PEOPLE FOR BLOG

Republicans Revive Bold Scheme to Rig Presidential Elections

This was originally published at The Huffington Post.

After Republicans failed to capture the White House in 2012, they dusted off a tried-and-true plan to improve their future electoral prospects. No, they wouldn't moderate their views or expand their appeal to win votes. They would just change the way that the votes are counted!

The plan: to rig the electoral college with the ultimate goal of squeaking out a Republican presidential win, even in an increasingly challenging electoral landscape.

Here's how it was supposed to work.

Before the 2010 election, Republican strategists focused energy and resources on gaining control of state legislatures, and succeeded in flipping party control of legislative chambers in blue states including Pennsylvania, Michigan and Wisconsin. This allowed Republican legislatures to draw congressional districts, gerrymandering their states to ensure future Republican gains even in states where Democrats tend to win statewide.

GOP strategists then took it a step further. What if Republicans used their control over these blue states and their favorably gerrymandered electoral maps to make it harder for Democrats to win presidential elections?

Under the Constitution, each state determines how it will distribute its electoral votes to presidential candidates. All but two states (Maine and Nebraska) have a "winner take all" system, in which the winner of the state's popular vote earns all of its electoral votes. The Republican plan would keep the "winner take all" system in big, solidly red states like Texas. But it would change it in big, blue states like Pennsylvania and Michigan, ensuring that a Democratic candidate who wins the popular vote in the state doesn't go home with all of its electoral votes.

For instance, under the plan originally proposed in Pennsylvania after the 2012 election, which would have divided the state's electoral votes up by gerrymandered congressional districts, Mitt Romney would have won 13 of the state's 20 electoral votes, despite having lost the state's popular vote. Last year, the Republican-controlled state house in the presidential swing state of Virginia put forward a plan to do something similar. If the Virginia plan had been in effect in 2012, Mitt Romney would have carried away nine of the state's 13 electoral vote, despite having lost the state's popular vote to Barack Obama.

Republican National Committee chairman Reince Priebus made the goal of the scheme clear when he endorsed it last year, saying, "I think it's something that a lot of states that have been consistently blue that are fully controlled red ought to be looking at."

The proposals in Pennsylvania and Virginia sank after groups like People For the American Way got out the word and residents realized the proposals were part of a blatant political ploy. But this month, the scheme was resurrected in Michigan, where a Republican state lawmaker is proposing his own plan to dilute the power of his state's reliably Democratic electoral college block. Under the plan introduced by Rep. Pete Lund, Michigan's electoral votes would be distributed according to a formula tied to the popular vote. It's not as blatant as the original Pennsylvania and Virginia proposals were, but it has the same goal: If it had been in effect in the last presidential election, it would have cut President Obama's electoral total in Michigan down to 12 from 16.

These plans can initially seem reasonable, even to progressives, many of whom are wary of the electoral college system. But this isn't a good-government plan to change the way our presidential elections are conducted. It's a targeted plot to get more electoral votes for Republicans, even when they're losing the popular vote. It's no coincidence that these plans have often been quietly introduced in lame duck sessions, when voters are paying less attention. These measures, if allowed to be passed quickly in a few states with little debate and attention, could have national implications and change American political history.

Voters should be allowed to pick their politicians. But this is yet another case of politicians trying to pick their voters. Like with voter suppression schemes and extreme gerrymandering, the GOP is trying to change the rules of the game for their own benefit. Voters can't let them get away with it.

PFAW

WATCH: New Video Highlights GOP’s Remarks on Immigrants

From accusing them of carrying head lices, scabies and other diseases across the border to saying they should be tracked like  “FedEx packages,” Congressional Republicans held nothing back in attacking immigrants on the campaign trail this year. Their remarks were a continuation of a long history of outrageous, offensive and dehumanizing rhetoric from Republican lawmakers about immigrants.

So ahead of President Obama’s immigration reform announcement tonight, American Bridge and People For the American Way released a new video calling out Republicans for their extremist remarks against immigrants and immigration reform. While the President’s executive order will probably affect only some of the millions of undocumented immigrants living in the U.S., it seems likely we will hear more of the same from the Right Wing in the coming months.

PFAW

Cruz Vows to Damage Texas Courts in Response to Immigration Action

In response to President Obama's upcoming action on immigration, Texas Sen. Ted Cruz has vowed to retaliate by sabotaging the federal court system in his own state.

No, that's not how he phrased it, but that would be the impact of his vow. Yesterday in Politico, Cruz wrote how he thinks the Senate should respond to the president's policy decisions on immigration enforcement:

If the president announces executive amnesty, the new Senate majority leader who takes over in January should announce that the 114th Congress will not confirm a single nominee—executive or judicial—outside of vital national security positions, so long as the illegal amnesty persists.

While such a refusal to perform one of the basic functions of the Senate would harm the entire nation, the damage in Texas would be particularly severe. No state has more judicial vacancies than the Lone Star State. No state even comes close.

As of today, Texas is suffering from eleven current federal court vacancies, with another four known to be opening in the next few months. The White House has worked closely with Sens. Cruz and Cornyn to identify potential nominees, but progress has been slow: Only six of the vacancies even have nominees; three of these have not yet had their committee hearings.

But the other three – for the Eastern and Western Districts – advanced through the Judiciary Committee this morning and are now ready for a confirmation vote by the full Senate. All three would fill vacancies formally designated as judicial emergencies by the Administrative Office of U.S. Courts. Confirming them would be a good start at addressing the vacancy crisis in Texas.

And that's what is it: a crisis. As we wrote earlier this month in a Huffington Post piece entitled Lame Duck Opportunity and Obligation: Confirm Judges:

The situation is even more dire in Texas, where the Senate has a chance to fill three vacancies in the Eastern and Western Districts. The Western District judgeship has been vacant since 2008, and the Judicial Conference has asked for five new judgeships there to carry the load on top of filling all the existing vacancies. Chief Judge Fred Biery discussed the need for new judges last year, saying, "It would be nice to get some help. We are pedaling as fast as we can on an increasingly rickety bicycle." Judge David Ezra, formerly of Hawaii, explained why he was moving to Texas to hear cases in the Western District: "This is corollary to having a big wild fire in the Southwest Border states, and fire fighters from Hawaii going there to help put out the fire."

The Eastern District of Texas is in similar need of getting its vacancies filled during the lame duck: Of the nation's 94 federal districts, only two have had more weighted filings per judgeship than the Eastern District, according to the Administrative Office of U.S. Courts' most recent statistics. Small wonder, then, that the Judicial Conference has asked for two new judgeships there: Even if every judgeship were filled, that just isn't enough. To make matters worse, two more judges in the Eastern District have announced their intention to retire or take senior status next year, making it all the more important to fill the current vacancies now.

Even if the three nominees are confirmed during the lame duck, as they should be, more vacancies in both of those districts will open up early next year. Texas would still have eight vacancies, a number that would rise to twelve in the next few months.

To express his fury at President Obama and rally his right-wing base, Cruz would work to make sure that all these vacancies remain unfilled, which would hurt a lot of innocent Texans.

PFAW

Reid: We Cannot Leave Without Confirming Nominees

The lame duck session of Congress presents the Senate with an opportunity – and the obligation – to confirm nominees. Speaking on the Senate floor yesterday, Senate Majority Leader Harry Reid and Judiciary Committee Chairman Patrick Leahy both discussed the importance of confirming judicial and executive nominations during the lame duck.

Sen. Reid made clear that the Senate cannot leave town for the year without finishing its work of confirming nominees:

[Although] we have been able to get a lot of judges done, we are going to wind up--by the time the Judiciary Committee continues to do the good work they do, we will probably have over 20 judges who need to be approved this Congress. Postcloture, under the rules we have, there is only 1 hour of time that can be used, so we can get through the judges very quickly. For sub-Cabinet officers it takes 8 hours, and we are normally willing to yield back our time, so 4 hours on every one of those.

We have scores--we are approaching, counting judges and all of the nominations, well over 150 who have been held up, people who have been waiting and waiting. These are jobs that are needed in our country; these are not new positions we have created.

So I would hope we can get past the bitterness that has been created in this body and get the nominations done. There is no reason a judge-to-be should have to wait for all this time, as the Senator from Vermont has indicated, just to get a vote. Whatever he is doing now has been put on hold, and this is throughout the whole government.

So I would hope we can get a lot of these done. If not, we are going to have to spend a lot of time here because we cannot leave this Congress with all these things undone. I hope we can work together, as I have indicated. [emphasis supplied]

Sen. Leahy noted that this would be consistent with lame duck sessions in the past:

So let us work together as we have in past lame duck sessions to get these nominees confirmed and serving their communities. In 2002, after the midterm elections, Senate Democrats worked to confirm all 20 of President Bush's judicial nominees pending on the Executive Calendar all but one by voice vote. In the 2006 lame duck session, after Senate Democrats won the majority in the elections, Democrats agreed to confirm all 14 of President Bush's judicial nominations pending on the Executive Calendar, but this package was blocked by a Republican Senator. In the most recent lame duck sessions, in 2010 and 2012, a total of 32 judicial nominees were confirmed. We should do the same now.

There is simply no legitimate reason not to hold confirmation votes on so many nominees who have been fully vetted and approved in committee. We need a government that functions, and we cannot have that if vital judicial and executive positions are left unfilled. America can do better than that.

PFAW

PFAW Delivers 50,000 Petitions Against Electoral College Rigging in Michigan

If you don’t like the outcome, change the rules of the game? Not so fast, PFAW members in Michigan told their elected officials today.

This afternoon PFAW delivered approximately 50,000 petitions against electoral college rigging to a meeting of the Michigan House Committee on Elections and Ethics. The proposed bill (HB 5974) would change Michigan’s process for distributing electoral votes from a winner-take-all system — the standard process in states across the nation — to a system that would split the state’s electoral votes, effectively rewriting the rules to help the GOP presidential candidate. This is a continuation of an effort we saw after the 2012 election in some traditionally blue presidential election states where Republicans control the state government. Not surprisingly, Republicans in states like Texas (38 electoral votes) are not seeking a similar change.

One representative from Grand Rapids told the Associated Press that he believes the public will see this partisan ploy “for what it is… a brazen attempt to rig the political system.”

As many Republican legislators across the country continue to support proposals making it harder for people who traditionally vote Democrat to cast a ballot, this latest push to rig elections in the GOP’s favor may come as no surprise.

But PFAW Regional Political Coordinator Scott Foval, who joined 34 Michigan PFAW members today at a meeting of the state’s House Committee on Elections and Ethics, said that Michiganders won’t stand by while the Republican Party tries to manipulate the election process. “The people are watching, and will hold you as elected representatives accountable for enacting purely partisan and undemocratic legislation,” said Foval.

PFAW

Nina Pillard Writes Ruling Upholding ACA Contraception Coverage

A three-judge panel of the D.C. Circuit today upheld the contraception coverage requirement of the Affordable Care Act as it applies to religious nonprofits. The unanimous opinion in Priests For Life v. HHS was written by Obama nominee Nina Pillard.

Like in Hobby Lobby, the attack was based on the Religious Freedom Restoration Act (RFRA), under which any law imposing a substantial burden on religious exercise can be sustained only if it is the least restrictive means of achieving a compelling government purpose. But unlike Hobby Lobby, this case involves religious nonprofits rather than for-profit corporations. The law does not exclude the employees of religious nonprofits from its protection, but it does allow an accommodation so the employees can get the coverage without their employers having to contract, arrange, or pay for it. Instead, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. But some religious nonprofits assert that even the accommodation violates their religious liberty.

In contrast to Justice Alito and his far right colleagues in Hobby Lobby, Pillard devotes significant attention to why the ACA contraception coverage requirement is so vitally important. She writes:

The contraceptive coverage requirement derives from the ACA's prioritization of preventive care, and from Congress' recognition that such care has often been modeled on men's health needs and thus left women underinsured. As discussed below, Congress included the Women's Health Amendment in the ACA to remedy the problem that women were paying significantly more out of pocket for preventive care and thus often failed to seek preventive services, including consultations, prescriptions, and procedures relating to contraception. The medical evidence prompting the contraceptive coverage requirement showed that even minor obstacles to obtaining contraception led to more unplanned and risky pregnancies, with attendant adverse effects on women and their families.

She then explains how the regulations don't impose a substantial burden on the employers' religious exercise. They have no role whatsoever in the provision of contraception that they oppose. In addition, it isn't the employer's use of the accommodation that triggers the women's right to coverage; their right was triggered by Congress when it passed the ACA. Pillard gets to the nub of this effort to use religious liberty as a sword to diminish the rights of others:

Religious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out. They have no RFRA right to be free from the unease, or even anguish, of knowing that third parties are legally privileged or obligated to act in ways their religion abhors.

This will not be the last word on the matter. The same issue is being heard in other courts around the country, and the final disposition will almost certainly be by the Supreme Court.

PFAW Foundation

Small Businesses Support ‘Major Changes’ to Campaign Finance Laws

Small business owners are in favor of reforming our current campaign finance system, according to a new opinion poll from the Small Business Majority. In a nationwide survey last month, 77 percent of small business employers said that “big businesses have a significant impact on government decisions and the political process,” and nearly as many (72 percent) said they believe major changes are necessary to reform campaign finance laws. Only four percent of respondents said they believe no changes are necessary.

Yesterday Sam Becker from the Wall Street Cheat Sheet highlighted the conclusions of the survey:

[T]here is significant concern about the political and economic landscape, and the growing influence of corporate power on the parts of small business owners. With nearly three-quarters of small businesses saying they feel that they are at a disadvantage because of corporate influence in politics, it lends extra credence to the notion that our election process — which typically tends to cater heavily to the small business crowd — is in need of some serious reforms.

This is a good reminder that when enormously powerful corporate interests claim to speak for “the business community,” they are not necessarily speaking for the small businesses that play such an important role in our economy and in our communities. The results of this survey underscore the idea that campaign finance reform enjoys broad support among Americans of diverse professions and backgrounds. Religious organizations, labor unions, and business associations – in addition to many groups in the progressive nonprofit community –  are mobilizing around solutions to big money in politics. These solutions include transparency in political donations and public financing of elections, as well as a constitutional amendment to overturn Supreme Court decisions such as Citizens United v. FEC, which opened the floodgates to unlimited corporate spending in politics.

PFAW

Supreme Court Review of ACA Case Muzzles the DC Circuit

The full D.C. Circuit's expected rejection of a transparently political attack on Affordable Care Act subsidies won't happen, due to the Supreme Court's decision last week to hear King v. Burwell, a Fourth Circuit case raising the same issue. This afternoon, the D.C. Circuit cancelled oral arguments scheduled for next month and put the case on hold pending the Supreme Court's decision in King.

ACA opponents launched similar cases in four different circuits, apparently hoping for a circuit split that would encourage the Roberts Court to take the case and (they hope) destroy Obamacare. It turns out they didn't need to try nearly that hard: At least four Justices on the Roberts Court are so eager to take the case that they didn't wait for a circuit split, or even for more than one circuit court to have a chance to address the issue. All that was needed was one case.

Assuming judges in other two circuits follow the D.C. Circuit's lead and put their own cases on hold, then the Court's so quickly taking the King case will have shut down the possibility of additional circuit courts exposing just how legally weak and transparently political the attack on the ACA subsidies is.

PFAW Foundation

Lame Duck Session Confirmations: PFAW Member Telebriefing

As Congress returns for the lame duck session after the midterm elections, People For the American Way hosted a member telebriefing on Monday on the critical work that needs to be completed this session to fill court vacancies. The call was kicked off by PFAW Director of Communications Drew Courtney who underscored the significant number of judicial and executive nominations the Senate faces, including President Obama’s new Attorney General nominee, Loretta Lynch.

PFAW members were joined on the call by Josh Hsu, Senior Counsel on the Senate Judiciary Committee, who shared Committee Chairman Sen. Patrick Leahy’s commitment to moving forward on nominees through the lame duck session. He pointed out that much of the GOP obstruction of judicial nominees occurs under the public radar, but it has an enormous impact.  If the judicial nominees who can be confirmed by year’s end are stalled instead, that will create a substantial and needless backlog in the next Congress that will delay judicial nominees down the line. 

Hsu also gave his thoughts on how Republican control of the Senate may impact judicial nominations. Hsu pointed out that the three most recent two-term presidents all faced opposition Congresses in the final two years of their presidencies, but all continued to move forward on many nominations.

PFAW Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon emphasized the importance of local activists keeping up the momentum around judicial nominations, both during the lame duck and over the next two years. Gordon called on PFAW activists to continue contacting their senators and writing to their local papers. When senators hear from constituents on an issue or see articles written in their local newspaper, Gordon said, they pay attention. Grassroots activism is critical to making sure senators get the message on the importance of the courts, and of confirming nominees before the end of the year.

You can listen to the full audio of the telebriefing here:

PFAW

Welcome Back, Senate, It's Time to Get to Work

Today marks the beginning of the lame duck session of Congress, and the Senate has a lot to do this month and next to meet its basic constitutional obligations to ensure that the federal government is actually able to function. While that entails headline-grabbing matters like passing a spending resolution to keep the government open, it also entails confirming nominees to critically important executive and judicial positions. For instance, a confirmation vote on Surgeon General nominee Vivek Murthy, which has been delayed for months, is long overdue. The Senate also has time to fill vacancies at the National Labor Relations Board, the Department of Housing and Urban Development, the Equal Employment Opportunity Commission, and the Department of Education, among others.

And the Senate can and should vote on at least 24 district court judicial nominees. Sixteen district court nominees are already pending on the Senate floor, all of whom could have easily had a vote back in September, if not earlier. Another eight district court nominees are scheduled for committee approval tomorrow, although many people expect Republicans to demand a delay until next week.

But even with that committee delay, history shows there should be more than enough time in the next few weeks to confirm all of these district court nominees.

President George W. Bush's confirmed district nominees waited on average only a month after committee approval before getting a floor vote. In fact, half of Bush's district court judges waited only three weeks or less after committee approval, a figure that has plummeted to 2% for President Obama's district court judges. Treating Obama's nominees like Bush's would give the Senate plenty of time to do its job.

It's also worth noting that in the fall of 2008, at the twilight of the Bush presidency, the Democratic Senate still made a point of ensuring votes on his district court nominees. On September 26, 2008, the Senate confirmed by unanimous consent ten district court nominees who had been cleared by the Judiciary Committee only the day before. In fact, the Judiciary Committee had voted on them all within two weeks of their hearing, half of them within two days of their hearing. Republicans did not move to block or delay those nominees.

So don't let anyone tell you there isn't time for the Senate to confirm nominees during this lame duck session and still get its other work done. It is only the double standard that Senate Republicans apply to President Obama's nominees that will require Democrats to jump through so many procedural hoops in order to hold confirmation votes. But this year or next, the GOP's unceasing obstruction tactics should not be accepted as business as usual.

PFAW

PFAW Activists Protest Kentucky’s Marriage Equality Ban

People For the American Way joined local activists at a park in downtown Louisville on Friday to protest Kentucky's ban on marriage equality for same-sex couples. 

The "Love Will Win" rally came in response to last week's federal appeals court decision that upheld laws against same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. Currently the Commonwealth doesn't even have to recognize same-sex marriages performed legally in other states.

Protesters are hopeful this setback will pave the way for a Supreme Court reversal, bringing marriage equality to the South and the rest of the nation.

Chris Hartman, director of the Fairness Campaign, said that he’s disappointed by the decision but pleased by the prospects of getting a case in front of the U.S. Supreme Court.

"I think we all knew the sixth circuit was going to rule against LGBT freedom to marry,” Hartman said. “The sixth circuit is the most overturned circuit at the Supreme Court in the entire nation."

Thus far, 32 states and the District of Columbia have legalized same-sex marriage.

PFAW

Report: In Key Races, Margin of Victory Came Close to ‘Margin of Disenfranchisement’

In 2012, People For the American Way Foundation published a memo highlighting many of the legislative and administrative tactics states were using to undermine voter participation in elections, all under trumped-up claims of “voter fraud.”

Now according to a new Brennan Center report, recently-enacted restrictive voter laws may have helped tip the scales in the 2014 midterm elections this past Tuesday. A number of states around the country have implemented restrictions to voting, including new voter ID laws, cuts to early voting, and faulty voter purges. These changes have been found to have a negative impact on low-income voters, minority communities and young voters.

As quoted in a Mother Jones article yesterday, report author Wendy Weiser pointed out, "In several key races, the margin of victory came very close to the likely margin of disenfranchisement." One example from the article:

North Carolina Senate: Republican House state speaker Thom Tillis beat incumbent Democratic Sen. Kay Hagan by 48,000 votes.

In 2013, North Carolina enacted a law—which Tillis helped write—limiting early voting and same-day registration, which the Justice Department warned would likely depress minority turnout. During the last midterms in 2010, about 200,000 North Carolinians cast their ballots during early voting days that the state's new voting law eliminated.

To read more about the attack on voters and how you can help fight back, check out The Right To Vote section on our website.
 

PFAW Foundation

Ominous Sign from the Roberts Court on ACA Subsidies

The Supreme Court announced today that it will consider the appeal of a case that was designed by activists to take a wrecking ball to the Affordable Care Act. Since only one circuit has made a final ruling on the issue (a unanimous decision rejecting the ACA opponents' legally weak, transparently political argument), there is no split among circuit courts requiring resolution. In addition, the issue has yet to be decided by three additional circuits that have similar cases pending. So today's action begs the question: Why does the Roberts Court want to hear this case, and why now?

PFAW Foundation's Supreme Court 2014-2015 Term Preview discussed the possibility that the Court would address this issue. As we wrote then:

Opponents of the Affordable Care Act strategically launched lawsuits in four different circuits challenging federal subsidies for millions of Americans buying health insurance on federally-run exchanges. The circuits were apparently selected to maximize the possibility of a circuit split, which in turn would maximize the likelihood of getting the case heard by the Roberts Court, which (they hope) would deliver a crippling blow to Obamacare. Decisions have been reached in two of the circuits, although one has since been vacated.

Section 1311 of the ACA says states should set up insurance exchanges, while Section 1321 of the Act says the federal government can set one up if a state doesn't. Subsidies are available for less well-off people getting health insurance through an exchange, based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. The law's opponents hope to have the Supreme Court rule that Congress intended for subsidies to be unavailable to Americans purchasing insurance through the federally-established exchanges that the law calls for in cases where the state does not step in. In other words, the argument is that Congress intended to undercut the financial viability of the law and thwart its central purpose.

A unanimous panel of the Fourth Circuit rejected this wild claim in King v. Burwell. However, two far right judges on the D.C. Circuit formed a majority in a three-judge panel ruling actually agreeing with the Obama care opponents in Halbig v. Burwell. Dissenting Judge Harry Edwards recognized the lawsuit as a "not-so-veiled attempt to gut the Patient Protection and Affordable Care Act," noting that "[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble." The full D.C. Circuit subsequently vacated the ruling and will consider the issue en banc, and most observers expect a ruling more like the Fourth Circuit's.

But even if that happens, there are still lawsuits percolating in Indiana (Seventh Circuit) and Oklahoma (Tenth Circuit), so the hoped-for circuit split may yet occur. If it does, the Roberts Court is almost certain to consider the issue. While the case is transparently political and legally weak, that did not stop the conservative Justices when it came to the Commerce Clause challenge to the individual mandate.

The D.C. Circuit case remains pending: Oral arguments won't even be held until mid-December. The Tenth Circuit won't hear oral arguments until next year, and the Seventh Circuit case is still at the district court level. If the Court had waited for a possible circuit split to take the case, it would not have been heard until the term ending in July of 2016. But at least four Justices (the number it takes to grant a certiorari petition) are apparently unwilling to wait.

Their hunger to hear this case is ominous.

PFAW Foundation

The Sixth Circuit's Flawed Marriage Ruling

A divided three-judge panel of the Sixth Circuit Court of Appeals this afternoon upheld the marriage bans of Michigan, Ohio, Tennessee, and Kentucky. The majority opinion was written by Judge Jeffrey Sutton and joined by Deborah Cook, both put on the bench by George W. Bush. Clinton nominee Martha Craig Daughtrey dissented.

Among the many flaws in the majority's reasoning was the conclusion that Equal Protection violations are best resolved in the political sphere:

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

But this is a case where a discreet group, long a target of discrimination, found itself once again victimized by the majority acting through the democratic process. The Equal Protection Clause exists to protect vulnerable minorities from being victimized by hostile majorities using the "customary political process."

As the dissent states:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state's constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is "who should decide?"—and leads us through a largely irrelevant discourse on democracy and federalism.

Another flaw was Sutton's dismissal of the possibility that there was animus in the wave of 2004 and 2006 ballot initiatives in which voters put bans into their state constitutions. He wrote that if the constitutional bans had been unusual, that might trigger suspicion of animus. But he found nothing unusual here:

Neither was the decision to place the definition of marriage in a State's constitution unusual, nor did it otherwise convey the kind of malice or unthinking prejudice the Constitution prohibits. Nineteen States did the same thing during that period [between 2004 and 2006]. And if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. [emphasis added, internal citation removed]

If that had been the motivation, the constitutional amendments would not have banned gays and lesbians from marrying, but would have simply said that the legislature had the authority to limit marriage to opposite-sex couples. That would have removed the court's authority in the matter. In fact, that is exactly how Hawaii amended its constitution in the 1990s (which is how it recently was able to adopt marriage equality without re-amending its constitution).

But the Hawaii model of inequality was not nearly extreme enough for the advocates of the bans devised and aggressively pushed in 2004 and 2006. They went far, far beyond that. They tied the legislatures' hands and ensured that gays and lesbians would forever be prevented from achieving marriage equality through democratic means.

The ordinary voters who voted for the bans surely had numerous motivations. But it seems like magical thinking on Judge Sutton's part to assume that there was no animus motivating the architects and enthusiastic proponents of such an extreme and permanent exclusion of a targeted minority.

The ones fighting most forcefully for the bans a decade ago were the same organizations and people who had spent years opposing every advance in LGBT equality, whether those advances came from the courts, from legislatures, in classrooms, or in popular culture. That history is vital to understanding their motivations ten years ago, just as it is vital in addressing their current claims that LGBT equality violates their religious liberty.

PFAW Foundation

The Values Election We Didn't Have -- And Must Have

This blog post originally appeared in The Huffington Post.

Tuesday's elections have left us with a dismal political landscape in Washington, D.C. and exposed the deep dissatisfaction many Americans feel with the economy and the functioning of government.

The results also, let's be frank, pay sad tribute to the dishonest genius of Republican Party strategists, who coached candidates to hide clear records of extremism, and who spent six years laser-focused on making Congress dysfunctional while managing to convince voters it was the fault of President Obama and the Democrats.

By cloaking their extremism, and by evading responsibility for anti-government and anti-governing obstructionism, Republican leaders kept voters from having a clear sense of the real contest this year's elections represented. In 2008 and 2012, there was no denying that the elections were between two very different systems of values and ideas about the role of government in promoting and protecting the well-being of its people. This year's election was largely a failure to the extent that it was not about values and policies but the personal unpopularity of President Obama, any and all government failings, and the dysfunction in Washington.

In fact, there's a troubling paradox in the election results: some of the best news for progressives is also some of the most depressing, because it points to the depth and cost of our political failures.

Here's what I mean. Voters in red states and blue cities alike voted to raise the minimum wage, which polls show has majority support across the political spectrum. But those same voters elected Republican candidates who have opposed efforts to raise workers' wages. Colorado and North Dakota both rejected anti-choice "personhood" amendments, but voters elected officials in favor of "personhood" laws and hell-bent on closing down health clinics. Polls show support for equal rights for LGBT people way up, but many voters still supported candidates who are committed to resisting any gains toward legal equality.

Voters are rightly dissatisfied with an economy that leaves so many workers and families with stagnant or sinking wages and opportunities. Yet they voted for candidates most likely to make those problems worse. Americans who are hurting are not the ones who will benefit from further tax cuts for the rich, policies that give wealthy corporations and shadowy political groups more influence over elections than voters and ordinary people, and the gutting of regulations that protect consumers and communities from wrongdoing by unaccountable corporations. They're concerned about climate change yet their votes yesterday hand the gavel of the Senate committee responsible for dealing with it to a climate change denier.

The deck was clearly stacked against progressives this year. Democrats faced contested races in a number of conservative states. There was seemingly no end to the bad news overseas, some of which found its way home. And President Obama's popularity dwindled even as the economic picture brightened, because so many people were not feeling any of the benefits in their own pockets. 

But that's no excuse for the wave of defeats. Too many Democrats did not make a clear and convincing case about the consequences of policies pushed by far-right activists and promoted by Republican elected officials. And that allowed the debate to become a referendum on voters' feelings about Barack Obama -- and on an insider's squabble about where the buck stopped on the lack of effective action in Congress. 

We must not let Republicans continue to get away with the sleight-of-hand they used to distract voters from their extremism this year. Progressive leaders must make clear what values are at stake in the upcoming policy debates -- and whose policies are aligned with the American values and the interests of American families. We must push Democrats to draw clear distinctions between the values of the far-right lawmakers who will make this the most ideologically extreme Congress in memory and the voters who believe our nation's future depends on prosperity that is broadly shared, not funneled only to those at the very top. This also requires Democrats to have a clear agenda that excites the people who sat out this week's elections.

Moving forward, the most important mission for President Obama and Democratic congressional leaders is not to show how well they can work with Republican congressional leaders, but to show voters that they can and will take principled stands when core values are at stake, and to help Americans understand how the policy agenda of far-right Republicans undermines the kind of communities and country they want to live in.

PFAW