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Tag: constitutional right

  • Lawsuits against ICE agents would be allowed under proposed California law

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    A week after a Minnesota woman was fatally shot by a federal immigration officer, California legislators moved forward a bill that would make it easier for people to sue federal agents if they believe their constitutional rights were violated.

    A Senate committee passed Senate Bill 747 by Sen. Scott Wiener (D-San Francisco), which would provide Californians with a stronger ability to take legal action against federal law enforcement agents over excessive use of force, unlawful home searches, interfering with a right to protest and other violations.

    California law already allows such suits against state and local law enforcement officials.

    Successful civil suits against federal officers over constitutional rights are less common.

    Wiener, appearing before Tuesday’s Senate Judiciary Committee hearing, said his bill has taken on new urgency in the wake of the death of Renee Nicole Good in Minnesota, the 37-year-old mother of three who was shot while driving on a snowy Minneapolis street.

    Good was shot by an agent in self-defense, said Department of Homeland Security Secretary Kristi Noem, who alleged that Good tried to use her car as a weapon to run over the immigration officer.

    Good’s death outraged Democratic leaders across the country, who accuse federal officers of flouting laws in their efforts to deport thousands of undocumented immigrants. In New York, legislators are proposing legislation similar to the one proposed by Wiener that would allow state-level civil actions against federal officers.

    George Retes Jr., a U.S. citizen and Army veteran who was kept in federal custody for three days in July, described his ordeal at Tuesday’s committee hearing, and how immigration officers swarmed him during a raid in Camarillo.

    Retes, a contracted security guard at the farm that was raided, said he was brought to Port Hueneme Naval Base. Officials swabbed his cheek to obtain DNA, and then moved him to Metropolitan Detention Center in Los Angeles. He was not allowed to make a phone call or see an attorney, he said.

    “I did not resist, I did not impede or assault any agent,” Retes said.”What happened to me that day was not a misunderstanding. It was a violation of the Constitution by the very people sworn to uphold it.”

    He also accused Department of Homeland security spokesperson Tricia McLaughlin of spreading false information about him to justify his detention. DHS said in a statement last year that Retes impeded their operation, which he denies.

    Retes has filed a tort claim against the U.S. government, a process that is rarely successful, said his attorney, Anya Bidwell.

    Lawsuits can also be brought through the Bivens doctrine, which refers to the 1971 Supreme Court ruling Bivens vs. Six Unknown Federal Agents that established that federal officials can be sued for monetary damages for constitutional violations. But in recent decades, the Supreme Court has repeatedly restricted the ability to sue under Bivens.

    Wiener’s bill, if passed by the legislature and signed by Gov. Gavin Newsom, would be retroactive to March 2025.

    “We’ve had enough of this terror campaign in our communities by ICE,” said Wiener at a news conference before the hearing. “We need the rule of law and we need accountability.”

    Weiner is running for the congressional seat held by former House Speaker Rep. Nancy Pelosi (D-San Francisco).

    Representatives for law enforcement agencies appeared at Tuesday’s hearing to ask for amendments to ensure that the bill wouldn’t lead to weakened protections for state and local officials.

    “We’re not opposed to the intent of the bill. We’re just concerned about the future and the unintended consequences for your California employees,” said David Mastagni, speaking on behalf of the Peace Officers Research Assn. of California, which represents more than 85,000 public safety members.

    Wiener’s bill is the latest effort by the state Legislature to challenge President Trump’s immigration raids. Newsom last year signed legislation authored by Wiener that prohibits law enforcement officials, including federal immigration agents, from wearing masks, with some exceptions.

    The U.S. Department of Justice sued last year to block the law, and a hearing in the case is scheduled for Wednesday.

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    Dakota Smith

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  • California labor leader charged over blocking ICE agents sees felony cut to misdemeanor

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    Federal authorities are now pursuing a misdemeanor charge against David Huerta, president of Service Employees International Union California, who was arrested during the first day of a series of immigration raids that swept the region.

    Prosecutors originally brought a felony charge of conspiracy to impede an officer against Huerta, accusing him of obstructing federal authorities from serving a search warrant at a Los Angeles workplace and arresting dozens of undocumented immigrants on June 6.

    On Friday, court filings show federal prosecutors filed a lesser charge against Huerta of “obstruction resistance or opposition of a federal officer,” which carries a punishment of up to a year in federal prison. The felony he was charged with previously could have put him behind bars for up to six years.

    The U.S. attorney’s office in Los Angeles declined to comment.

    In a statement, Huerta’s attorneys, Abbe David Lowell and Marilyn Bednarski, said they would “seek the speediest trial to vindicate David.” The lawyers said that “in the four months that have passed since David’s arrest, it has become even clearer there were no grounds for charging him and certainly none for the way he was treated.”

    “It’s clear that David Huerta is being singled out not for anything he did but for who he is — a life-long workers’ advocate who has been an outspoken critic of its immigration policies. These charges are a clear attempt to silence a leading voice who dared to challenge a cruel, politically driven campaign of fear,” the statement read.

    The labor union previously stated that Huerta was detained “while exercising his First Amendment right to observe and document law enforcement activity.” Huerta is one of more than 60 people charged federally in the Central District of California tied to immigration protests and enforcement actions.

    Two recent misdemeanor trials against protesters charged with assaulting a federal officer both ended in acquittals. Some protesters have taken plea deals.

    In a statement Friday, Huerta said he is “being targeted for exercising my constitutional rights for standing up against an administration that has declared open war on working families, immigrants, and basic human dignity.”

    “The baseless charges brought against me are not just about me, they are meant to intimidate anyone who dares to speak out, organize, or demand justice. I will not be silenced,” he said.

    Huerta was held at the Metropolitan Detention Center in downtown Los Angeles for days, prompting thousands of union members, activists and supporters to rally for his release. California Democratic Sens. Adam Schiff and Alex Padilla also sent a letter to the Homeland Security and Justice departments demanding a review of Huerta’s arrest.

    A judge ordered Huerta released in June on a $50,000 bond.

    The case against Huerta centers on a June 6 workplace immigration raid at Ambiance Apparel. According to the original criminal complaint filed, Huerta arrived at the site around noon Friday, joining several other protesters.

    Huerta and other protesters “appeared to be communicating with each other in a concerted effort to disrupt the law enforcement operations,” a federal agent wrote in the complaint.

    The agent wrote that Huerta was yelling at and taunting officers and later sat cross-legged in front of a vehicle gate to the location where law enforcement authorities were serving a search warrant.

    Huerta also “at various times stood up and paced in front of the gate, effectively preventing law enforcement vehicles from entering or exiting the premises through the gate to execute the search warrant,” the agent wrote in the affidavit.

    The agent wrote that they told Huerta that if he kept blocking the Ambiance gate, he would be arrested.

    According to the complaint, as a white law enforcement van tried to get through the gate, Huerta stood in its path.

    Because Huerta “was being uncooperative, the officer put his hands on HUERTA in an attempt to move him out of the path of the vehicle.”

    “I saw HUERTA push back, and in response, the officer pushed HUERTA to the ground,” the agent wrote. “The officer and I then handcuffed HUERTA and arrested him.”

    According to a statement from SEIU-United Service Workers West, SEIU California State Council, and the Service Employees International Union, “Huerta was thrown to the ground, tackled, pepper sprayed, and detained by federal agents while exercising his constitutional rights at an ICE raid in Los Angeles.” Video of his arrest went viral.

    “Despite David’s harsh treatment at the hands of law enforcement, he is now facing an unjust charge,” the statement read. “This administration has turned the military against our own people, terrorizing entire communities, and even detaining U.S. citizens who are exercising their constitutional rights to speak out.”

    Acting U.S. Atty. Bill Essayli, posted a photo on the social media site X of Huerta, hands behind his back, after the arrest.

    “Let me be clear: I don’t care who you are — if you impede federal agents, you will be arrested and prosecuted,” Essayli wrote. “No one has the right to assault, obstruct, or interfere with federal authorities carrying out their duties.”

    In an interview with Sacramento TV news oulet KCRA last month, Essayli referred to Huerta as Gov. Gavin Newsom’s “buddy” and said he “deliberately obstructed a search warrant.”

    While speaking with reporters in June, Schiff said Huerta was “exercising his lawful right to be present and observe these immigration raids.”

    “It’s obviously a very traumatic thing, and now that it looks like the Justice Department wants to try and make an example out of him, it’s all the more traumatic,” Schiff said. “But this is part of the Trump playbook. They selectively use the Justice Department to go after their adversaries. It’s what they do.”

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    Brittny Mejia

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  • Judge grants Wonderful’s request to halt UFW effort to unionize company’s workers

    Judge grants Wonderful’s request to halt UFW effort to unionize company’s workers

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    After more than a month of deliberation, a Kern County Superior Court judge has sided with Wonderful Co. and issued a preliminary injunction that will temporarily halt a contentious bargaining process between the agricultural giant and the state’s largest farmworker union.

    In a ruling issued Thursday, Judge Bernard C. Barmann said Wonderful “was likely to prevail” in its legal challenge to the state’s relatively new system for organizing farmworkers and faced irreparable harm if the United Farm Workers is allowed to unionize the company’s nursery workers before the case is decided.

    “The court finds that the public interest weighs in favor of preliminary injunctive relief given the constitutional rights at stake in this matter,” Barmann wrote in the 21-page decision. Wonderful “has met its burden that a preliminary injunction should issue until the matter may be heard fully on the merits.”

    Wonderful, the $6-billion agricultural powerhouse owned by Stewart and Lynda Resnick, sued the state Agricultural Labor Relations Board in May, challenging the constitutionality of the state’s so-called card-check system, which Gov. Gavin Newsom signed into law in 2022. Under its provisions, a union can organize farmworkers by inviting them to sign authorization cards at off-site meetings, without notifying an employer, rather than voting by secret ballot at a designated polling place.

    Union organizers had pressed for the revised card-check law, contending the secret ballot process left workers fearful of retaliation from their employer.

    But Wonderful, whose portfolio includes such well-known brands as FIJI Water and POM Wonderful, alleges in its lawsuit that the law deprives employers of due process on multiple fronts. Among them: forcing a company to enter a collective bargaining agreement even if it has formally appealed the ALRB’s certification of a union vote and presented what it believes is evidence that the voting process was fraudulent.

    The temporary injunction marks the latest twist in a tumultuous dispute over the UFW’s unionization campaign at Wonderful Nurseries in Wasco, the nation’s largest grapevine nursery.

    In late February, the UFW filed a petition with the labor relations board, asserting that a majority of the 600-plus farmworkers at the nursery had signed authorization cards and asking that the UFW be certified as their union representative.

    Within days, Wonderful accused the UFW of having baited farmworkers into signing the authorization cards under the guise of helping them apply for $600 in federal relief for farmworkers who labored during the pandemic. And the company submitted nearly 150 signed declarations from nursery workers saying they had not understood that by signing the cards they were voting to unionize.

    The UFW countered that Wonderful had intimidated workers into making false statements and had brought in a labor consultant with a reputation as a union buster to manipulate their emotions in the weeks that followed.

    The ALRB acknowledged receiving the worker declarations from Wonderful; nonetheless, the regional director of the labor board moved forward three days later to certify the union’s petition. She has said in subsequent hearings that she felt she had to move quickly under the timeline laid out in the card-check law, and that at the time she did not think the statute authorized her to investigate allegations of misconduct.

    Wonderful appealed the ALRB’s certification.

    Under the provisions of the card-check law, the UFW’s efforts to bargain with the company on behalf of its nursery workers moved forward, even as Wonderful’s appeal of the certification works its way through the ALRB’s administrative hearing process. The ALRB issued a ruling last week ordering Wonderful to enter into a mandatory mediation process to establish a collective bargaining agreement.

    In its lawsuit, filed in May, Wonderful challenges the constitutionality of the card-check system on multiple fronts. Among them: that the company’s due process rights were violated when the labor board moved to certify the UFW’s petition before investigating the company’s allegations that the vote was fraudulent; and more broadly that the card-check system does not have adequate safeguards in place to ensure the veracity of the voting process.

    The company asked the judge to halt the unionization effort at its nursery, as well as the ALRB’s administrative hearing process, while the lawsuit moved forward in Kern County court.

    In a statement released Thursday evening, Rob Yraceburu, president of Wonderful Nurseries, said the company was “gratified” by the court’s decision to pause the certification process until the constitutionality of the card check law can be “fully and properly considered.”

    “In addition,” Yraceburu said, “farmworkers had been wrongly barred from objecting to a union being forced on them, and this ruling states that Wonderful indeed has the standing to fight to ensure those constitutional rights of farmworkers, including their due process and First Amendment rights, are not violated.”

    UFW spokesperson Elizabeth Strater countered that the ruling “ignores 89 years of labor law precedent” and indicated the decision to grant the injunction would be appealed.

    “There is already a process to address wrongdoing in elections and Wonderful was in the middle of that process. Why does Wonderful want to halt that process and silence workers so their voices are not heard?” Strater said. “It’s very clear Wonderful is determined to use its considerable resources to deny farmworkers their rights.”

    In a May 30 filing, the state had urged the court to deny Wonderful’s request for an injunction. California Atty. Gen. Rob Bonta, arguing on behalf of the ALRB, said Wonderful had failed to demonstrate that the card-check law was causing “irreparable harm or any likelihood of deprivation of its rights.” Bonta also argued that the Superior Court lacked jurisdiction in the case.

    Santiago Avila-Gomez, executive secretary with the ALRB, said Thursday evening the agency is “reviewing the ruling carefully and won’t have further comment at this time.”

    The UFW, meanwhile, is pursuing its own legal action against Wonderful. The union has filed a formal complaint of unfair labor practices with the ALRB, accusing Wonderful of coercing workers into attending “captive audience” meetings to urge employees to reject UFW representation. ALRB General Counsel Julia Montgomery issued a complaint in April, similar to an indictment, alleging Wonderful committed unfair labor practices by unlawfully assisting them in drafting declarations to revoke their authorization cards.

    The company has largely denied the allegations.

    This article is part of The Times’ equity reporting initiative, funded by the James Irvine Foundation, exploring the challenges facing low-income workers and the efforts being made to address California’s economic divide.

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    Melissa Gomez, Rebecca Plevin

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  • If we must rely on ‘history and tradition’ to assess gun laws, does racist history count?

    If we must rely on ‘history and tradition’ to assess gun laws, does racist history count?

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    As attorneys for the state of California prepared recently to defend in federal court a state law requiring background checks for ammunition purchases, they found themselves in an awkward position.

    Under a U.S. Supreme Court ruling from 2022, gun control measures are legitimate only if they are deeply rooted in American “history and tradition” or are sufficiently similar to some other centuries-old law. The state lawyers had conducted a deep dive through hundreds of years of American jurisprudence and identified dozens of historical laws that they felt bolstered the modern law’s legitimacy by showing that the government has long limited access to firearms and ammunition.

    But there was a problem: Many of the historical laws they found were virulently racist, restricting access to weaponry for enslaved people, Indigenous Americans and other racial minorities.

    In the end, the attorneys in California Atty. Gen. Rob Bonta’s office decided to push ahead and cite the laws, but with a major caveat.

    Nikki Shrieves, 41, right, during a firearms education course in Norwalk in October 2023. She and her classmates are holding unloaded 9-millimeter Glocks.

    (Francine Orr / Los Angeles Times)

    “The Attorney General in no way condones laws that target certain groups on the basis of race, gender, nationality, or other protected characteristic,” they wrote in a footnote to their 2023 filing, “but these laws are part of the history of the Second Amendment and may be relevant to determining the traditions that define its scope, even if they are inconsistent with other constitutional guarantees.”

    Last week, U.S. District Judge Roger T. Benitez rebuked the state for relying on such racist laws in a decision that tossed out California’s ammunition background check law as unconstitutional. Benitez rejected the notion that they might represent a legal tradition to be considered under the high court’s new history standard in New York State Rifle & Pistol Assn. vs. Bruen.

    “These fifty laws identified by the Attorney General constitute a long, embarrassing, disgusting, insidious, reprehensible list of examples of government tyranny towards our own people,” Benitez wrote — and such “repugnant historical examples of prejudice and bigotry will not be used to justify the State’s current infringement on the constitutional rights of citizens.”

    On Monday, a three-judge panel of the U.S. 9th Circuit Court of Appeals halted Benitez’s decision from taking effect — keeping the ammunition laws in place — while the state appeals.

    In the meantime, the question of whether California and litigants in other gun cases nationwide can invoke old, racist laws remains unsettled, and it’s unclear whether the Supreme Court will allow such laws to inform the “history and tradition” standard moving forward.

    In a nation built on chattel slavery and the brutal colonization of Indigenous communities, racist laws are an inescapable part of our legal tradition despite efforts at reform. And that reality is now front and center in cases challenging gun control measures across the country — to the discomfort of nearly everyone involved.

    “If we look at ‘history and tradition,’” said Adam Winkler, a UCLA law professor who focuses on 2nd Amendment law, “we see a whole bunch of racist gun laws.”

    Liberal states such as California and other advocates for gun control are in a quandary. They don’t want to focus attention on old, racist laws that are anathema to their modern commitments to diversity, equality and justice. But doing so may be their last, best chance at upholding background checks and other gun control measures.

    Conservative jurists and gun rights advocates have strongly backed the Supreme Court’s originalist view of 2nd Amendment law, which gives modern deference to the intentions of the nation’s founders at the ratification of the Bill of Rights in 1791. They bristle over the fact that many of the laws at the time took for granted the government’s right to place limits on at least some people’s gun rights.

    Scholars say the issue highlights the absurdity of the Supreme Court’s position that the legitimacy of any modern gun law should hinge on whether such a regulation might have fit into a centuries-old legal system — especially one so profoundly flawed in other ways. Liberals also scoff at the notion that the authors of the Bill of Rights could have envisioned modern assault rifles.

    Winkler said the debate “points out the central problem of 2nd Amendment law today: that the government has to rely on ancient laws that were designed for a very different society.”

    “One of the major concerns around gun laws then was keeping Black people powerless in the face of white supremacy,” he said. “Our gun laws today reflect modern concerns, not the concerns of yesterday.”

    Erwin Chemerinsky, dean of the UC Berkeley School of Law, said the rejection of such racist laws as historical “analogues” under the Bruen test by conservative judges such as Benitez reflects a troubling double standard. Benitez has otherwise embraced Bruen’s historical lens, including in recent decisions — also under appeal — that struck down California’s bans on assault-style weapons and large-capacity ammunition magazines.

    “Judge Benitez looks at history when it supports his position and ignores it (or dismisses it) when it doesn’t,” Chemerinsky wrote in an email to The Times.

    “It is absurd to decide what gun regulations should be allowed based on the law of 1791,” he wrote. “But if we are going to do that, we have to accept the awful aspects of the law of 1791.”

    Others say the absurdity lies in the suggestion that unconstitutional, racist laws of the past should hold any legal weight today.

    Stephen Halbrook, a conservative author who argues against broad restrictions on the 2nd Amendment, said he is “glad this is being called out” in Benitez’s latest opinion.

    “This should never have been an argument,” Halbrook said, arguing that past injustices do not justify modern ones when it comes to people’s constitutional rights.

    Some Black gun owners also expressed unease at the idea that old, racist gun laws should be revived in discussions about 2nd Amendment limits.

    Rick Archer, 57, of Yorba Linda, is a Black former U.S. Marine who now teaches basic gun safety and concealed-carry training courses in Orange County. He said he views many of California’s modern gun laws as racist, if not in their explicit language then in their origins and their enforcement in communities of color.

    As one example, he mentioned the Mulford Act, which banned the open carry of loaded weapons without a permit in California, and was rushed into law by state legislators after members of the Black Panther Party for Self Defense staged an armed protest at the state Capitol in 1967.

    Archer said his white neighbors in Yorba Linda today are “armed to the teeth,” and within their rights to be, while many Black people and other racial minorities in some of the most dangerous cities and neighborhoods in the state are precluded from defending themselves with firearms.

    Archer said the state, if it was serious about dismantling racism, would be trying to dismantle its vast system of racist gun laws — not trying to uphold them by citing even more explicitly racist laws of the past.

    “We’re supposed to be moving forward, not moving backward,” he said. “If you have to go that far back to justify putting limits on our freedoms — especially if you are going back to racist codes — then this is not the progressive, mixed state that I thought we were in.”

    Jake Charles, an associate professor at Pepperdine Caruso School of Law, has studied and written about the issue of old, racist laws being relevant — or not — under Bruen’s “history and tradition” test.

    He said he doesn’t believe modern gun laws should be upheld or tossed based on a historical test, but since such a test is required under Bruen, it should at least be honest and applied consistently — regardless of whose modern position on guns it bolsters.

    Charles noted that much of the discussion of late has centered on racist laws that excluded enslaved people and other racial minorities from possessing weapons, but there were also racist motivations for many old laws that cemented gun rights for white people. Some early Southern laws, for example, required white men to bring guns to church services as a precaution against slave revolts, he said.

    “The expansion of gun rights was often motivated by the same kind of discriminatory rationales that some of the regulations were motivated by,” he said. “They were to enforce white supremacy.”

    Charles said racist laws of centuries past should be viewed skeptically by the courts, but not dismissed wholesale. “Whether or not these laws are unconstitutional, they can tell us something about what kind of scope of government power the founding generation would have thought the legislature had” to restrict gun rights or access, he said.

    The so-called abstraction approach to gun law precedent has been applied by judges before, including in a pre-Bruen case by then-Circuit Judge Amy Coney Barrett — who is now a Supreme Court justice, Charles wrote last year in the Stanford Law Review.

    Barrett issued a dissenting opinion in the case Kanter v. Barr in which she cited old racist gun laws against enslaved people, Indigenous people and Catholics as clearly unjust, but nonetheless informative — helping to establish a clear tradition of lawmakers restricting access to firearms for people they deemed public threats.

    Barrett’s approach, Charles wrote, suggested that old racist laws “can provide hints about earlier generations’ understanding of legislative power divorced from their concrete application to specific groups.”

    Charles said the Supreme Court could provide more guidance on the issue in its forthcoming decision in United States vs. Rahimi, where it is considering the constitutionality of laws that prohibit the possession of firearms by people under domestic-violence restraining orders.

    However, the court may be limited from tackling the issue in full in the Rahimi case because the U.S. government recently shifted its strategy, dropping references to old, racist laws limiting access to firearms for enslaved people and Indigenous Americans that it had cited in lower courts when it reached the high court.

    When Justice Clarence Thomas asked why it did so during oral arguments, Solicitor General Elizabeth Prelogar said the government had decided that such laws spoke to a different issue than the one in Rahimi — in part because “those categories of people were viewed as being not among the people protected by the Second Amendment” at the time the old laws were enforced.

    In other words, enslaved and Indigenous people weren’t considered citizens — or beneficiaries of the 2nd Amendment’s protections. (Benitez cited a similar argument in his recent decision in the ammunition case.)

    Charles said the Supreme Court could weigh in further on racist old laws serving as historical analogues in another case called Range vs. Attorney General, which considers whether individuals convicted of felony crimes can be prohibited from possessing firearms.

    If it does, Charles said, he will be watching closely to see where Barrett lands — and whether she once again argues for considering old racist laws as relevant history.

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    Kevin Rector

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  • A MAGA Judiciary

    A MAGA Judiciary

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    Thanks to Donald Trump’s presidential term, the conservative legal movement has been able to realize some of its wildest dreams: overturning the constitutional right to an abortion, ending affirmative action in college admissions, and potentially making most state-level firearm restrictions presumptively unconstitutional. That movement long predates Trump, and these goals were long-standing. But, like the rest of conservatism, much of the conservative legal movement has also been remade in Trump’s vulgar, authoritarian image, and is now preparing to go further, in an endeavor to shield both Trump and the Republican Party from democratic accountability.

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    The federal judiciary has become a battleground in a right-wing culture war that aims to turn back the clock to a time when conservative mores—around gender, sexuality, race—were unchallenged and, in some respects, unchallengeable. Many of the federal judges appointed during Trump’s presidency seem to see themselves as foot soldiers in that war, which they view as a crusade to restore the original meaning of the Constitution. Yet in practice, their rulings have proved to be little more than Trump-era right-wing punditry with cherry-picked historical citations.

    The 2016 Trump administration was focused on quickly filling the judiciary with judges who are not just ideologically conservative but dedicated right-wing zealots. But that administration “didn’t have all of the chess pieces completely lined up” to get right-wing ideologues into every open seat, Jake Faleschini, of the liberal legal-advocacy group Alliance for Justice, told me. More restrained conservative jurists filled some of those seats. Trump and his allies will be better prepared next time, he said. “Those chess pieces are very well lined up now.”

    The federal district judge Matthew Kacsmaryk, a former anti-abortion activist, is the prototypical Trumpist judge. He has publicly complained about the sexual revolution, no-fault divorce, “very permissive policies on contraception,” and marriage equality, and has opposed nondiscrimination protections for the LGBTQ community. And like many of his Trump-appointed peers, Kacsmaryk has predictably issued rulings flouting precedent when doing so is consistent with his personal morals.

    One of the most egregious examples came in September, when he dismissed a lawsuit filed by students at West Texas A&M University after the school’s president, Walter Wendler, banned a drag-show benefit aimed at raising money for the Trevor Project, an LGBTQ-focused suicide-prevention organization. Wendler made clear his political objections to the show, referring to drag as “derisive, divisive and demoralizing misogyny.” But even Wendler himself recognized that the show, as expressive conduct, was protected speech; amazingly, he admitted that he was violating the law. He would not be seen to condone the behavior of the show’s actors, Wendler wrote in his message banning the event, “even when the law of the land appears to require it.”

    The case landed on Kacsmaryk’s desk. And because Kacsmaryk does not like pro-LGBTQ speech, he simply ignored decades of precedent regarding free-speech law on the grounds that, by his understanding of history, the First Amendment does not protect campus drag shows. The drag show “does not obviously convey or communicate a discernable, protectable message,” Kacsmaryk wrote, and consists of potentially “vulgar and lewd” conduct that could, he suggested, lead to “the sexual exploitation and abuse of children.” (The confidence with which conservatives have accused their political opponents of child sexual exploitation in recent years is remarkable, especially because their concern applies almost exclusively to situations, like this one, that justify legal suppression of their favored targets. It is far easier to find examples of pedophilia in religious institutions—hardly targets of either conservative ire or conservative jurisprudence—than it is to find drag queens guilty of similar conduct.)

    The key to Kacsmaryk’s ruling was “historical analysis,” which revealed a “Free Speech ecosystem drastically different from the ‘expressive conduct’ absolutism” of those challenging Wendler’s decision. Echoing the Supreme Court’s recent emphasis on “history and tradition” in rulings such as Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to an abortion, and New York State Rifle & Pistol Association, Inc. v. Bruen, which struck down gun restrictions in New York State, Kacsmaryk simply decided that the First Amendment did not apply. If not for its censorious implications, the ruling would be an amusing example of some conservative beliefs about free speech: A certain form of expression can be banned as “nonpolitical”—nothing more than obscenity—even as those banning it acknowledge their disapproval of that expression’s political implications.

    The invocation of “history and tradition,” however, is no joke. The prevailing mode of conservative constitutional analysis for the past half century has been “originalism,” which promises to interpret the Constitution as it was understood at the time of its writing. As the dissenters pointed out in Dobbs, the Founders themselves imposed no such requirements on constitutional interpretation, noting that the “Framers defined rights in general terms, to permit future evolution in their scope and meaning.” And in practice, originalism has just meant invoking the Framers to justify conservative outcomes.

    “It’s a very subjective inquiry,” the NYU law professor Melissa Murray told me. “This insistence on originalism as history and tradition ties you to a jurisprudence that’s going to favor a particular, masculine kind of ideology. Because those are the only people making meaning at that moment in time.”

    In 1986, the late conservative legal scholar Philip B. Kurland observed, “We cannot definitively read the minds of the Founders except, usually, to create a choice of several possible meanings for the necessarily recondite language that appears in much of our charter of government. Indeed, evidence of different meanings likely can be garnered for almost every disputable proposition.”

    “History should provide the perimeters within which the choice of meaning may be made,” Kurland wrote. “History ordinarily should not be expected, however, to provide specific answers to the specific problems that bedevil the Court.”

    Right-wing justices have in all but name imposed this expectation, despite Kurland’s warning. It is no surprise that Kurland was not heeded—he testified against the nomination of Robert Bork, the father of originalism, to the Supreme Court, and cautioned that “he will be an aggressive judge in conforming the Constitution to his notions of what it should be,” one “directed to a diminution of minority and individual rights.” Now, with six Republican appointees on the Supreme Court, every judge is slowly being forced to conform the Constitution to Bork’s notions of what it should be.

    In Dobbs and Bruen, and in a later case striking down race-based affirmative action in college admissions, the conservative justices cited historical facts that strengthened their arguments while ignoring those that contradicted them, even when the evidence to the contrary was voluminous. In Dobbs, Justice Samuel Alito, who wrote the majority opinion, ignored the history of legal abortion in the early American republic and the sexist animus behind the 19th-century campaigns to ban it. In Bruen, Justice Clarence Thomas was happy to invoke the history of personal gun ownership but dismissed the parallel history of firearm regulation. In the affirmative-action case, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Thomas’s imposition of modern right-wing standards of “color blindness” on the debate over the Fourteenth Amendment was ahistorical enough that it drew an objection from Eric Foner, the greatest living historian of the Reconstruction era.

    Not every right-wing judge is as blatantly ideological in their decision making as Kacsmaryk, nor is every Republican appointee a Trumpist zealot. But those with ambitions to rise up the ranks stand out by how aggressively they advertise both qualities. And the proliferation of the language of “history and tradition” is turning originalism from an ideology of constitutional interpretation into something more like a legal requirement. Judges are expected to do historical analysis—not rigorous analysis, but the kind that a prime-time Fox News host will agree with. Conservative originalists seem to see themselves as the true heirs of the Founders, and therefore when they examine the Founders, they can see only themselves, as if looking in a mirror.

    It is no coincidence that as conservatism has become Trumpism, originalism has come to resemble Trumpist nationalism in its view that conservatives are the only legitimate Americans and therefore the only ones who should be allowed to wield power. The results for the federal judiciary are apparent as right-wing appeals courts turn “fringe ideas into law at a breakneck pace,” as the legal reporter Chris Geidner has put it, in the hopes of teeing up cases for the Roberts Court, which can hide its own extremism behind the occasional refusal to cater to the most extreme demands of its movement allies.

    It is not only the substance of the rulings that has changed—many now resemble bad blog posts in their selective evidence, motivated reasoning, overt partisanship, and recitation of personal grievances—but the behavior of the jurists, who seek to turn public-service roles into minor celebrity by acting like social-media influencers.

    Fifth Circuit Judge James Ho, a favorite of the conservative legal movement and a potential future Trump Supreme Court nominee, is one example. In 2022, Ho announced that he was striking a blow against “cancel culture” by boycotting law clerks from Yale after an incident in which Yale students disrupted an event featuring an attorney from a Christian-right legal-advocacy group. In 2021, the Trump-appointed judge Barbara Lagoa complained publicly that American society had grown so “Orwellian” that “I’m not sure I can call myself a woman anymore.” She later upheld an Alabama law making gender-affirming care for minors a felony, arguing, of course, that such care was not rooted in American “history and tradition.” In June 2023, in the midst of a scandal over Justice Thomas receiving unreported gifts from right-wing billionaires with interests before the Court, the Trump-appointed judge Amul Thapar went on Fox News to promote his book about Thomas, and defended him with the zeal of a columnist for Breitbart News.

    During Joe Biden’s presidency, the appointment of far-right ideologues has meant a series of extreme rulings that have upheld speech restrictions and book bans; forced the administration to pursue the right’s preferred restrictive immigration policies; narrowed the fundamental rights of women, the LGBTQ community, and ethnic minorities; blessed law-enforcement misconduct; restricted voting rights; limited the ability of federal agencies to regulate corporations; and helped businesses exploit their workers.

    All of this and more will continue should Trump win a second term. Conservative civil servants who placed their oath to the Constitution above Trump’s attempt to overturn the 2020 election were depicted by Trump loyalists not as heroes but as internal enemies to be purged. Republican-appointed judges will take note of which path leads to professional advancement and which to early retirement.

    Already imitating Trump in affect and ideology, these judges are indeed unlikely to resist just about any of Trump’s efforts to concentrate power in himself. They will no doubt invoke “history and tradition” to justify this project, but their eyes are ultimately on a future utopia where conservative political power cannot be meaningfully challenged at the ballot box or in court.


    This article appears in the January/February 2024 print edition with the headline “A MAGA Judiciary.”

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    Adam Serwer

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  • Republicans Can’t Figure It Out

    Republicans Can’t Figure It Out

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    Democrats yesterday continued to perform better at the polls than in the polls.

    Even as many Democrats have been driven to a near panic by a succession of recent polls showing President Joe Biden’s extreme vulnerability, the party in yesterday’s elections swept almost all the most closely watched contests. Democrats won the Kentucky governorship by a comfortable margin, romped to a lopsided victory in an Ohio ballot initiative ensuring abortion rights, and easily captured an open Pennsylvania Supreme Court seat. Most impressive, Democrats held the Virginia state Senate and were projected to regain control of the Virginia state House, despite an all-out campaign from Republican Governor Glenn Youngkin to win both chambers. Among the major contests, Democrats fell short only in the governor’s race in Mississippi.

    The results extended the most striking pattern from the 2022 midterm election, when Republicans failed to match the usual gains for the party out of the White House at a time of widespread public dissatisfaction with the president. Democrats, just as they did last November, generated yesterday’s unexpectedly strong results primarily by amassing decisive margins in urban centers and the large inner suburbs around them.

    The outcomes suggested that, as in 2022, an unusually broad group of voters who believe that Democrats have not delivered for their interests voted for the party’s candidates anyway because they apparently considered the Republican alternatives a threat to their rights and values on abortion and other cultural issues.

    “The driving force of our politics since 2018 has been fear and opposition to MAGA,” the Democratic strategist Simon Rosenberg told me. “It was the driving force in 2022 and 2023, and it will be in 2024. The truth is, what we’re facing in our domestic politics is unprecedented. Voters understand it, they are voting against it, and they are fighting very hard to prevent our democracy from slipping away.”

    The surprising results yesterday could not have come at a better time for Democratic leaders. Many in the party have been driven to a near frenzy of anxiety by a succession of recent polls showing Biden trailing former President Donald Trump.

    Yesterday’s victories have hardly erased all of Biden’s challenges. For months, polls have consistently found that his approval rating remains stuck at about 40 percent, that about two-thirds of voters believe he’s too old to effectively serve as president for another term, and that far more voters express confidence in Trump’s ability to manage the economy than in Biden’s.

    But, like the 2022 results in many of the key swing states, the Democrats’ solid showing yesterday demonstrated that the party can often overcome those negative assessments by focusing voters’ attention on their doubts about the Trump-era Republican Party. “Once again, we saw that what voters say in polls can be very different than what they do when faced with the stark choice between Democrats who are fighting for a better life for families and dangerous candidates who are dead set on taking away their rights and freedoms,” Jenifer Fernandez Ancona, the chief strategy officer of Way to Win, a liberal group that focuses on electing candidates of color, told me in an email last night.

    Even more than a midterm election, these off-year elections can turn on idiosyncratic local factors. But the common thread through most of the major contests was the Democrats’ continuing strength in racially diverse, well-educated major metropolitan areas, which tend to support liberal positions on cultural issues such as abortion and LGBTQ rights. Those large population centers have trended Democratic for much of the 21st century. But that process accelerated after Trump emerged as the GOP’s leader in 2016, and has further intensified since the conservative majority on the U.S. Supreme Court overturned the constitutional right to abortion.

    Across yesterday’s key contests, Democrats maintained a grip on major population centers. In Kentucky, Democratic Governor Andy Beshear carried the counties centered on Louisville and Lexington by about 40 percentage points each over Republican Attorney General Daniel Cameron.

    In Ohio, abortion-rights supporters dominated most of the state’s largest communities. That continued the pattern from the first round of the state’s battle over abortion. In that election, as I wrote, the abortion-rights side, which opposed the change, won 14 of the state’s 17 largest counties, including several that voted for Trump in 2020.

    The results were equally emphatic in yesterday’s vote on a ballot initiative to repeal the six-week-abortion ban that the GOP-controlled state legislature passed, and Republican Governor Mike DeWine signed, in 2019. The abortion ban was buried under a mountain of votes for repeal in the state’s biggest places: An overwhelming two-thirds or more of voters backed repeal in the state’s three largest counties (which are centered on Cleveland, Columbus, and Cincinnati), and the repeal side won 17 of the 20 counties that cast the most ballots, according to the tabulations posted in The New York Times.

    Democrats held the Virginia state Senate through strong performances in suburban areas as well. Especially key were victories in which Democrats ousted a Republican incumbent in a suburban Richmond district, and took an open seat in Loudoun County, an outer suburb of Washington, D.C.

    The race for an open Pennsylvania Supreme Court seat followed similar tracks. Democrat Daniel McCaffery cruised to victory in a race that hinged on debates about abortion and voting rights. Like Democrats in other states, McCaffery amassed insuperable margins in Pennsylvania’s largest population centers: He not only posted big leads in Philadelphia and Pittsburgh, but he also built enormous advantages in each of the four large suburban counties outside Philadelphia, according to the latest vote tally.

    From a national perspective, the battle for control of the Virginia state legislature probably offered the most important signal. The Virginia race presented the same competing dynamics that are present nationally. Though Biden won the state by 10 percentage points in 2020, recent polls indicate that more voters there now disapprove than approve of his performance. And just as voters in national polls routinely say they trust Trump more than Biden on the economy and several other major issues, polls found that Virginia voters gave Republicans a double-digit advantage on economy and crime. Beyond all that, Youngkin raised enormous sums to support GOP legislative candidates and campaigned tirelessly for them.

    Yet even with all those tailwinds, Youngkin still failed to overturn the Democratic majority in the state Senate, and lost the GOP majority in the state House. The principal reason for Youngkin’s failure, analysts in both parties agree, was public resistance to his agenda on abortion. Youngkin had elevated the salience of abortion in the contest by explicitly declaring that if voters gave him unified control of both legislative chambers, the GOP would pass a 15-week ban on the procedure, with exceptions for rape, incest, and threats to the life of the mother.

    Youngkin and his advisers described that proposal as a “reasonable” compromise, and hoped it would become a model for Republicans beyond the red states that have already almost all imposed more severe restrictions. But the results made clear that most Virginia voters did not want to roll back access to abortion in the commonwealth, where it is now legal through 26 weeks of pregnancy. “What Virginia showed us is that the Glenn Youngkin playbook failed,” Mini Timmaraju, the CEO of Reproductive Freedom for All, an abortion-rights group, told me last night. “We showed that even Republican voters in Virginia weren’t buying it, didn’t go for it, saw right through it.”

    Youngkin’s inability to capture the Virginia state legislature, even with all the advantages he enjoyed, will probably make the 2024 GOP presidential contenders even more skittish about openly embracing a national ban on abortion. But Timmaraju argued that yesterday’s results showed that voters remain focused on threats to abortion rights. “Our job is to make sure that the American people don’t forget who overturned Roe v. Wade,” she told me.

    None of yesterday’s results guarantees success for Biden or Democrats in congressional races next year. It is still easier for other Democrats to overcome doubts about Biden than it will be for the president himself to do so. In particular, the widespread concern in polls that Biden is too old to serve another term is a problem uniquely personal to him. And few Democrats really want to test whether they can hold the White House in 2024 without improving Biden’s ratings for managing the economy. Trump’s base of white voters without a college degree may be more likely to turn out in a presidential than off-year election as well.

    But a clear message from the party’s performance yesterday is that, however disenchanted voters are with the country’s direction under Biden, Democrats can still win elections by running campaigns that prompt voters to consider what Republicans would do with power. “We have an opening here with the effective framing around protecting people’s freedoms,” Fernandez Ancona told me. “Now we can push forward on the economy.”

    Yesterday’s results did not sweep away all the obstacles facing Biden. But the outcome, much like most of the key contests in last fall’s midterm, show that the president still has a viable pathway to a second term through the same large metro areas that keyed this unexpectedly strong showing for Democrats.

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    Ronald Brownstein

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  • Column: Like Reagan, Schwarzenegger and Brown, Newsom uses veto pen to rein in spending by California lawmakers

    Column: Like Reagan, Schwarzenegger and Brown, Newsom uses veto pen to rein in spending by California lawmakers

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    It’s the job of a governor to play adult supervisor and not give adolescent state legislators all the spending money they’d like. Otherwise, they’d break the family bank.

    All modern California governors have performed this role, often in different ways and frequently with relish.

    Many, especially Republicans, have loved to use their “blue pencil,” striking individual spending items from the annual state budget before signing it. That’s a potent power California governors enjoy that U.S. presidents don’t even have.

    Gov. Ronald Reagan cherished the “line item veto” and often lamented not possessing the tool as president.

    Gov. Gavin Newsom, however, hardly ever picks up his blue pencil. He barely touches a spending plan before signing what he’s sent by the Democratic-controlled Legislature. That’s because he and legislative leaders already have negotiated the final version of the budget before lawmakers pass it.

    Then what Newsom does to slow spending by lawmakers is to emulate his predecessor, Gov. Jerry Brown. He vetoes lots of spending bills that legislators pass after the budget is enacted.

    It’s in legislators’ DNA to try to squeeze more dollars out of the state kitty after there’s already a spending plan in place for the year.

    “They’re always asking for more,” Brown once said. “There’s no natural limit. There’s no predator for this species of budgetary activity except the governor.”

    Lawmakers — Democrats, anyway — counter that it’s their constitutional right to keep dipping into the pot.

    “Many of my colleagues have important issues they’re trying to tackle on behalf of their constituents and they have costs,” Assemblyman Evan Low (D-Campbell) told me. “Just as the governor has the right to veto bills, it is the Legislature’s right to send him bills as part of our democratic process.”

    But Newsom’s admonition to legislators — implanted in veto messages on dozens of spending bills he recently rejected — is that if they want to tap into the state vault, they’d better follow a protocol. They need to seek approval through the annual budget process that’s supposed to end on June 30.

    Otherwise, spending veers out of control.

    This was Newsom’s basic boilerplate lecture that he tucked into spending vetoes:

    “We enacted a budget that closed a shortfall of more than $30 billion through balanced solutions that avoided deep program cuts…

    “This year, however, the Legislature sent me bills outside of this budget process that, if all enacted, would add nearly $19 billion of unaccounted costs in the budget…

    “With our state facing continuing economic risks and revenue uncertainty, it is important to remain disciplined.”

    It was a strong message. But a little humor now and then wouldn’t have hurt. Previous governors showed some occasional wit in their bill signing or veto messages.

    In inking a bill to legalize the stuffing and display of dead mountain lions, Brown wrote: “This presumably important bill earned overwhelming support by both Republicans and Democrats. If only that same energetic bipartisan spirit could be applied to creating clean energy jobs and ending tax laws that send jobs out of state.”

    Gov. Arnold Schwarzenegger used a vulgar acrostic to veto a bill by an assemblyman who had heckled the Republican governor when he crashed a Democratic fundraiser. The second line of the message began with the letter “F” and lines six through eight started with the letters “y,” “o” and “u.”

    Gov. Pete Wilson enjoyed vetoing a bill that called for a state study of how best to dispose of discarded fluorescent light tubes. “Question: How many new legislative bills does it take to study the disposal of light bulbs?” Wilson wrote. “Answer: One less than you think.”

    Newsom recently signed 890 bills and vetoed 156 — a mediocre veto rate of 15%.

    In 2008, Schwarzenegger vetoed a record 35% of the bills lawmakers sent him, calling it collateral damage for them being 85 days late passing a budget. That was when budgets required a two-thirds legislative vote. In 2011, it was lowered to a simple majority.

    That year, tightwad Brown vetoed the entire budget. He complained it added billions of dollars in new debt to already red ink spending. It’s the only time an entire spending plan has been vetoed.

    Regardless of Newsom’s tough veto message — and his restriction on when spending can be approved — he’s hardly a piker.

    In his less than five years as governor, state spending has jumped by 53% — more than $100 billion, from the $203-billion budget Brown left him to $311 billion currently.

    The governor’s office would not provide a total amount of spending that Newsom vetoed. His boilerplate language was used in 64 vetoes.

    Neither would his spokespeople elaborate on the governor’s veto messages. Was it just about saving money? Or was that sometimes merely a cover for blocking policy he disliked?.

    “Just about every bill that is on the governor’s desk has some cost to it,” says Assembly Budget Committee Chairman Philip Ting (D-San Francisco). “Most of the time the governor has a reason other than the spending [for a veto]. Sometimes he gives the budget excuse.”

    One example: He vetoed a bill requiring high schools to provide free condoms for students. Was that just because of the “unfunded mandate” he cited? Or does the father of four children also question the policy?

    Another: He vetoed a measure that would have provided unemployment insurance benefits for striking union members. He said the unemployment fund was already $20 billion in debt. But did he also think it was nuts to subsidize strikers who voluntarily walk off their jobs?

    He vetoed a lot of spending bills that amounted to pocket change. And he was right.

    Once there’s an agreed-upon budget, lawmakers shouldn’t squeeze taxpayers for more money except in a dire emergency.

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    George Skelton

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  • Red States Are Rolling Back the Rights Revolution

    Red States Are Rolling Back the Rights Revolution

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    The struggle over the sweeping red-state drive to roll back civil rights and liberties has primarily moved to the courts.

    Since 2021, Republican-controlled states have passed a swarm of laws to restrict voting rights, increase penalties for public protest, impose new restrictions on transgender youth, ban books, and limit what teachers, college professors, and employers can say about race, gender, and sexual orientation. Some states are even exploring options to potentially prosecute people who help women travel out of state to obtain an abortion.

    In the early legal skirmishing over this agenda, opponents including the federal Justice Department have won a surprising number of decisions, mostly in federal courts, blocking states from implementing the new laws.

    But eventually most of these issues are likely to be resolved by the U.S. Supreme Court, and the court’s six-member Republican-appointed majority has generally ruled in ways that favor the conservative social-policy priorities reflected in the red-state actions. That inclination was most dramatically demonstrated in last year’s Dobbs decision, when the Court overturned the constitutional right to abortion.

    In the coming years, the Court will face a series of decisions on the new red-state agenda that may determine whether the U.S. maintains a strong baseline of civil rights available in all states or reverts back toward a pre-1960s world where people’s rights varied much more depending on where they lived.

    “The idea of the Bill of Rights was that we would have a floor of civil rights and civil liberties that the states could not go below,” David Cole, the national legal director of the American Civil Liberties Union, told me. “But for that floor to be meaningful, it has to be enforced by the Supreme Court ultimately.

    “In our history, the courts have sometimes done that courageously and bravely, and other times they have fallen down on the job,” Cole continued. “And when they have fallen down on the job, you get a two-tier system in this country.”

    Since President Joe Biden’s election, the 22 states where Republicans hold unified control of the governorship and the state legislature have moved with remarkable speed to create a two-tier system on issues including abortion, classroom censorship, and the treatment of LGBTQ people. “The fact that all of this is happening on so many different fronts simultaneously is unprecedented,” Donald Kettl, a former dean and professor emeritus of the University of Maryland’s School of Public Policy, told me.

    This broad red-state push to retrench rights, as I’ve written, is reversing the general trend since the 1960s of nationalizing more rights, a process often called “the rights revolution.”

    Civil-rights advocates have limited options for reversing this tide of red-state legislation. So long as the Senate filibuster exists, Democrats have virtually no chance of passing national legislation to override the red-state actions on issues such as abortion and voting rights, even if the party regains unified control of the federal government after the 2024 elections.

    In some states, opponents can try to rescind these measures directly through ballot initiatives, like the Ohio referendum that, if passed in November, would overturn the state’s six-week abortion ban. But not all states permit such referendums, and even in those that do, ballot measures to reverse many of the key red-state restrictions would face an uncertain fate given the underlying conservative lean of their electorates.

    Opponents are challenging some of the new statutes in state courts. The Center for Reproductive Rights, a group that supports legal abortion, has cases pending in six states, including Ohio, Wyoming, Iowa, and Florida, arguing that abortion restrictions adopted since the Dobbs decision violate provisions in those states’ constitutions. But recent rulings by state supreme courts—in South Carolina, upholding the state’s six-week abortion ban, and in Texas, dismissing an injunction against the state’s ban on gender-affirming care for transgender minors—show the limitations of relying on red-state courts to undo the work of red-state political leaders.

    “Sometimes the state courts provide a sympathetic venue,” Cole said. “But oftentimes in the red states, precisely because the courts have been appointed by red-state governors and legislatures, they are not especially open to challenges to their legislature’s laws.”

    That leaves federal courts as the principal arena for those hoping to overturn the restrictive red-state laws.

    These federal cases raise a range of legal arguments. Mostly they revolve around the claim that the state laws violate the U.S. Constitution’s protection of free speech in the First Amendment and the due process and equal protection provisions of the Fourteenth Amendment. As courts consider these claims, the key early federal rulings have covered cases involving a variety of issues.

    Freedom of speech: In a striking victory for critics, a federal district judge in Florida issued two decisions blocking enforcement of Florida Governor Ron DeSantis’s signature Stop WOKE Act, which restricts how private employers and college and university professors talk about racial inequity. In one ruling, Judge Mark Walker called the law “positively dystopian.” He wrote: “The powers in charge of Florida’s public university system have declared the state has unfettered authority to muzzle its professors in the name of ‘freedom.’”  The Eleventh Circuit Court of Appeals has denied DeSantis’s request to lift Walker’s injunction against the law while the case proceeds.

    Federal courts have also blocked enforcement of the Florida law DeSantis signed increasing the penalties for public protest. But another federal judge has twice dismissed a case attempting to block DeSantis’s “Don’t Say Gay” law restricting discussion of sexual orientation and gender identity in K–12 classrooms. (Opponents of the law are appealing that decision.)

    Litigation against the multiple red-state measures making it easier for critics to ban books in school libraries has not advanced as far. But in May, PEN America, a free-speech group, together with Penguin Random House and several authors filed a suit against Florida’s Escambia County school district over the removal of titles about people of color and LGBTQ people that could become the bellwether case.

    Abortion: Though the Supreme Court’s Dobbs decision preempted any frontal federal legal challenge to the state laws restricting or banning the procedure, abortion-rights supporters continue to fight elements of the new statutes.

    In late July, a federal district judge blocked guidance from Raúl Labrador, the Republican attorney general of Idaho, a state that has banned abortion, warning doctors that they could be prosecuted for helping patients travel out of state to obtain the procedure. A separate federal lawsuit filed in July is challenging Idaho’s law imposing criminal penalties on adults who transport a minor out of state to obtain an abortion. The Justice Department won an injunction last year preventing Idaho from enforcing another portion of its abortion ban on the grounds that it violates federal law requiring treatment of people needing emergency care in hospitals.

    Dobbs overturned 50 years of precedent and got rid of the fundamental liberty right to abortion, but it definitely didn’t answer every question,” Amy Myrick, a senior staff attorney at the Center for Reproductive Rights, told me. “And federal courts are now being faced with a public-health crisis of enormous magnitude, so at some point they will have to decide whether a ban becomes irrational if it forces patients to get sick or even die based on what a state says.”

    Immigration: Another front in the red-state offensive is an increasing effort to seize control of immigration policy from the federal government. The Biden administration last week won a federal-district-court decision requiring Texas to remove a flotilla of buoys it has placed in the Rio Grande River to repel undocumented migrants (though the conservative Fifth Circuit Court of Appeals put that ruling on hold just one day later). A coalition of civil-rights groups is suing Florida in federal court over a DeSantis law making it a crime to transport an undocumented migrant in the state.

    Voting: As with abortion, critics have found a legal basis to challenge only provisions at the periphery of the voting restrictions approved in most red states since 2021. Last month, the Justice Department won a federal court ruling blocking a measure that Texas had passed making it easier for officials to reject absentee ballots. In July, a federal-district-court judge upheld key components of Georgia’s 2021 law making voting more difficult, but did partially overturn that law’s most controversial element: a ban on providing food and water to people waiting in line to vote.

    LGBTQ rights: Federal litigation has probably progressed most against the intertwined red-state moves to impose new restrictions on transgender people. The Biden Justice Department has joined cases seeking to overturn the red-state actions on each of the major issues.

    Two federal appellate courts have blocked policies requiring transgender students to use the bathroom (or locker room) of their gender assigned at birth, while the Eleventh Circuit late last year upheld such a law in Florida. Two federal circuit courts have also blocked the enforcement of laws in Idaho and West Virginia barring transgender girls from participating on female sports teams in high school, though a lower federal court has subsequently upheld the West Virginia law.

    Of all the issues affecting transgender people, litigation against the statutes passed in 22 Republican-controlled states barring gender-affirming care for minor children, even with their parents’ approval, may reach the Supreme Court first. In a flurry of decisions made mostly this summer, multiple federal district courts have issued injunctions blocking the implementation of such laws in several states. One federal appellate court has upheld such an injunction, but two others recently overturned lower-court rulings and allowed Tennessee and Alabama to put their laws into effect. (After those decisions, a federal district court last week also allowed Georgia to enforce its ban.) Such a split among circuit courts could encourage the Supreme Court to step in, as do the momentous and timely stakes for families facing choices about medical care. “For families who have adolescents who need this care, some of whom have been receiving this care, it’s a matter of family urgency,” Jennifer Pizer, the chief legal officer at Lambda Legal, a group that advocates for LGBTQ rights, told me.

    Although liberal groups and the Biden administration have been heartened by many of these early rulings, they recognize that the most significant legal fights are all rolling toward the same foreboding terminus: the Supreme Court.

    Over recent years, the Court has restricted the ability of blue states to impinge on rights that conservatives prize while mostly allowing red states to constrain rights that liberals prioritize. The Court has displayed the former instinct in its rulings striking down gun-control laws in blue jurisdictions, allowing religious-freedom exemptions to state civil-rights statutes, and barring public universities from using affirmative action. Conversely, the Court has loosened restrictions on red states with the Dobbs decision and the 2013 Shelby County ruling effectively revoking the Justice Department’s authority to preemptively block changes in state voting laws.

    Those who see this past as prologue believe that the current Supreme Court majority may provide the red states great leeway to establish a legal regime that defines rights much more narrowly than in the rest of the country. At various points in American history, the Supreme Court has certainly done that before, most notoriously in the 1896 Plessy v. Ferguson case, when the justices approved the system of “separate but equal” Jim Crow segregation across the South that persisted for nearly the next 70 years.

    But several legal experts I spoke with said it was premature to assume that these recent rulings ensure that the Supreme Court will reflexively uphold the contemporary wave of red-state measures. Erwin Chemerinsky, the dean of UC Berkeley’s law school, told me that the Court’s decisions in recent years have advanced “what’s been the conservative Republican agenda for decades: Overrule Roe v. Wade; eliminate affirmative action; protect gun rights.” It’s less clear, Chemerinsky believes, what the Court will do with this “new conservative agenda” rising from the red states. Although the six Republican-appointed justices are clearly sympathetic to conservative goals, he said, “some of what the [states] are doing is so radical, I don’t know that the Supreme Court will go along.”

    The ACLU’s Cole notes that the Court appeared to move more cautiously in the term that ended in June than it did in the 2021–22 session, which concluded with the cannon shot overruling Roe. With a few prominent exceptions headlined by the decision banning affirmative action in higher education, “civil rights and civil liberties did pretty well in the Supreme Court this term,” Cole maintained. “Much is still to be determined, but I think this term showed us that you can’t just assume that this Court is going to impose right-wing results regardless of precedent.”

    Conservatives remain confident that this Supreme Court majority will not reject many of these new red-state laws. They see an early signal of how some of these fights may play out in the August decision by the Eleventh Circuit Court of Appeals allowing Alabama to enforce its law banning gender-affirming care for minors.

    Written by Barbara Lagoa, who was appointed by Donald Trump, that ruling specifically cited the Supreme Court’s logic in the Dobbs case to argue that Alabama’s ban on gender-affirming care for minors would likely survive legal scrutiny. In Dobbs, the majority opinion written by Justice Samuel Alito said the Fourteenth Amendment did not encompass the right to abortion because there was no evidence that such a right was “deeply rooted” in American history. Likewise, Lagoa wrote of gender-affirming care that “the use of these medications in general—let alone for children—almost certainly is not ‘deeply rooted’ in our nation’s history and tradition.”

    Sarah Parshall Perry, a senior legal fellow at the conservative Heritage Foundation’s Edwin Meese Center for Legal and Judicial Studies, predicted that such logic would ultimately persuade the conservative Supreme Court majority. “What we are seeing now is the use of the Dobbs framework in actual action,” she told me. “I think the Supreme Court quite frankly is going to be very wary of expanding Fourteenth Amendment jurisprudence to rubber-stamp an experimental new treatment, especially when minor children are involved.”

    The one point both sides can agree on is that the Supreme Court’s rulings on the red-state measures will represent a crossroads for the country. One path preserves the broadly consistent floor of civil rights across state lines that Americans have known since the 1960s; the other leads to a widening divergence reminiscent of earlier periods of intense separation among the states.

    Kettl believes that if the Supreme Court doesn’t constrain the red states, they almost certainly will push much further in undoing the rights revolution.We haven’t seen what the boundary of that effort will be yet,” he told me, pointing to the ordinances some Texas localities have passed attempting to bar women from driving through them to obtain an abortion out of state.

    If the Supreme Court allows the red states a largely free hand to continue devising their own system of civil rights and liberties, Chemerinsky said, it will present Americans with a “profound” question:

    “Will the county accept being two different countries with regard to so many of these important things, as it did with regard to other important things such as slavery and civil rights?” he said. “Or will there be a point that people will say, ‘What divides us as a country is much greater than what unites us.’ And will we start hearing the first serious calls to rethink the United States?”

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    Ronald Brownstein

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  • The Next Big Abortion Fight

    The Next Big Abortion Fight

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    For the 150 or so people who filled a church hall in Toledo, Ohio, for a Thursday-night campaign rally last week, the chant of the evening featured a profanity usually discouraged in a house of God.

    “With all due respect, pastor, hell no!” shouted Betty Montgomery, a former Ohio attorney general. Montgomery is a Republican, which gave the largely Democratic audience even more reason to roar with approval. They had gathered at the Warren AME Church, in Toledo, to voice their opposition to a constitutional amendment that Ohio voters will approve or reject in a statewide referendum on August 8. Many of those in the boisterous crowd were experiencing a feeling unfamiliar to Democrats in the state over the past decade: optimism.

    If enacted, the Republican-backed proposal known as Issue 1 would raise the bar for any future changes to the state constitution. Currently, constitutional amendments in Ohio—including the one on next week’s ballot—need only a bare majority of voters to pass; the proposal seeks to make the threshold a 60-percent supermajority.

    In other years, a rules tweak like this one might pass without much notice. But next week’s referendum has galvanized Democratic opposition inside and outside Ohio, turning what the GOP had hoped would be a sleepy summertime election into an expensive partisan proxy battle. Conservatives have argued that making the constitution harder to amend would protect Ohio from liberal efforts to raise the minimum wage, tighten gun laws, and fight climate change. But the Republican-controlled legislature clearly timed this referendum to intercept a progressive march on one issue in particular: Ohioans will decide in November whether to make access to abortion a constitutional right, and the outcome of next week’s vote could mean the difference between victory and defeat for backers of abortion rights.

    A year after the fall of Roe v. Wade, the back-to-back votes will also test whether abortion as an issue can still propel voters to the polls in support of Democratic candidates and causes. If the abortion-rights side wins next week and in November, Ohio would become the largest GOP-controlled state to enshrine abortion protections into law. The abortion-rights movement is trying to replicate the success it found last summer in another red state, Kansas, where voters decisively rejected an amendment that would have allowed the legislature to ban abortion, presaging a midterm election in which Democrats performed better than expected in states where abortion rights were under threat.

    To prevent Democratic attempts to circumvent conservative state legislatures, Republican lawmakers have sought to restrict ballot initiatives across the country. Similar efforts are under way or have already won approval in states including Florida, Missouri, North Dakota, and Idaho. But to Democrats in Ohio and beyond, the August special election is perhaps the most brazen effort yet by Republicans to subvert the will of voters. Polls show that in Ohio, the abortion-rights amendment is likely to win more than 50 percent of the vote, as have similar ballot measures in other states. For Republicans to propose raising the threshold three months before the abortion vote in November looks like a transparent bid to move the proverbial goalposts right when their opponents are about to score.

    “I don’t think I’ve seen such a naked attempt to stay in power,” a former Democratic governor of Ohio, Dick Celeste, told the church crowd in Toledo. As in Kansas a year ago, the Republican majority in the state legislature scheduled the referendum for August—a time when the party assumed turnout would be low and favorable to their cause. (Adding to the Democratic outrage is the fact that just a few months earlier, Ohio Republicans had voted to restrict local governments from holding August elections, because they tend to draw so few people.) “They’re trying to slip it in,” Kelsey Suffel, a Democratic voter from Perrysburg, told me after she had cast an early vote.

    That Ohio Republicans would try a similar gambit so soon after the defeat their counterparts suffered in Kansas struck many Democrats as a sign of desperation. “The winds of change are blowing,” Celeste said in Toledo. “They’re afraid, and they should be afraid, because the people won’t tolerate it.”

    The upcoming vote will serve as an important measure of strength for Ohio Democrats ahead of elections in the state next year that could determine control of Congress. Democrats have had a long losing streak in Ohio. Donald Trump easily won the state in 2016 and 2020, and Republicans have won every statewide office except for that of Senator Sherrod Brown, who faces reelection next year. Still, there’s reason to believe Celeste is right to be optimistic. A Suffolk University poll released last week found that 57 percent of registered voters planned to vote against Issue 1. (A private survey commissioned by a nonpartisan group also found the August amendment losing, a Republican who had seen the results told me on the condition of anonymity.) Early-voting numbers have swamped predictions of low participation in an August election, suggesting that abortion remains a key motivator for getting people to turn out. Groups opposing the amendment have significantly outspent supporters of the change.

    Abortion isn’t explicitly on the ballot in Ohio next week, but the clear linkage between this referendum and the one on reproductive rights in November has divided the Republican coalition. Although the state’s current Republican governor, Mike DeWine, backs Issue 1, the two living GOP former governors, Bob Taft and John Kasich, oppose it as an overreach by the legislature.

    “That’s the giant cloud on this issue,” Steve Stivers, a former Republican member of Congress who now heads the Ohio Chamber of Commerce, told me. The Chamber of Commerce backs the amendment because, as Stivers said, it’ll help stop “bad ideas” such as raising the minimum wage, marijuana legalization, and proposals supported by organized labor. But, he said, many of his members were worried that the group would be dragged into a fight over abortion, on which it wants to stay neutral: “The timing is not ideal.”

    Democrats have highlighted comments from Republicans who have departed from the party’s official message and drawn a connection between the August referendum and the abortion vote this fall. “They’ve all said the quiet part out loud, which is this election is 100 percent about trying to prevent abortion rights from having a fair election in the fall,” the state Democratic chair, Liz Walters, told me.

    But to broaden its coalition, opponents of the amendment have advanced a simpler argument—preserve “majority rule”—that also seems to be resonating with voters. “I’m in favor of democracy,” explained Ed Moritz, an 85-year-old retired college professor standing outside his home in Cleveland, when I asked him why he was planning to vote no. Once a national bellwether, Ohio has become close to a one-party state in recent years. For Democrats, citizen-led constitutional amendments represent one of the few remaining checks on a legislature dominated by Republicans. Moritz noted that the GOP had already gerrymandered the Ohio legislature by drawing maps to ensure its future majorities. “This,” he said, “is an attempt to gerrymander the entire population.”

    To Frank LaRose, the suggestion that Issue 1 represents an assault on democracy is “hyperbole.” LaRose is Ohio’s Republican secretary of state and, of late, the public face of Issue 1. Traversing Ohio over the past few weeks, he’s used the suddenly high-profile campaign as a launching pad for his bid for the Republican nomination for Senate in 2024.

    LaRose, 44, served for eight years in the state Senate before becoming Ohio’s top elections officer in 2019. (He won a second term last year.) He’s a smooth debater and quick on his feet, but on the Issue 1 campaign, he’s not exactly exuding confidence.

    In an interview, he began by rattling off a litany of complaints about the opposition’s messaging, which he called “intentionally misleading.” LaRose accused Issue 1’s opponents of trying to bamboozle conservative voters with literature showing images of the Constitution being cut to pieces and equating the amendment with “Stop the Steal.” “That’s completely off base,” he said. “We’ve had to compete with that and with a mountain of money that they’ve had, and with a pretty organized and intentional effort by the media on this.”

    LaRose likes to remind people that even if voters approve Issue 1, citizens would still be able to pass, with a simple majority, ballot initiatives to create or repeal statutes in Ohio law. The August proposal applies only to the state constitution, which LaRose said is not designed for policy making. Left unsaid, however, is that unlike an amendment to the constitution, any statutory change approved by the voters could swiftly be reversed by the Republican majority in the legislature.

    “Imagine if the U.S. Constitution changed every year,” he said. “What instability would that create? Well, that’s what’s at risk if we don’t pass Issue 1.” LaRose’s argument ignored the fact that Ohio’s rules for constitutional amendments have been in place for more than a century and, during that time, just 19 of the 77 changes proposed by citizen petitions have passed. (Many others generated by the legislature have won approval by the voters.)

    LaRose has been spending a lot of his time explaining the amendment to confused voters, including Republicans. When I spoke with him last weekend, he had just finished addressing about two dozen people inside a cavernous 19th-century church in Steubenville. He described his stump speech as a “seventh-grade civics class” in which he explained the differences between the rarely amended federal Constitution and Ohio’s routinely amended founding document. The laws that Ohio could be saddled with if the voters reject Issue 1, LaRose warned, went far beyond abortion: “It’s every radical West Coast policy that they can think of that they want to bring to Ohio.”

    The challenges LaRose has faced in selling voters on the proposal soon became apparent. When I asked a pair of women who had questioned LaRose during his speech whether he had persuaded them, one simply replied, “No.” Another frustrated attendee who supported the proposal told LaRose that she had encountered voters who didn’t understand the merits of the idea.

    Republicans have had to spend more time than they’d like defending their claim that Issue 1 is not simply an effort to head off November’s abortion amendment. They have also found themselves playing catch-up on an election that they placed on the ballot. “They got out of the gate earlier than our side,” the state Republican Party chair, Alex Triantafilou, told me, referring to an early round of TV ads that opposition groups began running throughout the state.

    The GOP’s struggle to sell its proposal to voters adds to the perception that the party, in placing the measure on the ballot, was acting not from a position of strength but of weakness. The thinly disguised effort to preempt a simple-majority vote on abortion is surely a concession by Republicans that they are losing on the issue even in what has become a reliably red state.

    When I asked LaRose to respond to the concerns about abortion that Stivers reported from his members in the Chamber of Commerce, he lamented that it was another example of businesses succumbing to “cancel culture.”

    Confidence can be dangerous for a Democrat in Ohio. Barack Obama carried the state twice, but in both 2016 and 2020, late polls showing a tight race were proved wrong by two eight-point Trump victories. A similar trajectory played out last year, when the Republican J. D. Vance pulled away from the Democrat Tim Ryan in the closing weeks to secure a seven-point victory in Ohio’s Senate race.

    “Democrats in the state are beaten down,” says Matt Caffrey, the Columbus-based organizing director for Swing Left, a national group that steers party donors and volunteers to key races across the country. He’s seen the decline firsthand, telling me of the challenge Democrats have had in recruiting canvassers and engaging voters who have grown more discouraged with each defeat.

    That began to change this summer, Caffrey told me. Volunteers have flocked to canvassing events in large numbers, some for the first time—a highly unusual occurrence for a midsummer special election, he said. At a canvass launch I attended in Akron over the weekend, more than three dozen people showed up, including several first-timers. As I followed Democratic canvassers there and in Cleveland over two days last week, not a single voter who answered their door was unaware of the election or undecided about how they’d vote. “It’s kind of an easy campaign,” Michael Todd, a canvasser with the group Ohio Citizen Action in Cleveland, told me. “Not a whole lot of convincing needs to be done.”

    The response has prompted some Democrats to see the August election as an unexpected opportunity to reawaken a moribund state party. The referendum is a first for Swing Left, which has exclusively invested in candidate races since it formed after Trump’s victory in 2016. “It’s a great example of what we’re seeing across the country, which is the fight for reproductive freedom and the fight for democracy becoming closely attached,” the group’s executive director, Yasmin Radjy, told me in Akron. “We also think it’s really important to build momentum in Ohio, a state that we need to keep investing in.”

    A win next week would make the abortion referendum a heavy favorite to pass in November. And although Ohio is unlikely to regain its status as a presidential swing state in 2024, it could help determine control of Congress. Brown’s bid for a fourth term is expected to be one of the hardest-fought Senate races in the country, and at least three Ohio districts could be up for grabs in the closely divided House.

    For Democrats like Caffrey, the temptation to think bigger about a comeback in Ohio is tempered by the lingering uncertainty about next week’s outcome—whether the party will finally close out a victory in a state that has turned red, or confront another disappointment. “It would be hard for Democrats in Ohio to feel complacent. I wish we would be in a position to feel complacent,” Caffrey said with a smile. “This is more about building hope.”

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    Russell Berman

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  • Four Lessons Republicans Must Learn Before 2024

    Four Lessons Republicans Must Learn Before 2024

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    The Republican Party swaggered into Tuesday’s midterm elections with full confidence that it would clobber President Joe Biden and his Democratic Party, capitalizing on voters’ concerns over inflation and the economy to retake majorities in both chambers of Congress. The question, party officials believed, was one only of scale: Would it be a red wave, or a red tsunami?

    The answer, it turns out, is neither.

    As of this morning, Republicans had yet to secure a majority in either the House or the Senate. Across the country, Democrats won races that many in the party expected to lose. Millions of votes are still to be counted, particularly in western states, but this much is clear: Even if Republicans eke out narrow congressional majorities, 2022 will be remembered as a triumph for Democrats, easily the best midterm cycle for an incumbent president’s party since 2002, when the country rallied around George W. Bush and his GOP in the aftermath of the September 11 terrorist attacks.

    Given the tailwinds they rode into Election Day—a fragile economic outlook, an unpopular president, a pervasive sense that our democracy is dysfunctional—Republicans spent yesterday trying to make sense of how things went so wrong. There was a particular focus on Michigan, Pennsylvania, and Wisconsin, three battleground states that went from red to blue on Election Day 2020, and states where Democrats won major victories on Tuesday.

    Based on my reporting throughout the year, as well as data from Tuesday’s exit polling and conversations with Republican officials in the immediate aftermath of Election Day, here are four lessons I believe the party must learn before the next election in 2024.

    1. Democratic turnout is going to boom in the post-Dobbs era.

    For 50 years, Republicans raged against the Supreme Court decision in Roe v. Wade that established a constitutional right to an abortion, arguing that the ruling should be struck down and abortion policies should be determined by individual states. When it finally happened—when Politico in early May published a leaked draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization striking down Roe v. Wade—I warned the evangelical leader Russell Moore on his podcast that Republicans, and especially conservative Christians, were about to deal with some devastating unintended consequences.

    Up until the 2022 election, most voters had engaged with the abortion issue as an every-four-years, very-top-of-the-ticket decision. Presidents appoint Supreme Court justices, after all, and only a Supreme Court ruling could fundamentally change abortion policies in the country. (This was essential to Donald Trump’s victory in 2016: Nearly a quarter of his voters said the Supreme Court was their top issue in the election, after he’d promised to appoint “pro-life judges.”) Given that abortion rights were protected by Roe, the voters who identified abortion as their top priority always skewed Republican, and they were primarily mobilized by presidential campaigns and the prospect of Supreme Court vacancies.

    We have now entered a different political universe.

    More than a quarter of all voters named abortion as their top priority in this election. That number would be astonishing in any cycle, much less in a midterm campaign being waged against a backdrop of historic inflation and a looming recession. (The only issue of greater salience to voters overall—and not by much—was the economy, which 31 percent named as their top priority.) Even more surprising was the gap in partisan enthusiasm: Among the 27 percent of voters who prioritized abortion in this election, 76 percent supported Democratic candidates, according to exit polling, while just 23 percent backed Republicans.

    This is a direct result of the Dobbs ruling, which left individual states scrambling to figure out their own abortion regulations. With Republicans pushing a menu of restrictive measures across the nation, Democrats running for office at every level—Congress, state legislature, governor, attorney general—suddenly had ammunition to mobilize a party base that was, until that time, looking complacent. (When Republican Glenn Youngkin won the governor’s race in deep-blue Virginia last year, only 8 percent of voters named abortion as their top priority.) At the same time, Dobbs gave Democrats a tool to reach moderates and independents, particularly suburban women, who’d rejected the Republican Party in 2020 but were beginning to drift back toward the GOP because of concerns about inflation and crime.

    Democrats I spoke with throughout the summer and fall were hopeful that the abortion issue would be sufficient to prevent a Republican rout. It did that and much, much more. The Dobbs effect on this election is almost impossible to exaggerate. All five states that featured a ballot referendum on questions of abortion saw the pro-choice side win. (This includes Kentucky and Montana, states that President Joe Biden lost by 26 points and 16 points, respectively.) In those states alone, dozens of Democrats, from the top of the ballot to the bottom, received a potentially race-deciding boost from the abortion referendum. Even in the 45 states where abortion wasn’t literally on the ballot, it was clearly the issue that carried the day for a host of vulnerable Democrats.

    By every metric available—turnout, exit polling, individual races, and referendum results—abortion was the dominant motivator for Democrats, particularly younger Democrats, who have historically skipped midterm elections. It was also the dominant motivator for moderates and independents to stick with an unpopular president. The story of this election was that millions of voters who registered dissatisfaction with Biden and his economic policies voted for his party anyway. Why? Because they were more concerned about Republicans’ approach to abortion than Democrats’ approach to inflation.

    This is very bad news for the GOP. Democrats now have a blueprint for turning out the vote in a punishing political environment. In each of the two midterm elections under President Barack Obama, Democrats hemorrhaged congressional and state legislative seats because the party lacked a base-turnout mechanism—not to mention a persuasion tactic—to compensate for voters’ concerns over a sluggish economy. Politics is a copycat business. Now that Democrats have found a winning formula, you can expect to see entire field programs, messaging campaigns, microtargeting exercises, and ballot-initiative drives built around abortion access.

    A winning issue today is not necessarily a winning issue tomorrow. Abortion rights will rise and fall in terms of resonance, depending on the place, the party in control, and the policies that govern the issue locally. We’ve seen Democrats overplay their hand on abortion in the past, as in 2014, when Republicans flipped a U.S. Senate seat because the Democratic incumbent, Mark Udall, campaigned so myopically on abortion rights that even the liberal Denver Post editorial board ridiculed him as “Senator Uterus.” If Democrats rely too much on the issue—or, maybe the greater temptation, if they use their legislative power to advance abortion policies that are just as unpopular with moderates and independents as some of what Republicans campaigned on this cycle—their advantage could evaporate quickly.

    Still, the “Senator Uterus” episode came in the pre-Dobbs era, back when Americans still viewed the Supreme Court as the most immediate arbiter of abortion rights, and local candidates didn’t have nearly the reason (or incentive) to engage with the issue. This is now the post-Dobbs era. Voters who care about abortion are thinking less about Supreme Court justices and more about state legislators. The political advantage, at least for now, belongs to a Democratic Party that just weaponized the issue to turn out its base in a major and unexpected way.

    2. Bad candidates are an incurable (and fast-spreading) cancer.

    In Michigan, “Prop 3,” the ballot proposal enshrining abortion rights into the state constitution, drove enormous voter participation. Democrats were the clear beneficiary: They won all three statewide campaigns as well as the state’s most competitive congressional races. But Democrats did even more damage at the local level, ambushing Republicans in a number of off-the-radar local contests and winning back control of both state legislative chambers for the first time since 1983.

    But if you ask Republicans in the state, Prop 3 wasn’t the biggest contributor to the down-ballot massacre. Instead, they blame the terrible GOP candidates at the top of the ticket.

    Whereas Republicans in other states nominated one or perhaps even two far-right candidates to run in marquee statewide races, Michigan Republicans went for the trifecta. Tudor Dixon, the gubernatorial nominee, was a political novice who had made extreme statements about abortion and gun control in addition to casting doubts on Trump’s 2020 defeat. Matt DePerno, the nominee for attorney general, was best known for leading a crusade to investigate and overturn Biden’s 2020 victory in the state. Kristen Karamo, the nominee for secretary of state, was a like-minded conspiracy theorist who manifestly knew nothing about the way Michigan’s elections are administered, and even less about the other duties of the job she was seeking.

    “You just can’t ignore the question of candidate quality,” Jason Roe, who ran Republican Tom Barrett’s campaign against Elissa Slotkin, one of the nation’s premier congressional contests, in Michigan’s Seventh District, told me. “We had a fundraising disadvantage, we had Prop 3 to overcome, but candidate quality—that was our biggest headwind. Tom ran about seven points ahead of the statewide ticket. I’m not sure what else he’s supposed to do.”

    The same pattern was visible in different parts of the country. In Pennsylvania, Democrats seized back control of the state House chamber for the first time in more than a decade. How? Two words: Doug Mastriano.

    In the campaign to become Pennsylvania’s next governor—what was once expected to be one of the nation’s tightest races—Mastriano, the GOP nominee, proved particularly unpalatable. It wasn’t just Mehmet Oz, the Republican nominee for U.S. Senate in that state, who stayed away; most GOP state lawmakers, even those who shared some of Mastriano’s fringe worldview as it pertains to election legitimacy or Christian nationalism, kept their distance.

    But it hardly mattered. The smoldering crater left by Mastriano’s implosion (he trailed by nearly 14 points as of yesterday evening) swallowed up Republicans all around him. Not only did Democrats improbably win back control of the state House; they also won all three of the state’s contested congressional races.

    Time and again on Tuesday, bad candidates sabotaged both their own chances of victory and also the electoral prospects of their fellow partisans on the ticket. And for most of these bad candidates, a common quality stood out: their views on the legitimacy of our elections.

    3. Voters prefer “out of touch”  to “out of their mind.”

    For Republicans, a central charge against Democrats throughout 2022 has been that Biden and his party are out of touch with ordinary Americans. A distilled version of the argument went like this: Democrats, the party of social and cultural elites, can’t relate to the economic pain being felt by millions of working people.

    That message penetrated—to a point.

    According to exit polls, 20 percent of voters said inflation has caused their families “severe hardship” over the past year. Among those respondents, 71 percent supported Republicans, and 28 percent supported Democrats. This is broadly consistent with other findings in the exit polling, as well as public-opinion research we saw throughout the summer and fall, showing disapproval of Biden and his stewardship of the economy. This would seem damning for Democrats—that is, until you consider the numbers in reverse and ask the obvious question: Why did three in 10 people who said they’ve experienced “severe hardship” decide to vote for the party that controls Congress and the White House?

    The simplest explanation is that although many of these voters think Democrats are out of touch, they also think Republicans are out of their minds. And it seems they prefer the former to the latter.

    “This is what I would see in our focus groups all summer, and it makes more sense now in retrospect,” says Sarah Longwell, a Republican strategist who produced a podcast series this year narrating her sessions with undecided voters. “We would have these swing voters who would say things are going bad: inflation, crime, Biden’s doing a bad job, all of it. And then you say, ‘Okay, Gretchen Whitmer versus Tudor Dixon. Who are you voting for?’ And even though they’re pissed at Whitmer—she hasn’t fixed the roads, she did a bad job with COVID—they were voting for her. Because they all thought Dixon was crazy.”

    It was the same thing, Longwell told me, in her focus groups all over the country—but particularly in the Midwest. She said that Tony Evers, the Democratic governor of Wisconsin, kept getting the same benefit of the doubt as Whitmer: “They didn’t like a lot of his policies, but they thought Tim Michels”—his Republican challenger—“was an extremist, a Trumplike extremist.” Her conclusion: “A lot of these people wanted to vote for a Republican; they just didn’t want to vote for the individual Republican who was running.”

    For many voters, the one position that rendered a candidate unacceptable was the continued crusade against our elections system. In Pennsylvania, for instance, 34 percent of voters supported Democrats despite experiencing “severe hardship,” significantly higher than the national average. The reason: 57 percent of Pennsylvanians said they did not “trust” Mastriano to oversee the state’s elections.

    Another strategy Republicans used to portray Democrats as “out of touch” was to focus on rising crime rates in Democratic-governed cities and states. This was an unqualified success: Exit polling, both nationally and in key states, showed that clear majorities of voters believe Republicans are better suited to handle crime. In Michigan, 53 percent of voters said they trusted Dixon to deal with crime, as opposed to just 42 percent for Whitmer. But it barely made a difference in the outcome: Despite trailing by 11 points on that question, Whitmer actually won the race by 11 points. To understand why, consider that 56 percent of Michigan voters characterized Dixon as “too extreme.” Only 38 percent said the same about Whitmer.

    In the exit polls, perhaps the most provocative question was about society’s changing values relative to gender identity and sexual orientation. Half of all voters—exactly 50 percent—said those values are changing for the worse. Only 26 percent, meanwhile, said those values are changing for the better. (The remaining 24 percent did not have a strong opinion either way.) This is another data point to suggest that Democrats, by championing an ultraprogressive approach to LGBTQ issues, come across as out of touch to many Americans. And yet, even among the voters who expressed alarm over America’s values in this context, 20 percent voted for Democrats. This is a revelation: Given the ferocity of rhetoric in this campaign about drag shows, transgender athletes, and sexualized public-school curricula, one might have predicted virtually zero people would both decry the LGBTQ agenda and vote Democratic. But two in 10 voters—more than enough to tip any close election—did exactly that. Why?

    Again, the simplest explanation is probably best: Plenty of voters are worried about unchecked progressivism on the left, but they’re even more worried about unchecked extremism on the right.

    That extremism takes many forms: delegitimizing our elections system, endorsing the January 6 assault on the Capitol, cracking jokes and spreading lies about the assault on House Speaker Nancy Pelosi’s husband. And all of this extremism, which so many swing voters spurned on Tuesday, is embodied by one person: Donald Trump.

    4. Trumpism is toxic to the middle of the electorate.

    Here’s the scenario many of us were expecting on Election Day: The president, still the titular head of his party despite a growing chorus of questions about his age and competence, suffers a series of humiliating defeats that reflect the weakness of his personal brand and cast doubt on his ability to lead the party moving forward.

    And that’s precisely what happened—to the former president.

    If Tuesday felt strange—“the craziest Election Night I’ve ever seen,” as the elections-analyst Dave Wasserman tweeted—it’s because so many races revolved around someone who wasn’t running for anything. The reason that practically every first-term president in modern history has gotten pummeled in the midterms is that the opposition party typically cedes the stage and makes it all about him. The idea is to force the party in power to own everything that’s unsatisfactory about the country—its economic performance, military failures, policy misfires. It’s a time-honored tradition: Make the election a referendum on the new guy in charge.

    Until now.

    In each of the three states that saw major Democratic victories—Michigan, Pennsylvania, and Wisconsin—25 to 30 percent of voters said they had cast their vote in opposition to Trump. To reiterate: This is a quarter of the total electorate, consistently across three of the nation’s most polarized battleground states, acknowledging that they were motivated by the idea of defeating someone who wasn’t on the ballot, and who currently holds no office. It’s easy to see why they succeeded: In these states, as well as nationally, the only thing worse than Biden’s approval rating was Trump’s. In state after state, congressional district after congressional district, voters rejected the Trump-approved candidate, for many of the same reasons they rejected Trump himself two years ago.

    Looking to 2024, GOP leaders will attempt to address the missed opportunities of this election. They will, no doubt, redouble their efforts to recruit strong candidates for statewide races; they will prioritize proven winners with mainstream views on abortion and democratic norms and the other issues by which moderates and independents will assess them. Whatever success party officials might find on a case-by-case basis, they will be treating the symptoms and ignoring the sickness. The manifest reality is that Trumpism has become toxic—not just to the Never Trumpers or the RINOs or the members of the Resistance, but to the immense, restless middle of the American electorate.

    We’ve long known that Trumpism without Trump doesn’t really sell; the man himself has proved far more compelling, and far more competitive, than any of his MAGA imitators. But what we saw Tuesday wasn’t voters selectively declining certain decaffeinated versions of Trump; it was voters actively (and perhaps universally, pending the result in Arizona’s gubernatorial race) repudiating the core elements of Trump’s political being.

    This trouncing, on its own, might have done little to loosen Trump’s chokehold on American conservatism. But because it coincided with Florida Governor Ron DeSantis’s virtuoso performance—winning reelection by an astonishing 1.5 million votes; carrying by double digits Miami-Dade County, which Hillary Clinton won by 30 points; defeating his Democratic opponent by nearly 20 points statewide—there is reason to believe, for the first time in six and a half years, that the Republican Party does not belong to Donald Trump.

    “I’ll tell you why Tuesday was a bad night for Trump: Ron DeSantis now has 100 percent name ID with the Republican base. Every single Republican voter in the country knows who he is now,” says Jeff Roe, who managed Ted Cruz’s 2016 campaign and runs the nation’s largest political-consulting firm. “A lot of these people are gonna say, ‘All these other Republicans lost. This is the only guy that can win.’ That’s really bad for Trump. Republicans haven’t had a choice in a long time. Now they have a choice.”

    Trump’s intraparty critics have long complained that his brutally effective takeover of the GOP obscures his win-loss record. This is someone, after all, who earned the 2016 nomination by securing a string of plurality victories against a huge and fragmented field; who lost the popular vote to Hillary Clinton by nearly 3 million; who gave away the House in 2018 and the Senate in 2020; who lost the popular vote to Biden by 7 million and handed over the White House; and who just sabotaged the party’s chances of winning key contests in a number of battleground states.

    Earlier this week, Trump pushed back the expected launch of his 2024 presidential campaign. This was done, in part, so that he could appropriate the narrative of a grand Republican victory against Biden and the Democrats. Given his humiliating defeats, and how they’re being juxtaposed against the victories of his emerging young rival from Florida, Trump might want to move the announcement back up before a very different narrative begins to take hold.

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    Tim Alberta

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