Excellent Advice

Last Tuesday, Jamelle Bouie had a truly useful column in the New York Times.

On this blog, I cite and link to a wide variety of opinion and research, mostly because I’m sharing information I consider interesting, factual and important. It is much rarer to come across information that is both illuminating and practical– useful.

Bouie began with a prediction that won’t surprise anyone who hasn’t been in a coma for the past four years: if the first returns on election night show him even slightly ahead, Trump will declare victory and have his minions doing everything they can to stymie the counting of additional, mail-in ballots. (In 2018, as the results of absentee ballots came in, the Democrats’ advantage grew substantially–what had looked like an anemic victory turned into a blue wave.) Recent research confirms that–for reasons that remain obscure–later counted votes have routinely benefitted Democrats.

If Trump is leading on election night, in other words, there’s a good chance he’ll try to disrupt and delegitimize the counting process. That way, if Joe Biden pulls ahead in the days (or weeks) after voting ends — if we experience a “blue shift” like the one in 2018, in which the Democratic majority in the House grew as votes came in — the president will have given himself grounds to reject the outcome as “fake news.”

Unlike the pundits who simply point out the ways in which disaster might strike in November, however, Bouie proposes a remedy; he tells us what we can do to avoid that disaster.

The only way to prevent this scenario, or at least, rob it of the oxygen it needs to burn, is to deliver an election night lead to Biden. This means voting in person. No, not everyone will be able to do that. But if you plan to vote against Trump and can take appropriate precautions, then some kind of hand delivery — going to the polls or bringing your mail-in ballot to a “drop box” — will be the best way to protect your vote from the president’s concerted attempt to undermine the election for his benefit.

Here in Indiana, our Republican Governor and Secretary of State  have thus far refused to allow no-excuse absentee voting. But thanks to previous lawsuits brought by Common Cause, we have a reasonable number of satellite voting locations, and we have 28 days of early voting. My husband and I had already decided that we would “mask up” and (as usual) vote early in person.

As Bouie reports, and we all know, Trump is increasingly desperate to hold on to power. If the polls are even close to correct, he probably can’t win a fair fight.

His solution, then, is to do everything in his power to hinder the opposition and either win an Electoral College majority or claim victory before all the votes have been counted.

A key element of Trump’s strategy is to undermine the Postal Service’s ability to deliver and collect mail. The president’s postmaster general has removed experienced officials, implemented cuts and raised postage rates for ballots mailed to voters, increasing the cost if states want the post office to prioritize election mail. And Politico reports that Trump’s aides and advisers in the White House have been searching for ways to curb mail-in voting through executive action, “from directing the Postal Service to not deliver certain ballots to stopping local officials from counting them after Election Day.”

The polls also reflect a huge partisan split on the issue of mail-in voting, with 54 percent of Biden supporters preferring  mail compared to only 17 percent of Trump supporters. If those percentages are reflected in the early returns, Bouie’s election-night scenario becomes terrifyingly possible.

The best defense for the president’s political opponents is, if possible, to vote in person. For some, this will mean going to the polls in November, in the middle of flu season, when the spread of Covid-19 may worsen. In most states, however, there are multiple ways to cast or hand in a ballot. Every state offers some form of early or absentee voting, and 33 states — including swing states like Arizona and Wisconsin — allow absentee voting without an excuse. Trump supports absentee voting — it’s how his older supporters in Florida vote — and his opponents should take advantage of the fact that those systems won’t be under the same kind of attack. Many vote-by-mail states also offer drop boxes so that voters can deliver ballots directly to the registrar. And if you must mail in your ballot, the best practice would be to post it as early as possible, to account for potential delays.

The best possible outcome would be a massive election-night repudiation of Trump and his enablers–so massive that it leaves no room for doubt that the majority of Americans want to begin the hard work of repairing the incalculable damage  done to both our institutions and Americans’ self-respect.

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An Un-sedated Colonoscopy

Gail Collins is one of my very favorite columnists. Lately, I have especially enjoyed her weekly “Conversations” with Bret Stephens. Collins is liberal and Stephens is conservative-but-not-batshit-insane, so their Monday Times discussions have been both informative and entertaining.

We can all use some entertainment these days, so I thought I’d share some “highlights” from Monday the 10th.

The linked column  began with a discussion of Trump’s recent speech to his golf club buddies. Both Collins and Stephens agreed that this “allegedly presidential speech” was really just a campaign rant about Joe Biden —” interspersed with reminders that the virus and everything that followed in its wake is ‘China’s fault.'”

Stephens pointed out that the President’s recent “Executive Orders” were unconstitutional (only Congress controls the nation’s purse). That was followed by the following exchange:

Gail: Before I had to listen to him address the nation via his cheering golf partners, I was going to ask you how far the Trump terribleness had driven you. We talk all the time about our mutual desire to clean out the White House. But what about the Senate? Are you rooting for a Republican majority? For Mitch McConnell? For Susan Collins? Tell all.

Bret Stephens: Gail, when it comes to Donald Trump’s Republican Party, I’m a reluctant member of the “destroy-the-village-in-order-to-save-it” school. Obviously I’d much rather see Susan Collins keep her seat than Mitch McConnell keep his post as majority leader, for the same reason that I want moderate Republicans to prevail within the party.

But the most important thing is for the G.O.P. to take such a shellacking in November that they will remember it as the political equivalent of an unsedated colonoscopy.

The thought of handing today’s iteration of the GOP the equivalent of an un-sedated colonoscopy cheered me immensely. I could almost forgive Stephens for some of what I consider his retrograde policy positions.

Stephens followed that zinger up with a good summary of what (the few remaining) rational, unTrumpian Republicans find so unacceptable in this administration:

The kind of Republican Party that didn’t think the term “family values” meant an enrichment scheme for Trump’s children and in-laws; that believed in the power of immigrants to refresh and reinvent the nation; that understood that Vladimir Putin and Kim Jong-un were the enemy, not Nancy Pelosi and Chuck Schumer; that respected federalism even if it meant deferring to the wishes of Democratic governors and mayors; and that worshiped at the political altars of Abraham Lincoln and Teddy Roosevelt, as opposed to P.T. Barnum and Archie Bunker.

Later, he excoriated the Trump supporters–the “Mark Levin types whose default setting is certitude and fury. And Sean Hannity types whose default is obsequiousness and fury. And Tucker Carlson types whose … ” Well, you know.

And– in yet another bodily reference– Stephens noted that

The only good thing that might have come from putting a libertine at the head of the G.O.P. was to get the party to unconstipate itself. And he couldn’t even get that right.

The column became more serious with a discussion of potential Biden running mates, and then concluded with the following exchange:

Gail: Whenever we get on this subject a wave of sadness overtakes me. Still yearning for Elizabeth Warren. But really, anybody who’s part of a change of administration would be OK by me in the long run. One thing I have to give Trump credit for is a general lowering of expectations.

Bret: Gail, rest assured that before the year is out he’ll lower them some more.

I keep thinking about that initial description of what is needed in November: a defeat that Republicans would experience as an un-sedated Colonoscopy.

Believe it or not, I know a lot of formerly dependable GOP voters who would be happy to contribute to such a defeat, if they thought it would lead to a resurrection of the party they had originally joined.

Personally, I’m with the guy in one of those “former Republican” ads who says he’d vote for a can of tomato soup if it would deliver the country from the chaos of Trump. It reminded me of my sister’s declaration that she’d vote for toenail fungus over Trump.

Our job is to make sure everyone who feels that way casts a vote, and that it gets counted!

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Ladies And Gentlemen, I Give You Today’s GOP

Yesterday, Joe Biden announced that Kamala Harris would be his running mate.

Harris is a walking, talking embodiment of the America that so terrifies white nationalists: an Indian mother, a Jamaican father, a Jewish husband. She’s also a whip-smart lawyer and a seasoned public servant. Harris is one of a new generation of highly accomplished, very diverse Democrats–and by “diverse” I don’t simply mean that their ranks include many men and women of color; they are also ideologically, religiously and geographically diverse.

Then there are the Republicans.

Yesterday also saw primary elections in a number of states. In one of those, in Georgia, a white loony-toons conspiracy theorist handily  won the GOP nod for Congress. (In all fairness, it was a female loony-toons conspiracy theorist, so maybe that’s progress.)

Conspiracy theorists won a major victory on Tuesday as a Republican supporter of the convoluted pro-Trump movement QAnon triumphed in her House primary runoff election in Georgia, all but ensuring that she will represent a deep-red district in Congress.

The ascension of Marjorie Taylor Greene, who embraces a conspiracy theory that the F.B.I. has labeled a potential domestic terrorism threat, came as six states held primary and runoff elections on Tuesday.

Greene has also made a series of videos in which she complains of an “Islamic invasion,”  claims Black and Hispanic men are held back by “gangs and dealing drugs,” and pushes an anti-Semitic conspiracy theory. After her win was announced, Trump gave her his “full-thoated support.”

The Brookings Institution , as well as the FBI, has confirmed that (despite Trump’s rants about “antifa” and Black Lives Matter) members of white supremacist organizations and adherents of widespread conspiracy theories like QAnon (largely embraced by white nationalists) are responsible for most of the terrorist attacks in the U.S.

In the last four years, violence linked to white supremacy has eclipsed jihadi violence as the predominant form of terrorism in the United States. Beyond high-profile terrorist attacks in the United States like the 2018 Tree of Life synagogue and 2019 El Paso Walmart shootings, white supremacists have also tried to seize on the protests following George Floyd’s death to foment chaos.

In the Georgia GOP primary, Ms. Greene defeated a neurosurgeon described as “no less conservative or pro-Trump.” She held a lead of nearly 15 percentage points early Wednesday.

The New York Times story, linked above, reported that Greene’s victory “is likely to unsettle mainstream Republicans.”  But there really aren’t many–if any– “mainstream” Republicans left, a reality that seemed to escape the authors of the report (and continues to escape most of the Times political reporters).

The reality–especially painful for those of us who spent years working for a very different Republican Party–is that Donald Trump is not an anomaly, and today’s GOP is no longer a political party connected to a set of governing principles and policies. Today, to be a member of what is now the GOP cult is to adopt a tribal identity –an identity characterized by white grievance and a furious rejection of scientific, demographic and moral reality.

Not to mention sanity.

QAnon is a wild, unfounded belief that Donald Trump, of all people, is waging a secret war against elite Satan-worshipping pedophiles in government, business and the media–a war that will lead to a day of reckoning on which prominent people like Hillary Clinton will be arrested and executed. A troubling percentage of today’s GOP base believes it.

I keep thinking back to that great–and prescient– speech from the 1995 movie An American President, when Michael Douglas, playing the President, thunders

We have serious problems to solve, and we need serious people to solve them. And whatever your particular problem is, I promise you, Bob Rumson is not the least bit interested in solving it. He is interested in two things, and two things only: making you afraid of it, and telling you who’s to blame for it. 

Today’s Republican Party has become a cult composed of lightly-tethered-to-reality know-nothings who have uncritically and enthusiastically embraced the party’s only consistent, remaining message:  “You should fear ‘those people’ –the ones who don’t look or worship like real (i.e.white Christian) Americans. They are to blame for all of your problems and disappointments.” 

And so it goes….

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Hate Clicking

Welcome to the Resistance!

A few days ago, in a comment to this blog, Norris Lineweaver posted a link to an article from Medium, describing “hate clicking”--a mechanism employed primarily (at least, so far) by young, technically-savvy people, but available to everyone who has a computer. It falls into a category that Pew calls “digital disruption.”

The rest of the country got a hint of the possibilities when young people used their social media skills to artificially inflate the Trump campaign’s count of registrations for the Tulsa rally. The campaign flaunted the phony numbers, boasting that it reflected the President’s popularity–and vastly increasing media attention to the actual, pathetic turnout.

The article notes the Trump campaign’s expensive, aggressive online presence, and its enormous number of  paid online advertisements. It also points out that these ads aren’t really about soliciting votes; they are intended to generate data that can then be used for purposes of fundraising and merchandise sales. And as the author also reminds us, industry practice is generally to charge by the click. Each time an ad is clicked it costs the advertiser anywhere from a few pennies to a few dollars.

Here is where you come in. Every day (and up to a couple times a day) Google “Trump” or “Trump Store” or “MAGA Hat” or something similar and then click on the ad links. Look for the ones that say “Ad” next to them, those are the ones they are paying for.

If thousands of us do this a few times a day it will increase the campaign’s online ad spend while producing nothing of value for them. It is probably not helpful to refresh and click again more than a handful of times per day because online advertising platforms often filter out repetitive frequent clicks from the same computers and don’t bill for them.

The article then goes into considerable detail about the most effective ways to click and distort the data being gathered, while costing the campaign extra money.

There you have it. Easy peasy. As someone who’s spent a few days doing this, I can say that it feels good to throw a wrench in Trump’s historic investment in digital advertising. Yes, it does mean looking at it a bit more than I’d like, but the fact that it’s costing them money — that holy grail of human virtue from Trump’s point of view — makes it worthwhile.

The author cautions that this tactic is not intended to take the place of the other important ways to get involved in the upcoming election. He does not recommend “hate clicking” as a replacement for phone banking, voter registration, or donating money–as he says, It’s not either/or. It’s both/and.

But for those of us who feel angry and powerless when we read about Trump’s interminable assaults on competent government and the rule of law, the prospect of using the “down time” required by the pandemic to actually do something is a gift.

I still remember when–back at the dawn of the Internet Age–many of us thought the World Wide Web would improve democratic (small-d) participation. We failed to anticipate the extent to which this new medium would disseminate hate, misinformation and propaganda, and actually set back the cause of thoughtful democratic deliberation.

It has been very demoralizing.

This report on “hate clicking”–in addition to offering a tool for political action that I hadn’t previously considered–offers something else: a suggestion that, as the medium matures (along with a generation for which its possibilities are intuitive), it may fulfill at least part of that original promise.

For good or ill, it may increase participation.

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Qualified Immunity

Putting aside for the time being the unfortunately-labeled effort to “defund the police,” we should definitely consider other steps that might be taken to return a measure of accountability to the nation’s police departments.

We might begin by repealing–or at least significantly narrowing–the doctrine of Qualified Immunity.

A bit of background: The Ku Klux Klan Act of 1871 was a Reconstruction era-effort to address what one court termed the “reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” That law is now  known to practicing lawyers–especially civil rights lawyers– as Section 1983. It  gives citizens the right to sue state and local officials for depriving them of their constitutional rights, and to collect damages and legal fees if they prevail.

As Ruth Marcus recently wrote in a column for the Washington Post,  that’s great, except for the fact that the Supreme Court began to eviscerate the law more than 50 years ago with a doctrine dubbed “qualified immunity.” As the judge in one recent case has noted, it might just as well be called “absolute immunity.”

Nothing in the text of the 1871 statute provides for immunity — not a single word — but the court imported common-law protections in 1967 to shield officials operating in good faith.

Then, in 1982, it went further. To be held liable, it’s not enough to prove that a police officer violated someone’s constitutional rights; the right must be so “clearly established” that “every reasonable official would have understood that what he is doing violates that right.” There must be a case on point, except that how can there be a case on point if there wasn’t one already in existence. This is Catch-22 meets Section 1983.

Numerous justices across the ideological spectrum — Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, Sonia Sotomayor — have criticized the doctrine. But the court has appeared unwilling to do anything about it. As its term concluded, the court refused to hear any of the eight cases offering it the opportunity to reconsider the doctrine.

 Lawsuits for damages are a crucial method for protecting everyone’s constitutional rights. Qualified immunity–protection against a damages verdict– is what lawyers call “an affirmative defense”–it can prevent the court from assessing damages even if the officer clearly committed unlawful acts.

A case from 1982, Harlow v. Fitzgerald established the modern application of the doctrine. Ignoring precedents that examined the “subjective good faith” of the officer being sued, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Ever since Harlow, the court has required plaintiffs to cite to an already existing judicial decision with substantially similar facts.

As a result, as one lawyer recently wrote, “the first person to litigate a specific harm is out of luck” since the “first time around, the right violated won’t be ‘clearly established.’” As a post on Lawfare explained,

A recent decision by the U.S. Court of Appeals for the Ninth Circuit illustrates this point. In that case, a SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. And while the divided three-judge panel assumed that the SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted qualified immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.”

Justice Sonia Sotomayor has called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” Her criticism– in an opinion which Justice Ruth Bader Ginsburg joined– pointed out that the doctrine “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

It is past time for this doctrine to be dramatically limited. It is bad law and worse policy, and it insulates reckless police from the consequences of obviously wrongful behavior.

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