06 December 22
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When a justice starts making jokes about a Black child wearing a KKK outfit as a hypothetical, something has gone incredibly awry.
Whether it was Justice Samuel Alito dissolving women’s economic and health interests into a pile of powder in Dobbs, or Justice Neil Gorsuch forgetting about the nonreligious student athletes in the “praying coach” case last term, the secret sauce here is to make the actual names and actual faces and actual suffering of the parties in any case about competing rights as small as possible, because then it is easier to rule against them and act like the consequences will be minimal.
In 303 Creative v. Elenis, a case testing whether the free speech rights of a web designer who wants to withhold her services from gay couples is in violation of that state’s public accommodations law, the conservative justices go one better: They completely vaporize the interests of same-sex couples seeking wedding services altogether. After all, as professor Hila Keren reminded us on this week’s Amicus podcast, there are no suffering parties on the other side of this appeal. There are no names and faces of couples refused services and forced to endure the humiliation of being told that their marriage is in fact “false” (the word used by Alliance Defending Freedom’s lawyer at argument). This case has no Charlie Craig and no Dave Mullins, the couple denied services in front of a horrified parent in a cake shop. There is only one face in this case—Lorie Smith, the web designer who has never made a wedding website for anyone, much less withheld a proposed wedding website from anyone due to their sexuality. (She just already knows that she will want to do that. Really!)
The result of this framing, which is certainly intentional on the part of Lorie Smith’s legal representation, is that we have no names, no faces, no pressing dignitary interests to bolster the state of Colorado’s compelling interest in fighting anti-gay discrimination. There is no trial record and there are no facts, and instead there is just a whole lot of spitballing about things that could happen someday in a comedic civil-rights-free galaxy far, far away. And what rushes in to fill the vacuum is a host of increasingly deranged hypotheticals, and also what now passes for high comedy at the Supreme Court. Let me say it again: It is one thing to diminish the interests and the pain of the parties you don’t care about in Hobby Lobby, in gun cases, in COVID cases. It’s something rather different to make fun of them.
Among some of the one-liners you may have missed, were you not tuned in to the arguments:
• Justice Samuel Alito joking that Justice Elena Kagan might be more familiar than he is with the website AshleyMadison.com, in a hypothetical about professional photographers. Ashley Madison, of course, holds itself out as a meeting place for customers seeking to have extramarital affairs. Alito opened with, “JDate … is a dating service, I gather, for Jewish people … Maybe Justice Kagan will also be familiar with the next website I’m going to mention, AshleyMadison.com …” “I’m not suggesting,” Alito chuckled. “She knows a lot of things.”
• Alito responding to a Ketanji Brown Jackson hypothetical about an all-white Christmas photography package (asking whether it would be discriminatory, which it would be) with his own hypothetical, bizarrely about a Black Santa at the mall who is faced somehow with a child dressed up in a KKK outfit. Alito is trying to probe whether Black Santa should not have to be photographed with the KKK kid: Haha. “If there is a Black Santa at the other end of the mall and he doesn’t want to have his picture taken with a child who is dressed up in a Ku Klux Klan outfit, Black Santa has to do that?” he asked. The spectators laughed uneasily as Alito joked: “You do see a lot of Black children in Ku Klux Klan outfits, right? All the time.” See, if everyone’s dignity and humiliation is hilarious, then nobody’s is serious. Except Lorie Smith’s, apparently.
• Kristen Waggoner of the Alliance Defending Freedom, representing the website designer, responded to the hypothetical from Jackson about an all-white Santa photography package for Christmas by saying that “there is a direct overlap in the musical of Hamilton,” because “in that case, we know they’re expressing a preference for who they are hiring because of race.” Jackson, at least, didn’t let her finish the analogy.
• Justice Gorsuch pressing Colorado’s Solicitor General Eric Olson to concede that the state of Colorado had forced Jack Phillips, the Christian baker in Masterpiece Cakeshop who refused services to same-sex couples, to undergo a state-mandated “reeducation training program.” Gorsuch asked, “Mr. Phillips did go through a reeducation training program … did he not?” Olson: “It was not a reeducation program … it was a process to make sure he was familiar with Colorado law.” Gorsuch: “Someone might be excused for calling that a reeducation program.” It was not, in fact, a reeducation program, but this is yet another notch in Gorsuch’s project to deride all of government as an endless string of soulless Orwellian bureaucrats intent on brainwashing innocents.
There is a difference, albeit a subtle one, between erasing one class of people while reifying another, and mocking the entire project of balancing genuine, and competing, interests. It was the latter that happened today at the court. And what we should realize is that it becomes easier to make this move if you can freestyle your way through wholly theoretical cases. You can just keep insisting that the only victim in this dispute—a dispute that was reverse engineered to have only one victim—is Lorie Smith.
But when you start lobbing around references to “Hamilton” and “Black Santa” and “Ashley Madison” and the riotously funny prospect of small Black kids dressed up as Klansmen, you’re in wholly new territory. So today’s hearing at the highest court in the land was about levity and mockery, and all the trivial examples of imaginary harms that will never come to pass. This is not just erasure of LGBTQ interests; interests which the state has an important and established interest in protecting. This is about mocking the obvious implications of creating a carveout from antidiscrimination laws with fatuous slippery slopes and petty humor.
It’s bad enough that this is what passes for sober analysis at the court in this case—that is already its own mess. Instead of reflection on that point, we have to grapple with the fact that it comes from the selfsame jurists who see every critique of their own conduct as intolerable. These are the jurists who keep insisting that declining public confidence in the court is the public’s problem, mind you. Meanwhile, treating important civil rights cases with dignity is not that hard.
This is an appeal that—if it is decided for Smith, as it surely will be—will have material and painful impacts for gay people around the country, and vast implications for those seeking to discriminate on the basis of race, intermarriage, and, as Justice Sotomayor kept emphasizing at arguments, disability. Treating it as such would have taken no extra labor and no extra effort from Alito and Gorsuch and Waggoner. Were this merely about bad jokes and laughable hypotheticals, it would be one thing. That it’s also about recasting the concerns of the once-invisible victim as the now merely ridiculous? That’s what makes it a tragedy.
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Deyana Jenkins, 20, holds a portrait of her late uncle, Willie McCoy, at her family home in Hercules, Calif., on April 30, 2019. (photo: Yalonda M. James/AP)
Flawed FBI data has left thousands of deaths uncounted and complicates efforts to hold troubled police departments accountable
Even though federal records indicate that fatal shootings by police have been declining nationwide since 2015, The Washington Post’s Fatal Force database shows the opposite is true: Officers have shot and killed more people every year, reaching a record high in 2021 with 1,047 deaths. The FBI database contains only about one third of the 7,000 fatal police shootings during this time — down from half when The Post first started tracking.
Fatal shootings by officers in at least 2,250 police and sheriffs’ departments are missing from the past seven years of federal records, according to an analysis of the database maintained by The Post, which began tracking the killings in 2015. The excluded data has created a misleading government picture of police use of force, complicating efforts at accountability.
The incomplete data also obscures a racial discrepancy among those killed by police that is larger than the federal data suggests. Black people are fatally shot by police far more often than is evident in the FBI data, The Post has found — at more than double the rate for White people.
Among the missing data: shootings by officers in 440 departments whose local governments received nearly $90 million in federal grants to track and report crime data; and shootings from another 700 departments required by local laws to report the killings to state authorities, but no higher.
In at least 34 states, laws require police to report crime data to the state. But most of the laws are vague about whether police shootings must be included, offering minimal accountability at the state or local level, The Post found. In California, for example, only half of departments’ fatal police shootings appear in the FBI data.
Boston was among the larger departments with missing data: The Post documented 11 fatal shootings by its officers since 2015, but none of those are recorded in the FBI’s records. The Chicago Police Department reported six officer-involved shootings, but The Post logged 45. Police in Boise, Idaho, fatally shot 12 people, whose deaths were not recorded in the FBI database.
“This shows that the data from the FBI, the FBI database, has largely failed,” said Rashawn Ray, a senior fellow at the Brookings Institution and a University of Maryland professor who has testified at state and federal levels about police reform. That some departments have received federal dollars while their shootings are unreported, he said, “speaks to how flawed the system currently is, not just the organizational structure of policing, but also the way that government funding operates.”
The FBI asks the roughly 18,000 law enforcement departments nationwide to report all homicides — including those by officers on duty — so that the information can be used for research and be made available to the public. But compliance is mandatory only for federal law enforcement. The Post found that only about 290 local departments reported all fatal police shootings to the FBI since 2015.
The decline in reporting is driven by multiple factors. In many cases, departments simply choose not to report fatal police shootings to the FBI. In others, departments are required by law to send data to state officials who neglect to forward it to the FBI. About a dozen departments told The Post they had failed to report shootings because of clerical errors and would improve their process.
In New Mexico, Farmington Police Chief Steve Hebbe said he incorrectly assumed that other departments that are called in to investigate his officers’ shootings would report the homicides. Farmington police fatally shot four people over seven years. Not one of those is listed in the FBI’s public database.
“What we wound up learning is that we need to change how we’re reporting,” Hebbe told The Post, adding: “If it’s our action, we need to be reporting it.”
In recent years, departments’ contributions to federal data have dwindled as the FBI transitions to a more detailed reporting system. The bureau said it rejects data that isn’t properly formatted.
Criminologists say that a lack of accurate FBI data makes it difficult to know the full scope of police use of deadly force, despite renewed scrutiny that began with the shooting death of 18-year-old Michael Brown in 2014 in Ferguson, Mo.
Experts say that the FBI’s flawed data conceals other patterns that could help the Justice Department identify troubled departments — and lead to reforms. A high rate of police shootings relative to other departments of a similar size could be a sign that an agency’s officers need additional training, said Jacob Kaplan, a criminologist at Princeton University.
“Without this kind of data, it’s hard to have the foresight of which agencies are going to have a problem,” Kaplan said.
In the California town of Vallejo, population 120,000, police have fatally shot six people in the past seven years. FBI records do not include any of them.
One of the people shot was Willie McCoy, a 20-year-old rapper who performed under the stage name “Willie Bo.” In 2019, police found McCoy, either asleep or unconscious, in his car in the drive-through lane of a fast-food restaurant with a gun in his lap, according to a special prosecutor’s report on the shooting. Officers ordered McCoy to show his hands, the report said. Officers said that when McCoy awoke, they thought he was reaching for the gun. They fired 55 times, killing him.
The report found that the six officers involved were legally justified in the shooting, although one was fired for handling his firearm in a way that officials said could have endangered a fellow officer. McCoy’s family disputes that he had a gun in his lap and has filed a civil rights and wrongful death lawsuit in federal court. “Allegations are just that — allegations,” lawyers for Vallejo said in a filing asking the judge to dismiss the case. “They are not proof VPD personnel actually used excessive force.” That suit is pending.
McCoy’s death and those of five others are absent from the FBI’s public database. California law requires that fatal police shootings be reported to the state. The state attorney general’s office then sends data to the FBI. Vallejo police did not respond to requests for comment.
The attorney general’s office said it relies on departments to report accurately and follows up to offer support, but the law has no penalty for noncompliant departments. The Post found that 500 fatal shootings in California — nearly half of the state’s total since 2015 — were missing from the FBI database.
The racial disparity in fatal police shootings in California is far larger than the nationwide disparity, The Post has found. Black people in the state are killed by police at nearly four times the rate of White people.
In Vallejo, two of the people killed by police were Black, McCoy being one of them. Three were Hispanic, and one was White.
McCoy’s brother, Kori, said the FBI records fail to capture the true picture of Vallejo police. “The sirens should have been ringing years and years ago,” he said.
Taking funds despite unreported deaths
The FBI has been collecting summarized statistics from police departments since the 1930s, including through its Uniform Crime Reporting Program, or UCR.
In the 1980s, the bureau introduced the National Incident-Based Reporting System to collect more details, including victim demographics, and in recent years has shifted departments to this program. But, as with the UCR, the new program is mandatory only for federal law enforcement agencies, and most local departments do not participate.
As an incentive, the Justice Department distributes about $285 million annually through the Justice Assistance Grant program. State and local governments, which pass the money on to area police and sheriffs’ departments, receive their share according to a formula that considers the amount of crime police departments report and the local populations.
Departments must report at least three years of homicide and other major crime data to be eligible for funding. The data does not have to be complete for departments to receive money, said Tannyr Watkins, a spokeswoman for the Office of Justice Programs. However, she said missing information may result in smaller grant awards.
On average each year, about 1,400 local jurisdictions are allocated funding under the program. Within those, 440 departments had no fatal shootings by police reported in the past seven years, but The Post found they had shot and killed nearly 1,300 people in that time. Their local governments received nearly $86 million in that time.
The Justice Department also offers funding to help police and sheriffs’ departments upgrade their computer systems “to establish or enhance their participation” in crime data reporting. There are no provisions in the grant for withholding funds.
The Post identified six departments — including the city of Boston’s and smaller sheriff’s departments — whose jurisdictions received nearly $2.6 million from the program between 2015 and 2021, yet their fatal police shootings are not included in the FBI data.
Boston police received the bulk of that funding — about $2.2 million — in 2016. Since then, Boston officers have shot and killed 10 people whose deaths are not recorded in the FBI database.
Mariellen Burns, a spokeswoman for the Boston Police Department, said that one of those shootings occurred in another jurisdiction and six had only recently been ruled justified by the district attorney. “When those came through, a step was missed and they weren’t updated,” she said. The remaining three are still under investigation. “We’re definitely going to have training reminders and refreshers for those who are responsible for this type of reporting,” she said, adding that it was helpful for the department to be made aware of the missing data. “We’re not going to get better unless we look at how we can improve.”
Some departments balk at reporting fatal shootings by police alongside homicides by civilians because most officers’ killings are ruled justified, criminologists said. The FBI records fatal shootings by police as “justifiable homicides-officer involved.”
“It’s been a long-running discussion,” said Michael C. Walker, a criminologist and former police chief in New Jersey. “Justifiable homicide is not a crime, so why is it housed in this publication called ‘Crime in the United States’?” In some cases, officer-involved homicides are proved to be crimes, such as the police killing of George Floyd in Minneapolis.
At a meeting in Pittsburgh this year, an advisory subcommittee for the FBI’s data collection program considered a proposal from some in law enforcement to exclude fatal shootings by police from the public database — and submit them instead to an internal FBI collection. Some information eventually would be made public, but only in summary form.
The group ultimately rejected the idea. “If the FBI stops reporting it, it’s going to look like they’re trying to hide the data,” said Princeton’s Kaplan, who, along with Walker, is a member of the committee. “I don’t see a benefit to switching.”
Loopholes, lax reporting and no enforcement
The lack of accountability on the state and local level is at the root of the missing FBI data. In Kansas, for example, departments must report “all felony and misdemeanor offenses” to the Kansas Bureau of Investigation, which said it sends the data to the FBI. The handbook on reporting data to the state notes that departments are “required” to report “justifiable homicides.”
But the state bureau interprets the law to exclude them. “Since a Justifiable Homicide isn’t a crime, there is no felony or misdemeanor offense to report,” Melissa Underwood, a spokeswoman for the Kansas Bureau of Investigation, said in an email.
Only two departments in the state have fatal shootings in the database, leaving more than 60 deaths unreported over the past seven years.
As of 2021, at least 14 states had laws that specifically required reporting of fatal police shootings to the state. Of those, five state agencies told The Post that they voluntarily forward data they receive to the FBI’s public database.
Virginia is the only state that requires a state agency to report local departments’ fatal police shootings to the FBI database. Still, The Post found that 63 fatal shootings by officers in 43 departments in that state are missing from the FBI data.
“We, VSP, don’t know what we don’t know,” Keon Turner, a data analyst for the Virginia State Police, said in an email. “The onus is on the agencies to enter the information at their level and forward it to us.”
A few states have consequences for failing to report, but those repercussions are often vague, and state agencies rarely, if ever, enforce them. The Post found no departments that had been penalized for noncompliance.
In Pennsylvania, a 2004 law requires departments to report all offenses to the state police. The state police, which sends the data to the FBI, said it interprets the law to include fatal shootings by police.
Although the law specifies that funding should be withheld for noncompliance, state police said they are unaware of any departments having been penalized. Departments “typically comply,” said Myles Snyder, a spokesman for state police.
But more than 50 fatal shootings by Pennsylvania police departments are missing from FBI data over seven years. Snyder said some departments have not switched to the FBI’s new reporting system, whose format he said prevented the state from forwarding those departments’ data. Pennsylvania law does not require police to transition to the new reporting system.
For those grieving after a deadly shooting by police, the realization that their loved one remains uncounted by the FBI deepens the pain of their loss.
“He wasn’t just a nothing. He was a person, and they killed him,” said Michelle White. Her brother, Glen Allen White, was fatally shot by a sheriff’s deputy in Pope County, Ark., in 2020.
White, 53, was drunk and distraught when family members called authorities for help. A deputy who arrived at the family’s home readied his Taser while White pulled out a folding knife, according to a report by the county prosecutor. White approached, and the deputy holstered his Taser and instead drew his gun.
The deputy yelled at White to stop moving and then fired four shots, the report said. White’s body crumpled on the dirt road.
The prosecutor declined to press charges, determining that the shooting was justified because the officer believed that a Taser could not have stopped White as he walked toward him with a knife.
White is one of three people shot and killed by Pope County deputies over the past seven years. All three shootings are absent from FBI records.
Asked about the omissions, Sgt. Rodney McNeese, a spokesman for the sheriff’s office, said Arkansas State Police investigates the deputies’ shootings and should report them to the FBI.
Arkansas does not have a law explicitly mandating that departments report their fatal shootings, but the FBI asks that the agency in the jurisdiction where a shooting occurred submit the data.
Regardless of whose job it was to report, Michelle White feels that her brother’s shooting should have been counted.
“If they don’t report anything, then you wouldn’t know if they make a habit of doing this,” she said. “If they make a habit of this, something needs to be done.”
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The Supreme Court will hear arguments on Wednesday about the independent state legislature theory, which contends that state judiciaries are powerless to modify or override decisions by state legislatures regarding federal election laws and maps. (photo: Kenny Holston/The New York Times)
In a North Carolina case, the court is being asked to decide whether to drastically expand the authority that state legislatures have over election maps and voting laws.
Chief Justice Nathan L. Hecht of the Texas Supreme Court, a Republican, has said it is “the biggest federalism issue in a long time, maybe ever.”
On Wednesday, the U.S. Supreme Court will hear arguments in Moore v. Harper, a dispute between voting rights advocates and North Carolina’s General Assembly, which is controlled by Republicans, that could drastically increase the power that state legislatures have over voting issues.
Just how much power is at issue could become clearer as the arguments play out. But there is no arguing how high the stakes are in this lawsuit. The court is being asked to decide whether state election laws and political maps passed by state legislatures — specifically, a Republican gerrymander of North Carolina’s 14 House seats that the state’s Supreme Court ruled unconstitutional this year — should continue to be subject to judicial review in state courts.
Republicans seeking to restore the legislative map have argued that the state court is powerless to act under what had been a fringe theory known as the independent state legislature doctrine. The theory argues that the federal Constitution gives state lawmakers sweeping power to draw maps and set election rules — even if they violate a state’s laws or its constitution.
The issue comes at a time when gerrymanders have become so extreme and technologically sophisticated that they can enable parties to almost indefinitely lock in political dominance. When new state legislatures convene next year, 28 will have a Republican majority (as will essentially Nebraska, which is nonpartisan in a Republican state), 19 will be Democratic and two will be split.
That is contentious enough by itself. But the Moore case also has a marked ideological cast. A Supreme Court increasingly in tune with the political right is being asked to ratify a legal concept favored by some ardent conservatives — one that four Supreme Court justices have already expressed at least tentative support for.
At the same time, many in the legal and political establishments see a dangerous subversion of democratic values.
Judge Luttig said that, absent changes in federal law governing the counting of electoral votes, an unconstrained legislature might be able to substitute its own slate of presidential electors for the ones voters had chosen on Election Day — the very strategy former President Donald J. Trump employed in trying to overturn his election loss in 2020.
The theory’s broadest reading would deny all other state government entities — courts, election administrators, governors, independent redistricting commissions — any say in rules on elections or districts.
That would upend centuries of legal tradition. State constitutions and courts have been a check on election laws for virtually all of the nation’s history, including during the extraordinary barrage of legal battles over election rules this year and in 2020.
But North Carolina Republicans argue that because setting “the times, places and manner” of holding elections was specifically assigned by the Constitution to state legislatures, state courts can no more overturn or modify election laws than they can override federal laws governing, say, clean water or worker safety.
“The reason, of course, that state courts don’t have any substantive role to play is that they’re not part of the legislature. It’s that simple,” said David B. Rivkin Jr., a constitutional lawyer and conservative commentator who has filed a friend-of-the-court brief in the case.
“If you don’t like a redistricting map or a state election law, you can absolutely bring suit in federal and state court,” he added. “What you cannot do is rely on any substantive provision in the state constitution to take it down.”
Proponents of the theory also say another concept favored by conservatives — reading the Constitution by the plain meaning of its text, and not leavened with modern interpretations — supports their argument. The Constitution delegates duties to legislatures only three times. That was no idle choice, they argue.
“By its plain text,” North Carolina Republicans told the justices, the Constitution “creates the power to regulate the times, places, and manner of federal elections and then vests that power in ‘the Legislature’ of each state. It does not leave the states free to limit the legislature’s constitutionally vested power.”
Opponents of the independent state legislature theory say it is a profound misreading of both history and constitutional law that, if accepted, would shatter checks and balances in state governments.
A ruling favoring the state legislators “would give them a free ticket to do what they want,” said Gov. Roy Cooper of North Carolina, a Democrat. “And what you will see is requiring strict voter ID, eliminating same-day voter registration, eliminating provisional ballots, shortening the period for early voting.
“What they want to be able to do is draw more Republican districts and engage in more gerrymandering.”
Accepting the theory would not free state legislatures from oversight by federal courts and Congress, which has its own constitutional mandate to write election laws.
But, in practice, the change would have sweeping ramifications.
Untrammeled gerrymandering sits atop the list. State court rulings that brought fairer political districts to North Carolina, Pennsylvania, Maryland, New York and elsewhere would be wiped away.
At least in federal elections, citizen ballot initiatives that created independent redistricting commissions in California, Arizona, Michigan and elsewhere could be invalidated. The same could be true of ballot initiatives that have addressed voting rights in states like Michigan and Arizona, or expanded voting by mail in places like Oregon.
New election methods approved by voters, such as ranked-choice voting in Maine and single-primary elections in California and Washington, could also be scrapped.
Federal courts would become principal arbiters of election laws — and, critics predict, would be swamped with litigation. But, for state elections, the same laws could be challenged in state courts, potentially forcing separate election systems for federal and state offices.
The theory also applies to constitutional rules for selecting presidents: Article II of the Constitution requires states to appoint presidential electors “in such manner as the Legislature thereof may direct.”
Judge Luttig said he opposed freeing state legislatures from judicial review of election matters. But the independent state legislature theory’s potential impact on presidential electors, he said, is of greater concern.
In lawsuits during the 2020 presidential campaign, Mr. Trump’s supporters effectively sought to win legal backing for the theory, and took that crusade to the Supreme Court after the election. The court refused to take the case.
“This was really the centerpiece of the effort to overturn the 2020 election,” Judge Luttig said.
Other election law scholars have said it is unlikely that putting the theory into effect could disrupt a future presidential election, in part because federal law requires that presidential electors be chosen on Election Day, and state laws delegate those choices to voters.
At first blush, the lawsuit would seem to face dim prospects before a Supreme Court whose majority believes the Constitution must be true to the intent of the framers. Even its advocates find no evidence that the Constitution’s authors debated the theory or paid attention to the use of “legislature” in Articles I and II.
State constitutions set rules for federal elections, such as requiring votes by ballot instead of by voice, even under the Articles of Confederation that preceded the Constitution, said Carolyn Shapiro, a constitutional law professor at the Chicago-Kent College of Law who has written extensively on the issue.
“There’s nothing in the contemporaneous materials,” she said, “to suggest that anybody intended” what proponents of the theory contend.
The theory also faces a logical hurdle: Article I delegates authority over elections to both state legislatures and Congress. No one suggests that election laws enacted by Congress can ignore the Constitution and are shielded from federal court review.
The theory is further hobbled by the fact that the Supreme Court itself said in 2019 that state constitutions and independent redistricting commissions were useful weapons in the battle against gerrymanders, in a landmark ruling that stated political maps were outside the purview of federal courts.
The idea that state legislatures had special electoral powers persisted over the decades, in debates like one over whether Civil War soldiers were legally able to cast ballots away from home. But it was widely dismissed until Chief Justice William Rehnquist raised it in a concurring opinion to the court’s ruling on the disputed 2000 presidential election.
He argued that an order by Florida’s Supreme Court to recount votes was invalid because it changed election law passed by the legislature. The majority of the court ignored the idea, and rejected it outright in 2015, saying Arizona voters could give the legislature’s redistricting authority to an independent commission.
But it resurfaced in 2020, when partisan fights over the legality of mail ballots drew approving references to the theory from Justices Brett Kavanaugh and Samuel Alito. Justices Clarence Thomas and Neil Gorsuch have also endorsed aspects of the idea, leaving the court one justice away — in theory, anyway — from a majority.
A majority for exactly what, however, is an open question. There are many versions of the theory, from those that make state legislatures all-powerful to less doctrinaire ones that allow state constitutions and state law to dictate some aspects of elections but not others.
If the court chooses any of them, it will end up ruing the day, said Nate Persily, a professor of constitutional law at Stanford University.
“Wouldn’t it be ironic,” he said, “if the Supreme Court, which worried about descending into the political thicket by regulating partisan gerrymanders, nevertheless throws our entire election system into disarray?”
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WARNOCK WON!
According to the polls, Democratic Sen. Raphael Warnock is slightly ahead of Republican Herschel Walker. (photo: Getty)
During the Nov. 8 general election, Warnock received 49.4 percent of the vote and Walker 48.5 percent. Although other Georgia Republicans won their races comfortably, Warnock’s advertising and fundraising prowess and Walker’s many scandals and controversies helped send this race to a runoff. (Georgia is one of the few states that requires runoff elections when neither candidate gets a majority of the vote in the general election.)
We aren’t issuing a forecast for this runoff as we did for the general election, but we have calculated a polling average. And as of Monday at 4 p.m. Eastern, Warnock was averaging 50.2 percent support, and Walker was averaging 48.2 percent. Again, this isn’t a prediction of the final results, just a summary of the polls conducted of the runoff.
The polls in Georgia ahead of November’s election were pretty accurate. In our final polling average of the state’s election for governor, Republican incumbent Brian Kemp led by 7.9 percentage points. He then won the election by 7.5. And in our final polling average of the U.S. Senate general election, Walker led by 1.0 point, which was 2.0 points off the actual election result. Although the polls had the wrong candidate in the lead, they were mathematically quite close to the actual margin. Polls are meant only to approximate the final result, not predict winners.
So, of course, Warnock’s 1.9-point polling lead is not ironclad. Although most of the nine runoff polls give Warnock the lead, every single one has been within the margin of error. (Because margin of error applies to each candidate’s vote share, a candidate’s lead has to be almost twice as large1 as the margin of error to be statistically significant.)
What’s more, a few of these polls have been from pollsters without established track records. That doesn’t mean they will be inaccurate, but it is a reason to take them with a grain of salt. For example, Phillips Academy just started polling this year, so they don’t have a FiveThirtyEight pollster rating, our assessment of how accurate and methodologically sound pollsters are.2 The same is true for Patriot Polling, which only surveys people via landline telephone (not cell phones), a methodological red flag.
In addition, Frederick Polls is a Democratic pollster that rarely releases public surveys. From 1998 to 2020, it released only seven polls that qualified for pollster-rating consideration, earning them only a provisional grade of B/C. Finally, we’ve analyzed 20 polls from Impact Research (under its former name, ALG Research), but only four from Fabrizio, Lee & Associates. Moreover, the two organizations’ partnership is new this cycle, so we haven’t had a chance to judge how accurate their polling is in combination.
However, five surveys from more established pollsters (Emerson College, InsiderAdvantage, SSRS, SurveyUSA and the University of Massachusetts Lowell) all consistently put Warnock a few points ahead of Walker. That said, it wouldn’t be shocking to see an unexpectedly strong performance from either of the candidates. Other factors agree with the polling that this race is tight, and Warnock’s polling lead is still smaller than the average polling error in U.S. Senate races since 1998.3 While Warnock may be better positioned than Walker, either candidate could still win.
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Duke Energy personnel work to restore power at a crippled electrical substation in Carthage, N.C., on Sunday after the Moore County sheriff said that vandalism caused a mass power outage. (photo: Jonathan Drake/Reuters )
The facilities were damaged by gunfire in an intentional act of destruction whose motive remains unclear, authorities said. No arrests have been made in connection with the incident.
The FBI is investigating the “willful damage” to power facilities in Moore County, said Shelley Lynch, a spokesperson for the FBI field office in Charlotte. She declined to provide further details.
About 32,000 customers of Duke Energy in southeastern North Carolina remained without power or heat late Monday. The county declared a state of emergency and implemented a curfew, and schools were closed Monday.
Moore County Sheriff Ronnie Fields said Sunday that law enforcement personnel were working to gather evidence and identify the perpetrators. Fields declined to say how many gunshots hit each substation or whether security cameras captured footage of the attacks, citing a need to protect the investigation.
Investigators are exploring whether the incident was connected to a drag queen show held in the town of Southern Pines on Saturday evening, Fields said, stressing that so far nothing has indicated a link to the performance.
The power outages began shortly after 7 p.m. on Saturday, authorities said, plunging area residents into darkness and leaving some with limited access to water.
The two crippled substations are in the towns of Carthage and West End, said Maj. Andy Conway of the Moore County Sheriff’s Office. The towns are separated by a 20-minute drive. Each is about 13 miles away from Southern Pines.
Jeff Brooks, a spokesman for Duke Energy, said multiple pieces of equipment were damaged at each location, some of them “beyond repair.” At one location, a gate was also damaged, he said. Brooks estimated that it will take until Thursday to restore power to all the company’s customers in the area.
Authorities have provided no information about a motive for the incident. The attack “wasn’t random,” said Fields on Sunday. When a reporter asked why the perpetrator had targeted Moore County, Fields said, “I don’t have a clue.” In brief remarks to reporters on Monday, Fields did not offer any updates on the investigation, saying only that the culprit — or culprits — “knew exactly what they were doing.”
The vandalism to the substations occurred the same evening as the drag performance in Southern Pines, which had sparked a backlash from far-right activists.
The performance, called “Downtown Divas,” was organized by a local LGBTQ nonprofit organization. The show was originally open to all ages, but organizers subsequently restricted it to those over 18, said Kevin Dietzel, executive director of the Sunrise Theater. Dietzel said he assumed that much of the criticism was “from people who didn’t understand the nature of the event.”
Organizers said they had received violent threats in the lead-up to the show, the Fayetteville Observer reported Friday. The event’s supporters and opponents both protested outside the venue on Saturday and dispersed without incident, Dietzel said.
At Sunrise Theater on Saturday night, the power went out around 8:40 p.m., Dietzel said. Drag queen Naomi Dix said she was about to introduce an act when the room went dark (Dix spoke to The Washington Post on the condition that she be identified only by her stage name out of fear for her safety).
Dix, 31, said she tried to keep the audience of about 300 people calm and upbeat. She asked them to turn on the flashlights on their cellphones, then led the crowd in singing “Halo” by Beyoncé. About half an hour later, the organizers sent everyone home as the extent of the blackout became clear.
At a press conference on Monday, North Carolina Gov. Roy Cooper (D) said that “regardless of motive, violence and sabotage will not be tolerated.” Cooper pledged that local, state and federal law enforcement officials would leave "no stone unturned” in the investigation.
Cooper said that he had spoken recently with the chief executive of Duke Energy. “We certainly need to learn from this incident,” he said. “We cannot tolerate this type of wide power outage to so many people.” There may be “things that need to change to make sure our infrastructure is protected,” he added.
Energy Secretary Jennifer Granholm called the outage a “serious incident” and said her department is working with federal partners as the investigation continues.
In Moore County, residents were preparing for several more days without heat or electricity. The community is accustomed to periodic power outages, whether from hurricanes or snowstorms. But this is “definitely different than anything we’ve ever faced before,” said Mike Cameron, the assistant town manager and fire chief in Southern Pines.
Cameron said the absence of functioning traffic lights had contributed to a car accident on Saturday night that sent four people to the hospital with minor injuries. On Monday morning, there was a house fire that appeared to be caused by an unattended candle, he said.
“If the power had been on, I don’t think any of those things would have happened,” he said.
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The loan from Daewoo may have represented a conflict of interest. (photo: Mark Wilson/Getty)
The loan from Daewoo, a company with ties to North Korea, should have been reported in public financial disclosures
Documents obtained by the New York attorney general, and reported by Forbes, on Sunday indicate a previously unreported loan owed by Trump to Daewoo, the South Korean conglomerate.
Daewoo was the only South Korean company allowed to operate a business in North Korea during the mid-1990s.
Forbes revealed that Trump’s relationship with Daewoo is at least 25 years old. At one point, Daewoo partnered with Trump on a development project near the United Nations headquarters in New York City, Trump World Tower.
Trump and Daewoo continued to do business together, including using Trump’s name on six South Korea-based properties from 1999 to 2007, according to the magazine.
The outlet reports that the debt in question “stems from an agreement Trump struck to share some of his licensing fees with Daewoo”.
According to documents reviewed by Forbes, the $19.8m balance remained the same from 2011 to 2016. Five months into Trump’s presidency, the balance dropped to $4.3m, according to paperwork that showcased Trump’s finances as of 30 June 2017.
Soon after, “Daewoo was bought out of its position on July 5, 2017,” the documents said, without disclosing who satisfied the debt.
Forbes reports that even though the loan was reported on the Trump Organization’s internal documents, it was not disclosed on the former president’s public financial disclosure reports. Under disclosure laws, Trump was required to submit the documents to federal officials during his presidential campaign and after he became president.
In 2016, Trump’s chief financial officer, Allen Weisselberg, said that Trump had disclosed all debts related to companies that Trump had a 100% stake in.
Despite the apparent gap in disclosures, Trump may not have violated any laws, though the existence of the debt still could have posed a conflict of interest.
While president, Trump bragged about his relationship with North Korean dictator Kim Jong-un, saying in 2018: “He likes me, I like him. We get along” and that “we fell in love”.
The two leaders met in person, but the relationship came to nought.
Meanwhile, on Monday, jurors began deliberating in the Trump Organization tax fraud trial in New York, in which the company is accused of operating a criminal scheme that allegedly involved fraud and tax evasion.
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A plant worker uses a crane to lift a cask of molten aluminum at Century Aluminum Company plant in Hawesville, Ky. in 2017. (photo: Luke Sharrett/The Washington Post)
A Century Aluminum plant in Kentucky and a recently closed Alcoa plant in Washington emit far more PFCs per ton of aluminum than Icelandic plants run by the same companies, according to an Inside Climate News analysis.
In 2021, this aluminum plant vented 23 tons of CF4 as well as a ton of hexafluoroethane — both are perfluorocarbons, or PFCs, that are among the most potent and longest-lasting greenhouse gases on the planet, according to the U.S. Environmental Protection Agency. The pollution equals the annual greenhouse gas emissions of 40,000 automobiles, ones that will effectively remain on the metaphorical road for tens of thousands of years.
Meanwhile, a newer plant also owned and operated by Century Aluminum in Grundartangi, Iceland, emits just one-sixth the PFC emissions per ton of aluminum compared to the company’s Sebree plant, according to an Inside Climate News assessment of EPA data, as well as financial and environmental reports published by Century and Nordural, its Icelandic subsidiary.
It’s a tale of two smelters: older U.S. plants with some of the highest PFC emissions rates in the world and their overseas counterparts with far lower emissions — even when they are operated by the same multinational companies. The contrast highlights why the U.S. aluminum industry needs revitalization, environmental advocates say, even as it has declined precipitously in recent decades.
“They’re a shell of what they used to be, but that doesn’t mean they are allowed to be a huge polluter, just because they’re old,” said Nadia Steinzor, a policy and research consultant with the Environmental Integrity Project in Washington, D.C. “If there are technological fixes that the industry can employ to lower or eliminate climate emissions, they should be required to adopt them.”
Enduring impact
Perfluorocarbons (PFCs) and carbon dioxide are both released during aluminum smelting. PFCs remain in the atmosphere much longer.
In a case similar to that of Century Aluminum, Alcoa’s Intalco smelter in Ferndale, Washington, emitted nearly 50 tons of PFCs in 2020 before the company temporarily shut down production that same year, according to the EPA.
That’s in contrast to Alcoa’s Fjarðaál smelter in Fjarðabyggð, Iceland, which has a PFC emissions intensity less than one-fortieth that of the recently shuttered Intalco smelter, according to an Inside Climate News assessment of EPA data; the company’s production data, which was obtained through a public records request; and data the company publishes for its facility in Iceland.
Jim Beck, a spokesperson for Alcoa, said “we do not disagree” with the assessment. Beck added that emissions from the Intalco facility were high “due to the older technology and operational instability that the facility was experiencing.”
Century Aluminum offered a similar explanation for its Sebree plant, the largest U.S. aluminum production facility operating at full capacity, which was completed in 1973.
“It is important to note that the Iceland facility is a newer and more technologically advanced” facility, Steinunn Dögg Steinsen, the vice president of health safety and environment for Century Aluminum, said in an email. Steinsen added that the smelting process at the plant in Iceland is more automated, resulting in more efficient production, while the Sebree plant relies more on manual controls, which are less precise. “This explains most of the difference in PFC emission between the plants,” she said.
Although they are considered nontoxic by the U.S. Occupational Safety and Health Administration, CF4 and hexafluoroethane belong to a class of synthetic, fluorine-containing chemicals known as “the immortals” because of how long they remain in the atmosphere. Once the gases are released, they are “essentially permanent additions to the atmosphere” and threaten “the public health and welfare of current and future generations,” the EPA notes.
However, unlike carbon dioxide, the primary driver of climate change, the EPA does not regulate PFCs.
American aluminum vs. Chinese aluminum
Twenty years ago, the U.S. led the world in aluminum production and in a worldwide effort to reduce PFCs, greenhouse gases that, pound for pound, are thousands of times worse for the climate than carbon dioxide, according to the UN’s Intergovernmental Panel on Climate Change. Now, just 1.5% of global aluminum smelting, or production, takes place in the U.S. — but efforts to reduce PFC emissions in the U.S. have stalled, according to an Inside Climate News assessment of EPA data, while the cleanest smelters in other countries have brought emissions of the potent greenhouse gas down to near zero.
Industry experts say it may be too late to try to curb PFC emissions from existing U.S. smelters.
Aging U.S. smelters are like Model T cars, said Barry Welch, a chemical engineering professor at the University of New South Wales in Sydney, who has consulted for many of the world’s leading aluminum production companies.
“They are out of date,” Welch said of the current fleet of U.S. smelters, which were built from 1902 to 1980. “They should be shut down.”
Yet security experts say the U.S. must find a way to keep the aluminum plants open. The strong, lightweight metal is used to make more fuel-efficient cars and airplanes as well as solar panels and satellites.
“Just as we are reliant on the Middle East for oil, we will soon be in position where we will be reliant on China and Russia for aluminum,” said Joe Quinn, the vice president of strategic industrial materials at SAFE Commanding Heights, based in Washington, D.C., which advocates for U.S. energy security. “There is a legitimate need to stabilize the aluminum sector for national security reasons.”
In written testimony submitted to the U.S. International Trade Commission in 2017, Century Aluminum executives said aluminum producers were being “decimated” by “unfair practices of Chinese aluminum producers.”
“American smelters from New York, to Indiana, to Washington have already closed their doors, depriving local workers and communities of sorely needed jobs and tax revenue,” company officials wrote. “The continued viability of the aluminum industry outside of China, and especially in the United States, is dependent upon a prompt and effective solution to China’s overcapacity and overproduction.”
In 2018, President Donald Trump levied tariffs on imported aluminum. The tariffs remain largely in place. However, in June, Century announced it was temporarily shutting down production at its largest U.S. plant, an aluminum smelter in nearby Hawesville, Kentucky.
It was the only U.S. smelter to make high-purity “military grade” aluminum, used in fighter jets and in lightweight armor plating. Century said at the time that the closure would last “nine to twelve months” and that it was due to “soaring energy prices.”
Few industries have contracted as quickly and as completely as U.S. aluminum smelting.
“There were 23 operating in 2000 and five now,” Andy Thompson, the president of the local United Steelworkers of America union in Robards, said of the U.S.’s last remaining aluminum smelters.
Of the five remaining facilities, only the Century Aluminum Sebree plant in Robards, which employs 625 workers, and a smaller Alcoa plant in Massena, New York, run at full capacity.
Brad Schneider, the judge executive, or head of the county government, for Henderson County, which includes Robards, said that if the Century plant ever closed, it would be a significant loss for the region.
“Generations of people have worked there, the same families,” Schneider said. “It would be a definite blow.
“We’re all saddened by what happened to Hawesville,” he said. “If we don’t solve or at least protect our heavy industry and their energy needs, we’ll regret it. On multiple levels.”
Steinsen, of Century Aluminum, said the company has no plans to shut down its Sebree facility in Robards. “Sebree has unique operational and commercial advantages that Hawesville does not, and we are confident that Sebree is well positioned to continue operating,” Steinsen wrote.
A 76% drop in PFC emissions
Aluminum smelters turn alumina ore into aluminum by feeding alumina powder into a bath of molten salt and running large amounts of electricity through the mix in a cell, or “pot.”
If the concentration of the alumina dips too low, PFCs, an unwanted byproduct, can form quickly.
EPA officials first became aware of the issue in the early ’90s, yet rather than propose regulations, they worked with aluminum manufacturers to see whether they could find a way to reduce PFC emissions without regulations.
The result, the agency’s Voluntary Aluminum Industrial Partnership, which launched in 1995, was wildly successful. PFC emissions per ton of U.S. aluminum dropped by 76% from 1990 to 2015, according to the EPA.
“In addition to the environmental benefits, participation improves operational efficiency and benefits a company’s bottom line,” a 2008 EPA report concluded.
In 2015, when the U.S. aluminum production was in steep decline, the EPA ended its industry partnership. While the end of the program did not appear to have an impact on plant activities, the EPA did not respond to questions about why they do not regulate PFC emissions from aluminum plants or if they plan to in the future, and declined repeat requests to speak with an agency expert currently working on emissions policies. A spokesperson for the agency said, “EPA continues to track facility specific emissions from the aluminum industry through the Greenhouse Gas Reporting Program.”
Today, PFCs are a small fraction of aluminum production’s total greenhouse gas emissions. The vast majority, about 70%, come indirectly from burning fossil fuels in power plants to run the energy-intensive smelters, according to a 2019 study published in the Journal of The Minerals, Metals & Materials Society.
But the remaining PFC emissions are still significant. In 2019, 7,510 metric tons of PFCs were emitted from global aluminum production, according to a study published last year in the Journal of Geophysical Research — Atmospheres. That equals the annual emissions of 12.5 million automobiles, according to the EPA.
Aging technology and the Inflation Reduction Act
In May 1998, Alcan Aluminum, the former owner of what is now Century Aluminum Sebree, completed a $1.6 million investment in new equipment for the facility. Alcan installed a “demand feed” system that optimized the rate at which alumina was fed into the aluminum pots.
The investment cut the emissions intensity of CF4, the primary PFC emitted in aluminum production, in half, from 2 to 3 tons of carbon dioxide equivalent per ton of aluminum to just over 1 ton of carbon dioxide equivalent, according to a 1999 EPA report.
The emissions reduction made Alcan a climate leader among aluminum producers in the late ’90s. Twenty-four years later, the emissions intensity of CF4 from the plant remains virtually unchanged, at just under 1 ton of carbon dioxide equivalent per ton of aluminum, making Century, the current owner, a climate laggard.
Steinsen said the company has focused on reducing the PFC emissions intensity from the Sebree facility this year. New controls were added, and “we anticipate that these changes will reduce the plant’s PFC intensity,” Steinsen said.
The recently passed Inflation Reduction Act, the single biggest climate investment in U.S. history, made $5.8 billion in grants and other incentives available for heavy industry to adopt emissions-abating technologies. Aluminum manufacturers could use the money to install better control systems that reduce PFC emissions and increase production efficiency, said Quinn, of SAFE Commanding Heights, the U.S. energy security advocacy organization.
The act also appropriated $500 million for “enhanced” use of the Defense Production Act. Quinn said the additional money could be used to subsidize the cost of electricity to produce aluminum, which the act designated as a “critical mineral.”
The Inflation Reduction Act could breathe new life into the U.S. aluminum industry, said Mike Tanchuk, a veteran of the aluminum industry. With the backing of Blue Wolf Capital Partners, a private equity firm, and the AFL-CIO labor union federation, Tanchuk seeks to harness funds under the act as part of an effort to buy Alcoa’s Intalco smelter, upgrade its technology and power the facility with renewable energy to manufacture “green,” or low-carbon, aluminum.
“Potential federal funding from the Inflation Reduction Act and the continued support from Governor Inslee and other leaders in Washington state have revived my hope that Intalco can be saved,” said Tanchuk, the head of the recently formed company Green Aluminum — Intalco Works. (Jay Inslee is the governor of Washington.)
Beck, of Alcoa, said the company has participated in discussions with a prospective buyer, “although the various conditions for a successful sales transaction have not been met to date.”
Tanchuk previously worked as an executive for Alcoa, where he oversaw a prior reopening of the Intalco smelter in 2002, and at Century Aluminum, where he oversaw an expansion of the Nordural smelter in Iceland in 2006. He said technology upgrades at the Intalco plant would result in significantly reduced PFC emissions similar to those of the Nordural plant.
“The planned modernization of Intalco will result in a significant reduction of emissions, including greenhouse gases,” he said. “We still face some hurdles caused by recent geopolitical turmoil, such as high energy prices, but these events only reinforce my strong belief that now more than ever we need a reliable supply of domestic aluminum.”
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