SCOTUS ended its term with voting rights & financial disclosures.
I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum — then “my take.” You can read Tangle for free or subscribe for Friday editions, and you can reach me anytime by replying to this email. If someone sent you this email, they’re asking you to sign up. You can do that by clicking here.
Today’s read: 11 minutes.
The Supreme Court’s final rulings of the session. Plus, a question about prison profits and a fun announcement on Tangle’s new home!
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- The House and Senate are in recess this week, meaning President Joe Biden can expect to be at the center of political coverage. (Politico)
- The Biden administration failed to meet its self-imposed deadline to get 70 percent of all adults at least one dose of a coronavirus vaccine by July 4. About 67 percent of all adults have received one dose. (CBS News)
- Members of the Problem Solvers Caucus announced their support for a $973 billion infrastructure deal proposed last month by a bipartisan group of senators. (Fox News)
- U.S. soldiers vacated Afghanistan’s Bagram Airfield after 20 years yesterday, turning off the electricity and leaving in the middle of the night as the troop withdrawal continues. (Associated Press)
- Across the country, Republican candidates for state and federal office are making the 2020 election — and claims that it was stolen from President Trump — a central part of their pitch to voters. (The Washington Post, subscription)
What D.C. is talking about.
The Supreme Court. Last week, the court handed down its final two rulings of the term. After weeks of some surprising and unanmious rulings, the court was divided on two of the most consequential cases it was handling.
In the first case, Brnovich v. Democratic National Committee, the court issued a major decision on voting rights that will make it harder to fight election regulations using the Voting Rights Act, according to SCOTUSblog. In that ruling, the court upheld two Arizona voting laws that were contested by Democrats, who said the laws disproportionately burdened minority voters. One provision will require election officials to throw out entire ballots if they were cast at the wrong voting precinct. The other would ban “ballot harvesting,” the practice of collecting and delivering another person’s ballot unless you are a family member, caregiver, election official, or mail carrier.
That case was decided 6-3 along ideological lines, with the court’s more conservative justices joining the majority. In the majority opinion, Justice Samuel Alito wrote that Section 2 of the Voting Rights Act requires that voting be “equally open,” and said that the size of the burden imposed by a new voting rule is highly relevant when determining if Section 2 is being violated. “After all,” he wrote, “every voting rule imposes a burden of some sort.” He also emphasized that new rules should be taken in the context of 1982, when Congress amended Section 2 to prohibit racial discrimination. Since most states did not even allow absentee ballots in 1982, laws making it stricter to vote by absentee ballot now are not considered as burdensome.
The ruling is considered a major win for Republican state legislatures passing new voting laws, and is expected to make it much more difficult to challenge those laws in the future.
In a separate ruling, Americans for Prosperity Foundation v. Bonta, the court struck down a California law that required charities and nonprofits to provide to the state attorney general’s office the names and addresses of its largest donors. This ruling also came down along ideological lines, 6-3. The nonprofits argued that the new law violated the First Amendment because it would dissuade donors from making contributions. Justice Sonia Sotomayor said the ruling could have an impact beyond nonprofit and charitable donations, potentially allowing challengers to target laws that require disclosing the sources of political donations, according to SCOTUSblog.
Below, we’ll take a look at some reactions to the rulings from the left and right.
What the left is saying.
The left objected to both rulings, saying one will make it easier to pass discriminatory voting restrictions and the other could lead to political donations being further obscured.
The New York Times editorial board said the ruling on the Arizona laws is another blow to voting rights.
“Under Section 2 of the Voting Rights Act, which bars any law that discriminates on the basis of race, whether intentionally or not, the Arizona laws should have been invalidated,” the board said. “But the conservative justices dismissed the challenge because, they said, only a small number of people were affected. ‘The mere fact that there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote,’ Justice Samuel Alito wrote in an opinion joined by the other conservatives.
“That is a dismissive wave of the hand at precisely the sort of evidence that Congress told voting-rights plaintiffs to present in court,” the board wrote. “As Justice Elena Kagan pointed out in a dissent longer than the ruling itself, small numbers can make a big difference. In 2020, for example, Joe Biden beat Donald Trump in Arizona by a little over 10,000 votes — fewer than the state threw out based on the out-of-precinct policy in two of the past three presidential elections. Since the court is talking about ‘mere facts,’ the conservative justices might have noted the mere fact that voting fraud, which lawmakers in a number of states claim they are trying to prevent with laws like the ones in Arizona, is essentially nonexistent. As one federal judge put it several years ago, such laws are akin to using ‘a sledgehammer to hit either a real or imaginary fly on a glass coffee table.’”
In The Washington Post, Sean Morales-Doyle said “the damage done by the opinion reaches far beyond Arizona’s voters.”
“Departing from precedent, which placed the ‘social and historical conditions’ created by race discrimination at the heart of its Section 2 analysis, the court majority, in an opinion written by Justice Samuel A. Alito Jr., chose to focus instead on a new set of ‘guideposts.’ Although the majority acknowledged that ‘differences in employment, wealth, and education’ can enable some voting laws to have a disparate effect, it essentially threw up its hands, because it may be ‘virtually impossible for a State to devise rules that do not have some disparate impact.’
“Because Congress last amended Section 2 in 1982, the majority pointed to voting practices from 1982 as a benchmark for ‘gauging whether the burdens imposed by a challenged [voting] rule are sufficient’ to warrant concern today under the VRA,” Morales-Doyle wrote. “Putting aside the fact that the Voting Rights Act in no way ratifies 1982’s voting practices, consider the implications of this approach: Four decades ago, states didn’t use computers in election administration, and early or mail-in voting wasn’t as widely used. And across the country in recent cycles, voters of color have become a greater segment of the electorate.”
In Slate, Dahlia Lithwick criticized the court’s ruling on the California financial disclosure laws.
“While the seemingly narrow opinion doesn’t get to the larger questions about campaign finance disclosure laws, it surely opens the door to their demise,” she said. “The petitioners—Americans for Prosperity Foundation, a Koch-affiliated group, and the Thomas More Law Center—claimed that the compelled disclosure violated their First Amendment rights and the rights of their donors, and that state collection of this information would subject them to harassment and reprisals. (Americans for Prosperity, it should be noted, told the Hill it spent ‘in the seven figures’ on its campaign to have Justice Amy Coney Barrett seated at the court last fall.)
“There is a strange two-step happening in both of today’s major cases,” she said. “In Shelby County in 2013, the Supreme Court promised that the effects of its decision on Section 5 of the Voting Rights Act would not be consequential because racial voting practices would still be covered by Section 2. Well, today the court slashed Section 2 to the bone. By the same token, when the court decided Citizens United in 2010, the majority promised us that doing away with campaign finance rules would not be consequential because robust disclosure rules would take care of any corruption. Well, today the court made it unlikely that campaign finance disclosure laws will survive… Today the court made it harder to regulate actual charitable corruption, and easier to regulate imaginary vote fraud. Neither of those outcomes is good for democracy.”
What the right is saying.
The right supported both decisions, saying one created a high bar for the federal government to intervene in a state’s election processes and another preserved freedom of speech and assembly for political donors.
In The Washington Post, Henry Olsen said the court “did exactly what was necessary to uphold democratic values” in both cases.
“The case involving Arizona’s voting laws, Brnovich v. Democratic National Committee, was also rightly decided,” Olsen said. “Regarding the first provision, the state had a legitimate interest in preventing intimidation or fraud; as to the second, the totality of the state’s voting procedures provided all people regardless of race or ethnicity an equal opportunity to vote. Each finding protects the right of each voter to cast a ballot that reflects their true choice and the right of the state to adopt mechanisms to protect that right.
“The practice prohibited in the first provision has been labeled ‘ballot harvesting’ and could easily result in people surrendering mail ballots to harassers or casting a vote under duress. Indeed, that is exactly what happened in a recent North Carolina voter fraud case, where a third party collected uncast mail ballots from voters and then cast votes in their names for a candidate who paid him… The same reasoning applies to the second provision. The court noted that Arizona gives people many ways to cast ballots, including no-excuse mail voting and many days of in-person early voting. This implies that, had Arizona only allowed in-person voting on Election Day, the court might have found the practice in violation of the law. But in the absence of that, assigning people to precincts is both a reasonable way to administer a complex election process and to spread access to the ballot.”
In The National Review, Isaac Schorr and Brittany Bernstein lamented “hysterical reactions to recent Supreme Court rulings” from the left.
“Instead of laying the groundwork for a new Jim Crow… Alito articulated a number of factors that should be evaluated when determining whether a law is in violation of section 2 of the Voting Rights Act,” they wrote. “He and the rest of the majority favor a totality-of-the-circumstances test that balances state interests in election integrity with ensuring equal opportunity to the right to vote, as opposed to the single-minded disparate-impact approach advocated by Justice Elena Kagan and the liberal bloc… Is it the desired result of progressives who view even the smallest of asks at the ballot box as voter suppression? No, but it’s also not a nefarious or unreasonable burden for citizens of all colors and creeds.
Related to the financial disclosures case, Roberts said “‘the deterrent effect’ of the requirement on donors ‘is real and pervasive,’ and thus constitutes an infringement on their free-speech rights. This expansion of free speech rights was met by much gnashing of teeth by the very-online left-wing commentariat,” Schorr and Bernstein wrote. “The New Yorker’s Jane Mayer declared that ‘in a case brought by the Kochs’ political arm- Americans For Prosperity- the Court’s conservatives just made dark money even darker.’ [Elie] Mystal lamented that it was done ‘for the Koch Brothers.’ … It’s odd framing, considering the fact that progressive groups such as the American Civil Liberties Union, Council on American-Islamic Relations, and even People for the Ethical Treatment of Animals all submitted amicus briefs to the Court asking it to rule as it did.”
In The Wall Street Journal, Kimberley A. Strassel said the financial disclosure ruling was a “supreme blow to intimidation.”
“Rhode Island Sen. Sheldon Whitehouse is unhappy with Thursday’s Supreme Court ruling that reins in his ability to harass political opponents. Perhaps he and his fellow intimidators should have been less brazen,” Strassel wrote. “Mr. Whitehouse has taken on the lead harasser role. He cloaks his intentions in warnings about ‘dark money’ and ‘front groups.’ But his threats have become so obvious that there is no longer any denying his objectives. Whether he’s demanding confidential financial information from free-market nonprofits or insisting on new rules to expose the donors to organizations that submit court briefs, his targets are always on one side—the right—and his clear goal is to punish them.
“He’s been aided by the Democrats who ginned up the Internal Revenue Service scandal over the targeting of conservative nonprofits and liberal groups that launch boycotts of corporations whose executives and political-action committees contribute to political campaigns,” she added. “And by the anonymous activists in 2008 who mined disclosure records to compile a database of contributors to California’s Proposition 8, which banned same-sex marriage—used to target donors’ homes and businesses and get people fired. With today’s routine online doxxings, the Lincoln Project’s proposed blacklist, politicized prosecutors, cancel culture and campus tribunals, the Supreme Court can no longer pretend disclosure is benign sunshine.”
The ruling on the Arizona laws is troubling, particularly that the court will allow a provision which invalidates ballots cast in the wrong precincts. As a voter in an urban area, I can assure you that casting a ballot in the wrong precinct is easy to do. Precincts change places frequently, and if you move one block down the street the place you vote may change — even if where you voted in the election prior is still closer to you (this happened to me recently in Brooklyn — a change I only realized the day before I voted). Polling places often move for other reasons, too.
Far from fraud, this mistake is usually just that — an honest mistake. And voters should be able to correct their ballots. Even worse is that some ballots will be thrown out even if they contain votes for statewide races like governor (which are not impacted by precinct lines). Naturally, the people most likely to face this issue are voters who move frequently, have less economic stability, live in areas where polling places often move, or live in areas frequently at the center of gerrymandering and redistricting battles. In more urban areas, that often means minority voters, and it’s clear Republicans in Arizona weren’t passing this legislation because they thought it would harm their own election odds.
Worse, still, was the justification: that Section 2 needs to be contextualized to the 1980s, that all election rules impose a burden of some sort, and that burdens now need to be “substantial” to violate the law. These standards appear nowhere in the original text, and that Alito introduced them is a blatant contradiction to his own constant lecturing about textualism. Congress’s goal at the time of passing Section 2 was clear: prevent states from passing voting rules that are meant to discriminate against minority voters. Whether the laws could be only marginally racist was not at question.
The financial disclosure ruling, on the other hand, was something I was happier to see. Of course, I’ll eat my words if this ruling ends up putting an end to campaign disclosures, but there’s a clear line between the two: charities and nonprofits are not made up of federal employees. Someone running in an election is auditioning for a job that we are employing them for, so we have a right to know who is funding them. Political donations are already shrouded in mystery, and we should be making it harder — not easier — to hide that cash.
But charities and nonprofits — even those that are political — are in a different realm. Even the richest Americans should be allowed to donate handsomely and privately (though I do think there are responsible ways to make everyone’s tax returns public information). On top of that, the court was not dealing in theoreticals: plenty of unlawful leaks leveraged as political intimidation are playing out in real-time. I don’t agree with Kimberley Strassel on a lot, but as she rightly noted, there’s a reason “the Pacific Legal Foundation, the NAACP, the Cato Institute, the Council on American-Islamic Relations, the National Association of Manufacturers and People for the Ethical Treatment of Animals” are all aligned on this issue: forcing these disclosures infringes on the rights of donors and is exposing them to intimidation, pressures and potentially even violence that they shouldn’t face for putting their money somewhere.
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Your questions, answered.
Q: Could you explain our prison system being “built to accrue profits”? [Editor’s note: this question was asked in response to my writing that our prison systems are “built to accrue profits, not apportion justice.”]
— Ronald, Montoursville, Pennsylvania
Tangle: There’s enough material here to write a book, but the general outlines look like this: in the middle of the 20th century, our prison population exploded. To respond to the “demand,” for-profit prisons started cropping up in many states, and in 2016, 128,063 of the 1.5 million people in state and federal prisons were in private prisons. For-profit prisons exist to make money, which means maintaining or growing the size of our inmate population is their number one priority. More prisoners means more money. The Corrections Corporation of America’s 2010 report stated this unapologetically:
Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities. This possible growth depends on a number of factors we cannot control, including crime rates and sentencing patterns in various jurisdictions and acceptance of privatization. The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws.
As a result, private prisons have joined with lawmakers and corporations to advocate for more privatization and against criminal justice reforms that might reduce the number of prisoners (or the length of their sentences).
But the pressures of profits are not unique to private prisons. Public prisons, despite being run and funded by government entities, are also rife for profit motivation. Running a prison costs a lot of money, so some states will cut corners to save that money. Sometimes, they do that by contracting services — everything from their cafeterias to building maintenance — with private companies. In Michigan, for instance, the state turned over its food system to a private company, which helped them save $16 million while slashing the costs of individual meals and providing prisons (and the incarcerated people) with rotten food.
These economic pressures exist everywhere in the prison system, and it’s part of what has made it — in both the private and public spaces — one of the most dysfunctional institutions in America.
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A story that matters.
Some interesting new media personalities are rapidly gaining enormous traction, upending the traditional power dynamics of the mainstream press. “Trust in the mainstream media is at a record low, and the remote nature of the pandemic, sped up by digital innovation, is making it much easier for creators to self-publish and distribute their work online,” Axios is reporting. The changes — which also helped lead to the creation of this newsletter — were most on display recently, when Saagar Enjeti and former MSNBC anchor Krystal Ball left The Hill to start their own franchise. In a matter of weeks, they gained 500,000 subscribers and became the second most popular political podcast in the country. Of the top 50 political podcasts on Apple podcasts today, about 60% come from personalities who don't work at mainstream news companies. (Axios)
- 2.2 million. The number of fliers screened by TSA on Friday, the most since March of 2020.
- $7.2 billion. The amount of money some of the world’s largest oil companies have been ordered to pay to retire aging wells in the Gulf of Mexico.
- 32. The latest confirmed death toll in the Surfside building collapse in Miami.
- 113. The number of people who remain missing.
- $3.12. The average price of a gallon of gasoline, up nearly a dollar from this time last year.
- 181.7 million. The number of Americans who have received at least one dose of a Covid-19 vaccine.
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Have a nice day.
This story is so good I’m still unsure if it’s true: a pair of coworkers, Susan Ellis and Tia Wimbush, were chatting at work when they discovered that each of their husbands was suffering from a kidney disease and needed a transplant. The women, who worked together in the IT department at Children's Healthcare of Atlanta for 10 years, had never known about the other’s struggle. But things took an even wilder turn when Wimbush asked Ellis her husband’s blood type, and she told her it was O negative, a rare blood type that’s very hard to match. Wimbush was blood type O, which is compatible. When Ellis told Wimbush her blood type, it got even weirder. She was a transplant match for Wimbush’s husband.
Then the two decided to donate their kidneys to each other’s husbands. The four friends soon underwent surgery together, and the husbands both took to their new kidneys successfully. CNN has the story here.