It is too early to despair; the real Judgment Day will be in 2028.

Thanks to Power Line!

A. Despair is a sin; the mid-terms were not all bad; we must continue to fight

Last Tuesday’s election results were certainly a disaster, but it is important to maintain perspective and not become overcome by gloom. The Danish philosopher Soren Kierkegaard warned that “despair is a sin,” so we must use the mid-term defeat as a lesson for future battles, and not an excuse to give up. 2028 looms. What lessons can we learn?

1. In many states, including blue states, voters supported conservative ballot measures that defy the “lurch to the left” narrative. Examples:

Right here in Tennessee, three “conservative” ballot measures passed handily, with vote totals easily exceeding the winning margins enjoyed by Marsha Blackburn and Bill Hagerty. Tennessee voters, despite the foolish calls from some shrill voices on the right, voted to tighten bail eligibility, ban state property taxes, and increase victims’ rights. Elsewhere, California voters rejected the “billionaire’s tax” supported by the state’s powerful labor unions. Moreover, numerous states enacted election integrity measures. As reported in the Tennessee Star, “Alaska, Arkansas, Kansas, South Dakota, and West Virginia all passed citizenship requirements for registered voters, while Ohio, Nevada, and North Carolina approved new voter-ID policies.” And that’s not all.

In Florida, Amendment 3, delivering property tax relief, passed overwhelmingly by a 62 percent to 38 percent margin. Conservative victories were not limited to economic issues. On the culture war front, National Review reports that “voters struck back at letting men and boys into women’s and girls’ sports, with bans passing in Nebraska and appearing to pass in Washington and Colorado, while a ban on males in female bathrooms, locker rooms, and other private spaces passed in Arizona.” The College Fix reports that “A ballot measure that bans public employers from giving preferential treatment based on race or sex was approved by Wisconsin voters in the Nov. 3 midterm election, with 56.5 percent of the vote.” This includes public colleges and universities. Hardly a left-wing revolt!

All is not lost. Americans are still sane and sentient. The mid-term elections were a tantrum, not a tsunami. The real test will come in 2028.

2. Unity is critical.

In the meantime, we can also conclude that “conservative” support for third party candidates, such as “Independent” gubernatorial candidate David Hatley (who ended up with 9.3% of the vote) can tilt the balance in favor of leftist Democrats. Supporting third-party candidates is an idiotic strategy that mainstream Republicans should deplore, especially for flawed candidates bearing as much baggage as convicted felon Hatley. “Conservatives” who engage in this are divisive actors undermining the unity required for success in politics. Shame on Hatley supporters (and Amendment 1 opponents). No GOP officials should be supporting third party candidates, period. A house divided against itself cannot stand.

3. Blocking and tackling.

Finally, even in bright red Tennessee, we learned that the GOP ground game—voter registration and GOTV—were weak. Democrats are better organized on the ground. Republicans can and must do better. Correcting this prior to 2028 should be a major priority for the Tennessee Republican Party and county-level organizations such as the Williamson County GOP. Governor-Elect Marsha Blackburn should have a candid conversation with TRP executive director Scott Golden, and the entire SEC, and “motivate” them to fix the moribund TRP organization. We need an effective ground game at the state and local level, meaning energizing and empowering the grassroots to combat the left’s well-funded machine. This should be at the top of Governor-Elect Blackburn’s to-do list.

B. I’m not a Pollyanna; Armageddon beckons in 2028

Last Tuesday’s elections were certainly a disappointment, and for some formerly red states (such as Texas) the electoral shift will be a disaster—at least in the short term. What does the loss of a GOP majority in Congress mean for the MAGA agenda? Remember, the newly-elected Democrats don’t take office until January 2027. Here’s my assessment:

1. Expect resistance by blue states and rogue judges to escalate for the remainder of President Trump’s term, especially regarding enforcement of federal immigration laws—including the deportation of illegal aliens. The goal will be to obstruct and delay as much as possible in the hope that Democrats gain control of the White House in 2028.
2. Getting a conservative Supreme Court justice confirmed in the next two years is highly unlikely. This is not a major concern, since both of the oldest conservative justices (Thomas and Alito) have indicated that they do not intend to retire. However, justices cannot control their health and mortality, as Justice Ruth Bader Ginsburg proved when she elected to remain on the Court until her death in 2020.
3. If Republicans cannot retain the White House in 2028, things will be very different. Any Supreme Court vacancies will be filled with extreme left-wing activists–radicals. With or without vacancies, Congress may “pack” the Court by expanding it to 13 and filling the new seats with woke justices who will legislate from the bench. Statehood for D.C. and Puerto Rico would permanently stack the Senate in the Democrats’ favor. And of course a return to open borders, Medicare for all, wholesale reversal of Trump’s policies (and rescission of his E.O.s on day one), and veto-free enactment of every absurd bill that left-wing special interests clamor for. Possibly also eliminating the Electoral College.
4. In the sort run, Democrats in Congress will persecute and harass President Trump and his administration with investigations, subpoenas, and impeachments. The media will cheerlead.
5. We have seen the high-water mark of the MAGA agenda. There will be an exodus from executive branch agencies. Harmeet Dhillon’s departure is only the first of many. No competent conservative will be willing to risk their reputations, livelihoods, and financial security in the face of the Democrats’ vicious threats of retribution. Democrats intend to scorch the earth to “get even” with MAGA stalwarts.
6. While Republican still enjoy a majority in the Senate, they should confirm as many of President Trump’s judicial nominees as possible. Leaving unfilled judicial vacancies in the lame duck session would be a travesty. But I am not optimistic due to our do-nothing Congress.

Losing the mid-terms in a rout was bad; losing the White House in 2028 would be fatal to the republic—truly Armageddon. Republicans nationwide have to devote themselves over the next two years to fixing the messaging, inadequate field organization, lack of unity, and policy agenda to make sure that the GOP nominee for President (whoever that may be) wins in 2028.

C. Tennessee Supreme Court ruling re Nashville Metro Council

D.C. is a swamp, and the lower federal courts are a mess, but Tennessee is a shining example of what an originalist judiciary should look like. Few Tennesseans appreciate how solid their state judiciary is. For example, and as reported recently in the Tennessee Star, the five-member Tennessee Supreme Court upheld a state law that capped the size of the elephantine Metro Nashville Council (which currently has 40 members) to 20 members—a 50% reduction. The case, Metropolitan Government of Nashville and Davidson County, et al.  v. Bill Lee, Governor, et al., was decided on November 2. According to the state supreme court’s press release:

In March 2023, the General Assembly enacted a statute capping the size of metropolitan councils at 20 members. Metro Nashville and a group of Davidson County residents sued state officials alleging that the law violated the Tennessee Constitution. First, the plaintiffs argued that cap’s enforcement violated article XI, section 9’s Local Legislation Clause, which prohibits the General Assembly from enacting certain laws that are “local in form or effect” without the locality’s approval. Second, the plaintiffs argued that the cap violated article VII, section 1’s Exemption Clause, which exempts metropolitan councils from certain requirements applicable to county executives and county legislative bodies.

A divided three-judge trial court panel held that the cap violated both the Local Legislation and Exemption Clauses. On appeal, a divided Court of Appeals reversed, holding that the cap violated neither constitutional provision.

The Tennessee Supreme Court granted review. But after the case was argued, the General Assembly amended the challenged law by removing the language that formed the basis of the plaintiff’s Local Legislation Clause challenge. [The original statutory language had prescribed a procedure for reducing the size of the council; the amended legislation left that up to the metro government.] The Tennessee Supreme Court held that the amendment ended the legal controversy concerning the Local Legislation Clause and rendered the plaintiff’s Local Legislation Clause challenge moot. The Court therefore dismissed that part of the appeal.

The Court concluded that the amendments did not moot the plaintiff’s Exemption Clause claim and therefore addressed that claim on the merits. The Court held that the 20-member cap does not violate the Exemption Clause because that provision only exempts metropolitan councils from certain constitutional requirements and does not prevent the legislature from imposing statutory restrictions. The Court therefore affirmed the Court of Appeals’ holding that the law does not violate the Exemption Clause.

The state supreme court’s opinion, written by Justice Sarah Campbell (a former Alito clerk and aide to General Skrmetti) appointed by Gov. Bill Lee in 2022, was unanimous. Keep in mind that cities and counties are considered “political subdivisions” of the state. They are not autonomous fiefdoms, although Davidson County and the city of Nashville sometimes act as if they are. They are subordinate to the GOP-controlled General Assembly.

Counties and cities typically operate separately with distinct elected bodies, increasing political accountability. A 40-person body operating a merged (or “consolidated”) city-county body is an unwieldy, unaccountable behemoth. The Metro Nashville Council was created in 1963. In 2023, the General Assembly capped the size of the council to 20 members. At the time of H.B. 48’s enactment, Metro Nashville was the only metropolitan government with a council size exceeding twenty members. (There are only three such metro governments in Tennessee.)

The Court’s originalist focus is clear from Justice Campbell’s opinion:

Our north star when interpreting a provision of the Tennessee Constitution is its original public meaning. McNabb v. Harrison, 710 S.W.3d 653, 658 (Tenn. 2025). We determine a provision’s original public meaning by asking “how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.”… We hold that the Exemption Clause relieves consolidated governments of the constitutional requirements imposed on legislative bodies in article VII, section 1, paragraph 2. But it does not prevent the legislature from imposing other requirements. We therefore agree with the Court of Appeals that the legislature’s twenty-member cap on metropolitan councils does not violate the Exemption Clause.

What is the significance of the decision? The Nashville Banner framed the issue thusly:

This particular issue has been a key battle in the larger war between mostly blue Metro Nashville and the largely red state legislature. Led by House Majority Leader William Lamberth (R-Portland), the legislature originally passed the law capping the Metro Council’s size in 2023, after which the issue escalated through the courts.

The issue is who runs Nashville/Davidson County? Is it autonomous, or a “political subdivision” of the state? The General Assembly put Metro Nashville on a leash, and our excellent state supreme court affirmed that the legislature had the authority to do so.

D. Miscellany

1. The wages of Obergefell; SSM evolves into polygamy (and worse)

Back when same-sex marriage was under discussion, prior to the Supreme Court’s controversial ruling in Obergefell v. Hodges (2015), critics often argued that moving away from the time-tested model of marriage as the union between one man and one woman would lead to a “slippery slope.” Eventually, opponents of SSM argued, misfits would be clamoring for even more exotic forms of “marriage” arrangements, including multiple parties and even different species. The “parade of horribles” included incest, bestiality, and polygamy. These arguments were condemned as absurd and “homophobic.”

Well, the city of West Hollywood in California has now vindicated the critics of SSM. According to the New York Post,

Throuples, foursomes and other multi-partner relationships can now register as domestic partners in a Los Angeles County city after its city council unanimously approved new legal protections for polyamorous couples.

West Hollywood passed the ordinance Tuesday after it was introduced by Mayor John Heilman.

The measure allows people in relationships involving multiple partners to officially register with the city, granting them certain rights, including hospital visitation and additional tenant protections.

Don’t say we didn’t warn you.

2. Oral argument in Trump’s criminal case

The “hush money” case against President Trump, presided over by the biased hack Juan Merchan, is on appeal. (In May 2024, a Manhattan jury found Trump guilty of 34 felony counts of falsifying business records in connection with his payments to Daniels. Despite the felony conviction, the judge in the case sentenced Trump to an “unconditional discharge,” meaning he served no jail time.) Oral argument before a five-judge panel at the First Department, Appellate Division, was held last Thursday. According to news reports, the judges appeared to be divided. The judges didn’t immediately rule.

Should Trump lose his appeal of the verdict to the First Department, he can then appeal to the state’s highest court, the Court of Appeals. It is likely that the case will not be resolved until after President Trump leaves office.

3. Goodbye, Electoral College?

One immediate impact of the mid-term rout, at the state level, is that proponents of the controversial National Popular Vote Interstate Compact may gain enough support to pass the controversial measure, which would effectively moot the Electoral College and determine the presidency based solely on the popular vote nationwide. California, New York, Illinois, Texas, and Florida could determine the outcome of presidential elections. This would be a thumb on the scale for Democrat candidates. Smaller states would be ignored in future campaigns. The constitutionality of the Compact is untested and, frankly, dubious. From the Daily Signal:

Democrat dominance at the state level will have major national implications. One of the biggest could be that several state legislatures are far more likely to sign on to the National Popular Vote Interstate Compact.

“Democrats have won control of the governorship and both legislative chambers in Pennsylvania, Michigan, Arizona, Wisconsin and Nevada, enough to push an agreement called the National Popular Vote Interstate Compact beyond the 270-vote threshold required to take effect,” Axios reported Wednesday.

The popular vote compact is essentially an agreement between states stipulating that they will tie their Electoral College votes to the national popular vote during presidential elections. The compact only kicks into effect once states with a total of 270 electoral votes—a bare majority to win the presidency—agree to it.