Nothing Else Like It

In one sense, what we're going through in America is highly reminiscent of other countries which have recently gone through authoritarian regresses. Hungary, India, Israel, the Philippines, and Brazil, to name a few, all have seen liberal democratic institutions decay in the face of far-right populist demagogues.

I've found this weirdly comforting -- not because what's happened in those countries hasn't been awful, but because somehow knowing this sort of thing doesn't stand outside history is reassuring. It's not the end of time, it is a thing happening in time.

Yet even this reassurance is, I fear, somewhat misleading. Because while it may be true that Hungary, India, Israel, etc. have gone through this before; and even true that (some of) these countries have or will come out the other side, what we have not ever seen is a global hegemon going through this sort of regression. Without understating the havoc that a recklessly authoritarian India or Israel can wreak on a local or even regional scale, they're unlikely to take down the entire international order with them. An out-of-control America could tank the global economy, could cause anarchic chaos to break out all over the planet, could set off a literal World War III. There's literally been nothing like it.

And domestically, with the possible exception of the Redemption-era South, we haven't in American history seen as rapid an authoritarian rollback of democratic equality and rule of law as what the Trump administration has inaugurated in its first week(!) in office. Every aspect of our constitutional order feels like it under attack, all at once, and nobody really knows how to respond.

This uncertainty, unfortunately, is sometimes paired with a strangely confident certainty that purports to know exactly how to respond -- which is to say, "something not what we're doing now."

At one level, I understand where this frustration is coming from -- "what we're doing now" can't be the right response, because it's not stopping things that need to be stopped. At another level, it really does elide the brute reality that nobody knows exactly what the most effective response is to Trump's blitzkrieg fascism. For example, I saw a report that House Minority Leader Hakeem Jeffries (D-NY) was taking the stance that Democrats should ignore Trump's "flood the zone" tactics and focus, laser-like, on the economic damage he was wreaking. I also saw many panning this tactic as leaving many critical issues unaddressed while missing opportunities to make hay out of massively unpopular oversteps that weren't clearly economic. I certainly see the weight of this critique, but I also understand the other side -- that trying to cover everything will inevitably result in an unfocused, chaotic response that lacks a clear narrative and just reinforces a "Dems in disarray" sensibility. How do I resolve that tension? I'm not sure -- and to be blunt, I think most people are unsure too.

My best proposal is this: the important thing is to keep fighting. The where or when or how is far less important than that it happens at all. This means I do agree wholeheartedly with the stance that Democrats' job is to be the opposition party and not give any free inches to Republican policies. But beyond that, I'm not sure the best use of our energy is engaging in internal sniping regarding who is prioritizing what messaging or narrative point best.

Is that a possible line to hold? I don't know. Is it even the best line to hold? I don't know! We're in new territory here. There's been nothing else like it.

Another, (Mostly) Unrelated Way Life Sucks Now

A few days ago, I was chatting with my mom (who's retired down in Florida). After our usual pleasantries about the doomed world we live in, she told me about a weird thing that happened at her house while she was out (she has a Ring doorbell and so saw the recording).

Basically, two people, a woman and a man, came up and knocked on her door for awhile. Since nobody was home, obviously no one answered (though my mom said that if she was home alone, she'd be disinclined to talk to strangers banging on her door anyway). Eventually, the woman left a card and then they drove off. The card identified the woman as a U.S. Marshal, with a name, telephone, and email; on the back she wrote a note asking to please contact her ASAP about a "subpoena".

My mom thought, and I agreed, that this seemed pretty suspicious. My parents are law-abiding folk and aren't otherwise involved in any litigation; mom couldn't think of any reason that federal marshals would be delivering a subpoena. The note wasn't addressed to anyone in particular (it didn't have either of my parents' names, for instance). She was already on edge from the election, and living in DeSantis-land added to her fears that there might be some sort of political thuggery or intimidation at work. I googled the name on the card, which didn't reveal anything; on the other hand the phone number did match that of the local United States Courthouse. I asked my mom if she and dad had a lawyer and stressed that they should not let anyone pressure them into signing or paying or doing anything. Fortunately, my dad is a retired attorney and we know many people in the legal world, so they had plenty of resources to figure out if things were legitimate or not.

Anyway, the next day rolls around and it turns out that the card and the note and everything ... was entirely legitimate. An old case of my dad's from before he retired, that he thought had long fizzled out, had burbled back to life without warning (the reasons why this resulted in a federal subpoena are frankly too stupid to go into, but that's not my story to tell anyway). It'll be a quick bit of work for an old client in a few weeks, but everything was basically above board. No one was trying to steal their kidneys after all.

I told this story to a colleague of mine at work, and he relayed a similar situation he had been in a few months ago: he got a call from a man identifying himself as a police officer who claimed to have found a check under my colleague's name. The number from the call was a personal cell number; it was not that of the local police department. So my colleague called the department directly to ask if the man who called was really one of theirs, and the answer was ... yes. Apparently, some of his checks had been stolen out of the mail and recovered, and they really were calling to inform him of the situation. Again, everything was exactly as it was stated to be. No scam here.

In both cases, growing experience with spam and scams and hoaxes made people (quite reasonably) suspicious of genuine, legitimate interactions with authority figures. And hearing the outcome of these two stories, I thought back on something that happened to me a few weeks earlier, when I got a call from a man identifying himself as a county sheriff who asked me "why I missed my grand jury summons." I hadn't received any such summons and this is a scam I'm familiar with, so I told him something along the lines of "I'm pretty sure you're a scammer, otherwise contact my attorney" and hung up on him. Of course now, since the above two cases both turned out to be legitimate, I'm wondering if I just told an actual county sheriff to go fuck himself.

I haven't heard anything about this since, and again the "you missed your jury duty" bit is a common scam, so I'm pretty sure my instincts were right the first time. But again, it goes to a broader toxification in our informational ecosystem -- all these scams and hoaxes mean nobody knows who to trust at all: we risk falling for the fake, and we also risk ignoring what's real, and it's increasingly difficult to know how to ameliorate either of those risks. It is an exhausting and anxiety-laden way to live life, and it sucks.

And while I said this this particular suck is mostly unrelated to the main way life is terrible right now, there is a connection. Authoritarianism, Arendt teaches us, doesn't demand that people believe fictions. It flourishes best when people either do not care about, or lose confidence in their ability to distinguish, fact and fiction. 

One way this occurs is by a faux-worldly cynicism, where one congratulates oneself for recognizing that all politicians lie, are scoundrels, are in the bag for "the elites", etc., and so there are no differences worth sussing out. But another mechanism, that can afflict the more diligent and virtuous, is where institutions of authority and trust become so degraded or jumbled that it just becomes impossible to sort anything out. This is the risk of, for example, deep fakes -- one can entirely recognize that not everybody is lying while being helplessly unable to distinguish between an actual video of a political event and a manipulated or concocted one. 

Trusted institutions with reputations for vetting can help alleviate this problem. But as public confidence in those institutions fade -- or they simply become easier to spoof -- we're left with an endless sea of slop content, none of which can even in concept contain any markers of reliability or trustworthiness. And one thing we're seeing in 2024 is that this sort of toxified informational ecosystem is apocalyptically dangerous to a functioning democracy. It is not an accident that high on Trump's target list is leveraging government power to sabotage any effort -- public or private -- at combatting "misinformation". A world in which nobody can trust anything, where lies and truth become a single indistinguishable mass, is a world favorable to his brand of fascism.

One thing that I think "acab" sort of misses is that, even if it is correct to say things like "never trust the police", it is in fact bad to not be able to trust the police or other authority figures. Wondering if "the police" calling your house are really just Nigerian scammers, and wondering if "the police" calling your house are really just looking to harass you for lining up against the dominant governing faction, are two sides of the same coin. If I get subpoenaed, I want to know that without dialing up my entire legal network to figure out if it's a hoax! If I did accidentally miss a jury summons, I want someone to tell me so I can work things out!  More alarmingly, if an authority figure knocks on my door and says "there's a dangerous fugitive on the loose, have you seen anything," I want to be able to help out without wondering if the fugitive is a woman who had an abortion or an immigrant avoiding the deportation camps. When that trust fractures, it is a terrible way to live. The atmosphere of mistrust and suspicion that it cultivates, even -- maybe especially -- when it is well-warranted, is toxic to a free society. But in so many ways, this is the direction we're moving.

We Failed

We failed.

Part of being in a democratic society is that we have a collective responsibility towards our fellows, and to the greater health of our democracy. "A republic, if you can keep it." And we failed. We encountered the most basic test of democracy imaginable since the Civil War -- how to respond to an outright insurrectionist force in the center of our political life -- and we failed.

The "we" is both broad and narrow -- it includes the American citizenry as a a whole, but also the more particular institutions that had more specified tasks centered around militating against and responding to the rise of fascism in this country. The media. The judiciary. The legal community. Law enforcement.  Some of these institutions I'm a part of, and so I include myself in all levels of the "we" who failed. But I'm not interested in assigning blame, I am just stating fact: We specifically failed, and then we, generally, failed.

There are so many who were failed yesterday, and I am wracked with guilt that we failed them. It's no good to say it is not my fault -- I know it mostly isn't -- but collective responsibility is the burden we share as members of a democratic polity, and that means that this failure lands on me as much as everyone. Part of the politics that won yesterday were that of "I got mine, so fuck you", and at the very least I refuse to indulge in that abandonment of responsibility. We should feel bad about those we've abandoned, left vulnerable, marginalized, and excluded. We did a bad thing.

Not that any of us should have any confidence as to which side of the line we'll find ourselves. The cruelties that are coming may not be distributed evenly, but they also won't track perfectly predictable patterns either. Certainly, I have little optimism that "Jewish professor who works on antisemitism" is going to be a fun social position to occupy for the next four years. Maybe I'll skate by unfazed, or maybe a hate campaign will drive me out of my job. Maybe my kid will enjoy his local preschool, or maybe my kid will get sick from avoidable illness because he wasn't allowed to get a vaccination. Who knows! Anything can happen, to any of us. And if it does, we can be absolutely assured that the Trump administration and the coalition that brought him to power will not care. They will not care if you thought yourself one of them, and they certainly won't care if you thought yourself one of us.

We will soon see (it's no doubt already starting) various stories and narratives explaining why exactly we failed, and who exactly is responsible for the failings. I mostly don't want to partake at this time (90% of them will be variations on "if only we did the things I was already urging us to do!"), but if I were to explain this outcome, it is the story reflected in this post: people were just tired of fighting against fascism, and decided to give in. They hope that if they just align themselves with the authoritarianism, they'll be left alone. They can live a boring, normal life under authoritarian rule. Even among the populations that seem most obviously targeted, there's a tendency to say "he ain't talkin' about me!" Why would he? I'm not a criminal, I'm not a threat, I'm just here living my life. The real risk is poking my head up, so better to keep it down and comply in advance.

That's part of the story, but I do want to echo the point made by others: that at root many, many Americans wanted this. They want the cruelty, they want the viciousness, they want the lawlessness, they want the insurrectionism. It may be (likely is) the product of a sort of naivete -- surely the leopards won't eat my face -- but we should take it seriously: the hurt and pain that is about to rain down on so many Americans (and so many others around the world) is desired. 

This is a self-imposed puzzle the media was never able to resolve: it insisted that we had to understand Trump voters, but then refused to actually understand them because doing so felt impolite, instead concocting a series of "respectable" stories about them ("economic anxiety") so as to avoid reckoning with what they actually want. The complaints of "media bias" against Trump voters is laughable: I'm never more sympathetic to Trumpers than when I'm reading about them in the New York Times, where all their grievances and hostility and hate are laundered through gentle cycles and explained as a rough-edged byproduct of the most understandable human needs and frailties. When that filter is removed and I encounter Trump backers directly, it is immediately obvious that this story of them somehow being coerced into hatred is nonsense. They want detention camps, they want to obliterate public health programs, they want schools to be ideological indoctrination centers, they want to be fed lurid conspiracies about the Jews and the Blacks and the Immigrants and the Communists, they want their charismatic leaders to break the law with impunity and they want their enemies to be harassed and thrown outside the protections of the constitutional order.  There isn't some alchemical process where "economic anxiety" explains and apologizes for this. This is what they want, and we should have enough respect for them and us to describe it honestly.

And it will be resilient -- far more resilient than I think even now we can comprehend.  They will laugh as the leopard eats their neighbor's face, and then some number of them will be stunned, not just that the leopard turns on them, but that the people they were laughing with a moment early keep on laughing as it eats their face. There is no actual solidarity here, just an enjoyment of the cruelty and enjoyment of finding oneself on the right side of the cruelty, and there is perverse power in that -- your buddy next to you might get betrayed in an instant and it won't move the needle an inch. They will keep laughing even when their fellows are being hurt, so certainly they will keep laughing straight through our marches and protests and rage. It is so, so hard to dislodge this cancer once it gets its claws into power, and it is so much worse when it obtains power the second time. From Hugo Chavez to Viktor Orban, "the second time is worse."

Because this time, there will be no guardrails. This time, the institutions are already in place to smash the dissidents. This time, losing is not an option. And this time, the Republican Party has already reeducated itself to comply utterly and without hesitation. I doubt Susan Collins will even bother to furrow her brow. There is not a single Republican at any elected office anywhere in America I trust to impose any check or limit on any Trump policy that does not personally affect them -- and I mean that with zero limitations. No matter how extreme, no matter how norm- or rule-breaking, no matter how cataclysmic, the Republican Party is poised to march in jack-booted lockstep. And again, in those rare moments where one single Republican does have a personal stake and a personal connection that prompts them to idiosyncratically step out, they will find themselves utterly and entirely alone. Nobody will join them, just as they will not join the next colleague down the row when that one finds their one issue they wish to speak out on. Every element of the governmental and political apparatus will have one and only one objective: to promote the interests of the authoritarian. That's what we are facing down.

It hurts to fail, when the price of failure is so steep. It hurts to have a vision of a better future, and witness it disintegrate with no clear plan of how to win it back. It hurts to care this deeply about the future of our democracy, and watch everything unravel. It hurts so much, I can almost sympathize with deciding ... not to care -- to keep one's head down, and just acquiesce to what is happening, in the hope of being left alone in contented apathy and ignorance.

But to be a responsible citizen means to resist that impulse. And on this day of catastrophic failure, that is one failure I will not accept from myself.

Resilient Fascism

I still haven't decided if I'm going to do my traditional liveblog of the election. It may just be too stressful. Plus, I have to teach an early-morning class tomorrow, and it would be bad if I stayed up all night tracking election returns (lol, like I have a choice).

While we're waiting for results to come in, I want to briefly comment on news abroad -- namely, that Israeli Prime Minister Bibi Netanyahu has fired his Defense Minister, Yoav Gallant. It is yet another incident of capricious chaos meant to appease Netanyahu's furthest-right base, and is being greeted with yet another round of mass protests throughout Israel. And I can't help but think it is a premonition of what America will be like if Trump wins another term.

When I look at what's happening over there, what stands out to me is the resilience of the Israeli government -- and not in a good way. What's been striking about the current Israeli government is not just the blundering into crisis after crisis that has typified its time in office, but how it has managed to survive and endure them while barely budging. It has survived near-constant protests, brutally sagging popularity, a seemingly endless (now two-front!) war, complete abandonment of hostages, regular evidence of widespread corruption, and increasing international isolation, and has through all of it only deepened its commitment to the furthest-right fringes of its governing coalition. 

It's not that it's been able to accomplish all its heart's desires (the judicial coup continues to tread water), but it has hunkered itself down and proven nearly impossible to dislodge. Why isn't widespread public rage and scandal enough to bring down the government? Simple: because the people in government know that the minute they dismount the tiger they've been riding, they'll get devoured. So they bound about from desperate move to desperate move, breaking this rule, smashing that norm, all in complete defiance of the popular will, hoping to find a magic bullet that will forestall the inevitable day of reckoning. Chaos, dysfunction, unpopularity, public rage -- even in extreme doses none of it has proven enough to dislodge the authoritarian nightmare once it took root.

This isn't an Israel-only story -- I saw someone else making a similar observation about India -- but it is a grim harbinger of what will happen if Trump re-enters office. It was hard enough getting him out of office the first time. The second time around, he'll be even worse. It is beyond obvious he will take extreme, authoritarian measures to protect himself and to hurt his enemies, ones that will prove ruinously unpopular and will prompt widespread public protest. And it won't matter -- even leaving aside the myriad ways our "democratic" institutions do not reflect the democratic will, every incentive of Trump's ruling coalition will be to not respond to popular outrage, to not give an inch, to double-down at every moment. And the evidence from Israel suggests that this is a workable strategy -- when the fascists take power, their power is alarmingly resilient to public fury and terrifyingly immune to public outrage.

The first results should start appearing momentarily. I've spent all day on a "doom and bloom" cycle, but at this point we can only watch. I'm praying that America makes the right call, that government of the people, by the people, for the people, shall not perish from the earth.

Vote Joy

Tomorrow is election day. Voting isn't the only obligation of a democratic citizenry, but it is the most basic one. Voting isn't the guarantor of positive change, but it is an essential component of it.

If you haven't voted already, please make sure you get to the polls. And when you do, I encourage you to vote joy.

Don't Doom Before You Have To

After a good few months of heady optimism, the mood amongst Democrats has gotten considerably more dour. It's not because Harris is behind -- while there might have been some tightening of the race, if anything, polls still have her (narrowly) ahead. But I'm hearing more than a few liberals who are already preemptively resigning themselves to a Trump victory, glumly relaying an anecdote or a sentiment that it just "feels" like it's going to happen. And this is being paired with preemptive capitulations by major institutions, which is a very bad sign that some of the powers-that-be are already trying to get in good with a future dictator.

I'm inclined to agree with Paul Campos that the main instigator here is that we were dashed in our hopes of putting the election away by now. As he says, "it’s not much comfort to someone who thinks there’s a 50% chance that something absolutely catastrophic is about to happen to tell that person that hey be realistic, it’s probably only 45% or even 40% if you squint just right. For my part, the prospect of bringing a child into the sort of world that Trump would wreak in 2024 is outright terrifying. If in 2016 I suddenly grasped feeling safer in a blue state, looking out to a second Trump administration in 2025 I wouldn't feel safe anywhere. They'll be coming for us no matter where we hide. And if this is the end (as is alarmingly plausible) of America's global preeminence, well, historically speaking those sorts of falls rarely occur without destroying a lot of lives and livelihoods in the process.

I can't say that doom might not be coming. But there's no sense in dooming before one absolutely has to. Right now, there are still things we can do -- not just desperate rear-guard actions, but real, genuine moves that can push America in the right direction. If Trump wins, our best options will be somewhere in the field of "battlefield trauma surgeon trying to stop the patient from completely bleeding out." We're not there yet.

It's a little over a week until election day. Play to the whistle, and play to win. We can decide what comes after, after. For now, let's do this.

We Don't Know What a Fast Garland World Would've Looked Like

It is almost certain that Donald Trump is going to run out the clock on facing real legal consequences for his myriad 2020 election related crimes before the 2024 election occurs. Consequently, many are blaming Attorney General Merrick Garland for being too slow and cautious in his prosecution of Trump. By taking so much time before bringing his case, Garland enabled Trump's various delaying tactics -- aided, of course, by loyalist judges at both the trial level and Supreme Court -- to stretch the cases out until after election day. Had he moved faster and more aggressively, things would have been different.

Maybe. But the thing about alternate futures is that we can't live there; and if we did live there, we wouldn't know here. Suppose that Garland did move fast and aggressive on Trump right at the outset of Biden's term. And suppose that right-wing judges such as the current Supreme Court majority, or Judge Cannon, issued the same rulings that they did in our timeline -- providing broad immunity to Trump designed to shield him from legal accountability. I suspect that, in that timeline, there would be a lot blame cast at Garland for moving too quickly -- he rushed things, he let political expediency get in the way of methodically building a case, and so he gave the courts an excuse to slow things down or even to cast his investigation as a witch-hunt rather than a genuinely legalistic inquiry. Had he been more temperate, things would've gone differently

Now, since we live in our timeline, we know that a more temperate and methodical approach would not have led to a success story. But the point is not just that it's always easy to speak with the benefit of hindsight. It is that we actually don't know what alternative paths-not-taken would look like, and if we did know we wouldn't know what was happening in our path. This is a ubiquitous problem, and while it is entirely reasonable given what we know now to say that Garland made the wrong judgment, it is not hard to imagine a very plausible timeline where Garland made the judgment we (in the prime timeline) say is clearly "right" and it is widely viewed (in the alternate timeline) as a terrible and eminently avoidable miscalculation.

Things People Blame the Jews For, Volume LXX: Democracy Protests in Venezuela

To my knowledge, Venezuela has not yet featured in my "Things People Blame the Jews For" series. This, alas, is not for lack of antisemitism. But if this series was going to be comprehensive, I wouldn't be able to hold down a day job.

Anyway, Venezuela recently had an election, and there are two competing slates of results. The independently-reviewed data suggests that incumbent Nicolas Maduro lost in a landslide. The "official" results, by contrast, have Maduro winning by a 52% to 43% margin. The discrepancy is in large part due to the "official" results conspicuously refusing to release the actual precinct-tallies, with a variety of dog-ate-my-homework style excuses.

Unsurprisingly, Maduro's apparent attempt to steal the election is resulting in widespread protest and unrest. Equally unsurprising is where Maduro lays the blame for the protests: 

At a press conference on Saturday, Maduro blamed what he termed the “extremist right” for the unrest that has swept the country. He accused these groups of being “supported by international Zionism.” He alleged that Jews were manipulating social networks, media outlets and even satellite technology in an attempt to “steal the presidential election” from his socialist government....

Classic.

I do want to compliment Maduro on one thing, however. I've occasionally written on the aesthetics of election-rigging -- if you're just going to make up election results, how do you decide what your margin of victory should be? Too close and you emphasize your tenuous grip on power. Too wide and things just look ridiculous. To my eyes, 52 to 43 is a pretty good choice -- it is a comfortable margin of victory, while still looking to the uninformed eye like the sort of result one might expect to see in a genuinely contested race. My congratulations to the Maduro regime for showing their authoritarian peers how it is done!

The Work of Law

 

The Supreme Court this morning ruled in Trump v. Anderson that states cannot enforce the insurrection provisions of Section 3 of the Fourteenth Amendment against federal office-seekers. This part of the decision was 9-0,* and it rested largely on pragmatic grounds: state-by-state "enforcement" of Section 3 might lead to a patchwork of inconsistent state rulings and procedures, which would "sever the direct link that the Framers found so critical between the National Government and the people of the United States" and "could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times."

This pragmatic argument has purchase to it. This sort of "patchwork" was raised by many esteemed commentators, from all across the political spectrum. Many worried, for instance, that if Colorado was allowed to unilaterally disqualify Trump from the presidential ballot, then, say, Texas might do the same to Biden in response -- a tit-for-tat escalation that would throw the presidential election system into chaos.

To be sure, there also are certainly pragmatic arguments that push in the other direction. There is the practical need to ensure that Section 3 of the Fourteenth Amendment is actually enforced, for instance. There's also the fact that our federal system already bakes in a patchwork system of state regulation over federal elections that leads to a host of manifest inconsistencies -- that may be a bad idea, but it's one we've long accepted and will continue to accept in other contexts after this decision. And the worry about retaliatory red state action boils down to "if Colorado disqualifies Trump based on a legally plausible rationale, Texas might do so for transparently spurious and bad faith reasons. Given the state of the modern GOP, this possibility cannot be gainsaid entirely, but it is pathetic that we've even come to that point.

In any event, I digress. The main point I wanted to flag is that the Court rests its decision not so much on "originalism" or "textualism" but based on a practical assessment of what is necessary to ensure the workability of our presidential electoral process. As a pragmatist, I cannot complain about that approach -- except that it is an approach the Court only takes when it is convenient. In a year or so when we get our next Dobbs or Bruen, we will again no doubt see the Court solemnly intone that we must interpret the text of the constitution strictly in accord with the original meaning of the framers, consequences be damned (that's "results-oriented judging"!), and it will be revealed (even more than it already was) as a transparent lie. Beyond the merits of formalism versus pragmatism, it is the cheerful oscillation between the two based on the needs of the moment that reveal the fundamental arbitrariness of the governing Supreme Court majority (my fantasy is that just once we get a dissent that opens with, "the majority begins, as it must occasionally deigns to do, with the constitutional text...." and then but see cite all the cases where this Court has blitzed past the text to reach a "practical" result).

"The work of law," Justice O'Connor famously advised, "is to make the law work." I've long liked that approach. But when the work of law is revealed to be a work, not a shoot, there's little reason to trust judicial decisions that purport to rest either on workability or strict formalism.

* The Court also held, 5-4, that only Congress (not the judiciary) can effectuate the enforcement of Section 3 of the Fourteenth Amendment, based on the view that Section 5 of the Fourteenth Amendment renders this exclusively a congressional prerogative. I don't have much to say on this, except to note that I just finished teaching Section 5 doctrine in my Constitutional Law class last week and my notes contain a line about how "one view of the meaning of Section 5 is that only Congress can 'enforce' the Fourteenth Amendment; courts have to stay out. But nobody seems to take that extreme view ...." Certainly, this robust and exclusive understanding of congressional power would be news to the Congress that saw the Voting Rights Act struck down by the Supreme Court because Congress' textual Section 5 authority needed to yield to the judiciary's invented and atextual "equal sovereignty of the states" doctrine.

A Purely Federated U.S. "State" of Territoria?

This is one of those thoughts I had in the shower that might not go anywhere, but I wanted to run with it a bit.

As many of you know, one of my pet issues is statehood for all American territorial possessions. Not just DC statehood, but statehood for Guam, the U.S. Virgin Islands, American Samoa -- the whole shebang. I'm actually a bit of a hardliner on this in that I don't think the territories should have the option of remaining territories -- either statehood or independence. There's no justification, in a modern democracy, for there to be territorial possessions permanently under the domain of a sovereign but lacking full democratic rights and representation in that sovereign.

One problem with my vision is that many of the territories in question are quite small -- much smaller than any current state. Leaving aside Puerto Rico, which is somewhat of a special case, the largest American territory by population is Guam, with a little over 150,000 residents. By comparison, the smallest U.S. state is Wyoming, with a population of approximately 578,000.

Now, in theory I have no problem with a little state-packing of territories with trivial populations (that's in part how we got two Dakotas). But it's also the case that if you add all the non-Puerto Rico U.S. territories together, the population totals close to 340,000 -- still considerably smaller than Wyoming, but not absurdly so. If the only objection to territorial statehood is population, I don't think that objection holds to the combined state of "Territoria".

Of course, it might seem absurd to combine into one state the U.S. Virgin Islands (in the Caribbean) with Guam, the Northern Marianas Islands, and American Samoa (half a world away in the Pacific Ocean). Hell, even Guam and American Samoa, despite both being "Pacific Island Territories", are more than 3,600 miles apart. How would "state" government even work in that context?

But that made me wonder -- is there any problem with a "state" deciding to organize itself on a completely federated level -- total autonomy for each traditional "territory", with no or virtually no power in the "state" legislature? Could there be a "state" of Territoria which exists only to have a Representative and two Senators, but which otherwise is an empty shell comprising the actually active and empowered "local" governments of the constituent territories?

I don't claim this is a miracle drug solution. For starters, it would end the distinctive (albeit non-voting delegate) representation of each individual territory. Especially given that Guam would comprise almost 45% of the population of "Territoria" on its own, I can certainly imagine the other territories crying foul at that. And as I said, I don't actually have a problem with the "pure" state-packing play of giving the U.S. Virgin Islands and its 87,000 denizens full statehood on its own.

But it's an interesting thought, no -- the concept of a "state" that exists only as a vector for national representation, but otherwise makes no claims to be the governing body for its constituent territories? I at least find it a bit intriguing, if only as a thought experiment that might open other doors.

Steeled for Stealing

Last night, I had -- well, epiphany is probably too strong of a word. Crystallization, perhaps. A thought I already basically knew just became clearer in my mind. Namely: that the next time a major Republican candidate tries to overturn the results of an election, they're going garner a lot more support from the Republican establishment (in particular, the GOP judiciary).

Oddly enough, it was the 5th Circuit's latest ivermectin ruling that triggered the realization. Even at the start of the pandemic, we wouldn't see right-wing judges pulling stunts like this. The seals were still in place; it takes time for them to crack. But as they start to come undone, there's no backstop of legal or ethical duty to hold them in place.

Despite Trump's regular warnings (dating back to 2016) that he would not respect the results of an election that he lost, few in our political and legal elite really believed that he would go through with an overt plan to steal the election. Remember "What's the downside for humoring him?" It wasn't real until suddenly it was. And as a consequence, Republican elites hadn't really braced themselves to go all in for election theft. It's not just that it was too much, it was that it came too fast. They weren't ready.

But with time and distance, the Republican Party has come to assimilate Trump's actions as justified (same as they've done for every other one of Trump's abuses). Those who actually did unashamedly oppose Trump's actions have been ruthlessly purged from the party. Nascent momentum to support consequences for Trump during the second impeachment trial have entirely disappeared as far as the GOP is concerned. The unthinkable became thinkable, and Republicans have had four years to come up with clever rationalizations and apologias for why actually overturning democratic elections is fair play and What The Founders Would Have Wanted.

I've remarked before that GOP election theft attempts are akin to the carnival game where you swing a hammer and try to ring the bell. They weren't strong enough to ring it the first time. But they're getting stronger. It's not just that the next attempt will be less slap-dash and more well-organized (though it is that). It's also that the GOP has had time to mentally brace itself that stealing elections is appropriate, even necessary, and certainly just.

In 2020, virtually all GOP judicial actors refused to go along with Republican efforts to steal the election. Come 2024, I do not expect to see that unanimity anymore. They've steeled themselves for stealing, and next time they will come harder than before.

2008 2012 2016 2020 2024 2028 Will Be The Year!

Some early polling has been released on how Jews plan to vote in 2024, and the big surprise is there's no surprise: Jews will, as in every other year, overwhelmingly support the Democratic candidate. In a Biden/Trump matchup, Jews favor Biden by a crushing 72/22 margin.

Other highlights:

• Biden enjoys a healthy 63/33 approval rating. Trump is absolutely toxic at 19/80. But Ron DeSantis is barely better, clocking in at 21/76. Oh, and Netanyahu? Not such a hot commodity himself, at 28/62.
• What's the biggest issue that concerns Jewish voters? "The future of democracy". 37% of Jewish voters placed that in their top two most important voting issues. Other issues which got flagged by at least 20% of respondents include inflation/the economy, abortion, climate change, and guns. 
• Israel, for what's worth, got top two billing by just 6% of respondents. But 72% of respondents still maintain an "emotional attachment" to Israel. This does not stop them from viewing the Netanyahu's judiciary proposals extremely negatively -- 61% say they will have a negative effect on Israel's democracy.
• Abortion continues to be the 900 lbs monster of Jewish politics: 88% of Jews believe it should be legal in most or all cases. There's no other issue area that sees that level of agreement.

I also want to flag in particular the questions regarding "Who do you trust more to fight antisemitism?" Democrats hold a significant advantage over Republicans -- 57/22. And the gap has climbed considerably in the past year -- in April 22, that margin was 45/20. It appears that most of the gain has come from a ten point drop in the percentage of people who responded "trust neither party". This, to me, suggests that Biden's public and aggressive push to get out on front on antisemitism has paid dividends, "bringing home" more centrist-y Democrats who had been ambivalent or displeased about Democrats' commitment on the issue in years prior.

In any event, major condolences to the Republican Jewish Coalition on yet another imminent failure. But I have no doubt 2028 will be the year that Jews finally flock en masse to the GOP!

Why Did The Law Constrain Them Now?

Way back when, I spotted a great parodic bumper sticker during the 2008 presidential campaign. It read: "Bush-Cheney 2008: Why should the law stop us now?"

Yesterday in Allen v. Milligan, the Supreme Court defied expectations and, in a 5-4 ruling, preserved some semblance of a Voting Rights Act by striking down Alabama's congressional maps as illegally racially gerrymandered. Chief Justice Roberts and Justice Kavanaugh "crossed the aisle", so to speak, and now everyone is trying to figure out why (for Roberts in particular, whose hostility to voting rights long predates his time on the Court).

It is a sign of our cynical era that virtually nobody thinks the answer is "because they felt this was the right legal answer." This is especially striking because, when a justice does vote against their presumed ideological proclivities, that would seemingly spawn a greater inference that they genuinely believed in their position's formal legal correctness. If they faced the happy coincidence of "the law supports the defendant" and "I, personally, support the defendant", why wouldn't they raise a glass to their good fortune and vote accordingly?

But on the constitutional law listserv I'm a member of, everybody seems to think that this is some political legitimacy play. The conservative members cannot fathom that their preferred outcome is not legally correct; they think that Roberts and Kavanaugh voted in some ill-conceived attempt to "store political capital" and stave off allegations that the Court has become a six-member right-wing wrecking ball. Needless to say, they hold such a practice with nothing but contempt; they think Roberts and Kavanaugh are squishes. The liberals in the group, of course, do think the outcome is legally correct, but they too seem to think it's fanciful that something as trifling as "the law compels it" motivated Roberts' and Kavanaugh's votes. After all, they might ask, after years of taking a flamethrower to settled judicial doctrine and longstanding precedents in service of a hard-right agenda, why should the law have constrained them now? They also don't give much, if any, credit to the justices for any "legitimacy" chits they might have thought they earned.

It is hard for me not to credit the cynicism here. But if I were to craft a non-, or at least less-, political explanation for Roberts' and Kavanaugh's votes, it would be to distinguish between the millenarian and Burkean conservative impulses seen on the Court. 

The former is the pull of reactionary revolution -- you see the promised land, and are ready to chop down anything in your path that poses a barrier to reaching it.  In this mode, the Court's conservatives will burn down precedent, torch settled expectations, and tank the Court's political legitimacy in pursuit of a vision of idealized legal conservatism that they insist is right and true. "The heavens may fall that justice be done." Millenarianism is the impulse that yielded Dobbs, Bruen, and Kennedy, the new "major questions" doctrine and the possible overturning of Chevron, the prospective end to affirmative action and the stunning plausibility of adopting the Independent State Legislature doctrine. Radical alterations of law with unknown and unknowable consequences, in deference to abstract right-wing legal theory and/or concrete right-wing political results. Thomas, Alito, Barrett, and Gorsuch all seem to be in thrall with the millenarian vision, albeit with perhaps slightly different visions of what utopia should look like.

The Burkean mode, by contrast, is the mode of caution, prudence, and restraint. It shies from radical change, it is cognizant of the many things it doesn't know. Recognizing the complexity of the legal machine it oversees, the Burkean conservatives are reluctant to fiddle with the dials too readily. They're willing to trim and cut, but look skeptically upon sweeping change. This impulse, at least, is found in Roberts' Dobbs concurrence, the mifepristone stay, and the so-far unwillingness to endorse any of the yearly crackpot attempts to kneecap the Affordable Care Act. It is not about liberal outcomes (as my placing Roberts' Dobbs opinion in the category should make clear); in other times, Burkeanism might operate as a voice of restraint against sweeping progressive legal victories (recall Roberts' Obergefell opinion). But on this Court, the realistic choices are between radical right-wing change and upholding the status quo -- it's hard to think of a single example of a Court ruling since Barrett's ascension that actually represents change (radical or otherwise) in a progressive direction (the liberal "victories" have generally taken the form of "managing to hold the line against a conservative assault").

On the current Court, Roberts and Kavanaugh have been most susceptible amongst the conservatives to the Burkean impulse, albeit typically in no more than halting fashion. But it's more than just naked political appeasement or trying to impress the libs (neither justice, I think it is fair to say, has shown either much interest or much success in garnering even begrudging liberal admiration). Burkeanism is a branch of conservatism too, and it shouldn't surprise that within the conservative coalition there would be those who find it comparatively more appealing. Some conservatives look at the messianic fervor that has gripped their compatriots and get antsy. They certainly feel the temptation. But ultimately, they are not quite so keen to smash the machine; they are not quite so confident they understand the fallout. And so, periodically, they step back from the abyss, and restrain themselves. Perhaps that's what happened here.

The Tennessee Three: Whataboutism as Fascism Apologia

You've no doubt heard at this point about "the Tennessee Three", three Democratic members of the Tennessee State House facing an expulsion vote for their role in a protest against gun violence that occurred on the state legislative floor. Expulsion is a rarely-invoked procedure in Tennessee, typically reserved for obvious cases of criminality of misconduct (e.g., a bribery scandal) in cases that garner bipartisan support. To use it to kick out minority party members for a raucous protest the majority found embarrassing is a huge overreach, an exploitation of the GOP's supermajority status to further undermine basic democratic principles.

I wanted to flag a particular comparison Tennessee Republicans are using to justify their conduct -- comparing the protest to the attempted insurrection on January 6:

House Speaker Cameron Sexton compared the incident to Jan. 6: "What they did today was equivalent, at least equivalent, maybe worse depending on how you look at it, to doing an insurrection in the State Capitol," he said.

Sexton also noted that Jones and Johnson had previously been "very vocal about Jan. 6 and Washington, D.C., about what that was."

There was, of course, no insurrection here: the protest had no ambitions of overthrowing the government. But there's something revealing about this rhetorical move that I think typifies the way conservatives are normalizing and justifying fascist behavior.

Even now, many Republicans are kind of willing to concede that there was something ... untoward about January 6, and the broader campaign of election denial that spawned it. "Kind of" because they face tremendous pressure to outright endorse it, as Sexton's "maybe worse" aside makes clear. But to the extent they to recognize that there's something wrong with what happened on January 6, what they want to do is present things like January 6 as an ordinary sort of ugliness, the sort of foul or misconduct one can see from all parts of the political spectrum. Yes, maybe the January 6 thing went a bit too far. But it's not distinctive; this is a problem one can see across the aisle too. Look at Black Lives Matter protests -- why aren't they being treated like the insurrectionists? Maybe Trump shouldn't have denied the election, but is it really any different from Al Gore demanding a recount in 2000? Trump stole classified documents; well, what about her emails? Whatabout, whatabout, whatabout.

By transferring these egregious examples of anti-democratic thuggery into the realm of "normal" politics, Republicans justify treating them via the "normal" (partisan) political process. Sure it might be a bit distasteful, and more than a little opportunistic, but hey, that's politics. There's nothing exceptional here that demands standing on a broader principle. Everything blurs into an indistinguishable mush of "sometimes politics gets ugly." And in that universe, well, it's just realistic that Republicans probably won't pay much attention to their "normal" nips that might cross the line. Cynicism styles itself as realism, but it's really just cowardice.

None of this is to say that straightforward political thuggery isn't sufficient explanation for why Tennessee Republicans are acting the way they are. But there is a broader justificatory narrative being crafted here. The Tennessee Three isn't just about state and national Republicans being contemptuous of democratic norms (though it's certainly about that too). It's yet another effort to pull the extreme conservative threats to basic rule of law principles out of the realm of "extreme" and blur them into the normal hurly-burly of every day politics. Exploiting the media's instinct to "both sides" everything, the GOP will just troll all the way down

Wisconsin Man's Upward Fall Arrested

Democracy may finally be coming to Wisconsin, as Janet Protasiewicz defeated arch-conservative Daniel Kelly to flip a key seat on the state supreme court.

The Wisconsin Supreme Court has been a national embarrassment for years. This was the court where a justice tried to choke out one of his colleagues, after all. More recently, it was by far the court that came closest to endorsing Donald Trump's authoritarian campaign to overturn the 2020 election. Members of the conservative faction have since openly questioned the validity of President Biden's victory, putting them far outside even the conservative judicial mainstream and marking them as little more than partisan thugs.

Can you imagine the sort of totalitarian hellscape where the votes of the majority play essentially no role in determining who wins elections? pic.twitter.com/VScxrZV5CR

— David Schraub @schraubd@mastodon.lawprofs.org (@schraubd) July 8, 2022

And yet, even among this sorry bunch, Daniel Kelly would have stood out.

I first wrote about Daniel Kelly when he was initially appointed to the Wisconsin Supreme Court by then-Governor Scott Walker. He had made an argument comparing affirmative action to slavery, something that -- even restricted to the "civil rights programs are the new slavery!" field -- was jaw-dropping in its stupidity (and "civil rights programs are the new slavery!" is already a field saturated with stupidity).

Over the course of his career, and over the course of this campaign, Kelly has proven himself to be the definition of a mediocrity who's managed to fall upward via the beneficent hand of the right-wing gravy train. His academic pedigree is undistinguished. He had no judicial experience when he was appointed to the court by Walker in the first place, and after his (first) defeat he stayed plugged into Wisconsin GOP politics by providing legal advice to the effort to steal the state for Trump after Joe Biden's 2020 victory. And of course, all have now witnessed his petulant response to being defeated by Protasiewicz:

"I wish that in a circumstance like this, I would be able to concede to a worthy opponent," he said at an event held at the Heidel House Hotel in Green Lake. "But I do not have a worthy opponent to which I can concede."

Kelly called Protasiewicz's campaign "deeply deceitful, dishonorable and despicable." "My opponent is a serial liar. She's disregarded judicial ethics; she's demeaned the judiciary with her behavior. This is the future that we have to look forward to in Wisconsin."

Adding: "I wish Wisconsin the best of luck, because I think it’s going to need it."

[...]

"The people of Wisconsin have chosen the rule of Janet. I respect that decision because it is theirs to make," he said. "I respect the decision that the people of Wisconsin have made, but I think it does not end well."

If ever there was a definition of "lacking in judicial temperament," he personifies it.

Yet beyond that, Kelly is a familiar, if not archetypical figure. He is suffused with entitlement for that which he has not earned, and consumed by rage when he doesn't get it. There are thousands -- millions -- of men (almost always men) just like him. Most don't go on to become state supreme court judges, though many do bully themselves into positions far beyond their talents or capacities by a mixture of being useful to the right people and being an impossible menace when they don't get what they want. When they do, finally, see their upward fall arrested, they are incredulous and infuriated at the injustice of it all. Hell hath no fury like a mediocre White man scorned.

Indeed, perhaps Kelly's only mistake was being appointed to the Wisconsin Supreme Court instead of the Seventh Circuit Court of Appeals -- a position from which he could never be dislodged no matter how apparent it became that he was ill-suited for the position. On the federal bench, with life tenure, he could have prowled and fulminated and lashed out with impunity, forever; secure in the knowledge that it would be constitutionally impossible to ever hold him accountable. One can only imagine the law school classes he would have baited and berated.

But alas, Daniel Kelly is a creature of the state bench, and in Wisconsin, supreme court justices must meet the approval of the voters. Twice now, the voters have resoundingly rejected Daniel Kelly as unsuited for the role of state supreme court justice. Kudos to them. And while Democrats are celebrating Protasiewicz's win, the bigger winner is the small-d democracy that has been under siege in Wisconsin for far too long.

Even Friendly Dominance Is Still Dominance

For some reason, a slew of congressional Democrats (along with President Joe Biden), most whom purport to support DC statehood -- most of whom I think genuinely support DC statehood -- voted to overturn the DC government's recent alterations to its criminal code.

This was a foolish decision, not the least because you give the GOP and inch and it takes a mile on these things.

But in its way, it demonstrates exactly why DC needs statehood.

The simple fact is that no matter how warm or empathetic any particular national politician feels towards DC, they cannot be trusted to govern DC insofar as they are not elected by DC voters. That's the entire point of democracy -- that our representatives are chosen by us, and so gain the legitimacy to write laws on our behalf. If DC were a state then normal, local lawmaking about DC would be undertaken by politicians accountable to DC voters. That doesn't mean all their choices will be good or salutary, but DC residents have the same right to make what some might deem to be mistaken policy choices as Kentucky or Idaho or Maine voters.

And the setup that DC has now -- with putative home rule, but subject to the oversight and approval of Congress -- will never substitute for actual home rule. Even men and women who think of themselves as DC supporters, who have naught but fair-feeling towards the people of DC, will be unable to resist the allure of substituting their own judgment for those of the actual DC polity. Whether because of strong feelings on a given issue or simply the happenstance of political maneuvering, those who have the power to dominant will exercise that power.

So long as Congress has the special power to override DC home rule, it will exercise that power -- it does not ultimately matter how "friendly" the individual Senators and Representatives are. The only way to end that is to give DC true, actual homerule on the same terms as any other American jurisdiction -- that is to say, by statehood.

(And yes, the same applies for all the American colonies).

New York Voters Who Elected George Santos Should Be Ashamed of Themselves

The degree to which George Santos appears to lie about everything really is jaw-dropping even in a post-Trump America. Is it worse to be the subject of a general list of one's "top 11 most absurd lies", or to be the subject of more specific headlines like "George Santos took $3,000 from dying dog’s GoFundMe, veterans say"? I can't even process.

I am curious, though, to see more interviews with voters in New York's 3rd congressional district, who just sent him to Congress. The NY-03 is a swingy enough district that I don't think Santos will be the beneficiary of too much "own the libs!" or "red right or wrong!" apologetics. Nonetheless, I want to know -- are Santos' constituents embarrassed? Not just of him, but of themselves? They picked this guy, after all. We get angry at politicians all the time, but in a democracy the choices of We the People are the responsibility of We the People. George Santos is first and foremost a failure of George Santos, but he is also in non-negligible fashion a failure of the voters who elected him.

It is I think too much to hope for that voters reckon with how they can taken in by such a naked fraudster and internalize some lessons that will inculcate them from future mistakes. But a boy can dream.

Reading Rosenberg in 2022 Portland

I'm teaching a seminar on Anti-Discrimination Law this semester -- the first time I've taught the class in 10 years. One of assigned materials is Gerry Rosenberg's classic book The Hollow Hope, a famous critique of the judiciary's ability to bring about social change.

I was especially curious to hear my students' reaction to the book, as I think a lot has change even over the past ten years regarding some of the underlying presumptions that made Rosenberg's book so explosive when it was released, or even when I first assigned it in 2012.

Back then ("then" being the early 1990s, when the book originally came out, and 2006, when I first read it, and 2012, when I first taught it), liberal law students still were I think largely operating in the nostalgic shadow of the Warren Court as the model of what courts should be doing on behalf of vulnerable minority groups. Courts were presumed to be an important vector of social change; to the extent the Supreme Court had become conservative it was frustrating that judicial conservatives wouldn't let the judiciary do its job like it did in the mid-20th century. The Hollow Hope was such a shock to the system because it suggested, not that the Warren-era precedents were illegitimate or products of bad judicial reasoning, but that they didn't matter -- they (allegedly) did virtually nothing to bring about the lauded progressive changes like desegregation in the 1950s and 60s.

But kids these days, I figured, may not hold the judiciary even conceptually in such high regard. I could very much imagine the progressives in my classroom coming in with a lot of preexisting cynicism towards the courts -- the baseline assumption being courts as obstacles to social progress rather than (currently malfunctioning) enablers of it. For that sort of student, how would Rosenberg be received?

The conversation we had in class was interesting and dynamic (as they typically are -- I have great students). But it ended on a topic that has virtually never come up in my law school classrooms until now: the earnest questioning of when political violence is justified.

I want to be clear: this question, like any other, is a valid subject for classroom discussion. America was founded by violent revolution, after all; in my Constitutional Law class we just finished reading about the importance of protecting under First Amendment principles discussion about, or even "abstract advocacy" of, violence as a tool for seeking political change.

Nonetheless, it was a sobering discussion, and one that felt very much borne out of despair. Rosenberg, it seemed, put the nail in the coffin of any hopes of using courts as a vector for social change, at least as against entrenched and powerful social interests. And they were already deeply cynical about the vitality of democratic institutions as a meaningful avenue for securing progress -- not because they opposed democracy in concept, but because they thought our democratic institutions had been so malformed by corruptions like gerrymandering, voter suppression, and boundless money in politics that there was no longer reliable correspondence between the nominally democratic levers of power and the popular will. Given that, they wanted to ask, to what extent are we in an arena where at the very least we need to take seriously the prospect of widespread political violence, and act accordingly? (One student, in particular, was absolutely emphatic that liberals needed to arm themselves -- the fascists were coming, he said, and we absolutely cannot rely on the state to protect us anymore).

Again, the discussion was thoughtful, bracing, and serious -- in particular, there wasn't a lot of gleeful discussion of violence that one occasionally hears from the more radical set, which falls over itself in the eagerness to "punch Nazis". But also again, it was sobering just that this was where my students' minds were at -- a cynicism and depression pushed nearly to the breaking point, and serious lack of confidence in the vitality of the basic institutions of liberal democracy. As a pretty normcore liberal, that worried me. And even more worrisome to me is that I did not feel like I had a lot of compelling arguments to assuage their fears.

The 2022 Almost-Post Mortem

I was a bit hesitant to write my post-mortem recap today, since some very important races remain uncalled. Incredibly, both the House and Senate remain uncalled, though the GOP is favored in the former and Democrats have the slight advantage in the latter. It would be truly delightful if Catherine Cortez Masto can squeak out a win in Nevada and so make the upcoming Georgia run-off, if not moot, then slightly less high stakes. But again, things are up in the air that ought make a big difference in the overall "narrative" of the day.

Nonetheless, I think some conclusions can be fairly drawn at this point. In no particular order:

• There was no red wave. It was, at best, a red trickle. And given both the underlying fundamentals  on things like inflation and the historic overperformance of the outparty in midterm elections, this is just a truly underwhelming performance for the GOP. No sugarcoating that for them.

• If Trafalgar polling had any shame, they'd be shame-faced right now, but they have no shame, so they'll be fine.

• In my 2018 liveblog, I wrote that "Some tough early results (and the true disappointment in Florida) has masked a pretty solid night for Democrats." This year, too, a dreadful showing in Florida set an early downer tone that wasn't reflected in the overall course of the evening. Maybe it's time we just give up the notion that Florida is a swing state?

• That said, Republicans need to get out of their gulf-coastal-elite bubble and realize that what plays in Tallahassee doesn't play in the rest of the country. 

• That's snark, but also serious -- for all the talk about how "Democrats are out-of-touch", it seems that the GOP also has a problem in not understanding that outside of their fever-swamp base most normal people maybe don't like the obsession with pronouns and "kitty litter" and "anti-CRT". Their ideological bubble is at this point far more impermeable, and far more greatly removed from the mainstream, than anything comparable among Democrats.

• Abortion is maybe the biggest example of this, as anti-choice measures keep failing in even deep red states like Kentucky, while pro-choice enactments sail to victory in purple states like Michigan (to say nothing of blue bastions like California). Democratic organizers should make a habit of just putting abortion on the ballot in every state, and ride those coattails.

• It's going to fade away almost immediately, but I cannot get over the cynical bad faith of what happened regarding baseless GOP insinuations that any votes counted after election day were inherently suspicious. On November 7, this was all one heard from GOP officials across the country, even though delays in counting are largely the product of GOP-written laws. But on November 8, when they found themselves behind on election night returns, all of the sudden folks like Kari Lake are relying on late-counted votes to save them while raising new conspiracies about stolen elections. Sickening.

• Given the still powerful force of such conspiracy mongering, Democrats holding the executive branch in key swing states like Wisconsin and Michigan is a huge deal. Great job, guys.

• For the most part, however, most losing MAGA candidates are conceding. Congratulations on clearing literally the lowest possible bar to set.

• The GOP still should be favored to take over the House, albeit with a razor-thin majority. And that majority, in turn, seems almost wholly attributable to gerrymandering -- both Democrats unilateral disarmament in places like New York, but also truly brutal GOP gerrymanders in places like Florida. This goes beyond Rucho, though that case deserves its place in the hall of shame. The degree to which the courts bent over backwards to enable even the most nakedly unlawful districting decisions -- the absurd lawlessness of Ohio stands out, but the Supreme Court's own decision to effectively pause enforcement of the Voting Rights Act because too many Black people entering Congress qualifies as an "emergency" on the shadow docket can't be overlooked either -- is one of the great legal disgraces of my lifetime in a year full of them.

• Of course, I have literally no idea how the Kevin McCarthy will corral his caucus with a tiny majority. Yes, it gives crazies like Greene and Boebert (well, maybe not Boebert ...) more power, but that's because it gives everyone in the caucus more power, which is just a recipe for chaos. Somewhere John Boehner is curling up in a comfy chair with a glass of brandy and getting ready to have a wonderful day.

• My new proposal for gerrymandering in Democratic states: "trigger" laws which tie anti-gerrymandering rules to the existence of a national ban. If they're banned nationwide, the law immediately goes into effect. Until they are, legislatures have free reign. That way one creates momentum for a national gerrymandering ban while not unilaterally disarming like we saw in New York. Could it work? Hard to know -- but worth a shot.

• Let's celebrate some great candidates who will be entering higher office! Among the many -- and this is obviously non-exhaustive -- include incoming Maryland Governor Wes Moore, incoming Pennsylvania Governor Josh Shapiro, incoming Pennsylvania Senator John Fetterman. Also kudos to some wonderful veterans who held their seats in tough environs, including Michigan Governor Gretchen Whitmer, Virginia congresswoman Abigail Spanberger, New Jersey congressman Andy Kim, Maine Governor Janet Mills, and New Hampshire Senator Maggie Hassan.

• Special shoutout to Tina Kotek, who overcame considerable headwinds (and the worst Carleton alum) to apparently hold the Governor's mansion in my home state of Oregon. Hopeful that Jaime McLeod-Skinner can eke out a victory in my congressional district too, though it looks like that might come down to the wire.

• I also think it's important to give credit even to losing candidates who fought hard races. Tim Ryan stands out here -- not only did he force the GOP to spend badly needed resources in a state they should've had no trouble keeping, but his coattails might have pushed Democrats across the finish line in at least two House seats Republicans were favored to hold. (I hate to say it, but Lee Zeldin may have played a similar role for the GOP in New York).

• I'm inclined to agree that, if Biden doesn't run in 2024, some of the emergent stars from this cycle (like Whitmer or Shapiro) are stronger picks for a presidential run than the also-rans from 2020. But I also think that Biden likely will get an approval bump off this performance -- people like being associated with winners!

• On the GOP side, the best outcome (from my vantage) is Trump romping to a primary victory and humiliating DeSantis -- I think voters are sick of him. The second best outcome might be DeSantis winning narrowly over Trump and provoking a tantrum for the ages that might rip the GOP apart. DeSantis himself, as a presidential candidate, is an uncertainty -- I'm not convinced he plays well outside of Florida, but I am convinced that if he prevails over Trump the media will fall over itself to congratulate the GOP on "repudiating" Trumpism even though DeSantis is materially indistinguishable from Trump along every axis save that he's not abjectly incompetent (which, in this context, is not a plus).

• The hardest thing to do is to recognize when even candidates you really like are, for whatever reason, just not going to get over the hump. This fits Charlie Crist, Beto O'Rourke, and (I'm sorry) Stacey Abrams. It's no knock on them -- seriously, it isn't -- but they're tainted goods at this point. Fortunately, Democrats have a deep bench of excellent young candidates who we can turn to next time around.

• And regarding the youth -- I'm not someone who's a big fan of the perennial Democratic sport of Pelosi/Schumer sniping. I think they've both done a very good job under difficult circumstances, and deserve real credit for the successes we saw tonight and across the Biden admin more broadly. However, we do need to find room for some representatives from the younger generation to assume leadership roles. Younger voters turned out hard for the Democratic Party and deserve their seat at the table. It says something that Hakeem Jeffries, age 52, is the immediate current leadership figure springing to mind as a "young" voice -- that (and again, there's no disrespect to Jeffries here) is not good enough.

It's Not Cheating for Republicans To Lose: Ranked-Choice Voting Edition

I know it's not worth it to engage in Republican histrionics about how ranked choice voting is anti-majoritarian after Democrats won an Alaska House seat last week. The actual objection, as Republicans have made manifestly clear in their behavior over the past few years, is to "Democrats winning elections", and there's nothing deeper than that going on under the surface.

But the arguments they're making about how ranked choice systems are anti-democratic because "60% of the voters in Alaska voted for the Republican agenda" are so transparently ridiculous, and are being repeated with such vigor, that they need to be addressed.

Of course, it is a misnomer off the bat to say that a majority of Alaskans voted for "the Republican agenda". Voters don't vote for "agendas", they vote for candidates. And leave aside the notion that Republicans suddenly care about majoritarianism in a electoral system riddled with anti-democratic elements ranging from gerrymandering to the Senate to the Electoral College.

Nonetheless, it is the case that something feels off when more voters choose candidates from party X but, because they're divided, a single candidate from party Y prevails with a plurality. This can afflict Democrats as well as Republicans (witness worries about Democratic "lock outs" in California's top-two primary system). And it's worth noting that this circumstance is actually very common in a multi-candidate field with first-past-the-post rules. Indeed, Mary Peltola won a plurality of first-choice votes -- she would have won the election without a ranked-choice run-off! (Peltola had 41% of the initial vote, with Palin receiving 31% and Begich 28%).

But here's the thing: when we see voting patterns where 40% of the electorate backs a Democrat, 35% back Republican A, and 25% back Republican B, the reason we think it's unfair that the Democrat wins is that we assume if we asked the supporters of Republican B "if you had to choose, would you back Democrat or Republican A", they'd pick the latter. It's a reasonable enough assumption in a party system, to be sure, and in many occasions I suspect it's an assumption that'd be borne out. But all ranked choice voting does is actually ask the question rather than assume its answer. And it turns out that in Alaska, enough supporters of "Republican B" (Begich) did not prefer Republican A (Palin) over Democrat (Peltola). So the Democrat won, for the simple democratic reason that most Alaska voters preferred her over the most popular Republican competitor. That's not cheating, that's an election!

Put simply, if a majority of Alaska voters' preference was to elect a Republican -- any Republican -- over a Democrat, the voting system in Alaska gave them ample opportunity to make that choice. They chose otherwise, because it turns out that their preferences weren't that simple. And ultimately, that's what's driving Republican rage here: they think the voters' preferences were wrong, and so it is cheating for their will to have prevailed. Hard to think of a pithier summary of contemporary GOP attitudes towards democracy.