Saturday, October 31, 2020

Clowns To The Left Of Me, Jokers To The Right

First, the clowns behind this lawsuit are the same clowns who sued the city of Houston to force the Texas GOP convention to be held in person in the midst of a raging pandemic in town at the time. Second: Orin Kerr is right, and Mark Joseph Stern never fails to go straight up and sideways whenever anything happens. He's as consistently wrong in his analysis as the clowns suing to knock out 100,000 votes in Harris County.  If his shadow was a lawuit he'd read about somewhere, he'd be constantly terrified of it.

Third: Sarah Davis understands the harm this done to the integrity of the system, and to GOP votes.  There's no rule that said only Democratic voters could use drive through voting.  These clowns are shooting themselves in the foot, especially in local races where 100,000 votes may well determine who wins and who loses.

Fourth:  voter turnout in Harris County by Friday was nearly 2 million voters.  In that amount, 100,000 is a rounding error, at least on the Presidential level.  No, the ballots should not be thrown out.  But no, it won't make any difference, either.  Probably hurt GOP voters as much as Democratic voters.  And even if the federal judge decides to toss those votes, it will undoubtedly be suspended by the 5th circuit (too close to the election; even the ultra-conservatice 5th Circuit has made that ruling in ballot challenges in the past few weeks) and those votes will not be tossed summarily.  Nor should they be; but again, even if they are thrown out later (on the bizarre Kavanaugh-Rehnquist-8th Circuit notion that even the state can't agree to allow changes to election law, only the legislature can, or some other voter-suppression theory), it's 100,000 votes, in Harris County.  If the margin for Biden isn't far greater than that in this county alone, I'll eat my hat.

Big Mo

 Texas early voter turnout ended Friday with 57.3% of registered voters casting ballots.  The turnout through election day in 2016 was 59.4% of registered voters.  Those percentages are misleading, however, as there were 15.1 million registered voters in Texas in 2016, and there are 16.9 million registered voters in 2020.  That's not just due to population increase or demographics; that's due to active voter registration efforts in the past two years.  The total number of votes cast through Friday is 9.7 million.  The total number of votes cast in 2016 was 8.9 million.  One-quarter of the total vote in 2016 was cast on election day.  If the same number of votes cast on Election Day in 2016 are cast on Election Day 2020, the total for 2020 will exceed both the number of ballots cast and the percentage of voters who voted in 2016.  Even a slight rise to 60% of registered voters would be a record for the 21st century and the past 30 years.

There's a reason the GOP strategy around the country is to challenge ballots.  They know they lose, the more people vote.

Never Too Late, I Guess

You Say You Want A Revolution

 I’m concerned about any post-election violence. But to be honest, I’m concerned about Covid-19 more. Besides: rebellion? From the same guys who plotted to kidnap a governor and never got past the talking stage?

Sure, some cranks might hit the streets somewhere in America , but “rebellion”? How many people poured into the streets this year after George Floyd’s death? Was that a rebellion? No, because few of them were armed, right? What about Charlottesville? Rebellion? Nah. Handfuls of cranks with guns demanding one state or another re-open? Was that even dangerous?

Yes, Trump’s white male supporters will be upset their dreams of hegemony have been dashed, but they’ll stay as dangerous as they have ever been. Besides, they’ll be busy:

No, I’m not kidding. How’re they gonna riot when Trump is telling them to come worship him? I honestly think his narcissism could, this time, be a good thing.

Oh Noes!

Do you mean the vote tally might change over the course of the night? And we might be confused about who the new President is before midnight in California? How will the republic ever survive?!?!?!?!?!?!???? (Which raises a whole new issue?  Will Trump demand the outcome be determined by midnight EST?) People will be rioting outside TV stations, demanding to know "Who won? WHO WON???!!???" Yeah, yeah, everybody knows the problem with the future is, it hasn't happened yet.

Friday, October 30, 2020

And Now A Word From Our Sponsor

 I am releasing, in quick succession, three (at least!) posts I've written about election and vote counting and when and how and in what form, and all the myriad concerns we've all had or that have been generated regarding the election ending on November 3rd.  I really think the most laudable part of this (so far) is the voters taking the process back from the politicians and the pundits and the pooh-bahs who think they own it and that elections only happen on one day in November quadrenially, and all other voting activities, especially quadrennial early voting, is so cute and charming and matters not a bean because the TeeVee can't gather people and sets and graphics and holograms (I'm not letting CNN forget that) and broadcast for 8+ hours how many predictions they are making (did they learn NOTHING in 2000?).

November 3 is going to be interesting, because exit polls won't mean shit and Texas is leading (still) in early vote turnout but we don't register by party in Texas so who knows what the turnout means until the ballots are counted and even AP can't do that (not yet, anyway).  I'm seeing this, but I don't know what it's based on or what it means, since we don't elect President's by a national popular vote count (more's the pity).

Anyway, the early voting turnout has finally stoppered the pundits who think they can predict the future and returned control of the nation to We, the People.  Whether we're smart enough to cut that cord or release it and find it reeling back to them like an automatic winder, is also yet to be determined.  No one knows what the future is, which is how it should be.  That's how we get in this mess in the first place:  confident our future couldn't include Donald Trump as POTUS, too many of us lapsed into complacency.  Four years later, we're acting to correct that mistake.  Will we lapse into complacency again?  Probably, but hopefully not any time soon.

The posts below this one are all on pretty much the same topic, and all probably pretty much say the same thing.  Not quite a theme and variations (I'm not that clever), but I had to toss them out of the nest.  Whether they fly or plummet to the ground is no longer my concern.

Turning the (Voting) Machines Back On

a) He's getting a little ahead of himself: there is no Bush v. Gore type case pending before the Supreme Court.

b) Or he's talking about the recent decision to allow post-election day ballots to be counted in Michigan.

c)  Our man on their side, redux.  If Trump gets an election fraud case to the Supreme Court, this tweet alone could be grounds to arguing the Court shouldn't touch it because any result they render would seriously damage the reputation of the Court (which is all they have, and they know it.  Bush v. Gore, despite multiple opinions being written for it, was per curiam, and expliclty declared not to be precedential, which made that stinkpot even worse, IMHLO.  The Court knows how thin the ice is in these cases, and they don't want to fall through it.  That water is VERY cold.)
And again, every state has its own laws on when ballots can be received after Election Day (if at all), and no court is going to void those because Trump tweets "FRAUD!" One other thing, while we're talking about votes and elections: It tells me that, if the GOP is hoist on its own petar, the solution is to repeal voter ID laws and as many vote suppression measures as possible, and pass laws/amend state constitutions to make voting was easy as possible. The people obviously want it that way, but we shouldn't be complacent if our efforts bring victory in November. The fight isn't over on Tuesday, it just enters Round Two.

(And has anyone considered the impact not just of covid but computers on this election.  How many people are voting by mail so they have a paper record?  It's the only way to get one in Harris County, and while the number of mail in ballots is hardly the majority of the votes cast, one does wonder.  Because, OTOH, Minnesota has received over 1.5 million ballots in the mail.  There's probably not one single reason for such a record, but creating a paper trail could well be one of them.)

Something Is Working

I haven't finished reading the article yet, but in all the fear-mongering on Twitter and elsewhere about voter suppression (which is nonetheless real, but call it what it is on the internet), people are turning out in droves to vote.  The local NPR call-in show yesterday discussed voting how-to's in Harris County, and they were swamped with people determined to make sure their ballot was counted, if they had to drive it downtown and place it in the hands of an employee of the County Clerk's office themselves. I've literally never heard so many people so publicly determined to vote.  Last night bands were playing at some all-night locations for people to drive up and vote, or drive up and drop off a ballot, or come in and vote or drop off a ballot here in Houston.

Around the country people are setting records for voter turnout.  Told their vote will be tossed aside or "lost" or rejected, voters seem determined to make sure that isn't so.  They aren't afraid, they aren't cowed, they aren't despairing.  They are voting.  It's almost as if they understand the worst thing that can happen is a close election, or one where ever vote that could have counted was never even cast.  Some people in the public eye say they have PTSD from 2016.  I think the whole country does.

More Texans have voted now than in 2016, but the percentage of voters in 2016 is still higher because the population has grown in four years, and nearly 2 million more voters were registered here in the last two years (see O'Rourke, Beto, elsewhere on this blog).  We will still probably match, if not exceed, the 2016 percentage, but it's raw totals that count, not percentage of available votes.

The Path From Here

Charlie Cook’s argument is pretty much the one I’ve been making. The only difference is his analysis of the polling information. Otherwise he understands what I do: you can’t contest an election in court that isn’t close. Even an SC bench that includes ACB, Kavanaugh, Thomas and Alito won’t overturn an election just because Trump loses. And the Court can’t overturn an election where the outcome doesn’t rest on one state. Cook’s argument is that Biden will get the states Clinton won in 2016, giving him 232 electoral votes. Texas alone would give Biden 270 votes in that scenario. There really isn’t a path for Trump, and without that path, he has no path to the courts either.

Noted en passant

If it wasn't for Aaron Rupar getting in the occassional twitter spat with Glenn Greenwald, I wouldn't know the latter was still alive.  I'm sure there are people dedicated to the "investigative journalism" of The Intercept (all journalism should be investigative.  I can't bring myself to call the people who hang out in the White House Press Room waiting for the Press Secretary to drop food in their open beaks....oh, sorry...).   I'm just not one of them, but why should what I like rule the world?

I just find it funny that the new standard of freedom of speech and free exchange of ideas so often turns into personal narratives and stories alleging temper tantrums.  All news is gossip, as Thoreau opined, and its the gossip that makes itself heard as "news" far too easily these days.  Still, what you gonna do about it?

My personal opinion of Greenwald is that, rather like Jonathan Turley, he seemed reasonable back when he was defending Clinton (or Obama, I guess, in the former's case) until it turned out all either was doing was attacking their critics.  Rather like The Lincoln Project or William Kristol today.  Hell, even George Will sounds statesmanlike because he recognizes the failings and dangers of Trump.  What I most remember about Greenwald was when he assured all who would listen that he would be arrested by the Obama Administration upon his return to America to claim some prize which I've already forgotten about (and his whole cozying up to Snowden doesn't look all that clever or noble anymore, especially since Snowden is still a guest of Putin, and even Ecuador finally got tired of Julian Assange, who would like to be a guest of Putin, I'm guessing), and it:  didn't happen.  Turned out Mr. Greenwald wasn't worth the effort it would take to prosecute him for publishing Snowden's revelations.  He wanted to be a First Amendment martyr, to lay his body on the line for a noble principle.  And he didn't get the chance to do it.

I think he felt like Trump did after the Washington Correspondent's Dinner.  In fact, that may explain why he's a Trump sympathizer.  His former employer says he's a Trump enthusiast.  I wouldn't know.  I don't read "The Intercept."

I guess I'm just glad to know Greenwald is still alive.  He's certainly still irrelevant.  Then again, so am I.
ADDENDUM: It seems Charlie Pierce agrees with me; one way or the other.

I Suppose It's An Improvement

...on treating 1000 deaths in a day as a "rounding error." 

I guess I had to start there, huh? Still waiting for the "Don Jr. was joking! It was a joke!" excuse/explanation. POTUS does stand up; bombs. But wait! Let's put it in context! No, that doesn't help. Maybe more context: I'm really just setting you up for the "right" context: So it's:

a) the sabotage is coming from inside the White House! (very appropriate to the season!); or

b) the White House officials still there are even dumber than POTUS; which explains why they are still there.

I'm goin' with b).  Just because:

Miles To Go Before He Sleeps

“According to two individuals with knowledge of the matter, the president has been counseled by some senior aides that he should avoid picking up the phone and telling Barr directly that the Justice Department needs to open a new investigation into the Bidens prior to the election, arguing that if such a call leaked, it would cause more political headaches than it’s worth,” the publication writes.

Or not: 

In Bugs Bunny cartoons there'd be a little devil sitting on Trump's shoulder right now urging him to do it. The cartoon characters always follow that devil's advice. Trump is a cartoon character. 

And he has several rallies to go before November 3.  QED.

Vote Early, If You Still Haven't. But Please Calm Down.

And yes, by now you should drop off your ballot, not mail it, wherever you are.

Trump will challenge "late arriving ballots," but there are challenges, and then there are challenges.

If you take Kavanaugh's "radical" position, ballots are not "late" if state law says they can still be counted. They will, of course, be counted according to the law of the state in which they are received.  But then there's all the military ballots from overseas.

Who wants to be first to invalidate those?  And this is not an electoral college issue:  this is ballots, period.  Invalidate those, and lots of people on the ballots lose votes.  Not many politicians who want to back that strategy.

But that's if Trump raises a legal challenge.  What if he just complains on Twitter?  What then?

Well, odds are he's a lame duck at that point.  He can pry all the "B's" off the White House keyboards, for all the good tweets will do him.  Not much else he can do.  Lame ducks are not king-makers.  They are not party power bosses.  They got nothin'.  They're losers.  Period.  GOP office holders may want to continue to praise him, so they can stay in good with that mythical base of power he supposedly has; but how do you do that with a guy with no public office and who just lost the biggest prize in American politics?  How do they continue to court Trump's base when that's what cost them the White House and probably the Senate?

Trump is not going to "weaponize" anything after November 3.  Not even his Twitter account.

How Long, O Lord?

Again: no.

However, Pennsylvania’s governor is a Democrat who would veto any effort to circumvent existing state election law. Supreme Court precedent makes clear that Republican-dominated legislatures cannot legally bypass their own governors to change the rules governing federal elections, as two of the authors of this column and a colleague recently demonstrated. If Pennsylvania or any other state wants to change its voting laws, it must do so in the normal way, not by having the legislature go rogue. If Biden wins more votes in Pennsylvania, Governor Tom Wolf would certify the Biden electors to the Electoral College.

What if the Republican majority in the Pennsylvania legislature purported to designate the Trump electors anyway? There would then be two competing slates of electors from Pennsylvania: the governor’s slate based on Biden’s popular-vote win in the Keystone State; and the rogue state legislature’s slate based on its unlawful endorsement of Trump’s contrived claims of voter fraud. What then?

A federal statute, the Electoral Count Act, specifies that Congress settles disputes over electors, but that would lead to a stalemate, as the Republican-dominated Senate and the Democratic-dominated House would likely disagree on which Pennsylvania slate to recognize (unless, of course, the Democrats win back control of the Senate in this year’s elections, given that all of this would be determined by the Congress that is sworn in on January 3, 2021). The Electoral Count Act addresses this contingency as well. It says unequivocally that “the votes of the electors whose appointment shall have been certified by the executive of the State” are the ones that count. Thus, a partisan dispute arising out of competing slates of electors from Pennsylvania—or Michigan, Wisconsin, or North Carolina, which also have Democratic governors—would be resolved in favor of the Democratic governor’s choice. Biden wins.

Team Trump cannot be expected to give up, however. Perhaps they would next claim that the Electoral Count Act is unconstitutional in specifying a procedure that has details going beyond what appears in Article II or the Twelfth Amendment. Making this claim would be the height of hypocrisy, of course, because the Supreme Court relied on Florida’s supposed wish to comply with the Electoral Count Act as the basis for its December 2000 ruling to stop the counting of ballots in the Sunshine State and hand the presidency to Republican George W. Bush. But as we have seen in the GOP rush to fill the Supreme Court vacancy created by Justice Ruth Bader Ginsburg’s death, hypocrisy is the party’s brand.

Accordingly, we can expect the Trump team to argue that with Pennsylvania’s ballots in dispute, the presidential selection falls to the House of Representatives. And even though Democrats hold a clear majority in the House, the Twelfth Amendment specifies that in resolving presidential contests, each state delegation gets only one vote; so absent a shift due to the coming election—a shift that Speaker Pelosi and the Democrats are working hard to achieve but obviously cannot guarantee—Republicans would have the edge.
And as long as we're wildly speculating, we come back to this map: Which is as sound a piece of speculation as any.  Let's say Trump picks up Pennsylvania through this gambit.  But Biden carries Texas, which means he has a net gain over the number in that speculation, of 18 electoral votes.  Biden wins.  In fact, Biden has to lose every battleground state on that map AND Pennsylvania, to make Trump win.  And unless that can happen, there's no point in the Pennsylvania legislature monkeying with the electoral college slate.*  Nor is it feasible that the legislatures of Wisconsin, North Carolina, and Michigan would suddenly decide to follow Pennsylvania's example and select electors pledged to Trump despite the outcome of the popular vote in their states.  A)  would they really be so loyal to Trump they'd slit their own political throats?  B) all four of these states have Democratic governors who would veto these changes, and even if the vetos are overriden in all four states, you still have to clear the plain language of the Electoral Count Act.  C) if the vote in each state is overwhelmingly for Biden, does anybody see this happening?  In one state, much less all four?  The very legitimacy of the governing system, from the statehouse to the White House, would be imperiled?  For Trump?

Don't make me laugh.

Oh, and if the Supremes get involved and get behind Kavanaugh (well, if 5 of them do, at least) and decide the legislature is supreme because of Art. II, and the Electoral Count Act is therefore to be set aside on this occasion, there's still the 12th Amendment to get around:

But Republicans cannot have their cake and eat it too. They cannot plausibly argue that the Twelfth Amendment’s silences override the Electoral Count Act while ignoring the Amendment’s plain language. If neither slate of Pennsylvania’s electors is recognized, Biden’s 268 votes would fall short of a majority of the 538 total Electoral votes theoretically available. However, the Twelfth Amendment does not say anything about those votes. Instead, it says that “[t]he person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed” (emphasis added).

We have italicized that last word—appointed—to emphasize that the Constitution does not say that a candidate must win a majority of the potential number of theoretically eligible electors who might have been appointed. He or she must win only a majority of the electors who were actually appointed. In the scenario in which the Electoral Count Act is set aside so that Pennsylvania’s votes do not count, its 20 votes are subtracted from both the numerator and the denominator. Now Biden’s (assumed) 268 votes would be a majority of the 518 votes cast by the “whole number of electors appointed.” Biden would win in the Electoral College, meaning that the decision would not go to the House.

The Supreme Court can't get involved in the election to the extent of choosing one slate of electors over another (just as they didn't choose the outcome of the recount in Florida in 2000; they merely stopped it, which had the same effect, but didn't involve the Court in actually declaring the outcome).  A challenge to the electors from PA, if two slates were sent to the electoral college, would end with neither slate being appointed.

Exhausting, isn't it?  "Nightmare scenarios" like this are why people are voting in record numbers.  The near-fanatical support for Trump is going to evaporate as the vote counts tally up.

*Yes, per the New Yorker article, the Florida legislature contemplated passing a law declaring a slate of electors loyal to Bush the ones to go to the electoral college.  But the whole race turned on the outcome in Florida.  Change the facts, change the outcome.  And politicians can count:  unless Trump picks up every battleground state on that map AND the electoral college comes down to one state willing to upend the entire electoral process for the sake of Donald Trump (how many Senators or Representatives are going to cheer that on?), especially if the vote is not close?

The Problem Is Not Twitter

I was the subject of very nasty and injurious gossip once.  It cost me my job as a pastor.  No big deal; it actually happens all the time.  People talk about their pastor.  Some people complain about their pastor, whoever that pastor is.  Some complain no matter what, some complain because the pastor is not their "choice."  I've seen people do both:  defend a pastor they favored, slander a pastor they never liked.  And some, as I say, never like the pastor, period.

Anyway, that kind of gossip makes its way around a congregation, and it can reach a tipping point where it turns rancid and the pastor's tenure there is over.  It happened to me, and although it ended more than 20 years ago, my ego still wants to point out that church never called another pastor after that who stayed as long as I had (three years), or another full-time pastor, and now they have merged with another congregation just to keep the church name alive (it's been in Houston before there was a "Houston").  The church imploded, IOW; it wasn't me (or just me, let's be fair and honest).

That kind of gossip spread like fire and it didn't need an algorithm or Twitter to make it happen.  In fact, in those days "Social media" was largely confined to fora like "Table Talk" at Salon.  There wasn't any, in other words.  I ended my pastorate there in 2001; Facebook wouldn't even get started until 2004.  Mark Zuckerberg was still in high school when I left, IOW.  Not that any of my parishioners would have used the internet, or even known what it was.  We did it the old fashioned way:  the telephone, and personal visits.  I'm sure you could have applied an algorithm to it to explain the phenomenon in mathematical terms; but why bother?  Tongues wag, exaggerations and speculation become lies, and pretty soon it's a prairie fire.  I could tell you stories about the lies told about me....

I won't, mostly because:  how do you know I'm not lying about the lies told about me?  And it was over 20  years ago, let it go. I bring it up to say that everything old is new again; that there is indeed nothing new under the sun.  The rumors about Chris Pratt on Twitter are precisely that:  rumors.  Are they damaging to Chris Pratt?  I have no idea.  I don't even care about them.  They are the fact I hang my observation on:  Twitter is not an advance, nor a decline, in Western civilization.  It's just the newest version of the telephone.  Party-line phones (where multiple parties shared a common phone line; common in rural areas where running a phone line was expensive, and no one person could bear that cost.  Ask your grandpa, punks!) became a comic trope where they were always busy with gossips sharing the latest "news" on everybody else in town.  Before telephones, it was the "back fence."  Again, the trope was wives hanging out the laundry (I remember doing that.  No one does it today because the air is too foul.  Laundered clothes are dirtier coming off the line than when they went in the wash.) who would talk over the fence to their neighbors, usually about their neighbors (you think they're gonna talk politics?).

It amuses me to see algorithms and "trending" cues blamed for gossip.  Without those, no one would use social media as much as they do.  It makes it easier to connect with people who want to talk about what we want to talk about.  And what we want to talk about, mostly, is other people.

Whether we know what we're talking about, or not.  Same as it ever was.  There was a passage from Paul's second letter to the Corinthians, 4:18, in the original Greek, inscribed above a door at one of the dorms at my seminary.  Loosely translated it read "the things unseen are forever."  Given how much gossip that building produced, we all knew what Paul meant, and it had nothing to do with divine matters.  It was the much more earthly one of what people who knew other people told still other people about those people they both knew.  And especially the things presumably going on behind closed doors; the things unseen.  Gossip kept those things, speculated upon and unknown, alive forever.

Vanity of vanities.

And I Think He's Speaking English, But....

Trump interpretation still runs in journalistic circles. I don't necessarily disagree with Ms. Haberman's "explanation," but if I got this sentence in a freshman comp essay I wouldn't interpret in the way that best served the student, "however totally imprecisely" I might think they were putting their idea. I'd tell them it was gibberish and "this close to English," but that it made no sense and that is wasn't incumbent on me to make sense of what makes no sense at all.

Or is just completely and totally incorrect.


But if Trump is LOSING at midnight, November 3rd:

"That's Right, You're Not From Texas!"

I’ve seen a lot of articles about Texas and voter turnout, and they are all still frustratingly and annoyingly from far above and far away.  I read one this morning that noted that Beto O'Rourke ran in 2018, but he spent $80 million and lost, so, you know....Texas.  Texas is a monolith in American politics.  A stereotype of sage brush and oil wells, still.  And a one-party state, still.  An ATM for politicians, nothing more.  and Beto is not a player; he lost.  He's a loser.  Losers disappear.

It's the view from the coasts, and Texas is the biggest single state in flyover country.

Let me explain Texas political history, briefly, from the ground.  Texas was a one-party state since Reconstruction, and that party was the Democrats.*  Yes, Texas was conservative,* but conservative in East Texas didn't mean the same thing as it did in Central Texas.  Or North Texas, West Texas, South Texas, the Coastal Bend, the Trans-Pecos.  Are you getting the point?  Texas is regional, and there are several regions.  I didn't even mention the Panhandle or the Valley.  Texas is conservative, except every border county in Texas went for Clinton in 2016.  Every one.  The urban counties went for Clinton, too.  57% of registered voters in Texas are in the urban counties.  
Over 9,000,000 votes have been cast in Texas as of October 29. 1.3 million of those votes, or over 14%, have been cast in Harris County. Contrary to popular perception outside of Texas, Harris County is so blue it makes Travis County (Austin) look purple.  Now, why are so many people voting in such numbers so early?

Beto O'Rourke.  Missing in all the analysis of Texas turnout is that Beto O'Rourke has been running a grassroots campaign for two years to register voters across Texas, and to mobilize voters to vote.  What you are seeing in Texas is the result of his efforts, and the efforts of thousands of volunteers working with him, and donors giving him and them the money to do it.  I started off talking about Texas' political history.  Yes, Texas was a one-party state, and that party was the Democratic party.  LBJ was a Democrat.  He took his lessons in politics from FDR, and from life lessons in Central Texas.  The LCRA and Pedernales Cooperative were projects LBJ helped set up.  There are hospitals in Johnson City still serving the public because LBJ knew people needed basics like healthcare.  He championed education across the country, because he was a teacher in Texas.  Democrats in Texas were conservative.  But they also knew to take care of each other.  Conservative politics eventually dominated Texas, and most voters (who don't register by party) felt they didn't leave the Democratic party, it left them.  So Texas became a one-party state, but now that party was the Republicans.

And frankly, after Ann Richards, Democrats in Texas didn't know what to do with themselves.  They had Molly Ivins and Jim Hightower, but Ms. Ivins was not a politician and Jim Hightower was never the charismatic figure he thought he would be.  The energy simply ebbed out of a party which had taken its dominance for granted after a century-plus of being in the only real game in any town in the state.  Republicans began to run politicians who claimed they had better ideas and could do better, and the Democrats had literally nothing to offer, and no idea how to recruit people who could offer anything.  Texas governors were literally a joke for most of my lifetime.  The job was a sinecure, a gold watch, handed out to party hacks.  Bill Clements finally broke that chain, and Ann Richards was the first, and last, charismatic Governor the Democrats ever ran since I was born.  And she only lasted one term.

Then came Beto, and people began to be interested in Democrats again.  Yes, he lost, partly because so few believed he could win, or even believed their own eyes, that there was an alternative to Ted Cruz and Dan Patrick and the arch-right wing of the Texas GOP.  And Beto figured out one thing:  Texas is a low turnout state, not a deep red Republican state.  If he could mobilize the voters especially in the urban counties, Texas could elect Democrats statewide, not just in isolated pockets or districts carved out to give Democrats something to win.  Now everyone outside Texas says what's happening can't happen because:  Texas.  And they can't figure out why it's happening so they say:  Trump.  Well, it is Trump.  People who didn't vote in 2016 now realize their vote does count, because look what happened when they shrugged and said "He can't win, I don't need to bother."  And Trump has run relentlessly on how "rigged" the election will be, proving the bedrock act of citizens in a democratic republic is to vote.  And Beto O'Rourke has galvanized people to bother, to act, to go or mail or do whatever it takes to vote.  There's a reason Harris County kept 8 polling places open starting Thursday morning, and won't close them until early voting ends in Texas today at 7 p.m. CDT. There's a reason Harris County has set records for voter turnout in Texas, and why Texas is leading the country, still, in early votes cast. And that reason is turnout; and the reason for that turnout is the people.  Not ads, not the internet, not even the disaster that is Donald Trump.  If there is one single person responsible for that turnout, he is Beto O'Rourke.

But, of course, to know that, you'd have to come to Texas.  Much easier to see this through the lens of BosWash or El "A".  Much easier to get it wrong and assume a narrative that suits pundits in Atlanta or New York City.  Much easier to believe there is a one-size narrative that fits all, and anything that doesn't fit that narrative is irrelevant and invisible.  This may be the year Texas breaks that narrative.  It will be interesting to see how much energy is expended into repairing the narrative and "proving" Texas didn't really break it after all, but just affirmed it.  Interesting, and a little disturbing.

What will be even more interesting is if Texas denies Donald Trump their 38 electoral votes, and in doing so denies him another four years of disaster and dysfunction in the White House.  Texas often feels it is far away from Washington and either coast; this year, it may prove it's just as important as California or New York State.

"That's right, you're not from Texas.  But Texas wants you anyway!"
*Democratic because of Reconstruction, which was far more brutal and damaging than it should have been.  The real tragedy of Lincoln's death was not the brutality of the murder (Jackie Kennedy and Mary Lincoln have that much in common; they both saw their husband's brains get blown out as they sat next to them), it was the failure of the nation to be healed thanks to Andrew Johnson.  And as for conservative, the Texas Constitution was a direct and almost total product of Populism, which gave it great strengths and great weaknesses, and when oil replaced railroads as a source of money (= power), all the ideals it was meant to enshrine were blithely ignored.  History is always far more complicated than what you remember from your lifetime.

“Monsters From The Id”

El Paso County has announced a shut down of non-essential business and a stay-home order for 2 weeks because COVID cases have tripled in the county.

The Texas AG says the order violates Abbott’s executive order and is illegal. Hospitals in El Paso are over capacity. But according to Paxton and Abbott, there’s nothing they can do about it.

I am disgusted with the GOP from bottom to top. They are responsible for every COVID-19 death in this country.
On a related note, Donald Trump, Jr. is not fit to live among people. Then again, the acorn doesn’t fall far from the tree. And that makes the principle of exclusion commutative.

Thursday, October 29, 2020

The Times They (May Be) A-Changin'....

There was a guy on the local NPR call-in show today who claimed he'd never gotten his absentee ballot, which he requested having recently moved from Houston to Chicago.  So he flew down to Houston just so he could cast a provisional ballot (it will count if his mail ballot is never received).  And a college student in Houston who never got her absentee ballot from Fort Worth (Tarrant County).  So she's driving back home this weekend to be able to vote.  There were lots of stories of people determined to cast their ballots despite concerns about the mail and where to find the 24 hour polling places tonight (only place outside Vegas to offer it!!!!  Or so the County Clerk's representative said.)

I have never seen such enthusiasm and interest and determination to cast a ballot.  I thought I'd see it after the 26th Amendment was passed.  But 18 year olds didn't flood the polls, hippies turned into yuppies, and everybody thought, within four years of Nixon's last term (Ford was a caretaker), that Reagan would be peachy-keen as POTUS!  And there our troubles began anew.

So I'm feeling optimistic.  It's been almost 50 years, I'm entitled to get my hopes up a bit.  Something sure as f*ck is going on, even if I agree with the retired pastor NPR interviewed this evening, who hopes we don't get complacent.

I hope that, too.  I'm optimistic, but I'm not stupid.  However, turnout in Texas is now at 51%, and early voting doesn't end until tomorrow at 7.  Then there's election day itself.  Total turnout in 2016 was 59.4%.  We will probably eclipse that before Tuesday.  Wonder if it will exceed 75%?  We'll see.

Beto and Donald Trump

The two people most responsible for the state of the electorate in Texas today. "Something’s happening here...”
“The moment that John Cornyn turned against Donald Trump and came out and distanced himself from Trump, something he had not done in four years, it’s like a canary in the coal mine,” Heilemann said. “Like an electrocuted eagle in the coal mine, howling, and that’s John Cornyn saying, ‘I could lose this race,’ and a world where Cornyn can lose in Texas is a world where you could have a plausible conversation about the Democratic landslide, 1980s-style landslide in the Senate and a giant win for Joe Biden. I think everyone understands that Texas is fully in play.”

“They’re in the closing days genuine battleground states and, again, Texas Republicans all the way up to Cornyn freaking out over the kind of early vote numbers we have seen, and over the possibility that this could be the election that Texas goes blue,” he added. 

And it's not happening just in Texas:

Is That All He’s Got?

Somebody ask John Cornyn how many of his donors are corporations. And how many of those corporations are based in Texas. And does their money coming from “outside Texas” bother him at all?

The Handwriting On The Wall

According to this map, Trump doesn’t have a path to victory.  Period.  He could win all the tossup states, and still lose.

Docket Call

Kavanaugh's argument is not carrying the day. If it does, it will block the Court from deciding in Trump’s favor where the states followed their statutes or the rulings of the Court. Although any complaint that states counted votes that came in “late” should be rejected would have to show those states violated their statutes or a court order.  Besides, what's the hurry?

Which really leaves you wondering what legal leg Trump will have to stand on.  (And what if they call the race on Tuesday night for Biden?  Does Trump cry "Fraud!" because they called it too early?  Yeah, he's gonna scream like a stuck pig whatever happens, unless he wins.  Screaming and actually raising a legitimate challenge, though, are two different things.)

I ❤️ NY

The Incredible Shrinking Candidate

Because of course...

“Invoke P!”

Except he didn’t, of course. The deaths and damage of every American afflicted by this disease are on his head. He goes down in history as responsible.

Yeah, I’m Worried...

...about Trump complaining impotently when he loses the election.

His lame-duck tweets are gonna be fierce!

"Hope Is Not A Plan"

And really, he's gonna need a stronger basis than "That's the way I want it!" to make that happen.

"But 'Sordello,' and my 'Sordello'?"

I actually got this from Raw Story, but a tweet is easier to use than a picture (what does a picture of legal interpretation look like?), and this is the only tweet I could find.  Anyway, some of it sort of set me off writing, and there we are.  Or rather, here we go:

 This is the idea that US Supreme Court justices should interpret federal law and the US Constitution “as written,” not as they might wish they were written. It’s a lie. First, “interpret” does not mean “see what you want to see.” It means “interpret” areas of law that, as written, are unclear. Second, and more importantly, the Constitution is not a simple document. It’s as full of contradictions as America is. It is also a document that’s been rewritten over the course of our history. When someone says “interpret as written,” does that mean in 1789, when slavery was OK, or 1865, when it was abolished? Once you see the lie, you wonder why the Republicans keep telling it.

Frankly, this barely scratches the surface of what's wrong with "originalism."  First, there are rules for interpretation in the law.  There are rules for statutory interpretation, and rules for Constitutional interpretation, and even rules for common law interpretation.  These rules are meant to keep interpretations similar enough to ensure justice is done, not just "I'm the judge and that's why!"  To say these rules are being violated with impunity by ideologues on the bench is to belabor the obvious.  But "interpretation" in law does not mean "'interpret areas of law that...are unclear."  Strictly speaking, the application of the law (statutory, Constitutional, common law) to any set of circumstances is "unclear" because the slightest change in circumstance ("change the facts, change the outcome") can mean the prior interpretation of the law as applied to a similar (but not the same!) set of facts, is not applicable.  That is the whole basis of the common law:  that general principles (rules of law) always apply, but how they apply to render justice, depends on the facts under consideration.  Change the facts, change the outcome.  So interpretation of the law always rests on interpretation of the facts.  Brown v. Board, for instance, interpreted the situation of "separate but equal" and found it, despite Plessy and other cases, to no longer be in keeping with the Constitution.  How these interpretations are grounded is of vital importance.  Roe v. Wade rests on the guarantee of due process in the Constitution (5th and 14th amendments, which were written under such differing circumstances that any "original intent" is absolutely inexplicable and impossible to deduce).  Ruth Bader Ginsburg argued, outside any court opinion (so far as I know), that Roe should have been based instead on the guarantee of equal protection of the laws (also a fundamental Constitutional provision and interpretation).  Ginsburg's argument arises from her experience as a woman, and her legal knowledge and acumen.  But her experience is crucial here.  Roe v. Wade was decided before there were any women justices on the high court.  It did not occur to the men to see (i.e., "interpret") the situation before them (the inability of Roe to be able to decide for herself whether to remain pregnant) as a question of equal protection of the laws.  That argument, in fact, was one of the key legal insights RBG brought to the law and to Constitutional interpretation.  It is a very solid legal argument, especially as "equal protection" is a fundamental argument of non-ideological jurists (I exclude almost the entire Roberts court by that designation; it's intentional), one that is, in a non-legal metaphor, elemental.  It is so foundational, in other words, it cannot be broken into those who are protected, and those who aren't (well, not anymore.  It once worked that way, obviously; even after the immediate passage of the 14th Amendment).  These kinds of "elemental" (i.e., not reducible further into components of law) interpretations are what "originalists" call "settled" law.  Except, of course, they aren't really settled, to the true ideologues (like ACB, who thinks Scalia was a bit squishy in his originalism, which is why she calls herself a "textualist.")  So the fundamental problem with originalism/textualism is that it tosses out the rules of interpretation, and replaces them with the ideology of the judge in the case.

That's one problem, anyway.  And I'm nutshelling it because this isn't a law review article, and my knowledge of these interpretive rules has atrophied from disuse in the decades since law school (legal practice has a lot to do with facts and precious little, really, to do with statutory interpretation, at least on this level.).  The other problem has to do with "textualism" as a concept.  That one brings in my training in literary analysis and interpretation.

The rules here are largely developed in argument.  In a sense, there are no rules; but rather like conspiracy theories, which create their own set of rules and are opaque to non-participants, the rules of literary interpretation depend on which approach you choose to take to a text.  That can lead you off to deconstructionism and structuralism and new historical criticism and colonial-culture criticism, etc., etc., etc.  I don't mean to go there, but rather with a plain insight from post-modernism, which is so simple and direct it should be a commonplace:  you can't possibly know what the author meant and determine through intepretation that meaning of a text.  You can't even presume the author is in control of her text, and can determine the interpretation.  There are only clouds of interpretation, and the one with the prevailing argument at the moment, wins.

Take the infamous cases on race:  Plessy and Dred Scott.  Had the Warren Court been ruling in the late 19th century, the Court's authority would have been shattered and disaster would have prevailed in Constitutional law and interpretation (it does now, as a result of Brown v. Board and a number of other Warren Court rulings Mitch McConnell and others fervently hope they will see reversed).  In the post-war 19th century, it would have been worse.  Does that make Plessy and Dred Scott correct interpretations of the law?  Of course not.  But even the laws of Moses (which some incorrectly label the "laws of God") were reinterpreted and reapplied after the Exile.  That's why the Torah has Leviticus and Deuteronomy.  The law was not supposed to be fundamentally changed: but which is the "original"?  And there is a whole set of commentary on the Hebrew Scriptures, called midrash.  It is nothing but arguments about how to interpret scriptures, line by line.  What does it mean not to "work" on the Sabbath?  Some modern interpretations say it means not turning on a light switch.  We gentiles may think such distinctions bizarre in the extreme, but I've been involved in arguments in church about how to decorate the worship space at Christmas, right down to who gets to touch and place what.  And the argument there is much, much weaker than honoring the word of God.  The argument there was always "We've always done it this way!" Which argument is more bizarre?

Originalism presumes there is a "meaning" in a text which was established by the authors of that text (and worse, by many authors who all had a common agreement, rather than reached a consensus rather than toss out the baby and the bathwater, even if the meaning they saw in the final text was no stronger or better than bathwater) and that meaning can be discerned.  How, is the pertinent question.  I can't discern what T.S. Eliot meant by "It is impossible to say just what I mean!," though I can tell you what I think it means, because "Between the Idea and the reality/Falls the Shadow."  Originalism admits no such shadow; but human experience, and the law (which is built primarily on human experience) does.  And that's why there are laws for statutory interpretation, or Constitutional interpretation, or common law interpretation.  And why there is no good argument for Originalism as a method of Constitutional interpretation.  But it has bugger all with the words being unclear (although the Second Amendment is as poorly constructed a sentence as I've ever come across), and everything do with their application being either unclear in a situation, or undesirable in a culture that has made the gun a holy icon (that's another discussion).

The Republicans are not “pro-gun.” They are pro-intimidation. They are pro-anarchy. They are pro-vigilante justice. While the Second Amendment is (arguably) about the right to self-defense—as written, it’s about militias and national defense—it does not in any way, shape or form empower one class of people over and at the expense of another class. As it is, Republican jurists have repeatedly seen what they want to see so that the desire for peace and security is second fiddle to the desire for unlimited firepower. It’s no coincidence the Republicans went gun-nuts after the election of the first Black president. Democracy is no longer a means to power. It is now an obstacle.

I'm not going to argue that point, because I agree with it.  I only pause to point out there have been a number of stories of shootings in and around Houston lately.  One involved a man who shot his own son when he opened the door to their apartment, and then he killed a police officer and wounded another.  Why?  He feared being deported back to Mexico.  A young woman was shot to death in a truck with her boyfriend, by her ex-boyfriend, who was mad at her.  There have been several such shootings lately, and I keep wondering where the "good guy with a gun" was, especially when two people are shooting at each other, and bystanders are the only ones wounded or killed.  And I keep thinking how hard it would be for these people to have been killed if we hadn't re-interpeted (very recently, and I don't mean the Scalia penned Heller decision) the Second Amendment as a literal license to kill (well, a license to bear arms, or just buy them freely and easily, is the same thing, even if the killing is punishable by law).

This is the idea that “life” is so precious abortion must be outlawed. In fact, “the sanctity of life” is conditional. It doesn’t apply to capital punishment. It doesn’t apply to the sick, hungry and poor. It doesn’t apply to the 550-some kids taken from their immigrant mothers. And, most importantly, it does not apply to “the unborn” when it’s politically inconvenient. Anti-abortionist get mad when “fetal tissue”—actually, stem cells—is used in science. But they were OK when “fetal tissue” saved Donald Trump. Set aside all these conditions, however, and “the sanctity of life” is totally meaningful.

Let's just go ahead and hook that one up to this one:

This is another one of those principles that’s always true to Republicans except when it’s not. States have the right to control their destinies when the federal government is trying to force states to treat non-white human beings as human beings entitled to the blessings of citizenship. But those rights are conditional when it comes time to cut taxes for the obscenely rich and pay for it by stealing from states that did not support a Republican president. Republican justices, meanwhile, always stand for states rights—unless they dampen the fun of undercutting Democratic voters. In 2000, they ordered Florida to stop counting Florida’s votes. A recent ruling has the makings of a repeat. 

Both rest on the same invalid argument because, like originalism/textualism, it's an argument of convenience.  Nobody knows what state's rights actually are, or what life is sacred, but they know it when they see it, and it's usually white and well-off.  Black lives don't matter, no matter their economic status, and all poor people are effectively invisible and to be written off.  I will take exception to that last sentence, though, because Bush v. Gore turned on the question of how Florida conducted its recount.  The Court found that Florida had different standards for counting the votes (or re-counting) for different parts of the state, due in part (IIRC) to the use of different kinds of ballots in different areas (the famous "butterfly ballots" and the "hanging chads".  Those were not universal across the state.).  This led to the issue of how to handle these facts and insure a fair recount. An issue of Constitutional law, in other words, or more precisely the equal protection of the laws.  If different standards applied to different areas of Florida, what would a fair recount look like?  Would a vote in Miama be as protected and validated as a vote in Tallahassee?  The Court found it could not be, and that the law required a count by a date certain, which Florida couldn't meet.  Some argued the Constitutional infirmity had to take precedence over even the statute, and a remedy allowed (a recount based on a fair system of assessing votes, not different systems for different areas).  That argument did not prevail.  Was the Court intent on "undercutting Democratic voters"?  Or was it intent on seeing the laws equally applied to the protection of all interests?

It's a matter of interpretation, isn't it?