Which Nuts Crack?

I like to keep a half eye on Senate, House, and gubernatorial polling trends at The Downballot (formerly Daily Kos Elections). There are quite a few swing state races that are certainly close, but seem to have mild Democratic advantages -- these include the Michigan and Pennsylvania Senate races, for instance. But there are also some swing state races where Democrats are running away with it -- Ruben Gallego looks set to smoke Kari Lake in Arizona, for instance; same with Josh Stein over Mark Robinson in the race for North Carolina Governor.

All of these races are occurring in tightly contested swing states. If anything, Arizona and North Carolina are more red leaning than are Michigan and Pennsylvania. So why are Lake and Robinson doing so poorly?

Obviously, the most straightforward answer is "they're both certified nutjobs." But the same statewide polls that have Lake and Robinson down by double-digits have Trump either tied or ahead. And I truly, honestly, cannot figure out what sort of person recognizes the nuttiness of a Kari Lake or a Mark Robinson but doesn't see it in Trump. What's the difference? What makes Trump's lunacy different from Lake's or Robinson's? What characterizes the voter who sees Lake or Robinson as different-in-kind from Trump?

As They Do

The ongoing fallout of the Dobbs decision, and the way it's made manifest the GOP's extreme and retrogressive anti-abortion priorities, has caused no small amount of soul-searching amongst Republican politicians. We saw, for example, a slew of Arizona Republicans race to disavow their own hand-packed-picked supreme court's decision to resurrect a pre-statehood near-total ban on abortion. Donald Trump also came out and said he opposed a national abortion ban. What should voters make of this about-face?

Nothing. Absolutely nothing. Why not? Because Republicans are, to be blunt, lying. No matter what they say, no matter what press releases they write, no matter what interviews they give, when push comes to shove, they will absolutely either endorse or acquiesce to the most draconian possible limitations on female reproductive autonomy. That's the full truth.

The list of supporting evidence on this is essentially endless, but I'll just give two examples:

Exhibit A: Arizona, where the GOP-controlled legislature -- fresh off their oh-so-pained public squirming over the aforementioned state supreme court ruling -- has continued to block legislative efforts to actually, you know, repeal the offending law.

Exhibit B: Florida, where Senator Rick Scott rapidly backtracked from his own heresies calling for greater moderation on abortion after that state's supreme court reversed decades-long precedent clear the way for abortion bans by clarifying that of course he'd support even a six-week ban if given the opportunity.

These are two among many.

I suspect that over the next few months, we will continue to see more Republican rhetoric that gestures at some sort of "moderate" or "compromise" position on abortion, occurring right alongside more extreme tangible implementations of the right's extremist anti-choice agenda (what's going to happen when the Supreme Court permanently allows states to murder pregnant women in defiance of federal law). Even as rhetoric, it's hollow -- the "exceptions" they promise are nugatory or impossible to implement, the "deals" on offer are to impose unwanted bans on blue states while letting red states be as extreme as they desire -- but more than that they're lies. No matter what they say, no matter what they earnestly promise, no matter what soul-searching they might promise, where Republicans are in charge what they will do is push for and defend the most draconian abortion bans they can possibly get away with.

There's no lever that will get Republicans to behave differently; no weird trick that can change their minds. Where they have power and hold office, this is what they will do. Our only option is to deprive them of that power. No matter what they say, no matter what they believe, anyone who is taking any steps right now to assist Republicans taking or keeping office is tacitly endorsing extreme abortion bans. There's no way around it.

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.

Blindness or Short-Sighted Caution: Memmi on the Jew-of-the-Right

 "How can a man be a Rightist when he is a Jew?," Albert Memmi asked in A Portrait of the Jew.

The alliance of Jewry with Right wing movements can never be anything but temporary . . . To preserve the existing order, the Right has to stiffen and emphasize differences while at the same time having no respect for what is different. To preserve itself as a privileged group, it must repulse, restrict and repress other groups. Now it may be that a Jew may desire the survival of a given social order in which, by chance, he is not too unhappy. But in addition, he wants the differences between himself and the non-Jews in that class to be forgotten or at least minimized. The Right, either openly or covertly, drives the Jew back to his Jewishness and can only condemn and burden his Jewishness. Not to speak of times of crisis when the Rightist doctrine, whipped to a frenzy, is driven to violent solutions, to the use of sentiments and methods that debase the lives of Jews (218-19).

In his next book, The Liberation of the Jew, Memmi reiterated the point more bluntly: "[A] Jew is conservative only out of blindness of some short-sighted caution" (228). If you are a Jew and you find right-wing movements appealing, it's because you're not paying attention, or because you aren't looking more than six inches in front of your own feet. The end of the story is all too predictable, only an idiot could not see it coming. And this is an observation Memmi makes in the midst of a searing critique of the left and its treatment of the Jews. That critique notwithstanding, Memmi still wants to be crystal clear that the Jew-of-the-right is a fool.

Much has been made over the way in which the anti-CRT frenzy, first confined to local offices like school boards, may have accounted for major conservative victories in the elections yesterday. Juxtapose that account with this story, also from this week, about how that rhetoric is playing out in one such school board meeting in Arizona:

During the public comment portion of the meeting of the Chandler Unified School District board, a woman who identified herself as Melanie Rettler spoke for over a minute about critical race theory and vaccines — topics not listed on the meeting agenda but at the center of heated public debate nationwide.

Her comment crescendoed with an antisemitic claim drenched in the language of right-wing conspiracy theories.

“Every one of these things, the deep state, the cabal, the swamp, the elite — you can’t mention it, but I will — there is one race that owns all the pharmaceutical companies and these vaccines aren’t safe, they aren’t effective and they aren’t free,” Rettler said. “You know that you’re paying for it through the increase in gas prices, the increase in food prices — you’re paying for this and it’s being taken from your money and being given to these pharmaceutical companies and if you want to bring race into this: It’s the Jews.”

If you think for a second that this anti-CRT hysteria is even going to slow down, let alone reverse course, insofar as it predictably breeds rank hatred like this (not to mention both-sidesing the Holocaust, and banning books on the Holocaust, and blocking an antisemitism envoy for the crime of opposing antisemitism ...) you are out to lunch. Whatever faint concern some conservatives might have for Jews and Jewish safety won't even be a speed bump in their race to power by way of right-wing authoritarianism. To cozy up to this darkness out of blindness or short-sighted fear -- well, fortunately most Jews know better. But every group has its idiots and its fools, and I suppose we are no different.

Court Enjoins Arizona Anti-BDS Law

A federal district court has enjoined Arizona's anti-BDS law, saying that it likely violates the First Amendment.

This was the litigation I spoke to NPR about, and I remarked there that Arizona's representations in court of what the law actually did seemed far narrower than what was actually contained in the text. The judge here certainly agreed -- she flatly rejected Arizona's attempt to rewrite the law to forbid only a "total" boycott of Israel, and highlighted portions of the statutory text that swept considerably broader.

My main thesis when talking with NPR was many of these laws were passed to score ideological points and so were not drafted with particular care to ensure that they pass First Amendment scrutiny. Those chickens are now certainly coming home to roost.

One question that to me remains open is if Arizona (or another state) could prohibit a state contractor from boycotting Israel in the course of their fulfillment of the contract. The case in Arizona, for example, dealt with an attorney whose (solo practitioner) firm did pro bono work for state prisoners, but who sought to boycott certain companies implicated in settlement activities. His boycott doesn't really intersect with his work for the state, but to the extent that the Arizona law required him to certify he didn't boycott Israel even in his personal capacity in order to receive a state contract, the court here held that was an unconstitutional condition violating his First Amendment rights.

But suppose instead Arizona said "what you do on your time is your business, but you have to certify that you won't boycott Israel in your capacity as a state contractor" (e.g., he couldn't refuse to provide representation to an Israeli-American prisoner, or he couldn't refuse to use some court software program on the grounds that he objected to its manufacturer's ties with the Israeli government)? Would that be permissible? I think it is, at the very least, a much stronger case, as it is more directly tied to the government regulating its agents behavior as workers rather than as citizens. The government has a strong interest in ensuring that its contractors qua contractors, at the very least, actually do their jobs in the manner prescribed. There is a large difference between the government seeking to limit an everyday citizen's (who happens to have a federal contract) ability to boycott HP products as a means of protesting Israel, and the government seeking to limit (say) it's own procurement officer from doing the same in his capacity as a state employee.

That said, even this version wouldn't be a slam dunk: there is significant potential for ambiguity in when a given (boycotting) action is taken "in your capacity as a state contractor". For example, if our attorney doesn't buy HP products because his firm boycotts Israel, is the failure to have an HP printer a boycott taken in their capacity as a state contractor? What if he buys a new printer during the course of his contract?

My instinct is that in neither case would the action be covered -- unless part of his contract tells him to "buy a printer", then the act of purchasing one is not one taking in his capacity as a state contractor. But the First Amendment's concerns about chilling speech thrives on cases of ambiguity, so I still consider this an open question.

In any event, the Arizona law we have doesn't get us close to that scenario, because the Arizona law is not a law that was drafted carefully to try to avoid First Amendment problems but rather one that written sloppily to make a political point. And if you're a Jewish institution unhappy with the political imagery associated with having prominent anti-BDS laws struck down as trampling upon constitutionally protected freedoms, it might be worth rethinking how confident you are in either the ability or the interest of right-wing legislators and apathetic state bureaucrats to invest in drafting and implementing these laws with the sort of care and precision necessary to survive legal scrutiny.

Big(ger) Media David: NPR Goes National

The story a local NPR affiliate did on Arizona's anti-BDS law -- currently under challenge by the ACLU -- was picked up nationwide. They actually had to reinterview me for sound quality reasons (like a true professional, I did it from my hotel room in Minneapolis), and once again I actually don't hate the sound of my own voice. Judge for yourself though (I come in towards the end).

Big Media David: NPR on Arizona's anti-BDS Law

I was interviewed by NPR's Phoenix affiliate regarding the ACLU's challenge Arizona's anti-BDS law. I was positioned as the academic expert alongside the ACLU and its client challenging the law, and the AJC and Arizona Attorney General's office, defending it. Presumably, they found me either because of this column on the Israel Anti-Boycott Act or this one on the problem with trusting state bureaucrats to fight your anti-BDS battle. So I neither came out for or against the law, but rather tried to situate it inside broader controversies balancing free speech and with anti-discrimination law. The main normative point I tried to make was that when these laws are passed primarily to score an ideological point, they aren't always written or applied with the utmost care, and that poses particular dangers in the First Amendment context.

The other interesting thing I discovered while researching the case is that the Arizona AG's office does not interpret its law as covering a boycott targeting, say, HP for its alleged complicity in human rights abuses in the West Bank. Only a general boycott of all (or virtually all) Israeli products would qualify (see pp. 8-10). Whether or not that's the correct interpretation of the statute, it is a much narrower understanding of what BDS is than is typically cast either by the movement's backers or critics.

Anyway, I think it's an interesting case (and I think the NPR story was solid, all told). Most importantly, when listening to it I didn't absolutely hate the sound of my own voice, which is a rarity for me. But on that score YMMV.

When The Going Gets Tough, The Tough Get Going (Home)

Yeah, it was a rousing speech. But as with Ileana Ros-Lehtinen's retirement, I can't help observing that Jeff Flake's brave declaration that Donald Trump is an intolerable threat to the republic goes hand-in-hand with him deciding that it would be just too dang hard to actually stay in a position where he could effectively fight it (not that -- on matters of substance anyway -- he has been fighting it. Flake's backed Trump 92% of the time since inauguration).

Re-Recognizing Racism: The Case of Tucson's Mexican-American Studies Litigation

A federal court invalidated an attempt by the state of Arizona to shut down a Mexican-American Studies curriculum in Tucson high schools, concluding that it was motivated by racial animus. The opinion is here, and it is just brutal on the primary architects of the law and its enforcement: Tom Horne and John Huppenthal.

What's striking about this opinion is that it doesn't flinch from the ascription of a racist motive. The program in question improved educational outcomes and was favorably reviewed in an audit ordered by the very officials whose avowed agenda was to destroy the department. Reviewing statements and practices by the major players behind the bill, the court's opinion concludes in no uncertain terms that the reason this law was passed and applied against Tucson's Mexican-American Studies program was because of bias against Mexican-Americans.

I strongly suspect that the willingness to make that determination is impacted by our current political climate. For all the whining that conservatives have engaged in about always being called a racist every which way, for the most part when it comes to official organs of government that had pretty much fallen off the table. There was an unspoken agreement that the "racism" charge was just too, well, mean to form the basis of high-level normative discourse.

And so, even a few years ago, for a federal judge to accuse a high-ranking state official of being motivated by racism would have been virtually unthinkable.  Courts dealing with racial discrimination suits would bend over backwards to couch their judgments in ways that would not be read as simply concluding that the defendants were being bigoted. Unfair, maybe; inconsistent, perhaps; unlawful, occasionally -- but not the dreaded "r" word. It wasn't seen as plausible that someone of prominence and prestige could be so crass as to be racist.

What's different now? One change is that conservatives on the Supreme Court have diced up our constitutional protections against racial discrimination such that only conscious, intentional discrimination qualifies. So judges who made have in past years relied on face-saving alternative rationales for invalidating discriminatory policies now have no choice but to say, flat-out, "this was done because of racial bias."

But I also think there's a greater psychological willingness to draw the inference of discrimination. The rise of Donald Trump demonstrated that explicit racial animus remained a live force in American politics, one that had a significant presence even amongst "elite" and "respectable" figures. Moreover, while in past years we might have worried about the backlash of flatly declaring a significant political figure racist -- how rude! -- now the calculus has changed. For it turned out that wearing kid-gloves around the racism issue in no way dissipated White racial resentment -- no matter how delicately one tip-toes around the issue, certain White people are just aching to thunder "are you calling ME a RACIST?". And so there's really not a lot of reason to beat around the bush anymore.

My How the Pendulum Swings

A professor at Arizona State permitted his students to hold a protest on an issue of their choice as their final project. Students elect to do so. Conservative commenters view this as inappropriate. Said commenters then demanded that the university take official action against the students. Awaiting soul-searching think pieces from other conservative intellectuals about growing illiberalism in their community, how, even if one disagrees with the decision of the professor or the students, it clearly falls within the parameters of academic freedom and First Amendment protected activity, and how the way to respond to speech one dislikes is with more speech etc. etc. in 3 ... 2 ... forever ....

The thing is, conservative discourse about American academia swings, pendulum like, between "college is a cesspool of leftists indoctrination which must be stamped out" and "college is about encountering difficult ideas and if you don't like it, you hate freedom." Some people have the courage of their convictions. Most people are rather fair-weather.

The Shadow of Rule 11 Sanctions

In Arizona, the Republican attorney general has declined to appeal a district court decision striking down the state's gay marriage ban. His reason immediately jumped out at me -- he claimed there was a risk of Rule 11 sanctions (for unnecessarily delaying the conclusion of litigation), given that the 9th Circuit has already rejected identical appeals and the Supreme Court recently denied cert on the same.

This jumped out at me because I have been playing around with the idea of courts sanctioning states for defending patently unconstitutional legislation. The idea is a sort of a check against grandstanding -- it's an expressive snapback by judges against legislators who pass laws that obviously, on face, violate the Constitution.

Now, no matter what one thinks of gay marriage, that is not this case. I think gay marriage bans are unconstitutional, but not obviously so. There are perfectly reasonable, good faith arguments to the contrary. My thoughts went more along the lines of laws banning the construction of Mosques. In any event, while I agree that an appeal by Arizona would prove to be futile, I am highly doubtful that any court would have imposed sanctions on the Arizona AG for filing it. And even under the Attorney General's view, sanctions wouldn't be imposed because his legal argument was intrinsically frivolous, but because it had functionally already been resolved by the relevant courts. Is that a distinction without a difference, though? Isn't a "frivolous" argument simply one which is absolutely, positively, obviously guaranteed to lose?

The point is, regardless of whether this decision is directly on point; I've been on the eye for any indication that Rule 11 sanctions might be factor in constitutional litigation. Even if the context is different, the fact that a state Attorney General viewed such sanctions as a legitimate possibility is very interesting on its own terms.

UPDATE: "Finally, let's be serious. When was the last time the government was sanctioned for defending the constitutional validity of one of its laws?" If I do write this article, Howard Wasserman just became my epigraph.

Does that Star-Spangled Banner Yet Wave

Checking in on Sheriff Joe:

A diet of bread and water is the punishment for dozens of Arizona inmates who allegedly defaced American flags placed in their jail cells.

[...]

"These inmates have destroyed the American flag that was placed in their cells," Arpaio said. "Tearing them, writing on them, stepping on them, throwing them in the toilet, trash or wherever they feel. It's a disgrace ... this is government property that they are destroying, and we will take action against those who act this way."

The flags are part of a push for patriotism in county jail cells that includes listening to the "Star-Spangled Banner" every morning and "God Bless America" every night over the intercom system.

Piping in patriotic songs and hanging flags in a notoriously abusive prison and then punishing the inmates with bread and water when they don't show adequate appreciation. It'd be difficult to make-up a better Orwellian America mash-up.

Midweek Roundup

Going to Chicago next weekend, Minnesota next week. Lot's of good stuff on my browser, which I don't have as much to say on as I should.

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Bill Donohue of the Catholic League issues a warning: "Jews had better not make enemies of their Catholic friends, since there are so few of them." He attributed the comment to former NYC mayor Ed Koch, but Koch denies saying it.

Arizona SoS, already under fire for being birther-curious, gives the conspiracy a new spin -- Obama was born in Hawaii but lied about being born in Kenya to get into college.

Kieran Healy gives a satirical statement from UVA's Board of Visitors.

The National Review bringing aboard unrepentant racist David Yerushalmi prompts Ta-Nehisi Coates to write two great posts on "politically correct conservatism", where the most offensive thing you can say is that anyone, anywhere is a bigot -- even someone who wants to criminalize being a Muslim with a 20 year prison sentence.

Interesting study on how the triumphs and failures of male and female Olympic athletes are described by commentators.

AZ SoS Is The Latest Birther

First, birthers asked "Where's the Birth Certificate?" Then they got the birth certificate, and the conspiracy went dormant for awhile, before they realized a simple truth. Unfortunately, it was not "we're conspiratorial lunatics who held a wildly implausible belief without any evidence whatsoever." It was "well, obviously it's a fake!" Rick Perry played that card last year, a Colorado Congressmen declared he didn't think Obama was from here either, and the latest on the train is Arizona's Secretary of State Ken Bennett, who is threatening to keep Obama off the ballot unless given "proof" (apparently something other than, oh you know, the birth certificate) that Obama was in fact born in Hawaii.

Obviously this isn't actually going to go anywhere. But it is still rather incredible to behold.

A Waste of Democracy

Alejandrina Cabrera, s city council candidate in heavily-Spanish-speaking San Luis, Arizona has been removed from the ballot after a judge ruled her English ability wasn't good enough to qualify. This was in accordance with Arizona's state law establishing English as the official language.

I have to think that, particularly as applied to this case, the law has to be unconstitutional. The hook would be the Equal Protection Clause (though it is times like this when my hostility to Luther v. Borden shines brightest), but in general it is fundamentally undemocratic for the state to impose substantive barriers to keep certain types of candidates off the ballot. The whole principle of a democracy is that the people get to decide what sort of person represents them, and if the people want to elect someone whose primary language is Spanish but whose English fluency is (in the candidate's own words), about a 5 out of 10, that's their prerogative.

When you compare that to the view of the City Attorney, who said that the decision was correct because a vote for Cabrera "would have been wasted, because [voters]c could have voted for someone better prepared to be an elected official," and the fundamentally authoritarian nature of the law becomes clear. The state is preventing a candidate from running for office because -- regardless of what the voters might think -- the state thinks that other people would be a better elected official. This is, more or less, how Iran conducts its "democracy", and it remains a sham even when it makes its way to one of the fifty states.

Now, to be sure, some set of neutrally-applied procedural hurdles -- such as attaining a set number of signatures, may be okay. But notably, such laws only effect persons who by virtue of their failure have already demonstrated themselves unlikely to obtain substantial, much less majority, support. Here, by contrast, the target of the law seems to be someone who could plausibly be elected -- and the insistence on trying to force Cabrera off the ballot seems to imply that she poses a real threat to her political opponents in San Luis. Well, that's democracy -- sometimes the voters vote for someone other than you. The solution is to be more appealing to the electorate, not rig the system so your opponents can't get on the ballot.

(And we won't even get into the nauseating nature of the comments on CNN's piece. I have to remind myself that internet commenters are not a representative cross-sample of America lest I despair of this whole national project altogether).

Gabby Giffords Stepping Down

Rep. Gabby Giffords (D-AZ), still recovering from brain injuries after being shot by a deranged constituent, has announced she is stepping down as Congresswoman in order to focus on her recovery. She promises, however, that she will return to public life in the future.

Obviously, best wishes to Rep. Giffords as she continues her remarkable recovery.

AZ Sup. Ct. Reinstates Redistricting Chair

I mentioned earlier that Arizona Governor Jan Brewer (R) had threatened to impeach Colleen Mathis, the chair of the state's independent redistricting committee, nominally for relatively non-specified malfeasance, in reality because the commission produced a map that was "only" slanted 4-2 in favor of Republican safe seats over Democratic ones (with another 3 seats competitive). Well, she followed through with their threat and the Republican-controlled state senate impeached Mathis. Mathis and the commissioned then sued, and today the Arizona Supreme Court just ordered her reinstated. The order is here, with a fuller opinion to follow.

Like David Nir, I am a bit surprised by this decision -- not because I didn't think the move by the Arizona state senate was a reckless abuse of power (it was), but because I thought this could easily be considered a non-justiciable political question. The Court concluded that it was not (not being particularly knowledgeable about Arizona state law, I have no idea whether they are correct or not), and found that the letter Brewer sent to Mathis spelling out her "allegations" did not rise to the level of offenses warranting impeachment.

Technical Error Roundup

This one might be a bit more haphazard than most, as it incorporates some election night celebration. As for the title, my laptop had its hard drive replaced, and in the middle of doing so my wireless card somehow snapped. So that has to get fixed too.

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My comment to this post set of a twitter war between myself and the Republican Jewish Committee, centered around my observation that if disliking Bibi means hating Israel, then disliking Obama means hating America. Why do Republicans hate America so much, anyway?

Occupy movement inspires unions to get bolder.

Andre Berto is dropping his belt to pursue a rematch against Victor Ortiz, which may pave the way for a match between Randall Bailey (42-7, 36 KOs) and Carson Jones (32-8-2, 22 KOs) to claim the vacant belt. I like both guys, but I'm a particularly fervent Jones fan, so I approve. Bailey is average at best in all dimensions of the sport save one: concussive, brutal, devastating, one-punch power. So it should be good.

Though Blacks are far more likely to be imprisoned for it, it's White kids who actually are more likely to use drugs.

Mostly a good election night for Team Blue: Maine voters reinstated same-day voter registration, Ohio voters tossed Gov. John Kasich's (R) anti-union law, Mississippi(!) voters decisively rejected a "personhood amendment" that would declare life begins at conception, and won massive victories in most Kentucky statewide races as well as an Iowa State Senate election that preserves their control of the chamber. Also, one of the chief xenophobes in the Arizona State Senate, Senate President Russell Pearce, was successfully recalled by another (more moderate) Republican.

On the negative side, the Virginia state Senate will likely flip by an agonizingly small margin (86 votes in the pivotal race) and Mississippi approved a voter ID law (and elected a new GOP governor -- no shock there).

UPDATE: Another bit of good news: Dems have retaken the Wake County (NC) school board. That's a big deal: Wake County had been one of integration's few true success stories, and the GOP board that swept to power last cycle was looking to undo that.

AZ Governor Threatens Impeachment of Redistricting Comm. After it Refuses to Gerrymander

Shocking news out of Arizona, where Gov. Jan Brewer (R) is threatening impeachment proceedings against the state's non-partisan redistricting commission because it failed to sufficiently gerrymander the maps for Republicans. The map it released has 4 safe GOP seats, 2 safe Democratic seats, and three competitive ones -- hardly something Republicans should be bawling over.

But Arizona politics have of late taken a decided step towards the lawless, with Maricopa County sheriff Joe Arpaio leading the charge by issuing indictments of his political opponents (where "political" here includes judges trying to curb his reckless abuses of power). So far, it hasn't seemed to dampen Sheriff Joe's political popularity amongst Arizona Republicans; so why not take a page from his book by threatening to impeachment independent commissioners as a suasion mechanism?

I Can Barely Hear Myself Think Over the Yapping of these Peasants!

Today, in Arizona Free Enterprise Club v. Bennett, the Supreme Court did something rather amazing: It held that the state's nondiscriminatory promotion of speech violated the First Amendment. The law struck down Arizona's public financing system for elections, whereby candidates who elected into the system received a lump-sum payment, and then an additional 94 cents for every dollar their opponent spent above that sum, for up to three times the original amount proffered (at which point they are barred from any more spending). All candidates can choose to opt-in to the system, or they can choose not to. But several privately-funded candidates sued, saying this violated their First Amendment rights.

My first thought on reading this fact pattern was to think that this is more than just a clean loser -- it's a patently frivolous argument. Not only did the plaintiffs have the option -- which they declined -- of utilizing the public finance system, but after electing not to receive the subsidy, they face a grand total of zero penalties or restrictions on their own spending. Public financed candidates in Arizona are restricted to 3x the original grant, no matter how much their opponents spend. And that matters, since their opponents can spend as much as they want, wherever they want, however they want.

Justice Kagan's dissent gets to the nub of the matter, and demonstrates the absurdity of what passes for the majority's "analysis":

This suit, in fact, may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while bankrolling someone else's; we must then decide whether the government differentiated between these speakers on a prohibited basis—because it preferred one speaker's ideas to another's. See, e.g., id., at 577–578; Regan, 461 U. S., at 543–545. But the candidates bringing this challenge do not make that claim--because they were never denied a subsidy. Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.

Indeed, what petitioners demand is essentially a right to quash others' speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing—and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech--even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges.

The only "burden" (or "restriction", or "limit", or whichever equally ludicrous synonym you prefer -- and the majority offers many) on the privately-financed candidate's speech is that their opponents are given the (limited) capacity to talk back. As Chief Justice Roberts observes, "All else being equal, an advertisement supporting the election of a candidate that goes without a response is often more effective than an advertisement that is directly controverted." Which, yes, I suppose that's true. But it's also a inordinately creepy way of conceptualizing a free speech "burden". As Justice Kagan observes, "the very notion that additional speech constitutes a 'burden' is odd and unsettling."

Scott Lemieux says that this case has to be in the conversation for any top ten list of "worst Roberts Court" decision, and I'm inclined to agree. I'm someone who is actually somewhat on the fence on "money as speech" campaign finance questions generally, but even I think this decision is obviously, almost laughably, incorrect.

Justice Brandeis once cast the First Amendment debate as between "more speech and enforced silence". Today's opinion might be the first in Supreme Court history to so proudly wave the banner of the latter.