“Women are not without electoral or political power.”

April 3, 2024

President Biden issued a statement on Tuesday condemning a ruling by the Florida Supreme Court that effectively institutes a six-week abortion ban. The state supreme court’s decision overruled a 35-year-old precedent recognizing that Florida’s constitution protected reproductive liberty. Biden’s statement said, in part,

[The decision] will likely trigger Governor DeSantis’ even more extreme law that would prevent women from accessing care before many even know they are pregnant. It is outrageous.

These extreme laws take away women’s freedom to make their own health care decisions and threaten physicians with jail time simply for providing the medical care that they were trained to provide.

Vice President Harris and I stand with the vast majority of Americans who support a woman’s right to choose, including in Florida, where voters will have the opportunity to make their voices heard in support of a reproductive freedom ballot initiative this November.

We . . . continue to call on Congress to pass a law restoring the protections of Roe v. Wade in every state.

As President Biden noted, the six-week abortion ban is effectively on the ballot in Florida in November, when Floridians will have the opportunity to enshrine reproductive liberty in the Florida constitution. Public support for the six-week ban is in the low 20% range.

The text of the proposed constitutional amendment (called “Amendment 4”) reads as follows:

No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.

Under Florida’s law governing constitutional amendments, Amendment 4 must garner at least 60% of the vote to pass. Although that is a high bar, it is not impossible. Other initiatives have surpassed the 60% threshold (approving medical marijuana and requiring parental consent for a minor to obtain an abortion).

As explained in an article on Substack by MCIMAPS, Floridians have reason to hope that Amendment 4 will pass by the 60% threshold in November. See MCIMAPS Report, Abortion and Weed will be on the Florida Ballot in 2024 (substack.com).

Will Amendment 4's presence help President Biden and other Democrats' chances on the Florida ballot in November?

Possibly, even probably.

• First, because of the 60% threshold, supporters of Amendment 4 will have every incentive to drive massive turnout.

• Second, supporters of a constitutional initiative to legalize recreational use of marijuana will also drive turnout in November.

• Third, as noted in an analysis by Mark Joseph Stern, the justices on the Florida Supreme Court indicated in Tuesday’s opinion that they favor the “fetal personhood” doctrine, which would outlaw abortion (and contraception) in Florida at every stage of pregnancy from the moment of conception. See Mark Joseph Stern in Slate, The threat lurking behind Florida’s November abortion vote. If Amendment 4 fails to pass, the six-week ban will likely turn into a total prohibition on abortion. When Florida voters realize the additional implications of failure to pass Amendment 4, turnout should be massive.

• Finally, Senator Rick Scott is up for re-election in November. Rick Scott supports the six-week ban (“If I was still governor, I would sign the bill.”) His position on abortion is based on his belief that life begins at conception, a position that aligns with the fetal personhood movement in Florida.

There is reason to believe that Senator Rick Scott is vulnerable. See The Hill, (3/5/24), Scott narrowly leads Mucarsel-Powell in Florida Senate race: Poll. Rick Scott will be forced to run on a six-week abortion ban and the fetal personhood doctrine—positions that are highly unpopular in Florida.

The Biden administration is right to say that Florida is “winnable” for Democrats. Although the ruling by the Florida Supreme Court will impose hardship on thousands of women in the next seven months, the anti-choice extremists have overreached to the point they are prompting a national backlash.

In late-breaking news on Tuesday, it appears pro-choice activists have secured enough signatures to place a pro-choice constitutional amendment on Arizona’s ballot in November. See Arizona Likely To Join Growing Group Of States With Abortion Ballot Initiatives | Talking Points Memo. The group Arizona for Abortion Access has collected more than 506,000 signatures; only 383,923 are required to place the measure on the ballot.

Let’s make Justice Alito regret his attempt to patronize women with his snide statement in Dobbs, “Women are not without electoral or political power.” No, they are not. Nor are their partners, parents, siblings, friends, and fellow citizens. The reactionary anti-choice movement is about to find out just how much electoral power they have.

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Judicial developments

Part of the MAGA plan for 2024 is to weaken the courts as an institution capable of checking the power of an aspiring dictator. MAGA extremists and their legal wing—the Federalist Society—aren’t waiting for the results of the 2024 election to begin their assault on the judiciary.

What can we do to blunt that assault? First, we can and should enlarge the Supreme Court to dilute the power of the reactionary majority. Second, we can encourage and support bar associations and legal advocacy groups like Lawyers Defending American Democracy that hold members of the bar accountable for actions that undermine the rule of law.

On Wednesday, the Chief Judge of the Northern District of Texas said that the district's judges will not follow the Judicial Conference guidelines that discourage “judge shopping.” The Northern District is notorious for funneling sham litigation to a single reactionary judge—Judge Matthew Kacsmaryk—who routinely rules against the Biden administration on specious grounds. See HuffPo. Conservative Federal Court Says It Won’t Follow New Guidelines Against 'Judge Shopping’.

The Judicial Conference includes the Chief Justice of the United States and the chief judges of each federal circuit court of appeals. As such, its recommendations carry great weight. However, the Northern District of Texas judges were unimpressed by the Judicial Conference's recent rule prohibiting judge shopping.

After the Judicial Conference published the rule, Senator Mitch McConnell wrote to the Chief Judge of the Northern District of Texas to say that the rule against judge shopping was “voluntary.” That was all it took for the Northern District judges to diss Chief Justice Roberts and his fellow chief judges.

As I noted, litigants will continue to “judge shop” sham litigation as long as the circuit courts of appeals and the Supreme Court tolerate such tactics. If only we had a Chief Justice who took his role seriously.

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Trump’s attorneys seek to disqualify Judge Merchan

In a separate development, Trump's attorneys have filed a letter requesting permission to file a motion to recuse Judge Juan Merchan from Trump's election interference trial set for April 15.

The letter requesting permission to file the motion continued Trump's attacks on Judge Merchan’s daughter. The letter said, in part,

Your Honor’s daughter is an executive and partner at Authentic Campaigns, Inc. As recently as February and March 2024, Authentic has used social media to market its connections to President Biden and Vice President Harris while deriding President Trump.

Authentic and Your Honor’s daughter are making money by supporting the creation and dissemination of campaign advocacy for President Trump’s opponent, political rivals, and the Democrat party.

It can no longer be ignored that Authentic’s commercial interests are benefitted by developments in this case that harm President Trump’s penal interests and divert his efforts from running his leading campaign for the presidency by requiring him to prepare and sit for trial during the general election.

So, Trump is claiming that Judge Merchan is manipulating the criminal trial to increase the “commercial interests” of his daughter’s employer, a marketing firm that describes services provided to then-candidate Biden in the 2020 campaign.

The argument is ludicrous. But it is another example of Trump's assault on the judiciary—and constitutes a form of “judge shopping.” The only judge that Trump will accept is one who is politically indebted to Trump—like Judge Aileen Cannon. Otherwise, Trump will find a reason—any reason—to challenge the judge’s integrity.

The point is this: Presidents swear an oath to protect the Constitution. By implication, they are responsible for upholding the rule of law. For Trump, the rule of law is an impediment to personal power—which is a vehicle to personal enrichment. In a rational media environment, Trump's unprecedented assault on the judiciary would be disqualifying.

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Concluding Thoughts

My wife and I are in Texas to observe the eclipse (weather permitting!) and to meet readers. It is easy (and wrong) to view Texas as a red monolith of MAGA extremists. True, Texas Republicans have gerrymandered their way into electoral dominance in the state legislature. However, in the 2020 presidential election, Trump won 5.8 million votes, and Biden won 5.2 million votes—totals that suggest a roughly equal divide between Democrats and Republicans in Texas.

While Trump's margin of victory was sizable (600,000 votes), more than 10 million eligible Texas voters did not show up for one of the most consequential elections in a century.

There is plenty of room for improvement in “getting out the vote” in Texas. The math says that Democrats can win Texas if they can motivate Democrats and persuadable independents to show up at the polls in greater numbers than Republicans. There is no logical or logistical impediment to achieving that goal. It is simply a matter of execution.

Consigning Texas to a “red state” status is wrong. Indeed, recent polls suggest that Colin Allred is in a tight race with Ted Cruz—a despised icon of MAGA extremism. It is too early to rely on polls as predictors, but it is not too early to say that something has changed in Texas—as in many other states. The MAGA extremists have pushed a hateful, anti-democratic agenda far beyond the breaking point for many Texans.

While it is true that all politics is local, all elections have become national. Although Texas does not have an “Amendment 4” on the ballot in 2024, Ted Cruz will be forced to defend the extreme anti-liberty agenda adopted in other states.

We are seven months out from the election and there are many moving parts, each of which seems to conspire against Republicans. The bill is coming due for the extremist positions adopted by gerrymandered legislatures. Americans are being forced to endure cruelty inflicted by MAGA extremists, but if that is what it takes to defeat the threat of tyranny, so be it. We are up to the task—and the American people are beginning to understand the stakes. That is a hopeful sign, indeed.

Talk to you tomorrow!