Senators Be Warned: Latinos Could Remember Gorsuch Votes at Re-Election Time

Political consultants who advise candidates for elective office in the United States are, by and large, very capable at analyzing past elections. They are, however, as humans, understandably less adept at anticipating future changes in electoral behavior. Also unsurprisingly, given the lack of diversity in their ranks, political consultants in general may be least skilled at forecasting changes among minority voters, and among Latino voters in particular.

This week, those consultants may have advised United States senators, from both parties, in states with significant and growing Latino electorates, that their votes on confirming Neil Gorsuch, Donald Trump’s nominee to succeed the late Justice Antonin Scalia, and on the even more troubling prospect of blowing up the traditional requirement of 60 votes to consider a Supreme Court nominee, will not be factors in their future election prospects. There is, however, good reason, at least with respect to Latino voters, to question the conclusion behind this advice – that significant numbers of voters will not be motivated by senators’ votes on such matters, which are seen as remote from the immediate concerns of the electorate.

Part of the problem with this advice, as to Latino voters, is that it may rest in part on the longstanding, absurdly reductionist conclusion that Latinos are a single-issue constituency focused solely on immigration. This suggests then that a senator who votes to confirm Gorsuch could overcome any Latino animosity through immigrant-friendly rhetoric and policymaking. Reducing Latinos to single-issue voters has always been logically faulty, a problem compounded in this case by an equally unsupported conclusion that Latino voters will perceive the Gorsuch-related votes as separate from immigration policy, even as more and more immigration cases end up on the Court docket.

Although both parties have room for progress in shifting Latino votes their way – best accomplished through candidates who demonstrate real, attentive, and supportive interest in Latino concerns – the main issue in the Latino electorate is turnout, rather than voter preference. Specifically, the key inquiry is what will motivate Latino voters to come out and vote. There are several reasons why senators’ votes on the Gorsuch confirmation and on eliminating the 60-vote threshold could be strong motivators for Latino voters in 2018, 2020, or even 2022.

The first factor is, of course, Donald Trump himself, who will forever be associated with Gorsuch as his nominator. Having commenced his campaign with a slur against Mexican immigrants, then followed up by slandering an eminent federal jurist whom he accused of bias based solely on the judge’s Mexican ancestry, Trump received predictably abysmal levels of Latino support at the polls last November. Moreover, since inauguration, Trump has pursued a course of extremely derogatory rhetoric against Latino immigrants, attempting to characterize them all as actual or inchoate criminals. Trump has also accused, without a scintilla of evidence, millions of immigrants (the obvious subtext: mainly, if not entirely, Latino) of having voted fraudulently for his opponent. The first time a confirmed Gorsuch casts the deciding vote in a Supreme Court case involving the Latino community, the media will once more highlight his Trump connection. Latino voters will be freshly reminded of their senators’ involvement in seating Trump’s appointee.

Second, there will be increasing reason for Latinos to attend to the Supreme Court’s decisions. As the nation’s largest minority group continues to grow, an increasing portion of the Court’s docket – particularly in the civil rights arena – will involve the Latino community. In addition, Trump’s own practices may bring more and more immigration-related cases to the Court, with a palpable effect on policy in an area of great concern to Latino voters. Just this last term, the Court considered not only the case involving President Obama’s deferred action immigration initiatives, but also a case challenging the right of immigrants to be counted in drawing electoral districts, and a key reproductive rights case out of Texas, one of our most Latino of states. As this trend continues, Latino voters will follow Court outcomes – and the role of Gorsuch – more closely, reminding them of the important decisions being made this week on confirmation and the 60-vote threshold.

Third, the Latino electorate may prove keenly attentive to cynical, politically motivated changes of the “rules.” Many in the Latino community already have a strong sense that prevailing “rules” in many contexts are changed – or at least proposed for change – just as Latinos reach a point of prominence and influence. Take a case just litigated by MALDEF. The city of Pasadena, Texas shifted its city council from eight districted seats to a hybrid of six districted seats and two members elected from the city at large. The sole purpose of the change was to prevent the Latino community from achieving a majority on the council, as it was on the cusp of accomplishing. More abstract but equally influential, many Latinos have the distinct impression that the informal “rules” of representation in mainstream media – film, television, news – for the nation’s largest minority group changed once Latinos achieved that status over a decade ago. How else to explain gains in diversity while Latinos remain the most severely underrepresented group based on the gap between population and media presence.

With this sensitivity, Latino voters may focus on two rules changes that surround Gorsuch. First, the fact that President Obama nominated someone for the Scalia seat who never even got a confirmation hearing will long resonate for many Latinos as a troublesome rules change by Senate leadership. Second, the so-called “nuclear option” to eliminate the 60-vote threshold for Court appointments will strike many Latino voters as akin to the cynical, politically expedient changes that the Latino community has confronted in other circumstances. These alterations of the rules may prove long-lived in the minds of Latino voters, particularly if Gorsuch is on the wrong side of a 5-4 decision going against the Latino community in May or June of a senatorial election year.

Finally, the Latino community may soon perceive that a confirmed Gorsuch is participating as a justice in more troubling constitutional “rules” changes, undertaken by the Court just as Latinos become more and more prominent in the nation’s population. Most illustrative is the Court’s troubling and developing recognition of personal rights for entities – corporation and privately held businesses – that then override, in practical terms, the rights of human beings. The Citizens United decision, granting corporations cognizable free-speech rights, and the Hobby Lobby decision, in which Gorsuch participated prominently in the Tenth Circuit, according religious liberty to businesses, exemplify this trend. As more and more Latinos and Latinas are among the persons whose own rights are overridden by these newly-recognized rights of non-human entities, Latino voters may detect the kind of troubling constitutional rules changes that parallel the Latino community experience.

In short, any senator, from either party, in a state with a growing Latino population and an increasingly influential Latino electorate, would do well to pause and reconsider before adopting political advice that the Gorsuch confirmation and the nuclear option won’t have influence come re-election time. Latino voters, a growing and dynamic electorate, may well have long – and motivational – memories when it comes to these two issues.

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