The Indiana Retention Vote

The other day, a reader asked me what I thought of a current effort to deny retention to three members of Indiana’s Supreme Court– judges who had voted to uphold Indiana’s abortion ban. As I told that reader, voting no on a retention vote because of disagreement with one ruling would set a very dangerous precedent.

I subsequently spoke with several practicing lawyers, including a good friend who is a highly respected trial lawyer, an active member of the local bar, and personally pro-choice. He suggested that I share the following information with my readers.

First of all, the process. For fifty years, Indiana has had a merit selection process to identify and appoint members of Indiana’s Supreme Court and Court of Appeals. Once candidates who have been found to be highly qualified are appointed, they submit to a statewide retention vote within two years. Thereafter, they are submitted for a retention vote every 10 years.

This year, Chief Justice Loretta Rush, Justice Mark Massa, and Justice Derek Molter are up for retention to the Supreme Court. None of them is known as “liberal” or “conservative” or partisan. The organized opposition to their retention is based upon their ruling on a challenge to Senate Bill 1, the abortion ban passed by Indiana’s regressive legislature in the wake of the Dobbs decision. Indiana’s ban broadly prohibited abortion but made exceptions for 1) when an abortion is necessary either to save a woman’s life or to prevent a serious health risk; 2) when there is a lethal fetal anomaly; and 3) when pregnancy results from rape or incest.

We can argue about how those exceptions work–or don’t–in the real world, but they are written into the law.

Abortion providers sued to invalidate the law and to enjoin its enforcement. The lawsuit was what lawyers call a “facial challenge”–meaning that the providers had to prove that they had standing and that there were no circumstances under which the law could be upheld. The court found that the plaintiffs had standing to bring the case and that Article 1, Section 1 of the Indiana Constitution protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk.

At the same time, the majority found that the Indiana Legislature had the authority to prohibit abortions that didn’t fall within one of those three categories. It also recognized that, prior to Roe v. Wade, Indiana and forty other states had upheld legislative limitations on abortion.

Lawyers can agree or disagree with the majority’s interpretation. I do disagree– but it was a reasoned decision, far from the   historical dishonesty and religious ideology that permeated Dobbs.

As readers of this blog know, I strongly support abortion rights, and I disagree profoundly with the Dobbs decision. But the postcards that are being disseminated to the public accusing these three justices of voting to ‘strip away’ Hoosier women’s rights to abortion are misleading and unfair. The Justices are bound by precedent–and, unlike the U.S. Supreme Court– they followed their honest reading of that precedent.

As my lawyer friend reminded me, Indiana has one of the most respected supreme courts in America. Our justices serve in many capacities in national judicial organizations, and Chief Justice Rush has been president of the Conference of Chief Justices and Chair of the National Center for State Courts. Opinions of our supreme court are frequently cited in other state judicial opinions and scholarly articles and relied on by state and federal courts nationwide.

Typically, only 75-80% of those who go to the polls will bother to vote on judicial retention. Of that group, there’s a “hard core” of approximately 30% who always vote no. That means that an organized group opposing a judge or justice need only muster another 21% or so–and that’s why this effort is so dangerous. The retention of judges should be based upon their entire body of work and not upon a single opinion, even a questionable one.

I share the anger of people who oppose Indiana’s ban, but our animus should be directed at the legislature–not at a court that, rightly or wrongly, held that the legislature had authority to act.

If the effort to unseat these jurists succeeds, it will close the Indiana Supreme Court for several months, pending the selection of new justices. Worse still, if the Braun/Beckwith ticket wins (and this is deep-Red Indiana), Christian Nationalists will select the new Judges. I’m sure that Braun would be more than willing to subvert the merit process in order to elevate clones of Alito, et al. to Indiana’s top court.

Be careful what you wish for.

 

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How Worried Should We Be?

This year, Indiana’s GOP statewide slate contains three Christian Nationalists–Beckwith, Banks and Rokita–along with ” I’ll- kiss-Trump’s-you-know-what-to- get elected” Braun.

We’ve always had zealots and ideologues in politics, and as a policy person, I find them very troubling.  I used to tell my students that crafting good policies requires negotiation and compromise. When ideologues are able to push through extreme visions of extreme policies, without considering thoughtful, informed concerns raised by people who bring other perspectives to the process, the end result is inevitably flawed—if it works at all.

The effect of America’s increasing tribalism on our ability to conduct even the most basic tasks of governance has been bad enough, but the transformation of the Republican Party into a Christian Nationalist cult threatens the continuation of America’s constitutional democracy—and I say that as someone who was an active Republican for over 35 years. The GOP of today bears absolutely no resemblance to the party I once worked for. What was once its disreputable fringe is now its mainstream.

I’ve spent a considerable amount of time lately researching Christian Nationalism, which is based upon the very ahistorical insistence that America was founded as a “Christian nation” and should be governed by Christians. These are beliefs that genuine Christians reject.

According to the Baptist Joint Committee on Religious Liberty,

Christian nationalism is a political ideology and cultural framework that merges Christian and American identities, distorting both the Christian faith and America’s promise of religious freedom. It relies heavily on a false narrative of America as a “Christian nation,” founded by Christians in order to privilege Christianity. This mythical history betrays the work of the framers to create a federal government that would remain neutral when it comes to religion, neither promoting nor denigrating it — a deliberate break with the state-established religions of the colonies.

Christian nationalists have an “exclusivity” message: only “their kind” of Christians can be “real” Americans. A less frequently articulated part of that message (and the reason Black Evangelical Christians are rarely Christian Nationalists) is their racist belief that only WHITE Christian males can be real Americans.

These racist and exclusionary beliefs are entirely inconsistent with what we know about the beliefs of the Framers, and with the clear language of the Constitution. In the body of the Constitution itself is Article VI, which prohibits the use of any religious test for public office. In the text of the First Amendment, we have the Establishment Clause and the Free Exercise Clause, which—read together—keep government’s hands off religion and protect the liberty of citizens to determine their own beliefs, free of government interference. (The Framers voted down proposed language that simply prohibited the creation of a national church, insisting on language that would create a broader distance between religion and government.) We also have numerous documents written by Madison, Jefferson, Adams and others, all of which support their uniform and unambiguous belief that—as Jefferson wrote to the Danbury Baptists—there should be a “wall of separation between Church and State.”

There isn’t any debate about any of this among reputable historians and legal scholars. Less reputable ones pander to  Christian Nationalism by twisting and cherry-picking history in order to justify their efforts to remake American society into a place where women, gays and people of color occupy subservient positions and White Christian males are once again dominant.

In a very real sense, America is in the throes of a second civil war, this time mostly—but not entirely—without violence. Ironically, this war is being fought over pretty much the same ground as the last one: the assertion that some Americans are entitled to a status superior to others and that non-white, non-Christian, non-male members of society are less entitled than White Christian men to civic equality and the equal protection of the laws.

Project 2025 is a declaration of that civil war–a road map to MAGA’s desired Christian Nationalist theocracy.

Depressing research from the Public Religion Research Institute suggests that 40% of Hoosiers are either full-fledged Christian Nationalists or sympathetic to their beliefs. As we’ve seen, these folks are unwilling to participate in democratic deliberation, unwilling to accord religious liberty to others, and unwilling to accept results of democratic decision-making with which they disagree.

Like Micah Beckwith, they believe they talk to God.

It has never been more important for the sixty percent of Hoosiers who don’t fall into that category to cast their ballots for an excellent–and truly American— slate of Democratic candidates: Jennifer McCormick, Terry Goodin, Valerie McCray, and Destiny Wells, none of whom claim to be on a conversational, first-name basis with God.

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Will Endorsements Matter?

In traditional election cycles, endorsements–generally issued by newspapers–rarely moved votes. The endorsements this year are very different, but whether they will change any votes is unclear. Trump’s MAGA base is firmly insulated from reality–they seem to occupy a different country, where up is down and wet is dry. It isn’t just accusations about immigrants eating dogs and cats–they believe Trump’s claims that crime is up and the economy is tanking, despite the fact that data shows crime plummeting and the American economy flourishing. They might just as well be on another planet.

Because Trump voters occupy an alternate reality, the avalanche of endorsements of Harris/Walz probably won’t pry MAGA votes away. But we can hope that the unprecedented nature of those endorsements will generate registrations and turnout by rational folks who might not otherwise go to the polls. (That certainly is the hoped-for result of celebrity endorsements from super-stars like Taylor Swift.)

What has set this year’s endorsements apart isn’t just the unprecedented number of them, but the political identities and bona fides of the endorsers. (Example: Evangelicals for Harris–really!) Recently, four hundred economists endorsed Harris, warning that the election “is a choice between inequity, economic injustice, and uncertainty with Donald Trump or prosperity, opportunity, and stability with Kamala Harris, a choice between the past and the future.” The other day, seven hundred national security figures announced their endorsement of the Democratic ticket. They were later joined by General Stanley McChrystal.

The sheer number of Republican endorsers–not just the “Never Trumpers”– is staggering.

It isn’t simply high visibility people like Liz and Dick Cheney. Every day we encounter headlines like “State Republican party chairs endorse Kamala Harris for president.” In addition to the Republicans who spoke at the Democratic convention, a group of more than 200 who worked for former Presidents George H.W. Bush, George W. Bush, Sen. Mitt Romney and the late Sen. John McCain signed onto a letter supporting the Democratic nominee.

A recently launched “Republicans for Harris” is steadily growing.

Perhaps the most striking of all was a New York Times recent compilation of opinions of Donald J. Trump from “those who know him best”–members of Trump’s own administration, and “friends” who’ve known him for many years. As the introduction to those quotations put it,

Dozens of people who know him well, including the 91 listed here, have raised alarms about his character and fitness for office — his family and friends, world leaders and business associates, his fellow conservatives and his political appointees — even though they had nothing to gain from doing so. Some have even spoken out at the expense of their own careers or political interests.

The New York Times editorial board has made its case that Mr. Trump is unfit to lead. But the strongest case against him may come from his own people. For those Americans who are still tempted to return him to the presidency or to not vote in November, it is worth considering the assessment of Mr. Trump by those who have seen him up close.

Those opinions followed, and they are scathing. I encourage you to click through and read them.

The sheer number of economic, military and governmental experts–both Republicans and Democrats–who are warning against another Trump administration ought to be dispositive, but it clearly isn’t making inroads into MAGA fidelity, and I think there are two main reasons.

The first–and most frequently noted–is the similarity of MAGA Republicanism to a cult. In large part, MAGA folks have drunk the Kool-Aid. For whatever reason, some people are susceptible to the Jim Jones and Donald Trumps of the world, and fact-based arguments are irrelevant to them. Their devotion to the cult leader fills some sort of psychic need that the rest of us don’t share and can’t understand.

The second reason is less well understood, but I think it’s important.

Much has been made of the growing division between educated and uneducated voters. Education is absolutely not the same thing as intelligence, but folks who never learned how government works, or what the Constitution requires, are much more likely to believe, for example, that the government can simply round up and deport millions of immigrants (not to mention failing to understand the effect that would have on America’s economy if it were possible). They believe Trump when he says other countries will pay for his proposed tariffs–despite the fact that anyone who took Econ 101 knows tariffs are a tax on Americans. Etc.

The first group will simply ignore facts. The second rejects expertise as offensive elitism.

The reality-based community needs to turn out in force.

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When The Speaker Of The House Talks To God…

On October 9th, I will join the Reverend Beau Underwood on a panel moderated by retired lawyer Don Knebel, to discuss why Christian Nationalism is a threat to democracy. (You can access information about that zoom event here.) Regular readers of this blog already know my concerns about the rise of Christian Nationalism–concerns shared by numerous members of the Christian clergy, who point out that the movement is many things, but “Christian” isn’t one of them.

The problem with much of the discussion of this troubling movement is that it tends to be future oriented–to stress the likely results if adherents gain political power. But as a recent article by Dana Milbank in the Washington Post makes clear, Christian Nationalists already occupy powerful positions in Congress, and are largely responsible for the current inability of that body to function properly.

Six weeks after his improbable rise from obscurity to speaker of the House in late 2023, Louisiana’s Mike Johnson decided to break bread with a group of Christian nationalists. He gave the keynote address (at the Museum of the Bible) to the National Association of Christian Lawmakers, a group whose founder, “proud” Christian nationalist Jason Rapert, has said: “I reject that being a Christian Nationalist is somehow unseemly or wrong.”

Rapert’s organization promoted the pine-tree “Appeal to Heaven” flag, which was among the banners flown at the “Stop the Steal” rally on Jan. 6, 2021 — and which, by total and remarkable coincidence, was proudly displayed outside Johnson’s congressional office.

The article noted that remarks by the event’s speakers and award recipients included: a man who proposed that gay people should be forced to wear labels across their foreheads, a woman who blamed gay people for Noah’s flood and other natural disasters, and forthright adherents of “dominionist” theology, which holds that the United States should be governed under biblical law by Christians.

“I’ll tell you a secret, since media is not here,” Johnson teased the group, unaware that his hosts were streaming video of the event. Johnson informed his audience that God “had been speaking to me” about becoming speaker, communicating “very specifically,” in fact, waking him at night and giving him “plans and procedures.”

God, you see, is taking Johnson across our “Red Sea moment” to the promised land. Unfortunately, as the article noted,

In 11 months as speaker, Johnson has led the House Republicans not to the promised land but into deeper water, where they have been thrashing, splashing and dog paddling without end. Johnson inherited a dysfunctional House GOP majority from Speaker Kevin McCarthy — the first in history to be ousted midterm — and managed to make it even worse by catering to the whims of former president Donald Trump even more than his predecessor had.

Milbank proceeded to remind readers just how dysfunctional this Congress has been, noting that It is “on course to be the do-nothingest since 1859-1861 — when the Union was dissolving.” It’s one thing to be a “do-nothing” legislative body, but as Milbank notes, Johnson’s House “isn’t merely unproductive; it is positively lunatic.”

Republicans have filled their committee hearings and their bills with white nationalist attacks on racial diversity and immigrants, attempts to ban abortion and to expand access to the sort of guns used in mass shootings, incessant harassment of LGBTQ Americans, and even routine potshots at the U.S. military. They insulted each other’s private parts, accused each other of sexual and financial crimes, and scuffled with each other in the Capitol basement. They screamed “Bullshit!” at President Joe Biden during the State of the Union address. They stood up for the Confederacy and used their official powers to spread conspiracy theories about the “Deep State.” Some even lent credence to the idea that there has been a century-old Deep State coverup of space aliens, with possible involvement by Mussolini and the Vatican. 

What about the bills this sorry assemblage has passed? Well, they did manage to enact the Refrigerator Freedom Act, the Gas Stove Protection and Freedom Act and the Stop Unaffordable Dishwasher Standards (SUDS) Act.  Milbank notes that on at least seven occasions, House Republicans even voted down their own leadership’s routine attempts to begin floor debates.

These people are not serious policymakers. They are performative wannabe’s–think Marjorie Taylor Greene or Jim Jordan or Jim Banks and several others–all of whom profess to be Christian Nationalists, and all of whom are playing to a MAGA base that is disproportionately Christian Nationalist, uninterested in policy, and dismissive of constitutional principles.

Christian Nationalism isn’t just a threat to our future. It is a threat to America in the here and now.

In November, we need to purge it from our governing institutions.

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I Know Facts Don’t Matter…

In a recent column, Jennifer Rubin took on the “big lie” of 2024, Trump’s insistence that “millions” of illegal immigrants vote in American elections. This assertion is manifestly untrue, and self-evidently an effort to lay the groundwork for another excuse for losing an election. As Rubin noted,

Undocumented immigrant voting has never been an actual problem. “On the heels of Trump’s first campaign for president in 2016, the Brennan Center for Justice examined about 23.5 million votes in 42 jurisdictions, looking for evidence of the illegal voting by noncitizens that Trump had claimed was prevalent,” Axios reported. “It found about 30 suspected illegal votes.” Likewise, the libertarian Cato Institute debunked a bogus study in 2020 attempting to show that large number of undocumented immigrants voted.

The column reported on additional studies concluding that non-citizen voting (which has always been illegal) is vanishingly rare–and when it occurs, is usually due to a mistake rather than an improper motive.

American opposition to immigration isn’t simply racist/xenophobic–it is economically suicidal. Some years back, I did some research on the subject in preparation for a speech. Here’s some of what I found:

Immigrants make up about 14% of the U.S. population; more than 43 million people. Together with their children, they are about 27% of us. Of that number, approximately 11 million are undocumented. Individuals who fly in and overstay their visas  outnumber those who cross the border.

Immigrants were 17% of the U.S. workforce in 2014; two-thirds of those were here legally. Collectively, they were 45% of domestic workers, 36% of manufacturing workers, and 33% of agricultural workers.

What about the repeated claims that immigrants are a drain on the economy? The data unequivocally shows otherwise.  Undocumented immigrants pay billions of dollars into Social Security for benefits they will never receive. These are people working on faked social security cards; employers deduct the social security payments and send them to the government, but because the numbers aren’t connected to actual accounts, the worker cannot access their contributions. The Social Security system has grown increasingly—and dangerously–reliant on that revenue; in 2010, the system’s chief actuary estimated that undocumented immigrants contributed roughly 12 billion dollars to the program.

Approximately half of undocumented workers pay income taxes, but all of them pay sales and property taxes. In 2010, those state and local taxes amounted to approximately 10.6 billion dollars.

By far the most significant impact of immigration, however, has been on innovation and economic growth. The Partnership for a New American Economy issued a research report in 2010: key findings included the fact that more than 40% of Fortune 500 companies were founded by immigrants or their children. Collectively, companies founded by immigrants and their children employ more than 10 million people worldwide; and the revenue they generate is greater than the GDP of every country in the world except the U.S., China and Japan.

The names of those companies are familiar to most of us: Intel, EBay, Google, Tesla, Apple, You Tube, Pay Pal, Yahoo, Nordstrom, Comcast, Proctor and Gamble, Elizabeth Arden, Huffington Post. A 2012 report found that immigrants are more than twice as likely to start a business as native-born Americans. As of 2011, one in ten Americans was employed by an immigrant-run business.

I did my research several years ago. More recently, the Institute on Tax and Economic Policy has studied taxation of undocumented immigrants. Among their findings:

Undocumented immigrants paid $96.7 billion in federal, state, and local taxes in 2022. Most of that amount, $59.4 billion, was paid to the federal government while the remaining $37.3 billion was paid to state and local governments.,

For every 1 million undocumented immigrants who reside in the country, public services receive $8.9 billion in additional tax revenue.

More than a third of the tax dollars paid by undocumented immigrants go toward payroll taxes dedicated to funding programs that these workers are barred from accessing. Undocumented immigrants paid $25.7 billion in Social Security taxes, $6.4 billion in Medicare taxes, and $1.8 billion in unemployment insurance taxes in 2022.

At the state and local levels, slightly less than half (46 percent, or $15.1 billion) of the tax payments made by undocumented immigrants are through sales and excise taxes levied on their purchases. Most other payments are made through property taxes, such as those levied on homeowners and renters (31 percent, or $10.4 billion), or through personal and business income taxes (21 percent, or $7.0 billion).

Income tax payments by undocumented immigrants are affected by laws that require them to pay more than otherwise similarly situated U.S. citizens. Undocumented immigrants are often barred from receiving meaningful tax credits and sometimes do not claim refunds they are owed due to lack of awareness, concern about their immigration status, or insufficient access to tax preparation assistance.

None of this matters to the White Supremacists whose hatred of “those people” –and whose willingness to lie about them–outweighs the facts.

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