“Just The Way They Do Business”: The Conservative Go-For-Broke Legal Strategy Suffers A Blow
These days, conservatives don’t suffer too many unanimous defeats at the Supreme Court, even in its currently unsettled status. But that’s what happened today, when the Court handed down an 8-0 ruling in a case called Evenwel v. Abbott, which had the potential to upend an understanding of democratic representation that has existed for two centuries, and give Republicans a way to tilt elections significantly in their favor before anyone even casts a vote.
The conservatives lost. But losing cases like this one is part of the way they do business. With a (usually) friendly Supreme Court, in recent years they’ve employed a strategy of maximal legal audacity, one that has yielded tremendous benefits to their cause.
This case was a relatively low-profile part of a comprehensive conservative assault on voting rights — or perhaps it’s more accurate to call it an assault on the ease with which people who are more likely to vote Democratic can obtain representation at the ballot box. The question was about how state legislative districts are drawn, and the principle of “one person, one vote.” We’ve long had a legal consensus that all districts in a state have to be approximately the same size, to give everyone equal representation; a state legislature can’t draw one district to include a million people and another district to include only a thousand (although you might point out that we do have a legislative body that violates this principle; it’s called the United States Senate, where Wyoming gets one senator for every 300,000 residents and California gets one senator for every 20 million residents).
The plaintiffs in Evenwell argued that instead of using population to draw district lines, states should use the number of eligible voters. Apart from the fact that we know population numbers fairly precisely because of the census, and we have no such precision regarding eligible voters, that would exclude huge swaths of the public. You might immediately think of undocumented immigrants, but counting only eligible voters would also mean excluding people with green cards on their way to citizenship, children, and those who have had their voting rights taken away because of a criminal conviction. In practice, drawing districts this way would almost inevitably mean taking power away from urban areas more likely to vote Democratic and sending power to rural areas more likely to vote Republican. Which was of course the whole point.
This case was a real long shot from the beginning, as you might gather from the fact that the conservative activists who filed it were suing the state of Texas, which is controlled by Republicans and is not exactly enthusiastic about ensuring everyone’s voting rights (the state’s incredibly restrictive voter ID law is still working its way through the courts). The problem they ran into came from the fact that the lawsuit alleged not that a state may draw districts based on the number of eligible voters and not the population, but that it must draw districts that way. That was the only way for them to file the suit, since they were trying to force Texas to change how it was drawing districts.
Since Texas had chosen to use population, just as every other state does and always has, in order to force a change the plaintiffs wanted that method declared unconstitutional. If they had prevailed, that could have meant that every state legislative district in the country would have had to be redrawn. As Ruth Bader Ginsburg wrote in the ruling, “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.”
About the legal audacity I mentioned before: As unlikely as this case may have been to succeed, it’s another reminder of how legally aggressive the right has been lately. Again and again, whether it’s about voting rights or the Affordable Care Act or some other issue, they’ve come up with some novel legal theory that at first gets dismissed as completely absurd, then begins to sound mainstream as conservatives see an opportunity to gain a victory and rally around it. Even if they ultimately lose in court, the controversy can open up new legal and political avenues that hadn’t been evident before.
They lost today, and if you get Samuel Alito and Clarence Thomas to agree with Ruth Bader Ginsburg and Sonia Sotomayor that your claim is bogus, you know you’ve gone pretty far. But this case leaves an open question, which is whether a state can switch to an eligible-voter count in order to draw its districts if it chooses. No state has chosen to do that, but don’t be surprised if now that the issue has gotten some attention, conservative Republican legislators in deep-red states — particularly those with large numbers of Latino immigrants — start proposing it. I’d keep my eye on Texas.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, April 4, 2016
“We Weren’t Really Trying”: Bernie Sanders’ Campaign Offers Awkward Take On State Of The Race
Presidential campaigns are long, exhausting exercises for the candidates and their teams, and the fatigue invariably leads otherwise competent people to slip up. It happens in every race, in both parties, whether things are going well or going poorly.
A few weeks ago, for example, Tad Devine, the top strategist in Bernie Sanders’ presidential campaign and an experienced consultant, mentioned in passing the idea of Hillary Clinton adding the Vermont senator to the ticket as her running mate. Asked if Sanders would consider such an offer, Devine replied, “I’m sure, of course.” Soon after, Devine realized that this made it sound as if the independent lawmaker wasn’t really running to win, so he walked it all back. Staffers everywhere had a “there but for the grace of God go I” moment.
The strategist obviously just made a mistake, said something he didn’t really mean, and reversed course quickly. Today, however, I think Devine slipped up again in a way he’ll soon regret. Mother Jones reported:
“[Hillary Clinton’s] grasp now on the nomination is almost entirely on the basis of victories where Bernie Sanders did not compete,” said senior strategist Tad Devine. “Where we compete with Clinton, where this competition is real, we have a very good chance of beating her in every place that we compete with her.”
Devine named eight states where he said the Sanders campaign did not compete with a big presence on the ground or much on-air advertising: Texas, Alabama, Virginia, Louisiana, Tennessee, Mississippi, Georgia, and Arkansas.
According to a report from Business Insider, Devine added, “Essentially, 97% of her delegate lead today comes from those eight states where we did not compete.”
No matter which candidate you like or dislike, I think it’s fair to say Team Sanders has generally run a strong campaign, exceeding everyone’s expectations, and positioning the senator as one of the nation’s most prominent progressive voices for many years to come. Sanders isn’t the first presidential candidate to run on a bold, unapologetic liberal platform, but he is arguably the first in recent memory to do in such a way as to position himself as a leader of a genuine movement.
But whether or not you’re impressed with what Sanders has put forward, his campaign’s latest pitch is an unfortunate mess.
As a matter of arithmetic, there’s some truth to Devine’s assessment: when it comes to pledged delegates, Clinton leads Sanders by about 250. Add together Clinton’s net delegate gains from Texas, Alabama, Virginia, Louisiana, Tennessee, Mississippi, Georgia, and Arkansas, and it’s about 250.
But as a rule, presidential campaigns don’t get to lose a whole bunch of key primaries by wide margins and then declare, “Yeah, but we weren’t really trying.” If these eight nominating contests have left the Sanders campaign at a disadvantage they’re unlikely to overcome, it’s actually incumbent on his top aides and strategists to explain why they didn’t make more of an effort in these states.
It’s easy to imagine folks from Team Clinton saying they weren’t exactly going all out to win in Idaho and Utah – states Sanders won easily – but competitive candidates for national office don’t get to use that as an excuse when things aren’t going as well as they’d like.
At its root, Devine’s argument is that Team Sanders identified a series of early, delegate-rich states, but they chose not to bother with them. That’s not just a bad argument; it’s the kind of message that’s probably going to irritate quite a few Sanders supporters who expect more from their team.
Making matters slightly worse, Tad Devine’s pitch isn’t altogether accurate. In Virginia, for example – one of the eight primaries in which he says Team Sanders chose not to compete – plenty of campaign watchers know the senator actually made an effort in the commonwealth and lost anyway. The senator also campaigned in Texas, which is another one of the states Devine said the campaign wrote off.
As for the argument that Sanders wins “in every place that we compete with her,” even taken at face value, it’s not an especially compelling argument: Team Sanders made a real effort to win in states like Arizona, Nevada, Ohio, and Massachusetts, but he lost in each of them.
Don’t be too surprised if Devine walks back his comments today. It’s just not a message that does Team Sanders any favors.
Update: Devine also said the Sanders campaign chose to compete for state victories, rather than compete for delegate victories. I have no idea why the campaign would deliberately choose to compete by the wrong metric that would lead to defeat, but if I were a die-hard Sanders backer, this kind of rhetoric would be incredibly frustrating.
By: Steve Benen, The Maddow Blog, March 28, 2016
“Voter Fraud Is Rampant”: This Week In Republican Political Lies
Gov. Greg Abbott of Texas — last seen threatening the president of the United States with armed revolt — has turned his attention back to suppressing the vote in his home state.
On Monday, the governor took exception to comments President Obama made last week during an interview at the SXSW festival, to the effect that that Texas’s voter turnout is so abysmal in part because the state’s officials “aren’t interested in having more people participate” in elections. As an example, Mr. Obama pointed to Texas’s extremely strict voter-identification law, which lawmakers passed in 2011, but which was invalidated by a federal district judge in 2014.
Governor Abbott rejected Mr. Obama’s premise. “What I find is that leaders of the other party are against efforts to crack down on voter fraud,” he responded. “The fact is that voter fraud is rampant. In Texas, unlike some other states and unlike some other leaders, we are committed to cracking down on voter fraud.”
“Voter fraud is rampant” — it’s the hoariest claim of proponents of voter-ID laws, and the most untrue. As the evidence has shown over and over and over and over and over, there is no voter-impersonation fraud — the only type of fraud that such laws purport to combat.
In 2014, Justin Levitt, an election-law scholar at Loyola Law School in Los Angeles, catalogued every instance of voter-impersonation fraud he could find in any election since 2000 — not just prosecutions, but even vaguely credible allegations. He found 31 — over a period in which Americans cast about 1 billion votes in federal, state and local elections.
Meanwhile, tens or hundreds of thousands of otherwise-eligible voters are either blocked from voting or deterred from trying because of these laws.
Back in 2007, a federal appeals court judge named Terence Evans saw this discrepancy plainly, calling voter-ID laws “a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.” Noting the discrepancy between the alleged harm and the proposed solution, he asked, “Is it wise to use a sledgehammer to hit either a real or imaginary fly on a glass coffee table?”
Nine years later, the hammer still swings. On March 9, the full United States Court of Appeals for the Fifth Circuit voted to reconsider the district court’s decision striking down Texas’s voter-ID law.
Republican politicians, who appear more afraid every day of losing their tenuous grip on a changing electorate, could adjust their message to appeal to a broader swath of voters. Instead they are taking the path of least resistance and trying to silence those they’ve already written off.
By: Jesse Wegman, Editorial Pages, Editor’s Blog, The New York Times, March 17, 2016
“All Politics Were Not, It Turned Out, Local”: Cruz And Rubio Played Smart Nevada Politics — And Got Waxed Anyway
When you look closely at how senators Marco Rubio and Ted Cruz approached Tuesday’s Nevada caucuses, you cannot help but be impressed. Despite all of the competing demands of last week’s pivotal South Carolina primary and the riot of events coming up in March, both candidates came up with smart strategies nicely customized for Nevada.
Rubio played up his personal connection to Las Vegas (where he lived as a child) and its Mormon community (to which his family once belonged), featuring high-profile LDS endorsers from Lieutenant Governor Mark Hutchison to Utah’s Jason Chaffetz and Orrin Hatch. He also quickly picked up local support from Jeb Bush’s once-formidable Nevada organization, featuring Senator Dean Heller, and “borrowed” much of Governor Brian Sandoval’s political network.
Meanwhile, Cruz parachuted into Nevada and immediately tied his campaign to two red-hot local ideological conflicts: the perennial battle over federal land policies (smartly identifying Trump with the highly unpopular cause of eminent-domain “seizures” of private property) and a tax increase being proposed by Sandoval that Nevada conservatives were fighting. After securing the support of Attorney General Mark Laxalt, the closest thing to a surviving “tea party” leader in the state, Cruz conducted his own, distinctly right-wing LDS strategy by featuring talk-show conspiracy theorist and (incidentally) Mormon Glenn Beck in his Nevada events.
So given the shrewdness of these senatorial strategies and various aspects of the Nevada caucuses that did not bode well for Trump (e.g., a closed caucus structure without Iowa’s EZ same-day party-switch option), it’s no surprise there was speculation in the air Tuesday that the Donald might stumble or at least underwhelm in Nevada.
Didn’t happen, though. On the heels of a monster rally in Las Vegas Monday night, Trump’s national road show trashed all of the local calculations of his rivals and overcame all of the obstacles the caucuses posed for him. Instead of stumbling, Trump set a new and higher “ceiling” for his support while exhibiting strength in nearly every demographic and ideological category. All politics were not, it turned out, local.
That could be a critical asset for Trump in the massive number of nomination contest events on the near horizon. In the 11 March 1 states with anything like recent polling, Trump leads in nine, and is a close second in the other two. One of the latter is Texas, where Ted Cruz really cannot afford to lose; that will constrain him significantly in how he spends his time and money during the next critical week. Just a bit down the road, on March 15, John Kasich and Marco Rubio will face similarly existential moments in their home states, with the added fear factor that both are winner-take-all contests. Trump leads in the most recent polling in both states; his Florida lead is particularly impressive. That can certainly change (the Florida polls were all taken before Jeb Bush’s withdrawal), but, again, Kasich and Rubio will have to defend their home states even as Trump is free to go where the delegates are.
It’s hard to measure the intangible value of Trump’s ability to just be himself and give his rambling, stream-of-consciousness speeches before big excited crowds in events that are all but interchangeable. But unless, say, he screws up egregiously in a nationally televised debate like Thursday’s in Houston that knocks him down multiple points everywhere, or one of his surviving opponents instantly implodes, Trump has the enormous advantage of a general able to outflank an opposing army chained to a fixed but vulnerable point of defense.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, February 24, 2016
“Too Late To Catch Him?”: Trump’s Remorseless Delegate Math Means Rubio and Cruz Are Screwed
The story of Donald Trump’s doomed campaign has been replaced by the story of his inevitability as the Republican nominee.
It’s a sea change indicative of his constant ability to defy expectations. He placed second in the nation’s first contest in Iowa, went on to dominate in New Hampshire and South Carolina, and won Nevada’s GOP caucus on Tuesday night.
But it’s not Trump’s past wins that foretell doom for any Republican candidate trying to stop this phenomenon. It’s the fact that a week out from Super Tuesday, Trump is the overwhelming favorite to win most of the remaining voting states—and their delegates—across the country. To clinch the nomination before the Republican convention, Trump needs 1,237 committed delegates. Before Nevada, he had 67 delegates, and Ted Cruz was in second place with 11.
Here’s how the math works.
On Super Tuesday alone, the only states that Trump currently risks losing, according to Real Clear Politics averages, are Arkansas and Texas. And both of those states have Cruz leading by surmountable percentages (note, though, that polling in both states is not always frequent or entirely current).
Even if Trump comes in second in Texas, he could still win.
Texas is a state that is typically proportional in its delegate allocation but has what the website Frontloading HQ calls a “trigger,” which creates a condition in which the state becomes winner-take-all. This would happen if a candidate wins a majority of the vote. Should this overwhelming victory not happen for Cruz, and, say, Trump comes in second in a proportional setting, the senator from Texas must cede a portion of the 155 delegates in play, thereby essentially handing the contest and the nomination to Trump. If Cruz can’t win his home state, he has little chance throughout the rest of the spring.
The Republican primary contest has long had what Sam Wang, a Princeton University professor and neuroscientist, refers to as a “deadline problem.” Wang, who runs the Princeton Election Consortium, posited on Feb. 11 that the Republican field needed to get smaller in a hurry, setting two specific deadlines to try to defeat Trump.
The first deadline is Feb. 29, at which point Wang thinks there need to be only two alternatives to Trump prior to March 1 voting. The second is March 14, when Wang thinks there can be only one other option besides Trump.
The issue is that many of the states leading up to March 8 fit the model of Trump’s South Carolina victory, in which he captured about a third of the vote but still managed to get all the delegates due to proportionality rules.
Even after Jeb Bush dropped out of the race following his defeat in South Carolina, Trump still faces four opponents before March 1. Marco Rubio, John Kasich, and Cruz will all try and see if they can win their respective home states (where all of them except Rubio are leading). Ben Carson has stubbornly stayed in the race despite finishing fourth at best in most states. But he could be out if his campaign contributions dry up in the coming weeks.
This means that unless everyone but Rubio and Cruz quits in the next week, Trump can’t be caught.
“Any talk of stopping Trump is highly unrealistic,” Wang told The Daily Beast. “Nearly all analysts, including data pundits, are blinded by the peculiarity of Trump’s campaign.”
Wang said he thinks Rubio has no chance of locking up the nomination anytime soon because the field is too divided for him to corral a lot of delegates by Super Tuesday. And if the senator loses his home state of Florida, which polling suggests he might, there isn’t enough time to make up the delegate difference before the Republican convention in July.
Josh Putnam, a political science professor at the University of Georgia who runs Frontloading HQ, told The Daily Beast that the only scenario that would allow a Trump defeat in the primary is a one-on-one matchup.
“If only Trump is winning, then no one can catch him in the delegate count,” Putnam said. “The only play in that scenario would be for opponents to either drop out or play to keep Trump under the 1,237 delegate majority needed to clinch the nomination on the first ballot at the national convention.”
One state that could slow Trump’s speeding train is Ohio, whose winner-take-all contest could keep him shy of the delegate count necessary to clinch the nomination. Trump sits atop the polls there, narrowly beating Buckeye Gov. Kasich.
Even in a situation in which Trump, Rubio, and Cruz are the last three standing, as conventional wisdom would suggest, the road still looks rocky for Cruz and Rubio. An Economist/YouGov poll taken last week showed Trump with 46 percent of the vote, Rubio with 28 percent, and Cruz with 26 percent. An earlier NBC/Wall Street Journal poll found Trump leading in the same circumstance.
Also, as saliently noted by Sahil Kapur in a Bloomberg Politics piece, as of January, Trump had a higher share of Republican voters who would consider voting for him than Mitt Romney had in 2012 around the same time. This suggests the mythic establishment lane has been almost entirely consumed by the singular Trump lane.
Rubio, the presumed second-place candidate at this point, cannot merely rely on absorbing Bush’s supporters either, as ideologically those supporters could just as easily go with Kasich as Rubio. In fact, the only way the Florida senator could catch the frontrunner is to siphon off some of Trump’s support, which seems unlikely. In a January NBC poll, 51 percent of Trump supporters said they were absolutely sure of their choice, while only 26 percent said the same for Rubio.
Wang says the question of Trump’s “ceiling” in terms of national polls is worthless. The real question is just how high his delegate count can go.
“Under Republican rules, it is possible to win a majority of delegates with as little as 30 percent of the vote, if conditions are right,” Wang said, using South Carolina, where Trump took all 50 delegates with only 33 percent of the vote, as an example. “That involves a split field, which is why I have been so focused on that. At Trump’s current level of support, about 35-40 percent, his delegate ceiling is above 50 percent,” meaning, according to Wang’s model, that even if Trump garners 35 percent of the popular support, he can still earn at least half of all the national delegates available.
As for Rubio, the blunt question is, what state can he win on Super Tuesday? He led by a small margin in Minnesota and could see an opening in Colorado. But otherwise his chances look bleak.
In the fantasy scenario where Rubio is viewed as a possible foil for Trump, is it possible to still be a viable contender if you don’t win a state before March 15?
As Nevada’s caucus began, Rubio was getting ready to test this hypothesis with a slew of new endorsements in hand. But in an election where facts don’t matter and Trump is drowning out the noise, it’s going to take more than an impressive posse to catch the frontrunner—as Tuesday night’s results showed.
By: Gideon Resnick, The Daily Beast, February 24, 2016
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