A No-Win Choice

The Washington Post recently ran a story about the 91-year old Republican woman who is a plaintiff in the Colorado case that removed Donald Trump from that state’s ballot.

In one way, the piece was just one more reminder of how very far today’s GOP is from the political party it used to be. The woman being profiled, Norma Anderson, was described as a trailblazing former GOP legislator, and she joins people like Liz Cheney and other “Never Trumpers” in reminding us that what is on display these days is a very far cry from both conservatism and what the Grand Old Party used to be.

But that article is only one commentary on a critically-important and unprecedented issue: should Trump be barred from the ballot under the very clear language of Section 3 of the 14th Amendment?

That Section reads as follows:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Guardian was among several media outlets that have reported on an amicus brief filed with the Supreme Court by some of this nation’s most eminent historians. Twenty-five historians of the civil war and Reconstruction argued in support of the Colorado decision to remove Trump from the ballot.

“For historians,” the group wrote, “contemporary evidence from the decision-makers who sponsored, backed, and voted for the 14th amendment [ratified in 1868] is most probative. Analysis of this evidence demonstrates that decision-makers crafted section three to cover the president and to create an enduring check on insurrection, requiring no additional action from Congress.”

Sean Wilentz of Princeton is a well-regarded historian who did not participate in the Supreme Court brief, but he too has dismissed arguments for allowing Trump to remain on the ballot.

“By their reasoning,” Wilentz writes, “Trump’s misdeeds aside, enforcement of the 14th amendment poses a greater threat to our wounded democracy than Trump’s candidacy. In the name of defending democracy, they would speciously enable the man who did the wounding and now promises to do much more.”…

 “Whether motivated by … fear of Trump’s base, a perverted sense of democratic evenhandedness, a reflexive hostility toward liberals, or something else, [commentators who say Trump should stay on the ballot] betray a basic ignorance of the relevant history and thus a misconception of what the 14th amendment actually meant and means. That history, meanwhile, has placed the conservative members of the Supreme Court in a very tight spot.”

No kidding. And they’re ducking and weaving…

“Textualists” and “original intent” devotees on the Court are faced with unambiguous language buttressed by reams of contemporaneous evidence submitted by the historians. The hearing Thursday telegraphed the Court’s reluctance to give the Fourteenth Amendment language its obviously intended effect. The decision is likely to be another nail in the coffin of this Court’s eroding legitimacy.

It’s true that a decision following the clear Constitutional language would run the risk of unleashing a violent reaction from the populists and neo-Nazis who support Trump.  Recognition of that probability has led some pundits to argue that the Court should punt–that it should “save democracy” by leaving Trump’s fate to the tender mercies of the voting public.

I understand that desire, which the Court clearly shares.

I truly believe that the likely match-up between Biden and Trump will result in a massive repudiation of Trump and his cult–that Trump’s intensifying and increasingly obvious mental decline, on top of his ignorance, narcissism and generally repulsive persona will lead to a massive rejection of the GOP at the polls. (Discount the polling averages that seem to show Trump even with or defeating Biden; as several scholars have noted, those averages include a large number of low-quality, partisan polls with which GOP propagandists have “flooded the zone.”)

It would be far more satisfying to defeat Trump at the polls, but America is facing a crucial test of our commitment to the rule of law. Are we, as John Adams famously proclaimed, a “nation of laws, not men”? Or are we a nation of scofflaws, ready to abandon rules when we find them inconvenient or unpopular?

The Court appears ready to place us among the scofflaws.

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Vote By Mail

I’ve been banging the drum for vote-by-mail for a long time. What just happened in Wisconsin demonstrates its importance, as a recent op-ed by John Hickenlooper–former Governor of Colorado–emphasizes.

The election chaos in Wisconsin on Tuesday sent a clear message: The nation can’t afford a repeat in November. Poll workers, many of them vulnerable senior citizens, and voters were forced to risk covid-19 infection to participate in American democracy, with scandalously long lines at the few polling places that were open in some areas. Gov. Tony Evers (D) had issued an executive order to reschedule the election, but Republicans fought against it and the state’s Supreme Court blocked it.

Republicans also attacked a sensible proposal by Evers to essentially turn the election into one conducted by mail, with absentee ballots sent to every registered voter. President Trump has lately chimed in with criticism that mail-in balloting is “horrible,” “corrupt” and invites “fraud.”

As Hickenlooper says, Colorado’s experience rebuts the GOP’s hysterical pushback.  Colorado wasn’t the first state to go to vote by mail (Oregon and Washington were first), but its citizens have been voting from home for six years. Eligible Colorado voters receive a ballot in the mail roughly three weeks before Election Day, giving them time to do research on candidates and ballot initiatives. They complete the ballot from the comfort of their own homes, and either mail the ballot in or deposit it at one of hundreds of drop-off locations around the state.

Denver city and county voters even have the ability to track the status of their ballots, with email or text notifications, as they travel through the postal system. The “Ballot TRACE” software ensures that every mailed ballot is accounted for.

So what about those predictions of fraud?

The states that vote by mail have devised numerous safeguards against fraud. Colorado conducts rigorous risk-limiting audits; it also maintains a centralized database with voter signatures, and it tracks ballot returns. And as Hickenlooper points out, a big advantage of using mailed ballots is that paper can’t be hacked.

Other advantages? Higher turnouts (Oregon’s turnout puts Indiana’s to shame and in Colorado, the increase was particularly noticeable for “low propensity” populations) and significantly lower costs–Hickenlooper says Colorado saved $6 per voter.

It isn’t just Oregon, Washington and Colorado; other states have been moving in this direction. Voters in 28 of Utah’s 29 counties automatically get ballots at home. Nebraska and North Dakota also use vote by mail to varying degrees. Nearly half of the states allow some elections to be conducted by mail, and many allow voters to cast no-excuse absentee ballots.

The reason the GOP is so adamantly opposed to vote-by-mail is obvious: it increases turnout, and Democrats win when turnout increases. Turnout this November will be especially important. As I wrote in the wake of the Supreme Court’s shameful decision allowing gerrymandering to continue, we will need a citizen tsunami sufficient to overcome the blatantly rigged districts the Supreme Court has declined to rule unconstitutional.

Huge turnouts would be likely to do more than just eject the corrupt and unfit Trump Administration. A large enough turnout could wrest control of the Senate from McConnell, and clean out large numbers of the GOP’s state and local enablers. If that tsunami is big enough, it might even allow old-fashioned Republicans appalled and dispirited by what the GOP has become to retake their party from the white nationalists who have captured it.

If that doesn’t happen…history will record Mitch McConnell’s capture of the Supreme Court  and the GOP’s unhindered voter suppression as a successful coup d’etat.

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I Don’t Think That Word Means What You Think It Means…

Not every policy change is a reform, and I’m getting more than a little annoyed by efforts to paint things like tax cuts and voucher programs as “reforms.”

I’ve explained in previous posts why the abominable tax bill currently being rushed through Congress isn’t “reform.”  In several states, including Indiana, theocrats intent upon taking tax dollars from public school systems and directing those dollars to religious schools have employed a similar tactic, cloaking those efforts in the rhetoric of “educational reform.”

Betsy DeVos has frequently referred to one such program, in a county in Colorado, in glowing terms, so it was really satisfying to learn the results of a recent school board election in that county.

On Tuesday night, the longstanding fight over a controversial voucher program in Douglas County, Colorado, appeared to have come to an end. In a local school board election that has found its way into the national debate over voucher programs, four anti-voucher candidates—Chris Schor, Kevin Leung, Anthony Graziano, and Krista Holtzmann—defeated reform-supporting candidates in a landslide.

According to the story in Mother Jones, Douglas County is one of the wealthiest counties in the country. The school district is large, with 67,000 students.

As Politico has put it, the county “has gone further than any district in the nation to reshape public education into a competitive, free-market enterprise.” Since 2009, the board has successfully ended a collective bargaining agreement with the local teachers union and enacted a “pay for performance” salary system for teachers.

Its most controversial move, though, came in 2011, when it approved a sweeping school voucher program that aimed to give up to 500 students publicly-funded scholarships to attend participating private schools. The county’s voucher program was the first district-created program in the country. Ninety-three percent of the pilot class of scholarship recipients enrolled in religious schools, according to court documents. It sparked outcry from those who argued that it was a diversion of public money away from public schools. Over the next few years, the suburban district in many ways become a model for conservatives looking to reform education nationwide and the group of reform-minded board members received support from national right-wing groups like the Koch brothers’ Americans for Prosperity.

That generous financial support kept pro-voucher commissioners on the school board until an election in 2015, when three members were ousted by opponents of the program. The Board was still majority pro-voucher, 4-3, but their power was weakened.

This month, after a campaign that saw hundreds of thousands of dollars pour in from the Koch brothers, a Republican political committee on behalf of pro-voucher candidates and the teachers’ union on behalf of the anti-voucher candidates, the anti-voucher candidates swept to decisive victories in all seven races.

That voters were not swayed by the influx of money and rejected the voucher program was a great outcome. But here’s my beef. A spokesperson for the winning slate was quoted as follows:

“Students at every school, students at every grade level and students with varying needs, all of them won tonight because our schools can now continue the return to excellence that began two years ago, after it became clear that reform had failed our children.”

Reform didn’t fail. An effort to enrich religious schools at the expense of public ones failed.

If I learned one thing in law school and in the practice, it was this: he who frames the issue wins the debate. When political activists accept the other side’s framing, they are agreeing to fight on the other guy’s turf.

The word “reform” denotes improvement. Tax cuts for rich people at the expense of middle-class Americans isn’t “reform.” Robbing public schools in order to benefit religious schools isn’t “reform.” In both cases, it’s theft, and with respect to vouchers, it’s an effort to circumvent the First Amendment’s Separation of Church and State.

Call it what it is.

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Poverty and Contraception

The New York Times began a recent article as follows:

Over the past six years, Colorado has conducted one of the largest experiments with long-acting birth control. If teenagers and poor women were offered free intrauterine devices and implants that prevent pregnancy for years, state officials asked, would those women choose them?

They did in a big way, and the results were startling. The birthrate among teenagers across the state plunged by 40 percent from 2009 to 2013, while their rate of abortions fell by 42 percent, according to the Colorado Department of Public Health and Environment. There was a similar decline in births for another group particularly vulnerable to unplanned pregnancies: unmarried women under 25 who have not finished high school.

Isabel Sawhill, an economist at the Brookings Institution has argued in her 2014 book, “Generation Unbound: Drifting Into Sex and Parenthood Without Marriage,” that single parenthood is a principal driver of inequality, and that long-acting birth control is a powerful tool to prevent it.

The program in Colorado was originally funded by a grant from the Susan Buffett Foundation, but as I have previously noted, that grant has now run out.

The state’s health department has estimated that every dollar spent on the long-acting birth control initiative saved $5.85 for the state’s Medicaid program, which covers more than three-quarters of teenage pregnancies and births. Enrollment in the federal nutrition program for women with young children also declined by nearly a quarter between 2010 and 2013.

It works. It saves tax dollars, and it saves young women’s futures.

So of course, the Colorado legislature has declined to fund the program. The only hope for continuation of the program is the Affordable Care Act–aka Obamacare.

As I said in my previous post, if these lawmakers were really “pro-life,” they would support programs that substantially and demonstrably reduce the incidence of abortion.

If.

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Tell Me Again How There’s No War on Women…or Common Sense

This makes me crazy.

The Nation reports:

In 2009, the Susan Thompson Buffett Foundation donated over $23 million to the Colorado Family Planning Initiative, a five-year experimental program that offered low-income teenage girls and young women in the state long-acting reversible contraceptives (LARCs)—IUDs or hormonal implants—at no cost. These devices, which require no further action once inserted and remain effective for years, are by far the best method of birth control available, with less than a 1 percent failure rate. (The real-use failure rate for the Pill is 10 times higher.) One reason more women don’t use LARCs is cost: While they save the patient money over time, the up-front price can be as high as $1,200. (Even when insurance covers them, many teens fear the claim forms sent to their parents would reveal they are sexually active.)

So–this sounds great, right? And the results?

The results were staggering: a 40 percent decline in teen births, and a 34 percent decline in teen abortions. And for every dollar spent on the program, the state saved $5.85 in short-term Medicaid costs, in addition to other cost reductions and the enormous social benefit of freeing low-income teens from unwanted pregnancies and what too often follows: dropping out of school, unready motherhood, and poverty.

In June, the original grant will run out, so the state legislature had to decide whether to continue funding the program. One would think continued funding for so successful a program would be uncontroversial–but one would be reckoning without today’s GOP.  After the bill providing  funding passed the Democrat-controlled House, Senate Republicans killed it.

And what were the highly principled reasons for refusing to continue a program that reduced teen pregnancies, reduced abortions, and saved money? According to Republican State Senator Kevin Lundberg, using an IUD could mean “stopping a small child from implanting.”

Besides, teenagers shouldn’t be having sex. “We’re providing this long-term birth control and telling girls, ‘You don’t have to worry. You’re covered,’” said Representative Kathleen Conti. “That does allow a lot of young ladies to go out there and look for love in all the wrong places.” (Because the fear of pregnancy has worked so well to keep girls virginal.)

Let me amend that “War on Women” accusation. These moral scolds aren’t waging war against women, they are waging war against women having sex. Especially sex without “consequences.”

If these lawmakers were really “pro-life,” they would support programs that substantially and demonstrably reduce the incidence of abortion.

As this travesty in Colorado clearly shows, however, their real objective is to punish women. Preferably, at taxpayer expense.

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