This strategy is somewhat successful, because many voters are comfortable with legal abortion on demand as long as the child is still a “blob of cells,” but become uncomfortable once the child begins to take on human characteristics like a heartbeat. No one would accuse this view of coherence, but that’s life in a country with a vast, muddled middle on abortion. You attach unborn-child protections to a relatable human milestone, and you can gin up the votes to get them passed in a few states.

Of course, the pro-choice Cathedral* is unhappy about this. If there is a conflict between the political underpinnings of abortion rights and reality, it is always reality that has to go. (We’ve seen this before on this blog… and, of course, the very term “pro-choice” is a euphemism: what choice? Who, whom?)

So, on May 31st, the press dutifully invented a brand new term for fetal heartbeat: “embryonic pulsing.” A few days after that, the American College of Obstetricians and Gynecologists (ACOG) announced the henceforth official terminology for “fetal heartbeat”: “electrically induced flickering of a portion of the fetal tissue that will become the heart.”

This whole thing was a bit awkward. Ordinarily, the journalism arm of the Cathedral knows better than to start using the new euphemisms before they have been officially promulgated by the “medical experts.” The New York Times jumped the gun, which exposed the game they are playing.

We should take a moment to notice that, despite ACOG’s official decree, it’s not actually “fetal tissue.” At this age, it’s still embryonic tissue. Yes, a medical doctor speaking on behalf of tens of thousands of medical doctors made an obviously false medical statement in a sentence that was supposed to clarify medical reality. Yes, it’s the very same distinction that pro-lifers get hammered on all the time by the exact same people. (“It’s not a fetus; it’s a blastocyst!”)

No, it’s not surprising. It all makes sense once you realize that they don’t actually care about the embryo/fetus distinction; they only use these terms so they can avoid the ordinary English term: “baby.” ACOG holds pro-lifers to strictly accurate terminology for prenatal development, but they have no reason to hold themselves to the same standard.

So, the new official term is medically inaccurate. But ACOG hath spoken, and We the People are supposed to pretend that ACOG is an objective body of experts acting on pure rationality. “Fetal heartbeat” is now going to be safely suppressed for being, they say, “medically inaccurate.”

Please remember that they are lying.

I try to reserve that strong term, “lying,” for clear cases of deliberate deception. But that’s exactly what we have here.

The medically accurate, scientifically correct term is “embryonic heartbeat.” This term has been in the literature for generations. It is universally accepted and unchallenged, a poster child for “scientific consensus.” Just look at a tiny fragment of the literature:

“Embryonic Heart Rate as a Prognostic Factor for Chromosomal Abnormalities” (Journal of Ultrasound Medicine, 2009; deals with embryos younger than nine weeks)

“Evaluation of normal gestational sac growth: appearance of embryonic heartbeat and embryo body movements using the transvaginal technique.“(Obstetrics and Gynecology, 1991; deals with embryos between five to twelve weeks’ gestation) (of

“Embryonic heart rate in the early first trimester: what rate is normal?” (Journal of Ultrasound Medicine, 1995; embryos are six to eight weeks’ gestation)

“Embryonic heart rate in human pregnancy.” (Journal of Ultrasound Medicine, 1991; embryos are three to seven weeks old)

“Slow embryonic heart rate in early first trimester: indicator of poor pregnancy outcome.” (Radiology, 1994; “embryonic heart rate” is determined “prior to 8 weeks gestation”)

“Predictive value of the presence of an embryonic heartbeat for live birth: Comparison of women with and without recurrent pregnancy loss.” (Fertility and Sterility, 2004; embyronic heart rate obtained “between 6 and 8 weeks of gestation)

“Predictive value of early embryonic cardiac activity for pregnancy outcome.” (American Journal of Obstetrics and Gynecology, 1991; embryos are 5 to 9 weeks’ gestation)

“A close look at early embryonic development with the high-frequency transvaginal transducer.” (American Journal of Obstetrics and Gynecology, 1988; embryos are as young as 5 weeks 6 days when “the heartbeat appeared.”)

“What’s new in first trimester ultrasound.” (Radiologic Clinics of North America, 2003; “the primitive heart begins to beat at the end of the third week after fertilization”)

“Transvaginal versus transabdominal Doppler auscultation of fetal heart activity: A comparative study.” (American Journal of Obstetrics and Gynecology, 1996; embryos are between 6 and 9 weeks of gestation when “fetal heart rate” is detected.)

I pulled all those off Google Scholar in twenty minutes. There’s tons of them. I had room to be choosy for this article, but give me an hour and I can find a hundred more examples of peer-reviewed medical doctors and scientists talking about “embryonic heartbeat” like it’s the most natural thing in the world.

That alone doesn’t prove anything. Maybe ACOG’s official new terminology is even more popular than “embryonic heartbeat.” So now we ask: how often does the phrase “electrically induced flickering of a portion of the fetal tissue that will become the heart” show up in peer-reviewed scientific literature?

Of course, Google Scholar’s not the be-all end-all of academia, but it seems safe to say that, when Google Scholar can immediately find hundreds of matches for Phrase A, and zero matches for Phrase B, then Phrase A is the more common and scientifically accurate one.

How about the New York Times‘ even more made-up phrase, “embryonic pulsing”? That gets three matches on Google Scholar, but one’s an English paper and two are about a scanning technique. None are about embyronic heartbeats. Why? Because doctors refer to those as “embryonic heartbeats.” It’s the New York Times and its friends at The Daily Beast et. al. that doesn’t want to make the heartbeats go away. (They should re-read Poe’s “The Telltale Heart;” it will resonate!)

One more: in December 2015, Dr. Jen Gunter, a late-term abortionist who is sometimes treated as a neutral source by mainstream media, asserted that the most correct term would be “fetal pole cardiac activity.” She’s since been quoted favorably on this in outlets like Wired and Forbes. Does her euphemism have any more traction than the others? At first glance, you might think so! There are 38 results for “fetal pole cardiac activity” on Google Scholar! Doesn’t hold a candle to the 735 for “embyronic heartbeat,” but still, that shows some scientific uptake of her terminology, right?

But that’s when you realize that the matches for “fetal pole cardiac activity” are actually for lists: things like “…fetal pole, cardiac activity, and gestational sac,” or, “If a fetal pole/cardiac activity is detected…” or, “presence of a fetal pole +/- cardiac activity.” Some of the authors of these articles even appeared on my list above as users of “embryonic heartbeat!” So it appears that nobody in the literature has used the actual phrase to describe an actual embryonic heartbeat except Dr. Jen Gunter… and, of course, a mainstream media that is desperate to escape the simple, uncomfortable reality of “heartbeat.”

Now that the Cathedral has denounced the term “embryonic heartbeat” as wrongthink, you can expect it to disappear within a year or two. New articles will have the phrase stripped out and replaced with the new, politically correct terminology… even if it makes the articles less clear and less accurate. The authors of the articles I’ve cited will either keep their heads down or apologize for ever having used it. (They’re probably mostly pro-choice anyway.) Anyone who does use the term now will be accused of having “an agenda.” They’ve pulled this very same language trick before: with the beginning of pregnancy (it’s at fertilization), with the word “abortionist,” with the very idea of an “unborn child.” I already see it happening with “embryonic heartbeat.”

That’s why I wanted to get this down, on the record, before it’s washed away by the overwhelming coercive power the abortion industry can bring to bear on the scientific and journalistic communities: they are lying. The only people who have ever challenged the scientific term “embryonic heartbeat” are people who find that language politically inconvenient. It’s an uncontroversial term with consistent usage and universal acceptance that dates back decades.

So, when you hear a complaint that a “heartbeat bill” uses medically inaccurate or unscientific terminology, remember:

They are lying.

They are lying.

They are lying.

*I spent about 15 minutes trying to find a good, succinct, link that would define “the Cathedral” concept for those unfamiliar with it. But the term comes from Mencius Moldbug, who did nothing succinctly, and I don’t think anybody who has tried to boil it down has succeeded. So, sorry to throw an 11,000-word article at you in an aside, but it’s a pretty good one.

**Image credits: human heart development by OpenStax College. Fetal remains by Wikipedia user “Anatomist90.” All images used under their open CC BY 3.0 licenses.

I’ve spent the weekend absorbing the explosive testimony of Archbishop Carlo Maria Viganò, who claims that many people in the Vatican, including Pope Francis, ignored the homosexual harassment and abuse of adult seminarians by Theodore Cardinal McCarrick.

Viganò makes a lot of factual claims in his statement, and Catholic media is struggling to confirm or disprove as many of them as possible. (The mainstream media is transparently not bothering; they are instead investigating Viganò personally.) I am having trouble keeping track of all of it, and I’ll bet you are, too.

This thread is simply an attempt to gather all the relevant documents into one place where I can keep them all straight.

I am no longer actively updating this listing, as I feel we have covered the main questions of the original Vigano testimony pretty well, and the core questions of fact are settled. Have I missed anything? Let me know in the comments!

Do you have unpublished information that you want to share? You can contact me at my Gmail account (username “james.j.heaney”). My account is as secure as a Google email account can be. Is that insufficient? Then contact J.D. Flynn, editor-in-chief of Catholic News Agency, at his encrypted, secured email address: c831news@tutanota.de. (Be sure to contact him from a secure, encrypted email address of your own; I recommend signing up for a free encrypted account from tutanota.com.)

I. The Testimony

The Testimony Itself

Testimony of Carlo Maria Vigano, 22 August 2018

A Useful Supplement

A friend of mine, Charles Corbett, put together a remarkably detailed Google Spreadsheet laying out the timeline of events and (perhaps most importantly) personnel assignments in various offices during the period discussed in Vigano’s testimony. He’s still expanding it, but check it out!

Did Pope Benedict sanction Cardinal McCarrick?

Yes, he did, but they were informal rather than formal sanctions. This was much disputed for weeks (as the links below show), but the facts were clearly established by Cardinal Ouellet in his letter of 7 October 2018:

The former Cardinal, retired in May of 2006, had been requested not to travel or to make public appearances, in order to avoid new rumors about him. It is false, therefore, to present those measures as “sanctions” formally imposed by Pope Benedict XVI and then invalidated by Pope Francis… [T]he letters from my predecessor and my own letters urged him, first through the Apostolic Nuncio Pietro Sambi and then through you, to lead a life of prayer and penance, for his own good and for the good of the Church.

Ed Pentin, National Catholic Register, 25 August 2018 confirms sanctions:

The Register has independently confirmed that the allegations against McCarrick were certainly known to Benedict, and the Pope Emeritus remembers instructing Cardinal Bertone to impose measures but cannot recall their exact nature.

Die Tagespost, 28 August 2018: Archbishop Gänswein, private secretary to Pope Benedict, denies any direct papal comment on the overall testimony [GERMAN – Google Translated] (notably, this isn’t exactly what the Register claimed):

“Pope Benedict has not commented on the ‘memorandum’ of Archbishop Viganò and will not do so,” Gänswein told the newspaper. The claim that the emeritus Pope had confirmed the statements lacked any foundation. “Fake news!” Says Gänswein.

Ed Pentin, National Catholic Register, 28 August 2018, “Archbishop Gänswein’s Comments Were Correct and We Stand By Our Reporting“:

“Archbishop Gänswein did not go into any more details, but he did not refute that Benedict issued sanctions. The Register fully stands by its reporting, drawn on sources close to the Pope Emeritus, that sanctions were issued by Benedict against McCarrick.”

Ed Pentin, National Catholic Register, 31 August 2018, “Further Questions Emerge About Benedict XVI’s Sanctions on McCarrick.”

As far as Benedict could recall, the source said the instruction was essentially that McCarrick should keep a ‘low profile.’ There was ‘no formal decree, just a private request.’ …McCarrick continued to be “very able” and “influential at high levels — ecclesiastical, cultural and political” and so could ignore the sanctions imposed upon him.

Lisa Bourne, LifeSiteNews, “EXCLUSIVE: Viganó doubles down: McCarrick was restricted under Benedict, but ‘he didn’t obey.’”

Although LifeSiteNews is a bad, often dishonest source, it is impossible for this page to ignore their exclusive interview with Vigano, in which Vigano explains several instances where McCarrick was seen to violate the alleged sanctions on him.

Ed Condon, Catholic News Agency, “Former nunciature official: ‘Vigano said the truth’“, 26 August 2018

This piece simply reports that Monsignor Jean-François Lantheaume, named several times in the Vigano testimony, confirms the testimony.

Lantheaume, former first counselor at the nunciature in Washington, thus confirms that he overheard a shouted conversation wherein Nuncio Sambi informed Cardinal McCarrick of Vatican sanctions placed upon him. This also confirms a conversation Lantheaume had with Cardinal McCarrick in July 2013, where McCarrick used words that Vigano alleges were very similar to words used by Pope Francis in June 2013.

Lantheume Facebook Chat Excerpts, posted by Hilary White, What’s Up With The Synod?, 27 August 2018

These excerpts include a screenshot, but screenshots can be easily doctored, and the source is not highly reputable, so this must be considered unconfirmed.

Fr. Matt Malone, S.J., America, 26 August 2018, “McCarrick’s public behavior showed zero indications of sanctions” [mirrored from Twitter]

Between 2011, when Vigano says McCarrick was already under sanction, and 2013, when Pope Benedict resigned, McCarrick acted in ways that clearly violated the sanctions Vigano says were imposed upon him, including directly in front of Pope Benedict. He preached at St. Patrick’s Cathedral, joined the American bishops’ ad limina visit to the Vatican, and other events that demonstrate McCarrick was either brazenly flouting his sanctions or did not have any.

Nicole Winfield, A.P., 28 August 2018, “Pope’s alleged cover-up pivots on if and when sanctions were imposed on McCarrick”

“The historical record is rife with evidence that McCarrick had lived under no such restrictions. He traveled widely, including for Catholic Relief Services, the humanitarian branch of the U.S. church. He went to Iran in 2011 with a religious delegation to try to win the release of two American hikers arrested after crossing the border. He celebrated Mass publicly. He traveled to Rome with the entire U.S. conference of bishops for their once-every-five-year visit in 2012 and was even on hand for Benedict’s final general audience on Feb. 27, 2013.

In a 2010 video posted on YouTube, McCarrick was shown visiting the national seminary in Haiti that had been damaged earlier by the devastating 7.0-magnitude earthquake. ‘The boys are still living in tents,’ McCarrick said as young Haitian seminarians were shown milling about.”

Michelle Boorstein, Washington Post, 31 July 2018, “As rumors of sexual misdeeds swirled, Cardinal McCarrick became a powerful fundraiser for the Vatican”

This story predates the Vigano testimony, but contains a remarkable passage near the end:

“McCarrick retired as archbishop shortly after he turned 75, in 2006. It’s standard for bishops to offer their retirement to the Vatican at that age, but it’s common for them to keep working for years if both sides wish. McCarrick was a hard-working striver whose routine didn’t appear to slow until very recently.

“He remained extremely active in the church, traveling on diplomatic missions, fundraising and officiating weddings and baptisms.

“The person who worked with McCarrick [“a person active in church organizations who collaborated on causes with McCarrick”] said they suspect church leaders in Rome had chastised McCarrick in some way, telling him to pull back from public life.

“‘But he did whatever he damn well wanted,’ the person said.”

This could refer to the sanctions allegedly Benedict placed on McCarrick in 2009 or 2010, but, given the timing, more likely refers to the sanctions Cardinal Wuerl allegedly placed on McCarrick in 2017 or 2018.

David Gibson, Religion News Service, 21 June 2014. “Globe-trotting Cardinal Theodore McCarrick is almost 84 and working harder than ever“

This is suggestive, but no more than that:

“McCarrick is one of a number of senior churchmen who were more or less put out to pasture during the eight-year pontificate of Pope Benedict XVI. But now Francis is pope, and prelates like Cardinal Walter Kasper (another old friend of McCarrick’s) and McCarrick himself are back in the mix and busier than ever.”

Did Vigano Tell Pope Francis About McCarrick?

It seems pretty unlikely we’ll be able to prove this one way or another, but we can look at Vigano’s account of his meetings with Pope Francis and see what can be proved.

Catholic News Service, 29 August 2018, “Pope Meets Archbishop Vigano.”

This accords with Vigano’s account of his meeting, except that Pope Francis just doesn’t seem as unfriendly as Vigano presented him. The timing of the cutaway is very unfortunate.

When did Rome learn about McCarrick’s abuse of adult seminarians?

Joan Desmond, National Catholic Register, 28 August 2018, “Whistleblower Father Boniface Ramsey Reacts to Archbishop Viganò’s Letter“

Confirms Viganò’s claim that, with some prompting from then-nuncio Archbishop Montalvo, Fr. Boniface Ramsey sent a letter to the nunciature in 2000 notifying them of McCarrick’s abuse. Viganò further asserts that the letter was swiftly passed on to Rome, but Fr. Ramsey has no knowledge of that.

Gerard O’Connell, America, 30 August 2018, “Vatican officials refuse to discuss Viganò’s letter, encourage journalists to study it.”

“Apart from the question of the sanctions, America has learned from a Vatican source that even before John Paul II appointed Archbishop Theodore McCarrick to Washington, D.C., in 2000, it was already known by some in the Secretariat of State, and perhaps in other parts of the Roman Curia, too, that the archbishop was taking seminarians to his beach house.”

What did Cardinal Wuerl know and when did he know it?

Ed Condon, Catholic News Agency, “Where did retired McCarrick live after seminary?”

Statement of the Archdiocese of Washington on the Testimony, 27 August 2018, denying direct knowledge of any sanctions

Christopher Altieri, Catholic Herald, 27 August 2018, “Spokesman confirms Cardinal Wuerl cancelled meeting”

Vigano stated in his testimony that he called Cardinal Wuerl to request that an event between McCarrick and seminarians be cancelled, saying that it was clear to him that Wuerl understood why this was necessary. An archdiocese spokesman confirms that the cancellation took place, but not that the cardinal knew the reasons why.

Ed Condon, Catholic News Agency, 30 August 2018, “Seminarians were McCarrick aides amid abuse investigation.”

What did Cardinal Tobin know and when did he know it?

Letter of Cardinal Tobin to Newark Priests, 17 August 2018. [imgur mirror]

“…no one — including the anonymous ‘sources’ cited in the article — has ever spoken to me about a gay subculture in the Archdiocese of Newark.”

Mike Kelley, New Jersey Record, 31 August 2018, “The secret life of Catholic Cardinal Theodore McCarrick and reports of sex abuse”

Cardinal Tobin claims he was not told about the McCarrick settlements and that he had heard “rumors” about McCarrick’s beach house, but dismissed them as incredible.

This story also claims that Tobin is launching an internal investigation to find out why he wasn’t told these things. If truly independent, the investigation will likely tell us whether he is lying about any of this.

What else did Viganò say that has been corroborated or denied?

Letter of Archbishop Cordileone (San Francisco), 29 August 2018, with a very vague statement that corroborates… something:

“Moreover, while having no privileged information about the Archbishop McCarrick situation, from information I do have about a very few of the other statements Archbishop Viganò makes, I can confirm that they are true.  His statements, therefore, must be taken seriously.”

II. Viganò’s Credibility

Why did Vigano do this?

Aldo Maria Valli, 27 August 2018, “Archbishop Vigano gave me his testimony. This is why I published it.” [Italian original – English translation here]

Aldo Maria Valli, 29 August 2018, “Vigano Speaks: ‘I am not the crow and I do not want revenge.’” [Italian original – English translation here]

Michael Sean Winters, 26 August 2018, “Vigano letter exposes the putsch against Pope Francis”

This piece violates my “primary sources only” rule with, essentially, speculation and imputed malevolence, but I felt it important to represent the strong pro-Francis narrative that says Vigano is doing this for ideological reasons.

Did Viganò quash the Nienstedt Investigation?

Memo of Fr. Dan Griffith to Bishops Piché and Cozzens, 7 July 2014

Pages 5 and 6 are quite damning toward Viganò, based on the account given Fr. Griffith by Bishops Cozzens and Piche.

Affidavit of Jennifer Haselberger, 14 July 2014. Noted here principally for the striking statement:

“…it was and is my opinion that the worst possible situation from a child protection standpoint would be one where Bishop Piché would assume even temporary governance of the Archdiocese. I say this because, in my experience, Bishop Piché was a bigger obstacle than Father McDonough to any sort of movement towards truly implementing the requirements of the Charter.”

Letter from Archbishop Vigano to Cardinal Ouellet, 13 November 2014 [ITALIAN]

Translation of the above letter into English [mostly Google Translate with a little help from me]

Letter from Bishop Piché to Cardinal Ouellet, 20 November 2014

Jennifer Haselberger says what she knows of the investigation, 17 June 2015

New York Times reports on Griffith Memo, 21 July 2016. (The Memo was released that week after legal agreement with Ramsey County attorney to end criminal investigation of Archdiocese of Saint Paul and Minneapolis.)

Statement of Archbishop Vigano on the Nienstedt Affair, 26 August 2018

Response of Fr. Dan Griffith to Vigano’s Statement, 28 August 2018

“I stand by my July 2014 memo to Bishop Lee Piche.”

John Allen, Crux, 31 August 2018, “Questions Still Surround Papal Accusers’s Role in Nienstedt Probe.”

Mostly notable for the revelations that Cardinals Dolan and O’Malley were aware of the allegations against Nienstedt, specifically that O’Malley personally asked the Pope to accept his resignation.

Bishop Cozzens’ Statement, 31 August 2018

“When Bishop Piché and I believed that we were being told by the nuncio to close the investigation, we strenuously objected. When the nuncio clarified that we should focus the investigation and complete it, we did so.”

Is Viganò now in hiding?

BBC, 28 August 2018, “Pope critic Archbishop Vigano ‘in hiding’”

…but he sure gives a lot of interviews for a guy in hiding.

III. Pope Francis’s Credibility

What has Pope Francis said about the Viganò testimony?

Full Text of Pope Francis’s In-Flight Press Conference, 26 August 2018, in which Pope Francis refuses to comment on the testimony.

Has Pope Francis tolerated abusers in the past?

SNAP, 16 June 2014, “Pope Francis will meet with the wrong people”

“Ariazco never got a reply when she wrote to then-Cardinal Bergoglio. Cuattromo was rebuffed when he sought help from then-Cardinal Bergoglio. And Varela was belittled by Bergoglio’s staff and forcibly removed from Bergoglio’s office by security.”

Ana Delicado, Publico, 3 May 2013, “The Pope Covered Up Priest’s Abuse of My Son.”

Carol Glatz, Catholic Herald, 15 September 2015, “Vatican releases list of participants for Synod on the Family.” Significant because Pope Francis specifically and personally invited disgraced Cardinal Danneels of Belgium, who was caught on tape trying to protect a sex abuser from criminal charges.

The Local (Spain), 20 November 2014, “‘Paedophile Priests’ acted like a cult: report.” In this story, the Pope heard an accusation and intervened directly in the case to ensure it was fully investigated. (Ultimately, the story was not corroborated and a the accused was acquitted, but the papal intervention still spoke well of Francis’s interest in preventing and punishing abuse.)

Nicole Winfield, Associated Press, “Pope quietly trims sanctions for sex abusers seeking mercy,” describing how Pope Francis relaxed penalties Pope Benedict had imposed on abusers and discarded recommendations of his own sex abuse panel to deal with abusive bishops.

Der Spiegel, September 2018, “The Silence of the Shepherds,” a fairly devastating cover story, from a formerly sympathetic newspaper, describing Pope Francis’s abdication of leadership.

I haven’t blogged in months, because I haven’t quite known what to say.

In May 2016, I wrote a pretty radical piece calling for the formation of a new political party in the wake of the Trump candidacy (now presidency). I had several follow-ups throughout the year, encouraging voters in “safe” states to vote for third-party candidates and talking about the early goings of the new party I happened to join, the American Solidarity Party — among other things. I received quite a lot of kind and supportive mail from readers, many of whom indicated that you were ready to pick up a flag and follow me. Thank you for that.

And yet, while American politics are somehow even more obviously dysfunctional than they were this time last year, it’s obvious to everyone that the viable New Party I called for and predicted has not actually emerged. The Republicans and Democrats are still the only game in town, and (unless somebody with a lot of money has a BIG trick up his sleeve) they’ll still be the only viable parties on Election Day 2018. I felt I couldn’t continue this blog until I had come to grips with that. I owed some explanation to all of you who supported me.

So what happened?

Back in the original post, I listed nine things that needed to happen in order for a new party to emerge. Let’s go through those items, one-by-one, to see why it didn’t:

1. A new party must draw sizable numbers of voters from both existing political parties.

I was counting on anti-Trump Republicans coming together with blue-collar Democrats to form a new coalition that can draw votes from both sides and thus avoid playing the spoiler. I said last year that there’s enormous potential for a coalition like this, and that’s held up better than anything else I said in that post.

Although polls report Republicans still have high approval ratings for Donald Trump, what the polls are underemphasizing is that the number of Republicans has fallen rapidly in the Trump Era. Trump isn’t keeping the loyalty of Republican voters; his odious behavior is driving out Republican voters by the truckload. This allows his polling numbers “among Republicans” to stay high: practically the only people still self-identifying as Republicans in polls are Trump loyalists or converts.

Meanwhile, Democrats are riven by internal conflicts about whether pro-lifers are allowed to be Democrats. They simply ignore the fact that more than 30% of Democratic voters want to impose severe restrictions on abortion, while more modest restrictions like ending partial-birth abortion are popular even among the more liberal wing.

So there are a lot of people out there who might be willing to join a new coalition. But they haven’t been activated, because…

2. A new party starts at the grassroots.

The Republican Party was born when the most active voters in the Whigs and the Democrats reached a breaking point and stormed out. The 1850s were, in many ways, a more democratic time (also, not coincidentally, a more republican time). More Americans were more engaged in politics and more willing to join drastic political upheavals. Any new party today is bound to face more inertia than the politically active antebellum generation did.

But we don’t seem to be dealing with mere inertia here. I think the word is ennervation. Abolitionist Whigs in 1854 demanded their party change or die. Conservative Republicans in 2017 have asked their party politely to change and more or less gone along with it when it didn’t. I cannot count the number of friends I have who opposed Trump with every fiber of their being during the primary, cast a vote for him only as a desperate last resort to stop the even-more-nightmarish Clinton presidency… and yet now defend Trump on everything from North Korea to James Comey.

I am not one of these progressives who think the only way to join #TheResistance is to oppose absolutely everything Trump does simply because it’s Trump doing it.  But I also don’t think that the President’s dishonesty, open misogyny, recklessness, and inconstancy can be casually chalked up to “all politicians are imperfect, so why worry about it?”

Whether or not you personally agree or disagree with me, most of the people I was counting on to join the new coalition thought the very same thing… at least until Trump actually won. Now the people I was counting on to storm out of the party are, by and large, serving as President Trump’s Facebook Defense Counsel in the matter of Russia v. United States Election Integrity. Yes, I strongly agree that Trump’s appointment of Neil Gorsuch to the Supreme Court saved this country, and deserves our highest praise. Gorsuch covers a multitude of Trump’s sins… but not those of the Republican Party that vomited him up.

The few activists who did leave in protest don’t seem to be enough to sustain a movement. Many others who dropped out simply became too dispirited to continue operating in politics at all. No surprise, after watching so many friends get aboard the Trump Train. Which makes it really problematic when we come to…

3. A new party needs major support from existing elites.

You think Paul Ryan doesn’t stay up late at night dreaming of giving Donald Trump the finger and storming off to form a new low-tax “compassionate conservative” party with Ryan reinventing himself as a more budget-conscious George W. Bush? You think T. Boone Pickens isn’t pining for the dreams of a lost Jeb!, while Mitt Romney wonders what Trump had that he didn’t? Of course they’d love to cut loose the Trump rump.

But they can’t. The boldest anti-Trump Republican in Congress, Sen. Ben Sasse, was extremely critical of Trump throughout the campaign, often in downright unfriendly terms. Now Trump is President, and elements of the Nebraska GOP have threatened Sasse with a primary challenge if he doesn’t cool his jets and support the Republican President. He and others have gotten the message. Ted Cruz walked back his non-endorsement of Trump and now works with Trump as productively as he can. Politicians are basically crowd-surfers, trying to ride popular sentiment to keep them off the ground. Since the grassroots haven’t formed a good conservative anti-Trump mob, any politician who jumps in that direction will break his neck. I said in my piece that a new party would need support from a Ryan or a Sasse within 12 months to survive, but neither Ryan nor Sasse are politically suicidal.

This seems to be true all the way down the ranks.

When I was a Republican, I served in some very low-ranking positions, the elbow-grease jobs you work in for years before the party trusts you with anything policy-related. I was a precinct vice-chair, a precinct chair, and a member of a local GOP “rebranding” committee after the 2012 defeat. In other words, I was a nobody, slowly learning the actual craft of politics from the kind veterans who took me under their wing.

Then I defected to the American Solidarity Party of Minnesota. I have been there for nearly a year now, and I remain the highest-ranking defection from either current political party. They made me statewide Secretary, a position I hoped would be temporary once we got actual experienced people in the door… but it looks now like I’m serving out my full two-year term.

That dog just won’t hunt. My modest experience with Robert’s Rules is nice, but we need organizers, pamphleters, door-knockers, event planners, web designers, experienced parliamentarians, committeemen, lawyers, bureaucrats. We need people who know how to recruit candidates because they’ve done it before. We need people who’ve raised a million dollars for the Republicans (or the Democrats) and have the connections to help us do the same.

Otherwise, we’re not a political party. We’re a debating society with delusions of grandeur.

4. The new party must be animated by a massively appealing central issue (or two) which the two existing major parties have given short shrift.

I think there are still one or two pretty key issues that are popular enough to rally an American coalition around them: Americans love the social safety net and Americans love the unborn. Stick ’em together, win elections. But this isn’t happening. Could be because of the failures I described above. Or it could be because these issues aren’t as appealing as I’ve argued. (My friend David Riehm argued the latter in these pages a few months ago.)

5. The new party must remain flexible on most everything other than its central issues.

One of the things I’ve learned in my months as Treasurer of the American Solidarity Party of Minnesota is that people who are new to politics love platforms. Winning elections is hard, but writing a platform is easy. Politicians are always flawed, but a platform can be chiseled and sanded to glittering perfection. Legislation is always a painful compromise, but a platform can be a bold and comprehensive vision of a new future that uplifts the spirits of everybody in the party.

The problem is that those “comprehensive” platforms alienate everybody outside the party. You can often gather together people from across party lines who agree on four or five issues and are willing to compromise on two or three more… but the American Solidarity Party’s ridiculous new platform has 149 separate bullet points in it, demanding everything from a higher minimum wage to changing the way every American votes to demanding greater “input of indigenous populations in land-use deliberations.” The only people who support this entire platform are already paid-up members of the American Solidarity Party. You can afford to do that when you’re a behemoth like the Republican Party with tens of millions of members across every state–voters don’t have much choice but to pick the least painful of the two major parties, so they do–but when there’s only a few hundred of you, a comprehensive platform is a good way to make uncommitted voters (and wealthy donors) look elsewhere.

And yet, this was not a close vote. Despite the best efforts of myself and others, the ASP’s new platform passed in online convention with something like 95% support.

Anyone with even a tiny amount of experience in actual electoral politics knows that platforms are inert hot air at best, dangerous minefields at worst, and that no actual politician in America today pays any attention to his party’s platform. Insiders deploy the platform and the platform committee strategically to suck up the energy of rubes and newbies who they want kept away from the levers of real power.

But, when the most experienced political operative in your organization is the ex-vice chair of a non-competitive precinct in a state of the opposite color, nobody recognizes that. They go ahead and suck up all their own energy producing a document that can only hurt the party. Mine is not the only nascent party that has killed itself this way.

I would like to put in a good word for the Federalist Party here. They’re another new party that has a lot of deficiencies (they appear to be exclusively right-wing, so I can’t see how they become a governing majority), but they have evidently attracted a few more experienced players from Washington, and their platform takes the eminently sensible position that (aside from a few vague principles) there’s no point in putting down specifics without a strong organization and accountability for their candidates.

The Federalists may be the first and only new party of the 21st century to get this.

6. The new party will not just emerge one night; it is born of many long discussions with all sorts of people and careful measurement of the electorate. 

From my original post:

The man who led all those officials into a schoolhouse to birth the GOP, Alvan Bovay, had been talking to other people around the country about a new party for a while. He wasn’t alone. Although the mass defections from the Whigs were spontaneous, that energy was able to be harnessed into a new party thanks to years of quiet discussion, in which politically-minded people across the country gauged what might and might not work in a new party. When the Kansas-Nebraska Act finally came to light the fire, people around the country were ready with the bold Republican answer to widespread Whig dissatisfaction.

This didn’t happen.

Maybe it’s happening now, in some quarters, but most of what I’m seeing on my Twitter feed is retrenchment, not reaching out. The most common response to Ben Sasse attacking Donald Trump for (e.g.) Trump’s opposition to the First Amendment is not “thank you, and let me join your cause.” It’s either, “You’re a traitor for not supporting OUR president!” or (especially on Twitter) “You’re a fraud who postures opposition to Trump while supporting his agenda.” As if #Resistance to Trump meant rejecting every single thing about Republicanism or conservatism.

In short, if there’s a common ground, it hasn’t yet been located and, if there is a foundation on which a new political movement could be built, it hasn’t been laid yet.

7. The new party can only emerge in a time of political instability, when dissatisfaction in both parties is running very high.

This remains true, and the instability in our political system — which is somehow still increasing here in 2017 — is going to keep the window open for a new political party for the foreseeable future. It’s just that nobody’s climbing in that window right now.

8. The new party must show regional strength before it can be seen as nationally viable.

So many things have to happen before this is even relevant. For starters, a new party needs to elect someone — anyone! — to public office.

9. The new party’s ascent to power isn’t going to be clean.

Still true.

***

So, taking all this into account, why didn’t a new party happen this year?

While there are enough disaffected voters to support one, the minor party apparatchiks and grassroots voters who are the bone and sinew of any political movement did not walk away from 2016 thinking a new party is necessary. They doubled down on their partisan commitments, with many of those who had considered themselves anti-Trump gradually becoming pro-Trump (while something similar happened with Sanders voters on the other side). This meant that the voters who did defect turned out to be largely extreme ideologues (hi) who were, as a whole, either too purist or too inexperienced to create viable alternative power structures, while party elites and elected officials who might otherwise be inclined to jump ship had nowhere to land.

So, if you want to blame somebody for the lack of a new party this year, go find the name of your local Republican and Democratic precinct and district chairs, who once hated Trump (and/or Clinton), but who made their peace in the name of the greater good. Now they retweet hardline press releases from their Twitter accounts, refuse to criticize their own side sincerely, and work hard to convince themselves that nothing’s really changed in the wake of the 2016 primaries — that the familiar bad guys are still the bad guys and the good guys are all still good. As long as they are loyal, the Sixth Party System will never die.

A new party requires a precise mixture of ingredients to explode into the body politic, and a key ingredient weren’t there this year. As our politics worsens, there will be more and more opportunities for a new party to form, but 2016-17 wasn’t the year for it. We must hope that, eventually, Americans crack this nut, because the most likely alternative would seem to be civil war.

I plan to continue serving in my role as Secretary of the Solidarity Party of Minnesota until the end of my term, partly so that, when the time does come, there’s a chance of there being some viable institutions already up and running… but mostly because I promised I would.

If I wrote more, I’d just get more depressing and cynical, so I’ll stop here. I’m not certain my explanation of 2016-17 is right, but it is at least thorough. Any questions or comments, write them in the combox. Thank you again for all the support you’ve given me these past fifteen months.

However, a great many people have already weighed in on the substance of Trump’s Executive Order, and I don’t have much to add to the global conversation. On the other hand, a friend asked me the other day whether Trump’s EO is legal, and I think that that discussion has been badly neglected by almost everyone.

Those who are talking about the law are largely talking nonsense. While protesters chant that the order is “unconstitutional” simply because it “advances prejudice” (as one Facebook commenter put it to me), a surprising amount of the discussion by the Great and Wise has revolved around loose comments by private citizen Rudy Giuliani about a so-called “Muslim ban,” which critics have tried to tie to the EO and thus to the Establishment Clause. Even if they succeeded in this, it’s a thin case against the EO’s legality, since potential immigrants (who are not persons under U.S. jurisdiction) have very few constitutional rights in the first place. In light of the fact that many of President Trump’s harshest critics positively applauded President Obama’s actually unconstitutional orders on immigration and health care, one suspects there may be some motivated thinking at work here.

Right-wing defenses of the EO, by contrast, have relied (in my opinion) far too heavily on the President’s constitutional foreign-affairs power, which does give the President broad authority to act in the national interest, but with the caveat that Congress can severely limit it by statute.

Congress has done just that. The legality of the EO is not primarily a constitutional issue, but a statutory one. The best attack on the EO so far, proposed by David Bier for the New York Times and expanded on by Patterico at RedState, revolves around the statutes in question, and attacks the EO solely on the basis of those statutes. My favorite Congressman, Justin Amash, has endorsed these attacks.

However, those attacks are mistaken. Solely on the basis of the statutes in question, it is clear that the EO is perfectly legal.

Before getting started, I want to quote the start of Patterico’s article, because his disclaimer applies equally to me:

I am not an immigration lawyer [nor indeed a lawyer of any kind] and do not claim any expertise in this area, but I’m capable of reading a statute and a legal argument, and I thought a post that analyzed the arguments… might be useful to people interested in the topic.

So, with my layman’s credentials established, what are the statutes in question here?

In 1952, Congress passed a law, the Immigration and Nationality Act, that contained a provision now enshrined in the US Code at 8 USC 1182(f). That provision says, in relevant part:

(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

This is, as you can see, an extraordinarily broad grant of unilateral power to the President to suspend immigration by anyone for any reason at any time. As we’ve seen, some people contend that the President has that power anyway, under Article II, I think that’s questionable; to suspend immigration, the President should receive authorization from Congress. But Congress gave the President that power anyway, in this very provision. Was that a good idea? Debatable. In the age of Trump? Definitely not. But it’s still the law. Plenty of bad ideas are still law.

Unsurprisingly, 1182(f) is the very provision President Trump’s EO relies on for its authority. The Executive Order (full text here) specifically proclaims, in Sec. 3(c), that entry from the seven involved countries “would be detrimental to the interests of the United States” in order to meet the precise verbal requirements of this statute, and it provides an explicity citation to 1182(f).

Opponents of the EO point to a later law, the Immigration and Naturalization Act of 1965, which ended the American quota-based immigration system that was set up originally under the Chinese Exclusion Act of 1882.* The INA includes this provision, enshrined in the US Code at 8 USC 1152 (a)(1)(A):

(1) Nondiscrimination

(a) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

The argument by EO opponents is that 8 USC 1152(a)(1)(A) repealed 8 USC 1182(f) by implication, because the two laws contradict and 1152(a)(1)(A) is the newer law. The President did have the authority to “ban” aliens from certain countries from 1952 to 1965, but does no longer, because 1152(a)(1)(A) bans discrimination by nationality and residence. The EO discriminates based on both, so, despite the broad grant of authority under 1182(f), it violates 1152(a)(1)(A) and is therefore illegal.

It’s an interesting argument. But there are a whole lot of problems with it:

(1) The two laws simply don’t conflict. § 1152(a)(1)(A) deals with visa issuance. § 1182(f) deals with entry. These are separate categories. A restriction placed by Congress on visa issuance does not place restrictions on the President’s power (also granted by Congress) to suspend entry. It’s entirely reasonable that the U.S. would, under some circumstances, continue to recognize visas and process visa applications for the residents of certain countries while temporarily suspending their actual right to enter the United States.

Importantly, that’s exactly what the EO does. The EO doesn’t revoke anybody’s visa. It suspends entry for 90 days, pending a review of visa requirements and reciprocity agreements. It is not plausible to read a temporary, 90-day suspension of entry rights, with no revocation of existing visas, as discrimination “in the issuance of visas”. Even an indefinite suspension of entry would only questionably interact with 1152(a)(1)(A)… and the only indefinite suspension in the EO is the Syrian refugee program, which all agree is not even covered by 1152(a)(1)(A). EO opponents’ arguments fail primarily because they rely on a supposed conflict between two laws that do not interact at all.

(2) Even if you could plausibly read the two laws to be in conflict, the argument that 1152(a)(1)(A) implicitly repeals 1182(f), in whole or in part, is likely to run aground in court, because it is not the only possible reading of the two laws. Courts hate implied repeal, because it creates deep uncertainty in the law as a whole. You never know for sure whether a statute on the books is in force or has been repealed by implication by some later statute you haven’t seen.

The general rule in courts is that, if a legislature intended to repeal or limit a law, they’d repeal or limit the law. If both laws are still on the books–and, in this case, they are–courts will do everything they can to reconcile them, favoring a reading where they do not conflict. Implied repeal is a last-resort method used only when laws absolutely contradict… and it more often arises when some state discovers they have on the books 1796 statute banning petticoats that everyone forgot about, not so much with major and well-known provisions of the U.S. Code. So courts are going to avoid the conflicted reading between 1182(f) and 1152(a)(1)(A) if at all possible. And rightly so: verba cum effectu accipienda sunt, folks. Since avoiding the conflicted reading is possible (more than possible, actually), 1182(f) stands as written, and the EO is legal.

(3) Even if you are, for some reason, convinced that the two statutes must be read as conflicting, 1152(a)(1)(A) still can’t be read as wholly repealing 1182(f). The most you can say is that 1152(a)(1)(A) creates a limitation: it prevents the President from suspending entry for classes of aliens on the sole basis of their nationality. But the rest of 1182(f) stands, and the President retains the authority to suspend entry for classes of aliens not covered by 1152(a)(1)(A). So, even if 1152(a)(1)(A) limits 1182(f) when it comes to nationality, 1182(f) still gives the President the right to suspend entry for, say, communists, or for people who were recently exposed to ebola. (People who have ebola are already excluded under §1182(a), but 1182(f) grants the President very broad discretion to respond to evolving health crises.)

Importantly, under 1182(f), the President may suspend entry for a class of aliens even if the class of aliens happens to bear a rationally-based relation to a nation or group of nations. That’s a dense sentence, so let me illustrate with an example. Suppose there were an ebola outbreak in Madagascar. It reaches epidemic proportions in Madagascar, causing a total breakdown in the social order, including the health care and records systems. However, being an island nation, the international community is able to contain the disease enough that it spread nowhere else. The President, fearing the spread of the infection because (with Madagascar’s government in chaos) we are unable to verify whether someone is carrying or has recently been exposed to the disease, issues a blanket proclamation under 1182(f), just like the one we suggested above: no one who has recently been in an area suffering from an ebola outbreak may enter the United States. Because of the way this breakout played out, however, this ban happens to be exactly equivalent to a ban on people from Madagascar. Nevertheless, it seems clear that the President is well within his rights, under 1182(f), to enact this suspension anyway. The ebola “ban”, while accidentally corresponding with nationality, has a rational basis quite apart from nationality. If the epidemic spreads beyond Madagascar to other regions, the President’s suspension will expand accordingly; if the epidemic in Madagascar ends, the suspension will evaporate on its own. Clearly, 1182(f) permits this, and 1152(a)(1)(A) poses no obstacle. It would be a strange thing indeed if 1152(a)(1)(A) forbade us to respond to an ebola epidemic in Madagascar (because it is a country), but suddenly permitted us to respond if the epidemic shrank to just a two or three provinces of Madagascar!

By the same token, the U.S. discriminated against visa applicants from Warsaw Pact countries during the Cold War, applying additional scrutiny and screening if not outright blocking entry. This was not because the U.S. had a problem with ethnic Russians or Latvian nationals, but because the U.S. had a problem with communist espionage, which tended to originate in those territories. I am unaware of any attempt to use 1152(a)(1)(A) to prevent enhanced scrutiny in these cases, because this was not discrimination on the basis of nationality.

Likewise, Trump’s EO does not suspend entry on the basis of nationality. It has a perfectly rational basis that has nothing to do with nationality: the EO simply suspends entry from areas that have been designated by Congress and the Secretary of Homeland Security as “areas of concern” due to an elevated risk from terrorist infiltration. The current list of “areas of concern” happens to include the entirety of seven countries: Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia, and so alien entry from those nations is temporarily suspended.

There is no prejudice against, say, Iraqis implied by this order. If Iraq is able to get its terrorism problem under control to the point where Congress agrees to remove them from that list, the EO will automatically cease to apply to them. If the reach of terrorist migration expands, so too will the list, and so too will the countries covered by the EO, whether that means temporarily barring aliens from Lebanon or from Canada. The terror threat the President is responding to is, legally speaking, no different from the ebola threat we considered above, and it is not a nationality.

Some have suggested this argument renders 1152(a)(1)(A) a “virtual nullity.” This is silly. 1152(a)(1)(A) was designed to bar the executive from decreeing, “The U.S. is revoking all Chinese visas, because we have too much Chinese labor, they are overwhelming our colleges with their smart kids, and their culture is too different from ours.” It has accomplished this goal. If President Trump issued an EO that said that or anything like it, it would be illegal. That this is unimaginable today is a sign of how completely 1152(a)(1)(A) and the rest of the 1965 Act has succeeded in overthrowing our old model of immigration based on racial quotas. That this law has succeeded as written, however, is not an excuse to adopt a new, radically broader meaning for it that bars the President from acting to protect the nation from actual foreign threats under 1182(f) just because those threats happen to coincide with somebody’s national borders.

The Cato Institute points at a 1995 case, Legal Assistance for Vietnamese Asylum Seekers v. Department of State, in which the government tried to allege a rational basis for discriminating in the issuance of visas on the basis of nationality and was swatted down by the D.C. Circuit Court of Appeals. But that case is clearly distinguishable from the Trump EO: in LAVAS v. State, the government was explicitly discriminating on the basis of nationality and claimed a rational basis for doing so. In this case, the issuance of visas is not implicated, but, even if it were, the government is claiming authority to discriminate against a class of immigrants on a rational basis that is established independent of and unrelated to nationality, which only coincides with a set of nations because of other decisions made by Congress and the Secretary of Homeland Security, and which could change to a different set of nations (or, indeed, non-nations) at any time. LAVAS has no bearing here.

(4) Even if you decide that all of the above is so much sophistry dedicated to hiding an act of discrimination on the sole basis of nationality (and I’d be awfully interested in hearing a legal argument that gets you there**), the argument that the EO is illegal still falls apart. It fell apart as soon as the EO’s opponent embraced the doctrine of implied repeal, way back at the beginning. See, the whole case against the 1952 law (§ 1182(f)) depends on saying that the 1965 law (§ 1152(a)(1)(A)) supersedes it and bars nationality-based discrimination.

But, in 2015, Congress passed a law (the Consolidated Appropriations Act) that expressly created discrimination in the visa issuance process for residents of Iraq and Syria (by name) and the other “countries of concern” (by incorporation). The text of this provision is at 8 USC 1187(a)(12). That this discrimination did not bar issuance of visas, but merely created new visa-based barriers to entry for residents of the countries in question, is immaterial, at least under the legal theory advanced by EO opponents: § 1187(a)(12) is discriminatory in the same way, and against the same targets, as the supposedly illegal EO itself. So if the 1965 law repealed the relevant parts of the 1952 law to make discrimination on the basis of nationality (even coincidentally) illegal, as the EO’s opponents contend, then the 2015 law surely repealed the relevant parts of the 1965 law, and discrimination on the basis of nationality — at least against those countries — is legal again!

Patterico attempts to distinguish 1187(a)(12) from the EO itself by saying that Congress has the authority to create an exception to its own rule in 1152(a)(1)(A), but the President does not have that authority under 1182(f). This argument would be much more persuasive if it were not prefaced by an extremely broad version of implied repeal. Patterico first contends (with 1152(a)(1)(A)) that a new provision can limit an unconnected existing provision of law and eviscerate the use of the existing provision–even when the use has a rational basis that is independent of the putatively repealing statute. If implied repeal is that broad, then I think it’s hard to keep 1152(a)(1)(A) alive in the face of the newer 1187(a)(12). I don’t doubt Patterico’s motives, but I also don’t think it’s consistent for his theory of implied repeal to be hugely, super-textually broad with respect to 1152(a)(1)(A) and then suddenly narrow with respect to 1187(a)(12).

In conclusion, in order to hold that the EO exceeds the President’s authority, you have to contort 1152(a)(1)(A) to void the President’s plainly-granted power under 1182(f), you have to somehow convince a court that this is the only possible interpretation of the two laws, you have to contort your interpretation of the EO to read it as discrimination on the sole basis of nationality rather than on the perfectly justifiable rational basis of preventing terrorist infiltration from areas (nations or not) where the threat is higher, and you have to preserve 1152(a)(1)(A) from being voided by 1187(a)(12) the same way you just had 1152(a)(1)(A) void 1182(f). There are legal theories that can do one of these, maybe two. (I disagree with those theories, but they exist.) But to do all four, I think you have to contradict yourself at some point.

The President’s power to limit immigration is absolutely sweeping. (His power to expand it, conversely, is severely limited.) People are free to say that President Trump’s EO is a stupid, terrible idea that should be rescinded, in whole or in part, immediately–and Congress, incidentally, could cancel the EO by passing a law that explicitly takes this power away from Trump–but saying that the EO is currently unlawful is, I think, mistaken. I base this judgment solely on the statutes involved, not any inferences about presidential power drawn from Article II or elsewhere.

For the time being, the EO’s enforcement has been partially stayed by multiple courts. This is a correct decision. Given the great harm this EO could inflict on plaintiffs, they are entitled to judicial review of the action taken against them. Judicial review takes time, and that requires a stay of the EO. However, I am confident that the EO will ultimately be upheld by the federal judiciary, because the statutory authorization for the President is clear.

Certainly the President’s claim to be able to enact this EO is infinitely stronger than President Obama’s claim to be able to enact his unlawful DACA/DAPA programs, yet many people protesting the EO were staunch defenders of President Obama’s way-less-legal executive actions. It is a serious and growing problem in our Republic that people increasingly believe that strongly disagreeing with a law or policy makes it “illegal” or “unconstitutional.” It does not. In a Republic, our duty is not to delegitimize bad laws; that places us on a short road to the end of the rule of law and the dawn of rule by men. Our duty, rather, is exercise our rights to vote and petition the government so that bad laws are changed.

As always, I welcome rebuttals from anyone–especially actual lawyers.

*SIDEBAR: if I were a Congressman, I would occasionally name my bills with the wrong year, just to mess with people. “Vote for the Internet Neutrality Act of 1741, fellow Congressthings!”

**Conor Friedersdorf has a good argument for why the voters should regard the EO as potentially racially motivated. He’s right. But his argument is political, not legal. Courts cannot read racial animus into an Executive Order without strong evidence from within the text that there is no other justification for it.

There is no doubt considerable truth to that. The March for Life is an annual comedy of news bias in which reporters routinely pay as much or more attention to a few dozen pro-choice counter-protesters than to the thousands and thousands of pro-lifers on the Mall… and that’s assuming they notice the March at all. Media crowd size estimates at the March for Life are routinely ridiculous lowballs (“hundreds”? seriously?). This despite the fact that the March for Life, even given conservative assumptions, is routinely the largest march on Washington of the year… and it happens every single year.

However, the crowd at the March for Life is almost certainly much smaller than the enormous (400,000+) estimates routinely given by its supporters. Let’s take a look.

Here’s a lovely image of the 2013 March (in their pre-March rally), courtesy of Iowans For Life:

This is a huge crowd, no question. That’s the Natural History Museum in back, and this rally appears to be as long as its entire facade — one full block of the National Mall, packed in with protesters.

One full block of the National Mall, as we’ve seen during the recent roaring debates about inaugural crowd sizes, works out to 50,000-ish people, emphasis on the “ish.”

Images from other years and other locations seem to generally support the “roughly one block of the National Mall” estimate.

Based on this evidence, it seems reasonable to estimate that the March for Life crowd size is between roughly 30,000 and 100,000 each year.

The March for Life itself must file a permit application each year, and this permit must list the organizers’ anticipated attendance. This year, as in past years, the March for Life officially estimated an attendance of 50,000 — broadly in line with my own estimates. (SOURCE: D.C. Protest Permit Applications, January 2017)

Moreover, the last time the National Parks Service estimated the size of a March for Life, in 1995, their estimate placed the March at about 45,000 attendees. (Congress withdrew NPS’s authority to make official protest estimates later that year, after an unrelated brouhaha in which NPS reported that Louis Farrakhan’s “Million Man March” did not, in fact, have a million men in it.) That estimate is now twenty years old, but, once again, it broadly lines up with our estimate of 50,000-ish, emphasis on the “ish”.

Some former marchers have privately suggested to me that this estimate is off-the-mark by a wide margin. One marcher, from the 2013/14 event, recalled on Reddit that, even though he was in the back half of the march both years, “from the hill of the Capitol, looking back, I saw a sea of people. Every block visible was completely full.” (I initially misunderstood his statement, which is reflected in my reply to him, but I have since familiarized myself with the route of the March in 2013/2014.)

In those years, the March ran from the Natural History Museum at 9th Street down Constitution Ave. to the Supreme Court building. There’s no way this Redditor was able to see that entire expanse, but let us suppose, for the sake of a generous estimate, that, at the peak of the March, the Marchers filled the entirety of Constitution Ave. from the March’s start at 9th Street, all the way down to First Street in front of the Supreme Court building.

Google Maps tells me that that distance is 1.1 miles, or 5808 feet (roughly). Constitution Ave.’s width varies, but the average over the route is about 8 lanes of traffic. Assuming 12-foot lanes, Constitution Ave. is 96 feet wide on average. That’s 557,568 ft², or 51,800 m².

We know that you can fit about 5 persons per square meter if they’re standing still. Any more and you risk their safety. Once they start moving, the dynamics become more complicated, and you end up with a limit of about 3 persons per square meter.

So, assuming the March for Life completely saturated its entire marching space, multiply the total area in meters by three persons per meter, and we end up with an estimated attendance of 155,400 in 2013 and 2014.

However, because of the generous assumptions granted in this estimate, this figure must be taken as an upper limit. Video evidence of these and other marches suggests that the March for Life fell well short of complete simultaneous saturation of all available streets. This points us back toward an estimate in the 50,000 – 100,000 range.

(For comparison, the Women’s March, generally estimated at about 500,000 strong, came close to saturating not just a lengthy stretch of Constitution Ave., but also a large portion of the Mall and a number of other side streets, as you can see in this photo taken by Lucas Jackson of Reuters and originally hosted by The Atlantic.)

I say none of this to pooh-pooh the March for Life. There is much that is immensely impressive about the March. Very few causes are able to bring out 50,000+ people to march on Washington. Even fewer have done so in the face of an apparently deliberate media blackout effort.  No other cause has been able to pull such an impressive spectacle together, against all odds, every single year. This year marks forty-four consecutive years of the March for Life, through all kinds of weather despite all kinds of political situations.

The March for Life is a totally non-violent protest against the greatest ongoing act of violence in the history of the world. The moral arc of the universe is long, but the March for Life will be remembered as its vanguard. 2017’s gathering, featuring the Vice President of the United States for the first time in the March’s history, promises to be an especially successful event, and I suspect the media will be forced to finally pay attention to the fact that, outside the media bubble, the majority of Americans want to enact major restrictions on abortion.

However, I am concerned that pro-life advocates are placing the March for Life on a pedestal from which it will inevitably be toppled. I would hate to see us get into a fight about crowd sizes that will only give the media a cheap reason to dismiss the objective enormity of our movement. So bear these two things in mind as we go into the March for Life tomorrow:

The 2017 Women’s March on Washington represented a paroxysm of one-off, anti-Trump frustration, which is unlikely to crystallize into the sort of sustained, successful resistance movement that the pro-life coalition has built. Nevertheless, it is almost certainly the case that the 2017 Women’s March on Washington was at least twice as large as any recent March for Life.

There is little reason to suspect that the March for Life will have even 200,000 attendees in Washington this year. Crowd estimates by organizers and supporters that are higher — often much higher — should be disregarded as wishful thinking… unless backed by solid evidence.

I am, as always, open to considering any and all other evidence about the size of the March for Life. Comments are open below.

For many of us, the most important issue at stake in last month’s election was the Supreme Court, where judges who primarily attempt to follow the Constitution’s text are currently outnumbered, 5-3, by judges who make other concerns the primary basis of their decisionmaking. This question has major policy implications, since textualism is totally incompatible with several key Supreme Court precedents made during the recent decades of anti-textualist supremacy — most notably the abortion rights guaranteed by Planned Parenthood v. Casey.

Once Trump enters office, he has promised to fill the late Justice Antonin Scalia’s chair with a fourth textualist, making the balance 5-4. Trump has also promised to ensure that any other vacancies are filled by constitutional textualists. (His opponent, Mrs. Clinton, promised litmus tests to ensure the exact opposite.) Whether Trump will keep that promise is a matter of some debate, which this post will not attempt to settle.

The anti-textualists on today’s Court are Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. If one of them leaves the Court, Trump will have at least the opportunity to appoint a textualist justice as a replacement. If he took that opportunity, the textualists would gain a 5-4 majority on the Supreme Court, giving them their first majority in at least several decades. (If a textualist like Clarence Thomas leaves the Court, and Trump replaces him with another textualist, it would not change the balance of power.) We can use the Social Security Actuarial Life Table to compute the approximate probability that an anti-textualist will vacate the Court during President Trump’s administration.

There are reasons to think this approximation is both too pessimistic and too optimistic. On the one hand, the Supreme Court justices have excellent health care, and are therefore possibly less likely to die than the average American as measured by the Social Security Administration. On the other hand, death is not the only way a Supreme Court justice can leave the Court — resignation near the end of one’s life is fairly common, and the SSA Life Table only captures the odds of death, not resignation. These figures should therefore be treated as ballpark estimates… which is better than nothing.

Here is the probability that President Trump will have had a chance to replace an anti-textualist on the Supreme Court by a given year, for each year of a potential eight-year administration.

Notable events on this timeline:

• Trump has a 34% chance at a court-swinging opportunity before the next federal election, the 2018 midterms. He will almost certainly be able to get any textualist nominee through the Republican Senate until then.

• There is a 60% chance that an anti-textualist will vacate the Court before the 2020 presidential election. Based on the almost impossibly difficult Senate map Democrats will face in the 2018 election, Republicans will more likely than not be able to maintain Senate control, despite the expected midterm backlash. They may even be able to expand their control, given the vulnerabilities of Heidi Heitkamp, Joe Donnelly, and Joe Manchin.

• If there is no anti-textualist vacancy by the 2020 presidential election, the future becomes difficult to predict. Incumbents are re-elected, more often than not, but Trump seems likely to be a bad president (sorry, Trump fans), and Senate Republicans face a brutal map of their own in 2020. If a Democrat wins the presidency, hopes of swinging the Court to textualism die in 2020. If Trump wins, but Republicans lose the Senate, the likelihood that a textualist can be confirmed falls dramatically. So, on balance, vacancies between 2020 and 2022 are unlikely to find a favorable environment for textualist replacements.  Nevertheless, there is a 79% of a vacancy arising between today and the 2022 midterms, and, if the environment is still favorable, Trump will still have the chance to reshape the Court.

• Who knows what the country will look like by 2022? About all we can say for sure is that Trump’s ability to nominate a Supreme Court justice will certainly end by the lame-duck session of 2024, as he is term-limited out of the presidency. So it is a big question mark whether Trump will have any power to fill Supreme Court vacancies with textualists in 2022-2024. However, if he does maintain that power throughout all 8 years of his administration, there is fully a 90% chance that he will have had at least one shot by the end of Year 8.

You can check my math on this Google Sheet.

So, there you go. The odds that President Trump, during his first term in office, will have the opportunity to fundamentally redirect the judicial branch back to its primary purpose — reading, interpreting, and applying the text of the law according to its original public meaning — are, basically, 50/50.  A coin toss.  If Trump wins a second term, the odds of a vacancy go up, but the odds he can get a textualist replacement through the Senate go down, and it still ends up looking like a coin toss.

There have been a lot of headlines this past month about the “nightmare” of a Trump presidency. But the thing that’s going to be keeping me up at night for the next four years is that coin toss.

After all, the whole argument for voting for one of the major-party candidates instead of for a third party is that only the major-party candidates are viable alternatives to one another. But, in a safe state, there is no viable alternative to the winner, so you can feel free to vote for anyone. Even if there were a dramatic upset, enough states would already have been carried by the underdog to ensure that candidate’s victory in the Electoral College with or without your state’s help. So, no matter what you do, your vote in a safe state fits the wide definition of a mathematically wasted vote. Therefore, in a safe state, you should just vote for the person you want most to be president, even if that person is a fringe third-party candidate.

So I have carefully watched the list of safe states grow and evolve throughout this election. Sadly, Minnesota never appeared on it. The full list is below.

To those of you who live in safe states, I recommend casting your vote for Mike Maturen of the American Solidarity Party. I have reservations about Maturen (see his often-great, occasionally idiotic platform here), but he is the only candidate besides Darrell Castle with a clear commitment to the protection of fetal life, and I believe Maturen’s party is a serious party with serious future prospects — unlike Castle’s Constitution Party, which is essentially a fringe debating society for conservative purists and always will be. Maturen is an officially registered write-in candidate in most states (full list here). This means that you have to write his name in, but your votes for him will be counted.

In safe states where Maturen is not a registered write-in option, I recommend writing in Evan McMullin.

In the handful of safe states that do not allow write-in votes, I recommend no vote for president. You should still show up to support candidates in down-ballot races.

Here is a full list of safe states — states where there is no plausible chance that your vote will have any impact on the outcome of the election — based on the latest projections from FiveThirtyEight (with my endorsement in parentheses):

• Alabama (Maturen)
• Arkansas (McMullin)
• California (Maturen)
• Connecticut (McMullin)
• District of Columbia (Maturen)
• Hawaii (no vote for president)
• Idaho (Maturen)
• Illinois (McMullin)
• Indiana (Maturen)
• Kansas (Maturen)
• Kentucky (Maturen)
• Louisiana (McMullin)
• Maryland (Maturen)
• Massachusetts (McMullin)
• Mississippi (no vote for president)
• Missouri (McMullin)
• Montana (McMullin)
• Nebraska (3rd District Only) (Maturen)
• New Jersey (Maturen)
• New York (Maturen)
• North Dakota (Maturen)
• Oklahoma (no vote for president)
• South Carolina (McMuffin)
• South Dakota (no vote for president)
• Tennessee (McMullin)
• Texas (Maturen)
• Washington State (Maturen)
• West Virginia (McMullin)
• Wyoming (Maturen)

Congratulations! Your votes don’t matter.* I envy you.

To the rest of you, I have bad news: your vote, plausibly, could decide the election.

This may surprise some of you, especially those of you who live in small, lightly-polled states that are traditionally hardcore Democratic strongholds (like Delaware, which is somehow on this list). There is an enormous amount of uncertainty in this election, because Trump/Clinton has mixed up the electoral and demographic maps in a big way, we just won’t know until Election Day how that shakes out in some states, and in the smallest states, your vote simply has a greater impact more than it does in the big states.

Here is a list of states where your vote matters. In parentheses next to each state, I have given how much your vote matters on a scale of 1-10 (1 is right on the edge of plausibly mattering, while 10 matters a lot). This rating is objective data based on FiveThirtyEight’s Voter Power Index:

• Alaska (5)
• Arizona (2)
• Colorado (5)
• Delaware (1)
• Florida (3)
• Georgia (1)
• Iowa (3)
• Maine (2)
• Michigan (4)
• Minnesota (2)
• Nebraska 1st District (1)
• Nebraska 2nd District (2)
• Nevada (7)
• New Hampshire (9)
• New Mexico (5)
• North Carolina (5)
• Ohio (2)
• Oregon (1)
• Pennsylvania (4)
• Rhode Island (2)
• Utah (*)
• Vermont (1)
• Virginia (2)
• Wisconsin (3)

Utah is a special case, because of Evan McMullin.  In Utah, I recommend voting for McMullin. He is looking like more of a longshot now, but, if he wins, the rewards could be rich.

The rest of us, however, are in a real pickle. How should we vote? That is the subject of my next post. But, spoilers: I’m not going to have any straight answers for you.

UPDATE: Clarified that the swing state race ratings are based on FiveThirtyEight data, not my own guesswork.  I took the 538 VPI, rescaled it so 7 = 10, then rounded to the nearest whole number.

*Admittedly, there are some possible worlds where your vote in these states ends up mattering, but it is profoundly unlikely — at a rough estimate, somewhere down in the “odds of being struck by lightning twice while simultaneously drowning” territory.

I’ve been swimming in Trump supporters arguing that the polls are “rigged” against their man. In every political cycle, there’s always some fringe that argues the polls are understating support for their candidate. In 2012, Republicans argued why Romney would beat his polls, and the Romney campaign itself truly believed this. In 2010 and 2014, as the midterm polls looked better and better (for Republicans), it was Democrats screaming about “oversampling.” I myself indulged in this back in 2012 (but hahahaha oh boy was I wrong).

But it’s worse this year. Trump supporters are being publicly bolstered by their own candidate, who is claiming the polls are “rigged” to anyone who will listen. This has energized a base that is already inclined to believe many less-than-reputable sources because of their (completely justified) distrust of the mainstream media and the incredibly, genuinely dishonest cottage industry of so-called “fact-checkers”. Unfortunately, the simple fact that the MSM is basically untrustworthy does not mean sites of the lunatic fringe (like ZeroHedge.com) suddenly become trustworthy.

They aren’t. This year as in previous years, there is no poll-rigging conspiracy.

Now, it is possible that the polls are wrong. This happens routinely. In fact, I think the media on the whole is greatly underestimating Trump’s chances. By looking at the polls and other factors, FiveThirtyEight’s model at this hour projects Trump with a 17% chance to win. That’s not good, but it’s not doomed, either: it’s the college basketball equivalent of the Marquette Warriors coming back from a 6-point deficit with 15 minutes of play left in the second half to defeat the racist Adolf Rupp. Or, for nerds: it’s the equivalent of rolling a crit on a 17-20/x2 weapon.*  It’s not likely, but it still happens pretty routinely.  Trump could win this election, and I wouldn’t even be surprised to see the polls proved wrong.  (I also would be unsurprised by Hillary beating her polls and bringing home a landslide victory of 12 points or more. Thing about polling error is it goes both ways.)

But what the polls aren’t is rigged.

Here are four false rigged-polling stories I’ve seen in just the past 24 hours:

(1) Monmouth is Collaborating with Clinton!!!

I have no idea where this one came from.

An outlet called PolitiForum made the following claim two weeks ago (under the headline “Wikileaks Proves that the Polls Are Rigged for Clinton”):

The latest batch of files and emails show that Monmouth University was in bed with the Clinton campaign to skew polling data

This claim was attached to this document (at right), which does indeed appear to show Patrick Murray of the Monmouth poll deliberately skewing the polls in order to bolster Hillary.

Problem is, the document is fake. There is no such document in the WikiLeaks archive. There couldn’t be: this document is dated September 2016, but the WikiLeaks archive (at least so far) only goes through March 2016. The headers on this document are fairly clear photoshop jobs, given the giant lines in the page and the bizarre use of a mission-statement image seemingly clipped from the Monmouth website in the header (where no email could print an image). And the rest of the document is just absurd, exactly what you’d expect a Trump supporter with a heavy fever to dream up, from the misspelling of “embedded” to the “lying harpy” line in the summary. “Favored are liberal arts degrees, and, especially, sociology. See attached call files.” Seriously? Does anyone think Monmouth has call files of sociology majors?

This document is a clear fake that is not present in the WikiLeaks archives as claimed, but which somebody pretty clearly photoshopped up instead. Thousands of people are falling for it anyway. I guess I can’t blame them, since Dan Rather did the same thing. But it’s still wrong.

(2) John Podesta Rigged ALL THE POLLS with “oversampling!”

There’s a lot of good dirt in the WikiLeaks dumps, so it’s depressing that I have to focus my attention on this non-story for even a minute while the real scandals go unaddressed.

Any number of outlets reported on this email from John Podesta, with Rush Limbaugh’s claims being typical:

So here’s verbatim from the Podesta email. This is going to Clinton campaign staffers and others who are associated with the Hillary-for-president effort. “I also want to get your Atlas folks to recommend oversamples for our polling before we start in February. By market, regions, etc. I want to get this all compiled into one set of recommendations so we can maximize what we get out of our media polling.”

Now, I infer from this that we’re not talking about their internal polls. They are attempting here to set out guidelines that they want the media to follow in order to procure and produce certain sets of data. The email includes, this Podesta email “includes a handy, 37-page guide with the following poll-rigging recommendations. …

“For Florida, the report recommends ‘consistently monitoring’ samples to makes sure they’re ‘not too old’ and ‘has enough African American and Hispanic voters.’ Meanwhile, ‘independent’ voters in Tampa and Orlando are apparently more dem friendly so the report suggests filling up independent quotas in those cities first.”

This whole email, if I’m understanding this, is actually a manual for pollsters on how to produce the results Podesta wants.

…And even with these guidelines and suggestions from Podesta on how to rig the polls, what we have to believe is that all of the people that run these polls, ABC/Washington Post, NBC/Wall Street Journal, CBS/New York Times, Monmouth College, you name it, every one of these polls waits for guidelines on who to sample from the Hillary Clinton campaign.

Oi, where do I even start with this one?

Well, let’s start at the very beginning (a very good place to start):

(1) this email is dated January 18, 2008. It has less than nothing to do with this election. Even if there were any wrongdoing here (there isn’t), then it would be Barack Obama who should be frosty about it, because that was who Clinton was running against at the time.

(2) the ATLAS project was an internal polling project (by Democrats, for Democrats), whose data was intended for use in setting up campaign offices and lit drops in the most effective areas. You can see that in another WikiLeaks email, and also by visiting the ATLAS website (which clearly states its progressive loyalties). No ATLAS-originated polls were ever published in the media. So, if there was any attempt to manipulate the results, the only people hurt by it would be the Clinton campaign, not us out in the public. (This sometimes happens, to be fair — as we discussed at the start of this article, Romney was very guilty of bad internal polling in 2012.) They were sampling their own base more thoroughly in order to create a more accurate internal picture of the race for their own internal GOTV operations.

(3) Yes, I said a “more accurate” picture of the race, not a skewed one. “Oversampling” simply does not mean what the pro-Trump press (in classic conspiracy lunatic fashion) arbitrarily decided it meant. “Oversampling” is when you do extra polling of a subgroup in order to ensure that you have the most accurate possible picture of that group.

So, if you’re running a Democratic primary get-out-the-vote campaign, you are going to want a crystal-clear picture of the Latino and African-American electorate because those are your base voters. So you go out and do some extra sampling of those groups. Before the poll is published, the extra samples are weighted back into the overall sample proportionately — so, if you polled a bunch of extra Latino voters for your subgroup oversample, each Latino voter is counted less in the topline results, so that they aren’t overrepresented in the final result. (Put another way: if the overall Black population is 10%, then it doesn’t matter if there are 5 Black voters in your 100-voter sample or 50: they will still be discounted based on the demographic weight so that they count for 10% overall.) Oversampling is essentially conducting an extra poll within a poll, it is a completely statistically valid technique, and it can only enhance the polls overall accuracy.

The Atlantic just published a good article to debunk this ridiculous story and further explain the technique behind oversampling. But you can ask any pollster — including Trump-favorable polls like Rasmussen or IBD/TIPP or LAT/Dornsife — and they will tell you the same thing, because “oversampling” is a well-established statistical practice that only increases the accuracy, especially of subgroup measurements.

(3) Monmouth is lying about their weights!!!

This one is a badly mistaken tweet by somebody named @GOUSAAMER114 that the nutbirds at The Conservative Treehouse (motto: “If Salon.com were pro-Trump”) chose to magnify into a bona fide conspiracy theory. (Poor Monmouth! The best pollsters are the ones getting attacked the worst in this election.)

The claim:

Today, Monmouth via Patrick Murray presents a presidential poll of Ohio voters. The actual raw data (pdf available here – see pg, 6 and 7) showed Donald Trump with a lead in the result; however, Murray changed the data through weighting to show Hillary Clinton with a lead… It’s obvious Murray didn’t expect to be called out on it – because when confronted with what he did, pollster Patrick Murray flat out lied… You can do the math yourself and see that no “weighting” was done by “region, age, race, or gender” only by party ID.

Sounds damning, but what the Treehouse says is there simply isn’t.

Yes, Monmouth gives unweighted numbers about certain categories of interest. This is useful in demonstrating, for example, that you have more than one black person in your poll — among other things. (The LA Times poll was famously thrown off by a point or so because of a single 19-year-old Black voter in Chicago in its tracking group who supported Trump.)

Then they say they weighted by other demographic information they’d collected and published those results. It would be unusual for them to post all of the crosstabs necessary for us to mathematically prove that they weighted correctly. They didn’t, so I’ve no idea how Treehouse “did the math” as they invite us to do. (Any math they did do was wrong, because we lack, at the very least, the region data required to compute the weighting.) So we have no reason to believe that the weighting was done improperly. True, we can’t prove it was done properly, either, but let’s consider what we’re talking about when we accuse them (with no evidence whatsoever) of “rigging”:

This is an extremely reputable poll that has been doing the same thing for many years. They have been so accurate using this methodology that they have an expected bias of around half a percentage point in the average election (which is very impressive). Their reputation and (ultimately) their livelihoods would be threatened by any attempt to weight the poll inaccurately. Their partisan ID results are, moreover, actually pretty friendly to Republicans compared to the current national average. (I don’t have current figures on Ohio, where this poll was conducted, but I do know that, four years ago, the party ID gap was quite a bit worse for Ohio Republicans.)

The Conservative Treehouse didn’t “catch” Monmouth in a lie; they caught “caught” Monmouth doing exactly the same thing Monmouth was doing in March when Monmouth was telling us about Trump’s upcoming sweeping primary victories in Maryland and the Northeast and the Treehouse was delightedly citing Monmouth’s work.

(4) [Insert any pollster] has a sampling bias toward Democrats!!!

This is a long-standing and universal complaint by partisans who are losing in the polls. I engaged in a heavily qualified version of it in 2012, and I’m really glad I qualified it, because I was completely wrong. This year’s edition is even more virulent.

The gist of the complaint is, “My party typically has better turnout than your poll is predicting, therefore your poll is wrong.” Stated that way, the explanation is obvious: the reason the poll predicts lower turnout is because your party is about to have lower-than-typical turnout in this election. However, conspiracy theorists looking for an excuse to ignore bad poll results have a way of twisting themselves up in knots about this. Here’s a typical example, from ZeroHedge (motto: “correct capitalization and punctuation are tools of neoconservative oppression!!!”) about the recent ABC News poll showing a 12-point lead for Clinton:

Of course, like many of the recent polls from the likes of Reuters, ABC and The Washington Post, something curious emerges when you look just beneath the surface of the headline 12-point lead:

“METHODOLOGY – This ABC News poll was conducted by landline and cellular telephone Oct. 20-22, 2016, in English and Spanish, among a random national sample of 874 likely voters. Results have a margin of sampling error of 3.5 points, including the design effect. Partisan divisions are 36-27-31 percent, Democrats – Republicans – Independents.”

As we’ve pointed out numerous times in the past, in response to Reuters’ efforts to “tweak” their polls, per the The Pew Research Center, at least since 1992, democrats have never enjoyed a 9-point registration gap despite the folks at ABC and The Washington Post somehow convincing themselves it was a reasonable margin.

While it’s true that Democrats have never before enjoyed a 9-point gap in partisan self-identification (aka “party ID”) on Election Day, Mr. Trump seems poised to overthrow that historical norm as he has so many others. (In 2012, I said much the same thing: the biggest Democratic turnout advantage in history was a D+7 win in 2008, and surely they couldn’t match that in 2012, could they? But they did. Historical precedents have a funny way of falling apart the moment you start to depend on them.)

The ABC News poll is indeed weighted by party ID, with an advantage of D+9. However, as explained in its full methodology, the party ID weighting is determined, not by ABC news analysts taking a wild stab at it (as ZeroHedge seems to think), but by other polling. This other polling, for obvious reasons, is not weighted by any partisan factors. You conduct the party ID poll (often with “all adults” instead of a likely voter screen), weight by non-partisan demographics, get your party ID weights from the results, then you go poll the election with just likely voters and apply your weights. This is a typical method for weighting by partisan ID, and it has proved reliable in every recent election.

We haven’t yet seen the partisan ID numbers from ABC’s most cutting-edge polling, but we know that it conducted an all-adults poll not quite two weeks ago… and that poll showed a Democratic party ID advantage of D+8. Bear in mind that, two weeks ago, Trump was doing a bit better, so a D+9 advantage should not be the least surprising.

ABC’s D+9 result is broadly in line with recent polling consensus:

Selzer & Co (best pollster in the country) showed D+6 on October 17.

Ipsos/Reuters showed D+14 on October 17th.

PRRI showed D+7, also on October 17th.

NBC/Wall Street Journal showed D+9 on Oct. 13th.

It’s possible there’s been some tightening here in recent days: NBC/SurveyMonkey have done two polls this week, showing D+3 and D+5, respectively, and Fox had an October 17th poll showing D+4. But that could be noise. Or the ABC News result could be a bit of noise. But what it wasn’t is rigged.

None of the polls are rigged against Donald Trump. Donald Trump simply isn’t doing very well. Conservatism (insofar as it isn’t dead) needs to recognize that, while there are a huge number of different ways to do polls, and while there is a strong liberal media bias (in many ways against Trump), the polls that show Trump losing have been conducted correctly, in scientifically valid ways.

I hope this post doesn’t need to be updated.

*You took Improved Critical on your rapier, nice job. These D&D 3.0 references don’t date me yet, do they?

This post was updated on 9 October 2016. Updates are at the bottom.

Since winning the nomination, Donald J. Trump has done all of the following: insulted the family of a man who died in service of his country; kicked a baby out of a rally; failed to rebut evidence that he was a draft dodger; embraced the opponent of the sitting Republican Speaker of the House while refusing to endorse the 2008 GOP nominee for president; attacked fire marshals at his rallies as “political” for enforcing occupancy limits; driven his staff and the RNC to despair; and denied the (very real) Russian conquest of Crimea.

I’m sorry, did I say, “since winning the nomination”?  Actually, that was just the past 36 hours (as of this writing). By the time you read this, no doubt Trump will have disqualified himself from the nuclear suitcase many more times – and it’s not like Trump was an angel before August, either.  Trump should not be the Republican nominee for president.  He should not even be the Republican nominee for Secretary of Transportation – 13^th in the line of succession is far too close for a man of his low character.

Fortunately, he doesn’t need to be.

The More You Tighten Your Grip…

Just a few weeks ago, at the Republican National Convention, the Trump campaign and the Republican National Committee crushed an attempt to stop Trump and reform the rules of the RNC.  As a result, the RNC was able to pass a renewal of Rule 12, the infamous power-grab that seized control of the party from the grassroots.

Historically, the Republican Party was governed by the delegates to the national convention, who would debate and pass rules for the party organization. The RNC existed and operated at the pleasure of the delegates. Rule 12 turned that on its head: yes, the convention still meets every four years, but Rule 12 allows the RNC to amend the rules of the Republican Party between conventions without input from the delegates.  As was pointed out at the time, this permits the RNC to completely disregard the results of national conventions: if the convention passes a measure the RNC doesn’t like, the RNC can simply pass a new rule at the next meeting to undo the convention’s decisions.

There was hope this year that Rule 12 would be removed as part of a conservative reform package spearheaded by Morton Blackwell and Sen. Mike Lee.  However, the Trump campaign closely coordinated with the RNC to destroy that package, bragging about their victory afterward on Twitter.

It would be poetic justice if the Trump campaign were hoisted on its own petard.

…The More Star Systems Will Slip Through Your Fingers.

No presidential nominee has ever died on the campaign trail before, but it could happen.  William Henry Harrison could have caught pnuemonia in October.  In 1912, the Republican vice-presidential candidate, James Sherman, actually did die less than a week before the election.  Both major parties have rules governing what to do if that happens.  The Republican version is called “Rule 9: Filling Vacancies in Nominations”.  It has not changed during the 2016 cycle.  This is what it says:

(a) The Republican National Committee is hereby authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise of the Republican candidate for President of the United States or the Republican candidate for Vice President of the United States, as nominated by the national convention, or the Republican National Committee may reconvene the national convention for the purpose of filling any such vacancies.

(b) In voting under this rule, the Republican National Committee members representing any state shall be entitled to cast the same number of votes as said state was entitled to cast at the national convention.

(c) In the event that the members of the Republican National Committee from any state shall not be in agreement in the casting of votes hereunder, the votes of such state shall be divided equally, including fractional votes, among the members of the Republican National Committee present or voting by proxy.

(d) No candidate shall be chosen to fill any such vacancy except upon receiving a majority of the votes entitled to be cast in the election.

Many commentators are hoping that Mr. Trump will drop out of the race, creating a vacancy for the RNC to fill.

Some rather more daring commentators believe that the RNC is already empowered, by simple majority vote, to declare Donald Trump’s candidacy vacated by “death, declination, or otherwise” (strong emphasis on the “otherwise”) thanks to his shameful misbehavior on the campaign trail. Personally, I don’t believe that a unilateral declaration of vacancy by the Republican National Committee qualifies as a “vacancy” within the ordinary English meaning of the word.  Of course, the RNC and the Trump campaign have never allowed the actual text of the rules to stop them from doing whatever they want, rules of order be damned, so maybe the RNC will do it anyway.  However, I don’t believe that Donald Trump should be stripped of the nomination by cheating. That would be unfair to Mr. Trump and his many enthusiastic supporters.

Instead, Trump should be stripped of the nomination fair and square, by a clear action under Rule 12 – the very same Rule 12 Mr. Trump himself has so fiercely defended.  Rule 12 provides:

The Republican National Committee may, by three-fourths (3/4) vote of its entire membership, amend Rule Nos. 1-11 and 13-25. Any such amendment shall be considered by the Republican National Committee only if it was passed by a majority vote of the Standing Committee on Rules after having been submitted in writing at least ten (10) days in advance of its consideration by the Republican National Committee and shall take effect thirty (30) days after adoption. No such amendment shall be adopted after September 30, 2018.

This sets out a clear, incontrovertibly legal mechanism for stripping Trump of the nomination:

1. Any member may propose an amendment to Rule 9 and submit it in writing to the Standing Committee on Rules. It would contain a simple morals clause, like that contained in many employee contracts. It could read something like this:

Rule 9 is amended by the addition of a section (e), which reads as follows:

(e) If the Republican nominee for President or Vice-President commits an act of moral turpitude which is shocking to the nation’s sense of decency, the full Republican National Committee may, by three-fourths (3/4) vote of its entire membership, vacate that nomination.

2. After waiting ten days, the Standing Committee on Rules must vote to approve the amendment by a majority vote.

3. The Republican National Committee may then immediately vote to approve the amendment by a three-fourths supermajority.

4. Thirty days later, the new clause goes into effect. The Republican National Committee may meet at that time. and, by a three-fourths supermajority, terminate the misbegotten candidacy of Donald J. Trump for his many acts of moral turpitude – his fight with the Khan family being only the most prominent.

5. The RNC would then be free to immediately select a new candidate under the terms of Rule 9.

6. The new Republican nominee, whoever it is, would easily defeat Hillary Clinton, the least popular nominee in history (except for Donald Trump). That’s not wishful thinking: almost any Republican, from John Kasich to Marco Rubio to Ted Cruz — or even David French! — could beat Mrs. Clinton. This is the most winnable election in history, and Trump is doing the impossible by losing it.

Just Crazy Enough to Work

By the time the new nominee is selected, forty days after the initial submission of the amendment, many states will have locked in their ballots for the November election.  Trump’s name will still appear on those ballots.  However, this is hardly the first time in American history such a thing has happened. In Minnesota’s 2002 Senate race, Sen. Paul Wellstone died in a plane accident less than two weeks before the election. He was replaced by Walter Mondale, and, although the ballots all said “Wellstone,” Mondale would have gone to Washington had he won.  More notoriously, in 2000, Sen. John Ashcroft actually lost an election to his deceased opponent, Mel Carnahan. (Carnahan’s widow, Jean, served in his place.)

Trump, for his part, will be unable to mount an independent “spoiler” campaign, precisely because those ballot deadlines would have passed him by. Though he could mount a court challenge or write-in campaign, he would have little time and no help from the RNC apparatus that he depends on for his ground game. Meanwhile, the Republican electorate has already demonstrated that it will unify behind literally anyone in order to stop Hillary – after all, Republican voters were willing to unify behind Trump.  The Republican nominee would thus enjoy a clear path to a November 8^th victory.

Presidents, of course, are actually elected by the members of the electoral college.  The members of the electoral college are selected by the winning political party in each state. Generally speaking, they are both pledged by their party and bound by state law to cast their electoral vote for the candidate of the party that appointed them – regardless of which candidate technically appeared on the ballot.  (A few states appear to legally bind them to the candidate on the ballot, but all such laws are likely unconstitutional.)  Since electors are well-vetted partisan loyalists anyway, they can generally be counted on to support the party’s nominee, regardless of pledge or legal constraint.  Certainly no Republican elector would ever vote for Hillary Clinton, and many of them already disdain Mr. Trump.  Therefore, we could reasonably expect all Republican electors to vote for the party’s new nominee, whomever that may be.

Even if some faithless electors still cast their votes for Trump, this would not change the final outcome of the election: even if there were enough faithless electors to deny the new nominee a majority in the electoral college, all this would do is throw the election to the House of Representatives, where the entrenched GOP majority would easily put the new nominee into the Oval Office.

Indeed, thanks to the electoral college, it would seem that the Republicans do not even need to complete the entire re-nomination process by Election Day.  As long as the Republican nominee has been formally changed by the time the electoral college meets (December 19, 2016), Republican electors can be relied upon to vote for the new Republican nominee.  That means the deadline for starting this process is technically November 9th… although, if Trump is still the nominee on election day, it is highly probable that Hillary Clinton will be elected and this will all be moot.  The sooner we start the process of vacating the nomination, the better.

In short: despite some minor complications, if we replace Trump, our new nominee will be the next President of the United States.

The Fallout

This is hardly the ideal mechanism for defeating Hillary Clinton. It would have been much better to nominate a good candidate back at the convention. A last-minute switch like this would make the primaries a farce (though they already are), shatter the Republican Party (though this has already happened), and create a major political hubbub.  These are very bad things.

But the election of Hillary Clinton would, without serious question, destroy the American experiment forever with a single appointment to the Supreme Court. The election of Donald Trump, the misogynist draft-dodging anti-veteran Russian pawn, would not be much better for America – and is appearing less and less likely anyway, as Americans wake up to Trump’s moral turpitude.

The Republican National Committee, then, has the power to stop Trump. They now face a simple choice: save their party, or save their country.

Guess which one they’re going to pick.

UPDATE 9 October 2016:

The idea of vacating the Republican nomination has suddenly picked up steam in the wake of Trump’s favorable comments about sexual assault, and that has led to some extra traffic to this blog.  I want to add three thoughts to what I said above back in August:

1. If only we’d done this ten days ago…

The process I sketched out above takes forty days to complete. November 8th — the day when voters in each state cast ballots to elect a partisan slate of electors to the electoral college — is only thirty days away.  This means that, even if the appropriate motion were filed with the Rules Committee right this moment, it would still take until ten days after Election Day for Donald Trump to be formally stripped of the nomination.  It would have been much, much easier to vacate the nomination if Pussygate had happened on, say, September 26th.

This doesn’t mean the process to vacate the nomination is impossible. Heck, given Trump’s free-fall in the polls since the first debate (he is on track for a landslide defeat), forcibly replacing him is still probably the RNC’s last, best hope for winning this election. But the late timing does make the process a lot trickier: you would, first and foremost, have to convince voters to cast ballots for Trump with nothing but a promise that Trump will soon stop being the nominee.

This may be a bridge too far.  Voters have a hard time remembering who the vice-presidential nominee is, still less how their vote connects to the electoral college. It is for this reason that, when I spoke to Gwynn Guilford for her article this morning, I was fairly pessimistic. I still think this is a possible path to a Republican in the White House, not just a symbolic repudiation, but, as I told her, it is… tricky.

2. Can we speed this up by suspending the rules?

Late in the day, Politico reported that the RNC is actively looking into this option. Well, guys, welcome aboard.  Better late than never, right?

Politico’s piece also contained this juicy tidbit, which caused my jaw to drop:

One option might be invoking Rule 12 — which gives the party the authority to amend its own rules — but that would also be problematic because it requires at least 40 days to take effect. However, the committee — which operates under Roberts Rules of Order — also appears to have the authority to suspend those restrictions with a two-thirds vote.

Well, heavens to Betsy, I think they might just be onto something!

Let’s go back to our trusty copy of the Republican Party Rules.  Rule 7(a) provides:

(a) The current authorized edition of Robert’s Rules of Order: Newly Revised (“Robert’s Rules of Order”) shall govern in all meetings of the Republican National Committee and its committees insofar as they are applicable and not inconsistent with these rules.

I’m a little surprised I never thought of this myself! Robert’s Rules of Order allows a body, such as the RNC, to “suspend the rules” by a supermajority vote.  Suspending the rules allows the RNC to clear procedural obstacles that are getting in the way of doing business.  If you’ve ever been at a political convention at any level, you have almost certainly participated in a parliamentary action to suspend the rules. You can’t use rules suspension to grant yourself additional powers or violate your organizational constitution and by-laws, so the RNC couldn’t just vote to suspend the rules and declare that Mike Pence is the new GOP nominee.

However, you can use rules suspension to clear procedural roadblocks.  And what’s the biggest obstacle to replacing Trump right now?  That darned thirty-day waiting period mandated by Rule 12 before any rules changes passed by the RNC can take effect.

It may be possible, under Robert’s Rules, for the RNC to suspend that waiting period.  As I read Robert’s, it would require a two-thirds majority vote — which is actually easier than changing the rules in the first place (which requires a three-quarters majority).

If this is correct, then the RNC could meet as soon as October 19th, vote to amend Rule 12 as I described in my original post, and then attempt to proceed immediately to a vote on vacating the nomination. This would be ruled out-of-order, thanks to the 30-day waiting period. Any RNC member could then put forward a motion to suspend the rules and proceed directly to the vote on vacating the nomination. With two-thirds support, the motion would carry, the vote to vacate would be held… and Donald Trump would cease to be the Republican nominee for President of the United States by the morning of October 20th.

However, it might not be correct.  I am not up-to-speed on the vagaries of rules-suspension motions, and am seeking the advice of an experienced parliamentarian as to whether the waiting period is considered a parliamentary rule suspendable under Robert’s Rules.  (It could be seen as a by-law, thus not suspendable.)  I will keep you readers posted.

3. Trust nothing you hear.

Jim Bopp, a noted RNC lawyer, is running around telling everyone who will listen that this whole thing is impossible.  Jim Bopp is a warrior for life and free speech, whose credentials, experience, and genuinely wonderful accomplishments eclipse my own.

He is also completely out to lunch.  Cozy with Trump since Day One, Bopp is editing his own reality to only see the parts that support Trump.

Does that sound familiar?  It should: Jim Bopp was the star of my 2010 blog series, Why Personhood is Right for Wisconsin, and, as I showed at great length there, Bopp twists and sometimes outright lies about the law in order to bolster his own sheerly political conclusions. He didn’t think Personhood was an electoral winner, so he invented a reality in which Personhood endangered other pro-life achievements in Wisconsin, regardless of the actual law of Wisconsin.  He thinks Trump is an electoral winner, so he’s inventing a reality in which Trump is the only possible GOP nominee, regardless of the Rules of the Republican Party he himself helped craft.

EDITOR’S NOTE: If you want to see this happen, you should share this article on social media.  I love each and every one of you, my readers, but none of you are voting members of the Republican National Committee.  Nobody who has the power to vacate the nomination will consider it unless they see it, through social sharing.  And they probably won’t anyway.  But we should still try.

“If Trump wins every single delegate of the night, that’s unfortunate but not entirely unexpected. Tonight’s tactical voting is to minimize the damage, not to actually make any gains. Indiana is the race that matters, and they’re on May 3rd.”

–Me, April 26th

“The time to panic is on May 2nd, if Kasich is still in the race the night before the pivotal Indiana primary and splitting the anti-Trump vote.  That could easily hand Trump the nomination.”

–Me, April 19th

“Thus, I expect Trump to win virtually all the delegates in those primaries; so do most analysts. This wouldn’t be all that bad, either, as long as it drives Kasich definitively out of the race before the pivotal (and very competitive) Indiana contest on May 3rd.”

–Me, April 6th

“As long as Trump is denied delegates in Wisconsin, Indiana, and most of California, and Cruz takes the states he’s already expected to take (South Dakota, Nebraska, Montana, etc.), Trump will not have 1237 bound delegates going into the convention… even with the whole Northeast under his belt.”

–Me, March 25th

“By this point, if Rubio and Cruz are both still in the race, still splitting their vote against a 40% popular Trump, it’s probably too late to stop Trump.”

–Me, February 27th, speaking about a field that remains divided against Trump through Indiana. I had the identity of the spoiler wrong — it ended up being Kasich — but not the importance of Indiana.

There are ten contests left in the 2016 GOP primary season, but two states matter more than all the rest: Indiana, which votes May 3rd, and California, which votes June 7th.

Why these states? They both award large numbers of bound delegates (which Donald Trump desperately needs and which his opponents desperately need to deny him). More importantly, both states award their delegates on a winner-take-nearly-all basis (“winner-take-all by district and statewide”, if you want to get technical), so the winner can really run up the delegate count even with a narrow plurality win.  Most importantly, both states appear to be competitive, unlike the “safe” Trump states (West Virginia, New Jersey), the “safe” Cruz states (South Dakota, Nebraska), and the “safe” Kasich states (hahahahaha). Most simulations that show Trump winning the 1,237 delegates he needs to secure the Republican nomination on the first convention ballot have him winning most delegates in Indiana; virtually all realistic simulations that lead to a contested convention have Trump losing those delegates to Ted Cruz.  Play with the numbers yourself over at 538, taking note of the underlying demographics of each remaining state, which have been a surprisingly useful predictor of Trump’s vote share so far (especially in the absence of much polling), and you’ll soon recognize what this blog first noted in February: if we can’t unite to stop Trump by Indiana, then it’s probably too late to stop Trump.

Indiana is thus a do-or-die state for anti-Trump forces — the first time we’ve face that stark situation… and, possibly, if we lose there, the last time, too.

Once you understand the importance of Indiana, many of the events of the past few days make a great deal of sense:

The Kasich-Cruz Truce

If Donald Trump becomes the GOP nominee, there is every chance that John Kasich will be the single person most responsible for it. Kasich has steadfastly refused to follow Marco Rubio and honorably depart a race he cannot win (even at a contested convention), and his division of the anti-Trump vote could easily deliver not just Indiana, but otherwise-strong Cruz states like South Dakota and Montana, into Trump’s waiting hands. This would directly cause Trump to win the nomination. Unfortunately, even Kasich’s humiliating, devastating defeat on his “home turf,” the Northeast Acela Corridor (in which he failed to win even a single congressional district), has not driven the arrogant, delusional son-of-a-mailman out of the race.

Cruz, who has proved throughout the year to be an excellent tactician, is thus forced to face what I literally termed a “nightmare scenario” back in February: a three-person race going into Indiana, with Trump holding 40% of the vote and his opponents splitting the 60% anti-Trump vote and thus losing. It was imperative that Cruz mitigate that threat, or face likely total defeat.

Kasich faces the same imperative, with the same stakes, but, as with so many imperatives, the Kasich campaign is ignoring it.  Perhaps because the Kasich campaign already has virtually no chance at winning the nomination (thus has less to lose), or perhaps because the Kasich campaign is simply bad at math, Kasich has campaigned in Indiana even though doing so decreased the chances of Kasich actually winning the nomination. (Kasich needs a contested convention to have even a slim shot, and, if Trump wins Indiana, there’s very likely no contested convention. Kasich needs Cruz to win Indiana as much as Cruz does.) In essence, Kasich strapped on a suicide bomb vest and gave Cruz a great big hug.

Thus, on Monday, Cruz and Kasich announced their “truce.” Kasich agreed to pull out of Indiana. In exchange, however, Cruz ceded to Kasich New Mexico and Oregon. Combined, the two states have 51 delegates to Indiana’s 57, which makes them appear about equal. However, they are far less important than Indiana, since they award delegates proportionally. Kasich gains very little of practical value from this exchange. As far as I can see, Kasich’s main gain here is legitimacy: Cruz had to publicly deal with Kasich as an equal, despite the fact that Kasich today has fewer delegates (and fewer victories) than Rubio, who dropped out a month ago.

Cruz, for his part, cannot possibly have desired this, which explains why he put it off so long. For one, granting Kasich a clear shot in a couple of states gives Kasich more reason to stay in the race longer, which is just the opposite of what Camp Cruz (and any serious anti-Trump campaigners) want right now. For two, the overt collaboration between the two candidates feeds directly into Trump’s “the system is rigged” narrative, which had already been paying dividends for Trump before the Cruz-Kasich armistice was announced. There is no question that making a public pact with Kasich damages Cruz, who is in no position to take on damage right now.

But it also clears Kasich out of Indiana, consolidating the anti-Trump voted behind Cruz. This is so essential to defeating Trump that Cruz really had no choice but to take it or watch his campaign die in the Hoosier State. When a suicide bomber is hugging you, your only options are to give in to his demands or die stubborn.

Unfortunately, within about two hours after the pact was announced, Kasich himself sabotaged it, saying that his supporters in Indiana ought to vote for him anyway. This, of course, defeats the whole purpose of the alliance, which was to stop Trump in (hopefully) all three states but (at least) Indiana. It is also the opposite of what the infinitely more honorable Marco Rubio said prior to March 15th, when he instructed his supporters in Ohio to support Kasich.  (Then, too, Kasich refused to say the same to his supporters in Florida.) After Kasich’s public retreat from the brand-new alliance, the Cruz campaign immediately fired back by saying their supporters in Oregon and New Mexico should still vote for Cruz, and both campaigns are now pretending that this whole truce was only about how they would “deploy their resources” (which makes no tactical sense unless the goal is to change vote totals!). It is unclear who exactly is to blame for this, but the truce has, for the most part, failed, and all the public evidence, anyway, points to Kasich as the culprit.

So Cruz ended up with a very bad situation here: he was damaged by making the deal, and the benefit he sought from the deal — assistance from Kasich in Indiana — has largely failed to materialize. (Some of Kasich’s Indiana supporters may defect to Cruz to stop Trump anyway, though Kasich himself has been little help in that.) It was the right decision under the circumstances, and I would have made it in his position, but it was always an ugly choice, and it’s playing out worse than expected.

The silver lining: Cruz and Kasich announced their arrangement the Sunday before the April 26th delegate massacre. Cruz knew that massacre was coming, and knew Trump’s Northeastern triumph would knock the Cruz/Kasich collaboration out of the news cycle within 36 hours of its announcement, minimizing the amount of damage it could do to him among the public. That’s exactly what happened: Cruz is reaping whatever slim benefits the collaboration brought, but nobody’s really talking about it to his detriment.

Fiorina’s Vice-Presidential Bid

The sad truth is that Cruz had a terrible night on Tuesday, knew weeks in advance he was going to have a terrible night on Tuesday, and needed to do something big to change the headlines to something less bad.

This is a tactic Cruz borrowed from Trump: throughout this campaign season, whenever Trump has a bad day (because he lost a debate, or Maine), he prevents it from sinking in by changing the headline, whether by saying something outrageous or by deliberately provoking a minor riot in Chicago (which was the post-Maine strategy).

So, Cruz knew that the media was going to come out of April 26th hailing Trump as the conquering juggernaut who cannot possibly be stopped. (This was a correct prediction.) What could  he do to shake things up? There’s a well-known media double standard about Trump (throughout this campaign, Trump has gotten more media coverage about less important things than all his competitors combined), but Cruz had an ace in his pocket: he could announce his vice-presidential pick. Even the TrumpTrumpTrump media would have to pay attention to that.

So Cruz leaks that his campaign is vetting Carly Fiorina on the day of the massacre, then announces her as his veep choice the day after, doing his darndest (with a morning announcement just to tease the afternoon announcement) to dominate the news cycle.

This probably sounds cold-blooded and cynical. All tactical decisions do, when they’re laid out for their tactical worth. Reagan did something similar in 1976 by naming Richard Schweiker, a moderate Republican, as his running mate. Reagan did this to reassure the party establishment that he could create a big-tent conservatism, despite the fact that he shared very little in common with Schweiker. (It didn’t work, at any rate; Reagan lost the nomination at a semi-contested convention.)

Cruz’s decision to name Carly as his running mate isn’t nearly as cynical as that. Carly endorsed Cruz months ago, and they’ve been enthusiastic collaborators ever since. She shares Cruz’s outsider credentials and his core conservative platform, without falling apart under scrutiny the way Sarah Palin did. She has a lot of the charisma Cruz lacks. No doubt Carly would have appeared on the Cruz VP shortlist no matter what the timing was.

However, if we pick at it a little further, the tactical advantages to naming Carly are obvious. First, she doesn’t compromise the Cruz “brand.” It is traditional for presidential candidates to pick running mates who “balance the ticket,” as Lincoln picked Johnson and Reagan picked Schweiker, but, in this hotly anti-establishment year, doing so would have gone directly against Cruz’s own rhetoric against the “Washington cartel” and fueled charges of hypocrisy. If Cruz had named, say, Kasich as his running mate, it’s easy to imagine a bunch of Cruz supporters (who support Cruz because he is a conservative, principled outsider) pulling up stakes and going to Trump, because Kasich is neither conservative (at least, not to the extent these Cruz fans are) nor principled nor an outsider. There are very few credible people who wouldn’t hurt Cruz’s brand like this; Carly is one of the few.

Second, Carly’s message complements Cruz very well: she’s a woman, which makes her a potent defensive weapon against Hillary Clinton’s gender-warfare campaign (ugh, I know, I hate identity politics, too), and — far more importantly right now — Carly is one of the few people, of any sex, who have landed a clear and damaging blow on Trump during this election cycle, with her retort to his comments about her face in an early debate.

Beyond this, conservative women love Carly. The last poll on her I can find that broke out by gender and ideology found her at 60% favorable / 22% unfavorable among Republican women — 9 points better than she performed among Republican men. My sister, who has been profoundly skeptical of Cruz throughout the cycle, actually clapped and cheered when she heard the news. She is not the only conservative female I know to have had this reaction. Nor is this a reflexive, identitarian response to a “woman candidate.” Conservative women don’t go in for that Gloria Steinem nonsense. If anything, my female conservative friends dislike Michelle Bachmann and Sarah Palin more than my male friends do. What resonates with them is Carly’s ability to passionately articulate the moral truth of the conservative position, especially her fierce honesty about what it is Planned Parenthood actually does (hey! they kill fully-formed babies and harvest their body parts in exchange for money that they claim isn’t profit!). Since Cruz is weak with conservative women (the same poll had him at 56/28 with Republican women, 4 points worse than he does with Republican men), having Carly Fiorina on the ticket shores him up.

Third, Carly is popular among Republicans in California, where she ran unsuccessfully for Senate in 2010 but is still well-liked by the base voters who almost got her there. You may recall that California is the only state left on the calendar even more important than Illinois Indiana. Fiorina could be a potent weapon for Cruz there.

Unfortunately, I don’t see how Carly helps Cruz much in Indiana, which is our area of immediate focus.

Even more unfortunately, the Cruz campaign’s attempt to use the VP nomination as a distraction from the Acela corridor massacre on Tuesday largely didn’t work: headlines played it up as a desperate move from a campaign on the rocks, and frequently didn’t give it much coverage at all; CNN.com considered the Sanders campaign’s big layoffs a bigger story. I’m compelled to quote a passage from FiveThirtyEight’s chat about the Carly nod:

Nate Silver: My contract requires me to complain one more time about how Trump-centric the media coverage has become. It’s actually become moreTrump- centric as the campaign has gone along. While Trump could command a 13-person roundtable on CNN by inadvertently farting during a press conference, Cruz has to do something actually newsworthy — and risky and “desperate” — to get the same treatment.

Clare Malone: To Nate’s point, it was just amazing to watch MSNBC last night, anchored by Brian Williams, cut away from most of the candidate speeches but just hang onto Trump’s forever and ever. It hits you over and over again. In a lot of ways, you can’t blame Cruz for wanting to wrest our attention away for a media moment or two.

So Ted Cruz has made two major strategic gambles this week in order to secure Indiana. Both were reasonable gambles, well-founded on the available data and both seemed likely to succeed at the time they were made.

However, neither has paid off as expected, and Cruz enters the most crucial days of the entire 2016 GOP primary little better off than he would have been without these gambles… and perhaps even a bit worse. If you don’t want Donald Trump to be the Republican nominee, then it’s not time to panic, but it’s time to be awfully nervous.

Indiana votes next Tuesday, May 3rd.