As Dixville Notch goes so goes (maybe) the GOP; plus, Trump’s vulgarity

Texas Sen. Ted Cruz, campaigning Tuesday in Manchester, N.H. (Matthew Cavanaugh / Getty Images)

Voting in today’s New Hampshire Democratic and Republican primaries comes to a close in a couple of hours — at 6 p.m. Central, with about 20 of 319 polling locations remaining open until 7 p.m. Three tiny communities — Dixville Notch, Hart’s Location and Millsfield — voted at midnight and reported their results this morning. So with 65 votes counted already in New Hampshire, Texas Sen. Ted Cruz, Ohio Gov. John Kasich and Donald Trump are in a three-way tie in the Republican primary, with nine votes each. In the Democratic primary, Vermont Sen. Bernie Sanders leads former Secretary of State Hillary Clinton 17 votes to nine, with two votes recorded for Mark Stewart Greenstein. (Who? It doesn’t matter.)

Dixville Notch (population 12, with nine votes) is the best known of New Hampshire’s early-voting tiny places, and in Dixville Notch’s Republican primary, Kasich got three votes to Trump’s two, while Sanders took all four votes in the Democratic primary. Lest you think early results in Dixville Notch are meaningless, I’ll just mention, for what it’s worth, that in every contested Republican primary since 1976, the winner of Dixville Notch has gone on to win the party’s nomination. (This streak includes two first-place ties — between Ronald Reagan and George H.W. Bush in 1980 and between Mitt Romney and Jon Huntsman Jr. in 2012.) Dixville Notch’s record picking Republican nominees is better than Iowa’s. Just sayin’.

The same predictive ability fails Dixville Notch’s Democratic voters. They’ve picked the eventual Democratic nominee only about half the time over the past 40 years.

Observers will be tracking various storylines as New Hampshire’s results come in tonight, from whether Trump emerges the winner he thought he would be in Iowa, to whether Kasich, New Jersey Gov. Chris Christie or former Florida Gov. Jeb Bush attract enough votes to justify continuing their campaigns, to how close Clinton can come to Sanders, who’s expected to win New Hampshire’s Democratic vote easily. I’ll be following results on Twitter at @jodyseaborn.

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Just when you think Trump or some of his supporters couldn’t get any lower, he repeats a vulgar term a woman said about Cruz during a rally Monday night in New Hampshire. If you don’t know already what Trump said and must find out, you can follow this link or you can find it readily elsewhere online. But Trump’s vulgar remark, or rather his repetition of a supporter’s vulgar remark, doesn’t interest me as much as the subject that prompted the vulgarity.

Trump has defended waterboarding throughout his campaign. During Saturday’s Republican debate in New Hampshire he went further, saying he would bring back “a hell of a lot worse than waterboarding” to interrogate terrorism suspects. Cruz, when asked, also defended waterboarding — “It is vigorous interrogation, but it does not meet the generally recognized definition of torture,” he said — but he also said he would not bring it back “in any sort of widespread use.” So Monday night in New Hampshire, Trump was criticizing Cruz’s response to Saturday’s waterboarding question as weak and cowardly when his supporter crudely agreed. Trump repeated the woman’s remark so everyone in the audience could hear it. Then he mockingly reprimanded the woman for saying what she said.

First, Cruz is wrong. The United States considers waterboarding to be torture and that consideration goes back decades. The George W. Bush administration worked around the United States’ longstanding ban against waterboarding by euphemistically creating a category of “enhanced interrogation techniques” to excuse its use.

The CIA and supporters of the Bush administration’s interrogation methods insist they worked and allowed intelligence officials to collect information about terrorists that saved American lives. The evidence suggests otherwise. But even if you could establish beyond doubt that torture works — and if it works and saves lives, then why not do a hell of a lot worse, as Trump says he would do — questions about its legality, morality and compatibility with American values would remain.

It’s unfortunate that so many candidates in a party that likes to define itself as the defender of American morals and values trust the methods of the Spanish Inquisition, the Japanese Imperial Army, the Khmer Rouge and military dictatorships throughout the world more than the values and laws of the United States.

Sis boom brouhaha: Texas cheerleaders’ Bible-banner case, revived and revisited

On Oct. 17, 2012, then-Gov. Rick Perry and then-Attorney General Greg Abbott held a news conference to support the use of Christian-themed football banners by Kountze High School cheerleaders. (American-Statesman file photo)

In 2012, cheerleaders in Kountze, a small town about 95 miles northeast of Houston, brought some real religion to the religion that is Texas high school football by painting Bible verses on the large paper banners players run through as they take the field. In forsaking the traditional “Sink the Pirates!” or “Snap the Dragons!” the cheerleaders begot a national stir.

An atheist group immediately objected. Kountze’s superintendent, on the reasonable advice of the school district’s attorney, banned the banners. The cheerleaders sued the school district, or rather some parents sued on the cheerleaders’ behalf. A state district judge ruled for the cheerleaders. But the ruling was confusing so Kountze appealed, seeking clarity.

The 9th Texas Court of Appeals in Beaumont declared the cheerleaders’ lawsuit moot in 2014 because in the meantime the Kountze Independent School District had relented and decided to allow the Christian-themed banners. But in doing so, the school district reserved its right to exercise editorial control over the banners as needed. This displeased the cheerleaders’ lawyers, who asked the Texas Supreme Court to resurrect their lawsuit.

Which the court unanimously agreed to do last week. The justices then punted the case back to the 9th appeals court to decide whether the banners violate the First Amendment. The state’s Republican leaders, ever eager to reach for attention from the case, and with plans to make religious liberty a top issue during next year’s legislative session, rejoiced.

The cheerleaders argue that because they used private donations to pay for the banners and decided for themselves which biblical phrase to use on each one, the banners represent private speech and thus are protected by the First Amendment. They further argue that under the First Amendment, the school district, as a government entity, cannot stop them from exercising their religion.

Several school- and government property-related First Amendment rulings by the U.S. Supreme Court “cut against the cheerleaders in this case,” Vikram David Amar, dean of the University of Illinois College of Law, and Alan Brownstein, a law professor at the University of California at Davis School of Law, explained in a 2012 legal analysis. A football game is a school-sponsored event that takes place on school-owned property. If the cheerleaders are acting as individuals and not as representatives of the school, as the cheerleaders’ lawyers assert, then the school district is unconstitutionally favoring their religious views and expressions over the views and expressions of other students when it allows only the cheerleaders to place banners on the field. Either the cheerleaders are school-endorsed participants in a school activity (which is how everyone sees them) and thus subject to school district rules and constitutional prohibitions against the government endorsement of one religion over another, or they are individuals whose speech and religious views are no more privileged than the views of anyone else. The cheerleaders want it both ways.

The Christian verses the cheerleaders painted on their banners are vaguely athletically applicable quotes from the New Testament — passages that should be familiar to anyone who remembers anything about their high school’s chapter of the Fellowship of Christian Athletes. “I can do all things through Christ who strengthens me,” from Philippians 4:13, is one example. “But thanks be to God who gives us victory through our Lord Jesus Christ,” from 1 Corinthians 15:57, is another.

The Kountze Lions have now played four seasons since the controversy began. The Texas Supreme Court’s decision last week prompted me to look up Kountze’s record for the first time since I wrote a tongue-in-cheek column in early November 2012 urging the cheerleaders to put aside the feel-good New Testament passages they had been using and turn instead to the fear and wrath of the Old Testament. The Lions were on a losing streak in 2012 and needed a spark to salvage a possible winning season and playoff berth — which would have been Kountze’s first after 40 years of wandering in the playoff wilderness. The cheerleaders needed to bring it on, I wrote. It was time for the Lions to take the field like bears sent to maul the children who mocked Elisha’s bald head. They needed to win a game.

But no. The Lions lost both their final games and finished the 2012 season with a 2-5 district record. It’s unclear how often the school’s cheerleaders — the group who first created the banners would have graduated two or three years ago — still use the Scripture-based banners but I can report that the Lions enjoyed a 4-3 district record in 2013 and 2014 and finally made the playoffs each year — alas, only to be blown out in the first round both times. (My guess is advancing beyond the regular season had more to do with the UIL’s doubling of the number of teams allowed to make the playoffs — Everybody’s a winner! — than with Providence, but I’m willing to be wrong.) The Lions reverted to their losing ways this past season, winning only two games.

From the facetious to the sincere, another suggestion, repeated: Cheerleaders, the lawsuit filed in your name will play out however it will play out. Forget it. Teach the adults who are using you to advance their own political agendas a soft lesson. Start the 2016 season with a banner quoting Matthew 6:6: “When you pray, go into your room, close the door and pray to your Father, who is unseen.” Then dedicate yourself to putting the fun back in your banners. Embrace the lower-case spirit that should animate football games. God is best kept with you, not by turning His word into football inanity.

Is Ted Cruz’s Iowa win the exception or the rule?

Texas Sen. Ted Cruz speaks to supporters in Des Moines, Iowa, Monday night after winning the state’s Republican caucus. Standing next to Cruz is his wife, Heidi. (Christopher Furlong / Getty Images)

Texas Sen. Ted Cruz won the Republican Iowa caucus Monday, which given Iowans’ lousy record picking presidential nominees may be no win at all.

Cruz beat a field of 11 Republican candidates, taking 27.6 percent of Monday’s caucus vote. Donald Trump, the front-runner according to pre-caucus polls, received 24.3 percent of the vote and Florida Sen. Marco Rubio won 23.1 percent — a strong third-place finish.

As I wrote Monday, history says Trump won’t be the Republican nominee, much less president — a historical judgment Iowa may have confirmed. (It’s way too early to say for sure and, yes, it is only Iowa.) And in the world of presidential caucuses and primaries, where media expectations and narratives about overperformances and underperformances can mean as much as actually winning or losing, Rubio may be Monday’s real winner, perhaps emerging as the leading choice of the so-called Republican establishment.

Meanwhile, more than 17,000 Iowans think Ben Carson should be president. Enough said.

Again, results in Iowa usually don’t mean much in the end. “Picking presidential losers since 1972” could be the state’s motto. Only three times has the winner of a contested Republican Iowa caucus gone on to win the party’s nomination (Gerald Ford in 1976, Bob Dole in 1996 and George W. Bush in 2000), and only Bush moved into the White House. The record on the Democratic side of the Iowa caucuses isn’t any better — the exception Cruz hopes to follow is that of Barack Obama’s in 2008. The winners of the past two Republican Iowa caucuses were Mike Huckabee in 2008 and Rick Santorum in 2012 and, unless I missed it last night, neither President Huckabee nor President Santorum called Cruz to congratulate him on his victory.

Cruz received a smaller percentage of the vote than Huckabee did in 2008 — the former Arkansas governor got 34.4 percent of the vote in a field of eight candidates — but a greater percentage than Santorum in 2012, who barely squeezed by eventual nominee Mitt Romney four years ago.

Unlike Huckabee and Santorum, Cruz’s campaign is well-organized and well-financed. His campaign has $19 million on hand, more than any other Republican candidate. New Hampshire — that other demographically unrepresentative small state given an outsize role in presidential contests — holds its primary next Tuesday. It isn’t considered prime Cruz territory. But then comes South Carolina on Feb. 20, followed by Texas and 11 other mostly Southern states on March 1. Afterward, we’ll have a better idea whether Iowa again, by putting Cruz on top, has pointed us nowhere.



Will Trump make history in Iowa, or will Iowa make Trump history?

Republican presidential candidate Donald Trump speaks Sunday during a campaign event in Sioux City, Iowa. (Patrick Semansky / Associated Press)

Trust in history.

That’s been my mantra-like response to anyone who has fretted about the prospect of Donald Trump winning the White House. Trust in history, I’ve been saying. History says Trump will not be president. In fact, forget Trump winning in November; history says he will not even win the Republican nomination.

But here on the day Iowans caucus, with “the best pollster in Iowa,” as Nate Silver’s describes the Des Moines Register’s Ann Selzer, showing Trump leading Texas Sen. Ted Cruz 28 percent to 23 percent, perhaps it’s time to acknowledge that history is mutable. The unexpected sometimes happens.

The next several weeks will tell if Trump is the historical exception to the past several decades of Republican presidential politics. His lead in the polls certainly has proved to be more enduring than the various campaign surges we saw four years ago, when Rick Perry, Herman Cain, Newt Gingrich and Rick Santorum all briefly topped the Republican field (Michele Bachmann rose to second place at one point in the 2012 polls but never led any of them). A general willingness to accept that Trump might be the nominee has replaced the widespread certainty of a month or so ago that he would not win the nomination — that Republicans would behave rationally when it came time to actually vote and would reject Trump.

I still think it’s possible, maybe even likely, that the Republican nominee will be one of the so-called establishment candidates, and not Trump — or Cruz, for that matter. I search for guidance in history, which interests me more than polls and political predictions — “I don’t make predictions” is another of my mantras — so while it will be unusual if Trump wins the nomination, it will not be unprecedented. He will be following, more or less, in Wendell Willkie’s footsteps.

Wendell Willkie

That’s right, Trump could turn out to be 2016’s Wendell Willkie, the New York utility executive and political neophyte who made a name for himself criticizing President Franklin Roosevelt in the late 1930s and used his political celebrity to win the Republican nomination in 1940. (Three recent articles on Willkie as forerunner to Trump can be read here, here and here.) As with Trump, who apparently has never voted in a Republican primary election, Republicans were skeptical of Willkie’s party loyalty — he had been a registered Democrat until 1939. And like Trump, outsider Willkie held several views contrary to those held by his chief insider rivals, Sen. Robert Taft of Ohio, Sen. Arthur Vandenberg of Michigan and Thomas Dewey, the young, ambitious district attorney from New York (yes, that Thomas Dewey, the one who would famously lose to President Harry Truman in 1948). In the end, what Willkie won by winning the Republican nomination was the privilege of losing to FDR, who secured an unprecedented third term with 54.7 percent of the vote to Willkie’s 44.8 percent. By losing, Willkie also won almost instant obscurity.

Before there can be historical parallels, there must be real political victories. Someone will win Iowa tonight, though Iowa isn’t necessarily about winning. It’s about meeting and beating national media expectations. It’s about Trump showing he has a legitimate ground game and is running a real campaign, Cruz establishing momentum and showing he didn’t peak too soon in the polls, and Florida Sen. Marco Rubio positioning himself as the alternative to Trump and Cruz. And it’s about everyone else doing well enough to avoid the inevitable winnowing that follows Iowa and New Hampshire, which holds its primary next week.

Tonight also should be about Iowa proving that it merits the outsize attention its caucus gets. It doesn’t have a great track record picking presidential winners. Winners of the Iowa Republican caucus include George H.W. Bush in 1980 (yes, Iowa caucus-goers chose Bush over Ronald Reagan), Bob Dole in 1988 (when Bush, Reagan’s vice president at the time and the eventual president, finished third behind Dole and Pat Robertson), Mike Huckabee in 2008 and Santorum in 2012. Only three times since 1976 has the winner of a contested Iowa caucus won the Republican nomination (Gerald Ford in 1976, Dole in 1996 and George W. Bush in 2000), and only twice since 1972 has the winner of a contested Iowa caucus, either Democratic or Republican, won the White House (George W. Bush in 2000, Barack Obama in 2008).

Whatever tonight’s Iowa results bring, we at least have this certainty: We’re just a night and a day or two of post-caucus analyses away from being able to forget about Iowa again for another few years.

Two hours of the ‘staid’ Republican campaign we once expected

Ted Cruz
Texas Sen. Ted Cruz answers a question during Thursday night’s Republican presidential debate in Des Moines, Iowa. (Charlie Neibergall / Associated Press)

We saw in Thursday night’s Republican presidential debate the campaign we were meant to have before Donald Trump rode an escalator into the race and began sucking all the media oxygen and attention from everyone else. Without Trump’s tiresome Il Duce act taking center stage — call it entertaining if you must — I found the alternate campaign we glimpsed for two hours Thursday refreshing, even if it was “a staid, policy-heavy contest,” as The Associated Press described it in its coverage — a contest in which the other Republican candidates “strained to take advantage” of Trump’s absence.

Fox News hosted Thursday’s debate, and moderators Chris Wallace, Megyn Kelly and Bret Baier did an excellent job. The two debates hosted by Fox News and as well as the two hosted by Fox Business News have been the best of the campaign. All four have been tightly controlled and have featured tough, fair, concise questions. Of course, one of those questions — about Trump’s many misogynist comments he has made over the years, asked in August by Kelly — is the reason Trump refused to participate in Thursday debate and instead held his own “special event” a few miles away. A snide statement released Wednesday by Fox only hardened Trump’s determination to skip Thursday’s debate.

Trump’s absence had to be acknowledged, of course, and Kelly opened the debate by asking Texas Sen. Ted Cruz about “the elephant not in the room tonight.” Cruz had a well-rehearsed zinger ready to go. “I’m a maniac,” he said, taking a stiff beat. “And everyone on this stage is stupid, fat and ugly.” And with that, “the Donald Trump portion” of the debate, as Cruz put it, was done, rarely to resurface.

OK, it turns out Cruz could have used Trump on Thursday. This was a point the American-Statesman’s Jonathan Tilove emphasized in an analysis previewing the debate. Without Trump to attack, Cruz lost a chance to recover some of the momentum in the polls he has lost the past couple of weeks. An average of polls conducted between Jan. 18 and Jan. 27 shows Cruz trailing Trump by 7 points, and fading. Then again, Cruz is still thought to have the best organization in Iowa and there remains doubt that Trump’s followers in Iowa are dedicated enough to leave their warm homes and caucus with strangers on Monday.

Trump’s absence allowed Florida Sen. Marco Rubio, former Florida Gov. Jeb Bush, New Jersey Gov. Chris Christie, Ohio Sen. John Kasich and Kentucky Sen. Rand Paul to move beyond their expected roles as sidemen to a Trump vs. Cruz match-up. (Yes, I did not mention Ben Carson. Why? Because a random, reasonably informed person could do as well as the good surgeon did, so out of his depth is he.) Placed on equal footing with Cruz on Thursday, each candidate did his best to show that he is the real alternative to Trump, not Cruz, who spent most of Thursday night underscoring why so many colleagues find him so generally unpleasant.

I would like to think that Trump’s petulant refusal to join a debate just because a tough question upset him will be seen in Iowa and elsewhere as cowardice and weakness, but it’s unlikely given that nothing Trump does seems to hurt him. The more bullying he is, the stronger he seems to get. And, of course, the national media remains infatuated with him. So it’s probably foolish to wonder whether Thursday’s debate, however “staid” it was, marks the point where the long-anticipated rally of the so-called Republican establishment finally begins.

If so, it’ll only be seen in retrospect, once actual votes are cast. And the casting of actual votes finally — mercifully — starts Monday in Iowa.

Immigration and the Supreme Court: A politically charged caseload, amplified

immigration rally
Supporters of President Barack Obama’s immigration policies march around the Governor’s Mansion during a November 2015 immigration reform rally. (JAY JANNER / AMERICAN-STATESMAN

Sometime in June, arriving a few weeks before Republicans and Democrats hold their nominating conventions in mid- and late July, the U.S. Supreme Court will issue a series of rulings sure to fire up or anger — or fire up and anger — each parties’ candidates and hardcore supporters. Pending before the court’s justices are cases involving affirmative action and abortion, the meaning of “one person, one vote,” and, as of this week, the authority of the president to enforce or not enforce immigration law. And all of these cases came to the court courtesy of Texas or Texans.

Yee oyez haw.

In November 2014, President Barack Obama protected from deportation the parents of American citizens or permanent residents to allow them, as Obama said, to “come out of the shadows and get right with the law.” Obama also expanded the Deferred Action for Childhood Arrivals program that he initiated in June 2012 to help immigrants younger than 30 who were brought to the United States as children remain in the only country many of them have ever really known. The president’s actions were set to allow perhaps as many as 5 million unauthorized immigrants to remain and work in the United States. Gov. Greg Abbott, then in his waning days as Texas attorney general, sued to keep Obama’s policy from taking effect; 25 states joined Texas in opposing the president.

A U.S. district judge and the 5th Circuit Court of Appeals blocked the policy’s implementation. So the Obama administration asked the Supreme Court to weigh in, and on Tuesday the justices agreed to do so. The court is expected to hear oral arguments in April, with a decision, as noted, probably coming in June. Because immigration is a top and contentious presidential issue, coverage of the court’s decision this week has been framed as an “election-year clash,” to cite The Associated Press as one example. Even if the Supreme Court justices rule in Obama’s favor — precedent suggests they should — his administration will have less than seven months to implement its policy before the next president assumes office. So Obama’s policy lives or dies not only with the court, but also with the next president.

The Supreme Court will consider four questions in the United States v. Texas, as the immigration case is formally known. (Detailed, clear explanations both lawyerly and in “plain English” of the legal issues involved can be found on SCOTUSblog, here and here.) A summary:

The first question is whether Texas and the other 25 states have “standing” to sue the federal government. Clearly the states disagree with Obama’s policy, but simply disliking a federal program does not give states the right to challenge it in court. Direct harm must be suffered to seek legal relief.

Last February, U.S. District Judge Andrew Hanen of Brownsville ruled that costs associated with granting temporary legal status to a group of undocumented immigrants — Hanen highlighted the issuance of driver’s licenses — would directly harm Texas. A three-judge panel of the 5th Circuit affirmed Hanen’s ruling, 2-1, in November.

The Supreme Court could deny Texas standing and end the case without considering any other question. But I don’t think anyone expects that to happen.

Another question involves whether the Obama administration failed to follow the Administrative Procedures Act by not giving the public sufficient notice of its immigration change along with the opportunity to comment on it. Hanen based his decision blocking Obama’s action on this technical, procedural issue, a detail most news stories skipped past this week.

The final two questions are related if not redundant. They certainly are politically charged. Does the Obama administration have the authority to issue a new immigration policy? And did the president’s actions violate the Constitution’s requirement that he “take care that the laws be faithfully executed.”

Only Congress, of course, can make law, but the president has “prosecutorial discretion” when it comes to enforcing the laws. Limited resources dictate the administration set priorities. So Obama decided to defer action against one group of undocumented immigrants to focus on other groups, like immigrants who pose a public safety threat, for example. Texas accepts that the administration has discretion to enforce the law, but only case by case, not by issuing a sweeping policy.

Neither Hanen nor the 5th Circuit addressed the constitutionality of Obama’s policy. The Supreme Court added this question to its review at the states’ request. The court rarely considers issues not taken up by a lower court.

As The New Yorker’s Jeffrey Toobin wrote this week, the United States v. Texas is one of those cases that threatens to scramble the usual ideological positions. The issue of standing is one example: Conservatives view it narrowly, liberals more broadly. But this case could reverse those traditional positions. “If the Court splits along its customary ideological lines — the conservatives against Obama, the liberals for him — the case may serve as another illustration that politics, rather than precedent, is the real currency of the Supreme Court.”

Meanwhile, whether the courts rule with the president or against him, the country’s immigration system will still need reform. And on immigration, Congress continues to show it can’t even work with itself, much less the president.