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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Editor’s Corner

March 11: Supreme Court Gives Democrats a Short-Term Win, But With an Ominous Kicker

The U.S. Supreme Court’s “shadow docket” of rulings on emergency petitions yielded a significant decision with mixed political implications, and I tried to unravel it at New York.

When North Carolina and Pennsylvania Republicans petitioned the U.S. Supreme Court to overturn state-court decisions against their attempted congressional gerrymanders, there were two issues at hand. The most immediate matter involved the gerrymanders themselves: Was there any federal constitutional bar to state courts interpreting state laws to smack down state legislative regulation of federal elections? There was also a longer-term issue casting a big shadow on the 2024 presidential elections: Do state legislatures have constitutional superpowers that may let them override state and even federal laws governing the designation of presidential electors, as Donald Trump’s campaign claimed in 2020 as part of its efforts to overturn that year’s results?

As Mark Joseph Stern noted at Slate when rulings came down on both petitions, the Pennsylvania GOP effort to reverse a state-court redistricting decision was a stretch: “The plaintiffs demanded at-large congressional districts for the first time since the 18th century because there was no backup map in place and no time for the legislature to draw one.” So the Supreme Court rejected the Pennsylvania petition without dissent or comment.

But in the North Carolina case, the Supreme Court said “no” to the GOP gambit to overturn new court-imposed maps and “maybe” to the broader claim of legislative superpowers. Six justices — John Roberts, Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett — rejected the North Carolina legislature’s petitions to overturn its state court’s redistricting ruling that could shift as many as four U.S. House seats toward Democrats as compared to the original legislative map. Three justices (Clarence Thomas, Samuel Alito, and Neil Gorsuch) dissented, with an opinion from Alito citing the famous “independent state legislature” doctrine, under which neither federal nor state courts can overrule legislative determinations of rulings affecting federal elections.

It’s not clear, however, that the Court’s majority rejected that doctrine. Kavanaugh’s concurring opinion explicitly reserved judgment on it, instead basing his rejection of the North Carolina petition on the close proximity of the 2022 elections. Chief Justice Roberts (who has expressed support for strong legislative election prerogatives in the past) and Barrett were silent.

So a short-term victory for the prerogatives of state courts interpreting state election laws (which in these two cases benefited Democrats) could later give way to a bigger defeat that puts legislatures in the driver’s seat in future election controversies — you know, like controversies over who actually won a presidential election. Trump’s frustrated 2020 effort to get Republican legislatures to overrule state-certified electoral-vote rewards might fare better in 2024 with more time to prepare the groundwork for a coup. And even if that doesn’t happen, legislatures — not courts, governors, or secretaries of State — could have the final word on election and voting procedures. As election-law expert Rick Hasen warned after the North Carolina order, we could see a “big, bad election law precedent potentially coming down the line.”

March 4: Rick Scott’s Extremist “Plan” for Republican Rule an Opportunity for Democrats

I’ve been following the antics of Florida Senator Rick Scott lately. This is my latest report at New York:

What does Florida senator Rick Scott want? Does he want to impress Donald Trump by displacing Mitch McConnell as Senate Republican leader? (He says he’s not interested in challenging McConnell, though he acknowledges that Trump personally asked him to do just that.) Maybe he’s positioning himself to run for president if Trump sits out the 2024 campaign? I surely don’t know. But something’s up. Scott has promulgated an “11-point plan” for what he thinks Republicans should do if they win back Congress this November. And now that McConnell has publicly rejected it, Scott has taken to the editorial pages of The Wall Street Journal to boast of his courage in an op-ed.

Scott claims the “plan” contains 128 “ideas,” which may be accurate if you consider owning the libs and cutting culture-war capers “ideas.” The “plan” is innovative insofar as it marries the very latest in apocalyptic hate-filled MAGA rhetoric with fiscal and social positions from the museum of conservative ideology circa 1964. But if emblazoned on Republican banners going into the midterms, Scott’s “ideas” would ensure an otherwise unlikely Democratic midterms victory (perhaps coincidentally, or perhaps not, the Floridian is not up for reelection this year). Senate Minority Leader Mitch McConnell knows that, which is why he dismissed Scott’s handiwork contemptuously last week.

“If we’re fortunate enough to have the majority next year, I’ll be the majority leader. I’ll decide in consultation with my members what to put on the floor,” McConnell told reporters. “Let me tell you what will not be on our agenda. We will not have as part of our agenda a bill that raises taxes on half the American people and sunsets Social Security and Medicare within five years. That will not be part of the Republican Senate majority agenda.”

McConnell was referring to just two of the more politically disastrous “ideas” Scott was advancing: sunsetting all federal laws every five years, and requiring federal income-tax payments from those whose tax liability has been eliminated by tax credits. He didn’t bother to mention some of the other howlers Scott endorsed, a few of which I described when the plan came out:

“Many of Scott’s specific proposals straddle the line between stupid and evil pretty effectively. He wants to impose a 12-year limit on all federal employment (with ‘exceptions’ for national-security purposes). Think about the immense cost and inefficiency of that kind of required turnover in the federal workforce, whose numbers, by the way, would be reduced by 25 percent in five years according to another pledge in the agenda. Guess that would somewhat mitigate the massive cost and disruptions associated with Scott’s demands to ‘move most Government agencies out of Washington and into the real world” and “sell offall non-essential government assets, buildings, and land.'” 

Without specifically referring to McConnell’s criticism, Scott took to the conservative ideological bulletin board of the Wall Street Journal editorial pages on Friday to simultaneously boast and whine that he had angered the Swamp People of Washington.

“In the real world beyond the Beltway, Republicans and independents demand bold action and a plan to save our nation,” Scott wrote. “They see no point in taking control of Congress if we are simply going to return to business as usual.”

Actually, in the real world beyond the Beltway, Scott’s “bold action and a plan” would lay waste to Republican campaigns as far as the eye can see. But he’s too busy posturing as a lonely patriot speaking truth to power to consider that. He continued:

“The militant left has seized control of the federal government, the news media, big tech, academia, Hollywood, the Democratic Party, most corporate boardrooms and even some of our top military leaders. The elites atop our nation’s institutions are working hard to redefine America and silence their opponents. They want to end the American experiment and replace it with a woke socialist utopia, and we are sitting around watching it happen.”

If conservatives are “sitting around watching it happen,” why can’t you go a millisecond without hearing the same tired litany about the all-powerful Woke Police and the March to Socialism from a thousand voices? The truth is that the more popular of Scott’s “ideas” have been repeatedly and redundantly and incessantly advanced by demagogues for eons, particularly such tired chestnuts as congressional term limits, a balanced budget amendment, and the refusal to honor the national debt, all of which he mentioned in his op-ed before backpedaling to a defense of his tax-increase proposals with the bait-and-switch tactic of pretending he’s only concerned about President Biden “paying people to not work.” (Though as the Tax Policy Center noted in 2019: “Nearly half of those paying no federal income tax are retirees living on Social Security benefits. Many others worked but made too little to pay federal income tax. Nonetheless, they still paid sales taxes, payroll taxes, and perhaps state income taxes.”)

There’s something especially unsavory about Scott posing as the working man’s only friend in Washington and as a tight-fisted steward of the public treasury. This is a guy whose entire political career has been bankrolled by the golden parachute he was given by Columbia-HCA to go away after the health-care company he led as CEO was hit with a $1.7 billion fine for Medicare fraud.

The most accurate line in Scott’s op-ed is this: “There will be many more attacks on me and this plan from careerists in Washington, who personally profit while ruining this country.” If he keeps it up, his critics will include delighted Democrats who would love to depict Scott’s toxic manifesto as party orthodoxy, and “careerist” Republicans who would like their careers to last beyond this November.

March 3: Biden Redeploys Unity Theme to Rally Support for Ukraine

Here was my quick take at New York on the international affairs segments of President Biden’s State of the Union Address:

As expected, President Joe Biden began his first official State of the Union Address by discussing the Russian aggression in Ukraine, devoting the first 13 minutes of his speech to the subject. Biden played it very straight. Despite the sub-strain of Republican admiration and even empathy for Vladimir Putin (exemplified by Biden’s predecessor), the president chose to depict Americans as completely united. “[Putin] thought he could divide us at home in this chamber and this nation and he thought he could divide us in Europe as well, but Putin was wrong,” Biden said. “We are ready. We are united and that is what we did. We stayed united.”

Biden projected calm resolution and even reassurance for nervous Americans, who have been hearing about possible nuclear war and absorbing frightful images of fighting and destruction in Ukraine. “I know news about what’s happening can seem alarming to all Americans. But I want you to know, we’re going to be okay. We’re going to be okay. When the history of this era is written, Putin’s war on Ukraine will have left Russia weaker and the rest of the world stronger.”

From a policy point of view, Biden was predictable enough, but he has positioned himself on very high ground in terms of public opinion, which favors strong action against Putin without troop deployments, and strong U.S.-led diplomacy based on red lines in Europe the Russians will not be alloyed to cross.

The contrast with the erratic, blustering Donald Trump was implicit rather than explicit. But Biden subtly undermined Republican claims that his administration’s weakness somehow drew Putin into aggression. Meanwhile the alliance Biden now leads — including even Switzerland — provides a clear alternative to Trump’s unilateralist hostility to NATO and lone-ranger approach to diplomacy.

His unity pitch also denied Republicans much of an opportunity to take issue with his remarks without looking churlish (as extremist congresswoman Lauren Boebert later did by shouting about casualties in Afghanistan when Biden was about to mention his late son, Beau). He was well into the domestic section of the speech before Republicans in the room could do anything other than dutifully, if reluctantly, standing and applauding his words. The impression that Joe Biden is a flailing president at the mercy of an emboldened opposition faded significantly during this address.

Will Biden’s remarks on Ukraine help him pivot to a more effective and popular presidency? It’s too early to tell for sure, but the signs are positive. His support has been flagging among Democrats lately. The stirring international section of the speech is bound to rally Democrats to his banner, and the rest of it was candy to them. For bipartisanship-craving swing voters, the unity pitch on Ukraine should resonate, and Biden cleverly laid out a “unity agenda” later on composed of four specific things the two parties might be able to do together. It was the sort of speech that played to his strengths as a president and as a politician. But he needs to keep the momentum up now that he has struck a new tone for his presidency.

February 25: Rick Scott’s Extremist Agenda for GOP a Ripe Target for Democrats

Some days you read something that leaps right off the page and sinks an evil fang into your arm. That happened to me with a document released by Florida U.S. Senator Rick Scott, and I wrote about it at New York:

In nearly every midterm election cycle in which U.S. House Republicans are in the minority, you will hear suggestions that the GOP adopt a new “Contract With America,” like the one that (not really, but according to lore and legend) led the party to its first conquest of the House many decades back in 1994. The idea is that everyone knows what Republicans are against, but nobody knows what they are for, since their contributions to the great legislative accomplishments of American history since about 1929 are limited.

This craving for a midterm GOP election agenda is typically strong in the House, partly because of the 1994 mythology and partly because House Republicans are, relatively speaking, pretty well united around a conservative ideology. You usually don’t hear much about this from Republican senators, as they are not quite so uniform ideologically and their long-time leader Mitch McConnell famously thinks obstruction of what Democrats are trying to do works just fine as a party message when the GOP is not in power.

In January, McConnell recommitted himself to election-year nihilism, as Business Insider reported:

“During a press conference on Wednesday, McConnell declined to offer any details about what Republicans would do in the event they recaptured both chambers of Congress in November.

“’That is a very good question,’ he told reporters. ‘And I’ll let you know when we take it back.’”

But now the senator who chairs the National Republican Senatorial Committee, Rick Scott of Florida, has released his own suggestion for an agenda, as Politico reports. “As a general rule, you know, probably this year’s election is going to be a lot about the Biden agenda. But I do believe we’re going to win,” Scott said. “We ought to have a plan and what we’re trying to get done when we get the majority.”

Scott’s “11 Point Plan to Rescue America” shows exactly why McConnell doesn’t like such exercises in hypotheticals. It is beyond extremist.

Sure, there is a lot of boilerplate conservative language in the document (the preamble harrumphs that “our government is eroding our work ethic by paying people not to work,” and one of the 11 points promises to end “the soft-on-crime days of coddling criminal behavior”). But there’s a weird “actually, science and scripture agree” tone running through the manifesto, which is quite an innovation. For example, here’s point 9:

“Men are men, women are women, and unborn babies are babies. We believe in science: Men and women are biologically different, ‘male and female He created them.’ Modern technology has confirmed that abortion takes a human life. Facts are facts, the earth is round, the sun is hot, there are two genders, and abortion stops a beating heart. To say otherwise is to deny science.”

Many of Scott’s specific proposals straddle the line between stupid and evil pretty effectively. He wants to impose a 12-year limit on all federal employment (with “exceptions” for national-security purposes). Think about the immense cost and inefficiency of that kind of required turnover in the federal workforce, whose numbers, by the way, would be reduced by 25 percent in five years according to another pledge in the agenda. Guess that would somewhat mitigate the massive cost and disruptions associated with Scott’s demands to “move most Government agencies out of Washington and into the real world” and “sell offall non-essential government assets, buildings, and land.” The IRS would receive an even more draconian 50 percent cut in funding and workforce, which might make it a bit tough to impose the new minimum income tax Scott wants to impose on the majority of Americans who now have no net tax liability.

But here’s the pledge that really takes the cake: “All federal legislation sunsets in 5 years. If a law is worth keeping, Congress can pass it again.” Presumably this would include the Social Security Act, the Medicare law, the Civil Rights Act, the Americans With Disabilities Act, and the immigration and criminal laws Scott is so determined to enforce with the maximum degree of viciousness. Any candidate running on that plank would be tarred and feathered.

I won’t go through the whole document, but you get the idea; whoever drafted this monstrosity must have been told to ask “What Would Trump Do?” on every topic and then ratchet up the right-wing anger and MAGA rhetoric considerably. Instead of just attacking affirmative action, the plan would ban collection of Census information by race or ethnic group. Criticizing excessive “wokeness” isn’t enough; Scott’s agenda promises to ban the use of “tax dollars for any diversity training.” And Trump gets his props in the plan, too: It proposes to “finish building the wall and name it after President Donald Trump.”

No wonder McConnell isn’t interested in a midterm election agenda, if this is what it means. There are undoubtedly multiple 2022 Republican Senate candidates who are trying to appeal to swing voters and would not particularly want to identify themselves with all this howling MAGA ferocity or explain why they want to destroy the federal government and some of its most popular programs.

Perhaps Democrats should disseminate Scott’s agenda themselves, beginning with Florida voters, who may be surprised to learn their junior Senator wants to let Social Security and Medicare lapse if they aren’t reauthorized every five years.

In all seriousness, it’s alarming that someone representing a large and reasonably competitive state would endorse a document that sounds like J.D. Vance wrote it in a panic after reading the latest primary polls in Ohio. Scott swears he’s not at this point running for president, which is a good thing, since his current thinking would be simply disqualifying.

February 19: Keep an Eye on 2022 Races for Secretary of State

In looking ahead to the 2022 midterm elections, there is one category of contests Democrats should pay close attention to, if only because the 45th president is already there, as I discussed at New York:

Even as Congress investigates Donald Trump’s attempted 2020 election coup and considers reforms to the Electoral Count Act of 1887 that aided his schemes for overturning the results, the former president is working hard to undermine future contests around the country. Beyond supporting gubernatorial candidates who have endorsed his election conspiracy theories, Trump is aggressively intervening in state contests for a less high-profile office: secretary of state. At stake is control of the election machinery in states where Trump failed to prevail in his false but vociferous claims that Joe Biden’s victory was illegitimate.

Trump has endorsed candidates in Arizona, Georgia, and Michigan, three very close 2020 states where he got no cooperation from secretaries of state in advancing his wild claims of election fraud. Arizona and Michigan have Democrats in that position, and in Georgia, Republican Brad Raffensperger famously defied Trump’s instructions to find some extra votes to overturn Biden’s win. The 45th president doesn’t want to face that sort of obstruction to his plans in 2024.

To carry out a purge of Raffensperger, Trump recruited Jody Hice, who gave up a safe U.S. House seat to launch a primary run. Raffensperger is also being opposed by 2018 primary rival David Belle Isle. A runoff is possible since Georgia requires a majority of votes to win in primary and general elections. But Hice is the fundraising leader and the overwhelming favorite to win the nomination in a primary that is being overshadowed by David Perdue’s Trump-sponsored effort to get rid of Republican Governor Brian Kemp (who seconded Raffensperger’s certification of Biden’s Georgia win). At this point, the biggest obstacle to a MAGA conquest of the Peach State’s election machinery is the likely Democratic nominee for secretary of state, highly regarded state legislator Bee Nguyen.

In Michigan, Trump’s candidate, community-college professor Kristina Karamo, has a more direct connection with the 2020 election coup effort, as CNN explains:

“Karamo rose to prominence in Michigan after the 2020 election when she alleged to have witnessed fraud as a poll challenger during the state’s count of absentee ballots. The month after the election, Karamo testified before a state Senate committee, signed onto the unsuccessful Supreme Court challenge to Biden’s win and appeared on Fox News conservative opinion shows to promote her allegations and falsely claim widespread fraud occurred in the state.”

If there were any doubt about her allegiances, Karamo dispelled them the day after January 6, 2021, declaiming: “I believe this is completely antifa posing as Trump supporters … I mean, anybody can buy a MAGA hat and put on T-shirt and buy a Trump flag.” She has opposed COVID-19 vaccines and the teaching of evolution and called public schools “government indoctrination camps.”

Karamo has an early fundraising advantage over her two Republican rivals, state legislator Beau LaFave and Township Clerk Cindy Berry. Perhaps most important, the nomination will be decided at an April 23 GOP convention rather than a primary, which should help the activist-fueled Karamo unless delegates decide she is unelectable. Incumbent Democrat Jocelyn Benson has been doing well in fundraising, but as with other battleground states, the expected nationwide Republican trend could be enough to tilt the balance, particularly in a down-ballot race in which party preferences will matter most.

In Arizona, incumbent Democrat Katie Hobbs is running for governor. The state is a hotbed of 2020 election revisionism, and three Republican candidates for secretary of state — Shawnna Bolick, Michelle Ugenti-Rita, and Mark Finchem, all state representatives — have been active in efforts to question the 2020 results and skew future elections in the GOP’s direction, as the Associated Press reported last fall:

“Bolick introduced legislation that would allow the Legislature in future presidential elections to disregard voters and choose its own electors to represent Arizona in the Electoral College …

“Ugenti-Rita has been one of the Arizona GOP’s most active proponents of legislation imposing new restrictions on voting, drawing stiff opposition from Democrats who say her measures would disenfranchise people of color.”

But Trump endorsed Finchem, who really does take the MAGA cake:

“Finchem brought Trump attorneys, including Rudy Giuliani, to Phoenix after the election to air bogus allegations that the former president’s narrow loss in Arizona was marred by fraud. Though he’s in the state House, he’s been a mainstay in conservative media promoting Senate Republicans’ partisan review of the 2020 vote count in Maricopa County, the state’s most populous.”

Finchem has been subpoenaed by the House Select Committee on the January 6 Attack for questions about his antics with Giuliani. He also attended Trump’s January 6 rally in Washington and was photographed near the Capitol, though he claims he never entered it.

Fontes, one of the two Democrats in the race, is a former Maricopa County elected official whom Finchem is blaming for trying to interfere with the phony “audit” of the 2020 election in that county.

Only one of the Republicans in the race, businessman Beau Lane, is not running on a MAGA vengeance kind of platform, so depending on general election dynamics, the odds of Trump getting an ally controlling the Arizona election machinery are pretty good.

While these are the three close 2020 states where Trump has already intervened in secretary of state races, others could follow. In Nevada, former state legislator Jim Marchant has proclaimed himself a leader in a national coalition of “America First” candidates for secretary of state, which includes the Hice, Karamo and Finchem. He leads the three other Republican candidates in fundraising. The vibrant GOP field was buttressed by the retirement of two-term incumbent Republican Barbara Cegavske, who was censured by the Republican State Central Committee for her failure to buy into Trump’s election-fraud allegations.

If some of Trump’s candidates do prevail in November, it might make him more confident about running in 2024. He’ll know that in the event of another close race, his acolytes will put their thumbs on the scales and make victory that much more likely.

February 17: Republicans Will Freak Out if SCOTUS Doesn’t Overturn Roe v. Wade

Thinking ahead to what may happen at the U.S. Supreme Court in June or July, I began thinking of a possible outcome no one is talking about. So I talked about it at New York:

All signs point to the reversal of Roe v. Wade by the U.S. Supreme Court when the decision in Dobbs v. Jackson Women’s Health Organization comes down, likely at the end of the current Supreme Court term. President Donald Trump had explicitly promised to deliver the reversal of Roe; when he managed to appoint three justices very carefully vetted by the conservative legal movement, it seemed it would only be a matter of time before the deed was done. Then in May, the Court accepted a case explicitly designed by the State of Mississippi as a frontal challenge to RoeOral arguments in December showed no wobbling at all among the five conservative justices presumed to be strongly inclined against legalized abortion, and at best pro forma equivocation by Chief Justice John Roberts. At the state level, there’s been frenetic legislative activity anticipating the end of a federal right to an abortion. It certainly seems that conservatism’s long-awaited judicial counterrevolution has arrived.

It’s not the first time Roe looked cooked, however. Thirty years ago, the Court was widely expected to gives states the green light to restrict abortions in Planned Parenthood v. Casey. There had even been a preliminary vote in favor of an opinion from Chief Justice William Rehnquist (one of the original dissenters in Roe) that would have done so. But Justice Anthony Kennedy changed his mind and joined “centrist” Justices Sandra Day O’Connor and David Souter, resulting in a decision that allowed certain state-imposed abortion limitations while actually reaffirming the constitutional protection of pre-viability abortions.

To be clear, it’s unlikely that this “betrayal” of the anti-abortion cause will happen again. For one thing, with the occasional exception of Roberts, there aren’t any “centrists” left among the six current justices appointed by Republican presidents. For another, if the conservatives on the Court were inclined to move slowly and incrementally in eroding reproductive rights, they could have surely arranged to accept a case involving state restrictions that fell short of an outright ban like Mississippi’s, and that didn’t raise expectations among anti-abortion activists that would soon be dashed.

But what would happen if all the Court watchers and legal experts are wrong?

Since the idea of the Court flatly striking down the Mississippi law is hard even to imagine, let’s hypothesize a decision that upholds the state’s ban on abortions after 15 weeks specifically, under some revision of either Roe’s “viability” standard or Casey’s “undue burden” test, rather than a decision that generally affirms state prerogatives to regulate abortion, as in the days before Roe. If that were to happen, the new lines the decision draws would determine how many existing or potential state laws restricting abortion might survive judicial scrutiny. The federal constitutional right to choose would be weakened, but not abolished.

Some observers might treat such an outcome as a sort of deferred reckoning, which was a common reaction to Casey, particularly among pro-choice folk relieved that the viability standard had survived but worried about the approved state restrictions. Obviously, if the Court approves Mississippi’s ban on all abortions after 15 weeks of pregnancy, with no exceptions for rape or incest, that would be a rather large step back from Roe and Casey; it could also lead to additional erosions of reproductive rights in future cases. But given the expectation of a more sweeping decision, pro-choice advocates might at least privately be pleased that the vast majority of abortions occurring today would still be legal and (at least for the moment) constitutionally protected.

For exactly the same reasons, anti-abortion advocates and their Republican allies might be deeply disappointed and even angry if Roe survives again, even in an attenuated form. The justices’ majority and concurring opinions would be examined carefully to identify culprits and backsliders. If (as would be likely) Roberts were one of the temporizers, his past betrayals of conservatism (particularly the Obamacare decisions) would be hashed over again with bad intent. If Kavanaugh joined him, we’d be treated to psychobabble about his need to prove his feminist critics wrong.

But if Amy Coney Barrett failed to answer the call to gut Roe on her first opportunity to do so, the effect on those who so avidly supported her nomination and confirmation could be truly traumatic. In a recent examination of Barrett’s “originalist” judicial philosophy, Margaret Talbot suggested that those who view the courts simply as instruments for their right-wing religious and political views might revolt against the entire conservative legal movement if she lets them down:

“Lately, some right-wing Republicans have, like Josh Hawley, been making it known that they don’t see much use for the originalists on the Court if they don’t deliver Roe a fatal blow. Rachel Bovard, a columnist for the Web site the Federalist, recently wrote, ‘If the outcome of Dobbs is indeed a hedge that splits the Court’s conservatives — or, to put it more bluntly, if the conservative legal movement has failed to produce Supreme Court Justices who are comfortable overturning two outrageously constitutionally defective rulings on abortion — we will be left to justifiably wonder what the whole project has been for.’”

Such a disappointment would not reflect well on Donald Trump’s ability to produce what conservative Christians want, either. And that reliability is a key component of his past, present, and presumably future position as leader of the Republican Party and a MAGA movement devoted to restoring an orderly patriarchal society in which the right to choose abortion is just another “woke” nostrum to be mocked and repudiated.

The stakes are undoubtedly high in Dobbs, and not just on the central question of abortion rights. While the Court is expected to deliver a decision that deepens the divide between blue and red America, there’s a chance it could produce something more complicated, like a civil war on the right.

February 11: Republican Governors Could Be Central to Trump’s Next Attempted Coup

Following as I do the sometimes tedious but always essential discussions of the Electoral Count Act of 1887, I feel constrained to sound the alarm about the dangers of fighting the last (2020) war, and did so at New York:

So far the discussion around this year’s midterm elections has mostly focused on House and Senate races, which could break up the Democrats’ governing trifecta in Washington. There’s been far less focus on gubernatorial races, which only tend to matter to people in the states involved. But the big batch of competitive races for governor in 2022 could ultimately have a huge impact on the entire nation. Governors play a central but overlooked role in the certification of presidential elections, so the election of Republican governors in battleground states could increase the odds of a successful 2024 election coup by Donald Trump, if efforts to reform our election laws ignore the possibility of rogue governors.

Under the Electoral Count Act of 1887, electors certified by governors are considered valid unless overturned by both chambers of Congress. In four of the states whose results were contested by Trump in 2020 (Michigan, Nevada, Pennsylvania, and Wisconsin) Democratic governors were in place to prevent the certification of fake Trump electors. In two others (Arizona and Georgia), Republican governors refused to play Election Coup ball.

But MAGA bravos have a significant chance of winning Republican gubernatorial nominations in the Democratic-governed states mentioned above, and midterm dynamics give the GOP a better-than-average chance (at this early point) of flipping them all. In Arizona, Doug Ducey is term-limited, and the two top Republicans in the race to succeed him are supporters of the bogus 2020 election audit. And in Georgia, Trump is sponsoring a serious primary challenge to Brian Kemp by former U.S. senator David Perdue, who is campaigning on the theme that Kemp “let us down” by certifying Biden’s 2020 win in that state.

Yes, there is bipartisan interest in Congress right now in an effort to repair the hazy and dangerous provisions of the Electoral Count Act. But because the threat to democracy in 2020 came from Trump’s efforts to encourage state legislators and the vice-president to overturn the results, the potential threat of rogue governors may not get the attention it deserves.

Election expert Matthew Seligman has been warning that the tendency to fight the last war (or coup attempt) could lead to a scenario where a governor and/or some other certifying state official could send in a false certificate on behalf of the popular-vote loser and then count on a single congressional chamber to uphold it, as Business Insider’s Grace Panetta points out:

“A far more urgent and straightforward threat though, according to Seligman, is something he calls the Swing State’s Governor’s Gambit. It would only require a few partisan officials who control the state government in one swing state to submit an illegitimate slate of electors for their party’s losing presidential candidate — and their party also controlling one chamber of Congress and counting it.

“’As a result,’ Seligman wrote in a recent report, ‘a hyperpartisan House of Representatives can collaborate with a swing state’s governor to steal that state’s electoral votes, and under the Act’s existing structure there is nothing the opposing party could do to stop them.’”

Guess who is favored to control the House after the 2022 midterms? A “hyperpartisan” Republican conference led by Trump ally Kevin McCarthy. Usually control of the House doesn’t flip in presidential elections, so if McCarthy is Speaker going into 2024 he would probably emerge with the gavel still in his hand. And the 45th president is already trying to sabotage Republican support for doing anything to fix the Electoral Count Act.

So even if you are a progressive comfortably ensconced in a deep-blue state unlikely to go MAGA in 2022, the midterm gubernatorial elections in highly competitive states are well worth watching. Another January 6 nightmare with a different outcome in Congress could be in the offing.


February 9: Another Blow to Voting Rights and Gerrymandering Reform From SCOTUS

The conservative majority of the U.S. Supreme Court outdid itself this week, and not in a good way, as I explained at New York:

In an order that will have significant short-term and long-term effects on voting rights, redistricting and racial-gerrymandering laws, five conservative U.S. Supreme Court justices set aside a lower-court ruling that would have forced Alabama to draw a congressional map for the next decade that better reflects the state’s demographics.

The facts of the case are clear and uncontested: Last year, the Republican-controlled Alabama legislature drew the state’s new congressional map to provide six majority-white (and sure to be Republican) districts and one majority-Black (and sure to be Democratic) district even though 27 percent of Alabama’s population is Black and concentrated in a way that would easily accommodate a second majority-Black district. On January 24, a three-judge federal district court panel (including two judges appointed by Donald Trump) unanimously held that the map violated Section 2 of the Voting Rights Act of 1965 based on existing Supreme Court precedents, and it ordered the legislature to substitute one of the many available maps with two majority-Black districts for its tainted plan.

But now the Supreme Court has granted Alabama’s “emergency” appeal to reimpose its original map. As is generally the case in such “shadow docket” decisions (rulings on time-sensitive petitions when the Court is not in session or when circumstances won’t permit full briefings, oral arguments, and deliberations), the rationale for the action of the majority isn’t clear. Three conservative justices (Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett) silently concurred, while two (Brett Kavanaugh joined by Samuel Alito) filed a concurring opinion heavily emphasizing the so-called Purcell doctrine, which discourages federal-court interventions in such cases too close to elections. The Court’s three liberal justices (Stephen Breyer, Sonia Sotomayor, and Elena Kagan) joined in a dissent written by Kagan arguing that the district-court decision gave the legislature plenty of time to comply before Alabama’s May primary date and accusing the majority of covertly reversing Voting Rights Act precedents to let Alabama (and probably other southern states) get away with racial gerrymandering:

“Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument. Here, the District Court applied established legal principles to an extensive evidentiary record. Its reasoning was careful — indeed, exhaustive — and justified in every respect. To reverse that decision requires upsetting the way Section 2 plaintiffs have for decades — and in line with our caselaw — proved vote-dilution claims.”

But the most striking opinion published by the Court was a separate dissent filed by Chief Justice John Roberts, the author of landmark decisions gutting a key enforcement provision of the Voting Right Act (Shelby County v. Holder in 2013) and restricting federal-court jurisdiction over partisan gerrymandering (Ruccho v. Common Cause and Lamone v. Benisek in 2019). You’d think he might be eager to further erode Voting Rights Act enforcement in redistricting cases, and you might be right. But he concluded that such a new departure in the law would require a full review with oral arguments since “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.” Thus, he said, the 2022 elections should proceed under the requirement that the Alabama legislature create a second majority-Black district, a decision that could in theory be reversed for subsequent elections.

Robert’s dissent makes the brazenness of the majority ruling pretty plain notwithstanding Kavanaugh’s rationalization about the lower court’s tardiness (caused, of course, by the Alabama legislature itself). It most obviously cost Black voters in Alabama (and, for that matter, Democrats) a majority-Black House seat in 2022 — and probably for the rest of the decade — and short-circuited what many experts anticipated would be court orders adding majority-Black House seats in Louisiana, South Carolina and possibly even Georgia.

From a longer-term perspective, Roberts’s concurrence shows he is probably ready to join the majority in this case in further restricting grounds for the application of the Voting Rights Act to redistricting decisions once this or a similar case comes back to the Court for full consideration. And as election law expert Rick Hasen notes, the Supreme Court continues to expand the shadow docket by adopting Kavanaugh’s expansive interpretation of the Purcell doctrine “on steroids” to “shut down important election law changes” by lower federal courts. It’s all pretty bad news for voting rights and for federal-court review of elections at a time when clarity and fairness are badly needed.

February 5: California Progressives Again Frustrated By Demise of Single-Payer Legislation

It didn’t get much national attention, but a dog that did not bark in California was significant, as I explained at New York:

The relatively disappointing legislative results the Democratic trifecta in Washington has produced is attributable in no small part to the obstructive power of the Senate filibuster in a chamber split 50-50 between the two parties. But sometimes a lack of partisan power cannot explain progressive policy failures. Few states are more reliably Democratic than California. Democrats hold solid vetoproof supermajorities in both Houses of the California legislature, and the latest decennial redistricting process (conducted by an independent commission) shouldn’t change that any time soon. And vetoes are rarely necessary, since the governor has been a Democrat since Arnold Schwarzenegger left office in 2011. Any thought that a post-2020 backlash against Democratic rule might upset the Golden State party status quo died with the decisive September 2021 defeat of a ballot initiative aimed at removing Governor Gavin Newsom from office.

Yet California lawmakers have chronically failed to fulfill pledges to achieve the most cherished policy goal of the state’s progressive activists: creating a state-financed universal health-care system. It’s happened again this year with the demise of a single-payer bill without so much as a vote in the lower chamber of the legislature, the California Assembly.

Single-payer health care is part of the California Democratic State Platform, and the state party’s Progressive Caucus has threatened to withhold endorsements from legislators who didn’t support it. It was backed by Newsom when he was elected in 2018, and by Assembly Speaker Anthony Rendon this year. Like the measure that passed the California Senate in 2017 but died in the Assembly, the current bill, AB 1400, is all dessert and no green beans: it prospectively bans private health insurance and sets up a public single-payer system but puts off enactment the tax revenues (somewhere between $314 billion and $390 billion annually, according to legislative analysts) to pay for the new benefits.

Yet AB 1400’s principal sponsor, San Jose legislator Ash Kalra, yanked the bill earlier this week, arguing that he was far short of the votes needed to enact it and didn’t want to put his colleagues on the spot with a recorded vote.

Newsom didn’t comment on the situation. Rendon pushed the blame onto Kalra. Progressives organizations — most notably the California Nurses Association, which has made enactment of single-payer health care its major priority — were very unhappy with the outcome, the latest in a number of major disappointments on this subject in California and elsewhere. The CNA blasted Kalra by name in a statement, saying, “Nurses are especially outraged that Kalra chose to just give up on patients across the state.”

So why does this keep happening? Progressives who consider single-payer a no-brainer substantively point to the enormous corporate lobbying apparatus opposing this or similar universal-health-care legislation, as CalMatters notes:

“The influential California Chamber of Commerce, which represents business interests in the state, labeled AB 1400 a ‘job killer’ shortly after it was reintroduced in January, indicating it would be a top priority to defeat. Its lobbying campaign — joined by dozens of insurers, industry groups and the associations representing doctors and hospitals — included social media advertisements and a letter to members denouncing the “crippling tax increases” that would be needed to pay for the system.”

But it’s this last issue — taxes — that probably best explains the reluctance of Democratic legislators to put their money where their mouths are on single-payer. Some argue passing a bill like AB 1400 without including the taxes necessary to implement it is simply irresponsible. Others fear a tax revolt that could revive the moribund California Republican Party. That is particularly true on the brink of a midterm election in which the GOP may have the wind at its back across the nation, possibly extending all the way to the West Coast.

In any event, Democratic legislators who did not publicly express support for the legislation will brace themselves for possible primary challenges, while Newsom, who is up for reelection next year, will need to make clearer what he will and won’t support and how hard he’ll fight for health-care reform when it comes back up, as it most definitely will. While remaining mostly silent about AB 1400, Newsom has given a lot of attention to his own proposals to expand the state’s Medicaid program to include undocumented immigrants and others excluded from the current health-care system.

The whole brouhaha helps explain why single-payer health care is not seriously being discussed in Washington, and why progressives with a clear and fixed vision of the kind of society Democrats ought to support are so often disappointed.

February 2: Why Supreme Court Nominations Have Become “Political”

Anyone who has been around for a while probably understands how and why Supreme Court confirmations have become partisan, like everything else. But I provided a quick history lesson at New York:

Beneath the hilariously insincere conservative criticism of President Biden for “politicizing” the Supreme Court selection process by pledging to name the Court’s first Black woman is a very different reality: Both political parties fear a “rogue” justice who will align herself against the “team” responsible for her nomination. This concern is much stronger among Republicans, who feel a number of GOP-appointed jurists betrayed them in the past. These grievances were a principal reason for conservatives’ appreciation of Donald Trump’s tightly controlled, highly transactional system for choosing Supreme Court members.

The biggest betrayal of all came on June 29, 1992, when a Republican Party that had already come under the control of the anti-abortion movement was shocked at the decision in Planned Parenthood v. Casey. Expected to deliver the long-awaited overturning of Roe v. Wade, the Court instead gave the central holding of Roe a lease on another three decades of life, with all five justices who upheld abortion rights having been appointed by Republican presidents. One of those five, Reagan appointee Anthony Kennedy, frustrated Republicans off and on for another quarter-century and earned the eternal enmity of cultural conservatives with authorship of the majority opinion in Obergefell v. Hodges, creating a federally established right to same-sex marriage. The biggest favor Kennedy did for his party was to retire when it controlled the White House, allowing Trump to nominate former Kennedy clerk Brett Kavanaugh, a safely ideological successor.

It’s telling that of the five Judases who handed down Casey, two (Justices Kennedy and Sandra Day O’Connor) were appointed by Mr. Conservative himself, Ronald Reagan, while another (David Souter) was appointed by Reagan’s successor, George H.W. Bush. A fourth apostate (John Paul Stevens) was appointed by Gerald Ford, and a fifth (Harry Blackmun) was appointed by Richard Nixon.

Blackmun wrote the main opinion in Roe v. Wade, but that’s not even the most striking example of a Republican-appointed justice who went rogue. That would be Chief Justice Earl Warren, who presided over the Court as it handed down multiple famous decisions promoting civil rights and civil liberties. Conservatives despised and denounced Warren’s jurisprudence for decades. Yet this appointee of Republican president Dwight D. Eisenhower had been a highly partisan Republican politician before becoming chief justice. He was Thomas Dewey’s running mate in 1948, and before being elected governor of California in 1942, he was chairman of the state GOP and a member of the anti-Asian nativist group Native Sons of the Golden West. Most famously, as governor during World War II, Warren championed the internment of around 100,000 Japanese Americans, the majority of them U.S. citizens. He was not a very likely prospect to become the most famously progressive chief justice in the Court’s history. That’s how it goes with lifetime appointments to the federal bench: Teamwork cannot be taken for granted. Another of Ike’s appointees to the Court, William Brennan, built a reputation even more liberal than Warren’s.

Thanks to the Republican control of the presidency for 44 of the 77 years since World War II and some vagaries of luck (Democrat Jimmy Carter had no Supreme Court openings to fill, whereas Donald Trump had three), Democrats have had fewer opportunities to be “betrayed” by Court appointees. Truman appointee Sherman Minton, another former politician (he had been a Democratic senator from Indiana) became a leading advocate of judicial restraint. JFK’s sole appointee, Byron “Whizzer” White, was one of the original dissenters in Roe v. Wade (and was still around to dissent in Casey). In 2008, Democratic presidential aspirant Bill Richardson cited White as his favorite justice, and it damaged Richardson’s campaign significantly.

In any event, the partisan anger spurred by all these apostates is pretty good evidence that the idea of a “politicized” process for selecting Supreme Court justices is neither new or newly unpopular. The long-term trend is in favor of more careful vetting to ensure “betrayals” don’t happen, with Republicans insisting on conformity as much as Democrats. No “team” likes a player who runs the wrong way.