Every vote counts.

January 4, 2024

There were many moving parts to the news on Wednesday—most relating to Trump's bid to remain on the ballot. There was a backlash against a Fifth Circuit decision prohibiting physicians in Texas from stabilizing women experiencing pregnancy-related medical emergencies. Dozens of congressional Republicans made a stunt trip to the border to exaggerate a crisis that Congress could solve any time it chooses to do so. And Florida’s Surgeon General called for a halt to COVID vaccines based on debunked claims.

I close with a reflection on why “on-air” political consultants should stop saying that “100,000 voters in seven swing states will decide the 2024 election.” That claim is both false and dangerous. Every vote matters in every state—regardless of whether the state is blue, red, or purple. Turnout and enthusiasm are infectious—so are feelings of futility and apathy. Democratic consultants who slice and dice voter turnout to advise campaigns about micro-strategy need to knock it off—and I mean that in the nicest way possible. If they want their Democratic clients to win in 2024, they need to stop telling Democrats that their votes don’t matter unless they live in a swing state. Capiche?  

Let’s take a look at these stories.

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Trump resorts to election denialism in reply brief filed with D.C. Circuit Court.

Trump filed his reply brief in his appeal of Judge Chutkan’s order denying his motion to dismiss on grounds of presidential immunity. Trump's brief is here: Reply Brief of Defendant-Appellant President Donald J. Trump.

Trump's brief was bad—even by Trumpian standards. How bad was it? Aaron Blake wrote an op-ed for WaPo entitled, Trump lawyers’ doozy of a filing on voter fraud. In a case where Trump is accused of conspiring to prevent the peaceful transfer of power by promoting false allegations of voter fraud, one would think that repeating those false claims of voter fraud on appeal is a losing strategy. Not so with Donald Trump.

In an apparent break with his lawyers, Trump forced them to include a citation to a post by Trump on Truth Social (from yesterday) that cited to an anonymous, clownish report on alleged voter fraud in 2020 that lacked any evidentiary support. (To be clear, citing to a defendant’s social media post as evidence in an appellate brief is lunacy, but relying on an anonymous report attached to the social media post is next-level madness.)

As Aaron Blake notes, the report cited in the brief begins with this bracing statement: “In actuality, there is no evidence Joe Biden won.” It is downhill from there. The report repeats the claim that the election was “over” when the polls closed (when Trump was ahead)—ignoring the pesky fact that tens of millions of votes had yet to be counted.

Blake continues,

The introductory paragraph also includes a footnote that says Arizona “was fraudulently called for Joe Biden by Fox News” on election night. A network’s calls on any given race do not determine the election, and Biden won Arizona.

There is more, but you get the picture.

Trump did address the issue of whether Judge Chutkan’s “interlocutory” (or interim) order is appealable. But in doing so, he relies almost entirely on precedent from the D.C. Circuit Court of Appeals, ignoring the binding precedent set by the US Supreme Court in Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989). Trump merely says that the holding in Midland Asphalt is incorrect—without explaining why.

Trump's lawyers will be grilled on January 9 by the D.C. Circuit about their failure to address controlling Supreme Court precedent in Midland Asphalt. On this record, Trump's failure to rebut the holding in Midland Asphalt should be viewed as a concession that Judge Chutkan’s order is not appealable. If the D.C. Circuit rules that Judge Chutkan’s order is not appealable, Trump will be tried this summer. Stay tuned.

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Trump petitions US Supreme Court to review Colorado Supreme Court decision.

Trump filed a petition asking the US Supreme Court to review Colorado’s decision to bar Trump from the primary ballot. Trump's petition is here: Trump v. Anderson | Petition for Writ of Certiorari.

The opening lines in Trump's opening brief are an insult to all Americans. He wrote,

It is a ‘fundamental principle of our representative democracy,’ embodied in the Constitution, that ‘the people should choose whom they please to govern them.’

Trump was disqualified by Colorado precisely because he attempted to overturn “the choice of the people” in the 2020 election. And, as noted above, he continues to deny the outcome of the 2020 election in a filing made in the D.C. Circuit Court on Tuesday of this week. Shameful!!

There is little that is new in Trump's brief. But the manner in which Trump phrased the question to be considered could resolve dozens of state challenges to remove Trump from the ballot. Trump wrote,

The Supreme Court of Colorado held that President Donald J. Trump is disqualified from holding the office of President because he “engaged in insurrection” against the Constitution of the United States—and that he did so after taking an oath “as an officer of the United States” to “support” the Constitution. The state supreme court ruled that the Colorado Secretary of State should not list President Trump’s name on the 2024 presidential primary ballot or count any write-in votes cast for him. The state supreme court stayed its decision pending United States Supreme Court review.

The question presented is:

Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?

Trump has thus raised the critical questions of whether he is “an officer” of the US, whether he “engaged in insurrection” after “taking an oath to support the Constitution.” Depending on how the Supreme Court rules, states across the nation could bar Trump from their ballots—or permit him to run for president in 2024.

If the US Supreme Court properly applies the law to the facts—and applies the plain words of the Constitution as written—it will uphold the ruling of the Colorado Supreme Court. In the ordinary course, the earliest the Court will announce whether it will grant Trump's petition for review would be Monday, January 8, 2024.

There are too many variables to predict an outcome—especially with a reactionary majority motivated by extra-judicial goals. But we will know soon whether the Supreme Court will choose to address the urgent questions raised by Colorado’s ruling.

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Reaction to the Fifth Circuit ruling denying care to women experiencing pregnancy-related emergencies.

I wrote yesterday to condemn the decision of a Fifth Circuit appellate panel denying women in Texas stabilizing care when they are experiencing pregnancy-related emergencies. Two opinion pieces bring a sharper focus to the cruel nature of the ruling. Ruth Marcus described the situation in her op-ed in the Washington Post, Texas Doesn't Care About Women. (Accessible to all.)

Marcus writes,

Texas doesn’t care if pregnant women die. That comes as no surprise in the post-Dobbs abortion landscape. But it’s worth noting when the state’s unceasing cruelty is aided and abetted by federal judges.

That’s what happened on the first business day of 2024, when the ultraconservative U.S. Court of Appeals for the 5th Circuit ruled that a federal law requiring hospitals to provide emergency care doesn’t mean that they must perform abortions in situations when continuing the pregnancy would place the woman’s life or health in “serious jeopardy.”

Mark Joseph Stern of Slate is equally direct in his criticisms:

The ruling proves what we already know: Roe’s demise has transformed the judiciary into a kind of death panel that holds the power to elevate the potential life of a fetus over the actual life of a patient.

These cases give SCOTUS an opportunity to limit the damage of its cavalier eradication of reproductive rights. The conservative justices could use [the decision] to draw a line in the sand, creating a nationwide guarantee of abortion access when a patient’s health is at risk. But doing so would mean admitting that, last time around, the court got it wrong—that overturning Roe did not remove the judiciary from the abortion debate, but shifted life-or-death decisions about pregnancy into the hands of judges who know nothing about the practice of medicine.

The Supreme Court will be asked to review the Fifth Circuit decision this term. While it might try to evade review in this case, it can’t run forever. As Stern notes, the Court is witnessing the consequences of its rushed decision to overturn Roe v. Wade. In the meantime, the lives of women in Texas (and across the nation) are at risk.

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Republican border stunt.

Congress has failed to pass immigration and border security reform for two decades. Republicans controlled Congress from 2014 to 2018 but failed to pass legislation to address the so-called “crisis” at the border. Biden proposed a supplemental border security bill in November (along with aid for Ukraine and Israel) but Congressional Republicans have stalled action on that bill because they don’t want to solve the border issue—the want to keep it alive as an election issue. See Newsweek, Republican Brags About Sabotaging Border Security Deal.

Against this backdrop, Speaker Mike Johnson led dozens of House Republicans to a border town in Texas to criticize President Biden and lay the groundwork for impeaching Homeland Security Secretary Alejandro Mayorkas. The media lapped it up, unable to resist the opportunity to be manipulated in exchange for 60 seconds of a talking head and 30 seconds of “B-roll” of the migrants lining up at the border.

Our immigration system is broken, and the border is not an instrument capable of repairing that system. It is Congress’s responsibility to reform the US immigration system. Its failure to do so is not Joe Biden’s fault. Don’t fall for Mike Johnson’s publicity stunt to convince the press—and you—otherwise.

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Florida Surgeon General calls for halt to mRNA vaccines.

Of the many horrible things Ron DeSantis has done to the people of Florida, appointing Joseph Ladapo as Surgeon General is at the top of the list. Ladapo spread disinformation about Covid and vaccines during the pandemic. See, e.g., Salon, "It's a lie": Ron DeSantis' surgeon general accused of personally altering COVID vaccine study, and Florida Politics, Twitter flags anti-vaccine guidance from Joseph Ladapo as misinformation.

He is at it again. See The Hill, Florida surgeon general recommends against mRNA COVID shots, cites discredited theory. As explained by The Hill, Ladapo claims that “fragments” of mRNA vaccine can “integrate” with a person’s DNA to cause harm. Ladapo forwarded his claim to the FDA.

Per The Hill,

In a letter responding to Ladapo, the FDA refuted each of his assertions and noted that there have been over one billion shots administered worldwide, and no safety concerns related to residual DNA have been identified.

Peter Marks, director of FDA’s Center for Drug Evaluation and Research, essentially accused Ladapo of spreading misinformation.

“On first principle, it is quite implausible” that the vaccines could contaminate someone’s DNA, Marks wrote.

Ladapo is damaging the health of millions of Americans who will hear and remember only his baseless, disproven theory—leading to unwarranted vaccine hesitancy. Again, Ron DeSantis is to blame for appointing an unqualified anti-vaxxer as Florida’s Surgeon General.

Concluding Thoughts.

I watch “All In” with Chris Hayes on MSNBC whenever I can. Hayes is smart, fair, and temperate. He stands side-by-side with Rachel Maddow and Lawrence O’Donnell in professionalism and dedication to democracy. We need more journalists like Chris Hayes.

But he frequently hosts guests who are political consultants—like David Plouffe—who view the US presidential election as a board game that is won or lost in a handful of congressional districts in swing states. Plouffe frequently says—and Hayes repeats—“The election will be decided by 100,000 voters in seven swing states.”

That statement is simply not true. Moreover, it is dangerous and misleading. In order for the “swing” states to make the difference in the presidential election, Democrats must turn out 60 million-plus votes in other states. If they fail to do so, the so-called swing states may be meaningless. And the surest way to lose a solid blue state is to convince Democrats in those states that their votes don’t count—because (allegedly) “The election will be decided by 100,000 people in seven swing states.”

Compounding the damage will be state legislative seats that may be lost—as well as seats on school boards, city councils, election boards, trial and appellate courts—because of depressed turnout.

And, finally, there are “swing” congressional districts and “swing” US Senate seats in solidly blue or red states. Telling voters that “The election will be decided by 100,000 votes in seven swing states” could depress turnout in “non-swing states” and cost Democrats control of Congress. Democratic control of Congress is a fail-safe against a Trump victory, so it matters—a lot.

I know what Hayes, Plouffe, and others mean when they say that the presidential election may be decided by hundreds of thousands of votes. But their shorthand recitation of that possibility—without acknowledging the urgent need for turnout at every level in every swing state—could unintentionally depress turnout in an election where every vote will count.

Someone who reads this newsletter must know Chris Hayes and other commentators who use the shorthand that the election “will be decided by 100,000 votes . . . .” A friendly conversation could prevent Democrats in non-swing states from wrongly believing their votes don’t count. They do.

Every vote matters in every state in every election—even where Democrats have little hope of overcoming gerrymandered districts. As I said in my opening paragraphs, turnout and enthusiasm are infectious—so are feelings of futility and apathy.

We need Democrats in the reddest areas of red states to model passion and perseverance to inspire others who may feel hopeless and defeated. They may not be able to flip a congressional seat, but they might succeed in adding a Democrat to the city council.

Change has to start somewhere—but it won’t start anywhere unless we believe in our bones that the simple but profound act of voting will be the redemption of our democracy. Tell a friend. And Chris Hayes.

Talk to you tomorrow!