A Broken Democratic Process Led Us to the Roe v. Wade Earthquake

This week’s leak of a draft Supreme Court opinion striking down Roe v. Wade felt like a rare seismic quake in American politics: The majority-conservative court appears poised to reverse nearly 50 years of abortion rights. 

The final ruling won’t be known until this summer, and it could change by then. But beyond the peril for reproductive rights, the draft also exposed how badly democratic representation appears to be faltering. Two current justices were installed after GOP power-grabs in the Senate. Several senators, including Republicans, feel that the nominees lied during their confirmation hearings about their willingness to overturn Roe. 

The draft is the result of a decades-long conservative project to gain power in the courts. It’s now paired with a more recent push to undermine and, if necessary, steal elections. 

I sat down with Madiba Dennie, counsel for the Brennan Center for Justice, to talk about the draft opinion, Roe v. Wade, and what they tell us about this moment for democracy. Our conversation has been edited for length.

I wanted to try to separate out the draft opinion overturning Roe as a function of democracy. What’s your initial reaction based on that framing?

It’s a broken democratic process that even allowed us to get to this moment. Three of the sitting members of the court were appointed by a president who lost the popular vote. So from the baseline you have these people who were picked by someone whom most people in fact did not pick. The Republican candidate (for president) has been the choice of a majority of voters once since 1992.

Then you take it a step further: The Senate that confirmed them is so wildly malapportioned that 50 Democratic senators represent 41 million more Americans than the 50 Republicans. So at each step of the process, you have the justices getting more and more insulated, and less and less accountable, which I think contributes to the comfort they clearly feel making decisions that the majority of the country disagrees with and that also harm the majority of the country. 

It sounds like you’ve got a problem with the Electoral College and with the Senate itself, which are both designed to protect minority rights.

I sure do have a problem. The Senate and the Electoral College are designed to protect minority rights, but perhaps not the minority they had in mind. The minority they protected were wealthy, white, male landowners. That was the purpose then, when these things were originated, and that continues to be the effect.

The draft decision says, in essence, “Put this decision in the hands of the people’s elected representatives.” One thing this newsletter covers is that the people’s vote for those representatives is simultaneously being undermined. It seems like that goes right to the point.

We have extreme gerrymandering—political, partisan, often racist gerrymandering—that deliberately enhances the political power of some groups at the expense of other groups. This again is inherently anti-democratic because it means that some people just fundamentally have less of a say. Combine that with the latest wave of voter suppression that tries to prevent some people from voting. There’s the alarming new trend of election sabotage bills that would allow partisan political actors to manipulate who counts the votes, and whose vote counts. So we’re seeing this comprehensive approach to diminish people’s actual say. When a Supreme Court representing the views of a minority of the country then tells you to elect the right people if you want to change the policy, you already have created the ecosystem where a minuscule elite makes the decision and there is effectively no redress. 

Wisconsin is one place where the state Legislature really is gerrymandered to the hilt. There is a guaranteed Republican majority, so if the Supreme Court says hey, Wisconsinite, go out and vote your preference, you seem to be saying your influence for your state’s abortion policy is pre-limited.

[Justice Samuel] Alito is very well aware of that, that an abortion vote in a place like Wisconsin won’t mean very much. I’m not saying that voting is meaningless, I want to make that clear. But the political power there is very much diminished. And so it doesn’t make sense to say, if you’re harmed this way, you can remedy this harm this other way. Not when you know fully well that other door is closed.

Republican governors or legislatures are specifically trying to draw out Black-represented districts in Alabama and Florida, with all the legal challenges that invites. Meanwhile the draft ruling would affect Black women and women of color most drastically in its prohibition. How do you view the impact of that? 

Start with the representation question. Those Black women in Alabama and Florida don't have full membership in the political community. Once you then start regulating pregnancy, it means that people's rights and liberties are dependent on their reproductive status. The combination is that they are denied both bodily autonomy and membership in the body politic.

I think some people don’t appreciate how intrusive some of these laws can be. Some states have outright bans, some proposals would ban any contraception after implantation. Basically at any point in your life, as long as you’re susceptible to pregnancy, you can be a target for state imposition that fundamentally and severely reduces your freedoms and liberties. That’s not compatible with a democratic society.

Abortion itself can be a huge motivator. But do you think this draft ruling will sink in, in terms of the democracy issues that we’ve been talking about? 

It might, because there’s a lot in the draft opinion to be fearful of. Regardless of how you feel about abortion, the draft points the way to limiting privacy in same-sex marriage, intimate sexual relationships, contraception, even interracial marriage. So it may shake some people out of their slumber and wake them up a bit to, like, the real dangers that our democracy faces right now. They may realize that so many rights and laws and precedents and judicial interpretation itself is on a chopping block. So maybe people will see how stark that is and become more concerned and energized about it.

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T.W.I.S.™ Notes

Naturally-excitable Donald Trump Jr. met virtually with the January 6 committee on Tuesday and answered questions for a few hours. It’s the latest example of the committee reaching into Dad’s family and inner circle for insurrection answers. Did Junior tell the truth? Impossible to say, though it does pay to remember that the Senate Intelligence Committee, led by Republicans at the time, referred him to the DOJ for lying. 

Don Jr. wasn’t under subpoena this week. But you know who is? John Matze, the defrocked CEO of right-wing social media site Parler. Lots of alleged planning and insurrection talk apparently went down on Parler that the panel would like to discuss. Matze says he was fired from the site after trying to moderate white supremacists, domestic terrorists, and QAnon conspiracists.

A third Oath Keeper pleaded guilty to seditious conspiracy and is cooperating with prosecutors. William Todd Wilson, of North Carolina, wasn’t initially charged in the right-wing miiltia’s Jan. 6 conspiracy allegedly led by Stewart Rhodes. But he is now, and the fact that he pled guilty right off the bat means he’s likely been cooperating with the government for some time.

Wilson told a federal court on Wednesday that he witnessed Rhodes try to speak directly to President Trump by phone at around 5 p.m. on Jan. 6. Rhodes implored an unnamed intermediary to use armed militias to stop the transfer of presidential power. Wilson said Rhodes' request to speak to Trump wasn’t fulfilled at that time. 

Republicans who regularly traffic in disinformation shrieked the loudest this week about a new federal disinformation advisory board started by the Biden administration. Missouri Sen. Josh Hawley led the charge once the Department of Homeland Security announced the Disinformation Governance Board, alleging it will be used to crack down on conservatives’ free speech.

The board was started to help federal agencies coordinate the response to the ongoing and very real problem of disinformation designed to debilitate democracy. It doesn’t have the operational capability to crack down on anything. Still, DHS Secretary Alejandro Mayorkas had to launch a reassurance campaign once Republicans and right-wing media got in on the act. You’ll never guess what happened next!

It’s healthy to be skeptical of a government agency taking an interest in the information its citizens consume. As such, the board deserves good-faith scrutiny. But the disinformation it’s set up to counter is specifically weaponized to manipulate voters and interfere in elections. Like, for instance, the disinfo campaign Russia launched after the 2020 Super Tuesday primaries to discredit then-candidate Joe Biden. 

How did the Trump administration respond to this Russian interference on its watch? If you guessed “by doctoring the intelligence to protect Donald Trump’s political interests,” you’re a Breaking the Vote reader! The DHS Inspector General concluded this week that then-acting DHS Secretary and alpha-Chad Chad Wolf ordered the agency’s intel division to modify and ultimately hold back a bulletin detailing the Russian operation. Evidence shows he did it to avoid “(making) the president look bad,” and because its release “would hurt POTUS.” 

So how many Fox News segments and outraged Josh Hawley letters followed this disinformation threat and intel-meddling in the summer of 2020? Hint: It rhymes with “Pirro”.

Georgia Secretary of State Brad Raffensperger and Trump-backed challenger Rep. Jody Hice debated with other candidates Wednesday ahead of the May 24 GOP primary. Remember, Hice is Trump’s hand-picked choice to oust Raffensperger, who certified Biden’s 2020 win despite Trump’s attempt to subvert it. How did Hice do in telling the truth about 2020? Not great, Bob!

Raffensperger is extremely likely to be a witness once Fulton County prosecutor Fani Willis’ special grand jury begins hearing evidence in June. The panel began selecting jurors this week under heavy security in Atlanta. Willis is investigating whether Trump committed criminal election interference when he called Raffensperger on Jan. 2, 2021 trying to get him to “find 11,780 votes, one more than we need.”

North Carolina Republican Rep. Madison Cawthorn is facing seven primary challengers and a very obvious GOP campaign to run him out of office. Google at your own risk. In other news, though, a federal appeals court heard arguments in the case to keep Cawthorn off the ballot on 14th Amendment grounds. Federal District Judge Richard Myers, a Trump appointee, ruled in March that the case against Cawthorn can’t go forward because an 1872 ruling excused insurrectionists from the 14th Amendment. The appeals court heard a challenge to that ruling, and it should issue a decision soon.  

Let’s check in on Colorado’s leading election conspiracist Tina Peters, shall we? We’re still waiting for a judge’s ruling on whether Peters will be allowed to administer the 2022 election in Mesa County, where she’s still clerk. County officials testified a few weeks ago how Peters’ security breaches and other antics after the 2020 election cost the county hundreds of thousands of dollars and hundreds of work hours. 

All that drama, plus five pending felony counts, isn’t slowing Peters in her quest to run all of Colorado's elections as secretary of state. In fact, VICE News’ David Gilbert says Tina’s a juggernaut:

“Her first campaign finance report, finally filed on Tuesday, suggests she has little to worry about on that front. Her campaign brought in almost $160,000 from more than 2,000 donors, leaving her with $100,00 cash on hand, which compares pretty favorably to her main opponent, Pam Anderson, who has a little over $5,600 in her campaign bank account.”

If there’s one thing Tina Peters can count on, it’s the generous financial support of conspiracy benefactor and Dominion lawsuit target Mike Lindell. News of Elon Musk's Twitter deal apparently brought Lindell back to the platform, after he was banned post–Jan. 6. He was promptly banned again. 

“That takes too long too.” House GOP Leader Kevin McCarthy, discussing using the 25th Amendment and other options to remove Donald Trump from office, in a recorded conversation on Jan. 8, 2021.

Burn after cheating — Retired judge Michael Gableman just won’t stop destroying records of his Trump-fueled election investigation in Wisconsin, and it’s not clear anyone can make him. 

Semper fie — A man who was demoted and then kicked out of the Marine Corps for posting racist material online is now running to be the constable of Bullitt County, Kentucky.

Dis-appointment — Ken Eyring loved to write blog posts touting false stolen-election information like “Rampant Election Fraud Exposed!!” What better credentials for a seat on New Hampshire’s new secretary of state-appointed Commission on Voter Confidence? The commission is designed to restore waning voter trust in elections, and Eyring, who likes to destroy that trust, has been added to foster “diverse” views, the SoS said.

Lock him up, by the numbers — A slight majority of Americans say Trump should be charged with a crime for his role in the Jan. 6 insurrection. Fifty-two percent of adults say Trump should be charged, while 42 percent say he shouldn’t. It’ll be interesting to see if the televised January 6 committee hearings, starting June 9, move the needle for the public, or for the Justice Department. 

There’s no reason to think Republicans are ready to move on from Trump. NEW YORK TIMES 
Doug Mastriano embodies a Christian nationalist movement as he runs for governor: ‘We have the power of God.’ PHILADELPHIA INQUIRER

The great rage. THE ATLANTIC