System Failure

 

SYSTEM FAILURE

What follows is a column I wrote and that was published on April 12, 2015 by the Charlotte Observer. As you will see, my effort in the Spring of 2015 was to urge the newly created Edward M. Kennedy Institute to aggressively address the rapidly worsening problem of polarization of the American electorate and its elected leaders in Washington. The column was published three months before Donald Trump began his quest for the White House. Little did any of us know in the Spring of 2015 how much worse and dangerous polarization would grow between then and now. Indeed it may be that the nation is beyond the point of no return. The accumulating evidence of hatred and violence point clearly in that direction.

“Watching the dedication ceremonies of the Edward M. Kennedy Institute for the United States Senate on C-SPAN recently got me to thinking about the opportunity and obligation the Institute has to address the near complete collapse of effective governance in Washington. Neither party has clean hands. And worse, neither will fix this mess.

As the former staff director of Sen. Kennedy’s Health Subcommittee in the 1970s, I know that he would expect the Institute that bears his name to tackle this problem because doing so is a direct extension of the Institute’s stated mission: “encouraging participatory democracy, invigorating civil discourse, and inspiring the next generation of citizens and leaders to engage in the civic life of their communities.”

Few people know the story I’m about to tell you. But it epitomizes the extraordinary talent, tenacity and creativity he brought to the legislative process. It also illuminates the path forward for the Institute.

When Sen. Kennedy became Chairman of the Health Subcommittee in 1971 his first task was to pass the War on Cancer bill, S.34, that included the recommendations of a special panel of 26 scientific experts and distinguished laymen, including Dr. Sidney Farber, then the scientific director of the Children’s Cancer Research Foundation in Boston.

The ranking minority member of our subcommittee was conservative Republican Peter Dominick of Colorado. Kennedy and Dominick didn’t know one another well, and they didn’t trust each other.

But the real problem had nothing to do with the need to expand cancer research at the National Institutes of Health (NIH) in order to take better advantage of the opportunities to combat the more than 100 diseases that are cancer. The problem was presidential politics.

President Nixon was terrified that Kennedy was going to use the War on Cancer as his stalking horse to challenge him in 1972. To thwart that irrational fear Nixon sent an alternative cancer bill to Congress that Dominick introduced, S.1828. It was substantively flimsy, lacking the scientific content of Kennedy’s bill. Thus, the stage was set for a bitter battle between Nixon and Kennedy over who would get the credit for the cancer initiative. It was a precursor of the deadlock in Washington today.

However, in the closed subcommittee mark-up session on both bills that summer, Sen. Kennedy did something astonishing. He turned to Dominick and said, “Peter, why don’t you report S.1828.” By offering to let Dominick report the bill from the committee and manage it on the Senate floor, he was proposing to turn the leadership of the cancer initiative over to Dominick and the Nixon administration. Something like this never happens!

Then Kennedy said he would offer an amendment to strike all of the language in S.1828 and substitute the language from his bill. Dominick, caught completely by surprise, said, “That’s fine, Ted.” Dominick’s staffer bolted from his chair and came over to me and whispered, “Lee, I don’t know how to write a committee report.” And I said, “We’ll do it together,” and that’s exactly what we did.

Thus, Nixon’s bill number with Kennedy’s language was on its way to passage. In a stroke of brilliance, Ted Kennedy had turned what would have become an unnecessary, paralyzing political war into what became bipartisan public policy. The ripple effect of what Kennedy did was dramatic. The enactment of the cancer bill in December of 1971 not only triggered a massive expansion of basic and clinical cancer research, it also greatly expanded research at NIH for all other diseases.

From that point forward Dominick and Kennedy knew they could trust each other. They worked cooperatively together on many more health bills. For Kennedy the die was cast. Not only had he learned the irreplaceable value of compromise and surprise, he used those skills over and over again as the decades rolled by to become the Senate’s Legislative Lion.

Now Ted Kennedy is gone, and so is the spirit of trust and accommodation that is essential to a functioning democracy. In its place, fear and hatred control Congress and its relations with the White House. If allowed to continue, it poses an existential threat to our freedom and to democracy itself.

It’s obvious the federal government won’t put this right. It needs help, and the Kennedy Institute has the opportunity and the obligation to provide some of that help – not because I say so, but because Ted Kennedy would expect nothing less. Such an endeavor for the Institute will not be easy or safe. The path forward is perilous, but it must begin – now.

When it’s begun I can hear Ted saying what we heard him say so often over the years: “Good, Good.”

Regardless of contributions of the Kennedy Institute to lessen polarization and foster bipartisan bridge building over the past six years, there is no doubt that more could and should have been done, not just by the Kennedy Institute, but also by all of the rest of us who have seen this national nightmare grow worse and become a force that now clearly threatens the viablility of constitutional governance.

Stop for a moment and ask yourself whether you could ever have imagined that a sitting President of the United States seeking reelection would state over and over that he was going to lose the election because it would be stolen from him. Then, after losing the election, he would seek redress in the courts only to lose more than 60 lawsuits in judgments rendered by judges appointed by Republican and Democratic presidents. Following that he would then initiate a mass gathering of his most rabid supporters in Washington for the purpose of attempting to have them do what his Vice President would not do—disrupt the process of Congressional certification of the results of the Presidential election. And finally then have his lawyers argue in an impeachment trial in the United States Senate that all he was doing was exercising his protected right to free speech.

In case you've been too busy to notice or care your country has disintegrated.

LeRoy Goldman

February 13, 2021

 

 

 

 

AND THE VOTERS SAID, “YOU'RE FIRED”

LeRoy Goldman

October 29, 2020

The outcome of the election November 3^rd is best understood by knowing that it's going to be determined by a collision between the former host of The Apprentice and Forrest Gump. More on that below.

History doesn't help us much in predicting whether an incumbent president seeking reelection wins a second term. Since World War II, there have been plenty of examples of happy and unhappy such outcomes. Harry Truman and Lyndon Johnson read the tea leaves and chose not to seek a second term. Jimmy Carter and George H. W. Bush tried and failed. However, Ronald Reagan, Bill Clinton, George W. Bush, and Barack Obama all won second terms. Now comes Donald Trump. What fate awaits his pursuit of a second term? And how will that affect or not the down ballot races for Congress and State governments?

If Donald Trump's triumph in 2016 teaches us anything, it teaches us a lesson in humility. Remember that nobody gave Trump a chance to win four years ago. And that long list of those who wrote him off not only included elections experts, political pollsters, academics, newspaper editorial boards, and television talking heads, it also included Trump's inner circle of advisers, his Campaign staff, and Trump himself.

I've been predicting presidential elections since 1948 and Congressional elections since the early 1970s. My track record is exemplary and better than most of the “experts”. That's because I have a secret weapon most of them don't. I do my very best to not infect my predictions with the outcome I want to occur. Too many of the “experts” either unwittingly or intentionally do not exercise that discipline. For them their analysis starts with their personal bias and reasons (predicts) backwards. If that's your cup of tea, read the New York Times or the National Enquirer or listen to Rachael Maddow or Sean Hannity.

So here are current examples of what I'm walling off in the predictions that follow. I don't believe Donald Trump is fit for the office he holds. I don't believe he is capable of getting beyond his own self interest to the interests of the American people. I believe that Joe Biden is way beyond his prime and thus no longer capable of leading and healing a nation torn apart by polarization unlike anything we've witnessed since the Civil War. And I don't believe that Joe Biden will be able or willing to successfully resist the far left forces that control the Democratic Party with beliefs that are rooted in reverse racism and sexism.

That said, I also got it wrong in 2016. I predicted that Hillary Clinton would win. I also said that, if Trump broke through in the traditionally Democratic states of Pennsylvania, Michigan, and Wisconsin, he'd win. And that's exactly what happened.

In order to begin to try to figure out whether that kind of unexpected breakthrough might happen this November it's worth looking back at how Trump won in 2016 by breaking into the Democrat's Blue Fortress and winning those three Rust Belt states.

Given the growing and now almost complete polarization of the American electorate, we knew in 2016 and we know today how most states will vote before a single vote is cast. This polarization, which has been inexorably expanding for more than a quarter century, has now produced two Americas that distrust and loathe one another. It's lethal and it is the clearest and most present danger the nation faces. But that zero-sum game is not the subject of this paper.

In 2016 it was assumed that the Democrats would carry 19 states and the District of Columbia with 247 electoral votes. This was their Blue Fortress. The Republicans assumed they would carry 23 states with 191 electoral votes, their Red Fortress. That left the 8 Swing states of New Hampshire, Virginia, North Carolina, Florida, Ohio, Iowa, Colorado, and Nevada with their 100 electoral votes. Since it takes at least 270 electoral votes to win the White House, you can see how the Democrats had an advantage. They only needed 23 electoral votes from the Swing States to win. The GOP, however, needed 79.

Trump won four of the eight Swing States with 68 electoral votes, North Carolina, Florida, Ohio, and Iowa. Close but no cigar! But then Trump did what no one, including Trump, his campaign, and the nation's pollsters saw coming. He broke into the Blue Fortress and won the 46 Electoral votes in Pennsylvania, Michigan, and Wisconsin. He won them by the narrowest of margins. Trump prevailed in those Rust Belt states by 77,000 votes out of a total vote cast of over 13,000,000. That's less than one-half of one percent. Can he pull the rabbit out of the hat again on November 3^rd?

THE PRESIDENTIAL ELECTION

For openers we need to understand that the list of Swing States this year is not the same eight states it was in 2016. Now it includes seven of those from 2016 and six more. Virginia is now reliably Democratic thanks mainly to the huge Democratic margins the party rolls up in vote rich Fairfax County in Northern Virginia. This prosperous County just south of Washington DC, boasting a population of over 1.1 million, gives the Democrats more than they need to secure Virginia's 13 electoral votes.

In addition, thanks to the shocking results four years ago, we need to add Pennsylvania, Michigan, and Wisconsin to the list of Swing States.

And finally the states of Georgia, Arizona, and Texas are no longer reliably Republican. They have become Swing States.

Thus the Red Fortress now contains 20 states and 126 Electoral votes. The Blue Fortress now contains 17 states and the District of Columbia with 214 Electoral votes. Now there are 13 Swing States with 198 Electoral votes.

Donald Trump's amazing victory in 2016 can best be explained and understood by focusing on two factors: that he faced a vulnerable adversary in Hillary Clinton and that he was able to energize and bring to the polls a large cadre of individuals who hadn't voted in quite some time. Let's call them the Forgotten Americans. Most of them were white, older, and many were former Democrats.

Once it became clear that 2016 would be a choice between Hillary Clinton and Donald Trump I began asking folks if they were OK or not OK with those two choices. Every single time I put that question before voters of all stripes the answer was the same. People were not happy with either choice.

Clinton had already proved herself to be a terrible campaigner. She had sought the Democratic nomination in 2008, and started the effort as the prohibitive favorite. She blew it as the upstart, Barack Obama, secured the nomination and went on to the White House. During that battle Clinton chose to make little or no effort in the states that held caucuses. Those are the states where Obama built a lead in delegates that Clinton was never able to overcome. There's only one way to describe Clinton's decision to ignore the caucus states—stupid.

By 2016 Clinton was again the front runner for the Democratic nomination. But she turned out to be her own worst enemy. Many voters perceived her to be haughty and condescending. Many concluded that she felt she was owed the Democratic nomination and the Presidency. This nation's birth has taught us to be profoundly skeptical of the Divine Right of Kings or Queens.

The best example of how the Forgotten Americans were instrumental in putting Trump in the Oval Office is how he carried Pennsylvania. Democrats have carried the Keystone State for decades by piling up huge majorities in Philadelphia and Pittsburgh and also doing exceedingly well in the suburban counties surrounding Philly. Republicans win handily throughout the rest of the state. But normally that's not enough to overcome the Democratic vote from the two major cities and their suburbs. Trump however successfully energized a much larger than normal turnout in Pennsylvania’s small towns and rural areas. Many of these traditional non voters were former Democrats and union members who have been passed over by the longstanding recession caused by manufacturing job losses in Pennsylvania and other Rust Belt states like Michigan and Wisconsin. Trump gave them hope and a renewed cause to vote. Whether that will again be the case in 2020 remains to be seen.

From the moment that Donald Trump began his quest for the presidency he was a polarizing and unique phenomenon. His unceasing and personal onslaught aimed as his many rivals for the GOP nomination amounted to nothing less than a scorched earth campaign. None of his rivals could find an effective countervailing strategy to turn his ceaselessly marauding attacks to their advantage.

Having secured the Republican nomination, Trump unleashed his fury on Hillary Clinton. It too worked, although the nation did not realize it until the votes were counted on election day. Trump's triumph stunned the nation. As it became clear that he was the President elect, the Never Trump movement was born.

The question left unanswered was whether he would change course and reach out to all Americans once he was sworn in on Inauguration Day. His inaugural address answered that question with a resounding, NO. How dumb was that!

His answer was a strategic and lethal blunder. It was stupid, and here's why. On the day he took the oath of office Trump's approval rating was 40%. That should have told him that he had work to do in order to have the support necessary to enable him to successfully bring about the monumental changes in Washington that he had promised the voters as he campaigned throughout 2016. Draining the Swamp and Making America Great Again could only be accomplished with an extraordinary amount of skill, compromise, yes, compromise, and luck. It turns out Trump has benefited from none of the above. Throughout his term in office his approval rating has been stuck in the 40s. Ignoring the fact that more than half of the American people disapprove of your conduct as president is not only narcissistacally unthinking, it's a recipe for defeat.

Trump's response to the corner he painted himself into has been predictable and utterly counter productive. He has worked tirelessly and successfully in throwing red meat to his base supporters who will blindly follow him over the cliff this November 3^rd. His incessant Tweet Storms may work as anesthesia for his ardent followers. But they bear no resemblance to a governing strategy for a nation torn apart by polarization. Finally, Trump's chances for reelection were slim to none before the Corona virus infected America and crippled our economy. His response to the pandemic has been a tragic joke, and the vote of no confidence that is on the wing will seal his fate.

Any elected official with approval numbers stuck in the 40s knows that he must broaden his base or face defeat. Even a cigar store Indian with no electrical activity between his ears knows that if he gets 45% of the vote and his opponent gets 55% of the vote, he loses!

Any yet that is precisely what Trump has done for the last four years. The price of only throwing red meat to his base, while belittling and humiliating his enemies, has had the effect of alienating large swaths of the American people, including principally women, seniors, minorities, and suburbanites. Taken together they constitute a large majority of voters in America. With a large minority of their support and that of the Trump base the president would have had a fighting chance at Making America Great Again, and reaping the benefit of a second term to continue that herculean effort. Absent that it curtains.

Recent polling is replete with data that documents the hole the president has dug and is continuing to dig for himself. Here's a sampler of these devastating data.

In 2016 Trump defeated Clinton in the nation's suburbs by 4%. But in the 2018 Congressional election the GOP was butchered in suburban districts all across the nation. The Republicans lost 37 of its 69 suburban congressional seats. In losing those seats the GOP lost the House of Representatives. In most of those districts Republicans, especially Republican women, chose not to vote or voted Democratic. They did so for two basic reasons vehement opposition to the president's failure to put forth a comprehensive alternative to Obamacare and/or because they simply couldn't contain their fury at the president's assault on women. They took his boorish behavior toward women personally. Since having lost the House two years ago has the president changed course in respect of women? In a word, no! Not smart!

In Pennsylvania, the normally Democratic state that sealed Trump's breathtaking 2016 victory, polling shows him losing the Keystone state's suburbs to Biden by an astonishing 26%. Unsurprisingly polling data also show similar results with women, regardless of whether or not they reside in suburbs. A recent ABC/Washington Post national poll shows that Biden leads Trump 59% to 36% among women likely to vote.

You want more? You have to go back to the Clinton election in 1996 to find a Democrat who won a significant majority of the senior vote. And seniors make up one-fourth of all voters. But a recent NBC News/Wall Journal poll had Biden up by a jaw-dropping 27 points among voters over 65. In 2016 Trump carried the senior vote by 7%. While multiple factors undoubtedly account for the fact that seniors are deserting Trump, make no mistake about it, the heart of the problem is the Corona Virus epidemic and the haphazard way in which the Trump Administration has bungled coping with it. Recall that last Spring the President stated, “it'll go away when the weather warms up”. At the same time he is on the record in interviews with Bob Woodward for Woodward's book, Rage, stating that he knew clearly how deadly and widespread Covid would be in the United States. Then, just for good measure, the president weaponized the wearing of face masks. That move was not only dumb it has resulted in more cases of Covid, more hospitalizations, and more deaths. Trump's handling of Covid makes George W. Bush's bungled response to Hurricane Katrina in 2005 look like a master stroke of competence and compassion. Not to worry, Trump has tried to off load the blame for the Covid mess onto incompetence at the CDC, the FDA, and Dr. Fauci. The last time I looked all of them worked for him.

Lets go to the numbers. In 2016 Hillary Clinton won the popular vote handily, 66,000,000 to Trump's 63,000,000. This year Joe Biden will do even better than did Clinton in besting Donald Trump. But, of course, the popular vote is not determinative. What counts is the electoral vote. It takes at least 270 Electoral votes to win. I predict that Trump will win at least 20 states with 126 Electoral votes. Biden will win at least 17 states and the District of Columbia with 214 Electoral votes. The tale will be told in the remaining 13 Swing States with their 198 Electoral votes. Here's how I believe they will go:

NEW HAMPSHIRE (4)- In 2016 Clinton edged Trump by only 3000 votes out of a total of 700,000 votes, less than half a per cent in the Granite State. It won't be nearly that close this year. BIDEN CARRIES NEW HAMPSHIRE.

NORTH CAROLINA (15)- Four years ago Trump carried North Carolina by 4%. Carrying it again is vital for him to have a viable pathway to reelection. The vote will be close, but Trump falls short. It's a possible trifecta for the Democrats in the Tar Heel State this year. Popular Governor, Roy Cooper wins in a breeze, and the bitter Senate contest between Republican Senator Thom Tillis and Democrat Cal Cunningham is the most expensive Senate race in the nation's history and will likely be determinative in deciding which party controls the Senate next year. BIDEN CARRIES NORTH CAROLINA.

FLORIDA (29)- Only California and Texas have more electoral votes than Florida. Moreover, dating back to Bill Clinton's first win in 1992, the candidate who carries Florida wins the White House. Florida is almost always close. Four years ago, Trump won by just over 1%. Think of Florida as two states politically. The southern half is Democratic. The northern half is Republican. Dividing the two is the I-4 Corridor that runs from Tampa on the Gulf coast, through Orlando in the center of the state, and on to Daytona Beach on the Atlantic coast.

How the vote breaks in along the I-4 Corridor will determine who carries Florida. And the lynch pin of the Corridor is Orange County, Orlando. Turnout in Orange County and its neighboring counties on its north and south, Seminole and Osceola, will tell the tale in the Sunshine State. Orange County is the state's fifth most populous county. Its population is just under 1.5 million. Four years ago Hillary Clinton carried Orange County by about 125,000 votes. Since then there has been a substantial increase in Democratic registration. This part of Florida has been experiencing explosive growth and much of that growth consists of Latinos, including large numbers of persons of Puerto Rican descent. If the Democrats can get these folks registered and to the polls Trump's margin of victory statewide will disappear.

And there is another county in the Sunshine State that bears close attention, Sumter County. It's home to the posh retirement community, The Villages. Its median age is 66. It has more than 125,000 residents most of whom are white, and it's a bastion of Republican strength. In 2016 Trump won Sumter County with 68% of the vote and carried the state narrowly. Anything below 66% would spell big trouble for Trump statewide this year.

More and more polling data show that seniors are increasingly unhappy with the president at the intersection of his actions (and inactions) on the Covid pandemic and health care issues more broadly. Senior are a large and powerful cohort of voters who are a necessary lynchpin in any election that Republicans win. The vote out of Sumter County will tell us a great deal not only about whether Trump wins Florida but also how he will fare in other states with significant number of seniors. BIDEN CARRIES FLORIDA.

GEORGIA (16)- That Georgia is now a Swing State is noteworthy in and of itself. Heretofore it has been reliably Republican. But the changing demographics of Georgia increased the population of the suburbs surrounding Atlanta, and we know that Trump, as a consequence of unforced errors, has lost significant suburban support. In addition Georgia Democrats, especially African-American Democrats, have been outraged and energized by the Black Lives Matter movement and the death of an American icon earlier this year, Georgia Congressman John Lewis. The polls show Trump with a slight lead in the Peach State. I believe they do not (yet) reflect the electoral wave that will finish Trump. BIDEN CARRIES GEORGIA.

OHIO (18)- No Republican has ever won the Presidency without carrying the Buckeye State —none. Trump carried it handily four years ago by 8%. Polling shows it to be much closer this year, although Trump maintains a narrow lead. Like Georgia, I don't believe Trump's lead holds up. There's going to be too much leakage in the Cincinnati, Cleveland, and Columbus suburbs. BIDEN CARRIES OHIO.

PENNSYLVANIA (20)- It was the Keystone State that put Trump over the top and in the White House in 2016. It was a squeaker. He carried the state by only 46,000 votes out of a total of just under 6 million. The formula is basically the same in each presidential election. The Democrats must win overwhelmingly in Philadelphia and Pittsburgh, carry the surrounding suburbs easily, and, and hope that the GOP can't overcome their lead in the rest of the state. That's the algorithm that failed them four years ago.

The county to watch is Luzerne County in northeastern Pennsylvania. Its population is just over 300,000 and it’s made up of white working class families most of whom are not college educated. Trump carried Luzerne by 26,000 votes in 2016. That's not in the cards this year. His margins in most of the state's Trump counties are going to diminish, and the Democrats are going to carry Philadelphia and it suburbs by more than they did four years ago. BIDEN CARRIES PENNSYLVANIA.

MICHIGAN (16)- Trump carried Michigan in 2016 by the narrowest of margins, 11,000 votes out of almost 4.5 million. He'll not do it again for a host of reasons including his running war with the Democratic Governor of Michigan, Gretchen Whitmer, over how best to combat the Covid crisis. The Great Lake State returns to the Blue Fortress. BIDEN CARRIES MICHIGAN.

WISCONSIN (10)- The Badger state was the third Rust Belt state that Trump won in 2016. It was that election's tipping point state. It was the state that Hillary stupidly chose to never campaign in. And the Black vote in Milwaukee was way down. That will not happen this year. In addition to a hefty Black vote in Milwaukee thanks to the Black Lives Matter Movement and the violence in Kenosha, keep an eye on Ozaukee County just north of Milwaukee. This overwhelmingly white and wealthy county is the beating heart of Republican territory. No Democrat running for President has won more than 40% of the vote in Ozaukee in forever. Biden might just pull it off. BIDEN CARRIES WISCONSIN.

IOWA (6)- Trump won Iowa in 2016 handily, by 9 points. It's much closer this year. Recent polling shows the race to be a dead heat with perhaps a slight advantage to Trump. If I'm right that there is a mounting tidal wave pushing Biden, there's no reason to believe it will not engulf the Hawkeye State. BIDEN CARRIES IOWA.

TEXAS (38)- Four years ago Trump defeated Clinton in Texas handily by 9 points. The last time a Democrat seeking the presidency carried Texas was Jimmy Carter in 1976, 44 years ago. But times have been a changing. The Hispanic portion of the Texas population has been steadily increasing for decades. About 40% of the state's population is Hispanic. And Trump has alienated Hispanics in a myriad of ways including The Wall, DACA, and his ineffectual response to the Corona virus debacle.

Texas has been particularly hard hit by the Covid pandemic, and a disproportionate share of the hospitalizations and deaths have occurred in minority communities in the Lone Star State.

In 2018 Incumbent Republican Senator, Ted Cruz, was reelected by only 2+% over Democrat Beto O'Rourke. It was the closest Senate race in Texas since 1978. Now it appears that Trump is no longer assured of victory in Texas. TRUMP CARRIES TEXAS.

COLORADO (9)- Hillary Clinton won Colorado four years ago, and Joe Biden has a lead that is expanding in the Centennial state. The combination of the expanding Latino population and the battering Trump is taking in the Denver suburbs make the state's electoral votes a bridge too far for Trump. BIDEN CARRIES COLORADO.

NEVADA (6)- Hillary Clinton won the Silver State four years ago and the same formula will work again this year for Joe Biden. Trump will carry every county in the state except Clark (Las Vegas) and Washoe (Reno). But Vegas and Reno are more than enough for the Democrats to prevail. Instrumental in the outcome are the highly organized and largely Latino culinary workers on the Vegas Strip who work in its many hotels and casinos. That union was and still is closely allied with former Senate Majority Leader, Harry Reid's political machine. BIDEN CARRIES NEVADA.

ARIZONA (11)- The Grand Canyon State used to be a reliably Republican state. No more. For example, Mitt Romney carried it in 2012 by 10.7% But Trump carried it in 2016 by only 2.8%. Since then things have gotten worse for Trump.

The state's Latino population has continued to grow, and Trump has gone out of his way numerous times to denigrate personally the now deceased former Arizona Senator, John McCain, the party's 2008 standard bearer. Recall the worst of it from Trump concerning Senator McCain. In July of 2015, while speaking in Ames, Iowa, Candidate Trump said, “He's not a war hero. He was a war hero because he was captured. I like people who weren't captured.”

McCain was shot down over North Vietnam, imprisoned in the infamous “Hanoi Hilton” for 5 and one-half years, tortured, and refused to come home without the other imprisoned American servicemen when the North Vietnamese learned his McCain's father was an admiral.

John McCain's lifetime of service to this nation is rightfully respected in Arizona. Trump's about to learn that Vengeance is a dish best served cold. BIDEN CARRIES ARIZONA.

When all is said and done Trump will have carried 21 states and 163 electoral votes. Biden will have carried 29 states and the District of Columbia with 375 electoral votes. His victory will be clear, convincing, and overwhelming. In these totals Biden will also have won a single electoral vote in Nebraska by having carried its 2nd Congressional District, Omaha. Nebraska (and Maine) award electoral votes on the basis of congressional district.

If I'm right, Biden will have won all of the Swing States except Texas. For Trump a humiliating defeat of this magnitude will have been the inevitable consequence of his many unforced errors, his incompetence, and his unnecessary and counterproductive viciousness. Brilliant, no?

THE PRESIDENTIAL BELLWETHER

Now let's presume you don't have the time or the interest in staying up most of the night on November 3^rd to follow all of the returns. There's a work around available. Alternatively you can follow the vote in Vigo County Indiana. And the Hoosier State is one of the states that reports its returns early in the evening.

Vigo County, located in southwestern Indiana on the Illinois border, has a remarkable record of voting for the person who goes on to become president. It has done so correctly in every election since 1956, and it has been wrong only twice since 1888. No one really understands why.

In important respects Vigo's population, roughly 100,000, is not a mirror image of the United States. Its population is far less diverse than the rest of America. It is less well educated and poorer than is the rest of America. It is however made up of plenty of Republicans and a mix of Democrats who are either older, union workers or students who attend one of the four colleges in the county. How many of them are currently attending classes in Terre Haute and voting in Vigo County though is unknown to me given the Covid pandemic. If they are elsewhere, that alters Vigo County's demographics and imperils the county's status as a bellwether.

Trump likely will carry Indiana. But if Biden wins Vigo County or only loses it by only a point or two, you can go to bed with the confidence that he's on his way to victory.

THE HOUSE OF REPRESENTATIVES

Two years ago I employed a novel, yet risky, strategy in attempting to predict the outcome of the House election. I focused on only two districts, one in Michigan and one in Virginia, predicted their outcomes, and then extrapolated from those two in an effort to predict the changes for the House as a whole. With skill, and a lot of luck, it worked.

Although this may be pressing my luck, I'm going to use the same methodology again. I'm only going to predict the outcomes in two House districts, the 1^st district in Ohio and the 5^th district in Indiana. Based on that I'll go on and deal with the result for the House writ large.

It's important to begin with remembering what happened in the House election two years ago. Not only did the Democrats recapture the House. They did so dramatically. They gained 41 seats, which was the largest such gain since 1974. In the 1974 election the Democrats gained 49 seats. It was the election that followed a few months earlier the resignation of President Nixon and the culmination of his Watergate conspiracy.

Last year's House election was also noteworthy in that the Democrats won the largest share of the popular vote in the history of either party recapturing the House majority, and turnout for that election was the highest it had been in a century. The Democrat's stunning success in 2018 was overwhelmingly Trump related. Three quarters of the seats the Democrats wrested from the Republicans were suburban where traditional Republicans, especially women, either did not vote or voted Democratic because of their growing antipathy to president Trump.

In addition Republicans turned their back on their party because of the debacle it had made of the health care issue. Remember that the House Republican majority had voted more than 50 times to repeal Obamacare. Their mantra was Repeal and Replace. But after Trump won in 2016, and GOP had control of the White House and the Congress they failed in their attempt to bring forward an alternative health bill that had any chance of being enacted. In fact the GOP's alternative proposals would have stripped health care coverage from more than 20 million Americans. That effort blew up in their face on election day in 2018.

Their effort was grossly inadequate, certain to fail, and it cost them control of the House. And the blame for this unforced error is shared by the president who never came forward with his own health plan alternative and also supported the still born proposals the GOP attempted, but failed, to push through Congress. Trump and his Hill counterparts, especially the House Freedom Caucus, managed to become a circular firing squad. It was stupid, stupid, stupid.

It's also important to recall that unfortunately most House seats are gerrymandered in a way so that only one party has any real chance of winning a gerrymandered district. Both the Democrats and the Republicans have been at the gerrymandering game for a very long time. Neither party shows any indication of curtailing or stopping this anti-democratic process.

What all this meant is that in 2018 the Democrats won most of the “winnable” seats. Thus there's not much upside left for them in this election.

The current lineup in the House is 232 Democrats, 197 Republicans, 1 Libertarian, and 5 vacancies. In order to recapture the chamber the GOP would need to gain a net of 21 seats on November 3^rd.

OHIO—1st DISTRICT

In the 1^st Congressional district of Ohio Republican Congressman, Steve Chabot is opposed by Democrat, Kate Schroder. Chabot has represented the district for all but two of the last 24 years. He is a staunch supporter of President Trump. Schroder is a newcomer, a mother, a cancer survivor, and has lived in Zambia for two years focusing on improving the health of children.

The district includes most of Hamilton County, Cincinnati, and suburban Warren County to its northeast. In 2016 Trump carried the district 51%-45%. In 2018 the long serving Chabot was reelected by a margin of 4.4%.

What we have here is a classic confrontation between an established Republican who has the president's back and his support versus a female newcomer with a background and interest in healthcare issues. And this is playing out in yet another suburban district that has been gerrymandered to favor the GOP, while at the same time being an example of a district where the president's support has been eroding over the past several years

Schroder defeats Chabot.

INDIANA-5^th DISTRICT

The 5^th Congressional district of Indiana includes the northern portion of Indianapolis, its northern and eastern suburbs, and several additional counties to the north, including all or portions of the cities of Carmel, Marion, Noblesville, and Kokomo. It is the wealthiest congressional district in the Hoosier state.

In 2016 Trump carried the district by 12%. In 2012 Republican Susan Brooks won the seat and has been reelected easily since then. She has also served as a Deputy Mayor of Indianapolis and as a federal prosecutor under President George W. Bush. However in June of 2019 Brooks announced she would not seek reelection this year.

Thus the battle for Indiana's 5^th pits Republican Victoria Spartz against Democrat Christina Hale in this historically suburban Republican district. Spartz is a Trump supporting firebrand. Spartz, an Indiana state senator, has run ads wearing camouflage, carrying a rifle, and saying she “will stand with Trump”.

Hale who has been an Indiana state representative has focused on combating sexual violence against women and children, and has given divisive issues a wide berth. She has previously won the endorsements of both the AFL/CIO and the Indiana Chamber of Commerce. That's something that rarely occurs

Spartz versus Hale will give the voters of the 5^th district of Indiana a starkly clear choice between a conservative Republican who is a Trump acolyte and a relatively moderate Democrat. In addition the 5^th district has a distinct Republican tilt to it, and Indiana is a state that President Trump will win with ease.

All that said, Hale defeats Spartz.

Remembering that most of the low hanging House fruit was picked by the Democrats in the House election two years ago, I predict that the Democrats will further enlarge their majority, though modestly. The Democrats will gain 8 seats in the House, and the final numbers will be 244 Democrats and 191 Republicans.

THE SENATE

The Senate consists of 53 Republicans and 47 Democrats. Of the Democrats two are technically Independents, King of Maine and Sanders of Vermont. But both caucus with the Democrats and for all practical purposes are Democrats. 35 Senate seats will be up for election this year. 23 of the 35 seats being contested this year are held by Republicans. 12 of the 35 seats being contested this year are held by Democrats.

I believe that 24 of the seats being contested this year are safe for the incumbent's party. The remaining 11 seats are in play and are discussed below.

MAINE

Republican Senator Susan Collins seeks reelection and her 5^th term in the Senate. She is opposed by Maine House Speaker, Sara Gideon. Collins has never faced a difficult reelection, until now. Collins has prided herself on being a centrist. As such she is one of the few Republicans in the Senate who has not always been in lockstep with Trump. In past elections the key to Collins easy reelection is because she commands the Pine Tree State's Republican vote and also wins the votes of substantial numbers of Democrats, especially women.

However, that applecart has been overturned. Trump and many of his staunchest followers in Maine are at best lukewarm over Collins because she has not always toed the Trump line. (How dumb is that with GOP control of the Senate at grave risk?) And at the same time Collins has seen a marked decline in the traditional support she has previously received from Democrats because she voted to confirm Brett Kavanaugh to the Supreme Court. Collins is caught in an impossible double bind.

GIDEON DEFEATS COLLINS. -1R

NORTH CAROLINA

Freshman Senator, Republican Thom Tillis, seeks reelection. He is opposed by former state senator, Democrat Cal Cunningham. This has become the most expensive Senate race in the nation's history. In large measure because both parties believe there is an excellent chance that the outcome of the Senate race here will determine which party controls the Senate next year. Like Collins in Maine, Tillis has seen some erosion in his support because he has not ALWAYS supported Trump, although in the main he has been a loyal and erstwhile Trump supporter. Unfortunately for Tillis, many of the Trump faithful demand total allegiance.

In addition Cunningham has hammered Tillis on the cash that he has taken from drug manufacturers and health insurance companies, while also voting to oppose the expansion of Medicaid in the face of the Covid pandemic. It has recently come to light that Cunningham has cheated on his wife. Cunningham has not denied the charge. However, it is unlikely that marital infidelity will cause Cunningham supporters to desert him.

CUNNINGHAM DEFEATS TILLIS. -1R

SOUTH CAROLINA

Republican Senator, Lindsey Graham, seeks a 4^th term. He is opposed by the former Chairman of the South Carolina Democratic Party, Jaime Harrison who is African American. South Carolina is a conservative state and likely will easily give the state's electoral votes to Trump on November 3^rd. However, polling shows the Senate race to be extremely tight. Harrison is the hand picked candidate of the National Democratic establishment, and he has access to unlimited cash.

In addition some Trump followers are unhappy with Graham given the fact that he trashed Trump during the 2016 Republican primaries. Graham is the Chairman of the Senate Judiciary Committee, and has led the successful fight that has culminated with Barrett's ascendancy to the Supreme Court. Were Graham to lose, it would signal a bloodbath for the GOP in Senate races.

GRAHAM DEFEATS HARRISON

GEORGIA

Both Senate seats in Georgia are up this November. In addition Georgia law provides that a run off election is mandatory in the event the winning candidate(s) November 3^rd do not have at least 50% of the vote. In that case a run off election between the top two candidates in either or both Senate races will occur in early January 2021. Thus it is possible that control of the Senate will be unknown until next January.

Republican Senator, David Perdue seeks reelection. He is opposed by Democrat Jon Osoff who won national attention in a losing bid in 2017 for what was the most expensive House race in the nation's history. Until recently Georgia has been a reliably Red state. No more. Now it's a Swing state.

Osoff has plenty of cash on hand for his bid to unseat Perdue, and thanks to his unsuccessful effort to win a House seat in 2017 he has name recognition throughout the Peach State. Perdue has been hobbled by allegations of using insider information about the coming Covid pandemic earlier this year to reap windfall financial benefits from stock trading.

This race will be a dead heat right down to the wire.

PERDUE DEFEATS OSOFF

Republican Senator Johnny Isakson resigned for health reasons late last year. The Republican Governor of Georgia appointed Kelly Loeffler to replace him last January. This election on November 3^rd is in fact a “Jungle primary” in which all candidates, regardless of party run against one another. If one of them, gets more than 50% of the vote that candidate wins. Otherwise the top two finishers, regardless of party, move on to the January 5^th 2021 runoff.

There are multiple candidates from both parties on the ballot this November. For the Republicans this includes Senator Loeffler and House member, Doug Collins. They are bitter rivals. On the Democratic side the principal candidate is Raphael Warnock, currently the Senior Pastor at the Ebeneezer Baptist Church in Atlanta, formerly the church of the Reverend Martin Luther King, Jr.

Expect a January run off election between Warnock and probably Loeffler.

WARNOCK DEFEATS LOEFFLER -1R

ALABAMA

Democratic Senator Doug Jones seeks reelection. He is opposed by Republican Tommy Tuberville, the former head coach of the University of Auburn football team.

Jones was initially elected in a special election in 2017 caused by the resignation of Republican Senator Jeff Sessions who had been nominated by Trump to be Attorney General. Jones' opponent in the 2017 election was Republican Roy Moore, a former Chief Justice of the Alabama Supreme Court, where he had been twice removed from that office by the Alabama Court of the Judiciary for judicial misconduct. In addition during the campaign against Jones in 2017 Moore faced allegations of sexual misconduct against underage girls in previous years.

For many Alabamians their three highest priorities are God, college football, and conservatism.

TUBERVILLE DEFEATS JONES +1R

IOWA

Freshman Republican Senator, Joni Ernst, seeks a second term. She is opposed by Democrat Theresa Greenfield. In 2016 Trump carried Iowa easily, by almost 10 points. Now both the presidential contest and the Senate contest are toss-ups. If Biden carries Iowa, Ernst will not survive the undertow.

GREENFIELD DEFEATS ERNST. -1R

KANSAS

Four term Republican Senator, Pat Roberts is retiring in normally reliably Republican Kansas. The election on November 3^rd will pit Republican Congressman, Roger Marshall against Kansas State Senator Barbara Bollier, who switched from the Republican to the Democratic Party in 2018. In normal years this would not be a race that is in play. This is not a normal year, and Bollier is in striking distance of Marshall in the heart of Trump country.

MARSHALL DEFEATS BOLLIER

COLORADO

First term Republican Senator Cory Gardner seeks reelection. He is opposed by Democratic former Governor John Hickenlooper. Colorado is on the cusp of losing its status as a Swing State. Gardner, like other endangered Republicans seeking reelection this year is hopelessly trapped between Trump and his adoring supporters who demand nothing less than total allegiance and an electorate in Colorado that is inexorably moving Left.

Gardner, like other Senate Republicans who will be defeated in this cycle, find themselves mousetrapped between uncompromising Trumpites on the far right and an electorate unwilling to embrace the rigidity of such a radical minority. How dumb is that?

HICKENLOOPER DEFEATS GARDNER -1R

MONTANA

First term Republican Senator, Steve Daines seeks reelection. He is opposed by Montana's Governor, Democrat Steve Bullock. At the presidential level Montana is typically reliably Republican. Bullock is a popular sitting Governor and was elected in 2016 by 4 points while Trump was carrying the state by 20 points. Montana's other Senator, Jon Testor, is also a Democrat and was reelected two years ago.

Both candidates are popular and well known to Montana voters. Trump will carry the state, but not by 20 points. It's going to be close between Daines and Bullock.

DAINES DEFEATS BULLOCK

ARIZONA

Arizona Republican Senator John McCain was last elected in 2016. He passed away in 2018 and Martha McSally was appointed to the seat until the next election, which is November 3^rd. The winner then will serve the remainder of McCain's term until 2022. McSally is opposed by Democrat Mark Kelly, a retired astronaut and the husband of former congresswoman Gabby Giffords who was severely wounded after having been shot several years ago.

The Grand Canyon State is no longer a Red state. Thanks to Trump, Trump's personal assault on former Senator McCain, and Trump's hostility to Latinos, Arizona is now in play. Kelly is well known and well liked in Arizona. In addition he has more than enough money to fuel his campaign.

KELLY DEFEATS MCSALLY -1R

If the above predictions are correct, the Republicans will lose a net of 5 seats and will lose control of the Senate. The lineup when the Congress reconvenes next January will be 52 Democrats and 48 Republicans.

CONCLUSION

Assuming that, having lost the control of the House of Representatives two years ago, the Republicans now forfeit the White House and the Senate, the question that obtains is, why? It's not as if the handwriting was not boldly and plainly on the wall. The crushing repudiation of Trumpism was made manifest two years ago when the voters ran the GOP out of the House of Representatives on a rail. At that point there was still time, plenty of time for Trump and the Republicans to face reality, to make significant policy and political adjustments to avert the 2020 election from being an even larger debacle than was the drubbing they were handed in 2018. They chose not to make any course corrections. How dumb is that?

If it comes to pass next Tuesday that the voters send Trump and his army of belligerent, yet unthinking, lemmings into the sea, it's worth stepping back and understanding what happened and why.

We all knew in 2016 that Trump had no chance to win. And most of us were more than OK with that “inevitable” outcome. After all Hillary Clinton received 3,000,000 more votes than The Donald. Clinton “knew” she would win. Trump expected to lose. And the nation's opinion leaders: the electronic and writing press, academics, corporate executives, the entertainment industry, and all of the “holier than thou” apostles of the Left all assumed victory was inevitable.

All of them were wrong. And they were wrong because Trump successfully brought just enough of the Forgotten Americans to the polls in just the right states. They believed that maybe, just maybe, Trump would restore their rightful place in the nation's expanding bounty.

Had Trump fashioned an agenda to do just that and do it in a way that did not go to war with those already at the table he had the opportunity to be not just a successful president, but a transformational president.

But Trump not only failed to do that. He never tried. Instead of surrounding himself with advisers who knew their portfolios better than he and who were encouraged to challenge him, Trump chose to fire and disparage pubically anyone who dared to cross his bow. The hard and depressing truth is that Trump is and remains an infantile bully. He actually believes that our job as citizens is to glorify him. The notion that it has been his job to serve us, all of us, has never entered his mind. If it had, we'd see evidence of it in his policies, his rhetoric, and his persona. We don't because he simply doesn’t have the right stuff. Even more depressing is the fact that his supporters comprehend none of this. Trump is a loser, and his adoring supporters are suckers. How's that for smarts!

Trump took over the Republican Party and destroyed it. He came to power with the Republican Party controlling both ends of Pennsylvania Avenue. He will depart with the Republicans controlling nothing. That's the Trump legacy. From Abraham Lincoln to Donald Trump, captures the catastrophe in six words.

We should be at the point now where Porky Pig says, “Th-Th-The, Th-Th-The, Th-Th...That's All Folks”. But we're not. Unfortunately there's more.

THE COMING COURT BATTLE

If Joe Biden wins the election on November 3^rd, do not expect Trump to go quietly into the night. You don't have to take my word for it. For weeks now Trump has been signaling the coming struggle in Court. He has repeatedly refused to say that he would relinquish power willingly having been defeated at the polls. He has repeatedly stated that the Democrats will illegally claim victory based on widespread fraud in the millions of mail in or drop off ballots. There is every good reason to believe Trump will initiate legal challenges to what he will allege are fraudulent, Democrat votes in numerous states.

Presumably he expects that when these cases work their way, as they will, to the United States Supreme Court that the Supreme Court will rule in his favor. After all, it will then have six conservative justices, three of whom will have been nominated by him.

However surreal and disruptive it turns out to be, Trump will in no way be deterred from plunging the nation into a constitutional crisis as he tries to snatch victory from the jaws of defeat.

But his extra-constitutional ploy will not work. The Supreme Court will rule against him, and the vote will not be close. What Trump has not tumbled to is that conservative judges not only are averse to rewriting laws from the bench, they are also averse to reversing the clear will of the electorate as they exercise their most important constitutionally guaranteed right—the right to vote.

What Trump will not do when he is resoundingly defeated by Biden is to paraphrase the words of John McCain when he was resoundingly defeated by Barack Obama in 2008.

McCain said, “Sen. Obama has achieved a great thing for himself and for his country. I applaud him for it...And my heart is filled with nothing but gratitude...to the American people for giving me a fair hearing before deciding that Sen Obama and my old friend Sen. Joe Biden, should have the honor of leading us for the next four years.”

So here's the Trump legacy. In 2018 Trump and the House Freedom Caucus surrendered the House of Representatives. In 2020 Trump and his supporters lost the Senate and the White House. Next January the Democrats, lusting for vengeance and lurching to the Left, will rule the roost. How's that for smarts!

As I indicated at the open, this election will amount to a collision between The Apprentice and Forrest Gump. Forrest said, “My mama says stupid is as stupid does”. And that's just what The Apprentice has been doing for the last four years.

LeRoy Goldman

October 29, 2020

CHIEF JUSTICE ROBERTS, “NO MÁS”

CHIEF JUSTICE ROBERTS, “NO MÁS”

By:

LeRoy Goldman

July 1, 2019

Who would have ever thunk that Chief Justice Roberts would forever sully his reputation and the reputation of the Supreme Court by channeling Roberto Duran? In his second fight with Sugar Ray Leonard for the Welterweight Championship in 1980, Duran refused to answer the bell for the ninth round by turning to the referee and saying, “No más”. And that's precisely what Chief Justice Roberts did in his majority opinion last week respecting the two political gerrymandering cases upon which the Court ruled, Rucho v. Common Cause and Lamone v. Benisek. Duran never escaped his self imposed, ignominious surrender. Neither will Roberts.

In both cases the plaintiffs allege that gerrymandering violated the First Amendment of the Constitution, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Paragraph 2 of Article I of the Constitution.

This 5-4 decision is breathtakingly bold and breathtakingly flawed. We can all hope, and I expect, that it will not stand the test of time. It's bold and flawed in that it unequivocally rules that the claim of unconstitutional political gerrymandering is one that is not justiciable, not within the legitimate purview of the Federal Courts to adjudicate. That draconian conclusion flies in the face of numerous Supreme Court rulings on redressing impermissible political gerrymandering dating back to the landmark Court ruling in Baker v. Carr in 1962.

Baker v. Carr was the landmark case in which the Court established the principle that redistricting was in fact a justiciable issue thus enabling the Federal courts to hear and decide such cases. It was in Baker that the Court established the principle of One Man, One Vote. The majority opinion was written by Justice Brennan, and the vote was 6-2, with Chief Justice Earl Warren in the majority. Two years later the decision was expanded and reinforced by the Court's ruling in Reynolds v. Sims. After he left the Court Earl Warren called the decisions in Baker v. Carr and Reynolds v. Sims the most important during his 16 year tenure on the Court, and that's no small potatoes in the face of Warren's 9-0 opinion in the 1954 Brown v. Board of Education case that struck down the 58 year old Court doctrine of Separate But Equal in public education, and sounded the death knell for segregation.

And there's more. The Court's ruling here, whether intended or not, strikes at and narrows the scope of the Court's most important decision contained in Marbury v. Madison in 1803 in which Chief Justice John Marshall brilliantly established the Supreme Court as the preeminent arbiter and interpreter of the United States Constitution. In so doing Marshall established the enduring principle of judicial review, which he underscored in his opinion by stating, “that a law repugnant to the constitution is void, and the courts, as well as other departments, are bound by that instrument”.

Roberts' majority opinion could have been more easily understood, though not accepted, had it been a ruling on only Rucho v. Common Cause, the North Carolina case. That's because the gerrymandering in the Tar Heel state is one in which the Republicans have gone way too far. Prior to their taking control of the Governors Mansion and both chambers of the state legislature in 2010 the North Carolina congressional delegation was divided 7-6 in favor of the Democrats. After the GOP sweep and the 2010 census the resulting balance favored the GOP 10-3.

Thus a ruling by the five conservative justices only on Rucho could have been understood as a blatant act of partisan favoritism to the GOP by the Court’s Conservative majority. However, the other case, Lamone v. Benisek, is an example of political gerrymandering run amok in precisely the opposite direction. That case out of Maryland is one in which the Democrats redrew the congressional district lines in order purge Republican members of Congress.

What we've got here is bipartisan egregiousness that the Court now condones by fleeing the field of battle. In so doing it offers up canards by stating that the problem can be addressed by Congress or State Courts.

Congress has proven that not only will it not beneficially address this problem, It has also proven that it is the prime mover in worsening the problem of political gerrymandering. To believe, as Chief Justice Roberts opines, that an epiphany will cause it to reverse course is delusional.

While it may be possible for state courts to ameliorate the deleterious effects of political gerrymandering, the fact of the matter is that by definition such a remedy relies upon and awaits actions in fifty states. It's reasonable to assume many of those actions will be in conflict with one another. Stop and think for a moment about how the Federal court system operates. Most cases taken up by the Supreme Court are ones that are intended to resolve conflicting opinions by the Federal Appeals Courts so that there is uniformity among the several states and in the nation. Resolving the worsening problem of political gerrymandering is a matter that requires a national set of rules that will fairly and uniformly govern the election of members of Congress from all states.

Roberts' notion of waiting for 50 different flowers to bloom or not in the various state capitols amounts to inappropriate and offensive buck passing, and he knows it.

I understand that this ringing condemnation of Chief Justice Roberts' ruling pulls no punches, and offers no comfort or excuse for its failure stand and deliver. But one need not rely on my assessment of its fatal flaws in order to reach such a conclusion. Here are the central tenets of the dissent in Rucho and Lamone from Justice Kagan. In the aggregate they demolish Roberts' holding.

Justice Kagan states in part:

“The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights. In so doing the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government. And checking them is not beyond the power of the courts. In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.

The 'power' James Madison wrote, 'is in the people over the Government, and not in the Government over the people.' Free and fair and periodic elections are the key to that vision.'

Partisan gerrymandering of the kind before us not only subverts democracy (as if that weren't bad enough). It violates individual constitutional rights as well. That practice implicates the Fourteenth Amendment's Equal Protection Clause. And partisan gerrymandering implicates the First Amendment too.

So the only way to understand the Majority's opinion is as follows: In the face of grievous harm to democratic governance...the majority declines to provide any remedy. For the first time in this Nation's history the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.

First and foremost, the majority says, it cannot find a neutral baseline from which to measure injury. And second the majority argues that even after establishing a baseline, a court would have no way to answer 'the determinative question: How much is too much?'

But in throwing up its hands, the majority misses something under its nose: What it says can't be done has been done. Over the past several years, federal courts across the country—including, but not exclusively, in the decisions below—have largely converged on a standard for adjudicating partisan gerrymandering claims. And that standard does what the majority says is impossible. It takes as its baseline a State's own criteria of fairness, apart from partisan gain. And by requiring plaintiffs to make difficult showings relating to purpose and effects, the standard invalidates the most extreme, but only the most extreme, partisan gerrymanders.

This Court should have cheered, not overturned, that restoration of the people's power to vote.

The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering. And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight.

The majority's most perplexing 'solution' is to look to state courts. But what do those courts know that this Court does not? If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn't we?

Of all the times to abandon the Court's duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court's role in that system is to defend its foundations. None is more important than free and fair elections.”

Justice Kagan's dissent makes clear thankfully that Roberts' ruling is fatally flawed. That It will not stand is clear. How long it will take for it to fall is not.

Regardless of that there is more to be said on political gerrymandering's twin, racial gerrymandering. Racial gerrymandering and its constitutionality was not part of the Court's decision last week in the Rucho and Lamone cases. But make no mistake about the relevance of racial gerrymandering to both the problems gerrymandering pose to free and fair elections and the corrosive way it interacts with political gerrymandering.

The hard fact of the matter is that political gerrymandering and racial gerrymandering are two sides of the same coin. Stuffing the gerrymandering genie back into the bottle necessarily requires dealing with both of its forms—political and racial.

The genesis of racial gerrymandering, government ordered creation of so called Majority-Minority congressional districts, grew out of the 1982 amendments to the 1965 Voting Rights Act. Those amendments say that if racially polarized voting exists and if a Majority-Minority district can be drawn, then it MUST be drawn. A Majority-Minority district is one that must have a large majority of minorities within its borders. These minorities are almost always Blacks or Hispanics. And it is the case that overwhelming numbers of Blacks and a large majority of Hispanics vote Democratic.

Thus the ever increasing number of Majority-Minority congressional districts are represented by Black or Hispanic Democrats. Today there are well over 100 such House districts, and that has been a treasure trove for minorities and for Democrats.

But not all of the news has been beneficial to the Democrats. Thanks to the Court's decisions in Baker v. Carr in 1962 and Reynolds v. Sims in 1964, wherein the principle of One Man, One Vote was established, it's necessary for all congressional districts to have essentially the same number of persons. And there's the rub.

If Blacks and Hispanics are required to be packed in very large numbers into Majority-Minority districts, the result is that there are far fewer of them for the rest of the state's congressional districts. That means all of the rest of the state's districts have a larger proportion of white voters, and that has proven to be a bonanza for the GOP. That excess of white voters is what enables the Republicans to gerrymander to their advantage. And that is the essential nexus that explains how the Democrats are the principal beneficiaries of racial gerrymandering and the Republicans are the principal beneficiaries of political gerrymandering. On balance the nexus between these two odious forms of gerrymandering has resulted in the creation of more Republican seats than Democratic seats.

Thus the only way to get at the deleterious effects of gerrymandering is to assault it in both of its corrosive forms. Rucho and Lamone attempted and failed to convince the Court that political gerrymandering was unconstitutional. Righting that wrong will have to await another day in Court. But how do we reform racial gerrymandering?

The answer is by recognizing that, like its kissing cousin, political gerrymandering, it too is unconstitutional! The Achilles heel of both forms of gerrymandering is that they both unconstitutionally cut across the bow of the First and Fourteenth Amendments to the Constitution.

In fact the Court came within a single vote of finding racial gerrymandering unconstitutional almost twenty years ago. The matter was before the High Court In a series of three cases decided between 1993 and 2001. Those cases were brought by Robinson Everett then a Duke University Law Professor and formerly the Chief Judge of Court of Military Appeals. Everett was a liberal Democrat with close connections to the African-American community in Durham, North Carolina. Everett deeply opposed racial discrimination against blacks, but he just as deeply opposed race-conscious policies that were designed to benefit one race over another. He believed that North Carolina's two Majority-Minority congressional districts were unconstitutional racial gerrymanders.

Judge Everett won in the first two cases, but lost the third and decisive case 5-4 when then Justice Sandra Day O'Connor switched her vote. It was a particularly bitter pill for Everett to swallow given the fact that in one of the previous cases Justice O'Connor had stated, “A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographic and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid.”

That outcome was two decades ago. Since then times have changed, and changed for the better. The American people have twice elected an African-American President of the United States. And he did not need a contrived district made up of overwhelmingly minority voters in order to win and win handily.

Moreover the notion that minority members of Congress like John Lewis, Elijah Cummings, James Clyburn, Marcia Fudge, Henry Cuellar, Jose Serrano, or Linda Sanchez can only win if they are placed in a congressional district with an overwhelming number of Blacks or Hispanics is patently absurd.

The composition of the Supreme Court is different today than it was twenty years ago. Another case challenging the constitutionality of the Majority-Minority districts may very well succeed. Were that to happen think about its consequences.

Since all Congressional districts must have essentially the same number of people, a Court ruling that found Majority-Minority districts unconstitutional would necessarily require that most of the minorities in those many districts would have to be placed in other districts. To a large extent those districts will be ones that the GOP has gerrymandered to its advantage. And then the overage of individuals in those districts will of necessity have to be moved to districts lacking sufficient numbers, the diminished former Majority-Minority districts. The net result is that all such affected districts become less gerrymandered and both the Republicans and the Democrats pay the price of the long overdue reform. How nice is that!

In 2007 in Parents Involved in Community Schools v. Seattle School District No. 1 Justice Roberts stated, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Chief Justice Roberts has unnecessarily dug himself and the Court into a deep hole in Rucho and Lamone. He needs to stop shoveling, take his own advice from 2007, and use it to end racial gerrymandering. Then we will see the entire row of gerrymandering dominoes begin to fall.

LeRoy Goldman

July 1, 2019