Richard Kim | The Nation

Richard Kim

Richard Kim

 Short takes on politics, culture and life.

Election 2012: Field Reports, Results and Analysis

Minimum Wage Advocates Score Victories—Matthew Cunningham-Cook, 11:41am

In Albuquerque, NM, Long Beach, CA, and San Jose, CA—all of the places Tuesday where an initiative to raise wages for working people was on the ballot—voters voted with strong (between three-fifths and two-thirds majorities) to raise the wage.

In Albuquerque, voters approved by 66 percent an initiative to raise the minimum wage in the city from $7.50 an hour to $8.50 an hour.

In San Jose, an idea that was started initially in a sociology class at San Jose State University led to students organizing and leading a campaign to raise the city’s minimum wage from the state minimum of $8 per hour to $10 per hour. Voters approved the measure by a 59 percent to 41 percent margin. And in Long Beach, a union-backed campaign to raise the minimum wage at hotels with more than 100 employees to $13 per hour and mandating five paid sick days per year passed easily. Unions mobilized for the measure, hoping that its passage would make it easier to organize the Long Beach hotel and tourism industry.

Nationwide, the minimum wage has languished at $7.25 for workers since 2009.

The victories will likely give momentum to efforts in other states to raise the minimum wage (strong pushes are likely next year in Illinois and New York), and on the federal level, where Tom Harkin has proposed raising the wage to $9.80 per hour by 2014. There are 4.5 million workers in the United States who work at or below the minimum wage. 

Awaiting the President (Re)-Elect in Chicago—George Zornick, 12:26 am

The crowd at Obama’s now-officially-a-victory-rally went absolutely nuts when MSNBC, the first network to make the call, announced that Obama had won re-election. The pandemonium lasted through CNN’s subsequent call, though alas everyone here was denied the pleasure of seeing Fox News call the race.

A defiant rendition of “How You Like Me Now” blasted from the speaker system, and I’m not sure people have stopped dancing. Cheers erupt as different results continue to flash by overhead—including, I should note, the passage of two marijuana legalization initiatives in Colorado and Washington state.

Now we await the president (re)-elect.

Supporters of President Barack Obama react to favorable media projections at the McCormick Place during an election night watch party in Chicago on Tuesday, November 6, 2012. (AP Photo/Jerome Delay)

Charter Measures Pass in Georgia, Lead in Washington—Elizabeth Whitman

Georgia has passed its first constitutional amendment, effectively reinstating the Georgia Charter Schools Commission and allowing it to authorize charter schools. The measure was extremely controversial, with critics saying that the commission would undermine local control of public schools. 

In Washington, the only other state to have a charter school measure on the ballot this year, an initiative allowing the creation of up to forty charter schools over the next five years appears to have narrowly passed by less than 2.5 percent. Three previous measures on charter schools had been put to the vote in Washington, each of them soundly rejected, in 1996, 2000 and 2004.

Major Decisions on Marijuana, DREAM Act and Capital Punishment—Steven Hsieh and Christie Thompson

Now that Obama has it in the bag, here’s an update of some of tonight’s key ballot initiatives:

Tonight was a strong showing for legalization advocates, with marijuana reform likely to pass in both Colorado and Washington. (With 47 percent reporting, 55 percent in Oregon have opposed legalization initiatives).

Medical marijuana passed by a landslide in Massachusetts, but was struck down in Arkansas and Montana.

Prop 34 in California, which proposes an abolition of the death penalty, is facing 52 percent opposition, with 17 percent reporting. (Some prison reform activists actually oppose the proposition. Find out why here.)

Maryland voters approved a referendum that will allow undocumented immigrants to pay in-state tuition at public colleges.

Florida rejected eight of a historic eleven ballot measures to amend the state’s constitution, including an effort to block Obama’s individual mandate.

Marriage Equality Measures Win at Ballot Box—Emily Douglas, 12:58 am

A little after 11 pm, media outlets have called Ohio, Iowa, Wisconsin and New Hampshire for Obama. If those results hold, a Romney victory is impossible, even though the GOP candidate took North Carolina. Close races remain in Florida, Virginia, Colorado and Nevada—but the results in those states will not impact the outcome of the electoral college race. Obama wins!

It's a big night for Obama, newly-elected (progressive, pro-choice, female) Senate Democrats, and for marriage equality! As of this writing, the pro-marriage equality side is in the lead in all four states voting on ballot initiatives this year. Maine and Maryland have both approved ballot initiatives to extend marriage rights to same-sex couples. And it looks like Minnesota will defeat their constitutional ban on same-sex marriage. We'll have to wait a little longer for the results in vote-by-mail-state Washington, where voters are also considering same-sex marriage.

And in other LGBT news, Tammy Baldwin becomes our first openly gay senator, beating Republican Tommy Thompson, who notoriously told Tea Partiers that he would "do away" with Medicare and Medicaid! Baldwin deeply concerned about the social safety net and jobs and fair trade. Read our interview with her here.

Joy and Relief at Elizabeth Warren HQ—E.J. Graff, 12:20 am

They were insane at the Warren party in a gilded ballroom at the Fairmont Copley. I’ve never spent election night with a campaign before, but I don’t think I’ll ever spend election night at home alone again. It’s a rock concert for politics nerds. A tall, lanky investment manager next to me, grinning, said that he wanted Donna Brazile to run for something; he could listen to her recite the phone book. With two huge screens up front cycling among the regional cable news and various TV news stations, the screams got louder every time the numbers flashed on screen. Every color that you can find in Massachusetts was here: ruddy faces descended from the Irish, gray no-product hair and purple fleece vests from the Peoples Republic of Cambridge, young white guys with square glasses and cool sideburns, Harvard law students with perfectly plucked eyebrows, black guys in dreads, a range of brown tones from south Asia to south of the border. Shoulder to shoulder, so jammed it was hard to make it through the room, they were beaming, grinning, screaming like rock fans, delirious with glee. A woman all in blue—blue dress, blue eye shadow, bright blue earrings, jangling with silver jewelry—grinned and bounced on her toes, screaming to me, “I can’t stand the excitement!” She looked like she might levitate like Mary Poppins, bouncing off the ceiling.

Democrat Elizabeth Warren waves to the crowd before giving her victory speech after defeating incumbent GOP Sen. Scott Brown in the Massachusetts Senate race, during an election night rally at the Fairmont Copley Plaza hotel in Boston, Tuesday, November 6, 2012. (AP Photo/Michael Dwyer)

They roared with happiness at all the small victories: the youngest Joe Kennedy taking Barney Frank’s seat. They adore the Kennedys, here in Massachusetts. “I know what his people believe,” one African-American church deacon told me. “I would vote for any Kennedy anywhere.”  They cheered as Republican Richard Tisei lost to the besmirched John Tierney, keeping the Massachusetts House delegation all Democrat. “He may be a felon, but he’s our felon,” one political operative grinned. They roared as Linda McMahon went down in flames in our neighboring state Connecticut, saving that state from humiliation. They roared every time Obama won another state: Vermont, New Hampshire, Michigan.

Then it came: CNN called it for Warren, up there on screen. I thought my eardrums would pop as they screamed, fists in the air. “Write down that a young Warren volunteer is elated by the news!” a young lawyer who’d staffed an “election protection” hotline screamed into my ear. “It was the professor versus the jock, and the professor won!” The Asian woman in purple fleece roared, “The people got their seat back!”  The sound system played Bruce Springsteen, of course, now mandatory for all Democratic functions: “No retreat, baby, and no surrender.”

It was an incredibly strange meta moment when, ahead of us on the huge screens, one of the fancy-haired TV ladies announced that she was here at the Warren ballroom and that that the room was screaming. On cue, the shoulder-to-shoulder motley room screamed, watching themselves pump their hands in the air. The sound system blasted out the Blackeyed Peas singing that Oprah birthday song, “It’s going to be a good good night!” A couple of young women in front of me did the choreographed dance that goes with that video, with almost no room to do their moves. They were chanting, “Warren! Warren! Warren!”

Dukakis and Kitty got up on stage to cheer the power of the grassroots organizing approach. He looked like a shepherd’s crook, tiny and frail, his face precisely as elfin and smiling as it was when we watched him lose the presidency at that rape question many years ago. The crowd roared. Our governor Deval Patrick got up, and the meta experience now was that a roomful of folks had their phones in the air, the new lighters, filming their governor turn the room into a call and response preaching session, telling us that this election said that “conviction matters (yes!), the grassroots matter (YES!), not just as strategy but as a philosophy: we believe you have to engage everyone, everybody has a palce in making our commonwealth and country strong. They went crazy: these were the people who knocked on doors, papered every doorstep, made phone calls and were part of an astoundingly well-organized and thorough grassroots effort that in the end called one-fifth of the state, thanks to John Walsh.

John Kerry got up, and got the most screams the man can ever have received. He was the precursor, the predecessor, the one coming to tell us that Elizabeth was nigh. The room still had to wait through Scott Brown’s brave-faced concession speech, in which he appeared to name-check everyone he had ever met. They were polite at first, but as he weny on and on they started chanting. “Wrap it up! Wrap it up!” When Brown said that Warren was the next Massachusetts senator, the screaming was so loud it was a slash.

Elizabeth Warren came out. “You go, girl!” someone yelled, and she laughed so hard she could barely stand. “This victory belongs to you!” she said, beaming like a sun. “Let me be clear: I didn’t build that—YOU built that!” The cheering was off the charts. For a minute, she sounded like she was going to cry. “I won’t just be your Senator. I will always be your champion!”

Forlorn Young Republicans at RNC Party—Ben Adler, 12:23 am

Washington, DC—With the early returns showing Democrats winning key Senate races in Missouri, Indiana and Massachusetts, and the momentum tilting towards President Obama, the atmosphere at the Republican National Committee party in Washington, DC, started off low-key and spiraled into downtrodden immediately after the election was called for President Obama.

When the polls closed in a number of states at 11 pm, and Fox News on the giant screen behind the stage showed North Carolina going for Mitt Romney, the crowd breathed an audible sigh of relief. “Thank God,” said one middle-aged blond woman. “It’s about time,” added a male friend of hers, ruefully. They broke into broad smiles, but only momentarily. As Obama racked up a series of Western states, the reality slowly dawned on them that Obama had reached 244 Electoral College votes and was only one big state short of victory.

Read the rest of the post on my blog.

Obama Wins!!!!

(AP Photo/Carolyn Kaster)

More on Sherrod Brown’s Win in Ohio—Amy Schiller, 11:15 pm

Senator Sherrod Brown’s victory tonight brought some major lessons, with the most important one just spoken by State Senator Nina Turner at the Cuyahoga County Democrats watch party in downtown Cleveland: “Money cannot buy you Ohio!”

While we celebrate the repudiation of outrageous outside-group spending that made Ohio’s Senate race one of the nastiest and most expensive in the country, here are five more lessons from Brown’s victory that speak to its significance beyond Brown’s second term as part of what appears to be a small Democratic Senate majority:

1) Ohio voters have a substantial bullshit detector. They’re not about to elect a senator constantly caught with his pants on fire.

2) Ohio will elect a progressive candidate to represent a moderate state, if they show that they’re on the side of the little guy. Brown’s longstanding relationships with working class voters, of all races, endured despite attempts to paint him as a tax-and-spend Washington insider.

3)  A Jewish Marine born and raised in Cleveland should have been a slam dunk for picking off voters in Cuyahoga County. Turns out Jews don’t just vote for their own when his positions are so extreme that they piss off even his own family.

4) This should be obvious, but don’t piss off police and firefighters. After the fight to repeal Senate Bill 5, which would have removed state workers’ right to collective bargaining, police unions were alienated from Governor John Kasich and Republicans by extension. The Friends of Police made its first endorsement of a Democrat since 1988 when they endorsed Sherrod Brown.

5) I really think deep down the Brown victory is all about that gravelly voice. Maybe we should ask the senator’s lovely wife, Connie, who has proved charmingly forthcoming about Sherrod’s most appealing qualities.

Anticipation Builds at Obama’s Rally in Chicago—George Zornick, 10:30 pm

People are starting to fill up McCormick Place on Chicago’s waterfront as the election’s end draws near. Supporters are huddled around large overhead screens carrying the major news networks, waiting for states to fall. (Many younger folks are instead looking downward, eyes glues on smartphones.)

At this point, Obama only needs any one of either Florida, Virginia, Ohio or North Carolina to win in effect, and attendees seem to know it. I expect this place to go nuts if, or when, that happens—and then get truly packed.

Huge Win for Progressives in Massachusetts—Christie Thompson, 10:15 pm

With nearly 50 percent in, progressive Elizabeth Warren has defeated incumbent Scott Brown for the high-profile Massachusetts Senate seat. After several fake early calls, NBC, CBS and CNN have called it in favor of Warren. 

Claire McCaskill Holds Off Todd ‘Legitimate Rape’ Akin in Missouri—Steven Hsieh, 10:10 pm

MSNBC is projecting that Senator Claire McCaskill held off Representative Todd Akin by sixteen points to keep her seat on Capitol Hill. McCaskill’s victory confirms that Todd Akin’s infamous positions on women’s health proved too extreme for Missouri voters. Akin was seen as a lock-in before August, when the congressman’s “legitimate rape” comments grabbed headlines and alienated him from his own party. It turns out a last-minute surge of contributions from donors desperate for a GOP majority wasn’t enough to save Akin’s campaign. This will be McCaskill’s second term in the US Senate.

In another strike against rape deniers, Richard Mourdock lost the Indiana senate seat to Democrat Joe Donnelly. With 77 percent in, Donnelly was up by 4 percent. 

Wisconsin and New Hampshire Called for Obama—Richard Kim, 10 pm

With most states closed, Obama has been projected to win in Wisconsin and New Hampshire. These results are not that surprising, but it means that Romney’s chances of winning are considerably diminished. As the New York Times interactive demonstrates, this now means that Obama has 118 ways to win, but Romney only has nine.

Maggie Hassan Beats Tea Party Extremist in New Hampshire—Betsy Reed, 9:40 pm

This year New Hampshire’s Maggie Hassan was the only prochoice Democratic woman running in a gubernatorial race. The only one! That alone made her New Hampshire race compelling. But the extremism of her opponent was truly breathtaking. Ovide Lamontagne, a Tea Partier who described himself as “Scott Walker on steroids,” distinguished himself with proposals to voucherize public education, allow the teaching of creationism in schools, ban gay marriage, criminalize abortion and outlaw many forms of birth control and fertility treatments. And if you think all that is standard Tea Party/religious right fare, consider this: he actually proposed to pull the state out of Medicare, turning the program into a state-administered block grant system. And he opposed accepting federal funds for Medicaid —a recipe, given states’ straitened circumstances, for fiscal disaster. So it’s pretty astounding that he was even taken seriously for a second. But thankfully voters showed some sanity and gave Maggie Hassan the victory she deserved. In the heat of her campaign—which, in true small town New Hampshire style featured no fewer than twelve debates—she stopped by the Nation offices and won over the editorial staff with her down-to-earth feminist rap, emphasizing her commitment to universal public kindergarten (which Lamontagne wanted to repeal) and to protecting women’s health and rights as critical to their personal freedom as well as their economic security. Okay, we weren’t the toughest crowd. But she was clearly the real deal. This is a win to celebrate tonight.

Dispatch From FreedomWorks HQ in Washington—Ben Adler, 9:37 pm

Washington, DC—The mood at the office of FreedomWorks—a cavern of white walls and working stations across the street from Union Station—is optimistic but nervous rather than ebullient. Preppy young white staffers and their friends mill around sipping expensive beers, switching between chatting about politics and refreshing web pages with the latest update from Florida. Cheers occasionally erupt, but it is misleading: a show for live TV broadcasts from the conference room, not reactions to actual results.

Read the rest on my blog.

Massachusetts for Warren?—E.J. Graff, 9:32 pm

It seems absurd that, with fewer than 10 percent of the vote reported, with only a handful of districts clearly in, with the polls closed only an hour ago, some media outlets have already called Massachusetts for Warren. And yet I do believe that that will be the result. Here in Warren headquarters in the gilded ballroom at the Fairmount Copley, things are precisely as they look when you watch on TV. People are jammed shoulder to shoulder—a full array of Massachusetts types: union guys in jeans and watchcaps, men in business suits, young women in pink suits and the requisite ex-hippie with a gray ponytail. Refugees are here from the Obama party down the block, saying that the Warren room here has much more excitement. All the Massachusetts pols are working the lines, either on stage or on TV row: Dukakis is the elder statesmen, most prized, looking frail and bent over and exactly as you remember from television, sweet and somehow unelectable. Folks are cheering themselves hoarse every time the huge TV projections show Obama ahead in any state.

These people have knocked on doors, called hundreds of people, donated money, and are cheering when they hear a state politician calling out that Warren will be the first female senator from Massachusetts. They’re leaning over the balconies, waiting for our next senator to appear, eager to hear her and call her the victor. I think there will be dancing to Springsteen tonight.

Landmark Legalization Initiatives in Oregon, Washington and Colorado—Christie Thompson, 9:28 pm

Today, three states are voting on ballot initiatives that would legalize marijuana for the first time in the US, allowing adults over 21 to purchase small amounts of pot that was regulated and taxed by the state. Though seventeen states have legalized medical marijuana (which could climb to 19 depending on votes in Arkansas and Massachusetts today), it would mark the first time any state had allowed the sale of cannabis for recreational purposes.

Legalization advocates are playing defense in Montana, where voters will decide whether to repeal a medical marijuana bill that passed in 2004.

Recent polls from Public Policy Polling show significant leads for legalization initiatives in both Colorado and Washington.  PPP polled 53 percent of Washington voters in support, and 52 percent of voters in Colorado. Oregon is looking less likely, with only 42 percent supporting and 49 percent opposed.

Support for legalization has hardly been split across party lines. In Washington, both governor candidates Jay Inslee (D) and Rob McKenna (R) oppose legalization, while Republican senate candidate Michael Baumgartner came out in support of the bill. Libertarian-leaning politicians and other Republicans in Colorado have endorsed regulating marijuana sales, including former congressman Tom Tancredo, while Democratic Governor John Hickenlooper and Denver Mayor Michael Hancock have instead trumpeted “tough on drug crime” policies.

The ballot blurring between blue and red is likely due to the economic incentive to support legalization. “Our nation is spending tens of billions of dollars annually in an attempt to prohibit adults from using a substance objectively less harmful than alcohol,” wrote Tancredo in a September op-ed. Harvard economist Jeffrey Miron estimated that legalization would save $7.7 billion in federal funds used for drug law enforcement.

President Obama, however, has disputed these claims, saying that legalizing marijuana will not grow the economy. With the federal prohibition of marijuana still in place, many wonder what impact state-level initiatives would have, or whether the next president would seek to overturn such laws.

Civil rights advocates are also keeping a close watch on the initiatives, in hopes that if passed, it would mean thousands fewer being locked up for non-violent drug offenses. The ACLU reports that drug offenders make up 500,000 of our nation’s 2 million inmates.

With polls still open in Washington and Oregon, and less than 10 percent reporting from Colorado, the state of marijuana legalization—and the fate of nonviolent drug offenders—is yet to be decided.

Senate Races Called in Florida and Connecticut—Christie Thompson, 8:47 pm

With nearly 60 percent reporting, Democrat Bill Nelson is projected to hold on to his seat as Florida senator, against a challenge from Republican Representative Connie Mack. Nelson is ahead by 56 percent.

In Connecticut, the fifth-most-expensive senate race in the country, analysts have called a victory for Democrat Chris Murphy against Republican Linda McMahon. Though only 5 percent are reporting, Murphy is already ahead by 60 percent. 

Ballot Initiatives Put Education and Labor on the Line—Matthew Cunningham-Cook, 8:20 pm

Ballot measures across the country will show how far the right-wing attacks on labor unions and public education have affected the national political consciousness.

In Alabama, a proposed constitutional amendment, Amendment 7, will eliminate the ability of companies to voluntarily enter in to “card check” agreements, wherein a company agrees to recognize a union if 50 percent + 1 (or a higher threshold) of employees sign union cards.

Amendment 4 is a cleverly disguised plan proposed by legislative Republicans to eliminate the segregation language from Alabama’s notoriously convoluted still-in-place Jim Crow constitution. The 1901 constitution guarantees separate schools for white and “colored” children, the amendment however could remove the constitutional guarantee to public education in general. The amendment is opposed by the Alabama Education Association and leading black political leaders.

In California, teachers and the labor movement as a whole are mobilizing for the passage of Prop 30, which will prevent devastating cutbacks for K12 education, and against Prop 32, which will severely limit the ability of unions to get involved in political campaigns. Prop 30, which will raise sales taxes from 7.25 percent to 7.5 percent and increases taxes on those making $250,000 per year and above, and as a result will raise at least $6 billion annually in revenue for the public sector. Molly Munger, the daughter of conservative billionaire Charles Munger, is sponsoring a competing initiative called Prop 38 that many worry will lead both measures to fail. Polls indicate Prop 30 in a dead heat, and Prop 32 likely leading to defeat.

In Washington, two measures are on the ballot that will affect public education as well as adequate funding for the public sector in general. The first, Initiative 1185, would reproduce terrible, since-eliminated rules in California that would require a two-thirds majority of the legislature to raise taxes. In California, the rules notoriously led to the state of California having to issue IOUs in 2009 and the downgrade of the state’s bond rating, massively increasing costs to taxpayers.

The second, Initiative 1240, would allow the introduction of up to forty charter schools in the state of Washington. Despite the fact that charter schools have been rejected twice by the state’s voters in the past eight years, education “reformers,” including noted Seattle resident Bill Gates, have decided to back it again.

Michigan has four ballot initiatives that the labor movement is organizing around. Proposal 1, supported by Republican Governor Rick Snyder, would approve his ability to appoint contract-busting and austerity-inducing “emergency managers” to autocratically take charge of counties, cities and school districts. Critics of the proposal have noted that the law disproportionately affects black communities. Recent polls have indicated the proposal will fail, in what will likely be a major victory for the black-led Michigan Welfare Rights Organization, which organized opposition to the bill and proposal.

Proposal 2, backed primarily by a coalition of unions led by the United Auto Workers, would enshrine collective bargaining rights in the state constitution, which would then protect union contracts and would likely prevent the passage of so-called “right-to-work” legislation in the state. Some grassroots activists have critiqued the proposal for enshrining the state’s ban on public sector strikes (a violation of conventions established by the International Labor Organization), but the labor movement is solidly behind it. Recent polls have shown the proposal in a dead heat. Proposal 4 would give homecare workers limited collective bargaining rates, and Proposal 5, would, like Washington, require a two-thirds majority of the legislature to raise taxes. Polls for the latter resolution show that it will be heading to defeat.

In Bridgeport, Connecticut, Michael Bloomberg has contributed $20,000 to help Mayor Bill Finch eliminate the directly elected school board and replace it with a panel appointed by his cronies. Voters will decide today if Bloomberg and Finch are right.

In Idaho, Republican state Superintendent Tom Luna is backing three proposals that would partially privatize the entirety of Idaho public education. Education historian Diane Ravitch has written extensively on the dangers the proposals pose to public education. As usual, Michael Bloomberg has contributed $200,000 to their passage. Proposal 1 would eliminate the ability of school boards to give tenure, Proposal 2 would institute merit pay, and Proposal 3 would require the completion of for-profit online coursework for Idaho students to graduate from high school.

In Arizona, pro-education groups are backing the renewal of a 1 percent sales tax for public education, while in Oregon, public-sector unions and teacher’s unions are opposing Measure 84, which would eliminate the state’s inheritance taxes and supporting Measure 85, which eliminates loopholes in the corporate tax structure to fund public education. In Illinois, unions, including the Chicago Teachers Union, are mobilizing against a measure (HJRCA 49) that would require a three-fifths majority of the legislature to increase pension benefits for public employees, and in Oklahoma, teachers are working against state questions 758 and 766, which by capping property tax increases and excluding “intangible” property from taxation would reduce funding for schools by $40 million per year. 

Pennsylvania’s Spanish-Speaking Voters Face Barriers at the Polls—James Cersonsky for Voting Rights Watch, 8 pm

Spanish-speaking voters at several polling places in North Philly have been left without interpreters, Ceiba’s Will Gonzalez tells Voting Rights Watch. “It would be akin to opening a polling place without electricity,” he says. In some cases, poll workers have asked Spanish-speaking voters to put their name on a list for follow-up, making many voters uneasy. Adds Gonzalez: “Any delay is denial on this thing.”

Read the rest from Voting Rights Watch.

Polls Closed in Nine States; Virginia Too Close to Call—7:30 pm

As of 7:30 pm (EST), polls have closed in 9 states—Georgia, Indiana, Kentucky, South Carolina, Vermont, Virginia, North Carolina, Ohio and West Virginia. As expected, Romney is projected to win Georgia, Indiana, Kentucky, South Carolina and West Virginia—giving him forty-nine electors. Obama is projected to win Vermont (big surprise!), giving him its three electors. Virginia, North Carolina and Ohio are too close to call.

Virginia Voters Benefiting From Strong Early Turnout—Ben Adler, 7:17 pm

Arlington, Virginia—Despite reports of long lines at Northern Virginia polling stations and even allegations of delaying tactics by GOP poll watchers intended to make the lines even worse, some polling places are experiencing no problems at all.

At the polling station two blocks from the Clarendon metro station in Arlington, there was no wait at all at 6:30 pm. That sounds like a bad sign for Democrats, who need a big turnout in Arlington.

But it may just be that people were so eager to vote they got it out of the way early. A Democratic party volunteer said that the Arlington Democratic Party found it had already exceeded 2008 turnout by 4 pm today. According to local election officials, 1,622 people voted in the Clarendon location as of 6:24 pm, which is over half the number of registered voters in that precinct and does not include those who already voted by absentee.

Democratic and nonpartisan volunteers at the Clarendon location said some other Arlington polling stations continue to suffer from massive lines and long waits. In Rosslyn, the densest area of Arlington closest to D.C., the line at a firehouse where voting is happening is especially bad.

If you are in line when the polls officially close at 7 pm, you are still allowed to vote. As of 7:10 pm there appeared to be about 100 people still waiting in line. Paul Lundberg, an Obama campaign volunteer said he arrived at 9 am and didn’t finish voting until noon. He estimated that the line at the firehouse would take about another hour to clear out, although Arlington Democratic volunteers guessed closer to twenty minutes. Locations such as this will not actually close and start counting votes until later than normal, so results in Virginia’s close presidential and senate races may come in late.

Charter School Proponents Optimistic About State Ballot Initiatives—Elizabeth Whitman, 6:40 pm

Every time of the three times voters in Washington state have had the option of allowing charter schools in their state, they’ve soundly rejected the idea. But this year, with recent polling showing support for Initiative 1240, which would allow for the creation of up to forty charter schools in Washington over five years, at 55 percent of voters, might be different.

When the final results of the voting are known will depend on how close the vote is. By 8 pm PST tonight, about 60 percent of Washington’s votes will have been tallied, because Washington state conducts all its voting by mail and ballots must be postmarked, not received, by November 6.

“If it’s a fairly clear split, probably you will see the media and maybe both sides declaring it tonight,” says David Ammon, communications director for Washington’s secretary of state. “If it’s tight, then everybody, including the media, will want to wait.”

The coalition Yes on 1240, which backs the initiative, is “confident and optimistic” that the initiative will pass, asays its spokesperson, Shannon Campion.

Melissa Westbrook, spokesperson for No on 1240, one of the coalitions against the initiative, is not convinced by the polls, citing “tremendous and broad-based support” for the campaign against Initiative 1240.

In Georgia, the issue of charters is even more contentious—a “hot button issue,” says Karen Hallacy, legislative chair for Georgia’s PTA. Georgia already has charter schools; what’s controversial in this election is who can authorize them. In 2011 Georgia’s Supreme Court ruled that the George Charter Schools Commission, which had been authorizing charter schools, was unconstitutional. Today, voters are deciding on a constitutional amendment that would override the Supreme Court’s decision. Georgia’s PTA opposes the amendment but supports charter schools.

“This is going to be a very, very close vote,” says Hallacy. Indeed, a mid-October poll from the Atlanta Journal-Constitution showed that 42 percent of Georgia’s voters opposed the amendment, 45 percent support it, and thirteen percent were either unfamiliar with it or had no answer.

Hallacy expects that results from this vote remain uncertain until quite late, possibly into the “early morning hours,” because the results would be so close.

Opponents of the initiative in Washington and the amendment in Georgia voice similar concerns about the measures proposed in their respective states. Both believe that the way the ballots are worded is misleading and that charters are an especially complex topic that voters do not fully understand.

“People don’t understand this issue at all,” Westbrook says her experiences on the campaign trail have shown. Before voters can comprehend what the initiative is about, they must first understand what a charter school is. The fact that the initiative “has not been properly worded” complicates matters further. In both Washington and Georgia, poorly worded ballots combined with voters who are not fully educated about charters risk the possibility that voters don’t know what they’re voting for, or against.

Hallacy believes that Georgia’s amendment is “misleading” as well, and a lawsuit has even been brought against the governor and others that declares the amendment’s wording “purposely misleading.” Georgia’s PTA, along with other groups, has requested “clearer language,” though to no avail.

“There’s still a lot of confusion out there,” Hallacy says. “I encountered voters today…who, when presented with the language, didn’t really know what it meant.”

More Floridians’ Votes Challenged by Tea Party; This Time in Miami—Brentin Mock, 6:32 pm

Voting Rights Watch just received word from the Miami-Dade County Elections Department that there are about forty-six people in their area whose voting rights have been challenged. The challenges follow the same pattern as those filed in Hillsborough County, where they have all been signed by the same person on the same date, this time by Pamela Evans Rhodenbaugh of Aventura, Florida, on October 25, 2012. Most of the challenges were for discrepancies in voters’ addresses that Rhodenbaugh found by matching names and birth dates from voter registration databases with the state’s Department of Corrections database. Eleven of them were challenges based on her allegation that the voters have felony convictions that disqualify them from voting.

As with the Tampa case, each of these challenged voters will be surprised at the polls when they find out they can not vote regular ballots, only provisional ballots. In 2008, over half of the provisional ballots cast were thrown out, and over a quarter were tossed in Florida’s 2010 elections.

Read the rest from Voting Rights Watch 2012.

New Champions for Clean Elections—Katrina vanden Heuvel, 5  pm

For those who care about getting big money out of our already polluted political-electoral system, there’s a reform-relevant aspect to watch in tonight’s results. Look for a strengthening of money and politics advocacy in the US Senate with New Mexico’s Martin Heinrich, Wisconsin’s Tammy Baldwin, Hawaii’s Mazie Hirono and Connecticut’s Chris Murphy, all terrific supporters of Fair Elections in the House, looking like they have a good chance to win Senate seats tonight. And they’re likely to be joined by Elizabeth Warren, also a deep believer in pushing back against the power of big money in elections, and Angus King, who has endorsed Maine’s Fair Elections-style system.

Voters Decide on Four Marriage Equality Measures Tonight—Emily Douglas, 4:55 pm

Same-sex marriage is on the ballot in four states today—in Maine, Maryland, and Washington, voters will vote on whether to grant marriage rights to same-sex couples, while Minnesota voters will decide whether to approve a constitutional amendment to ban gay marriage.  Polling has been tight, and conventional wisdom says Americans aren’t good at protecting marriage rights at the ballot box—remember the constitutional bans on gay marriage (which wasn’t anywhere near legal anyway) that passed in state after state, with huge margins, in the early 2000s?

Has that era passed (if I can be permitted an apples-to-oranges comparison between the blue state of Minnesota and the largely red or purple states that passed the amendments)? Distressingly, maybe not quite. Polling in Minnesota is still very close. A recent poll found that Minnesotans barely favor the amendment, 48 to 47 percent, but the state requires that a majority of voters supports the measure for it to pass. So, the measure could well fail, even if more Minnesotans approve of it than don’t—disappointing, but I’ll take it! (And, frankly, that’s a sensible check on the constitutional amendment process.) Oh, and if you haven’t come out to your aunt and uncle in Minnesota, consider doing so: only 40 percent of people who say they have gay or lesbian friends support the amendment.

Meanwhile, in Washington, Maine and and in my home state of Maryland, voters have the chance to vote up or down on marriage equality laws already passed by their state’s legislature. Pro-equality organizers in Washington have cautioned that because of the state’s vote-by-mail process, the result of the vote is not likely to be known until later in the week. Polling now suggests the measure will pass—54 percent support, 38 percent oppose, and 6 percent are undecided. That may seem like a comfortable lead, but E.J. Graff recently hammered home two time-honored principles of gay marriage-related voter referenda: (1) All undecided vote against us, and (2) Our side loses two to five points at the ballot. So, we’re on tenter hooks there too. But if initial results look bad, take heart; the earliest voters are likely to be the oldest and most conservative.

The Maine initiative is a second chance for the state’s voters, who already once voted down a marriage equality law approved by the state legislature in 2009. Polling there looks brighter—the latest poll prompted ThinkProgress to say the initiative is set to pass. In this case, because they’d lost once, pro-equality organizers waited and tested and organized and did outreach and then, when the timing seemed right, brought voters an opportunity to think again.

And finally, Maryland. Close polls there too. The most recent poll I could find had 52 percent support/43 percent oppose. President Obama threw his support behind Question 6, a move likely to appeal in the heavily Democratic state.

The stakes are high—not just for same-sex couples in these states but all around the country, too. The Supreme Court is poised to take one or more cases addressing the constitutionality of DOMA this term, and while the judiciary in various states have proved more open to gay rights concerns than the wider electorate, as we all know, SCOTUS doesn’t like to get too far ahead of public opinion (and in some cases lags far behind it). It’d make ruling all or part of DOMA unconstitutional a lot easier if voters in Maine, Maryland, or Washington agreed.

Stay tuned for updates on the results tonight!

Union Candidate vs. Education “Reformer” in the Race for Indiana School Superintendent—Matthew Cunningham-Cook, 4:48 pm

No two-candidate match-up better represents the stakes in the debate over education “reform” than the race for the Indiana Superintendent of Public Instruction.

Democrat Glenda Ritz, a teacher and the president of her union in Washington Township, is challenging one-term Republican Tony Bennett, a member of the Eli Broad-backed “Chiefs for Change” and a major proponent of charter schools, high-stakes testing, and school choice. Bennett is a former high school principal, and his department has stonewalled on releasing communication between his office and Jeb Bush and News Corporation’s Joel Klein.

Much like education races elsewhere, this race has attracted the interest of the Walton family and New York City Mayor Michael Bloomberg. Alice Walton contributed $200,000, and Bloomberg contributed $40,000. A major funder of his campaign is the Hoosiers for Economic Growth PAC, which in turn receives a great deal of it’s funding from pro-voucher organizations.

A recent poll (the only one done on the race so far) shows Bennett with a four-point lead with nearly a quarter of voters undecided. Unfortunately, the 13,000 voters purged in LaPorte County could be just the margin Ritz needs to pull of this race.

Senate Races to Watch—Christie Thompson, 4:35 pm

Virginia: The race between former Virginia governors Tim Kaine (D) and George Allen (R) is this year’s most expensive senate election, with almost $80 million spent between the two candidates. Recent polls by Reuters and Rasmussen put Kaine in the lead by two to three points.

Ohio: Despite the efforts of Ohio Treasurer Josh Mandel (R) to paint incumbent Sherrod Brown (D) as “un-American,” polls have consistently placed Brown in the lead. A recent poll by Reuters showed the Democratic senator nine points ahead. An influx of outside money to boost Mandel’s slim chances, like the $6.4 million from Karl Rove’s Crossroads GPS, makes this the third-most-expensive race for a Senate seat.

Wisconsin: Progressive Representative Tammy Baldwin (D), the first openly gay non-incumbent elected to Congress, was once considered a long shot for the Wisconsin Senate seat. But she’s pulled ahead of former governor Tommy Thompson (R) in recent months, with a November 3 poll by Public Policy Polling putting her three points ahead of her opponent. Thompson came under fire in September, when a video surfaced of him telling Tea Partiers that he would “do away” with Medicare and Medicaid.

Massachusetts: Progressive Elizabeth Warren is leading incumbent Senator Scott Brown by roughly three points, according to a recent aggregate by Talking Points Memo (although a poll by the Boston Herald puts Brown up by one). The high-profile race has been the most expensive in Massachusetts history, and the second most expensive US Senate race this year. While Brown has been trying to paint himself as a bipartisan moderate to likely Obama voters, Warren has appealed to middle-class voters with her strong background in consumer rights.

Montana: Democrat Senator Jon Tester is ahead of Representative Denny Rehberg by a narrow one-to-two-point margin, according to recent polls by Public Policy Polling and Rasmussen. Outside spenders have been pouring money into TV ads in hopes of tipping the election, amounting to roughly $60 dollars for each of Montana’s 675,000 registered voters.

North Dakota: According to Talking Points Memo, former state attorney general Heidi Heitkamp (D) and her opponent Rick Berg (R) are in a dead heat for the vacated Senate seat. Heitkamp has strong support from the state’s Native American population, making her election one of four key senate races where the tribal vote could be the deciding factor.

Connecticut: Polls by Public Policy Polling and Rasmussen have Democrat Chris Murphy comfortably ahead of Republican Linda McMahon by six to nine points. His solid lead in the consistently blue state have pushed McMahon’s team to desperate, last-minute efforts to paint her as a moderate for Obama voters: including mimicking campaign gear from the SEIU union, and distributing literature calling her an independent. Her and her husband’s donation of 150K to pro-Romney Super PAC’s says otherwise.

Nevada: Republican candidate Dean Heller is up by two points in the Nevada senate election, likely due to an ongoing ethics investigation of his opponent, Representative Shelley Berkeley. But in the state with the highest rates of unemployment and foreclosure, Heller’s belief that government social services “create hobos” could cripple his campaign. His staunch opposition to immigration reform efforts could also hurt among Latino voters, who make up 25 percent of Nevada’s population.

Arizona: Despite a surge of last-minute funding, Democratic candidate Richard Carmona is lagging 5 points behind his opponent Jeff Flake. Flake’s campaign is currently battling allegations that robocalls made by their office this weekend gave Democratic voters faulty polling information.

Florida: While Florida is the swing state to watch in the presidential race, incumbent Bill Nelson (D) has a comfortable six-point lead against Representative Connie Mack (R) in the state’s senate election. Despite the recent polls, “we are absolutely confident that Connie Mack will win by 1.4 percent and will be Florida’s next US senator,” said Mack’s campaign manager on their website.

Reports of Republican Voter Suppression Efforts in Virginia—Ben Adler, 4:30 pm

Washington, DC—Virginia Democrats are worried that long lines at polling places in key Virginia counties may discourage voters and cause them to go home without voting. Since this morning, there have been reports of long lines and waits of up to two hours in large Democratic-leaning counties immediately outside D.C., such as Arlington, and key swing counties to Arlington’s south such as Prince William. Virginia election officials say there are long lines throughout the state due to high turnout. 

In response, the state Democratic Party sent a letter at 3:30 pm to the Virginia state board of elections requesting that voters be allowed to vote by paper ballot. Those ballots could then be handed out to people on line, rather than requiring everyone to wait to go individually into a polling booth, thus speeding up the process. Democrats worry that voters will give up on voting after waiting for over an hour. And voters who do so—anyone who has to go to work, for example—are more likely to be Democrats. (Retirees vote mostly Republican, whereas low-wage hourly workers vote mostly Democratic.)

In addition to the pure logistical problem, there is the possibility that lines are being deliberately exacerbated by Republican poll watchers.

Terry McAuliffe, former chair of the Democratic National Committee and gubernatorial candidate in the 2009 Democratic gubernatorial primary, says that he is hearing from sources on the ground that the lines are being slowed down by Republican poll watchers who are demanding excessive proof, such as extra forms of identification, for many voters. This can damage turnout in two ways, says McAuliffe: lengthening the wait to vote and by making some voters fear their IDs will not pass muster. “It’s a deliberate attempt to slow the process,” says McAuliffe. “A lot of first time voters don’t want to be intimidated.”

McAuliffe promises that Democrats will be aggressive about combatting voter disenfranchisement today. “I’m still sore over [the election of] 2000, but shame on us for letting it happen,” he says McAuliffe also adds that local election officials should take more measures to prevent long lines in the first place. “Why not put more voting machines out? Why should people have to wait two hours to vote in America, the greatest democracy in the world?”

In Virginia many election procedures are unduly burdensome, according to McAuliffe. For example, a voter must sign an affidavit swearing that he or she will be out of the state on Election Day in order to get an absentee ballot. (Voting rights advocates favor allowing voters to vote by absentee ballot without giving a reason, and more vote by mail options in general.)

The Virginia state Democratic Party, however, is putting a positive spin on the long lines, saying they are a sign of strong turnout, particularly in important Democratic regions. “It’s a sign that people are excited,” says Brian Coy, a spokesman for the party.

The Potential Social/Mainstream Media Gap Tonight

—George Zornick, 3:40 pm

Reading Richard’s excellent note about what to expect, I’m struck by how we might see a very wide reporting gap online and on television tonight. The network news outlets and major wire services will, quite appropriately, not declare the election outcome until all the polls are closed so as not to unduly influence voters in Western time zones. (Early, erroneous network television calls may have played a truly damaging role in the 2000 election, as this 2006 piece for The Nation amply demonstrates.) The AP, for example, has a very detailed set of conditions under which it will call election results. 

But social media is governed by no such rules. So, look at Richard’s timeline. Virginia and Ohio close at 7 and 7:30 respectively, so it’s entirely possible—if the states aren’t too close to call—that we could know by 8 pm who won them. If President Obama carries those two states, he has of course won the election. There is no remotely feasible path for Romney without Virginia. 

In 2008, television news could see the wave building for Obama but couldn’t call it, despite the cascading number of states ending up in the blue column. And, as I recall, the reporters and anchors were forced to very carefully describe the situation without just saying “Look, Obama won” or even suggesting too heavily that it was a foregone conclusion. They will likely do the same tonight—but on Twitter, you can expect absolute declarations in this scenario that Obama has prevailed.

Social media is a much larger source for people’s news than it was in 2008—27.8 percent of people get their news from social media, versus 28.8 percent from newspapers and 59.5 percent from television. So get ready for there to be a wide reporting gap tonight if the early states fall that way. And this is particularly true for breaking news events, as this infographic shows.

Social media may be quick tonight, but don’t always believe what you see. Already, we’ve seen a bogus report from the Cincinnati Enquirer touting an early Romney lead in Ohio that didn’t exist shoot around the Twittersphere this morning—though, as is often the case on Twitter, retractions spread just as quickly.

Real exit polls sure to start flying around Twitter within the next couple hours, when the results become meaningful because enough time has passed since polls opened. But even those should be taken with a huge grain of salt. Obama campaign officials I’ve spoken with here in Chicago caution that the exit polls may look terrible for the president because Romney is likely to win Election Day voters in many swing states, due to the Democrats’ aggressive efforts to bank early voting leads. But that doesn’t mean Romney will ultimately win the state.

Sheriff Deputies, Poll Worker Harass Latinos in Swing State Colorado—Aura Bogado, 3:38 pm

The quiet, rural town of Pueblo West, just a two hour drive from Denver, is a mixed neighborhood that’s part of the greater city of Pueblo, which makes up more than 40 percent of the state’s entire Latino population. And canvassers there are eager to encourage all voters to get out to the polls. One canvasser, who declined to have his name for publication, was doing just that last week when he ran in to trouble. He and his canvassing partner, who are both Latino, noticed local Sheriffs were sometimes tailing them, but they continued their work.

They drove to a local convenience store for snacks, but when they got back into their car, they realized they couldn’t back away from the parking spot because it was blocked by two Pueblo County Sheriff’s vehicles. They were both asked to show identification, and deputies ran these for outstanding warrants. The canvassers explained they were simply urging people to get out and vote, but the deputies replied that local residents called in to complain about two suspicious Latinos in the neighborhood. The deputies then told them they should quit immediately, and “call it a day.”

Read the rest of the post at Voting Rights Watch.

Three Major Election Day Voting Problems—Ari Berman, 3 pm

The Election Protection Coalition call center

I attended a briefing in Washington this morning with voting rights advocates hosted by the Election Protection Coalition, which runs the 1-866-Our-Vote hotline. They are being inundated with calls from voters. In 2008, the hotline received 100,000 calls. As of 11 this morning, they’ve already received 35,000 calls.

Here are the three biggest problems the Election Protection Coalition were hearing of this morning. This list is by no means comprehensive, just a snapshot of potential election meltdowns. I’ve linked to the 866-Our-Vote page for each state below.

Problem #1: Problems with voting in states hit by Hurricane Sandy, particularly in New Jersey and New York. In New Jersey, for example, servers set up to handle ballots sent via e-mail have crashed due to volume. People affected by the storm don’t know where to go to vote. Polling places are not open, or not staffed, or the voting machines aren’t working. The highest concentration of calls to the 1-866-Our-Vote hotline is coming from New Jersey.

Problem #2: Poll workers in Pennsylvania wrongly telling voters they need photo ID to cast a ballot. According to the law, poll workers in Pennsylvania can ask voters for ID, but they are not required to show it in order to vote. However, that is not how the law is being enforced. Eric Marshall, co-director of Election Protection, says such problems are occurring across the state, although reports are that minority voters are being targeted in Philadelphia, Pittsburgh and Harrisburg. “Poll workers are asking black voters for ID but not white voters,” Marshall reported.

Problem #3: Voting machines are not working in the Ohio cities of Cleveland, Dayton and Toledo. The optical scan electronic voting machines are broken. These are heavily Democratic cities where Obama needs a big turnout to win. UPDATE: I’m told by the Election Protection coalition that this problem has been resolved.

Update: PA Voting Machine Back Online—Annie Shields, 2:40 pm

Mother Jones reports that the faulty electronic voting machine in Philadelphia that switched a vote for Obama to a vote for Romney has been “recalibrated” and is back online. There have been no reports of further complaints.

What to Expect and When—Richard Kim, 2:30 pm

On the other hand, the election could effectively be called just hours after the first set of East Coast swing states report. A short night will mean an Obama victory, as he will have scored clear wins in key states like Florida, Ohio or Virginia. In fact, an Obama win in any one of those three states makes a Romney victory near impossible. A long night—or long week or month!—will mean Romney picked up Florida and scored a string of victories in the other swing states, which would be a surprise, least of all to FiveThirtyEight psephologist Nate Silver, who currently has forecasted a 90.9 percent chance of Obama winning.

Polls close on the following schedule:

pm (EST): Most of Indiana, minus a few Western counties. The state, which went for Obama in 2008 (the one pick Silver got wrong), is widely expected to go for Romney this time. Indiana is also where Republican Richard Mourdock (of God’s will-rape-pregnancy infamy) faces off against Democrat Joe Donnelly (whose stance on abortion is as severe as Mitt Romney’s) for a Senate seat.

pm: Virginia, with thirteen electoral votes at stake. In 2008, Obama was the first Democrat to win the state since 1964. The latest polling average has Obama up by a slim 1.3 points. Also, former DNC head honcho Tim Kaine has an edge in his race against former Republican Senator George “Macaca” Allen.

pm: Most of New Hampshire. Some polls close an hour later, but two—from the tiny towns of Hart’s Location and Dixville Notch—open and closed at midnight, when every resident had cast their ballot in what has become a local tradition. They’ve already reported, and the aggregate has Obama at twenty-eight votes, Romney at fourteen and Gary Johnson at two. So, as of 12:01 am, Obama was leading in a landslide for New Hampshire’s four electors. Expect that margin to change, if not necessarily the result.

7:30 pm: Ohio, Obama’s so-called firewall with eighteen electoral votes. About 1.6 million people have already cast an early ballot there. Early voters tend to lean Democrat, so don’t get too excited if the first batch of returns, which will reflect the early ballots, tip heavily to Obama. Some of the early voting numbers, however, don’t look so great for the Obama campaign. The Romney team picked up turnout in counties that went for McCain in 2008 (up about 2 percent), while the turnout in counties Obama won in 2008 was down slightly (by about 3 percent).

Also, here’s where Senator Sherrod Brown squares off against challenger Josh Mandel.

7:30 pm: North Carolina, which went for Obama in 2008 and where the DNC held its convention. It’s telling, however, that President Obama has not been back to the state since then.

pm: Florida (Most polls close at 7 pm; some panhandle counties are open an hour longer. Reporting begins when all polls close). Florida is a must win state for Romney, with twenty-nine electors. The New York Times warns, however, that “the ballot in many counties is unusually long, running more than ten pages in some areas of the state…which means voting could take longer.”

At pm polls also close in Pennsylvania, where Obama is expected to win. Then at pm, we’ll see some numbers back from Colorado and Wisconsin. Iowa and Nevada check in at 10 pm (all EST).

To put these reporting times in context, my pick for the outstanding interactive of election 2012 goes to The New York Times’s 512 Paths to the White House. Play around with it to see just how daunting the electoral college map is for Romney.

In the NYT 9-swing-state scenario, Obama has 431 ways to win, Romney a mere seventy-six. Let’s put Wisconsin and Nevada in Obama’s corner, since he has led in every recent poll in those states. Then Obama has 119 ways to win, Romney just nine. Or in another scenario, if Obama is declared the winner in Florida, Romney would have to win every single other state to emerge victorious. Put New Hampshire in the Obama column—game over, early night.

Anyway, for horse race diehards, it’s a fun interactive. So go ahead and play around, but come back here!

Misinformation Encourages Philadelphians to Cancel Their Own Votes—Ari Melber, 2:20 pm

Misinformation encouraging people in Philadelphia to cancel their own votes has been circulating on Tuesday, and Obama field operatives have begun trying to correct the rumor on the ground. The rumor, which has spread in urban and predominantly African-American areas of Philadelphia that tilt towards Barack Obama, wrongly instructed voters to first select an “All Democratic” voting slate—and then cast another vote specifically for Obama. That second vote has the effect of canceling the original vote, according to two Democratic sources in Philadelphia.

“Many voters are being told to vote for the President by both checking the Straight Democrat Box and the Box for the President,” explains an email from an Obama Voter Protection staffer targeting Philadelphia voters. That action cancels the vote, says the staffer, who instructed voters “to do one or the other, but not both.”

The Obama campaign has voter protection staff and attorneys on the ground trying to clarify the situation, and began sending emails as early as 9:16 am today.  Concerns about the rumor began bubbling up early this morning, including one 7:46 am tweet warning against the confusing double-vote option.


PA Voting Machine Turns Vote for Obama to Romney—Annie Shields, 2 pm 

NBC News confirms that an electronic voting machine in Pennsylvania has been taken out of service after a voter captured video of it changing a vote for Barack Obama into one for Mitt Romney.

The Nation’s Election 2012 Liveblog—Richard Kim, 12:30 pm 

In just a few hours, the first batch of swing states—Virginia, New Hampshire, Florida and Ohio—will begin to report their election results. We’ll keep updating this post as the votes are counted, so check back frequently for results and analysis.

We’ll also have short dispatches from our correspondents in the field throughout the day and night: Ari Berman at Election Protection headquarters in Washington; George Zornick at Obama headquarters in Chicago; Ben Adler with the RNC in DC; EJ Graff reporting from Elizabeth Warren’s headquarters in Boston; Ilyse Hogue in Pennsylvania and the team from Voting Rights Watch 2012, Brentin Mock and Aura Bogado, in Virginia and Colorado respectively. There’ll also be analysis and comments from our writers and editors in New York: Emily Douglas, Leslie Savan, Annie Shields, Bryce Covert, Katrina vanden Heuvel and more.

And join The Nations online election chat with Katrina vanden Heuvel and other Nation editors and writers starting at 5 pm.

In the meantime, some helpful information:

If you don’t know your polling station, go to gottavote.com and punch in your address.

To find out if you’ll need ID to vote (and what kind), go to Color of Change’s excellent online app and check the laws for your particular state.

If you are having problems at your polling station, call the Election Protection hotline at 1-866-OUR-VOTE. As of 11am, they’ve already received 35,000 calls. You can read some of them at Our Vote Live. And follow them on Twitter: @866OURVOTE.

On the Lena Dunham ‘First Time’ Ad Controversy

In her very young career, Lena Dunham has distinguished herself as her generation’s pre-eminent observer of female social and sexual mores. From her first film, Tiny Furniture, to her oft-acclaimed and sometimes-reviled HBO series, Girls, Dunham creates works of video pointillism. Her narratives and characters don’t make a whole lot of sense in the medium view (really, there are no black people in Brooklyn?), but from afar they’re unmistakably recognizable. From up close, inside a particular scene or bit of dialogue, she can be achingly brilliant and pure.

It should come as no surprise then that her impish video imploring young women to vote for Barack Obama—because on the first time “you wanna to do it with a great guy”—works in the same mode and has elicited similarly polarizing reactions. In just twenty-four hours, her ad has garnered hundreds of thousands of views on Youtube and an almost equal numbers of likes and dislikes.

As Amanda Marcotte points out at Slate, the video has provoked an “unhinged, crazy reaction” from conservatives, who seemingly can’t tolerate “an accomplished single woman who doesn’t blush at the mention of sex.” Marcotte is right to put the controversy over the video in the context of the GOP’s freakout over women and sex (see Richard Mourdock, Todd Akin, Foster Friess, etc.), and the Dunham ad is undeniably timed by the Obama campaign to reach undecided, young female voters.

But this medium-view reading misses something else behind the furor. It’s not about the sex per se; it’s about the emotion behind it. Dunham’s ad is funny, or infuriating, not just because it absurdly suggests a taboo sex act—that in 2008 a 22-year old Lena Dunham lost her virginity to a married Senator Barack Obama—but because it likens that scenario to the presumably rational act of voting. There is something a little too raw and too compelling about Dunham’s performance—the way she expresses keening tenderness and unshakable adoration toward the president of the United States, as if he might have been a first love. Dunham cursorily mentions four issues—birth control, Iraq, pay equity and gay marriage—but the plea is almost entirely in the register of feelings, not policy. As in many of her scenes, she reveals herself as emotionally—if not physically (this time)—naked. 

Obama’s capacity to elicit an extra-rational, hyper-emotional response from his supporters has long infuriated his critics—on both right and left (NB: I am not arguing that voting for Obama because he’s pro-women is irrational—it is deeply rational). The slur—“you’re just an Obamabot”—is equally likely to be tweeted by fans of Glenn Beck or Glenn Greenwald. Recall that the accusation that Obama had cultivated a “cult of personality” emerged most loudly at first not from the Tea Party and Andrew Breitbart—who have certainly ridden that horse to death since—but from liberal New York Times columnist Paul Krugman, who lamented in February of 2008 during the Democratic primary that the Obama campaign seemed “dangerously close to becoming a cult of personality” because “most of the venom I see is coming from supporters of Mr. Obama, who want their hero or nobody.” It’s a great irony that, of all Democrats on the planet, it’s Hillary Clinton (of Text from Hillary Tumblr fame) who now enjoys the worship of what might be called a cult of personality.

There have been other so-called presidential cults of personality before (think Reagan). They don't always make sense on inspection (think Reagan Democrats), but in the large and small, they speak certain truths. As we approach the final week of the election, the hardiness of Obama’s emotionally excessive relationship to his base is perhaps the single X factor most unmeasurable by the polls. Of all age groups, it’s young voters—who were instrumental to Obama’s 2008 victory and to whom Dunham targeted her plea—who have swung most wildly in their support for Obama or Mitt Romney or in their level of engagement in the election at all. It’s their turnout that might most determine the outcome of this race, as well as Obama’s ability to realign the electorate towards the Democratic Party for a generation. In that sense, the success or failure of Lena Dunham’s ad might be pivotal—not because of its singular effect but because of all it symbolizes. 

Jim Lehrer Gets Pwned

I’ll leave it to the horserace pundits to decide who won tonight’s debate and to the voters to decide who will win the election. I know who lost: Jim Lehrer, PBS, old media and the myth of the “sensible center.” Tonight’s moderator, Jim Lehrer, got utterly, totally, savagely pwned. The Lehrer/PBS school of moderation is fundamentally unequipped to deal with the era of post-truth, asymmetric polarization politics—and it should be retired. Time and time again, Romney deviated from the positions he took to win the GOP primary, and neither Lehrer nor Obama was able to effectively press him on it. Obama at least tried, at times.

The gulf between political reality and mainstream media mores has never seemed so wide and unbridgeable. Frankly, I came away with one new opinion, and that was to agree with Mitt Romney that PBS should go. (Big Bird, I’ll rethink this in the AM.)

But beyond the numbing boredom and bewilderment that tonight’s debate format and moderation caused, there are real costs. Not necessarily to the candidates—the media has called the debate for Romney, but I don’t think it will move the needle enough for Romney to win—but to democracy. 

True, tonight’s format hurt Obama most, but that was aggravated by his own curious choices: to not call out Romney more forcefully on his dissembling about jobs, the deficit, healthcare and education. Where was the vigorous assault on Romney’s disdain for the 47 percent? Or Bain capitalism? Or the go-for-broke indictment of GOP obstructionism and Paul Ryan’s blueprint? Aside from the opening litigation on Romney’s tax plan—where was the lawyer in the White House? Where were the moments when Obama—or Lehrer—challenged Romney on his dissent from other Romneys?

And where were the questions about reproductive rights, gay rights, pay equity, immigration, climate change, poverty or schools? We didn’t get to them—because Jim Lehrer got pwned! Or was just plain disinterested.

The format seemed to encourage Obama to maintain his likeability, while moving rather aggressively to agree with Romney whenever he could, instead of going on the offensive. This is exactly the political sensibility—the faith that the mainstream, nonpartisan arbiters of truth (vs. truthiness) would intervene to adjudicate the debate justly—that has so crippled the Obama administration’s first term.

Here’s an example of my main point: Obama actually did attempt in instances to distinguish himself from Romney—for example, on the claim by Romney, now familiar, that Obamacare cuts $716 billion from Medicare. This has been widely debunked. But Obama’s response was to pivot to Paul Ryan’s plan to voucherize Medicare. That’s not a bad debate move—Americans love Medicare, even if they don’t always know it is a government program—but it left largely uncontested the validity of Romney’s claim. Here’s where Lehrer might have step in with some facts, or a hard question. But no—that did not so much happen, even though Twitter, Facebook and any number of media sites instantly rebutted Romney’s claim. But instead, how nonsensical is this following exchange:

LEHRER: Talk about that in a minute.
OBAMA: …but—but—but overall.
OBAMA: And so…
ROMNEY: That’s—that’s a big topic. Can we—can we stay on Medicare?
OBAMA: Is that a—is that a separate topic?
LEHRER: Yeah, we’re going to—yeah, I want to get to it.
OBAMA: I’m sorry.
LEHRER: But all I want to do is go very quickly…
ROMNEY: Let’s get back to Medicare.
LEHRER: … before we leave the economy…
ROMNEY: Let’s get back to Medicare.
ROMNEY: The president said that the government can provide the service at lower cost and without a profit.
LEHRER: All right.
ROMNEY: If that’s the case, then it will always be the best product that people can purchase.
LEHRER: Wait a minute, Governor.
ROMNEY: But my experience—my experience the private sector typically is able to provide a better product at a lower cost.
LEHRER: All right. Can we—can the two of you agree that the voters have a choice—a clear choice between the two…
ROMNEY: Absolutely.
LEHRER: … of you on Medicare?
ROMNEY: Absolutely.
OBAMA: Absolutely.

Oh. My. God.

'We Can’t Afford It': The Big Lie About Medicaid Expansion

In his letter to Health and Human Services Secretary Kathleen Sebelius rejecting the expansion of Medicaid under the Affordable Care Act, Texas Governor Rick Perry tells a whopper. Expanding Medicaid, he writes, would “threaten even Texas with financial ruin.”

Texas has the highest rate of uninsured residents in the country (25 percent), and it stands to enroll some 1.8 million new Medicaid recipients through the expansion. These are some of the poorest people in America, making less than 133 percent of the federal poverty level (just $31,000 a year for a family of four). In the first six years of the expansion, from 2014 to 2019, the total cost of insuring these Texans would be about $55 billion—not an inconsiderable sum. But the federal government would pay more than 95 percent of that amount; Texas’s share would be just $2.6 billion. That’s not chump change—but threaten Texas with financial ruin? Not by a long shot. 

What does threaten Texas with financial ruin is the fact that it has some of the most regressive, insane tax policies in the nation. According to Matt Gardner, executive director of the Institute on Taxation and Economic Policy (ITEP), Texas is one of nine states without any broad-based state income tax. Back in 2008, the Center for Public Policy Priorities calculated that Texas could raise $7 billion a year through a modest personal income tax comparable to what its neighbor Kansas had at the time (6.45 percent for individuals making more than $30,000 a year). If Texas collected that amount annually through a personal income tax during the first six years of the expansion, it would raise $42 billion. That would pay for its share of the Medicaid expansion more than sixteen times over. (I suspect the state’s teachers, social workers, firefighters, police and other public employees would have some ideas on how to spend the surplus.)

That’s not all. In 2006, the Texas state legislature required school districts to cut their property tax rate and then failed to make up fully the difference with new taxes. The result was a $10 billion structural deficit in every biennial budget. If Texas just returned to the property tax rate it had before 2006, it would raise at least $30 billion in the six years of the expansion. Or in another words, it could pay for the Medicaid expansion more than eleven times over. (If Texas both passed an average state income tax and repealed its property tax cut, it could pay its share of the Medicaid expansion almost twenty-seven times over!)

Rick Perry is not alone. Ever since the Supreme Court allowed states to opt out of the law’s expansion of Medicaid without forfeiting all their Medicaid funding, at least five other Republican governors—led by Tea Party darlings like South Carolina’s Nikki Haley, Florida’s Rick Scott and Louisiana’s Bobby Jindal—have summarily refused to implement the expansion on the grounds that their states just can’t afford it. They’re as wrong as Rick Perry. The federal government covers 100 percent of the expansion in 2014 through 2016. In 2017, states begin sharing the cost, paying 5 percent; that share grows to 10 percent in 2020. States are never on the hook for more than 10 percent of the annual cost. To put that in perspective, states currently pay between 25 to 50 percent of current Medicaid’s costs.


In many cases, Republican governors have wildly exaggerated what Medicaid expansion would actually cost their state. For example, South Carolina’s Nikki Haley wrote in an op-ed that the “price tag to South Carolina tax payers” would be “an extra $1.1 to $2.3 billion” over the next six years. In fact, the Kaiser Commission on Medicaid Expansion and the Uninsured calculated that South Carolina would have to kick in between $470 million and $615 million, depending on how many people chose to enroll. Again, in the first six years of the expansion, the federal government would pay for more than 95 percent of the total costs, between $11.4 and $12.7 billion depending on the participation rate.

South Carolina is also one of eight states that offers a substantial capital gains tax break, a policy that overwhelmingly benefits the wealthiest 20 percent. Since 1991, the state has allowed residents to deduct 44 percent of their long-term capital gains income from their taxes. According to the Institute on Taxation and Economic Policy, in 2010, this tax break cost South Carolina about $115 million in revenue. If they were to raise only that amount annually during the first six years of the expansion by getting rid of the capital gains tax break, they’d raise $690 million—which would more than pay for the Medicaid expansion.


Let’s take a look at another regressive state tax policy. In Iowa, Republican governor Terry Branstad has claimed that the Medicaid expansion is “unaffordable, unsustainable.” But Iowa is one of three states that allow taxpayers to deduct 100 percent of their federal income tax payments from their state taxes. As the ITEP points out in its report, this unusual tax break undermines the progressivity of federal tax policy and overwhelmingly benefits the top 20 percent, who enjoy between 76 and 83 percent of the cuts. In 2011, Iowa lost about $642 million in potential revenue to this tax break—that’s almost 25 percent of its total tax revenue! Governor Branstad himself made out quite well under this tax break. In 2011, he paid just $52 in state income taxes because he was able to deduct his 2010 federal taxes from his 2011 state income tax bill.

What would expanding Medicaid to insure 115,000 residents cost Iowa between 2014 and 2019? Just $147 million. If folks like Governor Branstad paid their fair share of state income taxes, Iowa would raise almost $3.9 billion in those years. Or in other words, it could pay for the expansion more than twenty-six times over.


In Louisiana, Governor Bobby Jindal has said the state can’t “afford another entitlement program.” But his state also allows residents to deduct 100 percent of their federal income tax payments from their state taxes. If it didn’t, it would raise $642 million a year—or $3.9 billion over six years. By getting rid of this tax break for the rich, Louisiana could newly insure 366,000 people by 2019, at a cost of just $337 million to the state, more than eleven times over.










Florida is home to 3.8 million uninsured residents, about 21 percent of its population, the third highest rate in the country. Expanding Medicaid would bring coverage to at least 942,000 of those folks at a cost of $1.2 billion between 2014 and 2019.

It’s also home to one of the country’s most infuriating tax loopholes—the infamous “Rent-a-Cow” tax loophole—which allows developers to claim agricultural tax breaks by letting ranchers keep some cattle on industrial or commercial land. In 2006, the Associated Press estimated that this loophole costs the state $950 million a year. Granted, some of that goes to legitimate farms, but as the Miami Herald noted in a 2005 report, most of the top beneficiaries were not growing oranges (or any other kind of fruit). 

By eliminating this agricultural tax break, Florida could raise at least $5.7 billion between 2014 and 2019, paying for its share of the Medicaid expansion almost 5 times over. 





Nearby, the office of Governor Phil Bryant claims, “Mississippi cannot afford a Medicaid expansion.” But Mississippi and Pennsylvania are the only states that have state income taxes to refuse to tax retirement income at all. In 2011, the state’s annual tax expenditure report concluded that it would miss out in more than $341 million in potential revenue in 2012 as a result. By taxing retirement income, it stands to generate at least $2 billion in the first six years of the Medicaid expansion. That would pay its share ($429 million) more than four times over. 

From the very first salvo in the debate over healthcare reform, Republicans have cloaked their opposition to expanding coverage by resorting to fear-mongering and lies. Remember Sarah Palin’s “death panels”? That was rated PolitiFact’s 2009 “Lie of the Year.” Or how about the idea that the ACA amounts to a “government takeover” of healthcare? That  garnered the PolitiFact honor one year later.

An equally powerful lie has been the notion that the ACA is just too expensive. Rush Limbaugh wildly asserts that the ACA is the “largest tax increase in the history of the world” (not true by a long shot, points out MoJo’s Kevin Drum). And Mitt Romney claims that “Obamacare adds trillions to our deficits.” In fact, when the CBO scored the bill in 2010, it concluded that the law would reduce the deficit by $124 billion over ten years.

Hysterically exaggerating the cost of healthcare reform is one tactic, but presenting those costs in isolation is another—and perhaps more insidious—tactic. As these charts illustrate, austerity itself is a lie. We are not broke. We can pay for healthcare reform—and for teachers, police, firefighters, welfare, food stamps and any number of social services—if we go to where the money is.

What the false debate over the cost of Medicaid expansion obscures then is the real choice the GOP refusniks are making—to insure millions of Americans or to preserve tax cuts for the wealthy and cheer while those around us just die.

Additional research and reporting by Gizelle Lugo.

Supreme Court Upholds Mandate, Mixed Ruling on Medicaid Expansion

Additional reporting by Max Rivlin-Nadler and Gizelle Lugo.

UPDATE: The entire ACA has been upheld by the Supreme Court, with Chief Justice Roberts joining the majority. According to SCOTUSblog, “the entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.” The Court decided 5-4, with Kennedy dissenting and Roberts essentially saving the ACA, going against party lines.

The Nation’s David Cole parses the decision:

The law has long been that Congress can enact a tax for any purpose to further the general welfare. Unlike its regulatory powers, Congress can point to a specific power that they have for the ACA—the power to tax. Because the only consequence is that a person who doesn’t get insurance will be taxed, there’s no restriction on what Congress can do. The court upholds the mandate as an exercise of the taxing power.

Two things are remarkable about this decision. Everybody thought that Kennedy would be the decisive vote. If he went with the conservatives, then it would be struck down. If he went with the moderates, it would be upheld. The shock is that Chief Justice Roberts was the one who broke with the conservatives. The other remarkable thing about the ruling is that the conservative justices would have invalidated the entire law based on one provision, the individual mandate. It would have put us way back, well beyond square one.

You can’t let the perfect be the enemy of the good. This is a law that will expand healthcare insurance to millions of Americans who didn’t have it before. It’s not the best law, obviously. The question was, does Congress have the power to deal with a large social issue and regulate the industry and make citizens buy into a system that will help everyone? Thanks to Roberts, they can do this. If the ACA doesn’t end up helping people, then there can now be better reform in the future. People who think that it would be good if it was struck down and would make us closer to single-payer, is just ridiculous.

Kevin Russell over at SCOTUSBlog has a good analysis of the Court’s ruling on Medicaid expansion. The Court was deeply fractured on this question, with Ginsburg and Sotomayor seeking to uphold the expansion entirely; Roberts, Kagan and Breyer arguing that the federal government can’t strike all of a state’s funding under the Constitution; and the dissenters—Scalia, Kennedy, Thomas and Alito—backing the chief justice. This would have struck down the entire expansion, so Sotomayor and Ginsburg voted with the plurality. The impact of the ruling decision, as Russell puts it, is as follows:

The Court’s decision on the constitutionality of the Medicaid expansion is divided and complicated. The bottom line is that: (1) Congress acted constitutionally in offering states funds to expand coverage to millions of new individuals; (2) So states can agree to expand coverage in exchange for those new funds; (3) If the state accepts the expansion funds, it must obey by the new rules and expand coverage; (4) but a state can refuse to participate in the expansion without losing all of its Medicaid funds; instead the state will have the option of continue the its current, unexpanded plan as is.

* * *

With the Supreme Court set to issue—at long last!—its decision in the challenge to the Affordable Care Act, the entire political world is on pins and needles. At around 10 am tomorrow, a million twitchy fingers will be hitting refresh-refresh-refresh on Scotusblog (they’ve even set up a back-up site in case of a crash, scotusblog.wpengine.com). Pundits and legal scholars are reading the tea leaves of this week’s other decisions and the oral arguments made in March. Traders are placing bets. And political scientists are pushing their models into overdrive.

We’ll do our best here to link to interesting predictions, commentary and analysis of the decision when it comes down—so check back frequently as we’ll keep updating this post. (Also, tell us what you think will happen and how the decision will affect you in the comments thread. We’ll repost some of those in this blog.) TheNation.com will also host Democracy Now!’s livestream of the decision, which starts at 10 am, featuring our legal affairs correspondent David Cole. Health insurance industry whistleblower Wendell Potter will also weigh in with his analysis of the decision and what it means for meaningful reform. And of course, they’ll be smart, progressive takes on the ruling, what it means, what it doesn’t and what to do next from bloggers like George Zornick, John Nichols, Ilyse Hogue, Ari Berman and Ben Adler.

But before we recap some of what some prognosticators are prognosticating, it’s a good time to remember what’s at stake. Almost 50 million Americans lack health insurance. Millions of people with pre-existing conditions are priced out of the market, and thousands die each year because they can’t get the care they need. In 2011, $2.7 trillion was spent on healthcare in the United States, more than any other nation as a percentage of GDP. These costs that are rising each year at an unsustainable rate and could reach 20 percent of the US economy by 2021.

The Affordable Care Act doesn’t fix all of this—but it does lower costs through industry reforms, creates state exchanges, extends Medicaid coverage to millions and requires insurance companies to cover those with pre-existing conditions and people under 26 on their parent’s plan (as former Nation intern Zoë Carpenter points out, that’s already given over 6 million young Americans access to health insurance). All told, about 30 million people would get coverage through the ACA’s provisions, about half of them through the state exchanges that are set to launch in 2014. The individual mandate, of course, is the cornerstone of those exchanges. Most likely, that’s what’s at stake tomorrow, but the Court could strike down the whole bill. Or uphold the whole bill. Or variations in the middle. As Jonathan Chait reports at New York, there are five different likely scenarios:

1. Leave it all in place.

2. Technically eliminate the mandate to buy healthcare while leaving in place the fine for not having health insurance. (Essentially upholding the fine as a tax while technically eliminating the requirement.)

3. Eliminate the mandate, and the fine, but leave in place the regulations that insurance companies not discriminate against people with health risks and the subsidies for buying insurance.

4. Eliminate the mandate, the fine, insurance regulations, and the subsidies.

5. Nuke the entire law.

Jonathan Cohn over at TNR also has a great primer on the Obamacare decision with similar scenarios. He’s also eloquently laid out what’s at stake for as many as 100 million Americans. Both Cohn and Chait think that the ACA could still function if the mandate is struck down, depending on what other elements of the bill remain, especially if the penalties and subsidies remain in place. That scenario would be a “moral victory” for conservative critics, says Cohn, but not much damage to the law itself. And last week George Zornick reported that, since a vast majority of Americans want some kind of healthcare reform, there are still options on the table, even with a bad decision. Like passing single-payer, to start, but also state-level mandates, penalties and more generous subsidies.

Also at stake in the decision is the legitimacy of the Supreme Court itself (see Barry Friedman in The Nation on the subject). As this week’s lead editorial, “A Supreme Court for the 1 Percent,” points out, with its decision in Citizens United and its refusal to reconsider that decision last week, the right-wing majority on the Court has “already guaranteed that insurance companies and other corporations will continue to have dramatically more say in American politics than citizens.” More than 75 percent of all Americans think that the Court’s justices make decisions based on their political views rather than legal analysis. And if the broccoli thesis—straight from right-wing talking points—essentially wins the day tomorrow, well, 75 percent of Americans would be right.

Now, onto some folks bold enough to predict what will happen tomorrow:

The Daily Beast’s Michael Tomasky predicts that the mandate will be overturned 5-4. In taking the most cynical view, Tomasky believes the judges will make a political decision and try to inflict as much damage on Barack Obama and the Democratic Party as possible. The other parts of the law will remain intact, trying to limit backlash against the Court and the possibility of riling up the Democratic base. He writes:

They’ll want to minimize backlash, in other words—both backlash against them as an institution and electoral backlash that might help Obama and the D’s. So they’ll limit their overturning to the mandate. And as I say, the majority opinion will say things like gee, we are deeply sympathetic to the problems inherent in the health-care system, but regretfully, we simply can’t endorse this method under our reading of the Constitution.

That way, Obama is screwed (yes—the D’s and even maybe the media will try to paint that as a partial win for the White House, but it won’t be in my view). And yet the majority also seems reasonable. That’s the needle I predict they’re going to thread. What about the law, you say? Fiddle dee dee. This is politics, pure and simple.

The only hope that Tomasky holds out is that it’s possible the justices will take the same view they took with the SB 1070 decision a few days ago (when they said they had no idea how “show your papers” was going to be enforced, so they could not rule on it), and will opt to wait and see how the individual mandate is implemented. He doubts it, though. [MR-N]

Ed Whelan at National Review also has the Court striking down the individual mandate by a 5-4 vote. But his reasoning is, for lack of a better term—weird.

He writes that it’s a SCOTUS tradition for a justice to read only a single dissenting opinion from the bench each term. As Scalia read the dissent for the SB 1070 ruling earlier this week, and didn’t save his turn for the healthcare ruling, it means that he will most likely be in the majority tomorrow. The problem is, the whole piece is now prefaced by an update that points out that Scalia already read a dissenting opinion back in March. So now he’s read two—invalidating Whelan’s argument. Or maybe just showing how unrealistic it is that he would go on to read a third. Either way, a lot of tea leaves here, not much actual analysis. [MR-N]

Walter Dellinger at Slate doesn’t believe the Court will let a major reform be struck down on such a divided bench. If they do invalidate the individual mandate (possibly unraveling the rest of the law in the process), they would then “own the resulting healthcare system for the next decade and beyond.” He continues, “It’s a slightly highbrow version of the universal rule: ‘You broke it, you bought it.’”

The middle ground he finds is that the Court might give a “theoretical victory” to conservatives, but essentially leave the law, including the mandate, in place through a rhetorical compromise. He writes:

Here is where the Court could give a theoretical victory to the challengers: By saying that if you did read the law that way—as its text seems to suggest—as making lawbreakers out of those who don’t acquire health insurance, it would be unconstitutional. But we don’t read it that way, the Court could say. We read it as nothing more than an incentive to purchase coverage. No one is compelled to make a purchase from a private party because they can choose, instead, to pay a relatively modest penalty that never exceeds 2.5 percent. This makes the decision about whether or not to have insurance a genuine choice, not a compulsion.

That’s some nifty reasoning, but are Justices Kennedy or Roberts up for it? [MR-N]

Here’s Senator Ben Nelson’s take on the outcome of SCOTUS’s decision as reported by Brian Beutler for Talking Points Memo. Nelson warns that if SCOTUS strikes down the Affordable Healthcare Act, the decision will lead the nation down a path towards a single-payer system. Nelson, who recently announced his retirement and is considered to be “the most conservative Democratic senator,” is an “unlikely champion” of the law, according to Beutler. An initial skeptic of the Dems’ approach towards healthcare, Nelson was one of the last holdouts on the vote for the ACA. But while the senator seems to have changed his tune and is not a fan of either single-payer or returning to the status quo, Beutler anticipates Nelson warming up to the former outcome should that eventuality occur. [GL]

The Guardian surveys a panel of law experts for their predictions—and the majority of them think the law will be upheld.

Timothy Jost, a law professor at Washington and Lee University thinks, “when they [SCOTUS] consider seriously the expansive deference they have accorded Congress in their prior decisions, they will uphold the law in full.” In other words, if they limit Congress on this legislation, how badly would they contradict their previous rulings?

Martha Davis, constitutional law professor at Northeastern University, sees 6-3 for upholding, with an 8-1 court also approving of the Medicare expansion.

Michael Sparer, professor health policy and management at Columbia University, also predicts a 6-3 vote. “Why? Because it is the right decision on the law (says the still-naive optimist). And because once Kennedy decides to vote to uphold the law, Roberts will join—both to make the decision seem less political, and also to ensure that he can write the majority opinion.”

Thomas M. Keck, a professor constitutional law and politics at Syracuse University, also goes with 6-3. “In doing so, the decisive justices will suggest that a straightforward government mandate that all individuals purchase health insurance would be unconstitutional, but that the ACA’s mere imposition of a tax penalty on individuals who fail to obtain health insurance is constitutionally legitimate.”

A lone voice on the panel thinks the law will be struck down—possibly in its entirety. Scott Lemieux, professor of political science at the College of Saint Rose, “I’d say the Court will vote 5-4 to strike the mandate, and they will rule that it cannot be severed from at least some of the other provisions in the act.”

The optimism of the law professors points out the almost certain constitutionality of the legislation. But will the decision be made based on the rule of law or politics? [MR-N]

Last minute updates [10 am]:

Think Progress has a simple rundown of all the things Americans would miss out on if the law is struck down.

If you’re just joining the coverage, and still don’t know exactly what the ACA is all about, The Kaiser Family Foundation has put together a video explaining exactly what it does, and who it helps.


Also, Michele Bachmann will be in the building, looking like she just scored front-row tickets to a John Mellencamp show. 


What’s Still the Matter With David Blankenhorn

Onetime gay marriage foe David Blankenhorn has decided to take this year’s gay pride weekend as an opportunity to issue a weird, tetchy recantation of his views in the New York Times, along with an hour-long documentary on NPR chronicling his conversion (disclosure: the documentary was produced by my friend and sometime Nation writer Mark Oppenheimer). I suppose Blankenhorn’s very public surrender is reason to celebrate. It’s yet another sign that it is increasingly untenable for anyone bidding for mainstream credibility to remain opposed to same-sex marriage—and he admits as much in his op-ed. Among the motives he cites for his shift are the desire to maintain “comity” and a “respect for an emerging consensus,” which he backhandedly allows “may be wrong on the merits,” but to which he concedes anyway. So much for being gracious in defeat.

But in a way, I get Blankenhorn’s surliness. It’s a mirror to my own agitation on the subject. Blankenhorn sees two frames for understanding the issue of same-sex marriage. One is about the equality of gays and lesbians under the law and the concomitant “dignity” that gay and lesbian relationships are accorded in society at large. The other is about the institution of marriage itself—its purpose, legal definition and social status. It’s because the battle over same-sex marriage has come to be largely defined by the equality/dignity framework that Blankenhorn, a self-described liberal and Obama voter, claims he has changed his mind. “To my deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus,” he writes.

Well, duh. Blankenhorn has been at the forefront, if somewhat reluctantly at times, of the movement against same-sex marriage since 2004. While he has avoided the explicit denigration of gays and lesbians that characterizes the talking points of his former allies, he has certainly shared the stage with them—and even the witness stand; Blankenhorn testified on behalf of gay marriage opponents in the Proposition 8 trial (Perry v. Schwarzenegger) in 2009. Whatever else he might be, Blankenhorn is no idiot—which makes it inconceivable that he just realized he’s been partying with a bunch of homophobes for the better part of the last decade. So what’s changed?

Everything—and also not much. Blankenhorn is right that the debate over same-sex marriage could have become a referendum on the status of marriage itself. The emphasis is on could have become. The kernel of Blankenhorn’s onetime opposition to same-sex marriage that has most infuriated and befuddled critics has been his assertion that legalizing same-sex marriage would damage heterosexual marriages (notably, a claim he does not fully recant in his most recent remarks). When Blankenhorn took the stand in Perry v. Schwarzenegger, he argued that legalizing same-sex marriage would lead to less straight marriages, more straight divorces and more children born out of wedlock. While he presented no data to support this hypothesis, he did make a case that same-sex marriage is part and parcel of what he called the “deinstitutionalization” of marriage. I don’t agree, of course, with his magical thinking that gay marriage necessarily undermines the appeal of straight marriages, but he’s right, in part. Or at least he could have been right.

Back in 2005, in the wake of a rash of state constitutional bans on same-sex marriage, Lisa Duggan and I argued that the gay movement—and progressives at large—should focus on advocating for a range of household recognitions, for “decentering” marriage as an institution even while fighting for legal equality. Here’s what we wrote:

For gay activists, and indeed for all progressive activists, it would be far more productive to stress support for household diversity—both cultural and economic support, recognition and resources for a changing population as it actually lives—than to focus solely on gay marriage. By treating marriage as one form of household recognition among others, progressives can generate a broad vision of social justice that resonates on many fronts. If we connect this democratization of household recognition with advocacy of material support for caretaking, as well as for good jobs and adequate benefits (like universal healthcare), then what we all have in common will come into sharper relief.

Of course, Lisa and I lost that argument, at least when it came to setting the strategies of gay and progressive organizations. The fight for same-sex marriage has scored some significant victories in the intervening years, including Obama’s recent “evolution,” but those wins have come within the framework of same-sex marriage as an isolated right granted to a minority group—the equality/dignity line that Blankenhorn acknowledges has become the dominant framing of the issue. In some cases, the passage of gay marriage has actually eliminated alternative forms of household recognition, such as domestic partnerships and reciprocal beneficiary statuses. And despite our perhaps outlandish wishes, no progressive movement has risen up to champion the recognition of the diverse forms of households proliferating today, despite the fact that Americans increasingly continue to live outside of marriage (see Eric Klinenberg’s excellent new book, Going Solo, for example, in which he documents the rise of living alone as the predominant residential pattern). Indeed, in the years since we wrote that article, I’ve often felt as if the debate over same-sex marriage has raged on the national stage while queer radicals like myself and marriage advocates like David Blankenhorn were off to the side, hosting our own tangential debate. The queer radicals lost the war over issue framing—and, in a way, so did Blankenhorn.

The primary difference, of course, is that Blankenhorn and I fundamentally disagree about what marriage should mean—for gays and straights alike. As the founder of the Institute for American Values, Blankenhorn has attacked single mothers, championed federal marriage promotion as welfare policy, railed against cohabitation and no-fault divorce, and opposed access to new reproductive technologies. One of his institute’s latest crusades has been against anonymous sperm donors (because they lead to “fatherless” children, an abiding preoccupation of his). Suffice it to say, I don’t agree with any of this. I think divorce can be a great thing—as anyone leaving an abusive marriage might confirm. And I think all the debates over which type of family produces the best outcomes for children ought to be meaningless as a matter of state policy. Gay or straight, single or married, let’s try to create the conditions in which all families can succeed. Blankenhorn sees an inner circle of honor and benefits that should be attached to marriage, and he’s now extended that circle to include gays and lesbians. I want to erase that circle.

But there’s another difference between Blankenhorn and myself. Even as I hoped that gay advocates would take a more expansive view of household recognition, and even as I criticized the amount of resources that were spent on same-sex marriage at the expense of other issues like transgender rights or employment nondiscrimination, I never sought to hold marriage-minded gays hostage to my cause. I tried to convince them—and mostly failed. But I always supported full legal equality (I just have a different vision of what that might mean). Blankenhorn did not. He was more than willing to use the issue of same-sex marriage as a cudgel to force his vision of marriage on the American public—and that included the craven strategy of denying legal equality to gays and lesbians. If he has recanted that path, he hasn’t shed an ounce of his conservative views on marriage tout court. Indeed, he concludes his New York Times op-ed by calling for a new coalition of gays and straights who want to strengthen marriage as an institution over other types of households. He asks:

Once we accept gay marriage, might we also agree that marrying before having children is a vital cultural value that all of us should do more to embrace? Can we agree that, for all lovers who want their love to last, marriage is preferable to cohabitation? Can we discuss whether both gays and straight people should think twice before denying children born through artificial reproductive technology the right to know and be known by their biological parents?

In other words, Blankenhorn once thought gay marriage could be a useful instrument to instill his regressive, archaic and punitive views on marriage in the public and in the law. He still thinks that. He’s just made a political calculation that gays are more valuable now as recruits than as scapegoats.

Donna Summer and 'Metrosexual, Black Abe Lincoln'

The Queen of Disco is dead, and today my cake is definitely left out in the rain. I must have listened to Donna Summer’s “MacArthur Park Suite”—all eighteen, gaudily orchestrated minutes of it—hundreds of times. No, I’m not a child of the ’70s, but it’s a testament to the enduring allure of Summer’s 1978 mega-hit that by the time I was a baby gay tripping through the New York City club scene in the late ‘90s, “MacArthur Park” still closed out the night. Well, not the night exactly, more like the next day’s afternoon—around 2 pm, when DJ Junior Vasquez at Twilo would play the whole track as a come-down treat for the last remaining revelers. Not some shitty tribal-techno remix, and not the 1968 Richard Harris original (which has its own weird pleasures), but the Giorgio Moroder-Donna Summer version, the only version that has ever really mattered—with its protracted, string-and-horns bridge sections and Summer’s incendiary voice at its very best. As Moroder’s over-the-top arpeggios flung us into “Heaven Knows,” and Joe “Bean” Esposito on second lead played call-and-response to Summer—“Baby, please… Baby, please… please don’t take your love from me…”—the lights would come up. A little alarmed at how ragged we all looked, we’d start to file out of the club.


Out on the street in the sudden sunlight, we’d sometimes pass by black church ladies in their Sunday finery, and there might be a quick look of recognition and a shared smile. We were both leaving church, our respective houses of worship. And it seemed fitting that Donna Summer (née Gaines), raised up in the gospel tradition as the daughter of devout Christians, sang us home.

If disco is the byproduct of the merging of black and gay cultures, the common music of the urban oppressed, then Donna Summer is its undisputed avatar. Her status as a gay icon is, on paper at least, the most perplexing. There’s none of the camp associated with Barbra Streisand and Bette Midler, none of the studied theatricality and genre-hijacking charms of Madonna or Lady Gaga. But what Donna Summer captures better than any other gay icon is the appeal of the fallen. In the coos and purrs and climaxes of “Love to Love You Baby,” Summer celebrates herself as a good Christian girl gone bad, or one might say, a woman liberated to love.

There’s something about this Donna Summer—and about that unexpected Sunday moment between the nightclub and the church—that conservatives just don’t get. Why don’t religious African-Americans behave and vote more like their white, evangelical counterparts? Why aren’t more straight black leaders at the forefront of the anti-gay movement? What is it that binds gays and straight African-Americans together? These questions have long infuriated the religious right. Just take a look, for example, at recently leaked memos from the National Organization of Marriage that exposed their cynical strategy to “drive a wedge between gays and blacks—two key Democratic constituencies.” The memo continues: “Find, equip, energize and connect African American spokespeople for marriage, develop a media campaign around their objections to gay marriage as a civil right; provoke the gay marriage base into responding by denouncing these spokesmen and women as bigots…”

At one point, Donna Summer might have been one of these spokespeople. In the mid-’80s, as a born-again Christian, she allegedly said that AIDS was God’s punishment for the sins of homosexuality. Her fans rebelled, and she apologized, writing a letter to ACT UP explaining that she was “unknowingly protected by those around me from the bad press.” “If I have caused you pain, forgive me,” she pleaded. Most did, and today many a gay has gone into mourning. Sure, the fear of a boycott was a powerful motive for Summer to recant her anti-gay remarks, but I’d like to think that her apology was sincere, that in spite of her religious beliefs, she forged a deeper understanding between her faith and her gay fans, one based in the common rhythm of liberation that epitomized her best music. “A couple of people I write with are gay, and they have been ever since I met them. What people want to do with their bodies is their personal preference,” she later remarked.

As the whole world now knows, it’s also President Barack Obama’s “personal preference” that same-sex marriage be legal. And as if on cue, today the New York Times released details of “The Defeat of Barack Hussein Obama: The Ricketts Plan to End His Spending for Good.” Short on economic policy, the plan’s central proposition—other than rehashing the specter of Reverend Jeremiah Wright and black liberation theology—is the similarly cynical plan to recruit an “extremely literate conservative African-American” to argue that Obama duped the country into thinking he’s a “metrosexual, black Abe Lincoln.” In the double whiff of homosexuality (metrosexual and Abraham Lincoln) implicit in that bizarre caricature, one of the right-wing’s greatest fears is revealed. That gay (like black) just might be cool, at least cool enough for a politician to want to approximate in style. And so he must be torn down as what?—a poseur? Not a real metrosexual at all? Maybe even a secret homophobe?? Or too metrosexual to be really black???

Don’t think too hard about it; the architects of the Ricketts Plan surely haven’t.

Obama Endorses Gay Marriage—Kinda. Now What?

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Via ABC News

In an interview today with GMA’s Robin Roberts, President Obama announced his support for same-sex marriage. Coming off days of intense speculation and pressure on the White House to clarify the president’s position and explain how it squares with recent comments by Vice President Joe Biden and Education Secretary Arne Duncan apparently indicating support for same-sex marriage, the announcement has already been widely praised by progressives and gay rights advocates.

“President Obama’s ‘evolution’ is now complete. Congratulations, Mr. President, for making history today by becoming the first sitting president to explicitly support marriage for same-sex couples,” said NGLTF executive director Rea Carey in a press release. “This is a great day for America.”

In the interview, Obama continued with the theme of his “evolving” thinking on same-sex marriage, telling Roberts:

I have to tell you that over the course of several years as I have talked to friends and family and neighbors when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don’t Ask Don’t Tell is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.

Obama, however, stopped short of lending full support to the multi-state legal and political campaign for marriage equality. According to ABC News, the president stressed that his is a “personal position,” and that he continues to think that states should decide the issue independently.

In at least one crucial way then, Obama’s announcement stops short of a full reversal of policy. In the past, Obama has said that he thinks that “gay and lesbian couples deserve the same rights and legal protections that straight couples already enjoy,” but does not endorse same-sex marriage per se. This is not a coherent position. There simply is no legal category outside of marriage that grants same-sex couples all the rights and legal protections that straight couples enjoy—not civil unions, not domestic partnership arrangements. Only marriage recognized at the federal level and in all fifty states would do that.

Today, by endorsing a “states’ rights” approach to same-sex marriage, Obama essentially preserves the current status quo in which a handful of states recognize same-sex marriage and many states have constitutional bans against them. That is not marriage equality, and does not even reach the standard Obama previously embraced of equal rights and recognitions. Significantly, in the clip released by ABC News, Obama does not mention overturning the Defense of Marriage Act, the law currently under legal challenge that permits states to refuse to recognize marriages performed in other states and defines marriage as between one man and one woman. The Obama Justice Department recently declined to defend the latter part of DOMA in federal court, and the Obama administration has said they support repealing DOMA, supporting Senator Feinstein's Respect for Marriage Act.

Now the conversation shifts to the political consequences of his endorsement, and there’s already lots of chatter about how this might cost him the election or at least damage his chances in a few swing states, like North Carolina, which overwhelmingly passed an anti–gay marriage amendment yesterday.

I never say this, but: don’t worry. It won’t matter either way.

In a recent PEW poll, gay marriage polled eighteenth on a list of issues, with just 28 percent of voters saying that it is a “very important” issue. This trails obvious election setters like the economy (86 percent), jobs (84 percent), healthcare (74 percent) and other issues down the line like Iran (47 percent), gun control (47 percent) and even the GOP’s cause of the day, birth control (34 percent).


A few updates:

First, I’ve been criticized for being a negative Nelly—and it’s true, I am! While I stand by my analysis of Obama’s “states’ rights” approach, let me just say for the record that I applaud the president for saying what he said. He didn’t need to, and it’s not clear it will have political benefits. It took a measure of principle and guts. His remarks will have far-reaching and important cultural and political implications, and while it is overdue and more tepid than I would have liked, it moves him along the arc of justice. So thank you, Mr. President.

Now for more negativity: I’ve always held the view that the state should recognize a range of family formations and dependencies. See my article with Lisa Duggan for a summary. While I’m for full legal equality—whatever straights can have, gays should have too—the current marriage debate doesn’t really open a great window into the range of care-giving relations people have on the ground and the need to expand the recognition of those.

On the subject of any political fallout, beyond the Pew poll that shows that voters rank same-sex marriage very low on the list of priorities, there are a few other reasons to think Obama’s statement will either be a small boon or a wash. Independents have moved dramatically to embrace same-sex marriage to the point where over half of them support it. Young voters in particular favor same-sex marriage, and it’s possible today’s announcement energizes portions of Obama’s base. It will also almost certainly avoid a food fight at the DNC about the Democratic Party platform. Twenty-two Democratic senators, along with Elizabeth Warren and Caroline Kennedy, have called for a pro-gay marriage plank—and so Obama’s decision dodges one potential bad optic.

Don’t read too much into North Carolina’s passage of an anti-gay amendment yesterday. Yes, the vote was lopsided (61 percent in favor). But the turnout was low and concentrated among conservatives. In some polls, 53 percent of North Carolina voters support either same-sex marriage or civil unions, and yesterday’s vote didn’t reflect that. In a high-turnout election, the demographics will tilt in the right direction for Obama.

Yes, it’s true that the right-wing has already started frothing at the mouth. But they already think he’s a Muslim, communist traitor. It’s hard to see just how much more motivated they can get. What the right needs to grease the conservative turnout is not just a stark contrast in presidential candidates (which they now have in Obama and Romney), but state-ballot initiatives that motivate the grassroots, especially when the top of the GOP ticket is so meh.

They won’t have those this time around. In 2004, eleven states had anti-gay marriage amendments on the books, and there’s some speculation that it boosted Bush’s turnout (others disagree). Since then, some states have legalized same-sex marriage (like New York). Others have passed constitutional bans (like North Carolina, Florida, Virginia, Arizona and Colorado—all swing states). This leaves few states on the map where the right-wing can get an initiative on the ballot in November; the only one scheduled right now is Minnesota, where Obama leads Romney by 10-13 percentage points. No swell in right-wing turnout motivated solely by gay marriage is going to erase that lead.

Obama's 'Evolving' Position on Gay Marriage—Oh, Puhleeze!

REUTERS/Larry Downing

Joe Biden’s garbled statement on Meet the Press that he’s “absolutely comfortable with…men marrying men, women marrying women“ has the political world atwitter parsing the meaning and implications. Did Biden actually come out in support for same-sex marriage (not really, argues Andrew Sullivan)? Was this a calculated attempt by the administration to moonwalk into a pro–gay marriage position (possibly, says Josh Marshall)? Or was Biden off the leash in an unscripted break from the White House (no, counters David Axelrod)? Once Education Secretary Arne Duncan endorsed same-sex marriage on today’s Morning Joe, the speculation that Obama’s “evolving” position on gay marriage will reach its final, logical conclusion by November’s election went into overdrive (not gonna happen, concludes Chris Cillizza).

There’s one thing that has always irked me about Obama’s evolutionary narrative on same-sex marriage—and that’s not his position on it per se so much as the insincerity of his homophobia. To take Obama at his word, same-sex marriage is something he “wrestles” with, something he thinks a lot about and might support but for a deep conflict with his Christian faith. I’m not privy to what goes on in the president’s head, but frankly, this smells like bullshit.

As I wrote back in 2009, Obama unambiguously supported same-sex marriage in 1996. In response to a survey from Outlines, a gay community newspaper in Chicago, Obama took the unusual step of typing in his response: “I favor legalizing same-sex marriage, and would fight efforts to prohibit such marriages.” At the time, his was a position on the progressive edge of the Democratic Party.

Since then, in striking contrast to other members of his generation who have moved to support same-sex marriage—and in ways that are at odds with his other views on civil rights, family and citizenship—Obama has “evolved” rightward. There’s no other way to explain this shift except in the most obvious terms—as a matter of sheer political calculation. The further up the political food chain Obama went, the more he concluded that being adamantly pro-gay wasn’t to his electoral benefit. In other words, his current view isn’t a product of evolution so much as it is of intelligent design.

Except it doesn’t look so smart now. During his first term, young people and independents moved towards supporting same-sex marriage in significant numbers, and while I agree with Cillizza that the electoral math isn’t quite there yet to make this an outright winner for the Democrats, that day is not far off. I have no doubt that Obama would like to be on the right side of the “arc of history” on this one (and in other ways, like on “don’t ask, don’t tell,” he has been). But his current, muddled position makes it difficult to draw a sharp contrast with Mitt Romney (who has done his own share of waffling on this one). And more to the point—there’s the awkward matter of stage-managing a sitting president as he publicly wrestles with his conscience only to reach a conclusion that he himself already likely believes.

Obama needs an exit strategy—and that probably won’t happen until his second term. But maybe then some gay staffers or former students can get married, and he can attend their wedding and then get all misty in the Rose Garden. “Until I saw Chip and Ru united in matrimony, I didn’t see how meaningful the vow of marriage could be, and I didn’t understand how hurtful it was to deny gay and lesbian Americans this profound right…” Yadda yadda yadda. You can write the script now.

On the plus side, I do believe there are older Americans who are conflicted about this issue (and who often indicate that by saying they support civil unions, but not same-sex marriage)—and perhaps the president’s bit of theater could provide a template for their own moral conversion.

Yes, this is all breathtakingly cynical—but then again, so is President Obama’s current “evolving” position.

The Tyler Clementi and Dharun Ravi We Will Never Know

Dharun Ravi, a former Rutgers University student charged with bias intimidation, wipes his brow as he departs the courtroom inside of the Superior Court of New Jersey in Middlesex County, New Brunswick, New Jersey March 15, 2012. REUTERS/Lucas Jackson 

The verdict in the Dharun Ravi trial came down on Friday. As I wrote back in September 2010, Tyler Clementi’s suicide shatters that part of me that remembers what it was like to be 18 and in the nerve-wracking process of coming out—at once both bold and shy, alight with a sense of possibility one minute, jaded and world-weary the next. I survived, as most gay people do; Tyler did not. Why? Nothing that has been revealed in the trial and subsequent reports has satisfyingly answered that question for me. And nothing about the verdict gives me an ounce of comfort.

After turning down a plea deal that would have spared him jail time, Ravi was tried on thirty-five charges related to fifteen separate counts and was found guilty on twenty-four of them. Seven of these are for tampering with evidence or hindering the prosecution; eight are for invading or attempting to invade the privacy of Clementi and his sexual partner, identified in court only as “M.B.”

If Clementi hadn’t committed suicide, it’s quite likely that these charges would never have been brought against Ravi, and the whole matter might have been resolved by Rutgers authorities. But Clementi jumped from the George Washington Bridge just days after Ravi, his freshman year roommate for all of three weeks, saw him making out with M.B. on his web cam, tweeted about it and then hatched a foiled plot to broadcast a second encounter. As Ian Parker’s excellent New Yorker anatomy documents, a firestorm erupted, fueled by misinformation and speculation about what actually happened. People assumed that Clementi was closeted (he was not), that Ravi and his accomplice Molly Wei had watched entire sexual episodes (they only saw a few seconds of making out), that Ravi had recorded the incidents (he did not), that he successfully broadcast them online (he did not) and that Clementi was the victim of widespread homophobic bullying (he was not). Gay rights advocates recklessly called for manslaughter and hate crimes charges to be brought against Ravi and Wei. Facing intense public pressure, the Middlesex county prosecutor relented, in part. Wei struck a plea deal and testified against Ravi, who was convicted not just of invasion of privacy but on nine additional charges of bias intimidation, turning the conviction into a hate crime and creating the very real possibility that he could be sent to jail for ten years. His sentencing is on May 21. Because he is an immigrant, there is also a chance that Ravi could be deported to India.

On civil liberties grounds, I’m opposed to all forms of hate crimes legislation—punish the crime, not the thought, I say. But since hate crimes laws are on the books, it’s worth reviewing whether or not they were appropriately applied to this case. When hate crimes were expanded to include sexual orientation in the wake of Matthew Shepard’s murder, the argument for them was that they were necessary to prosecute violent crimes perpetrated by extremist agents of hate who were terrorizing whole communities. (Whether or not that description applies to Shepard’s killers, Aaron McKinney and Russell Henderson, is subject to debate. Whether or not hate crimes statutes were necessary to throw the book at them is not. Wyoming had no hate crimes statute, but McKinney and Henderson will both die in jail.) Dharun Ravi may have been, as one friend described him, “so much of a jerk,” but no one has alleged that he is a violent criminal. But is he a hater?

The cell phone and social media evidence that Parker combs through for his article suggests a more complicated picture than the initial caricature of Ravi as a cyber-armed, homophobic bully. Decode and contextualize the teen-text speak, and what emerges is a story of two boys, one more vulnerable than the other, trying to navigate—badly and without much guidance—the vicissitudes of close encounters of the freshman kind. Ravi expresses horror when he discovers online that his new roommate is gay (“FUCK MY LIFE/He’s gay”), but he later texts “I don’t care” and characterizes Clementi as “gay but regular gay”—a term he also used to refer to the month of January (“what a gay month”). He was also upset with what he believed to be the Clementi family’s poverty (“dude I hate poor people”). Clementi, for his part, expresses some alarm that his new roommate’s parents are “soo Indian first gen americanish” and so “defs owna dunkin’ [donuts].” Had the roles been reversed, it’s not impossible to imagine a scenario in which that text would be used in court as evidence of Clementi’s racism. Class, race, sex—the stuff that grips the grown-up world is all there in grammatically challenged, condensed crudeness, because teenage boys are the unadulterated personification of the collective social id.

Don’t mistake me. This isn’t a “boys will be boys and so it’s all okay” argument. Pace Christina Hoff Sommers, the piggish culture of teenage masculinity to which Ravi bowed all too obsequiously is not all right. Boys will be boys—and that’s why they need to change. What the record shows, however, is that that too was a possibility. Clementi requested a room change and reported the incident to an RA, who took it seriously and spoke to Ravi about it. Perhaps that would have ended the matter, or perhaps the two would have learned to live with each other. They might even have become friends. We’ll never know.

What we do know is that minutes after Clementi posted on Facebook “Jumping off the gw bridge sorry,” Ravi texted him two apologies. The latter read, “I’ve known you were gay and I have no problem with it…. I don’t want your freshman year to be ruined because of a petty misunderstanding, it’s adding to my guilt. You have a right to move if you wish but I don’t want you to feel pressured to without fully understanding the situation.” Ravi says that he did not see Clementi’s suicide post when he apologized. If this is true, it demonstrates Ravi’s capacity—however stunted and late—for moral reasoning and maturation. And maybe he will still grow up to be better man, but it’s hard to see how ten years in prison makes that process any easier.

Clementi, of course, will never have the opportunity to grow up. In the media’s gaze and in the court records, he is frozen as the ultimate victim, a symbol instead of the person he was and the potential person he might have become. For those close to him, this martyrdom adds another complicating layer to the grief. Tyler’s brother James, who is also gay, recently published some heartbreaking posthumous letters to his kid brother. In them, he writes:

“I wonder what you would think, seeing all the commotion you’ve caused. It is surreal and meaningless to see you as a mere story on The New York Times, a brief glimpse at a life with none of the detail. You were a typical college freshman, trying to adjust to a dorm room, make some friends, meet a cute guy, and enjoy your independence, and no one noticed. The headlines tell of how you were violated and ridiculed; your last moments are a cautionary tale, a scandal, something to sell and entertain.”

Among the things blotted out by the trial and media circus is the enduring mystery of why Tyler Clementi committed suicide. He had an older, gay brother with whom he had a close and supportive relationship. His parents' reaction to his sexual orientation was mixed; his father was cool, his mother not so much, but they were still in regular and civil communication. He was clearly vexed about what Dharun Ravi had done, but was discussing what to do about it with a friend, the RA and online message boards. There’s nothing in these records that indicated he was suicidal or even beyond appropriately anxious about a situation to which he himself saw a resolution within reach (a new room). He wasn’t the victim of bullying across campus, and although he was socially shy, he was also somewhat sexually daring. He had four years of college, and a life, to look forward to—and indeed, until his Facebook post announcing his suicide, he was doing just that.

There are all too many cases of gay teenagers whose lives have been made intolerably miserable and who are driven to suicide by the harassment and violence of parents, family, fellow students, teachers and other authority figures. This is not transparently one of them. And the trial and verdict to one side, there is another kind of injustice done when a life is crudely forced into becoming a symbol of social wrongs, when it is made to carry the burden of a composite reality—anti-gay hate crimes—to which it bears but a schematic and hasty relation.

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