washington, dc

The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Ed Kilgore

May 14: Why Everybody’s Talking About MAGA

Noting a shift in some of the rhetoric we are hearing from both parties, I tried to explain it at New York:

Earlier this week, I got an unusual communication from a member of the White House press corps who wondered if I had inspired Joe Biden’s use of the term ultra-MAGA for Rick Scott’s wildly right-wing 2022 agenda for Republicans. I owned up to contriving the term in an effort to describe Scott’s combination of Trumpian rhetoric with Goldwater-era policy extremism. But I had no idea if Biden or someone in his circle read my piece and decided to borrow the neologism or (more likely) came up with it independently for parallel reasons.

Biden hasn’t just hit Scott with “ultra-MAGA”; in the same speech, he also referred to Trump himself as “the great MAGA king.” And Senate Majority Leader Chuck Schumer has taken to railing against “MAGA Republicans” as well.

So Democratic leaders are now saying “MAGA” (Make America Great Again) where they would have once used “right wing” or “ultraconservative” or even “wingnut.” This appeared to be a strategic decision, not just a verbal tic or a tossed-off insult. And indeed, on Friday, the Washington Post reported that the rhetorical shift is the result of a six-month research project led by Biden adviser Anita Dunn and the Center for American Progress Action Fund:

“The polling and focus group research by Hart Research and the Global Strategy Group found that “MAGA” was already viewed negatively by voters — more negatively than other phrases like ‘Trump Republicans.’

“In battleground areas, more than twice as many voters said they would be less likely to vote for someone called a ‘MAGA Republican’ than would be more likely. The research also found that the description tapped into the broad agreement among voters that the Republican Party had become more extreme and power-hungry in recent years.”

Despite the potential liabilities, usage of “MAGA” and its variants has been spreading in Republican ranks as well — and the trend began even before Trump decided he liked Biden’s insult and started posting MAGA King memes on Truth Social. For example, Steve Bannon referred to Pennsylvania Senate candidate Kathy Barnette’s rivalry with the Trump-endorsed Mehmet Oz as “MAGA vs. ULTRA-MAGA.” The former Trump adviser was using “ULTRA-MAGA” as a compliment; in his eyes, Barnette is deeply devoted to The Cause, while the TV doctor is most palpably devoted to self-promotion.

So why is this happening now? And is the greater embrace of the term on both the right and the left just a coincidence? I don’t think so.

Democrats really need to make the 2022 midterm elections comparative rather than the usual referendum on the current occupant of the White House, who is held responsible for whatever unhappiness afflicts the electorate, which is reflected in Biden’s chronically low job-approval ratings. They also need to find a way to motivate elements of the Democratic base to vote in November, which isn’t easy because (a) Democratic constituencies (particularly young people) rarely vote in proportional numbers in non-presidential elections without extreme provocation, and (b) many base voters are “unenthusiastic” about voting thanks to disappointment over the limited accomplishments Biden and his congressional allies have chalked up since taking control of Washington.

The tried-and-true bogeyman who could help make 2022 comparative because he continues to meddle in politics and threaten a comeback is, of course, Trump. The specter of his return could be especially scary to young voters, whose unusually high 2018 turnout was attributable to their loathing for the 45th president. So it behooves Democrats to remind voters as often as possible that the Republican candidates who are on the ballot this November are surrogates for the Great Orange Tyrant. And invoking the red-hat symbolism of MAGA is an efficient way to do that. “Ultra-MAGA” suggests there are Republicans who are Trumpier than Trump, like Scott. The whole GOP, we can expect Biden to regularly suggest between now and November, is crazier than a sack of rats and getting crazier by the minute. That’s more important than the price of gasoline at any given moment.

For similar reasons, in intra-Republican politics, the MAGA brand is legal tender among the majority of GOP voters who turn to Mar-a-Lago for direction the way that flowers turn toward the sun. Wearing the red hat or referring to themselves as “MAGA warriors” is a way for Republican politicians to show a particular attachment to Trump. And ultra-MAGA is essential for candidates like Barnette who follow the Trump agenda slavishly but don’t have the Boss’s actual endorsement for whatever reason. It’s also a handy way for ambitious right-wing politicians to suggest there is a cause that will survive Trump’s own career and will indeed flourish under their own leadership. MAGA works a lot better as a symbol of Trumpism Without Trump than such debatable and obscure terms as national conservatism or conservative populism. When he goes after Mickey Mouse with a claw hammer, Ron DeSantis is definitely ultra-MAGA, especially compared to such damaged goods as Mike Pence, who is merely MAGA or even ex-MAGA.

So get used to it. Until we get a better fix on how to describe the ideology of the followers of Donald Trump, both they and their political opponents are likely to keep relying on the MAGA brand, which now means more than the nostalgia for the white patriarchy of yore that Team Trump probably had in mind when it came up with the slogan to begin with. If Trump runs for president in 2024, he’ll have to decide whether his slogan will be “Make America Great Again, Again” (as he has already redubbed his super-PAC) or something else. But for now, everybody pretty much knows it means one person’s dream and another’s nightmare.


Why Everybody’s Talking About MAGA

Noting a shift in some of the rhetoric we are hearing from both parties, I tried to explain it at New York:

Earlier this week, I got an unusual communication from a member of the White House press corps who wondered if I had inspired Joe Biden’s use of the term ultra-MAGA for Rick Scott’s wildly right-wing 2022 agenda for Republicans. I owned up to contriving the term in an effort to describe Scott’s combination of Trumpian rhetoric with Goldwater-era policy extremism. But I had no idea if Biden or someone in his circle read my piece and decided to borrow the neologism or (more likely) came up with it independently for parallel reasons.

Biden hasn’t just hit Scott with “ultra-MAGA”; in the same speech, he also referred to Trump himself as “the great MAGA king.” And Senate Majority Leader Chuck Schumer has taken to railing against “MAGA Republicans” as well.

So Democratic leaders are now saying “MAGA” (Make America Great Again) where they would have once used “right wing” or “ultraconservative” or even “wingnut.” This appeared to be a strategic decision, not just a verbal tic or a tossed-off insult. And indeed, on Friday, the Washington Post reported that the rhetorical shift is the result of a six-month research project led by Biden adviser Anita Dunn and the Center for American Progress Action Fund:

“The polling and focus group research by Hart Research and the Global Strategy Group found that “MAGA” was already viewed negatively by voters — more negatively than other phrases like ‘Trump Republicans.’

“In battleground areas, more than twice as many voters said they would be less likely to vote for someone called a ‘MAGA Republican’ than would be more likely. The research also found that the description tapped into the broad agreement among voters that the Republican Party had become more extreme and power-hungry in recent years.”

Despite the potential liabilities, usage of “MAGA” and its variants has been spreading in Republican ranks as well — and the trend began even before Trump decided he liked Biden’s insult and started posting MAGA King memes on Truth Social. For example, Steve Bannon referred to Pennsylvania Senate candidate Kathy Barnette’s rivalry with the Trump-endorsed Mehmet Oz as “MAGA vs. ULTRA-MAGA.” The former Trump adviser was using “ULTRA-MAGA” as a compliment; in his eyes, Barnette is deeply devoted to The Cause, while the TV doctor is most palpably devoted to self-promotion.

So why is this happening now? And is the greater embrace of the term on both the right and the left just a coincidence? I don’t think so.

Democrats really need to make the 2022 midterm elections comparative rather than the usual referendum on the current occupant of the White House, who is held responsible for whatever unhappiness afflicts the electorate, which is reflected in Biden’s chronically low job-approval ratings. They also need to find a way to motivate elements of the Democratic base to vote in November, which isn’t easy because (a) Democratic constituencies (particularly young people) rarely vote in proportional numbers in non-presidential elections without extreme provocation, and (b) many base voters are “unenthusiastic” about voting thanks to disappointment over the limited accomplishments Biden and his congressional allies have chalked up since taking control of Washington.

The tried-and-true bogeyman who could help make 2022 comparative because he continues to meddle in politics and threaten a comeback is, of course, Trump. The specter of his return could be especially scary to young voters, whose unusually high 2018 turnout was attributable to their loathing for the 45th president. So it behooves Democrats to remind voters as often as possible that the Republican candidates who are on the ballot this November are surrogates for the Great Orange Tyrant. And invoking the red-hat symbolism of MAGA is an efficient way to do that. “Ultra-MAGA” suggests there are Republicans who are Trumpier than Trump, like Scott. The whole GOP, we can expect Biden to regularly suggest between now and November, is crazier than a sack of rats and getting crazier by the minute. That’s more important than the price of gasoline at any given moment.

For similar reasons, in intra-Republican politics, the MAGA brand is legal tender among the majority of GOP voters who turn to Mar-a-Lago for direction the way that flowers turn toward the sun. Wearing the red hat or referring to themselves as “MAGA warriors” is a way for Republican politicians to show a particular attachment to Trump. And ultra-MAGA is essential for candidates like Barnette who follow the Trump agenda slavishly but don’t have the Boss’s actual endorsement for whatever reason. It’s also a handy way for ambitious right-wing politicians to suggest there is a cause that will survive Trump’s own career and will indeed flourish under their own leadership. MAGA works a lot better as a symbol of Trumpism Without Trump than such debatable and obscure terms as national conservatism or conservative populism. When he goes after Mickey Mouse with a claw hammer, Ron DeSantis is definitely ultra-MAGA, especially compared to such damaged goods as Mike Pence, who is merely MAGA or even ex-MAGA.

So get used to it. Until we get a better fix on how to describe the ideology of the followers of Donald Trump, both they and their political opponents are likely to keep relying on the MAGA brand, which now means more than the nostalgia for the white patriarchy of yore that Team Trump probably had in mind when it came up with the slogan to begin with. If Trump runs for president in 2024, he’ll have to decide whether his slogan will be “Make America Great Again, Again” (as he has already redubbed his super-PAC) or something else. But for now, everybody pretty much knows it means one person’s dream and another’s nightmare.


May 11: A National Abortion Ban Could Arrive As Soon As 2025

If the leaked Alito draft in Dobbs v. Jackson Women’s Health Organization turns out to be the actual majority opinion, the threat to abortion rights won’t simply be in red states. If and when they are in the position to do so, Republicans can be expected to pursue a national abortion ban by federal statute, as I explained at New York:

Democrats tried and failed this week to codify the abortion rights the Supreme Court is apparently on the brink of abandoning. Republicans could later try to turn the tables and codify national abortion restrictions. It won’t be immediate: If Republicans take control of the House and the Senate in the 2022 midterms, President Biden’s veto pen will prevent them from acting on abortion through the end of his term in January 2025.

But what happens then? The path is treacherous for those hoping to preserve reproductive rights in at least some parts of the United States. It’s entirely possible that Republicans will emerge from the 2024 election with control of the White House and both chambers of Congress. And under those circumstances, the GOP will be under intense pressure from its base to enact federal laws that outlaw abortion even in “blue” states. Mitch McConnell even acknowledged on Sunday that once Roe is overturned a national abortion ban is “possible.”

Republicans are very likely to flip the House in 2022, and that means it’s likely to stay flipped in 2024. As Cook Political Report recently noted, the last time control of the House flipped in consecutive elections was 1954. Meanwhile, the Senate landscape in 2024 is truly horrible for Democrats. They’ll be defending 23 Senate seats, including six in states Trump carried in 2016 or 2020. Republicans, on the other hand, will only be defending ten Senate seats, all in states Trump carried twice.

So the 2024 presidential election will likely be the ball game when it comes to power in Washington. And while both Bill Clinton and Barack Obama came back from midterm “shellackings” to win reelection, it’s hardly a solid betting proposition for Joe Biden (or whoever the Democratic nominee is if he decides to retire).

Even if Donald Trump or some other Republican is inaugurated in January 2025, and the party controls Congress, the size of the GOP Senate majority could limit their options for curtailing reproductive rights at the federal level. Republicans would have to get really lucky to emerge from the 2024 election with a 60-vote Senate supermajority. But Republicans could plausibly gain a Senate majority so comfortable that abolishing the filibuster would be more feasible than it is for Democrats today.

Today Republicans passionately defend the filibuster whenever Democrats complain that it’s arcane and obstructionist. So in this 2025 scenario, could they actually flip and nuke it themselves? Absolutely. Mitch McConnell’s term as Senate Republican leader runs through 2027, and he’s shown time and again that he is shameless when it comes to the pursuit and exercise of power. And if he’s retired by then, his successor will likely be even more ideologically attuned to the GOP’s activist base, which is intensely opposed to legalized abortion.

To be sure, giving up the filibuster would be difficult for a party that has relied heavily on anti-majoritarian mechanisms to thwart the popular will on so many occasions. But it was a Republican Senate that nuked the filibuster for Supreme Court confirmations in 2017, and the drive to reverse Roe v. Wade — now apparently at its omega point — was the single most powerful reason that happened. If Republicans find themselves with an opportunity to sweep away blue-state “abortion sanctuaries,” the pressure to end what many GOP activists call an “American Holocaust” would be hard to overestimate. Don’t let talk about Republicans caring more about tax cuts or destroying environmental or labor regulations than about “divisive” cultural issues fool you. The anti-abortion movement, which supplies much of the party’s grassroots energy and small-dollar contributions, has held a mortgage on the soul of the GOP for many years; it’s perfectly capable of calling it in.

Perhaps the most difficult question for Republicans on the brink of enacting federal abortion restrictions would be where to draw the line. In the past they have promoted a national ban on abortions after 20 weeks of pregnancy, based on the specious theory that this is the point at which a fetus can feel pain. If the Supreme Court opens the door to any restrictions lawmakers choose to impose, there’s no reason to think that they will continue to advocate for a standard under which most abortions would remain legal. But do they move to 15 weeks? Six weeks? A total abortion ban? And do they recognize exceptions for pregnancies caused by rape or incest, or situations where the health of the mother is at risk? There are no obvious answers to any of these questions, other than to observe that those who think of zygotes as babies will not be satisfied by half-measures.

Senate action on abortion could also be beside the point before too long. By 2025, the anti-abortion movement may have moved on to what will almost certainly be its ultimate goal: convincing the Supreme Court to recognize a constitutional “right to life” for the “unborn” that no state and no Congress could violate.

In other words, all of today’s Republican rhetoric about “letting the states” or “letting the people” decide abortion policy isn’t going to last very long. And those blue-state residents who are consoling themselves with the thought that only red-state governments will force every pregnancy to term may not be safe for long.


A National Abortion Ban Could Arrive As Soon As 2025

If the leaked Alito draft in Dobbs v. Jackson Women’s Health Organization turns out to be the actual majority opinion, the threat to abortion rights won’t simply be in red states. If and when they are in the position to do so, Republicans can be expected to pursue a national abortion ban by federal statute, as I explained at New York:

Democrats tried and failed this week to codify the abortion rights the Supreme Court is apparently on the brink of abandoning. Republicans could later try to turn the tables and codify national abortion restrictions. It won’t be immediate: If Republicans take control of the House and the Senate in the 2022 midterms, President Biden’s veto pen will prevent them from acting on abortion through the end of his term in January 2025.

But what happens then? The path is treacherous for those hoping to preserve reproductive rights in at least some parts of the United States. It’s entirely possible that Republicans will emerge from the 2024 election with control of the White House and both chambers of Congress. And under those circumstances, the GOP will be under intense pressure from its base to enact federal laws that outlaw abortion even in “blue” states. Mitch McConnell even acknowledged on Sunday that once Roe is overturned a national abortion ban is “possible.”

Republicans are very likely to flip the House in 2022, and that means it’s likely to stay flipped in 2024. As Cook Political Report recently noted, the last time control of the House flipped in consecutive elections was 1954. Meanwhile, the Senate landscape in 2024 is truly horrible for Democrats. They’ll be defending 23 Senate seats, including six in states Trump carried in 2016 or 2020. Republicans, on the other hand, will only be defending ten Senate seats, all in states Trump carried twice.

So the 2024 presidential election will likely be the ball game when it comes to power in Washington. And while both Bill Clinton and Barack Obama came back from midterm “shellackings” to win reelection, it’s hardly a solid betting proposition for Joe Biden (or whoever the Democratic nominee is if he decides to retire).

Even if Donald Trump or some other Republican is inaugurated in January 2025, and the party controls Congress, the size of the GOP Senate majority could limit their options for curtailing reproductive rights at the federal level. Republicans would have to get really lucky to emerge from the 2024 election with a 60-vote Senate supermajority. But Republicans could plausibly gain a Senate majority so comfortable that abolishing the filibuster would be more feasible than it is for Democrats today.

Today Republicans passionately defend the filibuster whenever Democrats complain that it’s arcane and obstructionist. So in this 2025 scenario, could they actually flip and nuke it themselves? Absolutely. Mitch McConnell’s term as Senate Republican leader runs through 2027, and he’s shown time and again that he is shameless when it comes to the pursuit and exercise of power. And if he’s retired by then, his successor will likely be even more ideologically attuned to the GOP’s activist base, which is intensely opposed to legalized abortion.

To be sure, giving up the filibuster would be difficult for a party that has relied heavily on anti-majoritarian mechanisms to thwart the popular will on so many occasions. But it was a Republican Senate that nuked the filibuster for Supreme Court confirmations in 2017, and the drive to reverse Roe v. Wade — now apparently at its omega point — was the single most powerful reason that happened. If Republicans find themselves with an opportunity to sweep away blue-state “abortion sanctuaries,” the pressure to end what many GOP activists call an “American Holocaust” would be hard to overestimate. Don’t let talk about Republicans caring more about tax cuts or destroying environmental or labor regulations than about “divisive” cultural issues fool you. The anti-abortion movement, which supplies much of the party’s grassroots energy and small-dollar contributions, has held a mortgage on the soul of the GOP for many years; it’s perfectly capable of calling it in.

Perhaps the most difficult question for Republicans on the brink of enacting federal abortion restrictions would be where to draw the line. In the past they have promoted a national ban on abortions after 20 weeks of pregnancy, based on the specious theory that this is the point at which a fetus can feel pain. If the Supreme Court opens the door to any restrictions lawmakers choose to impose, there’s no reason to think that they will continue to advocate for a standard under which most abortions would remain legal. But do they move to 15 weeks? Six weeks? A total abortion ban? And do they recognize exceptions for pregnancies caused by rape or incest, or situations where the health of the mother is at risk? There are no obvious answers to any of these questions, other than to observe that those who think of zygotes as babies will not be satisfied by half-measures.

Senate action on abortion could also be beside the point before too long. By 2025, the anti-abortion movement may have moved on to what will almost certainly be its ultimate goal: convincing the Supreme Court to recognize a constitutional “right to life” for the “unborn” that no state and no Congress could violate.

In other words, all of today’s Republican rhetoric about “letting the states” or “letting the people” decide abortion policy isn’t going to last very long. And those blue-state residents who are consoling themselves with the thought that only red-state governments will force every pregnancy to term may not be safe for long.

 


May 4: We Don’t Know For Sure What the Supreme Court Is Doing On Abortion Rights

Amidst all the understandable uproar over the leaked Alito opinion in the Dobbs case, I offered a small note of caution at New York:

The stunning leak of a draft majority Supreme Court opinion from Justice Samuel Alito entirely reversing Roe v. Wade and Planned Parenthood v. Casey has suddenly confronted Americans with the immediate prospect of life without constitutionally protected reproductive rights. Yes, many observers predicted that would be the outcome of this case, Dobbs v. Jackson Women’s Health Organization, particularly after the Court’s oral arguments last December. It’s also what Donald Trump, who appointed three of the justices in the purported majority, promised would happen back in 2016. And it’s the goal the anti-abortion movement and its wholly owned subsidiary, the Republican Party, have been working toward for decades. But it’s still shocking that normally tradition-bound and precedent-venerating justices are taking this fateful step despite widespread public opposition, at a time when a backlash could roil politics in unpredictable ways.

Or are they, for sure?

The Supreme Court said in a statement released the morning after the leak, “Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.” The draft is dated February 10, 2022, when it was circulated to other justices for comment. It is also far from polished; there are redundancies in the text, just as there are in “first drafts” of a lot of important documents. It was presumably prepared because Alito was chosen to write an opinion reflecting the will of at least five justices, as expressed in a conference just after oral arguments. But we do not actually know if the final decision will be substantially the same as this draft, or might differ in significant respects — just as we do not know at this point who leaked it to Politico and with what intent.

What we do know is that post-conference changes in the position of justices once draft opinions start circulating do happen, if not that often. And in fact, one of the most famous shifts in the Court happened on this very issue 30 years ago. Planned Parenthood v. Casey was widely expected to produce a reversal of Roe and then it didn’t, as I explained recently:

“As Justice John Paul Stevens (a Ford appointee and Roe defender) later revealed in his 2019 memoir, a preliminary-draft opinion circulated by [Chief Justice William] Rehnquist that overturned Roe got five votes. But during the long period of time before the decision was formulated and announced, Reagan appointee [Justice Anthony] Kennedy flipped, succumbing to a plea from [Justices Sandra Day] O’Connor and [David] Souter to help them find a solution that would make state restrictions like Pennsylvania’s constitutionally acceptable without the disruptive counterrevolution that reversing Roe would represent. This development surprised the suddenly displaced anti-Roe majority, and then the country.”

According to Stevens, Rehnquist’s draft was circulated on May 27, 1992. The ultimate 5-4 decision maintaining the essential holding of Roe with a new standard designed to accommodate more state restrictions on abortions was announced on June 29, 1992. It appears that Rehnquist’s majority evaporated right under his nose.

Although we have no particular reason to imagine this kind of switch might have happened in Dobbs, we do know from abundant reporting and from his conduct during oral arguments that Chief Justice John Roberts seemed uneasy with overturning Roe and Casey in one fell swoop, clearly preferring to uphold Mississippi’s 15-week abortion ban without opening the door to any and all abortion bans. Just a week ago, the Wall Street Journal speculated that Roberts wanted to flip one of the other conservatives to a more limited ruling:

“Chief Justice John Roberts tried during the oral argument to find a middle way. He appeared to want to sustain the Mississippi law on grounds that it doesn’t violate Casey’s test of whether there is an ‘undue burden’ on the ability to obtain an abortion. If he pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.”

That appears to be exactly the course of events that produced the Alito draft. But what we don’t know is whether Roberts has continued his efforts towards a “middle way” during the nearly three months since then, and if so whether they have borne fruit. And for that matter, we also don’t know if any of the four justices originally on Team Alito have issues with the scope and breadth of his draft opinion.

It can be argued that the difference between what Alito wrote and what Roberts wants is a distinction without a difference. Both men want ultimately to abolish reproductive rights, and differ only over the pace of the constitutional counter-revolution that would be required. And indeed, it’s not clear how any “middle way” would work. How do you get rid of the constitutional protection of pre-viability abortions without allowing the states to enact more ruthless ban’s than Mississippi’s? I surely don’t know, but would observe that nobody anticipated Casey’s “undue burden” standard until it was announced. Justices and their clerks can be quite innovative when they are putting together coalitions on the Court.

The fate of reproductive rights certainly looks bad right now, but we’ve been here before. So it would be prudent not to be overly confident of what the Court will ultimately do in Dobbs, exactly how it will affect people in need of abortion services, and what the political fallout will be. There’s a slim chance that the right’s long crusade to abolish Roe entirely will be frustrated at the 11th hour once again — in which case, the fury among pro-choice Americans over the Alito draft will be matched in intensity by the outrage of the anti-abortion minority.

 


We Don’t Know For Sure What the Supreme Court Is Doing On Abortion Rights

Amidst all the understandable uproar over the leaked Alito opinion in the Dobbs case, I offered a small note of caution at New York:

The stunning leak of a draft majority Supreme Court opinion from Justice Samuel Alito entirely reversing Roe v. Wade and Planned Parenthood v. Casey has suddenly confronted Americans with the immediate prospect of life without constitutionally protected reproductive rights. Yes, many observers predicted that would be the outcome of this case, Dobbs v. Jackson Women’s Health Organization, particularly after the Court’s oral arguments last December. It’s also what Donald Trump, who appointed three of the justices in the purported majority, promised would happen back in 2016. And it’s the goal the anti-abortion movement and its wholly owned subsidiary, the Republican Party, have been working toward for decades. But it’s still shocking that normally tradition-bound and precedent-venerating justices are taking this fateful step despite widespread public opposition, at a time when a backlash could roil politics in unpredictable ways.

Or are they, for sure?

The Supreme Court said in a statement released the morning after the leak, “Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.” The draft is dated February 10, 2022, when it was circulated to other justices for comment. It is also far from polished; there are redundancies in the text, just as there are in “first drafts” of a lot of important documents. It was presumably prepared because Alito was chosen to write an opinion reflecting the will of at least five justices, as expressed in a conference just after oral arguments. But we do not actually know if the final decision will be substantially the same as this draft, or might differ in significant respects — just as we do not know at this point who leaked it to Politico and with what intent.

What we do know is that post-conference changes in the position of justices once draft opinions start circulating do happen, if not that often. And in fact, one of the most famous shifts in the Court happened on this very issue 30 years ago. Planned Parenthood v. Casey was widely expected to produce a reversal of Roe and then it didn’t, as I explained recently:

“As Justice John Paul Stevens (a Ford appointee and Roe defender) later revealed in his 2019 memoir, a preliminary-draft opinion circulated by [Chief Justice William] Rehnquist that overturned Roe got five votes. But during the long period of time before the decision was formulated and announced, Reagan appointee [Justice Anthony] Kennedy flipped, succumbing to a plea from [Justices Sandra Day] O’Connor and [David] Souter to help them find a solution that would make state restrictions like Pennsylvania’s constitutionally acceptable without the disruptive counterrevolution that reversing Roe would represent. This development surprised the suddenly displaced anti-Roe majority, and then the country.”

According to Stevens, Rehnquist’s draft was circulated on May 27, 1992. The ultimate 5-4 decision maintaining the essential holding of Roe with a new standard designed to accommodate more state restrictions on abortions was announced on June 29, 1992. It appears that Rehnquist’s majority evaporated right under his nose.

Although we have no particular reason to imagine this kind of switch might have happened in Dobbs, we do know from abundant reporting and from his conduct during oral arguments that Chief Justice John Roberts seemed uneasy with overturning Roe and Casey in one fell swoop, clearly preferring to uphold Mississippi’s 15-week abortion ban without opening the door to any and all abortion bans. Just a week ago, the Wall Street Journal speculated that Roberts wanted to flip one of the other conservatives to a more limited ruling:

“Chief Justice John Roberts tried during the oral argument to find a middle way. He appeared to want to sustain the Mississippi law on grounds that it doesn’t violate Casey’s test of whether there is an ‘undue burden’ on the ability to obtain an abortion. If he pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.”

That appears to be exactly the course of events that produced the Alito draft. But what we don’t know is whether Roberts has continued his efforts towards a “middle way” during the nearly three months since then, and if so whether they have borne fruit. And for that matter, we also don’t know if any of the four justices originally on Team Alito have issues with the scope and breadth of his draft opinion.

It can be argued that the difference between what Alito wrote and what Roberts wants is a distinction without a difference. Both men want ultimately to abolish reproductive rights, and differ only over the pace of the constitutional counter-revolution that would be required. And indeed, it’s not clear how any “middle way” would work. How do you get rid of the constitutional protection of pre-viability abortions without allowing the states to enact more ruthless ban’s than Mississippi’s? I surely don’t know, but would observe that nobody anticipated Casey’s “undue burden” standard until it was announced. Justices and their clerks can be quite innovative when they are putting together coalitions on the Court.

The fate of reproductive rights certainly looks bad right now, but we’ve been here before. So it would be prudent not to be overly confident of what the Court will ultimately do in Dobbs, exactly how it will affect people in need of abortion services, and what the political fallout will be. There’s a slim chance that the right’s long crusade to abolish Roe entirely will be frustrated at the 11th hour once again — in which case, the fury among pro-choice Americans over the Alito draft will be matched in intensity by the outrage of the anti-abortion minority.

 


April 29: Republicans Have Screwed Up Senate Opportunities Before

Thinking about recent history, it occurred to me that Republicans had blown some easy Senate wins. and might do so again. I wrote about it at New York:

The dynamics of this year’s battle for control of the U.S. Senate were nicely captured recently by Kyle Kondik and J. Miles Coleman of Larry Sabato’s Crystal Ball: “There is a push and pull in the race for control of the U.S. Senate between the big-picture electoral environment, which clearly benefits Republicans, and the day-to-day developments on the campaign trail, which do not always clearly benefit Republicans.”

In other words, the overriding factor in competitive Senate races is the size of the likely pro-Republican midterms “wave,” which should lift all red-painted boats. But an undertow is entirely possible in individual races, as Mitch McConnell remembers.

“From an atmospheric point of view, it’s a perfect storm of problems for the Democrats,” the Republican leader said last month. “How could you screw this up? It’s actually possible. And we’ve had some experience with that in the past.”

Indeed they have. As a bit of a tonic for Democrats who are sinking into a slough of despond about the midterms, and the possibility of a Republican Senate that can thwart Joe Biden’s appointments and legislation, here’s a reminder of the three ways recent Republican Senate candidates have managed to blow races they should have won.

Being too wacky

While Republicans generally performed extremely well in the 2010 midterms, they fumbled two Senate races they were initially expected to win, in Delaware and in Nevada.

In Delaware, Republicans had a star Senate candidate in five-term congressman, three-term governor, and one-term lieutenant governor Mike Castle, a moderate who had been in statewide office for an incredible 30 straight years. He was heavily favored to flip the Senate seat held by Democratic place-holder Ted Kaufman, appointed to the seat when its long-time occupant Joe Biden became vice-president. But then in a huge shocker, Castle lost the GOP primary to veteran right-wing crank and Tea Party celebrity Christine O’Donnell, who had lost to Biden in a landslide two years earlier. After a disastrous general election campaign best remembered for the efforts she had to undertake to deny that she was a witch (a possibility she had herself raised in a 1999 appearance on Bill Maher’s show Politically Incorrect), she lost badly to underdog local elected official Chris Coons, who holds the seat to this day.

That same year Senate Democratic Leader Harry Reid was in deep trouble in Nevada. His job approval ratings were terrible, he was losing in polling matchups against every named Republican opponent. But when the most formidable of those opponents had a campaign meltdown (see below), he drew a general election fight with far-right former legislator Sharron Angle. The Republican nominee proceeded to alienate voters with out-there statements opposing the regulation of health insurers even as Reid used his lavish campaign treasure to remind voters of her past remarks favoring the privatization or even the abolition of Social Security — a deadly position in senior-heavy Nevada. Reid came back from near-political death to beat Angle by five points.

The ultimate example of a Republican Senate candidate being too nutty even for deep-red-state voters came in Alabama in 2017, in a special election to fill the vacancy created when veteran senator Jeff Sessions resigned to (briefly) become Donald Trump’s attorney general.

The eventual Republican Senate nominee, Judge Roy Moore, was a perennial candidate and a globally notorious theocrat (at one point he drove around Alabama hauling a huge stone edifice of the Ten Commandments he had tried to place in the state Supreme Court chambers). Roy had been removed twice from a state judicial post for defiance of federal courts. That he managed to snag a Senate nomination was a testament to the weakness of his rivals. The appointed incumbent and beneficiary of a Donald Trump endorsement, Luther Strange, was fatally tainted by association with the man who put him in the Senate, disgraced Governor Robert Bentley (who was forced to resign shortly after he filled the Sessions seat). Another Moore opponent was congressman Mo Brooks, whose habit of running bad campaigns was reinforced when he lost a Trump Senate endorsement in 2022. By the time Moore won the GOP nomination to face underdog Democrat Doug Jones, the judge’s extremist record and platform was being overshadowed by a drumbeat of allegations that he had engaged in creepy and even illegal misconduct toward underaged women.

It took a whole lot of crazy and creepy for a Republican to lose a Senate race in Alabama, but Roy Moore got it done; he lost to Jones in December of 2017.

Committing fatal gaffes

Even in this era of straight-ticket voting and partisan polarization, candidates can occasionally make mistakes so large that they cancel out any prior advantages. In the aforementioned 2010 Nevada Senate contest, Republicans wound up nominating Sharron Angle because front-runner Sue Lowden blew up her own campaign in one terrible moment when she endorsed the idea of patients bartering for health care services.

“You know, before we all started having health care, in the olden days, our grandparents, they would bring a chicken to the doctor,” she said on a local TV show. “They would say I’ll paint your house … In the old days that’s what people would do to get health care with their doctors. Doctors are very sympathetic people. I’m not backing down from that system.”

Soon “chickens for checkups” became Lowden’s unfortunate signature, and her candidacy sank like a stone.

Even more unfortunately for Republicans, in 2012 not one but two Senate nominees who seemed to be cruising towards a general election victory were felled by variations on the same exceptionally stupid gaffe: remarks defending abortions bans even in cases of a pregnancy caused by rape.

In Missouri, Congressman Todd Akin was favored to defeat incumbent Democratic senator Claire McCaskill before he answered a question about rape exceptions for abortion in this manner:

“First of all, from what I understand from doctors, that’s really rare. If it’s a legitimate rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something. I think there should be some punishment, but the punishment ought to be on the rapist and not attacking the child.”

The ignorant scientific assertion made immeasurably worse by the suggestion that victims are lying about rape was disastrous for Akin, leading to calls by both members of the Republican presidential ticket (Mitt Romney and Paul Ryan) for Akin to quit the Senate race and let the party choose someone less offensively bone-headed. Back-peddling and whining all the way, Akin stayed in the race and cost Republicans a Senate seat they expected to win easily.

A while after Akin’s fatal gaffe, Indiana treasurer and Senate nominee Richard Mourdock got caught in his own rape-abortion snare when he said:

“The only exception I have to have an abortion is in that case of the life of the mother. I just struggled with it myself for a long time but I came to realize: Life is that gift from God that I think even if life begins in that horrible situation of rape, that it is something that God intended to happen.”

Tea Party favorite Mourdock was already in a tight race against Democrat Joe Donnelly after upsetting veteran Republican Senator Dick Lugar in a primary. His suggestion that God wanted women to be raped offended people across the political spectrum, and had a lot to do with his eventual loss to Donnelly.

The twin defeats in Indiana and Missouri produced a whole cottage industry of Republican consultants hired to train conservative men on how to talk about women.

Running bad campaigns and having bad luck

Almost by definition losing Senate campaigns are not ideally competent. And good candidates are often the victims of bad landscapes for their party in a given election cycle. But sometimes campaigns that should succeed are met with a perfect storm of candidate fecklessness and external crosswinds.

That arguably happened to Republicans in the two most fateful recent Senate contests: the twin general election runoffs defeats in Georgia in January of 2021 that gave Democrats control of the Senate and a governing trifecta in Washington.

Now that Jon Ossoff and Raphael Warnock are in the Senate representing a state carried by Joe Biden, it may not be fully appreciated how heavily David Perdue and Kelly Loeffler were favored when the runoff campaign began. But they were the betting favorites until late in the race, as Fortune reported:

“According to the bets placed on the race — which often predict outcomes more accurately than polls — Republican candidates David Perdue and Kelly Loeffler were both cruising to relatively easy wins. ‘Until just before the election, people betting their own money reckoned that Republicans had this in the bag,’ says Thomas Miller, a Northwestern University data scientist who calculated the chances of victory in each race based on prices from the PredictIt.org political betting site.”

How did Republicans blow it? It was a team effort.

Appointed senator Kelly Loeffler, who was running in an all-party special election for the right to finish Johnny Isakson’s term after the veteran senator resigned for health reasons, spent much of the cycle frantically trying to head off a challenge from conservative Trump ally Doug Collins. Indeed, a big part of her strategy for making the runoff against Democrat Raphael Warnock was to keep Trump from endorsing Collins by becoming more MAGA than any Senate candidate in the country. She pursued and received an endorsement from the already-notorious Marjorie Taylor Greene. And she ran ads calling herself “more conservative than Attila the Hun.”

Loeffler beat Collins for a runoff spot, all right, but only after alienating the swing voters she was originally appointed to attract, while giving Warnock a free ride until after November.

Meanwhile, incumbent David Perdue was running a reelection campaign that paled in self-discipline, aggressiveness, and grassroots organization compared to Democrat Jon Ossoff’s. At a crucial moment in late October, when Perdue was trying to reach 50 percent and avoid a runoff, Ossoff called him a “crook” in a debate, leaving the incumbent spluttering and then refusing to participate in further debates through the runoff. This enabled the Democrat to debate an empty podium in December.

Perdue also got unlucky, contracting COVID-19 and having to go into quarantine five crucial days before the runoff.

But both Georgia Republicans got unlucky (albeit justly) down the stretch when their professed political lord and savior Donald Trump undermined their campaigns by coming into the state to campaign for them and then spending much of his time complaining about the state’s “rigged” election machinery. By near-universal assent, Trump’s rhetoric dampened GOP base turnout and in combination with the smart, tough and well-organized Democratic campaigns, cost Perdue and Loeffler their seats and Republicans their Senate control.

None of these examples, of course, mean that Republicans will misplay enough 2022 Senate races to cost them a victory they might otherwise win. But you cannot blame Mitch McConnell for wondering if history might repeat itself in an unfortunate way.


Republicans Have Screwed Up Senate Opportunities Before

Thinking about recent history, it occurred to me that Republicans had blown some easy Senate wins. and might do so again. I wrote about it at New York:

The dynamics of this year’s battle for control of the U.S. Senate were nicely captured recently by Kyle Kondik and J. Miles Coleman of Larry Sabato’s Crystal Ball: “There is a push and pull in the race for control of the U.S. Senate between the big-picture electoral environment, which clearly benefits Republicans, and the day-to-day developments on the campaign trail, which do not always clearly benefit Republicans.”

In other words, the overriding factor in competitive Senate races is the size of the likely pro-Republican midterms “wave,” which should lift all red-painted boats. But an undertow is entirely possible in individual races, as Mitch McConnell remembers.

“From an atmospheric point of view, it’s a perfect storm of problems for the Democrats,” the Republican leader said last month. “How could you screw this up? It’s actually possible. And we’ve had some experience with that in the past.”

Indeed they have. As a bit of a tonic for Democrats who are sinking into a slough of despond about the midterms, and the possibility of a Republican Senate that can thwart Joe Biden’s appointments and legislation, here’s a reminder of the three ways recent Republican Senate candidates have managed to blow races they should have won.

Being too wacky

While Republicans generally performed extremely well in the 2010 midterms, they fumbled two Senate races they were initially expected to win, in Delaware and in Nevada.

In Delaware, Republicans had a star Senate candidate in five-term congressman, three-term governor, and one-term lieutenant governor Mike Castle, a moderate who had been in statewide office for an incredible 30 straight years. He was heavily favored to flip the Senate seat held by Democratic place-holder Ted Kaufman, appointed to the seat when its long-time occupant Joe Biden became vice-president. But then in a huge shocker, Castle lost the GOP primary to veteran right-wing crank and Tea Party celebrity Christine O’Donnell, who had lost to Biden in a landslide two years earlier. After a disastrous general election campaign best remembered for the efforts she had to undertake to deny that she was a witch (a possibility she had herself raised in a 1999 appearance on Bill Maher’s show Politically Incorrect), she lost badly to underdog local elected official Chris Coons, who holds the seat to this day.

That same year Senate Democratic Leader Harry Reid was in deep trouble in Nevada. His job approval ratings were terrible, he was losing in polling matchups against every named Republican opponent. But when the most formidable of those opponents had a campaign meltdown (see below), he drew a general election fight with far-right former legislator Sharron Angle. The Republican nominee proceeded to alienate voters with out-there statements opposing the regulation of health insurers even as Reid used his lavish campaign treasure to remind voters of her past remarks favoring the privatization or even the abolition of Social Security — a deadly position in senior-heavy Nevada. Reid came back from near-political death to beat Angle by five points.

The ultimate example of a Republican Senate candidate being too nutty even for deep-red-state voters came in Alabama in 2017, in a special election to fill the vacancy created when veteran senator Jeff Sessions resigned to (briefly) become Donald Trump’s attorney general.

The eventual Republican Senate nominee, Judge Roy Moore, was a perennial candidate and a globally notorious theocrat (at one point he drove around Alabama hauling a huge stone edifice of the Ten Commandments he had tried to place in the state Supreme Court chambers). Roy had been removed twice from a state judicial post for defiance of federal courts. That he managed to snag a Senate nomination was a testament to the weakness of his rivals. The appointed incumbent and beneficiary of a Donald Trump endorsement, Luther Strange, was fatally tainted by association with the man who put him in the Senate, disgraced Governor Robert Bentley (who was forced to resign shortly after he filled the Sessions seat). Another Moore opponent was congressman Mo Brooks, whose habit of running bad campaigns was reinforced when he lost a Trump Senate endorsement in 2022. By the time Moore won the GOP nomination to face underdog Democrat Doug Jones, the judge’s extremist record and platform was being overshadowed by a drumbeat of allegations that he had engaged in creepy and even illegal misconduct toward underaged women.

It took a whole lot of crazy and creepy for a Republican to lose a Senate race in Alabama, but Roy Moore got it done; he lost to Jones in December of 2017.

Committing fatal gaffes

Even in this era of straight-ticket voting and partisan polarization, candidates can occasionally make mistakes so large that they cancel out any prior advantages. In the aforementioned 2010 Nevada Senate contest, Republicans wound up nominating Sharron Angle because front-runner Sue Lowden blew up her own campaign in one terrible moment when she endorsed the idea of patients bartering for health care services.

“You know, before we all started having health care, in the olden days, our grandparents, they would bring a chicken to the doctor,” she said on a local TV show. “They would say I’ll paint your house … In the old days that’s what people would do to get health care with their doctors. Doctors are very sympathetic people. I’m not backing down from that system.”

Soon “chickens for checkups” became Lowden’s unfortunate signature, and her candidacy sank like a stone.

Even more unfortunately for Republicans, in 2012 not one but two Senate nominees who seemed to be cruising towards a general election victory were felled by variations on the same exceptionally stupid gaffe: remarks defending abortions bans even in cases of a pregnancy caused by rape.

In Missouri, Congressman Todd Akin was favored to defeat incumbent Democratic senator Claire McCaskill before he answered a question about rape exceptions for abortion in this manner:

“First of all, from what I understand from doctors, that’s really rare. If it’s a legitimate rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something. I think there should be some punishment, but the punishment ought to be on the rapist and not attacking the child.”

The ignorant scientific assertion made immeasurably worse by the suggestion that victims are lying about rape was disastrous for Akin, leading to calls by both members of the Republican presidential ticket (Mitt Romney and Paul Ryan) for Akin to quit the Senate race and let the party choose someone less offensively bone-headed. Back-peddling and whining all the way, Akin stayed in the race and cost Republicans a Senate seat they expected to win easily.

A while after Akin’s fatal gaffe, Indiana treasurer and Senate nominee Richard Mourdock got caught in his own rape-abortion snare when he said:

“The only exception I have to have an abortion is in that case of the life of the mother. I just struggled with it myself for a long time but I came to realize: Life is that gift from God that I think even if life begins in that horrible situation of rape, that it is something that God intended to happen.”

Tea Party favorite Mourdock was already in a tight race against Democrat Joe Donnelly after upsetting veteran Republican Senator Dick Lugar in a primary. His suggestion that God wanted women to be raped offended people across the political spectrum, and had a lot to do with his eventual loss to Donnelly.

The twin defeats in Indiana and Missouri produced a whole cottage industry of Republican consultants hired to train conservative men on how to talk about women.

Running bad campaigns and having bad luck

Almost by definition losing Senate campaigns are not ideally competent. And good candidates are often the victims of bad landscapes for their party in a given election cycle. But sometimes campaigns that should succeed are met with a perfect storm of candidate fecklessness and external crosswinds.

That arguably happened to Republicans in the two most fateful recent Senate contests: the twin general election runoffs defeats in Georgia in January of 2021 that gave Democrats control of the Senate and a governing trifecta in Washington.

Now that Jon Ossoff and Raphael Warnock are in the Senate representing a state carried by Joe Biden, it may not be fully appreciated how heavily David Perdue and Kelly Loeffler were favored when the runoff campaign began. But they were the betting favorites until late in the race, as Fortune reported:

“According to the bets placed on the race — which often predict outcomes more accurately than polls — Republican candidates David Perdue and Kelly Loeffler were both cruising to relatively easy wins. ‘Until just before the election, people betting their own money reckoned that Republicans had this in the bag,’ says Thomas Miller, a Northwestern University data scientist who calculated the chances of victory in each race based on prices from the PredictIt.org political betting site.”

How did Republicans blow it? It was a team effort.

Appointed senator Kelly Loeffler, who was running in an all-party special election for the right to finish Johnny Isakson’s term after the veteran senator resigned for health reasons, spent much of the cycle frantically trying to head off a challenge from conservative Trump ally Doug Collins. Indeed, a big part of her strategy for making the runoff against Democrat Raphael Warnock was to keep Trump from endorsing Collins by becoming more MAGA than any Senate candidate in the country. She pursued and received an endorsement from the already-notorious Marjorie Taylor Greene. And she ran ads calling herself “more conservative than Attila the Hun.”

Loeffler beat Collins for a runoff spot, all right, but only after alienating the swing voters she was originally appointed to attract, while giving Warnock a free ride until after November.

Meanwhile, incumbent David Perdue was running a reelection campaign that paled in self-discipline, aggressiveness, and grassroots organization compared to Democrat Jon Ossoff’s. At a crucial moment in late October, when Perdue was trying to reach 50 percent and avoid a runoff, Ossoff called him a “crook” in a debate, leaving the incumbent spluttering and then refusing to participate in further debates through the runoff. This enabled the Democrat to debate an empty podium in December.

Perdue also got unlucky, contracting COVID-19 and having to go into quarantine five crucial days before the runoff.

But both Georgia Republicans got unlucky (albeit justly) down the stretch when their professed political lord and savior Donald Trump undermined their campaigns by coming into the state to campaign for them and then spending much of his time complaining about the state’s “rigged” election machinery. By near-universal assent, Trump’s rhetoric dampened GOP base turnout and in combination with the smart, tough and well-organized Democratic campaigns, cost Perdue and Loeffler their seats and Republicans their Senate control.

None of these examples, of course, mean that Republicans will misplay enough 2022 Senate races to cost them a victory they might otherwise win. But you cannot blame Mitch McConnell for wondering if history might repeat itself in an unfortunate way.


April 22: What Republicans Mean By “Rigged Elections”

I ran across an important distinction between two meanings of a term we hear a lot, and wrote about it at New York:

In an examination of the many, many statements Republican politicians are making these days about allegedly improper election procedures or voter conduct, the Washington Post’s Philip Bump made a crucial distinction that often gets lost in all the rhetoric:

“Maybe there was rampant fraud, maybe there wasn’t. But everyone could agree that the election was rigged against Trump by the very elites he was trying to disempower.

“One of the earliest articulations of this approach came from Sen. Josh Hawley (R-Mo.). He argued that the law expanding voting access in Pennsylvania was unconstitutional, implying that this gave Biden an unfair advantage. The law, passed by Republicans, had gotten to the state’s Supreme Court, with the chief justice saying that even if the law was invalid, the votes weren’t — a preview of how many similar allegations about ‘rigging’ would play out.”

In other words, you didn’t have to believe illegal conduct had occurred to claim that an election was “rigged.” Some Trump backers were using the term pretty much the same way Bernie Sanders supporters deployed it against Hillary Clinton and the Establishment Democrats behind her during the 2016 primaries: an unfair advantage baked into election laws and procedures, not a violation of them. A big difference, of course, is that Sanders supporters were alleging the system discouraged maximum voter participation, while MAGA folks allege the opposite: that pro-Democratic “elites” made it too easy for people to vote legally.

Trump’s inner circle, of course, has used “rigged” in an ambiguous way. Sometimes he and his 2020 campaign staff alleged (but never substantiated) actual lawbreaking, as in the wild November 19, 2020, presser when Rudy Giuliani and Sidney Powell promoted all sorts of sinister, even global, conspiracy theories. But other times Team Trump simply complained about the rules themselves rather than their violation. That was the idea behind all the litigation over extended deadlines for casting ballots by mail. There was too much legal voting by the wrong people.

“Curbside voting is ‘corrupt’ because … why? Because of fraud? Or because it’s an expansion of access in more Democratic areas? That it could be perceived as either, of course, is the point. If expanding the vote in general is treated as dishonest or illegal, as above, then you can simply wave your hand at any tool for making voting easier as something to be avoided at all costs.”

Expanded voting opportunities, of course, are open to Republicans as well as Democrats. And until Trump came along and began demonizing voting by mail, Republicans were as likely, and in some places more likely, to avail themselves of that and other “convenience voting” methods as Democrats.

What Trump understood, however, is that in nearly every state in-person votes are counted before votes cast by mail. And that meant if he could convince a disproportionate number of his own supporters to avoid voting by mail, he’d very likely have an early lead on Election Night and could declare himself the victor, deeming later-counted votes illegitimate. This was the “red mirage” scenario some of us predicted, which is exactly what happened.

But so ingrained have Trump’s dubious claims about voting by mail become in the Republican imagination that even those who don’t run around touting conspiracy theories still fight to make voting harder. Mike Pence, for example, is generally though to represent the more sober and law-abiding wing of the MAGA movement. But the “Freedom Agenda” he recently released highlights the following “election integrity” proposals:

“Make in-person voting the primary method of voting, encouraged and supported by all levels of government and election administration. Mail-in voting should be rare and only for a very limited set of circumstances, with clear guidelines and procedures for requesting, receiving, casting, validating, and auditing mail-in ballots.

“Prohibit early in-person voting — when allowed at all — more than ten days before election day.”

Is that about ending fraud? Or is it just about treating any system that isn’t rigged for Republicans as rigged for Democrats? Perhaps the fairest thing to say is that an awful lot of Republicans want to have it both ways, telling the MAGA ultras that those people are breaking every election law in sight, while telling each other with a wink that what’s bad for the donkey is good for the elephant.


What Republicans Mean By “Rigged Elections”

I ran across an important distinction between two meanings of a term we hear a lot, and wrote about it at New York:

In an examination of the many, many statements Republican politicians are making these days about allegedly improper election procedures or voter conduct, the Washington Post’s Philip Bump made a crucial distinction that often gets lost in all the rhetoric:

“Maybe there was rampant fraud, maybe there wasn’t. But everyone could agree that the election was rigged against Trump by the very elites he was trying to disempower.

“One of the earliest articulations of this approach came from Sen. Josh Hawley (R-Mo.). He argued that the law expanding voting access in Pennsylvania was unconstitutional, implying that this gave Biden an unfair advantage. The law, passed by Republicans, had gotten to the state’s Supreme Court, with the chief justice saying that even if the law was invalid, the votes weren’t — a preview of how many similar allegations about ‘rigging’ would play out.”

In other words, you didn’t have to believe illegal conduct had occurred to claim that an election was “rigged.” Some Trump backers were using the term pretty much the same way Bernie Sanders supporters deployed it against Hillary Clinton and the Establishment Democrats behind her during the 2016 primaries: an unfair advantage baked into election laws and procedures, not a violation of them. A big difference, of course, is that Sanders supporters were alleging the system discouraged maximum voter participation, while MAGA folks allege the opposite: that pro-Democratic “elites” made it too easy for people to vote legally.

Trump’s inner circle, of course, has used “rigged” in an ambiguous way. Sometimes he and his 2020 campaign staff alleged (but never substantiated) actual lawbreaking, as in the wild November 19, 2020, presser when Rudy Giuliani and Sidney Powell promoted all sorts of sinister, even global, conspiracy theories. But other times Team Trump simply complained about the rules themselves rather than their violation. That was the idea behind all the litigation over extended deadlines for casting ballots by mail. There was too much legal voting by the wrong people.

“Curbside voting is ‘corrupt’ because … why? Because of fraud? Or because it’s an expansion of access in more Democratic areas? That it could be perceived as either, of course, is the point. If expanding the vote in general is treated as dishonest or illegal, as above, then you can simply wave your hand at any tool for making voting easier as something to be avoided at all costs.”

Expanded voting opportunities, of course, are open to Republicans as well as Democrats. And until Trump came along and began demonizing voting by mail, Republicans were as likely, and in some places more likely, to avail themselves of that and other “convenience voting” methods as Democrats.

What Trump understood, however, is that in nearly every state in-person votes are counted before votes cast by mail. And that meant if he could convince a disproportionate number of his own supporters to avoid voting by mail, he’d very likely have an early lead on Election Night and could declare himself the victor, deeming later-counted votes illegitimate. This was the “red mirage” scenario some of us predicted, which is exactly what happened.

But so ingrained have Trump’s dubious claims about voting by mail become in the Republican imagination that even those who don’t run around touting conspiracy theories still fight to make voting harder. Mike Pence, for example, is generally though to represent the more sober and law-abiding wing of the MAGA movement. But the “Freedom Agenda” he recently released highlights the following “election integrity” proposals:

“Make in-person voting the primary method of voting, encouraged and supported by all levels of government and election administration. Mail-in voting should be rare and only for a very limited set of circumstances, with clear guidelines and procedures for requesting, receiving, casting, validating, and auditing mail-in ballots.

“Prohibit early in-person voting — when allowed at all — more than ten days before election day.”

Is that about ending fraud? Or is it just about treating any system that isn’t rigged for Republicans as rigged for Democrats? Perhaps the fairest thing to say is that an awful lot of Republicans want to have it both ways, telling the MAGA ultras that those people are breaking every election law in sight, while telling each other with a wink that what’s bad for the donkey is good for the elephant.