The lesson of Ohio’s Issue 1.

August 9, 2023

          The lesson of Ohio’s Issue 1: Turnout matters. Don’t let anyone ever try to convince you otherwise.         

          Ohioans firmly rejected Issue 1 on Tuesday. Issue 1 was a cynical attempt by Ohio Republicans to raise the threshold percentage for approving citizen initiatives to amend the state constitution. The Republican legislature scheduled Issue 1 for a special election in August because Ohioians will vote in November to add the right of reproductive liberty to the Ohio constitution. In other words, Republicans were trying to change the rules for amending the state constitution in the middle of the game.

          There are many lessons to be learned from the defeat of Issue 1. But the most powerful lesson is that turnout matters. Republicans scheduled the vote on Issue 1 in August because turnout in August special elections is miserably low by historical standards. Republicans hoped they could scrape together a modest turnout by Republicans in August to prevent the majority of Ohioans from exercising their right to change their constitution.

          But Republicans were wrong in assuming that Democrats would not turn out for a special election in August. Democrats rose to the challenge by turning out in record numbers. Although the results are not final, Republicans also turned out in historic numbers, but Democrats turned out in even greater numbers. That is a mirror image of the 2020 victory by Biden: Trump garnered more votes than any incumbent president in history but Biden won because more Democrats turned out to vote than did Republicans.

          It is difficult to overstate the hope and confidence Democrats should take from the results in Ohio—and similar victories in special elections in Kansas and Wisconsin, and the over-performance by Democrats in the 2022 midterms. The implications for 2024 are huge.

Why?

          Because the Ohio victory demonstrates that the polls showing Biden and Trump in a close race fail to account for the “turnout effect” in response to Dobbs, Bruen (gun control), Kennedy (school prayer), 303 Creative (anti-LGBTQ decision), “Don’t say gay” laws, six-week abortion bans, racial gerrymandering, and anti-environment decisions by the Supreme Court. And, of course, Democrats and Independents will be motivated to prevent the election of an insurrectionist, thrice indicted former president who has vowed to persecute his perceived enemies.

          I believe that Joe Biden can and will beat Trump on the merits in a head-to-head match-up. But Biden will have the added advantage of the emotionally motivated turnout demonstrated in Ohio when reproductive liberty and GOP corruption are on the ballot. We can take nothing for granted, but we should recognize our strengths that are routinely ignored, dismissed, or belittled by pollsters, pundits, and the press.

          Here’s my point: Time and again we observe that Democrats have the moral and political high ground that translates into electoral success. And yet, we waste emotional energy fretting about made-for-Fox polls and bad-faith Republican gaslighting designed to undermine our confidence. Ohio proves that we have every reason to be hopeful, but no reason to be complacent.

          But there is more to be said: Everyone who helped get out the vote in Ohio should claim this victory as their own. Every postcard, letter, phone call, text, door knock, table session, post, Tweet, blog, and face-to-face interaction helped make the victory possible. Take a bow!

          And we should thank Ohio voters for rising to defend their right to self-determination. The defeat of Issue 1 is a victory that belongs to Ohioans but serves as an inspiration to the nation.

          To state the obvious, the job is only half done. The citizens of Ohio must now amend their constitution to add the right of reproductive liberty.

Supreme Court leaves restrictions on “ghost guns” in place pending resolution of appeals.

          The Bureau of Alcohol, Tobacco, and Firearms issued regulations requiring the component parts of “ghost guns” to be marked with serial numbers to allow them to be traced. A Texas judge ruled that the regulations are unconstitutional in a loopy decision that defies logic. See Ian Millhiser, Vox, The Supreme Court handed gun groups a rare defeat on ghost guns.

          The DOJ appealed and asked the Supreme Court to stay the trial court’s decision pending the final resolution on appeal. On Tuesday, a 5-4 majority of the liberal justices plus Roberts and Barrett granted the DOJ’s request for a stay of the trial court’s decision. As a result, the ATF regulations remain in effect. See CNN, Supreme Court revives federal ghost gun restrictions; Roberts and Barrett join liberals.

          All Americans should be grateful that five justices allowed the ghost gun regulations to remain in effect. But the fact that Alito, Gorsuch, Kavanaugh, and Thomas voted to allow the trial court’s decision striking down the regulations to take effect is disturbing. As explained in CNN, the ATF regulations are necessary to prevent criminals from assembling untraceable weapons:

The rule does not prohibit the sale or possession of any ghost gun kit, nor does It block an individual from purchasing such a kit. Instead, it requires compliance with federal laws that impose conditions on the commercial sale of firearms. Those conditions include requirements that commercial manufacturers and sellers mark products with serial numbers and keep records to allow law enforcement to trace firearms used in crimes.

          While we should hope that Roberts and Barrett have seen the light and regret their votes in Bruen, we should recognize that the Court’s decisions in Heller and Bruen created an individual right to gun ownership that would have been unrecognizable to the Framers of the Constitution. Nothing about today’s ruling suggests that we should relent in our efforts to reform, restructure, and rehabilitate the Court.

An explanation for Judge Cannon’s inexplicable ruling.

          As noted yesterday, Judge Cannon issued a bizarre ruling on Monday in which she ordered the DOJ to address a legal question that has no relationship to the DOJ’s motion regarding possible ethical conflicts among Trump's attorneys. Cannon ordered the DOJ to address whether it is appropriate for the DOJ to continue with grand jury investigations in other jurisdictions that bear on Trump's criminal liability for theft of defense secrets.

          The answer to Cannon’s question is, “Absolutely, yes!” Trump moved the documents and displayed them at his Bedminster golf resort. There may be other defendants to be investigated and charged. The DOJ’s continued investigation is, therefore, perfectly normal. The fact that Cannon seemed surprised by that fact is bizarre.

          How and why did Judge Cannon come to such a ludicrous position?

          Andrew Weissman suggested an answer on Tuesday. Weissman noted that a former Trump attorney—Jim Trusty—appeared on Fox News on Sunday evening and espoused the ludicrous theory that Judge Cannon employed in her order on Monday. So, it appears that Judge Cannon is getting her legal guidance from discredited former Trump attorneys appearing on Fox News.

          If true, Cannon’s action is pathetic, unethical, and corrupt. It is difficult to imagine that she could disgrace herself beyond her humiliation by the 11th Circuit in the search warrant case. But she has. It is only a matter of time before she makes a mistake so prejudicial and reckless that recusal will be unavoidable.

NYTimes reveals new coup memo.

          The J6 indictment refers to a memo by Trump attorney Ken Cheseboro. The NYTimes has obtained a copy of that memo and revealed on Tuesday that Cheseboro knew that efforts to delay the congressional count of the electoral votes were illegal. He nonetheless recommended that Trump proceed with the strategy to “buy time”—to allow the state legislatures to replace the duly elected slates of electors with the fake electors appointed by vigilante Republicans acting in secret. See NYTimes, Previously Secret Memo Laid Out Strategy for Trump to Overturn Biden’s Win.  (This article is accessible to all.)

          Per the Times, Cheseboro recognizes that his proposed strategy is not likely to succeed if reviewed by the Supreme Court but says the point is to gain delay:

Even if, in the end, the Supreme Court would likely end up ruling that the power to count the votes . . . does not lie with the President of the Senate [i.e., the Vice President] but instead lies with Congress . . . letting matters play out this way would guarantee that public attention would be riveted on the evidence of electoral abuses by the Democrats, and would also buy the Trump campaign more time to win litigation that would deprive Biden of electoral votes and/or add to Trump's column.

          Cheseboro thus suggests a strategy of delaying the electoral count (which is illegal) in order to give Trump time for the fake electors plot to succeed (which is also illegal). In his memo, Cheseboro misrepresents a prior article by Professor Lawrence Tribe that addresses Florida’s election laws as they existed in 2000. Cheseboro misrepresents Professor Tribe’s views as supporting the proposition that state legislatures can continue to select electors beyond January 6th.

          Professor Tribe has, in turn, published an article that explains how Cheseboro is misrepresenting Tribe’s views. See Laurence Tribe in Just Security, Anatomy of a Fraud: Kenneth Chesebro’s Misrepresentation of My Scholarship in His Efforts to Overturn the 2020 Presidential Election.

          Professor Tribe explains, in part,

I can say with confidence that the proposition that Chesebro misattributes to me is one I have never embraced. Among other things, it completely disregards the role of the Electoral Count Act – and, even more fundamentally, of Article II of the Constitution in empowering Congress to set the “Time of chusing the Electors, and the Day on which they shall give their Votes, which Day shall be the same throughout the United States.”

          So, Cheseboro knew his theory would not be supported by the Supreme Court and deliberately mischaracterized Professor Tribe’s views to support the nonsensical fake electors’ plot. If you see or hear anyone claim that Professor Tribe supports Trump's view of the power of state legislatures to appoint new electors after January 6th, that is not true. Refer them to Professor Tribe’s article in Just Security.

Founding Members

          Founding Members received a separate communication on Tuesday with dates for our monthly Zoom video conferences for the coming year. Founding Members should check their inboxes for the email.

If you are a monthly or annual paying subscriber and would like to join our Founding Member monthly interactive video conferences, check out the details by clicking on the “Subscribe Now” or “Subscribed” button below.

Interested in helping Alaska Democrats?

           You may recall that my wife and I traveled to Alaska earlier this year on a “Northern Lights tour.” While we were there, we met with a dozen readers of this newsletter in Anchorage. We were astounded at the level of commitment of those readers to helping the people of Alaska, a commitment that is tied to breaking the Republican vise grip on the levers of government at every level. Jill and I still talk about our meeting with the Alaska Democrats who are a small but hardy band of true believers holding down a blue fort in a red state—until Democrats can turn the tide in Alaska.

          When the Senate Circle invited me to moderate a discussion of Alaska’s “907 Initiative”, I jumped at the chance. (“907” refers to Alaska’s telephone area code.)  The 907 Initiative is an independent, state-based “communications hub” that will work in and out of electoral cycles to invest in year-round messaging, grassroots organizations, and opportunities for electoral “pick-ups” by Democrats. 

For example, GOP US Senator Dan Sullivan is a top opportunity for a Democrat pick-up. Sullivan has not defined himself to Alaskans and remains a vulnerable candidate on abortion and other issues where he does not represent the majority of Alaskans. Getting early money to the 907 Initiative will help them hold Sullivan accountable.

If you are interested in Alaska, please join me for a Zoom event on August 15 to support Alaska's new communications hub, the 907 Initiative. I will moderate the discussion about Alaska's shifting political landscape and building the infrastructure for more victories like Rep. Mary Peltola's 2022 US House wins. As a special bonus for interested attendees, I will present a slideshow of my Alaska “Northern Lights” tour from earlier this year.

I hope you'll join me on the 15th at 7pm ET/6pm CT/5pm MT/4pm PT/3pm AK. You can donate to register here and please email David@senatecircle.org with any questions.

 Concluding Thoughts.

Everyone who helped get out the vote in Ohio should be rightly proud of their great work! I am proud of each of you and grateful for your hard work and sacrifice. Thank you!

          For those who are upset that Judge Cannon is transparently biased in favor of Trump, take heart from the fact that Judge Tanya Chutkan continues to hold Trump and his legal team to a brisk pace. After Trump's lawyers ignored Judge Chutkan’s order to provide times before Friday for a hearing on the protective order, Judge Chutkan set a hearing on Friday morning. The hearing should set the tone for all future hearings in the case.

          As I have noted before, we must not conflate the criminal proceedings and the campaign. As long as Trump does not become president for a second time, he will be convicted of one or more felonies. Whether and for how long he will serve time in prison is a separate question that we can debate when his convictions become final. While it would be helpful for the American people to know “if their president is a crook” before November 2024, most people will not need a final conviction to know that Trump is guilty of multiple felonies.

          Why am I emphasizing the importance of separating the campaign and the criminal proceedings? For two reasons. First, the criminal proceedings will have a volatility greater than that of the campaign. Second, you can affect the outcome of the campaign but there is nothing you can do to affect the outcome of the criminal proceedings. The best approach, therefore, is to devote your efforts to maximizing turnout to ensure victory—as Ohio demonstrated today.

          I will be on the road on Wednesday and may send a short(er) newsletter tomorrow if I do not have reliable access to the internet.

Finally, as a point of grandfatherly pride, I note that my wife’s blog for today includes a picture (at the end) of me with our youngest granddaughter. See Every Day with Jill, Beach Bday at Paradise Cove. Thanks, as always, to my Managing Editor for recording our happy occasions together!

          Talk to you tomorrow!