worry-about-it, all's-well-that-ends-well conclusion).  Originalism is a variation of what used to be called 'strict interpretation' theory which argued that one must read the law strictly and follow what it says.  My administrative law book in the 1970s dismissed this view of the law as hopelessly unusable because

there were often conflicting laws and you had to have a rationale for picking one over the other; 

the law may be unclear or insufficiently detailed for a particular situation

situations arise which the law didn't not anticipate.  Not only would this include absurd outcomes, but also situations resulting from new technologies not anticipated when the law was written.

Even Scalia removed himself from this extreme position (from Wikipedia):

"Antonin Scalia, the justice most identified with the term, once wrote: "I am not a strict constructionist, and no one ought to be", calling the philosophy "a degraded form of textualism that brings the whole philosophy into disrepute". Scalia summarized his textualist approach as follows: 'A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.'"

And who judges reasonable here?

To get more details on originalism and reasonableness, you can see the Wikipedia overview.  It's not the final word (nothing really is) but it gives us a sense of the concept.  And as you read it, you'll see that originalists aren't all of one mind.  For instance

The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists. The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is this view with which most originalists, such as Justice Scalia, are associated.

Understanding the mindset of a reasonable person of the late 1780s in the newly independent, but not yet united, colonies is a tricky feat.  Imagining what people thought and understood over 200 years ago is no easier than understanding the people who live in a foreign country today.  That doesn't stop people with little or no knowledge of, say, Afghanistan expounding on what the US should do there anymore than it stops jurists with perhaps a better reading of the 1780's, but no real deep understanding of the mindset of the time.

Furthermore, then, like now, reasonable persons had different beliefs.  (Imagine someone two hundred years hence choosing the reasonable person who would represent today's United States.)  Those who mattered back then were basically white, male, Protestant, landowners. (One delegate from Maryland was Catholic.)  From their view, women rightly needed their husbands'  approval to make most important decisions.  Indians were savages.  Blacks were a lesser form of human, whom their new constitution allowed to be owned by white slaveowners.   Is that really the view that Supreme Court justices today should use to interpret the constitution?

When I wrote that, I was aware that I was extrapolating from some brief overviews and knew that I hadn't read any of the scholarly articles on the subject.  Others might well have addressed my concerns.  So I googled  "definition of reasonable person for originalists."

I found this 2014 BYU Journal of Public Law article by Stephen M. Feldman which shows my thoughts are pretty close to the mark (at least his mark), though the author finds lots more that suggests that those reasonable persons back then would have used far more than the constitution and a 'the reasonable man' to make a decision.

Early judicial opinions and legal treatises reveal an eclectic or pluralist approach to constitutional interpretation; no single interpretive method dominated. Early judges and scholars invoked not only reason, but also the text, constitutional structure, framers’ intentions, original public meaning, and so on. Yet, no judge or scholar maintained that constitutional meaning should be ascertained pursuant to a reasonable-man standard."

And Feldman's comments about the difficulty of understanding the context of the time are similar to what I wrote above:

"The contexts and the contingencies engender, for a historian, the sub-texts, the layers of underlying meaning. But originalists disregard context, contingency, and subtext. Originalists, that is, use history without a “historicist sensibility” or historical understanding. (p. 299)

They want to find a fixed objective meaning when a historical text, such as the Constitution—especially, the Constitution, which forged a nation in a political crucible—is roiling with subtexts." 

And his comments about which reasonable person one would choose are also similar to what I wrote above:

"How did people relate to and interact with others? With family members? With strangers? How did people work? Were they subsistence farmers or involved in commercial transactions? How were they educated? Were they literate? How important were religious beliefs? How about gender and race? Should the researcher limit the investigation to white Protestant propertied males because they were the primary voters? With so many variables—and there are many others—the assiduous researcher would probably conclude that founding-era people were too diverse to be reduced into a hypothetical reasonable person."   (p. 302)]

But if we are going to choose a reasonable man of the period, who better to use than Thomas Jefferson?  Reading critiques of 'originalism' I came across comments he made that are directly relevant here and are called "the Jefferson problem" with originalism.  This is from Society for US Intellectual History (S-USIH):

"In September 1789 Thomas Jefferson wrote to James Madison from Paris that “the question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water.” In making his own answer, Jefferson famously declared that “the earth belongs in usufruct to the living,” that “by the law of nature, one generation is to another as one independant nation to another,” and furthermore that “no society can make a perpetual constitution, or even a perpetual law… Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.'”

Feldman's whole article tends to show much of the originalist 'theory' to be superficial and non-factual.  And he quotes others who see the whole idea of originalist theory as a fictional account of constitutional authenticity that allowed for a wide leeway of interpretation.

Feldman's whole article tends to show much of the originalist 'theory' to be superficial and non-factual.  And he quotes others who see the whole idea of originalist theory as a fiction that allowed for a wide leeway of interpretation.

"In the words of the legal historian Saul Cornell, reasonable-person originalism turns “constitutional interpretation into an act of historical ventriloquism.”   The reasonable person is a dummy who speaks words uttered by the originalist scholar or judge."

[Feb. 25, 1:30pm AKTime:  I did some edits here to remove some accidental repetition.]

Conclusions 

The variations of living constitutionalists don't nail any specific one best way to interpret the constitution.  But they do assume that the framers intended the constitution to be a living document to be interpreted in the context of the times. Surely the fact that the framers created a process to amend the constitution suggests they saw the need for changes as times changed.  Any concept, of course, can be misused by the person applying it.

But it seems that originalism has more built in contradictions than living constitutionalism, which acknowledges that it must fill in where the constitution leaves off.  It's very difficult, for example,  to figure out how, theoretically, an originalist deals with, say, both the document ratified in 1788 which considered slaves as 2/3 of a man for purposes of determining population and gave them no rights, and with the 14th Amendment adopted in 1868.   When they consider the reasonable man of 1788, do they simply cut out that part of his mind that allowed for slaves in 1788 and leave the rest intact?

Is my title metaphor too strong?  Perhaps.  Intelligent design is a religious take on life on earth as opposed to the science of evolution.  Originalism isn't that removed from living constitutionalism.  But the metaphor works, when we think about originalism as a warmed over version of strict constructionism with better public relations as a way to push a philosophy that conservatives believe will work better for them.  The fiction parts include that it  a) is more true to the constitution and b) doesn't allow for bias to color decisions. 

I've been writing, reading, cutting, and pasting, more reading, talking to folks, and I realize this post could go on forever.   As much as I'd like this to be a complete overview with a neatly proven conclusion, this is not a law review, and most of my readers will never get as far as this sentence.   And there is much I haven't read where some of what I say is already said, or corrected.  Think of this more as working notes.  I hope readers who see problems point them out and their sources.

There's lots more to cover in this topic.  I'm going to cut and paste the left overs and if time allows and the spirit is willing, I'll go further in future posts.  I'd like to look at living constitutionalism in more detail and criticisms of it.  I'd also like to look at some cases where Scalia reveals that despite originalism, he himself seems to be susceptible to substituting his bias for the constitution, such as Bush v. Gore.  And I'd also like to pursue a bigger question:  how does an individual decide which constitutional philosophy is best?  Is there some objective 'best?'  Or are there simply different approaches and there is no foolproof way to pick one. That all contain their own strengths and weaknesses?  And, is originalism a sincere effort to better interpret the constitution or was it designed as a cover to move American legal decisions to the right?  And I realize that it needn't be an either/or question.  It could be both. 

Here's a follow up post on this:  https://whatdoino-steve.blogspot.com/2017/03/as-neil-gorsuch-takes-center-stage-what.html

Biden Appears Ahead In Mail-In Ballots. When Do The States Count Them?

 I've been getting the sense that Biden voters are going to vote early, for several reasons:

• They want to make sure their vote counts
• Questions about mail delivery time
• They don't want to wait in long lines on election day, perhaps get turned away
• They don't want to be exposed to COVID-19

Trump voters, on the other hand, are more likely to vote in person on election day:

• Trump's been telling them mail-in ballots won't be counted
• They want to be sure their votes get in
• They aren't worried about COVID-19

And now I come across this Tweet with a poll that confirms this:

Enormous voting mode gap in new ABC/WaPo poll:

Early in-person/mail (58%): Biden 70%-26%
Election Day (40%): Trump 64%-32%

— Dave Wasserman (@Redistrict) October 11, 2020

Here's more information from USA Today (Oct 6, 2020)

"More than 5.6 million people have voted early in the presidential election, vastly exceeding the pace of 2016 as Democrats amass a commanding lead in returned mail ballots."

In Florida – where Republicans historically have a strong advantage in absentee voting – 497,000 Democrats have returned mail ballots, compared with 270,000 Republicans. In North Carolina, 206,000 Democrats have returned mail ballots, more than triple the 68,000 Republicans who have. Thirty-five percent of North Carolina Democrats who requested mail ballots have returned them, compared with 29% of Republicans. 

Even in ultra-conservative South Dakota, where Trump won the 2016 election by 30 percentage points, Democrats have returned nearly as many mail ballots (26,900), as Republicans (29,699). Fifty-seven percent of Democrats who requested mail ballots have returned them, a greater share than the 45% of Republicans."

A Republican analyst is quoted saying that the problem for Democrats is that more mail-in ballots get invalidated then in-person ballots.  It's true, you do have to read the instructions, put the ballot in the right envelopes, and sign the envelope, and often you need a witness signature.  And voting officials have a lot of leeway in rejecting signatures that don't match what's on record.  

How Will People React On Election Night?

When I started this post, I thought that there were states that would wait until after the election to count the mail-in votes.  And that this would lead to Trump taking an early lead and Biden votes coming in the next day or more.  

That would lead to Trump claiming victory and Trump supporters believing they got robbed when the numbers change in the following day or three.  

But before posting, I checked when mail-in/absentee votes get counted in various states.

I was wrong.  Mail-in votes get counted in all but one state on election day, starting early in the morning in some states, or after polls close in other states. 

Then there's 13 states where ballots can either be tallied starting before the election or set up to be counted, but not actually counted.  In all states, no tallies may be released before the closing of the polls on election night.  Here are the states that may start counting before election day: (All this information comes from the National Conference of State Legislatures.)

Before - no specific time

• Connecticut - "At the discretion of the local registrar of voters."
• Kansas - 'Prior'
• Ohio - Scanned before, but not disclosed
• Oklahoma - "Prior' with approval of Secretary of State.  
• "When counting occurs before the election, the county election board shall remove the election results storage media from the voting device, without obtaining a printout of results, and seal ballots counted that day in a transfer case secured by the sheriff until the time the board next meets to count. Results cannot be reported earlier than 7 p.m. on Election Day."
• Utah - 'Before'
• Virginia - 'Before'

Before - with a specific earliest date

• Florida - 22 days before
• Colorado - 15 days before
• Arizona - 14 days before
• North Carolina - two weeks before 
• Oregon - 7 days before
• Montana - 1 day before
• Nebraska - 24 hours before

On Election Day

The times range from 7am on election day until after polls close.

This includes all the other states EXCEPT Kentucky which says:

"Counting begins after all absentee ballots have been processed."

The Kentucky absentee voting pages says:  

"Mail ballots must be postmarked by Election Day, Nov. 3, and received by Nov. 6."

Since they can't can't count mail-in ballots until they are all processed, and they can't process them all until they are all in,  this would mean, following the rules of logic,  they can't count them until November 6 at the earliest.   

So, only Kentucky appears to have a system which could result in the bleaker scenario I'd originally feared - where Trump votes would pile up on election night, possibly leading Trump to declare victory before most votes were actually counted.  And since Kentucky is a red state, it isn't one that the rest of us will have to wait for to know the results of the presidential election.  If Kentucky goes blue, then most other states will have gone blue already.  Though McConnell's seat, if we are lucky, might take a while to be determined.  

So it looks like my initial concerns about early tallies giving Trump a big lead are unfounded.  States (except Kentucky) will be able to count mail-in ballots by election day.  In some cases starting early in the morning.  A quarter of the states will be able to count (but not disclose the results) prior to election day.  And with so many mail-in votes already arriving at election offices, it would appear there won't be a huge last minute deluge of absentee ballots.  

I just dropped off our ballots at the drop off box in front of the election office.

My Alaska Mail In Ballot Has Seven Candidates For US President

 We got our mail in ballots the other day and when I opened mine I was surprised to see so many presidential candidates on the ballot.  

Ballotpedia lists six of these candidates.  James Janos, it turns out, was nominated by the Alaska Green Party.  Ballotopedia lists another Green Party candidate - someone nominated by the national Green Party.  

But since none of these candidates was invited to the presidential debates, I'll give Alaskans a bit of background on the lesser known candidates with links to more information.  

Roque De La Fuente

"De La Fuente was a 2018 Republican candidate who sought election to the U.S. Senate from California, Delaware, Florida, Hawaii, Minnesota, Rhode Island, Vermont, Washington, and Wyoming.[2][3][4] He was defeated in those states' primary elections. The United States Constitution does not establish specific residency requirements for United States senators, stipulating only that a senator must be an "inhabitant of the state for which he shall be chosen." Residency requirements vary by state."

James G. “Jesse Ventura” Janos

"James G. “Jesse Ventura” Janos – United States President – Green Party Nominee

Other:

Jesse Ventura is a former professional wrestler, actor, political commentator, bestselling author, naval veteran, television host, and politician who served as the 38th governor of Minnesota from 1999 to 2003."

Jo Jorgensen

"Jo Jorgensen is the 2020 Libertarian Party presidential nominee. She was nominated at the Libertarian National Convention on May 23, 2020, becoming the first woman to lead the party's presidential ticket.[2][3] Her running mate is entrepeneur and podcaster Jeremy "Spike" Cohen.

Jorgensen framed her campaign as an alternative to Democratic and Republican policies she said created trillion-dollar deficits and led to involvement in expensive and deadly foreign wars. "Big government mandates and programs created these problems. To solve them, we need to make government smaller – much, much smaller," her campaign website said.[4]"

Brock Pierce 

"Brock Pierce is an independent candidate for president of the United States in 2020.

Pierce is an entrepreneur with experience in Blockchain technology and digital currency. He co-founded the cryptocurrency Tether. He also launched several philanthropic efforts, including the Brock Pierce Foundation and Integro Foundation.[1]"

 

Don Blankenship

"Don Blankenship – United States President – Alaska Constitution Nominee

Other:

Don Blankenship is a coal miner who rose to become CEO of Massey Energy Company. Blankenship said, 'I am running for President to let people know how dire the American situation is and what must be done to fix it. We cannot survive as a country if we do not stop the Republican and Democrat nonsense.'”

I have voted third party on occasion, knowing that my vote in Alaska would have no impact because I live in a red state.  But this year, it doesn't matter.  Every vote counts, even if it isn't reflected in the electoral college.  

Why The Emirates and Bahrain Are Recognizing Israel? Seth Abramson Outlines Red Sea Meeting in 2015 To Coopt Trump

Today it was announced that Israel and Bahrain have agreed to diplomatic ties.  This follows a similar recent arrangement between Israel and the United Arab Emirates.  

I'm sure these deals are happening now, shortly before the election to spruce up Trump's diplomatic victories.  But Seth Abramson has outline a well documented story of how Trump  is being played by those countries rather than Trump arranging these deals.  

So here are a few quotes from Seth Abramson's book, Proof of Conspiracy which begins with this chapter summary:

"In late 2015, after Donald Trump has formally announced his candidacy for president, a geopolitical conspiracy emerges overseas whose key participants are the leaders of Russia, Israel, Saudi Arabia, the United Arab Emirates, Bahrain, and Egypt.  These six men decide that Trump is the antidote to their ills:  for Russia, U.S sanctions;  for Israel, the lack of Arab allies;  for Saudi Arabia, the United Arab Emirates, Bahrain, and Egypt, perceived threats emanating from Iran.  The conspirators commit themselves to doing what is necessary to ensure that Trump is elected.  Trump's presidential campaign is aware of and benefits from this conspiracy both before and after the 2016 election." (p. 1)

Here's a bit more from page 2:

The story of the Red Sea Conspiracy begins with a man named George Nader.  As reported by Hearst in the Middle East Eye, toward the end of 2015 Nader - then an adviser to the crown prince of Abu Dhabi, Mohammed bin Zaey al-Nahyan (know as "MBZ") - convened, with his patron's permission, a summit of some of the Middle East's most powerful leaders.4  Gathered on a boat in the Red Sea in the fall of 2015 were Mohammed bin Salman (known as "MBS:), deputy crown prince of Saudi Arabia, who would shortly become the heir apparent to the throne of the Saudi Kingdom;  MBZ himself, by 2015 the de facto ruler of the Unite Arab Emirates;  Abdel Fattah el Sisi, the president of Egypt;  Prince Salman bin Hamad, the crown prince of Bahrain; and King abdullah II of Jordan.  Nader, the improbable maestro of these rulers' clandestine get-together, intended the plan he posed to the men to include the nation of Libya, but no representative from that nation attended the gathering.5 (p.2) 

The intent of MBZ and MBS according to Abramson (and all the claims he makes are well footnoted with reports from various public sources) is to rearrange the Gulf Cooperation Council (GCC) by replacing Kuwait, Oman, and Qatar with Egypt, Jordan, and Libya,  This would eliminate its association with the Persian Gulf and

"remaking it as, instead, an alliance constituting 'an elite regional group of six countries, which would supplant  [the GCC and] . . .form the nucleus of [a coalition of] pro-U.S. and pro-Israeli states' in the Middle East.9" (p.3) 

 The intent is a Middle East force that would support the US and be a force against the influence of Turkey and Iran.  Libya and Jordan do not end up in this group.

The chapter, in fact the book, goes on to fill in lots of the details of how this took place and how the Trump administration was involved.  

"According to an opinion piece in the Washington Post, 'If you're the Saudis, the nice thing about Trump is that he lacks any subtlety whatsoever, so you don't have to wonder how to approach him.  He has said explicitly that the way to win his favor is to give him money.  He has established means for you do do so - buying Trump properties and staying in Trump hotels.' 39 (p.8)

"...Trump's financial history with the nations of the Red Sea Conspiracy, as well as the two nations the conspirators seek to improve relations with, Israel and Russia, is long and illustrious.  Trump has properties or other assets in two former Soviet republics, Saudi Arabia, UAE, Israel, and Egypt;  he therefore maintains financial ties to three of the four nations involved in the conspiracy and one that stands to directly benefit from its successes."41 (p.9)

Abrahams suggests this is a strong reason for Trump's resistance to releasing his income taxes.  

Part of chapter one is a biography of George Nader - who organized the "Red Sea Summit" and was a key witness in the Mueller investigation and was arrested in 2018 on child pornography charges and was convicted in 2020.

At the end of the chapter Abramson outlines the goals of the 

"Red Sea Conspiracy, variously referred to by its participants and in the media as the 'grand bargain' or the 'Middle East Marshall Plan."

The hope was to a) elect Trump who would then  b) drop sanctions against Russia who would then c) withdraw support for Iran and Syria.  Abramson then lists the post-bargain expectations:

1. Isolate US allies Turkey and Qatar (where news media Al Jazeera is based) from the US
2. Get US assistance against Iran and help Saudi Arabia and UAE become nuclear powers
3. Get US and Russia to do massive infrastructure development in Middle East and deflect from Israeli-Palestinian debate
4. Establish pro-Israeli, pro-US military alignments with Sunni Arabs 
5. Suppression of pro-democracy forces in and out of the US in the face of growing autocracy in Israel and US Arab allies - Saudi Arabia, UAE, and Egypt

Lots of Trump's policies and actions - ignoring the murder of journalist Jamal Khashoggi, scuttling the Iran nuclear deal, moving the US embassy to Jerusalem, the obsequious treatment of Putin, pulling out of Syria - are all consistent with this narrative.  

I have no connection with Abramson other than following him on Twitter and having read the first two books in his Proof series:  Proof of Collusion and Proof of Conspiracy.  Both were like in-depth Cliff-Notes on all the scandals surrounding the Trump presidency.  Detailed descriptions of the characters whose names - like George Nader - show up briefly in the headlines then are quickly forgotten as new names replace theirs.  The books also detail the complicated stories of connections and money that the news media only skim the surface of and most Americans are too distracted to study enough to comprehend.  

I would also note that Proof of Conspiracy has so many endnotes that the publisher left them out of the book and set up a website where readers can get to them.  Without the footnotes the book is 569 pages.  So, I've left the endnotes in the quotations and you can look them up at the link.

I wasn't planning on this post, but with both United Arab Emirates and Bahrain announcing diplomatic relations with Israel less than two months before the election, it seems important that Americans understand that Trump is the pawn here, not the chess master.  

I'd also note that Abramson's third book in the series, Proof of Corruption, just came out this week.  

‘Black Lives Matter’ or ‘Shut up and dribble?’ That’s the choice America has to make

 That's the title of a piece from Leonard Pitts.  Below is an excerpt which just seems so obvious.  

White people often think you can buy your way out of race. They refuse to grasp that racism doesn’t care how much money you make or how many diplomas adorn your walls. Thabo Sefolosha of the Houston Rockets earns a reported $2.5 million a year; New York City police broke his leg. Danielle Morgan has a bachelor’s degree, two masters and a Ph.D. Campus cops at Santa Clara University knocked on her door and required her to prove her house was her house.

Money is not enough. Education is not enough. Excellence is not enough.

But enough is enough. That’s why the NBA called time out."

Yet watching the Republican Convention this week, it is clearly not obvious to lots of people.  

The sordid history of the gun toting McLoskeys from St. Louis has been chronicled.  Yet they were featured as heroes at the convention.   The 17 year old murderer in Kenosha is being feted as a right-wing hero, yet he killed two protestors and the police ignored him even though people were telling them he was the shooter.   Trump and his storm troopers spent four days trying to stir white fears that black Americans will overrun their neighborhoods and loot and rape and murder.  And that people like me are intent in destroying the United States.

We know why Trump is doing this.  To help him win the election.  Plain and simple.  And because he has no concern for black Americans unless they can help him get reelected.  (A couple of black women shown as Trump supporters told the NYTimes they were told the video was for something else entirely and they aren't Trump supporters.)  To say Trump has no black friends is meaningless, because Michael Cohen has said Trump has no friends period.

Perhaps these fears just reflect what white people know - that whites have treated blacks like shit* since the first Europeans and blacks arrived in the Western Hemisphere.  And they fear that if blacks gain some semblance of equality, they will do the same to whites.  I think this is the fear of those who know they are guilty, know they deserve to be punished.  But the oppressed tend to just want to be treated decently and fairly.  They don't want to act like their oppressors.  They want acknowledgment.  Look at the Truth and Reconciliation process in South Africa.  Look at restorative justice examples. 

Yes, some oppressed people have turned the tables and become oppressors themselves.  Israel, despite being the home of many holocaust survivors and their children, treats many of their Arab citizens badly.  But these Arabs weren't the Jews' Nazi oppressors.  Most Jews get along quite well with the German government - which did apologize and did give and is still giving reparations to Jewish Holocaust victims.

The simple point that Pitts makes above is that it doesn't matter how rich or educated or important black Americans are.  When they or their children are out in public anonymously, they are seen by many whites (and other people of color even) as trash and are vulnerable to all sorts of abuse from regular people as well as law enforcement and other institutions.  Until that ends, this is a racist society.  And there are two fronts this needs to be fought on:

1.  Individual prejudices - conscious or unconscious beliefs that blacks are inferior, not as competent, dangerous, and any number of other stereotypes all people raised in the US (and elsewhere) have absorbed.  (Any white who would be disturbed to hear their son or daughter wanted to marry a black person carries this sort of prejudice.)
2. Systemic racism - organizational structures and procedures - that set up more and higher obstacles to blacks than to white Americans as they try to pursue the American dream.  Things like Jim Crow and poll taxes in the past, and systematic voter suppression today such as disenfranchising felons and black neighborhoods by deleting them from the voting records or limiting the number of polling places available.  And the kinds of laws and procedures that are aimed at making a disproportionately high number of blacks into felons.  Both  #1 and #2 reinforce each other.  

If you run into folks who don't get this obvious reality, see if you can get them to read.

White Rage, by Carol Anderson, looks at how the Supreme Court used States Rights after the Civil War to ignore disenfranchising blacks in the South through poll taxes, set up laws that resulted in the arrest of blacks for 'loitering' and then taking them as prisoners who were given to white businesses as essentially prison slaves until the Civil Rights Act of 1964.  States rights was also the excuse to ignore cases of lynching and other killings of blacks.  How school integration was avoided to leave black students in poorly funded public schools.  And how the War on Drugs continued the policy of imprisoning blacks. (And this continues today as Trump encourages white supremacists to take up guns to protect whites.)

I know, lots of Trump supporters don't read books.  But a number do have college educations, even from prestigious universities.  And if they don't read, let them watch the movie 13th, about the 13th Amendment. 13th is on Netflix and in libraries and covers similar ground as White Rage.

*Sorry, sometimes euphemisms aren't strong enough, the stark truth doesn't come through.  The infrequent use of expletives means that when you use them, they have more impact.  They haven't been 'normalized' and neutered.  

Wow! Republican Right Knocked Off A Bunch Of Incumbents In Yesterday's Primary

I haven't kept close tabs on the Republican primaries this year, but I do know there's been a split between the Party and a number of Republicans who have worked closely with Democrats in the House and Senate.  

A quick look at the results (you can see them all here) shows a Republican primary massacre of incumbents like never before.  Will this lead to new Republican dominance in the state legislature?  Or will it make it easier for Democrats in November.  Probably not in Matsu, but I'm not sure about the rest of the state.  

Here are some results:

In the Senate

Senate President Cathy Giessel lost 28% to 71% to Roger Holland on Anchorage Hillside.

Long time Republican incumbent John Coghill got 47% to Robert Myers 52% in Fairbanks.

Natasha Von Imhoff got 48% to Stephen Duplantis' 51%.

Gary Stevens lost 48% to 51% to John Cox in Kodiak. (only 95% of precincts reported, but he's down almost 900 votes 1403-1334.  Not likely.)

 Incumbent David Wilson won with 32% against seven others.

Bert Stedman comfortably kept his seat (64%)

Newly appointed Josh Revak got 64%.  

In the House, 

Incumbent Mark Neuman lost 37% to Kevin McCabe's 62% in Matsu.

Incumbent Gabielle LeDoux got creamed (20%) to David Nelson's 79%.

Incumbent Jennifer Johnston also got creamed (27%) to James Kaufman's 73%

Recently deceased incumbent Gary Knopp got 13% of the vote to Ronald Gilhman's 61% (a 3rd candidate got 24%)

Former Rep Lynn Gattis lost 28% to former Right to Life Board Member Christopher Kurka.

Bizarre Right David Eastman won 51% to Jesse Sumner's 48%.

The ruthless hand of Tucker Babcock has clearly been busy.  

Mailed In Our Alaska Primary Ballots

Election Fraud - Why Trump Could Win Again [UPDATED]

Election fraud is not new.  Mayor Daley in Chicago was know to be a master.

"During the 1928 primary election, shootings and bombings were used to frighten and eliminate opponents. That election — which saw two political figures killed and 62 bombings, including one at the home of a senator and Cook County State's Attorney candidate — became known as the "Pineapple Primary," using the slang term "pineapple" for a grenade."

While the Republicans are screaming about VOTER fraud - which is really a minor issue - the real danger for the upcoming elections is ELECTION fraud - manipulating the ballots, the voting machines, suppressing the vote, and variations of those themes.

I came across Greg Palast's name during the April 2012 Anchorage Municipal election when many polling places had no ballots and the election was challenged.  He's been primarily focused on ways people rig elections.

Georgia's recent primary election was an example of how Republicans are manipulating elections now.  One key aspect is just to shut down most polling places in minority areas.  The Corona Virus offers a great excuse - "We can't get poll workers."  Republican governors are opening every business they can, except election polling places.

This is a topic I expect that I will be posting on more frequently.  It's like Climate Change - it's invisible to most people, affects poor people more than the affluent, and it's in the future.  Some people are very aware about it and making as much noise as they can, but for most people it just seem like a big deal, or anything they can do much about.

I'm hoping the fear of Trump's use of election fraud to win the 2020 election might get more people excited.

This video is not quite my style, but the content and enthusiasm may get some people to get alarmed.
This is, pretty much, a shameless plug for Palast's book How Trump Stole 2020.  But I encourage you to watch it, because my style is much more serious than most folks and perhaps you'll start acting your local officials how your elections are being protected.






[UPDATE June 20, 2020 - Here's a newer Tweet with a shorter video on the problems in the recent Georgia election.  Worth a minute of your time before this happens to you too.]

#Georgia: A Well Designed Disaster... What happened there was a test run for the entire nation. https://t.co/uRkzW3wY3C #Election2020 pic.twitter.com/VCnkyBL8jW

— Greg Palast (@Greg_Palast) June 20, 2020

Here's another example of this:

Kentucky cutting number of polling places for Tuesday’s primary from 3700 to 200

There will be one polling place for 616,000 registered voters in Louisville’s Jefferson County, where half state’s black voters live

This is going to be a disaster https://t.co/Xn61pDqleN

— Ari Berman (@AriBerman) June 19, 2020

Alaska has had a pretty good election system.  We've always had back up paper ballots.  Anchorage has all mail-in elections (with back up polls on election day.)  But there's concern that our voting has been hacked in the past.

As I say, expect more on this topic.  I'm pretty much convinced that Trump can't fairly win the 2020 election.  But I'm just as convinced that he's going to do everything he can to win it unfairly.  We all need to get educated on this topic and militantly start educating our legislators.

Because, if you checked the video, you'll know that Palast's assertion is that 20% of mail-in votes are rejected for minor errors and it's predominantly ballots of people of color and young voters. Already, the Division of Elections in Alaska has decided to send out mail-in ballot requests to all voters over 65.  So it's started already.  Fortunately we have legislators challenging this, arguing that everyone should get those applications mailed to them.  Now they have to set up safeguards so those mail-in ballots don't disappear before being counted and aren't rejected because someone used an X instead of filling in the bubble.