On July 9, 2018, the 150th anniversary of the ratification of the Fourteenth Amendment, President Trump announced his nominee for Associate Justice of the Supreme Court, filling the vacancy left by Justice Anthony Kennedy, who had been the swing vote on the Supreme Court. This leaves Supreme Court nominee Brett Kavanaugh (DC Circuit) in a potential position to reshape law in areas ranging from reproductive rights and health care to LGBT rights to voting to presidential powers to administrative law and discretion to agencies’ interpretations. The Senate Democrats, though in a week political position, must be poised to press Judge Kavanaugh on a number of areas of law that will be troubling to a number of Americans across the nation.

In light of post-Bork Supreme Court nominees’ general reticence about their views on precedent, their personal and political beliefs, and hypothetical cases, senators asking Judge Kavanaugh questions about his agreement with precedent will likely be relatively fruitless (though they should note that despite invocations of the “Ginsburg rule,” then-Judge Ginsburg was quite candid about her views on abortion politics, thus limiting nominees’ ability to rely on it to deflect). While we can make conjectures about his views on Roe v. Wade and Planned Parenthood v. Casey based on his being on the Federalist Society list, asking him about Roe might not be that illuminative. However, in a number of cases, the Supreme Court has laid out quite vague standards that would allow judges to reach quite different interpretations of their proper application. Thus, I have proposed below the following questions for members of the Senate to ask Judge Kavanaugh, which seek to highlight his interpretation of the scope of existing precedents, how he reached prior decisions, the authorities that he consults in reaching decisions and the balancing of competing rights, and seeking clarification on controversial remarks that he has made:

Reproductive Rights

1) While Roe v. Wade is the central abortion law holding on which many focus, Planned Parenthood v. Casey is the holding according to which we now judge the constitutionality of states' restrictions on abortion access. What is your understanding of what constitutes an undue burden or a substantial obstacle within the meaning of Casey? How do you feel that Casey compels justices to identify whether abortion restrictions are motivated by health and safety or by efforts to dissuade abortions? How do you interpret this Supreme Court precedent as clarifying how the state balances its interest in life and potential life?

2) While the Burwell v. Hobby Lobby holding was technically in regards to closely-held corporations' ability to exercise religious freedom in their decisions regarding health coverage for employees under the ACA, it affirmed notions of corporate personhood as also laid out in Citizens United, and expanded the 1st Amendment protections afforded at least some corporations. Indeed, Justice Ginsburg, in her dissent in Hobby Lobby, wrote that there as "little doubt that RFRA claims will proliferate, for the Court's expansive notion of corporate personhood -- combined with its other errors in construing RFRA --  invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith." How limited in scope do you see this holding as extending? That is, to what extend do you view it as laying the groundwork for more corporations to claim religious exemptions, and how (if at all) as a judge would you ascertain the sincerity of religious beliefs espoused by those in corporations? 

3) In a speech at the American Enterprise Institute, you appealed to Justice Rehnquist’s dissent in Roe v. Wade, and in doing so criticized the majority’s creation of unenumerated rights. You said, “Rehnquist’s dissenting opinion did not suggest that the Constitution protected no rights other than those enumerated in the text of the Bill of Rights. But he stated that under the court’s precedents, any such unenumerated right had to be rooted in the traditions and conscience of our people,” and that while Justice Rehnquist’s view was in the dissent rather than the majority, “he was successful in stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.” Given the precedents of Griswold and Roe, as well as the broader notions of privacy that have been upheld by the Court, how would you define the proper extent of unenumerated rights, and on what authorities would you rely in ascertaining whether a right is consistent with enumerated rights, and what falls outside the scope of judicial power to assert?


Privacy 

4) In the context of privacy decisions under the 4th Amendment, under what conditions do you interpret the Supreme Court as calling for a "reasonable suspicion" as opposed to a "probable cause" threshold for a search, and how according to cases such as Pottawatomie v. Earls, would you identify what exactly would be grounds for "reasonable suspicion"? 

5) It is not uncommon for the interest of privacy and liberty more generally to be weighed against the interest of public safety and national security. How do you view these competing interests, and how do you interpret the Supreme Court precedent as balancing these when they're in tension? What evidence of a security threat do you see as sufficient to justify intrusions on individual liberty, and to what sources would you turn to identify this? 
 
6) You dissented in National Federation of Federal Employees v. Vilsack, a case on whether the Fourth Amendment permitted random drug testing for Forest Service Job Corps Center employees, and whether the non-law-enforcement public-safety interest in a drug-free environment outweighed the interest in guarding against privacy invasions of a random drug test. The majority found that the program was impermissible under the Fourth Amendment because there hadn’t been evidence of drug problems among the staff, suggesting that it was “a solution in search of a problem,” and that the program was overly broad in its application. I have two questions about your view on this case:
a) In your dissent, you viewed the drug testing program as being clearly reasonable and constitutionally permissible, holding that it “would seem negligent not to test” employees for drugs given the history of drug use among the at-risk students participating in the program. How do you assess a compelling state interest in combatting drug use when there is no evidence that this is a problem among the staff? When you consider compelling state interest, is it based on evidence of an existing problem, or is a more theoretical issue that the government has an interest in avoiding enabling?
b) You also viewed the drug test as being nonintrusive since it was only the provision of a urine sample. Are there more invasive oversight measures (such as blood tests or the submission of medical histories) that you would not have viewed as permissible even in light of the government’s interest in a drug-free environment?

7) In Klayman v. Obama, you decided on the National Security Agency’s Section 215 call-records program, which in your concurrence you found to be “entirely consistent with the Fourth Amendment.” How do you view this opinion now in light of the June 2018 decision of Carpenter v. United States?


Religion
 
8) You have been critical of Thomas Jefferson’s arguments about a strict wall of separation between church and state. How high do you view the proper separation of church and state, and how do you understand the Supreme Court precedents and history as shaping determinations as to what is a breach of this separation?
 
9) In the context of the Establishment Clause and the Lemon Test from Lemon v. Kurtzman (1971), the Court has held that laws are in violation of the Establishment Clause unless they 1) have a primary secular purpose, 2) have a primary secular effect, and 3) do not cause undue government entanglement in religion. You have said that application of the Lemon Test “can sometimes be counterproductive or even harmful.” Please discuss what your specific concerns are about it, and what your preferred approach to Establishment Clause cases would be.

10) Setting aside your view of the merits of keeping in place the Lemon Test and focusing instead on your understanding of its proper application, how do you understand the Court as having defined "undue government" entanglement in religious beliefs? To what sources do you believe it is legitimate to look in order to ascertain the secular vs. non-secular purpose of a policy? Do you look to facial neutrality, do you look at sources beyond the text, etc? How much evidence of someone’s personal history and comments do you feel would satisfy the qualification of being religiously-motivated?
* This is especially important in light of Justice Roberts's opinion in Trump v. Hawaii, which held that a facially neutral executive order could be treated as not constituting a non-secular purpose in large part because the religiously-motivated statements were from sources such as tweets, campaign statements, rallies, etc., as opposed to official government documents. So, if there is a policy with several statements indicating an underlying motivation of bias, should such statements enter into consideration by the Court, or should a more textual reading be applied?

11) You served as co-chairman of the Federalist Society’s “School Choice Practice Group,” and you worked on school choice litigation in Florida. One of the concerns about vouchers is that while promoting flexibility in allowing children to have more education options, they allow tax dollars to go to schools that may be non-secular, with the vouchers more likely to be used for religious schooling, which is less expensive. While the Supreme Court upheld their constitutionality in Zelman v. Simmons-Harris (2002), it was a contentious 5-4 decision and this remains a highly salient issue. Can you please discuss the evidence that you saw for their legitimacy taking into account both the state’s compelling interest in education quality, as well as the empirical fact that the vast majority participating in these program choose religious schools. When you look at data such as the differences in tuition for secular and non-secular schools and the rates of using vouchers for secular and non-secular schools, how do you evaluate the extent to which there is a true private choice?
 
Race

12) A number of Supreme Court decisions have upheld the constitutionality of affirmative action, conditional upon those policies not being administered through the use of quotas, but rather as part of a broader acknowledgement that race is one of many factors contributing to education diversity, and for which there is a compelling state interest (Grutter v. Bollinger, Fisher v. UT Austin). How should the Supreme Court balance affirmative action precedents that have been reaffirmed, against the (elected) executive branch rescission of affirmative action guidance? 
 
13) You predicted decades ago that the Supreme Court would embrace a color-blind view of the constitution, an approach that would undue much settled precedent regarding the consideration of race in admissions. You have also said, “This case is one more step along the way in what I see as an inevitable conclusion within the next 10 to 20 years when the court says we are all one race in the eyes of the government.” Please elaborate on your remark about enforcing a color-blind constitution, and to what extent (if at all) you consider the extent to which racial diversity would likely decline in the event of these programs’ termination.  

14) In 2013 in Shelby County v. Holder, the Supreme Court controversially struck down a portion of the Voting Rights Act that required preclearance. In the immediate aftermath of the holding, several states enacted restrictions on voting laws, such as onerous voter ID requirements and limits on early voting. In his majority Chief Justice Roberts cited the limited evidence of ongoing intrusions into voting rights in the affected parts of the country, though in her dissent, Justice Ginsburg compared the decision to throwing away one's umbrella in a rainstorm because one is getting wet. One tension that we have in this country is a recognition of certain fundamental rights on which the government can only in very rare cases infringe, as well as a system of federalism according to which states often have some measure of autonomy in implementation. How would you evaluate whether legislation that imposes requirements on states is still required to be in full effect in order to safeguard rights, especially fundamental rights such as voting?

15) You wrote an opinion that upheld South Carolina's strict voter ID law. You argued in your holding that the South Carolina law did not have a "discriminatory and retrogressive effect," and that the purpose was not discriminatory. You additionally cited a precedent that legislators' knowledge of the law's potential disproportionate impact does not alone equate to a discriminatory purpose. How, in your view, are judges meant to interpret whether a law is impermissibly aimed at discrimination, and from what sources do you feel it appropriate to render such an assessment? And to follow up, to what extent do you view this application of precedent deciphering in this case the motive behind voter ID laws extend to issues of disparate impact more broadly?

16) While there has been ample controversy concerning potential racial bias in redistricting and gerrymandering, in a recent case before the Supreme Court (Abbott v. Perez) it was assessed that the district lines may have been drawn out of political bias, which in some parts of the country overlap considerably with racial demographics. Given that we treat racial discrimination with strict scrutiny, how do you view the Court precedent as informing how you would disentangle politically-motivated from racially-motivated drawing of district lines?

Separation of Powers

17) You have been highly critical of the decision Chevron v. NRDC and the Court's declaration that there should be deference to agency interpretations of their authority unless Congress had been clear about its intention. What would be a more reasonable approach to administrative law doctrine? How would one balance the Supreme Court precedent and the agency's policy expertise against concerns about the scope of government intervention?

18) Your rulings on congressional deference to agencies have been inconsistent. In the context of congressional deference to the Environmental Protection Agency, you are critical of broad agency interpretations of their prerogatives. However, in PHH Corporation et al v. Consumer Financial Protection Bureau  (2016), you characterized congressional creation of independent executive agencies as a "headless fourth branch of government," and held that the CFPB's leadership structure was unconstitutional. Under what conditions do you view it as appropriate and constitutionally permissible for Congress to create such agencies, and what do you view as the proper role of courts in checking the reach of this executive branch authority?

19) You said of the unanimous decision United States v. Nixon (1974), which compelled President Nixon to comply with the subpoena and to produce the tapes and documents pertaining to Watergate, “Maybe Nixon was wrongly decided – heresy though it is to say so. Maybe the tension of the time led to an erroneous decision.” You also said of United States v. Nixon, “Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official.” Please elaborate on what you view as erroneous about this decision, and what you view as a more appropriate remedy than the one given. In times of executive branch corruption and an effort to promote transparency and accountability, what do you view as the proper role of the Supreme Court, if any, in guarding against excessive invocation of executive privilege? What do you believe that history, precedent, and practicality suggest should be the threshold requirements for claiming executive privilege?
 
20) In 2016, you said you wanted to “put the final nail” in the 1988 Supreme Court ruling of Morrison v. Olson, which by a vote of 7-1 upheld the constitutionality of provisions that created an independent counsel under the Ethics in Government Act. You additionally said, “It makes no sense at all to have an independent counsel looking at the conduct of the president.” While the law expired in 1999, being replaced by a Justice Department regulation that governs special counsels, views on the legitimacy of independent counsels and special counsels are of obvious concern right now. Please elaborate on your rationale for opposing this holding, to what extent you view Justice Scalia’s dissenting opinion as being the proper approach to adopt, and the conditions under which you view certain types of investigations of the executive branch as legitimate or inappropriate. If you view this authority as residing solely in Congress, do you view congressional inaction (potentially a result of unified government) as effectively leaving no oversight capacity over the president until the next presidential election?
 
21) Regarding the possibility of indicting a sitting president, you said, “Having seen first-hand how complex and difficult that job is, I believe it is vital that the President be able to focus on his never-ending tasks with as few distractions as possible. The country wants the President to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.” What do you view – and what do you believe that prior cases justify – as being the proper way to balance ensuring that there is rule of law and transparency amid potential issues of corruption, and promoting efficiency in the executive branch? Are there executive branch behaviors or allegations to which you would not apply that broad view of promoting flexibility and efficiency for the president, and if so, what are they?

22) The notion that there would be limits on the ability for an independent counsel, or in this case a special counsel, to investigate the President of the United States, while instead relying on the political process for impeachment, seems to be problematic in that it is difficult to obtain evidence of wrongdoing to the point of impeachment absent an investigation. How do you reconcile your reluctance to support investigatory processes into the president's conduct and a reliance on Congress, which might be looking to findings otherwise identified through that investigatory process?

23) Several political questions are currently arising that have so far been untested in the Supreme Court, particularly with respect to Article II powers. To what sources do you consult in evaluating new issues for which there is not Supreme Court precedent or is little precedent? Some of President Trump's defenders have pointed to Article II not laying out particular limits on the pardon power, and have cited this as evidence that it is unlimited, though the Constitution does not explicate limits on many rights that the Court has addressed and on which the Court has imposed bounds. In the case of issues such as the pardon power (in which specific limits are not laid out but for which immense rule of law implications can arise), to what extent do you feel that it falls within the Supreme Court's duty to interpret limits on the scope of the presidential power given broad Article II language, versus letting the issue be resolved by the democratically-elected Congress?

24) With United States v. Lopez and United States v. Morrison, the Supreme Court signaled considerable narrowing of its interpretation of the reach of Congress's power to regulate interstate commerce, instead calling upon Congress to provide greater evidence to support its claim of aggregate impact on the interstate economy. With Gonzales v. Raich, the Supreme Court broadened its interpretation, viewing the Controlled Substances Act as being within Congress's power to regulate, though in National Federation of Independent Business v. Sebelius, Chief Justice Roberts signaled another limit on what the Court viewed as a proper use of Congress's enumerated Commerce Clause authority. What do you feel is the proper test for what falls under Commerce Clause authority -- looking to whether there must be a direct impact on the interstate economy, whether the effect can be indirect, whether it has an aggregate effect on the interstate economy, whether the activity itself must be economic -- and when multiple rules have been adopted by the Court over the years (even in recent years), how would you adjudicate among them to decipher the proper scope of Congress's Article I power?

25) In United States Telecom Association v. Federal Communications Commission, you wrote a dissent in which you held that the net neutrality rule was "one of the most consequential regulations ever issued," but you ultimately claimed that it was "unlawful and must be vacated" because Congress had not explicitly authorized the FCC this rule, despite the ample record of legislative debate about the subject of net neutrality, and because restricting internet service providers' actions intruded on their editorial discretion, which you viewed as in conflict with the First Amendment. How substantial a legislative record do you view as necessary to demonstrate a legislative intent in delegating to administrative agencies, and can you please discuss where you viewed the majority on your panel as having gotten things wrong? Moreover, how do you view it as your role as a judge to balance speech rights of consumers versus the speech rights of internet providers?

Judicial Decisionmaking (general)

26) Please walk through a couple of judicial decisions that you have written in which the law led you to reach a decision that was in conflict with your personal/political beliefs, and how you reconciled that. 

27) According to what criteria would you view a precedent as having been wrongly decided? How do you weigh factors such as the extent to which it has been reaffirmed, new evidence of the impact of the holding, how popular the holding is, how recent the holding was, etc?

28) Textualists tend to seek to restrict analysis to the text, giving full meaning to the words of the text, unless doing so would produce an absurd outcome. How would you define an absurd outcome, and how would you reach that conclusion?

29) One of the consequences of lifetime appointments with longer life spans is that people are on the Supreme Court for several decades, and can in some cases be quite out of step politically with public preferences (for example, approximately 2/3 of Americans favor the upholding of Roe). To what extent, if at all, do you feel it appropriate for Supreme Court justices to consider public preferences in their judicial decisionmaking?

​Since the horrific and tragic events in Charlottesville, I have been torn between two thoughts. First, I try to give credit where it is due, and a number of Republicans have joined Democrats in condemning the white supremacy on full display at the rally (seriously, isn’t condemning Nazis the easiest part of the job?). But second, I find myself frustrated that those seeking solace in condemning Nazis (a condemnation apparently not of interest to President Trump…) so happily have empowered those who further entrench racism, misogyny, homophobia, anti-Semitism, and xenophobia.

I don’t know that Republicans are necessarily racist. But when they empower racists as a means to achieve their precious tax cuts, they look an awful lot like racists.

Consider President Trump, who as a candidate was endorsed by former KKK leader David Duke and the modern KKK, and notably showed reluctance in disavowing David Duke while showing no such restraint in attacking the media or celebrities who criticized him. It is striking that our president has stronger words for Meryl Streep than for ex-Klansmen. Trump’s perpetuation of the deeply racist birther conspiracy theory ought to have itself been disqualifying, yet the party nevertheless heard him out on other issues salient to the party. Watching Trump question the impartiality of a judge on the basis of his ethnicity, Republicans failed to distance themselves from him as their party’s nominee. Sure, they may have issued a gratuitous tweet or press statement, but they didn’t withdraw their support. They did not raise the question of, “Does the man who David Duke thinks speak for him, also speak for me and for my party?” Or if they did, they didn’t answer with an affirmative “no.” And then they voted to defend the man who they held committed the textbook definition of racism.

Indeed, any condemnation of racism rings hollow when it doesn’t not confront fully the fact that our president ran his campaign claiming that Mexicans were rapists, alleging that immigrants were bringing crime, and seeking to impose a ban on Muslims’ entrance into the United States. Will Trump disavow unabashed xenophobes? Surely no. He is one himself. Will the Republicans in Congress disavow unabashed xenophobes? Surely not. Most of them voted for one for president, and in most cases they’re enabling his agenda.

Or how about President Trump’s embrace of Steve Bannon, whose ties to white supremacy, if not direct embrace of white supremacy, should have been an immediate red flag if not deal-breaker for Republicans throughout Congress. While President Trump’s Republican support pales in comparison to that of his predecessors, a number of his co-partisans recognize that working with this administration will be necessary to achieve common goals of tax reform to aid the wealthy and the decimation of health care (also to aid the wealthy). Toward this end, the Republicans have consistently overlooked the inconvenient truths of the Administration’s entrenchment in white nationalism.

Consider the vote for Jeff Sessions for Attorney General. The best way I can summarize the Sessions confirmation is, “Jeff Sessions: Too racist for 1986, but just racist enough for 2017.” This is a man whose history of racism is well-documented and precluded his successful confirmation as a judge in the 1980s – and who in recent years not only criticized consent decrees, but characterized the Voting Rights Act as “intrusive,” praising the Supreme Court’s deplorable gutting of the VRA in Shelby County v. Holder. Indeed, Sessions had at one point jested that he thought the KKK were okay until he learned of their use of marijuana, and former colleagues had testified that he had used the n-word. And at a time of well-documented police brutality against people of color, this is an especially dangerous person to head the Department of Justice, for whom “justice” will apparently no longer be the operative word. Yet not a single Republican voted against him to be the nation’s top law enforcement officer.

It should come as little surprise that Republicans have hardly been on the front lines condemning Attorney General Sessions’s subsequent expansion of support for the private prison industry, with those incarcerated disproportionately minorities (and in many states, likely to have their voting rights stripped away, thus leaving them devoid of political remedies to fight back against such policies in subsequent elections).

Now let’s turn to the vote for Ben Carson, whose qualification for the position of Secretary of Housing and Urban Development could only be on the basis of his understanding “inner cities,” which appears to be President Trump’s euphemism for majority minority communities. Characterizing civil rights protections as “extra rights,” there was little doubt that Secretary Carson would fail to vigorously enforce civil rights in public housing, thus opening the door toward further discrimination on the basis of race, color, national origin, or sexual orientation or identity. Consistent with expectations, as HUD Secretary, Carson “reinterpreted” an Obama-era housing rule that had aimed to combat housing discrimination by reducing segregation. There was not a single Republican who voted against his confirmation.

Consider the administration’s new war on affirmative action programs, which help to increase education opportunity for those from historically disadvantaged groups, but which some conservatives characterize as “reverse discrimination.” With education opportunity helping to increase economic opportunity, increasing access to quality, affordable education is imperative, and increasing diversity is a broad goal that the Supreme Court has affirmed in Grutter v. Bollinger (2003) and again in Fisher v. University of Texas (2016), conditional upon those affirmative action programs consisting of a holistic admissions review and thus narrowly tailored as opposed to a more sweeping quota system as under Bakke. Needless to say, the incompetence of the current administration doesn’t leave one with the sense that the takeaway of 2017 is that white people are disadvantaged and plagued with “economic anxiety.” At a time when we are already seeing a re-segregation of American schools, such a stand against increasing diversity would roll back decades of progress in education and economic opportunity. And this condemnation of affirmative action has been a long-standing conservative talking point.

Or we can address the government’s commitment to Medicaid allocations, which deliver health care to the most vulnerable segments of American society, and with 1 in 5 Americans on Medicaid or CHIP. With considerable persisting health inequality, including along racial lines, delivering health coverage to the vulnerable is imperative in helping people to be productive in the workforce, and in turn boosting economic opportunity across racial lines. Studies have found that minorities would be deeply harmed by cuts to the government’s Medicaid allocations. And yet Republicans’ failure to repeal the Affordable Care Act was in no small part due to the proposed legislation not cutting health care enough.

And for everyone’s dream palate cleanser after that, there’s Stephen Miller, over whom rumors have circulated regarding a potential promotion into a communications position after his castigation of the ideals embraced by the Statute of Liberty and “The New Colossus.” But hey, we’re all probably just being too cosmopolitan in rejecting the notion that America has been, and should continue to a nation for whom diversity is an asset, not a liability, and shouldn’t be erased away through white supremacist groups seemingly be in bed with the presidential administration.

Or how about the voter ID legislation that is sweeping the nation in the aftermath of Shelby County v. Holder. Studies have shown that non-white Americans are less likely than white Americans to possess government-issued ID, and thus that such laws would have a disproportionate impact in suppressing minority voters. And yet Republicans have time and again been the party sponsoring for political gain these restrictive voting laws, many of which previously had been blocked due to preclearance requirements but which the Supreme Court has now given the green light. While state secretaries of state of both parties have challenged the massive amount of voter information solicited by the voter fraud commission led by Kris Kobach, too often Republicans have enabled if not encouraged restrictive voting legislation in the name of guarding against fraud (which incidentally doesn’t exist in any significant level) but with the ultimate effect of reinstating Jim Crow by another name.

And let's not forget the Republicans' acceptance as a colleague Congressman Steve King (IA-4), a man who keeps on his taxpayer-funded desk a Confederate flag and has more than his fair share of race-related controversies.

Even as Senator Flake rightly criticized his party for not ardently opposing the birther conspiracy, he and 50 of his fellow Republicans confirmed for a federal judgeship John Bush, who not only has been outspokenly misogynistic and homophobic, but actively spread the birther conspiracy. There are principled and qualified conservatives with whom John Bush could reasonably have been replaced as a nominee, but the Republican Party lined up in his defense, feigning offense at racism only afterward.

Opposing one’s own party is hardly an easy task, and I recognize that. But there are some moral imperatives, and standing for basic equality is one of them.

People don’t deserve points for grimacing while voting for, and continuing to empower, bigots. They deserve points for speaking out against them and then acting on that conviction. It’s like what we all learn as young children: actions speak louder than words.

Writing press statements and tweets condemning Nazis is easy. Walking away from a set of policies systematically disenfranchising and otherwise disadvantaging minorities is harder. But the Republicans need to do it if they want to be taken seriously in condemning white supremacy.

​Mr. Trump is not the first president to have a so-called “enemies list,” though the first such presidency did not end well.

Mr. Trump’s enemies list is long. Mexicans. Muslims. Vanity Fair. The New York Times. The Washington Post. Polls (when unfavorable). Fact-checkers. Democrats. The media broadly construed. Judge Curiel. John Lewis. Meryl Streep. Saturday Night Live. Those requesting his tax returns (not just journalists?).

He has now added an entire branch of government, this branch of course being the judicial branch.

If you think that this is not dangerous, guess again.

The judicial branch was famously characterized by Alexander Hamilton in Federalist 78 as the “least dangerous” branch, controlling neither the sword nor the purse, having “neither force nor will; only judgment.” While scholars have debated the extent influence of the judiciary in the separation-of-powers system — whether calling attention to the courts as vehicles for protection of rights, or calling attention to Title VI of the Civil Rights Act of 1964 as being a stronger impetus for desegregation of the American South than was Brown v. Board of Education — it is undeniable that the Supreme Court has served a crucial role in the enforcement of constitutional rights over the decades.

This is enabled in no small part by the fact that the American political system provides for judicial independence — with lifetime appointments and the inability to be removed based on its decisionmaking — thus enabling justices to avoid political pressures that might influence their rulings. It is also enabled by our institutional norm of judicial legitimacy, according to which the branches respect the right of the judicial branch to render the decisions that it does, with respect for the decisionmaking process if not the substance of the outcomes themselves.

To be sure, presidents have spoken out about their views as to the substance of decisions, with President Obama saying publicly that he disagreed with the outcome of Citizens United. But he did not attack the Court or the justices who sit on it. He attacked the particular outcome.
Enter Donald Trump.

The relationship between the Trump Administration and the judiciary has already been one marked by tension, with Kellyanne Conway initially holding that the district court restraining order “really doesn’t affect” the Trump Administration’s implementation of the notorious executive order of prohibiting travel from seven predominantly Muslim nations. While we do not always agree with the outcome of judicial rulings, the rule of law necessitates compliance with them, and appeals procedures are in place in order to challenge adverse actions. This does not, however, obviate the need to comply in the meantime, a norm that initially was not followed.

Following Judge Robart’s determination that there should be a nationwide restraining order with respect to this EO, Mr. Trump in true Trump fashion lashed out on Twitter at the “so-called judge.” While party affiliation would have no bearing on Robart’s legitimacy as a judge, it is worth noting that he was a George W. Bush appointee who was confirmed unanimously. He soon thereafter held (again via Twitter) that in the event of a national security problem, the American people should blame Judge Robart and the court system. Thus, we saw for the first time in modern American history, the President of the United States attacking the judiciary’s legitimacy and scapegoating it in the event of a hypothetical attack, likely setting it up to restrict its independence under conditions of such heightened national security risk. Absent such judicial independence, judges are not free of political pressures in their decisionmaking and thus may operate as inadequate checks on the other branches and intrusions of rights.

So, rather than accepting the outcome and following the appeals process, he filed the appeal and engaged in a Twitter tirade the compromised the very legitimacy of the branch of government dedicated to the safeguarding of rights that are left in question by the EO and its implementation’s depriving of due process and equal protection under the law. He went on to question what our country is coming to when a judge is able to halt a Homeland Security ban. He further has tweeted insidiously that we are at risk for terror attacks — an effort that like his constant falsehoods about crime rates is with the aim of instilling fear and thus willingness to forego some civil liberties — and thus that courts must act fast.

This shows a fundamental lack of understanding of, and appreciation for, the important role that courts play in our political process. The business of courts is not to act quickly, but rather to be a slower-moving political authority that is not acting out of political expediency, but rather in defense of the constitutional principles that are dangerously under attack currently between the EO and Mr. Trump’s frequent attacks on the media.

When appealing Judge Robart’s order, the Trump Administration further went on to hold, “A reviewing court would not be well-equipped to ascertain the quantum of risk, or what is a reasonable margin of error in assessing risk… Judicial second-guessing of the President’s national security determination in itself imposes substantial harm on the federal government and the nation at large.”

Liberty and security could conceivably be in tension with one another at times, which is why times of national security crisis typically coincide with stronger presidential powers and some degree of constraint on liberties (e.g., the Patriot Act). The Supreme Court’s role is largely the guardian of liberty and it is worth emphasizing also that the ban is not targeting countries from which Americans have suffered particularly, thus raising important questions as to any validity of a national security exception to the claims that his administration makes.

What is perhaps most striking about the Administration’s statement is the notion that judicial second-guessing of the president’s national security determinations is harmful.

“Judicial second-guessing” of the other branches is the job description of judges and justices, and has been since Justice John Marshall famously declared in 1803 in Marbury v. Madison that “it is emphatically the province and the duty of the judicial department to say what the law is.” Indeed, this check on presidential (and legislative) powers is an essential protection of the separation of powers, guarding citizens’ rights against government encroachments of which the Framers were concerned.

Perhaps before Mr. Trump seeks to “make America great again,” he should make Marbury great again.

Those defending Mr. Trump have similarly mischaracterized the critical role that the judicial branch serves in American politics. Mike Huckabee said on Fox that the executive branch historically “has emasculated itself by surrendering constantly to the idea that once the court says something, that’s it. It’s the law of the land… The court can’t make law. They cannot legislate.”

While it is true that legislation is pursued through Congress, the elected branch, and it is true that the judiciary relies on the other branches for the implementation of its decisions, judicial holdings create binding precedent, laws contrary to the Constitution are deemed invalid, and the American political system has a norm of compliance with such holdings, lest we compromise the very fabric of the rule of law governing our society.

There have been all too many moments of the Trump transition and early days of the presidency in which Mr. Trump and his advisors showed a frightening lack of understanding of the role of the president (a fact to which even John Yoo recently called attention) and the powers of administrative agencies in the separation of powers system. While one might find reasons to characterize their statements about the judiciary as being reflections of ignorance, it appears instead to be more deeply pernicious than that. (It is all the more egregious to millions that the man who is this ignorant about, and hostile to, the courts has been given the capacity to fill the seat left vacant by the passing of Justice Scalia, and kept vacant amid the Senate Republicans’ refusal to so much as grant Judge Merrick Garland a hearing.)

Never before has American government seen such a nefarious hostility to the institutions protecting these rights. While President Roosevelt provides a salient example of executive-judicial conflict, it is worth noting that President Roosevelt sought to expand protections of rights amid the New Deal, whereas the Court at that time was striking such protections invalid. As things stand currently, with undemocratic moves being made throughout the executive branch — whether the dissemination of falsehoods, the attacks on the media, the marked corruption, lack of transparency, and imposition of likely unconstitutional executive orders — and an all-too-obsequious and enabling legislative branch of the same party control, the courts stand currently as the sole buffer against further intrusion into fundamental democratic principles.

​It is not hard to imagine why the Trump Administration would be so hostile to them. It is also not difficult to see why it is so dangerous.
​
It is up to us as citizens to be all the more vigilant to guard these ever-more-fragile rights before they are long gone.

​In the aftermath of Mr. Trump’s upset on November 8, there was speculation as to whether the more extreme elements of his campaign positioning was rhetorical flair to appeal to the more extreme segments of the electorate, as opposed to genuine policy preferences. With the hiring of white supremacist and anti-Semite Steve Bannon as senior advisor and the nomination of Jefferson (“Jeff”) Beauregard Sessions for Attorney General, we got the answer loud and clear (and spoiler: many aren’t happy with that answer).
 
The Attorney General, the head of the Department of Justice, is a position whose importance cannot be overstated, adjudicating matters ranging from the criminal justice system to immigration to civil rights and voting rights. The position filling this position must be sympathetic to such matters of justice and equality. After all, the operative word in “Department of Justice” is, you know, justice.
 
For this role, Mr. Trump has nominated Senator Jeff Sessions, a man whose hostility to civil rights and voting rights cannot be overstated.
 
In the aftermath of the Supreme Court decision of Shelby County v. Holder (2013), states whose preclearance requirements with respect to the Voting Rights Act capitalized on the relaxation of voting rights regulations by passing new restrictive legislation on such issues as voter ID and the number of polling places, issues that disproportionately impact minorities and the poor.
 
2016 was the first presidential election that the United States had since the enactment of these new voting constraints, and we saw the egregious impact, with 868 fewer polling places than in previous elections. For example, North Carolina, Texas, Wisconsin, and others enacted new voting restrictions by way of stricter voter ID law. The largest county in Arizona, Maricopa County, reduced the number of polling places by 70% between 2012 and 2016, from just 200 to 60.  The Leadership Council on Civil Rights studied the 381 counties affected by Shelby for which data were available in 2012 or 2014, and found that 43% of them had reduced the number of voting locations.
 
Indeed, the number of polling place closures fits quite clearly along the lines of the states affected by the holding, with 212 closures in Arizona, 403 closures in Texas, 103 closures in Louisiana, 44 closures in Mississippi, 66 closures in Alabama, 12 closures in South Carolina, and 27 closures in North Carolina. Such closures have the result of producing inordinately long lines in order to vote, with some states providing only two hours of time away from work to vote, and some states not having any such law in place. Even if able to take time away from work (and in many cases the lines vastly exceeded two hours), there are significant opportunity costs to lost time away from work, potentially billable hours.
 
Amid what will soon be a very conservative Supreme Court, and a challenging terrain in which to defend voting rights for all Americans, we deserve – indeed, we require –  an Attorney General who is on the side of voters. Which brings us to Jeff Sessions, whose controversial stances on civil rights include a defense of the KKK but for their use of marijuana (because that’s the real problem with them?), who characterized the NAACP and the ACLU as “Communist-inspired” and “un-American,” and who allegedly told an African American staffer that he should be careful what he said to white people. Indeed, in 1986 his past of racial discrimination disqualified him from the post of being a federal judge, and those who defend civil rights are now left praying that the 115th Congress is not more racist than the 99th Congress was.
 
Within the realm of voting rights, Sessions has been equally antagonistic, characterizing the Voting Rights Act of 1965 as a “piece of intrusive legislation,” this comment about a law that outlawed the racially discriminatory practices that violated the Fifteenth Amendment of the Constitution of the United States. As a United States attorney in Alabama in the 1980s, he sought to prosecute an African American man for alleged voter fraud when registering African American voters (the fraud allegations were not substantiated and Sessions lost the case). Perhaps most surprising is that in the aftermath of Shelby County v. Holder (2013), Sessions denied that Shelby County, Alabama had ever had a history of voter discrimination (this coming from the state where many of the fiercest battles over voting rights were waged, as in Selma, and with civil rights activist and Congressman John Lewis staunchly challenging Sessions’ characterization).
 
The Voting Rights Act previously had stipulated that regions with histories of racial discrimination required prior authorization from the Department of Justice before enacting new voting legislation (ahem, restrictions). While this no longer applies, doubtless voting rights cases will continue to be waged in the DOJ and in courts. Needless to say, viewing Shelby County’s current state, not to mention its prior history, as not being discriminatory toward minorities, it is not difficult to see the damage that he could easily do when tasked with adjudicating which voting restrictions are acceptable given the Voting Rights Act’s provisions (to the extent that they remain intact).   
 
Congressional crafting of law almost always provides for some executive branch enforcement and/or rulemaking, but in some cases also provides a venue for litigants to themselves assert their rights. Indeed, Title VII of the Civil Rights Act of 1964, though originally a compromise with the Republican coalitions, ultimately proved to be a highly potent means through which to challenge discrimination based on race, sex, religion, or national origin. Thus, regardless of administrative decisionmaking, individuals were given a voice through courts.
 
The Voting Rights Act has no such provision for a private right of action. Rather, the power rests in the Attorney General himself or herself to institute proceedings to enforce the guarantees of the Fifteenth Amendment and the VRA’s other statutory provisions. Thus, absent a committed Attorney General, and with a conservative judiciary, progress within this domain can vanish with ease and without recourse by private parties.
 
Essential to democracy is the right of political participation. As over 62 million Americans are reminded, sometimes this yields bad results. However, it is the best system that we have, and preserving the franchise is fundamental to the democracy for which our nation is known (for now). Americans require an Attorney General committed to the Constitution and to enforcing basic rights, not undermining them. Jeff Sessions is not that person. It is incumbent upon the United States Senate to recognize that and to vote against him accordingly. 

​When I was 18 years old, I had the pleasure and privilege of taking a civil rights trip through the deep south. I spoke with Congressman John Lewis about how he and Bobby Kennedy inspired me. I visited the grave of civil rights worker James Chaney. I met Reverend Fred Shuttlesworth and members of the Little Rock Nine. And along with the rest of our group, we walked across the Edmund Pettus Bridge of Selma, Alabama, the site of some of the most acrimonious battles over voting rights, including Bloody Sunday.
 
On this trip also was my high school government teacher, whom I am glad to now call a friend. I asked him whether he would have joined the civil rights movement in that moment (despite his being a white man). He said he liked to think that he would.
 
At the time, I was more strident than I am now (I think). My progressive politics are more tempered by the reality in which I operate, with part of that reality being that politics is for grown-ups and about compromise among diverse preferences in a pluralistic society. I insisted that I would have been on the front lines. I like to think I would have been, and indeed have protested some of the egregious problems that I saw, whether the Iraq War or the decision in Ferguson, Missouri. But I do not know, and in the face of perhaps the greatest shock to our political culture in a couple generations (perhaps September 11, but it is unclear how they will measure against one another), I realize that there are legitimate concerns as to one’s willingness to put one’s safety at risk when seeking to defend the principles that matter most. Because while I believe there is nobility in exercising the right to peaceful protest for important causes, there is less nobility in martyrdom.
 
To be clear, I view Mr. Trump’s election win as legitimate. I do not believe that the election was rigged. I do not believe the election was hacked. I believe that the Democratic Party underestimated the extent of blue collar economic anxiety and white racial resentment, underestimated to what extent that would drive them to turn out for Mr. Trump. And I believe that rules of the game (Electoral College) were such that her votes were not distributed in a way as to produce a win for Secretary Clinton, and that the problems of the Electoral College should be addressed moving forward but not retroactively. And I believe that it is deeply hypocritical for those on the left to reject the outcome of the election, having condemned Mr. Trump for his declaration that he would only accept the results if he won. The proper time to have condemned Mr. Trump’s candidacy was during the campaign and on November 8, and sadly, many Americans will pay a dear price.
 
While the election was legitimate (Russia issues notwithstanding – yes, that’s a big caveat but I’m not going to go there), the policies that the victor represents are not. As I have written previously, I believe that America’s greatness lies in its embrace of diversity, of its recognition that our national origin, the color of our skin, our religion, or who we love does not lessen what we are worth. I believe that Mr. Trump’s hostility to women, minorities, Muslims, immigrants, refugees, and the LGBT community are a direct affront to our basic values of fundamental decency, and perhaps even more so that his lack of respect for democratic institutions and a free press compromise our ability to defend these rights in the face of ideological disagreement.
 
I have been torn as to the proper message of protest and other opposition to Mr. Trump – a demagogue who was elected legitimately this time – given that he is not yet in office and thus has not yet enacted any of the dangerous and un-American policies that he claims to defend (I use the word “claims” given his marked inconsistency in views).
 
But in watching as hate crimes surge around the nation – with over 200 incidents of hateful harassment, intimidation, and violence reported in the three days following Election Day –  I believe that now is the time for vigilance, and to put pressure on those Republicans who were not in the Trump coalition. I believe that waiting until the inauguration is far too late and thus in this case, too dangerous. The transition team is at work in shaping Mr. Trump’s agenda, from cabinet picks to particular policy items, and while it appears that healthcare will not be as decimated as we might have thought, it is still early, and the cabinet secretaries being floated are not policy experts nearly so much as the most obsequious among his inner circle (e.g., Giuliani, Flynn, Clarke, Palin, Carson). Mr. Trump could conceivably forge a more moderate path and be restrained by the more traditional Republicans (e.g., Paul Ryan), but they are not yet showing a commitment toward that end.
 
So to the extent that American voters can pressure them, to raise loud (though peaceful) voices in defense of basic equality and civil rights, there is no time to waste, whether in the form of protest or in the form of donating to important causes that are currently under siege. It is not about Democrat versus Republican, blue versus red, it is about preserving the basic principles of democracy and equality within which we can wage these important policy battles that divide the parties. And it is about moving America forward, rather than reverting not so much to family values generally but rather the Jim Crow-era values.
 
We are not having a Bloody Sunday right now. I pray that we won’t. But I believe that we owe it to those who lost their lives, who risked their lives, broke their flesh and bones fighting for basic principles of civil rights and voting rights, to not squander the progress of recent decades, but to fight to uphold these principles that are, in fact, what make America great.
 
I’m in. Are you? 

​Despite the fact that only 31 credible cases of voter fraud were identified in the 1 billion votes cast between 2000 and 2014 (thus averaging just over 4 cases per election year), voter fraud has been highlighted by Mr. Trump as a source of grave concern and the impetus for characterizing the election as “rigged.”
 
This is dangerous, for reasons that I and many others have articulated. Now I thought I’d provide some perspective on just how rare voter fraud is, by highlighting some strange events that, strange though they are, happen more often than does voter fraud.
 

• Coconuts falling on peoples’ heads cause approximately 150 deaths annually.
• 12 high school and college football players die annually.
• Nearly two dozen people die each year from flying champagne corks (over a third of which are at weddings).
• Bee stings cause approximately 100 deaths each year.
• Burns from scalding tap water cause approximately 100 deaths each year.
• More than 2,500 left-handed people are killed annually around the world using equipment designed for right-handed people.
• 22 people are killed each year from apparently sub-optimal encounters with cows.
• And because I can’t resist a West Wing reference, there is a slightly higher rate of death trying to get snacks out of vending machines, averaging 2.18 deaths per year.

 
We still get our caffeine or munchies fixes with the office vending machine. We don’t necessarily preclude our children from playing football. We certainly don’t stop using tap water and champagne is consumed frequently on holidays and other celebrations. And as a lefty myself, I certainly brave the right-handed world on a daily basis.
 
And these are all things with potentially fatal consequences. Voter fraud involves someone opting to break a law to be in all likelihood a not-remotely-pivotal actor in an election. Thus, we are almost assured not to feel the effect of these incredibly rare instances. The next time you’re concerned about voter fraud impacting American elections, consider the far greater – but still very obscure – threats that we face daily.

Among other oddities of the 2016 presidential election is that it will be the first presidential election following the invalidation of key aspects of the Voting Rights Act of 1965.
 
In Shelby County v. Holder (2013), the Supreme Court of the United States notably struck down the preclearance regime of the Voting Rights Act of 1965, holding that the coverage formula determining preclearance was no longer needed given contemporary progress. This section of the Voting Rights Act applied to those states with histories of discrimination, requiring that they obtain approval from the federal government before making changes to their election laws. The states to which it applied were Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia, along with parts of California, Florida, Michigan, New York, North Carolina, and South Dakota. This November will be the first presidential election in the aftermath of this controversial holding.
 
In the immediate aftermath of Shelby County v. Holder, many states took action on their state election laws. Indeed, shortly after the Court’s holding, having waited for the preclearance provision to be invalidated, the North Carolina state legislature passed legislation that imposed strict photo ID requirements, significantly cut back on early voting, and reduced the window for voter registration. Alabama likewise imposed a new strict photo ID requirement that would have required preclearance, and Mississippi moved to enforce its photo ID law which it had not been permitted to implement under the preclearance provisions of the VRA due at least in part to the difficulty of obtaining an acceptable form of ID. Moreover, the very day of the holding, Texas officials announced that they would implement the state’s strict photo ID law, a law that previously had not passed constitutional muster because of Section 5 of the VRA. While it would later be declared so strict as to be unconstitutional, many strict photo ID laws remain intact. Indeed, 34 states have laws requesting or requiring that voters show some form of identification at the polls, a requirement that disadvantages minorities and the poor.  
 
It should come as no surprise that the states to which preclearance applied were largely concentrated in the South given the prevalence of Jim Crow policies ultimately struck down by Congress and the courts. Such states traditionally have tended to be strongly Republican (e.g., Mississippi, Louisiana, South Carolina, Alabama), with strongly Republican (Democratic) states typically not the locus of massive campaigning compared with battleground states such as Florida, Ohio, and Pennsylvania.
 
There are, of course, some states to which Shelby applies that have consistently been relevant, namely Virginia and North Carolina. But this is not only the first election in which the Voting Rights Act protections will hold, but the first election in which more of these applicable states will be competitive. Indeed, with polls in Texas, Georgia, and Arizona all dramatically narrowed, the campaigns are converging on these three states that typically have not been considered in the toss-up (or even lean) category in decades.
 
Indeed, Georgia has not voted for a Democrat since 1992 (and very narrowly at that), with more recent presidential elections won in the state by wide margins. Texas has not voted for a Democrat since 1976. The only time since 1948 that Arizona has voted for a Democrat is 1996. In each of these states currently, Secretary Clinton could conceivably win, with Texas being the longest shot among the three and Georgia the most likely.
 
Even absent competitive elections, the last couple of decades have continued to show instances of voter intimidation and suppression of minority voters in southern states and beyond. People for the American Way documented, for example:
 

• Louisiana (2002): Flyers distributed in African American communities informing them that they could alternatively go to the polls on the following Tuesday.
• South Carolina (1998): A state representative mailed 3,000 brochures to people in African American communities, claiming that law enforcement agents would be “working” the election and indicated that the election “is not worth going to jail.”
• South Carolina (1996): Considerable voter intimidation in Charleston County.
• South Carolina (1990): Charleston County election officials sought to prevent African American voters from seeking voting assistance.
• Michigan (2004): State representative quoted as saying, “If we do not suppress the Detroit vote, we’re going to have a tough time in this election.”
• Texas (2004): Students at predominantly African American university were erroneously told that they were not eligible to vote in the county, despite legal precedent applying to their case.
• Florida (2000): Numerous instances of voter intimidation, especially in immigrant communities.
• North Carolina (2000): Allegations of voter intimidation at the polls.
• North Carolina (1998): GOP officials in some counties planned to videotape people in heavily Democratic precincts, saying that it was to prevent voter fraud, though it was considered in violation of the Voting Rights Act.
• North Carolina (1990): The North Carolina Republican Party sent postcards to 125,000 voters, 97% of whom were African American, giving them false information about voter eligibility and warning them about criminal penalties for voter fraud.
• Alabama (1994): Under the guise of investigating church arson, FBI approached 1000 people and interrogated voters about potential fraud and demanded that many submit handwriting samples.

 
This is a mere sampling.
 
To be clear, the preclearance provisions apply not to incidental incidents of intimidation, but rather the procedures according to which elections formally are conducted, though it indicates that, contrary to the Court’s claims, the Jim Crow South is far from dead.
 
This election is contentious for a number of reasons. The Democratic nominee is the first woman to run in a major party, and has high unfavorable. The Republican nominee has stoked racist, homophobic, anti-Semitic, xenophobic, sexist, and violent rhetoric contributing to such cries as “lock her up,” and signs with Swastikas and racist and sexist epithets. This, coupled with anxieties around crime and policing, as well as Second Amendment rights being discussed at length, is in many ways the perfect storm. That the Voting Rights Act protections of Sections 4 and 5 overturned in Shelby County will not hold is hardly the source of conflict this election cycle, but it is probably adding fuel to the fire.  
 
What is worth noting is that the various irregularities that were identified were not necessarily in regions with competitive races – indeed, most were not. The concern, of course, is that with heavy campaigning absent voting rights protections, we might feel the effects of Shelby County v. Holder all the more acutely than whatever treatment effect we might observe if her expansion of the voting base were in (more predominantly white) heartland states to which preclearance provisions did not apply.
 
While there is the normative desirability of voter participation, there is the reality that some states are not competitive, and with the Electoral College, there is not as much need to battle to win states such as Alabama and Mississippi (or on the other end of the spectrum, Massachusetts and Connecticut), which reliably vote for the same party every year. Secretary Clinton is showing a growing base of support in the South and southwest in such states as Georgia, Texas, and Arizona, regions that have the history of discrimination against which the Voting Rights Act had been working to guard. What remains to be seen is whether the increased need to fight for every vote in these southern and southwestern states yields changes to their voting rights landscape that have lasting adverse consequences for minorities’ political participation.

Despite the Republican Party's traditional association with fiscal and social conservatism, its current dilemma appears to be between democracy and delusion. 

​It is difficult to turn on the news, let alone a speech or tweet by Mr. Trump, that does not use one specific word: rigged.
 
Indeed, just today Mr. Trump went on yet another tweetstorm, with several tweets highlighting conspiracy theories that the media is rigging things in favor of his opponent Secretary Clinton. Mr. Trump has repeatedly made the claim that if he loses Pennsylvania, it will be because the election was rigged, despite the fact that Pennsylvania has voted for Democrats from 1992 onward. Even in August, 69% of Trump supporters in North Carolina believed that if Clinton wins, the election will have been rigged against him, with only 16% viewing it as being because she legitimately won more votes.
 
This is dangerous and frightening for a few reasons.
 
To begin with, voter fraud is all but nonexistent, with a comprehensive investigation finding only 31 legitimate cases of voter fraud out of a billion votes cast.
 
And it is not surprising, when thinking like the Downesian rational voter: the probability of being a pivotal voter is virtually zero, with a much higher probability of being penalized due to the illegality of that action. 
 
Yet despite the essentially inconsequential nature of voter fraud, it continues to be used as a justification for Mr. Trump to call upon his supporters to “watch” polls in “certain” areas, suggesting that they intimidate minorities in their precincts, which of course are far more predominantly Democratic. And distressingly, his supporters are answering Mr. Trump’s call to action, both pledging to “watch” minorities and immigrants, and discussing outright revolution and bloodshed in the event of a Clinton win. And as Nate Persily and Jon Cohen note, the lack of faith of democracy is driven in part by partisan identification, with only 52% of voters expressing continued faith in American democracy, but 6 in 10 Democratic voters still having faith in Democracy but only 4 in 10 Republican voters saying the same. Protection of democracy should not be a partisan matter. Rather, it is a system through which Democrats win sometimes and Republicans win sometimes, and that is healthy. Sadly, this issue no longer transcends party identification. It has gone from being about left versus right to being about Trump versus facts. 
 
That the Republican Party would be engaged in voter suppression efforts is, sadly, not new. One reality is that the Democratic Party typically thrives with higher turnout. Another is that the Democratic Party thrives especially with higher turnout among minorities, and that demographic changes (along with shifts toward a more socially tolerant worldview amid generational replacement) make outreach to new swaths of voters difficult for the Republican Party absent some changes to its social policy agenda. When looking to win an election, you can broaden your base, or you can maximize your existing base. Absent the confidence that a base strategy can garner an election victory, some sadly turn to restricting the opponent’s turnout, whether legislatively through voter ID legislation, or illegally through intimidation at polling places and the spread of misinformation. Trump himself recognizes this, tweeting on the 2012 election night that "more votes equals a loss." This is common knowledge but not expressed as blatantly in the public sphere. 
 
It is not new, but it is dangerous in that it attacks the very core of our democratic process, which depends on our accepting election outcomes as valid whether or not we were the victor, whether or not we are pleased. Absent a view that our votes count or that our election is legitimate, we lose also the faith in the legitimacy of the leaders to whom we look in the White House and in Congress (as sadly exemplified by Mr. Trump’s perpetuation of the birther movement and his recent reference to the Obama presidency in air quotes, thus giving ammunition to those seeking to challenge the legitimacy of the policies of his administration). It is dangerous and frightening. And more than that, it is un-American. And it is un-patriotic.   
 
Mr. Trump has a history of not accepting election outcomes that he finds displeasing. Indeed, right after President Obama won reelection by a commanding margin, he tweeted, “This election is a total sham and a travesty. We are not a democracy!” Yet Governor Romney was, as should be accepted of any adult in the public sphere, a gracious loser, and in a recent speech in Nevada with Joe Heck did his part to reinstate that approach: he said that he was out-organized (“I wanted to run in the worst way possible and that’s what I did, I lost”) and encouraged Republicans to turn out better this time around. It was a “better luck next time” approach that is sadly missing from this year’s Republican nominee and the supporters who have eaten up his conspiracy theories and propaganda as to the legitimacy of an election in which he might not be the victor.

Of course the most notorious contemporary example is Vice President Al Gore's concession of the hotly contested 2000 presidential election, the resolution of which controversially reached the Supreme Court in Bush v. Gore and culminated in his concession, "While I strongly disagree with the Court's decision, I accept it. For the sake of our unity as a people and the strength of our democracy, I offer my concession I also accept my responsibility, which I will discharge unconditionally, to honor the new president-elect and do everything possible to help him bring Americans together." (Ironically, Republicans should be very sensitive to the need to preserve institutional legitimacy given the challenges raised regarding the legitimacy of the Bush presidency in the aftermath of the Supreme Court's widely-criticized holding that determined the outcome).
 
Indeed, by all accounts Mr. Trump defied the system. By all accounts, the nomination should have gone to Marco Rubio, who likely would be tied or ahead in the current polls. Trump beat the odds. That he has proceeded to dig his own grave is a reflection on him, not on the media or our democratic institutions. Moreover, his conspiracy theories regard collusion between the Clinton campaign and the media have the additional adverse impact of leaving Americans unwilling to trust journalistic integrity. A free and independent media is a hallmark of democracy, and faith in that process likewise is essential.   
 
In our democratic process, sometimes our candidate wins. Sometimes our candidate loses. We pick ourselves up, we dust ourselves off, and we hope for success the next election cycle. We need political figures who serve as exemplars of respect for the democracy that we hold dear, and who respect our democratic institutions enough to abide by them. The spread of conspiracy theories, misinformation, and propaganda is no path toward America’s greatness, but rather its demise. 

​En route from Manhattan back to New Haven late at night last week, the fellow passenger asked me what I do. I said that I’m in academia, and when pressed “confessed” that I’m in political science, then bracing for the cringe-worthy demands of exclamations of how Donald Trump’s nomination could have come to be. (I haven’t an answer).
 
But what this man said also was that he felt frustrated at how “rigged” he viewed the system. “Don’t you think the system is rigged?” he pressed me, and then was surprised by my emphatic response of “No.”
 
The use of the word “rigged” is one that has figured prominently in the campaigns of Bernie Sanders and Donald Trump, who while embracing very different world views from a policy standpoint both embraced the anti-establishment sentiment for which a large share of the American electorate seemed in search.
 
The notion that a system could be rigged takes away the notion that one might, indeed, lose in a fair system (“fair and square,” as they say). There are indeed examples of rigged systems. We see such evidence in elections won with 95% of the vote such that any opposition candidate is inconsequential if ever legitimate. We see evidence when voting machines switch votes for presidential candidates and the executive leadership of voting machine companies writing a letter pledging commitment “to helping Ohio deliver its electoral votes to the President” in 2004, the outcome of which was determined by the State of Ohio. We do not see evidence of rigging in 2016, but rather the petulance of one unwilling to concede at the conclusion of a loss. This is not a view that is contingent upon a Clinton versus Sanders nomination, a Trump versus Rubio nomination, but rather based on the empirics of the admittedly eye-opening election season that we have witnessed unfold over the last several months, presenting more than our fair share of surprises but not corruption in the way that "rigging" suggests. 
 
It is not because our electoral institutions are perfect. They are not. But if it were a truly rigged system, it is unlikely that two such non-conformist candidates would have fared nearly so well. Despite Sanders’ loss to Clinton in the Democratic primary, he vastly outperformed predictions and, while losing by a more marked margin than did Clinton to Obama in 2008, still came remarkably close considering where he started out. It is far from controversial to say that Trump’s garnering of the Republican Party nomination defied expectations.
 
Characterizing the US electoral institutions as rigged not only mischaracterizes reality – with the empirical fact that “outsider” candidates fared well on the Democratic side and won on the Republican side – but it takes away from those who have won honestly, fairly and squarely. It is all well and good to want to change the system when in office, and by all accounts we do need to change certain electoral institutions. We have a decentralized election system that is confusingly varied by state, that in many cases disenfranchises ex-offenders, that in many cases requires the provision of identification that has a disproportionately adverse impact on minorities. We also have recently demonstrated some vulnerability to hacking, which incidentally could indicate some rigging (though largely in favor of those alleging rigging in the first place).
 
But the first step isn’t to complain about the process. It’s to win playing by the rules of the game, respecting the process (even respectfully disagreeing), and to create fairer rules from within office. 

​It is common practice across the nation to update voter rolls to account for people moving or becoming deceased, though only a handful of states engage in voter purging on the grounds of inactivity. Ohio is one such state that purges from its voter rolls those who have not voted in recent elections, which they define as having missed the prior three consecutive federal elections.
 
On the one hand, if people do not express an intent to vote, it may at first blush seem not to impose a harm. However, if they do choose later to vote and realize that they are no longer registered (as occurred in the context of a marijuana initiative in November 2015), they are then disenfranchised. What’s more, voters are struck from the rolls in Democrat-leaning regions of the state (often poorer and with higher percentages of minorities) at approximately double the rate as are voters in Republican-leaning regions, though it is worth emphasizing that both Democratic and Republican officials have purged inactive voters over the years.  
 
States have across the nation enacted or sought to enact a number of new restrictions with respect to voter registration and casting votes, with at least 180 restrictive voting bills introduced in 41 states in 2011 and 2012 alone. The Brennan Center reports that as of March 25, 2016, though 422 bills were introduced to enhance voting access, at least 77 bills to restrict access had been introduced in 28 states, largely emphasizing photo identification. The voting laws being enacted in various states (e.g., Texas, North Carolina) tend to be centered around discussions as to voter fraud versus voter suppression. Those putting forth arguments pertaining to voting fraud tend to emphasize maintaining the integrity of the election process so that people are not casting votes when they are not entitled to do so, whether because they do not live there, have been disenfranchised due to ex-offender status, or have already voted. Those on the other end of the spectrum call attention to the infrequency of actual voter fraud incidents – with one comprehensive investigation finding only 31 cases of voter fraud in one billion votes cast – along with the disproportionate burden that voter ID laws have on minorities and the poor, as well as the limited incentive to commit the felony of fraud given the virtual impossibility of casting a decisive vote.
 
The Brennan Center for Justice reported that as of the 2006 election, 416,744 voters (5.3% of the total registrants) in Ohio were deleted from the rolls in 2006. The distribution of voter purging across counties and over time is highly varied, they report, with 20,353 removed from the rolls of Franklin County between 1998-99 and 170,000 removed from the rolls of Cuyahoga County in 2001-02. For perspective, these are the Democratic strongholds of the state, with Franklin County containing Columbus and a total of 1.212 million people and Cuyahoga County containing Cleveland and a total of 1.263 million people.
 
Ohio is one of the main battleground states in American elections, having voted for President Obama in 2008 and 2012 but with George W. Bush garnering 118,775 votes more than did John Kerry in 2004 (out of 5,625,613 votes cast in the state), with the state ultimately determining the election. For those of you not keen on math, that is less than a third (28.5%) the number of people purged from the Ohio rolls in 2006. While some of the voter purging may well have been justified on the grounds of change of address or other factors making the individual no longer eligible to vote in that region, a nontrivial number were purged due to inactivity.
 
While Ohio Secretary of State John Husted says that this policy helps to keep lists current, one has to wonder what the actual cost is to having a longer voting list in the system, given that states are already checking for change of address and death. If lawfully registered, the cost of keeping on the rolls those who are not frequent voters is having a longer list in the system, meaning voter information guides are being sent to people who may or may not care, and poll workers may need to sort through more names on Election Day to find those seeking to vote. The benefit is preserving the constitutional right to vote for those entitled to do so, and at a more cynical level, avoiding the bad PR that comes with disproportionately reducing the voter registration of the poor and minorities.
 
Husted argues that if voting is so important to an individual, it would be reflected in their past voting behavior: “If this is a really important thing to you in your life, voting, you probably would have done so within a six-year period.” It is on this basis that Ohio is working to purge from its list the tens of thousands who have not voted since 2008. Yet missing the last two presidential elections is not unheard of, and the issues of racism and terrorism are sufficiently heated today that setting aside both of the presumptive candidates’ high unfavorables, one might feel that the current stakes are high enough to justify new political participation. Ohio’s turnout in 2012 was lower than that in 2008, and in both elections, there was a sufficient presumption of a large margin of victory that one might have sat out the election. Moreover, long lines at polling places, particularly in urban regions, may have dissuaded people from voting (particularly for those working on an hourly basis and thus unable to take off more time), thus giving a false impression of disengagement. This is all speculative, of course, but there are enough open questions to require that we give serious consideration before making such a strong assumption about those individuals’ interest in voting.
 
Some have made claims as to the normative desirability of higher if not universal political participation, while others are more skeptical as to the merits of enforcing higher turnout among those who are uninterested and/or uninformed. Regardless of where one stands with regard to how politically active one should be in their government, the Constitution’s provision of the right to vote does not come with fine print caveats of “use it or lose it.” While some might look down on someone not being engaged in previous elections, one should celebrate one coming to the party today rather than punishing someone by precluding them from exercising their constitutional right.
 
If states are going to remove voters for inactivity, they should allow same-day registration so as to ensure that those voters, conditional upon eligibility (age, address, identification), may indeed cast their ballot in the given election. But imposing complex rules opens the door increasing election irregularities that may not be at all nefarious, but rather reflections of complex election laws, limited voter information, and limited poll-worker training to manage questions and concerns about such issues as the proper use of provisional ballots, language assistance, disability assistance, the ability to request versus require photo identification, what have you. The headache of providing safeguards against wrongful purging is likely worse than that caused by a voter roll that includes both active and infrequent voters.