If, by now, you don't realize that Republicans are attacking both democracy and the rule of law itself in this country, I don't know what world you live in. But on today's BradCast we've got two fresh --- and disturbing --- examples/warnings. [Audio link to full show follows this summary.]

FIRST UP today: Did the far-right, pro-Trump propaganda outlet called One America News (OAN) obtain passwords for employees of voting system vendor Smartmatic and then share them with Trump attorney Sidney Powell after the 2020 election? That appears to be what Smartmatic is charging in recently filed court documents, according to CNN, as part of its billion dollar defamation lawsuit against the fake Trump TV "news" outlet.

OAN was just one of many such rightwing outlets that echoed and forwarded Team Trump's false claims of election fraud in 2020. OAN was particularly aggressive in their evidence-free mission to hoax viewers into believing that systems made by Smartmatic and Dominion, another voting system vendor, flipped votes to help Joe Biden that year. The claims against Smartmatic were particularly absurd, given that the company has just one contract in the U.S. for voting systems. That is here in Los Angeles County, were Biden reportedly defeated Trump in 2020 by nearly 2 million votes.

As explained today, however, the reason that the pretend "election integrity" advocates who emerged on the right following 2020, only to offer evidence-free claims and falsely tie Smartmatic to Dominion (and Venezuela's dead former President Hugo Chavez), is likely thanks in no small part to some exclusive reporting we did on the two companies here at The BRAD BLOG, circa 2008 to 2010, which was cited and bastardized by Powell and others on the right after 2020. You're welcome!

NEXT UP: A new legal chapter in a story that deserves much more coverage than it has received to date. In one respect, it's not surprising that it hasn't received much coverage, given that it is based on an absurd legal premise --- one already rejected by the U.S. Supreme Court --- that few thought would ever advance beyond the Trump-appointed U.S. District Court judge who initially gave it credence in a redistricting lawsuit filed by the ACLU on behalf of the NAACP against the state of Arkansas in 2022.

In short, the case was dismissed [PDF] before reaching the merits by U.S. District Judge Lee Rudofsky on the novel grounds that neither voters nor private organizations like the NAACP have the right to sue to enforce Section 2 of the Voting Rights Act. Only the U.S. Attorney General may do so, according to the Rudofsky. That news must have come as a great surprise to the hundreds of private plaintiffs who have successfully hundreds of such cases since adoption of the landmark Act in 1965. It also may come as a surprise to the U.S. Supreme Court which, as recently as last June, ruled in favor of private litigants in a redistricting lawsuit against the state of Alabama. Congress is likely shocked as well, given they have reviewed, rewritten and reauthorized the VRA several times since 1965, without ever noticing there was no private right of action to enforce the law.

While the initial ruling was ridiculous enough, a split decision by a three-judge panel on the 8th U.S. Circuit Court of Appeals in November, incredibly, allowed the lower court ruling to stand. But it got even more absurd this week, when, on Tuesday, the full en banc 8th Circuit Court of Appeals voted 7 to 3 deny a rehearing of the matter, upholding the original lower court's radical, unprecedented ruling. The ACLU described the ruling as "appalling and unjustified," after "More than 400 Section 2 cases have been litigated in federal court in the past four decades to protect the voting rights of racial and language minorities. Private plaintiffs have brought the vast majority of them."

The 8th Circuit, comprised of 10 Republican appointees and one appointed by a Democrat, is not even considered the most radical in the nation. That would be the 5th Circuit Court of Appeals which has recently rejected the notion --- along with SCOTUS --- that there is no right to private action for voters to sue under Section 2.

We're joined today by CHRIS GEIDNER, longtime legal journalist at Law Dork, to explain this gob-smacking series of rulings and what they mean moving forward, as the matter almost certainly will head to the U.S. Supreme Court. For now, the ruling is the law of the land "only" in the seven states that comprise the 8th Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota). That could change, however, once the notoriously anti-VRA High Court gets a crack at this case.

Geidner decries the "out-of-control" appeals courts which seem to no longer believe it is necessary to follow long-standing precedent, if it regards laws that they don't like. "And then things go up to the Supreme Court," he charges, "and it's almost a win-win for the conservatives on the Supreme Court because if they reverse one or two of every three ridiculous decisions, they are able to set themselves up as a 'moderating' force that pulls back the extremes, while they are still letting one of every three extreme rulings go through."

"One of the underlying bases for a legal system is stability," Geidner tells me today. "When you have a legal system that is in such upheaval that lower courts have been told from the Supreme Court that 'No precedent is too sacred. We will overturn any precedent if we decide it should be overturned,'" that leads appellate courts to think that "if there's a chance that their opinion can lead to a revisiting of a precedent that they think is wrong, why wouldn't they go for it?"

"The answer," he notes, "is the rule of law, and they shouldn't. That's up to the Supreme Court, and until the Supreme Court does it, they need to follow precedent. But that's not the world in which we are living."

We also get some thoughts today from Geidner on the curious, now nearly month-long delay by a three-judge panel on the U.S. District Court of Appeals in D.C. to issue their ruling in response to Donald Trump's ridiculous claim that he is immune from criminal prosecution for any actions he performed while serving as President. A ruling was expected by many to have been issued by now. The case was heard on an emergency basis, as Trump's scheduled March 4 federal trial for attempting to steal the 2020 election is currently on pause in the bargain. But, Geidner notes that "the fact that we are quickly approaching a month" since the case was heard by what appeared to be three skeptical jurists, it is now beginning to look like "a dereliction of duty" and "a failure on the D.C. Circuit's part."

Stay tuned...

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Article Categories: Arkansas, BRAD BLOG Media Appearance, Accountability, Vote Caging/Intimidation/Suppression, Republicans, U.S. Supreme Court, Dominion Voting, KPFK, Donald Trump, Voting Rights Act, BradCast, Election 2020, Gerrymandering/Redistricting, Smartmatic, Sidney Powell, OANN, Election 2024