LAS CRUCES CITY COUNCIL COMMITTEE VIOLATED OPEN MEETINGS ACT

 [NOTE: This blog is the narrative statement in a formal complaint about Open Meeting Act (OMA) violations by the City of Las Cruces to the New Mexico Attorney General Raúl Torrez.  It is not an easy read; it is a detailed statement of alleged violations of Las Cruces city ordinances or New Mexico state laws.  In previous blogs, I have criticized City Council’s unwillingness to address major problems and considered incompetence and corruption as contributing factors to these problems.  By contrast, these violations indicate City Council’s willingness not only to violate city ordinances and state laws, but also to deceive the public in its representation of the purpose and duties of the Public Safety Select Committee (PSSC) and to shield the violations by secrecy.  Worth noting: when I twice asked Mayor Enriquez about the continued existence of the PSSC, he did not reply.]

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This narrative statement accompanies the state form for formal complaints about violations of the Open Meetings Act (OMA) by the City Council of Las Cruces, New Mexico.

 

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City Council created the Public Safety Select Committee (PSSC) as a committee which met only in closed sessions.  The PSSC anticipated Inspection of Public Record Act (IPRA) requests and apparently adopted a strategy to conceal any illegal conduct.  PSSC records subsequently disclosed do not reveal decisions made in violation of OMA, but secrecy precludes the discovery of a smoking gun.  However, the PSSC violated the city ordinance under which it was chartered, violated the terms of its charter, and violated certain OMA provisions for the conduct of non-public committees.  A key duty of the PSSC was to report what it learned or recommended to the full Council, but, since it never did so in meetings and has produced no records indicating such formal reports, it can have done so, if at all, only by communicating with Councilors in ways which would violate OMA, possible my a rolling quorum.  Under these circumstances, an investigation into the likelihood that the PSSC violated other and more serious OMA provisions is warranted.

 

Violations of the City Ordinance.  Under the Las Cruces Code of Ordinances; Part I-Charter; Chapter 2-Administration; Article 4-Boards, Commissions and Committees; Division 7-Select Committees; Sec 2-1101-Scope,

(a) Select committees may be established by the mayor or city council to provide the mayor and city council with information and advice on the goals and objectives stated in the city charter or the city's strategic plan. The membership, purpose, duties, and duration of the select committees shall be determined by the mayor or the city council and shall be made available to the public.

(b) If the mayor establishes a select committee, the city council shall be given written notice of the establishment of all select committees. This notice shall include the purpose for the select committee and the names of the members.

(c) The term of the select committee shall not exceed one year or the amount of time necessary to complete the specific established goals and objectives of the committee.

(d) The recommendations of a select committee shall not be binding and are subject to approval of the city council or the city manager in accordance with the city charter.

(e) The city manager may assign appropriate city staff or community members to a select committee for the purpose of providing information, recommendations, or subject-matter expertise. The select committee shall not include more than three members of the city council.

(f) Sections 2-187 through 2-190 are inapplicable to select committee members.

 

The then-Mayor Ken Miyagashima established the PSSC.  Initially, the membership, purpose, duties, but not the duration of the PSSC were made available to the public on the city’s website (https://onboard.las-cruces.org/).  Several years later, although the PSSC still met, its website entry was removed.  On 10 December 2020, the city council was given written notice of the establishment of the PSSC.  It met for three years, not one, from 2021 through 2023.  The PSSC had no “specific established goals and objectives.”  Instead, it addressed a wide range of issues: among others, domestic violence, homelessness, panhandling, shoplifting, vandalism, and some, like cannabis, little or not related to public safety.  It resolved none of them.

 

Violations of the PSSC Charter.  The charter of the PSSC partly paralleled the language of the ordinance and partly detailed its purpose and duties.

The Mayor has established the Public Safety Select Committee with the following membership, purpose, duties and duration:

The Public Safety Select Committee shall be comprised of no more than three City Councilors, the City Manager or their designee, the LCPD Chief of Police, the LCFD Chief, the City Attorney, City staff designated by the City Manager as needed and additional subject matter experts requested by the Committee as needed.  The Mayor has determined that council membership will be:

Mayor Miyagishima [later replaced by Eric Enriquez]

Mayor Pro Tem Gandara

Councilor Vasquez [later replaced by Councilor Tessa Abeyta]

The Public Safety Select Committee’s purpose is to improve the overall safety and quality of life of the community by providing recommendations to the City Council on safety initiatives, raising awareness of community safety concerns, and to serve as a mechanism for productive discussion on matters of public safety between the policy making body, individuals serving in the area of public safety and subject matter experts.

The duties of the Public Safety Select Committee shall include but not be limited to the following: (1) provide input, comment, or recommendations on proposed ordinances, programs, or initiatives involving public safety matters within the City; (2) provide recommendations to the City Council on matters of public safety; (3) provide information, recommendations, or assistance in the development and implementation of various existing and future public safety related programs; (4) encourage, collect, and present resident input regarding public safety service levels and priorities; (5) make recommendations concerning related department budgets and budget priorities.

The Public Safety Select Committee shall remain in place for one year and may be renewed annually.

 

The PSSC did not fully comply with these terms.  Membership complied with them.  No evidence shows that the PSSC achieved its purpose—impossible without “specific established goals and objectives”—or fulfilled its duties.  The city’s responses to IPRA requests for all relevant records through 2023 include no records of information, advice, or recommendations transmitted to city council.  Without providing them, the PSSC voided its primary means to “improve overall safety and quality of life” and limited its ability to raise awareness (whose?) of, or have productive discussions (with whom?) about, public safety.  The records reveal no effort to “encourage, collect, and present resident input” on anything.  In the website space for “contact” with the committee, no official is identified, and no number given.  The records reveal no action to formally work beyond one year.

 

Notably, the duty to provide support for the development or implementation of “existing and future public safety related programs” suggests PSSC’s operational involvement in city operations—a duty beyond the authority of such a committee.  Indeed, since the PSSC did not do what it was supposed to do, the question is whether it did what it was not supposed to do.

 

Violations of the Open Meetings Act.  Although PSSC violations of city regulations are not violations of OMA, they reveal a pattern of non-compliance with legal guidance and indicate deceptiveness in the disparity between PSSC statements of purpose and duties, and its actions.  Some discussions suggest new policies or imply directions to officials, in violation of OMA.  Its closed meetings violate OMA.  OMA makes exceptions for closed meetings on certain topics, but few, if any, of them cover PSSC topics.  To justify its closed meetings, PSSC’s internal agendas provide a bogus reference to city ordinances (LCMC Chpt. 1, Div. 6, Sec. 2-174, et seq).  However, the referenced ordinances do not address closed meetings.  Even so, the justification would be limited to and could not extend exceptions allowed by OMA, which takes precedence over local ordinances.  Moreover, the PSSC did not announce its meetings or publish its agendas.

 

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The secrecy surrounding the PSSC for three years raises several questions which suggest OMA violations as an answer.  First, why was secrecy necessary if the PSSC were merely gathering information on public issues and formulating recommendations on them for City Council?  Second, since three seems to be no evidence of the PSSC forwarding information or recommendations to City Council, what was the PSSC doing if not creating new policies or direction department actions?  Third, why did the PSSC not focus on one problem and work to solve it?  Third,

 

One hypothesis for the creation and continuation of the PSSC, largely in secret, is that city council wanted to avoid public discussions of, and decisions on, contentious issues, and chose to divert them to a forum excluding the public for discussions leading to decisions and then to directions to senior city officials for dealing with those issues.  In short, City Council wanted to avoid transparency and accountability by “outsourcing” its duties and responsibilities to what became, in effect, a management committee.  The necessary secrecy required OMA violations.

PARDONING BIDEN AND INDICTING HIS DETRACTORS

On 13 June and repeatedly thereafter, President Joe Biden promised not to pardon his son Hunter for his gun- and tax-related crimes or to commute the sentences for his convictions.  Biden said he wanted to restore integrity to the office by not using his office to benefit his family.  Then, on 1 December, he broke that promise.  Almost at once and ever since, pundits of both political parties have deplored his broken promise though some have also expressed sympathy for his decision.

 

Pundits have several basic criticisms of Biden’s decision.  One is the allegation that, by breaking his promise to the American people, Biden lied.  To have lied, Biden would have had to know when he made his promise that he would not keep it.  But there is no reason to believe that he anticipated in June pardoning his son in December.  Not until September did Hunter plead guilty and, and not until December did he face sentencing, possibly involving some, but not much, prison time.  There is no reason to think that either father or son would not have accepted the decisions of the court.

 

Partisans on the right and cynics on the left and right retrospectively impugn Biden’s motives.  They claim that his alleged motive for lying was a political one, a pretense that he embraced higher ethical standards of public office than his predecessors or current opponent who had pardoned family members.  However, those who can separate their partisan politics from their moral judgments or suppress their cynicism about politicians know that Biden has high ethical standards.

 

The criticism that Biden lied rests on two misconceptions.  His promise cannot be a lie because promises are not truth-function propositions; instead, they are commitments to do or not do something in the future.  Moreover, a promise cannot be made knowingly “false” –that is a lie—retroactively by an unforeseen future action.

 

The other basic criticism of Biden’s decision is that promises made must be kept without exception.  Yet everyone knows that promises are not kept for good reasons.  “Hey, kids, I know that I promised a spring vacation at Disneyland, but a crisis at work means that we have to go at another time.”  When Biden made his promise, he hoped or believed that he would be re-elected.  He could not know whether Hunter would be convicted, or whether or to what extent he would receive a prison sentence.  When he broke it, he knew that Trump had won, had threatened revenge on the “Biden crime family,” and had nominated Pam Bondi as Attorney General to implement it.  Given that the charges and likely penalties were unusual for Hunter’s gun- and tax-related crimes, Biden had reason to fear for his son, to believe that Bondi would seek additional penalties.  These concerns arose long after Biden’s promise and provided a reasonable basis for breaking it.

 

Three things trouble me about the criticisms of Biden’s pardon.  One is that they disregard the definitions or features of lies and promises.  Nothing which I have argued is abstruse.  Another is that they disregard the personal and political contexts in which Biden made and broke his promise.  He did nothing unreasonable or unethical in dealing with changed circumstances.  Finally, since the criticisms are unfounded, my effort to understand them leads me to one conclusion: after the election outcome, Democrats are venting their disappointment and frustration with their diminished leader.  Biden deserves better than unfounded criticisms impugning his ethics and insinuating flaws in his character.  He is a good man and has been a good president.  It does no one any good to say otherwise. 

A CONSERVATIVE COLUMNIST OFFERS THE USUAL CLICHÉS

        As The Bulletin under the leadership of Algernon D’Ammassa upgrades the paper, both in print and on its website, it degrades itself in its selection of Ms. Shawna Pfeiffer to be its editorial booster of all things conservative in her column “Road Less Traveled.”  Its title is odd since her columns offer little more than political clichés expressed in verbal clichés—ironically, instances of roads well traveled.  Pfeiffer seems oblivious that clichés of any kind are usually symptomatic of an absence of thought and of sloppy writing.

For example, in her 3 December column, she writes, “Progressive extremists wish to continue the same old tired mantra of catering to the criminal in the name of social justice.”  “Progressive extremists”—are there any progressives who, to conservatives, are not extremists?  If there are, are their numbers large or small; is she talking about a sizable population or a tiny but vocal faction?  What does she mean by “catering to the criminal”?  If Progressives wish to continue arguing for social justice, why should they not?  Does she have any idea what they mean by “social justice,” and, if so, does she object to it and have reasons for doing so?  We shall never know because Pfeiffer expresses vague ideas and uses disparaging words which her political soulmates use when they refer to the views of those whose views differ from theirs.  She expects only those readers who agree with her to know what she means—in which case, her columns are themselves mantras preached or sung to the choir.

 

Recently, her columns have urged support of the Las Cruces Police Department, as the thin blue line of defense against “the crime taking over our community.”  What exactly is “the crime” doing so?  And on what basis does Pfeiffer, who admits to taking all of eight months to get up to speed on police issues, say it is doing so?  Indeed, what does it mean to say that “crime [is] taking over our community?  Are criminals sitting in the seats of members of City Council?  Have thugs taken over the police department?  Are gangs patrolling streets?  Are citizens cowering in their homes because they are afraid to send their children to school, to go to work, to venture out shopping?  What Pfeiffer seems to have mastered in eight months in town is hyperbolic clichés and pejorative language.

 

In her capacity as The Bulletin’s new conservative editorial voice, Pfeiffer, has written a number of columns on her heroes in a thinning blue line of dedicated but underappreciated heroes.  The clichés about police officers who, despite low pay, degraded facilities, and little public appreciation, put their lives on the line all working hours (and some off-duty hours as well, such is their dedication) guide her editorials.  As a result, her columns ignore the facts of local experience, notably, the Christopher Smelser killing of Antonio Valenzuela, the Jared Cosper killing of Amelia Baca, or the Felipe Hernandez killing of Teresa Gomez—and the nearly $30,000,000 paid in settlements.  Pfeiffer writes that LCPD officers put their lives on the line every day and cites in support the one and only killing of an on-duty LCPD officer in LCPD’s entire history as proof.  Missing is any comparative contrast with these three wrongful-death police killings of Las Cruces civilians in a 4-year period from 2020 to 2023.  Citizens put their lives at risk more often than LCPD officers put theirs on the line.  (See, too, The Independent’s story on police violence in New Mexico, which begins with the Gomez case and costs.)

Not only is her one-sided perspective unsophisticated and not sophisticated on that one side, but her vision is also inconsistent.  One moment, citizens do not appreciate the police; the next moment, “we love you and appreciate you and are so very thankful for your continued diligence in holding the line for our safety.”  “We” are likely the loving and appreciative people of her political ilk just as OIR reported wonderful relations between the police and the public on the police telling of it.  Pfeiffer cannot be faulted for not knowing that former Deputy Police Chief Miguel Dominguez told City Council in open session in 2020 that the public does not trust the police.  (No councilor asked why.). But if she had talked to citizens at random and perhaps not read OIR annual reports, she might have learned that many Las Cruceans are not among the “we.”

 

What to make of a columnist whose columns have talking points but lack the constituents of cogency; harvest the chaff of clichés but do not winnow the facts; exaggerate problems and derogate opponents; and show fundamental inconsistencies about public attitudes toward the police?  Not much, is the right answer.  The real question is why D’Ammassa hired Pfeiffer.  In view of the good which he has been doing The Bulletin since he replaced Richard Colthorp, my guess is that she is a necessary sop to the publisher.  If so, she probably cannot be discharged, but she can be ignored.

 

That said, D’Ammassa (or his publisher) is right to want a conservative columnist to ensure a voice to balance the greater attention which Progressive views get in Las Cruces.  For reasons unclear to me since I arrived in town nearly two decades ago, The Bulletin and the Sun-News have been unable to enlist as a regular columnist, with the exception of Jim Harbison, a writer who can present a conservative perspective cogently.  The need is great.  My hope is that D’Ammassa can identify and attract a capable conservative to his staff and replace his recent hire.

LAS CRUCES CANNOT AFFORD THIS CITY COUNCIL

       In many blogs over many years, I criticized City Council for its failure to undertake police reforms and the LCPD for incompetence and corruption.  I pointed out the costs both in lives lost or shattered and in costly settlements which reduced funds for better purposes.

The dereliction of duty by City Council and the Las Cruces Police Department in just three cases in only the past 4 years has cost three lives lost to killings and $29,250,000 in settlements.  Since the city self-insures, the cost per capita is nearly $300.  The costs are still higher because these settlements are not the only ones of cases involving personal injury and property damage reflecting Council indifference and resulting from LCPD misconduct.

 

The history of these three cases is instructive.  In February 2020, LCPD Officer Christopher Smelser killed Antonio Valenzuela.  Although charges against Smelser were dismissed, the city paid $6,500,000 to his estate to settle all claims against the city and its employees.  After the payout, Sam Bregman, Valenzuela’s attorney, opined that the size of the settlement would make it cost-prohibitive for the LCPD to be involved in future wrongful lawsuits.”  How wrong he was, in part because the city, not the LCPD, pays the costs of settlements with taxpayers’ funds; in part because a more outrageous killing and a three-times-bigger settlement awaited.

 

On 16 April 2022, LCPD Officer Jared Cosper killed Amelia Baca.  Although New Mexico Attorney General Raul Torres declined to charge him after out-of-state expert Steve Ijames argued self-defense and thereby cleared the killer and lowered the settlement, the city still paid $2,750,000 to her estate to settle all claims against the city and its employees.

 

On 3 October 2023, LCPD Officer Felipe Hernandez killed Teresa Gomez.  This killing was so egregious that the the City of Las Cruces reached a settlement with the estate of Teresa Gomez in its wrongful death lawsuit for $20,000,000.  “The settlement is the largest in the city’s history and is believed to be the largest in state history.”  Defendants were Hernandez, the city, the LCPD, Police Chief Jeremy Story, Deputy Police Chief Sean Mullen, and former Police Chief Miguel Dominguez.  The city’s news release admits no wrongdoing in expressing its regrets.  “This settlement should be understood as a statement of the city’s profound feeling of loss for the death of Gomez and of the city’s condolences to her family.”  Such compassion; such generosity—my hind part.  The city knew that the plaintiffs had a case threatening it with losses of many millions more.  Questions: will the city feel the same way about every future victim of a cop-killing; compensate every victim’s family similarly; and, if not, why not?  Surely, the circumstances of the killing do not determine the city’s feelings of loss and condolence.  (Information and quotations come from the 22 November 2024 Bulletin and Sun-News accounts and their hyperlinks.)

 

All three victims—one man, two women—were Hispanic; none was aggressive and posed no threat to the officers.  All three killings were preceded by officers’ unrestrained profanity and uncontrolled anger.  I do not know whether Smelser’s or Cosper’s jackets included prior incidents of excessive use of force, but Hernandez’s jacket does.  Which means that the LCPD has evidence of officers’ propensities to violence yet does nothing to get them effective anger-management therapy, to transfer them to desk jobs, or to offer out-counseling and support for another career.  That is, the LCPD makes no use of this information to protect the public and operates by hoping for the best with its fingers crossed and press releases at hand.

 

Bregman may have been optimistic about future LCPD conduct because the Valenzuela settlement required the LCPD to adopt numerous policies, including:

• Banning all forms of chokeholds
• Requiring officers to intervene if they witness an "unconstitutional use of force" by another officer
• Bi-annual de-escalation training for every officer
• Bi-annual training in empathy and racial bias for every officer
• Requiring all uses of force to be reported, investigated and stored under the length of time required by the New Mexico Retention of Records Act
• A red flag warning system to track use of force
• Requiring the Las Cruces Police Department to report all uses of force to the Las Cruces City Council every six month[s]
• Requiring officers to have a mental health exam on an annual basis with a licensed psychiatrist”

As far as I know, it adopted or implemented none of these policies, and City Council, though it discussed police reforms, proposed none.

 

These failures reflect government officials’ opposition to police reforms.  City Council and its secret Public Safety Select Committee opposed a citizens' police oversight board.  During a work session to consider a citizens' police oversight board, Councilor Johana Bencomo decried the lawyers’ draft as “superficial” but declared herself for “real police reform” (emphasis hers).  Yet neither before nor after has she proposed any reform.  She is not alone; no member of City Council since 2020 has proposed any police reform.  (I omit anything about a contract with OIR, a police auditor hired to whitewash the LCPD.)  I infer that Council members, individually or collectively, do not much care about the loss of human life or the waste of public funds because of inept LCPD leadership and out-of-control police officers.

 

The city needs new leadership.  I recommend that concerned citizens, especially those leading civic organizations, come together to form a non-partisan citizens’ group for good government, especially in matters of public safety.  The group should operate independently of Council, which is failing in this and other important matters of public concern.  It should use information obtained through IPRA.  It should hold meetings open to the public to listen to its concerns, identify issues, and report findings.  It should encourage candidates for Council with integrity; the courage to speak truth to power, including the mayor and fellow councilors, and the public; and a determination to address major problems and ameliorate or solve them as part of a commitment to public service.

 

Police reform should be the first item on the group’s agenda.  Initial work should consider two tasks.  One is a review of all LCPD policies.  These are proposed by the police chief and approved by the city manager, without any review by City Council.  It is likely that some important policies endanger people, do not serve the public interest, do not reflect community values, or violate legal principles.  The other is a review of all LCPD training materials.  For instance, the repeated failures of de-escalation training means that deficient police training is responsible for many LCPD failures (also desperate hiring of teenagers to fill up slots in a demoralized force).

 

Las Cruces cannot afford this City Council because its failures to address major problems waste funds which could better serve other public functions.  This Council disgraced itself by asking and securing about $11,000,000 per year in GRT taxes for unspecified improvements, then squandered $20,000,000 in settlement costs of another police killing, the third in four years.  The public should demand that its members ship out because it is long since past time for them to have shaped up.  Oliver Cromwell’s words apply: “You have sat too long here for any good you have been doing.  Depart, I say, and let us have done with you. In the name of God, go.”

CITY COUNCIL CANNOT SOLVE BIG PROBLEMS, BUT IT CAN MEDDLE IN PRIVATE DECISIONS

      City Council has yet to solve the big problems of domestic violence, homelessness, panhandling, shoplifting, and vandalism even though its secret Public Safety Select Committee addressed them for three years.  Ducking its failures, Mayor Eric Enriquez has refused to affirm or deny its existence in response to my two inquiries.  Meanwhile, the city is waiting with bated breath for Councilor Bencomo to propose “real police reform.”  But Council, having dealt with the shopping cart crisis, now turns to the critical problem of animal control.

According to Justin Garcia’s account in the Las Cruces Bulletin (18 Nov), “The city of Las Cruces will consider revising its animal control laws.”  In a work session, the city considered doing so.  Among them, one provision would limit declawing and punish residents found guilty of a first-time violation of it (a second violation would prohibit the owner from pet, not just cat, ownership).

 

I understand that people have strong opinions about declawing cats.  Some think that declawing is painful, though no more so than any other veterinarian surgery; is cruel because it hampers their flights from dogs or coyotes, on the erroneous presumption that declawed cats cannot climb trees; and seriously disadvantages them in fights with other, often feral, cats.  I suspect that their response adds an excess of sentimentality to the sincerity and strength of their opinions, which are, however, no guide to truth.

 

In light of my experience with cats, I question whether people who oppose declawing cats have experience with declawed cats.  (I speak of declawing front feet only; back feet must remain intact for climbing and defense).  My first wife and I had about a dozen cats at one time or another, several at one time.  None of them damaged furniture with scratching or wounded each other in tussles; we declawed none of them.  The woman who became my second wife had only one cat, but he had made her couch look like a dish of spaghetti without the meatballs and tomato sauce.  We agreed that I would get Joplin declawed before she moved in with me.  He was just fine afterwards and recovered nicely atop my computer desk, from which height he met and befriended my three large dogs.  When it came time for him to go outside (he had lived only in an apartment), he had no trouble climbing the dogwoods and fruit trees, and catching the birds, in our yard and, later, after we moved west, lizards, mice, and gophers in the field behind our house.

 

Given indications of damage to be done, I had a second cat, Edgar, declawed; again, no problems.  When I got a third cat, Cleo, a feisty calico, I did not initially get her declawed.  Edgar and she became best of friends, but their tussles resulted in wounds to Edgar’s face and neck.  Several veterinarian bills later, I incurred another for declawing Cleo; again, no problem.  Yet even declawed, Cleo is a terror when aroused.  She did not hesitate to attack and drive away three 70- or 80-pound family dogs when they annoyed her during some rough-housing; they learned to respect her space.  Years later, when I brought a new dog home from the pound, she promptly and, as it turned out, rightly attacked her.  She sensed that she was a cat-killer, scared her into retreat, and thus persuaded me to return her.  She quickly put the substitute in her place.  The coyote who thinks to make a meal of her will be in for one big surprise.

 

The point of relating my cat-declawing experiences is to show that the decision whether to declaw a cat depends on the proclivities of the cat, whether it tears curtains or upholstery, or whether it wounds other household cats in tussles with them.  An ordinance prohibiting declawing cats cannot be suitable for all situations and prevents owners from basing decisions on their circumstances and concerns.

 

I see this provision in a larger context.  Governments at all levels too often meddle in the private lives of citizens, even when no public good is served.  It shows that City Council lacks members sensitive to the appropriate, respective roles and responsibilities of government and citizens.  I would bet that councilors supporting this intrusive provision limiting or outlawing declawing cats object strenuously to government telling women what they can or cannot do with their bodies, and when.  Of course, an ordinance restricting or curtailing declawing cats is far from laws restricting or curtailing abortions, but the principle underlying both is the same: government intrusion into private lives and infringement of citizens’ freedom to make decisions which do not involve cruelty to other living beings, do not affect other citizens, and otherwise have no public consequences.  It is never time for governments and do-gooders to meddle in the private lives of citizens.  It is time for City Council to try to solve the big problems which affect the quality of life in Las Cruces.

REFLECTIONS ON THE 2024 ELECTION AND RESOLUTIONS FOR THE AFTERMATH

       Tuesday, November 5^th, 1605, is the date of the Gunpowder Plot, a Catholic attempt to blow up the House of Parliament in opposition to James I.  Tuesday, November 5^th, 2024, is the date of Trump’s successful attempt to win the presidency and restructure the American political system.   Like millions, I am stunned by this outcome, the more so because of my predictions of a Harris win and a “blue wave.”  I am among many of the worst of political prognosticators.  My only consolation is not that I had much company, but that I had a higher, though obviously now mistaken, opinion of the present majority of American voters.  I do not adhere to the pieties in response to political ugliness: “this is not who we are” and “there is no place in this country for [whatever is ugly]).  The results of the 2024 election are who we are at this time and in this place—at least for now. 

That voting majority has re-elected as president someone who is no mystery to them, but is a known politician who by any historical standard of previous presidents is unworthy of the office and a danger not only to democracy, but also to the safety and success of the country.  That voting majority has also elected a vice president not qualified to assume the office of the presidency—itself a fact suggesting similar dangers to the country.  In several states, that majority elected senators similar in character and convictions to those of the president- and vice-president-elect.

 

The nagging question must be how this outcome at a time when the country is enjoying peace and prosperity is possible.  Some part of the answer reflects the misogyny, racism, and xenophobia of many Americans who do not believe in the country’s most basic political principle, that all people are created equal.  This disbelief will be the cause of political mischief.  But bigotry is not the only reason for Trump’s victory, and it does not apply to many Trump voters.  Democrats will not help themselves analyze their defeat by blaming Trump voters as bigots; such an analysis assumes their own moral supremacy, blames segments of the electorate, and offers no solution other than waiting for the Second Coming, when bigotry will be no more.

 

Nor will Democrats help themselves analyze their defeat by giving undue attention to Kamala Harris and her campaign.  Whatever else may be said about her, she showed herself, by the sharpest of contrasts to her opponent, to be competent, compassionate, decent, and steady.  On the basis of character alone, the preference of a majority of voters for her opponent says more about them than her—about which no more need be said.  She ran a remarkably good campaign, but in the rush to develop and execute it, she took no time to address the flaws in it.  Haste made waste.  She did not try at the outset to explain the changes in her positions on important issues and thus put them behind her; they remained liabilities.  She also did not try to define her differences from Joe Biden—a difficult job for any succeeding vice president.  Like Hubert Humphry in 1968, who was slow and vague in separating himself from Lyndon Johnson’s conduct of the Vietnam War, she was slow and vague in separating herself from Joe Biden’s position on the Israel-Hamas conflict.  Both lost.

 

But these considerations are relatively minor ones compared to her inheritance of problems in Democratic and especially Progressive positions contested in America’s culture wars.  At about the same time as Republicans since Goldwater in 1964 began veering to the right, with an emphasis on whiteness and Christianity, Democrats since the Free Speech Movement in the same year began veering to the left, with an emphasis on social justice.  Responsive to the issues, first of the Civil Rights Movement, then the women’s liberation movement, Democrats increasingly stressed issues initially of multiculturalism, more recently, of anything or everything meant by “woke,” diversity, inclusion, equality, and, underlying the latter three, identity, with gender issues having special salience.  The moral overtones of these issues have given Democrats and especially Progressives virtue-signaling postures implying superiority to those who have not shared their attitudes and beliefs, and have led to government policies and programs which they have perceived as foisted on them.  The results: perceptions that Democrats and Progressives represent elites, who condescend to everyone else, and resentment.  Their approval and encouragement of Trump’s vulgarity, his rhetoric of violence, and his violations of norms, traditions, and laws have expressed their resentment.  Trump has been the hero who struggles and suffers for them; the more he has been “fact-checked,” prosecuted, and vilified by the elites, the more he has secured their love and loyalty.  (Parallels between Trump and Jesus are no accident.)  Democrats and Progressives have not understood this dynamic or its origins in responses to their postures, policies, and positions.

 

The other side of this emphasis on issues of “woke,” DEI, and identity has been the relative indifference to the issues which have troubled many Americans regardless of their political affiliation or orientation: the economy (inflation) and immigration as well as abortion and even climate change.  (A notable omission by both Republicans and Democrats: education.  Neither candidate had one word to say on this subject, even though the deterioration of K-12 education and beyond is the kind of internal rot which undermines societies and polities.)  Trump promised simple, unrealistic solutions; Harris offered correctives, perceived as more attacks on Trump, but not explanations, and her alternatives did not address kitchen-table concerns.  For example: Democrats addressed the economy by touting the size and growth of the GDP and the heights achieved by the stock market—all well and good, but they have not addressed the price of a dozen eggs or a gallon of gasoline.  This refusal to engage citizens, perceived or real, has been seen as more elitist indifference or aloofness.

 

Kamala Harris did not initiate such a flawed relationship with the electorate; it was her inheritance as a Democrat, and it is a continuing legacy which burdens the Democratic Party.  The response to defeat in this recent election should be soul-searching, not finger pointing.  I suggest efforts to rediscover or redefine a Democratic identity and to re-establish responsive relationships with the demos.  Harris talked about being the president of all Americans, but she never visited Kansas.  So one obvious way to achieve these objectives would be for elected and party officials to visit all the states, red as well as blue, on a regular basis, not just the “swing states” when the party wants to harvest votes in election campaigns.  These officials should question local citizens about their lives and talk with, not to, them about their concerns.  At the same time, Democrats should not abandon their principles in order to appeal or pander to those who voted against them—the situation is too grave to play politics as usual.  Instead, they should affirm American principles and Democratic beliefs, and, for the immediate future, operate as a loyal opposition so that they are creditable and credible when this administration fails the country and needs their re-invigorated leadership to recover.

EXPLAINING TRUMP'S ELECTION (IF IT HAPPENS)

 “The most important election of our times”—how many times have we heard that phrase every four years?  But this election, the phrase applies because, in no previous election for a century-and-a-half, has the issue of the survival of democracy arisen. 

As I write this blog less than a week before Election Day, the race between Democratic Vice-President Kamala Harris (and Minnesota Governor Tim Walz) and Republican former president Donald Trump (and Ohio Senator James “JD” Vance) appears to be very close in both the popular vote and the Electoral College vote.  (I still stand by my prediction of a “Blue Wave,” a November surprise, but I admit that it looks shaky.)  Once Harris replaced President Joe Biden on the Democratic ticket, the expectation was that she would dramatically improve Democratic chances of winning the presidency.  After the debate between Harris and Trump established her strengths and his weaknesses as a candidate, the expectation was that she would pull well ahead of him.  For Harris and Walz are not only strongly supported by their party, but also winning some support from the Republican party.  Indeed, former elected officials like Liz Cheney and her father Dick Cheney; senior flag officers, including those who have worked with Trump; and former White House personnel have vigorously criticized his fitness for office.  Nevertheless, at best, she has pulled even with him; neither candidate has achieved a lead in the national polls greater than the margin or error, and the same is true in the seven “swing states.”

 

Throughout the campaign, Harris has been cogent, compelling, and compassionate in her appeals to all Americans; Trump has been confused, erratic, insulting, and hateful in his appeals to his base of Christian nationalists, Catholic and evangelical fundamentalists, and other MAGA followers.  She has acted with civility and decency; he has defied decorum and indulged vulgarity.  She has “stayed on message” about, among others, abortion rights, a thriving economy, reduced undocumented immigration and crime, and moderately progressive taxes, with an emphasis on opportunities for the middle class.  He has aired his grievances about voting fraud, the 2020 “stolen election,” and politically trumped up civil and criminal charges; wavered on abortion; babbled about climate change; and stressed racist claims of uncontrolled immigration and immigrant crime as part of his more general view of America in decline (as a “garbage can”).  They also differ greatly on policies about NATO, Russia’s invasion of Ukraine, Israel’s military operations in Gaza and Lebanon, health care, gun control, and climate change.  The candidates and their policies could hardly be more different.

 

The same is true of their attitudes toward the rule of law, constitutional government, the operations of government, the agencies and people who make government work.  Remarkably, although the president-elect, in taking the oath of office, must pledge to protect and preserve the Constitution, Trump has said that he may need to dispense with regulations, laws, and even the Constitution.  (Presumably, in view of a recent Roberts Supreme Court decision, dispensing with them might be “official acts.”)

 

Given such stark contrasts, the question is how a close election is possible.  Given the early expectations for Harris to surpass Trump, the question becomes what has restrained Harris and sustained Trump in the polls.  Since Harris is well qualified by education, experience, and personality, racial and gender bigotry must play a role in retarding her ascent.  Also geographical bigotry; San Francisco, where she worked, is a by-word for uninhibited and untraditional political policies.  Trump is the antithesis of a conventional political candidate.  He is ignorant and uncurious (“unserious,” as Harris has called him), dishonest, erratic, impulsive, narcissistic, uncouth, and charged with or guilty of many and diverse civil and criminal offenses.  Bottom line: Harris is handicapped despite her assets; Trump succeeds because of his liabilities.

 

I explain this “Trump paradox” as a function of the discontents prominent in populations conservative in politics or religion.  I address religious discontents first since it is more easily understood.  Certain religious conservatives—many, but not all, evangelical fundamentalists and Catholics—are inherently imperialistic; they want religion predominant in society.  Short of controlling influence, they are frustrated, angry, and disposed to set aside inconvenient considerations of manners, morals, or religious tenets to acquire it.  Trump has courted these religious conservatives, and his appointment of three Supreme Court justices who fulfilled their promise to overturn Roe v. Wade has secured their loyalty to him and support for his candidacy.

 

The political discontents are more varied.  Some express discontent with the economy, despite its robust performance since the end of covid.  Or with levels of immigration or crime, both of which have been in decline for many months.  Or with various social policies, many of which do not affect them personally: LGBTQ+ issues, abortion, and contraception, with inter-racial marriage on the back burner.  The disregard of the facts and the disparity between their lives as lived and these political positions point to the factor which I believe matters most in this election, namely, the resentment felt by Trump supporters who believe that elites—bi-coastal, college-educated, professional or academic—scorn them.  (A special subset is the “incels,” horny single men 18 to 35, who cannot get a date, get laid, and get control of women, to whom Trump has promised to be their “retribution,” which does nothing to get them a date, laid, or control.)  To the degree that these supporters believe themselves scorned by these elites, to that degree they resent and resist information and advice from them.  Static polls indicate that endorsements by authorities or celebrities in the entertainment, social, political, or military domains like Taylor Swift, Oprah Winfrey, Liz Cheyney, and John Kelly, among many others, have failed to move these voters to support Harris.  The ultimate in rejecting authority, whether it be of persons, norms, or facts, is Trump’s liabilities which defy them.  The irony of the “Trump paradox” is that this anti-authoritarianism is the basis of his support and his authoritarianism.

 

In fairness, anti-authoritarianism is as American pie.  After all, the American Revolution was a rebellion against monarchial authoritarianism.  Unfortunately, anti-authoritarianism persisted because the colonies did not enjoy a tradition of a long-established, long-respected government; it had to invent one—which is why American democracy is often regarded and referred to as an experiment.  Its new government, however noble its intentions, lacked the authority traditionally invested in government and giving it stability.  Its governing charter, the Constitution, emerged, not gradually, with popular acceptance evolving as it evolved over the years, but suddenly, with underlying concerns about mob rule—today’s term: populism—embedded in its restrictions on representative governance, and with that great rift-maker, slavery.  What it thought was a barrier against mob rule, the Electoral College, has turned out to be ineffective because the country’s expansion was in agrarian areas, with small, undereducated, and underserved populations with long-standing resentments against “Eastern” bankers and corporate magnates, the elites of their day.  Ironically and probably unknown to him, the New Yorker Trump embodies that widespread resentment, just how widespread to become manifest in the election results, especially if he wins the presidency, in a few days.  If he does but democracy has a second chance afterwards, those who believe in the experiment will have to adjust the Constitution to accommodate, eventually to eradicate, resentment of elites.

PROTESTING ISRAEL; PROTECTING JEWS

 A personal note: I find it difficult to address the current conflict in the Middle East because it is not only extraordinarily complex and apparently intractable, but also emotionally and morally fraught.  Although unaffiliated and unobservant, I am a Jew committed to Judaism as an ethical monotheism; to its ethical principles, moral values, and historical mission; and to the survival of the Jewish people.  But I am no Zionist.  I am a Jew who empathizes equally with Israelis and Palestinians, struggles to appreciate their perspectives and positions, and tries to judge, when judgment is called for, fairly.  I do not write “as a Jew”—a phrase used by many Jews which presumes that all other Jews agree with their views.  I make no such presumption.

 

*      *      *

 

The conflict in the Middle East has exacerbated strains in relationships between Israel and the United States, and between pro-Israeli and pro-Palestinian factions in America.  Many believe that the United States and Jewish Americans are friends of Israel in its current conflicts with Hamas in Gaza and Hezbollah in Lebanon.  These beliefs are overstated.  Despite or perhaps because of US diplomatic and military support, Israel is losing, if it has not already lost, its moral standing in the international community, and America is losing its moral standing with many Muslim Americans.  I suspect that some significant number of Jewish Americans regard Israel as a Jewish state only by virtue of its majority population of Jews, not by virtue of its adherence to Jewish standards of behavior.

 

If the United States were a friend of Israel, it would do the duty of a friend: rebuke Israel for its conduct of hostilities.  It would demand much of the Netanyahu government, which is disgracing the country and discomfiting most Jews everywhere.  It would invoke international law which requires an acceptable ratio of allowable number of civilian casualties and an allowable amount of other collateral damage to the value of a military objective.  It would insist that nothing can justify the disparity between the havoc wreaked in Gaza—over 42,000 deaths (28,000 civilian), many more wounded and orphaned, and the devastation of residential and commercial areas—and the results of an unprovoked and barbaric attack—about 1200 dead and 250 captured citizens.  No law of proportionality can justify a 23-to-1 ratio of civilian deaths alone or the displacement and suffering of nearly two million people to neutralize an enemy.

 

If it were true to itself in its belief in the rule of law in international affairs, it would no longer tolerate—it should never have tolerated, much less become complicit in—Israel’s deviance from international law.  It would stress Israel’s interest in maintaining or restoring its standing in the international community.  It would support UN resolutions demanding the return of Israeli-occupied land in the West Bank and the establishment of a Palestinian state.  It would remove the American embassy from Jerusalem and urge international control and operation of the city.  It would invoke Jewish principles and values in demanding that Israel comply with international norms of warfare and support humanitarian efforts to relieve civilian suffering in Gaza and Lebanon.  It would not enable Israel’s offensive operations by supplying offensive weaponry (though it would still provide defensive assistance on an as-needed basis).  It would implement diverse sanctions to help enforce those UN resolutions.

 

If it were respectful of Jewish Americans, it would recognize that Jewish American opinion about current hostilities is not monolithic, and repudiate the angry, irrational view that Jewish Americans are blameworthy because of the conflict and its casualties.  It would respect that many Jewish Americans, some prominent on college campuses, are appalled by and protest Israel’s military operations and Netanyahu and his government’s policies and practices.  It would acknowledge that some are not appalled and support those operations, and that those represented by the American Israel Public Affairs Committee (AIPAC), which wields enormous political power in Washington, D.C., are, nevertheless, a minority.  It would act in accordance, not with one or the other side of this divided Jewish American populace, but in America’s interest in promoting Israel’s best interests.  However, given this divide among Jewish Americans about what it best for Israel, it would be careful about the policies which it adopts and implements.

 

If it were thus respectful of Jewish Americans on both sides of the issue, with their different opinions about the conflict, it would not intervene in support of one side or the other.  It would protect the Constitutional rights of Jewish Americans to protest Israeli conduct in these conflicts.  It would protect the institutions of higher education which protect the protesters from federal coercion by Republican threats to their accreditation or federal funding.  It would shield colleges and universities from AIPAC and its Republican and Christian fundamentalist allies, with their political or antisemitic agendas, who wish to punish colleges or universities which permit anti-war, anti-Israel, or pro-Palestinian (but not antisemitic, anti-Islamic, or anti-Muslim) protests.  It would also ensure that AIPAC’s rights are protected from those who oppose its positions.

 

America should be respectful of Jewish Americans—no more and no less than of Americans with other religious commitments—, yet aware that being respectful of this particular minority presents many dicey issues at all levels of government.  Conceptual confusions and conflicting political positions add to the difficulties.  For example, the definition of antisemitism by the International Holocaust Remembrance Alliance has been widely criticized for including anti-Israel criticism.  Difficulties with the IHRA definition complicate an understanding of antisemitism and efforts to address it.

 

In their political actions, officials understand printed signs, shouted slogans, and social media messages with antisemitic words or images as antisemitic.  But, in their administrative actions, they often deny as antisemitic less obvious evidence of antisemitism.  Examples are decisions not to investigate complaints, investigations conducted perfunctorily, and investigative conclusions ignoring the evidence or avoiding explanations.

 

A local instance is the top-to-bottom dereliction of duty in response to a formal complaint involving antisemitism when an Animal Control Officer made five false allegations.  Three LCPD police chiefs and several ranking officers ignored a request for an explanation of the falsity of the allegations.  IA undertook no investigation of the complaint for six months.  The IA’s close-out report ignored the allegations in the complaint although its investigation found that they were unsupported.  A year later, the City Attorney even claimed that the allegations were true.  The LCPD refused to remove the notice of false allegations from its files.  While this complaint was active for five years, every member of City Council ignored it except to ensure its omission from review by the independent police auditor.  Indeed, one Councilor, after reviewing relevant documents, offered a sharp denial that they suggested antisemitism, without explanation.  City officials and LCPD officers who disregard due process, ignore bias-based policing in a case of antisemitism, and show themselves antisemitic are predisposed to comply with policies or practices which would constitute a potential threat to local minorities and protesters, and lead to violations of their civil rights.

 

For the commitments of the guardians of public order are suspect.  Police departments are staffed by many conservative-minded officers who share prevalent prejudices against minorities and who dislike liberal protesters.  They are riddled by officers prone to violence or tolerant of it by others in violating the rights of minorities and protesters; the “bad apples” spoil the barrel.  A change of leadership or political climate can affect their performance for the worse.  When such an incident involving the police occurs in Las Cruces, shocked protestations of innocence, that it does not represent “who we are,” by city officials and LCPD officers will be contradicted by those who know better.