James.galbraith

Mitch McConnell has shown them the way. They can do it, and they must do it.

Mississippi is an interesting state, in all the wrong ways. The last time the state was exit polled, during the 2008 presidential election, only 11% of white voters voted for President Barack Obama, his second lowest percentage in the nation. (Only Alabama was worse, at 10%.) 

Of course, Democrats do poorly in general, seen as the party of Black people. John Kerry in 2004 only managed 18% of the white vote. Still, the state’s toplines aren’t that lopsided. Obama only lost the state by 11 and 12 points. 

This isn’t the year Democrats make the state competitive. It’s still way too racist. But we wanted to know, is the under-the-radar Senate race competitive? 

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Civiqs polled 507 likely voters in Mississippi October 23-26, with a MoE of 5%. 

Democratic performance has moved roughly 8-10 points in the Democrats’ direction nationally, but apparently Mississippi is an exception. Biden is only getting 18% among white voters, continuing the party’s difficulties with the deplorable crowd. 

The results look like 2016, which makes any Senate race a real tough slog. 

In 2018, these same two candidates faced off, and Hyde-Smith won 54-46. It was a solid Democratic year, so people were skeptical that he could manage to keep it that close in a presidential year, with the racist Trump vote all goosed up and motivated to vote. Still, that was the first time since 1978 that Democrats had done better than a 14-point loss.

Well, the margin is an identical eight points, despite Trump’s 14-point lead at the top of the ticket. The difference is independent voters, which Espy is winning 52-39, better than Biden’s 47-43 lead. 

There isn’t much early vote in the state (only around 60,000 votes in a state that will likely turn out around 1.1 million voters). Still, Black voter registration has been up. You might remember this asshole: 

"I'm concerned about voter registration in Mississippi," Gail Welch, an elections commissioner in Jones County, Mississippi wrote. "The blacks are having lots [of] events for voter registration. People in Mississippi have to get involved, too."

And overall, no state is more efficient at suppressing the vote than Mississippi. 

Today, voters in Mississippi face a series of government-created barriers that make it, according to a study in the Election Law Journal in 2018, far and away the most difficult state in which to vote.

Mississippi has broad restrictions on absentee voting, no early voting or online registration, absentee ballots that must be witnessed by notaries and voter ID laws that overwhelmingly affect the poor and minorities, since they are less likely to have state-approved identification. The restrictions have grown even tighter since a 2013 Supreme Court decision blocked many voting rights protections.

A nationwide voting-rights bill could have a huge impact in this state, enfranchising the 16% of the Black population prohibiting former felons from voting. It could remove barriers to absentee and mail voting. It could remove the very restrictions that have ensured that Mississippi hasn’t had a single statewide Black elected official in 132 years, despite having the largest Black population in the country (37.8%). 

But it is that solid base that could, enfranchised and with minimal white support, turn Mississippi purple. The state’s racist Republicans will fight tooth and nail to prevent that from happening. It is our own moral imperative to take up this fight. 

Holy shit, this new Civiqs poll of Georgia…

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This is Civiqs’ third and final poll of Georgia this election cycle, and was conducted over the weekend, 10/23-26. 

If you’re looking for a historical example of a revanchist political minority that kept its foot on the neck of a growing and restive majority, look no further than the defenders of slavery in antebellum America. In the interest of keeping Black people in a state of intergenerational servitude, pro-slavery politicians in the antebellum period trampled flagrantly and frequently on the civil liberties not only of Black Americans, but of white people who opposed slavery’s expansion. They shut down the right of abolitionists to use the U.S. Postal Service and the halls of Congress to proselytize against the Peculiar Institution. They deployed violence and voter fraud to rig elections. To maintain property in human beings, they perverted the institutions of American democracy.

It wasn’t until the Civil War, when many of those pro-slavery politicians rebelled to fight for the Confederacy, that the anti-slavery Republicans had their chance to reverse the damage. And they did it by playing hardball.

With Southern Democrats absent from Congress and their northern pro-slavery allies reduced to a shadow of their former power, anti-slavery Republicans pursued a bold, majoritarian agenda that remade the nation in the North’s free-labor image. After decades of violent obstruction from the slaveholding minority, they exhibited little concern for traditions and niceties. From changing the size of the Supreme Court and adding new states to the Union (partly to pad their majorities in Congress and the Electoral College), to their refusal to honor the credentials of Southern congressmen-elect who were chosen in sham midcycle elections in 1865, the Republican Party of the 1860s used hard-knuckle measures to enact a sweeping constitutional revolution that established the foundation for liberties that Americans of all races enjoy today.

These Republicans of the 1860s weren’t angels. Their motives were not uniformly pure. And they didn’t always agree with each other. But in response to decades of anti-democratic incitement by white politicians from slaveholding states, who represented roughly just 25 percent of the country’s population in 1860, Republicans in the age of Lincoln and Grant united to make the rules work for the majority, even when doing so required rewriting the rules wholesale.

It’s the playbook Democrats today should follow if they win the White House and the Congress next week.

For several decades now, modern Republicans have used every tool at their disposal—voter suppression, gerrymandering, court packing at all levels, midnight bills to curb the powers of incoming Democratic governors, parliamentary chicanery that applies different rules to presidents of each party—to ram a minoritarian agenda down the majority’s throat. How else, after all, could a party that has lost the popular vote in six of the past seven elections—and which will likely lose the eighth, already in progress—wield so much power?

If a Biden administration and the Democratic Congress are to have any chance of leveraging the authority that voters may confer on them—if they truly want to enact and protect a popular, majoritarian agenda—they should look to an earlier generation of politicians that understood the uses of power and the ends to which it could be applied. That generation didn’t quiver in the face of established procedure and precedent—and neither should Democrats today.

Slavery was first and foremost a violent crime against African Americans. But it also eroded the country’s political and social fabric. In the three decades preceding the Civil War, pro-slavery Southerners and their supporters in the North had degraded democratic institutions and flouted the rights of everyone else—white and Black—in the service of preserving the Peculiar Institution. They imposed a gag rule in the 1830s, barring antislavery Northern congressmen from presenting abolitionist petitions in the House. They remanded that the Post Office bar the delivery of abolitionist literature. They crafted a highly unpopular Fugitive Slave Act in 1850 that required Northerners to be actively complicit in detaining Black persons accused of being runaway slaves, at penalty of trial and imprisonment. In the 1850s, after they nullified the Missouri Compromise that barred slavery in certain Western territories, they deployed violence and election fraud with impunity to ram a pro-slavery state constitution through the Kansas territorial Legislature. When Charles Sumner, the fiery Masachussetts politician, dared deliver an antislavery address in the U.S. Senate, a Southern congressman beat him nearly to death.

When, in a culminating moment, 11 Southern states decided to secede rather than accept the outcome of a free and fair election, Republicans finally enjoyed an opportunity to reinvigorate democratic institutions long been under assault by the “Slave Power” and pursue a bold economic and social agenda that established a foundation for the postwar world.

From 1861 to 1865, during the Civil War years, Republicans used their majorities to pass legislation authorizing the seizure of rebels’ land and slaves; the Homestead Act, granting federal land to American families who agreed to settle and improve it; the Land Grant College Act, which conferred on each state federal acreage to support the cost of establishing public universities; legislation funding the construction of a transcontinental railroad, which promised to draw homesteaders into a national market, but which also—tragically—set in motion the violent destruction of Native American communities everywhere the iron tracks took root; and laws abolishing slavery in Washington, D.C., and the territories—and, later, everywhere in the United States. In effect, the Civil War Republicans fundamentally altered the character of American life.

Despite their supermajorities in Congress and hold on the White House, Republicans left little to chance.

Fearing the federal judiciary, whose membership skewed conservative and pro-slavery, might invalidate their legislative agenda or limit President Abraham Lincoln’s ability to prosecute the war, in 1863, Republicans added a 10th seat to the Supreme Court.

There was strong precedent for doing so. As the country admitted new territories as states, it required additional federal circuit courts. In 1807 and 1837 Congress had enlarged the Supreme Court to keep the number of justices on par with the number of appellate courts, a practice that reflected the justices’ dual function as chief circuit judges. During the Civil War, with the population of California and other Western states growing at a steady clip, Republicans saw an opportunity to justify the creation of a new circuit and, thus, a 10th seat on the high court. But principle converged closely with politics. The court was scheduled to consider a case challenging the Union’s blockade of the Confederacy; if the justices ruled against Lincoln, their decision threatened to cripple the war effort. They intended to pad their slim majority.

The governing party also restructured the shape of the circuit courts to dilute the influence of pro-slavery judges and create new vacancies for Lincoln to fill, with the advice and consent of the Republcan-controlled Senate.

In other ways, too, Lincoln and his congressional allies threw sharp elbows. In 1864, the president introduced his Ten Percent Plan, which extended an offer of amnesty to all Southerners who would pledge allegiance to the United States and invited any state that could muster up enough such loyal men, equal to 10 percent of those who had voted in 1860, to form a new state government and send representatives to Congress. Radicals introduced their own plan, which required a 50 percent threshold and a stronger, “iron-clad” oath that few Confederates could meet, but Lincoln pocket vetoed their bill. He wanted a lower bar for readmission, not because he was soft on treason, but to foster political dissent and chaos behind enemy lines. He also wanted to create (on paper, at least) newly reconstituted Southern states—led by men loyal to the Union—that could cast Electoral College votes for the Republican ticket and help ratify the 13th Amendment abolishing slavery. Ultimately, the reconstituted but hardly reconstructed states of Louisiana, Tennessee and Arkansas—which were readmitted under Lincoln’s terms—approved the abolition amendment before the president’s death

In the same way, when the western counties of Virginia—largely populated by white yeoman farmers who held the state’s slaveholding elite in bitter contempt—declared their independence from the Confederacy, congressional Republicans passed legislation, which Lincoln signed, admitting them as the new state West Virginia in 1863. A year later, they made the sparsely populated Nevada territory a state. Thus the party gained four new U.S. senators, a reliable slate of presidential electors and a support for a broad assault on slavery.

Lincoln’s death complicated matters. In what was surely his worst decision in public life, the president had replaced Vice President Hannibal Hamlin, a reliable antislavery politician, with Andrew Johnson, a deeply insecure white supremacist from Tennessee who had remained loyal to the Union, but whose sympathies lay with his native South. The next four years witnessed acrimonious conflict between a revanchist, racist president and a Republican supermajority that repeatedly overrode his vetoes and governed over his head.

Between Lincoln’s death in April 1865 and the opening session of the new Congress that December, Johnson unilaterally readmitted Southern states and invited them to hold elections. This, despite their widespread enactment of “Black Codes” that reintroduced slavery in all but name—impressing free Black children into “apprenticeships,” proscribing the right of Black persons to free expression and assembly, barring ex-slaves from owning guns and compelling them to sign labor contracts that bound them to their former owners. Adding insult to injury, the Southern states sent a slate of prominent ex-Confederates to Congress, including Alexander Stephens, the former Confederate vice president who arrived in Washington that winter as a senator-elect from Georgia. In Johnson’s mind, the war was over and slavery dead, at least on paper; the rebellious states should be welcomed back to their prior relationship with the federal government immediately.

But congressional Republicans viewed matters otherwise. They saw an unreconstructed minority refusing to accept its defeat. On December 4, 1865, amid widespread anticipation of the impending political crisis, the newly arrived members of the 39th Congress descended on the Capitol for the opening session. At noon, the House clerk, Edward McPherson, a former two-term congressman and protégé of Thaddeus Stevens, stepped up to the rostrum and gaveled the House into session. Stevens, “the radical leader, if not dictator, of the House,” by one member’s estimation, served as chairman of the Ways and Means Committee, a position akin in the 1860s to majority leader. An uncompromising opponent of slavery and unforgiving foe of slaveholders, he cut an austere figure. Stevens instructed McPherson to skip the names of the Southern members-elect as he read the roll call. When a Northern Democrat rose to intercede on behalf of Congressman-elect Horace Maynard of Tennessee, Stevens replied tartly that all motions were out of order pending election of a new speaker. “I cannot yield to any gentleman who does not belong to this body—who is an outsider,” he remarked. The House flat-out refused to accept the credentials of the Southern members-elect, as did the Senate. The non-congressmen packed up their bags and went home.

Over the next 3½ years, the Republican Congress overrode Johnson’s vetoes to enact legislation enshrining civil rights for freedmen and splicing the former Confederate states into five military districts. Until Southern states accepted the 13th Amendment abolishing slavery and the 14th Amendment, establishing a broad swath of civil rights for all natural born citizens, including freedmen—and until they established new state governments on the basis of universal male suffrage—they would remain under martial law and go unrepresented in Washington.

Republicans invoked a number of justifications for their procedural and policy measures. Stevens held that the Confederate states were “conquered provinces” whose citizens had forfeited their citizenship rights. Charles Sumner, the radical senator from Massachusetts, held that Southerners had committed “state suicide.” But most Republicans hung their hats on a section of the Constitution that “guarantee[s] to every State in this Union a Republican Form of Government.” If loyal white persons and Black freedmen were denied their right to property, free expression and assembly—if elections were marred by fraud, violence and disenfranchisement—Congress had an obligation to intervene on their behalf.

Governing in opposition to Johnson, the Republican supermajorities in Congress bent the system as far as it would go. Fearing the new president might pack the judiciary with loyalists, in 1866 they once again changed the composition of the Supreme Court, eliminating three seats by means of attrition. The next three vacancies would go unfilled until the number of justices fell to seven, thus depriving Johnson of the power to appoint anyone to the bench. (In 1869, after Republican Ulysses S. Grant assumed the presidency, they reset the number of justices at nine, where it remains today.) They passed a constitutionally dubious act barring Johnson from dismissing Cabinet officials without congressional approval, a measure intended to protect radical War Secretary Edwin Stanton, who effectively administered the Army’s occupation of former Southern states.

In 1867, Republicans admitted another reliable western state—Nebraska (1867)—and in so doing, gained new senators and electoral votes. Beginning in the 1870s after Johnson left office, but as their hold on power began to slip, they granted statehood to a trove of thinly populated but (at the time) reliably Republican territories: Colorado, North Dakota, South Dakota, Montana, Idaho and Wyoming. They did so out of concern that the very rebels who had, in recent memory, raised arms against their country would soon regain control of the federal government.

Remarkably, these bare-knuckle mean and ends were broadly popular. In 1866, the GOP swept off-year elections, bolstering its capacity to govern over Johnson’s head. Equally of note, the party—a hotchpotch coalition of former Whigs, Democrats, Free Soilers and Know Nothings, which had been a party for only 10 years—remained fundamentally unified. Despite their pronounced differences over policy and politics, moderates like Henry Raymond and William Pitt Fessenden worked in lockstep with radicals like Stevens and Sumner. With the exception of Andrew Johnson’s impeachment trial, in which several moderates broke ranks and voted to acquit the president, on every critical vote—the Civil Rights Act of 1866, the Freedmen’s Bureau Bill, the Reconstruction Act of 1867, and the 13th, 14th and 15th Amendments to the Constitution—the alliance held.

For many years, Americans remembered Reconstruction as a failed experiment, at best—a “Tragic Era,” at worst, an “Angry Scar.” Its violent overthrow by white Southerners betrayed the early economic and political advancements of millions of freedmen who, for a brief moment in time, experienced self-government and a free labor economy, until the onset of Jim Crow stamped out their gains.

Since the 1960s, however, historians have acknowledged the era for its more lasting, if gradual, revolution. The Reconstruction amendments not only forged a basis for civil rights legislation in the 1960s, and for the legalization of abortion and marriage equality in subsequent decades. From the 1920s onward, the Supreme Court used the 14th Amendment to “incorporate” the Bill of Rights and extend its federal guarantees to the states. If you’re glad that the state of Texas or Florida is bound to respect your rights to free expression, speech and religion—your right not to incriminate yourself or face unlawful search and seizure—you have the Reconstruction-era Republicans to thank.

To be sure, we’re not living in the shadow of a Civil War. As bad as things are, they’re nowhere near as violent or divisive. But the parallels to our own era are striking. For well over a decade, Republican politicians at the state and federal levels have feverishly assaulted democratic norms and processes to advance a hard-hitting minoritarian agenda—the abolition of reproductive rights, dismantling of the Affordable Care Act, deregulation of environmental and safety standards, tax cuts for corporations and the wealthiest Americans—that is deeply unpopular. They know it’s unpopular. Which is why they’ve made it harder for people to vote; manipulated Senate rules to hold judicial seats vacant under Barack Obama, only to fill them under Donald Trump; incited domestic terrorists and extremists—Proud Boys, QAnon fanatics, the Klan and neo-Nazis—to meet lawful political assembly with violence. The president has openly flirted with nullifying the election if he doesn’t like the results. Indeed, the pro-slavery zealots of 1860 could hardly have done it better.

Democrats, should they earn a governing majority, may soon have an opportunity to restore and improve the institutions that a minoritarian party has broken piece by piece over so many years. If so, the lessons of the Reconstruction era are clear: You can’t achieve the ends if you don’t embrace the means.

To pass elements of the "Green New Deal" or protect and expand the ACA, Democrats might need to dismantle the filibuster, an anti-majoritarian instrument that threatens to scuttle the expressed will of the voters. They might have to unpack the federal courts and expand the Supreme Court by four seats, thus returning to the original standard of one justice per circuit. They’ll surely want to admit new states—Washington, D.C., and Puerto Rico, perhaps other territories—to the Union, not just because doing so will enlarge the Senate and Electoral College, but because it extends democratic rights to disenfranchised Americans who live in those place. They might even consider expanding the size of the House of Representatives to recalibrate the ratio of those governing to those being governed.

Taking a cue from Thaddeus Stevens, Democratic majorities in the House and Senate should refuse to seat members-elect whose claim to sit in Congress is compromised. In close congressional elections, if uncounted ballots lay piled up in U.S. Postal Service sorting centers, or hundreds of people were unable to vote due to 12-hour-long lines and the arbitrary rejection of absentee ballots, Nancy Pelosi and Chuck Schumer can and should invoke the constitutional guarantee of a “republican form of government.” Make the offending states hold new elections—this time, properly.

If the Supreme Court—with Amy Coney Barrett newly installed—cancels out a narrow but clear Joe Biden victory by ordering officials in Pennsylvania to throw out ballots that were postmarked before, but arrived after, the election, Congress should accept the competing slate of electors that the governor, a Democrat, certifies. If state officials in Georgia repeat their egregious efforts to suppress the votes of Black citizens, the House and Senate should throw out Georgia’s entire slate of presidential electors. They should take these measures even if Biden wins the requisite 270 electoral votes elsewhere, to send a clear message: The era of minoritarian rule is over.

Biden, should he occupy the Oval Office, should appoint judges who support a reinvigoration of the Reconstruction amendments, particularly the 14th Amendment’s clause stipulating that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” Intended by its framers to create a robust federal guarantee of civil rights, the clause fell into disuse in later decades, the victim of an increasingly reactionary Supreme Court that willfully abnegated its purpose. As historian Eric Foner argued in his recent book The Second Founding, there is no reason why it shouldn’t be excavated. A rising generation of 14th Amendment “originalists” might use it to address all manner of issues, from cash bail and police excesses to environmental standards.

Few politicians in American history have understood the uses and ends of power as well as the congressional Republicans of the 1860s. Faced with an existential threat to American democracy, they stared down a violet and revanchist minority and summoned authority earned at the polls to expand the very meaning of citizenship. If next week’s elections go their way, that’s the lesson Democrats should take away.

An Arizona realtor has been fired from his job and arrested for disorderly conduct after telling two black men who were filming a YouTube video that his neighborhood is a “n***er-free zone.”

In the clip, which has gone viral on social media, the Scottsdale man, identified as Paul Ng, tells YouTuber Dre Abram, “I am a racist” and “this is a no n***er zone.”

View this post on Instagram

While trying to record #BossTalk !! This is what happened!! One wrong move… and That’s On Benola L May .

A post shared by It’s Dre Baby! AZ (@lilajdre) on Oct 23, 2020 at 10:00am PDT

News12 reports: “Records show Scottsdale Police arrested Paul Ng, who is now facing disorderly conduct charges. … Police records show Ng told police he was concerned about riots and the safety of his family. He told police he ‘keeps an eye on the neighborhood’ and said the entire incident with Dre was ‘unusual.’ When an officer asked Ng if he understood his comments could be provoking and insulting, records show Ng responded by asking if the police thought the statements were ‘inflammatory.’  Ng told police he didn’t intend to be inflammatory. The police report goes on to say that Ng stated he used the terminology that he did ‘because Dre ‘inflamed’ him when Dre`s insinuation was that Scottsdale was full of ‘white racists.” Ng also lost his job at Russ Lyon Sotheby’s Real Estate Agency in Scottsdale.”

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I’m posting this to protect not only myself, but also my good friend and camera man @itschief.kane ! He experienced this encounter aswell, and will proceed to seek JUSTICE!! – – PAUL NG!!! We have his location, we also know that he has been terminated from his Independent Contract. – – However, he is a Real Estate Investor. Meaning this is SOMEONE’S LANDLORD!!! ABSOLUTELY FUCKING NOT!!! He will not receive a DIME from a MINORITY! ESPECIALLY NOT FOR AN NECESSITY – – Please spread this to any Black Individual!! I know what we should have did PHYSICALLY!! But as a CULTURE, we must learn a better response! We are owed IN THIS COUNTRY! But, we will NEVER receive what’s ours if WE DO NOT FIND A BETTER WAY!! – – The Time Is Now!! I NEED EVERYONE WATCHING THIS!! HELP!!

A post shared by It’s Dre Baby! AZ (@lilajdre) on Oct 25, 2020 at 4:14pm PDT

The post Realtor Fired and Arrested After Telling Black Men His Neighborhood is a ‘No N***er Zone’ — WATCH appeared first on Towleroad Gay News.

We’ve all met them (or read about them). That dumb gay person who chooses to attend Circuit Party super spreader events amid a pandemic, justifies it because it’s “Gay Pride” but then, when election time comes says they’re not voting, not registered, even when it’s their rights that are on the line in the election.

And if you haven’t met them, have a look at Michael Henry’s latest sketch.

The post Would You Kick This Man Out of Your Bed for Not Voting? — WATCH appeared first on Towleroad Gay News.

A doctor, who is taking part in a clinical trial for a Covid-19 vaccine, receives an injection in Worcester, Massachusetts, on September 4. | Craig F. Walker/The Boston Globe/Getty Images

Experts say local and state governments need more time and resources to scale up vaccination efforts.

Early results from the two leading US Covid-19 vaccine trials are expected in November, in what will likely be a major milestone in the race to end the pandemic.

The final leg of the race, however, will be actually getting people vaccinated.

The US Centers for Disease Control and Prevention (CDC) has offered guidance on jurisdictions’ plans, and has given them a deadline of November 1 to be ready to roll out a potential vaccine (a timeline administration officials assert is unrelated to the November 3 election).

Will health departments be ready to distribute a vaccine by then?

“Probably not, if you mean completely ready,” says William Schaffner, a professor of preventive medicine and infectious diseases at Vanderbilt University Medical Center, who also serves as a consultant to the Tennessee Department of Health. “Are they working hard? Absolutely.”

No matter when it commences, a nationwide vaccine administration effort will require a massive workforce of health professionals (who are already in short supply and are often already working on other Covid-19 responses). It also may require costly medical-grade freezers to keep vaccine doses at supercold temperatures — or lots and lots of dry ice. And it needs a robust new data management system to track who gets which vaccine when and where, particularly if vaccines require multiple doses to be effective, and if there ends up being more than one approved vaccine.

The trouble is, states and local health departments have not received funding from Congress to make any of this happen. This “makes it nearly impossible to do what you need to be doing at this stage of the game if your go date is November 1,” says Adriane Casalotti, head of government affairs for the National Association of City and County Health Officials (NACCHO).

Like many things in the pandemic, it didn’t have to be this way, she says. “This is one of the few areas of Covid-19 where we can plan in advance, where we don’t have to build the plane while flying it.” She adds that although their group has been asking the federal government for support for distribution since early vaccine research began, “now it’s late.”

To be sure, there will not be enough vaccine to immunize 328 million people right away, which simplifies logistics somewhat. And many experts are expecting it will be the end of this year or the beginning of 2021 before the first doses are available. (Health and Human Services Secretary Alex Azar recently said there might be enough doses to vaccinate health care workers, first responders, and seniors by the end of January, with some doses arriving sooner.)

But even with a relatively modest beginning (and we’re still talking about tens of millions of people), public health workers want to make sure they have plans and systems in place, rather than rushing to meet a deadline, Schaffner points out. “The government is antsy about getting things started, but most health departments are saying, ‘Whether I start vaccination this week or next week doesn’t matter so much because this is going to be going on for eight months,’” he says.

Let’s take a closer look at the challenges facing the vaccine rollout and how the government could help things get on track sooner rather than later.

Health experts say they need billions of dollars to be ready; the federal government hasn’t promised any money

State health departments were asked in late September to submit their proposed vaccine rollout plans to the CDC by October 16. For this task, the federal government distributed $200 million, which was split among the states, major metropolitan areas, and US territories.

Not only did this mean relatively little funds for each of the 64 jurisdictions (states, territories, and major cities), Casalotti notes, but it also did not guarantee any funding would reach the thousands of smaller local health departments around the country, which is where much of the on-the-ground work of preparing to get people vaccinated will take place.

More importantly, the government has yet to promise any money to support actually building out these plans and helping the health organizations be ready when the vaccines are.

A well-coordinated, well-supported effort by health departments to vaccinate the US population will likely cost at least $8.4 billion, according to an October 1 letter NACCHO sent to Congress requesting that much be appropriated for the effort. And other public health groups, including the Association of State and Territorial Health Offices (ASTHO), agree.

CDC Director Robert Redfield put the number slightly lower, but still in the billions. In a congressional subcommittee meeting in mid-September, Redfield said the CDC would need $6 billion to help states and localities adequately prepare to distribute a potential vaccine.

But the federal government still has not said if it will fund the effort, or how much it will allocate to vaccine distribution and administration.

“That needs to change soon, or that’s going to be a limiting step,” says Marcus Plescia, chief medical officer for ASTHO. “It’s great that we have an opportunity to plan for some element of the Covid-19 response, because so far we’ve just been reacting.”

Health officials are hoping a new, broad Covid-19 relief package, approved by Congress, will include funds earmarked specifically for vaccine distribution readiness. And soon. “That would mean we could finally be really prepared, and we could finally get a step ahead of things,” Plescia says.

Craig F. Walker/The Boston Globe/Getty Images

If the federal government doesn’t step up, would states and localities be able to? Experts we spoke with agree that the funds need to come from the top. The first reason for this is logistical. With local and state budgets tapped out from pandemic response and lost revenue — and unable to run deficits — the federal government remains the only level of government that could bankroll this effort.

The second reason has to do with equity. “We’ve seen throughout the pandemic response when we’re not working as a nation, it’s really hard for us to make any ground,” Casalotti says. For a vaccine rollout to be most effective, it needs to be supported at a national level, she notes. “People travel, and what happens across state borders can directly impact your community. The virus doesn’t care about jurisdictional boundaries.”

If states and localities are left to somehow support vaccine deployment, the results are going to be uneven, and likely accentuate disparities the pandemic has already laid bare, she says.

“It really has to come from federal sources,” concludes Plescia.

Major unknowns remain, making preparations even more difficult

Planning a national vaccine rollout is a sizable ask, but it is also happening in the midst of major continued uncertainties — and not just about funding. This has left state and local health departments scrambling to prepare as best they can. “They’re not only planning, but they have to plan for several different contingencies,” Schaffner says.

One big unknown is which vaccine or vaccines will be approved and distributed first. This matters in part because many have different requirements, such as extreme cold chains. If health departments need to keep vaccine doses in storage way below zero, as some front-running candidates require, that will necessitate medical-grade freezers.

“You’re not going to find those freezers in pharmacies and doctors’ offices,” Schaffner says. Nor are they “something you can just run down to the hardware store and buy,” Casalotti adds.

So if thousands of vaccine locations around the country are ordering these freezers at the same time — on an expedited timeline — it is possible there could be a shortage.

Or if there is not a shortage, they could follow the path many other pandemic specialty supplies have: With such a sudden increase in demand, there could also be a drastic price increase. This would throw another wrench in even the best-laid plans. It’s quite possible, Casalotti says, for example, that health departments could already have established how many freezers they will need, and where they will procure them, but then encounter a new price, many times higher due to the surge in demand.

The federal government has the ability to step in and prevent this sort of price gouging. Although “we haven’t seen those tools deployed” in previous instances of this during the pandemic, Casalotti says.

Pfizer’s vaccine candidate, which is among those leading the race to approval, requires temperatures of about -94 degrees Fahrenheit (and even then is only stable there for about 10 days). To address this challenge in distribution, it has devised a freezer alternative, in which the vaccine vials can be stored in specially designed boxes filled with dry ice. Although these boxes will need to have their dry ice replenished during storage, which means that “all of our states have been spending a lot of time sorting out their dry ice supplies,” Plescia says.

Chandan Khanna/AFP/Getty Images

Even this workaround might not prove to be a solution for everyone. Dry ice isn’t readily available everywhere, such as in some US territories, notes Plescia. And a shortage in the carbon dioxide supply has made it hard for some dry ice makers to keep up with demand. So Plescia hopes that even if a vaccine requiring drastic cold storage is approved first, a less temperamental one will not be far behind.

Another big unknown is precisely who will get the vaccine first and when. The CDC’s Advisory Committee on Immunization Practices, which Schaffner also helps advise, is working on finalizing this rubric for who will get the vaccine first. But they might not be able to complete their work until it’s known what vaccine or vaccines will be approved.

Many expect that health care workers and first responders will be first to receive an approved vaccine, which aligns with an assessment put out by the National Academy of Medicine in September and the CDC’s interim playbook for states. (President Trump, at an October 16 stop in Florida, claimed inaccurately that “seniors will be the first in line for the vaccine.” The CDC has listed those 65 and older — along with others at higher risk for severe Covid-19, and essential workers — in the second half of the first phase for vaccination, although this could change based on the results of the ongoing vaccine trials.)

Vaccinating health workers first would also give those working on vaccine distribution a slightly gentler start. As Plescia notes, this population would generally be easy to reach and follow up with through their employers, and tend to be in favor of vaccinations in general.

If this prioritization group does come first, he is optimistic about the possibility of health departments being equipped to provide these early doses when they become available. “I think being ready for that is not overly ambitious, and as we roll that out, we start to learn more and gives us a little more time to be ready to do it in community settings — those are the things that are going to require more capacity and more planning, and just more people,” he says.

What distribution might look like after that is fuzzier, making it hard for health departments to plan logistics, but also communication.

Local health departments are eager for the federal government to take on the job of clear messaging once these priority groups get established.

If local health departments are in charge of telling their communities who gets priority for the vaccine, “that’s just putting local health departments in a really hard position as people are looking at who is at the front of the line and who is at the back of the line,” Casalotti says. And animosity toward health departments has already been building, resulting in reluctance to participate in contact tracing efforts and even, in some cases, threats of violence, she notes.

So she asks for “clear messages from the top that we’re all in this together, and not everyone is in prioritization group 1 — and that’s okay because we, as a nation, are all going to get through this.”

Health departments will need time to get staff and systems up and running

One clear challenge in being ready to vaccinate millions of people as quickly as possible is having enough well-trained workers to give those shots. Hiring people to give shots in a public health setting is challenging even in the best of times, Casalotti says. The pay tends to not be that great and the hours can be hard. Not only that, but much of this available workforce has already been hired out to other much-needed positions, like those in hospitals, she notes.

There are also procedural considerations. “In most governmental structures, you can’t get a million dollars on Monday and hire people on Friday,” Schaffner says. “You have to go through a laborious administrative process to post openings, make sure they are available to everybody, interview applicants — and this all takes time.” And after they get hired, they still need to be trained before they can get to work.

Mario Tama/Getty Images

Public health departments and other locations will also likely need to acquire additional ancillary supplies, such as PPE and other items that are already in high demand in the midst of the pandemic and flu season.

“We can be all ready to go and have planned perfectly and have our people in place and our capacity built, and then we run out of PPE,” Plescia says. He worries about that, he says, because “that supply still doesn’t seem to be secure.” And shortages, as we saw earlier in the pandemic, lead to unequal distribution, in which larger and wealthier states can procure more supplies.

There is also the little-discussed — but critical — issue of data infrastructure. As a country, we have a patchwork method for tracking vaccinations. For most adult vaccines, only the patient and office or clinic receive records about a given dose. (As Schaffner jokes, “When my father-in-law lived in New Hampshire, and spent time in Tennessee, then spent winters in Florida, I was his vaccine registry, I told his doctors. It worked fine for my father-in-law, but I can’t do that for everybody.”) Even pediatric vaccinations are usually logged just on a state-level basis. (And still the CDC encourages parents and caretakers to be in charge of tracking their child’s vaccines themselves.)

So the idea of states and localities tying into a robust national vaccine tracking program — and on short order — is daunting, but crucial. Especially with many leading candidate vaccines requiring multiple doses, and different time spans between doses.

And this information will have to flow easily among vaccine administration sites across the country in close to real-time. “We have to have a good ability to track people and know who got the initial dose, and we need to be able to do that across state lines,” Plescia says. “If someone got the first dose in Florida and moves to South Carolina, we need to see what they got.” Even beyond that sort of rapid record look-up, health workers will also need a way to get in touch with people to remind them to get their second dose in the right time frame, he says. One candidate vaccine has a 21-day space between doses; another is 28 days.

“It would be good to go ahead and have the funding so we can start building those systems,” Plescia says.

And not only that, Casalotti says, “we need time to make sure those systems are interoperable, and to train the users in how to employ them. And, frankly, we don’t have the time.”

“The marathon continues”

For many health departments, support from the federal government can’t come soon enough. Despite asking the federal government for vaccine distribution guidance and funding since this spring, Casalotti says they have still wound up behind the eight-ball. “We have ended up in a position where we no longer have the luxury of time. Now we’re behind.”

Additionally, many local health departments still hadn’t recovered from the budget cuts of the 2008 recession, and now a number of them have faced further budget reductions and have had to furlough staff. “That is certainly not what you want to be doing when you know you’re going to be in the middle of a pandemic,” she says.

In the meantime, the CDC has been directed to transfer $300 million from its budget to the public affairs office at its parent agency, the Department of Health and Human Services, Redfield said in a September 16 Senate subcommittee hearing. At least $250 million of that has been allotted for a massive public relations campaign “to defeat despair and inspire hope,” with the bulk of the funds to be used before January.

Some of this could be used toward general vaccine safety education and information, but experts are dubious that will be the case. “I haven’t seen that this program would be addressing this issue,” Casalotti says.

She asks for support from the federal government in reminding people that even after the first round of vaccine doses is distributed, the pandemic lifestyle will be here to stay for most people for quite a while. “The marathon continues, and we’re all running it whether we want to or not.”

Other public health experts are also looking to the federal government for a unified message and response. “This is a pandemic; it’s a national issue,” Schaffner says. “We have not had a coherent, sustained response to Covid-19 from the beginning. Every public health person I know of thinks we need it. This has to be largely directed and funded from a federal level. This is akin to disaster assistance. Sure, the locals go to work, but you really have to deal with this from a federal level. This is a hurricane that’s hit all 50 states.”

Katherine Harmon Courage is a freelance science journalist and author of Cultured and Octopus! Find her on Twitter at @KHCourage.

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The Peanuts gang celebrates Halloween in the beloved special It’s the Great Pumpkin, Charlie Brown. | Walt Disney Television via Getty Images Photo Archives

Streaming TV is artificially creating scarcity where none exists. That choice hurts viewers.

Each October for more than half a century, the beloved Peanuts Halloween special It’s the Great Pumpkin, Charlie Brown has risen out of the pumpkin patch of TV programming and aired for free on a broadcast network, making it accessible to almost everyone. But that probably won’t happen in 2020 — for the first time since the special debuted in 1966.

In a deal unexpectedly announced last week, AppleTV+ revealed that it has acquired the streaming rights to at least three of the classic Peanuts holiday specials, including Great Pumpkin. It’s still not entirely clear whether the streaming rights to these specials are exclusive to Apple indefinitely, but all signs point to that being the case.

Considering that AppleTV+ is the home to new Peanuts content — like the streaming series Snoopy in Space — this new deal comes as only a mild surprise. But it likely also means that Great Pumpkin, A Charlie Brown Thanksgiving, and A Charlie Brown Christmas will no longer air on ABC, their broadcast home since 2001. (The specials aired on CBS from 1966 to 2000.)

Perhaps sensing that lots and lots of people will be angry if these beloved specials disappear behind a paywall forever, AppleTV+ will make It’s the Great Pumpkin, Charlie Brown available for free through the AppleTV+ app from October 30 through November 1 (as long as you download the app, you don’t even need to subscribe). Similar two-day windows will apply to the Thanksgiving and Christmas specials.

And as a big-time Peanuts fan who is an AppleTV+ subscriber (well, I have a press account), I should theoretically be just fine with this news. It’s great that I can watch these cherished specials on demand, without having to dig out my DVDs. But I feel a certain amount of sadness that these seemingly eternal holiday traditions are suddenly not as accessible as they used to be, because they probably won’t air on a major broadcast TV network. It’s just the latest example of the television world creating walled gardens that are, by definition, closed off to those who can’t pay to access them.

It’s the Great Pumpkin, Charlie Brown will be free for two days. But AppleTV+ doesn’t have the same imperatives as ABC to keep it that way.

Walt Disney Television via Getty Images Photo Archives

The big advantage of streaming television is that you can watch it whenever you want. In recent years, ABC has aired It’s the Great Pumpkin, Charlie Brown twice each October, but if you didn’t catch it (or DVR it) one of those two times, you were out of luck until the next year, unless you purchased the DVD. (The special was frequently also available on certain on-demand platforms, but that availability varied by cable company and wasn’t accessible to anyone who watched TV via antenna, without a cable subscription.)

If you subscribe to AppleTV+ you can watch Great Pumpkin as many times as you want this Halloween without fear. Even if you don’t subscribe to AppleTV+, you’ll have the option to spend all of October 30 and 31 watching it over and over and over again, to your heart’s content, assuming you’ve downloaded the app somewhere.

This limited availability window sort of replicates the special’s seasonal availability on broadcast TV; a similar availability window will apply to the Thanksgiving and Christmas Peanuts specials as well (A Charlie Brown Thanksgiving, for instance, will debut on November 18 and stream through November 27 for AppleTV+ subscribers; from November 25 through the November 27, it will be free to stream for anyone who has the app).

But the big disadvantage to AppleTV+ having the rights to the Peanuts holiday specials is that the service is not under the same obligations as ABC is to keep them available to the public. ABC is, by definition, a broadcast network. If you are able to get a US TV signal — even for free, via an antenna — you will almost certainly be able to get ABC. That fact will always be true. Thus, as long as the Peanuts specials aired on ABC, nearly everybody in the US had access to them.

AppleTV+ can make no such promises about access to its content. Sure, the Peanuts holiday specials will be widely available for free for a limited time this year, and Apple will surely continue using this approach as a marketing tactic for at least a few more years, as it tries to convince consumers it has a streaming service they might want to sample. But there’s nothing stopping Apple from just deciding, whenever it wants, to stop offering a free distribution window. It could even reverse its decision this year, without much explanation or warning (that is unlikely to happen, but it could).

The future of entertainment is a future of artificially created scarcity

Peter Mountain/WireImage

If you’re over age 30, you likely have experienced media consumption across your lifetime as a slow progression of availability. In your childhood, something like It’s the Great Pumpkin, Charlie Brown only aired one or two times at Halloween, unless you taped it on VHS. But eventually, you were able to purchase a DVD or Blu-ray to watch whenever you wanted, or you could DVR the special when it aired and save it on your hard drive. This progression has created an expectation among many people, including me, that we’ll eventually reach a period where everything is available all of the time, at least if you’re willing to pay for it.

And at first, the streaming era seemed like it might actually make everything available all of the time. (This idea ignores that the vast majority of films and TV shows across history never actually made it to DVD, much less streaming, but stay with me here.) In recent years, if something wasn’t streaming on Netflix, Hulu, or Prime Video, you could usually rent it on Amazon or iTunes. And that’s still typically true, but it’s less and less true with every passing year.

Today, the value of exclusivity is such that it creates the impetus to put walls around popular programming, so that you can only see it if you subscribe to a certain streaming service. This impetus seems more and more likely to send us right back to an era where something like It’s the Great Pumpkin, Charlie Brown is solely available to the vast majority of people for a small portion of October. Instead of scarcity created by a broadcast network having only so many time slots to fill on its schedule, scarcity is created artificially to boost subscription numbers and app downloads. It’s the Great Pumpkin, Charlie Brown might just be a harbinger of what’s to come in that regard.

Yes, you can still buy the special on DVD or Blu-ray. But ownership of physical media players in the US has been plummeting in recent years, and it’s barely above 50 percent among the youngest adults in the country. As more and more people adopt streaming and digital media as their default, “buy the DVD” (or rent it from the library) increasingly won’t be an option. And even purchasing a digital copy of a film or TV show isn’t a sure thing, as your rights to those purchased copies can be revoked at any time and are subject to similarly confusing availability restrictions. (For instance, I just tried to buy Great Pumpkin on Amazon, but it’s not currently available there.)

And that’s before you get to the confusion that results from streaming rights bouncing among multiple services. For instance, earlier this year, the streaming rights for the Harry Potter movies were sold extremely briefly to HBO Max, which hosted the films exclusively from late May to mid-August. Then the films moved to NBCUniversal’s Peacock for a month (which began October 5).

After the movies leave Peacock, they’ll air on NBCUniversal cable networks for a while before they come back to Peacock at some point in 2021. If you’re a hardcore Harry Potter fan, maybe think about that, because I am obligated to remind you that J.K. Rowling has taken some monstrous positions on certain political and social issues. But also: Did the movies’ streaming service shuffle make you any more likely to subscribe to either HBO Max or Peacock? Or did it just bug you? I get paid to think about this stuff, and it sure confused and irritated me!

In contrast to buying a single copy of a DVD, which you can own for the rest of your life (or at least as long as it keeps working), digital rights mean that your favorite movie or TV show might not remain readily available to you unless you subscribe to a certain platform or jump through numerous hoops to find it. So far, this situation has been mostly tenable. But as more and more streaming platforms enter the game and the movies and TV shows in their catalogs become better and better known, the content landscape will only become more cluttered and confusing, especially when it comes to beloved programs that are only available briefly or seasonally.

In January, I asked Kevin Reilly, who was the chief content officer of HBO Max until early August (when he was ousted), about the service making some of its content available only for short periods of time — particularly with regard to the massive, WarnerMedia-owned Turner Classic Movies library. His answer was telling:

There’s nothing to prevent us from [putting the entire TCM library up]. We just don’t think that’s the best experience. We actually think it’s better to allow you breadth to go in there and wander around, but to kind of allow us to work it a little bit and serve it up again in a way that [is exciting].

I don’t know how true this is. Granted, the way I tend to approach media is that if I want to watch something, it will be something incredibly specific that I want to watch now. Certainly, Reilly is right that a lot of consumers are more likely to browse their streaming service of choice until they find something that looks interesting.

But that gets less and less true the further you step away from, say, 1940s screwball comedies and toward popular franchises and established classics like the Harry Potter films or the Peanuts holiday specials. There’s value in these properties, and that value only grows if they are available for limited windows of time, which might drive you to subscribe to a streaming platform you don’t already subscribe to, because it’s the only place you can see your favorite show or movie.

I understand this is the direction the industry is trending in. I understand why it’s monetarily advantageous for giant corporations. But part of what makes movies and TV so great is that they are mass media. That can mean junky programming targeting the lowest common denominator, but it can just as easily mean something as unusual and idiosyncratic as a super melancholy newspaper comic strip about a boy and his dog becoming one of the most popular creative properties in the entire world, and being available, year after year, to the actual masses who have access to broadcast TV.

Walled gardens of content are fine when it comes to corporate bottom lines, but I’m not convinced they serve viewers by enhancing the streaming “experience.” Instead, they create confusion about what is available where and when, and they cause unnecessary headaches when you maybe just want to relax and watch Linus wait for the Great Pumpkin. The sad fact of the matter: The movement toward said walled gardens is all but impossible to stop. There’s too much money in it, and since when have corporate bottom lines cared about what’s best for consumers?

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Hovertext:
The really interesting question is whether the Internet drove this or whether a subset of all populations were suppressed cow-people.

Today's News:

Should Democrats not hand the nation a decisive victory on election day, Donald Trump has repeatedly warned that he’ll refuse to accept the results. In an opinion released Monday night on the 5-3 ruling against Democrats over Wisconsin mail-in ballots, Justice Brett Kavanaugh offered an ominous preview of how SCOTUS might rule should certain ballots be contested.

On the Wisconsin ruling, CNN reported: “Democrats in the state had asked the court to allow the counting of ballots that arrive up to six days after Election Day if they were postmarked by November 3.The ruling was 5-3, coming just before the Senate voted to add Judge Amy Coney Barrett to the Supreme Court. Justice Elena Kagan, joined by her liberal colleagues, Justices Sonia Sotomayor and Stephen Breyer, dissented from the court’s order.”

Politico reports: “Justice Brett Kavanaugh conjured up the specter of such a protracted battle as he argued in favor of allowing states to maintain firm deadlines requiring absentee ballots to be received by election officials on Election Day. … Kavanaugh also quoted a prominent law professor’s caution that allowing the election to drag out could fuel claims of foul play.”

Wrote Kavanaugh: “Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”

Politico also notes that Kavanaugh quoted NYU professor Richard Pildes, who wrote: “Late-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result. If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode. The longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen.”

Trump tweeted this shortly after the SCOTUS opinion was released.

Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.

— Donald J. Trump (@realDonaldTrump) October 26, 2020

Meanwhile, Wisconsin has ramped up its effort to get ballots in by election day, the NYT reports: “The Democratic Party of Wisconsin immediately announced a voter education project to alert voters that absentee ballots have to be received by 8 p.m. on Election Day, Nov. 3. ‘We’re dialing up a huge voter education campaign,’ Ben Wikler, the state party chairman, said on Twitter. The U.S. Postal Service has recommended that voters mail their ballots by Oct. 27 to ensure that they are counted.”

The post Brett Kavanaugh Echoes Trump in Worrisome Pre-Election Opinion on Mail-In Voting appeared first on Towleroad Gay News.

[The Supreme Court released its opinion about thirty minutes before now-Justice Barrett was confirmed.]

Tonight around 7:30 ET, the Supreme Court decided DNC v. Wisconsin State Legislature. Around 8:10 ET, then-Judge Barrett was confirmed. And she took the constitutional oath from Justice Thomas at the White House after 9:00 ET.  Wow! The Supreme Court usually moves at a glacial pace. But tonight, in the span of three hours, the Justices sharply fractured on a case that could affect the outcome of the election, a new Justice was confirmed, and the senior associate Justice held a late-night oath ceremony at the White House. Wow!And the Chief Justice will administer the judicial oath on Tuesday.

The timing of the confirmation and the constitutional oath were out of the Court's control.  (Query why the Chief did not administer the constitutional oath; methinks he did not want to be anywhere near the White House). But the timing of the opinion was within the Court's control.

The application to vacate the stay in this case was filed on October 14. A response was filed on October 16. And the case has been pending for nearly 10 days. Why did the opinion drop Monday evening, moments before Justice Barrett was confirmed? At first, I was a bit cynical and suspected some gamesmanship. But on further reflection, there is a far more innocuous reason.

As soon as Justice Barrett takes the judicial oath on Tuesday, she can begin to participate in the Court's business. And, she will be able to vote on any not-yet-released case. After all, a case is not final until the opinion is issued. By waiting till the last possible minute Monday evening, the Justice were able to work as hard as possible on this important case. But had they waited another day, Justice Barrett would have had to cast an immediate vote, and could have potentially altered the balance of the majority. Her colleagues spared her that initial baptism by fire.

But you better believe that Justice Barrett will have to decide how to proceed on an election case very soon.

:claireface:

President Donald Trump greets Supreme Court Justice Neil Gorsuch as Supreme Justice Brett Kavanaugh looks on ahead of the State of the Union address in the chamber of the U.S. House of Representatives on February 04, 2020 in Washington, DC.  | Mario Tama/Getty Images

The Supreme Court’s new decision on Wisconsin mail-in ballots threatens a century of voting rights law.

The Supreme Court just handed down an order in Democratic National Committee v. Wisconsin State Legislature determining that a lower federal court should not have extended the deadline for Wisconsin voters to cast ballots by mail.

The ruling, which was decided by a 5-3 vote along party lines, is not especially surprising. The lower court determined that an extension was necessary to ensure that voters could cast their ballot during a pandemic, but the Court has repeatedly emphasized that federal courts should defer to state officials’ decisions about how to adapt to the pandemic. Monday night’s order in Democratic National Committee is consistent with those prior decisions urging deference.

What is surprising, however, is two concurring opinions by Justices Neil Gorsuch and Brett Kavanaugh, each of which takes aim at one of the most foundational principles of American constitutional law: the rule that the Supreme Court of the United States has the final word on questions of federal law but the highest court in each state has the final word on questions of state law.

This division of power is implicit in our very system of government. As the Supreme Court has explained, the states and the federal government coexist in a system of “dual sovereignty.” Both the federal government and the states have an independent power to make their own law, to enforce it, and to decide how their own law shall apply to individual cases.

If the Supreme Court of the United States had the power to overrule a state supreme court on a question of state law, this entire system of dual sovereignty would break down. It would mean that all state law would ultimately be subservient to the will of nine federal judges.

Nevertheless, in Democratic National Committee, both Gorsuch and Kavanaugh lash out at this very basic rule, that state supreme courts have the final say in how to interpret their state’s law, suggesting that this rule does not apply to most elections.

They also sent a loud signal, just eight days before a presidential election, that long-settled rules governing elections may now be unsettled. Republican election lawyers are undoubtedly salivating, and thinking of new attacks on voting rights that they can launch in the next week.

A potentially seismic reinterpretation of American election law

As Gorsuch notes in his concurring opinion, which is joined by Kavanaugh, the Constitution provides that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” A separate constitutional provision provides that “each State shall appoint” members of the Electoral College “in such Manner as the Legislature thereof may direct,”

According to Gorsuch, the key word in these constitutional provisions is “Legislature.” He claims that the word “Legislature” must be read in a hyper-literal way. “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” he writes.

The implications of this view are breathtaking. Just last week, the Supreme Court split 4-4 on whether to overturn a Pennsylvania Supreme Court decision that also would have allowed some mailed-in ballots that arrive after Election Day to be counted. Both Gorsuch and Kavanaugh were among the dissenters, though because there were no written opinions, neither explained why they would have thrown out the state supreme court’s decision.

We now know why. Based on Gorsuch’s reasoning in Democratic National Committee, it’s clear that both he and Kavanaugh believe the Supreme Court of the United States may overrule a state supreme court, at least when the federal justices disagree with the state supreme court’s approach to election law.

That is, simply put, not how the balance of power between federal and state courts works. It’s not how it has ever worked.

Nor is it correct that the word “legislature” should be read in the hyper-literal way Gorsuch suggests. For more than a century, the Supreme Court has understood the word “legislature,” as it is used in the relevant constitutional provisions, to refer to whatever the valid lawmaking process is within that state. As the Court held most recently in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the word “legislature” should be read “in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”

But Gorsuch’s opinion suggests that this longstanding rule may soon be gone (again, as he put it, “state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules”). State supreme courts may lose their power to enforce state constitutions that protect voting rights. State governors may lose their power to veto election laws, which would be a truly astonishing development when you consider that every state needs to draw new legislative maps in 2021, and many states have Republican legislatures and Democratic governors.

The return of Bush v. Gore

Kavanaugh, for what it’s worth, takes a slightly more moderate approach in his concurring opinion. The Supreme Court of the United States, he writes in a footnote to that opinion, may overrule a state supreme court when the state court defies “the clearly expressed intent of the legislature” in a case involving state election law.

Just how “clear” must a state court’s alleged mistake be? The answer to that is unclear. But it is clear that Kavanaugh rejects the longstanding rule that he and his fellow federal justices must always defer to state supreme courts on questions of state law.

That position could also have profound implications. In 2018, for example, the Pennsylvania Supreme Court struck down gerrymandered maps drawn by the GOP-controlled state legislature. Kavanaugh’s position would allow the Republican-controlled Supreme Court of the United States to overrule such a decision.

Kavanaugh also lifts much of his reasoning from a disreputable source. Before today, the Supreme Court’s decision in Bush v. Gore (2000), which effectively handed the presidency to George W. Bush, had only been cited once in a Supreme Court opinion — and that one citation appeared in a footnote to a dissenting opinion by Justice Clarence Thomas, which was joined by no other justice.

But Kavanaugh quotes heavily from Chief Justice William Rehnquist’s concurring opinion in Bush, which also embraced an excessively literal approach to the word “legislature.” It appears that Bush v. Gore, arguably the most partisan decision in the Court’s history — and one that Kavanaugh helped litigate — is back in favor with key members of the Court.

It’s worth noting that the decision in Democratic National Committee was handed down literally as the Senate was voting to confirm incoming Justice Amy Coney Barrett, a staunch conservative who during her confirmation hearings would not commit to recusing herself from cases involving the 2020 election.

That means that last week’s decision allowing a Pennsylvania Supreme Court decision to stand could be very short-lived. That decision, after all, was 4-4, with Chief Justice John Roberts voting with the Court’s three liberals. With Barrett, the Court’s right flank may well be getting a fifth vote to toss out the state supreme court’s decision — and to order an unknown number of ballots tossed out in the process.

It’s unclear what immediate impact the decision in Democratic National Committee will have on the upcoming election. Last April, about 79,000 ballots arrived late during Wisconsin’s primary election but were counted anyway due to a lower court decision. The Supreme Court’s decision in Democratic National Committee will prevent similarly late ballots from being counted during the 2020 general election. The deadline for Wisconsin mail-in ballots to arrive is 8 pm on Election Day.

Though 79,000 ballots could easily swing an election, that’s only if it is close (in 2016, Trump won the state by a razor-thin margin of some 22,000 votes). A large enough margin could minimize the impact of the Court’s decision, and voters can ensure that their vote is counted by voting early enough.

But while this decision may not change the result of the 2020 election, its impact is still likely to be felt for years or even decades — assuming that Republicans retain their 6-3 majority on the Supreme Court. American election law has entered a chaotic new world, one where even the most basic rules are seemingly up for grabs. And the Supreme Court just sent a fairly clear signal that it may be about to light one of the most well-established rules on fire.

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It’s official: Amy Coney Barrett will be the country’s next Supreme Court justice. She was confirmed by a 52 to 48 vote margin, and will be sworn in by Justice Clarence Thomas at the White House tonight — just in time for Election Day.

Barrett’s ascension to the court was incredibly swift — her confirmation hearings started less than a month after Justice Ruth Bader Ginsburg’s death, and this is the closest to an election a Supreme Court confirmation vote has been held. Notably, though, despite this accelerated timeline, Barrett emerged relatively unscathed from her confirmation hearings. This is quite a feat considering both the partisan nature of the hearings and the looming questions over whether the rush to confirm her jeopardizes the court’s legitimacy.

Barrett’s confirmation is incredibly consequential, too, as she will likely shift the center of gravity away from Chief Justice John Roberts and toward the right edge of the court’s conservative wing, which could potentially result in rulings that are significantly outside the mainstream of public opinion.

We won’t have to wait long to see how Barrett rules, either. She faces a slew of hot-button cases right off the bat, including a dispute over religious liberty exemptions, a challenge to the Affordable Care Act and several cases involving controversial Trump administration policies — not to mention any election-related fights that make their way to the court in the next few weeks, plus the fact that Mississippi recently asked the Supreme Court to consider its 15-week abortion ban, which directly challenges Roe v. Wade.

Why Barrett is poised to remake the Supreme Court

As we’ve written before, it’s hard to know exactly how a nominee to the Supreme Court will rule until they’re actually sworn in and begin weighing in on cases. But we do have data on Barrett’s three years as a judge on the 7th U.S. Circuit Court of Appeals, and as you can see in the chart below, she was very conservative.

We looked at two separate analyses of her record on the court this month, and we found whether it was in regular opinions or in special en banc decisions in which the entire appeals court ruled together, she was consistently on the right-most edge — if not the most conservative judge on the bench. And she was especially likely to rule in a conservative direction on civil rights issues.

Those findings underscore the idea that Barrett is likely to be a reliable conservative vote on the court. And her confirmation is even more significant because she’s replacing one of the court’s stalwart liberals. If Barrett ends up being ideologically similar to Justice Samuel Alito, who is currently the second-most conservative justice on the Supreme Court, her replacement of Ginsburg could be one of the biggest ideological swings in modern court history.

In this scenario, Justice Brett Kavanaugh would replace Roberts as the court’s new median justice, which could lead to a significant rightward turn on the court, as Roberts is often the lone conservative justice to side with the liberals. He has cast several recent pivotal votes with the liberals, too, including a dispute in which the justices deadlocked 4-4 on whether to halt a Pennsylvania Supreme Court decision that allowed state officials to count ballots that arrive up to three days late. With Barrett on the court, though, Roberts would lose that “swing justice” role.

In the short term, that means election-related cases could have very different outcomes — even including a new iteration of the Pennsylvania case, which Republican officials recently brought back to the court. And in the long term, conservative legal advocates may respond by bringing even more ambitious cases, questioning long-held precedents.

The hearings could have gone much worse for Barrett — and the court

The idea of confirming anyone to replace Ginsburg before the election was quite unpopular only a few weeks ago. While it’s true that most Supreme Court confirmation hearings are pretty partisan these days, around the time Barrett was named as the nominee, a majority of Americans said they wanted the winner of the election to choose the next justice. And polling by the Economist in mid-October also found that Barrett was the most unpopular nominee in Supreme Court history.

Now, though, Americans may actually have warmed to the idea of Barrett joining the court before Election Day. According to tracking polls by Morning Consult, support for confirming Barrett rose from 37 percent when she was nominated to 51 percent after the hearings were over and a Gallup poll conducted during Barrett’s confirmation hearings found a similar result. Notably, according to that Gallup poll, this was substantially higher than the share who wanted the Senate to confirm Justice Brett Kavanaugh in 2018 (41 percent), and is even slightly higher than the support previous nominees since 1987 have received on average (48 percent).

Barrett’s confirmation wasn’t that divisive

Share of Americans who said they were or were not in favor of the Senate confirming each Supreme Court nominee

Nominee	In favor	Not in favor	No opinion
Amy Coney Barrett	51%	46%	3%
Brett Kavanaugh	41	37	22
Neil Gorsuch	45	32	23
Merrick Garland	52	29	19
Elena Kagan	46	32	22
Sonia Sotomayor	54	28	19
Samuel Alito	50	25	25
Harriet Miers	44	36	20
John Roberts	59	22	19
Ruth Bader Ginsburg	53	14	33
Clarence Thomas	52	17	31
Robert Bork	31	25	44
Average for previous nominees	48	27	25

Data was not available for Justices Stephen Breyer, David Souter, Anthony Kennedy and Douglas Ginsburg.

Source: Gallup

To be sure, this isn’t universal support for Barrett’s confirmation. Partisan opinion on her confirmation is really divided — according to Gallup, only 15 percent of Democrats wanted the Senate to vote to confirm her, for instance. A deep partisan divide in support isn’t a good sign for the court in general either, as it can reinforce perceptions that the court is itself a partisan institution. But Barrett could have emerged a lot less popular from her hearing — which is why the level of support she does enjoy is pretty notable, especially when you consider most Americans agreed that she’d push the court to the right (54 percent in that Morning Consult poll).

Barrett will be faced with highly controversial cases immediately

Barrett could be immediately faced with tough decisions, too, including voting on the fate of ballot deadlines in several states. There are a number of important or even precedent-altering cases at stake, too, and considering that the Roberts court has already been overturning more precedents with slim 5-4 majorities than any other court in modern history, that trend could further accelerate with Barrett on the court.

The day after the election, for instance, the justices will hear a case in which they’re being asked to reconsider a 30-year-old religious liberty precedent. In that case, the justices will consider whether that precedent makes it too hard for religious people to sue for exemptions. The majority opinion in that precedent-setting case, Employment Division v. Smith, was actually written by the late conservative Justice Antonin Scalia, but four of the current conservative justices have already signaled they may be willing to strike it down. Barrett could overrule it, and make it much easier for nondiscrimination provisions to be challenged by religious litigants.

And a week after the election, a case involving the constitutionality of the Affordable Care Act will come before the court, in which the justices could declare the entire law invalid. Another important signal will be whether Barrett’s presence on the court gives conservatives a fourth vote to hear a case involving Mississippi’s 15-week abortion ban, which the state attorney general described as an “ideal vehicle” for “clarifying” how the court’s precedents on abortion should be interpreted. There are also several important Trump administration policies on the docket a little later this term — including the administration’s attempt to exclude undocumented citizens from the census count used for redistricting, and whether Trump unconstitutionally commandeered Congress’s power when he diverted Defense Department funds to expand the border wall with Mexico. Given that several recent Supreme Court decisions on Trump administration policies — including an attempt to add a question about citizenship to the 2020 census — split 5-4, with Roberts casting a deciding vote with the liberals against the Trump administration, Barrett’s presence on the court could make a decision in favor of Trump more likely.⁵

Barrett made it through her confirmation hearings mostly without controversy, but we’ll see whether that lasts. It won’t take long to get a sense for just how far the Supreme Court’s conservatives are willing to go now that they hold a decisive majority for the first time in decades.

On Monday, Senate Republicans confirmed Amy Coney Barrett to the Supreme Court and in doing so have officially brought minority rule to the highest court in the land: Five of the six conservative justices—a majority of the Supreme Court—have been confirmed by senates with Republican majorities that represented fewer Americans than their corresponding Democratic minorities.

Further underscoring this development, three of those five justices—Barrett, Neil Gorsuch, and Brett Kavanaugh—were appointed by a president who lost the popular vote, while the other two—John Roberts and Samuel Alito—by a president who likewise lost the popular vote for his initial term and might never have become president without that Electoral College victory. Among the conservatives, only Clarence Thomas was both appointed by a president who won the popular vote and a Senate where the majority party represented more Americans.

It isn’t just the lack of popular support that delegitimizes this new Supreme Court majority: Republicans violated two centuries’ worth of norms to obtain it, first with their blockade of Merrick Garland nomination and now with Barrett’s rushed confirmation.

Fabricating a bogus precedent against election-year confirmations, Republicans refused to even give Garland a hearing despite the fact that there was nearly a year left in Obama's presidency. (Democrats, by contrast, had confirmed the conservative Anthony Kennedy in 1988, the last time prior to 2016 that a Supreme Court seat was vacant during an election year.) Four years after inventing reasons to torpedo Garland, Republicans then predictably turned around and confirmed Barrett a mere eight days before Election Day—and after roughly two-fifths of voters have likely already cast their ballots.

With this ill-won majority of radicals, the Supreme Court is poised to gut the rule of law, render the Voting Rights Act a dead letter, and give a green light to GOP gerrymandering and voter suppression efforts, all so that Republicans can permanently entrench minority rule at every level of government. Donald Trump himself has openly stated that he wanted Barrett on the court before the election so that its conservatives would decide the outcome in his favor. Just days ago, four justices were willing to blow up the foundation of federalism to further Republican suppression of the vote, and Barrett may soon give them a majority in the likely event that that case returns to the court—or if not, shortly thereafter.

Since 2010 elections swept them into power across the country, Republicans have passed restrictions on the right to vote in state after state, abetted by conservative judges confirmed by the very same Senate majorities the GOP has held while representing fewer Americans than Democrats. If Democrats nevertheless overcome these barriers to voting in 2020 by winning the presidency and both chambers of Congress, it may be their last chance for the foreseeable future to rescue American democracy from Republican efforts to lock in minority rule.

The radical-right majority on the Supreme Court comes with lifetime tenure, so the conservative justices may well play the long game and draw out rulings that risk sparking a public backlash that could bolster the case for reforming the courts. If they take their time with overturning Roe v. Wade, striking down Obamacare, and invalidating what remains of the Voting Rights Act, it could then be too late for Democrats to do anything about it. Democrats must therefore act before the 2022 midterms because the GOP could regain the House, Senate, or both.

It starts with eliminating the filibuster so that an empowered Congress can rebalance the Supreme Court, potentially by adding four or more justices. A fair-minded court is necessary to protect any further reforms, such as a new Voting Rights Act, statehood for Washington, D.C., and banning gerrymandering.

If Democrats fail to do so, however, Barrett and her fellow partisan activists will roll back much of the progress of the last century while making it impossible for Democrats to govern—if they're even able to win elections again in the first place. Indeed, with his party looking likely to get swept out of power next week, Senate Majority Leader Mitch McConnell has openly admitted as much. "A lot of what we’ve done over the last four years will be undone, sooner or later, by the next election," he conceded.

But regarding Barrett’s confirmation—and by extension Trump’s litany of judicial appointments at all levels—he gloated that the results of the election “won’t be able to do much about this for a long time to come.” McConnell will only be right if Democrats do not act.

Judge Amy Coney Barrett, President Donald Trump’s nominee for the US Supreme Court, meets with Senate Majority Leader Mitch McConnell (R-KY). | Susan Walsh/Getty Images

The Republican Supreme Court was brought to you by a malapportioned Senate and the Electoral College.

In 2016, President Trump lost the national popular vote to Democratic nominee Hillary Clinton. He lost it by a lot — 2,865,075 votes, to be precise.

Meanwhile, the Senate just voted to confirm Trump’s third nominee to the Supreme Court. The vote was almost entirely along party lines, with Sen. Susan Collins (R-ME) crossing over to vote with all 47 members of the Senate Democratic caucus.

Yet, while pro-Barrett senators control a majority of the Senate, they represent nowhere near a majority of the entire nation. Indeed, the senators who voted against Barrett represent 13,524,906 more people than the senators who voted for her. (I derived this figure using 2019 census estimates of each state’s population. You can check my work using this spreadsheet.)

These two numbers — 2,865,075 and 13,524,906 — should inform how we view the actions Barrett will take now that she is one of the nine most powerful judges in the country. Barrett owes her new job to two of our Constitution’s anti-democratic pathologies.

If every American’s vote counted equally in a presidential election, Hillary Clinton would be president right now and Barrett would still be a law professor at Notre Dame. And if the Senate did not give Wyoming the same number of senators as California — despite the fact that California has more than 68 times as many people as Wyoming — Barrett would not have been confirmed.

And Barrett is not unique. The first justice in American history to be nominated by a president who lost the popular vote, and confirmed by a bloc of senators who represent less than half of the country, is Neil Gorsuch, Trump’s first nominee. The second is Brett Kavanaugh, Trump’s second nominee. The third is now Barrett. That’s half of the Supreme Court seats held by Republicans.

It is likely, moreover, that the Court’s newly enlarged Republican majority will make the United States even less democratic. Republican-appointed justices severely weakened the Voting Rights Act — the primary legal safeguard against racist voter discrimination — in Shelby County v. Holder (2013) and Abbott v. Perez (2018). Just last week, the Court divided 4-4 on whether to toss out an unknown number of ballots in the pivotal state of Pennsylvania.

The Pennsylvania Republican Party, which hopes to see these ballots tossed out, has already asked the Supreme Court to take up this case again. With Barrett on the Court, the GOP may now have five votes to prevail.

And that’s just the beginning. The Supreme Court plans to hear two related cases this term, Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee, which could potentially dismantle what remains of the Voting Rights Act. At the very least, these cases are likely to weaken the nation’s protections against racist voting laws, adding to the damage done by Shelby County and Perez.

Giving states broad leeway to target Black and brown voters will also likely hamper the ability of the Democratic Party, with its multi-racial coalition, to compete for the presidency or for control of Congress.

American democracy, in other words, has slipped into a death spiral. Anti-democratic features of our Constitution enabled a party that does not enjoy majority support to gain power. That party is now entrenching its power by appointing judges who tend to be hostile to voting rights. And, as the courts hand down more and more decisions undermining the right to vote, Democrats will find it harder and harder to compete in national elections.

Democrats, however, may have a brief opportunity to pull the nation out of this death spiral. Right now, polls show Democratic presidential nominee Joe Biden favored to win his upcoming election, and Democrats are favored to gain control over both houses of Congress.

If Democrats control Congress and the White House, they can add seats to the Supreme Court or enact other judicial reform measures that can dilute the influence of judges like Barrett and even reestablish a pro-democracy majority on the nation’s highest Court.

Even in the best-case scenario for Democrats, however, there is no guarantee that they will hold onto the Senate for more than two years. Indeed, because of Senate malapportionment, Republicans stand a decent chance of regaining control of the Senate in the 2022 midterm elections — especially if a Republican Supreme Court spends the two years between now and the midterms limiting the right to vote.

Democrats, in other words, will likely need to make a very difficult decision very quickly: add seats to, or drastically reform, the Supreme Court, or risk the further entrenchment of Republican power thanks to our anti-democratic Constitution.

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How bad is the Republican Senate under Mitch McConnell? It's so bad it just handed Donald Trump—Donald Trump—one-third of the Supreme Court. Amy "Superspreader" Barrett has been confirmed on a nearly purely party-line vote, 52-47. Sen. Susan Collins, in a completely transparent bid to scrape any Democratic or independent votes that might still be up for grabs in Maine, voted with Democrats against confirmation. After, of course, she went to great pains to say this wasn't about Barrett's qualifications, but about voting this close to the election. So, you know, she wouldn't alienate any potential Republican voters who might ditch her next Tuesday.

The only other supposedly pro-choice Republican, Sen. Lisa Murkowski, was just as duplicitous. She told reporters that "I don't see her overturning the decision in Roe v. Wade based on the weighting of the reliance factors. […] I believe that she will not vote to overturn Roe v. Wade." That's exactly like Collins on her Kavanaugh vote, when she was so absolutely certain he would alway respect precedent in the Supreme Court. That lasted all of a few months. What those two seem to think is that we're stupid enough to think they are stupid enough to believe this about Trump nominees. They think we're not smart enough to know it's not about overturning Roe. It's about imposing so many restrictions on abortion that Roe exists in name only.

Here's the truth of the matter, from a Republican who's not afraid of putting his far-right extremism out there for the world to see.

Protect our lives. Protect our rights. Protect our democracy. Help take the Senate back from McConnell.  

One question we posed after the last presidential debate was, Will the presidential race tighten?

Since its peak on Oct. 19, Joe Biden’s lead over President Trump in national polls has narrowed from 10.7 percentage points to 9.4 points, while Biden’s popular vote margin in our presidential forecast also shrank from 8.4 points to 7.9 points. Although, as you can see in the chart below, Biden’s odds have been relatively stable.

So what gives? Is the race tightening? And, if it is, why is our forecast different from our national polling average?

Well, two things. First, we’re still expecting some tightening toward Trump in our forecast, so we’re pricing that in a little in our model. And second, the forecast is mostly based on state polls, which have been more consistent with an 8-point Biden lead than the 9-to-10-point Biden lead we’ve seen nationally. (Remember, if used properly, state polls give you a more accurate projection of the national popular vote than national polls do, which is why our forecast relies on them so heavily!)

But let’s unpack the latest polls conducted entirely (or mostly) after the last presidential debate to better answer that question of just how much the race is tightening. Overall, we have six national surveys and eight battleground-state polls, and on average, these 14 polls show essentially no change from before the debate.

Not much has changed since the debate

State and national polls conducted entirely (or mostly) after the Oct. 22 debate compared to the last poll from the same pollster

		Biden lead
	Pollster	Now	Before	change
MI	Gravis Marketing	+13	+9	+4
PA	Gravis Marketing	+7	+3	+4
PA	InsiderAdvantage	-3	+3	-6
PA	Reuters/Ipsos	+5	+4	+1
TX	NYT Upshot/Siena	-4	-3	-1
TX	Data for Progress	+1	+1	0
WI	Gravis Marketing	+11	+8	+3
WI	Reuters/Ipsos	+9	+8	+1
US	IBD/TIPP	+7	+5	+2
US	Morning Consult	+9	+9	0
US	Rasmussen Reports	-1	+3	-4
US	RMG Research	+7	+8	-1
US	SurveyMonkey	+6	+6	0
US	Yahoo News/YouGov	+12	+11	+1
	Average			0

Source: Polls

In fact, the post-debate polls have arguably been pretty good for Biden. Gravis Marketing, for instance, last tested Michigan, Pennsylvania and Wisconsin in July, but now finds Biden in better shape in all three states, including double-digit leads in Michigan and Wisconsin. Meanwhile, Ipsos and The New York Times Upshot/Siena College found essentially no movement in Pennsylvania, Texas and Wisconsin. Most national polls also showed little to no change. International Business Daily/TIPP’s five-day nationwide tracking poll had shown Biden declining, but it has recently found his lead back up in the high single digits.

There may have been a bit of tightening before the debate, but at this point, there doesn’t seem to be any evidence of the race tightening since the debate. In fact, only two polls found clear, negative shifts for Biden, and they both come from pollsters that might have a particular interest in casting the president’s chances in a positive light.

First, a new InsiderAdvantage survey sponsored by the Center for American Greatness, a conservative media think tank, gave Trump a 3-point lead in Pennsylvania, which marks a 6-point swing in margin from its previous poll in mid-October. We, of course, can’t discount that this might be the case, but the ideological leanings of the pollster’s sponsor do give us pause. Similarly, a national poll from Rasmussen Reports/Pulse Opinion Research found Trump ahead by 1 point, a 4-point shift from its last survey. But Rasmussen has a well-known GOP house effect, or put another way, it consistently shows better results for Republican candidates compared with other polling firms.

We choose to be very inclusive when it comes to our forecast, so we toss almost everything into the polling kitchen sink. But, on the whole, these recent polls may indicate some post-debate widening in the race rather than tightening, especially if you take the two quasi-partisan polls with a small pinch of salt (which we’d recommend).

North Dakota got $1.25 billion in federal coronavirus relief through the CARES Act—money that’s supposed to go to “necessary expenditures incurred due to the public health emergency with respect to the Coronavirus Disease 2019.” Somehow, $16 million in fracking grants is getting wedged into that category.

The fracking money, which is to go toward new oil wells at $200,000 a pop, is being repurposed from an earlier plan to plug and clean up abandoned well sites. That measure was intended to support between 300 and 550 jobs in the oil industry while reclaiming land for agricultural use, and the state categorized it as small business relief. The $66.7 million for that project was not even $20 million less than the state’s CARES Act spending on public health. The $16 million now intended for fracking is more than six times the amount the state dedicated to rental assistance, or just under half the amount the state spent on community services like child care and meal services.

North Dakota officials say they still plan to finish the well-plugging project, but that as it needs to halt for the winter when the ground freezes, subsidizing new oil wells will be the way to support jobs. Or, in translation, give a handout to the oil industry. 

New well opening hasn’t recently kept up with the 70 new wells a month it takes to maintain North Dakota’s oil production rate, but 846 wells are sitting there, drilled and not fracked—hence the fracking subsidy. Get those wells open and protect North Dakota’s main industry rather than its people.

“To take this money and use it to frack new wells is completely against the intention of what this money is supposed to be used for, which is to clean up a problem predating the Bakken,” Dakota Resource Council Executive Director Scott Skokos told The Bismarck Tribune. “If they are going to do this, it represents essentially a large bailout to the oil industry that we as an organization would oppose.”

The Supreme Court has already puts its thumb on the scales for Donald Trump and Republicans in this election through unsigned orders on their "shadow docket," ruling on everything from absentee voting to felon disenfranchisement in the states. What's particularly disturbing about it, court watchers say, is the lack of transparency. They're not "ruling" with explanatory text. They're just orders.

“This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” Nicholas Stephanopoulos, a law professor at Harvard, told The New York Times. “If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions.” These decisions—at least nine of them—come from emergency applications from states since April seeking to settle election disputes. They have been considered and issued without any oral arguments, and issued quickly from the "shadow docket" as opposed to the court's regular docket, which comprises cases that have reached the court through extensive lower court consideration and are accepted on their merits.

It's the final week, and everything is on the line. The best way to keep this election decision out of the hands of the Supreme Court is a clear win for Joe Biden and Kamala Harris on election night. Sign up with 2020 Victory to make phone calls to battleground state voters for Biden/Harris and a Democratic Senate. Phone call times are flexible, and you can also sign up for a training session if you are new to doing it.

The term “shadow docket” was coined by University of Chicago law professor William Baude in a article written in 2015. It’s defined as "a range of orders and summary decisions that defy [the court's] normal procedural regularity." These are orders often handed down with no explanation from the majority. And they have "exploded," law professor Steve Vladeck writes, in the Trump years. "Three and a half years into the Trump administration, the solicitor general has sought emergency relief—to stay a lower-court ruling or lift a lower-court stay—on 36 separate occasions, including 14 alone during the October 2019 term," Vladeck explains. "That’s in contrast to the previous 16 years—under Presidents George W. Bush and Barack Obama—when the solicitor general sought such relief eight times, or once every other year."

The Trump administration and the Roberts Court have teamed up to fast-track Trump's agenda, and it's "produced more divisions" on the court, Vladeck writes. "In the 22 cases in which the court has granted at least partial relief to the government, at least two justices have publicly noted dissents 17 times, and nine of the orders have publicly been 5-4." Shadow docket decisions don't usually reflect the vote count—not unless one of the dissenting four justices publicly notes their dissent, and dissenting judges are increasingly publicizing them. Probably because they're trying to signal that the court is in real partisan crisis.

One of those dissenting justices increasingly speaking out is Sonia Sotomayor, who warned a year ago in response to an asylum shadow docket case that the court's intervention to grant a stay pending appeal "should be an 'extraordinary' act. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. … Not long ago, the Court resisted the shortcut the Government now invites. I regret that my colleagues have not exercised the same restraint here." The case was the Supreme Court overruling a lower court's order block the Trump administration's policy preventing many Central American migrants from trying to get asylum in the U.S.

The Supreme Court has been helping Trump subvert the normal path of jurisprudence to enact his worst policies and doing it in the shadows. And now with these election cases, they're trying to help Trump stay in office. As the Times' Adam Liptak notes, "Republicans tend to win" in this recent rash of elections cases the court has rushed. Putting Amy Coney Barrett on that court gives Trump one more justice who wouldn't be bothered at all by using her supreme position to thwart the will of the people and find a way to hand the election to him.

Which means there can’t be any question on Nov. 4 that Trump has lost, and lost in a popular and electoral landslide.

An anonymous reader quotes a report from Motherboard: U.S. Customs and Border Protection is refusing to tell Congress what legal authority the agency is following to use commercially bought location data to track Americans without a warrant, according to the office of Senator Ron Wyden. The agency is buying location data from Americans all over the country, not just in border areas. The lack of disclosure around why CBP believes it does not need a warrant to use the data, as well as the Department of Homeland Security not publishing a Privacy Impact Assessment on the use of such location information, has spurred Wyden and Senators Elizabeth Warren, Sherrod Brown, Ed Markey, and Brian Schatz on Friday to ask the DHS Office of the Inspector General (DHS OIG) to investigate CBP's warrantless domestic surveillance of phones, and determine if CBP is breaking the law or engaging in abusive practices. The news highlights the increased use of app location data by U.S. government agencies. Various services take location data which is harvested from ordinary apps installed on peoples' phones around the world, repackages that, and sells access to law enforcement agencies so they can try to track groups of people or individuals. In this case, CBP has bought the location data from a firm called Venntel. "CBP officials confirmed to Senate staff that the agency is using Venntel's location database to search for information collected from phones in the United States without any kind of court order," the letter signed by Wyden and Warren, and addressed to the DHS OIG, reads. "CBP outrageously asserted that its legal analysis is privileged and therefore does not have to be shared with Congress. We disagree." As well as not obtaining court orders to query the data, CBP said it's not restricting its personnel to only using it near the border, the Wyden aide added. CBP is unable to tell what nationality a particular person is based only on the information provided by Venntel; but what the agency does know is that the Venntel data the agency is using includes the movements of people inside the United States, the Wyden aide said.

Read more of this story at Slashdot.

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M.G. Siegler, former reporter at TechCrunch and now a VC at Google Ventures, writes: [...] It seems inevitable at this point that there's going to need to be a new path forward. And that path may very well be one that looks similar to a path forged at the beginning of the business. That is, studios owning theaters. People will remember that this type of vertical integration is what led to the Paramount Decree in the 1940s. The studios used to control not only the production of movies, but the exhibition of them and were forced to divest from the latter in the name of competition. As the above 400ish words should make clear: the world is very different now. And as a good bit of timing luck would have it, the consent decrees are being unwound. This doesn't mean studios will be able to partake in any kind of anti-competitive behavior, but it should mean they can own theaters again. Because, again, the world is a very different place than it was in the 1940s. One could imagine Disney or the like stepping in to save AMC. Perhaps with the notion that they would still agree to show other studios' films as well. But perhaps they would go above and beyond to showcase their own. Or maybe Disney+ subscribers would get a deal. Etc. And then maybe ViacomCBS (Paramount) buys Regal. Comcast (Universal) buys Cinemark. Sony buys Cineplex. Etc. Or maybe Amazon buys one of them. Netflix has already bought/saved a couple of theaters, perhaps that continues. Again, in that case, it's less about the theatrical business model and more about marketing. And you know who loves marketing just as much as anyone else? Apple. A decade ago, it would have seemed comical to have Apple potentially owning movie theaters. Now with all the money they're pouring into Apple TV+ and wooing the best Hollywood talent, it may seem downright logical. Imagine a movie theater that isn't a public restroom, but instead is a cinematic palace. You know, like they were in the old days. Certainly, those still exist in places. But the AMCs of the world spent the last 20 years wiping them out and screening films in their hollowed out carcasses. It sounds crazy to hope for a world where some of the biggest companies on the planet -- the Amazons, the Apples, the Disneys -- step in to save movie theaters, but such is the state of the world.

Read more of this story at Slashdot.

It's been 163 days since the House passed the $3 trillion HEROES Act, and 25 days since the House passed their compromise $2.2 trillion bill, both of which Mitch McConnell has refused to take up. It is eight days until the election and Republicans are planning their next Supreme Court superspreader party while COVID-19 is spreading faster and further than ever, and not just among White House staff.

House Speaker Nancy Pelosi and Treasury Sec. Steven Mnuchin are still slogging away at negotiations for the next relief bill, with Mnuchin expected to respond to the "list of concerns" Pelosi said she gave him on Friday. "My understanding is he will be reviewing that over the weekend and we will have some answers on Monday," she told CNN Sunday. White House Chief of Staff Mark Meadows told CNN Sunday, "We continue to make offer after offer after offer, and Nancy Pelosi keeps moving the goalposts," so a deal is not imminent. But Meadows also told CNN that the White House isn't trying to "control the pandemic," so why should they be bothered by the effects of it?

Protect and save all our lives. Help take the Senate back from Sen. Mitch McConnell. 

An issue that was still outstanding, Pelosi said Sunday, was a testing and tracing plan, seemingly a relatively easy part of the negotiations that has hit some kind of snag. On Monday, Pelosi told House Democrats that even after Mnuchin said publicly 10 days ago that he was accepting that testing plan, "the administration still refuses to do so." She added: "Unless we have a national plan for testing, tracing, treatment, mask-wearing, social distancing and other science-based steps to crush the virus and combat the disparities facing communities of color, we cannot safely reopen our schools and economy." She also low-key dinged Meadows and his assertion that the administration wasn't trying to control the virus, saying: "The Republicans' continued surrender to the virus—particularly amid the recent wave of cases—is official malfeasance."

That snag over testing language could be Trump, who continues to insist that there wouldn't be any cases if there wasn't any testing. "If we did half the testing, we would have half the cases," said Trump. "If we did no testing—like many countries—we would have very few cases."

The White House has come up to nearly $2 trillion, closer to the House's $2.2 trillion mark. Pelosi has suggested that one of the key outstanding issues—the Republican insistence on lifting liability for businesses—might have a compromise "whereby companies following strong government Covid recommendations could claim compliance as a defense in civil lawsuits by employees." There could also be agreement on the other big issue—state and local aid—with a reinvestment of existing funds and some moving around of money.

The largest problem always has been and remains McConnell. His refusal to negotiate or to bring a House-passed bill to the floor for nearly six months has been the major factor in the economic and public health disaster we're now in. Pelosi said as much Sunday. "We want to do it as soon as possible. I thought the president did too. And that was part of the leverage that each side had—that we both wanted an agreement. Why would we even be talking to each other if we didn't believe that we could reach an agreement? So again, it could happen this week in the House, but that's up to Mitch as to whether it would happen in the Senate and go to the president's desk, which is our hope and prayer."

It would take a miracle for this to happen before the election. The Senate will vote on Amy Coney Barrett's nomination Monday, and then McConnell will cut them all loose so they can return to their campaigns. Campaigns many of them are losing because they prioritized getting extreme ideologues onto the courts over helping the American people.

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Yet another investigation has been opened into Sec. of State Mike Pompeo, this time for violating federal law by using his post to engage in political activity, according to CNN.

While Pompeo has already faced a series of investigations by the agency's internal watchdog, the latest probe was opened by an independent federal agency, known as the Office of the Special Counsel (OSC), over Pompeo delivering his Republican National Convention speech from Jerusalem. It's actually the second OSC investigation of Pompeo for violating the Hatch Act, which prohibits most administration officials from leveraging their office for political purposes. 

"Our offices have confirmed that the Office of Special Counsel has launched a probe into potential Hatch Act violations tied to Secretary Pompeo's speech to the Republican National Convention," Rep. Eliot Engel, chair of the House Committee on Foreign Affairs, and Rep. Nita Lowey, chair of the House Committee on Appropriations, wrote in a joint statement.

"As we get closer to both this year's election and his own inevitable return to electoral politics, Mike Pompeo has grown even more brazen in misusing the State Department and the taxpayer dollars that fund it as vehicles for the Administration's, and his own, political ambitions," the lawmakers added.

Pompeo truly has amassed an impressive resume of corruption for someone who’s next move likely involves running for president in 2024—if Trump loses, of course. If Trump wins, Pompeo will simply be unleashed to misuse taxpayer resources however and whenever he pleases at whatever plumb post he holds. Pompeo’s entire political future really is riding on who prevails next week.

[The much-publicized result is ocnsistent with previous studies on the impact of sanctuary city ]

Over the last decade or so, many state and local governments have adopted "sanctuary" policies that restrict their law enforcement agencies' cooperation with federal efforts to deport undocumented immigrants. Critics, including the Trump administration, claim that sanctuary policies increase crime. Trump has adopted a range of policies designed to coerce sanctuary jurisdictions into doing the bidding ICE, which in turn has led to numerous court decisions striking down the administration's policies.

A recent widely publicized study by Stanford University political science research fellow David Hausman finds that sanctuary city policies result in a reduction in deportations, but no accompanying increase in crime. Here is the abstract summarizing the findings:

The US government maintains that local sanctuary policies prevent deportations of violent criminals and increase crime. This report tests those claims by combining Immigration and Customs Enforcement (ICE) deportation data and Federal Bureau of Investigation (FBI) crime data with data on the implementation dates of sanctuary policies between 2010 and 2015. Sanctuary policies reduced deportations of people who were fingerprinted by states or counties by about one-third. Those policies also changed the composition of deportations, reducing deportations of people with no criminal convictions by half—without affecting deportations of people with violent convictions. Sanctuary policies also had no detectable effect on crime rates. These findings suggest that sanctuary policies, although effective at reducing deportations, do not threaten public safety.

The article is, unfortunately, gated, so it may not be easy for readers without university or research institute affiliations to get free access. But this Washington Post article has a good summary of the results,as does the Hill. Hausman's findings are consistent with those of previous academic research on the subject, which consistently also concludes that sanctuary city policies do not result in increased crime rates, and may even reduce them. In Chapter 6 of my recent book, Free to Move, I use this and related evidence to make the point that we can better combat violent and property crime by redirecting resources currently used for deportation efforts to conventional policing. For example, I estimate that  zeroing out ICE immigration enforcement programs would free up enough funds to pay the salaries of over 60,000 new police officers. And unlike ICE's current activities, extensive evidence indicates that having more conventional cops on the street really does reduce crime—though it is also important to do more to curb police abuses against civilians, including racial profiling.

I do not suggest that hiring more cops is the best possible use of resources currently devoted to deportation efforts. But, if the goal is reducing crime rates—particularly when it comes to violent and property crimes that actually harm people, it would be a major improvement over the status quo.

US hospitals are experiencing another surge of Covid-19 patients, forcing them to take extreme measures to avoid being overwhelmed. | John Moore/Getty Images

Hospitals are making plans to ration care and move patients out of state as their beds fill up.

The latest Covid-19 surge is forcing US hospitals to take drastic measures — setting up temporary facilities or preparing to transport patients to other cities and states — to avoid being overrun.

The number of Americans currently hospitalized with Covid-19 has risen by 12,000 over the last month, reaching 41,753 on October 25, according to the Covid Tracking Project. Some hospitals are drawing up plans to ration care if they have more patients than beds, the kind of worst-case scenario they’d been hoping to avoid.

Case numbers are still rising too: The US is now averaging nearly 69,000 new Covid-19 cases every day, higher than the previous peak in July. Hospitalizations lag behind cases, because it takes time for a person to become ill enough to require hospitalization‚ and so that number is likely to keep going up as well.

Covid Tracking Project

Deaths are already ticking up, with the US now averaging more than 800 every day, and they usually follow the same trends as cases and hospitalizations with a slightly longer lag. (Fortunately, hospitals have figured out how to better treat Covid-19, which is leading to lower mortality rates. But still, more patients in the hospital will inevitably mean more deaths.)

And the scary feature of this new wave is that cases and hospitalizations are climbing everywhere. In previous waves, cases were ebbing in one part of the country while they spiked somewhere else. But now, the entire country is experiencing a surge at the same time.

Covid Tracking Project

Every state except Hawaii, Delaware, and Louisiana (and Washington, DC) saw their case numbers rise over the last two weeks, according to Covid Exit Strategy. More than 40 states have a higher number of people hospitalized with Covid-19 now than they did 14 days ago.

Public health experts have long expected that cases would increase during the winter months, when social distancing becomes more difficult and the colder weather makes it easier for the coronavirus to spread. But this new data shows the difficult days are already here.

And hospitals are feeling the strain, just as they did in previous surges. The weekend brought numerous reports of hospitals taking emergency measures in order to handle the influx of Covid-19 patients. According to Covid Exit Strategy, 20 states have more than 70 percent of their ICU currently occupied; that remaining capacity could quickly shrink if the current trends continue. In some cities, hospitals have already reached their capacity.

Here are just a few examples of hospitals being pushed to the brink in the pandemic’s third wave.

El Paso, Texas, is setting up a field hospital and ordering a mandatory curfew

El Paso County has issued a mandatory curfew, from 10 pm to 5 am, after hospitalizations surged by 300 percent in less than three weeks. A recent University of Texas study projected a 96 percent likelihood that the area would have more ICU patients than beds by November 8 and a 85 percent probability that all of the hospital beds would be filled.

Several other regions in the state — around Amarillo, Lubbock, Wichita Falls, Abilene, Dallas/Fort Worth, and Odessa — also have better than even odds of exceeding their ICU capacity in the next two weeks. Statewide, the number of currently hospitalized Covid-19 patients has risen from 3,190 on October 1 to 5,206 on October 25.

“We are at a crisis stage,” El Paso County Judge Ricardo Samaniego said this weekend, according to CBS News.

A field hospital is being set up at the El Paso Convention and Performing Arts Center, initially with 50 beds but the capacity to add 50 more. More than 1,000 state and federal health workers have moved into the county in recent days to try to provide more support. As Vox has previously reported, one problem hospitals experience during Covid surges is staffing; sometimes, they may have open beds, but not enough nurses and doctors to take care of the patients.

Hospitals are also preparing to airlift patients from the El Paso area to other parts of Texas with more available beds. Gov. Greg Abbott has raised the possibility of opening a military hospital to civilians.

“Hospitals are reaching a point where they have expanded, within their existing brick and mortar, as much as they can,” the University Medical Center in El Paso said in a statement.

Utah hospitals are preparing to ration medical care for Covid-19 patients

Covid-19 has exploded in Utah over the last two months. On September 1, the state was averaging less than 400 new cases every day; as of October 25, the average number of daily new cases had nearly reached 1,500. Hospitalizations have followed the same trend, with the number of currently hospitalized Covid-19 patients more than doubling from 145 to 313 over the same period.

With some hospitals already forced to activate their emergency surge capacity plans, hospital officials have started drawing up criteria for how to ration care if they have more patients than beds available.

It could literally become a matter of choosing which patients live and which patients die. From the Salt Lake Tribune:

Greg Bell, president of the Utah Hospital Association, said administrators of the state’s hospitals confronted Gov. Gary Herbert on Thursday with a grim list: Criteria they propose doctors should use if they are forced to decide which patients can stay in overcrowded intensive care units.

Under the criteria, which would require Herbert’s approval, patients who are getting worse despite receiving intensive care would be moved out first. In the event that two patients’ conditions are equal, the young get priority over the old, since older patients are more likely to die.

“We told him, ‘It looks like we’re going to have to request those be activated if this trend continues,’” Bell recounted, “‘and we see no reason why it won’t.’”

Utah hospitals are also facing the same staffing problems seen elsewhere: Though the state created plans to establish a field hospital at an expo center, medical leaders are warning that they don’t have the doctors or nurses available to staff those new beds. Health care workers have described feeling overwhelmed throughout the Covid-19 crisis and now they are being asked to do even more, months into the pandemic.

“Hundreds and hundreds of nurses are not able to work as they were [before] because of their own disease or infection in the family, or they’re moms and dads with school issues,” Bell told the Tribune. “Some are worn out, some are on leave because they’ve been doing this for seven months.”

Idaho hospitals are planning to send patients out of state as beds fill up

Idaho has set a record for Covid-19 hospitalizations over the weekend with 259 people currently hospitalized, up from 135 at the beginning of October. The state is also averaging almost twice as many new cases as it was a few weeks ago, meaning more hospitalizations are likely coming.

Hospitals might need to send patients to hospitals in other states as their beds fill up, an enormous logistical challenge for the facilities and an emotional one for families that may be separated from their loved ones by hundreds of miles.

At least one hospital in northern Idaho has already planned for such a contingency. Kootenai Health in Coeur d’Alene reported at the end of last week that it had reached 99 percent capacity. The health system will send patients to Portland, Oregon, or Seattle, Washington, if its numbers continue to rise, because nearby hospitals are experiencing the same surge and don’t have room to take extra patients.

Another hospital, Saint Luke’s Magic Valley in Twin Falls, has announced it will start transferring children who require hospitalization to hospitals in the state capital of Boise in order to keep more beds available for Covid-19 patients.

The surge in Covid hospitalizations is going to be worse before it gets better

There are more stories like this across the country:

• Wisconsin has set up a field hospital on the state fairgrounds near Milwaukee. (Covid-19 hospitalizations in the state have doubled since the start of the month.)
• Hospitals in Kansas City, Missouri, are reportedly turning away ambulances because they don’t have any beds available, and urban hospitals warn they may not be able to accept overflow patients from rural areas. (Hospitalizations in Missouri reached a new record last week.)
• Oklahoma City hospitals are activating their surge capacity plans to add more beds, call in extra staff, and possibly reduce non-Covid services. (Oklahoma is yet another state to see a record number of Covid-19 hospitalizations in the last few days.)

With cases rising, hospitalizations will follow and deaths after them. It’s an established pattern. This will get worse before it gets better.

But we can try to lighten the burden for hospitals and their staff. As Vox explained at the beginning of the pandemic, the goal of social distancing is to suppress Covid-19’s spread so that hospitals don’t become overwhelmed. It also buys time for hospitals to put their surge capacity and staffing plans in place.

It won’t be easy. The federal government isn’t going to provide more resources to hospitals for the foreseeable future, with hopes for another Covid-19 relief package before January fading. Some state and local governments continue to resist mask mandates (even in these stressed areas like Idaho) and other social distancing restrictions.

Wearing a mask and keeping our distance is something each of us can do on our own to reduce Covid-19’s spread and slow down on the rapid growth in hospitalizations. There is no time to waste.

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Will this election be a replay of 2016, with President Trump unexpectedly winning Wisconsin, Michigan and Pennsylvania? FiveThirtyEight Politics podcast host Galen Druke says that 2020 is shaping up to be a very different race in the Midwest.

White House senior adviser and Donald Trump son-in-law Jared Kushner is no stranger to making appearances on TV. We’ve seen him go on a number of networks to describe the federal government’s COVID-19 response as a “great success story,” proudly announce he’ll send his kids to in-person school amid the pandemic, and theorize that by June, “a lot of the country should be back to normal.” Now, more than 200,000 Americans are dead due to the literal global pandemic the Trump administration has failed to control.

Most recently, Kushner appeared on Fox & Friends on Monday morning where he said Black people need to “want to be successful” for Trump’s policies to actually benefit them. Whew. Let’s check out the viral clip and full comments below.

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First, here is that clip.

Kushner, of course, also made time to suggest that people who have come out to support Black Lives Matter are merely “virtue signaling. “

“You saw a lot of people who were just virtue signaling, they’d go on Instagram and cry or they would put a slogan on their jersey or write something on a basketball court,” Kushner stated. “And quite frankly, that was doing more to polarize the country than it was to bring people forward.”

Daily Kos has covered the growing number of athletes who have publicly stood with Black Lives Matter, including tennis icon Naomi Osaka, a number of leagues, and of course, former NFL star Colin Kaepernick. Trump himself has taken to Twitter to attack athletes who peacefully protested, including those who kneeled during the national anthem.

“One thing we’ve seen in a lot of the Black community, which is mostly Democrat, is that President Trump’s policies are the policies that can help people break out the problems that they’re complaining about,” Kushner continued. “But he can’t want them to be successful more than they want to be successful.”

There’s a lot to unpack there. First of all, his choice to categorize systemic oppression and racial injustice as “problems” people are “complaining about” is obviously an intentional one. And the idea that Black people’s systemic barriers to employment, housing, and economic equity rest simply on a desire to “want to be successful” is such a tired, offensive bootstraps logic it’s a wonder anyone thinks that rhetoric would make waves with anyone in this day and age. 

Until you remember Kushner made this assertion on Fox News.

Now, we know that more than 70% of Fox News viewers are white, according to January 2019 data from an NBC/Wall Street Journal poll. So, what is Kushner really doing? He’s stoking hateful, racist stereotypes about Black people to a mostly white audience. That’s not trying to reach Black voters—that’s trying to appeal to a fanbase that wants their latent (or not so latent) racist views affirmed. Talk about wanting to polarize people instead of bringing them forward, huh?

Here’s a longer clip of the conversation on YouTube.